There seems to have been some confusion over the facts of the Condo Conversion Initiative, which will be before Berkeley voters on the Nov. 7 ballot. As a result, the city may be forced to hire outside attorneys to sue itself to correct possible errors.
On Monday afternoon, this reporter’s examination revealed that there was a major inconsistency between the versions of the initiative that various city officials and Berkeley residents had been discussing.
All parties are now scrutinizing the provision that would change the time allotted for a pre-existing tenant to buy a rental unit converted to a condominium. Currently, the city ordinance allows one year after the landlord first offers to sell it to the tenant. The original version of the initiative proposed that the time be changed to 14 days with 30 more days to close the deal. But a second draft of the initiative changed the time allowed to 30 days with no time limit for closing the sale. City staff now claims proponents of the initiative told the city attorney that they had only changed the title, which is why the city attorney did not catch the changed time limit.
“The city attorney told them to revise the title,” said City Manager Phil Kamlarz when the Planet reporter asked about the discrepancy he’d discovered between the initiative and the city attorney’s analysis, which the council had approved for placing on the ballot at their July 25 meeting.”However, they also made a change in the initiative. Nobody was aware of the actual change.”
“It would appear that we have an assemblymember and a mayor writing a ballot measure opposition argument on an initiative that they haven’t actually read,” said Michael Wilson, spokesman for the Berkeley Property Owners Association (BPOA).
Kamlarz said that the initiative proponents made the change found in the second draft before they went out to collect signatures. He said that the council did approve language for the ballot question on the initiative that included the 30-day time period at their July 25 meeting.
But since the city attorney’s analysis was based on the old version of the initiative, it says that the time limit for buying a converted unit is six weeks for a pre-existing tenant, a figure that apparently was based on adding 14 days and 30 days (which actually adds up to 44 days). In order to correct this problem, the city, essentially, must take itself to court.
“There is a process for a technical change like this,” said Cisco Devries, chief of staff for Mayor Tom Bates. “The city has to go to court to get it fixed.”
Kamlarz explained that the city is hiring an outside counsel to sue the city to correct the problem.
“There are a couple of changes that must be made,” said Kamlarz. “The argument against the Condominium Conversion Initiative was based on the older version. We are suing to allow the opponents of this measure the opportunity of changing their argument. Additionally, the city attorney’s analysis was flawed, so that must be changed as well.”
Kamlarz admitted that this was a big oversight.
“The city attorney didn’t notice the changes in the first edition,” he said. “It was a staff mistake. The analysis was based on the wrong version.”
Councilmember Dona Spring, District 4, hoped that the city attorney’s office is working hard to correct this.
Spring said, “I hope that the city attorney’s office is going over the ballot measure and the analysis to make sure that there are no more blunders.”
Kamlarz insisted that the outside counsel is looking over the initiative and has not caught any more significant errors.
Councilmember Kriss Worthington, District 7, told the Daily Planet that he has asked another attorney to look over the initiative to make sure no other significant changes have been made.
“The threat of 500 units of central housing being removed could cause catastrophic displacement on Berkeley tenants,” said Worthington.” We need to study every technicality and legality of the issue very closely.”
Deputy City Attorney Zac Cowan did not return several phone calls or respond to repeated requests to meet with him regarding this matter. City Attorney Manuela Albuquerque is out of town until Monday.
Wilson threw another question into the mix.
“One real question is: What do we respond to?” said Wilson.” Do we respond to the incorrect argument or do you assume that it is to be changed [by the courts]?”
City Clerk Sherry Kelly replied,”My understanding is that we are not going to court to do a new argument but to rectify the inaccuracy concerning the number of days ... Monday is still the day for the rebuttals. If the rebuttals perpetuate the error, we will have to go to court [to fix those] as well.”
Councilmember Linda Maio, District 1, who took the lead in the opposition to the Condo Conversion Initiative, thinks voters need to understand the initiative.
“The most important thing for us is to make sure that the voters have the right information,” said Maio.”We don’t know how much the proponents changed it and we must see if the changes were significant. We need to honor the voters.”
When asked why opponents didn’t see the changes sooner, as the changes had been made back in April and posted on the city’s website, Maio replied, “I guess we were using the language provided to us by the city clerk. It shouldn’t have been that language at all. It speaks to the fact that we actually need to look over the initiative very closely.”
An employee who preferred not to be named from the Housing Justice Coalition, an organization that helped draft the language for the initiative along with with Michael Wilson’s father David, told the Daily Planet that the confusion regarding the initiative language was the fault of the city staff and declined to accept responsibility on behalf of her organization.
“They should’ve changed it,” said the source. “I know that the people I work for have worked to do everything as insanely legal as possible. The city clerk had the new language several months ago. All infrastructures are happy with the status quo. My bosses are trying to shuffle around the status quo. They knew that they were going to get picked at.”
This isn’t the first time that the city attorney’s office has been charged with writing incorrect language for an initiative on the Nov. 7 ballot. The battle over the Landmarks Preservation Ordinance Initiative also drew comments insinuating that Deputy City Attorney Cowan didn’t provide a fair ballot analysis.
“Zac is a professional, who has had many years in Berkeley,” said John McBride, secretary of the Berkeley Architectural Heritage Association. “We just saw many things that were not realistic in his analysis.”
During the City Council’s July 25 meeting, City Attorney Albuquerque told the council that she was trying to make treatment of the Condo Conversion Initiative as unbiased as possible. Whether she succeeded or not is now part of the discussion among all parties.