Public Comment

After two years of work, an independent citizens’ group has submitted a cutting-edge, open-government ordinance to the City Council for its consideration. The Citizens’ Sunshine Ordinance, if adopted by the council in its entirety, would shed real sunshine on city business. All city records, except for those otherwise protected by law, would be made available to the public in a timely way. There would be sufficient time before legislative bodies met for citizens to obtain and review records related to agenda items. Most significantly, this ordinance, unlike any other passed so far in California, would have an independent body to enforce its provisions. Now, it’s up to the City Council to take the bold step of adopting such a progressive ordinance without weakening its provisions. 

Approximately two years ago, the City Council held an open workshop to discuss the city attorney’s draft Sunshine Ordinance. The League of Women Voters, the Amercian Civil Liberties Union (ACLU), Californian’s Aware, the Society of Professional Journalists, and Berkeleyans Organizing for Library Defense (SuperBOLD) were invited to participate in the discussion. At the conclusion of the workshop, the City Council asked the League of Women Voters to put together a group of citizens to review and rewrite the draft. The League invited all citizens to attend a meeting at its office to discuss the issue. The Citizens’ Sunshine Committee was formed at this meeting. 

The Citizens’ Sunshine Ordinance is the product of two years of work by this independent citizens’ group. This group has been, and still is, open to the public. We studied similar ordinances from San Francisco, Oakland, and San Jose, as well as the Berkeley city attorney’s draft ordinance. Then, we adopted their best provisions and added more, where we found them lacking. We also consulted with the First Amendment Coalition, Californians Aware, and other attorneys. 

Specific procedures for compliance and enforceability are key differences between our ordinance and any other found in the United States. Our ordinance will put Berkeley on the cutting edge of progressive legislation, if it is not watered down for political purposes. 

Some of the features of the Citizens’ Sunshine Ordinance are: 

• It removes vague and confusing language and procedures that are in the city Aattorney’s draft. It empowers the citizens of Berkeley to become involved in their city government by clarifying procedures for public comment and noticing of public meetings.  

• It details procedures for meetings, record keeping, and enforcement, so everyone knows the rules and has the same information as decision makers and that this information is made available well in advance of decisions being made. 

• It provides clear timelines and specifies exceptions for emergency situations.  

• It details how legislative action can be rescinded when violations occur and what remedies are available.  

• Most important is that the Citizens’ Sunshine Ordinance creates means of enforcement that are quick and practical, without taking away the right to judicial review. This makes Sunshine work. 

The procedures to be followed by the legislative bodies and city staff are spelled out so that all parties know what is required of them. This should reduce the cost of government and offset any cost of implementing the Sunshine Ordinance. When everyone knows the rules and procedures, they can be enforced without lawsuits. Under the status quo, far too much is spent by the city in defending itself against citizen lawsuits. Our ordinance allows for the settlement of any dispute at the local level, rather than having to go to Superior Court. 

San Francisco, Oakland, Benicia, Riverside, Vallejo, Gilroy, Milpitas, and Contra Costa County have all adopted Sunshine Ordinances. San Jose has been working on its ordinance for more than two years. All of these ordinances have one large problem: none have an independent enforcement provision. This means that those who are supposed to enforce sunshine are the same people who are violating the law—a conflict of interest to say the least. For this reason, San Francisco is considering whether to go back to the voters to enact an independent enforcement provision, not unlike ours. 

Another problem is that existing Sunshine Ordinances do not contain enough detail for a clear understanding by citizens; thus, citizens have a difficult time understanding how to be heard by legislative bodies or city staff, or how they may obtain documents that are critical for debating the issues. Our Sunshine Ordinance addresses this, providing, for example, that the city may no longer refuse to produce the critical intra-staff memos that are often the basis for council decisions. 

A primary consideration is whether any proposed ordinance will allow for an independent enforcement provision. Without this provision, Sunshine becomes just another piece of legislation that looks and feels good, but can be ignored. If real, independent enforcement is not part of Sunshine, then there is no guarantee that the workings government will be open and transparent. The strength of our Sunshine Ordinance lies within its enforcement provisions.  

We recognize that our draft compromises many important issues; some think it goes to far, and others think that it does not go far enough. That is why we want that the City Council and staff to work with us to reach a consensus without destroying the basic purpose of the ordinance, which is to have as strong a sunshine ordinance as possible. If we work together, we can come up with the first effective, practical, and enforceable Sunshine Ordinance in the State of California. 

Our Sunshine Ordinance can be viewed at berkeleysunshine.org 

We invite members of the public to contact us with comments or to invite us to speak to any community groups. Contact us at info@berkeleysunshine.org. 

Dean Metzger is a member of the Citizens’ Sunshine Ordinance Committee.