Ahh, open government. It’s a cause dear to my heart. And if you listen to speeches and answers at debates by politicians during campaign season, it is tremendously important to almost all of them as well.
But when it comes to putting sunshine into practice, most elected officials turn out to treat our many open government rules more of an annoyance than anything else.
Open government in Oakland
Oakland’s open government laws include things like the Campaign Reform Act and the Lobbyist Registration Act, which is currently in the process of being amended. (For background on the proposed amendments, see the recent action alerts from the League of Women Voters and Make Oakland Better Now. The Council was scheduled to consider changes to the ordinance at Tuesday’s meeting, but the item was pulled last week at Rules Committee.)
Another one of these laws is Oakland’s Sunshine Ordinance, which is designed to ensure adequate public notice of Council meetings. In short, it mandates that 10 days before the City Council has a meeting, they have to publish an agenda of that meeting that lists everything they will be voting on, along with any reports providing background information about those items so that the public has time to review them and offer informed comment about issues that may affect them before the vote. Doesn’t sound too crazy, right?
Of course, sometimes things happen that we can’t predict, and the Council needs to act more quickly than 10 days in the future. The law recognizes this, and makes a provision for when things need to be scheduled on short notice. When this happens, the Council has to vote to say that the item is urgent. Here’s how the Sunshine Ordinance (PDF) determines whether a matter is urgent:
Action On Items Not Appearing On The Agenda. Notwithstanding subsection (D) of this section, a local body may take action on items not appearing on a posted agenda only if:
The Matter Is An Emergency. Upon a determination by a majority vote of the local body that a work stoppage, crippling disaster or other activity exists which severely impairs public health, safety or both; or
The Matter Is Urgent. Upon a determination by a two-thirds vote by the members of the local body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those present, that there is a need to take immediate action which came to the attention of the local body after the agenda was posted, and that the need to take immediate action:
(a) is required to avoid a substantial adverse impact that would occur if the action were deferred to a subsequent special or regular meeting;
(b) relates to federal or state legislation; or
(c) relates to a purely ceremonial or commendatory action.
The emphasis there is mine. So there are two things that need to be true for a matter to be considered urgent under the Sunshine Ordinance. One, something needs to have happened after the agenda was posted that we couldn’t have known before the deadline. Two, it has to meet one of the qualifications listed in a, b, or c. Note the “and.”
So. That’s what the law says. You might imagine, after reading that, that urgency findings are super rare. How often is new information requiring immediate action by the Council coming up before meetings, right?
In practice, urgency findings are not rare at all. The Council does them all the time. Things come up and the urgency is usually something like the Council has to act immediately so we can meet some kind of deadline. Presumably, these deadlines are not being announced with less than 10 days notice, but of course nobody wants the City to miss out on a grant opportunity because they can’t schedule items on time, so these things always get approved. I haven’t done an actual count or anything to compare, but just from casual observation it seems like nobody even asks what the urgency is like a third of the time.
Libby Schaaf stands up for sunshine
So it’s been a delightful change of pace in the last couple months to see a Councilmember finally taking the Sunshine Ordinance’s noticing requirements seriously.
Most of you probably recall a rather high profile incidence of this from last month, when the Council was scheduled to vote on scheduling a special election to put the Mayor’s parcel tax on the ballot.
When the special election came up, At-large Councilmember Rebecca Kaplan moved the urgency finding almost before the Clerk had finished reading the item title “on the grounds that we learned after the 10 day period that the statewide special that was planned for June was not and that therefore we must act with great haste in order to have a election in time for the County’s deadline for the property tax and that therefore we did not have additional time to schedule this item.”
Councilmembers Brooks, De la Fuente, and Schaaf voted no on the urgency, which meant that the Council was not able to vote on scheduling a special election that night. (The Mayor could have still scheduled a vote on the special election in time for the deadline, but bungled the noticing of the meeting again.)
Of course, everyone had known perfectly well that a State special election in June looked unlikely, and the Council had previously talked about the possibility of their own mail-in special election. After public comment and a bunch of bickering, District 4 Councilmember Libby Schaaf gave a great speech defending the noticing requirements of the Sunshine Ordinance.
The City has rules about open government and providing adequate notice to the public. And the vote that we took tonight was whether or not this item qualified for an exception for the 10 day noticing requirement. And the issue is whether or not it’s urgent and whether or not information came to the knowledge of the body after the deadline for the publication of the agenda.
And I just want to explain that my vote on the urgency has nothing to do with the parcel tax, because that is not how we’re supposed to do this. But we discussed the option of a mail-in ballot. We have always had the knowledge that there may not be a state election in June. And so it’s my contention that we had knowledge of the possibility of having a mail-in election more than 10 days ago. And so for that reason, I do not feel like hearing this item tonight complies with Oakland’s Sunshine Ordinance.
So that is the vote that we just took. We did not take a vote on whether or not we support a parcel tax or not. So just to clarify, cause I’m sure it was very confusing.
So if you don’t want that many of these meetings, that little speech might not seem particularly remarkable to you. But really, it is. Aside from my obvious delight to see a Councilmember actually care what the Sunshine Ordinance says, I was also delighted because it is an unbelievably rare occurrence to see anyone on the Council act like they care in the least whether or not the public understands what they’re doing at meetings. So it was so refreshing, while other Councilmembers were sitting around ranting about the “tyranny of the minority” to see Schaaf take the time out to stop and make sure the public knew what was going on. (Video of the whole discussion is available here.)
Now, of course, not everyone was as thrilled with that stand for sunshine as I was, and a lot of people who want that tax dismissed Schaaf’s statement, saying that she was just using the Sunshine Ordinance as an excuse to block the election.
And if this were the only time Schaaf had defended transparency and open government laws, I might be able to see that argument. But that isn’t the case at all. In her brief four months on the Council, Schaaf has been consistently supportive of sunshine and transparency. District 1 Councilmember Jane Brunner’s proposal to gut Oakland’s lobbying restrictions would have gone to the Council in early March without any question if Schaaf hadn’t stood up for transparency.
And it isn’t just high profile items like the special election where she takes urgency findings seriously. Just last week, at Rules Committee, Schaaf refused to support an urgency finding on appointments the Mayor wanted to make to a City board. (The urgency provided by the Mayor’s office was that the Mayor was too busy to interview the candidates before the deadline — clearly not one of the exceptions covered by the Sunshine Ordinance.)
I have to vote no on this. Because it just sounds like we didn’t have our act together.
To give you an idea of just how radical a change this is on the City Council, compare Schaaf’s attitude towards sunshine and proper noticing to that of the office’s previous occupant, who frequently dismisses sunshine laws as “technicalities.” In the clip below from a year ago, then-District 4 Councilmember Jean Quan argues for an entire minute and a half with the City Attorney about whether they’re going to discuss something in violation of the open meetings law (this was a totally unambiguous case).
I hope the rest of the Council will be inspired by Schaaf’s commitment to transparency and start treating sunshine laws as important, rather than an afterthought. Until then, one strong voice for open government is better than none.