Public Records Retention?

retention

We lose a little piece of Brea every day.

Most folks, when asked, “What is a public record?” will respond with birth or death certificate, high school or college diploma, marriage license. And they’d be right.

The public records and records retention I’ll be talking about here are the documents that give us a data trail describing how Brea’s government has been managed and by whom.

And we have a problem. A massive sucking black hole sort of problem that is allowing hundreds, if not thousands, of important records to disappear without a trace… forever. Every day. We are bleeding out.

Records retention is complicated.

retentionI’ve got to do a little bird walking to establish the context here. I apologize in advance and hope you’ll have the patience to stick with this to the end.

Brea has had a Records Retention Schedule for years, last updated 18 months ago. It only addresses the old world of paper. It does classify all manner of city documents. 518 actually, over 12 departments.

Some types of documents are controlled by state law. Council agendas, staff reports, resolutions, ordinances and minutes are managed and retained by the City Clerk from start to finish.

Electronic copies of these documents are available online, only back to 2010, which is a problem Council should have addressed decades ago.The good news is that we still have 100+ years of records. The bad news is they’re in old boxes in a dusty storeroom somewhere in the bowels of the Civic Center. Thankfully, our City Clerk and her staff is perfectly willing to go dig up anything out of there if someone requests. Bless them.

Brea’s records retention: Land of the Lost!

retentionOur records retention policies never made the leap into the digital age. Even though all communications have long since moved from the IBM Selectric to personal computers and storage cost on the cloud is quite manageable.

Unfortunately we have no true electronic communications policy for email and other documents.

What we do have is a 14 page IT Department policy that makes the following reference, “Employees should be aware that all public records, whether on paper or computerized, are subject to the mandatory public disclosure requirements of the California Public Records Act.”

The policy does state, “E-mail messages sent and received, including any attachments, which messages can be considered an Official City Record, are to be stored in computer files or printed as a hard copy and filed in accordance with the Department’s Filing Policy.”

Except there are no Department Filing Policies. My very thorough CPRA request specifically included them but none were ever produced. Most other cities do have Department Filing Policies and were quick to send me copies.

This general IT Policy also says, “Although the IT Manager may automatically delete any data stored in the e-mail system that is 90 days old, individual employees are responsible for the management of their mailboxes and associated folders. In order to assure maximum efficiency in the operation of the e-mail system, staff is encouraged to delete e-mail messages that are not Official City Records from their in-boxes once they are no longer needed. If a hard copy of data which constitutes an Official City Record has been printed and filed in accordance with the City’s Record Retention Policy, the e-mail may be deleted.”

The 90 day black hole!

retentionWell, buried in that massive bowl of bureaucratic word salad is the heart of the problem. Everyone on staff has defaulted to the path of least resistance and has allowed the auto-delete function do all of the work.

I cannot fathom how many priceless pieces of Brea’s public records have been forever lost in this manner. So much of what we might really like to know about how things were done in the past is lost. What was the context of the moment and the state of mind of those making the decisions?

The “claimed” loss of important correspondence surrounding the city’s dismissal of all interests in the Gateway Center is a classic example. Falling back on the ubiquitous “there are no records responsive to your request” (get-out-of-jail-free card), staff used the 90 day black hole to dodge a bullet.

When pressed if such correspondence ever existed the City Manager, Bill Gallardo, and Director of Community Development, David Crabtree, went mute. Crickets.

That’s because when it becomes known that a public record is incomplete or missing, there are precedents requiring that record to be restored. That’s how we got the deleted consultant’s proposal back on the Hines Project.

The heart of the policy.

retentionAs an aside, most of the IT Policy (12.5 out of 14 pages) focuses upon contents, i.e. employee rights and limitations, prohibitions against dissemination of derogatory, defamatory, obscene, disrespectful, sexually explicit or sexually suggestive content. Prohibitions against electronic snooping or tampering.

Confidentiality and perception of privacy are covered as well as establishing the City’s right to monitor and record employee usage… and a page requiring all employees, by signature, to acknowledge they have received, read and fully understand the terms of this policy and agree to abide by them. The terms and potential disciplinary actions include termination and/or criminal or civil prosecution. Yeah, I’m sure every employee is fully onboard with this and understands every word.

Records retention is really two problems.

The first problem is to thoroughly and completely identify and categorize every typical form of city communications in a manner which separates important public records from the chaff of everyday business.

The second problem is the greater of the two.

The bigger problem is oversight and enforcement. How do you get 300 to 500 busy people to consistently follow the guidelines, almost on a daily basis, in a manner that successfully maintains the public record?

Lets take a lesson from our neighbors.

La Habra is one of only two cities to address the enforcement problem. They have established a Records Management Committee, designated representatives from each City department and the Records Management Staff, created for the purpose of administering and coordinating the Records Management Program and to maintain and control the disposition of records in the respective departments.

Yorba Linda’s recently updated their Records Retention Policy. The City Clerk’s office takes the lead role in coordinating with all City Departments on the timely and appropriate destruction of obsolete records according to the Records Retention Schedule.

Particularly important is this part of Yorba Linda’s policy, “Before any records can be purged, each department will complete the Authority to Destroy Obsolete Records form which identifies each record and will require sign-off from the City Attorney and Department Head. Certificates of Destruction will be issued and these shall be permanently kept on file with the office of the City Clerk.”

Why can’t we do that?

retention

Gateway Center: Kiss Your Assets Goodbye.

In October 1991 the Gateway Center at Brea Blvd. and Imperial was launched as one of Brea’s first RDA projects. On March 7, 2017 the City Council, acting as the Successor Agency, terminated 100% of the city’s interests in the center in exchange for a check in the amount of $7.8 million dollars.

But wait… there’s more. Brea had to pass this revenue on to the Orange County Auditor-Controller to pay off all taxing entities (other agencies having a right to a portion of the proceeds). The City netted only $1.2 million. I’ll explain later where it went.

Not such a good deal.

In simple terms, staff provided Council with their recommendations, backed by just a 5 page Memorandum by Keyser-Marston, extolling what a great deal this was.

Since 2012 we’ve received an average of $354K annually from rental income (subject to the same pay off to all taxing entities). This one time payout would generate around 3.5 years income.

Instead, why didn’t we opt to continue collecting annual rent? Our participation agreement ran another 30 years… until 2048. Rents would have more than doubled by then but Keyser-Marston left that out.

What staff and Keyser-Marston also failed to disclose to Council was that we had a 25% equity stake in the Gateway Center. It would be triggered by either a refinancing or a sale (full or partial) of the property.

In 2005 Watt-Craig Associates Limited Partnership, per the timeline provided by staff, “sold majority stake in ownership to AFL-CIO Building Investment Trust (AFL-CIO) but continues to retain a small portion of the partnership interest.”

Staff’s claim, when pressed on the matter, is that only a 100% sale would trigger a payout to the city. Watt-Craig retained a 1% stake in Gateway. Who was the rocket scientist that thought this was okay and that we should walk away from around $16.2 million?

Conservatively, the Gateway Center is worth about $80 million… you do the math. Termination of the city’s interest robbed us of $20 million if the property sold today.

Who knows how much our equity would be worth if we simply let it ride?

You can fool some of the people…

Did no one on Council see these red flags? No, because they assumed staff had provided the full scoop. The deception of Council was anchored in their belief that the property owner, Watt-Craig Associates LP, had opened the discussion of a termination agreement.

Not so, even though the staff report, the Keyser-Marston memorandum, the fancy always to be trusted PowerPoint presentation and the Successor Agency Resolution SA 2017-02 all stated otherwise, “The Owner is proposing the buyout of the Successor Agency’s interest…”

It was disclosed, early last week, that this process was initiated by our Director of Development, David Crabtree, presumably at the suggestion of City Manager Bill Gallardo. It was also disclosed that protracted negotiations followed which lead to staff’s recommendations.

From where I sit, this smacks of premeditation and reinforces the notion that this was all fabricated to generate the revenue needed to balance an otherwise upside-down budget (see below).

I’ve made a series of thorough CPRA requests for all communications and documents relating to the termination of our participation in the Gateway Center project. The City’s initial response last week overlooked numerous responsive documents and the City Clerk, Lillian Harris-Neal, has promised to provide them as quickly as she can.

gatewayFollow the money.

You can’t. As is the custom, the revenue was dumped into the General fund where it vanished into thin air. Well, sort of.

It had been determined that the FY2016-17 budget, thanks to declining sales tax revenue, was coming up short somewhere between $800K and $1M – an alarming dilemma for a city that had “always” balanced it’s budget.

Subsequently, unanticipated revenue miraculously offset the shortfall and… voila, the budget was balanced after all. I can’t help but wonder how many preceding “balanced” budgets benefitted from similar fiscal skullduggery.

A couple more scary thoughts.

Not one of Brea’s commissions or committees has a resident member with expertise in commercial real estate or the taxing authorities.

Staff has been careful to keep City Treasurer Rios, Planning Commissioners McGrade and Ullrich (both with deep experience in commercial real estate and the taxing authorities) as much in the dark as they have Council.

We own Embassy Suites and lease land. Staff is contemplating to sell off another “legacy “ asset!

Where does this leave us today?

In deep shite. We have a new budget about to be proposed in the face of continued revenue decline.

Cuts have been made, without clear validation as to how and where considering that the city’s “soft cost” approach to accounting fails to consider labor as a cost.

Many fees have been increased thanks to the city’s ability to calculate labor and overhead down to an hourly rate.

Hang on… am I the only one who sees the contradiction? The city needs to convert to a true cost accounting system and to stop trying to solve the reduced income situation by handing is off to taxpayers to pony up even more.

Time to put on the brakes!

A FY2018-19 operating budget would go into effect in about 47 days. I’ve seen no report from that new fancy special strategic budget oversight committee.

The City Treasurer, Rick Rios, who has leveraged California statutes governing the authority and scope of responsibilities of an elected City Treasurer to reconstitute the office’s role as fiscal watchdog, has yet to see a single page of a proposed budget.

It’s time to put a halt to City Staff’s Ready-Fire-Aim approach to managing city business.

I suggest that Council approves a 30 day emergency stay by employing the proposed operating budget for the month of June only.

This breathing room will allow for Council to give staff more finite instruction, for the Budget Oversight Committee to actually do some oversight and give the City Treasurer the time and opportunity to do the job we elected him to do.

rock the boat

Vargas: Liar Liar… Pants On Fire!

On Tuesday, September 5, Council finally had an opportunity to address the Constitutional Due Process issues in the Brea Municipal Code but, thanks to inadequate staff input and a major distraction from Council member Vargas, they were thwarted.

After a year of sidestepping the issue, City Manager Gallardo and City Attorney Markman continued trying to wriggling out of honestly facing the music by submitting conflicting statements to launch Council’s discussion.

Gallardo said he believed the Brea Municipal Code and Code of Conduct were in conflict (not the root issue), Markman disagreed completely… denying that any contradiction existed and doubling down on his assertion that there was no threat of Constitutional violation because termination of Commissioners and Committee members is made without cause.

The greatest roadblock to Council having an intelligent discussion was the almost incoherent ranting by Council member Vargas. He not only derailed the discussion, he added to his list of “causes” for dismissal which crushed Markman’s position. In addition, claims made by Vargas were fabrications… figments of his imagination.

Everyone in the room must have recognized that, especially Vargas. Assuming he hadn’t forgotten the truth, he must have known just how far he stretched it.

Ultimately, thanks to Council’s unwillingness to be intimidated and the Mayor’s taking control of the discussion, the decision was to continue the item until staff could provide additional information. Hopefully staff will also make some attempt to get on the same page with each other.

I’ll leave follow-up on the real issues until they hit Council’s agenda again and turn my attention now to poking holes in the spurious allegations and remarks being tossed about by Mr. Vargas.

The Letter of Dismissal

I’ll work my way through the “causes” cited by Vargas in the letter.

  1. “… our initial agreement was a two year assignment” – No such agreement was ever made. No member of Council has the authority to make such an agreement and, if they were authorized, the BMC would state so and the “deal” would obviously have to be disclosed when the nomination is made. Never happened.
  2. “… allow you some closure from past experiences as a Commissioner, unfortunately I am not in a position to continue the redemption any further” – A complete non sequitur. My seven year history as a Cultural Arts Commissioner, as Chair of this Commission and it’s representative on Art in Public Places and the Senior Citizen Advisory Board is extolled at length in the commendation I received from Mayor Roy Moore in 2011. I needed redemption for nothing.
  3. “… (for) 3 months, I have attempted to communicate with you on numerous occasions via text and phone calls” – Hogwash. Once or twice a month Vargas would call me as he headed home from work at Port Hueneme and we would talk about various matters until he typically said, “Well Clark, you got me home safe and sound again.”

The last time we spoke we discussed his plans to put Term Limits on the ballot as a proposition. He refused to consider discussing his plans with Council. I told him it was a stupid idea, that it was an obvious attack aimed solely at Council member Simonoff. Finally, he agreed to drop the idea and the discussion ended.

Four days later the City Council meeting erupted in heated, angry exchanges with Vargas when he announced his intention to collect signatures via a third party contractor for a ballot initiative on Term Limits. When Vargas called me after the meeting I was too angry to take the call and let it go to voicemail. I did the same with the other half dozen attempts Vargas made over the next hour or so.

He texted me once the next day asking why I was dodging his calls. I texted back that I hated getting lied to and would need a few days to let my anger subside. I never heard from him again until I received the letter of dismissal… 36 hours after almost everyone in Brea seemed to get it. Must have been a massive BCC list.

  1. “…your reluctance to keep me informed of pending issues does not allow me to provide effective service as a council member.” – So, Breans have been under represented for almost a year now. Good to know. Don’t cross your fingers for the Mayor Pro Tem’s seat and we all know what to do when the 2018 elections come around.

During the first year of Vargas’ current term, as I would come across articles online relevant to current or impending city matters, I would email a link to Vargas… who seemed to have neither the time nor skills to do his own research. I did this maybe once or twice a week. I was surprised to hear he was unable to “provide effective service” without my help.

Fast Forward Almost a Year.

I mentioned the rants Vargas inflicted on everyone at last week’s study session, that they were laced with the same sort of groundless statements as are found in the dismissal letter.

  1. Only after repeated badgering by members of Council and City Staff did he feel forced to dismiss me. – Vargas was immediately challenged on this by the Mayor as being complete nonsense. Never happened.
  2. Vargas claimed to have “cleared it with” Gallardo and Markman before he sent the dismissal letter… a weak attempt to imply their approval. Gallardo and Markman preserved their “plausible deniability” by answering Vargas’ email inquiry by phone. A common practice down at city hall. However, Gallardo told me later that he attempted to talk Vargas out of the dismissal but failed and that Markman merely confirmed the appropriate BMC reference.
  3. Vargas said he discussed health issues with me, asking me to resign, and was compelled to terminate me because I would not resign. A year ago my health was not an issue, we never had such a conversation. This is total b*llsh*t.
  4. Vargas stated that he appointed me because of my experience with affordable housing while working for Quaker City Bank. (No Steve, that was Ron Garcia, your first appointment to the Planning Commission in 1998.) We never discussed housing of any type prior to or following my appointment to the Planning Commission. I have never worked for Quaker City Bank, or any bank, but did handle branding and advertising for Landmark Bank in La Habra when it launched in 1979… 38 years ago.
  5. Vargas protested my use of the California Public Records Act (CPRA) to obtain information leading to my “due process” probe and aggressively demanded “cost accounting” from the City Clerk, City Manager, City Attorney and Director of Development for the staff time required to respond to my inquiries. He was summarily put in his place by Council member Simonoff who reminded him that it was wrong to chastise the public for the cost of complying with a public records request.
  6. Vargas accused Council of wasting time on an issue that only a “blogger” cared about. Really? Council’s oath of office swears to uphold State and Federal Constitutions! If there is even the slightest possibility that the BMC is in conflict they are bound to investigate regardless of where the challenge came from.

Council does what’s right.

Given all that occurred last Tuesday, Council did what was right. I trusted that they would and they didn’t let me down. They continued the item and tasked staff with bringing them additional relevant information.

This is far from over folks and no loose canon is going to dissuade me from pursuing the truth or bully Council into sweeping this under the rug.

vargas liar