Oakland Politics Week in Review, 4/10/2023

Oakland Politics Week in Review, 4/10/2023: Amended Eviction Moratorium Legislation Heads to Council with Weaker Tenant Protections, Shorter Timeline; End to NSA on Hold as Orrick Extends Sustainability Period; and More: Update, Response from EBRHA

Proposed Legislation Ends Eviction Moratorium in Mid-July Without Rampdown: Adds Permanent Protections for Covid-Related Non-Payment of Rent; Just Cause Amendments Dialed Back

Despite committee passage at a fraught Community and Economic Development Committee [CED] meeting last week, Council President Nikki Bas and CED Chair Dan Kalb will introduce an amended version of their proposal for a conclusion to the City's Eviction Moratorium at Tuesday’s full City Council meeting.

Originally, Bas/Kalb proposed a phased ramp down of the EM, where evictions for non-payment of rent unrelated to Covid could begin for rent owed in May [with the caveat that evictions could only be pursued if at least one HUD-defined month's rent is owed], and Covid-related non-payment protections would endure until August 30 in units covered by the Just Cause Ordinance [JCO]. The newly amended eviction moratorium-ending legislation would end the moratorium for all tenants in a Just Cause unit on July 15 if it is passed. Evictions for unpaid rent that could be attributed to Covid-related distress would remain banned for the period from March 2020 to July 15, 2023, the duration of the EM. Going forward, all non-paid rent, regardless of the reason, would become a basis for potential eviction if the legislation passes. The rent increase moratorium would be codified in the JCO and end on June 30, 2024, as in the initial version of the legislation presented Bas/Kalb at CED.

Dialing Back "Substantial Damage" Clause

Bas and Kalb also amended other elements in the Just Cause portion of the legislation, dialing back a stricter rule on evictions for substantial damage to a much lower threshold–to the alarm of tenant organizations. The original Bas/Kalb legislation proposed changing a clause in the JCO that would require landlords to prove substantial damage to landlord and/or tenants as a predicate for eviction based on lease violation. But new language apparently pushed by Ramachandran and Jenkins for assurances of their vote for the package, guts the effective part of the amendment. Jenkins, Ramachandran, CM Treva Reid and CM Noel Gallo appear to be in a loose bloc on the issue, though Gallo’s rhetoric and proposed amendments at Tuesday’s CED meeting clearly aligned with landlord groups far more than Jenkins and Ramachandran do.

Gallo's Landlord Lobby Boilerplate Amendments Fail to Influence

Gallo's proposed amendments, which are basically the EBRHA slate of demands, will likely not be considered as they have not been vetted by the City Attorney's office. While Gallo's proposals don't appear to have moved the needle, the JCO change as well as the shortened ending timeline appear to be compromises with the Jenkins/Ramachandran block he is a part of.

Jenkins/Ramachandran Positions Alarm Tenant Advocates

The positions staked by Jenkins and Ramachandran surprised many tenant advocates who supported their candidacies last year. During Tuesday’s CED meeting, Jenkins pushed back on the “substantial violation” language, claiming that it was redundant to an eviction defense already established in case law. Jenkins said he also believed that the moratorium had hit affordable housing nonprofits. Kalb added an amendment to the legislation that would allow the definition of substantial damage to include failure to comply with income recertification at deed-restricted affordable housing properties to satisfy that complaint.

Bas presented the legislation, which had already been published for Tuesday’s agenda, publicly on social media on Friday, describing the new timeline as one adequate for tenants and landlords alike. Bas wrote that the that JCO amendments would “add new permanent tenant protections to help avoid a surge in evictions.”

The original proposed legislation, above, and amended language below

Ramachandran also published the proposal on Twitter, but received pushback from tenant advocates on social media, who urged her to drop demands that the substantial damage clause be weakened. Staffers at ACCE, East Bay Community Law Center, APTP, Oakland Tenants Union and EBHO all advocated for the “substantial damage” clause in the Twitter comments. Ramachandran defended her position in her tweets.

“I’ve defended tenants facing eviction for being non-substantial lease violations, and won based on existing protections and case law. There is no need for duplicative language/ language that simply clarifies existing law,” Ramachandran wrote.

But tenant advocates argue that codified language in the JCO would stop many eviction filings from ever happening in the first place, and could be used to shut them down in court early in the process. The current perception appears to be that Bas, Kalb and other CMs who previously supported the "substantial damage" clause would change it back to the original amendment if Ramachandran and Jenkins let go of their opposition.

In comments to OO, Jenkins said he’s still open to further compromise on restoring the substantial violation clause amendments that Bas and Kalb had originally introduced.

“‘I’ll see if there’s support from the other Council members … I’m open to it if the support is there,” Jenkins said.

EBRHA Landlords Quiet on New Proposal, Despite Demands for Immediate End to EM

The legislation has had a contested road, as EBRHA has constructed “mom and pop landlord” protests by reaching out to groups like Business and Housing Network, a South Bay-based landlord organization, and by calling on landlords from all over the Bay Area through their membership organization. But in the end, the focus of the loudest complaints–the duration of the moratorium–seems to now be the least-contested element of the plan.

Rather, the Just Cause amendments, which were only vaguely alluded to by EBRHA leaders like Chris Moore during last Tuesday’s meeting, are proving to be the biggest bone of contention. Throughout the ramp down discourse, EBRHA has maintained that able-bodied scofflaws have simply feigned Covid-linked economic distress and used the moratorium to forego rent payment. But the original legislation would have allowed landlords to begin pursuing eviction in many such situations where a Covid-link could not be proven over a month earlier.

Though EBRHA promoted their “rally” last Tuesday on their website, no similar preparation appears to be happening now for this Tuesday’s Council vote. EBRHA had made no public statements about the proposal by Friday.

CED Meeting Balanced by Presence of Tenants/Advocates

Tuesday’s CED meeting, unlike previous ones descended on by EBRHA, had ample tenant and tenant advocate participation–most likely because the moratorium ending process was agendized for deliberation for the first time. The tenant participation nudged the frame of the deliberation closer to Oakland's reality where most residents–and an overwhelming 68% of Black Oakland residents–are renters. The majority of Oakland’s 3,541 Emergency Rental Assistance applicants in Oakland–52%–are also, unsurprisingly, Black renters, as well, according to City of Oakland data.

But Bas, in her introduction to the legislation on Tuesday, also noted that very few Oakland homeowners had pursued the state and federal mortgage relief and property tax assistance programs that would cover many of the mom and pop landlords that EBRHA has highlighted in its most dramatic examples–those who live in a home that has four additional units, including ADUs, but are at risk of losing their home due to tenant non-payment. The number of Oakland households that had accessed the program was in the dozens, according to Bas.

Bas appears to be correct. The State mortgage relief site breaks down program allocations by ZIP code only, but the number of homeowners who pursued the relief in ZIP codes that include Oakland was about 40 total according to the OO’s calculation. Some of those homes may actually be in Emeryville, Berkeley or San Leandro. The total for all of Alameda County was 289. It’s unclear how many were landlords, but the requirements seemed to generously allow landlords living on their property as primary residence with up to 4 units, including ADUs and 2 and 4-plexes. The data stands in sharp relief to many claims made by landlord lobbyists that "mom and pop landlords" are in danger of losing their home to foreclosure.

Judge Rules City Still Out of Compliance on Essential Negotiated Settlement Agreement, Extends Sustainability Period Until at Least September

In a not very surprising move, Judge William Orrick ruled this week that Oakland is still out of compliance with central tasks of the NSA and will extend the “sustainability period” until at least September. This draws to a close speculation about OPD's sustainability efforts, which have been taking on water since an independent investigation of Oakland’s IAD processes found favoritism under former Chief Leronne Armstrong leadership. As recently as January, Armstrong assured the Police Commission that he had had no doubts OPD would emerge from the sustainability period free of oversight by June despite the then-nascent IAD issues.

Armstrong’s many public comments alleging the Monitor's corruption and greed are what most likely led to Armstrong’s termination, however. Orrick apparently did not speak at length about the termination or Armstrong’s role or claims. Orrick may order less involvement of the monitor, however, over time, with transitional processes of oversight going to the Police Commission–or at least that is the hope of the body, which sent the judge a multi-point transitional plan for moving forward out of court and to independent oversight.

At Council This Week:

Several significant items were voted out of Committee unanimously and thus will go on to a full vote as consent items. Consent items generally have little discussion because they have been voted for unanimously by a subject-matter committee.

--the OSA Lease for 1911 Telegraph

--OPD helicopter maintenance contract

--and an increase for Coliseum Connections displacement funds

Update, 4/18/2022, 10:30am:

EBRHA's Marketing Communications & Public Relations Manager, Chris Tipton, responded to questions from the Oakland Observer today via email. Tipton says that EBRHA isn't calling for a rally, but does plan to have members in attendance and expects a "strong turnout". EBRHA wants an immediate end to the Eviction Moratorium and no Just Cause amendments. Tipton said EBRHA opposes the "substantial damage" clause,

"EBRHA has asked, what is the definition of "Substantial Damage"? Councilmembers Bas and Kalb can't give us a clear definition and the City Attorney was unable to as well. This vague language will completely undermine standing leases and prevent owners from enforcing basic business and property risk management. This will wreak havoc, blur the rules, and unnecessarily flood the court system with a backlog of litigation," Tipton wrote.

Unlike previous calendaring for meetings on its website, however, EBRHA only lists the meeting and time on its website front page, not an explanation of the legislation or instructions for members. The link goes to a blank page, the calendar does not list the meeting.

--thanks to Rachel Beck for editing