berkeley city council agenda committee special meeting

Monday, August 29, 2016 AGENDA Page 1

BERKELEY CITY COUNCIL AGENDA COMMITTEE

SPECIAL MEETING

BERKELEY CITY COUNCIL SPECIAL MEETING

MONDAY, AUGUST 29, 2016

2:30 P.M.

6th Floor Conference Room, 2180 Milvia Street Committee Members:

Mayor Bates, Councilmembers Linda Maio and Susan Wengraf (Alternate: Councilmember Anderson)

AGENDA

1. Roll Call

2. Public Comment

3. Approval of Minutes: July 5, 2016

4. Review and Approve draft agendas: a. 9/13/16 – 5:00 p.m. Special City Council Meeting b. 9/13/16 – 7:00 p.m. Regular City Council Meeting

1. Referred items c. Adjournments in memory of -

5. Council Items: a. Council Worksessions – Review updates and approve b. Council Referrals to Agenda Committee c. Land Use Calendar

6. Adjournment – next meeting Tuesday, September 6, 2016

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Monday, August 29, 2016 AGENDA Page 2

Additional items may be added to the draft agenda per Council Rules of Procedure.

Rules of Procedure Resolution No. 67,500-N.S., Article III, C3c - Agenda - Submission of Time Critical Items

Time Critical Items. A Time Critical item is defined as a matter that is considered urgent by the sponsor and that has a deadline for action that is prior to the next meeting of the Council and for which a report prepared by the City Manager, Auditor, Mayor or council member is received by the City Clerk after established deadlines and is not included on the Agenda Committee’s published agenda.

The City Clerk shall bring any reports submitted as Time Critical to the meeting of the Agenda Committee. If the Agenda Committee finds the matter to meet the definition of Time Critical, the Agenda Committee may place the matter on the Agenda on either the Consent or Action Calendar.

The City Clerk shall not accept any item past the adjournment of the Agenda Committee meeting for which the agenda that the item is requested to appear on has been approved.

This is a meeting of the Berkeley City Council Agenda Committee. Since a quorum of the Berkeley City Council may actually be present to discuss matters with the Council Agenda Committee, this meeting is being noticed as a special meeting of the Berkeley City Council as well as a Council Agenda Committee meeting.

Written communications addressed to the Agenda Committee and submitted to the City Clerk Department by 5:00 p.m. the Friday before the Committee meeting, will be distributed to the Committee prior to the meeting. After the deadline for submission, residents must provide 10 copies of written communications to the City Clerk at the time of the meeting.

This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, 981-6900. COMMUNICATION ACCESS INFORMATION: This meeting is being held in a wheelchair accessible location. To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at 981-6346(V) or 981-7075 (TDD) at least three business days before the meeting date. Attendees at public meetings are reminded that other attendees may be sensitive to various scents, whether natural or manufactured, in products and materials. Please help the City respect these needs.

I hereby certify that the agenda for this special meeting of the Berkeley City Council was posted at the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on August 25, 2016.

Mark Numainville, City Clerk

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Tuesday, July 5, 2016 MINUTES Page 1

BERKELEY CITY COUNCIL AGENDA COMMITTEE

SPECIAL MEETING MINUTES

BERKELEY CITY COUNCIL SPECIAL MEETING MINUTES

TUESDAY, JULY 5, 2016

2:30 P.M.

6th Floor Conference Room, 2180 Milvia Street Committee Members:

Mayor Bates, Councilmembers Linda Maio and Susan Wengraf (Alternate: Councilmember Anderson)

1. Roll Call: 2:30 p.m. Present: Maio, Wengraf, Bates.

2. Public Comment: 0 speakers.

3. M/S/C (Wengraf/Maio) to approve the Minutes of June 27, 2016

4. Review and Approve draft agendas: a. M/S/C (Maio/Bates) to approve the agenda of the 7/19/16 – 5:30 p.m.

Special City Council Meeting. All Ayes. b. M/S/C (Bates/Maio) to approve the agenda of the 7/19/16 – 7:00 p.m.

Regular City Council Meeting revised to include the changes below. All Ayes. Item Added – Addressing Potential Unintended Consequences by Evaluating

Additional Budget Information (Worthington) Item 15 Contract: Ray’s Electric for King and Emerson Safe Routes to School Project

(City Manager) – Revised recommendation Item 16 Contract: Ray's Electric for the Hearst Avenue Complete Street Project (City

Manager) – Revised recommendation Item 22 Support the California Healthcare, Research and Prevention Tobacco Tax

Act of 2016 (Moore) – Councilmember Worthington added as a co-sponsor Item 23 Support the California Healthcare, Research and Prevention Tobacco Tax

Act of 2016 Initiative (Worthington) – Item removed from the agenda Item 24 Opposition to Business License Tax Initiative Sponsored by Large Landlords

(Arreguin) – Revised item submitted Item 26 Selecting Fifth and Sixth Medical Cannabis Dispensaries (Worthington) –

moved to Action Calendar Item 27 City Manager Referral: Consider the Four Recommendations Contained in

the Alameda County Grand Jury Report (Worthington) – moved to Action Calendar Item 28 Referral to the Public Works Commission to Evaluate the New Cape-Seal

Pavement Practices in Berkeley (Worthington) – revised to be a referral to the Public Works Commission

Item 29 Supporting the End of the Dog Meat Festival in Yulin, China – Additional background information requested in item by Agenda Committee

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Tuesday, July 5, 2016 AGENDA Page 2

Item 32 City Manager Referral: Housing Wage for Major Residential Mix-Use Projects (Worthington) – revised to be a referral to the Labor Commission

Item 33 City Co-Sponsorship: A Series of Workshops on Haiku and a Celebration of Haiku – revised Financial Impacts to “none”

Item 35 Support SB 1289 the Dignity Not Detention Act (Worthington) – additional information requested in report by Agenda Committee

Item 36 Commission Work Plans (Droste) – Councilmembers Maio and Worthington added as co-sponsors

1. Referred items – None c. Adjournments in memory of:

1. Ronnie Gilbert, Folk Singer 2. Michael Pachovis, Disability Rights Advocate

5. Council Items: a. Council Worksessions – Added Alameda County Housing Bond to the

September 13 Worksession b. Council Referrals to Agenda Committee c. Land Use Calendar

6. Adjourned at 2:47 p.m.

Mark Numainville, City Clerk

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Tuesday, September 13, 2016 DRAFTWORKSESSION AGENDA Page 1

D R AF T P R O CLAM AT I O N

C AL L I N G A S PE C I AL M E E TI NG O F T HE B E R K E LE Y C I T Y C O U N CI L

In accordance with the authority in me vested, I do hereby call the Berkeley City Council in special session as follows:

Tuesday, September 13, 2016

5:00 P.M.

COUNCIL CHAMBERS - 2134 MARTIN LUTHER KING JR. WAY

TOM BATES, MAYOR Councilmembers:

DISTRICT 1 – LINDA MAIO DISTRICT 5 – LAURIE CAPITELLI DISTRICT 2 – DARRYL MOORE DISTRICT 6 – SUSAN WENGRAF DISTRICT 3 – MAX ANDERSON DISTRICT 7 – KRISS WORTHINGTON DISTRICT 4 – JESSE ARREGUIN DISTRICT 8 – LORI DROSTE

Preliminary Matters

Roll Call:

Worksession

1.

Zero Waste Worksession From: City Manager Contact: Phillip Harrington, Public Works, 981-6300

2a.

Emergency Funds for Community Conservation Centers, Inc. (Continued from July 7, 2016) From: Zero Waste Commission Contact: Manuel Hector, Commission Secretary, 981-6300

2b.

Emergency Funds for Community Conservation Centers, Inc. (Continued from July 7, 2016) From: City Manager Contact: Phillip Harrington, Public Works, 981-6300

3.

Presentation: Alameda County Housing Bond From: City Manager Contact: Paul Buddenhagen, Housing and Community Services, 981-5400

Public Comment - Items on this agenda only

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Adjournment

I hereby request that the City Clerk of the City of Berkeley cause personal notice to be given to each member of the Berkeley City Council on the time and place of said meeting, forthwith. IN WITNESS WHEREOF, I have hereunto set my hand and caused the official seal of the City of Berkeley to be affixed on this 1st day of September, 2016.

Tom Bates, Mayor

Public Notice – this Proclamation serves as the official agenda for this meeting.

ATTEST:

Date: 9/1/16 Mark Numainville, City Clerk

NOTICE CONCERNING YOUR LEGAL RIGHTS: If you object to a decision by the City Council to approve or deny an appeal, the following requirements and restrictions apply: 1) Pursuant to Code of Civil Procedure Section 1094.6 and Government Code Section 65009(c)(1)(E), no lawsuit challenging a City decision to deny or approve a Zoning Adjustments Board decision may be filed and served on the City more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90-day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a Zoning Adjustments Board decision, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.

Live captioned broadcasts of Council Meetings are available on Cable B-TV (Channel 33), via Internet accessible video stream at http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx and KPFB

Radio 89.3. Archived indexed video streams are available at http://www.CityofBerkeley.info/CityCouncil.

Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m. Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the City Clerk. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6908 or [email protected] for further information.

Agendas and agenda reports may be accessed via the Internet at http://www.CityofBerkeley.info/CityCouncil

and may be read at reference desks at the following locations: City Clerk Department Libraries: 2180 Milvia Street Main - 2090 Kittredge Street Tel: 510-981-6900 Claremont Branch – 2940 Benvenue TDD: 510-981-6903 West Branch – 1125 University Fax: 510-981-6901 North Branch – 1170 The Alameda Email: [email protected] South Branch – 1901 Russell

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http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx

http://www.cityofberkeley.info/CityCouncil

mailto:[email protected]

http://www.cityofberkeley.info/CityCouncil

Tuesday, September 13, 2016 DRAFT WORKSESSION AGENDA Page 3

COMMUNICATION ACCESS INFORMATION: This meeting is being held in a wheelchair accessible location. To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at 981-6346(V) or 981-7075 (TDD) at least three business days before the meeting date. Please refrain from wearing scented products to this meeting.

Captioning services are provided at the meeting, on B-TV, and on the Internet. In addition, assisted listening devices for the hearing impaired are available from the City Clerk prior to the meeting, and are to be returned before the end of the meeting.

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Zero Waste Commission

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

WORKSESSION September 13, 2016 (Continued from July 7, 2016)

To: Honorable Mayor and Members of the City Council

From: Zero Waste Commission

Submitted by: Beck Cowles, Chairperson, Zero Waste Commission

Subject: Emergency Funds for Community Conservation Centers, Inc. RECOMMENDATION Allocate an Emergency payment of $500,000 to Community Conservation Centers, Inc. the Berkeley Recycling Center contractor, so that they can stay in operation while contract negotiations take place.

FISCAL IMPACTS OF RECOMMENDATION Total cost of $500,000; but could be offset by a future agreement with to Community Conservation Centers (CCC) incorporating payments made into the contract package.

CURRENT SITUATION AND ITS EFFECTS Market revenues are not sufficient to cover CCC’s annual costs to operate Berkeley Recycling with the result that over the past three years CCC has contributed about $0.9 million from its reserves to keep the program open and operational. Unfortunately, CCC’s reserves are almost exhausted, and CCC no longer has the working capital to continue subsidizing the services provided to the City. While overall material revenue has declined, the City agreed to amend the contract to accept and pay for mixed plastic processing. No contract amendment has been approved and to date, the City has only reimbursed for FY 2014 plastics costs.

BACKGROUND CCC has been working with City Staff for more than 18 months to negotiate a new contract for Berkeley Recycling services. CCC’s current contract expired on June 30, 2015 and the current extension expires on June 30, 2016. At the February 22, 2016 Zero Waste Commission meeting, CCC’s Executive Director, Sara MacKusick stated that CCC will have to shut the MRF down after June 30, 2016 if they are not offered a contract with adequate City support to cease operating at a deficit.

ENVIRONMENTAL SUSTAINABILITY City staff recommendations so far for “bridging the revenue gap” center on reducing services-by discontinuing the acceptance of mixed plastic. City Staff directed CCC to begin accepting these materials originally, and attempting to “balance the budget” by discontinuing plastic recycling would reverse recent progress and would mean that

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Emergency Funds for Community Conservation Centers WORKSESSION September 13, 2016

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more materials will go to the landfill. Closure of Berkeley Recycling may result in increased environmental and climate impacts due to increased hauling and lower-quality of recycling material end uses.

RATIONALE FOR RECOMMENDATION The Zero Waste Commission unanimously agreed at their meeting on March 28, 2016, that to help assure continuing MRF services, enable ongoing contract negotiations, and mitigate the ongoing financial deficits which CCC is facing, to recommend that emergency payments totaling $500,000 be made to CCC’s Reserve Fund to fund ongoing operations. The sum total of $500,000 represents the approximate amount of deficits sustained by CCC since the expiration of the old contract in June 2015 through the end of 2016. M/S/C (Hitchen/Sutherland) Ayes: Cowles, Twu, Wenning, Sutherland, Hitchen, Watson; Noes: None; Absent: None.

ALTERNATIVE ACTIONS CONSIDERED Allowing Berkeley Recycling to close would likely require that recyclables be trucked to another processor. The added cost of transporting all of Berkeley’s recyclables to another facility is estimated at $1.5 million per year. Recycling would revert to a single stream changing recycling quality and zero waste outcomes, and the percentage of waste diverted to landfill may increase significantly. Additionally, 29 Living Wage Jobs created by CCC would be lost in west Berkeley.

CITY MANAGER See City Manager companion report.

CONTACT PERSON Manuel Hector, Acting Solid Waste & Recycling Manager, 981-6359

Related materials:

http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3_-_City_Council/2011/07Jul/2011-07-12_Item_34a_Contract_Community_Conservation_Centers.pdf

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Tuesday, September 13, 2016 DRAFT AGENDA Page 1

D R AF T AG E N D A

BERKELEY CITY COUNCIL MEETING

Tuesday, September 13, 2016 7:00 P.M.

COUNCIL CHAMBERS - 2134 MARTIN LUTHER KING JR. WAY

TOM BATES, MAYOR Councilmembers:

DISTRICT 1 – LINDA MAIO DISTRICT 5 – LAURIE CAPITELLI DISTRICT 2 – DARRYL MOORE DISTRICT 6 – SUSAN WENGRAF DISTRICT 3 – MAX ANDERSON DISTRICT 7 – KRISS WORTHINGTON DISTRICT 4 – JESSE ARREGUIN DISTRICT 8 – LORI DROSTE

This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, 981-6900.

The City Council may take action related to any subject listed on the Agenda. The Mayor may exercise a two minute speaking limitation to comments from Councilmembers. Meetings will adjourn at 11:00 p.m. - any items outstanding at that time will be carried over to a date/time to be specified.

Preliminary Matters

Roll Call:

Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional ceremonial matters.

1. Pledge of Allegiance to the Flag

City Manager Comments: The City Manager may make announcements or provide information to the City Council in the form of an oral report. The Council will not take action on such items but may request the City Manager place a report on a future agenda for discussion.

Public Comment on Non-Agenda Matters: Persons will be selected by lottery to address matters not on the Council agenda. If five or fewer persons submit speaker cards for the lottery, each person selected will be allotted two minutes each. If more than five persons submit speaker cards for the lottery, up to ten persons will be selected to address matters not on the Council agenda and each person selected will be allotted one minute each. Persons wishing to address the Council on matters not on the Council agenda during the initial ten-minute period for such comment, must submit a speaker card to the City Clerk in person at the meeting location and prior to commencement of that meeting. The remainder of the speakers wishing to address the Council on non-agenda items will be heard at the end of the agenda. Speaker cards are not required for this second round of public comment on non-agenda matters.

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Public Comment on Consent Calendar and Information Items Only: The Council will take public comment on any items that are either on the amended Consent Calendar or the Information Calendar. Up to three speakers will be entitled to two minutes each to speak in opposition to or support of a Consent Calendar Item. The Presiding Officer will ask additional persons in the audience to stand to demonstrate their respective opposition to or support of the item.

In the event that there are more than three persons wishing to speak either in opposition to or support of a “Consent” item, the Presiding Officer will move the item to the beginning of the Action Calendar. Prior to moving the item, the Presiding Officer will fully inform those persons in the audience of this process.

Additional information regarding public comment by City of Berkeley employees and interns: Employees and interns of the City of Berkeley, although not required, are encouraged to identify themselves as such, the department in which they work and state whether they are speaking as an individual or in their official capacity when addressing the Council in open session or workshops.

Recess Items

1.

Contract No. 9935 Amendment: Gallagher & Burk Inc. for FY 2015 Measure M Street Resurfacing and Reconstruction From: City Manager Recommendation: Adopt a Resolution ratifying action taken by the City Manager during recess to amend Contract No. 9935 with Gallagher & Burk, Inc. for FY 2015 Measure M Street Resurfacing and Reconstruction Project, increasing the contract amount by $424,435 for an amended total amount not to exceed $6,290,000. Financial Implications: Measure M GO Streets & Water Imp. Fund - $424,435 Contact: Phillip Harrington, Public Works, 981-6300

2.

Contract No. R8781A: Community Conservation Centers, Inc. for Reimbursement of Mixed Plastics Processing Costs From: City Manager Recommendation: Adopt a Resolution ratifying the action of the City Manager taken during recess to execute an amendment to Contract No. R8781A with Community Conservation Centers, Inc. for recyclables processing services to provide a one-time payment of $160,500 for rigid mixed plastics processing costs incurred in FY 2016. Financial Implications: Various Funds - $160,500 Contact: Phillip Harrington, Public Works, 981-6300

3.

Contract No. 10294 Amendment: R3 Consulting Group, Inc. for Independent Audit Services of the Community Conservation Center, Inc. From: City Manager Recommendation: Adopt a Resolution ratifying the action of the City Manager taken during recess amending Contract No. 10294 with R3 Consulting Group, Inc. for additional independent audit consulting services, increasing the contract by $20,028 for a total amount not to exceed $70,000. The contract’s December 31, 2016 expiration date will remain unchanged. Financial Implications: Zero Waste Fund - $70,000 Contact: Phillip Harrington, Public Works, 981-6300

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Consent Calendar


The Council will first determine whether to move items on the agenda for action or “information” to the “Consent Calendar”, or move “Consent Calendar” items to action. Items that remain on the “Consent Calendar” are voted on in one motion as a group. “Information” items are not discussed or acted upon at the Council meeting unless they are moved to “Action” or “Consent”.

After hearing from public speakers regarding items remaining on the Consent Calendar, any Councilmember may move any information or Consent item to “Action”, however no additional items can be moved onto the Consent Calendar at that point. Following this, the Council will vote on the items remaining on the Consent Calendar in one motion.

For items removed from the Consent Calendar to the Action Calendar for additional public comment, at the time the matter is taken up during the Action Calendar, public comment will be limited to persons who have not previous addressed that item during the Consent Calendar related public comment period.

4.

Minutes for Approval From: City Manager Recommendation: Approve the minutes for the Council meetings of July 7, 2016 (special), July 12 (special and regular), and July 19, 2016 (special closed, special and regular). Financial Implications: None Contact: Mark Numainville, City Clerk, 981-6900

5.

Establish 2017 City Council Meeting Schedule From: City Manager Recommendation: Adopt a Resolution establishing the City Council regular meeting schedule for 2017, with starting times of 7:00 p.m. Financial Implications: None Contact: Mark Numainville, City Clerk, 981-6900

6.

Correct a Drafting Error in Guidelines and Procedures for the Percent for Public Art in Private Development Program From: City Manager Recommendation: Adopt a Resolution adopting revised Guidelines and Procedures for the Percent for Public Art in Private Development Program to correct a drafting error, and rescinding Resolution No. 67,603-N.S. Financial Implications: None Contact: Michael Caplan, Economic Development, 981-7530

7.

Formal Bid Solicitations and Request for Proposals Scheduled For Possible Issuance After Council Approval on September 13, 2016 From: City Manager Recommendation: Approve the request for proposals or invitation for bids (attached to staff report) that will be, or are planned to be, issued upon final approval by the requesting department or division. All contracts over the City Manager’s threshold will be returned to Council for final approval. Financial Implications: Various Funds - $650,000. Contact: Henry Oyekanmi, Finance, 981-7300

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Consent Calendar


8.

City Manager Authority to Sign for Anthem Blue Cross Medi-Cal Managed Care Agreement From: City Manager Recommendation: Adopt a Resolution to grant the City Manager authority to sign on behalf of the City of Berkeley to enter into an agreement with Anthem Blue Cross Medi-Cal Managed Care. Financial Implications: See report Contact: Paul Buddenhagen, Housing and Community Services, 981-5400

9.

Contract No 9709A Amendment: Pacific Site Management for the Provision of Landscape Maintenance Services From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 9709A with Pacific Site Management for the provision of landscape maintenance services at the North Berkeley Senior Center, South Berkeley Senior Center, West Berkeley Service Center, Berkeley Mental Health Clinic and the Ann Chandler Public Health Center, increasing the not to exceed amount by $38,730 for FY2017 for a total not to exceed amount of $118,730 through June 30, 2017; and with the option to extend for two additional sequential one year terms in the additional amount of $40,000 per year, subject to the City’s annual budget appropriation process. Financial Implications: General Fund - $38,730 Contact: Paul Buddenhagen, Housing and Community Services, 981-5400

10.

Revenue Contract: 2016 Community Services Block Grant (CSBG) Targeted Initiative Contract From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager or her designee to accept the Community Services Block Grant (CSBG) Targeted Initiative Contract Number 16F-5502 for an initial amount of $17,000 and execute any resultant agreements and amendments that may increase the contract amount to up to $35,000 to support specific targeted initiatives defined by the State of California Department of Community Services and Development (CSD) for the period June 15, 2016 to May 31, 2017. Financial Implications: $17,000 (Grant) Contact: Paul Buddenhagen, Housing and Community Services, 981-5400

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Consent Calendar


11.

Contract No. 10183 Amendment: The Tides Center, the Fiscal Agent for EveryOne Home, for Continued Consultant Services in Support of the City’s Homeless Coordinated Entry System (CES) From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No.10183 with The Tides Center, the fiscal agent for EveryOne Home (EOH), to support the continued implementation of the CES in Berkeley through June 30, 2017 by adding $39,660 to the contract for a total contract amount not to exceed $74,610. Financial Implications: General Fund - $39,660 Contact: Paul Buddenhagen, Housing and Community Services, 981-5400

12.

Contract No. 5864F Amendment: Granicus Video Streaming Services From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 5864F with Granicus, Inc. for video streaming, podcasting, and archiving, increasing the amount by $25,340 for a total not to exceed $373,340 from November 14, 2002 to June 30, 2017. Financial Implications: Various Funds - $25,340 Contact: Savita Chaudhary, Information Technology, 981-6500

13.

Contract No. 8865C Amendment: Accela, Inc. for Professional Services and Software Maintenance From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 8865C with Accela, Inc., for professional services and software maintenance, increasing the amount by $213,939, for a total not to exceed $1,364,888, from December 12, 2011 to June 30, 2019. Financial Implications: Various Funds - 213,939 Contact: Savita Chaudhary, Information Technology, 981-6500

14.

Contract: Geographic Technologies Group for Geographic Information System (GIS) Master Plan From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to execute a contract with Geographic Technologies Group for Geographic Information System (GIS) Master Plan, for a total not to exceed $69,260 from September 14, 2016 to June 30, 2017. Financial Implications: Various Funds - $69,260 Contact: Savita Chaudhary, Information Technology, 981-6500

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Consent Calendar


15.

Contract No. 8216C Amendment: VeriPic, Inc. for Digital Evidence Management System From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend contract No. 8216C with VeriPic, Inc., increasing the amount by $40,314, for a total not to exceed $147,364 from December 21, 2009 through June 30, 2021. Financial Implications: General Fund - $40,314 Contact: Savita Chaudhary, Information Technology, 981-6500

16.

Contract No. 9149 Amendment: Advantel Networks for Voice over Internet Protocol (VoIP) Telephone System From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 9149 with Advantel Networks for a Voice over Internet Protocol (VoIP) telephone system licensing and maintenance, increasing the contract by $82,500 for a total not to exceed amount of $1,287,500, from November 15, 2012 to June 30, 2018. Financial Implications: General Fund - $1,287,500 Contact: Savita Chaudhary, Information Technology, 981-6500

17.

Contract No. 6096C Amendment: ESI Group, IBM Hardware and Software Lease From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to amend Contract No. 6096C with ESI Group for leasing, maintenance, technical support, and consulting services for International Business Machines (IBM) hardware and software, increasing the current contract by $320,618, for a total not to exceed $1,724,618 from June 2, 2003 through June 30, 2019. Financial Implications: General Fund - $320,618 Contact: Savita Chaudhary, Information Technology, 981-6500

18.

Non-Exclusive Rubbish Hauling Franchises From: City Manager Recommendation: Adopt a Resolution declaring the Council’s intention pursuant to Chapter 9.60 of the Berkeley Municipal Code to consider granting non-exclusive rubbish collection and transportation franchises at a public hearing on October 18, 2016 at 7:00 p.m. to the following applicants: Waste Management of Alameda County, Inc.; Biagini Waste Reduction Systems, Inc.; and Republic Services. Financial Implications: See report Contact: Phillip Harrington, Public Works, 981-6300

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Consent Calendar


19.

Purchase Orders: Trillium CNG for Compressed Natural Gas Fuel FY 2015 - FY 2019 From: City Manager Recommendation: Adopt a Resolution authorizing the City Manager to execute purchase orders for compressed natural gas with Trillium CNG for the five-year period FY2015 through FY2019, and approve corresponding annual increases of $150,000 to the original licensing agreement for a new total contract amount not to exceed $1,375,000. The original licensing agreement’s December 2013 expiration date will be extended through June 30, 2019. Financial Implications: See report Contact: Phillip Harrington, Public Works, 981-6300

20.

Contract: Pacific Trenchless, Inc. for Sanitary Sewer Rehabilitation - Adeline Street, Shattuck Avenue, Haste Street, MLK Jr. Way, Alcatraz Avenue, Ellis Street, Colusa Avenue, Tacoma Avenue, Acton Street and Channing Way From: City Manager Recommendation: Adopt a Resolution approving the plans and specifications for the Sanitary Sewer Project, 16-11060-C, located on Adeline Street, Shattuck Avenue, Haste Street, MLK Jr. Way, Alcatraz Avenue, Ellis Street, Colusa Avenue, Tacoma Avenue, Acton Street and Channing Way; accepting the bid of the lowest responsive and responsible bidder, Pacific Trenchless, Inc.; and authorizing the execution of a contract and any amendments, extensions or other change orders until completion of the project in accordance with the approved plans and specifications, in an amount not to exceed $3,480,154. Financial Implications: Sanitary Sewer Operation Fund - $3,480,154 Contact: Phillip Harrington, Public Works, 981-6300

21.

Acton Courtyard Rent Overcharges From: Housing Advisory Commission Recommendation: Direct the City Manager to find an appropriate solution to mitigate the impacts of rent overcharges and non-qualifying tenancies at Acton Courtyard, such as by requiring the property owner, Equity Residential, to either refund the overcharged amount to current and former tenants, if legally compliant, or to pay into the Housing Trust Fund an equivalent amount. Financial Implications: See report Contact: Amy Davidson, Commission Secretary, 981-5400

Council Consent Items

22.

Appointment of Christiana Tiedemann to the Berkeley Housing Authority From: Mayor Bates Recommendation: Adopt a Resolution approving the appointment of Christiana Tiedemann to the vacant position on the Berkeley Housing Authority (BHA) for a four year term. Financial Implications: None Contact: Tom Bates, Mayor, 981-7100

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23.

Re-Appointment of Valerie Agostino and Adolph Moody to the Berkeley Housing Authority Board of Commissioners From: Mayor Bates Recommendation: Adopt a Resolution approving the re-appointment of Commissioners Valerie Agostino and Adolph Moody to the Berkeley Housing Authority (BHA) Board of Commissioners for two year terms. Financial Implications: None Contact: Tom Bates, Mayor, 981-7100

24.

Guidelines for $100 Million Infrastructure and Facilities Bond Spending From: Mayor Bates Recommendation: Adopt a Resolution establishing guidelines for City Council decisions and public participation in determining spending priorities and allocations for revenue from a $100 million infrastructure and facilities bond. Financial Implications: See report Contact: Tom Bates, Mayor, 981-7100

25.

Requirement for Rooftop Solar From: Mayor Bates Recommendation: Request that the Energy Commission develop recommendations for a rooftop solar requirement in Berkeley. Financial Implications: Staff time Contact: Tom Bates, Mayor, 981-7100

26.

Ad-Hoc Committee on a More Open Government Recommendations on the Good Government Package From: Councilmembers Arreguin, Capitelli, Wengraf, and Droste Recommendation: 1. Refer to the City Manager to examine the online public calendars for the Mayor and Councilmembers. 2. Designate the City Attorney’s Office as the sole drafter of a ballot question on an initiative or Council-initiated ballot measure. However, after a ballot question is drafted it is presented to the Council for input and the City Attorney can include Council’s suggested modifications. Once the ballot question is finalized, Council would be required to submit the ballot question to the voters without any further modifications. Financial Implications: Staff time Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

27.

Worksession on Improving City Council Meeting Process From: Councilmembers Arreguin, Capitelli, Wengraf, and Droste Recommendation: Refer to the Agenda Committee to schedule a worksession in early 2017 for the Ad-Hoc Committee on a More Open Government to present its findings on improving City Council meeting agenda setting and process. Financial Implications: None Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

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28.

Support for Providing Medication Abortion Services at the Tang Center From: Councilmembers Arreguin, Wengraf, and Droste Recommendation: Send a letter to UC Berkeley Chancellor Nicholas Dirks urging University Health Services to provide access to medication abortion services at the Tang Center. Financial Implications: None Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

29.

City Manager Referral: Evaluate the Effectiveness of the City “Move-out” Program From: Councilmembers Worthington and Wengraf Recommendation: Refer to the City Manager to examine the effectiveness of the City “Move-out” program and respond to the findings prior to May 2017. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

30.

Send Letter to U.S. Fish and Wildlife Service Director Daniel Ashe to Protect the Monarch Butterfly Population From: Councilmember Worthington Recommendation: Send a letter to U.S. Fish and Wildlife Service Director Daniel Ashe urging protection of the threatened monarch butterfly population. Financial Implications: None Contact: Kriss Worthington, Councilmember, District 7, 981-7170

31.

Support Proposition 55: Continue Existing State Proposition 30, a Tax Extension to Fund Education and Healthcare Initiative From: Councilmember Worthington Recommendation: That the City of Berkeley support Proposition 55 Tax Extension to Fund Education and Healthcare Initiative. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

32.

Proclamation Honoring the Fiftieth Anniversary of the Judah L. Magnes Memorial Museum From: Councilmember Worthington Recommendation: Adopt a proclamation honoring the fiftieth anniversary of the Judah Magnes Memorial Museum. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

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33.

Proclamation Commending #SaveBlackBerkeley From: Councilmember Worthington Recommendation: Adopt a proclamation commending #SaveBlackBerkeley for advocating for tenants and homeowners. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

34.

Oppose Proposition 66: Expediting the Execution Process of Inmates and Reforming California’s Death Penalty Policy From: Councilmember Worthington Recommendation: Oppose Proposition 66 the state initiative that will expedite the execution process of inmates on death row and reform California’s death penalty policy. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

35.

Amend Minimum Wage Ordinance and Adopt a Paid Sick Leave Ordinance as a Compromise From: Councilmember Worthington Recommendation: That the Council amend the Minimum Wage Ordinance and adopt a Paid Sick Leave Ordinance as a compromise. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

Action Calendar The public may comment on each item listed on the agenda for action as the item is taken up. Where

an item was moved from the Consent Calendar to Action no speaker who has already spoken on that item would be entitled to speak to that item again.

The Presiding Officer will request that persons wishing to speak line up at the podium to determine the number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer may, with the consent of persons representing both sides of an issue, allocate a block of time to each side to present their issue.

Action items may be reordered at the discretion of the Chair with the consent of Council.

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Action Calendar – Old Business


36.

A.C. Transit “Southside Pilot Project” for Transit Improvements (Continued from July 12, 2016) From: Councilmember Worthington Recommendation: Approve the AC Transit “Southside Pilot Project” for transit improvements. Financial Implications: Minimal Contact: Kriss Worthington, Councilmember, District 7, 981-7170

37.

Opposition to Business License Tax Initiative Sponsored by Large Landlords (Continued from July 19, 2016) From: Councilmembers Arreguin, Capitelli, and Maio Recommendation: Oppose the ballot initiative “Increasing Business License Tax on Residential Rentals and Authorizing the City Council to Establish a New Legislative Body to Advise the Council on Affordable Housing and Homelessness”, sponsored by the Berkeley Property Owners Association (BPOA), which would raise significantly less funding for city services, including affordable housing and homeless prevention. Financial Implications: None Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

38.

Labor Commission Referral: Housing Wage for Major Residential Mix-Use Projects (Continued from July 19, 2016) From: Councilmember Worthington Recommendation: Refer to the Labor Commission to develop an ordinance to create a housing wage for major residential mix-use projects. Financial Implications: Unknown Contact: Kriss Worthington, Councilmember, District 7, 981-7170

39.

Ballot Measure to Increase Police Accountability (Continued from July 19, 2016. Item contains revised material.) From: Councilmember Worthington Recommendation: Refer to the City Manager and City Attorney to direct staff to develop language for a Measure to amend the City Charter to increase police accountability, to be placed on the November 8, 2016 ballot. Financial Implications: Staff time Contact: Kriss Worthington, Councilmember, District 7, 981-7170

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40.

Urban Agriculture Package (Continued from July 19, 2016) From: Councilmember Arreguin Recommendation: Refer to the Planning Commission the development of an Urban Agriculture package that includes the following amendments to the Zoning Ordinance: 1. Designate urban agriculture as a primary and incidental use category and define as, “the production of food or horticultural crops for harvest, sale, and/or donation”. 2. Add urban agriculture as an Outdoor Use in all Commercial zones as well as the MU-LI and MU-R zones. Permit urban agriculture in these zones on lots less than 40,000 sq. ft. as a “by-right” use. Lots greater than 40,000 sq. ft. will require an Administrative Use Permit (AUP). 3. Permit urban agriculture on occupied lots in residential zones as a “by-right” use. 4. Define rooftop gardens and develop requirements that comply with existing building codes. 5. Permit accessory uses, including sheds, greenhouses, trellises, pergolas and fences, as a “by-right” use on occupied and vacant lots used for urban agriculture that satisfy requirements cited in Sections 23D.08.005 and 23E.04.040. 6. Permit group class instruction, community gatherings, and sales as a “by-right” use in all zones similar to Residential (Section 23C.20.010(B)). Specifically in the M and MM zones, update Sections 23E.72.060 and 23E.72.060, which state that sales are only permitted on 10% of the floor area, to allow goods manufactured on site to be sold as an exempt accessory use requiring only a zoning certificate. 7. Permit sales of “value-added” products or processed food products to be sold on site during the sales of non-processed edibles or plants that comply with the State of California Homemade Food Act. Financial Implications: Staff time Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

41.

Berkeley Deep Green Building Initiative (Continued from July 19, 2016) From: Councilmember Arreguin Recommendation: Refer to the City Manager and Energy Commission the development of policies and programs to improve the energy efficiency and sustainability of buildings based on the Berkeley Deep Green Building proposal. Financial Implications: Staff time Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

42.

Addressing Potential Unintended Consequences by Evaluating Additional Budget Information (Continued from July 19, 2016) (Item contains supplemental material.) From: Councilmember Worthington Recommendation: That the Council consider additional information about the potential unintended consequences from the budget decision. Financial Implications: See report Contact: Kriss Worthington, Councilmember, District 7, 981-7170

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43.

Urging the California State Legislature to amend or oppose the “By Right Housing Approvals” Budget Trailer Bill (Continued from July 19, 2016. Item contains supplemental material.) From: Councilmember Arreguin Recommendation: Adopt a Resolution urging the California State Legislature to amend or oppose the “By-Right Housing Approvals” Budget Trailer Bill in recognition of Berkeley’s local planning tools and significant contributions to regional housing development. Copies of the Resolution are to be sent to Governor Jerry Brown, State Senate President Pro Tem Kevin De Leon, Senator Loni Hancock, Assembly Speaker Anthony Rendon and Assemblymember Tony Thurmond. Financial Implications: None Contact: Jesse Arreguin, Councilmember, District 4, 981-7140

Action Calendar – New Business

44.

Contract Amendment: CalPERS Cost Share under Government Code 20516 for Employees Represented by the Public Employees Union Local 1 From: City Manager Recommendation: Adopt second reading of Ordinance No. 7,504-N.S. amending the City’s contract with CalPERS to provide the mandatory monthly employee contribution of 8.0% of salary as provided under Government Code Section 20516, applicable to all members (Miscellaneous employees, both Classic and New Members) represented by the Public Employees Union (PEU) Local 1 (hereinafter “PEU Local 1”). First Reading Vote: All Ayes. Financial Implications: See report Contact: Sarah Reynoso, Human Resources, 981-6800

45a.

Additional Parking Spaces for Persons with Disabilities at the New Center Street Garage From: Commission on Disability Recommendation: Add five (5) parking spaces to the sixteen designed spaces for a minimum of twenty one for persons with disabilities. Financial Implications: Unknown Contact: Carmella Rejwan, Commission Secretary, 981-6300

45b.

Companion Report: Additional Parking Spaces for Persons with Disabilities at the New Center Street Garage From: City Manager Recommendation: Approve the design for the new Center Street Garage without adding five more accessible parking spaces as requested by the Commission on Disability. Financial Implications: See report Contact: Phillip Harrington, Public Works, 981-6300

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Information Reports


46.

LPC-NOD: 2910-2912 Telegraph Avenue From: City Manager Contact: Carol Johnson, Planning and Development, 981-7400

47.

Progress Report on Berkeley Police Department and Police Review Commission Development of Revisions to BPD Policies and Procedures for Responding to Protest Activity From: City Manager Contact: Michael Meehan, Police, 981-5900; Katherine J. Lee, Police Review Commission, 981-4950

Public Comment – Items Not Listed on the Agenda –

Adjournment NOTICE CONCERNING YOUR LEGAL RIGHTS: If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply: 1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90-day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a use permit or variance, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.

Live captioned broadcasts of Council Meetings are available on Cable B-TV (Channel 33), via internet accessible video stream at http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx

and KPFB Radio 89.3. Archived indexed video streams are available at http://www.cityofberkeley.info/citycouncil. Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m.

Communications to the City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the City Clerk Department at 2180 Milvia Street. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk Department for further information. Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the public counter at the City Clerk Department located on the first floor of City Hall located at 2180 Milvia Street as well as posted on the City's website at http://www.cityofberkeley.info.

Agendas and agenda reports may be accessed via the Internet at http://www.cityofberkeley.info/citycouncil

and may be read at reference desks at the following locations: City Clerk Department Libraries: 2180 Milvia Street Main - 2090 Kittredge Street Tel: 510-981-6900 Claremont Branch – 2940 Benvenue TDD: 510-981-6903 West Branch – 1125 University Fax: 510-981-6901 North Branch – 1170 The Alameda Email: [email protected] South Branch – 1901 Russell

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http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx

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http://www.cityofberkeley.info/citycouncil


COMMUNICATION ACCESS INFORMATION: This meeting is being held in a wheelchair accessible location. To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at 981-6346(V) or 981-7075 (TDD) at least three business days before the meeting date. Attendees at public meetings are reminded that other attendees may be sensitive to various scents, whether natural or manufactured, in products and materials. Please help the City respect these needs.

Captioning services are provided at the meeting, on B-TV, and on the Internet. In addition, assisted listening devices for the hearing impaired are available from the City Clerk prior to the meeting, and are to be returned before the end of the meeting.

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDARSEPTEMBER 13, 2016


From: Housing Advisory Commission

Submitted by: Brendan Darrow, Chairperson, Housing Advisory Commission

Subject: Acton Courtyard Rent Overcharges

RECOMMENDATIONDirect the City Manager to find an appropriate solution to mitigate the impacts of rent overcharges and non-qualifying tenancies at Acton Courtyard, such as by requiring the property owner, Equity Residential, to either refund the overcharged amount to current and former tenants, if legally compliant, or to pay into the Housing Trust Fund an equivalent amount.

FISCAL IMPACTS OF RECOMMENDATIONThe total amount of rent overcharges is unclear to the HAC at this time. However, according to a letter sent by Equity Residential to the tenants of Acton Courtyard, the amount of overcharges is approximately $800 per month per unit, or in excess of $400,000 per year, which should either be refunded to current and prior tenants as appropriate or paid into the Housing Trust Fund.

CURRENT SITUATION AND ITS EFFECTSEquity Residential, the owner of Acton Courtyard, is out of compliance with the regulatory agreement with the City governing the operation of that property as a Below Market Rate building. Specifically, Equity Residential has failed to comply with the requirement that the 51 units not rented as “inclusionary” units must be offered at rents that are affordable to a household at 120% AMI. The result of Equity Residential’s failure to comply with the requirement is that it has been charging rents above what is lawful according to the regulatory agreement. Furthermore, some of the tenants in the building do not qualify for residency under the 120% AMI threshold requirement and are over-income.

At the May 5, 2016 meeting of the Housing Advisory Commission, the Housing Advisory Commission (HAC) unanimously recommended that the City Council find an appropriate solution to mitigate the impacts of rent overcharges and non-qualifying tenancies at Acton Courtyard, such as by requiring the property owner, Equity Residential, to either refund the overcharged amount to current and former tenants, if legally compliant, or to pay into the Housing Trust Fund an equivalent amount. The HAC supports the imposition of the maximum legally permissible remedy. The HAC recommends that City

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http://www.ci.berkeley.ca.us/manager

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Acton Courtyard Rent Overcharges CONSENT CALENDARSeptember 13, 2016

Council direct the City Manager to conduct an ongoing assessment of compliance with Below Market Rate requirements at this property and supports staff’s current efforts to do so. M/S/C (Soto-Vigil/Berg) Vote: Ayes: Abramson, Berg, Crandall, Laverde-Levine, Martinucci, Soto-Vigil, Tregub, Vincent, and Wolfe. Noes: None. Abstain: None. Absent: Aguilar-Canabal (excused) and Darrow (excused).

BACKGROUNDActon Courtyard, a 71-unit rental property located at the corner of University and Acton (originally 1392 University, now 1370 University) was developed in partnership with the City of Berkeley via the State's Surplus Land Act. The City acquired the land and gave it to the applicant free of charge.

The conditions of approval at the Zoning Adjustments Board were for a 71-unit residential project, with 20 "inclusionary" units that would be offered to families at 50% Area Median Income (AMI) (15 units) and 80% AMI (5 units). The other 51 units would be offered to moderate-income households, at moderate-income rents affordable at 120% of AMI.

The project was originally built by Patrick Kennedy and then was sold to Equity Residential, one of the largest residential property owners in the country. The property, along with Equity Residential's entire Berkeley portfolio, is currently for sale.

Perhaps as a result of the due diligence process involved in selling the building, Equity Residential recently announced to the tenants of Acton Courtyard that it did not realize – at the time it purchased the property – that there was a regulatory agreement in place that requires that "the remaining fifty-one (51) units are to remain at rents, which do not exceed affordability at 120% of AMI." As a result, Equity Residential has been overcharging the tenants of the building by an average of around $800 per unit, or potentially more than $400,000 per year in recent years.

Equity Residential recently notified the tenants of the building that those who qualify as earning less than 120% of AMI will be receiving a refund of the overcharges for the current year. Equity has not announced its intention to return the overcharges for previous years, nor what it plans to do about those households whose incomes exceed 120% AMI.

Tenants of the property have been in touch with various City Councilmembers to seek guidance about what will happen going forward. Among the remedies available to the City are to seek payment "in an amount sufficient to allow the City to provide rental housing equivalent to that wrongfully denied under [the regulatory agreement], in terms of affordability, size, quality, and other appropriate factors." At the very least, Equity Residential should return the excess profits that it received by charging illegally high rents for the past several years.

ENVIRONMENTAL SUSTAINABILITYThere are no known environmental effects associated with this recommendation.

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RATIONALE FOR RECOMMENDATIONAny tenant households who qualify as earning 120% AMI (or below) should receive a refund. If legally compliant and feasible to do so, current and former tenant households who earned less than 120% AMI should similarly receive a refund. If all current and former tenants who were overcharged cannot be made whole, the amount of any remaining overcharges should be contributed to the Housing Trust Fund, so that the City can "provide rental housing equivalent to that wrongfully denied" by Equity Residential's illegally high rents.

To the extent that, per conversation with staff, the City of Berkeley Health, Housing, and Human Services Department is working on a solution, the HAC expresses support for its efforts.

ALTERNATIVE ACTIONS CONSIDEREDNone.

CITY MANAGERThe City Manager concurs with the Housing Advisory Commission’s recommendation to address historical rent overcharges at the Acton Courtyard apartment building. HHCS is working with Equity Residential (EQR) as EQR brings apartments into compliance with applicable regulatory agreements and has directed EQR to make payments for rent overcharges since 2012 either to past tenants, or the City’s Housing Trust Fund if tenants cannot be located.

In February 2016, Equity Residential contacted the City after determining the Acton Courtyard apartment building was out of compliance with regulatory agreements recorded on the property in 2002. These agreements required the project to provide 20 units under the City’s Inclusionary Housing Ordinance and another 51 units affordable to tenants with incomes at or below 120% of Area Median Income (currently $78,120 for a single person) for 55 years with annual reporting to the City. Over time, the Acton Courtyard has complied with Inclusionary Housing Ordinance requirements for the 20 below market rate (BMR) units, but not for the other 51 units.

The project’s developers (Jubilee Restoration and Panoramic Interests) acquired the site from the State of California, with involvement from the City, at no cost for the site. The State’s calculations determining the sale price discount were based on the requirement to provide the 20 BMR units alone. In the process, the developer also agreed to provide the other 51 units at restricted rents. In 2002, rents affordable at 120% of AMI were well above market.

After learning that the units were out of compliance, in March 2016, HHCS directed EQR to document whether existing tenants were qualified for the BMR program, offer qualified tenant households leases that complied with BMR program requirements, and rent units to qualified households as they turn over. Tenants who do not qualify for the BMR program can stay at the property but are not eligible for reduced rents. EQR chose to offer tenants who did not qualify for the BMR program the opportunity to

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transfer to vacancies in other EQR properties and receive reimbursement for up to $1,000 in moving costs. HHCS staff attended an EQR meeting with tenants in April to answer tenant questions. Since then EQR has been in regular contact with staff to address compliance.

Using Rent Stabilization Board (RSB) historical rent data and current rent roll information from EQR, HHCS estimated that rents at the property were most likely under the 120% AMI level until 2012. For example, in 2010, the allowable two-bedroom rents at 120% AMI were about $540 per month more than the estimated market rate. Starting in about 2012 those rates were close to even, and by 2015 estimated market rate rents were about $380 more than the allowable rents at the 120% AMI level.

On June 21, 2016 HHCS notified EQR that the additional steps to correct compliance were (1) starting July 1, 2016, to provide the difference between market rate (unrestricted) rents charged to tenants who do not qualify for the program and the restricted rent for that unit as a monthly payment to the City for the Housing Trust Fund, and (2) to refund the difference between rents charged and the applicable restricted rents for all tenants going back to July 1, 2012 to the tenants, if they can be reached, or to the City for the Housing Trust Fund.

Staff have agreed to allow one of the 51 units to be used as a manager’s unit instead of a rent –restricted unit. State law requires developments of this size to have a resident manager, and the City’s BMR program regulations prohibit leasing regulated units to employees of the property management company.

CONTACT PERSONAmy Davidson, Senior Community Development Project Coordinator, Health, Housing & Community Services, (510) 981-5406

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Office of the Mayor

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199

E-Mail: [email protected] Website: http://www.ci.berkeley.ca.us/mayor

CONSENT CALENDARSeptember 13, 2016

To: Members of the City CouncilFrom: Mayor Tom BatesSubject: Appointment of Christiana Tiedemann to the Berkeley Housing Authority

RECOMMENDATION:Adopt a Resolution approving the appointment of Christiana Tiedemann to the vacant position on the Berkeley Housing Authority (BHA) for a four year term.

BACKGROUND: On May 22, 2007, the Berkeley City Council established a Berkeley Housing Authority (BHA) Board of Commissioners. State law mandates BHA commissioners, including successors, be appointed by the Mayor and confirmed by the City Council.

In July 2016, BHA Chairperson, Carole Norris, accepted the resignation of Marjorie Cox. Ms. Cox has been an excellent commissioner, but due to demanding professional and personal responsibilities she felt it necessary to resign.

Ms. Tiedemann, a Berkeley resident, is currently a Deputy Attorney General with the California Department of Justice. She is the co-founder and current member of the Board of Directors of the Tenderloin Housing Clinic in San Francisco. She is also a former member and past chair of the City of Berkeley’s Zoning Adjustment Board.

I nominate Christiana Tiedemann for appointment to the Berkeley Housing Authority Board for a four year term.

FISCAL IMPACTS: None.

ENVIRONMENTAL SUSTAINABILITYConsistent with Berkeley’s Environmental Sustainability Goals and no negative impact.

CONTACT PERSON: Mayor Tom Bates, 981-7100

ATTACHMENT(S): 1. Resolution2. Resume

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4b.22

RESOLUTION NO. ##,###-N.S.

APPOINTMENT OF CHRISTINE TIEDEMANN TO THE BERKELEY HOUSING AUTHORITY BOARD OF COMMISSIONERS PURSUANT TO HEALTH AND SAFETY CODE SECTION 34270

WHEREAS, the Council of the City of Berkeley, as the governing body of the City of Berkeley, declared itself to the Commissioners of the Berkeley Housing Authority (BHA) and appointed two tenant Commissioners pursuant to Health and Safety Code Section 34290; and

WHEREAS, on May 22, 2007 the Mayor appointed and the City Council by a majority vote confirmed the appointment of 5 Commissioners and 2 tenant Commissioners to the BHA Board pursuant to Health and Safety Code Section 34270; and

WHEREAS, in July 2016 the chair of the Berkeley Housing Authority Board of Commissioners accepted the resignation of Marjorie Cox, creating a vacancy on the Board; and

WHEREAS, the Mayor of the City of Berkeley is an office filled by election of the people.

NOW THEREFORE, BE IT RESOLVED by the Mayor of the City of Berkeley that Christiana Tiedemann is hereby appointed to serve as a Commissioner of the Berkeley Housing Authority Board.

BE IT FURTHER RESOLVED by the Council of the City of Berkeley that it supports the Mayor’s determination regarding the qualifications of Ms. Tiedemann and hereby confirms the Mayor’s appointment.

BE IT FURTHER RESOLVED by the Mayor of the City of Berkeley that, pursuant to Health and Safety Code Section 34272(a), Ms. Tiedemann is appointed to serve a four-year term.

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CHRISTIANA TIEDEMANN

EDUCATION:

Reed College, Portland, Oregon, B.A. 1978

Major: Political Science

Honors: Awards for Academic Excellence 1975, 1976, 1977, 1978

Hastings College of the Law, San Francisco, CA, J.D. 1982

Honors: Order of the Coif, Thurston Honors Society,

Admitted to California Bar, December 1982, Bar # 105299

LEGAL EXPERIENCE:

Deputy Attorney General, California Department of Justice, 1989-present:

Performed attorney work in all three legal divisions of the California

Department of Justice–Civil, Criminal and Public Rights. Work has

included extensive state and federal administrative, trial and appellate

work, including (1) jury trials, court trials and complex administrative

hearings; (2) oral argument/written briefing in state and federal appellate

courts; and (3) legal advice to a wide variety of state agencies. Current

client agencies include California State Lands Commission, Department of

Parks and Recreation, Department of Conservation, California Coastal

Commission, San Francisco Bay Conservation and Development

Commission (BCDC), State Coastal Conservancy, Department of Housing

and Community Development and State Mining and Geology Board.

Have been the Supervising Deputy Attorney General for the Oakland Land

Law section since 2010.

Vanderlaan and Associates, Sacramento, CA, 1982-1989:

Representation of public employees and public employee unions in civil and

criminal proceedings. Work included administrative hearing practice,

superior court writ and trial practice, criminal defense and appellate work.

SIGNIFICANT REPORTED APPELLATE DECISIONS:

Friends of Martin’s Beach v. Martin’s Beach LLC (2016) 246 Cal.App. 4th 1312

Sprawldef v. Board of Pilot Commissioners(2014) 226 Cal.App 4th 905 .

Board of Pilot Commissioners et al. v. Superior Court (2013) 218 Cal.App.4th 577

Ocean Harbor House Homeowners Assn. v. California Coastal Comm’n. (2008) 163 Cal.App.4th 215

Attachment 2

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Feduniak v. California Coastal Commission

(2007) 148 Cal.App.4th 1346

Travis v. County of Santa Cruz

(2004) 33 Cal.4th 757

Brown et al. v. Legal Foundation of Washington et al. (2003) 538 US 216

Daniels v. Shasta-Tehama-Trinity Community College District (1989) 212 Cal. App.3d 909

Governing Board v. Commission on Professional Competence

(1985) 171 Cal.App.3d 324

COMMUNITY ACTIVITIES:

Member/Chair of Berkeley Zoning Adjustments Board (appointed by Mayor Tom Bates)

2003-2008

Co-founder and current member of Board of Directors, Tenderloin Housing Clinic, San

Francisco, CA

Member of Board of Directors, East Bay Sanctuary Covenant, Berkeley, CA

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Office of the Mayor




To: Honorable Members of the City Council

From: Mayor Tom Bates

Subject: Re-Appointment of Valerie Agostino and Adolph Moody to the Berkeley Housing Authority Board of Commissioners

RECOMMENDATION:Adopt a Resolution approving the re-appointment of Commissioners Valerie Agostino and Adolph Moody to the Berkeley Housing Authority (BHA) Board of Commissioners for two year terms.

BACKGROUND: On May 22, 2007, the Berkeley City Council established a Berkeley Housing Authority (BHA) Board of Commissioners. State law mandates BHA commissioners, including successors, be appointed by the Mayor and confirmed by the City Council.

Valerie Agostino has served on the BHA Board of commissioners since March 2009 and her current term has expired.

Adolph Moody is one of the two tenant commissioners on the BHA Board and has served on the BHA Board since May 2007

They were both instrumental in the BHA disposition of the 75 units of large family affordable rental housing units in a way that will generate a sufficient revenue stream to cover the much needed physical improvements, provide for responsible management, and keep rents affordable for low-income families in perpetuity.

It is my pleasure to recommend for reappointment Valerie Agostino and Adolph Moody for another four year term on the BHA Board of Commissioners.

FISCAL IMPACTS: None.

ENVIRONMENTAL SUSTAINABILITYConsistent with Berkeley’s Environmental Sustainability Goals and no negative impact.

CONTACT PERSON: Mayor Tom Bates, 981-7100

Attachment:1. Resolution

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4b.23


RE-APPOINTMENT OF COMMISSIONERS VALERIE AGOSTINO AND ADOLPH MOODY TO THE BERKELEY HOUSING AUTHORITY BOARD OF COMMISSIONERS PURSUANT TO HEALTH AND SAFETY CODE SECTION 34270

WHEREAS, the Council of the City of Berkeley, as the governing body of the City of Berkeley, declared itself to the Commissioners of the Berkeley Housing Authority (BHA) and appointed two tenant Commissioners pursuant to Health and Safety Code Section 34290; and

WHEREAS, on May 22, 2007 the Mayor appointed and the City Council by a majority vote confirmed the appointment of 5 Commissioners and 2 tenant Commissioners to the BHA Board pursuant to Health and Safety Code Section 34270; and

WHEREAS, the Mayor of the City of Berkeley is an office filled by election of the people.

NOW THEREFORE, BE IT RESOLVED by the Mayor of the City of Berkeley that Commissioners Valerie Agostino and Adolph Moody be reappointed to serve as a Commissioner of the Berkeley Housing Authority Board.

BE IT FURTHER RESOLVED by the Council of the City of Berkeley that it supports the Mayor’s determination regarding the qualifications of Valerie Agostino and Adolph Moody and hereby confirms the Mayor’s appointment.

BE IT FURTHER RESOLVED by the Mayor of the City of Berkeley that, pursuant to Health and Safety Code Section 34272(a), Ms. Valerie Agostino and Mr. Adolph Moody are re-appointed to serve a four year term.

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Office of the Mayor




To: Honorable Members of the City CouncilFrom: Mayor Tom BatesSubject: Guidelines for $100 Million Infrastructure and Facilities Bond Spending

RECOMMENDATIONAdopt a Resolution establishing guidelines for City Council decisions and public participation in determining spending priorities and allocations for revenue from a $100 million infrastructure and facilities bond.

BACKGROUNDBecause of serious deterioration and disrepair of City facilities and infrastructure, the City Council on May 31, 2016 unanimously adopted Resolution 67,522-N.S. to place a $100 million Infrastructure and Facilities Bond measure on the ballot for the November 8, 2016 election.

To facilitate accountability and citizen review, the bond measure provides that subcommittees of the Public Works Commission and the Parks and Waterfront Commission shall conduct a robust public process to obtain input and, with the City Manager, report annually to the City Council on all bond-funded projects and expenditures, including how they have been distributed equitably throughout the city. The guidelines in the attached resolution are designed to provide direction on spending priorities and public participation in determining how the bond revenues are allocated.

FINANCIAL IMPLICATIONSAdoption of the guidelines would not affect the amount of revenue to be generated by the bonds, though the guidelines could lead to cost savings depending on how they are applied.

ENVIRONMENTAL SUSTAINABILITYThe guidelines call for support of “Green Infrastructure” to help protect the Bay and reduce flooding risks. In addition, by allowing more timely maintenance and repairs, the City can realize substantial future savings that could assist in realizing our climate action and sustainability goals.

CONTACT PERSONMayor Tom Bates 510-981-7100

Attachments:Resolution

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http://www.ci.berkeley.ca.us/mayor

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GUIDELINES FOR CITY COUNCIL DECISIONS AND PUBLIC PARTICIPATION IN DETERMINING SPENDING PRIORITIES AND ALLOCATIONS FOR REVENUE FROM A $100 MILLION INFRASTRUCTURE AND FACILITIES BOND

WHEREAS, the City Council in Resolution No. 67,522-N.S. authorized a bond measure be placed on the November ballot that would allow issuance of $100,000,000 in general obligation bonds to “renovate the City’s aging infrastructure and facilities, including sidewalks, storm drains, parks, streets, senior and recreation centers, and other important City facilities and buildings”; and

WHEREAS, reports presented to the Council in recent years have established the deteriorated condition and rehabilitation needs of parks and public works infrastructure in excess of $300 million; and

WHEREAS, those needs are large and cannot all be addressed at once, but an effort to start repairing and modernizing our infrastructure in a sustainable manner is desperately needed; and

WHEREAS, many of the infrastructure projects in Berkeley date back to the Works Project Administration more than 70 years ago, which funded more than 30 Berkeley projects including road projects, improvements to Berkeley High and other Berkeley schools, the Berkeley Marina, and the Berkeley Rose Garden, as well as Codornices, Frances Albrier, Indian Rock, James Kenney, John Hinkel and Live Oak Parks; and

WHEREAS, the national political parties are promoting infrastructure rehabilitation and the creation of jobs such that having shovel-ready projects in Berkeley will maximize the opportunity to augment local funding with matching State and Federal funds; and

WHEREAS, planning for and implementing “Green Infrastructure” is legally mandated to protect the Bay, and the City has developed a “Watershed Management Plan” that will help meet that requirement as well as reduce flooding hazards in the City; and

WHEREAS, City Council decisions on allocation of bond revenues would be aided by established guidelines for the process of making annual recommendations to the Council for expenditures of bond funds that assure maximum opportunities for public input, enable citizen oversight to ensure that bond funds are used appropriately, provide a resilient Berkeley with improved infrastructure and park facilities that will be able to meet and adapt to future challenges, reflect Berkeley’s changing demographics and needs, and assure equitable distribution of improvements among its citizens.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that if the measure passes, the Council intends to implement the use of bonds with the following measures intended to maximize accountability, fiscal responsibility and public input:

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• There will be citizen oversight for use of the bonds. The body established for that purpose will be authorized to hold necessary public meetings and prepare an annual recommendation to the Council as part of the budgetary process.

• The bonds will be used for long-lasting capital projects with durable technologies. The bonds will be used for direct project costs.

• The allocation of the $100 million bond fund will be determined with public input, a set of evaluation criteria, and consideration for Berkeley’s changing demographics and equity across the City.

• The Public Works Department and the Parks, Recreation and Waterfront Department shall develop program plans to address aging infrastructure improvement needs beyond the $100 million infrastructure bond. Aging infrastructure is a critical national and local issue. The provision of reliable and efficient infrastructure allows the City to operate effectively and for its citizens and businesses to thrive. Those program plans will identify the priority of improvements and funding sources. Incorporated into the planning will be Berkeley’s changing demographics and the challenges of developing green storm-water infrastructure that will meet requirements to protect the Bay and rising sea level. Development of the program plans will involve the affected Commissions and the public.

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40

Office of the Mayor




To: Honorable Members of the City Council

From: Mayor Tom Bates

Subject: Requirement for Rooftop Solar

RECOMMENDATIONRequest that the Energy Commission develop recommendations for a rooftop solar requirement in Berkeley.

BACKGROUNDFour California cities – San Francisco, Santa Monica, Sebastopol and Lancaster – have adopted requirements for solar panels on new construction. The requirements apply to both residential and non-residential buildings, except for Lancaster, where the law applies only to single-family homes.

The requirements vary from city to city. San Francisco’s law, for example, requires either solar photovoltaic or solar water panels on 15% of the total roof area of new multi-unit residential buildings and non-residential buildings of 10 floors or less. For single-family homes, the requirement is 250 square feet. Roof areas shaded by existing buildings would be exempt. The requirement was approved unanimously by the Board of Supervisors on April 19 and takes effect at the beginning of 2017.

Requiring rooftop solar is the logical next step in local and state commitments to curbing global warming. Since July 2014, California’s Title 24 Energy Standards have required that 15% of roof areas be “solar ready” on residential and hotel buildings of 10 floors or less and new non-residential buildings of 3 floors or less, but the existing state standard does not require the actual installation of solar.

The Berkeley Energy Commission is requested to review solar rooftop requirements adopted by other California cities, as well as relevant studies and assessments of such requirements, and to recommend to the Council a citywide requirement adapted to the needs and conditions in Berkeley. The recommendations should be consistent with the California Energy Commission’s Reach Code standards, which govern how local governments may adopt local energy requirements that go beyond those of the state.

Such a requirement would help the City achieve its 50% solar-power goal by 2030. (The City Council on April 28, 2015 unanimously adopted Resolution 67,009-N.S. setting a goal of “obtaining fifty percent of our energy needs from solar power by 2030.”)

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http://www.ci.berkeley.ca.us/mayor

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The requirement would also advance the City’s Climate Action Plan, which serves as a blueprint for a broad range of local programs and activities aimed at reducing GHG emissions on several fronts, including building energy efficiency, land use, recycling and transportation. The plan, adopted by the Council in 2009, set goals of reducing local greenhouse gas emissions by 33% by 2020 and by 80% by 2050.

The present damage caused by global warming – and the far more substantial crises that could result in the future -- are well documented. And while Berkeley and California have been leaders in efforts to address the problem, our success so far has been limited. Berkeley’s rate of reducing greenhouse gases so far does not put us on track to reach our goals. More needs to be done as soon as possible.

FINANCIAL IMPLICATIONSDevelopment and implementation of the requirement would require staff time.

ENVIRONMENTAL SUSTAINABILITYAs noted above, the requirement would help Berkeley achieve its solar power goal and advance our Climate Action Plan.

CONTACT PERSONMayor Tom Bates 510-981-7100

News articles:

KQED News, “San Francisco Requires New Buildings to Install Rooftop Solar”: http://ww2.kqed.org/news/2016/04/20/san-francisco-requires-new-buildings-to-install-solar-panels/

Greentech Media, “What It Really Means to Require Rooftop Solar Panels on All New Buildings”: http://www.greentechmedia.com/articles/read/what-it-really-means-to-require-solar-panels-on-all-new-buildings

Greentech Media, “Lancaster, CA Becomes First US City to Require Solar”: http://www.greentechmedia.com/articles/read/what-it-really-means-to-require-solar-panels-on-all-new-buildings

Renewable Energy World, “Santa Monica Approves Solar Requirement for New Construction”: http://www.renewableenergyworld.com/articles/2016/05/santa-monica-approves-solar-requirement-for-new-construction.html

Clean Technica, “Solar Mandate Approved by Sebastopol, California”: http://cleantechnica.com/2013/05/22/solar-mandate-approved-by-sebastopol-california/

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http://ww2.kqed.org/news/2016/04/20/san-francisco-requires-new-buildings-to-install-solar-panels/

http://ww2.kqed.org/news/2016/04/20/san-francisco-requires-new-buildings-to-install-solar-panels/

http://www.greentechmedia.com/articles/read/what-it-really-means-to-require-solar-panels-on-all-new-buildings




http://www.renewableenergyworld.com/articles/2016/05/santa-monica-approves-solar-requirement-for-new-construction.html

http://www.renewableenergyworld.com/articles/2016/05/santa-monica-approves-solar-requirement-for-new-construction.html

http://cleantechnica.com/2013/05/22/solar-mandate-approved-by-sebastopol-california/

http://cleantechnica.com/2013/05/22/solar-mandate-approved-by-sebastopol-california/

Ad-Hoc Committee on a More Open GovernmentBerkeley City Council



From: Councilmembers Jesse Arreguin, Laurie Capitelli, Susan Wengraf, and Lori Droste

Subject: Ad-Hoc Committee on a More Open Government Recommendations on the Good Government Package

RECOMMENDATION1. Refer to the City Manager to examine the online public calendars for the Mayor

and Councilmembers.

2. Designate the City Attorney’s Office as the sole drafter of a ballot question on an initiative or Council-initiated ballot measure. However, after a ballot question is drafted it is presented to the Council for input and the City Attorney can include Council’s suggested modifications. Once the ballot question is finalized, Council would be required to submit the ballot question to the voters without any further modifications.

BACKGROUNDIn April 2015, the City Council voted to create the Ad-Hoc Committee on a More Open Government to look into the recommendations made in the Good Government Package which was introduced by Councilmember Jesse Arreguin in October 2014, along with other proposals to create a more open government. Over the course of 15 months, the Committee held 13 meetings over a wide range of issues, some of which have previously been introduced and approved by the City Council.

This item moves forward two of the recommendations for consideration from the Good Government Package approved by the Committee:

Public Calendars: that the Mayor and City Councilmembers to maintain apublic calendar of meetings that relate only to City business and require suchmeetings to be posted in advance to the extent practicable but no later than 1week after the meeting occurred, along with a short description of the purposeand attendants of the meeting. The City Clerk will post the public calendars of theMayor and Council on the city’s website.

Independent Ballot Questions: designation of the City Attorney’s Office as thesole drafter of a ballot question on an initiative or Council-initiated ballot measure, and the Council’s role is relegated to approving the ballot question

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Ad-Hoc Committee on a More Open Government CONSENT CALENDARRecommendations on the Good Government Package September 13, 2016

without modification. Council and Public comment would still be part of this process.

Other items in the Package have since been adopted and/or no further action is required.

FINANCIAL IMPLICATIONSStaff time and associated IT costs.

ENVIRONMENTAL SUSTAINABILITYNo adverse effects to the environment.

CONTACT PERSONJesse Arreguin, Chair 510-981-7140Ad-Hoc Committee on a More Open Government

Attachments: 1: Good Government Package Council Item

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Jesse Arreguín Councilmember, District 4

ACTION CALENDAR October 28, 2014

To: Honorable Mayor and Members of the City Council From: Councilmember Arreguin Subject: “Good Government” Package RECOMMENDATION: Refer to the following policies to the Fair Campaign Practices and Open Government Commission for discussion and to make recommendations back to the City Council:

1. Public Calendars: require the Mayor and City Councilmembers to maintain a public calendar of meetings that relate only to City business and require such meetings to be posted in advance to the extent practicable but no later than 1 week after the meeting occurred, along with a short description of the purpose and attendants of the meeting. The City Clerk will post the public calendars of the Mayor and Council on the city’s website.

2. Revolving Door Policy: prohibition of former City staff, for a specified period of time after they left employment with the City, from lobbying current staff on matters relating to City business. Additionally, prohibit Council staff from concurrently holding employment by organizations that regularly lobby City Council.

3. Conflict of Interest Disclosures: require outside firms, when commissioned by the City or City Manager for research report(s), to disclosure any relevant conflicts of interest

4. Contract Disclosures: require specified types of contracts under 50k to be reported to Council. Any increase in a city contract resulting in a contract amount over $50,000 requires Council approval for the increase, even if the initial contract was approved by City Manager action.

5. Political Polling: prohibition on including in city funded community surveys questions on resident favorability of elected officials.

6. Independent Ballot Questions: designation of the City Attorney’s Office as the sole drafter of a ballot question on an initiative or Council-initiated ballot

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rthomsen

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rthomsen

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Martin Luther King Jr. Civic Center Building ● 2180 Milvia Street, 5

th Floor, Berkeley, CA 94704 ● Tel: (510) 981-7140

Fax: (510) 981-7144 ● TDD: (510) 981-6903 ● E-Mail: [email protected] ● Web: www.jessearreguin.com

measure, and the Council’s role is relegated to approving the ballot question without modification.

7. Contribution Prohibitions: prohibit contributions from contractors doing business with the City for specified duration and at a specified threshold, as well as parties to land use applications.

BACKGROUND: Open Government is essential to ensure the integrity and accountability of legislative bodies that “conduct the people’s business.” The following policies are part of an overall package aimed at increasing transparency, accountability, and equal access to public officials who are entrusted with protecting and advancing public interest. Public Calendars The disclosure of the calendars of elected officials provides an additional and crucial layer of transparency that enables the public to better judge the performance of their representatives and the manner in which they conduct the “people’s business.” The City of San Jose, as a part of their “Sunshine Ordinance,” requires that City Councilmembers post a public calendar of their meetings that relate to City business. It is not the intent to disclose personal meetings of Councilmembers that are not related to City business, nor disclose the names of constituents seeking general assistance. Concerns have been previously raised regarding the Council staff time needed to re-post meetings subject to the Public Calendar. This office has undertaken the effort to create of a Public Calendar on Google Calendars to demonstrate the minimal amount of staff time required. It took no more than 5 minutes a week to retroactively repost relevant meetings. If meetings are post concurrently as they are scheduled, that time will significantly less. Revolving Door Policy The City of San Jose also has a “Revolving Door Ordinance” to assure the independence, impartiality and integrity of City officials and staff in making governmental actions and decisions, to prevent such former officials and staff from using their positions with the City for personal gain, and to prevent private for-profit business entities from obtaining a perceived unfair advantage in dealing with the City by hiring former officials and staff. Any ordinance developed in the City of Berkeley should also specify that former employees who are now lobbyists or have significant business in front of the City cannot access the Staff Only area behind Council Chambers, similar to the requirement in the State Legislature that lobbyists are not allowed on the Assembly and Senate Floor. This would prevent former staffers from potentially lobbying Councilmembers and Staff in an area that is not accessible to the public. Also, former staffers should not be able to speak off the record to City Staff during public hearings since it bestows an unfair advantage and circumvents the requirement that city business be done openly.

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Last, City Council staff should not be able to hold employment as a lobbyist while also working for the very legislative body he/she must influence. Conflict of Interest Disclosures When the City of Berkeley solicits impartial reports from outside firms, it is important that any contributor/author of the report disclose pertinent conflicts, such as public positions on local measures that intersect with the report solicited. The failure to report such conflicts undermine the credibility of the information, warranted or not, and by extension, any public policy upon which it is formulated. Contract Disclosures Under existing policy, contracts under $50,000 are allowed to be executed by the City Manager without Council approval or affirmative disclosure. Most contracts relate to the routine administration of the City; however, some types of contracts are of public importance, such as outside attorneys, research by consultants, etc. For example, when Council was considering the initiation of litigation against the City and County Clerk, the City Manager had already retained Remcho Johansen & Purcell LLP, unbeknownst to certain Councilmembers. It was never publicly disclosed and only available on Records Online if one knew to search. While the City Manager should not be impeded to enter into contracts that are necessary for the efficient administration of the City, City Council and the public should be affirmatively informed of certain contracts, in the very least, that otherwise are not known to exist unless one knows to specifically ask. Political Polling Before every major election, the City routinely employs community surveys in order to assess the viability of potential ballot measures submitted by City Council, such as parcel taxes for critical City services. However, there have been instances where the favorability of certain elected officials has been included in the survey. While the intent was to gauge which endorsements would be useful in advancing Council’s interest in maximizing the passage of its ballot measures, it no less results in a publicly-funded polling that is more appropriate for a candidate political campaign. Independent Ballot Questions State law requires that ballot questions must be impartial and accurate. Yet, a ballot question may be drafted by very the legislative body that has a direct interest in the matter. Additionally, individual members of a legislative body may not have the legal qualifications to properly draft a ballot question that meets the requirements of State law, which puts the City in a position of liability. Additionally, case law has established that a ballot question need not be necessarily accurate as much as may not be inaccurate, and that there exists latitude to either

47




minimize or highlight certain aspects of the measure so long as it isn’t factually incorrect. The temptation is too great for any political individual or body to not take advantage of the leeway granted by case law; it is technically legal to highlight the sweet and minimize the bitter, or reverse, so long as it is not factually incorrect or partial. In order to mitigate liability and to ensure public trust that the City conducts elections impartially and without favor, City Council should be prohibited from drafting ballot questions or attempting to influence the drafting of ballot question outside a public meeting. The City Attorney is most qualified to handle such tasks and Council’s role should solely be in adopting the ballot question. All concerns should be noted publicly and considered by the City Attorney if any such concern leads to a more accurate ballot question. Contribution Prohibitions A previous referral limited the prohibition on contractors doing business with the City solely to contractors doing business with the Public Works Department and only over a certain monetary amount. Additionally, the prohibition included parties to the land use applications of large projects before the Zoning Adjustments Board (ZAB) or Council. Ultimately, the proposal was not advanced due to the cost concerns relating to administration and tracking. However, it is possible to advance the prohibition without using staff resources for active enforcement. The competition of political campaigns alone provides ample incentive for self-enforcement, as campaigns already monitor the contributions of competing campaigns. If it is a complaint driven process, there would be no need of monitoring by City Staff. Last, any contributions that were legal at the time of acceptance, but later rendered impermissible through subsequent action, the contribution should be promptly returned when such fact is discovered. In this way, a contribution would not constitute a violation through no fault of the candidate’s own, unless the candidate fails to promptly return the contribution upon discovery. FINANCIAL IMPLICATIONS: Unknown. Some staff time. CONTACT PERSON: Jesse Arreguin, Councilmember, District 4 (510) 981-7140 ATTACHMENTS:

1. “Public Calendars” Council Item. July 16, 2013. 2. Text of San Jose’s Revolving Door Ordinance 3. “Contribution Limits on Contractors Doing Business With the City” Council Item.

March 6, 2012. 4. Staff report on Contractor Contribution Limits. January 22, 2013.

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Jesse Arreguín Councilmember, District 4

Martin Luther King Jr. Civic Center Building ● 2180 Milvia Street, 5th Floor, Berkeley, CA 94704 ● Tel: (510) 981-7140 Fax: (510) 981-7144 ● TDD: (510) 981-6903 ● E-Mail: [email protected] ● Web: www.jessearreguin.com

CONSENT CALENDARJuly 16, 2013

To: Honorable Mayor and Members of the City Council From: Councilmember Jesse Arreguín Subject: Public Calendars RECOMMENDATION Refer to the City Manager and the Open Government Commission (OGC) for study the concept and feasibility of requiring the calendars of City Councilmembers to be made public insofar as they relate to city business, and request that the City Manager and OGC return to Council with a recommendation. BACKGROUND: Open Government is essential to ensure the integrity and accountability of legislative bodies that “conduct the people’s business.” The City of Berkeley is committed to those goals, and is among the few Cities that have so-called “Sunshine Ordinances” (local ordinances that expand California’s open government laws, such as the Public Records Act and the Brown Act). The City of San Jose has a comparable “Sunshine Ordinance,” though it includes a simple, yet useful “public calendar” component that requires certain officials to publish their calendars online. The public calendars of San Jose officials only include City-related appointments, regular City Council meetings, public events, speaking engagements, meeting with developers, consultants, lobbyists, and meetings with subcommittees. Calendar entries must include the names, titles and affiliated organization(s), and a general statement of the issue of applicable appointments. Additionally, the public calendar does provide necessary exemptions for the following: (1) personal appointments, (2) information protected by the attorney-client privilege (3) Information about attorney work product (4) Information about City staff recruitment (5) Information about a personnel issue (6) Information about corporate recruiting and retention, (7) Information about criminal investigations and security, (8) Information about whistle-blowers, (9) Information about those who may fear retaliation, and (10) Information that is otherwise prohibited from disclosure. It is not the intent of this referral to require the publishing of prospective schedules, but rather after-the-fact reporting of pertinent events and meetings of elected officials.

Attachment 1

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The disclosure of the calendars of elected officials provides an additional and crucial layer of transparency that enables the public to better judge the performance of their representatives and the manner in which they conduct the “people’s business.” FINANCIAL IMPLICATIONS: Unknown; some staff time required. CONTACT PERSON: Jesse Arreguin, Councilmember, District 4 981-7140 Attachments:

1. “Ex-Santa Clara County Supervisor Shirakawa's scandal reveals lack of basic sunshine provisions” San Jose Mercury News May, 2013.

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RD:NKS Ord. No. 27271 10/26/2004

ORDINANCE NO. 27271

AN ORDINANCE OF THE CITY OF SAN JOSE AMENDING CHAPTER 12.10 OF TITLE 12 OF THE SAN JOSE MUNICIPAL CODE TO REVISE THE CITY OF SAN JOSE REVOLVING DOOR ORDINANCE

BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SAN JOSE:

Chapter 12.10 of Title 12 of the San José Municipal Code is amended to be numbered,

entitled, and to read as follows:

CHAPTER 12.10

REVOLVING DOOR RESTRICTIONS

12.10.010 Purpose

The purposes of this Chapter are:

A. To assure the independence, impartiality and integrity of City and Agency

officials and designated employees in making governmental actions and

decisions.

B. To prevent such former officials and designated employees from using their

positions with the City or Agency for personal gain.

C. To prevent private for-profit business entities from obtaining a perceived unfair

advantage in dealing with the City or Agency by hiring former officials and

designated employees.

T-1996.002\ 27271 1

Attachment 2

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RD:NKS Ord. No. 27271 10/26/2004

12.10.020 Definitions

For purposes of this Chapter, the terms below shall have the following meaning:

A. “Agency official” shall mean the chairperson and members of the Board of

Directors of the Redevelopment Agency of the City of San José.

B. “City official” shall mean the Mayor and City Councilmembers.

C. “Commission” shall mean any body created by the City Council or Agency Board

whose members are required to file statements of economic interest pursuant to

the Fair Political Practices Commission.

D. “Employee” shall have the same meaning as set out in Title 20 of the Code of

Federal Regulations § 404.1007(b).

E. “Nonprofit organization” shall mean an entity which would qualify as such under

the Federal Internal Revenue Code and has engaged in programs or projects

which have received financial or other formal support from the City Council or

Redevelopment Agency board within the past five years.

F. “Transitional services” shall mean services involving technical or specialized

knowledge required to complete a project or to provide temporary consulting

services to the City or the Agency.

G. “Work” shall mean any activity for which compensation is received from any

source, including compensation received as an independent contractor. Work

includes the supervision or direction of others performing work, except as

provided in Section 12.10.050. Work for the City or Agency also includes any

action of any sort whatsoever taken in one's official capacity. Service by a City or

Agency official or designated employee on any type of board, committee or

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similar body as a representative of the City or Agency is deemed to be work for

the City or Agency.

12.10.030 Prohibitions

For one (1) year immediately following the termination of City or Agency office or

employment, no former City or Agency official or designated employee shall:

A. Work on any legislative or administrative matter on which the official or employee

worked on behalf of the City or Agency during the twelve (12) months prior to

termination of service, or which was within the former City or Agency official’s or

designated employee’s area of job responsibility. For example, “work on any

legislative or administrative matter” includes providing advice or recommending

any action with regard to a City or Agency legislative or administrative matter

such as a land use, development or public works project. Legislative matters

include City Council, Agency Board and City board or commission actions related

to ordinances, resolutions, agreements, permits or licenses.

B. Represent anyone else, whether or not for compensation, before the City

Council, Redevelopment Agency Board, any commission thereof, or any staff of

the City or Agency.

C. Receive any gift or payment which would be prohibited under Part 5 of this

Chapter from any person who was, in any way, involved in or affected by the

work of the official or employee during the twelve (12) months prior to the

termination of service.

12.10.040 Prohibition for Former Commission Members

A former member of a commission shall not represent anyone else, whether or not for

compensation, before the commission on which the former member served, for a period

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of one (1) year immediately following the termination of service on that commission. No

other provisions of this Chapter shall apply to persons serving on a commission who are

not otherwise City or Agency officials or designated employees.

12.10.050 Exceptions

The following work shall not be subject to the prohibitions of Section 12.10.030:

A. As an employee or volunteer of a nonprofit organization, as defined in Section

12.10.020.E.;

B. As an employee of a government entity;

C. As an independent contractor of the City or Agency where it has been

determined that it is in the best interest of the City or Agency to retain the former

official or employee to provide transitional services. Such determination shall be

made by the person or body authorized to enter into such a contract. In such

event, the City or Agency shall contract directly with the former official or

employee. The rate of compensation for such services shall not exceed the

former official’s or employee’s rate of pay, including benefits, at the time City or

Agency service terminated.

12.10.060 Applicability

A. The provisions of this Chapter shall not apply to prevent a former City or Agency

official or designated employee from testifying as a percipient witness in any

legal proceeding.

B. The provisions of this Chapter shall not apply to prevent a former City or Agency

officer or designated employee from working as a supervisor of a person or

persons performing work that would be prohibited by this Chapter, so long as the

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RD:NKS Ord. No. 27271 10/26/2004

supervisor is screened from any personal participation in the work and receives

no part of the fee therefrom.

12.10.070 Waiver

The City Council or Redevelopment Agency Board of Directors may waive the

prohibitions of Section 12.10.030, upon full disclosure of the facts surrounding the

proposed activity, if the Council or Board finds that such waiver is in the best interest of

the City or Agency and that such waiver is not inconsistent with the purposes of this

Chapter as set forth in Section 12.10.010.

12.10.080 Enforcement

A. The City Attorney may conduct inquiries or investigate complaints of violations of

this Chapter. The City Attorney may seek judicial or injunctive relief in the courts

to enjoin violations of or to compel compliance with the provisions of this

Chapter.

B. A City or Agency official, designated employee or person who is subject to the

provisions of this Chapter may request a formal written opinion from the City

Attorney and may reasonably rely on such advice in order to comply with the

requirements of this Chapter. Before such opinion is rendered, such official or

employee shall fully cooperate with the City Attorney in disclosing facts and

information in order to prepare the formal opinion.

C. Any person may file a complaint with the City Clerk alleging a violation of this

Chapter with the Elections Commission.

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RD:NKS Ord. No. 27271 10/26/2004

D. The City Attorney may put persons on notice of a potential violation of the

requirements of this Chapter, whether or not a complaint is filed with the

Elections Commission.

12.10.090 Penalties

Violations of this Chapter may result in civil penalties of up to Five Thousand Dollars

($5,000) for each violation. The City of San Jose or the Redevelopment Agency shall

be entitled to recover from any former City or Agency official or designated employee

the monetary value of any compensation or thing of value provided to such person in

violation of the provisions of this Chapter.

PASSED FOR PUBLICATION of title this 26th day of October, 2004, by the following vote:

AYES: CAMPOS, CHAVEZ, CHIRCO, CORTESE, DANDO, GREGORY, LeZOTTE, REED, WILLIAMS, YEAGER; GONZALES

NOES: NONE

ABSENT: NONE

DISQUALIFIED: NONE

RON GONZALESMayor

ATTEST:

LEE PRICE, CMC City Clerk

T-1996.002\ 27271 656

�Jesse Arreguín Councilmember, District 4

2180 Milvia Street, 5th Floor, Berkeley, CA 94704 � Tel: (510) 981-7140 � TDD: (510) 981-6903 � Fax: (510) 981-7144 E-Mail: [email protected]

CONSENT CALENDAR March 6, 2012

To: Honorable Mayor and Members of the City Council From: Councilmember Jesse Arreguín Subject: Contribution Limits on Contractors doing Business with the City RECOMMENDATION: Refer to the Fair Campaign Practices Commission (FCPC) for consideration the issue of prohibiting contributions by contractors doing business with the City and the Berkeley Unified School District. BACKGROUND: San Francisco’s election law prohibits any person or entity with a contract or prospective contract with the City from making contributions to candidates for public office in order to prevent the possibility of corruption, actual or perceived. The contribution limitations are in line with Berkeley’s existing prohibition on contributions by certain organization and business entities. Consideration of a similar law in Berkeley should be done so in a manner consistent with existing law, and with awareness of application and possible unintended consequences (See Chronicle article). The FCPC may also want to consider the possibility of adding to the prohibition individuals and entities party to a land use case before the City due to the fact that the outcome may affect their general or financial well-being. FINANCIAL IMPLICATIONS: Unknown. CONTACT PERSON: Jesse Arreguín, Councilmember, District 4 981-7140 Attachments:

1. San Francisco Campaign and Governmental Conduct Code Section 1.126 2. San Francisco Chronicle, “SF Contractor Donation Ban Proving Cumbersome,”

Oct 2011

09Attachment 3

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SEC. 1.126. CONTRIBUTION LIMITS--CONTRACTORS DOING BUSINESS WITH THE CITY, THE UNIFIED SCHOOL DISTRICT AND THE COMMUNITY COLLEGE DISTRICT. (a) DEFINITIONS. For purposes of this section, the following words and phrases shall mean: (1) "Person who contracts with" includes any party or prospective party to a contract, as well any member of that party's board of directors, its chairperson, chief executive officer, chief financial officer, chief operating officer, any person with an ownership interest of more than 20 percent in the party, any subcontractor listed in a bid or contract, and any committee, as defined by this Chapter that is sponsored or controlled by the party, provided that the provisions of Section 1.114 of this Chapter governing aggregation of affiliated entity contributions shall apply only to the party or prospective party to the contract. (2) "Contract" means any agreement or contract, including any amendment or modification to an agreement or contract, with the City and County of San Francisco, a state agency on whose board an appointee of a City elective officer serves, the San Francisco Unified School District, or the San Francisco Community College District for: (A) the rendition of personal services, (B) the furnishing of any material, supplies or equipment, (C) the sale or lease of any land or building, or (D) a grant, loan or loan guarantee. (3) "Board on which an individual serves" means the board to which the officer was elected and any other board on which the elected officer serves. (b) Prohibition on contribution. No person who contracts with the City and County of San Francisco, a state agency on whose board an appointee of a City elective officer serves, the San Francisco Unified School District or the San Francisco Community College District, (1) Shall make any contribution to: (A) An individual holding a City elective office if the contract must be approved by such individual, the board on which that individual serves or a state agency on whose board on which an appointee of that individual serves; (B) A candidate for the office held by such individual; or (C) A committee controlled by such individual or candidate (2) Whenever the agreement or contract has a total anticipated or actual value of $50,000.00 or more, or a combination or series of such agreements or contracts approved by that same individual or board have a value of $50,000.00 or more in a fiscal year of the City and County (3) At any time from the commencement of negotiations for such contract until. (A) The termination of negotiations for such contract; or (B) Six months have elapsed from the date the contract is approved. (c) Prohibition on receipt of contribution. No individual holding City elective office or committee controlled by such an individual shall solicit or accept any contribution prohibited by subsection (b) at any time from the formal submission of the contract to the individual until the termination of negotiations for the contract or six months have elapsed from the date the contract is approved. For the purpose of this subsection, a contract is formally submitted to the Board of Supervisors at the time of the introduction of a resolution to approve the contract. (d) Forfeiture of contribution. In addition to any other penalty, each committee that receives a contribution prohibited by subsection (c) shall pay promptly the amount received or deposited to the City and County of San Francisco and deliver the payment to the Ethics Commission for deposit in the General Fund of the City and County; provided that the Commission may provide for the waiver or reduction of the forfeiture. (e) Notification.

Attachment 1

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�

�

(1) Prospective Parties to Contracts. Any prospective party to a contract with the City and County of San Francisco, a state agency on whose board an appointee of a City elective officer serves, the San Francisco Unified School District or the San Francisco Community College District shall inform each person described in subsection (a)(1) of the prohibition in subsection (b) by the commencement of negotiations for such contract. (2) Individuals Who Hold City Elective Office. Every individual who holds a City elective office shall, within five business days of the approval of a contract by the officer, a board on which the officer sits or a board of a state agency on which an appointee of the officer sits, notify the Ethics Commission, on a form adopted by the Commission, of each contract approved by the individual, the board on which the individual serves or the board of a state agency on which an appointee of the officer sits. An individual who holds a City elective office need not file the form required by this subsection if the clerk or secretary of a board on which the individual serves or a board of a state agency on which an appointee of the officer serves has filed the form on behalf of the board. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000; amended by Proposition O, 11/7/2000; Ord. 141-03, File No. 030034, App. 6/27/2003; Ord. 228-06, File No. 060501, App. 9/14/2006; amended by Proposition H, June 3, 2008) (Derivation: Former Administrative Code Section 16.510-2; added by Proposition N, 11/7/95) �

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S.F. contractor donation ban proving cumbersome John Coté, Chronicle Staff WriterMonday, October 17, 2011

San Francisco Mayor Ed Lee received five apparently illegal campaign contributions from parties with city contracts he approved, including four subcontractors on a $150 million contract to an engineering design firm working on some of the city's biggest infrastructure projects, campaign finance records show.

He's not the only one.

At least eight candidates vying to be elected mayor on Nov. 8 have received donations that appear to violate the city's restrictions on contributions by contractors, a Chronicle analysis of campaign finance records shows.

San Francisco for years has been at the national vanguard in campaign finance reform. But its contractor ban, designed to prevent pay-to-play politics, is so cumbersome that some donors are unaware that they are violating the law, donors and campaign staff say. For example, the ban prevents volunteers on the boards of directors at nonprofits awarded city grants of $50,000 or more from giving to officeholders who approved the grant or candidates who may hold the office.

Campaigns said that even elaborate screening systems sometimes fail to catch illegal money, and the director of the city's Ethics Commission said his office is too overwhelmed to ensure compliance.

"This is unworkable," said former Supervisor Bevan Dufty, a mayoral candidate.

Dufty should know. He received at least $2,800 in questionable contributions from 13 donors, The Chronicle found. Almost all were affiliated with nonprofits that have received city grants or contracts. Some gave after Dufty was out of office.

Attachment 2

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�

�

The prohibition, in such instances, is on the donor, not the candidate receiving the money. The donations represent less than 1 percent of Dufty's roughly 3,000 donors. "I never did that well in school," Dufty said. "If you gave me a 99 percent, I'd feel like I aced my exam. Here, you have to be 100 percent."

Many of the major candidates in the field of 16 were imperfect. City Attorney Dennis Herrera had at least $4,000 in questionable donations, most tied to nonprofits. Venture capitalist Joanna Rees had $2,250. Supervisors John Avalos had almost $2,000. State Sen. Leland Yee,Supervisor David Chiu and Assessor-Recorder Phil Ting all had at least one questionable donation.

Compounding the problem is that all of those candidates have received public financing, and some have gotten matching funds from taxpayers for donations that appear invalid.

The campaigns in question said they were reviewing the donations. Some checks have been returned.

Herrera's camp also pointed to late contract disclosure filings from Lee's office.

"No one has any idea who shouldn't donate," Herrera campaign spokesman Matt Dorsey said.

Questionable donations

Lee, who is not accepting public financing, appears to be the only candidate who received potentially illegal donations in this race linked to contracts he directly approved.

Lee had five improper donations totaling $2,100, four of them coming from subcontractors on a sewer system project awarded to an AECOM joint venture Aug. 1, city documents show.

AECOM also has a $147 million contract on the Central Subway, a project that Herrera and others have called a potential boondoggle. Lee dined in February with then-AECOM executive Jack Baylis, Chinatown

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powerbroker Rose Pak and former Mayor Willie Brown. Lee's opponents contend he would be a front man for Brown cronyism if elected, an assertion Lee rejects.

After a Chronicle inquiry, Lee's campaign returned those four contributions, a fifth from a city nonprofit grantee that hadn't been screened yet because it was donated online at the reporting deadline, and two others that had been questioned.

"It really was an oversight that we corrected," Lee campaign spokesman Tony Winnicker said.

All but one of those donations came from a single contract that didn't get entered into the campaign's database, Winnicker said.

He accused other campaigns of deliberately accepting improper donations and using the money to get taxpayer matching funds.

"It's a copout to say, 'Our donors didn't know,' " Winnicker said. "The bottom line is the contributions are illegal. If you have an ethical bone in your body, you'd return them."

Lee's camp has already returned more than 50 donations for various reasons, including some under investigation by the district attorney for potential money laundering.

The fact that much of the field is having reporting problems highlights the complex nature of San Francisco's campaign finance laws, including the contractor ban. Voters first approved the ban in 1995, and it has been modified at least five times.

The law prohibits contractors from donating to the officeholder who approves the contract from the start of negotiations until six months after the contract is approved.

It has been expanded to cover grants and loans from the city and to apply to top executives and boards of directors.

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�

�

It bars officeholders from receiving the contributions, but not candidates for that office. Donors, though, are prohibited from giving to either.

Unexpected impact

The rules mean thousands of San Franciscans who serve as volunteers on boards of charitable groups cannot donate to candidates for mayor, according to John St. Croix, executive director of the city's Ethics Commission.

"We did not realize how many San Franciscans are covered by the contribution ban," St. Croix wrote in a report on the problem a year ago.

More than 67 percent of the contracts and grants reported under the ban went to nonprofits, according to figures from the first seven months of 2010 cited in the report. St. Croix, in an interview, said little had changed.

"I've got two books of these, thicker than Yellow Pages," he said of the contract disclosure forms. That's part of the reason his office has never compared the contract forms with campaign filings.

"I don't have enough staff to cross-reference all of those forms," St. Croix said.

Campaigns say it's part of the reason they're having difficulty weeding out donors.

"The fact is that there's no searchable database or other foolproof way for us to examine whether each contributor is involved with a nonprofit that is doing business with the city," Chiu campaign spokesman Addisu Demissie said.

St. Croix a year ago proposed legislation that, among other things, would have exempted nonprofits from the contractor ban, but it was never taken up by the Board of Supervisors.

"Well, maybe they'll take another look at it now," said Eric Potashner, a lobbyist at Platinum Advisors who volunteers on the board of Telegraph

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Hill Neighborhood Center and donated to Herrera and Avalos within six months of the nonprofit receiving a city grant. Potashner said he didn't realize the ban included volunteers on nonprofit boards.

"This is a neighborhood center for seniors and kids," Potashner said. "The whole board is volunteers. They want to give back to the community a little bit. I think we're getting caught up in a technicality that really wasn't meant for us."

E-mail John Coté at [email protected].

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Office of the City Manager

2180 Milvia Street, Berkeley, CA 94704 � Tel: (510) 981-7000 � TDD: (510) 981-6903 � Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

INFORMATION CALENDAR January 22, 2013


From: Christine Daniel, City Manager

Submitted by: Mark Numainville, Acting City Clerk

Subject: Council Referral: Prohibit Contributions from Public Works Contractors and Parties to Land Use Applications

INTRODUCTION This report is in response to the referral from the City Council on July 17, 2012.

CURRENT SITUATION AND ITS EFFECTS The Berkeley Election Reform Act (BERA) limits contributions to candidates to $250 and limits the source of those contributions to exclude businesses, non-profit organizations and labor unions.

BACKGROUND The referral proposes further limiting contributions to candidates by prohibiting contributions from certain Public Works contractors that do business with the City and from parties to land use applications pending before the Zoning Adjustments Board (ZAB) or City Council.

Contributions to general purpose committees and ballot measure committees are not currently limited by source or amount. The referred policy would not change these regulations.

The City Council referral from July 17, 2012 requested that the scope of the land use prohibition be limited to large projects, that staff provide information on the costs for administration and tracking, and that staff determine the frequency to which these types of contributions generally occur.

To ascertain the extent to which the new policy would further limit contributions, staff used data from the 2010 election, the most recent election for which we have electronic data. For the 2010 General Election, 15 of 20 candidate controlled committees used the City’s electronic filing system for campaign statements. The e-filing system provides for the electronic download of contribution data from e-filed campaign statements.

Staff then ran reports from the FUND$ system to capture the contract data for the calendar year 2010. The results were manually filtered to produce the report for Public Works contracts of $300,000 or more.

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Attachment 4

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Council Referral: Prohibit Contributions from Public Works INFORMATION CALENDAR Contractors and Parties to Land Use Applications January 22, 2013

Page 2

For the land use provision, staff researched the active projects from 2010 and created a spreadsheet for comparison to the contributor data. The scope was limited to the applicant, owner, or appellant for projects in one of four categories, 1) Residential projects of 10 - 49 units, 2) Projects with 10,000 to 49,000 sq. ft. of industrial or commercial space, 3) Residential projects of 50 or more units, 4) Projects with 50,000 or more sq. feet of commercial or industrial space.

The data set used for the analysis consisted of the following:

Number of contributions downloaded: 1,264

Number of Public Works contracts over $300,000: 17

Number of land use projects (all categories): 8

Cross referencing the data from the contracts and land use projects with the contributor data resulted in the following:

Number of contributions from a prohibited Public Works contractor: 1

Number of contributions from a prohibited party to a land use project: 5

The five contributions in the land use category were from two appellants to a land use application while it was pending before Council.

To produce the list of prohibited contractors, staff must run a report of all contractors and then manually sort by contract amount and by department. Staff must also select out contract amendments to ensure that the contract amount is accurate for the purposes of the $300,000 threshold. In order to ensure that campaign committees have up to date information on prohibited sources, it is anticipated that staff would need to produce this report weekly for much of the election cycle and perhaps daily in the final 3-6 month of the election cycle. This would require significant staff hours.

The report run by the contract management system does not have the ability to include subcontractors. Subcontractor names are not captured in the contracting process. Further, it is unclear if contributions would be prohibited from any employee of the contracting company, or just those with an ownership share.

In the process of sorting the data, staff identified a total of 54 contracts that exceed $300,000 (including the 17 public works contracts).

The total staff time required to create the reports and distill the data for the analysis in this report was approximately 12 hours.

For both prohibitions (land use and contracts) the duration of the prohibition should be considered. For contracts, the period may include the entire life of the contract, or just

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Council Referral: Prohibit Contributions from Public Works INFORMATION CALENDAR Contractors and Parties to Land Use Applications January 22, 2013

Page 3

the RFP process through Council approval. For land use matters, the prohibition period is somewhat uncertain as a project may advance through the system during an election cycle, yet the parties to the project will not know if the project will be appealed at a later date. The contribution may not be prohibited when it is made, but may become prohibited later. One option would be to prohibit all applicants/appellants/owners from contributing until final approval of the project.

POSSIBLE FUTURE ACTION Refer to FCPC for consideration and possible amendment to the BERA.

FISCAL IMPACTS OF POSSIBLE FUTURE ACTION Significant staff time dedicated to creating lists of prohibited contributors, and conducting the review and enforcement of the new requirement.

CONTACT PERSON Mark Numainville, Acting City Clerk, 981-6900

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Ad-Hoc Committee on a More Open GovernmentBerkeley City Council



From: Councilmembers Jesse Arreguin, Laurie Capitelli, Susan Wengraf, and Lori Droste

Subject: Worksession on Improving City Council Meeting Process

RECOMMENDATIONRefer to the Agenda Committee to schedule a worksession in early 2017 for the Ad-Hoc Committee on a More Open Government to present its findings on improving City Council meeting agenda setting and process.

BACKGROUNDCity Council meetings in recent months, with the April 5, 2016 meeting as the most problematic example, have seen a number of challenges in managing the agenda and public process. This has created a backlog of items and prevented Council from being able to vote on items in a timely manner. In addition, these challenges have limited the amount of time Council has to discuss and vote on important issues.

To improve the effectiveness of Council meetings, the Ad-Hoc Committee on a More Open Government has discussed several proposals to improve Council meeting process, based on best practices in other cities. The Committee was established by the Council in March 2015 to recommend proposals to improve government transparency and public process. The Committee sunset on July 20, 2016.

The specific proposals discussed and suggested by the Committee for Council discussion include:

Require speaker cards for comment on an action item, excluding public hearings. Conduct a pilot of limiting public comment on action items excluding public

hearings to 20 minutes, after which time the Council could vote to extend public comment for an additional 20-minute period. Limit Council debate on items to 20 minutes, which could also be extended by a majority vote.

Limit number of council items that can be submitted by each councilmember per meeting or per year (Councilmember Arreguin opposed this proposal but allowed it to be included in the report for Council discussion).

Determine at the beginning of the meeting, based on the number of speaker cards and the length of the agenda, which items to continue and announce to the public which items will be continued to a future meeting.

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ldharris

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4b.27

Worksession on Improving City Council Meeting Process CONSENT CALENDARSeptember 13, 2016

Encourage the Agenda Committee to more effectively manage the structure and length of the agenda.

Look into providing time estimates for when a Council item will be brought up.

Additionally, Livable Berkeley presented recommendations on how to improve the Council public comment process (Attachment 1). Given the multitude of possible reforms and the importance of gaining Council comments on such changes, scheduling a worksession is an appropriate step in moving forward with developing policies and practices to improve our Council meeting process.

FINANCIAL IMPLICATIONSNone.


CONTACT PERSONJesse Arreguin, Chair 510-981-7140Ad-Hoc Committee on a More Open Government

Attachment: 1. Livable Berkeley Recommendations for Public Comment Reform

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Page 1 of 1

July 14, 2016

1442A Walnut Street #202, Berkeley, California 94709 [email protected] www.livableberkeley.org 510.510.7033

Adopt a standard time limit for public comment on agenda Action Items that are

not quasi-judicial or the primary subject of a Special Meeting:

Consider setting 20 minutes as the standard time limit.

Give the chair discretion to allow one 10-minute extension without a vote.

Require a second extension to receive a two-thirds vote of the Council, with

subsequent extensions requiring increasing proportions of Council support.

(Subsequent extensions may be of any length of time, provided such extensions

can garner the required support.)

Do not adopt time limits for quasi-judicial decisions, since any time limits on

public testimony for these items could be considered a breach of due process.

Generally retain current procedure for public comment on the Consent Calendar:

Existing four-speaker threshold for automatic removal from Consent Calendar

already serves to limit comment on Consent items.

o Chair should make clear to the audience that once threshold is reached,

a Consent Item will move from Consent to Action, and no further public

comment will be taken on the Item until it is heard during Action.

Disallowing public comment on the Consent Calendar would likely constitute a

violation of the Brown Act.

Consider adopting a standard 1-minute per person time limit.

Retain period for comment on non-agenda items at beginning of meeting:

Continue to limit the overall length of time / number of speakers.

Keep at the beginning of meetings to ensure fairness to those who wish to

present issues that the City Council may have been unaware of or ignored.

Adopt procedure for hard-copy and digital submittal of speaker cards:

Require speaker cards for Action and non-agenda items, but not Consent items.

Allow submittal of hard-copy speaker cards up until item is heard.

Allow digital submittal of speaker cards up until 4:30 PM, day of meeting.

o Gives City Staff time to print digitally submitted cards, so they could be

intermingled with hard-copy cards to ensure a fair and random selection.

Do not attempt to balance pro/con speakers:

o Would violate requirement that limits on comment be content neutral.

o Some speakers may not fall neatly into pro/con categories.

Limit Council Consent items to two per Council Member, per meeting:

Allow Council members to submit additional Council Consent items, if they can

find a co-sponsor to offer one of their Council Consent item slots.

Apply limit of two Council Consent items per Council Member to all types of

Council Consent items, whether “substantive” or not.

TO: Berkeley City Council Open Government Subcommittee

RE: Recommendations for City Council Public Comment Reform

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http://www.livableberkeley.org/

rthomsen

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Attachment 1

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Berkeley City Council

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7140 ● TDD: (510) 981-6903 ● Fax: (510) 981-7144E-Mail: [email protected]



From: Councilmembers Jesse Arreguín, Susan Wengraf, and Lori Droste

Subject: Support for Providing Medication Abortion Services at the Tang Center

RECOMMENDATIONSend a letter to UC Berkeley Chancellor Nicholas Dirks urging University Health Services to provide access to medication abortion services at the Tang Center.

BACKGROUNDA 2008 study found that women between the ages of 18-24 account for 44% of abortions in the United States, and 24% for women between 25-29. An estimated one in four women will have an abortion by age 30. More women are choosing to attend higher education than ever before, which causes many to choose to delay or forgo childbearing. Women with some college education were the most likely education level group to get an abortion, showing the importance of access to services for those currently attending colleges and universities.

Abortion services were available at UC Berkeley’s University Health Services (UHS) until the 1980s, when the provider left without being replaced. Currently, the Tang Center does have the capacity to provide medication abortion. In March 2016, the Associated Students of the University of California (ASUC) unanimously adopted a resolution in support of implementing medication abortion services by UHS (Attachment 2). The resolution points out that without services at UHS, students seeking an abortion face financial, time, and travel constraints that can be harmful to both academic performance and mental health. The Graduate Assembly passed a similar bill, and the Daily Cal wrote an editorial in April in support of the proposal. With potentially thousands of students needing abortion services, access to such services is necessary and should be provided by UHS.

The City Council has taken numerous stances in support of pro-choice positions, including an annual proclamation on the anniversary of the Roe v. Wade decision each January. As written in this year’s Council item reaffirming the City of Berkeley’s commitment to Roe v. Wade, the City has “expressed continued support for access to all reproductive healthcare services”. By supporting easy access for services for students, the City will reaffirm its commitment of supporting reproductive health.

FINANCIAL IMPLICATIONSNone

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ldharris

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4b.28

Support for Providing Medication Abortion Services at the Tang Center CONSENT CALENDARSeptember 13, 2016

Page 2


CONTACT PERSONJesse Arreguin, Councilmember, District 4 510-981-7140

Attachments: 1: Letter2: ASUC Senate Resolution 2015/2016-069

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Dear Chancellor Dirks,

The City of Berkeley has long taken a position in promoting the freedom and accessibility of a woman’s right to choose. In recent years, we have witnessed legislatures in multiple states and even on a federal level attempt to undermine the rights granted in the 1973 Roe V. Wade ruling. We believe that the University has an opportunity to go against these trends by making it more accessible for women to get access to abortion services.

In March 2016, both the ASUC Senate and the Graduate Assembly passed bills urging University Health Services (UHS) to provide medication abortions at the Tang Center. Medication abortion is a simple, non-invasive way of terminating a pregnancy during the early stages. Unfortunately, as such services are not currently provided by UHS, women are instead referred to a medical clinic and must go through bureaucratic hoops. As medical abortions are not recommended after ten weeks, having to go through a potentially lengthy referral process could result in having to take a more costly, time-consuming process. This makes it difficult for students to balance a full load of classes with their medical needs.

As more women are choosing to attend colleges and universities, it is important that those institutions meet the health needs of those students. One on four women will have an abortion by age 30. With over 14,000 undergraduate and almost 5,000 graduate students at UC Berkeley being women, it is likely that thousands will need such services during their time at the University.

We urge the University to provide medication abortion services at the Tang Center. Such services are feasible for UHS to provide, and can help many students get the health services they need. This will also help fulfill the mission statement of the Tang Center to provide comprehensive health services to students. We join the ASUC, Graduate Assembly, and many students in asking you to make this a reality.

Sincerely,


Attachment 1

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Senate Resolution

15/16069

Senate Resolution No. 2015/2016069

In Support of Implementation of Medication Abortion Services at Tang, University Health Services (UHS)

Primary Sponsor

Aanchal Chugh (ASUC Senator)

Cosponsors Adiba Khan, Meghan Warner, Tayler Hughes, Susannah Champlin (Co‐directors of Students United for Reproductive Justice), Dr. Ndola Prata, Dr. Malcolm Potts (Current Director, Former Director of UC Berkeley School of Public Health, Bixby Center for Population, Health, and Sustainability), Sumayyah Din (ASUC Senator), Zoe Brouns (ASUC Senator), Will Morrow (ASUC Senator), Andre C. Luu (ASUC Senator), Boomer Vicente (ASUC Senator), Alana Banks (ASUC Senator) WHEREAS , The Guttmacher Institute found that in 2008, women aged 18‐24 account for 44% of all abortions in the United States, and women aged 25‐29 account for 24%. Many of these women choose abortion in order to continue their education with little disruption ; 1and, WHEREAS, As of Fall 2015, there is a total of 38,204 students. Out of 38,204, there are 27,496 undergraduates and 4,923 graduate students. Women represent 14,310 undergraduate (52.1%) and 4,923 (46%) graduate students ; and, 2

WHEREAS, Considering 1 in 4 women will have an abortion by age 30, thousands of students seeking an abortion would be turned away from UHS 1 and,

WHEREAS , According to Tang, a core value is “We promote equity and inclusion and believe everyone should receive the highest quality care“. “UHS is a responsive, integrated and inclusive organization that: Delivers the highest quality health and counseling care, specializing in meeting the needs of students…Promotes healthy personal choices and an environment that facilitates health and well‐being, Provides expertise in crisis planning and response to minimize disruption and support recovery for individuals and the campus and

1 https://www.guttmacher.org/pubs/US‐Abortion‐Patients.pdf 2 http://opa.berkeley.edu/uc‐berkeley‐fall‐enrollment‐data

ASUC Senate Page 1 of 3

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https://www.guttmacher.org/pubs/US-Abortion-Patients.pdf

http://opa.berkeley.edu/uc-berkeley-fall-enrollment-data

rthomsen

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Attachment 2

Senate Resolution

15/16069

ultimately “Services are designed to minimize the impact of illness, emotional distress and injury on studies and work” ; and, 3

WHEREAS , According to the Head Health Educator of UHS’ Sexual Health Education Program (SHEP) , abortion services were available in the 1980s at UHS and stopped when 4

the provider left and no other clinician was trained in providing services. Currently, Tang does have staff trained/skilled abortion providers and is able to provide medication abortion; and,

THEREFORE BE IT RESOLVED, That the Associated Students of the University of California urge Tang, University Health Services, to implement medication abortion services and ful. ill the needs and provide quality healthcare services to students seeking medication abortion for the following purposes:

1. There is an unmet need of medication abortion to students and UHS has the necessary resources to provide medication abortion.

2. When medication abortion is not available at UHS, students who are seeking an abortion face � inancial, time, and travel constraint burdens that create negative impacts on academic performance and mental health.

3. UHS is a health center dedicated to meeting the health needs of students in order for students to be able to upkeep their academic well‐being. Abortion is a common health‐care service and access to abortion is necessary and relevant in student life.

THEREFORE BE IT RESOLVED, that the Associated Students of the University of California recognizes that UC Berkeley students are mostly in the age range of 18‐24 and deserve easily accessible legal, safe, medical abortions.

3 http://www.uhs.berkeley.edu/strategicplan/index.shtml 4 Interview with Robin Mills, Head of UHS’ Sexual Health Education Program


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http://www.uhs.berkeley.edu/strategicplan/index.shtml

Senate Resolution

15/16069

Appendix List

https://www.guttmacher.org/pubs/US‐Abortion‐Patients.pdf http://opa.berkeley.edu/uc‐berkeley‐fall‐enrollment‐data http://www.uhs.berkeley.edu/strategicplan/index.shtml


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https://www.guttmacher.org/pubs/US-Abortion-Patients.pdf

http://opa.berkeley.edu/uc-berkeley-fall-enrollment-data

http://www.uhs.berkeley.edu/strategicplan/index.shtml

Kriss WorthingtonCouncilmember, City of Berkeley, District 72180 Milvia Street, 5th Floor, Berkeley, CA 94704PHONE 510-981-7170, FAX 510-981-7177, EMAIL [email protected]


To: Honorable Mayor and Members of the City CouncilFrom: Councilmembers Kriss Worthington

Councilmembers Susan Wengraf

Subject: City Manager Referral: Evaluate the Effectiveness of the City “Move-out” Program

RECOMMENDATION:Refer to the City Manager to examine the effectiveness of the City “Move-out” program and respond to the findings prior to May 2017.

BACKGROUND:Over the last decade, during the “Move-out” period, the City of Berkeley provided free dumpsters in highly populated areas in order to facilitate the disposal of debris and unwanted materials. This practice was highly successful in removing tons of debris from sidewalks and streets near the UC Campus.

During the 2016 “Move-out” period, our City Council office received an increase in calls from residents concerned with the impacts of debris and unwanted materials being left on sidewalks and streets.

In order to mitigate the number of complaints and to effectively remove debris from our streets and sidewalks, the City should take a fresh look at our current “Move-out” program. The examination should explore new recycling opportunities, ways to make recycling information more readily available, the possibility of increasing the number of dumpsters, and any other tools available that help prevent the increase of debris on Berkeley’s sidewalks and streets during the move out period.

FINANCIAL IMPLICATIONS:Minimal.

ENVIRONMENTAL SUSTAINABILITY:Consistent with Berkeley’s Environmental Sustainability Goals and no negative impact.

CONTACT PERSON: Councilmember Kriss Worthington 510-981-7170

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To: Honorable Mayor and Members of the City CouncilFrom: Councilmember Kriss Worthington

Subject: Send Letter to U.S. Fish and Wildlife Service Director Daniel Ashe to Protect the Monarch Butterfly Population

RECOMMENDATION:Send a letter to U.S. Fish and Wildlife Service Director Daniel Ashe urging protection of the threatened monarch butterfly population.

BACKGROUND:Monarch butterflies pollinate a wide range of wild plants. According to the Sierra Club, “in less than 20 years, the monarch butterfly population has declined by 90%.” However, herbicides such as Monsanto’s Roundup and Roundup Ready crops are decimating milkweed plants that monarch butterflies depend on to eat and reproduce. As milkweed plants are destroyed by herbicides such as Roundup, monarch butterflies lack a habitat to lay eggs and larvae and therefore are being threatened.

FINANCIAL IMPLICATIONS:None.



Attachment:1. Letter to Director Ashe2. Sierra Club’s Three Reasons to Protect Monarchs NOW

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U.S. Fish and Wildlife Service Director Daniel Ashe 1849 C Street N.W., Room 3331 Washington, District of Columbia 20240-0001

Dear Director Ashe,

In less than 20 years the population of monarch butterflies has decreased by 90%, and they need protection to survive. During that time, herbicides like Monsanto’s Roundup and genetically-manipulated Roundup Ready crops have destroyed the milkweed plants monarchs rely on to eat and lay their eggs. Corn and soybean fields in the Midwest have lost 99% of their milkweed since 1999. Furthermore, scientists predict climate change will increase the severe droughts, storms, and heat waves which lead to high levels of monarch butterfly deaths.

With so many threats and shocking level population decline, it is clear these beautiful creatures need additional help and protection today. We, the City of Berkeley urge you to take swift action to protect the fragile monarch butterfly population under the Endangered Species Act.

Sincerely,

The Berkeley City Council

Attachment 1

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Attachment 2

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Subject: Support Proposition 55: Continue Existing State Proposition 30, a Tax Extension to Fund Education and Healthcare Initiative

RECOMMENDATIONThat the City of Berkeley support Proposition 55 Tax Extension to Fund Education and Healthcare Initiative.

BACKGROUNDProposition 55 will continue a tax that only applies to incomes over $250,000 per year. There will be no increase in taxation. This measure simply continues the school funding adopted in 2012 under proposition 30. By extending the temporary personal income tax increase approved in 2012, the funding could be used toward improvements in education and healthcare. About 89 percent would go towards k-12 schools and 11 percent to community colleges. Proposition 55 defends students and schools from teachers being laid off, keeps class size stable, and supports art and music programs.

Proposition 55 is endorsed by California Teachers Association, League of Women Voters of California, Health Access California, Dolores Huerta Foundation, Consumer Federation of California, Housing California, California Labor Federation, California Black Chamber of Commerce.

For more information: http://tinyurl.com/Prop55in2016

FINANCIAL IMPLICATIONS:Minimal


CONTACT PERSON Councilmember Kriss Worthington 510-981-7170Ezekiel Akil Espinoza 510-776-8847

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http://tinyurl.com/Prop55in2016

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Kriss WorthingtonCouncilmember, City of Berkeley, District 72180 Milvia Street, 5th Floor, Berkeley, CA 94704PHONE 510-981-7170, FAX 510-981-7177, EMAIL [email protected] CONSENT CALENDAR

September 13, 2016To: Honorable Mayor and Members of the City CouncilFrom: Councilmember Kriss Worthington

Subject: Proclamation Honoring the Fiftieth Anniversary of the Judah L. Magnes Memorial Museum

RECOMMENDATION:Adopt a proclamation honoring the fiftieth anniversary of the Judah Magnes Memorial Museum

BACKGROUND:Founded by Seymour Fromer and Rebecca Camhi Fromer, the Judah L. Magnes Memorial Museum first opened its doors in 1962 at its first location, a one room exhibit in the Oakland-Piedmont Jewish Community Center. As an instant success, the Magnes received the Koretsky Collection of rare books and manuscripts and a collection of memoirs from the Institute for Righteous Acts about the rescue of Jews by non-Jews during the Nazi persecutions.

Currently the Judah L. Magnes Memorial Museum has found a home at the new 18,000 square feet facility, now called “The Magnes Collection of Jewish Art and Life” located at 2020 Allston Way in downtown Berkeley.

The Magnes has a large collection of art and ritual objects, and it contains the Blumenthal Rare book, Manuscript Library, and Western History Jewish Center. The WJHC documents the history of the Jewish community in the thirteen western states, with a special focus on the San Francisco Bay Area. It has a large collection of original records, paper, correspondence, and photographs. The Center offer archives focusing on the Global Jewish Diaspora, and works of fine art that pay tribute to the evolution of Jewish identity. The significance of this historic museum has provided its visitors with an understanding of its monuments.



CONTACT PERSON: Councilmember Kriss Worthington 510-981-7170Ezekiel Akil Espinoza 510-981-7170

Attachment:1. Proclamation Honoring Judah Magnes Memorial Museum

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http://www.magnes.org/scholars/magnes-history/people-and-institutions/founders/rebecca-camhi-fromer

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Proclamation Honoring 50 yearsThe Judah L. Magnes Memorial Museum

WHEREAS, Seymour Fromer and Rebecca Camhi Fromer founded the Judah L. Magnes Memorial Museum in 1962 to establish a location to display and celebrate a veritable hub of Jewish culture, scholarship, and community action since its founding in 1962; and

WHEREAS, The Magnes Museum collects, preserves, and provides access to archival and oral history documentation about the Jewish community in the American West; and

WHEREAS, Over the years, through purchases and generous gifts, the Magnes has continued to expand the scope of its collection, including modern and contemporarily art, music, and rare books and manuscripts in Hebrew and other Jewish languages to become a veritable hub of Jewish culture, scholarship, and community action; and

WHEREAS, The Judah L. Magnes Memorial Museum started out as a one room exhibit in the Oakland-Piedmont Jewish Community Center and as it has expanded greatly over time, changed its name to “The Magnes Collection of Jewish Art and Life” and is now located at 2020 Allston Way, a 18,000 square feet facility in downtown Berkeley; and

NOW THEREFORE, BE IT PROCLAIMED that Mayor and City Council of the City of Berkeley recognizes the 50 years of history, education and culture provided by the Judah L. Magnes Memorial Museum, now “The Magnes Collection of Jewish Art and Life; and encourages all local residents to join in honoring Judah Magnes Memorial Museum as well.

__________________________ ________________________ _________________________ Mayor Tom Bates Councilmember Max Anderson Councilmember Jesse Arreguin

__________________________ ________________________ _________________________ Councilmember Lori Droste Councilmember Laurie Capitelli Councilmember Linda Maio

__________________________ ________________________ _________________________ Councilmember Darryl Moore Councilmember Susan Wengraf Councilmember Kriss Worthington

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http://www.magnes.org/scholars/magnes-history/people-and-institutions/founders/rebecca-camhi-fromer

Kriss WorthingtonCouncilmember, City of Berkeley, District 7

2180 Milvia Street, 5th Floor, Berkeley, CA 94704

PHONE 510-981-7170 FAX 510-981-7177

[email protected]



Subject: Proclamation Commending #SaveBlackBerkeley

RECOMMENDATION: Adopt a proclamation commending #SaveBlackBerkeley for advocating for tenants and homeowners

BACKGROUND: The #SaveBlackBerkeley organization fights against illegal evictions in the City of Berkeley, focusing their efforts on African American tenants and homeowners. This organization’s stance against the exploitation of housing for the African American community is admirable.

#SaveBlackBerkeley deserves to be honored for its efforts to help the African American community confront illegal evictions and housing exploitation. The organization consistently holds events raising awareness and drafting petitions to prevent illegal evictions. An excellent example of their efforts is the sale of 835 Page Street. Ernest Thorton passed away in May 2015, leaving his home to family members who are now being forcefully evicted. #SaveBlackBerkeley is actively working to prevent this eviction and asks for help from the community for this and the many other cases they are actively working on.

For more information: http://www.saveblackberkeley.org/index.html



CONTACT PERSON Councilmember Kriss Worthington 510-981-7170

Attachment:1. Proclamation

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Kriss WorthingtonCouncilmember, City of Berkeley, District 72180 Milvia Street, 5th Floor, Berkeley, CA 94704PHONE 510-981-7170, FAX 510-981-7177, EMAIL [email protected] CONSENT CALENDAR

September 13, 2016To: Honorable Mayor and Members of the City CouncilFrom: Councilmember Kriss Worthington

Subject: Oppose Proposition 66: Expediting the Execution Process of Inmates and Reforming California’s Death Penalty Policy

RECOMMENDATION: Oppose Proposition 66 the state initiative that will expedite the execution process of inmates on death row and reform California’s death penalty policy.

BACKGROUND: Proposition 66 seeks to adopt a faster execution process for inmates currently on deathrow. However, a study done by Stanford Law professor John Donohue of the National Academy of Sciences in 2012 proved, “There is not the slightest credible statistical evidence that capital punishment reduces the rate of homicide.”

If Proposition 66 passes, prison spending will increase significantly as well as death row facility construction. Furthermore, since the process will be rushed, there is a higher chance of an innocent person being subject to the wrongful punishment by death penalty.

According to John Van de Kamp, the former Attorney General of California, "Prop. 66 is so flawed that it's impossible to know for sure all the hidden costs it will inflict on California taxpayers."

Additionally, California NAACP, Ella Baker Center for Human Rights, California Federation of Teachers, National Association of Criminal Defense Lawyers, the Southern Center for Human Rights, California Labor Federation, and the Lt. Governor of California, Gavin Newsom all oppose Proposition 66.

For more information: http://tinyurl.com/Prop66in2016

FINANCIAL IMPLICATIONS: Minimal.

ENVIROMENTAL SUSTAINABILITYConsistent with Berkeley’s Environmental Sustainability Goals and no negative impact.


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http://tinyurl.com/Prop66in2016

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Subject: Amend Minimum Wage Ordinance and Adopt a Paid Sick Leave Ordinance as a Compromise

RECOMMENDATION:That the Council amend the Minimum Wage Ordinance and adopt a Paid Sick Leave Ordinance as a compromise.

BACKGROUND:The City Council scheduled a special meeting to talk about the minimum wage on Thursday, August 11, 2016. The meeting did not reach quorum. The proposed language was not circulated to the public. In the interest of transparency, the proposals are now being made officially available to the public as attachments to this council item.

We are proposing the compromises that would have been discussed at the August 11 meeting will be discussed and considered for adoption at this time.

This proposal seeks to create a compromise between the two ballot measures on the November ballot.




Attachment: 1. Minimum Wage Compromise Draft Proposal 2. Paid Sick Leave Compromise Draft Proposal

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BE IT ORDAINED by the Council of the City of Berkeley as follows: The People of the City of

Berkeley do ordain as follows:

Section 1

Chapter 13.99 of the Berkeley Municipal Code is hereby amended as follows:

Chapter 13.99

13.99.010 Title and Purpose.

This ordinance shall be known as the "Minimum Wage, Sick Leave, and Employment Standards

Ordinance."

The purpose of this ordinance is to protect the public health, safety and welfare. It does this by

requiring that employees are compensated and provided with sick leave by their employers or

respective subcontractors in such a manner as to enable and facilitate their individual selfreliance

within the City of Berkeley. (Ord. 7352-NS § 1 (part), 2014)

13.99.020 Authority.

This Chapter is adopted pursuant to the powers vested in the City of Berkeley under the laws and

Constitution of the State of California including, but not limited to, the police powers vested in

the City pursuant to Article XI, Section 7 of the California Constitution and Section 1205(b) of

the California Labor Law. (Ord. 7352-NS § 1 (part), 2014)

13.99.030 Definitions.

The following terms shall have the following meanings:

A. “Berkeley Living Wage Standard” shall mean the wage required to be paid by an

Employer who does not provide employees with a medical benefit plan pursuant to paragraph A

of Section 13.27.050.

BA.A. "City" shall mean the City of Berkeley.

CBBB. "Department" shall mean the Department of Finance or other City department or

agency as the City shall by resolution designate.

DCCC. "Employee" shall mean any person who:

1. In a calendar week performs at least two (2) hours of work for an Employer

within the geographic boundaries of the City; and

2. Qualifies as an Employee entitled to payment of a minimum wage from any

Employer under the California minimum wage law, as provided under Section 1197 of

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the California Labor Code and wage orders published by the California Industrial

Welfare Commission, or is a participant in a Welfare-to-Work Program.

ED.D. "Employer" shall mean any Person, including corporate officers or executives, as

defined in Section 18 of the California Labor Code, who directly or indirectly through any other

person, including through the services of a temporary employment agency, staffing agency,

subcontractor or similar entity, employs or exercises control over the wages, hours or working

conditions of any Employee, or any person receiving or holding a business license through Title

9 of the Berkeley Municipal Code.

EF. "Hospitality Employer" means a Person who owns, controls, or operates any part of a

hotel or restaurant or banquet facilitiesy within the City, including as a subcontractor thereto, but

does not include any governmental agency.

FG. "Hospitality Worker" means any individual, including, but not limited to, table servers,

cooks, dish washers, etc., who works for a Hospitality Employer and who performs a service for

which a Hospitality Employer imposes a Service Charge. "Hospitality Worker" does not include

a managerial employee, except when the manager is serving customers as detailed in Section

050A of this Chapter. unless the employee is a supervisor who also performs nonsupervisory

work.

GH.E "Minimum Wage" shall have the meaning set forth in Section 40 of this Chapter.

HI. F. "Nonprofit Corporation" shall mean a nonprofit corporation, duly organized,

validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if

a foreign corporation) in good standing under the laws of the State of California, which

corporation has established and maintains valid nonprofit status under Section 501(c)(3) of the

United States Internal Revenue Code of 1986, as amended, and all rules and regulations

promulgated under such Section, or any non-profit educational organization qualified under

Section 23701 (d) of the Revenue and Taxation code.

IJ. "Paid Sick Leave" shall mean the accrued increments of compensated leave provided by

an Employer to an Employee as a benefit of the employment for use by the Employee during an

absence from the employment for any of the following reasons specified in Section 13.99.045.B

of this Chapter.

JK. “Person” shall mean an individual, corporation, partnership, limited partnership, limited

liability partnership, limited liability company, business trust, estate, trust, association, joint

venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or

foreign.

JL. "Service Charge" means all separately-designated amounts collected by a Hospitality

Employer from customers that are for service by Hospitality Workers, or are described in such a

way that customers might reasonably believe that the amounts are for those services or in lieu of

tips, including but not limited to those charges designated on receipts under the term "service

charge," "delivery charge," or "porterage charge."

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M. G "Welfare-to-Work Program" shall mean the CalWORKS Program, County Adult

Assistance Program (CAAP) which includes the Personal Assisted Employment Services (PAES)

Program, and General Assistance Program, and any successor programs that are substantially

similar to them. (Ord. 7352-NS § 1 (part), 2014)

LN. "Small business" shall mean, for the sole purpose of interpreting Section 13.99.045, an

Employer for which fewer than ten twenty-five persons work for compensation during a given

week. In determining the number of persons performing work for an Employer during a given

week, all persons performing work for compensation on a full-time, part-time, or temporary basis

shall be counted, including persons made available to work through the services of a temporary

services or staffing agency or similar entity.

MO. “Youth Works” means the City of Berkeley operated employment program for Berkeley

youth.

13.99.040 Minimum Wage.

A. Employers shall pay Employees no less than the Minimum Wage set forth below for each

hour worked within the geographic boundaries of the City.

Date Minimum Hourly Wage

October 1, 2014 $10.00

October 1, 2015 $11.00

October 1, 2016 $12.53

October 1, 2017 $13.75

October 1, 20187 $15.00

B. To prevent inflation from eroding its value, beginning on January 1, 2019, and thereafter

on the 1st of January of each year, the Minimum Wage shall increase by an amount

corresponding to the prior calendar year's increase, if any, in the Consumer Price Index for urban

wage earners and clerical workers for the San Francisco-Oakland-San Jose, CA metropolitan

statistical area (or if such index is discontinued, then in the most similar successor index).

B. For Employers that are Nonprofit Corporations, the requirements of this Chapter shall not

take effect until October 1, 2015, at which time the minimum wage will be $11.00 per hour.

C. To bring the Minimum Wage into alignment with the Berkeley Living Wage Standard in

a manner fair to both employers and employees, the Minimum Wage shall be increased by an

additional 3% beginning on January 1, 2019, and continuing on the 1st of January of each year

thereafter, until it is equal to but not greater than the Berkeley Living Wage Standard in effect at

that time. An increase of less than 3% per year is permissible only for purposes of making the

Minimum Wage provided for under this paragraph equal to the Berkeley Living Wage Standard.

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DC. For the Employer Youth Works and for job training participants up to 25 years of age in

youth job training programs operated by a Nonprofit Corporation or a governmental entity, the

Minimum Wage shall be increased to $12.00 on October 1, 2017 and, starting January 1, 2019

and on every January 1 thereafter, the Minimum Wage shall be increased by $1.2550 per hour

until it is equal to the Minimum Wage paid by all other Employers covered by this Section. An

increase of less than $1.2550 per hour is permissible only for purposes of making the Minimum

Wage provided for under this paragraph equal to the Minimum Wage paid by all other

Employers under this Section. Once the Minimum Wage established by this paragraph is equal

to the Minimum Wage for all other Employers, it shall increase in the same amounts and on the

same terms as for all other Employers as provided by this Section.

ED. The requirement to pay Minimum Wage as specified in this Section shall apply to all

Employers except where prohibited by state or federal law.

FE. C. A violation for unlawfully failing to pay the Minimum Wage shall be deemed to

continue from the date immediately following the date that the wages were due and payable as

provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to

the date immediately preceding the date the wages are paid in full. (Ord. 7352-NS § 1 (part),

2014)

GF. Nothing in this section shall restrict the City from increasing the minimum wage rate

beyond the amounts provided for in this section.

13.99.045 Paid Sick Leave

A. Accrual of Paid Sick Leave.

1. Employees are already accruing Paid Sick Leave under current State Law. Thirty

days after the effective date of this Chapter or at the commencement of

employment, whichever is later, accrual and use of Paid Sick Leave will be

governed by the rules set out in this Chapter. Paid Sick Leave shall begin to

accrue on the ninetieth (90th) day following the passage of this provision by

voters. For Employees hired by an Employer after the date on which Paid Sick

Lleave begins to accrue under this paragraph, Employees shall not be entitled to

use Paid Sick Leave until after 90 calendar days of employment with the

Employer.

2. For every 30 hours worked after Paid Sick Leave begins to accrue for an

Employee, the Employee shall accrue one hour of Paid Sick Leave. Such leave

shall accrue only in hour-unit increments; there shall be no accrual of a fraction of

an hour of such leave.

3. For Employees of Small Businesses, there shall be a cap of 48 hours of accrued

Paid Sick Leave. For Employees of other Employers, there shall be a cap of 72 hours of accrued

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Paid Sick Leave. Accrued Paid Sick Leave for Employees carries over from year to year

(whether calendar year or fiscal year), but shall not exceed the aforementioned caps. Nothing

herein precludes an Employer from establishing a higher cap or no cap on the number of accrued

hours.

4. If an Employer has a paid leave policy, such as a paid time off policy, that makes

available to Employees an amount of paid leave that may be used for the same

purposes as Paid

Sick Leave under this Chapter and that is sufficient to meet the requirements for accrued Paid

Sick Leave as stated in subsections (A) and (B), the Employer is not required to provide

additional Paid Sick Leave.

5. An Employer is not required to provide financial or other reimbursement to an

Employee upon the Employee's termination, resignation, retirement, or other

separation from employment, for accrued Paid Sick Leave that the Employee has

not used.

6. The rate of pay shall be the Employee’s hourly wage. If the Employee in the 90

days of employment before taking accrued sick leave had different hourly pay

rates, was paid by commission or piece rate, or was a nonexempt salaried

Employee, then the rate of pay shall be calculated by dividing the Employee’s

total wages, not including overtime premium pay, by the Employee’s total hours

worked in the full pay periods of the prior 90 days of employment.

B. Use of Paid Sick Leave.

1. An Employee may use Paid Sick Leave not only when he or she is ill or injured or

for the purpose of the Employee's receiving medical care, treatment, or diagnosis,

as specified more fully in California Labor Code § 233(b)(4), but also to aid or

care for the following persons when they are ill or injured or receiving medical

care, treatment, or diagnosis: Child; parent; legal guardian or ward; sibling;

grandparent; grandchild; and spouse, registered domestic partner under any state

or local law, or designated person. The Employee may use all or any percentage

of his or her Paid Sick Leave to aid or care for the aforementioned persons. The

aforementioned child, parent, sibling, grandparent, and grandchild relationships

include not only biological relationships but also relationships resulting from

adoption; step-relationships; and foster care relationships. "Child" includes a child

of a domestic partner and a child of a person standing in loco parentis.

2. If the Employee has no spouse or registered domestic partner, the Employee may

designate one person as to whom the Employee may use paid sick leave to aid or

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care for the person. The opportunity to make such a designation shall be extended

to the Employee no later than the date on which the Employee has worked 30

hours after Paid Sick Leave begins to accrue pursuant to this Chapter. There shall

be a window of 10 work days for the Employee to make this designation.

Thereafter, the opportunity to make such a designation, including the opportunity

to change such a designation previously made, shall be extended to the Employee

on an annual basis, with a window of 10 work days for the Employee to make the

designation.

3. An Employer may not require, as a condition of an Employee's taking Paid Sick

Leave, that the Employee search for or find a replacement worker to cover the

hours during which the Employee is on Paid Sick Leave.

4. If the need for Paid Sick Leave is foreseeable, the Employee shall provide

reasonable advance notification. If the need for Paid Sick Leave is unforeseeable,

the Employee shall provide notice of the need for the leave as soon as practicable.

5. An Employer may lend Paid Sick Leave days to an Employee in advance of

accrual, at the Employer’s discretion and with proper documentation.

6. An Employer may only take reasonable measures to verify or document that an

Employee's use of Paid Sick Leave is lawful, and shall not require an Employee to

incur expenses in excess of $15 in order to show his or her eligibility for such

Paid Sick Leave.

7. An Employer shall provide payment for Paid Sick Leave taken by an Employee

no later than the payday for the next regular payroll period after the Paid Sick

Leave was taken.

8. No Employer that is not a Small Business may limit the accrual or use of Paid

Sick Leave except as specified in this Chapter. A Small Business may limit the

use of Paid Ssick Lleave to 48 hours per calendar year.

13.99.050 Waiver Through Collective Bargaining.

To the extent required by federal law, all or any portion of the applicable requirements of this

Chapter may be waived in a bona fide collective bargaining agreement, provided that such

waiver is explicitly set forth in such agreement in clear and unambiguous terms. (Ord. 7352-NS §

1 (part), 2014)

13. 99.050 Hospitality Service Charges

A. Service Charges shall not be retained by the Hospitality Employer but shall be paid over

in their entirety to the Hospitality Worker(s) performing services for the customers from whom

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Service Charges are to be collected. No part of these charges may be paid to the Hospitality

Employer or supervisors except for any portion of their work time spent on nonsupervisory work

serving these customers, and then at no higher rate of compensation than the average of what is

paid to other Hospitality Workers performing similar customer service. The Service Charges

shall be distributed to the Hospitality Workers no later than the next payroll following the work

or collection of the charge from the customer, whichever is later. Alternatively, to the extent

permitted by State or Federal law, the Employer may pay an hourly amount to each Employee,

above the Employee’s regular wage rate, that the Employer estimates to be equivalent to the

portion of the Service Charge that would be due to the Employee, so long as the Employer

makes an accounting of the actual service charge collected and due to each Employee at least

quarterly, and pays any outstanding amount due no later than the next payroll date. If the total

service charges due to an Employee in a quarter exceeds the estimated service charges

distributed to the Employee during the quarter by 25%, then the employer shall pay the

employee a penalty of 50% of the shortfall. A former Eemployee shall be entitled to a

distribution of services charges upon the close of the quarter after the Employee’s last date of

employment. An Employer must either hand-deliver or mail to the last known address of the

Employee any unpaid service charges to a former Eemployee within 10 days of the close of that

quarter. Nothing in this chapter shall be construed as limiting a current or former Employee’s

right to bring legal action for unpaid wages or for violation of any other laws concerning wages,

hours, or other standards or rights. Without limitation of the foregoing:

1. Service Ccharges collected for banquets or catered meetings shall be paid to the

Hospitality Workers who actually work the banquet or catered meeting;

2. Service Ccharges collected for room service shall be paid to the Hospitality

Workers who actually deliver food and beverage associated with the charge; and

3. Service Ccharges collected for porterage service shall be paid to the Hospitality

Workers who actually carry the baggage associated with the charge.

B. This section does not apply to any tip, gratuity, money, or part of any tip, gratuity, or

money that has been paid or given to or left for a Hospitality Worker by customers over and

above the actual amount due for services rendered or for goods, food, drink, or articles sold or

served to the customer.

C. No Employer or agent thereof shall deduct any amount from wages due an Employee on

account of a Service Charge, or require an Employee to credit the amount, or any part thereof, of

a Service Charge against and as a part of the wages due the Employee from the Employer.

13.99.055 Waiver Through Collective Bargaining.

To the extent required or permitted by federal or state law, all or any portion of the applicable

requirements of this Chapter may be waived in a bona fide collective bargaining agreement,

provided that such waiver is explicitly set forth in such agreement in clear and unambiguous

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terms. Any request to an individual Employee by an Employer to waive his or her rights under

this Chapter shall constitute a violation of this Chapter.

13.99.060 Notice, Posting and Payroll Records.

A. By August 1, 2017, of each year, the Department shall publish and make available to

Employers a bulletin announcing the adjusted Minimum Wage rate, which shall take effect on

October 1, 2017of that year. By August 1, 2017, the Department shall publish and make

available to Employers a bulletin announcing the Minimum Wage rate which shall take effect on

October 1, 2018. By November 1, 2018 and by November 1 of each year thereafter, the

Department shall publish and make available to Employers a bulletin announcing the adjusted

Minimum Wage rate, which shall take effect on January 1 of the following year. In conjunction

with this bulletin, the Department shall by the same dates specified above August 1 of each year

publish and make available to Employers, in all languages spoken by more than five percent of

the work force in the City, a notice suitable for posting by Employers in the workplace informing

Employees of the current Minimum Wage rate and of all their rights under this Chapter.

B. Every Employer shall post in a conspicuous place at any workplace or job site in the City

where any Employee works the notice published each year by the Department informing

Employees of the current Minimum Wage rate and of their rights under this Chapter.

Every

Employer shall post such notices in any language spoken by at least five percent of the

Employees at the work-place or job site. Every Employer shall also provide each Employee at

the time of hire with the Employer’s name, address, and telephone number in writing. Failure to

post such notice shall render the Employer subject to administrative citation, pursuant to Section

90, Subsection A, of this Chapter.

C. Employers shall retain payroll records pertaining to Employees for a period of four years,

and shall allow the City access to such records, with appropriate notice and at a mutually

agreeable time, to monitor compliance with the requirements of this Chapter. Where an

Employer does not maintain or retain adequate records documenting wages paid or does

not allow the City reasonable access to such records, the Employee’s account of how

much he or she was paid shall be presumed to be accurate, absent clear and convincing

evidence otherwise. Furthermore, failure to maintain such records or to allow the City

reasonable access shall render the Employer subject to administrative citation, pursuant to

Section 90, Subsection A, of this Chapter. Such payroll records shall include the amount

of hours worked, wages paid, Paid Sick Leave accrued, and distributions of hospitality

sService cCharges.

D. If a violation of this Chapter has been finally determined, the City shall require the

Employer to post public notice of the Employer’s failure to comply in a form determined by the

City. Failure to post such notice shall render the Employer subject to administrative citation,

pursuant to Section 90, Subsection A, of this Chapter. (Ord. 7352-NS § 1 (part), 2014)

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E. Reporting of Paid Sick Leave. Employers shall include the number of hours of Paid Sick

Leave accrued to date in such records that they provide to Employees at the end of each

pay period. Failure to provide such records shall render the Employer subject to

administrative citation, pursuant to Section 90, Subsection A, of this Chapter.

F. Reporting of Service Charges. Every Employer that collects a Service Charge shall post a

notice in a conspicuous place at any workplace or job site in the City where any

Employee worksdisclose in writing to each Employee in the chain of service and

distribution explaining how Service Charges are distributed among Employees.

Employers shall report the amount of money collected as Service Charges to Employees

no later than the end of the pay period when they were collected or at least quarterly as

provided in Section 13.99.050A. In order to ensure that the distribution of Service

Charges is lawful and has been appropriately distributed, Employers shall, upon request

by an Employee or City staff, make available for inspection their records of sales and

associated Service Charges in a given pay period. These records shall remain be the

property of the Employer.for the purpose of investigation by the Employee or

Department and for determining if the Employer has appropriately distributed the Service

Charges collected, and shall not be public records, nor photocopied by an employee.

13.99.070 Retaliation Prohibited.

A. It shall be unlawful for an Employer or any other party to discriminate in any manner or

take any adverse action (including action relating to any term, condition or privilege of

employment) against any person in retaliation for exercising rights protected under this Chapter.

Rights protected under this Chapter include, but are not limited to: the right to be paid the

specified minimum wage; the right to accrue and use paid sick leave as specified; the right to

receive a distribution of hospitality service charges as specified; the right to file a complaint or

inform any person about any party’s alleged noncompliance with this Chapter; and the right to

inform any person of his or her potential rights under this Chapter or otherwise educate any

person about this Chapter or to assist him or her in asserting such rights.

B. No Employer may fund increases in compensation required by this Chapter, nor

otherwise respond to the requirements of this Chapter, by reducing the compensation of any

nonmanagement Employee, nor by reducing the pension, vacation, or other non-wage benefits of

any such Employees, nor by increasing charges to them for parking, meals, uniforms or other

items. If an Employer makes such adverse changes after the filing of the notice to circulate the

petition giving rise to this Chapter but before this Chapter has become effective, then upon this

Chapter's effective date, such Employer shall restore the conditions of the status quo ante.

C. Protections of this Chapter shall apply to any person who mistakenly, but in good faith,

alleges noncompliance with this Chapter. Taking Evidence that an Employer has taken adverse

action against a person within ninety (90) days of the person’s exercise of rights protected under

this Chapter shall raise a rebuttable presumption that the Employer’s action was retaliatory of

having done so in retaliation for the exercise of such rights. “Rebuttable pPresumption,” as used

in this section, means that a trier of fact must find the existence of the fact presumed unless and

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until evidence is introduced which would support a finding of its nonexistence. Failure to

comply with this provision shall render the Employer subject to administrative citation, pursuant

to Section 90, Subsection A, of this Chapter. (Ord. 7352-NS § 1 (part), 2014)

13.99.080 Implementation.

A. Guidelines. The Department shall be authorized to coordinate implementation and

enforcement of this Chapter and may shall promulgate appropriate guidelines or rules for such

purposes within 90 days of the date on which this Chapter becomes effective. The Department

shall seek out partnerships with community-based organizations and collaborate with the

Berkeley Labor Commission on Labor to facilitate effective implementation and enforcement of

this Chapter. Any guidelines or rules promulgated by the Department shall have the force and

effect of law and may be relied on by Employers, Employees and other parties to determine their

rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures

for ensuring fair, efficient and cost-effective implementation of this Chapter, including

supplementary procedures for helping to inform Employees of their rights under this Chapter, for

monitoring Employer compliance with this Chapter, and for providing administrative hearings to

determine whether an Employer or other person has violated the requirements of this Chapter.

B. Reporting Violations. An Employee or any other person may report to the Department in

writing any suspected violation of this Chapter. The Department shall encourage reporting

pursuant to this subsection by keeping confidential, to the maximum extent permitted by

applicable laws, the name and other identifying information of the Employee or person reporting

the violation. Provided, however, that with the authorization of such person, the Department may

disclose his or her name and identifying information as necessary to enforce this Chapter or

other Employee protection laws. In order to further encourage reporting by Employees, if the

Department notifies an Employer that the Department is investigating a complaint, the

Department shall require the Employer to post or otherwise notify its Employees that the

Department is conducting an investigation, using a form provided by the Department. Failure to

post such notice shall render the Employer subject to administrative citation, pursuant to Section

90, Subsection A, of this Chapter.

C. Investigation. The Department shall be responsible for investigating any possible

violations of this Chapter by an Employer or other person. The Department shall have the

authority to inspect workplaces, interview persons and request the City Attorney to subpoena

books, papers, records, or other items relevant to the enforcement of this Chapter.

D. Informal Resolution. The Department shall make every effort to resolve complaints

informally, in a timely manner, and shall have a policy that the Department shall take no more

than six months to resolve any matter, before initiating an enforcement action. The failure of the

Department to meet these timelines within six months shall not be grounds for closure or

dismissal of the complaint. (Ord. 7352-NS § 1 (part), 2014)

13.99.090 Enforcement.

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A. Where prompt compliance is not forthcoming, the City and the Department shall take any

appropriate enforcement action to secure compliance, including but not limited to the

following:

1. The City may issue an Administrative Citation pursuant to Chapter 1.28 of

the Berkeley Municipal Code. The amount of this fine shall vary based on the provision

of this Chapter being violated, as specified below:

a. A fine of one thousand dollars ($1,000.00) may be assessed for

retaliation

by an Employer against an Employee for exercising rights protected under this Chapter

for each Employee retaliated against.

b. A fine of five hundred dollars ($500.00) may be assessed for any

of the following violations of this Chapter:

i. Failure to post any notice, bulletin, or information required under

Section 60 of this Chapter of the Minimum Wage rate ii. Failure to

provide notice of investigation to Employees iii. Failure to post notice

of violation to public

iv. Failure to maintain payroll records for four years

v. Failure to allow the City access to payroll records

vi. Failure to provide to an Employee any information required to be

provided to an Employee under Section 60 of this Chapter.

c. A fine equal to the total amount of appropriate remedies, pursuant to

subsection E of this section. Any and all money collected in this way that is the rightful

property of an Employee, such as back wages, interest, and civil penalty payments, shall

be disbursed by the City in a prompt manner.

2. Alternatively, the City may pursue administrative remedies in accordance

with the following procedures:

a. Whenever the City determines that a violation of any provision of

this Chapter is occurring or has occurred, the City may issue a written

compliance order to the Employer responsible for the violation.

b. A compliance order issued pursuant to this chapter shall contain

the following information:

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i. The date and location of the violation; ii.

A description of the violation; iii. The

actions required to correct the violation;

iv. The time period after which administrative penalties will begin to

accrue if compliance with the order has not been achieved;

v. Either a copy of this Chapter or an explanation of the

consequences of noncompliance with this Chapter and a

description of the hearing procedure and appeal process;

vi. A warning that the compliance order shall become final unless a

written request for hearing before the City is received within

fourteen days of receipt of the compliance order.

c. Following receipt of a timely request for a hearing, the City shall provide

the Employer responsible for the violation with a hearing and, if necessary, a subsequent

appeal to the City Council that affords the Employer due process. During the pendency of

the hearing and any subsequent appellate process, the City will not enforce any aspect of

the compliance order.

3. The City may initiate a civil action for injunctive relief and damages and

civil penalties in a court of competent jurisdiction.

B. Any person aggrieved by a violation of this Chapter, any entity a member of which is

aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of

the public as provided for under applicable state law, may bring a civil action in a court

of competent jurisdiction against the Employer or other person violating this Chapter and,

upon prevailing, shall be awarded reasonable attorneys’ fees and costs and shall be

entitled to such legal or equitable relief as may be appropriate to remedy the violation

including, without limitation, the payment of any back wages unlawfully withheld, the

payment of an additional sum as a civil penalty in the amount of $50 to each Employee or

person whose rights under this Chapter were violated for each day that the violation

occurred or continued, reinstatement in employment and/or injunctive relief. Provided,

however, that any person or entity enforcing this Chapter on behalf of the public as

provided for under applicable state law shall, upon prevailing, be entitled only to

equitable, injunctive or restitutionary relief to Employees, and reasonable attorneys’ fees

and costs.

C. This Section shall not be construed to limit an Employee’s right to bring legal action for a

violation of any other laws concerning wages, hours, or other standards or rights nor shall

exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

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D. Except where prohibited by state or federal law, City agencies or departments may

revoke or suspend any registration certificates, permits or licenses held or requested by

the Employer until such time as the violation is remedied. The City shall not renew any

such license of an Employer with outstanding violations, as finally determined under this

Chapter, until such time as the violation is remedied.

E. The remedies for violation of this Chapter include but are not limited to:

1. Reinstatement, the payment of back wages unlawfully withheld, and the

payment of an additional sum as a civil penalty in the amount of $50 to each Employee or

person whose rights under this Chapter were violated for each day or portion thereof that

the violation occurred or continued, and fines imposed pursuant to other provisions of

this Code or state law.

2. Interest on all due and unpaid wages at the rate of interest specified in

subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the

date that the wages were due and payable as provided in Part 1 (commencing with

Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in

full.

3. Reimbursement of the City’s administrative costs of enforcement and

reasonable attorney’s fees.

4. If a repeated violation of this Chapter has been finally determined, the

City may require the Employer to pay an additional sum as a civil penalty in the amount

of $50 to the City for each Employee or person whose rights under this Chapter were

violated for each day or portion thereof that the violation occurred or continued, and fines

imposed pursuant to other provisions of this Code or state law.

F. The remedies, penalties and procedures provided under this Chapter are cumulative and

are not intended to be exclusive of any other available remedies, penalties and procedures

established by law which may be pursued to address violations of this Chapter. Actions

taken pursuant to this Chapter shall not prejudice or adversely affect any other action,

civil or criminal, that may be brought to abate a violation or to seek compensation for

damages suffered. (Ord. 7352-NS § 1 (part), 2014)

13.99.100 Relationship to Other Requirements No Preemption of Higher Standards.

This The purpose of this Chapter is to ensure provides for payment of a local Minimum Wage

and minimum labor standards. This Chapter shall not be construed to preempt or otherwise limit

or affect the applicability of any other law, regulation, requirement, policy or standard that

provides for payment of higher or supplemental wages or benefits, or that extends other

protections. This Chapter shall not be construed to limit a discharged Employee’s right to bring a

common law cause of action for wrongful termination. (Ord. 7352-NS § 1 (part), 2014)

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13.99.110 Application Of Minimum Wage To Welfare-To-Work Programs.

The Minimum Wage established under this Chapter shall apply to the Welfare-to-Work programs

under which persons must perform work in exchange for receipt of benefits. Participants in

Welfare-to-Work Programs within the City of Berkeley shall not, during a given benefits period,

be required to work more than a number of hours equal to the value of all cash benefits received

during that period, divided by the Minimum Wage. (Ord. 7352-NS § 1 (part), 2014)

13.99.120 Fees.

Nothing herein shall preclude the City Council from imposing a cost recovery fee on all

Employers to pay the cost of administering this Chapter. (Ord. 7352-NS § 1 (part), 2014)

13.99.130 Exemptions.

The requirements of this chapter shall not apply to the following Employees:

1. Employees who are standing by or on-call according to the criteria

established by the Fair Labor Standards Act, 29 U.S.C. Section 201. This exemption shall

apply only during the time when the Employee is actually standing by or on-call.

2. Job training program participants up to 25 years of age in youth job

training programs operated by Nonprofit Corporations or governmental agencies. (Ord.

7352-NS § 1 (part), 2014)

13.99.130 Severability

If any part or provision of this ordinance, or the application of this ordinance to any person or

circumstance, is held invalid, the remainder of this ordinance, including the application of such

part or provisions to other persons or circumstances, shall not be affected by such a holding and

shall continue in full force and effect. To this end, the provisions of this ordinance are severable.

Section 2 Relationship to Other Provisions A. This initiative measure is intended to add to and supplement the existing Minimum Wage

Ordinance in the Berkeley Municipal Code. Any provisions in the Berkeley Municipal Code that

are re-enacted by this initiative measure shall continue in full force and effect upon the adoption

of this measure by voters without interruption.

B. If there are provisions of Chapter 13.99 of the Berkeley Municipal Code that are not

reenacted by this initiative measure because Chapter 13.99 was amended after the notice of

intent for this initiative measure was filed, then those provisions shall remain in effect to the

extent they are consistent with and further the purpose of this initiative measure. To this end, the

City Council shall re-number any existing provisions of Chapter 13.99 to the extent necessary.

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C. If there is no Chapter 13.99 of the Berkeley Municipal Code at the time that this initiative

measure is considered by the voters, then the provisions of Chapter 13.99 as set forth above shall

nonetheless be enacted.

Section 3 Effective Date The provisions of this initiative measure shall become effective on the ninetieth thirtieth (90th)

day following the passage of this initiative measure by the voters of the City of Berkeley.

Section X. That a new Berkeley Municipal Code Chapter 13.100 is adopted to read as follows:

Chapter 13.100

PAID SICK LEAVE

Sections: 13.100.010 Title. 13.100.020 Purpose. 13.100.030 Definitions. 13.100.040 Accrual and Use of Paid Sick Leave. 13.100.050 Waiver Through Collective Bargaining. 13.100.060 Notice, Posting and Payroll Records. 13.100.070 Retaliation Prohibited. 13.100.080 Implementation and Enforcement. 13.100.090 City Undertaking Limited Promotion of General Welfare. 13.100.100 Severability. 13.100.110 Other Legal Requirements. 13.100.120 More Generous Employer Leave Policies.

13.100.010 Title. This Chapter shall be known as the “Paid Sick Leave Ordinance”

13.100.020 Purpose. Paid sick leave provides employees protection against loss of income during absences from

work due to illness or injury to themselves, a family member or another designated person that

requires direct care by the employee. Sick leave is intended to be used only for the purposes set

forth herein.

Paid sick leave benefits both the individuals receiving the benefit and their families, as well as

community public health. Many workers without paid sick leave choose to go to work while ill

to avoid a reduction in their paychecks and threat to job security. As a result, the Centers for

Disease Control and Prevention and other public health researchers have linked the lack of paid

sick leave with the transmission of illness. Sick workers may infect their coworkers and

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members of the public in the workplace, on public transit, and in between. Studies have also

found that workers with paid sick leave are more likely to access preventative health care.

13.100.030 Definitions. The following terms shall have the following meanings: A.

"City" shall mean the City of Berkeley.

Resolution No. 67,545-N.S. Page 3 of 9

B. "Employer" shall mean any person, including corporate officers or executives, as defined in

Section 18 of the California Labor Code, who directly or indirectly through any other person,

including through the services of a temporary employment agency, staffing agency,

subcontractor or similar entity, employs or exercises control over the wages, hours or working

conditions of any Employee, or any person receiving or holding a business license through Title

9 of the Berkeley Municipal Code. C. "Employee" shall mean any person who:

1. In a calendar week performs at least two (2) hours of work for an Employer within the

geographic boundaries of the City; and

2. Qualifies as an employee entitled to payment of a minimum wage from any employer

under the California minimum wage law, as provided under Section 1197 of the California Labor

Code and wage orders published by the California Industrial Welfare Commission, or is a

participant in a Welfare-to-Work Program.

D. "Paid Sick Leave" shall mean have the meaning defined in California Labor Code §

233(b)(4) as follows: “Sick leave means accrued increments of compensated leave provided by

an Employer to an Employee as a benefit of the employment for use by the Employee during an

absence from the employment for any of the following reasons specified in 13.100.040.B of this

Chapter: (a) The Employee is physically or mentally unable to perform his or her duties due to

illness, injury, or a medical condition of the Employee; (b) The absence is for the purpose of

obtaining professional diagnosis or treatment for a medical condition of the Employee; (c) The

absence is for other medical reasons of the Employee, such as pregnancy or obtaining a physical

examination. "Sick leave" does not include any benefit provided under an Employee welfare

benefit plan subject to the federal Employee Retirement Income Security Act of 1974 (Public

Law 93406, as amended) and does not include any insurance benefit, workers' compensation

benefit, unemployment compensation disability benefit, or benefit not payable from the

Employer's general assets”, except that the definition here extends beyond the Employee's own

illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to

also encompass time taken off work by an Employee for the purpose of providing care or

assistance to other persons, as specified further in 13.100.040(B)(2), with an illness, injury,

medical condition, need for medical diagnosis or treatment, or other medical reason.

D.E. "Small bBusiness" shall mean, for the sole purpose of interpreting this Chapter, an

Employer for which fewer than twenty-five persons work for compensation during a given

week. In determining the number of persons performing work for an Employer during a given

week, all persons performing work for compensation on a fulltime, part-time, or temporary basis

shall be counted, including persons made available to work through the services of a temporary

services or staffing agency or similar entity.

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13.100.040 Accrual and Use of Paid Sick Leave. A.

Accrual of Paid Sick Leave.

1. Employees shall begin to accrue Paid Sick Leave on October 1, 2017, or at the

commencement of employment with the Employer, whichever is later.Employees who have

accrued Paid Sick Leave under current California law prior to October 1, 2017 shall continue to

accrue and use such Paid Sick Leave consistent with current California law. Employees who have

not accrued Paid Sick Leave under current California law by October 1, 2017 shall begin to accrue

Paid Sick Leave on October 1, 2017, or at the commencement of employment with the Employer,

whichever is later.

2. For every 30 hours worked after Paid Sick Leave begins to accrue for an Employee, the

Employee shall accrue one hour of Paid Sick Leave. Such leave shall accrue only in hour-unit

increments; there shall be no accrual of a fraction of an hour of such leave.

3. For Employees of Small Businesses, there shall be a cap of 48 hours of accrued Paid Sick

Leave. For Employees of other Employers, there shall be a cap of 72 hours of accrued Paid Sick

Leave. Accrued Paid Sick Leave for Employees carries over from year to year (whether calendar

year or fiscal year), but shall not exceed the aforementioned caps. Nothing herein precludes an

Employer from establishing a higher cap or no cap on the number of accrued hours.There shall be

a cap of 48 hours of accrued Paid Sick Leave. Accrued Paid Sick Leave for Employees carries

over from year to year (whether calendar year or fiscal year), but is limited to the aforementioned

cap.

4. If an Employer has a paid leave policy, such as a paid time off policy, vacation, or other

paid leave policy that makes available to Employees an amount of paid leave that may be used

for the same purposes as Paid Sick Leave under this Chapter and that is sufficient to meet the

requirements for accrued Paid Sick Leave as stated in subsections (A) and (B), the Employer is

not required to provide additional Paid Sick Leave.

4.5. An Employer is not required to provide financial or other reimbursement to an Employee

upon the Employee's termination, resignation, retirement, or other separation from employment,

for accrued Paid Sick Leave that the Employee has not used.

5.6. The rate of pay shall be the Employee’s hourly wage. If the Employee in the 90 days of

employment before taking accrued sick leave had different hourly pay rates, was paid by

commission or piece rate, or was a nonexempt salaried Employee, then the rate of pay shall be

calculated by dividing the Employee’s total wages, not including overtime premium pay, by the

Employee’s total hours worked in the full pay periods of the prior 90 days of employment.

B. Use of Paid Sick Leave.

1. An Employee may begin using Paid Sick Leave 90 calendar days after commencement of

employment.

2. An Employee may use Paid Sick Leave not only when he or she is ill or injured or for the

purpose of the Employee's receiving medical care, treatment, or diagnosis, as specified more fully

in California Labor Code § 233(b)(4), but also to aid or care for the following persons when they

are ill or injured or receiving medical care, treatment, or diagnosis: child, parent, legal guardian

or ward, sibling, grandparent, grandchild, and spouse, registered domestic partner under any state

or local law, or designated person. "Child" includes a child of a domestic partner and a child of a

person standing in loco parentis. The Employee may use all or any percentage of his or her Paid

Sick Leave to aid or care for the aforementioned persons. The aforementioned child, parent,

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sibling, grandparent, and grandchild relationships include not only biological relationships but

also relationships resulting from adoption; step-relationships; and foster care relationships.

3. If the employee has no spouse or registered domestic partner, the employee may designate

one person as to whom the employee may use paid sick leave to aid or care for the person. The

opportunity to make such a designation shall be extended to the employee no later than the date

on which the employee has worked 30 hours after paid sick leave begins to accrue pursuant to

Section 13.100.040.A.2. There shall be a window of 10 work days for the employee to make this

designation. Thereafter, the opportunity to make such a designation, including the opportunity to

change such a designation previously made, shall be extended to the employee on an annual basis,

with a window of 10 work days for the employee to make the designation.

4. An Employer may not require, as a condition of an Employee's taking Paid Sick Leave,

that the Employee search for or find a replacement worker to cover the hours during which the

Employee is on Paid Sick Leave.

5. If the need for paid sick leave is foreseeable, the Employee shall provide reasonable

advance notification. If the need for paid sick leave is unforeseeable, the Employee shall provide

notice of the need for the leave as soon as practicable.

6. An Employer may lend paid sick days to an Employee in advance of accrual, at the

Employer’s discretion and with proper documentation of Paid Sick Leave lent and accrued.

6.7. An Employer may only take reasonable measures to verify or document that an Employee's

use of Paid Sick Leave is lawful, and shall not require an Employee to incur expenses in excess

of $15 in order to show his or her eligibility for such Paid Sick Leave.

7.8. An Employer shall provide payment for sick leave taken by an Employee no later than the

payday for the next regular payroll period after the sick leave was taken.

9. No Employer that is not a Small Business may limit the accrual or use of Paid Sick Leave

except as specified in this Chapter. A Small Business may limit the use of Paid Sick Leave to

48 hours per calendar year.

8. An Employer may limit the use of sick leave to 48 hours per calendar year.

9.10. It shall be unlawful for any Employer to interfere with, restrain, or deny the exercise of, or

the attempt to exercise, any right provided under or in connection with this section, including,

but not limited to, by using the taking of earned sick time under this section as a negative factor

in any employment action such as evaluation, promotion, disciplinary action or termination, or

otherwise subjecting an Employee to discipline for the use of earned sick time under this

section.

10. Employers who provide their Employees paid time off under a paid time off, vacation or

other paid leave policy who make available an amount of paid time off sufficient to meet the

accrual requirements of section A that may be used for the same purposes and under the same

conditions as earned paid sick time under this section are not required by this Chapter to

provide additional earned paid sick time.

13.100.050 Waiver Through Collective Bargaining. To the extent required or allowed by state or federal law, all or any portion of the applicable

requirements of this Chapter may be waived in a bona fide collective bargaining agreement,

provided that such waiver is explicitly set forth in such agreement in clear and unambiguous

terms.

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13.100.060 Notice, Posting and Payroll Records. A. Every Employer shall post in a conspicuous place at any workplace or job site in the City

where any Employee works, the notice published each year by the City informing Employees of

their Paid Sick Leave rights under this Chapter. Every Employer shall post such notices in any

language spoken by at least five percent of the Employees at the work-place or job site. In

instances where an Employee does not have a regular physical location where they perform their

work, the Employer shall provide a copy of the Paid Sick Leave public notice to the Employee

when they are hired or assigned to complete work within the City of Berkeley. The notice shall

be provided to the employee before they commence work within the City limits and must be

provided in the language most easily comprehended by the Employee. Failure to post such notice

shall render the Employer subject to administrative citation pursuant to Section 13.100.080.B of

this Chapter.

B. Employers shall retain payroll records pertaining to Employees for a period of four years,

and shall allow the City access to such records, with appropriate notice and at a mutually agreeable

time, to monitor compliance with the requirements of this Chapter. Where an Employer does not

maintain or retain adequate records documenting accrued paid sick leave or does not allow the

City reasonable access to such records, the Employee’s account of how much he or she was paid

shall be presumed to be accurate, absent clear and convincing evidence otherwise. Furthermore,

failure to maintain such records or to allow the City reasonable access shall render the Employer

subject to administrative citation, pursuant to Section 13.100.080.B of this Chapter. Such records

shall include the amount of hours worked, wages paid, and Paid Sick Leave accrued.

C. If a violation of this Chapter has been finally determined, the City shall require the

Employer to post public notice of the Employer’s failure to comply in a form determined by the

City. Failure to post such notice shall render the Employer subject to administrative citation,

pursuant to Section 13.100.080.B of this Chapter.

D. Reporting of Paid Sick Leave. Employers shall include the number of hours of Paid Sick

Leave accrued to date in such records that they provide to Employees at the end of each pay

period. Failure to provide such records shall render the Employer subject to administrative

citation, pursuant to Section 13.100.080.B, of this Chapter.

13.100.070 Retaliation Prohibited. A. It shall be unlawful for an Employer or any other party to discriminate in any manner or take

any adverse action (including action relating to any term, condition or privilege of employment)

against any person in retaliation for exercising rights protected under this Chapter. Rights

protected under this Chapter include, but are not limited to: the right to accrue and use Paid Sick

Leave as specified; the right to file a complaint or inform any person about any party’s alleged

noncompliance with this Chapter; and the right to inform any person of his or her potential

rights under this Chapter or otherwise educate any person about this Chapter or to assist him or

her in asserting such rights. Protections of this Chapter shall apply to any person who

mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action

against a person within ninety (90) days of the person’s exercise of rights protected under this

Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of

such rights. Failure to comply with this provision shall render the Employer subject to

administrative citation, pursuant to Section 13.100.080.B of this Chapter.

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13.100.080 Implementation and Enforcement. A. The City shall be authorized to coordinate implementation and enforcement of this

Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or

rules promulgated by the Agency shall have the force and effect of law and may be relied on by

employers, employees, and other persons to determine their rights and responsibilities under this

Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient, and cost-

effective implementation of this Chapter, including supplementary procedures for helping to

inform employees of their rights under this Chapter, for monitoring employer compliance with

this Chapter, and for providing administrative hearings to determine whether an employer or other

person has violated the requirements of this Chapter.

B. Where prompt compliance is not forthcoming, the City shall take any appropriate

enforcement action to secure compliance, including but not limited to the following:

1. The City may issue an Administrative Citation pursuant to Chapter 1.28 of the Berkeley

Municipal Code. The amount of this fine shall vary based on the provision of this Chapter being

violated, as specified below:

a. A fine of one thousand dollars ($1,000.00) may be assessed for retaliation by an

Employer against an Employee for exercising rights protected under this Chapter for each

Employee retaliated against.

b. A fine of five hundred dollars ($500.00) may be assessed for any of the

following violations of this Chapter:

i. Failure to post notice of the Paid Sick Leave Ordinance ii.

Failure to provide notice of investigation to Employees

iii. Failure to post notice of violation to public

iv. Failure to maintain payroll records documenting accrual of Paid Sick

Leave for four years; and

v. Failure to allow the City access to payroll records

c. A fine equal to the total amount of appropriate remedies, pursuant to subdivision

B. Any and all money collected in this way that is the rightful property of an Employee, such

as back wages, interest, and civil penalty payments, shall be disbursed by the City in a prompt

manner.

2. The City may initiate a civil action for injunctive relief and damages and civil penalties in a

court of competent jurisdiction.

C. The City or any person aggrieved by a violation of this Chapter, any entity a member of

which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf

of the employee and all other employees affected by the employer’s violations or on behalf of

the public as provided for under applicable state law, may bring a civil action in a court of

competent jurisdiction against the Employer or other person violating this Chapter and, upon

prevailing, shall be awarded reasonable attorneys’ fees and costs and shall be entitled to such legal

or equitable relief as may be appropriate to remedy the violation including, without limitation, the

payment of any back wages unlawfully withheld, the payment of an additional sum as a civil

penalty in the amount of $50 to each Employee or person whose rights under this Chapter were

violated for each day that the violation occurred or continued, reinstatement in employment and/or

injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of

the public as provided for under applicable state law shall, upon prevailing, be entitled only to

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equitable, injunctive or restitutionary relief to Employees, and reasonable attorneys’ fees and

costs.

D. This Section shall not be construed to limit an Employee’s right to bring legal action for a

violation of any other laws concerning wages, hours, or other standards or rights nor shall

exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

E. Except where prohibited by state or federal law, City agencies or departments may revoke

or suspend any registration certificates, permits or licenses held or requested by the Employer

until such time as the violation is remedied. The City shall not renew any such license of an

Employer with outstanding violations, as finally determined under this Chapter, until such time

as the violation is remedied.

F. The remedies for violation of this Chapter include but are not limited to:

1. The issuance of Paid Sick Leave time unlawfully withheld.

2. Reimbursement of the City’s administrative costs of enforcement and reasonable

attorney’s fees.

3. If a repeated violation of this Chapter has been finally determined, the City may require

the Employer to pay an additional sum as a civil penalty in the amount of $50 to the City for each

Employee or person whose rights under this Chapter were violated for each day or portion thereof

that the violation occurred or continued, and fines imposed pursuant to other provisions of this

Code or state law.

G. The remedies, penalties and procedures provided under this Chapter are cumulative and

are not intended to be exclusive of any other available remedies, penalties and procedures

established by law which may be pursued to address violations of this Chapter. Actions taken

pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal,

that may be brought to abate a violation or to seek compensation for damages suffered.

13.100.090 City Undertaking Limited Promotion of General Welfare. In undertaking the adoption and enforcement of this Chapter, the City is undertaking only to

promote the general welfare. The City is not assuming, nor is it imposing on its officers and

employees, an obligation for breach of which it is liable in money damages to any person who

claims that such breach proximately caused injury. This Chapter does not create a legally

enforceable right by any member of the public against the City.

13.100.100 Severability. If any part or provision of this Chapter, or the application of this Chapter to any person or

circumstance, is held invalid, the remainder of this Chapter, including the application of such

part or provision to other persons or circumstances, shall not be affected by such a holding and

shall continue in full force and effect. To this end, the provisions of this Chapter are severable.

13.100.110 Other Legal Requirements. This Chapter provides minimum requirements pertaining to paid sick leave and shall not be

construed to preempt, limit, or otherwise affect the applicability of any other law, regulation,

requirement, policy, or standard that provides for greater accrual or use by employees of sick

leave, whether paid or unpaid, or that extends other protections to employees.

13.100.120 More Generous Employer Leave Policies.

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This Chapter provides minimum requirements pertaining to paid sick leave and shall not be

construed to prevent employers from adopting or retaining leave policies that are more generous

than policies that comply with this Chapter. Employers are encouraged to provide more

generous leave policies than required by this Chapter.

Section X. Copies of this Ordinance shall be posted for two days prior to adoption in the display

case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way.

Within fifteen days of adoption, copies of this Ordinance shall be filed at each branch of the

Berkeley Public Library and the title shall be published in a newspaper of general circulation.

Section 4. Conflicting Measures.

This measure is intended to be comprehensive and fully address and occupy the field of the

minimum wage and related employee benefits such as paid sick leave. It is the intent of the

people of the City of Berkeley that in the event this measure and any other measure relating to

the same field, appear on the same ballot, the provisions of the other measure shall be deemed in

their entirety to be in conflict with this measure. If this measure receives a greater number of

affirmative votes than any conflicting measure or measures, this measure shall prevail in its

entirety, and all provisions of such other measure or measures shall be null and void in their

entirety. If this measure is approved by the voters but does not receive a greater number of

affirmative votes than any other measure(s) appearing on the same ballot relating to the same

field, then this measure shall take effect to the extent not in conflict with said other measure(s).

Section 5. Amendment by City Council.

The City Council, by a two-thirds vote, may amend Chapter 13.100 to implement and further its

purpose, and not in a manner that reduces either the minimum wage levels or the provisions

relating to service charges that have been adopted by the voters.

Section 6. Severability.

If any word, phrase, sentence, part, section, subsection, or other portion of this ordinance, or any

application thereof to any person or circumstance is declared void, unconstitutional, or invalid

for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or

the prescribed application thereof, shall be severable, and the remaining provisions of this

chapter, and all applications thereof, not having been declared void, unconstitutional or invalid,

shall remain in full force and effect. The People of the City of Berkeley hereby declare that they

would have passed this ordinance, and each section, subsection, sentence, clause and phrase

thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or

phrases had been declared invalid or unconstitutional.

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Kriss WorthingtonCouncilmember, City of Berkeley, District 7

2180 Milvia Street, 5th Floor, Berkeley, CA 94704

PHONE 510-981-7170 FAX 510-981-7177 [email protected]

ACTION CALENDARSeptember 13, 2016

(Continued from July 12, 2016)


Subject: Approve the A.C. Transit “Southside Pilot Project” for Transit Improvements

RECOMMENDATION:Approve the AC Transit “Southside Pilot Project” for transit improvements.

BACKGROUNDOn July 16, 2016 Berkeley’s Transportation Commission unanimously voted that the Council move forward with the A.C. Transit “Southside Pilot Project”. The Southside Pilot Project is a proposal to test new striping configurations in the Southside area to improve bicycle and transit access and mobility. The project would be implemented with low-cost, low-impact materials such as paint and plastic bollards with robust public engagement. A successful pilot project will demonstrate to ACTC that the Southside Plan is a competitive project for transportation funding.

On May 12, 2016, the City of Berkeley installed new bicycle lanes on Fulton Street between Bancroft Way and Channing Way.

In summer 2016, the City of Berkeley will break ground on the Hearst Avenue Complete Streets Project to install bicycle lanes and transit islands on Hearst Avenue, and they will submit a prioritized list of transportation projects to the Alameda County Transportation Commission (ACTC) for funding consideration.

In 2017, the City of Berkeley will repave Bancroft Way between Dana Street and Fulton Street. Striping plans for this repaved section of Bancroft Way must be finalized by October or November, 2016.


ENVIRONMENTAL SUSTAINABILITY:Consistent with Berkeley’s Environmental Sustainability Goals and one of the most important environmental statewide policies.

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CONTACT PERSON Councilmember Kriss Worthington 510-981-7170

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Martin Luther King Jr. Civic Center Building ● 2180 Milvia Street, 5th Floor, Berkeley, CA 94704 ● Tel: (510) 981-7140Fax: (510) 981-7144 ● TDD: (510) 981-6903 ● E-Mail: [email protected] ● Web: www.jessearreguin.com




From: Councilmembers Jesse Arreguín, Laurie Capitelli, and Linda Maio

Subject: Opposition to Business License Tax Initiative Sponsored by Large Landlords

RECOMMENDATIONOppose the ballot initiative “Increasing Business License Tax on Residential Rentals and Authorizing the City Council to Establish a New Legislative Body to Advise the Council on Affordable Housing and Homelessness”, sponsored by the Berkeley Property Owners Association (BPOA), which would raise significantly less funding for city services, including affordable housing and homeless prevention.

BACKGROUNDEconomic studies show that since the implementation of vacancy decontrol in 1999 there has been a significant transfer of income from tenants to landlords. Real inflation-adjusted rents have gone up by more than 50%, which means that tenants are paying landlords an extra $120 million a year over and above increases necessary for owners to make a fair return on their property. This is resulting in skyrocketing rents and renters paying a larger percentage of their income for housing. In many cases these windfall profits have not been reinvested in properties to increase habitability and address housing code issues. Rising rents are creating a housing affordability crisis which threatens our economic and cultural diversity, and increases homelessness.

On May 31, 2016, the City Council unanimously placed a fair and progressive business license tax increase on the November ballot. The measure comes after years of discussion with affordable housing developers, housing advocates, homeless service providers, student leaders and Commissioners. The Council-sponsored tax measure would raise the business license tax on rental housing of five or more units from the current level of 1.08% to 2.88% of gross receipts. That results in an increase of about $30 per unit, per month, and is projected to raise up to $5 million annually. That amount could help create roughly 400 truly affordable homes in Berkeley over the next 10 years and also fund emergency rental assistance.

The Council-sponsored measure: Focuses specifically on larger property owners (owners of five units or more) who

have benefited the most from rising rents. Exemptions also include:

o units with historically low rents,

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o units rented to low-income tenants receiving Section 8 rental assistance, who otherwise have difficulty finding housing, and

o new buildings would be exempted from paying the fee for 12 years after construction is completed so as not to discourage new construction.

Explicitly states that the increase in fees CANNOT be passed on to sitting tenants in the form of increased rents.

Charges the Housing Advisory Commission with advising the Council on how best to spend new revenue to meet Berkeley’s housing needs.

In response to the community generated Measure, the Berkeley Property Owners Association circulated an initiative to also increase the business license tax on rental housing. The BPOA sponsored measure was specifically designed to replace a measure, generated by the community and approved by the City Council that would raise more funds and exempt owners of small properties. The BPOA measure has the following provisions: Tax ALL landlords, including small property owners.

Not exempt units with historically low rents, units under Section 8 and new construction.

Increase the business license tax only by 0.419% which would generate only $1.4 million a year, significantly less than the Council measure.

The BPOA intentionally put a similar business license tax measure on the November ballot with the likely goal of confusing voters. Both ballot measures are a general tax and need a simple majority to pass. In the event that both pass, the measure with the most votes would take effect. FINANCIAL IMPLICATIONSNone


CONTACT PERSON:Jesse Arreguin, Councilmember, District 4 510-981-7140Laurie Capitelli, Councilmember, District 5 510-981-7150Linda Maio, Councilmember, District 1 510-981-7110

Attachments:1. Business License Tax Increase Comparison

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Comparison of Increases in Business License Tax on Gross Receipts

From Residential Rental Property

Council Proposal Landlord Initiative

Current tax rate 1.081% 1.081%

Amount of increase 1.799% 0.419%

Total tax after increase 2.88% 1.5%

Average Increase

per unit per month $28.90 $6.75

Current tax receipts from

residential rentals $3,500,000 $3,500,000

Estimated New Revenue $5,000,000 $1,400,000

Estimated Total Revenue $8,500,000 $4,900,000

(new + current receipts: Landlords claim their measure raises $5 million a year

but they are including current receipts while the Council measure raises $5 million

in new revenue.)

Current exemptions 1 & 2 unit properties 1 & 2 unit properties

Exemptions from increase

Small landlords 3 & 4 units No

Section 8 Yes No

Shelter + Care Yes No

No vacancy increase Yes No

(exempts income from pre-1999 tenancies, inclusionary units)

New construction 12 years after Cert. Occupancy No

Hardship Yes Yes

Affordable units will

develop annually 45 12

Substantial affordable One every year One every 4 years

housing projects funded

Attachment 1

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Subject: Labor Commission Referral: Housing Wage for Major Residential Mix-Use Projects

RECOMMENDATION: Refer to the Labor Commission to develop an ordinance to create a housing wage for major residential mix-use projects.

BACKGROUND: There is a gigantic gap between the wages of people who build housing in Berkeley and the ability to afford the rising cost of housing in Berkeley. While the City has undergone an explosion of housing development, the people building new housing are frequently unable to afford the housing they build.

FINANCIAL IMPLICATIONS: Unknown.

ENVIRONMENTAL SUSTAINABILITY: Consistent with Berkeley’s Environmental Sustainability Goals and no negative impact.


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Kriss Worthington Councilmember, City of Berkeley, District 7 2180 Milvia Street, 5th Floor, Berkeley, CA 94704 PHONE 510-981-7170, FAX 510-981-7177, EMAIL [email protected]

ITEM #I ACTION CALENDAR

July 19, 2016 To: Honorable Mayor and Members of the City Council From: Councilmembers Kriss Worthington Subject: Ballot Measure to Increase Police Accountability – And Calling a Special

City Council Meeting Recommendation: Refer to the City Manager and City Attorney to direct staff to review Oakland Charter reform language for a Measure to amend the City Charter to increase police accountability to be placed on the November 8 2016 ballot. In addition, incorporate the Berkeley Fair Representation Ordinance, initiate the meet and confer process and bring back revised language to a special City Council meeting in time to meet the Secretary of State and Registrar of Voters deadline for a November ballot measure. Consider including the PRC recommendation that will need to be done by a Charter Amendment. Background: The City of Oakland is voting today on a similar proposal. By calling a special meeting it will allow the staff to consider any amendments incorporate or proposed for the Oakland measure. Berkeley and Oakland both having Charter Amendments at the same time will help establish a regional standard of expectation on police accountability and reform. Police accountability reform is currently sweeping the nation as an answer to civil rights movements and community demands. The City of Berkeley recently created new regular reports; for example on January 26, 2015 the Police Department began collecting data pursuant to General Order B-4, Fair and Impartial Policing Policy. The Oakland Charter Amendment has been reviewed by multiple attorneys and modified with suggestions from multiple elected officials to seek to codify best practices in contemporary Police reform The U.S Department of Justice’s Office of Community Oriented Policy Services, COPS, has completed an assessment of the best policies and practices for preventing, detecting and investigation misconduct. These reports serve as blueprints for reforms and build on the reform efforts already undertaken. CONTACT PERSON: Councilmember Kriss Worthington 510-981-7170

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ITEM #6 ACTION CALENDAR

July 7, 2016 To: Honorable Mayor and Members of the City Council From: Councilmembers Kriss Worthington Subject: Ballot Measure to Increase Police Accountability - Additional Information ADDITIONAL INFORMATION: In the original June 14 Item, we included for information purposes a copy of an Oakland City Council proposal. Because the Oakland city council has had significant discussion about these issues there have been multiple new draft forwards. We are sharing the latest draft and an additional compromise version that have been submitted. The Agenda Report has highlighted text in yellow and blue. The text highlighted in yellow is the preferred language that could be added to Berkeley’s Police Review Commission Ordinance. This language is similar to one that was proposed by the PRC. The text highlighted in blue in the Agenda Report document is the wording similar to the policy changes that Councilmember Worthington’s office is proposing. These changes in wording and language are necessary in order to ensure police accountability and guarantee fair treatment for the Berkeley community. In addition to this, the “Police Commission Requested Amendment’ Document contains an amendment that is being proposed by Vice Mayor Annie Campell Washington, City Councilmember Abel Guilen, and President Pro Tempore Larry E. Reid. There is an added amendment section titled “Section 7: Community Engagement” that we feel should be added in the Berkeley Police Review Commission Ordinance. Establishing community engagement and facilitating dialogue between the Commission and the community is essential for building community trust. In response to community concern, Oakland City Councilmembers has proposed two potential models of how to do a charter amendment. They have set a great example of police accountability reform. We are sharing these to show examples to consider for Berkeley taking reform actions. It is highly encouraged that Berkeley takes action to reform Berkeley's Police Review Commission to make police accountability a priority to be strengthened. CONTACT PERSON: Councilmember Kriss Worthington 510-981-7170 Attachments: 1. Agenda Report including The Police Commission Charter Amendment Measure

and Companion Ordinance dated June 2, 2016 2) The Police Commission Requested Amendments to the Agenda Report. 3) Latest Police Commission Charter that will be voted at the next Oakland Council

meeting

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AGENDA REPORT CITY OF OAKLAND

TO: Chair Desley Brooks, other City Councilmembers, and members of the Public

FROM: Noel Gallo and Dan Kalb Councilmembers

SUBJECT: Police Commission Charter Amendment Measure and Companion Ordinance

DATE: June 2, 2016

RECOMMENDATION

ADOPT A RESOLUTION ON THE CITY COUNCIL'S OWN MOTION SUBMITTING TO THE VOTERS AT THE NOVEMBER 8, 2016 STATEWIDE GENERAL ELECTION 1) A PROPOSED AMENDMENT TO THE CITY CHARTER TO CREATE THE OAKLAND POLICE COMMISSION, THE COMMUNITY POLICE REVIEW AGENCY, AND A PROCESS FOR POLICE DISCIPLINE AND 2) A PROPOSED ENABLING ORDINANCE RELATING TO THE OAKLAND POLICE COMMISSION AND THE COMMUNITY POLICE REVIEW AGENCY, AND DIRECTING THE CITY CLERK TO TAKE ANY AND ALL ACTIONS NECESSARY UNDER LAW TO PREPARE FOR AND CONDUCT THE ELECTION

SUMMARY

This legislation is being offered to enhance police accountability and improve public trust in Oakland's police department. The legislation consists of a ballot measure that is proposed to be placed before the voters for this year's November election. The primary component of the measure is a Charter Amendment which would establish a police commission that balances independence with checks and balances. The Charter Amendment:

� Establishes a 7member Police Commission and provides its role, powers, duties, and parameters for meetings, rules, and procedures;

� Provides the law governing Police Commissioner appointment, terms, vacancy, and removal, including that three Commissioners would be appointed by the Mayor and 4 by a 9member Selection Panel appointed by the City Council and Mayor, with all Commissioners subject to Council confirmation;

� Empowers the Police Commission to (1) oversee the Police Department and (2) review and comment on Department policies, procedures, customs, and General Orders, as well as propose, amend, or reject changes to the latter if governing particular issues (use of force, use of force review boards, profiling based on any protected characteristics, First Amendment assemblies), provided however that any changes made by the Commission to the Chief of Police's policy decisions may be overruled by the City Council;

� Requires annual reporting by the Chief and the Commission;

Item: Public Safety Committee

June 14, 2016 138

Councilmembers Noel Gallo & Dan Kalb Subject: Police Commission Charter Amendment Measure Date: June 2, 2016 Page 2

� Both empowers and makes more accountable the Chief of Police, by changing hiring, firing and supervision as follows:

(1) In lieu of hiring by the City Administrator, the Chief is hired by the Mayor from a list of recommendations vetted by the Commission;

(2) In lieu of supervision by the City Administrator, the Chief reports to both the Mayor and the Commission;

(3) In lieu of the City Administrator being able to terminate the Chief at will, the Commission, by a vote of 5 or more Commissioners, may terminate the Chief for cause, or the Mayor may terminate the Chief at will;

(4) Replaces the imposition of final discipline of sworn officers by the City Administrator to final discipline as determined by the Chief, subject to further discipline reform provisions described below;

� Disbands the Citizen's Police Review Board and reassigns its staff to a new Community Police Review Agency, with the Executive Director of the Board becoming the new (Interim) Director of the Agency;

� Requires Agency staffing to include no fewer than one line investigator for every one hundred sworn officers, with at least one being a licensed attorney;this budget setaside may be suspended only if there is an extreme fiscal necessity as determined by City Council resolution;

� Requires additional staffing, including assignment of one fulltime equivalent Deputy City Attorney to the Agency and the hiring of a new civilian Inspector General that reports directly to the Commission, subject to the same hiring and removal provisions as the Agency Director;

� Requires background checks for all Agency investigators; � Prohibits current or former sworn OPD employees, and current or former employees,

officials, and representatives of employee associations representing sworn police officers from holding staff positions in the Agency or the Commission;

� Empowers the Agency to conduct investigations of complaints of police misconduct, allows the Commission to direct the Agency to initiate such investigations, and mandates that Agency must investigate all complaints of misconduct involving use of force, incustody deaths, profiling based on protected characteristics, and First Amendment assemblies;

� When reasonable belief exists that a sworn OPD employee has committed a crime, requires the Agency, after consultation with the Commission, to forward the information to the Alameda County District Attorney;

� With regard to investigations, requires the Agency to forward complaints to OPD's Internal Affairs Division, provides the Agency with the same access to City records as Internal Affairs, and empowers the Agency, upon completion of an investigation, to independently make findings and propose discipline;

� Establishes a police discipline process that consists of the following: (1) If the Chief agrees with the Agency findings and proposed discipline, he or she shall

notify the officer of the intent to impose discipline; (2) If the Chief disagrees with the Agency, the disagreement shall be submitted to a

rotating Discipline Committee comprised of three Commissioners, which shall resolve the dispute between the Chiefs and Agency's findings and proposed discipline, after which the Chief shall notify the Officer of the discipline;

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(3) Eliminates binding arbitration as the final method for officers to appeal discipline, where, after imposition of discipline has become final, the subject officer may instead appeal the discipline to the Commission as adjudicatory body, and empowers the Commission to employ hearing officers to conduct the evidentiary hearings; [Note: We have submitted in the packet an alternate adjudication section that allows for appeals by arbitration if identified in a collective bargaining MOU.]

(4) Establishes a preponderance of the evidence standard of proof for establishing that discipline is warranted;

(5) Requires evidence sharing between the City and the union representatives of the subject officer;

(6) Permits the Commission to offer alternative dispute resolution. � Enables the City Council to establish enabling legislation, after a comment period

provided to the Commission.

In addition, the Charter proposal includes an alternate adjudication section that allows for arbitration, but with the arbitrator pool being selected by the Commission.

Furthermore, the measure includes a companion enabling ordinance for the new Charter section, which consists of two new Municipal Code Sections, one for the Police Commission and the other for the Community Police Review Agency.

BACKGROUND I LEGISLATIVE HISTORY

On April 15, 1980, the City Council established the Citizens' Police Review Board ("CPRB") with jurisdiction to review certain complaints alleging Oakland Police Department officer and park ranger misconduct, to conduct factfinding investigations, and to make advisory reports to the City Administrator. On July 30, 1996, the City Council expanded the CPRB's jurisdiction to include complaints involving the excessive use of force, and bias based on an individual's legally protected status (race, gender, national origin, religion, sexual orientation or disability). In 2002, the City Council further expanded the CPRB's jurisdiction to include all complaints filed against police officers and park rangers, and expanded the Board's size from nine (9) members to twelve (12) members. The City Council also granted the CPRB the option of holding evidentiary hearings using threemember panels and permitted Board members to review confidential Oakland Police Department ("OPD")) records in closed session. On November 12, 2002, the City Council passed Ordinance No. 12454 C.M.S., which further refined the CPRB's powers to include making recommendations to the City Administrator regarding litigated cases, and enlarged the amount of time for the CPRB to complete its investigations. The CPRB is not empowered to oversee OPD policy, impose discipline or adjudicate disciplinary appeals; and

In January 2003, the City entered into a negotiated settlement agreement ("NSA") with multiple plaintiffs who sued the City, alleging that OPD officers violated plaintiffs' civil rights. Since implementation of the NSA, a federal monitoring team has audited and continues to audit OPD's progress in complying with each of the fiftyone (51) tasks identified in the NSA; and

Public perception persists that OPD is insufficiently transparent and does not effectively hold its officers accountable, as indicated in part by the Coalition for Police Accountability's February 8, 2016 notice of intent to circulate a petition for placing before the voters an initiative to amend the


June 14, 2016 140


City Charter "for the purpose of creating a more robust and credible system of holding the Oakland Police Department accountable for providing the highest level of service to the residents of Oakland." The public perception that OPD and the City do not effectively hold its officers accountable stems, in part, from the inconsistent and unpredictable results obtained in police officer discipline proceedings under the current administrative appeal process. Such varied results lead to an erosion of public trust in this process.

According to the City Attorney's "First Quarterly Report from the City Attorney Regarding Recent Arbitration Decisions, Efforts to Support the Police Discipline Process, and Recent Developments in Police Discipline" (May 17, 2016), there have been 15 binding arbitration decisions in police discipline cases since December 30, 2014. Of those 15 cases, only 7 resulted in the City's discipline being upheld and, in both cases in which the City terminated an officer, the City's discipline was overturned and changed to only a suspension. The report cites to a November 21, 2014 Wall Street Journal report noting that, nationwide, police officers win reversals or modifications in more than 60% of the disciplinary cases that go to arbitration.

ANALYSIS

While complaints against Oakland officers decreased in the wake of Oakland's early adoption of a body worn camera program and OPD has made notable progress in recent years regarding compliance with certain NSA requirements, public mistrust in our police force remains significant and there are still challenges that need to be addressed.

There is widespread belief/both in Oakland, the greater Bay Area, and across the state and the country, that police officers are frequently not held accountable for misconduct. Maintaining public trust and confidence in OPD is necessary for the Department to be able to provide the highest level of service to the community. In order to increase the public trust and confidence in OPD, improvements should be made to the processes for providing OPD oversight and accountability.

Appointing qualified members of the public to a Police Commission, entrusting the Commission with oversight of OPD, and requiring the Commission to hold public hearings on policy matters, would increase public transparency, which in turn would build a higher level of trust and confidence in the services provided by OPD. In addition, Oakland's residents and police officers alike deserve the most thorough and fair system possible for adjudicating administrative appeals of police discipline decisions so that the results of such appeals are as predictable and consistent as possible. Such an appeals process would also build a higher level of trust and confidence in the services provided by the Department.

Major cities across the country, such as New York City, Los Angeles, and San Francisco, have civilian police commissions with varying degrees of oversight authority over their police departments. In recent years, more and more law enforcement jurisdictions have involved citizens in their review systems, and highly publicized incidents of alleged or actual police misconduct and the yearsinthemaking widespread public outrage over police misconduct, especially in African American communities, has brought the issue of citizen oversight to center stage in the United States.


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The National Association for Civilian Oversight of Law Enforcement, a nonprofit trade association dedicated to promoting greater police accountability through the establishment or improvement of citizen oversight agencies, provides various resources on its website, including recommended standards and practices, which include the Police Oversight Principles of European Partners Against Corruption, which provides numerous recommendations for police oversight bodies including that they:

(1) have independence from the executive branch of government; (2) are sufficiently separate from the hierarchy of the police subject to their oversight; (3) are governed by persons who are not currently serving as police officers; (4) have adequate finances and resources to perform their functions; (5) have full investigative powers regarding police misconduct allegations; and (6) are representative of a diverse population.

In Oakland, the Chief of the Police oversees OPD and in turn is hired and can be fired by the City Administrator, who in turn is hired and can be fired by the Mayor. In addition, when the City, via the Chief of the Police as approved by the City Administrator, imposes discipline against an officer, the officer may appeal the discipline to binding arbitration. The Memorandum of Understanding for the Oakland Police Officers' Association (OPOA) has long provided that final discipline imposed by the Chief of the Police and the City Administrator may be appealed to binding arbitration.

In light of the above, the recommended legislation has the objectives of:

(a) providing a civilian Commission comprised of residents with significant policy authority over OPD in areas of heightened public concern (use of force, First Amendment assemblies, etc.), balanced with a check by the democratically accountable'City Council;

(b) providing supervisory authority over the Chief, balanced with direct supervision by the Mayor, including, upon a vacancy, recommending a list of candidates to the Mayor for hiring, and having the Mayor and the Commission both being able to fire the Chief, but the Commission being able to do so only for cause and if approved by a supermajority of the Commission;

(c) providing a Commissioner selection model that is not dominated by one particular elected official;

(d) enhancing real time transparency of final appeal decisions in police discipline cases; (e) transferring the staff of the advisory CPRB into an agency with investigatory authority

concurrent with and equivalent to that of OPD Internal Affairs and with enhanced independence from the main City hierarchy; and

(f) reform of the appeals process for police discipline.

The major reforms of the police discipline process that this legislation would achieve are:

(a) establishing the evidence standard of proof that the City must meet to impose discipline to be preponderance of the evidence (currently, application of this standard in the arbitration process is vague and subject to inconsistent application between different arbitrators);


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(b) mandating evidence sharing between the City and the OPOA in discipline appeals cases; and

(c) replacing binding arbitration process with appeals to the Police Commission as the adjudicatory body**.

**ln addition, the proposal includes an alternate appeal process that would allow retention of binding arbitration but where the Police Commission selects the arbitrator pool. Requiring final appeals to be heard directly by either a Police Commission or arbitrators selected by a Police Commission, rather than a list of arbitrators mutually selected or negotiated by the City Attorney's office and the OPOA, provides an adjudicatory system that is much closer to the judicial model and more accountable to the general public.

Establishment of an Oakland Police Commission that is not entirely composed of appointees of the Mayor, changing supervision of the Chief of Police, and implementing lasting reform of the police discipline system that cannot be summarily eliminated by future City Councils each necessitate placing a Charter Amendment before the voters. In addition, the legislation includes enabling ordinances for the Police Commission and Community Police Review Agency, which includes technical implementation procedures for the new body and agency that are best reserved for the municipal code and may require enhancements by the City Council over time. These ordinances are also included for voter approval because they are contingent upon passage of the Charter Amendment and provide assurance to the voters that new system will include robust fulfillment of the new Charter provisions.

FISCAL IMPACT

In addition to onetime costs from placing the measure on the ballot and some intermittent training costs for new Commissioners, the legislation would result in additional ongoing staff costs associated with the hiring of 5 full time staff, including: (1) civilian Inspector General; (2) Deputy City Attorney; (3) Police Auditor; and (4) two more investigators above the number currently budgeted for the CPRB. .

Overall long term savings are anticipated, due to (1) increased police accountability reducing police misconduct lawsuits and (2) enhanced community oversight institutionalizing gains from the NSA as well as accelerating completion of the NSA and the resulting cessation of the City's costs from the ongoing judicial oversight.

PUBLIC OUTREACH I INTEREST

The development of the legislation was initiated at the request of the Coalition for Police Accountability. The Coalition includes a diverse array of local community organizations and leaders. The Coalition was consulted with in the development of the legislation. Input on the details of the legislation was also obtained from representatives of the Oakland Police Officers' Association and Make Oakland Better Now, as well as from individual residents who expressed interest in this important topic.


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COORDINATION

The City Attorney's office was extensively consulted in the development of the legislation. The authors of the legislation also obtained input and/or information relevant to the legislation from the Executive Director of the CPRB, Chief of Police, City Administrator, and Mayor.

SUSTAINABLE OPPORTUNITIES

Economic. There are no significant economic opportunities associated with this report.

Environmental: There are no environmental opportunities associated with this report.

Social Equity: Establishment of a Police Commission would result in increased civilian oversight of the Police Department and provide more access to residents for providing input on police matters. Providing increased accountability in the police discipline process is responsive to widespread, repeated requests from the public for reform, especially from disadvantaged communities with a history of extensive police contact.

For questions regarding this report, please contact Oliver Luby, Policy Manager, at 5102387013.

Respectfully submitted

Noel Gallo Councilmember, District 5

Dan Kalb Councilmember, District 1


June 14, 2016 144

Councilmembers Noel Gallo & Dan Kalb Subject: Police Commission Charter Amendment Measure Date: June 2,2016 Page 8

Prepared by: Oliver Luby, Policy Manager Office of Councilmember Dan Kalb

Attachment:

How Can Civilian Oversight Of Law Enforcement Help You? (Infographic); National Association for Civilian Oversight of Law Enforcement


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OAKLAND CITY COUNCIL

RESOLUTION NO. C.M.S. INTRODUCED BY COUNCILMEMBERS NOEL GALLO AND DAN KALB

ADOPT A RESOLUTION ON THE CITY COUNCIL'S OWN MOTION SUBMITTING TO THE VOTERS AT THE NOVEMBER 8, 2016 STATEWIDE GENERAL ELECTION 1) A PROPOSED AMENDMENT TO THE CITY CHARTER TO CREATE THE OAKLAND POLICE COMMISSION, THE COMMUNITY POLICE REVIEW AGENCY, AND A PROCESS FOR POLICE DISCIPLINE, AND 2) A PROPOSED ENABLING ORDINANCE RELATING TO THE OAKLAND POLICE COMMISSION AND THE COMMUNITY POLICE REVIEW AGENCY, AND DIRECTING THE CITY CLERK TO TAKE ANY AND ALL ACTIONS NECESSARY UNDER LAW TO PREPARE FOR AND CONDUCT THE ELECTION

WHEREAS, on April 15, 1980, the City Council established the Citizens' Police Review Board (hereinafter, Board) with jurisdiction to review certain complaints alleging Oakland Police Department officer and park ranger misconduct, to conduct factfinding investigations, and to make advisory reports to the City Administrator. On July 30, 1996, the City Council expanded the Board's jurisdiction to include complaints involving the excessive use of force, and bias based on an individual's legally protected status (race, gender, national origin, religion, sexual orientation or disability). In 2002, the City Council further expanded the Board's jurisdiction to include all complaints filed against police officers and park rangers, and expanded the Board's size from nine (9) members to twelve (12) members. The City Council also granted the Board the option of holding evidentiary hearings using threemember panels and permitted Board members to review confidential Oakland Police Department (hereinafter, Department) records in closed session. On November 12, 2002, the City Council passed Ordinance No. 12454 C.M.S., which further refined the Board's powers to include making recommendations to the City Administrator regarding litigated cases, and enlarged the amount of time for the Board to complete its investigations. The Board, however, is not empowered to oversee Department policy, impose discipline or adjudicate disciplinary appeals; and

WHEREAS, in January 2003, the City entered into a Negotiated Settlement Agreement (hereinafter, NSA) with multiple plaintiffs who sued the City, alleging that Police Department officers violated plaintiffs' civil rights. Since implementation of the NSA, a federal monitoring team has audited and continues to audit the Department's progress in complying with each of the fiftyone (51) tasks identified in the NSA; and

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WHEREAS, while some important progress has been made in recent years, public perception persists that the Department and the City do not adequately hold its officers accountable for misconduct, as indicated, in part, by a February 8, 2016 notice of intent to circulate a petition for placing before the voters an initiative to amend the City Charter "for the purpose of creating a more robust and credible system of holding the Oakland Police Department accountable for providing the highest level of service to the residents of Oakland." The public perception that the Department does not effectively hold its officers accountable stems, in part, from the inconsistent and unpredictable results obtained in police officer discipline proceedings under the current administrative appeal process; moreover, such varied results lead to an erosion of public trust in this process; and

WHEREAS, maintaining public trust and confidence in the Police Department is essential for the Department to be able to provide the highest level of service to the community. In order to increase the public trust and confidence in the Department, improvements should be made to the processes for providing Department oversight and accountability. Appointing qualified members of the public to a Police Commission (hereinafter, Commission), entrusting the Commission with oversight of the Department and requiring the Commission to hold public hearings all would increase public transparency, which in turn would build a higher level of trust and confidence in the services provided by the Department. In addition, Oakland's residents and police officers alike deserve the most thorough and fair system possible for adjudicating allegations of misconduct and related administrative appeals of police discipline decisions so that the results of such appeals are as consistent as possible. Such an appeals process would also build a higher level of trust and confidence in the services provided by the Department; and

WHEREAS, major cities across the country, including New York City, Los Angeles, and San Francisco, as well as mediumsize cities such as Berkeley, Albuquerque, and Honolulu have civilian police commissions with varying degrees of oversight authority over their police departments. In recent years, more and more municipal jurisdictions have involved citizens in their law enforcement review systems, and highly publicized incidents of alleged or actual police misconduct and the yearsinthemaking widespread public outrage over police misconduct, especially in African American communities, has brought the issue of civilian oversight to center stage in the United States; and

WHEREAS, The National Association for Civilian Oversight of Law Enforcement, a nonprofit organization dedicated to promoting greater police accountability through the establishment or improvement of citizen oversight agencies, provides various resources on its website, including recommended standards and practices, which include the Police Oversight Principles of European Partners Against Corruption, which provides numerous recommendations for police oversight bodies including that they: (1) have independence from the executive branch of government; (2) are sufficiently separate from the hierarchy of the police subject to their oversight; (3) are governed by persons who are not currently serving as police officers; (4) have adequate finances and

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resources to perform their functions; (5) have full investigative powers regarding police misconduct allegations; and (6) are representative of a diverse population; and

WHEREAS, while the Department currently has an inhouse sworn Inspector General, one of the best practices models for ongoing oversight of police discipline can be found in the City of Los Angeles' Office of Inspector General. The L.A. Inspector General is a civilian who is charged with conducting systemic reviews of the disciplinary process and reports directly to the City of Los Angeles' Police Commission to ensure a necessary level of independence. The creation of a civilian Inspector General reporting to the Commission came from the Christopher Warren Commission reforms following the protests and riots stemming in part from the Rodney King jury verdict.

WHEREAS, the Charters of Los Angeles and San Francisco eliminate binding arbitration proceedings for discipline of police officers, providing an alternate process where appeals are brought before a Commission overseeing the police department; and

WHEREAS, two reports by courtappointed investigator Edward Swanson recommended reforms including changes to the arbitration process and procedures;

WHEREAS, while creating a Police Commission and providing muchneeded reforms to and oversight of the police disciplinary process will enhance accountability and improve the public's trust, it is equally important that these accountability measures and structure be adopted and implemented with appropriate checks and balances; therefore, be it

RESOLVED: That the City Council hereby authorizes and directs the City Clerk, at least 88 days prior to the next general municipal election date, to file with the Alameda County Board of Supervisors and the Registrar of Voters certified copies of this resolution; and be it

FURTHER RESOLVED: That the City Council intends for this proposed Amendment to Article VI of the Charter, Section 604, together with the companion enabling ordinance, to comprehensively address independent oversight of the Oakland Police Department, with appropriate checks and balances, and reforms to the police officer discipline process; and be it

FURTHER RESOLVED: That the City Charter and Oakland Municipal Code hereby are amended, to add, delete, or modify sections as set forth below (section numbers and titles are indicated in capitalized bold type; additions are indicated by underscoring, deletions are indicated by strikethrough type; portions of the provisions not cited or not shown in underscoring or strikethrough type are not changed); and be it

FURTHER RESOLVED: That the proposed Charter Amendment text shall be as follows:

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SECTION 604 POLICE COMMISSION

(a) Creation and Role.

1. There is hereby established the Oakland Police Commission (hereinafter. Commission), which shall oversee the Oakland Police Department (hereinafter. Department) in order to ensure that its policies, practices, and customs conform to national standards of constitutional policing. The Commission shall have the functions and duties enumerated in this Section, as well as those assigned to the Commission by Ordinance.

2. There is hereby established a Community Police Review Agency (hereinafter. Agency), which shall have the functions and duties enumerated in this Section, as well as those assigned to the Agency by Ordinance.

3. Nothing herein shall prohibit the Chief of Police or a commanding officer from investigating the conduct of a Department sworn employee under his or her command, nor shall anything herein prohibit the Chief of Police from taking disciplinary or corrective action with respect to complaints investigated solely by the Department.

4. No later than two (2) years after the City Council has confirmed the first set of Commissioners and alternates, the City Auditor shall conduct a performance audit and a financial audit of the Commission and the Agency. Nothing herein shall limit the City Auditor's authority to conduct future performance and financial audits of the Commission and the Agency.

(b) Powers and Duties.

The powers and duties of the Commission are as follows:

1. Organize, reorganize and oversee the Agency.

2. Conduct public hearings at least once a year on Department policies, rules, practices, customs, and General Orders. The Commission shall determine which Department policies, rules, practices, customs, or General Orders shall be the subject of the hearing.

3. Propose changes, including modifications to the Department's proposed changes, to any policy, procedure, custom, or General Order of the Department which governs use of force, use of force review boards, profiling based on any of the protected characteristics identified by federal, state, or local law, or First Amendment assemblies. All such proposed changes and modifications shall be submitted to the City Council for approval or rejection. If the City Council does not approve, modify and approve, or reject the Commission's proposed changes or modifications within one hundred and twenty (120) days of the Commission's vote on the proposed changes, the changes or modifications will become final.

4. Approve or reject the Department's proposed changes to all policies, procedures, customs, and General Orders of the Department which govern use of force, use of force

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review boards, profiling based on any of the protected characteristics identified by federal state, or local law, or First Amendment assemblies. If the Commission does not approve or reject the Department's proposed changes within one hundred and twenty (120) days of the Department's submission of the proposed changes to the Commission, the Department's proposed changes will become final. If the Commission rejects the Department's proposed changes, notice of the Commission's rejection, together with the Department's proposed changes, shall be submitted to the City Council for review. If the City Council does not approve or reject the Commission's decision within one hundred and twenty (120) days of the Commission's vote on the Department's proposed changes, the Commission's decision will become final.

5. Review and comment, at its discretion, on all other policies, procedures, customs, and General Orders of the Department. All such comments shall be submitted to the Chief of Police who shall provide a written response to the Commission upon request.

6. Review the Mayor's proposed budget to determine whether budgetary allocations for the Department are aligned with the Department's policies, procedures, customs, and General Orders. The Commission shall conduct at least one public hearing on the Department budget per budget cycle and shall forward to the City Council any recommendations for change.

7. Require the Chief of Police to submit an annual report to the Commission regarding such matters as the Commission shall require.

8. Report at least once a year to the Mayor, the City Council, and to the public to the extent permissible by law, the information contained in the Chiefs report in addition to such other matters as are relevant to the functions and duties of the Commission.

9. Acting separately or jointly with the Mayor, remove the Chief of Police by a vote of not less than five affirmative votes. If acting separately, the Commission may remove the Chief of Police only after adopting a finding or findings of cause, which shall be defined by City ordinance. The Commission must make its finding of just cause by no less than five affirmative votes. Upon removal, by the Commission, by the Mayor, or by the Mayor and the Commission acting jointly, or upon the notice of vacancy of the position of Chief of Police, the Mayor shall immediately appoint an Interim Chief of Police. The Commission, with the assistance of the City Administrator, shall prepare and distribute a job announcement, and prepare a list of at least four candidates and transmit the names and relevant background materials to the Mayor. The Mayor shall appoint one person from this list, or reject the list in its entirety and request a new list from the Commission.

10. Send the Chairperson of the Commission or another Commissioner appointed by the Chairperson to serve as a nonvoting member of any level one Oakland Police Force Review Board.

11. Determine whether, and for what type of misconduct or failure to act, the Department's Internal Affairs Division shall have the authority to investigate the Department's nonsworn employees.

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12. Perform such other functions and duties as may be prescribed by this Charter or by City ordinance.

(c) Appointment, Terms, Vacancies, Removal.

1. The Commission shall consist of seven (7) regular members and two (2) alternate members, all of whom shall be Oakland residents of at least eighteen (18) years of ageTo the extent practicable, appointments shall be broadly representative of Oakland's diversity. The following shall.not be eligible to serve as a Commissioner:

a. current sworn police officer; b. current City employee; c. former Department sworn employee; or d. current or former employee, official or representative of an employee association representing sworn police officers.

2. Within two hundred and ten (210) days of the enactment of this Section, the Mayor shall appoint three (3) Oakland residents as Commissioners, at least one of whom shall be a retired judge or lawyer with trial experience in criminal law or police misconduct, and one (1) Oakland resident as an alternate, and submit the names of these appointees to the Council for confirmation. The Council shall have sixty (60) days from the date of receipt of the Mayor's submission to confirm each of the Mayor's appointees as Commissioners. The Mayor shall appoint an Oakland resident to fill any Commission vacancies that were previously filled by a Mayor's appointee.

3. All other Commissioners and the other alternate shall be appointed as follows:

a. There is hereby established a nine (9) member Selection Panel. Within ninety (90) days of the enactment of this Section, each City Council member shall appoint one (1) person, and the Mayor shall appoint one (1) person, to the Selection Panel. No current Department employee is eligible to be a member of the Selection Panel. The Selection Panel, with the assistance of the City Administrator, will solicit applications from those willing to serve on the Commission. The Selection Panel will review the applications, and interview applicants to serve as members of the Commission.

b. Within one hundred and twenty days (120) of its formation, the Selection Panel, by a twothirds vote, shall submit a slate of four (4) regular members and one (1) alternate member to the City Council. The City Council may require the nominees to appear before the Council or a Committee of the Council. If the City Council does not accept or reject the slate in its entirety within sixty (60) days, the four (4) regular members and one (1) alternate member shall be deemed appointed.

c. Each year the Selection Panel shall reconvene, as needed, to designate replacements for the five (5) Commissioner (four (4) regular members and one (1) alternate) vacancies initially filled by the Selection Panel and shall submit a slate of names of such designated persons to the City Council for acceptance or rejection. If the City

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Council does not accept or reject the entire slate within sixty (60) days, all designated replacements shall be deemed appointed.

d. Each year the Mayor and each Councilmember may replace her or his assigned person on the Selection Panel. Selection Panel members may serve up to five (5) years.

4. With the exception of the first group of Commissioners which shall serve staggered terms, the term for each Commissioner shall be three (3s) years.

5. Commission members are limited to no more than two (2) consecutive terms, except that a Commissioner serving a term of no more than one (1) year shall be allowed to serve two (2) additional consecutive terms.

6. To effect a staggering of terms among the Commissioners, the duration of the first group of Commissioners shall be determined by the Selection Panel as follows: Three (3) regular members, including one (1) of the mayoral appointees, shall have an initial term of three (3) years; two (2) regular members, including one (1) of the mayoral appointees, shall have an initial term of two (2) years; two (2) regular members, including one (1) of the mayoral appointees, shall have an initial term of four (4) years. The alternate member appointed by the Selection Panel shall have an initial term of two (2) years and the alternate member appointed by the Mayor shall have an initial term of three (3) years.

7. A vacancy on the Commission shall exist whenever a member dies, resigns, ceases to be a resident of the City, is convicted of a felony, or is removed.

8. For vacancies occurring for reasons other than the expiration of a regular member's term, the Commission shall select one of the alternates to replace the regular member for that regular member's remaining term of office. If the alternate chosen to replace the regular member was appointed by the Selection Panel, the Selection Panel shall appoint another alternate. If the alternate chosen to replace the regular member was appointed by the Mayor, the Mayor shall appoint another alternate.

9. All Commission members shall receive orientation regarding Department operations, policies and procedures, including but not limited to discipline procedures for police officer misconduct and failure to act. All Commission members shall receive training regarding Procedural Justice, conflict resolution, national standards of constitutional policing, best practices for conducting investigations, and other subject matter areas which are specified by City ordinance.

10. Members of the Commission may be removed by a majority vote of the Commission only for conviction of a felony, conviction of a misdemeanor involving moral turpitude, a material act of dishonesty, fraud, or other act of moral turpitude, substantial neglect of duty, gross misconduct in office, inability to discharge the powers and duties of office, absence from three consecutive regular Commission meetings or five regular meetings in a calendar year except on account of illness or when absent by permission.

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(d) Meetings, Rules and Procedures

1. The Commission shall meet at least twice each month unless it determines that one meeting is sufficient in a particular month. The Commission shall notify the public of the time and place of the meeting and provide time for public comment at each meeting. The Commission shall meet at least twice each year in locations other than City Hall.

2. The Commission shall establish rules and procedures for the conduct and operations of its business. Such rules shall be made available to the public.

3. Five (5) members shall constitute a quorum. If a quorum is not established by the regular members in attendance, the Chairperson of the Commission may designate one or more alternate members to establish a quorum and cast votes. Motions on all matters except matters involving discipline of an individual police officer may be approved by a majority of those Commission members present.

(e) Budget and Staffing

1. The City shall allocate a sufficient budget for the Commission, including the Agency, to perform its functions and duties as set forth in this section, including budgeting at least one fulltimeequivalent Deputy City Attorney that is specifically charged with providing legal services to the Agency related to investigations, adjudications, and other police discipline matters. The one fulltimeequivalent Deputy City Attorney shall be assigned after consultation with the Chair of the Commission.

2. Within sixty (60) days of the City Council's confirmation of the first group of Commissioners and alternates, the Oakland Citizens' Police Review Board (hereinafter Board) shall be disbanded and its pending business transferred to the Commission and to the Agency. The Executive Director of the Board shall become the Interim Director of the Agency, and all other staff will be transferred to the Agency.

3. After the effective date of this Charter section, the Commission shall identify special qualifications and experience that candidates for Agency staff positions must have. Candidates for future vacancies shall be selectively certified in accordance with the Civil Service Personnel Manual, as may be amended from time to time, except that said selective certification shall not be subject to discretionary approval by the Persomiel Director.

4. The staff of the Agency shall consist of no fewer than one line investigator for every one hundred (100) sworn officers in the Department, rounded up or down to the nearest one hundred (100). The number of investigators shall be determined at the beginning of each budget cycle based on the number of sworn officers employed by the Department the previous June 1. At least one investigator shall be a licensed attorney. The budget setaside for such minimum staffing may be suspended for a fiscal year or twoyear budget cycle upon a finding in the budget resolution that the City is facing an extreme fiscal necessity, as defined by City Council resolution.

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5. The City Administrator shall assign a staff member to act as liaison to the Commission and to provide administrative support to the Commission.

6. Upon a vacancy, the Director of the Agency shall be hired by the City Administrator from among two (2) or three (3) candidates submitted by the Commission. By an affirmative vote of at least five (5) members, or by an affirmative vote of four (4) members with the approval of the City Administrator, the Commission may terminate the Director of the Agency. The Commission shall periodically conduct a performance review of the Agency Director. The Agency Director shall be classified as a Department head, and shall have the authority to hire and fire Agency staff.

7. Within one hundred and eighty (180) days of the City Council's confirmation of the first group of Commissioners and alternates, a civilian Inspector General of the Department shall be hired by the City Administrator from among two (2) or three (3) candidates submitted by the Commission, and shall replace the sworn member of the Department who may be holding that position. The Inspector General may only be removed by an affirmative vote of at least five (5s) members of the Commission, or by an affirmative vote of four (4s) members with the approval of the City Administrator. The City Administrator shall not have the authority to independently remove the Inspector General. The Commission shall periodically conduct a performance review of the Inspector General. The Inspector General shall be classified as a Department head.

8. Agency and Commission staff, with the exception of the Agency Director, shall be civil service employees in accordance with Article IX of the City Charter. Background checks shall be required for all Agency investigators that have been transferred from the Board and all subsequent investigator applicants before they are hired by the Agency.

9. No current or former sworn employee of the Department, or current official, employee or representative of an employee association representing sworn police officers, is eligible for any staff position in the Agency or the Commission.

(f) Investigations

1. The Agency shall receive, review and prioritize all public complaints concerning the alleged misconduct or failure to act of all Department sworn employees, including complaints from Department nonsworn employees. The Agency shall not be required to investigate each public complaint it receives, but shall investigate public complaints involving uses of force, incustody deaths, profiling based on any of the protected characteristics identified by federal, state, or local law, and First Amendment assemblies. The Agency shall also investigate any other possible misconduct or failure to act of a Department sworn employee, whether or not the subject of a public complaint, as directed by the Commission. The Agency shall forward a copy of each complaint received to the Internal Affairs Division of the Oakland Police Department within one business day of receipt.

2. The Agency shall have the same access to all Department files and records, in addition to all files and records of other City departments and agencies, as the Department's Internal

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Affairs Division. The Department and other City departments and agencies shall make every reasonable effort to respond to the Agency's requests for files and records within ten (10) days.

3. The Agency shall make every reasonable effort to complete its investigations within one hundred and eighty (180) days of the filing of the complaint with the Agency. Within thirty (30) days of completion of the investigation, the Director of the Agency shall issue written findings and proposed discipline regarding the allegations stated in the complaint to the Commission and the Chief of Police. The City Administrator shall not have the authority to reject or modify the Agency's findings and proposed discipline.

4. To the extent allowed by law and after consultation with the Commission, the Agency shall forward information to other enforcement agencies, including but not limited to the Alameda County District Attorney, when such information establishes a reasonable basis for believing that a crime may have been committed by a sworn Department employee.

(g) Adjudication

1. If the Chief of Police agrees with the Agency's findings and proposed discipline, he or she shall send to the subject officer notification of findings and intent to impose discipline.

2/ If the Chief of Police disagrees with the Agency's findings and/or proposed discipline, the Chief of Police shall prepare his or her own findings and/or proposed discipline, which shall be submitted to a Discipline Committee comprised of three Commissioners. The City Administrator shall not have the authority to reject or modify the Chief of Police's findings and proposed discipline. The Agency's findings and proposed discipline shall also be submitted to the Discipline Committee which shall review both submissions and resolve any dispute between the Agency and the Chief of Police. Based solely on the record presented by the Agency and the Chief of Police, the Discipline Committee shall submit its final decision regarding the appropriate findings and level of discipline to the Chief of Police who shall notify the subject officer. The City Administrator shall not have the authority to reject or modify the Discipline Committee's final decision regarding the appropriate findings and level of discipline. The Discipline Committee shall not have the authority to conduct its own investigation.

3. If the Chief of Police prepares his or her own findings and proposed discipline and provides it to the Agency before the Agency's investigation is initiated or completed, the Agency may close its investigation or may choose not to conduct its own investigation in order to allow final discipline to proceed as proposed by the Chief, except that if the Agency is required to conduct an investigation by subsection (T) above, the Commission must approve the Agency's decision by a majority vote. If the Agency chooses not to close its investigation, imposition of final discipline shall be delayed until the Agency's investigation is completed and the Agency makes its findings and recommendation for discipline. The Agency shall notify the Chief of its decision regarding how it will proceed within five (5) business days of the Chiefs notice of completion of his or her investigation.

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4. After the findings and imposition of discipline have become final the subject officer shall have the right to appeal the findings and imposition of discipline (hereinafter defined as suspension, fine, demotion or termination) to the full Commission. All Department sworn employees shall also have the right to appeal to the Commission any findings and discipline imposed by the Chief of Police, when an investigation has been conducted solely by the Department's Internal Affairs Division because the Agency has either closed its investigation or chosen, as permitted by law, not to conduct an investigation. If appealed to the Commission, the Commission shall conduct an evidentiary hearing where the Agency, the Chief of Police, and the subject officer shall have the right to call witnesses and submit other evidence. The standard of proof that shall apply to all such evidentiary hearings, including but not limited to hearings regarding employment terminations, is preponderance of the evidence. The Commission may delegate its authority to hold such a hearing to a hearing officer who shall be an attorney or retired judge with ten or more years of relevant experience. The Commission shall have the sole authority to choose the hearing officer. The hearing officer shall conduct the hearing and make a recommendation for final decision to the Commission. The level of discipline imposed by the City, including but not limited to employment termination, must be upheld if: (a) the City satisfies the preponderance of the evidence standard of proof; and (b) the level of discipline imposed by the City is reasonable and consistent with progressive discipline.

5. The Commission or hearing officer shall require the parties to:

a. Exchange the names of any expert witnesses who will testify at the hearing, together with a summary of the substance of each expert witness's anticipated testimony, at least fourteen (14) calendar days prior to the first day of hearing. Any revisions or additions to this list must be made at least three (3) business days before the hearing;

b. Exchange a list of any nonexpert witnesses who will testify at the hearing, together with a summary of the substance of each nonexpert witness's anticipated testimony, at least fourteen (14) calendar days prior to the first day of hearing. Such list of nonexpert witnesses shall be confidential and disclosed only to the subject officer (who shall maintain the confidentiality of the list). City employees with a need to know, and counsel for the parties. Any revisions or additions to this list must be made at least three (3) business days before the hearing;

c. Exchange a list identifying all exhibits the party intends to introduce at the hearing at least fourteen (14) calendar days prior to the first day of hearing. Any revisions or additions to this list must be made at least three (3) business days before the hearing; and

d. Meet and confer at least fourteen (14) calendar days prior to the first day of hearing to determine whether they can agree on a joint exhibit list, and a joint stipulation of facts.

6. At all times, the Commission shall make the final decision regarding the findings and level of discipline to be imposed with an affirmative vote of at least four (4) members. To the extent permissible by state law, including rules regarding attorneyclient privilege.

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the vote of each Commissioner regarding final decisions about discipline shall be made public.

7. Subsequent to the expiration of any adopted Memorandum of Understanding in effect at the time of the effective date of this section, discipline imposed under this section shall not be subject to arbitration notwithstanding any other Section of this Charter or terms of any agreement between the City and employee organization representing sworn officers.

8. The Commission shall have the same access to all Department files and records, in addition to all files and records of other City departments and agencies, as the Department's Internal Affairs Division. The Department and other City departments and agencies shall make every reasonable effort to respond to the Agency's requests for files and records within ten (10) days.

9. The Commission shall have the power to issue subpoenas to compel the appearance of witnesses, and the production of books, papers, records, and documents, and take testimony on any pending matter. The Commission or the Agency may seek a contempt order as provided by the general law of the State for a person's failure or refusal to appear, testify, or produce subpoenaed documents.

10. The Commission may offer to the subject officer voluntary conciliation, mediation, referral to the Chief of Police for disposition without a hearing, or any other alternative dispute resolution method that the Commission deems appropriate. If the subject officer agrees to use an alternative dispute resolution method, the Chief of Police and the Agency Director jointly shall have full settlement authority. If no settlement is reached, the subject officer shall have the right to appeal the findings and imposition of discipline as described in subsection (g)(4) above.

11. The oneyear statute of limitations for investigating complaints shall be tolled as required by state law when the complainant is the subject of criminal prosecution.

(h) Enabling Legislation

The Commission may make recommendations to the City Council for enacting legislation or regulations that will further the goals and purposes of this section 604. The City Council may, on its own initiative, enact legislation or regulations that will further the goals and purposes of this section 604 after first submitting such legislation or regulations to the Commission for review and comment. The Commission shall have fortyfive (45) days to submit its comments to the City Council, such time to be extended only by agreement of the City Council.

and be it

FURTHER RESOLVED: That the proposed Ordinance text shall be as follows:

Chapter 2.45 OAKLAND POLICE COMMISSION

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2.45.010 Creation.

Oakland City Charter Section 604 has established the Oakland Police Commission (hereinafter Commission). Ordinance No. 12454 C.M.S. which creates the Citizens' Police Review Board shall be repealed effective once the initial Commission appointments have been confirmed.

2.45.020 Functions and Duties.

In addition to the powers and duties described in Section 604 of the Oakland City Charter, it shall be the function and duty of the Commission, for and on behalf of the city, its elected officials, officers, employees, boards and commissions, to:

A. In cooperation with the Chief of Police, ensure that all sworn employees of the Oakland Police Department (hereinafter Department) receive adequate education and training regarding the management of jobrelated stress, and regarding the signs and symptoms of posttraumatic stress disorder, drug and alcohol abuse, and other jobrelated mental and emotional health issues.

B. In cooperation with the Chief of Police, ensure that all sworn employees of the Department receive adequate treatment, when appropriate, for posttraumatic stress disorder, drug and alcohol abuse, and other jobrelated mental and emotional health issues.

C. Prepare and deliver to the Mayor and the City Administrator by January 31 of each year, or such other date as set by the Mayor, a proposed budget for providing the education, training and treatment identified in subsections (A) and (B) above.

D. Remove the Chief of Police, without the approval of the City Administrator or the Mayor, by a vote of not less than five (5) affirmative votes and only after finding cause. For purposes of removing the Chief of Police, "cause" shall be defined as: 1. Gross neglect of duties or a violation of City or Department policy after the Chief of Police has received written warning of the neglect or violation and the Chief of Police has failed to cure the neglect or violation within twenty (20) days; or

2. Conviction of a felony; or 3. Conviction of misdemeanor involving moral turpitude; or 4. Failure or refusal to cooperate with any investigations involving employees of the Department;

5. Obstruction of justice; 6. Failure or refusal to administer or enforce Department policies, procedures or General Orders; or

7. A material act of dishonesty, fraud, or other act of moral turpitude. E. Direct the Inspector General, within one hundred and fifty (150) days of his or her

appointment, to hire a civilian for the position of Police Auditor. The Police Auditor shall be subject to a background check prior to being offered the position. The Police Auditor shall report directly to the Inspector General. The Police Auditor's job responsibilities shall include, without limitation: 1. Conducting an annual review of the Department's process and procedures

for investigating police misconduct and police failure to act;

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2. Conducting an annual review of the Department's process and procedures for determining the appropriate level of discipline for sustained findings of police misconduct or police failure to act;

3. Conducting an annual review of the Community Police Review Agency's (hereinafter Agency) process and procedures for investigating police misconduct and police failure to act;

4. Conducting an annual review of the Agency's process and procedures for determining the appropriate level of discipline for sustained findings of police misconduct or police failure to act;

5. Preparing a report, on an annual basis, summarizing the results of the annual reviews described above and including, when appropriate, recommendations for changes in the processes and procedures that were reviewed. This annual report shall be presented to the Commission, the City Council's Public Safety Committee, and to the Chief of Police.

F. Direct the Inspector General to review, as appropriate, and finalize the Police Auditor's annual report and submit it to the Commission.

G. Require the Chief of Police to submit quarterly reports to the City Council's Public Safety Committee which shall include, without limitation: 1. The number of pending investigations in the Department's Internal Affairs

Division, and the types of police officer misconduct or police officer failure to act that are being investigated;

2. The number of training sessions offered to Department sworn employees, and the subject matter of the training sessions;

3. Revisions made to Department policies and general orders; 4. Number of, and circumstances surrounding, officerinvolved shootings

and the results of any Executive Force Review Board or Force Review Board hearings; and

5. Number of officers disciplined and the level of discipline imposed. H. Within one hundred and eighty days (180) of the City Council's confirmation of

the first group of Commissioners and alternates and on the anniversary of that date thereafter, the Commission shall notify the Chief of Police regarding what information will be required in the Chief of Police's annual report to the Commission.

I. Establish a Discipline Committee, consisting of three (3) Commission members, one of whom shall be appointed Chairperson, which shall decide any dispute between the Agency and the Chief of Police regarding the appropriate findings or recommended level of discipline. Membership in the Discipline Committee shall change for each such dispute so that the same three (3) Commission members are not deciding each dispute between the Agency and the Chief of Police.

J. Request that the City Attorney's Office submit quarterly reports to the City Council which include a summary of: 1. Recent arbitration decisions or other related results; 2. The ways in which it has supported the police discipline process; and 3. Recent developments in police discipline.

K. The Commission will provide policy guidelines to the Agency Director for assistance in determining case prioritization.

L. Make available on its website, to the extent permitted by law:

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1. The Commission's annual report; 2. The Chief of Police's annual and quarterly reports; and 3. The Inspector General's annual report.

2.45.30 Election of chairperson.

At the first regular meeting of each year, the members shall elect a chairperson and a vicechairperson.

2.45.40 Rules, regulations and procedures.

The Commission shall establish rules and procedures for the conduct of its business by a majority vote of the members present. The Commission must vote to adopt any motion or resolution. All such proposed rules and procedures shall be submitted to the City Council for approval or rejection. If the City Council does not approve or reject the Commission's proposed rules and procedures within one hundred and sixty (60s) days of the Commission's vote on the proposed rules and procedures, the rules and procedures will become final until modified in the future by the Commission.

2.45.050 Commission Committees s

With the exception of the Commission's Discipline Committee, the Commission must obtain City Council approval prior to creating any standing committee of the Commission. A proposal to create a standing committee of the Commission must include information regarding the costs associated with staffing the standing committee, and the costs of complying with noticing and reporting requirements resulting from the establishment of any such standing committee of the Commission.

2.45.060 Staff assistance.

Within one hundred and eighty (180) days of the City Council's confirmation of the first group of Commissioners and alternates, the Commission shall provide the City Administrator with its proposal for the staff positions necessary to permit the Commission to fulfill its functions and duties as set forth in this Chapter 2.45 and as set forth in Section 604 of the City Charter.

2.45.070 Commissioner Training

Within twelve months of appointment, each Commissioner must:

A. Complete the Citizens' Police Academy and participate in a Department "ridealong;" and

B. Receive training in basic principles of constitutional due process and administrative hearing procedures.

2.45.080 Hearings

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A. It shall be the sole and exclusive responsibility of the Commission to determine the order and conduct of any public hearing.

B. It shall be the Commission's sole and exclusive responsibility to determine the procedures to be followed in all evidentiary hearings regarding complaints about police officer conduct or failure to act conducted by either the Commission or the hearing officer provided that such procedures are consistent with accepted practices of administrative procedure and consistent with constitutional due process requirements.

C. Commissioners and the Deputy City Attorney representing the Agency in the hearing may reasonably question all witnesses. The officer who is the subject of the complaint or the officer's representative will be allowed reasonable crossexamination of witnesses.

D. Prior to the Commission making its final decision regarding findings and the imposition of discipline, the Commission shall take into account all relevant and applicable City and Department rules, regulations, policies, and General Orders.

2.45.090 Authority of Public Ethics Commission.

After the Commission has provided two (2) written notices to the City Administrator and applicable Department or Agency Head of failure to provide documents or information as required by Section 604 of the City Charter, the Public Ethics Commission shall have the authority to investigate allegations that said City Department or Agency Head failed to provide documents or information to the Commission as required by Section 604 of the City Charter. Such requirements shall be subject to enforcement in the same manner as violations of Chapter 2.25 of the Oakland Municipal Code.

2.45. 1000 Reporting to City Council.

The Commission shall submit its first annual, written report to the Mayor, City Council and the public within eighteen (18) months of the City Council's confirmation of the first group of Commissioners and alternates. The Commission's subsequent reports shall be submitted annually on or near the anniversary of that date.

2.45.110 Authority to amend.

Nothing herein shall prevent or preclude the City Council from amending this chapter as it deems appropriate

Chapter 2.46 COMMUNITY POLICE REVIEW AGENCY

2.46.010 Creation

Oakland City Charter Section 604 has established the Community Police Review Agency (hereinafter Agency).

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2.46.020 Functions and duties.

In addition to the powers and duties described in Section 604 of the Oakland City Charter, it shall be the function and duty of the Community Police Review Agency, for and on behalf of the city, its elected officials, officers, employees, boards and commissions, to:

A. Use the same complaint form as used by the Oakland Police Department (hereinafter Department) in receiving all public complaints concerning alleged misconduct or failure to act on the part of any Department sworn employee, including complaints from Department nonsworn employees. All complaints, wherever filed, shall be datestamped and numbered sequentially. Within twentyfour (24) hours of receipt, a copy of the numbered and datestamped complaint shall be provided to the complainant and to the Department's Internal Affairs Division.

B. Make complaint forms available to the public at libraries, resource centers, recreation centers, and on the Agency's website.

C. Ensure that all investigators receive any necessary training in conducting fair and impartial investigations.

D. No less than twice a year, issue a detailed statistical report to the Public Safety Committee regarding complaints filed with the Agency, the processing of the complaints, the length of time required for investigation, if any, and the disposition of the complaints.

2.46.030 Agency Director.

The Agency Director shall be responsible for the daytoday operations of the Agency. The Agency Director's job responsibilities shall include, without limitation, the following:

A. Identifying the staff positions, other than the position of investigator, necessary to perform the Agency's functions and duties.

B. Monitoring the workload of all Agency investigators; C. Assigning complaints to investigators; D. Conducting annual job performance evaluations of all investigators; E. Responding to questions and issues raised by the public; and F. Any other duties assigned by the Commission.

2.46.040 Authority of Public Ethics Commission.

After the Commission has provided two (2) written notices to the City Administrator and applicable Department or Agency Head of failure to provide documents or information as required by Section 604 of the City Charter, the Public Ethics Commission shall have the authority to investigate allegations that said City Department or Agency Head failed to provide documents or information to the Commission as required by Section 604 of the City CharterSuch requirements shall be subject to enforcement in the same manner as violations of Chapter 2.25 of the Oakland Municipal Code.

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2.46.050 Authority to amend.

Nothing herein shall prevent or preclude the City Council from amending this chapter as it deems appropriate.

and be it

FURTHER RESOLVED: That in accordance with the Elections Code and Chapter 3.08 of the Oakland Municipal Code, the City Clerk shall fix and determine a date for submission of arguments for or against said proposed Charter amendment, and said date shall be posted by Office of the City Clerk; and be it

FURTHER RESOLVED: That in accordance with the Elections Code and Chapter 3.08 of the Oakland Municipal Code, the City Clerk shall provide for notice and publication as to said proposed Charter amendment in the manner provided for by law; and be it

FURTHER RESOLVED: That each ballot used at said municipal election shall have printed therein, in addition to any other matter required by law the following:

PROPOSED CHARTER AMENDMENT MEASURE

Measure ...

Measure . [to be drafted] Yes No

and be it

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FURTHER RESOLVED: That the City Clerk and City Administrator hereby are authorized and directed to take any and all actions necessary under law to prepare for and conduct the next municipal election and appropriate all monies necessary for the City Administrator and City Clerk to prepare for and conduct the next municipal election, consistent with law.

IN COUNCIL, OAKLAND, CALIFORNIA,

PASSED BY THE FOLLOWING VOTE:

AYES BROOKS, CAMPBELL WASHINGTON, GALLO, GUILLEN, KALB, KAPLAN, REID, AND PRESIDENT GIBSON MCELHANEY

NOESABSENTABSTENTION

ATTEST: LATONDA SIMMONS

City Clerk and Clerk of the Council of the City of Oakland, California

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Councilmembers Noel Gallo & Dan Kalb Subject: Police Commission Charter Amendment Measure Date: June 2, 2016 Attachment A

7 6 JUK 3 m ^ 03

Alternate Adjudication Section No Exclusion of Arbitration

This section could replace the (g) "Adjudication" section in the proposed Charter Amendment1.

(g) Adjudication

1. If the Chief of Police agrees with the Agency's findings and proposed discipline, he or she shall send to the subject officer notification of findings and intent to impose discipline.

2. If the Chief of Police disagrees with the Agency's findings and/or proposed discipline, the Chief of Police shall prepare his or her own findings and/or proposed discipline, which shall be submitted to a Discipline Committee comprised of three Commissioners. The City Administrator shall not have the authority to reject or modify the Chief of Police's findings and proposed discipline. The Agency's findings and proposed discipline shall also be submitted to the Discipline Committee which shall review both submissions and resolve any dispute between the Agency and the Chief of Police. Based solely on the record presented by the Agency and the Chief of Police, the Discipline Committee shall submit its final decision regarding the appropriate findings and proposed discipline to the Chief of Police who shall notify the subject officer. The City Administrator shall not have the authority to reject or modify the Discipline Committee's final decision regarding the appropriate findings and level of discipline. The Discipline Committee shall not have the authority to conduct its own investigation.

3. If the Chief of Police prepares his or her own findings and proposed discipline and provides it to the Agency before the Agency's investigation is initiated or completed, the Agency may close its investigation or may choose not to conduct its own investigation in order to allow final discipline to proceed as proposed by the Chief, except that if the Agency is required to conduct an investigation by subsection (f) above, the Commission must approve the Agency's decision by a majority vote. . If the Agency chooses not to close its investigation, imposition of final discipline shall be delayed until the Agency's investigation is completed and the Agency makes its findings and recommendation for discipline. The Agency shall notify the Chief of its decision regarding how it will proceed within five (5) business days of the Chiefs notice of completion of his or her investigation.

4. After the findings and imposition of discipline have become final, the subject officer shall have the right to grieve the findings and imposition of discipline if such rights are prescribed in a collective bargaining agreement. The standard of proof that shall apply to

1 As with the (g) "Adjudication" section included in the Charter Amendment in the Resolution, this alternate section was drafted in consultation with the City Attorney's office.

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all evidentiary hearings under such grievance procedures, including but not limited to hearings regarding employment terminations, is preponderance of the evidence.

5. Within sixty (60) days of the City Council's confirmation of the first group of Commissioners and alternates, the Commission, in consultation with the City Attorney's Office, the Oakland Police Officers' Association, and the Oakland Police Management Association, shall choose a panel of ten HO) arbitrators listed in alphabetical order by last

name, all of whom shall hear police discipline and termination appeals on a rotating basis. The arbitrators chosen by the Commission shall have ten or more years of experience as arbitrators, including experience hearing police discipline cases. The Commission shall determine, on a biennial basis, whether any changes should be made to the panel of arbitrators. The Commission shall have the authority to replace any arbitrator on the panel, and to fill any vacancy on the panel created by the death or resignation of an arbitrator.

6. The arbitrator or the Civil Service Board shall be required to uphold the level of discipline imposed by the City, including but not limited to employment termination, if: (a) the City satisfies the preponderance of the evidence standard of proof: and Cb) the level of discipline imposed by the City is reasonable and consistent with progressive discipline.

7. The arbitrator. Civil Service Board, or hearing officer shall require the parties to:

a. Exchange the names of any expert witnesses who will testify at the hearing, together with a summary of the substance of each expert witness's anticipated testimony, at least fourteen CI 4") calendar days prior to the first day of hearing. Any revisions or additions to this list must be made at least three C3) business days before the hearing;

b. Exchange a list of any nonexpert witnesses who will testify at the hearing, together with a summary of the substance of each nonexpert witness's anticipated testimony, at least fourteen CI4) calendar days prior to the first day of hearing. Such list of nonexpert witnesses shall be confidential and disclosed only to the subject officer Cwho shall maintain the confidentiality of the list). City employees with a need to know, and counsel for the parties. Any revisions or additions to this list must be made at least three C3) business days before the hearing:

c. Exchange a list identifying all exhibits the party intends to introduce at the hearing at least fourteen CI 4) calendar days prior to the first day of hearing. Any revisions or additions to this list must be made at least three C3) business days before the hearing: and

d. Meet and confer at least fourteen CI4) calendar days prior to the first day of hearing to determine whether they can agree on a joint exhibit list, and a joint stipulation of facts.

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8. All Department sworn employees shall also have the right to appeal any findings and discipline imposed by the Chief of Police to the Commission in lieu of an arbitration hearing or Civil Service Board hearing prescribed in a collective bargaining agreementSuch election is irrevocable. The Commission shall conduct an evidentiary hearing where the Agency, the Chief of Police, and the subject officer shall have the right to call witnesses and submit other evidence. The standard of proof that shall apply to all such evidentiary hearings, including but not limited to hearings regarding employment

terminations, is preponderance of the evidence. The Commission may delegate its authority to hold such a hearing to a hearing officer who shall be an attorney or retired judge with ten or more years of relevant experience. The Commission shall have the sole authority to choose the hearing officer. The hearing officer shall conduct the hearing and make a recommendation for final decision to the Commission. The level of discipline imposed by the City, including but not limited to employment termination, must be upheld if: (a) the City satisfies the preponderance of the evidence standard of proof; and (b) the level of discipline imposed by the City is reasonable and consistent with progressive discipline. The Commission shall make the final decision regarding the findings and level of discipline to be imposed with an affirmative vote of at least four members. To the extent permissible by state law, including rules regarding attorneyclient privilege, the vote of each Commissioner regarding final decisions about discipline shall be made public,

9. The Commission shall have the same access to all Department files and records, in addition to all files and records of other City departments and agencies, as the Department's Internal Affairs Division. The Department and other City departments and agencies shall make every reasonable effort to respond to the Agency's requests for files and records within ten (10) days.

10. The Commission shall have the power to issue subpoenas to compel the appearance of witnesses, and the production of books, papers, records, and documents, and take testimony on any pending matter. The Commission or the Agency may seek a contempt order as provided by the general law of the State for a person's failure or refusal to appear, testify, or produce subpoenaed documents.

11. If the subject officer elects to appeal the findings and discipline imposed by the Chief of Police to the Commission as described in subsection (g)(8) above, the Commission may offer to the subject officer voluntary conciliation, mediation, referral to the Chief of Police for disposition without a hearing, or any other alternative dispute resolution method that the Commission deems appropriate. If the subject officer agrees to use an alternative dispute resolution method, the Chief of Police and the Agency Director jointly shall have full settlement authority. If no settlement is reached, the subject officer shall have the right to appeal the findings and imposition of discipline as described in subsection (g)(8) above.

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12. The oneyear statute of limitations for investigating complaints shall be tolled as required by state law when the complainant is the subject of criminal prosecution.

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1410859v1 redlined

Approved as to Form and Legality

________________________ City Attorney’s Office

OAKLAND CITY COUNCIL

RESOLUTION NO. ___________ C.M.S.

INTRODUCED BY COUNCILMEMBERS NOEL GALLO AND DAN KALB

ADOPT A RESOLUTION ON THE CITY COUNCIL’S OWN MOTION SUBMITTING TO THE VOTERS AT THE NOVEMBER 8, 2016 STATEWIDE GENERAL ELECTION 1) A PROPOSED AMENDMENT TO THE CITY CHARTER TO CREATE THE OAKLAND POLICE COMMISSION, THE COMMUNITY POLICE REVIEW AGENCY, AND A PROCESS FOR POLICE DISCIPLINE, AND 2) A PROPOSED ENABLING ORDINANCE RELATING TO THE OAKLAND POLICE COMMISSION AND THE COMMUNITY POLICE REVIEW AGENCY, AND DIRECTING THE CITY CLERK TO TAKE ANY AND ALL ACTIONS NECESSARY UNDER LAW TO PREPARE FOR AND CONDUCT THE ELECTION

WHEREAS, on April 15, 1980, the City Council established the Citizens’ Police Review Board (hereinafter, Board) with jurisdiction to review certain complaints alleging Oakland Police Department officer and park ranger misconduct, to conduct fact-finding investigations, and to make advisory reports to the City Administrator. On July 30, 1996, the City Council expanded the Board’s jurisdiction to include complaints involving the excessive use of force, and bias based on an individual’s legally protected status (race, gender, national origin, religion, sexual orientation or disability). In 2002, the City Council further expanded the Board’s jurisdiction to include all complaints filed against police officers and park rangers, and expanded the Board’s size from nine (9) members to twelve (12) members. The City Council also granted the Board the option of holding evidentiary hearings using three-member panels and permitted Board members to review confidential Oakland Police Department (hereinafter, Department) records in closed session. On November 12, 2002, the City Council passed Ordinance No. 12454 C.M.S., which further refined the Board’s powers to include making recommendations to the City Administrator regarding litigated cases, and enlarged the amount of time for the Board to complete its investigations. The Board, however, is not empowered to oversee Department policy, impose discipline or adjudicate disciplinary appeals; and WHEREAS, in January 2003, the City entered into a Negotiated Settlement Agreement (hereinafter, NSA) with multiple plaintiffs who sued the City, alleging that Police Department officers violated plaintiffs’ civil rights. Since implementation of the NSA, a federal monitoring team has audited – and continues to audit – the Department’s progress in complying with each of the fifty-one (51) tasks identified in the NSA; and

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WHEREAS, while some important progress has been made in recent years, public perception persists that the Department and the City do not adequately hold its officers accountable for misconduct, as indicated, in part, by a February 8, 2016 notice of intent to circulate a petition for placing before the voters an initiative to amend the City Charter “for the purpose of creating a more robust and credible system of holding the Oakland Police Department accountable for providing the highest level of service to the residents of Oakland.” The public perception that the Department does not effectively hold its officers accountable stems, in part, from the inconsistent and unpredictable results obtained in police officer discipline proceedings under the current administrative appeal process; moreover, such varied results lead to an erosion of public trust in this process; and

WHEREAS, maintaining public trust and confidence in the Police Department is

essential for the Department to be able to provide the highest level of service to the community. In order to increase the public trust and confidence in the Department, improvements should be made to the processes for providing Department oversight and accountability. Appointing qualified members of the public to a Police Commission (hereinafter, Commission), entrusting the Commission with oversight of the Department and requiring the Commission to hold public hearings all would increase public transparency, which in turn would build a higher level of trust and confidence in the services provided by the Department. In addition, Oakland’s residents and police officers alike deserve the most thorough and fair system possible for adjudicating allegations of misconduct and related administrative appeals of police discipline decisions so that the results of such appeals are as consistent as possible. Such an appeals process would also build a higher level of trust and confidence in the services provided by the Department; and

WHEREAS, major cities across the country, including New York City, Los Angeles, and San Francisco, as well as medium-size cities such as Berkeley, Albuquerque, and Honolulu have civilian police commissions with varying degrees of oversight authority over their police departments. In recent years, more and more municipal jurisdictions have involved citizens in their law enforcement review systems, and highly publicized incidents of alleged or actual police misconduct and the years-in-the-making widespread public outrage over police misconduct, especially in African American communities, has brought the issue of civilian oversight to center stage in the United States; and WHEREAS, The National Association for Civilian Oversight of Law Enforcement, a nonprofit organization dedicated to promoting greater police accountability through the establishment or improvement of citizen oversight agencies, provides various resources on its website, including recommended standards and practices, which include the Police Oversight Principles of European Partners Against Corruption, which provides numerous recommendations for police oversight bodies including that they: (1) have independence from the executive branch of government; (2) are sufficiently separate from the hierarchy of the police subject to their oversight; (3) are governed by persons who are not currently serving as police officers; (4) have adequate finances and

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resources to perform their functions; (5) have full investigative powers regarding police misconduct allegations; and (6) are representative of a diverse population; and WHEREAS, while the Department currently has an in-house sworn Inspector General, one of the best models for on-going oversight of police discipline can be found in the City of Los Angeles’ Office of Inspector General. The L.A. Inspector General is a civilian who is charged with conducting systemic reviews of the disciplinary process and reports directly to the City of Los Angeles’ Police Commission to ensure a necessary level of independence. The creation of a civilian Inspector General reporting to the Commission came from the Christopher Warren Commission reforms following the protests and riots stemming in part from the Rodney King jury verdict; and WHEREAS, two reports by court-appointed investigator Edward Swanson recommend reforms including changes to the arbitration process and procedures; WHEREAS, while creating a Police Commission and providing much-needed reforms to and oversight of the police disciplinary process will enhance accountability and improve the public’s trust, it is equally important that these accountability measures and structure be adopted and implemented with appropriate checks and balances; therefore, be it RESOLVED: That the City Council hereby authorizes and directs the City Clerk, at least 88 days prior to the next general municipal election date, to file with the Alameda County Board of Supervisors and the Registrar of Voters certified copies of this resolution; and be it

FURTHER RESOLVED: That the City Council intends for this proposed Amendment to Article VI of the Charter, Section 604, together with the companion enabling ordinance, to comprehensively address independent oversight of the Oakland Police Department, with appropriate checks and balances, and reforms to the police officer discipline process; and be it FURTHER RESOLVED: That the City Charter and Oakland Municipal Code hereby are amended, to add, delete, or modify sections as set forth below (section numbers and titles are indicated in capitalized bold type; additions are indicated by underscoring, deletions are indicated by strike-through type; portions of the provisions not cited or not shown in underscoring or strike-through type are not changed); and be it FURTHER RESOLVED: That the proposed Charter Amendment text shall be as follows: SECTION 604 – POLICE COMMISSION (a) Creation and Role.

1. There is hereby established the Oakland Police Commission (hereinafter, Commission),

which shall oversee the Oakland Police Department (hereinafter, Department) in order to

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ensure that its policies, practices, and customs conform to national standards of

constitutional policing. The Commission shall have the functions and duties enumerated

in this Section, as well as those assigned to the Commission by Ordinance.

2. There is hereby established a Community Police Review Agency (hereinafter, Agency),

which shall have the functions and duties enumerated in this Section, as well as those

assigned to the Agency by Ordinance.

3. Nothing herein shall prohibit the Chief of Police or a commanding officer from

investigating the conduct of a Department sworn employee under his or her command,

nor shall anything herein prohibit the Chief of Police from taking disciplinary or

corrective action with respect to complaints investigated solely by the Department.

4. No later than two (2) years after the City Council has confirmed the first set of

Commissioners and alternates, the City Auditor shall conduct a performance audit and a

financial audit of the Commission and the Agency. Nothing herein shall limit the City

Auditor’s authority to conduct future performance and financial audits of the

Commission and the Agency.

(b) Powers and Duties.

The powers and duties of the Commission are as follows:

1. Organize, reorganize and oversee the Agency.

2. Conduct public hearings at least once a year on Department policies, rules, practices,

customs, and General Orders. The Commission shall determine which Department

policies, rules, practices, customs, or General Orders shall be the subject of the hearing.

3. Propose changes, including modifications to the Department’s proposed changes, to any

policy, procedure, custom, or General Order of the Department which governs use of

force, use of force review boards, profiling based on any of the protected characteristics

identified by federal, state, or local law, or First Amendment assemblies. All such

proposed changes and modifications shall be submitted to the City Council for approval

or rejection. If the City Council does not approve, modify and approve, or reject the

Commission's proposed changes or modifications within one hundred and twenty (120)

days of the Commission's vote on the proposed changes, the changes or modifications

will become final.

4. Approve or reject the Department’s proposed changes to all policies, procedures,

customs, and General Orders of the Department which govern use of force, use of force

review boards, profiling based on any of the protected characteristics identified by

federal, state, or local law, or First Amendment assemblies. If the Commission does not

approve or reject the Department’s proposed changes within one hundred and twenty

(120) days of the Department’s submission of the proposed changes to the Commission,

the Department’s proposed changes will become final. If the Commission rejects the

Department’s proposed changes, notice of the Commission’s rejection, together with the

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Department’s proposed changes, shall be submitted to the City Council for review. If the

City Council does not approve or reject the Commission’s decision within one hundred

and twenty (120) days of the Commission's vote on the Department’s proposed changes,

the Commission’s decision will become final.

5. Review and comment, at its discretion, on all other policies, procedures, customs, and

General Orders of the Department. All such comments shall be submitted to the Chief of

Police who shall provide a written response to the Commission upon request.

6. Review the Mayor's proposed budget to determine whether budgetary allocations for the

Department are aligned with the Department’s policies, procedures, customs, and General

Orders. The Commission shall conduct at least one public hearing on the Department

budget per budget cycle and shall forward to the City Council any recommendations for

change.

7. Require the Chief of Police to submit an annual report to the Commission regarding such

matters as the Commission shall require.

8. Report at least once a year to the Mayor, the City Council, and to the public to the extent

permissible by law, the information contained in the Chief's report in addition to such

other matters as are relevant to the functions and duties of the Commission.

9. Acting separately or jointly with the Mayor, remove the Chief of Police by a vote of not

less than five affirmative votes. If acting separately, the Commission may remove the

Chief of Police only after adopting a finding or findings of cause, which shall be defined

by City ordinance. The Commission must make its finding of just cause by no less than

five affirmative votes. Upon removal, by the Commission, by the Mayor, or by the

Mayor and the Commission acting jointly, or upon the notice of vacancy of the position

of Chief of Police, the Mayor shall immediately appoint an Interim Chief of Police. The

Commission, with the assistance of the City Administrator, shall prepare and distribute a

job announcement, and prepare a list of at least four candidates and transmit the names

and relevant background materials to the Mayor. The Mayor shall appoint one person

from this list, or reject the list in its entirety and request a new list from the Commission.

This provision shall not apply to any recruitment for the position of Chief of Police that is

pending at the time of the Commission’s first meeting.

10. Send the Chairperson of the Commission or another Commissioner appointed by the

Chairperson to serve as a non-voting member of any level one Oakland Police Force

Review Board.

11. Determine whether, and for what type of misconduct or failure to act, the Department’s

Internal Affairs Division shall have the authority to investigate the Department’s non-

sworn employees.

12. Perform such other functions and duties as may be prescribed by this Charter or by City

ordinance.

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1. The Commission shall consist of seven (7) regular members and two (2) alternate

members, all of whom shall be Oakland residents of at least eighteen (18) years of age.

To the extent practicable, appointments shall be broadly representative of Oakland’s

diversity. The following shall not be eligible to serve as a Commissioner:

a. current sworn police officer;

b. current City employee;

c. former Department sworn employee; or

d. current or former employee, official or representative of an employee association

representing sworn police officers.

2. Within two hundred and ten (210) days of the enactment of this Section, the Mayor shall

appoint three (3) Oakland residents as Commissioners, at least one of whom shall be a

retired judge or lawyer with trial experience in criminal law or police misconduct, and

one (1) Oakland resident as an alternate, and submit the names of these appointees to the

Council for confirmation. The Council shall have sixty (60) days from the date of receipt

of the Mayor’s submission to confirm each of the Mayor’s appointees as Commissioners.

The Mayor shall appoint an Oakland resident to fill any Commission vacancies that were

previously filled by a Mayor’s appointee.


a. There is hereby established a nine (9) member Selection Panel. Within ninety (90)

days of the enactment of this Section, each City Council member shall appoint one

(1) person, and the Mayor shall appoint one (1) person, to the Selection Panel. No

current Department employee is eligible to be a member of the Selection Panel. The

Selection Panel, with the assistance of the City Administrator, will solicit applications

from those willing to serve on the Commission. The Selection Panel will review the

applications, and interview applicants to serve as members of the Commission.

b. Within one hundred and twenty days (120) of its formation, the Selection Panel, by a

two-thirds vote, shall submit a slate of four (4) regular members and one (1) alternate

member to the City Council. The City Council may require the nominees to appear

before the Council or a Committee of the Council. If the City Council does not

accept or reject the slate in its entirety within sixty (60) days, the four (4) regular

members and one (1) alternate member shall be deemed appointed.

c. Each year the Selection Panel shall re-convene, as needed, to designate replacements

for the five (5) Commissioner (four (4) regular members and one (1) alternate)

vacancies initially filled by the Selection Panel and shall submit a slate of names of

such designated persons to the City Council for acceptance or rejection. If the City

Council does not accept or reject the entire slate within sixty (60) days, all designated

replacements shall be deemed appointed.

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d. Each year the Mayor and each Councilmember may replace her or his assigned

person on the Selection Panel. Selection Panel members may serve up to five (5)

years.

4. With the exception of the first group of Commissioners which shall serve staggered

terms, the term for each Commissioner shall be three (3) years.

5. Commission members are limited to no more than two (2) consecutive terms, except that

a Commissioner serving a term of no more than one (1) year shall be allowed to serve

two (2) additional consecutive terms.

6. To effect a staggering of terms among the Commissioners, the duration of the first group

of Commissioners shall be determined by the Selection Panel as follows: Three (3)

regular members, including one (1) of the mayoral appointees, shall have an initial term

of three (3) years; two (2) regular members, including one (1) of the mayoral appointees,

shall have an initial term of two (2) years; two (2) regular members, including one (1) of

the mayoral appointees, shall have an initial term of four (4) years. The alternate member

appointed by the Selection Panel shall have an initial term of two (2) years and the

alternate member appointed by the Mayor shall have an initial term of three (3) years.

7. A vacancy on the Commission shall exist whenever a member dies, resigns, ceases to be

a resident of the City, is convicted of a felony, or is removed.

8. For vacancies occurring for reasons other than the expiration of a regular member’s term,

the Commission shall select one of the alternates to replace the regular member for that

regular member’s remaining term of office. If the alternate chosen to replace the regular

member was appointed by the Selection Panel, the Selection Panel shall appoint another

alternate. If the alternate chosen to replace the regular member was appointed by the

Mayor, the Mayor shall appoint another alternate.

9. All Commission members shall receive orientation regarding Department operations,

policies and procedures, including but not limited to discipline procedures for police

officer misconduct and failure to act. All Commission members shall receive training

regarding Procedural Justice, conflict resolution, national standards of constitutional

policing, best practices for conducting investigations, and other subject matter areas

which are specified by City ordinance.

10. Members of the Commission may be removed by a majority vote of the Commission only

for conviction of a felony, conviction of a misdemeanor involving moral turpitude, a

material act of dishonesty, fraud, or other act of moral turpitude, substantial neglect of

duty, gross misconduct in office, inability to discharge the powers and duties of office,

absence from three consecutive regular Commission meetings or five regular meetings in

a calendar year except on account of illness or when absent by permission.

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(d) Meetings, Rules and Procedures

1. The Commission shall meet at least twice each month unless it determines that one

meeting is sufficient in a particular month. The Commission shall notify the public of the

time and place of the meeting and provide time for public comment at each meeting. The

Commission shall meet at least twice each year in locations other than City Hall.

2. The Commission shall establish rules and procedures for the conduct and operations of its

business. Such rules shall be made available to the public.

3. Five (5) members shall constitute a quorum. If a quorum is not established by the regular

members in attendance, the Chairperson of the Commission may designate one or more

alternate members to establish a quorum and cast votes. Motions on all matters except

matters involving discipline of an individual police officer may be approved by a

majority of those Commission members present.

(e) Budget and Staffing

1. The City shall allocate a sufficient budget for the Commission, including the Agency, to

perform its functions and duties as set forth in this section, including budgeting at least

one full-time-equivalent Deputy City Attorney that is specifically charged with providing

legal services to the Agency related to investigations, adjudications, and other police

discipline matters. The one full-time-equivalent Deputy City Attorney shall be assigned

after consultation with the Chair of the Commission.

2. Within sixty (60) days of the City Council’s confirmation of the first group of

Commissioners and alternates, the Oakland Citizens’ Police Review Board (hereinafter

Board) shall be disbanded and its pending business transferred to the Commission and to

the Agency. The Executive Director of the Board shall become the Interim Director of

the Agency, and all other staff will be transferred to the Agency.

3. After the effective date of this Charter section, the Commission shall identify special

qualifications and experience that candidates for Agency staff positions must have.

Candidates for future vacancies shall be selectively certified in accordance with the Civil

Service Personnel Manual, as may be amended from time to time, except that said

selective certification shall not be subject to discretionary approval by the Personnel

Director.

4. The staff of the Agency shall consist of no fewer than one line investigator for every one

hundred (100) sworn officers in the Department, rounded up or down to the nearest one

hundred (100). The number of investigators shall be determined at the beginning of each

budget cycle based on the number of sworn officers employed by the Department the

previous June 1. At least one investigator shall be a licensed attorney. The budget set-

aside for such minimum staffing may be suspended for a fiscal year or two-year budget

cycle upon a finding in the budget resolution that the City is facing an extreme fiscal

necessity, as defined by City Council resolution.

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5. The City Administrator shall assign a staff member to act as liaison to the Commission

and to provide administrative support to the Commission.

6. Upon a vacancy, the Director of the Agency shall be hired by the City Administrator

from among two (2) or three (3) candidates submitted by the Commission. By an

affirmative vote of at least five (5) members, or by an affirmative vote of four (4)

members with the approval of the City Administrator, the Commission may terminate the

Director of the Agency. The Commission shall periodically conduct a performance

review of the Agency Director. The Agency Director shall be classified as a Department

head, and shall have the authority to hire and fire Agency staff, in consultation with the

City Administrator.

7. Within one hundred and eighty (180) days of the City Council’s confirmation of the first

group of Commissioners and alternates, a civilian Inspector General of the Department

shall be hired by the City Administrator from among two (2) or three (3) candidates

submitted by the Commission, and shall replace the sworn member of the Department

who may be holding that position. The Inspector General may only be removed by an

affirmative vote of at least five (5) members of the Commission, or by an affirmative

vote of four (4) members with the approval of the City Administrator. The City

Administrator shall not have the authority to independently remove the Inspector

General. The Commission shall periodically conduct a performance review of the

Inspector General. The Inspector General shall be classified as a Department head. The

Chief of Police may assign a sworn officer to act as a liaison from the Department to the

Inspector General.

8. Agency and Commission staff, with the exception of the Agency Director, shall be civil

service employees in accordance with Article IX of the City Charter. Background checks

shall be required for all Agency investigators that have been transferred from the Board

and all subsequent investigator applicants before they are hired by the Agency.

9. No current or former sworn employee of the Department, or current official, employee or

representative of an employee association representing sworn police officers, is eligible

for any staff position in the Agency or the Commission.

(f) Investigations

1. Beginning sixty (60) days after the City Council’s confirmation of the first group of

Commissioners and alternates, the Agency shall receive, review and prioritize all public

complaints concerning the alleged misconduct or failure to act of all Department sworn

employees, including complaints from Department non-sworn employees. The Agency

shall not be required to investigate each public complaint it receives, but shall investigate

public complaints involving uses of force, in-custody deaths, profiling based on any of

the protected characteristics identified by federal, state, or local law, and First

Amendment assemblies. The Agency shall also investigate any other possible

misconduct or failure to act of a Department sworn employee, whether or not the subject

of a public complaint, as directed by the Commission. The Agency shall forward a copy

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of each complaint received to the Internal Affairs Division of the Oakland Police

Department within one business day of receipt.

2. The Agency shall have the same access to all Department files and records, in addition to

all files and records of other City departments and agencies, as the Department’s Internal

Affairs Division (IAD). The Department and other City departments and agencies shall

make every reasonable effort to respond to the Agency’s requests for files and records

within ten (10) days.

3. The Agency shall make every reasonable effort to complete its investigations within one

hundred and eighty (180) days of the filing of the complaint with the Agency. Within

thirty (30) days of completion of the investigation, the Director of the Agency shall issue

written findings and proposed discipline regarding the allegations stated in the complaint

to the Commission and the Chief of Police. The City Administrator shall not have the

authority to reject or modify the Agency’s findings and proposed discipline.

4. To the extent allowed by law and after consultation with the Commission, the Agency

shall forward information to other enforcement agencies, including but not limited to the

Alameda County District Attorney, when such information establishes a reasonable basis

for believing that a crime may have been committed by a sworn Department employee.

(g) Adjudication

1. If the Chief of Police agrees with the Agency’s findings and proposed discipline, he or

she shall send to the subject officer notification of findings and intent to impose

discipline. The Chief of Police may send such notification to the subject officer before

IAD has begun or completed its investigation.

2. If the Chief of Police disagrees with the Agency’s findings and/or proposed discipline,

the Chief of Police shall prepare his or her own findings and/or proposed discipline,

which shall be submitted to a Discipline Committee comprised of three Commissioners.

The City Administrator shall not have the authority to reject or modify the Chief of

Police’s findings and proposed discipline. The Agency’s findings and proposed

discipline shall also be submitted to the Discipline Committee which shall review both

submissions and resolve any dispute between the Agency and the Chief of Police. Based

solely on the record presented by the Agency and the Chief of Police, the Discipline

Committee shall submit its final decision regarding the appropriate findings and proposed

discipline to the Chief of Police who shall notify the subject officer. The City

Administrator shall not have the authority to reject or modify the Discipline Committee’s

final decision regarding the appropriate findings and level of discipline. The Discipline

Committee shall not have the authority to conduct its own investigation.

3. If the Chief of Police prepares his or her own findings and proposed discipline and

provides it to the Agency before the Agency’s investigation is initiated or completed, the

Agency may close its investigation or may choose not to conduct its own investigation in

order to allow final discipline to proceed as proposed by the Chief, except that if the

Agency is required to conduct an investigation by subsection (f) above, the Commission

must approve the Agency’s decision by a majority vote. If the Agency chooses not to

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close its investigation, imposition of final discipline shall be delayed until the Agency’s

investigation is completed and the Agency makes its findings and recommendation for

discipline. The Agency shall notify the Chief of its decision regarding how it will

proceed within five (5) business days of the Chief’s notice of completion of his or her

investigation.

4. After the findings and imposition of discipline have become final, the subject officer shall

have the right to grieve the findings and imposition of discipline if such rights are

prescribed in a collective bargaining agreement. The standard of proof that shall apply to

all evidentiary hearings under such grievance procedures, including but not limited to

hearings regarding employment terminations, is preponderance of the evidence.


Commissioners and alternates, the Commission, with the assistance of the City

Administrator, shall provide to the City Attorney’s Office, the Oakland Police Officers’

Association, and the Oakland Police Management Association, a list of twenty (20)

arbitrators who shall have ten or more years of experience as arbitrators, including

experience hearing police discipline cases. The City Attorney’s Office shall strike six (6)

names and the Oakland Police Officers’ Association and the Oakland Police Management

Association together shall strike a total of six (6) names. The resulting list of eight (8)

names, in alphabetical order by last name, shall hear police discipline and termination

appeals on a rotating basis for a period of three (3) years after which the process for

compiling a list of eight (8) arbitrators shall be repeated. The list of eight arbitrators shall

be made public.

6. The arbitrator or the Civil Service Board shall be required to uphold the level of

discipline imposed by the City, including but not limited to employment termination, if:

(a) the City satisfies the preponderance of the evidence standard of proof; and (b) the

level of discipline imposed by the City is reasonable and consistent with progressive

discipline. To the extent permissible by state law, including rules regarding attorney

client privilege, the arbitrator’s or Civil Service Board’s disposition of each discipline

case shall be made public. The Commission shall notify the complainant, if there is one,

of the arbitrator’s or Civil Service Board’s decision, to the greatest extent permitted by

law.

7. The arbitrator, Civil Service Board, or hearing officer shall require the parties to:

a. Exchange the names of any expert witnesses who will testify at the hearing,

together with a summary of the substance of each expert witness’s anticipated

testimony, at least fourteen (14) calendar days prior to the first day of hearing.

Any revisions or additions to this list must be made at least three (3) business

days before the hearing;

b. Exchange a list of any non-expert witnesses who will testify at the hearing,

together with a summary of the substance of each non-expert witness’s

anticipated testimony, at least fourteen (14) calendar days prior to the first day of

hearing. Such list of non-expert witnesses shall be confidential and disclosed

only to the subject officer (who shall maintain the confidentiality of the list), City

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employees with a need to know, and counsel for the parties. Any revisions or

additions to this list must be made at least three (3) business days before the

hearing;

c. Exchange a list identifying all exhibits the party intends to introduce at the

hearing at least fourteen (14) calendar days prior to the first day of hearing. Any

revisions or additions to this list must be made at least three (3) business days

before the hearing; and

d. Meet and confer at least fourteen (14) calendar days prior to the first day of

hearing to determine whether they can agree on a joint exhibit list, and a joint

stipulation of facts.


Commissioners and alternates, all Department sworn employees shall also have the right

to appeal any findings and discipline imposed by the Chief of Police to the Commission

in lieu of an arbitration hearing or Civil Service Board hearing prescribed in a collective

bargaining agreement. Such election is irrevocable. The Commission shall conduct an

evidentiary hearing where the Agency, the Chief of Police, and the subject officer shall

have the right to call witnesses and submit other evidence. The standard of proof that

shall apply to all such evidentiary hearings, including but not limited to hearings

regarding employment terminations, is preponderance of the evidence. The Commission

may delegate its authority to hold such a hearing to a hearing officer who shall be an

attorney or retired judge with ten or more years of relevant experience. The Commission

shall have the sole authority to choose the hearing officer. The hearing officer shall

conduct the hearing and make a recommendation for final decision to the Commission.

The level of discipline imposed by the City, including but not limited to employment

termination, must be upheld if: (a) the City satisfies the preponderance of the evidence

standard of proof; and (b) the level of discipline imposed by the City is reasonable and

consistent with progressive discipline. The Commission shall make the final decision

regarding the findings and level of discipline to be imposed with an affirmative vote of at

least four members. To the extent permissible by state law, including rules regarding

attorney-client privilege, the vote of each Commissioner regarding final decisions about

discipline shall be made public. The Commission shall notify the complainant, if there is

one, of its decision, to the greatest extent permitted by law.

9. The Commission shall have the same access to all Department files and records, in

addition to all files and records of other City departments and agencies, as the

Department’s Internal Affairs Division. The Department and other City departments and

agencies shall make every reasonable effort to respond to the Agency’s requests for files

and records within ten (10) days.

10. The Commission shall have the power to issue subpoenas to compel the appearance of

witnesses, and the production of books, papers, records, and documents, and take

testimony on any pending matter. The Commission or the Agency may seek a contempt

order as provided by the general law of the State for a person’s failure or refusal to

appear, testify, or produce subpoenaed documents.

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11. If the subject officer elects to appeal the findings and discipline imposed by the Chief of

Police to the Commission as described in subsection (g)(8) above, the Commission may

offer to the subject officer voluntary conciliation, mediation, referral to the Chief of

Police for disposition without a hearing, or any other alternative dispute resolution

method that the Commission deems appropriate. If the subject officer agrees to use an

alternative dispute resolution method, the Chief of Police and the Agency Director jointly

shall have full settlement authority. If no settlement is reached, the subject officer shall

have the right to appeal the findings and imposition of discipline as described in

subsection (g)(8) above.

12. The one-year statute of limitations for investigating complaints shall be tolled as required

by state law when the complainant is the subject of criminal prosecution.

(h) Enabling Legislation

The Commission may make recommendations to the City Council for enacting legislation or

regulations that will further the goals and purposes of this section 604. The City Council

may, on its own initiative, enact legislation or regulations that will further the goals and

purposes of this section 604 after first submitting such legislation or regulations to the

Commission for review and comment. The Commission shall have forty-five (45) days to

submit its comments to the City Council, such time to be extended only by agreement of the

City Council.

and be it FURTHER RESOLVED: That the proposed Ordinance text shall be as follows: Chapter 2.45 - OAKLAND POLICE COMMISSION

2.45.010 – Definitions.

The following words and phrases whenever used in this chapter shall be construed as

defined in this section:

“Agency” shall mean the Community Review Police Agency.

“Commission” shall mean the Oakland Police Commission.

“Department” shall mean the Oakland Police Department.

“Serious Incident” shall mean a police officer-involved shooting, death or serious bodily

harm caused by the action and/or inaction of a police officer, in-custody death, and/or serious

criminal activity of a Department employee, whether sworn or non-sworn, on-duty or off-duty.

2.45.015 – Creation.

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Oakland City Charter Section 604 has established the Oakland Police

Commission.Ordinance No. 12454 C.M.S. which creates the Citizens’ Police Review Board shall

be repealed effective once the initial Commission appointments have been confirmed.

2.45.020 – Functions and Duties.

In addition to the powers and duties described in Section 604 of the Oakland City

Charter, it shall be the function and duty of the Commission, for and on behalf of the city, its

elected officials, officers, employees, boards and commissions, to:

A. In cooperation with the Chief of Police, ensure that all sworn employees of the

Oakland Police Department (hereinafter Department) receive adequate education

and training regarding the management of job-related stress, and regarding the

signs and symptoms of post-traumatic stress disorder, drug and alcohol abuse, and

other job-related mental and emotional health issues.

B. In cooperation with the Chief of Police, ensure that all sworn employees of the

Department receive adequate treatment, when appropriate, for post-traumatic

stress disorder, drug and alcohol abuse, and other job-related mental and

emotional health issues.

C. Prepare and deliver to the Mayor, the City Administrator and the Chief of Police

by January 31 of each year, or such other date as set by the Mayor, a proposed

budget for providing the education, training and treatment identified in

subsections (A) and (B) above.

D. Remove the Chief of Police, without the approval of the City Administrator or the

Mayor, by a vote of not less than five (5) affirmative votes and only after finding

cause. For purposes of removing the Chief of Police, “cause” shall be defined as:

1. Gross neglect of duties or a violation of City or Department policy after the

Chief of Police has received written warning of the neglect or violation and

the Chief of Police has failed to cure the neglect or violation within twenty

(20) days; or

2. Conviction of a felony; or

3. Conviction of misdemeanor involving moral turpitude; or

4. Failure or refusal to cooperate with any investigations involving employees of

the Department;

5. Obstruction of justice;

6. Failure or refusal to administer or enforce Department policies, procedures or

General Orders; or

7. A material act of dishonesty, fraud, or other act of moral turpitude.

E. Direct the Inspector General, within one hundred and eighty (180) days of his or

her appointment, to hire a civilian for the position of Police Auditor. The Police

Auditor shall be subject to a background check prior to being offered the position.

The Police Auditor shall report directly to the Inspector General. The Police

Auditor’s job responsibilities shall include, without limitation:

1. Conducting an annual review of the Department’s process and procedures

for investigating police misconduct and police failure to act;

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2. Conducting an annual review of the Department’s process and procedures

for determining the appropriate level of discipline for sustained findings of

police misconduct or police failure to act;

3. Conducting an annual review of the Agency’s process and procedures for

investigating police misconduct and police failure to act;

4. Conducting an annual review of the Agency’s process and procedures for

determining the appropriate level of discipline for sustained findings of

police misconduct or police failure to act;

5. Preparing a report, on an annual basis, summarizing the results of the

annual reviews described above and including, when appropriate,

recommendations for changes in the processes and procedures that were

reviewed. This annual report shall be presented to the Commission, the

Mayor, the City Council’s Public Safety Committee, and to the Chief of

Police.

6. Conducting an annual review of trends and patterns regarding Department

training and education, and the Department’s use of the Internal Personnel

Assessment System (IPAS) and other early warning system(s). The Police

Auditor shall also monitor the number and percentage of sworn officers

who have received adequate training on profiling and implicit bias,

procedural justice, de-escalation training, and work-related stress

management.

F. Direct the Inspector General to develop and present a plan to the Commission to

measure the performance of each element of the Department’s discipline process.

G. Direct the Inspector General to review, as appropriate, and finalize the Police

Auditor’s annual report and submit it to the Commission.

H. Direct the Office of the Inspector General to complete all audits or review

requested by the Mayor, the City Administrator, and/or the City Council by an

affirmative majority vote. The Inspector General shall report all findings to the

office that requested the audit or review.

I. Require the Chief of Police to submit quarterly reports to the City Council’s

Public Safety Committee which shall include, without limitation:

1. The number of pending investigations in the Department’s Internal Affairs

Division, and the types of police officer misconduct or police officer

failure to act that are being investigated;

2. The number of training sessions offered to Department sworn employees,

and the subject matter of the training sessions;

3. Revisions made to Department policies and general orders;

4. Number of, and circumstances surrounding, officer-involved shootings

and the results of any Executive Force Review Board or Force Review

Board hearings; and

5. Number of officers disciplined and the level of discipline imposed.

J. Within one hundred and eighty days (180) of the City Council’s confirmation of

the first group of Commissioners and alternates and on the anniversary of that

date thereafter, notify the Chief of Police regarding what information will be

required in the Chief of Police’s annual report to the Commission.

K. Establish a Discipline Committee, consisting of three (3) Commission members,

one of whom shall be appointed Chairperson, which shall decide any dispute

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between the Agency and the Chief of Police regarding the appropriate findings or

recommended level of discipline. Membership in the Discipline Committee shall

change for each such dispute so that the same three (3) Commission members are

not deciding each dispute between the Agency and the Chief of Police.

L. Request that the City Attorney’s Office submit quarterly reports to the City

Council which include a summary of:

1. Recent arbitration decisions or other related results;

2. The ways in which it has supported the police discipline process; and

3. Recent developments in police discipline.

M. Provide policy guidelines to the Agency Director for assistance in determining

case prioritization.

N. Monitor and evaluate the Department’s recruitment and hiring practices for sworn

personnel.

O. Make available on its website, to the extent permitted by law:

1. The Commission’s annual report;

2. The Chief of Police’s annual and quarterly reports; and

3. The Inspector General’s annual report.

P. Direct the Chief of Police to immediately notify the Chair of the Commission, the

Agency Director and the Inspector General of any Serious Incident. In addition,

direct the Chief of Police to provide a status report within ten (10) calendar days of

the date on which the Serious Incident occurred, and a second status report within

forty-five (45) calendar days of the date on which the Serious Incident occurred.

Q. Direct the Chief of Police to brief the Commission Chair, the Agency Director and

the Inspector General at least once a month regarding allegations of all Serious

Incidents under investigation.

R. If no investigation has begun, direct the Agency to investigate a Serious Incident

when requested by the Mayor, the City Administrator, and/or the City Council by an

affirmative majority vote.

2.45.30 – Election of chairperson.

At the first regular meeting of each year, the members shall elect a chairperson and a

vice-chairperson.

2.45.40 - Rules, regulations and procedures.

The Commission shall establish rules and procedures for the conduct of its business by a

majority vote of the members present. The Commission must vote to adopt any motion or

resolution. All such proposed rules and procedures shall be submitted to the City Council for

approval or rejection within three (3) business days of the Commission’s vote. If the City

Council does not approve or reject the Commission's proposed rules and procedures within

ninety (90) days of the Commission's vote on the proposed rules and procedures, the rules and

procedures will become final until modified in the future by the Commission.

2.45.050 – Commission Committees

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With the exception of the Commission’s Discipline Committee, the Commission must

obtain City Council approval prior to creating any standing committee of the Commission. A

proposal to create a standing committee of the Commission must include information regarding

the costs associated with staffing the standing committee, and the costs of complying with

noticing and reporting requirements resulting from the establishment of any such standing

committee of the Commission.

2.45.060 - Staff assistance.

Within one hundred and eighty (180) days of the City Council’s confirmation of the first

group of Commissioners and alternates, the Commission shall provide the City Administrator

with its proposal for the staff positions necessary to permit the Commission and the Agency to

fulfill its functions and duties as set forth in this Chapter 2.45, Chapter 2.46, and as set forth in

Section 604 of the City Charter.

2.45.070 – Commissioner Training

Within twelve months of appointment, or as soon thereafter as possible, each

Commissioner must:

A. Complete the Citizens' Police Academy and participate in a Department “ride-

along;”

B. Complete the Department’s Procedural Justice Training, Implicit Bias Training,

and Crisis Intervention Training;

C. Complete Peace Officer Standards and Training (POST) Learning Domains 15

(Laws of Arrest) and 16 (Search and Seizure); and

D. Receive training in basic principles of constitutional due process and

administrative hearing procedures.

2.45.075 – Arbitrator Selection Process

In furtherance of the arbitrator selection process described in City Charter section

604(g)(5):

A. There shall be a coin toss to determine whether the City Attorney’s Office or the

OPOA and OPMA, together, shall strike the first name from the list of twenty

(20) arbitrators received from the California State Mediation & Conciliation

Service.

B. After the first name is struck from the list, the other party (the City Attorney’s

Office) or parties (the OPOA and OPMA together) shall strike the next name.

Strikes shall continue to alternate until a list of eight arbitrators remains.

2.45.080 - Hearings

A. It shall be the sole and exclusive responsibility of the Commission to

determine the order and conduct of any public hearing, consistent with applicable

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law and any adopted Memorandum of Understanding between the City and the

employee association(s) representing sworn Oakland police officers.

B. It shall be the Commission’s sole and exclusive responsibility to determine the procedures to be followed in all evidentiary hearings regarding complaints about police officer conduct or failure to act conducted by either the Commission or the hearing officer provided that such procedures are consistent with accepted practices of administrative procedure and consistent with constitutional due process requirements.

C. Commissioners and the Deputy City Attorney representing the Agency in the

hearing may reasonably question all witnesses. The officer who is the subject of

the complaint or the officer's representative will be allowed reasonable cross-

examination of witnesses.

D. Prior to the Commission making its final decision regarding findings and the

imposition of discipline, the Commission shall take into account all relevant and

applicable City and Department rules, regulations, policies, and General Orders.

2.45.090 – Authority of Public Ethics Commission.

After the Commission has provided two (2) written notices to the City Administrator and

applicable Department or Agency Head of failure to provide documents or information as

required by Section 604 of the City Charter, the Public Ethics Commission shall have the

authority to investigate allegations that said City Department or Agency Head failed to provide

documents or information to the Commission as required by Section 604 of the City Charter.

Such requirements shall be subject to enforcement in the same manner as violations of Chapter

2.25 of the Oakland Municipal Code.

2.45.100– Reporting to City Council.

The Commission shall submit its first annual, written report to the Mayor, City Council

and the public within eighteen (18) months of the City Council’s confirmation of the first group

of Commissioners and alternates. The Commission’s subsequent reports shall be submitted

annually on or near the anniversary of that date.

2.45.110 – Authority to amend.

Nothing herein shall prevent or preclude the City Council from amending this chapter as

it deems appropriate.

Chapter 2.46 - COMMUNITY POLICE REVIEW AGENCY

2.46.010 – Creation

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Oakland City Charter Section 604 has established the Community Police Review Agency

(hereinafter Agency).

2.46.020 – Functions and duties.

In addition to the powers and duties described in Section 604 of the Oakland City

Charter, it shall be the function and duty of the Community Police Review Agency, for and on

behalf of the city, its elected officials, officers, employees, boards and commissions, to:

A. Use the same complaint form as used by the Oakland Police Department

(hereinafter Department) in receiving all public complaints concerning alleged

misconduct or failure to act on the part of any Department sworn employee,

including complaints from Department non-sworn employees. All complaints,

wherever filed, shall be date-stamped and numbered sequentially. Within twenty-

four (24) hours of receipt, a copy of the numbered and date-stamped complaint

shall be provided to the complainant and to the Department’s Internal Affairs

Division.

B. Make complaint forms available to the public at libraries, resource centers,

recreation centers, and on the Agency’s website.

C. Ensure that all investigators receive any necessary training in conducting fair and

impartial investigations.

D. No less than twice a year, issue a detailed statistical report to the Public Safety

Committee regarding complaints filed with the Agency, the processing of the

complaints, the length of time required for investigation, if any, and the

disposition of the complaints.

2.46.030 – Agency Director.

The Agency Director shall be responsible for the day-to-day operations of the Agency.

The Agency Director’s job responsibilities shall include, without limitation, the following:

A. Identifying the staff positions, other than the position of investigator, necessary to

perform the Agency’s functions and duties.

B. Monitoring the workload of all Agency investigators;

C. Assigning complaints to investigators;

D. Conducting annual job performance evaluations of all investigators;

E. Responding to questions and issues raised by the public; and

F. Any other duties assigned by the Commission, in consultation with the City

Administrator.

2.46.040 – Authority of Public Ethics Commission.

After the Commission has provided two (2) written notices to the City Administrator and

applicable Department or Agency Head of failure to provide documents or information as

required by Section 604 of the City Charter, the Public Ethics Commission shall have the

authority to investigate allegations that said City Department or Agency Head failed to provide

documents or information to the Commission as required by Section 604 of the City Charter.

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Such requirements shall be subject to enforcement in the same manner as violations of Chapter

2.25 of the Oakland Municipal Code.

2.46.050 – Authority to amend.

Nothing herein shall prevent or preclude the City Council from amending this chapter as

it deems appropriate.

and be it FURTHER RESOLVED: That in accordance with the Elections Code and Chapter 3.08 of the Oakland Municipal Code, the City Clerk shall fix and determine a date for submission of arguments for or against said proposed Charter amendment, and said date shall be posted by Office of the City Clerk; and be it FURTHER RESOLVED: That in accordance with the Elections Code and Chapter 3.08 of the Oakland Municipal Code, the City Clerk shall provide for notice and publication as to said proposed Charter amendment in the manner provided for by law; and be it FURTHER RESOLVED: That each ballot used at said municipal election shall have printed therein, in addition to any other matter required by law the following:

PROPOSED CHARTER AMENDMENT

MEASURE ___

Measure

Measure _____. [to be drafted] Yes No and be it

FURTHER RESOLVED: That the City Clerk and City Administrator hereby are authorized and directed to take any and all actions necessary under law to prepare for and conduct the next municipal election and appropriate all monies necessary for the City Administrator and City Clerk to prepare for and conduct the next municipal election, consistent with law. 1919844v2

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IN COUNCIL, OAKLAND, CALIFORNIA, PASSED BY THE FOLLOWING VOTE: AYES – BROOKS, CAMPBELL WASHINGTON, GALLO, GUILLEN, KALB, KAPLAN, REID, AND

PRESIDENT GIBSON MCELHANEY NOES – ABSENT – ABSTENTION –

ATTEST: LATONDA SIMMONS

City Clerk and Clerk of the Council of the City of Oakland, California

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The top ten reasons why Berkeley needs police accountability reform: by Kriss Worthington

1. The system is so fatally flawed that Civil Rights and Civil Liberties attorneys tell clients

it’s not worth it to file complaint cases with the Police Review Commission.

2. Complainants report that restrictive rules leave them feeling violated and

disrespected when they pursue their complaints.

3. Unfortunately, racial profiling is alive and well in Berkeley. The statistics generated by

the Fair and Impartial Policing Policy provide substantial documentation that ethnic

minorities appear to be disproportionately stopped by Police.

4. The media, students, and the General Public across all ethnicities report excessive use

of force against both protestors and bystanders during the December Black Lives

Matter protests. The police were seen beating and using CS on the crowd.

5. The media reports that other jurisdictions respond to Public Record Act requests

about police accountability with far more details.

6. Blindfolded by restrictions on their access to documents such as tapes and video

recordings, PRC commissioners cannot make fully informed decisions.

7. Berkeley trails behind other Bay Area jurisdictions, such as Alameda County, BART,

San Francisco and Oakland, who have been adopting reforms to hold police

accountable.

8. Many qualified PRC commissioners are frustrated to find the system full of severe

rules and practices that prevent full review of facts. Commissioners who have

promoted reform have seen them delayed many months and years.

9. In the 1970’s Bell Bottoms were fashionable and the Berkeley Police Review

Commission structure was forward thinking. But in the 21st century, the US

Department of Justice’s recommendations, and regional best practices have evolved

from decades of experiences with new technologies and a multicultural society.

10. The PRC system is 43 years old. Isn’t it time for a change?

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Berkeley needs a comprehensive overhaul of our Police Review Commission. Community

members and groups have called for meaningful reform. This year multiple nearby cities

are seeking changes, including Oakland’s newly proposed Charter Measure. The changes

being proposed in Berkeley seek to identify the basic reform principles that are necessary

to ensure police accountability and guarantee fair treatment for all members of the

Berkeley community.

The central reform is for the commission to be independent, with the following

characteristics:

A clearly defined set of powers, including enforceable subpoena power, to ensure

accountability from the department and individual officers.

Visible and available to groups most affected by police discourtesy, mistreatment

and violence; including but not limited to religious minorities, people of color, low

income, LGBTQIA+, homeless, and the disabled communities.

A sufficient sustainable budget for staff, attorneys, and investigations along with

adequate resources to widely publicize the Commissions existence and the

services it provides.

Complainants must legally be listened to, be entitled to a voice and taken

seriously, and have a designated advocate to assist them in navigating the

system.

The commission must have uninhibited access to an independent counsel, who

may freely conduct investigations, and compel compliance with the Public

Records Act and other authorities.

The community must be actively involved in the annual priority setting process

for the commission, including use of force, racial profiling, and ensuring fair and

proper treatment of protesters. The commission shall have an open session and

allow collaboration with the public.

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The Commission must be able to hire and/or fire the Chief of Police, along with

the authority to discipline officers when appropriate and allowed by law.

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Subject: Ballot Measure to Increase Police Accountability

RECOMMENDATIONRefer to the City Manager and City Attorney to direct staff to develop language for a Measure to amend the City Charter to increase police accountability, to be placed on the November 8, 2016 ballot.

BACKGROUNDPolice accountability reform is currently sweeping the nation as an answer to civil rights movements and community demands. The City of Berkeley recently created new regular reports; for example on January 26, 2015 the Police department began collecting data pursuant to General Order B-4, Fair and Impartial Policing Policy (issued December 31, 2014).

The attached proposed Charter Amendment has been reviewed by multiple attorneys and modified with suggestions from multiple elected officials to seek to codify best practices in contemporary Police reform.

The U.S. Department of Justice’s Office of Community Oriented Policing Services, COPS, has completed an assessment of the best policies and practices for preventing, detecting and investigating misconduct. These reports serve as blueprints for reforms and build on the reform efforts already undertaken.

In 1973, a referendum in Berkeley established the first oversight agency in the U.S., the Police Review Commission (PRC), with independent authority to investigate complaints. Furthermore, Berkeley Police Chief Michael Meehan initiated communication with community organizations to gather input to create the Fair and Impartial Policing Policy. It is consistent with Berkeley’s past leadership on this issue that we consider these updated reforms. FINANCIAL IMPLICATIONS:Staff time

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CONTACT PERSON Councilmember Kriss Worthington 510-981-7170Viktor Petersson 510-981-7170

Attachment: 1. Proposed Charter Amendment creating the Oakland Police commission and the

Community Police Review Agency, Measure X Section 604.

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PROPOSED CHARTER AMENDMENT CREATING THE OAKLAND POLICE COMMISSION AND THE COMMUNITY POLICE REVIEW AGENCY, MEASURE X Section 604 –Oakland Police Commission SECTION 604 (a) Creation and Role.

1. There is hereby established the Oakland Police Commission (hereinafter, Commission), which

shall oversee the Oakland Police Department (hereinafter, Department) in order to ensure that its

policies, practices, and customs conform to national standards of constitutional policing. The

Commission shall have the functions and duties enumerated in this Section.

2. There is hereby established a Community Police Review Agency (hereinafter, Agency), which

shall have the functions and duties enumerated in this Section.

3. Nothing herein shall prohibit the Chief of Police or a commanding officer from investigating the

conduct of a Department sworn employee under his or her command, nor shall anything herein

prohibit the Chief of Police from taking disciplinary or corrective action with respect to complaints

investigated solely by the Department.

4. No later than two (2) years after the City Council has confirmed the first set of Commissioners and

alternates, the City Auditor shall conduct a performance and financial audits of the Commission and

the Agency. Nothing herein shall limit the City Auditor’s authority to conduct future performance

audits of the Commission and the Agency. The Commission shall choose an entity with appropriate

experience to conduct a performance audit.

(b) Powers and Duties. The powers and duties of the Commission are as follows:

1. Organize, reorganize and manage the Agency, ,including appointing, assigning, reassigning,

disciplining and removing staff.

2. Conduct public hearings at least once a year on Department policies, rules, practices, customs, and

General Orders.

3. Propose changes to all policies, procedures, customs, and General Orders of the Department which

govern use of force, use of force review boards, profiling based on any of the protected

characteristics identified by federal, state, or local law, or First Amendment assemblies, or matters

arising from investigations conducted by the Agency or which are the subject of litigation to which

the City and the Police Department are parties. All such proposed changes shall be submitted to the

City Council for approval or rejection. If the City Council does not approve or reject the

Commission's proposed changes within one hundred and twenty (120) days of the Commission's vote

on the proposed changes, the changes will become final.

4. Approve or reject the Department’s proposed changes to all policies, procedures, customs, and

General Orders of the Department which govern use of force, use of force review boards, profiling

Attachment 1

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based on any of the protected characteristics identified by federal, state, or local law, or First

Amendment assemblies. The Commission’s decision regarding the Department’s proposed changes

shall be submitted to the City Council for rejection or approval. If the City Council does not approve

or reject the Commission’s decision within one hundred and twenty (120) days of the Commission's

vote on the Department’s proposed changes, the Commission’s decision will become final.

5. Review and comment on all other policies, procedures, customs, and General Orders of the

Department. All such comments shall be submitted to the Chief of Police who shall provide a written

response to the Commission. and may be provided to the public at the discretion of the Commission.

The Chief of Police shall respond to the Commission's comments within thirty days of receipt.

6. Review the Mayor's proposed budget to determine whether budgetary allocations for the

Department are aligned with the Department’s Commission's approved policies, procedures, and

customs, and General Orders. The Commission shall conduct at least one public hearing on the

Department budget per budget cycle and shall forward to the City Council any recommendations for

change.

7. Require the Chief of Police to submit an annual report to the Commission regarding such matters

as the Commission shall require.

8. Report at least once a year to the Mayor, the City Council, and to the public to the extent

permissible by law, the information contained in the Chief's report in addition to such other matters

as are relevant to the functions and duties of the Commission.

9. Acting separately or jointly with the Mayor, remove the Chief of Police by a vote of not less than

five affirmative votes. Upon removal, by the Commission, by the Mayor, or by the Mayor and the

Commission acting jointly, or upon the notice of vacancy of the position of Chief of Police, the

Commission, with the assistance of the City Administrator, shall prepare and distribute a job

announcement, and prepare a list of at least four candidates and transmit the names and relevant

background materials to the Mayor. The Mayor shall appoint one person from this list, or reject the

list in its entirety and request a new list from the Commission.

10. Send the Chairperson of the Commission or another Commissioner appointed by the Chairperson

to serve as a non-voting member of any level 1 Oakland Police Force Review Board.


1. The Commission shall consist of seven (7) regular members and two (2) three (3) alternate

members, all of whom shall be Oakland residents. To the extent practicable, appointments shall be

broadly representative of Oakland’s diversity. The following shall not be eligible to serve as a

Commissioner:

a. current or former sworn police officer;

b. current City employee;

c. former Department sworn employee; or

d. c. current or former employee, official or representative of an employee association representing

sworn police officers.

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2. Within ninety (90) days of the enactment of this Section, the Mayor shall appoint three (3)

Oakland residents as Commissioners, at least one of whom shall be a retired judge or lawyer with

trial experience in criminal law or police misconduct, and one (1) Oakland resident as an alternate.

Within two hundred and ten (210) days of the enactment of this Section, these appointees must be

submitted to the Council and approved for confirmation. The Council shall approve or disapprove the

appointment within forty five (45) days. The Mayor shall appoint an Oakland resident to fill any

Commission vacancies that were previously filled by a Mayor’s appointee. If the Mayor does not

appoint a person within sixty (60) days of a vacancy in the Commission, such appointment shall be

made pursuant to subsection (3)(a) below.


a. There is hereby established a nine (9) member Selection Panel. Within ninety (90) days of the

enactment of this Section, each district City Council member shall appoint one (1) person, and the

Mayor at large member shall appoint one (1) two (2) persons, to the Selection Panel. No current or

former sworn Department employee, or officer of an employee organization representing sworn

police officers Department employee is eligible to be a member of the Selection Panel. The

Selection Panel, with the assistance of the City Administrator, will solicit applications from those

willing to serve on the Commission. The Selection Panel will review the applications, and interview

applicants to serve as members of the Commission.

b. Within one hundred and twenty days (120) of its formation, the Selection Panel shall submit a slate

of four (4) regular members and one (1) two (2) alternate members to the City Council. If the City

Council does not accept or reject the slate in its entirety within sixty (60) days, the four (4) regular

members and one (1) alternate member shall be deemed appointed.

c. Each year the Selection Panel shall re-convene, as needed, to designate replacements for the five

(5) Commissioner (four (4) regular members and one (1) alternate) vacancies initially filled by the

Selection Panel and shall submit a slate of names of such designated persons to the City Council for

acceptance or rejection. If the City Council does not accept or reject the entire slate within sixty (60)

days, all designated replacements shall be deemed appointed.

d. Each year the Mayor and each Councilmember may replace her or his assigned person on the

Selection Panel. Selection Panel members may serve up to five (5) years.

4. With the exception of the first group of Commissioners which shall serve staggered terms, the

term for each Commissioner shall be three (3) years.

5. Commission members are limited to no more than two (2) consecutive terms, except that a

Commissioner serving a term of no more than one (1) year shall be allowed to serve two (2)

additional consecutive terms.

6. To effect a staggering of terms among the Commissioners, the duration of the first group of

Commissioners shall be determined by the Selection Panel as follows: Three (3) regular members,

including one (1) of the mayoral appointees, shall have an initial term of three (3) years; two (2)

regular members, including one (1) of the mayoral appointees, shall have an initial term of two (2)

years; two (2) regular members, including one (1) of the mayoral appointees, shall have an initial

term of four (4) years. The alternate member appointed by the Selection Panel shall have an initial

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term of two (2) years and the alternate member appointed by the Mayor shall have an initial term of

three (3) years.

7. A vacancy on the Commission shall exist whenever a member dies, resigns, ceases to be a resident

of the City, is convicted of a felony, or is removed.

8. For vacancies occurring for reasons other than the expiration of a regular member’s term, the

Commission shall select one of the alternates to replace the regular member for that regular

member’s remaining term of office.

9. Members of the Commission may be removed by a majority vote of the Commission only for

conviction of a felony, substantial neglect of duty, gross misconduct in office, inability to discharge

the powers and duties of office, absence from three consecutive regular Commission meetings or five

regular meetings in a calendar year except on account of illness or when absent by permission.

(d) Meetings, Rules and Procedures 1. The Commission shall meet at least twice each month unless it determines that one meeting is

sufficient in a particular month. The Commission shall notify the public of the time and place of the

meeting and provide time for public comment at each meeting. The Commission shall meet at least

twice each year in locations other than City Hall.

2. The Commission shall establish rules and procedures for the conduct and operations of its

business. Such rules shall be made available to the public.

3. Five (5) members shall constitute a quorum. If a quorum is not established by the regular members

in attendance, the Chairperson of the Commission may designate one or more alternate members to

establish a quorum and cast votes.

4. The affirmative vote of four (4) members of the Commission shall be required for the adoption of

any motion or recommendation regarding discipline of a police officer. Motions on all other matters

may be approved by a majority of those Commission members present. To the extent permissible by

state law, including rules regarding attorney-client privilege, the vote of each Commissioner

regarding final decisions about discipline shall be made public.

(e) Budget and Staffing 1. The City shall allocate a sufficient budget for the Commission, including the Agency, to perform

its functions and duties as set forth in this section, including budgeting at least one full-time-

equivalent Deputy City Attorney attorney that is specifically charged with providing legal services to

the Agency related to investigations, adjudications, and other police discipline matters. The attorney

shall be chosen by the Commission.

2. Within sixty (60) days of the City Council’s confirmation of the first group of Commissioners and

alternates, the Oakland Citizens’ Police Review Board (hereinafter Board) shall be disbanded and its

pending business transferred to the Commission and to the Agency. The Executive Director of the

Board shall become the Interim Director of the Agency, and all other staff will be transferred to the

Agency.

3. After the effective date of this Charter section, the Commission shall identify special qualifications

and experience that candidates for Agency staff positions must have. Candidates for future vacancies

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shall be selectively certified in accordance with the Civil Service Personnel Manual, as may be

amended from time to time, except that said selective certification shall not be subject to

discretionary approval by the Personnel Director.

4. The staff of the Agency shall consist of no fewer than one line investigator for every one hundred

(100) sworn officers in the Department, rounded up or down to the nearest one hundred (100). The

number of investigators shall be determined at the beginning of each budget cycle based on the

number of sworn officers employed by the Department the previous June 1. At least one investigator

shall be a licensed attorney. The budget set-aside for such minimum staffing may be suspended for a

fiscal year or two-year budget cycle upon a finding in the budget resolution that the City is facing an

extreme fiscal necessity, as defined by City Council resolution.

5. The City Administrator shall assign Commission shall choose a staff member to act as liaison to

the Commission City Administrator and the Department and to provide administrative support to the

Commission.

6. Upon a vacancy, the Commission shall choose a new Director of the Agency. shall be hired by the

City Administrator from among two (2) or three (3) candidates submitted by the Commission. By an

affirmative vote of at least five (5) members, or by an affirmative vote of four (4) members with the

approval of the City Administrator, the Commission may terminate the Director of the Agency. The

Commission shall periodically conduct a performance review of the Agency Director.

7. Agency and Commission staff, with the exception of the Agency Director, shall be civil service

employees in accordance with Article IX of the City Charter. Background checks shall be required

for all Agency investigators that have been transferred from the Board and all subsequent

investigator applicants before they are hired by the Agency.

8. No current or former sworn employee of the Department, or current official, employee or

representative of an employee association representing sworn police officers, is eligible for any staff

position in the Agency or the Commission.

9. The Agency Director shall be classified as a Department head.

10. The Department’s Inspector General shall report to the Commission regarding any analysis of

Department policies, procedures and general orders, and the results of any audit or review conducted

by that office.

(f) Investigations 1. The Agency shall receive, review and prioritize all public complaints concerning the alleged

misconduct or failure to act of all Department sworn employees, including complaints from

Department non-sworn employees. The Agency shall not be required to investigate each public

complaint it receives, but shall investigate all disciplinary level one public complaints including but

not limited to those involving uses of force, profiling based on any of the protected characteristics

identified by federal, state, or local law, and First Amendment assemblies. The Agency shall also

investigate any other possible misconduct or failure to act of a Department sworn employee, whether

or not the subject of a public complaint, as directed by the Commission. The Agency shall conduct a

timely and complete investigation into every incident in which a sworn officer of the Police

Department discharges a firearm or activates a device that results in the physical injury or death of a

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person, even if the discharge or activation is accidental. The Agency shall forward a copy of each

complaint received to the Internal Affairs Division of the Oakland Police Department within one

business day of receipt.

2. The Agency shall have the same access to all Department files and records, in addition to all files

and records of other City departments and agencies, as the Department’s Internal Affairs Division.

The Department and other City departments and agencies shall make every reasonable effort to

respond to the Agency’s requests for files and records within ten (10) days.

3. The Agency shall make every reasonable effort to complete its investigations within one hundred

and eighty (180) days of the filing of the complaint with the Agency. Within thirty (30) days of

completion of the investigation, the Director of the Agency shall issue written findings and proposed

discipline regarding the allegations stated in the complaint to the Commission and the Chief of

Police.

4. To the extent allowed by law and after consultation with the Commission, the Agency shall

forward information to other enforcement agencies, including but not limited to the Alameda County

District Attorney, when such information establishes a reasonable basis for believing that a crime

may have been committed by a sworn Department employee.

(g) Adjudication 1. If the Chief of Police agrees with the Agency’s findings and proposed discipline, he or she shall

send to the subject officer notification of findings and intent to impose discipline.

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2. If the Chief of Police disagrees with the Agency’s findings and/or proposed discipline, the Chief of

Police shall prepare his or her own findings and/or proposed discipline, which shall be submitted to a

Discipline Committee comprised of three Commissioners. The Agency’s findings and proposed

discipline shall also be submitted to the Discipline Committee which shall review both submissions

and resolve any dispute between the Agency and the Chief of Police. Based solely on the record

presented by the Agency and the Chief of Police, the Discipline Committee shall submit its final

decision regarding the appropriate findings and proposed discipline to the Chief of Police who shall

notify the subject officer. The Discipline Committee shall not have the authority to conduct its own

investigation.

3. If the Chief of Police’s findings and proposed discipline is provided to the Agency before the

Agency’s investigation is completed, the Agency may close its investigation to allow final discipline

to proceed as proposed by the Chief. If the Agency chooses not to close its investigation, imposition

of final discipline shall be delayed until the Agency’s investigation is completed and the Agency

makes its findings and recommendation for discipline. The Agency shall notify the Chief of its

decision within five (5) business days of the Chief’s notice of completion of his or her investigation.

4. After the findings and imposition of discipline have become final, the subject officer shall have the

right to appeal the findings and imposition of discipline (hereinafter defined as suspension, fine,

demotion or termination) to the full Commission. All Department sworn employees shall also have

the right to appeal any findings and discipline imposed by the Chief of Police, when an investigation

has been conducted solely by the Department’s Internal Affairs Division, to the Commission. The

Commission shall conduct an evidentiary hearing where the Agency, the Chief of Police, and the

subject officer shall have the right to call witnesses and submit other evidence. The Commission may

delegate its authority to hold such a hearing to a hearing officer who shall be an attorney or retired

judge with ten or more years of relevant experience. The Commission shall have the sole authority to

choose the hearing officer. The hearing officer shall conduct the hearing and make a recommendation

for final decision to the Commission. At all times, the Commission shall make the final decision

regarding the findings and level of discipline to be imposed with an affirmative vote of at least four

members. The Commission's decision shall be final, subject only to other review as required by law.

5. Subsequent to the expiration of any adopted Memorandum of Understanding in effect at the time

of the effective date of this section, discipline imposed under this section shall not be subject to

arbitration notwithstanding any other Section of this Charter or terms of any agreement between the

City and employee organization representing sworn officers.

Alternative:Discipline imposed by the Commission or the Chief of Police shall be final, subject, however, to any other procedure required by this Charter or the terms of an agreement between the City and an employee organization representing sworn officers. In such other procedure, the City shall be represented by counsel chosen by the Commission.

6. The Commission shall have the same access to all Department files and records, in addition to all

files and records of other City departments and agencies, as the Department’s Internal Affairs

Division. The Department and other City departments and agencies shall make every reasonable

effort to respond to the Agency’s requests for files and records within ten (10) days.

7. The Commission shall have the power to issue subpoenas to compel the appearance of witnesses,

and the production of books, papers, records, and documents, and take testimony on any pending

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matter. The Commission or the Agency may seek a contempt order as provided by the general law of

the State for a person’s failure or refusal to appear, testify, or produce subpoenaed documents.

8. The Commission may offer to the subject officer voluntary conciliation, mediation, referral to the

Chief of Police for disposition without a hearing, or any other alternative dispute resolution method

that the Commission deems appropriate. If the subject officer agrees to use an alternative dispute

resolution method, the Chief of Police and the Agency Director jointly shall have full settlement

authority. If no settlement is reached, the subject officer shall have the right to appeal the findings

and imposition of discipline as described in subsection 4 above.

9. The one-year statute of limitations for investigating complaints shall be tolled as required by state

law when the complainant is the subject of criminal prosecution.

(h) Enabling Legislation The Commission may make recommendations to the City Council for enacting legislation or

regulations that will further the goals and purposes of this section 604. The City Council may, on its

own initiative, enact legislation or regulations that will further the goals and purposes of this section

604 after first submitting such legislation or regulations to the Commission for review and comment.

The Commission shall have forty-five (45) days to submit its comments to the City Council, such

time to be extended only by agreement of the City Council.

1900371 8 May 12, 2016

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Jesse Arreguín City Councilmember, District 4


REVISED AGENDA MATERIAL

Meeting Date: July 12, 2016 Item Number: 40 Item Description: Urban Agriculture Package Submitted by: Councilmember Jesse Arreguin Removed references to expanding urban agriculture to manufacturing zones. Explicitly mention to sale of food and crops excludes cannabis. Minor changes and clean up throughout the report.

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ldharris

Typewritten Text

4b.40

Jesse Arreguín City Councilmember, District 4


ACTION CALENDAR July 12, 2016


From: Councilmember Jesse Arreguín

Subject: Urban Agriculture Package

RECOMMENDATIONS Refer to the Planning Commission the development of an Urban Agriculture package that includes the following amendments to the Zoning Ordinance:

1. Designate “urban agriculture” as a primary and incidental use category and define as, “the production of food or horticultural crops for harvest, sale, and/or

donation, not including cannabis”. 2. Add urban agriculture as an Outdoor Use in all Commercial zones as well as the

MU-LI and MU-R zones. Permit urban agriculture in these zones on lots less than 40,000 sq. ft. as a “by-right” use. Urban agriculture on Lots lots greater than 40,000 sq. ft. will require an Administrative Use Permit (AUP).

3. Permit urban agriculture on unoccupied lots in residential zones as a “by-right”

use. 4. Define rooftop gardens and develop requirements that comply with existing

building codes. 5. Permit accessory uses, including sheds, greenhouses, trellises, pergolas and

fences, as a “by-right” use on occupied and vacant lots used for urban agriculture as long as they that satisfy requirements cited in Sections 23D.08.005 and 23E.04.040.

6. Permit group class instruction, community gatherings, and sales as a “by-right”

accessory use in commercial and residential all zones and establish conditions for these uses in residential zones based on the requirements in similar to Residential (Section 23C.20.010(B), Sales of Non-Processed Edibles. ). Specifically in the M and MM zones, update Sections 23E.72.060 and 23E.72.060, which state that sales are only permitted on 10% of the floor area, to allow goods manufactured on site to be sold as an exempt accessory use requiring only a zoning certificate.

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Referral to Planning Commission: Urban Agriculture ACTION CALENDAR July 12, 2016

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7. Permit sales of “value-added” products or processed food products to be sold on site during the sales of non-processed edibles or plants, that in compliance y with the State of California Homemade Food Act.

BACKGROUND The popularity of urban agriculture has grown rapidly in recent years. To meet this renewed interest, cities across the country have developed policies to support and encourage a variety of uses. From residential and community gardens, to urban farms, urban agriculture is not only providing healthy food to communities, but it is also developing into a mature business sector that helps local economies thrive. In 2014, U.S. local food sales totaled at least $12 billion, up from $5 billion in 2008, with experts anticipating that value hitting $20 billion by 2019. The expansion of urban agriculture is also driving the growth of green jobs and increasing entrepreneurship. Urban agriculture also improves the environment by reducing the distance food must travel to our plates, which in turn reduces green house gas (GHG) emissions, something the people of Berkeley care about deeply. In 2006, Berkeley voters overwhelmingly endorsed Measure G, making it a goal for our City to reach an 80% reduction in GHG emissions by 2050. In 2009, the Climate Action Plan (CAP) reiterated this sentiment in its Vision for 2050 and asserted that an important way to meet this goal would be to locally produce the majority of food consumed in Berkeley. The CAP states that, “In response to crises like climate change, Peak Oil, health disparities, a shaky

economy, and the loss of greenfields and farmland due to suburban sprawl, the City and its partners must do more to build a resilient and sustainable local food system”. Policy

C of Goal 2 in the Sustainable Transportation and Land Use section recommends “supporting efforts to build a more complete and local food production and distribution

systems”. In July of 2012, the Berkeley City Council amended the Zoning Ordinance to exempt the limited sales of “non-processed edibles” (i.e. fresh produce, eggs) in residential districts.

The amendment created guidelines for the sale of produce and homegrown goods, and made urban agriculture and limited sales on occupied lots an exempt zoning use. “by

right” use requiring only a zoning certificate. It also enabled small-scale Community Supported Agriculture (CSA) in residential areas. While this legislation was an important first step, it did not cover Berkeley’s commercial and manufacturing districts, nor did it permit urban agriculture in unoccupied residential lots. Currently, urban agriculture is only allowed in three zoning districts, Residential, Manufacturing (M), and Mixed Manufacturing (MM) Districts, and is prohibited in all other areas.

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The lack of definitions or permitted uses for either “urban agriculture” or “community

garden” has made existing urban farms and community gardens in most zones

technically illegal. On May 10, 2016, the City Council passed an item on consent referring to the Planning commission to: 1) define community gardens in the Zoning Ordinance, and 2) permit group class instruction, gatherings, and sales as exempt accessory uses. However, a definition of urban agriculture and uses, and permit guidelines by zone are still needed. Urban agriculture is a valuable asset for our City because it helps strengthen the health and social fabric of communities while creating economic opportunities for farmers and neighborhoods. To increase these opportunities and improve the environment by meeting our GHG emission reduction goals, we must update our Zoning Ordinance to include the following on urban agriculture: Use Designation and Definition

Designating urban agriculture as a primary and incidental use category in every zone is an important foundational step to support a diversity of uses, food security, and our local economy. Similar to San Francisco, Sacramento, and Oakland, we should designate urban agriculture a use category defined as, “the production of food or horticultural

crops for harvest, sale, and/or donation, not including cannabis”. Urban Agriculture in Commercial and Manufacturing Zones

By expanding uses to Commercial, Mixed-Use Residential (M-UR), and Mixed-Use Light Industrial (MU-LI), we can maximize urban agriculture opportunities in Berkeley, getting closer to Policy C, Goal 2 of the Climate Action Plan – a more complete and local food production and distribution system. The zZoning Uses Permitted tables distinguish between three square footage sizes in the Commercial, Mixed-Use, and Manufacturing zones – less than 20,000, 20-40,000 and more than 40,000. We are proposing that Urban urban agriculture uses below 40,000 sq.ft. (less than 1 acre) would be a by-right use and permitted in all commercial and residential districts zones throughout the City with a zoning certificate. Uses that exceed 40,000 sq.ft. would require an Administrative Use Permit (AUP). These thresholds are based on ordinances adopted in other cities. San Francisco for example allows urban agriculture “by-right” on lots of less than 40,000 square feet.

While there are no set standards for urban agriculture soils at either the Federal or State levels, the Federal Environmental Protection Agency has set a lead level of 400ppm that is widely accepted for soils. Agencies like the California Department of Health and the Berkeley Unified School District adhere to this standard as well. While testing is

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commonly not required, it is recommended, as is following the Starting Your Own Urban Garden guidelines set forth by the Community Environmental Advisory Commission in March, 2015. Urban Agriculture on Unoccupied Lots in Residential Zones

Urban agriculture and limited sales on occupied lots in residential zones is currently a an exempt zoning use.“by-right” use requiring only a zoning certificate. However, this exemption does not apply to unoccupied residential lots are not permitted. Making urban agriculture a “by-right” use on residential unoccupied lots will remove existing barriers and make it easier for non-profit organizations, schools, or community groups to more easily start a garden.

Rooftop Gardens

Rooftop gardens are an excellent way to increase urban agriculture in a city while reducing building energy usage and improving habitat corridors. Cities across the country like New York, Portland, and San Francisco have embraced this use. In addition, the Climate Action Plan explicitly points out that we should, “encourage and provide guidelines consistent with the building code for buildings to incorporate rooftop gardens that can be used for food production.” There are two types of rooftop gardens:

Extensive Green Roof: Plants are grown directly on the roof in four to six feet of substrate, covering most, if not all, of the surface. Water retention and insulation are the main goals of this type of rooftop garden. Since these typically involve minimal traffic and maintenance, they are considered “unoccupied” and are often treated as Alternative Roofing Surfaces for the purposes of most regulations.

Intensive Green Roof: Larger plants are grown as ornamentals or edibles. Because these gardens require more substantial planting depths, as well as regular maintenance, the rooftops on which they are sited are considered “occupied” and will be subject to more stringent regulations. Since there is little precedent and no specific mention of roof gardens in the planning and building codes, these setups will mostly be treated as Roof Decks.

Expansion of Exempt Accessory Uses

Although the City Council passed an item on May 10, 2016 that permitted group class instruction, gatherings, and sales as exempt accessory uses, this only applies to community gardens. By expanding these “by-right” accessory uses to all urban agriculture and including accessory structures like sheds, trellises and greenhouses, which all currently require additional permits, we can continue to support local food production by reducing permitting cost and time barriers.

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Section 23D.08.005 currently permits the use of accessory structures “by right” as long as they meet the following set back and height requirements (Ord. 6478-NS § 4, 1999):

May not exceed 10 feet in average height when any portion of structure is within four feet of a lot line.

May not exceed 12 feet in average height when any portion of structure is within four and ten feet of a lot line.

May not exceed 24 feet in average height unless a Variance is obtained

This includes “detached structures, other than an Accessory Building, in which non-habitable uses or activities other than the principal use of the property are conducted”. Additionally, Section 23D.08.060 permits the use of fences in Residential zones and Section 23E.04.040 permits the use of fences in all zones. While the former lays out some aesthetic regulations, overall the latter requires that, “no fence or un-enclosed accessory structure located on a property line or within the required yard area for a main building, shall exceed six (6) feet in height at any point, unless an Administrative Use Permit is obtained.”

With these ordinances and accompanying requirements already in place for the regulation of accessory structures and fences, if a lot is being used for urban agriculture, any accessory structure such as a shed, greenhouse, or fence should also be “by right” as long as it meets these standards. Sales for in Every Commercial Zone and Value-Added Products Although urban agriculture is allowed in the M and MM zones, Section 23E.72.060 states that sales are only permitted on 10% of the floor area. To promote and support urban agriculture as well as our local economy, we will need to update this outdated rule. Similar to what was put forth in Section 23C.20.010(B) (Sale of Non-Processed Edibles in Residential Districts), if a lot is being used for urban agriculture, incidental sales of goods manufactured on site should be an exempt accessory use requiring only a zoning certificate. In 2013, Assembly Bill 1616, the California Homemade Food Act was signed into law. The bill allows individuals to prepare and/or package certain non-potentially hazardous foods in private-home kitchens, referred to as “cottage food operations” (CFOs). As part

of the act, a two-tier operator registration and permitting system was created. Class A CFOs are those that sell prepared foods directly to the public on-site or at a community event. This tier must submit a registration application and self-certification checklist for

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approval. Class B CFOs are those that sell prepared foods either indirectly through restaurants and stores or both directly to the public as well as indirectly. This tier must submit a permit application and be inspected prior to being approved. All CFOs must be registered or permitted by their local or county environmental health agency before they can begin business. If an individual or organization is in compliance with the Homemade Food Act, a registered or permitted CFO, and is meeting all the requirements within the BMC regarding hours and visitors for on-site sales in their zone, they should be able to sell value-added or prepared products along with unprocessed foods, such as produce or plants. FINANCIAL IMPLICATIONS Staff time.

ENVIRONMENTAL SUSTAINABILITY Increasing the opportunities for urban agriculture will create more green space, increase access to fresh produce, bolster the local economy, and potentially reduce greenhouse gas emissions from food transport, which would help us meet Vision 2050 and Climate Action Plan goals. CONTACT PERSON Jesse Arreguín, Councilmember, District 4 510-981-7140

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Jesse ArreguínCity Councilmember, District 4






Subject: Urban Agriculture Package

RECOMMENDATIONSRefer to the Planning Commission the development of an Urban Agriculture package that includes the following amendments to the Zoning Ordinance:

1. Designate urban agriculture as a primary and incidental use category and define as, “the production of food or horticultural crops for harvest, sale, and/or donation”.

2. Add urban agriculture as an Outdoor Use in all Commercial zones as well as the MU-LI and MU-R zones. Permit urban agriculture in these zones on lots less than 40,000 sq. ft. as a “by-right” use. Lots greater than 40,000 sq. ft. will require an Administrative Use Permit (AUP).

3. Permit urban agriculture on occupied lots in residential zones as a “by-right” use. 4. Define rooftop gardens and develop requirements that comply with existing

building codes.5. Permit accessory uses, including sheds, greenhouses, trellises, pergolas and

fences, as a “by-right” use on occupied and vacant lots used for urban agriculture that satisfy requirements cited in Sections 23D.08.005 and 23E.04.040.

6. Permit group class instruction, community gatherings, and sales as a “by-right” use in all zones similar to Residential (Section 23C.20.010(B)). Specifically in the M and MM zones, update Sections 23E.72.060 and 23E.72.060, which state that sales are only permitted on 10% of the floor area, to allow goods manufactured on site to be sold as an exempt accessory use requiring only a zoning certificate.

7. Permit sales of “value-added” products or processed food products to be sold on site during the sales of non-processed edibles or plants that comply with the State of California Homemade Food Act.

BACKGROUNDThe popularity of urban agriculture has grown rapidly in recent years. To meet this renewed interest, cities across the country have developed policies to support and

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encourage a variety of uses. From residential and community gardens, to urban farms, urban agriculture is not only providing healthy food to communities, but it is also developing into a mature business sector that helps local economies thrive. In 2014, U.S. local food sales totaled at least $12 billion, up from $5 billion in 2008, with experts anticipating that value hitting $20 billion by 2019. The expansion of urban agriculture is also driving the growth of green jobs and increasing entrepreneurship.

Urban agriculture also improves the environment by reducing the distance food must travel to our plates, which in turn reduces green house gas (GHG) emissions, something the people of Berkeley care about deeply. In 2006, Berkeley voters overwhelmingly endorsed Measure G, making it a goal for our City to reach an 80% reduction in GHG emissions by 2050. In 2009, the Climate Action Plan (CAP) reiterated this sentiment in its Vision for 2050 and asserted that an important way to meet this goal would be to locally produce the majority of food consumed in Berkeley. The CAP states that, “In response to crises like climate change, Peak Oil, health disparities, a shaky economy, and the loss of greenfields and farmland due to suburban sprawl, the City and its partners must do more to build a resilient and sustainable local food system”. Policy C of Goal 2 in the Sustainable Transportation and Land Use section recommends “supporting efforts to build a more complete and local food production and distribution systems”.

In July of 2012, the Berkeley City Council amended the Zoning Ordinance to exempt the sales of “non-processed edibles” (i.e. fresh produce, eggs) in residential districts. The amendment created guidelines for the sale of produce and homegrown goods, and made urban agriculture on occupied lots a “by right” use requiring only a zoning certificate. It also enabled small-scale Community Supported Agriculture (CSA) in residential areas. While this legislation was an important first step, it did not cover Berkeley’s commercial and manufacturing districts, nor did it permit urban agriculture in unoccupied residential lots. Currently, urban agriculture is only allowed in three zoning districts, Residential, Manufacturing (M), and Mixed Manufacturing (MM) Districts, and is prohibited in all other areas.

The lack of definitions or permitted uses for either “urban agriculture” or “community garden” has made existing urban farms and community gardens in most zones technically illegal. On May 10, 2016, the City Council passed an item on consent referring to the Planning commission to: 1) define community gardens in the ZoningOrdinance, and 2) permit group class instruction, gatherings, and sales as exempt accessory uses. However, a definition of urban agriculture and uses, and permit guidelines by zone are still needed.

Urban agriculture is a valuable asset for our City because it helps strengthen the health and social fabric of communities while creating economic opportunities for farmers and neighborhoods. To increase these opportunities and improve the environment by meeting our GHG emission reduction goals, we must update our Zoning Ordinance to include the following on urban agriculture:

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Use Designation and DefinitionDesignating urban agriculture as a primary and incidental use category in every zone is an important foundational step to support a diversity of uses, food security, and our local economy. Similar to San Francisco, Sacramento, and Oakland, we should designate urban agriculture a use category defined as, “the production of food or horticultural crops for harvest, sale, and/or donation”.

Urban Agriculture in Commercial and Manufacturing ZonesBy expanding uses to Commercial, Mixed-Use Residential (M-UR), and Mixed-Use Light Industrial (MU-LI), we can maximize urban agriculture opportunities in Berkeley, getting closer to Policy C, Goal 2 of the Climate Action Plan – a more complete and local food production and distribution system.

The zoning Uses Permitted tables distinguish between three square footage sizes in the Commercial, Mixed-Use, and Manufacturing zones – less than 20,000, 20-40,000 and more than 40,000. Urban agriculture uses below 40,000 sq.ft. (less than 1 acre) would be a by-right use and permitted in all zones throughout the City with a zoning certificate. Uses that exceed 40,000 sq.ft. would require an Administrative Use Permit (AUP).

While there are no set standards for urban agriculture soils at either the Federal or State levels, the Federal Environmental Protection Agency has set a lead level of 400ppm that is widely accepted for soils. Agencies like the California Department of Health and the Berkeley Unified School District adhere to this standard as well. While testing is commonly not required, it is recommended, as is following the Starting Your Own Urban Garden guidelines set forth by the Community Environmental Advisory Commission in March, 2015.

Urban Agriculture on Unoccupied Lots in Residential ZonesUrban agriculture on occupied lots is currently a “by-right” use requiring only a zoning certificate. However, unoccupied residential lots are not permitted. Making urban agriculture a “by-right” use on residential unoccupied lots will remove existing barriers and make it easier for non-profit organizations, schools, or community groups to more easily start a garden.

Rooftop Gardens Rooftop gardens are an excellent way to increase urban agriculture in a city while reducing building energy usage and improving habitat corridors. Cities across the country like New York, Portland, and San Francisco have embraced this use. In addition, the Climate Action Plan explicitly points out that we should, “encourage and provide guidelines consistent with the building code for buildings to incorporate rooftop gardens that can be used for food production.” There are two types of rooftop gardens:

Extensive Green Roof: Plants are grown directly on the roof in four to six feet of substrate, covering most, if not all, of the surface. Water retention and

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insulation are the main goals of this type of rooftop garden. Since these typically involve minimal traffic and maintenance, they are considered “unoccupied” and are often treated as Alternative Roofing Surfaces for the purposes of most regulations.

Intensive Green Roof: Larger plants are grown as ornamentals or edibles. Because these gardens require more substantial planting depths, as well as regular maintenance, the rooftops on which they are sited are considered “occupied” and will be subject to more stringent regulations. Since there is little precedent and no specific mention of roof gardens in the planning and building codes, these setups will mostly be treated as Roof Decks.

Expansion of Exempt Accessory Uses Although the City Council passed an item on May 10, 2016 that permitted group class instruction, gatherings, and sales as exempt accessory uses, this only applies to community gardens. By expanding these “by-right” uses to all urban agriculture and including accessory structures like sheds, trellises and greenhouses, which all currently require additional permits, we can continue to support local food production by reducing permitting cost and time barriers.

Section 23D.08.005 currently permits the use of accessory structures “by right” as long as they meet the following set back and height requirements (Ord. 6478-NS § 4, 1999):

May not exceed 10 feet in average height when any portion of structure is within four feet of a lot line.

May not exceed 12 feet in average height when any portion of structure is within four and ten feet of a lot line.

May not exceed 24 feet in average height unless a Variance is obtained

This includes “detached structures, other than an Accessory Building, in which non-habitable uses or activities other than the principal use of the property are conducted”.

Additionally, Section 23D.08.060 permits the use of fences in Residential zones and Section 23E.04.040 permits the use of fences in all zones. While the former lays out some aesthetic regulations, overall the latter requires that, “no fence or un-enclosed accessory structure located on a property line or within the required yard area for a main building, shall exceed six (6) feet in height at any point, unless an Administrative Use Permit is obtained.”

With these ordinances and accompanying requirements already in place for the regulation of accessory structures and fences, if a lot is being used for urban agriculture, any accessory structure such as a shed, greenhouse, or fence should also be “by right” as long as it meets these standards.

Sales for Every Zone and Value-Added Products

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Although urban agriculture is allowed in the M and MM zones, Section 23E.72.060 states that sales are only permitted on 10% of the floor area. To promote and support urban agriculture as well as our local economy, we will need to update this outdated rule. Similar to what was put forth in Section 23C.20.010(B) (Sale of Non-Processed Edibles in Residential Districts), if a lot is being used for urban agriculture, incidental sales of goods manufactured on site should be an exempt accessory use requiring only a zoning certificate.

In 2013, Assembly Bill 1616, the California Homemade Food Act was signed into law. The bill allows individuals to prepare and/or package certain non-potentially hazardous foods in private-home kitchens, referred to as “cottage food operations” (CFOs). As part of the act, a two-tier operator registration and permitting system was created. Class A CFOs are those that sell prepared foods directly to the public on-site or at a community event. This tier must submit a registration application and self-certification checklist for approval. Class B CFOs are those that sell prepared foods either indirectly through restaurants and stores or both directly to the public as well as indirectly. This tier must submit a permit application and be inspected prior to being approved. All CFOs must be registered or permitted by their local or county environmental health agency before they can begin business.

If an individual or organization is in compliance with the Homemade Food Act, a registered or permitted CFO, and is meeting all the requirements within the BMC regarding hours and visitors for on-site sales in their zone, they should be able to sell value-added or prepared products along with unprocessed foods, such as produce or plants.

FINANCIAL IMPLICATIONSStaff time.

ENVIRONMENTAL SUSTAINABILITYIncreasing the opportunities for urban agriculture will create more green space, increase access to fresh produce, bolster the local economy, and potentially reduce greenhouse gas emissions from food transport, which would help us meet Vision 2050 and Climate Action Plan goals.

CONTACT PERSONJesse Arreguín, Councilmember, District 4 510-981-7140

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Subject: Berkeley Deep Green Building Initiative

RECOMMENDATIONRefer to the City Manager and Energy Commission the development of policies and programs to improve the energy efficiency and sustainability of buildings based on the Berkeley Deep Green Building proposal.

BACKGROUNDThe Berkeley Climate Action Plan (CAP) sets a bold goal of reducing greenhouse gas emissions by 33% of 2000 levels by 2020, and 80% by 2050. At a November 2015 worksession, it was reported that as of 2013, greenhouse gas (GHG) emissions have been reduced by only 9%. Although ahead of statewide trends, the trajectory of this progress is not enough to meet these targets within the set timeline.

According to the CAP, commercial and residential buildings account for 53% of the city’s GHG emissions. Berkeley has done a lot to reduce these emissions such as focusing on the construction of new development along transit corridors and promoting alternative transportation. However, transit-oriented development can miss the mark if the buildings themselves use excessive energy and water over their lifetime, or are built with energy intensive, toxic materials. Published in April 2016, the Berkeley Resilience Strategy recognized the importance of these reductions and specifically recommended we adopt policies that switch buildings to cleaner energy.

Berkeley Deep Green Building is an incentive-based program thoughtfully designed over the past year by building professionals and citizens as part of the Berkeley Zero Net Energy++ Working Group. Its purpose is to incorporate practices that support zero net energy at the building and community scale – ultra-efficient construction and deep energy retrofit projects that consume only as much energy as they produce from clean, renewable resources. The program sets forward a detailed plan to incentivize these practices, and provide guidance on how to prioritize work in a way that best supports climate action goals.

The program responds directly to the first goal of the CAP, which calls for “new and existing Berkeley buildings [to] achieve zero net energy consumption through increased

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Berkeley Deep Green Building Initiative ACTION CALENDARSeptember 13, 2016

energy efficiency and a shift to renewable energy sources”. It also fits into BESO, and State codes and programs including Title 24, Energy Upgrade California and the California Advanced Home Program. Berkeley Deep Green Building would be offered as a two-level system and would initially be voluntary with valuable incentives tied to compliance. Over time, voluntary components would be incorporated into the code, either at the State level or by the City of Berkeley. Since the program goals are tied so closely to California’s long-term energy goals, projects would be eligible for a number of energy efficiency incentives already offered by the State and PG&E.

The five main goals of Berkeley Deep Green Building are to:

1. Support zero-net energy at the individual building and community scale.2. Reduce embodied energy in building materials and practices.3. Reduce toxicity in building materials.4. Source sustainability produced materials from fair trade, fair wage and culturally

and environmentally friendly suppliers. 5. Conserve water.

Level one includes high-impact sustainability measures that address energy efficiency, toxicity, responsible sourcing, and water use. These measures are the easiest to achieve and tie into Title 24 and other state-level efforts to arrive at zero net energy. Level two includes measures that are more stringent and offer greater impact in achieving environmental and GHG reduction goals. Deep Green Building is intended to encourage/incentivize most projects to comply with level one, while further incentivizing/rewarding level two projects to take on the highest level of environmental stewardship.

Level One

1. Above-Code Energy EfficiencySite energy use intensity (EUI) maximum consumption of 20 kBtu/ sq. ft. /yr for new construction and 25 - 30 kBtu/sq. ft. /yr for remodels above a certain threshold size without consideration of solar hot water or PV.

2. Prescriptive Energy Efficiency Measures on top of Performance MeasuresCreate all-electric buildings.100% high-efficacy lighting, including LED and CFL. New appliances must meet the highest Energy Star rating or equivalent. At least one outlet in each room will be switched.

3. State-Defined “Solar Ready” Plus Additional Measures, where Sufficient Solar Access ExistsProvide the necessary components to make buildings solar ready.

4. Cleaner Installation

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Installation free of organohalogen flame retardants. Low global warming potential insulation.

5. Pre-Remodel BESO Assessment of Home Energy EfficiencySubmit paperwork from BESO assessment with permit application for remodel.

6. Post-Remodel energy, comfort, and air quality monitoringFor a period of one year following completion of construction, monitoring will be carried out for the following parameters: hot water use, appliance loads, space heating loads, interior temperature, relative humidity and CO2 levels.

7. Forest Stewardship Council (FSC) Certified WoodFSC certified wood and wood products are to be used when available.

8. Water ConservationMaximize permeable paving. Landscaping shall include 75% native plants or drought tolerate plants, and plants will be hydrozoned based on water needs. New plumbing for laundry machines, showers, and bathtubs will be greywater ready.

Level Two

1. Higher Above-Code Energy EfficiencyEnergy use intensity maximum of 14kBtu/ sq. ft./yr site energy for both new construction and remodels above a certain threshold.

2. Reduced Embodied Energy New concrete and kiln-fired brick, pavers, etc. cannot be used for non-structural purposes and should not be used in excessive amounts for structural purposes. Specify concrete with global warming potential 30% or more below standard mixes. Engineered wood in lieu of steel/concrete.

3. Solar Photovoltaic (PV) System and/or Solar Thermal System Sufficient to Achieve Zero Net Energy for the Building, where Sufficient Solar Access ExistsWhere sufficient solar access exists, install a solar PV and/or solar thermal system, sized as required to achieve zero net energy for the building.

4. Reduced Toxicity through Avoidance of Living Building Challenge Red List ChemicalsProjects cannot use products that contain chemicals on the Living Building Challenge Red List.

5. Advanced Water Conservation MeasuresDirect all shower/tub water to permitted outdoor greywater system. A minimum 1000 gallon rainwater system to be used for toilets and/or laundry.

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Similar programs have been adopted by other cities, such as Portland’s Green Building and Development Program. Incorporating this proposal into City of Berkeley policy would not only help us meet our GHG emission reduction targets, but serve as a model for other cities to follow.

FINANCIAL IMPLICATIONSStaff time.

ENVIRONMENTAL SUSTAINABILITYThe practices outlined in the Deep Green Buildings proposal will help Berkeley achieve the goals of the Climate Action Plan, Resiliency Strategy, and statewide goals to reduce greenhouse gas emissions and move towards zero net energy buildings.

CONTACT PERSONJesse Arreguin, Councilmember, District 4 510-981-7140

Attachments: 1: Berkeley Deep Green Buildings Proposal

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1

Berkeley DEEP GREEN

Building

Promoting Sustainable Building Practices to advance

Berkeley’s Climate Action and Resiliency Goals

This proposal was conceived and prepared by the

Berkeley Zero Net Energy++ Working Group

A group of citizens and building professionals dedicated to making Berkeley’s Building Code a model of green, non-‐toxic, sustainable building practices and achieving Berkeley’s Climate Action Plan and Resilience Strategy goals by inspiring, educating and supporting the community

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Attachment 1

2

Founder:

Brian C. Harris

Co-Conveners: Sophie Hahn and Cate Leger

Working Group and Authors: Bronwyn Barry, co-‐president, Passive House California, Amy Dryden, Senior Technical Manager, Build It Green,

Ann Edminster, Principal, Design AVEnues LLC, Gary Gerber, CEO and Founder, Sunlight and Power, Jyothsna Giridhar, Sustainable Design Consultant, EDS Sophie Hahn, Member, Sierra Club Northern Alameda County

Executive Board, Kelli Hammargren, Citizen Advocate,

Brian C. Harris, Zero Net Energy Working Group, Cate Leger, Northern California Chapter Board Member, Architects

Designers and Planners for Social Responsibility, William Malpas, Malpas Sustainable Design,

Nabih Tahan, Arc AIA Founder Passive House California, Greg VanMechelen, Northern California Chapter Board Member,

Architects Designers and Planners for Social Responsibility

Contributing Consultants:

Christina Bertea, Member, Greywater Action Mary Ann Gallagher, Senior Partner, ParCenTra, Zero Net Energy Working Group and Board Member, Architects, Designers and

Planners for Social Responsibility Avery Lindeman, Deputy Director, Green Science Policy Institute Melanie Loftus, Senior Consultant, Melanie Loftus Consulting

Supporters:

David Arkin, Carolyn Ely, Larry Strain

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Executive Summary The purpose of this initiative is to incorporate practices that support zero net energy at the building and community scale, to reduce embodied energy in building materials and practices, to reduce toxicity in building materials, to source sustainably produced materials from fair trade, fair wage, and culturally and environmentally sustainable suppliers and to save water. Many new residential developments have been approved in the City of Berkeley in recent years, and even more are in the pipeline. At the same time, existing buildings comprise the vast majority of Berkeley’s building stock. Most of these buildings, existing and new, consume excessive energy and water. While many new projects have the benefit of being sited on transit corridors, they often fall short of their full potential to reduce environmental impacts because they do not incorporate best practices for Green Building. Berkeley’s recently adopted Building Energy Savings Ordinance (BESO) helps identify potential energy conservation measures, but does not provide incentives and specific guidance to support homeowners, builders and developers in meeting Environmental and Greenhouse Gas (GHG) reduction goals.

Berkeley Deep Green Building proposes an incentive-‐based path towards buildings that meet Berkeley’s environmental and GHG reduction goals, protect the health and safety of Berkeley workers and residents, and support the health and sustainability of communities across the globe. The program is intended to be voluntary and incentive-‐based in the beginning, leading to the adoption of mandatory measures in later stages. In line with the vision of California’s Long Term Energy Efficiency Goals, the program would initially focus on the residential sector, to help achieve the State’s 2020 residential sector energy goals. Over time, Berkeley Deep Green Building would incorporate measures for the non-‐residential sector, aligning with the State’s 2030 targets for non-‐residential structures.

Berkeley Deep Green Building ties into Berkeley’s Climate Action Plan and BESO, and into State codes and other programs such as Title 24, Energy Upgrade California and the California Advanced Home Program. In addition to new incentives to be provided by the City of Berkeley, homeowners, builders and developers participating in Berkeley Deep Green Building would be eligible for a number of incentives already offered by the State and PG&E.

Berkeley Deep Green participation would be offered in two Levels. Level 1 includes high impact sustainability measures that address energy efficiency, toxicity, responsible sourcing and water use. These measures are the easiest to achieve and tie into Title 24 and other State-‐level efforts to arrive at Net Zero Energy. Level 2 measures are more stringent and offer greater impact in achieving environmental and GHG reduction goals. Berkeley Deep Green is intended to encourage/incentivize most projects to comply with Level 1, while further incentivizing/rewarding Level 2 projects to take on the highest levels of environmental stewardship.

Berkeley Deep Green Building would not only help to achieve Berkeley’s environmental and GHG reduction goals but can also be a model for other cities to follow, helping to achieve long term sustainability goals in communities across the United States, and around the globe.

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Table of Contents Executive Summary ..................................................................................................................... 3

Introduction .................................................................................................................................... 6

Program overview ........................................................................................................................ 6

Alignment with Berkeley and Statewide goals ......................................................................... 7

Program components .................................................................................................................. 8

Berkeley Deep Green Building: Level 1 ........................................................................................ 8

Berkeley Deep Green Building: Level 2 ........................................................................................ 9

Incentives ..................................................................................................................................... 10

Education and outreach ............................................................................................................. 11

Timeline for review ..................................................................................................................... 11

Residential versus commercial ................................................................................................. 12

New construction and remodeling ............................................................................................ 12

Berkeley Deep Green Building and other City, Regional and State programs .................. 12

Appendix A .................................................................................................................................. 14

Level 1 and Level 2 components are explained in more detail below. ............................................. 14

Berkeley Deep Green Building: Level 1 ...................................................................................... 14

1) Above-‐code energy eff ic iency (performance component) . . . . . . . . . . . . . . . . . . . . . . 14

2) Prescriptive energy eff ic iency measures on top of performance component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3) State-‐defined ‘solar ready’ plus additional measures, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

4) Cleaner Insulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5) Pre-‐remodel BESO assessment of home energy eff ic iency. . . . . . . . . . . . . . . . . . . . . 21

6) Post remodel energy, comfort, and air quality monitoring (operational rating) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

7. FSC-‐certified wood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

8. Water Conservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Berkeley Deep Green Building: Level 2 ...................................................................................... 26

1. Higher above code energy efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Reduced embodied energy (prescriptive measures) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

3. Solar photovoltaic (PV) system and/or a solar thermal system .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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4. Reduced toxicity through avoidance of Living Building Challenge Red List chemicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

5. Advanced Water Conservation Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Appendix B……………………………………………………………………………………....34

Berkeley Deep Green Building Program

Community Review Comments -‐ June 14, 2016……………………………………………………………………..34

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Introduction Berkeley is building again. Over 2000 new units have been approved in the past 3 years, and many are under construction. Another thousand are in the pipeline—with more sure to come. Many of these new developments are on or near major transit corridors, qualifying them as ‘transit-‐oriented development’, which is environmentally preferable to development that is dependent on automobiles.

But while reducing dependence on automobiles is an important goal, transit-‐oriented development falls short of its potential when buildings themselves use excessive energy and water over their lifetimes or are built with energy intensive, toxic and/or unsustainably produced materials.

At the same time, existing structures form a sizeable percentage of Berkeley’s building stock. Berkeley’s recently enacted Building Energy Savings Ordinance (BESO) requires all home owners to audit their home performance and will help—over time—to identify energy efficiency improvements for existing buildings. However, there are few incentives to implement improvements and little guidance on how to prioritize work to best support climate change goals.

Berkeley Deep Green Building is a proposal for an incentive-‐based path toward buildings that meet Berkeley’s environmental and greenhouse gas (GHG) reduction goals, protect the health and safety of Berkeley workers and residents, and support the health and sustainability of communities across the globe.

Program overview Berkeley Deep Green Building incorporates best practices to:

1. Support zero net energy at the individual building and community scale

2. Reduce embodied energy in building materials and practices

3. Reduce toxicity in building materials

4. Source sustainably produced materials from fair trade, fair wage and culturally and environmentally sustainable suppliers; and

5. Conserve water.

Some of the components are similar to those in the US Green Building Council's LEED, Build It Green's Green Point Rated, and the International Living Future Institute's Living Building Challenge. However, Berkeley Deep Green while tied into California Codes and mandates for energy and water efficiency, is tailored to Berkeley with its limited rainfall and high urban

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density. In addition, it acknowledges the latest science in environmental health and it looks holistically at a building's global warming impacts.

The program is intended to be voluntary and incentive-‐based at first, leading eventually to the adoption of new mandatory requirements, as appropriate.

The program’s methods are to:

INSPIRE↦EDUCATE↦ INCENTIVIZE↦EVALUATE & INCORPORATE

In addition to incentivized measures and eventual rules, Berkeley Deep Green Building includes a robust educational component, with outreach and programs for homeowners, contractors, architects, engineers, landlords, developers, lenders, appraisers, and members of the public.

Initially, Berkeley Deep Green Building applies only to residential buildings, including new buildings and remodeling projects over a specific size. This tracks the State’s emphasis on residential buildings and reflects the complexities of devising regulations applicable to nonresidential enterprises with vastly different needs and uses, from offices full of computers to hospitals, grocery stores, factories and labs with equipment, heat, lighting, refrigeration and other specific needs that vary widely. In a later phase, the program will be extended to commercial, manufacturing and office buildings of all types.

Alignment with Berkeley and Statewide goals Berkeley Deep Green Building helps implement Berkeley’s 2009 Climate Action Plan, Berkeley’s 2016 Resilience Strategy, the California Energy Commission’s Title 24, and California’s Zero Net Energy goals, and reflects the community’s commitment to health, sustainability, and equity.

According to Berkeley’s Climate Action Plan, commercial and residential buildings account for 53% of the city’s GHG emissions. The first goal of the Plan is for “new and existing Berkeley buildings [to] achieve zero net energy consumption through increased energy efficiency and a shift to renewable energy sources.” Clean and reduced energy use in buildings is also a key goal of Berkeley’s Resilience Strategy.

The State of California, through Title 24, is continually increasing energy efficiency standards for buildings and is now preparing regulations for all new residential construction to be 'zero net energy’ by 2020. Berkeley Deep Green Building supports achievement of the state’s Title 24 and zero net energy goals.

The usage of natural gas represents 65% of Berkeley buildings’ GHG emissions. Incentives to improve energy efficiency and shift from natural gas to electricity make the city’s GHG reduction goals more attainable, especially if the proposed Alameda County Community Choice Energy project comes online, offering even cleaner electricity to Berkeley residents.

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Technologies exist to support zero net energy in new construction and remodels, but not all building professionals are aware of these opportunities. New electric heat pumps for space and water heating are up to 30-‐40% 1 more efficient than gas furnaces. New materials for reducing air infiltration and requirements for increased insulation levels reduce the amount of space heating required. These measures, coupled with reduced plug loads, high-‐efficacy lighting, and solar hot water help to minimize electricity demand. Berkeley Deep Green Building incentivizes all of these, and more.

Program components The Berkeley Deep Green Building program is offered in two Levels, providing a roadmap to achieve its goals. Initially, the program is envisioned as voluntary, with valuable incentives tied to compliance. Over time, voluntary components will be incorporated into the code, either at the state level or by the City of Berkeley. Since program goals are tied to California’s long term energy goals, projects will be eligible for a number of energy efficiency incentives offered by the State as well as for incentives that the City of Berkeley may choose to offer.

Level 1 includes high-‐impact energy efficiency measures that generally are relatively easy to achieve, and addresses toxicity, responsible sourcing, and water use. Many of these measures dovetail with Title 24 and with state-‐level efforts to arrive at zero net energy. Incentives to achieve Level 1 standards should be substantial enough to induce most or all projects to comply. Level 2 standards reach further and are tied to additional incentives. In addition, not all components must be adopted to obtain incentives, though more comprehensive adoption will be more highly rewarded.

Each of the components listed below is discussed in more detail in Appendix A.

Berkeley Deep Green Building: Level 1 1. Above-‐code energy efficiency performance standard

2. Prescriptive energy efficiency measures

a. 100% electric—no gas

b. 100% high-‐efficacy lighting

c. Best-‐in-‐class major appliances and equipment

d. Switched outlets

3. State-‐defined ‘solar ready’ plus additional measures, where sufficient solar access exists

4. Cleaner insulation

a. Insulation free of organohalogen flame retardants 1 http://www.climaticva.com/electric-‐heat-‐pumps-‐vs-‐gas-‐furnaces/

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b. Low global-‐warming-‐potential insulation

5. Pre-‐remodel BESO assessment of home energy efficiency

6. Post-‐remodel energy, comfort, and air quality monitoring

7. Use of 100% Forest Stewardship Council (FSC)–certified sustainably harvested wood

8. Water conservation measures

a. 100% extra-‐low-‐flow fixtures and appliances

b. Water-‐permeable paving

c. Water-‐conserving landscape (edible landscaping exempt)

d. Laundry-‐to-‐landscape greywater and greywater-‐ready tub and shower plumbing

Berkeley Deep Green Building: Level 2 1. Energy efficiency performance standard higher than in Level 1

2. Reduced carbon footprint (embodied energy) of building

a. Reduced concrete use (for hardscape and other nonstructural applications)

b. Low-‐carbon-‐footprint concrete

c. Engineered lumber and wood in lieu of steel/concrete.

d. Alternative and creative measures to reduce carbon footprint and to support responsible sourcing in a special, flexible category:

i. Salvaged siding

ii. Earth finishes

iii. Fair trade/sustainably produced/green and fair labor–certified materials

iv. Other high recycled content, locally sourced/produced and rapidly renewable materials

3. Installed solar photovoltaic (PV) system and/or solar thermal system sufficient to achieve zero net energy for the building, where sufficient solar access exists

4. Reduced toxicity through avoidance of Living Building Challenge Red List chemicals

5. Advanced water conservation measures

a. Operational tub and shower greywater system

b. Operational rainwater collection for non-‐potable domestic use

To learn more about each of the Level 1 and Level 2 measures, refer to Appendix A, which is organized in the same manner as the above lists.

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Incentives Over time, some or all of the incentive-‐based measures in Berkeley Deep Green Building may be incorporated into the building code, while new measures (which become available through industry innovations) can be included in the incentive-‐based program. For the program to be successful, incentives must be meaningful, motivating and easily understood. Specific incentives will be developed in collaboration with city staff.

Tools and motivators might include assistance with financing (permit fee rebates, low interest loans), relaxation of zoning requirements, bonuses, acceleration of permitting and inspection process, and/or public recognition through competitions, awards and PR events.

In addition, there are a number of local, state and federally sponsored incentives that may apply to projects. These include the following incentives and programs.

1. Property Assessed Clean Energy (PACE)

Up to 100% financing of energy efficiency, water efficiency and renewable energy projects with little or no upfront costs, and payment through existing property tax bill. http://energycenter.org/policy/property-‐assessed-‐clean-‐energy-‐pace

2. Bay Area Multi-‐Family Building Enhancements (BAMBE)

Cash rebates and free energy consulting for multifamily properties that undertake energy efficiency enhancements. http://bayareamultifamily.org

3. Property tax exclusion for solar energy systems

Customers who install active solar systems such as solar water heaters and solar space heaters will not have their property tax re-‐assessed. (http://programs.dsireusa.org/system/program/detail/558).http://www.pv-‐tech.org/news/california_property_tax_exemptions_for_pv_systems_extended_to_2025

4. Zero net energy pilot program by PG&E

Supports research, conducts workshops and outreach activities, and provides design and technical consultations to customers.

5. Energy efficient mortgages (EEM)

The Federal Housing Agency’s Energy Efficient Mortgages program helps families save money on their utility bills by enabling them to finance energy efficient improvements with their FHA-‐insured mortgage. The energy package is the set of improvements that the Borrower chooses to make based on the recommendations and analysis performed by a qualified home energy assessor. (http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/eem/energy-‐r)

6. PG&E residential energy efficiency rebate program

a. PG&E offers rebates to eligible residential customers who install energy efficient space conditioning systems and appliances. (http://programs.dsireusa.org/system/program/detail/1428)

b. A similar program is extended to multifamily residential buildings.

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7. PG&E California Advanced Homes (CAHP) incentives For builders of new homes, incentives are applicable to homes that display a 15% to 45% improvement over Title 24 2008 codes. Additional incentives are available when onsite solar PV systems are installed or to homes that display more than 40% improvement over Title 24 2013. http://cahp-‐pge.com/

Education and outreach Education and outreach are key to the success of the Berkeley Deep Green Building program, ensuring that property owners as well as building, finance and regulatory professionals understand deep green building practices in general and their value to both the environment, and to the bottom line. Outreach is intended to inspire stakeholders to participate in the Berkeley Deep Green Building program, and can appeal to long term financial advantages (lower operating costs and increased desirability/rents/prices for super green and non-‐toxic buildings), concern for global warming and the welfare of future generations, and civic pride.

Targets for education and outreach will include homeowners, contractors, architects, engineers, landlords, developers, lenders, appraisers, property managers, city planners and staff, building inspectors, press and members of the public.

The education and outreach program might include:

1. Classes covering all measures included in the Berkeley Deep Green Building programs program, organized in collaboration with PG&E, Build It Green, Realtor Associations, the Berkeley Permit Service Center and/or Berkeley’s Adult School

2. A citywide design competition for energy efficient building retrofits

• Winners displayed at Permit Service Center or other locations

• PR/media attention

• Awards ceremony or recognition at a City Council meeting

3. Permit Service Center displays and brochures

4. Promotional items such as high-‐performing Smart Strips, low-‐flow WaterSense showerheads, etc.

Timeline for review Energy efficiency measures, renewable energy production technologies and green, certified and non-‐toxic building materials are evolving rapidly. Berkeley Deep Green Building anticipates periodic review of program components by planning staff and stakeholders, every 2-‐3 years. Some program components may be incorporated into the building code as mandatory, while others can be modified, moved to a different Level or updated, and new components can be added. Mandatory periodic review builds in a mechanism for timely adoption of new materials, metrics and methods, as they become available and feasible. State-‐level changes can

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be incorporated as well, such as Title 24 updates. Finally, regular review will allow staff to evaluate the success of individual measures and to modify the program as appropriate.

Residential versus commercial Berkeley Deep Green Building initially focuses on residential projects for several reasons. Commercial buildings are much more varied in their construction and use, requiring a more flexible set of goals. A manufacturing plant requiring 24/7 refrigeration or heat will have very different energy requirements from an office. An initial focus on residential energy efficiency is also consistent with the state’s Long Term Energy Efficiency Strategic Plan, which targets zero net energy for all new residential construction by 2020 and for new commercial construction by 2030.

In the residential sector, recent technological changes enable dramatic improvements in energy performance and a shift to all-‐electric energy. Electric heat pump hot water heaters and new materials for reducing air infiltration have recently become commercially available, and PV prices have dropped significantly in the last 5 years. Commercial projects are addressed to some degree already under other City of Berkeley green building programs. Over time, commercial buildings can and should be incorporated in the program.

New construction and remodeling Berkeley Deep Green Building components and incentives need to be tailored to new construction and remodels and various building types, i.e. single family, small multifamily and large multifamily. For remodels, thresholds will have to be established to determine when it would be appropriate for Deep Green features to be incorporated. City Staff are in the best position to consider what thresholds are feasible, and dovetail with other phased in requirements.

Berkeley Deep Green Building and other City, Regional and State programs Berkeley Deep Green Building ties into other ambitious energy efficiency goals. These include:

1. Building Energy Savings Ordinance (BESO)

BESO requires all building owners in Berkeley to complete an energy efficiency audit, helping them save energy and encouraging them to participate in various State-‐sponsored whole building programs. The assessment is carried out by qualified energy assessors who inform the building owners of incentives and rebates specific to the energy efficiency opportunities of the building.

2. Title 24

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Title 24 is a stringent, energy efficient, compulsory State building code. It is subject to triennial review and the requirements are revised based on available techniques and technologies. It is anticipated that Berkeley Deep Green Building will use the same metrics as those in force under Title 24, and that measures outlined in the Deep Green program will treat Title 24 as a baseline upon which Berkeley Deep Green Building will improve.

3. Energy Upgrade California

Energy Upgrade California is a state program supported by CPUC, CEC, utility companies, non-‐profit organizations, small businesses, and various state agencies to help realize California’s climate action and energy efficiency goals. It has a partnership with Energy Star to promote the use of energy efficient products and practices.

This platform also informs home owners of the availability of incentives and rebates. Since it is anticipated that Berkeley Deep Green Building structures would be eligible for a number of incentives and rebates from the state and utility companies, Energy Upgrade California has the potential to encourage home owners to adopt Berkeley Deep Green Building and help realize California’s climate action goals.

4. California Long Term Energy Efficiency Strategic Plan

This plan was formulated in 2008 and adopted by CPUC as a single roadmap to achieve maximum energy efficiency in California. The goal of the plan is that all new homes will be zero net energy or zero net energy–ready by 2020. Similarly, Berkeley Deep Green Building encourages all new and existing homes in the City of Berkeley to rapidly become zero net energy.

5. California Advanced Home Program (CAHP)

CAHP is a pay-‐for-‐performance whole building approach that aims to improve market demand for energy efficient single family and multi-‐family homes. It encourages builders of new homes to exceed Title 24 Part 6 by 15 to 45%. (New Residential Zero Net Energy Action Plan – pg. 14).

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Appendix A

Level 1 and Level 2 components are explained in more detail below.

Berkeley Deep Green Building: Level 1 1) Above-‐code energy efficiency (performance component) Site energy use intensity (EUI) maximum consumption of 20 kBtu/ sq. ft. /yr for new construction and 25 -‐ 30 kBtu/sq. ft. /yr for remodels above a certain threshold size without consideration of solar hot water or PV.

Rationale: Studies consistently show that energy efficiency is the most cost effective and generally the most environmentally benign method of reducing GHG emissions. Mainstream technologies available now and common building techniques can easily and significantly reduce building energy usage. In many cases, the upfront costs of improving energy efficiency are recouped with energy cost savings in under 15 years.

A performance target allows for flexibility in reducing energy demand, through a combination of design strategies depending on the specifics of the project. Berkeley’s initial target EUI is higher than the current 2030 Challenge goal of 15.4 to 19.1 kBtu/sq. ft. /yr site energy. However, the 2030 Challenge allows for the inclusion of onsite generation of energy through solar hot water and PV in meeting the targets. For reference, the Passive House EUI maximum is 38 kBtu/sq. ft. /yr source energy. (This would be 14.2 kBtu/sq. ft./yr if translated to site energy. In addition, the EUI target does include onsite PV offsets but only after a certain efficiency threshold has been met for the building envelope and solar hot water is included though as it is not related to envelope measures.) Finally, several cities and Architecture 2030, with funding from the Rockefeller Brothers Fund, are developing a metric for setting EUI targets that in the future may be appropriate for Berkeley.

The current average energy use intensity of residential buildings in the western states is about 40 KBtu/sq. ft. /yr site energy. Analysis performed by Arup and Davis Energy Group on how to achieve state energy use reduction goals shows that close to half of the average energy use can be eliminated through the standard palette of energy efficiency measures:

• Greater insulation. • Considered placement of windows and addition of thermal mass to optimize passive

solar gain and daylighting. • High efficacy lighting and vacancy controls. • Reduced plug loads. • High efficiency appliances and heating equipment. • Better air sealing. • Energy efficient windows.

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References

http://aceee.org/press/2014/03/new-‐report-‐finds-‐energy-‐efficiency-‐a

http://architecture2030.org/2030_challenges/2030-‐challenge/u-‐s-‐and-‐canadian-‐target-‐tables/

https://en.wikipedia.org/wiki/Passive_house

http://buildingscience.com/documents/digests/bsd152-‐building-‐energy-‐performance-‐metrics

The Technical Feasibility of Zero Net Energy Buildings in California, Dec. 2012, by Arup and Davis Energy Group, prepared for PG&E and other California utilities.

Getting to Zero Carbon Buildings Sector, Rockefeller Brothers Fund, A meeting of City, State and Building Experts, March 14 -‐ 16, 2016

2) Prescriptive energy efficiency measures on top of performance component

a) All-‐electric. Concurrent with meeting energy efficiency performance standard outlined in component 1, building to receive all power from electricity. No gas line to be supplied to the site.

b) 100% high-‐efficacy lighting. All lighting, both interior and exterior to be high efficacy, such as fluorescent or LED as per Title 24 2016 definitions.

c) Best-‐in-‐class major appliances/equipment. All new refrigerators, freezers, stoves, cooktops, dishwashers, washing machines, water heaters, and HVAC appliances must meet one of the following criteria: i) Energy Star Most Efficient, OR ii) CEE Tier 3, OR iii) Enervee 90+ (or whatever benchmark seems most comparable to the two above)

d) Switched outlets. At least one outlet in each room will be switched.

Rationale: The prescriptive energy efficiency measures are designed to both shift energy demand from fossil fuels to renewables and to reduce demand that is not easily addressed by the performance standards in component 1.

Requiring all-‐electric homes allows for energy demand to be met with 100% renewables, either onsite or off. In the past, because of line losses and the inefficiency of turning fossil fuel energy into electricity, electricity delivered to the home represented 3 times as much embodied energy as fossil fuel. This is now changing as more and more PV and wind power generation comes online. Both the State’s commitment to increasing the Renewable Portfolio Standard, and Berkeley’s intention to migrate to cleaner energy sources through the Alameda County Community Choice Energy program are quickly shifting the power sources for electricity to clean renewables.

In addition, recent developments in heating and lighting technologies have dramatically improved the performance of many sources of electrical demand. Heat pumps are more than

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twice as efficient as the resistance heaters they are replacing. LEDs and fluorescent lights are as much as 10 times more efficient than incandescent and last over 5 times as long. By requiring use of these new technologies, electrical demand can be dramatically reduced.

Further reductions can be achieved by requiring best-‐of-‐class major appliances and switched outlets. Energy Star, administered by DOE, is the main program that evaluates and rates appliance energy efficiency. Appliance efficiency is determined based on specific parameters for each category:

• Television: Power consumption under various modes, display screen size • Computer monitor: Power consumption under various modes, display screen size • Clothes washer: Energy efficiency, water efficiency, capacity • Dishwasher: Energy efficiency, water efficiency, size • Refrigerator and freezer: Energy efficiency, volume • Ventilation fans (Range hoods, bathroom and utility room fans): Efficacy, noise • Ventilation fans (Inline fans): Efficacy

Energy Star Most Efficient is a program that identifies the most efficient Energy Star products in each category.

CEE (Consortium of Energy Efficiency) uses the Energy Star as a benchmark for various tiers:

• CEE Tier 1 is aligned with Energy Star program. Top 25% of models. • CEE Tier 2, 3 and 4: Tiers above Energy Star minimum to be eligible for incentives. If

incentives are offered, this is tied with Save More. Cost effective for customers with incentives.

• CEE Advanced Tier: Stretch targets. Attracts innovations. Top performance. Cost effective in future.

Enervee is a platform-‐oriented company that collects performance data of various appliances, and gives a score from 0 to 100 (higher the score the more efficient the product), for each product based on energy efficiency, other product specific features and cost. Enervee claims that the data and the scores are updated on regular basis and presents the most accurate information based on market transformations.

Switched outlets will also enhance energy efficiency by allowing electronic equipment to be easily shut off completely. Many electronic devices draw a small current of electricity all of the time, even when they are not in use. These loads can be significant and while state and federal regulations should be promulgated that eliminate these ghost loads, providing users with a simple switch to turn them off will help in the meantime.

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(https://www.cee1.org/content/cee-‐tiers-‐and-‐energy-‐star)

References:

https://www.energystar.gov/products/appliances https://www.energystar.gov/index.cfm?c=partners.most_efficient_criteria https://www1.eere.energy.gov/buildings/appliance_standards/product.aspx/productid/43 https://www.cee1.org/content/cee-‐program-‐resources http://www2.buildinggreen.com/blogs/electric-‐heat-‐comes-‐age-‐installing-‐our-‐mini-‐split-‐heat-‐pump

http://www.coonrapidsmn.gov/DocumentCenter/Home/View/2420

3) State-‐defined ‘solar ready’ plus additional measures, where sufficient solar access exists

Where sufficient solar access exists, provide the necessary components to make building solar ready as per Section 110.10 of the 2013 Building Energy Efficiency Standards (BEES), with the following additions, deletions and exceptions:

Photovoltaic (PV):

a) Main Service panel: if a 200A service, busbar must be 225A minimum with a 200A maximum main breaker; if 100A service, busbar must be 125A minimum with a 100A maximum main breaker. There must be a reserved space in the panel for a double pole circuit breaker located at the opposite (load) end from the input feeder of the busbar.

b) No center-‐fed main service panels will be used. c) Inverter location: minimum 3’ wide unobstructed space (from ground to eave above)

adjacent to the main service panel; include NEC required working clearance.

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d) Module sizing and location: sufficient area for PV modules must be reserved which allows for the anticipated power needs to achieve a zero net energy home, plus the anticipated power needs for Electric Vehicle charging, where parking is provided or required. For a typical zero net energy home there should be space allocated for 10 kW of PV, and if there are additional power needs (such as an electric spa) that power need must also be taken into account. The reserved PV roof area shall be unobstructed and unshaded and facing between 110° to 270° from North: Minimum dimension of the reserved area to be 11’ in the ridge-‐to-‐eave dimension, and assuming a power density of 15W/sf; allow for current fire code ridge and side clearances beyond the designated module areas (currently 3’ to ridge and 3’ clear on one side)

e) Clear and unobstructed pathway from the identified inverter location (preferably next to the main service panel) to the identified roof area.

f) OSHA approved fall arrest anchors installed at or near ridges; 5000 lb. capacity each, 8’ maximum on center covering the designated module area.

Solar Thermal:

a) Solar water heater collector location: provide adequate unobstructed and unshaded roof area for an appropriate designated collector square footage on roof(s) facing between 110° (E) to 270° (W). Appropriate designated square footage shall be defined as 0.75 square feet per expected gallon-‐per-‐day (gpd) consumption for south facing pitched roofs or 1.5 square foot per expected gpd consumption for flat roofs. Area to be sized such that typical solar collector sizes can fit (no less than 4’x8’ dimensions).

b) Designated location for solar storage tank. Size of storage capacity to be one gallon per gpd of expected daily use (i.e.: A single family home with an expected hot water consumption of 65 gallons per day per household would need a 65 gallon storage capacity). Designated location must be selected to minimize heat losses between hot water heater (within 5 feet of hot water heater or on the roof if ICS or thermosiphon is selected).

c) Minimum (1) 15A 120V receptacle on its own circuit within 5’ of the solar storage tank location for solar water heating pumping and controls.

d) Minimum (1) 50A 240V circuit terminating within 5’ of the water heater location for electric/heat pump water heater.

e) Solar water heater piping: either a chase of a minimum 12” x 12” dimension from within 5’ of the storage tank location to a location even with or within 3’ below the bottom of the designated solar collector location; or a pair of ¾” type M copper pipes plumbed and pressure tested to 100 psi from within 5’ of the storage tank location to a location even with or within 3’ below the bottom of the designated solar collector location.

f) Solar water heating conduit: provide a ½” EMT conduit with pull twine from the solar storage tank location to the roof exit location for solar control wiring. Seal the conduit against weather where it is exposed to the exterior.

g) Solar pool heating: Space must be allowed either on the roof or on the ground for a collector area that is 70% of the anticipated surface area of the pool, facing between 110° (E) to 270° (W). A pathway should be identified for (2) 2” pipes and (1) ½” conduit

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from the pool equipment area to the bottom of the designated solar collector location, and if feasible the pipe pathway should be sloped such that water could continuously drain back to the pool equipment area.

h) The above provisions are intended to be additive to the solar ready provisions of the existing BEES, except in those cases where they contradict, preclude or replace existing provisions, in which case these provisions supersede.

4) Cleaner Insulation a) Insulation free of organohalogen flame retardants. No insulation used on the project

can contain halogenated flame retardants.

b) Low global-‐warming-‐potential insulation. No insulation can have a lifetime global-‐warming-‐potential greater than .05/sq ft* R based on chart below developed by Building Green and the Inventory of Carbon & Energy (ICE), Version 2.0, by Prof. Geoff Hammond & Craig Jones

Rationale: Organohalogen flame retardants (sometimes also called halogenated flame retardants, or HFRs) are a class of chemical that is commonly used as flame retardants in polyurethane and polystyrene materials, including insulations. They are also found in some polyisocyanurate insulations. These chemicals have been linked to a host of serious health and developmental problems and also lead to the formation of toxic halogenated dioxins and furans in fires or during thermal processing (Shaw et al, 2010; US EPA 2014; Weber & Kuch, 2003; Ebert & Bahadir, 2003). Many are persistent and bioaccumulative. Building insulation, including disposal at end of useful life, is estimated to be a significant source of these chemicals in the environment (ECHA 2009). 22 chemicals have been banned internationally under the Stockholm Convention on Persistent Organic Pollutants: all are organohalogens, and one is commonly used in polystyrene insulation materials. The American Public Health Association has issued a policy statement calling for reduced use of these flame retardants to protect public health (APHA 2015).

Embodied energy is the measure of the energy that goes into harvest/extraction, manufacture and transport of a product. Reducing and minimizing the embodied energy of materials used in construction, reduces the carbon footprint of the buildings. Reducing the carbon footprint of buildings reduces GHG emissions at the start of a building's life, when they are needed most. Because of the delayed impact of GHGs and the self-‐reinforcing loops that GHGs trigger, reductions now are more significant than reductions in the future. By limiting the global-‐warming potential of insulation materials to .05/sq. ft./R, highly insulated buildings will ‘pay back’ the added carbon footprint of this extra insulation generally in 5 years at most. The only insulations that currently don’t meet this standard are extruded polystyrene and closed-‐cell spray polyurethane.

Because of the chemicals commonly used to expand the foam, extruded polystyrene and closed cell spray polyurethane have an extremely high lifetime global-‐warming potential. In a 2010 study by Buildinggreen.com (“Avoiding the Global Warming Impact of Insulation,” by Alex Wilson, Environmental Building News, Vol 19.6), the payback from using extruded polystyrene and closed-‐cell spray polyurethane foam as an additional insulation layer on the outside of a 2 x 6 framed and insulated house was a minimum of 30 years for a house in a very cold climate like

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Boston. With less than half of the heating and cooling loads of Boston, the payback time in Berkeley for a similar house would be a lot longer.

Another study by Passive House researcher Rolf Jacobson, shows payback periods of 20+ years from using these high global-‐warming-‐potential insulations to meet Passive House energy efficiency goals. (“Comparing 8 Cold Climate PH Houses,” by Mary James, Home Energy Magazine, Oct. 2014)

Manufacturers are developing safer alternative methods of expanding the foam.

References:

Shaw, S. D., Blum, A., Weber, R., Kannan, K., Rich, D., Lucas, D., … Birnbaum, L. S. (2010). Halogenated flame retardants: do the fire safety benefits justify the risks? Reviews on environmental health, 25(4), 261–305.

American Public Health Association (APHA) (2015). Policy Statement 20156: Reducing Flame Retardants in Building Insulation to Protect Public Health. Available at: http://www.apha.org/policies-‐and-‐advocacy/public-‐health-‐policy-‐statements

Ebert J, Bahadir M. Formation of PBDD/F from flame-‐retarded plastic materials under thermal stress. Environ Int. 2003;29:711–716

European Chemicals Agency (ECHA) (2009). Data on Manufacture, Import, Export, Uses and Releases of HBCDD as well as Information on Potential Alternatives to Its Use. ECHA, IOM Consulting, Helsinki, Finland.

U.S. Environmental Protection Agency (EPA) (2014). Flame-‐retardant alternatives for hexabromocyclododecane (HBCD): final report. Available at: http://www.epa.gov/dfe/pubs/projects/hbcd/hbcd-‐full-‐report-‐508.pdf. Accessed December 20, 2015

Weber R, Kuch B. Relevance of BFRs and thermal conditions on the formation pathways of brominated and brominated-‐chlorinated dibenzodioxins and dibenzofurans. Environ Int. 2003;29:699–710

http://greensciencepolicy.org/topics/flame-‐retardants/

http://e360.yale.edu/feature/pbdes_are_flame_retardants_safe_growing_evidence_says_no/2446/

http://www2.buildinggreen.com/blogs/avoiding-‐global-‐warming-‐impact-‐insulation

http://www.homeenergy.org/show/article/nav/issues/magazine/139/id/1993

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Lifetime Global Warming Potential of Insulations

http://www.greenbuildingadvisor.com/blogs/dept/energy-‐solutions/avoiding-‐global-‐warming-‐impact-‐insulation

5) Pre-‐remodel BESO assessment of home energy efficiency. Submit paperwork from BESO assessment with permit application for remodel.

Rationale: BESO requires building owners to complete an energy performance assessment and publicly report the building performance information via an electronic reporting interface controlled by the Director of Planning and Community Development or their designee. Energy assessment is carried out by registered energy assessors who provides recommendations to improve the energy performance of the building. For BESO energy assessment one of the following is required:

a) Home Energy Score: Home Energy Score is developed by LBNL and rates homes on a scale of 1 to 10, 10 indicating excellent energy performance. Home energy Score includes the score, energy use breakdown, data collected and recommendations to improve energy performance.

b) Energy Upgrade California (EUC) Advanced Assessment: Home Upgrade has a network of qualified energy assessors in the bay Area who can assess homes and identify opportunities for energy performance improvement.

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c) High Performance: If a qualified energy upgrade has been completed or if the building is already very energy efficient, the owner can submit evidence of these upgrades or this efficiency in lieu of the BESO audit.

The BESO assessment informs owners on the building’s energy performance and provides a roadmap for improvement. Assessments are carried out by registered assessors using advanced diagnostic tools. While encouraging them, the system makes it voluntary to incorporate performance improvement measures. Reducing one’s carbon footprint, improving comfort in the house and saving on energy bills are all incentives for building owners to carry out recommended changes. Improved marketability of energy efficient residences is a further incentive to owners to implement recommended energy conserving measures.

6) Post remodel energy, comfort, and air quality monitoring (operational rating) a) For a period of one year following completion of construction, monitoring will be carried

out for the following parameters: hot water use, appliance loads, space heating loads, interior temperature, relative humidity and CO2 levels. Consider requiring entry of projects as case studies into the NZEC-‐NESEA inventory, for which all case studies are QA’d by NREL before publishing.

b) Project must document energy use meets target expectations to be eligible for incentives from the City.

c) Monitoring data will be included in a public database (that protects privacy) and compared to pre-‐construction projected energy use in bi-‐annual reports. Reporting could potentially be less frequent if incorporated into NZEC-‐NESEA inventory.

Rationale: The intention of Berkeley Deep Green Building is to radically improve the comfort, performance and indoor air quality of buildings throughout the City of Berkeley. However, without a means to track these improvements, it may not achieve the outcomes required to reduce our global carbon emissions. Therefore, the program includes a mandatory monitoring for all participants. A list of devices for tracking both energy performance and indoor air quality are included below.

Bi-‐annual reports examining the data will help to direct future improvements to Berkeley Deep Green Building.

Energy Use Monitoring Systems:

Name Website Cost #circuits Cost/circuit

eGauge EG3010 (Residential) http://www.egauge.net/ $544 12 $45.33

eGauge EG300 http://www.egauge.net/ $494.00 12 $41.17

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(commercial)

SiteSage http://powerhousedynamics.com/ tbc 44

PowerSave Envi http://www.currentcost.net/ $129 10 $12.90

Lgate http://locusenergy.com/ tbc 2

EnergyCloud http://bluelineinnovations.com/ $89 1 $89.00

TED 5000 http://www.theenergydetective.com/ $199.00 1 $199.00

TED Pro Home http://www.theenergydetective.com/ $300.00 32 $9.38

Wattvision http://www.wattvision.com/ $99.00 1 $99.00

(Highlighted cells are the ones that look most viable and informative for tracking home energy use)

IAQ Monitoring Systems:

Foobot http://foobot.io/ $199.00

Elgato Eve Room https://www.elgato.com/en/eve/eve-‐room $75.00

Netatmo Home Weather Station https://www.netatmo.com/ $148.00

updated: 3/2/2016

http://www.homepower.com/articles/home-‐efficiency/electricity/tracking-‐your-‐energy-‐use

7. FSC-‐certified wood FSC-‐certified wood and wood products are to be used when available.

Rationale: FSC is an independent member-‐led group that advocates use of wood sourced from sustainably managed forests (see us.fsc.org/en-‐us). FSC-‐certified wood aligns with the Berkeley Deep Green Building requirement for sustainably sourced materials and offers the following benefits:

• FSC standards for forest management discourages harvesting wood from old-‐growth forests, thus preventing loss of natural forest cover.

• The standards extend to protection of water bodies and prevention of use of hazardous chemicals, such as Atrazine, that are otherwise allowed in the US.

• FSC requires forest managers on both private and public lands to involve the local community and protect indigenous people. It requires the local community to be part of the decision-‐making on impacts of operations and certification.

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• FSC audit reports on public and private lands are available to the public.

FSC wood and engineered wood and cabinetry and windows made with FSC wood are available from many local sources. A list of these sources, updated annually, is available from the Ecology Center on San Pablo Ave.

Note: the SFI certification is not a comparable alternative and cannot be used as a substitute certification program.

8. Water Conservation

All new plumbing fixtures to be 100% extra-‐low flow fixtures and appliances.

Fixture Flow rate mandated by California

Energy Commission (gpm)

Maximum flow rate recommended

by Berkeley Deep Green Building

(gpm)

Faucet 1.2 .5

Shower - 1.25

Kitchen Faucet 1.8 that can be increased to 2.2 1.8 (for functional reasons such as pot filling)

Toilets 1.28 1

Permeable paving. Maximize permeable paving. Paving materials such as gravel, pervious concrete or asphalt, spaced paving blocks, loose materials, or tire spurs allow stormwater to percolate and infiltrate into the ground, allowing for groundwater recharge and reduction in runoff and flooding. When choosing a permeable paver, consider Americans with Disabilities Act (ADA) access requirements and the anticipated vehicular load in hardscape areas. Areas with very high traffic or very heavy anticipated loads may not be suitable for pervious paving strategies. Examples of permeable paving are: Pervious concrete or asphalt, an open-‐grid pavement system with at least 50% permeability, permeable materials, such as gravel, decomposed granite, or sand.

Water conserving landscape. Post construction landscape design shall be designed to achieve the following:

1. Areas disrupted during construction are restored to be consistent with native vegetation species and patterns.

2. Limit Turf areas to 10 percent of the total landscaped area.

3. Utilize at least 75 percent native California or drought tolerant plant and tree species appropriate for the climate zone region. Areas devoted to edible landscape exempt because of importance of localizing food supply.

4. Plants to be hydrozoned by water needs.

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Laundry-‐to-‐landscape greywater and greywater-‐ready tub and shower plumbing. Install laundry to landscape greywater system. New showers and tubs to be plumbed to be greywater ready: i.e. greywater piping kept separate from blackwater piping in such a fashion as to provide easy access for diversion into a greywater system at a future date.

Rationale: It is estimated that the average resident in Northern California uses 171 gallons per day for indoor use and 125 gallons per day for outdoor use. It is also estimated that residents of the Bay Area use less than 171 gallons of water for indoor use (California Single Family Water Use Efficiency Study, 2011).

The following chart presents a perspective on the average residential water use in California.

A state of emergency was declared in California in 2014 due to drought conditions. Record low precipitation in 2014 affected drinking water reserves in the state. Precipitation in subsequent years has not been enough to bring California out of the drought situation. This emergency prompted the State to take corrective actions and make the water efficiency standards in buildings and in agricultural practices more stringent. It is imperative that all new and existing buildings honor this commitment by the State. The water efficiency goals of the Berkeley Deep Green Building program will be in line with the State’s commitment and requirements.

Water-‐permeable paving allows infiltration of rainwater into the ground and helps recharge ground water. It prevents excess storm water runoff that overloads the capacity of our wastewater treatment plants (where there are combined sewer and stormwater systems). Additionally it filters pollutants from runoff thus improving the quality of storm water runoff and preserves ground water quality.

Limiting turf area conserves water as turf has high irrigation needs. Native turf varieties are recommended instead because of their lower irrigation needs. Limiting turf area will allow the owner to explore alternate irrigation options such as drip irrigation which work well with other landscaping species

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More efficient irrigation can be achieved by clumping species with similar irrigation needs together in the landscape.

Re-‐use of greywater for landscape irrigation has been estimated to offset from 16 to 40% of municipal potable water use. Laundry-‐to-‐landscape greywater systems are easy to install, economical, and do not require a permit so long as explicit guidelines are followed.

Tub/shower greywater can readily be diverted for re-‐use in the landscape so long as the drainage piping is accessible and there is adequate space in the piping to install a backwater valve and diverter valve. If not anticipated with the installation of “greywater ready plumbing”, it can become cost prohibitive in the future to attempt to capture that greywater for re-‐use. Where a new tub/shower is situated on a slab, the drain piping can be routed to an area (even outside the building footprint) where access can be provided before it joins blackwater drain piping. Similarly, upstairs tub/showers can have drainage piping extend into lower walls or the crawlspace to provide that access, before combining with blackwater piping. Ideally, landscaping would be designed to optimize greywater re-‐use from various sources in the home using the least expensive types of greywater irrigation systems.

References:

Stormwater fact sheet.pdf by Bay Area Stormwater Management Agencies Association

California Code of Regulations Title 23, Division 2, Chapter 2.7. Model Water Efficient Landscape Ordinance. (https://govt.westlaw.com/calregs/Document/I8403E54417874B8B94843C8A8341823B?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1)

DWR offers rebates to replace turf with other native species. (http://www.saveourwaterrebates.com/turf-‐replacement-‐rebates.html)

Berkeley Deep Green Building: Level 2 1. Higher above code energy efficiency ( performance component)

Energy use intensity (EUI) maximum of 14 kBtu/ sq. ft. / yr site energy for both new construction and remodels above a certain threshold. See item 1. above for rationale.

2. Reduced embodied energy (prescriptive measures) a. Reduce concrete use (reduce concrete use for hardscape and other

nonstructural applications). New concrete and kiln-‐fired brick, pavers, etc.

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cannot be used for non-‐structural purposes and should not be used in excessive amounts for structural purposes.

b. Low embodied-‐energy concrete. Specify concrete with global-‐warming potential 30% or more below standard mixes as established by the NRMCA.

“Supply concrete mixtures such that the total Global Warming Potential (GWP) of all concrete on the project is 30% or more below the GWP of a reference building using Benchmark mixes as established by NRMCA and available for download at www.nrmca.org. Submit a summary report of all concrete mixtures, their quantities and their GWP to demonstrate that the total GWP of the building is 30% or more below the GWP of the reference building. Contractor may use the Athena Impact Estimator for Buildings software available at www.athenasmi.org or other similar software with the capability of calculating GWP of different mix designs.”

c. Engineered lumber and wood in lieu of steel/concrete: Where it is possible to substitute, wood, cross-‐laminated timber and other engineered wood products will be used in lieu of concrete and steel structural systems.

d. Petition for consideration of alternative measures for reducing embodied energy. For example, salvaged siding, earth finishes, high recycled content, locally sourced and rapidly renewable materials.

Rationale: As operational energy goes down, the significance of energy embodied in materials increases. Currently over a buildings whole life, embodied energy accounts for roughly 20% of a building’s total GHG footprint. However, in the first 20 years of a building's life, this can be 50% or more. In addition, as we approach zero net operating energy, these numbers increase, eventually reaching 100%.

Low-‐carbon materials provide net GHG emissions reductions now, when GHG emissions reductions are most effective and are needed most because of the delayed impact of GHGs and the self-‐reinforcing loops that GHGs trigger.

Low-‐carbon construction can reduce the embodied energy of a typical building by 30 to 50%, with 20% achieved through simple substitutions.

Rapidly renewable plant materials, wood, earth and stone are the primary low-‐carbon construction materials. Use of rapidly renewable plants and wood products actually sequesters atmospheric carbon and could be assembled to create a carbon negative house. Metal and plastics in general have a very high carbon footprint and should be avoided where possible. Concrete, while lower in embodied energy per pound, is used in such great quantities that its global warming impact tends to dwarf that of other materials used in construction. A detailed analysis of the embodied energy of a building recently designed by Siegel and Strain Architects shows the relative significance of various components:

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Berkeley Deep Green Building focuses on reducing concrete in nonstructural uses because there are many good low-‐carbon alternatives. It encourages use of wood instead of concrete and steel structurally because structural systems contribute most to a building’s overall embodied energy. Where concrete is essential structurally, many methods exist to reduce the embodied energy of concrete significantly without compromising its performance.

Finally, where wood is use mainly for the structure, advanced framing techniques can be employed that can reduce the amount of lumber used by up to 25%. Advanced framing components include:

• Framing walls with studs at 24” on center. • Designing windows and doors on the plywood/sheetrock module • Single top plates instead of double top plates • Single stud at window • No headers over doors and windows in nonbearing walls • No cripple under windows • Hang window and door headers instead of using Jack studs • Use only 2 studs for corners

Additional information about this construction technique is available in Efficient Wood Use in Residential Construction: A Practical Guide to Saving Wood, Money,

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and Forests by Ann Edminster and Sami Yassa, 1998. Natural Resources Defense Council

References:

“Greenhouse Gases and Home Building: Manufacturing, Transportation, and Installation of Building Materials,” by Warren Carnow, National Home Builders Association, September 2008 http://www.nahb.org/en/research/housing-‐economics/special-‐studies/archives/greenhouse-‐gasses-‐and-‐home-‐building-‐2008.aspx

Lessons Learned from Recent LCA Studies, SEAOC 2013 Convention Proceedings, by Frances Yang

SEAOC LCA Study: Comparing Environmental Impacts of Structural Systems, SEAOC 2013 Convention Proceedings, by Anthony Court, Lisa Podesto, Patti Harburg-‐Petrich

http://www.usda.gov/wps/portal/usda/usdamediafb?contentid=2011/09/0426.xml&printable=true&contentidonly=true

Science Supporting the Economic and Environmental Benefits of Using Wood and Wood Products in Green Building Construction, y Michael Ritter, Kenneth Skog, and Richard Bergman, USDA, Forest Products Laboratory, GTR FPL-‐GTR-‐206, page 4 http://www.fpl.fs.fed.us/documnts/fplgtr/fpl_gtr206.pdf

http://www.woodworks.org/why-‐wood/

http://www.rethinkwood.com/

“Clock is Ticking,” by Larry Strain, greensourcemag.com, May/June 2011, http://www.siegelstrain.com/site/pdf/201105_ClockisTicking-‐LStrain.pdf

http://archpaper.com/2016/04/time-‐to-‐experiment-‐anew-‐david-‐benjamin-‐on-‐embodied-‐energy-‐and-‐design/#gallery-‐0-‐slide-‐0

http://apps1.eere.energy.gov/buildings/publications/pdfs/building_america/26449.pdf

http://www.apawood.org/data/sharedfiles/documents/m400.pdf

http://www.usahers.com/pdffiles/VEFraming1-‐17-‐01.pdf

3. Solar photovoltaic (PV) system and/or a solar thermal system sufficient to achieve zero net energy for the building, where sufficient solar access exists

Where sufficient solar access exists, install a solar PV and/or solar thermal system, sized as required to achieve zero net energy for the building, including excess inverter capacity for expansion.

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Photovoltaics: The PV system shall be sized to offset 100% of on-‐site electrical loads, and in addition shall include either 1) inverter capacity for the PV modules needed to supply power for at least 2 EVs which travel 30 miles per day round trip, or 2) adequate space and breaker capacity at the main service panel to add this inverter capacity later. If the system uses micro inverters then no added inverter capacity is required. Prioritize usage of roof areas which have a 90% or greater annual solar access; if those areas prove insufficient, utilize areas with not less than a 70% solar access. System sizing should be done using one of the nationally accepted solar calculator tools, such as PVWatts, PVSyst, Helioscope, and SAM.

Solar thermal: A solar thermal system will typically offset between 50% and 70% of a residence’s annual hot water loads. If the building design indicates a need for solar thermal to achieve zero net energy, then the system must be installed in a way that achieves a minimum 50% solar fraction. Any SRCC OG300 certified system may be used; however, if the system involves hot water storage on the roof then the roof structural design must be proven adequate to carry the additional load. If there is going to be a swimming pool on the property there should also be an adequately sized unglazed or glazed solar pool heating system.

4. Reduced toxicity through avoidance of Living Building

Challenge Red List chemicals Projects cannot use products that contain chemicals on the Living Building Challenge Red list. These chemicals are:

• Asbestos • Cadmium • Chlorinated Polyethylene and Chlorosulfonated Polyethlene • Chlorofluorocarbons (CFCs) • Chloroprene (Neoprene) • Formaldehyde (added) • Halogenated Flame Retardants • Hydrochlorofluorocarbons (HCFCs) • Lead (added) • Mercury • Petrochemical Fertilizers and Pesticides • Phthalates • Polyvinyl Chloride (PVC) • Wood treatments containing Creosote, Arsenic or Pentachlorophenol

The International Living Future Institute, which manages the Living Building Challenge, grants temporary exceptions for many Red List Chemicals owing to current limitations in the materials economy. These same exceptions, as outlined in the Living Building Challenge 3.0 Materials Petal Handbook, shall apply in Berkeley Deep Green Building. However, no exceptions shall be made for halogenated flame retardants (HFRs) in insulation given the availability of alternative materials that do not contain HFRs.

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Rationale: The International Living Future Institute has assembled a list of chemicals it identifies as the “worst in class” materials, chemicals, and elements known to pose serious risks to human health and the greater ecosystem.” Ultimately, they should be phased out of production because of toxicity concerns. A growing body of research is demonstrating the role of chemical pollutants in the development of a broad array of childhood and adult diseases (e.g., neurodevelopmental disabilities, asthma, allergies, psychiatric disorders, immune deficiencies, birth defects, cancers, diabetes, endometriosis, infertility, and Parkinson's disease). The time of greatest vulnerability is during pregnancy, when minute exposures to the fetus during critical developmental windows can set a child up for a lifetime of chronic illness.

Unfortunately, there is very little federal regulation to ensure the safety of the >85,000 synthetic molecules developed since WWII. When Toxics Substances Control Act (TSCA) was passed in 1976, 62,000 chemicals were simply grandfathered in as being permissible to use in commercial products. Of the 20,000 plus new chemicals developed since then, health data has been generated on only 15% of them. Since the passage of TSCA, the EPA has outlawed only 5 chemicals under this law.

Building consumes 40% of raw materials globally (3 billion tons annually) and therefore contributes substantially to the extraction, manufacture and use of materials in our environment. Avoidance of building products containing ILFI Red List Chemicals helps to create safe environments in our homes and redirect manufacturing to a more sustainable future.

References:

www.greensciencepolicyinstitute.org

www.braindrain.dk

http://jama.jamanetwork.com/article.aspx?articleid=185391

http://www.healthandenvironment.org/about/consensus

http://arjournals.annualreviews.org/e...

https://www.youtube.com/watch?v=E6KoMAbz1Bw Little Things Matter by Bruce Lanphear, MD, Prof at Simon Fraser University, Published on Nov 11, 2014

5. Advanced Water Conservation Measures a. Operational tub and shower greywater system. Direct all shower/tub water to

permitted outdoor greywater system.

b. Operational rainwater collection for non-‐potable domestic use. A minimum 1000 gallon rainwater system to be installed for use for toilets and/or laundry.

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Rationale: California enacted the Rainwater Recapture act in 2012 which allows residents to capture and use rainwater collected onsite. There are many benefits to capturing and reusing rainwater onsite:

• Rainwater use offsets the demand on the potable water supply which is under a great strain because of the State’s drought conditions.

• While the individual capacities of rainwater barrels or cisterns are inadequate for agricultural or industrial purposes, they are adequate for residential non-‐potable applications. If every home in the City of Berkeley collected and used rainwater, at the minimum for outdoor irrigation, the water saved in the reservoirs could be diverted to other applications that do not offer much flexibility, such as agricultural and industrial applications. Consequently this relieves the demand on the potable water supply.

• Rainwater is a free and clean source for irrigation. It is low in sodium and chloramine and is fluoride free.

• Additionally, basic filtration and treatment makes rainwater fit for other uses such as toilet flushing and cleaning laundry (subject to permitting requirements).

• Capturing rainwater reduces the speed of flow in storm water systems and into the Bay. This helps in preventing changes in the local ecosystem.

Greywater is lightly used water from tubs, showers, sinks and clothes washers: so long as care is taken in the choice of cleaning products it can be effectively re-‐used for outdoor irrigation. Using municipal water twice lowers the embodied energy/carbon footprint per use, reducing the chemicals and costs involved in treating water initially to potable standards and later in treating it before release back into the environment.

Fortunately there are many systems available ranging in price and suitability for different types of landscapes. The simplest and least expensive sends the greywater directly to the garden as it is produced, via gravity or using the pump already in the washing machine. Mulch basins in the landscape allow the greywater to infiltrate into the soil, and are best suited for irrigating larger trees, shrubs, vines, perennials.

More expensive systems utilize tanks, pumps, filtration and sophisticated controls in order to distribute the greywater in regulated amounts through special drip tubing. Some require that the homeowner clean the filters, others provide automatic back flushing of filters using potable water (with cross connection protection) or air.

There are even specialized greywater systems that can be installed under turf. Other whole house systems gather the greywater, treat it onsite to the NSF 350 standard so that it is no longer technically greywater, and utilize it for toilet flushing.

It is wise to anticipate the desired type of system (and budget) and design/plumb accordingly—some systems require space for necessary equipment to be installed, either indoors or out, and require that all greywater piping lead to one location.

Even if there is no plan to implement a system, installing plumbing to be ‘greywater ready’ is a courtesy to all future owners of the property when greywater re-‐use may be mandatory.

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Currently all systems require a permit except the laundry-‐to-‐landscape system, which must abide by code-‐specified guidelines to be exempt.

References:

The Water Wise Home, by Laura Allen, Storey Press, 2015

Stormwater fact sheet.pdf by Bay Area Stormwater Management Agencies Association

http://www.ci.berkeley.ca.us/Planning_and_Development/Energy_and_Sustainable_Development/Rainwater_Harvesting.aspx

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Appendix B _______________________________________________________________ Berkeley Deep Green Building Program Community Review Comments -‐ June 14, 2016 1. Various energy ordinances such as the Berkeley Climate Action Plan are present in

Berkeley already. How is this program different? The Berkeley Climate Action plan is not specific and does not give a clear direction to building owners. The Berkeley Deep Green Building Program is tied into existing metrics of California codes and existing ordinances in Berkeley such as the Berkeley Climate Action Plan. While some of the measure proposed in the program is similar to LEED, Green Point Rating and Living Building Challenge, the program is tailor-‐made for Berkeley with its limited rainfall and high urban density.

2. How does this compare to CalGreen?

While the measures for Berkeley Deep Green Building is similar to CalGreen, the requirements are more stringent. The community suggested that cross-‐referencing other programs would be helpful

3. Incentives • Measures proposed in this program are eligible for incentives currently

offered by the City, California and PG&E. More specifics were not included because specific Incentives that support water and energy efficiency must be developed by planning officials who know details about what is possible and how it could work.

• Community members emphasized a need to incentivize switching from gas to electric.

• The community would also like to emphasize the reuse of existing buildings and streamline changing the use of existing buildings as needed to preserve them.

• Incentivizing carbon sequestration is seen as an emerging opportunity. • Education and outreach as part of program for this to be successful.

4. Is electric water heating Title 24 compliant?

No, specifically, and Yes because it addresses the intent. Title 24 is developing and we imagine that future versions will include this.

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5. Does the program suggest specific products or comparison to products? The program includes general criteria and some sources for specific products. Because both criteria and products change yearly, the criteria and resources for people who are attempting to implement must be built out and updated regularly.

.

6. How does the project address sustainable transportation as it accounts for considerable GHG emissions in Berkeley? While the program doesn’t address this directly the writers are completely aligned with the Berkeley Transit Corridor plans. It does suggest in Level 2 adding EV charging capacity to homes.

7. How did you arrive at two levels instead of a point system like LEED? The designers concluded after looking at a complex matrix that it could be simplified. And they saw that Level 1 items would likely become mandatory before Level 2 items.

8. Can the City consider reduced embodied carbon emission to meet its Climate Action Plan? The program encourages Berkeley to reduce embodied carbon emissions.

9. EUI gets easier to achieve with a bigger house.

This was a great point. We think final adoption must address it. The community leans towards incentivizing smaller houses.

10. How does the program consider carbon sequestration? Energy efficiency has been addressed extensively. Carbon sequestration is included in the current plan in simple or entry levels ways including using recycled and sustainably harvested materials. Carbon removal is an important consideration and new sequestration strategies are rapidly emerging. They will be incorporated into the plan as they become known.

11. Does the plan include provisions for EV Charging in Residences. Not specifically and can be added to the plan.

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Linda Maio Councilmember District 1

2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.XXXX TDD: 510.981.6903 Fax: 510.981.XXXX E-Mail: [email protected]

SUPPLEMENTAL AGENDA MATERIAL

Meeting Date: July 19, 2016 Item Number: 47 Item Description: Addressing Potential Unintended Consequences by Evaluating Additional Budget Information Submitted by: Council Members Maio, Capitelli, Moore, and Worthington On June 28, 2016, the City Council adopted policies and referrals for the FY 2017 budget, including $150,000 for HUB Housing Assistance/Retention. The purpose of this recommendation is to clarify that the intent of these funds is to respond to our homeless crisis by providing rental assistance to qualifying persons by establishing a program and criteria with our service providers.

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COUNCILMEMBER LINDA MAIO CONSENT CALENDAR

Vice Mayor of the City of Berkeley July 19, 2016

[email protected] · 510.981.7110 · cityofberkeley.info/lindamaio

TO: Honorable Mayor and Members of the City Council FROM: Council Members Linda Maio, Laurie Capitelli, Darryl Moore, and Kriss

Worthington SUBJECT: Amendment to Item 52a of the June 28, 2016, City Council Meeting

Clarification: Funding for Emergency Housing Assistance

RECOMMENDATION Establish that the intention for the recently adopted $150,000 (HUB Housing Assistance/Retention) funds is to provide emergency housing assistance, including rental assistance for rapid rehousing of persons who are currently homeless, and refer to the City Manager to develop a program, in concert with our service providers, for such a program. BACKGROUND On June 28, 2016, the City Council adopted policies and referrals for the FY 2017 budget1, including $150,000 for HUB Housing Assistance/Retention. The purpose of this recommendation is to clarify that the intent of these funds is to respond to our homeless crisis by providing rental assistance to qualifying persons by establishing a program and criteria with our service providers.

ENVIRONMENTAL SUSTAINABILITY No environmental sustainability impact.

FINANCIAL IMPLICATIONS No additional budget implications. CONTACT Office of Councilmember Linda Maio, Vice Mayor of the City of Berkeley, District 1 510.981.7110 | [email protected] | cityofberkeley.info/lindamaio Office of Councilmember Darryl Moore, District 2 510.981.7120 | [email protected] | cityofberkeley.info/council2 Office of Councilmember Laurie Capitelli, District 5 510.981.7150 | [email protected] | cityofberkeley.info/council5 Office of Councilmember Kriss Worthington, District 7 510.981.7170 | [email protected] | cityofberkeley.info/council7

1 Annotated agenda of the June 28, 2016, City Council meeting (item 52a / page 19):

http://www.cityofberkeley.info/Clerk/City_Council/2016/06_June/Documents/06-28_Annotated.aspx [PDF]

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http://www.cityofberkeley.info/Clerk/City_Council/2016/06_June/Documents/06-28_Annotated.aspx





Subject: Addressing Potential Unintended Consequences by Evaluating Additional Budget Information

RECOMMENDATION: That the Council consider additional information about the potential unintended consequences from the budget decision.

BACKGROUND: During the adoption of the budget, there may have been unintended consequences for nonprofit organizations. A specific unintended consequence may have been that the new budget limited the funding for YEAH! As a result, the homeless shelter has been closed, and it could stay closed for two months or more. It was never pointed out during the council meeting that this could occur.

As the adoption process was being conducted, there were some complications and confusion about how much money would be allocated to nonprofits. The confusion stemmed from multiple factors. The Councilmembers were not given any written documents about the contents of what was within the budget motion. Additionally, the city management and staff did not have a copy of the budget motion. The public also did not have a copy of the budget motion. While discussing the new budget motion, precisely 21 organizations’ names and dollar amounts were read out loud. It was challenging for Councilmembers to write down all the proposed organizations and amounts, which made it difficult to compare the new proposal to the submitted proposals.

The adoption of the new budget was done in a very different manner this year. In previous years multiple motions were allowed in order to address specific proposals. This year, Councilmembers were not able to make additional motions.

In order to make a more informed decision, we have compiled a list of the reductions in funding to allow the public and Council to understand what happened.

See the chart below for funding to be considered:

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Berkeley Drop-In Center (AC NMHC) $ 5,722.00BUSD Homeless Student Program (YSA) $50,000.00BANANAS’ QRIS Services $20,000.00BOSS--MASC Daytime Drop-in $25,000.00Comm. All. For Learning--Writers Coach Connections

$10,000.00

Stiles Hall $10,000.00Women’s Daytime Drop-In Center--Drop-In Services

$25,000.00

YEAH! 's Year-Round Shelter Program $33,000.00 Total $178,722.00

The new budget appears to eliminate the BUSD homeless youth funding. During the council meeting there was possibly confusion about the difference between YSA and the BUSD Homeless Student Program, which could have led to the elimination of funding.

Besides the reductions in funding, the June 28, 2016 budget vote did not include several additional funding items. One of the items is the $84,500 for eviction defense services. One Councilmember indicated that the amount for the eviction defense fund was included in the HUB funding, but in fact the two items are separate.

Eviction Defense Funding Expansion $84,500.00

Tiny Homes Pilot Project $25,000.00

Total $109,500.00

FINANCIAL IMPLICATIONS:Restoring the funding could cost up to $178,722, and the additional funding proposals could cost up to $109,500.

ENVIROMENTAL SUSTAINABILITYConsistent with Berkeley’s Environmental Sustainability Goals and no negative impact.

CONTACT PERSON:Councilmember Kriss Worthington 510-981-7170

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Lori Droste Councilmember District 8

2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7181 TDD: 510.981.6903 E-Mail: [email protected]

SUPPLEMENTAL AGENDA MATERIAL

Meeting Date: July 19, 2016 Item Number: J Item Description: Urging the California State Legislature to Amend or Oppose the “By Right Housing Approvals” Budget Trailer Bill Submitted by: Councilmember Droste Submitting a resolution urging the California state legislature to amend and adopt the “by-right housing approvals” proposed trailer bill in recognition of California’s severe statewide affordable housing shortage.

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RESOLUTION NO. XX.XXX

URGING THE CALIFORNIA STATE LEGISLATURE TO AMEND AND ADOPT THE “BY-RIGHT HOUSING APPROVALS” PROPOSED TRAILER BILL IN RECOGNITION OF CALIFORNIA’S SEVERE STATEWIDE AFFORDABLE HOUSING SHORTAGE.

WHEREAS California, the Bay Area, and Berkeley suffering from an unprecedented housing shortage and affordability crisis; and

WHEREAS Housing affordability and availability are key to maintaining Berkeley’s livability, vitality, and cultural and economic diversity; and WHEREAS Berkeley is a highly desirable place to live and should welcome people of all cultural and socioeconomic backgrounds; and

WHEREAS Municipalities across California have been unable to keep up with the need for housing at all affordability levels; and

WHEREAS Burdensome processes have contributed to local, regional, and statewide inability

to meet these housing needs. WHEREAS Between 1980 and 2010 the Bay Area failed to build an estimated 1.3 million

units of housing that would have helped to keep prices from rising faster than the national average; and

WHEREAS More than 80 percent of people who work in Berkeley don’t (or can’t) live in

Berkeley; and WHEREAS Cities across California, including Berkeley, have failed to build sufficient

housing to meet the need generated by rising employment; and

WHEREAS Many California cities are failing to produce affordable housing and Berkeley would also benefit from increased production of affordable housing.

WHEREAS Berkeley constructed only 51 percent of its total Regional Housing Needs

Allocation for the period of 2007-2014 WHEREAS Approval of new housing projects in Berkeley frequently takes multiple years. WHEREAS Berkeley continues to hold new development to high environmental, affordability

and labor standards WHEREAS Berkeley strives to prevent the net loss of affordable and rent-stabilized housing

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WHEREAS Governor Jerry Brown introduced a Budget Trailer Bill proposal for “By-Right Housing Approvals” and a revised version was subsequently proposed on June 10, 2016.

WHEREAS The most recent version of the “By-Right Housing Approvals” proposal

(hereafter, “the Proposal”) would guarantee expeditious approval for projects that provide specified amounts of affordable housing.

WHEREAS The Proposal would disqualify from by-right approvals projects outside of

urbanized areas or proposed on Prime farmland, and would require projects on non-Prime farmland to undertake key mitigation measures.

WHEREAS The Proposal would disqualify from by-right approvals projects on sites that currently or recently included affordable housing units, rent-stabilized housing units, or housing units hosting low-income households, unless the units would be replaced at “a level of affordability equal to or greater than the level of a previous affordability restriction.”

WHEREAS The Proposal does not include a definition or procedure for ascertaining whether the affordability level of a replacement unit is “equal to or greater than the level of a previous affordability restriction.”

WHEREAS The Proposal would affirm that municipalities are empowered to establish additional “objective land-use standards… including but not limited to housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances.”

WHEREAS The Proposal would not override or undermine the higher inclusionary requirements for affordable housing adopted by Berkeley or other cities. RESOLVED That the Berkeley City Council supports statewide efforts to encourage adequate provision of housing at all affordability levels; and be it further

RESOLVED That the Berkeley City Council supports balancing regional and state-level housing and sustainability goals with local interests and values; and be it further RESOLVED That the Berkeley City Council hereby urges the California State Legislature to offer the following amendments to the By-Right Housing Approvals Trailer Bill to protect rent-controlled tenants:

A. Clarify that “…a level of affordability equal to or greater than the level of a

previous affordability restriction” means that any by-right project which demolishes rent-controlled units must replace those units one-for-one with new

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rent-controlled units, under a 99-year deed restriction that is entered into voluntarily as a condition of accessing the optional by-right approval process.

B. Require that replacement rent control and affordable housing units offer

comparable or greater living space, quality of material and construction, and in-unit amenities.

C. Require that any displaced low-income households, or occupants of rent-

controlled or affordable units, be provided relocation assistance, and right of first refusal for occupancy of the replacement rent-controlled or affordable units at a rent equivalent to what the rent would have been had they not been displaced, or at the rent at time of last occupancy if the unit was not subject to rent control or affordability restrictions; and be it further RESOLVED That the Berkeley City Council hereby urges the California State Legislature to offer the following amendments to maintain flexibility for municipalities to adopt reasonable and objective local development standards for new housing construction protect local authority over new housing construction:

A. Provide an exception to by-right approvals in jurisdictions which have achieved

all (100%) of their Regional Housing Needs Allocation (RHNA) for the last five (5) years, in each income category.

B. Clarify that quantifiable project labor standards, such as a percentage of union

labor or paying prevailing wages, are objective zoning standards, to the extent that such are consistent with State law; and be it further

RESOLVED The Berkeley City Council urges the California State Legislature to adopt the “by-right housing approvals” proposed trailer bill, including the recommended amendments described above.

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Supplemental Communication #16

CONSENT CALENDAR July 12, 2016

To: Honorable Mayor and Members of the City Council From: Councilmember Kriss Worthington Subject: Support the Sierra Club letter on the “By Right Housing Approvals” Budget

Trailer Bill RECOMMENDATION: That the City Council support the positions stated in the Sierra Club amendment to Council Item 16 BACKGROUND: Attached is the Sierra Club communication to State Legislatures. We are proposing that Berkeley endorse the stated positions of the Sierra Club on this issue. FINANCIAL IMPLICATIONS: Minimal. ENVIROMENTAL SUSTAINABILITY Consistent with Berkeley’s Environmental Sustainability Goals and no negative impact. CONTACT PERSON: Councilmember Kriss Worthington 510-981-7170 Attachment 1. RE: Trailer Bill 707 “By-Right” Housing Proposal-- OPPOSE

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June 1, 2016

909 12th Street, Suite 202, Sacramento, CA 95814 (916) 557-1100 • Fax (916) 557-9669 • www.sierraclubcalifornia.org

The Honorable Mark Leno and Phil Ting Chairs, Senate and Assembly Committees on Budget Capitol Building Sacramento, CA 95814

RE: Trailer Bill 707 “By-Right” Housing Proposal-- OPPOSE

Dear Chairs Leno and Ting:

We write to register our respectful opposition to the “by-right” housing proposal. It would allow housing projects to circumvent the requirements of important environmental protections, including the California Environmental Quality Act (CEQA) and the Coastal Act. The “by-right” proposal will not solve California’s housing problems, and will in fact likely make it worse. This proposal incentivizes gentrification, and will increase pollution and environmental degradation, which furthers environmental injustice. This proposal is a broad and expansive change in policy that will harm the environment, without providing a real solution to the challenges facing housing affordability.

Housing projects can and often do create environmental impacts, including serious air and water pollution, such as during construction and demolition. CEQA requires mitigation when a project might aggravate existing pollution issues. For larger projects, CEQA requires that an analysis of water availability be conducted. Additionally, CEQA provides existing residents of a community a chance to review information about impacts of new development and the mitigation of those impacts. It is critical to maintain California’s environmental health and public health, while keeping governmental decisions open to those who may be affected by them.

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Failure to mitigate environmental impacts through CEQA moves the burden of mitigation onto the public at large. For example, failure to mitigate urban stormwater runoff impacts may cause problems for the local water agency, requiring a rate increase on everyone to meet Clean Water Act compliance. Any unmitigated impacts from these projects may make it harder for other projects to be approved, as their impacts are more likely to be cumulatively considerable under CEQA’s cumulative impacts analysis.

Additionally, cutting out CEQA for housing projects removes existing residents’ rights to illuminate project impacts. Many of the provisions of CEQA can be used to prevent environmental injustices. CEQA also requires tribal consultation to respect tribal sovereignty when applicable. This proposal ditches these protections.

Removing the protections CEQA provides from so many projects is wholly unnecessary since many affordable housing projects are already exempt from CEQA. These include projects close to transit, with sufficient affordable housing components, where the threats of environmental degradation are minimal. A survey of the Public Resources Code and Title 14 of the California Code of Regulations finds 14 individual exemptions which housing projects might be able to use. Further exemptions are unnecessary.

Provisions of the bill limiting “by-right” to areas where there was an existing general plan or previous environmental review are insufficient to provide the same protections as CEQA. Many general plans are outdated and in need of updating. Relying on old environmental documents provides little protection if conditions have changed or new impacts been identified since. Additionally, these plans may not prove binding on any project since the proposal also grants ministerial approval to projects outside their scope. The language requiring sites where environmental review has occurred is vague and would seem to skirt existing CEQA rules regarding the timeliness of review.

While the bill claims to support infill, its scope is actually much broader, and will facilitate sprawl. For example, the proposal applies to any project immediately adjacent to any residential, commercial, public institutional, transit or transportation passenger facility, or retail use. There is little restriction to what areas qualify, including construction in open space, riparian areas, and the Coastal Zone.

The lack of Coastal Protection in this proposal is simply unacceptable. The proposal will have the unintended consequence of eliminating Coastal Commission review and/or Coastal Act compliance through the Local Coastal Plans in certified local jurisdictions for an entire class of projects. This would very likely result in impacts to wetlands, and agricultural lands (Coastal standards are higher than those in the bill), sensitive habitats, public access, scenic view sheds and other priority coastal resources and land uses.

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As written, the proposal may exacerbate the loss of existing affordable housing in rapidly gentrifying communities. It is easy to use the provisions of this proposal to replace existing rent- controlled buildings for luxury units, in exchange for providing a mere one or two affordable units. We strongly urge rejection of this proposal.

Sincerely,

Kyle Jones Policy Advocate Sierra Club California Jena Price Legislative Affairs Manager California League of Conservation Voters Andria Ventura Toxics Program Manager Clean Water Action Bill Magavern Policy Director Coalition for Clean Air Jennifer Savage California Policy Manager Surfrider Foundation CC: Governor Jerry Brown, Senate President Pro Tem Kevin de Leon, Speaker Anthony Rendon, Committees on Budget Members and Staff

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Subject: Urging the California State Legislature to amend or oppose the “By Right Housing Approvals” Budget Trailer Bill

RECOMMENDATION:Adopt a Resolution urging the California State Legislature to amend or oppose the “By-Right Housing Approvals” Budget Trailer Bill in recognition of Berkeley’s local planning tools and significant contributions to regional housing development. Copies of the Resolution are to be sent to Governor Jerry Brown, State Senate President Pro Tem Kevin De Leon, Senator Loni Hancock, Assembly Speaker Anthony Rendon and Assemblymember Tony Thurmond.

BACKGROUND:On May 16, 2016 as part of the May Budget Revision, Governor Jerry Brown introduced a Budget Trailer Bill proposal for “By-Right Housing Approvals” which pre-empts local land use authority and would approve ministerially multi-unit housing developments if they include a minimum number of affordable units: of 10% affordable units for households at 80% AMI or 5% affordable units for households at 50% AMI. These affordability requirements are significantly below Berkeley’s current inclusionary policy.

The stated purpose for the By-Right Housing Approvals Trailer Bill is to broaden eligibility for by-right, ministerial land use entitlements if they include affordable units for a duration of 30 years for ownership projects and 55 years for rental projects. By making housing developments by-right it will increase the supply of housing, which is supposed to have a downward effect on rents. This bill is specifically focused oncommunities that have been underperforming with respect to their regional housing goals and have not approved new affordable housing.

If approved, the bill would prohibit the requirement of any conditional use permit or discretionary local government review if qualifying developments include an affordable housing component.

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Not only does the Trailer Bill remove any local government discretion for developments of two or more units throughout the City of Berkeley, but it also does not require by-right projects to meet additional affordable housing requirements or construction labor standards such as payment of state prevailing wages, local hire and job training requirements. Unless amended, this bill will have a significant negative effect on our neighborhoods and our diversity.

While the Trailer Bill was tied to the state Budget, after strong objections from labor, environmental and local governments including the League of California Cities, the California Legislature adopted a State Budget that did not include the By-Right Housing Approvals Trailer Bill. The bill will be taken up by the Legislature in August.

The Governor has proposed in exchange for approval of the By-Right Trailer Bill to provide $400 million in state funding for affordable housing.

On June 10, 2016, the Governor’s Office released revised Trailer Bill language which make a number of changes. A few of the changes are in direct response to concerns raised by affordable housing advocates and local governments (see the attached Fact Sheet from the League of California Cities on the new bill language).

Specifically, the revised Trailer Bill would:

Not permit a by-right development unless the project replaces units at a level of affordability equal to or greater than the level of a previous affordability restriction, and by-right projects may not be on any property that is (A) a parcel on which rental dwelling units are, or have been within past 5 years, subject to a recorded covenant that restricts rents to levels affordable to persons and families of lower or very low income; (B) subject to any other form of rent or price control; or (C) occupied by lower or very low income households.

The amendments would prohibit by-right projects on rent-controlled properties and would not pre-empt our local Demolition Ordinance.

Clarifies that an inclusionary housing ordinance is an “objective planning standard” that projects must comply with but that a housing development’s affordable units must be credited against the affordable units required by an inclusionary ordinance.

However, it is still not clear whether the new by-right law would pre-empt cities from applying higher affordability requirements than those imposed by the state. In addition, the Trailer Bill does not require by-right projects to meet any construction labor standards and would prohibit the ability of local governments to impose their own labor, environmental or social equity benefits for by-right projects.

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FINANCIAL IMPLICATIONS:None

CONTACT PERSON:Jesse Arreguín, City Councilmember, District 4 (510) 981-7140

Attachments:1: Resolution2: “Streamlining Affordable Housing Approvals” Trailer Bill 6-10-16 Version 3: League of California Cities By-Right Housing Approvals Trailer Bill Factsheet

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RESOLUTION NO.

URGING THE CALIFORNIA STATE LEGISLATURE TO AMEND OR OPPOSE THE “BY-RIGHT HOUSING APPROVALS” PROPOSED TRAILER BILL IN RECOGNITION OF BERKELEY’S LOCAL PLANNING TOOLS AND SIGNIFICANT CONTRIBUTIONS TO REGIONAL HOUSING DEVELOPMENT

WHEREAS, the California Department of Finance (DOF) estimates the Bay Area added 38,300 housing units between April 2010 and January 2014; and

WHEREAS, the same DOF calculation counts Alameda County as one of the three counties in the region producing the most units since 2010; and

WHEREAS, the last Regional Housing Needs Assessment (RHNA) documented Berkeley’s contributions to the regional housing supply, including the creation of 185 permanently affordable low and moderate income housing units and 1,005 above moderate-income units. The low number of affordable units was most likely due to the Great Recession, the Palmer decision which invalidated inclusionary zoning and the dissolution of redevelopment agencies; and

WHEREAS, Berkeley constructed 51% of its total Regional Housing Needs Allocation for the period of 2007-2014; and

WHEREAS, according to figures from the Berkeley Planning and Development Department from January 2012 to February 2016 there were 1,595 units approved or under construction, with 163 having received their Certificate of Occupancy. There are also 1,029 units pending in the permitting process; and

WHEREAS, including those units pending and currently under construction, the city is adding 2,787 units, which is 94.2% of the city’s fair share requirement for the RHNA period of 2015-2023; and

WHEREAS, Berkeley has developed a diverse toolkit of local planning requirements and housing development incentives, including an Inclusionary Housing policy requiring 20% low-income units, an Affordable Housing Mitigation Fee, a housing linkage fee for large commercial projects, a Demolition Ordinance which permits demolition of housing if the same or a greater number of units are constructed and if the project mitigates the loss of rent control housing, and a Housing Trust Fund which provides funding for the construction of non-profit affordable housing. In addition, the City is exploring the adoption of a City Density Bonus to incentivize payment of affordable housing fees and construction labor standards; and

WHEREAS, On May 16, 2016, Governor Jerry Brown introduced a Budget Trailer Bill proposal for “By-Right Housing Approvals” which pre-empts local land use policies and housing development requirements to allow multi-unit development approvals as-of-right

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if a proposed development includes 10% for low income households or 5% for very low income households; and

WHEREAS, the affordable housing requirements in the Trailer Bill are significantly below Berkeley’s existing inclusionary option to the Affordable Housing Mitigation Fee which is 10% of total market rate units in the project to be set aside at 50% AMI. This inclusionary option will soon be increased to 20% total market rate units set aside for low and very-low income households; and

WHEREAS, a state pre-emption to establish statewide minimum affordable housing standards should recognize and respect established local Inclusionary Housing requirements that meet or exceed the state standard, and moreover the value of any as-of-right development pre-emption over local land use discretion should be recaptured by an increased “premium” above that local Inclusionary Housing standard; and

WHEREAS, the presumed objective of a “approvals streamlining” bill is that development projects are constructed as quickly as possible once approved in order to provide housing units “on the ground”; and

WHEREAS, any policy to incentivize development should allow higher affordability requirements and labor standards to ensure payment of prevailing wages and local hire and job training requirements; and

WHEREAS, The By-Right Housing Approvals trailer bill is intended to incentivize housing development in local jurisdictions that are underperforming with respect to regional housing goals and is not uniformly applicable throughout the 482 cities and 58 counties of the State of California; and

WHEREAS, By-Right development pre-emptions would restrict the future potential to use development incentives to further increase affordable housing beyond current requirements, and would likely undermine Berkeley’s ability to provide a fair share of housing to people at all income levels; and

WHEREAS, the ability for local cities to establish Inclusionary Housing requirements in private developments has continued to be pre-empted by the Palmer/Sixth Street Properties LP v. City of Los Angeles decision, and repeated attempts to re-establish local authority to impose inclusionary zoning have been vetoed by the Governor; and

WHEREAS, Displacement of residents from Berkeley through real estate speculation is a continuing crisis; and

WHEREAS, efforts to secure a state permanent source for affordable housing production since the 2011 dissolution of Redevelopment agencies continue to be stifled, with repeated attempts to establish a modest document recording fee on real estate transactions as a source for affordable housing being prevented in the Legislature; and

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WHEREAS, the Governor’s trailer bill is scheduled to be heard in both the Senate and Assembly in June as part of the State Budget process.

NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley hereby urges the California State Legislature to offer the following amendments to the By-Right Housing Approvals Trailer Bill:

A. Clarify that the Trailer Bill does not take away the right of cities to adopt higher inclusionary standards, and those requirements would still be applicable to by-right projects.

B. An amendment which states that the By-Right Approvals pre-emption shall not apply to jurisdictions whose “performance” of housing production for very low, low and moderate-income residents constitutes at least 25% of its total housing production, as documented in the most recent Regional Housing Needs Assessment (RHNA) cycle and as documented in a current annual Housing Element Progress Report;

C. The value of any as-of-right development pre-emption over local land use discretion should be recaptured by an increased “premium” above that local Inclusionary Housing standard, as determined by a technical analysis.

D. Require projects to pay state prevailing wages, local hire and job training requirements.

E. In addition require approved development projects begin construction within 180 days; and

BE IT FURTHER RESOLVED, that without these amendments the Berkeley City Council urges the California State Legislature to oppose the Trailer Bill, as it would restrict critical local discretion over multi-unit housing development, without providing additional affordable housing or labor standards; and

BE IT FURTHER RESOLVED, that the Council of the City of Berkeley also urges the California State Legislature and the Governor to approve legislation overturning the Palmer decision to allow local governments authority to set inclusionary housing requirements for rental housing projects, and to also recommit to adopting a state permanent source of financing for affordable housing; and

BE IT FURTHER AND FINALLY RESOLVED, that copies of the Resolution be sent to Governor Jerry Brown, State Senate President Pro Tem Kevin De Leon, Senator Loni Hancock, Assembly Speaker Anthony Rendon and Assemblymember Tony Thurmond.

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Streamlining Affordable Housing Approvals

Trailer Bill Technical Modifications (6-10-16)

SECTION 1. Section 65400.1 is added to the Government Code, to read:

65400.1. (a) A development applicant or development proponent pursuant to

Section 65913.3 of the Government Code may submit information describing the

development, including, but not limited to, land use and zoning designations and

requested permit(s) for the development to the Department of Housing and

Community Development in a reporting format to be made available. The information

submitted shall be compiled along with information pursuant to subparagraph (B) of

subsection (2) of subdivision (a) of Section 65400 and Section 65588 of the

Government Code as follows:

(1) Upon receipt of a local government determination regarding the

development submittal.

(2) Issuance of a building permit for the development.

(b) The Department of Housing and Community Development shall annually

review and report on its website the information that has been submitted pursuant

to this section.

SEC. 2. Section 65913 of the Government Code is amended to read:

65913. (a) The Legislature finds and declares that there exists a severe

shortage of affordable housing, especially for persons and families of low and

moderate income, and that there is an immediate need to encourage the development

of new housing, not only through the provision of financial assistance, but also through

changes in law designed to do all of the following:

(1) Expedite the local and State-supported residential development process.

(2) Assure that local governments zone sufficient land at densities high

enough for production of affordable housing.

(3) Assure that local governments make a diligent effort through the

administration of land use and development controls and the provision of regulatory

concessions and incentives to significantly reduce housing development costs and

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thereby facilitate the development of affordable housing, including housing for

elderly persons and families, as defined by Section 50067 of the Health and Safety

Code.

These changes in the law are consistent with the responsibility of local

government to adopt the program required by subdivision (c) of Section

65583.

(b) The Legislature further finds and declares that the costs of new housing

developments have been increased, in part, by the existing permit processes and by

existing land use regulations, and that vitally needed housing developments have

been halted or rendered infeasible despite the benefits to the public health, safety,

and welfare of those developments and despite the absence of adverse

environmental impacts. It is therefore necessary to enact this chapter and to amend

existing statutes which govern housing development so as to provide greater

encouragement for local and state governments to approve needed and sound

housing developments., and so as to assure that economic contributions by taxpayers

and the private sector to support housing are cost-effectively and efficiently deployed

to promptly create new housing in locations and at densities that have already been

approved by local governments in general plans and zoning codes.

(c) It is the intent of the Legislature that the provisions of Section 65913.3 of

the Government Code advance all of the following:

(1) Provisions of Government Code Section 65008.

(2) Implementation of State planning priorities pursuant to Government Code

Section 65041.1.

(3) Attainment of Section 65580 of the Government Code.

(4) Significant actions designed to affirmatively increase fair housing choice,

furthering the objectives of the Federal Fair Housing Act, 42 U.S.C. 3601, and

implementing regulations.

(5) Objectives of the California Global Warming Solutions Act of 2006,

commencing with Section 38500 of the Health and Safety Code.

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(6) Compliance with non-discretionary inclusionary zoning ordinances

adopted by localities.

(7) By right approval for developments that are consistent with objective land-

use standards as defined in Section 65913.3(a)(9) and adopted by a locality,

including but not limited to housing overlay zones, specific plans, inclusionary zoning

ordinances, and density bonus ordinances.

(8) Attainment of sufficient housing to accommodate all local government

shares of regional housing need referenced in Section 65584 and improve reporting

progress pursuant to Section 65400 for the legislature to amend Section 65913.3 or

take additional measures to further attain the State’s planning priorities.

SEC. 3. Section 65913.3 is added to the Government Code, to read:

65913.3. (a) For the purposes of this section, the following terms shall have

the following meanings:

(1) “Approved remediation measures” shall mean measures included in a

certified environmental impact report to mitigate the impact of residential development in

the subject location; or uniformly applied development policies or standards that have

been adopted by the local government to mitigate the impact of residential development

in that location.

(2) “Affordable housing cost” or “Affordable rent” shall be as defined by Health

and Safety Code subdivision (b) of Section 50052.5 or subdivision (b) of Section 50053,

respectively.

(3) “Attached housing development” or “development” means a newly-

constructed structure containing two or more new dwelling units that is a housing

development project, as defined by subdivision (2) of subsection (h) of Section

65589.5 of the Government Code, but does not include a second unit, as defined by

subdivision (4) of subsection (i) of Section 65852.2 of the Government Code, or unit

from conversion of an existing structure to condominiums.

(4) “Department” means the Department of Housing and Community

Development.

(5) “Financial assistance” means any award of public financial assistance that is

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conditioned upon the satisfaction of specified award conditions; this term shall include

but not be limited to: the award of tax credits through and by the California Tax Credit

Allocation Committee, and the award of grants or loans by any state agency or any

public agency.

(6) “Land-use authority” means any entity with state-authorized power to

regulate land-use permits and entitlements conferred by local governments.

(7) “Land-use restriction” means covenants restricting the use of land,

recorded regulatory agreements, or any other form of an equitable servitude.

(8) “Major transit stop” means a site containing an existing rail transit station, a

ferry terminal served by either a bus or rail transit service, or the intersection of two or

more major bus routes with a service interval frequency of 15 minutes or less during

the morning and afternoon peak weekday commute periods, and offering weekend

service.

(9) “Objective zoning standards” and “objective design review standards”

mean standards that involve no personal or subjective judgment by the public

official; the standards must be uniformly verifiable by reference to an external and

uniform benchmark or criterion available and knowable by both the development

applicant or proponent and public official prior to submittal. Such standards may be

embodied in alternate objective land-use standards adopted by a locality, and may

include but are not limited to housing overlay zones , specific plans, inclusionary

zoning ordinances, and density bonus ordinances.

(10) “Public agency” means a federal, state, or local government agency, or a

local or regional housing trust fund which has been funded or chartered by a federal,

state, or local government agency.

(11) “Required by law to record” means, but is not limited to, a development

applicant or proponent is required to record a land-use restriction based on any of

the following:

(A) As a condition of award of funds or financing from a public agency.

(B) As a condition of the award of tax credits.

(C) As may be required by a contract entered into with a public agency.

(12) “Transit priority area” means an area within one-half mile of a major transit

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stop that is existing or planned, provided the planned stop is scheduled to be

completed within the planning horizon included in a Transportation Improvement

Program adopted pursuant to Section 450.216 or 450.322 of Title 23 of the Code of

Federal Regulations.

(13) “Urban uses” means any residential, commercial, public institutional, transit

or transportation passenger facility, or retail use, or any combination of those uses.

(b) A development that satisfies all of the following criteria shall be a permitted

use by right as that term is defined in subdivision (i) of Section 65583.2 of the

Government Code:

(1) The development applicant or proponent has submitted to the local

government its intent to utilize this authority, and has certified under penalty of perjury

that, to the best of the person’s knowledge and belief, the development conforms with

all other provisions identified herein.

(2) The development is consistent with the following objective planning

standards: land use and building intensity designation applicable to the site under

the general plan and zoning code, land use and density or other objective zoning

standards, and any setback or objective design review standards, all as in effect

at the time that the subject development is submitted to the local government

pursuant to this section.

(3) The development is located either on a site that is immediately adjacent to

parcels that are developed with urban uses or on a site in which at least 75 percent of

the perimeter of the site adjoins parcels that are developed with urban uses or

bounded by a natural body of water. For the purposes of this section, parcels that are

only separated by a street or highway shall be considered to be adjoined.

(4) The development must be an attached housing development, for which

the development applicant or proponent already has recorded, or is required by law

to record, a land-use restriction, which shall require all the following:

(A) A duration of at least 30 years for owner-occupied developments or 55 years

for rental developments.

(B) That any public agency and any member or members of the public, including

non-profit corporations, may bring and maintain an enforcement action to assure

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compliance with this land use restriction. This sub-paragraph (B) shall also be deemed

satisfied where a public agency that provides financial assistance to a development has

the exclusive right to enforce the subject land use restriction.

(C) For developments within a transit priority area, a restriction on the real

property of the development to a level of affordability equal to or greater than either of

the following:

(i) At least ten percent of the total units of a housing development for lower

income households, as defined in Section 50079.5 of the Health and Safety Code.

(ii) At least five percent of the total units of a housing development for very low

income households, as defined in Section 50105 of the Health and Safety Code.

(D) For developments not within a transit priority area, a restriction on the real

property of the development to a level of affordability equal to or greater than at least

twenty (20) percent or more of the residential units restricted to and occupied by

individuals whose income is eighty (80) percent or less of gross county area median

income.

(5) Unless the development incorporates approved remediation measures in the

following locations as applicable to the development, the development is not located on

a site that is any of the following:

(A) “Farmland of statewide importance,” as defined pursuant to United States

Department of Agriculture land inventory and monitoring criteria, as modified for

California, and designated on the maps prepared by the Farmland Mapping and

Monitoring Program of the Department of Conservation.

(B) Wetlands, as defined in Section 328.3 of Title 33 of the Code of Federal

Regulations.

(C) Within a very high fire hazard severity zone, as determined by the

Department of Forestry and Fire Protection pursuant to Section 51178 of the

Government Code, or within a high or very high fire hazard severity zone as

indicated on maps adopted by the Department of Forestry and Fire Protection

pursuant to Section 4202 of the Public Resources Code; however, this limitation

shall not apply to any of the following:

(i) Sites excluded from the specified hazard zones by a local agency

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pursuant to subdivision (b) of Section 51179 of the Government Code.

(ii) Sites that have adopted sufficient fire hazard mitigation measures as may

be determined by their local agency with land-use authority.

(iii) Sites that are within a five (5) mile driving distance of the nearest fire

station.

(D) Hazardous waste site that is listed pursuant to Section 65962.5 of the

Government Code, or a hazardous waste site designated by the Department of

Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code,

unless the Department of Toxic Substances Control has cleared the site for

residential use or residential mixed-uses.

(E) Within a delineated earthquake fault zone as determined by the State

Geologist in the official maps published thereby as referenced in section 2622 of the

Public Resources Code, unless the development complies with applicable fault

avoidance setback distances as required by the Alquist Priolo Act and complies with

applicable State-mandated and objective local seismic safety building standards.

(F) Within a flood plain as determined by maps promulgated by the Federal

Emergency Management Agency, unless the development has been issued a flood

plain development permit pursuant to Sections 59 and 60 of Title 44 of the Code of


(G) Within a flood way as determined by maps promulgated by the Federal

Emergency Management Agency, unless the development receives a no rise

certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of


(H) Within an area determined by the Department to be inappropriate for

affordable housing development by additional objective criteria, including areas severely

lacking in access to public transit, accessibility to employment or educational

opportunities, and residentially supportive retail and service amenities, all as to be

determined through regulations adopted by the Department at its discretion; until the

Department adopts such regulations this sub- paragraph (H) shall not be interpreted to

prohibit any such site. The Department is authorized, but not mandated, to adopt

regulations to implement the terms of this sub- paragraph (H); and such regulations

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shall be adopted pursuant to the Administrative Procedures Act set forth in Government

Code section 11340 et seq. Division 13 of the Public Resources Code shall not apply to

either: the Department’s adoption of the regulations authorized by this section, or any

financial assistance awarded by any public agency to any development that satisfies

subdivision (b) of this section. This section shall be operative regardless as to whether

the Department adopts the regulations authorized by this section.

(I) Within a site that has been designated in the National Register of

Historic Places pursuant to the National Historic Preservation Act of 1966, or a

site that has been listed in the California Register of Historical Resources

pursuant to section 5021 of the Public Resources Code.

(6) Unless the proposed housing development replaces units at a level of

affordability equal to or greater than the level of a previous affordability restriction, the

development must not be on a site in which any of the following apply:

(A) The site includes a parcel or parcels on which rental dwelling units are, or,

if the dwelling units have been vacated or demolished in the five-year period

preceding the application, have been subject to a recorded covenant, ordinance, or

law that restricts rents to levels affordable to persons and families of lower or very low

income.

(B) The site is subject to any other form of rent or price control through a public

entity’s valid exercise of its police power; or occupied by lower or very low income

households.

(7) The development applicant or proponent shall provide a copy of the

declaration required by subsection (b)(1) of this section to all landowners of legal

parcels adjacent to the development concurrent with filing the submittal authorized by

this section. This sub-paragraph (7) may be satisfied if the aforementioned

declaration is mailed to the landowners at the address identified for receipt and

payment of taxes through the applicable county assessor, or if mailed to the subject

adjacent parcel’s postal address.

(8) The development shall not be upon a site that is Prime Farmland, as

defined pursuant to United States Department of Agriculture land inventory and

monitoring criteria, as modified for California, and designated on the maps prepared

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by the Farmland Mapping and Monitoring Program of the Department of

Conservation.

(c) If the applicable local government determines that the development is

inconsistent with at least one of the objective planning standards delineated in

subsection (b)(2), then it must provide the development applicant or proponent written

documentation of which standard or standards the development is not consistent with,

and a written explanation why the development is not consistent with that standard or

standards, all within thirty (30) calendar days of submittal of the development to the

local government pursuant to this section. If the documentation described in this

subsection fails to identify the objective standard or standards that the development is

not consistent with, if it fails to provide an explanation of why it is inconsistent therewith,

or if it is not provided to the development applicant or proponent within thirty (30)

calendar days of submittal, then for the purposes of this section, the development shall

be deemed to satisfy paragraph (2) of subdivision (b) of this section.

(d) Any design review of the development shall not exceed ninety (90) days from

the submittal of the development to the local government pursuant to this section, and

shall not in any way inhibit, chill, or preclude the ministerial approval provided by this

section and the effect thereof.

(e) A development that satisfies subdivision (b) of this section shall not be subject

to the requirements of Section 65589.5 of the Government Code in order to be

accorded by right status under this section.

(f) This section does not relieve an applicant or public agency from complying

with the Subdivision Map Act (Division 2 (commencing with Section 66410)).

(g) The review or approval of a permit, license, certificate, or any other

entitlement, by any public agency with land-use authority over any development that

satisfies subdivision (b) of this section shall be ministerial.

(h) Any person, as defined in Section 11405.70, seeking to require a City,

County, or public agency to ministerially review or approve the matters set forth in

subdivision (g) or enforce the by right provisions of subdivision (b) shall have the right to

enforce this Section through a writ of mandate issued pursuant to Section 1085 of the

Code of Civil Procedure. Owners of legal parcels adjacent to any development that

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obtains by right approval under this section may also obtain relief through a writ of

mandate issued pursuant to Section 1085 of the Code of Civil Procedure, the petition for

which must be filed within thirty days of the earlier of the adjacent land-owners receipt of

written notice of the subject approval, or actual notice of the approval.

(i) The development applicant or proponent may submit information describing

the development pursuant to Government Code Section 65400.1(a).

(j) The Legislature finds and declares that this section shall be applicable to all

cities and counties, including charter cities, because the Legislature finds that the lack

of affordable housing is a matter of vital statewide importance.

(k) Any and all individuals displaced by a development that is approved through

the ministerial process authorized by this section shall be accorded relocation

assistance as provided in the California Real Property Acquisition and Relocation

Assistance Act, set forth in Chapter 16, commencing with Government Code Section

7260. The development applicant or proponent shall be responsible for paying for

relocation assistance expenses incurred by any local agency as a result of this section.

(l) This section shall apply, notwithstanding anything to the contrary contained

in this code or in any other law.

(m) Nothing in this section shall be construed to expand or contract the

authority of local government to adopt an objective standard by ordinance or charter

amendment requiring housing developments to contain a fixed percentage of housing

units affordable to and occupied by persons of specified lower or moderate incomes.

Any affordable housing units shall be credited against the affordable units required to

be created pursuant to subsection 65913.3(b)(4).

(n) A locality may adopt and publish a list clarifying its existing objective

planning standards that a development must be consistent with as referenced in

subsection (b)(2) of this Section.

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“By Right” Housing ApprovalsProposed Trailer Bill1

June 10, 2016, Version

The Department of Finance released an updated version of the Governor’s “by right” housing proposal. http://www.dof.ca.gov/budgeting/trailer_bill_language/local_government/documents/707StreamliningAffordableHousingApprovals6-10-16.pdfWhile some minor issues have been clarified, other new issues of concern have been added.

Basic Framework: The Governor’s proposal for streamlining affordable housing approvals requires cities and counties to approve:

A certain type of housing project with modest levels of affordable units As a permitted “use by right” With no public input; With limited ministerial review; and No CEQA compliance

Major Changes:

Adds definition of “objective planning standards” and “objective design standards” which prohibits personal or subjective judgement by the public official.

Adds definition of “financial assistance”

Requires developer applying for ministerial review to notify owners of adjacent parcels

Prohibits approval of housing project on Prime Farmland.”

Expands the definition of “immediately adjacent to urban uses” to include parcels adjoined by a street or highway

Allows “any person” to file suit to require city/county to grant ministerial approval. Adjacent property owners are also allowed to sue the city/county to enforce the statute or challenge the city/county’s approval.

Clarifies that an inclusionary housing ordinance is an “objective planning standard” but that a housing development’s affordable units must be credited against the affordable units required by an inclusionary ordinance.

What types of housing projects are included?

Newly constructed structure containing two or more dwelling units in a project that is entirely residential or part of a mixed-use development that comply with the criteria summarized in the next question. The proposal does not apply to the construction of a

1 Based on most recent Department of Finance draft.

Attachment 3

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second unit or the conversion of an existing structure to condominiums. [NOTE: The proposal is not clear. A cross reference to another definition in the law, raises concerns that the law could also apply to a single-family housing development, mixed use or transitional or supportive housing.]

What restrictions are placed on the location of these housing projects?

1. Urban site: Located on a site that is either immediately adjacent to parcels that are developed with urban uses or for which at least 75% of the perimeter of the site adjoins parcels that are developed with urban uses. The revised version adds “or is bounded by a natural body of water,” which presumably is intended to pick up sites bordering the ocean, lakes and rivers.

2. Prohibited sites: A Project cannot be located on the following sites unless the development incorporates “approved remediation measures:” (A) Farmland of statewide importance; (B) Wetlands; (C) Within a very high fire hazard severity zone [unless the site is within 5 miles of the nearest fire station; has been excluded from specific hazard zones by the city/county; or has adopted sufficient fire hazard mitigation measures; (D) Hazardous Waste site; (E) Within a delineated earthquake fault zone; (F) Flood plain; (G) Floodway; (H) Within an area “determined to be inappropriate for affordable housing development” by the Department of Housing and Community Development based upon “objective criteria” such as lacking in access to public transit, accessibility to employment or educational opportunities, and residentially supportive retail and service amenities. The third draft of the proposal prohibits a housing development on “Prime Farmland” even if the development incorporates “approved remediation measures.”

3. Replacing existing affordable housing: Unless development replaces units at a level of affordability equal to or greater than the level of a previous affordability restriction, the development may not be on any property that is (A) a parcel on which rental dwelling units are, or have been within past 5 years, subject to a recorded covenant that restricts rents to levels affordable to persons and families of lower or very low income; (B) subject to any other form of rent or price control; or (C) occupied by lower or very low income households.

What is a permitted “use by right?”

This means that a city may not require a conditional use permit, planned unit development permit, or other discretionary review or approval that would constitute a “project” for purposes of CEQA. [NOTE: This means that approval of a housing project covered by the proposal is not subject to any environmental evaluation under CEQA.]

What is the approval process for a housing project that qualifies for permitted “use by right” review?

Within 30 days of receiving an application, the public official must either approve the development or explain why it is inconsistent with objective planning standards. If the public official fails to respond within 30 days or fails to provide an explanation, project is deemed to be consistent with general plan and zoning standards.

What else is included in the proposal?

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Declaration that the proposal applies to charter cities Declaration that it overrides anything to the contrary in the existing law. CEQA does not apply to a public agency’s award of financial assistance to any

development that qualifies as a permitted use by right under the proposal. The revised version defines “financial assistance” to mean any award of public financial assistance that is conditioned upon certain specified award conditions including the award of tax credits through the California Tax Credit Allocation Committee and grants or loans by a public agency.

What criteria must a housing project comply with to qualify for permitted “use by right” review?

A housing project must comply each of the following requirements:

Objective planning standards: Consistent with the following objective planning standards: land use and building intensity designation applicable to the site under the general plan and zoning, or other objective zoning standards, and any setback or objective design review standards in effect at the time the application is submitted

Affordability (TPA): For developments within a transit priority area2, subject to a restriction lasting 30 years for owner-occupied and 55 years for rental requiring at least 10% of the units be affordable to lower income households or at least 5% of the units to be affordable to very low income households.

Affordability (non-TPA): For developments outside a transit priority area, subject to a restriction lasting 30 years for owner-occupied and 55 years for rental requiring at least 20% of the units to be affordable to households whose income is 80% or less of area median gross income.

Approved remediation measures: A project is not entitled to use by right if it is located on certain sites (e.g. prime farmland, hazardous waste site, etc.) unless the developer complies with “approved remediation measures.” These are measures included in a certified environmental impact report to mitigate the impact of residential development in the location proposed by the project; or uniformly applied development policies or standards that have been adopted to mitigate the impact of residential development in that location.

Comments and Concerns

Broad definition of who can sue to enforce statute

The third draft of the proposal says that “any person” seeking a city/county to review or approve a housing development under this section may sue. “Any person” is a significant expansion of the universe of people who would typically have “standing” to sue. For example, the Housing Accountability Act [“Anti-NIMBY” statute] allows only the applicant or

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any person who would be eligible to live in the development to bring an action to enforce the statute.3

Also, property owners of parcels adjacent to the development may sue within 30 days of the earlier of the adjacent land-owners receipt of written notice of the subject approval, or actual notice of the approval. (Note: it is not clear what the rationale is in this version of both notifying adjacent property owners and then empowering them to sue a local agency. Typically public notice precedes an opportunity to be heard, but “ministerial” means no public discussion and no discretionary decisions that could be informed by public input, leaving unsatisfied parties with the courts as their only forum. An approving city could potentially face lawsuits from both proponents and opponents. Unprecedented role for HCD in local land use planning

The proposal authorizes HCD to inject itself directly into local land use authority by adopt regulations that determine areas that are inappropriate for affordable housing development because they lack access to public transit, accessibility to employment or educational opportunities, and residentially supportive retail and service amenities. The term “affordable housing development” is not defined in this measure potentially empowering HCD with even broader authority. A development proposed in an area identified as “inappropriate” will not qualify for “permitted use by right” unless the development incorporates “approved remediation measures.”

No public review

The hallmark of local government land use decisions has been the public hearing. A public hearing (1) allows interested members of the community to inform the decision-makers of their support or opposition to the project; and (2) guarantees that property rights will not be impacted without the “due process of law.”

Excluding the elected decision makers

The proposal excludes the elected city council and board of supervisors from land use decisions. These public officials are elected to represent their constituents and to be available and responsive. The proposal asks appointed staff, who are not directly accountable to local voters, to make the policy decisions: this is the arena reserved for elected officials.

Local governments are already required to approve housing but with public hearings and CEQA review

Housing Accountability Act (20% lower income; 100% moderate income or middle income; emergency shelter) (Gov. 65589.5)

Must approve a housing project that is consistent with general plan and zoning ordinance unless (1) specific adverse impact on public health or safety; (2) housing is not needed; (3) denial required to comply with state or federal law; (4) project is on land zoned for agriculture or resource preservation.

3 Government Code § 65589.5(k).

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“No net loss” (Gov. 65863)

May not reduce the residential density for any parcel unless remaining sites identified in housing element are adequate to accommodate RHNA

Density bonus (Gov. 65915)Must award density bonus and other concessions and incentives when development includes 10% lower income, 5% very low income, senior citizen, or 10% for moderate income in common interest development

Least cost zoning (Gov. 65913.1)

Must zone sufficient land for residential use with appropriate standards to meet housing needs for all income categories identified in housing element. When land is zoned, then Housing Accountability Act requires approval.

Second units (Gov. 65852.2)

Must approve second unit with ministerial review. City may not adopt ordinance that totally precludes second units in residential zones unless specific adverse impacts on public health, safety, and welfare.

Ministerial approval of multifamily housing (Gov. 65589.4)

Must approve as a permitted use multifamily housing structure located on an infill site that is consistent with general plan and zoning ordinance in which at least 10% of the units are affordable to very low income households; or at least 20% available to lower incomes; or 50% affordable to moderate income households.

No project specific CEQA review

The proposal requires ministerial review of a housing project if it is consistent with “objective general plan and zoning standards.” CEQA review that is required for both the general plan and zoning ordinance does not extend to the project level. CEQA review that is required for both the general plan and zoning ordinance may have occurred many years before the development application is submitted. Cities and counties will not be able to determine whether site-specific conditions or changed circumstances and new information require environmental mitigation. If for some reason a previous environmental document was helpful in evaluating the project, the bill does not allow a city to impose conditions to require compliance with previously-adopted mitigation measures.

What are “objective zoning standards”?

To be a “permitted use by right,” a development must comply with the location requirements, the affordability requirements, and must be consistent with the following objective planning standards: land use and building intensity, land use and density or other

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objective zoning standards, and any setback or objective design review standards. The third draft of the proposal defines “objective zoning standards” and “objective design review standards” as standards that

“involve no personal or subjective judgment by the public official; the standards must be uniformly verifiable by reference to an external or uniform benchmark or criterion available and knowable by both the development applicant or proponent and public official prior to submittal.”

The new definition clarifies that an inclusionary housing ordinance is an “objective zoning standard” but requires that the affordable housing units provided in the housing development must be credited against the requirements of the inclusionary ordinance. The third draft of the proposal authorizes a city/county to adopt and publish a list of “objective zoning standards” that a development must be consistent with.

Affordable housing will not remain affordable

A housing development must be “required by law to record” a land-use restriction based on, for example,(1) a condition of award of funds or financing from a public agency; (2) as a condition of the award of tax credits; (3) as might be required by contract entered into with a public agency. In order for a housing development that does not receive funding to remain affordable, a city/county must adopt a requirement to record a land use restriction to maintain affordability.

Breadth of the proposal

The proposal states that it applies “notwithstanding anything to the contrary contained in the law.” It is not possible to accurately evaluate the impact of this statement because of its breadth.

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Commission on Disability

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099E-mail: [email protected] Website: http://www.CityofBerkeley.info/Manager



From: Commission on Disability

Submitted by: Martha Singer, Chairperson, Commission on Disability

Subject: Additional Parking Spaces for Persons with Disabilities at the New Center Street Garage

RECOMMENDATION Add five (5) parking spaces to the sixteen designed spaces for a minimum of twenty one for persons with disabilities.

FISCAL IMPACTS OF RECOMMENDATIONUnknown

CURRENT SITUATION AND ITS EFFECTSThe Center Street Garage renovation as planned will have only 16 spaces out of 720 that will be accessible and specified as Disabled Person parking. The Commission on Disability learned of this situation several months ago, and feels that this number though it meets code, is too low to meet the need for accessible parking in Berkeley. The Commission on Disability (COD) currently recommends 5 or more additional parking spaces for persons with disabilities.

BACKGROUNDThe Commission on Disability in its April 20, 2016 meeting approved the following Action B3b:

Action: It was moved, seconded, carried (Weiss/Leeder) to recommend to City Council to increase the number of accessible parking spaces at the Center Street Garage Replacement Project from sixteen to twenty-one. Ayes: Leeder, Singer, Upadhyay, Walsh, and Weiss. Noes: 0. Abstain: 0 Absent: 0 Motion passed (5-0-0).

The City of Berkeley has a higher percentage of persons with disabilities than most cities. The 2010 US census reported that the population of Berkeley was 112,580, a number that doesn't include generally UC Berkeley students. The 2013 US Census American Community Survey or ACS indicated estimate of 12.6% of US population counting all ages have one or more disabilities. The 2013 survey indicates 7.1% have an ambulatory disability. Given Berkeley's population and demographics, we can

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Additional Parking Spaces for Persons with ACTION CALENDARDisabilities at the New Center Street Garage September 13, 2016

assume possibly that 10% have ambulatory disabilities and might use placard parking that would account for over 11,000 potential users of vehicles (10% of 112,580). When coupled with visitors to Berkeley we can assume a greater need for designated placard parking than might be provided by a building code.

The new parking garage increases overall parking from 420 to 720 but only provided16 accessible parking spaces. This number is inadequate given the local demographics. The new garage should allocate more space for these users and increase designated spaces by a minimum of 5 for a total of 21 accessible spaces.

While it is likely that the city has investigated the optimal number of parking places for its general residents, the 16 disabled parking spaces designated in the current plan for accessibility is less than the optimal number of spaces for parking for persons with disabilities. Berkeley has many residents who need accessible parking and a history of being a safe haven and gathering place for the disability community. Additionally, the percentage of persons greater than 65 years old is increasing which is likely to further increase the need for accessible parking. It appears that the number of parking spaces for persons with disabilities was selected to meet the requirements of the Americans with Disabilities Act (ADA). COD requests that the number of accessible parking places be optimized to meet the needs of the community. The changes in the Center Street Garage will affect the community during construction as well, and changes at the garage will spill over into street parking for persons with disabilities.

We are aware that the ADA requires 15 accessible spaces, but that does not reflect the number of persons with disabilities living in and visiting Berkeley. The current designated spaces including van accessible spaces, are on the second level. These spaces meet all ADA requirements. Staff met with the Building Official and was informed that the Permit Center will not object to additional accessible spaces on the floors above the second floor, provided that they comply with the path of travel requirement. On each level there are two such spaces near the elevator. Total of 12 spaces in six additional levels. These additional spaces will not be required to meet the height that is required for full accessible space. The Commission on Disability notes that these possible additional spaces would contribute to meeting the overall need for accessible parking.

ENVIRONMENTAL SUSTAINABILITYNone

RATIONALE FOR RECOMMENDATIONThere are limited parking choices in downtown Berkeley, and the Center Street garage is an important source of parking for people with disabilities. The lack of accessible parking would preclude participation in many community and cultural events for many individuals

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Additional Parking Spaces for Persons with ACTION CALENDARDisabilities at the New Center Street Garage September 13, 2016

ALTERNATIVE ACTIONS CONSIDEREDIt is possible and likely that there is a more optimal number of accessible parking spaces that would be based on the proportion of Berkeley residents and visitors with disabilities. The specific numbers of Berkeley and area residents and visitors needing accessible parking compared to the numbers used in ADA minimal calculations are not readily available at this time.

CITY MANAGERSee Companion Report

CONTACT PERSONCarmella Rejwan, Secretary to the Commission on Disability, Department of Public Works, (510) 981-6341

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Upcoming Workshops – start time is 5:30 p.m. unless otherwise noted Scheduled Dates September 13

(5:00 pm) 1. Zero Waste Division Update 2. Alameda County Housing Bond Presentation

September 20 Crime Report

September 27 1. Strategic Plan Update 2. 2020 Vision Update

October 18 Public Works and Parks, Recreation & Waterfront Infrastructure (Tentative) November 1 Zoning Amendments/Adeline Corridor November 15 Enterprise Resource Planning Update/Information Technology Strategic Plan November 29 Referral Process Update December 13 Economic Development Update

Unscheduled Workshops 1. Mental Health Commission Referral - Crisis Response

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City Council Referrals to the Agenda Committee 1. Medical Cannabis Ordinance Revisions and Dispensary Selection Process; Amending

BMC Title 12 (March 15, 2016) – to be scheduled pending the outcome of current state legislation.

2. Support for the Berkeley Housing Authority (June 14, 2016) – adopted a portion of the staff item to Convert the City’s existing loan of $225,000 for a security deposit loan fund into a grant, allowing BHA to use $134,464 to support staffing costs associated with transitioning five Shelter Plus Care clients and five clients living in SROs to a Section 8 certificate each year, for five years. Remainder of item referred to Agenda Committee.

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Address Board/Commission

Appeal Period Ends

Determination on Appeal Submitted

PublicHearing

NOD – Notices of Decision

Appeals Submitted

Public Hearings Scheduled2508 Ridge Road (Bennington Apartments) LPC 10/18/20162750 Dwight Way (new wireless telecommunications facility) ZAB TBD2597 Telegraph Ave (Regent Terrace) ZAB TBD

Remanded to ZAB or LPC

Notes

Last Updated: 8/25/16

CITY CLERK DEPARTMENTWORKING CALENDAR FOR SCHEDULING LAND USE MATTERS

BEFORE THE CITY COUNCIL

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