Court hearing on legitimacy of Alameda County supervisor’s appointment set for next week

Slate of possible post-election appointments fell flat, except for one

COUNTY NEWS

—JUDGMENT DAY—Questions about the legitimacy of Alameda County Supervisor Dave Brown’s appointment nearly a year ago persist.

—Somewhat under the radar was an opinion last June from the California Attorney General’s office that raised serious questions about the legality of the appointment.

—The opinion, written by the chief deputy attorney general because Attorney General Rob Bonta recused himself, bestowed quo warranto status to a group of individuals. This gives them standing to file a lawsuit against Brown.

—Next Tuesday in Oakland, Alameda County Judge Michael Markman will hold a hearing on the matter and whether state government code speaks on the issue of qualification requirements for those appointed to the Alameda County Board of Supervisors.

—Rewind back to December 2021. After the untimely death of Supervisor Wilma Chan a month prior, the Board of Supervisors moved to appoint Brown, her long-time chief of staff to the District 3 seat as a caretaker through the 2022 election cycle.

—Brown vowed not to run for the seat, and he didn’t. As we know, Lena Tam defeated Rebecca Kaplan in the November runoff and will be soon sworn-in.

—The lawsuit contends that Brown was ineligible to receive the appointment because he was living in Contra Costa County at the time. Brown moved to Oakland just days after Chan’s death in early November 2021 and subsequently changed his voter registration to Alameda County.

—Brown currently lives in Oakland, but his wife and two children still live in Contra Costa County. It’s an arrangement that also raises questions about which home is Brown’s primary residence.

—Brown argued against the leave to sue in quo warranto, saying because his time on the Board of Supervisors will cease at the end of this year, the questions surrounding the appointment are moot.

—In an opinion by Chief Deputy Attorney General Venus Johnson it was determined the matter held substantial issues of law and was allowed to move forward, leading to next week’s hearing.

—Under the county government code, a supervisor must live in the county for at least one year prior to taking office. Brown clearly does not meet this requirement.

—But the crux of the case resides in ambiguities within the county’s code as to whether eligibility requirements refer to someone who sought election to the Board of Supervisors as opposed to being appointed to the seat.

—There is also question about the definition of “election” in Alameda County’s government code. Does eligibility requirements for office refer to someone who has literally won an election, or can it also mean someone who was appointed?

—In 2011, this same process to decide the eligibility of an elected officials was successfully used in the East Bay. Dennis Wasepi, who at the time held elected positions at the Castro Valley Sanitary District and Hayward Area Recreation and Parks District, was found to be ineligible to hold both seats.

—Waespi dropped the sanitary district seat and kept the parks seat, which he still holds today.

—If the case against Brown is successful, what could happen next? It’s unclear, but one possibility is that Brown’s votes over the past 11 months could be nullified. Those includes some deciding votes in favor of renters’ rights.

—Whether or not anything comes from this case is unclear. But those seeking the lawsuit may have an uphill climb ahead. Tucked into the chief deputy attorney general’s opinion is the caveat that the court often sides with the holder of the office if ambiguities exist in the case. In essence, the tie goes to the runner.

—No matter how the lawsuit goes, the county ultimately needs to tighten its government code and avoid confusion in the future when it comes to who is eligible to be appointed to the Board of Supervisors.

ELECTION 2022

—APPOINT ME—A little over a month ago, it looked like the East Bay was poised for a post-election appointment spree. There could have been an appointment to the Oakland City Council’s at-large seat, an appointment to the San Leandro City Council, and Fremont mayor.

—But Rebecca Kaplan fumbled away the Alameda County Board of Supervisors race, Bryan Azevedo lost his mayor’s race by less than two points, and Lily Mei was blown out in the 10th State Senate race.

—What’s left for Election 2022 2.0 is the appointment that was virtually assured prior to Election Day. Who will the Hayward City Council select to finish out the remaining two years of mayor-elect Mark Salinas’ council term?

—We knew an appointment was coming after Salinas ran unopposed for the open mayor’s seat vacated by the retiring Barbara Halliday.

—As we discussed last month, scenarios for the appointment were quite simple. If one of the two Hayward planning commissioners on the November ballot—both backed by the city’s establishment—finished outside the top two at-large council race, then the loser would have the leg up for the appointment.

—This is what happened. Planning Commissioner Julie Roche snagged one council seat. Progressive leader George Syrop won the other seat. That leaves, at least on paper, Planning Commissioner Daniel Goldstein as the likely appointee.