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Dear John

An Open Letter to Mayor John Nielsen and the Tustin City Council

Dear Mayor Nielsen,

At the Tuesday night meeting of the Tustin City Council, you expressed outrage that the newspapers and blogs would attack you over the Heritage Elementary School lawsuit. You thought it unfair that the press had labeled you and the city council as racist because of a pleading entered by the city in Orange County Superior Court outlining their complaint against the Tustin Unified School District. I can’t help but notice, you timed your remarks so as to preclude any immediate response from the audience by including them in “Mayors Comments” at the end of the session. I felt a response was necessary, to keep the record straight. As such, I choose to respond here.

You began your comment (which begins at timemark 1:09:12) on the issue by saying that you were the one who originally set up a meeting between the city and school district to hammer out an agreement. You also said:

I’ve been a great supporter of Tustin Schools for many years. My children have grown up in Tustin public schools from kindergarten and have graduated through high school. They’ve attended Nelson Elementary, Utt Middle School and Tustin High School, both of my children graduated from Tustin High, and this dispute is very disconcerting and has been for the last two years.

But, in the most recent legal battles that we’ve had, the city has tried to protect its residents and Tustin Legacy by trying to preserve a newly built neighborhood school as an elementary school. That school was paid for by those residents, by millions of dollars in fees, mello-roos. And, we engaged in that in order to have that elementary school so they could use it for their kids, which they anticipated they could have until it was changed and the carpet pulled out from under them, so to speak. But, you know, there are differences between agencies and institutions and people don’t always agree on things, but, you know, I’ve been fairly patient throughout this and haven’t said a whole lot.

But, when I see in the newspaper that the TUSD is declaring us as racist and, by reference, the neighborhood in Tustin Legacy as well, I get very perturbed. And, frankly, it’s despicable and it doesn’t do anything to solve anything. I know we disagree but, name calling and playing the race card is certainly not the way to solve those differences. I’m even more concerned that, frankly, the Orange County Register would print this, with scurrilous accusations without any foundation. Instead of trying to inflame people in this community, we should be trying to bring them together. We should try to heal and we should try and work together as much as we can. And, if we have differences, let’s please be civil about it. Let’s not get it down to calling names at each other. Let’s just do what we need to do to get through this. I’ve been quiet on this. I’m usually a patient man. But, when I see that I am being called a racist, I get a little upset.

Let’s clear up a few things here. You claimed the Register made scurrilous accusations that had no foundation. It was my original article on the city’s loss of the Heritage School lawsuit, which the city initiated, that first stated the issue of race. The Orange County Register could not ignore the fact as it had been published and was circulating widely in the community. I, along with other community bloggers, urged reporter, Elysse James and her editor, to publish the article both on-line and in the OCR print edition. It was, in fact, the city that provided the foundation by alleging harm to children who were forced to attend overcrowded minority-ridden schools, not the school district. In a pleading submitted by the city, the city council alleged:

Elementary school age children who live in the vicinity of the school, including children living in the transitional housing provided at The Village of Hope and the Tustin Family Campus, to date, have been forced to attend overcrowded elementary school in other neighborhoods further away from their homes. But for the Project, those students would be able to attend class at the neighborhood elementary school planned, paid for, and built for their use. These overcrowded elementary schools include W.R. Nelson Elementary, Jeane Thorman Elementary, and Benjamin Beswick Elemenatary. These schools serve predominately minority populations.

Do I think you are a racist, Mayor Nielsen? In your diatribe, you wrongly lashed out at school officials who you say called you a racist. Yet, that is clearly not what Tustin School President Jonathon Ablelove was implying when he called the wording inflammatory. He, along with thousands of others who read this wonder what this paragraph, written by city attorneys and approved by the city council, added to the city’s argument for the lawsuit. If it did  not have racial overtones, if it added nothing to the argument, why was it included?

Quite frankly, Mayor Nielsen, I am disappointed in your response. You could have come to the table and said, “They misinterpreted what we wrote”, or, “What we meant was this…”. You could have apologized for allowing a racially insensitive remark to get past the council in closed session. You could have even asked the city attorney for an explanation. The community would have accepted that and moved on.

Instead, you chose the typical conservative route. You stated your credentials as a fine, upstanding citizen of the community; how you have been involved for 10 years with city politic; how your children have all gone to and graduated from Tustin schools. You even mentioned Nelson Elementary school (mentioned in the pleading as one of those overcrowded schools) and then said, “I don’t care what the papers say, I am not a racist!” Well, the words, “These schools serve predominantly minority populations”, without any further explanation from you as to why they were allowed into an official court document submitted by the city, stand as evidence of the racially insensitive nature of the city council’s attitude.

I would also like to point out another error in  your complaint toward us. You stated that the newspapers, by reference, called the Tustin  Legacy population  racist as well. Untrue. Nowhere in my article on Our Town Tustin or the excellent article written by Elysse James of the Orange County Register, did we allege the citizens of Tustin Legacy to be racist. Again, this must be your conservative logic putting 2 and 2 together to make 5. While I cannot speak for Ms. James, I can certainly tell you that I feel the citizens of Tustin Legacy, who only want to see the school they paid for used for the original purpose, do not feel that way and nowhere in any discussion of the issues has that ever been brought up by or against them.  You speak of inflammatory remarks but, isn’t that what you attempted to do with the citizens of Tustin Legacy in having them believe they were called racist?

No, you and the city council stand alone in this matter.

The overriding tone of your message (besides, ‘I am not a racist’) is one of working together to resolve the issues that have gone on far too long. On this we can agree. Recently, the judge overseeing the original lawsuits in Orange County, continued the case again, this time until January of 2013. One has to wonder about the timing of that. Perhaps the judge is also hoping that, over the next year and possibly with new blood on the city council, cooler heads will prevail and the two entities can resolve this dispute without going to trial. It is not too late, Mayor. You have, by all accounts, an unwinnable situation. You can take that patience, which you espouse, and put it to good use by putting aside partisan politics and resolving this issue.

John, I have met you. We have spoken at length on various city matters. You are an intelligent, thoughtful man who, I think, has the best interest of the city at heart. Your allegiance to Councilmember Amante aside, you make fair decisions most of the time. This is one of those times you need to be your own man and act as mayor of this city. Quit trying to divert attention from this. Own up to it and apologize to the families of Tustin for, what amounted to, a racially insensitive remark that served no purpose whatsoever.


Jeff Gallagher

One Down, One to Go

A blogger’s life can be tough. Besides having to sustain a full time job to feed and house the family, one often has to spend tens of minutes on the phone and hours sifting through public documents, often crammed into a corner of the city clerks waiting room, in order to find out what they don’t necessarily want you to know. By they, I mean of course, our transparent city government. Often, what we find, is so disgusting we wish we  had let it be.

Take for instance, the recent court case between the city of Tustin and Tustin Unified School District. I spent a few days attempting to chase down a rumor that I had heard from one of our readers. After multiple calls and emails to the city, the district and a few of my reliable contacts, I finally procured a copy of the Proposed Ruling, filed with the court on June 27th. A Proposed Ruling is tantamount to a judgment and, in the case of this one, a judgment has been ordered to be written.

To bring you up to speed, we wrote earlier that the city has spent $810,000 on the two lawsuits that were pending between the city and school district. The original lawsuit that TUSD was forced to file to protect themselves from the city’s (read Jerry Amante’s) push to stop construction at various school sites, involved grading permits and whether the school district is required to obtain permits from the city before beginning construction. The City maintains they are responsible for storm water runoff, among other things, and could be fined if the School District did not properly grade the sites before beginning construction. The District maintains they answer only to the state and, while they have previously cleared plans with the city, it was as a courtesy, not as a legal requirement. That lawsuit is scheduled to be heard in Orange County Superior Court later this month.

The second lawsuit was filed in August of last year by the city of Tustin against TUSD in retaliation for temporarily closing Hillview and Sycamore Schools and moving their students, along with some administrative staff from the District Headquarters, to the new Heritage School on the old Tustin Marine Air Base property. There were outcries of foul play by the city, who, in meetings with Columbus Square residents, said the District reneged on their promise to open Heritage Elementary School for its intended use. They claimed there was no traffic study or environmental review before the change was made. Nearly every argument the City made was based on California Environmental Quality Act issues. The claimed issues included higher traffic in the area and degradation of air quality, noise, hydrology and a slew of other items. In fact, it seemed the city’s attorneys threw in everything except the kitchen sink.

From the Proposed Ruling:

The City further argues the alleged activities will have significant adverse impacts on the environment including traffic, air quality, noise, hydrology, water quality, hazardous waste, and incompatibility with the adopted land use plans. The City argues that despite the impacts, the Discrict failed to perform any CEQA review. The City Alleges that the activities are not exempt, and even if the District argues that they were exempt, there are applicable exceptions.

OK, how did the city decide the proposed land use was different from the intended land use? Weren’t both uses as schools? And, it should be noted that TUSD fully complied with all CEQA and EIR requirements prior to building Heritage. In fact, the original reports would have indicated much higher traffic in the area than would have been seen with the school being used temporarily to house other students as the school capacity is over 600 (yeah, kids don’t drive, but their parents do).

But there is another facet to this story.

The Good ‘ol Boys Get Out Their White Sheets and Pointy Caps

According to court filings submitted to the Orange County Superior Court before the change of venue, the City also took the provocative stance of saying that, by not opening Heritage for its intended

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purpose, the District  was forcing students to go to overcrowded schools and inferring these schools were somehow substandard because they serve predominantly minority students.

Elementary school age children who live in the vicinity of the school, including children living in the transitional housing provided at The Village of Hope and the Tustin Family Campus, to date, have been forced to attend overcrowded elementary school in other neighborhoods further away from their homes. But for the Project, those students would be able to attend class at the neighborhood elementary school planned, paid for, and built for their use. These overcrowded elementary schools include W.R. Nelson Elementary, Jeane Thorman Elementary, and Benjamin Beswick Elemenatary. These schools serve predominately minority populations.

Yes, you heard that right. The City said, “We don’t want our kids mingling with the minority riff-raff in those substandard, overcrowded schools. And, while it may not be a far stretch for Amante and his black ops guy, Mayor Nielsen to say something like that (they are Republicans, after all), it is amazing that Al Murray and Beckie Gomez would simply stand by and let this become part of the public record and a significant reason why the City opposed the transfer of students to Hillview. So, now you know just how much Tustin loves their schools.

When Tustin School Board member Lynn Davis was contacted about this he said, “This is completely outrageous and immoral. How could anyone calling themselves a ‘public servant’ of any kind allow such a thing to stand for one day? In stating in effect that schools ‘serving predominantly minority populations’ are not worth attending, they are in fact denigrating nearly every school within the City of Tustin.” We agree. Where was the thinking during closed session where these documents had to have been checked by the councilmembers? Were they too busy looking at their iPads to notice the biased wording of these documents?

Another interesting fact is, a copy of the Petition for Writ of Mandate was served on the TUSD Clerk of the Board on August 12, 2011, the very same day Doug Holland resigned as Tustin City Attorney. Could it have been that he could not dissuade the Council from using such inflammatory language in a public document? At least one person’s conscience may have been working.

For their part, the District took the high road and apparently ignored this issue. They said that, although the specific use had changed, they were within their rights to do so. The use change was brought about by necessity and convenience. It is no secret the Heritage School property was a gift from the Federal Government to be used as a school. At a time when construction was supposed to start, the county was already mired in deep depression and it was not likely there would be enough students to fill the school. Still, the District knew the school had to be built or the Feds would recover the property. It was unfeasible to open the school for its original intended purpose and that is why they chose the route they did. It was a way to keep the buildings in use until such a time as Heritage could be opened as it was intended, an elementary school to serve the families of Columbus Square and surrounding tracts. And the District, in all of its pleadings, covered all its bases.

In its discussion and reasoning for its judgment, the court found that the District satisfied all CEQA requirements through the Administrative Review which contained substantial evidence concerning the basis for exemption:

The AR contains substantial evidence concerning the basis for the exemption. The Notice of Exemption provides a factual description of the Project, and the reasons why it is exempt. (AR 179-182). For instance, the NOE states the temporary closing of the Hillview High School campus and the Sycamore High School/Tustin Adult School campus and the temporary transfer and relocation of students from those facilities to existing classroom space at Heritage Elementary School are statutorily exempt under CEQA section 21080.18 and qualify for a Class 14 categorical exemption under CEQA Guidelines section 15314 because the relocation of approximately 240 students from these two facilities to Heritage Elementary will not increase the original student capacity at Heritage by more than 25% or ten classrooms…”

Further, once the District properly concludes that the Class 14 exemption and/or other enumerated exemptions apply, “the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in CEQA guidelines.

The ruling goes on to say the City had merely concluded that exceptions would apply  but it failed to present what the court said was “substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the exemptions. That was pretty plain and simple. The City, meaning then Mayor, Jerry Amante, went off half-cocked and decided to sue TUSD without any thought toward whether the city actually had a case. And, while doing so, they spent a good chunk of that $810,000 in legal fees on another Amante Folly.

The School District attorneys have been directed to prepare the Proposed Judgment that will close out this portion of the saga. Hopefully, cooler heads (Jeff Parker, this is where you come in) will prevail and no one will do anything stupid like appeal this mess. In fact, what the entire City Council should be doing in one of their near future closed sessions, is to step back from the table, take a deep breath and possibly work toward a resolution with the remaining case. With the court clearly siding with the District and the City Attorney’s shabby legal research, this should be number one on their agenda.

Oh, and maybe they should think about publicly apologizing to every minority family whose kids attend school in the Tustin Unified School District.