Lauren Berkowitz can keep on phoning it in while Tweeting commentaries

By Jack Mayne

Burien City Councilmember Lauren Berkowitz can still attend sessions by telephone, despite having long been criticized by some members of the Burien public.

Berkowitz has physically attended only three council meetings over the past 15 months.

City Attorney Lisa Marshall proposed changes in Council rules, including one to accept and be guided by the latest upgrade of Robert’s Rules of Order. Another proposal by Marshall was acceptable speech where the Council “is free to request that speakers refrain from the types of speech,” but they were likely unenforceable if challenged.

Marshall did not make any suggestions concerning Berkowitz’s attendance, apparently because that is an issue only the City Council can decide. State law says a councilmember is removed if he or she has three or more unexcused absences, but Berkowitz has attended all meetings – just not in person – giving her de facto permission to be on the telephone.

Speech and rules
After a long discussion, the Council rejected 4 to 3 other Council rule changes proposed by Marshall that included updated Roberts Rules of Order and types of speech not allowed in the formal Council session. Voting no because they said they wanted more discussion at a scheduled May meeting were Mayor Lucy Krakowiak and Councilmembers Armstrong, Edgar and Wagner. Voting for the changes were Berkowitz, Tosta and Bell.

Acting City Manager Tony Piasecki and Marshall placed the changes the agenda discussion on proposed revisions to the City Council Meeting Guidelines, including a decision made over a year ago that provides that Councilmembers cannot use social media while Council was in session. Berkowitz routinely phoned in to Council while continuing to steadily Tweet on Twitter and post on Facebook.

The matter will return to the Council for continued discussions in May.

Tweeting during meeting
Berkowitz has personally attended only three meetings in the past 15 months, although she has faithfully “attended” by telephone virtually every meeting during that time.

On Monday night, as the Council moved toward the discussion, Berkowitz Tweeted: “Moving toward yet another discussion of council guidelines, rather than real issues faced in Burien.”

Resident Charles Schaefer said during public comment that he appreciated that most members of the Council were present in person so he often could discuss items of interest with them before and after the session, or at breaks.

Local business owner Darla Green said “90 percent of people’s success is showing up and Councilmember Berkowitz hasn’t shown up in over a year,” adding “I find it incredibly disrespectful not only to the community to which she was elected to serve, but to you, the Councilmembers who do show up, it is very rude.

“And, mind you, we can’t hear her on the phone very well,” Green said. “I hope you will address it and have a backbone.”

Resident Lisa Parks said she felt it unfortunate that people who take the time might have to be “concerned about what someone might say on social media,” referring to Berkowitz’s propensity to post comments on Twitter during the Council session.

“It is very disrespectful,” Parks said. “There have been many, many people who have gotten up here and were trashed on social media

Earlier, Berkowitz Tweeted:

Council wants to discuss council rules at yet another meeting. They want to discuss social media again, council attendance, etc. Non-issues.

— CM Lauren Berkowitz (@BurienBerkowitz) April 4, 2017

Watching the live television and computer feed while listening on the phone, Berkowitz said “I’ve even seen at least one Councilmember reading the news during Council meetings,” and she suggested one type of speech cannot be isolated from other speech forms.

Berkowitz then read a prepared statement over the speakerphone, which was difficult to hear and understand.

“Silencing an opposing Councilmember’s speech, whether by banning a social media posting at the meeting or by dictating the content of their speech is unprofessional and unconstitutional,” Berkowitz said via telephone.

Real issues, she said, were ignored by the Council making plans to “silence” her use of social media.

When Berkowitz was finished, cries of “We can’t hear her” came from the audience and Krakowiak told the audience to “hold your comments … for public comment periods.”

‘Likely is legal’
As far as writing on social media, as Berkowitz does, it likely is legal, wrote Marshall.

“Assuming a councilmember’s written speech on social media didn’t cause a physical disturbance in the chambers, the Ninth Circuit would likely consider the guideline restricting such speech an impermissible regulation,” the city attorney wrote.

Councilmembers Austin Bell and Nancy Tosta said they accepted Marshall’s views, although Tosta said further Council rule changes may be needed and there needs to be a discussion about “actually abiding by the rules.”

Mayor Krakowiak said voters should “vote your conscience … and a policy on attendance.”

Councilmember Bob Edgar said he was concerned that approving the city attorney’s changes means “we are through with this” so that changes could not be made in the future and would oppose the proposed changes.

Are Councilmembers employees?
Councilmember Debi Wagner also opposed the Marshall changes and wondered if Councilmembers were employees of the city or were they employees of the voters, as Berkowitz believes.

Marshall said that courts have not yet decided whether city councilmembers in Washington state are employees, but courts have decided that state and federal legislators are employees of the body for which they were elected to serve.

Likewise, Marshall said the courts have decided that Councilmembers should have the same protection as citizens on free speech, “if not more.” Legislators are “immunized for speeches you’ve made while legislators,” both while in Council session and outside in the public arena.

Tweet fest
Councilmember Debi Wagner said Berkowitz Tweets a lot.

“At the March 20th meeting, Councilmember Berkowitz made 32 comments on Twitter and on Facebook that were not entered into the public record, not reflected in the minutes. They aren’t known by people who don’t have access to Facebook or Twitter so this is a discussion that is being had during a Council meeting at the dais…”

“We have people here that can’t hear her,” said Wagner. “We have people who don’t have access to Facebook or Twitter so aren’t aware of the conversation” or responsive to the open public meetings act.

Krakowiak asked Wagner to clarify her remarks and Wagner responded that we have a conversation that is not available to all in the audience or at home via video feed.

Fireworks are coming
The city’s ban on fireworks has been an item of concern for the Burien Police for years but it has changed a bit of late, says Chief Scott Kimerer. Once the illegal fireworks were exploded on the streets where police had easy access, but now most are detonated in back yards where police can not go without either a warrant or permission of the property owner.

Kimerer said the 4th of July is his “least favorite holiday of the year” and that fireworks displays are a constant problem that represents a “huge workload on us on both the 3rd and the 4th.”

Police “staff up” for the holiday, spend overtime money and try to come up with strategies working with the fire department and “what we come up with just keeps us running and running and running.” Police responded to 86 calls last year.

The public “has their own strategy” and moved to backyards and “it really does hamper out ability to deal with fireworks.”

Adding to the problems is “things happen,” noting there was a double homicide last year on the 4th, and that drew his manpower away from fireworks problems.

Councilmember Bob Edgar said he checked other cities and Burien has the lowest fine imposed for violating fireworks bans.

Kimerer said the “overall impact” of fines is minimal because “other people did not get caught.”

The Council took on action on increasing fireworks fines but asked the city staff to research that and other aspects and bring it back to them later.

Airports have impacts
The Council unanimously approved a letter drafted by the Burien Airport Committee regarding the potential updating of the Washington Aviation System Plan (WASP) by the Washington Department of Transportation (WSDOT).

Deputy Mayor Nancy Tosta, a member of the Burien committee, said that beyond the benefits of the airport, “are social and environmental impacts.”

The letter, amongst other things, wants the agency to “aggressively consider alternative airport capacity options.”

“Air traffic expansion, with its attendant deteriorating health and environment conditions, cannot continue to burden some of the poorest communities and residents of our state. This is not fair, equitable, or safe for communities already struggling to address homelessness, crime, and congestion,” the letter says.

Tosta also said that the eventual airport capacity far exceeds the current projections.

“So, what happens if you can no longer contain additional air capacity,” and that means another study that should be done “now, rather than later. To build a new airport is going to take more than two decades worth of planning,” Tosta said.

The City Council gave final approval for Westview at Manhattan subdivision, which will create the new lots for sale.