Code Enforcement Should Be a Tool, Not a Weapon

Becky O'Malley
Saturday March 09, 2019 - 12:51:00 PM

Ah, the police power of the state: a fearsome thing, often used for good but also, not.

Merriam Webster online says it’s the “inherent power of a government to exercise reasonable control over persons and property within its jurisdiction in the interest of the general security, health, safety, morals, and welfare except where legally prohibited.” What could be wrong with that?

The tricky bit is that the police power is often employed orthogonally, to punish some other sin which is not called out in the charges.

Example A: Notorious bank robber Al Capone was sent up not for being a bank robber but for tax evasion. No one objected very loudly, because…gangster!

Example B: Paul Manafort. Also convicted of tax evasion, to be sent up for about 3 years. Sentencing Judge Number One gave him a minimal sentence, though federal guidelines suggest 19-24 years, because he’s viewed as a first offender, though he’s been engaged in this particular crime for ten years. Reasonable people tend to believe he’s done more bad stuff without getting caught—that this tax evasion is only the tip of a much larger iceberg.

Remember, the case against him fell out of Robert Mueller’s Russia investigation, though what he’s been convicted for so far has not much to do with Russia. But tax troubles will keep him off the streets for a while, and his next trial may produce a longer sentence.

If you don’t like crooks, these are two good examples of how police power can produce desired results. But there are plenty of bad examples too.

Right here in Berkeley we have one, a bad example of how the government’s police power can be used for the wrong goals. 

That would be the case of Mr. Leonard Powell of South West Berkeley, who is accused of letting his house fall into disrepair while raising a bunch of kids and grandkids, converting it from a duplex to a single family home for all these folks without getting a city permit to do so. 

Someone, or perhaps several someones, seems to have complained to the City of Berkeley that someone living in his house was up to something shady. It’s been reported that Berkeley Police police raided the house, and some time thereafter city building inspectors came around and cited him for a large number of violations of the Berkeley building code. 

This is a murky story, and what I’m telling you is my opinion only, not factual investigative reporting by any stretch of the imagination. The information in the last paragraph was confirmed in informal chats with southwest Berkeley neighbors and friends. Since several of them independently told me approximately the same story I tend to believe them. 

One, Steve Martinot, has done a huge amount of work getting Powell’s story into the public eye. We’ve published his account and analysis as Public Comment on this site. 

What jumps out at me in these tales is that the City of Berkeley building inspectors were obviously sicced on Leonard Powell because (a) he and his housemates offended someone for some other reason, or perhaps (b) he looked like a target of opportunity to the receiver who took over his house when Powell didn’t clear the code violations on schedule. Or both of the above. 

Consider that Berkeley, like most of the older neighborhoods in the East Bay, is full of heritage single family houses which are loaded with code violations. More worldly residents tend to know that a building inspector can’t just demand entrance to their private homes to prospect for problems, but Powell did not, and it brought him a world of woe. Why was his house chosen? 

Clues can be found in charges which have been made (anonymously or pseudonymously of course) on various local troll farms. Documents purporting to show that the property has been adjudged a public nuisance have been posted online, though careful readers observe that public nuisance charges are just tacked on to the end of the code violations subject to legal challenge. 

Some online commenters opine that the real problem was criminal activity at the house, but as yet there’s been no evidence offered that anyone was ever charged with doing anything of a criminal nature at that house, let alone convicted. Criminal charges are much harder to prove than unpermitted conversion from a duplex to a single family house. 

The bottom line is that it’s much easier to use the police power of the City of Berkeley to effectively seize suspect property and to persuade a court to place it in the hands of a for-profit receiver who would expect to make a tidy sum on the transaction. Nobody but defense attorneys profit from criminal prosecution. 

Speaking of rumors, for years it’s been bruited about in Berkeley that the city’s building inspectors could be vindictive if you annoyed them, but also that there were ways of “persuading” them to back off. This kind of hearsay doesn’t prove anything, of course, but if there were any experienced reporters available to look further into this, they might find it rewarding to see if what happened to Powell has happened to anyone else. 

Could his experience represent pattern and practice for some of those who took part? A retired Berkeley City Attorney said online that “I could name (and was involved in) a few others.” What, and when? 

Would all other such instances be disclosed by the City of Berkeley in the interest of transparency? If not, would a Public Records Act request reveal what happened to whom when? 

One source of grief has been a city loan program which some city employee talked Powell into using when the code violation fines started to accumulate, which he was unable to repay. How has this program worked for others? 

And a few more questions: Is a receiver paid a flat fee, hourly or a percentage of the cost? How much contact has there been between the receiver and the City of Berkeley’s Planning Department in other situations? 

What contractors have been employed in actions like this one? Do they often bid low and then up-sell? 

What’s the record of the city building inspector who signed the list of charges about problems with Powell’s property? Has anyone else complained about his work? 

Who made the original complaint against Powell? Have they complained about anyone else? 

Leonard Powell is lucky—he is surrounded by neighbors and friends who, far from registering complaints against him, have been writing letters on his behalf and going to court with him. His activist neighborhood association, Friends of Adeline, recently raised close to $80,000 in a Go Fund Me campaign to fill the gap between the mortgage he might expect to qualify for and what the house is judged to be worth if he must buy it back from the receivership. Their enthusiasm casts doubt on commentariat claims that his house was a nuisance to his neighbors. 

One of the Friends recognized comedian W. Kamau Bell in a café and buttonholed him with the story. He offered to help, put it out on his Twitter feed, and contributions came from all over the world. Some familiar names were spotted: Daveed Diggs was on the list, as was, inexplicably, the receiver who’s mixed up in all this, who tossed $50 into the pot. [Full disclosure: I made a small contribution.] 

There will be another, hopefully final, court date on Monday. Things are looking pretty good for Leonard Powell, but the story shouldn’t end with him. It’s not right for the City of Berkeley to use its legitimate police power to insure safe housing as a weapon against other kinds of perceived problems like drug sales, and certainly not in order to turn a profit for anyone involved. 

How many Leonard Powells are out there who are not so lucky in their friends? Using charges of code violations is a traditional way to take down someone you have a grudge against, but it’s not the way Berkeley should treat its citizens.