Let’s get ready to rumble!
Those of our readers who like to watch a good fight between the public-spirited impulses of the citizenry and the self-protective instincts of the bureaucracy ought to tune in Tuesday night to watch the latest round in the battle between the Open Government Commission and the City Attorney’s office.
The venue will be Council chambers, where the elected officials will be asked – again – to decide what to do about two cannabis ordinances passed last October that the OGC unanimously found to be invalid because the agenda notice was defective.
Since last November, the OGC has sought to use the power granted to it by the Sunshine Ordinance to ensure that the agenda for a Council meeting gives an adequate heads-up to the public about the actions Council will be considering and voting on.
And since last November, the City Attorney’s office has tried to obstruct the Commission’s exercise of that authority, going so far as to assert that the remedy provided in the Sunshine Ordinance – unchallenged since the law was adopted in 2011 – is illegal.
In fact, by comparing the in-house lawyers to pugilists, we’re being charitable. When one reviews the record, the City Attorney’s office, and Interim City Attorney Michael Roush in particular, comes off not so much like a boxer in the ring but like a comedian in a burlesque show. Indeed, an even less flattering analogy comes to mind.
At the last OGC meeting, chair Heather Little, acting like Nancy Pelosi cajoling Donald Trump, held out an olive branch to Mr. Roush: “You can say you made a mistake,” she suggested. But like the President spurning the Speaker, Mr. Roush refused to back down: He was right, the Interim City Attorney insisted, and he’d written a “confidential memorandum” – given only to Council and not made public – to prove it.
Build that wall!
Before we mix the metaphors too badly, we’ll return to the original motif and, as an
ex-sportswriter, give a round-by-round account:
Round One. Last October, staff presented Council with two draft ordinances setting up a framework for the sale of marijuana in the city for recreational use. The proposed laws permitted only two “dispensaries” to sell pot on the premises, and the agenda for the meeting reflected that fact. At the meeting, however, Vice Mayor Malia Vella proposed to increase the number to four – as long as two of the stores also offered delivery. Mayor Trish Spencer and Councilman Jim Oddie concurred, and, by a 3-to-2 vote, Council passed an ordinance incorporating the higher number.
The problem was, neither the agenda item nor the staff report gave any notice – or even any hint – to the public that Council was going to double the number of onsite retail pot stores permitted in the city. And when long-time tobacco-control advocate Serena Chen found out that it had done just that, she filed a complaint with the OGC, alleging that the agenda had failed to include a “meaningful description of each item of business to be transacted or discussed at the meeting,” as required by the Sunshine Ordinance.
The City Attorney’s office apparently was so sure that the OGC would reject Ms. Chen’s complaint that, prior to the Commission’s November 14 meeting, Acting City Attorney Alan Cohen provided the OGC with a six-page draft decision for them to sign denying it.
The “reasoning” was specious. The agenda title, Mr. Cohen pointed out, stated that the proposed ordinance would “add two delivery-only dispensaries.” This language, he claimed, met the requirements of the Sunshine Ordinance because “it apprised members of the public that there would be an increase in the number of dispensaries that would offer delivery services. . . .” There was no need to be more specific: two dispensaries, four dispensaries; on‑premises sales, off‑premises sales – the quoted language, he argued, was sufficient to inform the public that any permutation was possible.
None of the five Commissioners bought this balderdash, and the Commission voted unanimously to sustain Ms. Chen’s complaint and to declare “null and void” the action taken by Council pursuant to the defective notice. Not only did the Sunshine Ordinance itself authorize that remedy, but, when asked about it by Commissioner Bryan Schwartz, Mr. Roush himself confirmed it was proper.
And there the matter should have ended. All staff had to do was to put the ordinances (as revised to reflect the majority’s preference for more on-site retail pot stores) on the next Council agenda for a new first reading, and the process could move merrily along.
Instead, we got Round Two.
The Sunshine Ordinance requires the OGC to issue a written decision within 14 days after a hearing, and, ordinarily, the task of drafting falls to the City Attorney. But rather than writing up the result reached by the OGC, Mr. Roush (or his superiors) decided unilaterally to call a “special” meeting for the Commission to “reconsider” its verdict. Contrary to his previous unequivocal statement, Mr. Roush now maintained that the OGC did not have the authority to declare an action by Council “null and void.”
He “supported” this contention with a staff report containing a hodgepodge of legal assertions, none of which made a persuasive, much less compelling, case for his newfound conclusion.
Both Paul Foreman, the former OGC chair who is a retired lawyer, and Cross Creason, an Alameda resident who practices law in San Francisco (and who, as far as we know, is only a civic-minded citizen with no ax to grind), have written – and disseminated to anyone who wants to read them – detailed legal analyses exposing the flaws in the City Attorney’s argument. From our perspective, the key text is section 3.2 of the City Charter, which specifically provides that, “The Council may confer upon any board or officer powers and duties additional to those set forth in this Charter.” That is exactly what Council did when it created the Open Government Commission and gave it the power to declare “null and void” an action by Council that violated the Sunshine Ordinance. End of story.
The OGC met again on December 17. It took the Commissioners only about 12 minutes to vote unanimously to dismiss the request for “reconsideration” and to ask the City Attorney for “assistance” in preparing a written decision memorializing their November 14 decision. (One commissioner, Mr. Schwartz, was unavoidably absent.)
Mr. Roush had come prepared for this eventuality. Before the meeting, he gave the Commissioners two draft written decisions, one granting reconsideration and denying the complaint, and the other purporting to affirm the prior ruling. The first document, of course, went into the trash, but Mr. Roush urged the Commissioners to adopt the second one, which, he said, “could be relatively easily wordsmithed to carry out what you’re saying with respect to the matter.”
But the second document was written in such a way to preserve as much of the City Attorney’s position as possible – even though the OGC had just summarily dismissed it – and more than “wordsmithing” was necessary to reflect the Commission’s actual ruling. Mr. Roush wrote that “the complaint poses a very close question”; the OGC struck the phrase. Mr. Roush described the Commission’s authority to set aside a Council action as “circumscribed”; the OGC struck the word. Finally, and most disingenuously, Mr. Roush proposed that the decision state merely that, “City Council should consider repealing” the two cannabis ordinances. The OGC struck that verbiage, too, and inserted language making its judgment crystal clear: The two ordinances “are null and void.”
From time to time, we’ve seen lawyers try to snatch victory out of defeat by crafting a written order that doesn’t really reflect the ruling from the bench. Mr. Roush apparently attended that school.
The written decision ultimately signed by the Commissioners left the door open again for the City Attorney to end the tap dancing by accepting the OGC’s decision and putting the ordinances (as revised to reflect the majority’s preference for more on-site retail pot stores) on the next Council agenda for a new first reading.
Instead, we got Round Three.
For the January 15 Council meeting, staff put on the agenda an item whose description Vice Mayor John Knox White, a veteran of the Transportation Commission and Planning Board, later described as “one of the most difficult titles I’ve ever read.” Staff certainly didn’t adhere to the simple and straightforward language used by the OGC. Instead, it appeared that, when all the surplusage was eliminated, staff was proposing that Council (1) adopt new ordinances containing all of the changes it had made to the cannabis ordinances last October, and then (2) repeal the ordinances embodying those changes that the OGC had declared null and void.
This made no sense at all. If the October ordinances were “null and void,” there was no need for Council to pass a motion to “repeal” them. Indeed, the Sunshine Ordinance doesn’t give Council any power to review an OGC decision invalidating an action by that body. (Which is hardly surprising: If Council had the right or duty to confirm or reverse an OGC decision in such a case, what would be the point of having an OGC?) Moreover, if staff’s proposal truly was intended simply to “carr[y] out the spirit and intent of what the OGC did,” as Mr. Roush claimed, repeal should go first as an independent item. Then, Council could decide whether it wanted to revive the ordinances in the form they were passed last October – or perhaps change them again.
The City Attorney’s proposal, as drafted, didn’t give Council that option. Repeal of the October ordinances would not occur until after the newly proposed ordinances took effect. If Council adopted those ordinances, the law would not change, since those ordinances had exactly the same substantive terms as the October ordinances. And if Council didn’t adopt the newly proposed ordinances, the law wouldn’t change, either, since the October ordinances would remain in effect. Heads the City Attorney wins, tails the public interest loses.
This was too much for Mayor Marilyn Ezzy Ashcraft. “You’re saying that, regardless of how City Council votes tonight, the previous ordinances will stand, either with a new number or the way they were?” she asked Mr. Roush, a note of incredulity creeping into her voice. “Correct,” he said. “I might not be alone,” Ms. Ashcraft responded, “in wondering why we’re even bothering to go through this exercise if the outcome is already known.”
But the exercise turned out to be pointless for another reason as well. Before the agenda item was called, Councilman Tony Daysog recused himself (on the grounds that he lived close to a potential pot store). That left only four Council members voting on the item. Mr. Oddie (who, incidentally, received $1,500 in cash contributions from cannabis operators in his recent campaign) and Ms. Vella voted to accept the staff recommendation. Ms. Ashcraft and Mr. Knox White voted against it, not, we suspect, because they’re anti-cannabis but because they were appalled by the way the matter was being handled. The motion thus failed for lack of a majority.
Next came Round Four.
Ms. Chen, who brought the original OGC complaint, was no better able than the Council members themselves to figure out from the agenda item what staff was asking Council to do on the 15th or what its effect would be. So she brought a second complaint before the OGC challenging the adequacy of the notice for that meeting. (She also complained that staff had failed to provide Council with a copy of the OGC’s written decision.)
Once again, Mr. Roush provided Council with a draft decision denying the complaint. Once again, the Commissioners unanimously voted to sustain it. (Commissioner Mike Henneberry was absent.)
Although, by this time, the membership of the OGC had changed – Rasheed Shabazz and Ruben Tilos had replaced Mr. Foreman and Irene Dieter – its commitment to the Sunshine Ordinance had not. “We were pretty clear the first time around that we needed a re-do,” Mr. Schwartz stated in recapping the events, “not because of . . . any opposition to the underlying resolution or its intention but simply because it wasn’t made clear enough to the public what was before the Council.” The situation was no better the second time around, he said: The agenda item for the January 15 meeting was “very unclear” to him and “a reasonable member of the public” would find it “very unclear as well.” Accordingly, the “correct thing for transparency and democracy in our city” is to “just do it again.”
So now we get to Round Five.
Here, in haec verba, is the agenda item for Tuesday’s Council meeting:
Recommendation to Discuss and Potentially Take Action Concerning the Open Government Commission’s (OGC) Decision Directing that Ordinance Nos. 3227 and 3228 (Relating to Cannabis Businesses) are “Null and Void”, including Without Limitation Any Combination of the Following: (1) Take No Action, thereby Confirming that Ordinance Nos. 3227 and 3228 Remain in Full Force and Effect, (2) Adopt a Motion to Implement the Open Government Commission’s Null-and-Void Decision, thereby Expressing Council’s Concurrence that the Ordinances are Null and Void, (3) Direct Staff to Notice a Public Hearing Concerning the Repeal (if necessary) of Ordinance Nos. 3227 and 3228 and/or the Replacement of Such Ordinances With the Same or Similar Provisions, (4) Direct Staff to Prepare Amendments to the Sunshine Ordinance to Address Concerns Noted in this Agenda Report, including the Exhibit Files, or Raised at the Meeting, or (5) Any Other Related Actions Proposed by Council.
The Merry-Go-Round seldom gives advice to Council (usually because we know they won’t follow it), but this time we can’t resist. First, Council should acknowledge and accept – finally and formally – the OGC’s decision that the cannabis ordinances passed in October are null and void. Then, if they want to enact ordinances with the same terms as the October ordinances (and Mr. Oddie has hinted that he has other changes in mind), they should direct staff to put those ordinances on the next Council agenda for a new first reading. And if they want to cut back – prospectively – on the remedies available to the OGC when it finds a Sunshine Ordinance violation, they should direct the City Attorney to prepare, for placement on a future Council agenda, an amendment making the desired changes.
Maybe, if they did so, the bout would be over at last, and we could all head for the craps tables.
Sunshine Ordinance: Alameda Municipal Code, Article VIII (Sunshine Ordinance)
November 14, 2018 O.G.C. meeting: 2018-11-14 staff report re complaint; 2018-11-14 Ex. 5 to staff report – Draft Commission Decision
February 19, 2019 Council meeting: 2019-02-19 staff report re OGC decision on cannabis ordinance