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

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