When Is A Law Not A Law?

Well, it seems a law isn’t a law unless City Attorney Markman decides to give it his blessing and Councilman Vargas likes it.

At the March 20 meeting of City Council, the Consent calendar item amending the City Manager’s employment contract triggered a strong public objection to the unsupported dismissal of Measure T, passed by a majority of Brea voters in 2012 and limiting Council and senior staff compensation.

The law matters.

A half dozen or so residents decided to address Council during Matters from the Audience.

Three folks, all admittedly candidates for Council this year, addressed a Consent item about park maintenance, the homeless situation in Brea and Senator Moorlach’s recent study that put Brea fiscally next to last in OC cities.

Measure T and the City Manager contract wasn’t on the radar of any candidate for Council. Thee red flags!

The other speakers all focused in on the law, the contract, the damned good reasons the law should be upheld and the contract pulled from the Consent calendar… subjected to public hearing.

Let’s talk about the initiative process.

The initiative process is a form of direct democracy. Citizens draft a “measure” which they then propose by petition; if the petition receives sufficient popular support, the measure is placed on the ballot and can be enacted into law by a direct vote of citizens.

Unless Measure T can be shown to be in conflict with Constitutional law, it is law in Brea and enforceable.

Again, I suggest that the law is the law. Write the contract accordingly. Through negotiation, Mr. Gallardo can agree to it’s stipulations or reject them. He may also challenge them in court.

So, what the hell happened?

Let’s start here then I’ll give you a rundown of events. The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.

lawDuring the “Response to Public Inquiries” Mayor Parker, rather than pulling the City Manager Contract from the Consent calendar (Item 18) as had been requested by several residents, allowed the City Manager to defer to comments from the City Attorney.

First came a brief and mostly unintelligible description of the amendment to the City Manager Employment Contract Agreement, which had received substantial objections, mostly centering around the restrictions imposed by Measure T. Then Mr. Markman jumped into a rationalization of why the law approved by Brea voters in 2012 has been largely ignored.

“(The speakers) are blasting something that was done very carefully, in public… you will recall that when Measure T was adopted it was our obligation to analyze it because some parts of it we saw were obviously valid and had to be implemented… like the health benefits being deprived from the Council… some of the other provisions we didn’t think, for various reasons, were enforceable or valid…”

Let me stop you right there Mr. Markman. As you pointed out, Measure T was adopted. A majority of Brea voters passed Measure T with the intent that it become law. Not unlike when they voted to establish a paramedic service… and we know what a fiasco that has turned out to be.

Your obligation, Mr. Markman was to implement the wishes of the voters, NOT analyze it. Who is the “we” you mention that decided some “provisions we didn’t think… were enforceable or valid” – you and Tim O’Donnell?

Because another unnamed city has let a similar initiative languish without implementation is not a good reason why Brea should mirror the same groundless behavior. They, whoever that is, were wrong… ergo you were wrong.

Mr. Vodhanel, during “Matters,” clearly described the history of unsound counsel that cost Brea nearly a million dollars in unnecessary legal expenses… half of which ended up in the RGW coffers.

Any chance you’ll be giving that back?

I don’t care what “thoroughgoing presentation with PowerPoint” you gave Counsel in 2013. If it’s intent was to dismiss a law demanded by Brea voters it was just one more sample of unsound counsel.

I don’t care that you attempted and failed to “negotiated with Mr. Vodhanel directly to try to get some sort of compromise resolution.” Once Brea voters made their wishes known, the original proponent placing the measure on the ballot was no longer in the gunner’s seat… amending the law should be done in a manner that, again, gave Brea voters a voice.

Arguing on behalf of the amended contract.

Now Mr. Markman’s comments, having successfully dismissed any relevance of Measure T or the Brea voters who approved it, turned to yet another prattling of legalese, the sole purpose to rebuff the law and dismantle every objection to Mr. Gallardo’s amended contract.

At what point did the City Attorney’s job description add the responsibility of playing agent for the City Manager? Take your “show me the money” propaganda Mr. Markman and stick to your job description.

Vargas jumps in… puts both feet in his mouth.

lawCouncilman Vargas interrupted the normal flow of the meeting to interject comments relative to Item 18, without objection from Mayor Parker. Totally inappropriate.

With no motion on the floor to approve the Consent calendar or to pull Item 18 for individual consideration… this was little more that grandstanding.

“I would like to make a couple of additional comments on Item 18 without pulling it as I’m prepared to support this Consent calendar.” Vargas said. No objection from anyone on Council. Wimps. Are you really that susceptible to being bullied by someone you all know is in way over their head?

After claiming to be the biggest and most vocal proponent of Measures T and U, Councilman Vargas cites some piece of correspondence from an anonymous woman to allow him to springboard into putting his two cents in without challenge. Anonymous? Put this mystery letter into the public record so we can all see it. No need to redact anything… it’s anonymous!

First, he squashed the four mile limit claiming the city would have to spend large sums for moving expenses and the provision of a silent second. Whoa Mr. Vargas!

A silent second is a type of second mortgage loan that is part of a home sale transaction without the knowledge of the first lender. In most instances, silent second home financing is a form of fraud and thus highly illegal.

Right, wrong or otherwise… Councilman Vargas seems to have dismissed any possibility for further negotiation with the City Manager.

But wait… there’s more!

Councilman Vargas then addresses the limitations to the contract imposed by Measure T and Council’s amending the term from three to five years… which requires explanation, to be sure.

Vargas points out that the City Manager is waiving a 3.2% salary increase, driven by a provision in Measure T for an automatic adjustment of 10% higher than the next highest employee. “I never liked that provision… it was put in long ago and I don’t like it.”

Your use of the unilateral dismissal strikes me the same way,” it was put in long ago and I don’t like it.” Okay Mr. Vargas, you’ve used up all of your unilateral overrides and embarrassed this community enough. What you like or don’t like has no bearing on the law or it’s enforcement. What a preposterous idea.

If, one day, you decide you don’t like the speed limit on Birch Street will we be dodging your big red pickup? If you decide you don’t like laws prohibiting driving under the influence can we expect to see that big red pickup weaving in and out of traffic… putting lives at risk?

You may say that’s just silly… but your rejection of a law adopted by Brea voters on a whim is just as silly. Maybe even more so.

Badda-bing… badda-boom.

With that, Councilman Vargas moves to approve the entire Consent Calendar, someone mumbled a second (we’ll need to see the minutes to determine who it was), there was no additional discussion from any Council member and the whole list was approved – badda-bing… badda-boom.

If that weren’t enough, fast forward to Council Announcements and the only one to speak is Mayor Parker. Unwilling to quash the inappropriate remarks of Mr. Vargas earlier, he launches into his own remarks after the horse is well out of the barn.

Citing that Council is only capable of doing the great job they do because they’re able to hire the very best employees to support them. He continues suggesting it’s Brea’s ability to be salary competitive that brings us “competent and effective” staff we have.

How’s that been working for you Mayor Parker?

Mayor Parker concludes his four minute unsolicited, unnecessary and unwanted comments with an effusive back patting and rationalization session.

Please… don’t let me see his name on the ballot ever again. Not even for dog catcher.

 

law

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.

 

Council To Debate City Code Amendments.

On Election Day, November 7th, Council will finally address the due process issues lurking in Brea’s Municipal Code. If you’re a Constitutionalist, as I am, you’ll want to do your homework on this one. Here are the blogs that lay the foundation for my year long effort to bring our municipal code into conformity with the state and federal Constitutions.

I’m Mad As Hell, And I’m Not Going To Take This Anymore.

I’m Still Mad As Hell.

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

Vargas: Liar Liar… Pants On Fire!

due process

It is my strong opinion that there are some within city hall who are responsible for creating this situation, years ago, that have repeatedly attempted to thwart this matter from reaching Council’s agenda. Information presented to Council thus far appears to have purposely misdirected Council, focusing their attention away from the real due process issues and onto the Council Code of Ethics which is a policy document subject to repeated modification.

The BMC is the law. The BMC needs to be amended to eliminate the threat of violating your Constitutionally guaranteed due process rights.

No amount of obfuscation changes that.

“Facts do not cease to exist because they are ignored.” – Aldous Huxley

due process

Update 11/07/17: I have sent Council a compilation of the reviews of other city codes, combining the almost irrelevant list supplied by the City Attorney’s office and the neighboring communities list I provided Council a year ago.

Click Here to read/download a copy of the list.

Reading the list, you will be struck by how many of the cities reviewed by the City Attorney have little or no resemblance to Brea. The list was drawn from cities contracting for legal services from RGW, Brea’s City Attorney. Apples to oranges.