Editorials

It’s possible that democratic government as we’ve known it is on its way to becoming an endangered species in the United States of America, a richly endowed country that’s only managed to sustain itself for less than a quarter of a millennium so far. In Washington scoundrels of all descriptions, with Albert Gonzales the most prominent but by no means the only example, frolic with impunity in what used to be known as the federal government. While Gonzales has been busy dismantling the Justice Department, his allies have severely damaged the Food and Drug Administration and the Environmental Protection Agency, to name just two victim agencies. What’s remarkable is that no so-called expose by the press or even by congressional committees of the massive mischief of the Bush administration has made much difference. In a May 14 New Yorker piece that became an instant classic, George Packer asked: “Why has it become impossible to admit a mistake in Washington and accept the consequences?”  

Even in Berkeley, mistakes no longer seem to have consequences. A succession of city councils from both or all of the putative factions which have vied for control of City Hall, aided and abetted by a string of city managers with very different public personas, have managed to ignore the ongoing shenanigans in the Berkeley Housing Authority, unchecked by a U.S. Department of Housing and Urban Development which has seen plenty of its own scandals in the last forty years or so. The one person who’s been on the scene the whole time, City-Attorney-for-Life Manuela Albuquerque, has issued a memo blaming everyone else in sight for everything that’s gone wrong, and all because her legal advice has always been ignored by those in power. She’s been on the job for more than 25 years, and one would think that she would have resigned after being dissed by management for 15 years or so, but evidently it’s finally getting to her. Unless, of course, the major problems finally surfacing started because her advice has usually been taken, and it’s usually poor. But in Berkeley, as in Washington, don’t look for anyone to admit their mistakes. 

Meanwhile, at its meeting last week the Berkeley City Council was its usual dysfunctional self. There were three major topics which the council should really have discussed in depth, but they all got short shrift in the rush to judgment. The mayor, like some of his colleagues now an affluent retiree, seemed eager to start his two-month summer vacation, usually devoted to world touring.  

The keys to the Housing Authority were turned over to a new set of hands without much ceremony except for a ritual sacrifice of guilty and innocent employees alike. Then a few minutes were devoted to a pro forma allocation of $50,000, presumably chump change in the city budget these days, to pay for an employee to draft a largely data-free implementation of the mayor’s pet program, the one designed to get the ugly poor folks out of the shopping districts.  

The poor folks and their friends protested, the shopping districts and their friends applauded, and it was all over in a hot minute. Councilmember Maio (the most reliable fourth vote on council) shed a few tears, perhaps crocodile, but that was all. If the city attorney has misadvised the council on the constitutional implications of this measure, as she did on an earlier version several years ago, we’ll just have to find out about it in court, to the tune of many hundreds of thousands of dollars more, as we did the last time. 

The smoke-screen over the council action was so successful, nevertheless, that the city’s new press officer felt obliged to issue a lengthy disclaimer later in the week regarding “the inaccuracies that have been reported in the last several days...While no new laws [emphasis sic] were passed Tuesday, the council’s action showed a clear determination to have a comprehensive approach to providing care to people who need it and a safe and comfortable street scene for everyone.” Unh-hunh.  

This was presumably aimed at correcting a triumphal communication earlier the same day from Kitchen Democracy, which claimed in an e-mail to its members that “On June 12, the Berkeley City Council voted to pass the mayor’s ‘Public Commons for Everyone Initiative.’” KD members, all users of high-speed Internet connections and none of them homeless, had endorsed the mayor’s plan, 251-30, and that’s what counts, legalities to the contrary not withstanding.  

The KD endorsement also figured prominently in another council non-action. In a bit of byplay that even experienced council observers found hard to follow, the majority of voting councilmembers asked to have a public hearing on a sizable project now planned for the city’s commercial gateway at Ashby and College, but they lost out because Wozniak, the councilmember for the affected district, had been lobbying for the project from its earliest days on the KD website. On the advice of the city attorney (she’s popping up everywhere these days) he managed to duck the vote (thus possibly avoiding offending his constituents among a number of nearby Elmwood residents who oppose the plan.) Capitelli also ducked on her advice, because he has Elmwood real estate interests. Without the numeric possibility of five votes from the nine-member council the hearing was automatically defeated, even though it got a majority of the votes of those allowed to vote.  

Did you follow that? Probably not. 

The sad circumstance here is that the Elmwood commercial district had pioneered an ordinance, the Neighborhood Commercial Preservation Ordinance, aimed at preserving neighborhood-serving shopping districts, but the variances granted by the Zoning Adjustments Board for this project simply ignored it. The pros and cons of this particular building or of the bar proposed for it are not terrifically important to the city as a whole, but the policy implication of the Zoning Adjustments Board’s decision for the future of sustainable retail within walking distance of homes deserves a full airing at the council level.  

Once again specious advice from the city attorney has been allowed to choke off necessary public debate in Berkeley. The Planet got an irate e-mail from an experienced local attorney because we inadvertently said that the city attorney had “ruled” on the question. Of course he’s completely right: Despite popular misuse of the term, city attorneys don’t “rule” on anything, they just issue opinions, and they’re often wrong.  

But 25 years of what might be called misrule by the current Berkeley city attorney have conditioned councilmembers to take her word as law. Our correspondent’s view of what happens: 

“Manuela’s legal opinions, although mostly unwritten, are like an addiction. She hooks city councilmembers, who don’t even know they are being manipulated by only listening to her views. This includes incorrect, even absurd legal views, plus intrusions into the realm of policy.” He gave as one example the mumbo-jumbo surrounding the city’s secret settlement of the lawsuit over the university’s long-term development plans, which has produced another lawsuit against the city. He suggests that all of the city attorney’s opinions (not her “rulings”) should be in writing, and that councilmembers should be authorized to get a second opinion at city expense if they want one. An easier course might be to find a new city attorney who knows the difference between legal advice and management decisions, which the current incumbent in the office appears to have forgotten.