Oak to Ninth Yin-Yang 

How can a valid city ordinance be based on an invalid document?

When you sign a petition to put an issue on the ballot, do you read the whole thing, including all the attachments? Have you ever met someone who does? Would it bother you if a thousand-page petition was missing some inconsequential pages?

What about our elected officials, the people we pay to write and enact laws — should they read a proposed law in its entirety before approving it?

It's safe to say that most of us would say no to the first three questions and yes to the fourth. As Oakland City Attorney John Russo interprets the law, however, state and city codes require the opposite scenario: It's okay for the city council to enact a law that doesn't exist in its final version, but a citizen petition based on the same incomplete document must be invalidated.

One of Russo's opponents, Helen Hutchison, president of the Oakland League of Women Voters, called this seemingly contradictory viewpoint "convoluted." Oakland attorney Stuart Flashman just called it "wrong." Whatever the case, it's at the crux of a legal battle over the controversial plan to build 3,100 condos on the city's waterfront, known as Oak to Ninth.

For the past seven months, much of the focus has been on Russo's decision last September to throw out a grassroots petition to put the condo project up for a citywide vote. The petitioners, known as the Oak to Ninth Referendum Committee, gathered more than 25,000 signatures in about three weeks — some 6,000 more than needed to qualify for the ballot.

But before the signatures could be verified, Russo said the petition package signature gatherers used was defective because it did not include "the full text" of an ordinance the council passed when it approved the condo project on July 18. Russo said the petition was missing some documents. In particular, he made a big deal of two maps it lacked.

But after the petitioners sued Russo and the city, the plaintiffs discovered that the maps had been missing for a while. Last week, Flashman provided Full Disclosure with a copy of a sworn statement from one of Russo's own staff attorneys, Rachel Wagner, who admitted the maps and other documents were "not provided to the city council at or prior to its meeting on July 18." In fact, those documents were not publicly available until nine days later.

As a result, it would have been impossible for council members to have read the ordinance in its entirety prior to the meeting in which they greenlighted the condos. "Basically, they're claiming it was a 'virtual ordinance,'" said Flashman, the petitioners' attorney. "But it's not really a virtual ordinance in the sense that it only existed in cyberspace: It didn't even exist in cyberspace."

On the surface, the missing documents would appear to violate two Oakland public disclosure laws — the City Charter and the Sunshine Ordinance. Both require that the city publish and distribute an ordinance in its entirety to the public and the council no later than 72 hours before the appropriate council meeting. That way everyone knows in advance exactly what the council is voting on.

But in an interview, Russo noted that the 72-hour rule exempts "clerical and typographical errors." He then argued that this exemption covers the missing documents. "It's clerical," he said, and added that nothing substantive was missing from the package.

So if it was a "clerical" error and nothing "substantive" was missing, then how, you might ask, could Russo justify throwing out the petition? After all, it was based on an identical package.

Russo claims he was "forced" to do so because state election law, which governed the petition drive, "is much more exacting" than city law. Unlike city law, he said, state law requires a precise copy of the ordinance be incorporated into the petition, and no documents, no matter how insubstantial, can be missing.

It's debatable whether Russo's interpretation of state law will prevail. Flashman pointed to a state Supreme Court February 2006 decision (Costa v. Superior Court) that may undermine it.

In that case, which was based on a legal fight over the 2005 statewide redistricting initiative, the court reaffirmed a longstanding precedent that says petitions must not be invalidated for minor errors or omissions. Mistakes can even be "substantive," the court said in its 4-3 decision, as long as they do not "materially" affect the petition's meaning.

So did the missing documents, which Russo claimed were not substantive enough for the council and the public to need on July 18, suddenly become indispensable for the guy signing a petition outside the local Safeway? Based on events to date, it sounds like Russo plans to spend a lot of our tax dollars to find out.

I Sue Thee!
Well, on Second Thought ...

Making decisions and checking the facts later seems to be a habit with John Russo lately. Or maybe his office was just too busy fighting the Oak to Ninth foes to do some double-checking before going public on a separate case. As a result, Oakland's city attorney now has a bit of egg on his face.

Back in late January, Russo issued a press release and held a news conference with Council President Ignacio De La Fuente, touting a lawsuit Russo's office had filed against the East Bay Municipal Utility District. The suit alleged that EBMUD was responsible for a landslide that had undermined and damaged homes along McKillop Road in Oakland. According to the suit, a leaky EBMUD reservoir was to blame. "Unfortunately, we had no choice in this matter," the Oakland Tribune quoted Russo as saying at the press conference.

There was only one problem. Russo's office couldn't legally sue the utility district, because it had failed to first file a routine claim against the agency, as EBMUD policy requires. The oversight compelled Russo to withdraw the suit — sans press conference — in mid-March.

Private citizens must always file a claim in advance of a lawsuit, while public agencies often may sue one another without first filing a claim, Russo's spokeswoman Erica Harrold explained in an e-mail to Full Disclosure. But some government entities, EBMUD being one, do require it.

Harrold, however, did not respond when asked whether Russo was embarrassed that he had called a press conference before checking out the legal requirements for the EBMUD suit, nor whether anyone would be held responsible for the error.

Secret Task Forces Revealed!

If you read last week's column ("Base Politics," 4/18), you know all about Oakland Mayor Ron Dellums' secret task forces. If you missed it, here's the condensed version: The mayor, who ran on a platform of transparency and open government, commissioned 41 citizen task forces that have been meeting for months behind closed doors to create his mayoral agenda. The groups, now in their second round of sessions, have been so secretive that the mayor has not even released their names publicly, let alone members' names and affiliations.

But lo and behold, following last week's column, a City Hall source e-mailed Full Disclosure a list of the task-force names and their primary topics. Power of the press, you ask? Apparently not. In a later phone conversation, Dellums' spokeswoman Karen Stevenson asked Full Disclosure to keep the task-force names secret until mid-May, when the mayor plans to publish their initial results.

Now Full Disclosure is not paid to keep secrets. You can find the names posted on our news blog (EastBayExpress.com/92510). And here's one we just love: One of the mayor's top-secret task forces — whose meetings Dellums prohibits the press from attending — is named "Transparency in government, public ethics, making city procedures and policies understandable in plain language."

But this is where the irony meter flies off the charts: After last week's story came out, two separate task-force members contacted Full Disclosure to discuss their experiences. Both said their respective groups were disorganized and lacked leadership. Disagreements often got out of hand, and members got so fed up that they stopped coming. The membership of at least one task force dropped from forty to less than ten people. The two also said they were frustrated that they could not share their findings with other task forces, and that they had no idea what the other groups were working on.

Now for the kicker: Neither would talk on the record. Both wanted their names, affiliations, and task-force names kept secret. Why? One feared Dellums' staff would kick him off the task force. The other was afraid of being blackballed in Oakland for speaking to the press. How's that for transparency in government?

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