Public Comment

Pay to Play in Berkeley – the Price of an Apology

By Judith Epstein, Ph.D.
Thursday June 30, 2011 - 08:39:00 AM

Last week, renowned preservation architect Todd Jersey issued an apology to the City of Berkeley for consulting with Concerned Library Users (CLU) in conjunction with our lawsuit against the City. Our lawsuit arose from the illegal use of Measure FF funds to demolish, rather than renovate, two branch libraries – contrary to the plain language of the measure. What Todd did not apologize for – and what he shouldn’t apologize for – was his excellent work, which proved that the City was wrong about the need to demolish the South and West Branch Libraries. 

While CLU was saddened to see Todd put in this position, we understand why he felt he had to make this gesture in order to compete for projects in the City of Berkeley and other municipalities in the future. I was probably the first person to warn Todd that City officials were maligning him and that he was probably going to be blackballed on City projects. Yes, this is illegal, but this is also the City of Berkeley, where the Council majority openly flaunts disobeying the law, and sometimes, only a lawsuit has a chance of stopping them. That was at the end of March, and by April 1st, Todd was able to confirm the story through his own contacts. I knew that telling Todd what I’d learned might affect his ability to continue to work with CLU, but it would have been unethical to withhold the information from him. 

In the months that followed, Todd became the object of anonymous, negative comments on Some were later traced back to Linda Schacht Gage, Capital Chair of the Berkeley Public Library Foundation and a possible candidate for the District 8 Council seat in 2014. Berkeley Daily Planet readers may remember my May 12th commentary, The Making of a Controversy, in which I described how Schacht Gage had approached me in Moe’s Books on October 6th, and 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.” What many people don’t know is that the Berkeley Public Library Foundation intervened in the lawsuit on behalf of the City a few months after that incident and that some of their members are responsible for many of the ugly rumors and lies surrounding this lawsuit. In fact, most members of the City Council are foundation members, and Council member Darryl Moore is a former member of its board. Last winter, the Council approved a resolution allowing its own members to use taxpayer-provided discretionary funds to buy expensive tickets to attend the foundation’s gala dinner in February. 

I’ve had people ask me why the lawsuit was never settled in its entirety. (There was a settlement on one cause of action in December.) My intuition is that the City and the foundation don’t want to settle. All three parties to the case – CLU, the City of Berkeley, and the Berkeley Public Library Foundation – had a case management meeting on May 31st. Alameda County Superior Court provides the option of mediation for cases on the way to trial, and we agreed to mediation, but the City and the foundation both declined. Our acceptance of the mediation option is consistent with the approach that we’ve followed since filing this lawsuit; we’ve been looking for creative solutions for the City’s illegal actions, because we support improving, renovating, and expanding our branch libraries. That’s why we consulted with Todd in the first place. 

Last winter, the City invited us to tour the South and West Branch Libraries. We brought Todd along to see if officials were telling the truth about demolition being the only option. Todd’s immediate impression was that he could find better solutions, while still preserving historic portions of these structures. He believed that a partial preservation option for the South Branch could be accomplished with substantial savings, because the City’s plan spent a considerable amount of money on constructing a new façade for the front of the building. A partial preservation plan that improved the existing façade would be far less expensive – not to mention greener. His ideas for the West Branch were consistent with the 2003 publicly-vetted plan for the building, which was abandoned when funding fell through. It is worth noting that the public, the City Council, the Landmarks Preservation Commission, and the Zoning Adjustments Board all approved of this plan. It had broad community support. Todd believed that a comparable design could be built for around the same amount of money the City was planning to spend on a new West Branch. We hired him on the spot. 

The City’s Environmental Impact Report later claimed that Todd’s designs were beyond the Measure FF budget, but Todd’s own calculations, which provided a range of expenses depending on materials, contradict this. We later submitted a letter from a professional cost estimator verifying Todd’s figures. 

After Todd’s apology, Moore made an odd statement hoping this might cause me to reconsider my actions. To be clear, I am not the Plaintiff. I don’t have the sole power to drop the lawsuit. I get only a single vote, but I don’t think anyone in CLU is impressed by this action. Members of the Berkeley Public Library Foundation have threatened us, and when that didn’t work they tried intimidating us. When that didn’t work, foundation members and City officials tried lying about us. Now they’ve turned to maligning an innocent person. There is an old saying that the definition of insanity is repeating the same act again and again and expecting a different outcome. We understand how ugly foundation members and City officials can make things for us. It’s just not a reason to drop the lawsuit, and each insult raises the bar for any possible settlement. For us, the road to a fair settlement would come through creative solutions and/or mediation. We’re not going to respond to bullying, but that’s the only tactic the City and the foundation seem to want to employ. As a result, we are prepared to go to trial. 

The one good thing about this latest episode is that now Todd Jersey will again have a chance to work for the City. Todd is an excellent architect, and we would all benefit from living in a city that featured his work. 

Dr. Judith Epstein is a member of Concerned Library Users, and she does not tolerate injustice very well.