The Making of a Controversy (Opinion Commentary)

By Judith Epstein
Thursday May 12, 2011 - 10:46:00 PM

Given the number of lawsuits against the City of Berkeley at any given time, it probably seems odd that the library lawsuit would generate so much controversy. Just yesterday, a new lawsuit was filed against the City, and a decision is expected in yet another by next week. It’s almost like a judicial cycle of life in Berkeley – a cycle fed by a Council majority that seems unwilling or unable to follow the law. In this regard, the Concerned Library Users (CLU) lawsuit about the misuse of Measure FF funds is not unusual in the way the City works. What is unusual is the vitriol being slung by a small group of people, who want to bypass an election. 

In November 2008, voters passed Measure FF “to renovate, expand, and make seismic and access improvements at four neighborhood branch libraries.”The City Attorney’s impartial analysis of Measure FF made this additional promise: “The bond measure specifies that bond proceeds would be limited to renovation, construction, seismic, and disabled access improvements, and expansion of program areas at the City’s four neighborhood branch libraries…Current plans for renovation include restoration and refurbishment of historic features at the branch libraries as part of any renovation.”  

The campaign literature in favor of Measure FF promised historic restorations as part of library renovations, which would be impossible if libraries were demolished. This was particularly important, since the same ballot contained the controversial Measure LL, which would have facilitated demolitions of historic resources. It was soundly defeated by 7000 votes, while Measure FF passed by just 750 votes.Had Measure FF specified that bond funds would be used for demolitions, it wouldn’t have passed at all.  

We took the call to improve and expand our branch libraries so seriously that wesubmitted alternative designs by Todd Jersey, a renowned preservation architect. These designs could be legally funded by Measure FF. They would result in larger libraries than the City planned for South and West Berkeley. The City’s designs provide only the current level of service, while our designs would accommodate growing neighborhoods.It's smarter, greener, and less expensive in the long run for these projects to be done right the first time. 

The City has known since 2009 that there were objections to using Measure FF funds for demolition-dependent projects, as recounted in a commentary by Steve Finacom

On July 6, 2010, I wrote to Council informing them that the proposed demolition projects for the South and West Branch Libraries were inconsistent with Measure FF. There was still ample time to put a measure on the November 2010 ballot, asking the voters to approve the change of plans. This is exactly the remedy offered in Berkeley Municipal Code. For reasons only they can know, the Council decided that the voters should not be consulted. Had the Council put a measure on the ballot for last November, the voters would have decided the fate of the branch libraries six months ago, and a lawsuit would never have been filed. 

The lawsuit was a remedy of last resort. It was filed, because the Council wants to nullify an election in which 55,834 voters decided about Measure FF. Now, the better part of a $26 million bond fund is at stake, and maybe that’s what makes this lawsuit so different and the reaction to it so extreme. The controversy seems to be intentional. At least that’s how it was presented to me. 

On October 6, 2010, Linda Schacht Gage, Capital Chair of the Berkeley Public Library Foundation, approached me in Moe's Books and threatened me. At first, she wanted to know my name and seemed reluctant to disclose hers. Then, in the course of the conversation, she said, "If you go ahead with this lawsuit, I'm going to tell people that you don't want minority neighborhoods to have new libraries." This is how the insinuation of racism got injected into the discussion about a lawsuit based on voter rights, the environment, and preservation. I have heard this falsehood repeated by a number of people, including the wife of a Council member. That’s the thing about a threat. It’s not about truth; it’s about power. That’s also when I realized that our lawsuit might have a very sound basis – otherwise there would be no point in threatening me. 

On November 28th, Julie Nachtwey, an associate of Schacht’s, used her Pacific Union email account to contact what appears to be a large number of people about our case. She wrote about much-loved library programs, such as Berkeley Reads, and then she described us as a “handful of obstructionists” who, as she wrote, wanted to “KILL THESE projectS.” She followed this outrageous statement with my home address – a tactic not unlike that used by people who want to kill abortion doctors. Pacific Union later sent out a disclaimer, distancing itself from Nachtwey’s actions, but some of the recipients of the original email never received it. Pacific Union has yet to apologize or contact all recipients of the original email to set the record straight. 

Using a tactic similar to Nachtwey’s, David Snyder, Executive Director of the Berkeley Public Library Foundation, passed out an anonymous leaflet with my home address at a Board of Library Trustees meeting on December 8th. Snyder, who is not a Berkeley resident, is fond of publicly criticizing non-Berkeley residents who favor our cause. On the night in question, he spoke out against the lawsuit. He didn’t have the courage or integrity to even disclose his city of residence, but he read my home address into the record. 

On December 14th, the City of Berkeley and Concerned Library Users agreed on a partial settlement for the lawsuit. Not long after that, the Berkeley Public Library Foundation intervened in the remaining cause of action: the illegal use of Measure FF funds for demolition projects. A majority of the City Council and quite a few current and past members of the Board of Library Trustees are foundation members. 

In the months leading up to the partial settlement, anonymous and defamatory comments about me began to appear on Berkeleyside.com. Without admitting fault, Berkeleyside agreed to delete them. It was impossible not to notice that some of the wording and syntax resembled comments made in public by foundation members. 

After the new year, Council member Darryl Moore was overheard telling people in a public place that it was “time to ramp up the publicity campaign” about the lawsuit, and on March 9th, Council member Max Anderson’s office announced a community engagement meeting, set for March 15th. The email, which came with instructions to be forwarded, was also copied by Gordon Wozniak and sent out to his constituents in a private email. 


Steve Finacom covered the almost surreal events surrounding this meeting in an article for the Planet. 

As members of the public began to arrive, Council member Darryl Moore physically blocked entry to the meeting. Council member Linda Maio said that she considered the meeting to be private. Council member Anderson would not even acknowledge some of his own constituents, who stood waiting for admission. After all, he’d invited them. Only a handful of selected individuals were admitted as invited guests. They included David Snyder, Linda Schacht Gage, and Elizabeth Watson, all of the foundation, as well as Donna Corbeil, the Director of Library Services, Winston Burton of the Board of Library Trustees, and Carole Kennerle, who had written a letter to the Planning Commission in support of library demolitions. Additionally, Moore’s aide, Ryan Lau, and Anderson’s aide, Charlene Washington, were in attendance. At most, one or two other people gained entry. 

Suddenly, the guests left. Maio claimed that there would be no meeting, but Finacom followed them to Maio’s house, where the public meeting continued away from the public’s curious eyes. 

On April 20th, Anderson’s office sent an email using words that closely resembled an earlier piece by Schacht concerning public meetings about the libraries. In this email, as in a number of Schacht’s writings, the lawsuit was said to be filed by a single person. Schacht usually names me, when she makes this accusation, but this email only referred to the woman who filed the lawsuit and called for a rally on April 26th to urge her to drop it. The fact is, I am only one member of CLU, and I get only one vote in our decisions. I have no sole power to drop the lawsuit. If I left CLU today, the others would continue the lawsuit without me.  

I find it odd that people who say they want settle the lawsuit would behave this way. Common sense dictates that a defamation campaign, like the one being conducted now, would in a practical sense make settlement very unlikely. The only remaining option would be to have the case decided in court. It finally dawned on me that this might be exactly what the opponents of the lawsuit really wanted – the controversy may be the goal and not a means to an end. Perhaps we are dealing with some politically ambitious people who have set their sights on higher office.  

Moorehas long been known to be interested in being elected to the California Assembly. For that, he needs the Democratic nomination, and getting that would be impossible without the support of the Bates/Hancock machine, which prioritizes development. In supporting the controversial West Berkeley Plan, Moore burned his bridges with many of his District 2 constituents. The only way to go is up, and that must be done with the machine’s blessing. Anderson has been said to be interested in being Mayor, and there has been a longstanding rumor in District 8, that Schacht would like Wozniak’s seat when he retires.  

I may never know what motivates the people who seem to thrive on this controversy. The one thing I do know is that their motivations appear to be more self-serving than selfless, and that the only answer for a defamation campaign is to stand up and tell the truth, even if that means going all the way to trial.