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Two statewide organizations that advocate for a transparent political process are split over whether a request for Berkeley city councilmembers to vote on budgetary priorities in private violates state law. 

Councilmember Kriss Worthington raised concerns to both the California First Amendment Coalition (CFAC), based in San Rafael, and Californians Aware, based in Sacramento, that the city manager’s request that councilmembers “vote” by fax on city budget priorities violated the Brown Act. 

The law requires that all legislative votes be done in public and that the residents are given notice of the scheduled vote. 

“If the council wants the confidence of the people of Berkeley, they should not be voting in secret,” said Worthington, who argued that the priority setting amounted to a legislative action by the council. 

Priority setting is one of the most important actions undertaken by the council, said Worthington, because it sets the framework for the upcoming budget.  

The priority list serves as a general directive to department heads as they start to plan their budgets, said Deputy City Manager Lisa Caronna. 

The council is not always asked to set priorities before the budget cycle. Worthington said the city manager’s office last made a similar request several years ago when he and Councilmember Maudelle Shirek refused to comply because they believed it was illegal. 

Siding with Worthington is Peter Scheer, executive director of the California First Amendment Coalition. Scheer said he thought voting on priorities amounted to legislative action, even though it might be “a close call” under the Brown Act. He recommended the City Council set priorities at a properly noticed public meeting where the public has a chance to participate via public comment. 

Although Scheer said his group might not have the resources to pursue a complaint, he added that if a court voided the process for the selection of priorities, the city’s final budget would be subject to legal challenge. 

However, Terry Francke of Californians Aware, a political watchdog group that supports open government, said that he thinks that the city manager’s request, while it shouldn’t have used the word “vote,” likely would stand up in court. 

Francke interpreted ranking budget priorities as a “preliminary ranking that would make real deliberation possible.” 

If the city ranked the options at a public meeting, Francke said it could take hours to complete the process. 

“It doesn’t seem like a terribly good use of everyone’s time,” he said.  

To be legal under the Brown Act, Francke said the city would have to publish the rankings from each council member, which City Attorney Manuela Albuquerque said the city planned to do. 

“It’s a completely open public process and no action will take place except at the council meeting,” she said. Albuquerque said the vote to set priorities was not a violation of the open meeting law. 

Although the directions to council members said the rankings would be tallied and presented at Tuesday’s City Council meeting, Caronna said the tally has been postponed until next week to give staff time to receive and process the rankings. In retrospect Caronna said she wished she had used a word other than “vote” in the directive to council members. “There probably was a better way to phrase it,” she said. 

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