Sacramento’s attorney thinks city manager is breaking rules. Why the secrecy? | Opinion

City Manager Howard Chan violated the City Charter by advancing his own resolution to promote racial equity rather than the one unanimously approved by a City Council committee. That’s the legal conclusion of Sacramento City Attorney Susana Alcala Wood.

But she has only shared this privately, leaving the public unaware of her damning assessment. The Bee obtained a copy of Alcala Wood’s legal analysis of Chan’s actions from a city official. Alcala Wood said in an email that she wouldn’t share her analysis with The Bee.

“You know I cannot comment on any legal advice I may or may not have provided, absent a waiver of privilege from the City Council,” she wrote.

The city government in Sacramento has lost control of itself.

“The City Manager does not have the authority to amend action taken by a council committee action, including a recommended resolution,” Wood wrote on Nov. 14. “That authority belongs only to the council committee per the city council authorization.”

Translation: Chan was wrongly acting as if he were the mayor.

This is the latest in a series of incidents in which the city manager defied city rules or direction. As previously reported, Chan failed to present his annual review to the City Council in a public session last summer. He is the only top city official who didn’t complete council-mandated diversity training. Then he rewrote a racial equity policy after four council members had moved the policy forward for a vote.

Sacramento’s City Charter is clear: Elected officials set policy, and the city manager and his staff execute the policy. Period. No one elected Howard Chan.

“If any other employee, even charter officers, had violated a council rule or council direction, we would have had a closed session conversation about discipline,” outgoing Councilmember Katie Valenzuela said Thursday. “For some reason, that has not happened.”

Howard Chan, Valenzuela said, “is out of control.”

Power, and who wields it

The fundamental issue here goes far beyond a lone agenda item at a council meeting. This is about power and who is supposed to wield it, as well as the proper roles of staff and elected officials. Meanwhile, City Hall has been fixated on the city manager’s soon-to-be-expired contract, which goes up for a vote on Tuesday.

This episode reflects how the council and its city manager are failing Sacramento. Chan has more power than Mayor Darrell Steinberg and the council. Neither the outgoing Steinberg nor his council — save Valenzuela — have had the spine to put a stop to this.

Worse, they have been enabling it by considering a contract extension for a manager who has repeatedly defied them, shrinking the council’s stature at every turn.

The dysfunctional relationship has led to questionable conduct by the city attorney. She has a legal duty to another client — the people of Sacramento.

“Public lawyers have additional statutory duties to act as a check on improper governmental action and represent the people directly.” That guidance comes directly from the League of California Cities. “The public lawyer’s advice as to the legality of the entity’s conduct appears to be intended to act as a check on illegal entity conduct.”

Mary-Beth Moylan, an associate professor at Sacramento’s McGeorge School of Law, said Thursday: “If the city attorney or any other city official becomes aware of any misfeasance or malfeasance (so any wrongdoing whether intentional or negligent) that might harm the city financially or in terms of operations, there is a duty to report it to the city council. See section 76 of the Charter.” Moylan said she was unfamiliar with the details of this particular incident.

Silence from the city attorney

At City Hall, a debate on racial equity became a classic case of bait and switch.

Council members and community groups had been working for years on how to embed the promotion of racial equity into the inner workings of Sacramento government. Their work on a draft resolution before the Racial Equity Committee was complete on Oct. 29. Then, its four council members (Steinberg and council members Mai Vang, Lisa Kaplan and Rick Jennings) unanimously approved a resolution for full council consideration. The proposal directed Chan to lead this effort in budgeting, including a range of other city activities, and required him to report back annually to the council on progress.

“Staff is never authorized to make substantive changes to council or committee action,” Wood privately wrote in the email.

Yet that is exactly what Chan did.

When the full council was set to deliberate on the resolution on Nov. 12, the committee’s actual recommendation was nowhere to be found. Instead, Chan had placed his rewritten version on the agenda. The new version had completely eliminated Chan’s direct role in promoting racial equity.

Instead, Chan inserted some meaningless gibberish such as: “The council commits to prioritize comprehensive and sustained transformation of all the institutions, systems, policies, practices and contracts obstructed by structural or systemic racism in the City of Sacramento.”

Visibly upset, Vang, chair of the Racial Equity Committee, called for a delay in action until this past Tuesday so that the council’s own recommendation could be heard.

Again, Chan placed his alternate recommendation on the agenda for that evening. But just as the council took up the matter, Vang announced that Chan was withdrawing his proposal, leading to the unanimous approval of the council’s own recommendation.

“I think it was a pre-emptive move on his part,” Valenzuela said. By then, at least some council members knew that what Chan had done was a violation of how the city is supposed to do council business, she said. “I think he knew that somebody was going to call it out.”

And so Valenzuela did.

Speaking at the council meeting, Valenzuela said, “I believe a really dangerous precedent is being set,” Valenzuela said. “The original resolution was approved by a committee of this body. But editing a resolution after it was voted on … is a violation of our charter and our rules on how we govern.”

Chan said nothing in response.

Alcala Wood, the city attorney, said nothing. It falls to her office to ensure that the city obeys its own rules.

And she said nothing.

Outgoing councilmember was only one to speak up

Valenzuela does not blame the city attorney for the root of this problem. She blames the City Council itself. “This form of government only works if the council demonstrated an ability to hold our staff accountable,” Valenzuela said.

But when it comes to Chan, the mayor has let him run wild. So has the council.

“It’s not that (Alcala Wood) doesn’t have concerns with what Howard’s doing,” Valenzuela said. “It is that she doesn’t have faith that the council would defend her.”

Valenzuela is right.

Several council members say that Chan, who appears to be undeterred, has been pushing for his contract to be considered by the outgoing council at its 2 p.m. meeting this Tuesday. This is no time for the old council or the new one that gets installed three hours later to extend this wayward manager’s contract.

Alcala Wood should immediately release her legal opinion about Chan’s recent behavior to the public she serves. Steinberg should request that she do so as one of his final actions. If Chan attempts to stay in his position, the new council should hold a closed session on his performance. Moylan also raises the option of an investigation by the city’s Ethics Commission, should someone file a complaint.

The council has let itself lose control of the city. Tuesday’s meeting is the time to take it back.

This story was originally published December 7, 2024 at 5:00 AM.