–  Landscape plan to improve neglected park –  

Councilman Robert McBain made comments at the August 19th City Council meeting that were quoted in the POST (8/21/13) that I believe need to be addressed.  Friends of Moraga Canyon (FOMC) settled its lawsuit against the City of Piedmont by accepting $30,000 for the reimbursement of legal fees.  FOMC asked that $15,000 of the $30,000 settlement be deposited in a separate account with the City of Piedmont expressly for the purpose of retaining a landscape designer to create a plan to improve Blair Park.

$30,000 was transferred from the City’s Legal Indemnity Fund to pay this obligation.  Piedmont Recreation Facilities Organization (PRFO) established this fund as a vehicle to fulfill its written promise to cover any and all legal liabilities incurred by the City in connection with the Blair Park project. (To date, PRFO still owes the City approximately $220,000.)

FOMC raised and paid over $70,000 to cover its legal and other expenses.  The settlement directed $15,000 to FOMC’s attorneys to pay off the remaining balance still owed.  This left $15,000 in settlement funds that could have been used to repay some of its major supporters.  Instead, FOMC decided to have these funds placed in a City account expressly for the purpose of hiring a landscape designer to create a plan for the maintenance and improvement of Blair Park. Unlike all other well-cared for Piedmont parks, Blair Park has been ignored and neglected, especially during the four years of the sports field controversy, and a plan to enhance the park’s natural setting and amenities is sorely needed.

Al Peters, Former Piedmont Mayor

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

A $15,000 contract for landscape design improvements to Blair Park is up for approval by the Piedmont City Council on Monday, August 19.  Public Works Director Chester Nakahara is recommending the contract be awarded to Restoration Design Group (RDG) of Berkeley, in partnership with HortScience, Inc., a horticulture, arboriculture and urban forestry firm. 

Improving Blair Park’s landscape is part of a 2012 settlement agreement between Friends of Moraga Canyon (FOMC) and the City in a lawsuit filed by FOMC against the City’s Environmental Impact Report for construction of a sports field in the park. The settlement called for the City to retain a professional landscape architect “who has experience in creating and/or implementing plans for natural open space parks similar to Blair Park.”

After extensive review, RDG/HortScience were rated the most qualified by City staff and by an FOMC subcommittee, which reviewed proposals from three local firms. According to Nakahara, “Restoration Design Group possesses extensive experience in natural open space restoration, and combines that with a distinct qualitative character that will be brought to their approach in designing a plan suitable for the unique conditions of Blair Park.”

During the 12-week project, RDG and HortScience will assess the health of every tree in Blair Park, recommend risk abatement, such as pruning, and tree preservation. They will conduct a survey of existing pathways and trees and recommend proposed site improvements, plant species, pathway design, erosion control measures, and provide a preliminary cost estimate of the recommended improvements.  RDG will present its plan at a public hearing of the Piedmont Parks Commission on October 2, 2013.

In its proposal letter, RDG stated, “The landscape improvement plan will focus on ‘low impact’ changes to the open space.  However, if the City is interested, the plan could lead to a bolder, more long‐term vision for the site.  Blair Park is at the headwaters of the Glen Echo Creek (sometimes referred to as Cemetery Creek) watershed.  The creek flows below the park in a storm drain.  The landscape improvement plan could set a long term vision to daylight the creek through the site.  The addition of a water feature would greatly benefit birds and create an even more tranquil, soothing setting for park users.  The proposed low impact landscape improvement plan could design the site to accommodate and even stimulate future large scale improvements.”

RDG concluded, “We understand that Blair Park has had competing proposals in the recent past, and we intend to design a project that will help heal relations and reinforce the decision to keep Blair Park in a natural condition.”

Staff report

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.

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/

The City provided the following letter to PCA, in answer to Tim Rood’s letter concerning meetings of various Councilmembers on the subject of the unpaid Piedmont Recreational Facilities Organization (PRFO) balance in connection with their Blair Park sports project.  (see previous correspondence)

July 5, 2013

Dear Mr.Rood:

The City of Piedmont is in receipt of your letter, dated July1, 2013, alleging that members of the City Council violated the Ralph M. Brown Act by meeting with representatives of the Piedmont Recreational Facilities Organization (“PRFO”). Tim, I fear that you have misconstrued the Brown Act in such a way as to imply that the Act prohibits constituents from discussing issues with their elected officials.

Specifically, your letter states your belief that ”the participation of a majority of the members of the City Council in one or more of the negotiation sessions with PRFO constituted a serial meeting of the City Council that was not properly noticed under the Brown Act.”

The residents of Piedmont have a basic right to meet with their elected officials.  This right is in fact so important that Government Code §54952.2(c)(1) specifically exempts contacts or communications between a member of a legislative body and “any other person “from the requirements of the Act.   The mere fact that a member of the public ultimately meets with a majority of the members of a legislative body in separate meetings does not in and of itself mean that a “meeting” has occurred within the meaning and regulatory reach of the Brown Act.  A meeting, serial or otherwise, occurs only where a quorum of Council has discussed, deliberated or taken action (§54952.2(b)(l)), none of which took place in the meetings between PRFO and the Councilmembers.

 

For years, the City of Piedmont has endeavored to meet and exceed the requirements of the Brown Act and provide ample public notice to residents. However, the Act has not previously been interpreted to prohibit members of the public from discussing issues with their elected officials. Indeed, Piedmonters opposed to PRFO’s proposed project have also met with Councilmembers and they were fully within their rights to do so.

 

Sincerely,

Geoffrey Grote, City Administrator

City of Piedmont

In a Piedmonter article dated June 19, 2013, City Administrator Geoff Grote is quoted as follows:

“If we demand more than they are willing to pay, we have two choices — let it drop or proceed in arbitration that was included in the indemnity and reimbursement agreement (with PRFO).

“The City Council will make the final determination of the issue. We should have an announcement in the next several weeks.”

The Agreement calls in Section 8 for binding arbitration to finally settle any dispute and in Section 9 for any amendments, modifications or changes to the agreement to be in writing and to be signed by both parties. Mr. Grote’s comments indicate that a proposal modifying the Agreement to remove the arbitration requirement will come before the City Council in the next few weeks, if it has not already done so. In his June 20, 2013 email to me, Mr. Grote stated the following: “The Council is in the process of deciding what course of action they wish to pursue.” This indicates that the Council has already begun deliberating, as may be indicated by the June 17, 2013 closed session agenda, “Pursuant to G.C. Sec. 54956.9 the City Council will meet relating to possible initiation of litigation (one case)” which could be construed as referring to deliberations regarding entering into arbitration with PRFO.

I believe the participation of a majority of the members of the City Council in one or more of the negotiation sessions with PRFO constituted a serial meeting of the City Council that was not properly noticed under the Brown Act. If the Council takes action to forgive these debts to the City or to otherwise modify the terms of the Agreement, such action would not be in compliance with the Brown Act because there was no adequate notice to the public of the serial discussion of this issue by a majority of the Council members.

The Brown Act specifically prohibits any use of direct communication, intermediaries or technological devices by a majority of the members of a legislative body to develop a collective concurrence as to action to be taken. (Gov. Code § 54952.2). Such a series of separate discussions by individual members of a legislative body regarding matters within their jurisdiction without actually coming together and meeting is referred to as a serial meeting. This type of prohibited meeting can result from a series of communications of individual members or groups of members that are less than a quorum which then result in involving a majority of the members of the legislative body. A serial meeting is prohibited by the Act because the acquisition of information, as well as all debate, discussion, or any other aspect of the deliberative process is required to occur in public. The term “deliberation” has been broadly construed to include “not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.” Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal. App. 3d 231; 84 Ops. Cal. Atty. Gen. 30 (Feb. 20, 2001) Thus, the use of direct communications, personal intermediaries, or technological devices by a majority of members to develop a collective concurrence as to action taken by the legislative body is illegal.

Providing substantive information from staff to members of a legislative body may be a violation when such information is a part of systematic communications for preparation for a meeting or engaging in discussion, lobbying or any other aspect of the deliberative process. For example,

Resident Urges City Council  to Reconsider Risk Management Policies – 

The following is an open letter to the Piedmont City Council.

Re: Risk Management Policies

To the Piedmont City Council:

I urge you to reconsider some of your members’ stated opposition to reviewing the risk management oversights which were made in connection with the City’s consideration of the Moraga Canyon project, as understanding how and why they occurred will help guide your review and consideration of the recently proposed risk management policies.

As a preface, these issues are independent of the political wisdom for or against the Moraga Canyon project. They deal solely with the project risks presented, some of which were similar to the risks which surfaced in the Piedmont Hills Undergrounding project. I will confine my comments to three principal aspects of the project: 1) The contracting arrangement was not legal because Blair Park LLC was not properly licensed; 2) design responsibility and liability was omitted from the agreements; and 3) the bond requested was not required to be posted by the proper party and so would have not protected against the appropriate risks.

First, while creating a new entity – Blair Park LLC – to be the contracting party was apparently done in an attempt to insulate the City from potential construction cost overruns, because Blair Park LLC was agreeing to cause to have the complex constructed, it was required to be a licensed contractor, but was not. It was immaterial that all the actual construction work was to be performed by Webcor, a licensed contractor. Vallejo Development Company v. Beck Development (1994) 24 Cal.App.4th 929, 941 (“The fact that [the developer] subcontracted with licensed contractors to provide the actual labor, equipment and materials to construct the infrastructure improvements is irrelevant. [Business & Professions Code] Section 7026 plainly states that both the person who provides construction services himself and one who does so ‘through others’ qualifies as a ‘contractor’. The California courts also long held that those who enter into construction contracts must be licensed, even when they themselves do not do the actual work under the contract.”) Because Blair Park LLC was the contracting party with the City, it was obligated under California Business & Professions Code Section 7028 to be licensed.

Indeed, under Business & Professions Code Section 7028.7, the City itself could have been issued a citation and fine by the State Contractors License Board Registrar for entering into a contract with an unlicensed contractor. A contract with an unlicensed contractor is considered to be illegal and unenforceable. I brought this issue up with the City staff and the project proponents prior to the Council meeting at which the project was approved.

Second, notwithstanding the fact that Blair Park LLC had design/build responsibilities, because the City’s proposed agreement with Blair Park LLC, and Blair Park LLC’s conditions of contract with Webcor were apparently modeled on the Webcor-Havens School contract model (under which the school district owner provided the design, unlike here where Blair Park LLC was obligated to provide the design), the agreements and conditions for approval and site Lease completely omitted any reference to design liability and professional liability insurance. Public owners are used to providing the design, and being responsible for it, so it is perhaps easy to understand how this important risk factor would get completely overlooked when the City was contemplating the use of a different contract delivery model (i.e., design/build), but it also highlights why a risk management assessment of not just the detailed procedures but also more importantly, the big picture items, is so important.

Lastly, although the contract required Webcor to obtain a performance bond (and there was to be a further requirement to provide unspecified neighboring property damage security regarding potential future damage to houses), the exact risk which was at the center of Piedmont Hills Undergrounding – unforeseen subsurface conditions requiring extra work – was a Blair Park LLC risk, not a contractor risk, and would therefore not be covered under Webcor’s performance bond. Blair Park LLC was responsible for providing the design of the significant retaining walls, which design was necessarily dependent on unknown subsurface conditions.

Webcor was to be responsible for constructing what was depicted in the design and shown on the plans. If the subsurface conditions actually encountered were different than what was shown on the plans, and the design had to be modified and required extra work, those extra work claims – that cost over $2.5 million on the Piedmont Hills Undergrounding project – would not have been covered by Webcor’s performance bond (nor any damage security bond). Blair Park LLC was the only party to have design responsibility, and it was not required to post any performance bond. By analogy, requiring the undergrounding contractor on Piedmont Hills to post a performance bond did not mitigate its $2.5 million in extra work claims. The City had to pay for the extra work to complete the undergrounding because it could not leave the streets with open trenches. So too on Moraga Canyon, if the contractor encountered unknown subsurface conditions requiring extra work in the middle of constructing the retaining walls and re-routing sewers, somebody would be required to pay for the extra work because the work would have had to have been completed for safety reasons. Blair Park LLC was not required to provide any security demonstrating any ability to pay beyond the agreed upon contract construction costs. As occurred on Piedmont Hills, the City, as owner, would have been responsible to cover the extra costs to allow the construction to be completed. However, the City has demonstrated that it cannot even recover from the project proponents its out of pocket consultant costs under the Indemnification Agreement. There was no agreement to cover this real risk. Thus, while the Moraga Canyon project called for a bond, it was the wrong party being required to post the bond, and so the City remained at risk if the project required extra work to deal with unforeseen subsurface conditions. This was a repeat of the same exact risk as on Piedmont Hills.

These risk issues could have and should have been caught and addressed in a risk management analysis. The presently proposed Risk Management Procedures did not, and would not have caught these material oversights. As the old cliché provides, those who cannot remember the past are condemned to repeat it. If these types of risks were not addressed on the Piedmont Hills Undergrounding project, or on the proposed agreements for the Moraga Canyon project, on what basis does the Council think the present City project team, procedures and proposed risk management policies will catch them in the future? A change in paradigm is needed if one wants a different result. Learning from past mistakes is more productive than simply trying to ignore them, and focusing on minutiae to the exclusion of understanding the big picture is bad policy.

Respectfully submitted,

Rob Hendrickson

cc: Piedmont Civic Association

Piedmont Patch

Piedmont Post

Piedmonter

LWVP

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