Emery is Failing to Support & Care For Children Says California Department of Education

Study Shows Emery Fails to Engage/Support Students

Children Don't Have an Adult on Campus They Feel Cares About Them

Children Don't Feel Safe at ECCL Says DoE

A new study released by the State of California shows the schools at Emeryville's Center of Community Life failing to provide students with a safe campus and Emery Unified School District failing to support and engage students there.  The study, called the School Climate Index (SCI) and conducted for the Department of Education reveals Emery failing students in 'overall support and engagement', scoring single percentile digits against other school districts in the state.  But Emery is doing above average as far as providing a campus with low violence and low substance abuse among students the study also shows as revealed by surveys and interviews with students, parents and teachers.
Since 2011 however, the first year Emery participated in the statewide SCI survey, there has been a steady downward trend in student support and engagement.

For 2017, Emery High School emerged with a SCI score of 198 out of 500 in the domain of 'overall support & engagement' putting it in the bottom 2% of all schools statewide.  When compared with schools of a similar demographic, Emery rises but only just to the bottom 6% of schools statewide the study shows.  The two worst scoring sub-domains for Emery in the Index are 'high expectations and caring relationships' and 'school connectedness' both of which placed the school at the bottom 1% statewide or the bottom 2% when compared with schools of a similar demographic.  According to the study, it can be shown definitively that a clear majority of students at Emery don't feel there is an adult at the school that cares for them, they don't feel close to anyone at the school and they don't like being at the school.

Emery Unified isn't alone to blame for the bad numbers however; the District's partner, the City of Emeryville helped shepherd the Center of Community Life and that built facility net a SCI score of 228 for '[student]perceived school safety'.  That puts our new bond funded $200+ million campus in the bottom 8% for perceived safety among students statewide, hardly a ringing affirmation of the 'community' part of the ECCL.  Either through the campus as built or the programs run by Emery Unified School District or a combination of both, the students attending school every day on the new campus don't feel safe, a likely contributing factor in Emery's low academic achievement numbers.
Another contributing factor in Emery's low student support and engagement SCI numbers is the extremely low rate of teacher retention since Superintendent John Rubio was hired.  Supporting documents for the study indicate high teacher turnover, especially among veteran teachers alienates students and drives down student/school connectedness and engagement, both critical for effective student learning.  Accordingly, the Tattler has reported on how Emery's slide in academic achievement since Mr Rubio took over has translated into the District becoming the second worse ranked school district in the entire Bay Area.

The School Climate Index documents Emery's fall since 2011 in overall student support and engagement when the high school scored higher than average.  That year Emery ranked 77% compared with 25% this year and most of the fall has been in the student support and engagement domain.  The biggest fail has been in the category of 'caring relationships' where children feel there is an adult on the campus that cares about them; that has fallen from an above average 359 points in 2011 to just 200 now, and that translates now to the bottom 1% ranking (2% as compared with school districts of a similar demographic).

The SCI shows the District is clearly failing in its charge to educate and care for our children and the School Board will take up discussion of the disturbing trends revealed by the Index starting Wednesday but it is unlikely they will take action since the majority of members have repeatedly shown they will stand by Mr Rubio.  They have shown no propensity to be moved by the constant stream of bad numbers hitting the District and hence the children, be it teacher retention, academic performance or school ranking generated by the Superintendent since they hired him.

Emery scores for 2011 and 2014
Broken out are the categories in the two domains (overall support/engagement
and violence/substance abuse).  Together the combined score is called the SCI score.

Emery SCI scores for 2011 and 2014.

Emery scores for 2017
Broken out into categories

Emery Scores for 2017As translated into percentiles.

Oops! Construction Warranty on New $100 Million School Covers One Year, Not Two

Forced into a corner, Emeryville School Superintendent John Rubio reveals construction warranty ends in a 

matter of months.

By Lillian Schroth

Emeryville School Superintendent John Rubio notified the School Board and City Council Monday that the construction warranty on the city’s new $100 million school campus – plagued by ongoing construction problems since it opened last fall – expires in just a few short months.

This despite repeated public assurances from Rubio and the liaison for builder Turner Construction that any problems with the city-school project, known as the Emeryville Center of Community Life (ECCL), would be covered under warranty through 2018.

Superintendent John Rubio
Claims he "just found out."

Perhaps more surprising is Rubio’s failure to notify the School Board and City Council sooner. Despite the looming deadline, and a long list of needed repairs, Rubio sat on the information for weeks. In fact, he shared the news only after repeated questioning from this reporter, saying he "just found out."

Rubio disclosed the truth Monday night after a meeting of the Measure J Citizens Oversight Committee (COC), which is charged with monitoring school project expenditures. After the meeting, several COC members were questioned about significant, ongoing issues with the building. COC member Josh Simon, former Emeryville School Board President and director of a non-profit that builds affordable housing, said it was important that the district submit a “warranty list” within year one of the warranty to ensure repairs are made.

When asked when that first year of the two-year warranty was up, Rubio said he wasn't sure. When pressed, he said “I think” the entire warranty is actually only one year (not two) from the time construction was completed last fall. He also suggested that the warranty period might be different for different buildings. For example, the gym was the first building to be completed, he said, so the warranty for that would expire first.

When asked if he had told the School Board, he said “I think I told one or two members.”

Shortly after the Monday evening discussion, Rubio sent an email to the entire School Board and City Council notifying them of the update. He explained there had been a "miscommunication" around the length of the warranty.

“It’s Kind of a Big Mistake”

Rubio insisted that he had “just found out,” as did John Baker of Swinerton Construction, the high-priced middle man between the School District and Turner. Baker was tasked with monitoring, negotiating, and communicating construction details and costs. The School District recently closed out the Swinerton/Baker contract for more than $1 million.

“It’s kind of a big mistake,” Rubio said Monday of Baker’s failure to know and/or communicate the limited warranty period.

In a follow up email exchange today, Rubio explains:

I didn’t recall specifically how this came to light so I went back to search my email and discovered it was a conversation that you actually prompted in mid-May as an email question to John Baker.
This resulted in a conversation between him and Turner, where Turner told John Baker it was a 1 year warranty.
That later resulted in another response that Swinerton disagreed and had different documents that showed 2 years.
I asked an attorney who reviewed their email (and … was involved in the ECCL construction contract negotiations between the city, district and Turner in 2014), and he was able to identify and confirm that outside of items specifically calling for longer warranties (e.g. the roof), all other areas fall under a one year warranty. 

John Baker, the $1 Million Man
Despite his very expensive advice and
monitoring, the School District
suffered costly mistakes.
Perhaps he was one of them.

John Baker’s May 19th response to the email question cited by Rubio above: “The warranty started at Final Completion (12/5/16). The Lease-leaseback contract stipulates a 2-year warranty period.” He never followed up with the public, the School Board or the City Council, when he realized his mistake.

It is possible that Baker, and perhaps Rubio, knew much sooner. During a March 25 School Board meeting, Baker presented a slide that showed the warranty expiring at the end of this year. Rubio nor the School Board questioned it. When a local resident did, Baker said it was a “typo.”

In a series of progress reports to the Board prior to March, Baker said the project was covered under a two-year warranty.

In an email sent today, Rubio said “city staff and I have confirmed that the warranty period allows us to submit items up until 12/5/17.”

He added, “It’s my understanding that the standard for construction projects of this size only usually have a 1-year warranty.”

Two Year Warranty(?)
John Baker presentation slide to the School Board
August 24th, 2016

He said there are several items that have longer, manufacturer warranties including door hardware and “Package Terminal” air conditioners.

Two Year Warranty(?)
John Baker presentation slide to the School Board
January 25th, 2017

Following are Rubio’s email answers to questions about the warranty period, the warranty list, including rusting gates, and a possible audit of Measure J/ECCL funds. (The exchange has been edited down for readability.)

Q: When did you make the call on the metal to be used on the gates? … So, you got ungalvanized when it was supposed to be galvanized?

A: I am upset by this issue. The city and district had a long list of items we considered to save money. It was not, unfortunately, ever pointed out to me or the city staff that the original gates/gate design came back into the project (and I believe off of the budget savings list) in a different form that meant that they would not be galvanized – and more importantly, no one explained or communicated the implications or importance of this. In other words, I don’t believe I was ever specifically asked to make a decision about the gates as one particular item (i.e. they were part of a very long list of potential savings items), and certainly I wasn’t informed of the pro’s or con’s (or any information that I recall) regarding this. If you were told otherwise, I think that’s false. Turner is being responsive to this issue and they are returning in the next couple weeks to redo the gates.

Q. How much did we pay John Baker and what was his formal job title/role/responsibility?

A. I am not aware of his salary – or what other projects or jobs he managed besides ECCL during our project. The overall budget for everything going into this project seemed to me to be always set to be as low as possible to attempt to keep the project below a specific amount the council had in mind for several years – that seemed to be the mindset when I arrived - the problem (or reality) was that the economy and thus bay area construction costs were quickly going up when the project was finally approved in August of 2014 – so the amount paid to Swinerton, Turner, and all the subs I think created some limitations to the amount of time and staff (and design) of the project.

Q. One more thing - you said you were organizing some kind of meeting with all the people involved in the project - architects, turner, etc. What is the purpose and what school board meeting is it scheduled for? Are you thinking this is in place of an audit?

A. I haven’t made progress on this yet, but I was planning on having all of the entities present to the board and take questions so the board could determine if they believed an audit was needed. 

                                                                                                        

Lillian Schroth is a journalist, activist and founder/editor of The Secret News, a local blog (currently on hiatus).  She has lived in Emeryville for 14 years.

School Board President Insists NO Audit of ECCL Project

Rift Between City & School District

Audit Latest Imbroglio

The City Council has suggested the School District Board of Trustees audit Turner Construction, the builder of the Emeryville Center of 'Community' Life in order to claw back some money the district might have overpaid for the building project but the Board President is demurring, indicating he is more inclined to try to get money out of its ECCL partner, the City of Emeryville instead.  It's part of a growing rift between the District and City Hall born out of differences in how to divide up cost overruns in the contentious schools/community center project.

The City/Schools Committee, consisting of the membership of the City Council and the School Board, met May 4th and the frosty relations were evident when Vice Mayor John Bauters suggested going to construction giant Turner, who has recently been indicted for bilking clients, to see if there may be recoverable costs to help offset the cost overruns of ECCL*.  The idea was embraced by the entire Council but Board President Merriam oddly said it would not be appropriate, a position he has held for quite some time even as he has refused to properly elaborate.
Mr Merriam joined with former Board President John Affeldt last summer in quashing an attempt to audit Turner, citing the existence of the Citizens Oversight Committee (COC) makes it unnecessary.

Emery School Board President
Donn Merriam
'Even though Turner Construction
has been caught overcharging 
clients, we must not audit them'.

Just two years ago the County of Santa Clara held Turner to task for cost overruns and delays.  Turner blamed the city for the issues.

Mr Merriam's odd assertion of no Turner audit brings into question who's interests he has at heart.  The ECCL budget went significantly over budget and is still not complete.  Board member Brynnda Collins, when expressing her support for a Turner audit, questioned the quality of the work stating, "Big chunks of metal (are) falling and almost hitting a teacher."  There have been multiple suggestions of design flaws like lack of storage, concrete poured too thin and poor drainage.

It is clear to many there are enough reasons for an audit.  City Council member Bauters stated it could find enough savings to cover the remaining $370,000 the district owes Turner.
Los Angeles Unified School District routinely audits projects.  It should be noted LAUSD is so large that they have a group that audits every project. Turner recently was found to have overcharged them $190,000 on a $98 million project, almost exactly the same size project as ECCL.

Conflict of Interest?
Clearly audits are done and effective tools to protect taxpayer funds.  Which leads back to the question, does Board President Merriam have a Turner connection in his work as an employee of the architecture firm of Deems Lewis Mckinley (DLM)?  A Tattler search of their projects and Turner's revealed no direct overlap.  However it did turn up a project that involved Swinerton Management and DLM.  Swinerton worked on the ECCL project and frequently partners with Turner.

South San Francisco Unified passed a large bond project and used Swinerton to manage the project.  DLM bid on and was chosen to do the work. It is not clear if the Emery Board President personally worked on the project but the appearance of impropriety is evident.  Of course, an elected official should not be in the position to have to chose between what is best for their constituents and their pocketbooks.

The School Board is scheduled to discuss auditing the ECCL project at their May 10th meeting and Mr Merriam should leave the room while this is being discussed.  If he stays in the room, he should disclose the firm's relationship with Swinerton and have the legal counsel provide guidance.  It should be noted President Merriam has been caught violating simple rules of transparency because he claimed he was unaware of the conflict.

*NOTE: Although Turner Construction is a 'primary partner' with Turner GROUP Construction, it was Turner GROUP Construction that was indicted for bilking it's clients.  Turner Construction, the builder of the ECCL wasn't indicted but they were found to be overcharging their clients as the story states.  The Tattler apologizes for the mix up.

Failure: Teacher Retention Project at Emery Schools

Teachers Head For The Exits at Emery Unified
 School District

Newly Built Schools & Parcel Tax Notwithstanding
Emery Can Not Hang On to Its Teachers

News Analysis/Opinion
Will Emery Unified School District ever deliver on its promise to educate?

We've certainly done our part; Emeryville voters have up until now given Emery Unified School District whatever it asks for, be it bonds or a parcel tax.  What about the other side of the partnership?  When is Emery Unified going to deliver a school we can send our kids to?  

The success of a school or school district can be judged on many levels, academic achievement (test scores), employee satisfaction or turnover, balanced budgets, among other items.  Emery Unified specifically has made teacher retention a priority and the district extended a parcel tax, Measure K (2014) who's ballot language stated unequivocally: to recruit and retain qualified experienced 
teachers and staff.  Emery's Superintendent John Rubio, has failed on all these counts even with new school buildings at the Center of 'Community' Life and the extra parcel tax funds.  This invariably has a negative impact on the students that go to our schools.

"There is a shortage of good teachers, treat them poorly, they will go to better-paying districts where they are supported and appreciated."

Emery Unified reported in their budget update in March 2017, that there are 53 Full Time Equivalent (FTE) positions or “Certificated Staff”, which could include a Speech Therapist, Psychologist, and Nurse.  Currently, there are 21 vacancies posted for the “Certificated Staff” for 2017-18 school year at Emery Unified (see edjoin.org keywords: emery unified).  They are also looking for 10 Substitute Teachers.  They're going to need them.
This does not reflect well on a district of Emery’s size.  It is clear that there is a not a positive working environment, teacher morale is low and something is deeply wrong.  The departure of two teachers at Anna Yates during the middle of this school year is especially troubling.
One would be bright spot at Emery it was noted is a decrease in the payroll budget, however given that new teachers (and less experienced teachers) are paid less and this is responsible for the decrease, any good news is substantially attenuated.  

Emery Unified Schools Superintendent John Rubio
From his histrionic December 2016
letter to the Emeryville community:
"Last spring, we carefully paper screened over 250
teacher applicants to hire the best and the brightest
teachers we could find for your children."

Emery Unified has not delivered on its promise to Emeryville's voters who passed the Measure K parcel tax.  It is not recruiting nor retaining the number of quality teachers our kids deserve. Administration staff also plays a role in the stability of a school. With only one Administrative vacancy, this would appear to be progress. However, the posted position is for the elementary school principal and represents the third elementary Principal in as many years.  Add to that two high school principals, two curriculum directors, and the turnover in administrators at the critical positions is just as high.   It also begs the question, how are Measure K parcel tax funds not being spent on Administrator salaries (as required by law) when there are more administrators than recommended by the state.  Why a district of Emery’s size requires twelve administrators is unclear. That is one administrator for every 57 students (based on an enrollment of 682 students).

From Emery USD March 2017 budget report:

Position	FTE	Posted Jobs	Posted Vacancies
Certificate (teachers)	53.0	18.0	35.0
Administration	12	1.0	1.0
Classified*	17.9	5	5
Total	82.9	24	41

* The classified positions are all for coaches and don't speak to employee satisfaction.

Why does this matter?  Because pedagogical experts and ordinary Emeryville citizens know that teachers are the key to academic achievement.  When 40% of your Certificated (teaching) staff need to be recruited for the upcoming school year, it raises eyebrows.  What can we expect our student progress towards math and english proficiency to look like this year?   We will find out our State scores in August.

This year, Superintendent John Rubio will be ending his third year with Emery Unified and given there are only 71 non-management positions, that is one manager for every six employees, six and half if you don't count the Superintendent.  With a school district that top heavy, we should expect some accountability for the unacceptable current state of affairs at Emery Unified School District.  Current Emeryville City Council member and former School Board Trustee Christian Patz, who during his Board tenure often publicly jousted with the Superintendent spoke to the obvious, "When I voted against renewing Dr Rubio's contract, I did so because I was aware of the negative culture in the district.  Teachers and administrators told me they feared retaliation if they spoke out.  There is a shortage of good teachers, treat them poorly, they will go to better-paying districts where they are supported and appreciated."

Superintendent Rubio refused to comment for this story.

This is what we get for all the money we've spent.

The Rise of the Fake Community Benefits Agreement

Councilman Bauters, Schools Supe Rubio
Push Fake CBAs

Illegitimate Projects Legitimized

Community Engagement Hijacked
by Fake Grassroots Agreements

“A Community Benefits Agreement ("CBA") in the United States is a contract signed by community groups and a real estate developer that requires the developer to provide specific amenities and/or mitigations to the local community or neighborhood. In exchange, the community groups agree to publicly support the project, or at least not oppose it. Often, negotiating a CBA relies heavily upon the formation of a multi-issue, broad based community coalition including community, environmental, faith-based and labor organizations” -Wikipedia

News Analysis

A Community Benefits Agreement is a powerful tool a developer can use to legitimize his project to facilitate a quick approval by a municipality.  CBA’s are also popular with elected officials as any future bad effects brought on by a development can serve to decouple the effects from the politician’s responsibility.  Given the out-sized power of CBA’s, it’s easy to see how they would be tempting to developers and even politicians to abuse for their own benefit rather than the greater community; the very definition of ironic.  This being Emeryville, it should not be surprising that’s exactly what’s happened.    

Here in Emeryville two recent development projects have been sold to the public by developers and politicians using obfuscating tactics of the fake CBA: the Sherwin Williams project and the Emeryville Center of ‘Community’ Life.  In the case of the Sherwin Williams “CBA”, a private and exclusive group of people brokered a deal with the developer Lennar Urban behind closed doors, the greater community shut out of the process and at the Center of ‘Community’ Life, the “CBA” was struck between the Emery Unified School District and the developer Turner Construction, without any community members whatsoever.  Both these projects subverted the purpose of actual Community Benefits Agreements.  

ECCL Fake CBA

Superintendent of Emery Unified
School District
John Rubio
Beneficiary of the ECCL fake CBA.

The Center of ‘Community’ Life “CBA” was created by former Board of Trustees President John Affeldt and the Superintendent of the Schools John Rubio as a way to mollify critics of the decidedly undemocratic tactics the School District made use of to push through that project.  Tattler readers will recall how scores of parents and community members denounced the School Board’s heavy handed shutting out of the public as the Board went about their unilateral decision to close Anna Yates Elementary School as part of the Kindergarten through 12th grade vision of the Center of ‘Community’ Life.  This was done despite assurances to the community they would be permitted to weigh in on the wisdom of closing the elementary school as guaranteed by the Measure J 2010 plebiscite that started the ECCL.  

Beneficiary of the ECCL Fake CBA

Sensing exposure to claims of fraud by the community, Mr Rubio and Mr Affeldt sought relief in the form of the warm community blanket of a CBA.  However since a real CBA would also expose the School District to the desires of the actual community and a possible ratcheting back of the K-12 model, Mr Affeldt and Mr Rubio instead delivered a fake CBA, leaving questions about its illegitimacy unanswered.  The CBA was written entirely by the School District with no actual community support, a clear subversion of the purpose of a CBA.

PARC Fake CBA

City Councilman John Bauters
Beneficiary of the PARC fake CBA.

The Sherwin Williams proposal was in trouble as developers sought to move the housing project past the new ‘progressive’ City Council majority.  Both the developer and the City Council needed help legitimizing an agreement that would cheapen the public commons as Sherwin Williams demonstrably does.  Further City Council candidate John Bauters was seeking a way to bolster his community visibility as he sought election to the Council in the months before the November 8th election.  Mr Bauters very visibly helped form the Park Avenue Resident Committee (PARC) to negotiate directly with the developer regarding specific amenities for the project, promoting it in his election campaign literature.  The agreement, sold to the public as a CBA by the developer, the City Council/City Hall, and PARC and especially Mr Bauters was not a CBA.   

Beneficiary of the PARC fake CBA.

The PARC, which was comprised of a handful of residents, operated behind closed doors in private and was specifically closed to any individuals not selected by PARC and even more egregiously, Emeryville’s premier community activist group Residents United for a Livable Emeryville (RULE) was specifically not allowed in.  Well known for promoting all resident's interests, the entire community, RULE asked to be able to join as a coalition partner but they were rebuffed by PARC.  
The discrediting exclusivity of the fake Sherwin Williams CBA did not stop the City Council from loudly proclaiming PARC as a legitimate broker of what they characterized as a real Community Benefits Agreement, especially the former Mayor Dianne Martinez, ironically herself a RULE backed Council member.  
However, explicit in the definition of a CBA is the existential democratic nature of it.  The PARC Agreement is not a CBA regardless of what is being proclaimed by interested parties.

The agreements being made in the community’s name now in Emeryville are not Community Benefit Agreements by definition.  Rather they are simple development side agreements.  There is nothing wrong with these kinds of side agreements being made; in fact both of the agreements highlighted here have demonstrably improved the resultant projects, more so the Sherwin Williams project.  Having said that, these agreements being characterized as CBA’s amounts to more than just hyperbole or bombast.  The problem with issuing fake CBA’s as the power elite in Emeryville is doing is that it comes at a cost; actual CBA’s are proportionally cheapened and real community involvement is hijacked to serve an antithetical goal, raising up of the elite and pushing down of the community.

School Board President Defends Himself, Says Board Member Acted With 'Criminal Intent'

President Affeldt Calls Colleague Board Member Patz a "Criminal"

Board's Hands Were Tied Affeldt Says; 

No Way to Keep Children Away From Danger

The other shoe has dropped in the ongoing Emery School Board fracas begun last Wednesday night after the Board President and the Schools Superintendent disregarded the testimony of 11 teachers regarding the dangerous conditions of the construction site at the new school campus for the run up for the first week of school starting last Thursday.   Board President John Affeldt upped the ante after he released a letter yesterday to parents and interested parties charging his colleague Christian Patz with "criminal intent" as a result of Mr Patz having asked for a postponement for the starting day of the school year to make sure the campus is safe for the children.  In the letter, Mr Affeldt said the Board's hands were tied Wednesday night and that's why he would not allow any such postponement regardless of any safety problems proffered by teachers or Board members.

Mr Affeldt and Superintendent John Rubio heard eleven teachers and two parents, 100% of all testimony taken, cite dangerous conditions at the still-under-construction campus and the speakers implored the School District not to subject the children to the dangers lurking there but the administrator and the president would hear none of it.  Mr Affeldt and Mr Rubio said after conferring by phone in a back room with an attorney the District uses that they had no choice; to postpone the new school opening a few days to give workers a chance to clear out the dangerous conditions would be a Brown Act violation and in no way permissible the two said.  To refute, Board member Patz said that the Board could act to forestall a dangerous situation for the children and that all that need happen would be that the Board declare an emergency and the Brown Act would thus not be violated.  However Mr Affeldt, acting as self appointed unitary executive, would not permit the Board's vote to declare an emergency of any kind.  After taking a straw vote and hearing a majority of Board members desirous of declaring an emergency to postpone the opening of the school, President Affeldt stopped a vote following the proper motion and second procedure from his colleagues.

Readers may remember last November when Board member Patz caught John Affeldt in a Brown Act violation when he hosted an illegal meeting with a quorum of Board members in the Superintendent's office before a Board meeting, an action which also drew the ire of Mr Affeldt after Mr Patz went public about it.  Similar to now, Mr Affeldt denigrated Mr Patz for his assertions but he ended up finally apologizing and admitting fault after the Contra Costa Times got a hold of the story.

John Affeldt's letter, intended for all but written to School Board candidate Ken Bukowski, for his general dispersal to his list serve, is printed below:

Ken-

I have since double-checked with a different attorney used by the district and he confirmed as did our counsel Wednesday night that my actions in refusing to let the board vote on an illegal motion was "absolutely correct" and saved the Board from committing a Brown Act violation.

The Brown Act trumps rules of parliamentary procedure on motions and seconds.  Two outside counsel have both confirmed that it would have been a clear violation of the Brown Act to take action to delay the opening of school without notice to the public and an opportunity for all to weigh in.  The Brown Act requires 24 hours of notice in nearly all "emergency situations".   Only in very rare circumstances, referred to in the Act as a "dire emergency" can a public agency take an action with only an hour's notice.  Those circumstances are defined in the Brown Act as "a crippling disaster, mass destruction, terrorist act or threatened terrorist activity". 

While there were important concerns raised by the 11 teachers and 2 parents who testified to the Board, none of them came anywhere near establishing that the ECCL site—which had been approved for occupancy by numerous inspectors and professional staff—was somehow a dire emergency warranting closure.

While you are correct that the Board votes to determine if a dire emergency exists, it is not a subjective test--that is, whatever the Board says goes--but an objective test which courts would judge against the dire emergency standard of a crippling disaster, mass destruction, terrorist act or threatened terrorist activity.  As the smooth and uneventful first two days of school evidenced, in fact, no such emergency, dire or otherwise, existed.  (Indeed, more than a few parents told me that they were surprised how good the condition of the school was given reports they saw on the Internet.)

What you have proposed, and what Board member Patz' motion sought was to disempower some 500 families in the district and the general public by denying them the notice and opportunity to weigh in on an important board action.  The Brown Act requires at least 24 hours notice for emergencies to prevent just the sort of precipitous action without notice that might have occurred here.  I am proud to have prevented the unlawful disempowerment of the rights of our school community. 

Further, I was reminded by my second conversation with counsel, that intentional violations of the Brown Act are a criminal offense.  It was clear from the meeting that Board member Patz exhibited the criminal intent to purposefully violate the Brown Act, opining cavalierly that the Board should be willing to violate Brown Act notice requirements because anyone who disagreed with closing school to Monday of this week would have no way to undo the action.  Mr. Patz persisted in his intentional disregard of the Brown Act even after being informed that our counsel had said we did not meet the dire emergency standard.  

Appropriate concerns were raised at last week's meeting and appropriate direction was given by the Board to staff to prepare the school for opening.  That was all the Board could legally do that night.  It would have violated the rights of the whole Emeryville community to have taken any action on Wednesday night--not to mention being hugely disruptive and disrespectful of hundreds of families with childcare responsibilities--to have canceled school at 11 p.m. the night before classes were slated to begin. 

As Board Chair, it is my role to decide points of procedure.  I am glad I fulfilled that role and prevented the Board from committing a Brown Act violation.   As the facts played out, it was also the best move for our students as school began on time, safely and without disruption, and our teachers did their jobs in the highest professional manner to open the new school year.

Staff Now Says 'Back-Up Beepers Can't Be Disabled'- Who Could Have Known?

Back-Up Beepers at ECCL Morph From 

'Deal Breaker' to 'No Big Deal'

As it turns out, back-up beepers on heavy construction equipment can't be silenced to satisfy noise ordinance restrictions we found out at the June 21st City Council meeting.  Who could have known that?  Emeryville's city staff?  Could they have known?  Perhaps Turner Construction, were they in any position to know?  How about John Baker, our ECCL construction consultant representative, is this something we could expect him to know?   The answer is apparently no one could have known, regardless of all the public money being doled out to know this kind of thing.

The thing is Cal/OSHA doesn't permit back-up beepers to be disabled on construction equipment.  But nobody paid to know that in Emeryville knew that.  Perhaps they're not paid enough.

The Emeryville City Council is concerned about all the construction delays at the Center of 'Community' Life.  They're so concerned that they granted Turner Construction a waiver of our Noise Ordinance so they can work on Saturdays starting in April.  Construction however is loud and neighbors have a reasonable expectation of quiet weekends...at least that's what City Hall said when the City Council passed our Noise Ordinance.
But not to worry, the new progressive City Council majority doesn't grant waivers willy nilly to developers like the previous Council did.  So this time they assured neighbors their reasonable expectations of quiet weekends will be taken seriously and so the Council required Turner to disable the loud back-up beepers on the heavy equipment being used.  All parties, the staff, Turner Construction and John Baker our construction consultant agreed this was the reasonable thing to do and so a contract disabling the back-up beepers was signed.



Oops!  Strike that!  The loud back-up beepers, a deal breaker at the April 5th Council meeting when the waiver was granted have now become no big deal they say.  By last Tuesday's meeting, concern over beepers had all changed.  Now Turner can beep away says our City Council and they still get their waiver.  What happened?  The City Council made no attempt to quantify the noise from back-up beepers, formerly determined by them to be excessive, citing instead the need to finish the ECCL project.

City Hall now holds that residents won't be told what constitutes a reasonable expectation of quiet weekends, however with regard to its imbroglio over back-up beepers at the Center of 'Community' Life, Councilwoman Jac Asher spoke for her colleagues, shifting blame to John Baker, our Turner Construction go-between working under contract ($1.2 million) with the City.

Ms Asher put it bluntly to Mr Baker, "Our staff takes the blame for being unaware of the OSHA regulations.  What I don't understand is why were you not aware of the OSHA regulations?  Isn't construction and management of construction projects what you do and what you're being paid for?"

John Baker's haltingly staccato response, unclear in its presentation, makes clear what's going on between the City of Emeryville, Turner Construction and Mr Baker himself as the ECCL construction struggles across the scheduled August finish line.  By way of an answer to Ms Asher's charge, he told the Council, "What, what occurred is when we, we started doing the Saturday work, there was some equipment that when, when, when, uh, Turner went to disable the back-up beepers, uh...we were not aware."

John Baker, Emeryville's Construction Consultant for ECCL
On the Job
"What, what... uh when, when, when, uh... we
were not aware" = $1.2 million

Community Swimming Pool: Turner Construction Misses Deadline for Opening Day

Community Pool Fails Health Inspection

Opening Delayed Again

Emeryville's community swimming pool, plagued by missed deadlines and cost overruns will not open today as had been planned owing to a "failed health code inspection" and other delays by builder Turner Construction according to the City Manager.  Today's planned grand opening gala of the community pool has quietly now come and gone with nary a wet toe and without a peep to the community from the City or the School District as to an explanation other than individual emails sent to parents and community members that had signed up for lessons and general use.  The City now says it is hoped the pool will be ready by early June but they're not committing.

City Manager Carolyn Lehr told the Tattler the City will honor agreements as codified by policy at City Hall as far as refunding any fees paid by community members that cannot be used.  Additionally she volunteered that any new costs associated with the most recent delays will be born by "responsible parties" as a way of differentiating previous cost overruns that have been absorbed by Emeryville taxpayers up until now.

Emeryville's Community Pool
Taken before the remodel began
several years ago.

The community pool remodel has proven to be a first rate boondoggle for the City and the School District with costs more than 100% over budget and a timeline now more than a year behind schedule.  The pool, part of the community use part of the Emeryville Center of 'Community' Life (ECCL) was separated out of a Guaranteed Maximum Price (GMP) agreement for ECCL between the School District, the City and Turner Construction, set up to prevent this sort of overrun.  The fact that the pool was not included in the GMP agreement has left taxpayers exposed to Turner cupidity as the builder seeks a way to recoup losses incurred on the rest of the project, critics have charged.  As protective of the public coffers as the GMP has been (insofar as it has), the agreement does not preclude Turner from clawing back their expenses by lowering quality on the rest of the ECCL project, a tactic they call 'Value Engineering', a tactic they have made liberal use of it should be noted.

Besides being more than a year late, Emeryville's community pool remodel has now cost more than $2 million; double what a pool the same size would cost built new, according to swimming pool contractors the Tattler contacted.  The Emery Unified School District has been the public agency responsible for overseeing the community pool with the City fulfilling its role as benefactor for the ill fated project.

Our Galling Emery School Board President

School Board President Gets Schooled

Affeldt's Fake Mandate

Opinion

School Board President John Affeldt
Less than 50% of Emeryville voters
cast their ballot for him.
He considers that a mandate for the 
ECCL that he can use 
against dissenters.

We have joined with parents and residents dismayed over School Board President John Affeldt's heavy handed tactics as he has shut down dissent over the closing of Emeryville's elementary school in obeisance to the 'K-12' model for the Center of 'Community' Life (ECCL).  Recent statements, arrogant and impolitic in their nature proclaimed from the dais by President Affeldt have left many stunned, us included.  One remembers one didactic Marie Antoinette-like comment made from him that citizens are free to speak for their three minutes at Board meetings about saving Anna Yates Elementary School but that it would be to no avail; Mr Affeldt had already made up his mind; he will close the popular school, he told a shocked audience last spring.  It was but one take down of citizen engagement by Mr Affeldt.

This kind of blinkered bullying has left us baffled (even though he later apologized for the conjuring up of Ms Antoinette); what would drive a public school board president, hired to listen to parents and citizen's concerns, to be so harshly dismissive and unwilling to countenance differing views, especially by those of parents?

A recent missive, penned by President Affeldt in the form of a comment to a critical story about the Center of 'Community' Life in a Columbia University Education website, the Hechinger Report, sheds much light on Mr Affeldt's perplexingly tyrannical tenure as Board President.  As he discredits critics as "the vocal minority", it would appear, John Affeldt has taken much by way of a demand for public deference owing to what he sees as a mandate by the Emeryville electorate.

Mr Affeldt's written comment to the Hechinger Report reveals a lot; he makes some bold claims about public support for the Center of 'Community' Life and even more hyperbolic claims about his campaign support.  The Hechinger report moderator and engagement editor corrects the erroneous  claims made by Mr Affeldt, and we take him on over his talk of a mandate:
From the Hechinger Report comment section on the story on the ECCL:

John Affeldt 

Ms. Spencer, you are not correct to say that the two new members of the City council campaigned against the ECCL plan. I endorsed both Dianne and Scott with the assurance that they were supportive of the direction the City and the school district were pursuing together and, as well, they endorsed me in my school board race where completing the ECCL project was a key platform piece. Since the election, both council members have worked positively moving forward. In my own election, 97% of voters (approximately1255/1286 voters) supported me and my platform in support of the ECCL project. The other newly elected school board member, Donn Merriam, is a school architect who also ran on making ECCL work and who has consistently supported the effort.

 

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Reply

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  Lillian Mongeau Moderator  

  
  

  Hi John,

  I apologize for the delay in responding to you and publishing your comment. I've reached out to Kyle Spencer our author on this story to ask her about her conversations with the two new members of the city council, Diane Martinez and Scott Donahue.

  Here's what she said:

  "Dianne Martinez and Scott Donahue both spoke to me on the record saying they had concerns about the city's current ECCL plan. They were also reported saying this in at least one interview during the lead up to the city council election."

  Thank you for reading and for taking the time to comment with your concerns.

  Best,
  Lillian Mongeau
  Engagement Editor

But that is not the only piece of misinformation from President Affeldt's comment.  If we look at his platform from his ballot statement as he ran for School Board:

“My education and qualifications are: I am Vice-President of the Emery Unified School District Board. My son is beginning his fourth year at Anna Yates where I was vice-chair of the School Site Council before joining the Board in 2012. After graduating with honors from Stanford undergrad and Harvard Law School, I became an attorney at Public Advocates. For 23 years there, I have worked to improve educational opportunities for low-income students and students of color in California. I have twice been recognized by statewide publications as an Attorney of the Year (2005 & 2010) for this work. As a lead counsel on one landmark case, I helped negotiate a 2004 settlement with the State guaranteeing California’s students sufficient instructional materials, decent facilities and qualified teachers, particularly for English learners, securing over $1 billion to support these requirements. I am currently lead counsel on another case, challenging the State for grossly underfunding California schools. On the Board, I have worked to improve public accountability, parent and student engagement, and communication with teacher leadership. We are building a new full service community school to integrate education, health, and community services that stands to serve as a national model. I ask for your support in continuing this important work.”

The Center of 'Community' Life is not a key platform in his campaign.  He does not mention the ECCL by name, nor does talk about closing Anna Yates Elementary School.  He talks about a community school and national models, but that is after talking about accountability, communication, and engagement.  How has he done on that front?  He gets an 'F' at our school.

Let’s look at the 97% mandate that he claims the election gave him.  Donn Merriam, who did run on an ECCL platform, received 730 votes, only 30 more than former Board incumbent Miguel Dwin, the strongest proponent of the ECCL.   John Affeldt on the other hand received 1,255 votes* or 97% of the possible 1286 possible votes.  But why 1286?  In Emeryville, 2,524 people voted* for gubernatorial candidate.  For the school bond measure, 2,279 people voted*.  This means that less than 50% of the people that voted cast their ballot for John Affeldt.  Even if we just look at the number of people that voted for education issues (the parcel tax), Mr Affeldt received 55% of the vote.  Donn Merriam, again who campaigned as a proponent of the ECCL, received less than a third of the vote.  Miguel Dwin, the loser, even fewer.

  

The election was not mandate for the ECCL (or for Mr Affeldt), but a reflection of the community’s tepid interest in the schools of Emeryville. The ECCL is over budget, late and just as unpopular as ever.  If Mr Affeldt had ever shown any interest, even intellectual curiosity about public opinion over the ECCL instead of using his position to quash dissent, he might have been more aware and he might not have issued such impolitic and harsh rebukes against the public he would have to later apologize for.  Gall is a word that is apropos at this point.

   

*from the Alameda County Registrar of Voters.