News Analysis: Searching for Sunshine in Berkeley

By Judith Scherr
Tuesday March 27, 2007

There’s a contradiction often built into the job of public official—one I’ve observed over some 15 years reporting on various local governments in the Bay Area. 

Elected officials—often dedicated folks without nefarious motives—may sprint straight ahead with a passion to move a project forward. But in their rush to get the job done, the official may trample on the citizens’ right to know what government is doing and their right to give input into the process. 

Last Tuesday, the City Council met in a 5 p.m. workshop with a group of “sunshine” advocates and experts to look at how Berkeley’s government can become more transparent than California’s open meeting and public records laws require. San Francisco, Oakland, Benicia, Riverside, Milpitas, and Contra Costa County have adopted “sunshine” laws. 

Panelists included Terry Francke, an attorney from Californians Aware who has advised cities on sunshine laws; Mark Schlosberg, police practices policy director with the Northern California American Civil Liberties Union, a Berkeley resident and former member of its Police Review Commission; Jinky Gardner president of the Berkeley-Emeryville-Albany League of Women Voters. I participated on the panel as the representative of the Freedom of Information Committee of the Society of Professional Journalists, Northern California chapter. 

Panelists underscored the significant progress Berkeley has shown by having made a host of documents available on its website. Ironically, the draft sunshine law presented at Tuesday’s meeting and its earlier 23 iterations had not previously been accessible to the public. It can now be found on the city’s website by going to the March 20 special work session City Council agenda. Links to the draft are also on the Daily Planet website, along with a model San Jose ordinance—not yet adopted—and the San Francisco Sunshine Ordinance.  

During discussion of the draft document, Councilmember Darryl Moore said city staff should have involved the council. “I’ve not been part of the discussion nor any of us here on the dais,” he said, noting the council first asked staff to begin work on a sunshine ordinance in 2001. “That bothers me and disturbs me greatly; it shouldn’t take six long years,” he said. 

On April 24, the council will discuss an expanded process for adopting a Berkeley sunshine law that would include input from both open government experts and the public. 

The panel, the council and 10 or so members of the public who commented at the workshop agreed the draft ordinance needs more work. Councilmember Kriss Worthington engaged in debate with the city attorney about whether all the issues raised in 2001 had been addressed in the draft, such as creating a time certain for public hearings, writing clear council and commission agendas, and how settlement agreements discussed in closed session were to be made public before council approval. 

A key concern of panelists and some members of the community was that the draft places the city manager in the position of responding to complaints about violations of the ordinance.  

While some said a commission should be set up to oversee the ordinance—with the League’s Gardner commenting that she never thought she’d advocate for one more commission—City Manager Phil Kamlarz said that such a commission would have no teeth unless the measure was put before the voters as a charter amendment, which was done in Oakland and San Francisco. 

“Those whose actions are in question cannot be deciding what is or is not public knowledge,” said Berkeley resident Peter Sussman, also a member of the Society of Professional Journalists Freedom of Information Committee. 

But Mayor Tom Bates disagreed, saying: “If you have a commission that’s only advisory, it seems like a waste of time.” 

Gardner elaborated: “When I say an advisory commission, I think you would listen. If none of the boards and commissions has final authority and you override them all, why do we have any of them?” 

While the draft ordinance says a member of the public can take an alleged violation of the ordinance to court, Schlosberg noted that the ordinance does not provide for a successful complainant’s attorney’s fees to be paid by the city if it loses, as they are in other cities. 

Schlosberg also addressed the city’s guidelines for release of police records. A problem he noted is that they include no provision for releasing records showing the type and frequency of the use of force.  

“Getting that kind of aggregate information allows us to look at whether there’s a pattern of a certain type of force being used in ways that may not be in conformance with the way the community would want such things to be used,” Schlosberg said, adding that another omission in the guidelines was that dispatch tapes should be released to show whether calls are handled properly.  

The Oakland League of Women Voters played a critical role in writing Oakland’s sunshine ordinance and Gardner promised the assistance of the League in the Berkeley process, particularly in bringing citizens together to give their input and, after the law is drafted, to write a handbook making the laws easily understandable to the citizens.  

“After all, the public is probably the biggest stakeholder,” Gardner said. 




Model Sunshine ordinance from SJ Mercury News: 




San Francisco Sunshine Ordinance 




Draft 24 - Berkeley Sunshine Ordinance