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Sunday, September 25, 2016

Election 2016 Candidates Questionnaire: John Bauters

Housing Affordability: 
John Bauters

The Tattler presents the 2016 election candidates questionnaire.  Candidates for elected office will answer questions broken down into topical sections that effect Emeryville residents. Responses will be released section by section rotating through all the responding candidates representing the City Council and School Board hopefuls.  
The order of presentation was chosen randomly. Regular Tattler stories will be interspersed in the 2016 election questionnaire.  Readers wishing to peruse all the answers by an individual may use the search bar function by entering ”Election 2016 Candidates Questionnaire” with the name of the candidate and all of that candidate’s sections will be presented. Alternatively just typing in the name of the candidate will also work. 
There are six candidates running for three seats and all answered our questionnaire save candidate for City Council Brynnda Collins.  

Today, candidate for City Council John Bauters, who answers questions on affordable housing:


John Bauters
Bio:

John Bauters is a member of the Emeryville Planning Commission, Housing Committee and chair of the Measure K Parcel Tax Oversight Committee at Emery Unified. He is also a member of the Park Avenue Resident's Committee that recently negotiated a community benefits agreement with Lennar Corp, the Sherwin Williams developer. John works as policy director at a nonprofit that advocates for increased state funding to community-based programs that provide mental health care, addiction treatment and trauma recovery services. He lives in the Park Avenue District with his partner Aaron and their dog, King.

Bauters for Emeryville City Council
4260 Halleck Street
Emeryville, CA 94608
(510) 693-7474
FPPC #1380397
For A Stronger Community


Section 1  Housing Affordability
With each passing year, Emeryville becomes less affordable, regardless of the epic residential building spree over the last 20 years here.  Emeryville has never built housing at a pace even close to what we have done recently.  And yet, affordable housing remains Emeryville’s most intractable problem most people agree.

Tattler: Emeryville’s affordability rate right now is approximately 11% city-wide according to City Hall using their metrics.  We had more than 30 years of the Emeryville Redevelopment Agency (RDA) who’s primary function was providing affordable housing and 11% is the sum total we could muster with all the largess that agency could bring to bear.  How do you see us raising the 11% average appreciably in the post Redevelopment Agency era?
John Bauters: Several strategies exist for raising the percentage of affordable homes in Emeryville. Our development bonus point system was amended to require that any construction over 10 units include not less than 12% affordability in most cases - a good start. The percentage of units that must be affordable increases as the number of bonus points needed by the developer to get project approval increases. Personally, I believe the starting point should be higher than the current level. The city should also make additional properties that it owns into affordable housing opportunities, much like it has done with the property at 3706 San Pablo. Finally, the city needs to protect the existing below market rate (BMR) ownership homes it acquired with redevelopment funds. BMR units in foreclosure are at risk of losing their affordability covenants and the city must step in under its right of first refusal privilege to acquire and resell these homes, keeping them affordable for the future. This ensures we don't actually lose any ground on our affordability. The most recent capital improvement plan the city approved included a recommendation I made with the support of my fellow members of the city's Housing Committee, creating a self-financing revolving fund the city can use to intervene and prevent loss of these units during the foreclosure process.


Tattler:  Emeryville, formerly an industrial wasteland with lots of abandoned warehouses and factories in the 1980’s has been almost completely rebuilt now with lots of housing and shopping centers.  Seeing so little fallow land left and the housing stock that we have is mostly less than 25 years old, where will we build the affordable housing that we need?
John Bauters:  The opportunity to build affordable housing in the city is limited to the extent that formerly available sites/land have already been redeveloped. I support several goals going forward: (1) Prioritizing city-owned properties in residential and mixed-use zones for future affordable housing development; (2) Providing additional procedural protections to safeguard our existing affordable ownership housing stock from losing its affordability; and (3) Regularly evaluating the impact fees and bonus point percentages required of market rate developers to ensure we maximize affordability as a community benefit in future development.


Tattler:  Urban density is generally recognized as a net positive thing.  However, increasing density also comes with its own problems, overcrowding of parks and traffic being among them.  Emeryville right now has more than 200% of recommended market rate housing according to the Association of Bay Area Governments (ABAG).  How do you suggest we increase affordability without increasing our existing 200% of market rate housing more?  Is ABAG wrong?
John Bauters:  The only economically plausible way to increase affordability without increasing market rate housing is to build 100% affordable housing. The other way the city could increase affordability would be to purchase existing market-rate housing and sell it back out through one of our below market rate ownership programs. When we had RDA affordable housing funds and the housing market was cheaper this was a viable option. Given the current fair market value of housing and the loss of RDA dollars, this is no longer a financially feasible option and so the only economically viable solution to your question would require 100% affordable development.


Tattler:  'Supply and demand' is central to classical economics as everyone knows.  Here in Emeryville, developers and some others are using this argument to forward a position that the problem in Emeryville is that we haven't been building enough housing and that's why its so expensive here.  Yet at 200% ABAG recommendations for market rate housing (and going higher), the more we build, the higher the housing costs go.  Neighboring cities have built less than 100% of ABAG recommendations.  Does Emeryville have to be a sacrifice zone for the greater region to satiate the supply and demand axiom posited by some?
John Bauters:  While it might appear to be a simple principle, the "supply and demand" approach to development ignores the gravity of our current affordability crisis. The independent California Budget and Policy Center estimates that California has a supply deficit of over 1 million units of affordable housing. The reality is that affordability will not "trickle down" to the lowest-income households until supply fully catches up with demand under the economic principles of supply and demand - something that would not happen for decades, even with massive investment. In the interim, what we experience is displacement, where increased rents push lower and fixed-income residents, often seniors and working families, out of their homes. Market rate developers will commonly argue in favor of the "supply and demand" approach to development for another reason - because all housing built after 1995 is exempt from rent control under state law. Allowing for a boon of market rate housing development means less housing that is subject to either affordability or rent stabilization protections, creating a situation that allows for maximum rents without protections for renters. In order to preserve households of all incomes who live and work here we must build housing for all income levels as we go. This means a more strategic approach to development that balances market principles with the affordability needs of people from all levels of the economic spectrum.

Saturday, September 24, 2016

Corporate Philanthropy In Emeryville: A Great Hill of Beans

Emeryville's Businesses Care About Money,
Not Our Schools

What Kind of Businesses Does Emeryville Attract?
Greedy Ones

News Analysis
Emeryville is well known throughout the Bay Area as being foremost a business friendly town, a reputation that's been well earned over the years.  But civic boosters here, concerned about the optics of that lopsided message, have often attempted to draw a distinction between how well we've been able to leverage our businesses for community benefits received versus whatever virtues that may be garnered simply providing a good location for a host of corporate headquarters.  In this way, much has been made of the philanthropic generosity of Emeryville's business community, especially where monetary donations to our local public schools are concerned.
Sad:
Last year once again, Pixar gave nothing to

the schools in Emeryville, their hometown.
$1.2 billion 2015 box office receipts = zero
for Emeryville's schools.  

Here at the Tattler, we have shown how this meme is not represented by reality and is more fiction postulated by the businesses themselves than fact.  Readers may remember our 2014 story about Pixar's miserly lack of corporate donations to our schools after a very public campaign of claims to the contrary in the lead up to and running concomitant with their major corporate campus expansion, begun in 2004.
In fact, that's been a repeating theme here in Emeryville; business will conspicuously donate to the schools when there is public exposure, especially when they are engaging in large and consequential building projects and need public support but when the need for that support ebbs, the philanthropy likewise ebbs albeit quietly.

A quick look at Emeryville top ten largest businesses is revealing.  Based on gross receipts, the metric the City uses for taxing purposes, the combined top 10 businesses monetary donations to Emeryville's schools last year amounted to zero.  The only Emeryville corporation that gave any money at all to our schools was Wareham Development, a business not in the top ten.  Wareham it should be noted, is exposed and in the public eye while they prepare to build the contentious 'Transit Center' on Horton Street.  Tellingly, Wareham last year gave the Emery School District $25,000 while they sought permission to build their project; a gift very much needed and appreciated by our schools.

The List of  Corporate Shame- What's in their eye is not about what they provide to the community, it's about what they extract from the community.  The following Emeryville corporations, our ten largest and most preeminent businesses, gave no money at all to Emeryville schools last year:
  1. Disney/Pixar, 1200 Park Avenue:   Zip to Emeryville Schools
  2. Berkeley Research, 2200 Powell Street:   Nil to Emeryville Schools
  3. Ikea, 4400 Shellmound Street:    Nada to Emeryville Schools
  4. Tubemogul, 1250 53rd Street:    Zilch to Emeryville Schools
  5. Home Depot, 3838 Hollis Street:   Scratch to Emeryville Schools
  6.  Plum Inc, 1485 Park Avenue:    Naught to Emeryville Schools
  7.  Griffols Diagnostics, 4510 Horton Street:  Nix to Emeryville Schools
  8. Gracenote Inc,  2000 Powell Street,   Shutout to Emeryville Schools
  9. Fantasy Junction, 1145 Park Avenue,  Nothing to Emeryville Schools
  10. Novartis Institute,  5300 Chiron Way,  Ought to Emeryville Schools
Don't Listen to the Hype
Look at the Hill

Here's how much Emeryville's business community 

cares about the children in our community.

Friday, September 23, 2016

Election 2016 Candidates Questionnaire: Ally Medina

Housing Affordability: 
Ally Medina

The Tattler presents the 2016 election candidates questionnaire.  Candidates for elected office will answer questions broken down into topical sections that effect Emeryville residents. Responses will be released section by section rotating through all the responding candidates representing the City Council and School Board hopefuls.  
The order of presentation was chosen randomly. Regular Tattler stories will be interspersed in the 2016 election questionnaire.  Readers wishing to peruse all the answers by an individual may use the search bar function by entering ”Election 2016 Candidates Questionnaire” with the name of the candidate and all of that candidate’s sections will be presented. Alternatively just typing in the name of the candidate will also work. 
There are six candidates running for three seats and all answered our questionnaire save candidate for City Council Brynnda Collins.  

Today candidate for City Council Ally Medina who answers questions on affordable housing:


Ally Medina
Bio:
I have been working on progressive organizing and advocacy campaigns for nearly 10 years. I believe my community engagement skills would be an asset on the city council. I'd like to use my background in voter outreach to engage our city on issues concerning residents- specifically focusing on affordability, availability of parks and open space, and safe transit options



Section 1 Housing Affordability
With each passing year, Emeryville becomes less affordable, regardless of the epic residential building spree over the last 20 years here. Emeryville has never built housing at a pace even close to what we have done recently. And yet, affordable housing remains Emeryville’s most intractable problem most people agree.
Tattler:  Emeryville’s affordability rate right now is approximately 11% city-wide according to City Hall using their metrics. We had more than 30 years of the Emeryville Redevelopment Agency (RDA) who’s primary function was providing affordable housing and 11% is the sum total we could muster with all the largess that agency could bring to bear. How do you see us raising the 11% average appreciably in the post Redevelopment Agency era?
Ally Medina:  Emeryville is almost completely built out, it’s a very small city that has undergone a period of rapid growth. If elected, I would negotiate for higher percentages of affordable housing recognizing that it is extremely desirable to developers to make sure we get the most out of new housing. However, I don’t think we will build enough housing stock to appreciable raise that average in a short period of time. As a city, we need to focus on maximizing the community benefit of the space we do have.


Tattler:  Emeryville, formerly an industrial wasteland with lots of abandoned warehouses and factories in the 1980’s has been almost completely rebuilt now with lots of housing and shopping centers. Seeing so little fallow land left and the housing stock that we have is mostly less than 25 years old, where will we build the affordable housing that we need?
Ally Medina:  As I noted in my previous answer, there is very little land left. I certainly don’t believe we need more stock retail and vast parking lots. Any new development should be heavily geared towards parks and local business.


Tattler:  Urban density is generally recognized as a net positive thing. However, increasing density also comes with its own problems, overcrowding of parks and traffic being among them. Emeryville right now has more than 200% of recommended market rate housing according to the Association of Bay Area Governments (ABAG). How do you suggest we increase affordability without increasing our existing 200% of market rate housing more? Is ABAG wrong?
Ally Medina:  Increasing density can increase traffic issues, but it also allows the possibility for innovation in public transit. With denser neighborhoods we can have better, faster public transit and a denser tax base for bike/pedestrian infrastructure projects. Emeryville has been a leader in building market rate housing, but should negotiate for higher levels of affordable housing in any new developments as well as continuing to address income inequality that makes it difficult for many Emeryville workers to live near their employment. Affordability is a factor of both wages and the cost of living, and policy should address both sides of that.


Tattler:  'Supply and demand' is central to classical economics as everyone knows. Here in Emeryville, developers and some others are using this argument to forward a position that the problem in Emeryville is that we haven't been building enough housing and that's why its so expensive here. Yet at 200% ABAG recommendations for market rate housing (and going higher), the more we build, the higher the housing costs go. Neighboring cities have built less than 100% of  ABAG recommendations. Does Emeryville have to be a sacrifice zone for the greater region to satiate the supply and demand axiom posited by some?

Ally Medina:  Outpaced demand and rapid growth is a regional issue, Emeryville should not be razed and turned into high rises. I believe to mitigate the displacement that has been rampant in the region, Emeryville must enact stronger tenant protections immediately, as well as incentivize home ownership to encourage more permanent residents.

Tuesday, September 20, 2016

Council Says YES to EIR That Says NO to Horton Street Bike Boulevard

City Council Uninterested in Traffic Effects From Sherwin Williams Project Presuming Bike Boulevard in Place

Certified EIR Says Apartments More Important Than Bike Boulevard

News Analysis
Now there’s no other way to spin it; regardless of their pro-bike rhetoric, the Emeryville City Council doesn’t want to have a bike boulevard on Horton Street.  Bikes dangerously navigating a traffic clogged street with more than 3000 cars and trucks per day is OK they told us but a bike boulevard, a street safe for biking with less than 3000 cars, is not something they’re interested in, not if it means scaling back the Sherwin Williams project.  

At the September 6th council meeting the Emeryville City Council put the final nail in the coffin for the Horton Street Bike Boulevard when they approved the Environmental Impact Report (EIR) for the 540 apartment Sherwin Williams project, a project who’s scale is incompatible with having a bike boulevard on Horton Street.  Says who?  The EIR itself says it: the loss of the bike boulevard is going to be a “significant and unmitigated negative environmental impact” when the whole Sherwin Williams project is approved in October. In deference to the EIR, the City Council expressed their desire ultimately to sign a ‘Declaration of Overriding Considerations’, a CEQA document that tells the State of California the Council is aware of the loss of the Horton Street Bike Boulevard but that they think the Sherwin Williams apartment project is so good and so necessary that losing a bike boulevard is well worth that cost.  Adding more housing is more important than the Horton Street Bike Boulevard, Emeryville's most important north/south bike corridor says the Council.

Other than the years of delay they have proffered, how do we know the City Council isn’t interested in delivering a bike boulevard for Horton Street?  They told us as much.  When they certified the EIR the Council said YES to its traffic study that doesn’t reveal what the effects the project would have on neighborhood traffic if there was a bike boulevard on Horton Street.  The traffic study approved by the City Council only shows what the effect on traffic there would be if there is NOT a bike boulevard on Horton Street.  The Council had a chance to re-do the traffic study so they could know how the project would have effected neighborhood traffic with the Horton Street Bike Boulevard intact but they said they weren’t interested in that on the 6th.  And so they certified the EIR as it was.  
That means the City Council is either willing to commit a California Environmental Quality Act (CEQA) violation by negligently passing a bad EIR or they have no interest in creating a bike boulevard for Horton Street as Emeryville’s General Plan mandates. A violation of CEQA mandates would expose the City to a lawsuit, something incidentally the Council expressed worry over at the September 6th meeting.  The choice revealed at the meeting is that instead they’re going to (continue to) violate our General Plan with its requirement to keep traffic below 3000 vehicle trips per day.
The 540 unit Sherwin Williams project 
is incompatible with having a 
bike boulevard on Horton Street 
says the EIR. 

The decision to certify the Sherwin Williams EIR finally puts to an end the years of speculation and delay on implementing Emeryville's Bike Plan dictates for Horton Street.  Developers have said they are loath to allow a bike boulevard there and the Council has always placated the developer’s desires, even now the new "progressive" majority.  Developers have wanted to load Horton Street up with traffic to maximize their profits for their projects the Council keeps approving.
  
Bicyclists first alerted the City Council to the safety problems with excess traffic on Horton Street in the late 1990’s when the Bicycle Advisory Committee for the City of Emeryville put the need for traffic calming on the street front and center in the first Bike Plan that the Council certified in 1998.  The Council never delivered on the traffic calming the first Bike Plan mandated.  Later when businesses complained about the bike lanes called for in the plan, lanes that took away parking spaces for cars in the Park Avenue area, the business community lobbied the Council and the new Bike Plan, certified in 2012, took away the bike lanes but made Horton Street a bike boulevard instead.  Bike boulevards are supposed to be ‘bike preferred but cars allowed’ corridors.  
Businesses liked the fact that the new Plan retained the parking spaces for cars but developers soon started calling foul because of the limit on the number of cars the Plan requires for bike boulevards.  The Council responded to the developer’s complaints by ignoring the traffic calming mandates for Horton Street.  


The City of Emeryville never even tried the Horton Street Bike Boulevard idea.  The business and developer community was mollified instead.  The street has always been a car centric thoroughfare with more than 3000 vehicle trips per day.  The first Bike Plan failed to deliver traffic calming and the second Bike Plan failed to deliver less than 3000 vehicle trips per day.  What Horton Street has been and continues to be is just a regular street with funny purple signs and stencils on the asphalt.  It has never in 18 years complied with our General Plan.  

Monday, September 19, 2016

League of Women Voters Candidates Forum


The League of Woman Voters Berkeley, Albany, Emeryville presents:

Emeryville Candidates Forum
for the

EMERYVILLE MUNICIPLE ELECTIONS

LWVBAE Forum for Emeryville City Council and Board of Education
Wednesday September 21, 7-9pm

at Emeryville City Council Chambers, 1333 Park Ave, Emeryville

  • City Council (3 positions) – John J. Bauters, Brynnda Collins, Louise Engel, Ally Medina, Christian Patz, John Van Geffen
  • Board of Education (2 positions) – Cruz J. Vargas, Barbara Inch, Ken Bukowski

Monday, September 12, 2016

RULE Endorses Medina, Patz and Bauters for City Council

The Emeryville citizen activist group Residents United for a Livable Emeryville (RULE) has announced their endorsement of John Bauters, Christian Patz and Ally Medina for Emeryville City Council.
Christian Patz
There are six candidates running for three seats in an unprecedented open City Council election on November 7th.  The three picks will likely receive a big electoral boost by the nod owing to RULE's high rate of success in picking election winners.  Last election RULE accurately picked both City Council candidates as well as all three School Board candidates that featured a RULE challenger pushing out an incumbent on the School Board, a rare event.  Additionally RULE endorsed the dark horse Tony Thurmond for 15th Assembly District in a never before done outside of Emeryville endorsement by the group.  Mr Thurmond upset favorite Elizabeth Echols in the 2014 race.  RULE has selected winners in every other Emeryville election save one and the RULE candidates have come in first place each time arguably making RULE a venerable Emeryville institution at this point.
John Bauters

Ally Medina

Sunday, September 4, 2016

Sherwin Williams Project: Emeryville's City Staff Prepares a Bogus Environmental Document

An EIR is Supposed to Tell Decision Makers About Negative Environmental Impacts 


What Will the Sherwin Williams Traffic be Like?
Nobody Knows

Opinion/News Analysis
EIR's Are Supposed to Measure
Will the City Council demand
measurements from the
Sherwin Williams EIR?
Emeryville’s City staff has prepared the environmental document that facilitates the last large development project for our town, the Sherwin Williams Project (SWP), and the City Council decides Tuesday night whether to certify the Environmental Impact Report as a properly prepared CEQA document.  
But hold on; there’s a huge problem.  The City Council cannot certify the EIR for Sherwin Williams because the EIR fails at it’s most elemental CEQA charge; to inform the decision makers about how the proposal will effect traffic in our town.  
In fact the EIR contains no useful information about traffic at all.  That’s because the traffic study within the EIR was written with the assumption the City Council will amend our General Plan to get rid of the Horton Street Bike Boulevard as it calculated the traffic effects the SWP would have on the neighborhood.  It's not up to the staff to decide the General Plan will be amended.  

What if the Council decided they like bike boulevards?  What if they want to keep the Horton Street Bike Boulevard as the General Plan says it should be?  As they have said many times they wished to do?  Well then less traffic would be using Horton Street and that excess traffic would move to other streets.  And that would change the ‘level of service’ on those other streets to a lower level.  In that case, the streets in the neighborhood would be more negatively impacted by the Sherwin Williams Project than the current EIR shows. 

The City Council and the people of Emeryville are in the dark about how the Sherwin Williams traffic will impact our neighborhoods.

The City Council needs to know this to make an informed choice about the SWP.  Is it too impactful to traffic in the neighborhood?  Is it acceptable? The Council needs to know this before they can decide on this project.  Says who?  Says the State of California: the central function of the California Environmental Quality Act (CEQA) is exactly this….to properly inform the decision makers about development proposals.  
The document the staff will be pushing Tuesday night doesn’t do that.  It fails at the sole task it’s supposed to perform.  The City Council needs to throw it back.  They need to tell the staff to prepare a  new EIR with traffic numbers that show the effect on the neighborhoods with the assumption we’re going to keep the Horton Street Bike Boulevard, that's all.


More Traffic on our Bike Boulevards Means
More Ghost Bikes for Emeryville

Will the City Council make the right decision
on Tuesday night? Will they keep open the
option to have a bike boulevard for Horton Street?
The citizen activist group Residents United for a Livable Emeryville (RULE) wrote a letter to the staff about this subject.  Inexplicably, the response to RULE’s letter was the staff didn’t understand the question.  That seems like a canard.  They're paid to know about this. 
We understand it: this is an end run on what’s supposed to be a transparent process.  The staff is trying to show a Sherwin Williams Project with less effect on traffic to make it more palatable to the public, to make it an easier sell for the Council. 

We have a right to know what the effect on traffic the Sherwin Williams Project will have in our town assuming we keep our bike boulevards. We need to know how this project will effect the real world. The world that contains the Emeryville General Plan and bicycling as a safe possibility here.  If the City Council certifies this EIR as it is being offered up to them by the staff on Tuesday night, we’ll know they never had any intention on having a bike boulevard on Horton Street.  The developers for the Sherwin Williams Project don't want a bike boulevard on Horton Street.  Let’s see who’s back this City Council has.  Watch this space….

Wednesday, August 31, 2016

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

President Affeldt Calls Colleague Board Member Patz a "Criminal"

Board's Hands Were Tied Affeldt Says; 
No Way to Keep Children Away From Danger


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

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

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

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

Ken-
I have since double-checked with a different attorney used by the district and he confirmed as did our counsel Wednesday night that my actions in refusing to let the board vote on an illegal motion was "absolutely correct" and saved the Board from committing a Brown Act violation.
The Brown Act trumps rules of parliamentary procedure on motions and seconds.  Two outside counsel have both confirmed that it would have been a clear violation of the Brown Act to take action to delay the opening of school without notice to the public and an opportunity for all to weigh in.  The Brown Act requires 24 hours of notice in nearly all "emergency situations".   Only in very rare circumstances, referred to in the Act as a "dire emergency" can a public agency take an action with only an hour's notice.  Those circumstances are defined in the Brown Act as "a crippling disaster, mass destruction, terrorist act or threatened terrorist activity". 

While there were important concerns raised by the 11 teachers and 2 parents who testified to the Board, none of them came anywhere near establishing that the ECCL site—which had been approved for occupancy by numerous inspectors and professional staff—was somehow a dire emergency warranting closure.
While you are correct that the Board votes to determine if a dire emergency exists, it is not a subjective test--that is, whatever the Board says goes--but an objective test which courts would judge against the dire emergency standard of a crippling disaster, mass destruction, terrorist act or threatened terrorist activity.  As the smooth and uneventful first two days of school evidenced, in fact, no such emergency, dire or otherwise, existed.  (Indeed, more than a few parents told me that they were surprised how good the condition of the school was given reports they saw on the Internet.)
What you have proposed, and what Board member Patz' motion sought was to disempower some 500 families in the district and the general public by denying them the notice and opportunity to weigh in on an important board action.  The Brown Act requires at least 24 hours notice for emergencies to prevent just the sort of precipitous action without notice that might have occurred here.  I am proud to have prevented the unlawful disempowerment of the rights of our school community. 

Further, I was reminded by my second conversation with counsel, that intentional violations of the Brown Act are a criminal offense.  It was clear from the meeting that Board member Patz exhibited the criminal intent to purposefully violate the Brown Act, opining cavalierly that the Board should be willing to violate Brown Act notice requirements because anyone who disagreed with closing school to Monday of this week would have no way to undo the action.  Mr. Patz persisted in his intentional disregard of the Brown Act even after being informed that our counsel had said we did not meet the dire emergency standard.  
Appropriate concerns were raised at last week's meeting and appropriate direction was given by the Board to staff to prepare the school for opening.  That was all the Board could legally do that night.  It would have violated the rights of the whole Emeryville community to have taken any action on Wednesday night--not to mention being hugely disruptive and disrespectful of hundreds of families with childcare responsibilities--to have canceled school at 11 p.m. the night before classes were slated to begin. 


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

Monday, August 29, 2016

Community Fallout Over School Board President's 'Dictatorial Power Grab'

Teachers, School Board Agree Board President John Affeldt Overstepped His Authority

Democracy Stalls

School Site Called 'Unsafe', Curriculum 'Not Ready'

The fallout continues to build in the community from a palace coup at the August 24th School Board meeting when Board President John Affeldt improperly stopped a vote of a majority of his colleagues on delaying the opening of the school due to safety concerns for the children because the new school site at the Center of 'Community' Life is still under construction.  The vote stoppage is a serious violation with serious ramifications teachers said after the contentious meeting and the law is clear that any duly seconded motion by the Board must be allowed a vote.  At least one teacher characterized what Mr Affeldt did Wednesday night as a "dictatorial power grab".

Emery School Board President John Affeldt
Wouldn't let the Board vote.
Earned the enmity of assembled teachers,
parents and the Board.
The meeting, held on the night before the scheduled first day of school, was temporarily adjourned by Mr Affeldt so he could place a phone call to the District's counsel to inquire about the legality over a vote to delay the opening of the school the Board wished to make.  Ten teachers and two parents testified that the school isn't safe for the children and the teachers also noted they hadn't received the curriculum from the District, nor textbooks.  The teachers were adamant that the opening be delayed for a few days at least.  A majority of School Board members agreed with the teachers in a straw vote.

Mr Affeldt however joined with School Superintendent John Rubio in insisting the school must open as planned, regardless of any stated safety concerns or lack of curriculum and that even if they agreed, it was "too late for that" anyway.  They posited the agenda item under consideration was an informational item and that any voting would constitute a Brown Act violation.  Board member Christian Patz noted the Brown Act provides for work arounds if an emergency is declared and that student safety constitutes an emergency.
Construction Zone Trip Hazard
The blue tape was added after a teacher broke
her leg. The tape cautions teachers, parents
and children about the two inch level change.  

Superintendent Rubio immediately sought to downplay teacher and parents concerns over the children's safety, calling the whole thing an "emergency created out of thin air".  Notably, a teacher broke her leg two days before in the construction site when she was attempting to prepare her classroom for the children on opening day.  Turner Construction, the contractor in charge, placed some blue tape over the trip hazard after two more teachers tripped.  Superintendent Rubio did acknowledge the teacher's broken leg and said the trip hazard would be fixed by Turner soon.

Former City Councilman and current School Board candidate Ken Bukowski Thursday noted the action by Mr Affeldt represented an overstepping of his authority.  Mr Bukowski forwarded the following letter to subscribers to his 'you tube' page where he provides video of School Board meetings and other important regional public policy meetings.                                                              

Here is a summation of candidate Bukowski's accounting of the meeting:
"It was a very contentious meeting.  The main discussion was the question of opening of school for today, August 25th.  Numerous teachers came to the Board and asked for the opening to be delayed because the project is not complete.  Teachers also claimed they did not have their curriculum to provide instruction.  There were many comments about items in the hallway.
A majority of the Board wanted to vote to delay the opening, but Board President John Affeldt did not agree.  He claimed a vote could not be taken, since the item on the agenda was only informational.  However Christian Patz said, the Board could declare there was an emergency, and thereby direct the Superintendent to delay the opening. 
The meeting was recessed to allow Affeldt to check with County Counsel.  When Affeldt returned, he claimed the counsel said, there was insufficient reason to claim an emergency existed.
The purpose for checking with the attorney was to see if a procedure for declaring an emergency was possible.  Generally, legal counsel tries to justify the wishes of a board majority, if feasible.  It must be clear Affeldt likely framed the question to obtain the desired result. 
The question of whether or not an emergency exists is a decision for the Board to determine.  The Board is responsible for its decision, not the attorney.  Affeldt, overstepped his authority, and would not allow the board to make a decision.  He failed to respect other board members by failing to call the question, despite numerous requests.
The testimony of several teachers and members of the public provided sufficient information to raise the question of safety, as well as saying they could not perform their professional duties.  It was clear there was no orientation.  I know it took me almost 20 minutes to find the board meeting. Certainly hundreds of kids on the site for the first time would have to be confused.
The Board president has no right to fail to call a vote, if there is a motion and a second. The Brown act says if it is an issue of health and safety the board can act. 
The Superintendent said, if the school opening is delayed he didn't want to be responsible for what could happen to the kids who could not attend school.  However, opening a brand new project, there is always a possibility there could be a problem.  For example, on opening day if the electricity went out, and the school didn't open, it would not be a huge surprise. 
The school district is never responsible for the conduct or behavior of students who are not in school, at any time.  However, if kids show up and sustain injuries at the school, especially if there are known problems, it could rise to the claim of negligence when you know a dangerous condition is pre-existing.
I was disappointed with the way it went.  It may have shattered the confidence of students and teachers, unnecessarily, just to make an opening date.  Anything done in haste, is usually not the way to go."

A video of the meeting can be viewed HERE.

Wednesday, August 24, 2016

Breaking News Story: School Board Considering Delaying School Opening Tomorrow

(9:00 pm ECCL Site)
After hearing dramatic testimony from ten teachers concerning primarily the safety of the children at the construction site of the Center of 'Community' Life for tomorrow's scheduled first day of school, the School Board is seeking legal counsel to consider an emergency delay of the opening of the school.

Teachers expressed concern that the site is unsafe owing to its unfinished condition and they complained the District had not even prepared the academic curriculum for the long planned start up.  Adding to the drama of the safety concerns was one teacher who testified in a leg cast after she broke her leg on an unsafe level change at the school site two days ago while attempting to prepare for the opening of the school.  At least two other teachers also tripped on the hazard it was reported.  Three Board members said the school should not open tomorrow.
Superintendent John Rubio told the Board he intends on opening the school regardless of the teacher concerns calling their pleas on behalf of the children's safety "An emergency created out of thin air".   As of 9 pm tonight, the question of opening the school tomorrow am is still up in the air.

Several hundred parents with their children are expected to descend on the site in about ten hours.

UPDATE- 10 PM
After taking advise from legal counsel, Superintendent John Rubio and School Board President John Affeldt  refused to call the question of a duly motioned and seconded motion to delay opening the school citing a possible Brown Act violation were such a vote to happen.  After losing an earlier straw vote (3-2) where the Superintendent and Board President made their views on opening the school regardless of the safety problems brought up by the teachers, the two said a vote would be illegal and they downplayed any safety problems with the construction site, teacher injuries notwithstanding.

In a moment of passion, Mr Rubio volunteered to walk the entire campus starting at 7 AM, clearing unsafe construction materials and debris.  Later he said it was too late to inform parents that the school opening would be delayed even if they could delay it.  Board member Patz invoked a provision within the Brown Act that allows the Board to take such an action after having declared an emergency situation, a finding Mr Affeldt was unimpressed with.  Most teachers left the room after it became clear their concerns weren't being listened to.