Yet Another Year Passes, Still No Horton Street Bike Boulevard

It's déjà vu all over again

December 31, 2015 is like December 31, 2014;

Bike Plan Still Being Ignored

Today, the Tattler brings back our ongoing end of December yearly feature: We re-post our September 2012 story (below) on Emeryville's Horton Street Bike Boulevard every December 31st and will continue until City Hall stops stalling and implements our Bike Plan as they are required to do.  This end-of-the-year feature serves as an annual clearinghouse for any news on the hold up of the Horton Street Bike Boulevard over the previous year.   
Readers bored or exasperated with the ongoing story of City Hall inaction on Horton Street can simply read the year end (short) synopsis in the italics preceding the September 2012 re-post every December 31st:  

I wake up every day, right here in 

Punxsutawney, and it's always 

February 2nd (or December 31st 

in Emeryville), and there's nothing 

I can do about it.

2015 Synopsis-

In 2015, nothing happened to implement the Horton Street Bike Boulevard.

In 1998, Emeryville adapted its Bike Plan after years of study and $200,000 spent on it.  In 2013, the City Council agreed to spend $10,000 to study the Bike Plan to figure out how to implement the Horton Street Bike Boulevard required by the Plan.  This $10,000 study is referred to as the 'study of the study'.  The Bike Plan doesn't call for any studies to be done to implement its requirements, it should be noted.  In 2014 City Hall held two community meetings about the study of the study but no action on Horton Street was taken that year or through to the end of 2015.  The 2013 authorized study of the study still hasn't even happened, raising doubts that the 12/31/16 re-post of this story will be any different than today's post.  
Especially disturbing this year is the fact that Emeryville voters elected the progressive City Council majority in 2014 and they have done nothing all year by way of delivering the Horton Street Bike Boulevard even though both Dianne Martinez and Scott Donahue both campaigned as being very pro-bike. 

As a side note: In 2014, City Hall found out another Bike Boulevard, the 45th Street Bike Boulevard is also in violation due to too many cars on that street.  Nothing was done in 2015 to fix that problem either.

Here then is the September 29th, 2012 Tattler story:

Major Traffic Calming Long Past Due For Horton Street

Emeryville's premiere bicycle thoroughfare, the Horton Street Bike Boulevard, has so much high speed traffic that it has become unsafe for bicycling.  So says Alta Planning, a Berkeley based urban bike network design firm that was commissioned by the City of Emeryville to study bicycling in town.  The $200,000 study, now incorporated into Emeryville's Bicycle/Pedestrian Plan and adopted into law by the city council lays waiting, ready to be implemented.

The question is, will it really be implemented or will it languish in some dusty corner at City Hall as so many other expensive studies have done?  Given the city council's baleful history of failing to calm the traffic on Horton Street for bicycle traffic and working to improve the street for vehicle use at the expense of bicycling, it seems likely it will be ignored and will remain a major automobile thoroughfare, unsafe for bicycles and becoming increasingly more so over time.  

Central to the Alta study is a limit on the number of cars that may use Horton Street, set at 3000 vehicles per day, before a mandatory set of traffic calming procedures kicks in.  The idea is that the traffic calming fixes will lower the number of vehicles that use the bike boulevard down below the 3000 maximum.  It should be noted Emeryville's 3000 number earmarked for bike boulevards is larger than any other city in the Bay Area. 

A choker is an example of a 'neck-down'
called for by level 4 traffic calming.

The prescribed traffic calming comes in a series of increasingly interventionist levels, one through five, that reduces traffic volume and speed, the last such level resulting in a total diversion for through traffic.  Each level requires two years to adequately assess its efficacy.  

At this point, Horton Street has already gone through the first three traffic calming levels; these involve street stenciling, signage and intersection "bulb-outs".  Now, since traffic has not subsided on Horton (it's actually increased), it's time for level 4 traffic calming to be implemented according to the Plan.

Level 4 calls for "significant traffic calming", specifically, 'neck downs' or traffic limiters such as 'chokers', designed to act like a one lane bridge permitting only one car through at a time.

Here's what the Bike Plan calls for on Emeryville's bike boulevards:

Level 1 Basic Bicycle Boulevard- signs, pavement markings

Level 2 Enhanced Bicycle Boulevard- way-finding signs, reduced delays at intersections

Level 3 Limited Traffic Calming- intersection bulb-outs

Level 4 Significant Traffic Calming- neck-downs

Level 5 Traffic Diversion

Level 5 calls for diverters: This
is called out only if level 4 doesn't
work after two years.

The problem is the Bike Committee has already twice voted on significant traffic calming for Horton Street in years past.  Both times the city council has overridden the committee's findings.  The last time the committee voted unanimously to add such calming, councilwoman Nora Davis explained her veto to the committee, "I have no problem putting paint on the asphalt [pavement markings]" but anything more dramatic than that would draw a veto from her and consequently also from the council majority.

In the intervening two and a half years since the last council veto shutting down Horton Street traffic calming, the city has commissioned and now encoded the $200,000 Alta study.

While we acknowledge Ms Davis' forthrightness in explaining to the people why they shouldn't expect safe biking routes in town, we call on the rest of the council to abide by the new Bike Plan they have adopted.  The fact that other such documents have been subverted in the past by the council should not serve as a precedent for inaction on Horton Street.  It's never too late to start working towards livability and rational public policy.  Let's make bicycling safe on the Horton Street Bicycle Boulevard.  It's time for a choker on Horton Street.

Six Months After Passage of Emeryville's Minimum Wage Ordinance: No Decline in Business Viability

More Business Start-ups, Much Fewer Business Closures

All While Lowest Workers See Big Pay Increase

News Analysis
Almost half a year after the passage of Emeryville's Minimum Wage Ordinance, the effect on business viability is revealing itself: slightly more businesses are opening and far fewer businesses are closing.  According to City Hall numbers, there has been no negative effect on business viability in Emeryville despite wall-to-wall prognosticating claims to the contrary made by the business sector last spring.  Predictions of a mass business extinction and exodus were leveled at the City Council in several community meetings conducted and one even foretelling of a crime wave that would be brought on by the increase in worker's pay but nothing of the sort has so far occurred.  In fact, a cogent argument could be made that the implementation of the Minimum Wage Ordinance has actually helped INCREASE Emeryville business viability, or at least business viability has increased in spite of the MWO.

The sunny picture hasn't stopped some in the business community from continuing a dark portrayal of business activity in Emeryville post MWO.  The pro-business opinion blog the E'Ville Eye and its editor Rob Arias spent last spring foretelling calamity and since MWO implementation, used individual business closures as an opportunity to drive its anti-MWO agenda.  Stories of new business openings appearing in the E'Ville Eye in the months since the ordinance took effect, strangely have left the MWO unmentioned.

The new business registrations and business closures tracked by City Hall include all businesses in town, however small business numbers vastly outweigh large business numbers for both start-ups and closures and these numbers have remained quite consistent in their percentage throughout the tracking period.  Going back to April 2014 (the start of tracking as provided by the City's website) and up to the vote on and implementation of the MWO on July 2nd 2015, new start-ups have averaged about 13 per month.  After the MWO took effect, that number has remained very consistent; up slightly at 14 new start-ups per month on average.  The number of business closures however have changed dramatically; before the implementation of the MWO, there were an average of 16 businesses closed per month compared to only four per month since the MWO started.

For sake of clarity, the start-up and closure of residential landlord businesses have not been included in these tabulations because the City separates them for sake of tracking because they don't tax those businesses.  For our purposes, residential landlord businesses are not really germane to the goal of creating a locally serving business community and so we didn't include them.  Notable though, if we had, it would have skewed the number of new business start-ups much higher since the implementation of the MWO, probably because many people are scrambling to take advantage of the rapidly increasing rental prices in Emeryville of late.

It is helpful for understanding to note that the business community also argued vigorously against implementing Measure C, the so called 'Living Wage for Hotel Workers' ballot initiative passed by Emeryville voters in 2005.  The new law called for a minimum wage increase in town up to $9 for some workers and $11 for others (the California minimum wage at the time was $6.75).  Similar predictions were made warning of the destruction of Emeryville's hospitality industry and a mass exodus of Emeryville hotels to Oakland or Berkeley.  Readers should note that was when Emeryville had four hotels.  Now a fifth hotel is under construction at Bay Street.

The numbers below are from Emeryville City Hall:

Donn Merriam: Tattler Takes Back School Board Endorsment

The Tattler Takes a Mulligan:

Donn Merriam's Skewed Worldview:
Loyalty to President Affeldt is What's Most Important 


Lack of Comity at School Board:
Instead of Apologies We Get Total Silence

Opinion

Donn Merriam
 A bit dickish and a
John Affeldt 'yes man'.
who supplanted...

Emeryville's right wing and the sycophants of the power elite in town have long called on the Tattler to take back what it has said and to that we've always responded; show us where we're wrong and the Tattler will post a retraction and an apology.  Well, consider this a retraction and an apology: we endorsed Donn Merriam for the Emery School Board in 2014 and we were wrong and we apologize.
Donn Merriam sucks on the School Board...we're the first to admit it.  He's served as a bump on a log and a 'yes man' to the current board president's dark and community disempowering vision since he got there.  Before the last election, we thought Donn would be a breath of fresh air, likely better than the guy he beat out, Miguel Dwin; the former yes man for then School Board President Josh Simon.  Now we can't qualify how he's been any better than Mr Dwin, indeed, he's shown to be actually worse in some regards.

In our defense, if you read the Tattler endorsement of Donn Merriam from October 2014, you'll note it was not our fondness for Mr Merriam as much as our realization of the need to get rid of Miguel Dwin that drove the endorsement.  Mr Merriam was a new face and we went with that; a low bar that we admitted at the time.  We now realize, some 13 months later, just how low we set the bar... too low.

...Miguel Dwin
a nice guy but ultimately just
a yes man for Josh Simon.

Donn Meriam on the Emery School Board has been a warm body taking up a seat until Board President John Affeldt needs a second to some wrong-headed policy...then the sleepy Donn Merriam springs into action.  He's part of the 'yes person' culture at the Emery School Board.  It's how the Center of 'Community' Life has been railroaded past dissenters; a strongman in charge on the Board with a bevy of yes people to support him.  We should have known better when we did our inadequate vetting of Donn Merriam last year.

Donn has delivered consistent and unwavering support to President Affeldt's program of shutting out residents as they have sought a forum on the closing of Anna Yates Elementary School just like Mr Dwinn provided for Mr Simon but Mr Merriam has gone a step further than Mr Dwin ever did by also buttressing a program to torpedo comity among colleagues on the Board (brought by Mr Affeldt).  In the unseemly Brown Act debacle still unfolding, Donn has happily joined President Affeldt in attacking fellow Board member Christian Patz after Mr Patz cried foul when he saw three Board members leaving a secret meeting in the Superintendent's office, a Brown Act violation.  Donn Merriam gushed sanctimonious outrage that Mr Patz said the meeting he witnessed was improper.  Later when President Affeldt and Superintendent Rubio admitted the meeting was illegal (under intense media pressure), and it was time for apologies to Mr Patz and the people of Emeryville,  Mr Merriam offered up a big serving of total silence.
We blew it when we endorsed you Donn Merriam and we join the rest of Emeryville in our waiting for the apologies.

Secrecy Reigns at Emeryville's Dysfunctional School Board/District

We Can Trust School Board President Affeldt to Conduct Secret Meetings Ethically 

(Says President Affeldt)

Never Mind What the Law Says, 

It's Better if the Public is Left Out He Says 

Opinion

Hi, I'm John.
Trust me.

Last night, the Emery School Board voted John Affeldt as President for another term (3-1 Patz dissenting, Affeldt voting for himself).  That's believable for this district; between the guy that conducts illegal secret meetings and the one that thinks the law should be obeyed and the public included, Emeryville gets the school board president that conducts illegal secret meetings.  That's our school district in all its glory, its 'bless your heart' flag flying high.

Which brings us again to the antics of Emery School Board President John Affeldt (and Superintendent of the Schools John Rubio) and the still unfolding secret meeting Brown Act scandal and its attendant coverup.  The Board's lack of contrition after the guilty players (they themselves) were exposed by their colleague, whistleblower Christian Patz, has been a deafening silence.

Why All The Secrecy?
A month into the scandal, after the tepid admissions of guilt from these two (a technical violation of the Brown Act and 'mistakes were made' you understand), we're left facing the 800 pound gorilla in the room: why does this school district feel the need to operate in secrecy to begin with?  Why is it these 'superintendent committees', the same ones the editorial board of the Bay Area News Group calls illegal, why is it that the District is compelled to leave the public out of these meetings?  What are they discussing in these meetings behind closed door that they need to keep hidden from us?

Superintendent Rubio
Secret meetings are wonderful!
It's rare that we do them
but when we do,
they're done professionally,
 & for the children.

Part of the storm of condemnation from the guilty Board raining down on the non-guilty whistleblower member Patz is the outrage expressed by President Affeldt as he self righteously denies doing anything untoward at the November 18 secret meeting with an illegal quorum of Board members.  Seeking to assure Emeryville residents, Mr Affeldt has strenuously and didactically asserted nothing substantial was discussed or voted on at that now infamous illegal meeting or indeed any of the closed door superintendent committee meetings where no records are kept and the public may not go.  But of course, this begs the question: how do we know that, John? 

Are we just to take your word for it?  Your word?  The man who is so narcissistic that he can't bring himself to apologize to the public for his wrong doing on their behalf?  Is it to be: everything will be OK if we just let you conduct School District policy in secret?  And stop criticizing you or looking into your culture of secrecy you've promulgated at Emery Unified School District?

Back Bencher Christian Patz
'Public meetings should be public'.
Yeah, right.

Without throwing out a few tawdry "for the children" platitudes this Board and school district so often uses when their wrongheaded policies are exposed to the light of day (or when their backs are against the wall, their culpability in illegal activity is exposed), let's just say, NO, we're not going to just trust you.  You have to stop conducting the people's business behind closed doors; we're paying for it and we have a right to know. 

Public Forum Announced on Emeryville Police Department's Use of AR-15 Assault Rifles

A local arm of a national police watch organization known as the Anti Police-Terror Project is hosting a public forum Sunday on the Emeryville Police Department and their use of AR-15 assault rifles in the wake of the shooting of Yuvette Henderson earlier in the year by Emeryville officers.  The forum, to be held at NUHW Hall, 5801 Christie Avenue #525 is titled Emeryville Police With AR-15s: Are We Safer?

According to the Facebook site dedicated to the event, in addition to EPD, the forum will include talks on the increasing militarization of police departments nation wide with detail on the Bay Area, specifically the Oakland Police Department.  Public policy analysts and activists will examine the impact of coordination between police departments and US Immigration Enforcement on latino communities.  The day will also feature spoken word and music performances.

The organizers to the event say the forum is intended to serve as the launch of a broader campaign to end the militarization of the Emeryville Police Department.

The Tattler weighed in on police use of these AR-15 assault weapons HERE and HERE.

All are invited to the forum and organizers would appreciate for interested parties to sign in at the Facebook site. The event starts at 2:30 and is expected to last until 5:00 PM Sunday December 13th.

School Board President Affeldt Responds to Brown Act Scandal

Emery School Board President John Affeldt has submitted the following letter today for Tattler readers to consider regarding fallout from the November 18th Emery School District Brown Act violation (please see numerous previous Tattler stories for background, starting with the opening November 23rd story).  The letter is the text from the verbal response given at the School Board meeting of December 2nd by Mr Affeldt.

Statement of John Affeldt, EUSD Board President 

As Supt. Rubio has noted it was a technical violation of the Brown Act to have a third board member be present to observe a Superintendent’s committee meeting on November 18th . We all regret this error; I am sorry it happened on my watch, and we will make sure this does not happen again.

Let me emphasize, there was no substantive consequence as a result of Member Merriam’s presence on November 18th. No actions were taken, no decisions were made. What is more, the information generated at the Superintendent’s committee meeting was immediately shared with the full board and the public at the board meeting that night. The only discussion by board members on November 18th as to whether to support the bond issuance was had in public at the full board meeting. The sole purpose of the Superintendent’s committee meeting was to update the list of known and potential outstanding ECCL construction costs. The Board as a whole, when discussing the bond item at its prior public meeting, had requested that such a list be presented to the Board at the meeting on November 18th .

That this meeting occurred as it did was an honest mistake. I and the other board members present at the meeting relied on staff’s understanding that it was not a violation of the Brown Act to have a third board member observe the meeting, but not participate. There is such a rule, but it did not apply in this instance. Staff were confusing the fact that additional board members are permitted to silently observe publicly noticed meetings of two-member committees of the board. This was a superintendent’s committee meeting and, as such, is not publicly noticed. In that case, the non-participation of the third board member does not prevent a quorum from being formed. As the Supt. has noted, the Board will undertake additional training to refresh all of us on the Brown Act, most likely at our semi-annual retreat early next year.

I appreciate Member Patz informing us of the fact that he believed a Brown Act violation had occurred. I was wrong in my understanding that it had not. Yet, Mr. Patz did more than convey that belief. On November 18th , he made very inflammatory claims about what occurred at the Superintendent’s committee meeting—asserting that board members intentionally used the meeting to act as a “cabal,” to discuss and “pre-determine” passage of the bond. And, he did so without even first asking his fellow board members what had taken place. I take issue with anyone who is willing to make assertions with reckless disregard for whether they are true or not. When any person, much less a public official, makes an unfounded, inflammatory assertion, they sow confusion and undermine open and honest civic dialogue. We don’t all have to agree. But we all should refrain from making unfounded accusations of intentional wrong-doing against each other.

Now, it doesn’t feel right to end it right there. On reflection, it has occurred to me that Mr. Patz may have acted as he did because of a fundamental lack of trust of his fellow board members. Now, we may have different styles; we may have different personalities; we may have different objectives. But we are all on this Board together and we have to lead this district together.

To do that, we have to trust each other. So, I’m going to propose that the Board, at its retreat in the early part of the coming year, explore engaging some kind of intervention where we can work on the trust issues that currently exist so that we can move forward together. We have many important items before us in the coming year, including addressing our composition between Anna Yates and ECCL and opening the ECCL facility. I look forward to continuing to work with all members of the board and the school community on these and other matters.

Smoking Gun Video Reveals School Board President Lied to the People of Emeryville

Brown Act Scandal Smoking Gun

Affeldt Caught Contradicting Himself

Conscious Violation, Not a "Mistake"

A smoking gun video recording of an Emery School Board 'retreat' last summer has surfaced showing the school district's attorney teaching the Board members about the Brown Act open-meetings law that directly contradicts the Board President's and the Superintendent's recent claims of ignorance of the law after a colleague caught three Board members privately meeting behind closed doors before a regular Board meeting November 18th, 2015.  The video of the September 13th 2014 Board retreat makes it clear the Board understands that a private meeting with three of them in attendance would be illegal,  exactly what they did this last November and then denied under questioning from a fellow Board member that the meeting was illegal.

Emery School Board President
John Affeldt

After the Tattler first broke the story and the greater Bay Area press helped turn it into a major public scandal, Board President John Affeldt and Schools Superintendent John Rubio have consequently admitted that, yes they had indeed violated the Brown Act with the private meeting, a "technical" violation but it was a "mistake" based on them not knowing the law.  Mr Affeldt had originally claimed the fact that one of the three Board members in attendance at the private meeting didn't participate in the discussions, in effect made the meeting legal, something the 2014 video (below) shows he knew to be false when he made that statement.

After Board member Christian Patz made a complaint about the private closed door meeting he witnessed at the November 18th public Board meeting, Mr Affeldt, an attorney,  attacked him and strenuously denied that a quorum of three Board members meeting in private where Board business is being discussed behind closed doors constitutes a Brown Act violation, instead he said it's "completely within the Brown Act and appropriate".
However, the 2014 video shows the entire Board listening to Mr Affeldt agreeing with and reiterating what the District's attorney stated about how it's illegal for three Board members to even be in a private room together when District business is being discussed.  Immediately following that, Superintendent Rubio says that to have meetings with three Board members in private would be unfair to the public because they wouldn't have the ability to participate.

Relevant attendance at the 2014 Board retreat besides Superintendent John Rubio included Board members John Affeldt, Melodi Dice, and Christian Patz.

Smoking Gun Video Table of Contents:

10:55 - 13:57   The District's attorney tells the Board "collective concurrence", or action taken by the Board based on an illegal quorum meeting, is not needed for a Brown Act violation to have occurred, simply a private quorum meeting where Board business is being discussed is a Brown Act violation. 

13:57 - 14:14   The Smoking Gun: Board President Affeldt reiterates and explains to the rest of the Board it's illegal for more than two of them to meet privately where District business is being discussed. 

14:14 - 14:27   Superintendent Rubio adds his view that if more than two Board members were to meet privately to discuss District business, it would be unfair to the public because they would not have an opportunity to participate.   

Video courtesy of the Emeryville Property Owners Association

Emery School Board President, Superintendent Called to Account by Local Press

From the Contra Costa Times and the Oakland Tribune:

Daniel Borenstein: Six decades after Brown Act passage, elected leaders still hold 

illegal meetings

By Daniel Borenstein dborenstein@bayareanewsgroup.com © 2015 Bay Area News Group

Emery Unified School District board member Donn Merriman; John Affeldt, president; John Rubio, superintendent; and Melodi Dice, vice president, clockwise from upper left, are photographed during a board meeting on Wednesday, Dec. 2, 2015, in Emeryville, Calif. The board members and superintendent participated in a Nov. 18 that was in violation of California's open meeting law. (Aric Crabb/Bay Area News Group)

The principle underlying California's local government open-meeting law is simple: The public's business must be conducted in public. Yet 62 years after the passage of the Brown Act, some elected leaders still don't get it.

The most recent example comes from Emeryville, where a majority of school district trustees met privately with the superintendent and construction manager before a board meeting last month. They say they reviewed costs for a joint city-school district project for which the board later that night approved issuance of another $4.5 million of bonds.

It's amazing that elected officials hold such closed-door gatherings more than six decades after Gov. Earl Warren signed legislation outlawing them. Indeed, these are the very sorts of meetings that led to the Brown Act.

For the rest of the story please click HERE.

Board President Affeldt Admits Brown Act Violation, Blames Superintendent

School Board President Blames Superintendent For Illegal Meeting

Steps Up Attack on Board Member Whistleblower

The latest shoe to drop in the continuing Emery School Board Brown Act scandal was brought by Board President John Affeldt in a letter crafted this morning to the rest of the Board and the Emeryville City Council  (below) where Mr Affeldt finally admits the private meeting held by him and two other Board members in the Superintendent's office before a public Board meeting November 18th was illegal.  However Mr Affeldt, an attorney in addition to being Emery's School Board President, hitched his accounting of the Board's Brown Act violation to Superintendent John Rubio's explanation and acceptance of personal culpability for the illegal meeting in a letter Rubio sent over the weekend and as such, Mr Affeldt escapes any responsibility.  The fault lies with Mr Rubio, Mr Affeldt accepts.  
After the admission that a "technical violation" had occurred when the Board quorum met in private behind closed doors as covered by the Tattler and the greater Bay Area press, President Affeldt used the rest of his letter to chastise Mr Patz for blowing the whistle on the Board, the bigger problem it would seem.  He added this sort of airing of the District's dirty laundry is not good for the children, better to "work productively" he said in the letter.

Below is Board President Affeldt's contribution to the back and forth in the on-going scandal:

Member Patz,

I will let the Superintendent’s response address the substance of your concerns, except to reiterate that the Board is committed to following the Brown Act, we appreciate your identifying the technical violation and that such will be corrected going forward.

What is disconcerting is the fact that you have chosen to act in such a divisive and confrontational manner.  I know the rest of the Board remains committed to working together productively in the best interests of the students and believe we could have reached the same result without your engaging in legal threats. 

What is even more disappointing is your unfounded assertion at the Board meeting on November 18th, reiterated in your letter, that decisions were made and funds were allocated behind closed doors. You are fully aware that the group of individuals in the meeting had no such authority. Moreover, all facts demonstrate that the meeting was a mechanical compilation of potential outstanding ECCL construction costs generated for presentation that night to the full board and the public in an open meeting to enhance transparency about the status of the ECCL project. When you engage in inaccurate assertions for which you have no basis in fact, you do a tremendous disservice to open and honest civic dialogue and to the proper and effective functioning of our schools.

I genuinely remain open to working productively with you and the rest of the Board moving forward.

John Affeldt

EUSD Board President

Scathing Editorial From Contra Costa Times Excoriates Emery School Board: Brown Act Violation

The local press picks up the Tattler story.  From the Bay Area News Group:

Contra Costa Times editorial: Emeryville school board responded childishly when caught in illegal meeting

Contra Costa Times editorial © 2015 Bay Area News Group

POSTED:   11/30/2015 12:35:00 PM PST0 COMMENTS| UPDATED:   35 MIN. AGO

Emery school district board President John Affeldt, who happens to be a public-advocacy attorney, should know better than to hold a closed-door meeting with a majority of trustees. Photo courtesy of The Emeryville Tattler

It's bad enough that Emeryville school board members blatantly violated the state open-meeting law. But the self-righteous indignation after they were caught was embarrassingly childish.

What's more, their ignorance of the law is nothing short of appalling.

To be sure, parts of California's open-meeting law for local government, known as the Brown Act, are complicated. That's why elected officials should read it before attending closed-door gatherings.

But the private meeting of an Emery Unified School District board majority with Superintendent John Rubio and the district's construction manager was not a close call. It was illegal.

Please read the rest of the editorial HERE

Brown Act Scandal: Schools Superintendent Admits Meeting Was Illegal

Evolving School District Scandal:

Schools Superintendent Admits 

Brown Act Law Was Broken

In a rapidly moving scandal, Emery Schools Superintendent John Rubio offered the following letter today (below) in response to accusations from Board member Christian Patz that before the public School Board meeting on November 18, a three Board member quorum including Board President John Affeldt, privately met in the Superintendent's office to discuss a proposed $5 million school bond issue on the Board's agenda, a Brown Act violation.  In the letter, Superintendent Rubio admits the private meeting was illegal and constituted a Brown Act violation.  Further, Mr Rubio seems to feel he himself is to blame for the illegal act, leaving the three Board members free from culpability.  Mr Patz has indicated that the Board, especially President Affeldt who is an attorney, is responsible for the violation.  
Conversely, President Affeldt as of today, still stands by his assertion that Mr Patz acted unprofessionally in bringing his charge of impropriety against the Board and that the private meeting with a Board quorum was appropriate and did not represent a Brown Act violation.  The two other Board members have not made a statement after the November 18th meeting.

Emery Schools Superintendent
John Rubio

For the record, the Board voted to sell the $5 million bond for construction of the Center of 'Community' Life at the public Board meeting (3-1 Patz dissenting, Ashe absent). 
The illegal quorum consisted of Mr Affeldt as well as Board members Melodi Dice and Donn Merriam.  Ms Dice has announced she will be stepping down from the Emery School Board in December for personal reasons unrelated to the Brown Act scandal.

Here is Superintendent Rubio's letter:

Dear Board Members:  

I received a copy of the e-mail sent by Board Member Patz on Friday (November 27th).    In that e-mail, he set forth his concerns about the meeting of the Superintendent’s Finance Committee that occurred on November 18, 2015.    Member Patz’s concerns are more completely laid out in the letter addressed to Board President Affeldt that was attached to the e-mail.  

I appreciate the questions because I also want to be sure that we correctly understand and follow the open meeting laws whenever the Brown Act applies.  

The purpose of the committee meeting that Member Patz identified in his email/letter, which I chaired, was simply to review (with John Baker’s assistance) an updated list of existing and potential expenses concerning ECCL.  These expenses were subsequently presented to the public, and to the full Board for the action it deemed appropriate, pursuant to an agendized item as part of the regular meeting agenda.    Indeed, most of the expenses reviewed by the committee had been discussed in public meetings over the last three months and were being updated with the most recent/accurate cost estimates for presentation to the full Board.  

I feel it is accurate to say that I, and all Emery USD Board Members, share Member Patz’s view that the Brown Act requires transparency.  The General Rule is that meetings are to take place in public.    While there are exceptions, they are just that – only limited exceptions to the General Rule.  

One exception is any committee formed by the Superintendent (i.e. not by formal action of the Board).    This is a slight modification to the Brown Act that was made to address some of the ambiguity that surrounded the old criteria of “standing” vs “non-standing,” permanent vs temporary, and decision making vs advisory.  

I, and superintendents before me in Emery USD, have formed these committees to assist Superintendents to prepare agenda items for presentation to the full Board for discussion and potential action.    They are not empowered to, nor do they, take any action on behalf of the District.

I believe that the Superintendent’s Finance Committee qualifies as an exception to the General Rule provided there are only two Board Members in attendance at the meeting.  I recently double-checked with legal counsel who affirmed the legality of this practice.    It appears that Member Patz understands this exception.   It is his view, however, that the Board should eliminate the possibility of such committees.  

I erroneously believed that it was permissible for a third Board member to attend, provided he/she did not “participate.”    This, however, was based on me not correctly understanding the law.    Attendance by a third member would only have been permitted if he/she were attending a properly noticed meeting of a committee created by Board action.    In such a case, even if a quorum of the full Board was present, other Board members could attend a “standing” committee provided they neither sat at the dais nor “participated.”  

I concur that Government Code Section 54952.2 (a) spells out when a meeting has occurred:   A Board meeting has occurred whenever a majority of Board members gather at the same time and location (including by teleconference) to hear, discuss, deliberate or take action on any item that is within the subject matter jurisdiction of the Board or district.  

I do not concur with Member Patz’s characterization of what occurred during the meeting of the Superintendent’s Finance Committee on November 18.th.   At no time was a vote taken, nor was there a collective commitment to take an action, nor was there a promise or collective commitment to take an action. 
     

I have summarized Member Patz’s demands, and offer the following observations and recommendations to Member Patz and the full Board to resolve his concerns and his demands:  

1.  DEMAND:     Cease and desist all meetings of the Superintendent’s Committees on Finance and Facilities.   Or, in the alternative, establish them by formal Board action so that they are subject to the Brown Act.  

Superintendent’s Response:    I feel that, as currently configured and formed, these committees are very valuable to the Superintendent.    While it is a policy determination for the Board, I recommend that the Board continue to permit me and future Superintendents the latitude to establish such committees as deemed necessary.    In no case, however, can a quorum of the Board ever attend such a meeting.  

2.  DEMAND:     An acknowledgment at a future Board meeting that the Superintendent’s Finance Committee meeting on November 18th was a non-agendized meeting of the full Board.

Superintendent’s Response:    Because it was my committee, I will make this acknowledgment at the next regular meeting of the Board.    Board members may, as they feel it appropriate, comment on my acknowledgment.  

3.   DEMAND:     Board Members, particularly those that attended the meeting on November 18th, to receive Brown Act training at no cost to the public.  

Superintendent’s Response:    Brown Act Training, including periodic refreshers, is invaluable to public officials (including Superintendents).   I have asked Bob Kingsley, of Kingsley Bogard, to present a Brown Act workshop to the Board.    Because of his Firm’s long-standing relationship to the District, he has agreed to do so at no charge to the District.   I will survey Board members to determine an acceptable time and date.  

It is important to note a final factor - there is nothing related to the vote taken concerning the bonds to cure and correct.   I have consulted with a legal counsel at each of the two firms primarily used by the District, and both concur with this assessment since the entire Board discussed, deliberated and gave direction on the topic during the open session pursuant to an agendized item.   Moreover, as Memberr Patz acknowledged, a technical violation of the Brown Act does not void actions (such as bonds) that involve third parties.  

If he feels it is necessary, I am happy to meet with Board Member Patz to discuss his letter and my recommendations to the Board.   To the extent that he feels that my recommendations do not fully address his demands, I will work with him to resolve any remaining issues.   As necessary, I will involve legal counsel.    

Whenever I make an error or have misunderstood the law, I will always take immediate action to correct my understanding and District practices.   In this spirit of correction, improvement and collaboration, I urge all Board members in the future to bring such matters to my attention in a non-confrontational manner.   I believe that the Emery USD community (students, families and staff) depend on a professional, well-functioning Board where all members work together to resolve our issues.  

In closing, I feel it is accurate to say that the entire Board and I are committed to follow the Brown Act whenever it applies.    

Thank You,     

Dr. John Rubio, Superintendent 

Video Shows School Board Intransigence on Brown Act Debacle

Eleven Minutes of Shame

News Analysis/Opinion
The following lurid video snippet from the November 18th Emery School Board meeting (below) shows a slow motion train wreak as Board members and the Superintendent try to fend off damning allegations of illegal back room dealing by a Board quorum, a Brown Act violation, made by their colleague Christian Patz as covered by the Tattler (HERE & HERE).  The antics that unfold reveal an irony that comes when arrogance and narcissism sets into a body politic: by meeting privately in the office of the Superintendent the Schools, the Board quorum attempted to get their ducks all in a row with regard to the impending public vote on the new $5 million school bond they wanted to sell but when member Patz dropped the allegations on them in the follow up public meeting, the ducks seem to fly off all akimbo and their answers end up being contradictory.  This is especially true of the way Board President John Affeldt and Superintendent John Rubio answer the allegations: the meeting was not illegal and not wrong says attorney Affeldt while Mr Rubio tacitly admits there is something wrong about a quorum meeting privately. Taken all together, the four of them obviously never planned on having to answer such impudent questions about their illegal actions that the video reveals have happened more than once.

In addition to the unseemly spectacle of the Board President doubling down on denying the accusations from Mr Patz, the video reveals member Melodi Dice as she takes personal offense to the allegations and leaves the room in a huff, only to return later in order to take the vote to sell the bond.  Member Donn Merriam also takes personal offense and provides the quote of the season while Superintendent John Rubio assures us it's rare that the quorum meets illegally but when they do it's done very professionally.


Notable Quotes:
"A third Board member came to observe and that is completely within the Brown Act and appropriate"- Board President John Affeldt

"I am so insulted.  I have a lot going on in my world, we all do.  We do not need additional B.S.  It's not fair for this Board to be accused of B.S.". - Board member Melodi Dice

"For you to say I've violated the Brown Act with no evidence whatsoever, just what you see?" - Board member Donn Merriam

"It is very rare that we do this." - School Superintendent John Rubio


Table of Contents to the Video:

1. 0 - 3:07   Board member Patz drops his charge
2. 3:07 - 6:48   President Affeldt angrily doubles down on his insistence the Brown Act wasn't violated
3. 6:48 - 8:14   Member Dice's histrionics and umbrage, including leaving the room
4. 8:14 - 9:58   Mr Patz defends himself
5. 8:58 - 9:27   Superintendent Rubio contradicts President Affeldt
6. 10:21 - 10:58   Member Merriam, deeply offended, offers up the quote of the year
7. 10:58 - end   Board approves $5 million bond 3-1 (Patz dissenting)

Video courtesy of Emeryville Property Owners Association

Emery School Board Member Patz Details Sweeping Transparency Violation

Letter Alleges "Substantial" Brown Act Violation at School Board

Board Member Patz Breaks Rank

President Affeldt Shown 'Doubling Down' on "Closed Door" Law Breaking Activity

Emery School Board member
Christian Patz Ed.D.

Emery Unified School District Board Trustee Christian Patz today released a damning letter against three of his colleagues and the Superintendent of the Schools alleging broad violations of "central provisions" of the Brown Act, the suite of transparency law provisions meant to stop back room dealings among elected officials in California.  Board member Patz indicates the matter is not finished with release of the letter transcribed below, and that he is seeking legal assistance as he prosecutes the School District and the President of the Board John Affeldt for conducting an illegal private meeting with a Board quorum while discussing the disbursement of public funds as the Tattler exposed Monday.  

The revelatory charge brought by Board member Patz, arguably represents the most egregious violation of the Brown Act in modern Emeryville history.  Notable, is the reaction taken by President Affeldt, an attorney, as he attempted to 'double down' on the allegations by publicly repudiating Mr Patz for making the charges at the November 18th Board meeting and insisting that the silence of one of the Board members at the preceding private meeting in question constitutes a legal action.  A reading of the Brown Act disputes Mr Affeldt's claim.

Here is the letter released today by Mr Patz, in the still developing story: 

President John Affeldt

Members

Board of Trustees

Emery Unified School District

Dear Mr. Affeldt,

This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act. It is clear that the meeting you attended behind closed doors with Members Dice and Merriam and Superintendent Rubio was improper. In the past, I have expressed my concern that the superintendent’s committee meetings either violated the Brown Act or were an attempt to side step the purpose of the Act. I draw your attention to section 54952(b) , “…except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.”

Prior to the board meeting of November 18, 2015, under the guise of the above mentioned superintendent’s committee, a quorum of members met with Superintendent Rubio in a nonpublic pre-meeting conference to discuss and allocate funds for the district. During the public board meeting on November 18^th the Emery Unified School District (EUSD) took action to sell General Education Bonds in a three to one vote, with all of the board members that met in secret voting to sell the bonds.

To be clear, three members were in a room behind closed doors meeting to discuss the allocation of funds from the Bonds that had not yet been authorized by the board. When I addressed this issue at the board meeting the following facts were not in dispute:

1. A meeting of the superintendent’s finance committee was being held in John Rubio’s office. John Rubio and John Baker of Swinerton were in attendance.
2. Member Dice and you, John Affeldt are members of this committee and were both in attendance on November 18, 2015.
3. The committee is not a subcommittee of the board, therefor the meeting is not noticed nor agendized. Minutes of the meeting are not available, nor was there any report out.
4. The meeting was held behind closed doors and the public was not able and not welcome to attend.
5. The expenditure of proceeds from the yet to be voted on bond sale were discussed, see attached image of the list that was presented at the board meeting
6. Member Donn Merriam also attended this meeting, creating a quorum of members
7. On at least one other occasion in the last year, there have been at least three members of the board present at a similar meeting. 

Given, there is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors, it follows that action taken following that meeting was not in compliance with the Brown Act because it occurred as the culmination of a discussion in closed session of a matter which the Act does not permit to be discussed in closed session. 

Furthermore, by our own policy, the meeting was a board meeting, per board bylaws 9320 (emphasis added), “A Board meeting exists whenever a majority of Board members gather at the same time and place to hear, discuss or deliberate upon any item within the subject matter jurisdiction of the Board or district. (Government Code 54952.2)” All board meeting are subject to the Brown Act.

In the event it appears to you that the conduct of the EUSD Board specified herein did not amount to the taking of action, I call your attention to Section 54952.6, which defines “action taken” for the purposes of the Act expansively, i.e. as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”

As you are aware, the Brown Act creates specific agenda obligations for notifying the public with a “brief description” of each item to be discussed or acted upon, and also creates a legal remedy for illegally taken actions—namely, the judicial invalidation of them upon proper findings of fact and conclusions of law. Unfortunately, the sales of bonds are excluded from this rule.

Pursuant to that provision (Government Code Section 54960.1), I demand that the EUSD Board cease and desist the informal sessions or conferences of the board members designed for the discussion of public business referred to as the superintendent’s finance and facilities committees: a disclosure at a subsequent meeting from individual members of the board stipulating that they understand they violated the Brown Act by holding a closed door meeting to discuss school business, accompanied by notice of when and how offending board members will acquire training on the Brown Act, without cost to the public. If the Board feels there is a need to continue with the sub committees of the board, they make them formal sub committees, subject to and following the Brown Act by holding them in public with proper notice and published agendas.

As provided by Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to Section 54960.1, in which case I would also ask the court to order you to pay my court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.

Respectfully yours,

Christian Patz, Ed.D.

Board Member EUSD

CC: Media, Alameda County of Education Board of Trustees, Emeryville City Council, legal counsel

School Board President Holds Illegal Closed Door Meeting, Trustee To File Charges

Public Shut Out of Meeting Discussing 
$5 Million Public School Bond Money

School Board Member Patz Says Meeting Was Illegal

Emery Unified School District Board of Trustees member Christian Patz reports a serious violation of a 'sunshine' law known as the Brown Act meant to stop closed door back room meetings for elected public trustees when he observed three Board colleagues privately meeting with the Superintendent in his office before a regular public School Board meeting Wednesday evening.

Board President John Affeldt

Mr Affeldt, an attorney, chaired 

the illegal Finance Committee meeting 

(or illegal Board Meeting,

take your pick).

Mr Patz indicated the three School Board members were likely discussing how to spend $5 million of public money to be obtained by the forthcoming sale of a new school bond for construction of the Emeryville Center of 'Community' Life.  At the School Board public meeting, conducted after the private illegal meeting Wednesday evening, Emery School Superintendent John Rubio admitted on camera that School Board President John Affeldt and Board members Melodi Dice and Donn Merriam met privately to discuss how to spend the school bond proceeds, an illegal action.  Mr Patz indicated he will take further action on this by notifying the Alameda County Board of Education and perhaps other authorities.

Responding to charges of impropriety from Board member Patz, President Affeldt flipped the charge and called Mr Patz' comments "inappropriate".  He explained he believed the private meeting was not a violation of the Brown Act because Board member Merriam was only there as an observer and he was not an active participant.  For the record, the Brown Act expressly forbids more than two Board members from privately meeting where School Board business is discussed, the matter of a member not speaking is immaterial to the law.
Board member Merriam, for his part responded to Mr Patz' allegations with a quotable quote, "For you to say I've violated the Brown Act with no evidence whatsoever, just what you see?  I can't condone that behavior, that insinuation."  Again, for the record, what Mr Patz saw was three Board members in a private closed door meeting where School District business was being discussed, a direct violation of the Brown Act.
Superintendent Rubio explained that such meetings in his office with more than two School Board members happen but they are "rare".  Mr Rubio added when the Board does privately meet (in violation of the Brown Act) they do so "very professionally".

Schools Superintendent John Rubio
Says illegal meetings take 
place in his office 'very rarely'.

The Emery Unified School District was the subject of an Alameda County Grand Jury investigation last year for not complying with the Brown Act in conducting meetings of its Citizens' Bond Oversight Committee.  The response from EUSD clearly showed the District received legal counsel on this issue, removing doubt that the District is now well versed in proper compliance with the Brown Act's requirements.

Mr Patz charged the Board Tuesday evening should not vote on the new school bond because the previous illegal discussion on the topic would automatically negate any vote the Board might take but President Affeldt, an attorney, proceeded on without regard to Mr Patz' warning, directing discussion and a vote approving the sale of the bond.

The Board approved the $5 million school bond 3-1 (Patz dissenting, Ashe absent).

Abject Propaganda Language Stripped From Market Place Development Documents

Improved Affordability for Well Planned Development

Project Will Contribute to the General Well Being of the Neighborhood

Development Will Contain Iconic Architecture

News Analysis/Opinion
The Market Place development will be a great project for Emeryville....oh wait...strike that.  Make that: the Market Place development will be a... project for Emeryville.

Shellmound Avenue's long planned albeit contentious Market Place development, a proposed series of residential towers with nearly 500 rental units, was finally approved by the Emeryville City Council last Tuesday night after the developer was forced to increase the number of affordable units as had been demanded by the Council majority last July.  In the interim months, City Center Realty Partners the San Francisco based development corporation, agreed under pressure to increase the number of affordable units from 33 to 50, as the Council majority had indicated would be necessary for a deal to be reached.
The increase in the affordability for the Market Place development is certainly good news for Emeryville as is the fact that the City Council majority also forced City Center Realty to honor our new family housing ordinance but unfortunately the final Development Agreement (DA) at the Market Place allows for a very large and deeply flawed project to be built in our town.  From the glut of parking spaces to the anemic Christie Park expansion to its lack of locally serving retail to its 100% rental make-up, this project never should have been approved, especially since the project will be revenue neutral for Emeryville.

Councilman Scott Donahue
The Market Place development
will make Emeryville worse
as far as traffic, park acreage per
resident, locally serving retail,
rental vs ownership housing,
revenue and architecture goes.
Other than that, it'll be a
wonderful project.

The myriad problems with the Market Place project are obviously not lost on Councilman Scott Donahue who even though he supported the project, ordered the imprecise euphemistic adjective language peppered throughout the ordinance document associated with the project to be stricken from the record.  Councilman Donahue said the affordability and family friendliness improvements the Council majority achieved through negotiations with the developer were good enough to vote for final approval for the project but he couldn't countenance the fawning language the City Attorney and the City Planning Directer had crafted in the ordinance written to give the developer the green light to proceed.  His colleges agreed with him and the document has now been changed to reflect a different set of findings by the Council.  Specifically, Mr Donahue said and his colleagues agreed the project is not well planned and the adjective in the sentence in the ordinance that makes that claim should be removed.  So now Emeryville residents digging through documents at City Hall will learn the Market Place was planned...just planned, not well planned.  That's good to know.

In addition City Hall is now on record noting the Market Place project will not contribute to the well being of the neighborhood but rather it will contribute in some unquantified non-specific way.  It'll contribute they tell us, but the City of Emeryville would rather not say precisely how.  They DO want us to know it'll contribute though.

Council member Donahue, unimpressed with the architectural integrity of the Market Place proposal attempted to remove the word 'iconic' from the ordinance's language but he failed to get support from his colleagues to that.  So now, if anyone thinks the buildings at the Market Place are anything but fabulous, will be corrected.  The buildings there are iconic, the City wants us to know.  You'd think they'd want us to realize that on our own by sheer dint of the groovy tour de force architectural awesomeness of the Market Place.  But any doubters, presumably, will be convinced by inclusion of the word iconic in the ordinance that the buildings are in fact iconic.

Apparently our Councilman Donahue feels a bit squeamish signing his name to a document that makes demonstrably false claims in flowery imprecise language permanently ensconced at City Hall.  That's new for Emeryville.  We're not sure how much value this has for residents but we think it has more than no value.  Maybe this rejection of hyperbole and expectation for more precise language at City Hall will translate into making better actual development.  Maybe with more people expecting a good development to be quietly delivered by City Hall rather than a promise to deliver a good development with some well placed euphemisms will mean a good development will turn into a good development.