Editorial ..................................................................... Page 2

Fraud in High Places .................................................. Page 3

Rent Control Beefs Where Tenants Game Landlord .. Page 4

Appliances Go Missing ............................................... Page 5

The Abandoned Rental Unit ....................................... Page 6

Makes You Go Hmmmmm ......................................... Page 8

Meeting and workshop ............................................... Page 9

LA Story: The Mayor & Mandatory Retrofitting ...... Page 12

Berkeley Rent Board and the Oil Train ..................... Page 12

Services & Businesses ................................................ Page 13

jan2015

Inside this Issue

The Advocate for Berkeley’s Rental Housing Providers

Founded 1980 • Charter Member, California Housing Providers Coalition2041 Bancroft Way, Suite 203, Berkeley, CA • www.bpoa.org

President’s Message

Continued on page 9

In case you missed the Annual BPOA Holiday Dinner, this year it was a great party. We had approximately 120 people attend. In addition, we handed out quite a few awards.

Nancy Friedberg, who is largely responsible for putting together this newsletter and running BPOA on a daily basis, received an award for completing ten great years with BPOA. I am always amazed how, even though Nancy is not a multifamily property owner, she continues to champion our cause as much as anyone else.

Retiring City Council member Gordon Wozniak also received an award from BPOA. Gordon was a council mem-ber who, even when many times the Council would vote against BPOA’s position, he remained in the minority and voted our way. He will be deeply missed on the Council by BPOA and many others.

Michael St. John also received an award for his unrelenting work on behalf of BPOA. Michael knows the rent board and its regulations as well as anyone and has been representing property owners for almost 30 years now.

Ted Edlin also received an award. Ted is someone who is very in tune with City politics and yet doesn’t forget about BPOA, despite all of the other local issues he is involved with in the City of Berkeley. One of his main passions these days is to see that City of Berkeley balances its finances as opposed to just kicking the can down the road, a noble but tough cause to tackle.

Last but not least, the final award went to Kathy Snowden. Kathy has been a long serving board member of BPOA and has tireless energy. In addition, she knows just about everybody and so she is always busy keeping BPOA up to speed and in people’s consciousness.

After the award we moved on to having Mayor Tom Bates as our featured speaker. Tom gave a great talk in which he warned BPOA that we have a target on our back and in order to avoid being hit we need to organize and start to be consciously proactive. As an example, he felt it was time we form a PAC so we can more effec-tively participate in the political process. I think this is some advice we should take to heart. After all, Tom Bates definitely knows a thing or two about politics after doing it for 36 years.

As you read this message the holiday season will be upon us. Please do not forget to inform your residents to move things away from wall heaters so they don’t catch on fire. In addition they should make sure to unplug

january 2015 BPOa MOnTHLy2

WHY GOVERNMENT EMPLOYEE UNIONS ARE UNNECESSARY

BPOA Monthly is a regular publication of the Berkeley Property Owners Association, a trade association dedicated to assisting rental housing providers with upkeep and management of residential rental property

and coping with Berkeley’s rent law.

BPOa 2015

President, Officers & Board of DirectorsSid Lakireddy, PresidentJon Vicars, Vice PresidentEric Kawakami, TreasurerRichard Genirberg, SecretaryKathy Snowden, Albert Sukoff, EditorJim SmithDavid ShamszadWill FlynnPaul Tuleja Office Manger:Nancy Friedberg

Advisor:Greg McConnell

Our Office Location:2041 Bancroft Way, Suite 203 Berkeley, CA 94704Phone 510.525.3666Email bpoa@bpoa.orgWebsite http://www.bpoa.org

Office Hours:12:00 - 3:00 & by arrangement

About the NewsletterOur articles are contributed on a vol-unteer basis by members and other interested parties, although we do ac-cept paid advertising. We are always happy to include material submitted by members and welcome suggestions on how to improve our publication.

All articles in this publication represent the author’s viewpoint and not neces-sarily the position of our organization.

Direct comments and material to our Bancroft Way office or to bpoa@bpoa.org

Albert Sukoff, Editor

Continued on page 11

Some governments allow their employees to affiliate as unions. When this is the case, the government agrees to negotiate with the collective concerning the terms and conditions of employment. Other governments do not permit unions or will not deal with them. While the employees may have an unques-tioned right to affiliate, no government entity has any legal obligation to recognize them unless perhaps a superior level of government mandates such recognition. It is almost universally the option of the government whether or not to deal with its employees in a collectivist form.

The purpose of unions is to redress an imbalance of power where the stronger side is in a position to take advantage of the weaker. Helpless as individuals, groups of workers have the power to compel by withholding essential servic-es from the employer. The ability—however garnered—to disrupt or even to terminate the function of the employer is the essence of the union’s strength.

Any government body which intends to take advantage of an imbalance in power over its employees will never deal with a union. On the other hand, employees of any government body which does not intend to treat its employees unfairly do not need a union. Hence, unions of government employees will only exist in situations where they are unneeded.

During the BART strike, even so clearly a pro-labor politician as Willie Brown recognized that the BART employees were very well compensated and suf-fered under nothing which could be remotely be considered unfair labor practices. He pointed out in his SF Chronicle column that they were probably for the most part significantly better off than their riders.

As the politicians and government labor organizations support each other at the expense of the voters, maybe it’s the voters who are in need of collective representation. They are the ones who seem to suffer to their detriment from an imbalance of power.

If you have any doubt of who controls the compensation package enjoyed by government workers in union-friendly California and, by extension, in Berke-ley, consider this: the ten most highly compensated Berkeley employees each cost the tax payers over $300,000 a year. The City Manager is number ten. The top nine are all police officers. We should be grateful to them for the job they do for us, but three hundred grand?

2015 ANNUAL GENERAL ADJUSTMENT

At its regular meeting on October 20, 2014, the Berkeley Rent Stabilization Board adopted the Annual General Adjustment (AGA) Order for Year 2015 which will allow eligible landlords to increase the 2014 permanent rent ceilings by 2.0%.

january 2015 BPOa MOnTHLy3

Continued on page 10

By Michael St.John, Ph.D.

We know that the RSB—Board and staff alike—is fundamen-tally pro-tenant. That’s to be expected. Wrong, in my view, but expected.

But the events of the past six weeks have revealed in new ways the depths to which the RSB will sink in their one-sided at-tempt to protect tenants—even scamming tenants—from rent increases allowed by Costa-Hawkins or by Regulation 524, the pied-a-terre regulation.

The recent attempt by staff to distort the obvious meaning of their own regulations and of state law is fundamentally wrong. That they have done it in secret—by hiding rel-evant documents from public view, by lying to Board members and the public, and by speaking untruths as if they are true—is doubly wrong and should be stopped.

 This episode reveals the undemocratic ways in which the RSB sometimes operates. Following the letter but not the spirit of the law, the RSB staff and Board are engaging in what might in another context be called racketeering. That they can get away with it reveals that the way the RSB is structured is fundamentally undemocratic. The Board mem-bers are elected. The electorate is predominantly pro-tenant. Property owners are a tiny, disfavored minority. No wonder most Board members are pro-tenant.

The pro-tenant Board then hires a pro-tenant director, who in turn hires pro-tenant staff members. It is a conspiracy of sorts. All of these people are civil servants. Civil servants are supposed to be impartial. They are supposed to apply the law even-hand-edly. Tenants have legitimate interests. Property owners have legitimate interests. The purpose of the rent law is to protect the interests of both owners and tenants. Unfortunately, some Board and staff members seem to forget this.

 I have been writing articles for the past two years about tenants who game the system—tenants who attempt to retain their rent discount when they live elsewhere, use their unit for storage, as an office, or as a pied-a-terre, or sublet their rent-controlled unit to others, sometimes making a profit. These cases can get quite contentious. Tenants hide the truth, and sometimes lie directly, about where they live. We then do investigations, sometimes involving private investigators, to try to discover the truth. We ask pressing questions at hearings. Tenants and their attorneys often play “hide the ball”. Hearing examiners do little or noth-ing to level the playing field. Too often, the hearing examiners themselves reveal pro-tenant bias both at hearing and in their decisions.

When we discover at hearing that tenants really are living at the property, we drop the case. When it is unclear, the hearing examiner decides. Sometimes we win these cases, sometimes we lose. That’s to be expected. Sometimes we or the tenant ap-peals the decision. Sometimes we win on appeal, sometimes we lose on appeal. That’s to be expected too. If a party is dissatis-fied with the decision on appeal, that party can take the case to court. That’s the system. These cases are often messy, but this is the system. It’s imperfect, but everyone gets his or her day in court. Everyone can present their evidence. Everyone can ap-peal if they wish to.

Early this fall, RSB staff decided to intervene in this system to further protect tenants from rent increases allowed under the pied-a-terre regula-tion or by Costa-Hawkins. It seems that staff wanted to prevent property owners from bring-ing cases against tenants who don’t live there. It seems that staff wants tenants to be able to retain the rent discount even when tenants live elsewhere.

I don’t understand why staff would do this. Why would staff want to protect tenants who game the system? Why would staff want to protect tenants who hang on to a rent-controlled unit when they don’t actually live there? Why would staff or the Board want to protect tenants who lie under oath at hearing? Or protect tenants who, by subletting their rent-controlled unit for more than the lawful rent ceiling, make an illegal profit while living elsewhere?

  Some people have suggested that individual staff members must gain personally by doing this. I don’t think so. I think it is ideological. I think some staff members are so embedded in a tenant-protection mentality that they can’t distinguish between legitimate and illegitimate tenant protections. These staff mem-bers are so ideologically off-balance that they lose their moral compass, losing the ability to tell right from wrong. Some staff members, attempting to rig the system so that tenants more consistently win these battles, act in secret, unethical, undemo-cratic ways.

  Here’s what happened this Fall: staff, without seeking pub-lic input or notifying property owners or the public, drafted amendments to Regulations 524 and 1018 that basically said that tenants who were gaming the system would win, almost al-ways. The amendments revised Regulation 524 and interpreted Costa-Hawkins such that tenants would be able to live else-where, essentially forever, and retain their rent discount. The proposed changes prohibited property owners from introducing evidence proving that tenants were living elsewhere.

Why would staff or the Board want to protect tenants

who lie under oath at hearing?

january 2015 BPOa MOnTHLy4

Continued on page 11

Real estate attorney Elizabeth Erhardt has an incredibly unpopular outlook. She’s sympathetic to San Francisco landlords.

And before being drowned out by a chorus of boos and hisses, she asks that you consider the lawsuit she just filed for her clients, Jane Chavez and her brother Tom Bogdan.

They inherited a rent-controlled triplex on 20th Street in the 1970s, and Jane, a retired dance instructor and single parent, took over management in 2010. It’s her sole source of income.

Sublet on the sly In 2009, two brothers, George and Dwight Tran, rented one of the units and claim it’s their primary residence. However, the suit alleges, not only does neither brother live there, but they’ve sublet the apartment more than once without Chavez’s permission. In addition, the suit says, they are not only charging enough to cover their rent, they’re making a profit.

When we reached Dwight Tran, he said, “I am actually not going to comment on anything in that suit.”

The Trans are not exactly starving artists. According to the suit, Dwight earned a BA from Stanford in 2006 and a master’s from Yale in 2013. The suit says he now works for a hedge fund in Connecticut, where he owns a condominium. George graduated from UCLA in 2008, earned a law de-gree at Hastings College and worked for the San Francisco district attorney’s office. The suit says he now works for the Sonoma County district attorney’s office.

“Dwight and George are highly educated, white collar pro-fessionals,” Erhardt wrote in the filing, “with post-graduate degrees from prestigious institutions. They come from an affluent family and have enjoyed all of the benefits afforded the wealthy in society.”

So why are they going to such lengths to hold on to a rent-controlled apartment? Because it is just too good to pass up.

“It is actually more common than people think,” says Brook Turner, executive director of the Coalition for Better Hous-ing, which was formed in 1979 to fight rent control. “With rent control, long-term tenants who enjoy smaller rent sometimes look for an opportunity to continue and make money. Very often rent control ends up lining the pockets of wealthier tenants.”

Oh come on, you say. Subletting without the landlord’s permission is illegal. Just toss them out.

It’s not that easy. The Trans still insist the apartment is their primary residence and are fighting eviction. What’s more, one of the sub-leasers has demanded a payment of $40,000 to vacate. That’s when everyone called their law-yers.

“You end up trying to prove a negative — that they really don’t live there,” said Delene Wolf, executive director of the city’s Rent Stabilization Board.

The landlord must prove conclusively that the tenant is not using the unit as a primary residence, which can be tricky. Erhardt hired a private investigator to check on the Trans, but there are always questions about how much time con-stitutes “full-time” residency.

‘Many, many cases’ Also, if the tenant has subleased the unit without the land-lord’s approval, the landlord can raise the rent to market rate under the state Costa Hawkins Rental Housing Act.

But seriously, how often does this happen?

“I can show you many, many, many cases where tenants are making money off their rent-controlled property,” Erhardt said. “Individuals who are not in need are capitalizing on the system and putting nothing back.”

Erhardt says she had a case where the original tenant was paying $19 a month for his apartment because he’d in-stalled sub-leasers to pay most of the way.

Then there was the waitress who worked two jobs to stay afloat, then inherited a house she wanted to live in. But the tenant, a stockbroker, told her he would hire a lawyer, drag out proceedings and bleed her financially.

“She ended up having to pay the stockbroker to leave,” Erhardt said. “And I can tell you he drove a much nicer car than she did.”

Critics say these are just a few anecdotal examples. But if subleasing fraud is so widespread, why don’t we hear more about it?

“There’s no way to tell how common it is,” said Janan New, executive director of the San Francisco Apartment Associa-tion, which represents property owners. “There’s great value in those rent-controlled units.”

The original lease holders have a sweetheart deal, using sub-tenants to pay their rent, but the subtenants also have an incentive. With rent control, they still have a low monthly payment. Everybody makes out, except the landlord.

C.W. NEVIUS On San Francisco

january 2015 BPOa MOnTHLy5

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By Amy Julia Harris and Corey G. Johnson, Center for Investigative Reporting, December 14, 2014

The Richmond Housing Authority bought the stove new for $282 in August 2007 from General Electric Co. It was delivered by truck several days later to the maintenance warehouse and, authority records say, it was installed in the apartment that November. The agency said it trashed the old stove at the city dump. But nearly five years later, the old stove was still in that corner apartment, records show, even though it should have been rusting in the landfill. The new one was nowhere to be found.

A missing stove might sound like a mundane problem, but it’s part of a disturbing trend: New stoves and refrigerators are disappearing mysteriously throughout Richmond’s troubled public housing projects. The agency uses public money to buy appliances for hundreds of poor, elderly and disabled residents who desperately need them in these run-down and neglected build-ings.

But more than a quarter of the new appliances in the Housing Authority’s inventory — 167 of the 598 stoves and refrigerators purchased for residents — have vanished in the past eight years, the Center for Investigative Report-ing has found. The missing appliances cost more than $53,000.

The stoves and refrigerators were bought by the Housing Authority and de-livered to its maintenance office, records show. But then they disappeared in one of two ways. The agency never entered most of them into the inventory system, and there are no records showing that the appliances were installed. For a small subset, records say the appliances went to specific housing units, but a CIR review found that residents never received them.

“This is extremely disconcerting,” said Bill Lindsay, Richmond’s city manager. “We need to discover if this is sloppy record keeping or a problem that’s much worse.”

Debra Holter, the agency’s asset specialist who oversees the maintenance department, made most of the appliance purchases, according to records. For years, she bought all the appliances and was in charge of recording them into the inventory system. She controlled which items were installed and which residents received them. And she was in charge of verifying that her own paperwork was correct. Holter is being investigated by the Richmond Police Department after CIR reported that she helped her husband get work from the Housing Authority. It is a crime for a public official to give government contracts to family members.

Sixteen years ago, soon after Holter joined the Housing Authority, she and her husband got into trouble for running a used appliance business out of their San Pablo home. Nathaniel Powers, a former Contra Costa County code enforcement official, found about 30 stoves and refrigerators stacked in Holter’s garage and another 100 appliances crammed in the backyard.

“It obviously had the appearance that someone was selling appliances there,” Powers said. “The carport was filled with appliances.”

Holter did not respond to questions, saying she was under a gag order from Richmond’s city manager. Holter is on paid administrative leave. She made $81,000 in 2013, with about $18,000 of that in overtime, according to city records.

[This article has been abridged—Ed.]

january 2015 BPOa MOnTHLy6

State of California CONSUMER AFFAIRS and ENVIRONMENTAL PROTECTION DIVISION

Jon VicarsRealtor

Over 25 years selling Berkeley Apartments

BPOA member since 1982(510) 898-1995 • jon.vicars@svn.com

There are some occasions when a tenant will leave the rental unit without paying rent and without taking be-longings. If the rent goes unpaid and you think that the rental has been abandoned, you may enter the unit and proceed to clean up. Inspect the premises to determine whether or not the property has been abandoned:

Is the refrigerator empty or has most of the food spoiled? Has electricity and telephone service been cut off? Check the closets and see if there is clothing left behind.

If the landlord determines that the unit has been aban-doned, he/she may then take possession and proceed to prepare it for rerenting. The landlord is advised to follow the formal procedure outlined in Civil Code 1951.3 which requires waiting 14 days and then notifying the tenant of the suspected abandonment.

A copy of Notice of Belief of Abandonment is provided below. For how to deal with property left in a rental unit, please refer to Abandoned Personal Property.

California Civil Code Section 1951.3(a) Real property shall be deemed abandoned by the les-see, within the meaning of Section 1951.2, and the lease shall terminate if the lessor gives written notice of his belief of abandonment as provided in this section and the lessee fails to give the lessor written notice, prior to the date of termination specified in the lessor’s notice, stating that he does not intend to abandon the real property and stating an address at which the lessee may be served by certified mail in any action for unlawful detainer of the real property.

(b) The lessor may give a notice of belief of abandonment to the lessee pursuant to this section only where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the lessor’s notice and shall be not less than 15 days after the notice is served personally or, if mailed, not less than 18 days after the notice is deposited in the mail.

(c) The lessor’s notice of belief of abandonment shall be personally delivered to the lessee or sent by first-class mail, postage prepaid, to the lessee at his last known ad-dress and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to such other address, if any, known to the lessor where the lessee may reasonably be expected to receive the notice.

(d) The notice of belief of abandonment shall be in

substantially in the following form you can download at: http://www.thelpa.com/lpa/landlord-tenant-law/califor-nia-abandoned_property.html

 (e) The real property shall not be deemed to be aban-doned pursuant to this section if the lessee proves any of the following:

(1) At the time the notice of belief of abandonment was given, the rent was not due and unpaid for 14 consecutive days.

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, of itself, justify a finding that the lessor did not reasonably believe that the lessee had abandoned the real property.

(3) Prior to the date specified in the lessor’s notice, the lessee gave written notice to the lessor stating his intent not to abandon the real property and stating an address at which he may be served by certified mail in any action for unlawful detainer of the real property.

(4) During the period commencing 14 days before the time the notice of belief of abandonment was given and ending on the date the lease would have terminated pursuant to the notice, the lessee paid to the lessor all or a portion of the rent due and unpaid on the real property.

(f) Nothing in this section precludes the lessor or the

Continued on page 7

january 2015 BPOa MOnTHLy7

Continued from page 6

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lessee from otherwise proving that the real property has been abandoned by the lessee within the meaning of Sec-tion 1951.2.

(g) Nothing in this section precludes the lessor from serving a notice requiring the lessee to pay rent or quit as provided in Sections 1161 and 1162 of the Code of Civil Procedure at any time permitted by those sections, or affects the time and manner of giving any other notice required or permitted by law. The giving of the notice pro-vided by this section does not satisfy the requirements of Sections 1161 and 1162 of the Code of Civil Procedure.

California Civil Code Section 1951.4(a) The remedy described in this section is available only if the lease provides for this remedy. In addition to any other type of provision used in a lease to provide for the remedy described in this section, a provision in the lease in substantially the following form satisfies this subdivi-sion: “The lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or as-sign, subject only to reasonable limitations).”

(b) Even though a lessee of real property has breached the lease and abandoned the property, the lease continues in effect for so long as the lessor does not terminate the lessee’s right to possession, and the lessor may enforce all

the lessor’s rights and remedies under the lease, including the right to recover the rent as it becomes due under the lease, if any of the following conditions is satisfied:

(1) The lease permits the lessee, or does not prohibit or otherwise restrict the right of the lessee, to sublet the property, assign the lessee’s interest in the lease, or both.

(2) The lease permits the lessee to sublet the property, assign the lessee’s interest in the lease, or both, subject to express standards or conditions, provided the standards and conditions are reasonable at the time the lease is executed and the lessor does not require compliance with any standard or condition that has become unreason-able at the time the lessee seeks to sublet or assign. For purposes of this paragraph, an express standard or condi-tion is presumed to be reasonable; this presumption is a presumption affecting the burden of proof.

(3) The lease permits the lessee to sublet the property, assign the lessee’s interest in the lease, or both, with the consent of the lessor, and the lease provides that the consent shall not be unreasonably withheld or the lease includes a standard implied by law that consent shall not be unreasonably withheld.

(c) For the purposes of subdivision (b), the following do not constitute a termination of the lessee’s right to pos-session:

(1) Acts of maintenance or preservation or efforts to relet the property.

(2) The appointment of a receiver upon initiative of the lessor to protect the lessor’s interest under the lease.

(3) Withholding consent to a subletting or assignment, or terminating a subletting or assignment, if the withhold-ing or termination does not violate the rights of the lessee specified in subdivision (b).

january 2015 BPOa MOnTHLy8

QUOTES OF THE MONTH

The theory of Communism may be summed up in one sentence:

Abolish all private property.

Karl Marx

Government has no other end, but the preservation of property.

John Locke

I.I was sitting in the lobby of a local government office waiting for my turn to be subject to the whims of the bureaucrarti. Rather than waste the time, I tried to make a phone call while I waited. I was talking in a decidedly quiet voice only to be admonished from behind the counter that the lobby was a No Cell Phone Zone. As my admonisher was many feet from me, her voice was loud enough to be heard across the room. As I hung up my cell phone, she picked up her office phone to make a phone call. Hmmmmmm — ed.

II.I was sitting in the same lobby of a local government office a week later again waiting for my turn to be subject to the whims of the bureaucrarti. Rather than waste the time, I looked for something to read. Only reading material available was a couple of 500-page novels. Made me go hmmmmmm — ed.

january 2015 BPOa MOnTHLy9

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Join us on Saturday, January 10th for our first meet-ing and workshop of the year. To start the year off we will conduct our annual general meeting where we elect new members for the BPOA Board of Directors. Do you want to help set our agenda or just be on the front lines of political changes in Berkeley and how they impact your business? Join the board! Immediately following, Jonathan Weldon will help us Stop Worrying about the Rental Housing Saftey Program and take an infomed look at your property and keeping it habitable and safe. We will wind up with Legal Updates and Q and A with Berkeley Landlord/ Tenant attorney, Michael Sims. We hope to see you there. There is just too much information to miss. It’s free, it’s fun and you always learn something. Refreshents available at 9:30am , the business starts at 10am. We will be in the fireside room at St. John’s Presbyterian Church, 2727 College Avenue, Berkeley, CA 94705. Parking is available in the church lot.

Continued from page 1

everything before they leave on any trips. In my property management experience, the majority of apartment fires occur during this time of year and it is usually because people do something like leave a space heater on and go on vacation. Space heaters draw a lot of power and can burn an old circuit quite quickly. Ten-ants should also be conscious of issues with candles, Christmas lights with extension cords, power bars, etc.

Another common occurrence I have noticed over the years is that thieves like to case buildings this time of year because during the holiday season there is less traffic in and out of these buildings, so you should warn your residents to be aware of this and to make sure all their windows and doors are locked before they leave.

Finally on behalf of BPOA and myself I would like to wish you and your loved ones a happy holiday season and happy new years. Until next year…

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january 2015 BPOa MOnTHLy10

Continued from page 3

Staff made up the new interpretation, not present in either Regulation 524 or Costa-Hawkins, that “intent” could be con-sidered. That a tenant intended to live at the Berkeley apart-ment would be considered as proof that a tenant did live at the Berkeley apartment. Never mind that intent is not mentioned in the rent law, in Regulation 524, or in Costa-Hawkins.

  Staff’s recommendations would have limited the evidence property owners could bring. The recommended changes would have prevented property owners from bringing evidence of past absences from the rent-controlled unit. Staff was trying to stack the deck, making it impossible for property owners to introduce relevant information in hearings. Property owners would be cut off at the pass by these changes. Tenants who scammed in the past would get off scot free.

We brought to staff’s attention that the Board could not change Regulation 524 because that regulation was a condition of the settlement agreement of a lawsuit against the Board by the BPOA. The settlement agreement said that the Board could not change the regulation in the future. It said that should a legal challenge be brought following the amendment of Regulation 524, the Board was obligated to defend the original Regulation in court. That stopped them.

  Abandoning the regulation change, staff, over a November weekend, drafted a “Resolution” to replace the prohibited regu-lation change. Despite emphatic protests by BPOA members, the Board passed the resolution, without much debate and without change, the following Monday. There are many things wrong with the resolution:

• It was passed without discussion by the relevant committee and without advance public notice.

• The Resolution says that Regulation 524 was enacted to preserve the affordability of rental housing, whereas this was not the purpose of the regulation.

• The use of a resolution in place of a regulation attempts an end-run around the prohibition in the settlement agreement.

• The Resolution blames property owners for making these cases contentious, whereas these cases actually become contentious because tenants fail to tell the truth and because hearing examiners don’t insist that the truth be told at hearing or that the factual record be complete.

• The Resolution says, falsely, that Board staff has always used the date of the initial hearing as the relevant date to determine whether someone qualifies as a “tenant in occupancy”.

• The Resolution rules that the date of the initial hearing shall be the relevant date, meaning that tenants who live elsewhere can, between the petition date and the date of hearing, rush back to occupy the unit, thereby presumably retaining the rent discount to which they have no right.

• Staff failed to give Board members and the public copies of the memoranda which justified the regulation on passage in 2003, a serious breach of democratic process.

• Most annoying, the resolution states a falsehood: That the foregoing is a recitation of how the Board has always interpreted and applied Regulations 524 and 525.

Saying something is so doesn’t make it so. There is absolutely no evidence that the date of hearing has been consistently used as the determining date. To the best of my knowledge there is only one case in which this issue was addressed explicitly. The hearing examiner ruled in that case that whether or not the tenant was living there on the hearing date was irrelevant in the face of substantial evidence that the tenant had not lived there for many previous years.

The Resolution should be rescinded. It probably won’t be, but it surely should be. It is filled with false statements. It is a black mark on the face of the Board, a demonstration of the fact that the RSB is operating outside the bounds of standard democratic procedure.

The 19th century political advisor to British Prime Minister Gladstone, Lord Acton, most famous for having said that “Power corrupts and absolute power corrupts absolutely”, also said “The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections”. We have seen a lot of this in national elections in recent decades. Now we are seeing this locally, in the operation of our own Rent Stabilization Program.

Michael St. John is a property management consultant who has assisted Berkeley property owners with tenant and rent control problems for 35 years. A Rent Board Commissioner at the begin-ning of rent control in 1981-83, Michael has championed property owners ever since, attempting to bring balance to a fundamentally biased system of control. He can be reached at msjetal@pacbell.net, 707-937-3711, or 510-845-8928.

january 2015 BPOa MOnTHLy11

Continued from page 2

  TOP TEN COMPENSATION PACKAGES – CITY OF BERKELEY

Job Title Regular Pay Overtime Pay Other PayTotal

BenefitsTotal Pay &

Benefits

POLICE LIEUTENANT $159,939.00 $25,105.79 $53,355.02 $100,618.07 $339,017.88

POLICE SERGEANT $133,244.28 $77,554.04 $38,799.69 $86,035.72 $335,633.73

POLICE CAPTAIN $183,350.44 $0.00 $33,669.70 $103,446.08 $320,466.22

POLICE CHIEF $205,400.00 $0.00 $5,800.00 $105,435.68 $316,635.68

POLICE CAPTAIN $183,350.44 $0.00 $28,921.43 $103,879.17 $316,151.04

POLICE LIEUTENANT $159,939.00 $5,767.03 $45,103.22 $97,314.23 $308,123.48

POLICE SERGEANT $133,244.28 $43,337.74 $43,037.26 $87,121.74 $306,741.02

POLICE LIEUTENANT $159,939.00 $27,566.38 $26,039.70 $91,512.60 $305,057.68

POLICE CAPTAIN $183,350.44 $0.00 $25,135.61 $93,382.23 $301,868.28

CITY MANAGER $224,999.84 $0.00 $0.00 $76,802.03 $301,801.87

Source: http://transparentcalifornia.com/

continued from page 4

And when you factor in short-term rentals, like Airbnb, there’s a whole new layer of potential deception. Sara Shortt, execu-tive director of the San Francisco Housing Rights Committee, is no friend to landlords, but she worries that the Airbnb law just signed by the mayor leaves things wide open for abuse.

Technically, tenants can rent their unit only for short-term leases for 90 days. But Shortt, who worries about the rental housing stock, is concerned. Long considered the “golden ticket,” a rent-controlled apartment is now even more valu-able.

“I am so skeptical of enforcement,” she said. “Nobody’s watch-ing to see if it is more than 90 days. Because this is a new way to make money off a rental property, people are taking advantage. That’s how they are using their golden ticket. It is actually more onerous and complicated.”

There’s a theme there. A simple concept, rent-controlled apart-ments for those who need a financial break, has become as Byzantine as the tax code.

‘Just a hot mess’ “Rent control was enacted in 1979,” said New. “The law has

been changed, like, 72 times since then. It‘s just a hot mess. It is very complicated for tenants and landlords to navigate, and it basically encourages both sides to game the system.”

There are some suggestions to cut down on the abuse. One is to tie rent-controlled units to income. If you make more than a fixed amount, you’ll have to pay market rate.

Good luck with that in a city where some 60 percent of the voters are renters. There’s little incentive to crack down on short-term rentals and even less to cut out illegal sub-leasers. And if a landlord tries, there’s almost certainly going to be a lawsuit, because — as we know — landlords are vicious, greedy people.

“It’s the haves against the have-nots,” Erhardt said, “and every tenant attorney thinks they are Robin Hood.”

You are now free to boo Erhardt. But first, give what she said some thought.

C.W. Nevius is a San Francisco Chronicle columnist. His columns appear Tuesday, Thursday and Saturday. E-mail: cwnevius@ sfchronicle.com Twitter: @cwnevius

january 2015 BPOa MOnTHLy12

by Tom Lochner, Contra Costa Times

BERKELEY -- Crude oil transport by rail through East Bay communities will be discussed by the Berkeley Rent Stabili-zation Board at Is next meeting. A draft resolution opposes a proposal by Phillips 66 to bring crude oil from outside the state to its Santa Maria refinery in San Luis Obispo County. The purpose of the resolution is to pre-empt “the possible destruction of affordable housing in Berkeley from an explosive and destructive derailment ... as the trains pass through Berkeley.” The Santa Maria plant together with one in Rodeo form the Phillips 66 San Francisco Refinery.

Under the Phillips 66 proposal, currently under review by San Luis Obispo County, five trains a week, each with 80 tank cars carrying a likely cargo of Canadian tar sands

oil, would unload at the Santa Maria plant. There, the oil would be pre-refined, then being piped north to the Rodeo plant for final processing into gasoline, diesel and jet fuel. Possible routes to Santa Maria include the Amtrak Capitol Corridor along San Pablo and San Francisco bays.

“If the crude-by-rail project is approved, these dangerous ‘bomb trains’ will roll through many California communi-ties each day, including northern and western shorelines of Alameda and Contra Costa Counties,” the draft resolution reads. “This project will put many communities at risk of accidents and spills, threatening our air, water, health and Berkeley’s rent-controlled housing stock.”

[The implications of a Mars mission on affordable Berkeley rental housing is scheduled for discussion early next year. Ed.]

BERKELEY RENT BOARD TO DISCUSS EFFECTS OF OIL BY RAIL THROUGH EAST BAY CITIES

Los Angeles Mayor Eric Garcetti on Monday proposed the most ambitious seismic safety regulations in California histo-ry that would require owners to retrofit thousands of building most at risk of collapse during a major earthquake. Garcetti’s recommendations target two of the riskiest types of build-ings in Los Angeles built before 1980: concrete buildings and wooden structures built atop weak first floors, such as those on top of carports and garages and supported by slender col-umns. Thousands live and work in these buildings every day, and seismic officials have warned of hundreds of deaths across Southern California if nothing is done to strengthen these buildings before a large earthquake hits again. While the cost is high, the cost of doing nothing could hobble Los Angeles’ economy for many years, Garcetti said. And a crippling of Los Angeles would have national consequences, damaging the home of the largest container and cargo port in the nation, according to a report released by the mayor and U.S. Geologi-cal Survey seismologist Lucy Jones, who has been acting as Garcetti’s science advisor on this effort.

“The time for retrofit is now,” the mayor said, adding that the retrofits target buildings “that are known killers. Complacen-cy risks lives; one thing we can’t afford to do is wait.”

The mayor’s move follows a Times report last year that found, by the most conservative estimate, that as many as 50 of the more than 1,000 old concrete buildings in the city would col-lapse in a major earthquake, exposing thousands to injury or death. Concrete buildings have collapsed or have been severely damaged in past earthquakes, such as the Olive View hospital in Sylmar in 1971 and a Kaiser Permanente building in 1994. More than 130 people died when two concrete buildings col-lapsed in the 6.3 magnitude earthquake that struck Christ-

church, New Zealand, in 2011. As many as 8,000 people could be in commercial concrete buildings that suffer partial or total collapse if a 7.8 earthquake strikes the San Andreas fault in Southern California during office hours.

Los Angeles officials have known about the dangers of these buildings for decades, but concerns about costs killed ear-lier efforts in L.A. to identify and order property owners to retrofit their buildings. Many owners have said they shouldn’t have to pay for expensive fixes on their own. Some organized owner groups have been lobbying City Hall that if a manda-tory ordinance is approved, that owners can be helped by low-interest loans, tax breaks or other incentives. Tenant advocates have expressed concern that they would shoulder the cost, even those on rent control, despite already living in a high-cost city. The mayor offered some suggestions, such as business tax breaks for those who retrofit buildings; a five-year exemption from the city’s business tax for firms that move into newly-retrofitted buildings; and helping owners of wooden buildings get access to private lenders. The mayor also suggested discussion on whether there needs to be any additional measures to protect low-income tenants.

Los Angeles was once a leader in seismic safety. In the 1980s, it was one of the first cities in California to require retrofit-ting of brick buildings, a vulnerability discovered after the devastating 1933 Long Beach earthquake. Out of about 8,000 buildings, all but three have been retrofitted or demolished after a 1981 law. In some cases, Los Angeles officials had to go to court and threaten to label a building as unsafe, barring anyone from being inside. Seismic experts lauded the success of the law. As a result of the retrofitting, no one died from brick building damage in the 1994 Northridge earthquake.

by Rong-Gong Lin II, Rosanna Xia, Los Angeles Times, December 8th, 2014 [abridged]

january 2015 BPOa MOnTHLy13

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