Former Emeryville City Attorney Now Works for City's Adversaries

Rotating Door at City Attorney's Office

Emeryville's former city attorney Mike Biddle is now employed by the private law firm Burke, Williams & Sorensen LLP, the same firm hired by countless Emeryville developers and businesses over the years to push Emeryville projects that Mr Biddle ostensibly battled in the people's interest while he was employed at City Hall the Tattler has learned.   Mr Biddle was forced out of his city attorney job last April and he still collects severance pay from Emeryville's taxpayers in addition to his pension from the City.  The switch by the former City Attorney to the firm he previously fought against illustrates the sometimes chummy nature of would be adversarial attorneys interacting in the private sector and public sector.   Mr Biddle's switching sides upon retirement is analogous to the infamous congressional rotating door that sends retiring former Congress members into the same lobbying firms they ostensibly did battle against while doing the people's work.

Chummy perhaps but while Mr Biddle still worked for the City, Burke, Williams & Sorensen was hired to fight the City by Pixar, the East Bay Bridge project, Bay Street Mall developer Madison Marquette and others and his new partnership position at the shop of his former would be nemesis have caused some in town to question Mr Biddle's loyalty to the people's business says former City Councilman Ken Bukowski.  Mr Bukowski headed up an unsuccessful ballot initiative, Measure F in 2011 to fire Mr Biddle for among other things, a reported lack of fealty to the City.
Mr Biddle's fealty had been questioned before as he had much interaction with Burke Williams & Sorensen while he still worked for the City of Emeryville, most infamously when he hired them (at taxpayer expense) to help him fight the City Council in May 2014 as they attempted to get him to write language for a charter city ballot initiative, a job he had refused to do.  Mr Biddle also hired BW&S in 2011 (again at taxpayers expense) to help him fight off the Measure F initiative meant
to fire him.

Mr Biddle is still working for City Hall even after his retirement and independent of BW&S as a paid contractor and he has been retained by the City for work on the contentious Public Market project.
Mr Biddle could not be reached for comment on his new employment situation.

Carolyn Lehr Selected New Emeryville City Manager & Michael Guina Elevated to City Attorney

Emeryville has hired a new City Manager, Carolyn Lehr and a new City Attorney, Michael Guina, City Hall revealed today.  In a memo to the City staff, outgoing City Manager Sabrina Landreth made the announcement; the City Council has selected Sacramento native Carolyn Lehr to replace Ms Landreth and current Emeryville Assistant City Attorney Michael Guina will replace outgoing City Attorney Mike Biddle.

New Emeryville City Manager Carolyn Lehr
She arrives from Chowchilla CA where
she has served as interim City Administrator
since December of last year.

Ms Lehr graduated from San Jose State and obtained her MPA from Rutgers University. In addition to over 25 years in local government, she spent seven years in product administration in Silicon Valley and also served as a public relations director to a community hospital.  Carolyn is married with two sons.
She will begin her work in Emeryville on June 19th.

Michael Guina will serve as City Manager as a result of a tentative agreement beginning July 1st.  He was first hired at Emeryville as a Deputy City Attorney in 2003, later he worked for a private law firm, Oakland's Burke, Williams & Sorensen as a partner.  Mr Guina returned to Emeryville in 2013 where he has served as Assistant City Attorney in Mr Biddle's office.

Breaking News: Emeryville's City Attorney Abruptly Resigns

Mike Biddle, Emeryville's long embattled City Attorney suddenly announced his resignation before a small audience in the City Council chambers tonight.  He leaves his position after 26 years with the City.  Mr Biddle has long had a rocky relationship with some Council members but since last November's City Council election and the rise of a new Council majority, relations have been strained.  Even still, while some city employees might have known the resignation was looming, to the citizens, the news comes as a surprise.  
The resignation comes in July after Mr Biddle's contract expires.  He did not publicly specify what he will do after he leaves Emeryville.

Alameda County Grand Jury: City of Emeryville is Incompetent, Lacks Fiduciary Expertise

Scathing Report:

Nora Davis, Ruth Atkin and Kurt Brinkman Put Developer's Needs Ahead of Residents

City Attorney Mike Biddle is a Dilettante

The independent Alameda County Grand Jury released damning and condemnatory findings this week from a probe into a City of Emeryville scandal involving inappropriate financial dealings that put the needs of Bay Street Mall developer Madison Marquette ahead of Emeryville resident's needs.  At issue is the City Council majority's attempt to forgive $6 million of an $18 million loan to Madison Marquette by the former Redevelopment Agency at the behest of the City staff last year.
The Grand Jury's report excoriates the staff, particularly the City Attorney Mike Biddle and the recently retired Director of Finances Helen Bean for doing the bidding of the favored developer Madison at the expense of the people of Emeryville.  The scathing report also blamed City Council members Nora Davis, Ruth Atkin and Kurt Brinkman for voting to forgive the loan.

The Grand Jury said they were troubled by the fact that significant financial decisions were made with "insufficient research".  The report found the staff and the Council failed to conduct due diligence and that the staff lacks fiscal expertise.  The three City Council members and the staff were found to be incompetent and they failed to fulfill their fiduciary duty to the citizenry.

The Secret News has the whole story covered HERE.

City Attorney Relents on Council's Charter City Directive

City Now Has Proposed Charter 

At the June 3rd City Council meeting, Mike Biddle, the city attorney, finally relented and produced a "short and focused" charter for the City of Emeryville as he had been expressly directed to do on three separate occasions by the Council, a growing source of friction publicly played out in dramatic fashion at City Hall and covered by the Tattler.  The two page document presented Tuesday by Mr Biddle spells out a new municipal governance model, a 'charter city', that will be voted on by the Council and then taken to Emeryville voters in November for their consideration.
Mr Biddle had previously resisted doing the two page work tasked to him by the Council repeatedly since April, insisting that only a 12 page document would suffice despite evidence of numerous other California city's one and two page charters.
The City Attorney had come under increasing fire from the Council for his obstinacy on the issue, eventually alienating all five members  even Councilwoman Nora Davis, his biggest supporter at City Hall.
The City Council had explained that a lengthy charter, filled with legalese, would only serve to confuse voters, leading to an unnecessary defeat for the proposal in November.

The Council has collectively expressed desire to include in the charter provisions to levy a real estate transfer tax as neighboring cities have done in order to make up for lost revenue after the demise of the Emeryville Redevelopment Agency.  Emeryville's current governing model, 'general law', a model orchestrated by Sacramento, does not permit such a tax to be implemented.  The legal provisions of charter cities, sometimes referred to as 'home rule' or 'local control' cities however, allow for local voters to decide such things.

The City Attorney in Emeryville serves at the pleasure of the City Council.

City Attorney Again Subverts City Council on Charter City Initiative

Council Rebukes City Attorney Biddle: Insubordinate 

After Emeryville City Attorney Mike Biddle was publicly chastised by the City Council May 6th for failing to produce suitable language for Emeryville voters to consider in November regarding the 'charter city' ballot initiative the Council is pursuing, they again sharply rebuked Mr Biddle last Tuesday for again failing to follow the same directive. Councilwoman Nora Davis, the City Attorney's strongest defender on the Council summed up the frustration she and her colleagues were feeling when she warned Mr Biddle, "You're not listening to what the five of us are saying."
  
The Council voted unanimously in April to bring to the voters the idea that the governing structure of the city be changed from what it is now, a 'general law' city, a structure that mostly defers to Sacramento rule, to a 'charter' city, a structure that allows for more home rule or local control.   The Council wants voters to also decide if they want to capture a real estate transfer tax to make up for lost revenue in the wake of the demise of the Emeryville Redevelopment Agency two years ago.  The ballot initiative would increase real estate transfer taxes to $12 per $1000 assessed valuation, the same as Alameda but less than neighboring cities Oakland and Berkeley.
The Council wants to write a short and focused charter so as not to confuse the voters in November but also because the focus of the proposed charter is narrow.  The idea is to retain all the provisions of our current structure save the imposition of the real estate transfer tax.  They indicated they are pursuing charter status because a real estate transfer tax is not legal under the provisions of general law city mandates.  A charter city is free to let the citizens vote to impose a real estate transfer tax.

On Tuesday, Mr Biddle again failed to present a short and focused charter, standing by his previously released 12 page document.  In so doing Mr Biddle subverted a direct order by an exasperated and  unanimous Council on May 6th after first being told at an April 22nd Council meeting.  Instead of facing an angry Council by himself this time, the City Attorney brought in a colleague attorney paid at the taxpayers expense, Manuela Albuquerque who backed up Mr Biddle's claim that a short and focused charter is impossible.  However examples of seven different California city's charters were included in the Council's packet as Mayor Jac Asher had previously requested be presented at Tuesday's meeting.  All seven of the charters are under two pages long as opposed to the 12 pages produced by Mr Biddle, the shortest he can make it he says.
Ms Asher expressed exasperation at the on-going recalcitrance of the City Attorney, "I don't understand it" she said from the dias.

Mr Biddle's hired attorney is the same Manuela Albuquerque he hired to fight off the unsuccessful 2011 Emeryville Measure F  ballot initiative that sought to fire him.

After the strong rebuke from the Council, Ms Albuquerque apologized for the "misunderstanding" Tuesday.  Mr Biddle told the Council he would try to appease them for the June 3rd meeting.

All five Council members for a third time told the City Attorney to come back to them with a short charter for the next meeting.  Ms Davis warned Mr Biddle, who serves at the pleasure of the City Council, against any further insubordination; "We trump" she said tersely.

City Attorney Rebuffs City Council on Charter City Directive

City Council Chastises City Attorney

on Charter City Text

Emeryville City Attorney Mike Biddle drew strong reactions from Council members at last Tuesday's City Council meeting as they heard him explain he could not produce a short and focused ballot initiative text to forward to Emeryville voters this November as he had been so directed by them.  Mr Biddle's presentation, produced during the two weeks before Tuesday's meeting, was revealed to be 12 pages of dense legal verbiage.  It was as concise as he could make it he told the Council members.
At the previous meeting the City Attorney had been directed, in a unanimous Council vote, to pattern Emeryville's proposed Charter City initiative on that of neighboring city's charters, some only a few paragraphs long.
The Charter City initiative is being forwarded to Emeryville voters by the City Council in hopes of enacting a real estate transfer tax in response to a critical loss of revenue for City Hall after the Redevelopment Agency was shut down by Sacramento two years ago.  The City Manager has shown how City Hall no longer has the funding to properly maintain the infrastructure already in place in

Emeryville City Attorney Mike Biddle
Chastised by City Council

Emeryville.

Emeryville is currently a 'general law' city, a legal construct that gives more power over local matters to Sacramento.  A charter city conversely gives more power to the local voters and would, in the case of what the Emeryville City Council is directing in a November election, enable them (the voters) to OK a transfer tax, something not legal for general law cities.

The City Council was adamant that the language for the Charter City initiative be "short and focused" as Councilwoman Nora Davis indicated.  Mr Biddle was directed to draw up language for the voters approval in November that would make it clear that the current laws guiding the City would remain unchanged but that a real estate transfer tax be initiated at a rate of $14 per $1000 of assessed valuation, two dollars less than the existing transfer taxes of Oakland and Berkeley.  Emeryville now only gets $.55 per $1000, the legal maximum for general law cities.
The Council told the City Attorney they wanted the initiative to be as short as some neighboring cities have done because a long and arcane text in the voter guide would unnecessarily confuse voters and would likely draw NO votes based on ignorance.   Mr Biddle explained Tuesday that he had heard what the Council had directed him to do but he felt compelled to "add some meat" to the spare template language proffered by the Council after he conferred with colleagues.
Mayor Jac Asher summed up the Council's frustration with the City Attorney, "This will look like 12 pages of change [to the voters]" she said.

The Council instructed City Attorney Biddle to go back and bring them a much shorter text, regardless of his reservations.

'Transit' Center Project Mysteriously Missing from Emeryville Capital Improvement Presentation

'Transit' Center Pushed Down the 
Memory Hole

Opinion
If the City of Emeryville planned on spending $4.2 million on a specific capital improvement project between the years 2014 and 2019, wouldn't you think that project would appear in a City Hall produced document for public edification entitled 'Capital Improvement Program Fiscal Years 2014-15 to 2018-19'?   Especially if smaller projects representing less public money were highlighted in the document?
That's what we thought.  So we were surprised when the City Staff gave a thorough account of planned capital spending and the 'Transit' Center, a Wareham Development project planned for Horton Street with it's $4.2 million publicly purchased amenity of four Amtrak bus bays, was completely  left out of the document handed out to the public and discussed yesterday morning.  Other  projects, like the Senior Center Rehabilitation at $1.9 million, the Peninsula Fire Station Renovation at $1.3 million, the Art Center at $3.9 million were explained in detail by the Staff but strangely, the 'Transit' Center at $4.2 million was not.  
"It was an oversight", Public Works Director Maurice Kaufman explained when asked.

An "Oversight"... Was it Really?

The City used the Saturday meeting to explain about the Capital Improvement Program which is essentially a 'wish list' for City projects to benefit the people.  The City also wished to elicit comment from the public about the CIP.
They took pains to describe the negative repercussions on the CIP as a result of the demise of the Emeryville Redevelopment Agency (RDA) and about how the City had rescued some projects from the clutches of the State of California when Sacramento declared Redevelopment Agencies illegal state-wide last year.  Emeryville had four projects so rescued and some former RDA funds were permitted to be unlocked.  The State is basically letting us use our own money to fund these projects. The four projects are the Center of 'Community' Life on San Pablo Avenue, the Art Center at City Hall, the South Bayfront Ped/Bike Bridge over the railroad tracks and the 'Transit' Center project.   Other projects in the CIP wish list are to be funded by the City with money generated without the Redevelopment Agency. The three projects included by Staff were described in detail Saturday but the 'Transit' Center never made it into the document or the discussion.  Observant people with a knack for budgetary spreadsheets might have seen the small text entry of the $4.2 million in an adjoining financial accounting however.

The crowd Saturday was asking for capital improvement funded amenities one would expect from residents: parks (for dogs and people), bike and ped infrastructure, street trees and those kind of things.  Nobody there was clamoring for bus bays.  In fact we've never heard any Emeryville resident ask for more bus bays from the public coffers.  Yet that's what we're getting.  And that illustrates the point: The 'Transit' Center project is not popular with the people of Emeryville.  There already are bus bays at the Amtrak station near the proposed "Transit' Center.  The people in Emeryville don't think it's a wise use of limited public money. The Emeryville Planning Commission, a body hand picked by the City Council, agrees with the residents; they twice voted NO to the 'Transit' Center, stating there wasn't enough in public amenities to justify the $4.2 million public cost.  But the City Council majority overrode the Planning Commission and voted to grant the public money to favored developer Rich Robbins, CEO of Wareham Development  anyway.
Now that that's done, obviously, they want it to just quietly disappear.  They'd rather not needlessly crow about it and remind people that it's developers that call the shots in this town.

Sometimes it's the little things that give away the bigger picture in Emeryville.  Like when our City Attorney Mike Biddle leapt out of his seat, grinning ear to ear, and shook the hands of Wareham representatives in attendance at the January 21st meeting after the Council voted (3-2) to override the Planning Commission and give the green light and public money to Wareham's Rich Robbins.  Sometimes it's the non-existent things that tell the tale; like when the 'Transit' Center got pushed down the memory hole.

'No Lawsuit Clause' : City Lets Wareham Off the Hook

Councilwoman Nora Davis: "We don't like to let people off the hook in this city, right Mike?"

Mike Biddle, City Attorney: "Yes we do"

Opinion
Sometimes it comes off without a hitch at the dog and pony shows known as Emeryville City Council meetings.  But sometimes, well, let's just say it doesn't come off as planned.

Take last Tuesday's Council meeting; a little back and forth, meant to play to the camera, between Councilwoman Nora Davis and City Attorney Mike Biddle didn't quite turn out as the councilwoman expected.  The interplay ended up revealing a darker truth about Emeryville... a corner of the covering having been lifted a little.

Councilwoman Nora Davis
Excuse me while I manage
these critics.....
Ooooops!

Councilwoman Davis was trying to mollify critics of the "No Lawsuit Clause" agreement of the 'Transit' Center development on Horton Street.  The clause stipulates that the developer of the site, Wareham Development is let off the hook for toxins not known about now but subsequently discovered as they conduct their clean up work at the site.  By signing off on the agreement, the Council forever signs away the ability to sue Wareham or anyone else to protect the people of Emeryville.  The Council abrogates their fiduciary duties, saddling the taxpayers with added financial responsibilities should something go awry.  The agreement offers Wareham security and comfort while offering the people of Emeryville nothing but a possible debt of unknown quantity.

The Council finally approved the entire contentious development Tuesday night leaving many residents in dismay over the No Lawsuit Clause but also the agreement that lets Wareham leave significant levels of highly toxic waste on the site under a proposed tower, a reneging of a previous agreement to properly clean-up the site by removing all the toxins.

As Emeryville residents tried to take stock of what was given away Tuesday night, the particular repartee between Councilwoman Nora Davis and City Attorney Mike Biddle was a moment of clarity, emblematic of the sycophantic depths attainable by this Council majority.

City Attorney Mike Biddle
The agreement lets Wareham off the hook.
They must be offered comfort at
the expense of Emeryville residents.

Ms Davis started out agreeing the No Lawsuit Clause offered up by the city staff for approval by the council was a non-starter.  Ms Davis laid it all out; playing to the camera, she showed how she's looking out for the resident's interests with a question for Mr Biddle, "I'd like to hear from Mr Biddle on this 'no suit clause'.  If we could have a little more clarification on that because I think it's a cause of concern for the Council and the community.  We don't like to let these people off the hook in this city."  To which, Mr Biddle responded with a lawyerly yes, we DO like to let people off the hook in this city....leaving Councilwoman Davis speechless; her propaganda moment wilting on the vine.

Mr Biddle explained to Ms Davis' definitive statement about letting people off the hook, "It's been a negotiated position between CBS [the owner of the site before Wareham purchased it], Wareham and the City when they move forward with the clean-up pursuant to the plan we approved that we would release them from any future claims."  Mr Biddle went on to say other developers in Emeryville have been similarly let off the hook with regard to toxic site clean-up releasing them from future claims; notably Madison Marquette, the developer of the Bay Street Mall.  He said these developers want protection from the City coming back after them for additional clean-up if additional toxins are discovered or anything else that may go wrong.  "We're releasing them from any ability of the City to pursue them based on what we know today.  This provides [Wareham] some level of comfort that the City will not pursue them."

Wareham's Rich Robbins
The man behind the curtain

As the City staff, who recommended to the Council to over-ride the Planning Commission decision and approve the Transit Center said, this site is a "toxic waste dump" and should be cleaned up.  But repellent to Emeryville residents, the project as approved lets Wareham off the hook for the toxic waste dump that will remain because of the significant quantities of poisons that get left behind, forever entombed beneath the new building.  And once again the three Council member majority show their allegiance to Wareham: for also repellent to Emeryville residents is how Wareham is also let off the hook in the case that we need to sue them later. The No Lawsuit Clause agreed to by Nora Davis, Kurt Brinkman and Ruth Atkin works in the interests of Wareham; disadvantage Emeryville.

The people of Emeryville DID get one thing in the embarrassing fiasco however.  We did get to see Council member Nora Davis publicly blow it: her legendary and prodigious political acumen revealed to be less than prodigious.  We got to see the curtain lifted and Wareham's CEO Rich Robbins at the controls.

Video courtesy Emeryville Properties Association
   

East Bay Bike Leader Says Emeryville is Anti-Bike; City Hall Complicit, Possible Misuse of Funds Alleged

From the East Bay Bicycle Coalition Blog:

Emeryville City Attorney, Traffic Engineer Say NO to Safe Bike Access

BY DAVE CAMPBELL 
ACTION ALERT

Imagine if San Pablo Ave & 40th St looked like this:

You shouldn’t have to dodge right-turning cars on your bike commute on 40th St as you cross San Pablo Ave, and from W. MacArthur Blvd you shouldn’t have to get off your bike and walk across San Pablo Ave to get to the new bike lanes on Adeline St. Yet this is exactly what Emeryville expects you to do because their conservative city attorney [Mike Biddle] has legal concerns and their traffic engineer [Maurice Kaufman] is concerned about slowing down cars in order to make your bike commute safe. We need your help to change this.

We are asking for advance bike boxes to be reincorporated into 40th St at San Pablo and that a safe bike crossing of San Pablo at W. MacArthur be included in the project. Please contact these key Emeryville City Council members and let them know you want full bike accommodations in these two intersections.

Transportation Committee Members:

Mayor Kurt Brinkman

Councilmember Nora Davis

Other Three Council Members:

Vice Mayor Jac Asher

Councilmember Ruth Atkin

Councilmember Jennifer West

If you can attend a key meeting of the Public Works Committee on July 18, 9:00am at City Hall Garden Room, please join EBBC and Emeryville BPACmembers in pushing for a better solution that allows you to stay on your bike and avoid having to dodge cars on your bike ride to work.

We appreciate Emeryville’s willingness to stripe green bike lanes at critical points in these intersections to highlight the presence of bicyclists-it helps bike safety, but much more is needed to get you safely across busy arterial streets. Emeryville originally included advance bike boxes with right turn prohibitions at San Pablo Ave & 40th St to get you safely across San Pablo Ave without having to dodge right-turning cars, but then removed them at the insistence of the traffic engineer and city attorney. We want the bike boxes put back into the plans. This intersection has the highest volumes of bike traffic in Emeryville.

These bike boxes were proposed in Emeryville’s Safe Routes to Transit grant application for $820,000. They have been removed from the project.

Equally frustrating are suggestions that bicyclists get off their bikes and walk across San Pablo to get onto Adeline St. and its new bike lanes where W. MacArthur intersects with San Pablo Ave. There should be a direct and safe bike connection between W. MacArthur Blvd and Adeline St, across San Pablo Ave. This intersection has the 2nd highest volumes of bike traffic in Emeryville.

Imagine a traffic engineer telling a driver they need to get out of their car and walk half a block and then get back in their car to continue their commute? This is the level of inconvenience being designed into two new intersections in Emeryville for bicyclists. It’s time for you to be able to make everyday trips in Emeryville on the streets you ride, like 40th St and W. MacArthur. Contact your City Councilmember today!

View the city’s existing plans for the 40th/San Pablo and Adeline/W MacArthur/San Pablo intersections online here.

----------------------------------------------------------------------------------

Dave Campbell is Programs Director at the East Bay Bicycle Coalition and frequently offers his prodigious bike policy expertise at Emeryville's Bicycle Pedestrian Committee.  Founded in 1972, the East Bay Bike Coalition is the premiere bicycling advocacy organization in the East Bay.  Among their accomplishments are Bikes on BART, Bike To Work Day and passage of Measure F ($11 million for local roads and Complete Streets). The non-profit group, open to all, works for "safe, convenient and enjoyable bicycling for all people in the East Bay". 

School District and City Withhold Public Documents from Tattler & the Public

Public Better Off Being Ignorant Says City Attorney & School District

Opinion
Emeryville's City Attorney has ruled that documents in the possession of the City and the School District outlining meetings of public officials that took place behind closed doors will not be made public according to a letter recently received by the Tattler.  The City Attorney, Michael Biddle, ruled that the release of the documents would harm the public now and that the public would be further harmed later because government officials would not be able to engage in "robust" behind closed door discussions necessary for good public policy formulation.

One of the documents, a major traffic study regarding the new Emeryville Center for Community Life (ECCL), was requested by the Tattler in April from both the School District and the City.  Both refused to provide the document in response to a California Public Records Act request and as a result Emeryville residents can now only guess what public officials know about the traffic impact that will be caused by the ECCL that officials are unwilling to share with the public.

City Attorney and interim City Manager
Michael Biddle (on left) with recently retired
City Manager Pat O'Keeffe 

The Emeryville Center for Community Life, still years from being completed, has recently disappointed residents that hoped it would live up to the environmental promises made by both School District and City officials.  First, this February we saw the School District request special permission to be exempted from the City’s LEED environmental standards for Emeryville public buildings. In a 3-2 vote, the City Council allowed this environmental promise to be broken.

More recently, in April, we saw the School District back before the City Council requesting that it be exempted from another environmentally-friendly requirement that it found bothersome, the General Plan’s requirement that there be a bicycle and pedestrian path along the western property border of the proposed ECCL site. While this 3-2 vote of the City Council preserved the path in the City’s General Plan, none of the most recent ECCL designs show any intention by the District of actually building the required path.

With the School District’s record clear, the Tattler has decided to watch carefully the District’s compliance with the California Environmental Quality Act (CEQA) as it proceeds with the ECCL design and construction.  On April 11th the Tattler wrote ECCL project director, Roy Miller, requesting all Environmental Impact Reports related to the planned ECCL, all CEQA notices, and to be placed on a list of “interested parties” to receive all future CEQA notices.  Mr. Miller replied that such documents were not currently available and would be available at the District office once “they have been prepared for public release”,  presumably after having been scrubbed clean.

However, we were surprised a few days later with the release of the monthly Progress Reports, dated March 1 and April 1, prepared by the City’s Building & Planning Director, Charlie Bryant, which each describe the School District providing the City with a copy of a traffic study for the ECCL project, and the City’s Building and Planning department responding to the District with comments.  The Progress Reports reveal no details of the traffic study.

If the earlier request for CEQA-related documents was not clear enough, the Tattler again wrote to the School District’s Roy Miller to request a copy of this ECCL traffic study.  For good measure, the City also received a request for the same ECCL traffic study document.

After several days, lawyers for both the City and the School District flatly refused the Tattler’s request for Public Documents.  City Attorney Biddle responded on behalf of the City that the traffic study was a “draft” not subject to the Public Records Act.  Mr. Biddle’s letter claims that “the public interest in withholding those records clearly outweighs the public interest in disclosure,” citing a California Supreme Court decision called Citizens for a Better Environment v. Department of Food and Agriculture. 

Phony Case Law
Readers might find it as amusing as we did to read the court opinion cited by Mr. Biddle (in the link above), because what the Court actually decides in that case is that the documents at issue have to be disclosed to the extent the document contains factual material and that only the expressions of opinion have to be redacted.  So, clearly this top secret ECCL traffic study is either entirely a work of opinion, and therefore not subject to disclosure, or a work containing factual material that the City and School District are improperly withholding from the public.  This leaves one to wonder what value a traffic study would have to a CEQA process if it were made up entirely of opinion and contained no facts on which to base those opinions.   Leave it to our School District to break exciting new ground in purely fictional traffic studies!  Bravo!  The Tattler expected nothing less.

Mr. Biddle also argued that the documents requested were “deliberative materials necessary for robust agency discussion” and therefore subject to an exception to the Public Records Act intended to foster “robust policy discussions.” This is what the Tattler has always found to be true of both our City and School District. They never shy away from a “robust” policy debate… just so long as the public isn’t included.  If we're allowed to listen in, presumably the talk becomes wimpy and feeble.

This City and this School District, fearful as they are of transparency should come clean with regard to this withholding of documents.  We ask again, are these environmental documents for the Center of Community Life factual in nature?  If so, the City Attorney's own citation requires their release to the public, by his own reckoning he must make them available.  And in that case, Mr Biddle and the School District is wrong, for they are harming the public more by withholding these documents than by releasing them to the rightful owners, the public.

City Hall Reveals Plans For Anna Yates Elementary School : Sell To Developer

Elementary School To Be

Torn Down

Sold To Highest Bidder

A question much on the minds of Emeryville citizens has finally been answered by a new posting on the city's website. Citizens have been asking City Hall and School District officials what is to become of Anna Yates Elementary School after it is closed to makeway for the new Kindergarten through 12th grade school at the Center of Community Life? The answer has been revealed by the City Attorney in a staff presentation packet for a meeting at City Hall on Tuesday: It is to be torn down and sold off to a developer to build 43 lofts and condos.

The packet goes on to reveal the other surplus School District property, former middle school Ralph Hawley, is to be demolished and turned into 35 condo units.

Erosion Of Trust For School District

The School District has for years expressly told citizens selling off of the two schools will not happen after the Center of Community Life gets built. They refused to say however, even when asked directly, what would be the fate of the two properties...that is until now. The revelation of the plan to sell off the properties is likely to stoke an increasing erosion of trust with the public for the School District. It will likely empower the nascent grassroots group formed recently to save Anna Yates Elementary from the School District's formerly announced plan to abandon the popular school...it's one thing to abandon a school and quite another to demolish it. 

The City Attorney Mike Biddle has made the calculations to build lofts and condos as part of the appeal the city is making to Sacramento's Department of Finance from an earlier decision denying some $22 million in funds to help build the community center part of the Center of Community Life. After the break up of the State's redevelopment agencies, so-called 'successor agencies' were set up State-wide to wind down the redevelopment agencies and to finish up the work started but interrupted by the ruling from the Governor disbanding the agencies.

On the docket for Emeryville was the Center for Community Life's community center part to be paid by Emeryville's Redevelopment Agency and submitted by the city for the Department of Finance's consideration to continue funding it. The city of Emeryville lost that initial decision but it's now appealing and the decision that the "surplus" School District properties will be sold to developers is being forwarded to the State in order to show them they will receive increased tax increments from the new condo properties if they fund the Center of Community Life.

The city slated $25 million in city Redevelopment funds to be spent on the Center of Community Life, added to what was to be $95 million from voter backed Measure J school bond funds. Some $3 million of the city funds has already been spent before the State shut down and a plunging assessed valuation in Emeryville properties has lowered the Measure J bond raising capacity to about $40 million.

The following is the text of the staff presentation to be made to the the Successor Agency meeting on Tuesday at City Hall:

The ECCL Project envisions that grades K-12 will be located at the ECCL Project Site and thus the existing EUSD facilities at the Ralph Hawley Site along 61st Street and the Anna Yates Elementary Site along 41st Street may become surplus. Likewise, by locating the City’s recreation programs at the ECCL Project Site, the City’s existing recreation facility along San Pablo Avenue may likewise become surplus. While neither the City or EUSD have made any decision regarding the future use of these properties, if these sites are declared surplus and were disposed of for redevelopment, the City’s current general plan and zoning regulations would allow, by right, 35 dwelling units of approximately 1,100 square feet at the Ralph Hawley Site, 43 dwelling units of approximately 1,100 square feet at the Anna Yates Site, and 24 dwelling units of approximately 900 square feet and 3,120 square feet of commercial space at the Recreation Center Site. Assuming an average value of $300,000 per dwelling unit, the total estimated value of the 102 dwelling units is $30,600,000 which translates to approximately $306,000 in annual property taxes to be shared by the taxing entities from property that will certainly remain tax exempt if the ECCL Project does not go forward

The full PDF file from City hall can be accessed HERE.

YES On F

YES On Measure F

Opinion
Measure F asks voters if they want to eliminate the City Attorney position here in Emeryville and instead sub-contract out our legal services to outside law firms.  It is common for a city the size of Emeryville to do this in the Bay Area.

Council member opponents of Measure F seem to be basing their objections on the fact that the Measure was authored by their colleague, council member Ken Bukowski and they say he has a personal beef with our City Attorney, Mike Biddle.  It's just retribution against Mr Biddle by a vindictive Ken Bukowski, they say.  Another argument seems just as likely; the city bureaucracy is trying to protect one of its own with their fight against Measure F.

The problem with the opponent's argument is Mr Bukowski's motives for bringing the Measure are really not material to voter's interests. Voters want effective and frugal government and they don't really care about the infighting among the council members.   Charges of Mr Bukowski's impure motives don't answer to the fact that Emeryville pays way too much for our legal service and Mr Biddle's work here has been sub-par on occasion.  Voters should remember Mr Biddle's role in the wrongful termination lawsuit brought by former city employee Leslie Pollard.  Mike Biddle was the man in charge when the city lost that $4.6 million lawsuit.  Further, voters would be well advised to consider Mr Bukowski's well documented accounting that Mr Biddle has been a self-appointed and unelected change agent at City Hall, engaging in lawmaking that circumscribes the auspices of the elected city council.

But Mr Bukowski, his colleagues, their childish infighting, or even Mr Biddle himself really isn't what Measure J is about. It's about Emeryville residents getting the most effective and responsive government for their money, all the hoopla aside. Voters headed to the polls Tuesday should keep in mind the absudity of what the Measure F opponents are alleging:  They're saying that if we were to eliminate the City Attorney position, it would not save money but actually end up costing Emeryville MORE money, 71% more they've figured.  We've got to ask them how does this comport with the recent survey of California cities, reported in the Emeryville Voters Guide, that incontrovertibly found cities, large and small, that outsource their legal services enjoyed substantial savings over those that maintained in-house legal council?  How is it that only Emeryville, of all those cities, would lose money?  They've not answered this question.

The city council opponents of Measure F are fond of telling us that they're the ones who should decide about Mr Biddle's employment contract, not the rabble.  But we've got to ask them, what are they waiting for?  We think this is simply a case of bureaucratic inertia and its well documented self survival mechanism at play here.  Perhaps the esteemed council members need a nudge from the electorate.

City Attorney Ballot Will Be Challenged After The Vote

Attempt To Deep Six Voters Will:

Councilman Bukowski Charges City Attorney With Conflict Of Interest

November Ballot May Not Have Effect

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

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

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

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

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

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

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

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

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

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

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

City Attorney Ballot Measure Signature Drive Finishes

City Attorney Petition Drive Crosses 551 Signature Threshold, 

Dirty Tricks Alleged

Council member Ken Bukowski reports to the Tattler that the petition to abolish the city attorney as a paid staff member, circulating around the city for the last several weeks, has surpassed 551 signatures; enough to place the measure before Emeryville voters in November despite allegations of signature suppressing dirty tricks .  If the petition is certified by the County Registrar of Voters, citizens will be able to decide for themselves if the city of Emeryville should subcontract out its legal services as most cities our size do or to continue to retain the paid city attorney position and its staff.

Mr Bukowski told the Tattler that the petition drive, a grassroots effort conducted by many concerned Emeryville residents, has netted 773 signatures total and of that amount 202 are probably invalid due to errors he detected, leaving 571 valid and acceptable signatures for the County.  The County has indicated that a minimum of 551 valid signatures need to be verified to place the measure before voters in November.

  

Dirty Tricks

Mr Bukowski told the Tattler that two Emeryville resident signature solicitors, who might have had a change of heart about the petition drive midway through their signature gathering efforts, failed to submit all their collected signatures, a prosecutable crime he says.  Many signatures may have been discarded by the two he says.
Mr Bukowski said he will be talking to the District Attorney's office about this breach of public trust by the two unnamed citizens, with the intent of filing a complaint.

Petitions for ballot initiatives must have the proper number of signatures and the signers must accurately and legibly provide their printed names as it appears on their voter registration card on file.  In addition, the proper address as it appears on the voter registration card must also be entered.  Any mistake invalidates a signature.

Although the city attorney ballot initiative has been taken up by many Emeryville citizens, it's been associated most strongly with council member Bukowski as he was the progenitor and its most vocal supporter.   

City Attorney: Councilman Bukowski's Letter To Emeryville Residents

Letter To The People Of Emeryville From Councilman Ken Bukowski

Council member Ken Bukowski is soliciting the following letter to the people of Emeryville, explaining his view of the November ballot initiative that would replace the existing city attorney with subcontracted attorneys on an "as needed" basis as most towns our size do.  Mr Bukowski notes that in addition to cost saving, our town would be better served legally by the new proposal. Councilman Bukowski is actively seeking out residents around town and he is disseminating this letter before asking them to sign a petition to place the issue on the ballot. There is a summation at the bottom of this letter outlining the eight reasons for the petition drive.   

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November, 2011 Election
paid for by committee for city attorney measure    
by  Ken Bukowski

Emeryville  City  Attorney

Contract  Initiative  Measure

On April 26, 2011, a Notice of Intent to Circulate a petition to qualify a ballot measure known as the Emeryville City Attorney Contract Initiative Measure was filed with the City Clerk.

Your signature on this Ballot Petition will allow Emeryville Voters the opportunity to decide how the services of the City Attorney's office are provided in the upcoming November 2011 Election   Many years of unsuccessful attempts to reform the City Attorney's office has created the need to take the issue to the voters.

Many smaller cities have discovered the advantage of using sophisticated municipal law firms to handle legal matters Such law firms have more than 100 attorneys on Staff, with an expert in every field of municipal law. The collective resources of numerous cites make it possible to achieve lower legal costs, and at the same time, provide the best possible legal services available.

The Emeryville City Attorney hires outside legal counsel for every case. He does not do any legal work.
There are no specific tasks assigned to him, individually.  He assumes the role as the city's "Legal Agent."

Once an outside attorney is chosen for a case, our Legal Agent, obtains legal advice and develops a determined  strategy to handle the matter. Once the strategy is developed, he takes it to the City Council for "rubber stamp" approval. The Council does not participate in the discussion to develop the strategy. We don't even  see who is handling the cases.

The City Council should have direct dialogue with the attorneys who represent us.  We deserve the opportunity to influence the strategy of how legal cases are handled. Our Legal Agent does it all for us. He hires the attorneys, provides the instructions, and he pays the bills. The only role of the Council is to authorize his determined strategy to go forward.

A Legal Agent Denies Council Members Direct Access to the Attorney(s) We Hire  
For newer members of the council the lack of objective legal advice, and no prior history, makes it impossible to challenge determined strategy. As the City Attorney for many years, he knows what's best for the City Council, and he is determined to make that happen. Other alternatives to handle legal issues are not considered or explored.

Our Legal Agent also hires an Assistant City Attorney who handles the daily legal needs of the City Staff. The Assistant City Attorney, also handles almost all the Staff assignments. The City Attorney is Paid $263,236 annually.


He is the Single  Largest Unnecessary  Expense  in  the  City
He receives $8,044 annually in sick leave, which can be cashed out at 100%. He gets  (5) weeks paid vacation, and (2) weeks of paid administrative leave. In addition Council has agreed to pay him (9) month's severance pay. On May 3rd, when his contract was just ratified, he actually asked for another NINE month's severance pay, but the Council turned it down. The uncertain outcome of the ballot measure was the reason for the request. However, Nora Davis could not get the majority to give it to him ($197,427,00]

The City Attorney should not work directly for the City Council as a Staff employee.  The City Attorney should work under the City  Manager. We don't need a separate city department functioning under a separate leader. All city departments should have only one set of priorities. The City Manager should control the use of resources for every city department, including expenditures for legal services. The City Attorney should not have unfettered authority hire outside counsel, or unilaterally decide how much we will spend on every case. Legal  Expenses are very costly, and must be better controlled.

Five separate individuals cannot properly manage a city employee on a day-to-day basis. The City Council refuses to require hourly accounting of time spent. (common in the field of law) The potential negative impact of such a requirement may be too revealing. We pay this individual more than a Quarter-Million Dollars each year, and there is no ability to discover how he spends his time...?
The politics associated with the operation and cost of the City Attorney's Office is the reason why controversy exists. Imagine the frustration of only being able to hear the opinion of a Legal Agent on every single matter. ?  Efforts to bring accountability result in immediate character assassination attacks by Nora Davis.

If the City Council contracts for legal services with a large municipal law firm, it removes the ability for personal relationships with Council Members. Evaluation of legal services would become performance based. A career City Attorney is unnecessary, and more costly over time, earning more money and benefits with less productivity and more determination to have it his way. He knows what's best for us.

The City Attorney May Have Violated State Laws on Conflict of Interest
Government Code Section 87200 includes "City Attorney's" within  the definition of a "public official" who must comply with state laws governing conflict of interest.

Government Code Section 87100 provides,  "No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.
Section 87105. (a) A public official who holds an office specified in Section 87200 who has a financial interest in a decision within the meaning of Section 87100 shall, upon identifying a conflict of interest, or a potential conflict of interest, and immediately prior to the consideration of the matter, do all of the following:
 (1) Publicly identify the financial interest that gives rise to the conflict of interest, or potential conflict of interest, in detail, sufficient to be understood by the public.
(2) Recuse himself or herself from discussing, and voting, on the matter, or otherwise acting in violation of Section 87100.
(3) Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters.


When the Notice of Intent to circulate the petition for this ballot measure was filed,  the City Attorney failed to comply with the provisions of the Government Code. Despite the obvious conflict, The City Attorney hired (with city funds) Manuela Albuquerque,  former Berkeley City Attorney, a long time friend, to investigate the validity of the proposed measure. Ms. Albuquerque promptly responded with a legal opinion "the measure is outside the scope of the initiative power of the electorate."  The Opinion was used as the basis of a written email request (below)  to withdraw the proposed ballot measure.

Dear Mr. Bukowski:
"Attached please find a cover letter and an opinion of outside counsel regarding the Emeryville Contract City Attorney Initiative Measure. As you will read for yourself, the opinion concludes that the Measure is outside the scope of the initiative power. Accordingly, I am requesting that you withdraw the Measure and provide me your decision no later than 5:00 p.m. on Tuesday, May 3, 2011. If you decide not to withdraw the Measure, then next Tuesday night as part of City Council Agenda item VIII.K., I will ask the City Council to authorize me to file a declaratory relief action to obtain a judicial declaration relieving me of my duty to prepare the ballot title and summary for the Measure. I ask that you give careful consideration of the opinion and withdraw the Measure so that the City can avoid the time, cost and expense of unnecessary and avoidable litigation."
Sincerely yours, Michael G. Biddle, City Attorney, City of Emeryville

Below is the response-
Mr. Biddle:  Thanks for your response.  You apparently think it is OK for you to hire outside counsel to have the ballot  measure declared to be invalid. I am not convinced the measure is invalid. My understanding is the test of validity doesn't happen unless it is approved by the voters....?  I don't believe the court is going to agree that a title and summary not be provided, even if the measure is invalid...
I don't think it is ethical, or proper, for you to handle any aspect of this ballot measure, since it affects you personally. If the court does not agree with you, and the measure goes forward, you have used city funds to provide an argument against approval of the measure. To me this is an act of gross misconduct.

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On May 3rd the City Attorney made a full (20) minute presentation to the Council, using Ms. Albuquqrque's legal opinion, to convince the City Council the ballot measure is illegal and should not be allowed go forward.

It became necessary for me to hire an attorney (Stuart Flashman) at my own expense, to provide another legal opinion to help overcome the City Attorney's determined effort to stop the proposed measure from going forward.. However, after Mr. Flashman addressed the City Council, The City Attorney's effort
was unsuccessful  Below is a partial transcript of  Mr. Flashman's comments made to the City Council, and the closing remarks of the City Council meeting on  May 3, 2011.

 Flashman said, "the courts really do not like pre-election challenges to ballot measures, because they say, hey, we put this in the constitution that people have a right to put something on the Ballot."  "We trust the people.., If the people want to put something on the ballot, let's see if they vote for it. If they do vote for it and it turns out it's illegal we can knock it off later, but why don't we trust the people, rather than having the court step in and take it off the ballot, or not let it get to the ballot..?"
"is this really a good use of taxpayer resources to try and file an action to get it knocked off, just to save the City Attorney the trouble of preparing a Ballot title and summary. To my mind that is not a good bargain"
"The other thing I have to say is I'm a little puzzled, and concerned, that the City Attorney is presenting this, and the City Attorney is involved in this, given that this Ballot Measure specifically involves the City Attorney. It seems like there's a conflict of interest there. if I was the City Attorney I would be stepping aside."

Partial transcript of city council meeting on May 3, 2011
Nora Davis    |   Mr. Biddle, it looks like we are going to proceed ahead.. And how will we... who's going to be handling this...?
Michael Biddle    |    Well, I could have Manuela Albuquerque.... At this point there is no..... in the statute, no point in time where it specifically calls out that the City Attorney should not be involved. It's when you are preparing the impartial analysis. But the preparation of the title and summary, there's no restriction, but I think I'm going to have Manuela prepare it for us.
Nora Davis    |    I, for one, think we need to get some distance here, because of the allegations that have been made here about conflict of interest.
Michael Biddle    |    That's why I had Ms. Albuquerque look into the Measure.<<
Nora Davis    |    I understand that, but as we go down this path, let's have an outside attorney handling this particular matter.
Michael Biddle    |   I certainly will.

However, ( as stated above) Mr. Biddle directed Albuquerque to prepare the Title & Summary for the ballot measure. Can it be a surprise the result is aimed to confuse & discourage voter support. It says, "the current city attorney, and two individuals within the City Attorney's Office are employees of MESA, and not of the City of Emeryville.
Are we to believe the Emeryville City Attorney is not an employee of the City..?  Emeryville taxpayer money is used to pay his wages & generous benefits...?  Mr. Biddle has a contract with the City, not MESA. His benefits are tied to what is provided to other city employees.
Emeryville taxpayers are paying him..MESA was created as a tool for City Employees, including Mr. Biddle, to avoid paying social security taxes.
It seems the title & summary was prepared with false & misleading information. However, If the title and summary was challenged, the time necessary to resolve the issue would mean the measure could not qualify in time for the November election.

A Summation
This ballot measure will provide Emeryville with the same opportunity as many other small cities who contract out legal services with large law firms who specialize in municipal law.
The collective economic power of numerous cities contracting with large municipal law firms creates a cost savings. One individual city, acting on its own, hiring different law firms, cannot achieve the same level of benefit. Such law firms have over 100 attorney's on staff to handle every aspect of a city's complex legal needs.
Approval of the ballot measure will:
[1]  Save money on the cost of legal services.
[2]  Establish hourly reporting for the high cost of all legal services.
[3]   Establish the preparation of an estimated budget for every case.
[4]  Establish direct communication between the City Council and the attorneys who represent the City.
[5]  Remove the politics from the City Attorney's Office to prevent personal relationships with Council Members (the reason why supportive members of the City Council are willing to pay him so much money).
[6]  Provide City Manager oversight over the operation and control of expenditures by the City Attorney. This insures every City Department has the same priorities. The City Manager should participate in the choice and evaluation of legal services provided to the City.
[7] Eliminate the necessity to pay the substantial cost of city employee benefits in the City Attorney's Office.
[8]  Eliminate the personal involvement, and personal opinion, of the City Attorney with the handling of personnel matters in the City.

THE VOTERS NEED TO DECIDE 
THIS IMPORTANT ISSUE