By David M. Greenwald
Executive Editor
Davis, CA – Unsolicited, several people this week who don’t normally follow the land use side of Davis politics messaged me to in effect to say “what’s up with Dan Carson.” Understand that I am an unabashed supporter of DiSC and I don’t have a particular problem with using the legal process to ferret out whether ballot statements are factual or misleading, but the optics of a sitting councilmember leading the action was never great, and has been compounded by attempting to get fees and also by some other comments.
This week six former mayors admonished the actions of Dan Carson. While some of them are clearly against DiSC, not all of them are or at least were.
I quibble with some of the language, but the message resonates.
They write: “Just the possibility of another developer suing the citizen opponents of a project could scare Davis residents from standing up and speaking out. That’s not the Davis way. Winning a political debate shouldn’t depend on the size of your pocketbook. Instead, make your best case and then let the voters decide.”
They continue: “The problem with Carson’s conduct in the Measure H campaign is that he has blurred the line between his role as an elected representative of the people of Davis and his advocacy for a development project. This conflict of interest was on full display at the April 5 City Council meeting, when he took up a Measure H matter that was not on the agenda and gave a lengthy political speech. Even Mayor Gloria Partida 
admonished Carson this was improper.”
They add, “As past mayors of the city of Davis, we can assure Davis citizens that Dan Carson is charting new political ground and that it is not good. We would ask that Councilman Carson carefully reconsider what he is doing with respect to Measure H.”
It actually could have been worse—at least one other former mayor told me this week that they were approached to sign the letter against the measure and, while having issues with Carson’s involvement, had issues with the language of the letter and could not sign on.
As I have pointed out in previous columns, Judge Maguire actually took issue with a number of the claims by the No side beside the one that he ordered changed. He rightly erred on the side of free speech. And I would argue the limited changes that the writ asked for are not an infringement on free speech—but the point that Dan Carson, a sitting councilmember, would be leading the way does create a much bigger problem for supporters of the project than many would like to acknowledge.
Yes, Dan Carson does have the right to lead the initiative and the right to speak as a private citizen.
“I am an elected official, I’m allowed to be a political leader as well,” Carson said during the council meeting. “Is there any problem with an elected city council member who voted for a project supporting the project he helped to put on the ballot?”
City Attorney Inder Khalsa pointed out that conflict of interest provisions are limited.
“You do not have a financial conflict with respect to the project and you don’t have any other legal conflict interest,” she said. “Councilmembers do have First Amendment Rights and can be advocates of a ballot measure.”
However, this isn’t just a court of law now—it’s a court of public opinion and, more importantly, it’s a political campaign.
And I’m sorry but those on both sides of the issue who are arguing about overblown rhetoric and legal nuances have forgotten that the fact that we have Measure J in place in this city turns this from a land use discussion to a political campaign. For better or worse.
As bad as the optics are for the initial action, a few things have helped drag this out further. One is the battle for legal fees. It really was a split decision—especially if you parse the considerable nuance of Judge Maguire’s carefully crafted decision, both sides should have let sleeping dogs lie at that point.
That has dragged this process out for another month at least.
The second was Carson’s decision a few weeks ago to respond to public comment.
Carson said following the public comment session in early April, “In light of some of the comments we all heard earlier during public comment, I do feel a need to respond.”
He continued, “We ordinarily don’t focus on politics in this chamber, um, but we live in a troubling world now of alternative facts that are spread and endlessly recycled on social media until folks end up believing things that just plain aren’t true.”
Carson continued for another minute or so, but his colleagues clearly were not comfortable with his responding to public comment on purely political matters.
Mayor Partida jumped in, “I appreciate that you want to defend yourself, I absolutely support you in the campaign for Measure H. If you can maybe keep…”
Carson assured her he was almost done.
Mayor Partida added, “It’s a little unusual I think…”
Following Carson’s comments, Lucas Frerichs, the Vice Mayor, said, “This council performed its role and obligation which is to vet a project and potentially place it on the ballot. And we’ve done that.”
He continued, “There’s an external political campaign occurring which also happens particularly for this Measure, but honestly I’m uncomfortable with… We can’t prohibit what was said in public comment, but I do think this sort of politicalization of this particular issue as it relates to… I think we’re getting far afield from our roles and responsibilities particularly in conducting the people’s business before us this evening.”
He added that people can go out into the political world and lob their accusations, “I think that’s all fine and appropriate, but I do not think it should be a part of the city council meetings as far as the city council side of the equation is concerned.”
I don’t know how deep this actually goes. The letter by the six mayors probably heightened the public awareness of the incident. I saw a Nextdoor complaining about Councilmember Carson, but the comments were kind of split—a lot of usual suspects raising the issue and a lot of people who aren’t as engaged seemingly unaware of it.
In my opinion this is an important issue.
I think Keith Echols said it very well, “To me the NO Camp has to be able to convince me that there is a viable alternative to improving the city’s fiscal situation. “ And, “The YES Camp has to convince me that they’re not going to completely muck up Mace Blvd. “
That cuts to the quick and really has little to do with Dan Carson and whether he made a mistake or not getting involved in the legal action. I think it’s time to have that debate and discussion.
If Measure J is to work as hoped by supporters, we have to have meaningful discussions over the core issues and allow the citizens to weigh between the two competing perspectives.
Ahhh… but the JeRkeD measures are working EXACTLY as the originators intended… to make development political… to say that ‘this is not was intended’ is untrue (using a euphemism)… this was evident from the inception of Measure J…
Yet you still support Measure J.
In fact many of the former mayors and others who support Measure J are now crying foul. Measure J makes developers pay huge amounts of money to run campaigns and even pay for the election costs themselves but when another unintended consequence surfaces all these advocates whine about the costs of direct democracy. They want it both ways.
That’s part of the point I have been making over the last week or so, if you turn land use into an election, it becomes politics.
Yes, you too want it both ways. You supported Measure J’s renewal when it mattered but cry crocodile tears and lament every ridiculous turn of events. In my personal opinion its a pathetic and cowardly overall performance.
I have made it clear that I support the right of the citizens to vote on projects. I have also made it clear that I support some changes to the format by which it has been laid out. I didn’t get to vote on whether or not the make changes, I only got to vote on whether people should have the right to vote.
Ron G… it’s actually “two bites of the apple”…
Folk can go political during the “procedural and vetting process”, and, they know they get a second chance, if they failed at the first, with a JeRkeD vote… nice work, if you can find it…
And, interestingly, it is not just the ‘no-growthers’… it has also been those who support growth but want it to be their developer, not another…
There is a “dark underbelly” in all of this…
As for Carson, you fall into the former mayors trap of only telling one side of the story. Neither you or the former mayors point out that Carson was responding to the projection of the No on H campaign chair calling Carson “A bully and a thug.”
While it is unusual and possibly a violation of the Brown Act is it really fair to insist that a CC member remain silent after being so viciously and personally attacked during public comment? I don’t think so. How far do you think a formal complaint about Carson’s conduct would get after a review of what was said about him during public comment.
And what about the mayors? You say not all of them are against Measure H. Can you name one? This letter is, as you point out, a political attack. But even worse you fail to mention that one of the former mayors is named in the case before Judge McGuire. Talk about conflicts of interest!
Ron, part of the problem is that we have had four years of experience in Washington with a bully and a thug, so we are especially sensitive to those kinds of actions.
And many more years of it from the public commenter when he was a commissioner.
I’ve never wanted to be on the CC but Matt you ran for Council. How would you react to being called “a bully and a thug” if you were on the dais? Do you really think its fair for elected representatives to suffer such indignities in silence? Much is being said about the chilling effect of the costs of asking the courts to umpire the ballot statements. What about the chilling effects of asking people to serve and remain silent while being so publicly and personally attacked? If you think this doesn’t dissuade good people from serving look no further than a recent one term CC member and Mayor, who served with great integrity and tried to lead by example, yet chose not to run for re-election. A mayor, by the way, who didn’t sign the letter.
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Ron, fair? Probably not, but are the criticisms that are currently being thrown at President Biden fair? Again, probably not, but criticisms are part of the job description. Carson did not take a page from the Biden playbook. He took a page from the Trump playbook. If I had been elected back in 2016, I suspect that I would have taken an approach similar to the one Don Saylor deployed so successfully … having regular weekly coffee hours so that the citizens felt they had access to me one to one. That approach would mitigate the chances of public comments from the lectern being confrontational. As they say, an ounce of prevention is worth a pound of cure.
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As I said above, I think it comes with the job.
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I absolutely agree that it dissuades good people.
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I suspect but do not know that Robb would have found the letter as submitted had more personal confrontation in it than he was comfortable with. I suspect that Robb would prefer using a restorative justice to problem-solve and address any harm caused to the community by Dan Carson’s actions. Robb is the most principled person I have ever met, and I respect him immensely for that. All his words and actions indicate that Restorative Justice is one of his core principles.
Please keep national politics out of these discussions.
Ron G, the City Staff has repeatedly told City Commissioners not to respond to public comment directly while in session. I presume that Carson has been instructed in the same way. If the City Attorney and/or City Staff doesn’t directly address this, then the attorney and staff are being hypocrites.
The staff and attorney hypocrites. Oh my! The City Manager and attorney serve at the pleasure of the council. Don’t expect them to bite the hand that feeds them any time soon.
Well said Ron. There is a whole lot of personal interest driving the actions of our local government.
On minor tweak to your statement. Only the City Manager and the City Attorney serve at the pleasure of the Council. All the rest of the staff either serve at the pleasure of the City Manager or are covered by collective bargaining agreements.
NOTE: I received the following correction that needs to be shared. “The rest of the EXECUTIVE MANGEMENT and DEPARTMENT HEADS staff serve at the pleasure of the City MANAGER AS covered by collective bargaining agreements OR INDIVIDUAL EMPLOYMENT CONTRACTS”
of the City Manager.
One of the truisms of politics, once upon a time, was that when the battle is over you have to go back to working with people whom you were just excoriating. These lawsuits were a disastrous mistake as they sought to penalize opponents materially and personally. I question whether Dan will be able to do his job as councilmember as effectively as a result since he has hardened the polarization.
It is true that some of those he’s sued have been relentlessly opposed to him since he took office. But not all of them. These are Davis citizens who have served and will continue to serve on commissions and advisory bodies and who will harbor justifiable animosity.
The supposed ballot accuracy wasn’t worth this outcome. Seeking legal fees went over the line. Council members are liaisons to commissions and function on 2×2’s. If I’d been sued for substantial financial damages, I’d be very disinclined to work with the plaintiff in any of those capacities. His service to the city, substantial as it is to date, is undermined by his behavior.
The former mayors raise very important points. Perhaps he should meet with them to discuss their concerns, if they would be willing. Dan Carson is seeking support for re-election to the council. He needs to address the former mayors’ points with some self-awareness and humility, or he is likely to find it harder to garner that support.
It boggles my mind on how a short hearing to address ballot language cost a combined $140,000 ($70,000 for each side of the issue). I think it is ludicrous that that many billable hours could be generated over the course of 2-3 days prior to the hearing. I hope the judge settles this in a reasonable manner. (It should be noted that the No side did not spend $70,000, but entered into an agreement that it would petition to collect that amount for their lawyers.)
Put in the context of over a decade of lawsuits repeatedly filed to stop development in any form, even after we voted to approve, I think some kind of legal action is now expected with every land planning vote. It has mainly been directed at the City and/or the developers, so people haven’t felt the sting or shock of being on the receiving end of a lawsuit. It is frustrating to witness some relatively anonymous group or, if identified, the same people try to overturn the vote, with little regard that they are suing people who now have to pay for a defense either directly or through our tax dollars.
It is hard to sift through the anger and mis-information. So far, I’ve only found the letter from Stephen Wheeler and some of Matt William’s letters (when I can get through it) to be of value on the No side, and the actual planning documents on the Yes side. If the campaigns were more civil – based on facts or opinions supported by research and not based on who people liked or disliked – and the vote FINAL, Measure J’s purpose might be realized. At present, I think it ruins community.
Well said. I agree–it has politicized the planning process to a very high degree. Allowing initiatives to be placed and passed with such ease has the same problem. We need to return to be a democratic republic with limited resort for direct voter interjection into law making. Our representatives have lost accountability because of “direct” democracy. Time to end this experiment.
The information about the lawsuit is not accurate.
$70,000 is not the cost for either side for the initial hearing regarding Carson’s attempt to remove about 30% of the argument against H ballot statement. The briefs and declarations that are publicly available give specific detail. A significant portion of the total cost is actually fees for the motions to recover fees. Real parties updated the fee request in the reply to Carson’s fee motion to be $92,000. the cost went up because of the need to respond to Carson’s motion to recover fees. The requested amount is directly linked to attorney time spent on the case.
Most significantly, the statement “the No side did not spend $70,000, but entered into an agreement that it would petition to collect that amount for their lawyers” is completely wrong. The No side was able to hire an attorney with a portion of the fees on contingency, that is an open ended agreement, not a set amount of contingency fees. Further, fees can only be awarded based on actual hours worked and billing rates. All of that is included in declarations that have been filed with the court and are public record. The fee request for both sides are supported in the accompanying declarations.
What is the billing rate per hour they are asking to be awarded by the court?
One of the filings I saw was using $800 per hour.
Makes sense… goes to contingency, risk… higher the risk of the bet, more you expect the “pay-off”… called “odds”… attorney form of gambling…
The cross-lawsuits, and particularly the “No on H” folk have attorneys/lawyers who have two ‘prices’… if they win, and if they lose… Shakespeare was right…
Watch CATV commercials,,, you only pay if you win…
attorneys/lawyers who have two ‘prices’
I do, too — my rate for depositions and trial testimony is about double my usual rate. It’s partly because it’s more stressful, and partly just because I’m swimming with the sharks.
The $70K amount for the No on H lawyers came from their filed initial petition and $9,000 of it was the cost of preparing their petition to collect fees. If what I’m reading from your post, this number is increasing with every response by the lawyers and they now want $92,000 total in fees(???). With every answer should the amount jump by $10-12,000? Is that accurate? It has never been disclosed what the No on H campaign has actually paid in legal fees.
My understanding is that the campaign ponied up whatever was in the coffers. Whether that was hundreds or thousands, I have no idea. Could be either.
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Did Carson’s actions have anything to do with land use? They didn’t for me.
As Keith Echols has clearly pointed out they have much more to do with legal procedure. The law suit was indeed the route available to the Yes on Measure H campaign team if they chose the strategy/tactic of legal confrontation. I suspect even the six Mayors would agree on that, but choosing a tactic/strategy of legal confrontation does have consequences.
However, all of that is independent of Dan Carson as an individual. Anyone on the Yes on Measure H campaign team could have been the plaintiff. For that matter, anyone with standing in the case, whether they were on the campaign team or not, could have been the plaintiff.
So this isn’t a land use issue, or even a legal procedure issue. It has every appearance of being an issue about the choice Dan Carson personally made to attach his name to the action. That is why the several people who talked to you used the question, “what’s up with Dan Carson.”
You don’t know the internal deliberations of the Yes on H campaign so its possible that there were reasons you don’t know about that led to Carson being the plaintiff.
Where we agree is that it was a tactical mistake for Dan Carson to front the complaint.
On several levels, je d’accord, aussi… only thing I can think of is a “self-inflicted wound” to get out of the war theater… Carson at least should get a “Purple Foot” medal… he definitely stubbed his toe, but broke no laws, definitely did not behave unethically… best way to describe it is “he did a stupid, politically”,
Yet, I’m glad the ballot language was challenged, and somewhat right or somewhat wrong, that means going to Court… as to the reciprocal “court costs” complaints… I’m hoping Maguire will go the way of “I’ve [the Court] got more important things to do, lick your wounds (suck it up), and move on…” That would be ‘justice’, in my view… that’s on the ‘legal side’… if he goes ‘political’, then he can count on me to affirm any candidate but him from any future votes… not a threat, but a promise…
They have always had the right… long before the JeRkeD measures… called “the referendum”… the original Wildhorse, the Mace Ranch approvals had referendums… both failed…
The JeRkeD measures just mean a referendum is MANDATORY… and, very contrived… on purpose… if the average voter is confused, they tend to vote NO… so, where referendums seek to overturn decisions and there is confusion, guess what happens… the JeRkeD measures flip that…
I recently spoke with one of the authors of the original Measure J on this point. He told me that the referendum system was too much work. I guess when you are opposed to everything its a lot of work.
The key is, on a referendum, you have to get a “Yes” vote to overturn a decision… Measure J (and successors) “flipped” that, making a “Yes” required sustain a decision…
Which approach is most “democratic”? And practical…
It isn’t that “it is too much work” (that’s “spinning”)… it is a somewhat devious way of knowing (well-documented) that if there is confusion on an issue, voters, who are not fully informed, will tend to vote “No”… ‘home team (philosophical? political?) advantage’ as it were…
Its what the person told me that it was too much workand added that you had to collect signatures and only had 30 days to get them.
Fair response…
I suspect your source was ‘spinning’, but I might well be wrong… I’ll leave it at that…
https://www.sos.ca.gov/elections/ballot-measures/referendum
View Filed Forms (southtechhosting.com)
Best “public” info…
How “transparent” is for others to judge…