Malfeasance: Brea’s Status Quo?

In the weeks ahead, breaking news regarding several cases of fiscal misconduct will be finding their way into public discussion. The egregious nature of several will likely lead to widespread use of the term malfeasance.

Let’s take caution in our choice of words to be certain we characterize people and their actions clearly and fairly. An exact definition of malfeasance (in office) is difficult: there is no single legal consensus definition.

Malfeasance is generally defined as “a wrongful act which the actor has no legal right to do.” Many courts find malfeasance (in office) where there is “ignorance, inattention, or malice”, which implies no intent or knowledge is required.

Much of what we’ll hear, however, will probably trigger accusations of malfeasance.

Truth: the final frontier.

I’ve invested literally hundreds of hours pouring over a vast array of communications, agendas, minutes, resolutions, staff and consultant’s reports, spreadsheets and financial records from both the city and from Orange County.

I’m not alone. Several others, equally curious about Brea’s past fiscal practices and current fiscal policies, have invested similar time and energy… and come to similar conclusions.

What has been common practice in the past has cost Brea the loss of significant assets and revenue sources and has placed an undue burden upon tax payers to meet unconscionably large financial obligations well into the future.

There is clear evidence, going back several decades, of both ignorance and inattention to detail contributing to the failure of Council members to exercise the full due diligence their office and those who’ve elected them demand.

Malfeasance… I believe so. Malice… not so much. Let me explain.

I’ll point the finger…

Repeatedly it has been found that Council member’s information packets come up well short of including a full set of facts. Consistently, the missing information helps lead Council to forgone conclusions staff has predetermined are preferable.

Again and again it appears that staff has usurped the visionary role and authority of Council. While the evidence of malfeasance is frighteningly clear, at least to me and those digging into these matters, a couple of critical questions remain unanswered.

Obviously staff has the means and opportunity to play fast and loose with Brea’s financial future. What’s missing is motive. Why would our city staff, highly educated… the best and the brightest, do what they’ve done and to what end?

What’s next?

We may never find any answer to why and what for but we can cast a bright light upon this nightmare in the hopes that today’s Council will find the courage to challenge history and change the future.

malfeasance

Unilateral What?

Unilateral dismissal, and it’s been a scrofulous canker festering within the Brea Municipal Code for 25 years.

A majority of Council members turned city hall into a complete circus last night. The only ones interested in honestly addressing the real issues on this matter were Mayor Hupp and City Attorney Jim Markman.

If you have the stomach to watch this travesty go to THIS LINK to view the streaming video. Warning: this item is 40+ minutes in length and the results are zero.

Can’t tell the players without a program.

Hupp.

unilateralAs soon as the item was opened for discussion Mayor Hupp identified the key issue, the unilateral dismissal provision within the municipal code… pointing out that removing it and editing the Council Code of Conduct to little more than a reprise of the amendment to the municipal code would solve 99% of the issues at hand.

From there, as I am about to clarify, everything went to hell in a hand basket. Mayor Hupp’s thoughtful and unchallengeable identification of the real issue and a relatively simple means of addressing it got lost in a blizzard of disconnected hyperbole rooted more in opinion than fact.

Parker.

unilateralMPT Parker, as is becoming all too common, became bogged down in his own rhetoric and, after the City Attorney poked holes in his “solution,” Parker became withdrawn and contributed little of value.

Once again I was surprised that MPT Parker made no mention of being amongst the Council members unanimously approving unilateral dismissal in 1992, along with Mayor Bernie Dunlap and Council members Nelson, Perry and Wiser.

Marick.

unilateralCouncil member Marick, as she has done on many occasions, tried to sabotage any meaningful progress by layering on additional demands beyond what was called for on the agenda or in the staff report.

Though she admitted several times, “I know this isn’t on the agenda…” she persisted to insist the topic be broadened and brought back later.

She pulled the same garbage when she and then Mayor Murdock blindsided Council with a list of ridiculous extra demands upon the Madrona development.

Also, when the Central Park Brea development CFD was on the agenda for approval she voiced a shared concern with Council members Moore and Simonoff about double taxation and the lack of a sunset clause to cover assets with fixed costs.

Only when City Attorney Markman assured her that a full review of all CFD’s and Maintenance & Lighting Districts (M&LD) could be conducted anytime Council chose did she vote to approve the CFD, allowing the project to move forward.

Nothing has happened since on either matter. “Revisiting the issue at a later date” has become a euphemism for sweeping things under the rug.

Simonoff.

unilateralCouncil member Simonoff’s only contribution was to challenge Council member Marick’s obvious deflection. After 20+ years on Council and 5 years working with Ms. Marick, I would have thought he realized what his interjection would cause.

Each time he challenged Ms. Marick she emphatically doubled down on her objections. Seriously, Council member Simonoff should abandon the countless “cityspeak” cliché’s that have become his go to phrases when he has nothing of significance to offer.

By the way Mr. Simonoff, your challenge that employing the unilateral dismissal has only happened once in Brea’s 100 year history is quite a stretch since it wasn’t part of the municipal code until 1992. That’s 25 years Mr. Simonoff.

The manner in which Council member Vargas employed it, however, will likely remain a blemish on Brea history for 100 years.

Lets just say that Council member Simonoff could have played a much more material role in reaching a workable conclusion if he would set aside his perpetual concern with how he’s being perceived by others.

Vargas.

unilateralIt was Council member Vargas’ unprecedented use of the unilateral dismissal provision in the BMC on September 26, 2016 that triggered this year long process. It’s not surprising he sat, sulked and rolled his eyes as everyone else offered their two cents.

Finally, when Mayor Hupp made a motion to eliminate the unilateral dismissal from the BMC, he seconded the motion… not because he really supported the idea but because he though it might soften the blow using it will have if he runs for a third term

He withdrew his second later when he realized what it was. What a surprise that, like a petulant child, he decided to take his ball and go home – letting the motion die for lack of a second.

He punctuated his withdrawal by slinging angry accusations at fellow Council members for wasting time and expense on a meaningless matter.

Markman.

mad as hellOkay… time for me to eat a little crow.

For as harsh as I’ve been towards City Attorney Markman, he along with Mayor Hupp, were the only two who clearly understood the real issues and were focused on finding the most sensible and effective solutions to resolve them.

Mr. Markman did mention, “The municipal code is a without cause at will removal by a majority of Council or the person who appoints” – au contraire Mr. Markman… by the person who nominates. Appointments are ratified by a Council majority.

No single member of Council has more authority than their peers anywhere else in the BMC. All are members in equal standing. The unilateral dismissal creates an unjustifiable advantage to one member.

Markman also drove home the rationale for eliminating any attempt to fix the problem by editing the Code of Conduct. He pointed out that it provided for dismissal done for cause, a real slippery slope.

He also pointed out, “It’s (the Code of Conduct) overridden by a code section (BMC) that says something else.”

Bingo.

The Code of Conduct has been a smokescreen from the moment I brought it’s contradicting language to the City Manager’s attention – five months after raising the issues with the BMC.

The Code of Conduct is a policy statement subject to modification at any time, in a study session, beyond the scrutiny of most Breans and is not law.

Let me say that again. The Council Code of Conduct is NOT law! The Brea Municipal Code IS law and overrides all lesser documents.

Thank you Mr. Markman for attempting to nudge this unruly body towards an honest assessment of the real issues.

Well, now what?

Thanks to Council member Marick’s diversionary tactics and Council’s inability to muster itself into some unified approach to a matter that’s been on or near the table since last December… it’s fallen into the black hole of “let’s circle back to this later.”

What a total crock.

Final thoughts.

Everyone kept harping about how important it is to protect Commissioners and Committee members from the possibility of any public embarrassment… why it’s important to make their execution swift, silent and out of the public view.

Thanks to the horribly inept unilateral dismissal conducted by Council member Vargas last year and the protracted process I’ve had to wrestle with ever since to seek some sort of reasonable solution… my “execution” has been anything but swift, silent or out of the public view.

Nice job folks. Quit fooling yourself and get about the business of governing instead of playing at local politics.

 

Vargas Being Vargas… Gives Brea A Black Eye.

vargas_300Leave it to Steve Vargas to completely botch something as simple as initiating a personnel change.

Wednesday, September 28 started like any other day, then I received a simple text, “Condolences.”

When I responded, “Why?” a friend sent me a copy of a letter from Steve Vargas firing me from the Planning Commission.

By the end of the day I’d received calls or emails from dozens of well wishers, had two lengthy phone conversations with City Manager Bill Gallardo… but no “official” copy of the letter from Mr. Vargas which didn’t arrive until the next morning. So much for common courtesy.

markman_300_dThe next 48 hours were a blizzard of texts, phone calls and emails. The City Attorney, Jim Markman weighed in citing city code and taking the obligatory neutral position. Can’t blame him really, he has five bosses and one just put him in a most untenable position.

After the dust had settled, I sent a summary email to the City Manager, and felt Brea Matters readers deserved to get this side of the story.

To the City Manager…

Bill…

This is in response to your text message to me following your meetings with Jim Markman and Steve Vargas on Thursday afternoon.

In short, here is a synopsis for context. “After much discussion, Steve Vargas has, per the code, the ability to remove his appointment. He does not need a reason or cause… Tuesday night, on the [study session] agenda, Council will discuss the timeline to fill the unscheduled vacancy.”

Steve’s unilateral decision to dismiss me from the Planning Commission may be done without cause, however he chose to include a statement of cause in his notification letter. He thus opens the door to rebuttal.

There is not a word of truth in what he says are the reasons he’s firing me. None. No two year agreement. No failure to respond. No obligation to keep him informed. The notion that he is incapable of doing his job as member of Council without my input is ludicrous.

As I’ve expressed to you previously, in detail, many who’ve become aware of this sad and regrettable moment in Brea history, including current and former members of Council, Commissioners and Committee members, share a common opinion. My dismissal is nothing more than retribution.

Retribution for what?

  • For filing a complaint with the FPPC regarding the $25,000 donation to Steve’s campaign committee by Brea businessman Druva Hardas without filing the required “Major Donor” information.
  • For asking the Building Department [code enforcement] if the Vet’s Club was permitted for the construction in progress which, it turns out, they weren’t. The project was shut down and plans have yet to make it through plan check.
  • For asking the Planning Department if the Vet’s Club’s original entitlement for an ABC license, as a private club, is still valid. The Vet’s Club no longer owns the building. Use of the facilities (bar) has been opened up to a broader customer group than what was originally specified. I ask if the Vet’s Club should apply to the Planning Commission for a CUP to perpetuate the liquor license entitlement.
  • For publishing the preemptive guest blog on term limits, forcing the discussion into the public forum, by John Koos in Brea Matters.
  • For publishing the reaction to Steve’s unilateral attempt to put a draconian term limits initiative on the November ballot guest blog by Brea resident Christie Russell.

Pick one, pick them all. More than enough to trigger retaliation from an obviously tormented mind.

When we first spoke about all of this last Wednesday, when half of Brea had received a copy of the dismissal letter and I had not, I told you, “The GPS on my phone indicates that I am in the absolute center of I don’t give a damn.”

I haven’t moved. Unlike too many in public service, I am not defined by the titles I’ve held or the positions I’ve filled. I am pleased to have been able to give back to Brea in various capacities for over 15 years. I will continue to do so through my blog Brea Matters.

Brea First.

Rick Clark

A world of support.

gallardo_a_300Let me interject that I have received the most helpful and supportive treatment from Bill Gallardo, other members of Council and friends in the community.

This support is deeply appreciated when blindsided by an irresponsible person, hell bent on self destruction, with little regard for the community he was elected to serve.

Final thoughts on Mr. Vargas.

loose_canonWell, there you have it, a dark day for Brea. I could find no Commissioner or Committee member in the 99 year history of Brea that has received such callous treatment at the hands of a member of Council.

I’ve heard Vargas referred to as a “loose cannon” many times. A rather apt metaphor to be sure.

Once again Vargas proves how unworthy he is to hold the office of Council member. On a brighter note, he has single handedly guaranteed that he will be clean swept in 2018… here or wherever his ego puts him on the ballot.

If you, like me, have had just about enough of Mr. Vargas… please, for the love of Brea, do not vote for his surrogate Christopher Parkin for Council or his wingman Rick Rios for Treasurer. Thanks!

cannonballs