On September 26, the North Hills Community Association sent several questions to candidates for Oakland City Attorney. We are sharing their responses to help inform the public on candidates’ positions.
Dear City Attorney candidates:
We know you are very busy and that ballots will be arriving in people’s mailboxes during the week of October 5. We wanted to ask you some questions that are particular to our constituency—the 3,5000 households of the North Hills Community Association, Beat 13Y of the city of Oakland. We’ve kept them short. We would appreciate your responding no later than by Noon on Friday, October 2, so that we can circulate them to our members and post on our website as quickly as possible:
- How would you define the role of the City Attorney?
- Opponent—what would you do differently as City Attorney? What challenges do you foresee in the next 4 years and how would you handle them?
- Incumbent—what challenges do you foresee in the next 4 years and how would you handle them?
From Candidate Eli Ferran:
- How would you define the role of the City Attorney?
- The City Attorney is the chief counsel of the city, advising elected officials and departments, defends the city, and enforces the municipal code. This means efficiently processing the City’s business so that City Council can pass meaningful legislation and the administration can deliver the services constituents deserve. Too often many basic city functions are bottlenecked at the City Attorney’s Office (CAO) waiting to be read on someone’s desk which can cost from weeks to months while trash piles up on our streets and life threatening nuisances go unaddressed.
- Opponent—what would you do differently as City Attorney? What challenges do you foresee in the next 4 years and how would you handle them?
- Over the next 4 years we must confront the crisis of incoming evictions, displacement, lack of housing, police accountability, and budget shortfalls. For too long the CAO has been reactive instead of proactive all while limiting it’s contact with the community. I will focus on bringing the CAO back into each neighborhood to hear your needs directly so we can faithfully prioritize what people need. I will aggressively enforce City Council’s policies and provide recommendations rather than attempt to become another legislator.
From Candidate Barbara Parker:
- How would you define the role of the City Attorney?
- The role, powers and duties of the City Attorney are multi-faceted and complex. It is critical that the City Attorney have the experience and expertise to perform this important role.
- I am the only candidate in the race who has a proven record of (1) efficiently and effectively running a department with 80 employees and an annual budget of more than $20 million,(2) successfully defending the City in a multitude of actions, (3) pursuing actions that have brought in millions for Oakland and our residents, and (4) providing top notch legal advice and counsel on creation of innovative laws and policies, drafting and negotiating agreements, and providing other legal advice on myriad issues.
- My role is to provide the best legal advice and counsel and defense in litigation when needed and to do so with integrity and consistent with sound ethical principles as the City addresses important issues on a daily basis. As City Attorney I help City navigate these issues and avoid legal pitfalls that could impact our residents’ hard-earned money. My record shows that I have done so during my 9-year tenure as City Attorney.
- My work is informed by my more than 40 years as a litigator and legal advisor. I have been a public servant for Oakland for 29 years. I worked my way up in the office beginning as a senior staff attorney, then serving as a supervising attorney of the Labor & Employment Unit, next I served as Chief Assistant City Attorney (second in command) for ten years before becoming City Attorney. Prior to joining the City, I practiced law for 15 years, 5 as an Assistant U.S. Attorney and 10 years with two major law firms and two major corporations.
- The City Attorney’s powers and duties are outlined in the City Charter (See Charter section 401(6)).
- The City Attorney is the sole attorney for the City of Oakland which is a municipal corporation; and that corporation generally speaks through the City’s elected officials and through the community leaders and members and organizations. Exceptions must be expressly authorized in the City Charter. The Port Department currently is the only exception as the Charter establishes a Port Attorney to advise that department.
- The City Attorney has the following charter mandated duties:
- Legal advisor to all boards, commissions, departments, elected and appointed officials in their official capacities, except the Port Department
- Provide legal opinions to elected officials, boards, commissions upon their request
- Review and approve all contracts as to form and legality before they are executed
- Draft and/or review ordinances, resolutions, procedures policies and
- Defend the City when it is sued
- Act as counsel to officials, employees, agencies, boards, and commissions in their official capacities when they are sued
- Must obtain Council’s approval to settle or dismiss lawsuits and claims against the City or brought on behalf of the City for more than $25,000
- File and prosecute lawsuits on behalf of the City when authorized or ratified by the Council
- Assert and maintain the attorney-client privilege
- Retain experts and outside counsel for matters
- Administer the City Attorney’s Office and hire, fire, promote all members of the Office, subject to civil service rules, union contract terms and due process principles that are applicable to the position.
- In addition to her Charter mandated duties, the City Attorney has independent authority under certain state laws to bring actions on behalf of the People of the State of California. For example, after 20 years of hard fought litigation, the Oakland City Attorney and a number of other cities and counties settled their ground-breaking lead paint case on behalf of the People of the State of California for $305 Million against lead paint manufacturers who were responsible for promoting lead paint for use in homes despite their knowledge that the product was highly toxic, especially to children.
- Notably, the City Attorney is a legal advisor. The City Attorney does not make policy decisions or project determinations, nor does the City Attorney have authority to direct any City staff outside of the City Attorney’s Office.
- The City Attorney works closely with the Mayor, Councilmembers, City Administrator and provides legal advice as well as options and alternatives to accomplish goals in a legally permissible manner.
- The challenger has stated that the City Attorney is responsible for the City’s failure to reach compliance with the Negotiated Settlement Agreement in Delphine Allen v. City of Oakland which has been under court oversight for approximately 17 years. Allen is a civil rights, police brutality case involving false testimony, planting evidence and excessive use of force. Allen was settled in 2003 with the City agreeing to make a number of reforms to its police policies and procedures under federal court oversight. (To be clear, the City Attorney does not have the power alone to bring the City into compliance as the City Attorney does not make policy decisions, nor does the City Attorney direct the OPD or Police Chief. ) The City Attorney has worked diligently as advisor to the OPD, Mayor, Council and City Administrator; and our office has dedicated a team of 4 attorneys to advise OPD on policies, procedures, and investigation of complaints.
- The challenger has repeatedly stated that my office’s handling of police arbitrations has been negligent and flawed. He points to a 2015 Swanson report that was issued by the federal court’s investigator
- In 2014 before the investigator commenced his formal investigation, I learned of deficiencies in the handling of these important arbitrations. I reorganized the office, removing from top to bottom the attorneys who oversaw, supervised, and handled the arbitrations. I established a Labor & Employment Division and hired an attorney to head that division.
- The second Swanson report (2016) acknowledged our work and the improvements
- For the past 5 years, neither the court nor the investigator has raised concerns about our handling of arbitrations and the advice we provide to OPD. The monitor/compliance director regular reports have not raised issues or concerns about our Office’s advice or handling of arbitrations
- The challenger has asserted that the City Attorney is not in the community
- This is false. Our community-oriented Neighborhood Law Corps works hand-in-hand with the community and uses the community’s input and input from Councilmembers in deciding priorities for our lawsuits.
- I also have an open-door policy
- The challenger asserted that we spend too much on outside counsel and cases take too long to resolve.
- We justly resolved nearly 3/4ths of claims and nearly 2/3rds of lawsuits for ZERO dollars
- We have maintained approximately the same level of outside counsel expenses for years with the exception of a few extraordinary cases like the Ghostship Fire litigation and the Failure of the 23rd Avenue Overpass.
- For the past 20 years we have published an annual report that is posted on our website (org) which provides financial information and comparative data. That report shows our effectiveness and consistency.
- The challenger has stated that he will “enforce” and make sure a number of problems are resolved, such as illegal dumping, upholding police discipline, going after liens 4
- The City Attorney does not have administrative “enforcement” authority.
- With illegal dumping the departments issue notices and gather evidence. Our office brings actions in court when there is evidence identifying the perpetrator and witnesses are willing to testify. We have brought such lawsuits. Unfortunately, often witnesses are reluctant to testify or the evidence is not sufficient to id the perpetrator.
- The placement of liens on private property is done administratively by departments. Some liens are placed on the county tax rolls and foreclosure is permitted after a number of years.
- As noted above our record on police discipline has been very solid for the past 5 years. However, despite the challenger’s claim, no City Attorney can guarantee that all discipline will be upheld as the challenger suggested. The decisions are made by independent arbitrators after hearings and presentation of evidence.During the candidate forums, the challenger has made statements that are not accurate regarding the City Attorney’s role and powers.
2. Incumbent—what challenges do you foresee in the next 4 years and how would you handle them?
The challenges that I foresee in the next 4 years are:
- Preserving City Services and Jobs and Providing for Employee Health and Safety in Light of the COVID-Pandemic – The pandemic and the economic havoc and economic crisis it has wrought due to the colossal mismanagement by the current occupant of the White House is one of the greatest challenges we are facing and will continue to grapple with for the next 4 years. The recession will become another Great Depression if we do not anticipate and plan for the future. My first order of business is to protect our team’s health and safety during the COVID-19 pandemic as we shelter in place and, in collaboration with our team, to continue designing an environment that prioritizes the health and wellbeing of employees and their families. To ease our valued employees’ minds and reduce stress, I announced that regardless of whether the rest of City opens its doors, we will not bring our employees back to the office until they can be safe. In my view that will not be until there is a treatment or vaccine for COVID-19. This is a new frontier, and we are working on a daily basis to improve the process by which our employees work remotely. We have purchased computers and provided the other equipment that all our employees need to work remotely and provide the critical legal advice and counsel that is needed daily. I have reached out to all of our employees for their ideas, concerns, and other input and look forward to working with unions during this process.
- Second, I anticipate that the pandemic will usher in long term changes to the way our Office and the City as a whole deliver services, using more remote working tools and arrangements; and also potentially reducing the number of days/hours that workers are physically in the office. Developing the best way to provide excellent service and customer services in this new environment within our office and working with the City Administration to address these issues is one of my top priorities, including protecting City services, jobs, fair and just salaries, benefits, defined benefit pensions and union representation. It is self-evident that we will not be able to return to business as usual after a treatment and/or vaccine have been tested and administered broadly. Many small businesses will not survive and the new way of working remotely will continue to be a part of the work-a-day world impacting many of the restaurants and other services that rely upon the traffic of workers. I also am gravely concerned that the trend that had already begun of increasing the number of contractors and reducing or eliminating employment with protections such as sick leave, living wages and providing health, dental, and retirement benefits and maintaining social security will continue due to the loss of revenues. There also will be challenges in determining how to prioritize and maintain services and the jobs necessary to provide City services. This is a monumental challenge, and I do not have the solution. However, I volunteered and will be a participant in the City Administrator’s think tank as we plan for the future and make the decisions, hopefully in partnership with a new federal administration to address these issues which have nationwide and worldwide impacts. I support a Marshall Plan type program that will provide jobs for people to repair our infrastructure and shift our economy to green jobs and provide solid training and education.
- Addressing Racial Injustice/Police Reform/Seeking Equity – I believe one of our greatest challenges during the next 4 years is to address racial injustice, police reform and secure equity. The Black Lives Matter movement and the recent fatal police actions that resulted in the deaths of George Floyd, Breonna Taylor and so many others have sparked a national reckoning and created a moment that we must seize to address the legacy of slavery, followed by Jim Crow and legalized discrimination that ended in the 1960s with the passage of the 1964 Civil Rights Act, the 1968 Fair Housing Act and other pieces of landmark legislation that changed the legal landscape of our country. However, systemic racism permeates our culture. I believe that Oakland can be a leader in this work. I am personally working with the teams in the City that are reimagining policing. As City Attorney our office can be helpful in advising on options and impediments. Diversifying the police ranks, providing ongoing training, accountability for officers and supervisors, revising and implementing new policies and procedures and identifying services that should be performed by personnel trained to address mentally ill persons, and personnel trained to de-escalate tensions (e.g. Ceasefire). The Council’s October 6th unanimous passage of a resolution mandating immediate implementation of the Slavery Era Disclosure Ordinance also will be helpful. I crafted and co-sponsored that resolution with Vice Mayor Reid and Councilmember Taylor. We have not had a truth and reconciliation process in this country for African enslavement along the lines of the process in South Africa to acknowledge the atrocities and address the theft of property and assets and profits of the descendants of enslaved Africans. This process would promote healing and the ordinance requires disclosure of ties to slavery by certain city contractors and establishes a voluntary fund that can be used to address economic and educationally depressed areas of the City. Police reform, reimagining the police, addressing the huge gap in wealth and educational opportunity are monumental challenges. But I believe we have the opportunity to make significant strides in this regard and to heal our nation. The COVID-pandemic and its aftermath will strain resources in this regard as well.
- Providing Top Notch Advice and Counsel and Serving as Watchdog for Open and Fair Government – Given the strain on our resources as a result of the global pandemic, another major challenge during the next 4 years will be to continue to I will continue to ensure that the office provides the City with the best possible legal advice and counsel, the best possible legal defense when needed, and fair and just settlements. Making sure the office has a reputation within the City for doing excellent work and saving the City money is one of the most important things I can do to help ensure job security and maintain and expand City services. The expertise and excellence of our advice and counsel impact the City’s budget and every aspect of City services, whether we are responding to the COVID-19 pandemic, standing up to Trump’s threats to illegally deploy federal troops to Oakland, crafting tenant protection laws, helping craft local emergency paid sick leave and right-to recall laws, or helping find ways to address the housing crisis and the needs of our unsheltered neighbors. We have resolved nearly 3/4ths of claims and nearly 2/3rds of lawsuits for ZERO dollars, protecting City resources that provide essential services and the jobs of workers who deliver those services. Because we have a charter mandated duty to provide the services that I outlined in response to the first question, we will need to persuade the Council to maintain and perhaps expand our in-house attorneys and support staff. If our office suffers budget cuts, we will need to retain more expensive and less efficient outside counsel to perform work. In other words, cutting our staff will not save the City money because we don’t have the option not to defend the City when it is sued or not to provide legal advice and opinions when requested or to decline to review contracts for form and legality. I have successfully convinced Mayor after Mayor and council after council and city administrator after city administrator to maintain our staff and to add some new positions. These increases speak volumes about the Council’s, Mayor’s and City Administrator’s confidence in and respect for our office under my leadership. However, we lost more than 1/3 of our staff from 2003-2013 due to budget cuts during the Great Recession. I also have worked hard to secure millions of dollars with our affirmative lawsuits which can help to maintain City services and jobs. I plan to expand and continue our affirmative litigation work and lawsuits. In 2016 I established the Affirmative Litigation Division to prioritize bringing groundbreaking lawsuits and to protect and advance the rights of all Oaklanders. I recently launched the Housing Justice Initiative to focus on preserving the Oakland we love, its diversity in terms of race, professions, sexual orientation, and incomes, by enforcing laws protecting the rights of and homes of Oakland tenants. The Affirmative Litigation Division is home to our Neighborhood Law Corps and Community Lawyering and Civil Rights Unit. We have enforced Oakland’s progressive laws, such the Tenant Protection Ordinance that I co-sponsored, the Minimum Wage and Sick Leave Ordinance, the EQUAL Ordinance which prohibits discrimination against and consideration of federal assistance (e.g. Section 8) in rental housing. We continue to prosecute landmark lawsuits, such as our climate-change lawsuit against the Big Oil companies to hold them accountable for the billions of dollars necessary to protect Oakland from sea level rise caused by their massive production of fossil fuels; our lawsuit to prevent the handling and storage of coal at the former Oakland Army Base; and our lawsuit against Wells Fargo for predatory and discriminatory mortgage lending practices against African American and Latinx borrowers. Our lawsuits have shut down 25 human traffickers who masqueraded as massage parlors, shut down a business that was blowing toxic dust from its operations into nearby storm drains and residences, and protected and compensated numerous tenants victimized by abusive landlords, preserving their housing and preventing their departure from Oakland or homelessness. We have secured more than $1M from our lawsuits that we are using to hire additional staff to bring more of these important lawsuits. 8 The San Francisco Foundation has recognized the importance of our Housing Justice Initiative by awarding two grants to support our work.