Mendocino County Today: Wednesday, Mar 25, 2015

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THURSDAY'S HEARING on the Old Coast Hotel conversion, set for Ten Mile Court, Fort Bragg, has been put on hold. Judge Brennan recused himself. We're trying to find out why Brennan ducked this one, but we would suppose it's because he'd rather not hear something this controversial. Mendo judges often avoid hot cases for no reason, or a conflict so removed as to be non-existent, on the off chance the controversy could hurt their re-elections. Since most of them run unopposed or are opposed by someone who can't afford to campaign county-wide, Mendocino County's nine (9) judges enjoy lifetime jobs, not that that lush assurance makes them any less timid.

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CITY COUNCIL’S VOTE ON HARE CREEK

by Malcolm Macdonald

On an evening that started with blue skies overhead, then clouded over to a rainy nightfall, the Fort Bragg City Council voted 4-0 to uphold the appeal of the city planning commission's January approval of a Mitigated Negative Declaration for the Hare Creek shopping center. In addition, the Fort Bragg City Council went along with the planning commission's denial of permits to Group II Real Estate to go forward with the aforesaid Hare Creek shopping center.

The vote might seem a simple victory for those opposed to a small shopping mall, highlighted by a Grocery Outlet, a stone's throw to the west of the intersection of Highways 1 and 20, but the City Council denied the permits without prejudice, leaving open the opportunity for developers to modify their proposed shopping center to meet the standards of the California Coastal Commission. In a nearly hour long discussion period, following an even lengthier public comment period, the four city council members (Councilman Scott Deitz recused himself because he owns property in the vicinity) all expressed a desire to see the shopping center project move forward. The owners of the property, the Patton family, have donated land to the city for playing fields as well as being the landowners primarily responsible for both the strip mall on South Franklin Street that contains the Department of Motor Vehicles (DMV) building as well as the Boatyard Shopping Center that sits more or less atop the Highways 1 and 20 intersection. Therein lies a crucial difference, the Boatyard Center is largely invisible to motorists as they approach Fort Bragg on either of those highways. The proposed Hare Creek Center would be almost directly in front of motorists as they make their final descent into Fort Bragg on Highway 20. From Highway 1 the shopping center might block a small portion of the view to the Pacific Ocean.

One could go on and on about those who spoke in favor of the shopping center and those opposed. It would be easy to say that those opposed shop at the more or less hidden Harvest Market in the Boatyard Center rather than old time Fort Braggers who prefer Safeway or Purity, but that's just as easy and false as saying the City Council resoundingly defeated the shopping center proposal. The council members appeared to agonize over what seemed a predestined decision. The councilmen clearly didn't want to offend the longstanding Patton family who, by basic zoning rights established thirty-four years ago, possess a commercial use property. On the other hand it's clear that a majority of citizens in Fort Bragg and especially those who shop, visit, and/or work in the city but live outside city limits are opposed to the project. The council members all seemed to be aware that they and the developers are caught between a rock and a hard Coastal Commission place. If you try to build it, the Coastal Commission seems hell bent on making sure no one will come, by denying this project. In recent communications with the city, the Coastal Commission expressed doubts about Fort Bragg's Planning Department's documentation supporting a mitigated negative declaration for the Hare Creek Center, the one part of the deal that the Planning Commission passed.

It's fairly obvious that the City's attorney made it clear in a prior closed session that the Mitigated Negative Declaration, based on a twenty year old Environmental Impact Report (EIR) would not stand up to Coastal Commission scrutiny. So, in essence, the entire public hearing at the March 23rd City Council meeting was a foregone conclusion. The best the City Council members could offer the Patton family was the chance to spend at least $50,000 more (realistically costs could prove much higher) in going through a brand new EIR with no guarantee that even that re-worked document would be Coastal Commission bullet proof.

Issues that must be responded to in the new EIR include mitigations minimizing grading of the nearby knoll, relocating one of the structures (Building “C” in current plans) to the west, incorporating a historic district type of design, providing for a multi-use trail, potentially adding a split level parking lot, no storing of excess materials on the site, and planting more trees between the project and Highway 1.

Asked on the way out if the developers would continue on with the costly process of a brand new EIR, Greg Patton answered, “I don't know.”

A final note for those who saw this issue/council vote as another clearly defined point of difference between newly elected City Council members Lindy Peters and Mike Cimolino and holdovers Mayor Dave Turner and Councilmen Doug Hammerstrom and Scott Deitz: The unanimous vote proves otherwise. The individual issues (like this one and the controversy over the Old Coast Hotel) are more complicated than simple labels can define. Those applying broad brushes need to re-think their color scheme.

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BIG SAVE FOR LIMA

On 03-20-15 at approximately 12:39 AM, Mendocino County Deputy Sheriff Zemanuel ‘Ze’ Lima was on routine patrol in the Fort Bragg area and overheard emergency medical and fire personnel, on another radio channel, being dispatched to a residence on Ocean View Drive, Fort Bragg. They were responding to a report of an unresponsive male adult, with cardiopulmonary resuscitation (CPR) being conducted by the caller.

Without being requested, Deputy Lima responded to provide any assistance that he could. He arrived within minutes, before emergency medical personnel, and found the victim’s wife struggling to provide CPR to the victim. Deputy Lima examined the victim and found that he was not breathing, did not have a pulse, and his eyes were fixed and dilated.

Deputy Lima acted quickly and began performing effective CPR on the victim, which he sustained for approximately five minutes until emergency medical personnel arrived. Deputy Lima assisted emergency medical personnel for approximately 20 additional minutes until the victim had a spontaneous return of circulation. The victim was transported by ambulance to the Mendocino Coast District Hospital in serious, but stable, condition.

Medical personnel at the scene and at the hospital emphatically stated that Deputy Lima’s timely and effective application of CPR saved the victim’s life.

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THANKS FOR THE DONATION, BOYS

Mendez, Ramirez
Mendez, Ramirez

On 03-12-2015 at 11:30 PM, a Mendocino County Sheriff's Deputy was driving behind a pickup truck on Highway 101, near the Gobbi Street exit, when he saw an occupant of the vehicle violate the Paul Buzzo Act. The Deputy conducted an enforcement stop of the vehicle and contacted the occupants.

The Deputy could readily smell the odor of marijuana coming from the truck and also established that the driver, Guadencia Mendez 36, of Santa Rosa, was driving with his license suspended and he was wanted for two outstanding arrest warrants.

The Deputy searched the vehicle and located about 15 pounds of processed marijuana, packaged for sale, and approximately 142,000. Mendez and the passenger, Rolando Rojas-Ramirez, 34, of Freedom, were arrested and taken into custody without incident. Rojas-Ramirez was found to be in possession of cocaine and methamphetamine.

Mendez along with his passenger Rojas-Ramirez were arrested and booked into the Mendocino County Jail for Possession For Sale-Marijuana, Sale/Transport/Furnish-Marijuana, Possession Of Money For Use, Possession Of A Controlled Substance, Possession of Methamphetamines and Driving on Suspended License. Mendez' bail was set at $40,000.00 and Rojas-Ramirez' bail was set at $30,000.00.

(Sheriff’s Press Release)

ED NOTE: The Buzzo Act is, most often, throwing a cig butt out the window of a traveling vehicle. One would think that two yobbos driving around with $142,000 cash money would be absolutely scrupulous about "obeying all laws." That money now becomes the property of the Mendo law enforcement.

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BETWEEN 03-16-2015 and 03-18-2015, Deputies with the Mendocino County Sheriff’s Office conducted an investigation into a reported theft of a redwood burl taken from property belonging to the Mendocino Coast Park and Recreation District located in the vicinity of 31000 Highway 20 in Fort Bragg.

Martin, Maki, Baker
Martin, Maki, Baker

During that investigation, Deputies identified and established that Charles Martin, 49, of Fort Bragg, Christopher Maki, 39, of Fort Bragg, and Cassidy Baker, 29, of Fort Bragg conspired to steal an approximate 90-cubic foot redwood burl. The redwood burl was taken from the Mendocino Coast Park and Recreation District Property to an undisclosed location in Butte County and sold for approximately $3,500.

On 03-18-2015 at approximately 1:30 P.M., Deputies contacted Martin within the 19000 block of Babcock Lane and arrested him for grand theft and conspiracy to commit a felony. Martin was additionally charged with providing false evidence to deputies during an interview. Martin was transported to the Mendocino County Jail where he is being held in lieu of $15,000 bail.

Grand theft and conspiracy charges are also being sought against Maki, who was currently incarcerated at the Mendocino County Jail on unrelated charges, and Baker.

(Sheriff’s Press Release)

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MILLION DOLLAR DASH

Henderson
Henderson

On 03-20-2015, at about 9:20 AM, Dustin Henderson was in a Superior Court of Mendocino County courtroom being addressed by a Superior Court Judge overhearing his criminal case. The Superior Court Judge ordered Henderson remanded (taken into custody and lodged at the county jail) for attempted murder. Henderson bolted from the courtroom, with a Mendocino County Sheriff Deputy (Bailiff) in pursuit.

Henderson broke a glass door as he ran out of the courthouse and fled, running northbound on North School St in the downtown Ukiah area.

Mendocino County Sheriff's Deputies with assistance of Ukiah Police Department Officers set up a perimeter just north of the Mendocino County Court House and a search of the area was conducted. A special agent of the Mendocino County Major Crimes Task Force located Henderson hiding in a creek under a bridge on North School St. Henderson was quickly taken into custody without further incident and returned to the Superior Court where his hearing was completed.

Henderson was then incarcerated at the Mendocino County Jail for the listed charges and is being held on 1 million dollars bail.

(Sheriff’s Press Release)

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FIREARM FELON

On 03-21-2015 at 0500 hours, Mendocino County Deputies conducted a traffic stop on a vehicle for a traffic violation.

Contreras
Contreras

The Deputy could smell the odor of fresh marijuana coming from inside the vehicle. The Deputy had both the driver, Erasmo Contreras, 27, of San Jose, and his passenger Naran Jolozano, 28, of San Jose, step out of the vehicle.

The Deputy had his K-9 partner conduct a search of the vehicle and the K-9 alerted on the vehicle.

A search of the vehicle was conducted and a small amount of marijuana was located. The Deputy also located a loaded handgun in the passenger compartment.

A search of their persons was conducted and Naran Jolozano was found to be in possession of methamphetamine and he was arrested. Contreras was determined to be a convicted felon and was arrested for being a felon in possession of a firearm.

Naran Jolozano was released with a citation to appear. Contreras was transported to the Mendocino County Jail and lodged with bail set at $25,000.00.

(Sheriff’s Press Release)

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CATCH OF THE DAY, March 24, 2015

Blackwell, Boettcher, Demartini, Litzin
Blackwell, Boettcher, Demartini, Litzin

ERIN BLACKWELL, Ukiah. Drunk in public. (Frequent flyer.)

THOMAS BOETTCHER, Fort Bragg. Drunk in public, drinking in public, parole violation, probation revocation.

REGINALD DEMARTINI, Willits. Drunk in public.

KEVIN LITZIN, Ukiah. Probation revocation. (Frequent flyer.)

Nozicka, Pollick, Scott, Tillman
Nozicka, Pollick, Scott, Tillman

JACOB NOZICKA, Ukiah. DUI, misdemeanor hit & run.

ALAN POLLICK, Ukiah. Drunk in public. (Frequent flyer.)

SALLY SCOTT, Klamath/Redwood Valley. Court order violation, failure to appear.

TASHINA TILLMAN, Willits. Under influence of controlled substance.

Timothy, Walton, Williams
Timothy, Walton, Williams

MILES TIMOTHY, Ukiah. DUI-drugs.

SHANNON WALTON, Santa Rosa/Ukiah. Failure to appear.

ERIC WILLIAMS, Calpella. DUI, possession of controlled substance, probation revocation.

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DUNCAN JAMES WINS A BIG ONE FOR THE REST OF US

March 24, 2015

Re: North Counties Engineering, et al. v. State Farm Insurance (2014) 224 Cal.App.4th 902

State Farm General Insurance Co. has cut checks totaling $8.5 million to settle precedent-setting "duty to defend" litigation stemming from a Mendocino County dam construction project. The deal was reached with a Ukiah law firm and its engineering client after a state appellate court in 2014 reversed a Sonoma County Superior Court decision in favor of State Farm.

As a result the Law Offices of Duncan James, received a final $7.5 million settlement payment this month from State Farm, ending years of protracted litigation centering on the insurance company's professional liability exclusion practices. The cash settlement reimburses North Counties Engineering of Ukiah for attorney's fees, costs, lost interest and damages. North Counties Engineering is essentially a one person professional corporation run by engineer Gary Akerstrom. State Farm is an insurance giant which insures more cars and homes than any other insurer in the U.S. It is currently ranked number 41 on the Fortune 500 list of largest companies.

The Court of Appeal decision underlying the settlement is already reshaping how general liability insurance coverage is viewed in courts statewide.

Attorney Duncan James said, "Although it was more than 10 years from beginning to end, justice was finally done. Unfortunately there are tens of thousands of policy holders who do not have the financial resources to stand up against insurance companies such as State Farm so they get buried by the insurance company's nearly unlimited litigation budgets. When an individual does finally stand up against them, such as in this case, it is a rare occurrence." Donald McMullen, a James' associate who prepared the successful state court appeal along with James and co-attorney John Turri, said the appellate court ruling already has been cited in dozens of insurance coverage-cases, legal writings and books nationally.

McMullen said, "The Court of Appeal's ruling set limits on an insurance company's ability to deny coverage by using a standard exclusion contained in tens of thousands of insurance policies issued each year state wide." McMullen said State Farm took the position that "this exclusion was triggered where a claim stemmed from any work performed by an insured business for compensation.

That interpretation would have literally eviscerated liability coverage for all business conducted by insured businesses with these standard clauses, rendering general liability policies almost worthless. "The Court of Appeal correctly rejected State Farm's efforts, making it clear that insurance companies must meet their defense obligations agreed to in the insurance policy," said McMullen.

The settlement and lawsuit centers on a Redwood Valley winery dam construction project, first proposed in the mid-1970s North Counties Engineering entered into a contract in 1974 with Lolonis Vineyards to design a dam. Actual construction, however, didn't begin for more than 20 years when North Counties Engineering and another firm contracted with Lolonis to build it. The state-approved dam project was finally completed in 1999. Five years later, State regulators sued Lolonis after investigating neighbors' complaints about erosion and excess sediment in surrounding waterways that occurred shortly after the dam was completed. The winery in turn filed a lawsuit against North Counties Engineering, alleging, in part, that the downstream damage was caused by negligent dam construction. At the time of the occurrence during the winter of 1999-2000, the State Farm insurance policy included the standard "professional services" exclusion to coverage, and specifically added coverage for damages arising from North Counties' completed work.

North Counties Engineering tendered both lawsuits to State Farm; seeking defense under a business liability policy which it believed covered the firm's legal challenges.

State Farm denied coverage to the engineering firm, and refused to defend it in the dam-related litigation. At the time, the insurance company falsely claimed North Counties did not have coverage for completed work and argued that policy exclusions precluded coverage because engineering is one of several "professional services" expressly named.

State Farm continued to deny coverage for several years despite the fact that North Counties was able to provide copies of policies that in fact showed work on the dam project was insured. Eventually in September, 2007, State Farm's own internal investigation concurred that in fact coverage as claimed had been issued to North Counties. Beginning in September, 2007, State Farm began to help cover a portion of the engineering company's continuing defense costs but still refused to reimburse the company for more than $500,000 in legal fees from years prior. In 2010, North Counties and Lolonis Winery settled their legal dispute over the dam project, leaving the engineering firm to focus on its legal battle with State Farm.

The James law firm pressed its breach of contract and bad faith lawsuit against State Farm, and prepared for a jury trial in Sonoma County Superior Court in July, 2011. Even though evidence disclosed during 18 days of trial testimony showed a series of mistakes were made by State Farm employees surrounding the issuance of the policy to North Counties Engineering, now retired Sonoma Superior Court Judge Mark Tansil tossed out the case before the jury could deliberate. Tansil granted a directed verdict in favor of State Farm, finding it never had a duty to defend because all work performed by North Counties was "professional" in nature, including actual construction work at the Lolonis dam site.

The Ukiah law firm and North Counties Engineering turned to the state Court of Appeal, arguing that the engineering firm's "ordinary labor" was not the performance of "professional services" within meaning of State Farm's general liability exclusion practices.

The panel of three appellate court Justices unanimously agreed that the professional liability exclusion in a general liability policy does preclude coverage for true "engineering services," but it does not preclude coverage for ordinary construction work done by policy holders, even if they are professionals, like engineers.

Specifically the appellate court found that State Farm's claimed exclusion was inapplicable because the evidence showed that North Counties Engineering performed ordinary labor and construction work in connection with building the Lolonis dam, and in fact had been sued by the winery for negligent construction, which was covered under the policy's completed work provision. The court determined that the firm's manual labor and construction work did not fall within the State Farm's definition of "professional services," and overturned the lower court ruling.

Very truly yours,

Duncan M. James, Attorney at Law, Ukiah

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AVHC UPDATE

March meeting Thurs. 6:00, Veterans Building Boonville.]

Please note the change of venue - The AVHC board meeting will take place at the Veterans Building / Senior Center, NOT the AVCSD/firehouse, at 6 pm, Thursday, March 26.

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Directors and staff will meet at the AV fire department training room at the Boonville fire station at 6 :00 PM. Meeting is open to the public. No minutes or agenda yet, no staff or committee reports, *Keep checking the moribund website for official news.*

*A sad note *to those of you who have been with this list since its beginning as "Aging in Place" over a year ago. Bob Reeds passed away at Christmas time this year. Bob, who started the discussion about what facilities are available to us to enable us to stay in the places we have built, as we get inevitably unable to do what we have done for so long, compiled a list of resources and got some of the many providers to come to the Valley to discuss what we might expect if we need care. His wife, Betty, sent me his file, and I will re-send a summary of those contacts to you shortly. Betty has decided to sell their house and will return back East to live with her daughter.

About the same time as Aging in Place began, last year's multiple crises hit the health Center and Janet Morris asked us how sure we were that even our existing facilities would still be available when we needed them. That's when Aging in Place morphed into the AVHC list, and although great progress has been made, there are major new threats to be addressed.

Some of the many personnel changes at the health center supposedly gave Mark Apfel more time and authorization to continue to work with geriatric and hospice care. So far there has been no word of any new services, nor of any services or programs at all, provided officially by AVHC specifically for geriatric or hospice care. Keep asking.

AVHC February meeting:

My February notes: *my opinions in Italic*

Correct name of our interim HRSA project officer is Nahleen Heard.

New director Emilio Torales has resigned, wanting to continue his education. The term of the seat he occupied expires in 2015. If you are interested in serving as a director, apply to director *Clay Eubank*, chair of the Board Development and Governance Committee. clayeubank@gmail.com .

The Board may have between nine and fifteen members; presently there are eleven (including the two student members, Maxence Weyrich and Mayte Guerrero, whose terms are for one year) but they continue to look for qualified and interested people. Others of the present Board, Ric Bonner, chair; Heidi Knott Gundling, secretary; JR Collins, Treasurer and chair of the Finance Committee, Kathy Cox, vice chair and chair of the Performance Improvement Committee -- these four also constitute the Executive Committee of the Board -- Eric Labowitz, chair of the political action subcommittee, Walter Hopkins, chair of the Building and Grounds sub-committee, Deborah Covey, and Ivan Jimenez.

Executive Director search, Committee chair Bill Sterling reported twelve or thirteen applicants, now four finalists for live interviews. Scheduled for March interviews, will attempt to get all employees to visit with applicants.

There were still no written staff or committee reports, and agenda and minutes of previous meeting were in very limited supply. There was no financial report for February. [There is no excuse for the continued absence of required minutes and staff reports. These normal informational tools can be easily posted on line. People can print their own and take them to meetings, thus relieving the center from the need to supply them at the meeting, but even more, so that the directors will have advance information to consider before discussing and acting on it at the meeting.]

Mark Apfel reported - New policy and procedures for the dispensing pharmacy have been approved by pharmacist Gary Wakeman, and he will be able to work as an independent consultant, hope to finalize mid-May [a year since the arbitrary closure by the previous administrator and board]. Still lack required director fingerprints from Ivan Jimenez and Mayte Guererro.

Apfel has done peer review of medical staff; independent chart review to be done by George Lee (OB/GYN). Psychologist Danny Mandlebaum to do independent review of Jessica McIninch and a dental clinic director [I did not get name] will do same for Phan Tath.

Apfel attended the February ARCH meeting (a consortium of area rural community health organizations) which is undergoing some reorganization discussions, including possible merger of coast clinics and Humboldt Co. clinics. *[Big push from Feds and some local provider organizations for consolidated management--supposed administrative cost savings--AVHC patients may remember what the consolidated management forced on us by the Feds has cost us in the past two years]

* * *

According to Apfel, ARCH discussed concerns about upcoming (Sep. 2015) Congressional action which may terminate federal grant funding for rural clinics. [There was only a Ho-Hum reaction by directors to this possible threat to more than half of our grant revenue, an amount about equal to the total MediCal revenue from patients, ---"Don't know what we can do, our legislators are pretty much on board anyway."]

Business Mananger Favi Cornejo told directors that expenditures for information technology is over budget. New IT programs had cost more and will require more training, on diagnosis coding. Kelly Muldinado and Sandy Parker will be consulting. [No director discussion on break-down of budget overrun, or what the cost of consulting for new training would be, or what the qualifications of the consultants are, or if there was competitive bidding for the consultant contracts.]

She has posted a job opening for Michelle Ambrose"s maternity leave vacancy. The position is for an RN Clinical Manager. [She has not posted it publicly on the AVHC web site, nor advertised it locally. There was no discussion of why the change in the title, is there a new organizational structure for nursing? What are the cost differences for compensation for RN vs. RN/Clinical Manager? What are the duties of a Clinical Manager?]

Front desk employees will be instructed to make sure that patients pay their co-pay at time of consultation, [No waiting for your insurance estimate of benefits, have your $20 in your hand when you go in.]

Executive Director Susan Smith told directors that the health center needed human relations consulting, needs to revamp the employee handbook, needs a review of safety and ergonometric issues; [The HC also needs a human relations sub-committee on the Board, if it had one it might have avoided most of the personnel difficulties that dogged us last year, but which still are troubling in many areas.] the HC needs a billing consultant to solve the long standing mess of HC billing. [The changing code requirements and the lack of medical staff training for proper coding, and the different pay-out procedures of various insurance agencies, and the complications of an ill-defined and poorly supervised "sliding scale" for payment have all led to a major accounts receivable deficit which hopefully will get task-force attention, but no comment from directors.]

Smith also discussed a possible pilot program to address the problem of a majority of patients' inability to answer "What the doctor told me" after a visit. She also briefly mentioned a possible $2700 fee to "decontaminate" the "T-1 line" used by the ambulance [a tenant of the clinic, paying negligible rent] as well as the clinic to make sure clinic data is not compromised.

Director Clay Eubank said March 4th was the date for director training with an outside consultant, at the senior center, including lunch, an all day session.

Director Hopkins reported he again fixed a toilet; a door latch; the cork-board in the dental clinic, a door slide, new shelves in Exam Rm. #4, and was looking for an emergency generator, hoping for surplus MCOE.

Director Cox said the Performance Improvement Committee had met in February and would meet again in March to review HIPPA regulations and performance. Cox chairs the committee comprised of Hopkins, Smith, Apfel, Tath, McIninch, Covey, Eubank and George Lee. Their job is to improve Quality Improvement policies and programs, and oversee and monitor progress of quality improvement activities, including clinical activities, performance goals, and measures.

There still is no strategic planning or needs assessment activity reported.

Here's what I would like to see for an agenda for March 26.

Approve Agenda

Approved Minutes

Any input from Concerned Citizens

Search Committee Report - Sterling

Staff Reports

Smith

Cornejo

Board Committee Reports

Executive - Bonner

Finance - Collins

Building and Grounds - Hopkins

Board Governance - Eubanks

Any other Committee actions

Old Business:

Report on Board training.

Status of Web Site

Status of Pharmacy

RN vacancy

Any new consultant hires, including cost, job descriptions

FY 2015/16 Budget Preparation schedule

New Business:

Fiscal cliff

HRSA directives

New Grant Funding

I hope some of you can come on Thursday.

Cheers,

— Gene Herr

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PD GETS AROUND TO COAST HOTEL CONTROVERSY

http://www.pressdemocrat.com/news/3704450-181/plans-for-fort-braggs-old

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SHERIFF CONVERTING TO NEW EMERGENCY MOBILE ALERT PROGRAM.

http://www.ukiahdailyjournal.com/general-news/20150323/mendocino-county-sheriffs-office-establishing-new-alert-service

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SAVING THE OLD COAST HOTEL

Concerned Citizens Of Fort Bragg,

Petitioner/Plaintiff,

Vs.

City Of Fort Bragg And California

Department Of Housing And Community Development, Respondents/Defendants

Case No.: 15-65240

Application For Temporary Restraining Order Or Other

Appropriate Injunctive Relief; Declaration Of Counsel

Date: Thursday, March 26, 2015

Time: 1:15 p.m.

Dept: Ten Mile

Petitioner hereby applies for an order restraining respondents from further approval and/or funding the challenged project with public funds pending an additional hearing on their motion for preliminary injunction.

This application is made under Code of Civil Procedure section 527(a), which authorizes this court to issue a temporary restraining order without notice to the opposite party if the verified complaint shows that great or irreparable injury would result to the applicant before the matter can be heard on noticed motion.

The grounds of this application are that:

1.Petitioner and the interests petitioner seeks to protect will be irreparably injured should respondents approve funding and fund the challenged project while this suit is pending;

2.The public interest favors resolution of the substantial public issues presented in the petition for writ and complaint for injunctive and declaratory relief and such issues could be rendered moot if funding is approved and provided; and

3.Respondents cannot claim that the requested stay will cause them any injury, since there is no immediate or fixed deadline for funding such that a temporary delay to allow full consideration would not jeopardize the sale or the grant..

This application is further based on the pleadings, papers and records filed in this action, counsel’s declaration set out below, the accompanying points and authorities, and any oral and documentary evidence that may be presented upon the hearing of this application.

Dated: March 23, 2015.

Rodney R. Jones

DECLARATION OF COUNSEL

I, Rodney R. Jones, declare:

As counsel for petitioner/plaintiff, I have made extensive efforts to avoid the need to apply for this restraining order but have been met with delay, intransigence and finally flat refusal to agree to any orderly proceeding. This action was filed on March 13, 2015 based in part on the information that a private-party escrow was soon to be established for the purchase of the Old Coast Hotel with federal block grant funds and the fact that respondent City had approved the application after only one public hearing as to this site or location on January 12, 2015. It is slated for final approval to disburse the funds at the Council’s meeting of April 13, 2015.

Subsequent to the 3-1-1 approval of the project in January, two of the three voting in favor of the project were individually approached by members of CCFB to determine if either might be amenable, particularly in light of a lengthy five-page letter of mine delivered to the Council on March 4, 2015, to reconsidering their approval and allowing further public input and reassessment. The reports back from these meetings is that both members remained firm in their positions, one even indicating that he did not need to look at any additional information offered by CCFB because he had full faith in City staff and there was no more to be considered. It is thus apparent to me that the likelihood of any reversal of direction or attention to any of the defects outlined in my letter and these pleadings will not be addressed prior to that April final approval.

Originally, plaintiff intended to seek a TRO on March 17 or 18 and advised the City accordingly. However, on receiving a call from City Attorney Samantha Zutler prior to filing of the action on March 6, I opened the discussion with her about finding a more orderly and less time-stressed approach to judicial review. I also agreed to delay our intended application because she advised she would be out of town in the Midwest during the two or three days in the middle of that week (i.e. March 17-19) and her earliest possible available date would be Friday, March 20.

While not having an obligation to set for the convenience of counsel with regard to an ex parte TRO application, I chose to try to do so because I wished the court to be as fully informed as possible in making its decision. I also wanted to insure that the State of California had received its copy of the complaint and determine who the assigned deputy attorney general would be.

Late on March 17, 2015, I wrote Zutler, indicating my distress at her not having provided some dates for a hearing and added:

“I'm reverting to written communication because I want to keep the record clear, as I've indicated before. The question you're trying to get answered, it seems to me, is a simple and straight forward one that should not require such delay. We had left matters that I was not proceeding on a TRO hearing on Wednesday afternoon, as originally planned, and was amenable to moving it (for your convenience) to Friday or possibly setting an injunction hearing instead for April 14, in order to allow the greatest possible latitude to the City Council in the unlikely event that there is a change of heart by the three members who approved the first resolution on January 12.”

Again, Zutler offered a prompt reply:

“I do have an answer for you. Yes, if the Council votes to approve the loan at the April 13 Council meeting, the City will agree to not disburse the funds for at least seven (7) days. Moreover, escrow has not opened. [ ] I try really hard to argue issues on the merits and be a straight shooter on everything else. [ ] Also, once I hear back on one outstanding scheduling issue, I'll get you some dates that I'm available the week of April 13 for a TRO hearing.”

Hearing nothing further by the end of the workday on Wednesday, March 18, I wrote both Zutler and Deputy Attorney General Alan Alderson, who was now in the email exchange, and offered this proposal:

“Tomorrow I'd like to suggest we nail down specifics on this case that include a hearing date and briefing schedule. I'm uncomfortable just leaving things hanging. To get this ball moving, I'd offer:

  1. Motion for Preliminary Injunction hearing to be set for Wednesday, April 15 at 2:00 Law & Motion calendar (and I will confirm availability with court clerk, though the existing calendar indicates that should work).
  2. Pending hearing, no funding of CDBG grant and an agreed-upon stay for seven days after the April 13 resolution approval, or until the close of business on Monday, April 20, both to allow for this hearing to take place and the judge to have time to consider.
  3. Plaintiff to file Motion on or by Monday, March 23 with same day e-service of pleadings.
  4. Defendants to respond on or by Thursday, April 2 with e-service, etc.
  5. Plaintiff to file reply or replies on or by Thursday, April 9 with e-service, etc.
  6. Parties to stipulate to results of Council action on April 13 and City to provide court with copy of resolution by noon of April 14.

Please review and give me your thoughts on this. Thanks.”

The next day (March 19) involved an exchange of emails in trying to find a time to confer by phone. At about 5 p.m., Zutler wrote, “I think we can likely still work out a solution, but I just want to point out that what you propose below is completely different than what we've been discussing, and what the City agreed to - which was that you would file a TRO on April 14. Again, I think we can find a solution, and I think that ultimately filing a PI (and skipping the TRO) may make more sense all around, but the City needs a bit of time to consider your revised approach.”

I responded a few minutes later, saying, in part, “I think it's rather wasteful to go the TRO route and then return in 10 days for a PI hearing, don't you? We've got some time to work with here and what I contemplated is consolidating everything in a bundle with everyone having a full opportunity for their say on the subject. I respectfully disagree on the ripeness matter in terms of the mere filing of a motion. I think the key is adjudication of the claim and not the filing date. Further, if the parties agree to a decent schedule and crystallize the issues, won't that be better for everyone?”

Zutler promptly replied:

“Yes, I do think it's wasteful to file a TRO, and then (assuming you prevail) a PI. But that doesn't change the fact that, if you file before April 13, you will be attempting to enjoin a decision that has not yet been made. Should the court rule against you on ripeness, you will then (presumably) have to re-file on the merits. That seems even more wasteful. Again, please let me get back to you after I've talked to the City.”

Late in the day on Friday, March 20, Zutler wrote:

“I've talked to the City, and I'm not sure what else we can do. We agreed to a 7 day waiting period after April 13 so that you could file a TRO on April 14. The reason the City agreed to the 7 day extension was because you agreed to file the TRO after April 13 - that way, the parties could argue the TRO on the merits, rather than the ripeness issue. I certainly agree with you that filing a PI (instead of a TRO) makes more sense, and would be more efficient for both parties, but filing before April 13 defeats the purpose entirely. What you're now proposing - that you file a PI on March 23 - was not our agreement. So, from the City's perspective, you violated our agreement. We are reluctant to enter into another agreement, out of concern that you will violate that agreement as well.”

Zutler went on to say the City intended to expeditiously file a demurrer and ended the discussion. I replied that there had never been any agreement reached beyond my making a six-part proposal and asked how the filing of papers in preparation for a later hearing was somehow “violating” such an agreement.

On Sunday evening, March 22, 2015, Zutler wrote an email suggesting a phone conference on Monday morning. I wrote back that night and declined. Then she wrote another email Monday morning that did not further address her claim that I violated some agreement and offered to further talk about issues addressed a few days ago, adding, “I understand your desire to have the matter heard as soon as possible. The City wants the same thing. But, if you set a hearing date for April 14, and the briefs are due before the Council makes the decision that you are trying to stop - what will we brief?” I responded at length to her email, indicated I was likely to be filing my papers for a TRO sometime later today, and would provide both Zutler and Alderson notice of the date and time. Alderson has been copied on all recent email correspondence.

Because of this breakdown in communication and the City’s unwillingness to allow the pre-hearing filing of papers for a standard hearing sometime mid-April, plaintiff elects to seek a specific restraining order that will safely maintain the status quo pending a full injunction hearing and seeks to have that set for a convenient time in the week following the City’s anticipated final approval on April 13, 2015.

On Friday, March 20, I advised both Zutler and Alderson by email of plaintiff’s intention to file these papers and seek a TRO the next week. Today, I wrote them again and indicated plaintiff would likely be filing papers this afternoon and, once they are filed, I would notify them. I said plaintiff would likely seek a hearing on Thursday, March 26 at 1:15 p.m. in the Ten Mile Court.

I declare under penalty of perjury that the foregoing is true and correct. Dated March 23, 2015 at Mendocino, California.

* * *

POINT & AUTHORITIES IN SUPPORT FOR TRO OR OTHER INJUNCTIVE RELIEF

Introduction

Petitioner/plaintiff has alleged much of the factual basis or context surrounding this dispute in its verified petition/complaint and incorporates that document in this memorandum.

Importantly, respondents are moving full-steam ahead to complete steps to disburse funds, with escrow scheduled to open forthwith and a web page devoted to an announcement of this project on the City’s website.[1] (Exh. No. 1 [attached].) The City plans to pass its final approval resolution on April 13, 2015. The conclusion is pre-ordained. The City has manifested no desire to correct any of the existing and important record deficiencies identified. Time is of the essence and petitioner has taken all steps to expeditiously bring this matter before the court, trying unsuccessfully to defer hearing until all parties could be present and the issues fully briefed. As explained in the Application for TRO, that was not to be.

Plaintiff has exceeded all standard requirements for a TRO by providing a lengthy application with counsel’s declaration, extensive points & authorities, and a number of individual declarations that establish firm factual footing for the court’s decision. Each defect has been separately identified in the petition/complaint and then elaborated upon in the points & authorities. The declarations address each claim, most of the defects being readily apparent from the existing record and which cannot be denied by the City of Fort Bragg. Declarations address the lack of notice, the failure to disclose key information,[2] the flimsy underlying factual nature of the City’s assessment of the needs of the homeless, and the entire unsuitability of the chosen site for the chosen services to be delivered there.

  1. Denial Of Public Participation & Due Process
  2. Lack of Accurate Public Notice of January 2015 Council Meeting

A number of citizens were confused about both the timing and location of the meeting on January 12, 2005, which was a key session, and the only such meeting, when the Council approved funding. The City published the meeting agenda on December 31, 2014 but it had the wrong address (showing a new location at South Franklin rather than North Franklin). (Exhibit No. 2 [attached].)

The local newspaper wrote an article correcting this error but the paper was not published until January 8, 2015. This was the same day the City posted an amended agenda. Such late notice gave the public only four days to comment and/or make arrangements to attend the Council meeting. While the corrective action by City staff was appropriate and necessary, the resultant time line was grossly insufficient for robust public participation, especially when only a single meeting was to decide the use of $1.2 million in tax dollars.

As recited in the petition/complaint, by the next Council meeting on January 26, upset citizens presented a petition containing about 1,220 signatures during the open public comment period, as the project was not agendized for discussion. It stated: “We wish for reconsideration of your decision…We feel the public was not noticed properly. Those in favor of the project had prior knowledge of the purchase while the business people and general public were not informed until the weekly paper was delivered.”

(Emphasis in original.) Defendant City has never responded to the situation or offered to correct the notice problem by way of a further hearing. Accordingly, plaintiff presents a copy of those petitions separately bundled with a cover declaration and incorporated here by reference.

  1. Obligation upon Project Location Change

HUD “Citizen Participation Requirements” found in subpart (a) of 24 CFR §570.486 [Local government requirements] specify that local agencies must, “Ensure that citizens will be given reasonable and timely access to local meetings, information, and records relating to the unit of local government's proposed and actual use of CDBG funds.” The agency must “[p]rovide for a minimum of two public hearings, each at a different stage of the program, for the purpose of obtaining citizens' views and responding to proposals and questions.” Finally, and of equal importance, the agency must “[p]rovide citizens with reasonable advance notice of, and opportunity to comment on, proposed activities in an application to the state and, for grants already made, activities which are proposed to be added, deleted or substantially changed from the unit of general local government's application to the state. Substantially changed means changes made in terms of purpose, scope, location or beneficiaries as defined by criteria established by the state.” (Emphasis added.]

Subpart (2) of section 570.486 also requires that “citizens will be given reasonable and timely access to local meetings, information, and records relating to the unit of local government's proposed and actual use of CDBG funds” and be informed how “[t]he estimated amount of the CDBG funds proposed to be used for activities that will meet the national objective of benefit to low and moderate income persons.”

It cannot be overemphasized that subpart (5) obliges “a minimum of two public hearings, each at a different stage of the program, for the purpose of obtaining citizens' views and responding to proposals and questions. Together the hearings must cover community development and housing needs, development of proposed activities and a review of program performance.” And subpart (7) instructs the City that it must “[p]rovide citizens the address, phone number, and times for submitting complaints and grievances, and provide timely written answers to written complaints and grievances, within 15 working days where practicable.” There was no compliance with these provisions, aside from an initial hearing that focused on the original North Harrison location.

II.Unfilled Requirements: Environmental Assessment

A.No Initial Study, No CEQA Evaluation

As indicated in the petition/complaint, state law obliges grantee to “assume the responsibility for environmental review, decision-making and all other actions required under” CEQA or NEPA. This action by City and State constitutes a “project” within the meaning of CEQA and is not statutorily or categorically exempt from environmental review. City staff is aware of this obligation, having publicly stated that “execution of a purchase or lease agreement prior to conducting an environmental review and obtaining aware [sic] and release of CDBG funds, is not allowed.”

While defendant City has recognized an obligation to perform an environmental review, beginning with an Initial Study, none was done here. Yet this action on its face constitutes a “project” within the meaning of CEQA and is not statutorily or categorically exempt from environmental review. City staff has expressly stated that “execution of a purchase or lease agreement prior to conducting an environmental review and obtaining aware [sic] and release of CDBG funds, is not allowed.”

This duty is underscored in 24 CFR Part 58 (Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities). Section 58.4, subdivision (a) (Assumption authority) recites that “Responsible entities shall assume the responsibility for environmental review, decision-making, and action that would otherwise apply to HUD under NEPA and other provisions of law that further the purposes of NEPA, as specified in section 58.5.” Subpart (b)(1) goes on: “States are recipients for purposes of directly undertaking a State project and must assume the

environmental review responsibilities for the State's activities and those of any non- governmental entity that may participate in the project. In this case, the State must submit the certification and RROF to HUD for approval.” Section 58.36 (Environmental assessments) provides that, “If a project is not exempt or categorically excluded. . . the responsible entity must prepare an EA in accordance with subpart E of this part. If it is evident without preparing an EA that an EIS is required under Sec. 58.37, the responsible entity should proceed directly to an EIS.”

Paralleling the CFR, Title 25, section 7082 of the California Code of Regulations concerns Environmental Reviews and specifies that a grantee “shall assume the responsibility for environmental review, decision-making and all other actions required under the California Environmental Quality Act of 1970 (CEQA), Public Resources Code 21000 et seq.; and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.”

Timing is essential, such that a premature location choice does not distort an objective analysis. Section 58.41 (b) expresses that, “When the responsible entity is conducting an environmental review on behalf of a recipient, as provided for in Sec. 58.10, the recipient must provide the responsible entity with all available project and

environmental information and refrain from undertaking any physical activities or choice limiting actions until HUD (or the State, if applicable) has approved its request for release of funds.” From what plaintiff can determine, there was no compliance or minimal compliance with these requirement that is legally insufficient.

There are no statutory or categorical exemptions at play here. Moreover, even if some exemption appeared applicable to this project, the City would at least need to conduct an Initial Study and issue findings to that effect. Categorical exemptions themselves are not absolute and at least three exceptions exist to their use as specified in 14 C.C.R. section 15300.2. One concerns any time there is “a reasonable possibility” of a significant harm “due to unusual circumstances.” (Sec. 15300.2, subpart (c); see also Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1260.) Nor can it be reasonably claimed that this project is simply a “repair” or “maintenance” activity, as provided in 14 C.C.R. section 15301. (See generally Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.4th 1165.)

  1. No Compliance with Federal Lead Paint Assessment Rule

Federal Law (Title 24 CFR) requires the recipient of block grant funds to “supply all available, relevant information necessary for HUD to perform for each property any environmental review required by 24 CFR part 50. The recipient also shall carry out mitigating measures required by HUD or select alternate eligible property.” Given that this proposed use would likely involve families with small children, section 576.403

[Shelter and housing standards] is particularly relevant in terms of a lead-based paint evaluation and remediation. City has evidently not done such an assessment and the state has not required such action, fully ignoring federal health mandates.

  1. Prospective Violation Of City Zoning Law

The updated Fort Bragg Inland General Plan Housing Element was adopted in 2014 and has been certified by the State Department of Housing and Community Development (HCD). Consistency of the Housing Element with the other elements of the City's General Plan and zoning ordinances is essential to having a complete and legally adequate General Plan. Goal H-3 specifies that the City should “[e]xpand affordable housing opportunities for persons with special housing needs such as the elderly, the disabled, households with very low to moderate incomes, and first time home buyers.” The Element indicates the City should “[s]eek available State and Federal assistance to develop affordable housing for seniors, the disabled, persons with developmental disabilities, lower-income large households, and households with special housing needs.”

The only place where emergency/transitional housing is addressed in the City’s Housing Element is under Policy H-3.9 (Emergency and Transitional Housing). There, the City promises merely to “[c]ontinue to support emergency shelters, transitional housing and supportive housing within the City,” and “to regulate transitional and supportive housing as a residential use subject to the same restrictions that apply to other residential use types and dwellings of the same type in the same zone.” Despite a direct conflict with the Zoning Code section 18.22.030, the Element indicates that, as to “Emergency shelters,” the City should “[c]ontinue to allow emergency shelters as a permitted use in the General Commercial (CG) zoning district.” Section 18.22.030 of the City’s Zoning Code, as expressed in Table 2-6 that is a part of the Code, indicates that “Emergency/transitional shelter” is not allowed in the Central Business District. When the apparent discrepancy was pointed out to the City, it refused to respond and this refusal to explain or discuss the matter has persisted to the present.

III. Prejudicial Abuse Of Discretion By Both Agencies

An agency abuses its discretion when it has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. Agency action should be reversed by a court when the agency did not proceed in the manner required by law or when substantial evidence fails to support its decision. (See generally Save Tara v. City of West Hollywood (Waset, Inc.) (2008) 45 Cal.4th 116.)

The improper awarding of a contract that does not comply with regulations and guidelines can constitute an abuse of discretion and it is within the power of the court to make that determination by a writ lawsuit. Certainly mandamus will not control lawful and properly-exercised discretion, it will lie to correct an abuse of discretion by a public agency, officer or board. (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2015) [__ Cal.App.4th __], citing Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 824-826.)

The City has publicly acknowledged that it does not even know the extent and nature of the homeless population within its geographic limits. It is Housing Element, the City states that “[a]ccurate information on the number of homeless persons is not available for the City of Fort Bragg.” (Housing Element, 10-42) Without specification, detail, or justification, the Housing Element concludes by saying, “The City works with the Mendocino Coast Hospitality Center to identify, acquire, and expand facilities to serve the homeless in Fort Bragg.” (Housing Element, 10-43) It does so in an empirical void, being fed anecdotal information from the MCHC in what is an apparent conflict-of-interest situation, and then using that as the basis to create statistical guesswork with countywide data.

Nowhere has the City sought to explain why this site was selected over the approximate twenty-plus other sites that MCHC claimed to have reviewed. Nowhere does the City analyze the cost-effectiveness of spending $1.2 million in taxpayer dollars that will only produce 5 additional rooms for emergency/transitional shelter when it has indicated the deficiency is as many as 20 needed rooms. Why a facility that offers the necessary number of rooms cannot be acquired for over a million dollars is not explained anywhere.

To add to this casual approach to exercising discretion over such considerable sums of money, the City’s Housing Element Table 6.10 “Transitional and Emergency Housing” states there already exists “transitional housing” in the form of 15 beds at a facility located at “331 N. Harrison Street ½.” Further, that there are 20 individual beds and 4 family beds as “emergency housing” at Hospitality House. (Housing Element, 10-43) If this is true, then the factual basis provided the public in the various planning documents for this project are fatally flawed and the claim that an additional 35 beds are necessary is simply unsupported by any substantial evidence.

Defendant City has ignored and refused to consider the unique circumstances of this project in terms of the providing of services to a select clientele needing mental health services and who have a right to strict confidentiality and privacy. They may wish not to have their identity and need for services publicly displayed by seeking services at such a central “fishbowl” location with heavy traffic and a four-way stop sign that provides significant opportunity to observe those entering and leaving a corner facility. The various problems with this site, problems that both the City and MCHC steadfastly refuse to address, are elaborated in the attached declarations from professional mental health service providers.

There are only two off-street parking places for this facility, so any clients with vehicles will need to park on the street. It remains unclear why the project gets an exemption from occupancy-to-parking requirements under the local zoning code. City has failed to respond to this issue.

Estimates are that as many as many as 18 MCHC staff will work at this location and perhaps 50 clients per day may seek services. Plans call additionally for the posting of a uniformed police officer at or nearby, which will further stigmatize users and clients. That this is a fundamentally bad idea is addressed by one or more of the attached declarations. Again, City has not talked to the point.

Part of these taxpayer funds will be used to pay for a contract that MCHC has with Ortner Management Group, LLC of Yuba City for provisions of mental health counseling services. Contractually, MCHC has promised to provide services in accordance with the requirements of Title 9 of the Code of Regulations and Welfare & Institutions Code sections 5600 et seq. Section 5325.1 (b) specifically provides that persons with mental illness have the right to “right to dignity, privacy, and humane care.”

Petitioner likewise alleges procedural flaws in that defendants were obliged to properly notice with adequate time the January 12, 2015 meeting and failed to do so. Federal and state regulations required two hearings, when only one was had. Grants are supposed to show how the 12% administrative cap is met and this one does not.

This grant must be administered by a CAA (community action agency) with grassroots representation in the form of a tripartite board of governance, and this project has not of these attributes. Government Code section 12750 (a) specifies that a CAA “shall be a public or private nonprofit agency that fulfills all of the following requirements:

(1) Has been designated by the director to operate a community action program.

(2) Has a tripartite board structure meeting the requirements of Section 12751.

(3) Has the power, authority, and capability to plan, conduct, administer, and evaluate a community action program, including the power to enter into contracts with other public and private nonprofit agencies and organizations to assist in fulfilling the purposes of this chapter.

Defendant City has not adopted and/or published a Community Action Plan, as required by Government Code section 12747 (a). Such CAPs must be “developed by eligible entities as required by the secretary and the director using processes that assess poverty-related needs, available resources, and feasible goals and strategies, and that yield program priorities consistent with standards of effectiveness established for this program. Community action plans shall identify eligible activities to be funded in the program service areas and the needs that each activity is designed to meet.”

  1. A Taxpayer’s Suit For An Injunction Is Appropriate

Under Code of Civil Procedure section 526a, a taxpayer may challenge wasteful or illegal government action that otherwise would go unchallenged because of standing requirements. (Vasquez v. State of California (2003) 105 Cal.App.4th at p. 854.) The purpose of section 526a “is to permit a large body of persons to challenge wasteful government action that otherwise would go unchallenged because of the standing requirement. [Citation.] ... [A]lthough by its terms the statute applies to local governments, it has been judicially extended to all state and local agencies and officials. [Citations.]” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240.)

" '[T]he individual citizen must be able to take the initiative through taxpayers' suits to keep government accountable on the state as well as on the local level.' [Citation.]" (Farley v. Cory (1978) 78 Cal.App.3d 583, 589.) A suit must allege specific facts and reasons for the belief the expenditure of public funds sought to be enjoined is illegal, i.e. more than “an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138.) This well-established rule ensures that the California courts, by entertaining only those taxpayers' suits that seek to measure governmental performance against a legal standard, do not trespass into the domain of legislative or executive discretion. (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 160-161.)

  1. The Issues Are Ripe For Adjudication

The claims and issues presented exist in present time. The City has shown absolutely no inclination to address, let alone cure, these issues. Instead, City wants to march forward without further reflection. As indicated in the Application for TRO, two of the three council members who voted in favor of the project have clearly expressed their absolute intention to remain steadfast and approve the final resolution. Yet it would take one who voted in the majority to reconsider and that is not in the cards. So it is appropriate now to stay further action pending a full injunction hearing. That would simply entail the City postponing its April 12 vote to April 26 or later, in order to accommodate a briefing schedule.

Rather than respond in any fashion on the merits, it is expected that the City will attempt to demur to the petition/complaint, with a fallback position that the matter is not ripe for adjudication until after the “I’s” are dotted and the “T’s” crossed. But that is an inaccurate interpretation of the ripeness doctrine.

As recently as 10 days ago, the First District had occasion to address this doctrine in People v. Johnson (3-13-15; No. A136573) ___ Cal.App.4th ___. At page 17 of the slip opinion it said this:

"The ripeness requirement . . . prevents courts from issuing purely advisory opinions. It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion . . . [and] is primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) The ripeness doctrine, however, should not prevent courts from adjudicating matters where: (1) the dispute is concrete and appropriate for immediate resolution and (2) delayed resolution would present a hardship to the parties. (Id. at pp. 170-173.)

Further, the court is not even being asked to fully adjudicate the controversy, as plaintiff is quite prepared to lock horns with respondents in a regular, noticed hearing. Plaintiffs are seeking only to restrain City and State from rendering this issue moot by way of some backdoor arrangement that expeditiously provides funds to the escrow account. Certainly, there now exists an “actual controversy” that has been fully articulated. “A controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” [Citation.] But “ripeness is not a static state” [citation], and a case that presents a true controversy at its inception becomes moot “‘if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character’” [citation].’” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573),” as cited in Fairview Valley Fire, Inc. v. California Dept. of Forestry (1-9-2015; D065971) __ Cal.App.4th __, at slip opn., p. 13.

In a closely analogous situation, the First District discussed ripeness in Powell v. County of Humboldt (2014) 222 Cal.App.4th 1424. The Powells challenged the constitutionality of a county general plan requirement that they provide an aircraft overflight easement as a condition for obtaining a building permit to make minor alterations to their residence as an unlawful taking of property. “With respect to the related issue of ripeness, we believe the correspondence between the Powells' counsel and the County sufficiently established a final, definitive decision by the County that no permit would be issued without the easement. [fn.] No more was required to satisfy the ripeness requirement. (County of Alameda v. Superior Court (2005) 133 Cal.App.4th 558, 567; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 325).” (222 Cal.App.4th at pp. 1434-1435.) Here, too, the City has had a number of opportunities to backpedal and fix or redo its approach but adamantly refuses to do so. It is time for judicial review.

  1. No Harm Is Done By A Short Court-Ordered Project Delay

Code of Civil Procedure section 526 (a) provides that an injunction may be granted when the plaintiff “is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually” or if it “appears” that “that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” Thus, action need not await final action or the brink of a contemplated event but one may intercede when action is “threat[ened]” or the other party is “about to do” an act in violation of plaintiff’s rights.

Section 527 (c) provides a TRO may be granted with or without notice to the opposing side. Two conditions must be met if no notice is provided. Here, notice was given via email and phone message. When there has not been notice, the court is limited to granting a TRO for between 15-22 days. That restriction does not apply here.

Respondents/defendants are aware that funding may be delayed up to three years before it is lost and the application expires. Indeed, City’s has publicly indicated that “[a] location substitution does not impact the awarded CDBG grant funds” but “if a new location is not secured, such that grant funds are expended before the next CDBG grant cycle, the City will be unable to meet the CDBG ‘50% expenditure rule’ and will be precluded from applying as planned in the 2016 grant cycle.” (Agenda Item Summary [January 12, 2005], p. 3) Consequently, the City would need to draw on the grant by the end of 2015 in order to qualify to apply in January 2016 for additional funds for other projects. A less fast-tracked approach is needed for this project and a restraining order might produce such re-evaluation by the parties.

Further, counsel was notified as these papers were being drawn up, that the City’s response will be to demur to the complaint and not address any of these issues. Counsel has been told that the City will set it for hearing on April 26, 2015. Assuming these representations are accurate, a TRO allows for the setting of an orderly injunction hearing on the same date or prior thereto.

VII. No Bond Is Required For Tro, Only For An Injunction

When "granting an injunction," the court retains inherent common law power to waive the bond or undertaking requirement of Code of Civil Procedure section 529. (Conover v. Hall (1974) 11 Cal.3d 842, 852-853.) Unless the court decides to do that instead of granting a TRO, no bond is required. If the court issues an injunction, the amount of any bond should be nominal.

This action is brought by a group of individuals having no private gain and seeking merely to enforce local and state laws. As such they are acting as a private attorney general rather than in their own self-interest.

Case law pertaining to enforcement of NEPA and CEQA should, by analogy, guide this Court. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 261.) Like CEQA, the NEPA encourages enforcement of its provisions. (42 U.S.C. sec. 4331(a).) Despite a mandatory-sounding NEPA bond requirement, federal courts have recognized that strict application would contravene NEPA policy to encourage private enforcement. For example, in Wisconsin Heritages, Inc. v. Harris (E.D. Wisc. 1979) 476 F.Supp. 300, plaintiff successfully applied for an injunction and defendant in turn requested a substantial bond. Denying the bond request, the court noted that plaintiff -- a non-profit group with no financial interest in the outcome of the suit -- would be improperly deterred, which deterrence "would contravene Congress' intention that groups such as the plaintiff bring actions to aid in the enforcement of national environmental policy." (Id. at p. 302; accord, Marbled Murrelet v. Babbitt (N.D. Cal. 1995) 880 F.Supp 1343, 1345 [bond not required]; Natural Resources Defense Council v. Morton (D.D.C. 1971) 337 F.Supp. 167, 168-169 ["[R]equirement of more than a nominal amount as security would...stifle the intent of the act."].)

The California legislature made clear that citizen-enforcement of environmental laws has always been a prime component of such laws. (Pub. Res. Code, secs. 21000, 21001.) Public Resources Code section 21000 provides: "Every citizen has a responsibility to contribute to the preservation and enhancement of the environment." California has further chosen to encourage such activism by enacting a private attorney general statute contained in Code of Civil Procedure section 1021.5. And California courts have consistently construed the standing requirement for CEQA litigation as being relaxed and expansive to further environmental law enforcement. (See, for example, Bozung v. LAFCO (1975) 13 Cal.3d 263, 272.) Thus, imposition of prohibitive bond only serves to frustrate the clear legislative policy and make attainment of injunctive relief impossible.

Imposing a substantial bond not only discourages public interest litigation but it sends a foreboding message to citizens and citizen groups who seek only to protect the "common" and greater communal good. Any bond other than a nominal one could "effectively deny access to judicial review" or "close the courthouse door in public interest litigation by imposing a burdensome security requirement on plaintiffs who otherwise have standing" to bring suit. (People ex rel. Van De Kamp v. Tahoe Regional Plan (9th Cir. 1985) 766 F.2d 1319, 1325.)

Dated: March 23, 2015

Rodney Jones, Attorney at Law, Mendocino

* * *

[1] To be found at http://city.fortbragg.com/491/Homeless-Services-Facility. It prominently displays a photograph of the OCH and states, in part, “On January 12, 2015, the Fort Bragg City Council adopted a Resolution approving the use of 2014 Community Development Block Grant (CDBG) funds to acquire the former Old Coast Hotel. The property will accommodate a variety of homeless and mental health services including transitional housing.”

[2] MCHC has refused to divulge the extent of its due diligence in searching for the most appropriate site that will maximize housing upon the spending of public funds. Consequently, this information and other relevant material is being sought from the City of Fort Bragg by a written Public Records Act request that was hand-delivered to the City’s offices on March 20, 2015. The additional material sought includes any environmental initial study or similar document supporting the assertion that the proposed use is consistent with the Inland Use and Development Code and information about whether City staff did or did not apply for a technical study grant from CDBG prior to submitting the application for funding pursuant to Resolution No. 3697-2014 or amendments made to that application. Such technical grants are common devices used by grantees and encouraged by CDBG to insure that major grant applications are sound on arrival at the state’s offices.

* * *

THE TORTURE NEVER STOPS

Flies all green and buzzin'

In this dungeon of despair

Prisoners grumblin'

Piss their clothes

Scratch their matted hair

A tiny light from a window-hole

A hundred yards away

Is all they ever get to know

'Bout the regular life in the day

 

And it stinks so bad the stones been chokin'

Weepin' greenish drops

In the room where the giant fire puffer works

And the torture never stops

The torture never stops

 

Slime and rot and rats and snot and

Vomit on the floor

Fifty ugly soldier men

Holdin' spears by the iron door

Knives and spikes and guns and the likes

Of every tool of pain

And a sinister midget with a bucket and a mop

Where the blood goes down the drain

 

And it stinks so bad the stones been chokin'

Weepin' greenish drops

In the den where the giant fire puffer works

And the torture never stops

The torture never stops

 

Flies all green and buzzin'

In his dungeon of despair

An evil prince eats a steamin' pig

In a chamber right near there

He eats the snouts and the trotters first

The loins and the groins is then dispersed

His carvin' style is well rehearsed

He stands and shouts

All men be cursed!

All men be cursed!

And disagree, well no one durst

He's the best of course of all the worst

Some wrong been done

He done it first

 

And he stinks so bad his bones been chokin'

Weepin' greenish drops

In the night of the iron sausage

Where the torture never stops

The torture never stops

 

Flies all green and buzzin'

In his dungeon of despair

Who are all those people

That is shut away down there

Are they crazy?

Are they sainted?

Are they zeroes someone painted?

That has never been explained

Since at first it was created

But a dungeon like a sin

Requires naught but lockin' in

Of everything that's ever been

Could be a her

But it's probly a him

That's what's the deal we're dealin' in

— Frank Zappa

* * *

FRAIDY CATS

From an essay by Judith Shulevitz in the NY Times (In College and Hiding From Scary Ideas):

...I’m old enough to remember a time when college students objected to providing a platform to certain speakers because they were deemed politically unacceptable. Now students worry whether acts of speech or pieces of writing may put them in emotional peril. Two weeks ago, students at Northwestern University marched to protest an article by Laura Kipnis, a professor in the university’s School of Communication. Professor Kipnis had criticized — O.K., ridiculed — what she called the sexual paranoia pervading campus life. The protesters carried mattresses and demanded that the administration condemn the essay. One student complained that Professor Kipnis was “erasing the very traumatic experience” of victims who spoke out. An organizer of the demonstration said, “we need to be setting aside spaces to talk” about “victim-blaming.”

Last Wednesday, Northwestern’s president, Morton O. Schapiro, wrote an op-ed article in The Wall Street Journal affirming his commitment to academic freedom. But plenty of others at universities are willing to dignify students’ fears, citing threats to their stability as reasons to cancel debates, dis-invite commencement speakers and apologize for so-called mistakes.

...while keeping college-level discussions “safe” may feel good to the hypersensitive, it’s bad for them and for everyone else. People ought to go to college to sharpen their wits and broaden their field of vision. Shield them from unfamiliar ideas, and they’ll never learn the discipline of seeing the world as other people see it. They’ll be unprepared for the social and intellectual headwinds that will hit them as soon as they step off the campuses whose climates they have so carefully controlled. What will they do when they hear opinions they’ve learned to shrink from? If they want to change the world, how will they learn to persuade people to join them?

Only a few of the students want stronger anti-hate-speech codes. Mostly they ask for things like mandatory training sessions and stricter enforcement of existing rules. Still, it’s disconcerting to see students clamor for a kind of intrusive supervision that would have outraged students a few generations ago. But those were hardier souls. Now students’ needs are anticipated by a small army of service professionals — mental health counselors, student-life deans and the like. This new bureaucracy may be exacerbating students’ “self-infantilization,” as Judith Shapiro, the former president of Barnard College, suggested in an essay for Inside Higher Ed.

But why are students so eager to self-infantilize? Their parents should probably share the blame. Eric Posner, a professor at the University of Chicago Law School, wrote on Slate last month that although universities cosset students more than they used to, that’s what they have to do, because today’s undergraduates are more puerile than their predecessors. “Perhaps overprogrammed children engineered to the specifications of college admissions offices no longer experience the risks and challenges that breed maturity,” he wrote. But “if college students are children, then they should be protected like children”...

...A few weeks ago, Zineb El Rhazoui, a journalist at Charlie Hebdo, spoke at the University of Chicago, protected by the security guards she has traveled with since supporters of the Islamic State issued death threats against her. During the question-and-answer period, a Muslim student stood up to object to the newspaper’s apparent disrespect for Muslims and to express her dislike of the phrase “I am Charlie.”

Ms. El Rhazoui replied, somewhat irritably, “Being Charlie Hebdo means to die because of a drawing,” and not everyone has the guts to do that (although she didn’t use the word guts). She lives under constant threat, Ms. El Rhazoui said. The student answered that she felt threatened, too.

A few days later, a guest editorialist in the student newspaper took Ms. El Rhazoui to task. She had failed to ensure “that others felt safe enough to express dissenting opinions.” Ms. El Rhazoui’s “relative position of power,” the writer continued, had granted her a “free pass to make condescending attacks on a member of the university.” In a letter to the editor, the president and the vice president of the University of Chicago French Club, which had sponsored the talk, shot back, saying, “El Rhazoui is an immigrant, a woman, Arab, a human-rights activist who has known exile, and a journalist living in very real fear of death. She was invited to speak precisely because her right to do so is, quite literally, under threat.”

You’d be hard-pressed to avoid the conclusion that the student and her defender had burrowed so deep inside their cocoons, were so overcome by their own fragility, that they couldn’t see that it was Ms. El Rhazoui who was in need of a safer space.

* * *

PD, WATER RIGHTS NO LONGER "VOLUNTARY"

Dear AVA,

Using the word "voluntary" instead of "rights" is how they are framing it. Wish someone would inform all what is happening on this most critical of issues of our lifetimes. This follows exactly what the state said they were going to do when passing the 3 groundwater legislation bills I wrote about in my article I submitted to you. “Monitoring and conserving groundwater is no longer going to be voluntary," said Jay Jasperse, chief engineer and director of groundwater management for the Sonoma County Water Agency. "Some people were saying they’re mad, that it infringes on private property rights and water rights, but on the other hand, we’ve also heard from people who are saying it’s about time to regulate groundwater.”

http://www.pressdemocrat.com/news/3658707-181/sonoma-county-gets-set-to

Jamie Lee

Philo

* * *

HOW CHRIS BORLAND REFRAMED THE FOOTBALL DEBATE

by Dave Zirin

Borland
Borland

The news that budding football star Chris Borland left the NFL on basic health and safety grounds, is still reverberating, and not just in the sports world. On Sunday, Borland appeared on CBS’s Face the Nation and said that he will be returning most of his original signing bonus to the 49ers. He also responded to the league office’s reaction to his decision, which was that “the game has never been safer.” Borland said, "I think football is inherently dangerous and that'll never change so long as we have football. Talking about the culture of safety is really irrelevant."

He spoke about his passion for the “visceral” violence of the sport but also said, "That doesn't mean football players are pieces of meat. I think the most important people to convey that message to is the football player himself. You're not a commodity, you're a person."

Borland’s decision to leave the game has had major ramifications. Most critically, he has reframed the debate about tackle football from the one pushed by so many sports-radio time-fillers and right wing radio jocks: That what we have is a fight between people who love the game and mollycoddled commie femi-nazis who want to bubble-wrap our children and then ban the sport. Borland has moved the discussion toward what the real debate actually is: On one side, there are people who believe that the NFL should be transparent about the health risks that come with the game, especially as they are now running football clinics around the country for children; and on the other side, we have a multi-billion dollar corporation obfuscating the actual dangers, relying instead on PR-meisters like Frank Luntz to come up with sound bites and action-plans to convince the public that all is well, and it is safe for your children to come out and play.

Borland has been able to reframe this debate by rooting his decision in very direct personal terms. This on its own has started a political dialogue about the league without looking like he is in any way “grandstanding” or looking for the spotlight. He has done this with purpose. In attempting to figure out how he was going to make and then announce this decision, Borland spoke to many both inside and outside the game, but one is particularly fascinating especially for those who know their political sports history: Dave Meggyesy. The one-time Cardinals linebacker played in the 1960s and then like Borland, became part of that tiny group of players who walked away from the sport while still healthy and in demand. Meggyesy left not over health concerns but because he believed that the league’s violence made the country more desensitized to the war in Vietnam, which he vehemently opposed. In 1970 Meggyesy wrote and published the classic sports memoir, Out of Their League and went on to become West Coast Director of the National Football League Players' Association.

I spoke to Meggyesy this week. He told me that they first met after Meggyesy gave a lecture in one of Borland's history classes at The University of Wisconsin. A group went out to dinner and Meggyesy found him to be "a very sharp, good guy and a person who was really looking at the game: mainly what he would need to succeed in the NFL.”

Before Borland made this decision, Meggyesy and he spoke again. As Meggyesy described it, “We had some email communication back and forth over the past year. Over the phone we've talked a couple of times and at one point, he asked me if I knew how to connect him up with the Fainaru brothers, who wrote the book League of Denial that showed how the league has spent decades basically denying that there's any connection or relationship between head trauma and CTE (chronic traumatic encephalopathy, a debilitating brain disease). He was, at that point, in the research phase. I also talked to some friends that connected him to some neuroscientists who are researching this and getting a real good picture of what is going on out there. He really did his homework and when he was done I don’t think he believed he could trust the league to give him the straight skinny on brain injuries. When we talked about a month ago, he told me he had made the decision, and because of these neurological concerns he was going to walk. He of course, asked me to keep it quiet — and I did — and wanted to know what my opinion was. I said I thought it was his decision, but it certainly made a lot of sense. I also said that how you leave the game is very important. I said, ‘If you are able to raise the question of the game’s safety for parents and concerned people, that would be a very important thing to do.’ And my sense of what he's done, the way he did leave the game, clearly did raise that question. He’s done it with a great deal of integrity, a great deal of intelligence, and that’s why a lot of players have supported him.”

I asked Meggyesy if he believed we should view Borland’s decision as a personal or political statement. “Well, it's kind of how you define political,” he said. “I think it's definitely personal, but I think that Chris is a person who has a larger social conscience. So in the sense of it being political, in the sense of moving the larger social consciousness in a positive direction, yes, I think he basically did that. And he's a kind of guy who thinks in those terms. He gets that it's not just about him; it's about what can have a positive impact and move things in a positive direction. I think that really did happen.”

As impressed as Meggyesy was with Chris Borland, he was disgusted beyond words with the response to Borland by the NFL and their immediate pivot toward saying that “the sport has never been safer” as well as their pointing to their own study that states, “concussions are down 25% over the last three years.”

Meggyesy said, “Oh, you shouldn't take those statistics seriously at all. Of course, the League is not going to support him in this. Of course they're going to try to say football's safe. Well, football's not safe. They talk about concussions when what we're really talking about is brain damage. If you play this game, you're going to walk away damaged. That’s why Chris Borland who loves this game, who was ready to star this season, left.”

That last point is what gives the NFL ownership night-sweats above all else. Chris Borland had a golden opportunity at football stardom. But he looked at the NFL Dream, then looked at reports on brain injuries, and decided it just wasn’t worth it. He won’t be the last.

[The interview with Dave Meggyesy was edited down strictly for flow.]

[Dave Zirin is the author of Brazil’s Dance with the Devil. Contact him at edgeofsports@gmail.com]

PS. Thanks to Dave Meggyesy whose words about Chris Borland animate this article. Everyone reading this should buy his 1970 book.

* * *

COMMENT OF THE DAY

Early in his sprawling, wry, opinionated, beautifully written memoir Blue Blood, Edward Conlon writes that he laughs a little whenever editorials denounce police power. To a patrolman, he says, the job doesn’t seem very powerful. Charged to embody lofty ideals, cops are jerked around by politicians, superiors and just about everyone else; they are mistrusted from within and without. He might have spent ”hours on a frozen rooftop, watching below,” only to have a supervisor on rounds ”reach out and feel my shield, to see if it was cold to the touch.” When police officers are sick at home, he notes, they have to call for permission to leave the house, and check in again when they return. Though vested with the power to use deadly force, cops have been treated like schoolchildren. These contradictions, Conlon says, have led many New York City police officers ”to develop a decidedly ironic point of view.” And it’s this, he maintains, that best explains the department’s ”blue wall of silence”: ”It’s not so much that cops don’t want to talk, it’s that they can barely begin to explain.”

— Ted Conover

* * *

GLAD TO SEE YOU?

by Edward Conlon

When I retired from the NYPD in 2011, it brought to an end 104 years of my family serving in law enforcement in New York, which began with my great-grandfather in 1907. I hope that by offering a few observations on crimes, cops, community and culture that it may be of service in the national discussion of these issues. The views I express here are my own.

There is an exercise that I have seen a number of times in police training in which the instructor sets up by calling out a number of Black and White officers from the audience, all of whom are in civilian clothes. First, the instructor asks the Black officer to put his hands up against the wall and for two White officers to stand on either side of him. He then asked the audience, what do we have here? The answer usually comes back quick and casual: an arrest or a stop. The instructor then reverses the positions with a White officer against the wall flanked by two Black officers. Now what do we have? There is usually hesitant, nervous laughter as all are reluctant to say a mugging.

There is a lesson, of course, in the power and danger of stereotypes, but I would always look around at that point to see the faces of the officers, Black, White or Hispanic, to see whether there seemed to be any difference in the reactions. They tended to be the same across the color line; a little chastened, but not much. It is a reminder to be careful not to jump to conclusions, rather than a repudiation of a lifetime of personal and professional assumptions.

In my experience, in that classroom and outside of it, cops tend to think like other cops regardless of ethnicity. Decades of studies have borne this out, from the Kerner Commission onwards. Residents of minority communities have not reported significant differences how they are treated by Black police officers or White. In Kerner, Black support for increasing the diversity of police departments was seen as a matter of economic opportunity. There was no expectations that relations would necessarily be improved.

Studies of cops of different races have shown some variety in their attitudes. Whites tend to have a more generalized view of people living in the ghetto, Blacks a more nuanced one, but the correlation between attitude and behavior is weak, even inverse. Black officers were more likely to use force against suspects of their own race and faster to arrest them. In the major cities that have had majority-minority police officer — forces for a generation, Detroit, Washington, Atlanta, Miami, police-community relations are not immune to conflict and upheaval.

The history of race and racial discord in this country has largely been irrational, and I have always been surprised to see where race mattered and where it didn't in policing. Where I worked in the South Bronx is overwhelmingly Black and Hispanic with exceedingly high rates of poverty. As a beat cop, the most inspiring and surprising revelation was seeing how many people in the projects were happy to see me. In the middle class or suburban neighborhood, cops are notional in a sense, a kind of insurance policy that most people won't really need. In the poor neighborhood, a cop is routinely and vitally necessary. Older people, families, men and women making their way to and from work knew that they wouldn't be bothered by troublemakers when I was around. Confrontations with younger guys, mostly in groups, beginning in their teen years and going on through their 20's and beyond if they were unemployed, were commonplace, too. But whether the interaction was grateful or hostile race didn't seem to factor much in ordinary workdays.

In my narcotics unit, which was equally mixed between White, Black and Hispanic cops, we engaged in racial profiling with enthusiasm. The arrival of White faces on our corners and streets in our tenements and projects almost invariably meant that they were there to buy crack and heroin. They were easy pickings. We called them “strays,” as in stray dogs, because they often came over to us when we called them. And I will never forget listening to a wiretap of a drug dealer complaining about the racism of a White cop who stopped him in the lobby to ask him what he was doing there. I could see if I am some young thug selling drugs, he said. His indignation barely faded when he went on to say how lucky he was to have just dropped off his 400 grams of cocaine.

As a detective the best you can hope for is that only half the people you meet wish they had never seen you. The most routinely dispiriting part of my job was not the homicides, not even the baby autopsies. What was awful was the nonfatal shootings, most of which involved me begging young Black and Hispanic men to tell me who shot them, sometimes for weeks and months at a time. I have lost count of the number, and I still can't believe the reasons for the gunfire. The gang shootings and the drug shootings made sense compared to the shootings over dirty looks, accidental brushes on the sidewalk, rumors of insults, and brawls where no one was quite sure how they started.

Quite a few of the victims were thugs, to put it bluntly, who had made other kids bleed before and would again as soon as they got out of the hospital, but many were not. They were kids who had never been arrested, church-work-and-school kids with church-work-and-school mothers crying at their bedsides. They couldn't tell on their idiot friends who may have helped instigate a conflict, which was frustrating, or they couldn't be seen as cooperating with the police under any circumstances, which was heartbreaking. Sometimes there was fear of retaliation, reasonable or not, but quite often reflected a kind of moral position, a selective form of civil disobedience. It is a catastrophic attitude.

Gun violence in America is, in effect, a segregated phenomenon. African Americans comprise approximately one-eighth of the population of this country.

Last year 6,000 Black people were murdered in the United States, mostly men, mostly young, mostly by guns, mostly by killers who can be described exactly the same way. The casualty count is as if there were two 9/11s every year for Black people. I don't know if it makes anyone feel better to point out that 20 years ago it was almost twice as bad.

Very quickly, the practice of stop, question and frisk has been criticized in New York both because of the disparate impact of the people stopped, and it has been held that the low rate of arrests or weapon recovery — 6% of arrests, about 1% with weapons recovery — shows its failure. I think it has changed the way people carry guns. A drug dealer on the corner used to have his gun in his waistband. If somebody stepped on his toe, or he saw a rival, that was a 2-second decision from the insult to the act. Now, because the police have been harassing these guys for a generation in New York, that gun is now on a rooftop, or it is in a bedroom, and the decision to pull the trigger is now 10 or 15 minutes, and tempers can cool off, and people can walk away. So that practice has, I think, saved lives in New York City.

— Edward Conlon (Congressional testimony)

* * *

ON-LINE COMMENT OF THE DAY

News from the Southern front…
I was invited to a garden party this weekend in my little part of rural north central Florida at an acquaintance’s home on ten acres. At the small risk of offending any of the other ‘partiers’ (small chance of ANY of them reading this blog), I thought I’d share a few candid observations. 
I was first and foremost ridiculously conspicuous in my body type compared to EVERY other guest, save one. I am 5’10” and weigh about 170. Not just overweight were the 20 or so other adult guests, but clinically obese, and most in their 30’s and 40’s. I bought a green salad with lots of good stuff in it, which went largely untouched. Most of the other fare was some variation of cheesey, creamy, casserol’y carb, and plenty of grilled meats, cake, and HFCS laden soft drink of some type or other, many of them “diet” (which I suppose, is the sum total of effort of concession for the participants to address aforementioned obesity). Oh, and lot’s ‘o cake and deserts too! 
There were 3 unwed mothers, with unruly babes running about (not out of the ordinary…I like kids), that were being actively indoctrinated on the Mac ‘n cheese/soft drink road to obesity. I later learned that all 3 were living in their parents homes, and on some form of govt. assistance for single parents. One was on SSDI, although it was unclear what said ‘disability’ was, other than “too fat to work”.
 I witnessed about 6 or so of the guests, in a postprandial bliss, proudly comparing their latest ink masterpieces with one another. Hey, if you’ve got a bunch of excess “canvas” due to an ever expanding girth, you oughtta put it to SOME use, right!?
 There was not much conversation that could even be lightly construed as stimulating on the evening. Even an attempted foray into local politics was met with mostly blank stare and silence. I finally ended up chatting some gardening talk with the father of one of the attendees who was dragged along kind of as an afterthought by his daughter, I think because he was recently a widower. He was 82, and from New England. It turned out that he was actually more awake and aware, by far, than anyone else. A kid during WWII, he remembered well a different era. An interesting evening of insight…to be sure. Oh, and lo and behold, there were a few tools missing from the open bed of my pickup truck upon inspection in the morning…I wonder where they went?

It’s more than mildly concerning, my friends, even out here in the hinterlands of rural America. The US/Michael Brown analogy is a fabulous one, and certainly crosses all strata of race, demographic, and geography. I have no answers, only observations.

* * *

REP. HUFFMAN ANNOUNCES DEPARTMENT OF VETERANS AFFAIRS POLICY CHANGE—WILL IMPROVE ACCESS TO HEALTH CARE RESOURCES FOR RURAL NORTH COAST VETERANS

Huffman: “On behalf of more than 1,700 veterans, I thank Secretary McDonald for helping veterans on the North Coast get the health care they deserve”

WASHINGTON, D.C.—Congressman Jared Huffman (D-San Rafael) today announced that the Department of Veterans Affairs (VA) will make a change he recommended to improve access to health care for veterans on the rural North Coast. After Huffman sent a letter urging a change to the Veterans Choice Program to VA Secretary Robert A. McDonald earlier this year, VA has announced it will change the calculation used to determine eligibility under the program, thus allowing many veterans on the North Coast to seek timely care from local, private medical providers.

Prior to the change, the Veterans Choice Program allowed veterans living more than 40 miles “as the crow flies” from the nearest VA medical facility to seek care from local, private medical providers. However, veterans living in a number of localities in Humboldt, Trinity, Mendocino, and Sonoma counties, although they technically reside within 40 miles of the nearest VA medical facility, were required to travel significantly farther due to the winding and indirect nature of many rural roads on the North Coast, making them ineligible for the new program. VA has announced that the calculation used to determine the distance between a Veteran’s residence and the nearest VA medical facility will change from a straight line distance to driving distance. This change is estimated to double the number of Veterans eligible for the program.

“Many of the veterans I represent on the North Coast were deemed ineligible for the Veterans Choice Program simply because of the mountainous nature of our rural region, leaving them unable to access medical care without driving upwards of one and a half hours,” Huffman said. “On behalf of more than 1,700 veterans who live in these areas, I thank Secretary McDonald for helping veterans on the North Coast get the health care they deserve from local, private medical providers.”

In his previous letter, Huffman asked Secretary McDonald to reclassify the following localities as “geographically inaccessible,” which would automatically qualify resident veterans for access to local, private care paid for by the Veterans Health Administration:

Willow Creek in Humboldt County;

Junction City and Burnt Ranch in Trinity County;

Fort Bragg, Mendocino, Gualala, and Point Arena in Mendocino County;

Annapolis, Sea Ranch, and Stewart’s Point in Sonoma County

A short video with instructions on how to sign up for the Veterans Choice program can be viewed here.

Huffman’s January 13 letter to Secretary McDonald can be found below:

January 13, 2015

Secretary Robert A. McDonald
Department of Veteran’s Affairs
810 Vermont Avenue, NW
Washington, DC 20420

Dear Secretary McDonald,

Thank you for the hard work you are doing on behalf of veterans across the country in implementing the VA Choice Act. I am writing on behalf of my constituents living in the rural counties of Humboldt, Trinity, Mendocino, and Sonoma who should fall under the category of “geographically inaccessible” and require your authority for the classification.

The towns of Willow Creek in Humboldt County; Junction City and Burnt Ranch in Trinity County; Fort Bragg, Mendocino, Gualala, and Point Arena in Mendocino County; and Annapolis, Sea Ranch, and Stewart’s Point in Sonoma County are all within 40 miles of the nearest VA medical facility. However, due to the mountainous nature of our rural region, the driving mileage for these locations is anywhere from 50-80 miles via actual roads, and the drive time is upwards of one and a half hours. These communities are all located along Highway 299 and Highway 1, which can be treacherous, especially in the winter.

On behalf of more than 1,700 veterans who live in these areas, I request that you designate these localities as “geographically inaccessible” and make this group eligible for the Veteran’s Choice program.

Thank you for your consideration on this matter. I look forward to your response.

Sincerely,

Jared Huffman

Member of Congress

* * *

IMPACTS OF SURFACE WATER DIVERSIONS for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds

Scott Bauer , Jennifer Olson , Adam Cockrill, Michael van Hattem, Linda Miller, Margaret Tauzer, Gordon Leppig

Abstract

Marijuana (Cannabis sativa L.) cultivation has proliferated in northwestern California since at least the mid-1990s. The environmental impacts associated with marijuana cultivation appear substantial, yet have been difficult to quantify, in part because cultivation is clandestine and often occurs on private property. To evaluate the impacts of water diversions at a watershed scale, we interpreted high-resolution aerial imagery to estimate the number of marijuana plants being cultivated in four watersheds in northwestern California, USA. Low-altitude aircraft flights and search warrants executed with law enforcement at cultivation sites in the region helped to validate assumptions used in aerial imagery interpretation. We estimated the water demand of marijuana irrigation and the potential effects water diversions could have on stream flow in the study watersheds. Our results indicate that water demand for marijuana cultivation has the potential to divert substantial portions of streamflow in the study watersheds, with an estimated flow reduction of up to 23% of the annual seven-day low flow in the least impacted of the study watersheds. Estimates from the other study watersheds indicate that water demand for marijuana cultivation exceeds streamflow during the low-flow period. In the most impacted study watersheds, diminished streamflow is likely to have lethal or sub-lethal effects on state-and federally-listed salmon and steelhead trout and to cause further decline of sensitive amphibian species.

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016#abstract0.

Devon Jones

Executive Director

Mendocino County Farm Bureau

* * *

THE POCKETS OF HATRED spread across America: California has the most hate groups, followed by Florida and New York

by Zoe Szathmary

California had more active hate groups than any other state last year, according to the Southern Poverty Law Center (SPLC).

The non-profit has published an interactive 'Hate Map' showing hate group figures for all 50 states and the District of Columbia in 2014.

According to the findings, California has 57 such groups, followed by Florida with 50, New York with 44, New Jersey with 40, and Pennsylvania with 38.

Rounding out the top five were Texas with 36 hate groups, Tennessee with 29, Georgia with 28, and Virginia and Ohio tied with 27 each.

Hawaii and Alaska were the only states to not have any hate groups, according to the SPLC.

The organization said on its website 'All hate groups have beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics.

'This list was compiled using hate group publications and websites, citizen and law enforcement reports, field sources and news reports.

'Websites appearing to be merely the work of a single individual, rather than the publication of a group, are not included in this list,' the organization wrote. 'Listing here does not imply a group advocates or engages in violence or other criminal activity.'

Nationally, the SPLC said in its 'The Year in Hate and Extremism' report, which was published online this spring, that there were a total 784 active hate groups in the US.

The non-profit said there were 72 Ku Klux Klan groups, 142 neo-Nazi groups, 115 White Nationalist groups, 119 racist skinhead groups, 21 Christian identity groups, 37 neo-confederate groups, 113 black separatist groups, and 165 general hate groups.

The SPLC said the 'annual count found that hate groups declined by 17% between 2013 and 2014, from 939 to 784 groups, bringing that number to its lowest level since 2005.'

(Courtesy, the London Daily Mail)

* * *

Mengs

* * *

CONCERT IN POINT CABRILLO LIGHTHOUSE

April 23rd, a Thursday - Doors open at 7:00, Starts at 7:30

Cassie & Maggie MacDonald, dynamic Celtic sister duo from Antigonish, Nova Scotia. The rich heritage of their Scottish roots is evident as they fiddle and dance, sing and strum while charming audiences. Tickets $20 in advance through April 19th , $25 after April 19 and that the door if available. Leave a message online at concerts@PointCabrillo.org or via phone 707 937-6123 Cassie and Maggie MacDonald encompass everything you could ask for in a musical act, their talent is only surpassed by the joy with which they so generously share it. Exciting and innovative, they have found the perfect balance between musical integrity and sheer entertainment. While still staying true to their Celtic roots, they explore and test the boundaries of traditional music, bringing a breath of fresh air to the genre with their original compositions and arrangements. Sisters, cohorts and collaborators, Cassie and Maggie have been enchanting audiences far and wide with their infectious energy, driving rhythms and lilting melodies.

http://www.cassieandmaggie.com/home

* * *

NEW VIDEO FROM KMEC Radio -- what public radio can, and should, be

Ray McGovern: Why Obama is scared of CIA Director Brennan

https://www.youtube.com/watch?v=hGayl9uNW4A&feature=iv&src_vid=LJbE5T7DPr0&annotation_id=annotation_1249698187

John Sakowicz

* * *

PUBLIC TOUR OF "IGNITE!" EXHIBIT ON MARCH 31

On Tuesday, March 31st, from 12 to 1:30 pm, the Grace Hudson Museum will offer a guided tour of its new exhibit, "Ignite! The Art of Sustainability." The exhibit presents original artworks by California’s foremost contemporary artists who have long focused their work on issues of the environment and sustainability. The tour will be led by Curator Karen Holmes along with local exhibit artists Linda McDonald and Charles Bello, and is free with Museum admission.

The Grace Hudson Museum is at 431 S. Main St. in Ukiah and is open Wednesday through Saturday from 10 am to 4:30 pm, and Sunday from noon to 4:30 pm. General admission is $4; $10 per family; $3 for students and seniors; free to all on the first Friday of the month; and always free to members. For more information please go to www.gracehudsonmuseum.org or call (707) 467-2836.

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