Wednesday, April 25, 2007

Russo: It's Wrong, But We're Sticking with It

By Robert Gammon
Wed, Apr 25, 2007 at 4:54 PM

Last week, Erica Harrold, the spokeswoman for Oakland City Attorney John Russo, e-mailed the Express a letter to the editor that seemed to contain a startling revelation: The controversial deal to build 3,100 condos on the waterfront, known as Oak to Ninth, was illegal. The e-mail also misstated Oakland law and appeared to contradict Russo's official position in the legal battle over whether the condo project should be put on a citywide ballot. After the Express pointed out these issues, Harrold and Russo, in a phone interview, backtracked from the letter, but stopped short of retracting it.

The unsolicited letter was not in response to any specific Express story. Indeed, it appeared to be in response to Oakland Tribune op-ed pieces penned by Russo's Oak-to-Ninth opponents. The op-eds argued that the City Council had violated the City Charter - Oakland's primary municipal law - when it approved the condo deal last July 18.

In her letter, Harrold wrote that the council did no such thing. But she proceeded to contradict this notion: As she recounted the council's passage of the ordinance, its actions would have indeed been illegal. She stated that council members had "debated the issue, made their final decisions AT [her emphasis] the public meeting, and then directed staff to conform the documents to their decisions." She defended these actions as "the epitome of public disclosure. ... It is not in the interest of our democracy to have proposals rubber-stamped at public meetings as 'done-deals,'" she wrote.

In fact, city law requires that an ordinance be a done deal at the time of its passage. Section 212 of the City Charter clearly states that if the council changes an ordinance, it must wait at least five days before approving it. The reasoning is simple: It's a given that we want the council to debate a law prior to its passage, but when it changes a proposed law, it needs to give the public, especially people who weren't at the meeting, time to understand exactly what it is voting on.

Harrold's description of the process appeared to contradict Russo's official position. In court, the city attorney maintains that the council debated and changed the ordinance at its June 20 meeting, and then approved the changes a month later on July 18. Such a scenario, of course, would have been legal.

So has Russo changed his position? The city attorney says he has not. He argued in last week's interview that Harrold's e-mail was not technically wrong or contradictory because she mentioned "no date." In other words, what Harrold meant to say was that the "council debated the issue on June 20, made their final decisions AT the July 18 public meeting, and then directed staff... ."

So was the letter intended to mislead Express readers? And who approved it? Russo did not respond when asked whether he gave Harrold the green light.

If he did, he should have known that the e-mail also misrepresented another section of the charter. Harrold claimed "there is no requirement in the City Charter obligating the final version of an ordinance be made available to the public on the very same night that it passed." That's simply not true. Section 214 states that the city must make "three full copies" of an ordinance "available for use and examination by the public in the Office of the City Clerk ... at least three days before" the council approves it.

Russo admitted that "full copies" were not available prior to the July 18 meeting, or even at the meeting. In fact, the "full copies" were not available until July 27, nine days later. So why didn't he invalidate the ordinance for violating section 214 of the charter? He blamed the problem on a "clerical" error. Under city law, "typographical or clerical errors" can serve as exceptions to the "full copy" rule, he said.

Harrold's e-mail is reprinted below:

[To the editor:] Members of the Oak to Ninth Committee continue to obscure the facts on our office's invalidation of their petition. The Committee insists that the ordinance they used was what the Council passed in public, and changes were made later in violation of the Brown Act and Sunshine laws. This is where they are fundamentally confused. First, the Brown Act requires that meetings be noticed and that the public be apprised of what is being considered by their elected officials. We want City Council to debate, discuss, change, amend and ultimately decide important issues in full view of their constituents. It is not in the interest of our democracy to have proposals rubber-stamped at public meetings as 'done deals'. In this instance, Council debated the issue, made their final decisions AT the public meeting, and then directed staff to conform the documents to their decisions. The Oak to Ninth Committee ironically asserts that these actions were somehow a violation of transparency laws; when in reality, it was the epitome of public disclosure. Second, the size of the document (more than 1000 pages) alone meant that the FINAL ordinance would not be available the same night of passage. Court depositions prove that the Oak to Ninth Committee chose to go forward with an earlier and incorrect version of the ordinance because they admitted they wanted to be ready for a press conference. The version they chose to use did not disclose to the public the open space and public access in the project, issues that would have been integral to a voter's decision and ultimately invalidated their petition under state law. Finally, there is no requirement in the City Charter obligating the final version of an ordinance be made available to the public the very same night that it is passed. The City Charter requires 'notice' of an issue. Readers can review the City Charter at: http://bpc.iserver.net/codes/oakland/. Oak to Ninth leaders are clearly frustrated by the outcome of Council's decision and, perhaps, their own failure to follow state law. Nevertheless, the City Attorney's office will continue to safeguard the transparency and legal integrity of the petition process and the public's right to know, even if it is seen as unpopular by some.

-- Erica Harrold, Communications Director, Office of the City Attorney

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