Oakland Observer Week Ending 6/11/2023: Ramachandran Misses Vote for Just Cause Amendment; Becker Boards Agreement Passed Without Council Scrutiny; ALCO BOS Creates Election Advisory Commission; Council Committee Roundups Coming this Week

Council Votes Unanimously for JCO "Substantial Injury" Amendments with Ramachandran and Gallo Absent; Reid Abstention

City Council voted Tuesday for a Just Cause ordinance amendment [JCO] that was a flashpoint for local landlord advocacy and lobbying group East Bay Rental Housing Association [EBRHA] just one month ago. During protest actions organized by the lobbying group against tenant protections in the City's eviction moratorium-ending legislation, removing the amendment was a central demand of the landlord group.

CMs Janani Ramachandran and Kevin Jenkins were largely perceived as the key votes on Council backing the removal of the amendment in April–with every vote crucial on the legislation, the CMs ultimately swayed Bas, Kalb and others to support changes demanded by EBRHA to pass the legislative package. The final package of moratorium ending legislation was a compromise with the EBRHA demands pushed forward by Jenkins, Ramachandran and [more vigorously] CM Noel Gallo. The compromise effectively cut the Bas/Kalb original timeline to end the moratorium by a month and a half, among other changes, including the removal of the JCO amendments.

Jenkins, for his part, in an interview with this publication at the time, said he would seek reintroducing the legislation at some point, and he moved to do so along with Bas beginning in May. Bas argued at the Rules committee where the legislation was introduced that the amendment should bypass committee because it had already been vetted at Committee and at Council when it had been part of the moratorium-ending legislation.

Handful of Landlords Critique, but EBRHA and In it Together Absent from Deliberation

No EBRHA principal or board member spoke on the legislation at the meeting; one person associated with In it Together was present, Tuan Ngo, who spoke against the amendment but didn’t identify himself as a member of the group. Ngo called the legislation a “bait and switch” though failed to explain what he meant. Like other landlords who spoke, he characterized the language of "substantial injury" as too vague to be applied fairly.

“It seems to me that this is a bait and switch and something else is going on under the surface. I see very vague language…what is ‘substantial’, we asked the RAP’s staff, they say go see a lawyer,” Ngo said.

Rent Adjustment Program [RAP] Manager Victor Ramirez responded to the criticism of the language, noting it was standard practice to leave it up to courts to define “substantial injury”, not the entity creating the law.

“Some of the legislation that is adopted by bodies like this don’t actually define terms…because of the kind of cases that are going to be considered by the courts. So it's often left to the courts to determine those terms when they are deciding specific cases,” Ramirez explained.

Praise for the Amendment in Anticipation of "Eviction Tsunami", Criticism of the Delay

Most of the public comments were from tenants and tenant advocates heralding the legislation as a welcome, if minimum, protection for tenants as Oakland heads into a forecast eviction “tsunami” when the moratorium protection ends.

But Oakland Tenant’s Union’s James Vann also indirectly chastised Jenkins and Ramachandran for their original retreat on the legislation.

“I’m speaking to the junior council people who prevented this amendment from being passed at that time [in April] to be careful about making alliances when you really don’t know the facts…and you’re locked into a position where you’re voting to hurt people.”

Vann nevertheless thanked Jenkins for reintroducing the legislation.

Carmen Jovel, the Housing Deputy Director at East Bay Community Law Center noted that in recent weeks, the County, which has already removed its eviction moratorium, saw 500 eviction suits go to court. RAP's Ramirez also noted that in 2018-19, the last year before the eviction moratorium was enacted, RAP saw 6,714 notices of eviction–notices which landlords must file with RAP according to City laws when they notify a tenant they intend to evict them.

Despite the absence of public pressure from EBRHA, the organization’s influence can nevertheless be felt in Ramachandran’s absence and an abstention from CM Treva Reid, who’s gone to bat for EBRHA on the Council floor on numerous occasions. Gallo, who championed EBRHA’s goals during the moratorium-ending deliberations and likely would not have voted positively on the item, had left the chambers by the time the non-consent portion of the agenda was being heard, a now regular habit of the CM in recent months.

ALCO BOS Passes Legislation Enabling County Election Commission

By unanimous vote Tuesday, the Alameda County Board of Supervisors [BOS] passed legislation that enables a long-discussed County advisory election commission. The idea was first floated by District 5 Supervisor Keith Carson and was included in a set of recommendations Carson and other supervisors proposed along with an attempt to secure a recount of the Oakland Mayor’s race and other ALCO races in January. But the concept was lost during months of discussion focused almost exclusively on the always highly-unlikely set of recounts which never materialized. The legislation resurfaced in May and was voted on this last Tuesday.

Body with Large Membership

The advisory commission legislation calls for a 13 member body, composed of:

• 5 seats representing the five supervisory districts
• 4 at large seats
• 4 seats representing membership organizations: one from the ALCO League of Women Voters, another from the ACLU, and two organizational seats to be determined representing a disability organization and a voting rights organization.

During the deliberation, D1 Supervisor David Haubert, suggested adding an appointed seat for a resident with technical expertise instead of one of the organizational appointments. Haubert argued that the organizations seemed to overlap with one another, but that with increasing voting technology, a commissioner with technical expertise was more vitally needed.

Both Carson and D2 Supervisor Elisa Marquez suggested that the BOS focus that concern on ensuring that one of the BOS appointments have technical expertise during the appointment process. Haubert’s suggestion was not added to the legislation.

An Advisory Commission with No Direct Control Over the ROV

The County’s Counsel Donna Ziegler clarified that the Commission would not be able to control or change processes of the Registrar of Voters [ROV]. The BOS would continue to have “ultimate supervision.”

“...[the Commission won’t] have the ability to abridge or perform the statutorily conveyed duties of a Registrar of Voters…election code delegates certain duties and obligations and responsibilities to the ROV, so those can’t be abrogated by the Board or performed by an oversight committee,” Ziegler told the Board.

Senior County Counsel Ray Lara confirmed that supervision of the ROV would continue to rest with the Board, with the Commission providing only an advisory role.

The Commission as passed by the BOS will have several primary duties, such as reviewing the ROV’s election plans and conducting a “post-election assessment”. The Commission will also promote and conduct some level of outreach and voter education while promoting “the integrity, efficiency and accuracy” of election policies, registration and processes. Carson, in his introduction of the legislation referred to these functions, or rather their current absence, as “kind of how we got here.”

“Especially with respect to the last election, the entire voter education and outreach became a central issue, especially with respect to the Oakland election,” Carson added.

A Unique Election Oversight Body

The Commission’s larger membership coupled with a strict advisory role differentiate it from its two closest relatives, the Santa Clara’s Citizens’ Advisory Commission on Elections and the San Francisco Election Commission. The former has only seven members, but performs a similar advisory role. The SF commission is also much smaller, but far more powerful, with the role of approving budgets and policy

The SF Commission's Vice President Chris Jerdonek told the Oakland Observer that ALCO’s advisory commission is a welcome step toward greater transparency and communication with the public.

“The Commission will put the public in an immensely better position to oversee and interact with the registrar’s office going forward. I think it will be night and day compared with how it was before,” Jerdonek said.

Becker Boards/OFI Contract Passed with No Discussion of New EWD Report

Despite an accompanying new report by the Economic and Workforce Development Department [EWD] that cast doubt on arguments against a competing proposal by Clear Channel, Council voted for the Becker/OFI billboard proposal as part of its Tuesday consent calendar. The vote on consent meant that there was little deliberation before the legislation was passed along with dozens of other items of legislation.

The EWD report had been requested by the Community and Economic Development [CED] Committee as an accompaniment to the Becker/OFI legislation in the Council agenda package. The EWD report was intended to serve as a definitive City staff response to a presentation by Becker Boards representative Nema Link at the CED meeting. Link, in his presentation, claimed that only a handful of the Clear Channel sites are viable, and thus could not produce the superior revenue that EWD had previously argued would flow to the City from the Clear Channel deal.

At that CED meeting, EWD initially contested many of the claims but also noted the agency hadn't had time to fully vet Becker's claims due to the late introduction of the Becker report. Council then asked for a more comprehensive report on the validity of the claims to accompany the item for Council presentation.

But even though the report was inserted in the folder sometime Thursday evening, no CM made a motion to pull the legislation out to Non-Consent for review of the new information. And in a brief back and forth of mostly laudatory comments on the deal and Becker's coalition building, the report was never mentioned. Council President Nikki Fortunato Bas thanked city staff for “diligent work”, but like her colleagues, didn’t mention the department's findings that cast doubt on Becker's claims.

The EWD noted in both reports that ultimately, despite a generous package of funding to non-profit organizations, Oakland would likely earn more revenue, along with a higher amount of funds to disburse to organizations with the Clear Channel proposal.

The only substantive commentary on the proposal was from CM Dan Kalb, who was forced to revise the legislation on the dais because amendments he introduced at the CED committee to the original deal were not included in the legislation before the council. The amendments increase the revenue amount from 4.5% to 5%, and decrease the increment period from 11 years, to 6. Without deliberation and focus on the data and specifics of the two deals, it’s difficult to know if Oakland in fact chose less revenue for both City and community groups by moving forward on the deal with Becker as EWD originally contended.

Though dozens of supporters of the deal linked to various organizations came for the meeting in their requisite green shirts, few spoke when it became clear there’d be little deliberation on the item–representatives from Native American Health Center, La Clinica de la Raza, West Oakland Health Center, and other organizations thanked the Council for passage of the legislation during public comment, instead.

City Council Committee Roundup

Finance Committee

Third Quarter Revenue and Expenditure Report

As usual, the City’s third quarter revenue and expenditure report is being released just before Council budget deliberations begin. The City releases a forecast of the year’s final accounting following the end of every fiscal quarter, with each quarter’s forecast arriving at an increasingly accurate assessment of the fiscal year's performance. This forecast will be the last before the fiscal year ends–a final evaluation of the GPF’s revenue and expenditures won’t be available until late in FY 2023-24

The Finance Department is now predicting a lower level of expenditure by the end of the fiscal year due to larger than expected vacancies in almost every City agency–some of this likely due to the hiring freeze Mayor Sheng Thao instituted in April. The actual vacancy number of 18% is higher than the 10% the City estimated for fiscal FY 2022-23–that lowers almost every department’s expenses in the third quarter forecast for savings tens of millions of dollars greater than previously predicted.

The latest forecast predicts the City will close the fiscal year with $59MM to carry over into the next. While that’s a larger carry over than what was previously estimated, which is good news for expected historic budget deficits, the report notes that the GPF budget continues to have a structural imbalance–with higher expenditures than revenue. Some revenues fell from their historic levels due to Covid-era changes though some grew higher during the same period–like Real Estate Transfer Tax. But even the RETT is also now waning from previous highs, the report notes.

Federal ARPA funds have offset the structural imbalance until this last fiscal year and a large carry over from the ARPA years paid down a FY 2022-23 budget deficit that would have resembled the forecast deficits for FY 23-25. The City will have to deal with that structural imbalance going into the future, according to the report.

Budget Advisory Commission Report

The citizen Budget Advisory Commission [BAC] releases its report on Mayor Sheng Thao's proposed budget at Finance this week. BAC supports Thao’s move to use vacancy savings instead of layoffs to balance the budget, and supports Thao's avoiding dipping into the emergency fund during the downturn. But the report also takes the City to task on several issues, and surprisingly, many of them involve the City’s police staffing and policing practices:

• BAC criticizes the City’s explanation for the budget shortfall, noting that the use of ARPA funds during the pandemic only obscures the reason for ongoing budget deficits, a structural imbalance between expenses and revenue and a reliance on one-time funds to balance the budget.
• Criticizes the City and Council for opening the Oakland Police Officer's Association MOU early without sufficient notice to the public last year. BAC claims Council and City renewed the contract in a way "that both avoided public input and impacted the city budget for future years, including the FY 23-25 cycle.”
• In perhaps the most surprising recommendation, BAC recommends that the City fund OPD academies with a focus on maintaining only the Measure Z mandated staffing level of 678 , while reevaluating the OPD's patrol model. BAC suggests OPD focus more specifically on violent crimes, while relying on a greater use of alternate responders for other types of duties. BAC also recommends that in any follow up legislation to reboot Measure Z, minimum staffing requirement be removed entirely. BAC states that Oakland’s police are a costlier per capita investment than police in other jurisdictions while achieving worse results.
• BAC also suggests that the Thao budget's reliance on savings from the transition of OPD's Internal Affairs into the Police Commission's CPRA isn't realistic. BAC says it seems unlikely that transition can be completed in just one year.
• BAC also criticizes the transfer of GPF funded positions into alternate funds–those funds are meant to amplify services, BAC says, so merely using them to save GPF funds and maintaining the status quo weakens future arguments to pass bond measures.
• BAC also suggests the City prioritize funding the Democracy Dollars program, as the public clearly prioritized it by voting for Measure W in the first place

Community and Economic Development Committee

Civil Protection of the People Ordinance

At the Community and Economic Development Committee meeting Tuesday, City Attorney Barbara Parker will introduce a “Civil Protection of the People Ordinance” that she argues will allow the OCA to use civil litigation to enforce all City, county, state and federal laws. Parker explains the rationale for the proposed ordinance:

The ability of private – i.e., non-governmental – parties to vindicate their rights in court has steadily diminished in recent years, as legal avenues for individual or class action litigation have diminished and “left individuals who experience harm in the workplace or at the hands of an unscrupulous company without much meaningful recourse.” Although the City Attorney does not represent individuals, the City Attorney’s Office can and does represent the City – and in doing so, the interests of the City’s residents

Parker also notes that other cities already have this capacity and that Oakland is unable, for example, to fully enforce its wage and hour laws due to a lack of civil litigation capacity from the OCA. The City’s wage and hour and sick leave ordinances are mentioned several times in the legislative report.

The OCA also presents an equity analysis of previous civil litigations in the report, noting that most of the OCA’s actions in the past have been over public nuisance and enforcement of the Tenant Protection Ordinance. Parker argues that public nuisance suits allows pursuit of environmental degradation–as it did in the suit against lead paint manufacturers that won $14 MM in damages. Parker’s legislation also suggests that the office will seek the guidance of the Department of Race Equity in pursuit of cases.

The legislation would allow OCA to pursue monetary damages and recovery of costs and injunctive relief.

RAP Contracts with EBRHA for Landlord Counsel Services

The Housing and Community Development Department will bring a proposed agreement for a counseling services provider for landlords at Rent Adjustment Board hearings at Tuesday's Community and Economic Development Committee [CED] meeting. The contract would cover one year beginning in July for a total not to exceed $150K.

This introduction will mark the second time the contract comes to the body–previously the legislation arrived with a parallel renewal of a contract for Centro Legal de la Raza [CLR] for tenant representation services which that organization already provides. CLR won the new contract again after a competitive bidding process, and that contract has already been approved by Council. But conflict about the parameters of the landlord counseling kept the landlord services contract at RAP for finer tuning.

The landlord-focused services are part of what HCD refers to as the “right to counsel” model, with guaranteed City-funded counseling at RAP hearings for both lower-income tenants and landlords. Though the City passed legislation in 2013 that provides for such services for landlord counsel, it’s unclear if any organization specifically provided the services in the past. Housing and Economic Rights Advocates did outreach and education work for the City for property owners in a three year contract that ended in early 2022–but the organization did not submit a bid when a request by the City was put out for the focused landlord services.

East Bay Rental Housing Association [EBRHA] was the only organization to respond to the City's requests for bids last year, and the legislation to contract with EBRHA to provide the services was introduced at the same November CED Committee meeting in which the CLR contract was. But the landlord contract hit a hiccup when committee members sought to further flesh out qualifying income limits for landlords.

CM Dan Kalb sought to ensure that the 8 unit limit initially proposed included all units owned by potential clients, i.e., a total of 8 units including those in Oakland and elsewhere. Kalb also suggested that there should be the same income limit for landlords as there is for tenants–with a cut off at 100% Area Median Income [AMI].

During the discussion former CM Loren Taylor proposed an oppositional plan–with an income limit only on income derived from Oakland units and no limits to owned units outside of Oakland. Taylor’s proposed changes would have allowed large scale landlords to take advantage of the services. With no resolution to the conflict, the committee tabled the legislation until RAP could analyze the proposed structure. The agreement is now coming back with only Kalb’s recommendations, which were supported by CM Carroll Fife at that time.

HCD, in its report, argues that “the combination of these two requirements [8 unit total and 100% AMI limit of total income] to qualify for the proposed representation services guarantees that only small property owners who are charging monthly rents substantially below market rate will qualify for these services.”

EBRHA, whose Treasurer, Chris Moore, has lobbed incendiary accusations and provocative comments at Council members, will likely have a representative at the meeting backing the passage of the contract. Requests to the City to provide a potential number of landlords who fit the criteria and would be served by EBRHA was not answered by press time.

Special Meeting Wednesday 6/14 for Council President's Budget Amendments:

The meeting will present for discussion a set of amendments brought by Council President Bas and a team of Council members that included Carroll Fife, Kevin Jenkins and Rebecca Kaplan. Expect other CMs to also introduce their own set of amendments. The Bas amendments won't be published until some time Monday; Oakland Observer will have an analysis and reporting in next Monday's publication.

Editor's Note: All of the legislation described here as "passing" have met a first vote requirement. Most legislative items require two votes in two separate meetings to go into effect, but the second reading of a vote is almost always a formality that is usually done during the consent portion of the calendar. A council member can always pull the item on to the non-consent calendar on second reading, but usually the vote still goes the same. An item can be altered in the meantime, meaning it would have to go back to first reading. But it's probably safe to assume everything that was passed in the meetings described here will go into effect after a second reading.