Public Comment

Commentary: Berkeley’s Public Comment Struggle

By Jim Fisher, Gene Bernardi and Jane Welford
Friday September 07, 2007

For over two years, SuperBOLD and the First Amendment Project have been working towards a more democratic public comment procedure in Berkeley. In April 2006 the First Amendment Project threatened a lawsuit if the city did not discontinue the use of a lottery for choosing speakers at public meetings. The lottery denied some persons willing to speak the right to do so. It also resulted in some agenda items not being addressed by the public. 

In reaction to the threatened lawsuit, the City Council abandoned the lottery for choosing speakers and soon thereafter stopped requiring speaker cards. So far, so good. However, the mayor has continued “experimenting” with the public comment procedure for almost a year now. In fact, the latest brochure, Guidelines for Public Comment and Council Meeting Order, Revised June 2007 states: “The City Council is currently experimenting with its public comment procedures.” 

Presently, public comment is called for on consent calendar items before the council votes to approve them. Public comment is then intended to take place before or during council discussion of each action item, but sometimes the mayor has neglected to call for it. The mayor has moved public comment on non-agenda items, which used to follow comment on consent items, to the end of the agenda. As a result, he has on many occasions failed to call for comment on non-agenda items—clearly a violation of the Brown Act. 

Whether called upon or not, it is a great disservice to those persons raising issues of concern not on the agenda to be compelled to wait several hours to speak. Berkeley lags behind surrounding East Bay cities: Richmond, El Cerrito, Oakland, Walnut Creek and Livermore. All have an open forum for non-agenda items at the beginning of their meeting. Only two limit the comment time allotted for non-agenda items, but reconvene open forum at the end of the meeting. 

In the interest of bringing an end to the mayor’s experimentation with public comment, and to avoid litigation, Councilmember Worthington placed a recommendation, endorsed by SuperBOLD, on the council’s June 19 agenda. It was postponed to June 26 and again postponed so it could appear on the July 17 agenda with Mayor Bates’ competing proposal. 

Despite Council Rules of Procedure, which call for Old Business to precede New Business, Bates placed the “Recommendations on Public Comment” last on the July 17 agenda. Shortly after 10:45 p.m., Mayor Bates declared there was not time to discuss the public comment agenda items, and that he was postponing the items from the agenda until the Sept. 11 council meeting. He then informed those who had come to comment on the public comment recommendations, that the items were now non-agenda items. Therefore, they could address them at 11 p.m.—the public comment period for non-agenda items! 

Councilmember Worthington’s recommendation, in accord with the intent of the Brown Act, allows all persons who wish to speak the right to do so. The compromise is: the mayor is allowed to reduce the amount of time allowed each speaker when there are five or more persons wishing to speak on an agenda item. Worthington places public comment on non-agenda items, early in the meeting, after comment on consent items. 

Mayor Bates’ latest recommendation allows only three speakers in support of a consent calendar item, while the remaining supporters will be asked merely to stand. If there are more than three people in opposition to a consent item the Presiding Officer will move the item to the end of the Action Calendar.  

On action items, if there are more than nine persons desiring to speak, the presiding officer may limit the public comment for “remaining” speakers to one minute per speaker. The question here is, who was “not remaining” and how much time did they get to speak? This reeks of inequity. Further, Bates’ proposal keeps public comment on non-agenda items as the very last item on the agenda.  

Support the right of every member of the public who so desires, to speak. Lobby your councilmember to support Worthington’s recommendation. If the councilmembers want shorter meetings, they can meet weekly, rather than twice per month as they are scheduled for the rest of this year. 

The City Council will hold, in council Chambers, Old City Hall, on Tuesday, Sept. 11, a 5:30 p.m. work session on amendments to Council Rules of Procedure. This will be continued at the City Council’s meeting scheduled for 7 p.m. the same day.  

Please attend these meetings and speak in favor of Councilmember Worthington’s recommendation on public comment. 


Jim Fisher, Gene Bernardi and Jane Welford serve on the steering committee for Berkeleyans Organized for Library Defense (SuperBOLD).