Friday, October 14, 2022

Ed Miller's Loose Relationship With Facts

Recently Ed Miller leveled a few criticisms of my record that I would like to address.  Unfortunately for Mr. Miller, in a failure to listen and a rush to attack on his part has Mr. Miller thinking that he may have finally found that nut after the most recent candidates forum.  The first was regarding membership with Cal Cities and working with other cities, the second was regarding unpopular housing projects.

This is going to be long because it takes some explanation to demonstrate how the assertions by Ed Miller are misleading.

Here is a video of the first question and my response:

Miller asserts, "a question came up asking us if we supported the city's continuing membership in the League of California Cities (Cal Cities).  All four of us stated that we do, and gave our reasons. ... Billeter went next and ... opened by asserting that Wan most definitely had stated the exact opposite".  

The actual question was two parts: "Do you believe that Clayton should remain a part of league of California cities and should Clayton continue to work closely with other cities Clayton should continue to strengthen our position on state mandates and issues?"

My response: "Certainly.  I do think there is a lot of value in these organizations that have the ability to pull together resources as well as represent cities where they have shared interests.  The League of California Cities represents essentially all cities in the state, so they try to do their best to represent all cities.  Now, I would say that some larger cities when we talk about Los Angeles or Oakland or San Francisco, they may have different interests than we, and so there will be times that we don't, as a city, agree with the positions taken by an organization that represents all cities.  Now I do think the membership is important.  It is something that we've been a member for a long time, and so when we look at our spending priorities, that's one of those things that we evaluate."

To this, Miller asserts that I expressed support of the city's continuing membership in Cal Cities.

Miller should have waited for the video to be available because in his excitement over something to attack, he either misunderstood the question and the responses, or he's misrepresenting them intentionally.  Either of these reflects poorly on credibility.

My response of "certainly" is in regards to the second of the two part question.  I certainly believe we should work closely with other cities to strengthen our position on state mandates and issues.  This does not necessarily mean it need be done through Cal Cities, and in fact, I'm not aware of any substantive outcome in this arena as a result of such membership.  In fact, other organizations like Livable California, California Cities for Local Control, and California Alliance of Local Electeds are much more accessible organizations and do not have the bloat that comes along with having to represent San Francisco alongside of Clayton.

I did say there is value to the membership, though I did not say I supported continuing membership as Miller asserts.   I went on to say that spending on membership to an organization that may not represent us should be prioritized against all other spending.  Many different things may have value - like membership in Cal Cities - but only spending that represents the highest best use of funds should be acted upon.  

Miller goes on to assert that "Billeter opened by asserting that Wan most definitely had stated the exact opposite".  In looking at the video, it's clear this is false.  Take a look:

Here is what Billiter actually said:  "And I also agree I thought that was one of the budget cuts that was suggested by Councilmember Wan, the $6,000 dollars, would be a cut that we could make before we ask for parcel taxes which he talked about in his opening. That was my understanding of the meeting as well."

Not only was it at the end of her response, not the beginning, but Miller mischaracterizes her response implying more certainty than was actually expressed.  Miller's need to embellish doesn't engender a sense of trust.  He says one thing, but in reality it's something different.  

On the question of value, I answered affirmatively - there certainly is value to the membership, though I did not say I supported continuing membership.  Training and advocacy have value, but they need to be stacked against all other potential uses of funds.  I mentioned this in my response to the question.
Many different things may have value - like membership in Cal Cities - but only spending that represents the highest best use of funds should be acted upon.  

Because our membership has no impact on the actions that Cal Cities takes, and much of the information that Cal Cities produces in its advocacy is publicly available, during a brainstorming session at our Budget/Audit Subcommittee on how to balance the budget, I asked if there was an appetite to curtail our membership.  This idea did not move forward in the Subcommittee's recommendation to the full council contrary to Miller's assertion. A data scientist getting the basic facts wrong in order to fit a narrative - go figure.

Regarding the second line of attack regarding housing - again Miller either misunderstands the question or is misrepresenting it intentionally, reflecting even more poorly on credibility and trust.  The question was likely in regards to the Olivia project - one where the community was opposed.  Miller stretches when he asserts that the Olivia project approval was required by law.  While I continue to be disappointed by the decision in the Olivia lawsuit, in reading the opinion it is clear that had the city decided against the project it may have sustained court challenge.  From the opinion describing the standard of review:
From the standard: "The trial court presumes that an agency's decision is supported by substantial evidence;"  and "When we review an agency's decision for consistency with its own general plan, we accord great deference to the agency's determination"

In other words, had the city decided against the project, if there were litigation then the trial court would presume that the city's decision was supported by substantial evidence and would also accord great deference to the city's determination.  Had the city decided the way I voted, then the burden of proof would rest with the one challenging the outcome - the result, unfortunately, is unknowable.

The main point that Miller tries to make is that my position about complying with the law is not consistent with my vote on the Olivia project.  He is interpreting the loss at court to mean that the law was clearly against me.  But if we again read the court opinion, it's clear that Miller's claim is unsupported, or perhaps he is ignorant of the words in the opinion:
The court here recognizes that they could find no regulatory or statutory definition of "urban use".  If the parcels in question were not for "urban use", then the infill exemption that was utilized would not be available and the project would have required actual environmental review under CEQA.  But without a finding from the city, and with no actual definition of what "urban use" was, the court came to a decision on its own.  This is a far cry from the law being clearly established.  So in the absence of a clear definition, I used my own judgment in representing the people of Clayton - what I was elected to do.

To assert that my position of complying with the law and voting against the Olivia was inconsistent belies ignorance of the actual law.  Given that the standard of review gives great deference to an agency decision, had the city decided against the project the outcome may have been entirely different.

Miller goes on to attempt to defend his vote in favor of an extension of the Olivia project.  His reasoning has changed - going from his inability to find good cause to deny, to asserting his vote was based on advice from our City Attorney and City Manager.  Regardless of the changing reasoning this is the actual standard for reviewing a request for extension of a project.  From CMC 17.64.030:

"“Upon a showing of good cause therefor, the Planning Commission may extend the

period of a permit in which it is to be exercised, used or established, for a maximum

of twelve (12) months at a time or as otherwise specified on the permit.”

A finding of good cause is a prerequisite for extension, but not dispositive. It appears that Miller believes that upon showing good cause the granting of an extension would be the rebuttable position. This is not how the municipal code reads. In the code, it is a two step process. The first is whether good cause exists. If no, then no extension may be granted. If yes, then proceed to the next step. The next step is discretionary - the PC may extend the period of a permit. The use of "may" in this section indicates discretion and there is no other criteria by which that discretion is couched.

The municipal code clearly places the burden on the one seeking the extension - but Miller claims he could find no reason to deny. That is a misunderstanding of where the burden lies. Further, there is no standard by which "good cause" is defined. Here the City may define what is sufficient to constitute good cause and unfortunately for Miller and the rest of Clayton, he didn't take the time to understand the law.