Tom Means resigns from Rental Housing Committee

Just an observation:

If you ever google any politician claiming the resigned to dedicate more time to “family” normally it is because their conduct prior to resigning was likely to involve a serious investigation or clear demonstrated potential misconduct.

The failure to establish good cause to remand those items that were affirmed by the legal experts for the RHC are the grounds. The RHC reversed the process, the burden of proof is on landlords to provide the preponderance of evidence, not the hearing officer, nor the tenants. The denial of Vega was affirmed. The equal distribution of the rent increases were affirmed. But Tom Means and Vanessa Honey demanded that these be remanded with no proof of failure of due process.

I suspect that there is possibly an investigation occurring. It simply is not being disclosed. Also Tom Means made statements declaring bias as an RHC board member. The 5th Amendment prohibits even the appearance of bias. He disclosed it in public during the hearing. You said:

His public disrespect and clear bias against his own hired hearing officer (an experience Real Estate lawyer and judge) was simply the straw that broke the camels back. Before you try to make excuses for others behavior, it is better to know what occurred. You simply don’t seem to know what happened. I was there, and you can see the hearing on the Mountain View website video archive. You said:

He violated the due process requirements for both the California and Federal Constitution’s by expressing clear bias regarding his decisions. Can you understand that even the appearance let alone demonstration of bias in public testimony from a judicial officer or procedure is unconstitutional?

I am certain during the RHC meeting he got a message by both Jannie Quinn and the Lawyers hired by the RHC that he crossed such a line that it was an abuse of power rather than a legitimate governmental action. That put the City into serious legal jeopardy. This will cost the City dearly due to HIS misconduct.

Simply put, he is trying to put a positive spin on what was a train wreck of a judicial proceeding on Monday by saying he was leaving to be with his family

Wishing you well in retirement, Tom. Thank you for your years of service to the Mountain View community. Your unbiased voice of reason will be sorely missed on the RHC. Enjoy your well deserved time closer to family.

Wow BM, for someone who demands facts you sure do have a lot of "likely" and "suspect" in your comments. Before slandering Mr Means perhaps you could provide proof to your theories.

As Successful Busonessman said, thank you to Mr Means for your service.

Good riddance to bad rubbish. Mr. Means should have resigned the moment he decided to accept money from the San Mateo County Association of Realtors for his paper about rent control. Council should learn from their "mistake" and appoint a successor who believe in upholding the law, in text and spirit, as passed by the people of Mountain View.

@The Successful Businessman, You are hilarious! Thanks for that!

-- already posted 21 comments on the original online copy of the same story here three days ago Web Link and now you -- many of the same people! -- are doing it all over, here, on the second copy of the same story (which routinely appears, as you all know). Since it's the same old fully predictable comments again, I marvel that the paper didn't just delete this second copy, given that they closed the first copy to comments, and from the same crowd. (Weekend rush, I guess.)

@TBM

I give up. Where does the Fifth Amendment prohibit "even the appearance of bias"? I see an enumeration of various points of due process (including just compensation when private property is taken for public use), but I don't see anything about "the appearance of bias".

TBM,
You are all sour grapes because Mr. Means apparently wants to be fair to the landlords and does not endorse stealing.

In response to Darin you said:

“I give up. Where does the Fifth Amendment prohibit "even the appearance of bias"? I see an enumeration of various points of due process (including just compensation when private property is taken for public use), but I don't see anything about "the appearance of bias".”

Here is just part of the document called “NO ACTUAL BIAS NEEDED: THE INTERSECTION OF DUE PROCESS AND STATUTORY RECUSAL” found here (Web Link) It states:

III. DISCUSSION

Under the Court’s recusal precedents prior to Caperton v. A. T. Massey Coal Co., 179 a judge’s personal interest in the case’s outcome or his personal bias for or against a party would not be enough to require recusal under the Due Process Clause.180 Yet, a “fair trial in a fair tribunal,” a “basic requirement of due process,”181 would seem impossible when the judge is biased or has an interest in the outcome. Canon 2, Rule 2.11 of the American Bar Association’s Model Code of Judicial Conduct182 recognizes this reality, as do Congress183 and all fifty states that have adopted Rule 2.11’s “impartiality might reasonably be questioned” standard.184

In Caperton, the Court abandoned its former categorical approach to recusal and replaced these categories with an objective test—“probability of actual bias”—applicable to all situations.185 Despite the Court’s attempt to limit Caperton, 186 the practical effect of its decision was to raise the due process floor and erase the distinctions between due process and the Model Code’s recusal standard. Although the Court misframed its precedents, Caperton reached the right result by refashioning due process to comport with popular notions of fairness and impartiality as reflected in judicial codes.

A. Caperton Raised the Due Process Floor

1. Caperton’s “Probability of Actual Bias” Test Transformed Dicta into Law As Chief Justice Roberts’s dissent emphasized, the Court prior to Caperton had recognized only two categories of cases in which the Due Process Clause required recusal:187 (1) situations where the judge has a pecuniary interest in the outcome of the case188 and (2) criminal contempt cases where the judge had adjudicated and was embroiled in the earlier proceeding from which the contempt charge arose.189 The Caperton majority presented these categories of cases as examples, or “instances,” of when recusal was required.190 In reality, however, the Tumey v. Ohio, 191 Ward v. Village of Monroeville, 192 and Aetna Life Insurance Co. v. Lavoie193 pecuniary interest cases and the In re Murchison194 and Mayberry v. Pennsylvania195 contempt cases were not simply a few scattered examples of a broader rule, but rather were the only “instances” in which the Court had ever held recusal to be constitutionally required.196

a. Splicing the Precedents

The broader rule Caperton purported to extract from its recusal precedents was the principle that “objective standards . . . require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’”197 The Court drew this quoted language from Withrow v. Larkin. 198 Yet the Court excluded Withrow from its discussion of its prior recusal precedents, all the while borrowing heavily from that case throughout the Caperton opinion. 199 Withrow is not a recusal case; it is a case in which the Court rejected the contention that a state agency’s “combination of investigative and adjudicative functions” violated due process.200 Therefore, the Court’s reliance on Withrow to articulate the due process standard for recusal is curious. Even more curious is the Caperton Court’s wholesale borrowing of Withrow’s language without any discussion of that case. The Caperton Court’s silence as to Withrow sharply contrasts with the opinion’s thorough treatment of Tumey, Ward, Lavoie, Murchison, and Mayberry.201

The Court even seemed to quote Withrow out of context. Withrow expressed doubt that the appellee in that case could meet the “difficult burden of persuasion” required to show that the state agency’s combined investigative and adjudicative functions violated due process.202 Meeting this heavy burden would require a complainant to

overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.203

Withrow conceived of these requirements as high hurdles that would almost always yield to the “presumption of honesty and integrity in those serving as adjudicators.”204 Indeed, the Withrow appellee failed to convince the Court that the state procedure at issue violated his due process rights.205 The Caperton Court, however, quoted piecemeal from Withrow as though Withrow were paraphrasing a general rule governing all of the Court’s recusal cases:

In defining the[] standards [illustrated in the Court’s recusal precedents] the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”206

But the Court’s pre-Caperton recusal cases evince no such “risk of actual bias” standard. Tumey the seminal case, established that the Due Process Clause incorporates the common-law pecuniary interest prohibition.207 Ward confirmed that the prohibited financial interest need not be so direct that the money flows straight into the judge’s pocket.208 Lavoie stands as a modern illustration of the pecuniary interest prohibition,209 and In re Murchison and Mayberry carved out a narrow rule requiring recusal for judges adjudicating criminal contempt charges when the judge was in some way “embroiled” in the earlier proceeding that led to the contempt charge.210 If a common thread runs through these cases, it is the Tumey principle:

Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.211

Each of the Court’s pre-Caperton recusal cases, with the exception of Mayberry, quoted the Tumey dicta.212

Despite Tumey’s sweeping language, the Court’s conception of constitutionally mandated recusal in the pre-Caperton recusal cases confined itself to two categories: pecuniary interest213 and the criminal contempt context.214 The Caperton majority thus was disingenuous in two respects. First, it reframed its past recusal cases as examples of a broader principle, when they were actually examples of two narrow categories. Second, it used this reframing to introduce a wholly new standard for constitutionally mandated recusal—“probability of actual bias”—while pretending that such had always been the standard.”

I have much more I can post if you continue to claim that my statement was not accurate. The bottom line is that you try not to accept the fact that Tom Means perpetrated an unconstitutional legal proceeding on Monday.

In response to mike rose you said:

“TBM,

You are all sour grapes because Mr. Means apparently wants to be fair to the landlords and does not endorse stealing.”

Tom Means has an equally required conduct to be fair to the tenants in his role as an RHC member. Simply put, your claim that he must be fair to landlords in effect means he is unfair to tenants.

There is no stealing occurring. Why do you use words that do not apply? Rent control is not stealing anything. It is a constitutional market regulation. Stealing can only occur be definition from USLegal (Web Link) stated here:

“Steal Law and Legal Definition

“Steal means to take the property of another without right or permission. It can be taking of personal property illegally with the intent to keep it unlawfully. It also refers to taking something by larceny, embezzlement, or false pretenses.”

Property is not being taken in this situation. You know that. Title and ownership of property is not taken from the property owners. It goes on to say:

“The following is an example of a case law defining stealing:

'Stealing commonly refers to larceny and larceny is the unlawful taking or carrying away of the goods of another with the intent to convert them to your use.' [United States v. Kemble, 197 F.2d 316 (3d Cir. N.J. 1952)]”

Since the rent control does not allow tenants to sell the property, there is no stealing going on. You know that.

BM, I'll ask again, can you provide proof to your slanderous comments about Mr Means?

Also, your response to mike rose says "simply put, your claim that he must be fair to landlords in effect means he is unfair to tenants". Hmmmmm, can we also say that "he must be fair to tenants in effect means he is unfair to landlords"?

You, kind sir, have unsound, prejudiced and quite frankly bizarre rhetoric.

In response to mvresident2003 you said:

“BM, I'll ask again, can you provide proof to your slanderous comments about Mr Means? “

Slander is defined as:

Slander

n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements, such as an untrue accusation of having committed a crime, having a loathsome disease or being unable to perform one's occupation, are treated as slander per se since the harm and malice are obvious and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.”

However, you must prove what I am discussing is “untruth”. Everything I have documented is not false. You simply do not like the fact that Tom Means did take advantage of his political connections. You cannot deny that. You said:

“Also, your response to mike rose says "simply put, your claim that he must be fair to landlords in effect means he is unfair to tenants". Hmmmmm, can we also say that "he must be fair to tenants in effect means he is unfair to landlords"?”

Again, no one acting as a “decision-maker” can be allowed under the U.S. Constitution to be biased or express bias. During the hearing, Tom Means make clear statements demonstrating he was making a judgement without any substantial evidence to support it. I will eventually provide the time marks regarding his comments on the public archive. The City attorney and the RHC counsel clearly told the RHC that this process was not within the legal standards of the hearing process. I will also do the same regarding this. You said:

“You, kind sir, have unsound, prejudiced and quite frankly bizarre rhetoric.”

That is your opinion. You have the right to have it. But clearly instead of discussing the topic with objective information, you resort to a personal attack. I will not request to have your post removed because it demonstrates that the only thing you can do is try to criticize others with your subjective standards. I want the public to make up its own mind. You are not an authority to dictate what others say are either “unsound, prejudiced and quite frankly bizarre rhetoric”.

In response to Darin you asked for it. Here is a breakdown of the hearing that occurred on Monday and can be verified by listening to the archive.

0:25:00 The legal definition of substantial evidence was stated.

00:26:15 Tom claims there was an “inference” there was no “inference” made by the hearing officer. The hearing officer made a determination based on the preponderance of evidence. That was not on the record and was not within scope of the hearing.

01:08:00 Vanessa Honey questioned the lawyers regarding validity of regulations, the lawyers stated the regulations are not to be adjudicated regarding the RHC, Any changes made must be done at the court level because making changes now would cause a due process problem. You cannot change regulations while their being enforced so that they benefit any party.

01:10:30 Matt questioned if the RHC can overturn the hearing officers determination of the tenants satisfactory preponderance of evidence that the rents were not below comparable unit rates based on the situation. The attorney reported that only if the RHC could provide substantial evidence contrary to the hearing officer’s determination could the decision be reversed, and that under the law that is the only action allowed, if the RHC could not do so, the lawyer said you must affirm the decision.

01:12:30 Tom asked about if VEGA must be used regarding “average” rents in the city, he never addressed the “comparable unit” standard. He knows that if you use the “comparable unit” standards must weigh on the VEGA levels. The answer from the lawyers was that the hearing officer made a decision based on not rebutted evidence by the landlord.

01:14:50 Tom Means tries to disregard the “comparable-unit” standards and he claims that the the tenants are not allowed to have that analysis for the petition process. VEGE is clear, it must be based on COMPARABLE UNITS and not a city average. The hearing officer being a Real Estate law expert know that the evidence supports her decision.

01:18:00 He makes the argument that the universal rent increase will not provide fair rate of return. VEGA is a adjustment on a building basis and not unit.

01:22:00 TOM and HONEY said they want to change the regulations after the fact of a petition filed and had the case decided. To me that indicates he has no plan to resign at this time. That will need to be scheduled for further meetings. This is an indication that Tom had no intention to resign on Monday at that time.

01:23:00 Matt asked Lindsey about the lack of rebuttal evidence regarding the “Comparable Unit” standards. She did not answer the question, only that her current maintenance was a good record. She never made any evidence to prove that a “Comparable Unit” was getting a higher rent than she was.

01:29:30 Tom asked about CPI impact and the petition had nothing to do with it. Tom knew this and the staff attorney told him it was irrelevant, but he pushed it into the hearing anyway. Thereby producing “facts not in evidence” thus impacting the legitimacy of the deliberations.

01:30:00 Honey asked about operating expenses verses management expenses. However if your job title and description involves the term “manager” or “management” than that is clearly a “management” expense versus an “operating” expense. Your only action will be to rewrite the job title or the job description to correct that problem. Then she can refile a petition.

01:35:00 Honey asks about the unit based rent increases regarding the VEGA adjustment and maintenance. The fact is VEGA case law does not allow for “unit-based” rent increases based on VEGA. No thorough inspection is done annually regarding the property only the “City Fire Inspection”. Lindsey complained that the problems of the units by tenants were never reported. They claimed that they inspected the property every 6 months during fire detector battery replacement. . How could they not see the problems that the tenants reported if they were performing good inspections?

01:45:00 The tenants representative pointed out all new questions made prior not in the hearing record was simply not ALLOWED to be considered under the hearing process.

02:08:00 Honey again mixed up the idea that VEGA is not based on HUD FMR because VEGA is building wide, and HUD FMR are unit based. The petition never made a request regarding HUD FMR unit based adjustments. Given that there was no HUD FMR request, the reasoning of Honey was significantly incorrect and unsubstantiated.

02:34:00 Honey again proposes that the HUD FMR was a part of the petition. The fact is HUD FMR are a UNIT based adjustment. VEGA is a building wide adjustment standard. There is NO PETITION on file by Lindsey to request a HUD FMR adjustment. Thus she conflated HUD FMR and VEGA in a manner that is NOT ALLOWED. Again “MARKET RATE” is a city wide average NOT TAKING INTO ACCOUNT COMPARABLE UNITS. THAT WAS THE BASIS OF THE HEARING OFFICERS DECISION. If you read the CSFRA it states:

Section 1710. - Petitions for individual rent adjustment—bases.

A Landlord or a Tenant may file a Petition with the Committee seeking adjustment, either upward or downward, of the Rent for any given tenancy in accordance with the standards set forth in this Section, and using the procedures set forth in Section 1711 herein and implementing regulations. A Petition shall be on a form provided by the Committee and, if made by the Landlord, shall include a declaration by the Landlord that the Rental Unit complies with all requirements of this Article.

(a) Petition for Upward Adjustment—Fair Rate of Return: To effectuate the purposes of this Article and the requirements of law, a Landlord may file a Petition for an upward adjustment of the Rent to ensure a fair and reasonable rate of return. It is the intent of this Article that individual upward adjustments in Rent be granted only when the Landlord demonstrates that such adjustments are necessary to provide the Landlord with a fair rate of return. The Committee shall promulgate regulations to further govern Petitions filed pursuant to this Subsection in accordance with law and the purposes of this Article.

(2) Fair Rate of Return - Factors. In making any upward adjustment to the Rent based upon a Landlord's Petition to ensure a fair rate of return, the Hearing Officer or Committee shall consider relevant factors, including but not limited to, the following:

(G) THE PATTERN OF RECENT RENT INCREASES OR DECREASES IN THE RENTAL UNIT DURING THE OCCUPANCY OF THE CURRENT TENANT. (3) “

THAT WAS THE BASIS OF THE HEARING OFFICERS DECISION. THE LAW DOES ALLOW THAAT THE HEARING OFFICER ONLY DETERMINE THE HISTORY OF THAT APARTMENT OWNED BY THAT TENANT ON THAT OCCUANCY. THE LAW SIMPLY OVERRIDES THE RHC OPINIONS AND THE HEARING OFFICER DID THE CORRECT EVIDENTIARY ANALYSIS.


02:42:00 Tom Means again tried to avoid the concept of “COMPARABLE UNITS” He wants to support the argument that NO COMPARISON TO COMPARABLE UNITS SHOULD OCCUR regarding VEGA. That would violate case law. If you want me to prove it, I can find the cases that state that.

02:48:00 Tom claims an “inference”. The evidence was clear, he just wanted to discredit the expert decision of a hearing officer with expertise in Real Estate.

02:49:00 Tom claimed that the hearing officer doesn’t know what impacts the variety of issues regarding the “COMPARABLE UNITS” are. He actually said “I don’t think she knows what she’s doing”. That is a personal opinion, not demonstrated by any evidence by Tom Means. THAT IS BIAS. Again the hearing officer is an expert in Real Estate Law. His comment was simply unsubstantiated and was a personal attack against the RHC’s own hearing officer.

02:57:00 Tom Means demanded a remand on the decision be reversed regarding equal application of upward adjustment. This is another situation where he said “we should revisit the regulations we made in the future”. Thus he is making a declaration of his intent to NOT retire during the hearing. Evidence that at that time he had no intention of leaving.

02:59:00 Honey makes the false claim that equal rent adjustment completely denies fair rate of return. The sum total of the rent increase DOES provide fair rate of return based on the data provided by the petitioner. Honey is simply wrong. She assumes that vacancy will be impacted, that is not a question of the RHC, only the regulations passed by the RHC. The sum total put together is equal to the fair rate of return standard. Another unsubstantiated argument with no preponderance of evidence to back it up.

03:000:00 Tom means states “I’M READY IF IT COMES BACK TO RULE AGAINST THE HEARING OFFICER. THIS IS THE ALLOCATION I AM GOING TO SUPPORT” However, the regulations and the case laws regarding VEGA simply do not agree with his opinion. THIS WAS THE DEMONSTRATION OF UNSUBSTANTIATED BIAS AND “ABUSE OF HIS DISCRETION”

Tom Means has been guilty of this for years. And the CAA and the CAR has ben paying for it so they are guilty as well. What you ask? This article from Bloomberg, you may need to use Internet Explorere to read it (Web Link:

"Economists Are Cheating Their Profession

Presenting opinion as fact does everyone a disservice.

By Mark Buchanan

‎August‎ ‎1‎, ‎2017‎ ‎04‎:‎00

Many economists genuinely want to make their field more scientific -- grounded in empirical evidence rather than in theory or, worse, ideology. Yet a recent article by four prominent academics demonstrates the extent to which ideology remains a problem.

My Bloomberg View colleague Justin Fox has highlighted the motivated reasoning in the article, penned by a team of conservative economists including R. Glenn Hubbard of Columbia Business School and John Taylor of the Hoover Institution at Stanford University. They argue that the current economic stagnation has nothing to do with a hangover from the financial crisis, and that policies such as lower taxes and cuts in social spending would markedly boost growth. They say this follows from objective analysis of data on past crises and recoveries.

As Fox notes, the analysis actually rests on a conveniently biased selection of data. It includes among past financial crises several moderate downturns that most economists don’t think of as crises, and rather bizarrely counts the grinding decade of the Great Depression as a “rapid recovery” from the recession of 1929.

Worse, the article projects a completely unjustified sense of certainty. “Economic theory and historical experience,” it boldly asserts, “indicate economic policies are the primary cause of both the productivity slowdown and the poorly performing labor market.” This willfully misrepresents current thinking. Economists hold diverse views on the roots of the recent malaise, and remain divided and uncertain about the fundamental causes of growth.

The authors have every right to express their views and opinions in forceful terms. But when professional economists write as experts and claim theory as a basis for their views, they also have a duty to present that theory -- and other economists’ thoughts about it -- honestly. Their failure to do so is “unprofessional,” as University of California at Berkeley economist Brad DeLong rightly put it. It doesn’t reflect the honest, evidence-based approach that most economists aim for.

The question, then, is what, if anything, the profession will do about it. Does it have standards? If so, can it enforce them?

Just like regulators, economists can be captured by powerful corporations and individuals, as University of Chicago economist Luis Zingales has argued. Conservatives in particular have been successful in subverting research for their own ends, especially through the creation of think tanks and by funding economists adept at disguising ideological arguments in objective academic language. Concerted efforts date back at least to the 1980s. In her recent -- and controversial -- book “Democracy in Chains,” historian Nancy MacLean offers billionaire industrialist Charles Koch’s backing of libertarian economist James Buchanan as an example.

How can the profession combat such capture? Zingales has suggested public shaming, following the example of media efforts such as the film “Inside Job,” which exposed a number of prominent academics for pushing the benefits of modern finance while hiding considerable income from major Wall Street firms. Among the economists scrutinized was Columbia’s Hubbard.

Shaming seems appropriate. After all, public trust is a resource from which all economists benefit. If they want to preserve it, they should draw guidance from Nobel Prize winner Elinor Ostrom. She showed that successful management of such resources typically requires an effective means to maintain group standards and values -- for example, by punishing and deterring self-serving behavior among individuals within the group.

Economists who present their opinions as fact, or who misrepresent the consensus, are cheating at the expense of the entire profession. They shouldn’t get away with it."