New: The City of Berkeley Illegally Paid $140k for Redistricting Lawsuit Against Itself and Residents (Public Comment)

Anthony Sanchez
Wednesday October 29, 2014 - 11:58:00 AM

When the City Council voted to sue its own City Clerk and residents earlier this year in its redistricting battle, the City illegally paid high-powered law firm REMCHO, JOHANSEN & PURCELL LLP $140,000 without Council’s approval.

Though City law allows the City Manager to execute contracts under $50,000 without Council authorization, any contract that exceeds that threshold must be publicly confirmed by a majority vote of City Council. So when City Manager Christine Daniel hired Remcho to sue the City before any public mention of a lawsuit, let alone a vote, she entered into the contract at $30,000. However, on April 30th, the contract was amended to $140,000 without any approval or disclosure.

Attached are the initial contract with Remcho, the final amended contract, the transcript from last evening’s Council Meeting where Christine Daniel confirms that contracts over $50,000 must be authorized by a vote of the Council, and an item adopted by Council that specifies the thresholds for contract authorizations.

The contract was only recently found by accident when Stefan Elgstrand, one of the residents sued, searched for the original contract and found that it was amended. 


This latest round of redistricting has been more contentious than previous rounds. 

In response to Council's decision to move ahead with a flawed map, an alternative was proposed that would have re-united many of the neighborhoods and balanced fraternities with other campus-area communities, while better accomplishing the publicly stated goals of Council. Instead, Council purposely ran out the clock to last possible meeting in December in order to ensure that its preferred gerrymander would be in place for the 2014 elections and to discourage any referendum -over 5,500 signatures would need to be gathered over the winter holidays when most residents and students are out of town (see Agenda here). 

In order to compel Council to reconsider and resolve redistricting in a fair manner in time for the 2014 elections, a referendum was initiated by a coalition of neighbors, students and community leaders. Despite Council's deliberate timing, however, 7,867 signatures were successfully gathered and submitted for verification on January 21, 2014 and later certified by the County on February 3. 

Under the City Charter, Council had the “duty” upon receipt of sufficient certified signatures to either rescind its redistricting map and adopt a compromise, or submit the disputed map to the voters at the next occurring election, which would have been June 2014. The map, until validated by the voters, would be stayed by law. 

But Council had different plans. 

During the referendum, the Mayor reportedly told a referendum proponent that “they are wasting their time. We'll just go to court and overrule you,” which is why Council had already began to secretly hire expensive, outside lawyers with taxpayer money on January 30 before any opportunity to even resolve redistricting -the referendum had not been verified yet (see pages 16 and 18 of the Remcho, Johansen & Purcell LLP contract).  

When the referendum came before Council on February 25, Council deliberately held it over to its next meeting on March 11, missing the deadline for the June ballot in violation of the Charter and enabling the lawsuit it had planned all along (see Olson, Hagel & Fishburn LLP letter). 

In addition to the Charter violation that enabled its lawsuit, Council also violated the Brown Act, an important open government law that requires that the public is adequately notified to ensure public participation in City business. By not informing the public on its agenda that it intended to delay redistricting to the November ballot and initiate a lawsuit, Council pulled the rug from under an unsuspecting public that was urging Council to adopt a compromise and bring a final end to redistricting (see First Amendment Coalition letter). 

Unfortunately, Council showed no interest in compromise and resolving redistricting -as had happened in 2001- but instead chose to prolong redistricting; Council took the unprecedented action of absurdly suing itself and residents who had supported the referendum in order to impose its disputed map this election through the Court -all due to the “crisis” Council purposely created itself. 

Worse, the lawsuit had a chilling effect: the secretly hired law firm sent threatening letters to citizens involved in the referendum that misleadingly described them as “Defendants” and insinuated liability simply for exercising their constitutional rights -many named proponents backed out and expressed hesitance towards getting involved again if it meant the City would sue them. While City Council had top-notch legal representation with taxpayer dollars, named residents had to fend for themselves -a student who was sued now has a $25,000 legal bill courtesy of City Council simply because he advocated for boundaries that respected Co-ops and united neighborhoods

Ultimately, the Court agreed that, though the City had questionably delayed its action, it had no choice but to implement its disputed map, despite the constitutional right to a stay of law and the array of alternative maps available, because of one reason: the City Charter was amended to specify that an affirmative vote by Council is an indispensable criteria for a valid redistricting map (see ruling). Measure R of 2012 had come full circle. 

In the end, the City illegally paid its high-priced lawyers Remcho $140,000 in taxpayer dollars in excess of its initial $30,000 contract. 


For the full background, complete with documentation, please visit: http://stopthegerrymander.nationbuilder.com/background