Malfeasance: Brea’s Status Quo?

In the weeks ahead, breaking news regarding several cases of fiscal misconduct will be finding their way into public discussion. The egregious nature of several will likely lead to widespread use of the term malfeasance.

Let’s take caution in our choice of words to be certain we characterize people and their actions clearly and fairly. An exact definition of malfeasance (in office) is difficult: there is no single legal consensus definition.

Malfeasance is generally defined as “a wrongful act which the actor has no legal right to do.” Many courts find malfeasance (in office) where there is “ignorance, inattention, or malice”, which implies no intent or knowledge is required.

Much of what we’ll hear, however, will probably trigger accusations of malfeasance.

Truth: the final frontier.

I’ve invested literally hundreds of hours pouring over a vast array of communications, agendas, minutes, resolutions, staff and consultant’s reports, spreadsheets and financial records from both the city and from Orange County.

I’m not alone. Several others, equally curious about Brea’s past fiscal practices and current fiscal policies, have invested similar time and energy… and come to similar conclusions.

What has been common practice in the past has cost Brea the loss of significant assets and revenue sources and has placed an undue burden upon tax payers to meet unconscionably large financial obligations well into the future.

There is clear evidence, going back several decades, of both ignorance and inattention to detail contributing to the failure of Council members to exercise the full due diligence their office and those who’ve elected them demand.

Malfeasance… I believe so. Malice… not so much. Let me explain.

I’ll point the finger…

Repeatedly it has been found that Council member’s information packets come up well short of including a full set of facts. Consistently, the missing information helps lead Council to forgone conclusions staff has predetermined are preferable.

Again and again it appears that staff has usurped the visionary role and authority of Council. While the evidence of malfeasance is frighteningly clear, at least to me and those digging into these matters, a couple of critical questions remain unanswered.

Obviously staff has the means and opportunity to play fast and loose with Brea’s financial future. What’s missing is motive. Why would our city staff, highly educated… the best and the brightest, do what they’ve done and to what end?

What’s next?

We may never find any answer to why and what for but we can cast a bright light upon this nightmare in the hopes that today’s Council will find the courage to challenge history and change the future.

malfeasance

Aftermath Of November 6th.

During a rare moment of rest and relaxation, I was browsing through the vast archives of TED Talks videos and came across this one by Heather Brooke, a freelance journalist, freedom of information campaigner and professor of journalism at City University London.

In 2005, she filed one of the very first requests under the UK’s Freedom of Information Act, asking to see the expense reports of Members of Parliament. The request was blocked, modified and refiled, and blocked again… but the years-long quest to view expense documents, and the subsequent investigation, led to 2009’s parliamentary expenses scandal. The scandal led to the first forced resignation of the Speaker of the House in 300 years.

If your oh-too-hectic-life won’t allow you 18 minutes to view something far better than the singing or dancing competition you TIVO-ed the other night, then bookmark this post and come back later when things have settled down. Here’s Heather Brooke’s TED Talk.

Okay, here’s where I’m going with this. On November 6th Brea voters approved Measure T (Accountability Act) but rejected Measure U (Open Governance Act). Frankly, if I were to have wagered on a possible split decision, I would have reversed this completely.  Here’s why…

The likelihood that most voters would wade through the details of Measure T and recognize the importance of capping runaway senior staff salaries and the perks/benefits going to council members seemed slim to me.  What happened is that the brief description on the ballot , “Shall the ordinance ‘A Measure Regarding Limits on City Administrative and Legislative Compensation Applicable to the City of Brea’ be adopted?” made the measure an easy slam dunk.

On the other hand, Measure U’s description, “Shall the Ordinance ‘A Measure adding Procedural Requirements Related to Public Records Act Requests Made to the City of Brea and Modifying Open Meeting Law Requirements Applicable to the City of Brea’ be adopted?” did more to confuse voters than clarify the initiative’s intent.

Had it said, “Provide greater and faster access to public records including more robust self search capabilities, and require that all open meetings (including study sessions) be recorded as a permanent public record of the business transacted.” Measure U might have enjoyed similar results as Measure T… but it didn’t.

Good News, Bad News.

Good. Since the initiative process on these measures began almost two years ago, the City of Brea recognized the impending democratization of information.

The availability of technology light years beyond Gutenberg’s press, a fully connected system of information management was not only economically feasible but, thanks to increased demand for full disclosure of information, was unavoidable.

Bad. The result?  Brea is in the process of implementing the Laserfiche system, likely the most lauded of it’s kind today.

Unfortunately, the search algorithms and scans available to the general public make self search about as difficult as possible.

Executing a successful document search the first time out is a little like trying to nail Jello to a tree.  The odds of one stumbling across the perfect search term are slim and none.

Instead of providing a tutorial or FAQ of sorts helping citizens find what they’re looking for, it remains extremely difficult for all but the most sophisticated researcher to find information responsive to their inquiry.

Because Measure U “failed” to pass, the door may have been left open for the city to slow down progress on implementing the Laserfiche system, or at least modifying it in a manner to make it more user friendly.

Politicians generally do not subscribe to this type of fully connected information management system.  Historically, they prefer to keep their constituents in the dark as much as possible, for as long as possible.

More Good News, Bad News.

Good.  With the passage of Measure T, Breans now have some assurance that salaries, perks and benefits will be restricted in a way to keep the City of Brea from looking more and more like the City of Bell.  Current council members and staff will be frozen at today’s levels and future council members and staff will have to adjust to the limits prescribed in the initiative.

Bad.  There are already rumblings coming from City Attorney Jim Markman and City Manager Tim O’Donnell that they will “fight” certain components of Measure T that they feel are illegal or unconstitutional.

Really? Are you kidding me?

After wasting over $80,000 taxpayer dollars to cover up their incompetence regarding election law, they’re lining up at the border to make an assault on what the Brea voters have just clearly said they want.

The originator’s of these measures have already gone on record as being willing to sit down at the negotiating table to iron out differences rather than seeing this turn to very expensive litigation to reach a conclusion.

Not the best news for Richards, Watson & Gershon’s bottom line.  Over the last 30+ years they’ve grown accustomed to milking the cash cow that is Brea.

Brea voters put it on the ballot!

Brea voters approved the measure!

Brea voters have made their desires known!

The least Council could do is adopt the measure… but they probably won’t without either cutting the heart out of it (which is illegal, see Proposition 59, November, 2004) or just flat refusing to adopt it in any form (as the council in Murietta did).

Why Measure U Should Have Passed.

Transparency in government generates accountability.  Transparency allows citizens of a democracy to control government, reducing corruption, bribery and other malfeasance.

An open, transparent government allows for the dissemination of information, which in turn helps produce greater knowledge and societal progress.

Along with having an interest in seeing greater access to information, I am also concerned about protecting citizens’ privacy so they are not exposed to negative consequences or retribution — which we’ve most commonly seen in the arrogant and dismissive attitude some council members and staff have taken with those who have spoken out against policies and decisions during “Matters From The Audience.

Anyone thinking this is over is fooling themselves.

I urge Breans to keep a wary eye on the progress of adopting the substance of Measure T and further implementing that which is fulfilling the intent of Measure U.

This is not the time to become complacent.

We should prosecute and punish official’s  for blocking full disclosure to the public, or willfully attempting to dismantle what the public has approved, with the same vigor that government persecutes citizens who dare to challenge, who dare to object, who dare to speak out.

It’s our job to exposed failings of our local political system, while pointing out the secrets of information control and censorship that lie at the heart of a city government that has operated for years without sufficient public scrutiny.

The jury is still out – Part One

On January 25th, Council Member Roy Moore published Issue 597 of his Brea Net newsletter.

In it he chronicles the events surrounding the raise Council gave themselves back in June, especially the fiasco following and the eventual reversal of that decision.

As of today, all Council Members except Brett Murdock have arranged to pay back the $3,600 they each received in retroactive pay.

To put everything I’m about to say into context, I highly recommend you first read Roy’s full newsletter by clicking the link above.

Roy Raises Important Issues.

Within Roy’s explanation of events, which I personally find to be the most credible thus far and consequently the most believable, are several important issues that have not been adequately or publically addressed.

These issues include nominally related matters being lumped together as consent items providing a convenient means of masking the serious nature of the topic, items that would be more honestly addressed independently and within formal public hearings; the continued poor, sometimes incomplete preparation of staff reports; the wrongfully diminished authority of the Mayor and Council Members, particularly in the matter of the Mayor’s managing and setting of agenda discussion items; personal and political agendas taking precedent over the will of a majority of the community.

And, finally, procedural policies and protocols that provide numerous opportunities for Council and staff to, inadvertently or willfully, commit malfeasance in the course of carrying out their duties with little or no opportunity for public oversight or intercession.

My next few blog entries will address these issues in more detail, beginning with…

The Misleading Nature Of Consent Items.

In his report Roy points out, “At the June 7, 2011 council meeting the Consent Calendar consisted of seven consent items.

The Consent Calendar is where multiple items, mostly routine, are considered and passed by a single vote without discussion.

Item 12.7 consisted of three separate elements: 1) The contract memorandum between the City of Brea and the Brea Fire Management Association, 2) salary range increases and a flex benefit increase of $450/month for city executives, and 3) part time employee salary increases.

I pulled Item 12.7 off of the Consent Calendar for separate discussion and vote.  The three elements were also separated for separate votes. Elements 1 and 3 were unanimously passed.  Element 2, after discussion, was passed on a 4-1 vote with me dissenting.”

Though it may be somewhat more convenient to consolidate similar matters, minimally discussed at study sessions, into single consent items in order to shorten meetings, the public is denied the opportunity to fully follow and understand the matters in question, to make public inquiry for clarification or make public comment to make Council aware of what their constituents would prefer.

Closing thoughts.

I believe the people of Brea would be best served if Council would put the subject of Consent Calendar items on the agenda for discussion, not at a study session but during a regular televised meeting, so that the public might weigh in on the matter. It is long overdue to revisit what should and should not be designated as justification to put an item, or collection of items, on the Consent Calendar.

Next time on Brea Matters.

Flex benefits, who knew what when and were there any ethical breaches or laws bent or broken?