Features

Berkeley Sunshine Ordinance ---- Draft, September 2008 

viewable at www.berkeleydailyplanet.com 

“Power Through Information” 

The Process 

For many years, Berkeley citizens and City Council members have encouraged the City to develop and adopt a sunshine ordinance. Local sunshine ordinances strengthen the provisions of the state’s Brown Act and Public Records Act, to further protect public participation in democracy. A draft ordinance was drawn up by former City Attorney Manuela Albuquerque, but was deemed unsatisfactory by many. So concerned Berkeley citizens, with widespread public support, volunteered their help. 

An informal sunshine ordinance working group of about ten people, with regular input from dozens of interested Berkeleyans, and the support of thousands, has produced a draft Sunshine Ordinance, now in the process of review by citizens and the Council. The working group includes members with widely diverse views, including both political “insiders” and “outsiders.” Among them are neighborhood leaders, political advocates, lawyers, members of the League of Women Voters, experienced commissioners, former City staff, and a former Berkeley mayor. Advisors include public interest lawyer Terry Francke from Californians Aware (www.calaware.org), and experienced participants in sunshine and ethics activities of cities like San Francisco, Oakland, and San Jose. 

Major Challenges and Solutions 

Information is power, and the purpose of any sunshine ordinance is to maximize the flow of information in the democracy—downward, from government to citizens, by minimizing secrecy; and upward, from citizens to decision makers, by maximizing public input. The challenge is to accomplish these goals in a way that is fair to all participants and does not obstruct legitimate government business. We have attempted to maintain this critical balance between democratic participation and governmental flexibility. In addition, we feel it is important to encourage political participation by maintaining courtesy in public processes. Clear, fair rules, with means of redress, help to do this. 

Lack of enforcement is the Achilles’ Heel of all sunshine ordinances. One goal of a sunshine commission is to head off lawsuits by raising awareness, integrating sunshine into public processes, and gradually changing the culture of government, but no commission can overrule a municipal government that violates an ordinance. In the end, sunshine ordinances must be enforceable in court, or they mean nothing. 

Therefore, the sunshine ordinance must be specific enough that violations are legally clear, which necessarily occurs at the cost of brevity and some flexibility. In addition, the ordinance must address the fact that the burden of taking legal action is a barrier to enforcement. This ordinance facilitates enforcement by placing the burden of judicial redress upon the Commission and the City. However, the essence of the ordinance is to be proactive and to help citizens and government work together more constructively. 

Sunshine Highlights 

Meetings 

∑ Assures that meetings take place when and where people are most able to attend. 

∑ Keeps decision making in the open, and gives the public the right to know how their representatives voted in closed sessions. 

∑ Requires enough City Council meetings so that meetings adjourn around 11:00 PM. 

∑ Provides an orderly, predictable, and efficient structure for Council meetings, while accommodating public participation protected by the Brown Act. 

∑ Ensures adequate time for decision makers to hear from the public and study relevant information before voting on an issue. 

∑ Permits the public to place items on the agendas of the City Council and commissions with 25 signatures. 

∑ Provides fair but flexible public comment opportunities at all meetings, while generally allowing City commissions to decide their own procedures. 

∑ Informs citizens about the significant activities of their representatives on regional agencies. 

∑ Creates a Community Engagement Process that assures public input on projects of citywide impact, such as budgets, area plans, and City-University relations. 

Access to Information 

∑ Designates staff and organizes records to assist with public information requests. 

∑ Guarantees timely access to public information, and minimizes delays and costs of obtaining copies of important documents. 

∑ Prohibits arbitrary withholding and redaction of City documents requested by the public. 

Implementation 

∑ Establishes an independent, appointed Sunshine Review Commission, with protections against influence by the City Council, City officials, and others. 

∑ Authorizes the Commission to work proactively with staff and decision makers to improve public processes, noticing, and access to information. 

∑ Requires timely rulings by the Commission on alleged sunshine violations, and provides penalties for violations in accord with existing Berkeley and state law. 

∑ Provides a legal budget for the Commission to bring enforcement actions, and minimizes financial risk for individuals seeking to address violations.