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Mayor Tom Bates has taken the first step in implementing the “most pressing” recommendation of his Task Force on Permits and Development—amending Berkeley’s obscure “ex parte” communications rule. The rule, adopted by the City Council in 1985 and strictly interpreted by City Attorney Manuela Albuquerque, places restrictions on communications with city councilmembers on pending construction developments. Presently, it bans all but written communication outside of a public hearing with councilmembers who are presently deciding—or might possibly decide in the future—on an application or appeal on a pending city development project.  

Albuquerque has warned councilmembers that contact with interested parties before the hearing raises questions of due process on the grounds that the councilmember could base decisions on evidence not submitted at the public hearing or that he would develop a bias before learning all the facts. 

City commissions which also conduct hearings are not bound by the council rule. Albuquerque, however, also counsels them against having ex parte communications and requires that they disclose any such communications before the hearing. 

In a late March letter seeking recommendations from the city’s various commissioners, Bates wrote that Berkeley “prohibit[s] in person private communication between ... decision makers and parties with an interest in the outcome of the decision. ... Many other cities follow less restrictive rules.” The City Council has scheduled an April 20 hearing on the issue. 

“It would be a much needed reform,” said Mayor Bates. “I think these issues would be less contentious if we had a chance to talk with people and give them guidance.” 

“[The ex parte rule is] the largest restraint to free speech in Berkeley history,” Councilmember Kriss Worthington remarked. 

His frustration is not uncommon. The city’s rule on ex parte communications—literally translated, conversations from one side—is one of the few issues that unite developers and the residents who most vociferously oppose their projects. 

Residents like Tim Hansen, denied the chance to talk to his councilmember about pending developments, haven’t been shy about voicing their dissatisfaction with the ex parte rule. 

“It’s outrageous. If you have to wait until a public hearing it’s almost assured the council will never have time to study your point,” Hansen said. 

“It puts the staff in a terrible position,” Mayor Bates said. They’re trapped in the middle between developers and neighbors, while we’re rendered neutral, so by the time things get to us people are furious.” 

Councilmember Gordon Wozniak faulted the current system with leaving the council in a “vacuum.” “We’re not able to get a give and take of the issues and we end up having nine minutes to find a solution in an ad hoc manner.” 

Even prominent Berkeley developer Patrick Kennedy of Panoramic Interests supports a change in the ex parte rule, saying he has always been “puzzled by the city attorney’s interpretation of the law.” 

Despite the apparent momentum for loosening restrictions, passage of a reform is hardly guaranteed. Since the council adopted the rule in 1985, it has twice voted against reforming it, most recently in 2001. Both times City Attorney Manuela Albuquerque recommended keeping the stricter interpretation. 

Not everyone favors a change, however. Councilmember Betty Olds noted that constituents can “send us e-mails galore,” and said she didn’t see anything unfair in the current system. 

Former councilmember Polly Armstrong said the current rule preserved a level playing field between all parties to a development issue. Armstrong also threw cold water on a proposal to change the ex parte rule by allowing parties to contact decision-makers privately, and then have the decision-makers fill out a disclosure form of who contacted them and what was discussed. Armstrong said it was “absurd” to think councilmembers or commissioners would make the effort to fill out the forms. “It’s not going to happen,” she said. “There’s no way people aren’t going to do it.” 

Albuquerque, meanwhile, believes that the city could face legal challenge if the council does not take the strictest and safest interpretation of the constitutional rights to due process, even though, she acknowledged, the law is unclear on the subject.  

“It’s not like it’s a clear cut issue. The U.S. Supreme Court has said this is a matter of flexibility, but there is no case in California that has ruled on this question.” 

State law does not mention ex parte communications in cases where the council or city commissions undertake a judicial proceeding, but does require that both sides of the argument receive due process. In essence for a hearing to be considered fair, all parties must be apprised of all information which has been provided to the decision-making body, so each party can be aware of and respond to that information.