Closing The "Abstaining" Loop

REMEMBER?
Last month I reported about the Planning Commission meeting at which contentious, de-frocked Costa Mesa Sanitary District Director Jim Fitzpatrick was elected Chairman of the Costa Mesa Planning Commission, HERE.

FITZY'S ABSTENTION
In that entry I criticized Fitzpatrick for choosing to abstain from voting on the only substantive issue on the agenda - a proposed development on the far west end of Victoria Street.  When it came time for him to cast his ballot he asked the City Attorney, Christian Bettenhausen, if he could abstain and was told he could abstain any time he wanted.  I took exception to that advice and quoted the city Municipal code section to support my contention that he was required to vote unless he had a conflict of interest.  Here's that section, 2-69, of the code:
Every councilman should vote unless disqualified by reason of a conflict of interest.  A councilman who abstains from voting acknowledges that a majority of the quorum may decide the question voted upon.  A councilman who is silent or inattentive and fails to vote without stating his abstention or without being disqualified shall be deemed to have cast a "yes" vote.

LOOKING FOR CLARIFICATION
Following the meeting I wrote to CEO Tom Hatch and City Attorney Tom Duarte, asking for clarification.  I cited an event a couple years ago when then-mayor Allan Mansoor refused to vote on an issue that degenerated into a shouting match between him and then-councilwoman Katrina Foley which prompted then-City Attorney Kimberly Hall Barlow to call for an immediate closed session to sort the issue out.  At that event, when the council walked out of the chambers to that closed session Mansoor just kept on walking and didn't return to the meeting and the issue of him being required to vote was never resolved.  The remaining council members voted 3-1 on the issue.  So, I wanted a clarification.

SHOULD VS. SHALL
This week Duarte called me and explained that the operative word in the code is "should" - I highlighted it in red above.  It is interpreted that a member may abstain for any or no reason at all on any issue.  Had the code used "shall", the member would be required to vote on every issue unless there was a conflict.  So, there we have it.  Words count.  I'm grateful to Duarte for his quick, clear reply.

MORE INFORMATION
 Later in the Municipal Code it is stated that once a member abstains from a vote he cannot later choose to vote on it - what's done is done.

THE PROJECT IS APPEALED
The issue that created this question in the first place - the project on Victoria - has been appealed to the City Council.

MESA GREEN DESIGN AWARD
The question of whether Fitzpatrick can nominate a person - City Building Official Khanh Nguyen - as the recipient of the Mesa Green Design Award is under review and may be clarified at the next Planning Commission meeting.  

Fitzpatrick To "Lead" the Planning Commission

CAN'T STIFLE THE SMILE
Sorry, I must confess that I couldn't stifle a smile when I wrote that title.  But, yes, former and current Costa Mesa planning commissioner Jim Fitzpatrick - he of the contentious, costly, short tour on the Costa Mesa Sanitary District Board of Directors - was elected as Chairman of the commission at their special meeting last night.  His sidekick, Rob Dickson, was chosen as Vice Chairman.  There were no other nominations for either position.  Make of that what you will...

A "LEADER"?
Before we get to the meat of the meeting, let me express personal reservations about just what kind of leadership Fitzpatrick will provide.  His tour on the Sanitary District board was marked with anything but leadership.  Quite the contrary, his tenure in that job was marked with divisiveness and forced the rate-payers to absorb thousands of dollars in legal fees to force him to follow the law.  I wonder just what kind of leadership a man so obviously willing to ignore solid legal opinions will bring to the Planning Commission?  It's going to make for some interesting watching.  Keep reading to understand why...

THE REASON FOR THE MEETING
The most contentious item on the agenda of that special meeting was the consideration of a project near the west end of Victoria Street that calls for replacing the present church facilites with 17 detached, single-family homes on 1.4 acres.  The developer referred to the look as a "contemporary beach shack".  The development will have 63 parking spaces, which meets the current code, some of which will be underground parking spaces.  He also plans to excavate the property so the three-story units will look like two-story units from adjacent properties.  Whether you like the "look" - extremely vertical with flat roofs -  or not is a matter of personal taste.

RESIDENTS AND "EXPERTS" SPEAK UP
A half-dozen speakers - I thought there would be more - stepped up and addressed concerns about traffic, the recommended exemption to the California Environmental Quality Act (CEQA) and the view being lost by one existing resident.  The commission and staff resolved all those issues with a clear discussion.  They can't, for example, rule on the "view" issue.

FITZPATRICK TAKES A HIKE
So, it then came time for Chairman Fitzpatrick to lead his group into their first vote and he demonstrated his "leadership" by asking the City Attorney, Christian Bettenhausen, if he could abstain!  His quote was, "I don't have any specific concerns, but I do have just some general concerns that I'd like a little more time on and I'd prefer not to vote no because I am in general support of this project.  Do I have the opportunity to abstain?"  Bettenhausen, after a long pause, told him he could abstain anytime he wanted.  So, in his first vote as chairman Jim Fitzpatrick decided to take a little vacation.  The commission voted to approve, 4-0.

CODE SAYS HE MUST VOTE!
Checking the Costa Mesa Municipal Code, Section 2-69 - Failure to vote says as follows:
Every councilman should vote unless disqualified by reason of a conflict of interest.  A councilman who abstains from voting acknowledges that a majority of the quorum may decide the question voted upon.  A councilman who is silent or inattentive and fails to vote without stating his abstention or without being disqualified shall be deemed to have cast a "yes" vote. Keep in mind that the code equates commissioners with council members in this context.

TOO LAZY OR WHAT?
So, because he was too lazy in his first week after being appointed to do his homework or unable to articulate whatever concerns he had on the only item of substance on this special meeting agenda, Fitzpatrick just blew off his responsibility to vote on this issue.  It's going to be a very long couple of years if that's the kind of leadership we can expect to see from him.  Maybe we should withhold his $400 for February since he basically didn't do the job. 

BUT WAIT, THERE'S MORE...
It gets better.  The only other item on the agenda last night was the nominations for the Mesa Green Design Award.  Here's the definition of that award taken from the city web site.

"Purpose of Mesa Green Award:
To encourage green design and practice, in 2010, the Planning Commission added the Mesa Green Design Award to recognize exceptional “green” projects. The Mesa Green Design Award is presented as projects are nominated throughout the year."

SIMPLE, RIGHT?

That seems pretty straight forward, right?  Nominate a project that is exceptionally "green".  Good idea - and a concept that Fitzpatrick has championed for years since he considers himself a "Green Expert".  He used to write a column for the Newport Beach Independent online newspaper on those subjects.  So, which project did he nominate?  None!  Nope, he nominated a city staff member - Building Official Khanh Nguyen, whose name he mispronounced at least twice!  Now, Mr. Nguyen is a great guy, who reportedly does a great job, but he's not a "green project" by any definition of the word.  If Mr. Nguyen has made an exceptional contribution in the performance of his job and some sort of recognition is appropriate, let's find one that is correct, for goodness sake!

WHAT'S WRONG WITH HIM?
Watching Fitzpatrick during the meeting last night, and based on his only two decisions - both of which were bogus - I found myself wondering if he was distracted... or something else.  I don't know, but I do know that his first performance as Chairman of the Costa Mesa Planning Commission was a big FAIL!  I also have more than a little better understanding of what the members of the Costa Mesa Sanitary District had been dealing with.