I’m Still Mad As Hell.

mad as hellLast week I shared a couple of issues I was having with how the City Attorney conducted themselves. Within moments of hitting the publish button two amazingly coincidental revelations were communicated to me.

Remarkably, after languishing on the bottom of the City Attorney’s in basket for over nine months, the Records Retention Schedule update miraculously was returned to the City Manager… done. Reviewed.

Now it can move on to Council for approval. Good news.

The other news, regarding amending the Brea Municipal Code, was unfortunately bad. Apparently, just two weeks ago, the Council reversed it’s majority support to revise the code to eliminate both unilateral dismissal by the appointing Council member and the inherent threat of violating the Constitutional rights of due process when dismissing Commissioner and Committee members.

Everything was on track since late January. The City Manager reconfirmed he was keeping pressure on the City Attorney… four times over five months. The goal: to remove portions of the BMC that violate the Constitutional right to due process of Commissioners and Committee members.

These coincidences are anything but.

This abrupt about face, I believe, is the result of heavy lobbying by the City Attorney not to “let that damned blogger tell us what to do.” After all, lawyers by their very nature are adversarial. They’re groomed to instantly take issue with every challenge. Their win-at-all-costs mentality causes them to spend far more time formulating their rebuttals than listening to the opposition.

I can just picture it. As soon as “Poking Holes In Markman & Flower” was published the behind-the-scenes battle to discredit and dismiss “that geezer on social media” went into overdrive.

The underlying theme to the City Attorney’s objection was expressed thus, “The odds this problem might ever occur again or that we would face due process litigation even in the distant future is so limited it’s a waste of time and energy to address Mr. Clark’s concerns.”

Really? Please explain to me when it is okay not to do the right thing because it’s too difficult or because the odds of getting caught are so slim.

When is due process not due process?

mad as hellNever. I believe the Constitutional protection of due process cannot be arbitrarily applied. The City Attorney also contends that due process only applies to city employees. If the founding fathers included a fair number of HR professionals, maybe that theory would hold water.

Well Mr. Markman, it doesn’t.

While there are due process issues associated with property rights, in this case retirement benefits, the violations I’m talking about have nothing to do with property.

I pointed out clearly to Council the procedural and substantive violations triggered by the BMC, specifically as it relates to prior notice, means of appeal and definition of duties. The BMC, in defining how a Commission or Committee member may be dismissed, does not include any provision for proper notice, a pathway for appeal nor does it define a single duty. No job description.

Here’s my challenge.

cityMy closing question to Mayor Hupp and MPT Parker, when we met on January 9, went something like this…

city“Are you telling me that, when I raised my hand and took the oath of office to support the Constitutions of the United States of America and the State of California (no mention of the Brea Municipal Code by the way) that in the same breath I gave up all rights they provide?”

I’m still waiting for an answer. I’d interpreted their willingness to task the City Attorney with drafting amendments confirmation of their rejection of the idea… that civically minded folks would even consider giving up their Constitutional rights.

I know more than a few Commissioners and Committee members who might not have been so quick to raise their hands… to volunteer their time and energy in community service. I suspect many other Breans, considering applying for an appointment, will reconsider.

We should care about process and the rule of law.

This is a request to Council to reject the adversarial nonsense coming from the City Attorney and to put the amendments recommended on the General Session agenda in the very near future. You knew it was the right thing to do before…

12 thoughts on “I’m Still Mad As Hell.

  1. I think you’ve got attorneys in general figured out and have nailed Markman and his crew to a tee. If someone hasn’t sent them the link already, they’re going to have one hell of a Monday.

    I am shocked that Council is so easily buffaloed by such a childish argument. You’re right, it’s never okay not to do the right thing. Didn’t they take the same oath? What part of “uphold the Constitution” do they not understand?

    Somehow I know you’re going to stay on top of this. With elections only a year away, they better pay attention to this and do the right thing.

    • Class… Yes, Markman is probably going to face another manic Monday. He gets no sympathy from me. He brings this upon himself. What he lacks in humility he more than makes up for in condescension.

      All too often, it seems, Council gobbles up whatever staff dishes out with little serious study or challenge. They’ll vehemently deny that I’m sure.

    • I’ve felt for some time that Markman & Company have overstayed their welcome, have outlived their usefulness. I am not alone in this, I’ve heard similar complaints from others in recent years. What sort of chokehold does Markman have on Council? They seem blind to the situation and incapable of conducting a simple review.

  2. Thanks Rick. As I’ve said before… there is no way the average Brean can keep up with what goes on behind closed, or for that matter open doors, down on Birch St. [at city hall]. I always think of the reminder that these are the same folks that have “mitigated” traffic on Carbon Canyon Rd. by allowing more houses to be built.

    • Chuck… The city’s lack of transparency and failure to communicate effectively with Breans is at the heart of our problems. The average Brean should find it simple to follow and understand how our community is managed and by whom.

  3. After rereading “Poking Holes In Markman & Flower” I chased down a copy of their memo to the City Manager. They were obviously targeting you, hiding behind their generic “social media” references.

    The only way a seasoned attorney could possibly believe their tactics would go unnoticed is if they thought we were all stupid as a bag of hammers. What arrogance.

    Now I’m reading on Nextdoor that Markman & Company may be complicit in the tiered water rates and Cal Domestic fiascos as well?

    What do they have to do to get fired? How many times will Council allow them to screw up and cost us millions in legal fees before they get handed the pink slip? Any way we could get a refund?

    • Mrs. Doubtful… (Funny!) Seems we likely share basic opinions of the legal profession, particularly those feeding at the public trough. I too believe Brea is long overdue for a review of City Attorney services. Maybe Council will wake up and follow through on that.

    • Challenges to the credibility of Markman and RGW have surfaced many times over the years. There has yet to be a Council with the courage to hold them accountable.

  4. It took me all of two seconds to Google this: “Substantive due process, in United States constitutional law, is a principle allowing courts to protect certain rights deemed fundamental from government interference, even where procedural protections are present or where those rights are not specifically mentioned elsewhere in the constitution.”

    Even to a novice it seems you have a strong case. No wonder the city attorney is cringing. Count me amongst those who would love to see him replaced. The sooner the better.

    What I don’t understand is why you haven’t sued their a** off? I remembered you describing the insensitive and blundering way Vargas removed you from the Planning Commission (“Vargas Being Vargas…”) I thought at the time you should have called the ACLU.

    There’s an old saying Rick, “Don’t get mad… get even.”

    • Tony… Yeah, Vargas couldn’t have bungled things any worse. Don’t think the thought didn’t occur to me at the time.

      Thankfully calmer heads prevailed and several close friends pointed out that the greater good would be lobbying to change the municipal code. So thats what I did, and until a few days ago I was of the impression that amendments to replace or refine the code were in process.

      Apparently there was some serious lying going on. Not just to me either. I’m hoping to get to the bottom of it soon and, with a little luck, we will see Council do the right thing and the changes will be made. Well, three out of five can make it happen.

      I don’t expect Vargas will get within a mile this for fear it will ruin his shot at getting reelected next fall. He would probably like it if this just faded away. It won’t if I have anything to do with it and his odds of getting reelected are already slim or none. This will likely just be another nail in the proverbial coffin.

      And Parker is in the awkward position of being on Council in ’92 when the suspect municipal code was added at the request of the City Manager and City Attorney. Pretty embarrassing that, 25 years later, he comes face-to-face with his role in all of this. Oddly, he’s never mentioned a word about this so I had to dig it up through public records requests.

    • Gotta say I agree with Tony, don’t get mad… get even.

      From your early days as Cultural Arts Commissioner and recent efforts as a Planning Commissioner plus six years dedicated to Brea Matters, you’ve put in almost twice the time in public service as Vargas. You’ve had much more positive impact on Brea than he has, that’s for sure.

      You must have been ask a time or two, why haven’t you run for Council?

      • Class… You’re kind, thanks. Yes, I’ve been asked often why I haven’t run… or if I would ever consider it. My answer has always been the same.

        First, at my age and condition, I really don’t need that level of stress. I can say my piece, hoping to motivate others to become more aware. Would I have liked to finish my term on Planning? Sure. But I’ve learned to play the hand I’m dealt.

        Second, I’d rather focus my energy finding and encouraging younger folks to step up and lead. Not much luck so far. Their lives are at such a focused and complicated time… building families and careers, plus they’re pretty damned discouraged by politics in general. Who can blame them?

        Originally said by Bill Comte, a building contractor, in 1962, “When I get up in the morning I read the obituaries. If I don’t see my name there, I make breakfast.” Not a bad plan.

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