Saturday, September 24, 2016

Suddenly, a Pension Shifting Paradigm?

California Watch

Suddenly, a Pension Shifting Paradigm?

Steven Greenhut for the American Spectator


September 22, 2016, 12:15 am

The public employee rich could be finding it harder to get richer at public expense.

Last month, I wrote a dour column for the Spectator doubting that a significant new appeals court decision in a major pension case would ultimately change the financial trajectory of our state’s pension systems. Bottom line: A court finally agreed that oversized pensions for public-sector workers could be cut going forward, just as is allowed in the private sector.
It was great news, given the so-called “California Rule” has left cities with no choice but to slash public services and raise taxes to pay pension benefits that typically are reserved for multimillionaires. (That’s no exaggeration. One would need millions of dollars in the bank to have a guaranteed six-figure, cost-of-living-adjusted salary for life.)
But unions here control almost everything and past experiences gives us little reason to think such a sane decision will survive its many hurdles. I stick with my pessimistic assessment, but in recent weeks, the cold, hard actuarial reality has set in as the state is being forced to spend such a significant amount of money to plug its gaping pension hole.
Even the mainstream media are noticing. On Sept. 17, the New York Times published a lengthy article about California’s ongoing pension woes, “A Sour Surprise for Public Pensions: Two Sets of Books.” It reported on a tiny pest-control district in the Southern California desert that serves a mere six people. The Citrus Pest Control District No. 2 was trying to convert its employees to a 401(k) plan from its existing defined-benefit plan and was slapped with a massive exit fee from the California Public Employees’ Retirement System, the nation’s largest state pension fund.
It turns out CalPERS, which managed the little pension plan, keeps two sets of books: the officially stated numbers, and another set that reflects the ‘market value’ of the pensions that people have earned. The second number is not publicly disclosed. And it typically paints a much more troubling picture, according to people who follow the money.
This “two sets of books” issue is significant. I reported on it in 2011, in fact. For the sake of public consumption, CalPERS says there’s little problem because it expects a rate of return on its investments of 7.5 percent (lowered from 7.75 percent). If it gets that return every year, there will be plenty of money to pay all the promises into the future. CalPERS says the public can rely on this “official” number, but its “market” statistics tell a more dismal story.
Here’s what I found in my 2011 Orange County Registercolumn:
When the taxpayer is backing up the entire liability for the pensions received by members of the California Public Employees Retirement System, then CalPERS officials are exuberant about the stock market. They insist that a predicted rate of return of 7.75 percent is perfectly realistic. When their own funds are on the line, however, CalPERS can be extremely conservative as it embraces one of the lowest annual return rates imaginable: 3.8 percent.
At the time, some cities were trying to exit the pension fund, just as the little pest-control district was trying to do in the New York Times profile. Here’s the Times:
CalPERS says it must bill departing governments for every penny their pensions could possibly cost because once they cash out, CalPERS has no way of going back and getting more money from them if something goes wrong.

Well, exactly. As I had opined, this second number proves pension critics have been right all along. When taxpayer money is on the line, CalPERS is a big spender. Only the finest and highest pension formulas will do for its public workers. They deserve it. Don’t worry. It will all pay for itself, which is what CalPERS argued in the Legislature when it was championing the 1999 pension legislation that started the ensuing pension-spiking spree.
But when its own money from its own investment pool is at stake, the agency suddenly gets very conservative. In 2011, it was using the 3.8-percent rate-of-return number. Lately, according to the Timesarticle, it is using a measly 2.56 percent rate of return. The lower the return, the higher the unfunded pension liabilities, or debt. Using the “official” numbers, CalPERS has a big debt problem. Using the “market” numbers it has a potential catastrophe on its hands.
Don’t expect the state’s coddled class of union workers to figure out what this means, but unless something dramatic changes, they might not get everything they were promised in their retirement years. On Tuesday, Service Employees International Union 1021 members “shut down the San Joaquin County Board of Supervisors evening work session on public safety, demanding higher wages,” according to a Stockton Record article. They’re unhappy with a 6 percent proposed raise over the next three years.
Here’s the rolling-on-the-floor-laughing moment. The lead union negotiator was quoted as follows: “The county has the money to solve this, but instead, they choose to put that money into its pension fund.” Well, yeah, the county has to put in money to prop up the underfunded pensions union workers will receive. It’s still going to their compensation. This county is home to Stockton, which recently emerged from a bankruptcy due in part to the garish pension formulas and “Lamborghini-style” health plan it gave to employees.
On Sept. 18, The Los Angeles Times published a CALmatters piece about the above-mentioned 1999 pension deal (S.B. 400) that retroactively increased pensions for the California Highway Patrol; the measure also gave a green light for agencies across California to do the exact same thing. I’ve been screaming about that ramrodded travesty for years, but recognition in the major media of the mess that bill caused is nevertheless encouraging.
“With the stroke of a pen, California Gov. Gray Davis signed legislation that gave prison guards, park rangers, Cal State professors and other state employees the kind of retirement security normally reserved for the wealthy,” according to the report.
Proponents sold the measure in 1999 with the promise that it would impose no new costs on California taxpayers.… They were off — by billions of dollars — and taxpayers will bear the consequences for decades to come. This year, state employee pensions will cost taxpayers $5.4 billion, according to the Department of Finance. That’s more than the state will spend on environmental protection, fighting wildfires and the emergency response to the drought combined.
And the state general fund’s contribution is a pittance (proportionally) compared to what it is doing to counties and cities. Many localities now face “service insolvency,” meaning they can pay their employees and retirees, but not offer much in the way of services.
Since passage of that fateful law, California has been engaged in an unparalleled effort to transfer as much private-sector wealth as possible to public-sector employees. There’s a reason cities open arenas to handle applicants for a handful of firefighting openings. Consider this new statistic from one Orange County suburb. The average compensation for a Costa Mesa firefighter: $241,000 a year. It’s typical and includes a guaranteed pension of 90 percent or more of their final pay beginning at age 50.
There’s a quasi-serious term called the “Viagra Effect.” Public employees are retiring at such early ages that many of them are hooking up with young new spouses. So if Bob the firefighter retires at 50 with a $225,000 a year payday and then marries 32-year-old Mary, the actuaries have to figure out how the taxpayer-backed system is going to pay that amount until Mary joins Bob in that big firehouse in the sky. CalPERS statistics, by the way, show that the best-pensioned employees (cops and firefighters) live the longest — well into their 80s.
I wish everyone a long and happy life and plenty of Viagra if needed, but it’s time that we, the taxpayer, stop getting screwed by all of this. I’m a little less dour than last month. When this greed mongering gets prominent coverage in such important mainstream sources, it seems likely the paradigm is shifting. Maybe there’s hope for ending the California Rule, after all.

Editor's Note:  Marinwood CSD has a huge underfunded pension problem today. Marinwood CSD director Jeff Naylor has spearheaded a drive to set aside money in a "irrevocable trust" to lessen total liability.  This sounds great but what happens if the pension rules change?  Our taxes will be gone forever and our liabilities for other necessities such as maintenance and capital improvements will be threatened.   

Friday, September 23, 2016

Modern Swing Bands

Naked Mike Rowe pulls a Shotgun to Shoot a Drone out of the Sky

Leave Me Adrone! 

Everybody has a reasonable expectation of privacy in their own homes.
Early this morning, deep in the middle of some sort of strange gardening dream, I was awakened by the sound of a giant bumble bee, hovering a few inches from my ear. As I slowly entered a more conscious state, I realized the sound was not coming from a bee in a dream, nor for that matter, a bee in reality. It was coming from something much larger, just outside my bedroom window.Dressed in my favorite pair of non-existent pajamas, I leapt from my bed and pulled the drapes aside. There, not three feet in front of me, was a camera, dangling from the underside of a drone. The red light was on, and the camera was rolling.
I was slow to react, partly because I was still waking up, and partly because my first instinct when confronted with a camera is to say something pithy. I can’t help it. I’ve been saying pithy things to cameras for the last thirty years, and old habits die hard. Well this morning, I had no words for the outrage I felt at such an intrusion. I was incensed, and as Freddy egged me on with a chorus of snarls and barks, I moved onto my second instinct - an irresistible urge to blow the contraption out of the sky.

Everybody has a reasonable expectation of privacy in their own homes.

Seconds later I’d pulled the Mossburg 12-guage from under my bed and grabbed the cellphone from the bedside table. In no time, I was out on the deck downstairs, about fifteen feet below the electronic Peeping Tom. The drone had moved even closer to my window. I could see the camera panning left to right, and I could hear my dog unleashing a level of indignation usually reserved for raccoons and feral cats. Somewhere, in the logical part of my brain, it occurred to me that nothing good can come from an angry B-list celebrity standing on his deck with no clothes and a loaded shotgun, but I was not really in touch at that moment with the logical part of my brain. I was focused only on the joy that would follow the roar of the Mossburg, and the satisfying sprinkle of cheap plastic that would rain down upon my deck in the aftermath. 

I pumped a shell into the chamber, enjoying the “crunch-crunch” sound that makes shotguns worth owning. I had a clear shot - nothing but blue sky above - and more than enough umbrage to justify the destruction I was about to unleash. But then, as I was literally squeezing the trigger, I saw the camera tilt down. It was pointed directly at me, and in that moment - I froze.

I’d like to tell you I stopped because I realized that discharging my weapon in such a fashion would be frowned on by the local constabulary. But really, what stopped me was the realization that somewhere nearby, a drone operator was staring at his monitor, pondering the image of a very naked guy with a very familiar face, pointing a shotgun into the lens of his Go Pro and looking every bit as crazy as Gary Busey and Nick Nolte at the nadir of their careers. I froze, because I could see the video that might very well appear on the local news, (with considerable blurring, naturally.) The same video that might soon appear on my mother’s computer screen, along with the headline - “Dirty Jobs Guy Totally Loses It - Gets Naked and Shoots Drone From San Francisco Skies.”

When the moment passed I put the shotgun down and reached for my phone instead, just as the wicked contrivance bugged out for the Wild Blue Yonder. The attached photo is all I have in the way of proof, and I hope to God that’s all the proof you’ll ever see. Because honestly, I have no idea who is in possession of the footage I’ve just described. Nor do I have any idea if it will appear in your news feeds later this week. I sincerely hope not, but I know it’s out there, and there isn’t much I can do about it but make sure - if the unthinkable occurs - that you can all say you heard it here first…


Editor's Note:   Although public figures surrender some privacy for fame, even they deserve privacy in their homes.  The real issue is the loss of privacy from government who can use the same technology to monitor us. 

Marinwood CSD meeting September 13, 2016


Someone is being mean to me on the Internet.

ACLU: Connecticut State Troopers Caught On Tape Fabricating Charges Against Protester

ACLU: Connecticut State Troopers Caught On Tape Fabricating Charges Against Protester

“Gotta cover our ass.”

C.J. Ciaramella|Sep. 21, 2016 9:15 am

One Friday evening last September, Connecticut resident Michael Picard was doing what he usually does: standing on a strip of grass by an Interstate onramp and protesting the government.

Picard, a local privacy activist, often protests police DUI checkpoints, which he believes are unconstitutional and a waste of money. That night he was holding a sign warning motorists of a DUI checkpoint farther up the road. Picard, like any good protester these days, also had a camera to document his interactions with police.

What he ended capturing on video is now at the center of a civil rights lawsuit filed Monday on Picard's behalf by the Connecticut ACLU against three state troopers, whom Picard claims illegally seized his camera and then conspired to fabricate charges against him. Unbeknownst to the officers, though, the camera was still recording.

According the lawsuit, Connecticut state trooper John Barone confronted Picard, saying he had received complaints from passing motorists that Picard, who also open-carries a handgun, was waving his gun in the air. (The ACLU says there were never any such complaints and that Picard kept his gun holstered at all times.) After claiming it was illegal for Picard to film him, Barone snatched the camera and put it on the roof of his police cruiser while he and other officers discussed what charges to hit Picard with.

"You want to punch a number on this either way?" Barone asked one of his supervising officers, police slang for opening an investigation and entering a case number. "Gotta cover our ass."

"We could hit him with reckless use of the highway by a pedestrian and creating a public disturbance," Sgt. John Jacobi suggested.

"And then we claim in backup we had multiple people who stopped to complain," Master Sgt. Patrick Torneo added later in the conversation. "They didn't want to stay and offer a statement, so we took our own course of action."

The officers ticketed Picard, returned his camera and gun, and told him to protest in another location. It took Picard more than a year to get the criminal charges against him dismissed.

In the lawsuit, the ACLU says the three state troopers retaliated against Picard, violating his First Amendment rights to protest and film the government, as well as his Fourth Amendment rights against unreasonable search and seizure.

"Community members like me have a right to film government officials doing their jobs in public, and we should be able to protest without fearing political retribution from law enforcement," Picard said in a statement. "As an advocate for free speech, I'm deeply disappointed that these police officers ignored my rights, particularly because two of the troopers involved were supervisors who should be setting an example for others. By seeking to hold these three police officers accountable, I hope that I can prevent the same thing from happening to someone else."

A spokesperson for the Connecticut State Police said the issue was subject to an ongoing investigation and declined to comment.

Thursday, September 22, 2016

Who should pay fines if coastal commissioners are found guilty of breaking rules? Them or taxpayers?

Who should pay fines if coastal commissioners are found guilty of breaking rules? Them or taxpayers?

The California Coastal Commission listens to comments during a hearing to decide on the Newport Banning Ranch development at Newport City Hall on Sept. 7, 2016. (Allen J. Schaben / Los Angeles Times)
Steve Lopez

Just when you thought it might not be possible, the California Coastal Commission story has gotten a little more interesting.

As reported by my colleague Dan Weikel, five commissioners have been sued by a San Diego nonprofit called Spotlight on Coastal Corruption.

And people accuse us of never covering good news.

Slapped with a lawsuit were Commissioners Steve Kinsey, the chairman, Wendy Mitchell, Erik Howell, Martha McClure and Mark Vargas.

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They have been accused of collectively violating disclosure laws not a few times, nor a few dozen times.
But 590 times over the last two years.
F-I-V-E H-U-N-D-R-E-D N-I-N-E-T-Y.

Lawsuit seeks millions in fines from 5 coastal commissioners, alleging 590 transparency violations

According to the claim, the commissioners repeatedly failed to file complete, comprehensive, timely reports on their private conversations — known as ex parte communications — with developers and others before voting on projects.

And here’s where it gets really interesting.

The suit was not filed against the California Coastal Commission, which is made up of 12 politically appointed commissioners and more than 100 staff members. It was filed against individual commissioners. If the court rules that there were violations, each could be fined a small fortune, ranging from hundreds of thousands of dollars to more than $1 million.

This raises more than a few questions, among them:

Who should pay for commissioners’ legal defense, and if fines are levied against them, who should pick up the tab — the commissioners or the taxpayer-funded Coastal Commission?

Kathryn Burton is one of the San Diego coast watchers who formed Spotlight on Coastal Corruption earlier this year, and she didn’t hesitate for an instant when I put those questions to her Tuesday afternoon.

“Oh, absolutely, the commissioners,” she said. “The public shouldn’t be picking up their legal bills or their fines when they weren’t following the law.”

Burton, a retired city attorney, said there could be no greater deterrent to rule-breaking in the future than to have commissioners on notice that misdeeds will cost them. And if the sued commissioners are found liable, it’s the commission itself — understaffed and underfunded for years — that would receive the fines as dictated by the Coastal Act.

“It’s a win-win,” Burton said.

Let me be clear that no wrongdoing has been proved, and even if it is, civil fines are not mandatory. Weikel reported that commissioners either refused to comment on the lawsuit or could not be reached. A Coastal Commission spokesperson said the matter is being reviewed by the state attorney general’s office.

Burton told me that she has kept an eye on coastal protection issues for years, but stepped up her scrutiny in February. That’s when commissioners whacked Executive Director Charles Lester, a man whose many supporters saw him as a defender of coastal protection rather than a pushover for developers.

Then came the L.A. Times investigations suggesting that some commissioners did not appear to be following the rules on ex parte communications.

Many of their reports on those meetings were only a couple of sentences long, despite the required comprehensive accounts. In one case, Vargas filed the briefest of reports on a meeting with U2 guitarist David Evans in Dublin before voting in favor of Evans’ massive five-mansion compound in Malibu.

When I began asking Vargas for more details about his meeting, he didn’t just refuse to answer. He refused to acknowledge that I was standing two feet away from him, asking questions.

In some cases, rather than write their own reports, commissioners turned in accounts provided by lobbyists. And in other cases, they missed filing deadlines by up to eight months.

“It was pretty eye-opening. They were just not following the law,” said Burton, whose nonprofit hired San Diego lawyer Cory Briggs. He used Times data and additional research to come up with the tallies.
I think they somehow just think they’re bigger than life.— Kathryn Burton, San Diego coast watcher

The lawsuit alleges that Vargas violated reporting requirements 150 times, followed by Kinsey (140), Mitchell (120), Howell (96) and McClure (82).

And those numbers are all based on known meetings. It’s not known whether commissioners failed to report additional meetings, but if this case goes to trial, those kinds of questions are sure to be asked.

“There’s a certain arrogance to it,” Burton said of the commissioners. “I think they somehow just think they’re bigger than life.”

Some commissioners did follow the law, Burton noted. Others, in her opinion, tried to “circumvent the law.”

So Burton and some like-minded San Diegans, including Gerald Sodomka and Susan Turney, formed their nonprofit. The purpose, she said, is to do whatever is possible to bring more transparency to the commission and protect the coast for future generations.

“Corruption might be a strong word,” Burton said, “but if the shoe fits, wear it.”

This lawsuit follows four others that were filed to challenge projects that got approved despite disclosure violations. If the San Diego group prevails on its lawsuit, there’s no telling how many others might follow.

Meanwhile, a minor stir was created this week involving the search for a new executive director. Activists complained that a draft copy of the job posting — subject to change — did not adequately address the need for the new executive director to maintain staff independence from commissioners, so as to base decisions on science and law, not political pressure.

Coast watchers also took issue with a line about how the new boss should have the ability to “instill a culture of customer service within the organization.”

“This is highly objectionable,” former Coastal Commissioner Sara Wan wrote to the staff, arguing that the commission does not have “customers,” and the agency’s job is not to facilitate developers.

The mission, she said, is to make sure any development is consistent with the law, to represent the public’s interest and to protect the coast.

I couldn’t have said it any better.

Lawsuit targets Kinsey for $1M in fines

Lawsuit targets Kinsey for $1M in fines 
Nonprofit accuses five members of violating laws on disclosure
By Dan Weikel

Los Angeles Times
A lawsuit served this month against five California Coastal Commission members — including Marin County Supervisor Steve Kinsey — could cost them millions of dollars in civil fines if the courts confirm hundreds of alleged transparency rule violations.
Spotlight on Coastal Corruption, a small nonprofit organization formed solely to pursue the allegations, filed the lawsuit in San Diego County Sup erior Court in mid-August against Commission Chairman Kinsey and commissioners Erik Howell, Martha McClure, Wendy Mitchell and Mark Vargas.
The suit, served at the panel’s meeting in Newport Beach on Sept. 7, accuses the commissioners of violating disclosure laws for so-called ex-parte communications a total of 590 times during the past two years. If the court finds widespread violations, each member could face hundreds of thousands of dollars in civil penalties.
At least four other lawsuits are challenging coastal development permits partly on the grounds that commissioners improperly disclosed their contacts, did not report them

on time or used the communications to hold a series of behind-the-scenes meetings before voting on a project.
In one case, an Orange County judge heavily criticized commissioners for incomplete disclosure forms.
The Spotlight suit, however, is apparently the first to seek fines against individual coastal commissioners.
“The Coastal Commission has gotten off track,” said Kathryn Burton, Spotlight’s president. “It needs to come back into compliance with the law and increase transparency as well as public accountability. Some commissioners are being very arrogant about the law.”
The defendants declined to discuss the case or could not be reached for comment. A Coastal Commission spokesperson said the state attorney general’s office is reviewing the matter.
Spotlight’s lawsuit is the latest development in an ongoing controversy about private ex-parte communications between commissioners and developers, lobbyists, environmentalists and anyone else with a stake in the decisions of the powerful land use agency.
In recent months, courts and the Los Angeles Times have scrutinized commissioners for failing to report ex-parte contacts, or disclosing them late or with little detail, in apparent violation of the statutory requirements.
Kinsey decided not to vote on a controversial proposal to build hundreds of new homes on open land overlooking the Newport and Huntington Beach shoreline on Sept. 7, because he had two unreported ex-partes related to the proposal.
Though Vargas had filed one ex-parte disclosure eight months late, he voted on the project after consulting with the agency’s general counsel.
Ex-parte communications can involve telephone calls, face-to-face meetings, emails or other written material related to a pending matter. The contacts are outside official public hearings.
Under state law, commissioners are required to report such interactions in writing within seven days of the communication. If expartes occur within a week of a commission meeting where the subject matter is on the agenda, they must be disclosed orally from the dais at the hearing.
The reports have to include the date, time, type and location of the communication as well as the identities of everyone who initiated the communication and participated in it.
Commissioners are further required to provide a comprehensive description of the content of their exparte contacts, including all text and graphic material if any was presented in the course of the communication.
Finally, the disclosures must be placed into the commission’s official record so the public can review them.
Commissioners also are prohibited by law from influencing a decision if they knowingly fail to report exparte contacts related to the matter.
Each violation of the disclosure requirements carries a maximum fine of $7,500. The lawsuit asserts that the five commissioners are subject to additional fines of $30,000 for each disclosure violation because such violations are considered separate offenses under the state’s Public Resources Code.
Cory Briggs, the attorney for Spotlight on Coastal Corruption, said the group analyzed all written and oral ex-parte reports made by the commission’s 12 voting members between January 2015 and August 2016.
Spotlight decided to sue Howell, Kinsey, McClure, Mitchell and Vargas because they appeared to have the most alleged violations, Briggs said. The lawsuit charges that Kinsey violated reporting requirements at least 140 times, Howell 96 times, Mc-Clure 82 times, Mitchell 120 times and Vargas 150 times.
If all the alleged violations are sustained, Kinsey faces a fine of up to $1,050,000; Howell, $720,000; McClure, $630,000; Mitchell, $900,000; and Vargas, $1,125,000, court records state.
Briggs said many of the written disclosures in question lacked comprehensive descriptions of the communication. Others allegedly failed to meet required deadlines by a few days to eight months while eight ex-partes were never disclosed, the lawsuit states.
The oral reports, Briggs said, were brief, averaging about 20 to 30 seconds, not enough time to provide a meaningful disclosure. In some cases, commissioners said only that their exparte contact “was similar” or “substantially similar” to the oral report of a fellow commissioner given earlier.
The suit, Briggs said, focuses only on significant violations. “We are not seeking penalties for the lack of a signature.”
The lawsuit alleges that the violations were deliberate because the commissioners received training about ex-parte disclosure requirements. Agency officials say the instruction occurs at commission orientations and periodically during presentations by the chief counsel at public meetings.
“Nonetheless, defendants consciously disregarded the requirements of (the law) based on an arrogant, corrupt belief that their ex-parte conversations were none of the public’s business, at times using personal email to conceal the conversations,” the lawsuit states. “Defendants’ repeated violations were not innocent oversights.”
Earlier this month, California lawmakers, under pressure from pro-development interests, defeated a bill that would have prohibited ex-parte communications by commissioners.

Speaking at public meetings

Speaking at public meetings

A citizen feels strongly about an issue in the community. He or she attends a city council meeting to voice those concerns. Unfortunately, the powers that be prohibit the citizen from addressing the controversial topic. Have the citizen’s First Amendment rights been violated?
Such a scenario is not a product of a healthy imagination. It is a daily reality for countless citizens across the country.
Sometimes government officials need to silence disruptive citizens or to prohibit endless repetition. However, other times the officials may be squelching citizen speech because they want to suppress the message. This article seeks to explain the legal parameters surrounding the regulation of citizen speech.
Many government meetings are open to the public and reserve a “public comment” time for citizen commentary on issues. The 9th U.S. Circuit Court of Appeals explained in its 1990 decision White v. City of Norwalk: “Citizens have an enormous First Amendment interest in directing speech about public issues to those who govern their city.” These meetings, particularly the “public comment” period, are at the very least a limited public forum during which free-speech rights receive heightened protection.
Types of public forums
In First Amendment jurisprudence, government property that has by tradition or by government operation served as a place for public expression is called a traditional public forum or a limited public forum. In a traditional public forum, such as a public street, speech receives the most protection and the government generally must allow nearly all types of speech. Restrictions on speech based on content (called content-based restrictions) are presumptively unconstitutional in a traditional public forum. This means that the government can justify them only by showing that it has a compelling state interest in imposing them, and that it has done so in a very narrowly tailored way.
At limited or designated public forums, however, the government designates certain types of subject matter. One court explained as follows: “After the government has created a designated public forum, setting boundaries on classes of speakers or topics, designated public fora are treated like traditional public fora.” This again means that content-based exclusions face a high constitutional hurdle. Even in nonpublic forums, restrictions on speech must be reasonable and viewpoint-neutral.
One must be careful in discussing the public-forum doctrine, because courts do not apply the doctrine with consistency. For example, some courts equate a limited public forum with a designated public forum. Other courts distinguish between the two, as a 2001 federal district court in Pennsylvania did in Zapach v. Dismuke. That court noted that “there is some uncertainty whether limited public fora are a subset of designated public fora or a type of nonpublic fora.”
Just because something is called a public forum doesn’t guarantee a person unfettered freedom to utter whatever is on his mind. Public bodies can limit their meetings to specified subject matters. Also, the government may impose reasonable time, place and manner restrictions on speech as long as those restrictions are content-neutral and are narrowly tailored to serve a significant government interest.
In other words, the government could impose a 15-minute time limit on all participants as long as it did not selectively apply the rule to certain speakers. Council members would violate the First Amendment if they allowed speakers with whom they agreed to speak a full 15 minutes, but allowed speakers they did not agree with to speak for only five minutes.
It bears stressing that First Amendment rights are not absolute during public-comment periods of open meetings. Speakers can be silenced if they are disruptive. Disruption has been defined to include far more than noisiness and interference. For example, a federal district court in Ohio wrote in Luckett v. City of Grand Prairie (2001) that “being disruptive is not confined to physical violence or conduct, but also encompasses any type of conduct that seriously violates rules of procedure that the council has established to government conduct at its meetings.”
“A speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extending discussion of irrelevancies,” the 9th Circuit wrote in White v. City of Norwalk. “The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner. Indeed, such conduct may interfere with the rights of other speakers.”
Unfortunately, many situations arise in which citizens are silenced because of the content of their speech or because they have disagreed previously with a government official. This raises the specter of censorship. Government officials may not silence speech because it criticizes them. They may not open a “public comment” period up to other topics and then carefully pick and choose which topics they want to hear. They may not even silence someone because they consider him a gadfly or a troublemaker.
In City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, (1976) the U.S. Supreme Court said in a collective-bargaining dispute case arising out of teachers’ speaking at a board of education meeting:
“Regardless of the extent to which the true contract negotiations between a public body and its employees may be regulated — an issue we need not consider at this time — the participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.”
A federal district court in Pennsylvania explained in the 1993 decisionWilkinson v. Bensalem Township: “Allowing the state to restrict a person’s right to speak based on their identity could quickly lead to the censorship of particular points of view.”
An Ohio appeals court refused to dismiss the lawsuit of an individual who sued city officials after being thrown out of a city commission meeting for wearing a ninja mask. In City of Dayton v. Esrati (1997), the Ohio appeals court reasoned that the individual wore the mask to convey his dissatisfaction with the commission. “The public nature of the legislative process and the right of citizens to participate in and voice their opinions about that process are at the heart of democratic government,” the court wrote. “The government may not impose viewpoint-based restrictions on expression in a limited public forum unless those restrictions serve a compelling state interest and are narrowly drawn to achieve that end.”
Other issues
Courts have also been wary of laws, rules or regulations that prohibit criticism or personal attacks against government officials. A federal district court in California invalidated a school district bylaw that prohibited people at school board meetings from criticizing school district employees. In Leventhal v. Vista Unified School District (1997), the court wrote: “It seems clear that the Bylaw’s prohibition on criticism of District employees is a content-based regulation. … It is equally clear that the District’s concerns and interests in proscribing public commentary cannot outweigh the public’s fundamental right to engage in robust public discourse on school issues.”
Similarly, a federal district court in Virginia struck down a school board bylaw that prohibited personal attacks during public comments at meetings. (SeeBach v. School Board of the City of Virginia Beach, 2001.)
However, a higher court – the 4th U.S. Circuit Court of Appeals – questioned the reasoning of the federal district court decision in Bach. In Steinburg v. Chesterfield County Planning Commission, the 4th Circuit wrote: “We conclude that a content-neutral policy against personal attacks is not facially unconstitutional insofar as it is adopted and employed to serve the legitimate public interest in a limited forum of decorum and order.” The appeals court reasoned that the policy was content-neutral, as people could still present their viewpoints and messages disagreeing with certain policies without resorting to personal attacks.
Another kind of restriction on citizen speech at public meetings involves residency. One federal appeals court determined that a city council rule prohibiting nonresidents from addressing the city council was constitutional. InRowe v. City of Cocoa (2004), a three-judge panel of the 4th Circuit determined that a resident rule was reasonable and viewpoint neutral. “A bona fide residency requirement … does not restrict speech based on a speaker’s viewpoint but instead restricts speech at meetings on the basis of residency.”
When a government decides to offer a “public comment” period at an open meeting, it provides that citizens may exercise their First Amendment rights. Government officials can limit comments to the relevant subject matter, control disruptive or overly repetitive speakers and impose reasonable time, place and manner restrictions on speech. However, when government officials create a public-comment forum, they have created a limited public forum in which greater free-speech protections apply. The government may not silence speakers on the basis of their viewpoint or the content of their speech. The government must treat similarly situated speakers similarly. In essence, the government must live up to the values embodied in the First Amendment.

Wednesday, September 21, 2016

Marin Urban Pipeline Projects

Editor's Note: This was sent to me by a supporter and is incomplete, especially in Marinwood Lucas Valley where an addition 700 + units are now being considered.  At St. Vincents/Silveira Ranch, they are proposing 224 units of affordable and market rate housing but have keep their progress from public view.  Former Marin Supervisor Gary Giacomini is involved with the project.

Venezuela: Over 15% of People Eat Garbage to Survive

Venezuela: Over 15% of People Eat Garbage to Survive

AP Photo/Fernando Llano

by FRANCES MARTEL18 Sep 20161,045

A new study finds Venezuela on the brink of famine, with an alarming fifteen percent of citizens saying they can only feed themselves with “food waste discarded by commercial establishments,” while nearly half say they have had to take time off work to search for food.

The study — conducted by More Consulting and published in the Spanish-language Diario de las Américas — reflects a reality that has become the signature of President Nicolás Maduro’s tenure: a food and medicine shortage that forces most in the nation to wait in supermarket lines that can last up to eight hours. On many occasions, after the wait, they find that there is nothing left to buy.

The More Consulting study found that three out of every four Venezuelans (72 percent) was unable to feed themselves an optimal diet of breakfast, lunch, and dinner. 24.2 percent say they rarely eat protein, living off of local tubers like yuca and malanga and some fruit. More than half of Venezuelans (52.3 percent) buy their foods through the black market, from private individuals who have stocked a surplus of an item they need.

53.9 percent of Venezuelan respondents said they had gone to bed hungry, 48 percent say they have been forced to take time off work to scrounge for food.

The numbers align with previous surveys taken earlier this year, following the declaration of a “nutritional emergency” by the Venezuelan National Assembly in February. In June, The New York Times cited a poll by Simón Bolívar University finding that nearly 90 percent of Venezuelans did not have the money necessary to buy food for three full meals a day. The Times estimated then that an average of 50 violent incidents involving supermarkets, food cargo trucks, or other food sources had occurred within a two-week span of time.

President Maduro implemented a socialist ration system in April 2014, in which Venezuelans were prohibited from buying more than their rations books allowed, even when the nation’s bolivar currency was not struggling with the current 700 percent estimated inflation rate. Today, Maduro has ordered police and military units to crack down on anyone attempting to buy more than their allotted rations, hoarding food, or waiting outside a supermarket during hours in which the store is not open.

According to the Washington Post, Venezuelan police have arrested “at least 9,400 people this year for allegedly breaking laws against hoarding, reselling goods or attempting to stand in line outside normal store hours.” To make the arrests more efficient, the police have used a bus that drives from market to market in the early morning hours, looking for loiterers. Anyone found attempting to wait overnight in front of a supermarket is arrested.

Maduro has also ordered the military to control the nation’s food supply and created Socialist Party committees known as Local Committees for Supply and Production (CLAP) to designate who in each neighborhood receives food. Opposition members have accused CLAP leaders of discriminating with food supplies against those who have publicly opposed the government.

Maduro himself has appeared little at ease in public regarding the impending famine in his country. Earlier this week, Maduro made a joke using the country’s new euphemism for starvation, “Maduro’s diet,” telling a Socialist Party member on live television that his diet “makes you hard, no need for Viagra!”

When appearing at public events, however, Maduro has been increasingly targeted by hungry protesters. During a visit to the island of Margarita earlier this month, a mob surrounded Maduro, banging pots and pans in his face and yelling, “We are hungry!

Maduro has had to crack down on Margarita island as it is currently hosting the summit for the Non-Aligned Movement nations, described by the Pan-American Post as a group of “120 member countries across all continents that do not align themselves with or against any major power bloc.” Despite the group’s size, this year’s summit is proving significantly unpopular. The only heads of state currently slated to attend are Zimbabwe’s Robert Mugabe, Cuba’s Raúl Castro, Bolivia’s Evo Morales, Ecuador’s Rafael Correa, and Iran’s Hassan Rouhani.

Demo for Democracy - uphold the Brexit vote

Brits take back their democracy.

Tuesday, September 20, 2016

A beginner’s guide to socialist economics

A beginner’s guide to socialist economics

By Marian L. Tupy

In recent years, I have given a number of presentations to high-school and college students on the importance of economic freedom and persistent threat of socialism – as witnessed, for example, by the recent economic meltdown in Venezuela. One problem that I have encountered is that young people today do not have a personal memory of the Cold War, let alone an understanding of social and economic arrangements in the Soviet bloc, which, I suspect are either downplayed or ignored in American school curricula. As a result, I have written a basic guide to socialist economics, drawing on my personal experience growing up under communism. I hope that this – somewhat longer piece – will be read by the millennials, who are so often drawn to failed ideas of yore.

As a boy growing up in communist Czechoslovakia, I would, for many years, walk by a building site that was to become a local public health facility or clinic. The construction of this small and ugly square-shaped building was slow and shoddy. Parts of the structure were falling apart even while the rest of it was still being built.

Recently, I returned to Slovakia. One day, while driving through the capital of Bratislava, I noticed a brand new suburb that covered a hill that was barren a mere two years before. The sprawling development of modern and beautiful houses came with excellent roads and a large supermarket. It provided a home, privacy, and safety for hundreds of families.

How was it possible for a private company to plan, build, and sell an entire suburb in less than two years, but impossible for a communist central planner to build one small building in almost a decade?

A large part of the answer lies in “incentives.” The company that built the suburb in Slovakia did not do so out of love for humanity. The company did so, because its owners (i.e., shareholders or capitalists) wanted to make a profit. As Adam Smith, the founding father of economics, wrote in 1776, “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.”

In a normally functioning market, it is rare for only one company to provide a certain kind of good or service. The people who bought the houses in the suburb that I saw did not have to do so. They could have bought different houses built by different developers in different parts of town at different prices. Competition, in other words, forces capitalists to come up with better and cheaper products – a process that benefits us all.

Communists opposed both profit and competition. They saw profit-making as useless and immoral. In their view, capitalists did not work in the conventional sense. The real work of building the bridges and plowing the fields was done by the workers. The capitalists simply pocketed the company’s profits once the workers’ wages have been paid out. Put differently, communist believed that the capitalist class exploited the working class – and that was incompatible with the communist goal of a classless and egalitarian society.

But capitalists are neither useless nor immoral. For example, capitalists often invest in new technologies. Companies that have revolutionized our lives, like Apple and Microsoft, received their initial funding from private investors. Because their own money is on the line, capitalists tend to be much better at spotting good investment opportunities than government bureaucrats. That is why capitalist economies, not communist ones, are the leaders in technological innovation and progress.

Moreover, by investing in new technologies and by creating new companies, capitalists provide consumers with a mind-boggling variety of goods and services, create employment for billions of people, and contribute trillions of dollars in tax revenue. Of course, all investment involves at least some level of risk. Capitalists reap huge profits only when they invest wisely. When they make bad investments, capitalists often face financial ruin.

Unfortunately, communists did not share the above views and banned private investment, private property, risk-taking and profit-making. All large privately held enterprises, like shoe factories and steel mills, were nationalized. A vast majority of small privately held enterprises, like convenience stores and family farms, were also taken over by the state. The expropriated owners seldom received any compensation. Everyone now became a worker and everyone worked for the state.

In order to prevent new income inequalities and new classes from emerging, everyone was paid more-or-less equally. That proved to be a major problem. Since people did not make more money when they worked harder, few of them worked hard. The communists tried to motivate or incentivize the workforce through propaganda. Posters of strong and determined workers were ubiquitous throughout the former Soviet empire. Movies about hardworking miners and farmers were supposed to instill the population with socialist zeal.Propaganda alone could not increase the productivity of communist workers to Western levels. To incentivize the workforce, communist regimes resorted to terror. Workers who slacked off on the job were sometimes convicted of sabotage and shot. More often, they were sent to the Gulag – a system of forced labor camps. Sometimes, the authorities arrested and punished completely innocent people on purpose. Arbitrary terror, the communists believed, made the rest of the workforce more productive.

In the end, tens of millions of people in the Soviet Union, China, Cambodia, and other communist countries were sent to labor camps. The living and working conditions in the camps were inhuman and millions of people perished. My great uncle, who was accused and convicted of being a supporter of the underground democratic opposition in communist Czechoslovakia, was sent to mine uranium for the Soviet nuclear arms program. Working without any protection from radiation, he died of cancer.

By the late 1980s, communist regimes lost much of their revolutionary zeal. Terror and fear subsided, and productivity declined further. Thus, in the late 1980s, an average industrial worker in Western Europe was almost eight times as productive as his Polish counterpart. Put differently, in the same time and with the same resources that a Polish worker needed to produce $1 worth of goods, a Western European worker could produce $8 worth of goods.

Just as they replaced the profit motive with propaganda and terror, so the communists replaced competition with monopolistic production. Under capitalism, companies compete for customers by slashing prices and improving quality. Thus, a teenager today can choose between jeans made by Diesel, Guess, Calvin Klein, Levi’s and many others.

Communists thought that such competition was both wasteful and irrational. Instead, communist countries tended to have one monopolistic producer of cars, shoes, washing machines, etc. But, problems soon arose. Since producers in communist countries did not have to compete against anyone, they did not have any incentive to improve their products. Compare, for example, the BMW 850 that went into production in West Germany in 1989 and the Trabant that was made in East Germany at the same time.Communist producers were protected from domestic competition by having a monopoly. They were also protected from foreign competition by prohibitively high import tariffs or an outright ban on imports. Put differently, they had a “captive” consumer base. The Trabant car manufacturer did not have to worry about losing consumers, since the latter had nowhere else to go.

Moreover, the workers at the Trabant car plant received the same salary irrespective of the number of cars they produced. As a result, they produced fewer cars than were needed. People in East Germany had to wait for many years, sometimes decades, before they were able to buy one. Indeed, shortages of most consumer goods, from important items such as cars to mundane items such as sugar, were ubiquitous. Endless queuing became a part of everyday life.

Under capitalism, shortages are generally avoided through the movement of prices. Some prices, like those of national currencies traded globally, change virtually every second. Other prices change more slowly. If there is a shortage of strawberries, for example, their price will rise. As a result, fewer people will be able to buy strawberries. On the upside, the people who value strawberries the most and are willing to pay the higher price will always find them.

The movement of prices provides important information for the capitalists. Capitalists take their money and invest it in more profitable business ventures. If the price of something is rising, not enough of it is being produced. Investors rush in with new capital, hoping to make a profit. Production increases. The economy as a whole thus tends toward an “equilibrium” or a point at which capital is distributed roughly where it is needed.Prices are an important source of information, but where do they come from? In a capitalist economy, nobody sets prices. They emerge “spontaneously” in the market place. Every time I buy a cup of coffee on the way to work, for example, I incrementally increase the price of the coffee bean. Every time I fail to buy my usual morning cup of coffee because I am late for work, I decrease its price by a tiny amount. If everyone stopped buying coffee, its price would collapse.

Communists banned profit, capitalists, competition, free trade and much (if not all) private property – all of which are necessary for accurate prices to emerge. Instead, tens of millions of prices for items ranging from tractors to a loaf of bread were set annually (or every few years) by government bureaucrats. Since they could neither accurately predict how much bread would be produced (i.e., supplied) nor how much bread would be consumed (i.e., demanded), the bureaucrats almost always got the prices wrong.

Price-setting made shortages associated with low productivity worse. If the price of flour was set too high, bakeries would bake too little bread and bread would disappear from shops altogether. If the price of flour was set too low, too much bread would be baked and much of it would end up rotten. Put differently, communist economies were very inefficient.

To complicate matters, communists sometimes mispriced items intentionally. The price of meat, for example, was kept too low year after year out of political considerations. Low prices created an impression of affordability. On their trips abroad, communist officials would often boast that the workers in the Soviet empire could buy more meat and other produce than their Western counterparts. In reality, shops were often empty. As a consequence, money was of limited use. To get around shortages, many people in communist countries resorted to bartering goods and favors (or services).

Under communism, the state owned all production facilities, such as factories, shops and farms. In order to have something to trade with one another, people first had to “steal” from the state. A butcher, for example, stole meat and exchanged it for vegetables that the greengrocer stole. The process was inefficient, but it was also morally corrupting. Lying and stealing became widely used and trust between people declined. Far from fostering brotherhood between people, communism made everyone suspicious and resentful.Of course, not everyone was equally affected by shortages. Government officials and their families could generally avoid the daily hardships of life under communism by having access to special shops, schools, and hospitals. Communism started as a movement for greater equality. In reality, it was a return to feudalism. Like feudal societies, communist societies had an aristocracy composed of the communist party members. Like feudal societies, communist societies had a population of serfs with limited or no rights and little possibility of social mobility. Like feudal societies, communist societies were held together by brute force.


I am sometimes asked why, if communism was so inefficient, it had survived as long as it did. Part of the reason rests in the brute force with which the communists kept themselves in power. Part of it rests in the emergence of smugglers, who made the economy run more smoothly. When, for example, a communist shoe factory ran out of glue, the factory manager called his contact in the “shadow” or “underground” economy. The latter would then obtain the glue by smuggling it out of the glue factory or from abroad. Smuggling was illegal, of course, but it was preferable to dealing with the government bureaucracy – which could take years. So, in a sense, communism’s longevity can be ascribed to the emergence of a quasi-market in goods a favors (or services).