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…

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

Mad is an understatement. Having pressed for answers, reasonable explanations and an understanding of how local government works I’ve come to a conclusion. It doesn’t. At least not in a way that most voters have hoped it would.

Let me share again former City Manager Tim O’Donnell’s favorite definition of leadership, “Leadership is disappointing your constituents in increments they can absorb.” That made me mad as hell the moment I heard it. Hearing that launched Brea Matters and kept me going every time a door was slammed in my face as I sought the truth.

How many times have you been disappointed by something Council has decided, that a Commission or Committee has recommended or that staff has suggested? How many times have you let it slide only to find yourself disappointed about something else just days or weeks later?

See, it works. They know it works. They know they’re able to bend a rule, break a law or violate an ethical standard with little or no concern that they might be held accountable. That makes me mad. It should make you mad as well.

Maintaining public records.

Recently, Planning Staff admitted to deleting documents, a consultant’s proposal that pointed out an error in Staff’s thinking. It wasn’t what they wanted to hear or felt the Planning Commission had a right to hear. The City Attorney said they were within their authority and the matter was swept under the rug.

When this loophole in the city’s Records Retention Schedule was pointed out by Brea Matters, members of Council demanded that the loophole be closed. Then another discovery was made.

The Records Retention Schedule, unchanged since the last millennium, was updated by the City Clerk last year and submitted to the City Attorney for review. It had sat there collecting dust until Council’s demand brought it to the top of the pile.

Still, nothing has been done. “Leadership is disappointing your constituents in increments they can absorb.” Dammit, I’m mad as hell.

Amending municipal code.

On September 28, Councilmember Vargas invoked an obscure, never before used, piece of the Brea Municipal Code and, without warning or prior notice, “fired” me from the Planning Commission (see details here). He citied causes not included in the municipal code.

Several months of haggling with the City Manager and City Attorney finally got me a face-to-face with the Mayor and Mayor Pro Tem on January 9 where I laid out my “case” that Brea Municipal Code inadvertently violated my Constitutional due process rights.

I had no interest in litigation. None. Still don’t. All I hoped for was to help initiate a change in the BMC that would protect the Constitutional rights of my friends and neighbors who might one day consider volunteering for a Commission or Committee… that would protect them from the sort of incompetent conduct I was subjected to.

A month later I was informed by the City Manager that the City Attorney had been instructed to draft amendments to the BMC, eliminating the due process issues, and that the amendments would be given to Council to approve within the month. That was February, this is June.

On three subsequent occasions I was told that the amendments would be on the agenda in the next meeting or two. I fully expected to see the item on this week’s agenda. Nope. Nothing. “Leadership is disappointing your constituents in increments they can absorb.” Again, I’m mad as hell.

City Hall priorities.

On April 7 I published a blog headlined “Corruption’s Partner Is Our Own Indifference.” The admonition expressed was clearly made towards Brea Matters readers with the reminder that our continued indifference to what goes on in city hall is the catalyst from which corruption is born. The word corruption never again appears in the piece.

The City Attorney, I’ve been told, read that word and went ballistic.

Over the next six days, the City Attorney and staff conducted legal research, wrote an eight page memo to the City Manager, City Council and others (more like a manifesto obviously pointed directly at Brea Matters) and engaged the city’s Marketing Department to see that it was circulated on social media to the broadest extent possible.

Six days. Not six months… six days! They’ve been sitting on the Records Retention Schedule for almost nine months, on the BMC amendments for five months but they can somehow fire off a memo attacking Brea Matters in six days?

Who’s setting priorities down at city hall? “Leadership is disappointing your constituents in increments they can absorb.” I think I have every right to be mad as hell.

A call to action.

Council reads Brea Matters. Faithfully if not supportively. So I’ll take this opportunity to make a couple of suggestions.

Please, with all the authority you can muster, instruct the City Manager … once again, to tell the City Attorney to get off his ass (sorry Gramma). Obviously unable to determine which assignments should take precedence over others, it’s time to step in and retake control.

Please, take a look at how long it’s been since Council and the City Manager made any attempt to confirm that Richards, Watson, Gershon (RWG), and more specifically James Markman, are Brea’s best choice as City Attorney. Maybe it’s time we sent out an RFP for City Attorney to see if there might not be better choices for Brea.

Still mad as hell.

One more time, let me remind everyone. Leadership IS NOT disappointing your constituents in increments they can absorb. Here are a few thoughts that do a better job of defining leadership.

“If your actions inspire others to dream more, learn more, do more and become more, you are a leader.” — John Quincy Adams

“Leadership: The capacity and will to rally people to a common purpose together with the character that inspires confidence and trust.” — Bernard Montgomery

“Leadership defines what the future should look like, aligns people with that vision, and inspires them to make it happen, despite the obstacles.” — John Kotter

“Leadership is about service to others and a commitment to developing more servants as leaders. It involves co-creation of a commitment to a mission.” — Robert Greenleaf

What sort of leader do we want?

I believe we want leaders who create an inspiring vision of the future, who motivate and inspire us to engage with that vision and who have the skills to deliver that vision.

Write that down in big bold easy-to-read letters. Stick it on your fridge where you will see it every day. When election day rolls around again… remember it.

Planning Commission Blindsides Breans.

commission meetingI am still dumbfounded. With Chairman McGrade at the helm, carefully steering the Planning Commission towards an all too obvious destination, there was no hint of addressing the larger issues.

As people gathered for last night’s meeting, Director of Community Development David Crabtree was asked how he expected things would go. He smiled and responded, “It’s in the Commission’s hands now.”

Where did that confidence come from? What might he have known that the rest of us, on pins and needles, failed to understand?

My opinion? He knew the Commission had been prepped that process issues were not their responsibility, but Council’s. I think Commissioners realized that if they challenged process issues the City Attorney would have interjected and shut them down.

Consequently, there wasn’t a whisper about document destruction, the Records Retention schedule, arbitrary limitation of what the Commission was allowed to see or using an addendum to restrict public input.

Also my opinion, Chairman McGrade began his path to orchestrating the flow of discussion last night in January 2016, when he interjected himself into the selection process for Vice Chair.

Coincidently, this occurred at the exact same time that Planning Staff was rejecting the ICF proposal, deleting it from public record and moving forward with the addendum to the 2003 General Plan EIR.

Back to the meeting.

Dejected but still hopeful, a half dozen folks addressed the Commission during Matters from the Audience. They restated their concerns over density, building mass, traffic and parking — the big four.

The standout comments came from Dwight Manley. He shared a legal opinion from an environmental attorney clearly pointing out the gross error in using a General Plan EIR, which is a program level document, to assess a specific project… 14 years after the fact.

Right as rain, Dwight’s comments fell on deaf ears and Chairman McGrade moved on, without comment, and opened deliberation.

First to speak, Chairman McGrade set the tone by establishing his support for the project and his belief that everything was above board and legal.

Next up, Commissioner Schlotterbeck who went to great lengths to share the impressive extent of her due diligence. She reviewed thousands upon thousands of pages of highly technical and legal documents.

She also remarked that the public, whom she cared deeply about, had only a very limited understanding of CEQA. She cited specifics from the California Public Resource Code that proved there was nothing in the Hines project that violated law.

She also suggested that the project only complied with about 80% of the General Plan but failed to offer how to mitigate that shortfall. That’s like a transplant surgeon telling you that your new heart will work really well 80% of the time.

There are two solutions. Amend the General plan to accommodate the project so it is 100% in compliance or alter the project. Neither was done or even suggested last night.

Commissioner Schlotterbeck also raised the possibility that building “B” on the north lot might best be changed to condo/townhome product to lower density and add a very needed type of housing to Brea’s inventory. Other than weak applause from a few residents, the idea went nowhere. Why?

I’m wondering if changing from apartments to single family homes would trigger the need to change the zoning from Mixed Use to Residential. Such being the case, a new EIR would be automatically required. Not what Staff or Hines wanted.

Commission hits an impasse.

Chairman McGrade suggested a short break for Hines to discuss what options they were comfortable with moving forward. With Building “A” and the Hotel apparently in the bag, all that remained was to fix the density complaint for Building “B”.

Interjection: There is no way in hell Building “A” and the Hotel should have been given a free ride at this point! Everything should have remained on the table 

The likelihood that a creative solution could be instantly designed when it took the better part of a year and a half to get to this point was nonsense.

During the break I asked one Commissioner, if none of them cared about the breakdown in process and the look I received in return said it all. There was clearly the presence of a sad inevitability in their eyes. Their shoulders shrugged and they plodded, dejectedly, back to their seat.

For weeks, if not months… Hines, their attorneys, architects, engineers and consultant, John Koos, hunkered down in a conference room playing “what if” with every scenario Koos might imagine.

Over the break, all they did was find the right page in their playbook.

They didn’t even mention the condo/townhome option but jumped straight to a mashup of 3 and 4 stories reducing the density from 285 units to 228 units, leaving the total number of project units at 690.

This reduced the “B” building by this mystical magic number of 20% but something markedly less is true for the entire project. Neither the massive Building “A” on the corner or the Hotel across the street has been touched.

Back to deliberations.

As they did earlier, Vice Chair Willis and Commissioners Fox and Grosse added little to the discussion… all echoing concerns for density, building mass, traffic and parking — reaffirming their lack of support for the project as proposed.

Armed with this get-out-of-jail-free card, all that remained was to morph Brea Place into something different than what was currently proposed. The Commission moved on with a single minded determination.

I was reminded of the used car salesman eye-to-eye with the first prospect of the day… “What will it take for me to put you in this little jewel today?”

No interest in whether the heap of junk was even close to meeting the prospect’s needs, let alone their dream of a new car. No concern that the rattling valves and acrid smoke coming from the tailpipe were clear signs of a car on it’s last legs. Unworried that the greater expense of maintenance would likely crush the prospect later.

It was all about closing the sale.

The people of Brea got steamrolled last night. Staff knows it. The Commission knows it. Hines, their consultant, attorney, architect, traffic engineer… they know it.

The last to realize the unthinkable had occurred were the folks with the red buttons and the high hopes.

Will there be an appeal when, inevitably, the project with it’s crushing density, easily foreseeable flood of traffic and long list of overlooked negative impacts is approved?

Maybe, maybe not.

“Leadership is disappointing your constituents in increments they can absorb.”

This O’Donnellism, this longstanding municipal mantra, once again proved prophetic. I’m not fond at all of the fatalist’ mentality, but this feels a lot like, “Game over.” 

I’m unwilling to give up. How about you? Are you ready to roll over or will you take some time out of your busy day to become part of the solution?

Markman & Flower