Legal Threat, Ignorance Cloud City Council Liaison Law

By Richard Brenneman
Friday February 01, 2008

Of 20 commissions listed in Title 3 of the Berkeley city code, stipulations that declare the “City Council shall appoint one of its members to act as a liaison representative to the commission” are found in the statutes creating only three commissions: Aging, Planning and Zero Waste. 

The only other mention of a council liaison is in the statute establishing the Parks and Recreation Commission, which declares both the council and the Berkeley Unified School District Board “may” appoint their own liaisons. 

In Planning Commission meetings covered by a Daily Planet over the past five years, attendance by any councilmember has been rare, and when it has occurred, it hasn’t been as a delegated representative of the city’s elected governing body. 

Typically, the council’s directives have been expressed by the city’s professional planning staff, and on significant occasions by Planning and Development Director Dan Marks. 

Christopher Lien, an attorney who lives in Berkeley and is active in the LeConte Neighborhood Association, raised the issue of the absent councilmember at the Planning Commission last week. 

Asked where the missing councilmember was, commissioners—and city staff—responded with blank stares. Similar responses came from city officials contacted a week later. 

But it’s there, in Section 3.28.040 of the code, “Council liaison representative—Functions.” 

The councilmember delegated to the commission is assigned: 

• “To attend the meetings of said commission;  

• “To advise the council of the background. attitudes and reasons behind decisions and recommendations of said commissions; and 

• “On request of any member of said commission to advise the commission of policies, procedures and decisions of the council that may bear on matters under discussion by the commission.” 

Acting City Attorney Zach Cowan said he didn’t ever recalling knowing of any council liaisons to the commissions, but their absence wouldn’t have any bearing on the legality of actions of either body. 

“It sounds like (the provision) is for the benefit of the council, not the commission,” Cowan said. “But there’s nothing that says the council can’t do without” a liaison. 

“I guess it’s a polite invitation,” he said. 

But Lien said the issue is deeper, and much more serious. 

The provisions, he said, aren’t for the council’s benefit but for the benefit of the citizenry. 

They are ordinances, and the city charter requires the city manager to enforce all ordinances in the municipal code, Lien said. 

The southside attorney said he was disturbed by the fact that the ordinance has been on the books throughout all the years Mayor Tom Bates has served on the council, yet neither the council, planning commissioners nor city staff seemed to be aware of the ordinances. 

Lien said Sharon Hudson has already emailed the council a demand that members follow the law and appoint the liaison to the Planning Commission. 

For Lien, the presence of the liaison is critical when commissions are dealing with matters of lasting consequence like the Downtown Area Plan and its potential for significantly increasing the city’s density. 

Should the council not appoint a liaison and the city manager not insist on an appointment, the next step would be in court, and a petition for a writ of mandate to enforce compliance. 

But Councilmember Kriss Worthington—who admits he wasn’t aware of the statute—said compliance could prove a mixed blessing for Lien and other neighborhood activists. 

“If the City Council were to vote on a liaison, I don’t know what one person would actually reflect the balance of opinion on so many complicated issues,” he said, given that members “come down all over the place on different issues.” 

City Planning and Development Director Dan Marks said he too wasn’t aware of the ordinance. 

“It’s news to me,” Marks said. “There may be such a person, but I’m not aware of it. Clearly, it’s not something that’s been actively used since I’ve been with the city.” 

The city’s top planning official said he’d be checking with City Manager Phil Kamlarz to find out what the statute might mean. 

Kamlarz was away from his desk when called Thursday afternoon.