Citizens’ sunshine law to go on 2012 ballot

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.

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  • DC

    Methinks the lady doth protest too much…

    Is some of this excessive? Sure. I can barely keep up my own calendar – the requirement to post one and maintain it weekly is a well-meaning piece of wording that will result in no action and at best disclose many in government as procrastinators. And “bigger soapbox” and “early bedtime” will directly conflict. But really – if they don’t like this government has had 10 years to come up with a better version, and have not done so. If you can’t take action in 10 years this is what you get. It’s way better than what we have now.

    And it’s a great example of syncro. Berkekelyside itself has been abuzz this week over the lack of transparency into the P&J commission, lack of minutes, etc. Do we set the pace or what? kidding – but not really…

  • StevD

    Well if Berkeley City Council meetings aren’t slow enough for some folks and don’t allow for enough ongoing commentary by the most bizarre and myopic citizens focused on issues that have nothing to with how a city runs, I guarantee this ordinance will open Pandora’s Box. Are we sure that Monte Python and the Flying Circus didn’t write this ordinance? I see some distinct similarities to Ministry of Funny Walks in here. Where’s John Clease when we need him!

  • Alan Tobey

    The best sign of “Berkeley, we have a problem” with this proposed sunshine ordinance was when the League of Women Voters stopped participating in the self-selected “citizens committee” after (as one LWV member told me privately) “tearing our hair out” over the direction the effort had taken. I look forward to their always-dependable analysis of the final plan from their usual good-government perspective, and I surely don’t expect their endorsement.

    What began as a well-intentioned attempt to provide better access to public records and more consistent standards for public meetings has turned into a sort of politicized tea party-style attempt to cripple a city government that our perpetual anti-everything naysayers have found “unresponsive” — meaning that after due consideration the council has often disagreed with the loudest public speakers at council meetings, clearly because of their “secret backers” behind the scenes. As if the vote of the small minority of citizens who speak at public meetings, and no other input, should determine the outcome of every question at issue. But that’s what, in practical terms, the ordinance seeks to enshrine as the norm.

    We will, unfortunately, have lots of time to pick though the bones of this proposal in detail. For now it’s enough to raise this highest-level issue: we are still the People’s REPUBLIC of Berkeley, not the People’s Democracy. Our city charter enables an indirect form of representative government: we elect councilmembers and appoint commissioners and then empower them to act on our behalf, with a conscious willingness to delegate our trust for a term of office. It’s that process that we should be empowering with more sunshine — making our council and commissions more effective, more efficient, and ALSO more transparent — rather than submerging due consideration in a sea of pseudo “direct democracy” that our city founders deliberately rejected for good and desirable reasons.

    No need to worry that this will pass. But its legacy will probably be to delay a better version of a long-needed sunshine ordinance that will add light — rather than just heat — to our public processes.

  • Bill

    As described I can see conflicts of purpose with several of the provisions and costs ballooning significantly. The lack of attny client privilege also concerns me since i want my council to get candid and often up-popular advice. Just as importantly I have a great deal of trouble with the “Enforcement Commission” and the potential costs of our “suing ourselves.” There are something to like about this but more, i think, to dislike. I look forward to hearing more about it

  • laura menard

    This article is obviously biased against the ordinance. It would be far more helpful and fair to have written a piece comparing this ordinance with other California city’s ordinances in operation or at least provide context for why this provisions have merit.

    For instance, the 11pm meeting close. Mayor Bates himself pushed for this during his first campaign, not to mention all the council members routinely complain about doing important business late in the evening. Community members waiting to speak on an agenda item usually give up and go home after waiting for 4-5 hours especially when a controversial item was purposely moved to the end of the meeting.

    John, how many instances in just the last two years have council members themselves left the meeting complaining about the late hour and pushing through of a vote in a hurried manner at the end of a busy meeting? I recall a few, do you listen to the council meetings?

    I don’t know John Osborn or any of his community work nor his connection to the city’s politics, but I think Berkeleyside should request and publish an article from any of the very informed and experienced citizens who drafted this ordinance or the city council members who in support.

    Here’s a start from long time public servant Dean Metzger.

    http://www.berkeleydailyplanet.com/issue/2009-02-05/article/32155?headline=Real-Sunshine-Could-Be-in-Berkeley-s-Future

  • http://www.davosnewbies.com Lance Knobel

    To respond to some of Laura Menard’s questions. John Osborn is a young journalist who recently moved to Berkeley from Humboldt County. Up north, among other journalism, he was active in starting The Reporta, a hyperlocal site for the area. This is his first post for Berkeleyside, but we’re looking forward to many more.

  • http://francesdinkelspiel.com/ Frances Dinkelspiel

    Laura

    I don’t think this article is biased against the ordinance. John was trying to add some levity to the issue with his bullet points. Perhaps the bold titles are light-hearted (and clearly not everyone thinks they work) but the substance of the piece is serious and presents the various parts of the ordinance in a straight-forward fashion.

  • jjohannson

    Early bedtime? Is there an Ovaltine clause? It’s not like they have a city to run or anything.

  • laura menard

    Frances and Lance,

    Thanks and yes that makes sense, the bullet points read tongue in cheek, and are the reasons I objected. I probably lost my sense of humor about this issue during the struggle our neighborhood group experienced which required repeated public records requests to both the police dept and city attorney dept when we were doing the work that our city failed to do abating the long standing public nuisance activity at the notorious drug house 1610 Oregon St. I will be voting yes for an “enforceable” sunshine ordinance.

    I know many stories of citizens having an impossible time with public records request, including a neighbor who wrote this commentary on 2004, who never did succeed in his public records request, “Homebuyers’ Assistance Program is Predatory ”
    http://www.berkeleydailyplanet.com/issue/2004-02-10/full_text

  • George Berkeley

    I also noticed flaws in the composition of this piece–and I’m not even talking about the use of loaded phrases like “a slew of provisions,” “brown act on steroids,” “sweeping provisions,” and “under the rationale” in the intro paragraphs.

    After the bullet points, the “staff report” opposition is presented, in detail, in each of the final three paragraphs. No counterarguments are presented, but for a single hyperlink (“a number the committee disputes”) to a Daily Planet article that isn’t much better.

    Thus, the overall structure of the piece is: (1) intro, (2) key provisions of the proposition, and (3)opposition arguments. Correct me if I’m wrong, but I don’t think that’s what they teach in J-school.

  • George Berkeley

    Also interesting that the only source documents that are hyperlinked are the ordinance and the staff opposition. I’m reasonably certain that a written rebuttal was delivered to the council.

    If that document hasn’t been made available on the City website, of course, it would seem to beg the very questions presented by the sunshine ordinance itself….

    This has to be one of the only times I’ve seen a journalist adopt a tone that appears (again, appears) opposed to greater information disclosure by a government. Perhaps someone a little older can direct this young man to the Pentagon Papers???

  • Paul

    It’s obviously a hit piece, but a well disguised one. Note particularly how staff budget estimates are repeated without examination. The substance of the piece cannot be taken seriously given the selective criticism of some elements, simple repetition of others, and promotion of a few. The intention is clearly to put forward an opinion rather than educate or even report the news.