EXPARTE BERKELEY

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City Votes to Amend Rules on Public Communication
Council Members Claim Ex Parte Rules Violate Free Speech, Will Vote Again in June
Sam Schramski The Daily Californian Thursday, April 22, 2004

Despite two failed attempts to reform them in the past, Berkeley's long-standing ex parte rules, which bar council members from discussing permits or judicial matters with the public, may soon change, after the council voted to adjust them at Tuesday night's meeting.

Grumbling that the rules violate free speech and favor special interests, five out of nine council members voted to change the current ex parte rules. City Manager Phil Kamlarz has asked the City Council to provide him with further guidance on how to better regulate ex parte rules, and the issue will be voted on in June.
According to the city's rules on ex parte communications, when a permit for development or other "quasi-judicial matters" is under consideration by the council, council members cannot talk to members of the public, read their e-mails or listen to their phone messages on the issue.

Currently, the public comments directed to council members must be submitted in written form and shared with the other members of the council. The rule was put in place in 1985 to protect the city from lawsuits filed by individuals claiming that their due process rights were violated. They claimed council members might have been biased in their votes on development projects because of the extra information.

However, last December, the Mayor's Task Force on Permitting and Development asked the City Council to give guidance to the city attorney on how to change the rules, because of the difficulties involved in enforcing them.

Supporters of the reform, including Mayor Tom Bates and Councilmembers Kriss Worthington, Linda Maio, Margaret Breland and Dona Spring, hope that it will improve communications between councilmembers and the public. Many Berkeley citizens who attended the meeting said they faced frustration for several years because they were unable to directly discuss their concerns on development issues once the plans reached the hearing phases.

UC Berkeley graduate student Andy Katz, a member of the city's Zoning Adjustments Board, said the rules are so restrictive that he couldn't even listen to his answering machine without violating the rule.
"It's a rule that's blatantly not being followed," said Worthington. "It would be great if it were followed. But it's not and there is no need for it."

Councilmembers Miriam Hawley and Betty Olds said that they feared the city would be vulnerable to lawsuits if the safeguards provided by the ex parte rules were struck down. One alternative proposed by the city is a provision that calls for council members to disclose their communications prior to hearings.

Another alternative, proposed by the task force in December, suggested that council members record the names of people they talked to and the dates they communicated with them, but not the content.

If the City Council votes in June to amend the ex parte rules, then Berkeley would be joining neighboring cities on the issue, including San Francisco, which operates on "good faith" among involved parties, and Oakland, which has no restrictions.

 

READ: ZAB instructions on Ex Parte Communication Disclosures

In the context of adjudicative matters that come before the ZAB, ex parte communications are those which occur outside the formal hearing process. ZAB members should avoid ex-parte contacts on matters pending before the ZAB as much as possible, as they may represent, or be perceived to represent, the receipt of evidence that can unfairly influence a Board member’s decision on a matter before the Board. If such contacts do occur, they must be placed in the record and disclosed to all interested parties sufficiently in advance of the decision to allow rebuttal.

 

Exparte Berkeley "Comics"

Note: The comic strip was captured from images recorded for TV during this regular meeting of the Berkeley City Council (June 20, 2006). The individual referenced by each councilmember is ex Assembly woman Dion Aroner, who is currently employed by Pacific Steel Casting as a consultant. This same routine with Ms. Aroner was also played out at Berkeley's Zoning Adjustments Board on May 11, 2006.

Gordon Wozniak
Linda Maio
Max Anderson
Laurie Capitelli
Dona Spring
Kriss Worthington
Betty Olds
June 20, 2006
Pacific Steel Casting
Use Permit Appeal
Tom Bates
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