Friday May 06, 2005

Wild rumors that the City of Berkeley is about to sell its citizens down the river have been sweeping the city ever since the University of California opened the discussion of what its future plans for growth might be. We’ve had anguished voicemail messages from citizens who’ve picked up crumbs of information ever since last fall. Neither the much trumpeted City of Berkeley lawsuit challenging U.C.’s environmental impact report on its latest Long Range Development Plan nor the city’s threats that it would finally begin to collect sewer and parking fees from the university assuaged these anxieties.  

Many of the concerned citizens have vivid memories of previous occasions when city officials made a loud fuss and then sold out to the university in return for small and unenforceable concessions. Cases in point: the compromised lawsuit over U.C.’s previous and fictitious LRDP; the morphing of the California School for the Deaf and Blind into U.C.’s Clark Kerr Campus; the toothless Memorandum of Understanding which purported to deal with the immense impacts of building Haas Pavilion. Long term residents have heard these siren songs before, and now they don’t trust them. Residents of other U.C. cities share the same concerns. 

These worries have come to a head since the closed meeting of the Berkeley City Council which took place on April 25. On the agenda were the E.I.R. lawsuit and the fee cases. (The council’s craven capitulation at their last regular meeting to U.C.’s plan to build an unsafe and ugly bridge over Hearst Street did nothing to reassure anyone.) No report came out of that closed meeting, and repeated questions to councilmembers who attended have produced no answers. They’ve been told by city staff that their lips must be sealed. This is clearly hard for councilmembers who believe in open government. It’s probably even more of a trial for those who have some reason to question the deals they might be offered, judging by the evident stress in their voices when they tell the press that they’re sorry they can’t talk to us.  

Here at the Planet we still believe in that hoary old chestnut “The People’s Right to Know.” We realize that to a signicant number of government officials it’s an obsolete slogan. 

In order to figure out what we should expect to find out about deals that are going down between City Hall and University Hall, we consulted an old friend, Antonio Rossman, who teaches land use law at U.C.’s own Boalt School of Law. He kindly emailed us back a few rules of thumb based on experience from his own practice, where he’s settled a number of complex CEQA cases for public agencies. 


Planet: Should the City Council really keep their discussions with the University secret from the public? 

Rossman: Some degree of confidentiality is appropriate and even necessary for two sides to reach a proposed settlement agreement to be submitted to their respective principals, and where appropriate, constituency. 

Planet: We’ve heard that council members are not even allowed to take written copies of proposed deals away from meetings. Is that fair? 

Rossman: It is not inappropriate for counsel to distribute confidential memoranda for discussion and then ask for them back before the executive session ends. That protects everyone, including the members themselves, from accusations of impropriety if confidential material is disclosed. The confidentiality should only be broken when there is consensus for release among the council and with the other negotiating party. It seems extraordinary, and probably inappropriate, on a matter of the LRDP’s complexity, controversy, and public interest, to ask council members to vote at once on a settlement proposal not previously disclosed to them. How long did it take the attorneys and negotiators to reach their proposal? Shouldn’t the decision makers have some time to reflect on it and discern not only what is there, but what is not there? 

Planet: When can the public find out what agreement is being proposed in their name? 

Rossman: On a matter of this much public interest, and in Berkeley’s political context, I would expect the proposed settlement to be made public for comment before finality. 

Planet: What if citizens don’t think they’re going to like the deal they’re handed? 

Rossman: Remedy for those who have vital interests that are being compromised against those interests: intervene at once in the superior court to ensure that the court holds a public hearing before settlement, and possibly litigate the case themselves. 


So there you have it. If you citizens want to preserve your right to know what kind of deal the city of Berkeley is making before the deal has gone down, you have the option of intervening. Go, right now, to the judge who is hearing the lawsuit, with your own attorney. Ask for a clear ruling that the proposed outcome (which could be a settlement or the city’s withdrawal of its suit) must be disclosed to the public before it is made final. Then, if it seems like a bad deal, you can carry the lawsuit forward on your own without the participation of the City of Berkeley.  

And of course, for those of you out there who still believe in representative government and who shy away from legal remedies, you can always call your councilmember and demand that any proposed deal be made public with enough lead time for adequate public comment before the council takes its ultimate final vote in an open meeting. As we’ve said before in this space, however, don’t hold your breath.