Berkeley Pools Campaign

Preliminary victory for the pools!

By an 8-0-1 vote, the City Council decided at its May 29 meeting to give initial approval for consideration of a pools bond measure on November's ballot that would cost approximately $20 million. It would provide roughly $5.2 million for rebuilding Willard Pool, $10.5 for the Warm Pool, $2+ million for West Campus outdoor pool and $2 million for repairing King Pool locker rooms. City staff was directed to come back at a subsequent Council meeting with more precise costs and details. The same ballot measure would include an operational cost subsidy to provide 2008-level hours for Willard and the Warm Pool, which were closed in 2010 and 2011, respectively.

The Council will make its final decision on whether to put a pools measure on the ballot sometime in June. But the May 29 vote made it much more likely that some sort of pools measure will wind up on the ballot.

Ever since Measure C's narrow defeat in June 2010, we in the Berkeley Pools Campaign have been working hard to get a new ballot measure for this November. So we're happy that the Council has given a crucial step forward for the pools. The details are yet to be worked out, and nothing is cast in stone. It's by no means guaranteed that the pools will get on the ballot. But the strong support by the Council, with only Mayor Bates abstaining, indicates that our chances are much better than they seemed just a short while ago.

A key role in this reversal was played by Maggie Knutson, a Berkeley parent and fifth-grade teacher at John Muir Elementary School, who ralled the schools community to ask the Council to save Willard Pool. She also wrote an op-ed article in Berkeleyside that was particularly eloquent. Give it a read.

Tell the City Council: Save the pools!

The results of the second voter survey are in, and the upshot is that the pools questions -- such as they were -- did OK. Neither fabulously nor poorly.The Warm Pool reached 60 percent favorable after some limited background information was given, and Willard reached 58 percent. All of which is shy of the 67 percent required for victory. But the simple fact that they did OK despite the survey's glaring weaknesses is yet more proof that an adequately designed pools bond measure would have a good chance of victory in the November election.

The second survey had two main faults: 1) it omitted King Pool, which is Berkeley's most heavily used municipal pool by far, and 2) it wildly inflated the costs for the Warm Pool and Willard Pool. Despite our frequent complaints about the padding of Measure C by millions of dollars in bureaucratic overhead (see here), the City Manager appears to have doubled down by adding more millions of dollars in overhead to the pools costs. As a result, the cost of rebuilding the Warm Pool soared from Measure C's $9 million to $13 million, including rehab of the West outdoor lap pool, and the cost of renovating Willard Pool soared from $4.6 million to $5.15 million.

In contrast, please go check out the drop-dead gorgeous pools that our neighboring city of Albany just built. For a total of only $9 million, Albany built an indoor pool 50 percent larger than Berkeley's proposed Warm Pool, and an outdoor pool 50 percent larger than West or Willard pools. All brand spanking new, including demolition of the previous structure, new locker rooms, etcetera. Built by the same union labor that Berkeley would use. How did Albany do that? It hired an external project manager rather than managing the project in-house, and it refrained from larding the project with millions of dollars in overhead for the city bureaucracy.

Needless to say, Albany's new pools are jam-packed at all hours by the good folk of Albany, enjoying the fruits of their tax dollars well spent.

So what does this mean? At the City Council meeting Tuesday, May 29, we need to tell the Council members to save Berkeley's pools by including all of them on a pools ballot measure in the November election. That's all pools -- King, Warm, West and Willard. And lean and trim, please, without the bloated overhead.

The Council meeting starts at 7 pm, but our item is #42 on the list, with some other hot-button items beforehand. So it could go late. If you can't get to the meeting or don't want to wait late, please email or phone the Council members beforehand. Contact info is here. The Council will make initial decisions about the November bond measures at that meeting. The final decision must be set in stone by July, but the initial decisions are crucial. Please speak up!

Save Willard Pool!

Students, parents and teachers from south Berkeley elementary schools rallied Sunday at Willard Pool to urge the City Council to include Willard in a pools bond measure for this November's election. The rally was spearheaded by John Muir Elementary School teacher Maggie Knutson and her fifth-grade homeroom students, and included members of the Emerson and Malcolm X school communities.

Check out Berkeleyside's article here, the student/parent petition to Council here, and Mark Coplan's photos of the rally here. 

Below is a view of the shallow end of the pool, which is now filled with dirt ... How many children of south Berkeley enjoyed themselves and learned to swim here since the pool opened in 1964?

photos: Mark Coplan - BUSD

Our letter to City Council

At its special "work session" Tuesday, April 3, the City Council was given a staff presentation about the results of the first round of the official voter survey. As we explained in our previous post (below), the survey was marred by a lack of context and misleading wording. We gave further detail to these problems in a letter sent to Council members before the work session, signed by Berkeley Pools Campaign co-chairs Robert Collier and Ed Gold on behalf of the Campaign's 16-member Steering Committee. You can read our letter here and see our requests of the Council members. At Tuesday's work session, several Council members said they agreed with our complaints, complained of sloppy work by the survey takers and said that several other topics suffered the same sort of misleading questions as the pools. 

A full discussion and vote on this issue is scheduled for the Council's May 1 meeting, prior to the second round of the voter survey, to be conducted later in May. Stay tuned.

Voter survey results -- how they were skewed

The voter survey results have been published on the City's website. The pools did poorly, receiving much less than 50 percent support in the various questions that mentioned them. Taken at face value (which we do not recommend -- see below), the results give the pools a slim chance of getting on the November ballot. No other topic received the needed two-thirds majority, although several did relatively well -- storm drains and homeless services scored in the high 50s.

However, the pools results were almost certainly skewed by the context-less and misleading wording of the questions. For example:

• The core language for pools questions described the proposal as this: "renovate all swimming pools including the pool at Willard and build a new warm water pool." Nowhere in the survey was there any indication that Willard Pool closed in 2010 and the Warm Pool closed last December, so this pools proposal would merely replace what has been lost rather than build new facilities. Many Berkeley residents are probably unaware of those two closures, and many others might not recall them in a fast-paced, snap-decision phone call. Without that essential context, the pools might seem "new," unnecessary and extravagant.
• Elsewhere in the survey (p. 9, #27), a question about a parcel tax for pools operation costs was framed as being for "the new swimming pools." This is misleading -- only one of the four pools would be new, and that one (the Warm Pool) would be a replacement rather than new.
• It's also worth noting that the survey did not provide any option for simply rebuilding the Warm Pool but not including work on the other pools. That isn't an option that most of us at the Berkeley Pools Campaign would prefer, but it's a legitimate question that deserves to be asked. 

A central rule of polling and elections is that ballot wording is absolutely crucial. How questions are framed, and whether essential contextual factual information is included or not can change the final results and swing the balance between victory and defeat.

The City Council will discuss the survey results in April and is highly likely to commission a second voter survey in May. So the question we all need to ask ourselves is this: What do we ask the Council to do? While emails and phone calls are flying fast and furious among pools activists, the emerging consensus seems to be a two-part request to Council:

1. Reword the four-pools option to include the essential information that Willard and Warm pools have been closed permanently, with the latter soon to be demolished, and that the proposal is to rebuild and re-open them.
2. Ask for a Warm Pool-only question to be posed, with no mention of the other pools.

Pools pollsters to come calling

Over the next week or two, the City of Berkeley's voter survey will be conducted by phone. This is the first of several steps by the City to decide whether to include a pools ballot measure on the November 2012 election, as we have been advocating. So please answer that call! 

The survey, conducted by Lake Research Partners, is timed for 20 minutes, and will also include other potential ballot measure topics such as street paving, storm drains, seismic retrofitting of public buildings, parks and waterfront, affordable housing, and homeless programs. (Only a few of these topics will make the final cut -- by no means all. So saying you support most of them would cancel out your support for the pools.)

The pollsters probably will call in the evening -- which is a busy time for most of us, especially if we are trying to juggle children, dinner and other household chores. But please take the time to answer, and/or return the message on your answering machine! And please pass the word among your friends and neighbors. If we rank high on the list of other topics, we will be guaranteed a slot on November's ballot. The target size of the survey is only 400 respondents.

It is unclear exactly how the survey questions will be worded, but it's important to understand that we need to support a pools ballot measure for all the city's four pools, not just one or two:

• Expansion of King Pool (outdoor), where the Barracudas youth team and Masters team are jammed elbow-to-elbow and need more space.
• Rescue and rebuilding of Willard Pool, which was closed permanently in June 2010 and is now filled with dirt.
• Construction of a replacement Warm Pool at West Campus. The previous former Warm Pool at Berkeley High School closed permanently in December to allow for new student facilities.
• Remodeling of West Campus Pool (outdoor).

What may or may not be explained in the survey is that the eventual ballot measure is likely to be a Mello-Roos measure, just like our Measure C in 2010. This would include annual operations funds to offset budget cuts and ensure adequate staffing, programming and maintenance.

March 19 update -- Just as we wrote our blog post yesterday, the pollsters were making their first calls. We have heard that the survey includes a trick question about the pools -- asking whether people think the City should pay extra for pools operations. Of course it should! Just like parks, libraries, senior centers and any other public service, pools cannot be expected to run at a profit. Measure C included operations funds for the pools, and we hope the 2012 ballot measure will do the same. It would be irresponsible to build pools without including funds to operate them. That would be like a homeowner spending thousands of dollars to remodel his/her house without ensuring that he/she had enough money to pay the utilities, garbage/recycling, property tax and maintenance.

Council OKs two voter surveys, including pools

At its meeting Tuesday night, Feb. 29, the City Council authorized City staff to carry out a public-opinion survey about potential ballot measures for the November election.

The Council's instructions were relatively vague, leaving much of the details up to staff's discretion. But the gist is this:

• In mid-March, Lake Research Partners will conduct a telephone survey (land lines and cell phones) of about 400 Berkeley registered voters. The survey, headed up by Lake's David Mermin, will assess voters' relative sympathies toward a series of general subject matters: pools, parks, camps, waterfront, street lighting, street repair, watershed restoration, and seismic restoration of major buildings such as Old City Hall and the Veteran's Building. The survey will also ask how much people are willing to pay in total.
• Regarding pools, it seems highly likely that one question will be a Measure C look-alike at $22.5 million, covering all four pools: expansion of King Pool to accomodate the Barracudas and Masters teams; rebuilding of the now-closed Willard Pool; repair of West Campus outdoor pool; and construction of a replacement indoor Warm Pool at West Campus. This is the option that we at the Berkeley Pools Campaign are advocating.
• A second option is likely to be $500,000 for repair of King and West Campus alone. This is a wholly unsatisfactory option that would leave Willard permanently closed and would not provide a new location for the Warm Pool, which recently closed permanently at Berkeley High School.
• In their comments, Council members mentioned the pools as much as the other most-mentioned topic: street repair and lighting. Jesse Arreguin, Laurie Capitelli, Linda Maio, Darryl Moore, Susan Wengraf and Kriss Worthington voiced support for the pools. They have heard all of us loud and clear!
• April 3 Council meeting: Staff report of survey results.
• May 1 Council meeting: Council direction to staff about second survey.
• Mid-May: Lake Research Partners will conduct a second survey of about 400 voters with more detailed questions about the top-scoring topics from the first survey.
• Late May through early July: Council discussion of survey results.
• July 10 Council meeting: exact language of ballot measures must be approved.
• July 17 Council meeting: final approval of ballot measures.
• November 6: Election Day.

So what does this mean? In mid-March, poll takers will be phoning many of us, our friends and neighbors. Let's all support all four pools -- King, West Campus, Willard and the Warm Pool. And if you get a message from them on your voice mail with a number to call back, please do!

Grand opening of Albany pools!

Anyone wanting some inspiration for Berkeley pools should go visit the brand-new public pools that just opened in our neighboring town of Albany. The pools opened Feb. 13 ... see this article on the Albany Patch website.

Being naturally inquisitive swimmers, we moseyed on over to Albany on a Sunday afternoon to check it out. We can report to you that the indoor pool was swarming with kids and parents, and there was a line out the door of people trying to get in. It's a very attractive, spacious facility. At right and below are some photos taken before opening day by Peggy McQuaid, a member of the Albany School District's community pools advisory committee. Peggy kindly provided them to us with no endorsement implied. 

The indoor pool is 3,500 square feet, water temperature 85 degrees, and the outdoor competition pool is 6,000 square feet, 79-80 degrees. The outdoor pool will host swim meets for the high school swim team as well as other youth and masters teams. It has a Colorado timing system, which uses touch pads in the pool to keep time for swimmers. The two pools' total cost was only $9 million, plus $1 million for three modular classrooms for the high school, paid for with a $10 million bond measure passed by Albany voters in 2008.

But don't believe us that Albany's pools are great -- go check them out with your own eyes. The pools were built with union labor and most of the other high standards that Berkeley requires. All told, they are an inspiring example of what Berkeley could do with a pools bond measure in the November 2012 election -- if and only if the pools are priced reasonably. For an explanation of what happens when a pools bond measure is treated by the city bureaucracy like a cash cow (think Berkeley), see here. 

A postscript on election turnouts: In the June 2010 election, Measure C received 62.2 percent of the 26,253 votes cast. While that turnout was vastly higher than the typical voter survey sample of 400 people, it represented only 37 percent of the electorate, much less than the average November presidential election -- such as 2008, when 79 percent of Berkeley residents cast their votes. The political rule of thumb is that light turnouts are dominated by relatively conservative voters, while heavy turnouts bring out more liberal voters who are likely to vote for tax measures. So the pools' chances for the November 2012 election look excellent. As long as the Council puts the pools on the ballot and as long as Berkeley follows Albany's example by cutting the fat.

Looking to the November elections

Next step for the Berkeley pools community: making our voices heard to the City Council members to get them to approve a pools ballot measure for the November 2012 election.

Council members have been discussing this, but the specific content of the bond measure has not yet gelled. The Council has lots of other high-priced needs, with street paving, storm drains and other issues also competing for space on the November ballot. So pools will only get on the ballot if the Council members feel the pressure. Which means all of us need to contact our Council members and Mayor Bates! Their contact info is at this link.

It's highly likely that a new Warm Pool would be included, to replace the soon-to-be-demolished Warm Pool at Berkeley High School. The rest is a wild card:

• Willard Pool, which has been closed since June 30, 2012, needs complete rebuilding. The abandoned pool is a prime example and driver of blight on lower Telegraph. The building's only current use is for a homeless shower program. The City and School District have no alternate plans for the facility and are likely to mothball it for many years to come unless a new ballot measure is passed. 
• King Pool, the much-loved but crowded home of the Barracudas and Masters teams, needs expansion to allow space for the teams and lap swimmers. 
• West Campus Pool, which is open only open five months per year on weekdays, is the only pool available to residents of South and West Berkeley. It is forlorn and needs kid-friendly play features.

Please contact your Council member (and Mayor Bates) to ask them to support a pools ballot measure for the November ballot. Contact info is here. The most favorable option for all pools would be roughly similar to Measure C in June 2010, which barely lost with 62.2 percent in a low-turnout, off-year primary election. That measure would have rebuilt Willard, King and West Campus outdoor pools and built a replacement indoor Warm Pool at West Campus. It would also have provided annual operating funds to compensate for city budget cuts.

 

Federal court ruling: Warm Pool to stay closed

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

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

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

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

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

The full ruling can be read here. 

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

Warm Pool funeral

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

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

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

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

Welcome to the Warm Pool funeral.

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

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

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

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

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

 

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

Lawsuit update

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

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

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

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

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

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

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

KTVU: special needs kids vs. Warm Pool closure

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

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

Legal dueling in Warm Pool lawsuit

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

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

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

City:

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

School District:

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

Plaintiff's rebuttal to City:

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

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

Plaintiff’s rebuttal to School District:

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

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

Special-needs children and the Warm Pool closure

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

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

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

 

No YMCA deal for Warm Pool users

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

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

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

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

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

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

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

Update on planning for a 2012 ballot measure

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

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

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

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

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

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

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

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

The untold story about the City's overhead costs

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

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

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

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

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

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

The net result is this:

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

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

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

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

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

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

This is crucially important for 2012 and beyond. As the City Council and the general public discuss how to put together one or more bond measures for the November ballot, Council members will need to ensure that costs are calculated without unnecessary bureaucratic overhead. This kind of due diligence is one of the most important -- although admittedly not simple -- functions of an elected  body. If Berkeley residents are to enjoy their pools, parks, waterfront and other facilities for many years and generations to come, the City Council needs to put on its green eyeshades and make sure that any proposals put to the voters are trim and efficient.

Community support for pools ballot measure in 2012

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

Delay in Warm Pool talks between City, YMCA

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

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

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

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

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