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

 

18 thoughts on “An Open Letter to Mayor Hupp, Members of Council and the People of Brea.

  1. I’ve never doubted your willingness and ability to do your homework. It sets this blog apart from so many. You’ve hit a new high with this one.

    Clearly Council will see through Markman’s diversionary tactics and, as you said, do the right thing. Good job spotting that pot hole.

  2. Looks like Vargas’s intent, whatever that might have been, backfired. I can’t believe that one Councilperson, without agreement from a majority of their peers or at least conferring with senior staff, can just fire someone like that.

    Your suggestions all make perfect sense. Which is probably all Council needs to turn a blind eye. I wish this was playing out during a general session so we could watch and have a permanent record.

    What’s the over/under on Vargas going ballistic? Or Markman for that matter?

    • Erik… I’m trying to make this less about Vargas and more about making things right. I’m sure there will be some pushback but really, the facts pretty squarely support my recommendations I think.

      Editing the wrong document and slipping this in on the study session as some sort of litmus test, in my opinion, is so markmanesque. He screwed up putting the unilateral dismissal into the BMC. Now he’s dealing with the untended consequences that came back and bit him in the ass.

  3. Rick,
    You and I have not agreed upon much in the past – but I support your quest in this regard, you were treated very unfairly by Vargas and the council.

    I appreciate your less combative and more pursuasive approach, you have made me a believer. Remember, I told you early on that getting within 10 feet of Vargas would not end well.

    BTW: A 70 year old on limited income is the most dangerous opponent — they have nothing to lose…

    • Ralph… we have certainly butted heads over the years, but always with respect. Your support at this time is deeply appreciated. Yes, Vargas blew every shred of political capital he’d acquired. Council, absent litigation, did what we all hoped they would do… reject the ridiculous nomination of Harris to replace me and appoint a new, politically neutral Commissioner. I have no quarrel with Council’s handling of the situation at the time.

      Today’s issues are a whole different matter. Language in the BMC is poised to violate someone’s Constitutional rights if the unilateral dismissal clause is envoked again. The City Attorney appears mission bound to reject any attempt to overturn what he snuck into the BMC 25 years ago. He and the unilateral dismissal need to go. Period.

      And yes, a codger without a pot to piss in is dangerous. I’m reminded of the classic admonition, “Never poke a tiger with a short stick.”

  4. How does it make any sense an appointee is approved by Council but can be dismissed by a single councilperson? Why should the collective will of council allowed be thwarted by an individual? Shocking to learn many California cities have incorporated this flaw in their Code. It’s time for Brea to take leadership correcting this problem!

    • George… You’re right, besides the Constitutional issues it triggers, unilateral dismissal flies in the face of common sense. City policy demands that a minimum of two Council members (Mayor and MPT) are required to put an item on the agenda but one Council member can fire a Commissioner? The contradiction is beyond ironic.

      My research indicates that a minimum of 80% of California cities have a unilateral dismissal provision in their municipal code. Likely all placed there decades ago by overzealous city attorneys. Brea has a remarkable opportunity to show insight and leadership, the question is… will Council step up and do it?

  5. Seems like a no brainier to fix. Politicians are always referring to taking the high road and transparency. I know most of it is just rhetoric, but I still like to hear them say it.

    You’ve uncovered an age old escape clause for the council they should just appreciate all the years that they have taken advantage of it and make things right.

    • Don… the campaign slogans invoking accountability and transparency have come home to roost. Council can reverse this “age old” mistake by simply telling the City Attorney to come back in two weeks with resolution incorporating my recommendations… but will they?

    • Politicians use a lot of buzzwords and make a lot of promises when they’re running for office then, once they’re in, they wobble on every issue, refuse to commit anything to writing and never return a phone call.

      This due process thing is serious stuff. They all took an oath of office to “uphold the Constitution” and we’ll see tomorrow night if they really meant it.

      • Class… this is serious. Council needs to take a firm stand. Breans should not be held hostage to one man’s whims… and that applies to Vargas and Markman.

  6. Markman is very clever and persuasive. Hopefully a majority of the council will see through his bs and make the right decision on this issue. Keep up the fight!

    • Terry… Markman’s days behind the curtain pulling the levers are limited. I still have a good bit of fight left in me, thanks.

  7. If Vargas has half a brain he’ll call in sick tomorrow. Nothing he could say or do will make what he did acceptable. Many of us believe the Hines project would have progressed much differently and the flagrant nonsense by planning staff would have been brought to a screeching halt if you had still been on the Commission.

    The only good news is that the flaws in the municipal code have been exposed and Council can fix them tomorrow.

    • Ruth… Oh I’m sure wild horses couldn’t keep Vargas away from that meeting, a confirmation that he lacks half a brain some might say.

  8. “If you’re not outraged, you’re not paying attention.” – Paul Sweeney 2006

    “If you’re not paying attention, you’re getting exactly the government you deserve.” – Me 2017

    As long as this is Rick, I made myself read it twice. Your anger and frustration has been pretty clear in earlier blogs on this subject. Your restraint here is admirable. Your comment above, referring to Vargas and Markman holding us hostage, is right on the money.

    No one has ever been able to restrain Vargas, least of all himself. O’Donnell seemed to keep a tight rein on Markman, Gallardo not so much. I hope council recognizes this and takes control back into their own hands.

    • Elizabeth… If readership stats over the last 48 hours (plus my email, phone and texts) are an indication, a lot of folks are paying attention and have strong feelings on this. Outraged pretty much sums up most of them. I appreciate the subtle insights in your comment.

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