Law

Sun shines on government in Modesto, but not in Merced

Submitted: Mar 16, 2006

Badlands Journal appreciates the Modesto Bee’s emphasis this week on the second annual, national Sunshine Week. We note, however, that it remains overcast in Merced. There is no excuse for this except the “independence” of the local Sun-Star publisher. The Sun-Star is a McClatchy paper, like the Modesto Bee. However, the Sun-Star appears as a matter of editorial policy to be against protecting and promoting open government for all citizens. That’s a rotten definition of journalistic independence, in the opinion of Badlands Journal.

Bill Hatch
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Secrecy on the March:
Making the Case for Sunshine Week

… Sunshine Week is not about journalists, it's not about partisan politics, it's about the public and the importance of protecting and promoting open government. Sunshine Week is not about protecting journalists' rights, it's about the right of all citizens to know what their government is doing—and why. -- http://www.sunshineweek.org/
------------------------------------

Message from Bee Editor and Senior Vice President Mark S. Vasché

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690450c.html

Dear Readers,

Welcome to Sunshine Week.

Over the course of the week, we’ll be shining a light on open government, with stories, editorials and columns designed to help you understand the importance of public access to government proceedings and records – and the growing attempts to limit that access.

We’ll help you understand that open government is an issue that affects every citizen, not just journalists.

We’ll help you understand your rights as a citizen, show you how to file a public records request and tell you what to do if your request is denied.

We’ll tell you what happened when we went out and asked 21 local agencies for public documents. We’ll tell you what happened when a First Amendment group made the same request of 31 state agencies. And, we’ll tell you what’s happening in Washington, D.C., and across the country.

We’re not alone in doing this. Newspapers, magazines, broadcast outlets and Web sites throughout the nation are joining The Bee in observing Sunshine Week.

Why? Because a government that ceases to be open and accessible to its citizens ceases to be a government of, by and for the people. And, we never want that to happen.

Mark S. Vasché

Editor and Senior Vice President
-----------------------

Paper Trails

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690451c.html

Here are some records to which people have access:

Jail logs -- You can see who's in jail, their ages, hometowns and the offenses for which they were arrested.

Elected officials' statements of financial interest -- Called Form 700, the California Fair Political Practices Commission says each elected and appointed official and certain public employees must file one annually. City hall is required to keep them on file.

Property records -- You can learn the assessed value of the homes in your neighborhood, see who has owned them and what they paid and sold them for, find out zoning and get other information at the county assessor's office.

Restaurant inspection reports -- The county health department issues reports on every restaurant in town. Find out if your favorite restaurant meets cleanliness standards.

Bankruptcies and divorces, civil and criminal court files -- Most court cases in California are open to the public, though judges can choose portions to be sealed, such as search warrants. The only real exception is juvenile court -- all records are closed.

Employment contracts of public officials -- You can compare your city manager's contract with those in similar towns, or find out how your school district superintendent's salary and benefits stack up against others.

Voter registration -- An Internet database allows people to look up the names, addresses and phone numbers of all registered voters (though some people choose not to have their numbers listed).

The city budget -- You can see how your city spends the money that comes in. You can even look at the monthly bills.

Development agreements -- These allow someone to see whether developers follow through on their commitments.

City or county staff reports -- What proposals do staffers generate and how do they justify the costs?
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Tips on making a request for a public document

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690452c.html

Preparing your request

1. Identify the record you want. Knowing the specific document type – a birth certificate or a building permit, for example – will make it easier to direct your request.

2. Identify the agency that has it. Government operates at several levels, so be sure to ask the county for county records, the city for city records, and so forth.

3. Check the agency's Web site to see if the information is available online. More and more, government agencies are posting documents online, so Web sites are worth a look.

4. Find out when the agency is open and its location. You'll save a lot of time and
frustration by knowing the hours of operation.

5. Plan your visit. Expect delays. Go early enough in the morning or afternoon so clerks have time to fulfill your request before lunch or closing time. Park where you won't have to worry about feeding a meter. If you plan to photocopy documents, make sure you have enough money to cover the cost.

At the agency

1. You do not have to prove or even state a "need to know" to justify access.

2. You don't need to explain why you want the record.

3. Your request need not be in writing.

4. You don't need to identify yourself, with a few exceptions. The law requires

identification only when you seek information about pesticides or the addresses of people arrested or crime victims.

5. You have the right to inspect records, but the agency need not compile lists or write reports. For instance, the county assessor's office could produce records of home sales on your block but would not be required to compute the median sales prices or otherwise analyze the data for you.

6. You may be charged a fee for copying records, but not for looking at them.

Overcoming obstacles

1. The agency is obligated to do its best to help you find what you want. Your request should be reasonably clear, but if you need help describing exactly what you need, don't be afraid to ask for help.

2. You should expect prompt access to the records. Delay is allowed only to resolve good-faith doubts on whether all or part of a record is accessible by the public.

3. If there is a dispute over whether a record is open to inspection, the agency has 10 days in which to produce it or provide a written reason for denial. That 10-day delay applies only when there is a dispute over whether the document is exempt from inspection. Otherwise, the document must be produced promptly – which generally should be the day you ask.

4. Occasionally, documents may not be immediately available. For example, old records may be stored at a different location. If you'd like, you may leave your name and contact information so the agency can alert you when the record is ready. But you do not have to identify yourself and always have the option of returning to the agency later.

5. If the agency declines your request, it must justify doing so by citing the law, either a statute or a case interpreting a statute. Write down that information or ask the clerk to do so for you. And get the name of the person who told you.

6. If your request is denied, you have the right to appeal. You may send a letter of appeal, or go to Superior Court. For a sample appeal letter, go to www.modbee.com/sunshine. If you go to court and a judge rules that the agency improperly denied you access, you may be able to recover court and attorney fees.
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Sample letter: how to appeal if your public record request has been denied
http://www.modbee.com/local/story/11923683p-12690453c.html
Last Updated: March 12, 2006, 05:34:56 AM PST

Date
Name and Title (of the official with custody of the records) Name of Agency Address

RE: Public Records Act Request

Dear ________________,

Pursuant to my rights under the California Public Records Act (Government Code Section 6250 et seq.) and the California Constitution, as amended by passage of Prop 59 on November 3, 2004, I am writing to request a copy of the following records, which I understand to be in the possession of your agency:

(Describe the record(s) as precisely as possible, including the designation of any forms or
reports with titles, the date or dates if relevant, the author and addressee if the item is a letter or memo, etc. If the record is referred to in another document or published report and it will help to attach a copy of that reference, do so.)

I ask for a determination on this request within 10 days of your receipt of it, and an even earlier reply if you can make that determination without having to review the record(s) in question.

(Use the following if applicable:)

I would not ordinarily trouble you with this written request, but when I first made it informally I was told by __________________ that your agency considers the information to be exempt from disclosure because ________________________________. I respectfully suggest that this position, if I understand it correctly, is wrong. It is wrong because

___________________________________________________________________________.

If you determine that any or all or the information is exempt from disclosure, I ask that you reconsider that determination in view of Prop 59, which has amended the state Constitution to require that all exemptions be "narrowly construed." Prop 59 may modify or overturn authorities on which you have relied in the past.

If you nonetheless determine that the requested records are subject to a still-valid exemption, I would further request that: (1) you exercise your discretion to disclose some or all of the records notwithstanding the exemption; and (2) that, with respect to records containing both exempt and non-exempt content, you redact the exempt content and disclose the rest.

Finally, should you deny part or all of this request, you are required to provide a written response describing the legal authority or authorities on which you rely. Please also address the question whether Prop 59 requires disclosure even though authorities predating Prop 59 may appear to support your exemption claim.

If I can provide any clarification that will help expedite your attention to this request, please contact me at (provide phone or fax number, pager number, etc.). I ask that you notify me of any duplication costs exceeding $xx so that I may decide which records I want copied.

(Use the following as applicable:)

I am sending a copy of this letter to your legal advisor to help encourage a speedy determination, and I would likewise be happy to discuss my request with (him/her) at any time.

Thank you for your time and attention to this matter.

Sincerely,
---------------------------------

Merced woman guards public projects process
Lawsuits force the county, UC to toe the legal line

By ADAM ASHTON
BEE STAFF WRITER
Modesto Bee -- March 13, 2006
http://www.modbee.com/local/story/11926478p-12693374c.html

For some in Merced County, Lydia Miller's name prompts the same reaction: Why is she suing me now?

Miller, the county's foremost environmentalist, positions herself at the front of often impassioned debates on the spread of subdivisions and the footprint of the University of California at Merced.

She crafts her arguments using the state's Public Records Act to ensure local governments adhere to laws protecting the environment.

"Public process is the only tool in ensuring integrity of a project," said Miller, 48, who leads the San Joaquin Raptor/Wildlife Rescue Center. "When the process is compromised, then the project is compromised. We see very few projects that follow good process."

One of the biggest of 19 lawsuits Miller's group has filed against local agencies forced Merced County to turn over thousands of pages of documents regarding its interactions with the University of California before the system placed its newest campus there.

Miller believed the county was treating the campus as if it were a done deal and speeding through the approval process.

That case, which ended in 2002 with a judge's order to open the records, provided the groundwork for a lawsuit Miller filed in late 2004 seeking to halt plans on an 11,600-home community that would border the campus.

Her opponent in the three-year push to open the county's UC records was Greg Wellman, the county's former chief executive who now works as Atwater's city manager.

He said Miller had a right to most of the information she requested, even if it gave him headaches at the time.

"I think a large amount of what she's asking for is just a reflection of our democratic process," he said. "I might personally feel some of the issues raised are not consequential, but those are personal feelings. She has a right to public information — pure and simple."

Back then, though, Wellman said handing over some of the information felt as if it were inviting a costly lawsuit.

"You don't want to give up your defense strategy resulting in a higher award or any other such thing," he said.

Bruce Owdom, Miller's lawyer on the open records lawsuit, said agencies sometimes are too quick to deny a request like hers, giving an impression that a "culture of secrecy" prevails in their offices.

"They sometimes have an attitude like it's our domain here and the public doesn't have a right to these things," he said.

Miller says that attitude prevails in many government offices. She said the county should start keeping running files on controversial projects so people could drop by and check out a proposal's progress.

Merced County Supervisor Jerry O'Banion said that recommendation might run afoul of privacy protections for some applicants.

He also said the county shouldn't hand over information while it's being sued unless it's ordered to do so. The Public Records Act has an exemption for documents under litigation.

"There's client-privileged information that may help in regards to giving guidance to a project that shouldn't be part of a public document that anyone could see," he said.

Nonetheless, he said, the public should be able to see all the information that leads to supervisors' decisions.

Miller says the information her group obtains helps it ensure agencies follow through on mitigation plans, and support projects with sufficient resources.

Her group recently filed a public records request with Livingston and Merced County seeking information about plans for a sewer line that would make it easier for a developer to build a subdivision outside the city limit.

The City Council approved Ranchwood Homes' pitch to lay the sewer line in late 2004, but Miller argues the county would have had to sign off on it because it's in unincorporated land. She's waiting for the documents.

"We participate in the process," she said. "We can't sue on emotion; the only thing we can sue on is to make sure the process was adhered to rightly."
---------------------------

Judge rules against county
Merced Sun-Star – July 23, 2002
http://www.mercedsun-star.com/news/281651491740333.shtml

That was the good news. The bad news came five months later, when Merced County Superior Court Judge William Ivey ruled on attorney’s fees and costs. Attorney for the San Joaquin Raptor/Wildlife Rescue Center, Bruce Owdom, spent $42,000 on the case. Judge Ivey, forced to rule in favor of the Center on the merits of the case, slammed the plaintiff and its attorney on costs and fees to which they were entitled, as if to say to the Merced public and the bar: We may give the case, but you will not get costs and fees in Merced County.

And that has been largely true.
--------------------------

Records suit costs county $22,000
Court orders reimbursement for group’s court costs
By Cheri Carlson
Merced Sun-Star – Nov. 25, 2002

“Everybody thinks that we make money from the lawsuit. We don’t. – Lydia Miller, San Joaquin Raptor Rescue Center

Two local environmental groups that successfully sued Merced County earlier this year have won more than their right to view public records. In fact, they won nearly $22,000.

Superior Court Judge William T. Ivey on Friday awarded the groups their court costs, which must be paid for by the county.

Neither of the organizations – the San Joaquin Raptor Rescue Center and Protect Our Water – nor the individuals involved in the suit – Lydia Miller and Steve Burke – will actually see the money. It will go straight to their attorney, Bruce Owdom.

Owdom said Friday that when he took the public records case it was on a full contingency basis, which means if they lost, his firm wouldn’t get paid.

But they won, and now Merced County – and taxpayers – must foot the bill.

Not the entire bill, however.

Owdom said he was disappointed that the court decided to award only about half the amount he had requested.

He had sought about $42,000 in fees, but the judged awarded $21,796 instead, stating that the issues involved were not complex. He added that the $42,000 figure was based on the 222 hours he said his firm worked on the case.

Miller, Burke and their organizations filed a lawsuit in May claiming the county had repeatedly ignored or denied requests for information related to the University of California, Merced.

Mille said at the time that the information the groups had requested was “a pretty substantial file” of information that they felt the community needed to review, and the county had said, “No, we’re not giving it to you.”

The county argued that some of the requests were denied because the documents had already been provided. Other requests, according to the county, were vague and the requesting parties couldn’t clarify them.

In June, Ivey ruled in favor of the environmental groups and ordered the county to respond to the requests and to produce any of the public records that the county may have.

Owdon said Friday that since Ivey issued that order, the county has complied and produced more than 100 separately identified documents that hadn’t previously been made available to his clients.

Awarding court costs is necessary, according to Owdom, so public interest groups can find lawyers who’ll take these types of cases.

“Attorneys are only willing to take these cases if they have some assurance of getting fees awarded,” he said. “Nonprofit (groups) can’t afford to pay attorneys’ fees.”

Dennis Myers, the county’s attorney, said Friday that the judge’s order for the county to pay the environmental groups’ court costs adhered to state law.

Court costs and reasonable attorney fees are awarded to the plaintiff if they prevail in litigation regarding public record compliance, according to California code. The fees are paid by the public agency.

The code also states that if the court finds that the plaintiff’s case “is clearly frivolous,” it should award court costs and reasonable attorney fees to the public agency.

According to Myers, which account within the county’s funds will provide the money has not been decided since more than one department was involved.

Miller said Friday that she and Burke took their case to court “on behalf of the public,” and one of the benefits is that the court awarded them their attorney’s fees.

“Everybody thinks that we make money from the lawsuit,” she said. “We don’t.”
------------------------------

Central Valley Shines
With a few exceptions, open records provided in informal Bee survey

By ADAM ASHTON
BEE STAFF WRITER
Modesto Bee -- March 13, 2006
http://www.modbee.com/local/story/11926477p-12693365c.html

… Merced County, which charged 10 cents for copies of financial disclosure forms, charged the highest fee in the area for copies of other documents. It wanted 50 cents apace, a sum it set in 1990 to recoup some processing costs.

Three agencies — Livingston's building department, Manteca's building department and Tuolumne County's community development department — wanted to charge research fees for requests they deemed burdensome.

Bee representatives did not pay those fees; they reduced their requests from broad attempts to gain several months' worth of inspections to queries for a handful of specific documents.

Outside records firm a wrinkle

The Public Records Act says agencies cannot charge fees for researching or processing, unless the agency has to create a document to meet the request.

Nathan Barankin, spokesman for the state Attorney General's office, said that under the act, an agency may charge a retrieval or research fee for staff time on nonelectronic documents only if the public entity contracts with a private company to keep the records. The fees come through the company's bill.

Livingston's building department is run by a private company and could meet that exception.

City Manager Richard Warne said the department would charge extra fees only for requests that take several hours of staff time.

Its research fee was $46 an hour, city Building Official Rex Wyatt told a reporter.

"If it's a document off the shelf, we just give it to people. If it involves several hours of research, we might charge, but we haven't run into that problem," Warne said …

Bruce Owdom, a Fresno attorney who has worked for The Fresno Bee, said the amount of work that could go into satisfying a public records request is not a sufficient excuse not to comply with the law, or to charge fees beyond what the Public Records Act allows.

"They might say some other department has those records and we don't have those records. Or it would be too difficult to compile," he said. "My recollection is that there's not an exception to the Public Records Act for that type of situation."

Peter Scheer, executive director of the California First Amendment Coalition, said research fees violate the Public Records Act.

"In general, you can't be charged for the time, the effort or the money of conducting a search that responds to an individual's request — not for the search time, not for the consultation with lawyers, not for any discussions about the request.

"None of that represents the cost that may be passed on to the requester," Scheer said.
---------------------------

Notes:

3-12-06
Modesto Bee
Now open to the public...Lorena Anderson
http://www.modbee.com/local/story/11923683p-12690527c.html
Sunshine Week...Your right to know. Anyone can request public records any time, without providing a reason or even identification, and it is up to the government to explain why a document can't be released.Assemblyman Bill Bagley, who represented Marin and Sonoma counties from 1961 to 1974 and wrote the California Public Records Act, said he intended the government to operate in an "atmosphere of openness." ...agencies must prove that withholding a document has more public benefit than releasing it; nothing in the act is to be construed as preventing an agency from releasing records.

Message from Bee Editor and Senior Vice President Mark S. Vasche
http://www.modbee.com/local/story/11923683p-12690450c.html
Over the course of the week, we’ll be shining a light on open government, with stories, editorials and columns designed to help you understand the importance of public access to government proceedings and records – and the growing attempts to limit that access. Why? Because a government that ceases to be open and accessible to its citizens ceases to be a government of, by and for the people.

Government watchdog follows the money trail...Adam Ashton
http://www.modbee.com/local/story/11923683p-12690518c.html
Documents let him verify what officials are saying

Paper Trails...
http://www.modbee.com/local/story/11923683p-12690451c.html
Here are some records to which people have access

Tips on making a request for a public document...
http://www.modbee.com/local/story/11923683p-12690452c.html
Preparing your request... At the agency... Overcoming obstacles...
1. You do not have to prove or even state a "need to know" to justify access.
2. You don't need to explain why you want the record.
3. Your request need not be in writing.
4. You don't need to identify yourself, with a few exceptions. The law requires identification only when you seek information about pesticides or the addresses of people arrested or crime victims.
5. You have the right to inspect records, but the agency need not compile lists or write reports. For instance, the county assessor's office could produce records of home sales on your block but would not be required to compute the median sales prices or otherwise analyze the data for you.
6. You may be charged a fee for copying records, but not for looking at them.

Sample letter: how to appeal if your public record request has been denied...
http://www.modbee.com/local/story/11923683p-12690453c.html

3-13-06
Modesto Bee
Merced woman guards public projects process...Adam Ashton
http://www.modbee.com/local/story/11926478p-12693374c.html
For some in Merced County, Lydia Miller's name prompts the same reaction: Why is she suing me now? Miller, the county's foremost environmentalist, positions herself at the front of often impassioned debates on the spread of subdivisions and the footprint of the University of California at Merced. She crafts her arguments using the state's Public Records Act to ensure local governments adhere to laws protecting the environment. "Public process is the only tool in ensuring integrity of a project," said Miller who leads the San Joaquin Raptor/Wildlife Rescue Center. "When the process is compromised, then the project is compromised. Greg Wellman, the county's former chief executive who now works as Atwater's city manager...Back then, though, handing over some of the information felt as if it were inviting a costly lawsuit. Merced County Supervisor Jerry O'Banion..."There's client-privileged information that may help in regards to giving guidance to a project that shouldn't be part of a public document that anyone could see,"...Nonetheless, he said, the public should be able to see all the information that leads to supervisors' decisions. "We participate in the process," Miller said. "We can't sue on emotion; the only thing we can sue on is to make sure the process was adhered to rightly."

Central Valley Shines...Adam Ashton
http://www.modbee.com/local/story/11926477p-12693365c.html
Bee survey-The Bee informally assessed compliance with open government laws at 17 cities and four counties over the past two weeks by visiting government offices and asking forbasic rec-ords — financial disclosure forms for officials,executive contracts, building permits and restaurant inspections. Most agencies, such as the cities of Modesto, Sonora and Ceres, had the information on hand and disclosed it immediately. Others, such as Riverbank, Turlock and Merced County, wanted written requests. Peter Scheer, executive director of the First Amendment Coalition, called the level of compliance documented by The Bee "unusual." Californians Aware, another open government advocacy group, is scheduled to release an audit Tuesday indicating that more than half of the state agencies it checked failed to comply with the Public Records Act. Bruce Owdom, a Fresno attorney who has worked for The Fresno Bee, said the amount of work that could go into satisfying a public records request is not a sufficient excuse not to comply with the law, or to charge fees beyond what the Public Records Act allows. Peter Scheer, executive director of the California First Amendment Coalition, said research fees violate the Public Records Act.

| »

Merced County challenges legality of Ranchwood Home's Livingston sewer trunk line

Submitted: Feb 26, 2006

In the following letter, Merced County Counsel Ruben E. Castillo provides City of Livingston Attorney Thomas Hallinan, Jr. thoughtful instruction on the various laws the city may have broken in approving Ranchwood Home's construction of a sewer trunk pipeline from the city waste water treatment plant in a southerly direction on county land through Gallo and other ranches across several county roads and an irrigation canal toward a 300-acre Ranchwood Homes development in a "conceptual" stage of planning.

From:
Merced County
Ruben E. Castillo
County Counsel

February 16, 2006

Thomas Hallinan, Jr., City Attorney
City of Livingston
Post Office Box 486
Oakdale, CA 95361
Fax: (209) 847-5515

Re: Sewer Line Trunk Extension

Dear Mr. Hallinan:

I hope you are well. I am taking the opportunity to write to you about a sewer line extension to a proposed future residential development. The extension was approved by the City of Livingston. Unfortunately, there were a number of deficiencies in the City’s approval, and I wanted to alert you to them as one public agency attorney to another.

As I understand the facts, Ranchwood Homes (“Ranchwood”) is extending a 42” pipeline from the waste water treatment facility in the City to the site of Ranchwood’s proposed future residential development. I also understand that Ranchwood is in the conceptual design phase for the development of a residential housing project located in the unincorporated area of the County, partially within and partially outside of the Sphere of Influence of the City. In order to provide future sewer service for the proposed Ranchwood development project, Ranchwood entered into an agreement with the City to design, construct, and dedicate a sewer trunk line from the City’s waste water treatment plant to the proposed project site. This agreement reflects a finding by the City that the project was categorically exempt from CEQA. The agreement was unanimously approved by the City Council on December 21, 2004, but a Notice of Exemption was apparently never filed.

As approved by the City, the project called for the construction of 5,115 lineal feet of trunk sewer line by Ranchwood. The new sewer line would be installed “between the intersection of Gallo Drive/Vinewood Drive easterly and southerly to Peach Avenue. However, as approved, the “entire length of sewer trunk line is outside the City limit line and Sphere of Influence.” The sewer line is “designed to convey future urban sanitary sewer flows from the City to the existing Wastewater Treatment Plant site.” However, “no part of this in-ground project will be connected to the City sewer system until future mixed-use development occurs.” [December 21, 2004, City Staff Report re: Ranchwood Sewer Trunk Line, emphasis added.]

Following approval by the City, Ranchwood acquired easements from private property owners and the County department of public works. The project proceeded and a “dry” sewer trunk line was installed all the way from the waste water treatment plant to just short of Magnolia. At the request of the County, further installation has been stopped, subject to an encroachment permit from the County and compliance with all applicable laws.

Given these facts, I thought it important to share with you our legal view concerning the project. It is the County’s reasoned opinion that the approval of this project by the City does not comport with the City’s jurisdictional authority. Furthermore, it appears to run afoul of the Cortese-Knox Local Government Reorganization Act, the California Environmental Quality Act, and general land use and planning law. As County Counsel, I respectfully request that the City take every action to bring its approval of this project into compliance with these laws, including all appropriate environmental analysis, and I further request that the City communicate with and cooperate with the County to make certain this project is carried out in conformance with the law and the jurisdictional authority of each respective public agency.

1. The City had no Power to Approve a Project Outside its Territorial Limits.

As you know, the California Constitution at Article XI, section 7, confers on a city the power to “make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” Thus, “[u]nder the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, Section 7.) Apart from this limitation, the ‘police power [of a county or city] under this provision . . . is as broad as the police power exercisable by the Legislature itself.’ Birkenfeld v. City of Berkeley (1976) 17 Ca. 3d 129, 140 [130 Cal. Rptr. 465, 550 P.2d 1001].” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1942) 50 Cal App 2d 374, 122 P2d 965.)

A municipal corporation has generally no extraterritorial powers of regulation. It may not exercise its governmental functions beyond its corporate boundaries. (Von Schmidt v. Widber (1894) 105 Cal 151, 38 P 682; Mulville v. San Diego (1920) 183 Cal 734, 192 P 702; Oakland v. Brock (1937) 8 Cal 2d 639, 67 P2s 344.) The Constitution delegates directly to inferior governmental agencies the police power in their respective localities, provided only that its exercise by any city must be confined to such city. (People v. Taylor (1938) 33 Cal App 2d Supp 760.) A municipal ordinance can have no extraterritorial force unless by express permission of the sovereign power. (Ferran v. Palo Alto (1942) 50 Cal App 2d 374, 122 P2d 965.)

It is only when annexation occurs that the police power transfers from the County to the City. Police power has been given a county and a city, respectively, for exercise only “within its limits” and when land in suit was annexed to city it left territorial jurisdiction of county, ceased to be “within its limits,” and hence was no longer subject to provisions of county zoning ordinance classifying land as residential and limited to single family dwellings. (South San Francisco v. Berry (1953) 120 Cal App 2d 252, 260 P2d 1045.)

2. The Out-of-Boundary Extension of Service Requires Approval by LAFCO.

This sewer line extension should have been approved by LAFCO. As you know, a city that wishes to extend sewer service outside of its jurisdictional boundaries must go to LAFCO;

(a) A city or district may provide new or extended services by contract or agreement outside its jurisdictional boundaries only if it first requests and receives written approval from the commission in the affected county.
(b) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries but within its sphere of influence in anticipation of a later change of organization.
(c) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries and outside its sphere of influence to respond to an existing or impending threat to the public health or safety of the residents of the affected territory if … [certain requirements are met].

(Cal. Gov. Code Section 56133.)

Since the sewer is intended to serve a 300-acre parcel outside the City, it implicates LAFCO’s jurisdiction over an “out of boundary” service extension. (See Ceres v. Modesto (1969) 274 Cal. App. 2d 545.)

3. The California Environmental Quality Act.

In December of 2004, the City made a determination that the sewer line
project was categorically exempt from CEQA. Of course, we do not believe the City ever had jurisdiction to make a valid CEQA determination for land uses on land that is not within its territorial limits.

Nevertheless, the City may have incorrectly applied a statutory exemption, instead of a categorical exemption, to find the project exempt from environmental review. In the review and approval of December 21, 2004, the City stet (sic) on Section 21080.21 of the Public Resources Code to find the project exempt. Section 21080.21 provides:

“This division does not apply to any project of less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. For purposes of this section, “pipeline” includes subsurface facilities but does not include any surface facilities related to the operation of the underground facility.”

Reliance on this section may be misplaced. The total sewer line project greatly exceeds one mile in length. Thus, even though the project – as approved – appears to fit the statute, as the length of the first phase of pipeline installation is 5115 feet, this run afoul of a principle of CEQA that one cannot “piecemeal” a project in order to avoid the applicability of CEQA. (Association for a Cleaner Env’t v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 638. A lead agency may not split a single large project into small pieces in order to avoid environmental review of the entire project. Orinda Ass’n v. Board of Supervisors (1986) 182 Cal. App. 3d 1145, 1171.

In the most far-reaching decision on the issue of “piecemealing” development projects, the San Joaquin Raptor/Wildlife Rescue Center successfully set aside an EIR for a housing project in Stanislaus County, based on the failure of the project to include construction of sewer lines and construction of a wastewater treatment plant to serve the project. (San Joaquin Raptor/Wildlife Rescue Ctr. V. County of Stanislaus (1994) 267 Cal. App. 4th 713.) In that case the court relied on 14 Cal. Code Regs. Section 15378 (a) which defines the term “project” as “the whole of an action, which has the potential for resulting in a physical change in the environment, directly or ultimately.” Because the sewer expansion had been proposed to serve a housing project, and the housing project could not proceed without an expansion of sewer service, the court concluded that the expansion was an integral component of the housing project.

Second, the pipeline is not located within a public right-of-way. Instead it is located on private property, from which the City got a number of public easement dedications. The acquisition of easements after approval of the proposed project is not in keeping with the claimed exemption.

In addition, the City did not notify the County of its determination as a responsible agency. CEQA sets a standard of communication and cooperation among responsible government agencies with respect to projects.

Lastly, the City did not file a “notice of Exemption” for the pipeline project. (Pub. Res. Code Section 21108.) Although the filing of such a notice is not required by CEQA, it is the standard practice for California government agencies to do so.

According to PMC, consultant to the City, an EIR is being prepared for the City’s sewer and water master plan and this “project” is probably a part of that master plan. WE are concerned that a project has already been approved and constructed that is (or should be) a part of the larger master planning effort that is currently undergoing environmental review.

4. Livingston’s Actions May Have Violated Government Code section 65402.

Section 65402 (b) of the California Government Code states:

“[A] city shall not acquire real property for any of the purposes specified in paragraph (a), nor dispose of any real property, nor construct or authorize a public building or structure, in another city or in unincorporated territory, if such other city or the county in which such unincorporated territory is situated has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, until the location, purpose and extent of such acquisition, disposition, or such public building or structure have been submitted to and reported upon by the planning agency having jurisdiction, as to conformity with said adopted general plan or part thereof.”

Thus, the City may not authorize a project within the County until the County has determined its consistency with the County’s general plan. If found to be inconsistent, the city council must vote to overrule it. The County was neither consulted nor has the City taken action to overrule the County general plan on the truck line extension.

CONCLUSION

As you can see from the above, the approval of this project by the City is questionable. The project failed to comport with the City’s jurisdictional authority, the Cortese-Know Local Government Reorganization Act, the California Environmental Quality Act, and general land use and planning law.

Your help is sought so that the City may take every lawful action to bring its approval of this project into compliance with these laws, including all appropriate environmental analysis. I also request that the City communicate with and cooperate with the County to make certain this project is carried out in conformance with the law.

It is important that the County and the several cities maintain a cooperative and positive working relationship. It is in that spirit that this letter is provided to you. I hope to hear from you soon.

Highest regards,

RUBEN E. CASTILLO
MERCED COUNTY COUNSEL

| »

Friends of Denny

Submitted: Feb 11, 2006

Rep. Dennis Cardoza, Shrimp Slayer-Merced, has recently inaugurated a weekly email newsletter to keep his constituents "in the loop." The Shrimp Slayer's loop, however, would not be large enough to rope a heavily drugged alley cat. So, we thought we'd somewhat extend the loop to include the Shrimp Slayer's wider circle of friends.

No one among today's elected officials, for example, has a better claim to the title "Mr. UC Merced-- Political Class" than Denny. So we thought we'd read up on how UC is doing these days, because the Shrimp Slayer is working ceaselessly working for UC in Congress. That brought us to remember the academic chair in public policy at UC Merced, endowed by Shrimp Slayer predecessor Rep. Tony “Honest Graft” Coelho. It is always important to set good leadership examples for the young.

In a recent “town hall meeting” stacked with senior citizens who harkened in vain for the “prescription drug” word, Denny introduced another good friend, UC Merced Chancellor Carol Tomlinson-Keasey, whose elemental grasp of Valley history begins and ends with the theme: When UC got here! The Shrimp Slayer said he’d spent more time with the Chancellor recently than he had with his wife. Good taste and family values are hallmarks of Denny’s tenure in office.

Then there is Denny's real good friend in Tracy, Rep. RichPAC Pombo, Buffalo Slayer, with whom Denny teams up from time to time to gut the Endangered Species Act on behalf of their common developer friends and UC, Merced's anchor-tenant developer. So, we thought we'd read up on how Ol' RichPAC's campaign was going against former Rep. Pete "The Elder" McCloskey, Real Republican-Lodi. All this led us to recall The Shrimp Slayer's friends in the Federal Republic of Micronesia.

Returning to the theme of history beginning when UC Merced got here, the campus seems to be operating as a kind of memory wash. Former UC Provost M.R.C. Greenwood, whose compensation package is at the center of the present controversy raging in the state Legislature, was apparently able to stash her son on the UC Merced payroll. And then there’s former UC president David Gardner, a member of the UC Merced Foundation board of trustees, whose golden parachute 13 years ago occasioned the last outbreak of public outrage against UC administrators bilking the public.

Bill Hatch
-----------------------------------

Pombo charges taxpayers for vacation
Nick Juliano
Tracy Press
Feb. 9, 2006

http://www.tracypress.com/local/2006-02-09-Pombo.php
In summer 2003, just after he was named chairman of the House Resources Committee, Rep. Richard Pombo loaded the family in an RV for “two weeks on vacation” traveling around the West.

Documents obtained by the Tracy Press show taxpayers covered most of his expenses.

“This August, my family and I rented an RV and set out to explore the West,” Pombo, R-Tracy, wrote in a 2003 article posted on the Resources Committee’s Web site.

“We spent two weeks on vacation, stopping along the way to enjoy the splendor of many of our national parks.”

Pombo was reimbursed $4,935.87 to rent the RV and spent $1,500.51 on a government credit card for “travel subsistence” during a two-week span from July 27 to Aug. 11, 2003, according to a Resources Committee spending ledger obtained by the Press.

A spokesman for the committee, Brian Kennedy, said the RV rental was the only vacation expense covered by taxpayers. The credit card bill referenced in the Statement of Disbursements for the House was for expenses incurred during previous field hearings, he said. House rules dictate “official travel may not be for personal … purposes,” but allows for members of Congress to bring family members along on official trips.

Kennedy defended Pombo’s expenses. He said Pombo spent those two weeks visiting and meeting with officials at 10 national parks, over which his committee has jurisdiction.

“You bet his family was with him, of course,” Kennedy said. “What better way to see and judge the visitor experience of a national park?”

Larry Noble, a former general counsel to the Federal Election Commission, said the trip gives the impression “that members of Congress are out of touch and feel entitled to things the average person doesn’t get,” even though he may have been doing some official business.

“I understand what he’s saying … but it does look like a family vacation, and the taxpayer has a right to ask, ‘Is this the best way to do this?’” said Noble, who is now the executive director of the Center for Responsive Politics, a nonpartisan government watchdog group.

Kennedy said Pombo and his family traveled through California, Arizona, Wyoming, South Dakota and Montana, meeting with officials and touring the parks. In an article published on the Resources Committee’s Web site, Pombo said he also visited Colorado.

It is unclear exactly how much of Pombo’s time during the two-week span was spent on official business, but it was “probably a substantial amount,” Kennedy said.

“Frankly, I think it should be refreshing for people to know that Chairman Pombo is the kind of guy who will jump behind the wheel of an RV and drive 5,000 miles to see … and learn about the national parks that taxpayers pay him to oversee,” he said.

No Resources Committee staff members or fellow members of Congress accompanied Pombo on the trip, and Kennedy said he did not know how Pombo’s family occupied themselves while he was in meetings.

By renting an RV and toting along his family, Kennedy said, Pombo likely saved money on hotels and airfare that he would have incurred if he’d traveled alone.

“If the chairman could have loaded the family into a helicopter to go to all of these
meetings and all of these parks for $5,000, he would have,” Kennedy said.

House travel rules require that members reimburse travel expenses for family members

accompanying them on chartered airplanes paid for with government money, but no similar rule exists for RV travel.

The rules also require that personal travel in officially rented vehicles be kept to a minimum and must “not otherwise constitute a significant activity or event.”

Kennedy said Pombo’s travel did not violate these rules.

“The House rules are relatively lax about these types of things,” Noble said. “It’s supposed to be official business, and a number of them (members of Congress) are reluctant to call things official business. This, to me, is really in that questionable area.”

Congressional Democrats have previously accused Pombo of misusing taxpayer funds to pay his top aide to travel between Stockton and Washington, D.C.

Bay Area Reps. George Miller and Ellen Tauscher on Tuesday publicly requested an investigation into the arrangement in which Steve Ding, Pombo’s and the House Resources Committee’s chief of staff, has billed taxpayers more than $87,000 during the last several years for his nearly weekly flights and hotel stays in Washington. The deal also has allowed Ding to collect tens of thousands of dollars in political consulting fees from clients in California.

Pombo has defended that relationship, saying it fosters an outside-the-beltway perspective among his committee staff.
------------------------------

McCloskey for Congress
February 6, 2006
For Immediate Release

"FOLLOW THE MONEY"

In a speech to the Lodi Rotary Club today, former Congressman Pete McCloskey responded to press reports that incumbent Congressman Richard Pombo had raised $1.2 million in campaign funds by year end 2005, as against McCloskey's zero.

"I intend to make Pombo's campaign funding sources and Mr. Pombo's actions in response to those sources a major issue in this campaign," McCloskey said.

He challenged Pombo to respond to the following facts:

1. Indian gaming lobbyist Jack Abramoff has recently pled guilty to felonious efforts to
bribe Members of Congress.

2. Mr. Pombo and his PAC, "RICHPAC," have received more money from Abramoff, his wife and clients ($54,500) than any other California congressperson.

3. Mr. Pombo has also received more money (over $500,000) from Indian tribes than any other Member of the House.

4. One of Mr. Abramoff's most lucrative clients was the infamous clothing manufacturing industry in the Marianas Islands, a U.S. trust territory under the jurisdiction of Chairman Pombo's Committee on Resources. The industry, led by one Willie Tan, paid Abramoff millions to fend off legislation which would reform applicable immigration and labor standards to the thousands of young women brought to the Marianas to work in the sweatshops there.

5. Working conditions had become so notoriously bad by 2000 that conservative Senator Frank Murkowski, (R. Alaska) was able to obtain unanimous Senate passage of a Marianas reform bill. The bill upon passage was referred to Pombo's Committee on Resources, then chaired by James Hansen (R-Utah) where it died.

6. Over a two year period Abramoff records reflect he met on at least two dozen occasions with Majority leader Tom Delay (R-Texas) seeking to prevent Marianas reform legislation and on other topics.

7. During an 8-month period in 2000, Mr. Pombo's press secretary and legislative assistant received at least a dozen tickets to Abramoff's private "skybox," on five separate occasions, the tickets being valued at $1,000 each for inside-the-Beltway fundraising purposes.

8. On September 16, 2003, Abramoff's associate Kevin Ring, a former staff person for Congressman John Doolittle, gave Pombo's RICHPAC $1,000. Mr. Ring also gave Mr. Pombo an additional $3,000 between September 13, 2002, and February 18, 2005. In the fall of 2005, Mr. Ring took the 5th Amendment when questioned by Senator John McCain's Committee on Indian Affairs.

9. In January 2004, Mr. Pombo traveled to the Marianas, and on May 18, 2004, received nine campaign contributions from the following residents of the Marianas connected with the garment industry or the government of the Marianas.

Jerry Tan $500
Eloy Inos $500
Juan Baubata $500
Paul Zak $500
Hsia-Ling Lin $2,000
Richard Pierce $1,500
Clarence Tenorio $1,000
Pedro Atalig $1,000
Diego Benevente $500
Total = $7,750

10. In January 2005, Mr. Pombo and the House Republican leadership changed the House Ethics Rules to prevent any further investigation of Tom Delay who had been three times admonished on the House Ethics Committee.

11. As of February 2006, Chairman Pombo has neither considered a bill to implement the Murkowski bill, nor has he responded to repeated requests to investigate the Abramoff influence on either the Marianas reform bill or the Indian casino industry.

"At the very least, Mr. Pombo should explain to his constituents why he has taken so much money from Mr. Abramoff, his clients, and the Indian tribes interested in casino gambling,"

McCloskey said.

For more information contact:
Robert Caughlan
650 575 9448
www.PeteMcCloskey.com
---------------------------

US delegation leaves Pohnpei with "first-hand island experience"
www.fsmgov.org/press/pr011704.htm

PALIKIR, Pohnpei (FSM Information Service): January 17, 2004 - Congressman Richard Pombo of the United States House of Representative and his Congressional Delegation (CODEL) along with Secretary Gale A. Norton of the US Department of Interior left Pohnpei State with an experience of the island life, "first-hand" during their visit to the seat of the nation.

The welcome for the high-level CODEL was punctuated by the famous heavy rain showers of Pohnpei upon arrival. Mwaramwars and a chorus of songs from the local Head Start - as they waived mini FSM/US flags, continued the display of island-welcome when officials from both State and National Governments greeted the CODEL at the Pohnpei International Airport.

Continued rainfall accompanied their drive to the nation's capitol in Palikir where they met with President Joseph J. Urusemal and Speaker Peter M. Christian of the Congress of the Federated States of Micronesia.

President Urusemal welcomed the delegation to Palikir and explained that rain-shower in local folklores, is a good omen.

The President expressed FSM's appreciation for U.S.'s passage of the amended Compact and thanked, especially, the US Congress for its "swift action" on the amended Compact legislation.He also noted the recent establishment of DOI's Honolulu Office to monitor financial assistance under the Compact and expressed FSM's willingness and commitment to making the amended Compact work to the benefit of both nations.

Along the same line, Secretary Norton said the signed Compact signals tremendous opportunities for both nations to "further strengthen our relationship" and that she is "looking forward to working with the FSM, to go forward with the Compact of Free Association, to go forward with the future." …

During the evening's dinner reception at the Cliff Rainbow Hotel, Chairman Pombo echoed Secretary Norton's remarks when he also referenced Specialist Bermanis's sacrifice. He thanked the FSM for their sons and daughters that are serving alongside U.S's own. Chairman Pombo said their visit to Pohnpei afforded the opportunity for members of his delegation to see and experience first-hand the issues which they have been working on from afar.

Secretary Norton said, "it provided a tremendous opportunity to experience the FSM first-hand." … Pombo chairs the House Committee on Energy and Natural Resources. The chairman headed a CODEL that included: Rep. Eni Faleomavaega from American Samoa, Rep. Frank Lucas from Oklahoma, Rep. Jeff Flake from Arizona, Rep. Dennis Rehberg from Montana, Rep. Dennis Cardoza from California, Rep. Madeleine Bordallo of Guam and a several Congressional staff.

Representing the 11th District of California, Chairman Pombo is serving his sixth term in the House. His personal leadership has been noted as "very instrumental and effective" in the passage of the amended Compact legislation …
-----------------------------------------------------------------------

Pombo introduces rewrite of Endangered Species Act

Sep 26, 2005 9:17 AM
By Forrest Laws, Farm Press Editorial Staff
http://westernfarmpress.com/news/9-26-05-Pombo-Endangered-Species-Act/

Rep. Richard W. Pombo, R-Calif., introduced his long-awaited rewrite of the Endangered Species Act of 1973, saying it was “time to do better” by the plants and animals the law was designed to protect.

Pombo, chairman of the House Resources Committee, was joined by fellow West Coast Congressmen Dennis Cardoza, D-Calif.; Greg Walden, R-Ore.; and George Radanovich, R-Calif., at a press conference announcing the new legislation in Stockton, Calif., Sept. 19.

After the announcement, critics complained the new legislation would cripple the current Endangered Species Act and “punch loopholes in the law on behalf of greedy developers, oil companies and other special interests.” Pombo said the 1973 law simply has not done what it was intended to do...
------------------------------------

http://www.ucinthevalley.org/articles/2002/jan25art1.htm

Former U.S. Congressman Tony Coelho Commits Endowment for UC Merced

Merced, CA - Tony Coelho, a former U.S. Congressman who represented California's Central Valley for more than a decade and pioneering advocate for a University of California campus in the region, has committed an endowed chair to the University of California, Merced. A special ceremony will be held this afternoon (Friday, January 25) in Merced to announce the Tony Coelho Endowed Chair in Public Policy and to recognize his longtime commitment to the 10th UC campus.

"For our campus to have a faculty chair bearing the name of Tony Coelho is indeed a privilege," said UC Merced Chancellor Carol Tomlinson-Keasey. "He is a visionary leader whose work to promote education, disability awareness, agriculture and many other important issues has improved the lives of millions of Americans. Tony Coelho's dedication to public service will live on in the faculty research and education of future leaders made possible through this endowment." …

===================================================

SENATORS DEMAND ANSWERS ON UC PAY
Unreported compensation raises ire at panel's hearing
- Tanya Schevitz, Todd Wallack, Chronicle Staff Writers
Thursday, February 9, 2006
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/09/MNG8JH5HBO1.DTL&type=printable

Sacramento -- Members of the state Senate Education Committee expressed annoyance Wednesday and demanded to know why the University of California has failed to fully disclose its pay practices and follow its own policies.

At a contentious hearing, UC President Robert Dynes faced one difficult question after another and offered a personal apology for the university system's failure to meet its obligations to account for the money it gives employees.

"It is with real regret that I have come to acknowledge that we have not always met the standards others hold us to in matters of compensation and compensation disclosure,'' Dynes said. "My ethics are upset by this."

The hearing was one of a series called in response to reports in The Chronicle that the 10-campus system has paid some employees much more than was reported to the public. Dynes is scheduled to testify again before the Senate committee on Feb. 22. An Assembly committee plans to hold its own hearings in late spring.

At Wednesday's session, senators peppered Dynes with questions about golden parachutes offered to former Provost M.R.C. Greenwood and former UC Davis Vice Chancellor Celeste Rose as well as about hidden pay and perks offered to other executives.

In one of the harshest exchanges, Sen. Gloria Romero, D-Los Angeles, demanded to know whether any UC executives had resigned or been fired in the wake of the payment revelations.

Dynes noted that Greenwood had resigned, eliciting snickers from the audience.

"We heard about what happened to her," Romero replied, referring to a $301,840, 15-month leave she was given after her resignation as well as her cushion of a $163,800 faculty job at UC Davis. Greenwood resigned in November after UC opened an investigation into the hiring of her business partner and son after questions were raised by The Chronicle.

Romero also asked whether anyone at UC was examining whether any of the mistakes "border on criminality."

"Yes, there are internal investigations,'' Dynes said. UC has previously announced an array of internal audits, though this was the first mention of the possibility that any laws were violated.

In general, Dynes admitted that he had sometimes let the university go astray in its secretive approach to compensation.

"It is perhaps true that at times I have been so committed to competitiveness and excellence that I have not been as mindful of the other responsibilities that come with being steward of this public institution," he said.

Half of the senators on the 12-member committee were outspoken in their criticism, some saying Dynes' apologies and promises of improvements ring hollow considering that UC was in the same situation in 1992.

Sen. Jackie Speier, D-Hillsborough, ticked off a series of reforms recommended to the UC Board of Regents back then by retired Legislative Analyst A. Alan Post.

Dynes conceded that UC has continued to provide several executive perks that Post had urged be eliminated. Those include an executive severance pay plan that UC now says is deferred compensation (and is converting to a retirement plan), an executive auto allowance and a special life insurance policy.

"That was something that was asked of you, and you didn't comply," Speier said.
Dynes said a reporting and monitoring system will be put in place to make sure the reforms "stick" this time.

Under questioning from the senators, UC officials admitted for the first time that they had violated policy in secretly agreeing to give Rose, the former UC Davis vice chancellor, $50,000 and a new job that pays $205,000 a year. That agreement came after Rose, who is African American, threatened to sue for discrimination when she was told to resign. Rose's new job doesn't have any regular duties, and UC promised to keep her on the payroll for two years regardless of whether she does any work.

"This should have been approved by the regents," UC attorney Jeff Blair told the committee. "There was confusion as to who was taking action to get it approved. It was an error."

In other cases, Dynes acknowledged that UC administrators had made exceptions to policy to pay employees additional money or perks. Last month, UC drew fire for an exception granted former UC Berkeley Chancellor Robert Berdahl, allowing him to keep the full $355,000 he earned on a 13-month leave even though he plans to quit to take another job before fulfilling his teaching commitment.

Dynes said he had no idea how often such policy exceptions were granted. Until the audits can be completed, Dynes announced, future policy exemptions for senior managers will require his approval in consultation with the regents.

"I want to see the exceptions to see if there are flagrant violations,'' Dynes said. "I am only guessing at this point, and guessing is not a healthy thing to do."

Critics, however, said the new policy does not go far enough.

"Dynes continues to insist that he will consult, rather than requiring approval by, the regents before making exceptions to new compensation policies. That's an insufficient safeguard," said UC Berkeley Professor Bruce Fuller, who led a faculty drive for an independent investigation into the compensation practices. "It's a sugar-coated version of the status quo."

Sen. Jeff Denham, R-Salinas, urged Dynes to impose a salary freeze until the university can finish reviewing and improving its pay practices.

"Why not stop the blatant abuse we have seen and figure it out," Denham said.
Dynes said UC has already frozen executive pay.

"We have had a salary freeze the past three years,'' Dynes said. "I have had no salary increase in three years."

In fact, the UC regents in November approved a retroactive pay raise of 2.5 percent for dozens of senior managers, including Dynes. Dynes' pay, for instance, went up $10,000 to $405,000 as of Oct. 1.

UC spokesman Michael Reese said executive pay had been frozen for three years, despite the recent increases, so "that does not negate the basic point he was trying to make."
------------------------------------

UC provost who quit got questionable perk
$125,000 payment for housing possibly violated policy
Todd Wallack, Tanya Schevitz, Chronicle Staff Writers
Friday, November 11, 2005
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/11/11/MNGFMFMNV01.DTL

…In addition, UC has placed one of Greenwood's underlings, Winston Doby, on paid leave while it investigates whether he did anything improper to help Greenwood's 43-year-old son, James Greenwood, win a paid internship at UC Merced.
----------------------------------------------

PERSONAL PERSPECTIVE
Lessons not learned at UC
Louis Freedberg
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/11/23/EDGVPFS9FO1.DTL
Wednesday, November 23, 2005

WILL THEY ever learn?

The most depressing aspect of the recent revelations by my Chronicle colleagues Tanya Schevitz and Todd Wallack about the lack of transparency in awarding compensation to top University of California employees is that the university went through a similar nail-pulling experience 13 years ago.

In 1992, the university was thoroughly shaken by disclosures that the Board of Regents, in a series of closed door meetings, had awarded then-UC President David Gardner a "deferred compensation" and retirement package worth close to $1 million.

That included an annual pension of $126,000, adjusted annually for inflation, that Gardner, who chose to retire at age 58, would receive for life.

The revelations came during another period of financial duress for the university. During the three years leading up to the Gardner disclosures, student fees had risen by 85 percent. That was the last time student fees had escalated so rapidly until the most recent round of fee increases -- up 79 percent since 2001.

I covered the ins and outs of the scandal, which included publishing transcripts of a closed-door meeting at which regents schemed how to keep details of Gardner's compensation from the press. (As we later discovered, I and other reporters were waiting right outside the room where the regents brazenly discussed how to keep the information from us).

Revelation upon embarrassing revelation followed -- including how the university bought Gardner's house in Utah in order to facilitate his move to California and ended up losing $111,000 on the deal when it sold it later. Gardner didn't want to live in the president's house in Kensington, so the regents gave him a low-interest loan, plus a generous housing allowance, so he could buy a house in Orinda. It even paid for the property taxes on the Orinda property.

The scandal widened when it turned out that 22 other top officials of the university also received similarly secretive "deferred compensation" packages.

The furor reached its peak when then-Gov. Pete Wilson and Speaker Willie Brown showed up at a tumultuous special meeting of the regents to defend Gardner's severance package.

In his memoir "Earning My Degree," published last year by UC Press, Gardner tried to rewrite history by downplaying the seriousness of the scandal.

He blamed the media for its "unremitting, and unrestrained (mostly inaccurate) news reporting" -- even though he never once requested a correction for any of the dozens of stories I wrote about the furor.

In his memoirs, he paid me a backhanded compliment by describing me as "an intelligent and accomplished journalist." But, in a conspiratorial flight of fancy, he concocts a theory that has no basis in fact by suggesting my reporting was driven or manipulated by Ralph Nader, simply because I knew his sister Laura, an anthropology professor at UC Berkeley.

In his 432-page memoir, Gardner leaves out any mention of a lacerating 1992 report commissioned by the university by retired Legislative Analyst A. Alan Post, at the time perhaps the most respected fiscal analyst in California.

"The manner in which compensation issues have been presented, considered and approved during the last 10 years has been seriously deficient," Post concluded. "The imposition of secrecy (regarding executive compensation) appears to have become commonplace, becoming a matter of convenience rather than principle."

Gardner's memoir also neatly leaves out any reference to a 178-page audit by the state's auditor general, also in 1992, expressing concerns about questionable practices by UC officials, including first-class air travel, using university money to pay for a wedding reception and making charitable contributions using UC funds with no clear benefit for the university.

The auditor rejected the argument that some of these perks were paid for from "private funds." "Because UC exists as a constitutionally based public trust, it is an entity of the state," the auditor wrote. "As such, all of UC's funds are state funds and should be expended with similar regard for UC's responsibilities as a public trust."

After Gardner left, new UC president Jack Peltason introduced a range of reforms that promised more openness in disclosing executive compensation. The university, for example, pledged to provide full details of executive compensation to the Legislature and involve UC faculty in helping to set administrative salaries.

So what happened? Gardner went on to become president of the Hewlett Foundation and chairman of the J. Paul Getty Trust. Over time, the scandal faded in memory, and Gardner was lionized by his peers. A smart new addition to the Doe Library on the UC Berkeley campus was named after him.

The transparency promised by the university gradually become more opaque, making a mockery of the "reforms" adopted by the regents -- with the unfortunate results we have seen over the past weeks. As Jeremiah Hallisey, the retired regent who was Gardner's most persistent critic at the time, reflected this week, "If they have to pay these salaries, let's justify it in a public meeting, and let's have transparency."

It's pretty simple. A public university has no choice but to do its business in public.

That is a truism that the University of California has yet to fully embrace. It should not take a lashing from the public and the press every dozen years or so to force it to do so.

Louis Freedberg is a Chronicle editorial writer.
--------

List of SF Chronicle stories on the UC administration pay scandal:

List of execs who got severance
(1/27)
President gets power to boost salaries
(1/19)
Big changes sought in how UC raises pay
(1/13)
Details given on extra pay
(1/12)
Legislative hearing into UC compensation
(12/6)
Ex-provost still on payroll
(11/26)
Freedberg: Lessons not learned at UC
(11/23)
Outrage in Capitol at pay revelations
(11/16)

Editorial: UC's hidden pay
(11/16)
UC refuses to release exec raise list
(11/15)
Student services cut as high-pay jobs boom
(11/14)
Free mansions for people of means
(11/14)
UC piling extra cash on top of pay
(11/13)
Other perks include gifts, travel, parties
(11/13)
Database of highest paid UC employees
(11/13)
-------------

UC Merced introduces foundation board of trustees

http://www.ucinthevalley.org/articles/2000/march1700.htm

...The blue-ribbon board consists of several Silicon Valley executives from such companies as Lucent Technologies and Sun Microsystems. Several current and former members of the UC Board of Regents included in the UC Merced Board of Trustees are current UC Regent chairman, John Davies, former chairs Leo Kolligian, Meredith Khachigian and Roy Brophy, current Regent Odessa Johnson, former Regents Carol Chandler and Ralph Ochoa. In addition, UC President Richard C. Atkinson, and Emeritus Presidents David Gardner and Jack Peltason are members of the new board ...

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Publicly subsidized Merced Grifters to give another "One Whine" concert at state Capitol

Submitted: Feb 08, 2006

“ With a paid lobbyist by their side, the group of two dozen people calling themselves the "One Voice Delegation" will meet with directors, cabinet heads and politicians in the capital today and Wednesday.” Chris Collins Merced SunStar Tues Feb-07-2006

Regular Meeting
TUESDAY, OCTOBER 18, 2005

Regular Meeting – 10:00 a.m.

48. Supervisor Kelsey - Approve the One Voice Program Membership Contribution of $16,982 for FY 2005/2006 and approve the necessary budget transfer. APPROVED AS RECOMMENDED AYES: ALL

Editor,

The One Voice Delegation walks like a political action committee and talks like a political action committee, it collects political contributions from its members and expends those monies on political special interests like a political action committee, except the One Voice Delegation hasn’t registered with the state of California as a political action committee.

According to the minutes of the October 18th 2005 Board of Supervisors meeting (Item #48), the supervisors unanimously voted to transfer $16,982 from the general fund to the One Voice Delegation for expenses in the 2005/6 fiscal years. This lobbying is therefor being subsidized, directly by county residents through taxes!

That money should be clearly recorded and identifiable as to where that funding comes from and how and where it is being spent. An accounting of how those funds eventually return any appreciable benefit to the unwitting taxpayer should be traceable at the end of the process. Without an accurate audit trail these benefits will not be possible to determine.

This audit trail will not even exist if MCAG is allowed to continue expending county general fund revenues without formally declaring its political motivations and complying with the laws regulating those activities.

It would be appropriate and prudent for this group to document all of its donors and expenditures insofar as the lobbying activities outlined in the Sun Star article represent the “consensus” of a very small and select special interest group from among the diverse population of Merced County. Though brash in the scope of its ambition, the One Voice Delegation cannot possibly believe that it represents the consensus of Merced County as a whole.

The rules under which a political action committee must operate are necessarily more stringent than the requirements imposed by the leadership of the Merced County Association of Governments. There are good and logical reasons for this kind of official supervision not the least of which is to avoid even the appearance of any conflict of interest.

While I strongly defend any political groups right to lobby for a cause, I take great exception to them doing so with my tax dollars if I happen to disagree with either their philosophy or their stated agenda. I happen to disagree that this groups stated philosophy would be achieved by their stated agenda.

I see a request for money to build a bypass for Los Banos, and to widen Hwy 99 and to build the UC campus yellow brick road, and I wonder how do any of these projects or funding alleviate poverty, unemployment or traffic congestion, for the people who actually live in Merced County?

I see an effort to regain access to gasoline taxes for road maintenance at the county level, yet I see a county administration dedicated to urban sprawl. Why should the state build or upkeep roads in Merced so that more people can commute from the Valley to jobs in the Bay Area? For that matter, why does Merced county think building better freeways through the county will alleviate the surface traffic congestion throughout the county?

I am not saying that lobbying the state for funding is wrong, although it does clearly highlight how ‘welfare dependant’ the administration of this county actually is, I rather intend to point out that the One Voice Delegation’s is acting as a political action committee and must submit to the same standard and regulations as any other similar organization.

Ms. Steelman, one of the MCAG facilitators interviewed for the SunStar article is indeed charming and adroit at her job! Having participated directly in the MCAG’s previous program ‘Partners in Planning’ I am painfully aware of the process through which the facilitators are able to steer a disparate group of ‘pre-identified’ stakeholders, to a predetermined consensus. The whole process is chilling in its efficiency, imbued with an indomitable sense of self-preservation and when all is said and done demonstrates as little concern with the input of the stakeholder as an Australian shepherd has with the concerns of a lone sheep.

Bryant Owens- Plainsburg (209) 769-0832

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Who bulldozed the Torres farm labor camp and why?

Submitted: Feb 06, 2006

Felix Torres CEQA Scoping Request to Agencies
Feb. 6, 2006

From:

Lydia Miller, President
San Joaquin Raptor/Wildlife Rescue Center
(209) 723-9283, ph. & fax
raptorctr@bigvalley.net
P.O. Box 778
Merced, CA 95341

Steve Burke
Protect Our Water (POW)
(209) 523-1391, ph. & fax
sburke5@sbcglobal.net
3105 Yorkshire Lane
Modesto, CA 95350

Bryant Owens
Planada Association and Planada Community Development Corporation
(209) 769-0832
recall@mercednet.com
2683 South Plainsburg Road
Merced CA 95340-9550

To:

Robert Lewis Director
Merced County Planning and Economic Development
2222 M Street
Merced CA 95340
Phone:(209) 385-7654
via Fax (209) 726-1710

Board of Supervisors Merced County
2222 M Street
Merced CA 95340
Phone:(209) 385-7366
via Fax (209) 726-7977

Board of Commissioners
Housing Authority of Merced County
405 U Street
Merced CA 95340
Phone:(209) 722-3501
Fax (209) 722-0106

Sunne Wright McPeak Secretary
Business, Transportation & Housing Agency
980 9th Street, Suite 2450
Sacramento, CA 95814-2719
Phone (916) 323-5400
Fax: 916-323-5440

Judy Nevis Director
Housing & Community Development
1800 Third Street
Sacramento, CA 95814
Phone (916) 445-4775
Fax (916) 324-5107

Richard L. Friedman Acting Deputy Dir.
Division of Financial Assistance
Phone (916) 322-1560
Fax (916) 327-6660

Kim Dunbar Assistant Division Chief
Phone (916) 322-1560
Fax (916) 327-6660

Janet Marzolf, Section Chief

Asset Management & Compliance Section
Phone (916) 327-2896
Fax (916) 327-6660

Patrick Dyas Program Manager
Office of Migrant Services
Phone (916) 327-0942
Fax (916) 327-6660

Monday, February 06, 2006

Re: CEQA review of proposed new migrant housing in Planada (Merced County), Scope of Project, Analysis of alternatives to project, irregularity in NEPA analysis of environmental impacts; project incompatibility with current County General Plan; misappropriation of federal funding for migrant housing to construct low-income housing. Environmental Justice Abuse.

Ladies and Gentlemen:

We are greatly dissatisfied with and concerned over the actions of the Housing Authority of Merced, especially concerning the demolition of the Felix Torres Migrant Camp, and a documented agreement made with certain Merced county officials by Housing Authority Executive Director, Nick Benjamin in which the County of Merced purportedly required Housing Authority to relocate Planada Village in collaboration with SUDP zoning changes proposed by the County of Merced during the environmental review of Planada’s Community Specific Plan Update (Dec 2003).

As you all may certainly verify, the funding for the proposed renovation of the Felix Torres Camp, and funding for the demolition and replacement of Planada Village (asbestos) was individually encumbered in two separate OMS grant in year 2003. There was also a third grant awarded to the Housing Authority bringing the aggregated total for renovation of Planada Migrant camps to just over $10 million dollars.

Planada citizens were delighted with the concept of renovation of the existing camps, but were solidly in opposition to the idea of moving either camp further away from the community. .

The decision to combine these grants into a single ‘project’ seems to have been solely at the discretion of Mr. Nick Benjamin. [1] No satisfactory explanation was ever given to date as to why the Felix Torres camp could not be rebuilt on its original site. It is clear that Department of Housing and Community Development owns the structures of the Planada Village Camp and contracts with Housing Authority of Merced for the maintenance thereof, and it is also clear the Housing Authority owns the land, and both parcels were and are still zoned for the use of Migrant Housing.

Our contention is that CEQA review should have begun at that point at which Mr. Benjamin decided to move the existing camps to new locations, back in 2003. As a semi-autonomous State Agency, Housing Authority has lead agency status with regard to NEPA review of this proposed project, however, that autonomy does not supercede land use authority in Merced County when a proposed project requires a zoning change, or as in this case, a conditional use permit. (Migrant Housing is not an automatically granted land use on land zoned A-1 Agricultural, there are specific requirements of the County General Plan that must be met and approved, and that process requires public review and opportunity to comment under CEQA).

Mr. Benjamin’s decision to relocate the camp(s), was facilitated by the Central Valley Coalition for Affordable Housing (a non-profit organization formed by the Housing Authority of Merced in 1987), which secured a loan from (or through) Housing Authority to purchase alternate land for the construction of a proposed ‘combined’ migrant and year round camp.

Mr. Nick Benjamin at that time was both the Executive Director of Housing Authority, and the Secretary of Central Valley Coalition for Affordable Housing and it is believed that he had full authority to act on behalf of both organization’s boards with regard to the procurement of the specific 24-acre parcel on Gerard Avenue (the originally intended location to which Felix Torres camp was to be moved).

Public outcry and written opposition to the change in location of Felix Torres Camp presented to the County Board of Supervisors, stalled the project and lead to an elaborate ‘shell game’ of deed transfers and money laundering that culminated in Jan. with the recording of the sale of that parcel to Merced County C.E.O. Demetrios Tatum and his wife. This land sale and all its intermediary steps are currently under the investigation of the Merced County Grand Jury.

Mr. Benjamin is a person who wears many hats in Merced County. Beside those previously mentioned, he also holds a position on the board of the Community Action Agency (a quasi-governmental non-profit agency whose funding, such as Community Development Block grants, is directly controlled by the Merced County Board of Supervisors). Mr. Benjamin also sits on the Workforce Investment Board, (established by statute in 2001 and whose members are appointed by the Merced County Board of Supervisors).

Mr. Benjamin has collaborated extensively with Mr. Rudy Buendia, the director of FirmBuild, (a non-profit corporation involved with other projects in Planada such as the Bear Creek Village) for many years. Mr. Buendia currently is appointed as a Commissioner of the Housing Authority of Merced’s Board of Commissioners (appointed by the District Supervisor for district 1 which includes Planada.) Mr. Buendia also hold an appointed position on the Merced County Planning Commission as a Commissioner (also appointed by the District 1 Supervisor)

Mr. Buendia seems to be in the enviable position of sitting as a voting member of the ‘lead agency’ for the NEPA approval of the proposed new Felix Torres Project, and as an advisor to the ‘lead agency’ for the CEQA review of this same project. Additionally FirmBuild may be involved in the eventual reconstruction of the Felix Torres Camp. Consequently the public has no clear or speedy means of determining whether or not any other inappropriate financial aggrandizement may occur through the eventual release of these encumbered OMS grant funds.

The normal checks and balances, which would preclude such conflicts of interest, are demonstrably absent in a rural setting such as Merced County where one person can wear so many hats simultaneously.

There seems to be a great deal of overlap in the funding streams coming into Merced County through the Department of Financial Assistance of the Department of Housing and Community Development. It is clear to these commentators that the restrictions on the beneficiaries of grant funding through specific programs such as Joseph C. Serna Farmworker housing (which represents about one third of the grant funding for this proposed project) may be effectively circumvented under the aegis of Mr. Benjamin’s proposal.

The Predevelopment Loan Program used to demolish the Felix Torres Camp may have been used in violation of CEQA in that no environmental review was even contemplated for that aspect of the project until during the actual demolition when the commentators did a site inspection and discovered evidence of endangered and/or protected species on site, and brought such information to the attention of Housing Authority. The public will never know whether or not there was illegal ‘take’ of endangered/protected species during the demolition of the Felix Torres Camp buildings, but what is clear from written communications with the Housing Authority is their stated contention was that the contractor would have been liable for the illegal ‘take’.

This demonstrably limited understanding of the Housing Authority’s responsibility for complying with the laws of the State of California and those of the United States does not inspire confidence that this project is proceeding according to established standards of environmental review.

Having brought this situation to the attention of the grantors, it should not remain incumbent upon the public to force an internal audit of this morass; it would seem incumbent on the director of the Department of Financial Assistance or his superiors to follow up on a complaint such as this.

We clearly see and understand the financial incentive Housing Authority has in cooperating with the parties financially interested in securing the zoning changes proposed in the 2003 Planada Community Plan Update; the Planada Village was to be replaced with a zone for commercial development along Hwy 140, and the Felix Torres Camp is directly adjacent to a riparian waterway (Miles Creek) and is being actively sought for the residential development capabilities afforded by the proposed change to low density residential zoning.

Both parcels would appreciate multiple orders of magnitude in value and would represent an irresistible temptation to seek less valuable real estate on which to build replacement migrant housing with the already encumbered grant funding.

While we can appreciate the considerable potential financial benefit of this collaboration to Housing Authority, we can also clearly see conflicts with other applicable land use authorities of the State of California including tenets of the Cortese-Knox- Hertzberg Act of 2000, as it would apply to the provision of municipal services outside of an established SUDP; specific proscriptions under CEQA disallowing a public entity to select a preferred alternative based solely upon the affordability of the land in question; the ongoing environmental injustice being inflicted upon the displaced population; not to mention the near impossibility of evaluating the compliance of this proposed project or any like it with the hopelessly outdated Merced County General Plan.

The community has already suffered the deprivation of the 88 Felix Torres Camp units and has born for three years the added congestion of accommodating those returning migrants in the sparsely available low and very low-income housing. The local economy has suffered commensurately lack of workforce during crucial times of harvest during the last three years.

The public was informed by Housing Authority representatives that the decision to close and demolish Felix Torres Camp was a directive of the State of California, and under the Public Records Act we wish to inspect any written document corroborating that assertion, if such could be identified in the files of any of the above parties to whom this letter is addressed. It is our belief that the decision to close and then demolish Felix Torres Camp was rather retaliatory and punitive of the public who voiced opposition to the political and residential development interests who were clearly the intended beneficiaries of this collaboration.

The citizens of Planada participated in the federal NEPA review of this proposed project. Written comments regarding the draft EA (Environmental Assessment) have not been acknowledged or answered and the Housing Authority acting as its own lead agency has approved their NEPA review. We attach a copy[2] of the submitted comments to assist you in determining whether substantive information has been overlooked in the EA by the ‘Lead Agency’(Housing Authority of Merced County).

Irrespective of the relative weight given to public comment during the NEPA environmental review process, the Housing Authority has now contacted the Merced County Planning Department seeking CEQA review and approval of this disputed project.

CEQA requires that the Lead Agency (Merced County) examine all feasible alternatives to the proposed project, and that the scope of that analysis include all issues identified in the earliest initial study, including, in particular, the intent of the original funding source, and the setting in which those particular funds were encumbered. By completing the NEPA analysis of this project independently from the CEQA review, the Housing Authority has sought to limit the analysis of the environmental impact solely to their preferred alternative. This is both subtle and inappropriate.

Plaintiffs who sued Merced County over the inadequacy of the 2003 Planada Community Plan on behalf of those migrants displaced by the actions of the Housing Authority (closing the Felix Torres Camp in 2003 and demolishing it in 2005) have not abandoned their suit. In fact that suit is currently in 5th Appellate Court in Fresno.

Merced County’s recently disclosed plans to radically expand the SUDP boundary of Planada as part of a County General Plan Update, seek to circumvent and moot the efforts of the appellants.

There is clearly a nexus of growth pressures, lack of sewer capacity, declining economic opportunity, and poverty in Planada that demand a comprehensive environmental analysis. The migrant housing to be built with this funding (encumbered since 2003) is certainly a seminal component of Planada’s housing supply, and crucial in that it will be supportive of the actual agricultural labor force indigenous to the community.

Unfortunately, though, it has come to light that the Housing Authority has no intention of limiting residents of the proposed new Felix Torres Camp to farm workers and their dependents. The overarching intent of providing low-income housing in Merced County on which so many other government subsidized funding streams reaching Merced County tend to depend, would seem to provide an incentive for County Planning to limit the CEQA review of this project. We hope this scrutiny will persuade Housing Authority Executive Director Nick Benjamin and County Planning to honor the actual legislative intent of the OMS grant funding. We wish to somehow ensure that the proposed housing is actually going to replace both the structures and the context that were demolished at the original Felix Torres site. The conclusions presented to the public in the Housing Authority’s draft EA do not inspire confidence that the public’s expectations for this project will be realized.

It seems clear that more specific guidance from the State Agency with direct control over the expenditure of these funds is necessary. Without intending to jeopardize the funding for migrant housing in Planada, may we suggest that Housing Authority is within their authority to rebuild the Felix Torres Camp on its original site, and can do so without abusing Merced County’s land use authority or the public’s trust.

If, as we believe the County of Merced is the land use authority and Lead Agency for the CEQA review of the Housing Authority proposed project on newly acquired property, then we request and require that the Scope of this project be broadened to include the original site of the Felix Torres Camp and all of the previous public involvement and comment on this proposal.

Sincerely,

Lydia M. Miller – President Steve Burke,

San Joaquin Raptor/Wildlife Rescue Center Protect Our Water

Bryant Owens- Chairman

Planada Community Development Co.

Attachment: Draft EA Comments-2005

--------------------------------------------------------------------------------

[1] Housing Authority Board of Commissioner minutes

[2] Comments on Draft Environmental Assessment 2005

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The politics of death in Merced

Submitted: Jan 29, 2006

The newspaper coverage of the tragic death of Greg Gomez, 20, of Merced, has from the beginning raised more questions than it has answered. With each succeeding article, the story gets more obscene.

A Badlands reader suggested that without putting all the official reports of the matter together, end-to-end, it is impossible to tell what actually happened. However, in politically sensitive matters including large private or public institutions, police reports do not always make things clearer.

The best we can do it put the timeline of newspaper coverage of the event in some kind of order and raise questions we believe ought to be asked.

The Modesto Bee reported at 4:15 a.m. on Dec. 20 that Gomez was hit by a car driven by UC Merced student, Antony Jay Ducray, 18, of Los Angeles, about 11:30 p.m., according to a California Highway Patrol report. He was taken to Mercy Medical Center Merced.

CHP Sgt. Sam Samra said the accident happened about 2,500 feet west of Lake Road, near the UC Merced campus. Gomez was wearing dark clothes and walking in the road; there are no streetlights in the area, according to the CHP. Though it wasn't raining, it was cloudy and the streets were wet, Samra said.

Ducray, who was driving about 50 miles per hour, did not see Gomez walking in the road before his car struck him, the CHP reported.

Gomez was thrown into Ducray's windshield, and suffered major injuries. Ducray was not hurt, and a passenger in his car, 18-year-old Daniel Joseph Wilson of Rancho Bernardo, suffered minor cuts to his left hand, the CHP reported.
No one was arrested and the CHP said speeding and alcohol do not appear to have been factors in the accident. The collision remains under investigation.

On Dec. 21, Merced Sun-Star writer Rosalio Ahumada reported that Gomez died about 23 hours after he was struck by Ducray’s car. We got more details of the case.

The UC Merced student was not arrested.

Speeding and driving under the influence do not appear to be factors, the report stated, but the car accident is still under investigation, Ahumada wrote.

Evidently Ducray was tested clean for alcohol and drugs.

Ducray, a UC Merced student from Los Angeles, was driving a 2000 Toyota Corolla westbound on Bellevue Road at an approximate speed of 50 mph when the car struck Gomez.

Gomez was reported to have been wearing dark clothing and walking “on a small paved portion of the shoulder of the road. The road has a larger dirt and gravel portion of the road shoulder.” There are no streetlights on that country road.

Samra, the CHP officer on the scene, told Ahumada, “the road was wet and it was cloudy, but officers reported it was not raining when the accident occurred and there was not any fog or other visual impairments.”

The coroner’s office said it would do an autopsy to establish the cause of death on Thursday of that week. We saw no follow-up on that story but the Christmas weekend was coming and the cause of death could not have been more than the listing of injuries sustained from being hit by a car.

The first question that arises is why isn’t this story being covered by the Sun-Star’s veteran police reporter, Mike De La Cruz? The first report from the Modesto Bee has no byline. The second story was covered by the reporter on the UC Merced beat, at least until shortly after this story. Since January 16, another reporter seems to have taken over UC Merced coverage.

How could the CHP officer know the students were driving about 50 miles an hour? Was he on the scene before the accident? Were there witnesses? Is there electronic speed monitoring equipment on that stretch of road?

The story disappeared for a month only to return this week.

On Tuesday, Ahumada’s apparent successor on the UC Merced beat, Janet Pak, informed us:

University of California, Merced, students who want to stay downtown or enjoy a movie late at night won't have to worry about transportation.

A new shuttle service called "Nite Cat" will run every hour from 10 p.m. to 2 a.m. on Friday and Saturday, said UC Merced spokeswoman Ana Nelson Shaw.

"It helps them be more connected with the community," she said. "A lot of students don't have a car.

"It provides them with a new option to go see a movie that ends late at night or to go eat out at one of the dining locations or see friends who live off campus."

Riggs Ambulance Service, presumably the same ambulance service that took Gomez to the hospital (there is no other in Merced), sponsored the shuttle, “paying $20,000 for the van, fuel and labor costs.” Sounds pretty cheap to me. I wondered if a farm labor contractor could get a van, driver, fuel and maintenance at that price for eight, 20-mile roundtrips a week.

Nite Cat would also prevent people from driving back in poor weather conditions.

"It's not exactly a great drive," he said. "It's dark, narrow and foggy."

There is no evidence Pak even asked if the shuttle might also be connected to Gomez’ death, which would have raised the issue protecting the public against UC Merced students rather than simply protecting UC Merced students from themselves.

At this point, the Badlands editorial board began to study a few UC Merced police reports.

Police Calls...UC Merced calls...Last Updated: January 27, 2006, 07:45:32 AM PST
http://www.mercedsunstar.com/local/policecalls/story/11736459p-12459406c.html
The UC Merced Police Department responded to three calls on Wednesday.
WEDNESDAY
12:35 a.m. -- Officer took student report of a possible burglary.
12:34 a.m. -- Officer checked a suspicious vehicle parked in the staff parking lot.
5:20 a.m. -- Driver verbally warned at a traffic stop at Bellevue and Lake roads.

Police Calls...UC Merced calls
Last Updated: January 24, 2006, 08:05:33 AM PST
http://www.mercedsunstar.com/local/policecalls/story/11724321p-12448098c.html

Saturday
11:05 p.m. -- Driver issued a citation for failing to stop at a crosswalk in the student parking lot by Tulare Hall
10:08 p.m. -- Driver given a verbal warning for failing to stop at a crosswalk on Scholars Lane and Emigrant Pass.
12:49 a.m. -- Driver given a verbal warning for failure to stop at a crossing walk on Scholars Lane and Mammoth Lakes Road.

FRIDAY
10:34 p.m. -- Citation issued for failure to stop at crosswalk on Lake Road south of main entrance.
10:08 p.m. -- Citation issued for failure to stop at crosswalk on Scholars Road.

Last Updated: January 10, 2006, 06:45:36 AM PST
http://www.mercedsunstar.com/local/policecalls/story/11672477p-12400494c.html

SATURDAY
3:33 p.m. --Verbal warning issued for failure to stop at a posted stop sign at Scholars and Emigrants Pass.

UC MERCED CALLS
The UC Merced Police Department responded to 9 calls Friday, Saturday, and Sunday.

SUNDAY
1:22 p.m. -- Driver issued a verbal warning near front entrance to Lake Yosemite.
11:42 a.m. -- Officers assist two male adults stuck in an elevator.

SATURDAY
11:50 p.m. -- Driver of a suspicious vehicle parked in the residential parking lot given a verbal warning.
3:33 p.m. --Verbal warning issued for failure to stop at a posted stop sign at Scholars and Emigrants Pass.
3:01 p.m. --Driver issued a verbal warning during a traffic stop at Bellevue and Lake roads.
2:31 p.m. -- Driver issued a verbal warning during a traffic stop on Scholars Lane at the dining hall.
Driver issued a verbal warning during a traffic stop at Lane and Trovare roads.

FRIDAY
7:37 p.m. -- An electrical fire smell in the east wing of the library determined no fire risk.
8:16 a.m. -- Driver of a vehicle blocking the emergency exit found and vehicle removed.

Last Updated: December 10, 2005, 07:21:14 AM PST
http://www.mercedsun-star.com/local/policecalls/story/11576675p-12309523c.html

UC MERCED CALLS
The UC Merced Police Department responded to 6 calls Thursday and Wednesday

Thursday
5:08 p.m. -- Report of a noninjury hit-and-run accident that occurred sometime in the day in the Lake parking lot.

Thursday
6:33 p.m. -- Assisted a disabled motorist with a flat tire.
5:08 p.m. -- Report of a noninjury hit-and-run accident that occurred sometime in the day in the Lake parking lot.

Wednesday
11:32 p.m. -- Two students in the construction area given a verbal warning.
9:53 p.m. -- Assisted a UC resident assistant in student housing.
6:29 p.m. -- Escorted a staff member to the parking lot.
6:27 p.m. -- Conducted a student welfare check at the request of a family member.

Last Updated: November 24, 2005, 06:50:36 AM PST
http://www.mercedsun-star.com/local/policecalls/story/11517885p-12254904c.html

5:08 p.m. -- Report of a noninjury hit-and-run accident that occurred sometime in the day in the Lake parking lot.

UC MERCED CALLS

The UC Merced Police Department responded to 3 calls on Tuesday.
10:53 a.m. -- Traffic stop on Lake Road at Bellevue Road. Driver was warned.
4:53 p.m. -- Noninjury accident reported at Ranchers and Lake Road.
4:18 p.m. -- Reports of students barbecuing on campus next to dining commons.

Last Updated: October 20, 2005, 06:45:34 AM PDT
http://www.mercedsun-star.com/local/policecalls/story/11373686p-12120637c.html

9 a.m. -- A hit-and-run accident reported in the Lake parking lot. The responsible party returned to the scene.

Badlands editors, after daring to post this police description of the vehicular situation out at the UC Merced campus, got their money down on the question of whether the public would ever see another UC Merced police log.

Lulu from the Badlands Religion desk, who tipples, complained that UC Merced had never offered to pick her up and take her downtown for Blues night and bring her back home all safe and sound, soul full of throbbing bass guitar.

D.A. May Have Served Alcohol to Underage Drinker Who Died
The Novel and The Tape
http://www.mercedsunstar.com/local/story/11741563p-12463552c.htm

Saturday Sun-Star readers encountered a novel of 3,288 words in their newspapers and an accompanying audiotape on the newspaper’s website, concerning a political tangent associated with this tragedy. The story would not have suffered at all if a regular police reporter had done it in a few hundred words, something like:

Merced County District Attorney Gordon Spencer served drinks at the Merced Country Club for an employee Christmas party attended by Greg Gomez. Gomez, 20, later died as the result of being hit by a car driven by UC Merced student Antony Jay Ducray, 18, of Los Angeles. Three hours after Gomez was admitted to Mercy Medical Center, a test revealed a .245 blood alcohol content, about three times the legal limit for driving a car. Gomez was on foot when Ducray’s vehicle hit him.

Spencer said he tended bar at the party for about an hour until the employee-guests went to dinner. He added that he left the party four hours before Gomez was struck by the UC Merced student’s car as he was walking on the side of Bellevue Road .

Spencer explained he had an agreement with three managers at the country club that they were responsible for checking IDs. He said it is possible he served Gomez but did not serve anyone as drunk as Gomez was reported to have been three hours after he was hit.

Chris Collins, one of the Sun-Star’s political reporters, wrote the 3,288-word novel. Collins appears to believe that good district attorneys grow on grape vines or almond trees (the same place they grow good cops) or are as rapidly multiplying in Merced County as his celebrity-of-the-week Greg Hostetler’s housing products. This indescribable travesty of journalism, complete with tape selections, is available at http://www.mercedsunstar.com/local/story/11741563p-12463552c.html. It comes off, whether intentionally or not, as one of the most blatant political hatchet jobs in the paper’s dismal history of political coverage. But it is also, fundamentally, something else: a distraction from who killed whom.

UC bobcatflaksters must have danced on their monitors when this novel was published. People will be thinking about Spencer for days, weeks, forgetting who killed whom, all those fraudulent pay packages for top UC administrators and the new generation of nuclear weapons to be built at UC’s two national laboratories of WMDs.

Other evidence that it was some kind of political hatchet job or a PR diversion is that Collins never shares with his readers who it was who told him Spencer was serving drinks at a private country club employees' party. Nor, in the midst of nothing but a political story around manslaughter, does he ever mention that Spencer has announced his retirement. Nor does he ever list, in this political story about manslaughter, either Spencer’s political friends or his enemies.

Jonathan Arons, a San Francisco attorney who specializes in legal ethics, said Spencer had entered a "very gray" area ethically., Collins wrote, 2,500 words into his masterpiece.

Who might the deep, terribly obscure Arons be?

The only guy in the Badlands organization who took the bet Gomez v. Spencer would be studied in Torts courses by future law students pondering the mysteries of causality was Bobo. Bobo’s in sports.

Compared to the fact of his death, did it matter at all that Gomez was 20 instead of 21? If a 90-year-old senile escapee from a rest home in a dark housecoat on a black walker had been in that place at that time, would she have fared any better than Gomez or a Labrador Retriever? Did it matter that the district attorney, doing a volunteer stint as a bartender for his club’s employee Christmas party, said he wouldn’t deny he might have served Gomez a drink four hours before he was struck by the UC Merced student’s car?

No.

Spencer’s suggestion that there was something called personal responsibility poured gasoline on Collins’ passion to play the political blame game with a tragic mystery that could not be reduced to gotcha without violating common decency.

Why was Gomez, drunk, on foot, two miles from the country club at 11:30 p.m.? It must have been the DA’s fault.

Wrong.

There is another, grimmer possibility that would not have come to light without Collins’ reckless novel. With perhaps better information than the public has, Spencer seemed to suggest at one point on the tape that Gomez had thrown himself into the car. If Collins had not been so intent on lynching Spencer, he might have heard that warning. Having done this stupid thing, he raised the issue of suicide – more doubt and misery for the family he describes with such saccharine bathos in the last several hundred words of his opus. Adn what of the misery of the driver and his passenger?

Forget them: we must have the novel of blame, which will soothe all wounds.

Wrong.

Do Collins’ editors have a shred of common sense?

Bill Hatch

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Wobbly three-legged stool

Submitted: Jan 20, 2006

The three-legged stool

Viewed from an ecological perspective, rooted in the environment of the San Joaquin Valley of California, politically affairs this week seem to be perched on a very wobbly three-legged stool.

The short, skinny leg

When (funded) “value-free facilitators” begin showing up in your community, it is probably time to count the silverware or, from an ecological perspective, inventory the environmental quality of your neighborhood. We have an area called “South” Merced, where, traditionally, minority groups have lived south of the tracks and the highway. Through the years, the city has done a pretty decent job of hustling federal funds to repair and restore old single-family houses and build some multi-family apartment complexes. The county housing authority is located there. However, the area has almost no business, at least business useful to the residents, like a decent shopping center with a supermarket. In recent months, the city has proposed the development of a specific urban development plan for the neighborhood, appointed a citizen’s advisory commission and has engaging consultants to draw up a land-use plan.

What the area needs is development that pays its way for the schools it overcrowds, a decent shopping center with a supermarket, and more employment. A dark thought is that it will the area in which the city will fulfill its low-income housing quotient required to keep its general plan correct. Several new low-income complexes have already been built and more are already in the planning pipeline.

“We’re just glad to be here to facilitate this process,” said the value-free facilitator with a Crash Davis (“Bull Durham”) grasp of cliché, before a group of about 40 at a meeting two weeks ago. A number in the audience were government officials, including three city council members (including the mayor) and two supervisors. A city planner led a significant portion of the meeting.

An elderly resident complained about the governing vocabulary. “My tax bill doesn’t tell me I live in North or South Merced,” she said. “It says Merced. All we want is to have the same facilities throughout Merced.” She described 24 empty streetlights on her street. Later, an officious city councilman told the group those streetlights were in the county, not the city, so the city wasn’t responsible.

“There is something ignorant about this whole thing,” the resident commented. “Let’s use our intelligence and forget this North/South Merced.”

The value-free facilitator and the city planner went right on calling it South Merced, referring to my neighborhood as “Middle Merced.” North Merced is where the growth, induced by the arrival of UC Merced, is rapidly doubling the size of the city.

One of the neighborhood’s present dilemmas is what to do with Carl Pollard, an African-American resident of the neighborhood who, after losing six campaigns for the city council, was recently appointed to it. Less than a month after the appointment, he was charged with driving a car without insurance, with an open container of alcohol and some amount of marijuana in it. He has been fired from his realtor job. If convicted, presumably he would lose his council seat. Pollard led an invocation at the beginning of the meeting.

There are better people than Pollard, a political accident that has happened, trying to work for a decent level of services (at least one supermarket south of the tracks, for example), as development that does not pay its way rages to the north and more “low-income” housing development – horribly impacting schools in the south – is planned for the neighborhood. Perhaps, if they organize themselves, beginning by believing almost nothing of what city and county officials tell them, they will have a prayer the Rev. Pollard shall not lead.

“Value-free community organizing” facilitated from the top down by University of California personnel is illusory. What has worked in a modest way in the neighborhood has been volunteer crime watches that have existed for years. What will make things more miserable is crowding in more low-income residents to satisfy regional low-income housing mandates into an area with a chronically low level of services and usable commercial enterprises.

The fat, middle leg

A year ago, the Sacramento Bee did a series of articles exposing a classic situation of corporate power in diary processing. Hilmar Cheese had been polluting surface and groundwater near its site for years. The San Joaquin Regional Water Quality Control Board had been effectively bought off by the corporation. Publicly embarrassed, the board levied a $4-million fine against Hilmar.

After the state Water Resources Board in November refused Hilmar Cheese’s proposal to pay a fraction of the fine the regional water quality board had levied against it for polluting its area with huge quantities of wastewater, the federal EPA approved a test deep-injection well this week. Presumably, if the engineers on this project are more skillful than on the plant’s last techno-fix, the test will be successful, paving the way for injection of Hilmar Cheese’s 2-to-3 million gallons a day of waste water more than 3,000 feet below the Valley surface.

Meanwhile Hilmar’s corporate lawyers and water board lawyers continue to negotiate a settlement of the fine. The board should hear a new proposal by March, Catherine George, water board attorney, said today.

Vance Kennedy, a retired hydrologist from Modesto, told me yesterday it was as “done deal:” EPA has the power to override the state water board’s decision, on the grounds that deep injection is out of the state board’s jurisdiction over surface and ground water.” George confirmed Kennedy’s report.

“Ground water” refers to the aquifers several hundred feet down from which well water is drawn for domestic and agricultural use.

Kennedy said the EPA is using the analogy of water injection into oil and gas wells to force the products to the surface from beneath impenetrable layers. Hilmar, he said, is supposed to have a 100-foot thick layer of shale deep down, presumably impermeable.

He repeated the point he made in several hearings on the project: that water is incompressible and will move laterally, for miles, until it begins to push salty water up into groundwater aquifers lying above “impenetrable” layers.

“The sad thing is that salty water elsewhere may not show up for years or decades,” he said. He added it might not ever be possible to trace salt-water intrusion into wells back to the lateral pressure caused by Hilmar’s deep injection system.

Worse, Kennedy said, it’s a precedent for the San Joaquin Valley. Every wastewater facility from Redding to Bakersfield will be looking at this technology. EPA approved a number of wastewater deep-injection wells in Florida, providing another decade of rapid growth. The Sierra Club sued in February 2005, citing massive ecological damage. Kennedy said he’d been told Miami effluent has been traced as far away as Bermuda.

This middle leg is overweening corporate power to dominate surrounding communities and destroy their environments. Merced, the second largest dairy county in the nation, is afflicted with Big Dairy, an extremely powerful lobby from county to country devoted to the propositions: Bigger and More. The best comment I’ve heard on the economic philosophy of Big Dairy was from a small dairyman who said: when someday milk is so over-produced it isn’t worth a penny, some dairyman will say it’s a good day to buy cows.

The Hilmar Cheese deal reveals a tendency in our economy toward outright corporate ownership of government. In the lexicon of American politics exists the phrase, which covers the situation so well a book about the political career of a former Merced congressman, Tony Coelho, is titled, “Honest Graft.”

This sort of corruption tends to spiral out of control, as in the present case of the Abramoff affair. Some economists argue that eventually, the power of special interests devours the nation’s substance for the gains of very few, if gigantic firms. In the case of US transnational corporations, the approach has been to cause deep structural unemployment of domestic industrial workers and devour other nations’ substance at very low wages. The process is well advanced in the US, particularly in California, where the state budget is beginning to resemble the budget of Third World nations like Argentina and Chile, raped by utility and development corporations and thrown into the tender claws of Wall Street for the foreseeable future.

The impact of the EPA decision may go far beyond Hilmar.

The housing development industry is a radical example of the domination of sheer financial interest over the construction of subdivisions containing rows of three or four “housing products.” Everything about the structure of this “industry,” from the elaborate system of subcontracting to the pittance the state requires it pay for the schools it overcrowds, is designed to protect the developer investor from any public liability. In employs mobs of illegal aliens, heretofore always called “unskilled farmworkers,” to do highly skilled construction work for well below union wages. It has bought wholesale political and legal attacks on state and federal environmental law. It is pricing out farmers on agricultural land while making large rural landowners who sell for development rich. Development in states like California and Florida has made a mockery of any concept of urban planning.

If the deep-injection fix takes off in the Central Valley, residents and farmers will be the losers but the corporations will be the winners in the near term, which is their only time frame. Meanwhile, laws that haven’t already been written will be written to limit or exempt them from liability. But, one might object, wastewater facilities likely to jump on this fix are public entities. They are public entities driven every step of the way into surface and groundwater pollution by private development corporations. The system to protect the genuinely public interest is broken, corrupted, for sale, less and less often these days with even a pretence of being other than for sale. Growing numbers of rightwing politicians aggressively promote the ideology that public policy ought to be for sale to the highest bidder. Up and down the ranks of the Republican Party, this is considered to be “the hard, right decision.”

The local glaring, daily example is the loss of rights of existing residents of a region to the same quality of life they had before a UC campus was located in their county and development took off, running roughshod over law, regulation and resources. Against the local land-use authorities’ power to reject projects under the California Environmental Quality Act is the constant drum of developer propaganda: “Growth is inevitable.” You hear it on street corners out of the mouths of people who were once citizens but now passively accept the role of being mere subjects of alien, hostile government. It makes you wonder what else could have been done with all the money it took to convince Californians of this suicidal proposition that has, in 30 years, distorted this state out of all self-recognition, that has replaced, for private gain, a state composed of cities, towns, communities with abundant natural resources and rural economies of hope, with a slurbocracy of mere subjects.

Hilmar Cheese, “largest cheese plant in the world,” is using demonstrably bad Florida technology because its industry largely owns its regulators. Not that the EPA needed much encouragement to worsen the environment of the San Joaquin Valley. Its present administrator started his scientific career at Litton Bionetics, one of the nation’s leading developers of chemical and biological weapons: he is the perfect Bush fox for the EPA henhouse.

But, in our terribly contemporary political culture here in the 18th Congressional District, in Rep. Dennis Cardoza, Shrimp Slayer-Merced, we have the epitome of the emerging one-party state, under the relentless pressure of special interest corruption. Cardoza is referred to locally simply as the south end of O Pomboza, the northern end being Rep. RichPAC Pombo, Buffalo Slayer-Tracy. Pombo is an exemplary modern American fascist, complete with his corruption problems linked to Abramoff, who he denies knowing, and his strong penchant for breaking laws he can’t change, like the Endangered Species Act.

The EPA decision leaves people to believe – and they are definitely meant to believe – they are powerless to stop this level of pollution, corporate irresponsibility and corruption, because the corporations, the Pomboza and the regulating agencies don’t give a damn about the people and believe they exist to do the bidding of the least responsible whim of the corporations who effectively own their own regulating agencies. Some political theorists call this form of government corporatist and describe it as a precursor to fascism. We will content ourselves with the homey old American expression, “honest graft,” well established in government during the McKinley administration, apparently the guide to all domestic politics in the W. administration.

There are residual American political tactics against such corruption. People concerned about this well and its implications for the future of groundwater in the Central Valley ought to consider starting a national boycott against Hilmar Cheese products. A boycott has the old-fashioned charm of asserting the dignity of human communities in the face of inhuman corporate power. People might find it a refreshing diversion from being oppressed and depressed by decisions affecting their lives over which they have no control.

The long, weird leg

A preface is required to begin to describe the last leg of the current stool. I’ve chosen a passage from Douglas Dowd’s book on Thorstein Veblen, an American economist who wrote this during the McKinley administration, at the turn of the 20th century:

“Business interests urge an aggressive national policy and businessmen direct it. Such a policy is warlike as well as patriotic. The direct cultural value of a warlike business policy is unequivocal. It makes for a conservative animus on the part of the populace. During war time, and within the military organization at all times, under martial law, civil rights are in abeyance; and the more warfare and armament the more abeyance … a military organization is a servile organization. Insubordination is the deadly sin. (The Theory of Business Enterprise, Thorstein Veblen, 1904, p. 391)

What is true of those directly involved in the military applies also to the civilian population in significant degree:

“They learn to think in warlike terms of rank, authority, and subordination, and so grow progressively more patient of encroachments upon their civil rights … At the same stroke they (patriotic ideals) direct the popular interest to other, nobler institutionally less hazardous matters than the unequal distribution of wealth or of creature comfort. (Ibid. p. 393)

But for those who might see this as a triumph of business enterprise over the threat of social change led by workers, it is turned by Veblen into a hollow triumph. For, if the discipline and values of the warlike and patriotic society may “correct” the institutionally disintegrative trend of the machine process, it is just as probable that, for the same reasons there would be “a rehabilitation of the ancient patriotic animosity and dynastic loyalty, to the relative neglect of business interests. This may easily be carried so far as to sacrifice the profits of the businessman to the exigencies of the higher politics (Ibid. 395).

Thus, Veblen sees the system of business enterprise caught in a terrible historical dilemma: If, to offset the institutional and threatening imperative of industrialism, it encourages, or acquiesces in, developments that will cause social unrest to “sink in the broad sands of patriotism,” it is faced with the equal probability that what is quicksand for one will sooner or later pull down the other.

The last paragraph of the Theory might be Veblen’s epitaph for the system of business enterprise:

“It seems possible to say this much, that the full domination of business enterprise is necessarily a transitory dominion. It stands to lose in the end whether the one or the other of the two divergent cultural tendencies wins, because it is incompatible with the ascendancy of either. (Ibid. p. 400)

(Thus, in the late 1930s, German industrialists who had supported Nazism as a “corrective discipline” for the political and economic troubles of the early 1930’s found themselves increasingly harassed by regulation, taxation, and general interference in their affairs by Nazi Party and Wehrmacht functionaries.) – Thorstein Veblen, by Douglas Dowd, 1964, pp. 52-53.

In our suddenly radical contemporary experience in Merced, we now host UC, a university whose two national laboratories of mass destruction are now competing for the design award for new nuclear weapons. Therefore, we must ask, for what end, the Cold War having ended some years ago? Our current, neo-McKinley imperial administration cum dynastic, monarchal pretensions, aims at nothing less than world domination. Like the Nazis, the neocons didn’t come to power just to regulate, tax and interfere with business. They came with a plan for world domination. Read all about it at the Project for the New American Century (http://www.newamericancentury.org).

The details of the vision really don’t matter nearly as much as the absurd fact of the vision itself “for the spread of American ideals.” For the neocons, the vision is the only fact that matters. One observes the tendency daily in the president. In fact, as opposed to vision, America cannot even fight successfully in two war theaters, let alone the many anticipated by the PNAC. And their he-man, Ariel Sharon, is in a coma.

On the other hand, they have our UC to build new nuclear weapons.

The fat leg should be called by its name: totalitarian ambition. It has not happened yet. The Alito confirmation hearing was held up for a week. Investigations of scandals mount. The drums for impeachment tap, if inaudibly to the ears of American subjects. However, “yet” is a highly ambiguous term in such a moment, because, although we are aware of the velocity of change, we aren’t able to measure it accurately, in large part for lack of honest media. The totalitarian ambition has been an old dream of American industrialists and financiers, evident to Veblen in 1904, far more overt before the two world wars, and the Bush family has been heavily involved in it since before WWI.

The only question of any importance today is whether the American people have the intelligence to see it and the energy left, in this rapidly decaying economy, to resist it, particularly without an effective opposition political party. Appeals to the ideals of the US Constitution and Bill of Rights fall on largely deaf ears. The fundamental right for which American subjects of the British crown fought was the right of political participation. After a century of fraudulent commercial advertising and government propaganda, is there enough citizenship left in the subject population to resist the neocon plan to make the Mideast safe for Israel, US oil companies, conduct an eternal Indian War against Arabs, and subject the US population to enough terror so that it doesn’t notice the absurdity of the neocon vision and the destruction of both the domestic economy and its environment.

The question is important, however, as a preliminary to the larger, more dangerous problem of how we confront global warming and lesser forms of environmental destruction. We haven’t a prayer of avoiding the global tipping point without strong state regulation of corporate environmental destruction. It also leads one to wonder just how many UC-built nuclear bomb blasts it would take to tip the planet over the edge. It is hard to imagine anything more destructive to the environment than a nuclear bomb. But, UC Merced is an environmentally conscious campus.

And they ask why the public mind is boggled so often these days.

Veblen’s prognosis for American business is a useful anchor:

“It seems possible to say this much, that the full domination of business enterprise is necessarily a transitory dominion. It stands to lose in the end whether the one or the other of the two divergent cultural tendencies wins, because it is incompatible with the ascendancy of either.” (Ibid. p. 400)

“Full domination” has been achieved all too successfully. The rule of law is rapidly crumbling before this full domination. Law was the arena in which the divergent tendencies met and argued. Without law effectively protecting the rights of citizens, the United States of America ceases to be itself and the voice of reason is drowned by the screaming antinomy between privileged and desperate subjects in a rapidly deteriorating environment. The reasonable solution would appear to be something less than “full domination of business enterprise,” beginning with regulatory agencies that are permitted to perform their necessary public function, uninfluenced by either political pressure or foxes in henhouses. The political irony is that business enterprise would have to call for a rapid, perhaps radical reduction of its domination in order to save the system of government that nurtured its rise to power. That would require an act of reason probably beyond the capacity of corporate attitudes today and equally beyond the capacities of its bought and sold political class. The real road to Hell has been paved with done deals between special interests and government.

But that’s just how things look from the middle of the San Joaquin Valley in California.

Bill Hatch

Notes:

Hannah Arendt: Origins of Totalitarianism, On Revolution

Douglas Dowd: Thorstein Veblen

Hilmar Cheese Permitted to Drill Test Well
http://www.mercedsunstar.com/local/story/11676192p-12403995c.html

Mancur Olson, The Rise and Decline of Nations

Brooks Jackson, Honest Graft: Big Money and the American Political Process

Upgrades planned for U.S. nuclear stockpile. Agency leader expects significant warhead redesigns...James Sterngold
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/01/15/MNGTTGNL5P1.DTL&type=printable

Kevin Phillips, American Dynasty: Aristocracy, Fortune, and the Politics of Deceit in the House of Bush

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Novel legal theory

Submitted: Dec 02, 2005
Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif. “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future."

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges. It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases. – Frank O’Donnell, TomPaine.com – Dec. 2, 2005

Big polluters and environment destroyers are operating under a new legal theory: if legislation weakening environmental law and regulation might have been pending when they committed their illegal acts under existing law, they might be able to skate. For people interested in rural excursions in Merced County, a trip down White Rock Road in Le Grand from the entrance to the Jaxon Mine all the way to the Madera County line at the Chowchilla River would reveal interesting examples of projects that assume this new legal theory. The idea behind the deep ripping of thousands of acres of seasonal pasture containing protected wildlife habitat seems to be that the Gut-the-Endangered Species Act bill by Congressman R.D. Pomboza, Species Slayer-Tracy/Merced, could get through the Senate, so “let her rip.”

Bill Hatch
---------------------------------------------

Polluter Playtime (1)
Frank O'Donnell
December 02, 2005

Frank O'Donnell is president of Clean Air Watch, a 501 (c) 3 non-partisan, non-profit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.

In a move virtually unnoticed by the press corps, the Bush administration this week quietly dropped a lawsuit against a big electric power company.

The suit against Duke Power Company was brought by the Clinton administration, which accused Duke of illegally spewing too much pollution into the air. The Bush team initially gave lip service to continuing the suit, but it shelved the case after a setback in a lower court.

In the process, the administration demonstrated a phenomenon that is becoming increasingly apparent: For a government seemingly obsessed with promoting the “rule of law” everywhere from Iraq to Mongolia, the Bush administration can be pretty loose when it comes to enforcing the law back home.

Especially when it comes to enforcing environmental laws such as the Clean Air Act.

Whether it’s dealing with coal-burning electric plants in the Midwest or auto emission inspections in Ohio and Kentucky, the administration has decided it won’t even attempt to enforce the law if it seems inconvenient to big polluters or to Republican-controlled state governments.

This isn’t a trivial matter. Hundreds—perhaps thousands—of Americans are dying unnecessarily each year as a direct result of the administration’s cavalier disregard for the law.

The administration’s negligence is perhaps topped only by its brazenly false claims about its enforcement prowess. Consider, for example, the hypocritical assertions made last month by Granta Nakayama, the Environmental Protection Agency’s head of enforcement, as the agency issued a status report on its enforcement efforts.

Nakayama (who, until recently, was a corporate lawyer-lobbyist paid to undermine clean air controls) contended that “EPA's enforcement strategy and accomplishments demonstrate our commitment to achieving cleaner air, cleaner water and healthier communities."

To back his claim, Nakayama cited 10 recently resolved air pollution cases against corporate polluters. Those 10 cases would eliminate 620 million pounds of pollution and bring more than $4.6 billion in public health benefits, including “reductions in premature mortality, bronchitis, hospitalizations and work days lost.”

What Nakayama left out was that half of the results came from cases brought by the Clinton administration. These were prosecutions of electric power companies that violated the law’s “new source review” provisions, which require smokestack industries to modernize pollution controls when they increase emissions.

Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif. “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future."

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges. It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases.

Take, for example, Cinergy, the conglomerate that provides electric power in Ohio and Indiana. Five years ago—in December 2000—Cinergy reached an agreement in principle with the Clinton administration, which had accused it of violating new source review. Cinergy pledged at the time to reduce 1 billion pounds of pollution—more, in other words—than all the “top 10” cases combined that Nakayama boasted about.

But after the 2000 elections, the company refused to sign the deal. Now, Cinergy is asking a court to dismiss the charges because of the Bush administration’s decision not to enforce the law against other companies. Cinergy no doubt will be encouraged by the administration’s change of heart in the Duke case.

The “refocused” Bush policy of non-enforcement unfortunately is spreading like the avian flu to other sources of pollution.

For instance, the states of Kentucky and Ohio recently decided to abolish auto emission inspections in the Cincinnati metropolitan area even though an American Lung Association report documented the area had 19 days this summer with unhealthful air quality.

Auto inspections do help reduce pollution, and EPA rules stipulate that smoggy states such as Ohio and Kentucky can’t just scrap pollution control programs that they don’t like. Except that, once again, the EPA says it’s not going to enforce the law.

“Illegal and irresponsible,” is how the American Lung Association describes the situation.

So you do have to marvel at the chutzpah of an EPA spokeswoman, who recently declared that, “We will continue to rigorously enforce any violations of the nation’s clean air laws.”

Except, that is, when the Bush administration doesn’t feel like it.

Notes

(1) http://www.tompaine.com/articles/20051202/polluter_playtime.php

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