Matters From Don Parker.

Last Tuesday, at Matters From The Audience, Brea Deputy City Treasurer Don Parker dropped a bombshell on Council and staff. There seems to have been yet another case of “less than best practices” on the part of staff and there could be a cost to approaching a million bucks.

Emerging from a nine year series of amendments (six actually) to a professional services agreement with Ninyo & Moore for their work on the Rails-To-Trails project that increased their cost from $24,500 to $1,034,777.30 – 42.3X the original estimate.

Don’s Report To Council.

I said I would review the contracting done when the City auditors questioned costs and I am here to comment on that. As background, the contracting for soil testing and services on the Tracks project was questioned because the file(s) “could not be located” but I looked at the contracting.

In 2010, an agreement was approved with Converse Consultants for a soil remediation plan. The report indicated their bid was $46,100 and the high bid of Ninyo & Moore was $55,200. A consent item approved their contract for $55,200. No I have not misspoken, the low bidder was given the high bid price with no explanation as to why. In my 40 plus years of municipal auditing and accounting I have never seen this done and no one questioned it. What was done with this difference is unknown.

(Burying items like this on the Consent Calendar has become de rigueur for city business whenever they prefer to keep the public in the dark. More on this later.)

In 2012, Ninyo & Moore, prior high bid, proposed $19,500 for a soil remediation plan and a contract was prepared for $24,500. Again I have not misspoken as this was $5,000 more than their proposal with no explanation. Since this was under $25,000 “policy limit” our prior City Manager approved it. Where that $5,000 went is unknown.

(Hot button number two – City Manager purchasing authority. Are you serious? It was purported to be $25,000 back then (2012 and prior) but no one could establish when or even if this was approved by Council!

Today the rumor has doubled to $50,000, with no indication as to how many times a year the City Manager can exercise this authority. I’ve filed a CPRA request to document details of this. We’ll see what the City Clerk can dig up.)

In 2013 through 2015, the first through third amendments were done and approved on consent for $200,000, $70,000 and $40,000, respectively. Supposedly because original estimates of soil depth, etc. were in error.

(Note: As a part of soil remediation work, a separate contractor is required to provide oversight to ensure that the cleanup meets the standards of both the City and the local regulatory agency, which is the Orange County Health Care Agency.

So, this exponentially escalating cost is only part of the expense. This is for analysis and oversight. Another contractor had to dig up the arsenic laced soil and properly dispose of it. When I mentioned this to a friend they chuckled, “Maybe ‘the roads are paved with gold’ didn’t come from Dick Whittington and his Cat after all.”)

In 2016, the fourth amendment was approved on consent for $60,700 again for additional soil testing services. However, now in the staff report it was stated that Council approved the original agreement with Ninyo & Moore in 2012. As I have indicated, and as confirmed by your City Clerk, the original agreement in 2012 was never approved by Council. This misinformation started after our current City Manager took his position and I believe this was added to justify using this vendor

In 2017, the fifth and sixth amendments were approved by consent for $218,144.30 and $421,433, respectively for segments 2, 3 and 4 of the project. Each of these segments should have been bid separately. Instead, they were just given to the existing firm. Repeatedly in these staff reports it was stated that Council approved the 2012 original agreement which was a lie.

(Not unlike the lie that the Paramedic Tax was for the sole purpose of developing and maintaining a mobile intensive care paramedic service. Now we know it was just another honey pot. Anyone but me starting to see a pattern here?)

In summary, we have contracts awarded for amounts in excess of the proposals received with no explanations of why or where those monies went. A contract which started at $24,500, approved by our prior City Manager, which was increased to $1,034,777.30 with no additional bids to protect the public’s money. Staff reports repeatedly misled readers into thinking the original agreement was Council approved but it never was. Community Development staff, management and our prior and current City Managers cut corners, prepared false staff reports and possibly enriched themselves or others to the detriment of our City.

Our auditors did not comment on these situations so we are lucky they did not follow through. However, it is possible we still could have to repay these monies. In any event these situations occurred and they do time and time again. When is Council going to say enough is enough and start holding City management accountable and protecting our monies? I guess just approving false staff reports is easier.

D.P.

So, where do we go with this? How about starting to hold Council accountable to do what we elected them to do. I think the popular term today is ‘community driven governance’ – something I’ve been advocating for many years.

So, What Have We Learned?

We’ve learned that our Records Retention Schedule allows critical records and important public documents to be routinely dumped every 90 days. Stuck in the sixties, the City Clerk has no control over electronic communications… the IT department has their servers set on auto-purge.

We’ve learned that a deceptive plan to do an end run around Prop 13 gave us the Paramedic Tax. Millions of dollars, almost half of what has been collected since 1978, has been diverted to pay for development debt and other obligations not even remotely related to the paramedic services Brea voters believed they were creating.

We’ve learned that, for decades, the Consent Calendar has been used as a bureaucratic black hole to hide everything Council and staff wanted to keep from public view. Thankfully, in recent years, several Breans have become quite talented at spotting the big fat checks disguised as routine expenses.

We’ve learned that the City Manager has a huge treasure chest he can dip into at will without Council’s knowledge, oversight or approval… and we’re about to find out if it’s even legal.

We discovered that our appointed Cal Domestic Board Members unanimously approved combined stipends from Cal Domestic and their for profit subsidiary Cadway totaling a potential $24,000 a year income. That’s 3 or 4 times Council’s base stipend.

Council has been requested to require these public servants to file the annual CA Form 700 Statement of Economic Interests and Council is balking. Unless they call a special meeting, which they won’t, they’ll miss the deadline and face a formal complaint being filed with the FPPC.

 

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.