Public Ethics Strengthening Measure Headed to Ballot; Public Record Spotlight on Federal Subpoena

PEC Strengthening Measure on Ballot After Reintroduction and Passage at Council

In a dramatic reversal, the City Council voted to put a new Public Ethics Commission [PEC] ballot measure before voters in November at a Special Meeting Tuesday. The same ballot measure legislation failed at a previous meeting during budget deliberations by a 5 to 3 vote; but on Tuesday, the dynamic was nearly reversed, with Council members voting 5 to 2 to send the charter-changing measure to the ballot. The full council meeting was heard in the midst of a day of committee meetings, which are generally held every other week, to accommodate the rescheduling of the item in time for it to potentially appear on the ballot November 5.

Long Road to Preliminary Failure

By Council policy, ballot measure legislation must have two public Council meeting readings before a vote is taken, giving the public and CMs ample time to consider all aspects of a potential voter measure. Ballot measures are also a Rules committee subject matter item and the item was discussed at length there over several meetings—and so the ballot measure received a great amount of public scrutiny beginning in May.

The ballot measure was originally drafted by the Public Ethics Commission, but once introduced to Rules, CM Dan Kalb added significant amendments, making it more his legislation than the body’s. Kalb's amendments removed the more ambitious items in the legislation, including provisions for independent counsel. Kalb modified the minimum staffing provision, but mostly kept new provisions around qualifications, appointment processes and lobbying oversight. Later, CMs Janani Ramachandran and Kevin Jenkins proposed removing a provision that would have placed the setting of the Mayor’s salary under the body's authority. The PEC currently sets the salaries for the elected offices of City Attorney and City Auditor. The mayor’s salary setting role was originally introduced as an independent ballot measure to Council, then combined with the PEC ballot measure, before being removed in amending process by the two CMs.

But even after the changes, the PEC item still faced opposition. Noel Gallo, Jenkins, Carroll Fife and Treva Reid seemed to oppose the ballot measure because of its minimum staffing guarantee and its cost on the ballot, an estimated $600K on the dais by the City Clerk. Jenkins and Fife notably compared the PEC to other departments that have no minimum staffing requirement. Jenkins, Reid, Gallo, Kaplan and Fife voted nay on the PEC ballot measure, with Ramachandran, Bas and Kalb voting yes. The decision took some observers by surprise, given the unique moment in Oakland politics, with several ethics investigations underway, including the one connected to an FBI probe of City processes and officials.

Fife Brings Measure Back for Reconsideration During Budget Deliberation

During a budget meeting just two days later, Fife successfully used Council procedures to introduce a “motion to reconsider” the ballot measure, effectively reviving it. Council’s rules allow such a motion to reconsider a vote at the meeting where the initial vote is taken, or at the next immediately subsequent meeting. The motion is considered like any motion, requiring a second and a 5 vote majority vote—the reconsidered item is then scheduled to the next meeting. The vote to reconsider passed with five votes–Reid, Gallo and Jenkins voted no—and the item was subsequently scheduled to the special meeting to consider it specifically. Fife explained her rationale for the reintroduction before the vote.

“I have been in conversation with some of my constituents who reached out to my office in the last couple of days and cited the incidents that have occurred as a reason to move items that restore trust in government,” Fife said, in her explanation for reintroducing the ballot measure. “I just want us to have another conversation about this issue and see where it lands with the public.”

Ballot Measure Would be the First Charter Enhancement for PEC in a Decade

The ballot measure, if passed by voters with a 50% +1 majority, would be the first charter change to the Commission in a decade, according to comments made at the meeting by Nicolas Heidorn, the Director of the PEC. The most significant changes in the legislation:

—changes to gift giving and lobbyist regulations
—stricter criteria for selection of Commissioners
—minimum enforcement staffing from 1, to 2, beginning in 2 years, and under same waivers for fiscal urgency
—allows PEC to fill vacancies if the public appointing official fails to do so within 120 days
—changes frequency of existing PEC role in setting City Auditor and City Attorney salaries from one year to two years

The legislation has the support of California Common Cause and the Alameda County League of Women Voters.

Core Council Group Still Opposed, but Outliers Shift

During Tuesday’s meeting, Jenkins reiterated his complaints preceding his nay vote. Jenkins has voiced the strongest opposition to the ballot measure, noting the potential $600K cost of adding a ballot measure to Oakland’s ballot. Jenkins also expressed a reactionary stance to the minimum staffing level to PEC, calling it a “gift” not bestowed on departments that were in his opinion as, or more, important.

“There was some legislation that I wanted to get through today, desperately wanted to get through, but the issue was staffing levels–planning and building staffing levels, housing staffing levels, right? Every single one of our employees are being asked to do more with less. We can't get the infrastructure right, just the basic services. We're not doing a good job at that. We have our clerks here that need minimum staffing levels. And then how do we determine what that line is? Who goes first? Who goes next? In East Oakland, we get a lot of complaints about illegal dumping. I would love to give [minimum staffing] to keep Oakland Clean and Beautiful.”

Kalb at several points tried to rebut the concerns on minimum staffing, reminding the public and council members that the PEC's minimum staffing would be waived when large scale cuts are being considered of other departments as well and that the difference was between having one and a maximum of two PEC investigative staff.

Bas reiterated Kalb’s point as she seconded the motion. She added that she would have wanted more investigative staff and drew a qualitative distinction about the importance of a minimum PEC staff in comparison to other departments.

“[the PEC] are a slightly different arm of government than our departments, which is why I think it's important to make sure that they have the ability to take these questions to the voters and make sure, after 10 years, that they have the ability to do their work,” Bas said.

In his criticism of the measure, CM Noel Gallo read a list of the provisions from an older version of the item, and even after being informed by Bas that he was reading the older version, and some of the provisions had been removed, Gallo still said he would vote no based on what he had just read. The failure to understand the legislation before him followed several months of failure to understand council processes in real time, including the mid-cycle budget process.

Both Kaplan and Fife changed their votes to support the PEC ballot measure, though Kaplan gave no reason for the change. Fife, Kaplan, Ramachandran, Bas and Kalb all voted for the measure. Jenkins and Gallo voted against. Reid, an original nay-vote, was absent.

An already scheduled full council meeting was held the next day, Wednesday, specifically to revise the city’s election setting legislation to include the ballot measure—the meeting had been scheduled in advance to accommodate the ballot measure should it pass.

Public Record Focus: Expansive Federal Subpoena Covers All City Departments and Vast Volume of Documents

A subpoena sent to the City of Oakland’s City Attorney Barbara Parker in the ongoing saga of the federal investigation into Oakland, requests that Parker isolate, maintain and collect what could be hundreds or thousands of documents over a broad range of topics and issues. The subpoena, received on June 25, compels all documents relating to a specified set of subject matter, including all forms of communications, between 2022 and present that relate in any way to:

—the Oakland Army Base
—California Waste Solutions, and its principals in the Duong family
—Evolutionary Homes, and its principals, including Mario Juarez
—Mayor Sheng Thao’s partner, Andre Jones
—documents concerning any waste management contract, or contract proposal
—documents related to any “official Oakland post”, a sweeping requirement which seems to include not only every board and commission, but every management position in every City of Oakland department
—documents related to the City of Oakland Mayoral election, which would seem to include all of the documents related to holding the election as well
—the calendar and scheduling-related communications for Thao and Jones
—any documents or communications related to proposed or passed “local homelessness emergency” from January to December 2023

Not surprisingly, Parker advised the US Attorney’s Office that the City would not be able to comply with the production of the documents by last Thursday’s due date and production could take "weeks or months".

It’s still not clear what the Grand Jury could be looking for, but focus of the investigation clearly appears to be Mario Juarez, members of the Duong family, California Waste Solutions, and what appears to be an independently run business of the Duong’s, Evolutionary Homes–which may have never actually done any business. The subpoena also seeks documents and communications regarding Andre Jones, Thao’s partner, and the calendars of Jones and Thao. Jones is not a city employee, however.

As the role of the Oakland Observer has been to keep a sharp eye on legislative and other matters in the public record for the last five years, here's a rundown on the issues from that perspective–what is visible when these issues and items have intersected the public record of legislation.

The Public Record of Army Base/Homelessness Deliberations

A focus of the subpoenas also appears to be communications and documents surrounding the Oakland Army base and homelessness. During two short periods in 2022, the army base area known as “North Gateway Parcel” was a focus of discussion at Council meetings in two linked proposals for homelessness interventions put forward by CM Carroll Fife. The proposals sought to eventually house residents from several West Oakland homeless camps to the site, including hundreds from Wood St, the City’s largest homeless camp that faced eviction from both the City and Caltrans owned parcels later that year and the next.

Fife brought legislation for the Army Base as Caltrans began to telegraph a move to enforce evictions of homeless residents from the CalTrans-owned Wood St parcels in May and then in September as the evictions became imminent, involving the army base.

Fife had publicly proposed using the Army Base site as early as 2021. In April, 2022 Fife scheduled legislation directing the City Administrator to conduct a feasibility study for housing homeless residents at the site, and then potentially housing them through a coordinated plan with City, County and State action. The legislation was heard at Council in May.

Though popular, the idea received pushback from the City Administrator’s Office. City Administrator Ed Reiskin argued that the site is deed restricted from residential uses—the city would require a difficult to win waiver from the state’s Department of Toxic Substances Control [DTSC] to contemplate using it as a homelessness intervention. But even if the waiver could be won after months or even years, the City would then have to undertake a lengthy and expensive mediation process.

CWS, which would be starting construction at some point in the near future for a recycling facility on the site, also opposed the plan in May. CWS sent a representative from the McConnell Group, the company’s lobbyist, to lodge opposition to the idea at the May meeting. The legislation, which initially only required the CAO to conduct a feasibility study, was passed.

The CAO returned to Council with a report in June which cast any residential project at North Gateway as a remote likelihood, due to the cost of seeking a waiver of the deed restriction against residential uses from the California Department of Toxic Substances Control, itself a lengthy process, then an expensive and lengthy remediation process. CAO Reiskin told council members at that time that the process would take so long that the two companies that are in negotiations to occupy areas of the site, CWS and CASS, would undoubtedly need to begin construction before it was over. Regardless, costs for running a site would be in the tens of millions per year.

The CalTrans eviction of Wood St had been announced earlier in the year, but was delayed by a restraining order brought by residents and advocates, which pushed the eviction into early Fall, a clear predicate for the urgency in Fife’s moves in September 2022 to bring the idea back for consideration. This time, initially, the legislation came with direction to the City Administrator to open the site promised to CASS, an 8-acre parcel, for immediate occupation by homeless residents—with the City, County and State seeking a more “stable” intervention later. The City Attorney included a memo into the legislation which was heard in October, which characterized the direction as a potential charter violation if the legislation were to pass and recommended removing the direction.

Council took the City Attorney’s advice, and removed the direction to the City Administrator in passing the legislation. Though funds were allocated to pursue the DTSC residential waiver at a later meeting they were never apparently never used. The idea faded out of legislative view in 2023.

Though at the meetings, City staff had said that CASS could begin construction by 2024, the company is still in the initial phases of negotiating for its parcel on the property; CWS has not yet started construction on the site, despite having a DDA. In the report the CAO predicted that CWS would be ready to start construction by January 2023, but no construction has begun. The City is committed through several policies to finding alternate sites for the recyclers out of residential areas and to the army base, but at some level that has stalled.

City Boards and Commission Appointments

In late 2022, the Schaaf administration made a move to fill 11 board and commission reappointments and vacancies, an unusually high number, as the last weeks of her 8 year administration ran their course. Thao in early December, after winning the Mayoral seat but still in her role as Council member, moved to table the boards and commission appointments, which were largely advisory. Thao argued at the time that as the incoming Mayor, she deserved the opportunity to fill board appointments. Thao received support from CM Rebecca Kaplan to table the items and withdrew almost all of the proposed Schaaf appointments. In several of the board appointment proposals that were withdrawn, Thao, later in her administration, simply reappointed a standing Commissioner or Board member.

Oakland Police Commission
Housing, Residential Rent And Relocation Board Appointments
Library Advisory Commission
Cultural Affairs Commission
Children’s Fairyland Board
Privacy Advisory Commission
Commission on Persons with Disabilities
Commission on Homelessness
Bicyclist Pedestrian Advisory Commission

Of the Commissions where appointments were withdrawn, only the OPC has charter-mandated powers. The Rent Board and Privacy Advisory Commission have powers derived from city ordinances that affect legislation and policy. The rest have only an advisory role.

Schaaf’s list included the reappointment of Brenda Harbin-Forte, a Schaaf appointee to the Police Commission. But even after assuming office, Thao didn’t appoint a new Mayoral selection Commissioner and Harbin-Forte continued to serve on the OPC on an extension of her appointment—a typical dynamic at the Commission, where Mayoral appointees have continued to serve for up to a year past the expiration of their terms without official reappointment. Thao removed Forte last year as personal conflicts between Harbin-Forte and other Commissioners reached a public crescendo, but still hasn’t appointed a successor. The body elevated an alternate to fill the void. Harbin-Forte went on to pursue the current Mayoral recall.

During her administration, Thao has made appointments and reappointments to over 25 bodies and commissions, according to Legistar, Oakland’s legislative database. All were passed by the City Council, a necessary requirement for Mayoral recommendations. None reviewed by this publication appear to have any connection to Juarez, the Duong family or CWS.

Board Conflict While Under Subpoena

At the Rules Committee meeting on Thursday, Thao submitted reappointments of Schaaf-era appointees to the Port Commission of Andreas Cluver, the Building Trades Secretary Treasurer, and Arabella Martinez, the founder of the Unity Council. Both organizations have business before Council. The Building Trades are currently engaged in a lengthy campaign to add a project labor agreement to Measure U funded affordable housing that will benefit the organization and its members. The Trades, and Cluver, mounted a public pressure campaign chiding the Council about any delays in approving City Council agreements to move ahead with the now-failed Howard Terminal stadium and residential development. The Unity Council is a go-to contractor for social services, and receives significant funding for affordable housing developments in the Fruitvale area– indeed, a Unity Council residential project is named after the Port Commissioner.

The appointments met resistance at the Rules Committee, the subject matter committee for appointments. According to Council President Rules Chair Bas, CM Dan Kalb prefers considering environmentally focused candidates instead of automatically reappointing Martinez. CMs Ramachandran, Fife and Gallo, who spoke as a member of the public, opposed even considering alternate candidates beyond Martinez. Cluver’s third appointment was never questioned. Cluver and Martinez if appointed, will each have served over a decade by the end of this term if appointed.

The item was moved to Council meeting on June 16 on consent, but could be pulled for discussion. That would be a rare discussion about appointments at a full council meeting during a fraught moment for the issue.

Local Declaration on Homelessness

The subpoenas also seek communications and documents concerning the City’s pro–forma declaration of a local emergency on homelessness. The initial declaration was introduced in 2019 by CM Kaplan. As a symbolic declaration, the resolution is added to each regular Council meeting agenda and passed generally without comment in bulk with other legislation on the Consent Calendar.

At a meeting on 9/20/22, as Wood St faced imminent eviction, CM Fife pulled the declaration to the Non-Consent Calendar to discuss homelessness in general, in the context of ongoing evictions of the Wood St encampments. The City Attorney’s office cautioned that it could only be discussed broadly and after a short discussion that only touched on the issue of homelessness, it was passed on the Non Consent calendar as an individual item with no amendments.

The declaration has appeared on nearly 50 city council agendas since 2022, and 18 times in 2023, the range specifically requested for the declaration documents, where it is usually passed on consent with no discussion.

Ironically, legislation already in motion by Jenkins and Ramachandran introduced at Rules Thursday sought to rescind the declaration. Jenkins and Ramachandran argued that the City now has bodies and policies on homelessness it didn’t have in 2019, thus relegating homelessness to an urgent, but no emergency, matter. The idea met resistance from City staff on Thursday, who noted that the resolution facilitates certain functions on homelessness service provision.

Voluminous Production of Documents Will Likely Take Weeks or Months

The subpoena is likely to produce hundreds and perhaps thousands of documents because it includes broad requests for all references to items like the Army base, garbage contracts, the 2022 elections and board appointments since 2022. Local media organizations reported that City Attorney Parker notified the Grand Jury that the City would not be able to produce all of the requested materials by the nominal due date.

Evolutionary Homes, a Company on Paper

Juarez was originally listed as an “organizer” on Evolutionary Homes initial articles of incorporation in September 2022, but was removed in January this year in an updated statement of information—though it's not clear by who. An organizer may be a manager or stakeholder in the org, or could simply be the person who files the paperwork at the Secretary of State. Updated documents don’t list Juarez’s name–although members of the Duong family are named as principals in the company, Juarez isn’t.

The corporate statement of information which removed Juarez was turned in shortly before the ALCO DA brought charges on allegations of Juarez bouncing checks to the US Postal Service in relation to mailers Juarez sent out during the mayoral election. There has never been a statement of information listing Juarez as a principal in the company.

Regardless, Juarez appears to have been actively involved in promoting Evolutionary Homes until late 2023. Juarez appeared in a video promoting Evolutionary in late December. Oaklandside reported on meetings representatives of the company had with city officials early last year. The company no longer appears to have a physical location, and it's unclear if it actually ever manufactured or sold any of the modular housing it marketed. Evolutionary Homes is mentioned in no City or Council legislation or reports since its founding.

Police Reports Cast Doubt on “Targeted Hit” Narrative

A subpoena with a far smaller scope was sent to the City as well this week, asking for police reports by or about the Duongs and the internal phone and email tree for the Oakland Police Department. The subpoena also asks for "documents sufficient to show all sources of federal funding the City has received from January 1, 2021 to present", which is a matter of public record.

Up until now, the OPD has played only a background role in the saga. Juarez claims to have been the target of two attempts on his life—one involving the Duong’s directly and another at his home on Fruitvale Avenue—that produced police responses and reports. Now it appears that those reports may be of interest to the Grand Jury. It's not clear why the FBI didn't seek the reports through one of its partnership or liaison programs with the OPD.

In the incident involving the Duongs directly at the offices of CWS, Juarez maintains that members of the family and others attacked him. Both parties recounted conflicting accounts in two separate police reports made about the day. The Duongs say Juarez made threats and was armed. Juarez also claims the Fruitvale Avenue shootings were possibly “retaliation for a criminal investigation” he is involved in, as hyperbolically reported by the East Bay Times based on police documents.

The Oakland Observer has reviewed investigative documents related to Oakland police reports on the shooting on Fruitvale Avenue as well. Despite the EBT claims of a "targeted hit" by "would-be assassins", several sections of the report indicate that the perpetrators may have lived on, or habitually spent time on, the block.

An anonymous witness in one section of the report recounts seeing two of the individuals involved in the neighborhood before—the witness had "seen them previously at the liquor store or at the park down the street." The witness said that the two began throwing a brick they’d found at Juarez’s vehicle before shooting at the vehicle then leaving and returning again.

The report also describes "a large group of people loitering around the vehicles [used in the attack] that appeared associated with [an] apartment complex" about half a block down the street from Juarez's home. The alleged assailants entered the cars parked in front of the complex, according to video evidence.

Juarez's son only provided a "brief" statement to police, "but would not provide an additional statement without speaking with legal representation first".