City Attorney called for interference

This being Super Bowl weekend, we give you the following case:

Kansas City has the ball on the 49er 1-yard line.  It’s fourth down.  The Chiefs call a bootleg around right end, and Patrick Mahomes dives across the goal line.

But there’s a flag on the play.

“Holding,” says the referee.  “Offense, number 87.  Five-yard penalty.  Replay fourth down.”

The 49ers’ defense starts to line up again.  But then the camera cuts to Kansas City coach Andy Reid on the sideline.

He addresses the referee.  “Thank you for giving us your opinion,” he says.  “But I didn’t see any holding.  So the play stands, and it’s a . . .” – Reid raises both arms –

Now our readers probably won’t observe this scene in the 49ers-Chiefs game.  But if they come to Tuesday’s Alameda City Council meeting, they’ll get to see whether Council will accept a staff recommendation to put the Open Government Commission into the same position as our hypothetical Super Bowl ref:  It can spot a rules infraction – i.e., a violation of the Sunshine Ordinance – but it will lack the power to declare a play – i.e., an ordinance or resolution – made in violation of the rules null and void and require the offending team – i.e., Council – to do it over again.

And if Niners’ fans don’t like the result of our imaginary scene, a lot of Alamedans won’t like this outcome, either.

Indeed, one of them, OGC chair Bryan Schwartz, already has made known his views on the subject.  “[T]his is a very substantive provision,” Mr. Schwartz told his colleagues at a December 18 meeting to consider the staff recommendation, “and I’ll tell you right now, there’s no set of circumstances under which I’d support taking away this body’s authority to nullify Council actions that violate the Sunshine Ordinance, because the Sunshine Ordinance is something that is really small-d democracy in action and something I feel strongly about.”

This issue has been percolating for nearly two years now.

The story began on November 14, 2018, when the OGC heard a complaint by an Alameda resident, Serena Chen, about Council’s decision that October to amend the cannabis ordinance to authorize the sale to the public at four retail stores of marijuana for recreational use.  The agenda for the October meeting, Ms. Chen alleged, failed to comply with the Sunshine Ordinance’s requirement to provide “a meaningful description of each item of business to be transacted or discussed at the meeting.”  According to the agenda, the amendments would allow pot to be sold at four locations, but only two of them would be retail stores open to the public; the other two would be “delivery only.”

The City Attorney told the Commission that there had been nothing wrong with the description in the agenda (which, of course, the City Attorney had been involved in drafting).  But the OGC didn’t buy it.  After the Commissioners made clear their finding that a violation of the Sunshine Ordinance had occurred, Commissioner Irene Dieter asked about remedies.

“I can answer that,” Assistant City Attorney Michael Roush 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, nullify Council’s October decision, and direct Council “to re-post notice of the meeting” to cure the defect in the earlier notice.  It passed unanimously.

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 the City Attorney’s office didn’t prepare any draft after the November 14 meeting; instead, it asked the City Clerk to schedule a “special meeting” of the OGC.

The City Attorney then posted on the City website a memo contending that, contrary to the recitation of available remedies by Mr. Roush, the OGC 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 take the action the OGC previously had prescribed.

At the “special” meeting, it took the OGC fewer than 10 minutes to reject this advice.  Again unanimously, the Commission denied the request for re‑consideration and ordered the City Attorney to prepare a written order reflecting its November 14 ruling.

The issue then went before Council.  The City Attorney continued to insist that the OGC did not have the “legislative authority” to issue a nullify-and-correct order.  Nevertheless, after several months of further song-and-dance, Council ultimately did as the Commission had directed and re-noticed the item.  The amendments finally passed their second reading on April 16, 2019.

And there the matter has stood for nearly a year.  But, even though Yibin Shen has replaced Janet Kern as City Attorney, the in‑house lawyers haven’t given up the fight.

Last December, the City Attorney’s office submitted to the OGC a set of proposed amendments to the Sunshine Ordinance.  The staff report made it appear as if the lawyers were simply suggesting “clean-up” updates to the Ordinance, which hadn’t been revised since its adoption in 2011, and many of the proposed changes fit within that category.  But the report stated that the City Attorney also wanted to re-write the penalties section to “clarify that the appropriate remedy” for a violation of the Ordinance “would be for the Open Government Commission to issue a recommendation that the policy body cure and correct.”

In fact, as the redline showed, the City Attorney was proposing to eliminate the Commission’s power, upon finding a violation of the Sunshine Ordinance, to declare an action by Council (or another body) “null and void” and to “issue an order to cure and correct.”  Instead, all the Commission could do was to “recommend to the originating body steps necessary to cure or correct” a violation of the ordinance.

As a result of the November 2018 election, the membership of the Commission had changed since the OGC originally ruled on the cannabis-ordinance amendments.  (Each Council member appoints one Commissioner; Rasheed Shabazz was appointed by Vice Mayor John Knox White, and Ruben Tilos by Councilman Tony Daysog, on January 2, 2019.)   But the new Commissioners were no more receptive to the attempt to circumscribe the OGC’s powers than their predecessors had been, and they voted unanimously to reject the City Attorney’s recommendation.

So now the matter comes before Council again.

The staff report to the OGC did not lay out any legal reasoning behind the City Attorney’s position, and the staff report to Council is only slightly more informative.  Nevertheless, we’ve read all of the City Attorney’s published memoranda of law as well as two separate analyses prepared by Alameda attorneys Cross Creason and Paul Foreman.  As we see it, the effort to emasculate the OGC poses both a legal and a policy issue.

First, the legal issue.

There can be no doubt that, in issuing an order declaring the cannabis-ordinance amendments passed in October 2018 “null and void” and directing Council to re-notice them, the Commission was exercising a power granted to it by the City Council pursuant to the City Charter.

Section 3.2 of the Charter provides that, “The Council may confer upon any board or officer powers and duties additional to those set forth in this Charter.”  Council created the Open Government Commission as the primary body responsible for enforcing the Sunshine Ordinance with the power to “hear and decide” citizen complaints.  Moreover, in section 2-93.8, it gave the OGC the express authority, upon finding a violation of the “public access to meetings” requirements, to nullify an action by Council and order corrective measures.

What the City Attorney appears to be arguing is that Council acted illegally when it granted that authority to the OGC.  As we understand it, the argument goes like this:  Remedying a violation of the Sunshine Ordinance by declaring an ordinance “null and void” and directing that it be re-noticed constitutes the exercise of a “legislative power.”  But only the legislative body itself – i.e., Council – may exercise a “legislative power.”  Therefore, the “delegation” by Council to the OGC of the authority to issue the remedies set forth in section 2-93.8 was unlawful.

Now we should note that, when Council adopted the Sunshine Ordinance in 2011, neither the City Attorney nor any Council member questioned the remedial authority it conferred on the OGC.  Likewise, when the nullification issue surfaced in November 2018, Assistant City Attorney Roush raised no red flags.  Of course, wisdom, as Justice Felix Frankfurter once said, should not be rejected merely because it comes late.  But wise the City Attorney’s argument is not.

Frankly, we find perplexing the assertion that, by issuing an order under section 2-93.8, the OGC is exercising a “legislative power.”  As commonly understood, the “legislative power” consists of the power to pass, amend, and repeal laws.  But the OGC is doing nothing of the sort when it issues an order declaring an ordinance “null and void” and directing that it be re-noticed.  Instead, it is enforcing a law – the Sunshine Ordinance – enacted by Council.  And there surely is nothing strange about Council giving another entity the power to enforce the laws Council itself has passed.  What do you think the police department does every day?

And even if the OGC were exercising a legislative power when it nullifies an ordinance and directs that it be re-noticed, Council was perfectly within its rights in delegating such authority to the OGC.  That is the lesson of the California Supreme Court case of Kugler v. Yocum, in which the Court held that “legislative power may properly be delegated if channeled by a sufficient standard.”  It was “well-settled,” the Court continued, that “the legislature may commit to an administrative officer the power to determine whether the facts of a particular case bring it within a rule or standard previously established by the legislature.”

That is precisely what Council did in the Sunshine Ordinance.  In section 2-91, it established the rules and standards governing public access to meetings.  It then committed to the OGC the power to determine whether, in a given case, Council (or another body) had complied with those rules and standards.  And it gave the Commission the authority to order a remedy if it found that a violation had occurred.  Which makes perfect sense:  Who else is supposed to impose the sanction – the offending body itself?  That would be like expecting Andy Reid to march off the holding penalty.

The City Attorney’s various legal memoranda never mention Kruger, and the principal case they cite in fact supports the OGC’s position.  In Salmon Trollers Marketing Association v. Fullerton, the state Legislature gave the Fish and Game Director the power to suspend existing statutes or regulations that were inconsistent with a multi-state fishery management plan until the Legislature could adopt laws conforming to the plan.  The Court of Appeal upheld the statute.  Giving an agency power to “render legislative acts inoperative in one sense or another” was lawful, the Court stated, “so long as the usual conditions of valid delegation – retention of control over ‘fundamental policy decisions’ and appropriate standards and safeguards for the exercise of the delegated power – are met.”

So, too, here:  in the Sunshine Ordinance, Council articulated, and retains control over, the “fundamental policy” of ensuring that Alamedans “have timely access to information, opportunities to address the various legislative bodies prior to decisions being made, and easy and timely access to all public records.”  Moreover, it set forth standards and safeguards – the specific rules laid out in sections 2-91.2 through 2-91.17 in the Ordinance – for the OGC to apply in implementing the stated goal.  If the state Legislature could empower the Fish and Game Director to “suspend” an existing statute so that it had time to pass new laws, surely the Alameda City Council can give the OGC the power to strike an ordinance so that Council has an opportunity to do it right the second time.

So much for the law.  Now for the policy.

Let’s be clear:  The remedial power granted to the OGC by the Sunshine Ordinance is a limited one.  The OGC does not have the authority to declare an ordinance “null and void” because a majority of its members believe a decision by Council was wrong as a matter of principle (or politics).  And there is no evidence that any Commissioner acted for that reason in nullifying the cannabis-ordinance amendments in November 2018.  Nor does the OGC have the authority to wipe an ordinance off the books permanently (or to prevent Council from re-enacting it).  Instead, section 2-93.8 contemplates that the Commission will accompany a nullification ruling with an order to “cure and correct” the violation.  And that it is exactly the kind of order the OGC issued in November 2018 – and exactly the way in which Council ultimately responded in April 2019.

Which raises the question:  If the OGC’s remedial power is so limited, why should it have that power at all?

The short answer is:  Somebody needs to have the authority to enforce the requirements of the Sunshine Ordinance – and the OGC is the best candidate for the job.

With all due respect to the fine public servants on the dais (whoever they may be at the time), we don’t think that they can be relied upon to police themselves.  Imagine what would have happened had Ms. Chen, after learning that Council had approved the cannabis-ordinance amendments, gone to the next Council meeting and complained about the notice in the October agenda.  In all likelihood, the Council members would have nodded politely – and then gone about their business.  After all, in the City Attorney’s opinion, the description in the notice had been just fine.  In any event, while golfers may call a penalty on themselves, politicians seldom do.

What about going to court?

Under the Brown Act, the state’s open-meeting law, a judge may issue an injunction to prevent an actual or threatened violation of the Act by a legislative body.  In addition, if the violation already has occurred, a judge may issue an order invalidating the action.

There are two problems with this option.  First, although the Sunshine Ordinance is modeled on the Brown Act, its provisions often are more detailed, and more restrictive, than state law.  For example, the Brown Act requires only that an agenda contain a “brief general description of each item of business to be transacted or discussed at the meeting.”  By contrast, the Sunshine Ordinance mandates a “meaningful” description of the item and then goes on to elucidate just what constitutes such a description.  As a result, a citizen like Ms. Chen may lose a suit under the Brown Act – even though her claim under the Sunshine Ordinance is entirely valid.

Moreover, litigation is, as we’ve been so often told, an expensive process.  Mike Bloomberg and Tom Steyer may be willing and able to spend their own funds to protect what they see is the public interest, but why should Ms. Chen be forced to bear this burden?  Litigation also takes time.  The parties file complaints and answers and – heaven forbid – demurrers and motions for summary judgment, and the judge seldom rules from the bench.  In the meantime, the challenged ordinance remains in limbo.

Giving the OGC the power to declare an ordinance “null and void” and order corrective action would seem to be a less expensive, and no less efficacious, solution.  All it takes for a citizen to raise an objection to an agenda notice is filing a complaint with the OGC.  And if the OGC finds that a violation has occurred, it can issue an order similar to one under the Brown Act invalidating the challenged action and requiring Council to do it over again in compliance with the Sunshine Ordinance.  As Mr. Foreman, a former OGC chair, put it in a recent email to Council,

the current enforcement provisions of our Sunshine Ordinance have the salutary effect of providing an alternative dispute resolution procedure to both the City and the complainant.  Without it a complainant’s only remedy is hiring a $400/hour attorney to litigate the matter for the limited purpose of a remand for a redo.

We have no idea how the sitting Council members will respond to the City Attorney’s recommendation to change the law.  But we’d urge them to think of themselves, for once, not as “progressives” but as “Progressives.”  Maybe someone on the dais will remember that it was a true Progressive – Hiram Johnson – who championed the cause of open government a century ago.  Let’s see whether a majority of our Council members are willing to let the City’s Sunshine Ordinance continue to serve that purpose.


Proposed amendments: 2019-12-18 staff report to OGC re amendments; 2020-02-04 staff report re amendments; 2020-02-04 Ex. 1 to staff report – redline

Legal memos: 2018-12-17 memo from Roush; 2018-12-17 REVISED Staff Report; 2018-12-17 legal analysis

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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5 Responses to City Attorney called for interference

  1. 2wheelsmith says:

    The party line breakdown in the U.S. Senate regarding impeachment illustrates your observation: “In any event, while golfers may call a penalty on themselves, politicians seldom do.” What’s right for the party is right for the nation and city!

    The League of Women Voters recently sent a letter to every city council member that supports the Open Government Commission keeping its enforcement power. The reasoning in the letter was very similar to yours and that of Paul Foreman. My thanks to the both of you for taking the time to rebut the City Attorney’s thread bare arguments against the council delegating the enforcement power to the commission.

  2. Pingback: Unchecked Executive Privilege at City Hall | I on Alameda

  3. Steve Jameson says:

    Let’s face it. Serena Chen isn’t concerned about the Sunshine Ordinance because it represents truth, honesty and goodness by virtue of openness of City Council discussion. She simply has a nonobjective view of marijuana that she puts out there as a hired spokesperson. If she were truly concerened about public safety she would apply her efforts to the numerous venues that sell alcohol. A drunk driver in Alameda killed a pedestrian about two days ago. Where is Serena Chen’s concern over public safety about this incident? Silence. Who would you rather have your child ride with: a drunk driver or a driver that has smoked marijuana?

    Ed. note: We remind our readers that the Merry-Go-Round discourages commenters from making ad hominem attacks.

    • Serena T Chen says:

      For the record, all of my efforts to ask the Council to incorporate public health protections into cannabis legislation were done so completely voluntarily as an Alameda resident. I was not and am not being paid for any of my efforts on cannabis control in Alameda. I’ve spent 20+ years helping cities adopt smokefree and tobacco control laws. I am being paid to research existing science and research on the impact of cannabis legalization in other states and cities in another county. When Alameda decided to allow cannabis dispensaries, I wanted to share all that I’ve learned from working on tobacco control and substance abuse prevention best practices with council members. And yes I have written about alcohol. I am concerned about drunk driving as most people are. I am also concerned about drugged driving. Should we double the number of erratic drivers?

  4. Steve,
    Opinions about Ms. Chen’s sincerity are irrelevant to the provisions of the Sunshine Ordinance and whether or not they should be changed.

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