Last week, the total spending on a ballot measure to extend the funding mechanism powering the North Bay’s new train for an additional 30 years ticked past $2 million.

In less than a month, spending on the ballot measure went through the roof, making it the most expensive election in the region’s history.

Measure I, a ballot measure up for consideration by voters in Sonoma and Marin counties on March 3, will extend the quarter cent sales tax funding the Sonoma-Marin Area Rail Transit (SMART) from 2029 until 2059.

On paper, SMART is a perfect vehicle to mend fences between business groups, environmentalists and public transit advocates.

Developers will get to build up downtown by taking advantage of state and local incentives, potentially weaning North Bay cities off of their car addiction and boosting cities’ revenues. The last SMART sales tax measure, passed in 2008, had the support of bicycling advocacy groups. Many labor unions have also backed the bond this time, presumably because construction projects will give workers local jobs.

But a sudden infusion of money into the “no” campaign and a lack of support from bicycle groups this time around have made the campaign far more uncertain than its backers may have expected when they placed it on the ballot last fall.

Cash Infusions

Since Jan. 7, Molly Gallaher Flater, a business executive at the Sonoma County-based Gallaher Homes and Poppy Bank, has contributed over $1 million into NotSoSMART.org, a campaign committee aiming to stop Measure I in its tracks.

In response, the Federated Indians of Graton Rancheria contributed $1 million to Stay Green, Keep SMART 2020, the committee supporting Measure I, on Jan. 29. Measure I is also backed with some money from business interests, labor unions, and SMART contractors. The Sonoma County Alliance, a business group, has endorsed the measure as have many elected officials from both counties.

Eric Lucan, the president of SMART’s board of directors and a supporter of Measure I, says that the extension will let the agency refinance hundreds of millions of dollars in debt over a longer period of time, allowing SMART to pay about $6 million per year instead of $18 million per year as it is now. SMART will reinvest that additional $12 million into maintaining service levels and various construction projects, Lucan says.

Since beginning service in August 2017, the train has carried 1.6 million passengers, according to SMART. In December, SMART opened a station in Larkspur, allowing riders to more easily travel to San Francisco.

If Measure I doesn’t pass, SMART will have some reckoning to do. The agency’s current projected budget assumes that Measure I will pass. If it doesn’t, the agency will have to reconsider its calculations.

“If the measure does not pass, there will need to be some difficult decisions that are made,” Lucan says. “We’d most likely be looking at service cuts and reducing train trips so that we could continue to make debt service payments and manage the budget.”

Some North Bay residents have long opposed the train, arguing that it is a waste of tax-payer funds that is largely unaccountable to the public. But SMART’s opponents never had too much money to oppose the alliance supporting the train.

The “no” campaign argues that SMART is behind schedule and over-budget on many of the goals it laid out during the Measure Q campaign in 2008, including completing the construction of the railroad. Mike Arnold, an economist and longtime critic of SMART who serves as treasurer of the NotSoSMART.org campaign committee, did not respond to a request for an interview.

Bicycle Concerns

The Sonoma County Bicycle Coalition and Marin County Bicycle Coalition are both taking no position on Measure I.

In separate announcements published last week, both groups stated that, although they backed Measure Q in 2008 and understand the need for additional public transportation options, they cannot support Measure I due to concerns about slow progress on a bike path running parallel to the tracks over the past ten years and a lack of a timeline for the completion of a bike path in Measure I.

Eris Weaver, the executive director of the Sonoma County Bicycle Coalition, said she is also concerned about a lack of transparency from the agency when she asked staffers questions about progress on the bike path.

An expenditure plan passed along with Measure Q promised to guide tax proceeds towards the construction of a “bicycle/pedestrian pathway from Cloverdale in Sonoma County to Larkspur in Marin County.”

But progress on the bicycle-pedestrian path has been slow. So far, about 24 miles of the path in both counties has been completed, according to SMART.

While she understands that SMART brought in less tax revenue than expected and cuts to bike projects were necessary, Weaver says that the cuts to the bike path were disproportionate.

Ultimately, both groups decided not to support or oppose Measure I in part due to a lack of a timeline to complete the bike paths. Weaver says she and her colleagues have had trouble getting information about expenditures on the bike path from SMART.

Then, while drafting Measure I, SMART’s board of directors turned down two of the bicyclist groups suggested changes.

“Neither the text of Measure I nor the appended Expenditure Plan include a timeline or guaranteed funding for the bicycle and pedestrian pathway; and language included in the 2008 plan that required SMART to prioritize any unanticipated revenue windfalls for construction of the pathway has been removed,” the Sonoma County Bicycle Coalition wrote in a post announcing their decision.

“We’re going to do everything that we can to complete that path,” Lucan said in response, arguing that refinancing SMART’s debt could allow the agency to put more money towards completing the paths, even though there isn’t a formal timeline for the completion of the paths.

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What is the definition of the word “artist?”

Should it be defined by artists themselves, or by politicians? What happens when theater companies are told their actors, designers and directors are “workers” and must be treated as such?

We’re about to find out.

A new state law that most Californians believed was designed to protect Uber and Lyft drivers from exploitation went into effect on New Year’s Day, bringing unexpected consequences and spreading confusion and fear across an array of industries. These “industries” include arts nonprofits and theater companies, along with the actors, musicians and designers who collaborate with them. As not-for-profit organizations struggle to comply with the law, many say the law’s strict requirements could mean the end of community theater as we know it.

In the North Bay, the law—Assembly Bill 5 (AB-5)—which has been in effect just over a month, is already changing the way theaters have operated for more than a century. With little warning, theaters are struggling to turn short-term, temporary artists into employees. Though some Marin County and Sonoma County theater artists say it’s about time that experienced actors were paid what they are worth, others point out that most small theater companies simply can’t survive the economic burden the law requires of them, insisting it will end up hurting the very people it was designed to help.

“The law was advertised as being directed at a certain industry when it was passed,” says Julie Baker of Californians for the Arts. “The scope was not something that people in the arts anticipated.”

A California-based advocacy and education organization formed to build public awareness around the value and impact of the arts and the creative sector, Californians For the Arts has been working with legislators to bring some clarity to the law, which has left many artists and nonprofits thoroughly confused—and in a very tight spot.

“The legislation was signed in 2019, and till then, nobody was sure what was going to be in it, and then suddenly, it’s going to be law on January 1,” Baker said. The timing was especially bad, she said, as the majority of the state’s theater companies had already set their seasons and fiscal year budgets by then.

Authored by San Diego Assemblywoman Lorena Gonzalez and signed into law last September by Gavin Newsom, AB-5—commonly called “The Gig-Worker Bill” as it worked its way through the legislature—establishes narrow new restrictions on how independent contractors can be defined.

At a town-hall meeting held on Thursday, Feb. 6 at Santa Rosa’s Luther Burbank Center for the Arts, artists and representatives from dozens of North Bay theater companies gathered to ask questions, express their concerns and openly call for more clarification as to what, exactly, the new law demands. Present were representatives of Marin County’s Novato Theater Company, Ross Valley Players and the Mountain Play, plus Sonoma County’s Main Stage West, 6th Street Playhouse, Spreckels Performing Arts Center, the Imaginists and Cinnabar Theater. Emotions in the room ran high for the duration of the meeting’s 90-minute runtime.

“Has the state even looked at the financial impact of the probable dissolution of all these small arts organizations?” asked Executive Director Diane Dragone, of Cinnabar Theater, during a session with nonprofit lawyers. “As written, we all know this law is never going to allow us to sustain our operations; not for a lot of us. What kind of impact will that have on the state, to lose so many artists and arts organizations? Who’s going to be left?”

The panel of experts, which included lawyers and professional arts advocates (including Baker), had little comfort to give, beyond a general admonition to follow the law and wait for the courts to work out the details.

Samantha Kimpel, creative coordinator for Creative Sonoma—a division of the Sonoma County Economic Development Board—set the tone early on.

“It is a challenging time,” Kimpel said. “We are here tonight because we’re all committed to working in the arts. We want to come together and try to get through this.”

The present crisis can be traced back to April 30, 2018, when the California Supreme Court issued the Dynamix Decision, which changed existing laws on how independent contractors are classified.

“Basically, it made it much more difficult to classify someone as an independent contractor,” Baker said. “To clarify what was intended, the court adopted an ABC test.”

Under the ABC test, a “worker” can be classified as an independent contractor only if the following three factors apply:

“The worker is free from the control and direction of the hiring company in connection with the performance of the work, both under the contract for the performance of the work and in fact.” In other words, the worker does not answer to any authority, or isn’t required to follow an authority’s directions or arrive and depart at any particular time. The “worker” is their own boss.

“The worker performs work that is outside the usual course of the hiring company’s business,” meaning if they are a juggling circus clown doing a show as entertainment during a tech company’s annual picnic, the clown is an independent contractor, not a temporary employee, since putting on juggling shows is not what that company does on a day-to-day basis.

The worker is “customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” In other words, if you are a juggling circus clown hired by a circus to entertain audiences who have come to see a circus, even for a day or a week, then you are not an independent contractor.

As written in the law, a hiring entity’s failure to prove any one of these prerequisites will be enough to establish that the worker is an included employee, not an excluded independent contractor.

“We’ve been speaking to legislators about how the arts work,” Baker said. “We’ve tried to explain that the arts don’t fit into that one-size-fits-all mold. AB-5 is intended to provide protections for people against exploitation. That’s not a bad thing. But for those in the arts who want to remain independent, it’s a painful thing, because it affects their own flexibility, it affects how they do their taxes and their expense deductions, it affects their intellectual property rights—because once you do something as an employee, the company owns whatever that piece of work is.”

According to Baker, all those hours spent with legislators did result in one change to the law: the inclusion of “fine arts” as an exemption alongside grant writers, marketing professionals, travel agents and others.

“‘Fine arts,’ that’s what we got,” Baker said, shrugging. “But what does that mean? There is no definition of ‘fine artist’ anywhere in the legislation. I used to own an art gallery; I think I know what a fine artist is. The definition is intentionally broad, Gonzalez has admitted. The author herself, if you follow her on Twitter, has said that ‘fine arts’ was intended to be that broad, but that in her mind it includes people like musicians.”

According to Baker, Assemblywoman Gonzalez had, just that day, tweeted an announcement that more clarity about what constitutes a “fine artist” would be coming in the future.

“So now we wait and see,” she said.

“Personally,” remarked Elly Lichenstein, Cinnabar’s artistic director, “I’m a bit livid that after spending my life as an artist, I’m now being told that I don’t know what an artist is, that I have to wait for a group of politicians to decide whether I’m an artist or not.”

“I’m just hoping that ‘fine artists’ includes lighting designers and sound designers for theaters,” said Santa Rosa sound technician Dough Faxon. “That’s an art, too. I work in community theater, for little 72-seat theaters. There are a lot of people who make a stage show happen, and there’s art all through it.”

Meanwhile, Baker pointed out that another bill, AB-1850, has been introduced by Gonzalez, while eight other pieces of legislation, most of those others designed to either repeal AB-5 or alter it, have also been introduced. Gonzalez’s new bill would reportedly “clarify” the AB-5 distinctions. Additionally, Gonzalez has announced that $20 million dollars of emergency funds will be made available to certain qualified organizations and individuals, to—in Baker’s words—”manage the transition to AB-5.”

She advised those in attendance not to become too hopeful the law will be repealed, or to hold their breaths waiting for actors and sound designers to be reclassified among the exempted “fine artists.” Several unions operating in the state, including Actors Equity—which is staunchly in favor of AB-5—have publicly stated they will mobilize against any effort to have actors and other theater artists added to the list of exempted parties.

“AB-5 is not getting repealed any time soon,” Baker said. “What we’re suggesting to you, in terms of our advocacy, is that if AB-5 is causing you to reduce programs, close programs and even potentially close your organization—and we are hearing these stories all around the state—then you need to tell your elected official. Send them a letter, there’s a template on our website. It matters. The more they hear from real people telling real stories, the harder it will be for them to pretend this is not having a major impact on the people who elect them.”

Longtime Bohemian-contributor Peter Byrne and Bohemian news-reporter Will Carruthers were awarded the Society of Journalists Northern California’s James Madison Freedom of Information Award for the first two parts of “The Power Brokers” series, published by the Bohemian last year.

The series scrutinized the actions of the Rebuild North Bay Foundation, a PG&E-funded nonprofit founded by Darius Anderson, a lobbyist and owner of the Santa Rosa Press Democrat and other North Bay newspapers.

“[Byrne and Carruthers’] reporting showed how the Rebuild North Bay Foundation had performed little or no relief work, instead funneling money to benefit a handful of prominent local business people,” an SPJ NorCal press release states.

“Byrne and Carruthers did this work in the face of fierce pressure in a community where the major sources of news are now owned by the same lobbyist who established the foundation they investigated,” the statement continues.

Find the first two parts of “The Power Brokers” series—Juiced, July 24, 2019 and Charity Case, Nov. 20, 2019—online.

The Fund for Investigative Journalism supports “The Power Brokers” series, which receives pro-bono legal assistance from attorneys at the Reporters Committee for Freedom of the Press.

Commission Urges Day Recognizing Indigenous People

On Jan. 28, the Sonoma County Commission for Human Rights unanimously endorsed a resolution to designate the second Monday in October as Indigenous Peoples Day.

The name change would signify a shift in historical consciousness, as institutions across the country reexamine the legacy of Christopher Columbus, a historical figure who has long been recognized as the first person to “discover” North America.

“Historians have largely agreed that Columbus did not ‘discover’ the Americas as indigenous people were already here, nor was he the first European to reach the ‘New World’,” the resolution states in part.

“Columbus brought devastation to the Americas, enslaving indigenous people of the region and decimating the population while opening the Americas up to Europe for the expansion of the slave trade at the expense of the indigenous population,” the resolution continues.

“[We took this vote] in solidarity with at least 11 states and 129 cities taking this essential step to honor Indigenous communities and their resiliency instead of the colonial oppression and genocide represented by Columbus Day,” Commission Chair Dmitra Smith said in a message announcing the vote.

Supporters of the resolution now plan to lobby the Sonoma County Board of Supervisors into formally changing the name of the second Monday of October on all of the county’s marketing materials, signs and calendars at the earliest possible date.