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Saturday, July 26, 2008

The Governor's Move: Without Conscience

In case you missed it this week, Governor Arnold Schwarzenegger stunned even veteran politicians by announcing that in light of a budget impasse, he would be cutting the salary of all state workers to the FEDERAL minimum wage of $6.55 per hour.

I do not usually cover state politics, but this is one of the most cynical and heartless political moves that I have seen in politics. And unfortunately I have seen a lot of bad decisions in politics at the federal, state, and local level.

But it's really unclear what this accomplishes. First, you are punishing a group of people who largely are innocent bystanders in this budget battle. State workers of course come in a large range, but what does the guy who mans the DMV desk, the woman who collects your $4 at a toll booth on the Bay Bridge, or the guy who mans the printing press for the state printer, have to do with the budget? These people get $30,000 maybe at best $40,000 per year, they have mortgage payments, car payments, have to buy gasoline, have to feed their families... what in the hell is the governor thinking? He's playing politics with people's lives. People whose lives have nothing to do with his political agenda or his political battle. These people cannot afford to live on $6.55 per hour.

Second, State Controller John Chiang said that the state has plenty of cash to pays its bills through September. And if the budget were not in place then, the bills would go to the private credit market.

As Sacramento Bee Dan Weintraub wrote on Thursday:
"It will make him seem mean-spirited and autocratic, which are traits that helped bring him down in 2005 and, if associated with him again, will undermine his ability to win public support for his point of view.

The logic behind the move is also either faulty or phony. Schwarzenegger says he needs to save cash so the state can operate without borrowing more if there's no budget into September. If he is sincere in that belief, then what's the point? Why force state workers to sacrifice just to give the Legislature more time to debate? What they need is pressure, not a way to relieve that pressure by improving the state's cash flow situation. Which is why the more likely reason behind the move is that Schwarzenegger wants to use state workers to ratchet up the pressure on legislators to get it done."
Senate President Pro Tem Don Perata, D-Oakland, said on Thursday that Schwarzenegger's proposal caught Democrats by surprise.
"I was with the governor twice yesterday... He didn't even bring this up. So if he wanted to leverage me, you know, it's like you put a gun to your head and say hey, I want your attention now."


"I don't know why he did it. It was certainly unnecessary. It's incendiary. You know, he is really trying to incite the wrong people. But if he wants a fight, he's going to have a fight ... this is an act of war. It's a declaration. He is doing war on the people of this state who make California run. So whoever advised him ought to be in an unemployment line right now. If he thought of it himself, shame on him."
The Senate President became even more indignant making fun of the Governor for his "brigade of 13 armed escorts." He mocked the Governor for being out of touch with the average Californian.

If there is one thing that the Governor has succeeded in doing, it is giving Democrats in Sacramento an actual backbone.

Democrats like Senator Dean Florez and Controller John Chiang may emerge as heroes in this fight.

Controller John Chiang issued a statement on Thursday:
"[The State Supreme Court] has never addressed the legality of withholding full salaries versus paying minimum wage (and) the governor's proposed executive order would only invite more extensive and expensive litigation. Worse, should the courts find that withholding full pay is illegal, the state will be liable for treble damages."
Sen. Dean Florez:
"I don't think it is wise for the governor to use working men and women as hostages for the state budget... I think it shows weakness on his part as a negotiator. The men and women who do the hard work that keeps our state running deserve their full pay."
The Controller is refusing to pay state workers minimum wage in defiance of the Governor's executive order. Controller Chiang got support yesterday from the Legislative Counsel, which said in an opinion requested by Sen. Florez that the governor cannot compel the controller to reduce workers' pay.

According to Legislative Counsel Diane Boyer-Vine, the exectuive order could not force Chiang to start paying state workers the minimum wage in August. Her opinion citied cases where the courts found that the controller may wield his authority independent of the governor.

It appears then that Controller John Chiang and Senator Dean Florez will force the Governor to go to court to enforce his executive order where Chiang and Florez believe they will prevail.

Florez told the Sacramento Bee yesterday:
"Florez said he hopes the legal opinion will cause Schwarzenegger to "reverse his actions and apologize."

"We want to avoid any kind of lawsuit between the controller and the governor," said Florez, who added that such a suit would be a "huge waste of energy, resources and time."

The paycheck reduction idea was "very repulsive," said Florez, who said the move showed "the governor at his lowest point."

"There are a lot of ways to negotiate a better budget, rather than taking hostage state workers and forcing a minimum wage statute on them because he thinks he's king and he can do it," Florez said."
The Governor's executive order is an utter disgrace motivated by politics and probably malice toward state workers who have rebuked his proposals in the past. There are plenty of ways to resolve the budget dispute. This is hardly one of them. This will end up another black mark on the Governor's record, reminiscent of what happen in 2005. Back then, the Governor overreached on state ballot initiatives but was able to retreat in the face of weak opposition in the 2006 to prevail in his reelection bid. This time, he faces no reelection big, but his ability to backtrack may be minimal. He may have harmed his chances to seek another office such as Senator.

For the state workers, it appears that for now they will not get $6.55 per hour. The powers that be will fight that order and force a lengthy court battle. In the meantime, the budget will be resolved as it usually is, poorly and late. The state's system does not work well and there is almost no way to change it.

---Doug Paul Davis reporting

Friday, July 25, 2008

Former Davis Police Chief Finds New Department Subject of Federal Class Action Lawsuit

Police Allegedly Targeting African-American Tenants in Antioch

According to a lawsuit filed by Antioch Community Members and four Bay Area non-profit civil rights organizations, the City of Antioch and its police department are engaged in a concerted campaign of intimidation, harassment and discrimination against citizens, specifically African-American residents, who receive federally funded Section 8 housing rent assistance.

This is the apparent culmination of a long and controversial dispute in Antioch between longer term residents and those who have moved their families to Antioch in search of more affordable housing.

The city of Antioch rejected the lawsuit's claims, arguing that
"any objective review of our city's policing efforts will reveal that these efforts are focused exclusively on criminal and/or dangerous behavior."
However, according to Brad Seligman of the Impact Fund, one of the four groups to file the lawsuit on behalf of community members in Antioch:
“There is no question that the City and its police department are targeting Section 8 families, particularly African American recipients... The Police have a deliberate policy of coercion, intimidation and threats that target these Section 8 families and their landlords. The City’s goal is to force these families to move out of town.”
According to a release from the ACLU:
Plaintiff Alyce Payne moved to Antioch with her children to show her family they could “make it” outside of Oakland and so that her children could attend public schools there. But after her landlord received several letters from the police department, her tenancy was terminated. Ms. Payne relocated her family out of the City.

“Everyone should have the right to live in peace in the community they choose,” said Payne, who testified before the Antioch City Council about the discrimination she encountered from police officers. “We all want to live in a place where our families and our rights are respected.”
The suit alleges among other things that the Antioch Police Deparment:
- Established a special unit in 2006, the Community Action Team (CAT) for the purpose of targeting Section 8 residents, and the unit has directed the majority of its activities at African American families.

- Frequently searches the homes of African American families in the Section 8 program (or those erroneously believed to participate in the program) without their consent and without a warrant in an attempt to gather evidence to be used against Section 8 participants.

- Engages in a pattern of informing neighbors of African-American Section 8 households that the household is receiving Section 8 housing assistance and suggesting that neighbors file nuisance or disturbance reports against the Section 8 household.

- Threatens landlords with letters and visits by suggesting that landlords will be held liable for the activities of Section 8 tenants, and police officers actively encourage landlords to evict Section 8 tenants.

- Attempts to pressure the local Housing Authority in charge of the Section 8 program to terminate the voucher benefits of tenants whom the police department has targeted. Over 70% of these attempts have been directed at African Americans. A majority of these complaints were not sustained by the Housing Authority.
According to the complaint filed, in July of 2006, the City and the Antioch Police Department created a unit called the "Community Action Team" or "CAT" within the department. The CAT has disproportionately focused on Section 8 voucher participants, particularly on those residing in the more affluent neighborhoods of Antioch. "The city and APD [Antioch Police Department] have specifically targeted African-Americans they believe hold Section 8 vouchers."

During this time, former Davis Police Chief Jim Hyde had become Chief of Police for the City of Antioch. While these processes were underway, he was clearly in the position to facilitate the program, and in addition "he is responsible for the administration of APD and the training and supervision of its officers." Furthermore, "Defendant City, APD and Police Chief Hyde are, and at all times material to this complaint were, responsible for the employment, training, supervision, and discipline" of three named officers.

Former Davis Police Chief Jim Hyde remains the subject of another federal lawsuit, this one stemming from the 2005 arrest of then-16 year old Halema Buzayan stemming from a disputed hit-and-run accident in a Safeway parking lot and allegations of unlawful arrest, poor police procedures, and violations of Miranda Rights. A judge in April of 2006 dismissed the charges against Ms. Buzayan. The Buzayan federal lawsuit is moving slowly through the court process, having survived efforts from multiple defendants to drop the complaint.

When Police Chief Jim Hyde resigned from the city of Davis, the city was rife with turmoil and complaints against the police department. The Buzayan case was the most publicized and notable. However, in February of 2006, a large number of African-American students and faculty, came before the Davis City Council to complain about racial profiling. In May of the same year, several hundred mostly African-American students marched from the Memorial Union on campus to the Davis Police Department.

While it was the efforts of the Human Relations Commission and my wife Cecilia Escamilla-Greenwald, in pushing for police oversight and reform, that earned widespread media attention and criticism by many suggesting they had gone too far in their demands, it was the anger of these separate groups that contributed to an overall sense that the police department under Jim Hyde's leadership was under siege.

In June, following the 2006 elections, Jim Hyde abruptly resigned from his position at the Davis Police Department to take the same position for more pay in the City of Antioch.

As he left, he threw more fuel on the fire, blaming my wife, Cecilia Escamilla-Greenwald, and the HRC.
"In my 27 years of government service, 10 years of clinical psychology and 16 years of working with nonprofit organizations, the HRC is the most dysfunctional and incestuous group I have ever witnessed. I hope that (the) City Council will correct this community problem."
The Davis City Council would act quickly before newly elected Councilmember Lamar Heystek, a strong ally of the HRC and supporter of reform, could be seated. On June 26, 2006, the Davis City Council voted by a 4-1 margin to disband the Human Relations Commission.

To be very honest, this blog would likely not exist had it not been for the events in the Spring of 2006 and the actions by Chief Jim Hyde that led the HRC being disbanded.

Even two years later on the campaign trail, I ran into a number of individuals who still hold anger for the fact that Chief Jim Hyde was perceived to have been run off by Cecilia and the HRC.

And yet at the same time, it seems to me that Chief Jim Hyde was a huge precipitator of both the underlying problems in the Davis Police Department as well as an instigator to many of the tensions that arose in the Spring of 2006. When he left, overnight, tension plummeted. Even more than the hiring of a police ombudsman, the hiring of Chief Landy Black in the spring of 2007 served to cut down on the public complaints. I am not suggesting that things are perfect, I still think things could be better, but we have also not had public marches in the streets the last two years. We have not had hundreds of young African-American students coming into city council complaining about police tactics. In my dealings with Chief Black, he has always been willing to listen and has been completely professional, even on those occasions when we have disagreed.

As Cecilia Escamilla-Greenwald said to Davis Enterprise reporter Claire St. John during her run for City Council in a Davis Enterprise article:
"I think we all learned from that process," she said. "How communications, situations, can be improved. It's those experiences that make us better people."

Escamilla-Greenwald said the things that came of that time have improved the city. The City Council, although it rejected an independent police oversight commission, did appoint a police advisory commission and hired an ombudsman. The new police chief, Landy Black, is a good fit for the city, Escamilla-Greenwald said.

"We have a new chief of police who is doing a great job as far as I've seen," she said. "I've met with him, I did a ride-along with the police, that was an eye-opener. People are happy, from what I hear. There's now a process in place."
While the situation in Antioch may be somewhat different from that in Davis, the basic scenario seems to follow a similar pattern. The police are alleged to take an overly broad approach to law enforcement. It is unclear the extent to which Section 8 Voucher recipients are being perceived to be causing problems or if they are actually causing those problems. But irrespective of that point, the response by the police in Antioch seems to be to allegedly harass all African-Americans, regardless of their Section 8 status. This is the heart of the racial-profiling allegation.

What we see then is a pattern of behavior not only in terms of police profiling, or perceptions thereof, but in terms of the handling of the matter.

Throughout the Buzayan case, a more honest and forthright approach really could have avoided many of the lawsuits and legal remedies that ultimately resulted.

The acrimony between the police and the HRC did not necessarily have to result from events.

As Cecilia Escamilla-Greenwald wrote in 2006 in response to Jim Hyde's parting words:
"After many months of hearing from members of the public, last summer we met with the police chief over concerns about the growing number of complaints about police misconduct. These meetings and interactions quickly turned adversarial as the police chief became defensive. Instead of engaging in public dialogue over these very serious issues, Chief Hyde retreated--he cut off communications with the HRC, he pulled his liaisons to the commission, and began a concerted public campaign to discredit the efforts of the HRC to reach common ground on reforms that could be done within the department."
"The Human Relations Commission, after hearing repeated accounts from credible citizens in our community, recommended the formation of a Citizen's Review Board of the police department. The Police Chief reacted negatively and with attacks upon the HRC as well myself and members of the community for even suggesting such a body. Once again, Chief Hyde reacted defensively and inappropriately instead of working with the community to resolve these problems."
The situation could have been diffused, perhaps by both sides. The City Council could have approached this by simply acknowledging a potential problem but suggesting that the civilian oversight board would be problematic in Davis. Instead the city endured attacks and allegations and heated rhetoric. No doubt everyone involved could have handled things better.

But we what see now is a pattern. That pattern has repeated itself in Antioch, far away from Cecilia Escamilla-Greenwald, the HRC or even the Vanguard.

At the same time, the response from the Antioch City Council is eerily similar to that in Davis.

Former Councilmember Ted Puntillo at the time of Hyde resignation called Hyde
"a very talented and probably one of the best chiefs that we could ever hope to have."
On Wednesday, the Contra Costa Times reports similar comments from the Mayor of Antioch as well as City Councilmembers.

On Tuesday, the Antioch City Council approved a nearly $17,000 per year raise for the Police Chief.

Antioch Mayor Donald Freitas:
"The salary increase has more to do with salary compaction but it also reflects an endorsement of Chief Hyde and the outstanding job he's doing. He has performed exemplary in the last two years, and has moved the department into the 21st century with the use of new technology. He's well-respected by the men and women under his command, as well as the community."
Councilmember Arne Simonsen:
"I'm sure there are other cities that would like a police chief like Jim Hyde... but I think the majority of people in Antioch would like him to stay."
I think the Davis Police Department is far better without Chief Jim Hyde here. Much work remains to be done, but so far, Landy Black's tenure as Police Chief has gone off without major incident. The city has been relatively calm since the departure of Jim Hyde. That and subsequent law suits in Antioch simply cannot be mere coincidence.

The Vanguard will continue to monitor the situation in Antioch and in the coming weeks, we will be speaking with some of the attorneys involved in the lawsuit down there and also possibly updating the public on the ongoing Buzayan Federal Lawsuit that is currently working its way through the Federal Court in Sacramento.

---Doug Paul Davis reporting

Thursday, July 24, 2008

Vanguard Report: Genesis of DJUSD's Fiscal Problems

The Vanguard has recently received a public memo from former Davis Joint Unified Superintendent David Murphy to the Board of Education dated September 20, 2006. The memo was a response to questions, requests, and comments pertaining to a proposed teacher salary hike of 6.5% and a concurrent proposed administrative salary hike.

In this memo are factually incorrect statements that ultimately led the school board to approve a 6.5% teacher pay hike based on claims in it that the district had the funding available over a three-year period to pay for this pay increase. At the time this was a factually incorrect assessment. According to sources however, it is likely that neither the Superintendent nor the interim CBO were aware of this fact.

At the outset, it is important to realize that this assessment should not be construed as an attack on teachers, the Davis Teachers' Association, or their worthiness to receive a pay increase. On the contrary, the Vanguard believes that in general, teachers are well underpaid for the services they render to a community and to society as a whole. Rather, this points to specific problems in DJUSD at the time, that led to the need for changes to be made both in terms of fiscal accounting practices and personnel.

Finally, it should be pointed out that the problems that led to this incorrect assessment have been taken care of. The District's commissioning of FCMAT as discussed in our investigative series on the district's former Chief Budget Officer revealed key flaws in the district accounting practices--flaws that have now been corrected by current CBO Bruce Colby and new Superintendent James Hammond. In other words, these problems will not repeat themselves in the future, however, they do have a lasting impact the district's current budget situation.

According to Bruce Colby, this pay increase cost the district roughly $2 million in salary increases. Looking at that within the context of the original and now current budget shortfalls, one quickly realizes the magnitude of such a situation.

The Memo

Beginning on page 2 of the memo the former Superintendent writes:
"Our budget experts, Cathi Vogel [Ms. Vogel was the interim CBO who was hired to temporarily fill Mr. Tahir Ahad's position and occupied the position until the hire of Bruce Colby in 2007] and Maureen Fitzerald, both of whom are fiscally conservative in a responsible way, have said that the three-year projections of ongoing expenditures have ongoing revenues. Maureen has assured me of this. Thus, the funds are there to support whatever the board wants to do--to fund the 6.5% for all employees or to use some or all of those funds for other purposes. Thus, a fiscally conservative superintendent would say that the funds are there for board decision-making, according to board priorities about what is in the best interests of the district, all things considered."
He continues:
"Given that the funding is available, given the other considerations of funds for the district programs, and given the effect on ALT members of board choices, I do think and would recommend that the board fund the 6.5% improvement to the ALT salary schedules as the next priority item to fund. In fact, I do think that would be in the best interests of the district and board priorities, all things considered."
A board member then asked:
"Since I have been on the board, the unappropriated amount of the ending fund balance has always been considered "one time money." How can we justify this change?"
The Superintendent responds in his memo:
"The fiscal solvency of the district's budget is detailed in the three year projected budgets, based on a 6.5% increase to all employee salary schedules [this included administrative pay raises at 6.5% in addition to teacher pay raises]... Maureen assures us that the ongoing expenditures of 6.5% increases to employee compensation packages have ongoing revenues to support those expenditures."
Inaccurate Information Provided to the Board

The board was told that they would have to use one-time reserves the first year of this pay increase in order to cover the expenditures. After that, monies would become available on an on-going basis to pay for the salary increase. The board was told that this increase would thus only require a one-time use of one-time money. As it turned out, this was not accurate either.

The three-year ongoing fund projection was wrong. There were at least two glaring errors in it.

First, the budget was missing some positions that were being paid $400,000. FCMAT discovered this in their report to the school district.

Second, there were changes to special education funding that were not factored in and this accounted for nearly half a million dollars in expenditures. Both of these errors accounted for $900,000 or just under half of the money spent in the salary increase.

The district would keep itself fiscally solvent and the budget on the positive side by spending the district's voluntary (as opposed to the state mandated) reserves. As those reserves have become depleted however, the district has run into huge fiscal problems. [On a side note, districts such as Woodland right now are using their reserves in order to remain fiscally solvent and they will likely run into similar budget problems in the next few years if this economic downturn continues].

What is the root of these problems? According to a board member at that time, the problem largely consisted of problematic budget tracking procedures that were in enacted under Tahir Ahad.

Again please see our four-part series on the former CBO for a more detailed explanation.

Basically the money in the district was poorly tracked. It was difficult to distinguish on-going funds from one-time money. Carry-over money and other one-time money was rolled into the general fund masking the differences between funds and funding sources.

It is the best guess that the Superintendent probably did not know at the time he was providing the board with incorrect information.

During this time, the role of keeping track of the money had fallen to interim CBO Cathi Vogel. Ms. Vogel repeatedly told the board that it was difficult and murky to figure out what was going on in the books. As the FCMAT report makes clear, the former CBO had left the district with the books in a complete mess. In addition to FCMAT and the work of an independent auditor, it would take present CBO Bruce Colby nearly a year to figure out the district's fiscal situation. These problems are now corrected and this type of problem will not happen in the future.

Nevertheless, the damage was largely done. The district has to heavily rely on their professional staff to make assessments about the viability of new spending programs. There is little doubt that the district is inclined to give teachers salary hikes when the money is available. However, they need to be able to make fiscally sound decisions based on the advice given by professional staff. They need to be able to make informed decisions.

During this incident they received incorrect information based on sloppy accounting practices of past employees and poor decision making by present employees. As a result, the district has dismissed employees who were not providing them with good advice, and put into those positions, individuals who they trust to accurately tell them the truth of their fiscal situation.

One cannot stress enough the importance of the FCMAT report or the changes that the district enacted as a result of that report.

Again, for further information please take a look at the Vanguard's reporting on FCMAT and the problems with the previous accounting system and subsequent changes to the system that have made the district far more sound in its fiscal decision-making.

---Doug Paul Davis reporting

Wednesday, July 23, 2008

Vanguard Radio Tonight from 6 to 7 on KDRT

Guest will be Davis City Councilmember Lamar Heystek. He will be an in-studio guest from 6 to 7 PM tonight on KDRT 101.5 FM. We will be talking primarily about the Charter City Measure that will be on November's ballot. Listeners are encouraged to call in at 530.792.1648.

Housing Element Workshop Brings Growth Debate and Complaints About Process

The city council held a short workshop on the Housing Element Steering Committee’s recommendations along with recommended modifications posed by the Planning Commission and agreed to by the planning staff for the city.

Unfortunately, the Mayor Ruth Asmundson, only scheduled a short period of time for the workshop. It went from 5:00 PM to 6:30, with only a fifteen minute time period for public input. By the time the staff presentation finished, the council had only about five to seven minutes each to speak.

One has to question the usefulness of such a brief discussion on such an important issue. Nevertheless, even the brief time, sharp policies differences erupted between members on the council over the amount and direction of growth.

Councilmember Sue Greenwald questioned why we need these specified new sites. “We have dramatically decreasing home prices right now.” Median home sales prices since 2005 between first quarter of 2006 and first quarter of 2008, we have a 26% decline in home prices according to the Sacramento Bee home sales database. According to the San Francisco Chronicle—“Bay Area home prices plunge 27% in the last year.” She said these numbers are consistent with Davis. “These are areas that are considered higher end and immune to decrease.” Furthermore, she continued with the argument that there is no correlation between new housing permits and housing prices in Davis. Other trends are what are driving the market. She believes that this trend will continue for the next few years. So given the fact that we have already completed our regional fair-share of growth, she does not see the need to grow before 2013.

Councilmember Greenwald also discussed senior housing briefly. “In terms of senior housing, I think we need to separate out housing that is desirable for seniors from senior only housing complexes.” She suggests that a condo-complex downtown would be much more appealing to seniors, than a senior-only complex on the periphery of town.

Mayor Pro Tem Don Saylor on the other hand, argued that we need more growth.
“I think that we do have needs for housing.”
He continued,
“I think there is several categories of need, and when I see the page in the report that you’ve just shared with us, I am concerned that we are not providing virtually any supply or addition. However, you cut it, building 44 in one year and 14 the next year, doesn’t get at the need that I believe that our community has.”
“As we work through this process, from my perspective, I am interested in balancing how we address those community needs for additional housing supply with a careful respect for the character of the community as we change.”
Mayor Ruth Asmundson:
“I also agree with Don, we need to have some housing. We can’t stay at zero housing. There has to be some growth to stay healthy.”
She wants to determine what our housing needs are and she wants them to determine how we grow and how much.
“There has to be growth in Davis to keep us healthy. I always have an analogy you know it’s like a baby. The baby is so cute, so adorable, that you wish that this baby wouldn’t grow. But if this baby doesn’t grow, then this baby will become retarded. And so it’s the same thing with the city.”
Sue Greenwald briefly said that we do not need to grow to be healthy. She cited the example of Pittsburgh, PA, which has declined in population but is now thriving as a city more so than several decades ago. She said we have to be realistic about growth and sustainability. She argued that more growth does not lend itself to sustainability.

A number of members of the public came to speak. Due to the abbreviated speaking period, some only spoke for one minute. Others spoke for two minutes.

Matt Williams made some interesting observations during this time.
“I was taken Mayor Asmundson about your comment about nurturing a child. One of the things that we do when we nurture a child is that we feed it. But we also take it to the doctor and we rid it of parasites. We treat the things that are eating up the city from the inside. One of the biggest effects on our city is UCD—in both positive and negative ways. Growth can happen by adding additional houses. What I’m hearing from Councilman Saylor and you, is that what would seem to be the only way to growth would be to add houses. It would seem to me that if UCD steps up and does what it needs to do. If it helps us rid the city of the negative effect of the university, by skewing the supply and demand curve. Using up all the supply of rental housing for students. Instead accommodates the students on the campus, the way other UCD’s do, we would indeed be able to grow. We would grow with our existing amount of housing. And we would see the people who would be added to the city, be close to the core, contribute to the businesses downtown by being more demand for their services, and their products. And we would end up with a more vibrant Davis.”
A numbers members of the public then came up during the public session of the regularly scheduled meeting to complain both about the timing of the meeting and the very short length of the public comment period for such an important issue.

One of those people was Eileen Samitz who made the point:
“Also the scheduling of these issues… to have a controversial issue like the general plan update, which was affecting the entire community, to schedule it at 5:00, when people like myself have to take off from work to get here… This is not what our city is about. Davis is supposed to be a model of democracy.”
Mayor Ruth Asmundson responded to these complaints from the public.
“Let me just talk a little about the public comment… At first this was supposed to be just a workshop. But we decided to put 15 minutes for those to speak that couldn’t make it to public comment at the regular meeting. If there are needs to have more discussion we’ll have it at the end. What I’m trying to do here is trying to juggle conflicting demands. Some council members don’t want to have too long meetings. Some council members don’t want to have that many meetings. But we are trying to make sure that we are having a healthy public engagement. And we’re going to be looking into how we can do that. The fifteen minute rule, if we have to go on, we have business to take care of. The council met at five o’clock, we have other business to do. I wanted to make sure council had an opportunity to have dinner before too long. And so that’s why the fifteen minutes.”
Councilmember Lamar Heystek asked for a future meeting to discuss some of the operating procedures. He is concerned about council communications being so late in the hour under the new policies.

Councilmember Sue Greenwald also disagreed with the new policy limiting public comment to fifteen minutes.
“I share the concerns that a number of the members of the public had. For example, when you said that initially you were going to have a workshop without any public comment, we always, when we discuss any item, have always had public comment. It’s been understood that it is not something that is at the discretion of the mayor.”
She continued:
“I personally feel that limiting public comment is a huge mistake in terms of time. There’s been very few times when public comment really is very long. And when it does, it’s usually because there is a room full of young children who want to keep a hockey rink open or something. And you’re not going to want to cut them off. I guarantee you. And it’s going to look very bad when you let them talk for a half an hour but you haven’t let other citizens talk for over fifteen minutes. It will look arbitrary and capricious.”
It is unclear what will come of the discussion of process. From a personal standpoint, I have always had much more grave concerns about process issues than policy issues.

From a policy standpoint, there will be future discussion in September on the Housing Element. There is a clear disagreement in the direction that the city needs to go. I think there is some opportunity however, even within that disagreement for consensus building.

There seems to be a joint desire for development in the core. I think the ideas that Matt Williams brought up about the university taking a larger share of the responsibility to house students, faculty, and staff, make a lot of sense. This came up during the campaign. I do not see disagreement on that particularly issue by the council. Mayor Pro Tem Don Saylor, while suggesting that was not enough, did seem to support the idea of more housing on campus. If we begin where there is agreement, we can see a less rancorous council.

On the other hand, if we begin with some of the more controversial proposals, if we push Measure J projects like Covell and Nishe first, then we will see more discord on the council and a stronger divide between those who favor a more measured approach to growth taking into account current housing needs within the city, regional trends, and those who would like to see closer to the 1% growth cap.

---Doug Paul Davis reporting

Tuesday, July 22, 2008

State Senate Majority Leader Calls For New Rules Protecting Public Access to Court Rooms

The recent problems in the Yolo County Courtroom have led one of the foremost legislative advocates for open government, State Senate Majority Leader Gloria Romero (D-East Los Angeles) to call for the Judicial Council of California to adopt new rules protecting public access to courtrooms.

In addition to Senator Romero's role as Majority Leader, she also chairs the Senate Committee on Public Safety.

According to a release from the Majority Leader's Office on Monday, the California Supreme Court, upholding the constitutional right to public trials, has held that a judge may close a courtroom only under very limited circumstances and after making specified findings on the record in open court.
“The recent incident in Yolo County is a shocking reminder of how easily these constitutional rights can be violated... Open, public courts are a cornerstone of our system of justice.”
“Sheriff’s deputies must provide bailiff and security services to county courts in a manner that protects the constitutional right of defendants to a public trial and the right of the public to attend court proceedings... The Judicial Council’s pending rulemaking on courtroom security provides an ideal opportunity to be proactive and ensure that courtrooms throughout California are open to the public.”
In a letter to William Vickrey, the Administrative Director of the Court on the Judicial Council, Senator Romero wrote:
"The recent incident in Yolo County is a shocking reminder of how easily these constitutional rights can be violated. On June 18, 2008, during the arraignment of a defendant charged with murdering a sheriffs deputy, courtroom deputies locked the media and public, including the defendant's family, out of the courtroom. The deputies allowed the victim's family and other law enforcement officers into the courtroom through a side door. An internal investigation concluded that the deputies did not follow the presiding commissioner's order that entry be on a first-come, first-served basis. The sheriff said locking the courtroom was a mistake but that he did not intend to discipline the deputies involved. The county's presiding judge said that he lacked authority to take action against these deputies because they provide security services to the courts pursuant to contract."
Furthermore she was concerned with the fact that this was not simply an isolated incident that indicated a simple mistake:
"News reports indicate that this was not an isolated case of denying access to court proceedings in Yolo County. Moreover, anecdotal evidence indicates that bailiffs in other counties have unlawfully locked courtrooms, such as during the start of afternoon session while a judge finishes up cases left over from the morning calendar."
The Senator is proposing new language to the Superior Court Law Enforcement Act of 2002 which requires the presiding judge and sheriff in each county to develop a security plan. The suggested language would require sheriff's deputies to provide courtroom security services in a manner that protects the right to public court proceedings.

The proposal adds two key sections. First:
"Each court security plan must address how the presiding judge and sheriff will ensure that security services are provided in a manner that protects the Sixth Amendment right of criminal defendants to a public trial and the right of public access to court proceedings under the First Amendment and Section 124 of the Code of Civil Procedure."
"Describe policies and procedures for ensuring that security services are provided in a manner that protects the Sixth Amendment right of criminal defendants to a public trial and the right of public access to court proceedings under the First Amendment and Section 124 of the Code of Civil Procedure. Describe the training to be provided to ensure that courtrooms remain open to the public unless a lawful court order authorizes closure. Describe outreach efforts to local media and any Bench-Bar-Media Committee to facilitate discussion of concerns about fair trials, the free press, and other key issues affecting the courts, the media, and the public."
According to the Senator, requiring counties to address these constitutional rights will:
"will guarantee that county judges and sheriffs specify how they will protect these rights when they develop their security plans before the November 1, 2009, deadline. It will enable them to identify education and training necessary to ensure that no deputy or court staff mistakenly denies the public or media access to court proceedings. It will help counties avoid the expense of having to retry a defendant if a conviction is overturned because the constitutional right to a public trial was violated."
Senator Romero continues:
"As you know, open court proceedings are a cornerstone of our system of justice. Openness assures the public that justice is administered fairly and guards against prosecutorial bias and perjury. Public confidence in our judicial system will quickly erode if we do not take steps now to ensure that courts do not operate in secret. Thus, I strongly urge you to revise your pending rules to help protect the constitutional right of public access to courts."
Senator Gloria Romero has a long track record in advocating for open government. She has been outspoken in several attempts recently to open up police records to public scrutiny. She has successfully modified the Brown Act to facilitate open government in local meetings. And now she has proposed strong new language that at the very least will make presiding judges cognizant of their responsibility to provide open court proceedings. Such changes will, if nothing else, force presiding judges to consider the consequences of locking courtroom doors.

Yolo County must continue to sort out this situation on their own. However, it is clear that the rest of the state has taken notice, and that can only be a good thing in terms of bringing down pressure to resolve the situation in the best possible way.

---Doug Paul Davis reporting

Monday, July 21, 2008

Commentary: Back to Square One in Case Involving the Killing of a Yolo County Sheriff's Deputy

It was not surprising that a Sacramento court of appeal rejected the petition from the Yolo County Public Defender's Office. The public defender had asked the court to order the response of seven Yolo County judges to defense allegations that they could not hear the case because of apparent biases against the defendant.

It was a curious strategy from the start but perhaps was aimed to get information about the judges in order to seek a change of venue which seemed from the start the more logical course of action.

Here we are now, over a month after the death of Sheriff's Deputy Jose Diaz. And really not much has changed.

The case for change of venue seems so clear, so straightforward. The question has to be at this point what are we missing.

We know Diaz worked as a bailiff in Yolo County. We know that his colleagues in the Yolo County Sheriff's Office conduct the security. Any claims that they might have had that they could do their job in a professional and non-biased way, went by the wayside on June 18, when sheriff's deputies, under orders from someone that has not been identified in public, locked the doors of a county court building, preventing public access while filling the courtroom with fellow officers through a side door.

We also know that the Sheriff himself dismissed this as a mistake. This was no "mistake" in the sense that the doors were not accidentally locked. It was intentional.

There is also evidence it seems that Yolo County Judges put their court in recess in order to allow the Sheriff's Deputies to fill the court. What we do not know and has not been proven is that this action rose to the level of collusion as the defense has claimed.

Finally this has been the first major incident since Dave Rosenberg took over as presiding judge. As such, he has been quick to put blame on the Sheriff's Department and slow to step up with any kind of solution to the problem.

People keep wondering the same thing--why is Topete getting this kind of attention. There are two key points here. First, everyone is entitled to due process under the law.

The sixth amendment, which is not one of the amendments you normally see quoted in spaces like this, is very clear in terms of constitutional requirements in the right to a fair trial.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State...
The second point is that really the constitutional issue of the right to a public trial is trumping the actual crime committed. Topete will get his day in court and in all likelihood will be convicted of his crime and sentenced to the appropriate punishment.

However, the bigger issue at stake extends beyond this somewhat simple case of man shooting officer of the law. It extend to the very foundations of our justice systwm. To the very core of the right to a public trial.

Why did the framer's specifically require trials to be public?

One of things that separates tyranny from democracy is the notion of transparency. The ideal that people will know the charges against them and not be held in some sort of Kafka-esque state of confusion. By forcing a public trial where the charges have to read against the defendant, the state itself has to answer for and support the deprivation of life, liberty, and property. The due process of law as spelled out both in the constitution and in 200-plus years of common law is what prevents the government from taking arbitrary action against defendants and thus protects us all from the potential for a tyrannical government.

That notion seems abstract and far-fetched today, but when the constitution was written it was a very real danger. Moreover, if you look over the history of this country, you will find shocking abuses through out.

In fact, this is precisely the type of case where you need such protections the most--where a perpetrator is accused of killing a law enforcement officer, someone that the law enforcement establishment is more likely to seek to protect.

Finally, this is big because once again it exposes the dark underbelly of our county government and its justice system. Once again people are forced to question those in charge and why business seems to be conducted in this manner on a consistent basis.

As we learned through this process, this is not the first time that this kind of "mistake" has occurred. And mistakes that repeat themselves are hardly mistakes anymore.

So you will forgive me as we demand that our justice system acts appropriately. You will forgive me if I revisit this issue yet again all the while transferring the attention from the crime allegedly committed by Mr. Topete to the abuse allegedly committed within our justice system.

At the end of the day, we will unfortunately survive the common street crimes of Mr. Topete far better than we could ever survive a justice system that has run amuck with favoritism, cronyism, and the random violation of constitutional rights. I am not saying that these things occurred, only suggesting that those are my top priority to prevent. We have ways to deal with street crime. The latter is far more insidious.

---Doug Paul Davis reporting

Sunday, July 20, 2008

Early Meeting Set for Housing Element Discussion

Covell Village II Big Issue on the Table

There will be a special workshop to open this week's council meeting from 5 pm to 6:30 pm. Then the council will begin its normal meeting with a full agenda including public comment at 6:30 or 6:45.

The question one might automatically ask, is why put the most important topic, that of the housing element discussion at 5 pm when people are not paying attention and many are just getting off from work?

One of the things that will happen during this meeting is that there will be modifications to the site rankings as laid out by the Housing Element Steering Committee.

A key change that will occur is that the Housing Element Steering Committee (HESC) rank ordered all the sites. They also divided the top 20 into "green light" sites where development would be given a priority and was expected to occur during this general plan cycle and "yellow" and "red" light sites where they saw develop occurring in future general plan cycles depending on the growth rate set by the city council.

Now the Planning Commission and city planning staff recommends removing the ranking numbers from the 20 "green light" sites.

According to the staff report:
"Development applications should be allowed for these highest ranked sites. Although the property owners of several of these sites are likely not ready to submit applications in the near term, development status will be monitored to ensure that the 1% growth cap resolution is not exceeded."
Other recommended changes:
  • Move Oakshade Affordable Housing from #26 to green.
  • Move Nugget Fields from #28 to Green.
  • Keep Lewis Cannery at #21.
  • Move Wildhorse Horse Ranch to #22 from #27.
  • Willowbank Church: Move from green to yellow.
The rationale on Lewis Cannery and Wildhorse is:
"This site and the Wildhorse horse ranch site (below), with current development applications, are recommended for the top two rankings of the “alternate” sites because they are relatively large sites currently in the city not used for agriculture and can provide a mix of housing types to meet housing needs."
An additional reason might also be that both Lewis Cannery and Wildhorse Horse Ranch have been moving forward with actual development proposals while some other properties are in the more theoretical stage.

One of the groups hoping to move up as the result of this meeting are the Covell Village Developers. The Vanguard has received word that these developers have been working hard to mobilize a huge turnout of seniors who will advocate for the Covell Village Senior Project Proposal.

Having seen their large development that was proposed in 2005 voted down by a 60-40 margin, the Covell Village Developers have broken down their latest proposal into three phases. The first phase is to develop a senior housing facility on the southern portion of the 386 acre parcel.

Few of the seniors who have met with the Covell Village Developers have been told this is only the first part of their plan.

The Housing Element Steering Committee spent considerable time on the Covell Project. There are concerns about prime agricultural land in the bottom portion of the land, where the senior housing facility would be. And there are concerns that the upper two-thirds of the project rests in a flood plain that would represent considerable liability for the city both physically and financially. State legislation in recent years has placed the financial burden on cities who build in flood plains and will no longer bail out cities in the event of a flood.

In addition, the Covell Village developers have purchased additional land north of original property to act as their 2:1 Ag mitigation.

As a result, the Housing Element Steering Committee, composed of a number of very strong supporters of Covell Village including Chair Kevin Wolf, who was a huge advocate for the project in 2005, ranked Covell Village very low as a site. The developers who own the property have been working hard to change that ranking. And are expected to pack the chambers with seniors that they have worked with to bring on board.

Opinions by leaders in the Senior Community vary as to whether or not we actually need additional senior housing. Recent events at Covell Gardens have suggested the need for extreme scrutiny when building and opening senior care facilities. Many seniors have expressed an interest to not downsize and move into a senior community. Many like to live with the general population to begin with. The demand from the local senior population is unclear.

Personally, while I favor slower growth in an environmentally sustainable manner, if I am looking to add housing first, I would look to see infill projects on sites already incorporated within the city. As the HESC indicated, we have plenty of those type of sites and projects to meet our housing needs for the next general plan period.

Second, if we are to add housing I would look toward workforce housing, housing for UC Davis faculty, and student housing first. Those people who work in Davis but do not live in Davis should get the first priority for new housing. Concern has been expressed about the vacancy rate in Davis for apartments and student housing. This is where the priority should be.

It should be noted in the staff report, the only mention of Covell Village is the preference to plan for the Lewis Cannery site in consideration of the adjacent Covell Village site. This remains a chief concern of mine with regards to the Lewis Cannery site. Many have suggested that the site is better suited for high tech or light industrial use. I am circumspect on the type of development that needs to go there and for the most part agnostic. What I am bitterly opposed to would be the use of Lewis Cannery to facilitate development on the adjacent Covell Village site.

Any effort to get the property to move up is coming entirely from the developers and not from the HESC, the Planning Commission, the city planning department, or even the Davis City Council Majority.

I am not one who believes that the 2005 Measure X forever precludes development on the Covell Village site. However, there are many places that should be developed before we even start considering this. It appears that the Covell Village developers will not take no for an answer here. And that at some point we will go through this process once again.

---Doug Paul Davis reporting