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Councilman David Alvarez stayed silent on the Barrio Logan plan update for most of the year for fear of triggering a recusal. Now he and Kevin Faulconer are speaking freely about it. Here’s what changed.
At the beginning of the year, Councilman David Alvarez declined to weigh in on Barrio Logan’s new community plan as it began to take shape.
Doing so, he told me, would force him to sit out an eventual Council vote on the plan.
Now, Alvarez and Councilman Kevin Faulconer, both of whom are running for mayor, are talking freely and publicly about their thoughts on the new plan.
So what changed?
City Council members generally refuse to comment on land-use issues that are expected to wind up before them for a vote.
Councilman Scott Sherman recused himself from a vote on a land-use issue in his district, for example, because he had been a bit too candid at a community group meeting where he signaled his support for a senior housing project in his district.
Here’s how the issue basically works: Sometimes Council members are asked to apply existing policies to a very specific circumstance – like whether to allow a large apartment complex to be built on a lot that doesn’t allow for residential uses. In many ways, they’re acting like judges when they do this. In legal jargon, these are called “quasi-judicial” decisions.
That’s different than when Council members act in their normal capacity of passing broad laws meant to apply to everyone.
So, to ensure individuals receive a fair hearing on these court-like decisions, lawmakers are expected to withhold judgment until the public hearing. If they say something before the hearing that suggests their mind has already been made up, they’re supposed to recuse themselves.
Why, then, are Alvarez and Faulconer suddenly comfortable taking public stands on Barrio Logan’s new plan?
The answer lies in an exchange from the June 19 land use and housing committee meeting. The Barrio Logan plan was being discussed, so Alvarez asked for clarification from Leslie FitzGerald, chief deputy city attorney, on whether he could speak freely on the issue. Here’s the exchange:
Alvarez: Before I make any other comments, I would like to clarify something with our City Attorney, make sure this is not a quasi-judicial item, which would basically preclude us if we made a decision today, potentially making the decision at full council. So I’ll ask our attorney if we could make sure that this is not such an item.
FitzGerald: Yes, Council member, there is no legal issue with expressing your opinions on this particular matter today, because it’s a general update to the community plan, and it’s not tied to a specific project, therefore adoption is considered legislative and not quasi-judicial, so again you are free to express your opinions.
Alvarez: OK, thank you very much, that’s helpful. I’ve been holding back on expressing my opinions on this for a long time.
A number of community plans are going through the update process now, and those plans will eventually land in front of the Council. The fact that Council members are now free to weigh in on the direction of those plans represents a major shake-up.
And another wrinkle with quasi-judicial items: They aren’t subject to mayoral veto. If community plans are not quasi-judicial, that means they are ultimately subject to veto by whoever the next mayor is.
If Barrio Logan’s plan is approved next week or in the next few months, there’d be no mayor around to veto it. City Charter Section 265(i) precludes the Council president from holding veto power.