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Citizens Ask Council to Uphold Open-Meeting Laws

By Judith Scherr
Friday July 27, 2007

The state’s Brown Act and the Public Records Act aim to maximize the ability of citizens to participate in community affairs. 

But in a July 24 complaint filed with the mayor’s office, the watchdog group SuperBOLD (Berkeleyans Organizing for Library Defense) said the City Council violated the Brown Act and its own rules in three separate instances: allowing a presentation on drought issues that was not placed on the agenda; not making information on items discussed by the council adequately available to the public; and placing on the agenda an old item of business under a “new” business rubric. 

In a written response, City Clerk Pamyla Means said the complaints are invalid.  

At issue in the first complaint was a presentation at the July 17 City Council meeting by East Bay Municipal Utility District Director Andy Katz, accompanied by EBMUD Manager of Water Conservation Richard W. Harris. The 20-minute presentation, followed by five minutes of council questions, did not appear on the agenda and there was no time allotted for the public to comment on the issue. 

Mayor Tom Bates invited Katz to speak under the agenda rubric “ceremonial items,” a time generally reserved for occasions such as celebrating a Berkeley citizen’s 100th birthday or honoring a local hero. 

“Water conservation is an important issue,” Gene Bernardi of SuperBOLD told the Daily Planet on Thursday. The item should have been noted on the agenda to give the public notice that the issue would be aired, she said. Further, Bernardi argued, the public should have been allowed to address the item publicly.  

“This sets a precedent that you can permit things at City Council meetings that are not on the agenda,” Bernardi said. 

The Brown Act section cited by SuperBOLD says that each item to be discussed by a public agency should be clearly noted on the agenda and the council rules cited by SuperBOLD say: “Any request for a presentation to the Council will be submitted as an agenda item and follow the timelines for submittal of agenda reports.” 

Addressing council rules, City Clerk Means wrote: the council rules “define an agenda item as an item placed on the agenda for a vote of the council,” and therefore, since no vote was required, the non-agendaed presentation was proper. 

Further, Means wrote: “It is customary that public officials from other public agencies that are present at a given council meeting are invited to address the council at the onset of the meeting as a courtesy.” 

In a Thursday morning interview, Means said she was personally unable to name public officials who had been accorded this courtesy, but had been told that it was true.  

In a Thursday interview, Counclmember Kriss Worthington said he recalled that when former State Sen. Tom Hayden was present in the council audience, it was only by vote of the council that he was permitted to speak. Moreover, he said, other councilmembers are asked to go through a complex agenda-committee process to bring formal presentations to the council. 

Worthington said the drought issue should have been on the agenda. “We need to know how much money we’re wasting” on ill-advised water use. he said. 

A second SuperBOLD complaint concerned the inability of the public to get materials distributed to councilmembers. The complaint says a public speaker at the July 17 council meeting had referred to a “communication #2” and when a SuperBOLD member asked a city clerk assistant to see a copy of it, she “was told this communication was available on-line.”  

The complaint quoted the Brown Act saying “…writings, when distributed to all, or a majority of all of the members of a legislative body…are disclosable public records under the California Public Record Act…and shall be made available on request without delay.”  

Worthington noted that in the past such materials were made accessible to the public and press, but access to them has been problematic more recently. He said he often goes into the back room and makes copies for the public himself. 

Means said she puts a copy of the materials in the public binder and places a copy on the table outside the Council Chambers “for public viewing.” However, she noted in her written response, “On occasion, items that are set out for public viewing at the meeting are taken by persons at the meeting and not returned.”  

“There’s a difference between taking responsibility and making excuses,” Worthington said. 

SuperBOLD’s third complaint was about an item that had been removed from an earlier meeting agenda and placed on the July 17 agenda. SuperBOLD said, according to council rules, that it should have been considered old rather than new business, but Means said placement on the agenda is up to the Agenda Committee.  

The agenda committee meets mid-day on various Mondays when the council is in session. It is scheduled as a full council meeting, although only the mayor and two councilmembers are voting participants. Calling it a council meeting permits the participation of a council majority. Agenda committee meetings are not recorded.