They just won’t give up!

If you were one of those who would have liked to see Dania Alvarez re-appointed to the Planning Board, there was a simple argument available to be made:

  • Once appointed, a board or commission member who performs her duties competently should be allowed to retain her post for another term;
  • During her two-and-a half years on the Planning Board, completing an unexpired term, Ms. Alvarez did a competent – or better – job;
  • She thus deserved to be nominated for and appointed to a full four-year term.

The ordinary citizens who supported Ms. Alvarez for re-appointment made very much this argument when the issue came before Council last Tuesday.  It may not have been persuasive to those who believe that a new mayor has the right to nominate her own choices to a board or commission even if it means replacing an otherwise qualified incumbent.  (Presidents do something similar all the time).  But it is a principled argument that can be asserted in good faith and without venom.

Unfortunately, that’s not the way the members of Alameda’s Inner Ring play the game.

Still smarting from the defeat of fellow Inner Ringer Marie Gilmore for re-election as mayor, they decided to treat the occasion as an opportunity to fire off yet another series of salvos in their continuing campaign of vilification against Mayor Trish Spencer.  By not re-nominating Ms. Alvarez, the Inner Ringers harrumphed, Ms. Spencer had ignored tradition and acted out of vengeance.  What’s worse, she had jettisoned a talented public servant so that she could stack the Board with uncredentialed nobodies whose only qualification was loyalty to her, thereby forever discouraging other citizens from volunteering to serve on a board or commission.

All of which was unadulterated balderdash.  In the end, the Inner Ringers not only failed to get Ms. Alvarez re-appointed, they succeeded in embarrassing themselves.

To start with, we found it somewhat ironic to hear self-styled “progressives” argue that Ms. Spencer should follow “tradition” in making nominations to the Planning Board.  In any event, we weren’t quite sure that the “tradition” of re-nominating Board members eligible for another term even existed.  So we contacted the one person who had access to actual data:  City Clerk Lara Weisiger.

As usual, Ms. Weisiger went far beyond what some of our Council members would call her “Charter duties” in responding to a request for information from a citizen.  She prepared a spreadsheet detailing the history of Planning Board re-appointments during the last three mayoral administrations.

You can click on the link below to view the spreadsheet, but the bottom line is that this is not the first time that a Planning Board member eligible for another term has not been re-appointed.  It happened twice when Ralph Appezzato was mayor, and twice more when Beverly Johnson was mayor.  (One caveat, which Ms. Weisiger emphasized:  the data itself does not show why an eligible Board member was not re-appointed – it is possible that she did not re-apply).

Instead, if anyone can be said to have established a “tradition” of reflexive re-appointment, it is Ms. Gilmore, who re-nominated all seven Planning Board members whose terms ended during her tenure to new four-year terms.  In four of these cases, Ms. Gilmore had tapped the Board member to fill a vacant seat for an unexpired term; she then tacked on a four-year extension when the original term was up.  All four of these Gilmore appointees still sit on the Planning Board, and all of them appeared Tuesday to urge Ms. Spencer to treat Ms. Alvarez the same way Ms. Gilmore treated them.

Even if it’s true that Ms. Spencer did not follow Ms. Gilmore’s example, we don’t see the deviation from her predecessor’s practice as particularly significant, especially since Ms. Spencer, unlike Ms. Gilmore, had not chosen any of the incumbents in the first place.  But at least those who pointed out the variance had a factual basis for doing so.  Unfortunately, one of them — Planning Board president Mike Henneberry — chose to go a step further – and managed to leave the facts behind.

“What I don’t understand, what I’ll never understand, is why an eligible person, completely qualified like Dania Alvarez, is not being re-appointed,” Mr. Henneberry said.  He then suggested a reason: “It looks to me like the only thing Dania Alvarez is guilty of is being appointed by Marie Gilmore.”

If Mr. Henneberry was implying that Ms. Alvarez was a victim of an effort by Ms. Spencer to purge the boards and commissions of Gilmore appointees – and it surely sounded like that was what he meant – the evidence flatly contradicts him.

Again, we turned to City Clerk Weisiger for the data.  It shows that Ms. Spencer so far has re-nominated five board or commission members who were originally nominated by Ms. Gilmore.  (One apiece to the disability issues, public arts, social services, and transportation commissions and another to the Housing Authority).  Moreover, based on the applicant lists prepared by Ms. Weisiger, none of the other Gilmore appointees whose terms expired this year and who were eligible for re-appointment applied for a new term.  (This includes Stanley Tang of the Planning Board).  Only a rabid partisan would fault Ms. Spencer for not re-nominating someone who no longer wanted the job.

Mr. Henneberry wasn’t the only Inner Ringer who accused Ms. Spencer of pursuing a vendetta by failing to re-nominate Ms. Alvarez.  Both Planning Board member Lorre Zuppan and Councilwoman Marilyn Ezzy Ashcraft suggested that Ms. Spencer had thrown Ms. Alvarez under the bus because she had disagreed with the Mayor’s political views.  To them, the failure to re-nominate Ms. Alvarez showed that Ms. Spencer was a bully – or worse.

Ms. Zuppan spoke first.  “To disrespect all of the effort that a good-performing member puts into a Council or a commission is really, in my opinion, a matter of bullying,” she said, “because the reason those members are typically excluded is because they have expressed an opinion or a point of view that is not aligned with a person.”  Later, Ms. Ashcraft picked up the same theme.  Noting that the Mayor regularly attended board and commission meetings, Ms. Ashcraft said she had “heard” from “a number of” board and commission members – whom she did not name – that “the mayor told them she attends these meetings to see how they vote and wants to appoint people who share her political position.”

Both Ms. Zuppan and Ms. Ashcraft argued that the failure to re-nominate Ms. Alvarez set a terrible precedent.  Indeed, the Councilwoman devoted most of her prepared remarks to this contention.  She was concerned, Ms. Ashcraft said, about the “chilling effect” of nominating like-minded persons to boards and commissions.  She wanted “independent members” who would make “objective decisions” rather than just “voting the way they think the mayor wants them to in order to be re-appointed.”

As if her own rhetoric weren’t dramatic enough, Ms. Ashcraft went on to read from an email she said she had received from someone whom, once again, she did not identify.  “The failure to re-nominate Ms. Alvarez is a corrosive and divisive decision that sends a warning to all board members to comply with the mayor’s specific agenda or be removed,” Ms. Ashcraft quoted her anonymous correspondent as writing.  “This requirement to mimic the mayor’s views or echo the mayor’s voice or be dismissed is the opposite of representative government.”

Frankly, we are disappointed that Ms. Ashcraft chose to employ this form of argument.  The electorate is rightly skeptical of politicians who defame their opponents by repeating accusations they say they “heard” from unnamed third parties.  Donald Trump shouldn’t be allowed to get away with claiming that President Obama was born in Kenya because “that’s what people tell me.”  Neither should Ms. Ashcraft be permitted to chastise Mayor Spencer for alleged misconduct based on nothing more than hearsay.  As a veteran officeholder, and as a lawyer, she should have known better.

But the real problem with this argument is that it doesn’t make any sense.

Exactly what positions is Ms. Alvarez supposed to have taken to get herself in the Mayor’s dog house?  Ms. Alvarez voted to approve the Site A development at Alameda Point.  So did Ms. Spencer.  Ms. Alvarez voted to approve the plans for the new Emergency Operations Center and fire station.  So did Ms. Spencer.  Ms. Alvarez voted to revise the parking scheme for the Del Monte warehouse project to accommodate the concerns of neighborhood residents.  That’s one of the steps Ms. Spencer advocated during the campaign.

(Of course, Ms. Alvarez was the Board member who nominated Mr. Henneberry for president of the Planning Board.  Maybe that’s what aroused Ms. Spencer’s political ire.)

In any event, the fear that Ms. Spencer (or any mayor) would or could intimate board members strikes us as unrealistic.  For one thing, all of the persons nominated after last December to a four-year term on a board or commission still will be in office when Ms. Spencer’s own term as mayor is up.  They have reason to be afraid of being punished by Ms. Spencer for their votes during the next three years only if they’re sure she’ll run for, and win, re-election in 2018.  Otherwise, the decision about whether to re-nominate them will fall to someone else.

In addition, we think it unlikely that board members actually would seek to tailor their votes to please the Mayor.  We can’t imagine, for example, a Recreation and Park commission member wondering, What Would Trish Want Me To Do? before voting on whether to approve the preliminary design for the Ralph Appezzato Parkway section of the Cross Alameda Trail.  (This was an actual item on a recent Rec/Park commission agenda).  Nor can we imagine, say, John Knox White or David Burton voting in a particular way because they hoped their vote would make Ms. Spencer happy and prompt her to re-nominate them.  (Indeed, we suspect Messrs. Knox White and Burton would regard Ms. Spencer’s desire for a particular outcome as an incentive to vote the other way).

It was bad enough that the Inner Ringers chose to promote Ms. Alvarez by portraying her as a victim of a vindictive mayor.  But what was truly disturbing Tuesday was how they dealt with the two citizens whom Ms. Spencer did nominate to the Board, David Mitchell and Sandy Sullivan.

Oh, the digs were subtle.  For example, Mr. Knox White said he couldn’t comment on the qualifications of the nominees because he didn’t know them “and there’s very little in their applications.”  In fact, if you compare the applications submitted by Mr. Mitchell and Ms. Sullivan with the ones submitted by Mr. Knox White himself in 2008 and 2013, you’ll find that they provided more background information than he did.  (Of course, Mr. Knox White may have assumed that he didn’t need to put anything more in his application because “everyone knew” him anyway.)  True, the nominees’ applications didn’t reveal any long-standing affiliation with the Alameda Democratic Club or the League of Women Voters, but that would only disqualify them from membership in the Inner Ring, not for service on the Planning Board.

(Like Ms. Ashcraft, Mr. Knox White also indulged himself in a political tactic worthy of Donald Trump.  He didn’t know Mr. Mitchell or Ms. Sullivan, he said, but he did know whom Ms. Spencer had appointed to the Rent Review Advisory Committee and the Open Government Commission, and if her Planning Board nominees were anything like her other appointments, watch out!  Mr. Knox White didn’t name these disreputable appointees, but it was not too hard to figure out to whom he was referring.  What was difficult to justify was his assertion that Karin Lucas had “led the fight against affordable housing in the ‘80’s” – in fact, Ms. Lucas had endorsed a ballot measure imposing a moratorium on further construction of government-subsidized rental housing – or his claim that Paul Foreman had “questioned the efficacy and the need for our Sunshine Ordinance” – which Mr. Foreman told us was a “complete fabrication.  I could not and would not accept a post on the Commission if I felt that way.”)

After the public speakers finished, Councilman Jim Oddie was ready to administer the coup de grace.  Mr. Oddie announced that, unlike Mayor Spencer, he had not had “the opportunity to have a discussion with any of the candidates” – adding, “behind closed doors,” as if Ms. Spencer would have met them on the street corner – and wanted to do so before he voted.  Councilman Tony Daysog quickly suggested postponing the vote so that any Council member who wanted to meet with the nominees could do so.  No, Mr. Oddie replied, “I’d like to do that in public.”

As far as we – or anyone on the dais – knows, a Council member never previously had sought to subject nominees to a board or commission to public cross-examination at a Council meeting.  What was Mr. Oddie up to?

According to the Councilman, he was insisting that Mr. Mitchell and Ms. Sullivan present themselves at the podium – at least, he didn’t demand that they be sworn in – because “the public has a right to hear the philosophy of what people who will be making important decisions affecting everyone’s future, whether it be traffic or development or anything like that, here in public in a transparent manner.”  If that were truly his intent, he would have been well-advised to turn the questioning over to a lawyer who tries cases.  Had he done so, the nominees would have been spared questions like:  “How would you adjudicate on an issue that you might philosophically disagree with but there is no legal reasoning that would allow you to vote against it?”  (At this point, we could not restrain ourselves from shouting, “Objection – unintelligible” at the TV screen, and we swear we heard back a one-word answer: “Sustained!”)

But Mr. Oddie’s goal in interrogating the nominees may well have been more than simply exploring their philosophy.  One of the multiple parts in his last question  (“Objection – compound.  Sustained!”) asked the nominees to identify Planning Board decisions with which they differed.  Mr. Mitchell responded that the proposal to move the Harbor Bay Club raised an “interesting issue.”  He added that “most people support leaving it where it is.”  Mr. Oddie, of all people, should have left that answer alone.  Instead, he addressed a follow-up to both nominees: “Do either of you have an opinion on that – Harbor Bay Club?

This is the same Jim Oddie who refused during the campaign to take a stance on the Harbor Bay Club issue on the grounds that he was legally barred from expressing an opinion about a matter he might later have to vote on.  Yet now he was asking the nominees to answer the very question he had deemed it illegal for him to address himself.  This was too much even for Ms. Ashcraft, who sputtered a protest, to which Mr. Oddie replied, “All you need to say is that it’s going to come before me and I don’t have an opinion.”  City Attorney Janet Kern then jumped in with a lecture about why the nominees should not reveal their views in response to Mr. Oddie’s question.

Perhaps Mr. Oddie just got caught up in the heat of the moment.  But we have to wonder:  Was he asking the nominees a question that he knew was improper in the hope that, if either was foolhardy enough to answer it, he could argue that the nominee was ignorant of a Board member’s legal duties and thereby unqualified to serve?  If so, Mr. Oddie wins the prize for having sunk the lowest among the Inner Ringers who tried to derail the nominations.

As it happens, both Mr. Mitchell and Ms. Sullivan took the Councilman’s questioning in stride and handled themselves well.  Neither committed any gaffes – could this, too, have been what Mr. Oddie was hoping for? – and their answers demonstrated that they, like Ms. Alvarez, will take their responsibilities as Planning Board members seriously.

In the end, it was all for show anyway.  Ms. Spencer stood by her nominations.  Councilman Daysog praised Ms. Alvarez, but then, trotting out the familiar cliché about elections having consequences, voted to approve Ms. Spencer’s choices.  Vice Mayor Frank Matarrese added the third vote, saying that “it will be helpful to have new faces” on the Planning Board.

As for the Inner Ringers, we can only imagine that they left the meeting re-filling their quiver with arrows to replace those that had failed so abysmally to hit their mark.


Planning Board re-appointments since 1992 (prepared by City Clerk Lara Weisiger): Planning Board Reappointments – Since 1992

Lists of applicants for boards and commissions: List of applicants (05-05-15)List of applicants (06-02-15)List of applicants (06-02-15)List of applicants (07-21-15)List of applicants (09-01-15)

Sullivan and Mitchell applications for Planning Board: PB – Sullivan and Mitchell

Knox White applications for Planning Board: DK PB applications

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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6 Responses to They just won’t give up!

  1. Steve Gerstle says:

    This is what our City Charter says about appointment to the Planning Board. Everything else is make-believe.

    Sec. 10-4.1. The City Planning Board shall consist of seven members. Upon
    nomination of the Mayor, the Council shall appoint, between May 1 and July 1 of each
    year, such members as are necessary to maintain a full board, for terms commencing on
    the first day of July following such appointment and continuing for four years and thereafter
    until the successor of such member is appointed and qualified; provided, however, that no
    more than two terms shall expire in any year other than by resignation of a member.

    Click to access 2012_alameda_city_charter_0.pdf

  2. Bill2 says:

    Well, once again we find that City Clerk Lara Weisiger is competent and always does great work in responding to citizens. She represents the best of our city government. I do not have an opinion about commissioners or board members being re-nominated, but I do believe that any new commissioner or board member who is being considered as a nominee should be interviewed by at least two current commissioners or board members. We waste so much time with “newbees” who come on board and know so little about the issues and the process. The process must be more productive and less political if we ever want to move forward.

  3. David says:

    The charter provides the board/commission members can be removed with 3 votes. Councilmembers can also challenge board nominations.

    Jim Oddie is a coward and a ninny if he refuses to avail himself of those provisions, and instead whines and complains about “transparency” as he is doing.

  4. Tom says:

    As always I love to read your musings.

    The reality as you so poetically state is “to the victor belong the spoils!”

    Hopefully the FireDepartment lobby which controls much of our city will be further neutralized over the coming few years….

    Thanks for your reviews,


  5. vigi says:

    This post says what I was thinking…much better than I could have said. Thanks, Bob!
    RE: JKW application. What is “TALC”? It doesn’t Google well.
    Why doesn’t JKW just explicitly state that he is paid by Plan Bay Area?

  6. vigi says:

    Oh, never mind, I found it. TALC is the old name for TransForm

    Click to access 2009-2012%20Strategic%20Plan.pdf

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