Davis City Council's Annual Goals

The Davis City Council began discussion on their annual goals this past Tuesday. At some point when the discussion moves further along, we can talk those goals. In the meantime, it seems that an interesting discussion may be what people in the community want to see done in the next year.

The better discussion here would be sticking to realistic goals, for example, building Covell Village in the next year is not really practical, however, approving a given housing development might be.

Since it is my blog, I will go first and name five goals I have.

I have numbered these goals for the sake of expediency. As I typed out five, I realized I could easily have written ten. But let us start with five basic goals.

1. Grocery store in West Lake Shopping Center

I will be West Davis Centric for right now. This is really my top goal for the upcoming year. I have lived next to West Lake Shopping Center now for over eight years, unbelievably. Since May of 2006 there has not been a grocery store. Amazingly places like Lamp Post Pizza, the little Mexican place, the Chinese place, and others have not gone out of business, even as West Yost Associates has also moved.

Criticism has to be lobbed at the owner, at least in the past, who first allowed the condition of the location to deteriorate, filled in the cargo bay at the rear of the grocery store, and it is unclear how hard he searched for a grocery store of the approximate size of 15,000 to 26,000 square feet.

A good specialty grocery store could work very well in this location. It turns out there are good amount of smaller chains that specifically design small and middle size grocery stores. We just have to find one to make it work.

There are people right now hard at work trying to find the right store to come into this location. This needs to be a top priority.

2. Road safety at 2nd D / and Pole Line

I put these together. One of the most dangerous locations in Davis is the left turn onto Pole Line in South Davis as you pull out of the Shopping Center. It is like navigating a mine field. First you have a steady stream of downhill traffic from the overpass who are generally driving like it is a thorough fare. Then you need to move quickly onto a suicide lane in the center and merge into heavy traffic. It is easy to miss some in either direction. It is an intersection that either needs a traffic light or needs to be a right turn only. The left turn set up as it is, is a recipe for deadly accidents, and deadly accidents have occurred there.

The intersection at fourth and D is a disaster waiting to happen. The good news is that D street just doesn't have the high volume of traffic. However, there are a few problems with the intersection if you are driving south on D away from Fifth Street. First, it is a two-way stop, meaning you have to stop at Fourth Street, but the traffic on Fourth Street doesn't stop. Some cars do not realize that. Second, because it is a two-way stop, the fact that the view of oncoming westbound traffic is obstructed by parked cars makes it perilous.

Accidents have almost occurred there for two reasons. Either the cars on D do not realize that it is a two-way stop. Or if they do, they can't see the cars coming and almost get hit as they drift out into traffic.

The sad thing is that the solution is simple. Put in a four-way stop. Or more being innovative, put in a round-about. Either way, a simple solution would save a giant pain if you find yourself on D Street heading towards downtown. And during Farmer's Market times, it is not an area that cars do not drive on.

3. Road diet on Fifth street

There are all sorts of problems with Fifth Street between B and L. First, traffic moves way too fast between those areas. Second, you have bikes that do not have a bike lane. Third, you have no turn lanes for people moving off Fifth. Fourth, you have no suicide lanes for cars moving on fifth. The result is that Fifth Street is an accident waiting to happen, and it often happens.

I drive on this stretch all the time, the biggest danger is the car turning onto Fifth Street because they have to wait for the traffic to die down and then they often try to squeeze into a very narrow space. Sometimes they misjudge that space, sometimes they don't see an oncoming car.

Contributing to that problem is of course the speed of traffic moving through there, which is why one proposal is a road diet, that would slow down traffic by narrowing the street to two lanes rather than four. This would cause congestion, which would lead people to avoid the area somewhat, but it would slow down traffic. They could then make turn lanes and suicide lanes to avoid the other problems of turns. It would also free up space for dedicated bike lanes.

This has been a subject of ongoing discussion. The DDBA and the Chamber of Commerce are concerned about the impact of changes to Fifth Street on business going to downtown. Nevertheless, this is an issue that needs to be resolved in a way that addresses safety concerns, bicycle transportation needs, pedestrian cross-concerns while at the same time not harming the downtown. A tough issue, but one that needs to be addressed.

4. Transparency in City Government

Those regulars to the Vanguard understand how heavily our focus looks at open government and transparency. This was an issue that Councilmember Lamar Heystek raised as well and of course we have some ideas.

Last year we raised the issue of the storage of public records. The concern was that the city only stores for instance the recordings of meetings for a few months, passes it on to the library who stores them for two years, but after two years those records are destroyed. So the only record we have of council meetings past two years are the minutes which are by design slim on detail. Thus past conversations and debates are largely lost. The issue was brought up at a joint HMRC-Council meeting this year and the council agreed this was an important issue and they wanted to look into way to store records of this nature.

That is really the beginning of the issue of open government. I would like to see the city pass some sort of sunshine ordinance which recognizes, as other cities do, that governing acts like the Brown Act and the California Public Records Act are minimum standards for open government, rather than the limit for open government.

In my dealings with the city, they have been pretty open to public records requests and willing to work with me for the most part. Unfortunately, the California Public Records Act is one of the weakest open government record acts in the country. That is also a legislative goal as well to strengthen it, but much can be done on this even at a local level.

5. City Council to find working system for council comments

When Mayor Asmundson took over, there was a big concern about her limiting the public comments portion of the agenda. I still think this is somewhat problematic on tough issues, but she does appear somewhat flexible when large crowds come up. To me, you have to stay late to allow members of the public to speak. It does not happen all the time, but when it does, it should be accommodated.

In the meantime, the problem has arisen at the last two meetings when the Mayor has cut off Councilmember Sue Greenwald. Again, I do not agree with limiting time for a councilmember to speak. However, if that is going to occur it needs to occur in a systematic manner. To me, it appears that the Mayor cuts off Councilmember Greenwald quicker than she does other people.

If that is how she wants to run meetings, my recommendation is to announce in advance of an item that each councilmember has a certain amount of time to ask questions and then enforce it across the board. That probably is not the best system to use, but it would avoid some of the current flare ups.

Alright those are five of my council goals for 2009. There are clearly some key ones I missed like vacancies in downtown business, parking in the downtown, transportation, energy efficiency, re-examining the water issue, and much more. I could easily have done ten. I am curious as to what other people want to see.

---David M. Greenwald reporting

Vanguard Loses Efforts to Get Email Through Public Records Act

It has been a long process that has apparently ended this week with a visiting Judge from Colusa County denying a writ that would have required the city of Davis to release an e-mail that was requested by the Vanguard through a public records request. There are appeal options however.

The story begins in early January of 2007. Based on a tip, the Vanguard ran a story that became a bombshell that reverberated throughout city. On January 10, the story ran on a formerly fired police captain ending up on the short list for police chief.

According to the tip, a Yolo County Judge, Dave Rosenberg, had sent an email to the Davis City Council lobbying them to hire this individual as police chief.

On January 22, 2007, The Vanguard made a simple request to obtain the email through a public records request shortly after the story first ran; however, the city denied the request--twice. They argued that this was part of the deliberative process and was thus exempt from disclosure under the exemption clauses of the California Public Records Act. Furthermore, they argued that this was part of the application process and thus exempt for disclosure.

Under the California Public Records Act, the eventual recourse for obtaining records is to take the agency to court. One of the problems with the California Public Records Act is that there is no administrative appeal other than to the denying agency. There is no independent agency that can examine PRA Requests. And there are minimal penalties for failure to disclose--basically you can receive the requested documents and recover court costs... if you win in court.

In March, with the help of Attorney Don Mooney, the Vanguard formally filed a petition for writ of mandate. Because the request involved Judge Dave Rosenberg, we quickly realized that no Yolo County Judge would take the case. So we had to wait for a visiting judge to take it. It would be until June 13, 2008 before the case was finally heard. Already nearly a year and a half after the fact. This is one more example of the many problems associated with the Public Records Act. The city has now long since hired a new police chief.

The city argued:

"During the recruitment process, Judge Rosenberg (former Mayor of the City), sent an e-mail to the Council with a recommendation regarding one of the applicants, apparently under the mistaken perception that the City Council was responsible for appointing the Chief of Police."

The problem with that argument is that Judge Rosenberg is a former Mayor of Davis. Of all people, he knows the rules and knows that the Davis City Council is not the body that hires a police chief. The City Manager is.

The city goes on to argue that the application process is confidential and the applicants submitted to the process under the belief that their applications and related papers would not be made public. For some this would potentially subject them to problems in the work place.

Our counter-argument here is simple. This email was submitted not to a decision-making body but rather to the city council, outside of the normal application process. Thus this is not a simple letter of reference made to an authority that has hiring power. Judge Rosenberg knew the law and was using this as an opportunity to try to lobby for his friend to get hired.

In addition, the PRA allows disclosure of documents that might otherwise be exempt if there is a strong and compelling public interest to so.

To this point, the city argued:

"Against these strong privacy interests, there is no strong public interest in disclosure. The only possible public interest served by disclosure of the e-mail regarding the unsuccessful applicant is to assist the public in determining whether the City Manager is accurately carrying out his responsibilities in investigating and approving applicants for the police chief position. However, such checks on the process are not necessary when the top five applicants were interviewed by panels made-up of various individuals, including local residents. Disclosure of the e-mail would serve no other purpose than to embarrass the unsuccessful applicant and unnecessarily intrude upon the privacy of both the applicant and the author."

However, to our point, a point that the Judge seemed to agree on during oral arguments, there is a strong and compelling reason for the public to know in this case. You have a sitting judge making a recommendation to the Davis City Council, which is outside of the normal application process. In other words, this is tantamount to a lobbying effort by Judge Rosenberg to pressure the Davis City Council to hire his buddy to be police chief. Judge Rosenberg has to reside over court cases brought forward by this individual and the people under this individual's charge and duty.

As Don Mooney wrote in the response brief:

"Petitioner disagrees with the City's assertion that this would be only public interest served by disclosure. The City's argument ignores the source of the e-mail and the recipients of the email. The recipients of the email was not the City Manager, but the members of the City Council. More importantly, the source of the email is a Yolo County Superior Court Judge, who is now the Presiding Judge of the Yolo County Superior Court. Presumably matters involving the City of Davis Police Department will come before Judge Rosenberg in his capacity as a Superior Court. The Police Chief will be responsible for the policies and actions of the officers under his command and such policies and actions may be reviewed by the Superior Court in any number of ways and instances. The matters that come before the Court may range from criminal prosecutions in which police officers and/ or the police chief testify, to alleged police misconduct to alleged civil rights violations involving the Davis Police Department...

The City's argument may carry more weight if the "letter of reference" was not sent by a judicial officer but instead by a neighbor or former employer or an average citizen within the community. But it was not. As such, a strong public interest exists in disclosure, not to review the role of the City Manager in carrying out his duties, but to review the role a Superior Court Judge sought to have in the selection of a Chief of Police."

The Judge in oral arguments seemed to agree with this view, pressing the city very hard on this issue. However, in his ruling, he ruled on their side following an "in camera" review of the email in question.

In a four page ruling, the Judge wrote:

"The overarching principal is to protect the privacy of the individual and the principal must be applied in this case not withstanding the circumstances under which the case is now before the Court. In balancing the public interest in disclosure against the competing public interest of preventing secrecy in government the Court finds based on this document that disclosure would be an unwanted invasion into the privacy of the applicant and the Court finds no compelling public interest in disclosure and the need for protecting the privacy of individuals in this class of circumstances clearly out weighs any public interest in disclosure."

This was clearly a disappointing ruling from the perspective of the Vanguard and the fight for the public's right to know. I still believe that there is a very compelling reason for this document to be made public, because it shines a light on what I believe was an inappropriate attempt by the sitting Judge, a Judge who is now the presiding officer of the court, to insert himself into the hiring process for the Davis Chief of Police. That action in my view is highly inappropriate and the public ought to know what exactly Judge Rosenberg said in lobbying a body that had no power whatsoever to hire the police chief and in fact had no knowledge of who the finalists for the position even were.

According to the law, the Vanguard has the right to appeal the ruling within 60 days of it being filed. However, this would be a costly endeavor and that cost must be weighed against the chances for success.

To this day, this process has been a valuable one to give me further insight into the process and the weaknesses of the Public Records Act.

On Wednesday, on the Vanguard Radio show, we talked with Investigative Report Thomas Peele, who is an expert on the California Public Records Act and watchdog Barry Allen of the group, the Vanguardians, a Glendale-based public watch dog organization. One of the main topics was the California Public Records Act and how the Act is weak. Thomas Peele for instance had numerous suggestions on how to improve the public records act. To listen to the podcast online, please click here.

---Doug Paul Davis reporting

City To Look into Strengthening Public Records Retention Policies

File this one under politics makes for strange bedfellows. During the course of my investigation into Davis Joint Unified and Tahir Ahad, one thing I discovered was the key public records under the California Public Records Act and Brown Act requirements can be discarded after a given period of time.

The most important of these records are the video recordings of meetings. For example, the city of Davis retains videos of meetings for three months. One can go to the library and view videos for meetings for up to two years prior. However, beyond that two year period, videos generally are hard to come by and are not systematically stored anywhere.

That means outside of the two year period one has to rely on the minutes of meetings and newspaper articles for the historical record. Minutes of meetings are not transcripts and newspaper articles by their very nature are selective. As we discovered, you never know in the future what will be important to preserve.

As such I have made it a point this year to work with all of the local jurisdictions to expand the retention of public records. Of the three, the county seems to be the most advanced in that capacity.

At the city level, I approached Rich Rifkin, who sits on the Historic Resources Management Commission and asked him if he had interest in bringing the item forward for discussion there. He brought this item up on Monday night at the joint HRMC-Council meeting. There was consensus at that time to explore the issue.

Last night at the council meeting, Lamar Heystek brought up the item as a future agenda item. He was directed by City Manager Bill Emlen to explore the issue with City Attorney Harriet Steiner and City Clerk Margaret Roberts. Councilmember Don Saylor will join in what will become a subcommittee.

The council had clear consensus that they would like to expand their retention of such records. As City Attorney Harriet Steiner pointed out, and this is my interpretation as non-lawyer as well, the Public Records Act creates a minimum standard for access and retention, but local jurisdictions are not precluded from enacting much stronger measures.

One of my strongest passions is to have as open and transparent a government as possible. Along with that is the necessity to preserve an historic record of proceedings so that we can view past discussions and if necessarily hold elective official accountable for their past actions. We cannot do that if we lose good portions of that historic record.

There is certainly an expense and a space concern. The fact that information can be digitized and stored on DVDs mitigates that concern somewhat. But that is a valid concern. The future will probably make the storage of such records more feasible.

It is refreshing to see commitment by all council members toward this issue and I expect that it will go forward in an expeditious manner in the future.

---Doug Paul Davis reporting

Notes from the Underbelly

What is a Hate Crime?

Some weeks, there gets to be so much to report, I literally cannot report on it all. This was one of those weeks. In fact the constant flury of activity has created a backlog of stories that need to be reported or commented on.

We learned nearly two weeks ago that was originally thought to be a hate crime, was in fact a ploy used by a group of teenagers to deceive police and throw them off their trail.

From the Davis Enterprise on January 14, 2008:

"Davis police announced this morning the arrest of a local teen and the pending arrests of four others on suspicion of vandalizing Holmes Junior High School last month with a large amount of graffiti, some of it bearing racial slurs.

But while police initially investigated the incident as a hate crime , they later determined that the slurs — targeting Asians, African Americans and Latinos — were used as a tactic "to throw off the investigation," Sgt. Scott Smith said.

On Friday, detectives arrested a 14-year-old African-American girl in connection with the case, describing her as the organizer of the vandalism spree. Four other girls, ranging in age from 13 to 15, were expected to be taken into custody this morning."

The community originally reacted to these attacks as though they were hate crimes. I would argue that they still are. According to Sgt. Smith:

"Through our investigation, we obtained confessions from all the parties, and they were consistent in their statements that the motive for the racial slurs was to make people believe that a white person had done this."

Some argue that hate crimes are actually just thought crimes, dependent on motivation and hate for their force. Of course all crimes are in part thought crimes, motivation helps differentiate first degree murder from involuntary manslaughter. But hate crimes are more than that. They are in fact an act of terrorism aimed not just at an individual victim but at an entire community. Thus I would argue that this crime is just as much a hate crime as it would be if a white person had done it.

Does the fact that the perpetrator was black, change the impact it had on the community when the crime was first detected? No. In fact we can add to it that they were trying to frame white community members for the crime.

Finally, the reaction from the Principal of Holmes Junior High:

"Derek Brothers, principal of Holmes Junior High, today described the vandalism as an "unfortunate incident." He declined to comment further, citing the ongoing police investigation, but provided a copy of a letter sent home to parents last week.

"These crimes are extremely disturbing and contrary to all we believe and teach. Although unfortunate, such incidents do provide teaching opportunities about racism and hate crimes ," the letter says. "Many of our teachers will be discussing this incident in their classrooms and making clear that what has happened is unacceptable for our schools, our community and our country.

"As parents, you can reinforce these lessons and help your children understand that hate language hurts all of us and damages the very fabric of our democratic society," Brothers says. "

Frankly I do not see how the fact that the perpetrators were not white changes the impact of the incident. At the end of the day, a hate crime is a hate crime. I think we have just as much of a problem now as we thought we had a month ago. Maybe even a larger problem.

Open Government

I do not know how many people saw this item earlier this week in the local paper:

"Los Angeles County District Attorney Steve Cooley was honored today with the Freedom of Information Award by the California Newspaper Publishers Association and the California Society of Newspaper Editors. The award was presented at a luncheon at the Government Affairs Day Luncheon at the Sheraton Hotel in Sacramento.

The award was based in large part on Cooley's sponsorship of Senate Bill 690 (Calderon) in 2007. This bill grants the public greater access to information about criminal charges and the outcome of criminal cases.

In accepting the award, Cooley credited Special Assistant District Attorney Jim Provenza, a Davis resident, for the new law.

'Without Jim's tireless efforts, this important freedom of information law would not have been adopted,' Cooley said.

He went on to note that, in addition to representing prosecutors full time at the state Capitol, Provenza served last year as president of the Davis Board of Education.

'Under Jim's leadership, the school board implemented a sunshine policy that provides much greater public access to meetings and documents than that required by the Brown Act and the Public Records Act.'

Provenza has said previously he views these laws as minimum standards.

'Making government accessible to the very people who fund it is fundamental in a democracy,' Provenza said in a news release. 'It's frustrating we still have to make that known in some circles, but as long as I serve the public, in whatever capacity, open government will be a priority.'"

This blog and this blog writer have long been dedicated to greater public access to information and sunshine. As we speak, behind the scenes, efforts are underway in conjunction with local government officials to further open the process and provide the public with access to information about what is happening in their government. Transparency is the greatest and most important principle in democratic government.

Senate Bill 690 is a modest effort that amends the law to establish procedures for the release of Summary Criminal History Information. Summary criminal history information includes basic blotter sheet information such as a person’s name, physical description, date of arrests, arresting agencies, booking numbers, charges, dispositions and other data. It gives the public greater access to specific details about a subjects criminal history. It would make these detail subject to the Public Records Act, so that any person could make a written request for that information.

This is not a new thing for Jim Provenza. While a member of the school board in Davis, Mr. Provenza fought long and hard to conduct meetings in open session unless specifically precluded to by law. When he first came to the board, the general practice was for the board to do things in closed session. The Brown Act specifically requires public business to be done in public unless interests of privacy or litigation specifically preclude it, but that was not the practice of the board when he first arrived.

California still has among the weakest public records disclosure requirements in the country, with a great amount of information still exempt from disclosure. The failure of the State Legislature last year to reauthorize civil police oversight and allow police disciplinary records become public (SB 1019) was a devastating blow to free speech and open government advocates. However, SB 690 was rightly seen as a step in the right direction.

---Doug Paul Davis reporting