Analysis: SAFE Principals Demand BOS Hold Special Election for Recall at Potential Cost of $20 MM Instead of in November, But Facts Are Not on SAFE’s Side

As ALCO supervisors certified March’s election results at a regular meeting of the Board of Supervisors Tuesday, SAFE principals and a handful of supporters urged the body to call a recall election date immediately, claiming the BOS are required to do so under the current charter rules. The recall certification by the BOS, the predicate for the BOS to take any action on setting an election date, appeared nowhere on the agenda after the Registrar of Voters [ROV] Tim Dupuis announced the results of the signature count on the afternoon of Monday, April 15, only a matter of hours earlier.

The BOS did, however, take the first step in a convoluted timeline created by the century-old charter rules and imminent charter changes from Measure B. The BOS voted to certify the election results received from the ROV, which includes Measure B, and that sends the charter changes to the Secretary of State [SOS] for final ratification.

Timeline for Recall Subject to Interpretation

The timeline for the recall is now composed of several actions in close succession and many are subject to interpretation. The SOS certification of Measure B will change ALCO’s charter so the state rules will be used for recalls going forward. In all likelihood, it will be in effect by the date of the next BOS regular meeting on April 30.

State law requires that the BOS certification of signatures for a recall occurs during a regular meeting, where the results are presented to the body by the ROV. Regular meetings are pre-set and bi-weekly—the next one after April 16 is April 30. Though the agenda is not yet available, it's likely that the sufficiency declaration for the Recall signatures will be on it and accepted by vote of the BOS at the April 30 meeting. Under state law, which will more than likely govern the process by then, the BOS must set an election within 14 days after that vote to certify the signatures—14 days is also the normal gap between regular BOS meetings.

In social media statements and in public statements, SAFE argues that the BOS was legally required to both certify the recall signatures on April 16th and call a recall election, which does not seem to have been legally possible given the noticing requirements of the Brown Act.

But the facts do not appear to be on SAFE's side. If the state rules are in effect by April 30, the BOS has no requirement to do both at the same meeting—and it's not even clear the charter would require the BOS to do so if they are not. The language in the charter section 62 that is the platform for SAFE’s complaint is imprecise and vague about the timeline for setting the date of the election.

“If the petition shall be found to be sufficient, the County Clerk shall submit the same to the Board of Supervisors without delay, whereupon the Board shall forthwith cause a special election to be held not less than thirty-five nor more than forty days after the date of the order calling such an election, to determine whether such officer shall be recalled; provided, that if an election is to occur in the same territory within not less than thirty-five days or more than sixty days from the date of the order calling such recall election, the Board may in its discretion, postpone the holding of such recall election to such election”

State Law Would Allow Recall to Occur in November General Election

State law sets a timeline for when to have the recall election that is between 88 and 125 days of the vote to do so—but notably if a maximum period of 180 days would get the recall into a general election, the state laws allow that more ample timeline instead. Following the BOS process through normally scheduled meetings and established procedures, the election would lie in the 180 day window if all the timelines are followed under the rubric of noticing and agendizing meetings.

If the BOS follows the state processes—certifying the recall signatures on April 30, then setting the election at a meeting 14 days after that date, the usual gap between regular meetings, the general election would fall in that 180 day window. But even so, there is no penalty for the BOS failing to set the election during that 14 day period under state law. If BOS fails to set the date during that window, the election date is then set by the ROV within five days, instead. Either timeline taken to their logical conclusions would add the recall to the November general election—using best electoral practices and saving up to $20 MM for the County of Alameda, the opposite of what SAFE demands.

SAFE Plays Rulebooks Against One Another

SAFE has continued a practice of hopping between charter and state rule demands to the BOS whenever either has proved more beneficial. Last year, when the BOS deliberated on the legislation that would become Measure B, SAFE principals Carl Chan and Brenda Grisham protested outside of the ALCO Adminstration building and decried the proposed changes during public comment.

SAFE's principals believed the changes could potentially alter the number of signatures needed to the higher state threshold as well as altering a potential election timeline. Grisham especially demanded at the meetings that every timeline associated with the charter be followed to the letter, especially the signature count and election schedule. But the SAFE and its principals soon ceased their advocacy. Neither they nor SAFE campaigned against Measure B before the March election.

After the election, which coincided with the submission of signatures, SAFE then seemed to welcome Dupuis’ decision to add 30 days to the Charter specified 10 day count timeline after Dupuis was unable to determine the sufficiency of the count. The charter allows only ten days and does not specify any extensions and its still unclear what legal reasoning Dupuis used to arrive at the hybrid structure.

Again, after the count was deemed sufficient by the ROV on Monday, SAFE seemed to approve of applying the state rules to the recall, making a statement urging the BOS to follow the state’s 88 to 125 day timeline. But the announcement did not mention the 180 timeline allowed to get the recall into the November election if the BOS follows its standard process.

In another about-face at the BOS meeting Tuesday, Grisham and Recall proponents demanded that the BOS immediately certify the count and follow the current charter rules for an election timeline which would result in a recall election even earlier than SAFE's announcement of the previous day. Grisham fleshed out the complaint at the BOS meeting Tuesday, insisting the BOS was required to take immediate action to certify the recall signatures, which would then require the declaration of an election within 40 days, Grisham repeated her claim that she is unphased by the costs associated with a special election.

“20 million dollars…should not matter,” Grisham told the supervisors.

Core Recall supporter and Larouche candidate Mindy Pechenuk echoed Grisham’s theory of the recall timeline, and told the BOS that she expected the body to immediately certify the signatures and then carry out the charter timeline for an election within 40 days. Pechenuk is also currently suing the County for a writ of mandate, claiming she was not allowed to observe the March 5th ballot count according to law. The suit, which was filed in March shortly after the election sought to stay the certification of the vote, which occurred Tuesday. Whatever the merits of the suit, however, Pechenuk apparently failed to serve the County properly. The service was carried out at Tuesday’s meeting.

Arguments Don't Stand up to Scrutiny

SAFE and its supporters’ criticisms do not seem grounded in any laws or logic. The BOS could not have agendized the recall signatures on the 16th because the BOS is required to give 72 hours notice to take any binding action. And the BOS seem to have broken no law by following their own legally required processes, either under the vague Charter language nor the state rules. SAFE’s current statements now all call for the election to be scheduled at the April 30 meeting, though it's not clear if under the Charter or state rules. The County would seem to not be required to do so under either rules.

In the ensuing days, SAFE has called for a protest at the Administration building during a Special Meeting on April 23. The special meeting has no legislation or action items and is noticed as a working session—at the same meeting, the BOS will have a closed session to discuss land use and pending litigation, including Pechenuk’s writ of mandate suit.

Recall Post-Script:

Recall Signatures Reached a Bare Sufficiency

Data seen by the Oakland Observer shows that around 50,000 signatures were thrown out by the Registrar, most of those because they lacked Occupation information or because the signer was not a registered voter. The data is from one of the last versions of the count, with a disparity of about a dozen signatures from the total announced by the Registrar Monday, approximate numbers follow:

—23.9K signatures were invalidated on the Occupation requirement
—12.9K were not registered voters
—2.9K of the signatures were by inactive voters
—1.4K were entries that were submitted more than once for the same individual.

The occupation line is not required by state recall rules, but had the recall been carried out under the state rules it’s statistically likely that some proportion of the nearly 24K votes thrown out on those grounds would have also been eliminated on other criteria.