AUSD to Form H Committee

One plaintiff will not participate

Superior Court Judge Kenneth Mark Burr has given the Alameda Unified School District time to negotiate with John C. Beery, who has sued the district over taxation provisions in Measure H. The second plaintiff, George Borikas, will not be at the table; the district has rejected his offer of settlement.

AUSD and Beery have come to a basic agreement to form a committee that will work together to develop a new parcel tax to replace measures A and H.

"Attorneys representing AUSD and John Beery, lead plaintiff in the lawsuit, met before Judge Burr on Aug.13 to discuss working toward a potential resolution of the litigation," the school district said in a Sept. 8 press release. "At that time, Judge Burr vacated the trial date to give both parties time to work on terms of a possible resolution."

"The Beery plaintiffs are to continue in their negotiations including the formation of an advisory committee as they have set forth in their settlement agreement framework with the Alameda Unified School District," say court papers dated Sept 8. The Beery plaintiffs include John C. Beery; Alameda Gateway LTD; and Marina Square & Associates.

"The Borikas plaintiffs are to be kept informed of the advisory committee work to place new parcel tax measure on the ballot by June 2010," according to the court papers.

The Borikas plaintiffs include George J. Borikas, trustee of the George J. Borikas 1999 Revocable Trust; Edward Hirshberg, trustee of the Hirschberg Trust; Santa Clara Investors II and Nelco, Inc. The plaintiffs Santa Clara Investors II own property on Santa Clara Avenue. Nelco, Inc. is a general building contractor that lists Lee Kohn Hirshberg and Natalie M. Hirshberg as officers.

In its press release the school district said that it had set Oct. 20 as a deadline to appoint a 10- to 12-member advisory group. The group will include members of the Alameda community; two of the members will represent the Beery plaintiffs.

If all goes according to AUSD's schedule, the advisory group would recommend a proposed new parcel tax to replace measures A and H to the Board of Trustees on Jan. 12, 2010. The trustees would vote by Feb. 28, 2010, to accept, reject or modify the group's recommendations. If the board accepts the recommendations, it would then take the necessary steps to place the revised parcel tax on the June 2010 election ballot.

"I'm very hopeful that the advisory group will develop a structure for a new parcel tax that every Alamedan can support to help address the funding issues that face our schools," said Superintendent Kirsten Vital in an AUSD press release.

Alameda voters passed Measure A on June 7, 2005. The measure replaced an existing $109 parcel tax with a $189 annual tax scheduled to expire in 2012. On June 3, 2008, voters passed Measure H. This four-year tax asked Alameda property owners to pay on a sliding scale that became the centerpiece of the current lawsuits.

Together, measures A and H provide more than $7 million to Alameda schools. According to AUSD, the money is necessary to offset "drastic state budget cuts." The parcel tax funds support programs such as advanced placement courses, music, athletics and smaller class sizes.

According to the release "George Borikas, the plaintiff in the second suit against Measure H, has declined to participate in the resolution plan."

"We offered a very specific and adequate solution that could have settled the issue," said David Brillant, who represents the parties in the Borikas suit. "The solution should not include an election," Brillant said.

Brillant said that if AUSD prevails in replacing measures A and H with a new parcel tax, that new tax "will knock the socks off everyone" and "outpace Piedmont" in spending.

Brillant says that he hopes that Burr will not agree on a settlement that calls for putting a new parcel tax before the voters. The repeal of measures A and H would require a simple majority of the voters to pass; replacing the measures with a new parcel tax, however, requires a two-thirds majority to pass. Brillant expressed concern that voters might not pass a new parcel tax after repealing measures A and H.

Plaintiffs are due back in court Dec. 17 when Burr will determine whether the advisory board has made sufficient progress on getting the new parcel tax on the June 2010 ballot. If Burr decides the board has failed in its mission, he will set a date for a trial to begin.

Brillant is not confident that Beery and AUSD will come to an agreement that will satisfy the judge. "I would rather Burr give me a judgment so I can appeal," he said.


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