The not-so-artful dodgers

Anyone wanting to know what the incumbents running for reelection thought about three controversial issues important to Alamedans came away disappointed from Thursday’s candidate forum sponsored by the Alameda Sun and The Alamedan.  Indeed, a viewer or listener concerned about these issues might have been downright annoyed by the officeholders’ performance.

Getting Crab Cove into the hands of the East Bay Regional Park District?  Sorry, can’t comment, said Mayor Marie Gilmore and Councilman Stewart Chen, D.C.  There’s still pending litigation.

Moving the Harbor Bay Club to the Business Park?  Sorry, can’t comment, said Ms. Gilmore and Dr. Chen.  If I said anything I’d be disqualified from voting if the matter ever came before Council.

Using rent control to address the problem of rising rents?  Sorry, can’t comment, said the Mayor and Councilman.  I just don’t have enough information to be able to form an opinion.

The Merry-Go-Round thinks the voters deserved better than this.

We’ll start with Crab Cove.

Back in 2008, voters passed Measure WW, which allocated funds for EBRPD to purchase the 3.89-acre Crab Cove parcel located next to Crown Beach from the federal government.  But the feds turned down an offer from the Park District and instead agreed to sell the land to Tim Lewis Communities, a Roseville-based developer who proposed to build 48 homes on the site.  Council then accommodated the developer’s plans by zoning the property residential.

The feds, the developer, and the Council didn’t reckon with the opposition the deal would spark from EBRPD, which sued to void the zoning; from park supporters, who gathered signatures to put an initiative re-zoning the parcel to open space on the ballot, or, perhaps most importantly, from the State of California, which refused to transfer an access easement over McKay Avenue to a non-governmental entity.

This June, City Council bowed to public pressure and adopted the citizen initiative.  But there still remained the task of getting the land transferred from the federal government to the Park District.  So, open-space advocates wanted to know from the candidates, shouldn’t the City oppose the feds’ attempt to wrest title to McKay Avenue from the State in order to give an easement to Tim Lewis?

The Mayor got the first crack at answering.  She began with the Russo/Gilmore administration’s standard protestation that, because the City doesn’t own the land, “we don’t have a seat at the table.”  But further affiant sayeth not.  Because EBRPD’s suit against the City was still pending,“I’m limited in terms of what I can say,” the Mayor asserted.  So, after expressing her “hope for a good resolution and outcome,” she sat down.

Then it was Councilman Chen’s turn.  He tried to have it both ways: “I’d like to say, expand the park,” he began. “I’d like to say, leave it open space.  But, because of pending litigation, I can’t say it.”  He spent the rest of his time bragging about the decision by Council, with an election looming, to adopt the citizen initiative.  “We acted properly according to the citizens’ will,” he declared, perhaps forgetting that he had put his name on an earlier op-ed piece belittling the park supporters’ arguments.

This is not the first time that we’ve heard a politician dodge a question by citing “pending (or potential) litigation.”  But the purported justification usually is that the politician doesn’t want to be seen as attempting to use her office to influence the legal process.  (To cite a recent example: President Obama refusing to comment on whether the police officer who shot the unarmed teenager in Ferguson, Missouri, should be indicted).  We suspect that the federal and state court judges hearing the Crab Cove cases wouldn’t care a whit about any opinions expressed by Mayor Gilmore or Councilman Chen.

In fact, as far as we know, there is no statute or ethical rule that prohibits a public official from commenting about an issue involved in a lawsuit – or even about the lawsuit itself.  Lawyers for the parties are ethically barred only from making statements that have a “substantial likelihood” of “materially prejudicing” the proceeding.  Their clients can say whatever they want.  And public officials don’t give up their right to free speech when they take office.

City Manager John Russo must share this view.  Remember how, when the EBRPD suit was filed, he gave an interview to the Chronicle denouncing the suit as “evidence of an agency that’s arrogant and out of control” and followed it up with an op-ed in the Sun calling the suit “irresponsible” and an “arrogant disregard for your tax dollars.”

Mr. Russo, of course, is an appointed, not an elected, public official, but one could argue that there is even less reason for Council members than for the City Manager to restrain themselves from speaking out simply because a suit has been filed.  The court with which they ought to be concerned is the court of public opinion.

Next, the Harbor Bay Club.

In April 2013, developer Ron Cowan, unsuccessful in his effort to get the City to swap the Mif Albright par-three golf course for vacant scrub land so that he could build a new residential development, announced a new scheme:   He now wanted to tear down the existing Harbor Bay Club and use the land as the site for 80 new houses (or, maybe, he said later, for a hotel).  A brand-spanking-new Club would be built on a parcel in the Business Park.

Cowan’s announcement caused an uproar among Harbor Bay residents, who formed a grassroots organization known as Harbor Bay Neighbors to oppose him.  Among other things, the group argued, Cowan’s plan was inconsistent with the longstanding Master Plan for the Harbor Bay Isle development.  So why, Harbor Bay residents wanted to know from the candidates, should the Master Plan be changed to accommodate Cowan’s plan to move the Harbor Bay Club?

This time, Councilman Chen got the question first.  “I really envy candidates who are not in office,” he began.  “You’re at will to speak your mind.”  Not so for him.  “I can’t give an opinion,” he asserted, because, if he did, “when that issue came before Council, I’d have to recuse myself.”  To answer the question, he said, would be “irresponsible.”

Then it was Mayor Gilmore’s turn.  It would be “ethically wrong” for her to address the issue, she said.  Not one, but two, unidentified “city attorneys” had advised her that, if she took a public stand, she would be disqualified from voting on any application later filed by Cowan.  Indeed, she gratuitously advised the non-incumbent candidates to keep their mouths shut, too.

We confess that our initial reaction to the position taken by Ms. Gilmore and Dr. Chen was astonishment.  It was akin to contending that, if Nancy Pelosi made a speech endorsing a higher minimum wage, she’d be disqualified from later voting on a bill to raise the minimum wage.  After the meeting, prompted by comments made by Vice Mayor Marilyn Ezzy Ashcraft and her lawyer-husband, Howard, we decided to look into the legal issue further.

What we found was this:  There is indeed a California Court of Appeal case invalidating a Planning Board decision to deny a project application because a Board member previously had published an article critical of the project in a neighborhood newsletter.  Presumably, this is the case that her legal consultants told the Mayor about.  But we would have hoped that they also would have called her attention to – or, as a Boalt Hall graduate, she might have discovered herself – a case decided by the California Supreme Court suggesting that a different rule applies to statements made during an election campaign.

In that case, a developer challenged the denial by a city council of a planned unit development permit on the grounds, among others, that before the meeting two councilmen had declared their opposition to the project publicly, including in response to a question at a candidates’ forum.  The Supreme Court began its analysis by stating, “A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance.”  It then noted that many of the allegedly disqualifying statements had been made during a campaign and pronounced this rule:  “Campaign statements . . . do not disqualify the candidate from voting on matters which come before him after his election.”  The Court went on to hold that evidence of these statements was not even admissible in a suit challenging the decision.

We are always skeptical when a politician cites “advice of counsel” as the reason for avoiding a question.  (In the securities litigation world, asserting such a defense has been held to waive the attorney-client privilege).  But even if it’s otherwise legitimate to make this excuse, we’d hope that the “advice” upon which the politician relies at least gets the law right.  That doesn’t seem to the case here.

Finally, rent control.

Beginning in February 2013, when Council heard about an elderly couple who were forced to move from their Benton Street apartment after receiving notice of a 67 per cent rent increase, the issue of rent control – aka, more palatably, “rent stabilization” – has garnered an increasing amount of public attention.  By this April, when the Planning Board considered the new Housing Element, activists were starting to call for action. Renewed Hope, seconded by the East Bay Housing Organizations, urged the City to commit to researching other cities’ rent stabilization ordinances and holding meetings “on the possible adoption of an ordinance in Alameda to alleviate excessive rent increases and related displacement.”

Predictably, the politicians punted.  Planning Board member John Knox White convinced his colleagues – on a 4-3 vote – to include a section in the Housing Element providing for a “housing costs and rent task force.”  Council then took this provision out of the Housing Element and directed staff to “prepare a proposal” for a task force.  Staff did as asked, but last Tuesday Council turned down staff’s recommendation.  Instead, on a 3-2 vote, with the Mayor breaking the tie, Council accepted a proposal made by Dr. Chen to let the Councilman’s good friend, Jeff Cambra, a former president of the League of Women Voters, lead a “community process” to do, well, something.  A report – of some kind – is due on December 2.

This delay may have frustrated tenant advocates eager to see Council finally get off the fence.  So they had a simple question for the candidates:  Are you for or against rent control?

The incumbents responded by bobbing and weaving. “We need to know how bad we have it in this town and how to address it,” Councilman Chen declared.  “Is it rent control? Is it rent stabilization? I can’t tell you.  I really don’t know.”  He then urged citizens to participate in whatever “community process” Mr. Cambra will lead.  “The City Council would like to hear about possible solutions and recommendations so we can set the right policy for this issue,” he said.

The Mayor was next.  Does she favor rent control? “I don’t know yet,” she said.  “I don’t have the information.”  She’d “heard,” Ms. Gilmore conceded, about rent increases that she considered “a problem,” but “I don’t know if these are a few bad-apple landlords or if the problem is a lot more basic than that.  Depending on the size of the problem, that is going to dictate the kinds of solutions we will use to solve the problem.”

At first glance, the Mayor and Councilman’s position seems prudent.  We all want decisions to be based on data, don’t we?

But wait a minute.  Isn’t information about the rental market in Alameda already available?  Indeed, it is.  The Background Report prepared by City staff and submitted to Council in connection with the new Housing Element – and cited by candidate Jim Oddie Thursday night – contains a wealth of statistics about rents in Alameda, including tables comparing average rents with “affordable” rents.  There’s also the anecdotal evidence presented to Council this July by Renewed Hope from 189 renters who responded to the group’s survey.

It was particularly ironic for the Mayor and Dr. Chen to cite the paucity of information as their excuse for not answering, since their votes Tuesday actually delayed the collection of additional hard evidence.

The proposed staff-assisted task force would have, among other things, performed “a quantitative analysis of rental rates, vacancy rates, absorption trends, and the length of residency and race/ethnicity of residents in different types of rental units.”  The “community process” championed by Dr. Chen and endorsed by the Mayor isn’t designed, as far as we understand it, to gather data.  Instead, Mr. Cambra will report to Council in December on the type of data the “community” thinks should be collected.  And then staff can begin the real work of investigating the facts.

The dodge by Ms. Gilmore and Dr. Chen is even more dubious because the candidates were asked only about what they thought – as a policy matter – of rent control as a solution to the problem of rising rents.  To that kind of question a politician can be expected to have an answer.

Indeed, former Councilman Frank Matarrese did have an answer:  He’d researched the issue, Mr. Matarrese said, and “I haven’t seen any rent control law which has truly been effective in stabilizing or lowering rents.”  Likewise, Mr. Oddie, while agreeing that more data would be useful, was willing to opine that any solution must “respect” the rights of both tenants and property owners:  “If they can’t make money,” he noted, “they can’t continue to supply the housing stock that we need.”

Mr. Matarrese and Mr. Oddie steered clear of tying themselves down to any particular proposal, yet at the same time they provided insight into their policy views.  That’s more than voters got from the incumbents.

By ducking the questions they did, Ms. Gilmore and Dr. Chen made sure that they would say nothing that might offend developers like Ron Cowan and Tim Lewis or business groups like the Chamber of Commerce and the Association of Realtors.  But it would take a cynic to suspect that the incumbents’ refusal to take a position on Crab Cove, Harbor Bay, or rent control was motivated by their political self-interest.  For all we know, they were simply being circumspect.

Mayor Gilmore and Councilman Chen didn’t dodge every question asked of them at the candidate forum.  Both were ready, and eager, to promise that they wouldn’t pick up the phone and call IAFF Local 689 president Jeff DelBono before making a decision (or at least, not every time).  And both were quite willing, and able, to discuss what they regarded as the many achievements of the Russo/Gilmore administration in the last four (Gilmore) or two (Chen) years.

As Councilman Chen put it in his opening statement,

We have it good here in Alameda.  This current City Council and administration, we have done a lot. . . .  We have good schools, over 20 parks, and we’re building more parks.  We have good public services.  We have responsive public services.  We have a low crime rate.  All of these good things are happening in Alameda; it’s because of the current administration.

We guess that, with an assurance like that, any voter who demands answers to questions about controversial issues is just being ungrateful.


Staff report re rent control task force: 2014-09-16 staff report re rent task force

City of Fairfield v. Superior Court, 14 Cal.3d 768 (1975): City of Fairfield

About Robert Sullwold

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

3 Responses to The not-so-artful dodgers

  1. notmayberry says:

    Mayor Gilmore has held several offices, both elected and appointed, for almost 2 decades. For her to say “I don’t know…if there are just a few bad apples or if the problem is a lot more basic…”; is tantamount to saying she really hasn’t learned anything while sitting in public office for the last 16 years. She is her own best argument for voting her out of office.

  2. Irene says:

    Mr. Sullwold, Your legal research is greatly appreciated. I’ve been going to Alameda’s candidate forums for about 25 years and this was the first time incumbents said they were forbidden by law to discuss issues that might come before them later. Even the question about Crab Cove dealt with the state Attorney General’s action, not the action between the city and the park district.

  3. boathouse noodles says:

    Whoops. Rob S: tax attorney’s legal analysis is wrong again. the courts just made clear he ain’t got a clue when it comes to the law as it relates to elected and public officials, hope his clients got better tax advice. Luckily, others who don’t pretend to have legal knowledge are able to scope out the truth and understand it and actually inform the community: and it was done without footnotes.

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