Identity crisis

It is tempting to see nothing more than political expediency behind the votes by Council members Marilyn Ezzy Ashcraft and Jim Oddie to amend the City’s “rent stabilization” ordinance – passed by Council last March and ratified by the voters last November – to include a ban on “no-cause” evictions.

After all, during the none of the Council discussions that led to enactment of the ordinance did Ms. Ashcraft or Mr. Oddie urge that it contain a provision prohibiting no-cause evictions (even though staff had presented Council with an optional draft that did just that).  “I’m comfortable with having no-cause evictions allowed,” Ms. Ashcraft said at one meeting.  “I’m very proud of what we did,” Mr. Oddie declared at another.

But Mr. Oddie will be up for re-election to Council next year, and Ms. Ashcraft is viewed as a likely challenger to Mayor Trish Spencer.  No doubt, the two of them are well-aware of the damage that the leftist wing of the local Democratic party and its online allies can inflict if a politician doesn’t adhere to the approved dogma.

Just ask former Councilman Tony Daysog.

And the simple explanation may be the right one.  Indeed, at last Tuesday’s Council meeting, both Ms. Ashcraft and Mr. Oddie denied so vehemently that they were motivated by politics that one can’t be blamed for thinking that, perhaps, they doth protest too much.

But today the Merry-Go-Round offers a variation of that explanation.  Rather than (or in addition to) an example of political expediency, the about-face by Ms. Ashcraft and Mr. Oddie can be seen as demonstrating the emergence, in Alameda, of the national phenomenon known as “identity politics.”  No longer do elected officials conceive their role to be fashioning compromises intended to do the most good, and the least harm, for all of their constituents.  Instead, they seek to promote the interests of a particular group whose members share a common characteristic – in this case, status as renters – without regard to any competing interests.  Whether this works as an electoral strategy is debatable.  Whether it makes sense as a way to make public policy is problematic.

The public outcry over the “rental crisis” in Alameda began when the landlord of the 33-unit apartment building located at 470 Central Avenue served multiple tenants with 60-day notices to vacate, allegedly so that he could spruce up their apartments and then re-rent them at a higher rent.  To several Council members – including, at the time, Ms. Ashcraft and Mr. Oddie – this incident raised two practical issues demanding a legislative remedy:  How could Council prevent “mass” evictions?  How could it stop landlords from “displacing” tenants simply out of “greed”?

Prohibiting no-cause evictions altogether, of course, was a possible solution to these problems.  But a consensus soon emerged on Council for taking a more pragmatic approach:  The problem of mass evictions could be addressed by limiting the number of units in any given building that could be subject to no-cause terminations per month and per year.  And the problem of profiteering could be addressed by requiring the landlord to pay relocation benefits to the outgoing tenant and limiting the amount of rent the landlord could charge to the incoming tenant.  Staff prepared a proposal incorporating these provisions, and, ultimately, they found their way into the ordinance passed by Council.

During the Council discussion, Mr. Oddie explained the theory underlying the pragmatic approach.  Setting a cap on the number of permissible no-cause evictions “may help disincentivize landlords from just evicting with no cause,” he argued.  Likewise, the staff proposal may be not “de jure no-cause eviction, but it is de facto, because with combination of the relocation expenses and the rules that you can’t increase your rent to the new tenant more than the old tenant you do have a financial disincentive to evict someone.”  He added: “So there’s going to be a decision point here that if tenants are right and landlords really are greedy, they’re going to have to do some serious thinking before they actually exercise their right to evict.”

(As we commented at the time, this kind of rationale reflected what the Obama administration’s regulatory czar, Professor Cass Sunstein, has called “libertarian paternalism” – i.e., the government can get people to act the way it thinks they should act not by prohibiting certain behavior but by making it more difficult or expensive for people to act in the disfavored way.)

Ms. Ashcraft also offered pragmatic reasons for endorsing an ordinance that did not ban no-cause evictions, but hers were of the more old-fashioned political variety.  The new law represented a compromise in which both landlords and tenants got some, but not all, of what they wanted:

Landlords asked for, and we gave you, no-cause evictions.  You don’t have to go to court; you can file this provision, no-cause eviction.  Will you have to pay a relocation fee and moving assistance?  You will, because it’s the safeguard that that provision isn’t abused, as it was, say, at 470 Central. . . . Does it disturb you to have to pay money to a problem tenant? Sure it does, and, if you don’t want to do that, you hire an attorney and you go through the court process, but you know there’s no guarantee when you to go to court.  So we’ve given you something.  The tenant community doesn’t like that.  They say, wait a minute, state law has a list of enumerated reasons; you prove that in court, then you evict me.  Don’t give them ability to evict me with no cause.  So we’ve given something to the landlords and we’ve tried to give back to the tenants.  Nobody’s happy with, but I happen to think it’s striking a fair balance.

(In addition to sounding like a politician, these remarks also were characteristic of a professional arbitrator – which Ms. Ashcraft is, part-time, for the Better Business Bureau.  A good settlement, it is often said in ADR circles, is one that leaves both parties equally unhappy.)

The test of a pragmatic approach, of course, is whether it works.  If, after the ordinance was passed, “mass” evictions resumed, or if the number of no-cause evictions increased dramatically, the new law wasn’t solving the problems that had prompted Council to enact it in the first place, and more drastic measures were called for.  And Council reserved the right to amend the legislation if its provisions weren’t achieving their intended goal.

So when the time came last month for the first annual review of the ordinance, staff included in its report information about no-cause evictions.  The report presented no evidence that “mass” evictions in fact had resumed.  Nor had the number of no-cause evictions increased dramatically:  only 32 notices of termination for no cause had been filed in the preceding year.  Moreover, according to staff’s follow-up report, the reason most often stated for terminating a tenancy for “no cause” was that the property owner had sold, or was planning to sell, the building.  Under state law, even a city council as enlightened as Alameda’s cannot force a property owner to remain in the rental business.

We dare say that these statistics would have satisfied a pragmatist.  City staff certainly thought so.  “In light of nearly 15,000 rental units,” the staff report stated, “the number of no cause evictions is so small that staff concludes the Council’s decision last year to allow no cause evictions but limit the number both monthly and annually should not be changed at this time.”

It thus must have come as a surprise to staff (and the seven citizens remaining in the audience) when, just after the clock struck midnight and the April 4 Council meeting was wrapping up, Ms. Ashcraft raised the issue of amending the ordinance to prohibit no-cause evictions.  She recently had attended a seminar on government ethics, she told her colleagues, at which the elected officials were admonished to let “fairness and justice” guide their decision-making.  (Balance and compromise apparently didn’t make the list.)  This advice apparently prompted her to re-consider her support for the ordinance she had voted for and signed a ballot argument in favor of.  “My personal feeling,” Ms. Ashcraft declared, was that “I don’t think we’re serving the common good or the criteria of fairness and justice to leave tenants wondering whether they will be that tenant who can just be plucked out as a certain percent of the no-cause evictions in the building.”

For one brief, shining moment, Mr. Oddie remained a pragmatist.

In response to Ms. Ashcraft, the Councilman honed in on whether any facts backed up her epiphany.  “What I’d like to know before I make a decision on this is: Where’s the crisis?” he said. “There was a crisis two years ago.  There was a crisis one year ago.  But the number of evictions a just-cause ordinance would prevent in the last year is 24, .0016 percent.  I’d like to see the evidence.”

But, less than 72 hours later, Mr. Oddie abandoned his insistence on evidentiary support.  “If you look at the data from a big-picture, 40,000-foot level,” he conceded, “you could say the rent-control ordinance that we put in place is working.”  But the numbers no longer mattered:

 [When] I couldn’t fall asleep on Tuesday,  I remembered when I was a kid reading a newspaper article about a train accident in the City of Danville, Illinois, east-central Illinois, and I told my mother, “Mom, look, isn’t it great that only one person died – it could have been a lot worse.”  And she said to me, “How would you feel if you were that one person?  How would you feel if you were that person’s family?”  So while at a 50,000-foot level, it looks like it’s working, for 24 families . . . maybe it’s not working for them.

From that point forward, both Mr. Oddie and Ms. Ashcraft saw their role as Council members in terms of “protecting” one side – the tenants – rather than balancing competing interests.  Compromise no longer was necessary because, as a group, renters had a more worthy claim to solicitude from Council than landlords did.  As Mr. Oddie put it, not only did tenants have a “legitimate interest in keeping their homes,” they had a “moral right of occupancy.”

How did tenants come to occupy this favored position?  To hear Mr. Oddie – himself a renter – tell it, it was a matter of relative virtue.  “Long-term tenants,” he declared, “have all been pillars of our community.  They’ve contributed a lot to our community, they’ve contributed to make Alameda a desirable place to live. . . .”  By contrast, landlords’ desire to evict tenants without “just” cause showed their disrespect for fundamental principles of “due process.”  Even worse, his own conversations with landlords had convinced him that, as a group, they lacked basic human empathy.  “I have yet to see a preponderance of landlords acknowledge,” Mr. Oddie declared, “that while they’re investment properties, and while they may be the owner, these places are people’s homes.”

Ms. Ashcraft drew a similar distinction.   The “fear” expressed by tenants – “that they’re not going to be able to stay in this community, where their children go to school, where they work” – was far more significant than the mere “concern” stated by landlords about “financial insecurity,” she maintained.  Indeed, Ms. Ashcraft herself could testify to the validity of the renters’ anxieties.  She’d gotten an email from a landlord accusing her of acting for political reasons – gasp! – and warning her not to “tinker with” the existing ordinance.  To Ms. Ashcraft, this constituted a “threat,” and she concluded that, if a landlord would threaten her, a sitting Council member, “I can only imagine the fear and intimidation your tenants might live under.”

For a long while, identity politics was considered an effective electoral strategy.  Assembling a “coalition” of various groups, each of which was defined by race, gender, or some other common characteristic, worked for Barack Obama, didn’t it?  But then Hillary Clinton lost the last election.  And there were some, even in her own party – Joe Biden and Bernie Sanders come to mind – who didn’t accept the excuse that racism or sexism, or even James Comey or Vladimir Putin, caused Ms. Clinton’s defeat.  Instead, the problem with running a campaign based on identity politics was that the strategy not only attracted too few voters, it turned away too many.

On a local level, one might view the successful Council campaign by Malia Vella last November as evidence of the effectiveness of identity politics.  Portraying herself as the candidate of “working families” – aka union members – and renters, Ms. Vella got so many votes that she became Vice Mayor.  Ms. Ashcraft might well be tempted to adopt a similar strategy for her mayoral run (and Mr. Oddie for his Council re-election bid).  But Secretary Clinton’s experience should give them pause.  (And, no, Ms. Ashcraft, we don’t mean this as a threat.)  Maybe running as a candidate seeking to balance competing interests and find common ground wouldn’t turn out to be such a bad electoral strategy after all.

More importantly, it might even be a better way to govern.

Sources:

Staff reports: 2017-04-04 staff report re rent program; 2017-05-16 staff report re amendments to ordinance

No-cause eviction summary: 2017-05-16 Ex. 4 to staff report – Program Administrator Data for 24 terminations