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Mayor Ignores Latest Brown Act Violations; Berkeley Councilman on Free Radio Sunday
Several weeks ago, I sent the following letter to Mayor Ryan Coonerty demanding the Council rehear various items passed without the required public comment period (in spite of specific requests from the public to speak). On my Sunday radio show tomorrow (6-1) around noon (101.1 FM), Berkeley City Councilmember Kriss Worthington will be calling in for a second time to discuss new legislation to open up Council meetings to the public in Berkeley.
Dear Mayor Coonerty,
I formally request that you correct Brown Act violations that occurred at the April 9, 2008 and May 13th meetings during the Afternoon Session of each meeting.
April 9th Brown Act Violations
Specifically on Consent Agenda Items # Items 1,2,3, 5, 6, 13, 14, 15, and 18, you declined to have these items pulled from the agenda for discussion. The two minute period of time you allowed the public to request items be pulled and/or “discuss” these items clearly would not allow any meaningful comment on the individual items as required by Section 54954(a) of the Government Code (the Brown Act).
This provision allows the public to address you on any item in the agency's jurisdiction not addressed by the agency at an earlier open meeting. Allowing a person a 10 second period to address an item does not constitute a real opportunity to address an item. I formally demand that action on these items be nullified and the items be reheard to allow for the legally-required public comment. I also demand you rescind your new public comment-constricting rules and return to the traditional system universally used in California allowing members of the public to pull items from the agenda for discussion and not reserve that privilege to Council members.
Since you and the staff set the agenda and decide which items go on the Consent Agenda, you are putting yourself in a position of deciding in advance which items will be allowed meaningful public comment, and which will not. Neither you nor any other council member has the right to do this.
Item #8, which I requested be allowed public discussion, was differentially pulled for public discussion by Councilmember Porter, using the novel and inaccurate claim that he regularly pulled items which involved more than $1 million.
Though more than 5 people wanted to speak on item #18, you declined to have it removed for individual discussion and staff comment—denying me the opportunity to speak on it (though other members of the public, whose focus was only on this item, did get the chance to do so).
We can not know in advance which items you or other Council members will allow us to speak on. Hence we must contract all our comments on the entire Consent Agenda (which can have more than 30 items) into a total of two minutes. This absurd requirement makes any meaningful comment on more than one or two items impossible
I demanded correction of Brown Act violations in the March 25th Council meeting in my letter of to you of March 27th which you have neither acknowledged or answered. In your new rules—declared by fiat without Council vote or public discussion when you became Mayor in November last year-- you gave Council members the sole power to remove items from the Consent agenda for public discussion and Council vote. This procedure contracts public comment differentially, depending on whether the Council looks favorably on a particular speaker or topic.
In so doing it also violates Section 54954(c) which reads "The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or the acts or omissions of the legislative body." Allowing Council members to pick and choose who can speak and who can't on items of public interest denies critics any meaningful chance to speak at all and allows Council supporters longer periods of time for comment.
I raised this issue in the March 27th letter, but you have not seen fit to respond to it. I also raised a series of other concerns in that letter, including your illegal procedure of pressuring or requiring speakers at the Oral Communications period who have spoken at the last meeting to defer to new speakers. This procedure penalizes whistleblowers and critics, actually allowing them to be censored completely by flooding the line with “new” speakers sympathetic to Council concerns. First come, first serve is the legal procedure according to the California First Amendment Coalition.
May 14th Brown Act Violations
Specifically on Consent Agenda Items # Items 2 through 16, I requested time to speak on each of these items. Instead of allowing adequate time, as virtually every other legislative body in California does that follows the Brown Act, you declined to allow public speaking time on any of these items—with the exception of item #10. That item was pulled off the agenda because Councilmember Mike Rotkin wanted to speak on it personally.
Instead you insisted that a two-minute period was adequate time for me and other members of the public to address 14 separate items, one of them involving a cost overrun of $500,000 for a company (Camp, Dresser, and McKee) notorious for its war profiteering in Iraq and Afghanistan. Two other members of the public, Marilyn Garrett and Michael Tomasi also expressed outrage at your behavior.
Councilmember Madrigal expressed serious concern about your unilaterally initiated policy which defies the Brown Act and clashes with procedures down in all adjoining counties and at our own Board of Supervisors.
In order to dramatize the fact that a member of the public could not speak on the agenda items under your novel and illegal “2 minute scheme”, I divided my time equally among each item, which gave me about 5-7 seconds for each item. This was clearly not enough time to allow anything meaningful to be said on any item. I formally demand you rehear every item and allow members of the public the fair speaking time which the Brown Act guarantees them.
Additionally, during the Oral Communications period, you refused to grant Human Rights Organization spokesperson the 4 minutes, which you have regularly given to other organizations without exception when requested. Instead, you insisted that such time would only be provided if other members of the community were not speaking. Hence, he came to the Council meeting, not assured he would have the time given every other organization. Your e-mail discussion with him and with me is included in this complaint to document your clear intentions and policy in this matter.
I demand you correct this violation by promulgating and following fair rules that allow equal speaking time for all organizations without fear or favor. I remind you that this time under all previous mayors was five minutes, not four. And the time for individual speakers was three minutes not two—as you now require.
Your responsibility is to allow the public adequate speaking time—not to pick and choose which favored individuals or organizations will be allowed to speak if their initial presentation pleases you or another Council member. The Brown Act is not for the pleasure and power of the Council, but to preserve the rights of the public. As a “constitutional lawyer”, one would think you'd be aware of this obvious fact.
Other Concerns at the April 9th and April 23rd meetings
I also bring to your attention your return to the discredited and illegal procedures used by former Mayor Kennedy involving cumulative “warnings” about “disruptive” behavior—which you and Vice-Mayor Mathews announced at the April 9th and April 23rd Council meetings. You and Mathews stated that if three warnings from the chair were given over any number of meetings, you would exclude the warned member from the meeting. If behavior is disruptive at a particular meeting, it is disruptive—for that meeting and that meeting alone. You cannot accumulate warnings from meeting to meeting as though you were a schoolmaster chalking up demerits for misbehaving students. Again I suggest, as a Constitutional lawyer, you seek advice from the California First Amendment Coalition.
You certainly have the right to advise people you consider their behavior disruptive. If you may not threaten or move to expel them from the meeting for behavior that is not disruptive, but merely dissenting and does not really block the business of the meeting. If you do you are violating their right to be present (guaranteed under section 54953 (a) of the Brown Act), speak (54954(a) and criticize (54954(c)).
To reiterate: Correct the Brown Act violations mentioned above by (a) eliminating these illegal and repressive processes in future meetings, and (b) rehearing the Consent Agenda which the public requested be removed from the agenda for public discussion which you refused to remove. Until such time as you do that, all actions taken should be regarded as null and void.
In not responding to these concerns, I believe your are continuing a pattern of repression and disregard for constitutional and legal protections guaranteed the community—which are also the subject of a current lawsuit in federal court (around an earlier mayor's attempt to punish non disruptive dissent by arresting a member of the public).
Please acknowledge receipt of this demand and indicate what course of action you intend to take ASAP, so the community can be spared the delay and expense of possible litigation here--as well as a repetition of these violations at a future meeting.
cc: Santa Cruz Sentinel, Santa Cruz Metro, Santa Cruz Grand Jury, District Attorney Bob Lee, San Jose Mercury News, Peter Scheer, First Amendment Foundation, Good Times, Mid-County Post, City on a Hill Press
Coonerty has refused to respond either verbally or in writing to these or a previous Brown Act letter (see http://www.indybay.org/newsitems/2008/03/26/18488814.php?show_comments=1#18488816)
Former Mayors have taken similar stands: http://www.indybay.org/newsitems/2007/04/07/18391438.php