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Council deals with commissioner conflict

By John Geluardi Daily Planet staff
Friday May 18, 2001

The City Council adopted an ordinance Tuesday that spells out exactly when some city commissioners have a conflict of interest due to outside employment and how to remedy the situation. 

The new section of the Berkeley Municipal Code states that all commissioners who are employed by any governmental entity, which includes UC Berkeley’s 20,000 employees and 3,000 employees at the Lawrence Berkeley National Laboratory, will have to recuse themselves only on agenda items that directly affect their specific job responsibilities.  

A state law covers commission and board incompatibility issues as they relate to private employers but does not include government employees.  

The council approved the ordinance by a 5-4 vote with Vice Mayor Maudelle Shirek and Councilmembers Dona Spring, Kriss Worthington and Margaret Breland voting in opposition.  

Spring made a substitute motion to create a broader ordinance that would require all government employees who serve on city commissions to abstain from voting on items that would affect their employers. That motion failed by a similar 5-4 vote. 

While Spring’s motion would have impacted a wider range of commissioners, those affected would have had to abstain only from voting on issues related to their employers. That means they could still offer their opinions and participate in discussions on related issues.  

Under the adopted ordinance, commissioners who may have a conflict of interest will have to recuse themselves from any commission discussion whatsoever. 

The ordinance was the result of an ongoing controversy with the Community Environmental Advisory Commission that began in January when City Attorney Manuela Albuquerque issued an opinion that CEAC Commissioner Gordon Wozniak’s employment was incompatible with his duties on the commission. 

Wozniak is a senior scientist at LBNL.  

Wozniak disagreed with Albuquerque and refused to disqualify himself or recuse or abstain from any commission action related to his employer. And the city had no legal recourse to remove him from the commission. 

At the time the CEAC was embroiled in a controversy over possible radioactive tritium leaks from LBNL. Tritium opponents were outraged that Wozniak, who does not work directly with the LBNL tritium facility, ignored Albuquerque’s opinion and the commission became deeply divided. The conflict resulted in the sudden adjournment of two CEAC meetings after several frustrated commissioners left the meetings. 

Under the new ordinance, Wozniak would not have to recuse himself on any tritium-related items before the CEAC commission. 

Councilmember Polly Armstrong, who appointed Wozniak, said the new ordinance was a good one. “This will allow employees of two huge employers of brilliant people (UC Berkeley and LBNL) to participate on city commissions and I think it just makes sense,” she said. 

Spring, on the other hand, said it’s just a way to allow the university and the laboratory to have influence over city policy. “Under this ordinance you could have five LBNL employees on the CEAC and they would not have to recuse themselves if they work in a different department of the same division,” she said. “They could all answer to the same boss, which is just going to erode public confidence because you would have the fox guarding the hen house.” 

Wozniak said he is happy with the council’s action and that he looks forward to continued work with the commission. “I think the ordinance is fair and will avoid the appearance of conflict of interest,” he said. “I hope we can handle the issues on our agenda in a timely manner without any further disruptions over this issue.” 

The new ordinance excludes the seven (out of 45) city commissions that award permits or recommend contracts – the Homeless Commission, Housing Advisory Commission, Human Welfare and Community Action Commission, Landmarks Preservation Commission, Planning Commission, Police Review Commission and the Zoning Adjustments Board. Members of these commissions who work directly or indirectly for the government, including UC Berkeley, would have to recuse themselves from participating on all issues related to their employers, whether the issue was directly related to their specific work or not.