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Golden Gate Village Resident Council vs. Marin Housing Authority - An Untold Story - Part III
A multi-part series investigating the extraordinary story behind the case of Golden Gate Village Resident Council vs. Marin Housing Authority, and the challenge of housing those most in need in Marin County.
The Straw That Broke the Camel’s Back
On July 10, 2011, GGVRC attorney, William Hopkins, wrote to MHA attorney, Nannette Sparks, to
…attempt to meet and confer to request that Marin Housing Authority comply with the terms of the Settlement Agreement with Golden Gate Village Resident Council.
Hopkins noted that while the MHA was alleging that GGVRC had not held its elections, it was because MHA had not kept up their side of the bargain and done what was needed for GGVRC to hold those elections. For example, MHA failed to review, approve and deliver the election materials (flyers, nomination procedures, candidate applications, etc.) to GGVRC, as required. This delayed GGVRC and forced them to pay for these materials themselves, another breach of MHA’s responsibilities.
MHA General Counsel, Ilya Filmus, who had just been hired at MHA and was a young and fairly inexperienced attorney at the time, shot back aggressively on August 5, 2011.
Filmus accused GGVRC of “continuous nonperformance of its material obligations… under the Settlement Agreement” and claimed that MHA “was required to expend significant [though unspecified] financial and human resources” to remedy those breaches. MHA further charged that GGVRC now owed MHA $3,368.00 for “discovery sanctions” from previous legal proceedings. MHA threatened imminent litigation against GGVRC to collect, funds they knew GGVRC did not have. MHA refused to modify the elections timeline in any way, without addressing Hopkins’ allegations.
Filmus ended the MHA letter by stating,
…due to GGVRC’s persistent, material and non-curable breaches of virtually all of its obligations under the Settlement Agreement, MHA has elected to terminate the Settlement Agreement, effective immediately.
At this point, I’m compelled to add a comment about litigation and legal dealings in general. I’ve been involved in many legal proceedings in my career; some are as far up the ladder as the Federal Grand Jury in Washington, D.C. And I’m not going to argue that GGVRC did not in some ways fail to meet the exact terms and conditions of the Settlement Agreement, for whatever the technicalities may be. I also fully accept and understand that litigation is a bloodless sport, best played by narcissists who have no guilt and know no shame. I’ll even go so far as to accept that MHA General Counsel Filmus had a job to do and a fiduciary duty to prosecute that job to the fullest extent the law allowed. I’ve met him and he doesn’t seem like a bad guy. As far as he was concerned, I suppose he was just doing his job.
But the same certainly cannot be said for the Marin Board of Supervisors, MHA’s overseer.
The Marin Supervisors have to take responsibility for the fact that MHA is a public agency that is specifically charged with being the custodians of the welfare of its disadvantaged, low income residents. For the MHA Commissioners to pursue a “take no prisoners” approach in their dealings with GGVRC strikes me as unconscionable and a thinly veiled attempt to simply get rid of GGVRC once and for all.
Ask yourself this. What was really at stake here for MHA or the County? What possible damages would they have incurred by working with GGVRC to help them get their election process on track and completed? Surely, this whole thing was not about $3,368.00.
The only way any of this makes sense is in the context of the MHA plan to create an Agency-Wide Resident Council in order to marginalize the voices of the residents of Golden Gate Village – which was exactly what the GGVRC representatives had said, all along. And once those voices are marginalized, what would be the fate of Golden Gate Village?
Of note, in May of 2011, Kate Sears was appointed by Governor Jerry Brown to fill the seat vacated by the unexpected death of Supervisor Charles McGlashan. Supervisor Sears would now be the representative of the residents of District 3, which included Golden Gate Village. In that capacity she also became a Marin Housing Authority Commissioner and privy to all that transpired, going forward.
From her lack of attention to the plight of the GGVRC, you would hardly have known it.
Serve and Volley
On February 3, 2012, David Levin of Bay Area Legal Aid, now representing GGVRC, wrote to MHA Executive Director, Dan Nackerman, in yet another attempt to restart the GGVRC election process. Residents of GGV had held a meeting in January and chose Hazel Goff and Gerald Taylor to be on the election committee. Elizabeth Moody, a member of the Marin County League of Women Voters, had agreed to serve as an election monitor during the process.
In response, Nackerman challenged the GGV’s ability, under HUD regulations, to continue to have its own resident council, since the MHA had now established the Agency-Wide Resident Council.
Levin provided a detailed response to that, including numerous citations from the HUD regulations. Among those, he reminded Nackerman of the federal regulations that stipulate that owners of multifamily housing projects
…not impede the reasonable efforts of tenant organizations to represent their members or reasonable efforts of tenants to organize. 12USC & 1715z-1b(b)(4).
On March 19, 2012, MHA General Counsel, Ilya Filmus, responded to Levin in a lengthy rebuttal that introduced a variety of new and largely specious arguments to deny GGVRC the right to have a resident council and hold elections. Among those was the contention that HUD regulations stipulated that
Public housing authorities with 250 or more public housing units may officially recognize only one duly elected resident council as the sole representative of the residents it purports to represent. 24 CFR 964.18(a).
The contention was based on Nackerman’s belief that since MHA now had a new Agency-Wide Resident Council (“AWRC”), MHA was precluded from recognizing the GGVRC. The letter then went on to support why the AWRC was now the only legitimate resident council, then rehashed all the arguments he had made in his letter of October of 2011.
This was, of course, nonsensical since the troubles at GGVRC were directly caused by the intentional actions of MHA to cripple it in order to have the AWRC usurp its authority. But even if MHA’s contentions were true, there was nothing in HUD regulations that said residents of GGV had to accept the AWRC or join it, or that they couldn’t withdraw from it at any time to set up their own resident council.
Levin responded on March 28th, this time in a letter co-signed by Jessica Sparks, staff attorney at Fair Housing of Marin. In their letter, Levin and Sparks claimed that MHA’s position violated state and federal law, citing applicable code sections, and for the reasons enumerated above. They concluded by asking whether MHA was open to “any type of mediation, or another process in which it will voluntarily reconsider its position in this matter.”
Filmus responded on April 14, 2012, with yet another unyielding rehash of why the AWRC was completely consistent with all applicable HUD requirements and was therefore the only legitimate and officially recognized resident council for all MHA tenants. In other words, he totally avoided the actual legal issues raised by Levin and Sparks.
Filmus refused to consider mediation and complained again that “MHA previously expended significant human and financial resources” dealing with GGVRC and saw no reason to do it anymore.
In discussing my research for this article with a lawyer friend of mine, who has spent many decades working with and in city, county, state and federal agencies, he commented that what experienced agency lawyers understand is that their duty, first and foremost, is to help their agency to avoid litigation. But the way Filmus communicated with GGVRC, it was almost as if MHA were saying, “We dare you.”
But then again, perhaps he was just following orders from those higher up the ladder.
Nackerman piled on with a letter of his own to GGVRC, on behalf of Supervisor Judy Arnold, on April 28, 2012, wherein he stated that as far as MHA was concerned, GGVRC no longer existed. Then, incredibly, he stated that
HUD recommends that a County-wide [emphasis his] Resident Council, representing all six (6) public housing sites in Marin instead of just one [for GGV] be formulated for election.
There is no evidence, whatsoever, in any of the reams of correspondence I’ve reviewed, that even remotely suggests that HUD recommended anything. They simply noted it as a viable option, if all participants agreed.
Undaunted by this intimidation, the plaintiffs, Taylor, Goff and Denis, urged David Levin to press onward, knowing that they were probably in for a long, hard battle ahead.
On May 10, 2012 Levin and Sparks made one last attempt to offer MHA a chance to assist GGVRC in going forward with its elections. Their letter, once again, attached a proposed election schedule.
To the best of my knowledge, MHA did not bother to respond.
Nackerman Bolts for the Door
On March 28, 2012, in the heat of these events, Dan Nackerman suddenly announced that he was leaving MHA in order to go back to his old job at the San Bernardino Housing Authority. Like Barbara Collins before him, the reason he gave was to “spend more time with his family.”
It’s comforting to know that so many of our public officials have such strong family values.
Supervisor Kate Sears praised Nackerman's performance as a housing administrator, and said his “warm embrace of public housing tenants” will be hard to beat. "He did a fantastic job," she said. "He will be missed."[1]
In his place, a consultant named Ed Griffin was named Acting Executive Director until a permanent replacement for the position could be found. Griffin had also been Acting Director during the period between the resignation of Barbara Collins and the hiring of Nackerman.
GGVRC vs. MHA
Filing a formal Complaint was the only option left for GGVRC. They had tried in every way possible to bring MHA to the table to find a solution. GGVRC vice president, Royce McLemore, had written appeals to Supervisor Kate Sears, her District representative, no fewer than eleven times from August 12, 2011 to April 11, 2012. In each instance, she tried to provide background information to help Supervisor Sears understand the situation at GGV. In increasingly desperate tones, she asked Sears to come to GGV and meet with the representatives of GGVRC.
Not only did she not succeed in being granted a meeting with Sears, but Supervisor Sears never even responded to any of her emails. Kate Sears’ indifference to the plight of GGV was unprecedented. And since it was prior to any formal complaints being filed, it was inexcusable.
In one of her last emails to Supervisor Sears, in January of 2012, prior to the filing of the lawsuit, McLemore pointed out how Sears and several of the other County Supervisors made sure to show their faces in Marin City for the Martin Luther King celebration, since as photo-ops go, it was the “place to be” that day.
Bay Area Legal Aid filed its Summons in a Civil Action against the Marin Housing Authority, on behalf of Hazel Goff, Gerald Taylor and Gladys Denis, and their Complaint for Preliminary and Permanent Injunctive and Declaratory Relief on August 10th 2012. The Complaint named the MHA and Ed Griffin as defendants. The Marin Housing Authority was defended by outside counsel, Kevin K. Cholakian of the law firm of Cholakian & Associates, San Francisco. According to MHA General Council, Filmus, all MHA legal expenses were paid for by their insurance company.
What ensued continued to reveal how MHA viewed its tenants and how the Board of Supervisors conducted the business of the County when it involved the welfare of their own constituents.
The Complaint, filed by attorney, David Levin, enumerated the reasons why denying the residents of GGV the ability to form their own resident council violated federal law, including the U.S. Housing Act, the Fair Housing Act, and a myriad of other federal regulations. It went on to explain again why the MHA’s Agency-Wide Resident Council was inadequate to represent the voices of GGV tenants. It provided details about how MHA had “interfered” with the GGVRC’s attempts to organize and hold elections, and how MHA had failed to fulfill its obligations under the law to “affirmatively further fair housing.”
The complaint called MHA’s actions “negligent,” “discriminatory,” and “unlawful.”
Finally, the Complaint alleged discrimination against the African-American residents of GGV based on the legal theory of “disparate impact” because of their lack of representation on the AWRC. It argued that the predominately African-American residents of GGV suffered a discriminatory impact because they had inadequate, proportional, racial representation on the AWRC.
MHA’s counsel immediately escalated the tone of the communications considerably. Cholakian replied to the Complaint with a barrage of blanket denials contained in no less than 35 “affirmative” defense arguments, most which in one way or another, rehashed all of the original denials or said “we are not liable” or “we are protected from this claim” because we operate under all applicable federal and state laws and HUD regulations. He also categorically denied all allegations of racial discrimination.
In other words, nothing you wouldn’t expect from a law firm that was hired to win a case.
Over what ended up being a year and a half of back and forth and the filing of almost 70 documents in the case, the Marin Housing Authority’s defense essentially boiled down to their original contentions that GGVRC failed to adhere to a predetermined elections timetable and that HUD regulations precluded them from recognizing the GGVRC because they had already set up the Agency-Wide Resident Council. This, of course, conveniently disregarded the fact that this was due to MHA’s failures to assist GGVRC.
From the outset, it was clear that MHA just wanted to get rid of the GGVRC and release MHA from its obligations under the terms of the 2006 MOU and the May 2011 Settlement Agreement. They bent their legal arguments as far as they could in an attempt to do that, but by the end of 2013, it had gotten them no further than they were on day one.
The Court was not buying it. It became increasingly evident that the GGVRC had the right to exist and be officially recognized. In October of 2013, U.S. District Judge Yvonne Gonzales Rogers referred the case to mediation.
This, however, didn’t stop MHA’s legal counsel from continuing its “scorched earth” tactics until the very end.
The New Boss
If you’re playing poker and you don’t know who the patsy is at the table, you’re the patsy.
On October 2, 2012, after a six month search, the Marin County Housing Authority hired Lewis Jordan as its new executive director. Jordan, an African-American, then 53 years old, had recently been the ED of the Chicago Housing Authority, a job he left under accusations of improper credit card spending. His starting salary at MHA was $169,500 per year, plus benefits.
Jordan had resigned from the CHA under pressure from Chicago’s new mayor, Rahm Emanuel. Ed Griffin, the acting director of MHA since the resignation of Dan Nackerman, described Jordan as “a real leader who can close a deal.”
Having done a little research on the facts and circumstances of what happened in Chicago, my sense is that Jordan was just a victim of the kind of housecleaning and re-staffing that goes on in every government agency when a new administration takes over. The new guard suddenly is shocked and appalled by something that’s been going on forever, with full approval and in the light of day, and uses it as an excuse to fire everyone and install their own people.
As reported by the Marin IJ, Board of Supervisors' president, Steve Kinsey, praised Jordon for his "great leadership" and felt that he would employ "innovative approaches to improve the lives of our residents."
Kinsey’s assurances bring me to one of my favorite Warren Buffet quotes, noted above.
I first met Lewis Jordon about a year and half ago at a community meeting at MHA, prior to the settlement of the GGVRC vs. MHA lawsuit. He seems to me an affable guy who makes a sincere effort to listen, and I wish him well. When I recently mentioned the quote to him, he gave me a perplexed look. I explained that as far as I could tell, he had stepped into a job (more like a sinking ship) in which he was being asked to shoulder an agency teetering on bankruptcy, but given no funding to assist him, no new tools or extra staff. He was just asked to “fix it.”
No small feat.
The Marin Board of Supervisors, as its overseer, has allowed the financial health of the Marin Housing Authority to deteriorate for more than a decade and has essentially done nothing to stop it. There has not been a single instance that I can find, in the past 10 years, where the County of Marin provided MHA with emergency funding or even offered it.
The Marin Supervisors seem to believe that their only responsibilities are to review staff reports and pay consultants to draft plans to satisfy minimum HUD requirements, as if that solves anything or adequately addresses Marin’s escalating affordability challenges. And, of course, they seize on any opportunity to lecture the rest of us about the importance of affordable housing.
In truth, I’m not sure what Lewis Jordan will really be able to accomplish at MHA. But there is something I am certain of, and that is that there’s nothing a white middle class guy like me can tell him about the plight of African-Americans living in public housing in Marin or anywhere else in the country, for that matter. That aside, what I have told Lewis Jordan is that in my opinion, unless he learns to walk on water he will be the Supervisors’ “fall guy” if the MHA is no longer able to continue to provide its services.
He’s essentially being asked to pull off a miracle, a financial version of the loaves and fishes, because MHA’s federal funding is not even close to keeping up with its rising costs of operations or staffing needs or the escalating liabilities of deferred maintenance. And the center-piece of that miracle has to involve a viable future for Golden Gate Village because it is the financial albatross around the MHA’s neck.
What will happen once the political winds blow hard enough that the Board of Supervisors will finally decide, “We have to do something,” and the drumbeat of housing advocates push to create “affordable housing” becomes deafening? What options will Lewis Jordon have? If the MHA faces bankruptcy because of escalating operating costs, what then?
And then, what will happen to the families living in Golden Gate Village?
Lewis Jordan has gone to great lengths to repeatedly say that MHA will not displace any residents if Golden Gate Village is “re-developed” and that there is “no plan” to tear the project down.
But can he keep that promise considering all the financial challenges MHA faces?
From the Frying Pan to the Fire
One month after Lewis Jordan arrived in Marin, on November 5th of 2012, replacing Dan Nackerman as MHA Executive Director, Velma C. Navarro, HUD’s Director of the Office of Public Housing, wrote a letter to the MHA Board of Commissioners, c/o Chair Steve Kinsey, stating:
On September 14, 2012, the Housing Authority of the County of Marin was designated Substandard Financial by HUD, based on a substandard Public Housing Assessment System (PHAS) unaudited financial score of 2 (out of 25), physical score of 35 (out of 40), management score of 15 (out of 25), capital funding score of 10 (out of 10), and an overall score of 62 (out of 100) for the fiscal year ending on December 31, 2011.
The message was clear. When all was said and done, Nackerman had not improved things at MHA or its overall HUD rating as a public housing authority (or the HUD ratings of Golden Gate Village). In fact, things had deteriorated under his tenure.
So much for Kate Sears’ glowing praise for Nackerman’s accomplishments at the time of his resignation.
Along with a long list of recommendations about how to bring the MHA into financial compliance, HUD demanded that an “Action Plan” be submitted to them within 30 days. In response, MHA filed an appeal and eventually was able to make adjustments that allowed it to once again qualify as a HUD “standard performer.”
Still, MHA had their work cut out for them.
On October 22, 2013, MHA staff presented a 106 page document to the MHA Board of Commissioners for their approval and submission to HUD: the Five Year and Annual Agency Plans for 2014-2018. The Plan document was extensive in its detailed descriptions of what was needed. It addressed all the properties owned and managed by MHA, but almost all the topics and items it listed directly applied to Golden Gate Village.
Its “Strategy Statement” read as follows:
To ensure that Capital Fund Program (CFP) funding is effectively and efficiently utilized, a clear and appropriate set of program priorities, goals and objectives was developed to serve as a guide in determining the specific work items and target sites that will be included in the CFP Plans. These program priorities, goals and objectives were discussed at length at the RAB meetings and used to develop this year's plans.
The Plan went on to prioritize needed “Modernization and Management Improvement” proposals, such as
PRIORITY ONE: MANDATORY PHYSICAL & MANAGEMENT IMPROVEMENTS
- a)Lead Based Paint (LBP) abatement or in-place management activities.
- b)Asbestos Containing Material (ACM) abatement activities.
- c)Mold and Moisture abatement.
- d)Modification of apartments and common areas for use by disabled to comply with ADA and/or 504 requirements.
- e)Emergency improvements for life safety problems, and property stabilization by addressing leaking roofs and waterproofing buildings’ exterior.
- f)Management improvement activities required by legal settlement, HUD audit finding, or identified by HUD's PHAS.
- g)Completion of Comprehensive modernization activities funded through CFP.
PRIORITY TWO: URGENT PHYSICAL & MANAGEMENT IMPROVEMENTS
- a)Emergency improvements such as chronic malfunctioning elevators, correction of hazardous conditions, etc.
- b)Identification and proper abatement of potentially toxic materials and unhealthy conditions. Specific activities would include testing and abatement of asbestos, lead, chronic mildew, etc. Repair/replacement/installation of ventilation systems.
- c)Improvements that will enhance the security of residents. Such activities would include installation of vandal resistant security lighting, security grills, surveillance equipment, gates, etc.
- d)Control of criminal activities. Such activities may include continuation of the successful public safety program of expanded patrols of Marin County Sheriff’s Department or police officers for city jurisdictions at selective MHA sites that have known criminal activities.
PRIORITY THREE: SERIOUS PHYSICAL & MANAGEMENT IMPROVEMENTS
- a)Major repairs to heating, plumbing, sewer, electrical systems, etc.
- b)Physical improvements to non-dwelling space for the expansion or improvement of resident activities and services and MHA management operations.
- c)Improvements to MHA management.
The Plan went on to discuss what it called “Remaining Physical, Management, and Other Needs,” explaining that
Remaining physical and management improvements are those that are addressed based on the severity of the problem, the efficiency of addressing the problem along with other more urgent items or on the cost savings that will result from completing the improvement.
- a)Management Issues - timely street cleaning, tree pruning, sidewalk repair, anti-vandalism strategies, appropriate trash collection system, proper cleaning of site, onsite security, site resident monitors, neighborhood programs to monitor loitering, recycling programs for each site, and graffiti abatement, among others.
- b)Maintenance Issues- cleanup of playground facilities, better maintenance programs for elevators and boilers, availability of maintenance workers who live in the city during emergency call, intercom systems for senior developments (where needed), new furnishing for public areas, well maintained doors and windows, proper graffiti abatement, addition of weather stripping on all doors, addition of handrails to dangerous areas/ areas with seniors, add landscape irrigation system, timely maintenance response, kitchen cabinet repair, wall heater replacement general unit improvements and need for new appliances, among others
- c)Self-Sufficiency Issues - family planning services, senior care services, age-specific programs for children, resident-owned businesses, social service programs, computer resource centers at all family developments and some senior developments, on-site activities/ programs for the senior developments, Resident Council (RC) monitoring and coordination, RC elections process, resident involvement in the expenditure of programs such as educational incentives and neighborhood watch, etc., and transportation arrangements for seniors, among others.
There was even an extensive list of “Capital Fund Program Plans for FY 2014,” which included:
- Urgently needed infrastructure improvements including: water main replacement; heating, plumbing and boiler replacements; site electrical improvements; concrete restoration; roofing; waterproofing; and paving repairs.
- Interior unit upgrades including: range, refrigerator and cabinet replacement; asbestos, lead and mold abatement; and 504/ADA reasonable accommodations.
- Modernization of senior and family developments [GGV] including: hardwire smoke detector installations; fire alarm system upgrades, accessibility modifications; sidewalk repairs; exterior painting; and common space improvements.
Reading this, one would think a page had turned in the history of neglect at Golden Gate Village and Marin’s other public housing properties, and the MHA was finally serious about rolling up their sleeves and fixing things.
Unfortunately, there’s just one problem with that assumption.
If you go back to October 6th of 2009 and read the Five Year and Annual Agency Plans for 2010-2014 (itself totaling 278 pages), what you discover is that except for some very minor edits, the previous Plan is essentially identical, word for word, to this new Plan. In other words, this turns out to be a boilerplate exercise with HUD that has no relationship to reality because regardless of its good intentions, the MHA has no funding to undertake any of this, except on an emergency basis. Everything identified in the 2013 Plan just hadn’t been accomplished since the 2010 Plan.
With funding for maintenance and rehabilitation of GGV nowhere in sight, and the property aging and deteriorating much faster than MHA could repair it, residents became more convinced than ever that the future of Golden Gate Village was bleak, and without the GGVRC, their voices would not be heard.
By the summer of 2012, they saw no other option but to take the County on, head to head.
[1] Marin IJ, March 28, 2012
Read PART II - The Handwriting On the Wall
Read PART IV - The Big Squeeze
Read PART V - It Takes More Than A Village
Bob Silvestri is an architect, former Section 8 housing developer, a Marin resident for over 22 years, and founder and president of Community Venture Partners, Inc.
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