Treating the OGC like a potted plant

When Council unanimously passed the Sunshine Ordinance in 2011, it gave the Open Government Commission the power to invalidate an action by a governmental body – including Council itself – if the Commission found a violation of the Ordinance’s requirements for public meetings.

For seven years, the Commission never exercised that power.  But then, on November 14, the Commissioners unanimously sustained a citizen complaint challenging the notice given for the meeting at which Council adopted a cannabis ordinance permitting four onsite retail pot stores in Alameda.  As a remedy, it ordered Council to re-notice the agenda item for a subsequent meeting at which the ordinance would have to be voted on again.

That hasn’t happened – and the City Attorney’s office (and maybe others) are doing their damnedest to make sure it never will.

Before taking its vote, the Commission sought legal advice about the available remedy from Assistant City Attorney Michael Roush, who was sitting on the dais and who, in response to a Commissioner’s question, unhesitatingly stated that the Sunshine Ordinance gave the Commission the power to order that Council’s October 16 action be “null and void” and to order Council to cure or correct the violation.

The Sunshine Ordinance requires the Commission to issue a written decision reflecting its ruling within 14 days after the hearing, and it is the City Attorney’s responsibility to draft the decision.  But no draft was forthcoming from the City Attorney’s office by
November 28.  Instead, on December 3, the City Attorney asked City Clerk Lara Weisiger to schedule a “special meeting” of the OGC “to address the complaint heard on 11/14.”

There followed a memo posted on the City website on December 10 contending that, despite the plain language of the Sunshine Ordinance, the Open Government Commission did not have the authority to declare an action by Council “null and void” or to order it to cure and correct a violation by re-noticing an agenda item.  The Commission should “re-consider” its November 14 decision, the memo stated, and, if it still found the complaint meritorious, it should merely “recommend” that Council “consider” repealing the ordinances passed without adequate notice and “re-introducing” them with such notice.  (Presumably, of course, Council would be free to reject any such “recommendation.”)

The author of the memo was Michael Roush – the same Assistant City Attorney who had assured the Commission at the November 14 meeting of its legal authority to remedy the violation of the Sunshine Ordinance by striking down the ordinance passed by Council!

What’s going on here?

As our regular readers know, the Merry-Go-Round never has been a fan of the quality of legal analysis provided by our City Attorney’s office, and it would be tempting to point the finger at Mr. Roush for this latest snafu.  Indeed, as we’ll discuss later, we are distinctly unimpressed by the arguments he makes for interpreting the Sunshine Ordinance in a manner contrary to its plain language and contradictory to his own prior unequivocal statement.

But we don’t think that Mr. Roush really is as incompetent as it may appear.  Serena Chen, the public-health advocate who brought the original complaint about the adequacy of the notice for the cannabis ordinance, points out facts that lead to an alternative explanation that may be more plausible – but, if true, more problematic.

According to Ms. Chen, three Council members – Mayor Trish Spencer, Vice Mayor Malia Vella, and Councilman Jim Oddie – have been strong promoters of retail cannabis businesses in Alameda.  This three-person majority would have been able to comply with the Open Government Commission’s decision by re-passing an ordinance permitting four onsite retail pot stores only if an adequately noticed item had been placed on a Council agenda posted by November 22 – Thanksgiving Day – for the December 4 meeting.  (The second reading of such an ordinance would take place on December 18, the last day the current Council is in office.)

But it was not.  So if the OGC decision is given effect, the issue of the permissible number of onsite retail pot stores will be kicked over to the new Council.  And that creates a potential problem for the pro-cannabis crowd.

Ms. Spencer will not be sitting on Council after December 18, and, according to Ms. Chen, incoming mayor Marilyn Ezzy Ashcraft “has consistently urged taking a slow growth approach to cannabis business.”  As far as we know, neither of the incoming Council members – Tony Daysog and John Knox White – stated a view on the subject during the recent campaign.  But if they join the “slow growth” camp, the new Council would not pass the same ordinance as its predecessor.

The safest way to eliminate this risk is to ensure that the October 16 Council vote stands – by getting the OGC to rescind its order declaring that action “null and void” and to replace it with a “recommendation” that Council is free to ignore.  We don’t know that this thinking actually motivated the City Attorney to request a “special meeting” – but it surely would explain it.  If so, we think it’s a shame that the City Attorney’s office has signed onto such a Machiavellian scheme.

Perhaps no one has more reason to be disappointed by these events than the original complainant, Serena Chen.

Ms. Chen has worked in the public-health field for 27 years, and she is known for her advocacy of “tobacco control” – i.e., anti-smoking – laws.  After the voters passed Proposition 64 legalizing the sale of marijuana for recreational use, Ms. Chen worked on a proposed cannabis ordinance in Solano County.  When she learned that her hometown of Alameda was considering a similar ordinance, she decided to get involved, primarily to ensure that any new law contained sufficient protections for school children.

Thereafter, Ms. Chen attended every one of the meetings held on cannabis-related issues, including the July 24, 2018 session at which Council directed staff to draft amendments to the cannabis ordinance adopted in November 2017.  The original ordinance permitted the sale of marijuana at two “dispensary/retail” stores for medicinal use only.  At the July meeting, a Council majority favored amending the ordinance to permit the sale of marijuana for recreational use at the two locations.  The majority also supported allowing two additional “delivery-only” outlets that could sell pot and deliver it to a user but could not sell it to the public on the premises.

Staff was ready to present the amendments implementing this direction to Council at its October 16 meeting.  The package prepared for Council, and posted on the City website, appeared to follow the July directive exactly.  The proposed amendment struck the language limiting “dispensary/retail” stores to sales for medicinal use.  In addition, the agenda stated that the ordinance would be amended to “Add Two Delivery-Only Dispensaries.”  The staff report went on to state, repeatedly, that these new two “delivery-only” outlets would be “closed to the public.”  And the draft amendment itself defined “delivery-only” to mean that “the physical location from which deliveries are made is not open to the public.”

As Ms. Chen later explained to the OGC, based on her reading of the Council package, she understood that Council was simply going to decide whether to adopt an ordinance containing the provisions it already had directed staff to include.  Having attended the July meeting, she knew that there were three votes to pass such an ordinance.  Since nothing would be achieved by reiterating the views she previously had expressed, she chose, for the first time, to skip a Council meeting dealing with cannabis.  (She was also jet-lagged.)

A few days later, Ms. Chen learned the outcome of the October 16 meeting, and, she later told the OGC, “the top of my head blew off. . . .  I felt like residents of Alameda were tricked.”

What happened was that, at the instigation of Councilman Oddie, a Council majority decided to change the term “delivery only” in the proposed amendment to “delivery required” (a completely new concept).  A “delivery-required” store could sell pot to the public on the premises – as long as it also made deliveries to offsite buyers.  By authorizing two new “delivery-required” rather than “delivery-only” businesses in addition to the two “dispensary/retailer” outlets, Council effectively doubled the number of onsite retail pot stores from two to four.

This increase was hardly insignificant to Ms. Chen and others opposed to a proliferation of storefront marijuana businesses around town.  “Had I known they were going to transform two delivery-only, closed-to-the-public dispensaries into two more full-service dispensaries, doubling the number in town,” Ms. Chen told the OGC, “I would have made every effort to come here, and I would have written something.”  Nor, she said, would she have been the only community member who would have wanted to make their opposition known.  But the agenda and supporting documents didn’t give her or anyone else a heads-up that this drastic change would occur.

So – reluctantly, she said – Ms. Chen filed a complaint with the OGC on the grounds that the agenda for the October 16 meeting had failed to comply with section 2-91.5 of the Sunshine Ordinance, which requires that an agenda provide a “a meaningful description of each item of business to be transacted or discussed at the meeting.”  A description is “meaningful,” the ordinance goes on to state, “if it is sufficiently clear and specific to alert a person of average intelligence and education whose interests are affected by the item that he or she may have reason to attend the meeting or seek more information on the item.”

When Ms. Chen appeared before the OGC on November 14, the Commissioners grasped her point immediately.

In typical fashion, Commissioner Mike Henneberry got right to the nub of the matter:  “It appears to me what happened,” he said, “is that, starting in October, they [i.e., Council] took something that was noticed, that was talking about delivery-only, and then completely flipped it on its head and went to the other extreme where you have a full-service facility with the delivery added on.”

Similarly, Commissioner Bryan Schwartz acknowledged that Ms. Chen and others “would have a different response” if they realized Council was going to authorize two more onsite retail pot stores rather than just two “delivery-only” businesses where “there’s not going to be any people gathering at the door, buying pot at the window.”  And Commissioner Paul Foreman emphasized that “meaningful” notice was crucial to give citizens “time to organize themselves, express themselves, and make a meaningful presentation, not just at the meeting but before the meeting, to the people who are going to make the final decision.”

The staff report submitted to the OGC, written by Assistant City Attorney Alan Cohen, dismissed Ms. Chen’s objections in two paragraphs and urged the Commission to reject her complaint.  The task of presenting the City’s case orally to the OGC then fell to Assistant City Attorney John Le, whose performance showed that he was, to put it charitably, not a litigator.  (Ms. Chen had argued that, after Council passed the ordinance on October 16, the vote at the second reading on November 7 was a “fait accompli.” “I’m not really familiar with that expression,” Mr. Le, somewhat sheepishly, advised the Commission.)  But we’re not sure that even Michael Avenatti could have convinced the OGC to take a more sympathetic view of Council’s action.

By the time Mr. Le completed his presentation, the Commission’s verdict on the complaint was – to pick a phrase – a fait accompli.  When Commissioner Irene Dieter asked about remedies, Mr. Le deferred to Mr. Roush, who was sitting on the dais next to Commissioner Schwartz.  “Can you answer that?” Mr. Schwartz asked, turning to Mr. Roush.

“I can answer that,” Mr. Roush quickly replied. “Under the Sunshine Ordinance, if the Commission finds a violation of the Sunshine Ordinance section 2.91, which is what the complaint is, the Commission may order the action of the body null and void, and/or may issue an order to cure and correct.  Also, it can impose a fine on the City for a subsequent, similar violation.  Those are your remedies. . . .”

Having been so advised, Mr. Schwartz offered a motion to sustain the complaint and to order Council “to re-post notice of the meeting” written to cure the defect in the notice for the October 16 Council meeting.  It passed unanimously.

So did Mr. Roush get the law wrong when he answered Mr. Schwartz’s question at the November 14 OGC meeting?  We’ve read the legal memo posted on Monday, and we’re not persuaded.

The memo frames the legal issue this way:  “Whether the Open Government Commission has the legal authority under Section 2-93.8 (Penalties), subsection (a), of the Alameda Municipal Code (“AMC”) to order the City Council to re-notice the first reading of an ordinance based on a finding that the agenda description violated the City’s Sunshine Ordinance?”  As phrased, the answer is surely yes, because the Sunshine Ordinance, in so many words, gives the OGC the power to declare an action by Council “null and void” and to order corrective action.

The memo makes four arguments in support of denying to the OGC the authority the Sunshine Ordinance so plainly confers.

First, the memo argues that the Commission’s power to declare an ordinance “null and void” and order corrective action is “unusual and unprecedented.”  So what?  Nor is that power “at odds” with the Brown Act, as the memo also asserts.  Under the Brown Act, it may indeed take a lawsuit for an aggrieved party to get an order invalidating an ordinance, but the statute does not purport to describe, much less circumscribe, the procedures followed to redress a violation of a local sunshine law.

Second, the memo argues that the remedy authorized by section 2‑93.8 and ordered by the OGC is “incongruent with certain provisions of the City’s Charter.”  Say what?  We missed the law-school class in which “incongruence” was identified as a legitimate ground for nullifying a legislatively created remedy.  Moreover, as the memo itself acknowledges, section 3.2 of the Charter specifically provides that, “The Council may confer upon any board or officer powers and duties additional to those set forth in this Charter.”  And that is exactly what Council did when it created the Open Government Commission and gave it the power to order the remedies set forth in section 2-93.8 of the Sunshine Ordinance.  To us, that would seem to settle the matter.

Third, the memo argues that the remedy authorized by section 2‑93.8 and ordered by the OGC “contradicts the local organic statute that formed the Commission and governs its continued existence.”  Another section of the Municipal Code indeed imposes a duty on the OGC generally to make recommendations to Council regarding citizen complaints.  But the Commission’s power to invalidate a specific action by Council upon finding a violation of the Sunshine Ordinance doesn’t interfere with, much less “contradict,” this general duty.

Fourth, the memo argues that the remedy authorized by section 2-93.8 and ordered by the OGC “is an improper delegation of quasi-legislative power under common law. . . .”  Well, we confess that, not being experts in the common law of quasi-legislative power, we can’t say whether Council transgressed some hoary principle when it exercised its Charter-given authority to give the OGC the power to invalidate a governmental action if it found a violation of the Sunshine Ordinance.  But if it did, the validity of section 3.2 of the Charter is itself called into question.

Moreover, it is simply not true, as the memo states, that the remedy authorized by section 2-93.8 and ordered by the OGC gives the Commission “limitless and unbounded” power.  Let’s be clear:  The Commission doesn’t have the authority to wipe an ordinance passed by Council off the books permanently (or to direct Council to enact an ordinance with different terms).  Rather, its role is to make sure that, in enacting an ordinance, Council complies with the notice and other requirements of the Sunshine Ordinance.  If Council fails to do so, the Commission has – and, in our view, should have – the power to order the elected officials to do it over again and get it right the second time.

We hope that the two lawyers on the Commission – Mr. Foreman and Mr. Schwartz – will have the time to study the legal issues before the OGC meets again on December 17 and that their fellow Commissioners will pay attention to their views.  After all, neither of them – yet – has taken diametrically opposite positions on the same question.  And Ms. Dieter, who works for First District Court of Appeal Justice Stuart Pollak, knows more than just a little bit about the law herself.

But putting the legal issues to one side, we also hope that the Commissioners will keep in mind the significance of their decision as a matter of public policy.  We went back and watched the video of the October 2011 meeting at which Council adopted the Sunshine Ordinance.  The politicians, and the members of the task force that came up with the first draft of the law, were justifiably proud of what they had wrought.  Eviscerating the Commission’s authority now would dishonor their achievement.  As Ms. Dieter put it so succinctly in an email in response to our request for comment: “There is no reason to have an Open Government Commission if it has no enforcement power for its oversight duties and responsibilities.”


Cannabis ordinance: Ordinance 3201 (11-21-17); 2018-10-16 CC agenda; 2018-10-16 staff report re cannabis; 2018-10-16 Proposed ordinance amending cannabis business ordinance; 2018-11-07 Final Ordinance amending cannabis business ordinance

Sunshine ordinance: ARTICLE_VIII.___SUNSHINE_ORDINANCE (2016)

OGC meetings: 2018-11-14 staff report re complaint; 2018-12-17 memo from counsel

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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5 Responses to Treating the OGC like a potted plant

  1. Too bad the commission doesn’t have the power to issue a contempt citation since the city attorney’s office failed to issue the cure and correct order from the commission by the deadline.

    The ruling to rehear the cannabis agenda item is not a form of legislation, a role reserved for the city council, as the staff report suggests. The commission neither drafted nor enacted any legislation, nor do we have any idea what the opinions of the commission are on the issue of cannabis dispensaries. It was an enforcement action to notice a meeting properly.

  2. Irene says:

    The Open Government Commission unanimously dismissed the rehearing and affirmed its November 17 decision. The commission also signed the decision that set aside the city council’s cannabis ordinance amendments.

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