Tonight (April 20) the City Council has the chance to moderate Berkeley’s extreme rule prohibiting any communication between citizens and council members on land-use permitting matters, and bring Berkeley into line with practices that generally prevail throughout California. For many years the council has operated under its self-imposed rule that categorically forbids councilmembers “to discuss with any member of the public the facts of any [land use application] which may probably be the subject of public hearings by the City Council.”
Not surprisingly, the city’s task force on land-use permitting made revision of this rule its highest-priority recommendation. Both development and preservation interests have been frustrated by this rule’s draconian impact on democratic decision making. The council can responsibly and lawfully respond to this frustration by allowing members to discuss pending applications informally with members of the public (homeowners and developers alike), so long as the contents of those discussions are disclosed in the public record before the council hears the matter.
Berkeley’s present rule stems from the city attorney’s meritorious interests in securing fairness in City Council deliberations, and minimizing the city’s risk of litigation from losers in the land-use process. These are important interests, but like all interests, they are not absolute. Perceptions of “fairness” and a litigation-risk-free environment are in the California Supreme Court’s view trumped by the interests of the citizenry to enjoy access to their elected officials, to hold those officials accountable to the voters, and to ensure that the council makes the most well-informed decisions possible.
The city attorney’s memorandum that the council will consider this evening focuses substantially on “fairness” in adjudicatory proceedings, but does not honor the paramount interests in civic accountability and high-quality decisions. The existing rule is based on an obsession for procedural purity in a setting far removed from the judicial or administrative arena where fundamental vested rights are at stake. Proceedings to which the rule apply are labeled “quasi-adjudicatory,” without asking the hard question of just how “quasi” the typical Berkeley land-use adjudication should be.
In the true judicial proceeding (conducted either by judges or an administrative hearing body) we insist that the decision be based on formal rules of evidence, that the decision-maker consider only the evidence presented openly where it can be cross-examined, and divorced from political values and accountability. Judges and lawyers are bound by codes of conduct developed to ensure that when one party engages the state to claim property or prerogative from another, or when the government itself proceeds against an individual’s freedom or livelihood, the decision-maker remain focused on the competing cases of the two parties and not be swayed by the sentiments of the larger public. One reason the legal process seems so expensive is the training and experience required of lawyers to present their cases within the stringent formalities and requirements of the judicial process.
Land-use decisions at City Hall do not—and should not—constitute “true judicial proceedings.” Viewed from the perspective of the legal profession, virtually all the participants are lay persons—most importantly, the decision makers themselves. The decisions to be made call in part for an exercise of political judgment; the views of the larger public are not only not irrelevant, they are indispensable to democratic decision-making and accountability. The city’s existing ex parte rule must be evaluated in this context.
Any doubt about the wisdom of Berkeley’s absolute prohibition of communications between the public and council members outside the council’s public hearing dissolved in the last City Council election. During the council campaign, an extraordinarily controversial application was pending before the City of Berkeley. Members of the public appropriately asked incumbent council members and their challengers where they stood on this issue: Should the council treat a well-respected religious institution like any other developer required to mitigate harm, or should the institution’s important role in the community justify more flexible application of environmental standards?
Incredibly, City Council candidates were advised not to answer those questions during the campaign, because the council’s ex parte rule prohibited that discussion. Even though a leading California Supreme Court decision (City of Fairfield v. Superior Court) directly addressed this situation, and concluded that political accountability of a city council to its electorate outweighed the developer’s interest in avoiding allegedly “biased” decision makers, here in Berkeley the ex parte rule deprived voters of knowing where their candidates stood on this vital public issue. (The city attorney has consistently attempted to distinguish Fairfield on technical grounds, failing to honor the spirit of the Court’s instruction, and ignoring another leading case (Andrews v. ALRB) where the Court suggested that a council of “rare intellectual eunuchs” would be adversely qualified to decide the cases before them.)
Against the compelling case for enabling council members to be heard by and accountable to their constituents, the ex parte rule asserts a strong interest in precluding council members from relying on evidence that opponents do not know of to rebut. These interests can be harmonized, however, rather than discarding the compelling interest in favor of the strong one. Berkeley should finally adopt the general practice of most California agencies and cities that do not prohibit communications outside the council chamber, but require written disclosure of those communications and any evidence received, in time for all interested parties to learn of and rebut them.
Councilmembers who desire to avoid such communications are not required to have them; but those who find them helpful to fulfill their duties will have the choice. And moderation of the unqualified ex parte rule would actually reduce the city’s litigation risk, by removing claims based on its violation and requiring challengers instead to prove actual harm or bias in City Council proceedings.
Antonio Rossmann has practiced land use law for more than 30 years, and has taught that subject at Boalt Hall since 1990.