Emery-Go-Round Eligible To Receive $4 Million Grant

Emeryville's TMA Stands To Benefit

Emeryville's business/resident funded free bus shuttle, Emery-Go-Round is poised to pick up a nice financial boost if it partners with the Bay Area Air Quality Management District to try to reduce vehicle use.
Re-printed from the Daily Californian:

Air quality district offers $4 million to promote decreased vehicle use

By J.D. Morris | Senior Staff

jmorris@dailycal.org
Monday, August 29, 2011 at 9:34 pm


The Bay Area Air Quality Management District, the regional government agency that regulates sources of air pollution, is offering $4 million for ride sharing or shuttle services that promote decreased vehicle use.
As part of its efforts to diminish local air pollution, the air district will review applications and distribute the money on a first-come-first-serve basis beginning Thursday. Only public agencies are eligible.
“These are ride sharing projects that are meant to fill in existing needs … to make it more convenient so you can get on other buses, ferries and make it to a route station,” said air district spokesperson Ralph Borrmann.

Funding is made available through the district’s Transportation Fund for Clean Air, a grant program sustained by a $4 surcharge on vehicles in the Bay Area. The program generates about $22 million in revenue each year.
Berkeley does not have any projects that would be eligible for the funds, according to Farid Javandel, the city’s transportation manager.

The same goes for BART, which does not have the resources to manage shuttle services, according to BART spokesperson Luna Salaver.
“Instead, we are working with other entities to encourage them to apply for these grants,” Salaver said. “Once a grant is established, then we help promote the connections.”
One program that may be eligible for a portion of the $4 million offered by the district is the Emery Go Round, a free shuttle that connects Emeryville passengers to the MacArthur BART station in Oakland.
But Roni Hattrup, executive assistant for the Emeryville Transit Management Association, which manages the shuttle, said the association has yet to identify what projects it would seek to fund through the program.
“We have some ideas of what we want, but we have to determine if we’re asking for money for new buses or if we’re asking for money for bus shelters or something like that,” Hattrup said.

Even if Emery Go Round does decide to apply for the funds, it may not pan out because the association is a nonprofit, not a public agency. Still, Hattrup said the program may try to contract with the city of Emeryville, which she said would likely act as a “pastor agency” in order to gain eligibility.
Last year, when the district provided similar grants, it funded about 11 projects in another attempt to cut down on vehicle use — which accounts for over half of the Bay Area’s air pollution, according to Borrmann.
“The overall goal is to reduce air pollution and to encourage people to take transit by filling in the needs where they exist so people can make it to major buses, trains and ferries,” Borrmann said. “It makes it easier for residents to shift to transit and ride share and reduces the number of vehicles on the road.”


J.D. Morris is the lead environment reporter.

City Attorney Ballot Will Be Challenged After The Vote

Attempt To Deep Six Voters Will:

Councilman Bukowski Charges City Attorney With Conflict Of Interest

November Ballot May Not Have Effect

Councilman Ken Bukowski has revealed what he says may be an illegal act perpetrated by City Attorney Mike Biddle meant to thwart Emeryville voters should they decide to get rid of the City Attorney in a ballot initiative in November.  

Mr. Bukowski alleges that the City Attorney may have lied to the council to assure the failure of the ballot measure against him and improperly used the office of city attorney to influence the council to adjust the employment contract he has with the city, making the outcome of November's election moot.

At the heart of Mr. Biddle's argument against the looming voter initiative is his insistence that he is safe from the ire of the electorate since he is technically not a city employee. Rather, according to Mr. Biddle's novel reasoning, he is an employee of MESA, an arcane Emeryville management authority.  Mr Biddle claims that his connection to MESA renders impotent any ballot measure referring to him as city attorney.

Councilman Bukowski, meanwhile asserts that he has found a "fatal flaw" in Mr. Biddle's creative legal opinion, rendering the MESA employment argument bogus.

According to Mr. Bukowski, when former Berkeley City Attorney Manuela Albuquerque first introduced the MESA employment theory before the council on Mr. Biddle's behalf, an employment contract between Mr. Biddle and the city was in existence and in force. Mr. Bukowski posits that Mr. Biddle subsequently took that contract back to the council and requested the MESA Board (the same people as the city council), approve the contract.  Such a move would change Mr Biddle's employer to MESA and give credence to his argument that he is not employed by the city.

Councilman Bukowski says the subsequent action is improper because Mr. Biddle used his power as City Attorney to influence the decision of the city council to change his employment agreement so as to be protected from a potential adverse citizen voter outcome: a conflict of interest.

In addition Mr. Bukowski charges that Mr. Biddle at the same time also asked the city council, acting as MESA board, to retroactively revise, amend and approve all of his prior expired employment contracts with the city to erase any evidence that he works for the city or ever did, cementing his MESA ties and flummoxing any attempt by voters to remove him from office.

The Management of Emeryville Services Authority (MESA) was set up in the 1990s by the city council to help city employees avoid social security taxes due to provisions in the federal tax code regarding municipal employees.

Council member Jennifer West also seemed dismayed by the City Attorney's MESA employment argument, calling it a "legal tactic".  She told the Tattler, "I don't see any practical distinctions between employment by MESA versus the city of Emeryville except for the social security implications."  She agreed the citizens ballot initiative vote, should it turn out against Mr Biddle will be ineffective; "In a legal interpretation, this ballot initiative will have no effect" she cautioned.

Ms West however inveighed against her colleague Ken Bukowski and the whole City Attorney measure, "This is one city council member's attempt to circumvent the [council] majority."  She added, "He [Bukowski] has been ineffective in getting what he wants, which is to eliminate the City Attorney.  He's manipulating Emeryville voters with this ballot measure."

Attempts to contact the City Attorney, Mike Biddle were unsuccessful Monday.

Secret News Reports Toxic Site Recalcitrance

Re-printed from the Secret News:

Is It Safe?

August 27, 2011

By Tracy Schroth

Sherwin Williams asks for extended work hours (evenings, Saturdays), while refusing repeated requests for testing

Sherwin Williams has spent the past 45 days cleaning up the mess it made during its heyday decades ago, when it was busy “covering the world.” And it’s quite a mess. More than 8 acres of land at the corner of Sherwin and Horton streets in Emeryville is contaminated with arsenic, lead, and solvents like benzene.
While the clean-up –- reportedly just one-third of the way done –- is good news, the bad news is the clean-up is generating dust – a dust that residents say is sticking to their cars, blowing into their open apartment windows, and leaving a layer of grit on their morning newspapers...
                                                                                                            (MORE click here to continue)

Pixar's "Bike Path To Nowhere" Opens

'Bike Path To Nowhere' Dubbed 

'Joseph Emery Park'

Seven months behind schedule, Pixar finally reveals the bike path formally known as the 'bike path to nowhere', now called Joseph Emery Park.  The paean to bad city planning and abject politics opened Wednesday without fanfare.  The path, or park, won the enmity of Emeryville's Bike / Pedestrian Committee last year when the city joined with Pixar and broke off negotiations with the unanimous committee over the contentious $700,000 corridor.
Below is a partial re-print from a December 10, 2010 Tattler story on the circuitous history that resulted in a bike/pedestrian committee voting against a bike/pedestrian path:
  

The strange story of the "bike path to nowhere" begins in the 1990's with a planned path extending north from City Hall along the trace of an old rail road spur a half block east and parallel to Hollis Street.  Starting at 45th Street and heading north, the old rail line has been turned into an alley known as Spur Alley.  Spur Alley was intended as a bike path but it has been instead turned over to cars in subsequent years because the city hasn't mustered the political will and because it never required the section heading south to City Hall at Haven Street to be built when Pixar took over the vacant land in 2000.  Instead, the city permitted Pixar to jog the incipient path over to the east two blocks to Watts Street owing to Pixar's need for secrecy.  This change happened just after the Bike Plan was first completed and was changed by a vote of the council.Then Pixar wanted to take possession of Watts Street and they were given the street by the city, so again the city permitted Pixar to jog the path east, this time to Emery Street.  This required another Bike Plan change.  Then Pixar planned a campus expansion so the city gave them Emery Street and granted Pixar permission to jog the path over to the east one last time to it's final resting place behind the I-Hop.  This last change also required a change to the Bike Plan.

Got all that?

The Pixar main gate is aligned with

 what used to be Watts Street

By the time of the last change when Pixar took possession of Emery Street, the Bike/Pedestrian Committee had enough of jogging this path to the east.  Committee members expressed dismay that the path was now so far shifted to the east that the original path was rendered useless for biking or walking.  The committee subsequently voted unanimously to let Pixar off the hook for building the path but asked that they give a cash payment to the city for the amount of money the path would have cost them to build.  The committee instructed the city to use the money to upgrade biking and pedestrian facilities throughout the city on a "as needed" basis.

Strangely, Pixar would have none of that and announced it planned to build the bike/ped path anyway, the committee be damned.  The city council ceded to Pixar's desire and the path, by now unofficially dubbed the "Bike Path To Nowhere" after the famous bridge in Alaska, is nearly completed.

The path may be seen here: Pixar Study

From The Fun Loving People At Caltrans

What's The Matter With These Damn Kids These Days?

Caltrans shows who's boss.
Re-Printed from KGO-TV:

Caltrans crews demolish skate park 

under I-580

Thursday, August 25, 2011

TAGS:

emeryville, caltrans, I-580, oakland, east bay news, terry mcsweeney

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BORDER OF EMERYVILLE, OAKLAND (KGO) -- A labor of love by a group 

of athletic young people was torn down under I-580 at the Oakland,

 Emeryville border. Caltrans says a skateboard park there is illegal. 

The skateboarders say it keeps kids out of trouble.

Alex Fatemi took one last ride around a skateboard park that he and 

his friends built by hands a couple of years ago. He can't understand 

why Caltrans crews are tearing it down Thursday morning.
"We have been painting over the graffiti and we have cleanup days 

where we pick up the trash. I don't know why they don't see that as a 

positive push for something good," said Fatemi.
But the state doesn't see it that way.
"The harm in letting it go is that number one it sets a precedent, and 

number two there are liability issues, and there are crime issues, 

homelessness issues, all sorts of issues that arise," said Caltrans 

spokesperson Bob Haus.
There had been hope of leaving the spot open and perhaps working 

out a deal with Caltrans. But skateboarders say, with redevelopment 

agencies on the way out and the economy what it is, officials in 

Oakland and Emeryville were unable to come up with the money 

for the $5,000 per month lease that Caltrans wanted.
Fatemi took his petition of 600 signatures to plead his case with 

Caltrans crews one more time, but the fate of the park was sealed.
"I feel like something has been taken from me that I cherish so much. 

I was in love with this place and now someone is going to kill it. 

They are going to kill it, it sucks," said Fatemi.
CHP officers came in to tell Fatemi that the ride was over. When 

Fatemi was asked by ABC7 News where he would go from here, 

he said he would take his board to the streets.
Caltrans said it is negotiating with a billboard company for the land. 

There is another skatepark nearby that will also be taken down 

by Caltrans.

Food Truck Ordinance Forces Businesses Out

Emeryville's Food Truck Crackdown Drives Out Business

Check out the back story in the August 30, 2010 edition of the Tattler here.
The fall out from the lobbying effort by by politically connected restaurant concerns in Emeryville is re-printed from the East Bay Express:

TUESDAY, AUGUST 23, 2011

Primo's Parrilla Being Reborn as a Restaurant

NEWSJohn Birdsall —  Tue, Aug 23, 2011 at 8:46 AM

Javier Sandes is arguably the most dynamic food vendor ever to smoke up an Emeryville street. In May 2010, Sandes launched Primo’s Parrilla, anasador — or grill — like the ones in his native Argentina. Over a mix of almond wood and mesquite, Sandes grilled chickens and tri-tip, served up with chimichurri sauce.

Then things got prickly for street-food vendors in Emeryville, as a handful of brick-and-mortar restaurant owners raised concerns with the chamber of commerce — and ultimately the city council — about what seemed like a poorly regulated explosion in mobile vending. Emeryville ended up revising its mobile-vending ordinance this year, expanding distance requirements between vendor and vendor and vendor and restaurant. Despite the changes, Sandes and Sere Peterson (his partner in business and otherwise) had already seen the writing on the wall.

• JAVI'S PARRILLA/FACEBOOK
• Javier Sandes, in an earlier al fresco incarnation.

Because it didn’t operate strictly out of a truck, Primo’s Parrilla had been a particular focus of concern by some restaurant owners — not only were there permit issues for cooking over an open flame, but they charged Sandes was essentially setting up a de facto restaurant on the street, not merely lifting a flap to sell Korean burritos or falafel sandwiches. It seemed like unfair competition.

In January, Sandes and Peterson killed Primo’s, deciding to focus on opening a brick-and-mortar of their own in Oakland. “We didn’t want to be in a war with someone,” Peterson told WTF in a recent phone interview.

Last week Sandes and Peterson sent Facebook friends of Primo’s Parrilla an update in the form of a website link, officially launching Javi’s Parrilla, name of the restaurant, eventually. “It was bittersweet to close Primo’s,” Sandes wrote on the Javi’s website, “but I felt it was good for me to work towards opening a brick and mortar restaurant — a restaurant that doesn’t require a parking spot (thanks all of you who moved your cars around to squeeze us in at the park!) and won’t require jumper cables! Kidding.”

Word of Sandes’ return roused existing fans. “Right away we picked up a hundred fans,” Peterson said. “We’re pretty excited.”

As for locations, Peterson said they’re still scouting. “We’ve got a few places in mind in Oakland,” she said. “We definitely want to be an Oakland-based business, even when we started Primo’s, but grilling on the street was going to be impossible here.” The couple have their eye on North Oakland, though they’re also considering Uptown — not a bad choice, since they’re hoping to be in a neighborhood that can support lunch, dinner, and late-night service on weekends. Finding a space is a bit trickier with that open grill and all, plus Sandes wants a place big enough to allow interacting with customers as he grills — just like he did on the street — instead of being walled off in some fluorescent-lit kitchen.

Plans call for expanding the menu from the Primo’s days, adding different cuts of beef and choripan (a traditional Argentinean sausage sandwich) to Sandes’ signature chicken and tri-tip. Peterson expects to open the doors in 2012, wherever Javi’s roofed asador ends up finding a home.

Meanwhile, until the restaurant opens, Sandes is continuing to cater private parties and public events like this year’s Eat Real Festival, September 23-25 in Jack London Square.

Get in touch at John.Birdsall@EastBayExpress.com, and follow me on Twitter @John_Birdsall.

Council Treachery On Business Tax Cap

Councilman Kurt Brinkman on business tax 

council double-cross:

"NO COMMENT"

The city council promised to let the people decide on the November ballot about our big business friendly tax cap but then reneged after they killed a grassroots citizen drive to rescind the unfair tax cap.  The council has taken away the people's right to decide for themselves about this corporate give-a-way tax scheme.

Kurt Brinkman:
Emeryville citizens
must not be allowed
to vote on this.

On July 19th, Council members Kurt Brinkman and Nora Davis convinced their colleagues to reverse a unanimous council vote made in May, to allow Emeryville citizens to decide for themselves about the infamous business tax cap.  The cap, a codified limit that means the most companies pay in tax annually to the city is $117,000 or .08% on the maximum gross receipts of $146 million, is unprecedented in the Bay Area and leaves the smaller businesses in town on the hook for a much higher rate.

The previous unanimous council vote on May 17th, stopped an incipient citizen's petition drive to get the issue before Emeryville voters in November lead by Emeryville resident Scott Donahue and others.  Mr Donahue noted after the unanimous council vote, that because the council had agreed to take up the cause and place the issue on the ballot by fiat, there was no need to continue with the citizen's petition and he withdrew the petition drive.  However, two months later when it was too late to restart the petition drive, Mr Brinkman and Ms Davis moved to reverse the previous council decision and disenfranchise the citizens in November.

Nora Davis (undated photo):
Glad to have derailed
the citizen's drive to 

rescind the tax cap.

Council members Brinkman and Davis never explained publicly why they reversed themselves and why they took away the citizens right to decide for themselves.  Councilman Kurt Brinkman sat down with the Tattler recently to tell his side:

Tattler:  Why do you think it's important for Emeryville to keep the business tax cap?

Brinkman: "Like it or not, businesses shift revenue to avoid taxes.  It happens all the time.  From a revenue standpoint, if we were to get rid of the cap entirely, we might lose everything".

Tattler:  Meaning these corporations might be incensed by such a move and seek their revenge by ordering their accountants to show no taxable Emeryville income?

Brinkman:  "It could happen".

Tattler:  Nevertheless, Emeryville is the only city in the Bay Area with a tax cap on business.  Additionally, the tax rate for receipts under the cap and subject to levy is lower than its neighbors.  If you're concerned about scaring away business, why can't we raise revenue like every other city by getting rid of the cap and then simply keep the tax rate (now at .08%) lower than our neighbors?  Can't we have a low flat rate for everybody and attract and retain business?

Brinkman:  "It's important to separate from other cities.  We need to make sure Emeryville remains a marketable, viable city"

Tattler:  Right now the business tax cap only effects two or three businesses, Pixar especially.  Aren't you concerned that Pixar pays such a pittance with the cap, essentially a much lower tax rate than other businesses in town?

Brinkman:  "Well, if we got rid of the cap it would really have no effect on Pixar, they only paid $8000 last year to Emeryville".

Tattler:  So to protect $8000 from Pixar, you're going to keep this regressive cap in effect?  We're going to get even less from them if we get rid of the cap?  What about other large corporations in town that reap huge benefits from the cap like Novartis?

Brinkman:  "Look, the cap is necessary"

Tattler:  Previously you voted to let the people decide about this.  So why now reverse yourself? Why not let the people decide?  Why did you and your colleague Nora Davis lead a move to disenfranchise the people?

Brinkman:  "No comment".

Scott Donahue, the initiator of the withdrawn citizen's petition on the business tax cap agreed with Mr Brinkman that Pixar, for one, has gotten very creative with sheltering their money from City Hall's grasp.  Hinting that an audit of Pixar's books might be in order, Mr Donahue said, "Multi-national corporations are always going to find a way to realize their revenue where ever it is most beneficial to them. So a cap on Pixar will probably not have much effect on them, as they demonstrated with their $108,000 tax refund they recently got from the city".
However, Mr Donahue said that the city shouldn't allow itself to be so manipulated and any creative fiscal legerdemain by Pixar should not be held up as a reason to give up on tax fairness; to wit he noted, "We ought not have a special law to the benefit of only one or two corporations in town, it's essentially a handout to multi-billion dollar corporations that's totally unnecessary.  The rest of Emeryville's businesses are in effect subsidizing these few large corporations".

Tattler Resumes Production After Hamptons R&R

Back at it after August recess.

Letter To The Tattler: Michael Webber

Resident Michael Webber Responds To Council Action: City Attorney Initiative

Emeryville resident, Michael Webber responds to the Tattler story on Monday August 8th about the City Attorney initiative and the Monday night council meeting; a meeting he attended.  Michael Webber is planning to throw his hat into the ring and run for city council in November.  Here is Mr Webber's letter verbatim:

Thanks for the accurate reporting. 

The special independent attorney told the Council that based on recent Supreme Court decisions, the City would very likely lose a lawsuit brought to place the measure on the ballot if the Council refused to place the measure on the ballot - the independent attorney repeatedly mentioned that placing the measure on the ballot is a "ministerial" duty which means it is not an issue, at this stage, that calls for administrative judgment or discretion. The independent attorney further advised the Council that not only would the Council most likely lose such a lawsuit, but would also have to pay attorneys' fees to the proponent of the initiative.

The independent counsel then advised the Council that if they opposed the initiative measure, the proper time to attack it was via lawsuit either after the measure went on the ballot, or via lawsuit after the voters had voted on it. Placing the measure on the ballot by no means indicated the Council supported it, only that the Council recognized their legal duty to do so.

During the initial public comment period I then asked the Council to please defer their legal challenge until after the election since there was no need at this stage to spend limited City funds to oppose a measure that may or may not win.

It appeared to me that both Kurt Brinkman and Jennifer West were looking for any excuse to publicly oppose the measure, but only if they were certain that the majority of the Council would vote to put the measure on the ballot so the City wouldn't get sued, lose the suit, and pay attorneys' fees (a senseless waste of resources). Once they were assured that they wouldn't be stirring up real trouble for the City, they both voted against even PLACING THE MEASURE ON THE BALLOT. IMHO this is a breach of their ministerial duty to the CIty (placing the measure on the ballot was a ministerial, not discretionary, act per the City's own specially hired independent counsel) and reflects their own lack of understanding of ministerial and discretionary acts, something that is Civics 101.

The City Clerk's presentation then moved to the costs/benefits of in-house (staff) attorney vs. contracting out to a law firm.

At this point I have to be purely opinionated and tell you that I have never seen such a lame, poorly-conceived, one-side "promotional piece" in my professional career.

Rather than go out with RFP's (requests for proposal, essentially asking municipal law firms to bid for the business), the City Clerk tallied up the number of hours spent by current city counsel, and extrapolated how much those same hours would cost the City if spent on outside lawyers.

Well of course you will always lose that type of pre-determined mathematical battle. In-house hours, no matter how egregiously over-paid, will always cost less than the SAME hours spent at outside law firms.

But what is MISSING from such a simplistic approach is the the fact that you have to pay inside counsel for every work hour, rain or shine, but with outside counsel you only pay for what you need. In addition, outside counsel, when properly managed, does not "churn" hours with inexperienced associate "research," I would rather have one hour of "good" time (at a higher rate) then 10 hours of "wheel spinning" by inside counsel who may not understand the heart of the issue the way a specialized outside counsel does.

Brian [Donahue], during comments, made the interesting point that in the current recession, with the building boom over, maybe inside counsel won't have as much to do as before, and no allowance has been made for that slowdown in calculating the relative costs of inside vs. outside counsel.

I was horrified to hear - did I hear correctly? - that Mr. Biddle is apparently not an "exempt" employee who does not get overtime pay. The City Clerk let drop a comment that Mr. Biddle (did I hear correctly, I want to get this right?) is currently billing the City an additional 30 hours per week beyond his normal 9-5 work day week (did I hear that right? what happened to 8-5? I have to assume that Mr. BIddle, as salaried employee, gets an hour off for lunch - does that mean he really only has a 35 hour work week? cushy).

But the most telling point, the real elephant in the room, was the slide that showed that Mr. Biddle is part of the "executive leadership." My fear has long been that he usurps the discretion of both the City Manager and of the City Council. For the first time that I have seen, Mr. Biddle has been publicly acknowledged to have an "executive leadership" position. But I thought he was an advisor, not a leader? 

Ken [Bukowski] was accused of having a vendetta against the City Attorney. I don't know about Ken, but I certainly would want to replace the existing City Attorney by any legal means, if I had been deliberately excluded from information, reports, and advice. Those two (Ken and Biddle) don't have to LIKE each other, but the City Attorney SIMPLY CANNOT be allowed to selectively counsel SOME Council Members more fully and more timely than others. THAT is why I signed Ken's initiative.

During the second public comment period, I objected to the obviously one-sided, biased City Clerk's report on costs/benefits, and also pointed out that the Pollard wrongful discharge case, besides ruining a long-time employee's career, cost the City over $4 million dollars, and wondered where Mr. Biddle was during that whole fiasco - if the job of the CIty Attorney to to provide "in-office" assistance, why didn't he listen to Ms. Pollard's complaint and give it the fair hearing (and her the fair treatment) it deserved?

I want to thank Ruth Atkin for voting to have the special Council meeting to allow this to come before the Council in time for the November general election, and to thank Mayor Davis, who despite clearly detesting the measure, electing to do her civid duty to place the measure on the ballot.

And of course the greatest thanks to Ken who tirelessly fought an uphill battle to single-handedly put this measure on the ballot.

~William "Michael" Webber

in the interests of full disclosure, I hope to file nominating papers this week to run for City Council. Yes, I believe it is time for a change.

Council Finally Moves To Allow City Attorney Ballot Initiative

Brinkman & West say NO:

Council Majority Will Allow People To Decide About Their City Attorney In November

Tonight, the city council voted 3-2 (Brinkman & West dissenting) to finally allow the people of Emeryville to decide for themselves in a November ballot whether their City Attorney should be kept or whether city legal services should instead be subcontracted out as some other cities do.  The vote came down after four council members (Brinkman dissenting) voted to certify the successful City Attorney petition drive as forwarded from the Alameda County Registrar of Voters.  The decision about the City Attorney is now in the hands of the people of Emeryville.

The council by way of the City Manager*, ironically, contracted out the services of former Berkeley City Attorney Manuela Albuquerque to advise them in the decision.  Ms Albuquerque cautioned the council against disenfranchising the people but called the City Attorney plebiscite an improper "constraint on constitutionally granted council power".  

No Legal Effect
A major finding of impropriety regarding the initiative according to Ms Albuquerque centers around the fact that the Emeryville City Attorney, Mike Biddle doesn't actually work for the city proper but instead he works for a joint power authority set up by the council to allow Mr Biddle and other would be employee staff members to avoid paying social security taxes.
Council member Bukowski, the initiator of the ballot initiative called the ruling by Ms Albuquerque disingenuous, "To say that the City Attorney doesn't work for the city is a mere technicality" he said.
Ms Albuquerque said however since the City Attorney doesn't work for the city, the ballot initiative has "no legal effect" and that if the people vote to discharge Mr Biddle in November, the council could ignore the people's verdict.

Councilwoman Jennifer West joined councilman Kurt Brinkman in an attempt to stop the popular vote, calling the whole affair improper, "It ties the hands of the council to make prudent decisions" she said before casting her NO vote.

The council majority agreed that it is less unseemly to move to stop the people's will after the November vote if they have to than to shut down the vote entirely.  Councilwoman Nora Davis said the initiative is "irresponsible and inaccurate" and that people were "conned into putting their names on the petition" but she added she has "confidence that the Emeryville voters will make the right decision".  She called the initiative part of council member Bukowski's "vicious vendetta against the City Attorney".  All four of Mr Bukowski's colleagues on the council have said they will stand by Mr Biddle and they will work to try to defeat the measure in November.

*Correction: The story reported only the council hired the outside attorney until 11:17 am Tuesday 8/9/11.  Council member Bukowski noted to the Tattler that it was the City Manager that hired Ms Albuquerque.

Letter To The Tattler: Council Member Ken Bukowski

Council Member Ken Bukowski Responds To Colleague Brinkman's 7/29 Letter

The following is verbatim from council member Ken Bukowski submitted for posting here:

The letter from Kurt Brinkman to the Tattler is amazing.

This is perhaps the greatest example of American Hypocrisy.

If these comments are about the City Attorney Measure, that is what he should be talking about.   Brinkman claims the City Attorney Measure gives me unfair advantage...?   My re-election campaign is another subject.  I think voters will make an independent decision on the Measure. This measure was created to change the way we handle our legal services. 

As a former Member of the Alameda County Waste Management Board, I instituted a process to evaluate their legal services. The Board solicited bids from outside law firms specifically designed to handle all the legal services, for local government agencies.  The proposals were impressive. They have systems of accountability which I didn't think could ever be possible. I realized that is what we need. 

The City Council would not entertain requests for proposals from outside law firms to explore any possibilities. I have been asking for hourly accounting of his [City Attorney Mike Biddle] time, and only Council Member West was willing to implement it.  They say he is busy, but I have no way of knowing what he is actually doing,  With a Staff employee, trying to implement accountability is next to impossible, especially when he works directly for the City Council.  Even after the Voters say they want to look at the issue, they really don't want to let the voters decide.

Perhaps the biggest problem which prompted this ballot measure, is how the city attorney uses city funds to protect his job.  When I wrote a memo criticizing the City Attorney's performance he threatened to sue the city, and he used city funds to hire outside legal counsel in connection with that effort.  And again, when this ballot measure was created, he hired outside legal counsel to stop it, and when that didn't happen, he used outside counsel to create a deceptive analysis of the measure.  The Summary of the Ballot Measure says the City Attorney does not work for the City of Emeryville.  Who is paying his generous wages and benefits?  My colleagues don't seem to be bothered with a blatant conflict of interest. I think it is unacceptable and must be stopped.The City Attorney's Office is unprofessional, because he does not treat everyone the same, and that's a problem.

Every issue Council Member (and Mayor) Nora Davis supports, the city attorney is right there to back it up. Every member of the council should have equal opportunity with the city attorney. Mayor Davis and Council Member Ruth Atkin like it this way, it gives them more power over him. They keep giving him more money.  The City Attorney asked for an additional $190,000 in severance pay when this measure was created. Mayor Davis and Council Member Atkin forcefully argued to give it to him. We can thank council members Brinkman and West for not meeting the last minute demand. That is on top of the existing NINE months severance pay, at $263,000 per year. 

An anonymous person said, Brinkman will not cross the City Attorney. He does business with so many people in town, there may be some conflicts of interest. The existing structure does not allow the city manager to criticize or evaluate the City Attorney. That is a mistake. He should have the most to say.  The City Manager should have oversight, and definite control of how the City Attorney spends our money. These are some of the reasons this measure was created.

Brinkman says we are elected to carry out the wishes of Emeryville residents. Yet, when you receive a certified petition from 579 registered Emeryville Voters asking you to put a measure on the ballot in November, he says NO.  His vote at the  July 29th Special Meeting said he is not willing to have another meeting on August 8th to put this measure on the ballot.,  However, a majority of the council voted to have the August 8th Meeting, to put the Measure on the Ballot.What Council Member Brinkman is complaining about is democracy in action. This measure forces the operation of the city attorney's office into the public light.   Ignoring the will of the voters to place any measure on the ballot is a real indication change is really necessary.  I want to thank Kurt Brinkman for his letter, and sheer defiance to carry out, what he describes as, his duty to carry out the wishes of Emeryville Residents.

Ken Bukowski 

Emeryville City Council Member