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Group’s Draft of Sunshine Law Comes to Light

By Riya Bhattacharjee
Thursday September 11, 2008 - 09:40:00 AM

It was cloudy in Berkeley Tuesday, so a small but dedicated group of people got together at the Lutheran Church of the Christ on University Avenue to make their own sunshine. 

This citizen’s group—comprised of political advocates, lawyers, commissioners, a former Berkeley mayor and other Berkeley residents—met for the first time to unveil their own draft crafted as an alternative to the Berkeley city attorney’s draft sunshine ordinance, both of which promise more open government in the city. 

When the Berkeley City Council in April postponed the public hearing on the city attorney’s draft ordinance and granted the citizens a 90-day extension to complete their work, they spent the better part of the summer researching sunshine ordinances in San Francisco, San Jose and Oakland and exchanging hundreds of e-mails with community members—both political insiders and outsiders—who signed up through a public process. 

City officials have been working on a local sunshine ordinance since 2001, when at the request of Councilmember Kriss Worthington, the City Council asked the city manager’s office to look into improving the city’s sunshine policies, including the adoption of an ordinance. 

“Back in 1901...” began councilmember Worthington, drawing laughs from the audience and he quickly changed the year to 2001. “When I first introduced the sunshine ordinance I thought we would have half a dozen meetings and it would be very easy to get it done. Almost eight years later it still hasn’t happened. I think what I like about the draft so far is it has most of the things I proposed back then. But it has to be done as an initiative to make it really powerful.” 

The group spent two hours answering questions, explaining the ordinance and announced toward the end that it would submit a stronger draft to the City Council by October. 

Earlier this week Mayor Tom Bates postponed a sunshine ordinance workshop scheduled for Oct. 7, saying that the event had been originally scheduled with the understanding that the group would turn in a draft to city officials by July. 

He said the workshop would be rescheduled once the group submitted a formal draft to city staff, who would require a minimum of 60 days to review it. 

The general consensus at Tuesday’s meeting was that many people in Berkeley were still unaware of the importance of the sunshine ordinance. 

“If you ask any random person in Berkeley, they will tell you that the city is the epitome of democracy and that they can comment at 3,000 meetings every year,” said Worthington. “But if you ask a random person who has attended a meeting, most can tell you problems they have experienced or witnessed.” 

Several people complained about city officials’ lack of response to Public Records Act requests. 

“I attempted to get materials from the city but it was very frustrating,” said Steve Wollmer, a Berkeley resident. “Materials are hidden and often not disclosed until the input period has passed.” 

Carl Friberg, one of the lead plaintiffs in the Long Range Development Plan lawsuit between the city and UC Berkeley, emphasized the importance of a sunshine ordinance. 

“This whole lawsuit would not be in existence had there been a sunshine ordinance,” he said. “I would urge you to take this seriously and get your neighbors involved. This is a dollars and cents issue. I get bills over $100,000 showing what we owe our attorneys. That’s how important this is.” 

Terry Francke of Californians Aware, who has worked on several sunshine ordinances since 1990, starting with the first one in San Francisco, lauded the group on its work. 

“This process in Berkeley, after more than a dozen cities have followed San Francisco to have their own sunshine ordinance, is fascinating to me because it has involved the number of people it has involved and has yet to reach any level of involvement with city officials,” he said. 

Francke warned that when city governments wanted to avoid sunshine they labeled it as being too costly. 

“Look at what you are asking for here,” he said. “All those extra hours and extra work by staff. The government is not going to say too much sunshine is dangerous, but they are going to say do you realize how much this costs?” 

He added that the citizens’ draft should include the caveat that city staff was not allowed to lobby or privately brief a majority of the City Council to propose, oppose or otherwise discuss any recommendation pending or to be submitted to it, an issue he said had been recognized by then-city attorney Manuela Albuquerque who originally wrote the city’s draft. 

Worthington recommended that the ordinance include a parliamentarian who would attend City Council meetings and decide whether a person’s rights have been violated. 

“If they don’t let you talk, if they don’t give you a report, then you can’t go to the mayor because he is in the middle of a meeting,” Worthington said. “But you can go to that person.” 

Dean Metzger, a spokesperson for the informal citizens’ group, pointed out that they had included a similar provision for enforcing sunshine laws in the draft. 

“There will be a sunshine commission of nine people—elected by each councilmember and the mayor—who will hear your complaints,” he said. “One of the things we toyed with is how to pay for the commission, so we decided to use the city attorney’s budget.” 

The ordinance, Metzger said, would codify the City Council agenda and would push for shorter agendas so that the public process is “real and true.” 

“The public comment period is often limited to a certain direction,” he said. “For example, neighbors get three minutes to talk, but the project applicant often gets more. Our draft ordinance will allow equal time. Also how do you get public records? This is an attempt that the city understands that everything they do is public and that if they can’t make it public then they shouldn’t do it. Of course we respect client-attorney privileges and the privacy of juvenile delinquents, but everything else is public record.”