On three separate occasions, the Berkeley City Council discussed the proposed "Problematic Street Behavior" ordinances in closed, "executive" sessions with the City Attorney, sessions whose publicly posted agendas made no mention of the intent to discuss the ordinances.
Councilmembers met with City Attorney Manuela Albuquerque on February 8, March 8, and March 17, in sessions declared closed to public attendance. According to the agendas posted at City Hall, the subjects of the meetings were to be: "pending litigation pursuant to government code sections 54956.9 (b)(1) and (c)." But City Clerk Sherry Kelly confirmed that the Council used the closed sessions to discuss the controversial anti-panhandling laws currently before them.
During these three meetings, the City Council conferred with City Attorney Albuquerque on the legal viability of the proposed laws, which would ban panhandling after dark or near ATMs, bus stops or any place of business, as well as sitting on the sidewalk and other activities. The Council and Albuquerque also discussed the intention of the American Civil Liberties Union (ACLU) to challenge any or all of the laws in court.
According to a source inside City government, Albuquerque advised the Council that even if the ordinances were thrown out by a higher court, the legal battle would drag on long enough for the laws to be rigorously enforced by the City's police, effectively discouraging panhandling in Berkeley. Marjorie Gelb, of the Office of the City Attorney, would neither confirm nor deny Albuquerque's statement. "I can't give you any information," said Gelb, "That's the nature of closed meetings."
Albuquerque and the Council also allegedly agreed to keep close tabs on any pending legal challenges to the anti-panhandling laws recently enacted by the Santa Cruz City Council. Like the proposed Berkeley laws, the Santa Cruz ordinances outlaw panhandling near places of business and bus stops. If the Santa Cruz laws stand up in court, the decision could be used as a legal precedent for many of Berkeley's proposed laws. This strategy follows the pattern established by the Subcommittee on Problematic Street Behavior, which drafted the anti-panhandling proposals.
Both City Clerk Kelly and the Office of the City Attorney maintain that the City obeyed the letter of the law when it drafted the agendas for the closed meetings. The Brown Act, which determines what subjects the Council can discuss in executive session, stipulates that the City Council may discuss litigation or pending litigation in closed session with its lawyer. The law also lists what types of events or circumstances qualify as pending litigation, although it is unclear whether one can have a pending legal challenge to a law that has yet to be enacted.
The Brown Act obliges the City Council to notify the public of the type of pending litigation it intends to discuss. But it only instructs the Council to refer to the legal code that corresponds to the type of litigation. It is this clause, Marjorie Gelb and the City Clerk insist, that allows the City to publicly refer to the anti-panhandling laws as "54956.9 (b)(1)."
The Berkeley Tenants' Union (BTU), a local tenants' rights information and legal resource, disagrees. The BTU has threatened to "immediately initiate the appropriate legal action" to require the Council to make public the minutes of the three closed sessions in February and March. Lawyers affiliated with the ACLU have met with the BTU to discuss a timetable for bringing such action to court.
The Brown Act was recently amended to require a more descriptive public announcement of what is to be discussed in executive session. The City Council subsequently complied, and in its agenda for the closed meeting of April 12, listed "Anticipated litigation regarding the Aggressive Street Behavior proposals."
The amended Act also requires a certain amount of time at the start of each closed meeting for public input. Members of the Berkeley public now have ten minutes to comment on what they cannot attend. If they want, they can even use the time to demand that the Council hand over the minutes to their secret meetings of the past.