Oakland’s City Attorney made a last minute change to the City Council agenda before Tuesday, April 30, 2019 Council meeting, altering the title of—and adding content to—a proposed resolution giving the Oakland Police Commission control to hire and fire its Inspector General. The change to the title of the agenda item and addition of an alternate resolution, was made by the City Attorney’s office late Thursday, April 25, 2019, after the regular Rules Committee meeting for the day was canceled due to lack of quorum, and without contacting the Rules Committee Chair. After the change, the title of the item on the agenda reflected the City Attorney’s own proposed legislation in the agenda package—a resolution that bolstered the City Administrator’s continued control over the Inspector General position.
The last minute change was yet another salvo in the now years-long battle over Police Commission independence. And the last minute change was also not the only intervention by the City Attorney against Council President Rebecca Kaplan resolution. Chief Assistant City Attorney, Doryanna Moreno tabled the original resolution when Kaplan introduced it on April 11 Rules Committee Meeting, claiming that it needed to be vetted by the City Attorney’s Office. Kaplan’s original version of the resolution also contained direction for the City Attorney’s office to cease interfering with the hiring of the Commission’s legal counsel. After a week-long pause, the resolution was again introduced at the April 18 Rules Committee meeting, this time with less pointed language for the City Administrator and no mention of the City Attorney or Commission Legal Counsel. At that time, Kaplan’s resolution was scheduled to the April 30 full council meeting—10 days before the council meeting as is required by law.
The City Attorney’s changes are allowed under the Oakland Sunshine Ordinance which permits an agenda to be changed within 72-hours of a council meeting if the Attorney has information that affects an agenda item [2.20.080 b3]. The language of the Sunshine ordinance, however, suggests that with the title change, the City Attorney may also have sought to effectively switch the resolution to be considered by Council to the City Attorney’s version. Section B4 of the Sunshine ordinance allows for a change in the title of an item to “[...]clarify or conform the agenda title to accurately reflect the nature of the action to be taken on the agenda item”.
The changes seem to have been rushed Thursday evening to fit within the 72-hour framework according to the date stamps on the documents—the City Attorney's document package was posted to the City Clerk at 5:41 pm on Thursday. The City Attorney’s ‘independent’ legal opinion memo from Remcho, Johansen and Purcell is dated the same day, April 25, 2019.
Before the April 25 change, the title of Kaplan’s item read:
"Adopt a Resolution Directing The City Administrator To Proceed with The Job Description For The Position of Inspector General, As Approved By The Police Commission."
But the version of the item title that appeared on the City Council agenda for April 30, 2019 was effectively for the opposite intent:
"Adopt A Resolution Requesting That The City Administrator Expedite The Process To Obtain Civil Service Board Approval Of And Post The Job Description For The Position Of Inspector General To Support The Police Commission And Bring A Report To The Council Regarding The Anticipated Time Frame"
It’s worth noting that the City Attorney’s proposal would have only obligated the City Administrator to facilitate its own office’s control of the position, effectively doing little more than obligating the City Administrator to give council a timeline for the hire of the position.
Several questions remain unanswered. Since the Attorney’s office had already vetted and released the language of the original proposal on April 18, why did Remcho et all, add another opinion at the last possible moment? And why did the City Attorney okay the language of the resolution for April 18 Rules, only to so extensively undermine it out of the public sphere? These questions are relevant. Though Kaplan’s proposal did pass with five votes--effectively obligating the City Administrator to allow Commission's hiring of the IG--the issue of the Commission’s private legal counsel is still outstanding, and the City Attorney continues to oppose it. Moreover, there’s a strong possibility the City Administrator will continue to block the hiring of the IG, with perhaps more cover from the City Attorney.