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Monday, November 30, 2015

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
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

Sunday, November 29, 2015

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   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

Friday, November 27, 2015

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
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 18th 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

Monday, November 23, 2015

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).

Saturday, November 21, 2015

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.

Monday, November 16, 2015

Our Galling Emery School Board President

School Board President Gets Schooled

Affeldt's Fake Mandate
School Board President John Affeldt
Less than 50% of Emeryville voters
cast their ballot for him.
He considers that a mandate for the 

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

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

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

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

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

  • Avatar

    Hi John,
    I apologize for the delay in responding to you and publishing your comment. I've reached out to Kyle Spencer our author on this story to ask her about her conversations with the two new members of the city council, Diane Martinez and Scott Donahue.
    Here's what she said:
    "Dianne Martinez and Scott Donahue both spoke to me on the record saying they had concerns about the city's current ECCL plan. They were also reported saying this in at least one interview during the lead up to the city council election."
    Thank you for reading and for taking the time to comment with your concerns.
    Lillian Mongeau
    Engagement Editor

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

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

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

Let’s look at the 97% mandate that he claims the election gave him.  Donn Merriam, who did run on an ECCL platform, received 730 votes, only 30 more than former Board incumbent Miguel Dwin, the strongest proponent of the ECCL.   John Affeldt on the other hand received 1,255 votes* or 97% of the possible 1286 possible votes.  But why 1286?  In Emeryville, 2,524 people voted* for gubernatorial candidate.  For the school bond measure, 2,279 people voted*.  This means that less than 50% of the people that voted cast their ballot for John Affeldt.  Even if we just look at the number of people that voted for education issues (the parcel tax), Mr Affeldt received 55% of the vote.  Donn Merriam, again who campaigned as a proponent of the ECCL, received less than a third of the vote.  Miguel Dwin, the loser, even fewer.
The election was not mandate for the ECCL (or for Mr Affeldt), but a reflection of the community’s tepid interest in the schools of Emeryville. The ECCL is over budget, late and just as unpopular as ever.  If Mr Affeldt had ever shown any interest, even intellectual curiosity about public opinion over the ECCL instead of using his position to quash dissent, he might have been more aware and he might not have issued such impolitic and harsh rebukes against the public he would have to later apologize for.  Gall is a word that is apropos at this point.

*from the Alameda County Registrar of Voters.

Thursday, November 12, 2015

RULE Meeting

Residents United for a Livable Emeryville
Come and meet your progressive neighbors and make Emeryville what you want it to be!

Our next meeting will be: (note change of day and venue) 
Sunday, Nov. 15, from 3:00-5:00 pm 
Artists Co Op, 1420 45th St. at Horton St.
(Someone will let you in...meeting room is just inside the door.)

Facilitator:  Judy Timmel
-Tenant relief study session.  Considering our options such as rent control and eviction controls.  
-PBID (Emery Go Round) explored...who, what, why etc. Scott Donahue, City Council member, is guest speaker
-Next City Council election: identifying
-Committee reports

Hope to see you there!

For more info call 510-601-6521
Judy Timmel, RULE Steering Committee

Wednesday, November 11, 2015

Breaking News- Negoiations Complete, City Council Calls Developer's Bluff, Major Concessions for Residents

Market Place Developer Concedes: Will Build Affordable Family Friendly Housing

Progressive City Council Majority/Residents 
Emerge Victorious

Details are leaking out of City Hall today bringing light to what's shaping up to be a major victory for affordable housing in negotiations with the developer of the Market Place development at the hands of the progressive Council majority.  Details have not been confirmed but insiders tell the Tattler that City Center Realty Partners, the developer of the contentious Market Place development, finally folded and accepted the Council majority's terms for building more affordable units, now some 50 in total as well as increasing the number of family friendly units to match what is required by City Ordinance.

The project located at the existing Public Market on Shellmound Street, originally planned for 33 affordable units in the 456 total rental unit mix.  That plan was rejected by Council members Jac Asher, Dianne Martinez and Scott Donahue (the progressive majority).  The new plan, now agreed to by the developer calls for 50 affordable units, bring the project at or very nearly at parity with what exists in Emeryville as far as affordability goes town-wide in terms of percentage, a progressive Council majority goal.
In addition to rejecting the non-parity affordable housing, the progressive Council majority also rejected the "family flexible" plan put forth by the developer.  After negotiation, City Center Realty Partners now agrees to build actual family friendly units as called for by the City's new family friendly housing ordinance.  Originally the developer sought to ignore the new ordinance and instead build some number of what City Center called "family flexible" units, a cheapening of the provisions laid out in the ordinance.

Notably, veteran Council members Ruth Atkin and Nora Davis voted in favor of the previous iteration of the Market Place development, the deal favored by the developer, with only 33 affordable units and no family friendly units.

Details of the negotiations and the final agreement will be revealed at Tuesday's City Council meeting.

Saturday, November 7, 2015

People of Emeryville Pay Swinerton $1.2 million For What?

Swindled By Swinerton

Shame on Swinerton?  Sure But Even More, Shame on the City Council (& School District)

News Analysis/Opinion
$1.2 million.  That's quite a bit of money for a town the size of Emeryville.
It's how much the people of Emeryville are paying to make sure the builder of the Center of 'Community' Life, Turner Construction, doesn't rip us off.  That's a lot of money but for a $100 million+ project, it seems like a prudent and reasonable expenditure.  After all, if our interests aren't assiduously looked out after, Turner Construction, ever mindful of its bottom line and its shareholder's demands for maximum returns on their investment, could cut corners and we'd be on the loosing side.
So the School District has hired another construction firm, Swinerton Builders, to oversee Turner and represent our interests.  Swinerton is supposed to report back to the City Council and the School Board and provide helpful information.  But if Swinerton isn't on the up and up, we will have wasted $1.2 million of taxpayer money.

And that's exactly what has happened.

Swinerton has taken our money and they've been representing not our interests, rather, they've been representing Turner's interests.   That's quite a charge...but that's exactly and demonstrably what they've been doing.  Swinerton works for Turner and Turner works for their shareholders...and us?  Who works for us?  We're the deep pockets, we pay the bills.

Two recent issues highlight the breakdown here; the issue of the community pool and the issue of a recent Turner request for a noise waiver, relief from the constraints of our Noise Ordinance.

They're Not Working For Us
The community pool fiasco has been previously reported on by the Tattler, but for sake of illustrating how Swinerton is not working for us, the salient point is that Swinerton used the issue to make excuses for Turner for the 200% cost overrun there.  What we didn't hear from Swinerton is how we (the City of Emeryville and the School District, the owners of the community pool) could use what contractual leverage we have to effect a better outcome for us.  Instead, Swinerton simply reported the problem, stated Turner's reasons for why we need to pay more than twice what they originally said we would need to pay, and then Swinerton recommended we pay the higher amount.  Swinerton's loyalty, shamelessly fell on the side of Turner, a fellow builder.  

Again, They're Not Working For Us
And then there's last Tuesday's performance by Swinerton.
Turner is under contractual obligation to finish the Center of 'Community' Life on time.  If they fail to meet the deadline, there will be financial penalties.  It's standard contractual stuff.  So Turner has an interest in making sure they finish on time.  They came before the City Council on Tuesday requesting permission to work starting now, on Saturdays.  But the contract doesn't provide for that and Emeryville's Noise Ordinance forbids it specifically.
And so Turner is seeking some padding in their schedule to make sure they'll finish on time, hence their request for a waiver from the Noise Ordinance.  Actually, Turner didn't even ask themselves, rather they sent their colleagues at Swinerton to ask for them.  The City Council granted a waiver but the point here is not whether the people of Emeryville have interest in giving Turner more time to assure the project will finish on schedule, the issue is that Swinerton didn't inform the Council where their (the Council's) leverage lies.
Oops!  They misspelled their 
own name in their logo: 
Make that 'Swindleton' Builders

If Swinerton were working for us, they would have explained how the City Council could use their leverage over Turner to extract concessions in trade for the noise waiver.  But Swinerton isn't working for the people of Emeryville, they're working for Turner Construction (and collecting our $1.2 million for their efforts).

Turner Construction is a publicly traded corporation.  They're in the business of looking out after their shareholder's interests.  That's how it's supposed to be.  But conversely, our City Council and our School Board is supposed to be looking out after OUR interests.  That's how it's supposed to work.  Turner would never give anything to us for free.  We wouldn't expect that and their shareholders would be understandably up in arms.  But neither should we expect our representatives to give Turner anything away free.  We have something the profit seeking corporation wants: the ability to disrupt our peaceful Saturdays.  We should negotiate with the corporation.  Give away our peaceful Saturdays, fine.  But get something in our interest in return.  We don't send representatives to City Council or the School Board to give away our stuff for free.  We expect them to work for us just like we expect Swinerton to work for us.  Both Swinerton and the City Council is being paid by us after all.  What happened to 'fee for services rendered'?

Where Does the Allegiance Naturally Fall?
Swinerton has allegiance in this equation, to Turner.  That's not surprising.  These contractor builder developer corporations look out for each other.  In San Fransisco right now Turner Construction is being paid to be the overseer to Webcor Builders for the massive Transbay Terminal project. And Webcor is likely overseeing a different contractor elsewhere.
Here, the City/Schools in Emeryville has a 'one off' relationship with Swinerton.  But Turner and Swinerton have an ongoing business relationship.    In Emeryville Swinerton is overseeing Turner now.  But next year perhaps it'll be Turner overseeing Swinerton in a different project in a different town.  That what these guys do. They trade places with each other as paid consultant overseers.  It's a very cozy business relationship and in Emeryville it's costing us $1.2 million.
It's cozy and it's also highly lucrative.  Swinerton is paying one person to be the liaison between Turner and the City/Schools.  Probably paying him $100,000 or so.  The rest of the $1.1 million is pure profit for Swinerton.  It's a nice gig if you can swing it.  And Swinerton (this time) can swing it.  Maybe next time it'll be Turner on the receiving end of the rotating door.

We don't expect Council members Nora Davis or Ruth Atkin to demand the people's interests be looked out for.  That wouldn't be in their character.  They've always sided with the developers over the residents in our town.  But the new progressive Council majority?*  This is unexpected.  Come on guys.  This isn't why we elected you.  Do your job.  We want our interests represented at City Hall.

* Councilwoman Jac Asher was absent Tuesday 

Thursday, November 5, 2015

Breaking News: New Delay at Center of 'Community' Life (Again)

High School Won't Be Ready 
City/Schools Committee Learns (for Third Time)

Unknown Where Students Will Be 
Come Spring 
Tonight a representative of Swinerton Builders, the paid liaison between the City of Emeryville and Emery School District and Turner Construction, the builder of the Center of 'Community' Life (ECCL) told the City/Schools Committee the high school under construction at the San Pablo Avenue site will now not likely be ready until fall 2016, the third announced delay for the school in recent months.  This most recent delay, coming a mere three weeks after the last announced delay, puts the high school part of the ECCL a year behind schedule.

Using cagey and indirect speech, John Baker, Swinerton's intermediary, said the school building would be "substantially" finished by March, a reversal from early October when he announced the only thing not completed at the high school by Turner would be the elevator but that would be ready by March.  Oakland Unified School District indicated at that time Emery Unified would not be permitted to rent Santa Fe after March since they plan a remodel of their school to ready it for their own students next fall.  As of now, it is unknown where Emery High School students will be going to school next spring but Superintendent Rubio told the City/Schools Committee tonight he was busy trying to convince Oakland to let Emery continue renting until the end of the school year early next summer.

The City and the School District have a $1.2 million contract with Swinerton Builders to represent the people's interest and to oversee Turner Construction.

The whole ECCL, high school, elementary school, pool and community center originally was supposed to be completed in 2015.

Monday, November 2, 2015

Critical Report Calls Center of 'Community' Life "Stymied by Reality"

Hechinger Report:
The Story of Emeryville's Center of 'Community' Life a "Cautionary Tale"

A Columbia University educational equity nonprofit journalism group released a report this week on Emeryville's beleaguered Center of 'Community' Life (ECCL) and found the schools/city joint venture now being built on San Pablo Avenue "plagued by political controversy, financial wrangling and practical roadblocks".
The story, featured in the Hechinger Report is the first published outside of Emeryville, critical of the ECCL and includes citizen's concerns as opposed to simply posting administrator's glowing proclamations as has been the standard up until now.
Having noted that, Emery School Board President John Affeldt is quoted poo pooing citizen's concerns over the ECCL as those of a "vocal minority".  However, the report was written before last week's revelation directly countering Mr Affeldt's remarks from Emery School Superintendent that parental approval of the ECCL and its plan to close the existing elementary school is evenly split.  "It's fifty fifty" Superintendent John Rubio told attendees at the October 21st School Board meeting, information he said he had gleaned from a recent opinion poll of parents.
Mr Affeldt went on in the story to excitedly claim the ECCL was going to deliver "Emeryville's first library", an erroneous statement, at least if one believes the Emeryville City Council.  A majority of City Council members have repeatedly said over the years City Hall will not be funding a public library at the ECCL site and the only library to be built there will be the school library.

The report mainly centers on the problem with the ECCL site being too small, a finding also made by the State of California and an increasingly agitated base of parents arising from the fact that the School District has given them short shrift.

Here is the Hechinger Report on the Emeryville Center of 'Community' Life, dated November 2nd:

Hailed as a ‘bold vision,’ an innovative school plan hits roadblocks

Controversy over a California community center that would unite a school district and a city shows how popular ideas can lose favor once they are executed

EMERYVILLE, Calif. — The Emeryville Center of Community Life was supposed to be a slick, 150,000-square-foot community schools complex that would assist this city’s neediest students and their families by providing dental, mental health, and tutoring services on the same site where they attended school. It was first proposed more than a decade ago just as the community schools model was becoming increasingly popular.
In 2013, the National League of Cities hailed the Emeryville plan as a “bold vision.” It was also touted in a Fast Company article titled “This Is What It Looks Like When a School Becomes a Community Hub.”
But for folks here in this quirky swath of tech-start-ups, shopping malls and renovated artist studios, the citywide plan has proven to be less of a solution and more of cautionary tale, a lesson in how hard it can be to take a community schools dream and turn it into a workable reality, even when almost everyone likes the idea.
Emeryville’s small size — only two schools and fewer than 800 students — may not be typical of districts experimenting with the community schools idea. Many are in larger, more urban areas. But with the growing interest around the country in community schools, Emeryville’s problems are an important cautionary tale.

For the rest of the story please click HERE