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Saturday, February 07, 2009

Drastic Measures and Grandiose Gestures by the School District

The headlines that came out of Thursday's school board meeting were dramatic with the Superintendent suggesting that the top four administrators would take double the pay cut that they were asking teachers to take in order to send the message that they were serious about the school budget crisis. Beneath those sensational headlines is a truth that is every bit as bleak but perhaps not quite as sexy.

The truth is somewhere in between here. The first factor that people need to understand is that in some ways what was discussed on Thursday night was the choice of the school board. They were presented options the previous week and could have chosen to self-qualify.

Self-qualification is a complicated process that was explained on the Vanguard radio show fairly well on Wednesday night. But in short, given the budget crisis, the district could have taken the latest assumptions from the governor's budget, said that they would deal with 2010-11 in due time, and cal it a budget.

The problem as Cathy Haskell current DTA President and Ingrid Salim, incoming DTA President explained on the radio show is that the board was told last year that self-qualification would be a red flag to the county that there were fiscal problems. That is because a large extent of the district's fiscal problems last year were in-house and local. That is not the case this year. There are estimates that 70% of the state will self-qualify. The reason for self-qualification is that the first two years of the budget would be balanced but the third year, 2010-11, would have an on-paper deficit that would need to be addressed. In a state budget crisis year, this is not the alarm bell that it would have been last year.

Nevertheless the board was not comfortable with self-qualification and instead are looking for the three year balanced budget. The result is additional pain of trying to anticipate three years out without even hard numbers for this year's budget. And they must do it by March 15.

As Sheila Allen put it on Thursday:
"It's just so frustrating that we have deadlines that we have to meet and other elected officials are not. So we're working with 'fiction' and we're messing with real people's lives when it's based on fiction, it's very frustrating."
In addition to the school board making the situation harder, Thursday's budget also assumed no flexibility. This is probably a wise decision at some level. The CTA has launched a veritable battle against any flexibility in CSR (Class Size Reduction) requirements. Moreover, they have opposed categorical flexibility as well. Still, it appears likely there would be some flexibility.

As we walk quickly through the numbers, all of this suggests that the grand gesture (largely symbolic) made by the top four might actually be a worst case scenario rather than the operating assumption that was suggested in the headlines on Friday.

The budget challenge as laid out by Bruce Colby is how we reduce the cost of delivering our programs without reduce the level of the programs we provide. Moreover, the district has a structural deficit, it is basically eating at least $1 million in reserve each year by these budget assumptions. It is doing that in order to both maintain our programs and avoid the painful layoffs that were proposed last year.

In short, what the district needs to do is to reduce on-going expenditures by $4.9 million or more over the next two years to maintain fiscal solvency. That is $3.3 million in 2009-10 and an additional $1.6 million in 2010-11. And 2010-11 is probably on the low side unless the economy and budget forecast improves. Even with that, the district will continue to have a structural deficit of $1 million which will need to be addressed by 2011-12.

As Associate Superintendent Bruce Colby said:
"At some point we will run out of reserves and we will have to close the gap for the last million dollars."

The district examined the salary breakdown for 2009-10 by bargaining unit. Their proposed cuts are roughly proportional cuts across the three classifications ranging from 3.68% among classified (support staff), 3.88% among certificated (teachers) and 4.15% among unrepresented (management and administrators).

Under this scenario they are taking out three counselors, they think they can find 200,000 by shifting around unused parcel tax money, but $910,000 is coming from increasing the student to teacher ratio for grades 4-12 which are not governed by CSR requirements. That means losing teachings, perhaps as many as 14. Some of that could be obtained through attrition--retirements and transfers.

However, and here is where the real painful decisions come in. Those cuts still leave the district one million dollars short.

So the bottom column on the grid shows the possibilities for accomplishing that savings. One is what was talked about last week, would be federal stimulus package dollars. It is possible the district will get $2.7 million, but we would have to look more closely at the Senate's version. There is also a possibility that the Davis Schools Foundation will be able to raise some of that money, but these days are a bit tougher for raising money than a year ago.

On the other side of the ledger are flexibilities that could be granted by the legislature. The adult education program has a $200,000 that is categorical money, which means that the district could be allowed to use it for general fund if they get flexibility on that. There is an additional $1.1 million in categorical money that could be used if granted by the legislature. And then there is about $1 million in CSR that could be used if they raise the ratio of students to teachers from 20 to 22. However, as mentioned that is going to be a political fight and the DTA seems to believe that there are other ways to get that money.

Now here is finally where we get to the sexy headlines which are not so sexy. If all else fails, one possibility is that the teachers and in fact all employees take a 2.5% pay reduction. That would free up $1.26 million that would cover that million hole.

It is here that we see the offer from the top four administrators coming into play.

Superintendent James Hammond:
"If there were to be any type of salary reduction for employees, that we would double whatever that salary reduction would be. So if we are looking at a 2.5% reduction to every employee in the district, then we the four of us would incur a 5% reduction for the 09-10 school year in order to contribute to our ability to prevent layoffs."
And let us not take away from this gesture. Because it is important to know that the administration is willing to share the pain, particularly after we have been so critical of Bruce Colby taking a pay increase of roughly 5% in these budget times. He is willing to give that back should it be needed.

As Board President told the Enterprise:
"They've being leaders."
But clearly this is the worst case scenario and the last resort. However, it does appear that the administration got the message from the community that has complained about administrative raises during a year when the district was contemplating layoffs and teachers were not getting raises.

The bottom line here is that while that gesture is appreciated a lot has to go wrong for it to be implemented.

However, we are not done. The cuts in 2010-11 under current assumptions amount to $1.65 million. Remember however those are on top of the cuts that would be implemented for 09-10.

At this point we are really getting into pure personnel unless the district gets stimulus money, gifts, or categorical flexibility. Because the district is looking for a three-year balanced budget, they are looking at 8 teacher layoffs for $520,000 in savings, 12 secretarial layoffs for another half million, and the loss of nearly three site administrators for $295,000. The latter represents a 6.26% cut in funding for the unrepresented bargaining unit, compared to 4.59% for classified, and 1.59% for certificated.

Those cuts however still leave the district nearly $300,000 short of balance.

In short, the district is making a lot of tough decisions right now that they really might not have to make depending on how the budget pans out. Much of this is due to the board's apprehension to do a self-qualification and work toward a balance for 2010-11 with more realistic assumptions.

There are going to be teacher's noticed. That is now unavoidable. It will not be the 100 or so that were noticed last year. But as the DTA representatives said on Wednesday, that took a huge emotional and psychological toll.

As Superintendent Hammond put it:
"There could be overnoticing going on but we do not know what the rules of flexibility are going to be."
As Board President Gina Daleiden put it:
"No one would do this unless we were at the very last resort."
I understand some of the rationale for doing it this way, but I'm not fully convinced it is the last resort. Given the state budget picture, a self-qualification does not seem to put the district in the kind of risk they would have been in last year, they need to trust their Superintendent and Chief Budget Officer who just last week recommended the self-qualification route to avoid these kinds of drastic cuts that may not have to be implemented. I understand the frustration that Board Member Sheila Allen expressed at the state budget process, the school districts are one of many victims of that inaction. But I am not convinced this was the only way to do this based on the other alternatives out there.

---David M. Greenwald reporting

Friday, February 06, 2009

General Plan Updating Process Begins

On Tuesday night, the Davis City Council will start take steps towards developing a plan of attack for the next General Plan Update. According to the staff report:
A General Plan update would potentially address all of the Council goal categories of: Infrastructure; Fiscal stability; Downtown Davis; Housing; Sustainability; Safety and Health; Organizational Strength; Civic Engagement; and Long-Term Visioning.

In particular, a General Plan update would address the Long-Term Visioning goal: “Prepare for the lasting success and well-being of the Davis community by engaging in long-term visioning.”
The city is looking at a process that would initiate an update through 2035 but could include a long range vision for Davis perhaps up until 2050. The recent housing element process has focused on housing strategies in isolation from other long range community issues.

Other issues that city staff wants to address include:
• Sustainability and AB 32 requirements.
• Economic and business related sustainability.
• Community and resident health.
• A general study of senior needs including housing, transportation, recreation and
social services.
• Ultimate urban growth and ag preservation boundaries.
• Open space / greenways system.
• Growth and balance of housing, employment, retail and services.
• Vision for the downtown and its development intensity.
• Multi-property planning on the edges of the City where coordinated planning would better address issues that may cross parcel boundaries.
• Fiscal impacts of alternatives.
• Planning for the January 2012 – June 2019 Housing Element planning period and
• Explore possible new locations for city and DJUSD corporation yards and the PG&E service center.
One of the challenges the city faces right now is the cost to the project including EIR costs. According to the staff report, costs range from $1 million to $4 million with a typical cost from between $1.5 million to $2.5 million. With a time frame ranging from two years to upwards of five years.
"Staff recommends that the Council determine what kind of a General Plan update is wanted / needed while being sensitive to the difficult budget conditions the City faces, as well as other priorities. After a “first cut” at deciding what kind of General Plan update, staff can return with more information and options for funding the update.

Concerns with City fiscal and budget conditions have evolved since the original Steering Committee recommendation and the Council direction to initiate a “truly comprehensive General Plan update…to address a long range community vision to year 2040 or 2050…with a broad community engagement program”."
The report also accesses the strengths and weaknesses of the current general plan.

The strengths include the fact that it is comprehensive, addresses and contains "smart growth principles," and was citizen based.

However, it also criticizes the previous report as long and unfocused.
"The lengthy document of almost 400 pages and 1,000 goals, policies and standards is difficult to use and focus on overall themes, key issues and trade-offs. The connections between the plan’s general visions and principles and more specific implementing actions are not always clear. Policies related to sustainability are not well coordinated."
"Not clear in its guidance of how the community should evolve in the long term, particularly in terms of residential and non-residential growth."
In particular,
"The 1% growth cap resolution is a helpful tool through January 2010, but does not a provide a quantitative basis for 20 to 25 years because the resolution was based on a housing needs analysis through year 2015 only. The plan provides the framework for promoting infill but does not address appropriate sites and the land use map..."
"Does not provide for reliable projections for financial and infrastructure planning."
There are three other criticisms. First:
"Individual development proposals and policy. Preferably, individual projects would not drive policy.
"Coordination with UC Davis plans. The City and UC Davis continue to be challenged to proactively address short and long term mutual interests and needs."
"New State requirements for general plans. New legislative requirements in general plans for the topics of climate impacts, water supply, environmental justice, and tribal contacts should be checked and incorporated as necessary."
The staff report then elicits a number of comments from council in terms of goals, what the updated plan should contain, what the process should look like.

On thing that might be interesting is for citizens to use the comment section of this article to express some of their goals and concerns about what they would like to see included in the next general plan. Issues such as sustainability, climate change, senior needs, urban growth boundaries, and sustainable economy ought to be considered. One of the main issues that needs to be address is what this community should look like in 2035. How do you want to see Davis change? What would you like to see remain the same?

Finally there is the issue with Measure J. The council had deferred discussion of Measure J until after the election. However, it still really has not addressed it. Are there three votes to keep the measure as it is currently written when it goes before the voters? When will that be addressed?

The staff report contains some other thoughts on Measure J. For instance, whether the General Plan update to go to a Measure J vote if it involves Measure J sites. Whether the entire General Plan package should go to a Measure J vote.
"One option for the Measure J renewal is to do a limited extension until the update is ready for a Measure J vote, and amend Measure J so that if an urban land use is approved by the voters then a second Measure J vote is not necessary."
That would seem to be a rather dangerous proposition for both sides. On the one hand, it might make it difficult to pass the general plan if there are controversial projects contained within it. On the other hand, it might make it easier to pass controversial projects. And once the Measure J vote is passed for the general plan, what safeguards the project to ensure that it does not get altered significantly from passage as part of the general plan. I certain do not believe I would support such a provision.

What other issues need to be addressed here? This is the beginning of the general plan process, the citizens need to take a very proactive role in insuring that their needs, values, and goals are addressed within the framework of the general plan updating process.

---David M. Greenwald reporting

Thursday, February 05, 2009

Commentary: The limits of Open Government and the Council's Right to Know

A few weeks the Davis City Council was trying to decide to what extent they had the right to demand to read the Ombudsman's Investigation into the Yolo County Grand Jury report. In a lot of ways it was a strange discussion. Let us forget for a moment about the content of that report and focus only on the process at hand.

City Attorney Harriet Steiner ruled two things. First, that the city manager had the right to determine whether or not the council could see something. Second, that if the council did view these personnel matters or a report deemed to cover a personnel matter, it could subject the city to liability. In essence, the city attorney deemed that in a city manager model, the council has no more right to view personnel records than members of the public.

Basically the city council hires the city manager. They are responsible for evaluating his performance. It was that evaluative process that led to the city manager's new contract that was approved last week in open session. However, as councilmember Sue Greenwald and Councilmember Lamar Heystek asked, how is the council supposed to evaluate the city manager, if they cannot review his work product. If they are in the dark about certain reports deemed "personnel matters," how can they determine how well the city manager has done his job?

And there is more. Implicit in the assumption by the city attorney was that viewing these documents somehow exposed the council to liability. However, there appear to be no precedents to back that up. One pervasive belief is that if the city council were able to see the full report, the firefighters union would sue the city. This is only speculation, but it has been suggested from multiple sources.

This whole discussion leads to two interesting things to ponder. First, what would have happened had a majority of the council determined they had to see the full report? And second, can and should the council change the system?

It is the second point we briefly ponder today. City Attorney Harriet Steiner upon questioning from Councilmember Greenwald did concede that the city could alter its model. It does not appear that the majority of council is interested in doing so. As I mentioned previously, right now the city manager model suggests that the council hires only the city manager and the city manager hires, evaluates, fires, promotes the rest of city staff.

However, apparently that is not the only alternative. Indeed if we look at the school district, we see a much greater role for the school board than for the city council. The school board is privvy to personnel matters and makes some of those decisions.

Implicit under those assumptions is that the elected members are not merely agents of the public, with the same rights as the public, but actually governing agents. From the standpoint of public policy, it seems problematic that the elected and publicly accountable city council members would have to take a backseat in such discussions to unelected city managers.

As we have discussed previously, the city council has the power to hire and fire the city manager, that is all. What we do not know is the extent to which the city council could use its ability to fire as leverage in this situation. The reason for that is that a majority of the council did not wish to force the issue.

This too is somewhat problematic. For it suggests a few things. First, that the power of a councilmember is extremely limited. Indeed, it has often been suggested that as a member of the public, I have much greater rights than a member of the council does. The majority has almost complete power to thwart the will of the minority in council when it comes to these kinds of issues. To an extent that we do not see in other forms of government.

A member of the council therefore cannot make demands to see documents with the power to enforce that decision.

The question is whether this needs to be changed. Should the elected members of the Davis City Council have the right to by themselves demand to see documents in order to make better decisions? Do they have any recourse when denied other than to politic to pressure the majority of the council or sue for access?

These are all questions that were brought up two weeks ago. It is our hope for the sake of transparency and accountability that this issue is not allowed to die.

---David M. Greenwald

Wednesday, February 04, 2009

Vanguard Radio Tonight

Tonight at 6 pm Vanguard Radio on KDRT 95.7 FM will have two representatives from the Davis Teachers Association talking about education, the district, and the budget. Joining us will be current President Cathy Haskell and President-elect Ingrid Salim.

Call in at 530.792.1648

Log on for live stream:

Former UC Davis Officer Claims Violation of Settlement Agreement

Documentary Evidence Suggests University Failed to Adhere to Their Terms of Agreement

On Monday the Vanguard ran a story on the lawsuit filed by former UC Davis police Officer Calvin Chang. The story has since been covered in detail in the California Aggie and mentioned briefly on the Davis Enterprise website. At this point, one of the hang ups has been that the university has not been served and thus not officially notified with the complaint. So at this point they cannot respond.

The Vanguard spoke briefly to UC Davis Police Chief Annette Spicuzza and Julia Ann Easley, Senior Public Information Representative at UC Davis News Service.

The Vanguard has now received a copy of the settlement agreement between Officer Chang and the university since in February of 2008. In that agreement, Officer Chang was to be paid by the Regents a sum of $240,000 of which $66,000 would go to his attorney.
"In exchange for the promises and warranties of CHANG as set forth below the REGENTS shall pay the total sum of $240,000 (two hundred forty thousand dollars). The $240,000 will be paid in two separate checks - one payable to Calvin Chang in the amount of $174,000 and the other check payable to James McGlamery in the amount of $66,000."
In addition to the monetary terms there were several key non-monetary provisions including the removal of identified negative documents from Calvin Chang's personnel file.
“To remove certain identified negative documents from CHANG's official personnel file and place them in a separate confidential file (''unsanitized file”) that will be maintained in the office of Campus Counsel, Steve Drown. CHANG, his attorney, and the attorney for the REGENTS will meet to cull through the official personnel file to determine which documents constitute such “negative” documents. A list of the documents that are removed from his personnel file and placed in the separate '''unsanitized file'' will be compile and attached hereto as Exhibit A.”
Moreover, for future employers, information would be limited to dates of his employment, title, and the fact that he has voluntarily resigned.

Specifically it authorizes that the regents will keep the "currently pending laundry-room Internal Affairs investigation open as "not completed." The University will expunge from Officer Chang's personnel file all letters or reprimand older than six months.

Here is the full listing of the items specifically agreed upon by both parties to be removed:

The complaint alleges a breach of contract stemming from the university not adhering to the terms of this agreement.

According to the complaint:
“A fundamental obligation of the settlement was to also preserve Plaintiff's peace officer career and coveted public safety retirement. As such, the settlement imposed a fundamental and material obligation on Regents as established by paragraph 2 of the settlement, that certain negative documents, that were the product of discrimination, be expunged or removed from his personnel file, and otherwise to comply with his rights under the Public Safety Officers Procedural Bill of Rights Act (Govt. Code § 3300 et seq., hereinafter "POBR").”
It continues:
Specifically, pursuant to the terms of the settlement, Spicuzza met with Plaintiff and counsel in open session, to review and agree on the removal of documents according to the obligations stated above as outlined in paragraph 2 and "Exhibit A" of the settlement. As a result of this obligation, pursuant to the terms of the settlement, the parties generated "Exhibit A," that delineated the documents to be placed in or removed from Plaintiff's personnel files.
This allegedly did not happen.
“However, defendant Regents unlawfully placed into Plaintiff's personnel file, adverse documents that negated the purpose and effect of the terms of the agreement. These documents have irreparably harmed Plaintiff's ability to successfully obtain other employment as a peace officer and have effectively denied him the ability to continue in his career.”
Instead the complaint alleges that a number of items were placed into Mr. Chang’s personnel file.
“Regents placed into and failed to remove from Plaintiff's police department personnel file, a letter dated January 18, 2008, authored by Spicuzza that placed Plaintiff on "administrative leave."
Regents also placed into and failed to remove from Plaintiff's police department personnel file two additional letters referring to and revealing the "Settlement" and to his "resignation."

Regents also placed over one hundred pages of negative documents into Plaintiff's peace officer personnel file located at the Office of Campus Counsel. Said documents consist of the most inflammatory and derogatory material, false allegations against Plaintiff, and Plaintiff's complaints against other peace officers, as contained in the full bound unredacted Seyfarth Shaw workplace investigation report.

Regents also placed into and failed to remove from Plaintiff's peace officer personnel file, two versions of a Kilday & Kilduff report adverse to Plaintiff's interests - regarding internal affairs investigations that Regents launched against Plaintiff immediately after Plaintiff was reinstated in 2004. Plaintiff is informed and believes, and thereon alleges, that said documents include, a yet to be fully disclosed, unwarranted internal affairs investigation against him by Regents in 2003 for alleged "insubordination" that consisted of "talking about his discrimination complaint."
According to the complaint, Officer Chang only became aware of these breaches after he was denied an employment position by several law enforcement agencies including the city of Davis. Recall that according to the settlement agreement, the university had very specific provisions about how requests for information were to be treated and what information they were to give out.

Instead according to the complaint:
“On July 22,2008, Campus Counsel Steve Drown told Plaintiff that REGENTS showed to the background investigator the above breaching documents, including the Seyfarth Shaw report as well as two versions of the Kilday Kilduff reports. Drown declined Plaintiff's request to read the documents, and declined to show Plaintiff the documents that were contained in his peace officer personnel file.

Plaintiff informed Drown that the documents were not to be in his personnel file, were in violation of the settlement, and that he requested to read them, that REGENTS must remove them, and allow him to provide a response to them after he has read them.”
According to the settlement agreement, the “laundry-room” investigation would be classified as open and “not completed.”

In fact, the complaint alleges that agreement was entered in based on fraudulent information and even then the defendants did not adhere to those provisions.

“As a direct and material obligation of the Settlement, Regents represented that the Laundry Room IA was still pending, had not been concluded, and would be maintained indefinitely as an "open investigation."

On or about February 4, 2008, in the presence of counsel for Regents, Spicuzza, a peace officer, verbally stated to Plaintiff that the Laundry Room IA had no finding, and further represented to Plaintiff that Regents would never disclose the existence or any information regarding the investigation to any party, including to any prospective employer - because it was an "open investigation." This obligation was material and conclusive in that the disclosure of the existence and the "open status" of an IA would substantially foreclose on the ability of a peace officer to obtain other police employment with a prospective employer.

In addition to fraudulently misrepresenting to Plaintiff that the IA had no finding, and would remain open as pending, when in fact this was untrue, Regents and Spicuzza concealed this fact from Plaintiff, in order to further its fraud, duress, and misrepresentation to support constructively discharging Plaintiff's employment through a fraudulent settlement agreement.

Among other things, Plaintiff was induced by Defendants' misrepresentations to enter into the settlement agreement and release certain claims and his pending discrimination lawsuit, and would not have done so if the Defendants had not made false representations, or concealed and failed to disclose the material information alleged above. This further denied Plaintiff his statutory rights under the Public Safety Officers Procedural Bill of Rights Act (Cal. Gov't Code § 3300 et. seq.).”
“Plaintiff is informed and believes and thereon alleges that Regents have disclosed to the news media that the IA was in fact closed as "sustained" against Plaintiff and that Plaintiff "resigned" as a result of the IA. Plaintiff discovered this fraud when he was contacted and questioned by the news media about what misconduct he had engaged in to be terminated from his position as a police officer.”
Brief Commentary:

Based on a reading of the settlement agreement, it would appear that Officer Calvin Chang would have a case against the University for breach of their settlement agreement. This is particularly damaging if true because the university would have interfered with his ability to receive new employment.

As originally mentioned, the university has not received a copy of the complaint and we have not heard their side of the story. The Vanguard will continue to follow this case as more developments occur.


Julia Ann Easley, spokesperson for UC Davis emailed the Vanguard Wednesday afternoon with an official statement from the University:
Although the university has not been served, a lawyer representing the University has reviewed the complaint filed by Calvin Chang.

The university believes the case has no merit.

The university entered into a settlement agreement with Mr. Chang in 2008 to resolve all of his employment-related claims and secure his resignation from the police department.

As a term of the settlement agreement, Mr. Chang agreed that anytime he signed a waiver authorizing a prospective employer to review his personnel file, the potential employer or its agent would be given access to Mr. Chang¹s entire personnel file. The university believes that it has complied with these and all other terms of the agreement.

Once the lawsuit is served on the university, the university will have 30 days to file a response with the court.
---David M. Greenwald reporting

Tuesday, February 03, 2009

Read My Lips... No New Taxes?

City Needs To Solve Its Fiscal Problems First Before Going to the Taxpayers for a Renewal of Existing Taxes

At the risk of sounding somewhat well... Republican, there is something to this at least from the standpoint of local government. It is really not that I am opposed to new taxes, it is that there needs to be some incentive for the city to negotiate hard this with the various bargaining units. Let us back up a few steps first here.

The city is facing an interesting dilemma. There is a long term structural problem facing the city with the scope of city contracts and the nature of pensions. There is a shorter term problem with the city's budget that has less to do with the long term structural problem than it does a short-term revenue problem resulting primarily from the recession and the loss of tax revenue.

If done correctly, the city can use the short term problem to give them the leverage to fix the longer term problem. However, that remains one gigantic "if." The temptation is going to be for the bargaining units to attempt simply to hold off on the tough decisions until the economy improves. So many of them will likely push to simply extend the current contract. The city must fight hard against that urge.

At last week's city council meeting, it became clear that neither the council nor city staff wanted to raise or impose any new taxes in the near future to solve the city's growing problem of unmet needs. While I agree with that approach, it does not solve the city's problems either in the short term or the long term.

Instead they have suggested that they will simply place the current taxes back on the ballot. That would include an extension of the Parks Tax, which is a parcel tax requiring two-thirds vote and an extension of the half-cent sales tax.

In order to get the sales tax on the ballot for a vote in June of 2010, they would need to have it ready by January 2010. To me that gives the city nearly one year to get their house in order. Because if they do not get their house in order, for the first time in my life I will not only oppose a new tax (which I did previously with the Parks tax), but I will actively work against the tax. I will get a group of citizens together, we will walk precincts, we will raise money, and we will run a campaign opposing a new sales tax.

In other words, the city will have to run a tax against organized and financed opposition.

Honestly, I do not want to do this for a variety of reasons. First and foremost, despite rumors to the contrary, I simply have better things to do with my time. Moreover, I actually believe there are vital services that the city offers and will not be able to do if they do not have that tax revenue. Frankly the services I would least like to see cut will be the ones that go if the tax revenue disappears.

On the other hand, we need changes and we need to give the city leverage to make those changes. Right now the residents of the city of Davis, many of them do not realize the peril that their city is in. Although as I talk to more and more people at Farmer's Market, it becomes clear that many are aware of these problems.

The city needs to negotiate hard on behalf on the citizens to fix these structural problems that loom.

First, it needs to be made clear, city employees are not the targets of this. The real concern is the rise of top-end salaries. If you look at the list of 100K jobs for the city of Davis, most of them are public safety employees and most of those are in exactly one department--fire.

The city needs to hold the line on the top end salaries. City Manager Bill Emlen showed good faith by not taking a raise, we need a wage freeze across the board for top end employees.

Second, we need to change the way we finance our pensions. We get another opportunity here with the problems that PERS is facing and the fact that city's are going to need to cover a higher percentage of the yearly contributions because the fund is running a deficit due to drops in the Stock Market and some bad investments.

The city needs employees, especially those on the top end, particularly those getting 2.5% at 55 and 3% at 50 to contribute to their retirement pensions. If we do that, we do not need a two-tier system that most public employees and their unions deem unfair. And if we do that, the city will face much less risk in the future from the rising costs of these pensions.

Third, and this falls mainly on the fire department, we need to change the way we deliver these services. We are one of the few municipalities that uses four-men teams to fight fires. And we don't often fight fires. The vast majority of the calls are for medical emergencies. Why are we sending in four-men fire fighting teams for medical emergencies? If you ask the fire department, in part, it's because if they get another call, they need all of their equipment and manpower. But the result of this practice is inefficiencies and a waste of money.

I'm not going to try to come up with the answer. That is for the fire department and city staff to do. However, that is a lot of money for not as much service as we are led to believe.

In addition, there has long been a push for a fourth fire station. That is something that we can look into when we fix the staffing situation. I think an innovative approach here can save the city money and also enable the fire department to get the tools they think they need to be effective.

But in order to be effective these other things have to be solved first. We have a window of opportunity. Everyone is going to have to give this year. We have a chance to fix some of these problems because of the unfortunate situation with the economy.

If the city knows that the public will not support a tax measure without fixing our fiscal health, the city will have the leverage it needs to get a more favorable agreement from the various bargaining groups.

Once again, I want to reiterate this. People have used this opportunity to attack all city employees. The majority of city employees are making $60K or less--which is not a whole lot given the cost of living in this city. The problems are really on the top end. In better times, I would be absolutely supportive of the average city employee getting a pay raise. Unfortunately these are not good times. However, these employees are not part of the larger structural problem. They do not deserve to be attacked or disparaged in this process.

The bottom line again is that the city has the opportunity to hold the line and fix some of its longer term fiscal problems as it tries to deal with its shorter term budget deficit. Hopefully they will use this time wisely.

---David M. Greenwald reporting

Monday, February 02, 2009

Former Officer Files Suit Against UC Davis Charging Racial and Sexual Orientation Discrimination

Former UC Davis Police Officer Calvin Chang has filed a lawsuit against the UC Regents and UC Davis Police Chief Annette Spicuzza alleging complaints of racial and sexual orientation discrimination, housing discrimination, and retaliation.

In the lawsuit, Officer Chang, who is openly gay, alleges that he was subject to harassment including homophobic slurs and a death threat while serving as a police officer for the UC Davis Police Department.

Officer Chang was at the time of his hire the only Asian-American officer on the campus and the first openly gay officer. According to the complaint:
“During the relevant times, Plaintiff was subjected to a pattern of harassment and discrimination because of his race and sexual orientation, including but not limited to the following: a racial slur broadcasted to Plaintiff over the police radio by his supervisor, superiors referred to Plaintiff as "Mr. Chang" instead of by his earned title of "Officer Chang," repeatedly referred to by the name of the agency's previous Asian-American officer, denied timely backup, subjected to a derogatory slur ("fag") by a probationary police officer (whom Regents passed on probation) in the presence of his supervisor, offensive homosexual innuendos from a supervisor, referred to as a "****ing fag" by his supervisor (whom Spicuzza promoted and assigned to the "professional standards unit" in command of internal affairs), subjected to numerous false internal affairs investigations.”
In July of 2003, Officer Chang was terminated from the UC Davis Police Department. By September 2003, he filed complaints of discrimination and harassment in connection with his termination.
“After Plaintiff's mistreatment and termination was reported in the news media beginning on or about October 29, 2003, Regents ordered Plaintiff summarily reinstated on October 31, 2003 and agreed with the DFEH [Department of Fair Employment and Housing] to provide all sworn staff with discrimination prevention training. As of Plaintiff's last termination in 2008, despite repeated reassurances, Regents have failed to provide agreed upon training.”
The suit alleges that the
“Defendants initiated, directed, encouraged, and subjecting Plaintiff to a malicious, severe, and unrelenting pattern of retaliation.”
These complaints included an alleged death threat. However according to a press release:
“UC Davis Police Chief Annette Spicuzza concluded she ‘could not identify’ which officer wrote the threat, even though the threat was written in the officer’s own handwriting.”
Moreover, Officer Chang alleges that in response to a complaint about discrimination, Chief Spicuzza stated to Officer Chang, “Why don’t you leave?”

The suit alleges a long list of various incidents of harassment and retaliations including a punitive transfer, failure to properly protect Officer Chang, and soliciting complaints against Officer Chang. Officer Chang claims that the Police Chief initiated several “malicious and false” internal affairs investigations against the Officer.

According to the press release by attorney Anthony Luti representing Officer Calvin Chang:
“These actions culminated in a lawsuit filed [today]… Chang alleges that in 2008, he was unlawfully terminated for the second time, after the UC Davis Police Department fabricated an internal affairs alleging that he “failed to have a backup officer” when he searched a laundry room at the Segundo Residence Hall. Chang’s lawsuit alleges that Spicuzza intentionally misrepresented that the internal affairs investigation had “no finding.” However, UC Davis concealed and intentionally misrepresented that it had sustained the allegation and then falsely and maliciously reported that he had resigned as a result of the internal affairs complaint.”
UC Davis has also attempted retaliation, according to the plaintiff, by
“unlawfully threatening [to] take his home of ten years—located in Aggie Village on the UC Davis campus. As a result of a complaint Chang filed with the CA Department of Fair Employment and Housing, the University agreed that it would cease any further actions, again choosing to explain its actions as based on “miscommunication.”
Furthermore, the plaintiff reports:
“In a letter responding to Chang’s complaint, [UC Davis Chancellor Larry] Vanderhoef described the University’s action as “a result of administrative error” and that there was no “evidence that these actions were intended to be retaliatory.”
Officer Calvin Chang is seeking a reinstatement of his position and general damages for the loss of his career and public safety pension valued at over $3 million. Moreover he is also seeking damages for emotional distress and punitive damages against Chief Spicuzza for failure to prevent harassment, fraud, and conspiracy to commit fraud.

The Vanguard at time of publication has not had an opportunity to speak to UC Davis, however, will follow up if when there is an official response.

In the fall of 2007, the Vanguard received an anonymous mailing through the US Postal service depicting a series of complaints against Chief Spicuzza, Captain Joyce Souza, and now former Captain Leslie Brown. That was followed up in the spring of 2008 with an anonymous email detailing further events and abuses. Both of these communications appear to have merit and the Vanguard has been conducting a long investigation of the UC Davis Police Department and the upper management. As a result, the Vanguard has discovered reason to believe that Officer Chang’s complaint is not an isolated incident but rather part of a long and sustained pattern of alleged discrimination, retaliation, and abuse. The Vanguard will be following up on these allegations and will have a full report in the future.

---David M. Greenwald reporting

Sunday, February 01, 2009

Vanguard Analysis: Enterprise Obscures Where It Should Shine A Light

The vote on Tuesday night on the B Street project was admittedly a bit confusing in its conception. However, the Davis Enterprise article made it more so, not less so.

The title of the article was "Project will get another chance."

In a technical sense, that may be true. Council by a 3-1 vote passed a motion that would allow the applicant Marie Ogrydziak to bring her project back without having to pay additional fees. However, the motion directed her to work with the neighbors (who were overwhelmingly against the current project) and change her plans. Under those conditions, she would have to bring the project back through the HMRC (Historic Resources Management Commission) and Planning Commission. If they approved the design changes, the project would actually never come before council. The only reason the project came before council to begin with was that the Planning Commission by a 5-2 vote rejected the project as not meeting project guidelines.

The Enterprise continues:
"On Tuesday night, the City Council decided that Ogrydziak could resubmit her proposal and the council will consider it again, without Greenwald's participation."
Here again, it is more than a bit misleading. First, technically speaking, the project does not have to go back to council. But let us suppose it does, is Councilmember Greenwald conflicted out?

That is far from clear. She did not participate on Tuesday night. That much we know. But there are two possibilities for her participating. First, council at somepoint is going to revisit the issue of conflict of interest. Staff will look at the current rules. Second, Sue Greenwald could be ruled not to have a conflict by virtue of the fact that her property value would not be impacted by the project.

The applicant tried to argue that everyone in that neighborhood would be impacted one way or another by the project. But realistically speaking, given the distance which is 470 from property line to property line and an excess of 500 from house to house, given the fact that there is no direct sight line, given the fact that they are not on the street, or as Councilmember Greenwald put it, it's a design review rather than a project review, it is difficult to sustain the applicants point.

Nonetheless, none of this has been determined at this point.

The Enterprise's synopsis of the motion comes about halfway through the article:
"The council could have upheld its November decision if it so chose, but instead it said it would consider a resubmittal of the project if Ogrydziak worked with the neighbors and changed her plans."
The council basically did uphold their November decision. However, in the spirit of Former Mayor Maynard Skinner's olive branch, they worked it a bit more positively, rather than outright rejecting the project, they asked that it come back again. But functionally it is really the same effect. Under the November ruling it would be delayed a year and she would have to come back with a new proposal. Under this ruling, she has to come back with a new proposal. It may not exactly take a year, but realistically she is not going to redesign the project and get community buy-in all that much faster than she would have. So the only real victory she wins is a fee waiver.

All of this is of course clear as mud. What is interesting as well is that Councilmember Souza's motion "directs" the applicant to work with the neighborhood for changes within the design. However, as we know from City Attorney Harriet Steiner's legal interpretation, direct doesn't mean required by law.

As Ms. Steiner told Mayor Pro Tem Saylor in response to a question about giving direction, Ms. Steiner informed the council they cannot give "enforceable direction, but you can state your thought on the matter."

On that point the council was clear as was Councilmember Souza:
"I'm going to be straight out, I'm going to vote against the project if it comes back to us exactly as it was. So we're putting her through the process without any change in the outcome. So what I'm saying in my motion is that if you want to see me vote in the affirmative, you have to change the project. The project has to meet the guidelines as I see them in order for me to affirmatively vote for it. I think it is the best thing for this process to go through a process of neighborhood discussion."
He continued:
"I'll vote against bringing it back for a rehearing because I think it's a waste of time. I don't want our time to be wasted and I would prefer we give direction that's positive."
And that is really the final complaint with the Enterprise article, it did not capture adequately the tone of the decision by the council. The suggestion in the headline and parts of the article is that the applicant was successful. I am going to go out on a limb and suggest that the applicant did not leave Council Chambers with the belief that she had prevailed. If she believed she was going to be able to put forward the project as currently designed she was sorely mistaken.

However, that is not the impression that the article gives.

Part of the problem is that the Enterprise only gives the matter 415 words--which is itself a problem. A breakdown of word usage shows us why the tone is misleading however.

The first 121 words deals with background and Councilmember Greenwald's participation which was suggested to be inappropriate but not definitively determined as such during this meeting.

The next 57 words suggests that the council will reconsider it without Greenwald's participation and then that they could have upheld November's decision but chose not to.

It's only the next 105 words with actually deal with what Councilmember Souza, the drafter of the motion, said. This is the only portion that casts a negative light on the decision from the applicant's perspective.

Mayor Pro Tem Saylor's procedural manuevering, which was rejected, gets almost as many words, 100, as Souza's motion which was adopted.

14 words go to:
"Ogrydziak's project is expected to be before the council again after she resubmits plans."
Which is actually not true as we've discussed.

And finally 18 words to:
"The council also agreed to discuss at a future meeting how other cities and organizations handle conflict-of-interest matters. "
Which is actually an important aspect of this in its own right because that's in part how Councilmember Greenwald's participation will be determines, IF the matter even comes back to council.

There are really two problems here. One is that this story is only assigned 415 words. You just cannot do an adequate job with that short a story on this complex an issue. That is certainly not the reporter's fault. One of the big advantages the Vanguard has is that there is no word limitation.

The second problem is that you need to adequately reflect the tone and functional outcome of the decision. In that sense this article fails. First with the headline which is technically accurate but completely misleading in tone. Second, with the construction of the article that buries in the middle and underrepresents the outcome. Basically 105 of the 415 words reflect the tone and tenor of the decision and it is placed in the middle and off the front page of the newspaper. That needs to go up front and needs to also be longer.

The bottom line is that a person reading only that article on this issue would not come away with an accurate sense of what actually happened on Tuesday night.

---David M. Greenwald reporting