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2020-06-02 Special Meeting MinutesSpecial Meeting Alameda City Council June 2, 2020 1 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL TUESDAY- -JUNE 2, 2020- -6:59 P.M. Mayor Ezzy Ashcraft convened the meeting at 7:14 p.m. and led the Pledge of Allegiance. ROLL CALL - Present: Councilmember Daysog, Knox White, Oddie, Vella and Mayor Ezzy Ashcraft – 5. [Note: The meeting was conducted via Zoom.] Absent: None. AGENDA ITEMS (20-362) Urgency Ordinance No. 3281, “(A) Declaring the Existence of a Local Emergency in Response to Civil Unrest; (B) Ratifying the City Manager’s Decision to Order a Curfew on June 1 and 2, 2020 (Ending at 5 a.m. on June 3); (C) Provide Direction Extending, Modifying, or Discontinuing the Curfew; and (D) Authorize Staff to Take Further Action to Implement This Declaration.” Adopted. The Assistant City Manager gave a brief presentation. The City Manager stated the issue is difficult; restricted rights cause serious issues that need to be looked at carefully; he recommends Council provide narrow direction. The City Attorney stated that he has reviewed the lega lity of the City Manager’s declaration and that it is fully compliant with all applicable laws. Councilmember Daysog stated that he received a letter; inquired the City’s response to people who can only shop after 8:00 p.m. Mayor Ezzy Ashcraft inquired whether businesses are also covered by the curfew. The City Attorney responded in the affirmative; stated businesses will not be open after 8:00 p.m. Councilmember Oddie inquired the interplay of the City’s curfew expiring while still under the County curfew. The City Attorney responded unless the County order changes or a judicial decision alters the order, the County order purports to apply to all incorporated cities and unincorporated County areas; stated the County order would still apply within th e City of Alameda; an 8:00 p.m. curfew would still apply even if Council discontinues the local curfew. Special Meeting Alameda City Council June 2, 2020 2 Councilmember Oddie inquired whether Council would be forfeiting the authority of the City Manager and Police Chief without a curfew. The City Attorney responded in the negative; stated the City Manager will remain the Director of emergency services; any California officer could enforce the curfew within the County; law enforcement decisions are made by the Police Chief , which allows discretion of resource deployment; noted, pursuant to mutual aid, Alameda County Sheriffs will also have jurisdiction of enforcement of the order. Councilmember Vella stated Alameda is not the only City grappling with the inquiries raised by Councilmember Oddie; inquired whether other cities are challenging the authority of the County ordinance; expressed concern about overall enforcement of the curfew and for those confused about the City versus County curfew. The Police Chief responded the more restrictive order would rule; stated there is a significant public safety concern occurring related to looting and burglaries; should Council not extend the local curfew order, the Police Department would continue to operate under the County order until its expires on June 5th. Mayor Ezzy Ashcraft inquired whether Council could delegate to have staff figure out the best course of action. The City Attorney responded Council may provide direction to authorize staff to take necessary actions to further and implement the declaration of local emergency with a report back to Council. Councilmember Vella inquired whether staff will follow up on the implications of other cities which are challenging the County order. The City Attorney responded that he is not aware of any cities being prepared to file legal challenge; stated certain local jurisdictions and officials believe the order does not apply and the matter is being monitored; continuing dialogue is happening with the County on the topic. Vice Mayor Knox White stated Council is in an awkward position; that he has struggled with the matter; expressed concern about the County Sherriff implementing a curfew on the County level with little input for such a long period of time; expressed support for receiving a report of any Police action in Alameda related to the curfew order by tomorrow morning; stated a significant action being taken. Councilmember Vella inquired whether Council could adopt the emergency declaration and not continue the curfew; requested clarification of how long the emergency declaration would be in effect. The City Attorney responded the emergency declaration does not currently contain an end date; stated Council may set an end date or allow staff to bring back a Special Meeting Alameda City Council June 2, 2020 3 recommended end date; noted should Council adopt the emergency declaration and direct staff to discontinue the curfew, Council must decide whether to allow staff to reinstitute a curfew in the future, if needed, or direct staff not to institute a curfew in all circumstances. The City Manager stated that he recommends the longest period for a declaration of emergency for this event to be through June 16th, the next scheduled Council meeting. Stated there is not enough data to make an informed decision; there are concerns about burglaries and looting; expressed concern about decisions being made without data; stated that she does not support extending the curfew: Elizabeth Douglas, Alameda. Stated that he does not support extending the curfew; there is no basis of fact for any emergency in the City; the community should be encouraged to come together and heal; urged being better; discussed defunding and demilitarizing the Police Department: Josh Wyen, Alameda. Public Comment Read into the Record: Urged Council to consider reflecting the curfew through June 5th: Linda Asbury, West Alameda Business Association (WABA). Urged Council to rescind the curfew order immediately; stated curfew orders do not keep people safer; discussed opposing Police violence; urged Council to oppose the curfew: Rob Szykowny, Alameda. Vice Mayor Knox White stated that he appreciates understanding the reasoning behind the declaration; inquired whether the incidents with Alameda Police Department could be discussed. The Police Chief responded the Department did not know of any upcoming violence, crime or looting within the City; stated concerns were raised; outlined incidents of looting Sunday evening, including arrests; stated the Department is determined to keep the City safe; incidents from the previous night were significantly lower; many surrounding cities are still experiencing incidents. Vice Mayor Knox White inquired whether mutual aid is available. The Police Chief responded cities in need make a request through the Office of Emergency Services of Alameda County and authorization for deployment of mutual aid resources are provided; stated an Oakland request made within the County resulted in 14 Alameda Officers sent on Friday night, and 12 on Saturday; no officers were provided Sunday night due to activity in Alam eda. Vice Mayor Knox White inquired whether Alameda was unable to provide or receive aid on Sunday. Special Meeting Alameda City Council June 2, 2020 4 The Police Chief responded a request was made for mutual aid; stated Berkeley briefly provided Police for about an hour. Vice Mayor Knox White stated curfews are a significant event and should not be taken lightly; the Alameda Police Department has been stretched, like surrounding cities; expressed support for extending the state of emergency through June 16 th, allowing the City Manager to declare a curfew on a day-by-day basis based on significant upcoming dates, and a report being submitted in the morning following any curfew related actions; stated that he hopes actions will not be necessary; Council not extending to match the County curfew is a signal to not over-enforce the County curfew; the curfew decision was made too quickly with little input; more input and notification is needed prior to County actions. Councilmember Oddie quoted Benjamin Franklin: “those who give up essential liberty to purchase little temporary safety deserve neither liberty nor safety;” noted New York implemented curfew for the first time since 1943; stated curfew decisions are not taken lightly; outlined a Supreme Court decision related to Governor Newsom’s limitation on churches; stated Alameda has ceded the authority of a public health department to the County; the City has not ceded its authority to the County on public safety; expressed concern for the Sheriff exerting authority over the City of Alameda; stated Alameda is a sovereign and Charter City, which is not subject to the County; that he is not supportive of giving up any authority to the County Sheriff; the Sheriff has a history of being heavy handed; expressed support for giving the City Manager and Police Chief temporary authority to keep the City safe; expressed concern about the matter being prone to litigation; stated Alameda only has five ways on and off the Island and is not inundated by access; expressed concern about a two-week duration; stated there will be upcoming days of protest and unrest and the declaration being extended until Sunday morning is understandable; expressed support for the staff recommendation; stated that he trusts City Officials and he is an Alamedan. Councilmember Vella stated a number of other cities are considering various curfews and whether or not the County should have jurisdiction over cities; actions being taken are a fast-slide into fascist scenarios; expressed support for the City Manager’s implementation of the curfew; however, she is opposed to curfews; stated that there has been no explanation of why curfews are viewed as effective; the shelter in place order conflates the issue and fewer people are out; expressed concern about the number of exemptions under the curfew, namely people going to and from work; stated many people of color are terrified of being pulled over; tensions are heightened; curfew may give cause to specifically pull over people of color; a number of business owners have secured their business due to fears; Council should move from a place of data; should a curfew be imposed, it needs to be data-based with actual information; that she is frustrated Council is taking extreme steps to protect property when the conversation should be about Black Lives Matter; noted much of the unrest is due to governments failing to hold people accountable for police brutality and actions that are not just; expressed support for the declaration of emergency; stated that she does not support Special Meeting Alameda City Council June 2, 2020 5 further curfews; more direction and guidance needs to be provided; expressed support for knowing which factors will be looked at for enforcing curfew and for more information on how the curfew will be helpful in deterring crime; stated that she does not condone vandalism or looting; her number one concern is the safety and protection of human life; that she does not want to spend Police resources on enforcing the County Sheriff’s curfew order; noted that she would like to know about citations being given and resources spent. Councilmember Daysog stated these are historic times; the looting and mayhem in neighboring cities indicates that the City needs to be safe; expressed support for the emergency declaration until June 16th and the curfew; stated there is an opportunity to look at the curfew on a case-by-case basis; many business owners around Webster Street have concerns about activities occurring in neighboring cities and Alameda should have the flexibility to respond at a moment ’s notice; a curfew is a resource; the event in Minneapolis is tragic; Alameda’s Police force understands how to respond to situations in a culturally appropriate manner as possible; Council owes residents the action of being as proactive as possible in allowing the curfew; noted that he would like everyone to be safe; stated the curfew can be implemented on a case -by-case basis for the right reasons. Mayor Ezzy Ashcraft stated personal liberties are being balanced; that she has zero interest in protecting looters; that she does support peaceful protests; there have been burglaries at cannabis dispensaries in neighboring cities with one involving an armed carjacking; citizens could be hurt; personal safety of residents and local businesses must be considered; businesses and merchandise has not been prioritized over personal safety; the City is looking at allowing businesses to open again; Council is ensuring the City is safe for residents, visitors, workers and business owners; noted that she received correspondence inquiring about getting tough; stated that the C ity has been working very hard to keep everyone safe during the COVID -19 crisis; City officials have implored for Federal aid, but it has not been received; the decision to implement a curfew was not taken lightly; expressed support for the curfew being as brief as possible; expressed support for Vice Mayor Knox White’s comments and for peaceful protests. The City Manager stated the factors considered in deciding the curfew were: 1) Council was set to meet in two days, 2) vandalism was occurring in surrounding cities, Targets in Alameda was a potential site for looting, and 3) other surrounding cities were implementing curfews; the decision was difficult to make; liberties are the foundation of the country; the declaration of emergency is needed in the even t more public safety resources are needed and allows the City to document needs for reimbursement from the federal government through the County; the Council could not provide authority to implement curfew or limit the City Manager to implement a curfew for more than two days. Councilmember Vella inquired how the curfew will create more safety and how those travelling under the exemption will be encountered safely; stated that she would like Special Meeting Alameda City Council June 2, 2020 6 actions taken to ensure no hassle, detainment, or citations occur; the decision to cede authority to three unelected people is a major decision; inquired whether a special City Council meeting may be held in one week to discuss extending the declaration of emergency. Mayor Ezzy Ashcraft stated there is a Council Referral on the agenda for the regular meeting related to special meetings; inquired who is likely to be pulled over during a curfew order. The Police Chief responded matters encountered in the past couple months have been uncharted territory; stated the current matter is also uncharted territory; this is the first occurrence of a curfew in his 31 year career; everyone is still learning how to handle situations; civil unrest has occurred prior, but not to the current extent; much of the activity dropped when the curfew was implemented; his role is to provide public safety for people and property in Alameda, which will continue with or without curfew orders; the Police Department always tries to do the right thing and practice constitutionally sound policing, which includes not profiling and not violating civil rights; noted tickets have not been written since the curfew has been issued ; only a couple of citations have been issued based on the County Health Order; stated education and compliance with the order is the primary goal; fewer calls and fewer cars on the road assists with response times, but does not prevent crimes; stated a curfew will not prevent crime, but crime may be reduced due to the curfew. Vice Mayor Knox White inquired whether an emergency urge ncy ordinance meeting would require 24-hour notice. The City Attorney responded there are two ways to discuss an emergency ordinance: 1) a 24-hour notice, or 2) a one-hour notice with enough severity; stated both instances must be found to have serious public health and safety concerns which require Council to meet under the circumstances. Vice Mayor Knox White expressed support for adding special meetings later in the week on Thursday and possibly Friday to have an hour of space reserved to discuss a potential curfew; stated the meetings can be cancelled if needed; noted Thursday is the next likely day for a curfew order; stated that he is not confident the County has authority and would prefer the City of Alameda and Council to take action; Council should proactively solve concerns. Mayor Ezzy Ashcraft inquired what would be accomplished by a special meeting should the County curfew order remain in effect until Friday at 5:00 a.m. The City Attorney responded Council could call an emergency meeting with 24-hour or one-hour notice; stated should Council wish to schedule an emergency meeting, it will be helpful for staff to provide emergency basis to justify the calling of an emergency meeting; time may be reserved if there is not enough factual basis at t his time to call an emergency meeting within 48-hours. Special Meeting Alameda City Council June 2, 2020 7 Vice Mayor Knox White inquired whether the discussion of the curfew could be continued to a date and time specific, on Thursday. The City Attorney responded in the affirmative; stated the item may b e continued to a time certain. *** (20- ) Vice Mayor Knox White moved approval of adding an extra minute of speaking time. Councilmember Oddie seconded the motion, which carried by the following roll call vote: Councilmembers Daysog: Aye; Knox White: Aye; Oddie: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 5. *** Councilmember Vella inquired the actions Council may take to challenge the authority of the County Sherriff to implement a curfew. The City Attorney responded Council could agendize the item as soon as possible for Council to direct the Attorney’s office to take legal action. Mayor Ezzy Ashcraft requested clarification whether the inquiry is in relation to the curfew in place until Friday morning, or an extended curfew. Councilmember Vella responded if Council votes not to extend the curfew and not recognize the existing curfew. The City Attorney stated Council may take a vote to convene in closed session and discuss the potential initiation of litigation. Councilmember Oddie expressed support; stated there is still fear among people of color doing day-to-day things; expressed concern about what can be relayed to people to help the fear of untoward thing happening; stated emotions are heightened and a strong law enforcement policy is being implemented; questioned what he should tell people of color driving in the City after 8:00 p.m. to help navigate being pulled over. The Police Chief responded valid concerns can be discussed; stated it does not matter what is said, what matters is what is done; the Alameda Police Department has not been involved in a shooting in 15 years; outlined calls and arrests made per year; stated there has been less than 1% of excessive use of force per year; the Department is not perfect and mistakes will be made, but things are being done right; things that are wrong, will be fixed. Councilmember Oddie stated people need to stop calling police on people of color for engaging in regular activities. Special Meeting Alameda City Council June 2, 2020 8 Mayor Ezzy Ashcraft inquired whether Council would like to call a special meeting to possibly bring litigation and should the City Manager have narrow direction; stated Thursday and possibly Friday will be pivotal days; noted the County curfew extends until Friday morning; inquired whether a special meetin g could be considered if the current curfew is extended. Councilmember Oddie inquired whether the curfew is for five days, with the discretion to go to seven days. Mayor Ezzy Ashcraft responded the County curfew is in effect until 5:00 a.m. Friday, June 5th unless rescinded earlier. The City Manager stated that he understands the order to be in effect until 5:00 a.m. Friday; other cities have a curfew through June 8th. The Assistant City Manager stated the curfew order has been attached to the staff report; outlined the order: “the order shall remain in effect until June 5 th at 5:00 a.m. or unless rescinded earlier due to restoration of public order and safety.” Vice Mayor Knox White stated the County Sheriff took the authority and used it; noted the order could be extended at the Sheriff’s will. Mayor Ezzy Ashcraft inquired whether Council could state a special meeting would be called if the County order is extended. Vice Mayor Knox White moved approval of declaring a state of emergency for the ne xt two weeks; granting staff the ability to identify two additional days for curfews; should more than two days be engaged, an emergency Council meeting would be called ; deprioritizing enforcement of the County’s curfew unless the City has declared a curfe w in the City; stated the state of emergency allows the City to collect needed funds from costs incurred. In response to Mayor Ezzy Ashcraft’s inquiry regarding the additional two days, Vice Mayor Knox White stated the memorial service is on Thursday and the funeral is in Houston on June 9th; City and regional Officers have stretched resources; the end goal is not to prove the City should have done something; expressed support for the City Manager and Police Chief taking the decision seriously. The City Manager requested clarification that the extension would be no more than two days cumulatively, to which Vice Mayor Knox White responded in the affirmative. Mayor Ezzy Ashcraft inquired whether Council consideration would not be needed, to which the City Manager responded in the affirmative. Special Meeting Alameda City Council June 2, 2020 9 Councilmember Daysog inquired whether the motion means that the current curfew ends Friday morning at 5:00 a.m. and could be extended for two cumulative days. The City Manager stated the City’s curfew ends Wednesd ay morning at 5:00 a.m.; should a curfew be ordered Wednesday and Thursday, the authority to enact another curfew would cease until returning back to Council. Councilmember Daysog expressed support for the motion. Councilmember Oddie seconded the motion and requested a friendly amendment of the curfew being until Thursday or Friday morning when the County order expires to give the City Manager discretion; stated that he would want Council to discuss any actions taken after Friday morning; expressed concern about an “open season” on Alameda with no curfew while the County curfew is still in effect. Under discussion, Councilmember Vella requested the motion be bifurcated; expressed support for deprioritizing stops when a curfew is not active in Alameda an d the emergency declaration. Vice Mayor Knox White accepted the request to bifurcate the motion. The City Clerk stated the urgency ordinance both declares the emergency and has curfew language; noted the curfew language is in the ordinance, which requires one motion. Councilmember Vella stated enforcement should be deprioritized only if under a County curfew with no City curfew. Councilmember Daysog expressed concern about the need to coordinate with the County on a variety of items related to public safety and for things not being easy; stated that he would support a positive phrase. The City Manager stated that he understands the direction on the emergency declaration, but that is unclear on the number of allowed curfew days. Vice Mayor Knox White stated Council is ratifying Section 4: “The City Manager’s June 1st curfew order is ratified, Council extends the curfew until June 3 rd 5:00 a.m.;” inquired whether there can be a separate vote on Council giving authority as a second ordinance. The City Attorney responded the curfew language should be voted on first to indicate consensus on curfew details, followed by an overall vote on the ordinance with curfew language removed should there not be consensus. The City Manager stated two Councilmembers are questioning whether the vote could be split by taking the curfew out of the ordinance to vote, and then a vote to amend the Special Meeting Alameda City Council June 2, 2020 10 ordinance without the curfew language allowing a second vote adding the curfew language. Vice Mayor Knox White amended the motion to approve the emergency declaration as- written, allowing the current curfew to extend through 5:00 a.m. tomorrow. Councilmember Oddie inquired whether Section 4 of the ordinance will have a period after “City Council,” to which Vice Mayor Knox White responded in the affirmative. Councilmember Oddie seconded the motion, which carried by the following roll call vote: Councilmembers Daysog: Aye; Knox White: Aye; Oddie: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 5. Vice Mayor Knox White moved approval of amending the ordinance to provide the City Manager with the authority to institute no more than two nights of curfew from 8:00 p.m. to 5:00 a.m. during the extent of the state of emergency. Councilmember Daysog seconded the motion. Under discussion, Mayor Ezzy Ashcraft inquired whether the two days are consecutive or any, to which Vice Mayor Knox White responded any two days, consecutive or not. Councilmember Oddie requested the motion be amended adding the following: unless there is further authorization from the Council. Vice Mayor Knox White and Councilmember Daysog accepted the amendment. On the call for the question, the motion carried by the following roll call vote: Councilmembers Daysog: Aye; Knox White: Aye; Oddie: Aye; Vella: No; and Mayor Ezzy Ashcraft: Aye. Ayes: 4. Noes: 1. Councilmember Vella moved approval of Police prioritizing and enforcing non-curfew related incidents and reports when there is no City of Alameda curfew in place. Vice Mayor Knox White seconded the motion. Under discussion, Mayor Ezzy Ashcraft inquired whether the motion is within the authority of Council. The City Attorney responded Council provides overall policy direction and the Police Chief undertakes his enforcement duties consistent with his obligations under State and local law; recommended Council’s policy preference would be that the City prioritizes use of resources to enforce laws other than the County’s curfew order to the extent reasonable; use of resources would allow for that, consistent with the Police Chief’s law enforcement discretion. Special Meeting Alameda City Council June 2, 2020 11 Councilmember Vella and Vice Mayor Knox White amended the motion to the City Attorney’s recommendation. Councilmember Daysog requested a friendly amendment to the motion as follows: unless there is a call for mutual aid, when Alameda Police will travel outside of Alameda; stated the current motion does not allow for mutual aid to be given. Councilmember Vella stated a call for mutual aid could still be responded to; expressed support for prioritization of responding to non-curfew related calls in Alameda and for resources being spent on responding to other reports; the motion does not include a request for mutual aid. On the call for the question, the motion carried by the following roll call vote: Councilmembers Daysog: Aye; Knox White: Aye; Oddie: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 5. Councilmember Oddie moved approval of scheduling a special closed session to discuss legal issues regarding the County Sheriff’s order. Councilmember Vella seconded the motion. Under discussion, the City Attorney stated Council may direct staff to initiate litigation; however, the soonest staff can initiate is tomorrow; the curfew order expires on Friday; the timing for the special closed session meeting is unclear. Councilmember Oddie stated that he hopes the order is removed by next week; it is possible the City can join in other cities challenges. Mayor Ezzy Ashcraft stated that she would like to remain mindful of the amount of work City staff is juggling; the motion is significant; preparing for a special closed session tomorrow would create a lot of work. Councilmember Oddie amended the motion to approve the special closed session b e scheduled Thursday. Councilmember Vella accepted the motion amendment. Councilmember Daysog stated now is not the time to go after the County Sheriff; Council must work with the Sheriff through mutual aid and the motion counters said approach; he does not support the motion. Mayor Ezzy Ashcraft stated that she would like to wait and see what happens after the significant dates occur; expressed concern about blanket orders; having a closed session this week is too soon. Special Meeting Alameda City Council June 2, 2020 12 Vice Mayor Knox White stated that he is willing to schedule a closed session shoul d the current curfew go beyond Friday at 5:00 a.m. with the idea that the meeting could be cancelled should the curfew not be extended; staff resources should not be strained into a conversation at the time of significant events; expressed support for disc ussing the item in two weeks at the next closed session. Councilmember Oddie stated that he is willing to agree to schedule the closed session Thursday if the Sheriff order is extended for any length of time; this is a constitutional issue; conducting the discussion will be good. On the call for the question, the motion carried by the following roll call vote: Councilmembers Daysog: No; Knox White: Aye; Oddie: Aye; Vella: Aye; and Mayor Ezzy Ashcraft: Aye. Ayes: 4. Noes: 1. ADJOURNMENT There being no further business, Mayor Ezzy Ashcraft adjourned the meeting at 9:11 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Sunshine Ordinance.