Until recently, I held the naïve belief that only objective language would be used in official voters’ materials. But I was wrong. Unlike the state attorney general, our city attorney is not legally required to use impartial language to explain ballot measures to the public. As a result, Berkeley voters do not have an absolute right to unbiased presentations of municipal measures.
In the case of Measure J, a citizens’ initiative updating and continuing our 1974 Landmarks Preservation Ordinance (LPO), the ballot summary is far from objective. That’s because the same person who wrote the ballot language for Measure J is also the principal author of the competing Revised LPO, championed by Mayor Tom Bates and passed by the City Council on first reading. Deputy City Attorney Zac Cowan, who has been working to reduce the protections of our LPO for over six years, wrote the final ballot language for Measure J and submitted it to the City Council just minutes before the vote to approve it.
Consequently, there was no time for councilmembers to study the text or for the public to respond. Still, this didn’t stop a majority of councilmembers from approving Cowan’s language over the dissenting voices of Betty Olds, Dona Spring, and Kriss Worthington. Thus, the official presentation, purporting to explain Measure J to the public, was written and approved by officials who actually oppose Measure J.
In an effort to give the public the truth, some members of the Berkeley Architectural Heritage Association wrote alternative ballot language and submitted it to the city; which promptly rejected it. So Measure J supporters filed a Writ of Mandate in Superior Court in an attempt to have fully truthful language placed on the ballot. But since falsehoods in the council-approved version were not deemed egregious enough, the city’s language remains on the ballot. The judge did not rule that the city’s version was accurate; he said, “while the statements [in the city attorney’s version] were misleading, they were not misleading enough” to order them removed.
While current law may require higher levels of deception before a court can remove language from our municipal ballots, that doesn’t answer one very simple question. Is language that is misleading, but not misleading enough, what Berkeley voters deserve from City Hall? In the long run, a strong Sunshine Ordinance may address this issue, but, today, we have to fight for the simple right to get truthful information to cast an informed vote.
The people of Berkeley deserve to see the language that the city rejected on their behalf. Had the alternative language been allowed, Berkeley voters would have voted on the question, below:
Shall a Landmarks Preservation Ordinance be adopted:
1) continuing the existing provisions and protections in the current state certified ordinance;
2) establishing professional qualifications for landmarks commissioners;
3) adding historic “integrity” to criteria for designation or alteration of landmarks, structures of merit and historic districts;
4) providing the Landmarks Preservation Commission authority to disapprove demolition of historic resources;
5) authorizing the city in an emergency to deny without prejudice, up to 180 days, applications affecting an historic resource,
6) and extending the time the city is prohibited from acting on applications to demolish some nonresidential buildings over 40 years old?
Financial implications: none
The city attorney’s analysis of Measure J is as deceptive as his ballot title. Although our LPO was certified by the state to be consistent with all applicable state and federal laws and updates to it were those suggested by the state Office of Historic Preservation, the council-approved analysis completely omits this. Instead, the city’s version says exactly the opposite; it asserts potential conflicts with state law, where there are none. That’s either an extremely careless mistake or an outright fabrication, designed to Swiftboat Measure J.
Furthermore, Cowan’s language does not properly explain how Measure J would update our LPO with modern preservation practices and laws. One new provision would “establish professional qualifications for at least four of nine landmarks commissioners.” A second would “add historic integrity to the criteria used by the commission when reviewing applications for designation and alterations of historic resources.” The city attorney omits both of these points in his analysis. Finally, the Landmarks Preservation Commission would be able to deny (and not just suspend) demolitions of historic resources to preserve them for future generations. (This is in accordance with the U.S. Supreme Court decision that saved New York’s Grand Central Station from demolition.)
Why wouldn’t the council majority want Berkeley voters to have this information? Maybe it’s because they don’t want citizens to know how much power they’d lose under the council’s revised ordinance. A yes vote on Measure J puts the power where it belongs—with the people.
Judith Epstein is a Berkeley resident.