Public Comment

The Sunshine Ordinance and the People's Republic

By Alan Tobey
Wednesday March 31, 2010 - 05:23:00 PM

Dean Metzger's March 23 commentary on the proposed Berkeley Sunshine Ordinance (BSO) provides a summary list of changes it would bring to Berkeley civics in the cause of "open government." Most of them sound indisputably attractive. But as usual the devil is in the details -- the degree and extent of the specific changes -- and what those details add up to for the way we want to manage our city. Almost all of us are for more-open government. But as my mother used to say, more of a good thing is not necessarily a better thing -- not if it goes too far. 

If its petition is qualified, there will be much to discuss about the details of what the BSO proposes – at the highest level whether it’s “just what the city needs to be more democratic” or “an attack on our cherished representative form of government.” For now, however, it’s probably sufficient just to describe the history and political background of this citizen-led effort as a way to understand its intent, without discussing specific provisions yet. In the spirit of open disclosure, this writer is a skeptic on this particular ordinance who looks forward to an instructive public debate. 

About three years ago both the City Council and the local League of Women Voters “encouraged” interested citizens to work on a focused Berkeley ordinance. However, unlike similar efforts such as recent work on the Downtown Area Plan, the Council did not charter a formal “taskforce,” which would have had a diverse membership appointed by all council-members. As a result, from the beginning the BSO committee has been a motivated and self-selected group open to anyone (not necessarily a bad thing, since a great deal of detailed work has been involved). That said, along the way a more formal taskforce would have had to hold widely-noticed open meetings to receive public comment on the evolving concepts and especially on the final draft before submission – something this “open government” committee has not vigorously provided. 

The actual BSO working group, whether by design or not, has been composed mainly of citizens long at odds with the City Council over urban planning and “development” issues and over relationships with the University. Often on the losing end of Council and ballot decisions, Berkeley ciizens holding these views often accuse the Council of being “unresponsive” (meaning it votes the wrong way for them) and of concocting “secret agreements” with the University or with a cabal of greedy developers. More-public decision-making, from this perspective, would help them better achieve their political goals.  

So I thought my recent farmer's market conversation with one BSO petitioner, Martha Nicholoff, was instructive. Martha was a principal proponent of 2002's Measure P, an initiative to downzone major streets that was defeated citywide by an 80%-20% supermajority which chose not to pre-empt the Council's traditional responsibilities. When I asked Martha why Berkeley needs more "open government," her reply was "so we can stop the City Council from making deals to Manhattanize Berkeley with 22-story towers that will just fall down in an earthquake." Without commenting on that assertion, here's what struck me: she voluntarily made an explicit link between the BSO and particular positions and decisions recently considered by the City Council, not just with the mechanics of local government. The theory seems to be that many Council decisions would be made differently if "the citizens have all the facts" -- implying that all such decisions of consequence must now be made by a collusion of special-interest groups outside the public eye. 

Mr. Metzger himself was an author of and principal spokesperson for 2008's Measure KK, an initiative that would have required a "democratic vote of the people," rather than the normal vote of the City Council, every time we wanted to rededicate the use of an auto traffic lane to a transit improvement. That measure received a 77%-23% citywide No vote, another indication that most Berkeleyans don't necessarily think that "more democracy" is automatically better than simply letting the Council do the job we elected it to do. In this case the overt goal of the initiative was to stop a pending bus rapid transit project by using the prospect of more democracy as a blunt political tool. 

I don't believe in guilt by association, and I do not mean to imply all members of the BS committee share these anti-current-Council political views. But at least we can see how particular political views, and opposition to a series of particular recent Council decisions, have joined with more politically neutral open-government advocacy to inspire the BSO. 

The cure for our present deficit of democracy is, in the BSO view, to make sure everything that matters occurs in full public view with abundant advance notice, with every scrap of relevant information viewable at will – and to make sure that it happens primarily at our evening meetings of citizen commissions and the Council. These meetings often run into the late-night hours and are most often attended by a subset of the same core group of 200-300 citizens who contend among themselves on almost every public matter. Yet it is in these vigorous public meetings of a small minority of citizens, BSO proponents feel, where democracy happens best in Berkeley. So the BSO would, for example, require "enough City Council meetings so that meetings adjourn around 11:00 p.m." regardless of the amount of public comment -- a provision without any limitation whatsoever. 

The critique most often made of this public-meeting-centric viewpoint is that we are the People’s Republic of Berkeley, not the People’s Democracy. Our City Charter is designed to take the “burden of daily government” off the public at large and – with appropriate checks on excess – to simply trust our representatives to do their jobs. Elected officials who are corrupt or overly “unresponsive” can be voted out or recalled if they truly do not represent the majority of their electing public.  

Moreover, our public meetings are definitely not set up to make citywide decisions based on polling the very small minority of citizens who happen to remain in attendance late into the night; public comment is meant to be only one of the multiple sources of information decision-makers need to weigh.  

So if the BSO qualifies for the ballot, we will need to look closely at how much it may impede the traditional flow of our republican government, and how much making decisions in brighter sunshine would change them -- toward views that only a typical 20-25% minority support. In short, we will need to ask whether the BSO has crossed the line from promoting "open government" to being deliberately "anti-government." 

Let me end with an analogy. All life on earth ultimately depends on sunlight. But the full light of the sun is actually hazardous -- so that we are also dependent on our protective atmospheric ozone layer, which moderates 100% sunshine to a level that lets us go about our normal lives. Berkeley's republican form of indirect government is, in effect, our political ozone layer. It intentionally encourages much of our day-to-day government decision-making to occur in an atmosphere of moderated delegation and trust, and not always in public view, as a deliberate and desirable civic benefit.  

There is no doubt that Berkeley could benefit from many of the specific provisions of the BSO, such as regularizing meetings and information access and enforcing a spirit of openness. But if this measure qualifies we will need to look closely at the totality of what it proposes to help us decide whether too much of a good thing is involved here, and how much of our political ozone layer we need to preserve. That community discussion is timely and worth conducting in its own spirit of full and open discussion. 



Alan Tobey is a Berkeley resident who voted with the majority on measures P and KK.