To the Editor:
On Aug. 13 Manuela Albuquerque, Berkeley's city attorney issued an opinion on ex parte contacts and campaigning. The opinion attempts to explain the interaction of the council rule against ex parte contacts with the rule that candidates for public office are allowed to speak freely on issues of public interest. She suggests various options for resolving the tension between them. Unfortunately, her opinion is so poorly researched and written that it has caused some people to question what they may say at a public election forum, and thereby violates their First Amendment rights. Also, her opinion may have caused, or enabled some candidates not to disclose their position on fundamental political issues in the upcoming election.
In her opinion, the city attorney cites City of Fairfield vs. Superior Court as showing that a community has a right to discuss issues of community concern – including development projects currently in process and then goes on to try to limit this. But the California Supreme Court actually went much further and stated that a council member has an “obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance” (City of Fairfield v. Superior Court  14 Cal.3d 768, 780). Given this stronger position, the city attorney's argument is pathetic. If they have an obligation, we certainly have a right.
Albuquerque’s opinion also fails to mention the state attorney general's opinion 94-1003. The conclusion here is that “A city council member who signed a petition opposing a land use project is not disqualified from participation in the council proceeding during which the application for a conditional use permit for the project is considered.” One would think that if one could sign a petition opposing a project without violating due process, that one could simply listen to people and even state their current opinion.
The City Council's rule on ex parte contact is founded on a confused idea of what it is to take evidence in a quasi-judicial matter. The rule serves the interests of “out of scale” developers by limiting the public’s access to their representative. It provides a shield for spineless candidates and councilmembers to hide behind and to pro-big-box-development candidates and councilmembers to hide their bias from the electorate. In a city known throughout the world as the birthplace of the free speech movement, it is ironic that the ex parte contact rule still exists – and that Albuquerque is still our city attorney.