Public Defender Melton is Off The Topete Case, Should He Be Out as Public Defender?

Public Defender Barry Melton officially removed himself yesterday from the case of accused Sheriff's Deputy killer, Marco Topete. Officially it appears we do not know the nature of the conflict of interest.

Barry Melton was immediately replaced by Hayes Gable III of Sacramento and Tom Purtell of Woodland. The defendant is in excellent hands with two lawyers experienced in capital murder cases.

However, Barry Melton's departure from this case leaves more questions than answers. Both of which are hinted at by an excellent article in the Woodland Daily Democrat on Friday morning.

In it, it chronicles the relationship between Barry Melton, Sheriff Ed Prieto and Judge Dave Rosenberg.

According to the article by Daily Democrat Staff Reporter Luke Gianni:

"Topete's wife, Angelique Topete, told the Democrat Thursday she witnessed an argument between [Deputy Public Defender Dean] Johansson and Melton last week at their office in Woodland days after Melton filed his motion.

She said Johansson was concerned over the political connections Melton shared between Yolo County Sheriff Ed Prieto and Rosenberg."

The article goes on to quote Mrs. Topete:

"In the process of Dean doing his investigation, he dug up a lot of stuff between Melton, Prieto and Rosenberg and that pissed Melton off."

The bottom line here is that the Daily Democrat dug up--what many of us have known for a long time--the fact that there is a strong relationship between Barry Melton, Ed Prieto, and Dave Rosenberg all of whom hang in the same Davis political circles and all of whom have contributed money to each other's campaign.

The Democrat continues:

"According to county election records obtained by the Democrat, all three men have contributed funds to each other over the last 10 years as their political careers have progressed.

Ed Prieto's political action committee "Citizens for Ed Prieto," received monetary contributions totaling around $600 from Rosenberg's political fund starting in 1998 when he ran for Sheriff up and until his last contribution in 2003.

Records also show Melton contributed a little more than $300 to Prieto's fund from 2000 to 2003.

As for Rosenberg, his "Friends of David Rosenberg" fund has received more than $150,000 in political contributions over the last decade before morphing into the "Judge David Rosenberg Committee," which was formed in 2003 during his run for a judicial seat.

From 1999 to 2003, Melton had contribute[d] more than $900 to this fund, records show.

The monetary ties between the judge, the attorney and the organization that employed the man her husband allegedly killed, has Angelique concerned over his chances at a fair trial."

The Democrat then brings in Judicial ethics expert Carol Langford, an adjunct professor at UC Hastings Law School. She told the Democrat that the political contributions did not mandate withdrawal from the case, but she also suggested a "voluntary step down to assure the public the case is being handled fairly."

"What I would say is you probably want to give that case to one of your panel people. You want to make sure that everyone is doing a good job and that there's the appearance that everything is fair and just. It's important that people think they're getting a fair shake especially in a small town."

So is this the reason that Barry Melton is recusing himself from the case? If so, there are more serious problems on the horizon. If he must remove himself from this case, does he then have to remove himself from every case involving Judge Dave Rosenberg? Does he have to then remove himself from every case involving the Sheriff's Department? Right there, that's a lot of cases? Did he also support Judge Tim Fall in his reelection bid this past June? Would he have to remove himself from any cases involving Judge Fall as well, if he did support his reelection?

But that is just the tip of the iceberg. The real kicker is that the Democrat did not complete the circle here. Back in 2006, there was a rather heated battle for District Attorney between fellow deputies Jeff Reisig and Pat Lenzi. Jeff Reisig eventually won that race by a rather narrow margin. Barry Melton did not formally endorse Jeff Reisig but behind the scenes he was a powerful advocate for Reisig and frequently attacked Pat Lenzi.

There's of course more to this than just that. Barry Melton did not himself donate to Jeff Reisig's campaign, but his wife, Barbara Langer did. The Democrat probably did not know to look for contributions to Jeff Reisig from Barry Melton's wife, but the support from Melton to Reisig is well known.

If indeed the reason that Barry Melton withdrew from this case had to do with the close political relationships here, then it calls into question Barry Melton's entire position as public defender. As such a political animal to begin with, perhaps Barry Melton is not the person best suited for this position.

This is all unfortunate for the family of the slain Sherrif's Deputy but also the Topete family that is entitled to a fair trial. Last week, members of Topete's family wanted Dean Johanson, whom Marco Topete trusts, to stay on the case. Now it appears that Barry Melton's entire office will drop out of the case.

The good news from Topete and for Yolo County is that he is in very capable hands. He was assigned first class defense.

But as this entire saga has shown, there are serious cracks in the Yolo County Justice System's foundation. The public defender as many have known for some time, seems to be right in the middle of the problem.

---Doug Paul Davis reporting

Vanguard Loses Efforts to Get Email Through Public Records Act

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

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

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

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

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

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

The city argued:

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

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

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

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

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

To this point, the city argued:

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

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

As Don Mooney wrote in the response brief:

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

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

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

In a four page ruling, the Judge wrote:

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

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

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

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

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

---Doug Paul Davis reporting

Mayor's New Policies: Cutting Off Debate

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

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

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

For her part, the Mayor told the Davis Enterprise:

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

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

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

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

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

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

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

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

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

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

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

In the article it states that:

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

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

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

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

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

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

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

Jean Jackman:

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

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

“Also the scheduling of these issues… to have a controversial issue like the general plan update, which was affecting the entire community, to schedule it at 5:00, when people like myself have to take off from work to get here… This is not what our city is about. Davis is supposed to be a model of democracy.”

The Mayor's response to those complaints:

“Let me just talk a little about the public comment… At first this was supposed to be just a workshop. But we decided to put 15 minutes for those to speak that couldn’t make it to public comment at the regular meeting. If there are needs to have more discussion we’ll have it at the end. What I’m trying to do here is trying to juggle conflicting demands. Some council members don’t want to have too long meetings. Some council members don’t want to have that many meetings. But we are trying to make sure that we are having a healthy public engagement. And we’re going to be looking into how we can do that. The fifteen minute rule, if we have to go on, we have business to take care of. The council met at five o’clock, we have other business to do. I wanted to make sure council had an opportunity to have dinner before too long. And so that’s why the fifteen minutes.”

Councilmember Lamar Heystek asked for a future meeting to discuss some of the operating procedures. He was concerned about council communications being so late in the hour under the new policies.

Councilmember Sue Greenwald also disagreed with the new policy limiting public comment to fifteen minutes.

“I share the concerns that a number of the members of the public had. For example, when you said that initially you were going to have a workshop without any public comment, we always, when we discuss any item, have always had public comment. It’s been understood that it is not something that is at the discretion of the mayor.”

She continued:

“I personally feel that limiting public comment is a huge mistake in terms of time. There’s been very few times when public comment really is very long. And when it does, it’s usually because there is a room full of young children who want to keep a hockey rink open or something. And you’re not going to want to cut them off. I guarantee you. And it’s going to look very bad when you let them talk for a half an hour but you haven’t let other citizens talk for over fifteen minutes. It will look arbitrary and capricious.”

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

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

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

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

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

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



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

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

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

---Doug Paul Davis reporting

Vanguard Report: Examining Reimbursements to Davis City Council

Councilmember Don Saylor spends more city money than the rest of his colleagues combined

The City is allowed to reimburse City Councilmembers for expenses incurred while on official duty to the city. Often this takes the form of travel expenses to conferences while a council member is representing the city. AB 1234 at the state level governs much of this.

The Vanguard made a public records act request for the city to disclose all reimbursements to Davis City Councilmembers for 2004 until the present. The findings here are interesting, but please do not read too much into them.

Nevertheless, the findings here are more interesting than one might first think.

[Click here for full listing of reimbursements]

The council over that four and a half year period has spent a grand total of $10,406.92 combined between the five members. Clearly this is neither a large city expense nor is there much to suggest a problem.

However, one councilmember spent more than the other four combined and nearly four times more than the next closest councilmember. That was Councilmember Don Saylor.

The vast majority of those expenditures are for attending league of California City Meetings. In fact, that is the majority of everyone's expenditures.

However there are a few of Councilmember Saylor's non-travel expenditures:

• In 2004, $378 for Reimbursement for Comcast Interviews
• In 2005, $100 for DHS Jazz Group Fee
• In 2005, $150 for Music for Oeste Manor
• In 2007, roughly $150 for three expenditures for T-Shirts with the City Logo

These are mostly small amounts, although the reimbursement for Comcast Interviews is somewhat interesting.

The other interesting finding was the spending of Councilmember Lamar Heystek. Remember Councilmember Heystek was elected in 2006, and so his figures are a two-year total and yet, he is just behind Mayor Asmundson with just over $1500 in expenditures.

If you look down his list, you see a number of payments for what appears to be his internet service--either DSL or later on, Comcast. I inquired at the city and they informed me that paying for internet is one of the few perks provided to city council members, however, only Lamar Heystek had taken advantage of that offer. And it makes sense given his personal financial situation.

I asked Councilmember Heystek about it on the record.

"Thanks for asking. I'm glad you're looking into councilmembers' expenses. The Internet is the main way I connect with City staff and constituents. I also use my personal cell phone (not my City-issued Blackberry); however, the City does not cover any of my telephone costs."

The expenditures for internet run roughly at $42 per month for a total of about $900.

Again, we are talking about a total $10,406.92 so it is difficult to draw much in the way of conclusion other than perhaps one councilmember has traveled much more on public expense than the other four combined. I am not sure there is much to be concerned about (not everything we report on has to be a major scandal); however, I did find it interesting to look at.

The Vanguard has been reporting on public records this week relating to expenditures and fiscal policy, stay tuned to future installments.

---Doug Paul Davis reporting

100K Club of Davis

PARTIAL LIST--Click here for the full listing

The Vanguard introduces the 100K Club of Davis. A listing of those Davis city employees who earned in 2007 over $100,000 in salary and overtime. This list does not include benefits in it. Once again these records were obtained via a Public Records Act request from the city of Davis.

One of the striking features of the 100K Club of Davis is that the city employee who earned the most money last year was not City Manager Bill Emlen but rather Fire Captain Richard Moore on the strength of over $77,000 in overtime wages. The only other non-public safety official in the top 10 was Parks and Community Services Director Donna Silva.

In all there are 61 members of the 100K Club of Davis from 2007. 48 of those were public safety employees. Of those 38 were firefighters.

This fact becomes more startling as we breakdown the top average salaries by department.

Here we see that the Fire Department has the top average base salary at $88,555 followed by the City Manager's office. The Police Department by contrast is fourth and just higher than the average city salary. Parks and Finance are the two lowest compensated departments in the city followed by the Public Works Department.

However, this graph does not tell the full story. The real story emerges when overtime wages are factored in.

Here we see the full magnitude of the current salary system. The Police Department benefits somewhat by the overtime system however, nothing compared to the Fire Department. With overtime factored in the average employee in the Fire Department out earns the next highest the department, the City Manager's Office, by over $35,000. The Fire Department makes just under 50% more than the next highest department in the city. And, the average worker for the city does not benefit much from overtime rules. The average wage only moves from $63.1 to $67.9K when overtime is factored in.

In all, the city paid out just under $2 million in overtime wages in 2007. One of the open questions is whether and at what point it is more cost effective to simply hire more employees rather than paying for the current employees time and a half to work overtime. Factored into that equation is the difference between overtime pay from regular wages versus the amount the city would have to pay in additional benefits and retirement to additional employees. However, on the surface, it would appear the city might be able to hire an additional 10 to 15 employees for what they are paying overtime.

This is the second in a series of Vanguard reports on the fiscal state of affairs for the city of Davis.

---Doug Paul Davis reporting

Vanguard Report: City of Davis Employee Salaries Rise Far Faster Than Tax Revenue

Through a public records request to the City of Davis, the Vanguard has obtained data that show from fiscal year 2000-01 through 2007-08 that city employee salaries rose far faster than the city's tax revenue.

Total compensation to city employees rose from just over $27 million in 2000-01 to just under $50 million in 2007-08, which is an increase of $21.7 million over an eight year period. At the same time, tax revenues only increased by $6.2 million from $18.3 million to $25.2 million.



While employee salaries increased by 50% of this time period, benefits nearly doubled, and retirement pensions increased by over five fold. Retirement pensions rose from $900,000 in 2000-01 to $5.8 million.

A large amount of these increases have come to upper management within the city rather than the rank and file employees. On Tuesday the Vanguard plans to breakdown the city's 100K Club--those city employees who earned over $100,000 in 2007, almost all of whom are upper level management employees for the city of Davis.



These numbers call into question the city's long term fiscal health. While the council majority of Mayor Ruth Asmundson, and Councilmembers Stephen Souza and Don Saylor have maintained that they have balanced the budget with the requisite reserves, critics have pointed out that this comes from an unusually large amount of unmet needs. These, unmet city needs, such as road repairs and other projects have been put on hold and will likely cost the city more in the future.

To this point, the council majority has dismissed criticism that the fiscal climate is not nearly as rosy as it appears.

During the last city council election Councilmembers Stephen Souza and Don Saylor repeatedly claimed that the city had a balanced budget with a 15% reserve each year of their tenure. At the same time, the council has tacitly acknowledged the problem with discussions of possible sales tax increases, 911 service call tax, and possibly a public safety tax in addition to the recently passed Parks Tax from 2006.

Councilmember Lamar Heystek told the Vanguard:

"It is clear that year after year, tax revenue is becoming less and less sufficient to address rapidly growing employee expenses. In order for the City to improve its financial picture, we must take steps to control the costs of our highest-paid personnel so that the disparity between tax revenue and employee expenses does not continue to escalate."

One possible implication painted by this budget picture is that the city use employee salaries and their impact on the budget as rationale to find new ways to generate revenue in order to balance the budget.

As mentioned previously, new taxes are already being weighed by the council. However, for those concerned about the specter of new growth pressures, this might be part of the impetus behind the increased employee salaries. The city will look to generate additional revenue and that means possibly additional commercial development and more likely additional housing in an attempt to get short-term gains from development deals and longer-term gains from an increased tax-base. However, as previously pointed out, that only goes so far. With additional housing, comes also the additional need for services, which figure to be ever-the-more-costly with the high price of employees and their benefits and pensions.

This sets the stage for a potential tax-hike coupled with the need for more business. But there is a note of caution here as well. The new Target store for instance, is projected to bring in a rather lucrative $600,000; however, this is a drop in the barrel compared to the huge totals for salaries and pensions that the city is facing in the future.

Even more ominous, is the fact that many of the employees' contracts are up in 2009. As we shall see on Tuesday, a large number of those contracts go to public safety employees, in particular firefighters who donated huge amounts to Stephen Souza and Don Saylor's reelection campaigns. That likely means that Stephen Souza and Don Saylor will be in no position to say, “no” to future lucrative contracts.

Stay tuned this week for upcoming reports on the City of Davis' fiscal state of affairs.

---Doug Paul Davis reporting

City Clerk to Leave Davis for Job with City of Menlo Park

During Friday's traditional early morning August 1 City Council Meeting very little of substance occurred for the largely ceremonial meeting. By law, the city council must meet at least once each month. Normally they meet at least two and often more than three or even four times. However, during the month of August, the council takes its summer recess. So ceremonially they hold an early morning meeting on August 1, usually with an abbreviated calendar, although the last two years they had controversial discussions (West Nile Spraying in 2006 and a discussion on Land Deal with Steve Gidarro in 2007). This year the meeting consisted of two consent items. It was wrapped up in less than thirty minutes and the council is adjourned until mid-September.

The big announcement came from City Manager Bill Emlen who informed the council and the public that City Clerk Margaret Roberts was leaving the City of Davis to become City Clerk at the City of Menlo Park.

I am often critical of city staff. In fact, I would be hard pressed to think of anyone else I would write this for. However Margaret Roberts was an exception to the rule. In a city where getting information often feels like a battle and half the time I feel games are being played both with myself and with the public, Margaret Roberts was the consummate professional. She always did her job, she was always courteous, respectful, honest, and yes, professional. I am very sad to see her leave.

She was the access point to information about the city. All public records request, of which I have made dozens in the last two years, go through her. Only once did I ever have a problem receiving public records, and that was not the fault of Ms. Roberts.

Fortunately, not only was Margaret Roberts an excellent city clerk, she has an excellent support staff. The city is left in the very capable hands of Deputy City Clerk, Zoe Mirabile. However, I think I speak for many, Margaret Roberts will be sorely missed.

---Doug Paul Davis reporting

Parcel Tax Campaign Announces Two Prominent Davisites Have Been Named As Co-Chairs

The Vanguard received a press release from the YES on Measure W, "Yes for Our Students" campaign. It announced that Janet Berry and Judy Davis will serve as co-chairs of the Measure W campaign.

According to the release:

"Berry and Davis will be involved in the overall strategic direction of the campaign and its community outreach efforts. Janet Berry is a familiar and dedicated parent of children in Davis schools and Judy Davis is the just-retired principal of North Davis Elementary School."

Janet Berry is acting as a private citizen on this campaign. She heads up the Davis Schools Foundation which raised $1.7 million this year to rescue the Davis schools from huge budget cuts that would have forced many teachers to lose their jobs.

Judy Davis was a very well-regarded long-time principal at North Davis Elementary School and one of the most respected principals in the district. She just retired this year after returning for one additional.

Said Judy Davis:

“It has been my great honor to be associated with Davis schools for many years. It is the involvement of parents, volunteers and the extraordinary commitment of our entire community that has made Davis public schools what they are today. However, it is really important for people to understand that state funding for schools is dropping and that there is a genuine gap between the cost of educating our students and funds from the state. It is up to us to bridge the gap. At stake is the range of diverse educational programs that are offered today. Preserving quality will be determined by a vote yes or no on Measure W. It is really that simple.”

Said Janet Berry:

“The immediate future for education funding in this state is at best unclear. Additional cuts are likely but no one knows with certainty at this time. What we do know from our collective experience this past spring is that people in Davis care about children. They are committed to public education. And they are willing to support important programs and teachers in all our schools. What we learned during this period is that there is a structural budget problem in the District and we heard over and over that people expected a structural solution, like a parcel tax. That’s what Measure W is about and why I’m personally involved in the campaign. Voting yes for Measure W will provide the long-term protection for the classroom programs we saved this spring.”

School Board Member Gina Daleiden was very excited about the selection of Ms. Berry and Ms. Davis:

“Janet and Judy have both demonstrated extraordinary leadership in their commitment to Davis schools and protecting educational opportunities in our community. We are really fortunate to have them involved in our community effort.”

Measure W will be on the ballot this November. It will place an additional $120 per parcel per year tax on Davis Residents to fund core programs like the Elementary Science, Elementary Music, librarians, a few high school teachers, and the athletic program at the high school. Without these funds, DJUSD will be announcing once again potentially deep cuts to programs and teachers.

According to both polls from the District and the Vanguard this will be a very tough election to get over the two-thirds threshold required to raise taxes. Janet Berry and Judy Davis are excellent choices to help lead up what needs to be a very strong grassroots effort.

On Wednesday, the Vanguard Radio interviewed Former State Superintendent of Public Instruction Delaine Eastin. We discussed the parcel tax, education, and the implications if this measure does not pass. Please click here to listen to the podcast.

---Doug Paul Davis reporting

Coroner's Report on Taser Victim Answers Few Questions

The official report by Deputy Coroner James Andrade characterized the death of Ricardo Abrahams as accidental. He found no evidence of homicidal intent by the police.

Of course, that was not really a point in question. No one believed that the police deliberately killed a man by taser.

To make matters less clear, the man did not die directly from the taser, but rather suffocated while being restrained by the police. One witness said that Woodland police officers, "dog-piled" the man.

The cause of Abrahams' death was "positional asphyxia." According to a report in the Sacramento Bee this is a condition often that is associated with deaths that occur during restraint by law-enforcement officers.

"There are certain positions that cause you to expire." [Woodland Police Lt. Charlie] Wilts said. "The coroner's report doesn't say that police compressed Mr. Abrahams to death." Wilts said it is easy for those who weren't there to second-guess the officers, but it would be wrong to do so.

"Who am I to say Mr. Abrahams was not acting aggressively toward the officers?" he asked.

A key finding is that he had no drugs or alcohol found in his system that would lead him to be non-responsive. It was simply a matter that he was mentally disturbed.

Abrahams suffered from bouts of mental disturbance and acting on advice from his psychologist he checked himself into the Safe Harbor Crisis House in Woodland after suffering anxiety. He then walked away the next morning. The staff first called his psychologist. His psychologist described him as not dangerous and then the police were called but he became combative.

Police then hit him with batons and fired Taser guns three times in an attempt to subdue him.

Reaction to this report has been mixed. The Bee quotes, Johnny Griffin, a civil rights attorney.

Johnny Griffin III, a well-known civil rights lawyer, is representing Abrahams' parents, Rosemary and Cecil Abrahams of Davis.

He said that while police may have had no homicidal intent, their actions were deliberate.

"They intentionally Taser- ed him multiple times," Griffin said. "They intentionally dog-piled him. It was this intentional conduct that resulted in his death.

"All those facts support our position that the officers' use of force was unwarranted," he said.

Griffin has filed a claim with the city as a precursor to a lawsuit.

"I'm hopeful that city of Woodland will take full responsibility for the officers' conduct and resolve this case without causing the Abrahams family to go through the pain of protracted litigation," he said.

Yolo County Supervisor Matt Rexroad had a very different response on his blog.

"Life is messy. From my point of view it is unlikely that the Abraham family lost anything that can truly be replaced. Will $1 million of taxpayer money bring back their son? No Is it reasonable to assume that their son would have been a huge economic success considering that facts we have from the newspapers? No. The Abrahams have lost something that can't possibly be replaced. The life of their son.

People like the Abraham's attorney will fuel the public debate by pointing to the fact that the officers used their tasers and than officers used force. That seems like a pretty good way to take down a 300 pound man to me.

The Woodland Police Department did act purposefully. They acted in a manner that law enforcement officers do under those circumstances. It is difficult to come to any firm conclusions about their actions if you weren't there to judge the situation. I for one don't think that the taxpayers of Woodland owe the family any large amount of money at all. They may have some costs associated with this incident but it is not a major amount of money and it is not going to un-ring the bell."

While I agree that the Abrahams family lost something far more precious and something that they cannot replace, I respectful disagree with Mr. Rexroad here in terms of the manner in which law enforcement acted here.

First of all, no has suggested that the police intentionally tried to kill Mr. Abrahams. The question is whether they responded to this situation appropriately. That does not change if he had died directly from the taser shots or indirectly after being immobilized from the taser shots and then "dog-piled."

In fact, one might argue that the secondary cause of death being asphyxiation is even more on them because they bear responsibility for his health and well being after immobilizing him with a taser shot.

But even before we get to that point, we still need to ask whether they operated appropriately by firing the taser in the first place. He was not on drugs or alcohol. He was mentally disturbed. They received the call from the treatment center and should have known this. Hence is non-responsiveness should have been apparent. Should they have gone for the taser? Should they have attempted to talk him down for longer. He had a pencil. He was described by his psychologist as not dangerous. He had no criminal record. Why shoot the taser at that point? Why not call in his psychologist or at least place a call there?

I have talked to various law enforcement people on this issue. All of them stressed that they were not there, but they are increasingly concerned with how quickly officers go to solutions like the taser rather than use other tools and resources at their disposal.

Clearly the issue of the use of the taser is one that must be resolved first by the legal process.

Law enforcement officers in my view are responsible for his welfare the second they have him under their control. To what extent did the tasering contribute to this man dying of asphyxiation? To what extent did the act of "dog-piling" contribute? The cause of death may be accidental, that does not mean that officers do not bear responsibility. If subjects in their custody die from asphyxiation at times, why are police officers not trained to avoid those type of positions?

This is a tragic situation made all the worse because it seems it could have been avoided at multiple points in time. The courts will have to determine whether the use of a taser was appropriate. And the courts will have to also determine whether it was reasonable for the police to have foreseen that the position that they put the individual could have caused death.

I think a lot of people remain concerned about the use of the taser in a situation where you have a non-compliant individual who is mentally incapacitated. We will see what the legal system holds in this tragic death.

---Doug Paul Davis reporting

Analysis: Examination of the Council Feud from Tuesday Night over Water and Process

Everyone is talking about the city council meeting on Tuesday night and the dispute that erupted during the questioning period by Councilmember Sue Greenwald.

From my standpoint, Councilmember Greenwald was right on the substance of the issue. The former Mayor found the independent report lacking and she was pressing her case with the panel of consultants.

Councilmember Greenwald's position continues to be that the burden on the ratepayer is tremendous if the city decides to go ahead with somewhere around a $250 million water supply project at the same time it upgrades its wastewater treatment plant (something which the city really does not have a choice but to do). The councilmember is looking for ways to hold off on the surface water project for 25 to 30 years in order to give the city time to pay off the wastewater treatment upgrade.

Councilmember Greenwald was going about the business of questioning--firmly--but from watching the recording of the proceedings, respectfully, the consultants. It was at this point that tensions escalated. Mayor Ruth Asmundson interjected that Councilmember Greenwald was debating the consultants rather than questioning them.

At this point Councilmember Greenwald practically exploded at the dais and demanded that she be allowed to continue.

Councilmember Greenwald: "This is a half a billion dollar project, you have to allow us to question the experts. You have to."

Mayor Asmundson responded: "You have to ask about the report. No debating."

Councilmember Greenwald: "I am going to ask tough questions."

Mayor Asmundson: "You are out of order."

Councilmember Greenwald: "Ruth you can't do this. You have to allow councilmembers ask good questions and hard questions."

When Councilmember Greenwald tried to continue, Mayor Asmundson cut her off. At this point, Mayor Asmundson and Councilmember Don Saylor got up.

Frankly I think this was mishandled by both the Mayor and Councilmember Greenwald.

First, watching the questioning, I do not think it was that bad that Mayor Asmundson needed to step into the questioning. Councilmember Greenwald was pressing the consultant, but for the most part it was polite and respectful. She does have a right to try to question them in a thorough and tough manner.

Councilmember Greenwald probably could have done this more effectively with a set of pre-written questions based on information that she had gathered, and pressed the consultant much as an attorney. She probably did interject her own opinion with statements rather than questions a bit more than she could have. Nevertheless, from watching the exchange, it did not seem that the questioning was out-of-line to the point where the Mayor needed to interject.

The point at which tensions arose could and should have been avoided. This should not have taken place in the public to begin with, the Mayor should have called an immediate recess and had a discussion with the Councilmember. Councilmember Greenwald immediately escalated the situation when Mayor Asmundson interjected. Had she remained calm, she would have looked better in the exchange. Mayor Asmundson remained calm throughout, but also unnecessarily it seems escalated the situation.

Walking off the dais was rather unprofessional on the part of both the Mayor and Councilmember Don Saylor.

In short, Mayor Asmundson, in my view, strongly escalated a situation that really did not need to be escalated. Councilmember Greenwald is an elected representative to the people of Davis and was representing their views on council during questioning. Frankly, I have seen Sue Greenwald far more combative in her line of questioning than she was on this occasion. There seemed little need for interjection.

The power of the presiding officer is to allow each side to ask their questions of staff and consultants. Because the council is not afforded their own staff, this is the only far and equitable way this can work.

The only time a presiding officer should cut off discussion is under extreme circumstances when things really get out of control. This did not appear to rise to such a level and the Mayor should have allowed the line of questioning to continue.

If she was concerned about the line of questioning, she should have simply said, 'remember Councilmember, we are asking questions now, please keep all statements in the form of a question.'

But Councilmember Greenwald also bears responsibility. She lost her temper first, no matter that she was provoked, no matter that the Mayor was out of line. Losing your temper in this situation leads to an escalation and it also leads to the public's perception as to who was right and who was wrong.

The incident caught Davis Enterprise Columnist Bob Dunning's attention as well.

It is difficult to discern what Mr. Dunning's angle is, although he does seem somewhat inclined to side with the Councilmember on this one.

"Greenwald had the audacity to question a couple of projects that might just break the civic piggy bank before all is said and done - wrote Claire St. John in Wednesday's front-pager: 'Greenwald, who found the independent report lacking, asked if the panel of consultants focused at all on how the city was supposed to pay for a project that will cost about $250 million at the same time as it must upgrade its wastewater treatment plant at a cost of about $200 million.'"

Bob Dunning then continues:

"When I first read those numbers I was certain it was a misprint - surely it must be $2.5 million and $2 million - Greenwald removed all doubt about the proper placement of decimal points when she said 'I have yet to see what shape we'll be in after we pay off a half-billion dollars in debt.'

Hey, that's one of the advantages of having 65,000 people in town - as daunting as the figure sounds, it's only about $7,000 per resident, or $35,000 for a family of five - and if we'd all agree to stop watering the lawn, not to mention showering just once a week whether we need it or not, we may be able to bring that cost down by a dollar or two..."

Mr. Dunning gets the math right in terms of $7000 per resident, which as he points out, means a lot more per family and per residence. You are actually not talking $35,000 for a family of five, what you are talking about is roughly $14,000 per unit, probably more when you take into account residences versus apartments which are likely to pay considerably less.

And those are cost estimates. We all know that most projects run over their initial cost estimates, sometimes by a good amount for something as large and massive as this.

At minimum we are talking about paying an additional $100 if not more per month for one's water bill.

Think about this for a moment. With all of the complaining about the parcel tax, that is an additional $120 PER YEAR. This is 10 times that amount per year at minimum. Should not the rest of the council be asking the consultants just as tough a questions as Councilmember Sue Greenwald?

And yet this process has been almost bumped along without really the tough discussions or the tough decisions made. Why? Because they are using the process as a buffer. It is a piecemail process. There has been a logic behind this process that if we lose our place in line, then we get passed up.

Now some people have stated that they are willing to pay this amount of money for better quality of water. First, it is unclear they will get a better quality of water. Second, that does not help those on fixed or limited incomes.

But quickly, one of the problems with taking river water is that the water is only available if the river contains over a certain amount of water. So on a dry year like this, we may have plenty of water during the winter but during the summer we might get almost nothing from the water supply project and have to rely exclusively on well water. That's the fine print. Plus it seems to be first come first serve.

But if water supplies are less in the future, we may be paying a bunch of money upfront and get very little additional water and the quality of the water may be no different.

There is also a considerable degree of question of deep well water. Is that viable? Could we use that, as Councilmember Greenwald suggests, to hold off on the water supply project for another 20 to 25 years, at which point three things will have occurred: (1) we will have paid off the waste water treatment upgrade. (2) we will have a much clearer picture of the state water system. (3) there will be new and better technology that will probably either allow us to have different water options or make these options cheaper. There seems to be very little reason to rush through this project now other than the arbitrary time tables of the state water bureaucracy. But the risks of going ahead now appear to be just as high and very costly.

These are questions the Mayor and Councilmember Saylor ought to be asking just as strongly as Councilmember Greenwald. And yet they are not and that is really to the detriment of the people of Davis.

I am very concerned about the procedural implications of what happened on Tuesday night. If the Mayor can use the power of the gavel to silence a councilmember, it does not bode well for the rest of us who want a voice in government.

---Doug Paul Davis reporting

Vanguard Radio Postcast: Former Superintendent of Public Instruction Talks About the Parcel Tax

On Wednesday evening the Vanguard Radio Show interviewed Former Superintendent of Public Instruction, Delaine Eastin. She talked about the parcel tax, budget crisis in DJUSD, the state of education in California, and more.

To listen to the show, please click here

Topete Case Gets More Bizarre Rather Than Less

Just as you want to believe things will return to a more routine level in case of Marco Topete who is accused of killing Deputy Sheriff Jose Diaz on June 15, 2008, things get even more bizarre.

Suddenly Yolo County Public Defender announced that his office has a conflict of interest and can no longer represent Mr. Topete. Mr. Melton gave no reason as to what the conflict of interest was.

In a statement filed before court, Mr. Melton wrote:

"The Public Defender's Office cannot professionally and ethically represent the defendant herein without breaching professional and ethical duties and responsibilities."

The decision by the Yolo County Public Defender leaves many unanswered questions. One question will be apparently answered on August 8, 2008, when a Sacramento Judge will hear whether or not to remove presiding Yolo County Judge Dave Rosenberg from the case.

Sacramento Superior Court Judge David De Alba can only rule on the public defender's request to remove Dave Rosenberg. He cannot consider the defense challenger to the other Yolo County Judges because they have already disqualified themselves (in the case of three judges) or had not been assigned to hear the case at all.

A Brief Look At The Issue of Change of Venue

The question has been repeatedly been raised here and elsewhere, why they have not simply moved for a change of revenue. The answer seems to be there are several reasons. First, Judge Rosenberg would be the person who made the decision on whether there will be a change of venue and the Public Defender's office clear believes they cannot get a fair trial under Judge Rosenberg. Moreover the criteria for a change of venue may be difficult to establish.

According to California Case law there are "five relevant factors" that have been established for deciding venue motion based on pretrial publicity. There are: "1. nature and gravity of the offense; 2. nature and extent of the media coverage; 3. size of the community; 4. community status of the defendant; and 5. prominence of the victim."

Furthermore, California Penal Code § 1033 sets forth grounds by which and at what point a change of venue can occur.

Subsection (a) lays forward cause:

"On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county."

But also states that only the trial itself can be moved to another county, the pretrial proceedings shall all occur in the original venue.

"When a change of venue is ordered by the superior court, it shall be for the trial itself. All proceedings before trial shall occur in the county of original venue, except when it is evident that a particular proceeding must be heard by the judge who is to preside over the trial."

From this it appears then, that pretrial proceedings which are currently going forth, necessarily have to occur in the original venue.

Furthermore, from case law:

"A motion for change of the place of trial must be based upon facts and circumstances from which the conclusion may be deducted by the court that a fair and impartial trial cannot otherwise be obtained."

One of the standards is pretrial publicity makes it impossible to get a fair and impartial jury. While this case has received a fair amount of pretrial publicity, it is unlikely that the level rises to the standard needed. This has hardly been an OJ Simpson case of such high and sustained publicity that everyone has heard of this case.

Moreover, a disqualification of a judge is not sufficient to move venue.

Based on my limited reading of statutes and case law, it appears most likely that the strategy of the public defender's office was to disqualify as the Yolo County Judges which would give them a pretty strong case for change of venue.

However, it frankly seems unlikely that even Judge Rosenberg will be disqualified. So despite the strange turns of this case, it seems probable that it will be heard in Yolo County and by Judge Rosenberg.

Then again it is probably safer to hedge a bit given the strange turn of events this week that now sees the Public Defender bow out of this case. That will require someone else to be appointed to represent Mr. Topete. Again, this will not be grounds for change of venue either it would appear.

---Doug Paul Davis reporting

Former California Superintendent of Public Instruction Delaine Eastin To Be Guest on Vanguard Radio This Week

Tune into the Davis Vanguard Radio Show on KDRT 101.5 FM on Wednesday from 6 pm to 7 pm. Guest will be Former California Superintendent of Public Instruction Delaine Eastin. She will be talking about the upcoming Measure W on the Davis Ballot--the Parcel Tax which will be on the ballot in November.

Callers are welcome: 530.792.1648

PG&E in local and statewide news

Two years ago, PG&E spent over $10 million in an effort to prevent Yolo County from approving a public power initiative. Now PG&E is back in the news at the local level as well as at the statewide level.

There has on this blog been a long debate over the viability of a proposed development on the PG&E Service Center Site located at 316 L Street. The site encompassed around 27 acres, extending from Fifth Street to Second Street.

Councilmember Sue Greenwald has long trumpeted the site as a largely relatively unused parcel that would be walking and biking distance to the downtown and even UC Davis.

Separated from adjacent neighborhoods it would be ideals for high density housing and condos.

However despite these advantages some have questioned its feasibility. One question that has arisen is whether PG&E even wants to sell the site.

Former Davis City Councilmember Mike Harrington, who also was a member of the HESC pointed out that there was a letter from PG&E to the City that indicated their interest in selling the property. (See the scan of the letter). As it turns out this was available all along on the city's website and in the HESC packet when the site came up for discussion on July 26, 2007.



The letter in part reads:

"As discussed during the June 7 meeting, the City's philosophy toward maximizing green, efficient and renewable technology and opportunities is consistent with that of PG&E. The company is sensitive toward the needs of the community and we are open to considering and exploring innovative alternative uses for the site."

That should settle at least that portion of the debate. What remains unknown is the cost to the city that they would incur from purchasing the property. Although it would seem to me that a developer could do it and recoup the costs by developing the property and selling the units.

Still this would seem to be one of the more interesting sites that if available, it appears most Davis residents could get behind.

PG&E Gives $250,000 to defeat Proposition 8

The Los Angeles Times reported yesterday that PG&E announced it would give $250,000 to the No on Proposition 8 campaign.

According to the Times:

"Analysts said businesses may be more willing to get involved this time because they have more gay and lesbian employees who are out and in positions of power and because they believe the amendment could hurt business if passed, by giving the impression that California is not friendly to gay and lesbians."

Spokesperson Eilen Chiu said:

“We fought for immigration rights as well as for affirmative action. Gay marriage is the next initiative we felt is worthy to fight for. Every single employee and customer deserves the right to marry.”

The company is also calling for other California businesses to publicly endorse allowing gay couples to marry.

Not surprisingly the announcement was met by less enthusiasm by supports of the proposition, one of whom quipped that he couldn't call them up and tell them to turn off his power.

But then again, maybe such a move might generate good publicity.

---Doug Paul Davis reporting

Wood Fireplaces and Stoves: A Burning Issue At Tonight's Council Meeting

Wood burning fireplaces and wood stoves is probably about the last thing you expected to read about in the middle of a hot July day. However, experts are increasingly concerned about the impact of wood smoke on the level of particulate matter in the area during the winter. According to a chart provided by the city of Davis staff report, the city of Davis appears to be right on the board between needing a mandatory solid fuel burning curtailment and the requirement of building new cleaner burning devices.

In 2004, the Yolo Solano Air Quality Management District passed a rule to prohibit the installation of new non-certified fireplaces or wood stoves. But as we will see shortly, that rule helps, but does not alleviate the problem. According to the staff report, the rules set forth meet federal standards but not state guidelines.

The Davis City Council in January of this year asked the Natural Resources Commission to review this issue of wood burning restriction and to make recommendations to council. They made two recommendations. First, eventual complete wood burning prohibition. Second, "until the date certain for complete prohibition, initiate a permitting system for open hearth and EPA appliances that enables burning on days with certain meteorological conditions, based on wind speed."

The city staff however is not recommending the council follow the advise of the NRC.

"For the City to establish a new program by October 2008 is ambitious at best. The infrastructure for forecasting wind conditions, permitting, advertising and enforcement would all have to be constructed between now and October. Granted, some of the framework for education is there, but not the material and specifics for this program."

Furthermore:

"Staff is recommending that the City fully participate in the YSAQMD voluntary no burn programs. This could involve posting information on the City web page, including the information in City publications and any other action that would get the word out to educate the public on the adverse effects of wood smoke. The goal is to inform the citizenry of the hazards of wood burning.

Spend the next season working with the air district on developing/reviewing additional programs that would address the wood smoke air pollution. It seems that since the YSAQMD is at times, out of compliance on State PM levels, this may be starting place for a more stringent level for future restrictions. In addition to the public education efforts noted above, any large scale restrictions or bans on wood burning would require substantial public outreach and engagement."

A group called Yolo Clean Air is not happy with staff's recommendation. In a letter to the Davis City Council dated July 28, 2008, Alan Pryor writes:

"Staff’s comments seem to be completely and diametrically opposed to the NRC recommendations in that the NRC unanimously voted to recommend "'wood-burning appliances should be eliminated as completely as possible as soon as possible” while staff is recommending that "the City fully participate in the YSAQMD voluntary no burn programs. “…and…”Spend the next season working with the air district on developing/reviewing additional programs”. Quite honestly, this is exactly where the process bogged down three years at the NRC. Nothing was accomplished then as a result and nothing will be accomplished by the current round of studies if staff'’s comments are accepted and implemented."

He continues:

"It would seem by staff’'s comments that the biggest objections of staff to the NRC recommendations as proposed have to do with the amount of time staff feels they would have to spend implementing the ordinance."

Mr. Pryor looks for a compromise solution to bridge the gap between the action he deems necessary and the city staff's recommendation.

"As such, we have proposed what we believe is a very fair compromise that virtually removes all work required by the city staff including the provision for licensing or permitting. In our compromise, we have also suggested a much more gradual phase-out of EPA Phase II wood stoves as long as restrictions on when they can be safely used are included. This is in recognition of the fact that some folks have just purchased EPA Phase II wood stoves in good faith that they were doing the right thing (even though doing the right thing would have meant installing a natural gas-fueled stove or insert instead). However, we are sympathetic to their concerns and we believe our new compromise before the Council is reflective of that."

When I first heard about the possibility of banning wood burning stoves, I was rather outraged at the notion. After all, walking through a town during a cold winter day, it is rather a cozy to walk around and see the fireplaces going and smell the burning wood. That's of course if you do not have allergies. But then you look at the levels of particulate matter produced by wood burning stoves and the possible health impacts and it paints a very different picture.




Source: Yolo Clean Air

The issue came up during the campaign at the Sierra Club candidate's forum. That gives us insight into three of the council members views.

Sue Greenwald simply said:

"I am in favor of looking into an ordinance for banning wood burning."

Don Saylor gave a long-winded answer that read remarkably like the staff report. The synopsis of his answer was this:

"While I want to withhold judgment until hearing from the NRC, I think we will probably see a combination of further restrictions on burning using specific appliances, incentives and rebates for purchases of cleaner EPA appliances, and more awareness of the issues pertaining to wood burning and the environmental effects."

It will be interesting to see how he reacts to the NRC recommendation that differs from staff's recommendation.

Finally Stephen Souza probably gives a somewhat less committed answer than even Councilmember Saylor.

"There are already restrictions in place on new construction and new installation of fireplaces or wood burning appliances. The Yolo-Solano Air Quality Management District's Rule 2.40 requires the use of pellet fueled heater or EPA certified heaters. We should also require that at the time of sale, remodel or a certain date that all fireplaces that do not meet Rule 2.40 be replaced or rendered inoperable.

We can also promote a self-imposed program of “Don’t Light Tonight” whereby residents do not use their fireplaces or woodstoves when air pollution is approaching unhealthy conditions."

It will be interesting to see what happens, though it seems likely given the stated positions of the three candidates that won election, that the staff recommendation will win out.

I will be very interested to see if this issue has resonance for the readers of the Vanguard. As I said, it seemed a bit nebulous for me until I saw the data.

---Doug Paul Davis reporting

Housing Element's Plan Looks Bleak But There is Some Hope for Consensus Building

A fascinating story this morning the Sacramento Bee by Hudson Sangree.

In it, there is a discussion of the Housing Element Steering Committee's (HESC) housing plan. From the onset there were 15 members, 3 appointed by each of the councilmembers. The assumption was that with a 3-2 split on council between those aligned with local developers and those favoring less growth, that there would be a 9-6 pro-growth majority.

However, according to Vice Chair Mark Siegler, a Sue Greenwald appointee, that's not what happened.

According to the article:

"It came as a surprise when a committee of 15 residents, appointed by council members to help shape the future of Davis, worked together for a year and reached agreement on an innovative housing plan.

It proposes modest growth within the city's current borders. Infill projects deemed beneficial to the city would get priority."

Mark Siegler is quoted saying:

"It was sort of an amazing outcome... I was ready to go in there and just do battle to the death."

Instead now the fear is that the plan that was meticulously worked on over the course many months would be undermined by the city council with very different agendas and ideas than the committee members.

"Over the course of several months, we came to much more of a middle ground... I wouldn't be surprised if members of the City Council are not happy with the outcome based on who they appointed... I hope they don't just dismiss this thing out of hand."

HESC Chairman Kevin Wolf said:

"We have the political consensus to force the City Council in a new direction."

However, if the meeting last week is any indication, this consensus is about to break down into the usual fighting.

For example, Councilmember Stephen Souza and Don Saylor want to push for developing the Nishi property which was ranked No.17 by the steering committee. Mayor Ruth Asmundson complained that some of the properties like the PG&E site and the school district headquarters are not feasible since no one determined if the current occupants would be willing to move or develop their properties.

On the other side of fence, Councilmember Lamar Heystek worried that the list would lead to an artificial means by which to induce growth. Councilmember Sue Greenwald argued vehemently last week the city does not need to grow given the weak market.

However, in my discussion with Lamar Heystek on KDRT Radio last week, he agreed that the city council had considerable room for consensus building. There are clear philosophical differences between the two sides over the rate of growth and the willingness to develop on Measure J sites, however, there is also significant agreement on other areas.

The reason the HESC was able to come to consensus is that they avoided the more contentious "how much issue" and went toward the "where" issue. And in the immediate future, almost everyone agreed that we ought to grow in infill sites near the city's core and move out.

The council majority of Souza, Saylor, and Asmundson have a choice. They certainly have the votes and the recent election results to push forward with any agenda they see fit to seek. On the other hand, strategically speaking, they may be better off tackling development projects where they have basic agreement on location first.

As the HESC report makes clear, there are more than enough of these infill projects to meet either the low end RHNA numbers for the next five years or even the high end, 1% growth cap numbers without looking to a single peripheral project.

However, there are still a lot of pitfalls along the way.

Covell Village: The return of Covell Village is one thing to look at. The group formerly known as the Covell Partners has repackaged the project splitting the development into three segments. The first segment which would be on the lower third is looking towards senior housing. Senior housing is probably the next huge hot potato in general. There is a divide within the community about the need for senior housing and the type of senior housing. Some have suggested that senior housing internal needs are small and any big project would pull from a more regional and even statewide basis, others suggest that residents in Davis ought to be able to move their senior parents into closer proximity.

The form of senior housing is another question. Some have suggested that ideally smaller condos are better suited for seniors than senior-only segregated communities. The argument here is that many seniors want to downsize, but not live in senior-only communities. Some seniors do not even want to downsize.

Nishe: If one looks to location alone this Measure J project would be ideal. But there is a huge hurdle--that is lack of road access. The only access right now would be the narrow Olive Drive leading to the congested Richard Blvd interchange. The road access is so prohibitive that developers have suggested having only campus access for cars and otherwise only direct access to the rest of the city via bicycle or pedestrian traffic. Sounds good in theory, but recognizing the need for special traffic provisions illustrates the pitfall of the development. One alternative might be to give it to the university and have the university use it to expand it's on-campus housing base.

Lewis Property: This is the property that divides the progressive community. On the one hand, many believe that Lewis is an ideal place to develop as means to accommodate growth demands while at the same time not paving over farm land. The fact that it's already paved over and has some of the infrastructure needs plays into that desire. Still, others worry about provisions that Lewis is developed with a mind toward its more controversial eastern neighbor, Covell. While Lewis is considerably smaller than Covell, some of the same concerns that plagued Covell, apply to Lewis. Others such as Councilmember Sue Greenwald have been steadfastly pressing for high tech industry, arguing that we have few high tech zoned sites, that this is the ideal way to bring in new industry, and that the site is not conducive to residential development. The current owners however are pressing hard for a residential development. This is not a Measure J site, and it seems like that the residential side will eventually win this fight much to the chagrin of a number of others.

Wildhorse Horse Ranch: This is another peripheral site that would trigger a Measure J vote. The property came up for consideration early this spring and the meeting was largely an unmitigated disaster as neighbors complained about the project and even council would-be supporters seemed close to pulling the plug on the deal. However, the project has been re-worked. Many of the neighbors are if not supportive of the project, at the very least had their criticism muted. This is likely the next Measure J project Davis will vote on. Probably sometime in 2009. How will it go? It's only 40 acres. The project is said to be extremely environmentally innovative on the cutting edge. If the neighbors are brought along it could pass. If the neighbors remained as outspoken as they were at the last meeting before Council, it is a different story.

Those projects represent varying levels of political opposition. There are other projects within the city limits that would be slam dunks. I still believe one of the biggest mistakes of Covell Village was the timing. The council put all of their eggs into one basket on development and as a result, when Covell was voted down, there was nothing left in the queue. The result, few new housing permits the last three years of city council. The pro-growth majority, for a two-year stretch, a 4-1 pro-growth majority oversaw the period of the slowest growth in recent Davis history.

The question at this point is whether the council majority has learned a true lesson from Covell Village. The lesson is not that people do not want growth. However the lesson is also not that they did not explain the project or sell it well enough. The lesson is that the council tried to do too much, too quickly, with one project that was easy for people to understand the consequences of and easy for people to oppose. Moreover, it was polarizing. If the council can avoid polarizing future votes and issues, and instead form broader community consensus, much as the HESC was able to do, they will be successful. If they cannot, their majority will likely be lost.

---Doug Paul Davis reporting

Trader Joe's Finally is Coming To Town

There was a time, I would have greeted this news with great enthusiasm. But two separate and frankly unrelated events have caused my enthusiasm to wane for Trader Joe's.

It all started when Trader Joe's determined that the only location in Davis where they would move would be the University Mall on the corner of Sycamore and Russell.

Now it turns out there were a few problems with that location. One was that there was another business already there--Radiological Associates of Sacramento (RAS).

The Davis City Council two years ago approved zoning to allow Centro (the owners of the mall who do not live in Davis) to negotiate with RAS to allow Trader Joe's to move in. RAS refused and Centro sued them. The judge dismissed the suit. Eventually of course Trader Joe's and Centro got its way and RAS is moving to a location on Covell Blvd.

So the big company gets its way, this was precisely the type of company that I had hoped Trader Joe's was not. More on that in a second.

Second problem with that location is that they need to tear down the existing building and put in a new building.

Third problem with that location is parking which is virtually non-existent.

Fourth problem with that location is traffic congestion. Already the one-block area between Sycamore and Anderson on Russell is the most congested area in town. Now you are going to add a major new business that figures to be a huge draw. Do not drive by on Russell during the first few weeks of Trader Joe's.

Fifth problem is one few have discussed--the crows. If you walk around the University Mall during fall and winter you would think you are in Alfred Hitchcock's The Birds. Look at the asphault, it is soaked in bird dropping. When it gets wet, the place is absolutely punget. You want to put a major business there?

And as if all this were not enough, it turns out that Trader Joe's is not the progressive socially responsible business everyone has been... well crowing about.

As we've been reporting for a month now, there was a tragic death of 17-year-old farm worker who was pregnant, young Maria Isabel Vasquez Jimenez. Maria Isabel died from heat exposure after working long hours during the mid-May heat wave in the central valley. As importantly she died because the supervisor failed to get her proper medical attention. By the time she was seen by a doctor she had a core body temperature of 108 and slipped into a coma and then died.

The United Farm Workers report that Charles Shaw wines is the great supplier of the famed "Two Buck Chuck."

Now Trader Joe's is claiming there is no connection.

"Maria Jimenez was employed by an independent contractor, working in an independent vineyard. The vineyard supplies many wineries, but was not supplying grapes for Charles Shaw."

However according to the United Farm Workers this is untrue.

"Trader Joe's prides itself on serving the most progressive, health conscious consumers in our society. They should not evade the issue by pointing to contractor arrangements made by the winery to insulate itself from responsibility for exploitation of the workers. Trader Joe's needs to take moral responsibility and help end that exploitation."

The UFW site continues:

"The facts in this case are clear: Maria Isabel Jimenez died a tragic death while working on a farm--West Coast Farms--co-owned by Fred Franzia. Mr. Franzia is also the owner of Bronco Winery, which produces Charles Shaw wines. It is widely reported that 5-13 million cases of Charles Shaw wine is sold at Trader Joe's stores per year.

We are not denying that Maria was paid through a farm labor contractor. As attorney Robert Perez who is representing Maria's family in a wrongful death lawsuit told the Sacramento Bee, "The reason why corporate farms hire labor contractors is not to have to deal with farmworkers themselves and to shield themselves from liability."

So not only is Trader Joe's involved with the contractor, but they are shirking responsibility. This is very disappointing.

This week the Associated Press reported that Cal-OSHA slapped the farm labor contractor with the largest fine ever.

"The employer of a pregnant teenager who died of heat stroke after pruning grapevines for nine hours in hot weather was hit Wednesday with the highest fine ever issued to a California farming operation.

The California Division of Occupational Safety and Health fined Merced Farm Labor $262,700 for violating eight workplace safety rules. The agency said some of the violations were intentional. A criminal investigation also is under way.

State authorities believe 17-year-old Maria Isabel Vasquez Jimenez died on May 14 because her supervisors denied her access to shade and water as she pruned white wine grapevines for more than nine hours in nearly triple-digit heat at a Central Valley vineyard."

Len Welsh chief of Cal-OSHA told the AP:

"There was virtually a complete absence of shade or water, two of the very few tools that employers and employees have to fight the heat... It's just too bad we can't undo the consequences of those violations."

Cal-OSHA faulted the Merced Farm Labor company for not only failed to provide water but deliberately neglected to train workers and managers on how to stay safe while working in punishing temperatures. The company also willfully skirted preparing for a medical emergency. These violations are the most serious and each carry a $70,000 penalty--the maximum under the law. There is also a criminal investigation underway as well as a wrongful death suit filed on behalf of the family.

Yet closer to home, the mood seems jubilant that Trader Joe's is coming to town.

The Davis Enterprise quotes Davis City Councilmember Stephen Souza:

"It's really a great day to finally see that come to fruition. It seems that everyone has finally been made whole, and Davis will see the doors open to Trader Joe's. It is fantastic news for all the folks that love Trader Joe's and all those that will come to love Trader Joe's."

There was a day when I would have been one of them. But the long drawn out battle over location, Trader Joe's refusal to move into the empty shopping center in West Davis or East Davis and decision to push out RAS, and now their refusal to take responsibility for the actions of their vendor, really sour my mouth. I will stick with the co-op when I want something different to eat.

---Doug Paul Davis reporting

The Governor's Move: Without Conscience

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

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

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

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

As Sacramento Bee Dan Weintraub wrote on Thursday:

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

The logic behind the move is also either faulty or phony. Schwarzenegger says he needs to save cash so the state can operate without borrowing more if there's no budget into September. If he is sincere in that belief, then what's the point? Why force state workers to sacrifice just to give the Legislature more time to debate? What they need is pressure, not a way to relieve that pressure by improving the state's cash flow situation. Which is why the more likely reason behind the move is that Schwarzenegger wants to use state workers to ratchet up the pressure on legislators to get it done."

Senate President Pro Tem Don Perata, D-Oakland, said on Thursday that Schwarzenegger's proposal caught Democrats by surprise.

"I was with the governor twice yesterday... He didn't even bring this up. So if he wanted to leverage me, you know, it's like you put a gun to your head and say hey, I want your attention now."

...

"I don't know why he did it. It was certainly unnecessary. It's incendiary. You know, he is really trying to incite the wrong people. But if he wants a fight, he's going to have a fight ... this is an act of war. It's a declaration. He is doing war on the people of this state who make California run. So whoever advised him ought to be in an unemployment line right now. If he thought of it himself, shame on him."

The Senate President became even more indignant making fun of the Governor for his "brigade of 13 armed escorts." He mocked the Governor for being out of touch with the average Californian.

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

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

Controller John Chiang issued a statement on Thursday:

"[The State Supreme Court] has never addressed the legality of withholding full salaries versus paying minimum wage (and) the governor's proposed executive order would only invite more extensive and expensive litigation. Worse, should the courts find that withholding full pay is illegal, the state will be liable for treble damages."

Sen. Dean Florez:

"I don't think it is wise for the governor to use working men and women as hostages for the state budget... I think it shows weakness on his part as a negotiator. The men and women who do the hard work that keeps our state running deserve their full pay."

The Controller is refusing to pay state workers minimum wage in defiance of the Governor's executive order. Controller Chiang got support yesterday from the Legislative Counsel, which said in an opinion requested by Sen. Florez that the governor cannot compel the controller to reduce workers' pay.

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

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

Florez told the Sacramento Bee yesterday:

"Florez said he hopes the legal opinion will cause Schwarzenegger to "reverse his actions and apologize."

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

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

"There are a lot of ways to negotiate a better budget, rather than taking hostage state workers and forcing a minimum wage statute on them because he thinks he's king and he can do it," Florez said."

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

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

---Doug Paul Davis reporting