Opinionator

How much is democracy worth in Berkeley?

By Dean Metzger and Josh Wolf

Dean Metzger and Josh Wolf both sit on the Berkeley Sunshine Committee.

How much is democracy worth in Berkeley? Around the world thousands are losing their lives for liberty, but on Tuesday the City Council is poised to bet that $2 million is enough to convince voters to turn their backs on open government.

Agenda Item No. 38 on the May 15 calendar will certify the Berkeley Sunshine Ordinance. In the process, the Council plans to put the following summary on the ballot for an initiative that would ensure that more government records are available to the people, meetings are properly agendized and open to the public, and that the City should be held accountable when it violates this ordinance and existing state open government laws:

Read the City of Berkeley Initiative Petition on the Sunshine Ordinance.

Shall an ordinance be adopted: enacting new agenda and meetings requirements for the City Council, the Rent Stabilization Board and all 30+ City Commissions, including limits on their ability to respond to emergencies and other time-sensitive issues; increasing disclosure requirements for public records; and creating a new commission with authority to sue the City, at an estimated combined annual cost of $2 million?

The city is required to provide an impartial summary of the ballot measure, but despite the fact that the term sunshine has been commonly used to describe such legislation for more than 50 years, the summary neither uses the word sunshine nor the term “open government.”

“I read the staff report and the ballot question,” Councilmember Jesse Arreguìn told the Berkeley Sunshine campaign in an email. “Not only does it cite the $2-million-dollar price tag, which I think is over-inflated, it presents the measure in a negative way and is written to ensure that voters will not approve it. I don’t think it’s impartial at all.”

The $2 million dollars is laughable. San Francisco, a city and county with many more government functions and seven times the population of Berkeley, has determined that its sunshine laws only cost the city $900,000 per year. This is nothing more than an effort by city bureaucrats to scare the people of Berkeley into voting against a more democratic government.

Please help ensure your neighbors are given accurate information on the ballot by signing the petition we’ve created at Berkeley Sunshine. We will deliver the petition at the May 15 council meeting. Please also consider writing your council members and speaking at public comment on this issue.

In March 2011 the city council passed the “Open Government Ordinance” hoping to convince the public that this sunshine ordinance wasn’t necessary. But nothing has changed under their “Open Government Ordinance”  because nothing in their ordinance is enforceable, and they created a commission with no authority do anything; the new commission is essentially engineered for impotence.

The proposed sunshine ordinance does not limit any of the city’s commissions and committees, or the City Council, to respond to emergencies and other time-sensitive issues. All the Sunshine Ordinance will  do is require that the city follow the “Brown Act,” that all meetings are  open and accessible to the public and that nothing new is quietly slipped into the agenda at the 11th hour.

Yes, the sunshine ordinance does give the Sunshine Commission the power to sue the city, but only if the city does not follow the law and refuses to make legally-public documents and meetings accessible to all.

If passed, the Berkeley Sunshine Ordinance will be one of the strongest in the country.

What better place than here? What better time than now? Join us at Berkeley Sunshine.org

Berkeleyside welcomes submissions of op-ed articles of 500 to 800 words. We ask that we are given first refusal to publish. Topics should be Berkeley-related and local authors are preferred. Please email submissions to us. Berkeleyside will publish op-ed pieces at its discretion.

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  • PragmaticProgressive

    Why is the Y not working?

  • The Sharkey

    What was Bruce’s comment? Did he cite a specific section within the ordinance that would prohibit the kind of shenanigans I’m talking about, or was this just more personal insults?

    Unlike some posters here I don’t pretend to be a legal authority and can
    only offer a layman’s reading of the text. If there’s anything within
    the measure that would prevent the kinds of stalling tactics that Eric
    and I are talking about I’d like to know.

  • The Sharkey

    Yes, I know, anyone who doesn’t want to keep bleeding the city for every “good cause” that comes along is an inhuman monster. If it’s not the warm pool, it’s something else. I apologize for loathing legislation like Measure C and Gov. Brown’s new tax bill that lump popular and unpopular items together into the same vote to try to blackmail voters into voting for something they don’t want in order to pass something they do. Shame on me for getting mad at politicos who play tricksy with the populace.

  • The Sharkey

    I love it! If someone makes up lawn signs, I’ll gladly put one out in front of my house.

  • PragmaticProgressive

    I have a question for Warm Pool proponents.

    Given the high stakes — pain, immobilization, death — did any of you explore private sector solutions as a hedge/alternative to public funding?  

    I have an elderly relative who goes for aquatherapy in another part of the country.  It’s a facility that was paid for by a private foundation.  It’s lovely and well cared for and the price is reasonable.  

    A quick Google search revealed private facilities in San Jose and even Brentwood.  No idea what their economic model is, but I again, I would like to know if the Berkeley warm pool proponents made any effort to meet this need through other means.

  • The Sharkey

    Ok Bruce, I’ll bite. What sections/lines within the ordinance do you think would prevent the kind of shenanigans that I’m talking about?

    Unlike certain posters I don’t pretend to be a legal authority and can only offer a layman’s reading of the text. If there’s anything within the measure that would prevent the kinds of stalling tactics that Eric and I are talking about I’d like to know.

    Can you back up what you’re saying with facts, or are you just making more pronouncements you can’t back up?

  • Bruce Love

    Ok Bruce, I’ll bite. What sections/lines within the ordinance do you
    think would prevent the kind of shenanigans that I’m talking about?

    I understand you to be talking about 1.30.160 F in the proposed ordinance:

    https://docs.google.com/file/d/0B0sHmYg78JpAajRYUkJUU2ZvWUk/edit

    The parliamentarian is obliged to receive and announce the substance of complaints during a meeting.  Complaints must be regarding specific violations of the ordinance.

    You’re alleging that this allows any random individual to fillibuster a meeting.   Not even close.  A far more common sense reading applies.    If a trouble maker or two files a frivolous complaint — it can be announced, set aside to be reviewed by the sunshine committee, and ultimately dropped.   There is no fillibuster.   If in some imaginary scenario there’s a queue of 100 people filing complaints…..  welll:  In one case they are all on roughly the same point in which case they can be received and announced en masse.   You can imagine Bates on the dais saying something like “OK, we have many, many complaints on issue X.  We’ll take these seriously.  They’ll be reviewed.”  No filibuster and the ordinance is well satisfied.    If there are 100 completely ludicrous complaints with no common substance, that no judge could accept were made in good faith but were rather apparently made precisely to disrupt a meeting, then the people filling in the bogus forms with their crayons aren’t using the sunshine law, they’re simply disrupting a public meeting and can be removed (not that this kind of abuse is likely to happen).  Again, no filibuster.

    Right now, in the current situation, if a council member feels that the council is not following the rules they can put that on the record.    I’m sure others have but Worthington is someone I’ve heard do this.   He states his objection and the meeting moves on.   He can’t hold the floor with that (and doesn’t try) but he’ll establish the record for later review.

    This part of the sunshine ordinance would let the public note alleged sunshine ordinance violations during the meeting, similarly, and not with any greater disruption than that.   One difference is in the follow-up:  the sunshine committee will later look into the matter.

    Do I think that, if this is passed, some bogus complaints will be alleged?   I certainly do.   I think that if/when that happens it’ll be a brief interruption, a complaint that goes nowhere in the end, and that if someone tries to abuse the system to block an item they’ll fail (for reasons outlined above).

    The hysteria and hyperbole some opponents are trying to stir up here is ridiculous.

  • The Sharkey

     

    In one case they are all on roughly the same point in which case they can be received and announced en masse.

    No. This is false.

    There is no clause in the proposed initiative allowing the Parliamentarian to lump objections together.

  • Bruce Love

     

    There is no clause in the proposed initiative allowing the Parliamentarian to lump objections together.

    The Parliamentarian is obliged to announce the substance of an alert.   100 concurrent alerts, all of the same substance, can be described this way:   “There are 100 alerts about X.”

    “Common sense” readings don’t cut it here in Berkeley.

    Very funny.   False.  Ignorant. But HAHA….Sharkey expresses hate towards lots of people!  HA HA!   Very witty.  I guess it’s at least reflective of the kind of BS opponents are spreading.

  • The Sharkey

    The Parliamentarian is obliged to announce the substance of an alert. 100 concurrent alerts, all of the same substance, can be described this way:   “There are 100 alerts about X.”

    Please point to the section in the ordinance where the Parliamentarian is given the power to do this. I’ve asked you repeatedly to show me what part of the ordinance you think says this, but you keep dodging the question. You also keep ignoring the potential situation where a dogged individual or group presents objections in sequence rather than concurrently despite the fact that abusing the ordinance that way has a much greater chance of disrupting a meeting.

    Saying that “common sense readings don’t cut it in Berkeley” isn’t hate speech or an insult. It’s a neutral observation. People in our fair city are very, very particular about the language of ordinances and ballot issues – you yourself are one of those people. If something in an initiative isn’t completely explicit, it’s open for litigation and abuse.

    Again, can you back up what you are saying with specific citations from the ordinance, or are you just making a bunch of unsubstantiated proclamations?

    For someone who likes to chastise others for not being civil enough for your high standards, you sure are laying on the trollish nastiness pretty thick.

  • Bruce Love

     

    Please point to the section in the ordinance where the Parliamentarian is given the power to do this.

    The short answer is that it is right there in the same passage that has now been cited a whole bunch of times. As you know.  The Parliamentarian is obliged to announce the substance of alerts received.    To announce the substance of a complaint does not mean to recite the complaint individually, apart from other similar complaints.

    Now separately you say that you have this concern:

    You also keep ignoring the potential situation where a dogged individual or group presents objections in sequence

    For such an “attack” on a council meeting to happen, either council must be conducting itself in a way that merits such a large number of complaints or — in what I think you are imagining –  the “dogged individual or group” must be persisting in making complaints of no merit at all, apparently for the purpose of disrupting the meeting.   If a long series of complaints each has merit then, of course, they should be made!   And if, as you seem to fear, a hooligan attempts to abuse the process by making a long serious of complaints with no merit at all, then they are disrupting a public meeting and can be removed.  

    In either event, you are now arguing far away from your initial claim that individuals could filibuster a meeting…. your objections keep slipping around because, well, there isn’t much valid to them.

  • Alan Tobey

    The other cheerful description of the BS Ordinance I remember from its petition-gathering phase is that its an. IED – Improvised Electoral Device – designed mainly to blow up city government.

  • The Sharkey

    The short answer is that it is right there in the same passage that has
    now been cited a whole bunch of times. As you know.  The Parliamentarian
    is obliged to announce the substance of alerts received. To announce the substance of a complaint does not mean to recite the complaint individually, apart from other similar complaints.

    Which is why I keep saying, and you keep ignoring, that it would be more likely for a filibusterer to simply submit dozens of complaints about different things, or submit complaints one at a time during the discussion on the topic. There is nothing in this ordinance that gives the Parliamentarian the right to lump like complaints together. You simply saying it’s so doesn’t make it so. The way it is written leaves it open to interpretation, and one possible interpretation would be that the “substance” if each complaint must be read individually. If the complaints are lumped, then litigation could follow because the ordinance is not sufficiently clear.

    For such an “attack” on a council meeting to happen, either council must be conducting itself in a way that merits such a large number of complaints…

    No. Since there is no punishment for frivolous complaints the complaints can all be irrelevant and have only the most specious relation to the topic at hand.

    And if, as you seem to fear, a hooligan attempts to abuse the process by making a long serious of complaints with no merit at all, then they are disrupting a public meeting and can be removed.

    Good luck with that one! The way this ordinance is written it encourages this kind of behavior. There is nothing written here to suggest that someone doing this should be considered “disruptive” and be kicked out of a meeting for doing this. Further, kicking out someone for doing this would simply create more complaints and stall things even further.

    In either event, you are now arguing far away from your initial claim that individuals could filibuster a meeting….

    Excuse me? Do you know what filibuster means? All the situations we’re talking about are ways in which the ordinance could be used to filibuster a meeting.

  • Get Real

    Seriously folks, this isn’t rocket science. All one needs to do is look at who some of the Council sponsors are (Worthington, Arreguin) and the sponsors that include Dean Metzger of the CNA. They represent the contingent of our community that would have nothing change. Let’s be generous and call them the 20%ers. In a representative democracy they are the minority vote. They want the BSO so that their 20% is worth more because they don’t mind going to meeting after meeting until midnight. They are good at being the last ones standing. These are the folks that tried to kill the Downtown Plan, or make it infeasible with legislative subterfuge. Berkeley is so far behind the leading cities of the Bay Area with regard to social equity, environmental sustainability and economic revitalization precisely because we already have TOO MUCH PROCESS. Remember that it took 7 years to get the doors open on the West Berkeley Bowl. It took 7 years to open a Trader Joe’s. Why? We needed more process that didn’t make the projects better, just more expensive. Does our 80% majority really think that a BSO is a good idea? Hell to the no. 

  • Berkeleyfarm

    Thank you, Eric, for your excellent comments.  I plan to read the whole thing through but I think I’ve seen enough to form an informed opinion

    We may need better “teeth” with the Brown Act.  If so, this should happen.  Now. 

    We may need an improved “sunshine” act.  But this is not the one.

    This can, and would be, gamed easily and used as a means of filibustering city actions.  With the “complaint cards” read on demand, it wouldn’t even have to be someone with a constituency – it could be just someone with a grudge, or someone with a pet issue. 

    I’ve been part of a group recently put through the city process ringer due to a couple of people with grudges who are very, very familiar with the current city process and used it to game/delay/stall something they couldn’t “win” on the merits.  I’m sure they would have loved some of these additional tools.  The current process in a lot of areas allows lots of opportunity for input.  

  • Lori

    Berkeley or the BUSD refuses to give us land to fund raise. One can’t raise money without a location. Since this is off topic, I’ll be brief. The Y does not work for many people including myself. The water in the “warm pool” is 3 feet, and the air is freezing. I can’t do the exercises I need to do there. Grace’s pool, which may on one day be 88, may on another day, be 86…so I swim fast to keep warm which defeats the entire purpose of being there. Then I am so exhausted I crash, when I get home. Yes, we have studied private facilities, yes, we have visited some other places. Many of those cities had the support of the city/ mayor/ and residents. 
    http://www.highbeam.com/doc/1G1-163833349.html
    http://www.caaquatictherapy.com/ 
    The Berkeley Warm Pool  can pay for itself, as most once they get started, often do. BUT that’s not the point. Thanks for your interest. And ( here is a plug ) someday you, or your child, or your grandmother, friend,etc, will NEED a warm pool…please, lets make sure the warm pool gets on the ballot and wins.
      Thanks

  • Tomales Bay

    I’m sorry but this exchange has been tainted by uncritical acceptance of the City Attorney’s supposedly “impartial analysis”.  

    Take the question of emergency meetings.  The C.A., and Sharkey, would have you believe that the Council would be prevented from acting on emergency items.  Not so: section 1.30.200 of the Sunshine proposal says that “state law governs the circumstances and procedures for noticing…emergency meetings.”  The initiative says only that these must be obeyed, nothing more.

    Or the statement that meetings “must be suspended if there are allegations of procedural irregularities”.  Section 1.30.160 (F) does give the public the right to call violations to the Council’s attention:  the Mayor as parliamentarian then simply announces the objection and makes a ruling.  Nothing is suspended; the agenda goes forward.  This is standard Robert’s Rules.

    Or the statement that the Initiative would “require more public notification of numerous types of actions”. The fact is that the City itself, under pressure from its citizens, has already agreed to give at least eleven days advance notice of non-emergency agenda items. The only difference is that the Sunshine Initiative would make the new rule enforceable.

    Enforceability is the real issue here:  for whatever reason the city (when forced to by public opinion) pays lip service to sunshine, but continually violates its own rules not to mention those of the state.

    So don’t make up your mind now:  wait for the ballot arguments on both sides;  read the actual language. And remember who the City Attorney’s client is.

  • The Sharkey

     

    Berkeley or the BUSD refuses to give us land to fund raise. One can’t raise money without a location.

    So rent out a hall to hold a fundraiser in, the way everybody else does. There are plenty of available spaces in Berkeley.

    Try the Hillside Club. It’s a nice space.

    https://sites.google.com/a/hillsideclub.org/hillsideclub/

  • Lori

    I think you missed the point, Sharkey. It’s not that we don’t have a PLACE to do the fundraising.. You are correct there are many places and ways to fund raise. But we cannot write grants without  a location to of a site to build the pool. We cannot call people up, or do a fundraising event without designated land for our pool. We have contacted grantwriters, and this was the obstacle. The city of Berkeley admitted that they have lots of land, but they refuse to designate a space for the warm pool. Doesn’t it seem odd to you that while the city builds sports fields  for the community, not a one is one that disabled kids can use. 

  • Alan_Tobey

     I agree with Sharkey here: Take it a step at a time and have a fundraiser for the CAUSE first, not (yet) for building the pool. And don’t expect much help from the city till you have a well-funded, well-organized movement with at least some non-fringe sponsors; money is the evidence of political viability.

  • Lori

    It also happens to be against our ADA rights as the late Dona Spring told the BUSD, and they knew it, which is why the pool was kept open as long as it was. But, the BUSD, and the COB is above the law it might seem. Doesn’t it seem a little strange that there is no pool anywhere in the Bay Area, that the disabled can use. Have you ever seen disabled kids in wheelchairs playing at the new baseball fields or tennis courts? Also the school district had at one time given us land and we did the EIR, went to different pools, to see what the best way to raise funds, and spent money allocated to the warm pool http://www.ci.berkeley.ca.us/news/print.asp?id=21597 
    Then the BUSD 
    decided it wanted to build a parking lot. In 5 years we could have raised most of the money. So, if you hear us whistling “Big Yellow Taxi”, you’ll understand why. 

  • Guest

    Oh, THAT’S what this does.  Thanks.   

  • Dfwaccts

     Well my question is, who gets the $$ when the city is sued under this???
    Oh, right, the lawyers, and probably the ones who are promoting this change! 
    Has there really been the kind of skullduggery that the sunshine people imply? Is it really worth anything at all to increase the burden on operating the city for this? $2 million or $900K are BOTH too much. And it wouldn’t surprise me if the litigious Berkeley lot wouldn;t take it as a CHALLENGE to cost the Berkeley more than San Franciscans cost their city