On March 22, 2023, Oakland City Attorney Barbara Parker wrote and issued “Public Legal Opinion – Mayor Thao’s Authority to Terminate or Remove Police Chief”(link here). A regular reader sent a copy to Zennie62Media, and after reading what the City Attorney released, then reviewing the City Charter and also relevant cases and the California Government Code, I wrote what you’re about to read, below. I also sent my response to a small group of friends and associates.
I then received an email response from Robert Harris, a long time and legendary Oaklander who gained fame as a lawyer for Pacific Gas and Electric Company. This is what he wrote:
I must admit that I agree with the “legal analysis” of Zennie Abraham rather than with that of our City Attorney whose opinion does not seem to be supported by the Charter and the law. All are invited to read carefully Zennie’s “legal analysis” which makes far more sense than that of the City Attorney’s. Obviously, the City Attorney is not going to reply to this analysis, but at some point, a court will have to resolve this issue.
Bob
Hi Barbara,
I hope this email finds you well. This is Zennie Abraham, reaching out to you, and in part from my place as CEO of Zennie62Media, Inc., but also from my position as an Oakland resident in Adams Point (hence my non-corporate email). Barbara, we, you and I, have known each other for many years and going back to my time serving as Economic Advisor to Oakland Mayor Elihu Harris from 1996 to 1999 and then heading Oakland’s bid to host the 2005 Super Bowl (the fact that Jacksonville won on the 3rd ballot angers me to this day, but the NFL has been good to me, so that makes up for some of the pain, though not the whole.). So, what I am about to present is from a strictly professional perspective, and should not be used to gloss over the tremendous love and respect I have for you as a person and as a friend. With that said, I will continue.
I am the one who blogged that Mayor Thao acted illegally in firing Oakland Police Chief LeRonne Armstrong in the way she elected to do: a lone wolf fashion, without the presence of the City Administrator. There’s no section of the Oakland City Charter that gives her clear authority by pure language to do that. None. Barbara, you know this. And it is because you know that, that I am shocked that you would refer to Oakland CityCharter sections 503 and 604(b)10) as providing the Mayor of Oakland with the power to remove the Oakland Police Chief. They do not do that.
Answer this question: if the Mayor has the power to remove the Oakland Police Chief, then that power should be stated in the Oakland City Charter Section on the Mayor of Oakland’s Powers, right? Section 305. Functions, Powers and Duties. So, why did you not look at that, my friend? What does Section 305. Functions, Powers and Duties read? It reads as follows:
Section 305. Functions, Powers and Duties. The Mayor shall be the chief elective officer of the City, responsible for providing leadership and taking issues to the people and marshalling public interest in and support for municipal activity. The Mayor shall have the following powers, duties, and responsibilities:
(a) The Mayor shall be responsible for the submission of an annual budget to the Council which shall be prepared by the City Administrator under the direction of the Mayor and Council. The Mayor shall, at the time of the submission of the budget, submit a general statement of the conditions of the affairs of the City, the goals of the administration, and recommendations of such measures as he may deem expedient and proper to accomplish such goals.
(b) Recommend to the Council such measures and legislation as he deems necessary and to make such other recommendations to the Council concerning the affairs of the City as he finds desirable.
(c) Encourage programs for the physical, economic, social and cultural development of the City.
(d) Actively promote economic development to broaden and strengthen the commercial and employment base of the City.
(e) Appoint the City Administrator, subject to confirmation by the City Council, remove the City Administrator and give direction to the City Administrator. The Mayor shall advise the Council before removing the City Administrator.
(f) Serve as ceremonial head of the City.
(g) Represent the City in inter-governmental relations as directed by the Council.
(h)Provide community leadership.
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Note that there is only one person that the Mayor appoints and removes: The Oakland City Administrator, and that is that. Barbara, you reached for the case of Diamond Intl vs Boas to back your claim. In that court battle where the SF CAO challenged the authority of the Registrar of Voters, you wrote: “Specific provisions in a municipal charter control over general ones “and the general and special provisions operate together, neither working the repeal of the other.” But you forgot the dissenting opinion, which specifically points to my concern over your own actions in backing Mayor Thao, and reads this way: “The majority opinion deems it unnecessary to decide that question, but in my view, however convoluted its exegesis, it can only be read as approving the illegal actions of the chief administrative officer in flouting the plainly expressed legislative purpose of section 3.201 of the charter”. You have done that here.
I don’t know about you Barbara, but I remember why Jerry Brown designed the Oakland Strong Mayor law we have today: so he would not have to deal with the normal civilians on the Oakland City Council on a weekly basis via attending the City Council Meetings. It was designed to keep him out of the normal political exchange and shield him from daily bad press that would come if he made one misstatement. That was the only concern. Jerry wanted his CAO to handle matters like department head firing and hiring, and in the case of the Police Chief, Jerry acted with and not rather than, the City Administrator he hired. They were to be seen as one – not separated by Charter. So the City Administrator acted on the wishes of the Mayor. That was the idea.
Barbara, your language completely ignores that fact of California political and legal history. Indeed, I turn to Brown v. Fair Political Practices Com.84 Cal.App.4th 137 (Cal. Ct. App. 2000) (I was in court sitting with Jerry for that one) and which states: “The charter revisions enacted by Measure X in 1998 did not change the powers of the council. The description of the city manager’s responsibilities was substantially unchanged, but the mayor was given the new power to direct the city manager’s activities. The mayor’s enumerated duties were also substantially unchanged, but he gained significant authority over the city’s administrative affairs. Before Measure X, the mayor was a council member subject to the non-interference clause (which the initiative did not revise in any substantive way). The principal effect of the charter revisions was to establish the mayor as head of the executive branch of city government, with unprecedented authority to control the city manager’s administrative functions.” Note, “unprecedented authority to control the city manager’s administrative functions”. That means the Mayor acts through the City Administrator, and not as a replacement to the City Administrator. So, the Mayor can’t act alone and must act with the City Administrator. Mayor Thao did not do that.
So, you reach for Charter Section 604(b)(10) and then you write that “The Mayor has independent authority to terminate the Police Chief with or without cause pursuant to Charter sections 503 and 604(b)10).” In point of fact, as stated in Brown v. Fair Political Practices Com, that is not true. And this points to my concern that your first objective was proving that Mayor Thao was correct, and did not at all stop to consider the vast sea of legal opinions and City Charter language that points to the Mayor, in effect, acting illegally. Otherwise, why leave yourself and the City of Oakland, wide open to what would be a devastating and embarrassing legal attack?
For example, you use this language from 604(b)(10): “Notwithstanding any other provision of this Charter or any provision of the Oakland Municipal Code, and acting separately or jointly with the Mayor, [the Police Commission may] remove the Chief of Police by a vote of no fewer than five (5) affirmative votes. If acting separately, the Commission may remove the Chief of Police only after adopting a finding or findings of cause, which shall be defined by City ordinance…. Upon removal by the Commission, by the Mayor, or by the Mayor and the Commission acting jointly, or upon the notice of vacancy of the position of Chief of Police, the Mayor, in consultation with the Chair of the Commission, shall immediately appoint an Interim Chief of Police…. The Commission, with the assistance of the City Administrator, shall prepare and distribute a job announcement, and prepare a list of at least three (3) candidates [for Chief of Police] and transmit the names and relevant background materials to the Mayor. The Mayor shall appoint one person from this list, or reject the list in its entirety and request a new list from the Commission.”
But, Barbara, you left out the TOP BEGINNING OF THE POLICE COMMISSION’S POWERS AND ABILITIES, which reads “b)Powers and Duties. The powers and duties of the Commission are as follows;” and replaced it in your letter with “With respect to the Mayor’s appointing authority over the police chief, Charter section 604(b)(10) provides in relevant part:” BARBARA, THAT’S A NO-NO. If you don’t like what the City Charter says, that is another thing, but you have to go with what it says as the law of Oakland, and not twist it to suit a political objective. Please do not do this ever again because it is not right. My mentor, the late Alameda County Council Richard Winnie, is talking to me from above now, and telling me to not let you get away with that. So, I am not allowing this perturbation of the City Charter to stand, and I am taking this position in honor of Richard Winnie (who also co-crafted the original version of Oakland’s Strong Mayor law).
The proper way forward was to have Mayor Sheng Thao act through her City Administrator, and with the Police Commission. Indeed, 604(b)(10) does not specifically assign power to the Mayor, but assumes that another part of the City Charter has such language. Guess what: it’s not anywhere. And it is certainly not where it should be and that is under the Mayor’s Powers. Moreover, even when you say “The Mayor has the power” what you’re really leaving out is the detail: the Mayor of Oakland must work through the City Administrator, and not alone. That’s the little devil in the detail and one you left out Barbara.
In closing, we have a big mess. Mayor Thao acted without a clear view of Charter language. Moreover, she’s afraid to take her case to the Police Commission because of the fact that she did not appoint most of the members on it. That’s completely baseless and no reason to try and skirt the City Charter, but that’s clearly what was done. That’s not something you should be backing, Barbara. I call on you to recall your legal opinion as soon as possible and for the good of Oakland.
Barbara, I remain your friend, but one who’s painfully concerned with the over-politicized direction Oakland has taken. Please reject that path.
We are family.
Best regards,
Zennie
Here is the City Attorney’s original opinion:
Public Legal Opinion – Mayor Thao's Authority to Terminate or Remove Police Chief by Zennie Abraham on Scribd