Berkeley Sunshine Ordinance a Long Time Waiting

The lack of
government transparency in Berkeley means that citizens have little
recourse when they're denied access to public records. And it even
causes problems for city officials. There are occasions when the council
or a commission will render a decision without understanding the issue
at hand, having received background documentation only minutes before a
vote.

For several years, the Citizens' Sunshine Committee has been
working an open-government ordinance, and it's collecting signatures to
place a ballot initiative before Berkeley voters in 2012. "There's so
much going on behind the scenes with staff — we as citizens are just not
getting a picture of what's going on in the city," said Dean Metzger,
sunshine committee chair and one of the initiative's authors.


But the proposed ordinance, which would have the toughest enforcement
mechanism in the state, has sparked opposition: "Just because you call
it sunshine, doesn't mean it's sunshine," said Councilman Laurie
Capitelli, arguing that the proposed ordinance would be both costly
and time-consuming. He underscores, however, that he wants a more open
city government — just not the one the sunshine committee is advocating.


The proposal would apply to the rent board, the library board of
trustees, and other commissions, as well as the council. But just
talking about it has become an issue. Metzger said the sunshine
committee asked the council a number of times to schedule a workshop on
draft versions of the ordinance to get councilmembers' input. He said
after months of requesting a workshop without success, and completing
the final document without council input, the committee decided to take
the initiative directly to voters. Capitelli said the council was
waiting for a finalized document from the sunshine committee before
setting a workshop date.

However, the decision to begin collecting signatures apparently is
not sitting well with Mayor Tom Bates. Councilman Kriss
Worthington, who has advocated for a sunshine ordinance since 2001,
said he placed a request for a sunshine workshop on the council's agenda
committee for this week. However, Bates, who chairs the agenda
committee and who did not return calls for comment for this story, has
said publicly that he will not discuss the proposed ordinance unless the
sunshine committee drops its ballot initiative.


One of the most contentious aspects of the proposed sunshine
ordinance is that it would establish a council-appointed watchdog
commission with strong enforcement powers that would hear complaints
about alleged open-government violations. Decisions by the commission
could be appealed to the council, but if the council says a violation
hasn't occurred, the commission could then sue the city — and the city
would have to pay both sides of the suit.


Capitelli believes the costs could be prohibitive. "Should this wind
up as contentious as one might think," he said, "we're going to be
forced to hire outside counsel for that watchdog commission." The
initiative also would give the commission extraordinary power to oversee
the council, Capitelli said.


But from Metzger's point of view, the enforcement mechanism is
essential. "Without enforcement, we can throw away everything we've
done," he said. He and former mayor Shirley Dean, a co-author of
the initiative, also believe that a lawsuit wouldn't be necessary to
enforce the law in most cases. For example, Citizen A says the planning
department hasn't given her the documents she requested. So she goes to
the watchdog commission, which then calls the city manager to a hearing
to explain why the citizen hasn't received the documents. The process
could end right there, Dean said: "I bet nine out of ten times, the
manager would say, 'Give her the records' and that's the end of it."


Still, sunshine laws in other cities don't include the same lawsuit
provision. Oakland's Sunshine Ordinance, which is often
criticized for being too weak, is overseen by the Oakland Public
Ethics Commission — a panel that doesn't have the power to take the
city to court and make the city pay for it.

Dan Purnell, executive director of Oakland's ethics
commission, says the city's sunshine law isn't perfect, but works in
most instances. If a city agency violates a meeting requirement — such
as not noticing a meeting correctly — the commission will ask the
responsible city agency to correct the mistake. The commission may ask
the agency to re-do part of a meeting, for example. Oakland agencies
never refuse to correct these types of errors, Purnell said.


Alleged public records violations, however, are more complex. If
citizens think they have the right to a document an agency says is
confidential, they can file a complaint with the ethics commission.
Purnell then brings the citizens and department representative together
for an informal mediation session. "I've found this to be very
effective," he said.

If mediation doesn't satisfy the complaining party, a hearing is held
before the commission. At this point, the agency usually produces the
records requested, Purnell said. If the agency continues to withhold the
document, the citizen can take the city to court. But in Oakland, the
citizen, and not the commission, is responsible for the lawsuit.


The initiative also addresses the problem of staff giving documents
to councilmembers, commissioners, and the public too late to read and
consider before decisions are made. The initiative requires distribution
of background documents well before the meeting where they will be
discussed. "We want eleven days for the public and the council to read
that packet and know what they're voting on," Dean said. Oakland's
sunshine ordinance mandates such materials be available for ten days.


Capitelli said he agrees with the intent of this section, but thinks
the time provision may be unreasonable: "I must admit — and I've
expressed it in public before — that I'm frustrated when I get a report
handed to me at a quarter to seven, when the council meeting is going to
start at seven," he said. However, he said an eleven-day lead time is
excessive. "I would like us to have those reports, ideally, a week
before" the meeting, he said.


Other issues considered in the initiative include mandating that
members of the public get three minutes to speak on agenda items; moving
meetings to a larger venue when attendance exceeds capacity; making
public officials and department head calendars public; repeating closed
session votes in open session; posting reports from the regional bodies
to which councilmembers belong; registering lobbyists; and more.



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