Neutrality as an Avoidance Tactic

At various times when asked questions, members of the City Council or Planning Commission will often fall back on the excuse that they must remain neutral, or that they cannot comment on issues that they may have to vote on, else they would be forced to recuse themselves.

And while there may be situations of genuine conflicts of interest, like if the Clayton Historical Society is putting a matter before the City Council and Julie Pierce is both a Councilmember and a Board member, then it makes sense to recuse one self. And certainly if a member of the Council is taking money from people that are coming before them, they'd be prohibited from voting. Specifically, if you accept more than $250 from someone putting forth an application within the last 12 months per Gov Code 84308(c):

No officer of an agency shall make, participate in making, or in any way attempt to use his or her official position to influence the decision in a proceeding involving a license, permit, or other entitlement for use pending before the agency if the officer has willfully or knowingly received a contribution in an amount of more than two hundred fifty dollars ($250) within the preceding 12 months from a party or his or her agent, or from any participant, or his or her agent if the officer knows or has reason to know that the participant has a financial interest in the decision, as that term is described with respect to public officials in Article 1 (commencing with Section 87100) of Chapter 7.

Unless the Council is taking money from the groups subject to the decision making process, they are under no obligation whatsoever to recuse themselves.  We know this is true because elected officials state their positions all the time.  If Diane Feinstein believes a certain thing, she's free to state her position, campaign on it, etc.  The same is true for Mitt Romney, Mark Desaulnier, etc.  Office holders can express their support or their objection to virtually any issue if they so choose.  This was from June 7, 2018:

So when Councilmember Shuey says that he can't form an opinion on selling our downtown to Fulcrum to put in a memory care facility, that's not true.  It's a transparent attempt to dodge having to take a position.  There is no prohibition on stating an opinion.  Watch - I'm opposed to any developer that wants to put a memory care facility in our downtown and if elected and the matter comes before me, I will be opposed.  Simple.

Watch the Council Laugh as it Restricts Free Speech

Previously I discussed the importance of the 1st amendment.  In response to mine and many others' criticisms, the City Manager has announced that the city will no longer enforce the sign ordinance until such time it can be revisited by the Council.

The Mercury News also covered this story here:  https://www.mercurynews.com/2018/09/29/east-bay-citys-sign-policy-stirs-election-season-first-amendment-debate/

But more than just the text of the story, it's important to understand the attitude and approach of the Council.  Mr. Shuey and Mr. Wolfe tout their experience as one of their qualifications.  Both Mr. Shuey and Mr. Wolfe voted in favor of this free speech restriction:



As they laugh, this isn't the experience I want on the Council.

There Is No Diversity of Thought at the Current City Council

I've discussed earlier the high rate of absenteeism by Councilmember Shuey and how by his being absent so frequently it impacts his ability to represent the people.  But even when he is present, it makes little difference. This is because there is no diversity of thought within the Council. Beyond simple matters like approving the previous meeting’s minutes, there are much more impactful votes. Votes on things like:

• parolee housing
• rezoning downtown parcels to high density, 
• votes to sell off city land to outside developers, 
• votes to work with outside developers to build memory care centers
• And votes to restrict people’s speech.

And here is where the lack of diversity of thought becomes apparent. Except one vote from Councilmember Diaz*, the Council has voted unanimously. Not just sometimes either - for nearly 400 different votes, 100% of the time since January 2014 the votes have been unanimous.

Given the contentious nature of some of the issues and the disagreement among the residents of Clayton, you would expect that disagreement reflected on at least some of these issues at the Council. But that's not the case. The Council has voted unanimously, all the time.

In a town with as diverse views as we have here, those differing views are not being represented when there is no diversity of thought at the current Council.

The actions and motivations of the council should be transparent and not hidden behind some non-existent requirement to be neutral. As an independent voice on the Council, I would represent the view that:

• The safety of our residents should be the primary duty of the city. 
• That we shouldn’t restrict people’s ability to speak. 
• That we shouldn’t have high density housing in our downtown. 
• That we shouldn’t sell off our city to outside developers ensuring we lose control over how the land is used.

We can do better, and it's time for a change.

*At the Aug, 21 meeting, Jim Diaz voted "no" while the four other Councilmembers including Mr. Shuey voted "yes" to the more recent parolee housing ordinance.  Initially at the July 17 council meeting, Councilmember Diaz voted yes with a unanimous Council to a buffer of 500' from sensitive areas for parolee housing.  After hearing universal complaint throughout public comment at both the July 17 , and Aug 21 meeting, Councilmember Diaz indicated he wasn't ready to vote on the 2nd reading of the parolee housing ordinance.  When the other four Councilmembers increased the buffer to 1000' and pushed for a vote anyways, Councilmember Diaz voted no, switching from his previous yes vote.

Progress Update on Signs 9/24/18

There has been a big uptick in sign distribution since the last update.  Surprising myself most of all, I actually ran out of yard signs last weekend.  I am incredibly appreciative of the support in the community for what I think is a very important election.  I already have folks asking for signs and I've told them I will deliver them once my next order comes in the next few days.  Thank you to everyone who has put a sign in their yard.  If you are interested in a sign, please sign up by clicking here:

https://www.signupgenius.com/go/5080f49a8ac29ab9-yard

Or you can email me at vote.for.jeff.wan@gmail.com, message me through this site, Facebook, NextDoor, or any means of contact and once they arrive I will deliver to you.

Here is where we currently stand with sign distribution:

People are busy, and if they aren't focused on our small town City Council, they likely aren't aware of what has been going on, how close we've been to losing our downtown and the character of our city. We need to raise awareness among Clayton residents and people seeing the yard signs is a great way to do that.  The biggest hurdle for any new candidate is getting the word out.  Incumbents have a large advantage and anything that we can do to start conversations - signs, Facebook likes and shares, door hangers, engaging your friends and neighbors - all of this helps so thank you.

Council Members Need to Show Up to Represent the People

We elect members of the Council to represent us.  To use their judgment in deciding matters that come before the Council.  We extend a certain amount of trust, that they will try to act in the best interests of all of the residents of Clayton.  At a minimum, we expect them to show up.  A certain amount of absenteeism is reasonable, 3% maybe.  5% maybe.  Even 10% isn't too far outside expectations.

That is not however, the level of absenteeism achieved by Councilmember Shuey.  For his latest of four terms in office, starting from January 2015 through today, Councilmember Shuey has been absent from 30% of meetings:

I've tabulated the attendance for all meetings since 2015, the beginning of Councilmember Shuey's latest term with the results above.  And while Councilmember Shuey talks about his and Mr. Wolfe's commitment, but a 30% absentee rate doesn't demonstrate commitment.  It's hard to represent the people who elected you if you fail to show up over 30% of the time.

Debate Recap 9/24/18

I want to thank everyone for coming out last night to the debate.  I hope people were able to learn more about the candidates to inform their votes.  Remember, you can vote for two candidates and I hope you vote for myself and Brian Buddell.  The room was full with a few folks having to stand in the back.  But if you weren't able to be there in person, a recording of the debate is available here:

https://ci.clayton.ca.us/city-clerk-department/city-council/live-streaming/09-24-18/

My take away from the debate was that there is a clear choice that voters have.  With Mr. Shuey and Mr. Wolfe, voters can choose more of the status quo.  I've previously gone into detail regarding why I think that is not the right direction for the city and will continue to do so in subsequent posts.

And while I do believe it is critically important for people to come together as a town and as neighbors, it's also important that people are able to have a view, find areas they agree on, and agree to disagree on areas where they don't.  This is something that has been lacking among the Council and was reiterated last night.  Mr. Shuey and other members of the Planning Commission believe erroneously that they are not able to state a position on key issues like whether they want to have a three story memory care facility take over our downtown.  They say they must remain neutral, but then they do things like vote in favor to negotiate to sell the property and move forward with development.

I told Mr. Shuey last night that his belief that he must remain neutral is mistaken.  This has been reinforced by various court cases which I will detail in a subsequent post.  To be clear, if elected, I will always be open and forthright on my positions regarding the issues that matter to the residents of Clayton.  We may not always agree, but the voters will know where I stand.

Candidate Round Table 9/21/18

All four candidates got together Friday afternoon for a 1/2 hour taped segment.  The moderator asked questions and we each had approximately 1 minute to respond.  In just over a week they will release the video to us and I will share it in its entirety.

We covered topics including high density housing, selling off the downtown lot, parolee housing, and speech restrictions.  Overall I think the discussion highlighted a number of areas where Mr. Shuey is out of touch with what the residents of Clayton want.  He sometimes refers to people who disagree with him as a 'vocal minority'.  Vocal is right, and after the election we'll see if it truly is a minority.

I look forward to the debate on 9/24 at 7:30pm in the Library.

The importance of the 1st amendment

In summary - the Planning Commission originally recommended a sign ordinance that would allow total aggregate noncommerical signage per parcel up to thirty (30) square feet.  Councilmember Shuey, upon hearing that wanted to reduce that amount to just three (3) square feet, rejecting the warning from the City Attorney that this was too restrictive, and acknowledging the legal risk.  Councilmember Shuey went so far as to say his intent was to restrict political speech.

The matter was sent back to the Planning Commission, and without any discussion, Carl Wolfe voted in favor of the more restrictive three square feet political speech limitation, which the Councilmember Shuey voted for - to restrict political speech.

See excerpts of Council Meeting minutes that demonstrate all of the above in the first half of this post here.

***

Just a warning - this post will delve into aspects of the law, court cases, and standards of legal analysis.  While I'm an accountant, I also love the law as a super nerdy hobby.

In May of 2017, the City Council voted to adopt a new restrictive sign ordinance.  The video of the discussion is here, starting at the 32:30 mark.  The discussion of this issue started poorly, and got worse as it went on.

The first mistake was believing that the only guideline that the City must follow was that restrictions must be content neutral to comply with a recent Supreme Court ruling in Reed v. Town of Gilbert.  While that case was about content based restrictions on speech, our City Council took the wrong lessons from that case.  To understand this, it's important to know how speech restrictions are evaluated.  As an enumerated constitutional right, the first amendment offers broad protections over many aspects of speech.  Over the years, the courts have crafted various guidelines that must be followed whenever speech restrictions are implicated.  Different fact patterns in different cases have lead to a complex weave of protections.  Political speech is one of the most protected aspects, whereas commercial speech gets less.  Some speech is not protected at all, things like slander, fighting words, incitement to violence, etc.

When the court reviews speech restrictions, they have essentially two standards to utilize.  If the speech restriction is content based, then the court will use strict scrutiny.  Strict scrutiny has three prongs that must be satisfied to pass:

1. There must be a compelling government interest - like national security or matters preserving the life of a large number of people.
2. The law must be narrowly tailored - it can't be overly broad or impact things not related to the compelling government interest.
3. The law must be the least restrictive means to achieve the ends sought - this prong usually results in laws being overturned because there are often other means to achieve the same ends.

So in the case that the Clayton City Council was responding to in Reed, that had to do with a content based restriction and therefore strict scrutiny was applied and the law was overturned.

The mistake that the Council made was that they believed an ordinance being content neutral absolved them of the other requirements that are imposed when restricting speech, even in a content neutral manner.  Yes the Council has the ability to regulate the time, place, and manner of speech as long as those are content neutral.  But that isn't the only requirement.  The ability to regulate time, place, and manner of speech even in a content neutral way, are subject to intermediate scrutiny, less restrictive than strict scrutiny, but still difficult to pass.  Intermediate scrutiny has five prongs that must be satisfied to pass when analyzing speech restrictions:

1. Is restriction within the constitutional power of government?
2. Does restriction further important or substantial governmental interest?
3. Is the governmental interest unrelated to the suppression of free expression?
4. Is the restriction narrowly tailored – no greater than necessary?
5. Does the restriction leaves open ample opportunities of communication?

These tests were established in 1994, in the Supreme Court case, City of Ladue v. Gilleo.

Here are a couple excerpts from that case:

Although Ladue has a concededly valid interest in minimizing visual clutter, it has almost completely foreclosed an important and distinct medium of expression to political, religious, or personal messages. Prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, but such measures can suppress too much speech by eliminating a common means of speaking.

and

Displaying a sign from one's own residence carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means, for it provides information about the speaker's identity, an important component of many attempts to persuade.

and

A special respect for individual liberty in the home has long been part of this Nation's culture and law and has a special resonance when the government seeks to constrain a person's ability to speak there

Given the City of Clayton sign ordinance limits total aggregate signage per parcel to three square feet, it forecloses the ability of individuals to engage in political speech expressing support for candidates for office. And since every two years there will be at least two or three City Council seats up for election, not to mention offices for county, state, and federal office, the current limit is incredibly restrictive. There is no way it passes the #4 and #5 prong of the intermediate scrutiny test, and possibly fails others as well.

And the city staff knew that.  They cautioned the Council that the three square feet restriction was overly broad, and that courts have upheld much larger total aggregate bans.  But in spite of that, the Council elected to pass the overly restrictive ordinance.  Councilmember Shuey even acknowledged the legal risk, however he dismissed it then as remote as he dismisses it now.  In the Council's discussion, they specifically identify political speech as the thing they are trying to limit.  That belies any fig leave of content neutrality.

Reminder - Volunteers Needed

Just a reminder that I am looking for volunteers to help spread the word by passing out door hangers.  If you are interested, please see this link:

http://www.jeffwanforclaytoncitycouncil.net/p/help.html

September 18 City Council Meeting Update

At the September 18 City Council meeting last night, there were no action items on the agenda so the crowd was sparse.  There was a great recognition ceremony for one of our volunteer police officers that was retiring, and a presentation by County Animal Control.

As with the previous meetings, all candidates in attendance were invited to speak for three minutes.  As I recently became aware of efforts by City Code Enforcement to restrict the campaign signs that so many supporters have put up, I had to speak out against this clear restriction of political speech.  Here is the transcript of my statement:

I am an active CPA in private industry, the treasurer of my small HOA, and I’ve been a Clayton resident for over 9 years. My family moved to Clayton to raise our kids. We came for the great schools, safe neighborhoods, and small town feel and charm.

You may think, that’s what Clayton already is, so why do you want to change things? That’s the thing, I don’t want to change things. I want to preserve all the wonderful qualities of Clayton that brought me, and so many other families here. But over the last few years, those things have been at risk. When things are going well, I think most people are content to let them continue, as am I. It’s when things aren’t going well that folks like me need to step up and speak out.

When you fail in your duty to protect the safety of all Clayton residents, people like me will speak out. You may hope that because you increased the buffer distance for parolee housing, that people will forget how badly the Council mishandled the issue. But I think you know they won’t.

Maybe that’s why code enforcement is now threatening people who have my yard sign out, who have Brian’s yard sign out. See, in May of last year, you passed a new restriction on yard signs, including political yard signs. By limiting political speech, perhaps you hope that folks will forget, that they won’t know there is an alternative to the establishment candidates. That prohibition on political speech, however, presents an interesting contrast to how you handled parolee housing.

Both scenarios were driven by external factors – parolee housing by AB109, and political speech banning by a SCOTUS ruling in Reed. But while you delayed acting on parolee housing for 2 years, you acted quickly to ban political speech

Both scenarios presented some risk of litigation – parolee housing as a matter of first impression with an unknown outcome, and political speech banning based on a long history of jurisprudence where the ordinance you passed likely violates the 1st amendment. But while you demurred to one end of the risk averse spectrum regarding parolee housing, you were more than willing to incur risk to ban political speech.

And when the City Attorney cautioned against increasing buffer zones for parolee housing, you heeded the warning. But when the City Attorney cautioned against banning political speech, you went ahead and did it anyways. So when people like me do step up and speak out, you have more tools at your disposal to quash their efforts. Maybe you’ll be successful, but I’m hoping you won’t be.

That’s why I’m a candidate for City Council.

To expand on the political speech restriction comments above, here is an excerpt from the minutes of the 5/16/17 meeting:

Councilmember Shuey recognized that there was a legal risk to adopting a political sign ordinance so restrictive.  The City Attorney also cautioned against doing so.  Councilmember Shuey then voted in favor of the restriction in spite of the potential legal risk.

At a follow up meeting on July 18, 2017, the Council made clear that the restrictive ordinance was designed to quash political speech, a core protected right of the 1st amendment:

And that brings us to where we are today. Now, Code Enforcement is trying to use this ordinance to do just what the Council intended - quash political speech which limits opposition.  Here is a copy of a letter received by one of my supporters:

There are several problems here:

• First, political speech is protected by the 1st amendment, and numerous court cases including SCOTUS cases have held that political signs are where 1st amendment protections are at their zenith.  This type of restriction runs afoul of the 1st amendment.
• Second, typical violation of Clayton's sign ordinance requires a 10 to 20 day initial notice, then a follow up 20 day notice period before any fines can be levied.  To get around this, the City of Clayton is claiming that under CMC 1.14.055, the normal sign violation notice periods somehow "render[s] enforcement of the provision a meaningless act; or public health, safety, and welfare concerns".  
• Third, this person had a total of 4 signs up, one each for myself and Brian Buddell, each facing two way traffic on the street.  Each sign was 18"x24", or three square feet.  The notice incorrectly sates the signs are 12"x18", or 1.5 square feet.  As a result, the notice gives permission to violate the ordinance.
• Fourth, with a limit of three square feet and typical signs being three square feet, because the City of Clayton has either three or two alternating number of Council seats up for election every two years, this ordinance would limit people to expressing their support for only one of the seats up for election.

All of these restrictions heavily benefit incumbents.  Incumbents and those in the establishment have the bully pulpit to get their message out.  New candidates rely on word of mouth, conversations with neighbors, etc. and limiting political speech in this way can only reduce the chance that any new voices will be heard or get elected.

***

Separately at the comment period on non-agenda items, I spoke about the numerous efforts of the Council to sell our city.  Here is the transcript of my statement:

Clayton Should Not Be For Sale

A straightforward concept really. Clayton should not be for sale. But if you look around downtown, that's the impression you'd get. The dilapidated buildings on Oak St. have a For Sale sign. The large lot where all of our events and festivals are held have a For Sale sign.

Why is the city so intent on selling its assets? With our current reserve position at approximately $4.5M or 1 year of operating activity, we do not need the one time influx of cash - the city needs to utilize its resources in a responsible way to shape the future of our downtown. Once these properties are sold, the city loses its ability to exercise discretion about how the property is used, and what type of building or structure may go in there. If these properties sell, the city would be constrained to approve many things that residents may not appreciate, but since they'd be consistent with the existing general and town center specific plan, they would be allowed.

This is why the 3 story, three separate building senior rental project right near downtown is on the table. Because of previous actions of the Council to rezone those three parcels from single family residential to high density multi-family, the Council can comfortably say that the proposal for those three buildings is consistent with the general and town specific plan. Well of course it is, because it was rezoned to allow it! And as members of the council have repeatedly told the community, private property owners have a right to develop their property. And because those properties are privately held, and they were rezoned to be high density multifamily, the property owner gets to put giant 3 story buildings in downtown where there are no other 3 story buildings. The property owner gets to take advantage of the CA density law bonus yielding variances for things like height restrictions, setback requirements, parking requirements, etc. All because the Council was complicit in rezoning these properties, and they are privately owned.

If instead the city retains ownership of these properties, the city could take action to ensure the types of business and development that occurs is consistent with the downtown character and charm that attracted so many of us to Clayton. We could offer a variety of creative incentives, like longer term, significantly reduced lease amounts, tax abatements, or other actions that encourage certain businesses to participate, while retaining some measure of control. We could even incentivize the businesses that are already here, assisting them in updating their properties, or doing repairs that may have fallen by the wayside.

Instead, the Council seems intent on installing a senior care facility in the downtown open lot, as you’ve entered into multiple agreements with various developers to do so. That’s wrong for Clayton.

When I look to the future of Clayton, what our downtown could be, I see so much potential. We could have a vibrant downtown full of small retail and locally owned business that benefits all the residents of Clayton. But that future is only possible if the Council shares that vision and doesn't sell our city to outside developers. The 3 story, three separate building senior rental project right near downtown is an example of what happens when the Council doesn’t share that vision. Clayton should not be for sale.

That is why I am a candidate for City Council.

I detailed in a previous post some background on the Council's effort to sell the open downtown lot by entering into multiple exclusive negotiation agreements with outside developers.  But it's not just the one open downtown lot.  The Council has been trying to sell many other parts of downtown.  I wrote about this issue at more length previously.  But it's not just the downtown lots.  The City also wanted to sell the property north of City Hall near Keller Ranch.  For some reason the Council wants to sell our city.  But Clayton should not be for sale and we need a voice on the Council to speak against these actions.

Fulcrum as a Wake Up Call

When the City Council approved an Exclusive Negotiation Agreement (ENA) with Fulcrum Development to purchase the open downtown lot and construct a senior memory care facility, it caught a lot of people off guard.  Before that was widely publicized and objected to, ultimately leading the developer to back out of the deal in June of this year, many folks around town had no idea that the Council wanted to sell the land that was home to all of the downtown festivals and events.

But this was nothing new - the Council has been trying to put in a senior care facility in that location for years.  And while members of the Council will demur when challenged, hiding behind some form of, 'there is a long process to go through before the Council can weigh in', or 'it was just a negotiation agreement'.  Here's an example from Councilmember Catalano at the June 5, 2018 Council meeting (page 6) talking about the Fulcrum ENA:

Here she is hiding behind the idea that the Council can't take action before the process is complete.  But this isn't true.  The Council already took action by agreeing to the Exclusive Negotiation Agreement.  The goal of the agreement was to sell the open lot, and put in a senior memory care facility.  By voting yes to that ENA, the Council took action voicing approval of that purpose.   If a developer wanted to put a garbage dump in our downtown, I hope our Council wouldn't agree to an ENA for that purpose.

Fulcrum wasn't first attempt by the Council to sell the open lot and put in a senior assisted living facility.  After purchasing the lot, the City entered into an Exclusive Negotiation Agreement with Pacific Union Land Investors in July 2016.  At the time, Councilmember Shuey recognized that this would jeopardize the downtown festivals and events.  He still voted in favor in July-2016, saying that this was merely an opportunity to explore the potential:

Here Councilmember Shuey is hiding behind the idea that this is merely an ENA.  But of course, the purpose of an ENA is to get to a final agreement, one which would ultimately see the open downtown lot replaced with a senior assisted living/memory care facility.  He knew it would mean sacrificing downtown community events, but voted in favor anyways.

The city has been trying to sell this open lot for years, the whole time wanting to put in a senior care facility.  That Fulcrum was turned away due to community disapproval was a great outcome in spite of the actions from the Council.  But the same people who wanted to sell our city to outside developers are still on the Council and one of them is a candidate for re-election.  Selling city owned property reduces the control the Council can exert over the utilization of that property.  Clayton should not be for sale to outside developers.  If it is, we may gain short term financial benefits, but we will pay with the character of our city.

Two Upcoming Debates

There are two debates scheduled for the next week and a half. Both are sponsored by the League of Women Voters, but the formats are different.

The first is on 9/21 during the day. This is video taped and there is no audience allowed. It's quite short, 30 minutes total A few questions each, and a one minute closing statement. We will be provided a copy of the video and I will be posting it for viewing after I get it.

The second is on 9/24 at the Clayton Library. There is an audience and is first come first served. It starts at 7:30pm, but I expect people to arrive early to get seats. If you are able, please show up early to make sure you get a seat. This one will be a few questions as well, with an opening and closing statement from each candidate.

Now is the Time When Clayton Needs Change

In talking with folks around town, there is a popular refrain from detractors of my campaign that takes the form of:

'If you think Clayton is such a great place to live, why do you want to change things?  The people on the Council and involved with the city government are the ones responsible for making it such a great place to live!'

On it's face, this is a fair observation.  I do think Clayton is a great place to live - my family and I chose to live here 9 years ago for many reasons.  And the city government did have a hand in creating an environment where a great city like Clayton could develop over time into what it was nine years ago when I got here, and what it is today - a great place to raise a family with safe neighborhoods and great people and schools.

At the same time, past accomplishments don't excuse poor choices or actions in the present.  So it is not that I want to fundamentally change things.  On the contrary, I want to make sure that Clayton retains all the qualities that originally drew my family here nine years ago.  The main thing to focus on then, is what has changed over the past few years, and are those changes good for Clayton?

Here's what I've seen:

1. The Council has been too amenable to outside developers who want to fundamentally change the character of our downtown.  They have entered into multiple exclusive negotiation agreements with various developers to take over the area where all of our festivals and gatherings are held and put in a high density senior memory care facility. 
2. The Council has been trying to sell significant parts of the city, including the open downtown lot, and several other properties on Oak St, the property adjacent to Keller Ranch, and another property on Main St.  Thus far there have been no takers, and discussion has surrounded how to market the properties.  More recently however, the Council has been engaged in closed session negotiations with outside developers to sell the properties, ensuring that the city loses ultimate control over how it is used.
3. The Council completely failed to perform due diligence in addressing parolee housing in Clayton.  On this issue the failure was on multiple levels.  First, they failed to act timely - after passing a temporary moratorium on three separate occasions, the Council did not act again until the moratorium was set to expire and couldn't be renewed.  Essentially they ignored the issue then acted at the last minute when they realized they had to.  Then, they performed poor analysis on the underlying fact pattern - asserting that a 500 ft buffer was the the most defensible, and that anything further would be a defacto ban, and then reversing that position at the very next meeting.  The Council then chose to target areas that were heavily populated by young families and retirees, while excluding areas where they themselves lived.  They also were unaware of a public park at Stranahan adjacent to one of the areas that was targeted for parolee housing, and had to revise that as well.  The Council was unaware if private parks were included in sensitive uses, even though it's clear from the ordinance they voted for that private parks were not included.  In this issue, the Council failed to act timely, and when they did, they did so with a poor level of diligence such that they had to amend what they originally passed.
4. The Council has acted with little transparency, leaving the residents of Clayton confused about why they acted in various ways above.  Only very recently have they elected to send agendas to an email distribution list, but only after being prompted by Brian Buddell.  To me it's clear the above actions were not consistent with what the people of Clayton want - but even if it were, the Council has fostered an environment where they have lost the trust of many of the people of Clayton.

If the Council had historically acted in the way they have recently as described above, then I'm certain Clayton would not be what it is today.  And that is the problem - the way the Council is acting is out of character.  If the above types of actions are allowed to continue, then Clayton would soon lose the character and charm that attracted my family, and so many other families to this city.  

That is why I'm running for City Council. I’m running for Clayton City Council because at some point the council lost its way.  From the push for high density housing, selling off the city, parolee housing, and acting with a lack of transparency, the council stopped listening to the people it represents. We can do better and it’s time for a change.

Door Hanger Help Needed

The biggest challenge in a successful campaign is getting the word out that there are other candidates running.  Name recognition goes a long way, and incumbents have a heavy advantage.  In an effort to reach as many people as possible, I am asking for help placing door hangers throughout the city.

Both Brian and I will be employing a similar plan, and are hoping for a sharing of volunteers.  The plan will be to place a door hanger on every residential door in the city, twice for each of us.  To do that, we have divided the city into two halves (upper and lower Clayton), and within those two halves, 11 separate regions.  With a little more than 4,400 residences, the more people we have the better.

We are targeting the following dates for the distribution:

9/22/18
10/6/18
10/20/18
11/3/18

Each date will have a sign up for a specific region.  Once you are signed up, we will establish a central meeting place to distribute materials.  The more people we have the better, but we are asking for approximately 2 hours or so.  Depending on the number of people signed up for your area we can divvy up the region accordingly.

To facilitate the signing up for various areas, I have created the following sign up sheet.  Please click this link to sign up:  https://www.signupgenius.com/go/5080f49a8ac29ab9-door

Below are the regions separated by colors, with a key below.  My 5 year old assisted with the line drawing so they are very precise.

The first group is the upper half, and the second group is the lower half:

There will be four separate days, so feel free to sign up for multiple, however there is no pressure or obligation to do so.  Any and all assistance is appreciated, no matter how small.

Posts and Threads Being Deleted on NextDoor

There are folks in our community who are not interested in open discussion about ideas, but instead would prefer to delete content they disagree with.

I announced the start of my campaign on Nextdoor.  It is there where I learned a great deal of information about what is going on in our city, how people are feeling, and what issues are important to them.  There's one problem though - Nextdoor has deleted the threads I've started, including the one announcing my candidacy.  Here are the Community Guidelines for Nextdoor regarding politics and campaigning:

Under the second bullet in the "Allowed" section is introducing yourself.  Except now the thread introducing myself has been removed, along with the many many replies from interested folks around town.  According to their guidelines around removing content, it says this:

I've reached out to NextDoor directly to inquire as to content in conformity with their guidelines was removed.  Two weeks ago, another person whom I've been in contact with also had several of their posts removed for seemingly little reason.  In this marketplace of ideas, flagging posts for removal, and removing posts that in compliance with site policies, but contain content that one disagrees with is wrong, and counter productive to open debate.

Here is the response I got from NextDoor regarding my thread deletion. I tried to order these by date, but they go back through August 25:

After agreeing to restore my original introduction post on 9/1/18, I had to follow up again on 9/4/18.  After doing so, I received this response on 9/5/18:

Here Nextdoor changes their mind and decides not to restore the original thread with the previous comments.  They invite me to create a new introductory thread which I have now done.  Apparently I can introduce myself as a candidate, but I am not allowed to ask for people's vote.  Please take a  guess on who I think you should vote for and use your best judgment when voting.

They still neglected to respond to my question about whether I could reply to my own thread, but finally did so after another round of prompting.

Here is the lesson to take from all this.  After having my first introductory thread removed for over 2 weeks, it's clear there are local folks on NextDoor that are reporting content trying to get it removed.  That is within the rules of Nextdoor and their system provides for this.  I also think it's important to understand that this is actually happening, and I wanted to highlight this example of locals within the power structure trying to stifle debate.

Reminder - Meet and Greet This Sunday Sep 9

Just a reminder that I will be downtown at Skipolini's from 1pm to 3:30pm this Sunday, September 9.   The purpose is so that so all the residents of Clayton can get to know me, ask questions, and talk about anything that's on your mind. I've coordinated with Brian Buddell and he will also be there so you'll be able to chat with the both of us!

See you there!

September 4 City Council Meeting - Parolee Housing Round 3

Last night was the third City Council meeting that dealt with Parolee Housing.  Attendance was lighter than the last meeting, but there were still about 50 people who were present.  It was clear from the outset that the Council had their minds made up and the vote on the amended ordinance introduced last meeting was a formality.  I spoke during the public comment period, highlighting the poor actions of the Council actually increasing the risk of litigation and regarding their lack of due diligence.

There was a representative from the County talking about re-entry of parolees as well.  He attempted to downplay the risk presented, focusing on low level non violent property crimes as the focus of re-entry.  However, it's important to realize the types of crimes that were targeted in the AB109 realignment that are pushing more parolees out of incarceration back into neighborhoods.  Those include:

• Meth/PCP/other drug related manufacturing and possession
• Child stealing by person without custody
• Brandishing firearm at person in vehicle
• Second degree burglary
• Looting
• Grand theft of various kinds
• Bring/possess weapon on grade school grounds
• Threatening to injure a public or school employee
• Removal of officer's firearm while resisting arrest
• Bringing loaded firearm on state grounds
• Involuntary manslaughter
• Taking of hostage
• Unlawful transfer of firearm to minor
• Possession of assault weapon or machine gun

I detail more at the bottom of a previous post, here.

The Council then voted 4-0 to approve the ordinance, with a 1000 ft buffer around sensitive use items, ignoring private parks, and targeting two areas in the city.

Below is the transcript of my statement:

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The Council has mishandled the issue of parolee housing in at least two significant ways. The first is in its effort to avoid litigation, you have taken actions that weakens your position if there ever were litigation. The second way parolee housing has been mishandled by the Council is your failure to perform sufficient due diligence. I’ll comment on each of these areas.

Regarding litigation – it seems like the Council’s primary objective is to avoid litigation. But if you are concerned about litigation, the comments regarding your motivation provided at the last meeting were extremely unwise. The Supreme Court has repeatedly held that animus towards certain groups is an unconstitutional basis for making law.

So while promoting the safety of the city actually would be a legitimate basis for lawmaking, comments including those from Councilmember Pierce as quoted in an Aug 25 article at the East Bay Times where she said she wants to “make it as ugly a process as it can possibly be” and that she is “going to count on everyone to …raise holy hell to drive them out” are not.

It makes me wonder if Councilmember Pierce was provided guidance on how to properly craft a law that avoids unconstitutional animus. Because her comments here don’t reflect that. As the Supreme Court stated in USDA v. Moreno:

“If the constitutional conception of "equal protection of the laws" means anything, it must, at the very least, mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

It would be wise for Councilmember Pierce to avoid the appearance of unconstitutional animus and focus on the legitimate interests of the City of Clayton in regulating Parolee housing. Just saying.

Regarding lack of due diligence - This ordinance appears to have put the Council in a conundrum. You have placed a de facto ban off the table, while at the same time narrowing the available parts of the city to 2 areas. But if there were a park or day care or other sensitive use in those two areas, which the Council is apparently ignorant of whether or not one exists, then those areas would be ruled out as well and you would be faced with the ban you are trying to avoid, all on the backs of those that live in the lower cost targeted areas filled with young families and retirees. It would behoove you to determine whether any of those sensitive use items actually exists so you can make more informed decisions.

Specifically related to the level of diligence, I have a few questions that I’ll just go through and you can address in your comments later:

• Can the Council clarify why they did not address the matter of parolee housing in the two years before the moratorium was set to expire? 
• Was external counsel engaged to consult in any capacity at any time? 
• Given the City Attorney considered any potential litigation a matter of first impression, on what basis did the City Attorney conclude first at the July 17 meeting that 500 ft was the most restrictive buffer defensible, and then at the Aug 21 meeting conclude that 1000 ft was the most restrictive buffer defensible? 
• What is the rationale for excluding private parks from the types of sensitive uses, while simultaneously including private schools? 
• I didn’t notice the Hesperia matter that Councilwoman Catalano raised at the Aug 21 meeting included in the original staff report - was the City Attorney aware of the Hesperia matter prior to Councilwoman Catalano bringing it up? 
• Does the staff or Council believe that Oakhurst golf course is considered a business licensed for on or off sale of alcoholic beverages? 

Here is the real conundrum - If you become aware of a sensitive use item existing in one or both of the targeted areas for parolee housing, would you then take steps to relax the restrictions on parolee housing making it easier to come to Clayton, or expand the areas targeted? Or maybe then would you be comfortable with a ban?

The scrambling around this issue at the last minute could have been avoided had the Council deigned to take on regulation at an earlier date. After passing the original moratorium years ago, the Council shelved this issue until the last possible window to address it. If instead it was addressed at the outset, there would have been sufficient time to seek input from residents, and engage in proper diligence about buffer zones, zoning, locations of sensitive use items, and crafting law that would survive legal challenge. Instead the Council dropped the ball on this issue and here we are.

That is why I am a candidate for City Council.

****

I did provide my questions to the Council in written form after my comments so they could address them. I passed them directly to Councilmember Shuey. He and the rest of the Council declined to respond or acknowledge my questions which is their right - the Council is free to ignore any questions presented to them during public comments. If elected however, the rest of the Council would not be able to do so.

Let's Have a Chat

In order to get the word out about my candidacy, and give all residents a chance to get to know me, I am hosting two casual meet and greets so all the residents of Clayton can ask questions and talk about anything that's on your mind. I've coordinated with Brian Buddell and he will also be there so you'll be able to chat with the both of us! The dates and times are as follows:

Skipolini's on the Deck:

Sunday, September 9 from 1pm - 3:30
Sunday, October 21, from 1pm - 3:30

You Can Vote for Two

I have been talking to a lot of folks around town and there was one item that came up several times so I think it's a good idea to clarify.  There are a total of five City Council seats.  The way the City Council elections work in Clayton is that every two years, there are either three or two seats up for election.  The term is 4 years, however the seats are staggered so they don't all turn over at the same time.

This year there are two of the five seats up for election.  That means that when everyone gets their ballot, there will be instructions that say "Vote for Two" or something to that effect.

In talking to folks, I've heard multiple variations of 'I'm voting for you, but I also really like what Brian Buddell has to say', or 'My spouse is voting for Brian Buddell, but I'm voting for you'.   Quite a few people were under the impression they had to choose one or the other.  That leads to the explanation that there are actually two seats available which is always received as very good news!

So when the ballots are mailed out to everyone on October 8, remember you can vote for two spots for Clayton City Council.  Obviously I'm hopeful that one of those votes goes to me.