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

 

Envision Brea Needs Public Input.

Next Tuesday, May 5, the City Council agenda includes a Consent Calendar item to approve a Public Service Agreement (contract) with MIG, Inc. for (up to) $185,000 to launch Envision Brea, a long range planning project.

MIG’s original proposal, presented to Council during their Study Session last January 20, fell quite short of meeting Council expectations… most notably in the areas of Council authority/direction and public engagement. Comments made by myself during Matters From The Audience and revoiced by Marick, Hupp and Vargas, helped lead to a request for a citizen steering committee. Council directed staff and MIG to give it another shot.

A couple of weeks ago, at the Study Session on April 21, MIG ran Plan B up the flagpole. Once again Council broke out in spirited debate. It was clear that the revised plan was more to their liking, many questions remained and the PSA was, once again, not approved. Though discussion had been wide ranging and lingering concerns about public engagement persisted, no clear instructions were voiced to staff.

When I saw the Consent Calendar item to approve the contract I went a little ballistic.

Stop abusing the Consent Calendar.

Envision Brea matters.In recent years dozens of citizens have publicly and loudly objected to the sneaking of large expense items through the approval process without public comment by burying them in the Consent Calendar.

A Consent Calendar lumps numerous “uncontroversial” items together to be passed with a single vote.

Supposedly designed to save time, the Consent Calendar should be renamed Without Consent Calendar as it blocks the public’s ability to wade in on important matters.

I’ve lobbied heavily over the last couple of days for Council to pull this item and to openly discuss it during general session. While this pressure, and that from other citizens with the same objections, seems to have had good effect… I’ll believe it when I see it.

Talk first, spend later.

Include Brea's YouthCouncil members have loudly and consistently tooted the horn for transparency and public engagement since reorganizing last December.

Their most vocal concerns about the current MIG proposal center around it’s lack of engagement opportunities focused upon Brea’s younger population. I share their concerns.

Failure to make Envision Brea relevant to our Gen X, Y and Millennial population, to such an extent that they feel their contribution will be meaningful and contribute in real ways to the final product, guarantees failure of Envision Brea.

I and others have also lobbied for Council to hold a special session… as they recently did on the downtown parking structure, to allow the public to help frame the scope of Envision Brea.

If public engagement is so important, how about doing it instead of talking about it.

How you can help.

You don’t usually get involved in this stuff. You certainly don’t get up at public meetings and unload in five minute sound bites. But this is starting to hit close to home. You have some thoughts about how the city should handle your money. You agree that excluding the public, that dismissing your input or reducing it to giving them a stamp of approval, is unacceptable.

Send an email. Email the Mayor and entire Council or focus in on the Council member with whom you feel the greatest compatibility. Add your thoughts and concerns to the growing chorus of public opinion.

Take a stand. Make a difference. Contact A Council Member.

Make Brea Matters your soapbox too.

Consent Calendar hides.Adding your comment to this and future posts on Brea Matters kicks the conversation into fifth gear. You add both third party credibility and often expanded understanding of the issues being discussed. And you encourage your friends and neighbors to do the same.

Make some noise today. Encourage Council to pull the Envision Brea item from the Consent Calendar. Tell them to take their discussion downstairs and into public view. Demand an opportunity to wade in on Envision Brea before committing our money to a PSA contract, not after… when the opportunity for us to help mold the project’s scope and purpose is gone. Ask them to post the MIG proposal on the city’s website so you can dig into the details.

It’s your community. It’s your future. It’s time to assume the leadership and control you deserve.

 

Follow The Money!

Brea Matters has been purposefully silent since the new Council was seated. Operation Clean Sweep left many exhausted and in need of a little peace and quiet for a change. Now that Council is settling in… I’ve turned my attention to money matters, our largest and most threatening issues.

debt_400Unfunded Pension Liabilities was a widely used campaign buzzword. Though some attempts have been made to rein in it’s almost exponential rate of growth, Brea remains strangled by debt.

I made a list of financial topics to investigate and my initial inquires uncovered a maze of interrelated issues.

Revenue Over Expense, a smoking gun?

Forever I guess, Brea’s P&L (Profit and Loss) statement has concluded with Revenue Over Expense… which has been treated like free money. Honestly, I’d never noticed it before. I am familiar with the myth of free money however.

Every year, Council and staff announce, with much back patting and fanfare, that a balanced budget has been reached. However, try as I might, I can’t remember ever hearing mention of these leftovers.

Typically, I’m told, this money has been put into FARP (Fixed Asset RePlacement Fund). How much has gone into the fund, how FARP spent the money and how big this Revenue Over Expenses might be is still a mystery. I’ll keep digging, we deserve to better understand how our money is being managed.

Do not pass GO, do not collect $200 dollars.

MrMonoplyAt an upcoming Council meeting (I’ll give you a heads-up) staff will, for the first time, suggest splitting the reallocation of Revenue Over Expenses. The plan, I’m told, would reduce the FARP allocation to 90% and 10% would go to Fund 150.

Also known as the OPEB (Other Post Employment Benefits) Fund, OPEB pays for retired employee medical coverage (previously unfunded) plus current employee premiums. The unfunded debt is $16 million. This is the mystery component not generally mentioned in discussions on Unfunded Pension Liability which is now an additional $70 million. Don’t look for a calculator, that’s $86 million and growing.

Roy Moore, in his independent analysis and public presentation on our Unfunded Pension problem a couple of years ago, did include OPEB in his audit and projections. Sadly, neither Council or staff at the time allowed Roy’s efforts to gain any traction.

Bank error in your favor, collect $200 dollars.

wormsWell, if we can fold OPEB into the mix, what about Unfunded Pension Debt? What about repaying the 560 Fund the $1.4 million borrowed to make solar payments? Could we tap Revenue Over Expense for a little money to put drought tolerant landscaping at the Civic Center?

Opening this can of worms opens a lot of questions. I’m confident Council, especially if they seek answers publicly, where we can wade in with our comments and suggestions, will make the sort of policy changes needed.

Doubling up payments to CalPERS makes perfect sense, why hasn’t this been done already? The 560 Fund should never have been tapped to pay for a solar project that was sold, in part, on the basis that it would pay for itself. Why has there never been an audit of this project, framed in terms that all could easily understand?

Defining, once and for all, the proper use of the 560 Fund, conducting audits of O’Donnell’s Fire Department reorganizations and accurately calculating the ROI on the solar energy project have been systematically kept off calendar and away from public input. Why? What are they trying to hide?

Drought garden planted the seeds of public distrust.

FB_palmtree_300The original drought garden, jammed through at the last minute and without considering public input, was a poorly designed masquerade to avoid spending proper funds on a public works project. The story leaked to the public, objections and outrage could be heard from all sides, the Mayor was counseled to postpone discussion and refused.

Today’s Council has a win-win opportunity to bring the “Rock” Garden back for further discussion. Here’s a chance to reverse a major blunder of it’s predecessors, to be honest with the public and clear the air, once and for all.

First, admit that repairing the leak in the Civic Center parking structure and avoiding spending Building Maintenance funds on it was the real objective. Put a standalone item on the agenda for a Public Works project to fix the leak. Pay for it with the Building Maintenance fund.

Put  a second item on the agenda to put drought tolerant landscape on the effected area once repairs have been completed. Tap MWDOC for their sod removal subsidy and Cal Domestic for the promised grant. That’s $17,500 in the bank. Allocate another $17,500 from Revenue Over Expenses. Boom! The budget is now only $35 thousand dollars, not the quarter million as originally stated. Invite CSUF grad students to do the design.

Please, it’s a business, not a board game.

govt_money_400The City Manager has often characterized himself as the CEO of a large corporation as justification for his salary package — twice that of California’s Governor.

Okay, it’s time to start running this city like a real business instead of a board game.

Start trapping all expenses against all projects and programs. No More soft costs. No more robbing Peter to pay Paul. No more hiding special interest projects by calling them something they’re not.

Every time accounting principles are pushed to their limits the door is opened to slip the difference into Revenue Over Expense.

The ball’s in your court now.

Thanks to Operation Clean Sweep and a voting population interested in rebooting City Council, we now have five Council members with open door policies, offering greater transparency and accountability in government and dedicated to fostering meaningful community engagement. Let’s not waste it.

The time to stand up and be counted is now.

Send your thoughts via email to:

Of course you can always come share your thoughts at Council meetings during Matters From The Audience. Check the Council’s agenda on the city’s website so you know what’s coming up. You’re not limited to commenting only on agenda items. Something bugging you? Speak up. Don’t be afraid to ask Council to pull an item from the Consent Calendar for discussion or to move a discussion item from the Study Session to the formal meeting in Council Chambers.

I’d be remiss if I didn’t encourage you to send positive vibes their way too. Council is a big commitment. It’s hard work. It shouldn’t be a thankless job. We have a winning team now, there’s nothing wrong with showing a little team spirit and cheering them on.

Oh, and in the unlikely event you’re one of those who didn’t vote… never mind.