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:
- Control and direct the effort of this emergency organization for the accomplishment of the purposes of this ordinance (Sec. 2-24.6a(3))
- 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))
- 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)
- 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.