The Sky Isn’t Falling… Yet.

The doomsayers, pessimists and chickens’ little are all in a panic over nothing, I think. With the passage of Measure T, I felt it prudent to look further into election law to better understand what to expect now.  Let’s start with the law.

California Elections Code 9217: If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city. The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date. No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.

Typical legal mumbo jumbo.

I’ll try to tackle it one piece at a time.

“If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city.” That’s it, period, Measure T is law in Brea. No negotiations, no editing, no expensive legal challenges… it’s law.

“The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date.” The City of Brea has, or shortly will be, in receipt of the final vote count from the Orange County Registrar of Voters. Though the agenda for the December 4th Council meeting has yet to be published, it is reasonable to anticipate that the ROV’s declaration will be accepted by Council that evening.

If anything deserves or qualifies to be placed on the consent calendar, the acceptance of the ROV’s final declaration does. I mean, what would require Council discussion or debate at this point?

This is a routine and necessary step preceding the swearing in of reelected/new council members and the annual reorganization of the Council slated for their December 18th meeting. This means that Measure T becomes law automatically on December 14th.

“No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.” The measure, now law, cannot be repealed or amended without the people voting again on the matter. There is no provision contradicting this in the original ordinance.

But wait! There’s More!

Measure T included a severability clause. In short this means, if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue in force as law.

In simple terms, should the City of Brea, at a later date, decide to take issue with some part of the law, they are free to do so but must prove their case in a court of law. If they prevail, the balance of the law remains intact as originally written.

A couple of examples.

Let’s say, somewhere down the road, the City needs to hire a new City Manager.

Due to excessive salaries being paid to City Managers across the state, the City might claim to find it difficult to locate acceptable candidates willing to work for a salary conforming to the limitations imposed by the law. The City, apparently, can use this situation to challenge the salary cap, though I fail to see where their problem has anything to do with the Constitution.

In today’s tough economic climate, with so many highly qualified people either underemployed or out of work, I would imagine finding someone better qualified would be a slam dunk. What would the qualifications be?

  • Having the people’s best interests at heart.
  • Having a willingness to follow the guidance of elected officials rather than an obsessive need to control everything.
  • Willing to work for a fair and reasonable salary, as defined by law.

Another issue that may arise, as has been suggested by the City Attorney, might be the requirement that the City Manager live in Brea, citing the “four miles from city hall” as being unconstitutional.

More a tactic Mr. Markman and Mr. O’Donnell had hoped would help dissuade voters from passing the measure, there is really little or no problem finding cases across this country where elected officials, educators and public safety personnel have been required to live within the community in which they serve.

In either case, until a specific issue is raised due to immediate circumstances, there is no provision that would allow the City to arbitrarily challenge one or more components of the law. It could be years before such a circumstance might present itself.

Immediate impact.

Neither council member Simonoff or council member elect Marick, upon being sworn in on December 18th, will receive or continue to receive flex benefits currently paid to City Council. There is a remote possibility that any stipend adjustment, to be consistent with the limitations prescribed by the State, would as likely create a slight increase to the stipend (which hasn’t seen a raise for maybe a dozen years) than a decrease.

I suppose they could decide to challenge this… trying to find a loophole or something, but the people have spoken, why would they be so foolish?

Both Simonoff and Marick, though not supporters of the initiatives, have expressly promised to:

  • Listen closely to their constituent’s opinions.
  • Conduct all City business openly and in full public view.
  • Carry out the City’s business in a responsible, fiscally conservative manner.

Any attempt to line their pockets by circumventing the constraints specified by Measure T will show that their campaign promises were merely political rhetoric designed to get them elected.

It isn’t easy being green.

Back in mid-December, during the coronation ceremonies for the newly, if not duly elected Mayor, Hizzonor Schweitzer excitedly announced the launch of his Mayor’s theme, “Making A Difference” and the new website he had designed (Green) Brea 2012 (Link abandoned).

The home page boasted, “Welcome to the site for my Mayor’s theme this year. In Brea each new Mayor chooses a theme to highlight throughout his term.” The heart warming and oh so motivating text that followed has remained the only content on the site for seven months.

We were going to have events?

On the page labeled “Events” we saw only three listed, one of which wasn’t even really an event but some sort of carbon footprint calculator. Don’t waste your time clicking on it. The results are an endless loop of the same info and graphics, rehashed and no more informative than where you started.

The Links page provides a similarly unrewarding experience… a promise that we could check out the output from our new sole sourced solar arrays — via a live feed updated every 5 minutes. Sadly, we never even got an initial report, let alone a live feed. Hopefully, the panels will not become obsolete as quickly as the website did.

Comments? No. Contact? Also no.

Unlike most blogs, which invite two way dialog between the blogger and their followers, “Brea2012” failed to provide an opportunity for open conversation, the Contact page remains totally useless, the create a login function doesn’t function and the Search box must be purely a tease, it doesn’t function either.

I suppose that doesn’t matter since there is no real content on the entire site. How Beaumanesque.

The closing comments made are, “The site is totally funded by me. No city money or staff time will be involved. Richard Nixon once said, ‘What a strange creature man is that he fouls his own nest.’ Let’s do our part this year to stop fouling our own nest! Thank you for visiting.”

So there you have it, graphic proof of how one earns a reputation for being a strong starter and a non-finisher. Might have been a good idea to follow his own advice. I wonder how long before he calls his webmaster, assuming he still has one, to yank the embarrassment out of cyberspace?

Thankfully, this überfailure was not accomplished at city expense since the Mayor promised he was paying for it out of his own pocket. I guess, thanks to that pay cut and having to return the flex benefit bonus, he ran out of green.

It worked on mugs and t-shirts.

The Mayor’s theme wasn’t a complete bust, It probably looks really cool on the mugs and t-shirts that mayors pass out at community events. (I’ll bet the city did pay for those.)

While I can’t promise you, I’ll bet if you email the Mayor (dons@cityofbrea.net) and let him know how much having one of his mugs would mean to you, he would drop one in the mail.

Besides,  they’re a great way to commemorate his final term in office and the end of the Schweitzer dynasty.

kool-aid_640POSTSCRIPT: 09/20/12 – In recent weeks there have been a flurry of faux-green announcements and proclamations feigning success at the greening of Brea.

The Climate Registry (a loose partnership between Edison and the Energy Coalition) tossed Brea a bone with their “Cool Planet” award and inadvertently disclosed that our massive solar expense is only returning a $320,000 a year savings… far from what was projected to retire the millions spent. At that rate it will take 50 years to pay it off. Any bets on how long the technology remains state-of-the-art?

And then there’s the Mayor’s “One Ton Challenge” encouraging residents to sign up and save 167 pounds of carbon emissions a month. Many of the suggestions as to how to accomplish this are laughable. This, and the “Green Life Green Brea” (make that blue skies) proposal from the City Manager are all part of this faux-green image that Brea is trying to project.

C’mon… you can do better than this!  I hope the Mayor, Mayor Pro Tem and the City Manager find time to brainstorm this while on their taxpayer subsidized vacation to Korea and Japan.

The jury is still out – Part Two

Let’s pick up from where we left off.

In his January 25th Brea Net newsletter, recapping part of the City Council meeting of June 7, council member Roy Moore wrote, “… council members Schweitzer, Garcia and Murdock knew, presumably informed by the city manager, that they were included in the executive classification, and knowingly voted themselves this raise making no reference to it during the discussion. Neither council member Simonoff nor I was aware of these facts.”

Wow, where do I begin?

I’m not a lawyer, I haven’t played one on TV and I didn’t spend the night in a Holiday Inn Express last night.

So before I launched into any wild speculations, I sent a copy of council member Moore’s newsletter to the Special Prosecutions Unit with the Orange County District Attorney.

I will say that they have been as helpful as possible considering it may be some time before any sort of formal investigation could occur.

In my mind, the fact that council member Moore felt it necessary to document the series of events surrounding the bequeathment of increased flex benefits, kicks this matter up a notch from rumor to allegation.

The biggest question remains, is what Council and/or the City Manager did regarding the flex benefits fiasco illegal or not?

How did this all get started?

Back in late 1990, Council (Blamer, Isles, Leyton, Wedin and Nelson) decided that, in addition to their modest monthly stipend, they deserved to also receive medical, dental and life insurance benefits as well.

They established a Flexible Plan (hence the lingering term flex benefits), the details of which are specified in Resolution No. 90-131.

Participation was “voluntary” but, to my knowledge, no council member then or since has not taken advantage of the benefit.

In effect, they made themselves “members” of the Public Employees’ Retirement System which required that they receive medical insurance as mandated by the Meyers-Geddes Medical and Hospital Care Act. In 1990 this amounted to another $430 a month each.

The resolution also specified that their benefits, now tied to the employees, would always be equal thereby ensuring periodic increases. And this is where it started to get real sticky. From this point forward it became almost impossible to get anyone to admit exactly what Council received as a total compensation package.

But wait, there’s more!

In early 2001 they passed another resolution (No. 01-11) superseding the decade old resolution. This new resolution detached them from the workforce employees and attached them to the Executive Managers, with the provision for matching increases still a part of the plan. Oh, and they bumped their flex benefit up to $729 a month.

Four council members voted in favor of this (Harvey, Perry, Simonoff and Moore) one council member voted against (Vargas).

[Ed. Note 02/18 – as Mr. Fullington pointed out in his comment, somewhere between 2001 and 2011 Council slipped themselves another $321 a month. Likely buried in a multi-topic Consent Item, and perhaps equally devoid of accurate accounting of fiscal impact, it may prove hard to find.]

This brings us to the June 7, 2011 meeting, the allegations made by council member Moore above and the comedy of errors that followed as Council tried desperately to do damage control.

First, council members individually requested that their raise in flex benefits be reduced from $1,600 per month back to the $1,050 they received before they “accidentally” gave themselves a raise.

Turned out this wasn’t the most brilliant approach since any one of them could reinstate the raise anytime they chose.

After discovering that the Mayor couldn’t unilaterally place an item on the agenda for discussion (he needed “approval” of at least two other members) and a lot of heated bantering back and forth, then Mayor Moore finally got it on the agenda for their December 20th meeting.

Roy pulls a rabbit out of a hat!

Mayor Moore had to call a special meeting for December 19, which he as Mayor could do funny enough. A strategically smart move on Roy’s part, as Schweitzer and O’Donnell were forced to capitulate and put the item in the Study Session agenda for the 20th.

With almost no discussion, after months of angry stonewalling, Council unanimously passed Resolution No. 2011-101, officially returning their flex benefit to $1,050 and detaching their flex benefits from the Executive Managers.

That’s not all!  Guess what happened to their $3,600 retroactive benefit?

Moore, Simonoff, Schweitzer and Garcia have all arranged to repay/return the retroactive monies they’d received. Murdock, for reasons I’m sure only he knows, has decided to keep the money.

[Ed. Note 02/18 – After this blog broke, I received a call suggesting that Murdock may have finally succumbed to public pressure and made arrangements to pay the the city back at $100 bucks a month for 36 months. I hope that’s true. What perfect timing, to retire the debt synchronous with the end of the only term he’ll have on Council.]

So, what have we learned and where do we go from here?

Frankly, we’re stuck with a lot more questions than answers. We still don’t know what was legal and what wasn’t, what was ethical and what wasn’t.

Red DiceWas failure to properly and completely disclose all fiscal impact an inadvertent error of omission in the staff report? When the error was discovered, who discovered it and why were (allegedly) only three of the five council members informed?

Was Council’s response to the matter truly in the interest of the people they serve and did it demonstrate their desire to run an open, above board and efficient city government?

Since their flex benefit is no longer tied to employees or executive staff, should it be folded into the periodic review of their stipend and be subject to the limitations in place? Of course this would eliminate the perpetual, “We make less than minimum wage.” response when asked, “How much does a city council member get paid anyway?”

I’m still waiting for the Council review and discussion of the “Goldenrod” document and Code of Ethics that has them so hamstrung they can hardly conduct business without the city manager’s blessing. Please guys, have the discussion downstairs and let the people participate.

(Note: All resolutions discussed are available for review on the city’s website. If you need help navigating the records, call the City Clerk’s Office at (714) 990-7756)