Re:  Blair Park City-PRFO Negotiations and Brown Act

Dear Mayor, Vice Mayor and Council Members:

“It’s time to assure city residents that council members will stop acting on their own to advance their personal agendas, bolster their pet projects or benefit their political backers.”
 (Oakland Tribune Editorial, Friday, July 19, 2013)

             We suspect, after review of public records and past practices, another Piedmont City Council majority’s violation of the heart of the Brown Act.  “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” (Gov. Code Sec. 54952.2(b)(1))

 The Council majority met at least 3 times with PRFO.  Council members discussed, coordinated and then negotiated.  The only possible closed sessions were without subject matter information to the public or required Brown Act notice.  But for information pried loose by Tim Rood, the public has been locked in the dark about the PRFO $200,000+ bad debt.

         The City-PRFO agreement requires PRFO to pay City project costs and an $118,000 security deposit, and authorized termination of City participation if the deposit ceased covering City costs.  Ineptly or intentionally, City leadership spent beyond the deposit without requiring its replenishment and then inexcusably has sat on the arrearage for over a year.

 City leadership has taken pains to avoid admitting negotiations occurred, pretending the meetings were merely “constituents … discussing issues with their elected officials” (Grote’s July 5 letter to Tim Rood).

 Call it pork, or call it ham, City emails show both negotiations and most elements of a Gov. Sec. 54952.2(b)(1) violation:  discussion of negotiating strategy among Council members and the City Administrator; involvement of PRFO’s President Menke, PRFO’s General Council Havian and Ellis, PRFO’s Chair-Fund Raising Committee; City Council subject matter jurisdiction — PRFO’s bad debt.

It is highly unusual for a public agency’s majority to be negotiating, especially without its lawyer when the other party’s (PRFO’s) lawyer is always present.  This raises a strong potential for Brown Act violations.  Were the negotiations for a public relations campaign to cover an already-made Council majority decision for non-payment?

 Shrouded in darkness, the negotiating Council majority’s support of the City-PRFO partnership and marching banner –“Say Yes to the Gift! No Taypayer cost!”– has become a civic monument to deception and poor planning.  It has cost taxpayers many $100,000s and become one of most divisive events in Piedmont history.

 Before the 2012 sewer surtax election we confronted the Council with uncontroverted City records: a 3-member Council majority (Barbieri, Chiang and Weiler), in violation of Sec. 54952(b)(1), and with the City Administrator as intermediary, privately prepared and approved rebuttal ballot arguments to the surtax opposition. We suspect an illegal pattern and practice by a Council majority, now with a different majority, but with the same City Administrator intermediary.

               City leadership replaced open government with back-room dealing and, when challenged, has responded with calculated obfuscation.  Taxpayers risk even greater financial loss from more of this bad behavior.  Replace this all too-cute tap dance around the Brown Act with a demand for immediate payment of PRFO’s bad debt and, if necessary, pursuit of legal collection.

Very Truly Yours,

Thomas D. Clark

Rick Schiller

Piedmont residents

Editors’ Note:  The opinions expressed are those of the authors and not necessarily those of the Piedmont Civic Association.

The Piedmont Unified School District has announced the following:

The Piedmont Unified School District will be selling a series of Measure E Seismic Safety Bonds during the week of August 5. These general obligation bonds will refinance bond anticipation notes sold by the school district in 2010. The expected principal amount of the bonds is $12 million. Residents who are interested in purchasing a portion of the bonds are invited to contact the bond underwriter using the following link:

http://share.syllc.com/xythoswfs/webui/_xy-3733067_1-t_Gy8USxBL

Piedmont has an ongoing Smoke testing program to test for and detect infiltration and inflows (I/I) in your Personal Sewer Lateral (“PSL”). An inflow is water entering your PSL by an illegal connection that was formerly legal by decades old construction methods. The most common would be a cross-connection from your roof gutters. This can literally add hundreds if not thousands of gallons of water in the rainy season from a single home.

An infiltration is a crack or offset in your PSL. A PSL is often buried at up to six feet down and the amount of water let in by a crack can be negligible, literally a miniscule fraction as compared to an illegal inflow connection. The smoke testing will detect all I/Is and be reported to the City for correction.

Virtually all clay pipe PSL have some displacement and will fail the test even if no cross connection is present. EBMUD Manager of Wastewater Environmental Services Ben Horenstein stated that a clay system is better entirely replaced than repaired. Many steel PSL’s may have a displaced hub and this will require repair or replacement. The displacement inflows are negligible compared to an illegal cross-connection, yet the homeowner will have to bear the cost of entire replacement, normally starting at $5,000.

EBMUD has recently dramatically increased its rates; they do not intend to increase the capacity of their treatment plants. The reason our PSL’s are being tested is the result of a 2011 and 2012 Stipulated Orders (“SO”); the primary focus of these SOs is to stop the EBMUD treatment plants from becoming overwhelmed and discharging waste water into the Bay. Certainly, illegal inflows should be stopped, but I question the wisdom of forcing a complete PSL replacement on the many older homes that contribute negligible and inconsequential amounts to the overflow.

Of the seven public agencies affected by the Stipulated Orders, Piedmont is at 65% of mainline sewer replacement and second only to Emeryville at 70%. Piedmont is far ahead of the other cities in terms of mainline replacement. Berkeley has made significant progress and has a bit over a third of their mainline sewer replaced. Emeryville is an anomaly as their system is even older than Piedmont’s and their farsighted vision of attracting Big Box retail required properly working infrastructure. There is no resident sewer parcel tax in Emeryville.

Piedmonters have one of the highest sewer taxes (and the very highest school tax) and City Hall has attempted dramatic and questionable increases of the sewer tax. $900,000 of out $2.1M sewer tax revenue is transferred to General Funds annually with no time sheet system in place for the $900,000 transfer. Other costs taken from the Sewer Fund include storm drain work and, in some instances, the cost of repairing private party expenses as in the PHUUD Undergrounding Crest Road collapse. Eventually, that $275,000 was replaced by other taxpayer money from the General Fund; I would characterize this as rearranging deck chairs on the Titanic.

Those at City Hall who lament that Piedmont is no longer in the lead in improving the environment miss the total picture, or do not care to see it. Our mainline replacement is far ahead of other cities and close behind Emeryville (with no sewer parcel tax). Piedmonters are replacing PSLs at a higher rate than other cities as a higher percentage of Piedmont residents can afford this “luxury.” We continue to take the lead in the complex issue of keeping the Bay and environment clean.

Rick Schiller, Piedmont Resident

July 21, 2013

Editors’ Note:  The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association. 

Tired of paying for E-books?  The Oakland  Public Library offers those with a library card on-line download of books from their E-library.  The library purchases a limited number of the E-books.  A person might have to wait their turn to borrow an ebook and adhere to the seven day time limit on each use. The City of Piedmont annually pays the City of Oakland $350,471, which allows Piedmonters access to all services provided by the Oakland Public Library.  

To find out more about E-books go to……http://www.oaklandlibrary.org/online-resources/e-books-and-downloadable-audiobooks

To learn more about the many other services offered by the Oakland Public Library go to: http://www.oaklandlibrary.org/online-resources/e-books-and-downloadable-audiobooks

Piedmonters can return borrowed books by placing them in the library drop box outside of Wells Fargo Bank next to the mail boxes.

The City announced that sewer lines will be tested in four areas of Piedmont. Work will occur from 8 am to 5 pm weekdays. Door hangers have been placed on the first group of affected homes. E2 Consulting Engineers will conduct the tests, which involve blowing harmless smoke into parts of the sanitary sewer system to find damage, improper connections, and where unwanted storm water may be entering the City’s sanitary sewer system.

The City cautions, “smoke may be seen coming from roof vents, building foundations, catch basins, clean-outs, down spouts, broken sewer laterals or manhole covers. The smoke will not enter your home or business if it is properly plumbed, vented, and the water traps contain water.”

Notice & map of sewer testing areas.

For further information contact:

Jeff Blum of E2 Consulting Engineers at 510-774-9223

or for the City,Viba Regalado-Silva Administrative Assistant (510) 420-3050 or Chester Nakahara Public Works Director at (510) 420-3061.

At the July 16 Oakland City Council meeting, a vote on phase two of its Federally funded Domain Awareness Center (DAC) was delayed until July 30 in response to citizens’ privacy concerns. Officials describe DAC as an “immense time-saving tool” for their police and fire departments. It will assemble multiple sources of data and video  streams from across the city– the Coliseum, the Port, Oakland schools, as well as  license-plate readers, gunshot detectors, Twitter feeds, and alarm notifications– to create a unified “situational awareness” computer base. Information provided by the Piedmont Police Department would feed into Oakland’s DAS, including the new LPR system photos of license plates and cars crossing Oakland/Piedmont borders. Oakland’s City Council approved DAC in concept in 2010. The second phase of DAC was approved by the Oakland Public Safety Committee on July 9. It will involve collaborating with other government entities to share additional data and video feeds for the DAC, according to Renee Domingo, Oakland’s Director of Emergency Services.

Several other cities have experience with the DAC concept. Long Beach was the first in California, opening its $21 million security Command and Control Center in June,2011. Microsoft Corporation and the New York Police Department (NYPD) launched their Domain Awareness System (DAS) last summer and subsequently licensed it to other cities. DAS analyzes crime patterns in real time, integrating geographic information displays with massive layers of personal history–including both criminal and public domain information–about any suspect in a matter of seconds. DAS collects and archives streams from thousands of NYPD and private CCTV cameras in New York City, integrating data from multiple non-NYPD intelligence databases 24 hours a day, seven days a week. Its headquarters in a lower Manhattan office tower features a command-and-control center staffed around the clock by both New York police and stakeholders, including the Federal Reserve, Bank of New York, Goldman Sachs, Pfizer, and CitiGroup. Metadata  collected by DAS will be retained for five years, and unspecified “environmental data” will be stored indefinitely.

DAC and DAS are based on the 2001 Total Information Awareness (TIA) program headed by John Poindexter in response to the 9/11 attack. It is a functional view of world-wide information. Transaction space (internet, landlines, satellite phones, cellphones, etc) is mined to discover and track terrorists through their information signature. TIA was developed to pick terrorist signals out of the vast information stream. To get a sense of TIA, DAS and DAC, readers can watch the two-year-old CBS TV fictional crime drama “Person of Interest” which was inspired by the federal TIA.

More information:

http://oaklandwiki.org/Domain_Awareness_Center

A significant number of major retail stores gather personal  information and shopping behavior patterns from the smartphones of customers. Retailers use the information about customers’ moods and movements to determine displays, product areas and more.  The New York Times reports that retailers learn, “… information as varied as their sex, how many minutes they spend in the candy aisle and how long they look at merchandise before buying it. All sorts of retailers — including national chains, like Family Dollar, Cabela’s and Mothercare, a British company, and specialty stores like Benetton and Warby Parker — are testing these technologies and using them to decide on matters like changing store layouts and offering customized coupons.” Nordstrom’s announced that it has terminated wifi data mining of its customers.

Few shoppers are aware that they are revealing as much about themselves to brick and mortar stores as to online shopping sites. Removing the smartphone battery would prevent exposing personal information in a suspected data mining environment but the most popular smartphones have embedded batteries. Many smartphone owners keep their devices set on the automatic wifi setting, the gateway that allows retailers to gather customer information. Interestingly, simpler, older cellphones, without wifi capability, reveal nothing to retailers.

Read more:

http://www.thedailybeast.com/cheats/2013/07/15/retail-stores-track-customers.html

http://www.foxbusiness.com/personal-finance/2013/07/15/stores-tracking-consumer-shopping-data/

At the University of California Regents meeting on Thursday, July 18 at UCSF Mission Bay, recent Secretary of Homeland Security Janet Napolitano was elected President of the ten campus University. Student regent Cinthia Flores cast the only vote against Napolitano. Flores told the Daily Californian, “Napolitano will make an excellent manager and administrator.  However, I think she may need time to familiarize herself with the University system and the unique responsibilities of the University of California President.” Several reporters described the meeting as raucous, with students lining up to oppose the candidate, protestors yelling, “Shame! Shame!” and six arrests, according to the San Francisco Chronicle.

Her annual base salary will be $570,000 which is less than the $591,084 base salary of outgoing President Mark Yudof. (Yudof’s annual compensation package was $925,000, including car and housing allowances, retirement contributions and other benefits, making him one of the nation’s most highly paid college Presidents.) In addition to her base salary, Napolitano will receive $28,500 annually in special senior management benefits, retirement contributions and other benefits as well as expense allowances. She will also receive $142,500 for relocation expenses. Altogether, a nice improvement over her $199,700 salary as homeland security secretary.

The current president told the New York Times that fundraising is not done by the office of the president.  Nevertheless, the new president faces a funding shortfall predicted to be $2.9 billion by 2016. In the past two decades the state contribution to the per student cost of UC has declined 65%. For 2013-14 the state will appropriate $2.64 billion toward the UC $24.3 billion budget. Nevertheless, it has continued to burden the university with unfunded mandates. Although the State of California provides only 11% of the UC budget, in a relic of past centuries when it provided virtually the entire support, state government controls all major governing decisions for the university. (In addition to selecting the UC President, the Board of Regents sets tuition, enrollment levels, salaries, etc.) Of the 26 Regents, 18 are appointed by the Governor, the one student regent is appointed by the Board of Regents, the remaining regents are ex-officio–the Governor, Lieutenant Governor, Speaker of the State Assembly, State Superintendent of Public Instruction, UC Alumni Association President, UC Alumni Association Vice President and the UC President.

Student tuition contributes 13% toward the UC budget, but there is only one student regent. The majority of UC support comes from faculty inventions and technology transfers that are the property of the University as a result of employment and the multitude of faculty-generated proposals that win grants, contracts and chair endowments from private foundations, individuals, the U.S. federal government, foreign governments, private industry, multi-government entities such as the European Union, United Nations and Commonwealth of Independent States, etc. The faculty has no representation on the governing Board of Regents.

Read more

Three meetings were held at City Hall with Council members, the City Administrator and leaders of Piedmont Recreational Facilities Organization (PRFO) to “discuss the remaining money issues.”  Correspondence by email between the negotiating parties was provided to a citizen in response to a Public Record Act (PRA) request. The question under discussion that led to the PRA request, is whether this series of meetings discussed city business and did it amount to a serial meeting and thus, require public notice under the Brown Act.

Eric Havian, PRFO leader to Mayor John Chiang and City Administrator Geoff Grote on December 12, 2012:

John and Geoff,

Now that the lawsuit has been resolved, PRFO would like to have a meeting with you to discuss the remaining money issues.  Do you have some time in early January when we could meet?

Eric R. Havian

Mayor John Chiang to Eric Havian, PRFO leader on December 13, 2012:

Hi Eric,

Thanks for your message. Let’s try to schedule something the week of the 14th of January.  I know Geoff will be on vacation and will be busy the week of January 7th.  That will also give us time to gather up to date information for our discussion.  If you have some suggested dates that will work, let me know.  Late afternoons work best for me and I suspect for you too.

Have a great holiday season!

John

John Y. Chiang

The meeting occurred at City Hall on January 31, 2013.  It was attended by Mayor John Chiang, City Administrator Geoffrey Grote, with PRFO leaders Eric Havian, Steven Ellis, and Mark Menke.

City Administrator Geoff Grote to Eric Havian, PRFO leader on March 20, 2013:

Eric,

The Mayor would like to continue the conversation on costs for the Blair Park Project and would like to know if you, Mark, and Steve are available to meet anytime the first two weeks in April? John is out of town on April 4th; but will try and make any other dates work.  We were thinking that meeting late in the day seemed to work; 4 or 4:30 or 5 PM.

Thanks, Geoff

The second negotiating meeting occurred at City Hall on April 11, 2013.  It was attended by Mayor John Chiang, Council member Robert McBain, City Administrator Geoffrey Grote, with PRFO leaders Eric Havian, and Mark Menke. The third negotiating meeting occurred at City Hall on June 17, 2013.  It was attended by Council member Margaret Fujioka, City Administrator Geoffrey Grote, with PRFO leaders Eric Havian, and Mark Menke.

Dear Mr. Rood,

 

The City of Piedmont is in receipt of your public Records Requested dated July 1, 2013 requesting, “…all records, emails and communications related to the negotiations with PRFO that took place on Jan. 31, 2013; April 11, 2013; and June 17, 2013, including all records, emails and communications prepared in preparation for these negotiation meetings.”

 

The City of Piedmont is pleased to provide the following records in response to your request:

• Email string from Steven Ellis to Eric Havian and Geoff Grote dated January 22, 2013
• Email string from Geoff Grote to Rosie Navarro dated January 23, 2013
• Email string from Robert McBain to Geoffrey Grote dated March 1, 2013
• Email from Robert McBain to Geoffrey Grote dated March 4, 2013
• Email string from John Chiang to Geoffrey Grote dated March 20, 2013
• Email string from Steve Ellis to Geoffrey Grote, et al, dated March 21, 2013
• Email string from Geoffrey Grote to John Chiang dated March 21, 2013
• Email string from Robert McBain to Geoffrey Grote dated March 21, 2013
• Email string from John Chiang to Geoffrey Grote dated March 22, 2013
• Email string from Eric Havian to John Chiang, et al., dated March 22, 2013
• Email string from Mark Menke to John Chiang, et al., dated March 22, 2013
• Email string from Robert McBain to Geoffrey Grote, dated March 22, 2013
• Moraga Canyon Sports Fields Professional Costs – dated December 31, 2012
• Burke Williams Sorensen, Friends of Moraga Canyon vs. City of Piedmont – undated

I believe this fulfills the records request you filed with the City of Piedmont. 

Questions persist on Brown Act compliance.

Violation of the Brown Act by Council members’ contiguously and jointly meeting with Piedmont Recreational Facilities Organization (PRFO) leaders depends on the subjects discussed in the meetings, links of the various meetings, participants at the meetings and the possibility of staff acting as an intermediary.

The Brown Act (CA Gov. Code § 54952.2 (b)(1))  “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”

Questions have been raised by citizens regarding the right of Council members together with the City Administrator to meet, without public notice, with individuals to discuss “any item of business that is within the subject matter jurisdiction of the legislative body.”

On January 31, April 11, and June 17, 2013 at various times three members of the City Council met with signers to an agreement between the Piedmont Recreational Facilities Organization (PRFO) and the City.  Because staff and Council members had indicated the intention to meet with PRFO to discuss the outstanding unpaid reimbursement balance, these meetings are  presumed to involve settling the payments owed by PRFO.  No other agenda has been offered for the three meetings with the PRFO leaders, but if no City business was discussed, no public notice was required.

At the meetings PRFO was represented by two leaders in each meeting and a third PRFO leader joined one meeting.  The City was represented by the City Administrator and the Mayor alone or with an additional Council member or by a third Council member alone. This composed a majority of the Council and the principals of PRFO meeting for the purpose of negotiating the amount of money owed to the City of Piedmont for expenditures on behalf of PRFO’s Blair Park project. 

In a statement in the July 5, 2013 , Piedmonter,  Assistant City Attorney Rafael Mandelman said,  “We take the Brown Act seriously.  I looked into (the matter) and it doesn’t seem to me there was a violation. There was never any deliberation among a (City Council) quorum or any discussion about what other council members said.  The elements don’t seem to be there.”

Piedmonter and former Planning Commissioner Melanie Robertson wrote, “..at the end of the three meetings, three of the five City Council members–Mayor Chiang, McBain and Fujioka–in addition to Grote, had met with PRFO officials Havian and Menke about the PRFO debt but without public notice, participation or comment.  The Brown Act provides that the three members of the council ‘taken as a whole invovles a majority of the body’s members.’ thus, the three meetings combined, as defined in the Brown Act, clearly constitute serial meetings and therefore are in violation of the Brown Act.”

It is not known what has been deliberated, but negotiations have been acknowledged in emails between the participants, which includes a majority (quorum) of the Council.   If the private negotiation meetings produced any conclusory information or direction, this has not been publicly announced.  Serial private meetings by a majority (quorum) of an elected body involving  negotiations, unless specifically exempted under the law, constitute a violation of the Brown Act.  It is unknown why the matter has not been placed on a public agenda for consideration and public input on the facts.   

During the review of  the development of Blair Park on Moraga Avenue in Piedmont by PRFO, an agreement to reimburse City expenses, for legal work and other consultants, was struck outside of public meetings between PRFO and the City.  The project was approved.   Following litigation brought by Friends of Moraga Canyon (FOMC) and objections by the City of Oakland, on May 7, 2012, the Council rescinded its approval. 

After the City’s costs were itemized, PRFO evidently contested some of the charges.  Details on the matter have been questioned and requested to be publicly discussed.  Costs, if not borne by PRFO, will fall to the City’s taxpayers through the City General Fund.

In response to a citizen inquiry, the City Administrator asserted that the private meetings supported by City staff are legal under the Brown Act. Tim Rood had observed that the meetings appeared inconsistent with the Brown Act.

The following links are provided for more information on the Brown Act:

http://www.cacities.org/UploadedFiles/LeagueInternet/86/86f75625-b7df-4fc8-ab60-de577631ef1e.pdf

http://www.asnc.us/2004-archives/Special-2004/0805-CityAttnyOpinionReNCs-BrownAct.pdf

http://en.wikipedia.org/wiki/Brown_Act

http://www.brownact.4t.com/