Threatened by citizens considering a lawsuit to force state-mandated public participation in city meetings, Mayor Tom Bates has been experimenting since the fall with a variety of rules aimed at increasing opportunities for public comment at council meetings.
Now the mayor says he wants to make the rules permanent and has proposed a set of guidelines for public participation that appear on tonight’s agenda for council approval.
Counclmembers Kriss Worth-ington and Dona Spring, however, say Bates’ draft resolution gives the mayor/presiding officer too much latitude to decide who speaks, when, and for how long. “It shouldn’t be someone with so much vested interest” making these decisions, Spring told the Daily Planet.
Worthington wrote his own resolution, which he submitted last month but delayed at Bates’ request, to allow the competing resolutions to go before the council at the same meeting.
Spring has made some suggestions for rules on public comment, but is calling for a fall workshop to fully discuss citizen participation in meetings.
Bates’ proposal “gives him dictatorial power over public comment.” Spring said. “The public needs to know what the rules are ahead of time.”
One question the council will be asked to resolve is how long speakers can talk.
Under the old rules, before SuperBOLD (Berkeleyans Or-ganizing for Library Defense) threatened to sue the city for limiting a citizen’s right to comment at public meetings, 10 speakers were chosen by lottery to speak for three minutes each at the beginning of the meeting.
SuperBOLD and attorneys from the Oakland-based First Amendment Project said the system unfairly restricts public participation.
However, “It doesn’t make sense to have 100 people speak for three minutes each,” Worthington said.
His proposal gives the public two minutes to speak, when there are five or fewer people who want to address a particular issue, and one-and-a-half minutes when there are six-to-nine people and one minute when there are ten or more people who want to speak to one item—this would apply to both the consent and action calendars.
Bates’ proposal addresses the time issue differently for “consent” items and “action” items.
With respect to items on the consent calendar—generally non-controversial issues approved as a block—Bates is proposing to allow one speaker in favor of each agenda item and one speaker opposed to the item. Each would speak for two minutes; others present in support or opposing the item would be asked to stand to indicate support or opposition.
If the mayor determines there is “significant opposition” or if numerous people want to speak in support of the item, it would be pulled off the consent calendar and placed on the “action” calendar at the end of the agenda.
Spring has proposed that when fewer than 19 people want to speak on one item, there should be a two-minute time limit, but when more than 18 want to speak, a one-minute limit should be imposed. Alternatively, Spring suggested imposing a 12-minute time limit on public comment before each item.
Bates proposes that the public would be allowed to speak for two minutes on items calendared for action, but if more than 10 people wish to speak “the presiding officer may limit the public comment to one minute per speaker.”
Alternatively, Bates says that, with the consent of people representing both sides of an issue, he would “allocate a block of time to each side to present their issue.”
But Worthington says this is an example of the mayor giving himself too much discretionary power. People need to come to meetings knowing how much time they can speak on an issue, he said.
Gene Bernardi of SuperBOLD said in an interview Monday that while it would be fine with her if people had more time to speak, the compromise time limits suggested by Worthington are acceptable to SuperBOLD.
While Bernardi said it might be appropriate for the mayor to suggest that only one person speak for and one against a non-controversial consent item, he should not impose that on the public. There may be more than two clearly identifiable sides to an issue, making it difficult for one person to speak on each side of a consent calendar item, she said.
If people come to the council to talk about concerns not noted on the agenda, Worthington says they should be permitted to talk directly after the consent calendar has been approved, which is early in the evening.
Bates, on the other hand, says public comment on non-agenda items should come at the end of the agenda.
“If by 11 p.m. an extension [of the council meeting] is not approved, any unfinished agendized business will be moved to the next council meeting and fifteen minutes will be automatically allocated for pubic comment on non-agenda items,” Bates’ item says.
Bates did not return calls for comment.
Enforcing the rules
Neither of the proposed resolutions suggests remedies for violations or designates an individual or office to oversee the rules.
When asked about enforcement, Worthington said, “There should be a clearly designated parliamentarian who does the job.” In many cities, the city attorney plays that role, he said, adding that it often falls to him to speak up when rules are broken, which, he said, is not a good way to handle such questions.
“When a councilmember brings up [problems with following the rules], it adds to the emotions in a discussion,” he said.
Worthington noted that a substitute city attorney had effectively played the role of parliamentarian when City Attorney Manuela Albuquerque was on vacation a few weeks ago.
Many cities include public comment rules in their Sunshine Ordinances, laws that mandate greater government transparency than state laws. Albuquerque told the council she would post a draft Sunshine Ordinance on the city website in May, but has yet to do so.