Council President Lynette Gibson McElhaney appears to have violated multiple laws in her attempts to block a housing development from being built next to her home in West Oakland, public records show. Emails obtained by the Express reveal that a member of Gibson McElhaney's city council office staff, while using city equipment, helped her draft an appeal with the Oakland Planning Commission in opposition to the proposed housing project. Oakland law bars councilmembers from using their offices and authority for personal gain. In addition, Oakland's separation of powers law forbids councilmembers and their staffs from attempting to interfere in city department actions, including those of the planning department.
Public records also show that an Oakland architect, who has contracts with the city worth millions of dollars, produced an alternative design for the planned housing project on Gibson McElhaney's behalf. The architect, Morten Jensen of JRDV Urban International, also personally appeared before the planning commission to support Gibson McElhaney's appeal of the housing project. However, Jensen did not bill the councilmember for his work, thereby raising questions as to whether Gibson McElhaney illegally accepted gifts from a government contractor.
Finally, Gibson McElhaney effectively stalled the housing development last December by demanding that the planning commission conduct a procedure known as a Crime Prevention Through Environmental Design review, or CPTED, on the project. The planning commission has not required other projects to undergo CPTED inspection by an Oakland police technician, but Gibson McElhaney insisted on such treatment.
Gibson McElhaney's actions involving the housing development come at time when the councilmember has been under fire for her failure to file campaign finance reports in a timely manner and to pay more than $150,000 in federal income taxes from 2006, 2008, and 2009. The Express has also reported that Gibson McElhaney has been involved in house-flipping schemes for profit in Oakland — both personally and through her nonprofit — at a time when she was publicly decrying the dangers of gentrification and real estate speculation.
Gibson McElhaney's opposition to the housing project next to her home is well known within Oakland City Hall. On April 2, 2014, developer Robert Brecht received approval from the city's zoning administrator to build five townhouses at 530 32nd Street. The parcel previously held a dilapidated multi-story house, which Brecht tore down.
But Brecht's plans were appealed on April 14 by Tanya Boyce, a former City of Oakland planner working as a private agent for Gibson McElhaney and her husband, Clarence McElhaney. Boyce also used to work as a planner for the City of Richmond, where, on at least one occasion, she oversaw project applications for Gibson McElhaney's nonprofit Richmond Neighborhood Housing Services. On behalf of Gibson McElhaney and her husband, Boyce called Brecht's West Oakland townhouses "too dense," citing "too little open space" in the design, and claimed that there would be "shadow and privacy impacts to the [McElhaney's] adjacent home." The appeal also said the project would create "a perfect opportunity for homeless encampment and other illicit activity."
However, emails obtained from the City of Oakland show that two months before Boyce filed the initial appeal, one of Gibson McElhaney's council staffers, Zachary Wald, also sent an appeal letter concerning the townhouse project from his City Hall email account. On February 11, 2014, Wald emailed a copy of the letter to Gibson McElhaney. The letter was addressed to Maurice Brenyah-Addow, the city planner overseeing Brecht's application. The letter called the condo building's design "fatally flawed," and objected to the row design in which the five condo units would face the side of the McElhaneys' home. The letter was signed by Gibson McElhaney.
"This is a violation of the privacy to which I am entitled," the letter stated.
Seven minutes after receiving the appeal letter from Wald, Gibson McElhaney responded in an email: "Nice. Thank you."
Wald immediately wrote back: "I think you should send it from your home email address," to which Gibson McElhaney replied, "Ok."
Later on February 27, Wald, still using his City of Oakland email account, wrote directly to Brenyah-Addow on Gibson McElhaney's behalf asking, "is there any update on the 530 32nd St. project proposal?"
"No report yet," replied Brenyah-Addow. "We have met with the applicant and will look for ways to enhance the project."
In an email to the Express, Wald acknowledged that he "worked" on the appeal involving Gibson McElhaney. But he referred to it as having been a "constituent" issue, rather than one involving his boss, a councilmember. In a separate email, Gibson McElhaney acknowledged to the Express that she had "referred" the issue to Wald. But she also contended that it was a "District 3" matter that impacted several residents. "I did not use my office time to address this matter and instead referred my husband and the neighbors to work directly with Mr. Wald and reach out to the planning staff directly," she wrote.
City, state, and federal ethics laws have long prohibited public officials from directing their taxpayer-funded offices and staffs to work on their behalf for personal issues. In addition, Oakland's longstanding separation of powers law bans councilmembers and their staffs from interfering in the business of the city's executive branch, including the planning department. In 2012, Councilmember Desley Brooks came under intense criticism for allegedly violating the city's separation of powers law when she directed the establishment of a teen center in her East Oakland district. However, the city's Public Ethics Commission lacked the authority at the time to penalize Brooks for her actions.