The NBA comes to City Hall

The next time Stephan Curry visits Alameda City Hall during a Council meeting – after finishing his round at the new Corica Park south course – he’ll see a familiar sight if he looks at the big screen behind the dais:  a shot clock.

And not only one shot clock, but five – one for each Council member:

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The Merry-Go-Round wishes we could tell you that these timers, like those governing play in the NBA, are counting down the seconds left for a Council member to get off a shot – i.e., make a point – and that a loud buzzer will sound if she fails to do so within the allotted period.  Instead, they’re simply showing the time remaining for a Council member to say whatever she wants to say about the agenda item then under consideration.

The new shot clocks result from a Council decision on May 15 to adopt revised procedural rules that, among other things, limit the time each Council member may speak on an agenda item to a total of nine minutes.

But before our cynical readers cheer too loudly, they should also know that, at the same time, Council voted to reduce the speaking time for members of the public.  At present, each citizen who wants to speak on an agenda item gets three minutes regardless of the number of speakers, unless the mayor, after consulting with her colleagues, decides to reduce the time.  Under the new rules, if seven citizens sign up to speak on an agenda item, each speaker will get only two minutes at the lectern, unless, by a 4-1 super-majority vote, Council agrees to waive the restriction.

We suspect that, in some circles, the cheering may just have stopped.  But it could have been worse:  If Council members Marilyn Ezzy Ashcraft and Jim Oddie had gotten their way, the public speakers would have had to restrict their remarks to one minute apiece if 13 citizens signed up to speak on an agenda item.  (The irony is delicious:  When Ms. Ashcraft’s turn comes around during the Council “deliberation” period, she often takes nearly a minute just to identify all of the City staff members she has emailed or spoken to about the item, and then to praise all of the organizations or individuals supporting it whom she has known and worked with during her political career.)

A one-minute limit was too draconian for Mayor Trish Spencer, Councilman Frank Matarrese, and even Vice Mayor Malia Vella.  “We can’t detract from one person because there are other people who also have something to say on the topic,” Ms. Vella said.  Confronted with these objections, Ms. Ashcraft and Mr. Oddie backed down and agreed that the two-minute rule would apply to all agenda items with seven or more speakers.  Only Ms. Spencer opposed any hard-and-fast rule; Council should retain the “flexibility,” she argued, to set speaker time limits on an item-by-item basis.

Taken together, the new rules imposing time constraints on both Council members and public speakers may reduce the length of Council meetings.  Indeed, to Ms. Ashcraft and Mr. Oddie, who re-wrote the procedural rules drafted and recommended by the Open Government Commission, that seemed to be the primary purpose of making the changes.  “The overarching goal was to get our public in and out of a meeting,” Ms. Ashcraft stated on May 15.  “We lose attendance [for agenda items scheduled to be heard last].  We’re trying to make it so we get you all out of here, that we have our deliberations but a certain economy of time.”

(From the video, it appeared that Ms. Ashcraft was addressing these remarks to those left in the audience when the rule changes – the last item on the agenda – were being discussed.  But she also may have been talking to her colleagues.  After all, if the meetings are shorter, the Council members get to go home earlier, too.)

An effort to tighten up Council meetings surely is commendable.  It’s hard to dispute that, with the current Council membership, the bimonthly sessions tend to last a long time:  an exhibit prepared by staff for the OGC showed that, of 12 Council meetings between July 5, 2017, and January 16, 2018, six went past midnight.  Moreover, even a few Council members may be willing to admit that the quality of the discourse on the dais diminishes as one day moves into the next.  A shorter meeting may lead to sharper colloquy.

Nevertheless, it’s worth asking whether reducing the length of Council meetings is a sufficient reason for changing the procedural rules – and whether, if changes were necessary, the two revisions we’ve highlighted are truly beneficial.  In this regard a comparison of the recommendations made by the OGC with the version re-written by Council members Ashcraft and Oddie may be instructive.

First, the public-comment rule.

Under the Council resolution in effect since 1994, “Except for public hearings and other specified situations no one, including Council members, shall speak for more than 3 minutes.”  (emphasis supplied.)  The two members of the OGC charged with reviewing the existing procedural rules, Irene Dieter and Heather Little, did not propose any change to the three-minute limit for public speakers, for either agenda or non-agenda items, and their colleagues concurred.  Indeed, when City Clerk Lara Weisiger (joined by City Attorney Janet Kern) raised the issue of imposing a shorter time limit for agenda items if there were an unusually large number of speakers, the consensus on the OGC was that the current item-by-item system should continue.

Ms. Ashcraft and Mr. Oddie, who had volunteered to act as a “subcommittee” to review any proposed rule changes, balked at the OGC’s recommendation.  The two came up with their own tripartite structure:  if six or fewer speakers signed up for an agenda item, each would get the usual three minutes; if there were between seven and 12 speakers, each would get two minutes, and if there were 13 or more, each would get one minute.  (Their proposal didn’t address what would happen if, after the public-comment period had begun, a citizen submitted a speaker slip that would bump the total number of speakers into the next tier:  e.g., would the seventh speaker get three minutes, as those who preceded her did, or now be limited to two minutes?)

The Council subcommittee did not submit any report before the May 15 meeting describing the rationale for its scheme.  At the meeting itself, Ms. Ashcraft proffered only platitudes: “We’re trying to increase openness and transparency in government by making meetings move along more expeditiously,” she said, without explaining why the new time limits on public speakers were needed to achieve this amorphous goal.  Mr. Oddie was more forthright.  If only six speakers got the full three minutes apiece, he asserted, “you’re probably going to get 18 minutes of pretty full and robust discussion.  By the time you’re into hour two, there’s not a lot new that people are going to be able to bring to the argument except to say this is the way I feel.”

But it wasn’t just redundancy that troubled Mr. Oddie.  If the public speakers were limited to two minutes apiece, he said, they might “leave out some of the nastiness and personal attacks that they’re not supposed to say but often do.”  In that event, Council members would be spared having to sit through a public-comment period like the one in which, he said, turning toward Ms. Vella, “40 speakers attacked us and only two supported us.”  Undoubtedly, Mr. Oddie was referring to the April 16 Council meeting at which only two of the 34 public speakers – both of them labor leaders – defended him and Ms. Vella for their conduct in connection with the selection of the City’s new fire chief.  (For the record, these comments occurred during the public-comment period for non-agenda items, where both the former and the new rules permit an unlimited number of three-minute public speeches.)

For our part, while we sympathize with Mr. Oddie’s discomfort at being denounced by wave after wave of his constituents, we don’t see why citizens should be subjected to reduced time limits in order to spare the sensibilities of those who chose to seek elective office.  We do agree with the Councilman that public comments can become repetitive, and we realize that, unlike those of us who watch the proceedings later on video, he can’t fast-forward through the speakers who show up at every meeting to give the same speech regardless of the agenda item under consideration.  But we also doubt that, if a speaker wants to be tedious or offensive, cutting her time from three minutes to two will suddenly make her concise and polite.  Nor would it necessarily make it more palatable for Council or the audience to listen to her.  Indeed, the longer a blatherer is left to bloviate, the easier it may become to tune her out altogether.

In addition, we would challenge any speaker to present a cogent analysis of, say, a pension or budget issue in two minutes.  Even our esteemed City Treasurer and City Auditor might be hard-pressed to condense their remarks on these topics into such a short period.  Cutting a speaker’s allotted time may make her presentation more terse – but it may also make it less edifying.

(Before we move on, we want to offer a suggestion that neither the OGC nor Council is likely to accept.  The new rules repeat the admonition in the 1994 resolution that, “Public comment shall not be used to elicit a debate. . . .”  To which we say:  Why the hell not?  We understand why that should be the rule for comments about non-agenda items because of Brown Act restrictions, but there is no similar justification for applying the rule to agenda items that were properly noticed.  Nevertheless, the current system prohibits public speakers on regular agenda items from asking questions of either Council members or staff, and no one on the dais is allowed to respond to any statement made by a speaker during the public-comment period.  As OGC Commissioner Paul Foreman pointed out, the result is that public speakers often “feel like they’re talking to a wall.”

(During the last administration, both City Manager John Russo and, occasionally, Mayor Marie Gilmore herself, violated this rule, and the resulting exchanges often represented the most illuminating part of the entire meeting.  The same could have been true in more recent times:  Imagine how informative it would have been if a public speaker had been allowed to ask Mr. Oddie and Ms. Vella to state their reasons for believing that it was proper to vote on matters arising out of allegations about their own misconduct.)

Which brings us back to the rule change with which we began:  the time limit imposed by the Council members on themselves.

As noted earlier, the 1994 resolution limited Council members as well as public speakers to three-minute speeches.  No elected official ever adhered to this restriction, and, of the current contingent on Council, only Mr. Matarrese has earned any reputation for succinctness.  Accordingly, the OGC came up with a rule that, it hoped, would force Council members to stick to the point:  Council members could ask as many questions as they wanted for as long as they wanted.  But once a motion was made, each Council member would be allowed to speak up to three times on an agenda item for no more than three minutes at a time.

At the OGC meeting, Ms. Little, who had acted as the spokesperson before Council for the neighborhood group affected by the DelMonte warehouse development, outlined the basis for this recommendation: “It’s a bit of a train wreck right now,” she said. “Everybody’s talking and then coming back and saying almost the exact same thing another time.”  Her colleague, Ms. Dieter, herself a veteran commenter at Council meetings, made a similar point in her remarks on May 15:  The goal of the “3-by-3” recommendation, she said, was to “stop long-winded commentaries right off the get-go.”

Like the OGC’s recommendation not to limit public speakers, this proposal didn’t sit well with Ms. Ashcraft and Mr. Oddie.  It was “too restrictive,” Ms. Ashcraft told her colleagues.  “The Council should be able to allocate their time the way they want to.”  Mr. Oddie added that he and Ms. Ashcraft opposed the recommendation because it “took away from your [i.e., Mayor Spencer’s] ability to manage the debate.”  (We hope Ms. Spencer was taking notes for future reference of this unexpected expression of deference.)

Accordingly, the two Council members advocated striking the rule recommended by the OGC and replacing it with a provision stating that each Council member “may speak up to nine (9) minutes per agenda item.”  Why nine?  Who knows?  Mr. Oddie claimed that the Oakland City Council had a seven-minute limit, but Ms. Weisiger quickly corrected him.  (It’s 10 minutes.)  Maybe he and Ms. Ashcraft simply decided that, since the OGC suggested three blocs of three minutes apiece, nine was the right number to use.  And Council, by a 4-1 vote (Ms. Spencer dissenting), went along.

We salute the OGC for trying to devise a procedure designed to establish a structure for Council deliberations rather than just limit their duration.  Its proposed rule resembles courtroom practice, where the moving party gets an opening argument, then (usually), a rebuttal confined to responding to the points made by her opponent.  A similar rule might make Council discussions more focused.

But the question remains:  Who would enforce a rule like that?  The mayor doesn’t wear a black robe, and we can’t see even Ms. Spencer interrupting one of her colleagues to tell her she’s exceeded the proper scope of argument.  And we doubt that Ms. Weisiger would relish being given this role.

(Of course, the same question can be asked about the new nine-minute rule:  who’s going to enforce it, and how?  Once the clock counts down to zero, does the mayor or city clerk bang a gong?  Does the IT guy in the back room turn off the offending Council member’s mike?)

As a practical matter, we’re not sure that the nine-minute limitation will cause Council members to alter their behavior.  (Expect the opening hymns of praise and thanksgiving to continue; there’ll still be a lot of time left on the clock.)  But Council has held only three regular meetings since the new rules were adopted, and it may be too soon to tell.  Mr. Matarrese, whose referral started the process of revision in the first place, is optimistic.  “I wanted easily understood rules of order for the Council meetings and I want the Council to follow them so we can focus on making good decisions,” he said.  “I like the rules adopted.  Following them will take some getting used to, and some self discipline, but I think it’s getting better.”

We’ll see.

Sources:

Matarrese referral: 2017-04-18 Matarrese referral re rules of order

Open Government Commission recommendations: 2018-03-05 Ex. 1 to staff report – Subcommittee Recommendations; 2018-02-05 Ex. 4 to staff report – Council Meeting End Time 1-2018 to 7-20172018-05-15 Correspondence – Updated 5-10-18

Council “subcommittee” re-write: 2018-05-15 Ex. 4 to staff report – Council Subcommittee Redline Revisions

Final resolution: Resolution 15382

Photo courtesy of Irene Dieter

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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2 Responses to The NBA comes to City Hall

  1. Bill says:

    OK, I only have 30 seconds to write this. I would prefer Steph Curry over Mayor Spencer. If the Mayor could manage, changes in speaking time would not be necessary. Hopefully, when Council Member Ashcraft is elected Mayor, she can do a far better job at managing meetings. Managing the public’s allowed time seems wrong. Not sure what my argument is, but it seems like the public are the people we should be hearing most from.

  2. MP says:

    This is great so long as it doesn’t become something else to disagree about and that disputes over whether the clock was started too soon, too late, whether it was or was not supposed to run during another member’s point of order, do not themselves take up too much time. I would recommend that the timekeeper be someone not terminable at will by the Council.

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