When Is A Law Not A Law?

Well, it seems a law isn’t a law unless City Attorney Markman decides to give it his blessing and Councilman Vargas likes it.

At the March 20 meeting of City Council, the Consent calendar item amending the City Manager’s employment contract triggered a strong public objection to the unsupported dismissal of Measure T, passed by a majority of Brea voters in 2012 and limiting Council and senior staff compensation.

The law matters.

A half dozen or so residents decided to address Council during Matters from the Audience.

Three folks, all admittedly candidates for Council this year, addressed a Consent item about park maintenance, the homeless situation in Brea and Senator Moorlach’s recent study that put Brea fiscally next to last in OC cities.

Measure T and the City Manager contract wasn’t on the radar of any candidate for Council. Thee red flags!

The other speakers all focused in on the law, the contract, the damned good reasons the law should be upheld and the contract pulled from the Consent calendar… subjected to public hearing.

Let’s talk about the initiative process.

The initiative process is a form of direct democracy. Citizens draft a “measure” which they then propose by petition; if the petition receives sufficient popular support, the measure is placed on the ballot and can be enacted into law by a direct vote of citizens.

Unless Measure T can be shown to be in conflict with Constitutional law, it is law in Brea and enforceable.

Again, I suggest that the law is the law. Write the contract accordingly. Through negotiation, Mr. Gallardo can agree to it’s stipulations or reject them. He may also challenge them in court.

So, what the hell happened?

Let’s start here then I’ll give you a rundown of events. The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.

lawDuring the “Response to Public Inquiries” Mayor Parker, rather than pulling the City Manager Contract from the Consent calendar (Item 18) as had been requested by several residents, allowed the City Manager to defer to comments from the City Attorney.

First came a brief and mostly unintelligible description of the amendment to the City Manager Employment Contract Agreement, which had received substantial objections, mostly centering around the restrictions imposed by Measure T. Then Mr. Markman jumped into a rationalization of why the law approved by Brea voters in 2012 has been largely ignored.

“(The speakers) are blasting something that was done very carefully, in public… you will recall that when Measure T was adopted it was our obligation to analyze it because some parts of it we saw were obviously valid and had to be implemented… like the health benefits being deprived from the Council… some of the other provisions we didn’t think, for various reasons, were enforceable or valid…”

Let me stop you right there Mr. Markman. As you pointed out, Measure T was adopted. A majority of Brea voters passed Measure T with the intent that it become law. Not unlike when they voted to establish a paramedic service… and we know what a fiasco that has turned out to be.

Your obligation, Mr. Markman was to implement the wishes of the voters, NOT analyze it. Who is the “we” you mention that decided some “provisions we didn’t think… were enforceable or valid” – you and Tim O’Donnell?

Because another unnamed city has let a similar initiative languish without implementation is not a good reason why Brea should mirror the same groundless behavior. They, whoever that is, were wrong… ergo you were wrong.

Mr. Vodhanel, during “Matters,” clearly described the history of unsound counsel that cost Brea nearly a million dollars in unnecessary legal expenses… half of which ended up in the RGW coffers.

Any chance you’ll be giving that back?

I don’t care what “thoroughgoing presentation with PowerPoint” you gave Counsel in 2013. If it’s intent was to dismiss a law demanded by Brea voters it was just one more sample of unsound counsel.

I don’t care that you attempted and failed to “negotiated with Mr. Vodhanel directly to try to get some sort of compromise resolution.” Once Brea voters made their wishes known, the original proponent placing the measure on the ballot was no longer in the gunner’s seat… amending the law should be done in a manner that, again, gave Brea voters a voice.

Arguing on behalf of the amended contract.

Now Mr. Markman’s comments, having successfully dismissed any relevance of Measure T or the Brea voters who approved it, turned to yet another prattling of legalese, the sole purpose to rebuff the law and dismantle every objection to Mr. Gallardo’s amended contract.

At what point did the City Attorney’s job description add the responsibility of playing agent for the City Manager? Take your “show me the money” propaganda Mr. Markman and stick to your job description.

Vargas jumps in… puts both feet in his mouth.

lawCouncilman Vargas interrupted the normal flow of the meeting to interject comments relative to Item 18, without objection from Mayor Parker. Totally inappropriate.

With no motion on the floor to approve the Consent calendar or to pull Item 18 for individual consideration… this was little more that grandstanding.

“I would like to make a couple of additional comments on Item 18 without pulling it as I’m prepared to support this Consent calendar.” Vargas said. No objection from anyone on Council. Wimps. Are you really that susceptible to being bullied by someone you all know is in way over their head?

After claiming to be the biggest and most vocal proponent of Measures T and U, Councilman Vargas cites some piece of correspondence from an anonymous woman to allow him to springboard into putting his two cents in without challenge. Anonymous? Put this mystery letter into the public record so we can all see it. No need to redact anything… it’s anonymous!

First, he squashed the four mile limit claiming the city would have to spend large sums for moving expenses and the provision of a silent second. Whoa Mr. Vargas!

A silent second is a type of second mortgage loan that is part of a home sale transaction without the knowledge of the first lender. In most instances, silent second home financing is a form of fraud and thus highly illegal.

Right, wrong or otherwise… Councilman Vargas seems to have dismissed any possibility for further negotiation with the City Manager.

But wait… there’s more!

Councilman Vargas then addresses the limitations to the contract imposed by Measure T and Council’s amending the term from three to five years… which requires explanation, to be sure.

Vargas points out that the City Manager is waiving a 3.2% salary increase, driven by a provision in Measure T for an automatic adjustment of 10% higher than the next highest employee. “I never liked that provision… it was put in long ago and I don’t like it.”

Your use of the unilateral dismissal strikes me the same way,” it was put in long ago and I don’t like it.” Okay Mr. Vargas, you’ve used up all of your unilateral overrides and embarrassed this community enough. What you like or don’t like has no bearing on the law or it’s enforcement. What a preposterous idea.

If, one day, you decide you don’t like the speed limit on Birch Street will we be dodging your big red pickup? If you decide you don’t like laws prohibiting driving under the influence can we expect to see that big red pickup weaving in and out of traffic… putting lives at risk?

You may say that’s just silly… but your rejection of a law adopted by Brea voters on a whim is just as silly. Maybe even more so.

Badda-bing… badda-boom.

With that, Councilman Vargas moves to approve the entire Consent Calendar, someone mumbled a second (we’ll need to see the minutes to determine who it was), there was no additional discussion from any Council member and the whole list was approved – badda-bing… badda-boom.

If that weren’t enough, fast forward to Council Announcements and the only one to speak is Mayor Parker. Unwilling to quash the inappropriate remarks of Mr. Vargas earlier, he launches into his own remarks after the horse is well out of the barn.

Citing that Council is only capable of doing the great job they do because they’re able to hire the very best employees to support them. He continues suggesting it’s Brea’s ability to be salary competitive that brings us “competent and effective” staff we have.

How’s that been working for you Mayor Parker?

Mayor Parker concludes his four minute unsolicited, unnecessary and unwanted comments with an effusive back patting and rationalization session.

Please… don’t let me see his name on the ballot ever again. Not even for dog catcher.

 

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Voters Sweep Brea Clean!

Operation Clean SweepA week ago today, Brea voters and Operation Clean Sweep succeeded in rebooting City Council! Welcome and congratulations to Cecilia Hupp, Steve Vargas and Glenn Parker. Your convincing win confirms that Brea voters, eager to turn around a floundering Council, see something in you they like.

To whom much is given, much is expected. Simply put, privilege brings responsibility and that responsibility entails accountability. Now is the time to set aside personality conflicts and petty grievances. Too many serious issues are tucked into your information packets and need your undivided attention.

Brea Matters (Voters) Wade In.

While waiting for the dust to settle and the provisional votes to be tallied, I invited Brea Matters readers (voters) to tell me how they see the issues stacking up. Thanks to all who took the time to share their thoughts. Here are the top three issues.

Unfunded Pension Liability.

The small contribution now required of new hires, bolstered by similar changes in state regulation, have slowed the rate of debt increase… slightly. The escalation of unfunded debt has neither been reversed nor solved.

The problem is still our largest fiscal nightmare. You will not be able to nudge pension reform into existence. Nothing less than sweeping change, with the full participation of the beneficiaries, will address this issue.

Water, The Currency Of Tomorrow.

The drought is real. This chronic shortage is effecting more than shorelines. It is the catalyst behind Brown’s Measures 1 and 2. The real effects of their passage will likely come as a shock to voters who cast their ballot in favor.

Our tiered water rates, still on the back burner awaiting the San Juan Capistrano decision, will be pulled to the front burner when the state’s budget based water rates enter the discussion. Brea is already giving the state detailed monthly water consumption data.

Once the camel’s head is in the tent it’s ass is soon to follow. The state will insert itself into the water business and it won’t make more water available or lower your rates.

With Silver Bells And Cockle Shells.

On a semi-related note, the drought tolerant demonstration garden rushed to approval a few weeks ago enjoys zero public support. None. Nada.

Beyond a small consulting contract, no other handcuffs exist. No RFQ has been drafted or circulated. No bids have been submitted, reviewed or approved.

Put the garden back on the agenda. Recognize it for what it is, a boondoggle. A complete waste of a quarter million dollars. Reverse the original decision. Terminate the project. Fix the leak in the subterranean parking using the Building Maintenance Fund.

Fracking, A Black Hole Of Deception.

The most significant missing component in fracking’s risk/reward equation is truth.

Truth about water, how it is combined with which chemicals or acids, where it comes from in the first place, how it is handled during the process and where it goes when disposed of. Truth about noxious fumes. How much methane and other hazardous gases are really escaping from wells, how far might they travel in the air, what are the risks of exposure or inhalation?

Truth about potential failure of equipment or of human error. Truth in documentation, willingness to be subject to regulation, oversight and enforcement of noncompliance or infraction.

Council may be comfortable, for whatever reasons, peeking through the wool pulled over their eyes… but a significant number of Breans do not share their complacency. They’ve read about thousands of incidents, from unfortunate to catastrophic, where people’s health and safety was put at risk, where the environment was put at risk, where seismic concerns grew exponentially over just a few years.

What we don’t know could kill us. That is not Chicken Little screaming, “The sky is falling!” That is not some conspiracy theorist’s attempt at scare tactics. That is the unvarnished truth. Until we know more, until oil companies are more forthcoming, until regulatory agencies are able to oversee the industry without having their hands tied by state and federal intervention… the smart thing to do is put a moratorium in place.

A Laundry List Continually Overlooked.

These “lesser” more procedural issues will sound familiar. Why? Because they’ve been at the center of campaign promises, half-hearted studies by overpaid consultants and counterfeit community conversations for years. They are in no particular order.

  • Inattention to public comment during Matters From The Audience.
  • Disregard of public comment during Matters From The Audience.
  • Growing abandonment of meaningful public hearings.
  • General lack of transparency and accountability.
  • Too much business conducted in study session.
  • Too many items buried on the Consent Calendar.
  • Failure to faithfully implement Measure T.
  • Runaway senior staff salaries and the ten city survey.
  • Satisfactory resolution of former RDA projects.
  • Consistent and equitable support of the business community.
  • Traffic congestion.
  • Open discussion of possible public safety JPA’s.
  • Declining senior services.
  • Street sweeping citations.
  • Decline of Lagos de Moreno Park.

A Show Of Good Faith.

Pass an ordinance limiting political/campaign signage to a maximum of 500 square inches and a display period, on public and private property, no more than 90 days prior to the election. Pass a resolution limiting campaign expenditures to no more than $10,000, campaign mailing pieces to no more than two. Pass a resolution limiting Council seats to no more than two terms.

Do the right thing. Without your honorable preemptive resolution of these issues, please believe that the public is willing and able to gather the necessary signatures and put them on the ballot.

In Conclusion…

Arguably the most disconnected, delusional, Council member in recent history was held accountable for his lack of performance and overwhelmingly denied reelection to a second term.

Members of Council, this is meant as a reminder, not a threat. Brea voters have extended to Council members, new and old, the privilege of representing their best interests. Expect to be held accountable.

 

Markman & Murdock’s Sour Grapes Reactions.

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Sour grapes anyone?

Tuesday’s (03/04) “Matters From The Audience” found the Mayor and City Attorney spouting sour grapes over the recent loss handed to them by the California Fourth District Court of Appeals in the Vargas v. Balz litigation.

In response to a closed session item reviewing the case, Brea resident Connie Lanzisera (click to read transcript) clearly laid out the reasons why Council should slam the door on this and put a stop to the runaway legal expenses. In brief, they are:

  • The appeal was neither moot nor frivolous. Though the election had passed, the larger legal issue remains and the law deserved to be clarified for elections officials state wide. The city’s objection was dismissed and the appellant’s claims confirmed.
  • The court ruled that the City Clerk violated election law, twice. Any doubt that there were unlawful acts committed has been removed by a panel of judges.
  • The court’s opinion pointed out that the city refused to follow the law, ignoring requests to correct their offense at a point where resolution would have cost the city nothing. This brings into sharp focus the arrogant disregard for the law that seems to have become an embedded part of city management.

Lanzisera closed saying, “We can think of no rationale that would justify the city to pursue a further appeal.” I agree wholeheartedly.

Markman rants.

Sour Grapes

In response to Ms. Lanzisera’s comments, City Attorney Markman (click to read transcript) praised the judicial system then immediately said it was wrong.

Markman, though unable to produce evidence supporting his position, once again pretended that the City Clerk acted prudently. He forgot to mention she was operating under instructions from him and/or City Manager O’Donnell.

History proved otherwise.

Council Member Moore stated, in the special meeting Markman mentioned, his discomfort with delegating writing duties to Schweitzer and Murdock (who had already, prematurely, prepared arguments laced with character assassination) and giving up his right of review and approval. He abstained when the matter came to a vote. Simonoff was out of town but had registered his objections to what had already been penned.

Not long thereafter, Moore came out in favor of Measure U – The Open Governance Act and opposed Measure T – which, amongst other things, imposed salary limitations for Council and senior staff.

Clearly there was never unanimity within Council, precisely the illusion that was perpetrated by instructing the Registrar of Voters to print on all election materials the signatory implying that arguments and rebuttals against the measures had the support of the entire Council.

If this isn’t illegal electioneering, what is? How does the FPPC miss something like this?

Precisely the issue addressed by the Court of Appeals and why they thought it best to clearly warn election officials that this sort of behavior, long prohibited by law, will not be tolerated and may be litigated after the fact.

Markman still ranting.

Markman contended that the city defended in good faith (while running up a $200,000 legal bill) though he completely dodged having had multiple opportunities to settle the matter outside a courtroom and for zero cost to tax payers. He did admit that he never thought the money was well spent.

Maybe if he had given Council one chance to wade in with their opinion, we wouldn’t have flushed so much money down the drain.

Murdock whines.

sour grapesIn typical “ready, fire, aim” style, fueled by his embarrassment I’m sure, Murdock interjected, “Mr. Markman, to clarify, who filed the appeal?” Markman named Vargas and, again hinted at proponents of the measures.

Murdock then added, “And that appeal was filed after the election was long over, correct?” Again attempting to misdirect the public into believing the appeal had been moot though the Fourth District Court of Appeals clearly thought otherwise. A complete smoke screen and sour grapes again!

Adding insult to injury.

One must remember Murdock repeatedly reminded voters of candidate Vargas’s “costing the city so much” during the campaign, when it turns out the city bears the blame for driving up legal fees.

Line this up with Murdock getting sanctioned and fined $2000 by the FPPC (California Fair Political Practices Commission) for his undisclosed leadership of the Breans Against Measures T & U PAC.

I find this sort of behavior childish, sociopathic and vindictive. The unabashed willingness to spread half-truths and outright deceptions, to unfairly drag an opponent’s name through the mud, has become commonplace in the political arena.

Markman puts a lid on Murdock’s cheeky comments.

lawyerMarkman, “We raised the point of mootness with the Court of Appeals… they didn’t agree. We’re not going to sit here and retry it or whine about a court decision in this system.”

It’s a very rare moment when Markman and I are in synch. This was certainly one of them. Putting Murdock in his place will go down as one of my favorite Council moments.

I’m hoping Markman also had the good sense to point council away from perpetuating this in any way. This is the epitome of a lose-lose situation and we can ill afford continued expense or public embarrassment.