Editorials

We’d like to thank our good friends at the Bay Guardian (where several of us here cut our journalistic teeth) for their persistent advocacy for sunshine in government. In case their lively publication isn’t on your usual reading list (it should be) here’s what they have to say about what’s going on in Berkeley: 

At long last the city of Berkeley is talking seriously about adopting a sunshine ordinance. That’s the good news, and it’s overdue: Councilmember Kriss Worthington asked City Attorney Manuela Albuquerque to start working on this six years ago.  

The bad news is that Albuquerque has drafted a law that’s full of holes.  

The biggest problem with the proposed ordinance is its lack of effective enforcement. Although the law sets (some) standards for open records and open meetings, any complaints about secrecy would go to the city manager. That won’t work: if we’ve learned one thing in covering politics for more than 40 years, it’s that city officials can’t police themselves on sunshine issues. What happens if the city manager is the biggest offender? What happens if the city manager doesn’t want to take on the mayor or the council members? What if the city manager winds up protecting city employees (who may be violating the ordinance with impunity)?  

The ordinance needs a few other things - for example, mandatory time for public comment at City Council meetings ought to be written into the law instead of being left as a council rule that can change any time. There ought to be clear language stating that all requests for information are to be treated as public records requests, even if they aren’t in writing and didn’t come through the City Manager’s Office.  

But if this ordinance is going to make any difference, it needs real enforcement—and that means having an outside, independent panel or commission that can handle complaints. In San Francisco, the Sunshine Ordinance Task Force does that job - and the city still lacks decent enforcement. If Berkeley wants to adopt a real landmark ordinance, it should follow what Connecticut has done and create an open records commission with the authority to order city departments, agencies, and officials to release documents and open up meetings.  

Worthington is a strong supporter of an independent enforcement body and has been struggling to get Mayor Tom Bates and Albuquerque to go along.  

At this point, Worthington and the sunshine advocates would be better off letting Terry Franke of Californians Aware and Mark Schlosberg of the American Civil Liberties Union—both of whom have offered their time and expertise—simply write another draft. It should include a new sunshine commission, with teeth. Worthington says that might require a charter amendment and thus a vote of the people, and he’s prepared to push the entire package onto the ballot if necessary.  

That threat alone ought to get Bates and Albuquerque in line—and if it doesn’t, the voters of Berkeley should have the final say. 

We couldn’t agree more. It has indeed been six years since then Daily Planet Editor Judith Scherr, former Chronicle editor and Society of Professional Journalism (SPJ) activist Peter Sussman and Councilmember Kriss Worthington started the ball rolling, and it’s gone exactly nowhere. Things have actually gotten worse. Former City Clerk Sherry Kelly was a great believer in sunshine, and on her own put many technological reforms in place in her office which have greatly helped citizens find out what government is up to. On her way out the door she worked on a draft of a model sunshine ordinance with citizen advice, but her draft has disappeared. It was replaced, after a lot of hemming and hawing, by the dreadful Albuquerque draft which the Guardian skewers so well.  

And while our city government has been fiddling around, Rome is burning. When we in Berkeley started thinking about a sunshine ordinance, San Francisco and Oakland were well on the way with theirs, as was Contra Costa County and even San Jose. Six years ago the Contra Costa Times was a big proponent of open government, as was the San Jose Mercury News, then owned by Knight-Ridder. The Mercury even drafted its own model sunshine ordinance for San Jose. But since then almost all the papers in the Bay Area, in a doughnut-shaped mass ringing San Francisco and Berkeley, have been swallowed up by Dean Singleton’s Media News, a right-wing corporation which seems to have little interest in open government. 

So there aren’t many of us left to complain. And in the meantime governments, Berkeley’s included, continue doing their best to conduct business with no scrutiny from the voting and taxpaying public. A few recent instances here: 

• The secret settlement of the city’s lawsuit against UC on terms which turn out to be very bad for Berkeley. Some citizens are challenging it in court after the fact, but if we’d had a sunshine ordinance they might have had a chance to complain before the damage was done. 

• The scheme for creating a massive development on the parking lot of the Ashby BART station, with a grant proposal already written before citizens knew anything about it. Planet reporter Richard Brenneman documented most of the action with the aid of citizen sources, so it’s been slowed down a bit.  

• The mayor’s attempt to transfer a couple of hundred thousand dollars in city funds to the amorphous Sustainable Berkeley conglomeration, with the assignment of writing its own plan for implementing Measure G and then selling it to the citizens. Little details like the process for choosing the director and how much he was to be paid were being kept quiet. Thanks to the eagle eye of Planet reporter Judith Scherr, that deal seems to be off, so the work will now go on in the public eye, where it belongs. 

But all of these are part of a worrisome trend on the part of the current local administration to turn public functions over to non-governmental organizations which can operate behind the scenes with no chance for input from the taxpayers who are expected to supply the funding. In these three cases, much of the truth eventually came to light, if too late, but there’s probably much more going on that the public will never find out about.  

So we agree with the Guardian that it’s time for the press and the citizens to draft their own sunshine ordinance for Berkeley, one with not only teeth but backbone this time. The City of Berkeley has had its chance, and it’s dropped the ball.  

Tuesday’s City Council meeting was particularly embarrassing. The city manager announced apologetically that his staff hasn’t even been able to come up with a plan for working on fixing the unsatisfactory draft—the first step in a process that was supposed to have started last October. It’s been postponed again, until May 8, but enough is enough. 

We Berkeleyans should just get to work on our own ordinance. The Mercury News’ model ordinance can still be found on the Internet—that would be one way to get started. There are several organizations that would be a big help: Californians Aware, the California First Amendment Coalition, the First Amendment Project, the American Civil Liberties Union, the SPJ …it’s a substantial list. When we have a good ordinance ready, we can offer the do-nothing council one last chance to adopt it, but if they can’t get moving we should just put it on the ballot, as citizens did in San Franscisco. Getting the voters to pass it shouldn’t be hard.