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A controversial City Council rule that Councilmember Kriss Worthington called the “largest restraint to free speech in Berkeley history” could be history itself shortly after a public hearing at tonight’s (Tuesday, April 20) City Council meeting. 

Already five members of the council—Mayor Tom Bates and Councilmembers Linda Maio, Gordon Wozniak, Dona Spring, and Worthington—have publicly supported a reform to the council’s rule on ex parte communications which forbids councilmembers from so much as overhearing conversations about pending projects that they could vote on as a quasi appeals court. A sixth councilmember, Margaret Breland, is ailing and has not been available for comment, but in 2001 she spearheaded an identical reform drive that failed to win a council majority. 

The impetus for this round of “ex parte” reform came from the Mayor’s Task Force on Permitting and Development, which last December called on the City Council to “hold a public hearing to discuss modifying [the rule] to allow for more open communication” in the permitting process. “Regardless of whether the ex parte rule is modified,” the Task Force’s final report went on to suggest, “the city should provide clear and concise information on the rule so that everyone understands how this rule is to be followed and the consequences of the failure to do so.” 

City Manager Phil Kamlarz has asked the council, following tonight’s public hearing, to provide his office with direction as to how to regulate such ex parte contacts. Under normal council procedure, the city manager’s office would draft any council recommendation into a proposed change to Berkeley’s city ordinances, which would then be voted on by the council at a later date. 

A change in the rule this time around could transform the city’s often contentious and litigious process for approving new developments. Instead of relegating the City Council to the sidelines of the debate from the time a project is submitted to the planning department up until the City Council is called on to make the ultimate call after an appeal, councilmembers would be able to talk to both developers and opponents of projects to foster compromises before the issue ever reaches the council. The content of all conversations would have to be disclosed by the councilmember before the public hearing. 

Presently, all communications from the public to councilmembers on pending developments and other issues that might be appealed to the city council must be in writing and shared with all councilmembers.  

The current prohibition on oral communications in Berkeley and several other California cities is meant to safeguard the city from lawsuits in which one party could claim that their due process rights were violated because a councilmember had access to information that might have biased his vote on a project.  

“It’s about fairness,” said Bill Connors, city attorney of Monterey. He said that the strict rules on councilmembers preserve the integrity of their vote since they are privy to the same arguments and information presented at the hearing. In addition to Monterey, Mountain View and San Diego have rules similar to Berkeley’s. 

But opponents of the rule, like Councilmember Spring, argue that it stifles free speech, fosters alienation and in cases in which the hearing involves a proposed development, stacks the deck in favor of developers. 

Developers, she said, peddle their projects to councilmembers and then quickly submit their applications so residents are effectively shut out of the project. The end result is that the city staff ends up controlling all of the information and works, “hand in glove with the developers.” 

“Ultimately you get staff driven development,” she said. 

Berkeley Planning Commissioner Dan Marks declined to comment on the issue. 

To avoid any perception of due process violations, Spring and her fellow councilmembers are kept at arms length from the public, once a developer has completed his application. 

If a constituent mentions a project to any councilmember, including the mayor, the elected official must withdraw from the conversation; if the constituent calls the office, the elected official can’t call back; if the constituent leaves a message stating an opinion on the pending project, the elected official can’t listen to it. Even e-mails are to be directed to the city clerk so they can be included in the public record and available to all councilmembers. 

While the restrictions might be a hassle for the mayor and councilmembers, for a resident opposing a development they can be outright infuriating. “It took a year out of my life,” said Sharon Hudson, president of the Benvenue Neighborhood Association, and a leader in a two-year neighborhood struggle to block a development planned on the street by the American Baptist Seminary. Since she couldn’t talk to her representatives, Hudson estimates she wrote about 200 pages on the project, 90 percent of which she guesses “was never read by anybody.” 

“If I could have spoken to them for five minutes that would equal about 10 pages worth of work,” she said. It’s a more honest way of communication. That way they can ascertain if I’m a total flake.” 

Had Hudson lived a couple of miles south, she would have done a lot more talking and a lot less writing. 

Oakland has one of the least restrictive rules in the state when it comes to allowing city councilmembers access to developers and opponents to the developments on which the council must ultimately rule. Councilmembers can talk to whomever they want and they don’t have to disclose the content of their conversations. City officials and local developers say their system has allowed Oakland to avoid the drawn out nasty land use battles endemic to Berkeley without putting the city at risk of a lawsuit. 

Oakland City Councilmember Jane Brunner said she always tries to talk to neighbors and developers when considering new projects planned in the city. “That’s how I make my decision,” she said. Last year when opponents railed against the 700-unit “Uptown” housing development for not including enough affordable units Brunner and other councilmembers brought both sides together and forged a compromise to build a separate “totally affordable structure” on the lot, settling the issue before it ever reached the full city council. 

Ali Kashani, the outgoing head of Affordable Housing Associates, praised the Oakland system. In 1996, when opposition emerged to his proposal to turn a motel into affordable housing for senior citizens, Kashani turned to then Oakland City Councilmember Nate Miley for help. 

“He had the balls to say ‘what are your issues?’” Kashani said. “He’d take sides, he’d say this is what we’re going to do.” 

In contrast, Kashani said that Berkeley city councilmembers “hide behind ex parte” to duck controversial cases. Nevertheless certain council members, he said, will violate the law to speak to developers or opponents to developments with whom they have close ties. 

“What’s frustrating for both sides is if you don’t have a relationship you’re told they can’t talk to you because of ex parte,” he said. “It stokes the level of people’s frustration and adds hostility to projects,” he said. 

A case in point might be Kashani’s Sacramento Senior Housing project that remains tied up in the courts after the City Council voted to approve the project over stiff neighborhood opposition. Marie Bowman, who has led the fight against the project, said she was denied access to city councilmembers, but didn’t think the same held true for Kashani. “He would brag that [Councilmember] Linda [Maio] would take care of him,” she said.  

Looking back on her three-year ordeal, Bowman thinks the neighbors could have negotiated for an acceptable development had they been able to communicate to city councilmembers like Oakland residents can. 

“If they had read the information and understood what our concerns were, I think a better project would have been built,” she said. 

So how can neighboring cities have such polar opposite rules on a legal issue? The answer appears to be diverging interpretations of state law and Berkeley’s litigious history when it comes to civil procedures. 

The Berkeley City Council adopted the rule in 1985 as part of a reform drive to protect the city from litigation, City Attorney Manuela Albuquerque said. That year the city faced a barrage of lawsuits, many with merit, from residents who argued that city procedures violated state law. 

“People were challenging everything we were doing. We had to figure out what we needed to do to protect ourselves,” she said. 

When it came to ex parte communications, Albuquerque recommended the council take the strictest and safest interpretation of the constitutional rights to due process, even though, she acknowledged, the law is unclear on the subject.  

“The U.S. Supreme Court has said this is a matter of flexibility, but there is no case in California that has ruled on this question.” 

Recent case law, said Albuquerque, suggests that since 2001 state courts have taken a tougher line against city procedures that violate due process. In essence for a hearing to be considered fair, all parties must be aware of all information provided to the decision-making body, so each party can respond to that information. 

In one case Nightlife Partners versus Beverly Hills, she said the appeals court judge based his decision to invalidate an administrative procedure in Beverly Hills on the state’s Administrative Procedure Act. The act applies to state agencies, not cities, but Albuquerque feared judges, lacking sufficient case law on matters dealing with cities, might now use the APA as a “gold standard.” If that were the case, anything less than a full ban on ex parte communications called for in the APA could face judicial scrutiny, she said. 

But Oakland Assistant City Attorney Mark Morodomi read the law differently. He said recent cases show that state courts recognize that councilmembers are not judges and they “need to be interacting with homeowners and neighbors.” 

Michael Asimow, a UCLA law professor with a specialty in municipal administrative law concurred. “I would be shocked to see a state court overturn a land use decision because either the opponent or applicant had ex parte contacts.” He said the Nightlife case involved the revocation of a business license, which has historically carried strict due process guidelines.  

However, he said, land use has never been interpreted to require strict standards for ex parte contacts. “What due process calls for is not a pristine type of hearing,” he added. “Councilmembers are allowed to decide cases even when developers make contributions to their campaigns. That would be a due process violation in any other type of case but land use.”