Editorials

Who's In Charge Here Anyhow?

Becky O'Malley
Sunday June 24, 2018 - 01:44:00 PM

Thanks to a citizen videographer, I’ve been able to watch a very peculiar performance by a subcommittee of the Berkeley City Council which was tasked, more than a year ago, with reviewing Berkeley’s participation in the Urban Shield drills on police crisis response. You can find a good summary of what happened and a link to the video here.

It’s an issue which has attracted a lot of public attention not only in Berkeley, but also at the Alameda County Board of Supervisors, in Santa Cruz and San Francisco and probably other cities.

Opposition to Urban Shield goes back at least ten years, but has recently accelerated along with the Black Lives Matter movement. The program is based on a military assault model, which critics, including Berkeley Councilmember Kate Harrison, contend seriously neglects the de-escalation tactics which are more successful in the typical urban crisis. Other cities, including Palo Alto, have objected to how expensive police participation at overtime rates can be. Urban Shield exercises are accompanied by an “Expo”—translation: trade show –which pitches expensive military hardware to a pre-primed market of local cops.

The pros and cons of Berkeley’s participation have been extensively debated over the last decade, and Councilmember Harrison covers them well in her report to the subcommittee, so we don’t need to re-hash them here. But reviewing the video I was disturbed by what I saw of the civic decision-making process. 

At the very end of the meeting, Councilmember Susan Wengraf threw a procedural bombshell into the discussion. She produced what she said was a copy of several sections of the city’s charter, read them aloud, and interpreted them to mean that councilmembers (and perhaps even the subcommittee) would be breaking the law if they voted to withdraw from Urban Shield. Mayor Arreguin seemed to be persuaded by her logic and announced that he’d decided to vote no on the resolution which was proposed in the draft report authored by Councilmember Harrison. 

“I’m not here to break the law!” he said a couple of times. 

Say what? 

It’s a common error among relatively smart people who haven’t been to law school to think that if you just read a few sentences of any code you will know what the law requires of you. Unfortunately, it’s not quite that simple. Often, disputed interpretation of laws ultimately must be settled in court. 

Actually, whoever’s writing the Indivisible Berkeley emails just dropped a paragraph into my email stream which neatly sums up this problem (emphasis added): 

“Urban Shield: In the wake of the most recent Berkeley City Council ad hoc Subcommittee on Urban Shield meeting, the path forward seems murkier than ever. An opinion by one of the subcommittee members that the Council might not have the legal authority to direct the police in this matter caused Mayor Arreguin to completely back away from his previous decision to recommend withdrawal from participation in Urban Shield. This rescission was offered before any opinion was sought from the City Attorney. Without the Mayor affirming and insisting on City Council's authority in matters of policy and governance, even in view of long settled legal decisions and historical precedent, we believe the ramifications could be great and go beyond the issue of Urban Shield.” 

Who thinks that a city council lacks the power to decide to opt out of expensive paramilitary training for its police force? And that if they tried to do so, they’d be “breaking the law”? 

As Councilmember Harrison can be observed explaining cogently in the video, councils are supposed to make policy for the city manager and her subordinates to follow up on with implementation details, not the other way round .  

Managers don’t make policy, they execute it. In Berkeley’s case, there’s even a court decision which backs up the City Council’s authority over “policies, practices and procedures of the police department.” 

Interpreting the meaning of codified law for councilmembers is the job of the city attorney, not a do-it-yourself project either for individual councilmembers or for the city manager. And if for some reason the councilmembers don’t like city attorney’s advice, they can ask for a second opinion from an outside counsel, and even take the matter to court for resolution. 

Berkeley has what is sometimes called a strong manager/ weak mayor form of government, which seems to have led current city manager Dee William-Ridley to claim ultimate authority over what kind of training the police should get under all circumstances. At the end of the subcommittee meeting she used the discussion of Urban Shield as a springboard for a general complaint that she doesn’t get enough respect. 

“While a lot of this may be fresh and new to many, this is not a new comment,” she said. “My desk, my office, has repeatedly stated both formally and behind the scenes that I believe there is an absolute erosion of the city manager responsibilities before my time and during my time.” She went on to detail what she personally thought the city’s policy should be. 

This is the crux of the problem.  

Williams-Ridley’s previous job was as an assistant city manager in Modesto—and I hate to break this to you, Madame Manager, but you’re not in Modesto any more. Berkeley council members have traditionally expressed and implemented leading edge positions and actions on a variety of controversial matters large and small, all the way down to specifying what kind of pesticides could or could not be used in city parks. Previous managers, notably Weldon Rucker and Phil Kamlarz, have understood and respected this dynamic, but Williams-Ridley doesn’t seem to get it. 

It doesn’t help matters that she speaks of herself in the third person (My desk, my office has repeatedly stated …) or reveals that she’s been trying to control the council from behind the arras (…both formally and behind scenes…) 

There’s an obvious power struggle going on. It should be out in the open, not behind the scenes. 

In the wake of Black Lives Matter, control of police by elected officials has gained new importance all over the country. The same kind of struggle has been going, for example, in Asheville, N.C. There elected councilmembers have been trying to place restrictions on probable cause searches which have been alleged to disproportionately affect minorities., and police have been resisting. The council prevailed, but it took some work. 

The question of whether the city council has the legal authority to vote to bar Berkeley police participation in paramilitary training should be on the table in the public forum. The city attorney should be asked to provide her formal, written advice on the topic well before the meeting at which Urban Shield is scheduled to be considered, on July 24.  

Objectors, councilmembers or whoever they are, could then consult their own legal authorities in order to facilitate an informed discussion. Other questions have arisen recently regarding city staff’s apparent assumptions about lines between their powers and the City Council’s--these might also be illuminated by a free exchange of opinions.