RECOMMENDATION
Authorize The Council President To Submit Responses On Behalf Of The CityCouncil ToThe 2023-2024 Alameda County Civil Grand Jury Final Report Titled: “Hasty CouncilDecisionOnBillboardsCostsTheCityMillions.”
SUMMARY
The 2023-2024 Alameda County Civil Grand Jury included a report on the Oakland CityCouncil’s decision to approve a relocation agreement for Becker/OFI that created significantcommunitybenefitsandadvancedthepublicinterest.
The Grand Jury report asserts that the Council made a hasty decision that costs the Citymillions of dollars. However, as the administrative record reflects, the City Council consideredthe evidence presented to it ontherecord, boththroughwrittenandoral testimony, fromseveralinterest groups, communityactivists, andnon-profit leaders, citystaff andconsultants, aswell asthebillboardcompaniesthemselves.
In making legislative decisions, the Council must weigh and consider all the evidence in therecord and come to a reasonable conclusion based on substantial evidence in the record. Forexample, for the Civil Grand Jury to claim that the Council simply “disregarded” certain staffrecommendations or evidence that was inconsistent with their ultimate discretionary decisionmaymisstatethefacts.
When making all legislative decisions, the role of the CityCouncil istocarefullyconsider all theevidence, both through written and oral testimony, presented before and during the hearing.The Grand Jury findings assume that the Clear Channel option before the Council was in factfinancially or legally feasible and would have less visual impact, issues that were disputed bycontrasting testimony by Becker/Outfront Media and members of the public at the Councilmeeting. Based on the record, an issue of fact before the Council was whether the ClearChannel proposal was feasible, and whether Clear Channel hadadequatelyinvestedintheCityof Oakland through its past deals. The Council was within their discretionary authority to findthat Becker/Outfront Media proposed a better deal for the City, regardless of whether the1
Mayor’s Office, City Administrator, or City Staff agreed with their decision, solongastherewasevidenceintherecordsupportingtheCouncil’sposition.
With this premise in mind, this Report serves as the Oakland City Council’sofficial responsetothe 2023/2024 Alameda County GrandJuryregardingitsapproval of theBecker/Outfront MediaBillboardproposal.
BACKGROUND
On June 6, 2023, the Oakland City Council unanimously adopted a resolution authorizing aRelocation Agreement for Becker Boards and Outfront Foster Interstate (Becker/OFI) bringingmorethan$71,000,000incommunitybenefitsover morethan40years.
Generally, the City Administration or an individual Councilmember will advancerecommendations to the full Council through either a staff or Councilmember report on aparticular legislative action requested to be taken. TheCouncil must weighandconsider all theevidence in the record and come to a reasonable conclusion based on substantial evidence intherecord. Toclaimthat theCouncil simply“disregarded” certainrecommendationsor evidencethat was inconsistent with their ultimate discretionary decision appears to misstate, or at leastassume, factsthat arenot inevidence.
When making all legislative decisions, the role of the CityCouncil istocarefullyconsider all theevidence, both through written and oral testimony, presented before and during the hearing.Similarly, the Report assumes that the Clear Channel option before the Council was in factfeasible and would have less visual impact, issues that were disputed by contrastingtestimonyby Becker/Outfront Media and members of the public at the hearing. Upon review of theadministrative record, an issue of fact before the Council was whether the Clear Channelproposal was feasible, and whether Clear Channel had adequately invested in the City ofOakland through its past deals. The Council was within their discretionaryauthoritytofindthatBecker/Outfront Media proposed a better deal for the City, even though some, including CityStaff and a consultant, may have disagreed withtheir decision. Thepoint isthat thereneedstobe evidence in the record supportingtheCouncil’sposition. Inthiscase, theCouncil didrelyonsubstantial evidencefromanenormousamount of writtenandoral publictestimony.
The Council also finds it noteworthy that since the passage of the resolution approving theBecker/Outfront relocation agreements, Clear Channel hasfailedtoprovideanyactionablepathtoward thematerializationof their ownseparateoffer, or at theveryleast reasonswhytheyhavenot provided their own separate offer. As such, the City Council has not beenabletotakeanyaction on any purported offer Clear Channel appeared to be ready to make at the time ofCouncil’sdecisionontheBecker/Outfront proposal.
The Grand Jury required responses to Findings 24-9 through 24-13 and Recommendations24-7 through 24-11 of itsreport. Thisreport servesastheCityCouncil responsetotheAlamedaCountyCivil GrandJury.
RESPONSETOFINDINGS
Finding 24-9: The Oakland City Council disregarded expert City staff and an impartialconsultant’srecommendationstoselect Becker/OFI over anoptionthat wouldhavepaidtheCitysubstantiallymoremoneywithlessvisual impact.
Response: Disagreewholly.
2 Explanation:
Finding 24-9 demonstrates a fundamental misunderstanding about the scope ofthe City’s action on the Becker/OFI proposal. The Council was not making achoice between competing offers nor does the Council’s acceptance ofBecker/OFI’s proposal preclude the Council from accepting Clear Channel’sproposal. The two proposals – each on entirely different parcels of privateproperty– were not mutually exclusive. TheCouncil couldhaveaccepted(andcanstill accept) the Clear Channel offer in addition to the Becker/OFI offer subject tolocationrequirementsspecifiedinStatelaw.
The Council remains willing to consider an offer fromClear Channel to relocateexisting billboards and provide other public benefits in exchange for the right tobuild new billboards on other privately-owned land within the City. Furthermore,since submitting a non-binding letter in the midst of the Becker/OFI negotiations,Clear Channel has not pursued further discussions, which lends support toCouncil’s suspicion at the time of the decision that Clear Channel’s non-bindingoffer may not have been feasible. Unfortunately, Clear Channel hasnot submittedany follow-up proposals to relocate billboards for Council consideration.Generally, relocating older billboards in communities of color in favor of moremodern billboards close to the freeway are ideal for the City with certaincommunity benefits also provided. The Council encourages Clear Channel tofollowup on such proposal and to engage the community in that effort similar toBecker/OFI.
Finding 24-10: Out of public view, the Oakland CityCouncil usedanon-competitiveprocesstoselect arevenueproducingbillboardprovider.
Response: Disagreewholly.
Explanation:
The process of approving a relocation agreement is similar to the process ofapproving a use permit and legislatively approved development agreement forprivate development on privately-owned land that also provides communitybenefits. In such a case, the entitlement requires legislative approval and isevaluated on an individual basis for considerations such as physical impact onthe environment, community benefits provided, and overall project viability andbenefit totheCity.
Finding 24-10 also suggests that the approval of the Becker/OFI RelocationAgreement took place “out of publicview.”Tothecontrary, theprocesstovet andapprove the Becker/OFI proposal was conducted through a fully public processbefore the City Council with proper noticing. In fact, members of the publicsubmitted both written and oral testimony on versions of the Becker/Outfrontproposalsat thefollowingseven(7) publicmeetings.
1. December 15, 2020(CityCouncil)2. November 17, 2021(PlanningCommission)3. October 19, 2022(PlanningCommission)4. February15, 2023(PlanningCommission)3
5. April 27, 2023(Rules&LegislationCommittee)6. May23, 2023(CityCouncil CEDCommittee)7. June6, 2023(CityCouncil)8. June20, 2023(SecondReadingof theCityCouncil) While the billboard proposal changed over time, thechangewastheresult of athoroughpublic process where several public meetings were held, and the itemwas consideredwith written and oral public comment at several stages of meetings through the publicmeetingprocess.
Finding 24-11: Out of public view, the Oakland City Council usedanon-competitiveprocesstoselect nonprofit organizationstoreceivebillboardrevenueandfreeadvertisingspace.
Response: Disagreewholly.
Explanation:
See Response to Finding 24-10. The Finding about the City’s selection ofnon-profit organizations is based on a misapprehension and misstatement of thefacts. The City did not select any of the non-profit organizations. Rather, thedeveloper selected themas part of their relocation agreement proposal. Under arelocation agreement, a city may allowthe removal of existing billboards and theinstallation of newbillboardsunder anytermsit believesareinthepublicinterest.(SeeBusinessandProfessionsCodesection5412).
The City Council, in its discretion as the City’s legislative body, has the ability toapprove or deny such applications so long as it is found they meet the publicinterest. The City Council chose to approve the Becker/OFI proposal afterreviewingtheadministrativerecordandhearingtestimonyfromthepublic.
Likewise, as discussed above, the Council remains free to approve an offer to bemade by Clear Channel. As noted, the Council hasnot receivedaformal proposalfromClear Channel since Clear Channel submitted a letter during the final phaseof theBecker/OFI publichearingprocess, approximately18monthsago.
Finding 24-12: An Oakland City Council member should have recused themselves fromconsideration of nonprofit recipients because their spouse has been a board member of oneoftheorganizationsandhasbeenapaidconsultant toanother.
Response: Disagreewholly.
Explanation:
The City’s website advises that, under the Government Ethics Act, a PublicServant cannot make, participate in making, or seek to influence governmentdecisions in which they have a financial interest. In such cases, there is a risk ofbiased decision-making that could sacrifice the public’s interest in favor of theofficial’s private financial interests. To avoid actual bias or the appearance ofpossible improprieties, the public official is prohibited fromparticipating in thedecision. (SeetheCity’sConflict of Interest Guidanceat thefollowinghyperlink.) 4 In this case, there were no known conflicts of interest necessitating a recusal.None of the approvals would have brought any family member of anyCouncilmember anydirect financial benefit.
Finding 24-13: The Oakland City Council allowed lobbyists for billboard companies to haveundue influence over the processbyprovidingcontent andlanguagethat wasinsertedverbatimintoofficial council documents.
Response: Disagreewholly.
Explanation:
The Council used its independent judgment asalegislativedecision-makingbodyin approving the Relocation Agreement. The Council and CED Committee heldpublicmeetingswheretheylistenedtoandconsideredpublictestimony.
In addition, any member of the public may submit proposed language to the CityCouncil at any time duringsuchpublicprocesses. TheCityCouncil hastheabilityto accept, amend, refuse, or ignore any portion of any language it receives fromanyparty.
If, as the Finding claims, lobbyists provided content and language that wasinserted into official Council documents, then it is the Council’s understandingthat such practice is rather commonplace in the formulation of State and localgovernment legislation. For example, with recent State Housing legislation, theState legislature often works with pro-housing lobbyists to propose legislationthat is favorable totheproductionof housingat thelocal level. TheCouncil isnotaware of any lawprohibiting such practice. Infact, thepracticeisrather commoninthecraftingof legislationat theStateandlocal levels.
RESONSETORECOMMENDATIONS
Recommendation 24-7: The Oakland City Council must take into consideration the expertadvice of staff and consultants before passing legislation and resolutions. When staffrecommendations show large differences in potential revenue fromcompeting proposals, suchmatters should not be put on the consent calendar. There must be council deliberation anddebateonsuchitems.
Response: Recommendationrequiresfurther analysis.
Explanation:
As statedabove, theCouncil wasnot presentedwithachoiceof competingoffers,as the offer fromBecker/OFI was not mutually exclusive with the Clear Channeloffer.
In addition, the Civil Grand Jury is incorrect in asserting that the item simplyappeared on the consent calendar. Pursuant to theOaklandCharter, CityCouncilschedules and considers legislation at multiple committees (and in this case, thePlanning Commission) before it reaches the full CityCouncil. Generally, itemsforCity Council consideration must first be considered by the City Council’s Rules5 Committee, which is typically held on a weekly basis unless canceled for somereason, such as lack of a quorum. During Rules Committee meetings, the publicprovides oral testimony as to the scheduling of any item. After considering thistestimony, the RulesCommitteewill determinehowtoscheduletheitem. Whetheran itemis required to beplacedontheagendaasapublichearingor non-consentitem falls within the City’s discretion unless a public hearing is required underStatelawor bytheCouncil Rulesof Procedure. TheFindingdoesnot point to, noris the Council awareof, aStatelawrequiringtheitembeheardasapublichearingon the agenda. Nevertheless, as the record shows, members of the public werepermitted to submit written comments on the record and participated in a robusthearing on the item, wherein speakers were called and allotted the same amountof timeasofferedduringpublichearingstosharetheir perspectives.
Existing practice provides for legislation to be discussed in City Councilcommittees’ public meetings as well as, at times, before the full City Council.Nevertheless, within one (1) year of this response, the City Council will consideradding to the Council Rules of Procedure a requirement that certain legislationthat meets objective standardsbeheardasaNon-Consent or PublicHearingitem.The challenge would be to developobjectivestandardssothat theCouncil knowsexactly which legislation must not be placed on the consent calendar. However,any policy change that may come out of the Council’s consideration is in thediscretionof theCityCouncil anddoesnot appear toberequiredbyStatelaw.
Recommendation 24-8: When choosing providers of revenue-generating resources such asbillboard advertising rights, the Oakland City Council must use a competitive request forproposal with written criteria for selection, submission requirements, deadlines, andhead-to-headcomparisonsof competingproposalsasanalyzedbyexpert staff.
Response: Recommendationrequiresfurther analysis.
Explanation:
All private development on privately-owned land in the City of Oakland, includingresidential, retail, commercial and industrial development, generates revenue forthe City. Such development (with some minimal exceptions) requirestheapprovalof the City through the granting of discretionary development rights, such as thelegislativeapproval of arelocationagreement.
The development of billboards on private property is no different than any otherkind of private development on private property. The Council is skeptical thatrecommendation that it should use a “competitive process” to evaluate privatebillboards is legally permissible or practicable to implement when suchdevelopment is on privately-owned land. Competitive bidding should be used forevaluating proposed developmentsonCity-ownedproperty, for whichtheCityhasexistingmechanismsinplace.
Given the above, there is precedent within the Oakland Municipal Code (O.M.C.)Section 2.42.170 that dispositions of public land for development must bepursuant to a competitive process unless the City Administrator determines that:(1) disposition through a competitive process is impractical, or (2) dispositionthrough a process other than a competitive process is otherwise in the bestinterests of the City; and City Council must adopt findings in support of such a6 waiver when approving any such transaction. (See O.M.C. Section 2.42.170).Thus, if thebillboardproposal involvespublicland, thenthisrecommendationhasalreadybeenimplemented.
The City Council may elect to adopt a local statutory requirement regarding thedevelopment of new billboards on private property; however, further legalevaluation would be needed to determine whether such a requirement would belegally permissible. During Council consideration, the public would have theopportunity to provide written and oral comments at a Council Committee andbefore the full City Council, just aswasdoneduringtheBecker/Outfront billboardproposal.
Recommendation 24-9: When selecting nonprofit entities to receive City resources, theOakland City Council must use an open and transparent process that is accessible to allOakland nonprofits. Selection criteria, submission requirements, deadlines, and head-to-headcomparisonsof competingproposalsmust bemadepublic.
Response: Recommendationrequiresfurther analysis.
Explanation:
The City of Oakland does have a competitive request for proposals process forDirect Community Grants as well as grants from the Department of ViolencePrevention and Oakland Fund for Children and Youth. However, the non-profitsidentified under the Relocation Agreement in the Becker/OFI offer will not receiveCity resources through the proposal. The developer will be providing benefits tothemdirectly fromprivately sourcedfundingonprivateproperty. TheCityCouncildid not choose the non-profit organizationsandisnot providingthesenon-profitswith funding. Within one (1) year of this response, the Council will consider theadoption of a legislative change to create a non-profit selection process forbillboardrelocationagreements.
Recommendation 24-10: Oakland City Council members must disclose conflicts of interest,including close family connections, prior to awarding contracts, exclusive negotiating rights, orrelocationagreements.
Response: Recommendationrequiresfurther analysis.
Explanation:
There are existing local laws in place that regulate conflicts of interest, namelyOakland Municipal Code (“O.M.C.”) section 2.25.040. Further, the Cityof Oaklandalready provides specific Conflict of Interest guidance to City officials. Forexample, the City’s website advises that, under the Government Ethics Act, aPublic Servant cannot make, participate in making, or seek to influencegovernment decisions in which they haveafinancial interest. Insuchcases, thereis a risk of biased decision-making that could sacrifice the public’s interest infavor of the official’s private financial interests. To avoid actual bias or theappearance of possible improprieties, the public official is prohibited fromparticipating in the decision. (See the City’s Conflict of Interest Guidance at thefollowinghyperlink.) 7 In addition, the Council Rules of Procedure contain a Code of Conduct whichincludes the following: Represent and work for the common good of the Cityandnot for any private interest and Refrain fromacceptinggiftsor favorsor promisesfor future benefits which might compromise or tend to impair independence ofjudgment or action. There were no known conflicts of interest necessitating arecusal. None of the approvals would have brought any family member of anycouncil member anydirect financial benefit.
The City Council is not aware of any legal requirement that a Public Servantdisclose “close family connections,” but it maybereasonablefor theCityCouncilto pass a resolution or other guidance, including an amendment to the CouncilRules, requiring a Public Servant to consult with either the PEC and/or the CityAttorney’s Office if the Public Servant becomes aware that a “close familyconnection” is involved with a party affected by the Public Servant’s decision.Within one (1) year of the date of thisresponse, theCouncil will consider whethersuch a requirement is in the best interests of the City and whether there is afeasible way to codify the requirement, such as by defining what is meant by“closefamilymember.” Recommendation 24-11: In an effort to maintain transparency, the Oakland City Council mustdisclose when lobbyists with an interest in pending legislation provide specific content orlanguagefor official reports, memos, resolutions, or other documents.
Response: Recommendationrequiresfurther analysis.
Explanation:
All lobbyists are registered in the City of Oakland lobbyist registry, and theiractivityisloggedintheCitysystem.
Further, all correspondence between any member of the public, includinglobbyists, and the City Council are a matter of public record, and any contentprovidedtoCityOfficials, for anypurpose, arealwaysopentothepublic.
Within one (1) year of this response, the Council will work with the CityAdministration to consider legislative proposals, including but not limited to anOakland Municipal Code (O.M.C.) amendment or an amendment to the CouncilRules of Procedure, requiring that aCouncilmember disclosewhenlobbyistswithan interest in pending legislation provide specific content or language for officialreports, memos, resolutionsor other documents.
In formulating recommendations for Council consideration, the City Council mayneed additional time to consult with the PEC and/or City Attorney’s Office toensure whether this proposal would be: (1) legally permissible; (2) appropriate tobe proposed through an ordinance or resolution, and (3) the most appropriatelocation for such requirement (e.g., the O.M.C., Council Rules of Procedure).Ultimately, the City Council would need to approve the additional requirementafter consideration, since such policy change would be within the purviewof theCityCouncil. 8 FISCALIMPACT
Thisreport doesnot haveadirect impact or cost.
SUSTAINABLEOPPORTUNITIES
EconomicDevelopment: There are no economic opportunities associated with thisreport.
Environmental Impact: There are no environmental opportunities associated with thisreport.
Social Equity: TherearenoSocial Equityopportunitiesassociatedwiththisreport.
DISABILITYANDSENIORCITIZENACCESS
Approval of these responses to the Alameda County Civil GrandJurywill havenodirectimpact ondisabledandsenior citizens.
ACTIONREQUESTEDOFTHECITYCOUNCIL
To Accept This Report As TheOaklandCityCouncil ResponseToThe2023/2024Alameda County Grand Jury Findings 24-9 Through 24-13 AndRecommendations24-7Through24-11onOaklandBillboards Respectfullysubmitted,
________________________Councilmember KevinJenkins
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