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While Berkeley may have been known as the free speech capital of the world, the city now lags behind seven other jurisdictions that operate under “sunshine” laws that expand California’s open government statutes. 

On Tuesday, the Berkeley City Council will take its first collective look at a draft sunshine ordinance authored by the Berkeley city attorney. Sunshine laws expand the public’s access to government, open avenues for citizen input into the public process and broaden an individual’s right to obtain government documents. 

In addition to the city attorney’s draft, the council will consider additional suggestions from City Councilmember Kriss Worthington, and from SuperBOLD, Super Berkeleyans Organizing for Library Defense, the group that has threatened to sue the city over its limited public comment access at public meetings.  

“We’re putting (the ordinance) out to the public, so they have a chance to comment,” says Mayor Tom Bates, who is bringing the item to council with Worthington, although the pair differs on a number of specifics.  

Both Bates and Worthington say the council should schedule a public hearing on the ordinance. 

Public comment 

SuperBOLD has been lobbying the council for months—and has retained the Oakland-based First Amendment Project’s legal services—to create a comment period in which the public is permitted to express itself on all matters that come before the City Council, as do some 30 other California cities.  

For more than a decade, the city clerk chose by lottery 10 people who wanted to address the council; each was permitted to speak for three minutes. Since the lawsuit has been threatened, Bates has revised the system, asking the city clerk to choose 15 speakers, each of whom speaks for two minutes, after which others whose issues have not been addressed are allowed to speak, one pro and one con for each issue. 

Gene Bernardi of SuperBOLD says Bates’ plan is inadequate and that every person who wishes to speak should be allowed to do so.  

There are more than two sides of every issue, she argued, recalling an individual who was at a Berkeley City Council meeting, hoping to support permits for the West Berkeley Bowl store, but only if the store agreed to a unionized workforce. People spoke for and against issuing permits for the store, but no one addressed the union issue.  

“Everything is not A or non-A,” Bernardi says. 

Worthington has further suggested that when it is expected that many people will want to address the council on a particular issue, a public hearing on the issue should be called. 

Bates says changes in public comment procedures should come about as modifications of council rules, but Worthington argues the council can too easily waive or change its rules. “If it’s an ordinance, it’s not subject to whims,” Worthington said. 

Settlement agreements 

Settling lawsuits behind closed doors has been a subject of controversy in Berkeley, particularly with respect to the July 2005 UC-City of Berkeley settlement agreement. The city attorney’s recommendation is that proposed settlements be placed on the council’s regular open agenda for approval. 

“All agreements would be made public prior to adoption,” Bates says, supporting the language in the draft ordinance. 

A prototype sunshine ordinance, authored by the San Jose Mercury News and the League of Women Voters, currently under consideration by San Jose, goes further, prohibiting the city from signing settlement agreements that demand secrecy. 

Resolving disputes 

The city attorney’s draft ordinance provides for disputes to be settled by the city manager. If they are not, people can go to court in some cases. Worthington, however, contends that suing the city should be an option in all cases. 

San Francisco and Oakland have commissions that resolve disputes and monitor the effectiveness of their sunshine ordinances. Arguing for this option, Anthony Sanchez, a First Amendment Coalition intern who worked on suggested additions to the ordinance, said the city manager option “puts way too much discretion in the manager’s hands.” 

A commission, on the other hand, would scrutinize the usefulness of the ordinance and recommend changes, he said. 

Bates said another possibility would be taking questions not resolved by the city manager to the Fair Campaign Practices Commission.  

Among other additions Worthington espouses are: 

• Moving the council meetings to a larger venue with better access to disabled persons. 

• Telling the public a time certain when a public hearing will begin. 

• Making law enforcement records and logs accessible to the public and press.