Blogging Bayport Alameda

August 1, 2016

Lawyered. The Disaster Council edition

Filed under: Alameda — Lauren Do @ 6:01 am

At a City Council meeting about a month ago a prominent Trish Spencer support and subsequent appointee to the Open Government Commission spoke during public comment non agenda items about the Alameda Disaster Council.  He wanted to reiterate Trish Spencer’s belief, I mean his belief that the Mayor should indeed be in control of everything when a disaster hits rather than the City Manager.

Here was his letter to the City Council that was passed along to the City Attorney to provide an opinion to the City Council:

I was gratified to view the video of your June 21 meeting wherein Councilmember Daysog recognized the conflict between Section 2-24.6 of the proposed amendment to the Municipal Code regarding the powers and duties of the Director of Emergency Services (dentified in Section 2-24.3 as the City Manager) and Sections 6-1 of the City Charter which provides that the Mayor “may take command of the Police and Fire Departments and govern the City by proclamation whenever the Council determines that public danger or emergency requires such action.”  I helped to draft the June 17, 2016 letter directed to Council by the Alameda Citizens Task Force which advised you of this conflict. However, in my view,  the language that you added to Section 2-24.1 of the proposed Ordinance, wherein you recite the above quoted language from the charter, but state that, “This ordinance is neither intended to restrict nor does it conflict with City Charter Section 6-1…”, does nothing to resolve the conflict, and, in fact, exacerbates the problem.

Section 2-24.6 gives powers to the City Manager, acting as the Director of Emergency Services that clearly conflict with the Mayor’s powers under Section 6-1 of the City Charter.  A Council proclamation of a local emergency this Section gives the City Manager, acting as the Director of Emergency Services, the following powers, inter alia:

  1. Control and direct the effort of this emergency organization for the accomplishment of the purposes of this ordinance (Sec. 2-24.6a(3))
  2. Direct cooperation between and coordination of services and staff of this emergency organization; and resolve questions of authority and responsibility that may arise between them (Sec. 2-24.6a(4))
  3. To make and issue rules and regulations on matters reasonably related tithe protection of life and property as affected by such emergency; provided, however, such rules and regulations must be confirmed at the earliest practicable time by the City Council (Sec. 2-24.6a(6)(a)
  4. To require emergency services of any officer or employee and, in the event of the proclamation of a “state of emergency” in the county in which this city is located or the existence of a “state of war emergency,” to command the aid of as many citizens of this community as deemed necessary in the execution of duties; such persons shall be entitled to all privileges, benefits, and immunities as are provided by state law for registered disaster services workers; (Sec. 2-24.6a(6)(c)

I submit that there is no difference between the above powers and the powers of the Mayor under Section 6-1 of the City Charter to ” take command of the Police and Fire Departments and govern the City by proclamation whenever the Council determines that public danger or emergency requires such action.” .

The statement that no conflict exists added to Section 2-24.1 of the proposed Ordinance does not make it so, nor does the fact that previous versions of this ordinance dating back to 1951 contain the same conflict. In fact, inclusion of such a statement renders the entire Ordinance confusing, ambiguous, and contradictory.

In my view there are only two ways to resolve this conflict; 1) Identify the Mayor, rather than the City Manager as the Director of Emergency Services; or 2) Place an Amendment to the Charter on the ballot at the next available election that proposes to delete the Mayor’s emergency powers and give said powers to the City Manager. It is not my purpose to advocate alternative one or two. However, it is my purpose to avoid an Alexander Haig moment in the midst of a disaster, or even worse, an ongoing conflict between the City Manager and the Mayor during s disaster with emergency personnel not knowing who is in authority.

The City Attorney, the legal authority of the City, said, yeah, not really.  In her opinion to the City Council:

Based on correspondence and statements from the public (the latest of which is copied below), I thought it may be helpful to try to clear up confusion regarding emergency operations activities, individual roles and the interplay between the City Charter, the City Council adopted Comprehensive Emergency Management Plan dated 2008 and the proposed Disaster Council ordinance (which will be before Council for final adoption on July 5).

Charter Article VI, Section 6-1 was part of the original Charter adopted in 1937.  It provides:

“The Mayor shall be the official and ceremonial head of the City and shall preside at all meetings of the Council.  He may take command of the Police and Fire Department and govern the City by proclamation whenever the Council determines that public danger or emergency requires such action.”

Since 1937, governmental agencies, including the City of Alameda, have gotten much more sophisticated about planning and implementing local activities when faced with emergency/disaster situations.  In 2008, the City Council put in place the Comprehensive Emergency Management Plan, a lengthy document which completely fills a two-inch, three-ring binder.  That document sets out best practices, consistent with state and federal laws, for the City of Alameda to address the needs of its citizens in case of an emergency/disaster.  The City Council, including the Mayor, is the policy body; the City Manager as Emergency Operations Director implements Council policy. That separation of powers (legislative and executive branches) is an underlying theme throughout the City Charter.  It is not contrary to City Charter Section 6-1.  The Council has adopted a plan to manage the City in the face of public danger or emergency.  Having done so, it is unlikely, but possible, that if that plan fails, the Council may have to take other action, including the possible action authorized in Charter Section 6-1. Charter Section 6-1 is permissive not mandatory.

The Disaster Council ordinance, required by the State Office of Emergency Services to enable the City to avail itself of certain state funding and services, has two parts.  First, it establishes a “Disaster Council” which is a planning group made up of local and regional emergency service providers who are tasked with recommending modifications to the City’s Comprehensive Emergency Management Plan, and related plans, for the City Council’s consideration. The Disaster Council is not activated during an actual emergency/disaster. State approved models allow for that Disaster Council to be chaired by a mayor or a city manager.  The Director of Emergency Services implements the Council-adopted emergency plans and is the City Manager.  This role is consistent with the City Charter separation of powers.  See, for example, Charter Article VII, Section 7-2 (A) which provides “The City Manager shall have the power and it shall be his or her duty to administer and execute policies and undertakings formulated by the Council.”  Further, Charter Section 7-3 provides: “Neither the Council nor any of the members thereof shall interfere with the execution by the City Manager of his or her powers and duties.”

There also seems to be some confusion about the process to and implication of declaring a disaster.  This is a technical term with requirements and procedures set forth in the City’s Comprehensive Emergency Management Plan. These requirements and procedures comport with state law.  The “disaster declaration” triggers various state and federal mutual aid responses and financial reimbursements and, therefore, is time sensitive.  If there is not time to call an emergency session of the City Council, the Director of Emergency Services (City Manager) is authorized to declare the disaster, which action must be ratified by the City Council within seven days or the declaration is nullified.  The disaster declaration is not done by ordinance, therefore, the provisions of City Charter Article III, Section 3-12 are not triggered.

City staff will be returning in the future to the City Council with updates on status of plans, training and readiness for the City to handle an emergency/disaster when such a situation may befall the City of Alameda.  This effort is a continuing process.  Roles are clear and consistent with the Alameda City Charter. I hope this clears up some of the confusion.

Boom.  Lawyered.

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25 Comments »

  1. Second sentence of second paragraph of quoted letter seems to be missing a word. Maybe “emergency UNDER this section”

    Comment by MP — August 1, 2016 @ 6:38 am

  2. Well, we’re already out of compliance with Charter, aren’t we? Because it clearly states the mayor is a “he”. So.

    Comment by Not. A. Alamedan — August 1, 2016 @ 6:52 am

  3. I think the city attorney is essentially correct about the CityCharter provision. An emergency can be declared but that does not automatically transfer direction of fire and police to the mayor. Rather, the Council may transfer direction of fire and police to the mayor when an emergency calls for that or makes it necessary. The charter could be clearer on that point, but better to have an understanding before disaster strikes.

    The City attorney is adding that part about the Charter provision being there in case preset emergency plans failing. The charter predates those plans. Another way of saying that is that it is a good idea for the City Council to let the emergency plans work and then only in the event of failure should the Council exercise its power under the Charter to place direction police and fire in the hands of the mayor.

    I guess whoever would ultimately take on that role should be ready to take a pop quiz on the contents of the two inch think pre-prepared plans – the collective best guess about what should be done in an actual emergency – before taking the helm.

    Comment by MP — August 1, 2016 @ 7:14 am

  4. The problem with pre-prepared plans is that, in a real emergency, emergency directors will be flipping pages looking for the right fit of the plan for the event instead of thinking on their feet when time is of the essence. Especially if the ER director is at home in Berkeley when the emergency happens, yet the mayor is living in Alameda in the middle of it.

    What page is the contingency plan for the next time an airplane crashes into an apartment house in Alameda? Since we’ve already experienced that one, there must be a plan for it, right? [Right now on Facebook there’s a discussion about what disaster Alamedans remember most. Plane crash is winning, hands down].And what is overwhelmingly remembered is how the Mayor, Terry LaCroix, stepped up–probably without a manual in hand–and took charge.

    Many disasters seem to happen at night or on weekends [like the Oakland firestorm], when most city staff who work here but do not live here, are not going to be here. I just hope they stop arguing about what to write down about what to do in a disaster before the next disaster.

    Comment by vigi — August 1, 2016 @ 9:25 am

    • I flipped through the 2008 Emergency Plan on the City website. I’m not sure I was looking at the right document. It is very long and doesn’t have much in the way of specific plans for specific types of emergency — like you say, a lot depends on the incident itself . Although the people at the top of the various chains of command in the document might not be available, there is likely someone further down who will be. If that person is not adequate, the council can act to designate the mayor.

      The document appeared mostly to be background on the relationships of various laws, agencies (bureaucratic issues), and, generally, background on the types of emergencies, including earthquake, to which we a prone. The document has some evacuation zones, meaning which bridge (or tunnel) you take in a general evacuation depending on where you starting point is. Like the document says, “The preferred alternative to evacuation is to have the affected population Shelter-In-Place.” (page approx 198)

      Comment by MP — August 1, 2016 @ 10:25 am

      • Interesting that there is a presumption that Alamedans will be leaving the island in a disaster. Historically, Alamedans have stayed put [my family has been here since 1870s and none of us left the island during any disasters that have happened since]. If anything, the rest of the Bay Area has come to Alameda during a disaster [eg 1906 SF quake]. During the 1991 firestorm, Alameda NAS runways were used as staging areas for aerial firefighting support
        .
        I don’t recall Alamedans running off the island during the 1989 Loma Prieta.

        In a regional disaster, where would we be going that is safer?

        Comment by vigi — August 1, 2016 @ 12:02 pm

  5. Vigi, I’m glad to know that your family hasn’t left the island since the 1870’s. What type of longevity shrine would you like? I’m meeting with the planning department later this week.

    Based on past experience and observations I’m certain the Mayor would be ill-prepared to lead in the event of a city wide disaster. Her prep works seems to be last minute and her thoughts seemed to be easily swayed by her friends, oops, I mean advisers. Take for example, her swearing in speech, if you can follow along with her ramblings she admits that she doesn’t give much forethought to things before she acts. And, as a reminder, although some city employees live off the island, there are other senior level staff that live on the island that would be able to lead in the current City Manager’s stead if she were unable to get to the island during an emergency.

    Comment by Jen — August 1, 2016 @ 12:26 pm

    • In 1981, this Island and much of the Bay Area came under full aerial chemical weapon assault activated by external interests and against the will of the populace. The guise used to justify the assault came from powerful interests which we could not defeat: “They have rejected our program of ground spraying in favor of aerial spraying which threatens the well-being and personal security of 500,000 residents, including pregnant women, infants and children,” our leaders cried, to no avail.

      Comment by jack — August 1, 2016 @ 1:49 pm

  6. Vigi, you demonstrate no knowledge of the Incident Command System, and the effective all-risk planning that is in place. Simply put, the Emergency Services Director sets general control objectives for public safety, the environment and preserving property, but does not make operational, logistical, planning or specialized response decisions. Regardless of where the Emergency Services Director is located, the Incident Command will be established and the responders will provide for the community.

    You also demonstrate that you have no knowledge of history here in the Bay Area. Did you know that after the 1906 Earthquake, there was an immediate vote of no confidence for the bumbling Mayor of San Francisco, who was promptly removed from office and replaced with The Committee of Fifty. And here’s some trivia, my great Grandfather was an Alamedan then, and a member of the Committee of Fifty, appointed by Governor Pardee. My family left their house on Grand Avenue after the 1906 earthquake, my great Grandfather led a task force of Alameda volunteer firefighters and apparatus via the ferry to the fires of San Francisco. You see, after Alamedan’s figured out that the City Hall collapse wasn’t getting worse, they set out to help others. Perhaps your family sat on their butt here on the island, but mine rolled up their sleeves and fought the fire in San Francisco.

    Madam Mayor, and Vigi – the trained emergency responders got this, why don’t you go out front and offer emotional support to the community during the emergency – we’ll call you if we need you.

    Comment by Bart — August 1, 2016 @ 1:41 pm

    • Bart, if your family had a house on Grand Avenue, then it lived in Oakland. I live on Grand STREET. Your greatgrand-daddy may have known mine. Mine worked in SF; sheet-metal work.

      Comment by vigi — August 1, 2016 @ 7:40 pm

      • Good for you vigi, Bart’s as phony as a three dollar bill.

        Comment by Jack — August 1, 2016 @ 8:35 pm

      • 973 Grand – mine was the Chief Engineer for the Railroad.

        Comment by Bart — August 2, 2016 @ 8:18 am

        • No such address, Never has been, as far as I can tell. You know that address would be 2 blocks from my house, don’t you? Bart. Is your last name Simpson? (Thanks for tipping me off to this troll, Jack).
          Maybe Bart’s Alameda exists in a parallel universe…

          Comment by vigi — August 3, 2016 @ 9:15 am

  7. Bart, your family do anything besides close the windows during the 1981 chemical weapons assault?

    Comment by jack — August 1, 2016 @ 1:55 pm

  8. Comment by Jack's brain — August 1, 2016 @ 3:52 pm

  9. Bart, don’t worry about Jack’s or vigi’s comments no one pays much attention to them anyway they are 2 gnarly old farts. No one agrees with vigi pretty much on anything except Jack and vice a versa. Who cares they say you know your history better than they do.

    Comment by joelsf — August 3, 2016 @ 9:37 am

    • Friend of yours, eh joelsf?

      Comment by jack — August 3, 2016 @ 11:14 am

      • Jack, I don’t know Bart, but I have met you serveral times you just don’t seem to remember.

        Comment by joelsf — August 4, 2016 @ 7:32 am

        • Yeah, I do remember a young fart (you) at the Pasta Pelican several times when my niece Deb was bar-tending. Great deal on wine back then. Wonder if they still have ‘all you can drink for $10 happy hour’. Haven’t been there for ages. Rock Wall has a better deal,

          Comment by jack — August 4, 2016 @ 9:56 am

  10. I agree with MP and disagree with the “analysis” of Trish Spencer’s ally. (Why is he not named in your post, Lauren?)
    As the City Attorney correctly cited, the chain of command and respective designations are all in proper order according to the emergency plan and there City Charter.

    And don’t forget that we have highly trained, professional firefighters and police officers (not a volunteer fire department or sheriff’s posse) who train and prepare constantly for emergencies of all kinds. We also have city staffers from Public Works, Alameda municipal Power, and other city departments who will be on the front lines when disaster strikes.

    These are the people who will execute Even though their understaffed departments will be overwhelmed in a major disaster, they will be here and be on duty–ready, willing, and able to help our community stay here and survive. And when it does, I hope our Mayor and City Council members are all effective members of the response team, ready to lead our city in a real crisis.

    Comment by Jon Spangler — August 3, 2016 @ 9:38 am

  11. I’ve lived in cities which required emergency personnel to live in the city limits. When the Hayward fault decides to move, the odds of us being cut off by a flooded tube and wrecked bridges are decent. I think it would be a very good idea for Alameda to have same requirement.

    Comment by dave — August 3, 2016 @ 10:23 am

    • Alameda used to have such a requirement, dave. What are you, some kind of reactionary?

      Comment by vigi — August 3, 2016 @ 10:30 am

  12. Prior to 97 the City could rely on the Navy to help in cases of emergency, now they have the Point where citizens can rely on Spirits Alley and not worry about the emergency.that never happens.

    Comment by jack — August 3, 2016 @ 11:19 am

  13. Well at least if the the tubes were closed we wouldn’t have a traffic problem in the West End anymore. You just have to look at the good side of things. Right??

    Comment by John P. — August 4, 2016 @ 10:22 am


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