Through a glass diffusely

(Originally published in the Alameda Sun August 15, 2013)

These days, Alameda’s political leaders are fond of justifying their decisions in legal terms:  We had no other choice to act as we did, they say, because the law requires (or prohibits) it.

Too often, upon closer examination, it turns out that the politicians are simply using the law as a cover.  They cite an uncontroversial legal principle and then pretend it mandates the result they’ve reached for other reasons.  It’s a clever tactic – but it’s also misleading.

Take a couple of examples.

The Housing Element.  As we have so often heard from the dais, state law requires a city to adopt a housing element as part of its general plan.  It also requires that the housing element provide sufficient units in each of four income categories to meet the city’s share of a regional quota.

That much is true.  But it does not mean that the housing decisions made by Council last year were necessary, as the politicians have claimed, “to comply with state law.”

In particular, state law did not require the City to re-zone 16 separate parcels with a total capacity of 2,306 units for multi-family housing when it adopted the 2007-14 housing element.  Instead, only 1,179 units were needed to satisfy the City’s share of the regional quota for very-low and low-income housing and thereby “comply with state law.”  This goal could have been met by re-zoning 10 parcels and stopping there; the extra six were excess.

Nor did state law require the City to re-zone the McKay Avenue property next to Crab Cove for multi-family housing and count it toward the very low/low-income quota.  Indeed, it can be argued that the City did not need to re-zone the site for residential use at all in order to meet its total “unmet need” for housing.  In any event, it is hard to fathom why the City would put the McKay Avenue property in the “very low/low” income category when it knew that the parcel had just been acquired by a developer who specialized in building high-end single-family homes.

Both decisions surely pleased advocates of multi-family housing, especially low-income housing.  One cannot help but wonder whether advancing the multi-family housing agenda in fact was what motivated staff and Council.  But promoting this policy (or appeasing its advocates) is not the same as acting “to comply with state law.”  If the politicians are really doing the former, they shouldn’t try to fool us by claiming they’re doing the latter.

Pensions and Other Post-Employment Benefits.  We also have heard it said frequently that a city may not take any action impairing “vested rights” to pensions or other post-employment benefits (“OPEB”).  Again, the statement is true as far as it goes, but the real question is:  Just what retirement benefits qualify as “vested rights”?

The courts recently have ruled that a retiree health benefit is “vested” only if the employer promised to continue it for all time.  Absent an express promise, the California Supreme Court stated, “implied rights to vested benefits should not be inferred without a clear basis in the contract or convincing extrinsic evidence.”

This isn’t how our staff and politicians portray the law.  To them, any retirement benefit is “vested” and therefore untouchable.  Indeed, Council recently ruled out reducing the amount paid by the City for current retirees’ health insurance – which would have cut down our OPEB liability significantly — because they deemed it “illegal.”

This decision undoubtedly pleased the public employee union leaders who fund campaigns.  Maybe it was even made for their benefit.  But the politicians shouldn’t try to get us to believe that an action intended to placate their contributors reflected nothing more than adherence to the law.

Perhaps this tactic is so often used because the three most senior officials in the City – the Mayor, the Vice Mayor, and the City Manager – all have law degrees.  But the practice isn’t new.  For example, during the golf wars, instead of admitting that they wanted to curry favor with Ron Cowan, the powers-that-be argued that the swap was needed to satisfy the City’s “obligation” to find land on which Cowan could build additional houses.  Entirely plausible – but totally untrue.

Misuse of the law is a dangerous tactic.  By claiming that their decisions are mandated (or prohibited) by law, the politicians make it harder for the average voter to evaluate those decisions on their merits.  It’s like forcing someone who knows little about cars to judge whether the new set of shock absorbers the mechanic is recommending is really necessary.

One of the insiders’ favorite buzzwords is “transparent.”  Perhaps a better word for their conduct would be “translucent”:  They’re willing to let the light shine through, but by the time it reaches the public, it’s so diffused you don’t realize what you’re actually seeing.

Editor’s note:

For more detailed discussion of the topics covered above, see these previous posts:

“Parroting the party line”

“Ignoring the law”

“Measure A — On Its Last Leg?”

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall, Development, Housing, Pensions and tagged , , , , , , , , , , . Bookmark the permalink.

2 Responses to Through a glass diffusely

  1. Al & Ethel Lerche says:

    Keep up the GREAT work, Bob. Very Informative articles!

  2. Marie says:

    I would like to echo Al and Ethel. You are doing a valuable public service.

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