Berkeley Pools Campaign

Federal court ruling: Warm Pool to stay closed

U.S. District Judge Susan Illston issued her long-awaited Warm Pool ruling Dec. 19, rejecting a request that she order the City of Berkeley and Berkeley Unified School District to keep the pool open and operating.

For all practical purposes, the ruling ends the Warm Pool lawsuit as a public policy matter. The lawsuit will continue its course to decide monetary damages for injuries sustained by the plaintiff, Terry Cochrell, in a July 2010 accident at the pool. But the ruling pours cold water on Cochrell's argument that the federal Americans with Disabilities Act obligates the City to provide a 92-degree Warm Pool for the City's disabled residents.

The Warm Pool, located in the Old Gym at Berkeley High School, ended nearly three decades of operations Dec. 15, when it closed for the last time after a mock funeral attended by its users and supporters. The pool will remain vacant and padlocked until the building's scheduled demolition in June 2012 to make way for new gym and classroom facilities for the overcrowded campus.

In her 13-page ruling, Illston made three principal findings. Here are direct excerpts:

• (...) as the City notes, ADA accessibility design guidelines do not mandate any particular temperature for pools, and the City argues, with some force, that if the Court granted plaintiff the injunctive relief he seeks -- a 92 degree graduated depth pool -- the Court would essentially be mandating a new access requirement for any public entity that provides an aquatics program.
• The record before the Court shows that if there was a significant earthquake in the Bay Area, the Old Gym would likely collapse. (...) given the risk to public safety in the event of an earthquake, the Court concludes that the requested injunction is not in the public interest.
• In evaluating the balance of the equities, the Court also finds that the availability of the Berkeley YMCA warm pools weighs in favor of denying the injunction. (...) Although the YMCA warm pools are not identical to the Warm Pool in configuration and temperature, they do provide an alternative warm swimming option to plaintiff.

The full ruling can be read here. 

As we have stated publicly on frequent occasions, the Berkeley Pools Campaign takes a neutral position on the lawsuit. We were and remain strong supporters of the Warm Pool, and we now hope the City Council will approve a bond measure for all of Berkeley's municipal pools, including a new Warm Pool, for the November 2012 ballot.  At the same time, we have always been and always will be strong supporters of Berkeley's public schools. We are all in this together -- pools and schools, young and old, able-bodied and disabled.

Warm Pool funeral

The Warm Pool filled for the last time Wednesday night, as scores of pool users and supporters gathered to bid the pool adieu.

A mock coffin was carried into the pool, as participants in the water and on the decks held candles and mourned the loss of the Warm Pool. Wednesday, Dec. 14, was the pool's last day open to the general public;  a regularly scheduled Berkeley City College class for the handicapped will be held the following day. Then the pool will be mothballed for several months, with demolition scheduled for June.

Rabbi Sara Shendelman played Tibetan bells and read an interfaith series of prayers, invoking the world's great spiritual traditions.

To close the event, longtime Warm Pool swimmer Judi Berzon read a statement from the Berkeley Pools Campaign, of which she is a Steering Committee member:

Welcome to the Warm Pool funeral.

On the eve of the Warm Pool’s scheduled final closure, we are gathering together with great sadness to mourn many losses:

• We mourn the Warm Pool, which has served the disabled, elderly, parents, infants and many others since the mid 1980s.
• We mourn the weakening of Berkeley’s leadership on disability rights. By allowing the Warm Pool to close without any real effort to provide or plan for a replacement facility, the City of Berkeley is undermining its longtime status as pioneer of the nationwide movement for the rights of the disabled.
• And we mourn for ourselves. The Warm Pool is the only available and affordable form of exercise and therapy for many of us who are disabled. For some, the pool’s loss may be the chronicle of a death foretold. Its disappearance will certainly lead to diminished health for many, and for some it will inevitably lead to premature death. To say this is not melodrama or exaggeration. It is reality.

We urge the City Council to respond quickly to provide Warm Pool alternatives for the short and medium terms. At the same time, we urge the City to begin as soon as possible the planning and research process for a pools bond measure for the November 2012 ballot. Such an initiative would unite the able-bodied and disabled, the young and old, to create a long-lasting legacy in which Berkeley can be justifiably proud.

KPIX Channel 5 filmed the event and filed a report on the 11 pm news, viewable here.

The event also was filmed by Berkeley videographer L A Wood:

 

The Daily Cal's coverage of the funeral is here, and Berkeleyside's coverage is here.

Lawsuit update

The fate of Berkeley's Warm Pool now sits in the hands of Judge Susan Illston.

The Dec. 9 hearing of the Warm Pool lawsuit at U.S. District Court in San Francisco ended inconclusively, as Illston gave little indication whether she intends to grant the request of the plaintiff's lawyers for an injunction to keep the Warm Pool open. At the end of the 40-minute hearing, she said only that she would issue her ruling "shortly" -- which is widely expected to be before Dec. 15, the pool's scheduled closing date. [Update 12/15: by the end of the day, the judge had not ruled. So the game goes into overtime.]

Lawyers for the contending sides --  plaintiff Terry Cochrell versus the City of Berkeley and Berkeley Unified School District -- were subjected to probing questioning by Judge Illston as about 30 Warm Pool users listened from the audience. Wheelchairs clogged the aisles, creating a surreal scene when scores of corporate attorneys from other cases were obligated to wait awkwardly to step around them. 

The Berkeley Pools Campaign takes no side in the lawsuit, but from our perspective here are some of the more important takeaways from the hearing:

• Judge Illston seemed concerned about two issues favorable to the defendants: the School District's claim that the Warm Pool building is seismically unsafe, and the possibility that a decision to grant an injunction might lead to an overly broad legal precedent that would force municipalities and school districts around the country to build Warm Pools.
• On the other hand, Illston seemed sympathetic to two claims by plaintiff's attorney Celia McGuinness: that the City's plans for providing disabled programs in the outdoor pools would be worthless "if disabled people can't get in the water because they would get hypothermia," and that the Berkeley YMCA pools are not a valid replacement because none of the pools meets the needs of the disabled for 92-degree deep water.

The previous day, Dec. 8, Scott Ferris, the City's acting director of Parks, Recreation and Waterfront, filed a last-minute brief in support of the defendants. His brief is viewable here, and it details the City's plans for switching programming from the 92-degree, indoor Warm Pool to the City's 81-degree outdoor pools. Following are direct quotes from his brief:

• Arthritis Class (for seniors and disabled): (...) Upon closure of Warm Pool, the City will encourage patrons to participate in a similar class at King Pool, the somewhat misnamed "Senior Exercise Class." In reality, the "Senior Exercise Class" enrollment is approximately 60% disabled patrons, and not all of them are seniors. 
• Quiet Swim (for seniors and disabled): (...) Upon closure of Warm Pool, the City intends to open the diving pool at King Pool for this same purpose for approximately 6 hours per week.
• Senior/Disabled Swim (for seniors and disabled): (...) Upon closure of Warm Pool, those patrons can utilize King Pool for lap swim (up to 35 hours per week) and the shallow part of King Pool will be available for many hours as well for those patrons who presently enjoy activities in the shallow end of Warm Pool.
• Spirit Walking/Aqua Chi (for seniors and disabled): (...) Upon closure of Warm Pool, the City intends to offer a "meditation" class in the shallow end of King Pool.
• For several months the City and the Berkeley Y were exploring ways to "partner" upon the closure of Warm Pool, but it was ultimately determined that was unworkable, for logistic and operational reasons.

KTVU: special needs kids vs. Warm Pool closure

KTVU television showed a short but good segment on the Special Needs Aquatic Program (SNAP) on last night's news. The report said the 45 SNAP kids "will have no place to go" after the Warm Pool closes Dec. 15, and added that the City has no definite plans to replace the pool. The report briefly interviewed Mayor Tom Bates and noted that a new pools ballot measure is possible for 2012. The report can be viewed by clicking here.

A similar video report was published by the Daily Cal a week ago, viewable here.

Legal dueling in Warm Pool lawsuit

The Warm Pool lawsuit is lurching toward a crucial decision in the next two weeks, and both sides have filed their last briefs. As we reported two weeks ago, the plaintiffs are asking Judge Susan Illston to issue an injunction ordering the City and School District to keep the Warm Pool open while the lawsuit runs its course in 2012 through a full jury trial in U.S. District Court in San Francisco.

On Nov. 29, the City and School District filed their responses in opposition to the injunction request: here and here, respectively. In return, the plaintiffs responded on Dec. 5 to the City and School District in separate filings: here and here, respectively. Judge Illston is expected to issue her decision before Dec. 15, the scheduled final closing date for the Warm Pool.

The legal arguments in the filings are complex, and we won't attempt to summarize all of them. The Berkeley Pools Campaign takes a neutral position in this case. But to our non-lawyer's perspective, the key points made by each side are summed up in these excerpts:

City:

Plaintiff's allegation that the Warm Pool's closure will leave Berkeley and the East Bay without access to an aquatics program for the disabled is also false. (...) The City's aquatics program will continue to remain accessible, as the King and West Campus pools are and will continue to be accessible to disabled users. Additionally as shown above, the Warm Pool is not the only warmer water pool available to plaintiff in the City, as the two Berkeley Y warm pools are nearby. The YMCA has three pools, of which two are maintained at warmer temperatures.

School District:

Four (4) professional structural engineers have provided their expertise on the structural deficiencies of the building and, in their judgment, the building will likely collapse in the event of a significant earthquake. If the 90 year old building collapses, the impact would be catastrophic. For the plaintiff, the harm is non-existent, he faces only the inconvenience of accessing a warm water pool facility a few hundred feet away at the YMCA. In contrast, forcing BUSD to keep the Old Gym open jeopardizes the lives of hundreds of Berkeley High School students, BUSD employees and members of the general public.

Plaintiff's rebuttal to City:

When there is only one pool which has the warm air and water temperatures disabled people need, and all the classes aimed at disabled people are offered there and nowhere else, the putative "access" to the other pools is not meaningful and not equal. Closing the Warm Pool, while keeping the other pools open, constitutes disparate impact discrimination.

(...) Asserting that when the Warm Pool closes disabled people should just “join the Y” indicates a stunning misunderstanding of defendants’ obligations under the law.  First, defendants are public entities with the obligation to maintain the public programs they provide. They cannot simply cut them on the grounds that a private organization offers a similar program.  The idea that able-bodied people can use public services but disabled people must join a private club is so beyond the pale that to plaintiff’s counsel’s knowledge, no public entity has ever asserted that defense before.

Plaintiff’s rebuttal to School District:

BUSD's main reason for closing the Warm Pool is to build new facilities. Though defendants protest that they are concerned with the Warm Pool's seismic safety, their previous behavior belies their new-found urgency. Until this motion was filed BUSD behaved as if the pool building, while not seismically ideal, was certainly safe enough to use. In fact, that was a reasonable position for the District to take. All the seismic reports demonstrate that the Swimming Pools building is (1) safer than the Gymnasium, (2) habitable, and (3) reparable.

(...) Over the last twenty years defendants neither fixed nor replaced the Pool; this "crisis" is entirely of their own making, and a violation of their obligation under the ADA to properly maintain their accessible facilities. The question for the Court is whether delaying demolition until a real equivalent program is in place is sufficient harm to defendants to overbalance plaintiff's civil rights and the public interest in a warm pool. Neither defendant produces evidence showing sufficient harm from delaying the demolition to justify depriving disabled people of their equal rights.

Special-needs children and the Warm Pool closure

The Daily Cal has published an article profiling the Special Needs Aquatic Program (SNAP), which provides classes in the Warm Pool for children with disabilities. The Dec. 15 final closure of the Warm Pool will be a significant blow to many of the 45 SNAP children who are unable to use the YMCA pools because of the cooler water and other limitations.

Separately, a detailed summary of the Warm Pool's value to special-needs children can be found in the supporting brief  submitted by Dori Maxon, SNAP's executive director, in the federal lawsuit that is seeking to keep the Warm Pool open. 

The Daily Cal article also included a four-minute video with interviews of Warm Pool users, which can be viewed here: 

 

No YMCA deal for Warm Pool users

After many attempts to obtain official clarification about the City's plans for users of the Warm Pool after its final Dec. 15 closure, we finally received a response from the YMCA. The answer is this: Despite Berkeley officials' suggestions in recent months that the City would provide some sort of subsidized access to the YMCA pools, no such deal will be offered.

Instead, the people who recently signed a list that was posted at the Warm Pool (vaguely titled "For YMCA") will be included in the YMCA's annual promotional "open house" invitation, to be sent via email in the next week. The YMCA's invitation will offer the general public a free one-day pass to YMCA facilities during December. The Warm Pool users and the general public will be invited to apply for YMCA membership, with the YMCA's standard offer of financial assistance to those who can fulfill the YMCA's low-income eligibility requirements.

So the net result is that after the Warm Pool closes Dec. 15, the City will make no independent attempt to provide aquatic facilities and services to the disabled, the elderly and other users of the Warm Pool. 

In general, we in the Berkeley Pools Campaign are big supporters of the Berkeley YMCA, and some of us are longtime members. But it's worth noting that many disabled and elderly Warm Pool users say the YMCA pools cannot serve their needs for recreation and rehabilitation. These concerns were detailed in a Sept. 19 letter to the City Council from Berkeley's Commission on Disability. Here is an excerpt:

While a substitute pool at the Downtown YMCA is being touted as an acceptable alternative, it has serious limitations that make it unacceptable as a long-term solution. The warm pool at the YMCA is only three feet deep, which does not allow an adequate environment for therapy without getting chilled.  Another pool at the YMCA being offered, Grace’s Pool, has multiple deficiencies. It is billed as 88-90 degrees, although recent user reports have indicated it varies between 87-89 degrees – not warm enough for many users who need 92-degree water such as the current warm pool at Berkeley High. Its pool deck is so narrow it does not allow two people using wheelchairs to pass side by side, and also does not allow a person to leave his or her wheelchair against the wall without becoming an obstacle to others trying to get by. Finally, its hours of availability for the disabled are limited, and do not include the late afternoon and early evening that is optimum for many people with disabilities. 

(...) Parking will also be a problem, particularly at times when large public events are happening downtown or on campus and the nearest garages fill up. 

People with disabilities in Berkeley need and deserve a warm pool owned and operated by the City. We ask the Council to quickly begin the planning and research process that is needed to enable authorization of a pools measure for the November 2012 ballot.

Update on planning for a 2012 ballot measure

As we move within one year of the Nov. 6, 2012, election, we are waiting for the City Council to begin serious debate on a new pools ballot measure, as the Berkeley pool users community is proposing.

Since the Council's Sept. 27 work session on the pools and parks, Council members and City staff have been evaluating Berkeley's many needs and considering how to package them for an election. Council members are also considering several other options including a tax for street paving, watershed management (storm drains and creek restoration) and assorted parks/waterfront projects. City staff presentations on these topics can be seen here, here and here, respectively.

The Berkeley Pools Campaign is proposing a pools ballot measure similar to last year's Measure C, which received 62.2 percent of the vote, along with much-needed research into best practices at other Warm Pools and preparatory work for budgets and drawings. 

The City Council has not yet set a date for discussion of election planning. We hope the Council will not wait until the last minute to do so.

Separate yet related to this process is a wild card: the Warm Pool lawsuit, which is being heard at the U.S. Ninth District Court in San Francisco. As we have said previously, the Berkeley Pools Campaign has no involvement whatsoever in this lawsuit and we take no position on it. However, the case certainly is of great relevance to the fate of Berkeley's Warm Pool as well as the outdoor pools, and for this reason we are tracking it closely.

On Nov. 10, the plaintiffs filed a motion (PDF viewable here) asking Judge Susan Illston to issue a preliminary injunction ordering the City and School District to keep the Warm Pool open and operating while the trial proceeds or until a similar public facility is provided as a replacement.

A declaration in support of the motion (PDF viewable here) was submitted by Dori Maxon, executive director of the Special Needs Aquatic Program (SNAP), which provides classes in the Warm Pool for children with disabilities. Her declaration explains how the Warm Pool's 92-degree water provides great physiological and psychological benefit to the disabled in general and to children in particular.

Judge Illston is expected to rule on the injunction request before the City's announced Dec. 15 closure date for the Warm Pool. The School District has announced that it will demolish the Old Gym, which contains the Warm Pool, in early 2012.

The untold story about the City's overhead costs

About six months ago, the Berkeley Pools Campaign obtained from an independent source a document whose existence had been unknown to us or to the public -- the detailed budget for Measure C, last year's pools ballot measure. We examined it eagerly because we were hoping the City would be able to design a new pools ballot measure for 2012 that could offer voters improved value for money and thus have a better chance of election victory.

We spent many hours poring over the budget, and to interpret the details we consulted with experienced construction management professionals. We were pleasantly surprised when the experts concluded from the data that Measure C could be replicated for millions of dollars less. But our surprise turned to shock when they explained the reason: Measure C's $22.6 million cost was artificially inflated by at least $5 million and perhaps more than $7 million in abnormally high soft costs and construction contingencies.

(Soft costs are added to all projects as a multiplier of hard construction costs, and they typically include architects' fees, consultants' fees, hazardous materials studies and the like. A construction contingency is added to all projects to cover unforeseen increases in bricks-and-mortar construction costs due to hidden or changed conditions.)

For Measure C, the City set its rate for soft costs at 45 percent, far higher than the regional average of 25 percent for similar projects, and it set a construction contingency of 17.5 percent, also far higher than the regional average of 5 percent for new projects and 10 percent for remodels.

The Berkeley Unified School District, Berkeley Public Library and Albany Unified School District told us that the formulas they use are far lower than those in Measure C:

• BUSD. From 1992-2011, all bond projects over $1 million, average: soft costs 21.7 percent, construction contingency 5 percent for new and 10 percent for remodels.
• Berkeley Public Library. For Measure FF: soft costs 36 percent, construction contingency 8.6 percent.
• Albany School District. For the pools project now underway: soft costs 18.7 percent, construction contingency 7.5 percent.

The net result is this:

If the City had used those established formulas, Measure C would have shrunk from its $22.6 million price tag to the following: $17.4 million (libraries formula); $15.5 million (BUSD formula); and $15.0 million (Albany formula).

If Measure C had cost that much less, it could have easily closed its 4.5 percent gap to reach 66.7 percent. In other words, our election result could have changed from defeat to victory.

A detailed summary of these costs is viewable here. To see the raw background data, the Measure C cost estimate report is here (see King Option 3, Willard Option 1 and West Campus Option 4); an Excel file of BUSD projects 1992-2011 is here; the Measure FF budget is here; and the Albany pools budget is here.

Our purpose in raising these concerns is not to look backward, point fingers or cast blame. This is about looking forward to create a new ballot measure for the pools that is capable of winning an election in November 2012. Especially given the indications that the City Council may be considering more than one ballot measure, perhaps also including street paving and storm drains, it's crucial to reduce overhead costs so voters have confidence that their money will be spent wisely. Two-thirds of the vote is a very difficult bar to clear. 

Our attempts to obtain explanations from the City have been frustrating, as shown by a recent exchange of letters between the Berkeley Pools Campaign and the City. Our Sept. 11 letter to City Manager Phil Kamlarz is here; Kamlarz's Sept. 23 response is here; and our Sept. 26 letter to the City Council is here.

At the Sept. 27 City Council work session, Kamlarz and William Rogers, director of the Parks & Rec Department, did not directly explain why they had set soft costs and contingencies at rates that were so much higher than those of BUSD, the Berkeley Public Library or the Albany School District. They appeared to acknowledge that millions of dollars in soft costs were intended to pay for City staff overhead -- a practice that they admitted was at variance with the norm at other local cities and school districts. But they gave no details, and the Council members did not press them for any. For media coverage of the meeting, check out the Daily Cal's article here, Berkeley Patch's article here, and Berkeleyside's article here.

This is crucially important for 2012 and beyond. As the City Council and the general public discuss how to put together one or more bond measures for the November ballot, Council members will need to ensure that costs are calculated without excessive bureaucratic overhead. This is basic due diligence, and it's one of the most important -- although admittedly not simple -- functions of an elected  body. If Berkeley residents are to enjoy their pools, parks, waterfront and other facilities for many years and generations to come, the City Council needs to follow through.

Community support for pools ballot measure in 2012

Good news! In the past few days, three influential organizations have sent letters to the Berkeley City Council urging its members to approve our proposal for a pools ballot measure in the November 2012 election. The Berkeley Commission on Disability letter can be read here, the Berkeley Commission on Aging letter can be read here, and the Berkeley PTA letter can be read here.

Delay in Warm Pool talks between City, YMCA

Negotiations between the City of Berkeley and the Downtown YMCA over a post-Warm Pool alternative have hit unexpected roadblocks, city officials said at a meeting Tuesday night. As a result, the Warm Pool users' future remains in doubt after their pool closes permanently in December.

The city's Parks & Recreation Department, which convened the meeting, had been expected to announce terms of an agreement to subsidize current Warm Pool users at the YMCA's pools. The two sides have been negotiating the issue for months. Instead, the meeting answered few questions and created many new ones.

The main speaker was the department's Youth and Recreation Services Manager Scott Ferris, with department Director William Rogers and YMCA Aquatics Director Joedy Michael also speaking for a while. Their main take-away points were these:

• The Warm Pool is scheduled to close permanently Dec. 15, with demolition scheduled for early 2012. If the judge in the Warm Pool lawsuit issues an injunction against closure as requested by the plaintiff, the Warm Pool could stay open for however long the injunction lasts. The City Council would have to authorize additional funding, but Ferris indicated that the Parks & Rec Department would have the staffing capacity to switch on short notice to continue the pool's current programming.
• Ferris announced that no agreement had yet been reached between the City and the YMCA for use of the YMCA's warm pool (30 feet by 30 feet, three feet deep) and Grace's Pool (20 yards, three lanes, with a seven-foot deep end). He said he was disappointed at the delay and had hoped to announce the deal at the meeting, but he said it would take several weeks more to finalize an agreement. He did not explain the reasons for delay. After the meeting, Joedy Michael did not directly answer a question about the holdup, but he suggested that the YMCA wants the deal to involve subsidized memberships for the whole Downtown YMCA facility while the City wants a deal that would give access only to the YMCA's pools.
• Both sides have already agreed that the deal will cover all Warm Pool users no matter where they live, not just Berkeley residents. 
• A sign-up list is being placed at the Warm Pool. Between now and mid-November, Warm Pool users can sign up to be eligible for whatever YMCA subsidy deal is finally arranged.
• Joedy Michael said that when it recently reopened after remodeling, Grace's Pool has been changed from its previous 84-86 degrees to the current 88-90 degrees. However, he said that the YMCA does not have any thermometers to measure the water temperature, so he admitted the actual pool temperature was uncertain. Warm Pool user Susan Hall, who also is a YMCA member and swims there regularly, said that in four recent visits, she estimated the temperature at 89, 87, 88, and 87 degrees.
• Joedy Michael suggested that the eventual agreement will not commit the YMCA to keeping Grace's Pool in the 88-90 degree range for any guaranteed minimum period. He said the YMCA may recalculate depending on the number of users. In other words, the YMCA could conceivably lower the temperature at any time.

Our conclusion from the meeting was this -- whatever the reasons why the City and YMCA have not yet reached an agreement, they make it clearer than ever that Berkeley needs a new pools ballot measure in 2012. Let's hope the City Council listens. 

Pools debate returns to City agenda

The Berkeley pools community has another chance to save the pools and get a new pools ballot measure on the 2012 ballot. Two meetings will be held in the next 10 days:

1) The Parks & Rec Department is holding a meeting to discuss its plans for accomodating the aquatics needs of current Warm Pool users after the current facility is demolished in January. The meeting will be Tuesday, Sept. 20, 6:30-7:30 p.m. at the Albrier Center in San Pablo Park, 2800 Park Street. The Department will present its plan for the Berkeley Downtown YMCA as a quasi-permanent substitute for the Warm Pool. The meeting will be quite useful for getting information, but its usefulness as a public forum for discussion will be limited. The Department appears dead set on closing the Warm Pool and trying to block a 2012 pools ballot measure, and we're unlikely to say anything that could change that position. Let's remember that the City Council, not city staff, will be making the final decision on the pools.

2) On Tuesday, Sept.27, 5:30-6:30, the City Council will hold a work session in the Council chambers. Parks & Rec Director William Rogers will give a presentation about "Parks, Pools and Waterfront Capital Needs," and the Council will discuss. Public comment will be right at the start, 5:30 sharp. It's VERY IMPORTANT for us to make a big showing and speak. *** City staff appear to be hoping this session will be the final burial of the pools, and it's our job to persuade the Council to keep the pools alive and continue active consideration of a pools ballot measure for 2012.

Everyone needs to remember that Measure C last year received 62.2 percent of the vote, which is a genuine popular mandate.  How many Councilmembers in Berkeley received at least 62.2 percent in their most recent election? Only four out of nine. The other five are in office only because elected officials, unlike new taxes, do not require 2/3 of the vote.

*** Update 9/26/11-- our crystal ball is pretty murky, but it seems to suggest that we don't really need to get a big turnout on the 27th. As long as we have a few speakers to hit the high points, that will be enough. In the past few days, the Berkeley PTA, the Commission on Disability and the Commission on Aging have all weighed in on our behalf, so let's go for a light touch at this Council meeting. 

Lawsuit filed over Warm Pool

A potential wild card has arisen for Berkeley pools politics: a federal lawsuit that could significantly delay the closure and demolition of the Warm Pool.

The lawsuit was filed in U.S. District Court in San Francisco by Terry Cochrell, a Warm Pool user who is unaffiliated with the Berkeley Pools Campaign. The case has been assigned to U.S. District Judge Susan Illston, who gained fame presiding over the Barry Bonds BALCO case. The lawsuit alleges that the Warm Pool is in unsafe condition and is non-compliant with the Americans With Disabilities Act (ADA). The lawsuit seeks an injunction against the City of Berkeley and Berkeley Unified School District barring the planned December closure of the Old Gym building that houses the Warm Pool and ordering that the pool be brought into compliance with ADA code. The plaintiff's filing can be viewed at this link, and the School District's response can be viewed at this link.

Procedural steps that were ordered by the court Sept. 15 seem likely to stretch into early December, with no date yet for the trial to start or even for a hearing to decide on the plantiff’s injunction request. The School District has requested a jury trial, which could potentially stretch the case out for a much longer period.

All of this means that a delay appears very possible for the scheduled December closure and January demolition of the Warm Pool. This, in turn, could delay the School District’s plans for building new classrooms and gym facilities at the high school.

The current lawsuit appears to have no direct relation to a lawsuit in 2007-08 by preservationists and conservative anti-tax activists seeking to preserve the Old Gym. The School District emerged victorious in that lawsuit.

We want to emphasize the following:

The Berkeley Pools Campaign has no involvement whatsoever in the current lawsuit, and we want to remain completely neutral. Of course, we are fervent supporters of the Warm Pool, yet our main focus is attempting to persuade the City of Berkeley to put an all-pools bond measure on the 2012 election ballot. We're not lawyers and we have no opinion about the ultimate legal responsibility for the Warm Pool. But in strictly political terms, the Berkeley entity responsible for providing public recreation and health facilities  (such as the Warm Pool and the other pools) has always been the City, not the School District. It‘s also worth mentioning that the Berkeley Pools Campaign has always been a strong supporter of Berkeley’s public schools, and vice versa. As our co-chairs said when we endorsed the School District's Measures H & I in the November 2010 election, “we believe pools and schools are two sides of the same coin.”

Chlorine

Does the chlorine in Berkeley pools give you itchy skin? Are you worried about the potential impact on child asthma? Well, we don't have any magic answers for that. Berkeley pools are not about to stop using chlorine, at least not right away. But this article in the Wall Street Journal about salt disinfection methods for pools makes for interesting reading.

It's drowning season

It's summer, time when Californians flock to swimming pools, beaches and rivers. Unfortunately, because so many people don't know how to swim, some drown. This year, since Memorial Day weekend, four people have drowned in California. In 2009, the last year for which official data is available, 93 children ages 18 and younger drowned in the state. More information is available in a new report by California Watch at this link. All of which highlights the need for comprehensive swim instruction for children. In Berkeley, however, two of the four municipal swimming pools will be closed permanently by the end of this year, thus diminishing the number of children who can take swim classes.

The closure of our public pools is not just bad for our community in many ways. Inevitably, it will cost lives.

N.Y. Times: more pools closing

The New York Times has weighed in on a story that the Associated Press wrote a few weeks ago:  Municipal budget cuts have closed public pools during the hot summer months all around the country. See the Times article here. It's more sad evidence that part of the fabric of American life is being shredded. With the federal debt limit issue speeding toward a nightmarish crisis, and California's own budget seemingly headed for deep "trigger" cuts, payments to municipal governments are an easy target for desperate legislators. And unless voters in places such as Berkeley organize to save their pools and other essential facilities, they will be lost forever to the process of decay and diminishing expectations.

Defeat - and next steps?

At the City Council last night, Tuesday, June 28, we received only three out of nine "yes" votes, on two separate but virtually similar motions related to our proposal on the agenda. Kriss Worthington, Max Anderson and Jesse Arreguin were our "yes" votes, with the rest either voting "no" or "abstain" (which effectively are the same thing).

Several of the "no" Council members wrung their hands and tried to explain why their "no" votes were not really "no" votes. More than one seemed to be positioning themselves toward next year's election, in which it would be highly inconvenient for them to be seen as enemies of the pools.

There were some faint glimmers of hope. After the vote, the Council tasked City staff with carrying out a study of Measure C's bloated costs for administrative overhead, as well as the Warm Pool situation. It appears the staff report will be released sometime in the next couple months. Councilmember Laurie Capitelli made a point of saying that he "will hold staff's feet to the fire" and that if the report doesn't explain matters completely, he will push for outside consultants to be hired to answer them.

We'll see.

In the meantime, City Manager Phil Kamlarz has made clear that he wants no pools ballot measure in 2012 or 2013. The Council majority is highly unlikely to buck him unless they feel strong public pressure. How we do that is yet to be determined.

In the meantime, what is certain is that Willard Pool will remain filled with dirt, leaving South Berkeley no public pool, and that the Warm Pool will close forever in December. Step by step, Berkeley is shrinking, and our community is the poorer because of it.

Important Council vote for the pools

 The City Council’s meeting this coming Tuesday, June 28, is shaping up as a make-or-break moment for the pools. Everyone needs to step up to the plate and make themselves heard. Please contact your Council representative and all other Council members and ask them to vote YES!

Two pools items are now on agenda, 46b6 and 46d. You can read the texts of the two items here (46b6) and here (46d). The Council is obligated to take a final vote on both of these on June 28 because they are included in the FY 2012-2013 budget package that must be decided at that meeting.

Item 46b6 is our previous proposal for advance research and planning for a new pools ballot measure, as we explained in our previous post. The second item, 46d, is a new addition that inserts  pools planning into the "Biennial Work Plan" for city staff. In other words, 46d would allow Parks & Rec Department staff to do preparatory work for a new ballot measure, in complement to 46b6. The new item is vital because the City Manager appears to be insisting that unless a subject is specified in the Biennial Work Plan, staff cannot work on it for the next two years. And if staff cannot work on it, the Council will be unable to consider a ballot measure during those two years. 

So we need all swimmers and pools supporters to contact their Council members and ask them to please support both pools-related items (46b6 and 46d). 

To find your Council member's contact information, see here.

 

One step forward at City Council

We had a great turnout at Tuesday night's City Council meeting to speak in favor of our proposal. Our swimmers and Warm Poolers spoke eloquently and effectively. Gladys Gray of SEIU Local 1021 also spoke out in our behalf, telling the Council that our proposal is a smart investment in saving city services at the pools and creating new jobs.

However, the Council wound up not debating our item, and instead held it over until the next meeting, June 28, along with several other budget items. A final vote must take place on the 28th because the City is legally obligated to approve its whole annual budget at that meeting.

Exactly how our item will be set on the 28th agenda is unclear. What is likely, however, is there will be lots of activity between now and the 28th in the proverbial smoke-filled back room. It remains unclear whether the deal will be cooked there or whether decisions will be made in real time at the 28th meeting. In the meantime, please mark your calendars for the 28th. We probably will need to mount another good showing.

 

City Council to debate funds for pools planning

After months of organizing, the Berkeley Pools Campaign has come up with a strategy that would lay the groundwork for a new pools ballot measure in November 2012. Our proposal is on City Council's meeting agenda next Tuesday, June 14, and we need supporters to come speak. If you’re available, please put it in your calendars and come. It is Item 31E on the agenda, which means it probably won’t come up until after 8:30 p.m. If you expect you will be busy at that time, would you please send an email to your Council member asking him/her to support our proposal?

The text of the proposal, which is co-authored by Kriss Worthington and Darryl Moore, is at this link (PDF). The proposal would hire two consultants at a total cost of $50,000 to undertake two projects, as follows:

1) Cost reduction and conceptual drawings.  The City would hire an experienced project manager to review the budget for Measure C, identify savings and re-adjust it after modifications suggested by the Council. This person would also produce conceptual drawings of the pools. Here’s the background: Many voters told us that Measure C’s costs seemed excessive. This perception is likely to grow further because of the much lower capital costs of the City of Albany’s project for two new pools, which are currently under construction at Albany High School. The Albany project manager has already reviewed the Measure C budget and identified at least $4.3 million in savings. In addition, many voters asked us during the Measure C campaign what the new pools would look like. We had no persuasive answer because no drawings were available. We agree that if voters are asked to pay millions of dollars, they deserve a visual representation of what their money will buy.

2) Warm Pool planning study. The City would hire an expert in Warm Pool programming to produce a credible business plan that shows how innovative programming and outreach could make Berkeley’s Warm Pool a success. Here’s the background: To many Berkeley voters, it makes no sense to spend millions of dollars on a facility that they mistakenly believe only a small number of people would use. Berkeley voters need comprehensive information and analysis about a new Warm Pool’s potential for attracting a larger, broader user base and increased revenues. In our preliminary research of other Warm Pools with successful track records, it has become apparent that Berkeley’s new Warm Pool would be a dramatic change from the unappealing, decrepit Warm Pool at Berkeley High, generating significant income and becoming popular for many sectors of the community.

In the past four years, the City has spent more than $500,000 on poorly conceived pools planning efforts – the design for a Warm Pool at Milvia Street, and the Pools Master Plan Task Force. The $50,000 that we are proposing is a fraction of that amount, and is carefully targeted at what the pools really need. These two projects would ensure that the pools have lower capital costs, higher operating revenues and truly respond to the needs of the Berkeley public.

We are envisioning a new ballot measure very similar to Measure C, perhaps with a few minor alterations. Like Measure C, it would entail a new competition-size pool at King, an indoor Warm Pool and outdoor lap pool at West Campus, and restoring Willard Pool. Like Measure C, it would include a dedicated stream of operational funds to keep the pools open (with extra hours) and fully staffed, no matter how bad the City’s budget cuts become.

Kriss Worthington and Darryl Moore have done a great job with their budget scalpels, figuring out how to find the $50,000 elsewhere in the City budget to fund our proposal.

This is a crucial building block for next year's election, and because of scheduling concerns it needs to be laid now. But we need your support! Please come to the Council meeting and/or email your Council member to urge them to support the pools proposal. To find your Council member's contact information, see here.