California Supreme Court Clears the Cobwebs

California Public Records Act (CPRA) gave the public access to government documents and records in 1968, "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (§ 6250.) But it was originally designed to deal with paper documents. Today, much of governments activities take place in the digital realm, and may take place outside the office, often using private e-mail and other digital means.

Here, we hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act."

So when Ted Smith requested disclosure of 32 categories of public records from the City of San Jose, and other agencies, and officials in June 2009, he was disappointed when e-mails and text messages "sent or received on private electronic devices used by" and "on the personal accounts" of the mayor, city council members, and their staffs were not disclosed. He sued the City, arguing that CPRA defines "public records" as all communications about official business, regardless of how they are created, communicated, or stored. The City maintained that such messages "are not public records because they are not within the public entity's custody or control." The trial court agreed with Smith and ordered disclosure, but on appeal the higher court stayed the disclosure.

Now, in a unanimous decision filed on March 2, 2017, the Supreme Court has reversed the Court of Appeal: "Here, we hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act."

Reacting to the decision, Angela Calvillo, Clerk of the Board of Supervisors responded that "This is nothing new for the Members of the Board. Since the lower courts decision, I personally brief the Members, (including the new Members and their Legislative Staff) and I can tell you they understand and operate as city employees if they use their personal account to communicate official business the content may be subject to disclosure…"

Board Clerk Calvillo is to be commended, but City Attorney Dennis Herrera, who provides guidance for the other 40,000 full and part-time City employees has been less forthcoming. Sunshine activists have long been disturbed by Herrera's obstinate blocking of public access to records. John Coté, Communications Director for his offices, responded meekly, "We are aware of this opinion and we're reviewing it. We will be communicating to city employees about it in an appropriate manner."

A particular bone of contention between the City Attorney's Office and the Sunshine Ordinance Task Force has been the City's contention that older e-mails stored off-site are too burdensome to access, and therefore need not be disclosed. Herrera's Good Government Guide opines, "… departments need not search their back-up electronic files in response to a public records request. Back-up files serve the limited purpose of providing a means of recovery in cases of disaster, departmental system failure, or unauthorized deletion. They are not available for departmental use except in these limited situations. Electronic records such as e-mails that an employee has properly deleted under the department's records retention and destruction policy but that remain in back-up files are analogous to paper records that the department has lawfully discarded in the trash but may be found in a City-owned dumpster. Neither the Public Records Act nor the Sunshine Ordinance requires the City to search the trash for such records, whether paper or electronic."

David Snyder, Executive Director of the First Amendment Coalition agreed, "Smith v. City of San Jose helps clarify the definition of "owned, used or retained" under the CPRA. Specifically, it applies that definition to e-mails sent via personal (i.e., nongovernmental) e-mail, concluding that such records are indeed "owned, used or retained" by the government agency, even though the records are no longer literally within government possession, in the sense that they are not held on government-owned servers.

"Analogizing to the physical world, it stands to reason that if records are removed from city offices and taken, for example, to the private home of a city employee or to an off-site storage facility, they would and should still be considered to be "owned, used or retained" by the city and, thus, subject to the disclosure requirements of the CPRA."

It would be "appropriate" now for Herrera to revisit his "Good Government" model.

March 2017

New Laws for 2017 –
How Aware are You?Governor Brown signing legislation

With the New Year celebrations, the swearing-in of a new administration in Washington, and new local politicos, taking office, you, may have missed the advisement of all of the new laws that took effect on January 1.

What you may not know is how busy the California legislature was in 2016, and some of the new laws and statutes. The members of the State Assembly and State Senate sent a whopping 1059 pieces of legislation to Governor Jerry Brown's desk for signature in 2016. Of those, the Governor signed 898 bills into law, vetoed 159, and let two become law without his signature. While many of the laws are fairly esoteric or a small tweak to an existing measure, there are several that could have a big impact if you run "afoul" of them.

Drivers are only allowed to activate or deactivate a feature or function on the device with a single swipe or tap and cannot do that while holding the device”

First and foremost is the new law regarding cellphone use while driving in a vehicle. While it has been against the law for several years to talk without using a hands-free device in your car, the new law (aimed at those who text) takes it one step farther: Californians are no longer allowed to use a handheld wireless telephone or wireless electronic device while driving, unless the device is mounted on the vehicle dashboard or windshield in a way that doesn't inhibit the driver's view of the road. Drivers are only allowed to activate or deactivate a feature or function on the device with a single swipe or tap and cannot do that while holding the device. Hold your phone in your lap and look down at the screen at your peril. The fines are high (exceeding $200) and are being strictly enforced, according to the CHP.

Senate Bill 491 also affect drivers as it prohibits them from wearing headsets, earplugs or ear buds in or over both ears while operating a vehicle or bicycle.

Another new law affecting you and your car is SB 838, which increases the vehicle registration fee from $43 to $53 beginning on April 1.

AB53, passed in 2015 but just now going into effect, requires that all children under the age of 2 be fastened into rear-facing child safety seats. There is an exception for children who weigh at least 40 pounds or are at least 40 inches tall. Children under the age of 8 are required to ride in the back seat.

SB3 raised the California minimum wage from $10 per hour to $10.50 per hour for all businesses that have over 26 employees. Of course it is already higher in San Francisco.

powdered alcoholPer SB 819, alcohol in a powdered form (yes it does exist) is now illegal to possess, sell, manufacture or use. It includes powdered alcohol that can be combined with water or other liquids to be reconstituted, but does not cover "vaporized" alcohol. Speaking of alcohol, beginning on January 1, it is now legal for beauty salons and barbershops to serve free wine and beer to their clients until 10 PM.

Voter registration and mail-in balloting: AB1436, passed in 2012 but just now taking effect, allows people to register to vote on Election Day, with county election HQ serving as election hubs starting two weeks prior to Election Day. It allows for "conditional voter registration" which means the ballots aren't counted until officials verify that the voter is eligible and hasn't cast a ballot elsewhere. Current law cuts off voter registration 15 days prior to an election. SB450 also make casting a ballot much easier, as voters can now return mail-in ballots to any county elections office in the state, not just in the county that issued the ballot.

AB 1386 allows businesses to stock "EpiPens" in case there is a need to treat people suffering from life-threatening allergic reactions. The law allows pharmacies to give the devices to college, private businesses and other venues that have a plan in place for using them.

AB1732 requires that all single-user toilet facilities in any business or public place to be "all-gender" facilities.

Homeless students at Community Colleges: Under AB 1995, all community college campuses with shower facilities on campus must allow homeless students who are enrolled, paid, and in good standing to use the facilities. Another law, AB 1747, requires public and private institutions that offer food services to apply for a state-funded program that provides food for homeless students.

Assault Weapon law: Voters passed a law that will require all Californians who own gun magazines with more than 10 rounds to give them up, starting July 1. Buyers must undergo a background check before buying ammunition and will be barred from buying new weapons that have a "bullet button, " which were developed by manufacturers to circumvent the state's assault weapons ban. A bullet button allows a gun user to quickly dislodge the gun magazine using the tip of a bullet.

AB 30 bans the use of the name "Redskins" from all California public school sports teams.

Sexual assault clarification: A person who sexually assaults an unconscious or severely intoxicated person will become a crime that is ineligible for probation, under SB 2888.

Right-to-die legislation: Terminally ill patients in California will now be allowed to use experimental drugs, which do not have full regulatory approval, to decide when they want to end their lives. It authorizes, but does not require health plans to cover investigational drugs and protects physicians from disciplinary actions if they recommend them once other treatment options have been exhausted.

These are just a few of the 898 laws that were passed. To see more of the new legislation go onto the website of the State of California.

February 2017

Measure RR: Keep BART Safe and Reliable

On your November 8 ballot, you have the opportunity to dramatically improve our regional transportation system. Measure RR is a $3.5 billion bond measure to keep BART safe and reliable after 44 years of operation. This funding will allow BART to replace over 90 miles of old rails, upgrade its 1960s train-control system, repair aging tunnels, update electrical power systems, and enhance existing stations. This will be the first time since its opening in 1972 that BART has asked the voters to fund major renewal of its essential infrastructure.

Measure RR is the culmination of years of work by a new generation of BART leadership committed to reinvesting in the core. These efforts began by securing funding to replace BART’s aging rail cars with new trains that will begin to be put into service early next year. BART has also transformed how it does maintenance, shifting from a system that simply reacted to malfunctions and urgent repairs to one that proactively repairs and upgrades equipment before problems occur. This has nearly doubled the number of miles each train car can travel before it experiences a breakdown, and has made BART the best subway system in the country in terms of portion of its fleet stuck in maintenance yards.

With the funding that Measure RR will provide, BART can take the vital next step in this turnaround. In addition to maintaining safety and reliability - these investments will allow BART to significantly increase capacity. Power upgrades and a modern train control system will allow BART faster and more frequent service, accommodating nearly 200,000 additional daily riders. This additional capacity is more than the daily ridership of Muni Metro and would represent the single largest increase in public transit capacity in the history of the Bay Area.

Many Westside residents do not have a BART station nearby, but BART is a critical piece of our Bay Area transportation system that helps everyone get to work. These fundamental infrastructure investments are essential even for those who don’t ride BART, such as Muni riders and car commuters. More congested streets and highways are what we see when BART is unreliable, or when it can’t keep pace with regional growth. For example, studies found that without BART, congestion on the Bay Area’s busiest highways would triple.

Measure RR investments will also generate deep environmental benefits. BART already has the lowest greenhouse gas emissions per passenger mile of any major US rail system. Upgrading BART’s electrical infrastructure will allow more on-site solar power at BART stations and yards, helping BART deliver its commitment to go to 100% renewables by 2025. And increasing BART’s capacity is also one of the most cost effective tools to get drivers off the road, reducing greenhouse gas emissions and helping improve our air quality.Westside residents know as well as anyone the importance of clean air and livable streets that aren’t clogged by an endless procession of cars.

When BART works, we all benefit.

BART is at a critical moment. Without meaningful investment, declining reliability and capacity constraints will undermine our sustainability goals, increase roadway congestion, and disrupt access to jobs and services. On November 8, it’s time to take responsibility for our transportation infrastructure, and rebuild BART from the ground up. Please vote yes on Measure RR.

November 2016

PROP C: A Lot of Bang for the Bucks

San Franciscans will have Proposition C before us on the November ballot. It is a very simple measure to allow already-approved bonds to be used for one of the City's most pressing issues of our day—preserving housing affordable for low and middle-income San Franciscans.

…what's the impact to Taxpayers from Proposition C? Nothing. Updating the 1992 bond would address today's housing needs without any increased costs to voters."

Proposition C would expand the eligible uses from the 1992 seismic safety bond for unreinforced masonry (ie, brick) buildings to also include the rehab of at-risk residential buildings, including wood-frame "soft story" seismic retrofits and other fire, safety and code upgrades, and in the process allow the buildings to be made permanently affordable. There are at-risk buildings scattered across the City, usually small mult-unit apartments like in the Mission, Castro, SoMa and Richmond, and along commercial streets.

With $260 million in remaining bond authorization, that could result in over a thousand homes brought up to safety and long-term affordability.

It is a lot of bang for the bucks, a smart investment for the City in maintaining the value of residential buildings as part of San Francisco's infrastructure.

And you might ask, what's the impact to Taxpayers from Proposition C? Nothing. Updating the 1992 bond would address today's housing needs without any increased costs to voters. No new bonding capacity would be created beyond what was previously authorized. Prop C also includes oversight and transparency provisions to ensure accountability.

Finally, as important, Prop C is an urgent anti-displacement initiative, funding the preservation of existing homes to provide stability for tenants at risk of evictions. Often these tenants are facing threat of Ellis Act evictions, which can be avoided if the buildings are acquired on the market and made permanently affordable housing for those residents and other low and middle-income tenants in the years ahead. Proposition C is an important step toward ensuring stability and housing for all.

Proposition C is endorsed by the Coalition for San Francisco Neighborhoods and the San Francisco Neighborhood Network, and supported by Supervisor Yee and all other members of the Board of Supervisors, as well as the Mayor. Join us in making this great investment in housing!

Peter Cohen is the co-director of the Council of Community Housing Organizations, George Wooding is the President of the Coalition for San Francisco Neighborhoods.

September 2016

Thank you Chief!

First off, I do not personally know Police Chief Greg Suhr and was disheartened to read that he resigned. He was a year ahead of me at St. Ignatius but we never crossed each other's paths over the years to really get to know each other. I know people close to him, and know a lot of the rank and file. I have read about his career over the years through the newspapers and have always rooted for him.

As a native you grow up competing against other schools like Riordan, Sacred Heart, Lowell, Lincoln, to name a few, but as you get older you root for them as fellow San Franciscans, and wish them all the best because the City is the common bond we all have.

Whether you liked the Chief or not, which I do, I can tell you one thing, Greg Suhr would never sell out the City. And as Al Pacino said in the movie Scent of a Woman, "That is called integrity.”

 

In my opinion, he is the first Police Chief hired over the last 20 years based on qualifications and not based primarily on race or gender. The prior chief was selected by our previous Mayor who was running for governor and needed the Hispanic vote. Do I have anything personal against this man? No. Was he qualified? Probably yes. Was he hired for the right reason? No. He wasn't hired for the best interest of the City but for the best interest of a political campaign. But what else is new.

That's why Chief Suhr was different. Whether you liked the Chief or not, which I do, I can tell you one thing, Greg Suhr would never sell out the City. And as Al Pacino said in the movie Scent of a Woman, "That is called integrity."

There are over 1700 police officers who protect our City every day. I thank you all for that. Just because a handful make bad judgment calls shouldn't overshadow all the positives. Keep in mind that we all have our differences, but we all bleed red, and we are all in this together. There isn't one organization in the world without a couple of bad eggs.

I will continue to root for Greg since I know his heart is in the right place. And that heart is in San Francisco.

John Farrell Broker/Realtor® – Farrell Real Estate, MBA, Former City Asst. Assessor-Budget/Special Projects, 5th Generation San Franciscan, Westside resident - farrellreinvestments@yahoo.com

June 2016

Harvesting the Cannabis Taxes

With Governor Jerry Brown’s signatures on AB 266, AB 243 and SB 643, California took historic and progressive steps to collect taxes and provide a regulatory framework for California’s 20 year-old medicinal Cannabis Industry, bringing an underground economy out of the shadows.

...it is still classified as a Schedule I Controlled Substance and banks or credits unions face the threat of criminal prosecution if they provide banking services to medicinal (or recreational) cannabis operations.”

Local control will be the basic component of the new regulations that state and county officials will now begin to consider in public meetings and legislative research.

The core effect of the new laws will be to strengthen the rights of local officials to levy taxes, regulate land use and zoning, and specify rules of cultivation and sales.

Despite the current federal administration’s hands-off policy toward marijuana, it is still classified as a Schedule I Controlled Substance and banks or credits unions face the threat of criminal prosecution if they provide banking services to medicinal (or recreational) cannabis operations. This remains true even if financial institutions follow the federal guidance of the Financial Crimes Enforcement Network (FinCEN) issued by the Justice Department and Treasury, as well as the money laundering provisions of the Bank Secrecy Act of 1970.

Job one: get Medicinal Cannabis Dispensaries (MCDs) banked. This is the first step because that would allow California to get back the taxes it is owed. In 2014, according to Fiona Ma, Member of the State Board of Equalization (SBOE), $28 million of sales tax was collected from licensed dispensaries—only about 35% of the MCDs in operation in the state. That leaves about $73 million uncollected from the Medical Cannabis Dispensaries that are not paying sales taxes.

During a Presidential election year it is unlikely that the federal government will address the conflict between federal and state laws. The state needs to step up and find a creative proposal to bank this well-established industry. Assemblymember Jim Wood, D-Healdsberg, has introduced AB 1549 to create a credit union within the SBOE. Keep an eye on this next year when the Legislature reconvenes.

California needs to provide leadership to resolve this legal roadblock. What this state adopts will force the federal government into action, let’s hope they get it right.

November 2015

Bad Apple Alert

The “Clean Power” ballot initiative many people encountered as signature gatherers circulated in the last few weeks is actually an effort by long-time opponents of clean power alternatives to assure that it will never happen. Many people who were duped into signing the petitions were assured that they were supporting clean power, public power or renewable energy. They may be surprised to learn that its restriction to 100% renewables would make obtaining commercial energy very nearly impossible in the real world—there is no such thing as 100% renewable power. A system without some fossil fuel capabilities or access will fail under high stress situations —proponents do not apply these restrictions to the current power monopoly.

… its restriction to 100% renewables would make obtaining commercial energy very nearly impossible in the real world—there is no such thing as 100% renewable power.”

If proponents of this measure wish to assure that the status quo continues unabated, why not just put the question on the ballot in a straightforward manner?

State law specifically prohibits “Willfully and knowingly circulating, publishing, or exhibiting any false statement or misrepresentation concerning the contents, purport or effect of any petition for the purpose of influencing any person to sign that petition.”

While it is too late to withdraw a name from a petition once it is in the validation process, citizens need a better way to file complaints when they have been mislead.

July/August 2015

It’s Our Right and Our Duty to Petition

Supervisor Scott Wiener at Folsom Street Fair
Supervisor Scott Wiener at Folsom Street Fair

As Californians we all have the power to make law. The initiative process gives us that power. It was adopted at the turn of the last century and it served to break the railroads’ monopoly at a time when elected politicians were firmly in the railroads’ pockets. Recent “citizen initiatives” — petitions by regular folks who have hit the streets to get signatures for various causes including saving our cable cars, raising the minimum wage, protecting neighborhood firehouses, limiting campaign contributions, bringing Sunshine to the backrooms of City Hall and stopping the growing height limits on the waterfront.

Now Supervisor Scott Wiener, another politician firmly placed among the powers that swing the purse, has taken it upon himself to “improve” the citizen initiative process. We’re not sure if he’s sore that his pet projects, like 8 Washington went down to ignominious defeat or that height limits on the waterfront were adopted — both via citizen initiative. Whatever it is, Supervisor Wiener wants to water down the process and make the signature gathering so difficult that only his wealthy special interests can participate, and ordinary citizens will have to go before the Board of Supervisors, hat in hand, to beg for the right to exercise their civic duty.

With local politicians dancing to the tunes that high priced lobbyists and contributors play it has never been more valuable to have the citizen initiative process available to solve the problems that elected officials refuse to confront.”

The City is changing fast, and monied interests are at the front of the line. The sway that highly capitalized campaigns have to persuade voters was very apparent in the last several elections. With local politicians dancing to the tunes that high priced lobbyists and contributors play it has never been more valuable to have the citizen initiative process available to solve the problems that elected officials refuse to confront.

As Quentin Kopp put it in last month’s Westside Observer column: “Wiener will undoubtedly persuade power-loving colleagues to present his anti-democratic measure to November 2015 voters; I invite all readers to join efforts to stop the silencing of voters by voting “No” on Wiener’s sly scheme this November.” This is important.

April 2015

City College—What’s all the Fighting About?

San Francisco is in danger of losing an irreplaceable asset, our 80 year-old college. Yet the problem is not the quality of its education; educational standards exceed the Accrediting Commission’s (ACCJC) requirements. Nor is the College in financial trouble, the duly elected Trustees—prior to their undemocratic replacement with a “Special Trustee”— left the college in the green, with a balanced budget.

Especially hurt by this rule are seniors who enjoy taking an exercise class or any of the wonderful art classes, or immigrants who need to repeat basic skills or master English as second language (ESL).”

 

So if it’s not the education or the finances, what is the problem?

The ACCJC’s beef with our community college is about data­—they want a top-down administration that concentrates on graduation numbers. This is needed, they contend, to deal with fiscal problems generated by students who do not graduate or transfer. They contend the state can no longer subsidize students who want or need to repeat a class. But their solution, “no repeatability,” is causing irreparable fiscal harm.

Since California community colleges began enforcing the “repeatability” regulations last fall, enrollment has fallen 17% at SF City College. While much of it is caused by the ACCJC, much can be ascribed to the rule. Teachers are scrambling to keep enough students to qualify classes, and many classes have closed, excellent teachers have given up, moving on to other colleges or professions. Especially hurt by this rule are seniors who enjoy taking an exercise class or any of the wonderful art classes, or immigrants who need to repeat basic skills or master English as second language (ESL). Where else can newcomers become acculturated? It is not easy for everyone.

Our formerly balanced budget cannot survive this newly imposed agenda.

Last month we asked our readers (Don’t Kick Grandma Out of Pottery Class) to sign the petition to reverse the repeatability rule and we appreciate the response. If you haven’t signed the petition, please do it now:

October 2014

Don't Kick Grandma Out of Pottery Class!

One of the biggest problems currently facing City College is declining student enrollment and its domino effect on funding. A big share of that problem comes, not from the City, but from Sacramento, led by one Barbara Bento, whose war on San Francisco’s City College is wreaking havoc that may be irreparable.

Using the rationale that “Budget cuts have forced us to ration education” the Board of Governors, who worry that “we are currently turning away hundreds of thousands of students from our campuses,” have issued a statewide blanket regulation, turning away thousands of students, causing classes to close, all while we are losing great teachers and endangering the financial health of the greatest community college in the state. “No repeatability of classes,” is the pinion regulation of the “Student Success Plan”.

The rule against repeatability is devastating to seniors for whom ongoing class participation can mean the difference between years of isolation or association with like-minded friends.

 

The repeatability rule means professionals who took a class in Dreamweaver, version 3, now find they cannot return and take Dreamweaver in version 8; similarly InDesign, Illustrator, Photoshop, Excel, Word and many continually changing tech programs are no longer repeatable. What an incredibly ill conceived ruling, considering San Francisco has become home to several of the world’s most innovative technology producers. It is critical to keep current with technical advances, yet the college can no longer offer this valuable service to interested learners.

Many seniors have formed friendships and communities with fellow students. The rule against repeatability is devastating to seniors for whom ongoing class participation can mean the difference between years of isolation or association with like-minded friends. Gerontologists tell us social engagement is a key to healthy aging. Throwing Grandma out of the pottery class she loves is not the solution to the high cost of education.

The Governors want to privatize these ‘unnecessary’ classes — “join a gym,” or “take a private pottery class” is their solution. Now exercise and visual arts classes can only be taken once—aerobics, dance, music, painting, drawing; all the arts that need continual practice. Why not offer repeatability, so City College is fulfilling its mission of access to everyone? Students and faculty traveled to Sacramento and testified against the change.

Now, students who wish to take one class, repeat classes, pursue a certification, or transfer to four-year colleges and students who are not aiming for a degree — like our seniors — have been pushed out of classes in music, dance, exercise, and art classes. They may only be taken once. Who thinks that’s a good idea?

Reversing the repeatability ruling could return a lot of students, perhaps enough to fill the 23% enrollment decline. It is very shortsighted of the Governors to take this hard line against life-long learning, long a mission of City College.

Take a step — sign up for a class — join Trustee Anita Grier’s petition to restore repeatability here.

September 2014

Affirmative Action in Admissions: One Perspective

Recent articles and letters-to-the-editor in Bay Area newspapers concerning race as a factor in admissions to the University of California have lacked perceptive and depth. The major inference has been that most Asians, particularly Chinese, are against affirmative action.

Just getting a high GPA and scoring highly on standardized tests alone are no longer sufficient. Every student admitted must demonstrate a real potential …

It should be clarified from the start that racial consideration is only one kind of affirmative action. Asians have long borne the brunt of all other affirmative action tactics. They have complied with busing and diversity measures that have placed them away from their nearby schools into underperforming schools. They have endured much non-Asian on Asian violence during, traveling to and returning from those underperforming schools. They have complied with school assignment practices which required them to have higher grades and test scores to get into the schools of their choices, when that was a legal school district tactic. And now, they are meeting additional affirmative action admissions criteria developed by the University of California.

Proposition 209 forbids race as a factor in college admissions, among other places. In compliance, the University of California has instituted a number of affirmative action admissions initiatives that have given all races and ethnicities more equal footing in competing for acceptance. These initiatives have been staffed by well-trained diverse staff members at all levels of leadership who are sensitive to, and aware of, all the unique issues that students face at the schools they come from, public or private, performing or underperforming.

“Ideal” students are no longer those only with high grade point averages and test scores. Consideration is now given to how well students perform and rank within their individual schools relative to resources available there and in their communities. Consideration is given to those who take advantage of challenging courses and activities, both within their schools and outside of their schools. Consideration is given to those who have made great strides in overcoming adversities in their homes, schools, and communities. Consideration is given to those who demonstrate sustained participation and meaningful leadership. In a word, consideration is given to all those factors that impact upon students’ backgrounds, regardless of their ethnicities and schools, factors that they need to have resolved if they are to enter prepared at a university system that emphasizes research, the creating of new ideas, and social responsibility. Just getting a high GPA and scoring highly on standardized tests alone are no longer sufficient. Every student admitted must demonstrate a real potential to fulfill the high purposes of the University of California. By using the holistic considerations mentioned here, there is a leveling of the playing field without resorting to one’s skin color, which of itself reflects nothing. All of these considerations apply, regardless of the type of school one attends.

If race were to be authorized as a consideration for UC admissions, Asians and others, for once, cannot adjust, as they have done at all other times before. They cannot change their skin colors. Indeed, it is not far-fetched to say, in the case of SCA5 (Senate Constitutional Amendment 5), that using racial or ethnic preference for any one group is, at the same time, using it as anti-affirmative action against other groups.

We do not hear that the emergency unit of a public hospital has to stop serving emergency patients because it has reached, say, 10% of a particular racial group, and can therefore accept no more of that group until a parity of 90% of other racial groups are admitted. The qualification for acceptance is specialized medical need, not race or ethnicity.

We do not hear that a public library has to stop loaning out more than 10% of its books to that same particular racial group until 90% of other racial groups take out books. The qualification for loaning out books is the desire to read, not race or ethnicity.

We do not hear that Asians can qualify for welfare benefits if they have no income, but Hispanics cannot unless they have earned income of at least $10,000 first. The qualification for welfare type benefits is economic need, not race or ethnicity.

Similarly, the qualifications for entry into the University of California are well-defined levels of competencies and preparedness that all racial and ethnic groups, regardless of their backgrounds, can compete on a level playing field. All racial and ethnic groups have resources and opportunities, academic and social, within their own schools, homes, and communities of which they can take advantage to improve their standings in the eyes of the University of California.

The University of California continues to find and to address the debilitating conditions that different people face. Asians have and will continue to comply with UC’s affirmative action practices. To infer otherwise is a disservice to all.

John Lum is a concerned citizen.

May 2014

Prop 16-PG&E’s Public Option Perplexelectric plug pix

You’ve got to hand it to the ad boys over on Beale Street. The day they realized they could not compete in the marketplace against cheaper community rates must have been a sobering moment. Seems PG&E’s monopoly is threatened by Community Choice Aggregation (CCA) in Marin and San Francisco counties. Since Sacramento’s SMUD continues to provide cheaper power to the capitol building itself and provides money for community welfare as well, the CCA competition has befuddled the PG&E lobbyists in Sacramento. They were unable to wine and dine the elected representatives to get their anti-competition legislation passed the old-fashioned way.

While PG&E can’t compete in the marketplace, they’ve proved they can outspend opponents at the ballot box. So, what they couldn’t accomplish in the domed halls of Sacramento, the bright guys in the caverns of Beale Street’s Madvertising Department seek to accomplish via a new multimillion-dollar campaign cloaked in the trappings of voter’s rights, to assure that their monopoly continues in perpetuity, the real purpose of Proposition 16.

In a way the initiative has underscored the “public option” fight in Washington, where well-paid lobbyists squelched public demand for an alternative solution to health care outside the insurance lobby. In California, led by the venerable ratepayers rights organization TURN (Toward Utility Rate Normalization) the right of ratepayers to buy cheaper (and usually greener) power known as Community Choice Aggregation survived the legislative process. Additionally, this PG&E funded initiative casts an unflattering light on the recent Supreme Court decision to allow corporations to maintain their stranglehold on the public by spending unlimited amounts of money in elections. Recent reports estimate that PG&E has spent $35 million for TV, mail and every other contrivance known to campaign consultants.

As a “Voters Rights” campaign, Prop 16 contradicts itself. The basic premise of “voters rights” is one man, one vote. By requiring a two-thirds majority Prop 16 seeks to impose the view of the minority of voters on the majority, rather than the majority rule usually associated with “voters rights.” Hundreds of junk-mailers touting “voters rights” will soon be in our mailboxes aiming to gloss over that disparity, but it remains a fatal flaw in the legislation. There are better ways to protect the minority than making permanent changes to the state’s constitution.

Community Choice Aggregation may or may not be the best alternative energy solution and we do not intend to tackle that complex question in this commentary. We think that is best left up to local governments assessing their available resources. Questions like this should be presented by elected officials at publicly noticed hearings, complete with public hearings that allow free flow of information from both sides and followed by a vote of representatives who will have to answer for their choice at the polls.

What is most troubling about this obviously misleading campaign is the misuse of the citizen initiative process. Originally conceived to break the railroad monopoly by the great Californian, Hiram Johnson, at a time when the Assembly and Senate of California were in the grip of the moneyed interests, the right of citizens outside the legislature to originate legislation is sacrosanct—too important to be interfered with. Proposition 16 seeks to establish a monopoly, not by citizens without access to their elected officials, but by a corporation seeking to prevent competition. Here a multi-billion dollar corporation clearly subverts the process, pouring $35 million into gathering signatures to place this initiative on the ballot, and to assure its passage.

PG&E should spend the millions they extract from the ratepayers to improve service and compete in the marketplace with alternative sources of energy, not at the ballot box. We join the Chronicle, Sacramento Bee, LA Times and most other newspapers in the state in questioning this unprecedented assault on voters. No on Proposition 16.

May 2010