Public Comment

A community group, Concerned Library Users, recently sued the City of Berkeley to, in part, stop the illegal use of bond funds for the demolition of two branch libraries.

Although the lawsuit has been excoriated and ridiculed by some public officials and community members it is, in my view, a justifiable and important effort to restrain the City from improperly changing the voter-approved use of bond money. 

Let me state first that I am not a member of Concerned Library Users, nor am I a party to the lawsuit. My concerns about the bond arose separately, and well before the suit was filed. But they are directly relevant to some of the issues in the lawsuit. 

There is one—just one—central point here. 

Is it legal for a City to solicit bond funds from the voters with a specific set of written promises, then later change the use of the money to do something the ballot measure specifically did NOT fund? 

In 2008 Berkeley voters approved Measure FF, which provided 26 million dollars to renovate and expand Berkeley’s four branch public libraries. The exact wording of the ballot language is worth remembering. 

“Shall the City of Berkeley issue general obligation bonds not exceeding $26,000,000 to renovate, expand, and make seismic and access improvements at four neighborhood branch libraries, but not the Central Library, with annual reporting by the Library Board to the City Council?” Vote Yes or No. 

Subsequent to voter approval of the bonds, the Library continued a planning and design process and hired a design team for each branch. 

By early 2010 the direction of the detailed planning was clear. The Board of Library Trustees intended to renovate and build a rear addition on the North Branch, renovate the Claremont Branch without significant expansion, and demolish and completely rebuild the West and South branches. 

The bond allows two of those proposed activities—renovation and expansion. One of them—demolition—is not allowed. 

By proceeding down a path that will result in the demolition of the two branches, the City of Berkeley and Board of Library Trustees are directly violating the will of the voters. 

Is this important? Indeed it is. If the City can establish that the explicit conditions of voter-approved bonds can be altered or ignored after the fact, then no funding earmarked for a specific purpose is safe. 

There would be no point in detailed bond language or conditions at all. Instead, each ballot statement might as well read, “Do you, Berkeley voters, approve giving X million dollars above and beyond your regular taxes to the City of Berkeley to spend as it wishes? Yes or No.” 

Does this matter to you? It should. What if, for instance, the School District put up a bond measure promising to renovate your neighborhood school, and you worked hard to get it passed. Then, after the election, the School Board said, “Hey, sorry, we thought all along that money would be better spent closing your school and renovating another. Sorry.” 

Or what if the City Council asked voters to approve a special tax devoted solely to increase police services then, after it passed, decided that the money should go to sewer repairs instead? All for good reason, of course. 

Wouldn’t you object on principle? Shouldn’t you? 

So why didn’t anyone object to the proposed demolition of the South and West branches earlier than the middle of this year, when the plans were far advanced? 

People did object earlier. I was one of them. No objections had any effect. 

Consider the minutes of the October, 2009, Board of Library Trustees meeting. The Board met to discuss the South Branch project and take public testimony. 

I attended that meeting and spoke specifically to the issue of the intent of Measure FF. Here’s how the minutes recorded my comments. They don’t exactly repeat my words, but the summary is reasonably accurate. 

“Demolition vs. renovation: he has reviewed all of the public documents on the library bond through the annual report. He believes library represented to the community that would renovate and expand the branch, in his analysis given the wording of the bond measure and election analysis the library is foreclosed from a teardown of any branch, legal risk of violation, can not be easily dismissed.” 

Remember, this is in October 2009, well over a year ago and before the Board of Library Trustees had stated its choice of a demolition / rebuild scheme for the South and West Branches. 

What did the Board say in response to my comments? 

Here’s a comment from Darryl Moore, as reported in the minutes. “In response to questions raised he suggested staff consult with the City Attorney’s Office if needed.” 

That’s dry language, but it makes the point. I recall Councilmember Moore said something along the lines of “We’ve been put on notice” and asked the staff to get legal advice on whether the bond language would allow the demolitions. 

Then there’s this highly revealing comment. Remember, this is not my wording; it’s from the official minutes of the Board. 

“Trustee Kupfer agreed with the positive comments regarding Scheme 2. To address a concern expressed during comments about the library’s ability to build new, she does not believe it is not allowed. The process leading up to the bond measure included a community process, public discussion by the board and a vote by BOLT, a new library scheme was discussed as an option throughout the process.” 

Again, dry official minutes language. I remember that Trustee Kupfer seemed genuinely mystified that anyone would think the bond funds couldn’t be used for demolition. After all, they had demolition on the table all along, she argued. Everyone knew it was being considered. 

Did they? Did we? Did the Trustees really intend, from before the 2008 election, that any planning for the South and West Branch Libraries put demolition seriously on the table? 

If so, they had a strange way of communicating that intention to the voters. 

There was indeed a consultant report before the election that considered demolition. But in the critical months leading up to the bond election itself, public library documents and campaign literature fell strangely and selectively silent on the possibility of the demolition. 

For example, here’s part of the text of the ballot argument in favor of Measure FF signed by, among others, Councilmember Moore, then Vice-Chair of the Board of Library Trustees. 

“The branches are old and out of date and must be improved in order to support the over 800,000 visits during the year…This measure will bring the buildings up to current code standards, meet seismic requirements, make all of the branches fully accessible to Berkeley’s diverse population.” 

No word about “demolition” there, or elsewhere in the ballot arguments. In fact, the rebuttal to the ballot argument against Measure FF emphasized, “Help save and restore our neighborhood branch libraries by voting YES on Measure FF!” (emphasis added). 

And it wasn’t only the official ballot arguments. Here’s what “Save Our Branch Libraries: Yes on Measure FF” said on its Facebook page. “Measure FF is a $26 million bond to renovate, expand, and make seismic and access improvements at four of Berkeley’s neighborhood branch libraries…” 

And here’s a fact sheet issued on Library stationery for the election. 

“The revenue from the bond will bring the buildings up to current code standards...What are the plans for each of the Branch Libraries?...North Branch, receive a small addition…West Branch have it’s 1974 addition replaced to address structural issues; restore original 1923 branch façade…South Branch…expanded to incorporate the Tool Library program into the branch with substantial increase in space…net space increase of 3,160 sq. feet…Claremont Branch receive a small lobby expansion…refurbished/restored historic features…” 

And here’s part of a Daily Planet opinion piece by three prominent Library supporters, less than two months before the election. “It is critical that we renovate all our branches to ensure they are safe, modern, buildings that will serve our community…” 

Consider all that language. “Bring the buildings up to current code standards… must be improved… save and restore our neighborhood branch libraries… be expanded… receive an addition… restore original… refurbish…restore…renovate all our branches…” 

If arguments like those constituted a clear request to the voters to allow demolition of half the branch libraries, the Library must be using a different dictionary than the rest of us. 

Councilmember Max Anderson recently told the San Francisco Chronicle, “The people voted for these libraries to be fixed up – they didn’t vote to put restrictions on what can and can’t be done with them.” 

Councilmember Anderson is well intentioned, but completely wrong. The people DID indeed vote for restrictions, restrictions crafted by the promoters of Measure FF. 

If Measure FF had simply been a mandate to “fix up” and/or completely rebuild the branches without precondition, then it would not have included the “renovate, expand and make seismic and access improvements” wording. 

It would have simply said something like this: “Do you approve of appropriating 26 million dollars from special property taxes that the Board of Library Trustees may then use for making the four branch libraries better, in whatever way the Board deems best?” 

Or perhaps it would have said, “renovate, expand, demolish / rebuild, and make seismic and access improvements…” 

There’s a good reason, I suspect, that language like that did NOT go on the ballot. I believe that those who prepared the wording of Measure FF were afraid that if the measure seemed to open the door to demolition, enough voters would say “No” to sink the bonds. 

In particular, voters in politically influential north and southeast Berkeley might have been afraid the Library would demolish either the North or the Claremont Branches. It wouldn’t be the first time in Berkeley that a public institution asked for bond funds to upgrade facilities, then demolished and rebuilt them instead. 

If the ballot measure wording had been in specific—or had specifically mentioned demolition—it is quite likely the measure would have been defeated and there would be no money to do anything with any of the branch libraries at this time. 

I know I would have voted against it for that reason, and I know many others who probably would have, too. And it would have made a critical difference. 

Measure FF passed with 68.01 percent of the votes. It needed a two-thirds majority, 66.6 percent. 

That two-thirds majority would have required 37,223 votes out of those cast. The Measure received 37,973. Thus, it has a margin of victory of about 750 votes. 

Would 750 “Yes” voters—out of more than 55,000 casting votes on the Measure—have decided against Measure FF if the ballot language and campaign had given them reason to be concerned about demolition of any or all of the branch libraries instead of renovation? 

I think any reasonable person familiar with Berkeley would agree that’s quite possible, especially if the Board of Library Trustees had made honestly made demolition a part of their case and campaign for the branch funding. 

So foreclosing the possibility of demolition was, in my view, a direct reason the Measure achieved the two-thirds threshold. 

In essence, the trustees chose to opt for a “safe” bond measure that would not include demolition. Now that they have the money they shouldn’t go back and change its use. 

They had free will in this. They chose the wording of the bond measure. They advocated for “renovate, expand, and make seismic and access improvements…” They entered into a compact with Berkeley voters and taxpayers on terms they established. 

That seems to me to be an essential point of the lawsuit. And perhaps there’s a little tacit agreement, even on the City side. 

In June, City Attorney Zach Cowan apparently advised the City Council that Measure FF money could not be used to demolish the South and West Branches. 

There’s simply no reason he would have advised that if he didn’t believe a legal challenge to the Measure on the demolition issue would have a chance in court. 

That advice may not, however, have extended the same prohibition to use of the Measure FF funds to construct entirely new buildings. So the City and the Board of Library Trustees and their legal staff might be working on a back-up strategy. 

Find funds elsewhere, outside the bonds—probably on the order of hundreds of thousands—to tear down the two branches. That would cause the City some financial pain, but would not be impossible. 

Then claim that, with the old buildings gone, entirely new buildings can be constructed with the Measure FF funds to satisfy the bond intent of providing safe, accessible, expanded branch libraries. 

If that indeed is the City’s strategy it is important that it be vigorously opposed. Making the branch buildings go away with some other funds then rebuilding them with Measure FF funds would be, in my view, as clear a violation of voter intent as doing it all with the bond money. 

It would be a bit of legal sophistry, not clear justice. And it would open the door just as fully to official amnesia about voter intentions in the future on any other ballot measure. That would be very bad for Berkeley. 

(I fully understand many readers are now wondering what I would propose for the libraries instead of what the City is currently trying to do? 

If all my arguments went to their logical conclusion, the City would have no bond funds available to pursue the preferred plan of demolishing the South and West branches. Surely I don’t believe they should just sit there in poor condition? 

No, I don’t. I would be happy to write another opinion piece explaining—again, going back to 2009—what approach I think the Library could have followed and why they can still follow it and achieve the goal of good, updated, branch libraries. 

But the arguments for or against other alternatives should not detract from the primary argument I’ve made in this commentary—that regardless of benefits or harm to the Library’s projects, it is bad public policy, and probably illegal, to change the use of bond monies from what voters explicitly approved.)