Friday, February 5, 2016

Another upside-down amendment to Rent Ordinance is introduced - Campos Bill Re: Educator Evictions

Politics have an inherited dependency on voters. At the core of politics is "making of a common decision for a group of people." [Wikipedia] Not surprisingly, politicians get voters' support by proposing decisions favorited by majority groups of people. The danger of democracy voting itself out was noticed long time ago. A fresh example from far away: Switzerland is going to vote on guaranteeing each citizen a monthly payment of approximately $2,800 fixed income, directly from the government, no effort required. How do you think this proposed measure will survive at the polls? I too think it will pass with a rare rate of success. [I was wrong--Swiss voted against it on June 5]

Example from a recent local past: in September 2015, our supervisors had to vote on the proposed vast package of anti-lanlord measures. Each of the decision-making voting members, a supervisor, is an elected figure, naturally concerned with influencing the electorate of her/his district, so that the majority group votes in support. If tenants constitute a majority of voters, how do you think the elected candidates would vote, especially when the a supervisor's voting is weeks away from her own re-election? Supervisors unanimously (on most points) supported the measure, and it is left to stay with us, at least until being examined by the courts,* even if the supervisors are gone. It did not help some of the sups who were due for re-election. In this city, one quote, even remotely suggesting something against the "eviction crisis" theme, can cost supervisor a seat. And it did. Read the coverage on, you will see that the winner for that district was supported by the Tenants' Union. The losing candidate was obviously not.

And turning to the current events, here is a new example of a successful attempt of winning tenant-voters' hearts: Supervisor David Campos (whose bid for reelection is up this year) introduced an amendment to eviction regulations, to limit evictions of anyone related in employment to education. What can be wrong with that? Let's count ways.
[02-14-2018: Court of appeals reversed the judgment previously enjoining the "educators" ordinance today. We may now expect the "educators" ordinance to come back in force, unless a certiorari review will follow.]

The proposal wants to differentiate the pool of renters by an industry affiliation--if you are a tenant, and are related to the education field, the proposed law brings you additional protections against a eviction. If you make your living elsewhere, this law has no direct effect on you. (Yes, it does have an in-direct negative effect on any tenant, educator or not, I muse about that below). The proposal discriminates tenants by source of income, making some more worthy of being spared from eviction than others. Besides being directly in violation of the San Francisco Police Code, Section 3304,** it so discriminates for no particularly articulated reason.

The targeted group for protection is under-inclusive, it inexplicably excludes other worthy professional groups: policemen, firemen, paramedics, street cleaners, bus drivers, other city workers of all sorts, community spiritual leaders, etc. For any of these groups an absolutely same appeal can be made, identical to the one touted for this proposed law (i.e., a world-class city should have world-class educators). Doesn't a world-class city need world-class roads, clean streets, world-class community services? It needs them just as much. Imagine any group being ousted out, and we are in big trouble. May be with one exception, the parking-ticket issuers, they are apparently doing well themselves and working on putting their kids to private schools, but may still want to enjoy the rental protection.

The targeted group is at the same time is over-inclusive. It aims to cover anyone anyhow related to the field of education. It does not appear to specify even that field enough (Education anywhere or within the city borders? Public or Private? Within a school program, or of any kind?)  It brings this proposal under the auspices that an average public educator's salary is lesser than an average one-bedroom apartment, but includes private educators and any kind of professionals related to education. A tenured professor or a private instructor may be in a different income bracket, but will be covered anyway, while a non-educating professional of lesser means will not be. It may result in protecting someone who gives an online seminar once a year the same way it wants to protect an everyday full-time school teacher. And restricting evictions to the same time-bracket has the same flaw: some educators may have their busier time during summer, and under the new law, summer would be the only time when they can be evicted.

If enacted, the law will have negative effect on tenants of any profession. Education-related professionals and their families will become lesser welcomed as new tenants. I learned this on my own skin a few years ago. How many landlords do you think are thrilled to rent to a tenant, who states in his rental application that he is a real estate attorney? Even those who considered me for a second, would google my name and learn that a substantial portion of my practice is eviction litigation. I am un-rentable to. Educators will now follow my fate, and will suddenly turn from welcomed tenant-candidates to the most feared ones. (Oh wait! I am also a research assistant at the university! Double damned I am.)

Will the law specify any time limitations for the educational affiliation? Minimum years at work? Currently occupied in an education-related field? If a current involvement will be required, it will leave out veteran educator-retirees. If past involvement will be sufficient, almost everyone will qualify, as it is hard to live a life and not to be involved in education at least once at some point, especially if volunteering services will be included.

On the other hand, will this proposed eviction limitation have a similar exclusion other limitations have? Currently, an evicting landlord can counter-balance tenant's claim of a protected status by demonstrating comparable hardship, be it a disability, or a need to care for children. (See, e.g., S.F. Admin. Code, Section 37.9(i)(2) and (j)(2)). If a similar exception will be part of the new law, the over-inclusiveness of the "educator" definition will thwart any effort this law intends to make, because each evictor will be able to demonstrate a similar background and proceed without delay.

And those who have no ties with education (although I suspect that everyone will suddenly discover an inner educator in himself), will face an increased pressure during the time when evicting an educator will be off-season. With the demand remaining the same (let's just pretend the demand won't increase, even though it evidently steadily does), and the housing options decreasing (as this law proposes), where else the pressure of newcomers will turn to? To those non-educating workers, who suddenly would become marked for free hunt three quarters of the year. There may also be an uptick in for-fault evictions, for every scenario where a non-fault and a for-fault cause would be present, with the non-fault option no longer available.

The proposal therefore seems not to achieve the announced goal of improving the housing situation, but working toward exactly the opposite result. This is not the first time it happens, and will definitely not be the last one.  Several districts are up for re-election this year, so expect the incumbents and their challengers all make bids for the hearts of tenants' votes. (I will have to re-write my book again!)

[on August 31, 2016, these proposed "educator" amendments were struck down (link)];
[02-14-2018 update: Court of appeals reversed the judgment];
[Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release here].

* The judges for the San Francisco county court also undergo an election process (under Cal. Elec. Code §§ 82208221), voted to by the voters consisting of the same landlord-tenant community share proportions. Of course this mean a much slower change in views and policies of the judicial branch, but the direction can very well be the same.

** SEC. 3304. HOUSING.
(a) Prohibited Activity. It shall be unlawful for any person to do any of the following acts wholly or partially because of a person's actual or perceived ... creed, ... source of income ... :
(1) To interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property, including but not limited to the rental thereof; to require different terms for such transaction; or ...
(2) To include in the terms or conditions of a transaction in real property any clause, condition or restriction;
(5) To make, print, publish, advertise or disseminate in any way, or cause to be made, printed or published, advertised or disseminated in any way, any notice, statement or advertisement with respect to a transaction or proposed transaction in real property, ... which unlawfully indicates preference, limitation or discrimination based on ... creed, ... source of income, ..... For purposes of this Subsection (a), "source of income" means all lawful sources of income or rental assistance from any federal, State, local, or nonprofit-administered benefit or subsidy program. "Source of income" also means a rental assistance program, homeless assistance program, security deposit assistance program or housing subsidy program. "Source of income" includes any requirement of any such program or source of income, or rental assistance.

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