City Manager’s Handling of Fire Report Undermines Investigatory Process

Davis City Council Never Sees Unredacted Report from City Ombudsman Bob Aaronson

The City of Davis spent $35,000 on an independent investigation of the fire department, conducted by Bob Aaronson, who mostly serves the city as a part-time police ombudsman. However, given the decisions made by City Manager Bill Emlen and City Attorney Harriet Steiner, who may be the only people aside from Mr. Aaronson to see the full unredacted report, one might question what the purpose of this was.

The logic behind the independent investigation was to have a neutral third party investigate the allegation that arose from the Yolo County Grand Jury Report. Bill Emlen, as city manager, is the individual responsible for the conduct of those who serve under him, such as Fire Chief Rose Conroy and those under her supervision.

The Vanguard spoke with Mr. Emlen on Friday. He indicated that the City Council was only allowed to see a redacted version of the report. However, the Council was not allowed to take the report home with them and only allowed to read it in his presence.

The public has not even been allowed to view the redacted report. All the public has at its deposal is a Staff Report written by the City Manager himself that supposedly cites Mr. Aaronson’s conclusions and excerpts from the Ombudsman’s report itself. However it is framed and written by the City Manager.

The important question is why the elected representatives of Davis voters have been denied by two appointed city officials the ability to read the full report. Not one person with any direct accountability to the voters has been allowed to review the report.

Bill Emlen told the Vanguard that allowing the City Council to see the report would involve them in personnel matters and would expose the city to potential lawsuits by employees. However, several people with city attorney experience that the Vanguard has spoken with have questioned whether this is a realistic fear. For one thing, elected school board members are allowed to view personnel files without such risk. Moreover, it is unclear whether or not the city has ever been sued for this kind of matter.

Furthermore this brings up the question as to whether the City Councilmembers should be treated in the same manner as members of the public in terms of their ability to review personnel files. That is the position that the City Attorney takes in this regard.

It seems somewhat obvious that a City Councilmember is not simply another member of the public. And moreover, that if the only true power that they possess in matters such as these is the power to hire and fire the City Manager, then how can they properly evaluate the City Manager unless they have some mechanism of oversight? Specifically whether the City Council can judge if the City Manager can properly evaluate and manage employees under his direct and indirect supervision.

This might all be a moot point if the City Manager’s report faithfully communicated the findings, tone, and spirit of the independent investigation conducted by the Ombudsman and only removed from it references to personnel matters. However, there appears to be only three people capable of making such an assessment and only one of them does not have a vested interest in non-disclosure and that would be the independent investigator himself.

Bill Emlen told the Vanguard on Friday that while he had sent Mr. Aaronson a copy of the redacted report, he had not spoken to the Ombudsman in at least two weeks. Mr. Emlen did not seek Mr. Aaronson’s approval or input on this Staff Report written solely by Mr. Emlen and reviewed by Ms. Steiner nor did he seek the approval or input on the redacted copy of Mr. Aaronson’s original report and findings which were shown to the Councilmembers. Mr. Aaronson has not been asked to sign off on either document.

In other words, we have no idea at this time if this Staff Report is consistent with the findings and report that Mr. Aaronson submitted to the City Manager, Bill Emlen.

The good news for Davis residents is that Mr. Aaronson will attend Tuesday night’s meeting where the findings of this report are presented to the Davis City Council and the public. The City Councilmembers will have a chance to ask Mr. Aaronson directly to describe whether or not this Staff Report is an accurate depiction of the one he submitted nearly two months ago to the city manager.

Unfortunately, the Vanguard has no confidence that this has occurred. There is absolutely no transparency, no accountability, and no oversight of this process by anyone without a direct stake in the outcome of the findings. The elected City Councilmembers and the public are forced to take the City Manager and City Attorney at their word that this is an adequate representation of Mr. Aaronson’s report.

To be sure, there may be valuable insight gained from an internal review of the Fire Department, however, from the standpoint of the City Council and the public, the $35,000 could have been better spent elsewhere if all Mr. Emlen was intending to do was act as the “gatekeeper of information.” From that perspective, he may as well have conducted the investigation himself and saved the city the added costs.

However, that perspective may change on Tuesday night depending on what Mr. Aaronson says at a public meeting and what questions are asked by the Council and the public regarding this matter.

Mr. Emlen expressed the hope that the public would have confidence in how this matter has been handled and satisfied that the City conducted a thorough and rigorous review, that they have found a number of problems, and that the City has moved quickly and swiftly toward resolving these problems.

I say to my readers today that I share no such thought and I give Mr. Emlen and his handling of the process no vote of confidence.

The issues that the Grand Jury report was able to bring forward appear to have been known for some time by those in the fire department and perhaps the city manager’s office itself. Many of these things either occurred on Mr. Emlen's watch or continued on his watch. The pattern of the City not having proper oversight and accountability procedures has been continuous through the Vanguard’s various investigations. The fact that the City does not properly oversee the fire department probably means that the fire department is not alone in the type of problems that the Grand Jury uncovered.

Nothing short of full disclosure of this report to the City Council is an acceptable outcome at this point.Regarding oversight and accountability concerning this investigation, there is no longer any trust extended to this City Manager in his handling of his oversight duties and accountability directly to the City Council and by extension the people of Davis. The people of Davis deserve oversight and accountability. They have been provided with neither in this case. All we have are a couple of unelected officials who have constructed flimsy excuses in order to deny the Council the ability to fully read and evaluate what the Ombudsman uncovered during his lengthy and costly $35,000 investigation and whether City management has taken these allegations seriously and made effective corrections..

---David M. Greenwald reporting

Independent Investigation into Yolo County Grand Jury Report

In June of 2008, the Yolo County Grand Jury issued forth a report, concluding a nearly two-year investigation in the conduct and management of the Davis Fire Department (DFD). Among these included questions about promotional practice, a hostile work environment, the misuse of DFD facilities by inebriated off-duty firefighters, strain in the relationship between the DFD and the Davis Police Department, and finally improper influence of the Davis firefighters' union.

After considerable prodding, the Davis City Manager Bill Emlen asked Bob Aaronson, the City's Ombudsman to conduct an independent investigation into the complaints. Mr. Aaronson turned in this report shortly after Election Day, however it has taken nearly two months for the City to process it.

The City is not providing the public with the full report, instead we have the Staff Report written by City Manager Bill Emlen which excerpts from Mr. Aaronson's report and interjects Mr. Emlen's own analysis and interpretation.

At the outset the most important finding, and one never in question, is that nothing in this report and indeed the Grand Jury allegations is the work product performed by the department in question. Any issues regarding the fire department revolve around somewhat peripheral matters and in the larger scheme are a byproduct of the ongoing policy debate over spending at the city level and maximizing service at a cost-effective manner.

"Perhaps the single largest unaddressed area is the quality of service DFD provides to the city of Davis and its residents and visitors. The Davis Fire Department receives very, very high customer satisfaction results from community surveys. Our firefighters are skilled, experienced and welltrained. Their equipment and facilities are meticulously maintained. As well, Chief Conroy and the firefighters’ union have been increasingly successful in building a partnership unusual in the fire service, to the extent that the Davis Fire Department has become a model for fire service organizations regionally and nationally."

According to Bill Emlen's accounting of the investigation:

"The investigation identifies several areas that deserve attention. Those are described below, along with actions being taken in response. There are certain personnel related issues identified in the investigation that we will follow-up on and monitor as appropriate."

Here are some of the key findings:

• Management issues related to Shunning and Favoritism.

Mr. Emlen's words:

"The report suggests that this is plausible, but there is no direct evidence to prove that this has happened."

Mr Aaronson's words:

"There are still a group of employees who could reasonably be described as disgruntled… I found no evidence that either the Chief or the union explicitly directs anyone to be shunned or ostracized. Based on the interviews, any shunning is more a reflection of those employees that have become so polarized that they have become ‘unpleasant’ to deal with, and not as a punishment for being outspoken. To the extent that there is any shunning based strictly on opinions held, there is no evidence that any sort of formally organized conspiracy exists; if people aren’t talking to each other, it’s based on personal preference and not because someone told them not to."

We have no idea from Mr. Emlen's version what Mr. Aaronson said after the word, "disgruntled." It is important to recognize that even Mr. Emlen suggests the finding is "plausible" as in not disproved.

• Retaliation/Hostile Work Environment.

Mr. Emlen's words:

"Some employees claim they feel that retaliation is possible, but there is no proof or specific incidents uncovered by the investigation. There are no pending complaints or grievances from the Fire Department lodged with the city of Davis regarding retaliation.

Although the investigation is not conclusive in these areas, and we have no indication there will be any negative ramifications to individual employees in the future, the fact that the investigation has taken place warrants additional precautionary measures for all who participated in the process. All major disciplinary actions, including written reprimands, already involve the Human Resource Division. Effective immediately and for the next 12 months, the Fire Department will prepare monthly incident reports to include all disciplinary action beyond verbal comments for review by the Human Resource Division. We will also make it clear to all Fire Department employees that they are free to bring these issues to the attention of the City Managers Office if they wanted to elaborate on any issues raised. It is important to note that this has always been an option, but it is clear that some employees may have been hesitant to do so, given the relative independence that the Fire Department has had from city administrative functions. The fact that they operate in physically separate facilities also contributes this factor. In light of the investigation and the many Fire Department employees who participated, we just feel it is important to reiterate that they are free to bring forward issues without negative ramifications."

We never do get to see any of Mr. Aaronson's report. However, clearly Mr. Emlen felt this was a serious enough possibility to take precautions.

Grievances

Mr. Aaronson's words:

The Forum for Workplace Disputes Between Captains and Firefighters In the course (of) our discussions about the use of the grievance process, I learned…that the most recent grievances (“several years ago”) brought to the union for resolution with management weren’t even forwarded to management at all. Apparently, only grievances against chief officers are forwarded to management; grievances against a captain by (a) firefighter would be resolved by the union on its own.

In my view, a grievable dispute between a firefighter and her/his supervisor that arises out of their supervisor/subordinate relationship …should be subject to resolution by management. Regardless of his/her status as a union member, a captain supervising a crew member is employing a manager’s powers delegated to her/him by the department head; if the captain has overstepped, erred or otherwise offended a subordinate in so doing, it is managerial prerogatives that are being grieved against. Management, through the formal grievance process, should be afforded the opportunity to weigh in.

Mr. Emlen words:

"Effective immediately, such grievances will be required to be forwarded to Fire Department management and copied to the Human Resources office and follow City personnel rules, rather than be handled solely by the union. Employees will be reminded that they have several avenues through which they can lodge a complaint or file a grievance, including pathways that do not involve going to anyone within the Fire Department. We further understand the unique situation and dynamic created when the union leaders are also in leadership and/or supervisory positions within the Fire Department. Weighing the rights of the union and its members with the public obligations of the management of the Department will continue to be a balancing act."

• Union Bank Hours

This was not contained in the original complaint, we will have a separate story on this at some point backgrounding it. The bottom line here is that there were some allegations that arose about the misuse of these hours and the city does not keep track of how these hours are spent, which is problematic at best.'

Mr. Aaronson's words:

"The City, pursuant to its MOU with the Union, deposits 24 hours per year per firefighter and captain in the ‘Union Hour Bank’. This amounts to a considerable 1,080 hours each July 1st. Union members asserted that, for the most part, the union had complete discretion on how it chose to use/allocate these hours. Yet, according to the MOU,

“The purpose of this Union Hour Bank is solely to provide educational training and development opportunities to Union members and should not involve conducting or participating in other agencies’ unions activities.”

I gather this is to facilitate, in part, the attendance of union members at State and National union conferences, where training is typically part of the scheduled activities.

As I understand it, the union does not maintain records of how these hours are utilized and the City has never requested an accounting from it."

Mr. Emlen's words:

"Because the current Fire MOU stipulates specific acceptable use of this time, the lack of a written record is problematic. Currently, all requests do go through the Chief but the process is strictly verbal. While there is no indication in the investigation that there has been improper use, the lack of a written record is problematic. Effective immediately and for audit purposes, the Chief will be required to keep written records of requests adequate to address the MOU limitations on Union Bank Hours. This information will be forwarded to the Human Resources Division to monitor purpose and hours usage. The City may also discuss union bank hours further during upcoming negotiations with the fire union."

• Political Activities and Donations.

Mr. Emlen's conclusion:

"The Grand Jury Report suggested potentially inappropriate political activities and donations made by firefighters and the union. Firefighters, as members of a union, have an absolute constitutional right to participate in activities and provide donations, provided they do not do so on City time or as official representatives of the City. The report finds no instances of wrongdoing and any changes or policies put into place are those for the union, not the City, to consider."

• Promotion Process.

One of the key findings here is that while the fire department apparently followed the prescribed protocol, that protocol is inherently problematic.

Mr. Aaronson's words:

"Based on my interviews, the promotional process has been a flash point within the organization for over a decade…In fact, the single most common starting place where employees become ‘disgruntled’ is in connection with the promotional process. To the extent that certain circles believe that favoritism is a cornerstone in Chief Conroy’s department, their key proof is based upon their perception of how the promotional process has worked…Apparently, Chief Conroy has been aware of this perception for some period of time. This is part of the reason why she is at such pains, during each process, to meet with the candidates and go over, in great detail, how the process works…"

He continues:

"The Rule of Three vs. ‘The Rule of the List’

Most of the public entities with which I have previously worked operated under either the rule of three or the rule of five…In essence, after a formal assessment process, a final list of the candidates is compiled by someone other than the final decision-make/department head, wherein the candidates who meet the minimum qualifications are ranked in the order that they finished. The department head then interviews the top three or five candidates (hence the rule of three or five) and picks one of them. The department head is limited to either the top three or the top five. As well, the department head is excluded from the process whereby the list is compiled in order to ensure against manipulations."

Mr. Emlen's synopsis:

Mr. Aaronson’s findings included:

• Current process not adequately transparent to the stakeholders
  
  
• Multi-faceted assessment center should do more than to determine minimum qualifications. Otherwise, abbreviated assessment center should be utilized.
  
  
• Final rating portion of process was arbitrary.

His recommendations include:

• The determination of the candidates’ ranking based on training, education, and performance ought to be completed by some manager other than the ultimate decision-maker, in order to minimize the potential perception that the process, despite rigid assessment rankings is ultimately overly subjective.
  
  
• Only the top three to five candidates ought to be forwarded to the decision maker for a final decision.
  
  
• Records generated in the course of the promotional process should not be destroyed by the department or its managers.

Mr. Emlen:

"On this issue, it is important to note the process followed under the recruitment highlighted by the Grand Jury was in accordance with established procedures. It is also important to note that candidates selected were well qualified for the position. That said, the report does a good job of identifying why the current process could be improved for future recruitments with respect to clarity and minimizing questions of subjectivity in the final determination.

I concur with the investigation that improvements to that process can and should be made to refine and strengthen it. The Human Resources Division will work with the Fire Department to consider the above recommendations or other changes to the current promotional process to address the concerns and finding outlined in the report."

One point of question is that if this was such a flash point and Chief Conroy knew it was a flash point, why has this issue not been addressed far sooner?

• Off-duty Sleeping in the Station by Inebriated Firefighters

Aaronson's words:

"A subcategory of this practice has been permitting intoxicated off duty firefighters to return to the station to sleep instead of driving under the influence.

Having asked everyone I interviewed, I could find no instance of any off-duty intoxicated firefighters interfering with on-duty crews. The closest I came was a single instance, reported by three separate sources, where a drunken firefighter vomited on an on-duty member’s blankets.
In my view, this issue represents a real dilemma. Certainly, I would be inclined to allow sober off-duty firefighters to use their otherwise empty beds on the basis that it saves gas and time as well as making available an additional trained person in the event of a major emergency, so long as off-duty employees in no fashion interfered with on-duty crews.

The problem is introduced when the rule permits off-duty intoxicated firefighters to return to the station rather than be forced to navigate their own way home. While no one wants anyone to drive under the influence, the City is not providing beds to other intoxicated people, only off-duty firefighters."

Mr. Emlen:

"This practice, while understandable from a personal and public safety perspective, is still an unacceptable use of public facilities. It does not appear to have occurred very often, but any occurrence is problematic. The City’s personnel rules, which provide that no employee shall be inebriated at the work site, will be enforced and off-duty firefighters will not be permitted to be at the station while inebriated. The Fire Chief is aware of this and is in agreement. Like any other city employee, firefighters will be expected to utilize other options, such as local hotel accommodations, taxis or designated drivers. Off-duty firefighters will still be permitted to sleep at the station before or after shifts when they have additional department-related activities to pursue."

• Badging

Lengthy excerpt from Aaronson's report:

"Two years ago, there was a clear perception amongst Davis police officers that drunken off-duty firefighters were a small, but visible presence downtown some evenings. On occasion, they presented enforcement issues to the officers. This problem has substantially diminished as a result of all of the following: the closing of the firefighters’ favorite bar; the union president’s having spoken to his membership about the problem; the attention that an incident received in the department after two firefighters were disciplined for an off-duty, intoxicated incident downtown; and the attention focused on the department as a result of the GJR.

There are three known incidents involving off-duty firefighters downtown. In one, the firefighters were blameless and only attempting to protect a third party from injury. The second, where two firefighters were disciplined, was addressed by the Chief satisfactorily. The third is an instance where what the police department learned was never conveyed to the fire department for their own resolution.

This third instance, based on the contemporaneous statements of witnesses, may have encompassed (an) assault committed by an off-duty intoxicated firefighter at the end of a barroom disturbance. The matter was not forwarded to the district attorney for criminal prosecution due to the lack of cooperation by the victim…I have not attempted to investigate this incident other than to read the police reports and I therefore cannot ascertain whether or not the firefighter committed a…crime. But, on the face of the report, the matter should have been followed up on more vigorously by the police department and the report should have been forwarded to the Fire Chief for an internal personnel investigation.

At my request, a rather thorough search of the dispatch records was conducted to determine whether there were other incidents in the last 18 months. There were none. On the other hand, anecdotal communications between the police officers and with dispatchers surfaced, which tended to confirm that there were periodic incidents downtown where off-duty intoxicated firefighters were causing or becoming involved in minor public nuisances. …Both police officers and firefighters report that intoxicated firefighters regularly identify themselves as firefighters to police officers contacting them in connection with taking enforcement actions.

In the law enforcement world, when an off-duty officers so identifies himself, it is called ‘badging’. ‘Badging’, which used to be somewhat common, is now very much frowned upon and frequently subject to disciplinary action. A peace officer is prohibited from trying to use his official capacity in order to gain personal benefit, including special consideration from on duty officers…I suggest it would not be unreasonable to enforce this rule in the fire service as well."

Mr. Aaronson's report apparently also made note that the fire department, like other city departments was behind on timely evaluations of its employees.

Furthermore the city, failed to record what materials had been turned over to the Grand Jury.

Mr. Aaronson:

"City’s Failure to Record Materials Turned Over to the Grand Jury Inexplicably, when, in response to the Grand Jury’s request, the City turned over records to the Grand Jury, the City failed to either make a record of what it turned over or even a second set of copies of the documents. This meant I was unable to ascertain what the Grand Jury had actually looked at."

There were also a number of factually disproven Grand Jury allegations. Chief Conroy's husband was not the former Union Vice President, though he was and is a member of the union. Staff has never provided child care for Chief Conroy. The issue of the retirement party had to do with the fact that the individual wanted certain employees excluded from the party. There were no employees who reported problems with their personnel files. 19% rather than 80% of DFD firefighters live in Davis.

There are a number of concerns and questions that this report addresses. Instead of joining the commentary and analysis to the summary of this report, I will have my initial commentary in a separate article published concurrently.

---David M. Greenwald reporting

Former Davis Mayor Julie Partansky Passes Away

My friends, I have sad news to report tonight. Julie Partansky, a friend, an ally, and an all-around wonderful person passed away last night after a brief battle with lung cancer. She was just 60.

Ken Wagstaff, her friend and colleague on the City Council shares a few thoughts with the community:

Julie Partansky was a unique and sensitive person. Her personality combined whimsy and serious purpose, creativity and practicality, fun and hard work.

No one I ever knew had such a deep sense of the magic, the happy unpredictabilities of life, yet was very organized and focused. When Julie presided as Mayor, I was Mayor Pro Tem. She would come to meetings better prepared than most people in the room. Her briefing book would have markers sticking out all through it, with questions and notes that she wanted to pursue.

Those who knew Julie only as an artist and musician were surprised that she could put down her paint brush, set aside her marimba sticks and deftly handle the Mayor's gavel. Julie would often have a wider view of an issue than the rest of us, and would see new opportunities earlier than others. She would be tenacious about things she wanted the City to do, or not do. Even before she was Mayor, her leadership was key to the grass-roots effort to prevent the Richards Boulevard undercrossing from becoming a 4-lane extension of the I-80 off-ramp. And when she was Mayor, she worked hard on growth control, always reminding us that humans do not have a divine right to pave over the land. Julie energetically achieved the precedent-setting Davis outdoor lighting ordinance, which reduces glare and preserves our view of the night sky.

Once on her birthday someone gave her a certificate that named a distant star for Julie. She was delighted. Julie had a favorite shirt covered with little stars.

These things may seem whimsical, but to be able to gaze across a Davis parking lot or other open area at night and see starry sky is her tangible gift to us. Julie was a bright star with a twinkling personality, and we will miss her dearly.

Please feel free to share your thoughts and memories with the community.

---David M. Greenwald reporting

Commission Looks At a Variety of Senior Housing Needs

The Senior Citizens Commission met on Thursday. Along with the Social Services Commission they have been working on a proposed set of housing guidelines that will become increasingly important in the city as we move toward a full blown discussion on Senior Housing Needs. It is important to identify such needs independently of developer driven housing demands that we have already begun to see come forward such as the one we saw last week in the Davis Enterprise which is pushing for an 800-unit complex at the Covell Village site. The city of Davis on the other hand, has projected the senior housing needs for the next five years or so at a much more modest 150 units.

However it is important to recognize that Senior housing has a very particularized array of specific housing needs, and these needs need to be understood and incorporated into the general discussion on housing.

For example:

"The Commissions support the expressed preference for a variety of housing options that allows individuals to remain in their own homes, more commonly referred to as aging-in-place."

Part of that means that houses can be built in such as a way that they can be adapted and modified to meet the needs of an aging population. That means doorways wide enough to potentially accommodate wheel chair access, that means that the general housing structure is made so that they can be modified to accommodate a senior occupant without having to rip the house apart.

The report goes on to say:

"The Commissions place importance on providing housing that can address the specific needs of seniors and other special needs populations within the city's general housing stock, while also recognizing the need for some specialized housing options."

Here are some of the key issues that highlight this report.

The issue of accessibility and visitability is crucial. A lot of older homes, people with wheel chairs simply would not have access to in order to even visit. They discuss making a checklist of desirable features that would provide better access and usability in the housing unit.

These features could include:

"zero threshold entry, exterior and interior paths of travel, accessible half or full bathroom, accessible common room on the ground level."

They also put in language to "ensure affordable rental projects include fully accessible and visitable units..."

Transportation is crucial of course:

"Continue to promote and encourage public transit as an affordable and environmentally-sound alternative to personal vehicles."

Issues that are raised include good access to public transit, provisions for electric and alternative fuel vehicles for shared resident use and the infrastructure to support the use of these vehicles. Finally ensure adequate greenbelt and bike path connectivity.

Affordability:

"Provide a variety of housing types and prices, including city subsidized, affordable and middle income housing requirements in an effort to provide housing opportunities at a range of income levels."

Housing options:

"Promote various housing models in new housing developments that could accommodate seniors and other special needs groups."

The report suggests that there needs to be a determination of the need for housing.

"Determination of housing type should be accomplished in response to the expressed desires of the community through local outreach and measurements of local demand...

Independent Market analysis--market analysis of the true community need for housing should be done by an independent consultant."

The analysis should speak to issues of affordability, marketability, senior or special needs preferences, and current waitlists.

A couple more key senior-specific issues when looking at development of senior housing facilities.

One is on-site support staff:

"The need for medical, clinical, or psychological supportive staff and program planning and referral staff should be considered...."

Other services:

"The need for meal services, health services, recreational services and other basic life services being provided on-site should be considered."

A big issue that came up with the Eleanor Roosevelt project had to do with the location and proximity to busing. It appears that busing is close. But as the commission pointed out that is deceiving. The distance requires a walk that is prohibitive for the less physically able. Moreover it requires navigation across a busy city street.

Thus they suggest two provisions:

"If public transit access is located in excess of 200 feet from the housing project, then an on-site shuttle service should be considered for use by residents.

All multi-unit housing projects should consider providing a shuttle for use by residents."

It is understood that this is cost prohibitive and that small facilities would have greater difficulty doing this, however, they believe the term "should consider" mitigates that consideration and they want these guidelines at least considered and these issues raised at the time of development.

Location is important and they identify the need for housing to be built near public transit lines if there is no on-site shuttle, near a neighborhood shopping center especially with a grocery store and pharmacy, and near a medical facility that could provide both general health services and prescriptions.

I think this gets back to the issue of the need for neighborhood grocery stores but also neighborhood pharmacies. If we are going to have an aging population in Davis, having convenient pharmacies will be increasingly important.

These will be guidelines as the commission pointed out throughout the discussion, they will not be requirements. But I think all housing projects should keep these issues in mind for both seniors, but also for people with a variety of disabilities. This is a good start the housing discussion we are going to need to have over the coming months and years as our population continues to age.

---David M. Greenwald reporting

What Happens to the District if the State Runs Out of Cash on February 1?

For those who are hulled up somewhere away from media communications, perhaps Antarctica or the Serengeti, the state is facing a budget crisis the likes of which we have not seen before. This is not simply business as usual. To make matters worse, there seems to be no willingness for the “leaders” in Sacramento to come together on a budget that will inevitably contain bad news, decisions people do not want to make, they will have to do things that will anger their constituencies.

Just yesterday the State Controller John Chiang said that the things are on a “downward spiral.” Every day of inaction is making matters worse and no one expects an agreement any time soon.
So with that good news out of the way, here is how this mess in Sacramento will effect this community and your children.

Associate Superintendent Bruce Colby presented his non-budget budget talks. No PowerPoint slides this time because, well, we don’t have actual numbers because there is no real proposal to work with. And as was made clear by Linda Legnitto from the Yolo County Office of Education, the district is going to have to come up with a budget by March 15, 2009 regardless of whether there are actually real numbers to work with. People are going to be given pink slips. Students are going to protest. 2008 is going to repeat itself.

The district because of strong fiscal management and the passage of Measures Q and W is in better shape than it was in 2008, but not by as much as we would hope.

Mr. Colby told the district:

“The biggest thing to note and the big headlines out there is that the state is running out of cash. If they don’t do anything and get a budget for this year, they are out of cash on February 1. After February 1, they start issuing IOUs to state employees, to vendors, and people they send checks to.

There is a question as to whether they have to legally fund and give apportionments to schools. The apportionments for revenue are actually in the constitution so there is a question with the constitution if they have to pay us in cash, the question if they don’t have the cash, do they not have to pay the cash?

So the big question is what’s going to happen on February 1 when they run out of cash?”

And this is the real problem—no matter how good a job the District has done managing its money, if the state ends up defaulting on its commitments to school districts we are in a world of hurt.

Mr. Colby continued:

“So we’re back to not just deficits and fund balance and all this accounting, we’re now in the cash mode for the state level and the district level.”

Ms. Legnitto however held out the hope that due to Title 16, the schools would get their money.

She told the board:

“Hopefully Title 16 will protect the ongoing apportionment and we’ll be able to squeak through… There is at least some law on our side to get that apportionment. My recommendation is for people to conserve as much cash and be as conservative as possible in the event that the state really does default on that.”

Title 16 is the statute that makes the apportionment of money to schools a priority for the state. That statutory requirement occurs whether there is a budget or not. So if there is money, schools would get it first. But is there money? That is the open question that is going to keep many people up all night as February 1 marches upon us. More on Ms. Legnitto’s comments shortly.

Assuming we have cash, what is our cash position?

Bruce Colby projects that in the current year the state funding will fall somewhere between $2 and $2.5 million short of that which was budgeted. It gets worse. Next year we will face a $2 million ongoing deficit plus an additional $1 million to $1.5 according to governor’s proposal.

“That we do know, we’re going to have that kind of range. It gets bigger every time they look at it.”

He continued:

“The real question is not really how much at this point; it’s really where the cuts are going to come from. There are big philosophical differences with the Democrats wanting to be more controlled on the categorical side. The Governor’s plan wants to be more flexible and takes away the wall between categorical and restrictions… He threw a volley about taking away all state mandates… He is actually volleying out there saying that we don’t have to do that any more.”

In previous discussions, Bruce Colby indicated that from the district’s perspective, more flexibility was better.

As mentioned previously, the prognosticators believe that the budget situation will not be resolved any time soon.

“Talking to those in the know… the feeling in Sacramento was that he doesn’t see a short-term closure on this where people come together. In fact what he sees is that there will be just as prolonged a budget process this year as last year. So we’re probably sitting at the same place we were last year with the January revise that we have to then march through all the progressions and deadlines for that. We don’t know how that’s going to come together.”

The uncertainty makes it even more difficult to plan for next year. Mr. Colby said that he will be at a workshop next week and will understand the Governor’s plan at that point, but the problem is that it’s the governor’s plan and who knows exactly what the actual plan will look like. There is quite a distance between the governor’s plan, the Democrat’s plan, and the Republican’s plan.

The bottom line is that the district knows that we have to plan for cuts from the general fund and get ready for what comes down the pike.

Bruce Colby then addressed the end year fund balance of $10.8 million—a figure unfortunately that is quite misleading in terms of the actual district’s position.

“When we closed out the year last year, we had $10.8 million of fund balance. That’s an accounting fund balance. It’s not necessarily cash in the bank. That was split between categorical and unrestricted account ledger. $5 million was restricted categorical.”

How much of this would be available if there were additional flexibility in the budget from the governor?

“The numbers are down to about $4.4 million of that would be available at the end of this year. So there’s not $10.8 million available. Some of that has already been spent because we are deficit spending. We already had plans for some of that money and it has been spent already. When we did the budget, only $4.4 million of that is available. We don’t have $10.8 million to play with, we have what’s ever left at the end of this year’s budget. The midyear cuts in the $2 to $2.5 million range will come out of that.”

The $4.4 million includes categorical—so the district would need to gain the categorical flexibility in order to even use this.

However as Mr. Colby cautioned, the categoricals have been built up over years of legislation that has set aside money for specific purposes. Full flexibility means wiping out years of legislation and programs.

“We’d like to have as much flexibility as possible; the question is how much that’s going to happen.”

Also these bad numbers are reliant on the eventual agreement by the state to raise tax.

“The other thing I forgot to put on here is that all of these plans are dependent on new taxes. The Republicans who are the minority, but hold the swing vote, their stance is no new taxes.”

One proposal is to cut the school year by five days. Right now the requirement is for 180 days, this would cut it to 175 days. According to Mr. Colby, that would save the district around $1 million for the five days in staff compensation alone.

Linda Legnitto of Yolo County Office of Education was asked about the County’s fiscal condition.

“We are as dependent on the state revenue as the districts. In fact, I put a spending freeze in place a month ago to try to conserve our cash, in a worst case scenario, just in case the state defaults on their apportionments that we could possibly make it through the year. I’ve also had some preliminary discussions with the County of Yolo, but if you’ve read anything about their budget it’s unlikely that they are going to have sufficient revenue to really make loans either.

Once again, she laid out how bad things look:

“The state budget crisis is very real. A $40 billion deficit is nothing to take lightly. Traditionally schools base their budget projections on the Governor’s January proposal. In this his may be the best case scenario. If in fact no revenue is included in the budget solution the cuts would be greater than what he has proposed. You have to prepare for that. And unless they actually give zero COLA, you have to reach that March 15 deadline. Traditionally they give the COLA and then deficit it back to zero. That is to your benefit because when they do that, that COLA is eventually restored. It’s an obligation for the state to bring Prop. 98 back up to that at some point. If they actually give zero, it’s never restored.”

The bottom line here appears to be as follows. First, the uncertainty of the budget situation is probably worse than the actual budget. But if the current proposal is the best case scenario, we are not going to have a good time this spring.

Second, the district is in far better shape than last year. I will say that members of the Davis Schools Foundation were at the meeting. They will be working hard again to raise money, but it is a very different economic climate than a year ago.

Bottom line, it looks like no matter what, the district will be fine this year as long as the state does not start giving schools IOUs. If they do, I do not know what happens. It would be devastating. Hopefully we do not find out what happens. Next year, it looks like if the state gives the districts categorical flexibility, and if the state perhaps cuts the number of school days by five (which is not a good thing but perhaps necessary), the district should be able to use that $4.4 million to soft land us. If that scenario pans out, then we can plan for another $2 million for 2010-11 and hopefully get us through this crisis relatively unscathed.

However, that rosy scenario depends heavily on the state getting a budget passed and fixing the $40 billion hole before it gets worse and it depends on them not defaulting on money to schools.

---David M. Greenwald reporting

Target TCP Update Agendized for January 16 City-County Two-by-Two

Representatives from the City and the County will meet on January 16, to discuss among other issues, the issue of TCP that was found in test sites around the Target Superfund site. To date, the EPA has dismissed community based calls for further testing before construction begins at their site.

The City-County will have their 2-by-2 meeting on Friday January 16, 2009 at 9 AM in the conference room at the Davis County Office which is located a block from City Hall at 600 A Street. The item on Target and the issue of the TCP has been agendized for discussion. The 2-by-2 consists of two members from the Board of Supervisors and two members from the City Council. That will be the two Davis Supervisors, which means that this will be newly installed Supervisor Jim Provenza's first 2-by-2. Mayor Ruth Asmundson and Councilmember Don Saylor represent the city.

For some reason the agenda for these meetings is not readily available from the city. This is a public meeting and the public under the Brown Act ought to be informed about it. Thus there is no posted information on either the City's webpage or the County's webpage. It would be interesting to see where the meetings are posted and whether the city and county are in compliance with the Brown Act regarding posting and announcing such meetings. Regardless, even if this is within the letter of the law, it certainly seems to break the spirit of the law.

Here's a letter from Congressman Mike Thompson who seems unconcerned about the problem--further illustrating why it was a good thing that he was not selected as Secretary of the Interior.

Thank you for contacting me regarding elevated levels of trichloropropane (TCP) found at the 2nd Street construction site of the Target in Davis. I appreciate you sharing these concerns with me.

Rest assured that I am aware of the discovery of TCP at the construction site and agree that public safety - for residents, construction workers, future employees and shoppers - is of the utmost concern. I have been in contact with the Environmental Protection Agency (EPA) and the City of Davis about the concerns that have been expressed to me and I will continue to follow the issue. The EPA has explained that no contamination has been found at the building location and that the high concentrations of TCP are at the neighboring disposal basin and should be addressed soon as part of the final cleanup of the Superfund site.

Presently, remediation in the form of gravel/vapor barriers and air sampling is being conducted regardless of construction activity. Additionally, the EPA has an enforceable agreement with Target should more aggressive containment measures prove necessary. A strong EPA agreement with a responsible partner willing to conduct monitoring and remedial action as necessary is crucial to mitigate the risks from contaminants over the long term. For its part, the City of Davis has significant experience in managing matters of soil and groundwater contamination, most notably at the Fifth and G Streets site that now houses the US Department of Agriculture.

Again, thank you for your concern and vigilance on this issue. Please continue to contact me on all issues of importance to you and our district.

Sincerely,

MIKE THOMPSON
Member of Congress
http://www.mikethompson.house.gov

The problem that residents of Davis face at the moment is that the City Council has very limited jurisdiction over such matters. This goes back to the issue of Agraquest and possible health threats the community might face from environmental contamination at their Kennedy Place site. The city has limited ability to act on such things.

The county is far better situated on both issues to deal with it. However, the County Health Department summarily without investigation dismissed concerns about Agraquest, and now it appears they have done little with regards to the potential threat that residents adjacent to the Superfund site may face from exposure to TCP.

On Monday, the Sacramento Bee reported:

"The chemical has previously been found at the neighboring Frontier Fertilizer Superfund site along Second Street, near Interstate 80 and Mace Boulevard.

But nearby residents are now concerned it may be migrating northeast under the Target site, toward their homes."

Bonnie Arthur, the EPA Superfund project manager said the following:

"The chemical is known to cause cancer, she said. But she said it does not threaten the city's drinking water supply, which is drawn from deeper wells. "Nobody's drinking this water," she said."

However, members of the Frontier Fertilizer Superfund Oversight Group are not so sure that it is not a threat to drinking water if it continues to move and begins to leach into wells that lie at a deeper level.

The question is where is the county on all of this? They have a health department and they have the power to investigate these matters independent of the EPA. If this represents an actual health threat, it would seem that the county should step in.

But in both this and the Agraquest issue, the county has been silent.

It remains to be seen if a more aggressive Supervisor like Jim Provenza might be able to change some of this. January 16, 2009 will be a very important meeting on this matter, and residents concerned about this issue should try to attend, even though the meeting is happening during the work day when working people will have difficulty attending.

---David M. Greenwald reporting

Gottschalks Potential Bankruptcy Concerns City

The headlines from a few days ago was that Gottschalks is likely to run out of money by the end of the month. Where does that leave Davis which has had a Gottschalks store in the University Mall since 1999? Well Gottschalks is currently the only department store in Davis. And with Mervyn's going bankrupt and liquidating its stores, it may be the end of the line for such mid-range stores that are stuck between the low-line big-box retail stores like Target and Wal-Mart but a step below the higher end stores like Nordstrom's or Macy's.

This would be particularly bad news for the County Fair Mall in Woodland. Target has moved from that Mall to the larger location off Road 102 by Costco. That move was planned, but now coincides with the loss of Mervyns and now it appears Gottschalks.

The impact for Davis is not good either, according to economic development director, Sarah Worley who told the Davis Enterprise yesterday:

"The city is gravely concerned about the difficulties the Gottschalks company is having and any possible closure of the Davis store. The store is a valuable community amenity as an important anchor for the University Mall shopping center, in meeting local shopping needs and for its generation of sales tax revenue. The city is seeking more information about the situation for the Davis store and will continue to monitor its status."

And yet that location, in a way hidden in the back of the Mall, in a very small store, has never been that great for Gottschalks.

Most interesting perhaps is the fact that one of the culprits in the downfall of stores like Gottschalks is the rise of big-box retail.

"The last few years have also been grueling for many regional mid-range retailers around the country, which have had trouble competing against national big-box discount stores like Wal-Mart and high-end department stores like Nordstrom's."

The irony is that the city laments the loss of a store but their policies paved the way for its demise. The fact of the matter is that even under better circumstances, Gottschalks was probably doomed in Davis the moment that Target was allowed to come in. When all things are even, a store like Gottschalks probably was going to have trouble competing against a Target. But things of course were not even.

Gottschalks was stuck in the back of a small location, with a small inventory. Target would be able to severely cut into their market in Davis. The end of Gottschalks is probably coming a bit faster because of the economic downturn, but it was probably inevitable.

Undoubtedly reactions to this will be mixed. For people like me, I get a good percentage of my clothing at Gottschalks--you can purchase decent but still affordable clothing at its locations. Its loss would leave Davis without a department store. To me, Target does not fill that void, although I suppose it does people a place to get cheap clothing.

In the end, the question will invariably be who else is going to become a culprit to Target. Are we going to lose a number of smaller chain stores? Are we going to lose a number of locally owned stores? Is Target coming to town going to reduce our shopping options rather than expand them? Is it going to force the city to bring in other big-box stores to compete if the city wants to have a variety of options rather than be a one-shop town?

These are all questions that have been pondered for quite some time, but given the economy, given the precarious nature in which a lot of merchants are living these days, the threat is becoming even more real right now. Target is about to pour their foundation and then we will see what the real cost of bringing in Target to Davis is. The timing probably couldn't be worse given the shape of the economy. Many places that might have survived in better economic times will probably see this as their death knell.

---David M. Greenwald reporting

Vanguard Radio Tonight

At 6 pm tonight on KDRT 95.7 FM, we will have Andrew Donohue from the Voice of San Diego.

In mid-December we ran a story highlighting the rise of independent investigative reporting.

The Voice of San Diego was featured in a November 18, 2008 NY Times article on the same issue.

We'll be talking about investigative reporting and the rise of new media.

You can listen on the net at kdrt.org

One Hundred Muslim Students Flood City Hall Demanding Resolution on Peace in Gaza

At just after 6:30 pm on Tuesday evening, almost immediately after the Davis City convened their regular agenda, a group of at least one hundred mainly Muslim students flooded community chambers in Davis, quietly and politely holding signs urging action on what has now been over a week long war in Gaza that has seen hundreds killed.

During public comment, one-by-one, the students spoke out about what they saw as atrocities of innocent women and children and civilians being killed by military action by the Israeli army.

Their message was simple--they want the violence to stop. They recognize that the city council cannot do a whole lot, but they want the council to write Senators Boxer and Feinstein, Congressman Mike Thompson, and most of all President-elect Barack Obama and ask them to do what they can to make the violence stop.

With literally dozens of students wanting to speak but a long agenda ahead of them, Mayor Ruth Asmundson tried to cut off public comment after 15 minutes. This clearly angered and frustrated the students, but also some of Asmundson's council colleagues.

Councilmember Stephen Souza explained to them that they could only listen to them this evening, they could not take action on anything by law. They would at the end of the meeting be able to discuss putting a resolution on the agenda for next week however.

When Mayor Asmundson attempted to cut off speaking however, Councilmember Sue Greenwald interrupted with a point of order. After brief discussion. Councilmember Lamar Heystek moved to allow the students to speak for an additional 15 minutes. Councilmember Greenwald seconded the motion and they were joined by Councilmember Souza in a 3-2 vote to continue public comment.

An additional 10 to 15 students spoke in that time. Many of them were in fact Palestinian. Some of them still had family and friends there. One pointed out that more Palestinians have been killed in this operation in the last week and a half than Israelis have been killed in total for the last seven years (and frankly it's probably longer than that). The Israelis have used ongoing rocket attacks to justify their operation, but the response has been disproportionate to the threat. Palestinians, many of them innocents, are now trapped in Gaza, unable to leave and unable to stop the killing.

The students pledged to return next week and to continue to return until the council passes a resolution to write a letter.

During the long range calendar discussion at the end of the council meeting, Stephen Souza moved and Councilmember Heystek seconded a motion to put a resolution on the long range calendar. It was supported unanimously. Councilmember Greenwald recommended a subcommittee work with the students to draw up an appropriate resolution.

I spoke very briefly at the very end of the meeting to recommend to the council that their message deplore all violence--violence against the Israelis and violence against the people of Gaza. It was agreed.

Last week, I expressed my views on the situation in Gaza. Frankly, it has gotten worse since then. I oppose all violence and believe in non-violent means to resolve conflict. To me, Hamas perpetrated wrong by launching rocket attacks on Israeli cities, however, Israeli response has been completely disproportionate.

Moreover, I believe in democracy, small d. I think it was wrong to try to cut off discussion last night and I applaud the three members of council who extended the length of public comment. There are times when the council needs to allow segments of the community to speak. It was telling during the discussion on wood burning stoves, that two members of the public spoke and applauded the students for their activism, regardless of whether or not they supported their exact cause. It definitely made an impression on members of the public who were there for another issue.

Finally, many have complained about the council's use of resolutions on matters that do not directly impact them. What became clear Tuesday night was that the council in many ways serves as the point of first contact for aggrieved citizens. For the students it was their outlet to express themselves, to give themselves a voice, to enfranchise themselves in a way that without that vehicle they would not be able to directly access their government. From that perspective, perhaps we need to look at the city council a bit differently. They do not have direct say over other branches of government, but they are in many ways people's points of access along with their representatives in Congress and the Senate.

It was a valuable lesson in civic activism that all could learn from and it was unfortunate that one of the lessons they learned was that some were trying to silence their voices, not out of malice but because there was a heavy agenda this evening. I applaud the three members of council who voted to give the students a voice for an additional fifteen minutes. I spoke with the students afterward and it is clearly very important to them. Their persistence and willingness to petition their local government on issues that affect them, their families and friends is impressive and gives me hope for young people who will be running our government in the future.

---David M. Greenwald reporting

Council Wants To Study Wood Burning More, Will Revisit Recommendations in April

Dr. Tom Cahill has been working with the city since October on establishing guidelines for wood burning that will be based on solid scientific foundations that enable people's health issues to be addressed while at the same time respecting people's rights to the fullest extent possible.

The city council last night heard from a wide variety of experts, many of whom have been in countless hours on the issue of wood burning.

In the end, they adopted Dr. Cahill's measured approach. What Dr. Cahill recommends at this point in time is that given the fact it is already January, the city is not going to implement any new policies this burn year. So at this point, why rush the decision?

His view is that whatever occurs, needs to be done based on the best science possible and since the scientific studies have not been conclusive as of yet, he urged the council to allow for the collection of additional data. It appears that data will take two forms. First, he has and is donating the use of two of his monitoring devices to the city. This will enable the city to have a centrally located monitoring device and one that roams.

There is concern by the citizens, the experts, and the council to determine what exactly is going on in the city. Many suggested the city not be treated as a one-size-fits all solution, that there might be parts of the city that are heavily impacted by smoke while others are unaffected. There is also the need to do more than just have two monitoring devices.

The second portion of a study will look at the impact of Sacramento's burn and no burn days to see how they impact particulate matter in the air. One thing that was noted is that much of Sacramento's air particulate matter is pollutants moving up from the San Joaquin Valley northward. In other words, they are having no burn days based on things that occur down south.

Dr. Cahill argued effectively that by moving the decision back to April, they will have more data at their disposal and can make a better informed decision.

Many members of the public came to speak on both sides of the issue. Those with health problems, once against laid out their concerns with wood burning. However, there were a large number of people who came forward in support of various compromises and ways to continue to burn.

One big issue that came up had to do with the phase-in toward EPA approved appliances and how that should occur. There was a general concern with cost to the consumer. The feeling was that if it was cost prohibitive it would discourage residents of Davis from upgrading and encourage them to rely on PG&E for their full heating needs. Moreover, many expressed the concern that regulations may be a moving a target. In other words, no one would want to invest in EPA approved appliances if there was even a possibility that the regulations would change and they would not be able to use the appliance that they invested a sizable amount of money into to purchase.

There were additional concerns raised about the practicality of six hour burn limits. First, from the standpoint of heating, you could not simply heat a home for six hours. Moreover, the difficulty in stopping the burning of wood makes it less than practical.

Finally, concern was expressed by staff and the public about how this would be enforced particularly if there are limits on types of appliances, length of burn, wind velocity, and other factors.

It was a good discussion. Members of the community with expertise on wood burning, including some in the commercial field, came forward to offer information and advice. It was one of the better discussions that I have witnessed before the city council.

In the end, council is moving forward on this in a measured and responsible fashion. They emphasized the need to implement policy based on hard scientific data.

Toward the end of the discussion, Councilmember Stephen Souza made a key point, he demonstrated the changes that have occurred in our understanding of health risks and practices. He cited for example in the 1970s, when the council met in the old City Hall, that people would smoke in council chambers. We would never see smoking in council chambers these days in part because of our recognition of the health impacts of second hand smoke and laws that prohibit smoking in public buildings. Moreover, now we recognize that even smoking near buildings can be a health risk. As our understandings of health impacts evolve, so too must our laws.

Councilmember Heystek made the further point that Davis is often on the forefront of these type of policies and we do not need to rely on what other communities are doing. We need to look toward Davis-centered approaches that fit our environmentally conscious community. Thus taking into account things like wind speed, taking into account that federal standards and state standards are minimum standards is an appropriate thing to do.

In the end, the council made the correct decision to wait until they had more data in order to do this correctly. One thing that was put into the motion was a provision to educate the community on this issue. That clearly needs to occur. I have been uncomfortable pushing forward with this without greater amount of citizen buy-in. I still think that the council, the NRC, and the experts are ahead of public opinion on this issue.

This is an issue that effects people in their home. One member of the community came up and talked about what an open hearth fireplace means to her. She described it as primal, the need for fire, likening it to the need to reproduce. She has regular picnics with her kids in front of the fire. She argued that the fireplace in her home was one of the reasons that she bought her home and she didn't want the fireplace taken from her. As she said this on the one hand, you could feel for her. On the other, you wonder what if this practice was actually putting her health and her children's health at risk without her knowledge. I would certainly like to do more research on these questions, but Davis is not the only community facing this issue. To some extent if Davis does not get out in front on this issue, the air management district will.

So last night, the council did the right thing given the timing of events , in holding off on a decision about wood burning. Clearly this issue is still a controversial issue in which the city needs to engage the community. The council now has a few more months to engage the community and hopefully they will use this time wisely.

---David M. Greenwald reporting

City Can Better Utilize Hunt-Boyer Mansion with a Restaurant

Back in December, the city council met to decide the future reuse of the Dresbach-Hunt-Boyer Mansion. Currently city staff are located in that building, however, they will soon be relocated to other city facilities and the city now has the choice as to how to use the building.

The city hired a consultant to do a feasibility study and consider reuse options which were narrowed down to a restaurant or a visitor's center. At the December 9, 2008 council meeting, the majority of the city council concurred with the staff report "that the visitor’s center concept is a better fit than a restaurant for this historic structure, as it would have the least physical impact on the building and would be far more economical to implement." However, in a compromise, Councilmember Stephen Souza constructed a motion that would allow the city to at least test the restaurant option.

Unfortunately by putting out a RFP (Request for Proposal) for only two months during these economic times may not be doing far enough in terms of actually allowing a potential restaurant owner to use the site.

The feasibility study identified a number of challenges with the proproposed restaurant.

The bottom line was:

"While the report acknowledges that the location is ideal for a restaurant and the building’s ambience would make for an elegant dining experience, the architect also determined that this use would require significant modifications and cost to accomplish."

Challenges include the following:

"The most logical place for the kitchen would be in the rear (southeast corner) of building with seating in the front rooms and upstairs. The typical restaurant would utilize approximately half of its square footage in kitchen space. The first floor is approximately 1330 square feet total. Loading would need to come from the rear (south) side of the building. The feasibility architect calls for an elevator inside the building. The Building Official believes that if similar spaces are provided on both floors an elevator could be avoided. The kitchen would need hood venting out the walls and roof of the building. A trash enclosure and grease storage/inceptor would need to be added in the vicinity of the building."

As a result of these challenges and the costs associated with them, the city staff went with the visitor's center option.

From the staff report, here's the central argument for the Visitor's center information:

"Several entities, including the city’s Promotions staff, downtown redevelopment staff, the Davis Downtown Business Association, the Davis Farmers Market, the Davis Chamber of Commerce, UC Davis and the Yolo Conference and Visitors Bureau regularly interact and partner to promote the downtown and the broader community. Each entity has a distinct purpose and personality, yet functions often overlap.

The concept for a Community Events and Visitor Information Center is to consolidate as many providers/promoters of community events, information, and attractions in one location. Ideally, a consolidated location would provide information about events, attractions and lodging; maps of the community and campus; a calendar of events; a small retail section of Davis/UC Davis/Yolo goods; ticket sales; and offices for the several of the organizations primarily responsible for promoting Davis. Unlike the traditional visitor’s center model, this co-location of Davis resources would serve as a central resource for Davis residents seeking information/tickets for local (City/Campus/County) events in addition to being a location for visitors to the community to get information. The benefit to the groups in the building would be shared resources and information, resulting in more efficient use of resources and successful collaborations. The benefit to the city would be increases in participation in local and regional events and spill over business activity."

From our standpoint, the Visitor's Center makes little sense in this particular location. The idea that these entities have shared functions is acknowledged, but that doesn't seem to require (a) the same location and (b) more importantly this particular location.

The visitor's center might be utilized by people who come from out of town to visit Davis, perhaps, but a restaurant would attract people not only from the city but also from out of town. Moreover, a restaurant would bring much needed tax revenue to the city.

While we acknowledge the current limitations of the building, the city actually has a pretty decent option in terms of making the upgrades necessary. The city estimates such costs would be between $750,000 and $1 million. However, due to the much higher rent the city could charge a restaurant as opposed to office usage they could offset those costs over a 10 to 15 year period by taking around 80% of the rent and paying off the costs while using 20% as the revenue the city would get from a visitor's center.

The restaurant has much to offer Davis. It seems a shame frankly to waste such a nice and attractive location on more offices. A high restaurant could provide fine food and dining experiences that Davis lacks at the moment. Moreover, if done properly the restaurant could have a more modest lunch menu that would cator to the university crowd during the day. The location could allow for both food and some sort of entertainment as well.

The city appears to be selling its property short by going for the quick fix in terms of a visitor's center. However, and this is part of the issue at hand, the city would need to be patient in terms of finding the proper suitor given the current economic downturn. However, the upside would be enormous and it is not like the building is being properly utilized at this moment.

The model would be to look at something like Bistro 33 and imagine the amount of revenue and the dining experience an upscale restaurant would bring to that part of Davis while adaptively reusing an historic building.

To me, the choice seems obvious, but the council to this point in time seems inclined to go another direction.

---David M. Greenwald reporting

Coverage of Target Issue in Bee and Aggie Stands in Marked Contrast To the Enterprise

This morning residents in Davis wake up to more coverage of the Target issue. However, in marked contrast to the article two weeks ago in the Davis Enterprise, the Sacramento Bee and California Aggie present largely balanced arguments weighing the concerns of the local citizen's groups against the stance of the EPA.

On Monday December 22, 2008, the Vanguard broke the news that local group, Frontier Fertilizer Superfund Oversight Group (FFSOG) was concerned about the discovery of new detection levels of TCP at the Target Superfund site. The group was asking for new testing before Target was set to lay the foundation for the new store on January 5, 2009 (coincidentally today).

The following day, the Davis Enterprise was downplaying this story running an article entitled: "Toxics won't impede Target: New contaminant deemed low-risk," in which EPA project supervisor Bonnie Arthur completely downplayed any risk of the project. [Note I tried to link to the original article, but the Enterprise has already removed it from their website].

Claire St. John of the Enterprise writes:

The discovery of the pesticide isn't surprising. It was first detected at the Superfund cleanup site west of where the new Target will be built. TCP was first discovered in 1983, after the Environmental Protection Agency began cleaning up a site where the former Frontier Fertilizer company dumped pesticides in unlined pits along Second Street.

'It's not a new discovery of contamination,' said Bonnie Arthur, project supervisor for the EPA's Superfund Division. 'It's a slightly different area than what we've seen before. It's a little bit further to the east. It's not unexpected in terms of what we know about how this chemical moves around in the subsurface.'

...

'We'll probably have to install some additional monitoring wells just to investigate it further,' Arthur said. 'But it's not something that's a showstopper to us in terms of the Target development.'

'We have an enforceable agreement with them, so if we had to, we'd drill through their slab,' Arthur said. 'We've done it before. We're not going to ignore it, but we don't think there's any health risk. Nobody's drinking the water.'"

Sacramento Bee and California Aggie Present a Very Different Story

In this morning's California Aggie, Jeremy Ogul as promised two weeks ago, writes an article that is quite balanced. "Citizens' group wants Target project to wait: Group concerned about discovery of toxic chemicals below ground."

He writes:

"As construction workers prepare to pour the foundation for a new Target store in Davis, a citizens oversight group is sounding the alarm about a recent discovery of a hazardous substance nearby.

Recent groundwater samples from an area 100 feet east of the planned location for the Target building revealed the presence of trichloropropane (TCP), a synthetic chemical that the U.S. government considers a hazardous substance.

The samples were taken on the Target property, which sits directly east of an EPA Superfund cleanup site on Second Street in East Davis. The Superfund site was established after the Frontier Fertilizer company illegally dumped pesticides and other chemicals during the 1980s, contaminating soil and groundwater in the area.

Pamela Nieberg, president of the Frontier Fertilizer Superfund Oversight Group, sent a letter to the Environmental Protection Agency requesting more investigation into the discovery."

Pam Nieberg who heads FFSOG is then quoted:

"It is an issue of determining the extent and probable source of the TCP contamination, possible health impacts in the neighborhood and how to remediate if necessary... "Once the slab is poured, that sampling will be difficult if not impossible."

It is only after introducing the group's concerns that the Aggie presents the EPA's view:

"EPA officials said they did not believe the discovery was enough to stop the Target project from moving forward.

"While it is our intention to further investigate the TCP found in this area, we believe that this additional investigation can occur either before or after the Target store is constructed," said EPA project manager Bonnie Arthur...

In a letter to the oversight group, Arthur noted that TCP has only been found in two of 40 groundwater sample locations on the Target property, neither of which were at the location of the building itself..."

Sacramento Bee Coverage Likewise Much More Balanced

Hudson Sangree of the Sacramento Bee this morning writes an article entitled: "Davis residents wary of Target store near toxic Superfund site."

The first two graphs present both sides of the issue:

"Construction of a Target store in Davis won't be delayed by the discovery of a hazardous chemical from a nearby toxic site, according to an official with the U.S. Environmental Protection Agency.

But as crews get ready to pour the store's foundation, neighbors say their children's health should not be jeopardized to make sure a Target store gets built on schedule. More time is needed for testing, they say."

The Sacramento Bee then quotes, neighbor Deb Westergaard:

"Let's find out what's going on instead of putting the neighborhood at risk."

Then we get into the EPA's position:

"On Friday, EPA Superfund project manager Bonnie Arthur sent a letter to the head of a citizens' group saying the discovery of TCP was a matter for further investigation but should not push back Target's construction timeline. "We believe this additional investigation can occur either before or after the Target store is built," she wrote. The chemical does not pose an immediate danger, she said in the letter. "We have not found TCP concentrations that present a current health risk to the community," Arthur wrote."

However, Mr. Sangree continues to contrast this issue against the backdrop of resident concerns.

"The chemical has previously been found at the neighboring Frontier Fertilizer Superfund site along Second Street, near Interstate 80 and Mace Boulevard.

But nearby residents are now concerned it may be migrating northeast under the Target site, toward their homes.

For decades, the eight-acre Frontier Fertilizer grounds were used to store and mix pesticides, herbicides and other chemicals."

Back to the EPA's viewpoint:

"Arthur told The Bee that TCP is "a contaminant we've been tracking at the site for 10 years." The chemical is known to cause cancer, she said. But she said it does not threaten the city's drinking water supply, which is drawn from deeper wells. "Nobody's drinking this water," she said.

Representatives of Target Corp. could not be reached for comment Friday.

Davis city officials say the company's construction team is planning to pour the big-box store's concrete slab in the next two weeks."

And finally back to the concerns by Ms. Westergaard and also Pam Nieberg:

"Residents argue it would be worth delaying for a month or two to determine the extent of the risk and what cleanup is needed. There is a new park nearby, and many families with young children live in the Mace Ranch subdivision.

"If it wasn't that Target was pushing to pour its slab, I think (the EPA) would be taking more time," Westergaard said.

Pam Nieberg, a community activist in Davis, serves as the liaison to the EPA for the Frontier Fertilizer Superfund Oversight Group. The group, which employs a technical adviser, is part of an EPA-funded program to involve residents during the cleanup of superfund sites. She wrote to Arthur in November urging the EPA to conduct further sampling "to determine the extent and source of the TCP contamination prior to further construction at the Target site."

...

Nieberg said she isn't trying to stop it from being built, but thinks a brief delay is reasonable. The TCP found at the Target site was outside the prior boundaries of the cleanup area and may be flowing northeast, toward homes, she said. "It's out there moving in the groundwater," she said.

Samples were 3,000 times the level that requires a safety notification, she said. Nieberg said she was concerned the TCP could "gas up" into homes. In the air or water, the chemical can cause eye and throat irritation. Target, Nieberg said, was planning to protect its employees and shoppers by laying down 4 inches of gravel below the store and a plastic vapor barrier. Pipes will vent the chemical from the ground into the air, she said. She said the extent of the contamination should be known before construction starts. "We wanted them to look for (TCP) first," Nieberg said. "Once you've poured a big concrete slab, it's going to be hard to do testing." "

It is instructive to note the difference in both of these articles which give resident and group concerns equal weight to the EPA's denial that this is a serious problem. There is concern attention given to the group FFSOG and Pam Nieberg.

In the Davis Enterprise article, the title and the tone led to the conclusion that this was not a problem. The views of Pam Nieberg were presented in a brief fashion and buried in the middle after the concerns were fully quelled by the official position of EPA supervisor Bonnie Arthur.

In the Sacramento Bee by contrast, the views of both were interspersed throughout the article. Both views were presented in the first two paragraphs and then given equal weight through out.

This is in fact a balanced article. The Enterprise article stands in stark contrast to the approach given in both the Bee and the Aggie this morning.

An interesting example appears even in the quotes of Bonnie Arthur by the Davis Enterprise versus the Sacramento Bee.

The Davis Enterprise quotes Ms. Arthur:

"We're not going to ignore it, but we don't think there's any health risk. Nobody's drinking the water."

On the other hand, in the Sacramento Bee, in virtually the same quote, Arthur acknowledges that TCP is known to cause cancer, but she still downplays it.

"The chemical is known to cause cancer, she said. But she said it does not threaten the city's drinking water supply, which is drawn from deeper wells. "Nobody's drinking this water," she said."

To me both of those statements give me very different reactions. In one case, they really do not believe there is anything to be concerned about. But that changes in the second statement quoted in the Sacramento Bee. The question becomes in the second quote--is it really true that "nobody" is drinking the water and that the water that is contaminated is not someone leaching into the city's wells. And if the plume is moving, how does the EPA know for sure? These questions only arise due to the Sacramento Bee's coverage which acknowledges for the first time that the chemical is known to cause cancer.

Had the Bee article been printed in the Davis Enterprise on the 23rd of December, the Vanguard likely would not have had to run a follow up story on the 24th criticizing the Enterprise and trying to set the record straight by showing the EPA's poor track record under the Bush administration.

---David M. Greenwald reporting

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