How not to write a law

When we read the stories about how, on November 7, the landlord at the 34-unit Bayview Apartments on Central Avenue had begun the process of clearing out tenants by serving 60-day “no-fault” notices to vacate, we wondered right away:

Wasn’t the landlord breaking the law?  Hadn’t an “urgency ordinance” been adopted on November 5 that prohibited landlords from taking that kind of action for 65 days?

Well, it depends on which version of the ordinance you’re talking about:  the one passed by Council – or the one re-written by staff after the Council vote.

As drafted by the City Attorney and submitted to Council, the urgency ordinance imposing the moratorium did not forbid landlords from serving no-fault notices to vacate during the 65-day period.  Neither did the ordinance actually passed by Council at 1:30 a.m. on November 5.  By serving the notices to vacate, the Bayview Apartments’ landlord did not commit any act proscribed by a law Council had voted to adopt.

Instead, the urgency ordinance presented to, and passed by, Council precluded landlords only from actually evicting tenants during the moratorium period.  But no evictions are going to take place at the Bayview Apartments while the moratorium is in effect.  Indeed, the notices don’t require the tenants to move out until after the moratorium is over.

It thus might appear that, unsavory as its conduct was, the Bayview Apartments landlord did nothing illegal.

But something strange happened after Council voted to adopt the new law.

Sometime between 1:30 a.m. on November 5, when Council passed the urgency ordinance, and later the same day, when (according to City Clerk Lara Weisiger) the Mayor signed it, the ordinance was significantly re-written by someone on City staff (and we’re pretty sure it wasn’t Ms. Weisiger – the only logical candidate is the City Attorney’s office headed by Janet Kern).

The ordinance passed by Council provided that, during the 65-day moratorium, no landlord shall “evict a tenant except for cause. . . .”  The re-written ordinance eliminated this language.  Instead, the law now provides that, during the moratorium, no landlord shall “take action to terminate any tenancy including, but not limited to, making a demand for possession of a rental unit, threatening to terminate a tenancy, serving any notice to quit or other eviction notice or bringing any action to recover possession of a rental unit except for cause. . . .”

The ordinance re-written by staff is far broader than the ordinance passed by Council.  Not only is the landlord prohibited from evicting (i.e., “dispossessing,” or, more colloquially, kicking out) the tenant, but it is barred from taking any of the steps required to effectuate an eviction.  Even though the action taken by the Bayview Apartments’ landlord – serving no-fault notices to vacate – did not violate the ordinance as adopted, it did violate the ordinance as re-written.

What’s going on here?

To the Merry-Go-Round, the story appears to be that the City Attorney endeavored, behind the scenes, to clean up a mess of her own making.  The original draft ordinance imposing the moratorium was poorly written and did not achieve its intended purpose.  The problem was identified at the Council meeting, but it was too late – literally – to fix it on the spot.  So the City Attorney and her staff decided to re-write the ordinance after the Council vote to include the language that should have been there in the first place.  Council never voted to accept the revised language, but it’s how the moratorium ordinance now reads.

It was two months ago that, in response to the demand by the Alameda Renters Coalition to enact a moratorium on rent increases and no-fault evictions, Council gave to staff – specifically, to City Attorney Kern – the task of preparing a report outlining options and suggesting legislation.  Despite the renters’ insistence on immediate action, Council didn’t set any deadline because Ms. Kern pleaded that her staff needed time to analyze the “myriad of legal issues involved.”

As we previously pointed out, those legal issues really weren’t all that complex.  Nor should it have been difficult to draft an ordinance imposing the moratorium demanded by the renters.  The purpose of a moratorium would be to prevent rent increases and no-fault evictions from taking place while Council considered limiting or banning them altogether. But both of these unwanted occurrences represent the last step in a process that begins with service of a notice on the tenant – a notice of rent increase for the former, a notice to vacate within 30 or 60 days for the latter.  So, to be effective, the moratorium ordinance would need to be written so as to stop the process in its tracks.

For rent increases, the task of drafting an effective moratorium ordinance was simple.  If the ordinance prohibited a landlord from serving a notice of rent increase during the moratorium period, it would ensure that rents could not be raised while the moratorium was in effect and for 30 days thereafter.  For no-fault evictions, the same strategy applied, but, since the process leading to an eviction was more elaborate, the ordinance had to be more comprehensive.  If the ordinance prohibited a landlord from serving a no-fault notice to vacate or taking any of the other steps prerequisite for an eviction during the moratorium period, it would ensure that a landlord could not start, or keep, the ball rolling toward eviction while the moratorium was in place.

Staff’s failure to include a provision like this in the no-fault eviction section of the ordinance it submitted to Council opened up a gaping loophole.  A landlord could serve a no-fault notice to vacate during the moratorium period, or even file an unlawful detainer action if the notice had been served previously, and so long as no tenant was actually kicked out during the 65 days of the moratorium, the landlord had acted legally.  Having embarked – legally – on the process leading up to eviction, one could argue, the landlord was entitled to see it through after the moratorium ended.  Even if Council enacted a permanent good-cause ordinance immediately after the 65 days were up, it might not be able to unring the bell.  If so, the moratorium would not have protected the affected tenants against the ultimate result they sought to avoid: no-fault eviction.

For some reason, despite having had six weeks to analyze all of the “myriad” legal issues involved with rent control and good-cause ordinances, the City Attorney and her staff had not thought through situations like these when they drafted the moratorium ordinance.   Indeed, when the three Council members with law degrees – Mayor Trish Spencer, Councilwoman Marilyn Ezzy Ashcraft, and Councilman Jim Oddie – raised questions about the effect of outstanding no-fault notices to vacate, Ms. Kern, and Assistant City Attorney Michael Roush, who rushed to the podium to assist his boss, told Council they would need to do further research get the answers.

We wouldn’t have blamed the Council members if, at this point, they had thrown up . . . their hands – and then decided to postpone a vote until the City Attorney and her staff could get their act together.

But deferring a decision in order to accommodate the lawyers wasn’t going to cut it:  the renters were demanding action now.  And it was, after all, after 1 a.m.  So Ms. Kern proposed a “solution”:  “How about if we say:  ‘in accordance with law,’ and we’ll have to check because we don’t know right now.”  Still fumbling,  she proposed just before a vote was taken inserting the phrase “as authorized by state law” instead.

This “solution” solved nothing.  If anything, it introduced an internal inconsistency that would weaken the moratorium ordinance even further.  State law “authorizes” a landlord to evict a tenant by taking the steps set forth in the unlawful detainer statutes, which do not require good cause.  So a landlord complying with state law apparently could do what the moratorium ordinance was intended to prevent – evict a tenant without good cause. Or so Ms. Kern’s proposed language could be read to provide – which surely wasn’t what the renters (or Council) had in mind.

But, as the clock ticked toward 2 a.m., the Council members were willing to grasp at any straw.  Indeed, even though Councilwoman Ashcraft had been one of those to recognize the holes in the draft, she endorsed Ms. Kern’s suggestion wholeheartedly. “That sounds fair,” Ms. Ashcraft said, adding:  “Keep us legal.”  So when it came time to vote, Council unanimously passed the urgency ordinance, with Ms. Kern’s insertion the only change to the provision dealing with evictions.  Whether they knew that the City Attorney planned on re-writing that provision before the Mayor signed the ordinance remains an open question.

It is likewise an open question how the City would fare if the matter found its way into court.

A judge might expect that, if Council votes to change a draft ordinance submitted by staff and then passes the ordinance as revised, the changes will be incorporated verbatim in the official text.  Perhaps staff can make minor editorial corrections when it prepares the final version for the record – but that’s about it.  If staff goes any further, it would be usurping the elected officials’ power to legislate.

Here, the City Attorney and her staff apparently went far beyond making editorial corrections:  They re-wrote the law passed by Council to fix a problem they had caused through their own careless drafting and had not even realized existed until the Council members pointed it out to them.  A judge might very well find that this conduct crossed the line (or, to use Ms. Kern’s favorite phrase, that she and her minions “exceeded their authority under the City Charter”).

What’s more, in the case of the Bayview Apartments, the landlord might have another defense specific to its factual situation.  The landlord served the no-fault notices to vacate on November 7.  But the Frequently Asked Questions linking to the re-written ordinance were not posted on the City website until November 17.  Accordingly, the landlord might argue that it could not have known, 10 days earlier, that it was disobeying any law.  Sure, ignorance of the law is no excuse – but how can you punish a landlord for violating a prohibition that the public wasn’t told existed?

Of course, the matter may never get before a judge.  The law now on the books is written the way it should have been initially.  The FAQ posted on the City website make clear that the moratorium ordinance prohibits a landlord not only from serving a no-fault notice to vacate while the moratorium is in effect but also from continuing the eviction process if it served a notice before November 5.  (The FAQ says that the notice is “stayed” during the moratorium period).

But this happy ending shouldn’t obscure the lessons to be learned from the sorry story we’ve just told.

Given the inept way in which the City Attorney and her staff drafted the moratorium ordinance, maybe Council ought to consider retaining an outside law firm specializing in municipal law to write the permanent rent control and good-cause ordinances.  Even though this is not the first time the City Attorney has delivered defective work product, Council may want to let Ms. Kern keep her job – especially since a year ago its predecessor renewed her contract (at a salary of $209,600 a year, plus annual increases) for another four years.  But it doesn’t have to risk letting her or her staff repeat their mistakes.

Moreover, given the surreptitious way in which the ordinance passed by Council was revised, maybe Council ought to consider adopting a rule banning staff from re-writing an ordinance after Council has adopted it and requiring that any changes made by Council itself be recorded verbatim in the text of the ordinance.  Council might even want to re-think whether it makes sense to allow oral amendments to draft ordinances to be made at Council meetings at all, especially amendments offered after the stroke of midnight.  (It would be too much to hope that Council would ask the State Legislature to implement our preferred remedy:  creating an exception to the Brown Act to allow Council members to tinker with, and agree upon, the language of a proposed ordinance beforehand).

Of all the issues to come before Council, the “rental crisis” is one for which clarity and certainty in the law is paramount.  Landlords need to know what their obligations are.  Tenants need to know what their rights are.  If the law is clear and certain, both parties can govern their behavior accordingly.  If not, the losers will be the Alameda landlords and tenants who rely on Council to establish the rules of the game.  Surely Council should do whatever is necessary to give their constituents laws they can obey – and respect.

Sources:

Draft moratorium ordinance: 2015-11-04 Ex. 6 to staff report – draft Urgency Ordinance

Moratorium ordinance signed by Mayor: Final urgency ordinance

FAQ on moratorium ordinance: City FAQ on moratorium