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For three and a half months, Oakland’s City Council has operated under emergency rules that, according to good government groups, limit the public’s ability to access city records and weigh in on policy issues. A shift to virtual meetings held through Zoom, they say, has curtailed public input and made it easier for anonymous people to “bomb” the council meetings with disruptive hate speech.
The situation has gotten so bad that some groups are now calling on the Council and city administrator to reverse the emergency rules, which were put in place as a safety measure during the coronavirus pandemic.
“The emergency is still horribly real in terms of public health,” said Gail Wallace, the Oakland League of Women Voters vice president of action, about the pandemic. “But considering that we’ve got an uninterrupted timeline going out indefinitely, we’re feeling that it’s time to look again and see how close we can get back to the usual procedures.”
One of Wallace’s biggest concerns relates to the amount of time the public now has to access information like city staff reports, legislation, and budget documents before council meetings. She was alarmed when on June 23, at a special City Council meeting, with less than 24 hours notice, councilmembers Noel Gallo, Lynette Gibson McElhaney, Larry Reid, and Loren Taylor proposed and eventually approved, with Council President Rebecca Kaplan’s support, millions in cuts to city departments and programs as part of the midcycle budget amendments.
Under the city’s normal rules, all documents to be presented and considered during a special council meeting (those held on days other than the first and third Tuesdays of each month at 5:30 p.m.) must be uploaded to the city’s website 48 hours before the meeting. But on March 23, interim City Administrator Steven Falk issued an emergency order that suspended the Sunshine Ordinance, Oakland’s open meetings law that includes this 48-hour requirement. As a result, the City Council no longer has firm deadlines for uploading documents.
“In suspending The Sunshine Ordinance, what they have done, most importantly, is reduced the amount of notice that the public gets of what’s going to happen at City Council meetings,” said Wallace.
During the City Council meeting on May 12, the Council voted to accept an interim rule proposed by councilmembers Taylor and Kaplan that requires them to strive to follow the Sunshine Ordinance’s deadlines “to the extent reasonably feasible.”
Mary Bergan, the League of Women Voters legislative analyst, said this is vague and unenforceable.
“It’s problematic because it’s in the eye of the beholder,” she said, adding that it’s difficult to determine whether a city official is doing their best to meet a deadline to make agenda materials available to the public. “You kind of have to take people’s word for it.”
Reverting to a weaker state law
The League of Women Voters helped develop the Oakland Sunshine Ordinance, which the City Council adopted in 1997. The ordinance builds on the Ralph M. Brown Act, the state’s open meetings law that was first adopted in 1953. Oakland’s Sunshine Ordinance goes far beyond the state open meetings law by ensuring that the public is notified about regular council meetings 10 days in advance and special meetings 48 hours in advance, and that all agenda materials be made public within these time frames.
When interim City Administrator Steven Falk suspended Oakland’s Sunshine Ordinance in March, the Ralph M. Brown Act became the law governing Oakland’s transparency and public participation requirements. The Sunshine Ordinance will remain suspended until the local state of emergency ends or the current City Administrator, Ed Reiskin, rescinds the emergency order.
The Oaklandside asked Reiskin if he planned to rescind the emergency order, but he did not respond.
The Brown Act only requires that the public be given three days notice for regular meetings and 24 hours notice for a special meeting. It places no limits on when legislative documents must be made available to the public, as long as they are made available before the meeting.
Naomi Schiff, who has been participating in City Council meetings since the late 1970s, said the lack of a deadline is unfair and it’s unclear why the Council is not distributing materials in advance.
“There’s not an inherent connection between having the meetings online and making the material unavailable 24 hours in advance,” she said.
Both Schiff and local League of Women Voters leaders said they have recently contacted councilmembers asking them to reinstate the Sunshine Ordinance and change their interim rules and procedures. Schiff has also filed a public ethics complaint alleging the councilmembers improperly voted on budget amendments on June 23 without having provided agenda materials in advance.
Curtailing public comments
Good government advocates are also calling on the Council to change the way public comments are handled during virtual meetings.
Under the council’s emergency rules, public speakers are all heard at the beginning of meetings, before staff presentations on specific items, and before councilmembers debate a proposal’s pros and cons. At the end of the meeting, often after the council has already voted, the public is allowed to weigh in again. The process is a departure from previous rules, in which members of the city administration or councilmembers would make a presentation about a specific item on the agenda and then the public could directly comment before each vote.
“We can’t engage or be conversant about the different agenda items,” said East Oakland resident John Jones III, who is the director of community and political engagement for the nonprofit Just Cities. “We have no way of rebutting any information that [city officials] share. We can’t weigh in on it. We can’t chime in on it. We can’t vet it.”
There were over a hundred people calling for the City Council to make deep cuts to the Oakland Police Department during the City Council meeting on May 23. But Schiff said these public participants had no ability to respond to the specific budget adjustments proposed by councilmembers Gallo, McElhaney, Reid and Taylor, cuts that fell far short of what most speakers requested.
There was also no way for the public to understand the councilmember’s budget proposal because it was not shared 24 hours before the meeting. The three councilmembers who didn’t vote for the budget, Nikki Fortunato Bas, Dan Kalb, and Sheng Thao, all said during the meeting that they also had insufficient time to review their colleagues’ proposal because it wasn’t distributed to them.
There have also been several recent instances of homophobic, anti-Black, and antisemitic speech during the public comment portion of the virtual council meetings.
“If you lump all of the speakers at the beginning then you have the intruders swimming in a large pool and that makes it harder to find them,” said Schiff.
The new interim rules and procedures also limit the total time the public can speak. While in the past, speakers could address multiple agenda items and use up to five minutes, recent Council meetings have limited speakers to only one minute.
“Having public comments be only one minute with no ability to expand on that makes it impossible for community advocates and community members to get across their messaging clearly,” said Talya Husbands-Hankin, a long term Oakland resident and the founder of Love & Justice in The Streets, a group that organizes with people experiencing homelessness.
In the past, if a group of people all wished to communicate a similar message, they could select one person or a few people to speak on the group’s behalf. The designated speaker would receive more time to address the City Council. But the new interim rules and procedures clearly state that “no ceding of time is allowed.”
“Ceding time was an important tool for community advocates to use in order to get our messages across,” said Husbands-Hankin. “It allowed for people to share their personal stories and experiences and connect that to the policy discussion.”
Husbands-Hankin said many unhoused people are currently shut out of virtual City Council meetings because they often do not have reliable internet access. She also emphasized that Oakland’s unhoused population is around 70% Black.
“There’s a huge racial implication to this,” she said. “Council should not be making decisions about encampments without direct input from unsheltered people.”
Some Oakland residents also want the councilmembers to show themselves on video during meetings, which they currently aren’t doing.
“I find it unacceptable that council members are not on video during these meetings,” said Oakland resident Liz Binning during a council meeting on May 30. “How are we to know if you are paying attention?”
Other local government agencies generally have been meeting over video conferences, including the Oakland Unified School District and Alameda County Board of Supervisors. The Oaklandside asked Kaplan if the Council planned to start requiring that members appear on video. She has not responded.
It’s unclear when the coronavirus pandemic will improve and allow a return to more normal City Council procedures such as in-person meetings inside City Hall. In the meantime, the League of Women Voters and others are asking the Council and city administrator to take action to restore more transparency and public access.
“It is well and good in the initial stages of an emergency to take a step back,” said Wallace, the League of Women Voters vice president. “But is there really a very specific good reason for any of these deviations?”
Correction: Talya Husbands-Hankin’s name was misspelled in the original version of this story.