Midnight madness

There ought to be a law prohibiting City Council from ever doing business after midnight.

As golf war veterans know, such post-midnight sessions almost always turn out badly.  Council strays far afield from the issue identified in the agenda, discussed in the staff report, and addressed by the public commenters.  And then it comes up with a resolution that leaves the diehards who sat through it all wandering out into the darkness and wondering, What did Council just do? And why did they do it?

Unfortunately, we saw this phenomenon repeated late last Tuesday night and early Wednesday morning.  And the City may pay the price for it.

At the end of Council’s agenda were two items:  the citizen-sponsored initiative re-zoning the 3.89-acre parcel at Crab Cove (aka Neptune Pointe) from residential to open space, and a so-called “companion measure” deemed necessary by Mayor Marie Gilmore and Vice Mayor Marilyn Ezzy Ashcraft to “protect the General Fund” from the imagined consequences of passing the open-space initiative.

To the surprise of some open-space advocates, Council voted just after midnight to adopt the re-zoning initiative as an ordinance rather than placing it on the November ballot.  Then, it went ahead and enacted the companion measure, which staff dubbed the “fiscal responsibility measure,” as an ordinance as well.  Both ordinances are scheduled for their second reading – and final passage – on July 15.

The open-space ordinance tracked the initiative exactly.  But the “fiscal responsibility” ordinance was not the same as the one in the agenda package published before the meeting.  In fact, it was a revised version containing changes proposed by City Attorney Janet Kern and Councilman Tony Daysog after the agenda had been posted.  These revisions were not made available to the public at or before the meeting.  But they were contained in the document staff gave to Council in advance.

The script undoubtedly called for the story to unfold as if only minor editorial changes were being proposed, and then only after they had been presented and discussed at the meeting.  But the Vice Mayor gave it all away.

Take a look at the video beginning at 4:44.  Concerned, as always, about matters of form, Ms. Ashcraft corrects Ms. Kern when the City Attorney is reading the revised text that includes her own proposed changes.  When Ms. Kern refers to paragraph (b), Ms. Ashcraft interrupts. “That’s (c), isn’t it?” she says.

In fact, there was no paragraph (c) in the measure as published or as revised by Ms. Kern; it appeared only after Mr. Daysog’s changes were inserted.  Since Mr. Daysog had yet to speak, the City Attorney was sticking with the original numbering even though the text in front of the Vice Mayor and her colleagues had been re-numbered to reflect the Daysog amendment.  But her verbal agility apparently caught Ms. Ashcraft unawares.

The video shows Councilwoman Lena Tam leaning over and whispering something in Mayor Gilmore’s ear.  “Okay, got it, got it,” the Mayor says.  Then, as Ms. Kern reads the revised version for a third time, again omitting the Daysog amendment, Ms. Gilmore turns in the other direction and speaks sotto voce with Ms. Ashcraft, pointing to a document.  After a few seconds, Ms. Ashcraft nods in understanding.

Now, we don’t pretend to be experts in either the state Brown Act or the local Sunshine Ordinance.  But this procedure seems a little, well, irregular to us.  It causes one to wonder whether Council and staff secretly had decided on their course of action – and even agreed on the language needed to implement it – before the meeting, then engaged in an elaborate charade to make it appear that they actually were listening to the half dozen citizens who waited until the wee hours to speak on the matter.

Procedure isn’t the only problem.  Indeed, it isn’t even the major problem.

The key revision to the “fiscal responsibility” ordinance published in the agenda was one for which Ms. Kern took credit.  As we previously pointed out, the companion measure, as written, did nothing more than “authorize” Council, in the event of a lawsuit, to take actions it already had the power to take.  But Ms. Kern proposed an insertion granting Council authority to delay the open-space ordinance from taking effect if the City was sued.  The “suspension or stay” would last until the litigation was resolved.

The City Attorney initially attempted to minimize the significance of this revision.  “This one is not really substantive, it’s just more clarifying,” she said.  But later on, prodded – twice – by the Vice Mayor to propose “more specific language we should be looking to to protect our interests,” Ms. Kern took the hint and acknowledged that her revision “does actually enhance what the City Council’s authority would be.”

The trouble with this “enhanced authority” is that, in all likelihood, a court would find it to be illegal.

Elections Code section 9217 is quite clear:  “No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.” (emphasis supplied).

Equally clear is the intent behind the statute:  “The purpose of section 9217 is to protect the electorate’s constitutional right to initiative by preventing successful initiatives from being undermined through amendment by hostile legislative bodies.”  Under the statutory language, “successful initiatives” include initiatives proposed by the people and adopted by a legislative body.

A court well could rule that, read in light of its language and intent, the Elections Code prohibits Council from exercising the “enhanced authority” Ms. Kern’s insertion purports to grant.  Now, we suppose that one of those “highly skilled” lawyers Ms. Kern wrote about in her impact report – albeit referring to opposing counsel – could argue that there is a distinction between “staying” or “suspending” the open-space initiative and “repealing” or “amending” it.  The ordinance does only the former, they’d say; the statute prohibits only the latter.

For our part, we’d hesitate to try to split hairs in such a fashion before a group of Jesuit priests, much less before a panel of appellate judges.  In either case, the result of Council’s action is to prevent a citizen-sponsored initiative from taking effect.  The Court of Appeal has seen through attempts to evade the Elections Code by claiming that an ordinance is merely “clarifying” a citizen-sponsored initiative or legislating “in a related but distinct area.”  It may not be inclined to draw the fine distinction necessary to save Ms. Kern’s handiwork.

But suppose the “stay or suspension” provision is allowed to stand.  The analysis doesn’t stop there.

By itself, a stay or suspension of the open-space ordinance would do nothing to accomplish the Mayor’s professed goal of “protecting the General Fund.”  It wouldn’t deter a lawsuit, since it only kicks in after litigation commences.  It wouldn’t save defense costs, since legal fees continue to accrue as long as litigation is pending.  Instead, all it does is to put the open-space initiative on ice till the suit is resolved.

Presumably, if the City wins the suit, the stay or suspension gets lifted and the open-space ordinance goes into effect.  But what if the City loses?  Ms. Kern glibly told Council that, in that event, “maybe we just change the zoning so it’s not open space.”  But that Council cannot do without going to the voters.  On that point, Election Code 9217 is absolutely clear.  And it’s highly unlikely that the citizens will vote to repeal a measure they just signed petitions for.

Yet if the City loses the suit, the stay or suspension can’t last forever.  At some point, Council must put the open-space ordinance into effect and re-zone the Crab Cove parcel to open space.  (If Council tried to delay the effectiveness of the open-space ordinance indefinitely, you can bet a mandamus action will be filed to force it to act).  What then?  Is the City itself going to develop the land into a park?  Is it going to crawl, hat in hand, to the agency the politicians and staff so love to vilify, the East Bay Regional Park District, to try to cut a deal?

If Ms. Kern thought through any of these scenarios, she didn’t choose to enlighten the public during the post-midnight proceedings.  We thus may end up with the supreme irony:  a Council so litigation-averse that it thinks it needs a companion measure to protect against a possible lawsuit enacts an ordinance whose legality is so dubious that a lawsuit inevitably will result.  Carelessness carries consequences.

Councilwoman Tam is famous for voting “No” on otherwise routine motions to allow a Council meeting to last longer than its appointed hour.  She did so again last week.  We’d all be better off if, this time, her colleagues had gone along with her.


“Fiscal responsibility” ordinance: 2014-07-15 companion ordinance

About Robert Sullwold

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

3 Responses to Midnight madness

  1. Irene says:

    Councilman Stewart Chen voted against the “companion” ordinance for the lack of transparency you cite above.

  2. Beau says:

    Sorry, where is the video?

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