Amend this!

Well, a lot sure got accomplished Tuesday night when Council considered the so-called “fiscal responsibility” ordinance proposed as a way to “protect the General Fund” in the event of a suit challenging the Crab Cove open-space initiative.

Remember the amendments added after midnight at the July 1 Council meeting?

One, authored by City Attorney Janet Kern, would authorize Council to “suspend or stay” the open-space initiative if someone sued.  The other, offered by Councilman Tony Daysog, would add “cut[ting] services” or “modif[ying] the budget” to the list of options for paying an adverse judgment.

Two weeks ago, Council passed both amendments, by a 4-1 vote.  Tuesday night, Council deleted them both, this time by a 3-2 vote.

So we’re now back to the text of the ordinance as originally written and published (with a few minor editorial corrections).  But since Council did not pass the version of the ordinance approved at the July 1 meeting, there will need to be a third reading on July 29.

What went on here?

The “suspend or stay” amendment was a goner from the outset.  Even its proponent, Ms. Kern, was unclear about what it was supposed to do.  When she introduced the amendment on July 1, Ms. Kern described it as “not really substantive, it’s just more clarifying.”  Later in the same meeting, she changed her position and contended that the suspend-or-stay provision “does actually enhance what the City Council’s authority would be.”  But then Tuesday, pressed by Councilman Stewart Chen, D.C., she reversed herself again and conceded the provision was not really necessary after all because Council could suspend or stay the initiative without a specific ordinance authorizing it to do so.

If not even the author can make up her mind about the purpose or effect of the suspend-or-stay amendment, what’s the point of including it in the companion ordinance at all?

Ms. Kern was no more convincing when she made a half-hearted attempt to defend the legality of her proposal.  Elections Code section 9217 expressly prohibits a legislative body from “amending or repealing” a voter initiative (or an ordinance adopted pursuant thereto).  But the “fiscal responsibility” ordinance was only a “companion” measure “consistent” with the open-space initiative, Ms. Kern insisted.  Why, the ordinance said so itself!  Ipse dixit, we guess.

In any event, the City Attorney went on, the suspend-or-stay provision was “contingent” on the City being sued.  (Which was equally true of the companion measure as a whole).  So, if we understood her argument, the action authorized by the amendment wouldn’t be illegal until Council actually took it.  Feel more comfortable?

The Daysog amendment wasn’t expected to raise any serious objections.  Unlike the Kern amendment, it didn’t purport to give Council any authority it didn’t already have.  As it turned out, that wasn’t the problem.  It was that the amendment sent the wrong message.

The first clue that something was up occurred when Councilwoman Lena Tam, an unabashed advocate for the public safety unions, pulled two items from the consent calendar.  Both these items authorized buying equipment for the police and fire departments, including $235,000 for six cop cars and a motorcycle; $673,799 for a new fire engine, and $74,000 for two new fire department “staff vehicles” – a truck and a “police interceptor utility vehicle.”

Ms. Tam wasn’t complaining about spending nearly a million bucks for the cops and firefighters.  Her point, she said, was to “highlight our priorities for the General Fund.”  Reading from a prepared text, Ms. Tam said that buying new cars, trucks, and engines for the police and fire departments “reflects the highest priority of the City to provide the training and the equipment necessary to keep our public safety officers safe.”

Mayor Gilmore then picked up the ball when it came time to discuss the companion measure.  She introduced the item by proposing that the Council strike the Daysog amendment altogether.  “As Council member Tam so eloquently stated,” Ms. Gilmore said, “the City Council, in setting the budget and appropriating money throughout the year, has different priorities, and probably the number one priority of the Council is the health, safety, and well-being of the citizens.”  It just wouldn’t do to pass an ordinance that recognized the possibility of “cuts” or “modifications” to the police and fire department budgets.

And that, we suspect, was the message Ms. Gilmore and Ms. Tam intended to send – not so much to mollify the public, but to reassure their friends at IAFF Local 689 and its PAC-less cousin, the Alameda Police Officers Association, that the Council members elected with union money understood what their priorities should be.  Not to worry, they were saying:  If the City has to pay for a lawsuit, we’re not going to bite the hand that feeds us.

As the author of the amendment – and the only Council member not endorsed by the firefighters’ union in his last race – Councilman Daysog wasn’t persuaded.  Surprisingly, neither was Vice Mayor Marilyn Ezzy Ashcraft.  Cutting services was only one of three options listed in the amended “fiscal responsibility” ordinance for paying an adverse judgment (the other two were raising taxes or selling the property).  “We may need to rely on all three of those possibilities,” the Vice Mayor said.  “I thought that’s why we included them all.”

When it came time to vote, Ms. Ashcraft joined Mr. Daysog in opposition.  Councilman Chen, the guest of honor at a recent luau and barbeque sponsored by the firefighters’ and teachers’ unions at IAFF Local 689 headquarters, cast the deciding vote.

Alamedans, consider yourself informed – or maybe the better word is forewarned.

We can’t leave our account of Tuesday’s meeting without commenting on one other issue:  the aggressive, indeed overtly hostile, approach taken by the Mayor and City Manager toward the members of the public who spoke against the “fiscal responsibility” ordinance.

Ordinarily, at Council meetings Ms. Gilmore strictly prohibits any dialog between public speakers and those on the dais.  You get your three minutes, but when the buzzer sounds, you must sit down.  No requests for explanations directed to staff.  And, most assuredly, no back-and-forth with Council members themselves.

But the Mayor and Mr. Russo demonstrated Tuesday that, as far as they’re concerned, this is a one-way street.

The first three speakers – one of whom, to the Merry-Go-Round’s personal knowledge, could have gone toe-to-toe with Ms. Gilmore and Mr. Russo on any legal issue – got a pass. Next up was Irene Dieter, a long-time advocate for parks and one of the Friends of Crown Beach responsible for qualifying the initiative for the November ballot.

Tweeting from Council chambers, Michele Ellson of The Alamedan, an objective observer if ever there was one, provided the play-by-play:

“Both mayor and Russo are engaging Dieter over her comments, which is unusual – typically don’t engage public from the dais,” Ms. Ellson reported.  A minute later:  “May be fair to say this is a measure of what a highly charged issue this is at City Hall.”

Then, after finally letting Ms. Dieter off the stand – er, away from the podium, Ms. Gilmore and Mr. Russo trained their fire on the next speaker, former City Councilwoman Karin Lucas, another leader of the Friends of Crown Beach.

“Again, it is super unusual for folks to engage speakers from the dais,’ Ms. Ellson tweeted.  “This is turning into a bit of a food fight.”

Finally, as the attack from the dais continued, Ms. Ellson commented, “This is getting reaallly ugly.”

And so it was.

The Mayor, in particular, did not distinguish herself.

First, she asked Ms. Dieter, a non-lawyer, “Aren’t you the same person who stood up here and told us it was unlikely the City would ever get sued?”  (She wasn’t).

Later, she asked Ms. Dieter to address an absurd scenario under which, after the open-space initiative took effect, the federal government would give a 99-year lease to a developer whom it would “convince” to “build houses, build a hotel, build whatever” on the property.  (She couldn’t – neither could we).

And when it was Ms. Lucas’s turn, Ms. Gilmore demanded to know, “So you would be OK with the taxpayers paying for this piece of property twice?”  (Ms. Lucas never said or implied that.  In fact, open-space supporters were arguing that the Measure WW funds already set aside for purchase of the Crab Cove parcel could be used to reduce the amount of City funds, if any, needed to compensate the property owner in the event of a inverse condemnation award).

To us, nothing justified the diss dished out from the dais.  Neither Ms. Dieter – whom we know well – nor Ms. Lucas – whom we know slightly – came to the podium dripping venom.  But they committed what, for this Mayor and this City Manager, may have been a cardinal sin:  They suggested that the politicians had made a mistake when they voted to re-zone the Crab Cove property to residential back in July 2012.  Even worse, they suggested that those same politicians had refused to concede or correct their mistake.

No politician, of course, enjoys owning up to a misjudgment.  But many elected officials – even George W. Bush – profess their perfection with a wink and a smile.  Not the Russo/Gilmore administration.  To the Mayor and City Manager, it’s an article of faith.   Admit we were wrong?  How dare you!  It’s almost as bad as if Ms. Dieter or Ms. Lucas had accused them of being Republicans.

Now that the open-space initiative itself is on the books, we’d like to think this is the last column we’ll be writing on this subject.  But we’re going to tune in anyway when the companion ordinance gets its third reading on the 29th.  Who knows what message the Mayor, Mr. Russo, or their allies will want to send next?


“Fiscal responsibility” ordinance, v.1: 2014-07-01 Ex. 1 to staff report – Fiscal Responsibility Measure

“Fiscal responsibility” ordinance, v.2: 2014-07-15 companion ordinance

The video of Tuesday’s Council meeting is available on the City’s Website.


About Robert Sullwold

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

12 Responses to Amend this!

  1. brigwarden says:

    Watch last nights (7-15-14) City Council meeting on the tape recording. Go to 4:59:04 on the tape, at that point our City Manager John Russo just finishes up his comments to some of the members of the council telling them about how hard they had worked that night on all the issues presented to them. Russo then said, “Dealing with the Neptune Point NONSENSE that got put on.”
    I can only assume (my opinion) that it is Mr Russo’s opinion that the Crown Point issue is “NONSENSE.” I guess that Mr Russo must take us (the concerned citizens) that worked so hard on the Crown Point issue as a bunch of fools! Again this is just my personal opinion after listening to Mr Russo’s comment through an open mic.
    I, as a life long citizen of Alameda, expect the elected officials and paid employees (i.e. City Manager) to take my concerns as well as the concerns of ALL the citizens of Alameda seriously. I didn’t expect the citizen’s concerns to be taken as “NONSENSE.”

  2. brigwarden says:

    Both the Mayor and the City Manager continue to interrupt speakers when they hear something that they don’t like. This type rudeness, lack of decorum, intimidation and pontificating needs to stop. I feel that the City Manager should direct his comments to the City Council only, unless otherwise directed by the Mayor. No one from the public interrupts them when they are speaking.

  3. tom says:

    Just a few comments on the performance of the City Manager and Mayor on July 15, 2014 City Council meeting:

    Russo just can not keep his mouth shut especially when he is exposed for errors of decision.
    His behavior as prosecutor at this meeting, along with the mayor’s interrogations from the dias, shows the level of pain they both are feeling in addressing their errors on this issue. The mayor is a bit perplexed by most items as shown at this meeting, Russo is a smart warrior attorney and it seems he will never shut up or admit error, its likely not in his psychic programing. wonder how he will view life when he is 85?

    Hopefully the next Council meeting and vote on the companion ordinance to the Friends of Crown Beach ordinance will put the “Russo Death Pill” down.

    • Dennis Laine says:

      Both the Mayor and the City Manager continue to interrupt speakers when they hear something that they don’t like. This type rudeness, lack of decorum, intimidation and pontificating needs to stop. I feel that the City Manager should direct his comments to the City Council only, unless otherwise directed by the Mayor. No one from the public interrupts them when they are speaking. The City Council Chambers are the people’s office, not his High Lordship the City Managers office! He already has one (office) elsewhere in City Hall. He needs to conduct his bully pulpit there, not in the peoples office!

  4. As if things had not become absurd enough with the GSA filing to take McKay Avenue under authority of eminent domain, we now hear from the city of potential outcomes of lawsuits against the city in which the city would end up owning the federal surplus parcel at the end of McKay. If that happens, we will have slipped from absurdity into farce.

    Let’s recap:
    Park district seeks surplus land for park expansion.
    GSA announces surplus land available.
    GSA auctions property to housing developer.
    City rezones property for housing.
    Park district sues the city.
    Housing developer forks over earnest money payments to GSA totaling $300,000.
    GSA repeatedly extends closing date for housing developer.
    GSA files for eminent domain to take state-owned street for developer easement rights.
    State preparing to sue GSA for not following federal coastal law and attempting eminent domain.
    Citizens rezone parcel to open space, thwarting housing developer’s plans.

    Imagine, then, the city ending up owning the property that both the park district and Tim Lewis Communities wanted, and then the city, not the GSA, selling this now-zoned open space parcel to the park district. But since the city would not be obligated to sell it to any specific party, and presumably would need to recoup money from a court judgement that will have inflated the asking price even farther beyond what the park district would pay, maybe the city would hold an auction. If a developer won the auction, they would need an extended closing while we wait for the next election in which voters decide whether to zone it back to residential – or put another way, decide for a third time that this land should be parkland.

  5. Gretchen Lipow says:

    This was the most haphazard council meeting I’ve witnessed. The atmosphere of contempt for
    the public was thick as fog. Our mayor had no control of her behavior nor her city manager’s.
    If the mayor and the manager gave a darn for governing by clear procedures it was sorely absent. As for transparency; where was this amendment written down so the public could follow along as paper work was missing? O what a wicked web we weave when first we practice to deceive!”.
    And indeed the atmosphere was wicked.

  6. Kevin says:

    What happened with the companion measure that was to be considered on July 29? I haven’t seen any news about it.

  7. Wendy says:

    Russo needs to go back and terrorize Oakland! The city manager should live in the city Alameda, that should be the law.

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