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FINAL DRAFT: CITY of BERKELEY SUNSHINE ORDINANCE
FINAL DRAFT
CITY of BERKELEY
SUNSHINE ORDINANCE
Creating Chapter 1.30, Berkeley Municipal Code
Establishing Local Standards to Ensure
Public Access to Public Meetings and
Public Records
BERKELEY SUNSHINE ORDINANCE CREATING CHAPTER 1.30 ESTABLISHING LOCAL STANDARDS TO ENSURE PUBLIC ACCESS TO PUBLIC MEETINGS AND PUBLIC RECORDS
Berkeley Sunshine Ordinance
Contents
Page
1.30.000 Title of Chapter ----------------------------------------------------------------------------- 1
1.30.001 Findings --------------------------------------------------------------------------------------- 1
1.30.002 Purpose ---------------------------------------------------------------------------------------- 1
1.30.003 Applicability --------------------------------------------------------------------------------- 1
1.30.004 Definitions ------------------------------------------------------------------------------------ 1
Article 1: Meetings
1.30.005 Meetings to be Open ------------------------------------------------------------------------ 5
1.30.006 Time, Place, and Frequency of Meetings ------------------------------------------------ 5
1.30.007 Submitting Items for the Regular Meeting Agenda ------------------------------------ 6
1.30.008 Meeting Documents Submitted by Members of the Public --------------------------- 7
1.30.009 Posting of Draft Agendas for Regular Meetings --------------------------------------- 8
1.30.010 Posting of Final Agendas for Regular Meetings---------------------------------------- 8
1.30.011 Distribution of Final Agenda and Agenda Packets for Regular Meetings ---------- 9
1.30.012 Agenda Content ----------------------------------------------------------------------------- 9 1.30.013 Action Requirements for all Legislative Bodies ---------------------------------------- 10
1.30.014 City Council Agenda Sequence ----------------------------------------------------------- 10
1.30.015 Public Comment and Disclosure at Open Meetings ------------------------------------ 11
1.30.016 Public Comment and Disclosure at Public Hearings ----------------------------------- 11
1.30.017 Speech Rights of the Public at Meetings ------------------------------------------------ 13
1.30.018 Breaks During Item Discussions --------------------------------------------------------- 13
1.30.019 Closed Sessions ----------------------------------------------------------------------------- 14
1.30.020 Special Meetings ---------------------------------------------------------------------------- 15 1.30.021 Emergency Meetings ----------------------------------------------------------------------- 15
1.30.022 Reporting Requirements for Meetings of Regional and Other Agencies ----------- 16
1.30.023 Special Community Engagement Process ----------------------------------------------- 16
1.30.024 Audio or Video Recording and Broadcasting of Meetings ---------------------------- 17
1.30.025 Meeting Minutes ---------------------------------------------------------------------------- 18
Article 2: Access to Public Records
1.30.026 Training and Direction to City Staff ------------------------------------------------------ 18
1.30.027 Posting of Information ---------------------------------------------------------------------- 19
1.30.028 Public Review File --------------------------------------------------------------------------- 20 1.30.029 Public Records Index ------------------------------------------------------------------------ 20
ii
Berkeley Sunshine Ordinance
Contents (Continued)
1.30.030 Records of Officials; Appointment Calendars; statement of Economic Interest ---- 21
1.30.031 Contributions to the City -------------------------------------------------------------------- 21
1.30.032 Reports of Lobbing ------------------------------------------------------------------------- 22 1.30.033 Types of Information Accessible by the Public ----------------------------------------- 22
1.30.034 Access to Electronic Records -------------------------------------------------------------- 25
1.30.035 No Public Interest Test or deliberative Process privilege ------------------------------ 26
1.30.036 Process for Obtaining Records ------------------------------------------------------------- 26
1.30.037 Request for Waiver of Confidentiality ----------------------------------------------------- 27
1.30.038 Fees for Records ------------------------------------------------------------------------------ 28
Article 4: Complaints, Violations and Enforcement
1.30.039 Sunshine Ordinance Review Commission ----------------------------------------------- 28
1.30.040 Commission Membership ------------------------------------------------------------------ 29
1.30.031 Vacancy on Commission: Removal for Cause and Filling of Vacancy -------------- 30
1.30.042 Organizational Period ----------------------------------------------------------------------- 30
1.30.043 Commission Staffing ------------------------------------------------------------------------ 31
1.30.044 Commission Legal Council ---------------------------------------------------------------- 31
1.30.045 Enforcement Committee; Appeals --------------------------------------------------------- 31
1.30.046 Public Records Access Denials; Administrative Appeals ------------------------------- 31
1.30.047 Public Meeting and Noticing Violations; Administrative Appeals -------------------- 32
1.30.048 Judicial Review ------------------------------------------------------------------------------- 33
1.30.049 Penalties --------------------------------------------------------------------------------------- 33
1.30.048 Annual Reports; Role of City Attorney --------------------------------------------------- 34
Article 5: SEVERABILITY
1.30.049 Severability ------------------------------------------------------------------------------------ 34
End of Chapter
iii
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. Chapter 1.30 is added to the Berkeley Municipal Code to read as follows:
1.30.000 Title of Chapter.
This Chapter shall be known as the Berkeley Sunshine Ordinance.
1.30.001 Findings.
A. The City of Berkeley is committed to a robust and wide-ranging discussion of public issues and full access to public information.
B. This commitment is reflected in the wide array of advisory boards and commissions with appointed community members, who provide recommendations to the City Council on a range of public policy issues after seeking and obtaining input from the Berkeley community.
C. Participatory democracy requires that members of the public have timely access to the same information relating to issues as is available to their elected representatives; that members of the public must have the opportunity to present their opinions and information in the presence of their representatives prior to any decision being made; that representatives should reach their decisions in full view of the community, and that open access to public records shall be provided to the maximum extent possible.
D. The nature of the City’s sunshine policies and practices are often not publicly known or readily ascertainable, and many are not required by any City Council resolution.
E. It is advisable to codify existing and new policies to ensure they are followed.
F. The adoption of this Ordinance expands upon and supplements state law, and also has the salutary effect of providing the public with notice of the City’s public access procedures.
1.30.002 Purpose.
The purpose of this Chapter is to set forth the City’s policy regarding public participation in the deliberations of the City’s Legislative Bodies, to ensure public access to public records, and to establish the City’s intent to expand such participation and access beyond that required by other applicable law, including without limitation all other local, state, or federal statutes. 1.30.003 Applicability.
The provisions of this Sunshine Ordinance supersede other Berkeley laws that address the same issues.
1.30.004 Definitions.
A. Agenda: “Agenda” means a list of information about a Meeting, including the identity of the Legislative Body conducting the Meeting, the time and location of the Meeting, a meaningful description of each item of business to be transacted or discussed at the Meeting, the proposed action for each item, and a list of the documents that are to be provided to the Legislative Body in connection with each item.
B. Agenda Packet: “Agenda Packet” means an Agenda of a Meeting and all supporting documents including contracts, agreements, letters of intent or memoranda of understanding, and reports, including any amendments or modifications to those documents and reports, any reports or memoranda prepared by a member of the Legislative Body, City or Council Staff, any reports of outside consultant(s), advisor(s), or contractor(s), and all communications pertaining to all matters anticipated for discussion or consideration at a public Meeting.
C. City: “City” means the City of Berkeley, California.
D. City Council: “City Council” means the Mayor and all Council Members.
E. City Staff: “City Staff” means the City Manager, department heads, executive directors of Legislative Bodies, employees of all entities in the City Charter, and persons retained as contractors.
F. Closed Session: “Closed Session” means that portion of a Meeting from which the public is excluded. A Closed Session is always preceded by a public comment period open to the public, and is followed immediately by an open session, during which all actions taken by the members of the Legislative Body are reported.
G. Community Meeting: “Community Meeting” means a Meeting that meets the definition of a Meeting in Section N below, but which emphasizes interaction between members of the Legislative Body, City Staff, and members of the public by allowing more frequent and longer public comment than is allowed for regular Agenda items and public hearings, and by allowing for informal dialogue between members of the Legislative Body, City Staff, and the public.
H. Community Newspaper: “Community Newspaper” means a newspaper that is published at least forty-five (45) times per year, distributes at least ten thousand (10,000) copies of each issue in all parts of the City of Berkeley, and devotes at least fifty (50) percent of its news coverage to a wide range of Berkeley issues on a regular basis. If no newspaper that meets this definition exists, the Sunshine Ordinance Review Commission shall determine what constitutes a Community Newspaper.
I. Council Staff: “Council Staff” means all employees or volunteers directly serving the City Council and the Mayor.
J. Custodian of Records: “Custodian of Records” means the City Manager, or other person(s) appointed by the City Manager, to be in charge of the records of any entity subject to this Ordinance.
K. Deadline: “Deadline” means any time or date by which an action, such as a noticing, production of document, or decision, is required under this Ordinance. Unless otherwise specified, days to be counted shall be calendar days, and the Deadline shall be computed as follows: When computing a Deadline backward from a Meeting or other event, the first day counted shall be the day before the event, and if City offices are closed on the last day counted, the preceding work day shall be the Deadline. When computing a Deadline forward from an event, the first day counted shall be the day after the event, and if City offices are closed on the last day counted, the following work day shall be the Deadline.
L. Legislative Body: “Legislative Body” means any of the following:
1. A governing body of the City of Berkeley shall include, but not be limited to the City Council, Rent Stabilization Board, Library Board of Trustees, Redevelopment Agency, and Housing Authority.
2. A commission, committee, board, or other body of the City of Berkeley whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, formal action, or consensus of a Legislative Body, including advisory committees, subcommittees, and task forces.
3. A board, commission, committee, or other multimember body of the City of Berkeley that governs a private corporation or entity that either is created by the elected Legislative Body, or the creation of which is facilitated by the City Manager, in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation or entity.
M. Lobbyist: “Lobbyist” means a person, business, or organization that receives or becomes entitled to receive compensation, in any month, for influencing legislative or administrative action or that compensates its employees or members for their lobbying activities.
1. “City Lobbyist” means a person or business entity that is designated to represent the City in matters before any local, regional, state, or federal administrative or Legislative Body.
2. “Special Interest Lobbyist” means a person who is paid by or represents any agency, organization, or business entity to influence City policy.
N. Meeting: “Meeting” means
1. A gathering of a quorum of the members of a Legislative Body at a specified time and place, including teleconferencing, to hear, discuss, or deliberate on any matter that is within the jurisdiction of the City.
2. “Meeting” does not include:
a. Individual contacts or conversations between a member of a Legislative Body and another person.
b. The attendance of a majority of the members of a Legislative Body at a regional, state, or national conference, or at a public meeting organized to address a topic of local community concern, and open to the public.
c. The attendance of a majority of the members of a Legislative Body at a purely social, recreational, or ceremonial occasion.
d. The attendance of a majority of the members of a Legislative Body at an open and noticed meeting of a committee of the same Legislative Body, provided that the members of the Legislative Body who are not members of the committee attend only as observers or as members of the public and do not have the right to comment.
e. Notwithstanding the above, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the Legislative Body to develop a collective concurrence as to action to be taken on an item by the members of the Legislative body, is prohibited.
O. Minor Correction: “Minor Correction” means a correction that consists only of a change in spelling or grammar with no significant change in meaning.
P. Public Records: “Public Records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
Q. Quorum: “Quorum” means a majority of the total authorized membership of a Legislative Body. No ordinance, resolution or motion of a Legislative Body shall be deemed approved without receiving at least the number of affirmative votes equal to that of a quorum for that body except as may be specified by other provisions of this Ordinance.
R. Writing: “Writing” means any document, handwriting, typewriting, printing, photostating, photographing, photocopying, transmission by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
Article 1
Meetings.
1.30.005 Meetings to be Open
All Meetings of Legislative Bodies shall be open and public, except as modified below by Section 1.30.019 regarding Closed Sessions. All Meetings of Legislative Bodies shall be governed by the provisions of existing statutes and this Ordinance. In the case of different requirements under existing statutes and this Ordinance, the requirement that would result in greater public access shall apply.
1.30.006 Time, Place, and Frequency of Meetings.
A. Each Legislative Body shall establish a time and place for regular Meetings. All Legislative Bodies shall schedule Meetings at times when a significant portion of the public is likely to attend. Meetings shall not be scheduled on holidays
B. The place and time of Meetings shall be made known to any member of the public upon inquiry, posted on the City's website, and noticed in accordance with Sections 1.30.009 and 1.30.010.
C. All Legislative Bodies shall conduct all of their Meetings within the City limits of Berkeley, California unless the City Council finds, in advance of a Meeting, that the City’s interests are likely to suffer if the Meeting is held within the City limits.
D. All Meetings of all Legislative Bodies shall be held in a publicly accessible location which shall include disabled accessibility and shall have adequate amplification so that members of the audience, wherever positioned, can hear the deliberations of the Legislative Body.
E. Meetings of Legislative Bodies shall be held in locations which have video transmission capability as determined by the City Council.
F. If a Meeting is likely to be attended by a large number of the public, the Agenda scheduling process for each Legislative Body shall provide for holding the Meeting in a venue large enough to accommodate the numbers anticipated to attend and which meets the requirements of this Section.
G. If at a Meeting of a Legislative Body, the body determines that the number of members of the public who want to attend the meeting is larger than can be accommodated in the usual Meeting place, the Legislative Body shall, by its own motion, change the location of the Meeting, if such a location is nearby that will better accommodate the number of people and meets the requirements of this Section. Such change of location shall require the posting of prominent notices of the change. If such alternative location is not available, the Meeting shall be canceled and re-scheduled to another date and place that will accommodate the number of people expected to attend.
H. A sufficient number, but no fewer than forty (40) regular City Council Meetings shall be held throughout the calendar year, to ensure the City's business is completed in a public and timely manner in accordance with the provisions of this Ordinance.
I. A meal or other gathering of a Legislative Body before, during, or after a Meeting of the Legislative Body is part of that Meeting and shall be conducted only under circumstances that permit the public to hear and observe the discussion. Meal gatherings shall not be conducted in a location where public access requires making a purchase or some other payment.
1.30.007 Submitting Items for the Regular Meeting Agendas.
A. Each Legislative Body shall establish a process for placing items on its own regular Meeting Agendas. This process shall include the designation of a contact person responsible for receiving proposed Agenda items and related documents. Information regarding the process for submitting items, including contact information and Deadline dates shall appear on the City’s website and on the printed Agenda for each Meeting of the Legislative Body.
B. Any procedure for setting the Agenda by a Legislative Body shall provide for public participation with timely notice in compliance with this Ordinance.
C. All items for the City Council’s regular Meeting Agenda submitted by the Mayor, Members of the City Council, Auditor, City Staff, other Legislative Bodies, and members of the public as specified in Subsection D below, that are submitted in accordance with the Deadlines in Subsection G below, shall be submitted to the established Agenda process. Items for the regular Meeting Agenda of other Legislative Bodies submitted by Members of the relevant Legislative Body, City Staff, and other Legislative Bodies, and members of the public as specified in Subsection D below, that are submitted in accordance with the Deadlines in Subsection G below, shall be submitted to the appropriate established Agenda process.
D. Any member of the public may place an item on the Agenda of a Legislative Body by collecting twenty-five (25) or more signatures of Berkeley residents and presenting the item, with supporting signatures, to the designated Agenda contact person of the appropriate Legislative Body.
E. All proposed Agenda items submitted in accordance with Subsections C and D above shall appear on a regular Agenda of the Legislative Body.
E. Each submitted item shall include the sponsor’s proposed Agenda date. When a submitted item is held for a date that is different from the date proposed by its sponsor(s), the Agenda contact person shall notify the sponsor(s) and explain in writing the reasons the date has been changed. The Agenda contact person shall also provide a date certain that the item shall appear on the Legislative Body’s Agenda. In making the decision to hold an item to a Meeting date that is different from the sponsor’s proposed date, information submitted by proponents of the item regarding timeliness of the item shall be considered.
F. Any request submitted under Subsection C and D above for a presentation to a Legislative Body shall be submitted in the same manner as other Agenda items, and follow the same deadlines. The request for a presentation shall include general information regarding the purpose and content of the presentation, information on the presenters, contact information, and the length of the presentation. The designated Agenda contact person shall coordinate use of any presentation equipment and receipt of additional written material that is associated with the presentation.
G. Deadlines for submission of Agenda items for regular Meetings
1. All items, except for old business, to be considered for placement on the regular Meeting Agenda of a Legislative Body, shall be furnished to the Agenda contact person for that Legislative Body, no later than 12:00 noon, twenty (20) or more calendar days prior to the Legislative Body’s meeting for which the items shall appear on the Agenda.
2. Information regarding all items submitted for placement on the Agenda of a regular Meeting shall be available to the public no later than 5:00 PM, twenty (20) or more calendar days prior to the Legislative Body’s meeting for which the items shall appear on the Agenda. This information shall be supplied to the public in the form of a list, which includes the sponsor’s name and title for each item submitted. The information shall be posted on the City’s website and in written form in the office of the Agenda contact person, and shall include the date and place of any Meeting, if such Meeting is to be held, at which the draft Agenda will be discussed and final Agenda determined.
3. The Agenda contact person shall not accept any item or revised item for inclusion on the Agenda of a regular Meeting after the established deadline.
1.30.008 Meeting Documents Submitted by Members of the Public.
A. Documents submitted by members of the public that are received at least twelve (12) calendar days before a regular Meeting of a Legislative Body shall be included in the Agenda Packet to be issued eleven (11) calendar days in advance of the Meeting, and shall be posted on the City’s website, and shall be available at the locations described in Section 1.30.010.
B. Documents submitted by members of the public after the twelfth (12th) day and through the fifth (5th) day prior to a regular Meeting of a Legislative Body shall be distributed to the members of that body in Supplemental Agenda Communications Packet #1, posted on the City’s website, placed in a viewing binder available to the public, and made available at the locations described in Section 1.30.010.
C. Documents submitted by members of the public, sent to the members of a Legislative Body as a whole either individually or as a whole, or to the secretary of the Legislative Body for distribution, which are received after the fifth (5th) day and prior to 12:00 noon on the day of the Legislative Body’s regular Meeting, shall be included in Supplemental Agenda Communications Packet #2. On the afternoon of the Meeting, Supplemental Agenda Communications Packet #2 shall be posted on the City’s website and available to the public in the City Clerk’s office or appropriate department office. Copies shall be available at the Meeting.
D. Documents submitted by members of the public that are received after 12:00 noon on the day of the Legislative Body’s regular Meeting, including during the Meeting, shall be included in Supplemental Agenda Communications Packet #3. When a document is submitted by a member of the public at the Meeting, it shall be distributed to members of the Legislative Body immediately upon submission, if thirty (30) copies have been provided: twenty (20 for the Legislative Body and staff, plus ten (10) copies the public. If fewer than thirty (30) copies have been provided, the document shall be placed in Communication Packet #3 and the Clerk shall distribute copies to members of the Legislative Body prior to the Deadline for copies to be distributed to the public. All such documents shall be available for review by members of the public online and in hard copy by 3:00 PM, two (2) business days following the Meeting.
E. E-mails received from the public shall have the originating e-mail address redacted unless the author requests otherwise.
1.30.009 Posting of Draft Agendas for Regular Meetings.
A. On the fourteenth (14) day prior to the regular Meeting of the Legislative Body, the Agenda contact person shall post a draft Agenda and any accompanying items for the subsequent regular Meeting at the place and in the same manner applicable to posting the notice of the final Agenda described in Section 1.30.010.
B. The draft Agenda for a regular Meeting shall contain a prominent notification that the Agenda is subject to change in accordance with other provisions of this Ordinance.
C. The Agenda contact person shall file an affidavit indicating the location, date and time of posting of each draft Agenda.
1.30.010 Posting of Final Agendas for Regular Meetings.
A. Each Legislative Body shall designate one or more physical locations to post notices and Agendas required by this Ordinance. Designated posting locations shall be freely accessible to members of the public twenty-four (24) hours per day. In addition, notices and Agendas shall be posted on the City’s website.
B. Any Agenda notice that is mailed, posted, or published by a City department or Legislative Body shall be brief, concise, and written in plain, easily understood language with no use of undefined acronyms.
C. The final Agenda Packet for a regular Meeting of a Legislative Body shall be posted on the City’s website and at the appropriate designated physical posting locations on the eleventh
(11th ) day prior to the regular Meeting to which it applies. The City Clerk, or secretary of a Legislative Body, shall file an affidavit indicating the location, date and time of posting each Agenda.
1.30.011 Distribution of Final Agendas and Agenda Packets for Regular Meetings.
A. No later than eleven (11) days prior to a regular Meeting, copies of the Agenda shall be mailed by the Agenda contact person to any resident of the City, or member of the press, who so requests in writing. Copies shall also be available free of charge no later than eleven (11) days prior to a regular Meeting in the office of the Agenda contact person and also at the information and reference desks of the main public library, and each branch library, and at other locations deemed appropriate by the Legislative Body.
B. No later than eleven (11) days prior to a regular Meeting, the Agenda contact person of the appropriate Legislative Body shall distribute the Agenda Packet to each member of the Legislative Body. The Agenda Packet shall also be made available to members of the press upon their request and be available in hard copy in a viewing binder in the office of the Agenda contact person of the appropriate Legislative Body, and also at the information and reference desks of the main public library, and each branch library, and at other locations deemed appropriate by the Legislative Body.
1.30.012 Agenda Content .
A. Every Agenda for a regular, special, or Closed Session shall contain a statement explaining wheelchair accessibility and other disability-related accommodations.
B. Every Agenda for regular, special, or Closed Session shall state that any person may address the Legislative Body on Agenda items, and every Agenda for regular or special Meetings shall state that any person may also address the Legislative Body on Non-Agenda items. This advisory regarding the public’s speech rights during the Meeting shall include all requirements contained in Sections 1.30.014, 1.30.015, 1.30.016, and 1.30.017.
C. Agenda items shall provide the following minimum information: a description, including the length of time involved, known effect, and fiscal impact, if any; action being recommended; the website on which documents related to the item have been posted; and contact information to obtain further information.
1.30.013 Action Requirements for All Legislative Bodies.
A. No discussion or action by the Legislative Body shall be taken on any item not appearing on the Agenda. However, the Legislative Body may refer such a matter to appropriate staff, or request that the matter be placed on the next Meeting Agenda.
B. No Agenda item shall be considered at the Meeting if it is not included in the packet with all of its supporting documents. After the eleventh (11th ) day Deadline, no change to Agenda items or its supporting documents may be made, except that a Minor Correction, as defined in Section 1.30.004 O, to an item already included in the packet may be considered.
C. Reports and other material for Agenda items carried over as old business shall be reproduced again if three weeks have passed since the item was last on an Agenda.
1.30.014 City Council Agenda Sequence.
The Agenda for regular Meetings of the City Council shall be:
A. Staff announcements and ceremonial matters: maximum of fifteen (15) minutes.
B. Preliminary consent calendar: removal of items and additions to the preliminary consent calendar by members of the Council, except appeals shall not be moved to the preliminary consent calendar.
C. Public comment on each item on the preliminary consent calendar. D. Determination of final consent calendar and approval of final consent calendar.
E. Public hearings.
F. Appeals: with public comment on each item.
G. Items removed from the consent calendar: with public comment on each item.
H. Action calendar: with public comment on each item.
1. Priority Items as determined by Council and City Manager
2. Old business
3. New business
I. Public comment on Non-Agenda items. Each speaker to be limited to two (2) minutes. Two (2) speakers may combine time if both speakers are present at the Meeting.
J. Reports regarding attendance at regional meetings, other Legislative Bodies and other agencies.
K. Information reports: with public comment on each report.
L. Communications.
M. Adjournment. It is the intent of this Section combined with the number of Meetings required in Section 1.30.006 H that all Agenda items and all Non-Agenda public comment be completed prior to 11:00 PM. Meetings shall adjourn at 11:00 PM. At 10:00 PM, the Council shall assess what remains on the Agenda to complete. Members of the public who plan to speak on Non-Agenda items are advised to be present at 10:00 PM so the presiding officer may assess the number of speakers before adjournment. The Council shall not adjourn at 11:00 PM until public comment on Non-Agenda items has been completed. The Meeting beyond the completion of Non-Agenda public comment may be extended by a two-thirds (2/3s) affirmative vote of the Council Members present. Any motion to extend the Meeting shall include a list of Agenda items to be covered, and shall specify the order of the items to be considered.
1.30.015 Public Comment and Disclosure at open Meetings.
A. Any person attending an open Meeting of a Legislative Body shall be provided an opportunity to address the body on any item on the Agenda before or during discussion of the item and prior to any action by the Legislative Body, as well as an opportunity to comment on Non-Agenda items. Each person wishing to comment shall be entitled to speak for three (3) minutes on each Agenda item and for two (2) minutes during the public comment period on Non-Agenda items.
B. Any ex parte contact regarding Agenda items not subject to public hearing shall be disclosed by placing the contact name on a list maintained by the City Clerk as part of the record regarding that particular item.
1.30.016 Public Comment and Disclosure at Public Hearings.
A. Prior to the beginning of the public hearing, each member of the Legislative Body is required to disclose and describe in writing all ex parte contacts he or she has had concerning the subject of the hearing. Such reports shall be available for public review in the office of the secretary to the Legislative Body prior to the Meeting, and placed in a file available for public viewing at the Meeting. At the beginning of a public hearing, each member of the Legislative Body shall also orally disclose and describe all ex parte contacts concerning the matter.
B. For all public hearings, except those described in Subsection C below, following the disclosure required in Subsection A above, City Staff shall introduce the public hearing and present its comments prior to public comment.
C. For appeals that are set for public hearings, the following shall apply:
1. It shall be understood that any quasi-judicial act of a Legislative Body other than the Sunshine Ordinance Review Commission may be appealed to the City Council with a Deadline for filing to be no less than fourteen (14) calendar from the date of filing of the Notice of Decision of that act, unless another timeline is noted in the ordinance that applies to the relevant Legislative Body where the decision that is being appealed originated.
2. Except for zoning appeals, significant new information on any subject heard by the City Council may not be prohibited from consideration and action in future meetings except as expressly prohibited by this Ordinance and State law. There shall be no time restrictions on when significant new information may be heard by a Legislative Body other than those written in this Ordinance and state law. 3. For public hearings regarding appeals on zoning, land use, landmarks and building code matters, following the disclosure required in Substation A above, and the staff’s introduction and comments, the speaking protocol for public hearings on zoning, land use, landmarks, and building code hearings and appeals shall be as follows:
a. The Applicant, or his/her representative(s) shall be allocated up to five (5) minutes to present the project that is the subject of the public hearing. This shall be followed by equal time for the Appellant or his/her representative(s) to present the appeal.
b. Members of the public shall then be allowed three (3) minutes each to comment. Groups of up to six (6) speakers shall be allowed to combine their speaking times, provided that all members of the group are present at the Meeting.
c. After all public comment has been received, the Applicant or Applicant’s representative(s) shall be given no less than five (5) minutes for final argument, followed by equal time for the Appellant or Appellant’s representative(s).
d. Following final arguments, no more than two (2) persons representing the Applicant and no more than two (2) persons representing the Appellant shall sit with City Staff at the staff table with opportunity to answer questions and respond to comments made by members of the Legislative Body.
e. After hearing public testimony, the Legislative Body may close the hearing, or continue it to another specified date. Action following the close of a public hearing shall take place at the next Meeting of the Legislative Body to allow members of the Legislative Body time to consider the testimony and any new information received at the hearing. If it is legally required to take action at the same Meeting following the receipt of testimony, the Legislative Body shall state the reason for doing so before acting upon the subject of the public hearing.
1.30.017 Speech Rights of the Public at Meetings.
A. At the start of each Meeting, the presiding officer shall inform the public that their rights are posted on the Agenda and at the entrance of the Meeting room and include the following:
1. At any time up to and including during the Meeting, if a matter is considered to be a violation of this Ordinance, a member of the public may submit a complaint on a Special Sunshine Alert form developed by the Sunshine Ordinance Review Commission. Before a Meeting the City Clerk shall transmit the Alert form to appropriate City Staff. During the Meeting, the City Clerk or secretary of a Legislative Body shall submit any Alert received to the City Attorney or designated staff of other Legislative Bodies. The City Attorney or other appropriate staff member shall announce the substance of the Alert to the Legislative Body at the time the item is before the Body. The presiding officer will decide what action, if any, will be taken at that time. The Alert will be reported to the Sunshine Ordinance Review Commission at the discretion of the member of the public who filed the Alert. If the matter is reviewed by the Commission, a follow-up report will be placed on the Agenda of the Legislative Body at the next regular meeting of the Legislative Body.
2. The right to criticize without personal attack or support the policies, procedures, programs, or services of the City Staff, the Legislative Body, or its individual members during public comment or by holding signs.
3. The right to use, when commenting, presentation tools, which shall be provided by the City when requested five (5) business days in advance.
1.30.018 Breaks During Item Discussions.
To ensure that business is conducted in the open, Legislative Bodies shall not take breaks during discussion of an Agenda item, except as shall be necessary for the captioner. Every effort shall be made by the presiding officer of the Legislative Body to provide for such breaks before the Legislative Body begins discussion of an item or after it has finished the discussion. When an item is continued to a future meeting, at that subsequent meeting, each member of the body shall disclose orally the general nature of any conversations with other members of the Legislative Body pertaining to the held-over item that took place during the continuance.
1.30.019 Closed Sessions.
A. Before any Closed Session, a Legislative Body shall meet in open session for the purpose of taking public comment solely on the item(s) which is (are) the subject of the closed session.
B. No discussion shall take place in the Closed Session that is not pertinent to item(s) listed on the Agenda.
C. Description of items on the Agenda shall be clear and written in plain language without the use of undefined acronyms.
D. For Closed Sessions on litigation matters, the Agenda shall list the parties involved, the actions being considered and court case numbers, if such numbers have been assigned.
E. For Closed Sessions on real property negotiations, the Agenda shall identify the property at issue by address and parcel number, disclose any development plans for the property, and specify any source(s) of payment for the property.
F. All Closed Sessions of any Legislative Body shall be audio recorded in their entirety and made a part of a minute book consisting of a record of topics discussed and decisions made at the Meeting.
G. Immediately following the end of the Closed Session, the Legislative Body shall state the specific action or non-action taken and the Legislative Body shall revote on the resultant action or non-action in full view of the public.
H. All proposed agreements for the purchase or sale of real estate, all proposed contracts with represented and unrepresented employees, and all agreements with other Legislative Bodies and regional agencies discussed in Closed Session shall not be deemed approved until the vote is taken in a regular open Meeting. All proposed agreements between the City and other entities regarding land use and transportation issues that have been discussed in Closed Session shall not be deemed approved or rejected until a public hearing has been held and a vote is taken following the hearing. Such items shall be placed on the Agenda of a subsequent regular Meeting in the same manner that any new item is placed on the Agenda of the Legislative Body.
I. The location of these open session reports shall be in a venue that is available to the public and press and which supports video for internet broadcast and video-streaming. The report on Closed Session actions shall be posted, no later than the end of the following business day, to the City’s website and to all other places where the Agenda of the relevant Legislative Body is posted.
1.30.020 Special Meetings.
A. A presiding officer, or three (3) members of a Legislative Body, may call a special meeting with five (5) calendar days notice, but only for the purpose of considering a single item about which information has come to light after the last regular Meeting of the Legislative Body, and which requires action prior to the next regular Meeting of the Legislative Body, and which will do irreparable harm to the City if the Legislative Body does not take action before the next regular Meeting.
B. The reason and timing for the special Meeting shall be printed on the notice and Agenda for the special meeting, and together with supporting materials shall be available free of charge in the office of the Agenda contact person, and also at the information and reference desks of the main public library, and each branch library, and at other locations deemed appropriate by the Legislative Body.
C. At the beginning of the special meeting, after public comment is received, the Legislative Body shall vote on whether to proceed with the special meeting. The special meeting shall proceed only with an affirmative two-thirds (2/3) vote of the entire Legislative Body whether present or not. Lacking the vote to proceed, the item on the Agenda will be deferred to the next regular Meeting.
1.30.021 Emergency Meetings.
State law provides for two (2) levels of emergency meetings: an emergency meeting and a dire emergency meeting. At the beginning of either an emergency or a dire emergency meeting, a majority of attending members of the City Council shall confirm the nature of the emergency or dire emergency and the business which is to be transacted.
A. An emergency meeting of the City Council may be called to address a work stoppage, crippling activity, or other activity that severely impairs public health or safety No other business may be considered at such a meeting.
1. The emergency meeting may be called by the Mayor or three (3) members of the City Council by delivering written notice to each member of the Council, and to all members of the press who have requested notice of special meetings in writing.
2. The notice shall be delivered, received, and posted in a location that is freely accessible to members of the public at least 24-hours before the time of the meeting specified in the notice. The notice shall specify the time and place of the meeting and the business to be transacted or discussed.
B. A dire emergency meeting may be called in the event of a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity or other action that poses a peril so immediate and significant that requiring the City Council to provide one-hour notice before holding the meeting may endanger the public health, safety, or both.
1. The 24-hour notice requirement and the 24-hour posting requirement is waived for a dire emergency meeting. Instead, each local newspaper and radio or television station that has requested notice of special meetings shall be notified by the Mayor, or his/her designee, one hour prior to the meeting or at or near the time that the Mayor notified members of the City Council This notice shall be given by telephone and all telephone numbers provided in the most recent request of a newspaper or station for notification of special meetings shall be exhausted. In the event that telephone services are not functioning, this notice requirement is waived.
2. As soon as possible after the meeting, the Mayor, or his/her designee, shall notify newspapers, and radio and television stations that the dire emergency meeting was held, the reason for the meeting and any action taken at the meeting.
1.30.022 Reporting Requirements for Meetings of Regional and Other Agencies.
When one or more elected official(s) or other persons, acting as a representative of the City of Berkeley or any of its Legislative Bodies, attends a meeting sponsored by another agency or Legislative Bodies, such representative shall, within five (5) business days following the meeting, provide a written report to be placed on the Agenda of the Legislative Body to provide opportunity for comment by other members of the Legislative Body and the public. The report shall state the name of the group, the time, place, and purpose of the meeting, a summary of the discussion of any item that impacts the City of Berkeley, any action taken, and the votes of the Berkeley representative.
1.30.023 Special Community Engagement Process.
A. When any City Legislative Body, agency, department, or office is considering an action that would have significant citywide impact or lead to a change in citywide service levels, the Council shall initiate a Community Engagement Process Matters that have significant citywide impact include, but are not limited to, adoption of a General Plan or Area Plan, the annual budget, labor negotiations, citywide fees, measures under consideration for placement on the ballot, and major development and transportation changes. A Community Engagement Process shall include the following provisions.
1. The City Council shall determine whether the project or proposal will have a significant citywide impact that requires the implementation of the Community
Engagement Process.
2. Information regarding the issue shall be sent to a list, maintained by the City Clerk, of those who have chosen to receive such information and posted on the City’s website. E-mail notices shall also be distributed to the Mayor and City Council for distribution through their databases. Information shall also be sent by direct mail to those who subscribe to receive direct mail notice. Flyers shall be posted in community centers and libraries. Notice shall be advertised in at least one community newspaper as defined herein and shall be broadcast on the City television channel. Throughout the process, information shall be continually updated and provided to the public as described in this Ordinance.
3. The Legislative Body shall hold at least three (3) Meetings, one of which shall be a Community Meeting and at least two (2) which shall be public hearings
1.30.024 Audio or Video Recording and Broadcast of Meetings.
A. Meetings of all Legislative Bodies shall record their Meetings with an audio recorder. All recordings of Meetings of all Legislative Bodies shall be retained for five (5) years and be available to the public.
B. All regular and special Meetings of the City Council, Redevelopment Agency, Rent Stabilization Board, and Zoning Adjustments Board held in the venue regularly used shall be broadcast and video-streamed live and archived for replay on the local government cable channel and the internet. Such web broadcasts shall be captioned, with the captioned text displayed on the cable broadcast and as part of the video-stream. The City shall annually make a good faith effort to add Meetings of the Planning Commission, Board of Library Trustees, Housing Authority, Landmarks Preservation Commission, and Housing Advisory and Appeals Board to those Meetings that are cable broadcast and video-streamed. The requirement to cable broadcast and video-stream meetings shall not apply if necessary equipment breaks down and it is impossible to make repairs or replace equipment in time for a scheduled Meeting, or if a public Meeting usually held in the Council Chambers is changed to a location that does not have the technological capacity to accommodate the cable or web broadcast and captioning. Any permanent venue for City Council Meetings shall have the technological capacity to accommodate cable broadcast and captioning.
C. Any person attending a Meeting of a Legislative Body may record the proceedings with an audio or video recorder or a still or motion picture camera, or broadcast the proceedings, unless or until the body makes a finding that the recording creates noise, illumination, or obstruction of view that constitutes an unreasonable and persistent disruption of the proceedings.
1.30.025 Meeting Minutes.
The secretary of a Legislative Body shall prepare the minutes of each Meeting and Closed Session. The minutes shall state the date and place of the Meeting, the time the Meeting was called to order, the names of the members present at the time the Meeting was called to order, the names and times of arrival or departure of any member of the Legislative Body arriving or leaving the Meeting after the call to order and before adjournment, the names of presenters and staff who provided reports or comments, the names of other persons attending any Closed Session, Closed Session announcements, disclosures of any conflicts of interest and ex parte communications, a list of those members of the public who spoke on each matter, and their names if the speakers identified themselves, a brief summary of each person’s statement during the public comment period for each Agenda item, the vote by name of each member on each matter considered by the body at the Meeting, and the time the Meeting was adjourned. No later than seven (7) business days after a Meeting or Closed Session, the draft minutes of each Meeting or Closed Session shall be posted on the City's website and be available for inspection and copying upon request . The officially adopted minutes of a Meeting or Closed Session shall be available for inspection and copying upon request no later than seven (7) business days after the Meeting at which the minutes are adopted.
Article 2
Access to Public Records
Nothing in this Section shall be interpreted to hinder ordinary assistance to the public and informal communication between members of the public, City staff, and members of Legislative Bodies.
1.30.026 Training and Direction to City Staff.
A. The Custodian of Records shall designate in each of the City’s departments/offices a Records Coordinator, who shall have custody of the department’s/office’s records and provide information, including oral information, to the public.
B. The City Manager shall ensure that City Staff are trained and directed to timely and courteously respond to the public regarding their obligations under this Ordinance.
1.30.027 Posting of Information.
A. At a minimum, the following shall be posted on the City’s website and provided in written form in the City Clerk’s Office, and at the reference desk of each public library:
City Charter
Berkeley Municipal Code
Building Code
General Plan and Area Plans
Zoning Ordinance
Sunshine Ordinance
Citizen’s Guide to Public Information
Records Index
Records Retention Schedule
Council Rules of Procedure (when revised to comply with this Ordinance)
Commissioner’s Manual (when revised to comply with this Ordinance)
Conflict of Interest Code
Statements of Economic Interest
Appointment Calendars
Agendas and Minutes of the meetings of all legislative bodies
B. Each Legislative Body is encouraged to make publicly available on its portion of the City’s website as many public records as possible concerning its activities. At a minimum, within six (6) months after enactment of this Ordinance, all current Meeting Agendas and other documents required to be made public shall be posted on the website, and thereafter, reasonable efforts shall be made to post past materials. Notices, Agendas, and minutes of current Meetings shall be posted on the website no later than the time required for public posting by this Ordinance. Each Legislative Body shall make reasonable efforts to ensure that its portion of the City’s website is regularly reviewed for currency and updated on at least a weekly basis.
C. Notices posted on private property shall be visually prominent and written in a typeface that is readable from the public-right-of-way.
D. Notices shall:
1. Be written in easily understood language without undefined abbreviations or acronyms.
2. Give a full description of the subject including a statement of the most significant information regarding the subject applicable City ordinances and regulations, irrevocable consequences of taking action or non-action, meeting time and place the subject will be considered, timelines for public comment, and sources where further information may be obtained.
3. The Commission shall regularly review the content, placement and timing of public notices and advise City Staff and the City Council on ensuring that notices conform to the requirements and intent of this Ordinance.
4. The Commission shall work with City Staff, other Legislative Bodies, and the City Council to improve publicly accessible information databases on matters to ensure consistency, equity, timing, and extent of noticing, for Meetings and other matters of public interest.
1.30.028 Public Review File.
Any document relating to City business sent by or received by a member of a Legislative Body shall be part of a public review file, which shall be organized in chronological order. The public review file shall be maintained by a designated person for each Legislative Body and be accessible to any person during normal office hours. The City Clerk shall maintain a central registry of locations where public review files can be accessed.
1.30.029 Public Records Index .
A. The City shall maintain a Public Records Index that identifies the types of information and documents maintained by City departments, offices, including offices of elected officials, and Legislative Bodies. The Index shall be available to the general public, and shall be organized to permit a general understanding of the types of information maintained, by which officials and departments, for what purposes, for what periods of retention, and under what manner of organization, e.g. by reference to name, date, project or proceeding, or some other referencing system. The Index shall be sufficient to aid the public in making a focused and knowledgeable inquiry regarding public records. The Index shall be posted on the City’s website and shall be available in written form in the City Clerk’s office and at the reference desk in each of the City’s public libraries.
B. The Index shall classify each type of record as either: (1) “Open,” meaning accessible to the public without exception and subject to immediate disclosure; or (2) “Potentially Open,” meaning not entirely exempt from disclosure, but possibly containing some exempt content, such that review is required; or (3) “Closed,” meaning that disclosure of the document is prohibited by law. Each classification of a record type as Potentially Open or Closed shall specifically identify with the legal authority relied upon in assigning that classification.
C. The Custodian of Records shall be responsible for preparing and maintaining the Index. He or she shall report on the progress of developing the Index to the Sunshine Ordinance Review Commission on at least a quarterly basis until it is completed, which shall be no later than twelve (12) months from the enactment of this Ordinance. Each department, office, Legislative Body, and public official shall cooperate with the Custodian of Records regarding identification of the types of records maintained, including those documents created or received by the entity. Each department, office, Legislative Body, and public official is encouraged to solicit and encourage public participation to develop a meaningful Records Index.
D. A list of any change in the practices or procedures in the Index shall be noted on the City website and posted in the library for a period of three (3) months.
E. The Index shall be periodically reviewed by appropriate staff and the Sunshine Ordinance Review Commission for accuracy and completeness. Following review, it shall be presented by the Custodian of Records for formal approval to the City Council.
1.30.030 Records of Officials: Appointment Calendars; Statements of Economic Interests .
A. All documents prepared, received, or maintained by any elected or appointed City official, while in office, and by every department head connected with City business are the property of the City, and the originals of these documents shall be maintained consistent with the Records Retention Ordinance. These officials shall maintain in a professional and businesslike manner all documents, and shall disclose all such records in accordance with this Ordinance.
B. A calendar shall be maintained by all elected officials, the City Manager, Library Director and Trustees, Rent Stabilization Program Director, and all department heads, listing by date, place, and time all City-related meetings and telecommunicating or video conferences that they attend. Such calendars shall be public records subject to disclosure hereunder, except for those parts, if any, specifically exempted under applicable law, and shall be posted to the City’s website prior to the close of business each week.
C. No later than April 15th of each year, the City Clerk shall post Statements of Economic Interest forms on the City’s website. Upon the effective date of this Ordinance, the City Clerk shall also post all prior Statements of Economic Interest forms of sitting elected officials, the City Manager, City Attorney, Rent Stabilization Program Director, Durectir if Planning, Planning Commissioners, members of the Zoning Adjustments Board, and members of the Housing Authority retroactive to the beginning of their service.
1.30.031 Contributions to the City.
Any gift of funds, goods or services worth more than one hundred dollars ($100.00) in aggregate which may be accepted or collected by the City, or any of its functionaries, or Legislative Bodies, for the purpose of carrying out or assisting any City function shall be disclosed and approved on the Agenda of a regular Meeting of the City Council.
1.30.032 Reports of Lobbying.
A. Any City Lobbyist shall file a quarterly report with the City Clerk, which shall be a public record. Each quarterly report shall identify all financial expenditures by the Lobbyist, the recipient of each expenditure, the date of the expenditure, and the local, regional, state, or national legislative or administrative action that the Lobbyist supported or opposed in making the expenditure. The failure to file a quarterly report with the required disclosures shall be cause for termination of the contract for representation.
1. The City Clerk shall post on the City’s website a direct link to the disclosure forms that the City’s Lobbyists file with the appropriate federal and/or state agencies.
B. Special Interest Lobbyists shall file a report with the City Clerk specifying the general nature of the City-related issues on which they have been engaged: the dates, places, and names of the members of the Legislative Body they have contacted: and the direct and indirect compensation received from their clients for such matters, which shall include but not be limited to fundraising activities conducted on behalf of elected City officials, contributions to persons and organizations, and payments received for services as a consultant to any City Legislative Body. No person who qualifies as a Special Interest Lobbyist shall contact any elected official of the City without first registering with the City Clerk and complying with the disclosure requirements of this Section. The City Council may establish a registration fee.
1.30. 033 Types of Information Accessible by the Public.
A. It is the intent of the Sunshine Ordinance to provide for the disclosure, upon request, of all public records to the maximum extent permitted by state law and, wherever permitted, to waive the City’s right under state law to withhold disclosure in certain circumstances. Accordingly, disclosure shall be made in all cases where not specifically forbidden by state law, including but not limited to the following:
1. Drafts and memoranda:
Memoranda or written communications between City employees, and/or consultants, and/or elected or appointed officials, or drafts thereof, whether in printed or electronic form, shall be subject to disclosure at the time a final recommendation is delivered. Draft versions of an agreement being negotiated by representatives of the City with third parties need not be disclosed immediately upon creation, but must be preserved and made available for public review beginning ten (10) days prior to the presentation of the agreement for approval by a Legislative Body.
2. Litigation records and attorney-client communications:
a. Attorney-client communications and communications regarding the settlement of claims by or against the City shall not be subject to disclosure to the extent that they are protected from disclosure by California law. Other communications relating to the subject matter of such communications, but which are not themselves protected by California law, are public records subject to disclosure under this Ordinance, including without limitation pre-litigation claims against the City, records received or created by a department in the ordinary course of business that were not subject to the attorney-client privilege at the time of their creation, and amounts paid by or to third parties or to attorneys in connection with claims by or against the City. When litigation involving the City is finally adjudicated or otherwise settled, the text and terms of any settlement s
