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City’s Verizon Settlement Proves a Minor Embarrassment

By J. Douglas Allen-Taylor
Wednesday November 26, 2008 - 10:31:00 AM

While the City of Berkeley-Verizon Wireless “secret settlement agreement” is hardly likely to reach the notoriety of the infamous City of Berkeley-UC Berkeley “secret deal” of 2006, confusion over the Verizon settlement—if, in fact, it is actually a legal settlement—appears to be causing some momentary embarrassment among Berkeley City officials. 

The Verizon settlement agreement came to general public attention during a Nov. 18 City Council meeting in which the council considered hearing an appeal of a Zoning Adjustment Board (ZAB) approval of a ten antenna cell phone facility at 1540 Shattuck Ave. 

The council eventually voted to hold a hearing on the appeal. 

In the background section of the staff report on the issue, Planning and Development Director Daniel Marks wrote, “On August 8, 2007, Verizon filed a lawsuit challenging the city’s processing of applications for three wireless telecommunications, including (1540 Shattuck). As a part of a stipulation to stay and potentially dismiss this litigation, the City of Berkeley and Verizon agreed that the City would act on the Verizon application at 1540 Shattuck Avenue within eight (8) months of Verizon paying the remaining deposit fees for the noise and engineering analysis. The settlement does not dictate how the City must act, but requires final action (including all appeals), and provides that if the City does not act by the deadline, it would be considered an unreasonable delay under the Telecommunications Act. Verizon paid the required deposits on May 8, 2008, so the deadline for final City action is January 8, 2009.” 

Acting City Attorney Zach Cowan told councilmembers at the Nov. 18 meeting that the proposed agreement was brought to council in a special Monday evening closed session on May 12. A review last week of the online agenda for that closed meeting shows that discussion of the Verizon-City of Berkeley lawsuit was one of two items agendized. 

A review of the online videotape of the public portion of that meeting shows that while three Councilmembers were not in attendance—Laurie Capitelli, Betty Olds, and Kriss Worthington—a quorum was present. 

A copy of the Stipulation Regarding Stay Of Action in the Verizon-Berkeley case was included in a packet of information submitted by city staff to the Planning Commission for the Nov. 5 meeting in which the commission was considering amendments to the city’s Wireless Telecommunication Facilities Ordinance. The text of that stay of action, which was signed by attorneys for Verizon and the City of Berkeley on May 20 and placed into order by the U.S. District Court of Northern California the following day, agrees with the background information submitted to the Nov. 18 council meeting by Marks. 

To this point, the agreement and subsequent ZAB and City Council actions all seemed fairly straightforward. 

But during the Nov. 18 meeting, Worthington complained that city officials had never seen any minutes from the May 12 closed City Council meeting, which presumably would have included any report on ratification of the settlement agreement that showed up eight days later in the Stipulation Regarding Stay Of Action in federal court in the case. Worthington requested copies of the minutes of the meeting including a the resulting vote on the settlement agreement, adding that failure to report out such results was a violation of California’s open government Brown Act. 

In response, Cowan told Worthington that the minutes of the May 12 meeting were online on the city’s website, and that they “indicate that you [Worthington] were not at that meeting.” Cowan added that because “there was no reportable action at that meeting with respect to this case … there’s nothing in the publicly available minutes about it.” 

When Worthington protested that the city routinely reports out the ratification of settlement agreements from closed sessions, Cowan said that “settlement agreements are only reportable if that’s the last action to be taken. That was not the case here.”  

He would not elaborate, only telling Worthington that “had you been at the closed council session, you’d understand what I was talking about.” 

The Brown Act allows a public body to withhold information on closed door ratification of a settlement if the opposing party has not yet signed off on the settlement. It may have been the case here that Verizon had not yet signed off on the settlement as of the May 12 closed Council meeting. However, Cowan did not explain to councilmembers why the Verizon-City of Berkeley settlement was not formally and publicly disclosed to the City Council until the Nov. 18 meeting, six months after both Verizon and attorneys representing the City of Berkeley formally entered into the settlement. 

But here the issue becomes a little more confusing, as city officials have been massaging the public record of the May 12 meeting over the last two weeks. 

In a telephone interview this week, Worthington said that after he saw the background material for the Nov. 18 meeting, both he and his two council staff members checked the city website for the results of the May 12 closed council meeting. There was a second council meeting held on May 12, a special open meeting on the Helios EIR certification held following the closed session meeting. Worthington said that when he checked on the minutes for the closed session meeting prior to Nov. 18, those minutes were a copy of the following open meeting, and not of the closed session. 

Following the Nov. 18 council meeting, a Daily Planet reporter working on a story for that meeting accessed the May 12 online closed session minutes. At that point, the reporter noted that the online minutes were identical to the posted agenda, listing only the items to be discussed in the closed session, but not the result. 

This week, in preparation for this story, the reporter called the Berkeley City Clerk’s office to obtain minutes from the May 12 closed session council meeting. When told the May 12 date, an unidentified office worker answering the telephone at the clerk’s office said “there’s something about that date that’s familiar. I think they [the online minutes] are being worked on now.” 

A half hour later, a review of the online minutes on the City of Berkeley website for the May 12 closed session meeting showed that they now state “no reportable action taken” in the “Action” section following the discussion on the Verizon-City of Berkeley litigation. The minutes, however, mistakenly list all of the Councilmembers as present at that closed session, although the accompanying online video shows three councilmembers absent. And to date, city officials have never formally reported out council approval of the agreement, including the actual listing of the Councilmember votes. 

In the end, the confusion over public release the Verizon-City of Berkeley settlement agreement will probably cause little stir, largely because the agreement did not require City Council to take a specific action—yes or no—on the Verizon cell phone tower application, only to take such action within an eight-month period. 

With a hearing on the Verizon application for 1540 Shattuck Ave. scheduled for next month, and a Council decision mandatory for the night of that hearing, the council and the city will be in compliance with that agreement. Still, the incident has proven to be an embarrassment to city officials, at least for the time being.