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

 

Brea Envisions: Tour de Farce.

EnvisionsBrea Envisions will be holding a joint “working session” with City Council this evening, Thursday, June 22 at 6:30 in Community Rooms A & B on the second floor of the Civic Center. When the news broke yesterday (no one saw any public notice) there was widespread confusion.

First of all, what the heck is a “working session” and after over two years, why is this such a rush? How much work is left to be done? The project is seven or eight months behind schedule and now there’s a panic to wrap it up?

Council information packet.

If you have the energy, you can download the attachments (126 pages) that are in Council’s information packet here: ENVISIONS or, let me share with you what I found when I went through everything, page by page, last night and early this morning.

Here’s what you’ll find.

Appendix A – Phase 1 Open Ended Data Tables: A 25 page disjointed document that tries to capture the anecdotal comments in the original online survey. Remember, it was available in one form or another for over two years.

Originally budgeted/funded in December 2014, the online Envisions website survey ran from early 2015 through May 26, 2017… almost 26 months. The Envisions website survey collected 716 participants. They were presented with 20 multiple choice questions and a variety of anecdotal opportunities.

The average response to the multiple choice questions was 307, or roughly 43%. Over half of those taking the survey, 57%, chose not to answer many of the questions! Consequently, with a response well below any credible statistically projectable number, Envisions makes no effort to tabulate or analyze them.

Appendix A’s fractured, unwieldy design renders it virtually impossible to review or understand the anecdotal half of the survey. Suffice it to say Appendix A is neither data nor is it particularly useful. No wonder the consultant budgeted at $200,000 was dismissed, replaced by other staff driven alternatives.

Remember those Envisions workshops?

It seemed that at every other Council meeting there was some strange “progress report” from Envisions, not that any progress was actually being made. They always ended with an invitation to drop by their next exciting open house to “join the conversation.”

Appendix B – Think Out Loud and Open House Results: 28 pages of brief comments collected at nine table-top events. On two occasions the number of participants were reported as 10 and 6 respectively, no tally was provided for any other events. Here’s the list of exciting workshops.

  • Think Out Loud Thursday (July 28, 2016) – 10 Respondents
  • National Night Out Data (August 2, 2016) – Number of Respondents not Identified.
  • Think Out Loud Thursday (August 4, 2016) – 6 Respondents
  • Open Houses at Community Center (August 4 and 25, 2016) – Number of Respondents not Identified.
  • Open Houses at Sports Park (August 11, 2016) and City Hall Plaza (August 25, 2016) – Number of Respondents not Identified.
  • Brea Fest (August 19, 2016) – Number of Respondents not Identified.
  • National Night Out Data (October 14, 2016) – Number of Respondents not Identified.

Again, not data but a collection of bullet points captured on post-it notes under a wide range of topical questions. As with Appendix A, the information is not presented in a manner that makes it easy to absorb or understand.

Batting cleanup: True North Research.

Early last month an email from City Manager Bill Gallardo circulated to random Brea residents. It ask recipients to go to an online website and complete a new survey. Envisions was not mentioned at all, which is strange considering how they plastered the city with their stuff.

Here’s the almost funny part. The project, done with True North Research, was a Planning Department effort and they never ask for the City Manager’s review or approval. When ask about it, the City Manager had no clue what I was talking about. (Some ears are burnin’ down at city hall right about now.)

Envisions

2011 O’Donnell Survey

You’ll remember True North from those glowing report cards Tim O’Donnell sent to himself every time he wanted to lean on Council for another raise.

The similarities between the 2011 Report Card and the 2017 Envisions Summary Report borders upon plagiarism except True North is copying themselves.

They did all the hard work years ago and now just do a “save as” and plug in new numbers. A couple hours of creative editing and voila! A whole new report! I hope we got a huge discount on their fees.

Appendix C – Top Line Results: A breakdown of 730 survey responses gathered by True North Research using two methods, 1) Online survey promoted with email from City Manager and 2) random telephone surveys. I’m sure they had to add the phone surveys because the web survey drew such minimal response.

Envisions

2017 Envisions Survey

Information gathered covered Basic Demographics, Quality of Life, Strategic Civic Issues, Land Use and City Communications.

For each question responses are tabulated using a percentage of responses format for which there is no guide for extrapolating relevance.

Anyone attempting to review the report would only be able to speculate what the responses meant.

The ever popular strategic plan.

Brea Envisions Community Strategic Plan (Draft June 22, 2017): This is the only document mentioning the Brea Envisions Committee (page 27), 16 members of the community tasked by City Council to oversee the execution of the information gathering process and production of a final strategic plan.

As has been noted from the beginning, the Envisions process was orchestrated by the Planning Department with occasional review and approval by the committee. Brea Envision was, without question, a Planning Department project with limited committee input.

If the committee were actually carrying out Council’s mandate, they would have selected a chairperson, kept minutes and reported more regularly to Council. Didn’t happen.

They were discouraged from taking full responsibility because Planning was reluctant to give up control.

The document is anything but a strategic plan. Most of the first half of the document is devoted to validating the project and it’s execution.

The balance is founded on perpetuating Envisions information gathering in perpetuity. Defined as an “outreach culture facilitating the continuous flow of information among all parts of the community” they want to stick us with the Envisions concept forever.

While a wide variety of broad guidelines and recommendations are provided in this document, there is no resemblance to any strategic plan I’ve ever seen.

Here’s the “who cares” part.

If the level of response Envisions has attracted over the last two years is any indication, the only folks who give a rip about this sort of fool’s errand are the handful that drank the Kool-Aid on day one and those of you that have read this far down the page.

Envisions has been classic GIGO, garbage in, garbage out, project. The good news is we probably spent a lot less than the $200,000 originally estimated. The bad news is we’ve put off updating the General Plan and several other truly strategic operating policies for two years.

Whether it’s job security, resume or pension padding, overtime, busywork, inefficiency, inexperience or incompetence… this sort of thing needs to stop. We can’t afford to direct funds away from critical human services and pubic safety just to do happy projects and focus groups.

Envisions

Televised, broadcast, archived?

While Council chambers underwent remodeling, meetings were held in Community Rooms A & B… where tonight’s meeting will be held. I can think of no reason or excuse why the meeting will not be on cable and streaming live tonight. This may be a “special” meeting but it certainly isn’t an emergency.

I’m Mad As Hell, And I’m Not Going To Take This Anymore.

Mad is an understatement. Having pressed for answers, reasonable explanations and an understanding of how local government works I’ve come to a conclusion. It doesn’t. At least not in a way that most voters have hoped it would.

Let me share again former City Manager Tim O’Donnell’s favorite definition of leadership, “Leadership is disappointing your constituents in increments they can absorb.” That made me mad as hell the moment I heard it. Hearing that launched Brea Matters and kept me going every time a door was slammed in my face as I sought the truth.

How many times have you been disappointed by something Council has decided, that a Commission or Committee has recommended or that staff has suggested? How many times have you let it slide only to find yourself disappointed about something else just days or weeks later?

See, it works. They know it works. They know they’re able to bend a rule, break a law or violate an ethical standard with little or no concern that they might be held accountable. That makes me mad. It should make you mad as well.

Maintaining public records.

Recently, Planning Staff admitted to deleting documents, a consultant’s proposal that pointed out an error in Staff’s thinking. It wasn’t what they wanted to hear or felt the Planning Commission had a right to hear. The City Attorney said they were within their authority and the matter was swept under the rug.

When this loophole in the city’s Records Retention Schedule was pointed out by Brea Matters, members of Council demanded that the loophole be closed. Then another discovery was made.

The Records Retention Schedule, unchanged since the last millennium, was updated by the City Clerk last year and submitted to the City Attorney for review. It had sat there collecting dust until Council’s demand brought it to the top of the pile.

Still, nothing has been done. “Leadership is disappointing your constituents in increments they can absorb.” Dammit, I’m mad as hell.

Amending municipal code.

On September 28, Councilmember Vargas invoked an obscure, never before used, piece of the Brea Municipal Code and, without warning or prior notice, “fired” me from the Planning Commission (see details here). He citied causes not included in the municipal code.

Several months of haggling with the City Manager and City Attorney finally got me a face-to-face with the Mayor and Mayor Pro Tem on January 9 where I laid out my “case” that Brea Municipal Code inadvertently violated my Constitutional due process rights.

I had no interest in litigation. None. Still don’t. All I hoped for was to help initiate a change in the BMC that would protect the Constitutional rights of my friends and neighbors who might one day consider volunteering for a Commission or Committee… that would protect them from the sort of incompetent conduct I was subjected to.

A month later I was informed by the City Manager that the City Attorney had been instructed to draft amendments to the BMC, eliminating the due process issues, and that the amendments would be given to Council to approve within the month. That was February, this is June.

On three subsequent occasions I was told that the amendments would be on the agenda in the next meeting or two. I fully expected to see the item on this week’s agenda. Nope. Nothing. “Leadership is disappointing your constituents in increments they can absorb.” Again, I’m mad as hell.

City Hall priorities.

On April 7 I published a blog headlined “Corruption’s Partner Is Our Own Indifference.” The admonition expressed was clearly made towards Brea Matters readers with the reminder that our continued indifference to what goes on in city hall is the catalyst from which corruption is born. The word corruption never again appears in the piece.

The City Attorney, I’ve been told, read that word and went ballistic.

Over the next six days, the City Attorney and staff conducted legal research, wrote an eight page memo to the City Manager, City Council and others (more like a manifesto obviously pointed directly at Brea Matters) and engaged the city’s Marketing Department to see that it was circulated on social media to the broadest extent possible.

Six days. Not six months… six days! They’ve been sitting on the Records Retention Schedule for almost nine months, on the BMC amendments for five months but they can somehow fire off a memo attacking Brea Matters in six days?

Who’s setting priorities down at city hall? “Leadership is disappointing your constituents in increments they can absorb.” I think I have every right to be mad as hell.

A call to action.

Council reads Brea Matters. Faithfully if not supportively. So I’ll take this opportunity to make a couple of suggestions.

Please, with all the authority you can muster, instruct the City Manager … once again, to tell the City Attorney to get off his ass (sorry Gramma). Obviously unable to determine which assignments should take precedence over others, it’s time to step in and retake control.

Please, take a look at how long it’s been since Council and the City Manager made any attempt to confirm that Richards, Watson, Gershon (RWG), and more specifically James Markman, are Brea’s best choice as City Attorney. Maybe it’s time we sent out an RFP for City Attorney to see if there might not be better choices for Brea.

Still mad as hell.

One more time, let me remind everyone. Leadership IS NOT disappointing your constituents in increments they can absorb. Here are a few thoughts that do a better job of defining leadership.

“If your actions inspire others to dream more, learn more, do more and become more, you are a leader.” — John Quincy Adams

“Leadership: The capacity and will to rally people to a common purpose together with the character that inspires confidence and trust.” — Bernard Montgomery

“Leadership defines what the future should look like, aligns people with that vision, and inspires them to make it happen, despite the obstacles.” — John Kotter

“Leadership is about service to others and a commitment to developing more servants as leaders. It involves co-creation of a commitment to a mission.” — Robert Greenleaf

What sort of leader do we want?

I believe we want leaders who create an inspiring vision of the future, who motivate and inspire us to engage with that vision and who have the skills to deliver that vision.

Write that down in big bold easy-to-read letters. Stick it on your fridge where you will see it every day. When election day rolls around again… remember it.