.
News Alert
Shooting in Busy Richmond Target Parking Lot…

View: Kensington Board's Failure to Disclose Information

Kensington resident Jan Behrsin offers this guest column as an "open letter" to the Kensington's governing board, saying his attempts to obtain information on the board's authorization of legal expenses have been thwarted.

On October 30, 2012, the Contra Costa Times endorsed Kosel and Hausken for the two open positions on our community services district board. 

In giving its reasons for that endorsement, the Times says: “Currently, public information is withheld and the board has failed to control employee benefit costs” and that the current atmosphere is one of “the systemic secrecy.” The editorial goes on to say of Charles Toombs, the council’s president: ”Amazingly, Toombs insists he's running an open government. But he confuses letting people speak at meetings with providing them public information to which they're entitled. His attitude is part of the problem. He doesn't deserve another term.”

I am writing this open letter to my local government agency, the Kensington Community Services District. I have tried many times, through Public Records Act requests and requests for information, to obtain the information publicly requested here, and have been met with silence. I have been informed that Mr. Toombs, whose legal authority appears to be limited by our agency’s own Policy and Procedures rules to conducting meetings of the agency (see below), has instructed the agency that all legal matters are under his control and the control of the village police chief.

(Lipscomb, Metcalf, Lloyd, Toombs, and Kosel are the 5 elected members of the government agency; Rauch is Board of Supervisors District I Co-ordinator and on Supervisor Gioia's staff; Kurt Franklin is an attorney with Hanson Bridgett, which provides legal services to our government agency.)

To: 'LINDA LIPSCOMB' ; 'Mari Metcalf' ; Kate Rauch ; 'Richard Lloyd' ; charles toombs ; 'Kurt A. Franklin' ; Cathie Kosel

Sent: Tuesday, October 30, 2012 1:41 PM

Subject: Re-iteration of Prior Requests for the Board to Clarify Matters of Community Services District "Authority"

Dear Community Services District Board:

Since the Board has failed to answer my very simple inquiries on the matter of “authority,” I am sending this inquiry also to my local government agency's legal counsel.

Who is it is that has the authority to engage attorneys at community expense? Our agency's employee, Mr. Harman, recently sent out a long document with copies to several attorneys, including 2 at the excellent firm of Hanson Bridgett. Who will pay for them to read Mr. Harman's document? I have many times asked the board for a copy of the engagement letter between the Board and the Hanson Bridgett law firm so that we publicly can learn who it is that has the authority to engage attorneys at community cost – is it the local agency? Is it Mr. Harman? Is it Mr. Toombs as the head of the Board? I have reviewed the Board’s own policies and procedures and find that under section 4040.11 Mr. Toombs, as President of the local agency, “shall serve as chairperson at all Board meetings”…”and shall have the same rights as the other members of the Board…” I have asked the Board in writing to let me know whether there are any other Board policies or procedures which would give the President of the Board any rights superior to the rights of the other Board members, and have received no reply. QUESTION: Does the President of the Board of the Kensington Community Services District have any rights or authority other than as specified in section 4040.11 of the Board’s Policies and Procedures? If so, under the Public Records Act, I respectfully request a copy of the statement of those rights or authority?

Mr. Toombs' public statements suggest that Mr. Toombs is reluctant to have the Board exercise responsibility over its employees for fear that if the Board did so, such employees may bring legal action against our government agency. Nevertheless, the local government agency’s employee, the part-time police chief, seems to have the authority to engage our local government's own legal counsel – at our expense – to read (and prepare?) his communications. QUESTION: What is the basis of the apparent authority for the Kensington part-time chief of police to hire legal counsel at the expense of the community?

As a related matter, I have read in the press that our part-time police chief hired a criminal defense attorney to represent him. I received a communiqué from the part-time police chief which shows that as recently as this month, he is in correspondence with this attorney. QUESTION: Does the community pay for the attorney engaged by our police chief to represent him? If so, what is the authority for the Board to authorize such payment?

I recently met with Kensington friends who are major supporters of Mr. Toombs. We discussed the dysfunctionality of the administration of our village. I suggested that it might be to the advantage of all of us to make sure that legal counsel was present at Board meetings to advise on matters involving legal rights and authority so that issues could be addressed as they came up and before they became conflicts spreading throughout the community. My friends told me that Hanson Bridgett attorneys are present but only sometimes, “as to have them there for all meetings would be too expensive.” QUESTION: Who determines whether and when the Kensington Community Services District will be represented by legal counsel?

The protocol for payment of bills for legal services is generally that monthly billing statements from providers of legal services are presented to the agency for review and approval for payment. The agency reviews them to make sure the services were authorized, and then, if appropriate, approves payment. I understand that in Kensington the local government’s legal bills are received, reviewed, and approved by its police chief, rather than by the Board.

QUESTION: If this understanding is correct, how does the Board know what services have been performed, or who authorized them, or that the agency’s budget for legal services is not exceeded? I have made several Public Records Act requests for a copy of the engagement letter between my local government agency and legal counsel. This would inform who it is that is purporting to have the authority to engage lawyers at our public expense. The local agency has never replied.

QUESTIONS: What is the Board's policy for authorizing legal fees? Who paid the legal fees for the defense of the police chief? Who pays the legal fees of his defense counsel's reading of the police chief's communiqués? Surely it cannot be left to the police chief to authorize the government’s payment of his own defense counsel. What are the rules, policies, and procedures applicable for the local government to authorize the payment of legal fees?

I have also several times requested the agency’s bylaws describing the authority of the board members, including the position Mr. Toombs’ holds. Mr. Toombs seems to have full authority to act on behalf of the local government agency. I do not find in the local government’s policies and procedures a basis for such authority. The only policy and procedure I find regarding the authority of person in the position held by Mr. Toombs is at section 4040.11, discussed above.

QUESTION:  If that is correct, then what is the basis for Mr. Toombs authority to act on behalf of the local government agency?

Respectfully submitted,
A. Jan Behrsin, attorney and Kensington resident

John November 01, 2012 at 02:31 PM
While i am all for free speach, I am getting really tired of all this back and forth. I already know who is going to post in response to this and what they will say. I want to be the first to say that I wil be happy next week when this election is over.
anna shane November 01, 2012 at 03:44 PM
I guess we were relying on our elected officers to be ethical, we didn't have any rules in place to hold them accountable, and there are no rules in place that hold our police chief accountable. So, he can fire and bully and get rid of anyone on his force who is ethical? This is a big scandal for our little town. No wonder the West County Times named us dysfunctional, and told us why and also told us our named "troublemaker" Cathie Kosel has actually been on the side of citizens (to her personal jeopardy). Thanks to Chuck, and Bruce Morrow, and I am sorry to say Vida, very sorry to say Vida, there has been a campaign of verbal smearing against a very nice person, so much that you hear people say terrible things. Once her son was approached by a Chuck/Pat person and he identified himself as Cathie's son, and the fellow said "you're mom is a piece of work." This is ugly, it is surly not the town I first lived in 40 years ago. They're children, 7th graders, but dangerous and destructive ones. I hope they have gone too far and their claims are no longer slightly plausible.
LONG TIME RESIDENT November 01, 2012 at 03:45 PM
Dear John: Please consider, even "when the election is over." We like living in our little village because it has been a quiet thoughtful place where neighbors traditionally take care of one another without being too obvious about it. We like to "live and let live." But, it seems that things have changed a lot over the many decades I have lived here and raised a family here, and that this "live and let live" attitude might have led us to a point at which we have abdicated responsibility for thoughtful governance. Perhaps we have become a bit too complacent. Perhaps even apathetic, assuming that our Board would take responsibility so we would not have to. Maybe we ought to reconsider this assumption and in a thoughtful way, request more information and more accountability from our "public servants." The term “public servant” presupposes a working social contract between us as the source of authority and those servants to whom we have delegated and entrusted our confidence to govern. This social contract is based on the mutual understanding that those "servants" have been given our trust, and have as their sole responsibility, serving our interests as the little "public" of 2200 families. We will get information and accountability from our officials only if we demand it. The responsibility that rests with us is to be more active and vigilant, and that responsibility includes demanding greater transparency and accountability of those we have entrusted with governance.
Leonard Schwartzburd, Ph.D. November 01, 2012 at 05:21 PM
John, I too will be happy when this election is over if Cathy Kosel and Jim Hausken win and the editorial endorsement of them by the CC Times prevails. Otherwise I fear that none of this will be over just because the election is over. Elections do happen every two years and I believe the intensity of the debate (too bad it hasn't been a good will discussion) will continue and probably will become more intense. That is because of the probability that if Toombs and Gillette are Directors the "mind boggling dysfunction," to use the words of the editorial, will continue and a growing body of the voters are learning the truth and will become increasingly unhappy. Frankly if Toombs and Gillette are elected, if I were them I wouldn't want to have to bear functioning as growing numbers see that they wear no clothes and the mess they and their clique have created becomes increasingly exposed. The clique can run from the truth but in the final analysis they can't hide from it. That includes the letter from Harman's attorney's (Mr. Rains) skillfully disingenuous letter being frantically distributed as we write. Mr. Rains is just doing the job on Cathie he's being paid to do, but as Mr. Behrsin is asking, are the tax payers the one's paying his fee to attack a Board Director. It's pretty nasty stuff John, we can agree on that.
LONG TIME RESIDENT November 01, 2012 at 07:28 PM
If you take a look at the Harman employment contract prepared by Mr. Toombs passed by 3/5 of the the Board in what seems to be an unlawfully held session in July- extended without the required 4/5 vote - it provides that on the one hand, Mr. Harman must be a police officer and then, when describing Mr. Harman's responsibilities, provides that the person in Mr. Harman's position has the responsibility of advising the community services district board in their negotiations with the police officers on matters of salary and benefits. I suggested to Mr. Toombs that this has the appearance of a conflict of interest as Mr. Harman seems to be on each side of the negotiation at the same time. Mr Toombs has written that this is not a conflict of interest for Mr Harman.
Leonard Schwartzburd, Ph.D. November 01, 2012 at 07:57 PM
Mr. Toombs' and Mr. Harman's credibility appear to be under serious question.
Kathy A. November 01, 2012 at 11:01 PM
Dear KENSINGTON: My dears, you have got big problems. No question about that. As a neighbor and friend, I can only offer this little bit of advice: If the same few people keep offering the same complaints DOZENS OF TIMES within days, loudly, often, no matter the topic -- the opinions of those people don't grow stronger because of repetition. (The same few have commented literally dozens of times within days, here on EC Patch.) It sure sounds like a vocal few are set on a scorched-earth tactic toward some board members and the chief of police. Seems to me that anyone in a position of responsibility for the city has a duty to keep the city's legal counsel informed of relevant developments. To light a fire and then accuse the targets of possibly accruing costs in dealing with the fire -- well, that's a Catch 22, so far as I can tell. Not worthy of the Kensingtonians I know and love.
Kathy A. November 01, 2012 at 11:43 PM
Dear Dr. Shane, You have accomplished your goal of filling these pages with your views. Sincerely, Kathy
LONG TIME RESIDENT November 01, 2012 at 11:52 PM
Dear Kathy A.: Thank you for your post. It seems that unless we have unlimted means, most community members wish to make sure that their property tax dollars are being prudently committed. It appears that Mr. Toombs and Mr. Harman are the only persons in our community with the alleged authority to spend our tax dollars on legal matters. How does that come about? As the writer of the Open Letter says, he has: "reviewed the Board’s own policies and procedures and find(s) that under section 4040.11 Mr. Toombs, as President of the local agency, “shall serve as chairperson at all Board meetings”…”and shall have the same rights as the other members of the Board…” He has asked the Board in writing to let him know whether there are any other Board policies or procedures which would give the President of the Board --or the ;police chief - any rights superior to the rights of the other Board members, and he has received no reply. Now if you know the basis for Mr. Toombs to control legal services being provided for the Community services district or the basis of the police chief's authority to use our property tax dollars for his legal defense, it would be a constructive contribution to this community dialogue if you would share with us all, this knowledge. Thank you.
Kathy A. November 02, 2012 at 12:15 AM
This was a response to a comment that the author, Anna Shane, has apparently deleted. It raised points that have been previously raised.
Kathy A. November 02, 2012 at 12:38 AM
Dear Kensington Resident -- This is just such a peculiar thing, to me. Are you and A. Jan Behrsin saying that nobody in a position of responsibility should consult a lawyer about allegations against the city, and/or allegations against city officials acting in their official capacity? Or that it is a waste of tax dollars to keep the city's lawyers informed about developments? Look -- if Kensington is potentially facing liability because of one accusation or another within the scope of somebody's duties, it would be STUPID to hold off on talking to the city's lawyers about developments, wouldn't it? Frankly, all board members, and all department heads, have responsibilities toward the city and its citizens; and I expect that therefore, they should be contacting the city's lawyers when things arise. Sincerely, Kathy
LONG TIME RESIDENT November 02, 2012 at 12:55 AM
Dear Kathy: Thank you for giving me the opportunity to clarify my comment. I agree with you when you say: "Frankly, all board members, and all department heads, have responsibilities toward the city and its citizens; and I expect that therefore, they should be contacting the city's lawyers when things arise." That would be in the interests of our little village--but that is apparently not what is happening. Apparently what is happening is that when Board members have tried to obtain legal advice from our agency's legal counsel, they have apparently been ignored by our agency's legal counsel (silence) and have apparently been told by Mr. Toombs that he and our police chief are the sole determiners of when our public servants can have access to legal counsel. So, Mr Toombs on his own decides and Mr. Harman on his own decides. There apparently are no rules about this protocol and Mr. Toombs has apparently made this decision by fiat. I do not think that is what we are accustomed to in a democratic system.
LONG TIME RESIDENT November 02, 2012 at 01:38 AM
Dear Kathy: Thank you for giving me the opportunity to clarify my comment. I agree with you when you say: "Frankly, all board members, and all department heads, have responsibilities toward the city and its citizens; and I expect that therefore, they should be contacting the city's lawyers when things arise." That would be in the interests of our little village--but that is apparently not what is happening. Apparently what is happening is that when Board members have tried to obtain legal advice from our agency's legal counsel, they have apparently been ignored by our agency's legal counsel (silence) and have apparently been told by Mr. Toombs that he and our police chief are the sole determiners of when our public servants can have access to legal counsel. So, Mr Toombs on his own decides and Mr. Harman on his own decides. There apparently are no rules about this protocol and Mr. Toombs has apparently made this decision by fiat. I do not think that is what we are accustomed to in a democratic system.
Kathy A. November 02, 2012 at 02:27 AM
Dear KR: Really, it was not necessary to repeat yourself. Again. Verbatim. So far as I can tell quickly, you have posted a few dozen times in just a few days. Congratulations on your cut and paste skills. Sincerely, Kathy
LONG TIME RESIDENT November 02, 2012 at 02:47 AM
Dear Kathy: I am sorry to have repeated myself. I am new at this and it is not always clear whether a post should follow as an "attachment" to a prior post or as a "new" post, so I have apparently made the error of doing both. I will try to avoid doing this. Sorry.
Leonard Schwartzburd, Ph.D. November 02, 2012 at 03:23 AM
Dear Kathy, Welcome to our ranks of the Corps of Frequent Posters. Please send your dues payment to... Gotta have fun sometimes
Anna November 03, 2012 at 06:45 PM
I don't know if a police chief in a small community should be making $250,000 a year (even including benefits); I don't know if Harmon/Toombs/Gillette are crooks using OUR tax dollars on non-Board approved expenditures; I don't know if Kosel is a kook accusing officers of chasing her with their patrol cars; I don't know if Koosed is in the pocket of Harmon/Gilette/Toombs - thereby causing many to question the validity or our Outlook's hand selected Letters to the Editor. What I DO know? Kensington can make money by strapping some cameras on to all these crazy characters and getting all of this drama sold as a reality show. Who needs Peyton Place when you have "Kensington Corners". Our once wonderful, wise community has truly becoming a laughing stock throughout the entire East Bay. SHAME ON everyone. What a wonderful example you are all setting for our children - the reason many of us came to Kensington in the first place.
LONG TIME RESIDENT November 04, 2012 at 04:33 PM
TOOMBS AND HARMAN CLOSE PUBLIC ACCESS TO TRANSPARENCY: Please neighbors, go to the Kensington website and search under KPPCSD Board and then under that "On Line Forums Regarding Board Actions." You will be directed to "Subscribe to Open City Hall" which is described as follows: "Open City Hall is an on-line forum for civic engagement. Read what others are saying about important Kensington topics, then post your own statement. City officials will read the statements and incorporate them into their decision process. When you post your first statement, you will be asked for your name and home address. This confidential information is only used to identify statements from residents in and near Kensington - so that users know which statements are from local residents.Open City Hall is run by Peak Democracy, a non-partisan company whose mission is to broaden civic engagement and build public trust in government. They will keep your information confidential per their strict privacy policy. As with any public comment process, participation in Open City Hall is voluntary; city officials will consider input from this forum along with all other channels for participation. However you choose to participate, thanks for helping us build a better Kensington. The Kensington Community Services District THE LATEST ITEM MADE AVAILABLE BY TOOMBS AND HARMAN FOR COMMUNITY DISCUSSION WAS FEBRUARY 2009 – ASK WHY OUR COMMUNITYOPEN DEMOCRACY VEHICLE HAS BEEN SHUT DOWN BY TOOMBS AND HARMAN
LONG TIME RESIDENT November 04, 2012 at 04:34 PM
We will get information and accountability from our officials only if we demand it. The responsibility that rests with us is to be more active and vigilant, and that responsibility includes demanding greater transparency and accountability of those we have entrusted with governance.
Leonard Schwartzburd, Ph.D. November 04, 2012 at 11:26 PM
Won't get it from the Outlook This is the Joel Koosed, the Outlook editor, (better named the “Overlooked”) the propaganda organ of the Kensington Clique, of which Vida Dorroh is a prominent member, and where they give "truth" a bad name. I appreciate how discriminating your services are Mr. Koosed. His photo is on the web site. Joel Koosed “ Founded San Francisco Roommate Referral Service, Avenue Ballroom, Kicks Magazine, and The Meeting Game® Salon. Editor: Kensington Outlook ” Interested in new Meetup Groups about Drummer, dating, Dating and Relationships, Make New Friends, from all Walks of Life, The Over 40 Gang, Speed Dating, Meeting New People, Dating Women, Divorced, Widowed, Never Married, Singles, Single Professionals looking to Meet other Singles, Professional Singles, Single Parents, Hiking, Social Networking, Writers, Artists & Musicians, Creative Circle, creating a creative community, East Bay International Creative Community, East Bay Creative Community, Dinner Party, Singers & Songwriters, Performing Musicians, Dance, Drum Circle, Drumming, Recreational Drumming, Open Relationships, Polyamory, Alternative Lifestyles, Socializing with other Singles over 50., Show less... Albany, CA Sept 2012 http://www.meetup.com/members/6449445/
AB November 05, 2012 at 03:47 PM
Dear Kathy: Please consider the post at http://elcerrito.patch.com/articles/view-the-kensington-election-does-it-matter. And also the post at http://elcerrito.patch.com/articles/view-kensington-board-s-failure-to-disclose-information Thank you.

Boards

More »
Got a question? Something on your mind? Talk to your community, directly.
Note Article
Just a short thought to get the word out quickly about anything in your neighborhood.
Share something with your neighbors.What's on your mind?What's on your mind?Make an announcement, speak your mind, or sell somethingPost something
See more »