What would Hiram say?

“How best can we arm the people to protect themselves?” Hiram Johnson, one politician who actually deserved to call himself a “Progressive,” asked when he was inaugurated as governor of California in 1911.

His answer:  “[W]hile I do not by any means believe the initiative, the referendum, and the recall are the panacea for all our political ills, yet they do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves.”

The continuing contretemps over the initiative to re-zone as open space the McKay Avenue property formerly used for federal offices prompted us to check out how the mechanisms devised by Johnson and other Progressives had worked locally in the recent past.  So, today, a history lesson.

The initiative (and referendum) process begins with filing a notice of intent to circulate a petition.  City Clerk Lara Weisiger was kind enough to pull together for us the data on the notices filed since 2000, and we’ll present it below.  But, first, the big picture:

  • Only five local initiatives have been submitted to Alameda voters since 2000.
  • Of those five, two passed and three were defeated.
  • Both of the initiatives that passed involved efforts to acquire or protect public parks: the initiative to re-zone the Beltline Railroad property – where the Jean Sweeney Open Space Park now is located – as open space in 2002, and the initiative to amend the City Charter to prohibit the sale of parkland – like the Mif Albright golf course – without a popular vote in 2012.
  • In addition, another park-related initiative – to re-zone the Neptune Point property as open space – qualified for the ballot in 2014.  Council then decided to obviate the need to send the initiative to the voters by adopting it as an ordinance.
  • Rent control initiatives have not fared so well at the polls, regardless of which group – tenants or landlords – were pushing them.  Measure M1, the initiative sponsored by the Alameda Renters Coalition to limit annual rent increases to a fixed percentage and to prohibit no-cause evictions, failed in 2016 with only 34.07% in favor.  Measure K, the landlord-sponsored initiative to incorporate the rent stabilization ordinance adopted by Council into the Charter, failed in 2018 with only 39.69% in favor.
  • The one successful rent-related initiative was the petition to call a referendum to repeal the “just cause” ordinance passed by Council in June 2017.  After the initiative qualified for the ballot, the Council that had enacted the ordinance turned around and repealed it three months later.

Here’s a chart based on the data supplied by Ms. Weisiger and our own follow-up research:

initiative chart 2

 

What this data portends for the open-space initiative is unclear.  As the title given the initiative suggests, it is being sold as a measure to protect “open space,” and the data shows that voters have supported similarly marketed measures in the past.  But before concluding that history favors the current initiative, consider the parties whom the previous successful measures were designed to protect parks against:  a railroad (the initiative to re-zone the Beltline property) and real-estate developers (the initiative to amend the charter to prohibit the sale of parkland without a popular vote and the initiative to re-zone Neptune Point).

Railroads, of course, are a traditional target of popular antipathy – as Hiram Johnson himself knew well.  And developers don’t inspire a lot of love among the public, either, especially those who are known to cultivate elected officials to get them to grease the skids for their profit-seeking projects.

Whatever one may think of the Alameda Point Collaborative, it ain’t the Alameda Beltline Railroad.  And Doug Biggs ain’t no Ron Cowan or Tim Lewis.

A column by Irene Dieter, criticizing Council’s decision to place its own ballot measure alongside the open-space initiative, prompted us to look into an issue that isn’t reflected in the chart:  how our local politicians have responded to citizen-sponsored initiatives.  What we found was that a practice that may have been prudent at the outset has devolved into an exercise in political gamesmanship.

When Council put Measure E, the Beltline initiative, on the ballot in 2002, it accompanied it with another measure that would suspend the effective date of the re-zoning until the voters had approved new or increased taxes, fees, or assessments to pay any judgment for inverse condemnation.  At the time this wasn’t just a theoretical possibility:  the railroad already had sued the City seeking compensation for an alleged “taking” of its property, and an Alameda Superior Court judge had granted partial summary judgment in the railroad’s favor.  The City’s appeal was pending, but if it lost the case, Alameda taxpayers faced the prospect of a multi-million-dollar liability.

Both the initiative and the “companion” measure passed, with 53.4 percent and 52.1 per cent of the vote, respectively, and the story had a happy ending:  the appellate court reversed the summary judgment, and, thereafter, the trial court ruled that the City had the right to buy the property at 1924 prices and the appellate court affirmed.

Council decided to take a facially similar tack when the initiative for re-zoning Neptune Point qualified for the ballot in 2014.  At Council’s direction, staff drafted what they called a “fiscal responsibility” measure to submit to the voters along with the initiative.  The measure was no model of draftsmanship, but it essentially treated as a certainty that the City would be sued for inverse condemnation if the initiative passed.  In that event, the measure raised the specter of Council having to cut services to pay defense costs and to impose new taxes to pay the judgment.

With a straight face, the politicians sought to sell the “companion” measure as a prophylactic.  “We’re trying to give the residents what they want without potentially blowing the budget,” Mayor Marie Gilmore declaimed.  By contrast, supporters of the initiative condemned the measure as a “scare tactic” based on the faulty premise that litigation was inevitable and an adverse result was probable.  (We agreed with them.)  Ultimately, Council passed a watered-down version of the “fiscal responsibility” measure at the same time it decided to enact the initiative as an ordinance.  And no one sued.

After the “companion” measure the politicians added the “competing” measure to their arsenal.  This tactic emerged after the rent-control initiative sponsored by the Alameda Renters’ Coalition qualified for the ballot in 2016.  Unwilling to risk the renters’ wrath, Council – which had just determined not to limit rent increases to a fixed percentage or to prohibit no-cause evictions – voted against submitting ballot arguments in opposition to the initiative, which contained both of those provisions.  Instead, it decided to offer its own ballot measure on the rent-control issue, asking the voters to “confirm” the rent stabilization ordinance it had just adopted.  By confirming the ordinance, the ballot argument signed by Council members Marilyn Ezzy Ashcraft and Jim Oddie stated, voters would “save[] millions of dollars that can be used to fund police, fire, ambulance response, and other essential city services.” (emphasis in original).

There were some who thought the tactic of offering a “competing” measure might lead to voter confusion.  (Again, we plead guilty.)  But it did have the advantage, for those skeptical of “just cause” requirements, of creating a second way to forestall them:  even if the renters’ initiative (Measure M1) passed, it would not trump the Council-sponsored measure (Measure L1) – which didn’t impose those requirements – if the latter got more votes.  As it turned out, Measure M1 lost and Measure L1 won, but the voters’ “confirmation” of the rent-stabilization ordinance proved to be ephemeral, as the newly elected Council – with Council members Ashcraft and Oddie in the vanguard – amended the law to insert a just-cause provision anyway.

For the open-space initiative, staff gave Council the opportunity to employ both prior stratagems.  There was a “companion” – aka “fiscal responsibility” – measure that would take effect if the initiative passed and an inverse-condemnation suit was filed.  There was also a “competing” measure that would retain the existing zoning if it got more votes than the initiative itself did.  At its January 3 meeting, Council decided to put the latter and not the former on the ballot.  Councilwoman Malia Vella noted the potential for voter confusion created by a “competing” measure, but she joined the majority in agreeing to submit it to the electorate anyway.  So now Alamedans who go by the ballot titles will get to choose on April 9 whether they want to increase “open space” or endorse a “caring Alameda.”  Or both.  Or neither.

We refer our readers to Ms. Dieter’s piece for a reasoned critique of resorting to “companion” and “competing” measures as a way to derail initiatives the Council majority doesn’t like.  (N.B.:  She’s able to make her case without calling advocates on either side of the issue a single name!)  But we can’t end without offering one last tidbit from our research.

Back in 2008, Interim City Manager Ann Marie Gallant was waging a war to rein in the public-safety spending that threatened to put the general-fund budget into the red.  Her efforts included commissioning a report from an independent expert showing that the Alameda fire department could do its job with far fewer sworn personnel – i.e., union members – than the City was then paying salaries and benefits to.  Naturally, this outraged the Alameda firefighters’ union, which responded by crafting an initiative to enshrine the staffing levels deemed necessary by the union – 109 sworn personnel – into the Charter (where they couldn’t be reduced, regardless of circumstances, without a subsequent Charter amendment).

As the chart shows, this initiative qualified for the ballot in 2009.  But when it came time to decide when the measure would go to the voters, Council rejected the pleas by IAFF Local 689 leaders Domenick Weaver and Jeff DelBono to put it on the November 2009 ballot but instead decided to defer the vote until the November 2011 election, some two years hence.  Delay, they say, is the worst form of denial, and the union later “withdrew” the initiative.

The experience appears to have taught the firefighters’ union a lesson:  Its goal didn’t change – but its tactics did.  After the debacle with the initiative, the IAFF Local 689 leaders focused their efforts on finding and promoting candidates for mayor and Council who would carry water for the union.  In 2010, they backed a slate – Ms. Gilmore for mayor and Rob Bonta and Lena Tam for Council– whose first act after taking office was to can the union’s nemesis, Interim City Manager Gallant.  More recently, the union has bestowed its blessings – and financial support – on first-time candidates whom it can count on like Mr. Oddie and Ms. Vella.  And guess what?  Since 2010, there have been no reductions in fire department staffing, and, indeed, the head count authorized by Council has gone up.  And so have salaries – twice.

So maybe the message to interest groups who want to see action taken on their agenda is to forget about pursuing the initiative process – RIP, Hiram – and instead to focus on putting pliable politicians into office.  It seems to work for the firefighters.

Sources:

Hiram Johnson first inaugural address: hiram johnson’s first inaugural address

Beltline initiative: smart voter, measure d_ changing requirements for sales or disposals of city parks (2012); smart voter, measure d_ effective date of rezoning (measure e) (2002); 2000-10-02 alameda beltline railroad yard open space initiative

Fire staffing initiative: 2008-12-22 notice of intent; 2009-08-03 staff reports re fire staffing initiative

SunCal initiative: smartvoter, measure b_ alameda point development initiative (2010)2009-03-26 notice of intent

Sale-of-parks initiative: smart voter, measure d_ changing requirements for sales or disposals of city parks (2012); 2012-02-02 notice of intentent and text of measure

Neptune Point initiative: 2014-02-10 notice of intent and full text; 2014-07-01 ordinance adopting initiative; 2014-07-29 final version of companion measure

ARC initiative: voters edge, measure m-1 (2016); 2016-02-29 notice of intent and full text of measure

Repeal referendum: referendum petition

Landlords’ initiative: voters edge, measure k (2018); 2017-06-14 notice of intent and full text; 2017-06-29 notice of intent and full text

Open-space initiative: 2019-01-02 ex. 1 to staff report – elections code report

 

 

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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3 Responses to What would Hiram say?

  1. Bill says:

    Isn’t that the way it’s always been? Stack the cards high enough to control the outcome? The tactics of City Hall recently is why Alameda citizens do not trust the current Council members. Jim Oddie certainly experienced a less than supportive effort by voters last year. His placement on the Council is a bit like getting to the NIT Tournament, not the NCAA Tournament. I can hear his chants now. “I’m number three, I’m number three.” In regards to the Crab Cove land situation a few years back, even the Recreation and Park Commission to a stand, which is never does on issues of politics, but they knew land had to be preserved there. The Mayor criticized the Commission and made comments that indicated her lack of respect for the group. The Commission viewed that as a challenge and simply agreed that it was not the Commission who was clueless, but rather the Mayor. They, like many others were tired of the tactics politicians use to divert the facts and to “act” as though they know best. As we now know, the current Council does not know best. Alameda citizens need to get better informed and take their town back. It deserves better than what we have now.

  2. Paul S Foreman says:

    Your conclusion is on target. If the landlords and realtors should not have wasted their money and effort on Measure K, but on getting Trish Spencer, Tony Daysog, and Robert Matz elected. Although Mr. Matz was a no on K, he clearly was supportive of the current ordinance and would not have supported amendments that were not balanced between the competing interests..

    A Better Alameda PAC, of which I am the treasurer, gave zero weight to any candidates position on K, but, coincidentally, we did provide a vehicle that the landlords and realtors could have used. We did get some funds from these sources but it was not a significant portion of our contributions. In the alternative, they could have formed their own PAC or just individually supported these three candidates.

    Not only did they fail to do that, but in keeping K on the ballot and thus forcing candidates to take a position on K, they actually harmed the candidates they needed to support. When Mr. Matz came out against K, several of the K proponents who had taken his signs removed them from their property. When Spencer came out for K I am sure it also cost her votes.

    Only Mr. Daysog benefited from his yes position on K because he only needed 1/3 of the total votes cast to win a seat and the yes on K crowd put him over the top.

    If K had not been on the ballot the rent control issue would not have been amending the Charter, but supporting candidates who endorsed the current ordinance against those who wanted to radically change it by requiring just cause (a position roundly rejected by the voters in 2016 as M-1). In my view this would have led to a much different result. The tenants were smart enough to see this which is why they actually supported Council repealing the just cause amendment to the ordinance even though it removed eviction protection that they desperately wanted. The smart response to that repeal would have been for the landlords and realtors to withdraw K from the ballot and concentrate on electing a favorable majority on Council.

  3. Steve Gerstle says:

    Up until this moment, I did not think that the “open space” measure stood a chance. John Knox White is right, this measure is not about open space — at least not much about open space.
    https://www.eastbaytimes.com/2019/01/15/special-alameda-election-to-decide-fate-of-proposed-center-for-seniors-homeless/

    What the mayor and council have now done by putting their own measure on the ballot is to make this about the mayor and council. It is a redo of the November election or an unofficial runoff between Ashcraft and Spencer. In hindsight, the council putting its own measure on the ballot may well be an immense blunder. Only time will tell.

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