Editorial: Cynicism Damages Tenant Cause

By Becky O'Malley
Tuesday August 14, 2007

There’s been a lot of hoo-hah lately, including some in these pages, about the recent airing in the Matier-Ross gossip column of the old rumor that Berkeley Rent Control Board member Chris Kavanagh is seldom seen in the Dwight Way apartment which he rents, and that in fact he might really “live” in a charming cottage in Rockridge, just over the border in Oakland. Why the ironic quotes around “live”?  

Well, what those complaining about the peripatetic Kavanagh are annoyed about is that they think he probably spends most of his time in Oakland, even though he votes and was elected to the Rent Board in Berkeley. The problem with this, the probable reason why the Alameda County District Attorney’s Office has been reluctant to charge him with any crime, is that “domicile” for the purpose of voting and by extension for holding office, is not the same as what is called “his residence” in ordinary language. 

Kavanagh has always told naysayers—and he’s never kept this a secret—that his girlfriend lives in Oakland, and he spends a lot of time, including (shocking though it may seem) nights and weekends, with her at her home. We even saw him riding his bicycle across Alcatraz at Colby on his way to Berkeley one morning recently—he’s never been particularly secretive about where he hangs out. The new wrinkle is that his name has shown up on the lease of what might be called “her residence,” where eviction now threatens him—or them. But from a strictly legal perspective, that probably doesn’t make much difference. 

Traditionally, voters have been allowed to designate their domicile for voting purposes on very subjective grounds. The student rights movement starting in the late 1950s strengthened this principle. For at least 30 years students in California have chosen whether they wanted to vote in their parents’ home town, from their college dorm, or from either one when they were staying elsewhere for extended periods. Bed-checks are not part of the analysis. There’s even a respected body of law arguing on constitutional grounds that people should be allowed to vote in more than one place of “residence,” since so many people own and pay taxes on second homes, but generally voters are forced to choose only one place to vote.  

Astute Alameda County prosecutors, more knowledgeable than the Berkeley city attorney’s office, are well aware that if they try to charge Kavanagh with committing a crime they’re likely to lose, or at least to face an extended and expensive legal battle. And certainly if he’s never claimed domicile for voting purposes anywhere but Berkeley, regardless of where he spends his nights and regardless of what leases he’s signed, they will lose the case. 

Does that justify what he’s done? The answer is not the slam dunk many of his critics would like it to be. After all, many Berkeley citizens of our acquaintance have more than one residence: apartments in New York and Paris, cabins in Tahoe and Napa, even villas in Tuscany. David Teece, a part-time faculty member at UC’s Haas Business School (the proud tenant of the Mitsubishi Bank Chair in International Business and Finance and the moneybags behind the condo-ization of downtown Berkeley) is rumored to have at least five homes besides his Claremont District compound, including one in his native New Zealand. If Teece is a U.S. citizen (and dual citizenship is now possible) would his many mansions disqualify him from registering to vote in Berkeley or even from serving on the Rent Board? Probably not.  

So should Chris Kavanagh be prosecuted for sleeping over in Oakland, even if it’s most of the time? Probably not. And should signing two leases in adjacent cities be treated differently from owning two or more homes around the world? Probably not. We’ll even go out on a limb and predict that Supervisor Ed Jew will never be convicted of doing something similar or perhaps even more egregious in San Francisco (though he might be convicted of other crimes.)  

The question of what Kavanagh’s done wrong, ethically if not legally, still lingers, nonetheless. The loudest complainers against him have been Berkeley’s organized small landlords, which is odd considering that he ran on a platform supporting tenants’ rights. He wasn’t elected to defend landlords, though he was supposed to provide a fair shake for both sides in landlord-tenant disputes. If he hadn’t run, another pro-tenant candidate would have taken his place on the winning slate. 

It could be argued that David Teece has actually done more harm to Berkeley’s small landlords. The cash-register multiples that his surrogates have built to warehouse student renters seem to be out-competing local housing providers. 

If Chris Kavanagh’s harmed anyone, it’s tenants. He’s probably no worse than any of the other cynical baby boomers who have stockpiled and sublet rent-controlled units in Berkeley and Manhattan though they can and do afford to live elsewhere. (Yes, we know you’re out there.) But that doesn’t justify his quasi-public thumbing his nose at the voters’ justified expectation that he live in Berkeley. He risks giving the whole tenants’ rights movement a black eye in the public consciousness, and he’s not doing the Green Party any good either.