Wendy Leece Asks DA For Brown Act Violation Investigation

BROWN ACT VIOLATION PROBABLE
Wendy Leece, former Costa Mesa Councilwoman and member of the Newport Mesa Unified School District Board of Trustees, yesterday asked Orange County District Attorney Tony Rackauckas to investigate a possible open meeting violation by the Costa Mesa City Council at the July 5th city council meeting.

AGENDA NOT ADEQUATE
In her complaint to Rackauckas she described the violation - neither the agenda nor the full agenda report mentioned that the council would be discussing putting an elected-at-large mayor on the November ballot - and more.  She points out that it is a violation of Government Code 54954.2(e).  You can find the Brown Act HERE.

DETAILS PROVIDED - INVESTIGATION DECISION PENDING
She went into great detail in her complaint, mentioning specifics of the perceived violations.  She has been informed that a representative of the Orange County District Attorney Office said her request would be given to the Special Assignment Investigation Department to determine if an investigation is warranted.

THE RESULT OF RIGHEIMER'S ACTIONS
This, again, is a result of Mayor Pro Tem Jim Righeimer's dictatorial posturing on the council.  He calls the shots and Mayor Steve Mensinger and lamest of lame duck councilman Gary Monahan just go along.

A PATTERN
This is the second time in the past few days when Righeimer's actions have been given official legal challenges.  The other one was Eleanor Egan's lawsuit challenging the rebuttal on the Smart Growth Initiative, mentioned in an earlier post.

RIGHEIMER IS A MALIGNANT PRESENCE
Righeimer is a cancer in our city.  He plays fast and loose with the truth and many times he just seems to be making things up as he goes along, assuming nobody will investigate and/or call him on it.  Nearly every move he makes results in legal action - apparently he just views this as a cost of doing business.  Sadly, the voters and taxpayers of this city are paying the price.  He has attempted to micro-manage every element of City government and his limited intellectual capacity and marginal managerial skills have not proven up to the task.  All that is left to him is to bully those who challenge him.   Fortunately, the November election provides an opportunity for the residents of this city to make a change and remove Righeimer's control over the agenda of this town.  By changing the majority on the city council there is an opportunity to not only stop this madness, but to actually undo some of the damage inflicted on the city over the past 5 years.

Bikeway & Walkability Committee Meeting Wednesday

FIRST MEETING
The once-delayed first meeting of the new Costa Mesa Bikeway & Walkability Committee will be held Wednesday, June 10, 2015 at 6:00 p.m. in Conference Room 1A at City Hall.  You can read the agenda for that meeting HERE.

GETTING TO KNOW EACH OTHER
This first time around will be mostly getting to know each other and the election of a Chair and Vice Chair.  It's unclear whether representatives from Newport-Mesa Unified School District and Chamber of Commerce - the two additional slots requested by councilwoman Katrina Foley, bringing the total membership to 17 - will be in attendance.  No names from those two organizations are listed on the roster at this time.

NO MENTION OF THE BROWN ACT
Also missing is any reference to The Brown Act - the state law which governs behaviors by members of this kind of a committee.  We presume there will be a formal presentation on this very important issue at a meeting in the future - sooner the better.  Little things like serial emails are very important for committee members to be aware of.  "Reply All" is their enemy.

MASTER PLAN AND GRANTS
According to the agenda they will have an overview of the Bicycle Master Plan and a presentation on Active Transportation Program Grant Applications.

WHO WILL SHOW UP?
I'll be interested to see who shows up for this meeting besides the members.  Will Brent Stoll, the man from Santa Monica who was appointed, then un-appointed, show up?

LOOKING FORWARD TO THEIR WORK
I'm looking forward to the work this committee will do.  I know a few of the members personally and understand their concerns for our community.  See you Wednesday.

Did Righeimer Violate The Brown Act?

HATCH IS A GOOD GUY AND DESERVES A RAISE
Let me preface what I'm about to write by stating that I think Costa Mesa Chief Executive Officer Tom Hatch is a great guy and has done a good job since replacing Allan Roeder a little more than two years ago - particularly under the circumstances under which he's had to operate.  Not only should he be getting a raise per the terms of his contract, HERE, but he should be paid hazardous duty pay retroactively from the day he took the job!

RIGHEIMER LETS CAT OUT OF BAG
Late Thursday afternoon the Daily Pilot ran a commentary by Mayor Jim Righeimer (with some help from in-house spinmeister, Bill Lobdell) titled, "Tom Hatch is again leading by example".  You can read it HERE.  In that piece Righeimer tells us that Tuesday his council will vote on whether to give Hatch a "modest raise" for the excellent job he's done over the past two years.  He also tells us that it's Hatch's "first pay increase" since taking over the job early in 2011.  He also said, "it's well-earned and overdue".  I guess so - he should have had a raise last year by the terms of his contract.

LOOKS LIKE A BROWN ACT VIOLATION!
Then he goes on to list for us what Hatch will gain and give up in this process, none of which has been discussed in any kind of an open session.  All these conversations have taken place in closed sessions and, by divulging them to the public now, Righeimer may have violated the Ralph M. Brown Act, HERE, which is designed to create transparency in government and establishes some very inflexible rules about divulging confidential information.  Section 54963 (a) of the Brown Act states, "A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8, or 54957.10 to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information."  To my knowledge there has been no authorization by the City Council to disclose this information - information it has not yet voted on.  The Brown Act  goes on to describe the nature of such violations and remedies, which could include disciplinary action and referral of the violation to a grand jury.

ALSO REPORTED IN THE REGISTER
And, Mike Reicher in the Orange County Register published an article discussing the very same information, and refers to a "report" issued by The City, but I'm unable to find such a report on The City web site.  HERE is the link to Reicher's article, but you must be a subscriber to access it.

5% RAISE PLUS...
Righeimer tells us that Hatch will be getting a 5% raise - $10,368 - taking his annual salary to $217,656, and that he will also be receiving an increase in his car allowance from $477 per month to $650 per month AND a "technology allowance" of $250 per month.  The raise and those other items will be retroactive to February 1st, 2013 - a curious date, since Hatch started his job in March of 2011.  The way I calculate it - $10,368 $864+$173+$250 X 5 months - Hatch will get a lump payment of nearly $54,000  $6,440 in addition to his next regular paycheck. (Told you to check my math!  Sorry about that!)

BUT IT COSTS HIM, TOO
Righeimer also tells us that Hatch is giving up some benefits, too.  He's giving up half his sick days that will cost him over $5,000 per year.  He's also giving up two weeks vacation that will cost him over $8,300 per year.

AND MORE...
Further, he will see a reduction in his primary sick bank from 480 hours to 221, which potentially costs him over $27,000.  Add that to the other two items above and he's giving up more than $50,000 - at least.

HOW MUCH IS THAT WORTH?
Earlier Righeimer told us that Hatch "volunteered" to pay the maximum legally allowed - 40% - to his pension, but we don't know what that actually means, dollar-wise.

BROWN ACT VIOLATION AND SHOWBOATING
Here's what I think... just my opinion, based on the facts as I understand them.  I think Righeimer DID violate the Brown Act by divulging information that was the confidential content of closed session meetings.  I think he did so in haste, on the one hand showboating to praise Hatch for his work and, on the other, set him up as a martyr, so he and his pals can point to Hatch's "sacrifice" when they finally begin negotiations with the General Employees.  Those employee contracts expired the end of March, yet they just keep on doing their jobs...

WHAT ELSE CHANGED?
It will be interesting to see what other parts of Hatch's current contract were changed in this negotiation.  Was, for example, his nine-months severance package modified?  Why didn't he get a raise a year ago?

WHAT WILL THE EMPLOYEES THINK?
It will be VERY interesting to see what impact this commentary has on the morale of the employees of our city.  I'm also curious about how this will be received within the community... we'll see, I guess.

CHECK IT, PLEASE
I'm exhausted, so please check my math and let me know what you think...

Uh-Oh, Certain Brown Act Protections Suspended

WATCHDOG ON THE CASE
Today, in the OC Watchdog column in the Orange County Register, the issue of the State suspending certain protections in the Ralph M. Brown Act in a budget-savings move is addressed.  You can read it HERE.

AGENDA POSTING COSTS
The issue is that, as part of the recent budget approval, the State has suspended the section of the Brown Act that requires the state to reimburse local jurisdictions for the cost to publish and post agendas for public meetings.  According to the article, the savings might be as high as $96 million.



COSTA MESA REIMBURSEMENT UNKNOWN
I contacted The City of Costa Mesa to see what kind of reimbursements we've been receiving lately.  No numbers are readily available, but I'm informed that we have been receiving reimbursements.  OK, I can wait until those numbers are available, but that's not why I'm writing this post.

THE MEAT OF THE ISSUE
At the end of this article the writer provides us with this little bit of information, which sent a shiver down my spine when I read it: (The red emphasis is mine)

"In the end, it’s fair to wonder why anyone would care about the Brown Act suspension. Most citizens in most places around California will probably see no difference in how their local governments handle agendas.

But the suspension is significant for the special power it takes away. Under normal circumstances, the Brown Act gives Californians the power to challenge the actions of their local government — if they don’t agendize them properly.

Say, for example, the agenda of your city council said officials were going to discuss a new program to clean your local parks and then, when that item came up in the meeting, they voted to raze all of the parks and replace them with parking lots. Under the Brown Act, you could take your city council to court to overturn that decision on the grounds that that it wasn’t properly agendized.

But you only have that power if the agenda-posting requirement of the Brown Act isn’t suspended. Since it is, you have no redress if that ever happens in your city."

OK, have you got that?  So, here's what it means in real life.

 THE COUNCIL'S END-RUN ATTEMPT
Back in April, after it was determined that Jim Righeimer's Charter would not appear on the June primary ballot because the deadline for submission of documents was missed, the council tried a stealth move -  an end run on the process.  I reported it HERE, HERE and HERE.  In a nutshell, the council wanted to hold a SPECIAL ELECTION for the charter, to be held coincident with the Primary, but would not be consolidated with the Primary because of the missed deadline.  This would have been VERY expensive for The City.

IMPROPER NOTICE...
However, as I noted when I wrote to The City about this issue - and subsequently posted it on my blog - the announcement of the special meeting that had been called to deliberate that issue was NOT PROPERLY NOTICED. The next day The City withdrew the item and canceled the special meeting.

 CHARTER SPECIAL ELECTION WOULD HAVE OCCURRED
If the Brown Act segment that's in question now had been suspended back then the council could have just charged ahead with an improperly noticed issue and we would have seen that expensive special election on June 5th.

WILL THEY CHANGE?
I have NO idea if the council will change the procedures for noticing of public meetings or not.  I hope not, but won't be surprised if they do.  They don't much like the fact that folks, based on published agendas, have a chance to research issues and prepare questions and responses to them.  This council certainly doesn't like criticism and this might give them a way to inhibit some of those critics.

A BELLWETHER
It will be very interesting to see what action, if any, this council takes on this issue.  If they DO begin to play fast and loose with agendas, that will give you a VERY good idea how they may act if Jim Righeimer's Charter passes as-is.

 CHARTER VOTE ON JULY 31ST
Speaking of which, the council will meet at 7:00 on Tuesday, July 31, 2012 to vote on whether or not to place Jim Righeimer's Charter on the ballot in November.  This will be absolutely the last chance for ANYONE to express an opinion on this issue before they take the vote.

Brown Act To Become Constitutional?

WORKING GROUPS TO DISBAND, BUT... UH-OH!
Just as the Costa Mesa City Council is about to disband its 2-person City Council "Working Groups" - entities that some felt were created to avoid the nasty inconvenience of having to let the public know what they were up to - our friends over at the Voice of OC blog provided us with a very interesting bit of information.

BROWN ACT GETS NEW, SHARPER DENTURES
According to Tracy Wood on that site, HERE, last week the California State Senate UNANIMOUSLY approved a bill that would make the Ralph M. Brown Act a part of the state constitution and thereby give it sharper legal teeth. The bill apparently was sent to the Assembly where a two-thirds vote of the 80 members is required to put this bill before the voters in 2012.

NO MORE POLICIES ON BAR NAPKINS
If this bill passes it will be BAD NEWS for those elected leaders who choose to do business in the proverbial "smoke-filled rooms" - or perched on a stool in a local pub, scratching out policy on the back of soggy cocktail napkins.

SHINING LIGHT ON LAWMAKERS
If this bill passes it is GOOD NEWS for the voters and other residents of this state, who expect their leaders to follow the law and conduct public business in public.

VOTE NO, SAY ADIOS!
The Assembly vote on this bill should be interesting. If ANY member votes NO, then one might rightly assume that he or she would prefer NOT to have the light of day shown on the way they do business. A "No" vote on this bill will, correctly, effectively be political suicide for any member who votes that way.

DID WE "REALLY" NEED THE WORKING GROUPS?
This might make for an interesting discussion Tuesday at the Costa Mesa City Council meeting, where the disbanding of the "Working Groups" will take place. You can read the brief staff report HERE.

Brown Act, Homeless & Hatch (Amended)

YOU CAN SWALLOW NOW
I guess I gave you plenty to chew on over the weekend with my last post. There's never a dull moment here in the land of the Newport-Mesa.





IN ANTICIPATION OF...
Today, Monday the 16th, is the day Costa Mesa City Attorney Tom Duarte promises us a reply to the Brown Act letter sent by General Counsel Terry Francke of Californians Aware (CalAware) last week on the subject of the so-called Working Groups - two council members meeting privately to discuss important issues that affect all residents. Of main concern is the budget group composed of Mayor Gary Monahan and Mayor Pro Tem Jim Righeimer that has met at least a dozen times since being formed in January to discuss the budget and outsourcing. We wrote about the letter last week, HERE and HERE.

...A NEGATIVE RESPONSE
If Duarte is consistent he will, once again, tell us that the committees are "ad hoc", and as a result are NOT subject to the transparency considerations prescribed in The Brown Act. That's what he told me twice a month ago when I brought the subject up and provided an opinion by the California Attorney General to the contrary.

NOTE: Late Monday afternoon Costa Mesa City Attorney Tom Duarte did issue a formal response to Terry Francke. You can read it HERE. As predicted, the answer was the same one he gave, twice, more than a month ago.

HOMELESS TASK FORCE MEETS WEDNESDAY
This Wednesday, May 18th, the Costa Mesa Homeless Task Force will meet again, this time in Conference Room 1A at City Hall beginning at 5:30. According to the agenda, among those things to be discussed will be 1) Susan Sassone, Head Librarian will discuss the impact of the homeless on the Library at Lions Park and what is being done to address the issue and 2) Larry Weichman, Chairman of the Costa Mesa Chamber of Commerce and UberRealtor here in town will discuss the impact of homeless on businesses.

HATCH TO SPEAK AT MESA VERDE COMMUNITY MEETING
Our friends at Mesa Verde Community, Inc., the homeowners association for that part of town, has asked me to mention that a week from Wednesday, May 25th, they will hold their General Meeting and the Keynote Speaker that evening will be Costa Mesa Chief Executive Officer, Tom Hatch. This meeting is open to the public and the sponsors are very excited about having Hatch give them his views on the state of the city at this time. Details can be found on page 2 of their April newsletter, HERE.

COMMENTS STILL NOT FULLY RESTORED
My blog host, Blogger, has been working feverishly throughout the weekend to restore all the blog posts that were dropped last Wednesday due to their maintenance screw-up. We're still awaiting the restoration of the comments that were appended to many of those blog entries. We are told that they should be back online available for viewing "soon", whatever that means. Thanks for your patience...

Brown Act Questions To Be Answered By Monday

RAPID RESPONSE TEAM AT WORK
In what may be the fastest response to a question in recorded history, Costa Mesa Interim Communications Director, Bill Lobdell, issued a Press Release late this afternoon on the subject of the letter sent to Mayor Gary Monahan yesterday from Californians Aware, which I covered in blog entry earlier today, HERE. This is very much like fighting a fire - get there quick, get a lot of water on it or it will get away from you.

PRESS RELEASE AVAILABLE FOR VIEWING
In his Press Release, which you can find in it's entirety, including a copy of the letter, HERE, Lobdell tells us that The City will have a response no later than Monday, May 16, 2011.

EVEN MORE PROVOCATIVE INFORMATION
An interesting part of his Press Release is the admission that most of the Working Groups have done basically nothing since formed but that the Budget and Capital Improvements Working Group - Mayor Gary Monahan and Mayor Pro Tem Jim Righeimer - has convened 12 times since January. And, of course, that even further exacerbates the appearance of impropriety, since there are no records of those meetings, where or when they were held, etc.

HUMMING THE JEOPARDY! THEME...
We will look forward to The City's response on Monday.

CalAware - Costa Mesa 'Working Groups" Violate Brown Act

ME - "A BROWN ACT VIOLATION?"
More than a month ago I wrote to Costa Mesa Chief Executive Officer Tom Hatch citing a section of the Ralph M. Brown Act that appeared to validate my contention that the City Council Working Groups - two-person sub-committees of the City Council - were in violation of the Brown Act. He, appropriately, handed it off to new City Attorney Tom Duarte for handling.

DUARTE - "NO"
Subsequently Duarte advised me that the committees were "ad hoc" committees and, as such, were not subject to the Brown Act.

ME - "BUT THE AG SAYS"... DUARTE - "NO"
Shortly thereafter I sent to Hatch and Duarte a copy of a 1996 ruling by the California Attorney General at the time which seemed to contradict Duarte's view. The response was the same - our Working Groups were "ad hoc" and not subject to the Brown Act.

"CALIFORNIANS AWARE" LETTER
Yesterday a letter was sent from Mr. Terry Francke, General Counsel of Californians Aware, The Center For Public Forum Rights to Mayor Gary Monahan with copies to the remainder of the City Council, Hatch and (apparently in error) Kimberley Hall Barlow, former City Attorney.

WORKING GROUPS DO VIOLATE BROWN ACT
In this letter Mr. Francke cites the same section of the Brown Act I referenced in my earlier correspondence to Hatch and advises that our Working Groups ARE subject to the Brown Act. Near the end of his two-page letter Mr. Francke says the following:

"While the Working Groups are intended to report their recommendations to the full Council in open session, and while Working Group members are apparently being advised not to communicate with non-members on the matters under study, the fact remains that if the group's meetings are private, the public will have no sense (unless it is told) of just what avenues were explored, what options were examined and discounted or discarded, or who met with the group in guiding its inquiries or formulating its proposals. The public will be presented with a package to react to, and one with weeks or months of momentum behind it by the time it reaches the Council, needing only one of three voters to be approved."

COMPLY OR ELSE...
Mr. Francke is obviously quite serious about this issue because his final paragraph reads as follows:

"Please take the necessary steps to see that the Working Groups begin immediately to comply with the Brown Act. And please consider that the Council's failure to do so will result in my recommendation to our Litigation Committee that we seek the appropriate court order(s) to ensure such compliance."

PLACE IT ON THE AGENDA
This morning I sent a note to Tom Hatch and Tom Duarte referring them to Mr. Francke's letter and requesting them to place the question of the Working Groups on the next City Council agenda - next Tuesday, May 17th.

ALL ACTIONS SHOULD BE CONSIDERED NULL AND VOID
Further, I suggested to them that, assuming the Attorney General opinion from 1996 and Mr. Francke's opinion are valid, that any actions taken by the City Council based on the illegal deliberations of the Working Groups since their inception should be considered null and void. That includes the entire Outsourcing plan and the 6-month notices that were issued as a result, which should immediately be rescinded.

ANTICIPATING PUSH-BACK
I'm not quite sure what to expect from this communication. I'm not threatening the City Council - Mr. Francke is, though. I suspect we'll hear a lot of push-back on this subject from Jim Righeimer and Steve Mensinger, since they don't like to be told by ANYONE that they can't do something they've got their minds set on.

IT'S OK TO START OVER
I hope they come to their senses and finally comply with the Brown Act. If they have to start all over with their ill-conceived outsourcing scheme, well, that's OK with me. They've been moving way, way too fast as it is. They can always re-start the clock on the 6-month notices, which will probably be better in the long run. According to Hatch in the Study Session last night, the preparation of the RFPs for possible outsourcing of 17 departments has been moving at a hectic pace. This delay will give the staff a chance to do this right, and for a proper analysis to be done of those responses the city might receive, and for a proper, thorough comparison of those submissions to the costs of retaining the work in-house. We owe the employees that much, for goodness sake.

SAD FOR HUY PHAM AND OTHERS
Sadly, I cannot close this without a feeling of deep sadness for Huy Pham, the young employee who took his life as his 6-month notice was about to be presented to him, and for his family and all his friends in The City. I also feel a deep sadness for those other employees who chose to move on rather than continue to lay on the tracks, waiting for this runaway train to run over them. Their skills and dedication will certainly be missed regardless how this whole drama works out.