Under state law, ballot descriptions must be accurate and impartial. But on May 29, 2012 the Berkeley City Council ignored all public comment on their proposed ballot language for the sunshine ordinance and passed the following language:
CITY OF BERKELEY INITIATIVE ORDINANCE
Shall an ordinance be adopted: enacting new agenda and meetings requirements for the City Council, the Rent Stabilization Board and all 30+ City Commissions, including earlier agenda deadlines and limits on their ability to respond to time-sensitive issues; increasing disclosure requirements for public records; and creating a new commission with authority to sue the City,
Financial Implications: The annual cost of compliance, although uncertain, is estimated to be $1.5 million.
The above language is neither accurate nor impartial. It describes the alleged limits on the City's ability to respond to time sensitive issues inaccurately and it uses questionable numbers to calculate the “estimated annual cost” of the proposal.
The Sunshine Initiative provides that existing state laws shall govern in time-sensitive situations, and the city would continue to be empowered to call emergency meetings to deal with urgent situations that come up unexpectedly.
There may be “time sensitive” matters which are not emergencies, but which come to light after the current eleven day posting deadline, and which require immediate action. The Sunshine initiative would allow the Mayor or any three council-persons to add those to the agenda, subject to the 72-hours advance notice required by the Brown Act. This is hardly a “limit on their ability to respond”, as stated in the City Attorney's proposed language.
The City Attorney alleges “annual costs” of $1,500,000. The city has presented two spread-sheets calculating the projected costs associated with implementing the ordinance. Both documents were created before Berkeley adopted its “Open Government Ordinance”, which includes many of the same added expenses created by the proposed Sunshine Ordinance. The first study pegged costs at $2,915,973.63, of which $1.3 million was allocated to the costs of paper and copying on the bizarre assumption that the City would be required to provide everyone from the public who attends a meeting with hard copies of reams of material. Another $400,000 was assumed for new closed captioning and video services that are recommended but not required by the initiative.
When these mistakes were pointed out to staff, a second study was produced. This time the costs were $2 million; instead of loading up on non-existent copying costs, the study relies on increased payroll. The new study claims that the city would need to hire more than 13 new people to comply with the Sunshine ordinance at a total cost of $1,225,727.
Under the proposed Sunshine Ordinance, ordinary residents would be allowed to add items to the Council agenda through a petition process. The city claims that this would require three new full-time employees to compile 19 additional agendas each year at a cost of $338,317. That’s $17,806 per agenda. Staff claims that a fourth employee earning $128,295 would be needed to analyze these citizen proposals. The documents don’t show how many citizen-generated items are estimated in their figures in order to justify such a staggering increase in the Clerk's annual payroll.
In fact, there should be relatively few cases where any matter of general interest to the public will not also be of interest to at least one council-person. If no council members are interested, there is nothing that prevents these items from being scheduled and disposed of — with no staff analysis — at a single meeting.
The city claims it will need to hire the equivalent of 3.5 new full-time workers to take “detailed summary minutes” — at the cost of $179,251 per year — and for an “attorney or parliamentarian” — at $163,769 per year — to handle procedural issues raised by the public at commission meetings. There are no such requirements in the initiative. Minutes would essentially be taken the same way they are now, with the only arguable change being the addition of the names of public speakers and “a brief summary' of public comment.
Then there is the $286,477 allocated to hire on two workers who would supposedly work solely to adopt the tech provisions of the ordinance that relate to proprietary formats, cross-streaming, and formatting the city’s Web site. But most of these requirements in Sunshine are also requirements of Berkeley's Open Government Ordinance, which was passed after the study was completed.
These examples demonstrate the primary flaw in the City's studies: the test is how much additional expenses will be incurred by the city after it subtracts all of the savings the city will see by the passage of Sunshine. Instead, the city has ignored the costs it has already committed in extended deadlines for posting the agenda, video/audio streaming, computer modernization, and its new commission to hear complaints. These costs cannot be attributed to Sunshine, and the city hasn’t even made an attempt to look at the money the city would save by passing the ordinance.
In addition to the $1.2 million in basic labor costs, the second study alleges an additional $450,000 in outside lawyers that the city anticipates it would need to hire in cases where the Sunshine Commission requires independent advice. This could happen when, and if, the Council exercises its power to overrule a decision by the Commission, but the item is entirely speculative: indeed the estimate in the first staff study was $24 to $90 thousand. There is simply no way to predict the likelihood that the Council would be at loggerheads with its own appointees.
The Council should have recognized the proposed language for what it is: an improper attempt to discredit the Sunshine Initiative, rather than to give honest information to the voters.
Appropriate language would be the following:
BERKELEY SUNSHINE ORDINANCE INITIATIVE
Shall a Sunshine ordinance be adopted enacting new agenda and meeting requirements for the City Council, the Rent Stabilization Board and all City Commissions, increasing disclosure requirements for public records, and creating a new Commission with authority to enforce this ordinance if its provisions are not being followed. It is not possible at this time to estimate the incremental costs or savings, if any, of this proposal.