Proposed Sunshine Ordinance Overshadowed by Local Debate

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Ten years in the making, the city of Berkeley's open government ordinance appears to be finally taking shape, though the current draft presented to the Berkeley City Council Tuesday left some city officials and residents criticizing the apparent lack of sunshine in city processes and the ordinance itself.

The proposed ordinance, also known as a sunshine ordinance, was presented to the council for a first reading Jan. 25, but council members decided to postpone any debate or action on the ordinance to Feb. 15 in order to comply with the "spirit of sunshine" and not hold discussion past 11 p.m. Two readings of the ordinance are required to adopt it into city law.

The current draft consists of four major components it claims need changing - the agenda process, conduct of meetings, public records and the oversight function of the city's Fair Campaign Practices Commission - to ensure the public is informed of the city's activities and can efficiently communicate with city officials. However, some say the ordinance does not succeed in shining light on the inner workings of city government.

"The open government ordinance itself is a very, very weak ordinance," said Shirley Dean, former mayor and treasurer for the Citizens Sunshine Committee. "In fact, it takes a step backward."

Councilmember Jesse Arreguin, who submitted his own set of amendments at the meeting Tuesday, said in an interview that the current draft is "a darkness ordinance" that does not address several measures essential to an open government.

"It's sort of meaningless in that it doesn't actually ensure that it actually can be enforced and ... hold the city accountable," he said. "It's just words on a paper."

At a work session in September, the Citizens' Sunshine Committee came before the council to discuss the implications and components of an open government ordinance. The council then directed city staff to draft an ordinance to be presented this month.

The proposed ordinance requires the City Council hold at least 26 regular meetings each year - three more than last year and two more than in 2009 - while also establishing an earlier start time of 6 p.m. and a start time of no later than 10 p.m. for public hearings. It also says that the City Council agenda packet must be distributed 11 days before the scheduled meeting, an idea initially proposed by the sunshine committee.

However, the ordinance does not address the issue of supplemental items that are usually submitted to the council at the last minute and not immediately made available online. It also does not set a clear way in which the ordinance can be enforced.

"They're not addressing the central question," Dean said. "What they're saying is we want open government, but they're not saying what that means, how it's to happen."

After meeting with the Fair Campaign Practices Commission last Thursday, city staff amended the drafted ordinance to give the commission authority to make recommendations to the council rather than just submit reports. City staff also clarified that the commission would not have authority for oversight of the ordinance, but that a new Open Government Commission, consisting of the same membership as the Fair Campaign Practices Commission, would.

Steve Wollmer, chair of the Fair Campaign Practices Commission, said his commission is one of the only in the city with the authority and capacity to hold hearings and impose fines, so commissioners felt they had the expertise to administer the ordinance.

However, some have questioned whether the council can legally grant the commission this authority.

At the meeting Tuesday, Dean urged the council to establish its authority to amend the Berkeley Election Reform Act, which was adopted by voters as an initiative in 1974, by seeking a formal legal opinion. The act created the commission and outlines its authority.

"It's like a sneaky end run that simply does not respect the initiative process or the fact that these people were appointed for a different purpose," Dean said.

City Attorney Zach Cowan said in an e-mail that a report to the council on Feb. 15 will evaluate whether council members could legally award the commission the power of oversight for open government practices. He declined to comment further on the subject.

"If we're going to adopt a sunshine ordinance ... we need to make sure that it actually will have a meaningful effect to make government more transparent," Arreguin said.


Stephanie Baer is the assistant city news editor. Contact her at [email protected]

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