Long post ahead but most of it is text of some of the public comment that I have transcribed for you, you’re welcome. So, I’ll admit when I wrote yesterday’s post I had only caught the tail end of Kevin Kennedy’s comments and then most of the public comment. There was a quick break to watch the first episode of The Unbreakable Kimmy Schmidt because the husband does NOT like City Council meetings, and then I picked up the viewing again.
When I had written the bit about people not understanding what the roles of the City Auditor and City Treasurer were I had not caught the exchange between Kevin Kennedy, Janet Kern, and John Russo (with cameos by Marilyn Ezzy-Ashcraft and Trish Spencer) but wow. And wow.
First, there was some discussion about not having an “agenda” when it came to both the Auditor and Treasurer’s opposition to approving the MOUs. The problem with this assessment of their motivations is that it fails to take in to consideration what their charter outlined roles and responsibilities are. They are, per the charter, in charge of a very distinct role in the City. It was clear from both Kevins comments the other night that those roles have becomes muddied or expanded over the years. This is why I’m not really joking when I say that there should be a Council Referral to discuss what the roles and responsibilities are of the City Auditor and Treasurer and perhaps, for good measure, a discussion of all the charter level positions. That way, everyone is clear on what they are and are not supposed to do so that there isn’t this feeling of being “personally attacked” for doing what they perceive to be their job, particularly if it’s not their job.
No one is saying that signing up to be a City Auditor or Treasurer means that anyone has given up their right to speak as a private individual on a matter of importance to all Alamedans, especially folks who have cared enough to sign up for what is a relatively thankless job (although it does come with health bennies and a sweet parking space). But the reason why there are defined roles is so that — on topics that may be tangentially related but not within the job spec — they can provide input like any other resident in Alameda but there isn’t an expectation that they are to be treated any differently than any other concerned citizen in Alameda.
Here’s a few quotes I transcribed from Wednesday night that were revealing and signaled, to me at least, that our City Auditor and City Treasurer might have expanded the scope of their duties over these many years:
Kevin Kennedy:
I appreciate the City Attorney reading that notice [regarding legal liability], I have a couple of questions, well a couple of comments and a couple questions. Number one, back in 2013 when this opinion was first sought out about setting up a trust I never saw it, just to be perfectly clear, I had no idea it was done, nor did the City Auditor to the best of my knowledge.
Yeah, it’s not in the City Treasurer’s job description to know whether or not the City sought out a legal opinion. And:
What we’re trying to do is work in the financial interest of the City, that’s what we’re elected to do that’s what people ask us to do and that’s what we’re here to do. This situation’s been very difficult for the Auditor and I because we’ve been working in a very short time frame to try to give you what I think you expect and what the public expects from us which is financial guidance on probably the biggest issue the City faces.
Per the charter, the City Treasurer is elected to recommend an investment policy and monitor it and report to the City Council about that investment policy. Kevin Kennedy did an amazing job of doing exactly that a few meetings ago and explained — pretty handily — to the City Council about attempting to limit too much the types of investments made depending on political points of view. The City Auditor is elected to perform annual audits (in this case hire a firm to do it because it’s too much for one person to handle). “Work in the financial interest” is a vague term that encompasses their specific roles, but is not necessarily what they were elected to do. Do their comments have more weight than the average joe? Absolutely, but when they use the pulpit of their elected office to speak on issues that are not within their purview of their elected office then that — in itself — is furthering an agenda.
Kevin Kearny:
We’re the people with financial expertise, we got elected to comment on things.
No. No, you did not. And:
The procedure here is really really flawed, we get this information like two, three days before the public and that’s if we yell and scream. This information before the 16th meeting, we had no idea what the numbers were.
The procedure is not flawed because — in this case — there is nothing in the City Charter that requires that either the City Auditor or the Treasurer receive the information with advance notice. It’s not within their scope of responsibilities. Technically on this specific subject they are no different than you or I. And:
It would be nice if we had some kind of procedure in place, I understand the behind the closed doors type thing, we’ve been involved in that too on issues, I don’t want to go into details of why, but we’ve been involved in those things. I think it would be better if you want us to work together, because I want to get along with everybody, you know, being like, me and him, Butch Cassidy and the Sundance kid and the end of the friggin’ movie with everyone going “Kevin, what the f?” Bang. But honestly that’s what it feels like many many times. My suggestion would be this: as these things go along, maybe you could say, “gee whiz, this is what we’re kind of thinking about.” You can put up under the cone of silence so we won’t talk to any body. “What do you guys think?” And we can point out things.
Whoever allowed the Auditor and Treasurer into closed sessions the first time around is probably to blame for this current conflation of duties. While it would be nice to have some way to bring the City Treasurer and Auditor along for the ride, technically, it’s not appropriate unless the City Charter were to change to alter the scope of their duties.
Anyway, I’ll leave you with this exchange which just reinforces the dysfunction that exists in our City government.
Kevin Kennedy: One of the things that was brought up by Councilmember Matarrese was, can we make this legal opinion public. And apparently there are negotiations reasons why this should not be made public. Well apparently everyone’s seen it except for me and the Auditor and the public. it’s been shared with the unions, it’s been shared with the Council apparently. You mention in your comment that the unions were aware of it and had seen it. Is that not true?
John Russo: Incorrect, no.
Janet Kern: If I can respond to the couple of things you said.
Kevin Kennedy: Sure
Janet Kern: In 2012 the opinion that was solicited from the outside law firm was about OPEB, not about a trust, but about OPEB. What the law was, state of the law was on OPEB and they analyzed each and everyone of the MOUs because all of these inclusions are based heavily on the contract language. Unlike PERS, OPEB is contractually driven and so every time you read a case or what have you, it doesn’t necessarily apply to what Alameda’s contracts or MOUs say. You have to look at what the language of what each individual contract is and so this law firm went through every single one of our MOUs and analyzed the legal risks, how strong they were, if they could be amended, those kinds of things and they provided us with that opinion so it was not about the OPEB trust. Then the Council asked on April 16th, that’s a year and a half later, to update that information and we also asked them to look at the provisions in our proposed MOUs creating the OPEB trust, which this OPEB trust is different than every body elses OPEB trust, or maybe it’s not. But this is one that is not the same as the PARS trust that we have that has $350,000 in it, this would be a separate kind of trust. And the question that was asked was whether it would create an additional obligation over and above the obligation the City has in the MOUs should they be adopted would they create an obligation and the trust itself would not create an obligation in and of itself. And we had that confirmed with the law firm.
The second thing you ask is on the opinion itself, unfortunately, my brethren in audience, who might be listening and who sit on the dais recognize that here is an attorney-client privilege and that even though this is a public body this body also gets the benefit of being able to get legal advice, legal strategy in a confidential way. That is to the benefit of this City. If this City had to tell every body every thing that they were doing at all times, we would be in severe disadvantages, so that is not what is required to be done. The unions are the public. And the unions did not get a copy of this opinion. The opinion in December 2013 was provided to the City Manager’s office for their use in going forward with their negotiations. The City Council, this City Council sitting here received that opinion and the update of that opinion last night. That is not publicly available, the Council has not decided to make it publicly available and I heartily believe that is the correct posture.
Kevin Kennedy: Okay so just, I apologize if I misheard this, just to be clear: at no point in the past or in the current situation has the legal opinion been shared with anyone other than Council and the staff?
Janet Kern: That is correct.
Kevin Kennedy: Okay, so, basically we’re going to have to trust you on that I guess. I mean, we’re just going to have to go with it.
Marilyn Ezzy-Ashcraft: I’m sorry, do I understand that? Are you doubting the word of our City Attorney?
Kevin Kennedy: I’m not doubting the word at all, I’m just saying that the legal ramifications of this are a big issue and we don’t have any information on it.
Trish Spencer: Member Ashcraft, let’s let him continue.
Kevin Kennedy: It’s fine, it’s fine, I just want to be real clear about it.
Marilyn Ezzy-Ashcraft: I’ll be clear about one thing too. The City Attorney, at the behest of the Council, met in closed session last night and did provide the language in our charter that outlines the duties and responsibilities of the City Manager, the City Auditor, the City Treasurer, and I can’t remember if you included the City Attorney, but I’ve read those and I believe she is acting well within the scope of her duty and we have no reason to doubt her integrity and I’m sure that wasn’t your intent.
Kevin Kennedy: I don’t either, I’m not doubting it at all, I’m just saying that was something we asked for and didn’t get it.
Trish Spencer: Please continue.
John Russo:Wait one second, wait one second. But what you asked for, it’s customary that you don’t get it. It’s not unusual here. There isn’t a “well we’ll have to trust you…” with an insinuation…
Kevin Kennedy (crosstalk): No I understand
John Russo: …that there’s something untoward in that. This is standard operating practice and you, of all people, being involved in a confidential profession would understand that there are certain things that you don’t tip your cards out to the other side, and I wish you hadn’t suggested — because I know I’ll see it on a blog cause I’ve seen things that you said before taken out of context — I wish you hadn’t suggested that somehow labor had received the opinion…
Kevin Kennedy: (crosstalk) I thought…
John Russo: …because you did say that. And it wasn’t true.