The City Council voted Tuesday to seek outside legal council before deciding whether to support a city attorney’s opinion that has caused a legal revolt by four members of the Landmark Preservation Commission.
After hearing comments in both public and closed sessions, the City Council voted 5-2 to consult with outside counsel regarding City Attorney Manuela Albuquerque's Oct. 30 opinion that four LPC commissioners, who are also board members or staff of the Berkeley Architectural Historical Association, are creating a conflict of interest if they participate in any LPC decisions regarding the controversial Congregation of Beth El proposal to build a synagogue and school at 1301 Oxford St.
Mayor Shirley Dean and Councilmember Linda Maio abstained from the vote. Councilmembers Betty Olds and Polly Armstrong were not present.
Albuquerque said Berkeley will open itself up to potential lawsuits under the 14th Amendment if the four continue to serve on the commission because of a letter written by BAHA president, Sarah Wikander, that was critical of the Environmental Impact Report for the proposed Beth El project.
The commissioners argue that the city attorney is exaggerating any conflict the letter might pose in order to “de-fang” the commission by disqualifying four of its members.
The commissioners, Becky O'Malley, Carrie Olson, Doug Morse and Lesley Emmington-Jones, have thus far refused to recuse themselves and an attorney representing them has said he will take the city to court if the council decides to support Albuquerque.
It is still uncertain if the City Council can effectively resolve the situation without some kind of legal action. The commissioners have threatened to sue if they are taken off the commission.
In her written opinion, Albuquerque said BAHA’s position on the EIR taints the commissioner’s opinion on the Temple Beth El project. She maintains that the commissioner’s would not be able to provide Beth El with a fair hearing on matters related to the development such has permit hearings to alter the property which is an official city historical landmark.
“It doesn't have to do with personal philosophy, religion or ethnic background, it's simply that when you are wearing two hats it is very difficult to be fair and impartial,” Albuquerque said.
O'Malley said Albuquerque's assertion of the appearance of bias is exaggerated and that BAHA only criticized the privately contracted EIR and not the project itself.
In a letter to the LPC, Antonio Rossman, a land-use attorney representing the commissioners, said that the city attorney’s opinion would have far reaching effects on all of Berkeley's commissions, boards and city officials because many people active in the city's politics are also members of politically active organizations.
The next LPC meeting is scheduled for Dec. 4 and at least one of the commissioners said she intends to take her place on the commission and perform all of her required duties — including voting on issues related to the proposed Beth El project regardless of the city attorney's opinion.
“The city attorney serves the city in an advisory capacity, she doesn't have the power to dictate her will onto the commission," O'Malley said.
The last LPC meeting on Nov. 6 ended abruptly when the four commissioners refused to disqualify themselves and Albuquerque, who was present at the meeting, directed Chairman Burton Edwards to not count the four commissioners votes at which point Olson moved to adjourn the meeting and the motion carried by a 5-2 vote. Two LPC commissioners were not present.
The 150 people attending the meeting — the largest crowd in the commission's history — were shocked when the meeting suddenly ended before any agenda items were heard.