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Records Indicate that Gibson McElhaney Used Her Council Office for Personal Gain

In an effort to block a townhouse project next to her West Oakland home, the councilmember used her council office resources and staff, and enlisted the help of a city contractor.

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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.

But that changed in the November 2014 election, when Oakland voters approved Measure CC, an initiative that greatly strengthened the power of the Ethics Commission. In addition, on December 9, the city council passed the Oakland Government Ethics Act, which further codified the ban on councilmembers using their authority and office resources for private gain. The Act also strengthened the prohibition on councilmembers and their staffs from interfering in administrative affairs, going so far as to bar councilmembers from communicating with city department officials except through the city administrator, and prohibiting the council from issuing orders to city department staffers.

By having her staffer Wald help draft an appeal letter, and later inquire with city planning staffers about the status of her appeal, and by communicating with city planning staffers through her council office email address, Gibson McElhaney appears to have used the power of her council office to undermine the condo project planned next to her home. However, because the Ethics Act and Measure CC do not apply retroactively, it's unclear as to whether the newly strengthened Ethics Commission will have the power to do anything about Gibson McElhaney's actions.

After the first hearing of Gibson McElhaney's appeal against the townhouse project on August 6, the planning commission declined to rule on the development, even though the proposed project didn't violate any zoning rules or other city regulations — or Gibson McElhaney's claimed right to privacy. Instead, the planning commission directed Brecht and his architect to meet with Gibson McElhaney and her husband to work toward a compromise design. The planning commission set a deadline of December 17 to either approve the condos, or sustain Gibson McElhaney's appeal — which would have killed the project.

Brecht said in an interview that he and his architect Tim Alatorre tried to meet with the McElhaneys on multiple occasions but were unsuccessful. However, in an effort to appease the councilmember, Brecht eventually reduced the project's units from five to four townhouses, and made other significant changes, including cutting the building's height by four feet, thereby making it shorter than Gibson McElhaney's house.

"That hurt me financially," said Brecht about the many architectural changes and the loss of the housing unit.

"Every time, they managed to throw some wrench in the proceedings," said Alatorre. "We had a design that was moving through the staff process. Then the councilwoman contacted [Oakland's director of Planning and Building] Rachel Flynn, and we had to redesign the whole project."

"My project was about as conforming as it gets — by the book," added Brecht.

Reports by Oakland planner Brenyah-Addow confirmed Brecht's assertion. "[T]he project complies with the applicable regulations, and the appeal does not list specific instances of purported error or abuse of discretion by the zoning administrator," wrote Brenyah-Addow in his reports to the planning commission.

On December 3, the planning commission again considered Gibson McElhaney's appeal of the project. According to a video recording of the meeting, Gibson McElhaney told the commission that a CPTED review had not been completed for the project, and demanded one be conducted by an Oakland police technician. However, Gibson McElhaney then told the commissioners that the city had not funded CPTED reviews in the budget, but that she hoped the council would restore funding at some point so that the police department could conduct such reviews. She also said that OPD Technician Eddie Simlin had already "agreed to do the review."

However, city email records show that Brenyah-Addow had been unable to contact OPD's Simlin before December 15 — well after McElhaney claimed Simlin had already agreed to do the CPTED review. Thus the records raise questions as to whether Gibson McElhaney or members of her council staff contacted Simlin about doing a CPTED review. If they did, then that would have violated city laws. Simlin did not respond to requests for comment for this report.

At the December 17 planning commission meeting, Commissioner Jahmese Myers asked why the commission was requiring a CPTED review for Brecht's project when, to her knowledge, no other city projects were made to undergo a review by Simlin. "In the six months I've been here we haven't really used CPTED very much in our design review approval process," said Myers. "So that could be something we need to consider and use with more consistency. We've never used this as a reason to deny or approve a project."

Director of Planning and Building Rachel Flynn said that CPTED reviews have been conducted in the past when an appellant has requested one. "We've called this guy in the past when someone raised the issue and it's important to them." Flynn said of Simlin. She added, however, that she didn't know the frequency with which CPTED reviews by Simlin were required.

It was at the December 17 planning commission hearing on Gibson McElhaney's appeal that architect Morten Jensen spoke against Brecht's condo project design, and in support of Gibson McElhaney's appeal. "I believe, as an architect, looking fairly quickly at the plans that there's a way to configure the same four units in the same density so that they fit better in the typology of this historic neighborhood," Jensen told the commissioners.

Jensen proposed a complete redesign of the project, with the four condos rearranged from a single row into two units facing the front of the street, and two facing the rear of the parcel. Jensen's design removed windows on the sides facing Gibson McElhaney's house, and moved the driveway under the center of the building instead of the side bordering Gibson McElhaney's yard. Jensen also drafted a four-page architectural drawing that illustrated his proposed redesign and provided it to Oakland Planning and Building staff members.

Although the planning commission denied Gibson McElhaney's appeal at the December 17 meeting, the commissioners referred Brecht and Alatorre to the commission's architectural design subcommittee for further review. On January 9, Brenyah-Addow sent Jensen's sketches to Brecht and Alatorre. Oakland Planning and Building director Rachel Flynn followed up ten minutes later with a direct email to Alatorre about Jensen's architectural drawings: "It would be good if your client would at least consider an alternative design that addresses most of the neighbors' concerns." Flynn added: "[J]ust so you know, the neighbors have the right to appeal the Planning Commission's decision to [Alameda County] Superior Court. I don't know that they have or if they will, but they have that right. If an alternative design could be agreed to by all parties, then such an agreement would prevent further actions that could prolong the review/approval process." If Gibson McElhaney and her husband were to appeal the issue in court, it would require the council president to file a lawsuit against the City of Oakland.

Jensen's architectural firm, JRDV Urban International, does considerable business with the city. For example, in March 2012, the council selected JRDV to be part of the master development team to design the massive Coliseum City project. The contract was worth $1.6 million. On December 10, 2013, Gibson McElhaney voted with the rest of the city council to approve a revision of the Coliseum City contract with Jensen's firm worth $240,000.

"Honestly, I have no idea what she voted on," said Jensen about Gibson McElhaney's votes on city contracts involving his firm. "I have no idea how any councilmembers are voting on that. It's not on my radar."

When asked why he spoke against Brecht's project, and provided alternative designs, Jensen said he wasn't doing a special favor for Gibson McElhaney. "I'm a friend and neighbor and generally interested in things like this," he said. "I'm not being hired by anybody — just a private citizen of Oakland."

When asked if he produced the drawings for free, or whether he billed Gibson McElhaney or the planning department for the sketches, Jensen repeated that he was only acting as a private citizen, and that no one solicited him for the work. "You'd be surprised how fast someone like me can produce that. We just want to offer up something."

In her email to the Express, Gibson McElhaney stated that she had not "retained" Jensen to work on her behalf. However, she also acknowledged that she had "asked Mort" to address the planning commission.

Jensen said he has appeared before the commission in the past to offer alternative designs in disputed projects. However, a scan of the commission's archives turned up no example of him doing so. "I would have done it for anyone," Jensen added. "I don't see it as a special thing. I'm a helpful architect."

The newly approved Government Ethics Act also prohibits Oakland officials from receiving gifts if "it is reasonably foreseeable that a Public Servant or candidate could be influenced by the gift in the performance of an official act." By receiving the help of architect Jensen, and by Jensen supplying architectural drawings to help Gibson McElhaney make her appeal, the councilmember appears to have accepted a gift. In addition, McElhaney's enlistment of Jensen to appear before the planning commission on her behalf, and his gift of architectural sketches to help her fight the project, occurred after the Government Ethics Act went into effect.

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