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Commission Election Voided, Attorney Orders New Votes

By Richard Brenneman
Tuesday March 27, 2007

While David Stoloff is out as Planning Commission chair, there’s no successor yet—despite the group’s election earlier this month. 

That’s the ruling from Berkeley City Attorney Manuela Albuquerque, who said the election was void because it violated noticing provisions of the Brown Act, which governs meetings of public bodies. 

That means James Samuels is still vice chair, and not chair—despite the vote March 14. 

Albuquerque’s ruling affirms objections raised the night of the vote by members of the commission’s minority faction, who said that the agenda failed to provide the legally mandated notice. 

Stoloff—elected chair in a controversial election less than two months ago—quit after sharp criticism for the way the election came about. 

Albuquerque said his attempt to get the commission to accept vice-chair James Samuels as his automatic successor was invalid, despite the backing of city Planning Manager Mark Rhoades. 

Albuquerque said Samuels would preside at the start of Wednesday night’s meeting until there is an election of officers and a successor to Stoloff is voted into office.  

Wednesday night’s vote will be the commission’s third election of a leader in less than six weeks, probably a record. 

There’s little doubt the results will be the same—Samuels as chair and Larry Gurley as vice-chair—given the clear-cut divisions that have marked crucial commission votes. 

Stoloff was elected chair Feb. 14, defeating incumbent Helen Burke on a five-four vote. In recent years, chairs have been elected to two successive one-year terms, but Burke served only one and had expected re-election as a matter of course. 

The day following her surprise ouster, Burke, an environmental activist, charged that Stoloff had lied to her and said he supported her re-election. While he denied telling an outright lie, Stoloff said he allowed Burke to have “a misunderstanding which I did not correct.” 

Stoloff said, “I wanted to be chair because I have a vision of what the Planning Commission can do and I believe I can be the most effective in implementing it.”  

Even Mayor Tom Bates was blind-sided by the election, said his chief of staff, Cisco DeVries, the day after the election. 


Vote challenged 

The only hint of what was coming at the March 14 commission meeting was the single item listed under the heading of Chairperson’s Report, “Reconsideration of election of Commission officers.” 

Announcing his resignation at that session, Stoloff said, “I believe I can be more effective as a member than as one of its officers. I resign effective at the end of the meeting. I expect that Jim Samuels will become chair.” 

Two members of the commission minority immediately raised challenges. 

“Because this is agendized as a reconsideration, is it appropriate to hold an election without public notice?” asked Mike Sheen, a member of the minority. 

“Because it’s an internal matter, it needs no more notice,” Stoloff replied. 

“As I understand it, David is resigning,” said Gene Poschman, another member of the minority. “I am confused that Jim Samuels automatically takes over as chair. As I read the commissioners’ handbook, the chair and vice chair have to be elected. There is no succession.” 

“Resignation is not covered in the handbook, so Roberts Rules [of Order] prevails with the vice chair taking over,” Stoloff replied. 

“Staff believe the language is appropriate and plain on its face,” said city Planning Manager Mark Rhoades, who backed Stoloff’s contention that because a resignation and replacement weren’t covered by the city’s commission manual, Roberts Rules prevailed. 

Harry Pollack, a member of the majority, then moved for an election “to avoid ambiguity.” 

“I said I expect Jim Samuels as vice chair to become chair,” Stoloff said. 

Sheen made a substitute motion, calling for a publicly noticed election for chair and vice chair “in the interest of good government.” 

Poschman seconded, but the motion failed. 

Then came a motion to “confirm” Samuels as chair, which passed on a six-three vote. 

Two candidates were then nominated for vice-chair, Gurley and Sheen, with Gurley winning five-four. Roia Ferrazares, who voted with the majority to confirm Samuels, had nominated Sheen and cast her vote with the minority. 

But following questions from Sheen, Albuquerque intervened, and the result is carried as item five on the agenda for Wednesday night’s meeting under the heading Chairperson’s Report. 

Members are being asked to vacate the March 14 election and conduct new elections “of chair and possibly vice chair if cice chair is elected chair...” 

The reason? As the next paragraph makes clear, “The city attorney has advised that the agenda description...was unclear because it failed to advise of the chair’s resignation and the need to conduct a new election.” 

Albuquerque “advised the Commission” to void the earlier election and conduct new nominations and elections. 

“The chair and vice chair have to be elected,” said Albuquerque Monday afternoon. “No one automatically assumes office.” 

Because the earlier vote was only mentioned obliquely as a reconsideration of the election and not as a resignation and new election, the Brown Act required that results of the earlier vote had to be vacated. 


Other business  

The only other significant items on Wednesday’s agenda are a hearing on zoning amendments for Telegraph Avenue to change business hours and the size and nature of commercial uses . 

The changes will allow businesses to remain open longer, allow subdivision of existing commercial spaces into smaller units and allow some changes in the number and types of businesses permitted in the avenue’s commercial district. 

Commissioners will also weigh in with their comments on the mandatory quotas for new residential unit permits for Berkeley outlined in the Association of Bay Area Government’s Regional Housing Needs Assessment. 

The quotas are one of the driving forces behind the city staff’s “hypothetical” proposal to consider adding 3,000 new units downtown now being considered by the Downtown Area Plan Advisory Committee. 

The meeting begins at 7 p.m. in the North Berkeley Senior Center, 1901 Hearst Ave. at Martin Luther King Jr. Way.