Public Comment

Mayor Bates, at the April 14 meeting of the City Council Agenda Committee, declared that the City Council would proceed with an April 22, 2008 Public hearing on the Draft Sunshine Ordinance left behind by the city’s former city attorney. This, despite the City Council’s receipt of a letter (from the very prestigious panelists that the City Council itself had invited to participate in a March 2007 Sunshine Ordinance Workshop) requesting that the public hearing be postponed in order that a Sunshine Ordinance draft in process by a citizens’ group could also be subject to public review and consideration. This citizens’ group was initiated by, and participated in by, the very panelists whom the mayor and councilmembers had encouraged to do just that. 

Mayor Bates’ declaration was supported by Councilmember Maio who said they need to forge ahead with a Public hearing because Judith Scherr, the panelist representing the Society of Professional Journalists, was “jamming” the City Council to produce a Sunshine Ordinance. Had not the councilmembers read the letter signed by Judith Scherr; Terry Francke, Cal Aware; Jinky Gardner, League of Women Voters and Mark Schlosberg, ACLU, requesting postponement of the public hearing? Why did no other councilmembers speak up? Why no motion or vote? The Agenda Committee is a standing committee which has a “continuing jurisdiction over a particular subject matter”: establishing a council’s agenda, and therefore is subject to the Brown Act regardless of whether or not a quorum is present. 

The ex-city attorney’s Sunshine Ordinance would sunset open government in Berkeley. It is riddled with loopholes and written like a set of moral commandments (i.e. the City Council should…) or gracious offerings to the public if the City Council feels so inclined. (i.e. the City Council may…) rather than with legal language that has clout (i.e. the City Council shall without exception…). 

A frequent critical problem is the unavailability of many of the agenda supporting documents, prior to meetings, in the viewing binder and on the website which have in place of documents an otherwise blank page stating “To Be Delivered.” The city attorney’s draft “Sunshine Ordinance” perpetuates this practice as follows: “Council agendas shall contain the recommendations made in the related agenda reports, unless the report is to be delivered after the agenda has been prepared and the precise recommendation is not know at the time the agenda is published and posted.” 

As for public comment the city attorney’s draft has a mere two paragraphs and states “Public comment shall be maximized on agendas…and shall to the maximum extent feasible, permit members of the public to comment on items at the time they are taken up, subject to reasonable time limits… .” The City Council recently passed, after persevering pressure by SuperBOLD (for which SuperBOLD received the Citizen Award from the Society of Professional Journalists) a five-page resolution on Public Comment Procedures. Except for relegating most comment on non-agenda items to the end or after the meeting’s end, these procedures are a huge improvement over past practices and, at the very least, should be incorporated into a Sunshine Ordinance. 

Gene Bernardi and Jane Welford are members of Berkeleyans Organized for Library Defense (SuperBOLD).