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Sun Slow to Shine on Berkeley Government By JUDITH SCHERR

Tuesday March 21, 2006

When Councilmember Laurie Capitelli introduced new elements to a draft Landmarks Preservation Ordinance at a council meeting earlier this month with no notice to the public, some community members cried foul. 

Bringing in proposals at the last minute “wo rks against the public’s right to know,” said Berkeley resident Doug Buckwald, citing Capitelli’s last-minute additions to the draft law, considered a proper amendment by the city attorney. Buckwald made his comments from the floor during a question-and-a nswer session at the League of Women Voters countywide forum on open government Friday in San Lorenzo. 

The forum, which included panelists Berkeley City Attorney Manuela Albuquerque and Berkeley City Clerk Sara Cox as well as representatives from other m unicipalities and experts on “sunshine” ordinances—local laws expanding state guarantees for access to government information and participation—comes just days after Berkeley’s draft sunshine ordinance was made public by Counclmember Kriss Worthington, wh o had sponsored a resolution approved five years ago to create such an ordinance for Berkeley. 

Known worldwide as a free speech leader, Berkeley lags behind Oakland, San Francisco, Contra Costa County, Los Angeles, Benicia and several other jurisdictions that have sunshine ordinances in place. 

However, now that a draft has been written, Worthington is fuming: “It’s worse than having no sunshine ordinance at all,” he said in an interview several days before the LWV event. The draft, prepared by Albuquerque, is a scaled-back version of a stronger ordinance written by former City Clerk Sherry Kelly, acting as a consultant, Worthington said. 

Central to Worthington’s critique is the remedies section of the draft law: those who believe the city has violated its sunshine ordinance would present their complaints to the city manager. If the manager does not validate the complaint, the citizen can appeal to the City Council, but no one can sue under the ordinance. 

“Having to appeal to the city manager is outrageous,” Worthington said, adding that without the right to sue, the ordinance has no teeth. 

Between sessions at the LWV workshop, Albuquerque defended the remedies provision in the draft law, arguing that most citizens would not file suit, as provided by the Brown Act, but might be more likely to go to the city manager for relief. She pointed out that under this plan, the manager would keep records of complaints. “If something is wrong, it will be fixed,” she said. 

Both Oakland and San Francisco sunshine ordinances empower citizens’ commissions to enforce the laws. Dan Purnell, executive director of Oakland’s Public Ethics Commission, speaking on one of the LWV’s panels, said people who believe they’ve been wronged “file a complaint with the Ethics Commi ssion and the Ethics Commission can enforce a remedy.” For example, he said, if a meeting is not properly noticed, the Ethics Commission could have the entire meeting repeated after proper noticing. 

Berkeley resident Carl Friberg queried the panel during a question and answer session about what he called “a secret agreement” between Berkeley and the University of California. He was referring to the settlement agreement between the city and the university last summer, in which attorneys on both sides ente red into a confidentiality agreement, preventing the content of the agreement from being made public until the settlement was finalized. 

Responding from the podium, Albuquerque explained that the Brown Act “allows settlement of lawsuits in closed session,” and that a suit [by Peter Mutnick] claiming violation of open meeting laws in that instance had been rejected in court. Another suit challenging the settlement, in which Friburg is a plaintiff, is still pending. 

In the earlier interview, Worthington n oted: “A good sunshine ordinance would have prevented the ‘secret’ deal having been done in secret.” Such an ordinance would mandate opening agreements to the public for comment before they are finalized, Worthington said, arguing that the draft ordinance is weak in this area. 

Other comments on perceived weaknesses in open government in Berkeley that came to the fore at the LWV forum included these: 

• Agenda item reports sometimes come to the City Council the same day (or hour) the council is asked to v ote on the item. In Oakland, such reports must be available 10 days before council meetings. 

• The city’s lottery system, in which only 10 names are selected for public comment before the meeting starts, prohibits many citizens from addressing the counci l. In Oakland, speakers have the right to address the council for two minutes before each item that the council takes up for action.  

Simply understanding the Brown Act and the Public Records Act as they are now written would be an enormous benefit to the citizens of Berkeley, Albany and Emeryville, said Luanne Rogers, a local LWV member who attended the forum and spoke to a reporter as an individual, not representing the LWV.  

Rogers said she had learned much from the panelists and would ask the local LWV to consider preparing written information for citizens to help them understand their rights. “I’m sure the citizens of Berkeley don’t understand all the aspects (of the laws),” she said. 

According to Rogers, the Berkeley, Oakland and Albany LWV have not discussed crafting or supporting local sunshine ordinances. Oakland’s Sunshine Ordinance, approved in 1997, was largely written and supported by the Oakland League of Women Voters. 

Councilmember Kriss Worthington will hold a community meeting to discuss a Berkeley sunshine ordinance, 7 p.m., March 27, fifth floor, 2180 Milvia St. . ?e