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Rent Stabilization Board Member Chris Kavanagh, an elected official embroiled for a second time in controversy around his place of residence, has engaged criminal attorney James Giller of Oakland to defend him—if need be. 

On July 30, the Berkeley city attorney and city clerk asked the Alameda County District Attorney’s Office to look into the question of whether Kavanagh lives in Oakland rather than Berkeley as he claims, and, if so, whether he has defrauded the public. 

“We have to wait and see what happens,” Giller told the Daily Planet on Tuesday, underscoring that to date no charges have been filed. 

“He’s a Berkeley resident,” Giller said. 

Kavanagh responded to Daily Planet calls with an email Thursday saying: “Thank you for your recent phone message inquiries. On account of my legal counsel, I cannot make a statement at this time. But I hope to make a comment soon to address the issues.” 

The question of Kavanagh’s residence surfaced recently when the new owners of a house with a rear cottage on 63rd Street in Oakland tried to evict Kavanagh from the cottage unit, saying they wanted to move into it. (Kavanagh’s name is on the 2001 lease for the cottage, although he has declared he lives in Berkeley on candidacy papers and voter registration forms. Kavanagh has told rent board colleagues that his girlfriend lives at the Oakland address.)  

Kavanagh’s fight against the eviction led to renewed allegations that the Berkeley official does not live at the 2907 Dwight Way, Apt. 16, address where he claims residence for living and voting purposes. 

The question of Kavanagh’s residence was first brought to the attention of the district attorney by the city attorney and city clerk in January 2003. He was not charged with any crime at the time.  

Kavanagh has served on the rent board from 2002 to the present, having been re-elected in 2004. 

The answer to the question of legal residency may be more complicated than it appears on the surface.  

“You have to grapple with the difference between residency and domicile,” Assistant Chief Alameda County District Attorney Nancy O’Malley [no relation to this paper’s owners] told the Daily Planet on Tuesday, declining to go further into the difference between the two. 

Referring to the Kavanagh case, she said, “We’re taking a look at it. A person can have a residence in Nebraska, but have a domicile in Berkeley.” O’Malley said she did not know when her office will come to a conclusion on the Kavanagh question. 

City Attorney Manuela Albuquerque declined to define “residence,” when asked by the Daily Planet at the July 31 City Council meeting. City Clerk Pamyla Means directed the Planet on Wednesday to the California Elections Code, which says a person who leaves a particular jurisdiction temporarily “with the intention of returning, does not lose his or her domicile.” 

In the case of San Francisco Supervisor Ed Jew, who will stand trial on charges that include lying about living in the district he represents, the San Francisco Chronicle noted in a July 4 story that “Jew and his attorneys argue that it’s intent, not actual days in a house, that legally determines a politician’s official residence.”  

The key question is whether Jew intends to return to his house, not the time he spends elsewhere, Jew’s attorney told the Chronicle. 

The California attorney general has weighed in on the question (in 72 Ops.Cal.Atty.Gen.8) saying: “While the question of domicile is a mixed question of law and fact…many factors enter into the equation, including where an individual is registered to vote and his or her address for mail…, where tax returns are filed…, where an automobile is registered…, and where a homeowner’s exemption or renter’s credit is taken…. However, the critical element is that of intent. While declarations of intent are significant, they are not determinative. The acts must be examined as well.” 

Charges that could be brought against Kavanagh were specified in the city clerk’s January 2003 report to the district attorney: “If Mr. Kavanagh actually lived in Oakland at the time he filed his papers for candidacy and assumed office or does so at the present time, he may be guilty of at least the following violations of the Elections Code: Section 18100-Registeration of persons not entitled to register; Section 18203—false declaration of candidacy; Section 1835—false statement in candidate’s statement; Section 18500—fraud in connection with vote cast and Penal Code section 118—perjury.”