Agenda packet — Berkeley City Council, June 13, 2023 (part 2 of 2)

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Method of Assessment
As previously discussed, the proposed Assessments will provide comprehensive Improvements that will clearly confer special benefits to properties in the proposed District. The allocation of special benefits to property is partially based on the type of property and the size of property.

The development of an Assessment methodology requires apportioning to determine the relative special benefit for each property. To determine the sp ecial benefit received by individual parcels, the use of that parcel must be considered. Each category of property can benefit from street lights in a unique way, and those characteristics must be quantified. As noted above, the special benefit factors are as follows:
 Improved visibility and safety
 Improved access, navigation and traffic safety
 Improved community character and vitality
The basis for apportioning Assessments is traffic generated to and from a particular parcel. This is used because the amount of traffic generated by a parcel is directly proportional to, and effectively models, the relative quantity of the three special benefit factors. For instance, the more people that come and go from a site, the more the site benefits from the improved visibility and safety. The same reasoning applies to the other special benefit factors.

Residential Traffic
The typical single‐family residence (“SFR”) generates approximat e l y t e n v e h i c u l a r t r i p s per day. Condominium units generate approximately eight trips p er day and apartment units generate approximately six trips per day per unit. The trip generation rates that are used for each land use are based on the trip generation rates published by the San Diego Association of Governments and the Encinitas Ranch Austin Foust Traffic Study. The trip generation rates are included in Appendix A of this report.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Non‐Residential Traffic
Trip generation for non‐residential parcels vary depending on their designated land use as well as size of parcel. The trip generation data for non‐res idential land uses are based on trips per acre. For instance, a commercial parcel on two acres typically will have twice the traffic of a commercial parcel on one acre. It follows that the two‐acre parcel will then receive twice the benefit from the street lighting as the one‐acre parcel. Various land uses were grouped into categories with similar traffic characteristi cs, resulting in the fee categories shown later in this report.

Darkness
Non‐residential parcels typically do not operate all night long. The average period of darkness is 12 hours, but non‐residential uses will only operat e for approximately three hours of that time. For that reason, a non‐residential darkness factor of (3 ÷ 12 =) 25% is applied to those parcels. For two non‐residential categories, t h e d a r k n e s s f a c t o r i s different, as shown below:
 Offices and banks typically close earlier than other non‐residential uses so they are assigned a darkness factor of 12.5%.
 Hotels, motels and boarding houses typically have activity further into the night than other non‐residential uses, so they are assigned a darkness factor of 50%.

Non‐residential trip generation is then adjusted for the darkness factor for each rate category.

Single‐Family Equivalents
The SFR category is used as the baseline for calculating the sp ecial benefit for all other land uses and sizes. Each rate category is assigned a single‐fa mily equivalent (“SFE”) rate using the following formula:

ADT x Darkness Factor
ADT for SFR
SFE Rate=

Where:
 ADT = Average Daily Trips for each category
 ADT for SFR = ADT for single‐family residential, which is used as a baseline figure for SFE rate
 SFE Rate = SFEs per unit shown (parcel, [living] unit, or acre) The results of these calculations for each rate category are shown in Table 4 below.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Table 4 – Single‐Family Equivalent Rates
.

Landuse Category ADT
Darkness
Factor
Adj
ADT SFE Rate Unit
Residential
Single Family 10 1 10 1.000 parcel
M ulti‐Family < 5 units 8 1 8 0.800 unit
M ulti‐Family 5 or more units 6 1 6 0.600 unit
Condominium 8 1 8 0.800 parcel
Mobile Home 5 1 5 0.500 unit
Multiple SFR on parcel 10 1 10 1.000 unit
Non‐Residential
General Commercial 600 0.25 150 15.000 acre
Industrial / Warehouse 60 0.25 15 1.500 acre
Auto Repair 400 0.25 100 10.000 acre
Hotel / Motel / Boarding 200 0.5 100 10.000 acre
Hospital 250 0.25 62.5 6.250 acre
Retirement Home 50 0.25 12.5 1.250 acre
School / Day Care 90 0.25 22.5 2.250 acre
Medical / Dental / Vet 500 0.25 125 12.500 acre
Church 30 0.25 7.5 0.750 acre
Mortuary 10 0.25 2.5 0.250 acre
Recreational 100 0.25 25 2.500 acre
Parking / Transportation 200 0.25 50 5.000 acre
Mini Storage 30 0.25 7.5 0.750 acre
Office 300 0.125 37.5 3.750 acre
Bank 1000 0.125 125 12.500 acre
Park / Open Space / Agriculture 2 0.25 0.5 0.050 acre
Vacant 0 na

Annual Assessment Increase
The Assessment is subject to an annual adjustment tied to the San Francisco‐Oakland‐ Hayward Consumer Price Index‐U as of December of each succeeding year (“CPI”), with a maximum annual adjustment not to exceed 3%. In order for the Ci ty’s dedicated Streetlight fund revenue sources to satisfy cost requirements i nto the future, the maximum rate per SFE is calculated based upon the sum of the 1982 assessment and the Street Light Assessment District 2018 Assessment.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Table 5 – Maximum Single‐Family Equivalent Rate Calculation

Duration of Assessment
The Assessments may be continued every year after their formation, so long as the public Improvements need to be maintained and improved and the City requires funding from the Assessments for these Improvements in the District. As note d previously, the Assessment can continue to be levied annually after the City Council approves an annually updated Engineer’s Report, budget for the Assessment, Improvements to be provided and other specifics of the Assessment. In addition, the City Council must hold an annual public hearing to continue the Assessment.

Appeals and Interpretation
Any property owner who feels that the Assessment levied on the subject property is in error as a result of incorrect information being used to apply the foregoing method of assessment, may file a written appeal with the City of Berkeley Public Works department.

Any such appeal is limited to correction of an assessment durin g the then current or, if before July 1, the upcoming fiscal year. Upon the filing of any such appeal, the City of Berkeley City Engineer or his or her designee will promptly review the appeal and any information provided by the property owner. If the City Engineer or his or her designee finds that the assessment should be modified, the appropriate changes shall be made to the assessment roll. If any such changes are approved after the assessment roll has been filed with the County for collection, the City Engineer or his or her designee is authorized to refund to the property owner the amount of any approved reduction. Any dispute over the decision of the City Engineer or her or his designee shall be referred to the Public Works Director and the decision of the Public Works Director shall be final.

FY 2023 FY 2024
2018 District Maximum for FY 23 709,845.29$ 709,845.29$ 1982 District Maximum for FY 23 1,422,965.52$
Total for FY 23 2,132,810.81$
Maximum Increase of 3% of Total for FY 23 63,984.32$
FY 24 Maximum Assessment 773,829.61$
Total SFEs 46,277.819
FY 24 Maximum Rate per SFE 16.72$

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Assessment Statement
WHEREAS, on March 21, 2023, the City Council of the City of Berkeley, County of Alameda, California, adopted a Resolution initiating proceedings for the levy of Assessments for fiscal year 2024 within the Street Light Assessment District 20 18, pursuant to the provisions of the Landscaping and Lighting Act of 1972 and Arti cle XIIID of the California Constitution (collectively “the Act”);
WHEREAS, the City of Berkeley directed the undersigned Engineer of Work to prepare and file a report presenting an estimate of costs, a diagram for the Assessment District and an assessment of the estimated costs of the Improvements upon all assessable parcels within the Assessment District, to which the description of the proposed Improvements therein contained, reference is hereby made for further particulars; NOW, THEREFORE, the undersigned, by virtue of the power vested in me under the Act a n d t h e o r d e r o f t h e C i t y C o u n c i l o f t h e C i t y o f B e r k e l e y , h e r eby make the following assessment to cover the portion of the estimated cost of the Improvements, and the costs and expenses incidental thereto to be paid by the Assessment District.

The amount to be paid for the Improvements and the expense inci dental thereto to be paid by the City of Berkeley Street Lighting Assessment Distric t 2018 for the fiscal year 2024 are generally as listed in Table 1.

As required by the Act, an Assessment Diagram is hereto attached and made a part hereof showing the exterior boundaries of the City of Berkeley Street light Assessment District 2018. The distinctive number of each parcel or lot of land in t he City of Berkeley Street light Assessment District 2018 is its Assessor Parcel Number appearing on the Assessment Roll.

And I do hereby assess and apportion the net amount of the cost and expenses of the Improvements, including the cost s and expenses incident thereto , upon the parcels and lots of land within the City of Berkeley Street Lighting Assess ment District 2018, in accordance with the special benefits to be received by each parcel or lot, from the Improvements, and more particularly set forth in the cost estim ate and method of assessment hereto attached and by reference made a part hereof.

The Assessments are made upon the parcels or lots of land withi n the City of Berkeley Street Lighting Assessment District 2018 in proportion to the s pecial benefits to be received by the parcels or lots of land from the Improvements.

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Each parcel or lot of land is described in the Assessment Roll by reference to its parcel number as shown on the Assessor's Maps of the County of Alameda for the fiscal year 2018. For a more particular description of said property, reference is hereby made to the deeds and maps on file and of record in the office of the Count y Recorder of the County.

I hereby place opposite the Assessor Parcel Number for each parcel or lot within the Assessment Roll, the amount of the assessment for the fiscal year 2024 for each parcel or lot of land within the City of Berkeley Street Lighting Assessment District 2018.

Dated: April 6, 2023

E n g i n e e r o f W o r k

B y ______________________________
J e rry Bradshaw, License No. C48845

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Assessment Diagram
The boundaries of the City of Berkeley Street light Maintenance Assessment Districts and Annexations are displayed on the Assessment Diagram below.

Figure 1 – Assessment Diagram

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Appendix A – SANDAG Trip Generation Tables

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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City of Berkeley
Street Lighting Assessment District 2018
FY 2024

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Appendix B – Assessment Roll
An Assessment Roll (a listing of all parcels assessed within the City of Berkeley Street Lighting Assessment District 2018 and the amount of the assessment) has been filed with the City Engineer, and is, by reference, made part of this report and will be available for public inspection during normal office hours.

E a c h l o t o r p a r c e l l i s t e d o n t h e A s s e s s m e n t R o l l i s s h o w n a n d illustrated on the latest County Assessor records and these records are, by reference mad e part of this report.

These records shall govern all details concerning the description of the lots or parcels.

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Fair Campagn Practices Commission

PUBLIC HEARING
June 13, 2023
To: Honorable Mayor and Members of the City Council
From: Jim Hynes, Chair, Fair Campaign Practices Commission Submitted by: Samuel Harvey, Secretary, Fair Campaign Practices Commission Subject: Amendments to Berkeley Election Reform Act; Amending Berkeley Municipal Code Chapter 2.12

RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt first reading of an ordinance amending the Berkeley Election Reform Act (BMC Chapter 2.12) to modify the forms required to open a campaign committee, change the deadline to qualify for the public financing program and make associated amendments, clarify the rules for public financing candidates that do not qualify for the ballot, add an automatic inflator for the amount a public financing candidate can give to their own committee, clarify post- election processes for public financing candidates, modify the threshold to create a campaign committee, and clarify the rules for returning certain types of contributions.

FISCAL IMPACTS OF RECOMMENDATION
None.

CURRENT SITUATION AND ITS EFFECTS
These recommended amendments to the Berkeley Election Reform Act (“BERA”) were approved by the Fair Campaign Practices Commission (“FCPC”) at its regular meeting of May 18, 2023.

Action: M/S/C (Saginor/Ching) Motion to approve staff’s recommended BERA amendments for submission to the City Council.

Vote: Ching, Hernandez, O’Donnell, Saginor, Hynes; Noes: none; Abstain: none;

Absent: Blome.)
Pursuant to Berkeley Municipal Code Section 2.12.051, BERA may be amended by the “double green light” process. This process requires that the FCPC adopt the amendments by a two-thirds vote, and the City Council hold a public hearing and adopt the amendments by a two-thirds vote.

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BACKGROUND
The proposed amendments and the narrative context for each amendment are reproduced from the May 18, 2023 FCPC agenda packet in Attachment 1.

The proposed amendments are supported by MapLight, a local advocacy and transparency group that contributed significantly to the drafting of the Fair Elections Act of 2016 (Public Financing Program).

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
The proposed BERA amendments will simplify the process for candidates and campaign committees and add clarity to the BERA for several processes in order to facilitate proper use of public matching funds and appropriate enforcement by staff and the FCPC.

ALTERNATIVE ACTIONS CONSIDERED
None.

CITY MANAGER
Staff concurs with the content and recommendations of the Commission’s report.

CONTACT PERSON
Jim Hynes, Chair, Fair Campaign Practices Commission, (510) 981-6998 Samuel Harvey, Commission Secretary, Fair Campaign Practices Commission (510) 981- 6998
Attachments:

1. FCPC Agenda Item with Narrative Context for Proposed Amendments

2. Letter from MapLight in Support of Amendments

3. Proposed ordinance amending BERA

4. Public Hearing Notice

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Proposed BERA Amendments for 2023
#1 Sections 2.12.255, 2.12.260, and 2.12.265 Statement of Organization The requirements for filing the statement of organization are largely duplicative of state law. The requirements for the Berkeley Statement of Organization was adopted the same year as the state Political Reform Act, so it needed to be very prescriptive at the outset because the state Form 410 did not yet exist. Under state law, all committees must file a Form 410, which makes the City form an extra, duplicative filing.

The information that BERA requires that is not captured in the State Form 410 is not essential for public disclosure, enforcement, or administration. The pieces of information are: funds on hand at the time of formation, candidate address (when applicable), and the dissolution statement. The candidate address is listed on the State Form 501 which is required to be filed before any funds are raised or spent in connection with an election.

The filing process has become more complex, especially for public financing candidates. There are several new forms that public financing candidates must file during the formation process.

These revisions will eliminate the requirement to file a superfluous form and streamline the process for all candidates.

Proposed Code Amendments:

2.12.255 Statement of organization--Committee required to file.

A. Subject to the exception in Section 2.12.255(B), every committee under Section 2.12.095 of this chapter shall file with the City Clerk a statement of organization, as defined in Government Code Section 84101 et. seq., or its successors, within ten days after it is formedqualifying as a committee pursuant to Section 2.12.095.

B. Every committee that forms qualifies during the period between the closing date of the last pre-election statement and the election shall file with the City Clerk, by hand delivery or by such means as the commission may prescribe, a statement of organization no later than the close of the next business day.

C. The date on which a committee formedqualified, and not the date on which the committee filed its statement of organization, shall determine the committee’s obligation to file the campaign statements and late contribution reports required by this chapter. All committees, whether formed qualified before or after the date of the final pre-election statement, but before the date of an election, are subject to late contribution reporting requirements.

2.12.260 Repealed.Statement of organization--Information required.

The statement of organization required by Section 2.12.255 shall include:

A. The name, street address and telephone number, if any, of the committee; Attachment 1

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B. The name, street address and telephone number of each candidate, if any, with which the committee is affiliated or connected;
C. The full name, street address and telephone number, if any, of the treasurer and other principal officer;
D. The full name and office sought by each candidate and the title and ballot number if any, of each measure, which the committee supports or opposes;
E. A statement of whether the committee is independent or controlled, and if it is controlled, the name of each candidate or committee by which it is controlled or with which it acts jointly; F. The disposition of surplus funds which will be made in the event of dissolution; G. The account number and name of the bank at which the campaign checking account, required by Section 2.12.250(A), is maintained; if the information required by this section is unavailable at the time of filing, the statement of organization, the filer shall promptly submit an amended statement after such information becomes available; H. The cash on hand at the time of filing the statement of organization; I. Such other information as shall be required by the rules or regulations of the commission consistent with the purposes and provisions of this chapter.

2.12.265 Repealed. Statement of organization--Change of information--Amendment required.

Whenever there is a change in any of the information contained in the statement of organization, an amendment shall be filed within ten days to reflect the change.

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#2 Section 2.12.168 Deadline for Qualification
The need for this amendment became apparent in the 2022 election, the first election in which School Board and Rent Board candidates were able to participate in public financing.

Currently, the deadline to qualify for public financing is the same day as the end of the candidate nomination period. This creates a very difficult situation for the candidate. Completing the nomination paperwork to qualify for the ballot and obtaining and submitting the required public financing contributions and documentation are huge tasks. Most candidates are first-time candidates with volunteer treasurers, rather than paid professional treasurers.

In 2022, several candidates had great difficulty completing both tasks simultaneously, and two candidates were initially disqualified as participating candidates because their materials were not filed by the deadline. Also, staff is unable to provide additional assistance to public financing candidates at the deadline due to the demands of receiving and processing candidate nomination documents at the same time.

The proposed amendment changes the deadline to qualify for public financing to 14 days before the election. The 14-day deadline is the close of the qualification period for write-in candidates.

However, write-in candidates have fewer forms to file as a candidate and their candidate filing period is longer, so they are less impacted by the filing date matching the public financing deadline.

This amendment allows candidates to start their public financing work after they have completed their candidate requirements. This timeline is consistent with the general past practice of campaign committees prior to public financing when most candidates, especially first-time candidates, started their fundraising activities after completing their nomination documents and qualifying for the ballot. Using the 14-day deadline also factors in write-in candidates and allows for there to be just one deadline for all candidates.

Proposed Code Amendments:

2.12.168 Qualifying period.
"Qualifying period" means the period beginning on the day after the date of the most recent general election for the specific office or seat that a candidate is seeking and ending at the close of regular business hours, 14 days before the date of the election for which the candidate is seeking office. at the close of the nomination period.

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#3 Section 2.12.510 Candidate Statement Notice
If the deadline to qualify for public financing is moved to 14 days before the election, then the notice regarding candidate participation would need to change from the voter guide to a web posting. This is due to the County’s strict publishing deadlines. Cities are required to provide candidate statement text to the Registrar of Voters immediately after the close of the nomination period. Even without the change to the deadline, it has been very difficult to meet the County’s publishing deadlines when initial qualifying requests are being reviewed for several days after the filing deadline. And, as we saw in the last election, if there is an appeal of the candidates qualification status, the determination on qualification may not occur for several days or a few weeks after the filing deadline. City staff can make the web notice very prominent on the web as seen in the example below (Figure 1).

Proposed Code Amendments:

2.12.510 Candidate statement notice.

A candidate certified as a Fair Elections program participant shall be identified as such by a notice prominently posted on the City websiteprinted on the same page as the candidate’s statement of qualifications distributed to voters pursuant to City Charter Article III Section 6.1.

Figure 1: Sample notice on the City website.

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#4 Section 2.12.505.H.1 Return of funds upon failure to qualify as a candidate.

The language “remain a candidate” is unclear and not tied to the official status of a candidate through the nomination process. This amendment will clarify the candidate status in a manner than can be verified by official documents filed with the City Clerk.

The second amendment in this section clarifies that if a participating candidate does not qualify for the ballot, they must refund the matching funds to the City before refunding individual contributors.

Proposed Code Amendments:

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#5 Section 2.12.545 Cost of living adjustments.

Now that the non-participating $250 contribution limit is indexed, this amendment is needed to index the $250 amount that a participating public financing candidate can contribute to their own committee. Keeping these amounts tied will create fairness and consistency for all candidates.

In addition, we have added non-qualified contributions and non-monetary contributions to the dollar amounts are indexed after each election.

Proposed Code Amendments:

2.12.545 Cost of living adjustments.

The Commission shall adjust the dollar amounts specified in Sections 2.12.167, 2.12.500.A.3,

2.12.500.A.6, 2.12.500.A.7, 2.12.500.A.8, 2.12.505.B and 2.12.530.B.3.b for cost of living changes pursuant to Section 2.12.075 in January of every odd-numbered year following Council implementation. Such adjustments shall be rounded to the nearest ten dollars ($10) with respect to Sections 2.12.167, 2.12.500.A.3 and 2.12.530.B.3.b and one thousand dollars ($1,000) with respect to Section 2.12.505.B.

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#6 Section 2.12.505 Fair Elections Fund payments.

Amendment 1 (2.12.505.H.5) clarifies the process and requirements for retiring debt and continuing to raise funds after the 60-day deadline to return unspent funds. All committees should be able to retire debt within 60 days after the election, and they can receive matching funds until 30 days after the election (Amendment 2). It is important to retain the $60 limit after the 60-day deadline so that a candidate does not disqualify themselves from participating in public financing in the next election.

Amendment 2 (2.12.505.J) adds a deadline to submit matching funds requests after Election Day. This will allow for adequate time to process the requests and issue the matchings funds before the 60-day deadline to return unspent funds.

Amendment 3 (2.12.505.K) clarifies that a participating candidate may not withdraw from the program and then raise money at the non-public financing level. This is in line with the intent of the program, especially with the candidate’s certification on the Application for Participation, the published notice of participation, and the contributor’s certification on the qualified contribution receipt.

Proposed Code Amendments:

2.12.505 Fair Elections Fund payments.

H.
1). Unspent campaign funds of any Participating Candidate who does not remain a candidate for the ballot at the election for which the funds were distributed, up to the total amount of funds that the participating candidate received as Fair Election Funds distributions in that election cycle and after accounting for campaign debts and expenditures, must be returned to the City within 30 (thirty) days of the determination on the qualification of the candidate. All funds returned under this paragraph must be accompanied by any required supporting documentation.
2). Any campaign funds that remain unspent by a Participating Candidate following the date of the election for which they were distributed, up to the total amount of funds that the Participating Candidate received as Fair Elections Funds distributions in that elections cycle and after accounting for campaign debts and expenditures, must be returned to the City, within sixty (60) days after the date of the election. All funds returned under this paragraph must be accompanied by any required supporting documentation. 3). All unspent campaign funds returned to the City shall be deposited in the Fair Elections Fund pursuant to the City Charter.
4). The City Clerk shall immediately refer to the Commission for enforcement any participating candidate who does not return unspent funds as required by this subsection. 5). After the deadline to return unspent funds in 2.12.505.H.2, a participating candidate may continue to raise funds in accordance with Article 8 of Chapter 2.12 to pay campaign-

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related debt from the most recent election. Any such contributions received shall not be eligible for matching funds.

I. Any request by a Participating Candidate for a refund of any amount of unspent campaign funds previously repaid to the City, for a qualified campaign expenditure or other permissible campaign purpose, shall be submitted to the Commission to approve, in whole or in part, or deny. The Commission shall make a final determination on the refund within 45 days of receipt.

J. Requests for matching funds may be submitted no later than 30 days after Election Day for the election at which the participating candidate qualified as a candidate.

K. Upon approval of a participating candidate’s Initial Qualifying Request, the candidate is prohibited from withdrawing from the Public Financing Program and receiving contributions pursuant to Section 2.12.415 for the same office at the same election for which they arewere a participating candidate.

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#7 Section 2.12.095 Committee
The $250 contribution limit is now indexed to $270 and it will continue to rise in future elections.

Thus, the contribution limit and the threshold to qualify as a committee are now un-linked. The section setting the threshold to qualify as a committee has not been amended since 1976 and it is due for an adjustment. Indexing the committee qualification amount would be very confusing since it will change every election. Staff recommends setting a new committee threshold of $1,000 which will make the committee threshold the same as the required electronic filing threshold. A committee threshold of $1,000 is half of the state threshold ($2,000) so Berkeley would still retain a stricter threshold that creates more disclosure than state law.

Proposed Code Amendments:

2.12.095 Committee
"Committee" means any person or combination of persons that directly or indirectly receives contributions which total more than one thousandtwo hundred fifty dollars in a calendar year or makes expenditures exceeding more than one thousandtwo hundred fifty dollars in a calendar year for the purpose of influencing or attempting to influence the action of voters for or against the nomination or election of one or more candidates, or the passage or defeat of any measure, including any committee or subcommittee of a political party.

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#8 Amendment - New Section
Currently, the Fair Elections Act does not contain any specific provisions regarding the return of contributions by participating candidates. This new section will establish rules that staff believes are consistent with the intent and purpose of the Fair Elections Act.

Committees must have the ability to return contributions. They may need to return a contribution because the receipt of the contribution violates BERA. They also must have the ability to return contributions that they do not wish to receive to preserve their speech and freedom of association rights. A candidate and their committee cannot be forced to keep a contribution from an individual with whom they do not want to associate.

Of course, if a committee is returning a contribution for which it received matching funds, it must return the associated matching funds to the City.

Proposed Code Amendments:

2.12.507 Return of Contributions by Participating Candidates A. Notwithstanding the requirements in Section 2.12.505.H.1, if a participating candidate returns a qualified contribution for which they have requested and received matching funds, they must immediately return all said matching funds to the City.

B. Notwithstanding the requirements in Section 2.12.505.H.1, a participating candidate may return a non-qualified contribution to the contributor at any time without triggering any requirement that they return matching funds.

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2140 Shattuck Ave. Ste. 603 | Berkeley, CA 94704 | 510-8 68-0894 | [email protected]
May 9, 2023
Via e
mail
Dear Ci
ty of Berkeley Fair Campaign Practices Commission,
MapLight, a nonpartisan nonprofit that works to improve U.S. democracy, leads the coalition in support of public funding of elections in Berkeley, including the passage and implementation of the Berkeley Fair Elections Act, passed by voters in 2016.

MapLight has h
ad the opportunity to review proposed amendments to BERA prepared by the City Clerk’s office and City Attorney’s office. These amendments would make modest changes to streamline both the administration of the program and the candidate experience. We reviewed the latest version of these amendments that were provided to us May 8. We are in support of these amendments and urge the FCPC to adopt them at your next meeting.

We deeply appreciate the efforts of the Ci
ty Clerk’s office, City Attorney’s office, and the Commission in continuing to update the Fair Elections program so that it works well for candidates, the city, and the public.

Sincerely,
Daniel Newman
President
MapLight
Attachment 2

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1 ORDINANCE NO. X,XXX–N.S.

AMENDING BERKELEY MUNICIPAL CODE CHAPTER 2.12
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Section 2.12.095 is amended to read as follows:

Section 2. That Berkeley Municipal Code Section 2.12.168 is amended to read as follows:

Section 3. That Berkeley Municipal Code Section 2.12.255 is amended to read as follows:

2.12.255 Statement of organization--Committee required to file.

A. Subject to the exception in Section 2.12.255(B), every committee under Section

2.12.095 of this chapter shall file with the City Clerk a statement of organization, as defined in Government Code Section 84101 et. seq., or its successors, within ten days after it is formedqualifying as a committee pursuant to Section 2.12.095.

B. Every committee that formsqualifies during the period between the closing date of the last pre-election statement and the election shall file with the City Clerk, by hand delivery or by such means as the commission may prescribe, a statement of organization no later than the close of the next business day.

C. The date on which a committee formedqualified, and not the date on which the committee filed its statement of organization, shall determine the committee’s obligation to file the campaign statements and late contribution reports required by this chapter. All committees, whether formedqualified
before or after the date of the final pre-election
Attachment 3

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2 statement, but before the date of an election, are subject to late contribution reporting requirements.

Section 4. That Berkeley Municipal Code Section 2.12.260 is repealed.

2.12.260 Repealed.Statement of organization--Information required.

The statement of organization required by Section 2.12.255 shall include:

A. The name, street address and telephone number, if any, of the committee; B. The name, street address and telephone number of each candidate, if any, with which the committee is affiliated or connected;
C. The full name, street address and telephone number, if any, of the treasurer and other principal officer;
D. The full name and office sought by each candidate and the title and ballot number if any, of each measure, which the committee supports or opposes; E. A statement of whether the committee is independent or controlled, and if it is controlled, the name of each candidate or committee by which it is controlled or with which it acts jointly;
F. The disposition of surplus funds which will be made in the event of dissolution; G. The account number and name of the bank at which the campaign checking account, required by Section 2.12.250(A), is maintained; if the information required by this section is unavailable at the time of filing, the statement of organization, the filer shall promptly submit an amended statement after such information becomes available; H. The cash on hand at the time of filing the statement of organization; I. Such other information as shall be required by the rules or regulations of the commission consistent with the purposes and provisions of this chapter.

Section 5. That Berkeley Municipal Code Section 2.12.265 is repealed.

2.12.265 Repealed. Statement of organization--Change of information--Amendment required.

Whenever there is a change in any of the information contained in the statement of organization, an amendment shall be filed within ten days to reflect the change.

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3 Section 6. That Berkeley Municipal Code Section 2.12.505.H is amended to read as follows:

H.
1). Unspent campaign funds of any Participating Candidate who does not remain qualify as a candidate for the ballot at the election for which the funds were distributed, up to the total amount of funds that the participating candidate received as Fair Election Funds distributions in that election cycle and after accounting for campaign debts and expenditures, must be returned to the City no later than the date of the election for which the funds were distributed.within 30 (thirty) days of the determination on the qualification of the candidate. All funds returned under this paragraph must be accompanied by any required supporting documentation. In such cases, the participating candidate must return the unspent funds to the City, up to the total amount of funds that the participating candidate received as Fair Election Funds distributions, prior to refunding any contributions to individual contributors. 2). Any campaign funds that remain unspent by a Participating Candidate following the date of the election for which they were distributed, up to the total amount of funds that the Participating Candidate received as Fair Elections Funds distributions in that elections cycle and after accounting for campaign debts and expenditures, must be returned to the City, within sixty (60) days after the date of the election. All funds returned under this paragraph must be accompanied by any required supporting documentation.
3). All unspent campaign funds returned to the City shall be deposited in the Fair Elections Fund pursuant to the City Charter.
4). The City Clerk shall immediately refer to the Commission for enforcement any participating candidate who does not return unspent funds as required by this subsection.
5).After the deadline to return unspent funds in 2.12.505.H.2, a participating candidate may continue to raise funds in accordance with Article 8 of Chapter 2.12 to pay campaign-related debt from the most recent election. Any such contributions received shall not be eligible for matching funds.

Section 7. That Berkeley Municipal Code Section 2.12.505.J is added to read as follows:

J. Requests for matching funds may be submitted no later than 30 days after Election Day for the election at which the participating candidate qualified as a candidate.

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4 Section 8. That Berkeley Municipal Code Section 2.12.505.K is added to read as follows:

Section 9. That Berkeley Municipal Code Section 2.12.507 is added to read as follows:

Section 10. That Berkeley Municipal Code Section 2.12.510 is amended to read as follows:

2.12.510 Candidate statement notice.

Section 11. That Berkeley Municipal Code Section 2.12.545 is amended to read as follows:

2.12.545 Cost of living adjustments.

The Commission shall adjust the dollar amounts specified in Sections 2.12.167,

2.12.500.A.3, 2.12.500.A.6, 2.12.500.A.7, 2.12.500.A.8, 2.12.505.B and 2.12.530.B.3.b for cost of living changes pursuant to Section 2.12.075 in January of every odd-numbered year following Council implementation. Such adjustments shall be rounded to the nearest ten dollars ($10) with respect to Sections 2.12.167, 2.12.500.A.3 and 2.12.530.B.3.b and one thousand dollars ($1,000) with respect to Section 2.12.505.B.

Section 12. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

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NOTICE OF PUBLIC HEARING

BERKELEY CITY COUNCIL

AMENDMENTS TO THE BERKELEY ELECTION REFORM ACT
The public may participate in this hearing by remote video or in-person.

Notice is hereby given by the City Council of the City of Berkeley that a public hearing will be conducted by said city council of the City of Berkeley at which time and place all persons may attend and be heard upon the following:

The Fair Campaign Practices Commission of the City of Berkeley is proposing amendments to the Berkeley Election Reform Act related to: modify the forms required to open a campaign committee, change the deadline to qualify for the public financing program and make associated amendments, clarify the rules for public financing candidates that do not qualify for the ballot, add an automatic inflator for the amount a public financing candidate can give to their own committee, clarify post-election processes for public financing candidates, modify the threshold to create a campaign committee, and clarify the rules for returning certain types of contributions The hearing will be held on, June 13, 2023 at 6:00 p.m. in the School District Board Room, 1231 Addison Street, Berkeley, CA 94702.

For further information, please contact Samuel Harvey, Commission Secretary at (510) 981- 6998.

A copy of the staff report for this hearing will be available on the City’s website at www.berkeleyca.gov as of June 1, 2023. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.

Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed to
[email protected] in order to ensure
delivery to all Councilmembers and inclusion in the agenda packet.

If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at (510) 981-6900 or [email protected] for further information.

Published: June 2, 2023 pursuant to Berkeley Municipal Code Section 2.12.051 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on June 1, 2023.
__________________________________
Mark Numainville, City Clerk
Attachment 4

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Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

PUBLIC HEARING
June 13, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Sharon Friedrichsen, Budget Manager
Subject: FY 2024 Proposed Budget Update Public Hearing #2

RECOMMENDATION
Conduct Public Hearing #2 on the FY 2024 Proposed Budget Update and provide staff with comments and direction.

FISCAL IMPACTS OF RECOMMENDATION
On May 16, 2023, a proposed update to the FY 2024 Adopted Budget (Proposed FY 2024 Update) was presented to Budget & Finance Policy Committee and to the City Council. The City Council conducted the first public hearing on the Proposed FY 2024 Update that same day. Tonight, the City Council will conduct the second public hearing on the Proposed FY 2024 Update.

CURRENT SITUATION AND ITS EFFECTS
The Proposed FY 2024 Update will include updated information on adopted FY 2024 revenues and expenditures by funding source; proposed expenditures by City department; proposed staffing levels; and the proposed capital improvement program.

Following a brief presentation on the Proposed FY 2024 Update, staff requests that the City Council conduct the second public hearing on the budget. Subsequently, the Budget and Finance Policy Committee will continue discussions regarding the proposed budget update prior to adoption by the City Council on June 27, 2023.

The Proposed FY 2024 Update is a Strategic Plan Priority Project, advancing our goal to provide an efficient and financially-health City government.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Actions included in the budget will be developed and implemented in a manner that is consistent with the City’s environmental sustainability goals and requirements.

RATIONALE FOR RECOMMENDATION
This recommendation conducts the second public hearing on the Fiscal Years 2024 Proposed Budget Update and provide staff with comments and direction from the City Council prior to the budget adoption on June 27, 2023.

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FY 2024 Proposed Budget Update Public Hearing #2 PUBLIC HEARING June 13, 2023

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ALTERNATIVE ACTIONS CONSIDERED
No alternative actions have been considered.

CONTACT PERSON
Sharon Friedrichsen, Budget Manager, City Manager’s Office, 981-7000 Attachments:
1: Public Hearing Notice

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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

NOTICE OF PUBLIC HEARING

BERKELEY CITY COUNCIL
FY 2024 PROPOSED BUDGET UPDATE PUBLIC HEARING #2
The public may participate in this hearing by remote video or in-person.

The City Manager’s Office is proposing a public hearing for the Fiscal Year 2024 Proposed Budget Update, which is being presented to the City Council.

The hearing will be held on Tuesday, June 13, 2023 at 6:00 p.m. in the School District Board Room, 1231 Addison Street, Berkeley CA 94702.

A copy of the agenda material for this hearing will be available on the City’s website at https://berkeleyca.gov/ as of June 1, 2023. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.

For further information, please contact Sharon Friedrichsen at (510) 981-7000.

Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed to
[email protected] in order to
ensure delivery to all Councilmembers and inclusion in the agenda packet.

Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the City Clerk. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6900 or [email protected] for further information.

Posted: June 1, 2023
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on June 1, 2023.
__________________________________
Mark Numainville, City Clerk

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REVISED

AGENDA MATERIAL
Meeting Date: June 13, 2023
Item Description: Surveillance Ordinance items related to Fixed Surveillance Cameras and Unmanned Aerial Systems (UAS)
Submitted by: Dee Williams-Ridley, City Manager
Chief Jennifer Louis, Police Department
These updated policies reflect many of the edits proposed by Councilmember Harrison in her Supp 2 as well as the discussion of Council on May 23, 2023 that the BPD policies related to Fixed Surveillance Cameras be “decoupled” from an overarching City policy covering cameras that may regularly capture public facing City facilities and employees engaged in their work. These policies are intended to cover the Berkeley Police Department uses allowing work to continue forward with the Council approved fixed cameras at intersections as well as continue to use the cameras at the Marina and San Pablo Park.

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Berkeley Police Department
Law Enforcement Services Manual
REVISED-351 External Fixed Video Surveillance Cameras (Final).docx 1 Policy
351
External Fixed Video Surveillance Cameras
351.1 PURPOSE AND SCOPE
This policy provides guidance for the use of City of Berkeley external fixed video surveillance cameras by the Berkeley Police Department.

This policy only applies to fixed, overt, marked external video surveillance systems utilized by the Department. It does not apply to mobile audio/video systems, covert audio/video systems or any other image-capturing devices used by the Department. Department Personnel shall adhere to requirements for External Fixed Video Surveillance Cameras covered in this policy as well as the corresponding Surveillance Use Policy – 1304.
351.2 POLICY
The Berkeley Police Department utilizes a video surveillance system to enhance its anti-crime strategy, to effectively allocate and deploy personnel, and to enhance safety and security in public areas and City property. As specified by this policy, Ccameras may be placed in strategic locations throughout the City to detect record and deter crime, to help the City safeguard against potential threats to the public, to help manage emergency response situations during natural and human- made disasters , to assist City officials in providing services to the community, among other uses specified in Section 351.3.1.

Video surveillance in public areas will be conducted in a legal and ethical manner while recognizing and protecting constitutional standards of privacy.
351.3 OPERATIONAL GUIDELINES
Only City Council-approved video surveillance equipment shall be utilized. BPD Members authorized to review video surveillance should only record and monitor public areas and public activities where no reasonable expectation of privacy exists and pursuant to Section 351.3.1. The City Manager shall obtain Council approval for any proposed additional locations for the use of video surveillance technology.
351.3.1 PLACEMENT , REVIEW AND MONITORING
Camera placement will be guided by this policy and the underlying purpose or strategy associated with the overall video surveillance plan. As appropriate, the Chief of Police should confer with other affected City departments when evaluating camera placement. Environmental factors, including lighting, location of buildings, presence of vegetation or other obstructions, should also be evaluated when determining placement.

Camera placement includes, but is not limited to: existing cameras such as those located at San Pablo Park, the Berkeley Marina, and cameras placed in Council identified and approved intersections throughout the City, and potential future camera locations as approved by City Council.

Commented [LJ1]: Supp 2
Commented [DMR2R2]: “Supp 2” reference in
comments indicates Department accepted proposed
edits.

Commented [LJ3]: Supp 2
Commented [LJ4]: Supp 2
Commented [LJ5]: Supp 2
Commented [LJ6]: Supp 2
Commented [LJ7]: Supp 2
Commented [LJ8]: Supp 2
Commented [LJ9]: Supp 2
Commented [LJ10]: Supp 2
Commented [LJ11]: Noted from CC 5/23/23

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2 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx Current City Council approved locations:
 6th Street at University Avenue
 San Pablo Avenue at University Avenue
 7th Street at Dwight Way
 San Pablo Avenue at Dwight Way
 7th Street at Ashby Avenue
 San Pablo Avenue at Ashby Avenue
 Sacramento Street at Ashby Avenue
 College Avenue at Ashby Avenue
 Claremont Avenue at Ashby Avenue
 62nd Street at King Street
The cameras shall only record video images and not sound. Recorded images may be used for a variety of purposes, including criminal or civil administrative investigations. The video surveillance system may shall only be utilized be useful for the following purposes:
(a) To prevent, deter and identify criminal activity.
(b) To address identified areas of criminal activity.
(c) To respond to critical incidents and natural disasters. (d) To assist in identifying, apprehending and prosecuting offenders. (e) To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
(f) To augment resources in a cost-effective manner.
(g) To monitor pedestrian and vehicle traffic activity in order to assist withaid in traffic related investigations.
(h) To document employee, employer, and/or customer conduct during interactions to safeguard the employee, employer, and customer from misconduct The cameras shall only record video images and not sound. Recorded images may be used and video surveillance may be monitored for the following purposes:
(a) To support specific and active criminal or administrative investigations. (a)(b) To respond and review critical incidents or natural disasters.

Unauthorized recording, viewing, reproduction, dissemination or retention is prohibited.

Commented [LJA12]: Reflects council discussion from
May 23rd meeting to set clear purpose for allowable
BPD uses. Uses language proposed in Supp 2

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3 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx 351.3.2 FIXED CAMERA MARKINGS
All public areas monitored by video surveillance equipment shall be marked in a conspicuous manner with unobstructed signs to inform the public that the area is under police surveillance. 351.3.3 INTEGRATION WITH OTHER TECHNOLOGY
The Department is prohibited from integrating or accessing system capabilities of the video surveillance system with other systems, such as gunshot detection, automated license plate recognition, facial recognition and other video-based analytical systems. 351.4 VIDEO SUPERVISION
Access to video surveillance cameras data shall be limited to Berkeley Police Department (BPD) personnel utilizing the camera database for uses described above, with technical assistance from Public Works personnel. Information may be shared in accordance with 351.6 or 1304.9 below.

BPD Mmembers seeking access to the camera system shall seek the approval from the Investigations Division Captain, or their designee.

Supervisors should monitor camera access and usage to ensure BPD members are complying within this policy, other applicable department policy and applicable laws. Supervisors should ensure such use and access is appropriately documented. 351.4.1 VIDEO LOG
No one without authorization will be allowed to login and view the recordings. Access to the data must be obtained through the Public Works Department. All system access including system log- in, access duration, and data access points is accessible and reportable by the Public Works Department’s authorized administrator. Those who are authorized and login should automatically trigger the audit trail function to ensure compliance with the guidelines and policy. This is further outlined in 1304.4 of the Surveillance Use Policy.
351.4.2 PROHIBITED ACTIVITY
Video surveillance systems will not intentionally be used to invade the privacy of individuals or observe areas where a reasonable expectation of privacy exists.

Video surveillance systems shall not be used in an unequal or discriminatory manner and shall not target protected individual characteristics including, but not limited to race, ethnicity, national origin, religion, disability, gender or sexual orientation.

Video surveillance equipment shall not be used to harass, intimidate or discriminate against any individual or group.

Video surveillance systems and recordings are subject to the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.
351.5 STORAGE AND RETENTION OF MEDIA
The cameras should record minimally for one year as guided by Government Code 34090.

Recordings of incidents involving use of force by a police officer, detentions, arrests, or recordings relevant to a formal or informal complaint shall be retained for a minimum of two years and one Commented [LJ13]: Supp 2
Commented [LJ14]: Supp 2
Commented [DMR15]: Retention period remained
unchanged for further discussion and decision by
Council on 6/13/23.

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4 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx month. Recordings relating to court cases and personnel complaints that are being adjudicated will be manually deleted at the same time other evidence associated with the case is purged in line with the Department’s evidence retention policy. Any recordings related to administrative or civil proceedings pursuant to this section shall be maintained until such matter is fully adjudicated, at which time it shall be deleted in line with the Department’s evidence retention policy, and any applicable orders from the court.
.

Any recordings needed as evidence in a criminal or civil administrative proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures. 351.5.1 EVIDENTIARY INTEGRITY
All downloaded and retained media shall be treated in the same manner as other evidence. Media shall be accessed, maintained, stored and retrieved in a manner that ensures its integrity as evidence, including strict adherence to chain of custody requirements. Electronic trails, including encryption, digital masking of innocent or uninvolved individuals to preserve anonymity, authenticity certificates and date and time stamping, shall be used as available and appropriate to preserve individual rights and to ensure the authenticity and maintenance of a secure evidentiary chain of custody.
351.6 RELEASE OF VIDEO IMAGES
Data collected and used in a police report shall be made available to the public in accordance with department policy and applicable state or federal law, also referenced in Policy 1304.8.

Requests for recorded video images from the public or the media shall be processed in the same manner as requests for department public records pursuant to Policy 804.

Requests for recorded images video from other law enforcement agencies shall be referred to the Investigations Division Captain, or their designee for release in accordance with this policy. and a specific and legitimate law enforcement and active criminal investigation purpose.

Recorded video images that are the subject of a court order or subpoena shall be processed in accordance with the established department subpoena process. 351.7 VIDEO SURVEILLANCE AUDIT
The video surveillance software generates a site log each time the system is accessed. The site log is broken down by server, device, user or general access. The site log is kept on the server for two years and is exportable for reporting. System audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial.

BPD will enforce against prohibited uses of the cameras pursuant to Policy 1010, Personnel Complaints or other applicable law or policy.

The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected.

After review by the Chief of Police, the memorandum and any associated documentation shall be placed into the annual report filed with the City Council pursuant to BMC Section 2.99.020 2. d., Commented [LJ16]: Supp 2
Commented [LJ17]: Supp 2
Commented [LJ18]: Supp 2
Commented [DMR19]: Already defined in policy.

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5 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx published on the City of Berkeley website in an appropriate location, and retained within the Professional Standards Bureau.
351.8 TRAINING
All department members authorized to operate or access video surveillance systems shall receive appropriate training. Training should include guidance on the use of cameras, associated software, and review of relevant policies and procedures, including this policy. Training should also address state and federal law related to the use of video surveillance equipment and privacy.

All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance. 351.9 MAINTENANCE
It shall be the responsibilityies of the Public Works Department to facilitate and coordinate any updates and required maintenance.

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***DRAFT*** Surveillance Use Policy-External Fixed
Video Surveillance Cameras - 1
Copyright Lexipol, LLC 2022/10/25, All Rights Reserved.

Published with permission by Berkeley Police Department

Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-External Fixed Video
Surveillance Cameras
1304.1 PURPOSE
This policy provides guidance for the use of City of Berkeley external fixed video surveillance cameras by the Berkeley Police Department (BPD). This policy only applies to fixed, overt, marked external video surveillance systems utilized by the Department. It does not apply to mobile audio/video systems, covert audio/video systems or any other image-capturing devices used by the Department. Department Personnel shall adhere to requirements for External Fixed Video Surveillance Cameras covered in this policy as well as the corresponding Use Policy – 351.

This Surveillance Use Policy is legally-enforceable pursuant to BMC 2.99. 1304.2 AUTHORIZED USE
Only BPD members who receive training on this policy, who are then granted access by an administrator may access the data from the video surveillance cameras. This data may only be accessed to further a legitimate law enforcement purpose. Members must follow the necessary logging mechanisms, such as case number and case type when querying the database.

The cameras shall only record video images and not sound. Recorded images may be used and video surveillance may be monitored for the following purposes:
(a) To support specific and active criminal or administrative investigations. (b) To respond and review critical incidents or natural disasters.

Recorded images may be used for a variety of purposes, including criminal or civil investigations. The video surveillance system may be useful for the following purposes:
(a) To prevent, deter and identify criminal activity.
(b) To address identified areas of criminal activity.
(c) To respond to critical incidents.
(d) To assist in identifying, apprehending and prosecuting offenders. (e) To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
(f) To augment resources in a cost-effective manner.
(g) To monitor pedestrian and vehicle traffic activity in order to assist with traffic related investigations.
(h) To document employee, employer, and/or customer conduct during interactions to safeguard the employee, employer, and customer from misconduct The following are prohibited uses of the video surveillance system:
(a) Unauthorized recording, viewing, reproduction, dissemination or retention is prohibited.
(b) Video surveillance systems will not intentionally be used to invade the privacy of individuals or observe areas where a reasonable expectation of privacy exists.

Policy
1304
Commented [LJA1]: Reflects council discussion from
May 23rd meeting to set clear purpose for allowable
BPD uses. Uses language proposed in Supp 2

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***DRAFT*** Surveillance Use Policy-External Fixed
Video Surveillance Cameras - 2
Copyright Lexipol, LLC 2022/10/25, All Rights Reserved.

Published with permission by Berkeley Police Department

(c) Video surveillance systems shall not be used in an unequal or discriminatory manner and shall not target protected individual characteristics including, but not limited to race, ethnicity, national origin, religion, disability, gender or sexual orientation. (d) Video surveillance equipment shall not be used to harass, intimidate or discriminate against any individual or group.
(e) Video surveillance systems and recordings are subject to the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.
1304.3 DATA COLLECTION
The cameras will film and store video on City of Berkeley encrypted servers. License plate and facial recognition data hardware is not installed on the cameras. Audio is a standard feature of the camera, but is deactivated by the system administrator. The cameras and storage devices shall be wholly owned and operated/maintained by the City of Berkeley. 1304.4 DATA ACCESS
Access to video surveillance cameras data shall be limited to Berkeley Police Department personnel utilizing the camera database for uses described above, with technical assistance from Public Works personnel. Information may be shared in accordance with 1304.9 below.

BPD mMembers seeking access to the video surveillance system shall seek the approval from the Investigations Division Captain, or their designee.

Supervisors should monitor camera access and usage to ensure BPD members are complying with this policy, other applicable department policy and applicable laws.

Supervisors should ensure such use and access is appropriately documented. 1304.5 DATA PROTECTION
All data transferred from the cameras and the servers shall be encrypted. Access to the data must be obtained through the Public Works Department. All system access including system log-in, access duration, and data access points is accessible and reportable by the Public Works Department’s authorized administrator. All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance.
1304.6 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. Provisions of this policy, including 1304.4 Data Access, 1304.5 Data Protection, 1304.7 Data Retention, 1304 .8 Public Access and 1304.9 Third Party Data Sharing serve to protect against any unauthorized use of video surveillance camera data. License plate and facial recognition data hardware is not installed on the cameras. Audio is a standard feature of the camera, but is deactivated by the system administrator. These procedures ensure the data is not used in a way that would violate or infringe upon anyone’s civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups. 1304.7 DATA RETENTION
The video surveillance camera system should record minimally for one year as guided by Commented [LJ2]: Supp 2

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***DRAFT*** Surveillance Use Policy-External Fixed
Video Surveillance Cameras - 3
Copyright Lexipol, LLC 2022/10/25, All Rights Reserved.

Published with permission by Berkeley Police Department

Government Code 34090. Recordings of incidents involving use of force by a police officer, detentions, arrests, or recordings relevant to a formal or informal complaint shall be retained for a minimum of two years and one month. Recordings relating to court cases and personnel complaints that are being adjudicated will be manually deleted at the same time other evidence associated with the case is purged in line with the Department’s evidence retention policy. Any recordings related to administrative or civil proceedings pursuant to this section shall be maintained until such matter is fully adjudicated, at which time it shall be deleted in line with the Department’s evidence retention policy, and any applicable orders from the court. All data will automatically delete after the aforementioned retention period by the System Administrator from Public Works.

Any recordings needed as evidence in a criminal or administrativecivil proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures.

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***DRAFT*** Surveillance Use Policy-External Fixed
Video Surveillance Cameras - 4
Copyright Lexipol, LLC 2022/10/25, All Rights Reserved.

Published with permission by Berkeley Police Department

Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-External Fixed Video Surveillance Cameras 1304.8 PUBLIC ACCESS
Data collected and used in a police report shall be made available to the public in accordance with department policy and applicable state or federal law.

Requests for recorded video images from the public or the media shall be processed in the same manner as requests for department public records pursuant to Policy 804.

Recorded video images that are the subject of a court order or subpoena shall be processed in accordance with the established department subpoena process. 1304.9 THIRD-PARTY DATA-SHARING
Requests for recorded videoimages from other law enforcement agencies shall be referred to the Investigations Division Captain, or their designee for release in accordance with this policyspecific and legitimate law enforcement purposes.

Data collected from the video surveillance system may be shared with the following:
(a) The District Attorney's Office for use as evidence to aid in prosecution, in accordance with laws governing evidence;
(b) Other law enforcement personnel as part of an active criminal investigation; (c) Recorded video images that are the subject of a court order or subpoena shall be processed in accordance with the established department subpoena process 1304.10 TRAINING
All department members authorized to operate or access video surveillance systems shall receive appropriate training. Training should include guidance on the use of cameras, associated software, and review of relevant policies and procedures, including this policy.

Training should also address state and federal law related to the use of video surveillance equipment and privacy.

All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance. 1304.11 AUDITING AND OVERSIGHT
The video surveillance software generates a site log each time the system is accessed. The site log is broken down by server, device, user or general access. The site log is kept on the server for two years and is exportable for reporting. Video surveillance system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial.

BPD will enforce against prohibited uses of this policy pursuant to Policy 1010, Personnel Complaints or other applicable law or policy.

The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected. After review by the Chief of Police, the memorandum and any associated documentation shall be placed into the annual report filed with the City Council pursuant to BMC Section 2.99.020 2. d., published on the City of Berkeley website in an appropriate location, and retained within the Professional Standards Bureau. 1304.12 MAINTENANCE

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***DRAFT*** Surveillance Use Policy-External Fixed
Video Surveillance Cameras - 5
Copyright Lexipol, LLC 2022/10/25, All Rights Reserved.

Published with permission by Berkeley Police Department

It shall be the responsibilityies of the Public Works Department to facilitate and coordinate any updates and required maintenance.

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT Surveillance Camera Acquisition Report 1

SURVEILLANCE CAMERAS
A. DESCRIPTION
The Avigilon camera system consists of three main components: The camera, the server, and a remote information management system referred to as the Avigilon Control Center Client application (ACC).

The first component, the Avigilon camera, is a device that incorporates a video recording from an image. The cameras are affixed to City of Berkeley-owned infrastructure including utility poles on City streets and parks. The cameras provide protection to indoor and outdoor spaces with high-resolution images of up to 5 MP, a wide field of view, and efficient bandwidth management in a compact design without compromising building aesthetics. Although license plate and facial recognition hardware is available, neither was purchased or installed. Without the hardware, these features cannot be activated. Audio is a standard feature of the camera, but will remain deactivated by the authorized administrators of the system.

The second component of the system is the server. Once the Avigilon camera captures the imagery, a local device called a server, functions as a repository for the data. Servers are physically secured on City property and video recordings are protected within the City’s network. Servers are designed to store recorded events in real time for secure retrieval and analysis. Recorded videos are transferred from the server’s storage into an information management system, Avigilon Control Center (ACC) application. 1. 1 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=200320040AB839

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT Surveillance Camera Acquisition Report 2
The third component is the Avigilon Control Center Client application (ACC) which streamlines data management and allows users to access videos on one secure platform. The ACC software provides various levels of analytics to sort stored videos faster and is a standard feature. These include pixel motion detection of vehicles and people. Vehicular characteristics are searchable by vehicle type and color. Personal characteristics are searchable by gender (gender is a binary search, female of male), hair color, age, and upper and lower body clothing color. Authorized users of the system can only access data stored on a server through the ACC application. The ACC application is located on the server and accessed solely through the City’s secured intranet by protected login and password. The application does not allow the authorized administrator or system users to alter, manipulate, or edit any of the footage recorded by the server.

B. PURPOSE
The cameras shall only record video images and not sound. Recorded images may be used and video surveillance may be monitored for the following purposes:
(a) To support specific and active criminal or administrative investigations. (b) To respond and review critical incidents or natural disasters.

Surveillance cameras will be utilized for the following business purposes:
i. To prevent, deter and identify criminal activity.
ii. To address identified areas of criminal activity.
iii. To respond to critical incidents.
iv. To assist in identifying, apprehending and prosecuting offenders. v. To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
vi. To augment resources in a cost-effective manner.
vii. To monitor pedestrian and vehicle traffic activity in order to assist with traffic related investigations.
viii. To document employee, employer, and/or customer conduct during interactions to safeguard the employee, employer, and customer from misconduct Commented [LJA1]: Reflects council discussion from May 23rd meeting to set clear purpose for allowable BPD uses.

Uses language proposed in Supp 2

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT Surveillance Camera Acquisition Report 3
C. LOCATION
Surveillance cameras encompassed by this report, are located at, or will be installed at, the following locations.

Future Projects:
 6th Street at University Avenue
 San Pablo Avenue at University Avenue
 7th Street at Dwight Way
 San Pablo Avenue at Dwight Way
 7th Street at Ashby Avenue
 San Pablo Avenue at Ashby Avenue
 Sacramento Street at Ashby Avenue
 College Avenue at Ashby Avenue
 Claremont Avenue at Ashby Avenue
 62nd Street at King Street
Completed Projects:
 San Pablo Park
 City of Berkeley Marina
 Transfer Station
D. IMPACT
The primary intent of these cameras is to deter and address crime in the City of Berkeley. The Public Works Department will work to ensure that the video recordings are secured and only accessible to authorized personnel. The right to maintain someone's anonymity versus the need to collect information to maintain public safety is of paramount concern. The Department recognizes that all people have a right to privacy and is committed to protecting and safeguarding civil rights by adhering to the strictest requirements concerning the release of video recordings. There should not be any impact on anyone's civil liberties or civil rights. The camera system lacks the hardware to conduct license plate reader or facial recognition technology. Audio is a standard feature of the cameras, but will remain deactivated by the authorized

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT Surveillance Camera Acquisition Report 4
administrators of the system. Staff is explicitly prohibited from using any facial recognition technology as outlined in BMC 2.99.

The Public Works Department will ensure responsible data management, transparency, and accountability including the posting of video surveillance notices.

E. MITIGATION
In order to minimize violations of privacy, data shall be maintained in a secure, non-public accessible location, such locations require specialized system access including a dedicated password and log in. Data will be obtained or released in accordance with the use policy. Data will not be used to unlawfully discriminate against people based on race, ethnicity, political opinions, religious or philosophical beliefs, trade union membership, gender identity, disability status, sexual orientation or activity, or genetic and/or biometric data. Additionally, the Department will not use the camera surveillance system to scan footage and identify individuals based on any of the categories listed in the preceding sentence.

Employees are prohibited from retaining, duplicating, or distributing video recordings except for departmental business purposes in accordance with the use policy.

F. DATA TYPES AND SOURCES
The surveillance camera system's use is limited to capturing non-audio, video recordings on affixed City buildings, including utility poles on streets and within park boundaries. The Camera Surveillance system collects video recordings in high-resolution imagery that is stored securely on a local server and accessible by authorized users on the ACC application. As video images are recorded, the ACC application automatically stamps the video with the current date/time and the camera's identity.

G. DATA SECURITY
External users will not have access to the ACC application. The authorized administrator and designated staff will have access to video recordings. To gain system access, staff must obtain approval from system management. Authorized users will access the ACC application via a single sign-on and password administered by Information Technology. All system access including system log-in, access duration, and data access points is accessible and reportable by the Public Works authorized administrator. The application prohibits the authorized administrator and users from altering, manipulating, tampering, or editing video recordings.

The Public Works Director or his/her designee shall appoint a member of the department as the authorized administrator to coordinate the use and maintenance of the Surveillance Camera system and the storage of recordings, including:

1. Establishing a system for downloading, storing, and securing of recordings.

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT Surveillance Camera Acquisition Report 5

2. Designating persons responsible for downloading recorded data.

3. Establishing a maintenance system to ensure the working order of surveillance cameras.

4. Monitoring the system to prevent tampering, deleting, and copying recordings.

5. Working in alignment with the State of California record retention policy, AB 839 to ensure an appropriate retention schedule is being applied to recordings and associated documentation.

6. Maintaining an audit trail record for all access to video recording files, wherein access information for each file is logged using a secure log-in system. The ACC application associates an audit trail record with each user access information, thereby logging the date, time, user name, and activity occurring during each video recording file access.

H. FISCAL COST
Costs for future projects listed in Section C of this report are unknown at this time. Future costs will depend on additional maintenance, equipment, and parts. Ongoing costs include associated staff time relative to the system administrator’s role of administering and maintaining the surveillance camera program. All cameras are purchased and wholly owned and operated by City of Berkeley.

Initial Purchase Costs:

San Pablo Park: $64,829.46 – 1 server and 21 camera views Zero Waste Transfer Station – Weigh Station: $15,962.35 – 1 server and 10 camera views Marina: $106,620.14 – 2 servers and 45 camera views
Ongoing Costs:

Personnel, maintenance, and other ongoing costs, including compliance and other reporting and oversight requirements - $13,443.20 per year.

I. THIRD PARTY DEPENDENCE AND ACCESS
All Camera Surveillance data is accessed by a secure network login and password and stored on servers maintained by the Department of Information Technology. There is no third-party dependence or external access to information other than the ACC is a proprietary technology which requires all the components to be Avigilon.

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT Surveillance Camera Acquisition Report 6
J. ALTERNATIVES
The City can decide to rely on traditional policing techniques as a method for addressing crime such as deploying sworn officers to patrol City buildings and parks.

There is a broad consensus – among the community– that surveillance cameras can be an important tool for deterring criminal activities.

K. EXPERIENCE OF OTHER ENTITIES
Neighboring cities including San Francisco, Oakland, and San Jose have adopted the use of Surveillance Cameras as a tool for reducing crime on city streets and parks. Many cities have developed their own usage policies which may include standards for use, data retention standards, and system controls.

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Kate Harrison
Councilmember District 4
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7140 TDD: 510.981.6903 E-Mail: [email protected]

SUPPLEMENTAL 3

AGENDA MATERIAL

Meeting Date: May 23, 202 3
Item Number: 46
Item Description: Surveillance Ordinance items related to Fixed Surveillance Cameras and Unmanned Aerial Systems (UAS)
Supplemental/Revision Submitted By: Councilmember Harrison “Good of the City” Analysis:

The analysis below must demonstrate how accepting this supplement/revision is for the “good of the City” and outweighs the lack of time for citizen review or evaluation by the Council.

Submitting the Police Accountability Board’s March 2023 recommendation letters (without attachments) regarding Fixed Surveillance Cameras and Unmanned Aerial Systems.

This supplemental is for the “Good of the City” because under the Surveillance Ordinance and Charter the PAB is charged with providing recommendations on proposed policies.

Consideration of supplemental or revised agenda material is subject to approval by a two-thirds vote of the City Council. (BMC 2.06.070)

A minimum of 42 copies must be submitted to the City Clerk for distribution at the Council meeting. This completed cover page must accompany every copy.

Copies of the supplemental/revised agenda material may be delivered to the City Clerk Department by 12:00 p.m. the day of the meeting. Copies that are ready after 12:00 p.m. must be delivered directly to the City Clerk at Council Chambers prior to the start of the meeting.

Supplements or Revisions submitted pursuant to BMC § 2.06.070 may only be revisions of the original report included in the Agenda Packet.

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Friday, March 10, 2023

Via Electronic Transmittal
Interim Chief Jennifer Louis
Berkeley Police Department
2100 Martin Luther King Jr. Way
Berkeley, CA 94704
Re: Fixed Video Surveillance Cameras

Dear Interim Chief Jennifer Louis:

The Police Accountability Board (PAB) would like to provide its recommendations on the proposed policies1 regarding fixed video surveillance cameras being considered by the Berkeley Police Department. As mandated by Berkeley Municipal Code Section 2.99 "Acquisition and Use of Surveillance Technology," specifically section 2.99.030.2, the PAB conducted a review of the proposed policies and voted to provide the attached report at their March 8th, 2023 special meeting.

The PAB brings to your attention several points. First, these policies state that the surveillance cameras are to be used for “a variety of purpos es”, which appears to be inconsistent with the Council’s intent to use the cameras “solely for the purpose of solving criminal investigations”, as passed in their budget referral and adoption in 2021. Second, because the two use policies provided to the PA B appear to be duplicative, the PAB recommends that to avoid confusion the Department make it clear what the intended purpose of each policy is. Thirdly, several sections of these policies are ambiguous and require further clarification. Lastly, the data retention policies should be further elaborated

1 BPD Draft Policy 351 “External Fixed Video Surveillance Cameras” & Policy 1304 “Surveillance Use Policy – External Fixed Video Surveillance Cameras”

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to provide additional clarity on the proposed uses of the data . For more information, please refer to the attached report.

The PAB understands the importance of maintain ing public safety and does not wish to limit the effectiveness of the BPD in ensuring the safety of the community. We strive to balance the needs of public safety with the protection of civil liberties and privacy. We hope that by addressing the aforementioned points, we can work together to maintain a safe and secure environment for all members of the Berkeley community while respecting their rights and privacy.

Sincerely,
Police Accountability Board

cc: Honorable Mayor & Members of the Berkeley City Council City Manager

Attachments: PAB POLICY REVIEW REPORT
BPD Draft Policies 351 & 1304:

External Fixed Video Surveillance Cameras & Surveillance Use Policy - External Fixed Video Surveillance Cameras

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Police Accountability Board
&
Office of the Director of
Police Accountability

POLICY REVIEW REPORT
BPD Draft Policies 351 & 1304:

External Fixed Video Surveillance Cameras & Surveillance Use Policy - External Fixed Video Surveillance Cameras

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Mayor
Jesse Arreguin

City Council
Rashi Kesarwani, District 1
Terry Taplin, District 2
Ben Bartlett District 3
Kate Harrison, District 4
Sophie Hahn, District 5
Susan Wengraf, District 6
Rigel Robinson, District 7
Mark Humber, District 8

City Manager Berkeley Police Department
Dee Williams-Ridley

Interim Chief Jennifer Louis
Police Accountability Board
John Moore, Chair
Regina Harris, Vice-Chair
Kitty Calavita
Juliet Leftwich
Deborah Levine
Cheryl Owens
Ismail Ramsey

Office of the Director of Police Accountability
Hansel Aguilar, Director of Police Accountability
Jose Murillo, Policy Analyst

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1 Contents
Summary Review: .................................................................................................................................... 1 Background: .............................................................................................................................................. 1 Recommendation: .................................................................................................................................... 3 Reasoning: ................................................................................................................................................. 3 The misalignment between the proposed policies and the City Council’s intended Direction ... 4 The adoption of two similar policies could cause implementation confusion. ............................... 5 Other Notes: .............................................................................................................................................. 5 Doubts on the effectiveness of the proposed surveillance camera installation. ........................... 5 Doubts on the interpretation of Government Code 34090 ............................................................... 6 Works Cited ............................................................................................................................................... 8 Attachment List ........................................................................................................................................ 9

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1 Police Accountability Board
&
Office of the Director of
Police Accountability

POLICY REVIEW REPORT
BPD Draft Policies 351 & Policy 1304:
“External Fixed Video Surveillance Cameras” & “Surveillance Use Policy – External Fixed Video Surveillance Cameras”
Date of Report: March 10, 2023

Summary Review:

The Police Accountability Board (PAB) has reviewed these policies and notes several primary points. First, these policies state that the surveillance cameras are to be used for “a variety of purposes”, which appears to be inconsistent with the Council’s intent to use the cameras “solely for the purpose of solving criminal investigations”, as passed in their budget referral and adoption in 2021. Second, because the two use policies provided to the PAB appear to be duplicative, the PAB recommends that to avoid confusion the Department make it clear what the intended purpose of each policy is.

Background:

On February 8th, 2023, in compliance with the BMC Section 2.99.030.2, Interim Chief Louis presented to the Police Accountability Board (PAB) a triad of documents for their review. A Surveillance Technology Acquisition Report, which was crafted by the Publi c

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2 Works Department, was accompanied by two proposed policies, Policy 351 entitled "External Fixed Video Surveillance Cameras," and Policy 1304 entitled "Surveillance Use Policy - External Fixed Video Surveillance Cameras," both of which were drafted by the Berkeley Police Department (BPD). Please refer to Attachment 1, which includes a copy of the Surveillance Technology Acquisition Report, as well as the proposed policies.

The acquisition report and proposed policies state that the cameras will serve sev eral business purposes that will include, but not be limited to: the prevention, deterrence, and identification of criminal activity ; the addressing of areas of criminal activity ; and the response to critical incidents. Additionally, the cameras will assis t in identifying, apprehending, and prosecuting offenders, documenting officer and offender conduct during interactions to safeguard the rights of the public and officers, cost-effectively augmenting resources , monitoring pedestrian and vehicle traffic activity to aid traffic - related investigations, and documenting employee, employer, and/or customer conduct during interactions to protect them from any potential misconduct. See Attachment 1.

However, these prop osed uses of surveillance cameras —which are not inclusive of all possible uses —may be inconsistent with the implied purpose seen throughout the procedural history of these policies.

On October 12, 2021, Councilmember Taplin and Councilmember Kesarwani pre sented a budget referral to the City Council for "Security Cameras in the Public Right of Way at Intersections Experiencing Increased Violent Crime, and Environmental Safety Assessment of High Crime Areas." The presented recommendation aimed to deter gun violence and obtain evidence to solve criminal investigations, with an understanding that the cameras would not be used for any type of surveillance purposes. The recommendation was approved with revisions that included referring to the City Manager to develop a use policy for the security cameras, based on active investigations only and including a data retention schedule. Staff was also required to provide the council with an off-agenda memo commemorating the use policy, and the locations of the cameras would be based on calls -for-service data, with a list of locations brought to the council and referred to the AA01 budget process. See attachment 2 for a copy of the consent item 20

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3 with Council actions from the October 12, 2021 , City Council regular meeting and the relevant supplemental material.

On December 1 4, 2021, the City Council voted to adopt the budget recommendations that included the proposal for security cameras in certain locations. However, funding for the cameras was made conditional on the dev elopment and implementation of a Use Policy before their deployment and siting in District 1, District 2, and District 8 locations as proposed by the Police Department and at 62nd & King (District 3). The policy was set to be adopted administratively and presented to the City Council as an off-agenda memo.

See attachment 3 for a copy of the action item with Council actions from the December 14, 2021, City Council regular meeting. City Manager Dee Williams-Ridley presented an off-agenda memorandum to Council on January 25, 2022 , providing an early version of Policy 351. See attachment 4 for a copy of that memorandum.

The PAB has thoroughly examined all pertinent materials, and procedural history relating to the development of these policies and co nducted independent research to present recommendations to the City Council and City Manager about the proposed policies of the Berkeley Police Department (BPD).

Recommendation:

The PAB recommends that the BPD revise the proposed policies to align with the initial scope of the budget referral, as well as the conditions placed by the City Council when the budget referral was approved. This will involve implementing changes such as clarifying language and limiting use to the intended purpose. In addition to these changes, the PAB recommends that to avoid confusion the Department make it clear what the intended purpose of each policy is and clearly define which policy is intended for internal training purposes and which is intended to ensure compliance with BMC 2.99.

Reasoning:

In developing its recommendation, the PAB considered the following:

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4 The misalignment between the proposed policies and the City Council’s intended Direction
Upon careful analysis of the proposed policies, the PAB determined that the language included within these policies is not reflective of the Council’s original inte nt when approving the budget for these cameras. Policy 351 and Policy 1304 state that “recorded images may be used for a variety of purposes, including criminal or civil investigations.” Among the potential uses, the polic ies note that the video images may be used “to document officer and offender conduct during interactions to safeguard the rights of the public and officers,” “to augment resources in a cost -effective manner,” “to monitor pedestrian and vehicle traffic related to investigations,” and “to do cument employee, employer, and/or customer conduct during interactions to safeguard the employee, employer, and customer from misconduct.” See attachment 1, proposed policy 351 section 351.3.1 , and proposed policy 1304 section 1304.2. The proposal made by Councilmembers Taplin and Kesarwani made it clear that these cameras would be “used solely to solve criminal investigations.” The proposed application of these cameras by the BPD is not in alignment with the Council's original objective of restricting thei r use as a crime deterrent and solely for solving ongoing criminal investigations. See attachment 2, the revised agenda material for supplemental packet 1 of the Council’s October 12, 2021, regular meeting. Therefore, we recommend that the authorized use section should be revised to reflect Council’s intent . The PAB’s suggested changes to Policy 351 are included hereto as Attachment 5.

If, after a careful review of all relevant information, the City Council determines that it would be appropriate to expand the permissible uses of these systems beyond their original intent, the policy must specify what those allowable uses are. The current lack of clarity surrounding the proposed uses leaves too much room for interpretation, which could result in unintended uses that are not aligned with the Council's intent or the needs of the general public. Therefore, a well -defined policy that explicitly outlines the acceptable uses of these systems is necessary to ensure that they are used only for their intended purposes and to maintain public trust in their implementation.

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5 The adoption of two similar policies could cause implementation confusion.

The BPD's Draft Policy 351, "External Fixed Video Surveillance Cameras," and Policy 1304, "Surveillance Use Policy - External Fixed Video Surveillance Cameras," are almost identical. While one policy is a "use" policy intended to provide internal training guidelines and the other is a "surveillance use" policy, it is difficult to distinguish between the two .

The Police Accountability Board recommends these policies be consolidated into a comprehensive single policy or that the policies are revised to better reflect their intended purpose. If the Council and the BPD deem it appropriate to merge the policies, pl ease refer to Attachment 5.

Other Notes:

Doubts on the effectiveness of the proposed surveillance camera installation.

In their Budget Referral memo to City Council on October 12, 2021, Council Members Taplin and Kesarwani cite a 2011 Urban Institute study entitled “Evaluating the Use of Public Surveillance Cameras for Crime Control and Prevention.” That study of three large cities—Baltimore, Chicago, and Washington DC —concluded that fixed surveillance cameras could reduce crime, but only “when actively monitored” in real-time, a condition that raises personnel and other costs substantially (La Vigne et al., Page xii). Proposed policies 351 and 1304 appear to limit the cameras to the sole use of recording only video without sound and explicitly prohibit the integration of additional technologies.

The PAB's stance is not to advocate for the removal of restrictions on the integration of surveillance technology. Rather, the PAB suggests that all parties consider the possible advantages of implementing these cameras in comparison to the costs of maintenance, implementation, and training associated with the systems. According to the Urban Institute's study, "analysis results indicate that cameras, when actively monitored, have a cost-beneficial impact on crime with no statistically significant evidence of displacement to neighboring areas. However, in some contexts and locations , these crime reduction benefits are not realized" (La Vigne et al., Page xii). The study also specifies two reasons why certain locations do not observe a reduction in crime. As previously mentioned, the first explanation is that the cameras are not consistently monitored in real-time, and the

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6 second is those areas with fewer cameras and restricted coverage limit the potential for crime prevention (La Vigne et al., Page xii).

All stakeholders must evaluate the limitations identified in the Urban Institute's study and assess whether the infrastructure necessary to make these cameras effective is already established. As the PAB acknowledges, as do other interested parties, these cameras can serve as a vital tool for deterring crime. Nonetheless, to ensure that crime is not merely being displaced to other regions, we enco urage additional research to be conducted. Such research should consider the long -term effects of surveillance technology in specific areas and assess whether crime rates have decreased, remained constant, or relocated to neighboring regions. By conducting additional research, we can better comprehend the impacts of surveillance technology and make informed decisions that prioritize public safety.

Doubts on the interpretation of Government Code 34090 as implemented in proposed policies 351.5 and 1304.7
The PAB questions the relevance of California Government Code 34090 concerning the proposed data retention schedule in the proposed policies —specifically sections 351.5 and 1304.7. The PAB has interpreted the proposed policies to say that all video recordings, including recordings of citizen engaging in non -criminal activity, is subject to section 34090.6.a which states “the head of a department of a city or city and county, after one year, may destroy recordings of routine video monitoring, and after 100 days destroy recordings of telephone and radio communications maintained by the department.” Within this section, the following definitions are provided:
• “recordings of telephone and radio communications” means the routine daily recording of telephone communication s to and from a city, city and county, or department, and all radio communications relating to the operations of the departments.
• “routine video monitoring” means video recording by a video or electronic imaging system designed to record the regular and ongoing operations of the departments described in subdivision (a), including mobile in -car video systems, jail observation, and monitoring systems, and building security recording systems.

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7 • “department” includes a public safety communications center operated by the city or city and county.”
The PAB believes this government code, based on the definition provided, may not apply to all the data gathered by the proposed technology and that the activity of private citizens may be deleted before one year.

Based on the definitions provided by the government code, the PAB believes that the one-year retention period only applies to the monitoring of routine or departmental activities (i.e building security videos, routine video monitoring of maintenance and repair activities, police officer dash camera footage). Under this definition and the context of the proposed surveillance camera use, members of the public are not part of the “regular and ongoing operations ” of city agents and their video recording would n ot be considered routine video monitoring and could be deleted much earlier than a year . However, if the video recording of members of the public is part of the regular and ongoing operations of any of these departments (such as a routine traffic stop) , then it would fall under the definition of routine video monitoring . Otherwise, the PAB believes the retention period should be shorter than what is currently included in the proposed policies.

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8 Works Cited
La Vigne, Nancy G, et al. “Evaluating the Use of Public Surveillance Cameras for Crime Control and Prevention.” Www.urban.org, Urban Institute, 19 Sept. 2011, https://www.urban.org/research/publication/evaluating-use-public-surveillance- cameras-crime-control-and-prevention.

Additional Research on the topic
Piza, E. L., Welsh, B. C., Farrington, D. P., & Thomas, A. L. (2019). CCTV surveillance for crime prevention: A 40 ‐year systematic review with meta ‐analysis. Criminology & public policy, 18(1), 135-159.

Piza, E. L. (2018). The crime prevention effect of CCTV in public places: A propensity score analysis. Journal of Crime and Justice, 41(1), 14-30.

National Academies of Sciences, Engineering, and Medicine. (2018). Proactive policing:

Effects on crime and communities. National Academies Press.

Alexandrie, G. (2017). Surveillance cameras and crime: a review of randomized and natural experiments. Journal of Scandinavian Studies in Criminology and Crime Prevention, 18(2), 210-222.

Lum, C., Koper, C. S., & Willis, J. (2017). Understanding the limits of technology’s impact on police effectiveness. Police Quarterly, 20(2), 135-163.

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9 Attachment List

Attachment Description
1 Surveillance Technology Acquisition Report and Proposed Policies 351 and 1304
2 Copy of Consent Item Number 20, City Council Actions from the October 12, 2021, Regular Meeting, and Related Supplementary Materials. 3 Copy of Action Item Number 44 with City Council Actions from the December 14, 2021, Regular Meeting.
4 Copy of City Manager Dee Williams -Ridley's Off -Agenda Memorandum to Council on January 25, 2022, Presenting an Early Version of Policy 351. 5 PAB’s Proposed Revisions to Policy 351 and 1304 Which Consolidates Both Policies.

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Police Accountability Board
&
Office of the Director of
Police Accountability

POLICY REVIEW REPORT
BPD DRAFT POLICIES 611 & 1303:

UNMANNED AERIAL SYSTEM OPERATIONS &

SURVEILLANCE USAGE

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Police Accountability Board

Mayor
Jesse Arreguin

City Manager
Dee Williams-Ridley

Berkeley Police Department
Interim Chief Jennifer Louis

Police Accountability Board
John Moore, Chair
Regina Harris, Vice-Chair
Kitty Calavita
Juliet Leftwich
Deborah Levine
Cheryl Owens
Ismail Ramsey

Office of the Director of Police Accountability
Hansel Aguilar, Director of Police Accountability
Jose Murillo, Policy Analyst

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Contents
Introduction and Overview: .......................................................................................................................... 1 Recommendation:......................................................................................................................................... 4 Concerns regarding potential implications for civil liberties and constitutional rights ............................ 5 The role of civilian oversight in the acquisition and use of UAS ............................................................... 6 Lack of technical specifications and potential misuse .............................................................................. 7 Lack of definition for “Exigent Circumstances”: A key concern for appropriate use of UAS in law enforcement ............................................................................................................................................. 8 The uncertainty of UAS operations through mutual aid agreements with outside agencies .................. 9 References .............................................................................................................................................. 10 Attachments ................................................................................................................................................ 11

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1 Police Accountability Board
&
Office of the Director of
Police Accountability

POLICY REVIEW REPORT
BPD DRAFT POLICIES 611 & 1303:

UNMANNED AERIAL SYSTEM OPERATIONS & SURVEILLANCE USAGE
Date of Report: Thursday, February 23, 2023

Introduction and Overview:

On January 11 th, 2023, the Office of the Director of Police Accountability (ODPA) presented to the Board a recommendation regarding Policy Complaint #31, which concerned the alleged use of drones by the Berkeley Police Department (BPD) during the 2022 Solano Stroll event. See Attachment 1, th e ODPA Recommendation to the Police Accountability Board (PAB) regarding Policy Complaint #31. The ODPA advised the Police Accountability Board (PAB) not to proceed with the policy complaint process due to the upcoming review of new BPD Unmanned Aerial System (UAS) acquisition and use policies. The PAB accepted the recommendation. On January 24 th, 2023, Interim Chief Louis provided the PAB and ODPA with two policies —Policy 611 “Unmanned Aerial System (UAS) Operations” and Policy 1303 “Surveillance Use Policy – Unmanned Aerial System (UAS)” —and respective acquisition report as required by Berkeley Municipal Code §2.99.030.2. See Attachment 2, Draft Policy 611 “Unmanned Aerial System (UAS) Operations” and Policy 1303 “Surveillance Use Policy – Unmanned Aerial System (UAS).”

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2 Although that is the immediate procedural history of how these proposed policies have made it before the Board, the conversation on UAS technologies is not new to the City of Berkeley. The conversation began over 10 years ago with the PAB’s predecessor agency, the Police Review Commission (PRC). Specifically, on December 18, 2012, the Berkeley City Council reviewed a resolution submitted to it by the Berkeley Peace and Justice Commission to "Proclaim Berkeley a No Drone Zone and Enact an Ordi nance to that Effect." At that time, the Council referred the issue of drones, or unmanned aerial vehicles, back to the Peace and Justice Commission, the Berkeley Police Review Commission, and the Berkeley Disaster and Fire Commission for further review and study. The Council asked that the referenced stakeholder Commissions report back to Council for further consideration of the issues and review a proposal to permit police use of drones upon approval of the City Manager, or approval of the Chief of Poli ce in emergencies when the City Manager isn't available, in the following circumstances:

1. In the case of a disaster;

2. To assist in locating missing persons;

3. To assist in rescue efforts;

4. To assist in a police pursuit of known suspects who have committed serious or violent crimes.

See Attachment 3, the PRC’s 2013 letter and recommendation on drones to the Mayor and City Council.

Ultimately, the Council decided on February 24, 2015, to impose a ban on the use of unmanned aircraft systems, commonly known as "drones," by the BPD for one year and to formulate a protocol for their deployment by law enforcement. However, the Council granted permission for the Berkeley Fire Department to use drones for emergency response in the event of a disaster, although the Fire Department did not procure any and currently has none. See Attachment 4, the Berkeley City Council’s minutes for February 24, 2015 , where the topic is discussed as action item number 26. Subsequently, the Council enacted Ord. 7592-NS §2 in 2018, which introduced Chapter 2.99 to the Berkeley Municipal Code.

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3 For this report, the term Unmanned Aerial System (UAS) is defined in the same manner as provided in the BPD Surveillance Acquisition Report (hereinafter the “Report”). A UAS is defined as an unmanned aircraft that is capable of sustained flight, whether th rough pre-programmed instructions or remote control, and is equipped with components designed to gather information through various means, such as imaging or recording.

Typically, a UAS is composed of an unmanned aircraft that includes a chassis, propellers for flight, communication equipment, flight stabilization technology, a control chip, a camera, and a digital image/video storage system. Additionally, a UAS includes a remote- control unit that communicates with the aircraft, as well as battery charging equipment for both the aircraft and the remote control. UAS is controlled from a remote-control unit with wireless connectivity, which allows pilots to view the UAS and its surroundings from a birds-eye perspective. The UAS's cameras enable pilots to view the aerial perspective, and image and video data are recorded onto secure digital (SD) memory cards that can be removed from the UAS for evidence.

The Report addresses the need for UAS technology as being necessary to “[improving] the capacity of law enforcement (LE) to provide a variety of foundational police services.” See Attachment 5, a copy of BPD’s draft Surveillance Acquisition Report for Unmanned Aerial System (UAS). The claim is that the acquisition of UAS drones by the Berkeley Police Department w ould significantly improve their capacity to provide foundational police services and that the technology has already been proven to save lives and help capture dangerous criminal suspects in other law enforcement agencies. The need for this acquisition is justified by an annual increase in violent crimes in Berkeley, including shootings, robberies, assaults, and firearms recovery. From 2018 to 2022, the yearly average number of shootings has doubled. In 2021 Berkeley had 265 robberies, 210 aggravated assaults, 57 sexual assaults, and 118 firearms recovered. See Attachment 5.

The Department notes that UAS drones can provide a greater view into the immediate surroundings of crime scenes and active pursuits, which can offer officers greater time and distance to de -escalate volatile situations (see Attachment 5) . Furthermore, the Department states that UAS drones are effective in locating missing persons in remote

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4 areas and assisting in rescue missions. Overall, the claim is that UAS systems would help mitigate risk for both officers and the public.

The increasing number of police departments across the country acquiring and using drones indicates a growing trend in law enforcement agencies relying on this technology.

The Atlas of Surveillance, a project of the Electronic Frontier Foundation (EFF) and the University of Nevada, has reported that at least 1,172 police departments nationwide are currently using drones (Guariglia, 2022). With the widespread use of UAS technology, it is becoming increasingly evident that drones are being viewed as an essential tool for law enforcement agencies as UAS technologies continue to develop. The PAB does not challenge the claim that UAS technology can be beneficial to both the BPD and the community, as long as the appropriate accountability measures and safeguard s are in place. Additionally, the PAB also recognizes the concern for disparate impacts when implementing these technologies as noted by Samuelson Law, Technology & Public Policy Clinic , “it can also enable targeting an d discrimination against vulnerable communities” (Chivukula et al., 2021).

In conducting this policy review, the PAB assessed the necessity of acquiring a drone, weighed the benefits of such an acquisition against the cost and the concerns raised by the community, and identifi ed the oversight measures that should be considered if the technology is deemed necessary to acquire. To that end, the Board reviewed the historical record of this conversation to include the PRC’s reports and recommendations, the current literature surrounding UAS technologies, and neighboring jurisdictions' policies and uses of UAS technologies.

Recommendation:

The Board notes that i t is not clea r whether Berkeley Municipal Code 2.99 "Acquisition and Use of Surveillance Technology," specifically section 2.99.030.2, requires review if the Berkeley Police Department does not intend to acquire drones. Because the preambles to both proposed policies (611.5 and 1303.2) clearly state , “UAS shall only occur as the result of a mutual assistance request”, the PAB needs to know if the Berkeley

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5 Police Department intends to request or is requesting acquisition for or purchase of drones. If BPD does not intend to make this purchase it would appear more appropriate to propose a policy for requests for mutual aid such as in BPD Policy 418 "Obtaining Air Support". That policy should then include in its title that this is the mutual aid policy for use of other Department’s Drones. Berkeley PD will not have the authority to supervise, train or limit other jurisdictions’ use of their drones.

To ensure the City of Berkeley and the Berkeley Police Department adopt Unmanned Aerial System (UAS) policies that restrict th e use of this technology to the most serious situations, minimize the potential for constitutional violations, and increase trust between BPD officers and community members, the PAB recommends that the City not approve the Department’s proposed policies in their current form. Furthermore, the PAB recommends that when and if the City revisits the issue of adopting Unmanned Aerial System (UAS) policies for use or acquisition it addresses the following concerns:

Concerns regarding potential implications for civil liberties and constitutional rights

UAS technologies present concerns for the preservation, respect, and adherence to well- established civil liberties and constitutional rights. Specifically, the technological capabilities of drones can threaten First Amendment rights to freely and peaceably assemble (U.S. Const. amend. I) and the Fourth Amendment protection which safeguards, “…the privacy and security of individuals against arbitrary invasions by governmental officials” (Camara v. Municipal Court of City and County of San Francisco, 1967). Considering the Board’s purpose of promoting public trust through the review of the Police Department’s policies, practices, and procedures, the PAB believes the current policies as drafted will impede that purpose.

In the PRC’s 2013 Town Hall discussion, Linda Lye, staff attorney with the American Civil Liberties Union, indicated that deploying drones not only raises serious Fourth Amendment concerns, but would also likely violate the California Constitution’s Articl e l, Section l, which grants privacy protection for personal information. Among some of the reasons to oppose the technology, she stated:

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6 • Their low cost encourages widespread surveillance.
• Their small size and advanced abilities prevent people from knowing they are being spied on.

The role of civilian oversight in the acquisition and use of UAS

The role of a civilian oversight body, such as the PAB, in these instances, is to ensure that the use of technology by law enforcement is appropriate, transparent, and in line with the community values and protects civil libert ies. The current reporting on UAS deployments is limited to the Annual Surveillance Technology Report compiled by the City Manager. This limited reporting is done in compliance with Ordinance 7592 -NS § 2.

While an annual report can provide some insight, currently the City of Berkeley falls short of meeting the transparency standards set by other California cities when reporting out on UAS deployments (See San Jose UAS Deployments 1, Chula Vista Drone -Related Activity Dashboard2; Hayward Police Department Flight Logs3).

In 2022, the BPD requested UAS support from the Alameda County Sheriff’s Office (ASCO) on three occasions. See Attachment 6, a copy of the UAS Deployment entries of the City Manager’s 2022 surveillance technology usage report. Given the possibility of an increase in UAS deploy ments in Berkeley, it is crucial to establish an updated log that provides information on what, when, and why the UAS was deployed, as well as the duration of each deployment. This information is essential in ensuring transparency and accountability for law enforcement agencies, particularly in li ght of the concerns surrounding deployments of UAS. A publicly accessible log of UAS deployments would provide the community with much-needed transparency and accountability, and it would help build trust between law enforcement and residents. The PAB strongly recommends the implementation of such a measure if the BPD decides to implement the proposed policies.

1 https://www.sjpd.org/records/uas-deployments
2 https://www.chulavistaca.gov/departments/police-department/programs/uas-drone-program 3 https://www.hayward-ca.gov/police-department/transparency/uas-drone

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7 Lack of technical specifications and potential misuse

The BPD's current proposals are not transparent enough and do not clearly outline which specific UAS technologies they are seeking to use through mutual aid agreements. The wide range of capabilities and features of different UAS systems is a cause for concern among members of the Berkeley Community. The 2013 PRC Recommendation to City Council Regarding Drones identifies concerns regarding the advanced capabilities of drone technologies, including thermal imaging. See Attachment 3. In addition, the PRC letter also raised the issue of "mission creep", where certain technologies are initially requested for specific purposes but are later used for unintended or broader purposes.

The BPD cited the study, “Mission -based citizen views on UAV usage and privacy: an effective perspective,” within their Acquisition Report. In the study, the authors indicate that community members are “much more concerned over their privacy when the UAV was airborne 24 hours a day than when it was used for a specific mission and returned to base” (Winter et al., 2016). The study suggests that citizens may be more accepting of UAS technology when they “see the advantages of the UAS usage outweighing their privacy concerns.” For instance, UAS technology used for search and rescue during natural disasters may lead citizens to perceive the gain in benefits that offset their privacy concerns. However, when the purpose and capability of such technology are not clear, members of the community may become concerned about the uses of the UAS. This research, as cited by the Berkeley Police Department, highlights the need for clear guidelines on the appropriate usage of UAS to balance the potential benefits of UAS operations with citizens' right to privacy.

The lack of clarity and transparency regarding the technical specifications for UAV acquisition and usage has been a major source of concern for the PAB and the Berkeley community. As noted, the PAB will not endorse any policy related to UAS acquisition and usage that does not incorporate measures to promote transparency and limit the acquisition and usage of certain surveillance technologies. The current policy is vague in terms of technical specifications and does not provide any additional information ot her than the basic features of a majority of modern -day UAVs. This lack of clarity raises

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8 concerns about privacy violations, civil rights abuses, and the potential for mission creep.

Without clear guidelines on what technologies are being acquired and how they will be used, the community is left to speculate on the potential harms and risks associated with UAVs, which can erode public trust and acceptance. Providing clear guidelines and disclosures of the technical specifications would be a critical step to ward promoting greater public acceptance of UAVs while also upholding individual rights and maintaining public trust.

Lack of definition for “Exigent Circumstances”: A key concern for appropriate use of UAS in law enforcement

Clearly defining what qualifi es as an exigent circumstance helps prevent officers from claiming exigent circumstances as a blanket justification for using UAS surveillance technology. Inappropriate use of UAS systems can create a culture of constant surveillance, which can erode public trust and exacerbate tensions between BPD and the community. By using UAS only when necessary, BPD can demonstrate that they respect the privacy and civil liberties of the public and are not engaging in constant monitoring.

Additionally, restricting the use of drones to exigent circumstances can help prevent mission creep, which occurs when a technology or policy designed for a specific purpose is gradually expanded to other areas or uses. By setting clear limitations on when and how drones can be used, law enforcement can help ensure that they are not overstepping their bounds or engaging in practices that are not consistent with their intended purpose.

The PAB recognizes that UAS technology has the potential to be used for legitimate law enforcement pur poses. However, to ensure the technology is used responsibly and transparently, policies must be put in place to guide their use. The PAB believes that the policy being considered by the BPD should clearly define what an exigent circumstance is, to provide better guidance to BPD staff as to when it is appropriate for drones to be used. The PAB is not comfortable endorsing a policy that does not clearly define what constitutes an exigent circumstance, as this generates too much ambiguity.

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9 The uncertainty of UAS operations through mutual aid agreements with outside agencies

The use of unmanned aerial systems (UAS) by law enforcement is a complex issue, and the uncertainty created by the proposed policy surrounding UAS operations through mutual aid agreements with outside police agencies adds another layer of complexity.

The PAB is concerned that the policies being considered by the BPD do not provide clear guidelines on how the Department will ensure that the UAS used under mutual aid agreements comply with t he authorized uses, limitations, and reporting requirements of the City of Berkeley. The lack of clarity on how the Department will oversee UAS operations under mutual aid agreements raises concerns about the potential misuse of the technology, which can result in the erosion of public trust. Therefore, the PAB urges the BPD to provide more clarity on how it plans to manage UAS operations under mutual aid agreements and ensure that they comply with the authorized uses and limitations outlined in the City of Berkeley’s policies.

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10 References
Chivukula, A., & Takemoto, T. (n.d.). Local surveillance oversight ordinances - berkeley law. Berkeley Law. Retrieved February 17, 2023, from
https://www.law.berkeley.edu/wp-content/uploads/2021/02/Local-Surveillance- Ordinances-White-Paper.pdf
Guariglia, M. (2022, January 6). How are police using drones? Electronic Frontier Foundation. Retrieved February 17, 2023, from
https://www.eff.org/deeplinks/2022/01/how-are-police-using- drones#:~:text=Across%20the%20country%2C%20police%20departments,depart ments%20nationwide%20are%20using%20drones
Legal Information Institute. (n.d.). Roland Camara, appellant, V. Municipal Court of the city and county of San Francisco. Legal Information Institute. Retrieved February 17, 2023, from https://www.law.cornell.edu/supremecourt/text/387/523 U.S. Constitution - First Amendment | Resources - Congress. Constitution Annotated:

Analysis and Interpretation of the U.S. Constitution. (n.d.). Retrieved February 17, 2023, from https://constitution.congress.gov/constitution/amendment-1/ Winter, S. R., Stephen, R., Gajapriya, T., & Russell, T. (2016, February 29). Mission- based citizen views on UAV usage and privacy: An affective perspective. Journal of Unmanned Vehicle Systems. Retrieved February 17, 2023, from https://cdnsciencepub.com/doi/10.1139/juvs-2015-0031

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Kate Harrison
Councilmember, District 4
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7140 TDD: 510.981.6903 E-Mail: [email protected]

SUPPLEMENTAL AGENDA MATERIAL
for Supplemental Packet 2

Meeting Date: May 23, 2023

Item number: 46

Item Description: Surveillance Ordinance items related to Fixed Surveillance Cameras and Unmanned Aerial Systems (UAS)

Submitted by: Councilmember Harrison

RECOMMENDATION:

Adopt revised version of the External Fixed Surveillance Cameras Policy 351 consistent with Councilmember Taplin and Kesarwani’s legislative intent and 2021 Council action approving the budget referral.

BACKGROUND
The authors' 2021 budget referral item was explicit that it was limited to criminal investigations: "deter gun violence and obtain evidence to solve criminal investigations." In addition, the authors explicitly stated their limited intent: "We note that the security camera footage would be used solely for the purpose of solving criminal investigations. The cameras are not intended and would not be used for any kind of surveillance purposes whatsoever."

Nevertheless, the policy proposed by BPD broadly expands uses to include monitoring of pedestrian and traffic activity, and civil investigations.

Further, in approving the camera budget referral in 2021 the Council was clear to state that data should be strictly used for "active [criminal] investigations only." Minutes from the Council action in October 2021 read:

Approved recommendation as revised in Supplemental Communications Packet #1 from Councilmember Taplin, and further revised to include the amendments below. • Refer to the City Manager to develop a use policy for the security cameras that includes provisions that the data may be used for active investigations only and that the policy will include the data retention schedule. Staff to provide Council with an off -agenda memo commemorating the use policy.
• The locations of the cameras will be based on calls-for-service data; that staff will bring a list of locations to Council; and to refer the item to the AAO1 budget process

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The amended version included in this item narrows the scope to the version Council approved.

The proposed Policy 351 as drafted also attempts to re-litigate the question of whether video or image recordings constitute "government records" that have to be kept for a year or more.

During the Parking Enforcement ALPR development process, Councilmember Harrison successfully worked with the City Attorney to determine that collection of data which did not result in an investigation does not constitute a government record in and of itself. For example, thousands of drivers may pass through a given intersection in a day; images of their vehicles should not be retained unless part of an active City investigation. As with ALPRs parking enforcement, data should only be retained for purposes identified in the policy. The proposed version clarifies that unless a video recording has a nexus to an active investigation, use of force by a police officer, detention, arrest, or recordings relevant to a formal or informal complaint, all recordings shall be purged within 30 days.

Finally, as drafted, Policy 351 permits expansive installation of cameras potentially at locations not approved by Council with the phrase "Camera placement includes, but is not limited to." The policy also conflates two distinct types of surveillance: recording and live monitoring, which needs to be delineated and clarified to match the authors' and Council's intent. This updated version of Policy 351 separates policies around recording and monitoring to properly achieve the intent of the authors and Council.

ATTACHMENT
Revised BPD Policy 351

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1 Berkeley Police Department
Law Enforcement Services Manual

External Fixed Video Surveillance Cameras
351.1 PURPOSE AND SCOPE
This policy provides guidance for the use of City of Berkeley external fixed video surveillance cameras by the Berkeley Police Department.

351.2 POLICY
The Berkeley Police Department utilizes a video surveillance system to enhance its anti-crime strategy, to effectively allocate and deploy personnel, and to enhance safety and security in public areas and City property. As specified by this policy, Ccameras may be placed in strategic locations throughout the City to detect record and deter crime, to help the City safeguard against potential threats to the public, to help the City manage emergency response situations during natural and human-made disasters, to assist City officials in providing services to the community, among other uses specified in Section 351.3.1.

Video surveillance in public areas will be conducted in a legal and ethical manner while recognizing and protecting constitutional standards of privacy.

351.3 OPERATIONAL GUIDELINES
Only City Council-approved video surveillance equipment shall be utilized. BPD Members authorized to review video surveillance should only record and monitor public areas and public activities where no reasonable expectation of privacy exists and pursuant to Section 351.3.1.

The City Manager shall obtain Council approval for any proposed additional locations for the use of video surveillance technology.

351.3.1 PLACEMENT, REVIEW AND MONITORING
Camera placement will be guided by this policy and the underlying purpose or strategy associated with the overall video surveillance plan. As appropriate, the Chief of Police should confer with other affected City departments when evaluating camera placement. Environmental factors, including lighting, location of buildings, presence of vegetation or other obstructions, should also be evaluated when determining placement.

Current City Council approved locations:

Policy
351

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5 • 6th Street at University Avenue

• San Pablo Avenue at University Avenue

• 7th Street at Dwight Way

• San Pablo Avenue at Dwight Way

• 7th Street at Ashby Avenue

• San Pablo Avenue at Ashby Avenue

• Sacramento Street at Ashby Avenue

• College Avenue at Ashby Avenue

• Claremont Avenue at Ashby Avenue

• 62nd Street at King Street

The cameras shall only record video images and not sound. Recorded images pursuant to Section 351.5 may be used for specific and active City criminal or civil administrative investigations. The video surveillance system may be usemonitored by the Cityful strictly for the following purposes:
(a) To support specific and active criminal or administrative investigationsprevent, deter and identify criminal activity.
(b) To address identified areas of criminal activity.
(c)(b) To respond to critical incidents or natural disasters.

(d) To assist in identifying, apprehending and prosecuting offenders. (e) To document officer conduct during interactions to safeguard the rights of the public and officers.
(f) To monitor pedestrian and vehicle traffic activity in order to assist with traffic related investigations.
(g) To document City of Berkeley employee, employer, and/or customer conduct during interactions to safeguard the City of Berkeley employee, employer, and customer from misconduct.

Unauthorized recording, viewing, reproduction, dissemination or retention is prohibited.

351.3.2 FIXED CAMERA MARKINGS
All public areas monitored by video surveillance equipment shall be marked in a conspicuous manner with unobstructed signs to inform the public that the area is under police surveillance.

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6 351.3.3 INTEGRATION WITH OTHER TECHNOLOGY
The Department is prohibited from integrating or accessing system capabilities of the video surveillance system with other systems, such as gunshot detection, automated license plate recognition, facial recognition and other video-based analytical systems.

351.4 VIDEO SUPERVISION
Access to video surveillance cameras data shall be limited to Berkeley Police Department (BPD) personnel utilizing the camera database for uses described above, with technical assistance from Public Works personnel. Information may be shared in accordance with 351.6 or 1304.9 below.

BPD Members members seeking access to the camera system shall seek the approval from the Investigations Division Captain, or their designee.

351.4.1 VIDEO LOG
No one without authorization will be allowed to login and view the recordings. Access to the data must be obtained through the Public Works Department. All system access including system log- in, access duration, and data access points is accessible and reportable by the Public Works Department’s authorized administrator. Those who are authorized and login should automatically trigger the audit trail function to ensure compliance with the guidelines and policy. This is further outlined in 1304.4 of the Surveillance Use Policy.

351.4.2 PROHIBITED ACTIVITY
Video surveillance systems will not intentionally be used to invade the privacy of individuals or observe areas where a reasonable expectation of privacy exists.

Video surveillance equipment shall not be used to harass, intimidate or discriminate against any individual or group.

Video surveillance systems and recordings are subject to the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.

351.5 STORAGE AND RETENTION OF MEDIA
Video surveillance recordings are transient means to create potential government records, but are not government records in and of themselves. Except as otherwise permitted in this section, video surveillance recordings shall be purged within thirty (30) days. The cameras should record minimally for one year as guided by Government Code 34090.

Recordings of incidents involving use of force by a police officer, detentions, arrests, or recordings relevant to a formal or informal complaint shall be retained for a minimum of two years and one month. Recordings relating to court cases and personnel complaints that are being adjudicated will be manually deleted at the same time other evidence associated with the case is purged in line with the Department’s evidence retention policy. Any recordings related to administrative or civil proceedings pursuant to this section shall be maintained until such matter is fully adjudicated, at which time it shall be deleted in line with the Department’s evidence retention

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7 policy, and any applicable orders from the court.

Any recordings needed as evidence in a criminal or civil administrative proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures.

351.5.1 EVIDENTIARY INTEGRITY
All downloaded and retained media shall be treated in the same manner as other evidence. Media shall be accessed, maintained, stored and retrieved in a manner that ensures its integrity as evidence, including strict adherence to chain of custody requirements. Electronic trails, including encryption, digital masking of innocent or uninvolved individuals to preserve anonymity, authenticity certificates and date and time stamping, shall be used as available and appropriate to preserve individual rights and to ensure the authenticity and maintenance of a secure evidentiary chain of custody.

351.6 RELEASE OF VIDEO IMAGES
Data collected and used in a police report shall be made available to the public in accordance with department policy and applicable state or federal law, also referenced in Policy 1304.8.

Requests for recorded video images from the public or the media shall be processed in the same manner as requests for department public records pursuant to Policy 804.

Requests for recorded images video from other law enforcement agencies shall be referred to the Investigations Division Captain, or their designee for release in accordance with this policy and a specific and active and legitimate law enforcement purposecriminal investigation.

Recorded video images that are the subject of a court order or subpoena shall be processed in accordance with the established department subpoena process.

351.7 VIDEO SURVEILLANCE AUDIT

The video surveillance software generates a site log each time the system is accessed. The site log is broken down by server, device, user or general access. The site log is kept on the server for two years and is exportable for reporting. System audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial.

BPD will enforce against prohibited uses of the cameras pursuant to Policy 1010, Personnel Complaints or other applicable law or policy.

The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected.

After review by the Chief of Police, the memorandum and any associated documentation shall be placed into the annual report filed with the City Council pursuant to BMC Section 2.99.020 2. d., published on the City of Berkeley website in an appropriate location, and retained within the Professional Standards Bureau.

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8 351.8 TRAINING
All department members authorized to operate or access video surveillance systems shall receive appropriate training. Training should include guidance on the use of cameras, associated software, and review of relevant policies and procedures, including this policy. Training should also address state and federal law related to the use of video surveillance equipment and privacy.

All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance.

351.9 MAINTENANCE
It shall be the responsibility of the Public Works Department to facilitate and coordinate any updates and required maintenance.

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ACTION CALENDAR
June 13, 2023
(Continued from May 23, 2023)
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Chief of Police
Subject: Surveillance Ordinance items related to Fixed Surveillance Cameras and Unmanned Aerial Systems (UAS)

RECOMMENDATION
Adopt a Resolution approving the Surveillance Ordinance items related to Fixed Surveillance Cameras and Unmanned Aerial Systems (UAS).

FISCAL IMPACTS OF RECOMMENDATION
There are no additional fiscal impacts associated with the acquisition of this equipment.

There may be minimal fiscal impacts associated with training staff on the use of Fixed Surveillance Cameras.

INTRODUCTION
The City of Berkeley enacted the Surveillance Ordinance in 2018 with the stated purpose to establish a thoughtful process regarding the procurement and use of Surveillance Technology that carefully balances the City’s interest in protecting public safety with its interest in protecting the privacy and civil rights of its community members. To ensure that our general policies maintained consistent format with other policies the Department decided to develop parallel equipment ‘use’ policies where appropriate so that the Surveillance Use Policy could directly follow all the requirements explicitly set forth in BMC 2.99.020(4). Both policies are equally important, and all members are required to abide by the legal parameters of both policies. Recognizing the important of the Surveillance Use Policies, the Department has a chapter in our Departmental Policies specifically dedicated to the Surveillance Use Policies.

CURRENT SITUATION AND ITS EFFECTS
There are two surveillance technologies that are undergoing the process of the Surveillance Ordinance in order to obtain City Council approval. These technologies are External Fixed Video Surveillance Cameras and Unmanned Aerial System (UAS).

As part of the Surveillance Ordinance process the Department completed acquisition

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SURVEILLANCE ORDINANCE ITEMS ACTION ITEM

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and use policies which underwent review by the Police Accountability Board and Public Safety Policy Committee.

City owned fixed surveillance cameras are already in place in several locations in the City of Berkeley and Council has approved installation of fixed cameras at ten specific intersections in the City. Acquisition and Use Policies are being submitted through the Surveillance Ordinance process to ensure clear guidelines regarding the approved technologies and the manner in which they will be used.

The Berkeley Police Department has made several exigent uses of Unmanned Aerial System (UAS) technology and believes circumstances may arise in the future necessitating further use. The Surveillance Ordinance provides guidance to Temporary Acquisition and Use of Surveillance Equipment (BMC 2.99.040) which requires the following: notifications, and presumes that if the uses will continue beyond exigent circumstances that the Department bring forward an acquisition report and use policy.

Crime trends regionally and in the City of Berekely indicate there has been a steady increase in shootings in the City the last five years and Part 1 Crimes reached their highest level in ten years in 2022. The Department has developed and submitted acquisition and use policies for these surveillance technologies as we believe that they support our mission to safeguard our diverse community through proctive law enforcement and problem solving, treating all people with dignity and respect. These law enforcment tools enhance policing practices and create greater safeguards toward fair and impartial policing and safer outcomes during law enforcment interactions.

The External Fixed Video Surveillance Camera Policies are covered by three policies:

1. Policy 351 – The policy that will establish guidelines for the Police Department on the use of External Fixed Video Surveillance Cameras

2. Policy 1304 - The Surveillance Use Policy related to Fixed Video Surveillance Cameras

3. Surveillance Acquisition Report – Citywide Report regarding Cameras Each of the above External Fixed Video Surveillance Camera Policies received City Attorney Office review with Public Works staff being the primary author of the Acquisition Report and Berkeley Police Department staff being the primary author of Policies 351 and 1304.

The Unmanned Aerial System (UAS) policies are covered by the following policies:

1. Policy 611 – The policy that will establish guidelines for the Police Department on the use of an Unmanned Aerial System (UAS – commonly referred to as drones)

2. Policy 1303 - The Surveillance Use Policy related to UAS

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SURVEILLANCE ORDINANCE ITEMS ACTION ITEM

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3. An Acquisition Report related to UAS. The Department is not seeking to acquire UAS technology at this time but per the City Attorney’s Office, the Surveillance Ordinance requires completion of an Acquisition Report as well.

Each of the above policies received City Attorney office review. Attached to this report are the revised versions of all the aforementioned policies considering feedback from the Police Accountabilty Board and Public Safety Policy Committee meetings. Track changes are included to show the revisions the Department made.

Pursuant to the Surveillance Ordinance, BMC Section 2.99.030.2, upon receipt of acquisition and use policies from the Police Department, the Police Accountability Board (PAB) has a 30-day deadline “to recommend approval of the policy, object to the proposal, recommend modifications, or take no action.” The Department provided the PAB the acquisition and use policies for UnManned Aerial Systems on January 24, 2023 and Fixed Cameras on February 8, 2023. The PAB provided written recommendations to the Department and the PSPC. The Department provided information and solicited feedback on these policies from the Public Safety Policy Committee at the Committees March 20, 2023 and April 24, 2023 meetings.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.

CONTACT PERSON
Captain Mike Durbin, Police, Professional Standards Division (510) 981-5760 ATTACHMENTS:

1. REVISED: Policy 351- External Fixed Video Surveillance Cameras

2. REVISED: 1304- Surveillance Use Policy External Fixed Video Surveillance Cameras

3. REVISED: Acquisition Report- External Fixed Video Surveillance Camera

4. REVISED: 611- Unmanned Aerial System (UAS)

5. REVISED: 1303-Surveillance Use Policy Unmanned Aerial System (UAS)

6. REVISED: Acquisition Report- Unmanned Aerial System (UAS)

7. RESOLUTION

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REVISED-351 External Fixed Video Surveillance Cameras (Final).docx 1 Policy
351
External Fixed Video Surveillance Cameras
351.1 PURPOSE AND SCOPE
This policy provides guidance for the use of City of Berkeley external fixed video surveillance cameras by the Berkeley Police Department.

351.2 POLICY
The Berkeley Police Department utilizes a video surveillance system to enhance its anti-crime strategy, to effectively allocate and deploy personnel, and to enhance safety and security in public areas and City property. Cameras may be placed in strategic locations throughout the City to detect and deter crime, to help safeguard against potential threats to the public, to help manage emergency response situations during natural and human-made disasters, to assist City officials in providing services to the community, among other uses.

Video surveillance in public areas will be conducted in a legal and ethical manner while recognizing and protecting constitutional standards of privacy.

351.3 OPERATIONAL GUIDELINES
Only City Council-approved video surveillance equipment shall be utilized. Members authorized to review video surveillance should only monitor public areas and public activities where no reasonable expectation of privacy exists. The City Manager shall obtain Council approval for any proposed additional locations for the use of video surveillance technology.

351.3.1 PLACEMENT AND MONITORING
Camera placement will be guided by the underlying purpose or strategy associated with the overall video surveillance plan. As appropriate, the Chief of Police should confer with other affected City departments when evaluating camera placement. Environmental factors, including lighting, location of buildings, presence of vegetation or other obstructions, should also be evaluated when determining placement.

Current City Council approved locations:

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2 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx

• 6th Street at University Avenue
• San Pablo Avenue at University Avenue
• 7th Street at Dwight Way
• San Pablo Avenue at Dwight Way
• 7th Street at Ashby Avenue
• San Pablo Avenue at Ashby Avenue
• Sacramento Street at Ashby Avenue
• College Avenue at Ashby Avenue
• Claremont Avenue at Ashby Avenue
• 62nd Street at King Street
The cameras shall only record video images and not sound. Recorded images may be used for a variety of purposes, including criminal or civil investigations. The video surveillance system may be useful for the following purposes:
(a) To prevent, deter and identify criminal activity.
(b) To address identified areas of criminal activity.
(c) To respond to critical incidents.

(d) To assist in identifying, apprehending and prosecuting offenders. (e) To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
(f) To augment resources in a cost-effective manner.
(g)(f) To monitor pedestrian and vehicle traffic activity in order to assist with t raffic related investigations.
(h)(g) To document City of Berkeley employee, employer, and/or customer conduct during interactions to safeguard the City of Berkeley employee, employer, and customer from misconduct.

Unauthorized recording, viewing, reproduction, dissemination or retention is prohibited.

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3 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx 351.3.3 INTEGRATION WITH OTHER TECHNOLOGY
The Department is prohibited from integrating or accessing system capabilities of the video surveillance system with other systems, such as gunshot detection, automated license plate recognition, facial recognition and other video-based analytical systems.

Members seeking access to the camera system shall seek the approval from the Investigations Division Captain, or their designee.

Supervisors should monitor camera access and usage to ensure members are within department policy and applicable laws. Supervisors should ensure such use and access is appropriately documented.

351.4.2 PROHIBITED ACTIVITY
Video surveillance systems will not in tentionally be used to invade the privacy of individuals or observe areas where a reasonable expectation of privacy exists.

Video surveillance equipment shall not be used to harass, intimidate or discriminate against any individual or group.

Video surveillance systems and recordings are subject to the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.

351.5 STORAGE AND RETENTION OF MEDIA
The cameras should record minim ally for one year as guided by Government Code 34090.

Recordings of incidents involving use of force by a police officer, detentions, arrests, or recordings relevant to a formal or informal complaint shall be retained for a minimum of two years and one month. Recordings relating to court cases and personnel complaints that are being adjudicated will be manually deleted at the same time other evidence associated with the case is purged in line with the Department’s evidence retention policy. Any recordings related to administrative or

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4 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx civil proceedings shall be maintained until such matter is fully adjudicated, at which time it shall be deleted in line with the Department’s evidence retention policy, and any applicable orders from the court.
.

Any recordings needed as evidence in a criminal or civil proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures.

351.5.1 EVIDENTIARY INTEGRITY
All downloaded and retained media shall be treated in the same manner as other evidence. Media shall be accessed, maintained, stored and retrieved in a manner that ensures its integrity as evidence, including strict adherence to chain of custody requirements. Electronic trails, including encryption, digital maskin g of innocent or uninvolved individuals to preserve anonymity, authenticity certificates and date and time stamping, shall be used as available and appropriate to preserve individual rights and to ensure the authenticity and maintenance of a secure evidentiary chain of custody.

Requests for recorded video images from the public or the media shall be processed in the same manner as requests for department public records pursuant to Policy 804.

Requests for recorded images from other law enforcement agencies shall be referred to the Investigations Division Captain, or their designee for release in accordance with a specific and legitimate law enforcement purpose.

Recorded video images that are the subject of a court order or subpoena shall be processed in accordance with the established department subpoena process.

351.7 VIDEO SURVEILLANCE AUDIT

BPD will enforce against prohibited uses of the cameras pursuant to Po licy 1010, Personnel Complaints or other applicable law or policy.

The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected.

After review by the Chief of Police, the memorandum and any associated documentation shall be placed into the annual report filed with the City Council pursuant to BMC Section 2.99.020 2. d., published on the City of Berkeley website in an appropriate location, and retained within Professional Standards Bureau.

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5 REVISED-351 External Fixed Video Surveillance Cameras (Final).docx 351.8 TRAINING
All department members authorized to operate or access video surveillance systems shall receive appropriate training. Training should include guidance on the use of cameras, associated software, and review of relevant policies and procedures, including this policy. Training should also address state and federal law related to the use of video surveillance equipment and privacy.

All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance.

351.9 MAINTENANCE
It shall be the responsibilityies of the Public Works Department to facilitate and coordinate any updates and required maintenance.

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Video Surveillance Cameras - 1
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Published with permission by Berkeley Police Department

Berkeley Police Department
Law Enforcement Services Manual

Surveillance Use Policy-External Fixed Video
Surveillance Cameras
1304.1 PURPOSE
This policy provides guidance for the use of City of Berkeley external fixed video surveillance cameras by the Berkeley Police Department (BPD). This policy only applies to fixed, overt, marked external video surveillance systems utilized by the Department. It does not apply to mobile audio/video systems, covert audio/video systems or any other image-capturing devices used by the Department. Department Personnel shall adhere to requirements for External Fixed Video Surveillance Cameras covered in this policy as well as the corresponding Use Policy – 351.

This Surveillance Use Policy is legally-enforceable pursuant to BMC 2.99.

1304.2 AUTHORIZED USE
Only BPD members who receive training on this policy, who are then granted access by an administrator may access the data from the video surveillance cameras. This data may only be accessed to further a legitimate law enforcement purpose. Members must follow the necessary logging mechanisms, such as case number and case type when querying the database.

Recorded images may be used for a variety of purposes, including criminal or civil investigations. The video surveillance system may be useful for the following purposes:
(a) To prevent, deter and identify criminal activity.
(b) To address identified areas of criminal activity.
(c) To respond to critical incidents.
(d) To assist in identifying, apprehending and prosecuting offenders. (e) To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
(f) To augment resources in a cost-effective manner.
(g)(f) To monitor pedestrian and vehicle traffic activity in order to assist with traffic related investigations.
(h)(g) To document City of Berkeley employee, employer, and/or customer conduct during interactions to safeguard the City of Berkeley employee, employer, and customer from misconduct

The following are prohibited uses of the video surveillance system:
(a) Unauthorized recording, viewing, reproduction, dissemination or retention is prohibited.

(b) Video surveillance systems will not intentionally be used to invade the privacy of individuals or observe areas where a reasonable expectation of privacy exists.

Policy
1304

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(d) Video surveillance equipment shall not be used to harass, intimidate or discriminate against any individual or group.

(e) Video surveillance systems and recordings are subject to the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.

1304.3 DATA COLLECTION
The cameras will film and store video on City of Berkeley encrypted servers. License plate and facial recognition data hardware is not installed on the cameras. Audio is a standard feature of the camera, but is deactivated by the system administrator. The cameras and storage devices shall be wholly owned and operated/maintained by the City of Berkeley.

1304.4 DATA ACCESS
Access to video surveillance cameras data shall be limited to Berkeley Police Department personnel utilizing the camera database for uses described above, with technical assistance from Public Works personnel. Information may be shared in accordance with 1304.9 below.

Members seeking access to the video surveillance system shall seek the approval from the Investigations Division Captain, or their designee.

1304.5 DATA PROTECTION
All data transferred from the cameras and the servers shall be encrypted. Access to the data must be obtained through the Public Works Department. All system access including system log-in, access duration, and data access points is accessible and reportable by the Public Works Department’s authorized administrator. All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance.

1304.6 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. Provisions of this policy, including 1304.4 Data Access, 1304.5 Data Protection, 1304.7 Data Retention, 1304 .8 Public Access and 1304.9 Third Party Data Sharing serve to protect against any unauthorized use of video surveillance camera data. License plate and facial recognition data hardware is not installed on the cameras. Audio is a standard feature of the camera, but is deactivated by the system administrator. These procedures ensure the data is not used in a way that would violate or infringe upon anyone’s civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups. 1304.7 DATA RETENTION
The video surveillance camera system should record minimally for one year as guided by Government Code 34090. Recordings of incidents involving use of force by a police officer, detentions, arrests, or recordings relevant to a formal or informal complaint shall be retained for a minimum of two years and one month. Recordings relating to court cases and personnel complaints that are being adjudicated will be manually deleted at the same time other evidence associated with the case is purged in line with the Department’s evidence retention policy. Any recordings related to administrative or civil proceedings shall be maintained until such matter is fully adjudicated, at which time it shall be deleted in line with the Department’s evidence retention policy, and any applicable orders from the court. All data will automatically delete after the aforementioned retention period by the System Administrator from Public Works.

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Any recordings needed as evidence in a criminal or civil proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures.

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Berkeley Police Department
Law Enforcement Services Manual

Surveillance Use Policy-External Fixed Video Surveillance Cameras 1304.8 PUBLIC ACCESS
Data collected and used in a police report shall be made available to the public in accordance with department policy and applicable state or federal law.

Requests for recorded video images from the public or the media shall be processed in the same manner as requests for department public records pursuant to Policy 804.

Recorded video images that are the subject of a court order or subpoena shall be processed in accordance with the established department subpoena process.

1304.9 THIRD-PARTY DATA-SHARING
Requests for recorded images from other law enforcement agencies shall be referred to the Investigations Division Captain, or their designee for release in accordance with specific and legitimate law enforcement purposes.

1304.10 TRAINING
All department members authorized to operate or access video surveillance systems shall receive appropriate training. Training should include guidance on the use of cameras, associated software, and review of relevant policies and procedures, including this policy.

Training should also address state and federal law related to the use of video surveillance equipment and privacy.

All relevant recordings that are utilized will be collected pursuant to Policy 802, Property and Evidence, and retained pursuant to Policy 804 Records and Maintenance.

1304.11 AUDITING AND OVERSIGHT
The video surveillance software generates a site log each time the system is accessed. The site log is broken down by server, device, user or general access. The site log is kept on the server for two years and is exportable for reporting. Video surveillance system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial.

BPD will enforce against prohibited uses of this policy pursuant to Policy 1010, Personnel Complaints or other applicable law or policy.

1304.12 MAINTENANCE

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It shall be the responsibilityies of the Public Works Department to facilitate and coordinate any updates and required maintenance.

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PUBLIC WORKS DEPARTMENT SURVEILLANCE ACQUISITION REPORT

Surveillance Camera Acquisition Report 1

The first component, the Avigilon camera, is a device that incorporates a video recording from an image. The cameras are affixed to City of Berkeley-owned infrastructure including utility poles on City streets and parks. The cameras provide protection to indoor and outdoor spaces with high-resolution images of up to 5 MP, a wide field of view , and efficient bandwidth management in a compact design without compromising building aesthetics. Although license plate and facial recognition hardware is available, neither was purchased or installed. Without the hardware, these features cannot be activated. Audio is a standard feature of the camera, but will remain deactivated by the authorized administrators of the system.

The second component of the system is the server . Once the Avigilon camera captures the imagery, a local device called a server, functions as a repository for the data. Servers are physically secured on City property and video recordings are protected within the City’s network. Servers are designed to store recorded events in real time for secure retrieval and analysis. Recorded videos are transferred from t he server’s storage into an information management system, Avigilon Control Center (ACC) application. 1.

1 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=200320040AB839

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Surveillance Camera Acquisition Report 2

The third component is the Avigilon Control Center Client application (ACC) which streamlines data management and allows users to access videos on one secure platform. The ACC software provides various levels of analytics to sort stored videos faster and is a standard feature. These include pixel motion detection of vehicles and people. Vehicular characteristics are searchable by vehicle type and color. Personal characteristics are searchable by gender (gender is a binary search, female of male) , hair color, age, and upper and lower body clothing color. Authorized users of the system can only access data stored on a server through the ACC application. The ACC application is located on the server and accessed solely through the City’s secured intranet by protected login and password. The application does not allow the authorized administrator or system users to alter, manipulate, or edit any of the footage recorded by the server.

B. PURPOSE
Surveillance cameras will be utilized for the following business purposes:
i. To prevent, deter and identify criminal activity.
ii. To address identified areas of criminal activity.
iii. To respond to critical incidents.
iv. To assist in identifying, apprehending and prosecuting offenders. v. To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
vi. To augment resources in a cost-effective manner.
vii.vi. To monitor pedestrian and vehicle traffic activity in order to assist with traffic related investigations.
viii.vii. To document City of Berkeley employee, employer, and/or customer conduct during interactions to safeguard the City of Berkeley employee, employer, and customer from misconduct
C. LOCATION
Surveillance cameras encompassed by this report, are located at, or will be installed at, the following locations.

Future Projects:
• 6th Street at University Avenue

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Surveillance Camera Acquisition Report 3

• San Pablo Avenue at University Avenue
• 7th Street at Dwight Way
• San Pablo Avenue at Dwight Way
• 7th Street at Ashby Avenue
• San Pablo Avenue at Ashby Avenue
• Sacramento Street at Ashby Avenue
• College Avenue at Ashby Avenue
• Claremont Avenue at Ashby Avenue
• 62nd Street at King Street
Completed Projects:
• San Pablo Park
• City of Berkeley Marina
• Transfer Station
D. IMPACT
The primary intent of these cameras is to deter and address crime in the City of Berkeley. The Public Works Department will work to ensure that the video recordings are secured and o nly accessible to authorized personnel. The right to maintain someone's anonymity versus the need to collect information to maintain public safety is of paramount concern. The Department recognizes that all people have a right to privacy and is committed to protecting and safeguarding civil rights by adhering to the strictest requirements concerning the release of video recordings. There should not be any impact on anyone's civil liberties or civil rights. The camera system lacks the hardware to conduct license plate reader or facial recognition technology. Audio is a standard feature of the cameras, but will remain deactivated by the authorized administrators of the system. Staff is explicitly prohibited from using any facial recognition technology as outlined in BMC 2.99.

The Public Works Department will ensure responsible data management, transparency, and accountability including the posting of video surveillance notices.

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Surveillance Camera Acquisition Report 4

E. MITIGATION
In order to minimize violations of privacy , data shall be maintain ed in a secure, non -public accessible location, such locations requir e specialized system access including a dedicated password and log in. Data will be obtained or released in accordance with the use policy. Data will n ot be used to unlawfully discrimina te against people based on race, ethnicity, political opinions, religious or philosophical beliefs, trade union membership, gender identity, disability status, sexual orientation or activity, or genetic and/or biometric data. Additionally, the Department will not use the camera surveillance system to scan footage and identify individuals based on any of the categories listed in the preceding sentence.

Employees are prohibited from retaining, duplicating, or distributing video recordings except for departmental business purposes in accordance with the use policy.

F. DATA TYPES AND SOURCES
The surveillance camera system's use is limited to capturing non-audio, video recordings on affixed City buildings, including utility poles on streets and within park boundaries. The Camera Surveillance system collects video recordings in high-resolution imagery that is stored securely on a local server and accessible by auth orized users on the ACC application. As video images are recorded, t he ACC application automatically stamps the video with the current date/time and the camera's identity.

G. DATA SECURITY
External users will not have access to the ACC application. The authorized administrator and designated staff will have access to video recordings. To gain system access, staff must obtain approval from system management. Authorized users will access the ACC application via a single sign -on and password administered by Information Technology . All system access including system log-in, access duration, and data access points is accessible and reportable by the Public Works authorized administrator . The application prohibits the authorized administrator and users from altering, manipulating, tampering, or editing video recordings.

1. Establishing a system for downloading, storing, and securing of recordings.

2. Designating persons responsible for downloading recorded data.

3. Establishing a maintenance system to ensure the working order of surveillance cameras.

4. Monitoring the system to prevent tampering, deleting, and copying recordings.

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Surveillance Camera Acquisition Report 5

5. Working in alignment with the State of California record retention policy, AB 839 to ensure an appropriate retention schedule is being applied to recordings and associated documentation.

6. Maintaining an audit trail record for all access to video recording files , wherein access information for each file is logged using a secure log -in system. The ACC application associates an audit trail record with each user access information , thereby logging the date, time, user name, and activity occurring during each video recording file access.

Initial Purchase Costs:

Ongoing Costs:

Personnel, maintenance, and other ongoing costs, including compliance and other reporting and oversight requirements - $13,443.20 per year.

I. THIRD PARTY DEPENDENCE AND ACCESS
All Camera Surveillance data is accessed by a secure network login and password and stored on servers maintained by the Department of Information Technology . There is no third -party dependence or external access to information other than the ACC is a proprietary technology which requires all the components to be Avigilon.

J. ALTERNATIVES
The City can decide to rely on traditional policing techniques as a method for addressing crime such as deploying sworn officers to patrol City buildings and parks.

There is a broad consensus – among the community– that surveillance cameras can be an important tool for deterring criminal activities.

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Berkeley Police Department
Law Enforcement Services Manual

Unmanned Aerial System (UAS) Operations
611.1 PURPOSE AND SCOPE
The purpose of this policy is to establish guidelines for the use of an unmanned aerial system (UAS) and for the storage, retrieval and dissemination of images and data captured by the UAS.

This policy is intended to be the Use Policy, however all aspects of the Surveillance Use Policy, 1303 which corresponds with the Unmanned Aerial System is equally applicable. Department Personnel shall adhere to requirements for Unmanned Aerial Systems covered in this policy as well as the corresponding Surveillance Use Policy – 1303.

611.1.1 DEFINITIONS
Definitions related to this policy include:

Unmanned Aerial System (UAS) - An unmanned aircraft of any type that is capable of sustaining directed flight, whether preprogrammed or remotely controlled (commonly referred to as an unmanned aerial vehicle (UAV)), and all of the supporting or attached systems designed for gathering information through imaging, recording or any other means.

611.2 POLICY
Unmanned aerial systems may be utilized for the purpose of enhancing the department's mission of protecting lives and property by enabling remote surveillance and monitoring in the situations specified in 611.5 below when other means and resources are not available or are less effective.

Any use of a UAS will be in strict accordance with constitutional and privacy rights and Federal Aviation Administration (FAA) regulations. All uses of the UAS shall be reported in compliance with the Surveillance Technology Ordinance, BMC 2.99.

All requests and deployments shall be reporte d annually in the Surveillance Technology Report as outlined in BMC 2.99.070. Additionally, the Department shall publish data regarding th e specific requests and deployments on the Department’s transparency portal within 14 days of use.

611.3 PRIVACY
The use o f the UAS potentially involves privacy conside rations. Absent a warrant or exigent circumstances, operators and observers shall adhere to FAA altitude regulations and shall not intentionally record or transmit images of any location where a person would ha ve a reasonable expectation of privacy (e.g., residence, yard, enclosure). Operators and observers shall take reasonable precautions to avoid inadvertently recording or transmitting images of areas where there is a reasonable expectation of privacy. Reason able precautions can include, for example, deactivating or turning imaging devices away from such areas or persons during UAS operations.

Policy
611

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Unmanned Aerial System (UAS) Operations
. .

611.4 PROHIBITED USE
The UAS video surveillance equipment shall not be used:
• To conduct random surveillance activities.
• To target a person based solely on actual or perceived characteristics, such as race, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, economic status, age, cultural group, or disability. • To harass, intimidate, or discriminate against any individual or group. • To conduct personal business of any type.

The UAS shall not be weaponized.

611.5 AUTHORIZED USE
The use of a UAS shall only occur as the result of a mutual assistance request, and no BPD personnel will be allowed to operate a UAS. UAS may only be requested for the purpose of remote surveillance and monitoring in the following specified situations:
(a) Mass casualty incidents (e.g. large structure fires with numerous casualties, mass shootings involving multiple deaths or injuries);
(b) Disaster management;
(c) Missing or lost persons;
(d) Hazardous material releases;
(e) Sideshow events where many vehicles and reckless driving is present; (f) Rescue operations;
(g) Training;
(h) Hazardous situations which present a high risk to officer and/or public safety, to include:
i. Armed suicidal persons;
ii. Hostage situations;
iii. Barricaded suspects;
(i) Arrest of armed and/or dangerous persons
(j) Service of high-risk search and arrest warrants involving armed and/or dangerous persons
(k) Other unforeseen exigent circumstances.

Unmanned Aerial Systems shall only be utilized for law enforcement purposes.

611.6 REQUEST PROCESS
Pursuant to BMC 2.99, the Surveillance Technology Ordinance governing the use of drones, the following steps must occur to seek permission to temporarily use a drone. The requests shall be made to the City Manager via the Chain of Command, as follows:

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Unmanned Aerial System (UAS) Operations
. .

(a) All requests shall be routed to the Watch Commander, if they are not available, the Duty Command Officer (DCO)
(b) The Watch Commander or DCO should contact the Chief of Police, or the Acting Chief of Police in his/her absence.
(c) The Chief of Police, Acting Chief of Police, or in exigent circumstances the DCO shall obtain approval from the City Manager authorizing the use of a Drone. The City Manager is responsible for logging the use and ensuring the notifications and reporting requirements are met pursuant to BMC 2.99.040.

611.7 RETENTION OF UAS DATA
If available, any data collected by the use of a UAS should be purged by BPD within 60 days if it doesn't contain any data of evidentiary value. If the data has evidentiary value, it should be uploaded into BPD's evidence database and kept pursuant to the established retention guidelines set forth in policy 804-Records Maintenance and Release.

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Berkeley Police Department
Law Enforcement Services Manual

Surveillance Use Policy-Unmanned Aerial
System (UAS)
1303.1 PURPOSE
The purpose of this policy is to establish guidelines for the use of an unmanned aerial system (UAS) and for the storage, retrieval and dissemination of images and data captured by the UAS.

Department Personnel shall adhere to requirements for Unmanned Aerial Systems covered in this policy as well as the corresponding Use Policy – 611.

1303.2 AUTHORIZED USE
The use of a UAS shall only occur as the result of a mutual assistance request, and no BPD personnel will be allowed to operate a UAS. UAS may only be requested for the purpose of remote surveillance and monitoring in the following specified situations:
(a) Mass casualty incidents (e.g. large structure fires with numerous casualties, mass shootings involving multiple deaths or injuries);
(b) Disaster management;
(c) Missing or lost persons;
(d) Hazardous material releases;
(e) Sideshow events where many vehicles and reckless driving is present (f) Rescue operations;
(g) Training;
(h) Hazardous situations which present a high risk to officer and/or public safety, to include:
i. Armed suicidal persons;
ii. Hostage situations;
iii. Barricaded suspects;
(i) Arrest of armed and/or dangerous persons
(j) Service of high-risk search and arrest warrants involving armed and/or dangerous persons
(k) Other unforeseen exigent circumstances
Unmanned Aerial Systems shall only be utilized for law enforcement purpose.

1303.3 DATA COLLECTION
If equipped, it shall be the request on all BPD deployments that the “video recording only” function of the UAS be activated whenever the UAS is deployed, and deactivated whenever the UAS deployment is completed. The UAS operator will rely on SD Cards for video recordings.

Policy
1303

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1303.4 DATA ACCESS
Access to UAS data shall be limited to Berkeley Police Department (BPD) personnel and the mutual assistance agency, in connection with an active investigation. Information may be shared in accordance with 1303.9 below. It shall be at the discretion of the Commander or senior supervisor to discern which members have a need to know, and limit access to those members. BPD is prohibited from selling any data obtained from the UAS.

1303.5 DATA PROTECTION
Whenever feasible, the data from the UAS should be encrypted by the vendor or operator. The data should only be accessible to BPD personnel who have been granted security access.

1303.6 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership an d control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures described within this policy (Data Access, Data Protection, Data Retention, Public Access and Third-Party Data Sharing) protect against the unauthorized use of Unmanned Aerial Systems (UAS). These procedures ensure the data is not used in a way that would violate or infringe upon anyone's civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.

1303.7 DATA RETENTION
If available, any data collected by the use of a UAS should be purged by BPD within 60 days if it doesn't contain any data of evidentiary value. If the data has evidentiary value, it should be uploaded into BPD's evidence database and kept pursuant to the established retention guidelines set forth in policy 804-Records Maintenance and Release.

1303.8 PUBLIC ACCESS
UAS data which is collected and retained under t his policy is considered a "law enforcement investigatory file" pursuant to Government Code § 6254, and shall be exempt from public disclosure. UAS data which is retained pursuant to this policy shall be available via public records request pursuant to applicable law regarding Public Records Requests as soon as the criminal or administrative investigations has concluded and/or adjudicated.

All requests and deployments shall be reported annually in the Surveillance Technology Report as outlined in BMC 2.9 9.070. Additionally, the Department shall publish data regarding the specific requests and deployments on the Department’s transparency portal within 14 days of use.

1303.9 THIRD-PARTY DATA-SHARING
Data collected from the UAS may be shared with the following:

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Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Unmanned Aerial System (UAS) - 3

(a) The District Attorney's Office for use as evidence to aid in prosecution, in accordance with laws governing evidence;
(b) Other law enforcement personnel as part of an active criminal investigation; (c) Other third parties, pursuant to a Court Order or Search Warrant.

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Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Unmanned Aerial System (UAS) - 4
Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Unmanned Aerial System (UAS)

1303.10 TRAINING
The use of a UAS shall only occur as the result of a mutual assistance request, and no BPD personnel will be allowed to operate a UAS. All BPD personnel shall be provided with this Surveillance Use Policy. BPD recognizes that the assisting agency will need to satisfy their respective training requirements to operate the UAS, however B PD personnel shall follow this policy and all relevant policies, including Records Management, Policy 804 while access or retaining any of the captured data from the UAS.

1303.11 AUDITING AND OVERSIGHT
Division Captains or their designee shall ensure compliance with this Surveillance Use Policy.

The security and integrity of the Surveillance Technology and collected information will be completed in the form of a random biennial audit of the uses from the Audit and Inspection's Sergeant. This audit will be routed to the Captain of Professional Standards Bureau and the Chief of Police for review.

Intentional violation of this policy may serve as grounds for disciplinary action pursuant to Policy 1010, Personnel Complaints.

1303.12 MAINTENANCE
UAS's will only be used in a mutual assistance request, and thereby must be obtained from the City Manager via the Chain of Command. All UAS maintenance shall be conducted by the owner/ operator of the device consistent with all other mutual assistance response agreements.

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1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

1 UNMANNED AERIAL SYSTEM (UAS)
A. DESCRIPTION

An Unmanned Aerial System (UAS) is an unmanned aircraft of any type that is capable of sustaining directed flight, whether pre-programmed or remotely controlled and all of the supporting or attached components designed for gathering information through imaging, recording, or any other means. Generally, a UAS consists of:
● An unmanned aircraft which consists of the chassis with several propellers for flight, radio frequency and antenna equipment to communicate with a remote- control unit, control propellers and other flight stabilization technology (e.g. accelerometer, a gyroscope), a computer chip for technology control, a camera for recording, and a digital image/video storage system for recording onto a secure digital card (SD card);

● A remote-control unit that communicates with the unmanned aircraft via radio frequency; and

● A battery charging equipment for the aircraft and remote control.

UAS are controlled from a remote-control unit (similar to a tablet computer). Wireless connectivity lets pilots view the UAS and its surroundings from a bird's-eye perspective.

UAS have cameras so the UAS pilot can view the aerial perspective. UAS record image and video data onto a secure digital (SD) memory cards. SD cards can be removed from UAS after flights to input into a computer for evidence.

B. PURPOSE
UAS offer to significantly improve the capacity of law enforcement (LE) to provide a variety of foundational police services. This technology has already been used with many law enforcement agencies to save lives and help capture dangerous criminal suspects.

UAS can support first responders in hazardous incidents that would benefit from an aerial perspective.

Responding to violent crime in Berkeley often requires officers to face risks to their safety – in addition to the clear risks faced by members of the public when violent crime is present. From 2018 to 2022, the yearly average number of shootings has doubled. In 2021 Berkeley had 265 robberies, 210 aggravated assaults, 57 sexual assaults, and 118 firearms recovered.

Technology such as UAS can play a vital role in mitigating these omnipresent dangers, by providing a greater view into the immediate surroundings of crime scenes and active pursuits. The use of a UAS is also in line with the Department’s philosophy around de- escalation, as this tool can provide greater time and distance, which are the critical components in offering officers the greatest likelihood of a peaceful, or less violent resolution.

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2 Searches for armed and dangerous suspects are more effective and controlled with UAS support; an armed suspect can be hiding in a tree or on a roof. LE can respond accordingly and more safely when provided with this critical information (see Section #10 below “Alternatives Considered” for more information on how UAS compares to alternatives for situational awareness). More informed responses also lead to less injury and less uses of force.

LE agencies have successfully used UAS to locate missing persons, especially in more remote areas – as well as for rescue missions. UAS is also being used during disasters and during any hazardous material releases. The situational awareness UAS provides has also become an important tool for large events (e.g. sport events, parades, and festivals); the aerial view provides information that would otherwise require a much larger deployment of LE personnel to maintain the same level of public safety support.

Furthermore, smaller UAS can be equipped with a loud speaker to communicate (e.g. hostage situations/providing verbal commands and directions to the subject).

BPD must seek approval from the City Manager prior to any use. BPD may then make a mutual assistance request to ACSO for their UAS. This approval process could be rapid or take several hours depending if their resources are deployed elsewhere, and there is no guarantee that the equipment will be available.

C. LOCATION
BPD proposes to use UAS as outlined in policy 611- Unmanned Aerial System (UAS), and further guided by policy 1303-Surveillance Use Policy Unmanned Aerial System (UAS). Department Personnel shall adhere to requirements for Unmanned Aerial Systems covered in this policy as well as the corresponding Surveillance Use Policy – 1303. BPD proposes to only use UAS as the result of a mutual assistance request, and no BPD personnel will be allowed to operate a UAS.

UAS may only be requested for the following specified situations:
a. Mass casualty incidents (e.g. large structure fires with numerous casualties, mass shootings involving multiple deaths or injuries);
b. Disaster management;
c. Missing or lost persons;
d. Hazardous material releases;
e. Sideshow events where many vehicles and reckless driving is present; f. Rescue operations;
g. Training;
h. Hazardous situations which present a high risk to officer and/or public safety, to include:

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3 i. Barricaded suspects;
ii. Hostage situations;
iii. Armed suicidal persons;
i. Arrest of armed and/or dangerous persons
j. Service of high-risk search and arrest warrants involving armed and/or dangerous persons
k. Other unforeseen exigent circumstances
Unmanned Aerial Systems shall only be used for law enforcement purposes.

Potentially, UAS could be deployed in any location in the City of Berkeley where one or more of the above situations occur and where the proper authorizations are provided.

Fortunately, several of these situations rarely occur – but some do occur regularly, such as arresting armed/dangerous person. BPD occasionally arrests individuals for violent homicides, shootings, robberies, violent sexual assaults, and other crimes– UAS can provide situational awareness in all of these critical incidents to provide a greater level of safety for officers, as well as for nearby civilians
D. IMPACT
BPD recognizes that the use of UAS raises privacy concerns. UAS are becoming ubiquitous in the United States, and there is a growing concern that people can be surveilled without notice or reason. There is concern that UAS can be utilized to observe people in places, public or private, where there is an expectation of privacy.

The level of potential privacy impact depends upon factors such as flight elevation and camera zoom magnitude, as well as where the UAS is flown.

The results of the research study titled, “Mission-based citizen views on UAV usage and privacy: an affective perspective1,” published in February 2016 found that people’s perceptions of how UAS impacts privacy relate to use type. The researchers from College of Aeronautics, Florida Institute of Technology, and the Aeronautical Science at Embry-Riddle Aeronautical University (ERAU), College of Aviation UAS Lab found that people tend to be less concerned about police UAS use when the technology is only used for specific uses - “concerns for privacy were less in the condition where the UAV was only used for a specific mission than when it was operated continuously.” Policy 611 and 1303 provide strict acceptable guidelines, and Authorized Uses which explains when BPD personnel can request the use of a UAS for specific missions.

E. MITIGATION

1 https://www.nrcresearchpress.com/doi/abs/10.1139/juvs-2015-0031#.XkHEAWhKiUl

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4 BPD’s policy 611 restricts BPD’s use of UAS in several ways to promote greater privacy protections.

BPD will only request use UAS for specific missions rather than operating continuously, mitigating concerns raised in the February 2016 study cited above.

Policy 611 and 1303. Authorized Use lists the only allowable uses of UAS (e.g. mass casualty incidents, disaster management, missing or lost persons, hazardous material releases, sideshow events where many vehicles and reckless driving is present, rescue operations, training, hazardous situations which present a high risk to officer and/or public safety to armed suicidal persons, hostage situations, barricaded suspects, arrest of armed and/or dangerous persons, service of high risk search and arrest warrants involving armed and/or dangerous persons, and other unforeseen exigent circumstances). Policy 611 also articulates the Request Process which indicates the approval must come from the City Manager via the Chain of Command for all use approvals.

All requests and deployments shall be reported annually in the Surveillance Technology Report as outlined in BMC 2 .99.070. Additionally, the Department shall publish data regarding the specific requests and deployments on the Department’s transparency portal within 14 days of use.

The Federal Aviation Administration (FAA) sets strict flight regulations for all UAS users, including for law enforcement. The FAA provides two law enforcement options for creating acceptable UAS under 14 Code of Federal Regulation (CFR) part 107, subpart E, Special Rule for Model Aircraft; the agency can designate individual members to earn FAA drone pilot certificates and fly under the rules for small UAS, or receive a FAA certificate to function as a “public aircraft operator” to self-certify agency drone pilots and drones. Either way, these options allow for BPD to use systems under 55 pounds, for flying at or below 400 feet above ground level. Absent an emergency situation warranting a FAA COA/Part 107 waiver- permitted law enforcement response, law enforcement is also restricted from using UAS to fly over or near the following locations:
• Stadiums and Sporting Events;
• Near Airports; and
• Emergency and Rescue Operations (wildfires and hurricanes).

Policy 611 “Privacy Considerations,” outlines several other protocols for mitigating against privacy abuse:

BPD UAS mutual assistance personnel must adhere to FAA altitude guidelines – flying below 400 feet helps to ensure that UAS is not used for surveilling overly large geographic areas; BPD will use UAS to focus on specific areas.

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5 BPD UAS operators shall not intentionally record or transmit images of any location where a person would have a reasonable expectation of privacy (e.g. residence, yard, enclosure, place of worship, medical provider’s office).

Mutual assistance operators and observers shall take reasonable precautions, such as turning imaging devices away, to avoid inadvertently recording or transmitting images of areas where there is a reasonable expectation of privacy.

Policy 611 “Prohibited Use” explains that:

UAS shall not be used for the following activities:
• To conduct random surveillance activities.
• To target a person based solely on individual characteristics, such as, but not limited to race, ethnicity, national origin, religion, disability, gender or sexual orientation when not connected to actual information about specific individuals related to criminal investigations;
• For the purpose of harassing, intimidating, or discriminating against any individual or group; or
• To conduct personal business of any type.

BPD is prohibited from weaponizing any UAS.

F. DATA TYPES AND SOURCES
UAS will record using industry standard file types such as (e.g. jpeg, mov, mp4, wav or RAW). Such files may contain standard color photograph, standard color video, or other imaging technology such as thermal. Although UAS can transmit one-way audio from the operator, the UAS technology available today does not currently record sound.

G. DATA SECURITY
BPD takes data security seriously and safeguards UAS data by both procedural and technological means. The video recording function of the UAS shall be activated whenever the UAS is deployed. Video data will be recorded onto Secure Digital (SD) Cards. Any data collected by the use of a UAS should be kept by BPD minimally for 60 days. The data should be uploaded into BPD’s evidence database and kept pursuant to the established retention guidelines set forth in policy 804-Records Maintenance and Release.

H. FISCAL COST
The only costs will be staff time, since at this time BPD is only proposing this acquisition for the purposes of leveraging our neighboring agencies UAS during the proposed policy

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6 guidelines. Use of UAS by neighboring agencies in a mutual assistance scenario will not result in additional costs to the City.

I. THIRD-PARTY DEPENDENCE AND ACCESS
BPD is primarily reliant upon the Alameda County Sheriff’s Office (ACSO) and Oakland Police Department when exigent circumstances occur that warrant UAS requests. BPD requested and received UAS support from ACSO two times in 2021/2022.

BPD proposes that any data collected from the UAS may be shared with the following:

The District Attorney's Office for use as evidence to aid in prosecution, in accordance with laws governing evidence;
Other law enforcement personnel as part of an active criminal investigation; Other third parties, pursuant to a Court Order or Search Warrant.

J. ALTERNATIVES
In some instances, BPD could rely on requesting the assistance of an outside agency’s helicopter, which cause significant carbon emissions, especially when considering the footprint of a UAS.

Another alternative is the deployment of additional police resources. The inherent problem with this alternative is that this may be counterproductive to the Department’s philosophy on de-escalation as it reduces the Department’s ability to leverage time and distance to reduce the likeliness of a physical or violent confrontation.

K. EXPERIENCE OF OTHER ENTITIES
Currently, in Alameda County, the following cities have UAS programs, The Alameda County Sheriff’s Office, the Oakland Police Department, Fremont Police Department, Hayward Police Department, and Newark Police Department. At the time of publication, the author had not received a response from Oakland and Fremont Police Departments.

Alameda County Sheriff’s Office
An Alameda County Sheriff’s Office representative indicated the only financial burden is the changing technology every 12-18 months, including improved batteries and cameras that require possible updates.

In 2015 when the Sheriff’s Office proposed the use of UAS’ to the Board of Supervisors, several community groups expressed opposition due to the fear of an invasion of privacy and spying on the public. Since the approval by the Board of Supervisors, ACSO created a website for the public to voice their complaints. As of January 2023, they have received one complaint from a community member in Alameda County. That specific complaint was deemed not relate to ACSO UAS.

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7 No community costs. No unintended video was captured, and if it was, it would be deleted per their policy.

Successes in their program were described as follows:
1) Community and Officers are Safer
2) UAVs contributed to the arrest of fleeing suspects
3) Reported Missing Person suffering from a Health Condition (Alzheimer’s) have been located
4) Documenting crime scenes are conducted more efficiently and conducted in a shorter time

No noted failures to date from the program that were reported to Berkeley Police Department.

Hayward Police Department
Hayward Police Department did not have any unintended financial burdens. Their initial drone purchase (4 drones) was budgeted, and they also have a CIP (Capitol Improvement Budget) item where every three years they get $50,000 to purchase new drones as new equipment becomes available or just as a replacement plan.

Hayward Police Department did not report any unintended community costs or backlash.

Hayward Police Department reported that since the program began, it’s paid dividends past what they thought it would. For instance, a lieutenant with Hayward Police Department stated that several drone deployments have resulted in a significant risk reduction when trying to stabilize potentially critical incidents.

Hayward Police Department held two community meetings (separate from the council sessions) and had an outside agency bring a done, and they included an educational training for all persons who attended. This is believed to have mitigated many issues (and educated the city council members as well), which addressed many of the initial concerns. Hayward Police Department also worked closely with ACSO to craft their policy and create their program. Hayward Police Department has deployed their UAS approximately 75 times since March of 2022 with 0 citizen complaints.

Newark Police Department
Newark Police Department reported no unintended financial burdens associated with the UAS. Newark Police Department spent $1,200 to purchase a drone from BestBuy, which

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8 came from their organization’s operating funds. Newark Police Department obtained a grant which funded the purchase of three additional drones at a cost of $30,000.

Newark Police Department has not had any unintended community costs or backlash.

Newark Police Department has a community academy in which the Department provides training on the program and the uses associated with the UAS.

Newark Police Department reported that the program had the unintended benefit of working more closely with ACSO and Fremont, garnering a better working relationship which was unanticipated.

Newark Police Department used many of the processes that ACSO used in creating their UAS program. Newark Police Department relied heavily on the policies and practices developed by Alameda County Sheriff’s Office due to their very robust input from various stakeholders. This helped create a solid foundation they could build upon.

From this, they have succeeded in the creation and implementation of their UAS program.

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RESOLUTION NO. ##,###-N.S.

SURVEILLANCE ORDINANCE ITEMS: FIXED SURVEILLANCE CAMERAS

AND UNMANNED AERIAL SYSTEMS
WHEREAS, the Berkeley City Council adopted Ordinance NO. 7,592-N.S., the Surveillance Technology Use and Community Safety Ordinance on March 13, 2018; and WHEREAS, BMC section 2.99.020 (4) mandates a Surveillance Use Policy for use of Surveillance Technology; and
WHEREAS, External Fixed Video Surveillance Cameras and Unmanned Aerial System are considered Surveillance Technology per BMC section 2.99.020 (1); and WHEREAS, per BMC section 2.99.030 (1)(b), requires the City Manager to obtain City Council approval for the acquisition of new Surveillance Technology, Fixed Video Surveillance Cameras, by placing an item on the Action Calendar; and WHEREAS, per BMC section 2.99.030 (1)(c), requires the City Manager to obtain City Council approval for the use of new Surveillance Technology, Unmanned Aerial System by placing an item on the Action Calendar.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that it approves the acquisition and Use Policies for the External Fixed Video Surveillance Cameras and for the Unmanned Aerial System.

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ACTION CALENDAR
June 13, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront Sharon Friedrichsen, Budget Manager
Liam Garland, Director, Public Works
Subject: Provide Direction on Closing the Funding Gap to Complete Remaining Measure T1 Projects

RECOMMENDATION
Identify up to $9.062M to cover the Measure T1 funding gap in order to complete the current remaining T1 projects.

FISCAL IMPACTS OF RECOMMENDATION
An additional $5.362M to $9.062M is needed to complete Measure T1 Phase 2 projects.

This additional need is comprised of:
 $3.15M (4,000 sq. ft.) to $6.85M (6,000 sq. ft.) in construction cost increases and mitigation for unforeseen structural issues at the current building slated to be converted into the African American Holistic Resource Center (AAHRC);  $981,750 in construction cost increases across eight T1 Phase 2 projects for which scope cannot be reduced and budgets cannot be made whole with other funding sources;
 $880,000 for the Civic Center Upper Plaza Improvements/Turtle Island Monument project to cover construction cost increases and the recent scope changes; and
 $350,000 in North Berkeley Senior Center final project costs and legal fees.

If new funding cannot be identified to cover these costs, T1 projects will need to be reduced in phase (e.g. from construction to design or conceptual design only) or deleted from the T1 list.

CURRENT SITUATION AND ITS EFFECTS
City Council Direction from January 31, 2023 Meeting
Staff made City Council aware of this gap on January 31, 2023 and City Council referred it to the Budget and Finance Commission with the following action:

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The City Manager was directed to:

1. Fully fund the African American Holistic Resource Center as a replacement project instead of a renovation project.

2. Fully fund the Civic Center Upper Plaza Improvements/Turtle Island Monument project.

3. Use the following three criteria and return to the City Council with options for how to close the project funding gap: a. Prioritize projects that are public facing and public serving; b. Prioritize projects that have matching funds; and c. Prioritize projects that are in significant progress in the planning stage.

4. Look at all funding options including grants, General Fund excess equity, and any additional funding sources to close the funding gap, including potentially deferring projects that do not meet the three criteria described above.

5. Present the funding recommendations, and provide an update on the City’s capital improvement projects, to the Budget & Finance Committee for consideration prior to returning to the full City Council.

6. Provide recommendations for the replacement of the African American Holistic Resource Center that reflect a 4,000 square foot project and a 6,000 square foot project.

City Council Budget and Finance Committee Direction from April 20, 2023 Staff presented a report on April 20, 2023 to respond to the City Council direction from January 31, 2023. The Budget and Finance Committee asked questions about potential funding sources and existing projects and directed staff to come back to the Budget and Finance Committee with more information on May 4, 2023.

City Council Budget and Finance Committee Direction from May 4, 2023 Staff presented a report on May 4, 2023 to answer questions from the April 20, 2023 meeting. The Budget and Finance Committee took the following action to identify $9,060,000 to fund the T1 gap, inclusive of the 6,000 square foot African American Holistic Resource Center project:
 Use $4,050,000 from the Workers Compensation Fund;
 Use $2,800,000 of $6,750,000 allocated for the Hopkins Bike/Pedestrian T1 Project;
 Use $500,000 from the North Berkeley Senior Center (NBSC) Solar Battery Storage T1 Project;
 Use $643,899 of $1,293,889 from the Street/ Intersection Security Camera Project (General Fund (GF); and
 Use $666,101 of $1,300,000 from Fire Station 6 T1 Project.

DISCUSSION
T1 General Information
The $100M T1 Infrastructure Bond measure was passed by voters in November of 2016. Initially, the projects associated with the bond measure were to be completed in

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12 years, but will now be completed in 8 years (FY18-FY26). $103M of bond proceeds and interest combined with over $50M in leveraged funds will complete 76 different projects. The public process to determine T1 projects included over 60 public meetings.

All T1 projects were approved by City Council and recommended by the Public Works Commission and the Parks, Recreation, and Waterfront Commission. All T1 expenditures are limited to direct project costs and are audited every 2 years.

Per the Measure T1 Operations Manual (Section 4.5), changes to the list of T1 projects require consultation with the two Measure T1 lead commissions and action by City Council. After discussing this gap in their March 2023 meeting, the Parks, Recreation and Waterfront Commission took action during the April 12, 2023 meeting to suggest options for alternative funding (see Attachment 1). The Transportation and Infrastructure Commission discussed this item at their January and February 2023 meetings and did not take action.

In 2018, a similar funding gap arose during Phase 1 of the Measure T1 program because extra projects were added to the original T1 list and there was a similar surge in construction costs. The T1 lead commissions both recommended that City Council proceed with the projects and allocate the needed $5.3M to finish all projects.

Ultimately, this gap was borrowed from unallocated Phase 2 T1 Bond funds (Resolution No. 68,802-N.S.) A similar solution for the current gap is not possible because all Measure T1 bond funding has now been fully allocated.

T1 Funding Gap
This T1 funding gap exists because of significant construction cost increases over the last two years (2020- 2022) and unanticipated costs to three projects: the African American Holistic Resource Center (AAHRC), the Civic Center Upper Plaza Improvements – Turtle Island Monument (TIM), and the North Berkeley Senior Center (NBSC) project (see Attachment 2). These increases and unanticipated costs are discussed below:

Construction Cost Increases: ($981,750)
Construction costs have increased 26% over the last two years (2020 – 2022). These increases have required staff to reduce design and construction scopes and identify other funding sources where possible in order to complete many T1 phase 2 (T1P2) projects. Examples of these issues can be seen in the Willard Clubhouse replacement project and the new Ohlone ages 2-5 and 5-12 Playgrounds and Mural Garden project.

Less than 16 months ago, the Willard Clubhouse preferred conceptual design was reduced by more than 30% in order to complete the total project with the original T1 budget allocation of $7M. The construction contract at Ohlone Park, which was recently awarded at City Council in December of 2022, needed an additional $200,000 (or 10% additional project funding) from PRW CIP funds in order to proceed.

Unfortunately, eight T1P2 projects cannot be reduced in scope, and in fact, need an additional 15% in funding in order to produce a baseline project. This list includes four public restrooms, Marina Docks D&E Replacement, the 1947 Center St. building

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improvements, and two projects at the Corporation Yard. In total, an additional $981,750 is needed to complete these projects.

North Berkeley Senior Center (NBSC): ($350,000)
This $11.086M project is currently in the close-out phase and has approximately $350,000 of existing costs that are over and above the existing project budget (funded by T1, FEMA grant, and CIP funds). These costs include final construction and legal fees incurred to-date.

Civic Center Park Upper Plaza Improvements - Turtle Island Monument: ($880,000) In March of 2023, this project received approval from the Landmarks Preservation Commission. This approval will result in the issuance of a Structural Alteration Permit and construction in FY24. With construction cost increases and the recent scope changes that include additional indigenous art and water and lighting elements, the cost of the overall project budget has increased to $2.5M, without the artwork. It is anticipated that the artwork, which is estimated to be in the $500,000 range, will be funded by the Civic Arts program. This project is funded by T1, a Clean California grant, the Civic Arts, and the Parks Tax. This project could be reduced by $300,000 if the broken flagstone replacement work in the upper plaza was reduced significantly.

African American Holistic Service Center (AAHRC): ($3.15M- $6.85M) The AAHRC currently has $8.25M in total project funding (comprised of $7M T1, $225K GF and $1M from a federal earmark). Until last year, this funding would have been enough to complete the renovation of the 4,000 square foot city-owned building at 1890 Alcatraz Street. With increasing construction costs and the completion of a recent engineering assessment of the building and site (structural and geotechnical) which found significant structural problems1, City staff recommended that this building be replaced. At the January 31, 2023 meeting, City Council acted to eliminate the option of renovating the existing structure at 1890 Adeline, leaving only the size of building to be determined. A 4,000 square foot building will cost an additional $3.15M and a 6,000 square foot building will cost an additional $6.85M.

The 6,000 square foot building will allow for a new community room, additional therapy rooms, and a new youth space. The project architect cannot proceed with the design phase until direction on this issue can be provided.

Discussion of May 4, 2023 Reductions Recommended by Budget and Finance Committee
Use of Worker’s Compensation Fund :$4.05M
The City began its self-insured workers' compensation program on March 1, 1975. The City’s self-insured retention (SIR) has varied between $100,000 and $1,000,000 prior to 1Problems include inadequate shear capacity, diaphragm discontinuities, insufficient anchorage and cross ties, and expansive and unknown subsurface soils.

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2004/05 and is currently unlimited. Every two years, the City has an actuarial review conducted to determine the outstanding liabilities and determine the rates to use for budgeting and payroll purposes to fund the program annually. The recent actuarial study by Bickmore Actuarial showed the City’s estimated outstanding liabilities, as of June 30, 2023, at an 80% confidence level to be at $46.3 million for the workers’ compensation program. The City’s Workers’ Compensation Fund ended FY 2022 with a fund balance of $51.7, meaning that the City is currently able to fund its estimated liabilities in its Workers’ Compensation Program. However, just in 2021, the City’s estimated liabilities were $42.4 million and the fund balance was $41.5 million, falling short of covering liabilities. This also illustrates that liabilities increased by $9.3 million within 2 years.

While currently the City’s Workers Compensation liabilities do not exceed fund assets, this is a relatively recent accomplishment for this Fund, and a trend that would be advisable to strive to maintain moving forward. Currently the City has 374 workers compensation claims, which remain to be settled or will continue to require funds for claims with future medical expenses. Further, similar to general liability claims, it is very difficult to predict future settlement amounts. For these reasons, it is not advisable to borrow from this Fund. However, the City has previously borrowed from this Fund (there is an outstanding loan balance of $813,779 from the Premier Cru purchase) and the Budget and Finance Policy Committee recommends using just over $4 million to cover the T1 shortfall. This action would decrease the Fund balance to approximately $46.836 million, with $0.536 million in excess of current liabilities.

Reduce Paperless Contract System Project by $400,000
The FY 23-24 Adopted Budget included $400,000 in General Fund for the paperless contract workflow system, a collaborative project between the City Clerk and Finance to automate the contracting process, resulting in efficiencies in processing contracts and increasing sustainability by reducing the amount of paper involved in the current process. The Budget and Finance Policy Committee recommended reallocating the funding for this project to the T1 project shortfall based on the criteria identified by City Council, primarily that the project is neither public-facing or public-serving and that the project has not commenced.

Reduce T1 Street Improvements by $2.8M:

The estimated total budget for the Hopkins Street project is $11.5M. All of the T1 streets allocation of $6.75M had been allocated to this project, which would cover a large portion of that project’s paving cost. This project has been put on hold per the City Manager’s April 4 off agenda memo. Staff are incorporating the remainder of the project’s T1 funding into development of the FY24-FY28 Five Year Paving Plan, which is currently being vetted by a subcommittee of Transportation and Infrastructure Commission and will return to City Council for approval in the Fall. The Hopkins project’s non-T1 funding could remain in the project for future improvements approved by City Council.

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Reduce Emergency Power Supply Solar Batteries by $500,000:

This T1 project involves the installation of a battery to store the electric energy produced by solar panels at North Berkeley Senior Center. This project has not started, but was scheduled to begin in the spring of 2023. This reduction halts this project until further funding can be identified.

Reduce Street Intersection Security Camera Project by $643,899 The initial General Fund allocation for this project was $1,293,889 for ten locations identified by City Council. Public Works is scheduled to install the first set of cameras at 1 of the 10 intersections within the next several months. A revised budget of $650,000 may be sufficient funding for cameras at all 10 locations given current cost estimates, but staff will be in a better position to assess this after the completion of the first intersection in September of 2023.

Reduction in Fire Station 6 Project by $666,101
This project involves upgrades to windows, mechanical, electrical, and HVAC systems to make the building more energy efficient. The project is currently in the design phase.

Most recently, an ADA design was added after discussions with the Building Department and Fire Department. The next deliverable is a 30% drawing set, list of specifications, and cost estimate. This reduction in funding will limit this project to Design Development, and construction will not be possible.

Possible Options to reduce T1 Funding Gap presented by staff on April 20 and May 4, 2023 Budget and Finance Committee Meetings

Measure T1 project staff have worked hard to reduce scope or find additional funding from existing Public Works (PW) and Parks, Recreation and Waterfront (PRW) Capital funds in FY23 - FY25, but staff have determined that 11 projects cannot be completed without additional funding, (see Attachment 2). The funding needed for “construction cost-only increases (8 projects)”, the NBSC project, and the Civic Center Park Upper Plaza Improvements – Turtle Island Monument totals $2,211,750 and is needed in FY24. The remaining funding for the AAHRC ($3.15M or $6.85M) is not needed until FY25.

In order for City Council to evaluate all current projects, staff have produced 2 additional documents. Attachment 3 details all T1 Phase 2 project funding and current expenditures to-date and Attachment 4 is a list of all currently funding PRW and PW capital projects including their status and expenditures to-date. In the below possible options, staff describe reductions for funding needed in FY24 (option 1), the funding needed for all T1 projects including a 6,000 square foot AAHRC (option 2), and the funding needed for all T1 projects including a 4,000 square foot AAHRC (option 3). The projects chosen to fill these options are examples for discussion purposes.

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Option 1
Identify the $2,211,750 needed for FY24; and then commit to either the 4,000 or 6,000 square foot AAHRC and allocate the needed funding ($3.15M or $6.85M) in FY25. The design phase of the project cannot proceed if the size of the AAHRC has not been determined. If design work were to proceed and project dollars were to be spent, a change in the building size later on would render the design work not applicable and those project dollars would be wasted.

Option 1 can be accomplished by doing one of the following:
a. Use funding from FY22 Excess Equity ($240K), reassign $400K of T1 street funds, and defer the following example projects (totaling $1.58M) to the FY25 budget process:
$400K of PRW FY24 GF CIP for Cedar Rose Playgrounds;
$680K of T1 for the Ohlone Park Lighting; and
$500K of T1 for the NBSC Solar Battery Storage Project; Or…
b. Reassign $2,211,750 of the T1 Street Fund Allocation.

Option 2
Identify all $9,062,000 in funding needed for the shortfall in all 11 T1 projects, including the 6,000 square foot AAHRC. Option 2 can be accomplished by doing the following:
a. Use funding from FY22 Excess Equity ($240K), reassign $6.75M of T1 street funds, and defer the following projects (totaling $2.072M) to the FY25 budget process:
$400K of PRW FY24 GF CIP for Cedar Rose Playgrounds;
$522K of FY23 GF for Cameras in the Public Right of Way (reduce scope by 40%);
$300K of FY23 CIP Funds for 62nd Street Conversion to Cul De Sac; $350k of FY23 CIP Fund Allocation for Dredging of South Sailing Basin; and
$500K of T1 funding for the NBSC Solar Battery Storage Project; Or…
b. Use FY22 Excess Equity ($240K), reassign $1.197M of T1 street funds and defer the following projects (totaling $7.625M) to the FY25 budget process:
$2.8M of T1 funding for the Tom Bates Fieldhouse and Restroom Project; $1.5M of T1 funding for the 1947 Center Street HVAC Improvements; $400K of PRW FY24 GF CIP for Cedar Rose Playgrounds;
$650K of FY23 GF for Cameras in the Public Right of Way (reduce scope by 50%);
$300K of FY23 CIP Funds for 62nd Street Conversion to Cul De Sac; $350K of FY23 CIP Fund Allocation for Dredging of South Sailing Basin; $500K of T1 funding for the NBSC Solar Battery Storage Project; $680K of T1 Funding for the Ohlone Lighting Project; and $445K of T1 Funding for the Cesar Chavez Park Restroom Project.

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Option 3
Identify all $5,361,750 in funding needed for the shortfall in all 11 T1 projects, including the 4,000 square foot AAHRC. Option 3 can be accomplished by doing the following:
a. Reassign $5.361M of T1 street funds;
Or…
b. Use FY22 Excess Equity ($240K), reallocate $321,750 of T1 Streets funds, and defer the following projects (totaling $4.8M) to the FY25 budget process:
$2.8M of T1 funding for Tom Bates Fieldhouse and Restroom Project; $1.5M of T1 funding for the 1947 Center Street Improvements Project; $500K of T1 funding for the NBSC Solar Battery Storage Project.

The solutions to the Measure T1 Phase Two (T1P2) funding gap could involve finding new funding, or reducing phase of a project (e.g., funding design but not construction), or deleting certain projects from the T1P2 list.

BACKGROUND
In November 2016, Berkeley voters approved Measure T1 – a $100 million dollar general obligation bond to repair, renovate, replace or reconstruct the City’s aging existing infrastructure, including facilities, streets, sidewalks, storm drains, and parks.

Measure T1 passed with 86.5% of the vote.

From December 2016 through June 2017, the City undertook a public process to gather input on the proposed projects. In addition to three Measure T1 Workshops for the general public, the Parks & Waterfront and Public Works Commissions solicited input from the public and other City Commissions. The two lead commissions submitted a joint report to Council in June 20175 detailing their recommendations. The City Manager incorporated this input and submitted a final recommended list of projects. Council adopted this list and proposed plan for implementing Phase 1 of the T1 bond program on June 27, 2017.

For Phase 2, staff and the Commissions engaged in a much larger public process. This process consisted of over 45 community meetings to determine the next list of projects.

This list was approved by the City Council on December 15, 2020, Resolution No. 69,657-N.S. For a full list of projects and more details of the projects in Phase 1 and Phase 2, click here to view the Measure T1 Update Brochure.

ENVIRONMENTAL SUSTAINABILITY
Measure T1 projects include environmentally sustainable elements, such as electrification for facilities projects, permeable pavers or bioswales for street projects, and energy saving lighting in parks.

RATIONALE FOR RECOMMENDATION
In order to complete the current list of T1P2 projects by the bond program deadline, Council direction is needed to determine which projects will be reduced in scope or deleted, or funded by other funds.

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ALTERNATIVE ACTIONS CONSIDERED
None

CONTACT PERSON
Scott Ferris, Parks, Recreation & Waterfront, 510-981-6700 Sharon Friedrichsen, Budget Manager, 510-981-
Liam Garland, Public Works, 510-981-6300

Attachments:
1: PRW Commission Recommendation
2: Measure T1 projects needing additional funding
3: Measure T1 Phase 2 Project Status Matrix
4: List of all currently funded projects

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M E M O R A N D U M
Date: April 12, 2023
To: Honorable Mayor and Members of the Berkeley City Council, and the Bu
dget & Finance Committee
From: Parks, Recreation and Waterfront Commission
Subject: Measure T1 Phase 2 Shortfall Solution
Dear Mayor and Council Members,
The Parks, Recreation and Waterfront Commission (PRW) is committed to ensuring the success of the T1 Bond effort. We write now to share our recommendations on the current funding gap in Phase 2 T1 projects. These recommendations were an action ite
m at the regular meeting of the PRW on April 12,
2023 and approved unanimously.

BACKGROUND
Working with the Public Works Commission we successfully advocated for the passage of the T1 Bond in 2016 and now want to ensure the best use of those funds, to address critical infrastructure needs, promote transparency, support th
e community, address inequities, and, of critical importance, build long‐lasting trust with Berkeley residents. For example, to ensure the optimal allocation of T1 funds our commissions developed criteria on which to base selections for T1 projects. The original list of 7 criteria
was defined in 2017 and used to prioritize Phase 1 projects. In 2020 those criteria were updated to include:
‐ Greatest Benefit
‐ Equity
‐ Health, Safety and Resilience
‐ Environmental Sustainability/Durability
Very importantly, we wanted to provide our
residents with additional improvements in the areas of the city that have fewer parks, and in areas that have received less funding over the past decades.

Addressing racial equity played a major part in formulating our final recommendations and we request that our focus on equity and our original project list remain a priority.

Those decisions were made before Covid‐19,
long before we witnessed the increased importance of our parks, open space, and a functioning infrastructure for the health and safety of our community.

Providing our residents access to clean, accessible, and available facilities and open space is one of the most important duties we have before us.

CURRENT SITUATION
Staff have now identified a fundi
ng gap of $4.5 to $8.2M for the Phase 2 T1 projects. The City has faced T1 budgetary deficits in the past and found elegant solutions.

ATTACHMENT 1

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In 2019, the City faced a $6.8 million funding gap between the cost of the approved T1 Phase 1 Projects and the available Phase 1 bond funds. This gap was caused by “an increase in energy upgrades included in the facility projects, and soaring escalation in construction costs.” Because delay would increase the project costs and the importance of leveraging the voter approved T1 funds, the Co
uncil approved
* $1.5 million in interest income and
* the transfer of $5.3 million from the General Fund (GF) to the T1 fund to close the funding gap.

With this additional funding, all of the Phase 1 projects were fully funded.

In 2023, the City again faces a large gap of $4 – $8M betwee n the estimated cost of the approved Phase
2 Projects and the available bond funding. While some of the shortfall is caused by large increases in construction costs, requiring the T1 fund to pay back the $5.3M GF transfer significantly decreased the bond funding available for
Phase 2 T1 projects.

The Parks, Recreation and Waterfront Commission believes that all the approved T1 Phase 2 projects should be completed as they were recommended by both the Parks and Waterfront Commission and the Public Works Commission and approved by the City Council on Dec. 15, 2020. As discussed above,
the projects in Phase 2 attempted to provide a more equitable distribution of facilities in the City, whereas Phase 1 projects were selected from existing shovel ready projects to meet the three‐year bond spending requirement.

To solve the FY2023 funding cap, we ask the Council to come up with creative solutions that allow all approved projects to be complete. To facilitate finding a creative solution, we list several options for Council consideration.

Option 1. Over the next five years, allocate the increase in General Fund interest income over the 2022 baseline to the T1 Fund. The recent FY 2023 Mid‐Year Budget Update presented to the Council reported that the increase in interest income over the 2022 baseline was $0.9M for the first six months. Due to the significantly higher interest rates in 2023, the annual increase in interest income for the full year is likely to be ~$2M/yr. Since interest rates are projected to remain high for some time, the excess interest income over 5 years would fund all of the T1 Phase 2 projects, including the preferred 6,000 ft2 AAHRC.

Option 2. Forgive the 2019 General Fund loan and transfer $5.3 million back to the T1 account. As of June 30, 2022, the “unassigned” portion of the GF balance in the City’s Investment Portfolio was $75 million. Transfer of 7% of the “unassigned” funds to the T1 fund would allow the completion of all of the Phase 2 projects and the construction of new 4,000 ft2 African American Holistic Research Center (AAHRC).

Option 3. To get us to the preferred 6,000 ft2 AAHRC, in addition to Option 2, borrow an additional $3.7M from the Workers Compensation Fund (WC), à la the Premier Cru building purchase of $6.6M, and pay back the loan from the ten annual contributions from the GF capital equipment funds. This would allow all Phase 2 Projects to be completed and the construction of a 6,000 ft2 AAHRC. In FY 22, the WC fund revenues exceeded expenses by $3M, increasing its “cash and cash equivalents, as of June 30, 2022, to over $49M.

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Option 4. Assign the cost of connecting the proposed three public restrooms in the ROW at (a) Telegraph/Channing, (b) San Pablo/University, and (c) Alcatraz/Adeline to the City’s Sanitary Sewer Fund. These three projects are estimated to cost $1.35M of which 50% is due to connecting the public toilets to the City’s sewer lines. In 2022 the City’s Sanitary Sewer Fund had revenues of $25.5M and expenses of $16.7M, generating a surplus of $8.8M, which increased its fund balance to $35M. Since these public toilets will address a great scarcity of public toilets in Berkeley and the Sewer funds has ample monies, they should pay the $0.7M cost of connecting the three new public restrooms to the
sanitary sewer system. Implementing this policy of sharing the costs will facilitate the creation of more public restrooms.*
Option 4a. If the Sewer Fund is legally restricted from contributing to the cost of making a public restroom operational, then the City should consider using some of the in terest revenue from the Sewer
Fund’s large balance to fund these costs.

Option 5. Consider assigning the Hopkins Corridor Project T1 funds to help close the T1 Phase 2 funding gap, if these funds cannot be spent within the three‐year window specified by the bond covenants.

Since the Hopkins Corridor Project has been indefinitely postponed, it may not be possible to reserve assigned T1 funds, since such funds have to be spent within 3 years of the bond tranche issue date. If the Hopkins project is delayed sufficiently, such that T1 funds cannot be used, the surplus funds could be used to close the T1 Phase 2 funding gap.

Authors: Gordon Wozniak, Erin Diehm and Claudia Kawczynska Noted:
*We reached our conclusions after listening carefully to the public and other Commission commentary, that identified restrooms and play equipment as high priorities. As part of Phase 1 funding the City conducted a Citywide Restroom Study that helped to direct our selection of eight restrooms, three of which are located in the ROW requiring an additional expensive of sewer line hookups. Public restrooms are a vital community resource and a basic necessity.

Citywide Restroom Study: Berkeley Wash Assessment, Hyphae Design Laboratory (2020) https://berkeleyca.gov/sites/default/files/documents/Citywide%20Restroom%20Study%20and%20Executive%20Sum mary%20‐%202020‐10‐06%20‐%20Final.pdf
Public Restrooms a vital resource: "Why Are Public Restrooms Still So Rare", NY Times (March 22, 2023) https://www.nytimes.com/2023/03/22/business/public‐restrooms‐bathrooms‐us‐city.html

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Measure T1 Funding Gap
April 2023
Projects Requiring Additional Escalation
Category Project Name/Description Budgeted Leverages other funds Completed / Bidding /
Encumbered
In Design Apply
Escalation?
Addl 15%
Escalation
Possible to
Reduce
Scope?
Additional Funding
Required
Public-Facing Matching
Funds
Significant
Planning has
Occurred
Notes
Restrooms in the ROW San Pablo/University 450,000 x Y es 67,500 No 67,500 x x At 50% design, location being identified.

Restrooms in the ROW Alcatraz/Adeline 450,000 x Yes 67,500 No 67,500 x x At 50% design, location being identified.

Harrison Park - Restroom Renovation 450,000 x Yes 67,500 No 67,500 x x In conceptual design Ohlone Park - New Restroom 500,000 x Yes 75,000 No 75,000 x x At 35% design, location and model determined.

Waterfront Marina D and E Dock Replacement 595,000 $5.5M DBAW loan (MF); $1.5M State
earmark
x Yes 89,250 No 89,250 x x At 60% design.
1947 Center Street Improvements 1,800,000 x Yes 270,000 No 270,000 x x HVAC component is at 35% design; seismic
assessment to start by
June 2023.

Corporation Yard - Green Room Lockers, Bathroom, Training Room, Floor, Cabinets - Building B
1,700,000 x x Yes 255,000 No 255,000 x Design completed, project bidding.

Corporation Yard - Storage Room - Roof Repair Bldg H 600,000 x Yes 90,000 No 90,000 x At 50% design.

Totals 6,545,000$ 981,750$ Escalation Min Need Projects Requiring Additional Escalation and Unanticipated Costs Category Project Name/Description Budgeted Leverages other funds Completed / Bidding /
Encumbered
In Design Possible to
Reduce
Scope?
Additional Funding
Required
Public-Facing Matching Funds Significant
Planning has
Occurred
North Berkeley Senior Center 8,848,332 $363k PW CIP Fund FY23; $1.875M FEMA
grant
x N/A 350,000 x x x
African American Holistic Resource Center (4,000 sq ft)** 7,000,000 $1M federal earmark; $250k GF
x No 3,150,000 x x
African American Holistic Resource Center (6,000 sq ft)*** 7,000,000 $1M federal earmark; $250k GF
x No 6,850,000 x x
Parks Civic Center Park Upper Plaza Improvements - Turtle Island Monument
300,000 $596k Clean CA grant;
$750K Parks Tax; Art
Funding from Civic Arts
Fund
x No 880,000 x x x
4,380,000$
8,080,000$ ***Additional Funding Needed (AAHRC-6,000 sq ft) Total Funding Required
5,361,750$ Total Funding Needed (AAHRC-4,000 sq ft) 9,061,750$ Total Funding Needed (AAHRC-6,000 sq ft) Landmark Commission
approval received in March
2023
**Additional Funding Needed (AAHRC-4,000 sq ft)
Care and Shelter and
Non- Departmental
Citywide Facilities
Buildings in Parks
Facilities
Notes
Care and Shelter and
Non- Departmental
Citywide Facilities
This $350K is needed over
and above allocated
funding
4K sq ft building require
additional $3.15M to
lt6K sq ft building require
additional $6.85M to
ATTACHMENT 2

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Measure T1 Phase 2 Project Status Matrix
Updated:04/13/2023
Category Project Name/Description Budgeted Leverages other funds Completed / Bidding /
Encumbered
In Design Apply
Escalation?
Addl 15%
Escalation
Possible to
Reduce
Scope?
Additional
Funding
Required
Public-Facing Matching
Funds
Significant
Planning has
Occurred
Notes
MLK Jr. Youth Services Center 7,000,000 $1.2M FEMA grant; $750k federal earmark
x Yes 1,050,000 Yes - x x x Conceptual design complete, headed to ZAB in late Summer.

Additional funding available in
PRW CIP FY25.

South Berkeley Senior Center 3,000,000 $1.5M FEMA grant x Yes 450,000 Yes - x x Finalizing FEMA grant before design.

African American Holistic Resource Center ** 7,000,000 $1M federal earmark; $250k GF
x Yes 1,050,000 No See note* x x 4K and 6K sq ft building require additional $3.15M and $6.85M
to complete.

Restrooms in the ROW Telegraph/Channing 450,000 $260k UC settlement x No No - x x x Project bidding.

Restrooms in the ROW San Pablo/University 450,000 x Yes 67,500 No 67,500 x x At 50% design, location being identified.

Restrooms in the ROW Alcatraz/Adeline 450,000 x Yes 67,500 No 67,500 x x At 50% design, location being identified.

Camps Cazadero Dining Hall & ADA Improvements 400,000 $800k from nonprofit tenant
x No - - - - Required by lease.

Willard Clubhouse/Restroom Replacement 7,000,000 $500k of PRW CIP FY24; $175K Parks Tax
x Yes 1,050,000 No x x x Scope already reduced. ZAB
hearing scheduled in April.

Tom Bates Restroom, Community Space, Soccer Field
and PB Courts
2,900,000 $1.5M of PRW CIP
FY24; $175K Parks Tax
x Yes 435,000 Yes - x x x At 35% design. $3M Grant application pending for parking
lot and other amenities
Harrison Park - Restroom Renovation 450,000 x Yes 67,500 No 67,500 x x In conceptual design Ohlone Park - New Restroom 500,000 x Yes 75,000 No 75,000 x x At 35% design, location and model determined.

Ohlone (Milvia) Ages 2-5, 5-12, Garden Mural,
Exercise
500,000 $558k Parks Tax x Yes 75,000 No - - - - Contract awarded; gap covered by FY23 PRW CIP.

John Hinkel Lower Ages 2-12, picnic, parking 408,510 $565k Parks Tax + $11k GF CIP
x No - - - - Completed
Grove Park Ages play structures 2-5, 5-12 yrs old 700,000 $762k Parks Tax; $392k GF CIP; $503k Prop 68
x Yes 105,000 No - - - - Contract awarded; Gap covered by FY23 PRW CIP
Aquatic Park Tide Tubes Clean out, Phase 1B 206,490 x No - - - Completed Ohlone Park - Lighting 700,000 x Yes 105,000 Yes x x At 35% design. In public process.

Civic Center Park Upper Plaza Improvements - Turtle
Island Monument
300,000 $596k Clean CA grant;
$750K Parks Tax; Art
Funding from Civic Arts
Fund
x Yes 45,000 No See note* x x x LPC approval received March 2023. $880k needed to complete
additional scope.

Pools King Pool Tile and Plaster Replacement 350,000 $178k GF CIP x No - - - Completed Marina Timber Piling Replacements 1,200,000 $300k MF; $1.7M GF x Yes 180,000 Yes x x x Project bidding.

Marina D and E Dock Replacement 595,000 $5.5M DBAW loan (MF); $1.5M State
earmark
x Yes 89,250 No 89,250 x x At 60% design.

Marina K Dock Restroom Renovation 495,000 x Yes 74,250 No x In pre-design phase.

Cesar Chavez Park - New Restroom (on Spinnaker) 445,000 x Yes 66,750 No x In pre-design phase.

T1 Streets Contribution to Annual Street Paving
Improvements
6,750,000 x Yes 1,012,500 Yes - x x x At 65% design.

Bollard Conversion to Landscaping 150,000 Stormwater Fund, Parks Tax Fund
x Yes 22,500 Yes - x Not yet started-finding locations Sidewalks Sidewalks Maintenance & Safety Repairs 1,850,000 $250k (Multiple sources)
x No No - - - Project in construction.

Pathways Pathway Repairs/Improvements 200,000 $50k Annual Sidewalk Prg
x No 30, 000 N o x x x At 35% design.

Storm Storm Drain Imprv - Marin/Virginia/Spruce/Hinkel 600,000 x No - - - Completed 1947 Center Street Improvements 1,800,000 x Yes 270,000 No 270,000 x x HVAC component is at 35% design; seismic assessment to
start by June 2023.

Facilities
Care and Shelter and
Non- Departmental
Citywide Facilities
Buildings in Parks
Parks - Play
structures
Parks
Waterfront
Streets
ATTACHMENT 3

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Measure T1 Phase 2 Project Status Matrix
Updated:04/13/2023
Category Project Name/Description Budgeted Leverages other funds Completed / Bidding /
Encumbered
In Design Apply
Escalation?
Addl 15%
Escalation
Possible to
Reduce
Scope?
Additional
Funding
Required
Public-Facing Matching
Funds
Significant
Planning has
Occurred
Notes
Fire Station #2 1,536,765 FY24 PW ADA funds x Yes 217,500 No x x At 50% design. PW CIP funding will fill gap
Fire Station #6 1,213,235 FY24 PW ADA funds x Yes 181,985 No x x At 35% design. PW CIP funding will fill gap
Corporation Yard -Gate, Paving, Parking, Fuel Island 350,000 x Yes 52,500 Yes Not yet started.

Corporation Yard - Wash Station Compliance 200,000 x Yes 30,000 No Not yet started.

Corporation Yard - Green Room Lockers, Bathroom,
Training Room, Floor, Cabinets - Building B
1,700,000 x x Yes 255,000 No 255,000 x Design completed, project bidding.

Corporation Yard - Storage Room - Roof Repair Bldg H 600,000 x Yes 90,000 No 90,000 x At 50% design.

Telegraph Channing Garage Restroom 300,000 x No No x x At 90% Design. Additional funding not needed.

NBSC-Emergency Power Supply Solar Batteries 500,000 x No No Additional funding not needed.

Totals 53,250,000 981,750 Additional Funding Required Art 650,000 *Note:

Staffing / FESS 7,100,000 880,000 Gap - CC Turtle Island 350,000 Gap-NBSC
Total Phase 2 Budget 61,000,000 3,150,000
Gap-AAHRC 4,000 sq ft
replacement
5,361,750 Gap- Includes Escalation

COLOR KEY
● Projects that are completed or bidding or encumbered 880,000 Gap - CC Turtle Island ● Projects that need escalation to complete 350,000 Gap-NBSC

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PRW Capital Projects Not in Construction in Spring / Summer 2023 Project Status Capital Projects Construction
Grove Park 2-5 and 5-12 Playgrounds and Sport Field Now King Pool Tile, Electrical and Plaster Now
Ohlone 2-5, 5-12 Playgrounds, Mural Garden Now
Waterfront: Marina Finger Docks- Phase 4 Now
Waterfront: Marina O and K Electrical Replacement Now
Waterfront: Key Fob System Now
Aquatic Park Dock Access/Parking Lot Spring 2023
Aquatic Park – West Side Irrigation and Tree Planting Summer 2023 Aquatic Park – Street and Landscaping renovation: Addison- Dreamland Spring 2023 Echo Lake Camp ADA- Phase 1 Summer 2023
Solano- Peralta Play Equipment/ Furniture Summer 2023
Tuolumne Camp EV Charging Stations Spring 2023
Waterfront: Marina Pilling Replacements Summer 2023
Project Status Capital Projects Budget
Amount Spent
to date Feb 2023
Amount
Remaining
Anticipated
Construction
Public-
Facing
Public-
Serving
Other
Funding
Besides T1
Significant
Planning has
Occurred
African American Holistic Resource Center
T1- $7M
GF- $250K
Grant- $1M
T1- $48K
GF- $133K
Grant- $0
T1- $6.95M
GF- $117K
Grant- $1M
FY25 x x x
Cedar Rose 2-5, 5-12 Play Structures CIP- $400K
PT- $875K
CIP- $0
PT- $0
CIP- $400K
PT- $875K FY24 x x x
Civic Center Upper Plaza -Turtle Island Project Improvements T1- $300K Grant- $592K
T1- $84K
Grant- $0
T1- $216K
Grant- $592K FY24 xx x x
Harrison Park Restroom Renovation T1- $450K T1 $0 T1- $450K FY24 x x x MLK Jr. Youth Services Center/YAP Renovation
T1- $7M
Grant- $1.2M
Earmark- $750k
T1- $208K
Grants- $47K
Earmark- $0K
T1- $6.8M
Grants- $1.9M
Earmark- $750K
FY25 x x x x
Ohlone Park Lighting T1- $700k T1- $20K T1- $680k FY25 x x x Ohlone Park Restroom T1- $500k T1- $20K T1- $480k FY25 x x x Santa Fe ROW: Convert 4 blocks to New Park Grant- $5M Grant- $278K Grant- $4.7M FY25 x x x x Tom Bates Restroom, Soccer Field, PB Courts T1- $3.2M
CIP- $1.5M
T1- $390K
CIP- $0
T1- $2.8M
CIP- $1.5M FY24-FY25 x x x x
Waterfront: Cesar Chavez Park Restroom T1- $445K T1- $0 T1- $445K FY25 x x Waterfront: Cesar Chavez Perimeter Pathway SCC Grant- $2.1M SCC Grant- $0 SCC Grant- $2.1M FY26 x x x Waterfront: DE Dock Replacement
T1- $595K
MF- $5.5M
SCC Grant- $1.6M
T1- $222K
MF- $0
SCC Grant- $0
T1- $373K
MF- $5.5M
SCC Grant- $1.6M
FY25 x x x
Waterfront: K Dock Restroom Renovation T1- $495K T1- $0 T1- $495K FY25 x x Waterfront- Dredging Main Channel MF- $300K
SSC Grant- $7.4M
MF- $42K
SSC Grant- $0
MF- $258K
SSC Grant- $7.4M FY25 x x x x
Waterfront- South Cove West Parking Lot SCC Grant - $1M SCC Grant- $0 SCC Grant- $1M FY25 x x x x Willard Cl ubhouse and Restroom T1- $7M
CIP- $500K
T1- $535K
CIP- $0
T1- $6.46M
CIP- $500K FY24-FY25 x x x x
Aquatic Park Dreamland-2-12 Play Structure*** CIP $300k Codornices Park 2-5 and 5-12 Play Structures*** PT $200k Glendale - Laloma Park 2-5 and 5-12 Play Structures*** CIP $175k James Kenney Park Skate Area PT- $7K
CIP- $40K
PT- $1K
CIP- $17K
PT- $6K
CIP- $23K xx x x
John Hinkel Park Hut- Conceptual Design Only PT- $151K PT- $39K PT- $112K xx x x Waterfront: Shorebird Park 2-12 Play Structure*** CIP $200k Waterfront: Bike Park - Conceptual Design CIP- $100K CIP- $51K CIP- $49K xx x Waterfront- South Sailing Basin Dredging CIP- $350K CIP- $0 CIP- $350K xx Waterfront: Waterfront Specific Plan-BMASP CIP- $1.05MMF- $2K CIP- $678K MF-$2K CIP- $372K
MF- $0 xx x x
Waterfront: Pier-Water Transportation EIR/Design SCC Grant- $2.9M SCC Grant- $0 SCC Grant- $2.9M xx x *Funding Sources
Cat Res- Catastrophic Reserve
CIP- Capital Improvement Fund
GF- General Fund
MF- Marina Fund
PT- Parks Tax
SCC Grant- State Coast Conservancy Grant
T1- Measure T1, Phase 1 and 2
**in-kind contribution of $4M from Berkeley Commons Project. ***funding re-allocated because of increase in construction costs for existing projects.

Construction Projects in Design/Planning
Design/Planning Only Projects -Construction Not
Funded
Projects Bidding /Construction in Spring-Summer
2023
PT- $640K
Grant- $100K, Bayer- $260K
PT- $357K CIP- $55k
CIP- $200K, Camps Fund- $705K
GF- $50K, CIP- $80K
Cat Res- $350K
T1- $1.2M, CIP- $1.85M, MF- $575K
Budget*
Projects in Construction or have been awarded
T1- $1.125M, Grant- $503K, CIP- $603K
T1- $350K, CIP- $190K
T1- $500K, CIP- $391K
MF- $550K
CIP- $870K, MF- $883K
MF- $100K
ATTACHMENT 4

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PW Capital Projects Not in Construction in Spring / Summer 2023 Project Status Capital Projects
Anticipated
Construction Public-Facing
Public-
Serving
Matching
Funds
Significant
Planning has
Fire Station # Roof Upgrades now .X.X
Corp Yard Lift Pits- Building G CIP-$380,000 complete .X.X Fire Station #7 Fire Alarm CP Replacement CIP-$27,452 FY23 .X.X Old City Hall & Veteran's Building Leak Repair GF-$68,000 complete XX . X WBSC HVAC Evaluation complete .X.X
MHSC Roof Repair CIP-$44,744 FY24 .X.X
1947 Center Street Bottle Fill Stations CIP-$27,661 complete .X.X 2180 Milvia Carpet Replacement-CCB Phase 2 CIP-$185,283 complete .X.X Civic Center Door Card Readers complete .X.X
On Call HVAC Services CIP-$42,186 complete .X.X
Retaining Wall- 1322 Glendale Ave CIP-$436,510 now XX . X Street Rehab FY 2021
CIP-
$1,881,875
Meas BB-
$2,300.00
Meas F-
$155,000
Meas B-
$1,000,000
SB1-
$2,195,303 now
XXXX
Street Rehab FY 2022
CIP-
$2,130,920
Meas BB-
$2,700,000
Meas F-
$155,000
SB1-
$2,195,303 now
XXXX
Wildcat Canyon Emergency Repairs CIP-$148,919 XXXX
Street Rehab FY 2023
CIP-
$2,131,875
Meas BB-
$2,980,000
Meas F-
$155,000 CIP
(PAVING

FUNDS)-
$3,250,000
SB1-
$2,195,303 now
XXXX
FY20 Sidewalk Repair Program
CIP-$974,402
Meas F-
$220,200
Meas BB-
$1,279,800
SB1-$100,000
Private
Party-
$250,000 now
XXXX
Sidewalk Shaving- FY2020
CIP-
$1,253,571
Meas F-
$47,548
SB1-$399,800 Meas BB-
$420,000 now
XXXX
UUD Grizzly Peak #48 CIP-$274,911
Streetlight-
$47,342
GF-
$949,256 now XXXX
MLK Jr. Way Vision Zero Quick Build CIP-$385,140
Meas F-
$215,000
Streetlight-
$129000
Meas BB-
$567,000
Meas BB-
B&P-
$162,000 now
XXXX
University Ave Bus Stop Improvements CIP-$200,000 Capital Grants- State-$500,285 now
XXXX
Ashby/San Pablo Traffic Improvements CIP-$242,080 Meas F- $27,198 Meas BB-
$825,422 now
XXXX
7th/ Anthony Traffic Signal Project CIP-$82,559 Meas BB- $334,500 now
XXXX
Hopkins Street Corridor Project CIP-$150,000-
Tier 1 now XXXX
BerkDOT GF-$184,283 no
w .X.X
Dwight and California Intersection Improvements GF-$399,998 Meas BB- $348,478
CIP-
$50,000 now XXXX
Budget
Projects in Construction or have been awarded
CIP-$422,245
CIP-$16,698
CIP-$82,569

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PW Capital Projects Not in Construction in Spring / Summer 2023 Project Status Capital Projects
Anticipated
Construction Public-Facing
Public-
Serving
Matching
Funds
Significant
Planning has Budget
Woolsey Street and Eton Ave Traffic Calming CIP-$38,743 Meas B- $187,270 now XXXX
Ashby-Newbury Traffic Calming now XX . X
Southside Complete Streets
GF-$1,000,000
CIP- (paving
funds)
$4,987,860
Meas BB-
$1,082,800
UC-$2,254,548
Capital
Grants-Fed-
$9,335,000 now
XXXX
T1 PH2 Pathway Repairs GF-$99,897
CIP-$50,000 T1-$200,000 now XXXX
1947 Center Street T1-$1,800,000 now XXXX
PW Corp Yard Improvements-Green Building T1-$1,700,000 FY24 .X X X PW Corp Yard Improvements-Deferred Maintenance T1-$350,000 FY25 .X X X PW Corp Yard Improvements-Building H T1-$600,000 FY24 .X X X Storm Drain Improvements-Marin/Spruce T1-$600,000 now XXXX T1 PH2 Sidewalks Maintenance and Safety Repair no
w X X X X
NBSC Upgrades- Kitchen & Data FY24 XX . X
EV Charge Station FY 24 . XXX
Purchase of Electric Bikes FY 23 .X.X
Street Rehabilitation PCI Improvement Project-FY23
CIP-
$5,000,000 now
XX . X
Street Rehabilitation PCI Improvement Project-FY24 CIP- $9,100,000 Start of FY24 XX . X
Piedmont/Channing Traffic Circle UC Settlement-
$250,000 end of FY23 XX . X
T1 Phase 2--Hopkins Corridor Improvements T1-$6,750,000 Meas BB-
$2,160,000
Meas F-
$625,000
CIP (Tier 1)-
$150,000
CIP
(Paving
Funds)-
$2,977,000 TBD
XXXX
Oxford & Telegraph/Channing Garage Restroom
T1-$406,350 FY24
XXXX
Restrooms in the ROW
T1-$1,610,000 FY23-FY25
XXXX
PW Corp Yard Improvements-Wash Station T1-$200,000 FY24 .X X X Project Status Capital Projects Budget
Amount Spent
to date Feb 2023
Amount
Remaining
Anticipated
Construction Public-Facing
Public-
Serving
Matching
Funds
Significant
Planning has
Occurred
Retaining Wall & Storm Drain Repair
CIP- $335,000
Clean Storm-
$322,791
SB1- $290,000
CIP- $48,790
Clean Storm-
$30,000
SB1- $12,175
CIP- $286,210
Clean Storm-
$292,791
SB1- $277,825
FY24 XXXX
Cameras in Public Right of Way GF-$1,293,889 GF-$0.00 GF-$1,293,889 FY24 X X .

Bus Canopies/Bulbouts-Durant Complete Streets GF-$336,000 FY24 X X . .

Convert 62nd Street Between King Street, and Adeline Street into a cul de sac CIP-$300,000 FY24 X X . .

Semi-Divert traffic bollards at the intersection of Newbury Street and Ashby Street CIP-$50,000 FY24 X X . .

Implement State Law AB 43 for Reduced Speed Limits on High-Injury Commercial Corridor sCIP-$50,000 FY24 X X . .

Projects Bidding /Construction in Spring-Summer
2023
CIP-$202,683
CIP-$600,000 GF-$1,750,000
GF-$25,000
CIP-$50,000
T1-$1,850,000

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PW Capital Projects Not in Construction in Spring / Summer 2023 Project Status Capital Projects
Anticipated
Construction Public-Facing
Public-
Serving
Matching
Funds
Significant
Planning has Budget
ADA Transposition Plan Update Implementation - FY 23 Allocation CIP-$250,000 FY24 X X . X ADA Transposition Plan Update Implementation - FY 24 Allocation CIP-$500,000 FY25 X X . X Facilities Deferred Maintenance Investment (Increase in baseline) - FY 23 Allocation CIP-$250,000 FY24 X X . X Facilities Deferred Maintenance Investment (Increase in baseline) - FY 24 Allocation CIP-$500,000 FY25 X X . X Building Assessment CIP-$77,175 FY24 .X.X
Carpet Replacement CIP-$150,000 FY24 .X.X
Evidence Storage CIP-$36,750 FY24 .X.X
Public Safety Projects CIP-$150,000 FY24 .X.X
Roof Replacement CIP-$180,000 FY24 .X.X
Telegraph/Channing Elevator Upgrade CIP-$3,600,000
Off Street Parking-
$804,959 FY24 XXXX
EBCE Solar & Storage at Fire Station #3 CIP-$600,000 FY24-FY25 . X . X Old City Hall Temporary Fire Sprinklers CIP-$73,207 FY24 .X.X PSB Cooling Redundancy GF-$209,190 FY25 .X.X
STAIR Center ADA CIP-$412,640 FY24 XX . X
Civic Center Vision & Imp Plan Phase 2 GF-$200,000 FY23 XX . X Corp Yard Comprehensive Plan CIP-$447,344 FY24 .X.X
PSB Bicycle Bunker Roof Repair CIP-$179,962 FY24 .X.X
Street Rehab FY 2024 FY24 XXXX
Emergency Power Supply Solar Batteries T1-$400,000 FY25 .X X South Berkeley Senior Center T1-$3,000,000 FY25-26 XX X Fire Station #2 Improvements T1-$1,536,765 FY24-25 .X X Fire Station #6 Improvements T1-$1,213,235 FY24-25 .X X Bollard Conversion to Landscaping T1-$150,000 FY24 .X X Strawberry Creek Culverts Repairs FY24 XXXX
Projects in Design/Planning
CIP-$2,127,562 Meas BB-$2,980,000
Meas F-$155,000 SB1-$2,195,303
CIP-$250,000 Meas M-$926,720

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Other Capital Projects Not in Construction in Spring / Summer 2023 Project Status Capital Projects Budget
Amount Spent
to date Feb 2023
Amount
Remaining
Anticipated
Construction/
Implementation
Public-
Facing
Public-
Serving
Other Funding
Besides T1 and GF
Significant
Planning has
Occurred
Business Licensing System Replacement CIP - $500k $0 CIP - $500k XX Jail Control Panel Replacement CIP - $500k $0 CIP - $500k FY 2024 X X X Paperless Contract Workflow System CIP - $400k $0 CIP - $400k FY 2024 X X Property Tax Assessment System Replacement CIP - $450k $0 CIP - $450k XX Construction Projects in
Design/Planning

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Communications

All communications submitted to the City Council are
public record. Communications are not published directly to the City’s website. Copies of individual communications are available for viewing at the City Clerk Department and through Records Online.

City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900

Records Online
https://records.cityofberkeley.info/

To search for communications associated with a particular City Council meeting using Records Online:

1. Select Search Type = “Public – Communication Query (Keywords)”

2. From Date: Enter the date of the Council meeting

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6. Click the desired file in the Results column to view the document as a PDF

Berkeley City CouncilJune 13, 2023

Berkeley City Council
June 13, 2023