Oakland City Council used illegal votes to change city ordinances

In December, the city council relied on tie-breaking votes from recalled mayor Sheng Thao, a violation of city and state law. A lawsuit may be filed against the city.

Photo credit: Sanfranman59

Commentary submitted by Retired Judge Brenda Harbin-Forte and Seneca Scott

On December 17, 2024, Oakland City Council passed two contentious ordinances. Both were passed with a tie-breaking vote from former mayor Sheng Thao, who had been recalled 12 days earlier in the general election by 60.62% of voters. The Alameda County Registrar of Voters certified former mayor Thao’s recall on December 5, legally ending her term.

However the city claimed she remained in office until December 17, allowing her to cast the tie-breaking votes. It is our position, based on a close reading of city and state law, that Thao was a private citizen on December 17, with no more authority to cast a tie-breaking vote than any other resident of the city.

California Elections Code Section 11382 states that an elected official is removed from office as soon as a majority of voters vote yes to recall her.

If a majority of the votes on a recall proposal for a local officer are ‘Yes,’ the officer is removed, and the office shall be vacant until it is filled according to law.

State law governs the recall of elected city officials, unless it is superseded by provisions of local law. In the case of Oakland, the city charter explicitly defers governance of recalls to state law:

Section 1104. Initiative, Referendum and Recall. The People of the City reserve to themselves the powers of initiative and referendum and the recall of elected officials, to be exercised in the manner prescribed by general law of the State.

Therefore, the city must follow state law, which directs that the office of mayor is vacant upon certification of a majority of “yes” votes. We maintain that her tie-breaking votes on December 17 are invalid and the two ordinances were therefore not passed.

The council votes are being challenged

The two ordinances in question were controversial in the community and gained only 4 ‘aye’ votes in the council. Without the disputed tie-breaking vote from the mayor, both would have failed. The first ordinance revised Oakland’s Local and Small Business Enterprise program by removing the requirement that small businesses be headquartered in Oakland to qualify for city benefits. The second ordinance substantially reduced the banking of rent increases by rental housing owners, and imposed new eviction limitations on owners in arrears on their business license taxes..

The actions of the city council and city attorney have prompted challenges from the East Bay Rental Housing Association, Oakland NAACP, the recall committee, and a coalition of small business owners. They raised concerns in letters to interim mayor Kevin Jenkins, all members of the city council, the city administrator, and the city attorney, which challenged the validity of Thao’s votes. If these challenges end up in court and are successful, the council may be forced to reintroduce and re-vote on both measures.

Flawed reasoning

The city makes a flawed argument in order to retain Sheng Thao as mayor beyond the date of her recall. It was based on an opinion that city attorney Barbara Parker sent to mayor Sheng Thao, council president Nikki Bas, and city administrator Jestin Johnson on November 27. The opinion asserted that Thao would remain in power until the city council declared the election results and an interim mayor was appointed.

The city attorney’s reasoning pointed to Oakland’s city charter Section 303, which provides the process for the city council to declare vacancies when they are caused by resignation, death, incompetence, judicial procedure, criminal conviction or forfeiture. However, that section does not address removal by recall vote, because it is uniquely addressed in Section 1104 — where the charter defers to state law on the matter. State law describes no dependency on council declaration in order to effect the removal of the mayor from office.

New city attorney, Ryan Richardson, subsequently issued an addendum to the opinion to justify the city’s position. He argued state law is not “self-effectuating” and therefore depended on the city council’s declaration of election results to vacate the office. Without further explanation, he cited sections 10262-10263, 15372, and 15400 as the basis of this view.

The cited provisions require the city council (the “governing body”) to adopt a resolution that declares the results of the election after they have received the certified vote tally from the elections official. The provisions do not say that the date of recall certification is determined by the city resolution. Specifically, Section 10262(b) mandates that the city clerk shall certify the results of the election upon receipt from the ROV.¹ That receipt by the city clerk occurred on December 5, as noted in Richardson’s addendum. Once certified, the “Yes” votes for recall are counted, and the office of mayor is vacated per Section 11382 of state code.

Section 10262(b) subsequently directs the city council to declare the certified election results before installing newly-elected officers at the next regular council meeting “or at a special meeting called for that purpose.”² The purpose of the declaration is solely to enable installation of the newly elected officials, and effect other actions by the city. Its purpose is not to validate, invalidate, or delay the certification of votes and removal from office.

There is no provision in the city charter or state law for a recalled local official to continue exercising power after election results are certified. Notably, District Attorney Pamela Price, who was recalled in the same election, vacated office immediately upon certification, following the same legal standard.

Moreover, the addendum does not explain why the city needed to take twelve days after certification of the vote to declare the results. The city knew in November that a majority of voters had recalled Sheng Thao. If it felt (incorrectly) that a council declaration was required to effect the will of the voters to vacate the office of mayor, the city did not act expediently to make such declaration. It did not set a special meeting for December 5 to declare the election results, as it could have, nor did it make the declaration at either of the two special council meetings held between December 5 and December 17. It is also notable that at the December 17 meeting, the declaration of the recall vote was placed at the end of the agenda, instead of at the beginning. These failures and missteps suggest that the city intentionally dragged its feet in an attempt to falsely delay the will of the voters.

In relying on Section 10262(b) to justify delaying Sheng Thao’s removal, the addendum reveals that the city violated elections law in yet another way. That statute mandates that at the December 17 meeting, the city was required to swear in the newly-elected council members, city attorney, and others, and was required to provide them certificates of election, as required by Section 10263. Those obligatory duties were not carried out until January 2025. The city can’t have it both ways.

No matter how the city chooses to analyze it, it cannot escape the logical and rational conclusion that December 5 is the day the certified count of “Yes” votes was received. And it was the day that the city clerk was required to certify those votes to the city council, as acknowledged by the city attorney. Pursuant to Section 11382, that date is the trigger for removing Sheng Thao from office.

An unacceptable precedent

By permitting Thao to vote on these ordinances after she was recalled and removed from office, the city council ignored city and state codes, and past precedent. Does their behavior imply that the democratic will of the voters can be overridden by council inaction? If Thao’s votes are allowed to stand, does this set a precedent where recalled officials can continue to decide policy under questionable legal interpretations?

Beyond the legal concerns, the political ramifications are significant. The recall process exists to provide voters with a mechanism for accountability, and to restore public trust in government. Allowing a recalled official to continue making binding policy decisions, in violation of state and local law, directly undermines that trust. Public confidence in Oakland’s governance is already low, and this episode only reinforces that skepticism.

Interim mayor Jenkins and the city council now face a choice: either uphold the rule of law or risk setting a dangerous precedent where elected leaders are allowed to ignore the law and the democratic process at will. The solution is clear—the council must rescind these ordinances, reaffirm the removal of Sheng Thao from office on December 5, and ensure future recall elections are enforced without political interference.

City Charter Section 1104 gives the power of recall to “The People of the City.” If the city attorney’s incorrect legal analysis is allowed to stand, that power is rendered meaningless. Oakland’s leaders must act to correct this misstep³ — not just for the sake of this case, but to protect the integrity of democracy itself in Oakland.

Tags: City Council, Elections, Commentary, Recall, City Attorney

1. Section 10263(b) applies in the case of a consolidated election, which is when the city and county elections are held together and conducted by the Alameda County Registrar of Voters (ROV). In that case, the ROV is the “election official”, and the Oakland city clerk is the “city elections official.”

2. Any suggestion by the city attorney that the city clerk and city council had additional time to act on the recall vote, because this was a consolidated election, is based on misapplication and conflation of the two step process spelled out in Elections Code Section 10262(b), which provides:

For a consolidated election, the city elections official, upon receipt of the results of the election from the elections official conducting the election, shall certify the results to the governing body which shall, no later than the next regularly scheduled city council meeting following presentation of the 28-day canvass of the returns, or at a special meeting called for this purpose, comply with the applicable provisions of Section 10263.

Under this statute, the first step was to have been taken on December 5, when the ROV published its certification of the votes on the recall. That same day, in compliance with Elections Code Section 10262(b), the city clerk was required to have certified the results to the city council, which then removed Thao from office, just as recalled District Attorney Pamela Price was removed that day. Neither the city clerk nor the city council had authority to leave Thao in office until some later date.

The second step after the city clerk certified the results, was for the city council to hold a regular or special meeting, to adopt a resolution, swear in newly elected officers, and otherwise comply with Elections Code Section 10263, which provides:

Upon the completion of the canvass and before installing the new officers, the governing body shall adopt a resolution reciting the fact of the election and the other matters that are enumerated in Section 10264. The governing body shall declare elected the persons for whom the highest number of votes were cast for each office.

(a) Except as provided in subdivision (b), the governing body shall meet at its usual place of meeting no later than the fourth Friday after the election to declare the results and to install the newly elected officers.

(b) For a consolidated election, the governing body shall meet at its usual place of meeting no later than the next regularly scheduled city council meeting following presentation of the 28-day canvass of the returns, or at a special meeting called for this purpose, to declare the results and to install the newly elected officers.

3. Oakland’s leaders must appreciate that these ordinances have a cloud of illegitimacy hanging over them. There were 86,565 Oaklanders who voted to recall Sheng Thao — voters whose will seems to have been manipulated to political ends. The new city council should proactively repair trust by demonstrating their respect for the law and voter will. They can set these ordinances aside and let them come back up for a new vote. If the ordinances pass the next time around, then so be it. The council has nothing to lose by taking this action, and much to gain because it avoids the time and expense of having this issue resolved against the city in court, and it shows their commitment to law and democracy.