I abstain!

We weren’t surprised that Mayor Trish Spencer abstained from voting at the October 7 special Council meeting on the “advisory motion” to retain the current General Plan and zoning designation for the Harbor Bay Club site.

Ms. Spencer did not explain her reasons, but, from the very beginning of the meeting, staff had made it clear – more than once – that the motion was utterly ephemeral and essentially meaningless.

“You individually can say what you think – you as a group can pass a motion saying, We kinda like it the way it is – but all you’re doing is expressing your views about the situation today, about the General Plan today,” City Planner Andrew Thomas told the Council members.  “You could say something today; tomorrow, somebody could walk in and say, What about this idea for this piece of property, and you as a Council member could say, Oh, my goodness, now that I see that, I hadn’t thought about that opportunity, I change my mind.”

Under these circumstances, who could blame Ms. Spencer for declining to take part in a futile exercise?  (Don’t answer that:  there are some who begin foaming at the mouth at the very mention of the Mayor’s name).

Indeed, for a time, it seemed as if Ms. Spencer would not be alone in abstaining but would be joined by an unlikely ally, Councilman Jim Oddie.  “It’s probably the feel-good thing to say, Yes, I want to affirm the [recreational] use,” Mr. Oddie said.  “But the reality is, just like the rent ordinance, it has no teeth, it can’t really do anything.”

Eventually, perhaps after counting the red shirts with “No Rezone” buttons versus the blue shirts with “We Want a New Club”  slogans, Councilman Oddie decided to cast a vote – in favor of the motion – anyway.  Even so, he took pains to point out that neither side should read anything into his vote.  “So I want to be careful not to raise expectations that, by doing this, we are basically guaranteeing that there’s some future use on that site that the red people want or that the blue people want,” he said.  “Nothing we do today, whether we vote for this motion or not, or whether we do nothing, is going to guarantee that the current use continues.”

If the Mayor was the kid sitting in the corner with her hands over her mouth, Mr. Oddie was the kid raising his hand but keeping his fingers crossed behind his back.

All of which got us to wondering:  Just how often do our Council members abstain from voting on a matter before Council?  Why do they abstain?  When should they?

(Before we turn to that subject, one other note about the special Council meeting.  Having originally proposed to tear down the existing Harbor Bay Club and build 80 luxury homes, developer Ron Cowan announced that he might want to use the site for a hotel and conference center instead.  The accepted version of the story was that the groundswell of objections from neighboring homeowners to further residential development had prompted Mr. Cowan to propose the alternative plan.

(Mr. Cowan’s latest attorney, Marshall Wallace, gave a somewhat different account at the special meeting.  In fact, Mr. Cowan had decided to consider using the site for a hotel and conference center because former Mayor Marie Gilmore and former City Manager John Russo, in what apparently were private conversations with the developer, had “urged us to pursue that particular use.”  Until the special meeting, the role played by Ms. Gilmore and Mr. Russo in working with Mr. Cowan to put together his plan never had been publicly revealed.)

To get the answers to our abstention questions, we started by searching the 2015 Council minutes through the September 15 meeting (the last for which minutes are available) for instances in which a Council member abstained from voting on a substantive motion, as distinguished from, say, a motion to continue the meeting past 10:30 p.m. or 11 p.m. (Note: We didn’t count abstentions at closed sessions, since the minutes of those meetings are secret).

Here’s a chart showing the results:

Date Motion Abstainer Outcome
01/20/15 Direct staff to analyze issues about rental housing market Daysog Passed, 3-1
01/21/15 Direct staff to prepare budget in accordance with Matarrese’s “principles” Oddie Passed, 4-0
04/07/15 Re-establish Economic Development Commission Ashcraft Failed, 2-2
04/07/15 Establish “Mayor’s Economic Development Advisory Panel” Ashcraft Failed, 2-2
05/05/15 Use same procedure for appointments to regional boards as for City boards Oddie Failed, 2-2
05/05/15 Direct City Attorney to prepare “guidelines” for representing City on regional boards Daysog Passed, 3-1
09/15/15 Approve nominations to boards and commissions, including Carol Gottstein Oddie Failed, 2-2
09/15/15 Spend $800,000 on “tenders” and hold off hiring emergency water system consultant Daysog Passed, 4-0

As the chart shows, Councilman Oddie and Councilman Tony Daysog tied for the most abstentions at three apiece.  Councilwoman Marilyn Ezzy Ashcraft abstained twice – both times on the same agenda item – but, through September 15, Mayor Spencer had never abstained, nor had Vice Mayor Frank Matarrese.

None of Councilman Daysog’s abstentions affected the outcome on a motion – all three times, it passed easily without his vote – but two of Councilman Oddie’s three abstentions left a 2-2 deadlock, which resulted in the motion failing.  The same is true for both of Ms. Ashcraft’s abstentions.  It may be just coincidence, but in each of these instances the motion that failed involved the scope of Mayor Spencer’s appointment powers.

Let’s start with Mr. Oddie.Oddie headshot

After taking office, Ms. Spencer appointed herself as the City’s representative to the Alameda County Transportation Commission.   At one of her first ACTC meetings, she made comments that the Inner Ringers found ideologically incorrect.  Rather than chastise the Mayor directly – that role, as usual, fell to the anti-Spencer bloggers – Ms. Spencer’s political opponents took an indirect route and sought to eliminate her right to choose unilaterally whom to appoint to regional boards and commissions (a right enjoyed by her more reliable predecessor, Ms. Gilmore).

Accordingly, Ms. Ashcraft submitted a Council referral proposing that appointments to regional bodies be made using the same procedure as appointments to City boards and commissions – i.e., Council had to approve the Mayor’s nominees.  If that proposal were adopted, three Council members could veto Ms. Spencer’s nomination of anyone – including herself – who could not be counted upon to tow the party line.

Council considered the referral at its May 5 meeting.  When the matter came to a vote, Ms. Ashcraft and Mr. Daysog voted, Yes; the Mayor and Vice Mayor voted, No.  Without explanation, Mr. Oddie abstained, and, by doing so, he caused the motion to be defeated.

Mr. Oddie’s second decisive abstention occurred a few months later when, among a host of other nominations, Ms. Spencer selected Carol Gottstein, M.D., a long-time advocate for the disabled, for the Committee on Disability Issues.

On the afternoon of the September 15 Council meeting at which the nominations were to be voted on, Planning Board chair and Inner Ring-leader John Knox White sent an email to all Council members (with copies to two anti-Spencer bloggers and a newspaper reporter) accusing the nominee of having been “caught trespassing in City Hall West last spring on more than one occasion and accessing employee offices, email and files in the Public Works Department.”  Harrumphing that “[t]he utter disrespect of City Staff who’s [sic] work lives were violated is beyond belief,” he demanded that the Mayor withdraw the “completely inappropriate” nomination, and, if she didn’t, that Council reject it.

(The anti-Spencer bloggers dutifully republished the accusations made by Mr. Knox White, and the Alameda firefighters’ union posted a link on its Facebook page.  A week later, apparently not satisfied that he had disseminated the scurrilous story widely enough, Mr. Knox White published an op-ed piece in the Alameda Journal repeating it without naming Dr. Gottstein or including her by-then public rebuttal.  For his part, the newspaper reporter ignored the “tip” and never wrote anything about Dr. Gottstein.)

At the meeting that evening, none of the Council members brought up Mr. Knox White’s accusations (or gave Dr. Gottstein the opportunity to respond to them).  But when a motion was made to approve the entire list of nominees, including Dr. Gottstein, Council split 2-2, with Mayor Spencer and Mr. Daysog voting, Yes, and Ms. Ashcraft and Vice Mayor Matarrese voting, No.  Again, without explanation, Mr. Oddie abstained, and thus caused the motion to fail.

What motivated Mr. Oddie to abstain in these two instances?  He didn’t say, so we can only guess.  To take a charitable approach, perhaps Mr. Oddie thought that the Inner Ringers were going just a little bit too far in their efforts to slap down Ms. Spencer by interfering with her appointment powers.  (“To the victor goes the spoils – right?” he said during the Council discussion of Ms. Ashcraft’s referral).  Of course, he didn’t want actually to support the Mayor – or to appear to be doing so – but he may have withheld the vote needed for a majority as a way of signaling his discomfort with the machinations of his confreres.  And by abstaining he effectively killed Dr. Gottstein’s nomination anyway.

Now to Ms. Ashcraft.Ashcraft head shot

Back in October 2013, staff had convinced Council to eliminate the Economic Development Commission, which had been set up to provide citizen advice to Council about development issues.  At the time, staff recommended replacing the EDC with a blue-ribbon “advisory panel” whose seven members would be appointed by the mayor.  The former Council duly voted to abolish the EDC, but, after the election, Vice Mayor Matarrese submitted a Council referral re-establishing the commission.  Staff responded by renewing its recommendation for creating a “Mayor’s Economic Development Advisory Panel” instead.

At the April 7 Council meeting, Mr. Matarrese made the case for his referral, but his motion to re-establish the EDC got only two votes (his and Mr. Oddie’s).  Mayor Spencer and Councilman Daysog voted, No, and, without explanation, Ms. Ashcraft abstained.  Mr. Daysog then moved that Council accept the staff recommendation to create a mayor’s advisory panel.  Only Ms. Spencer supported him.  Before the vote was completed, Ms. Ashcraft jumped in to state that she would be abstaining and started to explain that she was “troubled by aspects of both proposals.”  Ms. Spencer cut her off and called for the votes opposing the motion.  Mr. Matarrese and Mr. Oddie voted, No; Ms. Ashcraft remained silent, and the Mayor proceeded to the next item.  Council thus ended up doing neither what Mr. Matarrese nor staff suggested.

What motivated Ms. Ashcraft to abstain from voting on this issue?   Her decision is perplexing because she had been Vice Mayor when the staff recommendation to eliminate the EDC and replace it with a mayor’s advisory panel came before Council in October 2013 and, at that time, she voted to abolish the commission.  Why not vote “No” again?  It is even more perplexing because it appeared as if, when she interrupted the voting on April 7, Ms. Ashcraft was about to explain why she opposed both proposals.  If so, why not vote “No” on establishing a mayoral advisory panel, too?

So we’ll venture another guess:  It is widely believed that Ms. Ashcraft intends to challenge Ms. Spencer for Mayor in 2018.  She agreed with staff that the EDC had outlived its usefulness, and the idea of an advisory panel appointed by the mayor was fine with her – as long as the mayor wasn’t Ms. Spencer.  By abstaining when Council split, 2-2, she deprived Ms. Spencer of the opportunity to ingratiate herself with the business community, but she remained free to go along with a mayoral advisory group if the right person later came to sit in the mayor’s chair.

We fully realize that our speculation about Mr. Oddie’s and Ms. Ashcraft’s reasons for abstaining may be totally off base.  But their failure to state those reasons for the record enables us (and others) to conjecture at will.  If the politicians want to protect themselves, they ought to tell us – and not as the voting is taking place – why they’re doing what they are.

One thing is clear:  based on the evidence in the record, neither Mr. Oddie nor Ms. Ashcraft – or, for that matter, Mr. Daysog – was legally obligated to abstain when they did.  The Political Reform Act sets forth the circumstances under which an elected official is disqualified from voting on a matter coming before a legislative body because of a conflict of interest.  Comprehensive regulations adopted by the state Fair Political Practices Commission implement the statute.  There is nothing in the public record to suggest that any of the three Council members who abstained suffered from any disqualifying conflict.  Their decisions were strictly voluntary.

So when should a Council member abstain?  We fleetingly thought of posing this question to City Attorney Janet Kern, but then we remembered that she does not deign to take questions from members of the public.  Fortunately, the California League of Cities is not so restrictive.  It publishes a monthly magazine that, though its target audience is municipal government officials, is available to anyone.  As it happens, the April and June 2014 issues contained an article written by the non-partisan Institute for Local Government on just this topic.

The article offers no sympathy for politicians who use abstention as a dodge.  “It may be tempting to abstain because of concerns about making an unpopular decision or simply not knowing which decision is best,” the article states. “Nevertheless, making decisions is what officials are elected to do.  It is manifestly unfair — and unethical — to abstain or otherwise put one’s colleagues in the position of taking the heat for a necessary but unpopular decision.”

The decision whether to abstain, the article advises, “involves the exercise of some degree of judgment or choice” and implicates two competing values.  One is “fulfilling your responsibility as an office-holder to make decisions – which, of course, is what your constituents elected you to do.”  The other is “preserving the public’s trust that the agency’s actions are based on principles of fairness and what best promotes the public’s interests – as opposed to decision-makers’ self-interests or those of their friends and family.”  The article tells an elected official to “put yourself in the public’s shoes.  What would you think if you were a member of the public analyzing the situation?  If you question the ability to put personal interests and loyalties aside, you may want to abstain.”

We don’t know – because they didn’t say – whether Mr. Oddie, Ms. Ashcraft, or Mr. Daysog asked themselves this question before they decided to abstain.  And if they did, we can’t imagine what “personal interests and loyalties” stood in the way of voting.  But we can think of at least one example where adherence to that standard might have led to abstention – but didn’t.

Yes, as our loyal readers may have suspected, we’re talking about Mr. Oddie again.  In the last election, Mr. Oddie was the candidate hand-picked by the Alameda firefighters’ union to fill the Council seat being vacated by the termed-out Lena Tam.  The union not only endorsed Mr. Oddie but it sponsored a fundraiser for him and set up a phone bank for him and his IAFF Local 689 slate-mates.  In addition, the union included Mr. Oddie in its slate mailer and sent out a special letter signed by its president crediting him for having saved Alameda Hospital.  All told, the “non-monetary contributions” by the IAFF Local 689 PAC to Mr. Oddie’s campaign totaled $11,799.57 – more than the entire amount spent by Ms. Spencer on her successful mayoral bid.

Less than six months later, Mr. Oddie was a member of Council when former City Manager John Russo presented proposed new public safety union contracts that guaranteed wage increases for the firefighters and cops for five out of the next six years regardless of how well or poorly the City performs financially.  As the ILG might have put it, “What would you think if you were a member of the public analyzing the situation?”  Well, we know quite a few people who might have doubted Mr. Oddie’s “ability to put [his] personal interests and loyalties aside” when asked to approve a lucrative contract for members of the union that played such an instrumental role in getting him elected.

If the Councilman asked himself the question suggested by the article, he didn’t say so.  But he did vote to approve the MOUs.  We guess the ILG is right:  Abstention is a judgment call.  But some judgment calls seem to us to be easier than others.  And this may have been one of them.

Sources:

Institute for Local Government “Deciding When to Step Aside From the Decision-Making Process: Abstentions And Disqualifications” (Western City magazine, April and June 2014 issues): CLC article re abstention (Part 1)CLC article re abstention (Part 2)

Minutes of City Council meetings are available at: https://alameda.legistar.com/Calendar.aspx.

 

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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5 Responses to I abstain!

  1. Dennis Laine says:

    I, expect all of the elected officials to, either vote yea or nay on each item on the agenda. Except, when there is a legitimate legal conflict of interest. Only then should they abstain. Each one of these council members were elected to make decisions. Not just on “the good, the bad, and the ugly” items. They (council members) were elected to vote, not to run and hide behind abstaining on an item, that may be unpopular or for future political gains.

  2. BMac says:

    So you’re rationalization for the Mayor’s abstention is that it was a pointless vote and that she didn’t want to dignify a useless exercise with a vote? Were you watching the same meeting as the rest of us? The mayor made very clear that she thought the vote could prove monumental if determined to be pre-judging. Her abstention was clearly out of fear rather than disdain or indifference.

    I also noticed that member Daysog’s abstentions all come when it is irrelevant to passage or failure. Those non votes all felt much more opportunistic at the time than the others’ abstentions which clearly had ramifications that those members and watchers seemed quite aware of.

  3. carol says:

    ​Thanks, Robert for a fairly written article. It is pretty hard to keep up with all of JKW’s mudslinging. or catch it in the various forums where it is posted.

    Mr. Knox White has never contacted me before or since, regarding the 77-page “information packet” he circulated to each member of the city council and media just 2 hours before the 7 pm city council meeting. In fact, outside of the context of a town hall or community meeting, JKW has never spoken with or written to me at all, about anything. [Except back in 2012 when Jean was still living, when I admonished him by direct email for relentlessly trashing Jean Sweeney in his “Stop, Drop, and Roll” blog. The relevant anti-Sweeney posts have since been taken down.]

    I was admonished for using a city computer for my personal business that was accidentally left already logged on by its ordinary user-once, not multiple times, as JKW incorrectly inflated. If there had been anyone there to ask permission of, I would have done so. But there wasn’t and I needed to download some time-sensitive personal medical records. My bad.

    From my perspective, what I did was, maybe, as bad as when someone who is not disabled parks in a disabled parking space for “just a minute”, because they couldn’t find any other spaces. This is a CVC violation which carries a hefty fine if you are cited. But I was not cited or arrested for my behavior and I have made my apologies to the appropriate authorities, including 2 city managers and a district attorney. They all accepted my apology.

    Another date in the police reports was when I was in the Navy’s Information Repository on the weekend to read RAB documents. APD sent two officers, using two police cars, to escort me out, solely because someone saw my car where I always park it in the disabled spot in the parking lot and called the police. There were no other vehicles in the parking lot when I arrived or left the building, other than the 2 police cruisers.

    I didn’t see anyone else while I was there. I may have been the only person in the building at that time [mid-afternoon on a Saturday] and the officers who responded were unaware that the Information Repository was even there for RAB use. [I was only in the Information Repository, not trespassing anywhere else]

    Who the reporting party was, I still don’t know. The APD will not tell me, because they don’t disclose the identity of anonymous complainers. Maybe it was John Knox White himself.

    I submitted my CDI application by the January 28 deadline. This incident occurred in February. I shared it with the Mayor soon after it happened, because it was the responsible thing to do. I didn’t want her to be blindsided by it if she chose to nominate me, and she told me she could not talk about it but was being briefed by the police and city staff. She did in fact wait until September to nominate me. When I learned I would be nominated, I sent emails to each city councilmember, inviting them to contact me with any questions about my nomination. Only Tony Daysog did so.

    Jim Oddie, in his capacity as Assemblyman Rob Bonta’s District Director, has been helping me since soon after he was elected to Council with an unresolved dispute I have ongoing with the California Department of Managed Health Care regarding Kaiser Permanente’s withholding of medical records and treatment. Of all the councilmembers, I thought Jim Oddie would be the most understanding of why I was desperate to print medical records forwarded to me by DMHC and respond within a 72-hour timeframe, over a 3-day weekend. I was very surprised when he abstained. He hasn’t told me why, either. And his abstention possibly sends a message that, helping a Bonta constituent with a state agency interferes with his ability to interact with the same constituent at the City level.

    I don’t know if this is the case with Jim Oddie. I wish he would discuss it with me. I was surprised he didn’t call me like Tony did.

    One last correction regarding JKW’s “My Word” piece. Until at least its most recent meeting of 27 July 2015, the CDI has been staffed by the City Attorney’s office, not by Public Works [cf Action Alameda News, 14 Oct 2015].
    It is incorrect for John Knox White to say that Public Works “oversees” the CDI. [ My Word 9/25/2015: “trespassing in the city offices of the department that oversees that commission”.]
    In fact, such a relationship would be inappropriate. Disability Rights are Federal Civil Rights, which trump virtually all others. It is rather the task of the CDI to inform the Department of Public Works when plans for City facilities might fail to accommodate persons with disabilities.

    Carol Gottstein

  4. David says:

    As per usual, JKW stretches and distends the truth…

    If anyone “oversees” the CDI, it’s City Council, not the department that provides staff support to the committee. For one thing, it’s the Mayor that appoints committee members, and council votes on them.

    For another, according to ordinance/charter, the purpose of the CDI is to:

    Provide information and make recommendations regarding disability issues to the City Council.
    Receive information regarding disability issues from the community at large.
    Adopt rules for the proper conduct of its affairs.

    All committees have staff support from various departments within City Hall. As Carol notes, CDI used to be supported by the City Attorney’s office. That was recently changed to public works.

  5. Carol Gottstein says:

    I just asked to see the applications for CDI commissioner. To my great surprise, none of the supporting material I submitted (my CV, my documented list of accomplishments on behalf of disabled access in Alameda, letters of recommendation, etc.) was appended to my application. [In fact, there is no supporting material with anyone’s application–just the one-page city form is available in the clerk’s office.] I asked the City Clerk’s office where it all went. He said “if you didn’t submit it to the City Clerk, we don’t have it”. Then I went to the City Manager’s office. They didn’t have it either. It is true that I submitted the supporting material after my original application, when the process became more competitive. Some material I emailed directly to City Councilmembers and the Mayor. Much of it, like my Curriculum Vitae, I brought to my interview with the City Attorney and the Mayor, where I handed it to both of them. My letters of recommendation went directly from the senders to the Mayor and/or councilmembers. It is true that the City Attorney’s office is on another floor from the City Manager and Clerk. But I thought that, once submitted, all my relevant information would end up in the same file under CDI Applications. Apparently not! Now I’m wondering just who saw what and despite my best efforts, exactly what was presented to the City Council members who failed to support my application?

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