What’s happened to the OGC?

To the dismay of some, the campaign to “defund the police” hasn’t made much headway – so far – in Alameda.

But another effort is well on its way to success:  we call it the campaign to “de-fang the Open Government Commission.”

Established in 2011 as a body composed of ordinary citizens who were charged with enforcing the newly enacted Sunshine Ordinance, the Commission already has lost its power to redress violations of the Ordinance.  Soon, it may even lose its power to determine whether such violations occurred in the first place.

It’s as if the Board of Education woke up one day and found itself with no more authority than an elementary-school PTA.

Strikingly, this result cannot be ascribed to any malicious designs of politicians or “activists.”  It is the Alameda City Attorney’s Office, under the leadership of Yibin Shen, that has been responsible for selecting the targets and pulling the trigger.

And its conduct has been truly bizarre.  The actions include:  an abrupt 180-degree reversal of a legal opinion that tracked the plain words of the Sunshine Ordinance; a Mitch McConnell-like maneuver to kill a unanimous Commission decision by holding it until a new Council assumed office; and a backdoor attempt to take authority away from the OGC without having vetted the change with the affected party.

We previously covered the first battle in this campaign.  Back in October 2018, a woman named Serena Chen (who, ironically enough, is now an OGC Commissioner) brought a complaint before the OGC alleging that the City had failed to comply with the notice provisions of the Brown Act when it passed two ordinances authorizing the sale of recreational marijuana.  After conducting a hearing, the Commission sustained the complaint, and the Chair turned to the OGC’s legal adviser, Assistant City Attorney Michael Roush, for guidance about the remedy.

The Sunshine Ordinance itself was pretty clear on the point.  If the Commission found that a governmental body (like Council) had violated the “public access” provisions of the Act (which included the notice requirements cited by Ms. Chen), it was empowered to “order the action of [the] body null and void” and/or to “issue an order to cure or correct” the violation.

Mr. Roush so informed the Commission.  And the Commissioners so ordered, unanimously passing a motion declaring the ordinances null and void and directing Council “to re-post notice of the meeting” to cure the defect in the earlier notice.

But then, rather than draft a written order embodying the OGC’s decision, Mr. Roush posted on the City website a memo contending that, contrary to his prior advice, 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.

It took a unanimous OGC fewer than 10 minutes to reject this proposal and deny the request for re‑consideration.  The issue then went before Council, where the City Attorney continued to insist that the OGC did not have the right to issue a nullify-and-correct order.  Nevertheless, Council ultimately did as the Commission had directed and
re-noticed the cannabis-ordinance item.  The ordinances finally passed in April 2019.

But the City Attorney had just begun to fight.

In December 2019, under the guise of proposing “clean-up” updates to the Sunshine Ordinance, the City Attorney proposed an amendment eliminating the Commission’s power to issue a nullify-and-correct order upon finding a violation of the Ordinance.  Instead, all the Commission could do was to “recommend to the originating body steps necessary to cure or correct” the violation.  If Council decided to flip off the OGC’s recommendation, there was nothing the Commission – or anyone else – could do about it.

The stated rationale for this change was that issuing a nullify-and-correct order in accordance with the authority conferred by the Sunshine Ordinance constituted the exercise of a “legislative power.”  But only the legislative body itself – i.e., Council – could exercise a “legislative power.”  Therefore, the “delegation” to the OGC of the right to issue a nullify-and-correct order was unlawful.  Or so the argument went.

This claim never made much sense.  The OGC’s primary function was to hear and decide citizen complaints about alleged violations of the Sunshine Ordinance and, if it sustained a complaint, to order a remedy.  This is a classic judicial, not legislative, function.  In ruling on the merits of a citizen complaint, the OGC was not making laws; it was determining whether the body that made the laws had complied with the applicable procedures.  That’s the kind of decision a judge makes.  Likewise, by issuing a nullify-and-correct order, the OGC was not usurping any legislative power; it was directing the elected officials to follow the proper procedures the next time around.  That’s the kind of decision a judge makes, too.

When the City Attorney sought the OGC’s imprimatur for removing the nullify-and-correct remedy from the Ordinance, the Commission voted unanimously to reject the proposed change.

The City Attorney brought the proposal before Council anyway.  Before the hearing, the current and former OGC chairs – civil-rights lawyer Bryan Schwartz and retired judge Paul Foreman, respectively – submitted written comments taking issue with the City Attorney’s legal opinion.  Mr. Foreman accompanied his submission with a detailed analysis of the case law written by another lawyer, Cross Creason, a former law-review editor who was now a litigation partner in a San Francisco-based firm.  Similarly, the League of Women Voters registered its opposition from a policy perspective.

No matter.  Council voted, 3-to-2, with Council members John Knox White and Malia Vella dissenting, to water down the remedies available to the OGC.  The City Attorney’s office “takes great pride in doing good legal work,” Mayor Marilyn Ezzy Ashcraft declared.  “I am confident in the outcome.”  Accordingly, “I couldn’t support anything that is keeping the null-and-void option in because we’ve heard several times over that it’s not a valid remedy. . . .”

Councilman Jim Oddie managed to keep the door open just a little bit.  He convinced his colleagues to add a “direction” to staff to “work with the OGC to find an effective replacement to the null-and-void remedy. . . .”  Any such replacement remedy, Councilman Tony Daysog added, must have “some teeth.”

The lines thus were drawn for the next skirmish.

Mr. Foreman was the first to take up the challenge.  Working with Councilwoman Vella, he prepared a proposal for amending the Ordinance that, while adhering to the restrictions recently imposed by Council, sought to make any “recommendation” issued by the OGC more than empty rhetoric.  Council would be bound to “accept” the OGC’s recommendation to cure or correct a violation of the Ordinance, he proposed, unless at least four Council members voted to reject or modify it.

Mr. Foreman sent an email to the Commission setting forth his proposal in March 2020.  The City Attorney’s office waited three months to respond.  When it did, it opposed the idea of requiring four votes to overrule an OGC recommendation – without really explaining why.  In addition, it touted an alternative proposal “offered by Council member John Knox White.”

The latter description was, shall we say, infelicitous.  During the February Council meeting, Mr. Knox White had declared that, although he accepted the City Attorney’s advice that the existing nullify-and-correct remedy was “not a legal finding,” he would not vote to strike it from the ordinance unless his colleagues adopted a remedy to replace it.  Mr. Knox White then proceeded to lay out the content of an acceptable replacement provision.

Mr. Knox White didn’t suggest any specific language, nor did he call for a vote on any particular replacement.  But City Attorney Shen was taking notes, and, toward the end of the meeting, he put up on the overhead language that, he said, reflected the comments by Messrs. Knox White and Daysog.  Forever after, the City Attorney’s office has referred to this language as the “John Knox White Proposal.”  (Maybe Mr. Shen thought this gave it more cachet, at least among “progressives.”)

As presented to the OGC, the most salient feature of the John Knox White Proposal was that it did not require Council to accept the OGC’s recommendation absent four votes to the contrary.  Instead, it directed the governing body merely to “review the Commission’s recommendation and render a final decision by agreeing and curing, or disagreeing, with the Commission’s recommendation as soon as practicable.”  In the meantime, it provided, the City “shall take all necessary actions to maintain the status quo. . . .”

At its June 24 meeting, the OGC didn’t spend much time on the John Knox White Proposal.  But it did go through the Foreman proposal item-by-item, and it ended up voting unanimously to approve the provision requiring that, unless four members disagreed, Council must accept an OGC recommendation (at least where the complaint was based on a violation of the public-access provisions of the Sunshine Ordinance).

And there, one might have thought, the matter would have ended.  But it did not.  Instead, the City Attorney was back before the OGC in November.

According to the staff report, the City Attorney’s office was bringing up the issue again because it now had had time to analyze the Foreman proposal.  (What it was doing between March 1, when Mr. Foreman emailed the proposal to the OGC Commissioners, and November 16, when the OGC met, wasn’t explained.)  Its conclusion was that requiring four Council votes to overturn an OGC recommendation actually violated the City Charter!

How come?  The City Attorney made two claims.  First, he argued, the requirement to accept an OGC recommendation absent four votes to the contrary would enable the Commission to “override the City Council’s legislative process,” thereby “displac[ing] the powers of the City Council as provided in the Charter, and “plac[ing] supervisory authority in the Commission.”  Moreover, the City Attorney contended, the four-vote requirement itself violated the section of the Charter stating that, “except as otherwise provided,” three affirmative votes “shall be necessary for any act of or by the Council.”

But wait a minute:  The first claim was just another version of the nonsensical “legislative power” argument the City Attorney had trotted out to kill the nullify-and-correct remedy.  In fact, by requiring Council to accept its recommendation absent four contrary votes, the OGC was not purporting to exercise “supervisory authority” over Council; it was trying to lessen the chances that its decisions would be disregarded.  If four Council members chose to ignore the OGC anyway, so be it.  Likewise, there was nothing strange, much less illegal, about requiring four votes to override an OGC recommendation.  The Charter provision making three affirmative votes the norm expressly recognized that there could be exceptions – and, in fact, there were at least five other sections in the Alameda Municipal Code that imposed a supermajority requirement.

In the staff report, the City Attorney urged the OGC to reject the Foreman proposal – in essence, reversing itself – and approve the John Knox White Proposal instead.  And this time, when the OGC met, the in-house lawyers brought along a Big Gun – an attorney from the politically well-connected Olson, Remcho law firm – to make their case.

But it didn’t work.  Mr. Schwartz began the OGC’s November 16 meeting by cross-examining the Olson Remcho lawyer on the law.  (Mr. Schwartz must have enjoyed that opportunity; we would have.)  He then moved that the OGC reject the John Knox White Proposal and appoint a two-person subcommittee to draft, and present to the full Commission by December 15, an amendment that was “consistent with” its prior decision approving the Foreman proposal.  (This would take the City Attorney’s office out of the loop.)

The motion passed unanimously.

The subcommittee, which consisted of Mr. Schwartz and outgoing Commissioner Catherine Pauling (who lost her seat when Mr. Oddie, the Council member who had appointed her, lost his), fulfilled its mission:  By December 15, it had drafted and circulated an amendment to the Sunshine Ordinance providing, among other things, that, “Upon receipt of a cure and correct recommendation from the Commission, City Council shall accept the recommendation unless at least 4 Council Members approve rejection or modification of the Commission recommendation.”

Mr. Schwartz laid out the rationale for this provision in an accompanying memorandum.  Without a “cure-and-correct clause that requires Council’s action – e.g., with merely a referral of a recommendation back to Council,” he wrote, the Sunshine Ordinance will lack “teeth.”  By contrast, inserting such a clause would “prevent or at least dis-incentivize failures to provide public access or public information.”  He then went on to rebut each of the points previously made by the City Attorney and seconded by the City Attorney’s hired gun.  And he quoted the five specific provisions in the Municipal Code that required a “super-majority” vote.

The December 14 OGC meeting didn’t last long.  After a brief discussion, the Commissioners voted unanimously to approve the amendment drafted by the subcommittee.

Once again, one might have thought, this would have ended the matter.  Indeed, the City Attorney’s office expressly told the OGC in its staff report that, if the Commission “agree[d] with” the subcommittee’s proposal, “it would be forwarded to the City Council as a Commission recommendation” as early as February 2021.

But, once again, it was not to be.  Instead of bringing the OGC’s recommendation to Council, the City Attorney went back to the OGC.  But it wasn’t the same Commission as the one that twice had approved requiring four votes to override an OGC recommendation.  Mr. Schwartz was no longer a member of the body, Mayor Ashcraft having appointed someone else to replace him.  (Her reasons remain unclear to us.)  Moreover, two new Council members had been elected (or re-elected) in November, and they, too, filled slots on the OGC.

The City Attorney’s office sought to justify reneging on its promise to take the unanimously approved subcommittee proposal to Council by claiming it wanted “to be inclusive of the new Commission members and to seek their valued input” first.  And if the three new Commissioners responded more favorably than their predecessors had to the position the City Attorney had been urging since June 2020?  Well, so much the better.

The move succeeded – although it took two meetings, held three months apart, to achieve the desired outcome.

The City Attorney’s first task was to convince the Commission to reverse the unanimous approval of the subcommittee proposal that had occurred just a couple of months earlier.  In its staff memoranda, the City Attorney’s office hammered home its contention that requiring four votes to overturn an OGC recommendation somehow violated the Charter.  This time, there was no one around to push back:  Mr. Schwartz was no longer on the Commission, and Mr. Foreman had thrown in the towel.  (“I am convinced,” he wrote to the OGC, “that you should not waste any more time pursuing a goal that will be blocked at every turn by the City Attorney.”)

By the end of the February OGC meeting, at least one of the new Commissioners – the one appointed by Mayor Ashcraft to replace Mr. Schwartz – had gotten on board.  At the May OGC meeting, the rest of the Commissioners joined her.  Indeed, even one of the holdover Commissioners who had voted for both the Foreman proposal and the subcommittee proposal now disavowed his prior support for them.

Which left the John Knox White Proposal.  At the May OGC meeting, the Commissioners treated it as the operative text.  After making a few editorial changes, all five of them – including both of the holdovers who had voted against it in November – voted to approve it as modified.

Then came the switcheroo.

The OGC may have expected that the City Attorney would present its approved replacement remedy to Council at its next meeting.  In fact, the City Attorney did make a presentation to Council on June 1 – but he focused on an entirely different goal:  changing how citizen complaints about violations of the Sunshine Ordinance were heard and decided.

Not only had the OGC not endorsed any proposed change – it hadn’t even discussed the subject.  Nevertheless, having sat through three hearings and prepared for a fourth since January 2021, the City Attorney unilaterally decided to recommend that the Commission should be “relieved” of its role in conducting hearings.  Instead, that task should be transferred to “City Hearing Officers.”  The OGC’s vestigial role would be to “review” the hearing officers’ decisions (but apparently not to overturn them).

To make the case for this recommendation, the City Attorney had to acknowledge that the OGC was playing an “adjudicatory role” when it heard and decided complaints.  This he did, but those with long memories – or memories going back more than a year – may have noticed the inconsistency between this acknowledgement and the City Attorney’s prior insistence that the OGC was exercising a “legislative power” when it sustained a complaint and issued a remedy.  Which function did the City Attorney actually believe the OGC was discharging in such a case – “legislative” or “adjudicative”?  The characterization appeared to depend on the result he wanted to reach.

Moreover, the City Attorney had to step carefully when he argued why the OGC shouldn’t be allowed to continue in the “adjudicatory role.”  He couldn’t say, flat out, that the current OGC had botched the three hearings it had conducted so far this year.  So, instead, he focused on the Commissioners’ purported discomfort with “undertaking legal analysis, or parsing case law,” as he said they had been required to do on those occasions.  (Hearing officers, with their “legal training and experience,” wouldn’t be afflicted by any similar anxiety.)  It was almost as if Council would be doing the Commissioners a favor by sparing them this burden.

But buried in the staff report may have been the real impetus for the proposed change:  The Commission “has repeatedly shown hesitation to follow the advice of the attorneys staffing the Commission, in certain instances suggesting that the CAO may be biased for the City,” the report stated.  Indeed, “there have been times where members have refused or shown extreme reluctance to accept the CAO’s advice regarding recusal even when there was a strong legal basis for such advice.”  (One might have hoped that the City Attorney had a “strong legal basis” for his advice in every case.)  Hearing officers, presumably, would be more . . . respectful.

Not even Mr. Shen should have been surprised when Council didn’t immediately approve his recommendation to pass an ordinance shifting the responsibility for conducting complaint hearings from the OGC to hearing officers.  But we doubt that he was pleased by Council’s direction to discuss his proposal with the Commission before presenting it again to Council.  If the staff report is to be believed, the Commissioners and the in-house lawyers seemingly have reached the point of irreconcilable differences.  In that case, divorce may not be an option – but Council’s attempt to play marriage counselor will be doomed to fail.

So that’s the story thus far of what’s happened to the Open Government Commission’s ability to carry out its mission of ensuring – to use the familiar buzzwords – “transparency” and “accountability” in City government.  Its enforcement powers have been crippled.  Its adjudicative duties may be wiped out altogether.  Once that happens, what will be left?  Will the OGC continue to exist as anything other than a glorified debating society?

This result surely isn’t what those who wrote the Sunshine Ordinance and created the Open Government Commission had in mind.  “When it was first formed, the [OGC] was intended to follow the model of other cities’ public ethics commissions,” former Councilwoman Lena Tam, one of the prime movers behind the legislation, told us when we sought her out for comment.  “Our OGC is essentially the citizen watchdog to ‘shine’ a light on the activities of city government activities in the hopes of preventing malfeasance, improprieties or irregularities.”

But Ms. Tam no longer holds public office.  Having watched videos of the OGC in action beginning this February, we cannot be confident that the current Commissioners will resist the push to preside over the decimation of their own authority.  And having watched videos of the relevant Council meetings, we cannot be sure that those Council members who we might have assumed would have been the Commission’s most stalwart defenders will stand in the way.  Are there any ordinary citizens who care enough to insist that their elected officials end rather than exacerbate the carnage?  If so, it will be up to them to save the OGC – even from itself.

Sources:

Sunshine Ordinance amendment (February 2020): 2020-02-04 staff report re amendments; 2020-02-04 Ex. 1 to staff report – redline

Foreman proposal: 2020-06-24 Ex. 2 to staff report to OGC – Email and Proposal from Paul Foreman

John Knox White Proposal: 2020-06-11 Supplemental Memo

Subcommittee proposal: 2020-12-14 Ex. 1 to staff report to OGC – Subcommittee Proposal

Staff reports: 2020-06-24 staff report to OGC; 2020-11-16 staff report to OGC re null-and-void remedy; 2020-12-14 staff report to OGC re null & void remedy; 2021-02-01 staff report re null-and-void remedy; 2021-05-03 staff report to OGC re null & void remedy; 2021-06-01 staff report re OGC hearing officer

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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3 Responses to What’s happened to the OGC?

  1. William says:

    America is a train wreck, as is California and Alameda. Councils and government bodies that care only about votes, money and greed. Bless the citizens of all three bodies. Well researched and written article Robert.

  2. Who Watches The Watchdogs? says:

    This is one of your better posts, very illuminating and I could not decide which way I would support. On one hand, the Brown Act clearly says non-elected individuals cannot hold legislative powers, only make recommendations. On the other hand, having a watchdog group monitor council actions sounds great in theory, as long as members of that group are not being political about it – and I’m just not convinced that every current member of OGC fits the bill, especially the individual who tried to eliminate ad-hoc committees because her friends did not like the recommendations made by the Jackson Park and police reform committees (ad-hoc committees are permitted by the Brown Act). That’s the only hesitation I have about OGC having more teeth, unelected individuals might misuse it to impose their own agenda or try to act outside the scope of the committee.

  3. Paul Foreman says:

    Who Watches The Watchdogs, the OGC member you speak of was not trying to eliminate ad hoc committees. She was trying to require the city to have these committees comply with the Brown Act which requires ad hoc committees created by city council, boards or commissions to meet in public with prior publication of their agenda and with public comment received. Unfortunately, the Commission, presented with this issue in February and again In March, dropped the ball.

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