The Merry-Go-Round received our first mailer of the election season two days ago.
It was paid for by Alamedans-In-Charge.
It urged a Yes vote on Measure K.
And it contained a claim that was, at best, misleading, and, at worst, false.
According to the mailer, “Measure K Will:
- Cap rent increases at 5% a year, regardless of when the building was constructed
- Restrict evictions, protecting families and seniors
- Streamline the hearing process to settle landlord tenant disputes.”
Now, we don’t have a problem with the last two assertions. The effect of Measure K is to enshrine the Rent Stabilization Ordinance passed by Council in March 2016 in the City Charter, with two modifications, the most important of which is that Council no longer will have the ability to amend the ordinance on its own; instead, a vote of the people will be required. And the ordinance, and thus the ballot measure, do “restrict evictions” (by limiting the grounds on which a landlord may terminate a tenancy), and they do establish procedures – we guess you could call them “streamlined” – for hearings conducted by the Rent Review Advisory Committee.
But look at the first bullet point again.
We think any reasonable tenant – in whatever apartment building she happens to be living – would take that statement as an assurance that her landlord could never raise her rent by more than 5% in any year. (We think a reasonable landlord would draw the same conclusion.)
It just ain’t so.
In fact, if a landlord wants to raise rent by more than 5%, all the ordinance (and thus the ballot measure) requires it to do is to serve notice on the tenant and request review by the RRAC.
The RRAC will hold a hearing and make a decision about the proposed increase. But nothing in the ordinance prohibits the RRAC from deciding that a rent increase exceeding 5% is appropriate.
What happens next depends directly on “when the building was constructed.” If it was built after February 1995, the RRAC decision is advisory only. Even if the RRAC decides that a proposed increase of more than 5% is unreasonable, the landlord still can raise the rent by whatever amount it chooses. If the building was constructed before February 1995, the tenant can appeal a decision by the RRAC sanctioning a rent increase exceeding 5%. But nothing in the ordinance prohibits the hearing officer from upholding such an increase on appeal. And if the hearing officer does so, the tenant’s only remedy is to seek judicial review.
(These differences based on construction dates may go away if state Proposition 10 passes, and the Costa-Hawkins Act, which created the distinctions, is repealed. But the fate of Proposition 10 will not be known when a voter casts her ballot for or against Measure K.)
To put it as politely at possible, the claim made by the mailer about the 5% “cap” simply does not comport with the way in which we always have used and understood the term. To us, a “cap” connotes a maximum – i.e., a number that cannot (or will not) be exceeded. Consider, for example, a lawyer who promises a client to “cap” legal fees in a specific amount. In such a case, the client reasonably can expect that the stated number is the maximum she will be required to pay for the lawyer’s services. If the lawyer then sends out a bill for a higher amount, the client surely will be irate, and, in our view, justifiably so. For similar reasons, a tenant would be entitled to be angry when it turns out that her landlord was able, simply by going through the RRAC process, to raise her rent by more than what she was led to believe was a 5% “cap.”
Perhaps we’re holding political advertising to too high a standard of veracity. After all, unlike a witness in court, the publisher of a mailer doesn’t swear to tell the truth, the whole truth, and nothing but the truth. As a check on our judgment, we decided to ask former Councilman Tony Daysog, who is running again for Council, for his opinion. We picked Mr. Daysog not only because he is one of the signers of the ballot argument in favor of Measure K but also because he was himself the victim of false and misleading advertising in the 2016 election.
We quote his response in full:
What matters the most is why we’re even doing Measure K in the first place, and that’s to prevent a recurrence of a City Council sneakily attempting to undo our mediation-based rent control, which is also known as Ordinance 3148. Alameda voters affirmed Ordinance 3148 when they passed Measure L1 in November 2016.
The Council was absolutely wrong in 2017 when it surgically inserted Measure M1 language – which Alameda voters rejected in that same November 2016 election – into Ordinance 3148, and this Measure K before us now makes sure that kind of chicanery doesn’t happen again.
And, frankly-speaking, to get at your question, the current mediation-based rent control does in fact provide a cap. Ordinance 3148 limits rent increases to once a year, requiring a review process for all rent increases above 5%. If a landlord wants to increase rent above 5% annually, the landlord must follow the detailed procedures set forth in Ordinance 3148 in Sections 25-14 (entitled ‘Landlord’s Request for Rent Review’) and 25-16 (entitled ‘Committee’s Hearing and Decision’).
So, to paraphrase Southwest Airlines’ commercial, landlords are ‘free to move about’ when proposing rent increase no more than 5%, but above that trigger, they are regulated by the Ordinance 3148, which requires a government-sponsored mediation involving tenants, landlords, and the Rent Board for rent increases above 5%.
“Government-sponsored mediation” is a long-winded way of saying that, in Alameda because of Ordinance 3148, we don’t have a free market a la Milton Friedman – Adam Smith when it comes to rental housing, which is okay with me, because now we have a regulated market that is fair to tenants.
Because almost every single apartment in town was built prior to 1995 – a legacy of Measure A of 1973 – every apartment in Alameda is subject to Ordinance 3148 regime that caps rent increases at 5% and requires government-sponsored mediation for proposed increases above 5%.
With all due respect to Mr. Daysog, we regard his defense of the mailer as sophistry. In fact, the “current mediation-based rent control” does not “provide a cap,” because it allows a landlord to raise rents by more than 5% in two circumstances: (1) for apartments built after February 1995, whenever it submits to a RRAC review, regardless of the outcome, and (2) for apartments built before February 1995, whenever it goes through the RRAC process and the RRAC and/or a hearing officer approves the proposed increase.
Moreover, while it may be true, as Mr. Daysog states, that “almost every single apartment in town was built prior to 1995,” that fact does not salvage the accuracy of the claim made by the mailer for such cases, where a landlord still can raise rents by more than 5% if the RRAC and/or a hearing officer approves. And even though Mr. Daysog himself recognizes the distinction in the parties’ rights based on construction date, the mailer is not so careful: It asserts that the “cap” applies “regardless of when the building was constructed.”
Since Mr. Daysog is so fond of analogies, try this one: Suppose Southwest Airlines advertised (as it does) that “friends fly free” – but then it charged the friend a “convenience fee” when she asked for a ticket (which it doesn’t). If Southwest was called upon to defend itself against a charge of deceptive advertising, would it be able to argue, with a straight face, that its statement is true because the passenger can board a plane and “fly” to her destination for “free” – all she has to pay for is issuance of the ticket? We doubt it.
We’ve picked on Mr. Daysog enough for one day. In his defense, we should note that the ballot argument he signed also refers to a 5% “cap” on rent increases – but it goes on to state that a hearing is required “before any larger rental increases can be implemented.” So at least the voter who reads the voter pamphlet, whether tenant or landlord, is not misled into believing that 5% is always the maximum.
Moreover, Mr. Daysog is not the only mayoral or council candidate supporting Measure K. The following chart, based on ballot arguments, websites, and responses to our email inquiries, shows where the candidates stand:
Our readers can check out for themselves the rationales used by the various candidates. For our part, we have not altered the view we expressed back in July 2016 when Council was considering whether to submit its own initiative for a Charter amendment codifying the rent stabilization ordinance:
[C]onverting the March ordinance to a charter provision creates its own set of problems. As an ordinance, changes can be made by majority vote on Council; as a charter provision, changes can be made only by a vote of a people. As the staff report acknowledged, placing the ordinance in the Charter would hamper “the ability for the Council to respond relatively quickly to changing circumstances in the economy [and] public opinion” as well as “the ability to refine the regulations as the program is @implemented over time.”
The arguments made by Measure K’s opponents echo this theme. The most adjective-laden response to our email inquiry came from Council candidate John Knox White, who stated: “As a mom and pop Alameda landlord, I know that [Measure K] is an unnecessary and expensive corporate-backed initiative that will require significant cost to the city in order to fix issues with the current ordinance that negatively impact both renters and landlords.” (Voters, take note of the kind of prose you’re going to get if you elect the Inner Ringleader to Council.) The response from Mayoral candidate Frank Matarrese was more succinct: Putting the ordinance into the charter, he told us, “is simply bad government.”
All this notwithstanding, we do understand why the proponents of Measure K believe the measure is necessary. As they point out, after Malia Vella was elected to Council in 2016, the Triumvirate consisting of Ms. Vella and Council members Marilyn Ezzy Ashcraft and Jim Oddie pushed through, by a 3-to-2 vote, an amendment to the rent stabilization ordinance prohibiting terminations of tenancy upon statutory notice (aka “no-cause evictions”) – even though, only seven months earlier, Alameda voters had rejected, by a 66%-to-34% margin, an initiative imposing just such a ban. To the Measure K proponents – and others as well – this action by the three Councilmembers demonstrated anti-democratic decision-making at its worst. Unless the Triumvirate’s hands are tied, the proponents fear, Ms. Vella, Ms. Ashcraft, and Mr. Oddie (if re-elected to Council) will try to do it again, and the only way to stop them is to put the existing ordinance without the ban into the Charter.
The arguments made by the candidates for local office who back Measure K usually don’t name names, but their condemnation of the Triumvirate’s conduct is clear. For example, in his response to our email inquiry, Mr. Daysog declares that the measure is intended to prevent a repeat of the “kind of chicanery” in which the post-2016 Council engaged. For others, one can read between the lines. “Leaving the decision in the hands of five council members to change City Ordinance 3148 at will,” former Councilman Stewart Chen, D.C., states on his website, “is a risky decision.” (Especially if the majority of those members happen to be partisan ideologues or political panderers.)
We’re sure we haven’t seen the last of the mailers on Measure K. As of June 30, Alamedans-In-Charge had $10,544.37 in its bank account, and since then it has reported receiving $77,027 in cash contributions. (There may be other contributions that aren’t required to be reported until the next round of pre-election filings, which are due on September 27.) On the other side, the Alameda Renters Coalition had $8,326.47 in the bank as of June 30, and, based on its experience in 2016, the group can expect to get union money between now and November to fund mailers of its own.
Our readers can wade through the opposing campaign literature if they wish. And we encourage them to read the candidates’ public statements about Measure K. But for those short on time, we offer the following handy-dandy, albeit cynical, voters’ guide:
- If you want to ensure that a ban on no-cause evictions remains possible, vote against Measure K.
- If you don’t trust politicians in general, or Vella, Ashcraft, and Oddie in particular, vote for the measure.
- Cut out this paragraph and throw away all the mailers you get between now and November. That way, you’ll spare yourself from having to sort through a spate of spurious claims like the one we saw this week.
Rent stabilization ordinance: ARTICLE_XV.___RENT_STABILIZATION_AND_LIMITATIONS_ON_EVICTIONS_ORDINANCE