A gag rule for City boards

When we reported in last week’s column on the slap-down delivered by former Mayor Marie Gilmore to the Recreation and Parks Commission, we thought we were relating an item of merely historical interest.  After all, Mayor Gilmore had been voted out of office, and her equally thin-skinned City Manager, John Russo, had followed her out the door.

Au contraire.

In fact, the incident apparently has prompted a broader – and more disturbing – effort by City staff to make sure that City boards and commissions don’t rock the boat in the future.

Back in 2013, Ms. Gilmore reprimanded Rec/Park Commission chair Bill Delaney for a letter he sent on behalf of the Commission requesting that Council re-zone the Crab Cove property as open space.  “As a body established by the City Council,” Ms. Gilmore declared, the Commission “must not take any action that is in direct opposition to the legal position of the City.”

Now, City staff, led by City Attorney Janet Kern, wants to turn this one-time rebuke into a permanent prohibition.  It has proposed amending the Sunshine Ordinance – the irony isn’t lost on us, though it may be on Ms. Kern – to bar any board or commission from taking any “formal action” or “undertak[ing]” any “activity” that “contradicts a policy or a position that the City Council has adopted or expressed.”

To illustrate the application of what we’ll call the “Muzzle Law,” consider the following scenario:

Suppose Council passes an ordinance banning bicycles from Central Avenue.  (Don’t fight the hypothetical:  You never know what those crazies will do with Trish Spencer in charge).

This ordinance upsets, to put it mildly, many Alamedans, one of whom happens to be the chair of the Planning Board, John Knox White.

So suppose Mr. Knox White makes a motion at the next Planning Board meeting that the Board condemn Council’s action in the strongest possible terms.

Suppose, after the motion passes, the Planning Board votes to direct Mr. Knox White to send the resolution to Council.

And then, for good measure, suppose the Board also votes to send a copy of the resolution to Peter Hegarty at the Alameda Journal and Dennis Evanosky at the Alameda Sun.  (It goes without saying that Mr. Knox White already has provided an advance copy to Blogging Bayport Alameda).

Does anyone have a problem with any of the actions taken by the Planning Board in our hypothetical?

The Merry-Go-Round surely doesn’t.  Indeed, we’d say that Mr. Knox White and the Planning Board would be doing precisely what they should be doing:  denouncing a plainly wrong-headed decision – and using every legal means to get Council to reverse it.  More power to ‘em!

But the actions we find commendable Ms. Kern and her cohorts would make illegal.  Adopting the resolution by itself amounts to a “formal action” that “contradicts” an ordinance adopted by Council.  Sending the resolution to Council undoubtedly would be embraced by the word “activity” and therefore constitute a second, and separate, violation of the Muzzle Law.  And copying Mr. Hegarty and Mr. Evanosky makes, depending on how you’re counting, a third, or a third and fourth, offense.

This conclusion remains true even though the drafters of the Muzzle Law inserted a phase – “such as writing a letter to outside agencies or organizations” – after the word “activity.”  Staff apparently thought this insertion would limit the scope of the prohibition, but, the way the City’ s attorneys wrote the law, it doesn’t.  Writing a letter critical of Council to a third party is simply given as an example of the prohibited conduct, not as a definition of it.  So sorry, Mr. Knox White and your colleagues:  The Planning Board still will have violated the Muzzle Law even if you send the resolution only to Council itself.

What possible justification can be offered for this ham-handed effort to stifle dissent?

Assistant City Attorney Michael Roush, to whom it fell to defend the Muzzle Law before the Open Government Commission and Council, admitted that its genesis was the Rec/Park letter about Crab Cove.  But he had trouble getting the story straight.

Chair Delaney of the Rec/Park Commission had not sent the Commission’s letter to an “outside” organization, as Mr. Roush originally claimed.  The letter was addressed only to Mayor Gilmore, with copies to Council members, the City Manager, the Rec/Park Director – insiders all – as well as the Commission members themselves.  If staff’s intent was to prevent boards and commissions from airing the City’s dirty laundry in public, the Rec/Park Commission was not guilty of the offense.  The proposed Muzzle Law turns out to have been prompted by a transgression that never occurred.

In any event, even if the facts were as Mr. Roush stated them, why should this one incident justify enactment of a provision applicable to all boards and commissions?

Mr. Roush – and we don’t mean to pick on him; undoubtedly, he simply was doing the bidding of Ms. Kern – struggled to come up with a rationale.  “It seems incongruous,” he wrote in a staff report to the OGC, “for a subordinate body to take a position or draft a letter to an outside organization that contradicts a policy or position that the elected representatives have adopted or expressed.”  He used virtually the same words in his staff report to Council.

Apparently, “incongruity” is intolerable in city government, at least in Alameda.  For one thing, by expressing its dissenting views, a board or commission might “cause some embarrassment” to the Council members whose judgment was being questioned, Mr. Rouse told the OGC.   Moreover, publicly disagreeing with Council is something boards and commissions just “should not be doing,” Mr. Roush said.  (“The wagons should be pulling in the same direction, and to have an advisory body going a different direction doesn’t show the kind of unity we feel the City Council would expect its advisory bodies to have,” he later explained.)

Thankfully, the Open Government Commission, particularly new members Irene Dieter (appointed by Vice Mayor Frank Matarrese) and Paul Foreman (appointed by Mayor Spencer), wasn’t buying it.

The proposed Muzzle Law undermined the very purpose of having independent boards and commissions, Ms. Dieter argued:

We are here to advise them.  For instance, if the City Council decides not to implement bus rapid transit on the west end and the Transportation Commission feels strongly against that position, I think they should have every right to address the City Council, send them a letter, or do whatever, to tell them they believe they made a mistake and they should rethink their position.  That’s the whole purpose of our boards and commissions:  to advise, even if it’s against what our City Council deems fit at the time.

Mr. Foreman concurred. “We have the right to speak out, as a body, even if we disagree with Council,” he said.  “The only control Council should have over that is to relieve us of our duties, which [right] they [already] have.”

Despite these comments, staff went ahead and presented the proposed Sunshine Ordinance amendments, including the Muzzle Law, to Council in early October.

The proposal received a surprisingly positive reception from Councilman Tony Daysog, who even seemed persuaded by staff’s arguments.  “I’m not here to quash individuals’ personal liberties,” Mr. Daysog assured his colleagues and the audience.  “But in order for government to act effectively, once a policy is set, we ought not to encourage things that could potentially cause harm to the policy.”

Other Council members also voiced varying degrees of support for the Muzzle Law.  Neither Councilwoman Ashcraft nor Councilman Jim Oddie endorsed a total ban on public expressions of dissent by boards or commissions.  But prohibiting actions that would “undermin[e] our position in litigation” was acceptable to Ms. Ashcraft.  And banning letters to third parties inconsistent with Council’s position was OK with Mr. Oddie.

Leave it to Ms. Kern to take the most hard-line stance.  After Interim City Manager Liz Warmerdam noted that Council seemed to be distinguishing between “internal” – i.e., to Council – and external – i.e., to an outside agency – communications by boards or commissions, the City Attorney made it clear that she believed both should be prohibited.  It was, she asserted, a matter of “authority.”

A board or commission’s role was to “get information” and “provide recommendations” to Council, Ms. Kern lectured.  But once Council had made a decision, “it is not within the authority of advisory bodies to critique the final decisions of the City Council, which is the final policy maker.”  A board or commission could respond to a specific request by Council for further input.  Absent such a request, “it’s not up to them to re-agendize and say we’re not so sure they did it right.”

As Ms. Kern saw it, the distinction between internal and external was meaningless.  Any letter sent to Council was publicly available, so an outside agency would learn of the divergence of opinion even if it wasn’t itself the addressee of the letter.  The problem was not that the advisory body was speaking out of school; it was that it was presuming to speak at all.

In the end, Council decided to send the proposed amendments to the Sunshine Ordinance back to staff for further work.  If we had our druthers, we’d tell them not to come back with the Muzzle Law – in any form.  None of the arguments we read or heard justify such an obnoxious rule.

Preventing “embarrassment” to Council?  Come on, are the sensibilities of our elected officials really so delicate?  What’s more, as far as we’re concerned, there are times when Council deserves to be embarrassed.  (The Crab Cove imbroglio, we would venture to say, was one of them).

Preserving the appearance of “unity”?  We don’t think the mayor who nominates the members of boards and commissions, or the council who confirms them, has any right to insist that the appointees toe the party line.  (On this point, we hope we’ll get a thumbs-up from the Inner Ringers who admonished Ms. Spencer not to reserve slots on advisory bodies for her political supporters).  The boards and commissions are independent of the mayor and council, not, as staff would have it, subordinate to the elected officials.

And no opinion by Janet Kern is going to convince us otherwise.  Once again, as she did when she chastised City Treasurer Kevin Kennedy and City Auditor Kevin Kearney for communicating their views about the public safety union contracts, Ms. Kern is reading the law far too narrowly.

True, the role of boards and commissions is to advise and recommend, not to adopt ordinances.  But none of the powers granted to, or the duties conferred on, advisory bodies by the City Charter and the establishing ordinances ceases whenever Council passes a resolution.  (We know because we checked).  Indeed, one could argue that, if the board or commission disagrees with the action taken by Council, it actually has the duty to do whatever it can – including writing a letter – to show the Council members the errors of their ways.

(Mayor Spencer got it just right:  “If they [i.e., board or commission members] have an opinion that goes to a decision made by Council, as time passes, that decision can be changed by input from the board  that would demonstrate that we should reconsider.  That’s how decisions get reviewed.”)

Likewise, we are unmoved by the argument based on Councilwoman Ashcraft’s favorite bugaboo:  the fear of litigation.  As Ms. Ashcraft herself admitted, there is no evidence that the Rec/Park Commission letter harmed the City’s defense against the suit brought by the Park District in any way.  And it is difficult to see how it would:  the letter is not an admission binding on the City, and it probably wouldn’t even have been allowed into evidence had the case gone to trial.

These days, it takes a hearty soul to volunteer to serve on a board or commission in Alameda.  The Mayor’s opponents may leak derogatory information about you to their favorite bloggers and the firefighters’ union.  Then they may force you to endure inartful cross-examination before Council and a TV audience intended to trick you into a gaffe. If you survive those challenges and get appointed, the City Attorney now wants to rap your knuckles should you and your colleagues beg to differ with anything Council does.

Thanks, but no thanks.

Sources:

Rec/Park Commission correspondence with Gilmore: LTR2Gilmore.pg1LTR2Gilmore.pg2CrabCoveLTRfromGilmoreCrabCoveLTRfromGilmore.pg1

Staff reports to OGC: 2015-02-02 staff report to OGCRedlined Version of the Sunshine Ordinance (2015-02-02)2015-03-30 staff report to OGCRedlined Version of the Sunshine Ordinance (2015-03-30)

Staff reports to Council: 2015-07-21 staff report re Sunshine Ordinance2015-07-21 Ex. 1 to staff report – Sunshine Ordinance Redline with Explanations

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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9 Responses to A gag rule for City boards

  1. Steve Gerstle says:

    If the City Council were to terminate the City Attorney, I assume that she would be opposed to any board, commission or committee writing her a letter of support?

  2. John K says:

    Yes, it appears that City staff are generally expected to operate on auto-pilot according to what the mayor and council dictate. The city attorney merely exposes how brazen and ingrained that expectation is.

  3. David says:

    Frankly, the Sunshine Ordinance is, and has always been, since inception, a sham. It is mostly redundant with state law on open meetings and public records access, and doesn’t really provide any remedies for open government failures.

    It was cynically implemented under the Gilmore/Tam/Chen administration as some sort of pretense to transparency.

    The ordinance should simply be repealed – especially in light of the city attorney’s current attempt to bastardize it – and the open government commission shut down.

    State law, and an active local blogger community, as evidenced by this site, can suffice, without the costs of the meaningless sunshine ordinance and commission.

  4. The city attorney does not want a board or commission, such as the Recreation and Park Commission, to issue critical statements about existing policies like the Housing Element, which zoned the McKay Avenue parcel as residential.

    But if the Rec and Park Commission had sponsored a forum at Kaufman Auditorium on updating the Housing Element with regard to its impacts on the ability to increase parkland in the city, perhaps that would have been OK?

    Something similar happened in 2008 when the Planning Board hosted a forum on Measure A at Kaufman Auditorium. The stated goal of the forum was not to directly challenge the established density-limiting policy enacted in Measure A. Instead, as David Howard wrote on his blog in 2008, “The Measure A forum was justified on the basis of using the input from the community and the speakers to drive an update to the City of Alameda General Plan Housing Element.”

    The forum cost the city $41,500.

    Instead of sending letters to the city council, perhaps the Sunshine Ordinance should provide for holding public forums at Kaufman Auditorium on matters of public interest whenever a majority of a board or commission requests such a meeting to “update city ordinances and policies.”

  5. David says:

    The Planning Board hosted that Measure A forum long before the Sunshine Ordinance. There is no need for a sunshine, or any other, ordinance, to provide for public forums.

    The City of Alameda, the departments, can hold these forums as they see fit without any sunshine ordinance.

  6. Karin Lucas says:

    Thanks for bringing this important issue to our attention. Why does the City Attorney initiate city policy? According to the City Charter that seems to be the City Council’s prerogative.

    As an immigrant born in an authoritarian country I have no use for any muzzling by our city government or city officials who attempt to do so.

  7. carol says:

    ​I wanted to post a comment (below) to “A gag rule for Boards…”, but I was unable to post the Bunker letter, which was sent to me by a disabled friend who remembers the issue.

    Here is an example of why Dissent by Alameda Boards and Commissions is sometimes essential to preserving the civil rights of its citizens. In the 2003 case of Barden v. Sacramento, the City of Alameda apparently went so far as to file an Amicus brief opposing the rights of the disabled in the City of Sacramento! As discussed in the letter to Mayor Beverly Johnson from Charles Bunker, the Chair of the Mayor’s CDI at the time, the City of Alameda’s official position was clearly on the wrong side of this issue. Of course, at that time, CDI was a Committee, not a Commission.

    If such a gag rule as you discuss does go into effect, I would strongly advocate for the “de-commissioning” of the CDI back to a Committee, in order to preserve its independent voice on behalf of persons with disability issues in the City of Alameda.

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