A matter of trust

Having written about the efforts to rip Measure A out of the City Charter and to strip the Open Government Commission of its enforcement powers, the Merry-Go-Round recently watched the videos of the Planning Board and Council meetings at which these topics were discussed.

Running through both discussions was a common undercurrent:  Of those Alamedans who care about civic affairs, quite a few don’t trust our City Council.

This is something we’re not alone in noticing.  In fact, at both meetings the presiding officer saw fit to comment about it.

Start with the Planning Board meeting on January 13.

The meeting was billed as a “workshop” on Measure A, the citizen initiative passed in 1973 to prohibit multi-family housing in Alameda (with certain exceptions), which was supplemented by another citizen initiative in 1991 restricting residential density to one unit per 2,000 square feet.  (The two initiatives are now codified as Article XXVI of the City Charter.)  It was held at the request of the subcommittee – Vice Mayor John Knox White and Councilman Tony Daysog – appointed by Mayor Marilyn Ezzy Ashcraft to consider possible revisions to the Charter.

During the public-comment period, a couple of citizens expressed a lack of confidence in Council’s devotion to development appropriate for Alameda.  “I contend that removing Measure A from the protection of the Charter would be very dangerous,” one speaker said.  (In accordance with our usual policy, we will identify citizen speakers at public meetings by name only when they say they’re representing an organization.)  “It would open the door to potential abuse from within city councils of the moment and could result in development decisions such as occurred before the passage of Measure A that impact Alameda in ways that the voting public didn’t foresee.”

Christopher Buckley, president of the Alameda Architectural Preservation Society, made a similar point, albeit more obliquely.  “Staff has suggested that a land-use regulation like Measure A doesn’t really belong in the City Charter,” Mr. Buckley said, “but it does serve as a kind of firewall against a City Council that might do something reckless based on short-term objectives.”

Board chair Ron Curtis then returned to the trust issue in his closing comments.  Based on what he had heard and read from the public before and at the meeting, Mr. Curtis said, the “big fear” was

[w]hat happens if we don’t have this protection [i.e., Measure A] and the Council decides to take what’s on the General Plan, which is acceptable to everybody, and decides to take this area and, let’s up‑zone it and everything goes out of whack.  That’s the big fear.  That’s the fear that I hear over and over again:  How can we trust the Council?  How can we trust our leaders to do what they’re supposed to do to keep the zoning?  If that trust were absolutely there, we would have no need for Measure A.  On the other hand, the perception is that Measure A is the saving grace that keeps this town on the straight and narrow.

The issue of whether Alamedans could trust their Council came up again at Council’s own meeting on February 4.

On the agenda was a recommendation by the City Attorney’s office to rewrite the Sunshine Ordinance.  The in-house lawyers proposed to eliminate the power of the Open Government Commission to nullify an ordinance passed by Council in violation of the Sunshine Ordinance and to order corrective action.  The OGC itself unanimously had opposed the recommendation, but Assistant City Attorney John Le insisted that the remedy – which had been part of the Sunshine Ordinance since it was enacted in 2011 – was a purportedly illegal “delegation of legislative authority.”

During the public-comment portion of the meeting, the discussion began mildly enough.  “The Open Government Commission is more likely to be viewed by the public as a neutral arbiter of Council adherence to legislative procedures than the Council itself,” said Susan Hauser, speaking on behalf of the League of Women Voters, which opposed the City Attorney’s proposal.

Tension ratcheted up a bit when the next speaker told the Council members explicitly that “we just don’t trust you.”  Frankly, we were inclined to disregard this comment as politically motivated – the speaker had run against Rob Bonta for State Assembly and led the effort to recall Council members Jim Oddie and Malia Vella – but then the point was picked up by Bill Smith, a member of the LWV and a founder of Renewed Hope, the housing advocacy group, who always (in our experience) takes a reasoned approach in his remarks to Council.  “[T]here are a number of people in the community that don’t trust the Council for a number of things,” Mr. Smith said.  “This is an opportunity for you to earn back some of that trust for certain areas, and that is by making sure that the Open Government Commission has enforcement powers.”

And if we had any doubt that the trust issue was a sensitive one for those who currently sit, or once sat, on the dais, it was dispelled when both former mayor Trish Spencer and current mayor Ashcraft admonished those citizens who had raised it.  (This is, we should note, the first time we can recall Ms. Spencer and Ms. Ashcraft ever agreeing about anything.)

“If you don’t trust the Council, you don’t vote them in or you recall them; you don’t implement the wrong law,” Ms. Spencer said during the public-comment period.  Later, Ms. Ashcraft, as is her wont, was more expansive – and more condescending:

We’ve heard it said, gosh, even by the League of Women Voters, that people don’t trust elected representatives.  Well, here’s the thing, I say this often, if you choose to be in elected office, you’d better have thick skin, a sense of humor, and a backbone, and I can attest to the fact that every one of us sitting up here don’t all agree, come from different perspectives, but we’re working awfully hard for the people we represent.  And I would further quote my favorite president of recent times, Barack Obama, who in his closing address to the nation said if you don’t like the folks who are representing you and you think you can do better, pick up a clipboard, collect the signatures, and run for public office. And I wish more people would serve on our boards and commissions, use that as a stepping stone to elected office.

What’s going on here?

Distrust of government is, of course, a well-established fact of American life; it didn’t suddenly spring up with the election of – pick your poison – Donald Trump or Nancy Pelosi.  To quote H. L. Mencken:  “Every decent man is ashamed of the government he lives under.”

Mencken, as usual, exaggerates for effect.  But the Merry-Go-Round takes, and endorses, an attitude of what we’d call “healthy skepticism” toward elected officials.  Not only are office-holders subject to human frailty, they’re also susceptible to political influence, so they can’t be counted on to heed the popular will or follow the established rules in every instance.  As a result, the citizenry might find it necessary to create mechanisms for preventing a legislative body from straying too far – or for rectifying its actions when it does.  A Charter provision and a nullification remedy perform those functions.

This is the sort of argument we understood Planning Board member Alan Teague to be making during the Measure A workshop.

The recently passed Senate Bill 330, Mr. Teague noted, prohibited a local legislative body from down-zoning (i.e., reducing the number of housing units allowed in) a residential area.  “With the advent of SB 330,” he argued, “the whim of the City Council for a near-term goal of allowing a [significantly higher] density would not be able to be undone by a subsequent Council.”   By contrast, if the density restriction imposed by Measure A was left in the Charter, Council wouldn’t have been able to exercise its “whim” in the first place.  He would be “wary,” Mr. Teague concluded, of repealing that section of the Charter.

It is also the sort of argument we understood both Paul Foreman of the Alameda Citizens Task Force and Vice Mayor Knox White to be making during the discussion of the Sunshine Ordinance.  (It was a night, it appears, for strange bedfellows.)

The drafters of the Sunshine Ordinance made it quite clear, Mr. Foreman said, that they didn’t “want the city council policing its own process.”  Mr. Knox White, who served on the Sunshine Task Force, concurred that the drafters wanted the Open Government Commission to “have teeth.”  He and everyone else on the Task Force agreed (of course) that the Sunshine Ordinance should ordain that, when the Commission found a violation, “something happens that causes the City to sit up and re‑assess.”  Limiting the OGC to “shaming” the offending body wasn’t good enough.

Having made these comments, Mr. Knox White nevertheless supported the City Attorney’s proposal to eliminate the OGC’s current enforcement powers because, he said, the City’s lawyers had “explained to me that null-and-void is not a legal finding”; he then offered a substitute provision, which Mr. Le obligingly put into legalese.  This solution didn’t muster a majority, so Mr. Knox White ended up voting against the motion to accept the staff report.

(Interestingly, Lena Tam, the former Councilwoman who championed creation of the Sunshine Task Force in the first place, took issue with the City Attorney’s position and argued for preserving the nullify-and-correct remedy.   In a letter to the Sun, which was published, unfortunately, after the Council meeting had occurred, she wrote:  “Eliminating the current enforcement provisions would undermine trust in our city government by allowing the Council to be its own watchdog.”)

In their own ways, both Measure A and the nullify-and-correct remedy in the Sunshine Ordinance thus protect Alamedans against a Council majority bent on defying the popular will or ignoring the established rules.  But the harder question is whether Alamedans really need that protection.  And the answer depends on the extent to which our citizens can trust their elected representatives to do the right thing in the right way.  So we come full circle back to the trust issue raised by the commenters.

An argument certainly can be made that the current Council hasn’t earned the necessary trust.  Three of its members – Ms. Ashcraft, Mr. Oddie, and Ms. Vella – voted to enact an ordinance prohibiting so-called “no-cause evictions” barely months after the voters had resoundingly rejected an initiative imposing such just a ban.  It’s hard to imagine more blatant disregard of the popular will.  Likewise, two of its members – Mr. Oddie and Ms. Vella – interfered with the merit-based process set up by the City Manager to select a fire chief by pressuring her to pick the candidate tapped by the union boss to whom the two had pledged their obeisance.  It’s hard to imagine more brazen disdain for the Charter-ordained rules.

What other anti-democratic tricks, one wonders, might these three have up their sleeves?  (And don’t forget Mr. Knox White, who often treats with disdain any views held by the hoi polloi that don’t mesh with his own enlightened policy prescriptions.)

It strikes us, however, as wrong-headed to create (or retain) restraints that will bind future Council members just because there is reason to be suspicious about a few of the current ones.  Maybe the question ought to be posed this way:  Assume that Council is completely trustworthy, and all of its members can be relied upon to pursue only the public interest and play strictly by the rules.  Would you want to circumscribe the ability of that kind of Council to change the zoning laws?  If not, you’d probably want to get rid of Measure A.  By the same token, would you want to invalidate a law passed by that kind of Council because of a noticing defect?  If not, you’d probably want to get rid of the nullification remedy.

So there’s your answer.  Now all you have to do is find five candidates who fit the bill and vote them into office.

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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4 Responses to A matter of trust

  1. Robert Schrader says:

    Based on recent events, it is summarily naive to expect that Alameda would suddenly vote in representatives that would all concur on reasonable policies. The council make-up reflects the cultural divide and distrust within the community. And – as long as the behavior of the City Council is accepted – and even encouraged as seen by recent election results – this problem is irresolvable. At the end of the day – the founding fathers struggled with just this issue of ‘factions’ overwhelming the general welfare by structuring a system of government incorporating checks and balances – which I submit is the role of the OGC. Secondly, the will of the people should rightly prevail, so when there is a policy added to the City Charter through direct vote, I think the City Council should defer from discussions regarding removing or nullifying it and instead make a determination of taking the issues they have with it to the electorate. Only the electorate should have the power to change the City Charter – yet another check and balance applied to the City Council.
    There, in my mind, is certainly nothing wrong with maintaining or even enhancing the line of responsibility between the City Council and the people they represent – but this issue is really an issue of balance between representative and direct democracy. Sometimes, reasonable and responsible representatives should defer, I think, to the electorate. This one of those cases.

  2. Paul S Foreman says:

    Thank you for another fine commentary. I agree with you that the elimination of no-cause evictions with no real data to support it, the Charter violations of Mr. Oddie and Ms. Vella concerning the Fire Chief firing, and the failure of the remaining three members of Council to even present a motion of censure of their conduct has created a real crises of trust for many of our citizens, including myself.

    However my issues with the current Council had nothing to do with my hesitancy to modify or repeal Measure A or my support of the OGC’s enforcement powers. I would have the same position on those issues even if my political views were entirely in line was a majority of Council.

    My position on the OGC is very simple. I agree with the City Council of 2011 that any Council should not be policing its own misconduct with regard to the Sunshine Ordinance and I agree with the 2011 City Attorney, you, and at least two other attorneys (one of whom Bryan Schwartz, is the Chairman of the OGC} that there is no legal impediment to the OGC having this authority. City Council has asked the OGC to recommend new enforcement language which will give the OGC more leverage in this process while not conflicting with our current City Attorneys legal position. I intend to provide input into that effort.

    My position on Measure A is more nuanced. I am a firm believer in representative government and would normally oppose locking a zoning restriction like Measure A into our City Charter, but there are exceptions to any rule. Alameda being sandwiched between the two large job markets of Oakland and San Francisco in such close proximity that commute time to either job market makes it a prime target for extreme pressure from both the State housing laws and private developers. We have real evidence of the result of that pressure in the 800 or so single family homes that we lost before the enactment of Measure A.

    That is not to say that we should not consider certain modifications to Measure A to help us meet the Bay Area housing crises, but I do think that we need Measure A to protect our existing built-up low-density old neighborhoods from invasion by high density multi-storied apartment buildings.

  3. Seriously? says:

    Thank you for making the connection between these two issues. You’ve hit the nail on the head. Removing a watchdog for any city council (and especially this one) is cray-cray given their abysmal track record with the city manager fiasco/Grand Jury/payoff to former city manager/secret tape recording/grifting for attorneys fees affair. Case in point: the “hearings” about Measure A are only to give people the illusion of democratic voice, as the progressive Council is determined to repeal it, come hell or high water.

  4. Lena Tam says:

    Thanks for quoting from my letter to the Alameda Sun, which was sent to the City Council on February 3, before their City Council meeting on the Open Government Commission. Timing relevant letters to the Alameda Sun is challenging as they are a a weekly newspaper.

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