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Swearengin-Rudd housing plan accelerates complex turf war on code enforcement

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Steve Brandau and Clint Olivier could turn out to be the best friends Faith in Community ever finds.

Code enforcement would be the matchmaker.

I’ll begin my explanation with a look at the upcoming Fresno City Council agenda.

Brandau and Olivier, of course, are City Council members. They and their five colleagues on Thursday will debate a new law proposed by City Manager Bruce Rudd.

Rudd’s proposal is based on months of work by the City Council-Mayor code enforcement task force. The Bee’s BoNhia Lee last week wrote an excellent piece on the Rudd idea.

Rudd (and, by extension, Mayor Ashley Swearengin) wants the city to create an inspection program for most of the city’s residential rental units. The state of buildings throughout the city has been a hot-button issue for several years. The state of the city’s rental housing stock is Ground Zero for this debate.

Rudd’s proposal is 16 pages in length. That’s way too much detail to tackle in this piece. In brief, there is to be an “Inspector.” This Inspector will inspect certain rental units (private sector single-family houses and apartments, for the most part) within a specified time frame. Everything is A-OK if the units selected for inspection meet code for habitable housing. A unit that doesn’t pass muster must be swiftly brought up to code. Such a failure also triggers more extensive inspections on properties with more than one unit (in essence, apartment complexes).

Now, City Hall already has an inspection program. But, city officials note, it’s “reactive.” The Code Enforcement Division for decades has sent trained employees to inspect properties that have allegedly run afoul of the law. These employees have considerable “policing” power and are backed by an array of powerful City Hall departments (not the least being the City Attorney’s Office).

But many in Fresno think this policy no longer works. For starters, it’s not “proactive.” Critics of the status quo say City Hall needs a way to ensure that rental units are in good shape before a family moves in. Waiting until serious code trouble comes to light all but guarantees periodic and unnecessary danger to a certain number of renters.

Did someone mention Summerset Village?

I read Lee’s story and Rudd’s proposal with interest. That’s because Rudd and housing advocates aren’t the only Fresnans tired of the current code-enforcement routine.

District 2’s Brandau and District 7’s Olivier last month unveiled their own plan to re-energize code enforcement. They gathered outside one of Summerset’s gates in Central Fresno to pitch their Anti-Slum Enforcement Team/Landlord-Tenant Ombudsman program.

Their program, delivered in the form of a resolution, was adopted by the council on a veto-proof 5-2 vote.

The Brandau-Olivier plan also puts a premium on regulatory initiative, but with a twist.

The Rudd plan mandates what might be called preemptive inspections on pretty much all private sector residential rentals. If the landlord knows he’ll be tested periodically, the thinking goes, he’ll never let the units fall into disrepair.

Brandau and Olivier say the hard-nosed inspections should come after an apartment complex’s deteriorating condition comes to City Hall’s attention. Anticipating their critics’ concern – doesn’t such a policy border on the inhumane? – Brandau and Olivier added an ombudsman to their vision.

The Anti-Slum Enforcement Team (ASET) is to have a manager, six code enforcement officers and three lawyers from the City Attorney’s Office. ASET, when deployed, is to be the strong arm of justice.

“Once a property has been identified as a potential target, ASET will perform an initial assessment,” states the Brandau-Olivier resolution. “ASET will meet and determine what course of action to pursue, including number and types of inspections, meeting with public safety officials, and speaking to occupants of the property.”

Should the landlord fail to bring dangerously rundown units up to code, the resolution states, ASET and the city attorney “will decide whether to file a civil or criminal action….”

The ombudsman is the impartial but authoritative intermediary in the landlord-tenant relationship. The position works like this: A tenant has serious code problems in her apartment. She doesn’t feel comfortable contacting the landlord. She calls the ombudsman. The ombudsman investigates the complaint. If the complaint has merit, the ombudsman contacts the landlord. The landlord is told to fix the problems. If the landlord doesn’t comply, the ombudsman calls in ASET. If the landlord complies, no harm no foul. Life moves on.

All this is a shorthand summary of complex pieces of legislation and the complex bureaucracy that is the Code Enforcement Division. I’ve only hinted at the complex politics of code enforcement.

But I got to thinking after reading Lee’s story and Rudd’s proposal: Can all this work together? And if so, how?

We’ve got a long-running Code Enforcement Division overseen by planning director Jennifer Clark. We’ve got the ASET/Ombudsman program of Brandau and Olivier. And now we’ve got Rudd’s proposed inspection program with its omnipotent “Inspector.”

Seems to me there’s the making of a Rube Goldberg-type machine here.

I called Brandau over the weekend.

“The devil is in the details,” he said. “I’ll have questions on Thursday.”

I couldn’t wait that long. So I sat down with Rudd and City Hall Communications Director Mark Standriff on Monday for a discussion on how to turn administrative complexity into effective governance.

Rudd said the “Inspector” could be someone from the private sector working with City Hall by contract. He said the Inspector would have a team trained in the arts of code investigation. The Inspector would work closely with traditional code enforcement officers.

Then I brought into the conversation the ASET/Ombudsman team of Brandau-Olivier. I asked: Is not this ASET/Ombudsman team a potentially disruptive element in your Code Enforcement Division?

For example, the Rudd proposal calls for the Inspector to inspect 10% of the units in apartment complexes of more than 50 units. The units to be inspected are selected randomly.

Let’s say the Acme Gardens complex has 60 apartments. The Inspector inspects six units. All six pass with flying colors. Therefore, the other 54 units don’t have to be inspected.

A month goes by. A tenant in one of the 54 uninspected apartments realizes her place has many code violations. She fears the landlord. She calls the Ombudsman.

The Ombudsman inspects her apartment. The Ombudsman agrees – the place is full of code violations. The landlord is alerted, but ignores the Ombudsman’s commands. The Ombudsman calls in ASET.

ASET takes over. All the requirements of the Brandau-Olivier program – such as inspection of all remaining units in Acme Gardens because of the one failed unit – are triggered.

All well and good for the tenants of Acme Gardens. But sitting over on the sidelines, impotent and shamed, is the Inspector program of Rudd and Swearengin. ASET gets the glory, “Inspector” gets the ridicule.

The Ombudsman has become The Boss.

Such a scenario is just one of the potential conflicts arising from the three-way marriage of traditional code enforcement, the Brandau-Olivier program and the Rudd plan.

I asked Rudd: Are you and City Hall headed for a turf war if your plan becomes law?

“No,” Rudd said.

The reason? The ASET/Ombudsman program created by two City Council members all but disappeared as a distinct entity once it left the Council Chamber and came under the command of the city manager (who works on the executive side of the government).

Rudd said the Ombudsman in my scenario “would be strongly encouraged” to clear any proposed actions at Acme Gardens with the city manager before acting.

“The underlying premise is that the Ombudsman will dictate how resources are being used and when they’re being used,” Rudd said. He shook his head: “No.”

Rudd continued: “As I shared with Clint and Steve, the council has the ability under the charter to create new departments, divisions or functions. This (the Brandau-Olivier program) didn’t create any new departments. It didn’t create any new divisions. It certainly didn’t create any new functions – this is code enforcement.

“Once it gets to my side of the house, it’s my authority, my role to dictate how resources are used and when resources are used. The council does not tell the city manager how to run a department.”

I left Rudd’s conference room thinking: “Thursday’s council meeting should be lively.”

I close with two more quick points.

First, Brandau said he expects to have questions on Thursday when Rudd pitches his inspection law. To whom does Brandau pose his questions? Swearengin has only a few weeks left in office. She can’t know how the inspection program will unfold because she won’t be at City Hall when the heavy lifting begins. Same with Rudd. He may stay onboard for six months or so to help with the overall transition to a new administration. But he’s definitely a short-timer.

The person who should be answering Brandau’s questions on Thursday will be sitting in the District 6 seat – Council Member/Mayor-elect Lee Brand. Brand voted for the Brandau-Olivier ASET/Ombudsman program. That could make for an interesting scene – Brand, in response to a Brandau question, disowning the intent and integrity of the Ombudsman position he voted to create. And if Brand endorses the Brandau/Olivier vision for the Ombudsman, that would leave Rudd swaying in the wind.

Second, I circle back to opening sentence about Brandau and Olivier becoming Faith In Community’s best friend.

All three have a sincere interest in ensuring quality housing for all Fresnans. But they pursue that goal along different paths. It’s enough to note that Faith In Community most likely would have preferred a more robust inspection proposal to emerge from the Code Enforcement Task Force.

But it is the Brandau-Olivier team (a politically conservative team) that created the Ombudsman role and made it a working part of city policy. I’m guessing the Ombudsman, regardless of any closed-door warnings by a city manager, will have surprising power to guide (and expand) what, under the Rudd proposal, is a rather restrained inspection system.

The hand that rocks the Ombudsman rules code enforcement. And that hand belongs to an angry tenant with a telephone.

I suspect Faith In Community knows a lot of angry renters.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.

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