Vargas: Liar Liar… Pants On Fire!

On Tuesday, September 5, Council finally had an opportunity to address the Constitutional Due Process issues in the Brea Municipal Code but, thanks to inadequate staff input and a major distraction from Council member Vargas, they were thwarted.

After a year of sidestepping the issue, City Manager Gallardo and City Attorney Markman continued trying to wriggling out of honestly facing the music by submitting conflicting statements to launch Council’s discussion.

Gallardo said he believed the Brea Municipal Code and Code of Conduct were in conflict (not the root issue), Markman disagreed completely… denying that any contradiction existed and doubling down on his assertion that there was no threat of Constitutional violation because termination of Commissioners and Committee members is made without cause.

The greatest roadblock to Council having an intelligent discussion was the almost incoherent ranting by Council member Vargas. He not only derailed the discussion, he added to his list of “causes” for dismissal which crushed Markman’s position. In addition, claims made by Vargas were fabrications… figments of his imagination.

Everyone in the room must have recognized that, especially Vargas. Assuming he hadn’t forgotten the truth, he must have known just how far he stretched it.

Ultimately, thanks to Council’s unwillingness to be intimidated and the Mayor’s taking control of the discussion, the decision was to continue the item until staff could provide additional information. Hopefully staff will also make some attempt to get on the same page with each other.

I’ll leave follow-up on the real issues until they hit Council’s agenda again and turn my attention now to poking holes in the spurious allegations and remarks being tossed about by Mr. Vargas.

The Letter of Dismissal

I’ll work my way through the “causes” cited by Vargas in the letter.

  1. “… our initial agreement was a two year assignment” – No such agreement was ever made. No member of Council has the authority to make such an agreement and, if they were authorized, the BMC would state so and the “deal” would obviously have to be disclosed when the nomination is made. Never happened.
  2. “… allow you some closure from past experiences as a Commissioner, unfortunately I am not in a position to continue the redemption any further” – A complete non sequitur. My seven year history as a Cultural Arts Commissioner, as Chair of this Commission and it’s representative on Art in Public Places and the Senior Citizen Advisory Board is extolled at length in the commendation I received from Mayor Roy Moore in 2011. I needed redemption for nothing.
  3. “… (for) 3 months, I have attempted to communicate with you on numerous occasions via text and phone calls” – Hogwash. Once or twice a month Vargas would call me as he headed home from work at Port Hueneme and we would talk about various matters until he typically said, “Well Clark, you got me home safe and sound again.”

The last time we spoke we discussed his plans to put Term Limits on the ballot as a proposition. He refused to consider discussing his plans with Council. I told him it was a stupid idea, that it was an obvious attack aimed solely at Council member Simonoff. Finally, he agreed to drop the idea and the discussion ended.

Four days later the City Council meeting erupted in heated, angry exchanges with Vargas when he announced his intention to collect signatures via a third party contractor for a ballot initiative on Term Limits. When Vargas called me after the meeting I was too angry to take the call and let it go to voicemail. I did the same with the other half dozen attempts Vargas made over the next hour or so.

He texted me once the next day asking why I was dodging his calls. I texted back that I hated getting lied to and would need a few days to let my anger subside. I never heard from him again until I received the letter of dismissal… 36 hours after almost everyone in Brea seemed to get it. Must have been a massive BCC list.

  1. “…your reluctance to keep me informed of pending issues does not allow me to provide effective service as a council member.” – So, Breans have been under represented for almost a year now. Good to know. Don’t cross your fingers for the Mayor Pro Tem’s seat and we all know what to do when the 2018 elections come around.

During the first year of Vargas’ current term, as I would come across articles online relevant to current or impending city matters, I would email a link to Vargas… who seemed to have neither the time nor skills to do his own research. I did this maybe once or twice a week. I was surprised to hear he was unable to “provide effective service” without my help.

Fast Forward Almost a Year.

I mentioned the rants Vargas inflicted on everyone at last week’s study session, that they were laced with the same sort of groundless statements as are found in the dismissal letter.

  1. Only after repeated badgering by members of Council and City Staff did he feel forced to dismiss me. – Vargas was immediately challenged on this by the Mayor as being complete nonsense. Never happened.
  2. Vargas claimed to have “cleared it with” Gallardo and Markman before he sent the dismissal letter… a weak attempt to imply their approval. Gallardo and Markman preserved their “plausible deniability” by answering Vargas’ email inquiry by phone. A common practice down at city hall. However, Gallardo told me later that he attempted to talk Vargas out of the dismissal but failed and that Markman merely confirmed the appropriate BMC reference.
  3. Vargas said he discussed health issues with me, asking me to resign, and was compelled to terminate me because I would not resign. A year ago my health was not an issue, we never had such a conversation. This is total b*llsh*t.
  4. Vargas stated that he appointed me because of my experience with affordable housing while working for Quaker City Bank. (No Steve, that was Ron Garcia, your first appointment to the Planning Commission in 1998.) We never discussed housing of any type prior to or following my appointment to the Planning Commission. I have never worked for Quaker City Bank, or any bank, but did handle branding and advertising for Landmark Bank in La Habra when it launched in 1979… 38 years ago.
  5. Vargas protested my use of the California Public Records Act (CPRA) to obtain information leading to my “due process” probe and aggressively demanded “cost accounting” from the City Clerk, City Manager, City Attorney and Director of Development for the staff time required to respond to my inquiries. He was summarily put in his place by Council member Simonoff who reminded him that it was wrong to chastise the public for the cost of complying with a public records request.
  6. Vargas accused Council of wasting time on an issue that only a “blogger” cared about. Really? Council’s oath of office swears to uphold State and Federal Constitutions! If there is even the slightest possibility that the BMC is in conflict they are bound to investigate regardless of where the challenge came from.

Council does what’s right.

Given all that occurred last Tuesday, Council did what was right. I trusted that they would and they didn’t let me down. They continued the item and tasked staff with bringing them additional relevant information.

This is far from over folks and no loose canon is going to dissuade me from pursuing the truth or bully Council into sweeping this under the rug.

vargas liar

An Open Letter to Mayor Hupp, Members of Council and the People of Brea.

September 3, 2017

To: Mayor Cecilia Hupp

CC: Mayor Pro Tem Glenn Parker, Council members Marty Simonoff, Christine Marick, Steve Vargas, City Manager Bill Gallardo, City Attorney James Markman

Subject: Council Agenda Item 3 – Review Council Code of Conduct and Brea Municipal Code Regarding Removal of Commissioner

Mayor and Members of Council,

From the Staff Report’s first sentence under Background/Discussion, “It was brought to our attention there is a slight difference…” it was immediately obvious that the source of the information — ME — was being buried.

The fact that the report offers you and Council no options beyond doing nothing or modifying the Code of Conduct is a complete red herring designed to distract you from the information I originally provided regarding Constitutional violations of due process rights brought about by the Brea Municipal Code (BMC) Section 2.16.050.

It has been widely known by you, amongst Council and others that I brought the due process issues to your attention via the City Manager in November 2016. My request to meet with you, Mayor Pro Tem Parker and City Manager Gallardo was put off until January 9 due to heavy “holiday” commitments.

At that January meeting I clearly laid out the nature of the due process violations, both procedural and substantive. (For those encountering this issue for the first time I will clarify this in a moment.)

A few days later I was told by the City Manager that, after polling other Council members, the matter would be referred to the City Attorney to prepare amendments to the BMC as were necessary to remove the threat of further due process violations.

Procedural Due Process Violations.

The intent of procedural due process is to ensure that the government acts in a way that is fair and reasonable when making decisions that affect private individuals and that its actions are not arbitrary. Due process requires that an individual be given adequate notice and an opportunity for a hearing before an impartial authority.

  1. Brea Municipal Code Section 2.16.050 makes no provision for notice. Per email from City Attorney Markman (09/29/16) “No code section requires a specified type or level of notice to be provided to the removed commissioner.”
  2. Brea Municipal Code Section 2.16.050 makes no provision for hearing by a neutral, impartial body with the authority to sustain or revoke the dismissal of a Commissioner or Committee member.

Substantive Due Process Violations.

The Due Process Clause not only requires basic procedural rights, but it also protects substantive rights. Substantive due process is intended to protect the public from arbitrary governmental action, regardless of the procedures used to implement it. 

Additionally, a law is unconstitutionally vague if the statute fails to provide adequate notice of what conduct is prohibited. A regulation must be sufficiently clear to warn a party regarding what is expected of them, such that an ordinary person exercising common sense is able to understand and comply, before they can be sanctioned for failure to comply with the required regulation.

  1. Brea Municipal Code Section 2.16.050 offers no clear regulatory guidelines of what constitutes required duties and responsibilities or prohibited conduct sufficient to warrant dismissal.
  2. Brea Municipal Code Section 2.16.050 allows a commission member to be removed by unilateral declaration by the nominating Council member which opens the door to both arbitrary and discriminatory enforcement.

I feel it is important to remind you that while individual members of Council nominate candidates for Commission and Committee appointments… it is only with a majority of the full Council’s approval that the appointments are made official.

Guidelines/Policy vs. The Law (BMC).

The Council Code of Conduct (internal policy) was first adopted at a study session on October 1, 2002 and subsequently updated as Consent Calendar items (no discussion) on April 5, 2005 and November 18, 2014. As a policy document it does not carry the weight or authority of codified law.

On the other hand, the the BMC was originally codified (made law) on January 18, 1965 and the amendment to include the current provisions for dismissal of Commissioners and Committee members was added on December 15, 1992.

Please note that, though Mayor Pro Tem Parker was on Council in 1992 and voted in favor of the amendments, throughout this entire process he has never once volunteered an explanation, anecdotal or otherwise, of how and why things transpired as they did.

When is a “law” not a law?

When it is a Code of Conduct routinely updated without opportunity for debate by Council — as a Consent Item.

Updating the Council Code of Conduct as a “test” to determine if Council has any interest in amending the actual law (BMC) is ludicrous. The Staff Report is little more than a specious ploy designed to avoid addressing the original due process issues triggered by the BMC.

The long and winding road.

Following the January 9 meeting I was told that the City Attorney was instructed to prepare whatever amendments to the BMC as were necessary to remove the threat of further due process violations. There was an unmistakable, if unspoken, consensus that the due process issues posed sufficient problems as to warrant amending the BMC.

I checked back with the City Manager every couple of weeks to inquire about progress and, from January until July I was repeatedly given the same response. “Sorry, Rick, but Mr. Markman apologizes for the delay and will have this ready for Council within the next few weeks.” Never happened.

Suddenly, in August, I got a different answer, “Council is no longer interested in pursuing this.” When I pressed for “why” I was told that too much time had passed and the City Attorney had “lobbied” to drop the matter.

It was at that time I discovered the contradictions between the BMC and the Council Code of Conduct. When I brought that revelation to everyone’s attention… suddenly the matter was reignited.

Let me add a little perspective.

After failing to take any action on a request from the City Clerk, for almost a year, to review an important and long overdue update of the Records Retention Schedule, it took me rattling the cage when Planning Staff destroyed documents (in the Hines project) to get the review completed. Time lapse: 11 months.

When given clear instructions to resolve the due process issues generated by language within the BMC, the City Attorney drug his feet for six months. Only when the Code of Conduct contradiction complicated things was any attempt made to bring the matter to a close — sadly, with a bogus attempt to further hinder a legitimate legal solution. Time lapse: 9 months.

After reading “Corruptions Partner Is Our Own Indifference.” (Brea Matters – April 7, 2017) and without instruction from anyone, on April 13, City Attorneys Markman & Flower sent an unsolicited and widely circulated memorandum to the City Manager. They simultaneously issued a broad release via social media (Facebook, Nextdoor) refuting statements made in the blog. Yup, that’s right, without being officially tasked to do so, they knocked out the legal research, composition, revisions and distribution in just seven days.

I’ll leave it to you and members of Council to decide if there is any hidden agenda here. From where I sit, nothing is hidden very well. The City Attorney comes across as being perpetually irritated that I challenge him.

The City Attorney’s underlying defense.

Please come to whatever conclusion you feel best fits the facts at hand, but this smells a lot like the Four Dog Defense.

  1. My dog doesn’t bite. (The BMC is fine as it is.)
  2. My dog didn’t bite you. (Your rights were not violated.)
  3. My dog bit you but it didn’t hurt. (We violated your rights, but so what?)
  4. My dog bit you but it isn’t my fault. (We’ll need some time to look into this.)

Its time  to stop playing silly little bureaucratic games with this. I came to you in good faith with the express intent of “keeping this within the family” rather than suing the city. It appears that the City Attorney took note of my altruism and is banking on the fact that a 70 year old man on a very limited fixed income poses no legal threat. Unpardonable.

What now?

When you and the City Manager asked me, “What would you like to see happen?” my response was simple. “I’ve made you aware of a big pothole in the middle of Civic Center Drive, it’s not my job to fix it.”

The City Attorney’s creative solution is to plant trees in the medians on Birch Street during the peak of the worst drought in California history. Brilliant.

Okay… here are my suggestions:

  1. Edit the Council Code of Conduct to say,Regarding appointment and/or dismissal of Commissioners and Committee members, see: BMC Section 2.16.050.
  2. Remove the provision within the BMC for a single member of Council to unilaterally dismiss a Commissioner or Committee member. We have discussed the backstory of how this found it’s way into the BMC and what an abominable series of embarrassing and unprofessional events followed the one time in Brea’s history it was employed.
  3. Incorporate the new language from the Code of Conduct suggested by the City Attorney,Inappropriate behavior by a commission, committee or board member should be noted to the Mayor, and the Mayor should counsel the offending member. If inappropriate behavior continues, the Mayor should bring the situation to the attention of the Council and the individual may be subject to removal from the commission, committee or board.
  4. Further amend BMC Section 2.16.050 to include a clear statement of the Duties and Responsibilities of Commissioners and Committee members so there is no confusion as to what might constitute inappropriate behavior.

Once again I will reinforce the absolute necessity of removing the “unilateral dismissal” language from the BMC lest another loose canon goes off in the night bringing unprecedented harm and public embarrassment to the Council and the people you’ve been elected to serve.

The City Manager at the time (Tim O’Donnell) and the City Attorney (James Markman) were responsible for adding it to the BMC, without initial inquiry or instruction from Council 25 years ago. Allowing this to remain in the BMC sends a threatening message to anyone considering volunteering their time as a Commissioner or Committee member.

Why I know you’ll do the right thing.

It’s pretty straightforward really. I know a majority of you are very smart… and you know that I am right.

Regards.

Rick Clark

Markman & Flower