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The Berkeley City Council voted unanimously Tuesday to postpone the public hearing on the Berkeley city attorney’s draft sunshine ordinance—which promises greater access to local government—to October and granted a 90-day extension to complete their work to the citizens’ group working on an alternate draft. 

The citizens’ group had requested a postponement of the public hearing at the council’s agenda committee meeting last week, but the committee refused the request at the time. However, the full council agreed this week to a motion by councilmember Laurie Capitelli to grant the postponement. 

At Tuesday’s meeting, Bates said he felt the need to clarify his position on the ordinance drafting process. 

Community members and some council members had complained the city was rushing to establish an ordinance because it was campaign season, and the mayor wanted to list the sunshine ordinance under his accomplishments. 

“The issue of a sunshine ordinance has been in front of the City Council since 2001, since before I was even in office,” Bates said. “There are some accusations that I asked the public to form a committee to draft a sunshine ordinance and that now I am preventing them from completing their work.” 

The city has been working on a sunshine ordinance since 2001, when at the request of Councilmember Kriss Worthington, the City Council asked the city manager’s office to look into improving the city’s sunshine policies, including the adoption of an ordinance.  

A review of the council’s March 20 work session records, Bates said, confirmed that the council had discussed various options to address legitimate concerns and differences of opinion raised by the four workshop panelists—Californians Aware General Counsel Terry Francke, Berkeley, Albany and Emeryville League of Women Voters President Jinky Gardner, American Civil Liberties Union Police Practices Policy Director Mark Schlosberg and Northern California Society of Professional Journalists member and Planet staff reporter Judith Scherr. 

According to Bates, the ideas included asking Francke and Schlosberg to work with the city attorney to develop a list of policy issues and options for council consideration, forming a citizen subcommittee to help them, and asking the League to sponsor a committee forum on a Saturday or Sunday. 

“None of these suggestions were moved or passed,” Bates said. “The final approved motion was to table the sunshine ordinance for action and have the city manager and mayor return with a process for moving forward.” 

A review of the March 20 council meeting recording by the Planet revealed that Scherr had stressed the importance of having an expert such as Francke involved in drafting an ordinance—something the mayor agreed with but did not formally make a motion about at the end of the work session. 

The city manager returned to council on May 8, Bates said, with the recommendation to develop a matrix of policy issues and recommendations and to post it online for public comment. 

A matrix identifying issues raised by Francke, Schlosberg, Scherr, SuperBOLD and councilmember Kriss Worthington had been posted online by the city attorney in October 2007, he said. The matrix can be viewed on the city’s website. 

“The city attorney provided this document to the above-mentioned people and received no comment from them,” Bates said. “The document remained open for public comment on the city's website through March 2008.” 

Bates said the city attorney’s office contacted Francke in late March to inform him that the sunshine ordinance had been posted online for the last six months and that comments on it would be presented to Council on April 22. 

“In that call—made in March of this year—the assistant city attorney [Sarah Reynoso] learned from Mr. Francke that there was a group of people working on an alternative ordinance and that he was not at liberty to tell her who they were,” he said. “Mr. Francke told her that he did not represent the group and therefore could not give her comments on what was posted on the web. This group is self-appointed since neither I nor the council ever decided to set up a citizen group to write an alternative ordinance without the involvement of our city staff.” 

Bates said that on April 2, the group sent him and the council a letter asking for a delay so they could complete their more extensive sunshine ordinance proposal.  

“Instead of this group providing comments and talking with staff to work out the issues, they printed their issues in the local paper today,” Bates said, referring to the April 22 publication of a commentary article the citizens’ group sent the Daily Planet. “Not much advance notice for any of us.” 

In the commentary, the citizens’ group stated that “sunshine-obstructionists, led by Mayor Bates,” were promoting “a weak, so-called sunshine ordinance in an effort to preempt” the group’s proposal. “In reality, their bill is more of a sunset ordinance—an ineffective proposal with no enforcement provisions, only masquerading as sunshine,” the commentary said. 

Bates said at the meeting that he wanted to see a list of the disputed policy issues and options the council could consider. 

“I appreciate the commitment and the time this group has devoted to this issue over the years,” he said. 

Dean Metzger, who spoke on behalf of the citizens’ group, said he had been under the impression that the mayor had asked the League of Women Voters to form a group. 

“We met because the League sent out an e-mail,” he said. “We didn’t do anything in secret. We thought you had asked to form a group.” 

Capitelli’s motion—which was unanimously approved by council—asked the citizens’ group to get its final draft together by the end of July, before council breaks for summer. 

“I am going to call it the Ad Hoc Sunshine Committee, since their members are probably secret,” he said, at which around 10 members from the citizens’ group promptly stood up to prove him wrong. 

The six-week summer recess, Capitelli said, would provide council adequate time to review the document. He added that alternate perspectives from the citizens’ group and city staff on the draft ordinance should be presented.