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A Superior Court judge has ruled that three commissioners can sue the city for reinstatement of their full authority on the Landmarks Preservation Commission. 

The commissioners filed a suit naming the city and LPC Chair Burton Edwards, because of an Oct. 21 opinion by City Attorney Manuela Albuquerque that alleged a conflict of interest related to the commissioners’ affiliation with the Berkeley Architectural Heritage Association. 

Last November Albuquerque instructed Edwards not to acknowledge commissioners Becky O’Malley, Lesley Emmington-Jones, Carrie Olson and Doug Morse’s comments or votes on the controversial proposal for a synagogue and school at 1301 Oxford St. The proposal was before the LPC because of the property’s status as a city landmark.  

Three commissioners are challenging Albuquerque’s opinion and the fourth, Morse, is not participating in the suit for undisclosed reasons. 

According to the commissioners’ petition, the suit seeks a direction from the Alameda Superior Court to allow the commissioners to participate fully on the LPC without restrictions. The suit does not seek monetary damages. 

The June 15 decision, by Alameda County Superior Court Judge Judith Ford, overruled Albuquerque’s assertion that there was no basis for the commissioners’ suit. Ford’s ruling came one day after hearing arguments from Albuquerque and the commissioners’ attorney, Antonio Rossman. 

“Our motion, which was to get the complaint dismissed on its face value, was denied,” Albuquerque said. “But the decision doesn’t go to the merits of the case.” 

Rossman said the next step will be a hearing, likely to be scheduled in late summer. 

Albuquerque said in her Oct. 31 opinion that the four commissioners had a conflict of interest because of their association with the Berkeley Architectural Heritage Association. Three of the commissioners are on the board of directors and the fourth is paid staff.  

The opinion said the conflict arose from a letter written by BAHA President Sarah Wikander on BAHA stationery that criticized the Draft Environmental Impact Report for the proposed Oxford Street development. Wikander said in the letter that the report did not adequately take historical aspects of the site into consideration. Albuquerque said in her opinion that Wikander’s letter represented a prejudgement of the project on the part of all BAHA’s directors and therefore caused a conflict of interest on the part of the four commissioners who have ties to BAHA. 

Edwards said the issue is an important one and he’s anxious for a quick decision. “I would welcome the earliest decision possible so the commission can settle this question of impartiality.” 

Albuquerque issued a number of opinions in the last year that have effected the duties of commissioners because of conflicts of interest. The former chair of the Community Environmental Advisory Commission, Gordon Wozniack, was asked not to participate in any issues related to Lawrence Berkeley National Laboratory, where he is employed and another former CEAC chair, John Selawsky, was forced to resign the commission because of a conflict of interest over his duties as an elected director of the Board of Education. 

O’Malley said that what’s at stake in the suit is whether people who are nominated to commissions in Berkeley can be active participants in public life.  

“The option is to have city commissions made up of ‘political eunuchs,’ to quote California Supreme Court Justice Stanley Mosk in a similar case,” O’Malley said. “What he meant by that is commissioners who aren’t active, have no opinions or background in related fields.”