HOUSING ADVISORY COMMISSION AGENDA

Transcription

1 Housing Advisory Commission HOUSING ADVISORY COMMISSION AGENDA Regular Meeting Thursday, October 5, :00 pm All agenda items are for discussion and possible action. South Berkeley Senior Center 2939 Ellis Street Secretary Amy Davidson Public comment policy: Members of the public may speak on any items on the Agenda and items not on the Agenda during the initial Public Comment period. Members of the public may also comment on any item listed on the agenda as the item is taken up. Members of the public may not speak more than once on any given item. The Chair may limit public comments to 3 minutes or less. 1. Roll Call 2. Agenda Approval 3. Public Comment 4. Approval of the September 8, 2017 Regular Meeting Minutes (Attachment 1) 5. Appointment of Density Bonus Subcommittee All (Attachment 2) 6. Discussion and Adoption of Revisions to the Student Housing Subcommittee Work Plan Matthew Lewis (Attachment 3) 7. Additional Appointments to Student Housing and Moderate Income Subcommittees All 8. Discussion and Possible Action on Recommendations to Update the Smoke-Free Housing Ordinance and/or Associated Implementation Tools Igor Tregub (Attachment 4) 9. Discussion and Possible Action on Automatic Garage Door Opener Recommendation from the Commission on Disabilities Igor Tregub 10. Discussion and Possible Action on Strategies to Increase Funding for Affordable Housing Matthew Lewis 11. Update on Council Items All/Staff a. Recommendation to Endorse AB 74, SB 305, and AB 1157 (September 12, 2017) ( 12_Item_26_Recommendation_to_Endorse.aspx) b. Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street (September 12, 2017) (Attachment 5) c. Automatic Door Openers in Multi-Unit Residential Buildings (October 3, 2017) ( 03_Item_26a_Automatic_Door_Openers.aspx) d. Waiving Permit Fees for Affordable Housing Projects (October 3, 2017) ( 03_Item_03_Expedited_Review_for_Affordable.aspx) (Attachment 6) 12. Announcements / Information Items a. Brown Act Complaint filed by Commissioner Thomas Lord (Attachment 7) 2180 Milvia Street 2nd Floor Berkeley CA Tel TDD: Fax: housing@ci.berkeley.ca.us

2 Housing Advisory Commission Regular Meeting October 5, 2017 Page 2 of Future Items 14. Adjourn Attachments 1. Draft September 8, 2017 Regular Meeting Minutes 2. Igor Tregub, Request to Appoint Density Bonus Subcommittee 3. Matthew Lewis, Revisions to Student Housing Subcommittee Work Plan 4. Igor Tregub, Recommendations to Update the Smoke-Free Housing Ordinance and/or Associated Implementation Tools Information Items 5. Annotated Berkeley City Council Agenda, September 12, 2017, Use of U1 Funds for Property Acquisition at 1001, 1007, and 1011 University Avenue and 1925 Ninth Street 6. Marian Wolfe, Waiving Fees for Affordable Housing Projects 7. Brown Act Complaint filed by Commissioner Thomas Lord 8. Marian Wolfe, Update on Mayor s Housing Task Force 9. Marian Wolfe, Overview of Recently Adopted Housing Laws 10. HAC Roster of Subcommittee Assignments and Work Plan This meeting is being held in a wheelchair accessible location. To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services Specialist at (V) or (TDD) at least three business days before the meeting date. Please refrain from wearing scented products to this meeting. Any writings or documents provided to a majority of the Commission regarding any item on this agenda will be made available for public inspection at the Health, Housing & Community Services Department located at 2180 Milvia Street, 2 nd Floor during regular business hours. Agenda packets and minutes are posted online at: Communications to Berkeley boards, commissions or committees are public record and will become part of the City s electronic records, which are accessible through the City s website. Please note: addresses, names, addresses, and other contact information are not required, but if included in any communication to a City board, commission or committee, will become part of the public record. If you do not want your address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the Secretary of the commission. If you do not want your contact information

3 Housing Advisory Commission Regular Meeting October 5, 2017 Page 3 of 3 included in the public record, please do not include that information in your communication. Please contact the Secretary for further information.

4 HOUSING ADVISORY COMMISSION Regular Meeting Thursday, September 7, 2017 HAC 10/05/2017 Attachment 1 Housing Advisory Commission Time: 7:02 p.m. South Berkeley Senior Center 2939 Ellis Street Berkeley Secretary Amy Davidson, (510) MINUTES 1. Roll Call Present: Luis Amezcua, Xavier Johnson, Matthew Lewis (7:05 p.m.), Thomas Lord, Kieron Slaughter, Igor Tregub, Marian Wolfe, and Amir Wright (substitute for Gissell Vasquez) Absent: Rashi Kesarwani (excused) and Gissell Vasquez (excused) Commissioners in attendance: 8 of 9 Staff Present: Amy Davidson, Kristen Lee, Be Tran, and Mike Uberti Members of the public in attendance: 7 Public Speakers: 4 2. Agenda Approval Action: M/S/C (Amezcua/Wolfe) to approve the agenda. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). 3. Public Comment Four members of the public spoke. Consent Items 4. Approval of June 1, 2017 Special Meeting Minutes Action: M/S/C (Amezcua/Wolfe) to approve the minutes with proposed changes: 1. Correct the meeting start time to reflect actual time started. 2. Include statement that no action was taken. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). 5. Approval of July 6, 2017 Regular Meeting Minutes Action: M/S/C (Amezcua/Wolfe) to approve the minutes. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Tregub, Wolfe, and Wright. Noes: None. Abstain: Slaughter. Absent: Kesarwani (excused) and Vasquez (excused). HAC PAGE 1

5 Housing Advisory Commission Regular Meeting Draft Minutes September 7, 2017 Page 2 of 4 HAC 10/05/2017 Attachment 1 Action Items 6. Meeting Process Action: M/S/C (Johnson/Amezcua) to adopt the following guidelines to the Commission s meeting process with friendly amendments from Chair Tregub: 1. Major agenda items to come through a subcommittee when appropriate and not directly to the Commission. 2. Adopt a standard end time (9 p.m.) and require a simple majority to extend the meeting to 9:30 p.m. If needed, another vote can be taken to extend the meeting to 10 p.m. 3. Introduce a motion as soon as possible for further discussion. 4. Encourage a time limit on each commissioner s comments. Presenter of an item shall get four minutes. The question and answer segment following the presentation of the item has no time limit. In the first round of comments, each commissioner shall receive three minutes. In the subsequent round of discussion, each commissioner shall receive two minutes. 5. Nothing in these guidelines is intended to be in conflict with the HAC s rules as a quasi-judicial body. Vote: Ayes: Amezcua, Johnson, Lewis, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: Lord. Absent: Kesarwani (excused) and Vasquez (excused). 7. Discussion and Adoption of a Work Plan Commissioner Lord withdrew his item (Attachment 5) for consideration. Action: M/S/C (Lewis/Wolfe) to adopt the work plan (Attachment 4). Vote: Ayes: Amezcua, Johnson, Lewis, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: Lord. Absent: Kesarwani (excused) and Vasquez (excused). 8. Discussion and Possible Recommendation on Draft Consolidated Annual Performance Report (CAPER) for HUD Kristen Lee presented and requested comments from HAC. No motion required and no action was taken. 9. Substantial Amendment to the Annual Action Plan for Program Year 2017 to Shift Community Development Block Grant (CDBG) Indirect Costs Action: M/S/C (Lord/Amezcua) to adopt a recommendation that City Council conduct a public hearing on a substantial amendment to the federal Program Year (PY) 2017 Annual Action Plan (AAP) which includes revised allocations of Community Development Block Grant (CDBG) funding and upon conclusion, adopt a Resolution approving revised CDBG funding recommendations for City of Berkeley projects; and authorizing the City Manager to submit the Substantial Amendment to the PY 2016 AAP to the U.S. Department of Housing and Urban Development (HUD). Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez HAC PAGE 2

6 Housing Advisory Commission Regular Meeting Draft Minutes September 7, 2017 Page 3 of 4 HAC 10/05/2017 Attachment 1 (excused). 10. Appointment of Subcommittees: Student Housing, Low Income Housing, Moderate Income Housing, Community Development Block Grant, and Measure U1 The CDBG Subcommittee was appointed for the current CDBG funding cycle. Action A: M/S/C (Lewis/Amezcua) to appoint Commissioners Kesarwani, Lord, and Vasquez to the CDBG Subcommittee. The subcommittee will work with staff to review funding applications this year. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). The Student Housing, Low Income Housing, and Moderate Income Housing Subcomittees were appointed to work on related strategies identified in the Housing Advisory Commission s work plan during the City s current fiscal year, ending no later than June 30, Action B: M/S/C (Lewis/Wright) to appoint Commissioners Johnson, Lewis, Tregub, and Wolfe to the Low Income Subcommittee. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). Action C: M/S/C (Johnson/Wolfe) to appoint Commissioners Lord and Tregub to the Moderate Income Subcommittee. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). Action D: M/S/C (Wolfe/Johnson) to appoint Commissioners Amezcua, Lewis, Slaughter, and Vasquez to the Student Housing Subcommittee. Vote: Ayes: Amezcua, Johnson, Lewis, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: Lord. Absent: Kesarwani (excused) and Vasquez (excused). M/S/C (Lewis/Amezcua) to extend the meeting to 9:30 p.m. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). Action E: M/S/C (Lewis/Wright) to appoint Commissioners Amezcua, Kesarwani, Lewis, Wolfe to the Measure U1 Subcommittee with Chair Tregub serving as the alternate. Within the City s current fiscal year, ending no later than June 30, 2018, this subcommittee: Will develop recommended guidelines for the use of U1 funds; HAC PAGE 3

7 Housing Advisory Commission Regular Meeting Draft Minutes September 7, 2017 Page 4 of 4 HAC 10/05/2017 Attachment 1 Will provide advice for the HAC for Council on anti-displacement programs and affordable housing to be funded with U1; and May discuss specific projects, avoiding overlap with other subcommittees of the HAC. Vote: Ayes: Amezcua, Johnson, Lewis, Lord, Slaughter, Tregub, Wolfe, and Wright. Noes: None. Abstain: None. Absent: Kesarwani (excused) and Vasquez (excused). 11. City Council Referral to HAC: Consideration of an Ordinance to Establish a Waiver of Administrative and Permit Fees for Certain Affordable Housing Projects Action: M/S/F (Amezcua/Lewis) to extend meeting to 10:00 p.m. Vote: Ayes: Amezcua, Johnson, Lewis, and Tregub. Noes: Slaughter and Wolfe. Abstain: Lord and Wright. Absent: Kesarwani (excused) and Vasquez (excused). Meeting adjourned at 9:31 p.m. Approved on DATE, Amy Davidson, Secretary HAC PAGE 4

8 HAC 10/05/2017 Attachment 2 HOUSING ADVISORY COMMISSION 10/5/2017 To: From: Subject: Housing Advisory Commission Chairperson Igor Tregub Request to Appoint Density Bonus Subcommittee RECOMMENDATION Designate a Density Bonus Subcommittee of the Housing Advisory Commission (HAC) and invite the Planning Commission (PC) and Zoning Adjustments Board (ZAB) to designate their own subcommittees to meet concurrently with the HAC s.. FISCAL IMPACTS OF RECOMMENDATION The City density bonus, which the subcommittee will review as part of its charge, could result in potential revenue increases to the Housing Trust Fund depending on the extent to which projects elect the City density bonus and its interaction with other policies such as the Affordable Housing Mitigation Fee. SUMMARY At a HAC meeting on June 4, 2015, the following action were taken: Action: M/S/C Magofna/Abramson to request the Berkeley City Council to formally designate a Joint Density Bonus Subcommittee of the HAC, PC, and ZAB. Vote: Ayes: Abramson, Darrow, Gordon, Magofna, Martinucci, Soto-Vigil, Tregub and Wolfe. Noes: None. Abstain: None. Absent: Drake. However, at the July 14, 2015 meeting the City Council unanimously voted to [t]ake no action regarding a joint subcommittee on the Density Bonus program, and allow the Housing Advisory Commission (HAC), Planning Commission (PC), and Zoning Adjustments Board to collaborate within their existing structures. With the number of density bonus projects that has been considered and approved by ZAB and/or the Council since then and at least one local density bonus proposal a result of a previous City Council referral that is currently being considered, it may be ripe to once again gauge the interest of HAC in considering a City Density Bonus Subcommittee. A Joint Density Bonus Subcommittee was previously appointed by City Council action and held its meetings in the time frame. HAC PAGE 5

9 HAC 10/05/2017 Attachment 2 CURRENT SITUATION AND ITS EFFECTS The state density bonus law (Government Code Section 65915) requires local governments to grant density bonuses of up to a density increase of 35% to projects that provide specified percentage of below-market rate units. The law defines a density bonus as a density increase over the otherwise maximum allowable residential density as of the date of application ( 65915(f)). Maximum allowable residential density in turn, means the density allowed under the zoning ordinance and land use element of the general plan, or if a range of density is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project ( 65915(o)(2)). Thus, in order to calculate the density bonus in any given case, it is necessary to start with the maximum allowable residential density. In Berkeley, most new multi-family housing projects are located in zoning districts that do not have density standards that are applied on a parcel by parcel basis. Therefore, over the years, staff has developed and refined procedures for deriving the maximum allowable density for any density bonus projects. 1 On April 28, 2015, the Berkeley City Council unanimously passed an item, as follows, which was also referred to the HAC and PC: Request that the City Manager draft an ordinance to implement a City density bonus that would serve as an option to the State density bonus. The City density bonus would mirror the State bonus by allowing housing projects (rental units and condominiums) of five or more units to receive a bonus of up to 35% increased density if the project contributes to the supply of affordable housing. For rental projects, the City bonus fee would be $10,000 per unit, in addition to the City s affordable housing mitigation fee, which is currently $20,000 per unit for rental projects. For condominium projects, the City bonus fee would be $10,000 per unit in addition to any affordable housing mitigation fee that the City Council adopts for condominium projects. Rental and condominium projects opting for the City density bonus would pay the $10,000 new fee and the affordable housing mitigation fee on the project s base units, not the density bonus units. The City density bonus fee of $10,000 could be changed by subsequent Council resolution. Projects that already have building permits and are fully entitled for bonus density at the time this ordinance takes effect would be allowed to opt for the City density bonus by paying the fee when the Certificate of Occupancy is issued. After the ordinance is adopted, other future projects would pay the fee when the project s building permit is issued. Request also that the City Manager review the City s Affordable Housing Mitigation Fee ordinance to insure compatibility with the City density bonus and amend if necessary. Request also that the proposed ordinance and any amendment to _ZAB_SR_Density%20Bonus_Complete.pdf HAC PAGE 6

10 HAC 10/05/2017 Attachment 2 the Affordable Housing Mitigation Fee ordinance be reviewed by the Housing Advisory and Planning commissions prior to presentation to the City Council for adoption...the referral to staff will include a request to review adding language related to Project Labor Agreements. Consideration of local concessions and incentives for projects will be considered as part of the referral. 1 BACKGROUND The Berkeley City Council previously established a Joint Subcommittee on Density Bonus, consisting of members of the HAC, PC, and ZAB. The charge of the Subcommittee was to make recommendations to the Council on possible changes to the City s existing density bonus procedures. In the Fall of 2006, recommendations for changes to development standards developed by the Subcommittee and Planning Department staff were brought to the City Council for consideration. In Spring 2007, the Subcommittee made final recommendations on implementation of density bonus law. Planning staff has periodically returned to the HAC, PC, and ZAB to provide a conceptual overview and the procedure it follows to calculate the density bonus in Berkeley projects. The last such presentation to the HAC took place in Calendar Year (CY) A more recent presentation, with revised content, took place at the ZAB on September 14, The content does not appear to be publicly available in electronic form, but a video of the meeting is available at de41. ENVIRONMENTAL SUSTAINABILITY A Density Bonus Subcommittee, as part of its charge, would ensure that proposed zoning changes are consistent with City Climate Action Plan goals supporting increased residential density near transit routes and hubs to reduce greenhouse gas emissions. Additionally, new residential construction is subject to more stringent energy efficiency standards and will therefore assist in reducing per capita greenhouse gas emissions from building energy use. RATIONALE FOR RECOMMENDATION As discussed above, in 2015 the local density bonus item was referred to both the HAC and the PC _- _Regular_Meeting_Annotated_Agenda.aspx %20ZAB%20AGENDA.pdf HAC PAGE 7

11 HAC 10/05/2017 Attachment 2 It has been more than ten years since the completion of the previous Joint Density Bonus Subcommittee s work, and both the housing market in Berkeley and local and state laws that may directly or indirectly affect the application and implementation of the state density bonus have changed since then. This subcommittee could evaluate the state and local density bonus as well as other factors that may affect their application (e.g. the Housing Mitigation Fee, applicable nexus and feasibility studies, the Downtown Area Plan) in that light. HAC PAGE 8

12 HAC 10/05/2017 Attachment 3 From: Matthew Lewis [mailto:mrlewis125@gmail.com] Sent: Tuesday, September 26, :44 PM To: Housing Advisory Commission <HAC@cityofberkeley.info> Subject: Re: Items for HAC Agenda October 5, Add the following items to the Student Housing Subcommittee work plan (from the Student Housing Subcommittee): Master tenancies Site selection How the university finances its housing (e.g. UPP s vs revenue bonds) and privatization of UC Berkeley housing system in general Pressuring the university to force developers to meet the affordability requirements of the city (e.g. mitigation fee/in-lieu units) Develop a separate affordability definition applicable to inclusionary housing to be used in areas near campus so students can live in them. Items already on the HAC-approved work plan: Encourage more student co-ops. Treat the half-mile zone around UC Berkeley as if it were a transit corridor area, i.e., relaxing parking requirements and allowing higher densities. Establish a prohibition against the use of rental units near campus as short term rentals. Establish a dialogue between the City and the University regarding the need for student and faculty housing. Encourage co-ops to maintain year-round affordability requirements. Streamline permitting process for new rental development, if there is an MOU between the developer and the City that the housing will be available for students (and faculty)? Educate students about rent control and Costa Hawkins. HAC PAGE 9

13 HAC 10/05/2017 Attachment 4 HOUSING ADVISORY COMMISSION 10/5/2017 To: From: Subject: Housing Advisory Commission Chairperson Igor Tregub Discussion and Possible Action on Recommendations to Update the Smoke- Free Ordinance and/or Associated Implementation Tools RECOMMENDATION Discuss and take possible action on recommendations from Carol Denney to update the Smoke-Free Housing Ordinance and/or implementation tools associated with it. FISCAL IMPACTS OF RECOMMENDATION Potential costs associated with additional staff time, which may be offset by potential time savings associated with more streamlined tools for filing and receiving complaints. SUMMARY At its September 7, 2017 Housing Advisory Commission (HAC) meeting, commissioners received a letter from Carol Denney, the contents of which are provided below: I deeply respect the work already done to create secondhand smoke protections for people who live in multi-unit housing, but the complaint process, which was convoluted to begin with, has gotten more and more difficult to use. The new complaint form requires the complainant to identify the property landlord and the landlord's address. This information, easily available to those of you at City Hall, is not so easy for tenants to discern. Rent checks are sometimes written to management companies, or to intermediaries, and even asking who owns the property is an intimidating, sometimes lengthy project. Properties often change hands or are cloaked for legal reasons in confounding ways. In addition, there is apparently no complaint system at all anymore for those of us who live in limited equity co-ops; we're informed that our complaints are simply set aside, requests to return them go unanswered, and there is no box we can check or explanation we can offer for our convoluted legal status which will keep us in the complaint pipeline. Complaint forms must be printed out and mailed in, which is just silly in the age of the app. The new state law finally includes marijuana smoke, listed by California's Proposition 65 as a known carcinogen, and unless the City of Berkeley takes some HAC PAGE 10

14 HAC 10/05/2017 Attachment 4 initiative to inform renters and people with shared walls that they are now entitled to protection from tobacco and marijuana smoke, few of them will know their rights. Please, could we take another look at our forms and our process? We need to be more use-friendly so that our efforts to protect people's health are more successful. As the agenda was already set prior to the meeting, the HAC could take no action on this matter at its last meeting. However, it is the intent at the following meeting to discuss and take possible action relative to the contents of Ms. Denney s letter. CURRENT SITUATION AND ITS EFFECTS The Berkeley City Council adopted the Smoke-Free Housing Ordinance in December It regulates second-hand smoke in all multi-unit residences and common areas. As of May 1, 2014, smoking is prohibited in 100% of multi-unit housing with two or more units (i.e., apartments, co-ops, condominiums, common interest developments, etc.). This also includes common areas such as private decks, balconies, and porches of units. Below are resources and materials for property owners and tenants _Public_Health/TobaccoFreeMultiUnitOrdinance.pdf 2 HAC PAGE 11

15 HAC 10/05/2017 Attachment 4 BACKGROUND The HAC was one of the commissions that was asked to provide feedback on proposed variants of the Smoke-Free Housing Ordinance prior to its final adoption by the Berkeley City Council. Additional information and resources is provided here: ENVIRONMENTAL SUSTAINABILITY The allowance of online complaint submissions would likely reduce the use of paper and therefore positively affect environmental sustainability goals. HAC PAGE 12

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17 HAC 10/05/2017 Attachment 6 DATE: October 5, 2017 TO: FROM: RE: Members of the Housing Advisory Commission Marian Wolfe, Vice-Chair Waiving Fees for Affordable Housing Projects One of the agenda items discussed at the last HAC meeting (September 7, 2017) addressed a proposal to waive fees on affordable housing projects. This item was originally submitted to the City Council by Mayor Arreguin, and Councilmembers Hahn and Harrison for discussion at the July 25, 2017 Council Meeting. This item was carried over to the Council meeting held on September 12, We did not take action to approve this proposal, and the City Council is still exploring costs and how these would be covered. One of the main concerns voiced by some councilmembers was the cost to the City of waiving these fees and how the City would cover these costs. (This was also one of the concerns of several HAC members as well.) Instead the Council has referred the proposal to the City Manager s Office to learn more about (1) What waiving these fees would cost the City, and (2) How these costs will be covered. (See the Appendix at the end of this Memo for the actual Council action.) The purpose of this brief memo is to explain to HAC members how planning costs are currently covered. The current process introduces additional complications to the request to waive fees for affordable housing projects. Unlike other jurisdictions (both cities and counties), Berkeley s processing of development applications is not paid for out of General Fund revenues, but through fees paid by the developers. Therefore, if fees are waived for affordable housing projects, the City needs to identify a revenue source likely the General Fund. So, the City will need to identify surplus General Funds to make this work. Unlike fee deferrals, these fees will not be returned to the General Fund at a later date. Until we learn more from the City Manager s office, it is not really possible to know what impact waiving of fees will have on the City s budget. Appendix 1. Direct the City Manager to draft an ordinance establishing automatic waiver of certain administrative, permit, impact and other fees for projects receiving City of Berkeley Housing Trust Fund (HTF) monies and submit a draft within 90 days for Council approval. Fee waivers shall apply to all HTF projects that have not yet been issued a building permit, and should include, but not be limited to: 1 HAC PAGE 14

18 HAC 10/05/2017 Attachment 6 a. Waiver of internal, staff-time-related permit, inspection, and other fees Referred to the City Manager s Office for Analysis. b. Waiver of mitigation, impact, and in-lieu fees. Adopted, but amended to state that fee waiver will be applied unless the fees would be otherwise reimbursed by other non-city of Berkeley sources of funding. c. Notwithstanding the above, fees to cover City out of pocket costs, fees passed-through to other agencies, and fees necessitated by CEQA should not be waived - Referred to the City Manager s Office for Analysis. 2. Direct the City Manager to send a letter to the BUSD Board of Education requesting consideration of an automatic waiver of BUSD School Facility Fees for projects receiving City of Berkeley Housing Trust Funds. Adopted 2 HAC PAGE 15

19 HAC 10/05/2017 Attachment 7 Health Housing and Community Services Department Housing & Community Services Division MEMORANDUM To: From: Housing Advisory Commission Amy Davidson Date: September 28, 2017 Subject: Brown Act Complaint from Commissioner Thomas Lord Commissioner Thomas Lord submitted the attached letter to the Housing Advisory Commission (HAC) demanding curative action regarding alleged violations of the Brown Act. Included with the letter was a copy of a complaint that was simultaneously submitted to the Open Government Commission. The complaint is also attached. The letter was received on September 22, 2017, just a few days prior to the time to publish the agenda for the HAC October meeting. Due to the length of the complaint and the number of allegations made, staff and the Chair and Vice Chair were not able to fully evaluate the concerns raised in the letter and complaint in order to place on the October agenda any recommendations about whether there are actions the HAC can or should take in response to the letter and complaint. Staff will continue to review the documents submitted to determine whether corrective actions are needed. If corrective actions are needed, the recommendations will be appropriately agendized and noticed for a future meeting, whether the next regular meeting or at a special meeting if appropriate. The Open Government Commission will also conduct an independent investigation regarding the allegations. A Vibrant and Healthy Berkeley for All 2180 Milvia Street, 2 nd Floor, Berkeley, CA Tel: TDD: Fax: housing@ci.berkeley.ca.us - HAC PAGE 16

20 September 22, 2017 To: Chair Igor Tregub, Vice Chair Marian Wolfe, Commissioner Luis Amezcua, Commissioner Xavier Johnson, Commissioner Rush Kesarwani, Commissioner Matthew Lewis, Commissioner Thomas Lord, Commissioner Kieron Slaughter, City of Berkeley This letter is to call your attention to what I believe were substantial violations of central provisions of the Ralph M. Brown Act, one which may jeopardize the finality of the actions taken by the Housing Advisory Commission ( HAC ). Briefly stated, the nature of the violations is as follows: At its June 1, 2017 special meeting, the HAC set aside its agenda to hold an openended policy discussion among Commissioners and voted to rank in priority various policy concerns introduced at the meeting. The public did not have the opportunity to comment on the issues that would be discussed. The public did not have the opportunity to put forward alternatives for consideration. Also at the June 1, 2017 special meeting, regular order so devolved that the full commission was chatting freely among themselves about policy concerns, in the presence of but out of earshot of the public who were present. On June 8, 2017, the Vice Chair wrote lobbying , encouraging commissioners to consider various policy ideas she herself had helped to develop. At her direction, the Commission Secretary sent this lobbying to all commissioners. Subsequently, the call for agenda items went out. Collectively, these actions have the effect of a serial meeting of the full commission, without notice to or participation from the public. Between June 8, 2017, and July 6, the Commission executives and Commission Secretary exchanged s with Commissioner Lord concerning his allegation of a possible Brown Act violation. Commissioner Lord proposed means by which to cure and correct the violation. The Commission executives did not, within 30 days, reply with their decision to comply with the demand or refuse it. At its July 6, 2017 regular meeting, remarkably, the HAC again set aside portions of its agenda to, instead, have open ended policy spit-balling discussions among Commissioners. During these discussions commissioners agreed among themselves where the legislative attention of the HAC would be focused in the coming year. The public had no opportunity to comment on the policy proposals put forward nor to offer alternatives. At its September 7, 2017 meeting, the Commission agendized a Discussion and adoption of a work plan. The Commission adopted as its work plan a 1 HAC PAGE 17

21 memo from Vice Chair Wolfe which contains none of the elements of a work plan as defined and directed by the City of Berkeley (Council resolution titled Commission Work Plans adopted on the Consent Calendar by City of Berkeley City Council on July 19, and as reported to the HAC in its own April 6, 2017 agenda packet.) Furthermore, the work plan adopted is the fruits of the unagendized free-for-all discussions and unrecorded voting that took place in June and July. Also at its September 7, 2017 meeting, the Commission exceeded its powers by establishing what are, in the eyes of the Brown Act, standing subcommittees with a broad subject matter jurisdiction. These subcommittees are: the U1 subcommittee, the lower income housing subcommittee, the moderate income housing subcommittee, and the student housing subcommittee. Also at its September 7, 2017 meeting, the Commission adopted meeting process guidelines which the Chair began applying as rules that explicitly discourage Commission referrals except through the improperly formed subcommittees, and that severely limit the possibility of debate or discussion of alternatives at future meetings. The actions taken were not in compliance with the Brown Act because, in part, they occurred as the culmination of a discussion in a de facto closed session at the June special meeting of a matter which the Act does not permit to be discussed in closed session, and, there was no adequate notice to the public on the posted agendas for each of the meetings where the matter acted upon would be discussed, and there was no finding of fact made by the Housing Advisory Commission that urgent action was necessary on a matter unforeseen at the time the agendas were posted. A longer and more thorough presentation of the alleged violations can be found in the attached complaint to the City of Berkeley Open Government Commission. In the event it appears to you that any of the aforementioned conduct of the Housing Advisory Commission did not amount to the taking of action, I call your attention to Section , which defines action taken for the purposes of the Act expansively, i.e. as a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. As you are aware, the Brown Act creates specific agenda obligations for notifying the public with a brief description of each item to be discussed or acted upon, and also creates a legal remedy for illegally taken actions namely, the judicial invalidation of them upon proper findings of fact and conclusions of law. Pursuant to that provision (Government Code Section ), I demand that the Housing Advisory Commission cure and correct the illegally taken action as 2 HAC PAGE 18

22 follows: 1. Rescind the vote to adopt a work plan and, instead, work within the constraints of the Brown Act to adopt a work plan of the form directed by City Council in its July 19, 2016 resolution. 2. Rescind the establishment of the U1 subcommittee, the low income housing subcommittee, the moderate income subcommittee, and the student housing subcommittee. 3. Affirm that the related meeting process guidelines adopted in September are not rules and confer no new powers to the chair. In particular, that the chair may not use these guidelines to impose restrictions on discussion and debate, including prematurely cutting off any Commissioner, nor call for votes to extend starting at 9PM. Nor may the Commission executives treat Commission referrals from any subcommittee preferentially to referrals from other sources in their capacity as presiding officers. As provided by Section , you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to Section , in which case I would also ask the court to order you to pay my seek court costs and reasonable attorney fees in this matter, pursuant to Section Respectfully yours, Thomas Lord cc attorney@cityofberkeley.info 3 HAC PAGE 19

23 Open Government Commission September 20, 2017 To: From: Subject: Open Government Commissioners Commissioner Thomas Lord complaint regarding the Housing Advisory Commission Contents Introduction 3 Overview of allegations 4 Outline of the rest of this complaint 6 Alleged Violations 7 Violations at June 1, 2017 HAC special meeting Allegation Evidence and analysis: Early noticing about this special meeting 8 Evidence and analysis: Noticing of the special meeting itself. 9 Evidence and analysis: Conduct of the special meeting Evidence and analysis: Minutes of the Special Meeting Violation in the form of a serial meeting by on June Allegation Evidence and analysis: from the Vice Chair Violation in response to a Brown Act Complaint Allegation Evidence: My June 8 to the Commission Secretary Evidence: June 8 reply from the Commission Secretary 17 Evidence: June 8 from Chair Tregub Evidence: June 8 in reply to Chair Tregub Evidence: June 9 from Chair Tregub Evidence: June 9 to Chair Tregub Analysis of June s HAC PAGE 20

24 Violations at July 6, 2017 HAC meeting (unagendized discussions and action) Allegation Evidence and analysis: Noticing of the July 6 meeting Evidence and analysis: Conduct of the July 6 meeting Violation at July 6, 2017 HAC meeting (unagendized discussion).. 33 Allegation Evidence and analysis: discussion of a special fund or budget set-aside Public Records Issue at September 6, 2017 HAC meeting (approval of minutes of Special Meeting) Allegation Evidence and analysis: discussion of a minutes from the June special meeting Violation at September 6, 2017 HAC meeting (work plan adoption) 46 Allegations Evidence and analysis: discussion and vote on work plan Violation at September 6, 2017 HAC meeting (formation of standing subcommittees) Allegation Evidence and analysis: subcommittee rules and the Commission s action Brown Act Analysis of the Subcommittees Cure and Correct Demand 65 Prayer for relief from the Open Government Commission 69 Exhibit A: Excerpts of the April 4, 2017 HAC Packet 70 Exhibit B: Agenda Packet for June 1, 2017 HAC Special Meeting 70 Exhibit C: Unmodified Version of page from packet for June 1, 2017 HAC Special meeting 70 Exhibit D: Cover letter from Commission Secretary for modified June 1, 2017 packet 70 2 HAC PAGE 21

25 Exhibit E: Video of the June 1, 2017 special meeting of the HAC 70 Exhibit F: Transcript of Vice Chair s introduction at special meeting 71 Exhibit G: Vice Chair s to the full commission, sent June 8, Exhibit H: Commission Secretary s cover letter for Vice Chair s June 8, Exhibit I: Commissioner Lord s to Commission Secretary, June 8, Exhibit J: Reply to Commissioner Lord s from Commission Secretary, June 8, Exhibit K: Excerpts of July 6, 2017 HAC agenda packet 72 Exhibit L: Published Minutes of the June 1, 2017 HAC special meeting 72 Exhibit M: Audtio Recording of July 6, 2017 HAC regular meeting 72 Exhibit N: Audtio Recording of September 7, 2017 HAC regular meeting 72 Exhibit O: Vice Chair Wolfe s September 7, 2017 work plan memo 72 Introduction In this complaint, I allege that the Housing Advisory Commission (HAC), through a series of related Brown Act violations, has deprived the public of their right to to participate in substantial, determinative Commission discussions of housing policy in Berkeley. 3 HAC PAGE 22

26 These allegations fall within the jurisdiction of the Open Government Commission, in particular its duties as outlined in BMC (A)(1): a. hear complaints by any person concerning alleged noncompliance with this Ordinance, the Brown Act or the Public Records Act, by the City or any of its legislative bodies, officers or employees; b. consider ways to informally resolve those complaints and make recommendations to the Council regarding such complaints; c. seek advice from the City Attorney concerning those complaints; and d. advise the City Council of its opinion, conclusion or recommendation as to any complaint. Overview of allegations Most City Commissions, including the HAC, are directed by City Council to produce an annual work plan containing a mission statement, a declaration of resources needed by the Commission to conduct its work, a description of the activities the Commission will engage in, what those activities will produce as output, and what outcomes the Commission hopes to achieve through these activities. In due order the HAC scheduled a special meeting in June, 2017 to prepare a work plan. At this highly irregular meeting, the acting Chair (Vice Chair Wolfe) set aside the agenda and, instead, had a presenter from an organization called SEEDS lead the Commissioners in a wide ranging discussion about City Housing Policy. In the session, we were instructed that we would be deciding certain housing policy funding questions over the course of a two-part discussion. In doing this, the Commission both engaged in a substantial, unagendized discussion and took formal action on that discussion, depriving the public of adequate notice to participate in a meeting where significant housing policy issues would be discussed. 4 HAC PAGE 23

27 One week after this meeting, the Vice Chair conducted what was, in effect, a serial meeting by among the full Commission. In her , the Vice Chair instructed commissioners to give particular consideration to a list of housing policy ideas from a City Council item. The list was largely developed by a Mayoral task force on housing, of which the HAC Vice Chair is or was a member. During the month of June, after that special meeting, and after receiving the lobbying , I made a complaint to the Commission Secretary and Chair, stating that I believed the Brown Act to have been violated, and offering suggestions to cure the defective process. The Chair and Vice Chair did not cure and correct the violation, nor did they reply to me within 30 days of their decision to take or not take action. At the July meeting, the Vice Chair again led an open-ended, free-form discussion during which Commissioners proposed unagendized housing policies for the City of Berkeley, and gauged one anothers support for various policies. No member of the public, looking at the agenda, could have known that this meeting was the time to weigh in on the topics discussed (indeed, no Commissioner could have either). In the two discussions, none of the policy discussions that took place were agendized. Commissioners brought up, out of the blue, discussed, refined, and gauged mutual support for topics such as making students eligible for low income housing funds controlled by the City, up-zoning certain neighborhoods near BART stations, declaring neighborhoods peripheral to campus to be high priority transit corridors, raising certain City fees, and asking the City to help BUSD build company housing for teachers. In September, the chairs presented a table containing their summary of the earlier unagendized discussions, and the commission voted to adopt that table as a work plan, although it contains none of the elements of a work plan of the sort City Council directed commissions to complete. Also in September, the Commission exceeded its powers by establishing several Brown Act standing subcommittees, each with a broad subject matter jurisdiction and no specific reporting requirement. The policy areas improperly discussed in June and July were partitioned among these subcommittees as a starting point for their agenda. The Chair encouraged these subcommittees to alter their agenda freely, but let the full commission know what 5 HAC PAGE 24

28 changed. The composition of the subcommittees (who is on which), moreover, reflects the discussions in June and July the unagendized gauging of mutual support for this and that policy idea became reified as standing subcommittee memberships. Also in September, at the request of the Vice Chair, the Commission adopted rules that strongly discourage any further policy discussions outside of those subcommittees. These rules (which the chairs are calling guidelines since rule-making was not on the September agenda) include a stated preference for referrals to the full council from the standing subcommittees. The rules severely restrict debate and create a mechanism by which the chairs themselves can easily filibuster agenda items they dislike. In short, through a series of Brown Act violations, the Chair and Vice Chair have led the commission to hold substantial, unagendized, un-noticed policy discussions; to give undue weight to policies favored by the Vice Chair; and to avoid any alternative policies all while the public was told nothing more than that the Commission was developing a work plan as directed by City Council. Having done this, the Commission executives then adopted a scheme by which any further deliberation by the full Commission is strongly discouraged, making it more or less pointless for the public (or, indeed, this Commissioner) to participate in the future. Additionally, illustrating the Commission s lackadaisical approach to Brown Act conformance, the July meeting also included an unrelated, also unagendized, discussion about the creation of a new special fund. Outline of the rest of this complaint Below I describe the sequence of events that I allege are violations, and provide evidence and analysis of them. This is rather lengthy. I tried to err on the side of over-thoroughness rather than incompleteness. Following that description of events, I provide a copy of a cure and correct demand I have sent to the Commission to cure and correct the latest alleged violations. 6 HAC PAGE 25

29 Lastly, I include a prayer for relief addressed to the Open Government Commission. Alleged Violations Violations at June 1, 2017 HAC special meeting Allegation Forty-eight hours in advance of this meeting the agenda packet was modified at the direction of the acting Chair, who was Vice Chair Marian Wolfe. (See below.) At the meeting itself, regular order was entirely abandoned by the acting Chair. The posted agenda had no resemblance to what transpired. What transpired was an unagendized discussion of housing policy problems resulting in a formal action to rank these problems as a matter of priority. The question arises, therefore, what was the purpose and consequence of this unagendized discussion? During this meeting, the chair directed commissioners that the discussion we were undertaking concerned what policies ( strategies and programs ) the commission would recommend to City Council this year. Commissioners were further instructed that the policy discussion was about allocating revenues from measure U1. Please note: the discussion was not about what activities the commission would engage in, or what resources those activities would require. The Vice Chair explicitly directed Commissioners to discuss what policies we would be recommending to City Council in the coming year. The Commission took formal action on this unagendized meeting, using a system of stickers and post it notes to categorize the discussed housing problems. The resulting categorization and ranking of housing problems reappeared in a second unagendized discussion in July, and as a proposal to form broad subject matter jurisdiction standing sub-committees, in September. 7 HAC PAGE 26

30 Nothing in the agenda or the history leading up to this meeting suggested that such a policy discussion or funding discussion would take place, nor were any of the specific topics raised in the discussion agendized. As a consequence of the formal actions taken at this and subsequent meetings, the public was excluded from participating in Commission deliberations regarding what housing policies it would work on in the remaining fiscal year. Evidence and analysis: Early noticing about this special meeting Noticing of the June meeting begins with the April 4, 2017 HAC agenda which contained this item: 7. Planning for Process to Create Annual Work Plan Marian Wolfe (Attachment 4) Exhibit A, attached, contains the agenda for the April 4 meeting and the contents of Attachment 4 of that agenda packet. The agenda item reproduces a resolution passed by City Council in 2016, directing commissions to submit a work plan which contains certain specified elements. Generally speaking, Council directed commissions to describe what activities the Commission intended to engage in, what resources the Commission might need to conduct those activities, what the purpose of the activities is, and what the anticipated outputs and outcome of the activity are. The meat of the direction from City Council is in this description of what a work plan is: CONSENT CALENDAR July 19, 2016 TO: Honorable Mayor and City Council FROM: Council-members Lori Droste, Susan Wengraf, Linda Maio, and Kriss Worthington SUBJECT: Commission Work Plans [.] The City of Berkeley is in the process of introducing its first strategic plan. To ensure that Berkeley s commissions are in alignment with the overall mission of the City, 8 HAC PAGE 27

31 commissions should submit annual work plans. Each work plan should contain the following information: 1. Commission mission statement 2. What are the commission s goals? In order to achieve these objectives, please specify: a. Resources i. What specific resources are needed and available to achieve desired change? (i.e. staff time, $, time, materials, equipment) b. Program activities i. What will the commission do with its resources? ii. Processes, tools, events, technology, actions that are employed to bring about the intended objectives. c. Output(s) i. What will be the direct results of commission activities? ii. How much will be done? (i.e. Number of forums/meetings held, # of participants reached, etc.) d. Outcomes i. The specific changes desired/achieved in the short-term (1-3 years) and long-term (4-6 years) Outcomes should be measurable, action-oriented, and realistic (W. K Kellogg Foundation, 2004). It was agreed by acclamation at this meeting to schedule a special meeting, in June. Evidence and analysis: Noticing of the special meeting itself Exhibit B, attached, contains the full agenda packet for the June 1 special meeting of the HAC as it currently exists on the HAC web site. This version of the agenda is dated May 30, 2017 and contains an annotation that it was modified on that date, by Vice Chair Wolfe. 9 HAC PAGE 28

32 Exhibit C is a scan of one page the physical agenda that was mailed to Commissioners. This is the page that was modified on May 30. The packet, and the last minute changes contained in it, show a divergence between what the Chair and Vice Chair put on the agenda, and what they intended to discuss at the meeting. The agenda of the meeting reads: 1. Roll Call 2. Special Meeting Agenda Approval 3. Public Comment 4. Introduction to Work Plan Process and Mediator s Role Marian Wolfe and Bob Bezek 5. Work Plan Discussion All 6. Adjourn One indication that the intent of the Chair and Vice Chair diverged from their agenda is a public communication, also included in the special meeting packet. The communication is an message sent to the Chair, Vice Chair, and Commission Secretary by Stephen Barton. The letter is addressed to the chairs and the full HAC. It does not reference the special meeting. It s subject line is Measure U1 revenue. The letter proposes a City policy for allocating revenue generated as a result of Measure U1. (This public communication is the last page of Exhibit B.) City policies for revenue allocation do not have any relation to the work plan elements Council directed commissions to create. The letter from Mr. Barton could have been attached to the packet for the June 1 regular HAC meeting, but the Chair and Vice Chair attached it to the work plan meeting. This prefigured the bizarre conduct of the special meeting itself. Also in the agenda packet is a written contribution from the Vice Chair. This is peculiar, first, because the Vice Chair had instructed all other commissioners not to submit written items for the agenda packet. In fact, the Vice Chair s own written item memorializes her her earlier instruction: Remember, we are not bringing in our own plans, but bringing in notes that may be helpful as we participate in a group process. 10 HAC PAGE 29

33 The Vice Chair s memo also contains a section called: Potential Structure for a HAC Work Plan As mailed out, the memo seems to suggest a work plan format which the HAC might, or might not decide as a body to adopt. A reasonable person looking at this packet would conclude that that structure of the HAC work plan would be a topic for discussion during the work plan meeting. The actual meeting took a rather different course. This was, perhaps, prefigured in the last minute agenda packet changes: At 4:24 PM on May 30th, 2017, I received from the Commission Secretary indicating that the special meeting agenda had been updated. (Exhibit D). The Commission Secretary reported that: Neither agenda has changed but in the special meeting packet, there is a revised background memo from Marian Wolfe. Vice Chair Wolfe changed her memo by inserting two dates in the section called Potential Structure for a HAC Work Plan. The structural outline was divided into two sections, one titled: June 1, 2017 Meeting: and the other titled June 6, 2017 Meeting: Apparently, the Vice Chair regarded her possible structure for a work plan as the agenda, and had now unilaterally split her agenda over two meetings. Evidence and analysis: Conduct of the special meeting Exhibit E contains a hyperlink to a copy of a video-recording of the special meeting. The video was made by Christine Schwartz, a Berkeley resident. The special meeting had the following highly irregular features: 1. Roll call was not taken. 11 HAC PAGE 30

34 2. No vote to approve the agenda was taken. 3. No vote to adjourn was taken and, on the video, the meeting simply seems to fizzle out rather than formally end. 4. No motions were made and at no point in the meeting did the chair open the floor for debate, nor did she at any time recognize any other commissioner. 5. The acting Chair (Vice Chair Wolfe) and a presenter from SEEDS gave a rambling 30 minute introduction to the process for the meeting, during which the presenter from SEEDS asserted that he was in charge of the meeting. 6. The acting Chair announced the commission would conduct a discussion about housing policies, starting with the identification of problems and ending with guidelines for allocating revenue from Measure U1. Exhibit F contains a transcript of introductory remarks by the Vice Chair (acting Chair) from this announcement. This transcript establishes a few key elements of the Brown Act violation: a. The regular order and agenda were abandoned. b. The Vice Chair instead undertook an interactive presentation of ideas for City housing policies. c. The stated purpose of the presentation was to, by vote, find which policy ideas were most popular among commissioners, beginning with a categorization of problems the policies would aim to solve. The Vice Chair explains that we are determining what policy recommendations we will make to Council. SEEDS presenter: So what you re trying to do is identify a problem that the City needs to attack or that the commission needs to attack? Marian Wolfe: The policies that this commission recommends to attack or solve lack of housing for low income. A 12 HAC PAGE 31

35 strategy might be building more. A strategy might be rehabbing older buildings. It could be a number of different strategies but its not the same thing as the problem. The problem is a bigger thing, the strategies are listed under problems. (Note that both problems and strategies are part of the Vice Chair s schedule for the work plan discussion.) The videos (Exhibit E) show that substantial, unagendized policy discussions were discussed and voted upon. A summary of these appears in an sent by the Vice Chair one week after the meeting (Exhibit G). Here is an example of unagendized policy discussion from around the 17 minutes, 50 seconds mark of the first of the two videos: SEEDS presenter: [reading a post-it note written by Commissioner Lewis.] Non-permitted units are at risk. ZAB has to do you want read that for me? Commissioner Lewis: ZAB has to issues a certificate of occupancy. SEEDS presenter: OK, or a unit is taken off the market. Commissioner Lewis: So, I m thinking of a ZAB case from a few months ago where it was a non-permitted use and, basically, either the ZAB had to give a ruling that would have allowed it to be no longer rent controlled, or because it was non-permitted use, ZAB s hands were tied. That s because they could either have [inaudible]. Vice Chair Wolfe: So I m still not sure I understand. It s something that was housing that was not permitted to be housing? Commissioner Lewis: It was like Igor might remember better. It was, like, not a legal unit - but because it was older it was an old enough unit it was rent controlled. But in order to make it legal they had to issue a certificate of occupancy that, under Costa-Hawkins, makes it non-eligible for rent control. Chair Tregub: We passed an item on that in January. That specific case was considered legal by the rent board, but then there 13 HAC PAGE 32

36 [inaudible] was not considered legal by the permitting authority. Vice Chair Wolfe: So to have the rules cleaned up. Chair Tregub: Yeah. In order to be legalized it has to be issued a certificate of occupancy which wipes out rent control under Costa Hawkins. Please note that from a Brown Act perspective, what has happened here is that commissioners having been instructed not to submit their policy concerns for publication in the packet are now raising them at this meeting in order to decide how to rank them in terms of Commission attention for the coming year. Moreover, during these discussions, commissioners are, de facto, gauging one anothers support and alliance on various speculative ideas. Nothing in the agenda indicates that such spit-balling would occur. The public had neither the alternative to propose other areas of policy concern, or to weigh in on what the commissioners would rank that night! Also noteworthy, visible in the last 10 or 15 minutes of the meeting, is that the highly irregular meeting devolved into a casual milling-about conversation among commissioners as they applied stickers to make their dot votes. The video, by a member of the public, shows that the public was excluded from the contents of the full-commission, free-ranging chat. This too is a Brown Act violation a non-accessible, non-public meeting was held by the full commission, egregiously during the irregular proceedings of the special meeting. Evidence and analysis: Minutes of the Special Meeting At the September meeting I requested that the minutes for the special meeting reflect that regular order was not followed, and that the attendance record for the meeting be corrected (Chair Tregub was late to and Commissioner Slaughter was absent from the special meeting). The minutes as published (Exhibit L) state that no action was taken (although formal action was taken) and the minutes record a false attendance record. The minutes are contradicted by the video (Exhibit E). 14 HAC PAGE 33

37 Violation in the form of a serial meeting by on June 8 Allegation On June 8, 2017, Vice Chair Wolfe sent lobbying to the full commission. The lobbying instructed commissioners to consider an attached laundry list of housing policy ideas during the second part of the work plan discussion. The list of policy ideas, taken from a City Council item earlier this year, originate in a Mayor s task force on housing of which the Vice Chair was a member. The lobbying also instructed commissioners to prepare but not agendize policy proposals to present at the July meeting. Evidence and analysis: from the Vice Chair Exhibit G contains the lobbying memo sent by Vice Chair Wolfe. Exhibit H contains the Commission Secretary s conveying Vice Chair Wolfe s memo. Of particular note is this passage from the Vice Chair s out of order memo to the full Commission (emphasis added): I have also pasted in the short-term housing referrals provided by Mayor Arreguin and Councilmember Kate Harrison, based on a variety of sources, including the recently convened Mayor s Housing Task Force. The reasons for including this list are two-fold. (1) There are some interesting ideas that fit into problem categories that the HAC has defined. (2) If the HAC and the Council agree on certain strategies from the onset, it is useful to know. It would be a good idea if we can agree on a Work Plan at the end of the July meeting to make sure that we are able to provide guidance to the Council in the future allocation of U1 funds. Option of How to Proceed 15 HAC PAGE 34

38 Between now and our next meeting, each commissioner lists strategies for addressing problems. If you do not feel strongly about some of these problems, there is no reason to enter any strategies. Write up what interests you the most. However, be sure to organize your strategies using the list of problems provided below. If possible, use this WORD table for the write-up. The table row heights will expand as you type. In this way, it will be easier for us to assemble all the strategies into a single document. Please remember to designate whose [sic] strategies for which you recommend the use of U1 funds. Commissioners will then bring their strategy lists including U1 recommendations to our July meeting. During this meeting, we will review the strategies and U1 recommendations likely by going around the room a few times. If a strategy you would recommend has already been recommended by another commissioner, then recommend other strategies on your lists. Then, we will vote again to prioritize strategies within problem categories. Based on the information recorded on the large sheets at the July meeting, I will create a single document that can be provided to the Council in July to reflect the HAC s priorities. This document will also be provided to the HAC at the same time. Then, at the September meeting, we can consider if we need to create a more formal document as our adopted work plan. Plainly, the Vice Chair wrote to all members of the Commission between meetings, laying out a strategy for conducting a discussion and taking action about unagendized policy and funding ideas. Included in her lobbying was a list of particular policy ideas she herself favors. 16 HAC PAGE 35

39 Violation in response to a Brown Act Complaint Allegation The Chair and Vice Chair of the HAC failed to respond to a demand to cure and correct a Brown Act violation. After receiving the Vice Chair s June 8 to the full commission, I became aware that Brown Act violations may be taking place. After some exchanges with the Commission Secretary and Chair Tregub, I sent an making a clear demand for a cure and correction of Brown Act violations, proposing a specific correction. The Chair and Vice Chair did not reply to that demand. Evidence: My June 8 to the Commission Secretary Exhibit I contains my initial inquiry to the Commission Secretary which begins: Thank you, Amy. Wow. Was this document reviewed by a City attorney? In particular, is there a written record of that review that I can see? While I m not an expert, this seems to me a clear violation of the the Brown Act prohibitions against lobbying. Evidence: June 8 reply from the Commission Secretary Exhibit J contains the Commission Secretary s reply. Unfortunately, the did not give accurate advice about how to advance a Brown Act complaint: No, this document was not reviewed by the City Attorney s office. I checked in with the Clerk about sending out the information in advance of the meeting, and options for compiling the Commissioners ideas. 17 HAC PAGE 36

40 You can raise your concerns about the process at the July meeting to the whole Commission. I am copying the Chair so he is aware of your concerns about the process. Evidence: June 8 from Chair Tregub Chair Tregub also replied to me on June 8th in an that read (in its entirety): Thank you Tom. Your concerns have been noted. Please feel free to reach out to me if you have further questions on this proposed process. In particular, how would you prefer that the meeting be conducted instead? Thanks, Igor Evidence: June 8 in reply to Chair Tregub I replied to Chair Tregub (Exhibit J) suggesting the Chair and Vice Chair send a message to the full commission for which I offered this draft: Fellow Commissioners, You recently received a document from Vice Chair Wolfe regarding the Commission s work plan. This purpose of this message is to make sure that commissioners what the work plan is, and how they can contribute. On July 19, 2016, City Council passed a resolution directing most City Commission s to prepare an annual work plan. I have attached a copy of that Council resolution. The Council directs Commissions to produce a work plan containing: 1. Commission mission statement 2. What are the commissions goals? In order to achieve these objectives, please specify: a. Resources [for commission activities] 18 HAC PAGE 37

41 b. Program activities [what the commission will do with these resources] c. Outputs [what will the commission accomplish] d. Outcomes [what will be the result of doing this] To prevent confusion: The work plans requested by that resolution would not ordinarily state revenue allocation recommendations. In particular, the Housing Advisory Commission is not asked to make recommendations for U-1 as part of its work plan. Commissioner s [sic] who prepare proposed written contributions for the work plan should make an effort to prepare those written items in time to be submitted for the July agenda. Written items MAY NOT be introduced at the full meeting without a vote of the full Commission. Commissioner s are encouraged to submit agenda items suggesting elements of a mission statement, and agenda items suggesting commission activity goals (along with, as appropriate, statements of needed resources, program activities, outputs, and outcomes). Finally, the Council s housing referrals are informative. They are in no way binding or determinative as to the contents of the work plan, and are not intended as such. The Council resolution of July 19, 2016, is the definitive statement as to why we are preparing a work plan. The also contains suggestions for how to agendize the work plan in the July meeting. Evidence: June 9 from Chair Tregub Chair Tregub responded to my proposed corrective actions this way, in an on June 9 (reproduced in its entirety here). Three elements of this are of particular note: 1. The Chair falsely believed that a second 90 minute special meeting was scheduled. 19 HAC PAGE 38

42 2. The Chair asked why the Commission should prepare a Mission Statement as the Commission was directed to do by City Council. 3. The Chair regarded the July agenda in this matter was up to to the Vice Chair. Dear Tom, I believe that I should first share your concerns with Marian and see if she might be inclined to see how the agenda for this meeting can be amended. Please keep in mind that we only have 90 minutes allocated for this workshop, though we may have a bit of time to wrap things up as part of the regular meeting. I did concur with the original framework for the June and July discussion and met with the facilitator to discuss how time can be managed. I am personally not wedded to keeping U1 funding from the discussion, though at some point we will need to make some discussions concerning it. This could be done through the U1 subcommittee. Can I get some clarity about why you wish to include a new mission statement? We already have a commission charter. This might take up some time, so I m trying to understand what purpose this would serve (an innocent question). And are you ok with my sharing your comments with Marian, or would you like to send something to her directly? Best, Igor Evidence: June 9 to Chair Tregub In reply to the Chair I wrote a message to be shared with the Vice Chair, exhorting the Commission executives to return to the agenda and the direction from council: Igor, Thank you for your note. You may share this message with Marian. Time is of the essence. 20 HAC PAGE 39

43 Let s all resolve to try our best to emerge from the July meeting with a work plan. I hope the Executive (Chair, and Vice Chair) will remember what a work plan is. The work plan agenda item was introduced at our April meeting. The agenda item is taken, verbatim, from a council resolution passed in The purpose of a work plan our direction from City Council is to state what the Commission plans to do in the coming fiscal year. It is a statement of how Commission members plan to spend their time. The City Council has asked that each Commission activity announced in a work plan be explained with respect to: the purpose and nature of the Commission activity resources the Commission may consume during this activity what the activity will produce meetings, documents, and so forth what the hoped-for outcome of the activity will be The City Council also asked that each commission sum up its activities with a mission statement. The usefulness of this direction from City Council is clear: By enumerating Commission resource requirements, planned outputs, and hoped-for outcomes, a work plan helps City Staff and City Council to plan with respect to Commission activities. By enumerating the associated goals, work activities, and a mission statement, the Commission creates a guide for itself about how to make efficient use of its own time. There is no use crying over spilt milk but, unfortunately, the Commission has not yet taken up the question of what the work plan should contain. No Commissioner has had the opportunity to propose an activity that they would like to engage in. Consequently, the Commission has had no discussion whatsoever about what its members hope 21 HAC PAGE 40

44 to accomplish, how they plan to do that, what resources they will need, and so forth. I believe the Executive s highest priority right now is to correct course, and try to make the most efficient and best use of the time remaining before the August break. I urge the Executive to immediately contact commission members and solicit agenda items for our July meeting. The Executive should ask Commissioners to propose specific Commission activities, noting what the activity will produce, what effect is hoped for, and what resources may be needed to complete the activity (e.g., 3 subcommittee meetings or funds and Council permission to conduct a survey of Berkeley residents ). The executive should also encourage Commissioners to read the agenda packet in advance and come prepared to state what activities they would, themselves, like to participate in. At the July meeting, hopefully we can quickly agree on consensus list of activities, including tentative assignments to individual commissioners. If we are flush with time we can embellish this with a mission statement. At the July meeting, if there are late entries for the proposed activities list, we can vote to accept those related documents to the agenda. If we are able to agree on a list of activities, then that will be at least the essential core of the work plan City Council has directed us to produce. I m sorry to say that I must specifically disrecommend any further pursuit of talking about policy strategies, city programmatic activities, and funding allocations. These are simply not what City Council asked for and they are not what was agendized in April. Regards, -t 22 HAC PAGE 41

45 Analysis of June s The above s are certainly not a model example of how best to make a Brown Act cure and correct complaint. Nevertheless, I contend that they comprise such a complaint, and that the Commission further violated the Brown Act by not responding to the complaint. In my June 8 messages to the Commission Secretary and Chair I register my complaint that the irregular June 6 from the Vice Chair had violated the Brown Act, and that meetings had taken up unagendized topics. The Chair asked for elaboration of what corrections I thought were appropriate and I replied with such an elaboration. The Chair and Vice Chair made no further reply to that complaint. Violations at July 6, 2017 HAC meeting (unagendized discussions and action) Allegation At the July 6 regular meeting of the HAC, regular order was suspended for a portion of the meeting. In a 50 minute process, the Vice Chair led an unagendized discussion in which Commissioner s were asked to propose, discuss, and seek agreement on housing policies to advance as a Commission. This took place during the time appointed for discussion of the Commission s work plan. Evidence and analysis: Noticing of the July 6 meeting Exhibit K contains the agenda for the July 6 meeting as well as two attachments included in the agenda packet. Of particular note are two items: and 7. Housing Advisory Commission Work Plan All (Attachments 3 and 4) 23 HAC PAGE 42

46 11. Discussion and Possible Recommendation to Council on Measure U1 Allocation Guidelines Luis Amezcua and Igor Tregub (Attachment 9) Attachment 3 of that agenda, pertaining to the work plan, is a copy of Vice Chair Wolfe s lobbying from earlier in June. Attachment 4 of that agenda is my submission, advocating that the Commission return to the work plan agenda and adopt a minimalist work plan containing the elements Council directed the Commission to include. Attachment 9 of that agenda, from Chair Tregub and Commissioner Amezcua, proposes a recommendation to City Council to allocate revenue from measure U1 according to a certain formula. Nothing on the agenda or in the agenda packet suggests to a reasonable person that the commission would use these items, on July 6, to undertake discussion of such topics as: up-zoning in neighborhoods near BART stations officially designating the perimeter of UC Berkeley campus as a high priority transit corridor since student commuters walk to campus from that area whether or not the the Commission should recommend that City Council create a new special fund for housing, roughly commensurate to the size of new annual revenue generated by Measure U1 of Nevertheless, those discussions and more were held in the free-for-all led by the Chair and Vice Chair. Evidence and analysis: Conduct of the July 6 meeting Exhibit M contains a hyperlink to an on-line copy of a complete audio recording of the July 6 meeting. Discussion of the work plan begins at about 26 minutes into that recording. What follows is a partial transcript from the introduction to this item by the chairs, with some interspersed analysis: 24 HAC PAGE 43

47 Chair Tregub: We will now move to the work plan and this is going to be a little bit multi-faceted. The first thing I wanted to do is introduce for the benefit of the three folks who weren t here last time: This is part two of what hopefully will be only a two-part process. So the first part was Vice Chair Wolfe: U1, remember? I mean, still, we may not get through all of this today. We re going to try to get through what we can. And, can I just say one thing real fast about U1? Chair Tregub: Sure. Vice Chair Wolfe: You know, sometimes you get wisdom and you can t update the agenda packet, but we realized that we re not going to get through enough information today to make solid recommendations for U1 expenditures so instead what we want to do is just develop some strategies, and I ll present this when its my turn, but, the idea is we re going to ask to create a U1 subcommittee that will be working off our work plan and that will then be able to make recommendations, but, we don t see actual priority of funding recommendations before September s meeting. Instead what we re hopefully going to come up with today are the strategies that we would like for the priority problems. Please note that the Vice Chair is quite clear that the work plan agenda item will be used to advance a policy discussion about funding allocation recommendations. It is noteworthy in this context that Vice Chair Wolfe is also a board member of Resources for Community Development, an organization that is potentially eligible to to receive housing related funds that are under the control of the City. It also becomes apparent that the Chair and Vice Chair are somewhat disorganized and at odds about what is going on: Chair Tregub: I think that what Marian is saying is that the U1 discussion will be saved for later. Tonight we re purely going to talk about the strategies. Now, I m going to, in a couple of seconds, give Tom the floor because I think you had some specific concerns about the work plan. I wanted to give you some time 25 HAC PAGE 44

48 to speak to those. [The Chair then discusses time management technicalities. Then ] Substitute Commissioner Magofña: So, just a point of clarification: are we going to be discussing attachment 3 [a copy of Vice Chair Wolfe s lobbying from June] or looking at attachment 3, or not. I don t understand. Commissioner Wolfe: All right so attachment 3 is the one that starts on page 8. We are going to be discussing this the one thing from what this says now and what I m proposing is there s a final column on page 9, just says priority for U1 funds and we re gonna not do that, today. And one other thing, because you look at this table, we go from voting on, as you can see, as you go down the list there are fewer and fewer votes so I would recommend that we start with the top, let s say, five vote getters and not jump all over the place just so that we can, at least for those, say, that we have had a strategy discussion. I mean just because those are the ones most supported at the last meeting. Of note is that, so far as the Vice Chair is concerned, the Commission took formal action at the June special meeting, in particular action designed to gauge support among Commissioners for the unagendized problems raised during that meeting. Please also note the Vice Chair s emphasis on strategies. transcript I asked her what she means. Later in the At 30 minutes into the audio recording I am granted the floor and first tried to dissuade the Commission from continuing down the path it was on. Commissioner Lord: I thought I would begin by mentioning what I thought was a really exemplary work-plan from a different commission. That would be the Open Government Commission. The Open Government Commission is exemplary because it contains exactly the five elements that Council directed commissions to put into a work plan. Those are: A mission statement: The Open Government Commission s is 26 HAC PAGE 45

49 a few sentences long and talks about ensuring that the public has adequate opportunity to be informed about City of Berkeley activities, and to communicate its concerns and so forth. City council asked commissions to say what resources it would need in order to do its work. The open government commission pointed out that it is sufficiently well staffed and needs no additional resources. City council asked what activities the commission will engage in. The Open Government Commission listed four. The commission also provided, as Council asked, the outputs from those activities and the intended outcomes of those activities. In, I believe it was April, the work plan was agendized at this commission, with City Council s direction to that effect. Neither in April, May, or June has this Commission discussed any of the elements that the Council asked for. In fact, technically speaking, this Commission has never had any open discussion whatsoever about the work plan. We had a 90 minute special meeting last month. The floor was never opened for discussion. We were subjected to a 90 minute presentation, none of which was about the elements of a work plan. Tonight we have two substitute members. I think it is inappropriate for us to continue this faulty process. There s other flaws with the process as well. I think it was inappropriate for the Chair to send out a list of recommended ideas to consider for the work plan outside of the regular order. But I think the right thing to do is ideally to adopt something extremely minimalist, like the Open Government Commission did. We could do that tonight. I included a draft in the packet. I m not sure what page it is page 14, 15, something like that. When we return in September, my suggestion would be that each Commissioner and each sub-quorum group of Commissioners that is inclined to work together, place on the September agenda ac- 27 HAC PAGE 46

50 tivities they would like to engage in, would like others to engage in, would like help with, and so on, so that we might get some semblance of what Council actually asked for. I don t consider what is on the agenda from the Vice Chair to be legitimate. Chair Tregub: Thank you for your comments. Luis? Commissioner Amezcua: My understanding was we weren t going to adopt a work plan but look at some of the things we might work on and then come back later? It s only once we know what we re going to work on that we know what resources we are going to need. I m trying to clarify if you are objecting to that process. Commissioner Lord: I don t think that that s the process before us. I think the process that we ve been led through so far: We were each called upon by the presenter to identify three issues which I guess are housing issues in the City generally. Tonight we re apparently supposed to list policy ideas - strategies for addressing those. Policy ideas and strategies are not activities of this Commission. They would be outputs of this Commission. What we really should be discussing is not strategies, but what activities each of us, and us collectively will engage in by which we might arrive at strategies. It s appropriate that the U1 question has been removed because that links this whole issue of policies, rather than our activities, to funding recommendations which is completely outside the scope of a work plan. Chair Tregub: Thank you. Commissioner Lord: To make that clear: I agree with what you [Commissioner Amezcua] said. I don t think that s what the executives have in mind. 28 HAC PAGE 47

51 Chair Tregub: Marian, would you like to clarify what you had in mind? Vice Chair Wolfe: Yeah. First of all there is no one way to do a work plan and this is something we clarified with Amy [the Commission Secretary] real early on, that there was guidance provided by the City Clerk but that s not a thou shalt do it guidance. In the past we never - I mean I ve been on commissions for a long time - we never identified spending dollar amounts, outcomes, thou shalt build 2000 units of affordable housing, it s really hard to do that. Please note that the Vice Chair seems to be unaware or unconcerned with the 2016 work plan direction given to the HAC and other Commissions by City Council. She continues: And so what we ve done so far is not inconsistent with what we ve done in the past and its not violating any City responsibility. The Vice Chair lays out her intention to form Brown Act standing subcommittees: We will be working towards more details and what we re going to hopefully be doing is establishing subcommittees. For example, one of the items on our problem list was moderate income housing. After we agendized that as an important issue in our last work plan we had a moderate income subcommittee! In fact, I ve come in with the last memo from there to talk about strategies we didn t yet have a chance to explore. Please note that my complaint does not allege that Brown Act violations are new, this year, at HAC. If the Vice Chair wishes to assert that this year s Brown Act violations repeat past practices, I have no basis on which to disagree with her. The Vice Chair continued: So this is a process that we started in June, we re continuing in July, it will continue in September. Chair Tregub: At this time I am happy to let folks continue to discuss this if they wish but I am also happy to encourage 29 HAC PAGE 48

52 someone to make a motion and put something on the floor. Commissioner Lewis: Point of inquiry - are you saying what do you mean do you want us to start Chair Tregub: OK, thank you Matthew, so to clarify, the motion on the floor that I would really encourage someone to put forward would be, in essence, how we wish to conduct the work plan process tonight. Matthew? Commissioner Lewis (Matthew) then made a motion to proceed with Vice Chair Wolfe s presentation. This motion passed. (See from around minute 37 of the audio recording.) The Vice Chair commenced a lengthy description of the process she hoped to engage in. Skipping ahead: since the discussion was to be on strategies Chair Tregub: So everyone understands the motion? It s just going to be to take the top five prioritized problems Commissioner Lord: I don t understand the motion, actually. What exactly is meant by a strategy? Vice Chair Wolfe: OK, I ll give you some strategies. I ve already started filling it out. OK? So for example lack of affordable low income housing so one strategy is to help increase funds to leverage our projects that are the BMR projects; another would be fast-track processing for low-income projects. Please note that, again, as a board member of Resources for Community Development, Commissioner Wolfe has an interest in advancing policies like these. So those are strategies. Another strategy would be, for lack of funding for low income affordable housing, from our subcommittee that didn t finish, one would be to support new development that is owned in less traditional ways like land trusts, coops, that kind of thing. So these are not programs we ll start on September 1, but then, these are strategies, then, through subcommittee work we ll come 30 HAC PAGE 49

53 up with suggestions for programs. Commissioner Lord: Who is the agent of a strategy? is it the City of Berkeley? Vice Chair Wolfe: It could be a mix. It could be Berkeley, it could be you know, notifying the land trust, yeah, but, usually it is the City of Berkeley. Yes. The City of Berkeley. And the staffing problem we can talk about it later and that is an issue. But yes, it would be the City of Berkeley, working with the nonprofits usually, or the University, depending on what the strategy is. The reference to the non-profits presumably includes Resources of Community Development, one board member of which is Vice Chair Wolfe herself. Chair Tregub: Hopefully that answers your question? Commissioner Lord: As I say, I don t want to repeat myself, an activity of the City of Berkeley is not an activity of this Commission. It seems to me that recommendations for what the City will do should be the output of the activity of this Commission, not something that we list before we have done anything. At about 47 minutes and 40 seconds, another indication that the meeting has gone off the agenda: Commissioner Johnson: I feel like what that [something another commissioner had said] might miss is that the work plan is more like our recommendations to Council to proceed with the housing crisis - to address what we see the issues are. If we just focus on the list from Council we might miss that. [ ] It s really us setting what we think the City Council should be looking at, is my understanding. Chair Tregub: Yeah. And the process allows for that, too. So, it is almost 8 [.] Please note that Commissioner Johnson is by this point quite clear that the Chairs are asking for the full Commission to be advancing City housing policy recommendations during this meeting, as opposed to a work plan for the Commission itself. 31 HAC PAGE 50

54 The discussion of strategies commences at about 48 minutes, 40 seconds into the audio recording. A few example minutes of this, transcribed (from 50 min 30 sec), follow. Please note that nothing on the agenda suggests policy topics like these would be discussed at the meeting, let alone acted upon. Substitute Commissioner Magofña: Do students qualify for below market rate units? Undergrad students, mostly, in most cases? Secretary Davis: No. Substitute Commissioner Magofña: OK, I just want to make sure that I m on the right page that students do not qualify for below market rate housing, in most cases. Vice Chair Wolfe: There s one exception that I know about Oxford Plaza. The one on Oxford street. There are families living there where one of the members of the family is a student, but they have to have a member who is actually a working adult. Substitute Commissioner Magofña: I know, I just wanted to make it public. Commissioner Lewis: May I make a comment on that topic? So I want to make two quick things which is that restriction is generally on federal funds. Funds that we generate locally, we the City can generally set whatever guidelines we want. And that s important. And also, in terms of stuff from other federal funds, so my senior thesis, I m writing about student housing, particularly student housing coops, and what I ve found is that some of these coops have done means testing in a way that makes them eligible for some of these funds, sometimes. Vice Chair Wolfe: All right, do you want to add, since you ve mentioned coops for students should we put that on as a strategy? Encourage more student coops? Commissioner Lewis: If that is the first strategy up there I would 32 HAC PAGE 51

55 Vice Chair Wolfe: OK, why don t we go this way. Matt [Commissioner Lewis], do you have two other ideas you want to throw out? Per Commissioner Johnson s understanding, encourage more student coops is now, in effect, the Commission s recommendation to Council. Per Vice Chair Wolfe s scheme, proposals in that policy area will come from one of the standing commissions to be established in this process. Also per Vice Chair Wolfe s scheme, the commission has decided to rank encourage more student coops in a list of funding priorities. Nothing in the agenda suggests that anyone with something to say on that policy recommendation even a Commissioner should have expected it to be discussed this way and acted upon at the July meeting. Violation at July 6, 2017 HAC meeting (unagendized discussion) Allegation Poor management of the meeting by the chairs led to an extensive but unagendized discussion about the policy idea of creating a new City of Berkeley special fund (aka budget set-aside). Although no action was taken, Commissioners used the discussion to craft a possible future resolution, and to gauge one anothers level of interest or support for the idea. Looking at the published agenda, no reasonable person could have anticipated that such a topic would have been taken up, especially not for a lengthy discussion. Evidence and analysis: discussion of a special fund or budget set-aside The July 6 agenda (Exhibit K) contains this item: 33 HAC PAGE 52

56 11. Discussions and Possible Recommendations to Council on Measure U1 Allocation Guidelines - Luis Amezcua and Igor Tregub (attachment 9) The main substance of the recommendation (also in Exhibit K) is this proposal: Recommend to City Council that Measure U1 funds be allocated as follows: 80% for permanently affordable housing; Up to 15% for homelessness prevention. If lower than 15%, the remainder goes to affordable housing. 5% for administration. The item is problematic because on the one hand, technically speaking, there is no such thing as Measure U1 funds. On the other hand, the Mayor himself has sometimes spoken and written as if there were. Nevertheless, when the item came up, it was quickly pushed aside to have an unagendized discussion about a proposal brought by one of the substitute Commissioners for the evening: a proposal to create a new special fund. It is the contention of this complaint that the Chair should not have allowed this proposal to become a topic of discussion, because it was not within the scope of what was agendized. A partial transcript of the audio recording of this meeting (Exhibit M), commencing from around 2 hours, 37 minutes. This transcript begins during the consideration of a different item item 12 which was taken out of order. The Commission is discussing a question about about why the concept of a repayment schedule for U1 funds makes no literal sense, a point on which at least one commissioner was confused. I am beginning here to establish some context for the statement, below, by substitute Commissioner Magofña: Commissioner Kesarwani: I m sorry to belabor the payback schedule issue. You know, I did read Measure U1 and it is correct that - my understanding is that - U1 is a revenue source. We increased revenues and those revenues go into the general fund. 34 HAC PAGE 53

57 So it s all in the general fund. You can t technically pay back a revenue source. So I think the City Manager is going to come back to us and say that doesn t have any meaning to them. Vice Chair Wolfe: But they already proposed this in an earlier purchase of Premier Cru properties. (Note that what the City Manager proposed was that money be borrowed from the workman s compensation fund to purchase those projects, and that repayment of that fund was necessary.) Chair Tregub: I think what Commissioner Kesarwani: OK Vice Chair Wolfe: So there s already precedence on this. think maybe there s going to be reporting on it. Chair Tregub: I think that - staff correct me if I m wrong the issue is that U1 receipts, revenue from those receipts, will not come in until later in the fiscal year? So until then, general funds are being used that are non-u1 revenue specifically, to front-load the money, and then once the U1 revenue dollars appear they will essentially go into the general fund to replace what has been taken out. Vice Chair Wolfe: So maybe not all of it. Until this is paid off. Maybe have it half a year to do some kind of thing. OK, I ll be quiet. But it s an allocation. OK. Chair Tregub: Amy [Commission Secretary Davis] is that accurate? Secretary Davis: Actually I think there s a lot of confusion going on right now because I think the way that U1 was kind of described and conceptualized is not there s some differences some people think it s a specific program but really it didn t pass the threshold to get the votes it would have needed to be a dedicated source so it really is general fund. I think that s one reason the City Manager is being careful about it. But I think that definitely there is a lot of talk you know the Mayor s report he describes it as a source, using it as a source. It s still evolving. I 35 HAC PAGE 54

58 I think that people understand. Chair Tregub: Thank you. Greg? [Commissioner Magofña]. Substitute Commissioner Magofña: So I think that one problem we re having is that we went out of order [taking item 12 ahead of item 11] because for the other item I wanted to make a recommendation that the Council actually create a set-aside for this so it would actually be U1 money. We re not there [on item 11], so that was going to be my recommendation previously. Can I add that to here? Like This council should set-aside an amount, equal to 2 or 3 million to create a fund, dedicated to funding the things specified in U1. It would have been appropriate, at this point, for the chair to point out that creation of a special fund was not on the agenda but could be taken up at another meeting if properly agendized. Chair Tregub: We are going to get to that right after we finish this. Substitute Commissioner Magofña: Well, I mean its weird because then we go backwards and ask them to create that. [ ] The exchange continues to clear up the confusion of taking item 12 out of order. A vote is taken on item 12. Discussion of item 11 is quickly derailed by this special fund concept. After Commissioner Amezcua introduces item 11. Vice Chair Wolfe makes a brief comment about referring it to a standing subcommittee she plans to create in September. Substitute Commissioner Magofña gets the floor shortly after 2 hours, 46 minutes: Substitute Commissioner Magofña: I would just make a friendly amendment to, first of all, create a set-aside equal to the U1 revenues coming in and then, second, not to say that funds be allocated - that s too prescriptive - but say that funds be considered with the following recommended allocation amounts. So that one year, if we give 75 to one thing and 20 to another thing its still, generally, along the recommended amounts. It isn t a 36 HAC PAGE 55

59 specific number. I think it s way to soon to, basically, tie your own hands, if the money hasn t come in. Chair Tregub: Thank you. I think Greg brings up a really important point in terms of our charge. We can only recommend various allocations. Consider is probably the right word. I wanted to ask staff, actually, on the other question Greg posed - I like the special fund idea but I wonder if that is legal given this is a general fund source. The Chair himself has now unilaterally taken up discussion of the unagendized special fund proposal. Secretary Davis: I don t really know you just have to talk to the City Attorney but the Council can do anything it wants with general funds. Probably its OK? Substitute Commissioner Magofña: As someone who s dealt with the budget, yes: they can create budget line items where the money goes to specific things. We wouldn t say take that money and put it directly in; we would say create a new account and specify 2.3 million dollars a year to go towards funds that go to A, B, and C. Chair Tregub: OK like the G27 account or whatever. Substitute Commissioner Magofña: So we would recommend that they create a new account to go to A, B, and C, for what is it? for 2.4 million or whatever it is. Commissioner Amezcua: Can I just word it to council so that they set aside a different account for funds from measure U1 tax receipts? Substitute Commissioner Magofña: No. That would be illegal. So what we re recommending is that - let me look up the wording for measure U1 - for the Council to create a new account that goes to. uh. Commissioner Lord: [quoting or closely paraphrasing Measure U1] Increasing the supply of affordable housing and preventing homelessness of Berkeley residents? 37 HAC PAGE 56

60 Commissioner Amezcua: Well, all the money goes to the general fund so Substitute Commissioner Magofña: Yes, in the amount of 3 million dollars annually. Discussion falls out of any regular order at this point and is difficult to transcribe accurately as several commissioners converse freely and in hard to pick out sentence fragments. Resuming the transcript at 2:49:50: Chair Tregub: Let s hold that thought and we have Tom and then Matthew. Commissioner Lord: Is there a motion on the floor? Chair Tregub: There is no motion on the floor. Substitute Commissioner Magofña: No, there was a motion! I Chair Tregub: Was that a motion? Substitute Commissioner Magofña: Well, one, to create it, yes. So this part and to change Luis [Commissioner Amezcua] recommendations to say - instead of saying funds be allocated - say funds be considered with the following recommended allocation levels. Commissioner Kesarwani: But nothing about the account? Substitute Commissioner Magofña: Two parts. One create the account. Second part: change from allocate to consider with the recommended allocation levels. Secretary Davis: Could you kind of give us a statement for the first part of the motion? Substitute Commissioner Magofña: Request that the City Council create a budget account Chair Tregub: A general fund account? 38 HAC PAGE 57

61 Substitute Commissioner Magofña: A general fund account to fund programs that increase affordable housing and protect Berkeley residents from homelessness. And then I don t know if we should specify an amount or let them decide how much to put into it. Chair Tregub: I think at this point, just to keep it as clean as possible, we could just vote on this motion and then someone else could propose a separate motion. Is there a second to Greg s motion, by the way? Substitute Commissioner Carter: Second. Chair Tregub: Seconded by Zach, OK thank you now it s on the table. Secretary Davis: Just to be clear, that s just on the piece on creating the account? Chair Tregub: Yes. So we had Tom, Matthew, then Xavier and Luis. Commissioner Lord: OK. I was going to to ask the question of whether Luis [Commissioner Amezcua] item asked council to take an action. Maybe I still should. Not the motion - but what you wrote - does it ask council to take any action? Commissioner Amezcua: there s not always fighting. Well, it gives them guidelines so Commissioner Lord: There s nothing for them to vote on? Commissioner Amezcua: No, they are going to vote on it. If they re going to allocate the money they can allocate it to buy a property or do something else. It would be a policy decision. Commissioner Lord: The Commission sent something to Council, I think last month or very recently, that was, in my opinion, misinterpreted by the City Manager to be along the lines of what you suggest. That is, for Council to make a vote about how this revenue stream would be allocated. Within the context of that misunderstanding, the City Manager s objection was solid which was This would violate California law because it would 39 HAC PAGE 58

62 in essence render U1 into a special tax. So I can t support it because I think it makes that legal mistake. Understanding these percentages as guidance from this Commission to this Commission itself, I don t understand any principled reason for this amount. I mean, 80% for permanently affordable housing - first of all, I m not sure that there is a distinction between permanently affordable Chair Tregub: Can I, uh Commissioner Lord: Yeah. You just want to get through this one motion and that s fine. Having clarified that, I can t support this motion either. I understand you re trying to do this fancy thing - just set up this budget fund - but that raises questions for me like what are the criteria for spending from this fund? It sounds like an enormous project for staff to set up something along the lines of the HTF [Housing Trust Fund]. This is such a vague idea and it seems like such a transparent way to try to turn this into a special tax. Commissioner Magofña: I want to add to it, with the HAC making recommendations for funding because the concern here is that U1 money is not going to U1 purposes so I m saying let s create an account for U1 purpose that will be monitored by the HAC. So that is the essence of my motion and that s the spirit, I think of U1, when it went before voters Chair Tregub: Zach, as the seconder are you friendly to that? Commissioner Carter: Yes. Chair Tregub: OK, next we have Matthew Commissioner Lewis: A few thoughts. One is just as a member of the U1 campaign steering committee, as [inaudible] goes, the U1 amount - I think it was the U1 amount - that was subject to like a lawsuit, right? So that amount might actually be higher. The second thing is: I m glad we re doing an account. I was going to suggest that. I think it will be much easier to track. If my understanding is correct, what s being said is we can put a 40 HAC PAGE 59

63 fixed number for how much is automatically allocated in general tax funds of 2.85 million but we can s put in an amount and say that the account automatically gets however much was brought in in receipts from U1. The reason why is because it would make it like a special tax. But here s what I don t understand about that is that: ballot measures in California can t change without voter approval. So to turn it from a general to a special tax would have to go to the voters. Anything passed by the council though, the council can by a majority vote fund this and so if the council, being good people and in the spirit of U1, passes something that says this is an amount based off the receipts they can always come back, like, a year later, either because we have an emergency or because they re violating the will of the voters or whatever reason it might be an change it say we re getting rid of this account and we re just spending it whatever be it bridges or road improvements. So are we certain that we can t do this? that we can t do this amount? we legally can t because the council can always repeal this. Please note: by this point, the conversation is deep into the weeds because the topic a special fund was not agendized and nobody is prepared, not even staff, with the basic facts about what is entailed. At the same time, Commissioners have already used this unagendized discussion to gauge who among the Commissioners is likely to support this idea, given the chance. This dealing among Commissioners is taking place without any hint in the public notice for this meeting that this question would be taken up. Commissioner Lewis continues: Are we certain we can t make it a fluctuating amount? Commissioner Magofña: No, because that would have been a tax that the voters didn t vote on. Commissioner Lewis: Right but the Council can always just cause its going into an account, that s just for accounting purposes, right? And so Commissioner Magofña: Well, when its directly linked to a revenue source that s actually like a tax on people then it s going 41 HAC PAGE 60

64 to have to be a two thirds vote of the people. I mean Chair Tregub: OK, so Matthew I think Greg answered your question. We re really running short on time so trying to move things forward Xavier and then Luis. The unagendized discussion of creating a special account continues for another 10 minutes, approximately, undergoing additional amendments. At about 3 hours, 4 minutes, and 40 seconds: Commissioner Lord: There s a lot of interesting ideas and a lot of creative brainstorming going on. Which is great. I m not sure it s really appropriate to try and settle this evening and therefore I d like to offer a substitute motion that item 10 be continued until September. Chair Tregub: All right. Thank you. Substitute Commissioner Carter: I ll withdraw my motion. Subsequently the chair promises to make sure the item is carried over to the next agenda in September. (He did not do so, however.) It is to the Commission s credit that at least no action was taken on this discussion but surely no reasonable person could discern from the agenda or even the full agenda packet that such a lengthy brainstorming session about creating a special fund would be a topic of discussion and negotiation among Commissioners that night. Public Records Issue at September 6, 2017 HAC meeting (approval of minutes of Special Meeting) Allegation The now published minutes of the June special meeting are false - they are missing approved amendments to the attendance record. That is not, of course, a Brown Act violation. What is of particular interest for this complaint, though, is the discussion of the minutes. This discussion took place at the September 6 meeting. 42 HAC PAGE 61

65 During this discussion, it becomes clear that in the minds of three commissioners at least Johnson, Lewis, and Wolfe the dot count procedure at the special meeting did comprise a formal and consequential form of voting. Evidence and analysis: discussion of a minutes from the June special meeting Exhibit N contains contains a hyperlink to an on-line copy of a complete audio recording of the September 6, made by me (Commissioner Lord). Beginning at 18 minutes, 10 seconds in the recording, the commission takes up the consent calendar on which is an item to approve minutes from the special meeting of June. Commissioner Lewis points out that the meeting start time in the minutes is incorrect. The Secretary concurs. At about 19 1minutes 10 seconds, this discussion takes place: Chair Tregub: Are there any other amendments you [Commissioner Lewis] would like to make? Would you like to make a motion to approve the minutes? At this point the Chair has failed to recognize me although a video of the meeting shows that I had my hand up. Commissioner Lord: Excuse me. Chair Tregub: Oh, I m sorry. You had your hand raised. Commissioner Lord: Do I recall correctly? Was Mr. Slaughter present at that meeting? Please note that the video (Exhibit E) shows that Mr. Slaughter was not present for any of the special meeting. Commissioner Slaughter: I was. Commissioner Lord: The special meeting? Commissioner Slaughter: Not the first hour. 43 HAC PAGE 62

66 Mr. Slaughter seems to mean that he was present for the regular meeting, not the special meeting. The special meeting, however, lasted approximately 90 minutes. Chair Tregub: That s a good catch. Commissioner Lord: You came in late, OK. And do I recall correctly that Mr. Tregub was also tardy? Chair Tregub: I believe I was tardy. By, I don t know, 10 minutes? Maybe someone has a better recollection. Commissioner Lewis: I remember you being tardy. Chair Tregub: I remember me going to the wrong location. Commissioner Lord: There is a published video of most of the meeting. It s missing the first couple and last couple of minutes. I wonder, Mr. Chairman, were there any recorded votes taken that night whatsoever? Chair Tregub: I don t recall taking any votes Vice Chair Wolfe: That was when we did the dots. But it wasn t dots it was people in terms of identifying. It was a way of weighting problems. Secretary Davis: No votes were taken in the special meeting. It is my contention in this complaint that while no vote was taken in a regular order, the Commission did take formal action through an irregular voting procedure. This vote is recorded in the table of dot counts promulgated by the Vice Chair. Commissioner Lord: I would like to suggest an annotation be added to the agenda and I m not sure whether it is appropriate to do that at this moment or to ask that it be pulled [from the consent calendar]. I don t mean to drag things out. Chair Tregub: It depends on what would you like to ask? Commissioner Lord: Perhaps something like: 44 HAC PAGE 63

67 Instead of the customary order, an interactive presentation or a led discussion - however you want to put it - arranged by the two chairs was held. No votes were taken. Please note that I certainly erred by suggesting no votes were taken. Commissioner Lewis: I don t think Igor really led it it was really Marian [Vice Chair Wolfe] who more delegated Commissioner Lord: Oh, I m sorry there is some off-line conversation. My understanding is the chairs cooperated to arrange the event. Chair Tregub: These tend to be action minutes, the way staff takes them. Maybe I should ask staff what your convention is. What is the level of detail that you provide? Secretary Davis: Generally I follow the same template that the Clerk uses for City Council so we only note actions. Since no actions were taken I just put the agenda items on there. Commissioner Lord: Could we have an explicit annotation that no actions were taken? As I look at it it s ambiguous. It suggests to me that there was sort of a routine order of business. Commissioner Lewis: What if we just put the results of the dot voting? I know there s a document existing with those results that could just show Please note that Commissioner Lewis also seems to feel that a formal action was taken through a non-standard voting procedure. Commissioner Lord: Is that a question for me? Commissioner Lewis: I m proposing a way to get that because that was kind of an action. Commissioner Lord: My concern is that I would like to make sure it is explicit in the record that there was no vote to approve the agenda, there was no vote to adjourn; that business did not proceed according to the customary order. That s my only concern. How we characterize what did happen is not my primary 45 HAC PAGE 64

68 concern. Commissioner Tregub: I don t have an objection to including the statement No actions were taken, if other colleagues also don t have an objection. Vice Chair Wolfe: As long as its one statement and that s it, that s reasonable. Commissioner Lord: That would satisfy me. Commissioner Johnson: My question, then, is what functional role did the dots that we In what follows, the Vice Chair interrupts Commissioner Johnson to answer the incomplete question. Please consider how Vice Chair Wolfe describes the special meeting. In particular, does she not describe the Commission having taken formal (if irregular) action? (Approximately 23 min, 20 seconds into the audio recording.) Vice Chair Wolfe: It was! It was carried over to the next meeting and it gave you documentation of the counts and then we used that to talk about uh in the July meeting. Well, let s keep. Chair Tregub: So would anyone like to make a motion? At that point the Consent Calendar, including the special meeting minutes as amended, passed. The minutes as subsequently published do include the annotation No actions were taken at this meeting but they do not include the amendments to the attendance record. Violation at September 6, 2017 HAC meeting (work plan adoption) Allegations At the September 6 meeting, Vice Chair Wolfe agendized a table that summarized, in some sense, the un-agendized discussions from the June special meeting and the July regular meeting. 46 HAC PAGE 65

69 She asked that this table be adopted as the work plan. This is the first Brown Act violation on this item: by voting to adopt this table as a work plan, the Commission unambiguously transformed the fruits of previous, extensive unagendized discussions into the fiscal-year agenda for the Commission. Additionally, there was a second violation: On the agenda, the Chair and Vice Chair bizarrely combined a separate item of mine with Vice Chair Wolfe s. At the meeting, the Chair refused - over my objection - to allow the two independent items to be considered separately. This compelled me to withdraw my item. To be clear: The item from the Vice Chair concerned adopting her table as the work plan. The item from me (Commissioner Lord) concerned planning for a better work plan process next year. These are seemingly independent recommendations - neither is an alternative to or sensible modification of the other. Nevertheless, the Chair improperly forced my item from being taken up, by insisting over my objection that it was a not separate matter, but that the two were alternatives. In that way, the Chair unilaterally suppressed a portion of the agenda, during the meeting. Evidence and analysis: discussion and vote on work plan The work plan discussion begins around 1 hour, 4 minutes, 30 seconds in the audio recording (Exhibit N). First, Vice Chair Wolfe offers her table (Exhibit O) for adoption as a work plan. Vice Chair Wolfe: We are turning to page 8. OK. What you see before you is just a two pager. It s basically the table I created at 47 HAC PAGE 66

70 the end of our last work plan meeting. Which took our prioritized problems, listed them, and then we identified some strategies that were suggested at the meeting. Please note: the Vice Chair s open discussions of unagendized City policy ideas has halted, mid-way. Her proposition now is to memorialize as much of what got done as a work plan. The Vice Chair continues: All are verbatim, what was provided. This is simply false. Exhibit P contains a transcript of what I said at the June 6 meeting. It stands in sharp contrast to what, in the agenda packet, the Vice Chair reported that said. On HAC Page 9 (of Attachment 4 ) of the September packet (Exhibit O) can be found what the Vice Chair wrote about what I said. Continuing with the transcript: and then at the end we are proposing to create or continue three subcommittees. That would be: low income, moderate income, and student housing. This complaint will address the nature of these subcommittees whether or not they are in fact Brown Act standing subcommittees later. Some portions of the transcript here will be relevant to that later analysis. They would be meeting separately and then reporting back with regards to priorities and how we would implement the strategies, or try to. It s a big task to try to do some of these so you go one step at a time and I think I [inaudible] the moderate income subcommittee recommendations that came out of all the work we did a year ago. In any event, I ll stop talking here. Then Tom had some stuff he wanted to do research on which didn t lend itself to the same idea of a problem / strategy approach. It s more, I would call it, research and looking at items outside the box. 48 HAC PAGE 67

71 In the preceding, aside from mis-characterizing and denigrating my own suggestions for Commission activities, the Vice Chair has made it clear that the purpose of the work plan discussions in June and July was to lay out the list of housing policies to recommend to City Council ( reporting back with regards to priorities and how we would implement the strategies ). The fact that the Vice Chair does set aside my suggestions for Commission activity, and the way she does so, further reinforces this interpretation. My suggestion of commission activities which are not, ahead of time, commitments to any particular housing policy or policy strategy is described by the Vice Chair: stuff [.] which didn t lend itself to the same idea of a problem / strategy approach. It s more, I would call it, research and looking at items outside the box. It is also noteworthy that in her work plan proposal, the Vice Chair has simply dropped all discussion or consideration of two problems in her own table. These are: Lack of Funding - Insufficient Local funding, given proposed Federal budget cuts Homelessness / Displacement Since these two problems from the Vice Chair s own problems / strategies chart seem to comport to her work plan scheme, it is unclear why she would quietly drop them from the actively planned work of the commission while, at the same time, going out of her way to treat my own proposals for Commission activity in an overtly denigrating manner. Violation at September 6, 2017 HAC meeting (formation of standing subcommittees) Allegation At the September 6 meeting the HAC formed Brown Act standing subcommittees subordinate legislative bodies. 49 HAC PAGE 68

72 These commissions were given a broad subject matter jurisdiction, no specific reporting requirement, and no specific charge. They can not, reasonably, be considered special purpose, ad hoc, temporary subcommittees as the Brown Act defines them. Forming standing subcommittees exercised a power that Berkeley Commission are specifically denied. Since these subcommittees may be unstaffed by any City of Berkeley employee, the potential for still further Brown Act violations looms large. Evidence and analysis: subcommittee rules and the Commission s action Berkeley Commissions may not form standing subcommittees Berkeley Commissions are specifically prohibited from creating Brown Act Standing Subcommittees. In other words, Commissions may not form subordinate legislative bodies. The City allows ad hoc subcommittees of Berkeley Commissions to hold public meetings, so long as the ad hoc subcommittee conforms its conduct to Brown Act meeting requirements. (This is a kind of a belt and suspenders approach to Brown Act conformance.) These rules can be found in the Commissioners Manual. From Chapter II, section C ( Commission Organization ), subsection 5 ( Temporary Subcommittees ): From time to time the commission or the chairperson, with the confirmation of the commission, may appoint several of its members but fewer than the existing quorum of the present body to serve as a temporary subcommittee. Only commission members may become members of the subcommittee, however, the subcommittee shall seek input and advice from the residents, related commissions, and other groups. Subcommittees must be reviewed annually by the commission to determine if the subcommittee is to continue. Please consult Chapter IV for noticing and agenda requirements applicable to subcommittees. All City of Berkeley commission subcommittees are considered ad hoc 50 HAC PAGE 69

73 single purpose committees. Upon creation of the subcommittee, the parent body shall allow it to operate with the following parameters: [.] 1. A specific charge or outline of responsibilities shall be established by the parent body. 2. A target date must be established for a report back to the parent body. 3. Maximum life of the subcommittee shall be one year, with annual review and possible extension by the parent body. The HAC formed standing subcommittees At the September 6 meeting, the chairs appointed members to four subcommittees which have broad subject matter jurisdiction was derived from work plan table (itself the fruit of more than two hours of prior, unagendized housing policy discussions). A partial transcript, with interspersed analysis of the subcommittee discussion follows. The audio recording is found in Exhibit L, and the transcript begins at approximately 1 hour, 32 minutes, 45 seconds. Almost immediately, before the commission appointment item is even introduced, Vice Chair Wolfe demonstrates a degree of inattention to Brown Act Constraints: Chair Tregub: So the next item is appointment of subcommittees Commissioner Lewis: Can I ask a question before we start? It s about subcommittees. Chair Tregub: Well I was going to introduce the item but if you have a question Commissioner Lewis: Yes. I m not on every subcommittee but I thought about the topics I like, and I don t want to overwhelm myself. 51 HAC PAGE 70

74 Note that Commissioner Lewis already understands the jurisdiction of the subcommittees to be topics rather than specific tasks. He continues: How many is too many subcommittees particular if somebody is I m going to chair one of them. Note that Commissioner Lewis has no basis for asserting he will chair any subcommittee that has not yet elected a chair. There is some appearance that a meeting including Commissioner Lewis has taken place outside of public view. There s four that I m kind of into and I was going to maybe limit myself to three or limit myself to four. Chair Tregub: Yeah, I will let Marian answer part of it but this actually speaks to how I was going to introduce the item as well, so maybe I can do that. I m going to refer you to page 57 of the packet first Here, the Vice Chair demonstrates her lack of attention to basic Brown Act considerations: Vice Chair Wolfe: The short answer is even if your not on a subcommittee that doesn t mean you lose your voice. So, you don t need to be on a subcommittee to show up. Chair Tregub: You can show up, actually you can t show up as the fifth member. Vice Chair Wolfe: Oh, that s right. Chair Tregub: But nothing moves directly from the subcommittee to the Council. Everything comes to the HAC. The chair commences introducing the item: On page 57 staff did a really great job putting together a matrix. These are the existing subcommittees. Obviously we ve had quite a few new commissioners which has modulated the need to repopulate some of the subcommittees based on level of interest. That statement by the chair is only sensible if the subcommittees needing repopulating are standing subcommittees with ongoing jurisdiction over broad subject matters in which members of the HAC might have interest. 52 HAC PAGE 71

75 The Commission Secretary tries to help: Secretary Davis: I just want to make a comment, just for context on forming subcommittees: The HAC only has the ability to form ad hoc subcommittees so they all have to have a specific charge and a time limit. Unfortunately, the Secretary s advice is a bit ambiguous: I m recommending that you maybe appoint all the subcommittees to, maybe, a time frame of the current fiscal year to run concurrent with your work plan? And to give them the charge of maybe working on the things that are on the work plan. What is not clear in that advice is that subcommittees must have a specific purpose and that the time limit is a time limit for reporting back specifically in relation to that purpose. It is also problematic that, in this case, the work plan comprises the fruits of earlier unagendized policy discussions. The Secretary continues: So you have had a low income housing and a moderate income housing subcommittee and you re free to appoint the same people but I would say that you re basically appointing a new ad hoc subcommittee. But this [the table provided by staff] reflects what has been the case. And the Housing Trust Fund subcommittee, I believe, was convened in the spring? So it still has some more time left. Commissioner Lewis is surprised to learn about this limit on Berkeley Commission powers: Commissioner Lewis: Is it normal for commissions to only be authorized to make ad hoc committees? Secretary Davis: It s true of all the Berkeley Commissions. Chair Tregub: Other than, like, the Design Review Committee which is technically a subcommittee of a commission. So I wanted to just introduce the item and then I m happy to entertain any questions. 53 HAC PAGE 72

76 Chair Tregub, bizarrely, describes the staff s Brown Act advice this way: Part of the reasons I wanted to do all of the assignments at once is for specifically what staff has already mentioned: It s good to have a sense of load leveling and balance. And continues: With that said: There are going to be several buckets of commissions [sic] and there s going to be a specific order in how I m suggesting we take up these appointments. But I wanted to say off the bat that the order is no way necessarily a reflection of the importance of each subcommittee. They re just different buckets. Note: HAC subcommittees will not be assigned specific tasks. buckets. The first one is the Measure U1 subcommittee. They are Please note: there is nothing at all in the Agenda Packet which gives any indication what the specific purpose of the U1 subcommittee is to be, what it is to report back, or when. The reason we wanted to take it up first is that I realize that s probably a subcommittee that has a lot of interest among commissioners. Based on who fills it, I m hoping that - because unfortunately there can be no more than 4 members to a subcommittee - that we would be generous so that someone who doesn t get on U1, if they want to, will have an opportunity to get on a different subcommittee. The preceding comment by the chair is particularly damning. It reveals, unambiguously, that not only does he regard the subcommittees as having broad subject matter discretion, but, in addition, membership on these standing subcommittees represents a power struggle among commissioners. Skipping forward slightly (omitting some of the transcript), there is some discussion as to the purpose of the subcommittees: Chair Tregub: Tom had a question and then Matthew. Commissioner Lord: I m sorry please proceed. The point of my question was mooted. I was going to clear up for Matthew 54 HAC PAGE 73

77 the legal distinction between ad hoc Commissioner Lewis: Oh, I know the legal distinction. Commissioner Lord: Yeah. I think the City basically has a notion of a sort of belt and suspenders approach. We re really supposed to have this single purpose subcommittees. Frankly, those don t always require a formal action. But, the City privileges us to establish to establish such committees that also have public meetings. I don t understand the specific purpose of several of these. Chair Tregub: Would you like to ask now? Commissioner Lord: Why don t you proceed. I assume that as we get to each subcommittee that will be explained? Is there a problem with that assumption? Chair Tregub: Yes, that s yeah although we should probably re-clarify the purposes; we do have some new members of the commission tonight, and also some questions from at least one commissioner. Matthew? Commissioner Lewis: My question is: you mentioned we were going to be doing the low income housing but that one already has four commissioners on it. Vice Chair Wolfe: This is what had been. We re starting new This is what is. Commissioner Lewis: Oh, we re starting new so like my appointment to HTF, for instance is up in the air. At this point, the Secretary points out that the chair s proposal to re-appoint the HTF is not even on the agenda. Secretary Davis: I would say the HTF is not on the agenda and was convened in the spring. I would suggest agendizing Chair Tregub: Oh, that s right. HTF is the only one that s not a tabula rasa right now. Vice Chair Wolfe: We ll also do CDBG today? 55 HAC PAGE 74

78 Secretary Davis: CDBG is on the agenda. On the agenda you also have low income housing, moderate income housing, student housing, CDBG, and Measure U1. The Chair again speaks of the subcommittees as standing committees, subject only to annual re-constitution: Chair Tregub: My only request is that the four people who are on HTF right now - that is the only subcommittee that is not a blank slate - their work plan will continue. I would hope that if members of the HTF subcommittee decide to also be on the CDBG subcommittee they give first dibs to someone who is not currently a member of HTF subcommittee. We can vote however you like. Technically the process of appointing subcommittees says is that the chair makes appointments [sic] with the approval of the entire commission. Obviously, for me, it would be pertinent to get the approval of the full commission so it would, in effect, be a vote. Discussion now turns to the purpose of the U1 subcommittee: What I was going to entertain now is that we go through the process of each bucket. And I m happy to explain are there questions on the purpose of the U1 subcommittee? Commissioner Lord: Yeah, is there a sort of charter or outline for it single purpose? Please note what the chair says: Chair Tregub: It is single purpose but its true that there is no specific definition of that purpose. Apparently, the subcommittee will have a singular but undefined purpose whatever that means. My understanding of the charge of the U1 subcommittee based on how the U1 measure was written several of us, Matthew, myself, Marian participated on the U1 task force that wrote the measure is that the HAC would make recommendations on projects that may potentially use funding some of which may come from 56 HAC PAGE 75

79 revenues that were part of the U1 measure. I m trying to be really careful giving the advice from Zach how its later on in the packet. The U1 subcommittee could do one or two things or both. It could come up with broad guidelines of how the U1 color of money could be allocated by council, which is sort of, for those of you who weren t here last month, was the item Luis and I have on U1 allocations or that was a recommendation from this body for some of that to go into anti-displacement efforts that could be part of the task of the U1 subcommittee to make those types of recommendations. It could be even more general than that. What percentage of whatever is received from U1 revenue as a guideline to Council to be used for various purposes be it antidisplacement or providing new affordable housing or, you know, anything else that is germane to that. And it could talk about specific projects? But keep in mind that many of the projects coming before us that come to us in that fashion have just passed before the HTF because they are looking to use HTF funds. The Chair then makes a very clear statement that this is a standing subcommittee: Is there anyone who would like to add to that? That s my interpretation but it will actually really be up to the subcommittee to decide what it s charge is. The Vice Chair ways in: Vice Chair Wolfe: I would only say: this is a future flow of money, it doesn t start till 2018 Chair Tregub: That s correct. Vice Chair Wolfe: and we already have recommendations, I think have been passed, that $300,000 will be used annually for an anti-displacement or a rent help and all of that. So it s a limited pot of funds and assuming we don t borrow against the future flow of revenue. Its more, I see, visionary and this is how we would like to see money and then if you say it should be affordable housing then when the hack would discuss a project that comes up to apply for the funds and give recommendations. So it s both visionary as well as practical, but in the short run 57 HAC PAGE 76

80 it will be sort of an overview recommendations because we don t really have the money. And the Premier Cru thing is still kicking around. So its going forward but its not like CDBG where there s money that will be handed to the City tomorrow. Please note: Measure U1 created general fund revenues and no designated flow of money subject to allocation. Nevertheless, the revenues resulting from U1 are frequently subject to that notional treatment, that they are special purpose revenues. In that context, the Vice Chair as well proposes a subcommittee with broad subject matter jurisdiction, both visionary and practical. The Vice Chair is a board member of Resources for Community Development, a non-profit organization which competes for City housing funds. Chair Tregub: Does that answer your question, Tom? Commissioner Lord: As much as it will be answered, I think. Chair Tregub: [laughing] OK. So the way that we could go about this that I would recommend is, unless there are objections, I wanted to ask anyone who would like to serve on the U1 subcommittee to raise their hands. [.] A U1 subcommittee was then appointed. Skipping ahead to around 1:48:30 Secretary Davis: Um, I m going to include in the minutes sort of a description of the direction that s given to the subcommittee because that s part of having an ad hoc subcommittee. For the other committees you have something in your work plan. For this one I made a note that its for guidelines or recommendations for the U1 funds, providing advice to council on anti-displacement, and affordable housing programs, and possible discussion of specific projects to be funded with U1. I just want to make sure you re all OK with that? Chair Tregub: Yeah, that s fine. The low income, moderate income, and student subcommittees are appointed without specifying any specific purpose or reporting requirement. 58 HAC PAGE 77

81 At a certain point, the Chair reiterates the open-ended proposes of these subcommittees. In this instance, he specifically contradicts even the advice from the Commission Secretary. At about 1:57:30, the Student Housing subcommittee is taken up: Chair Tregub: Last but not least is student housing. Anyone interested? Kieron. [The Chair has called on Commissioner Slaughter.] Commissioner Lewis: I would like to have a committee for.. I want to have a bunch of folks who are current or recent graduates of UC Berkeley sorry of UC Berkeley or BCC is my goal. Chair Tregub: I would think that Gissell [Commissioner Vasquez] might be interested and we can offer her Commissioner Lewis: But if we don t have tons of people jumping over each other to do that then I m more than happy to have. So. Chair Tregub: Well, I are you interested, Luis? Commissioner Amezcua: Yes, but what s the scope? It s very broad. Chair Tregub: It s kind of a new subcommittee and I think, maybe, Matthew [Commissioner Lewis] you re most interested in talking about Commissioner Lewis: Yeah, I would also like to say that is my intention to invite some representatives of the ASUC to sit at the table during this to sit at the table as non-voting members. Commissioner Tregub: Let s talk about that because unfortunately that might be in conflict with City rules. But they re always welcome to participate as members of the public. Staff, would you like to issue an opinion on that? Secretary Davis: We could talk more about, in detail, what specifically you re proposing but usually the commissioners meet to have their discussion and their just the public making public comment but nothing stops you from having a member of the public kind of do a presentation, having a discussion with them. 59 HAC PAGE 78

82 Commissioner Lewis: So, I m sort of trying to look at some precedent of city bodies having a child body of a parent So, like the council has a subcommittee that has members who are not members of the City Council, for instance. So there is precedent. Please note that Commissioner Lewis is describing a Brown Act standing subcommittee. The chair interrupts about the shortness of time. Commissioner Lewis continues: We can table this. I want to make sure there is the ability, legally to do that while we re chartering it. Chair Tregub: That is something I don t think anyone can commit to that right now. Commissioner Lewis: OK, so, The Secretary returns to the question of the subcommittee purpose, although what she has to say has no relation to the discussion between Commissioner Lewis and the Chair: Secretary Davis: In response to Luis [Commissioner Amezcua] question I just wanted to say there s the strategies on the work plan that are related to student housing? So I thin that would be the charge Chair Tregub: Yeah. Commissioner Lewis: Is that the only part we would be able to work on? Chair Tregub: You get to pick your charge. Commissioner Lewis: YEAH! Secretary Davis: This commission is supposed to provide direction to the subcommittee, so that a subcommittee can take these items, go back, and say, you know, we looked at this and now we re recommending to the HAC and now we d like to change our charge and also look at this other item that s not on the list, is this OK? And then the Commission can provide guidance. 60 HAC PAGE 79

83 The chair goes out of his way to sweep aside the Secretary s advice: Chair Tregub: But student housing is pretty expansive. You couldn t look at something beyond student housing. Commissioner Lewis: OK. I just want to make sure it doesn t have to be a student housing issues explicitly listed. Chair Tregub: Thank you. Tom? Commissioner Lord: So it s a broad subject matter? Vice Chair Wolfe: It s housing for students. Chair Tregub: That s my understanding. It can be as broad as you would like it to be. Commissioner Lord: So it s a standing committee, essentially. Chair Tregub: Yeah. OK, so I have Kieron, Matthew, Gissel The chair begins to enumerate who will be on the subcommittee but is interrupted by a question from Commissioner Johnson: Commissioner Johnson: I m pointing out that the reason he s asking that question is specifically because its so broad that it undermines a clear direction and charge so you might want to clarify Commissioner Amezcua: Well, but it s this Commissioner Lewis: Wait, that is my concern. What do you have in front of you? Commissioner Amezcua: The strategies we agreed to tonight. Commissioner Johnson: I m just reaffirming that we probably should limit it to those strategies Commissioner Johnson: So if you have one, you can always bring it as an agenda item to the Commission, While Commissioner Johnson has made a clear effort to achieve Brown Act conformity, the Chair steps in to stop him. 61 HAC PAGE 80

84 Chair Tregub: I m a little hesitant to impose additional constraints, personally, because like what we found being part of the moderate income subcommittee [last year] came up with a lot of different strategies, some of which were really good, and were very out of the box around moderate income. Secretary Davis: I think the difference in that situation was that the HAC said to the moderate income subcommittee that we want you to investigate the issue of moderate income housing and identify potential strategies and come and report to us back on the strategies. So in this case you just adopted a work plan that included these different student housing strategies that you wanted to look at. As the HAC you need to provide a charge to the subcommittee on what they re supposed to do. Chair Tregub: OK. So, why don t we provide a charge then to first investigate the strategies that are outlined in the work plan and then if you come up with - if you want to work on something beyond that - just come up to us and ask for permission to work on other student housing related issues. For reference, the strategies are the fruits of the unagendized policy discussions held and acted upon in June and July. They are recorded as: Encourage more student co-ops. Treat the half-mile zone around UC Berkeley as if it were a transit corridor area, i.e., relaxing parking requirements and allowing higher densities. Establish a prohibition against the use of rental units near campus as short term rentals. Establish a dialogue between the City and the University regarding the need for student and faculty housing. Encourage co-ops to maintain year-round affordability requirements. Streamline permitting process for new rental development, if there is an MOU between the developer and the City that the housing will be available for students (and faculty)? Educate students about rent control and Costa Hawkins. 62 HAC PAGE 81

85 The Chair continues: I see Luis [Commissioner Amezcua] and Matthew [Commissioner Lewis]. Commissioner Amezcua: I asked the question just so that we d narrow the mission of the subcommittee. I don t think that would preclude anyone from bringing in an item that s relevant to that particular subcommittee, should something come up. But I think our main focus should be what we agree to. Please note: So speaking Commissioner Amezcua confirms that in his mind, the strategy discussion in July comprised a formal action on various unagendized policy ideas which, at this meeting in September, are cemented as the policies the HAC will concentrate on. Chair Tregub: That s fair. Matt? Thanks for that comment, Luis. Commissioner Lewis: I would actually want the scope, instead of right column of strategies, to be the lack of affordable housing [for students]. Part of the reason why I really want to use this subcommittee more as.. I would like to see the subcommittee meeting on the UC Berkeley campus in order to, instead of at the South Berkeley Senior Center, an area where students can actually access the meeting, so they can give their input. Chair Tregub: It just says public - a place that s ADA accessible and open to the public, right? Vice Chair Wolfe: Do it on Telegraph at Peet s, that s what I ve been doing. Chair Tregub: I think for those process questions, those are really excellent questions for staff. Commissioner Lewis: OK. I will as much as I want to gung ho on everything for our next HAC meeting I m pushing this back. Talking off-line with staff. Chair Tregub: Thank you. We appreciate it. The Chair appoints the subcommittee. 63 HAC PAGE 82

86 Brown Act Analysis of the Subcommittees In its relevant portion, the Brown Act defines a standing subcommittee this way (Government Code 54952(b): (b) A Commission, committee, board, or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter. The Student Housing subcommittee (and the others related to the work plan) were created by.. formal action of a legislative body. Do the subcommittees formed this night qualify for the exception? They are advisory subcommittees. They are composed solely of the members of the legislative body. They are less than a quorum of the legislative body. To not be standing subcommittees, they must pass one last test: except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter. The subcommittees established at the September meeting do not have a fixed meeting schedule. The question comes down to this: Do the lower income housing, moderate income housing, U1, and student housing subcommittees have a continuing subject matter jurisdiction? The discussion transcribe above makes it clear that the U1 subcommittee s 64 HAC PAGE 83

87 purpose extends to any recommendation relevant to U1 revenues. That is clearly a continuing subject matter jurisdiction. The discussion above shows that the HAC did try vaguely to limit the scope of the low income housing, moderate income housing, and student housing subcommittees to the list of policy ideas in the adopted work plan (a list of policy ideas that are themselves the fruit of Brown Act violations). Is that supposed limitation of scope credible? The Chair s comments again and again stress that the subcommittees are to decide their own mission or agenda. Commissioner Amezcua remarked that nothing in the limitation of scope prevents bring any relevant item. The Chair describes the Student Housing subcommittee as limited to student housing. The Commission appears to agree to a scheme for arbitrarily expanding the scope of any subcommittee, at that subcommittee s request, on the basis of discussion already held by that subcommittee. Every indication is that these subcommittees have no specific purpose but are, in fact, granted continuing subject matter jurisdiction. The HAC lacks the authority to create such Brown Act standing subcommittees. In the alternative, if the scope of these subcommittees is suitably limited, they are limited to a scope which is itself the fruit of unagendized policy discussions a Brown Act violation. Cure and Correct Demand September 22, 2017 To: Chair Igor Tregub, Vice Chair Marian Wolfe, Commissioner Luis Amezcua, Commissioner Xavier Johnson, Commissioner Rush Kesarwani, Commissioner Matthew Lewis, Commissioner Thomas Lord, 65 HAC PAGE 84

88 Commissioner Kieron Slaughter, City of Berkeley This letter is to call your attention to what I believe were substantial violations of central provisions of the Ralph M. Brown Act, one which may jeopardize the finality of the actions taken by the Housing Advisory Commission ( HAC ). Briefly stated, the nature of the violations is as follows: At its June 1, 2017 special meeting, the HAC set aside its agenda to hold an open-ended policy discussion among Commissioners and voted to rank in priority various policy concerns introduced at the meeting. The public did not have the opportunity to comment on the issues that would be discussed. The public did not have the opportunity to put forward alternatives for consideration. Also at the June 1, 2017 special meeting, regular order so devolved that the full commission was chatting freely among themselves about policy concerns, in the presence of but out of earshot of the public who were present. On June 8, 2017, the Vice Chair wrote lobbying , encouraging commissioners to consider various policy ideas she herself had helped to develop. At her direction, the Commission Secretary sent this lobbying to all commissioners. Subsequently, the call for agenda items went out. Collectively, these actions have the effect of a serial meeting of the full commission, without notice to or participation from the public. Between June 8, 2017, and July 6, the Commission executives and Commission Secretary exchanged s with Commissioner Lord concerning his allegation of a possible Brown Act violation. Commissioner Lord proposed means by which to cure and correct the violation. The Commission executives did not, within 30 days, reply with their decision to comply with the demand or refuse it. At its July 6, 2017 regular meeting, remarkably, the HAC again set aside portions of its agenda to, instead, have open ended policy spit-balling discussions among Commissioners. During these discussions commissioners agreed among themselves where the legislative attention of the HAC would be focused in the coming year. The public had no opportunity to comment on the policy proposals put forward nor to offer alternatives. 66 HAC PAGE 85

89 At its September 7, 2017 meeting, the Commission agendized a Discussion and adoption of a work plan. The Commission adopted as its work plan a memo from Vice Chair Wolfe which contains none of the elements of a work plan as defined and directed by the City of Berkeley (Council resolution titled Commission Work Plans adopted on the Consent Calendar by City of Berkeley City Council on July 19, and as reported to the HAC in its own April 6, 2017 agenda packet.) Furthermore, the work plan adopted is the fruits of the unagendized free-for-all discussions and unrecorded voting that took place in June and July. Also at its September 7, 2017 meeting, the Commission exceeded its powers by establishing what are, in the eyes of the Brown Act, standing subcommittees with a broad subject matter jurisdiction. These subcommittees are: the U1 subcommittee, the lower income housing subcommittee, the moderate income housing subcommittee, and the student housing subcommittee. Also at its September 7, 2017 meeting, the Commission adopted meeting process guidelines which the Chair began applying as rules that explicitly discourage Commission referrals except through the improperly formed subcommittees, and that severely limit the possibility of debate or discussion of alternatives at future meetings. The actions taken were not in compliance with the Brown Act because, in part, they occurred as the culmination of a discussion in a de facto closed session at the June special meeting of a matter which the Act does not permit to be discussed in closed session, and, there was no adequate notice to the public on the posted agendas for each of the meetings where the matter acted upon would be discussed, and there was no finding of fact made by the Housing Advisory Commission that urgent action was necessary on a matter unforeseen at the time the agendas were posted. A longer and more thorough presentation of the alleged violations can be found in the attached complaint to the City of Berkeley Open Government Commission. In the event it appears to you that any of the aforementioned conduct of the Housing Advisory Commission did not amount to the taking of action, I call your attention to Section , which defines action taken for the purposes of the Act expansively, i.e. as a collective decision made by a majority of the members of a legislative body, a collective commitment or 67 HAC PAGE 86

90 promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. As you are aware, the Brown Act creates specific agenda obligations for notifying the public with a brief description of each item to be discussed or acted upon, and also creates a legal remedy for illegally taken actions namely, the judicial invalidation of them upon proper findings of fact and conclusions of law. Pursuant to that provision (Government Code Section ), I demand that the Housing Advisory Commission cure and correct the illegally taken action as follows: 1. Rescind the vote to adopt a work plan and, instead, work within the constraints of the Brown Act to adopt a work plan of the form directed by City Council in its July 19, 2016 resolution. 2. Rescind the establishment of the U1 subcommittee, the low income housing subcommittee, the moderate income subcommittee, and the student housing subcommittee. 3. Affirm that the related meeting process guidelines adopted in September are not rules and confer no new powers to the chair. In particular, that the chair may not use these guidelines to impose restrictions on discussion and debate, including prematurely cutting off any Commissioner, nor call for votes to extend starting at 9PM. Nor may the Commission executives treat Commission referrals from any subcommittee preferentially to referrals from other sources in their capacity as presiding officers. As provided by Section , you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to Section , in which case I would also ask the court to order you to pay my seek court costs and reasonable attorney fees in this matter, pursuant to Section Respectfully yours, 68 HAC PAGE 87

91 Thomas Lord cc Prayer for relief from the Open Government Commission I appeal to the Open Government Commission with particular attention to its jurisdiction to (emphasis added): In particular: b. consider ways to informally resolve those complaints and make recommendations to the Council regarding such complaints; I ask the Open Government Commission to help the Housing Advisory Commission and me as the complaintmaker assess the Brown Act Issues in these events to recommend that what appear to be standing subcommittees be dissolved, and to suggest ways to stay clear of a bright line distinction between temporary, specific purpose ad hoc subcommittees - and Brown Act standing committees. to help the Housing Advisory Commission develop a plan for educating members about Brown Act requirements, and for putting the good faith effort of the Commissioners back on a track that is more certainly in clear compliance. Housing policy questions loom large in Berkeley these days. The Housing Advisory Commission s role in helping to develop and advance policy is more vital than ever, in light of today s various housing crises. Please take into careful consideration how the irregular behavior of the HAC around the work plan question has biased and constrained possible policy work by the HAC, and in the process, excluded the public from some very important legislative questions. 69 HAC PAGE 88

92 Exhibit A: Excerpts of the April 4, 2017 HAC Packet Document separately attached to complaint. Exhibit B: Agenda Packet for June 1, 2017 HAC Special Meeting Document separately attached to complaint. Exhibit C: Unmodified Version of page from packet for June 1, 2017 HAC Special meeting Document separately attached to complaint. Exhibit D: Cover letter from Commission Secretary for modified June 1, 2017 packet Document separately attached to complaint. Exhibit E: Video of the June 1, 2017 special meeting of the HAC This video recording of the meeting was made and published by Berkeley resident Christine Schwartz. The video is split into two parts HAC PAGE 89

93 Exhibit F: Transcript of Vice Chair s introduction at special meeting Document separately attached to complaint. Exhibit G: Vice Chair s to the full commission, sent June 8, 2017 Document separately attached to complaint. Exhibit H: Commission Secretary s cover letter for Vice Chair s June 8, Document separately attached to complaint. Exhibit I: Commissioner Lord s to Commission Secretary, June 8, 2017 Document separately attached to complaint. Exhibit J: Reply to Commissioner Lord s from Commission Secretary, June 8, 2017 Document separately attached to complaint. 71 HAC PAGE 90

94 Exhibit K: Excerpts of July 6, 2017 HAC agenda packet Document separately attached to complaint. Exhibit L: Published Minutes of the June 1, 2017 HAC special meeting Document separately attached to complaint. Exhibit M: Audtio Recording of July 6, 2017 HAC regular meeting This recording was made by me, Thomas Lord (HAC Commissioner). Exhibit N: Audtio Recording of September 7, 2017 HAC regular meeting This recording was made by me, Thomas Lord (HAC Commissioner). Exhibit O: Vice Chair Wolfe s September 7, 2017 work plan memo Document separately attached to complaint. 72 HAC PAGE 91

95 Housing Advisory Commission HOUSING ADVISORY COMMISSION AGENDA Regular Meeting Thursday, April 6, :00 pm All agenda items are for discussion and possible action. NOTE change: North Berkeley Senior Center 1901 Hearst Avenue Secretary Amy Davidson, (510) Public comment policy: Members of the public may speak on any items on the Agenda and items not on the Agenda during the initial Public Comment period. Members of the public may also comment on any item listed on the agenda as the item is taken up. Members of the public may not speak more than once on any given item. The Chair may limit public comments to 3 minutes or less. 1. Roll Call 2. Agenda Approval 3. Public Comment 4. Approval of the March 2, 2017 Meeting Minutes (Attachment 1) 5. Discussion and Possible Recommendation to Council on the Purchase of Premier Cru Properties and the Use of U1 Funds All (Attachment 2) 6. Discussion of Role of the HAC with New Mayor and Council - All (Attachment 3) 7. Planning for Process to Create Annual Work Plan Marian Wolfe (Attachment 4) 8. Update on Councilmember Bartlett s Community Group Working on Promoting More Accessory Dwelling Units (ADUs) Kathy Crandall 9. Update on Mayor s Community Groups on Housing Marian Wolfe 10. Low Income Housing and Housing Trust Fund Subcommittee Appointments All 11. Update on Council Items All/Staff a. Oregon Park Senior Apartments (February 28) (Attachment 5) b. Issue an RFP to Develop a Specific Housing Project (March 28) (Attachment 6) c. Addressing Berkeley s Homeless Crisis: The Pathways Project (April 4) 04_Item_27_Addressing_Berkeley%E2%80%99s_Homeless_Crisis_The_Pathways_Project.aspx d. HAC s Safe and Affordable Housing report (April 25) e. HAC s Housing Priorities (April 25) 12. Announcements / Information Items a. Rent Board report, Administrative Powers of Zoning Officer (Attachment 7) 13. Future Items all items and dates are tentative a Work Plan (June) 14. Adjourn ATTACHMENTS 1. Draft March 2, 2017 Meeting Minutes 2. Acquisition of Real Property at 1001 University Avenue, 1007 University Avenue, 1011 University Avenue, and 1925 Ninth Street 2180 Milvia Street 2nd Floor Berkeley CA Tel TDD: Fax: housing@ci.berkeley.ca.us HAC HAC PAGE Page 92 1

96 Housing Advisory Commission Regular Meeting April 6, 2017 Page 2 of 2 3. Thomas Lord, The role of the HAC in recent Council items 4. Clerk s memo, Council item on work plans, sample work plan 5. Excerpt from February 28, 2017 Annotated Council Meeting Agenda 6. 3/28/2017 Council report on issuing an RFP for housing development 7. Rent Stabilization Board report, Administrative Powers of Zoning Officer This meeting is being held in a wheelchair accessible location. To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at (V) or (TDD) at least three business days before the meeting date. Please refrain from wearing scented products to this meeting. Written material may be viewed in advance of the meeting at HHCS, 2180 Milvia Street, 2nd Floor, during working hours. Communications to Berkeley boards, commissions or committees are public record and will become part of the City s electronic records, which are accessible through the City s website. Please note: addresses, names, addresses, and other contact information are not required, but if included in any communication to a City board, commission or committee, will become part of the public record. If you do not want your address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the secretary of the relevant board, commission or committee. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the secretary to the relevant board, commission or committee for further information. HAC HAC PAGE Page 93 2

97 HAC 4/6/2017 Attachment 4 City Clerk Department March 3, 2017 To: From: Commission Secretaries Mark Numainville, City Clerk Subject: Commission Work Plans Council Item from 2016 This is a reminder regarding the requirement for annual commission work plans. In 2016 the City Council approved an item that directs Berkeley Commissions, with the exception of the Board of Library Trustees, the Zoning Adjustments Board, and the Design Review Committee, to submit a workplan to the City Council at the beginning of each fiscal year. Some commissions currently produce a workplan on a regular or semi-regular basis. This is a best practice that aligns with the direction given in the Commissioners Manual. For more information, please see the attached agenda item and the relevant excerpt from Chapter V. Section A. of the Manual. Please agendize this topic for discussion by the commission and inform the members that they must take all steps needed to meet this direction. As stated in the Commissioners Manual, it is the responsibility of the commission members, not staff, to draft the content of reports to Council. This responsibility includes drafting the content of the work plan. This task cannot be delegated to the commission secretary or other city staff. Please contact me directly if you have any questions. Enc. cc: Department Heads HAC PAGE Page 17 94

98 A. Work Program A. WORK PROGRAM CHAPTER V. COMMISSION PROCEDURES 1) Development of a Work Program Many commissions find it effective to establish a yearly work program or statement of goals. A work program is a planning document that specifies how and when the objectives (outcomes) which the commission expects to accomplish during the fiscal year will be achieved. Goal statements explain the nature and scope of the work to be performed and the time needed to accomplish the goal. The nature of the duties of specific commissions may determine which method is most suitable. Designing yearly work programs or goal statements may be done in conjunction with the development of the relevant departmental work plan so that the department and commission's work will complement each other throughout the year. When developing a workplan Commissions should take special care to ensure that they remain within their subject area purview and the constraints of their enabling legislation. B. MEETING PROCEDURES 1) Establishment of Meeting Rules Each commission may establish additional rules and limit debate. It is the responsibility of the chairperson to control the debate among commissioners so that everyone has a chance to speak before others speak for a second time, and to expedite the business at hand. To this end, commissions may establish rules to limit debate. 2) Processing of Motions When a motion is made and seconded, it should be stated by the maker of the motion and read by the Chair prior to debate. If the motion is adopted, the maker's written version of the motion, if any, should be given to the secretary for reference in preparation of Council reports and/or the minutes. A motion may not be withdrawn by the mover without the consent of the member seconding it. After discussion has ended and immediately prior to the vote, the secretary clearly states the full motion (with any amendments). If a roll call vote is used, the secretary then calls the roll (always calling the names in the same order). After all commissioners have voted, the secretary announces the vote totals and whether or not the motion passes. Commissioners' Manual 49 HAC PAGE Page Chapter V. Commission Procedures

99 Lori Droste, District 8 Susan Wengraf, District 6 CONSENT CALENDAR July 19, 2016 TO: FROM: SUBJECT: Honorable Mayor and City Council Councilmembers Lori Droste, Susan Wengraf, Linda Maio, and Kriss Worthington Commission Work Plans RECOMMENDATION Commissions with the exception of the Board of Library Trustees, Design Review Committee, and the Zoning Adjustments Board will submit a work plan detailing its goals and objectives for the year. Plans will be submitted at the start of the fiscal year, annually. FINANCIAL IMPLICATIONS Although additional staff time will be needed to assist commissions in drafting work plans, staff time will be reduced overall if misaligned commission referrals are reduced. In addition, if boards and commissions do not direct city staff to perform research, gather information, or otherwise engage in activities involving projects or matters that are not aligned with the City s Strategic Plan, staff will be able to make more efficient use of their time. BACKGROUND The City of Berkeley is in the process of introducing its first strategic plan. To ensure that Berkeley s commissions are in alignment with the overall mission of the City, commissions should submit annual work plans. Each work plan should contain the following information: 1. Commission mission statement 2. What are the commission s goals? In order to achieve these objectives, please specify: a. Resources i. What specific resources are needed and available to achieve desired change? (i.e. staff time, $, time, materials, equipment) b. Program activities i. What will the commission do with its resources? ii. Processes, tools, events, technology, actions that are employed to bring about the intended objectives Milvia Street, Berkeley, CA TDD: (510) ldroste@cityofberkeley.info or mailto:swengraff@cityofberkeley.info HAC PAGE Page 19 96

100 Commission Work Plans CONSENT CALENDAR July 19, 2016 c. Output(s) i. What will be the direct results of commission activities? ii. How much will be done? (i.e. Number of forums/meetings held, # of participants reached, etc.) d. Outcomes i. The specific changes desired/achieved in the short-term (1-3 years) and long-term (4-6 years) Outcomes should be measurable, action-oriented, and realistic (W. K Kellogg Foundation, 2004). ENVIRONMENTAL SUSTAINABILITY Not applicable CONTACT PERSON Lori Droste, City Councilmember District 8, Susan Wengraf, City Councilmember District 6, Attachments: 1: Logic Model Summary (W.K. Kellogg Foundation) Page 2 HAC PAGE Page 20 97

101 Attachment 1 Logic Model Summary A logic model brings program concepts and dreams to life. It lets stakeholders try an idea on for size and apply theories to a model or picture of how the program would function. The program logic model is defined as a picture of how your organization does its work the theory and assumptions underlying the program. A program logic model links outcomes (both short- and long-term) with program activities/processes and the theoretical assumptions/principles of the program. The Basic Logic Model components shown above are defined below. These components illustrate the connection between your planned work and your intended results. They are depicted numerically by steps 1 through 5. YOUR PLANNED WORK describes what resources you think you need to implement your program and what you intend to do. HAC PAGE Page 21 98

102 Commission Work Plans CONSENT CALENDAR July 19, Resources include the human, financial, organizational, and community resources a program has available to direct toward doing the work. Sometimes this component is referred to as Inputs. 2. Program Activities are what the program does with the resources. Activities are the processes, tools, events, technology, and actions that are an intentional part of the program implementation. These interventions are used to bring about the intended program changes or results. YOUR INTENDED RESULTS include all of the program s desired results (outputs, outcomes, and impact). 3. Outputs are the direct products of program activities and may include types, levels and targets of services to be delivered by the program. 4. Outcomes are the specific changes in program participants behavior, knowledge, skills, status and level of functioning. Short-term outcomes should be attainable within 1 to 3 years, while longer-term outcomes should be achievable within a 4 to 6 year timeframe. The logical progression from short-term to long-term outcomes should be reflected in impact occurring within about 7 to 10 years. 5. Impact is the fundamental intended or unintended change occurring in organizations, communities or systems as a result of program activities within 7 to 10 years. In the current model of WKKF (W.K. Kellogg Foundation) grantmaking and evaluation, impact often occurs after the conclusion of project funding. Compiled from: W.K. Kellogg Foundation. Logic Model Development Guide. (2004) Page 4 HAC PAGE Page 22 99

103 Berkeley Energy Commission HAC 4/6/2017 Attachment 4a This is an example of another Commission's work plan. Item 5.B February 22, 2017 Revised February 15, 2017 Prioritization Key Short Term 6 Months Mid Term 12 Months Long Term Unspecified Deadline Energy Commission 2017 Work Plan 1. Energy Efficiency Upgrades: Energy Efficiency in Disadvantaged Communities Lead Commissioner Ryan Bell On-going tracking, consultation and recommendations to Council as needed. Deliverable: Report on services provided in Berkeley. Timing: 2017 midyear update Building Energy Saving Ordinance Lead Commissioner Cate Leger a. Provide beta user testing for on-line compliance system b. Track integration with energy efficiency programs and conversions from energy assessments to upgrades c. Review preliminary data for evaluation and make recommendations for program improvement - including financing and incentive programs - in preparation of evaluation for council in 2018 Deliverable: Feedback on assessments, conversions. Review and comment on evaluation and recommendations to staff and council Timing: January 2017 June Community Choice Energy Lead Commissioner Michelle Myers, Kelly Jiang On-going tracking business model and program launch looking at rates and integration with Berkeley energy policies, climate action plan, and recommendations from the Berkeley Solar Plan. These programs include BESO, community solar, and others. Deliverable: Comments and recommendations to Council and Berkeley s representative to the JPA, including comments on incentive programs, limits on RECs and shifting to electrification. Report on progress toward the 50% Solar Plan. Timing: The Business Plan will be developed after the JPA is seated in February, the final plan is due 6 months after the seating of the JPA. 3. Mandatory building requirements, reach codes and incentives for existing buildings Council Referral on Mandatory Rooftop Solar (9/13/16) Office of Energy and Sutainable Development, 1947 Center Street, Berkeley, CA Tel: (510) TDD: (510) manager@cityofberkeley.info Website: HAC HAC PAGE Page