CITY MAY FACE LAWSUIT IN BLOCKING DRUG FACILITY

Public Hearing Bypassed, Critics Say

OAKLAND -- The Oakland City Council skirted the state's open meeting
laws in its haste to block a new Casa Segura drug treatment facility
from opening in East Oakland, according to a national drug reform institute.

Under threat of lawsuit, the Drug Policy Alliance has given the city
30 days to void an emergency ordinance, approved 7-1 on Feb. 5,
requiring new needle exchange facilities and drug treatment centers to
obtain a major conditional use permit.

The permit requires a public hearing and Planning Commission approval
to determine whether the facility is appropriate for the area.

At issue is whether the council violated the state's Brown Act and its
own Sunshine Ordinance, which require topics discussed by the City
Council be publicly noticed 10 days prior to a scheduled meeting --
unless it is an emergency as narrowly defined by law.

The emergency ordinance was drafted by Councilmember Moses Mayne
(Eastmont-Seminary) on Jan. 31, after his constituents vowed to fight
Casa Segura's plans to open a new drug education and treatment center
on Foothill Boulevard. The site is near two schools, and residents
were not swayed by Casa Segura's assurances it would not exchange
needles at the site.

To qualify as an emergency ordinance, the issue must reach the level
where "prompt action is necessary due to the disruption or threatened
disruption of public facilities," or a "crippling disaster" so serious
that it "severely impairs public health, safety or both." In other
words, it just can't wait. Another test requires that the urgent issue
must have come to the attention of the city after the agenda was posted.

The ordinance states several times that drug treatment facilities may
present a "direct threat to the health and safety of the surrounding
community which includes children who may be seriously harmed by
contact with discarded needles."

Mayne knew about Casa Segura's plans last year, calling into question
the sudden need for action, critics say. Councilmember Nancy Nadel
(Downtown-West Oakland) said facility directors also wrote to Mayne on
Jan. 9, well before the agenda deadline.

"I don't understand why he didn't do something in a timely manner
instead of waiting until February," Nadel said at the Feb. 5 meeting.

Councilmember Jane Brunner (North Oakland) also questioned whether the
issue was so urgent it could not go through usual committee hearings.
But Brunner's questions were referred by the chief assistant city
attorney to Mayne for explanation.

City Attorney John Russo said he would be discussing with the council
the demand letter from Thomas Burke, an attorney with the firm of
Davis Wright Tremaine. Burke demands that the council void its action
on Feb. 5, and place the ordinance on a future agenda so the public
can be heard, or face a lawsuit.

Because of the legal threat, Russo would not say whether he thought
the ordinance qualified as an emergency. He said his office was never
asked its opinion, even though a Feb. 5 memo written by Mayne implied
the city attorney had suggested adding new language to the document.

"We have never been asked publicly or privately to this day for our
opinions on this specific case," Russo said. "We were asked what kind
of findings (in general) are necessary in order to declare an
emergency, but they didn't ask if the situation met the criteria."

David Greene, executive director of the First Amendment Project in
Oakland, said it didn't sound as if Mayne's emergency met the timeline
criteria defined by the Brown Act.

"An emergency doesn't speak to an important issue," he said. "All
issues are important. It speaks to timeliness, that something bad will
happen if we don't follow the normal procedures, (that) if we don't
act, it will be too late. The city would not have lost any ability to
act if it had followed the Brown Act. Then the public would have had
the opportunity to weigh in."