City

Citizens’ sunshine law to go on 2012 ballot

By John C. Osborn

After 10 years of discussion and 24 draft ordinances, the residents of Berkeley will soon be able to vote on a new open records law.

On Tuesday December 14, the  Berkeley City Council will vote to place the “Berkeley Sunshine Ordinance,” a citizens’ proposal to make Berkeley city government more transparent, on the November 2012 ballot.

The open records ordinance contains a slew of provisions that would give residents greater insight into virtually every aspect of government operations, be it attorney-client (council) communiques, online access to appointment calenders, or public employee records. But, a recent staff report warns that the proposed ordinance could become a bureaucratic and fiscal headache for Berkeley, costing as much as $2 million annually,


The ordinance, crafted by the Berkeley Sunshine Ordinance Citizens’ Committee, is like the Brown Act on steroids, covering a wide range of open government issues under the rationale that increased transparency and public participation is paramount to a healthy democracy. The ordinance would apply to the City Council, every committee and commission, the Rent Stabilization Board, Board of Library Trustees, and even a few private corporations subject to the Brown Act. Below is a list of the more sweeping provisions of the proposed ordinance:

  • Bigger Soapbox: Public commentators would have an extra minute (three total) to talk about an issue and could, if they wanted to, speak to every single agenda item at a meeting. During public hearings, the amount of time for speakers to say what they want to say is greatly expanded.
  • Miniaturized Initiative Process: Members of the public would be able to place an item on the City Council agenda if 100 signatures are mustered – 50 signatures for any commission.
  • This Venue is Too Small: If at any time there is not enough space in the council chambers to accommodate the number of people present, the council would have to adjourn to a larger location while still providing other mandates in the process, such as a live television feed.
  • Behind Closed Doors: The council would have to not only report how members voted during closed session, regardless of whether action was taken, they would have to vote again in public.
  • Preparation is Perfection: Agenda packets would have to be distributed no later than 11 days before the meeting while a number of restrictions also apply, such as no emergency items by the council except under extremely narrow circumstances.
  • Let the Records Flow: Any record that is not restricted to the public would be made available online, such as economic conflict of interest forms, campaign finance data, and appointment calenders. Even certain restricted information would be shined on, such as certain communiques between the city attorney and council about pending litigation.
  • Who Watches the Watchers: The ordinance would give birth to an Enforcement Commission that would, essentially, be “above” the council in certain regards: independent legal representation, the ability to draw from the legal fund, powers to sue the City over sunshine violations, and the authority determine whether allegations of sunshine wrongdoing are founded.
  • With Whom Are You Having Lunch? The ordinance would require top city officials to keep their appointment calendars online, and to update them weekly.
  • Early Bedtime: Berkeley City Council meetings, which have been known to go on for hours, would have an 11 pm curfew under the proposed ordinance.

The city has hosted a number of workshops in order to hash out a sunshine ordinance, and there have been 24 draft sunshine ordinances proposed in the last 10 years. In 2007, a group of citizens frustrated by the process drafted its own version of the law. In March, the group started circulating a petition to place the ordinance on the ballot, and on November 22, 2010, the Alameda County Registrar of Voters determined the group had collected enough valid signatures for it to qualify. On Tuesday, the city council will vote to formally place the measure before voters.

City officials, concerned about the breadth and expense of the ordinance, may try to preempt the ordinance by adopting their own open records law in 2011.

The staff report on the proposed ballot measure brings up a number of concerns. Fiscally, the ordinance would cost the city a one-time fee of $35,000 and $2 million a year to enforce all of its provisions, a number the sunshine committee disputes; and that does not factor in how much money may be spent on potential litigation due to violations.

Also, the staff report points out that a number of the provisions could cause headaches for city staff, such as the mechanism for citizens to place an item on the agenda. Under the new rules, anybody, including a minor, could sign the petition as long as they live in Berkeley, so the the city would have to verify residency rather than voter registration information — a more difficult ordeal.


Another staff concern is about the closed session disclosures and attorney-client communiques, Since the proposed ordinance would require the city to reveal all votes taken in closed-door sessions, even those that were advisory, it may provide parties suing Berkeley intelligence on the inner discussions about litigation.

With the victories and defeats of the past election still fresh in the public consciousness, it’s looking like Berkeley’s first ballot initiative for 2012 is already a-go as a mirror version makes its way through the City.

The “Berkeley Sunshine Ordinance,” a.k.a. open government ordinance, contains a slew of provisions that would give residents here the Superman-like power of x-ray vision into virtually every aspect of government operations, whether it be attorney-client (council) communiques, online access to appointment calenders, or public employee records. But a recent staff report, expected to be discussed at the city council meeting Tuesday, warns of what could become a bureaucratic and fiscal headache for the city if the ordinance is approved by voters.

The ordinance, crafted by the Berkeley Sunshine Ordinance Citizen’s Committee, is like the Brown Act on steroids, covering a wide range of open government issues under the rationale that increased transparency and public participation is paramount to a healthy democracy. The ordinance would apply to the City Council, every committee and commission, the Rent Stabilization Board, Board of Library Trustees, and even a few private corporations subject to the Brown Act. Below is a list of the more sweeping provisions of the proposed ordinance:

  • Bigger Soapbox: Public commentators would have an extra minute (three total) to talk about an issue and could, if they wanted to, speak to every single agenda item at a meeting. During public hearings, the amount of time for speakers to say what they want to say is greatly expanded.

  • Miniaturized Initiative Process: Members of the public would be able to place an item on the city council agenda if 100 signatures are mustered – 50 signatures for any commission.

  • This Venue is Too Small: If at any time there is not enough space in the council chambers to accommodate the amount of people present, the council would have to adjourn to a larger location while still providing other mandates in the process, such as a live television feed and ADA access.

  • Behind Closed Doors: The council would have to not only report how members voted during closed session regardless of whether action was taken, they would have to vote again in the pubic.

  • Preparation is Perfection: Agenda packets would have to be distributed no later than 11 days before the meeting while a number of restrictions also apply, such as no emergency items by the council except under extremely narrow circumstances.

  • Let the Records Flow: Any record that is not restricted to the public would be made available online, such as economic conflict of interest forms, campaign finance data, and appointment calenders. Even certain restricted information would be shined on, such as certain communiques between the city attorney and council about pending litigation.

  • Who Watches the Watchers: The ordinance would give birth to an Enforcement Commission that would, essentially, be “above” the council in certain regards: independent legal representation, the ability to draw from the legal fund, powers to sue the City over sunshine violations, and the authority determine whether allegations of sunshine wrongdoing are founded.

For years, community members and the City have searched for sunshine. The city has hosted a number of workshops in order to hash out a sunshine ordinance, and there have been 24 draft sunshine ordinances proposed since then. While the City has tried to find its own slice of sunshine, the sunshine committee, born out of one of the workshops in 2007, drafted its own version of the law and acquired the necessary signatures to place it on the ballot for 2012.

The staff report that will be the topic of discussion Tuesday brings up a number of concerns about this ordinance. Fiscally, the ordinance would cost the city a one-time fee of $35,000 and $2 million a year to enforce all of its provisions; and that does not factor in how much money may be spent on potential litigation due to violations.

Also, the staff report points out that a number of the provisions could cause headaches for city staff, such as the mechanism for citizens to place an item on the agenda. Under the new rules, anybody, including a minor, could sign the petition as long as they lived in Berkeley, so the the City would have to verify residency rather than voter registration information.

Another more interesting concern is about the closed session disclosures and attorney-client communiques. The report raised concern about how parties suing the City could gather intelligence on the inner discussions about litigation, potentially strengthening that parties position when it came to settlements.

The road to sunshine has already been a long cloud-covered one, but the question Berkeley voters will have to ask when the time comes is whether sunshine trumps secrecy, even when that secrecy is paramount to city function. The only X factor in the debate is the City’s version of sunshine, which the council will discuss again in January. How that plays out could determine how the initiative version plays out in the polls.

Until that time comes, expect partly cloudy skies with a chance of showers.