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became bogged down in his own rhetoric and, after the City Attorney poked holes in his “solution,” Parker became withdrawn and contributed little of value.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 rational 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.

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