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5G Wireless Deployments

September 14, 2019 by admin Leave a Comment

I’ve recently begun receiving form emails from residents demanding that the Council take steps to protect San Carlos from the alleged harmful effects of 5G cell phone transmitters. I thought it would be helpful to post a publicly-available response to those emails so that everyone would get the same information from me, and so that it would be available online.

There’s a legal doctrine known as “pre-emption” whereby higher levels of government can define the law and also forbid or limit what lower levels of government can do in that area. This derives from the fact that while San Carlos has a local government, that government is not sovereign (i.e., fully in control of its own destiny), and must abide by the rules laid out by the California and Federal governments.

In the case of cell phone technology, the Federal government has pre-empted all control over how and when transmitters can be placed, except for purely aesthetic issues. We can require that a transmitter blend into its environment, but we have no control over a cell phone carrier’s decision as to where they choose to place the transmitter.

The cell phone company has to honor private property rights, of course, so they can’t just install transmitters anywhere – they have to own, or rent access to, the property. But that’s pretty easy for them to do. For example, they already have the right to access public property to install telephone poles, so they can put transmitters on top of any telephone pole they choose.

If you wish to pursue concerns about 5G technology and transmitters I recommend you contact Congresswoman Jackie Speier’s office. She is our Federal Congressional representative. You could also contact Senator Diane Feinstein’s and Senator Kamala Harris’ offices, as they are our Federal Senators.

For what it’s worth, nothing I’ve read from credible sources leads me to believe the purported risks are real. Regardless, people are free to demand action by their government. It’s just that in this particular case the only real effective target for those demands is the Federal government.

It’s also worth noting that the form emails contain language that appears to assert individual Council members might be held liable, financially or otherwise, for any adverse effects resulting from the deployment of 5G transmitters. To the best of my knowledge, this is not so: the law provides a broad “safe harbor” for elected officials making good faith decisions on behalf of their community, and in compliance with the law.

A Huge Transparency Hole?

August 21, 2019 by admin Leave a Comment

Imagine a public agency being threatened with a lawsuit for something it’s done, or hasn’t done. Seeking to avoid going to court it enters settlement discussions with the potential litigant. The strategy it decides to follow is set in closed session discussions. That’s allowed because it protects the public interest by not letting the other side see the agency’s cards.

Those talks are only reported in the minutes as “discussions involving potential litigation”. The minutes typically include a reference to the area of law under which the threat is being made but, frankly, I don’t generally find those particularly helpful in understanding the nature of the discussions because they’re generally pretty broad-brush. And I’ve been a local elected official for almost 20 years.

Fast forward to the end of the settlement discussions. The agency determines the details of a final offer it is willing to accept, and instructs its attorneys, in closed session, to extend the offer to the potential litigant.

If the other party accepts the offer as is — meaning it makes no requests for changes — then the settlement is executed by the potential litigant and the agency, public funds get disbursed…and the matter never, ever appears in the minutes.

Sound strange? It sure does to me…but it’s allowed under California’s public agency disclosure and accountability laws. Here’s the relevant language (lightly edited for brevity, and emphasis added):

CHAPTER 9. Meetings [54950 – 54963]

54957.1.

(a) The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention on that action of every member present [nb: this is a good thing, and an example of our fundamental commitment to public agency transparency], as follows:

subsections 54957.1(a)(1) and 54957.1(a)(2) omitted for brevity

(3) Approval given to its legal counsel of a settlement of pending litigation, as defined in Section 54956.9, at any stage prior to or during a judicial or quasi-judicial proceeding shall be reported after the settlement is final, as follows:

(A) If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held [nb: this is the case where the other side makes a final offer and the agency accepts it as is].

(B) If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement.

As long-time readers of my blog hopefully know, I always remind people that it’s best to do more research before leaping to conclusions. The correct response to seeing what appears to be a “stupid law” is “what don’t I know and how do I learn more about why the law is written this way?”.

But…this sure seems like a huge gaping hole in California’s public disclosure laws.

It’s also a really interesting catch-22: the public is entitled to know about the executed settlement…but only if someone asks about it. How would someone know to ask about it unless it’s mentioned somewhere in the minutes? The only other way would appear to be some agency employee leaking the existence of the executed settlement to the public at large.

That could require quite a bit of personal bravery. I’ve learned savvy attorneys often include language threatening all sorts of dire consequences for any member of an agency who discloses the existence of such a settlement.

I suppose a journalist could file a public records act request seeking information on any and all settlements entered into by an agency during some time window. But while the media periodically asks for information about the salary and benefits of senior public officials — it’s an annual staple of local journalism — I can’t recall seeing any inquiries into undisclosed settlements.

54957.1(3)(B) really doesn’t seem like a good provision to have in our transparency laws. But I’m not a lawyer or a member of the Legislature, so I don’t pretend to know all the other factors that went into including it.

I will learn what those are, however, by talking to our state representatives about it. And I’ll let you know what I learn.

Stay tuned.

Protecting the Public’s Right to Know

August 13, 2019 by admin 2 Comments

This is an op ed I wrote which was published in the Palo Alto Daily Post.

Early this year I became San Carlos’ representative on the Silicon Valley Clean Water commission. SVCW operates the sanitary waste treatment system serving Belmont, San Carlos, Redwood City, Menlo Park, Atherton, Portola Valley, and areas of East Palo Alto, Woodside and unincorporated San Mateo and Santa Clara Counties. Its annual operating budget is about $45 million, almost all of which is funded by sewer fees paid by residents and businesses. It also has a critical $850 million upgrade and infrastructure enhancement program underway.

As a commissioner, I’ve recently been struggling with issues related to how open the agency is about certain matters, triggered by Dave Price’s editorial regarding a legal settlement the commission recently approved. Maximizing public transparency — which I strongly support — is a bedrock principle of California law, and very much in the public interest. But that same law gives public agencies room to negotiate settlements privately.

Imagine what would happen if anyone suing an agency could hear their debate about tactics and strategy, as would happen if those discussions were held in public. It would hamstring the agency’s ability to negotiate, likely leading to worse outcomes. Avoiding that is also in the public interest.

Like most things in government, a reasonable balance must be struck. But where is that balancing point?

California law appears to allow – I’m not a lawyer or a judge — public agencies to approve the expenditure of funds in closed session if they make a proposal to a counter-party who later accepts it. Details about the approval are generally a matter of public record…but those details must be requested by a member of the public. In the language of the law, they are released only “upon inquiry” – i.e., if anyone thinks to ask.

I just learned this, and it came as quite a shock. It is a degree of flexibility which I believe agencies should utilize rarely, if ever. I am much more comfortable with the model used by the San Carlos City Council, on which I serve: while some details about a transaction may be kept confidential, the expenditure itself is voted on in public.

Under this model voters are at least aware of how much public money is being spent, and for what purpose. Among other things this allows the public to comment on the transaction and stay on top of what their government is doing.

San Carlos’ approach so closely aligns with the principles of open government enshrined in California law that I assumed, incorrectly, it was required. It’s not; it’s a choice in some situations. But it’s one I believe voters should require their agencies to make, because the approach San Carlos uses better protects the public’s right to know.

The approach was not used by SVCW in the matter Dave wrote about. Had it been, understandable public concerns might’ve been mitigated, because it’s not possible to act on such an item in public without saying something about the reason for spending the money.

Acting in public would also serve the personal interests of elected officials (not that that does or should matter). If you don’t choose to keep the public aware of at least the broad outlines of public expenditures, but the public is entitled to the information upon request, you are always going to be subject to questions about why you chose to be less open on one item versus another. Being more open consistently makes you less subject to charges of trying to mislead the public or to conceal potentially controversial government conduct.

It also helps to reduce the potential for friction among elected officials working together with agency staff to serve the public interest. That’s something I’ve experienced a lot recently as I find myself trying to figure out how to convince my SVCW colleagues there’s a better way and that we should adopt it.

Ultimately, I’d rather be working to keep our sanitary sewers working properly. It may not sound like much of a job, but it’s a critical part of our infrastructure. But so is maintaining transparency and accountability in government.

Tunnel Boring Machine

July 17, 2019 by admin Leave a Comment

Silicon Valley Clean Water, the joint powers authority which operates the treatment facility out in Redwood Shores which handles wastewater from Belmont, San Carlos, Redwood City, Atherton and Menlo Park, is in the midst of a multi-year, multi-hundred-million-dollar maintenance/enhancement project.

As part of that project they are building a new line which will pump wastewater from where the various feeder lines come together near San Carlos Airport out to the treatment facility. This involves excavating a several mile long tunnel about 60 feet under the ground.

The technology they’re using to do this is similar to what’s used to build subway tunnels: a machine which bores its way underground.

It’s a very impressive machine, and quite large. Click on the thumbnails below to see what some of the major parts look like: