Swearengin pitches peculiar one-two punch to beef up code enforcement

Ashley Swearengin appears to be taking a page out of Henry Kissinger’s playbook – “linkage” is coming to Fresno City Hall.

The Mayor is pitching two proposed laws to the City Council on Thursday, both connected to complexities arising from her years-long effort to reform the Code Enforcement Division.

Each law is interesting by itself. Combine the two, and you’ve got history in the making.

I’m calling the first one the “Hearing Officer Law.” (Neither proposal has an official title.)

Here are key details, based on city documents:

A.) The city’s Blighted Vacant Building law is close to a year old. This law requires landlords to take good care of vacant buildings (the focus is on vacant single-family houses). Landlords who don’t pay heed to city warnings (Hey! You’ve got illegal plywood instead of the mandated clear plastic-type material covering on your front window!) face big fines.

B.) Landlords can appeal their fines to an administrative hearing officer. This is City Hall’s version of judge and court.

C.) The Blighted Vacant Building law “does not require the hearing officer to compel property owners or their tenants to repair nuisances or remedy illegal conditions on the property,” says a staff report. “After all Code Enforcement and hearing officer actions have been taken, the property could still remain in its current condition for an undetermined amount of time.”

D.) In the other words, the blighted vacant house remains a cancer on the neighborhood. The Blighted Vacant Building law has a hole.

E.) Swearengin’s proposed “Hearing Officer Law” is actually an amendment to current law. “By amending this ordinance the hearing officer can order the property owner to remedy all conditions within a maximum of thirty days,” says a staff report.

F.) The hearing officer would then hold another hearing after the 30-day period is up to see if the landlord obeyed. If not, the hearing officer “must order payments of additional fines which may be doubled,” says a staff report.

G.) But that’s not all. “Additionally,” says a staff report, “if the owner or occupants willfully fail to comply with the hearing officer’s orders, they may be subject to misdemeanor prosecution in superior court.”

H.) The actual language of the proposed “Hearing Officer Law” shows the seriousness of Swearengin’s intentions. The law says a landlord’s willful failure to comply with the hearing officer’s orders “shall be deemed a criminal violation and may be prosecuted as a misdemeanor in superior court, subject to fines and/or imprisonment ….”

I’m calling the second proposal the Nuisance Law. This proposal actually is an amendment to municipal code related to the management of real estate (property).

Here are key details, based on city documents:

A.) Yes, slumlords can wreak havoc on the social order of neighborhoods, especially in poorer parts of town where residents often lack the resources to fight back at City Hall or in the courts. But, says a staff report, the same is true for “the behavior of persons or properties within the City ….”

B.) This destabilizing behavior constitutes a public nuisance, the city says. “The abatement of behavioral nuisances is as important to the City in its fight against blight, decay, deterioration and crime as is the abatement of other nuisances created by physical conditions.”

C.) The city already has laws against a bunch of behavioral nuisances. The Nuisance Law would expand this list.

D.) According to the proposed law, a “responsible party” would be held in violation of municipal code if he allows “with actual or constructive knowledge” certain nuisance-type activities on his property. What’s a “responsible party”? It’s an owner, tenant, occupant, property owner or, in the case of condo developments, home owners’ association.

E.) What are these behavioral nuisances? The proposed amended law needs nearly three full pages to list them. Most of the nuisances are listed in the current law. But a fair number are additions. Bear with me – I’m going to review them all because they’re key to understanding the story.

F.) There’s the illegal sale, use or possession of illegal drugs and controlled substances. There’s the coming-and-going of people who want to buy these illegal drugs. There’s the plying of the prostitution trade. There are unlawful activities of validated gangbangers. There’s the neighbor whose incessant noisemaking disturbs the neighborhood’s tranquility.

G.) There’s the unlawful discharge of a firearm or brandishing of a weapon. There’s the presence of graffiti, trash and debris on a property for a 48-hour period. There’s the presence of abandoned or dismantled vehicles on a property (unless specifically permitted by city law). There’s violation of the city’s housing and dangerous building laws. There’s the illegal sale, use or possession of firearms. There’s the harboring, boarding or concealing of a person with an outstanding arrest warrant. There’s the illegal subletting or subdividing of dwelling units.

H.) There’s the frequent response by police to a property for the following: Animal disturbances; violent and non-violent criminal acts, including identity theft fraud, possession of stolen property, burglary and theft; illegal consumption of intoxicants in public view; gaming activities; juvenile or domestic disturbances; verbal disturbances that are plainly audible at distances of 50 feet or more; the possession, use, manufacture, cultivation, sale or purchase of illegal drugs or controlled substances.

I.) The current nuisance law says landlords are responsible for “monitoring their properties and for taking appropriate action if a nuisance exists …” Swearengin’s proposed amendments would allow the city to take legal action against “other responsible parties” as well as the landlord if illegal nuisances persist. The amendments say every “responsible party” (not just the landlord) is required to avoid causing illegal nuisances. The amendments say “every responsible party shall be jointly and severally” liable for illegal nuisances.

J.) What happens if illegal public nuisances occur at the house down the street? In the old days, the director of the Development and Resource Management Department (DARM) or her representative got hold of the landlord and read him the riot act. The landlord, and only the landlord, was on the hook for any trouble caused by tenants (under this particular law). Under Swearengin’s amendments, the DARM director would contact the landlord and “known responsible parties.” The landlord could still be in a world of hurt. But, if the DARM director is doing her job, the landlord would have a lot of company when the hammer falls.

K.) The current nuisance law has a range of possible fines to change the attitude of slow-moving landlords. Swearengin’s proposed amendments toughen those fines, which could fall on tenants and occupants as well as landlords.

L.) The first violation in the old days was up to $1,000. The proposed amendment would make it an automatic $1,000 (plus abatement, administrative and enforcement costs).

M.) The second violation within a rolling 12-month period in the old days was up to $10,000. The proposed amendment would make it an automatic $10,000 (plus abatement, administrative and enforcement costs).

N.) The third violation in the old days was up to $50,000. The proposed amendment would make it a fine of between $10,000 and $50,000 (plus abatement, administrative and enforcement costs).

So … what’s going on here?

I called Mark Standriff, the city’s communications director, on Monday. He said City Manager Bruce Rudd wouldn’t publicly discuss the two proposed laws until Thursday. Standriff said Rudd wants to save his analysis for the City Council.

I called Council Member Steve Brandau on Monday.

“I have concerns,” Brandau said. “Will these laws backfire and produce unintended consequences?”

But that’s all he’d say for now.

I made a call to a trusted source among Fresno’s large world of community activists. He said he was still studying the Mayor’s proposals.

Let’s look at the context.

The city in 2013 hired Ed Johnson, a lawyer from Mariposa, to be the administrative hearing officer for code enforcement appeals. City officials soon were upset with Johnson. They thought he was too soft on the appellants and too hard on the city. They thought Johnson was reducing or killing too many fines.

Johnson has a three-year contract that expires this fall. City officials fixed things by hiring a second hearing officer. He is Michael Flores, a former deputy city attorney. Flores is an officer of the court, not a lapdog for a City Hall fond of collecting big fines. Still, city officials must be thinking: “Flores is our guy.”

Flores a couple of weeks ago heard his first appeal under the Blighted Vacant Building law. I bumped into Flores late last week at City Hall. I asked if his decision on that appeal was ready for public review. Not yet, he replied.

I asked because I want to see if Flores’ thinking on appeals of the Blighted Vacant Building law follows Johnson’s thinking or goes in an entirely different direction. Sort of like comparing the mindset of the Warren Court with the mindset of the Burger Court.

I know for a fact that I’m not the only City Hall watcher thinking this way.

That’s because Johnson has serious reservations about the system of landlord fines authorized by the Blighted Vacant Building law. He’s written decisions on four appeals saying the city is improperly implementing the law. He says the fines are so big they may violate the U.S. Constitution’s guarantee of equal protection of the law.

The appellants in those four Johnson decisions had been fined a total of $90,000. Johnson tossed out of court all but about $1,000 of those fines.

Now comes Swearengin’s new Hearing Officer Law. If the council approves the proposed law, Johnson or Flores would have the following mandate hanging over their heads whenever they hear a landlord/slumlord appeal:

“If the hearing officer finds any nuisance or legal violation set forth in the citation or notice and order is continuing and remains as of the time of the hearing, the hearing officer shall order the record owner and/or occupants to repair or otherwise remedy the illegal condition within thirty days from the date of the order. The hearing officer shall set a hearing to occur between thirty and sixty days after the date of the order to confirm whether the record owner and/or occupants have made all repairs or remedied all illegal conditions as ordered. If it is shown at the subsequent hearing the record owner and/or occupants have failed to fully repair or otherwise remedy the illegal condition, the hearing officer shall order payment of double the maximum fines permitted in this code. Additionally, the willful failure of the owner and/or occupants to timely comply with the hearing officer’s order shall be deemed a criminal violation and may be prosecuted as a misdemeanor in superior court, subject to fines and/or imprisonment as set forth in Section 1502 of the Charter.”

The emphasis of “shall” and “may” is my doing. I did it to make a point. Swearengin’s new Hearing Officer Law appears to remove a lot of the judicial discretion that Johnson has employed in such memorable fashion. If “shall” means “mandatory,” then the hearing officer becomes merely a rubber stamp for the Administration and its Code Enforcement Division.

One of the appellants among Johnson’s four decisions was fined $37,500. Under Swearengin’s proposed law, this landlord would have been fined $75,000 if she hadn’t fixed things fast. She also would have faced jail time.

Swearengin clearly want to get even tougher with landlords who (allegedly) thumb their noses at municipal code.

This is music to the ears of community activists who think City Hall for too long has been in the back pockets of landlords (or slumlords).

It’s probably no coincidence that Swearengin’s proposed Hearing Officer Law comes just as phase two of the city’s Code Enforcement Task Force picks up steam. The Task Force last year crafted the Blighted Vacant Building law. The council approved it with a few changes.

The law deals mainly with the exterior of vacant residential buildings. Activists on the Task Force were deeply disappointed that the law didn’t include tough quality standards on the interior of rental houses/apartments. Phase two of the Task Force is tackling this issue as we speak.

The Task Force includes city officials, developers and community activists. I hear from sources that city officials and community activists have become allies, leaving developers isolated and powerless.

The way I read it, Sweaengin’s proposed Hearing Officer Law would apply to appeals involving blighted vacant buildings and to appeals involving citations for any illegal conditions on a landlord’s rented property.

Is Swearengin’s proposed Hearing Officer Law setting the stage for big mandated fines for landlords who run afoul of new laws regulating how landlords prepare the interiors of their rental units?

And will Swearengin’s Hearing Officer Law be the guiding force only for Administrative Hearing Officer Michael Flores – because Administrative Hearing Officer Ed Johnson for the last six months of his contract is shunted into a corner where he hears only the most mundane and irrelevant of appeals?

We’ll have to wait and see.

Now we circle back to “linkage” and former Secretary of State/National Security Adviser Kissinger.

Code enforcement, at least in theory, isn’t just about landlords that the media love to hate. City officials have long recognized that neighborhood residents themselves can destroy a community with rotten behavior.

As we’ve seen, Fresno’s municipal code is full of mandates that, taken together, boil down to the Golden Rule: Treat others as you want to be treated.

But City Hall (and most of America) is all about identity politics. Using the immense power of government to pound proper behavior into misbehaving folks from legally protected groups is no way to advance political careers. It’s far easier for City Hall to go after landlords/slumlords and leave neighborhood behavioral challenges to someone else.

Yet, even a timid City Hall has recognized that widespread revitalization of Fresno’s civilization is impossible without a common set of positive behavioral values. How to enforce those values as listed in the city code while avoid any taint of being mean (or discriminatory) toward protected groups?

The city came up with a nifty idea in mid-2014. The idea (pitched to the City Council by City Attorney Doug Sloan) was to essentially turn every Fresnan into a code enforcement officer.

You see, it takes a code enforcement officer to get the ball rolling on a code enforcement complaint.

A slumlord is letting his apartment complex go to pot? You, as a neighborhood resident, can complain to City Hall. But if a code enforcement officer doesn’t get involved, then your complaint dies. You have no direct access to the city’s code enforcement system (such as hearing officers Johnson and Flores) without a code enforcement officer on your side.

Same thing holds true for neighborhood behavioral problems. Your neighbor holds loud beer parties late into the night? You’d better make nice with code enforcement or you’re doomed.

Sloan in mid-2014 said: Why not let individual Fresnans file formal complaints of alleged code violations? These formal complaints would lead to a formal hearing in front of someone like Johnson or Flores. The beleaguered neighborhood would be guaranteed her day in court.

There were many nuances to Sloan’s proposal. For instance, a frivolous complaint would cost the complaining party a pretty penny. On the other hand, if the complaint proved legitimate the hearing officer had the authority to compel the misbehaving neighbor to clean up his act.

Sloan’s proposal went nowhere with the City Council (even though Sloan wouldn’t have pitched it without direct orders from, at the very least, the council president). The reason? Near as I could tell, the council realized the idea would be immensely popular with Fresnans fed up with the constant misbehavior of their neighbors. The hearing officer would be inundated with citizens complaining about their fellow citizens. In short order, City Hall in our identity-obsessed world would be accused of allowing the Little Guy to be picked on.

Not long after Sloan’s idea died, we came to phase one of the Code Enforcement Task Force. The developers/landlords on the Task Force occasionally noted that landlords aren’t solely responsible for blighted neighborhoods. Misbehaving tenants/residents can be a cancer, too.

But community activists firmly rejected using the Task Force as a high-profile vehicle to tackle this issue. They said the focus should be on slumlords, not citizen behavior. The developers/landlords didn’t push hard. Phase one was all about the exteriors of vacant buildings – relatively small potatoes.

Phase two of the Task Force is dealing with much bigger stakes. That presents Swearengin with a major leadership challenge. How does she get Hearing Officer Johnson out of the way? How does she give Hearing Officer Flores a real hangman’s noose to wield? How does she get an activist-pleasing law on rental interiors out of phase two of the Code Enforcement Task Force? How would she effectively pitch the activist-pleasing law on rental interiors to the public and the City Council if outraged developers/landlords wash their hands of it?

Perhaps with a little “linkage.”

The proposed “Hearing Officer Law” with its doubled fines and possible jail time for irresponsible landlords has got to be pleasing to the activists.

And it sure sounds like phase two of the Task Force is heading toward a law on rental interiors that will be pleasing to the activists.

Now, with budget hearings just weeks away, Swearengin comes up with amendments to a Nuisance Law that add misbehaving tenants as well as landlords to the legal hot seat. This has got to be pleasing to landlords and disturbing to activists.

It’s all linked, Swearengin is saying. Can’t have one without the other. City Council, you’ve got to say yes to both – the Hearing Officer Law and the Nuisance Law.

If my brief chat with Council Member Brandau is any hint, the council on Thursday will have many questions for the Mayor and City Manager Rudd.

Take the Nuisance Law, for example. I can see how the landlord could get in big trouble real quick because he can’t stop tenants from smoking and selling dope. Pretty soon the landlord is facing fines of $50,000 (or $100,000 if a hearing officer gets involved). The landlord has a big investment in the property. He can’t put the property in his pocket and sneak away in the dead of night. City Hall has him between a rock and a hard place.

But how will City Hall fine the dope-selling tenants $50,000 each (or $100,000 each) and collect that money? Perhaps the Nuisance Law’s penalties against misbehaving tenants are just for show.

As I’ve said, we’ll have to wait and see.

One other point.

The proposed Hearing Officer Law is pitched as an emergency ordinance. That means the law, if passed with at least five votes, would go into effect immediately.

The proposed Nuisance Law would follow normal legislative procedure – introduction on Thursday, adoption by the council at a later meeting, the Mayor’s signature after that, then a month’s wait before the law goes live.

Why is one an emergency and the other not?