Wireless Tempest
by Dale Tyler

On Sept. 4, 2007, the City Council held a discussion regarding Item 23, which was agendized as follows:
“City Attorney's Report
23. Discussion Regarding Proposed Ordinance; Prohibiting Certain Improvements in City Parks; Adoption or Deferral of the Same Recommended Action: Discuss the draft ordinance and direct staff, as necessary, regarding revising or adopting the ordinance.”

Although it does not clearly say so, this is in regards to the proposed proliferation of cellular antennas in city parks and in open space owned by the city. There is significant community opposition to the placement of these antennas and equipment cabinets in parks and public spaces. Many people are concerned about RF emissions, but others are opposed based on aesthetics. They ask, “Aren't parks for recreation, not to be rented out to the highest bidder?” Another wrinkle in the debate is a contract that was awarded to ATS to study how the city should regulate cell tower placement. ATS was also to figure out how to “market the city parks” to cell phone providers. The problem is that ATS is in the business of placing cell phone towers in various locations and thus has no interest in finding a solution that involves fewer cell phone towers.

The so-called Wireless Master Plan, being prepared by ATS and the city staff, is being positioned by Councilmen Lance MacLean and Frank Ury to try and overcome the objections of residents by claiming that a pseudo-scientific study should control where cell towers should go, thus allowing the City Council to shirk its responsibility by hiding behind a Wireless Master Plan when it comes to approving cell sites on every high spot in the city.

The question that really needs to be asked is “Is there a right of everyone to have a good cell signal at every location in the entire city?” I'd say there is no such right or even a real need for complete coverage. We live in a city with lots of hills and valleys. These, by their very nature, create cellular “dead zones.” Maybe some in the city feel helpless when they cannot make cell phone calls from everywhere, but most of us do not feel that way. It can be very frustrating when someone does not have cell coverage at home or when their car breaks down. But to try and resolve this problem by placing multiple cell antennas at every possible location and thus turning our beautiful city into a forest of fake palms, hollow steeples and just plain poles is a very poor solution.

How this item came to be on the agenda is also an interesting story. According to comments made by councilmembers at the meeting, this item was prepared by Bill Curley, our City Attorney, at the sole direction of Frank Ury. According to Mission Viejo City Council written policy, a single councilmember may not direct city staff nor the City Manager nor the City Attorney to take any action, except at a City Council meeting with the consent of the rest of the City Council.Yet, Ury decided to have Curley spend the time to write an ordinance, at considerable expense, without having the publicly stated permission of the rest of the council.

This is not the first time Ury has defied the council rules. In past years, he directed the City Manager to prepare a report without getting the required approval from the council at a public meeting. Ury seems to feel that rules do not apply to him. Further, City Attorney Curley should have known that Ury was not authorized to make the request, since Curley is at every City Council meeting and knew or should have known that he needed full council direction before proceeding to spend citizen tax dollars. Ury attempted to justify his actions by claiming “No good deed goes unpunished.” He also claimed that Mayor Gail Reavis should have pulled the item if she did not think it should be on the agenda. But why was it there in the first place? Either Ury should give the city a personal check to cover the cost of preparing the ordinance or Curley's firm should refund the costs to the city.

There is also the possible violation of the California Open Meetings Law, also know as the Brown Act. When Ury sent an email directing Curley and staff to prepare the ordinance, he sent a copy of that request to all other City Council members. Since this item had not previously been approved by the City Council and it was a request to prepare an ordinance, the sending of the email could be considered “advocacy” and, thus, an attempt to “gather consensus,” which is a violation of state law. Curley tried to tap-dance around this by claiming this action was initiated by the City Manager back on July 19. However, there was no discussion at public council meetings of creating an ordinance, and Ury's email seems to have been the trigger for starting the preparation in earnest. We may never know the truth of this matter, since the city has a policy that destroys all internal email after only 30 days, making it virtually impossible for citizens or prosecutors to find out what really happened more than a month ago. So much for open government.

It was announced at the end of the Sept. 4 meeting that the ATS-prepared Wireless Master Plan will be presented at the Sept. 17 City Council Meeting. It will be interesting to see what ATS suggests and what the council does with the report.

Summary of Sept. 4 Council Meeting
Editorial staff

The Sept. 4 council meeting was sparsely attended, and it appeared dull – for awhile. The meeting later took a contentious turn, underscoring why voters tried to change the majority in the November 2006 city election.

During public comments, a frequent speaker talked about the electronic sign the council approved July 2 despite overwhelming objections from residents. The speaker had been admonished at the July 2 meeting, with Councilwoman Kelley claiming the speaker was misinforming the public. Kelley claimed the electronic sign would be unlike the Saddleback College signs, which residents describe as garish and distracting. The speaker said on Sept. 4 that the city’s sign, a Galaxy AF3165, is the same model as the Saddleback College signs. No council member or staff member responded.

A second public speaker commented about an item from the Aug. 20 meeting, when the council denied the establishment of no stopping or parking on streets impacted by traffic surrounding Capo Valley High School. Kelley and MacLean voted against the measure to give homeowners relief from the problems. The speaker indicated that Ms. Kelley had cut through his neighborhood to use the same drop-off point when her children were in school, possibly influencing her decision not to support the no-stopping-or-parking measures.

Two representatives of the YMCA thanked the council and city staff members for the YMCA pool renovations. Absent from the comments was any mention it was taxpayer money – not from the personal funds of council members. Perhaps YMCA administrators were attempting to balance their comments over the years, implying council members would be removed from office if they didn’t support the renovations.

No items were pulled from the consent calendar. This has been standard procedure since the council majority (of Kelley, MacLean and Ury) earlier this year reversed the policy of permitting members of the public to pull agenda items for discussion. As an example of items passed without discussion, $3,414,661 was approved as the check register total. The City’s Lawful Hiring Compliance Ordinance was adopted without discussion despite an apparent impasse at the Aug. 20 meeting over computer vendors’ refusal to sign any such agreement.

The item causing contention was a proposed ordinance regarding the use of city parks, Agenda Item No. 23. This item is discussed separately in another blog article, along with information that led to its placement on the agenda. Item 23 relates to the city’s Wireless Master Plan, which has involved heated debate during planning commission meetings.

As described in this week’s other article, the city attorney (Bill Curley) takes direction from the council majority and is not permitted to act on behalf of any one council member. As another matter, the council has not yet seen the Wireless Master Plan, as it will have its first council review on Sept. 17. Proposing an ordinance trumping the Wireless Master Plan prior to its approval is contradictory.

Here’s how it went during the Sept. 4 meeting. City Attorney Curley read and explained the proposed ordinance. Council members MacLean, Kelley and Ledesma took turns speaking without mentioning the city attorney’s improper action of proposing an unauthorized ordinance or asking how the item got on the agenda. To their credit, however, both Ledesma and MacLean said an ordinance wasn’t needed, and Ledesma said it had no beneficial effect to the city or its residents. Kelley did not discuss the item except ask what other cities are doing. Ury spoke, claiming the intent of the city’s proposed Wireless Master Plan is to “minimize the number of cell towers.” To the contrary, the language in the plan states the consultant is to market city property to wireless service providers.

When Councilwoman Gail Reavis spoke, she said, “We as a council never directed the city attorney to do this.” After she listed the number of problems such an improperly spawned ordinance created, Ury – somewhat sheepishly – began explaining that he was the one who directed the city attorney to draft the proposed ordinance, running up the city attorney’s bill without council consent. Reavis further pointed to a $14,000 expense on the check register she’d seen as a “public outreach effort,” apparently with regard to use of city property for wireless antennas. Such an expense is worthy of investigation, particularly if the purpose was to assist the master plan consultant, ATS, in pursuit of marketing city parks as cell tower sites.

Ury said he met with two residents and his planning commission appointee at Bagles and Brew and came up with the ordinance because the two residents expressed concerns regarding cell towers. By contrast, hundreds of residents have shown up at city hall asking for real protection from the Wireless Master Plan contract Ury pushed to approve. The Sept. 4 proposed ordinance appeared to be a political maneuver, placing Ury on both sides of the fence.

The Wireless Master Plan will be discussed at the Sept. 17 council meeting, and all residents are urged to attend.

CUSD Update
Editorial staff

The Sept. 4 OC Register included an article about Capistrano school district’s newest campus, San Juan Hills High School, San Juan Capistrano, which opened for the first time on Sept. 4. The highly positive article describing this state-of-the-art school read more like a district-written promo piece than a news story.

A Capo parent said, “Everyone should take a tour of this school. It looks like a country club. The school includes such details as decorative etching on the driveway. Mature trees were brought in instead of seedlings. The surrounding hills are all landscaped.”

The new $140-million school, where no expense was spared, was being built while Newhart Middle School continued to decline. Newhart – Mission Viejo’s only trailer park – can boast a new trailer this year, referred to as a modular building.

This week, a CUSD resident sent the blog a summary of the 2006-2007 grand jury testimonies, posted below for readers’ convenience.

Testimony of former superintendent James Fleming:

Fleming took the Fifth Amendment on all questions including his education. He did, however, provide the names of his wife and children, but that’s it. It has recently come to light that he does not have an Ed.D. – a doctorate in education – but instead may have a doctorate in public administration (DPA).

Testimony of CUSD Trustee Marlene Draper

In Draper’s 2006-2007 testimony, she answered questions about appearing before the 1991 Orange County Grand Jury. She stated she does not really recall what the focus of the investigation was, but she believes it had to do with the district being involved in supporting a Mello-Roos election and spending district funds to advocate for the passage of the bond. She spent most of the time using phrases like I suppose, I don’t recall, I don’t know, and I don’t remember. She definitely recalls telling Fleming not to get involved with the recall, but she didn’t have a recollection of the timing. She also states that the board did discuss a $3.8-million settlement above the guaranteed maximum price on the no-bid contract for the district office as being confidential, not secret. Regardless, it was a violation of the Brown Act. It is clear from her testimony that she relied on attorneys and staff to make the district’s decisions and rarely questioned the decisions they were making. Regarding the lists of enemies, she states that she believes Sherine Smith provided her with a copy of the first email that was sent about the recall. She states that she did see the lists of proponents that the papers refer to as an “enemies list” in July 2006 or before. This is before retired judge Stuart Waldrip was hired for the district’s self-investigation to determine if a list existed and before Marlene Draper emphatically stated at a board meeting, “There is no list.” Fleming told her the list was developed by using a list of names from emails sent early in spring 2005 about the recall. Draper stated David Doomey was the district expert regarding district financing of the building program. District employees Doomey, Crawford and Lovely received three salary increases in just over one year, and Draper could not explain why some of the increases were given.

Former CUSD Trustee John Casabianca

Casabianca states he did not have the time to read board information and instead relied on staff briefings. In fact, if payments to his employer, Twining Laboratories, were included on the check warrants or purchase orders, he relied on Dan Crawford to tell him to abstain from voting. He spent a lot of time explaining that everything was discussed in closed session but they only voted in open session. He, too, stated that he relied on the attorneys and staff for information, trusted them to know what they were doing and did not question them. Casabianca stated David Doomey was the district expert regarding financing of the building program.

CUSD CFO Sherry Hahn

Hahn stated that spending Mello-Roos funds is David Doomey’s area, as it is his specialty. She believed that the discussion regarding the cost overruns on the district office perhaps should have been handled in open session. On questions that the DA expected the CFO to have the answers to, about the financing and contracts regarding the district office, Hahn repeatedly deferred to Doomey as the expert. She said Doomey was in charge of all facility budgets. She seemed to have no understanding of how facility funds are spent. The DA asked Hahn about a spreadsheet titled “Cost Associated with Recall,” KM typed it. David Smollar objected to amount associated with his name $9,269, while $2,523 was associated with Hahn; other employees were listed (page 288).

Former Deputy Superintendent David Doomey

Doomey ended his career with CUSD as a deputy superintendent overseeing the CUSD facility planning area and, per other testimony, he was in charge of all district facility funds. He started in CUSD as a physical education teacher in 1987, and prior to that he was a store manager of a Gemco Department Store (page 800). When he retired from CUSD, he was earning $156,000 plus an annual $1,900 masters stipend and $700 monthly expenses (page 814). When asked, Doomey could not explain the funding vehicle for the district office (a lease leaseback agreement) other than it was recommended by legal counsel. He stated that other than it was advised by legal counsel he had no idea why the lease leaseback deal on the district office was a good idea (page 806). A no-bid contract was awarded to Valley Commercial Contractors (a subsidiary of Voit Development, who CUSD purchased the land from) for a guaranteed maximum contract price of $22,620,000. The board never asked any question regarding the contract price or the lease leaseback funding. He relied on the lawyers that the funding vehicle and price on the district office were a good deal for CUSD. When asked if the plans for the district office were completed before the board voted to allocate more than $22 million, Doomey responded, “I don’t believe so, but I can’t remember.” He also states that they began construction on the building prior to the city of SJC approving the plans (pages 840-859). Throughout his testimony he stated he relied on attorneys.

Examples of Doomey’s testimony:

Question: I mean, you are an expert in your field, aren’t you?
Answer:  Some say I am, yes.

Question: Then why did you simply rely on a lawyer telling you that this was a good idea; why didn’t you demand some reasons why?
Answer: I can’t answer that question.  

Former CUSD administrator Susan McGill

McGill states she had no knowledge of a list. She also states she went to the Register of Voters to see how the process of recall validation worked even though the recall had failed. On page 218, the DA begins questions about a memo titled “Costs Associated with recall” and specifically lists Susan McGill cost as $5,621 (page 150) and $50,000 as other costs (page159). Sherine Smith is listed with an hourly rate but no total mentioned.

Former administrative assistant or secretary to Fleming, Kate McIntyre

When asked if she filed something for the state, she said, “I don’t file, I give it to one of the girls, referring to one of the other Fleming secretaries.” McIntyre obviously did not consider herself as a secretary, and she made approximately $90,000 per year. She was directed by Fleming to make a list of the people on the email sent regarding the recall and to go to TIS (computer information department) to get data on each of the people on the email (page 36). She and Fleming added comments about the people on the list, such as NIMBY. She states the list may have been taken to cabinet meetings and where comments were made about some of the names on the lists. She reminded Fleming of the list when it was faxed to him by the OC Register, yet Fleming denied any knowledge about a list and stated to the OCR reporter he had never seen the list the reporter had faxed to him.

CUSD employee Barbara Thacker

Thacker states Susan McgGill was in contact with the Register of Voters Neal Kelley. McGill received updates as to the progress of the 2005 recall effort. Thacker also states McGill directed her to type a list of names that McGill collected from recall petitions during her trip to the ROV. The DA refers to a copy of a memo sent from McGill to Fleming although McGill denied collecting names or knowing about a list in her testimony. (This may be why she was charged with perjury).

Interim Superintendent Charles McCully

McCully had several meetings with James Fleming while employed as the interim superintendent of CUSD. He said he was surprised at the number of support staff in the superintendent’s suite and had no idea what Kate McIntyre or Carolyn Williams did. McCully admitted under oath that he relied 100 percent on whatever Doomey told him -- He did not review a single document or seek any independent confirmation. He thought Dave Doomey was an expert in the area of school district financing.

The following are excerpts from former Interim Superintendent McCully’s grand jury testimony:

Answer: I had conversations with Dave [Doomey] regarding the administration building because I had had several phone calls, inquiries, and perhaps other kinds of communications, concerns being expressed as to where the resources came from to construct the new administration building. So, one of the first things I wanted to do was to simply clear up the funding, not just of the administration building, but all the projects that had been completed over the last 10 to 15 years…and we had a public meeting on that…

Question: Were there documents that clearly showed how the [new $52,000,000 administration] building would be funded?
Answer: I didn't review any of the documents.

Question: Did you ask for any of them?
Answer: No.

Question: How did you find out how the building was funded?
Answer: Staff reviewed all the documents ... .

Question: Did Dave Doomey extract that information?
Answer: He was one ... . (page 1030)

Question: Did you speak with Dave Doomey about the procedure in which the administration building was constructed, the leaseback deal with Valley Commercial?
Answer: I did not get into that ... . I didn't get into any of the leaseback deals with anybody ... . (page 1033)

Question: You don't know any of the advantages or disadvantages to [the leaseback deal with Valley Commercial on the administration building]?
Answer: No. I don’t. (page 1034)

Question: When Dave Doomey explained to you about the sources of the funding, did he explain why it was he had misinformed either you and or the public about the single source of funding previously?
Answer: No.

Question: Did you ask him?
Answer: Not to the best of my memory – I didn’t ask him. (page 1035)

Question: Was it your understanding that you had a guaranteed maximum price for the construction of the [administration] building?
Answer: Yes. (page 1037)

Question: Can you shed some light on the circumstances of how it was that the guaranteed maximum price was exceeded by that much money?
Answer: No, I can’t. I didn’t get into the details of that. (page 1039)

Question: Who would make that recommendation [regarding the funding of the administration building] to the board?
Answer: Probably the superintendent of Dave Doomey through the superintendent. (page 1042)

Question: [as to the “misinformation” the district had put out about the admin building] so you never found out why the district --
Answer: I was told it was miscommunicated, and I didn’t pursue it beyond that. I wasn’t interested in what went on in the past … .

Question: Would it surprise you to know that Dave Doomey sat here and told us he was not an expert at all in financing school buildings?
Answer: Yes.

Question: Would it surprise you to learn that Dave Doomey said the only way he knows about lease leasebacks is because an attorney told him about it?
Answer: I have no comment on that … . (page 1043)

Question: So, retirement is looking pretty good again?
Answer: Retirement is looking much better… . (page 1046)

Question: In this evaluation, did you ever come across (page 1053) any administrative positions where you said, “I don't know what they do”?
Answer: Initially, when I first arrived in the district, I had to sort that all out. So the answer to your question is, initially, yes. But after a brief period of time, I felt that, one, I got a much better grasp on that and shifted responsibilities, added some, took some away.

Question: What positions were those, Superintendent McCully?
Answer: Oh, gee whiz. Obviously, Ms. McIntyre was one. Carolyn Williams was another one.

Notes

Issues raised in the testimony:

It appears no one in the district office is evaluated regarding their job performance.

Some raises were given out by Fleming for no particular reason; others were tied to teacher and classified negotiations. None were based on performance that were addressed in the testimony.

The board included in Fleming’s contract that he would receive the same raise he negotiated for the teachers.

Many of the employees discussed in the testimony had no experience in their jobs prior to receiving them. They moved from teacher to principal to district specialist.

Hahn, McGill, Doomey, Smollar, Bristow, Williams and many other district employees are in positions created by Fleming for them.

Fleming had four secretaries.

The approval of the $22.6-million, no-bid, guaranteed-maximum contract for the district administration building was handled on the consent calendar. There was no public discussion.

The board approved the contract for the district office prior to having any plans.
The district began constructing the district office prior to plans being approved by the city of SJC.

The district office building was funded with SJC redevelopment funds and Mello-Roos funds. Then, Doomey, Fleming and the board proceeded to provide misinformation about the use of Mello-Roos (in fact they lie in response to direct questions about Mello-Roos until 2006 when they admitted they used it for the district office).

All of the testimony can be found at: 
http://www.thecapistranodispatch.com/archives/CUSD_Grand_Jury_Transcripts.pdf 

Check out the 1991 Grand Jury report on CUSD as well: 
http://www.cusdrecall.com/page68/page47/page188/page188.html 

The Buzz Column, Sept. 7

Capistrano Unified School District has a new interim superintendent, Woodrow Carter. The process of his selection, however, continues to be a mystery. The minutes of the meeting had not been published within a reasonable time following the announcement. Just prior to Carter’s selection, some parents believed Charles McCully would again be named as interim superintendent. Fortunately, this wasn’t the case. One parent suggested Carter should hold a forum for everyone to ask questions without the structure of a board meeting or prepared statements.

***

Reader reaction to Councilman Lance MacLean’s “Guest View” column in Saddleback Valley News on Aug. 31: “MacLean is catering to developers and acting like he’s representing the residents – no way on the latter. He continues to press for more housing in Mission Viejo when there’s no room. What’s next, treehouses? I don’t see how he can claim he’s concerned about traffic coming through Mission Viejo from the east when he’s so bent on adding more homes right here in our city.”

***

Mission Viejo residents who make public comments at council or other public meetings should be aware it’s their right to speak. Quite a few speakers thank the council profusely for the opportunity as if it were a privilege. Note that the mayor and commission chairs generally thank those who take time to come to the meetings and speak from the public microphone.

***

Anyone awaiting more indictments of CUSD officials might have to wait awhile longer. One observer said, “The D.A. has a conviction rate of approximately 95 percent. I think the D.A. has already made the charges that are easy to prove, and we should expect convictions. Everyone is waiting to see if former superintendent James Fleming would like to make a deal and implicate others. With so many fishy real estate transactions and contracts, I hope we don’t have to wait for another ‘disgruntled former employee’ to find out what happened.”

***

The city manager’s report during the Sept. 4 council meeting included an update on the Crown Valley Parkway widening project. Translation for expected completion date: we have no idea. Whatever happened to the $100,000 paid to Roger Faubel to educate residents stopped in traffic to expect delays? The fee was apparently not enough to keep the P.R. Website updated. Some residents thought they might have seen a fancy die-cut brochure, which probably blew most of the money. The projected completion date of June 2007 has slipped just a bit to early spring or early summer 2008. The timeline for improving the Oso / Marguerite intersection has slipped a bit also, as it won’t begin until after the Crown Valley Parkway widening project is finished.

***

While the current council agreed some time ago on the need to upgrade the city attorney, no agreement was reached on who should get the job. Consequently, Bill Curley hangs on. During the Sept. 4 council meeting, Curley revealed that he improperly drafted a proposed ordinance restricting city park use to recreation without council approval and risked exposing the council to accusations of a Brown Act violation as well. As lawyering goes, Bill has been successful at creating work for himself, but the city lacks responsible legal counsel.