Friday, September 14, 2012

Why have the supervisors been muzzled?

To deal with the Mirkarimi fiasco, the Board of Supervisors has been provided a lawyer from outside city government, Scott Emblidge from the firm of Moscone Emblidge Sater Otis, to avoid a conflict of interest by the City Attorney's office, which of course is representing the mayor.

Apparently Emblidge has told the supervisors that they can't say anything about the Mirkarimi case before they vote on removing him from office. (Supervisor Olague: "We can’t talk about it, because we’ve been prohibited, because we may need to weigh in on it at the Board level. So we’re not allowed to comment on that at all...") 

The supervisors have complied, though it's not clear that they should. Is there anything in the City Charter---or any other law---that requires them to be mute on this important issue? Or, like most lawyers, is Emblidge simply advising them to shut up so that they don't say something that would complicate his job?

Could a supervisor, like a misbehaving juror, be disqualified from voting on the issue if he/she spoke publicly on Mirkarimi's behalf? Lawyers often advise clients in non-political cases to not say anything that might hurt them in court. 

But supervisors are political representatives on the most important policy-making body in the city, not ordinary clients, and the mayor's attempt to destroy Mirkarimi is more of a political process than a legal process, as Larry Bush has pointed out nicely once again.

I sent this message to Emblidge asking about his advice to the board:

Mr. Emblidge:

I'm told that you have been retained to provide our Board of Supervisors with legal advice on the Mirkarimi case. Supervisors are saying that they have been advised by counsel to not comment on the Mirkarimi case before they vote on removing him from office. Is there something in the City Charter---or any other law---that requires that the supervisors refrain from discussing this important issue in public before they vote?

The response: "Thanks for contacting us. We will respond to your request as soon as possible."

Later: There was never any response. Of course it was all bullshit, and Supervisor Olague and other supervisors used it as an excuse to not comment on a thorny issue.

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High-speed rail and federal law

by Kathy Hamilton

There has been much talk about California’s High-Speed Rail (HSR) program and the need for the project to cut the mustard in accordance with state laws. But little has been written about the federal requirements under the National Environment Policy Act. (NEPA) and other federal requirements. Though the first $8 billion was appropriated by the legislature, it doesn’t mean it can be legally spent yet.
One of the issues under federal law is the issue of environmental justice. The United States Environmental Protection Agency defines Environmental justice (EJ) as "the fair treatment and meaningful involvement of all people regardless of race, color, sex, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies.
During the Hanford hearing for the project level EIR for the Fresno to Bakersfield segment on 8/29/2012, Frank Oliveira from Citizens for High-Speed Rail Accountability (CC-HSRA) delivered key information regarding the inadequacy of environmental justice to the Federal Railroad Administration (FRA) and HSR representatives. He let them know the Authority had not allowed the public to participate at different points in the project...
...On August 2, 2012 the California High-Speed Rail Authority (Authority) adopted an Environmental Justice (EJ) Guidance policy, and although the Authority has been planning the project for over ten years, there is convincing evidence that the Authority did not consider or comply with provisions of EJ that are mandated by the National Environmental Policy Act (NEPA) laws and regulations, said Jeff Taylor, Chairman of the Save Bakersfield Committee...
The Authority's Environmental Justice Guide says it "promotes the incorporation of EJ considerations into its programs, policies, and activities to mitigate disproportionate adverse impacts, particularly on minority and low-income populations.” Taylor disputes that claim and says “Unfortunately, the Authority has unfairly excluded untold thousands of people of all races and cultures from having any meaningful involvement in the early stages of the project's planning, design and decision making processes”...
Reporting yet another federal law violation there was a letter---46 pages in fact---sent to the FRA August 24th by the Pacific Legal Foundation. PLF is representing the American Civil Rights Foundation. They dispute the Authority’s 10% goal for disadvantaged business enterprises, which are essentially businesses owned by minorities and women who have a net worth less than around 1.3 million dollars (excluding their residence). “We argue that the CHSRA did not have a legal basis for adopting that goal,” said attorney Ralph W. Kasarda.
Another key question haunts the project, and that is there have been no reports that agreements have been reached with Union Pacific and BNSF that pledge cooperation with the high-speed rail project. This is a statutory condition for the FRA grants to CHSRA. This means it cannot be waived by the FRA. It applies to FRA grants made to CHSRA under both ARRA and the FY 2010 Act. The governing federal statute provides: “Grant conditions– The Secretary shall require as a condition of making any grant under this chapter for a project that uses rights-of-way owned by a railroad that- (1) a written agreement exists between the applicant and the railroad regarding such use and ownership… (49 U.S.C. 244059c).”
During the May 15th hearing before the Senate Joint Committee, Dan Richard said they were working with both UPRR and BNSF to obtain agreements by the end of June regarding HSR use of their respective right-of-ways for the Central Valley project. The Authority said they were close to coming to terms with the railroads.
So where is the Authority on the signed railroad agreements? Karen Massie, Information Officer for the California High-speed Rail, declined to comment and instead suggested I do a formal pubic records request. This was done yesterday...
The complete story here.