Just outside the City Council chamber in the Maudelle Shirek Building (formerly Old City Hall) stands a large table. When the council is meeting, that’s where you can find copies of its agenda. Last Tuesday evening, you could find something else there as well: copies of a two-sided sheet entitled “City of Berkeley/Welcome to Your Council Meeting.”
Dated June 6 and signed by the city attorney and the city clerk, “Welcome” details the council’s latest experiment in procedures for public comment other than at a public hearing. Some of its features are far more welcoming than others. But as the June 19 council meeting all too amply demonstrated, no procedure, however hospitable, can compensate for the offensiveness of a peremptory chair.
A little background: The era of procedural experimentation began last year after the library watchdog group, Berkelyans Organizing for Library Defense (SuperBOLD), threatened to sue the city for violating California’s sunshine ordinance, the Brown Act. Specifically, SuperBOLD objected to the city’s long-time practice of limiting public comment to three minutes apiece for 10 people whose names had been drawn out of a hopper at the start of each council meeting. That, said the group, conflicted with the Brown Act’s guarantees for public testimony.
In response, the council started trying out different formats for oral communications. Now members of the public can address items on the consent calendar (items that are scheduled to be approved without discussion, unless they are “pulled” to the action agenda by a councilmember), which is always high up on the agenda; items on the action agenda, which takes up the bulk of a meeting; and, at the end of the meeting, matters not listed on the agenda.
These new arrangements are an improvement, as SuperBOLD member Gene Bernardi noted in a letter to the June 15 Daily Planet. But as Bernardi also noted, big problems remain, almost all stemming from the arbitrary authority of the mayor, who chairs the council’s meetings.
Some of that arbitrary mayoral authority is written into the new rules. “Welcome to Your Council Meeting” stipulates that “[t]he mayor retains the authority to limit the total public comment time allocated to an item or to persons representing a particular side of an issue” on the action calendar. Bernardi observed that “allowing the mayor to select who will speak for or against an item is more egregious than selecting speakers at random by lottery, and therefore certainly as illegal.” In the interest of fairness, speakers need to be chosen according to a fixed formula that precludes discretion.
But setting formal limits on paper won’t eliminate mayoral arbitrariness, because Tom Bates plays fast and loose with council procedures even when he has no authority to do so. So, for example, at the end of council meetings, Bernardi noted, the mayor “has failed to call, without reminder” for comment on items that have been pulled from the consent calendar. On June 19, he not only failed to call for such comments; he resisted doing so and instead tried to adjourn the meeting. He allowed the meeting to continue only after a handful of would-be speakers, including myself, protested that they had waited four hours—until nearly 11 p.m.—to address the council. After we each got to say our two minutes, the mayor failed to ask for public comment on non-agenda items and ended the meeting, ignoring two other individuals, who, in accordance with procedures outlined in “Welcome,” had waited until the very end of the meeting to speak on such items.
But when it came to high-handedness, Tom Bates’ late-night efforts to squelch public comment paled next to his disposition of the controversial Wright’s Garage project earlier in the evening. The council was considering whether to grant requests from the Elmwood Neighborhood Association and the Elmwood Merchants Association to schedule a public hearing on the project. About 30 neighbors and merchants showed up; 14 of them were allowed to speak for up to two minutes apiece.
It takes five votes to schedule a public hearing. With two councilmembers recused (Capitelli, who owns a business in the area, and Wozniak, who had publicly lobbied for the project), and one absent (Moore, who was tending to his sick mother), the council deadlocked 4-2 in favor of Councilmember Maio’s motion to schedule a public hearing. When the council deadlocks over an appeal of a Zoning Adjustments Board decision, the matter is customarily continued for 30 days from the date the item first appeared on a council agenda. If by then the council has not mustered the five votes required to take action, the ZAB decision holds.
With this precedent in mind and still hoping to find five votes, the Elmwood appellants were counting on the matter to be continued to the council’s June 26 meeting. Thanks to Councilmember Worthington’s spirited defense of due process, the item was continued. But first the public was treated to a flagrant show of mayoral arrogance, as Tom Bates tried to get the item permanently removed from the council’s agenda. Astonishingly, he declared that since he had allowed 14 speakers to address the council, there was no difference between the evening’s proceedings and a public hearing.
If the appellants end up suing the city, I hope they include the mayor’s assertion in the material they provide to the court. For that statement exemplifies Tom Bates’ attitude toward law and governance: I make the rules around here, and if I say this is as good as a public hearing, it’s so. Never mind that a real public hearing has legal standing that regular public comment lacks. Never mind that on June 19 neither the project applicant, John Gordon, nor his lawyer, Harry Pollack, was there to present their side of the case, as they surely would do in a hearing. None of this matters to Berkeley’s mayor. L’état, c’est lui.
He brings to mind Animal Farm’s Napoleon, the barnyard despot who lords it over the other creatures and keeps unilaterally changing the rules. Like Orwell’s beastly autocrat, Mayor Bates doesn’t act alone. His imperious ways are expedited and legitimated by a compliant council majority, a fawning city attorney and other unctuous bureaucratic managers who do little to conceal their own disdain for public process. (On June 19 Planning Director Dan Marks didn’t bother to bring a copy of the staff report on the Wright’s Garage project into the council chamber and was consequently unable to answer councilmembers’ questions about conditions attached to the use permit).
What ultimately doomed the denizens of Animal Farm, however, was their own gullibility, exacerbated by the fact that most of them couldn’t read. Their Berkeley counterparts can’t plead illiteracy. I assume that everyone in town believes in a government of laws, not persons, and deplores the Bush administration’s blatant disregard of that principle. How, then, to explain the greater Berkeley public’s seeming indifference to the blatant disregard of that principle in city hall?
The text of “Welcome to your Council Meeting” can be found on the council’s website under the heading “General Information” and the subheading “Public Comment.”
Zelda Bronstein is former member of the Planning Commission as well as a former candidate for mayor.