Editorial: Keeping Government Out of Sight

By Becky O’Malley
Friday July 06, 2007

Curiouser and curiouser, as Alice used to say in Wonderland. The belief that government is something that should take place outside the view of the governed seems to be growing by leaps and bounds, both nationally and locally. At the national level we have Vice President and Chief Operating Officer Cheney claiming that he’s got a whole new branch of government that doesn’t have to tell anyone what they’re doing, while Nominal President Bush commutes Cheney staffer Scooter Libby’s punishment for perjuring himself before the grand jury investigating Team Cheney misdeeds. And in Berkeley we have the continuing assertion that important city policy decisions can only be made by those who have no opinions on the matters before them. 

Planning Commissioner Harry Pollack sent this letter to the city attorney last week regarding the major development envisioned for the Ashby-College intersection:  


Dear Manuela, 

I write to protect the due process rights of my clients John Gordon and Janis Mitchell in connection with this matter. As I explained in our phone conversation yesterday, Councilmember Donna [sic] Spring made it very clear in her comments at Tuesday’s (June 26, 2007) Council meeting that she would not vote to affirm ZAB. Among other revealing comments, she stated (with strong emotion in her voice) that “the truth is that this project stinks to high heaven.” 

The statement expressing her strong negative opinion about the project was made in the context of the Council’s consideration of whether to set for public hearing an appeal of ZAB’s decision. However, at this point in the process, Council members are supposed to be open-minded so that if the matter is set for hearing, they can fairly listen to and consider all the relevant information. 

This statement, as well as Ms. Spring’s other remarks, make plain that my clients would be deprived of a fair hearing if she participates further in the appeal process. Continued participation by Councilmember Spring in this matter would violate my clients’ due process rights. Accordingly, I insist that Ms. Spring be recused from further proceedings regarding this matter. 

This request is made in the context of the recusal of Councilmember Gordon Wozniak. Mr. Wozniak was recused some weeks ago, apparently as a result of a statement that he made on the Kitchen Democracy website. 

The same standard must be applied to both members of the Council. Applying that standard equally, it is indisputable that Ms. Spring must also be recused. Her passionate opposition to the project, as stated in public during a City Council meeting in her role as a City Council member, makes it clear that she has made up her mind prior to any public hearing. 


Now, it’s true that in this instance Commissioner Pollack was writing in his private capacity as attorney for developer John Gordon. The question of whether as a Planning Commissioner he weighs in most often for policies to benefit the developers who are his frequent clients or for policies which benefit the District 8 residents who elected his appointing councilmember Gordon Wozniak is not up for discussion here, though it’s an interesting one. The case at hand was whether or not City Attorney Manuela Albuquerque would again adopt the novel legal theory that a decision-maker who has expressed an opinion in a land use case can be barred from voting on it. 

Boalt Hall land use professor Antonio Rossmann commented on her use of this doctrine once before in these pages: “ ...a leading California Supreme Court decision (City of Fairfield v. Superior Court) directly addressed this situation, and concluded that political accountability of a city council to its electorate outweighed the developer’s interest in avoiding allegedly “biased” decision makers...The city attorney has consistently attempted to distinguish Fairfield on technical grounds, failing to honor the spirit of the Court’s instruction, and ignoring another leading case (Andrews v. ALRB) where the Court suggested that a council of ‘rare intellectual eunuchs’ would be adversely qualified to decide the cases before them.” 

Pollack originally persuaded Albuquerque to employ this bizarre argument when he was president of Temple Beth El, many of whose neighbors opposed its major building project on a historic site in North Berkeley. He succeeded in getting her to bar three landmarks preservation commissioners, myself included, from voting on the project on the tenuous grounds of their participation in the Berkeley Architectual Heritage Association, even though they hadn’t expressed any opinion about the project per se. The excludees filed suit to contest her action, but the case dragged on so long they finally dropped it after the City Council approved the project on schedule. Now Pollack’s trying the same ploy again. 

We asked Professor Rossmann for his opinion on the current controversy over who can vote, but he was on his way out of town over the holiday and didn’t have time to comment at length for the Planet. He did point out in an email that there is a doctrine known as the rule of necessity which excuses a conflict when the member’s vote is necessary to reach a quorum. He suggested that councilmembers should be forced to vote “at least on whether to grant a hearing, which can be distinguished, if the City Attorney insists, from voting on the merits.” 

Councilmembers Wozniak and Capitelli have already cheerfully acquiesced to recusing themselves, probably grateful that they won’t have to answer to their constituents for their vote on a very controversial project. But Councilmember Spring is no coward, and one might reliably guess that she’d want to insist that her voice be heard on this one. If Albuquerque had tried to disqualify her, some sort of legal action either from Spring or from project opponents could have been anticipated. Fortunately for the city budget, at press time it looked like cooler heads were prevailing in the city attorney’s office. 

A more interesting question for the future of representative democracy in Berkeley is how the remaining three councilmembers can continue to justify blocking a public hearing on a very controversial ZAB decision. Bates, Olds and Moore seem to have no credible excuse of any kind for their votes to duck the hearing. If they don’t know enough about the project to be excluded from voting on it as per the Pollack Doctrine, how could they know enough to decide that they don’t need to hear any more about it? If you are one of the long-suffering minority of voters who can still bear to watch our city council mired in the usual inaction, it might be entertaining to watch on Tuesday to see how they wriggle out of their duty to hold a public hearing one more time.