Judge Orders Defendants to Cease Delay Tactics in Buzayan Case

It was summer of 2005 when then 16 year-old Halema Buzayan was arrested by Davis Police Officer Pheng Ly. Much has happened since that time both within the city and the police department. But one thing that has not happened is that the Federal Lawsuit filed by Ms. Buzayan's family has not gone to trial. That may finally change shortly as a Federal Judge last week ordered the defense to quit stalling and allow the case to move forward.

Halema Buzayan and her family allege 16 causes of action against the Davis Police Department, individual police officers, the Yolo County District Attorney and several individual's from the DA's Office, and the City of Davis. Specifically the list of defendants include: City of Davis, former Davis Police Chief James Hyde, Assistant Police Chief Steven Pierce, Officer Pheng Ly and Ben Hartz, Former DA David Henderson, Deputy DA Patricia Fong, and Counsel for Yolo County and the City of Davis Douglas Thorn who is himself a defendant in this case.

The defendants have submitted a series of motions to dismiss, but to this point the only original defendant whose case was dismissed was the Davis Enterprise, dismissed in July of 2007.

US District Judge Morrison England describes the current motion to dismiss as being submitted "in an unusual manner."

He writes:

"Although the Court concludes that the majority of the Second Motion to Dismiss is duplicative and unnecessary, and while Plaintiffs have strong arguments that the Motion to Dismiss is untimely in the first place, the Court will nonetheless exercise its discretion to hear Defendants’ pleading challenge one final time because resolution of Defendants most recent contentions may help clarify the remaining issues in the present action."

Judge England proceeds to deny all but a very small portion of the defendant's motion to dismiss.

"Based on the foregoing analysis, Defendants’ Motion to Strike (Docket No. 156) is DENIED. Defendants’ Motion to Dismiss (Docket No. 138) is also DENIED, except that the Court clarifies, with respect to Plaintiffs’ Fourteenth Cause of Action that any reliance on false light invasion of privacy is precluded. Defendants’ Second Motion to Dismiss is accordingly GRANTED in that regard. Pursuant to Rule 12(f)(1), the Court orders the second sentence of paragraph 190, and the first sentence in paragraph 192, in Plaintiffs’ Second Amended Complaint stricken. All other causes of action shall proceed in a manner consistent with this Order."

While the judge struck those two paragraphs, he left the bulk of the fourteenth cause of action in place.

"However, the Fourteenth Cause of Action remains viable to the extent Plaintiffs rely on alleged disclosure and broadcast of private information."

The Fourteenth cause of action is a complaint regarding a violation of the California Constitutional Right to Privacy. The bulk of that complaint claims a deliberate disclosure and broadcast of private information.

"Defendants' conduct has resulted in Halema Buzayan and her family being placed in a false light in the public and within the community. Defendants have violated Plaintiffs' right to privacy as secured under the California Constitution. Plaintiffs assert claims for violation of their right to privacy as secured under the California Constitution against all involved Defendants."

Judge England then concludes his opinion with the following:

"Additionally, while the Court concludes that entertaining Defendants’ Second Motion to Dismiss had some limited utility in narrowing the arguments, many of the other arguments raised were either cumulative, premature, inadequately developed, and/or unsubstantiated. Defendants are directed to refrain from any further efforts to frustrate the timely resolution of this litigation."

In other words, Judge England is telling the defendants to quit trying to stall this case. It is time to move forward.

He roundly criticizes their arguments as being premature, inadequately developed, and/ or unsubstantiated. He questioned the need for this second motion to strike. And although he limited the 14th complaint somewhat, for the most part virtually summarily dismissed it.

At this point in time, it is time to move forward with the case, and let the Buzayan Family after three and a half years finally have their day in court. Then the court can determine if they were wronged and what the damages were.

---David M. Greenwald reporting

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

Commentary: Don't We Need Three in Town?

If you are one of those who is easily offended at any hint of criticism, stop reading right now. There are a few things that need to be said. Tuesday was an historic day. For those who missed the Vanguard radio show last night, listen to it when the podcast is available. I spoke with Tansey Thomas, who everyone knows and with Wayne Lindsey, who no one has heard of. Wayne is a 21 year old UC Davis student. And yes he's African American. It was neat listening to someone born during the depression and someone born when I was in high school talking about what the election of Barack Obama means to them and for African-Americans.

But now it is time to get back to work, back to the real world. For my other job, I had the priviledge of sitting in a teleconference with Speaker of the California Assembly Karen Bass and Senate Leader Darrell Steinberg. They were flying back from the Inauguration. One of the reporters who wasn't me asked them if they thought the California voters were better served by them going to the Inauguration or given the budget crisis being back in Sacramento and trying to get a budget agreement.

It was a tough but fair question. They gave in my opinion a strong answer. The President is formulating his stimulus plan in the coming days. The California legislative leaders came to Washington basically to see that the President and his team put money into the stimulus plan to help the states. No one has money of course, but at least the feds have the ability to deficit spend.

I relay that story because of what I read later yesterday evening about our leaders from Davis who also went to the Inauguration. I do not want to begrudge them a trip to Washington to watch history. I watched on my couch on Tuesday morning with Cecilia, and we were both glad to be on our warm couch watching it on TV rather than standing in the cold without easy access to bathrooms watching it on a giant monitor. Anyone who knows me, knows crowds are not my thing.

But a few things struck me about the article in the Enterprise. First, unlike the state leaders, there was no official business involved in this trip for our three city leaders.

One line from the article in particular seemed to stick in my craw:

"Saylor chatted after the ceremony from bleachers across from the White House. He was playing a quiz game, and had just correctly named the eight U.S. states that begin with the letter M."

I guess I am glad he can name all eight states that begin with the letter M. I am pretty sure I could have done that in first grade, not that that means anything. I am not sure I would really be sharing that with anyone.

A couple of things that come to mind on all of this. Councilmember Lamar Heystek, if he had said that, would have been lampooned in the local press to no end. He was lampooned for being Max Headroom by Hudson Sangree of the Sacramento Bee after representing the city of Davis in Arkansas and still having the diligence to serve our community and attend the council meeting in a virtual way that was unfortunately a bit technologically challenged.

This was not meant as a shot at Councilmember Saylor. He didn't choose for the paper to actually print that, but I would hope he would be embarrassed that they did. He was probably just making small talk with the reporter. What disturbs me and apparently others a bit more is that the newspaper gave more coverage to this story than they did Davis' City MLK event the day before. 399 words for this story to the 107 word caption under the MLK day festivities.

More seriously, with three councilmembers out of town simultaneously, obviously the city manager runs the city on a day-to-day basis, but what if there were an emergency? Apparently I was told in an emergency we do not need a quorum. So let's say in the unlikely event of a riot, we could have Lamar Heystek and Sue Greenwald decide by themselves that we need a curfew. I can only imagine what else they can do.

You know for years traveling on the plane, passengers were greeted with the instructions, "in the unlikely event of a water landing you can use your seat cushion as a floatation device." I'm sure there are 155 passengers last week glad that that message was drilled into their heads. Fortunately they didn't have to jump into the very cold Hudson River.

Shouldn't we have some kind of rule in this town that precludes three councilmembers from leaving town at the same time? Should we not require there always to be three councilmembers in town so we never have a situation where two councilmembers are calling the shot in case of an emergency? It was just last year in January that we had massive power outages and a city that was not ready to respond.

While I am at it, also wanted to comment on a blurb from Bob Dunning in his column last night.

"FIREFIGHTER ABUSE - my friend Larry writes to say he read in this very newspaper that 'the firefighters had to sit and wait until midnight to hear the summary of the Grand Jury report because it was preceded by 70 speeches concerning a council resolution to end the violence in Gaza.'

That's what happened, Larry - 'Hey, if the Davis City Council is going to take over running America's foreign policy, couldn't it at least adopt Obama's new policy of 'no torture.' ' - well said, my friend -"

First of all, in retrospect, I think the city should have pushed back the discussion on the Grand Jury report given the late hour as they did with the two workshops including the budget workshop that ought to be a huge priority at this point in time.

But second, no one forced the firefighters to sit and wait until midnight. They were not required to be there. In fact only two of them spoke--the fire chief and the union President. They were there for effect and to remind certain councilmembers that they had worked to get them elected and suggest in a not so subtle way not to let them down.

There is more. This notion that the Davis City Council is running foreign policy is preposterous and irresponsible. They are doing no such thing. As Souza pointed out last week, the Davis City Council is the closest body to the citizens of Davis. They are our closest representatives in Government. They are not running foreign policy, they are acting as the voice of the citizens, representing our values to other bodies in government that do not meet in our town.

What we saw the other night is that this is a community that is divided on a key issue in our time. This is a value to the community and now the Human Relations Commission tonight will take up this item and see about creating the type of community forum that can help bring our community together and bridge the gap.

I literally spoke with hundreds of people on Tuesday throughout town at various parties and this was the most common topic of conversation. It is an issue that needed to be addressed. I agree with council's ultimate decision. The council cannot speak for a divided community and should not. And thus discovering the divisions as they did on Tuesday night, they pulled back and realized that a letter was not the appropriate solution at this time and on this issue. But that does not mean this is a topic they should not have discussed even if it meant the delay of vital city business until after three councilmembers came back from having their fun and frivolity in Washington, DC.

If that display of democracy meant this blogger had to be up until 2 am and get only three hours sleep, that's part of the duty. If the firefighters wanted to impact public policy and had to stay there until the wee hours of the morning, well poor them? Give me a break. These guys are getting paid big time by this city, they can wait for their meeting like the rest of us if they choose, keyword is CHOOSE, to attend.

---David M. Greenwald reporting

Guest Commentary: Response to Davis Enterprise on Senior Housing

Special to The People’s Vanguard of Davis

By Elaine Roberts Musser

____________

It was with some disquiet that I read Claire St. John’s Jan. 2, 2009 article in the Davis Enterprise, entitled “Senior Living”. I immediately fired off a clarification of my position to the Enterprise that same day. I wanted to make clear the reader understood 1) I was speaking as an individual and not in my capacity as the Chair of the Davis Senior Citizens Commission; 2) the issue of how much senior housing is considered necessary in the future was left completely out of the article.

Because I have no 350 word limit as is required in the Enterprise, it would be my privilege to take this opportunity to more fully express my individual opinion. I was asked by Claire St. John what I thought were the most pressing senior needs in Davis. The list I gave included four items: 1) senior housing; 2) transportation; 3) elder abuse prevention; 4) greater fiscal responsibility with respect to city finances.

A lengthy discussion ensued about each item on the list, and what was being done on a city and county level to address these four issues - since I wear both a city and county hat. (I am Chair of the Triad Task Force, the action arm of the Yolo County Commission on Aging & Adult Services.) I mentioned transit mobility training and roving legal clinics at the county level, and talked of my concerns about the city budgeting process. I offered to Claire contact information for various people, to facilitate follow-up discussions - in an effort to assist the research process about her proposed article on senior needs.

However, Ms. St. John’s article only dealt with senior housing, and in my opinion left out the critical element the two of us had thoroughly discussed. How much senior housing is necessary? I doubt anyone would disagree that between now and the year 2013 that some more senior housing options would be nice, as was suggested in the article. Especially to give some desired competition to already existing and very expensive assisted living or continuum of care facilities in Davis. But what specific number of senior housing units would be essential is the million dollar question, the big fat elephant in the room!

In the article, only one number was discussed. The plan under contemplation at the old Covell Village site would have about 800 units of senior housing over ten years. This is an all or nothing approach. Are we only left with two possible options: 800 units or zero growth? In fact a city staff report put the internal need for more senior housing at an estimated maximum of 150 units between now and the year 2013, which from my perspective seems considerably more realistic than 800.

Claire St. John’s article relies heavily on the notion of “downsizing”, i.e. moving to a smaller home to cut down on maintenance needs. Ironically, statistics show that people prefer to remain in their home until the day they die. Often there is an emotional attachment to one’s residence. It is where children are raised and grow up. I doubt very many seniors would want to sell their home for the good of the community just to free up housing for younger families, as was put forward in the article as a reason for development of more senior housing. Nor do many seniors want to live in an age-restricted complex, preferring to live among younger folks.

Some months ago, I strongly advocated for the Davis Senior Citizens Commission to create a set of housing guidelines. The idea was to give developers and the City Council some guidance as to what seniors were interested in, and delineate their concerns. I felt it was time to reverse the trend of new housing in Davis being developer-driven. Such principles that involve sensible planning might also cut down on the divisiveness that seems to come with every discussion in Davis about growth. These guidelines are very close to being finished, but still require a bit of tweaking.

The gist of the guidelines, without getting into specifics, is as follows: 1) provide housing options for seniors of all income levels, with an eye toward meeting “internal” rather than “external” demand; 2) taking into account the fiscal impact of an increase in cost of city services that will entail. Too often residential growth has been initiated under the policy “ build it and they shall come”. Ultimately the developers reap a handsome profit. However, the inherent costs of such a careless strategy have not been fully borne by developers, but rather city taxpayers are forced to make up the difference, which has been substantial.

We are now facing a city budget crisis of epic proportions. Much of that cost is for road repair, and city employee benefits. Costs intrinsic to residential development. To put it bluntly, a massive influx of seniors would further strain the county social welfare system, city fire and ambulance services, city and county medical facilities, etc., above and beyond normal city and county services. Shouldn’t we be trying to further commercial development first, to bring in more tax revenue to pay for existing city services, let alone pay for any new ones created by more development?

Another issue raised in the article is of deep personal concern. “Part of their concept is a community…managed by residents. Maintenance would be paid for out of a homeowners association fund.” As a Board member of the Center for CA Homeowners Association Law (CCHAL), I can tell you from personal experience as an attorney, homeowners associations are rife with opportunities for elder abuse. A homeowners association is not the panacea many assume it is. In fact homeowners associations, and the management companies and debt collection agencies they hire, can perpetrate some of the worst cases of abuse on record. It can include taking away a person’s home and selling it for as little as $1.20; and can result in the death of the homeowner from the stress of any foreclosure proceedings.

I would strongly advise the City Council to tread very carefully, when planning future housing in general, and senior housing in particular. My hope is our commission’s guidelines will serve as a set of talking points, to begin appropriate discussion on projected residential development of senior housing. If the City Council finds these guidelines useful, I would encourage the planning commission to come up with a similar set of guidelines for overall residential development. It serves for better long range planning, should cut down on incivility in community discussion, and will better provide for actual community needs.

Elaine Roberts Musser is an attorney who concentrates her efforts on elder law and aging issues, especially in regard to consumer affairs. If you have a comment or particular question or topic you would like to see addressed, please make your observations at the end of this article in the comment section.

Wood Burning Ban Discussion Turns Up the Heat

The headline reads:

"Smoke Police Begin Crackdown on Newly Illegal Chimney Fires"

The article goes on to say:

Burn a log, go to jail.

Not quite. But at noon Wednesday, it became illegal for residents of the nine Bay Area counties to start a fire in their fireplaces, wood stove or in pits outside their homes.

And those who flout the new law, which is in effect on pollution-heavy Spare the Air days, could be slapped with fines of thousands of dollars. The current ban will last at least until noon today, but about 20 Spare the Air days could be declared during the winter season, which runs from Nov. 1 through Feb. 28.

Teams of inspectors from the Bay Area Air Quality Management District will be patrolling neighborhoods, on the lookout for chimney smoke and, perhaps, listening for the sounds of chestnuts roasting on an open fire.

"We take this very seriously,'' said district spokeswoman Kristine Roselius.

She said one in seven people in the Bay Area has respiratory problems that can be worsened by soot. "During smoky nights, it's difficult for them to breathe,'' she said.

The article obviously was not written in the Davis Enterprise but rather than the San Jose Mercury News on November 19, 2008.

The article continues:

"The Bay Area has 1.4 million fireplaces and wood stoves, so district officials are hoping most people will voluntarily comply with the new law, adopted by the district's board of directors in July. But residents who decide not to obey might soon regret it.

"We won't have inspectors knocking on doors,'' Roselius said. But first-time violators will be sent a warning in the mail and told they can expect steep fines if they continue to ignore the law.

Roselius said the district hasn't yet set up a penalty schedule for subsequent violations, but "the fines will range from several hundred dollars to several thousand dollars."

The Mercury News then asks a poll of its readers with a comments section as to whether they would report a neighbor violating a fireplace wood-burning ban. 77% or 464 of 602 votes said no. The responses get heated. People turned to insults. The comments could have been written on the Vanguard.

If you look at the letters to the editor section of the Enterprise, Bob Dunning, etc., people are acting like this is yet another Davis artifice. It is not. It is happening across the state and the agenda is being driven by the Air Quality Management District. In fact, it is not just a California thing, a number of citizens in other states are starting to push for various forms of limits, regulations, or even bans on wood burning. This is not just about Davis.

But Davis of course has to hang their hat on something. Davis' wood burning ban would of course be the strictest in the Sacramento and San Joaquin Valley.

The key difference is that Davis' regulations would use wind speed as a factor. Moreover, the NRC's proposal would prohibit the use of wood burning fireplaces and stoves somewhere around 60 days per season. Sacramento County's proposal would ban wood burning for 11 days. The City Staff's recommendation would be in that range.

Finally, Davis' NRC proposal would ban open hearth fire places completely and phase-in the EPA modified phase II.

Bob Dunning this morning argues that it's not clear the science is there to support this.

But even the commissioners had to admit they were shocked by one glaringly contradictory factoid that emerged from their studies.

'One surprising aspect of this modeling work,' they write, 'was that the predicted maximum concentrations of PM were less with an open hearth fireplace at a 2.5 mph wind speed' than with an EPA Phase II-Approved wood stove at the same wind speed.

In other words, at a lower wind speed - one that is quite common in our town - an open-hearth fireplace is actually better for the air than one of those fancy and very expensive EPA-certified stoves.

But, rather than embrace this finding, the commission decided to ignore it completely in its headlong rush to immediately ban all open-hearth fireplaces at all times, no matter what the atmospheric conditions.

When you've made up your mind, best not to let a pesky fact or two get in your way.

Mr. Dunning of course omits the explanation for the inconsistency and reasons why a two-tiered approach would be problematic. Here is the full explanation from the study:

This apparent inconsistency is due to the uplifting dispersion effects of the high exhaust velocity of the Open Hearth fireplace relative to the lower wind speeds seen in this particular combination of meteorological conditions. As the exhaust velocity to wind speed ratio drops by either using an EPA Phase II approved wood stove with reduced exhaust velocity or with increasing wind speeds, the resulting wood-smoke plume is forced downward so much higher PM2.5 concentrations are predicted with Open Hearth Fireplaces at either higher wind speeds or stagnant air conditions. Thus, it is not practical to suggest a small wind speed “window” to allow burning with open hearth fireplaces because that window is very small from a meteorological point of view - i.e. variable wind speeds would into and out of the “safe” wind speed window very quickly. This prevents effective practical enforcement of prohibited burning. Further, the degree of neighborhood pollution that otherwise results from burning in an open hearth fireplace when outside the “safe” wind speed “window” is so great that much would be risked to gain little if this wind speed window exemption was implemented for open hearth fireplaces. Thus, we strongly recommend against implementing a two-tiered approach to determination of “Allowable Burn Days” allowing for use of open hearth fire places during this very narrow wind speed “window”

Finally, it is important to note that this predicted net daily PM2.5 exposure calculations assumes only one upwind fireplace and ambient background PM of only 12 ug/m3. If the background PM concentration is higher than 12 ug/m3 as often occurs, then this degree of exposure relative to the recommended exposure threshold increases. If one or more additional fireplaces are also being used in close upwind proximity, this will also contribute additional PM to the plume and the degree of exposure to the exposed individual also increases.

Here is their key recommendation:

"For this reason, there will undoubtedly still be some exposure of some people to PM2.5 concentrations of such a duration that their exposure will exceed even the Federal 24-hour PM2.5 standard. The extent of this exposure is subject to disagreement amongst knowledgeable practitioners, however. Thus, we strongly recommend that the UC Air Quality Research Center be contacted and further study be implemented and completed prior to a complete ban on all wood-burning."

Sounds reasonable. It is clear at this point that we do not have all of this science down. Just as we did not have all the science down a generation ago on the effects of second-hand smoke.

The more I read, the more I agree with a measured approach. I was concerned that this was pushed a bit too far initially. I think the NRC recommendations are where we ultimately need to go, I am not completely sure we are there yet. If we settle for the staff recommendation, I would like to see the council build in a time-table to get to a lot of the elements that the NRC has put forward.

There are a lot of questions that still need to be resolved on this issue. One question that is striking to me is that the language in the ordinance at least from the NRC (Natural Resources Commission) is that the police would police this ordinance. My question is why is the Air Quality Management District not doing the same thing in Davis that they are in the Bay Area? The enforcement mechanism is problematic at this time. I would like to see the city explore other possible models of enforcement other than relying on police resources.

I would also like to see a much more concerted educational campaign on the part of the city to show the public how this can be a very real and very serious health hazard, and not just to people with asthma and respiratory diseases, although that is probably sufficient to do the preliminary restrictions.

---David M. Greenwald reporting

Davis Enterprise Joins in Call For Open Contract Talks

In a surprising twist, the Davis Enterprise Editorial on Sunday Morning, "Contract Talks Should Be Open" called for transparency in the city's budget and contract process to city employees in order to "prove to us that the salaries and benefits we promise city employees won't drive Davis into insolvency."

The editorial states:

"FOR TOO LONG and to ill effect, the Davis City Council has gone behind closed doors to bargain with the city's employees. The agreements produced in these sessions have not served the fiscal health of the city. Our council must end this practice and negotiate on behalf of the public in front of the public.

The people who are paying the bills have a right to not only know how much a labor contract will cost them, but the people should be permitted to express their views on each deal before it is a fait accompli.

Most of the budget of the city of Davis goes to its workers. By concealing themselves in locked rooms with labor negotiators, the members of the council don't get the input from citizens they need to make fully informed decisions on the most financially important decisions of the city.

To date, this lack of input and oversight has been costly."

The Enterprise then questions the practice of using recent labor agreements from other nearby communities as benchmarks to help determine Davis' wages and benefits in an effort to remain competitive.

As the Enterprise writes:

"Unfortunately, some of our neighbors have been overly generous and, like lemmings, we have followed them over the cliff's edge."

From the city's perspective, here is Finance Director Paul Navazio's staff report from October 14, 2008 that he offered at the budget workshop.

"First, the City Council has expressed a desire for a more transparent process leading up to formal negotiations with each of the City’s employee bargaining groups. To that end, the presentation will review organizational goals related to employee compensation, summarize the various elements that comprise the city’s compensation package, and discuss the role of comparative market studies in establishing appropriate levels of compensation.

In addition, the City - as well as most other public agencies - has come under heightened scrutiny over the level of compensation paid to employees. Over the past year, selected elements of City personnel costs have been the subject of numerous news articles and editorials. Moreover, the City continues to receive an increased number of formal public records act requests from various entities, ranging from main-stream news organizations, governmental watch-dog organizations, as well as private citizens. As a result, staff believes that much of the information being presented to the general public fails to provide a complete (and sometimes accurate) picture of the City’s compensation structure, and is rarely provided within the context in which the City tackles important policy questions related to employee salaries and benefits.

It is important that the City provide a competitive compensation package in order to recruit and retain qualified city employees, while managing overall personnel costs. At the same time, it is equally important that the public have a clear understanding of the City’s overall compensation structure, and the process by which the City determines appropriate compensation levels."

As the Enterprise makes clear, one of the key failing of this policy, is that if one city goes over a cliff fiscally, it takes all city's over the cliff with them. On the news just last night was the prospect of four major area cities including Sacramento facing possible severe fiscal crisis and possibly bankruptcy.

As they write:

"THAT IS HOW DAVIS ended up with unfunded retiree medical benefits, extremely early retirements and spectacularly expensive pension plans. The other cities gave them to their workers, so we did, too. No one on the outside was paying attention, because no one in the public was allowed to participate in the process.

A cop or firefighter who retires from the city at age 50 takes home up to 90 percent of his final salary plus cost-of-living increases for the rest of his life. If he's married and has a child age 22 or younger, the taxpayers of Davis continue to pay his full medical and dental insurance, now $15,860 a year. Even without the current economic downturn, there is no way the city can afford these lavish promises. "

While we appreciate that the Enterprise has come around on this issue calling for full transparency and a public process, we would be remiss if we did not point out that the Enterprise endorsed those candidates last election who promised to continue more of the same. They endorsed the three candidates also supported by the Davis Firefighter Association who have pledged to continue this unsustainable fiscal practice. And they opposed the member of the council, namely Sue Greenwald, who has been fighting for changes to this policy for five years.

The key question is how we get out of this mess.

The Vanguard joins our Davis Enterprise counterparts in the call for transparency:

"The council needs to invite the public into the process and prove to us in the full glare of the sunlight that the salaries and benefits we promise city employees won't drive Davis into insolvency."

But transparency alone is not enough.

The Vanguard offers three additional suggestions.

First, a freeze on pay increases other than normal step and column increases that have been negotiated into the collective bargaining agreement.

Second, the City Council and Finance Director Paul Navazio need to get innovative. We cannot realistically cut salaries, but what we can do is look for creative ways to scale back and rollback other benefits, particularly retirement benefits to those employees who are due to get 3% at 50 or 2.5% at 55.

Third, the Davis Enterprise is right, we need to stop basing our labor negotiations on the standard practice of surveying "recent labor agreements in nearby communities to determine what wages and benefits." That practice simply drives all cities into fiscal crisis. This is the heart of the problem from the Vanguard's perspective. On a regional basis, all cities are hurting. The city is engaging in a hiring freeze right now as it is, so recruitment is not the most pressing issue, fiscal responsibility is.

Even if we were hiring, would fiscal conservatism harm us in recruitment efforts? We know for example when a fire fighter position opens up, there are hundreds of qualified applicants, that clearly suggests we can slow down the rate of growth in salaries and still get good prospects. Police are more problematic, although there is a suggestion that this is a professional issue as opposed to a local issue. Regardless, one suggestion would be to examine our ability to hire field by field and make determinations of salaries and compensation on a field-by-field basis.

The one good thing is that not only are we not alone, but we are probably better off than some other localities. We will talk more about this later however because things are catching up with the latest fiscal reports suggesting an increasing deficit in Davis as well.

---David M. Greenwald reporting

Mayor Flips on Measure N--Comes Out Against

In what may end up being the deathblow for the already beleaguered proposal to create a Charter City in Davis, Mayor Ruth Asmundson who was part of the 4-1 vote to place Measure N on the ballot and one of three Councilmembers to sign the statement in favor of Measure N on the sample ballot, has written a brief but pointed letter coming out against the initiative.

She simply writes without explanation:

"On further consideration, I now believe that Measure N is not in the best interest of Davis voters. Please vote no."

This is the coup de grace for a perilous strategy employed by chief Sponsors Stephen Souza and Lamar Heystek, who made what looked even last week to be a fateful decision to separate the issue of the charter from the issue of choice voting in order to gain Mayor Ruth Asmundson's support in both the 4-1 vote to place the measure on the ballot and her signature on the statement supporting Measure N.

That decision seems questionable when much of the energy behind choice voting from two years ago seemed dissipated by placing a cosmetic and technical measure on the ballot that no one quite seems to understand the implications of nor do they seem enthusiastic about some abstract notion that this measure needs to get approved in order for choice voting to be enacted.

As I felt a few weeks ago, this measure would be much stronger if it had remained attached to the choice voting initiative. However, in order to gain the Mayor's vote they chose to separate the charter from choice voting. This was a mistake two weeks ago. It is a disaster for the measure now.

There has been no stronger proponent of local control than Nancy Price. She is a strong proponent of a charter city, just not this one. Hence she has co-authored editorials against the measure on the Vanguard and also in the California Aggie.

This week in a letter to the Davis Enterprise, she laid out her objections.

"My objection to Measure N is that there has been virtually no communitywide presentation and discussion of what is allowed under a general law city or a charter city. Yet, we are asked to vote on a fundamental change in governance that will have far-reaching consequences."

She continues:

"The point is that now in many communities across the country, people are amending their charters, taking into account fundamental principles of good govern- ance and community.

Those who favor Measure N say they 'anticipate that the charter will evolve to continue reflecting the community's specific interests.' This puts the cart before the horse. I urge a no vote on Measure N to allow a thorough examination of the differences between the two types of city governance that is communicated to the entire community. And, if a charter is thought beneficial, then to create an inclusive, democratic, communitywide process to write a charter that reflects principles of good government we all would endorse. We should expect nothing less in Davis."

There has been an interesting range of people who have come out against this measure ranging from people like Don Saylor to Don Shor to Nancy Price and Pam Nieberg.

Let's face it, when was the last time, the Davis Enterprise, California Aggie, the Vanguard, Bob Dunning, and Don Saylor have agreed on anything? (If you answered Measure W, you get bonus points). In this case, they have all come out against Measure N.

Mayor Asmundson's letter that reverses her previous decision just adds to the growing chorus.

But I think it is more than just that. Her switch symbolizes the problem with the initial strategy of the proponents of the charter. They limited the charter to get broader support and what it actually did was eliminate the support of people who would have supported a choice voting initiative.

It is possible that the measure could still pass, but that seems highly unlikely at this point.

As I said on Monday, In theory, I would be supportive of a city charter that is properly written and narrow, but I think this charter is too broad. It would allow too much power to future city councils. I would like to see this charter get voted down and a committee formed to draft a new one that is much more specific.

---David M. Greenwald reporting

Enterprise Opposes Measure N Due to Lack of Information

I was originally going to write about the Enterprise Endorsement and then cover the Op-Ed by Councilmembers Stephen Souza and Lamar Heystek and a letter to the editor by former Councilmember Jerry Adler all in Support of Measure N. However, I will hold off on the latter until later in the week as it deserves its own story.

This morning's Davis Enterprise has come out against Measure N. And for a very simple reason:

"Davis doesn't have enough information to decide in favor of Measure N."

Furthermore, they suggest:

"Could there be any worse time for Measure N than the Nov. 4 ballot?

Our attention is being pulled in myriad - and important - different ways, by a riveting presidential campaign, a plethora of statewide ballot measures, a handful of key local races and a critical school parcel tax."

This has been one of my concerns about both Measure N and Measure W. The voters have been swamped on the ballot. The main focus of most voters has been the Presidential Election. However, at least with Measure W, the public has seen a slew of articles and op-eds over the last few months. Moreover, last spring, everyone was aware of the condition of our schools.

While I agree with both points, and I certainly agree that the public has had its attention pulled in a number of different and important directions. And yet, if the Davis Enterprise wants to argue that the public does not have enough information about Measure N, are they not themselves partly to blame here?

How many articles has the Davis Enterprise run on Measure N? One on the measure itself on October 14--that was this week if you are keeping score at home.

Prior to that there was a single letter on October 8 to the Editor on Measure entitled: "We need more info; vote no on N." Peggy Epstein writes:

"The Davis voting public ought to be better informed about the wide implications of becoming a charter city before we vote to become one. In the meantime, I recommend a no vote on Measure N."

Prior to the October 14, 2008 article in the Enterprise, the last article on the charter was July 16, when the councilmembers voted to put it on the ballot. There was also an article on June 25, 2008.

So in the last almost six months, the Davis Enterprise has had exactly three articles on the issue. So maybe if the public is uninformed about the charter, they ought to put at least some of the blame on their themselves for failing to inform the public.

Why did the Enterprise spend so little time on this issue? Back in July, I was concerned with some of the possible consequences of the charter city proposal and implored a reporter for the Enterprise to cover it a bit more. The thought back then was that there was a lack of interest in the issue itself.

However, our story on the ballot language in mid-August drew 45 comments and some heated debates. Even more so in late August with Councilmember Lamar Heystek's op-ed. Still the Enterprise did not cover the issue despite clear interest at least by those who read this blog.

All of this said, one cannot put all of the criticism for the lack of information on the Davis Enterprise, though clearly there was not nearly enough coverage on an issue that has the potential to fundamentally change this city.

I also put the onus on the sponsors.

I mentioned this issue earlier this week, and I repeat it now. The decision to divorce the charter city proposal from the choice voting proposal was an error in my view. Why? In 2006, there was Measure L, an advisory vote about choice voting on the ballot. It drew a groundswell of support and had a large grassroots organization behind it.

Now as one of the sponsors of Measure N recently told me, many of those people were UC Davis students who have since moved on. And I appreciate that. Nevertheless the energy came from that issue and when the charter city issue was separated it seemed to sap the young energy for this change. Subsequently, I do not see the movement afoot.

This decision was made in part to gain the support of Mayor Ruth Asmundson who was willing to support a charter on the ballot but not choice voting. That gained council a 4-1 vote, but one has to wonder at least whether the measure would be stronger and have more energy with choice voting attached to it.

Second problem, this measure seems like a rushed job to get it on the ballot. Now let me explain because as the sponsors will rightly counter this measure is two years in the making. However, I would have liked to have seen a bunch of higher profile outreach meetings back in the spring with the likely ballot initiative that could have been explained fully to the public. There did not seem to be enough community discussion on this measure.

Furthermore, where is the Measure N campaign itself. I have received to this point in time no literature on Measure N. No phone calls. No door-to-door people. I even have the luxury of having both a permanent absentee voter and a vote on election day voter in my household so we get the early literature and the late literature. Nothing.

The bottom line here is that the public is not informed on this issue, the Davis Enterprise is correct about that and they are correct that that is a reason why this measure should not pass. Not the only reason as we have discussed earlier this week. However, if that is the indictment, I would like to see the Davis Enterprise take responsibility for failing to do their part to educate the public on this issue. One article since July 16 (over three months ago) is not acceptable.

And yes they have a lot to cover, but they never seem to have a problem printing their fluff pieces, err human interest stories.

---David M. Greenwald reporting

Davis Enterprise Anti-Environmental Policies

I write this in part based on Matt Rexroad's blog entry from yesterday, but frankly I have had similar thoughts lately. There was a time, I would wake up and read newspapers first thing in the morning. But that was really before the advent of the internet and the ability of newspapers to put their content online--much of the time for free. Now if the newspaper is not on the internet, I will not likely read it.

Most newspapers have most of their content available for free on the internet. However, the Davis Enterprise is an exception, though their policy has varied over the two and a half years I have read it. At one point, only the front page articles were available on their website. Then all of their content was posted on the website. Now they have all of the content on the website but it is protected by password and available to those who subscribe.

So I have subscribed to the Davis Enterprise because given what I do on a daily basis, I need to know what is going on in the community--or at least what the local papers--Davis Enterprise, Sacramento Bee, and Woodland Daily Democrat are covering. However, what happens in my household is that I usually read the content online before the paper is delivered and we have a neat stack (sometimes less than neat) of unopened Davis Enterprises that end up going directly into the recycle bin.

Apparently I am not the only one with that problem. Supervisor Matt Rexroad had a similar problem and actually called the paper to see about changing things.

"So I was looking around my house the other day for ways to simplify things.

One thing I noticed is that I subscribe to the Davis Enterprise at home. However, I read it on-line most of the time so I never actually open it when it arrives at my door.

That was an idea. I will tell the Enterprise that they did not need to waste the paper or the effort to get me the paper. Then I would not have to recycle it. They would save time and effort. Life would be great."

Sounded like a good plan to me. In fact, I have been thinking about doing the same thing. Unfortunately that is not how the Davis Enterprise works.

[Mrs. Rexroad] called to tell them to stop delivering even though we would still pay the bill -- I want the on-line access to the news. They told us they could not do that because of the advertising rates were dependent upon it.

Are you kidding me? Somehow the rest of the newspapers in the world are able to manage. But there are multiple points of illogic going on here.

First, they are not actually opening the paper, so in a way, the Davis Enterprise's advertising are not reaping the benefit of the subscription anyway. In fact, by keeping a newspaper delivery where the subscribers do not open the paper, the advertisers are getting a false impression of the coverage of the paper. I wonder how many other people end up doing similar things.

Second, this is Davis. We are supposed to be the environmental model for the rest region if not the state. Yet our newspaper is engaging in unnecessarily wasteful practices by requiring people to use paper when they would prefer to still pay for the service but still have to waste paper.

I use very little paper--or at least as little as I can afford. I get most of my bills online. I read articles and the like directly on the computer screen and I rarely print things out. So it bothers me that I am wasting paper because of a newspaper's policies.

Frankly if I did not blog everyday on Davis and Yolo County events, I probably would not take the Davis Enterprise anyway, but given that I do, I do not feel I have a luxury that many have taken of canceling their subscription.

Papers everywhere are facing difficult times and part of it is because they have not adapted to the new medium. The Davis Enterprise has created blogs on their site that are largely unused and rarely usable. They could do so much more with even their modest resources to create a much better and more innovative product on their website. Some have complained about the McNaughtons in this capacity and suggested that there is a lot they would like to do if they were not being held back.

This is just a single example of where they can improve. I hope that environmentally conscious-Davisites will be concerned about this very simple and very wasteful policy by their local newspaper.

---Doug Paul Davis reporting

Enterprise Runs Sheriff Prieto Letter on Prop 6

Just over two weeks ago, we had a story on California's Proposition 6. Part of that story had to do with the fact that a letter to the editor appeared in the Woodland Daily Democrat from Yolo County Sheriff Ed Prieto.

It turned out that that same letter appeared in numerous newspapers across the state, each having the respective County Sheriff as the author.

Sheriff Prieto writes:

"Whether California faces rosy or gloomy times, we must always make public safety the number one priority. If our streets, parks and schools aren't safe from gang violence and other crimes, then nothing else really matters."

He goes on to argue:

"Democratic members of the Budget Conference Committee have approved deep cuts to public safety programs including the Citizens Option for Public Safety, which provides for front-line law enforcement, and the Juvenile Justice Crime Prevention Act while altogether eliminating several vital programs such as California's Methamphetamine Interdiction Program and the Small and Rural County Sheriffs Grant Program. Combined with a proposed corrections package that puts some offenders back out on the streets without supervision, these cuts will significantly exacerbate the ability of law enforcement to provide essential public safety services. These programs are critical in preventing our most at-risk youths from joining gangs, getting involved in drugs, and entering a lifetime of crime."

What else does this law do according to Sheriff Prieto:

"In addition to protecting important gang prevention and intervention funding, this initiative prohibits bail to illegal aliens who are charged with violent or gang crimes; it creates tougher punishment for gang crimes, drive-by shootings, methamphetamine distribution and victim intimidation; it helps victims who have been intimidated by gang criminals and it funds victim-witness protection programs in our communities."

Finally he gives you the link to a place where you can get more information: http://www.safeneighborhoodsact.com/ .

I point this out once again because there in yesterday's Davis Enterprise was the same letter bearing the signature of Yolo County Sheriff Ed Prieto.

Now when Woodland Daily Democrat editor Jim Smith found out about this little scheme, he was not that happy.

The Woodland Journal Blog was the first to point this out.

We followed up with an article that detailed the proposition itself along with the Sheriff's comments on August 14, 2008.

On August 15, Jim Smith put a blurb in his editorial.

Last week, The Democrat published a letter to the editor allegedly written by Yolo County Sheriff Ed Prieto, titled "Our communities suffer the most from public safety cuts."

I write "allegedly" today, because an alert reader noted at the local Woodland Journal blog site that the letter was the same as others sent to newspapers across the state, some of which also published the letter atop the names of county sheriffs.

Some of those sheriffs named were Tom Bosenko of Shasta County, and Dean Wilson of Del Norte County.

First, my congratulations to an alert reader. I urge anyone who spots these letters - which are called "Astroturf" - to let us know.

It turns out the letter was submitted en masse by the "Yes on Prop. 6" Committee to sheriffs throughout the state.

Yolo Sheriff Ed Prieto is listed as a backer of the "Yes on Prop. 6" measure.

I understand very well why some otherwise well-educated people submit letters that have in fact been written by someone else. Sometimes, people have trouble putting their thoughts together to form a cogent explanation about why they feel the way they do on a particular issue. Sometimes, the letter provided is just so much better written. Sometimes, there's too much going on at the time to permit a person time to sit down and put his own thoughts on paper.

In any respect, now that we know Sheriff Prieto is a backer of Prop. 6 and will put his name on something he didn't write, we will be on our guard against future letters from him. It's not that we don't trust our sheriff to submit original commentary, we just don't know when his submissions will be original commentary.

Given the reaction of Jim Smith, it will be interesting to see how Davis Enterprise Editor Debbie Davis reacts.

Law enforcement groups have support proposition 6, but there is a long and growing list of opponents as well.

Some of the opposition to Proposition 6 includes the California Democratic Party, the California Professional Firefighters, the California Labor Federation, former Los Angeles Police Chief Bernard Parks, the California Teachers Association, California National Organization for Women, the Los Angeles City Council, the League of Women Voters, California Church IMPACT and the Ella Baker Center for Human Rights. [Click here for a full list of opposition]

The ACLU has come out against the proposition as well. They say:

"This dangerous initiative would deepen the budget crisis by diverting billions of dollars annually from schools, hospitals, and violence prevention programs into the criminal justice system. It is a misguided effort to incarcerate more and more people, including youth."

Meanwhile in a stroke of deep irony, one of the major sponsors and backers of Proposition 6, Henry Nicholas III was indicted on 21 charges in June.

This is from an ACLU release:

"Billionaire Henry Nicholas III, who donated millions to get two crime-related initiatives on the November ballot, was arraigned on June 16, 2008, on an 18-page, 21-count indictment that includes charges of supplying prostitutes to big-ticket customers, drug use and trafficking, conspiracy, security fraud and making death threats. Nicholas donated a combined total of $5.9 million of critical seed money to Senator George Runner (R-Antelope Valley) and Assemblymember Todd Spitzer (R-Orange) for their "tough-on-crime" initiatives.

The media storm has forced both campaigns to distance themselves from Nicholas, who has resigned his active role in both campaigns. While Assemblyman Spitzer has committed not to spend any of the remaining $2 million their campaign has raised from Nicholas, it was the crucial seed money donated by Nicholas that helped to put both initiatives on the ballot."

That is what you might call irony, I hope he gets as tough on himself as he wanted to on other criminals.

Stephen Walker, a CEO of a group called Minorities in Law Enforcement wrote this:

"We understand Senator Runner's goal of trying to address the gang issue. Unfortunately, this measure takes a reactionary approach and does not effectively address the root concerns of the problem. The nature of which the bill was written fails to illustrate how it would actually make our neighborhoods safer. However, it does illustrate how to further overwhelm a prison system that is largely occupied with African American and Latino males by imposing sentence enhancements and targeting these particular demographics. This is especially inconsistent when our state's Governor has recently proposed a 22,000 prisoner early release to ease the states massive overcrowding challenges."

According to the California Federation of Teachers:

"The Runner Initiative directs billions of tax dollars to prisons, probation, and police (one billion dollars in the first year, and half a billion per year thereafter; plus additional unfunded mandates that local and county governments will be forced to pay)..."

Congresswoman Barbara Lee:

"The Runner Initiative's name on the November ballot is as misleading as what it proposes to do for our community. The so-called "Safe Neighborhood Act" will not lead to safer streets, less crime or a reduction in drug dealing in our community. While we all want our communities to be free of crime and safer for our families, the Runner Initiative doesn't address the core problems or create real solutions. In light of the current California budget crisis, we cannot afford to irresponsibly spend even more California tax-dollars on a failed policy of only funding prisons and criminalizing youth; we must make investments that prevent crime, in our communities where the impact is the greatest. We should be set our sights on finding creative ways to stabilize the economy, provide our children with educational centers of excellence and insist on equal access to the jobs marketplace."

Oakland Mayor Ron Dellums:

"Everyone wants safe communities. Bringing peace to urban America is perhaps the most difficult and profound challenge facing the country today. However, in this time of crisis, the Runner Initiative is the worst kind of public policy. It plays on our deepest emotions but sets us up for failure. The Runner Initiative is an unfunded mandate that will gut California's budget. It won't result in safety and security. Instead it will leave us in more debt with less safety and stability than ever before."

As I wrote on August 14, 2008, this law seems to have much in the way of unintended consequences that will end up costing the state far more than the initial money upfront.

It seems like this imposes a lot of new rules on the criminal justice system that need to be clearly thought out in terms of their consequences. Voters will often vote for these measures because they want to be tough on crime. This one has a chance to fail because of the economic issues, but frankly some of the provisions could have startlingly unintended consequences.

It seems that the Sheriff's want the additional resources and I cannot blame them for that. But if it comes at the expense of beleaguered schools, it seems to me that we will just be feeding into the problem of law enforcement in the future by taking money from present education.

So for that reason alone, I am voting against it. And I am alarmed at a number of the provisions in the law. I am saddened to see the Sheriff, one of the very few Democratic Sheriffs in California joining his Republican colleagues and supporting such a measure just to get additional funding.

---Doug Paul Davis reporting

A Burning Issue For Our Community

Programming note: Join the Vanguard tonight on KDRT 101.5 FM from 6 pm to 7 pm, as I host Alan Pryor who is one of the leaders in the fight to ban wood burning. You can call in with questions at 792-1648.

On July 29, 2008, the Davis City Council unanimously voted to recommend to the Natural Resources Commission to draft a resolution that would implement a full ban on wood burning in Davis with an exemption for hardship.

I will say at the onset here, that I am fully in support of that decision, particularly with such an exemption for people of lower income backgrounds who rely on wood burning as a cheaper means by which to heat their homes in the winter.

However, at the time I was concerned about the way in which this issue had been dealt with by the city, the city council, and the local paper--or that is, not dealt. I got up to speak before city council on the night of July 29, 2008, to recommend two things. First, that we need exemptions for people with hardships. And second, that we needed better outreach before this meeting.

On the morning of July 29, I wrote this article in the Vanguard. It essentially lays out my position on the technical aspects of this issue. But I believe that for many in this community, they did not know this issue was even under consideration until that article appeared the Vanguard and subsequently an article in the Davis Enterprise on July 31, 2008.

Following that article, the dam broke loose, and there have been several op-eds in the Enterprise, numerous letters to the editor, and commentary by Bob Dunning.

This is all a healthy part of the democratic process, but this should have happened before the July 29, 2008 meeting. This is an issue that effects so many in our community on both sides of the fence. Large numbers of people have come forward to tell of their health problems that they suffer from wood burning smoke during the winter months. They came before the council on that evening to present their compelling cases, and it is my belief that the council was moved by those testimonies and it enabled them to take tougher action that they were probably prepared to do prior to the meeting.

Unfortunately, there is also a group of people in this community who feel strongly the other way, and their voices were not heard on that night.

In yesterday's Enterprise for example, George Galamba suggests what he terms a more measured approach:

It is too bad that we are unable to see shades of gray in the debate. Yes, burning wood (or gas, oil, coal, etc.) does produce smoke, and smoke is a pollutant. But there is a bit of difference between burning a branch that was blown down a few months ago in an open-hearth fireplace and burning seasoned wood in an EPA-certified stove.

Rather than a draconian ban on burning all wood, why not a measured response to the problem, which is not wood, but rather smoke? I would like to offer a few suggestions:

-- If it is not already the law, ban open-hearth fireplaces in new construction. Why put a fireplace in a house and then tell the new owners that they can't use it?

-- As properties change hands, require that fireplaces be retrofitted with approved appliances or bricked up.

-- Prohibit burning on days when the air is polluted.

-- Issue burning permits that would require attendance at a workshop on how to burn cleanly.

In many ways it was Thomas Cahill editorial on August 5, 2008 that lit the fire.

He writes:

"One of the greatest threats to effective environmental progress is asking the public to bear the cost of environmental actions that later turn out to be unnecessary or unsupported by current science. Such errors erode the political will to do the hard and necessary environmental tasks. Think of the current credibility of the FDA, for example, after it erroneously labeled tomatoes as the salmonella culprit.

Davis is in danger of sliding down this slippery slope in instituting a total ban on wood burning when the science is not supportive of such an action."

He argues that Davis during the winter months has low levels of Wood smoke and even during the severe problems during this summer, there were no notable increases in doctors' visits or hospital admissions.

"There are two problems. One is that the city of Davis' Natural Resources Commission did not have key documents that have actually determined the surprisingly low levels of wood smoke in Davis in winter, a 55-page report submitted to the City Council in March 15, 1995. This work shows that even in the worst stagnation periods, Davis represents a tiny enhancement over the valleywide winter particulate pollution, which is largely caused by diesels and smoking cars.

In addition, for the past month we have been breathing smoke from the much more dangerous wildfires at levels roughly 100 to 200 times what which we saw during our worst stagnation period, the cold, hazy day in Davis on Dec. 23, 1995.

Yet Glennah Trochet, M.D., Sacramento County's health officer, noted no increases in doctors' visits or hospital admissions from the present wood smoke even in the worst period of mid- to late June 2008."

On the other hand, perhaps that should not be the measure of such problems. Many people I know cranked their air conditioning up and simply stayed inside during the horrid smoke and incessant heat of the early portion of this summer.

Alan Pryor, who will be my guest tonight on KDRT, had a response Op-Ed on August 14, 2008.

Mr. Pryor argues that:

"Cahill made three claims that are unfortunately not substantiated by the older data he presented nor accepted by the larger scientific community."

He then refutes Mr. Cahill's objections.

"Firstly, Cahill implies that wood smoke is not as harmful as suspected or represented... In that article, a county health officer said they had not yet observed a local jump in hospital emergency admissions due to respiratory difficulties during the recent weeks of wildfire- induced wood smoke pollution. There was no data to support that observation and that was the only item in that article that could be possibly be construed to minimize the hazards of wood smoke pollution.

In fact, the actual thrust of that article was to warn people how dangerous were the then-current levels of wood smoke pollution levels and. Both Kent Pinkerton, a UC Davis professor and expert on the health effects of air pollutants, and Larry Greene, executive officer of the Sacramento Metropolitan Air Quality Management District, are extensively quoted in the same article, pointing out the severe adverse health effects of wood smoke. "

Next:

"Secondly, Cahill further claims his own research shows wood smoke concentrations are at "surprisingly low levels" in Davis and thus do not constitute a major pollution or health problem. This observation was based solely on a one-time measurement of air quality taken at only two different points in Davis on a single winter day about 13 years ago... The Yolo-Solano AQMD now estimates that, on average, about one-third of current wintertime particulate pollution in Davis is due to residential wood smoke. In Sacramento, the percentage of particulate air pollution due to residential wood - burning in winter is closer to 50 percent. "

Finally:

"Cahill also claims we can solve any "residual" wood smoke problems that might exist simply by heeding the "more stringent" "Spare the Air" restrictions on wood - burning that are periodically issued by the Sacramento Air Quality Management District. Well, that certainly sounds like a reasonable idea.

Unfortunately, the Sacramento AQMD issued only eight mandatory alerts last winter for restricting open-hearth fireplaces and no alerts at all restricting the use of EPA Phase II stoves. That means that during the unrestricted 112 days of the 120-day burn season (from Nov. 1 through Feb. 28), anyone in Davis could still burn an open-hearth fireplace as long as they wanted, at any time and anywhere — even next to a school, hospital, senior center or the home of an asthmatic child or senior. Similarly, an EPA Phase II stove actually could operate without any restriction whatsoever."

The debate is interesting, informative, and necessary. I encourage people to read the full op-eds from August 5 and August 14, in addition to the feature article from Claire St. John that appeared last Thursday in the Davis Enterprise.

However, again, I want to go back a step. This debate should have occurred before the July 29, 2008 City Council meeting. That is not to say the ordinance that will emerge from the NRC will be a done deal any time soon. There will be plenty of time to debate, but it would have been helpful to have a full debate prior to the direction to the NRC.

It is easy for a city like Davis to meet the basic Brown Act requirements for open meetings. Posting notices with able lee-time are sufficient for those requirements. But as I said at the July 29 meeting, the Brown Act should be considered the bare minimum standard for public notification, not the extent to which they go to inform the public on issues that they know will generate public debate. And this was clearly an issue that would. The debate that has emerged in the last month bears out my concerns at that time.

The city, in my estimation, does not make use of its considerable power of the bully-pulpit. It is easy to sit back and rely on reporters to report on the City Council meetings. However, in fairness to the Enterprise, at best one receives the agenda on Thursday late afternoon, that leaves Friday, Sunday, Monday, and Tuesday to report on anything that has to do with the council's agenda. That is not a lot of time to warn the public and to have any sort of public debate. And so, we often see debates develop after the fact.

Fact of the matter is that the city can write its own story and submit it to the newspaper whenever it wants and the the newspaper is pretty accommodating. Heck, they could submit it to the Vanguard and nine times out of ten, I would probably run it as well.

I think it would have been helpful had the George Galamba's and the Thomas Cahill's of Davis had been able to weigh in on the meeting on July 29, perhaps the council would have given the same recommendation, perhaps not. But at least they would have had their say.

I know they will get their say later on in this process, that is the justification that you will hear for the way this has unfolded, but as I have discovered, the further down the field they run with the ball, the harder it is to stop forward progress. Once they get the ball in field goal range, it is all a matter of damage control.

The debate on this issue will fortunately go on, the public will learn much more about this issue before the final vote is taken, it seems likely that the final vote will be considerably weaker than the direction given in late July. However, we should not lose sight of the fact that this is a serious health issue.

In last week's Davis Enterprise article, Jennifer Anderson of Ace Hardware was quote, among other things she suggested that the city of Davis stay out of the issue.

"Anderson said the YSAQMD should be responsible for regulating wood burning.

'It would be my dream to just leave it to the Yolo Solano Air Quality realm and not bring it into local politics, because that's what they're there for,' she said."

As I understand the issue however, the YSAQMD sets emission standards, it does not regulate wood burning or set policy for the city. The local jurisdictions are in charge of setting such policies.

I point this out because these are issues that must be fully vetted in public and explained. What are the emissions requirements that the city has no control over and what policies are needed in order to meet those standards.

The next question is whether those standards are tough enough. Just like the Brown Act, emissions standards can be minimum requirements rather than limitations on regulations. They are often based as much on political expediency as they are on scientific premises. We need to sort through and determine whether we need to simply adhere to these standards or whether we as the city of Davis, need to set our own in order to meet the health needs of the population.

Regardless, these questions still need to be sorted out and the city has a duty to educate the public on this issue. If the city believes that wood burning represents a health threat, then they should use the power of the bully-pulpit to communicate that, rather than sit back and let those who like the comfort of burning dictate the terms of this debate.

---Doug Paul Davis reporting

Mayor's New Policies: Cutting Off Debate

If there is one good thing that has come of the feud at city council the other night, it is that it has allowed even on the pages of the Davis Enterprise there to be debate at least somewhat over process.

On Tuesday night, the Davis Enterprise ran an extended story on the debate.

The question for me is whether it is appropriate to cut off an elected councilmember when they are asking questions. They have set up council rules that allow the presiding officer to do this. This is something we learned when Councilmember Don Saylor read from council rules. The appropriateness of that rule in this case needs to be in questioned.

For her part, the Mayor told the Davis Enterprise:

"It seems like every meeting is so confrontational. Last Tuesday's meeting, what happened was, we were on the question part and (Greenwald) asked several questions and it was already about 12 minutes for that. If I give one (council member) five minutes, I try to allocate five minutes for the other... She was debating, she was badgering, she was, in a way, insulting the consultant."

Was the former Mayor doing that or was she simply asking tough questions on an issue that in her mind is crucial? Is there a more important issue than that of the proposed water project that figures to raise the rates of people's water bill possibly by more than $100 per month (although this figure is certain part of the debate, a debate refueled on Tuesday when Public Works Director Bob Weir's revised cost figures which seem considerable lower than what was forecast just a week ago).

Even if those new revised numbers prove to be true, the process issue still stands.

The Mayor suggests that Councilmember Greenwald had already spoken for 12 minutes. But by my count it was only eight minutes into questioning when the Mayor interjected and attempted to cut off Councilmember Greenwald.

In a moment we shall talk about whether Councilmember Greenwald lost her control during this confrontation as some have accused and also whether her comments and questions were inappropriate.

However, of bigger concern to me are these statements made by the Mayor in the Davis Enterprise article.

Asmundson said, as mayor, she has a meeting to run, and she tries to keep the council on task so residents have an opportunity to speak before 11 p.m. Council members, too, would like to get home at a reasonable time, she said.

"I'm trying to be more effective and efficient in our meeting so we can address our business," Asmundson said.

The mayor plans to ask her colleagues how they would like to see the meetings run.

"I'm hoping we can work a little more collegially on the council," Asmundson said. "They have to decide how they want me to run the meeting, so I'll be putting more on them. If there's a complaint about how I'm running the meeting, I want to ask them what they want me to do. I'm looking at what's best for Davis, not what's best for our council members."

I can actually sympathize with the Mayor on this issue. I think there are times when comments and questions unnecessarily go on too long. The problem here is that you cannot simply develop rules without flexibility, without an understanding of the difference between a big issue like the water issue and a smaller issue that does not have millions of dollars of impacts.

In the article it states that:

"Asmundson, too, expressed concerns about the cost of the projects. The estimated cost for the wastewater plant upgrade - which is required by the state - rose by about $50 million in the past six months."

I give the mayor credit for this concern as well as her concerns about the escalating salaries for public safety employees. Unfortunately, she needs to allow questioning, tough questions by her colleagues and by the public.

And that brings me to the other real concern with Mayor Asmundson's second turn as Mayor--her decision to limit public comment to 15 minutes. The question is does this really buy her anything?

During normal council meetings, you might get one or two commenters during that time period. It is rare that you have more than five people wanting to speak. When you do get more than five, that probably means there is a specific issue of concern. Asking the public to come back after the meeting seems inappropriate.

Several letters to the editor in the Davis Enterprise have appeared on this topic.

On July 22, 2008, the Mayor on the vital issue of housing cut off both council comments, holding each councilmember to seven minutes. And then she limited the public to only 15 minutes. On this occasion members of the public came up and spoke for a minute or two on an issue that will decide the city's future.

As a result of only allowing 15 minutes of comment following the report on the Housing Element Steering Committee, several citizens came to the regular public comment and complained about the general policy to limit public comment.

Jean Jackman:

"I am at, Mayor, your new policy of only having fifteen minutes of public comment before the meeting starts. It's not Democratic. It shuts down opposition. It shuts down good ideas, I get inspired by listening to public comment from people. It shows lack of flexibility and you are doing a great disservice to the citizens who want to participate in government and their sense of empowerment. You wonder why people don't sign up to be on commissions, well when you give them fifteen minutes public comment for all the issues, it really shows that you are not interested in what people have to say. I really urge you to get the citizens involved and not belittle us by allowing only fifteen minutes of public comment."

Others like Eileen Samitz also complained about the early hour of such a hearing.

“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.”

The Mayor's response to those complaints:

“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 was 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.”

Back to the water issue. Councilmember Sue Greenwald following the incident told me that if she did not make an issue of the incident, no one would be talking about the issue or the process. Both of which are vitally important.

Former Councilmember Stan Forbes raised the issue itself in a letter to the Davis Enterprise yesterday:

"How it would be financed is a question about borrowing money. More significant to Davis citizens is how it is going to be repaid or, in other words, what is this going to cost me? I don't suggest I have the precise answer. But I do know that based on mortgage amortization tables, $450 million at 6 percent over 30 years has an annual payment of approximately $32.4 million, or about $500 for every man woman and child now in Davis. Every year. For the next 30 years. Plus the surface water.

Given this cost, I offer my thanks to Council member Sue Greenwald for asking hard questions. We can't avoid upgrading the treatment plant. But it would seem to me that a serious discussion of water conservation measures ought to have as much or more priority for the council as how to finance such a project. Conservation often costs much less than increasing supply."

This gets us back to the original issue of Mayor Asmundson cutting off Councilmember Greenwald's line of questioning.

Were Sue Greenwald's questions out of line? Did Mayor Asmundson inappropriately cut the Councilmember off? Did the Councilmember lose her cool? You decide. Here is a video clip of the incident. It includes the final three minutes of Councilmember Greenwald's eight minutes of questioning. It includes the Mayor cutting her off. It includes the recess. It includes Don Saylor reading from the rules. It does not include Sue Greenwald requesting to resume her questions and Mayor Asmundson ignoring those requests.



You decide for yourself. For me, process is as important if not more important than actual substance. There was a time during the last session when as Mayor, Sue Greenwald cut off Stephen Souza from asking questions. It was inappropriate. I did not agree with what Mr. Souza had to say, but I defend his right to say it. He was an elected official and deserved to ask his questions. I feel the same way about Sue Greenwald. And there are times when she crosses the line.

More and more I do not feel that she crossed this line on this issue. I think it was completely inappropriate to cut off debate. I think it is completely inappropriate to limit council questions for the sake of expediency and getting home early. Do not pack the council meetings with some many items. Lack of adequate discussion means poor decision making. I fear this simply means that the council will decide in advance what they are going to do and make the public deliberative process a formality with the decision already having been made. That is not the way to run open meetings, to have open government, and to run a democracy.

I believe that Mayor Asmundson is a decent person. I think her heart is in the right place even as I disagree with her on some policy issues, but I think she is making a big mistake and doing it here for the wrong reasons. The public needs to make her aware of how they feel on this issue if they want change to occur.

---Doug Paul Davis reporting

Commentary: Davis Enterprise Gets It Right And Calls the Yolo County Courts On Their Conduct

It is one thing to see the Davis Vanguard complain about the conduct of public officials something that is in many ways our raison d'être. It is another thing when the Davis Enterprise does it.

Yesterday's Vanguard blog entry elicited complaints by among others Matt Rexroad and Val Dolcini, two people that the Vanguard respects tremendously despite their sometimes divergent views. One person went as far as to question whether it was a slow news day--which seemed a bit strange given that it had been a major story in both the Sacramento Bee and the Davis Enterprise.

Nothing compares however to the shock encountered reading the Davis Enterprise's Op-Ed entitled "Disturbing Pattern in Yolo Courts."

The Enterprise goes on to write:

"The issue: Wednesday's lockout of the press and suspect's family is just the latest in a string of abuses

Can Marco Antonio Topete get a fair trial in Yolo County? If there are any more shenanigans like those pulled Wednesday by sheriff's deputies and a court commissioner in Yolo Superior Court, we're not so sure."

More often than not from our view, the Enterprise has been part and parcel to this problem, however, we welcome them to the ballgame on this issue.

In defending the actions of the court here, Supervisor Matt Rexroad inadvertently made a key point when he said:

"They made a mistake under some difficult emotional circumstances."

If that is true, and it may be - we are not necessarily suggesting this was maliciousthen perhaps the Davis Enterprise is right, that the defendant cannot get a fair trial in this county.

The Davis Enterprise went on to write:

"During the proceeding, a gag order was imposed on the case, preventing participants from discussing the matter with the media. While transcripts of the hearing were later made available, the action in the court is a violation of the First Amendment.

Charity Kenyon, a media attorney representing The Davis Enterprise, The Sacramento Bee, News 10 and KCRA3 on the matter, wrote a letter Thursday to Judge David Rosenberg, who has been assigned to the Topete case. She cited the sense from the news outlets involved 'that more than a few court personnel operate on the principle that 'no news is good news.' "

They continue:

"THE YOLO COURT has a tendency to slap a gag order on every high-profile case that comes along, making it difficult for the public to get even basic information about a case from attorneys or law enforcement. Meanwhile, Kenyon said, 'The California and U.S. supreme courts have recognized that public access to court records and proceedings enhances and is an essential component of a fair trial.'

Educating the officers of the court and law enforcement personnel is the best way to prevent a repeat of this pattern. They need to learn that shielding victims from paparazzi is not the same thing as blatantly blocking the public's right to know.

Veteran Davis criminal defense attorney Rod Beede said deputies should have known the rules about open court proceedings. Just last week, the defendant in the Stevens slaying was sentenced to death after more than 21⁄2 years of hearings.

'Whenever you have a particularly high-profile case, especially when the victim is a member of the Sheriff's Department, a very, very close watch needs to be conducted on the whole thing,' Beede said. 'Anything that segregates the case as a different case is troubling.'"

On this issue, the Davis Enterprise is absolutely correct.

No one wants to disparage the memory of the slain Sheriff's deputy. However, the defendant is just as entitled to a fair trial in this case as anyone else. Mistakes happen, particularly when emotions are running high. For those reasons, it seems to be a wise move to shift this trial to another county to ensure the fair treatment of the defendant and the public in this matter.

---Doug Paul Davis reporting