From: Michael Boyd [mailto:michaelboyd@sbcglobal.net]
Sent: Thursday, January 19, 2012 12:01 AM
To: Boyd, Karen; Flores-Medina, Arlette
Cc: Laden, Vicki (CAO); occupyoakland@googlegroups.com; meshairizarry@gmail.com; facilitation@occupyoakland.org; LCohen@oaklandnet.com; Office of the Mayor ; Kaplan, Rebecca ; Reid, Larry ; Brooks, Desley ; De La Fuente, Ignacio; Schaaf, Libby; Nadel, Nancy ; PKernigan@oaklandnet.com; Brunner, Jane ; JRusso@oaklandcityattorney.org; swalter@baycitizen.org; SF Bay View; Phil Horne; Lynne Brown; meshaidrissstelleymom
Subject: Follow-up to Response to Notice to Correct or Cure 11/9/2011 Violations of the Ralph M. Brown Open Meeting Act
| Dear Mayor and City Council Members,This is to follow up on the City’s failure to respond to my Notice to Correct or Cure 11/9/2011 Violations of the Ralph M. Brown Open Meeting Act that I provided on 11/20/2011 to the Mayor and Council. Also I sent it to aflores@oaklandcityattorney.org
In response to my Notice to Correct or Cure Karen Boyd sent me an e-mail on 12/9/2011 stating ” You told me you were seeking a City Council agenda for that November 9 “meeting”… Press conferences are exempt from the Brown Act under 54952.2 (c)2, and therefore there is no agenda. Furthermore, the notice and subsequent removal of the encampment was ordered by the City Administrator under her City Charter powers and not by the City Council. ” I contacted the California First Amendment Coalition [see e-mail below]. Katherine Keating contacted me today. Here statement in regards to the the Press Conference is So again I respectfully request you place this item on your agenda to rescind the unlawful actions taken at and subsequent to the 11/9/2011 meeting in violation of the Brown Act. I ask the items be placed on your agenda in two weeks so I can have ample notice to attend. In case you still do not believe I am even entitled to a hearing before the Council I wish to advise you that I have ample information now regarding your knowingly violating the California Public Records Act in your 12/9/2011 e-mail from Ms. Boyd where you lie stating Instructions for 1600 OO emails: You need to have MS Outlook version 2003 or better to open the .PST file. You need to down load the file on this link to your local drive and it will take a while so it is best to use a broadband connection since then your speed is limited to the server where the file is saved. My broadband connection takes 5 minutes to download this 182 MByte file. Link: http:/www.calfree.com/OaklandLocalProduced162012.pst Respectfully, Michael E. Boyd President, — On Wed, 1/18/12, Keating, Katherine <katherine.keating@bryancave.com> wrote: From: Keating, Katherine <katherine.keating@bryancave.com> You are welcome to share the e-mail string, but please make it clear that Bryan Cave is providing general information on behalf of the First Amendment Coalition and is not representing you personally. Thanks!
From: Michael Boyd [mailto:michaelboyd@sbcglobal.net] Katherine, Thanks. Can I send this to the City of Oakland ?? MB-CARE — On Wed, 1/18/12, Keating, Katherine <katherine.keating@bryancave.com> wrote: From: Keating, Katherine <katherine.keating@bryancave.com> Dear Mr. Boyd: Byran Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. Thank you for bringing this interesting issue to our attention. The Brown Act provides that (most relevant language in blue): (a) As used in this chapter, “meeting” means any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body. (b) (1) A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body. (2) Paragraph (1) shall not be construed as preventing an employee or official of a local agency, from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body. (c) Nothing in this section shall impose the requirements of this chapter upon any of the following: (1) Individual contacts or conversations between a member of a legislative body and any other person that do not violate subdivision (b). (2) The attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering at which the organizers have required other participants or registrants to pay fees or charges as a condition of attendance. (3) The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (4) The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency, or at an open and noticed meeting of a legislative body of another local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (5) The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (6) The attendance of a majority of the members of a legislative body at an open and noticed meeting of a standing committee of that body, provided that the members of the legislative body who are not members of the standing committee attend only as observers. Gov’t Code § 54952.2. The first question, then, is whether there was a “congregation of a majority of the members of a legislative body at the same time and location …to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” Gov’t Code § 54952.2(a). It is clear that a majority of the council could not avoid the requirements of the Brown Act by simply labeling the event at which they convene as a press conference. But the Brown Act does allow the majority of members of a legislative body to be at the same place and time, as long as they do not hear, discuss, deliberate, or take action on any item within the body’s subject matter jurisdiction. It sounds like the city is taking the position that there was no hearing, discussion, deliberation, or action taken on any item within the subject matter of the council. There may be room to debate whether or not this happened. For example, you might argue that a majority of members of the body shouting “Occupy Oakland Must Go” constitutes a discussion or even a decision as to a course of action to be taken with respect to the protest. With respect to the reference to “the council majority ha[ving] come to a consensus over the fate of the camp,” as long as this consensus was reached at a properly noticed meeting that complied with the Brown Act, the mere presence of the council members at the press conference where that consensus was referenced by a third party might not violate the Brown Act. If the consensus was reached at the press conference, however, that would seem problematic. Even if the consensus was not reached at the press conference, it sounds like you have reason to believe that it may have been reached informally outside of Brown Act-compliant meetings. That would also be a problem. I hope this information helps. Good luck! Sincerely, Katherine Keating Please note that Holme Roberts & Owen LLP has combined with Bryan Cave LLP as of January 1, 2012 and my new email address is katherine.keating@bryancave.com ________________________________ From: Michael Boyd [mailto:michaelboyd@sbcglobal.net] Michael Boyd This First Amendment right is not applicable for the Government, whether it is a member of the City Council, the Mayor, or even the police; none of them have any right to free speech nor the right to assemble. These rights are reserved for The People of the State of California by State statute and the State Constitution as well as federal statute, and the US Constitution including the Bill of Rights which includes the First Amendment. Under California law, the Ralph M. Brown Open Meeting Act [“Brown Act”] establishes the basic requirements for open meetings and notice of meetings of the City Council and Mayor (§54952(b)). Agendas for meetings and hearings before the Oakland council must be posted in a location that is freely accessible to members of the public 72 hours prior to a regular meeting. However, where other acts lack specific procedures, the requirements of the Brown Act provide the minimum requirements for notice and hearing (§54950 et seq.). On November 9, 2011 according to the Oakland Tribune “Occupy Oakland At one point, the business leaders and council members, who along with According to this same article Oakland Mayor Quan then authorized this unlawful decision to leave immediately.” This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act, California Codes Government Code Section 54950-54963, in that proper written notice was not provided to a regular meeting of the City Council of Oakland . In response to my notice the City Administrator Karen Boyd states by e-mail on Dec 9th 2011. ”In a conversation we had by telephone yesterday where I sought clarification of this portion of your request, you told me that you were alleging that the news conference hosted by City Council President Larry Reid on November 9 included a quorum of the City Council, and you stated that this represented a meeting that was not properly noticed. You told me you were seeking a City Council agenda for that November 9 “meeting” where the Notice of Violations and Demand to Cease Violations would have been discussed and the Council would have taken action…Press conferences are exempt from the Brown Act under 54952.2 (c)2, and therefore there is no agenda. Furthermore, the notice and subsequent removal of the encampment was ordered by the City Administrator under her City Charter powers and not by the City Council. Therefore the documents you described in our telephone conversation do not exist.” Please confirm who is correct the City Administrator or me? Is this meeting and subsequent actions taken in response to that meeting in violation of the Brown Act? Federal Tax Advice Disclaimer – We are required by U. S. Treasury Regulations to inform you that, to the extent this message includes any federal tax advice, this message is not intended or written by the sender to be used, and cannot be used, for the purpose of avoiding federal tax penalties. |
Dear Occupy Oakland,
The City of Oakland has produced a large number of e-mails and scanned documents on the unlawful removal of Occupy Oakland protestors after the unlawful meeting on November 9, 2011 of the Oakland City Council at Lake Merritt.
I am challenging the action taken by the five members who constituted a quorum of the City Council who took unlawful action by voting 5-0-0 that “Occupy Oakland Must Go”. It is the action taken which would have required the 72 hours notice and an agenda be posted in advance of actions being taken not the press conference itself that is being challenged.
Once I retrieve the thumb drive containing this information I would like to have help posting the contents on the Occupy Oakland website. If some one could let me know how to do this it would be appreciated.
Mike Boyd-CARE
E-mails with City Staff
From: Laden, Vicki (CAO) <vladen@oaklandnet.com>*
Subject: Public Records Act requests
To: michaelboyd@sbcglobal.net
Date: Thursday, January 12, 2012, 11:11 AM
Michael,
A thumb drive and small stack of documents will be available for pick-up by 1 p.m. at the City Administrator’s Office, on the 3rd floor of City Hall. It will be at the reception desk. It is being produced to satisfy your request for docs re the eviction notice on 11/11.
The City is currently doing a search for all docs and emails to and from Frazier beginning 8/1/ to the present. This will satisfy your request regarding PERF/Frazier.
Please let me know if this does not reflect our agreement.
Vicki Laden
238-4941
From: noreply@oakland.net <noreply@oakland.net>
Subject: Public Records Request Received
To: michaelboyd@sbcglobal.net
Date: Sunday, January 8, 2012, 2:31 PM
Your disclosure request submitted 1/8/2012 2:31:22 PM has been recieved by our automated system. To reference this request please use the identifier 8009 when contacting us.
Thank you.
****
Follow-up to Final Response to Public Records Request #7551
Dear Oakland Mayor and City Council,
This is a follow up to the e-mail communication I received from the City Administrators Office, Karen Boyd sent to me on December 9, 2011 subject Re: Final Response to Public Records Request #7551”
In response to my original Public Records Request #7551 regarding the “Police Executive Research Forum” the City states the “City Administrator’s Office does not possess any records regarding a PERF-coordinated November 10 conference call”. A January 4, 2012 article by The Bay Citizen Concerns Raised About Occupy Oakland Investigative Team, Former OPD consultant leads investigation, it states regarding a PERF member [a former president of the board of directors] who was acting as a consultant for OPD at that time.
“The city announced on Dec. 21, 2011 that Thomas Frazier, a former Baltimore police commissioner, will head up a team of four to investigate how police officials handled themselves….Occupiers are concerned over Frazier’s former ties to the Police Executive Research Forum, a non-profit law enforcement organization that facilitated two conference calls with police departments nationwide in how to handle Occupy protests; Frazier was a former president of the board of directors.” [Source: The Bay Citizen (http://s.tt/1561p)]
This is my second and final request for the City of Oakland to produce any records in your possession regarding the Police Executive Research Forum including your communications with any current and/or former members of such; including Mr. Thomas Frazier.
Respectfully,
Michael E. Boyd
From: Michael Boyd <michaelboyd@sbcglobal.net>
Subject: Re: Final Response to Public Records Request #7551 NOT TO: Notice to Correct or Cure Violations of the Brown Open Meeting Act by the Oakland City Council and Mayor on November 9 to take the following unlawfully noticed action ”Occupy Oakland must go!”
To: “KarenBoyd” <KBoyd@oaklandnet.com>
Cc: “ArletteFlores-Medina” <AFlores@oaklandcityattorney.org>, ” Vicki (CAO)Laden” <vladen@oaklandnet.com>, occupyoakland@googlegroups.com, meshairizarry@gmail.com, facilitation@occupyoakland.org, LCohen@oaklandnet.com, officeofthemayor@oaklandnet.com, RKaplan@oaklandnet.com, LReid@oaklandnet.com, DBrooks@oaklandnet.com, IDelafuente@oaklandnet.com, LSchaaf@oaklandnet.com, NNadel@oaklandnet.com, PKernigan@oaklandnet.com, JBrunner@oaklandnet.com, JRusso@oaklandcityattorney.org,
Date: Friday, December 9, 2011, 8:20 PM
Karen,
This appears to be a response to the records act request not a response to my Notice to Correct or Cure Violations of the Brown Act. If you are denying the City violated the Brown Act you need to tell me in writting that is the City’s Final Response and under what statutory authority you can make such a response in the place of the City of Oakland Council or Mayor who I copied on this notice. I am asking for a meeting before the City where the City rescinds its November 9 , 2011 unlawful action, and subsequent actions taken in violation Occupy Oakland protestors’ Constitutional rights under color state law, in this case the Brown Open Meeting Act.
I do not seek to repay evil with evil but to give thought to what is noble in the sight of all. I don’t see this as anything more than an opportunity to balance the scales of justice and I am concerned that come Monday with the 12/12/11 port shutdown the City will confront protestors with riot police; compounding the City’s violations of federal civil rights under color of state law.
In the internal e-mails I received in response to my CPRA request I sense that the City Council is supportive but at the same time afraid of Occupy Oakland. I am here to tell you that fear is your biggest enemy; not Occupy Oakland.
What I see as your biggest fear is people camping out with tents. Why is this; is it because the First Amendment of the US Constitution says you can not assemble in tents when you are between the hours of 10 PM to 6 AM? Once again this is because of fear; in this case the fear is of the homeless. Why do you fear the homeless? Is it because the homeless sleep outside in violation of state law? Did you know the right to sleep is a fundamental right protected under international law and UN Declarations? So my conclusion is you are denying protestors lawful rights to assemble in tents during the hours of 10 PM to 6 AM under color state law to violate their federal civil rights, because you fear the homeless, and you violated the Brown Act.
My degree is in Physics and I am an engineer by profession. To assess the risk associated with any failure mode you are best to always error on the side of precaution. This is what is called the precautionary principal in risk assessment. In my observation the City has incurred a high cost to bring in riot police to contain the purported risk to “health and safety” without making clear whose health and safety is at risk. Is the City Council’s health and safety at risk? Is City Hall at risk? Is the surrounding community at risk? Maybe it is the occupants of the Occupy Oakland protestor? If this is the case there are clearly less costly methods to contain the risk to “health and safety”. For example the City could assign both a male and female police officer [without the riot gear] 24/7 at the Occupy Oakland encampment and 2 each City maintenance workers to deal with all these so-called risks without the need to confront the lawful protestors with riot police which costs much more and creates greater animosity between all involved. And how about opening up the rest rooms to the Occupy Oakland protestors and assigning security staff to keep an eye on City Hall 24/7? I am sure there are many talented folks in City Hall that have their own creative ideas in this regard.
So now lets talk a little about the City’s response to Occupy Oakland. Following the unlawful meeting of November 9, 2011 the City brought in a phalanx of riot police to clear out Oscar Grant Plaza of Occupy Oakland protestors and their tents.
I do not live in Oakland and I haven’t been to Occupy Oakland ever. I read about the unlawful meeting on November 9, 2011 in the Oakland Tribune. No member of the City Council denied they had participated as reported in the newspaper to my CPRA request in the meeting.
Finally you stated that “Press conferences are exempt from the Brown Act under 54952.2 (c)2,and therefore there is no agenda.” I am not challenging any ones right to call a press conference or issue any type of press release. I am challenging the action taken by the five members who constituted a quorum of the City Council who took unlawful action by voting 5-0-0 that “Occupy Oakland Must Go”. It is the action taken which we would have required the 72 hours notice and and agenda not the press conference itself. If the City had just held the Press Conference [with just the 4 members listed on the press release] with out taking any action as a quorum of the City Council there wouldn’t have been any issue with violation of the Brown Act.
Finally I want to make clear to you and the Council and the Mayor that I come in peace not to destroy you but to save you from your fears. You must not be afraid since that makes you act irrationally. My mother used to always tell me when I screwed something up as I made excuses for what I did wrong “honey you know your just digging yourselves in deeper”. So please do not fight me but admit that you are human and we all make mistakes. That’s how we learn and get better. Often times you have to screw it up first that’s all.
Respectfully,
Michael E. Boyd President
CAlifornians for Renewable Energy, Inc.
(CARE)
Phone: (408) 891-9677
E-mail: michaelboyd@sbcglobal.net
— On Fri, 12/9/11, Boyd, Karen <KBoyd@oaklandnet.com> wrote:
From: Boyd, Karen <KBoyd@oaklandnet.com>
Subject: Final Response to Public Records Request #7551
To: michaelboyd@sbcglobal.net
Cc: “Flores-Medina, Arlette” <AFlores@oaklandcityattorney.org>, “Laden, Vicki (CAO)” <vladen@oaklandnet.com>
Date: Friday, December 9, 2011, 6:02 PM
Signed letter also attached
| CITY of OAKLAND |
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| ONE FRANK H. OGAWA PLAZA · 3RD FLOOR · OAKLAND , CALIFORNIA 94612 | ||||||
| Office of the City AdministratorDeanna J. SantanaCity Administrator |
FAX
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(510) 238-3301(510) 238-2223 | ||||
December 9, 2011
Michael Boyd
5439 Soquel Drive
Soquel, CA 95073
michaelboyd@sbcglobal.net
SENT VIA EMAIL
Subject: Regular Public Records Request – Final Response
Date of Request: November 29, 2011, Public Records ID #7551
Dear Mr. Boyd:
This is to respond to your online public records request # 7551 which stated the following:
Please provide any documentation you have in your possession regarding what the San Francisco Bay Guardian identified as the “Police Executive Research Forum. . .that has been coordinating conference calls with major metropolitan mayors and police chiefs to advise them on policing matters and discuss response to the Occupy movement.” Please provide any documentation you have in your possession regarding any PERF-coordinated November 10 conference call with city police chiefs across the country – and many of these cities undertook crackdowns shortly afterward.
The City Administrator’s Office does not possess any records regarding a PERF-coordinated November 10 conference call.
Your request also stated:
Please provide me any documents in your possession regarding the November 11 NOTICE OF VIOLATIONS AND DEMAND TO CEASE VIOLATIONS TO PERSONS STAYING OVERNIGHT IN FRANK OGAWA PLAZA.
In a conversation we had by telephone yesterday where I sought clarification of this portion of your request, you told me that you were alleging that the news conference hosted by City Council President Larry Reid on November 9 included a quorum of the City Council, and you stated that this represented a meeting that was not properly noticed. You told me you were seeking a City Council agenda for that November 9 “meeting” where the Notice of Violations and Demand to Cease Violations would have been discussed and the Council would have taken action.
Press conferences are exempt from the Brown Act under 54952.2 (c)2, and therefore there is no agenda. Furthermore, the notice and subsequent removal of the encampment was ordered by the City Administrator under her City Charter powers and not by the City Council. Therefore the documents you described in our telephone conversation do not exist.
If you have any questions or concerns, feel free to contact me at (510) 238-6365 or kboyd@oaklandnet.com
Sincerely
Karen L. Boyd
Assistant to the City Administrato
cc: Arlette Flores-Medina, Open Government Coordinator, Office of the City Attorney
Public Records Request File
http://www.ktvu.com/news/news/emails-exchanged-between-oakland-opd-reveal-tensio/nGMkF/
“In the days leading up to the Nov. 2 march on the Port of Oakland, city leaders warned about the drain on police resources.
When Jordan received an update that crime was actually down 19 percent in the last week of October, he wrote an email to one of Mayor Jean Quan’s advisers.
“Not sure how you want to share this good news,” he wrote. “It may be counter to our statement that the Occupy movement is negatively impacting crime in Oakland.”