Charter follies

Last week, Council met on three consecutive nights to consider the recommendations made by a subcommittee appointed in December 2018 to propose revisions to the City Charter. Indeed, two of the meetings were devoted exclusively to that topic.

So the ordinary Alameda voter may well be wondering: Which proposed changes to the Charter did Council decide to submit to the electorate this November:

  • Will voters be asked to vote to amend the Charter to allow future Council members to increase their own pay?
  • Will voters be asked to vote to revise section 7.3 of the Charter, which prohibits interference by Council members with city management?
  • Will voters be asked to vote to repeal, or modify, Article XXVI of the Charter, aka Measure A, which bans multi-family housing and limits residential density?

One might have thought – we did – that these were the questions Council was supposed to answer last week. In fact, it answered none of them. Instead, it voted to hold two more meetings before making any decision. As far as we understand it, Council first will “have a conversation” about whether “we want to move forward” with any of the proposed revisions; then, at a later meeting, it will decide which of the green-lighted items actually will go on the November ballot.

Given this outcome, it may not seem like Council accomplished very much during the three meetings last week. But the real wonder is that the meetings took place at all. And enough was said that the Merry-Go-Round is willing to venture a few predictions about what voters will see on their ballots this November.

Declaring that she wanted to “restore public trust in our local government,” Mayor Marilyn Ezzy Ashcraft appointed the Charter revision subcommittee (consisting of Vice Mayor John Knox White and Councilman Tony Daysog) as her first official act after being sworn into office. More than a year later, the subcommittee was prepared to submit its initial set of recommendations – two ballot measures, one of which included a pay raise for future Council members – on March 17. That turned out to be the very day the Bay Area-wide shelter-in-place order was issued, and the Council meeting that night focused on “emergency measures.” The Charter revision item was kicked over and later re-agendized for April 21.

As that date approached, Council members began getting requests to postpone any discussion of Charter revisions until the shelter-in-place order had been lifted. That was the position taken, for example, by the Alameda Citizens Task Force. Ordinarily, this was a group whom the Council “progressives” would ignore, but other organizations to whom they do pay homage – like the League of Women Voters, housing advocacy groups, and, most significantly, the Alameda firefighters’ union – also wanted a postponement until the public again was able to attend Council meetings in person.

At the April 21 meeting, the two Council members who owe their seats to the union – Jim Oddie and Malia Vella – obligingly made and seconded a motion to put over the Charter revision item until two weeks after the shelter-in-place order had been rescinded. But Mayor Ashcraft was having none of it. The ability to show up in person at a Council meeting was “a bit of a luxury for many,” she argued. Moreover, mass attendance would be problematic even after the shelter-in-place order had been lifted. The coronavirus crisis was “not going away,” she said, “so I am very dedicated to making sure that we get as full and robust public participation as possible and not just the folks who can take the time off in an evening to pack the Council chambers because again we’re not going to be doing that for a while.”

As is his wont, Mr. Knox White stepped to the forefront: he offered a substitute motion to “shrink down” the recommendations presented by the subcommittee and bring back a revised proposal on May 5. Unfortunately, the video of the meeting cuts off at this point, but Council apparently agreed.

During the April 21 meeting, Ms. Ashcraft informed her colleagues that she wanted to hold two special meetings devoted exclusively to the two hot-button issues considered by the subcommittee: changes to section 7-3 (Councilmember interference) and Article XXVI (Measure A). She would “be prepared” on May 5 to schedule the special meetings, she said, and she promised that both would be “well-publicized ahead of time.”

Despite these statements, on April 29 and 30, Ms. Ashcraft unilaterally scheduled the two special meetings for May 6 (section 7-3) and May 7 (Article XXVI), respectively, giving only the minimum seven-day notice required by the Municipal Code. No email blast announcing the special meetings went out from City Hall.

This prompted a new round of complaints. In addition to reiterating its objection to considering any Charter revisions while the shelter-in-place order remained in effect, the ACT steering committee wrote that “the scheduling of these special meetings with such short notice greatly inhibits public participation, because 1) many members of the public will not be aware of these meetings and 2) community organizations such as ACT are being forced to respond to all of these issues in a very short time frame.”

The Alameda Architectural Preservation Society made a similar objection, and, probably for the first (and last) time ever, the position taken by the “reactionaries” was echoed by the “Alameda Justice Alliance,” a conglomeration consisting of the Alameda Renters Coalition, the Alameda firefighters’ union, “Alameda Progressives,” Renewed Hope Housing Advocates, and the Alameda Labor Council.

At the May 5 meeting, Mr. Oddie and Ms. Vella again sided with the objectors in urging deferral of further discussions about Charter revisions. Ms. Ashcraft again refused to budge. Mr. Daysog tried to straddle the fence. And Mr. Knox White again offered his own suggestion for a way out, this time coming up with the scheme to hold two more meetings before making any decision about which proposed Charter revisions to put on the November ballot. This became the dodge employed the next two nights at the special meetings on section 7-3 and Article XXVI.

Now, we suppose it’s possible to view these events as involving only the procedural issue of how to conduct Council meetings during the coronavirus crisis. But somehow we think there may have been a little bit of politics going on here, too.

At first, we wondered why Ms. Ashcraft seemed so hell-bent on keeping potential revisions to the Charter on the fast track, going so far as to schedule special meetings unilaterally with minimum notice. Surely, she must recognize the validity of the point made by Mr. Oddie and Ms. Vella that Alamedans were “pre-occupied” with more personal, and more pressing, matters than the City Charter. But after the Mayor repeatedly noted that this was a presidential election year, the thought occurred to us: Maybe Ms. Ashcraft (and Mr. Knox White) wanted to get a measure repealing Article XXVI on the same ballot on which Donald Trump’s name would appear. If “progressive” Alamedans turned out in droves to vote to remove a president whom they regard as a racist, maybe they could be persuaded at the same time to vote to remove a Charter provision that some of their ilk have described as rooted in racism.

Likewise, at first we wondered why Ms. Vella, a new mother who strongly supported another proposed Charter revision sanctioning remote participation by Council members, seemed so convinced that in-person attendance by the public at Council meetings was crucial. Surely, she recognized the validity of the point made by Ms. Ashcraft that taking public comments via Zoom, text message, or email might in fact make it easier for Alamedans with children – or disabilities – to participate in the process. But when Ms. Vella started talking about “essential workers” who were unable to “weigh in” and “respond in a way that they normally would be able to,” the thought occurred to us: Maybe Ms. Vella (and Mr. Oddie) were determined to preserve the opportunity for their allies to pack Council chambers with uniformed firefighters and placard-wielding renters whenever an issue implicating their interests was on the agenda. Ms. Vella’s favorite NBA team isn’t the only organization that believes in Strength In Numbers.

Of course, we have to believe our local politicians aren’t so crass as to allow such thoughts to enter their minds and affect their votes. As Ms. Vella said about the meeting she and Mr. Oddie had with former City Manager Jill Keimach about the selection of a fire chief, all they want to do is to ensure a fair process.

And now for the predictions.

Let’s start with the easiest: the proposal to revise the Charter to allow Council members, beginning in 2023, to raise their pay to a maximum of 30 percent of the area median salary. (Using current data, that would amount to about $21,600 per year.)

For this proposal we have one word: Forgedaboutit.

It’s not that a case can’t be made for a pay raise. At the May 5 meeting, Mr. Daysog displayed a chart showing that Alameda Councilmembers’ pay – $100 for two meetings per month – lags woefully behind that of their confreres in other cities in Alameda County and is well below the countywide average of $1,200 per month. It also can be argued that, if the position came with a higher stipend, more ordinary citizens would run for a Council seat. We’re not sure we agree, but if a pay raise would open the doors to candidates who haven’t been specially selected for the role, we’re all for it. Jeff Delbono may think he has the right to pick the fire chief, but he shouldn’t be allowed to pick the Council members, too.

The problem, of course, is that the country is still likely to be in a recession this November (unless you believe Donald “I went to Wharton” Trump), and, no less in Alameda than elsewhere, citizens who are earning lower wages – or not earning any wages at all – aren’t going to jump at the chance to give elected officials the right to raise their own pay. Sure, you can tell voters that the proposed Charter revision merely permits and does not mandate a pay raise and that it caps the amount. And you can assure them that none of the current Council members will benefit from the change. It won’t make any difference.

Put this one in the “hold for later” file.

We’re almost as confident about our second prediction, although the forecast is the opposite: Council will vote to put on the ballot a measure re-writing section 7-3 of the Charter using the language proposed by Mr. Knox White on May 6 (with the tweaks he suggested at the meeting). We’d even venture to guess the Council vote will be unanimous.

There are a couple of reasons we’re so confident.

First, putting the revision on the ballot will allow Council to claim that it has followed the recommendation of the Alameda County Civil Grand Jury that delved into the fire-chief-selection scandal to “investigate possible charter or municipal code amendments to clarify and strengthen provisions relating to city governance.” True, the Grand Jury went on to recommend that the Charter “should delineate the specific types of conduct that constitute a violation of section 7‑3, as well as outline an enforcement process,” and Mr. Knox White’s proposed change does neither. But the Grand Jurors are no longer available to point out the failure to get the job done.

Second, putting the revision on the ballot will enhance the ability of the two Councilmembers found by the Grand Jury to have violated section 7-3 to minimize the severity of their offense. If the existing Charter provision is so vague it has to be re-written, how can Mr. Oddie and Ms. Vella be faulted for not complying with it? This is an argument Mr. Oddie and his publicist have making from the beginning – indeed, the latter went so far as to write that the provision would be found unconstitutionally vague – and we’d expect him to make it again to imply that all he got was a ticket for parking in a zone that wasn’t clearly marked at the time. Needless to say, both Mr. Oddie and Ms. Vella endorsed Mr. Knox White’s proposal on May 6.

But let’s be clear about one thing: the “new” version of section 7-3 really makes no material change to the version currently on the books.

Underlying the Charter provision is the principle – correctly attributed by Mr. Daysog to the true Progressives of the Hiram Johnson era – that Council members shouldn’t stick their noses into the City Manager’s business. Of course, no actual or wannabe lawyer would write a law so bluntly (or so plainly). So the original drafters chose to express the concept by prohibiting a Council member from “attempt[ing] . . . to influence” the City Manager in the appointment of subordinate officials. Mr. Knox White would replace that with language prohibiting a Council member from “in any manner, directly or indirectly, direct[ing], request[ing], or tak[ing] part” in the appointment process.

See the difference? We don’t. Nor can we imagine a set of facts under which a Council member’s conduct would run afoul of the existing language but not of the revised language (or vice versa). If we’re right, all Mr. Knox White’s draft does is to replace one bowl of word salad with another, without actually providing, as the Grand Jury recommended, any guidance about the “specific types of conduct” in which a Council member may not engage. Big whoop.

(If the subcommittee really had wanted to change the substance of section 7-3, it could have proposed a Charter provision that focused on the Council member’s reason for acting as she did rather than on the conduct itself. A Councilmember would be free to communicate with the City Manager about an appointment – as long as the elected official was not acting at the direction of, or to gain favor with, an individual or organization that promoted his candidacy. For example, if Frank Matarrese had called Jill Keimach and recommended Dom Weaver for fire chief, that would have been OK – he wasn’t doing it because Jeff Delbono asked, or told, him to do it.)

Moreover, the revised version of section 7-3 drafted by Mr. Knox White doesn’t address the other problem identified by the Grand Jury with the current version: its failure to articulate any procedure for redressing a violation. Mr. Daysog was well aware of this omission, and at the May 6 meeting, he proposed a six-part enforcement process. Under his proposal, a finding by the District Attorney and the Grand Jury that a Council member had engaged in misconduct would trigger a special election to remove the offending Council member. “McCarthyism!” exclaimed Mr. Oddie. (Yes, he even went so far as to cite Edward R. Murrow.) Ms. Vella was equally appalled, and neither the Mayor nor the Vice Mayor spoke up in support of Mr. Daysog’s plan.

So what we’re left with is the sentence in Mr. Knox White’s draft authorizing Council to “implement this section” – which presumably includes creating an enforcement mechanism – by ordinance, resolution, or rule. And if they don’t, the status quo remains the same.

Finally, we come to the Charter revision proposal about which we’re the least confident in making a prediction: Article XXVI (i.e., Measure A).

During the election campaign, and even thereafter, Mr. Knox White played coy about what he wanted to do about this Charter provision. But on May 7 he came out squarely in favor of repeal. It was, he maintained, “broadly recognized” (at least he didn’t say “everyone agrees”) that Measure A “reduces our ability to produce affordable housing, sustainable and climate-friendly housing, and has impacts on the development of lower-traffic development.” Repealing the provision altogether, he concluded, “would be the best way” to go.

Unlike Mr. Knox White, Ms. Ashcraft never came right out and said she favored repeal. Indeed, she tried to suggest that the only issue before Council was whether the voters should be given the “opportunity to weigh in one way or the other” about Measure A, as if the ballot measure would consist of a multiple-choice question. But all of her arguments pointed to repeal, including the claim (which we still do not understand) that getting rid of Measure A would spur a surge in the supply of multi-family housing, to the benefit not only of renters but also the homeless. We suspect that, had the Mayor thought there was a third vote for repeal, she would have joined Mr. Knox White in making that recommendation.

Now is where it gets hard.

Ms. Vella did not participate in the May 7 meeting, so we have no basis for discerning her view. But Mr. Daysog and Mr. Oddie were there – and the signals they gave were mixed.

Mr. Daysog began as one might have expected, praising Measure A as a “blunt instrument” that had “kept our quality of life.” But then, mid-meeting, he pivoted. He was “intrigued,” Mr. Daysog said, by the comments by AAPS’s Christopher Buckley about revising Article XXVI to “map out” areas in which Measure A’s restrictions would be “relaxed.” In fact, this was not a new idea: at the January 13 Planning Board “town hall,” several of the Planning Board members offered similar suggestions. But Mr. Daysog acted as if he was hearing the concept for the first time, and he hinted he might even support changing the Charter along those lines.

Mr. Oddie also surprised us. For one thing, he acknowledged the legitimacy of the position taken by what he called the “preservationists.” (“You drive down some streets,” he noted, “and you see what happens when there [were] unfettered bulldozers. We have to be respectful of those who don’t want to see that happen again.”) For another, sounding nothing like an ideologue, he argued that, in proposing any Charter revision, Council needed to strike a “balance” between the “need for housing” and the interest in “preservation”; only by doing so could it earn (or regain) the public’s trust. To top it off, Mr. Oddie told his colleagues that he had come up with an idea of his own (which he did not further describe) to accomplish this result.

We don’t know how well Mr. Oddie’s remarks went over with his supporters among the tenant advocates, and he has been known to flip his position on a dime when they threaten him with retribution for deviating from the party line. Nevertheless, at this point, we wouldn’t count him as a vote for outright repeal.

The meeting ended in a muddle. This time, the way out suggested by Mr. Knox White was to have yet another subcommittee (consisting of Ms. Ashcraft and Mr. Oddie) draft a new proposal that would incorporate the AAPS suggestion, Mr. Oddie’s solution, or both, or neither. And then Council would hold two more meetings before deciding what, if anything, to put on the November ballot.

If we were giving odds, we’d rate the chances of Council agreeing to put a significant change to Measure A before the voters in November as slim. As with section 7-3, the only “revision” that may make it onto the ballot would be one that, as a practical matter, makes no difference. Yet if that’s the case, why bother?

Sources:

Council pay: 2020-04-21 staff report re 2 measures; 2020-04-21 Correspondence; 2020-05-05 staff report re 2 measures; 2020-05-05 Correspondence – Updated 55

Section 7-3: 2020-05-06 staff report re CM interference; 2020-05-06 Correspondence – Updated 56

Article XXVI (Measure A): 2020-05-07 staff report re Measure A; 2020-05-07 Correspondence – Updated 56

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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2 Responses to Charter follies

  1. dave says:

    There are some good reasons for increasing council pay – in theory – but in reality, council members voting for a 6 fold or larger increase for themselves passes no smell test whatsoever. The *ONLY* circumstance in which that is acceptable is if members of the council who vote for it are permanently and specifically barred from receiving the raise. Even if they are re-elected in a subsequent cycle, they would still serve at the old pay rate. We cannot allow people to vote themselves such raises.

  2. Irene says:

    When I attended last year’s charter amendment workshop the League of Women voters hosted, 95 percent of the participants at my table did not know that the mayor and council are part-time positions, with Alameda having a city manager form of government.

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