City Clerk Violates Election Law, Twice.

Violates election law - Kathleen E. O'Leary, Presiding Justice, William F. Rylaarsdam, Associate Justice and Richard D. Fybel, Associate JusticeSo says the California Fourth District Court of Appeals (Kathleen E. O’Leary, Presiding Justice, William F. Rylaarsdam, Associate Justice and Richard D. Fybel, Associate Justice) in their ruling published on Friday, 02/21/14. Though twice given an opportunity to correct an error in filing of ballot arguments, Brea’s City Clerk, under instruction from the City Attorney, secretly ordered the ballot signatories changed, which violates election law.

Coincidentally, one of the ballot issues, Measure T, sought to promote greater transparency in government.

Follow the money.

Violates election law - Brett MurdockWhat could have been handled in a moment, with a simple phone call or email, at no cost to the city, turned into a  debacle that has drug on for almost a year and a half!

Last September, when the City of Brea made a motion to dismiss the appeal, the Orange County Register quoted then Mayor Pro Tem Murdock who claimed, “This is a very sad waste of taxpayer money, the hypocrisy is sad.”

  • This from the guy who called the suit frivolous, moot even, though the City Attorney said it was “triable” and the Appeals Court’s final decision proved the original complaint was anything but frivolous.
  • This from the guy who failed to disclose his leadership of the Breans Against Measures T & U PAC, was found guilty and sanctioned/fined $2,000 by the FPPC.
  • This from the guy who represents himself as an attorney yet tries to excuse his FPPC fine by stating, “The law is esoteric and broad.”
  • This from the guy hanging his shingle all over town, desperately trying to get a law practice off the ground.
  • This from the guy who thought it was okay to give himself a raise then fought to keep the issue off of the agenda for over six months.
  • This from the guy who thinks it’s okay to spend several thousand taxpayer dollars to join his buddies on an all expenses paid vacation to South Korea and Japan.
  • This from the guy who has no clue how the City really spends it’s money or if it does so wisely (remember his gross inaccuracies regarding Brea Fest finances?)
  • This from the guy who’s first public act upon taking office was to suggest reducing the time allowed for citizens to address the council during Matters From The Audience from five minutes to three.

Violates election law - James MarkmanBrea Matters reported on this in detail – “Legal Fees Or Legal Fiasco?” In simple terms, here’s how the finances settle out. The City of Brea has spent almost $200,000 in legal fees with Jim Markman’s firm Richards, Watson & Gershon, authorized by City Manager Tim O’Donnell, to mitigate a complaint that could have originally been handled for nothing.

Zip. Nada. Not a penny.

Who really violates election law?

Violates election law - Tim O'DonnellIn all fairness, City Clerk Cheryl Balz works in an oppressive environment and doesn’t enjoy the autonomy afforded most of her peers. Council should have been in charge, choosing how to respond to the notice of error and deciding whether the threat of litigation outweighed the city’s embarrassment for the violation of election law. Certainly they wouldn’t have allowed it to occur twice!

Contact any member of council. Ask them if they were consulted on any of this, if they’ve seen and reviewed the many payments made to Richards, Watson & Gershon over the last year and a half.

Ask any of them if they’ve were given an opportunity to clarify costs, challenge expenses let alone approve them. I’ll bet the answer is, “No, I’m shocked!” They should have been in charge and they weren’t.

That’s not the half of it!

Actually, it is. The decision also allows the appellant to recover costs, so you can just about double that figure. This arrogant disregard for election law, what I believe was incontrovertibly a vindictive effort to publicly discredit a legitimate candidate for Council, will cost Brea taxpayers in the neighborhood of $400,000.

But, it’s not just about money.

Not only did the City Clerk violate election law by modifying the signatories, “the city clerk further violated the Elections Code by failing to make those changes publicly available.” (G047591 – (Super. Ct. No. 30-2012-00585496). If you care as much as we do, you can read the full decision here Appeals Court Opinion.

Twice warned, twice ignored, these actions have now established precedent statewide. The City could launch one more challenge in the courts. If you’ve read the Court of Appeals opinion you’ll realize there is no wiggle room left. Council must not allow O’Donnell and Markman to again commit such a hubristic act. If they do, a wholesale recall would be the only sensible action left Brea voters.

Every city clerk across the entire state will no longer be free to play loose and easy with election law. Come Monday morning, you can bet correspondence on this will be colossal.

Why such a big deal?

Because issues like this are tied to current elections and violations can easily elude detection as the transgression occurs outside of the public view and the election will have occurred before a meaningful review can be made.

It’s like a child stealing cookies when no one is looking, eating the evidence before they’re found out, betting that the missing cookies will likely not be discovered until well after dessert.

In this case, their best friend caught them in the act, suggested they put the cookies back before getting in big trouble and their choice was to arrogantly disregard the warning, believing they were too smart to get busted.

In this case it was fortuitous that the proponents of Measures T & U, because they were part of the statement and rebuttal process, were in a position to make early discovery.

The city claimed the clerk was merely correcting a typo to reflect the intent of Council, however the court determined that the city provided no evidence to prove the city clerk had any awareness of Council’s intent. In fact, if the Council, for the most part, had little or no knowledge of what was really unfolding… what intent could they possibly have had?

So, what the hell did we spend nearly $200,000 on? Excuse me, $400,000.

The court clearly states that even had they found the complaint to be moot, which they didn’t, the issues raised were of broad importance and capable of recurring. Even though the election was already behind us, the court denied the city’s appeal to dismiss.

Where do we go from here?

A good start would be to take a long hard look at the incumbents and candidates in the upcoming election. The impostors posing as knowledgeable fiscal conservatives should be outed and removed from consideration.

Next, we should drive home the point to Council to start making smarter choices that keep us out of harms way, out of the courtroom.

If this Madrona nonsense lands us in court, and it seems inevitable it will, I hope O’Donnell, Markman and the City Council all hold the appellants, Bev Perry and Glenn Parker (candidate in 2014?), as accountable for causing major legal expense to the city as they did Mr. Vargas… who has been fully exonerated as far as we’re concerned.

Vargas 1 – Brea 0

Game over.

 

Legal Tactics Called Bait And Switch.

The 10/27/2013 Orange County Register, under “Our Town – Brea,” published the following: (Reprinted here because many of you object to the OCR’s paywall which blocks you from reading articles via links shared here and elsewhere.)

Amicus brief: Ballotpedia, a non-profit group that disseminates information on elections, and California Aware, which tries to improve agencies’ adherence to laws, have filed an amicus brief supporting ex-Councilman Steven Vargas in a court case against Brea over the validity of City Council authored rebuttals to 2012’s Measures T and U.”

What is an Amicus Brief?

Lady-JusticeAmicus Curiae, “… a phrase that literally means “friend of the court” — someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.” – William H. Rehnquist.

Ballotpedia and Californians Aware believe they are effected by the court’s decision and have filed an Amicus Brief, formal arguments with the court.  The decision on whether to admit the information lies at the discretion of the court.

I believe the brief presents a strong defense of the claims made in the litigation by Vargas. Clearly, the City ignored the letter informing them of their error and chose instead to disregard the law and bear the costs of the litigation that followed.  The whole matter could have been handled, without heavy legal fees, simply by adhering to the law when their error was brought to their attention.

Amicus Brief’s Conclusion.

You can read/download the full Amicus Brief here, or be satisfied by reading it’s concluding content.

“The fact that one of the present measures involved caps to the bait and switchers’ own salaries should raise an eyebrow of skepticism regarding any actions not completely compliant with the Elections Code. The City of Brea whether honest or nefarious in its mistake should not be permitted to swap signatories after the review and challenge period passed.

This Court must ensure that all entities play by the rules as clearly laid out in the Elections Code.  Section 9283 is crystal clear that the ballot arguments need to be signed by whoever authored them and § 9295 provides the only means to correct a ballot argument during the review period.  This was not followed by Respondents and this Court cannot allow a City to follow a different set of rules.

For the foregoing reasons, Amicus respectfully requests that the decision of the Court below be reversed in a published opinion that clearly holds a City is beholden to the exact same set of ballot argument requirements as every other person or entity.  Amicus requests that the City’s signature box bait and switch is not allowed.”

Throwing good money after bad.

tim_2aMy last blog post, Legal Fees Or Legal Fiasco? (scroll down), will give you a perspective on the $154,000 O’Donnell has paid Markman’s firm and how outrageous these fees are in relationship to the work provided.

At a recent Council meeting, Brea resident Don Parker, made a reference to the City of Bell that drew a heated critical response from Markman.

jmarkman_bContrary to the rules governing conducting of public meetings, our City Attorney was neither asked for, nor did he offer a legal opinion.

Pretending he was the 7th member of Council, he blurted out a personal opinion that has no business being expressed while he was involved in the performance of his duties.

Whether discussing the recent unapproved spending of millions of dollars on water shares, the unsanctioned spending of public funds for private travel, the unchecked and rapidly escalating legal costs incurred to cover up a violation of the Election Code, the inadvertent approval of raises Council gave themselves or the brazen disregard for the law that resulted in a member of Council receiving a $2,000 fine from the FPPC for violation of Election law… the common thread is quite apparent.

RRizzoThe loose management style relied upon to run the city, compounded by the obvious lack of transparency and a history for sweeping matters under the carpet, leaves Brea susceptible to the same abuse of power and authority that led to the disaster in Bell.

Is Brea another Bell on the way to happen?

I’m not suggesting that anyone is currently engaged in illegal activities.  I’m saying that the door has been left ajar and that opportunities are ripe for an unscrupulous individual or group to get away with serious larceny.

We need to replace Brea’s less than thorough policies and management guidelines with a set of rules ensuring that opportunities for corrupt activities is virtually zero.

 

Legal Fees Or Legal Fiasco?

Today’s Orange County Register article, Legal Fees Climb As City Fights Election Lawsuit closed with this comment, “This is a very sad waste of taxpayer money,” Murdock said. “The hypocrisy is sad.”

Murdock MPT 2This from the guy who failed to disclose his leadership of the Breans Against Measures T & U PAC… and who was sanctioned/fined $2,000 by the FPPC for it. This from the guy who thinks it’s okay to spend taxpayer money to join his buddies on an all expenses paid vacation. This from the guy who has no clue how the City really spends it’s money or if it does so wisely.

While the article about the lawsuit and subsequent legal fees is essentially accurate on most counts, I believed there was a need for some serious filling in of the gaps. This morning I had a lengthy meeting about this with Chris Haire, the OCR staff writer, and, for the most part, he understood where I was coming from. When the final appellate decision is rendered, watch for Chris to cover it… early next year I’ll wager.

Was the legal expense absolutely necessary?

In a word, no. The city was informed by letter of their alleged violation of election law, the forbidden alteration of documents submitted to the Registrar of Voters, with more than sufficient time to rectify their error, at no cost.

tim_2aI guess the City Manager and City Attorney felt there was no reason to respond. I don’t know how you would describe this conduct, but I call it arrogant and inappropriate.

This wasn’t a simple typo folks. It was a purposeful alteration of the true attribution of statements opposing Measures T and U. Leaving off the name of none other than the guy who got fined for hiding his connection to the PAC opposing Measures T and U. Coincidence?

The smoke and mirrors continues.

Portraying the case as moot and again pointing the finger at Steve Vargas as the cause of this expensive legal battle, City Attorney James Markman craftily redirects attention away from himself and the huge fees his firm has charged the city to handle the case.

Personally, I don’t believe either the casual dismissal of the suit’s significance or the continued character assassination of Mr. Vargas to be right or true.

Let’s take a closer look at the fees.

jmarkman_bAs reported by Markman and City Finance Director Bill Gallardo, the fees to date are approximately $154,000.

What? Are you flippin’ kidding me?

Markman’s rate, as I recall, hovers around $500/hour… but there are two other attorneys from his office involved, and I’m assuming paraprofessional or clerical staff as well.

So, let’s adjust the rate down to a more believable average of $300/hour. That’s 513+ hours to reach an invoice for $154,000.

In 40 hour weeks, that’s a total of 12.8 weeks… over three months of doing nothing but working on this single case. Protected by work product or attorney/client privilege, we’ll likely never know how Markman’s firm came up with that figure. But you can’t convince me that it’s fair or reasonable.

Instead of handing Markman’s firm a raise, Council should have asked the question, “How in the h_ll can you explain this?”

Why is this not a moot point?

politician_liar_150Like raising kids, parents need to determine if an unacceptable act is due to childish misbehavior or willful disobedience. Given that the alleged violation occurred on two documents, on two occasions and is eerily similar to the lack of transparency regarding leadership of the Breans Against Measures T & U PAC, I’m thinking this looks a lot like willful disobedience.

Never mind that the election is long past. Who knows how this might have effected voter’s or not? Having found that the City did alter documents when it had no right to do so, a line needs to be drawn in the sand that says, “Don’t do this again or you will face more serious consequences.”

Where would you rather spend the $154,000?

An email I received when the first hint of the story broke posed, “With $2.50 senior meals now the bitcoin of the realm in Brea, how many senior meals could be provided with the wasted legal defense fees related to the Measure T & U lawsuits?”

Good question Mr. Remains Anonymous… damned good question.