It happened so quickly and garnered such cursory media coverage that it was easy to miss. But San Jose Councilwoman Maya Esparzaâ€™s recusal last week from a discussion about rent control ignited an important debate about who gets to shape city policy.
First, a recap.
On Feb. 5, six members of the City Council voted to authorize a study about whether the Ellis Act discourages new development. Under the Ellis Act ordinance, developers that raze old rent-controlled properties must put at least half the new units or the number of apartments removed from the marketâ€”whichever is greaterâ€”under price stabilization.
Before councilors heard the item, Esparza announced that sheâ€™d sit this one out because she lives in a rent-controlled apartment. Mayor Sam Liccardo, who announced her recusal from the item he placed on the agenda, seemed a bit taken aback. As did several members of the public in the audience that night who wondered why the same rationale didnâ€™t apply to the bodyâ€™s resident landlord, Councilman Johnny Khamis.
City Attorney Rick Doyle offered a brief explanation that night. That basically, because several rent-controlled tenants who work in the cityâ€™s housing division had to recuse themselves from working on rent control-related policies, Esparza should be held to the same standard.Â On Twitter, Khamis rationalized his inclusion in the vote by saying he doesnâ€™t own a rent-controlled property (rather, he rents out a single-family home to one tenant). The few other renters on the council were allowed to weigh in on the Ellis Act item last week for the same reason: because the policy up for discussion applied specifically to rent-controlled properties.
All of that seems consistent with the way San Jose has interpreted the Fair Political Practice Committee (FPPC)â€™s conflict-of-interest rules for the past 18 months, when the city began modernizing local tenant protections for the first time in decades.
But it could change. Especially now that a complaint filed by Silicon Valley De-Bug tenant rights activist Liz Gonzalez may bring the issue before the cityâ€™s Ethics Commission.
Doyle, who told San Jose Inside that he advised Esparza to abstain from last weekâ€™s vote â€śout of an abundance of caution,â€ť said the District 7 repâ€™s induction on the council has prompted his office to reconsider its take on FPPC recusal rules.
â€śIâ€™m asking my staff to revisit this issue, to give advice about what if anything she needs to recuse herself in the future,â€ť he clarified. â€śThe council will decide what to do with it, but it is something weâ€™re looking into.â€ť
Under FPPC rules, not all conflicts of interest preclude public officials from participating in a government decision. There are two limited allowances: one being that the official is legally required to participate and the other involving something known as the â€śpublic generally exception.â€ť That is, if the officialsâ€™ interests are indistinguishable from the public at large, then he or she can deliberate on the matter and cast a vote.
Itâ€™s up to each jurisdiction to determine the specifics of that threshold if it goes above and beyond the one set by the FPPC.
Last year, Palo Alto Mayor Liz Kniss recused herself from a vote on tenant protections because her family has a financial interest in some rental properties in the city. Several months prior, a landlord in Mountain View tried unsuccessfully to get Rental Housing Committee member Emily Ramos ousted from her position because of her tenancy in a cost-stabilized apartment unit.
A Glendale councilman last year abstained from a vote on freezing rent hikes because he owns apartment buildings. A few year prior, the issue came up in Richmond when Mayor Tom Butt, who owned three rental properties at the time, angered tenant advocates by refusing to recuse himself from voting on rent control policies.
Jo-Ellen Pozner, an assistant professor of management at the Santa Clara University Leavey School of Business who studies governance ethics, said the appearance of conflict should be enough to merit recusal. And the appearance of a double standard should be enough to merit recusal of both landlords and tenants on the council. Ideally, the city would have a detailed enough rationale to justify it either way, she added.
â€śThe optics arenâ€™t great,â€ť Pozner said in a phone interview. â€śThatâ€™s why the best practice would be to have a strong policy on recusal.â€ť
Hammering out the details of that policy can be tricky, not least because councilors,Â as residents of the city they represent,Â should have a vested interest in the policies they impact. Whether that interest presents a conflict, however, is a matter of degree.
Had Esparza voted against the Ellis Act analysis last week, it still wouldnâ€™t have been enough to change the outcome. Only four council membersâ€”Raul Peralez, Sergio Jimenez, Magdalena Carrasco and Sylvia Arenasâ€”opposed it. (With Esparza, not incidentally, that would have comprised every Latino on the council). But, as Peralez pointed out from the dais that night, Esparzaâ€™s experience as someone who lives in a rent-controlled property could have brought valuable insight to the conversation.
Esparza said she plans to meet with Doyle as soon as possible.
â€śTheir advice at the time was for me to recuse myself,â€ť she said of last weekâ€™s abstention. â€śBut I can tell you that weâ€™re going to do more work on this issue.â€ť