Blogging Bayport Alameda

August 5, 2019

Under the influence

Filed under: Alameda — Lauren Do @ 6:05 am

Can we talk a little about the language used in the Charter at issue in the whole Blah Blah-gate business?  The language, I’ll point out, that the independent investigator said was super vague and probably should be changed or made clearer somehow.

Here is it:

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. Except for purposes of inquiry, the Council and its members shall deal with that portion of the administrative service for which the City Manager is responsible solely through him or her. An attempt by a Councilmember to influence the City Manager in the making of any appointment or the purchase of any materials or supplies shall subject such Councilmember to removal from office for malfeasance.

Let’s break this down shall we:

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.

A general reading of this is that the Council shouldn’t try to micromanage the City Manager.  But, look, it happens ALL OF THE TIME.  If you want to point to a charter rule that has been repeatedly violated year after year after year it would be this one.   Now if we want to parse more carefully, I guess we need a definition of what “interfere” really means.  A quick review of Black’s Law Dictionary doesn’t reveal much other than a definition specifically for patent law.  Maybe the definition should be expanded to understand what “interfere with the execution” actually means.

Also, does this mean that any violation in this section has the remedy of removal from office or is it just the last sentence.  See how subjective and open to interpretation this all is?  So does a violation of this sentence open a City Councilmember to removal?  I don’t know and you don’t know either because no one knows the intent of this section from the drafters of the charter.

Next:

Except for purposes of inquiry, the Council and its members shall deal with that portion of the administrative service for which the City Manager is responsible solely through him or her.

This sentence is better because it describes the working relationship between the City Council and the day to day operations.  I read this as City Council can ask questions of other City Staff but not boss them around.  That’s the job of the City Manager.

Now the last sentence, this is the clear as mud portion:

An attempt by a Councilmember to influence the City Manager in the making of any appointment or the purchase of any materials or supplies shall subject such Councilmember to removal from office for malfeasance.

As with the first sentence, we need a definition of what “influence” entails.  Black’s legal dictionary lends no help at all since the reference to influence includes the modifier “undue” which would have been super helpful in this case because we’d have a legal definition to fall back on.  “Undue influence” is defined as:

In regard to the making of a will and other such matters, undue influence is persuasion carried to the point of overpowering the will, or such a control over the person in question as prevents him from acting intelligently, understanding^’, and voluntarily, and in effect destroys his, and constrains him to do what he would not have done if such control had not been exercised. See Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. SS5; Bennett v. Bennett, 50 N. J. Eq. 439, 20 Atl. 573: Francis v. Wilkinson, 147 111. 370, 35 N. E. 150; Conley v. Nailer, 118 U. S. 127, 0 Sup. Ct. 1001, 30 L. Ed. 112; Marx v. Mcglynn, 88 N. Y. 370; In re Hogan’s Estate, 195 Pa. 2S2. 45 Atl. 729: Mooney v. Olsen, 22 Kan. 79; In re Black’s Estate, Myr. Prob. (Cal.) 31. Undue influence consists (1) in the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority, for the purpose of obtaining an unfair advantage over him; (2) in taking an unfair advantage of another’s weakness of mind; or (3) in taking a grossly oppressive and unfair advantage of another’s necessities or distress. Civ. Code Dak.

The argument could be made that “undue influence” was asserted over the then-City Manager but I think that it would be a stretch considering this was a person who had been in a position where she had experience with elected officials previously.  Additionally the whole decision to make a secret recording would definitely show that there was not enough “persuasion carried to the point of overpowering” that rendered the former City Manager from “acting intelligently, understanding.”

There’s also a definition in Black’s for “improper influence“:

This means to bring undue pressure upon a person to try to get them to do something that they wouldn’t normally do.

But this goes back to the whole “undue” language which is an important modifier.

Anyway, since the term “influence” is super vague and could define a whole lot of behavior from the benign to the serious, it’s hard to hold up this particular section of the charter and deem it infallible.

We, as a community, need to decide what specific actions we do not want the City Council to take against the City Manager and then codify that language rather than attempt to shoehorn into a truly terribly written and inconclusive Charter section actions that we find problematic probably made more problematic by the politics of the people involved.  (It’s okay to admit your outrage level may be proportionate to how much you dislike that person’s politics.)

For example, is holding a meeting with the City Manager on any topic considered “influence”?

Or is writing an email with you opinion to the City Manager considered “influence”?

Is talking on the phone to the City Manager considered “influence”?

Is asking the City Manager to look into a specific topic “influence”?

Is asking for the opinion of the City Manager on an issue “influence”?

Is saying you like the work product of an individual staff person “influence”?

And so on and so forth.

The only thing that we know could rise to the level of “influence” was writing a recommendation letter on City letterhead.  What if the letter was on personal stationary?  What if it was in email form?   What if it was a text message?

Anyone who pronounces the issue to be so clear cut is trying to simplify an issue which is not that simple.  Language is fluid and when intentions are not made clear it is up to interpretation.  The only way to move past this is to literally just move past this.  Clean up the charter language so that it is super specific as to what actions are so egregious that it requires removal from office.  Rehashing and rehashing the issue isn’t going to solve the problem.  It’s not going to clarify the charter language.  It’s simply being used to further petty (and you know I love petty) political squabbles.  If that’s the goal, okay, whatever.  I can respect that level of honesty.  But if we’re looking to ensure that there is not malfeasance among our elected officials then we need to provide a detailed road map of what not to do rather than play some shitty gotcha game after the fact.

The TL;dr of this post: words are tricky and ascribing legal meaning where there may or not be any is unhelpful in the larger we want Alameda to be awesome context.

4 Comments »

  1. You are leaving out a most important passage from the independent investigator’s (Jenkins) report. While the charter may be vague in some ways, on this point it is not:

    “But the City Charter is abundantly clear that councilmembers may not promote a particular candidate; such activity is unequivocally attempting to influence an appointment decision.” (Jenkins).

    That is not “super vague” at all.

    And that is what happened here:

    “55 minutes of pressure to hire the labor candidate and appease the labor leader” (Grand Jury summary of the tape recording)

    Comment by MP — August 5, 2019 @ 6:18 am

  2. Does this post constitute a “re-hashing” of the issue: “…this was a person who had been in a position where she had experience with elected officials previously….”; “….the whole decision to make a secret recording would definitely show…..”

    Discussing changes to the City Charter (without proposing or suggesting any such changes) is fine, but one notes that a primary defensive strategy asserted all along here has been to focus attention on the Charter not on the conduct in question.

    On balance, I’d call it a rehashing.

    And rehashing is fine, and not necessarily a “!@#$…game”, particularly when the councilmembers in question, or at least one of them, has publicly challenged in multiple ways the Grand Jury report that concluded that the councilmembers violated the charter.

    Surely, the point can’t be that everyone should move on, except those wanting to take shots at the Grand Jury.

    And if we are going to propose super specific express prohibitions for possible insertion into the Charter, it might be instructive for those delegated with that task by the City Council to listen to the tape. It might give them an idea of the types of communications to expressly prohibit.

    Comment by MP — August 5, 2019 @ 7:20 am

  3. The intent of the prohibition against influencing hiring and purchasing decisions is pretty clear: to keep the playing field level and not give special treatment to politically connected interests. The need for it was certainly confirmed by the current dust-up.

    Comment by Allan Mann — August 5, 2019 @ 8:26 am

  4. Help me out with a definition here. Is threatening another Raymond Zack incident if your guy doesn’t get hired an example of “improper” influence or “undue” influence?

    Comment by dave — August 5, 2019 @ 10:06 am


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