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HomeMy WebLinkAboutWritten communications dated 12/14/2017 and 1/8/ 2018, Recei RECEIVED Ralph Bauer 16511 Cotuit Circle �d�B �A� �$ PM3� Huntington Beach, Ca 92649 vi i 4;`'L'ti` 714-846-3927 CITY GF�� !TING1 G �{ January 8, 2018 Dear Mayor Posey and City Council Members: I have received the City Attorney's letter which indicates that he does not believe the City Council violated the Brown Act on the recent Mayor ProTEm appointment. I do not agree with his conclusion;thus, the issue may be for the courts to decide. It should be noted that there are incidences where past practice has the force of law. Although the action to skip appointing Billy O'Connell as Mayor ProTem may not be technically a Brown Act Violation, your action certainly violates the spirit of the Brown Act. The intent of the Brown Act is for the public to have input before a significant change in procedure. Let me tell you why I think your action was inappropriate. For over twenty-five years the rotational system for choosing the Mayor and Mayor ProTem has been in effect. Prior to that time the appointments were decided in secret outside the Council meeting and was done via a clique which wanted to stifle legitimate viewpoints. This led to polarization of the Council and votes which were not always in the best interest of the citizenry. Your recent action has started the City back along this path. Many of us feel that local school boards and city councils are the last vestiges of Democracy in this country. For unlike state and federal legislatures, local bodies do not practice the intellectual dishonesty, petty bickering, and political arrogance so prevalent at the state and federal level. Unfortunately, what you have done is a step in that direction. I hope you will correct this action. Parenthetically, I have served on two school board and 10 years on our City Council. During that time, I learned to give my elected colleagues courtesy and respect whether I liked them or their ideas or not. I did this because it is a common 6urtesy and the people elected them. Thus, my colleagues deserved to be heard. If the people are unhappy with whom the elected, they can remove them from public office by recall or at the next election.. Interestingly, you indicated that the reason]for not appointing Billy O'Connell was because he was following the law and recusing himself when appropriate. I am sure each of you wants to do a good job. Let me share with you some of concepts which you may find useful in your political career. 1 played basketball for John Wooden. He taught that team play is essential for success. I was an officer aboard a combat mine sweeper with thirty men who because of their training, and team work successfully swept places like Wonsan, and Hungnam, North Korea, without tragedy In the Korean War. The Council should be a team and when there are conflicting concepts a process of consensus building should take place. 1 believe that a body like yours owes that to the citizens. I have included some information you might find useful: 1. A simple model of City government 2. A set of business principals authored by Edward Deming which are the basis of Japan's economic recovery after WWII 3. Some criteria by which one can judge council member's performance 4. A 20-year history of accomplishments by City Councils on which I had the privilege of serving. These Councils functioned as teams otherwise these accomplishments would not have occurred In closing, I should mention you can gain more power functioning as a team rather than functioning as an individual. 1 wish you good fortune in your service as Council Members. Sincerely, Ralph uer cc: Michael Gate, City Attorney Fred Wilson, City Manager CITY OF HUNTINGTON BEACH Brian L.Williams Senior Trial Counsel Michelle Ditzhazy OFFICE OF THE Deputy Community Prosecutor ore CITY ATTORNEY Sr.Deputy Clity ealAttorney Jemma Dunn Michael E. Gates P.O.Box 190 Sr.Deputy City Attorney City Attorney 2000 Main Street Scott Field Huntington Beach,California 92648 Sr.Deputy City Attorney Mike Vigliotta Telephone: (714)536-5555 Daniel K.Ohl Chief Assistant City Attorney Facsimile: (714)374-1590 Deputy City Attorney December 29, 2017 Mr. Ralph Bauer 16511 Cotuit Circle Huntington Beach, CA 92649 Re: Response to your letter regarding election of Mayor Pro Tempore Dear Mr. Bauer: This letter is in response to your letter of December 14, 2017 with respect to action taken by the City Council at its December 4, 2017 meeting to elect Council Member Erik Peterson as Mayor Pro-Tempore. You suggest a violation of the Ralph M. Brown Act ("Brown Act") took place because there was no adequate notice to the public on the posted agenda regarding the action of setting aside the Resolution. After reviewing the record and evaluating the contents of your letter, it is the City Attorney's view that the action taken to elect Council Member Erik Peterson as Mayor Pro-Tempore instead of Council Member Billy O'Connell (including"setting aside the Resolution") complied with the Brown Act. The Brown Act simply requires that the agenda of a regular Council meeting be posted 72 hours before the meeting commences and contain a brief general description of each item of business to be transacted or discussed. The brief general description need not exceed 20 words (Gov. Code, § 54954.2, subd. (a)). In this case, the City Council Agenda for that meeting specified the action item for the election of Mayor Pro Tempore as "Conduct Election of Mayor Pro Tempore for Ensuing Year,New Mayor calls for motion to elect new Mayor Pro Tempore." The California Courts of Appeal and the Attorney General have set forth the following general principle: the agenda must give the public a fair chance to participate in matters of particular or general concern by providing the public with more than mere clues from which they must then guess or surmise the essential nature of the business to be 17-6194/171589/mv Re: Response to your letter regarding election of Mayor Pro Tempore December 29, 2017 Page 2 considered by a local agency. So long as notice of the essential nature of the matter an agency will consider has been disclosed in the agency's agenda, technical errors or immaterial omissions will not prevent an agency from acting under the Brown Act. (San Diegans for Open Government v. City of Oceanside, (2016) 4 Cal. App. 5th 637, 637.) (Gov. Code, § 54950.5 et seq.). Courts and the Attorney General have concluded that the Legislative intent of the Brown Act does not require detail or precision in local agency agendas; rather, the Brown Act only requires a brief general description, which the cases in turn have determined only requires fair notice of the essential nature of what a local agency will consider. As long as the City published an agenda that was not in any sense confusing, misleading or unfairly opaque and that gave the public fair notice of the essential nature of what the council would be considering, the posting requirement is met. (Id.) Again, the following is a direct quote from the December 4, 2017 posted agenda: "Conduct Election of Mayor Pro Tempore for Ensuing Year New Mayor calls for motion to elect new Mayor Pro Tempore." Any contention that voting on setting aside this Resolution required a separate agendized action item is not the correct interpretation of the law. The City Council Agenda clearly called for an election of the Mayor Pro-Tempore. The agenda did not mention Council Member O'Connell, Mr. Peterson or reference in any way "who" may be elected. The agenda simply and clearly notified the public that an election for the Mayor Pro-Tempore was going to take place. By alerting the public that an election was taking place gave the public fair notice of the essential nature of what the Council would be considering, i.e., electing a Mayor Pro-Tempore. The mechanics of the election process are not agendized as the process is subordinate to the Election. The subordinate "process" of the mechanics of the election process need not be posted. The California Court of Appeal addressed a similar issue in this regard in the case of Joaquin Raptor Rescue Center v. County of Merced, (2013) 216 Cal. App. 4th 1167. The Court of Appeal held that the adoption of a substantive document (in this case a Mitigated Negative Declaration) was plainly a distinct item of business, and not a mere component of project approval, since it (1) involved a separate action or determination, and (2) concerned discrete, significant issues of CEQA compliance and the project's environmental impact. (Id., at 1168.) Here, as noted in your letter, Resolution 6320, first adopted by the Huntington Beach City Council in September 1991, details Parliamentary Procedure for selection of the City's Mayor and Mayor Pro-Tempore. In Pasadena v. Paine, (1954) 26 Cal. App. 2d 93, the Court of Appeal held that when an action is taken in compliance with the Charter it will not be held void because in its passage one of the Parliamentary Rules of the Council was violated. So, the Council may abolish, suspend, modify or waive its own rules which, 17-6194/171 589/mv Re: Response to your letter regarding election of Mayor Pro Tempore December 29, 2017 Page 3 it clearly did here. The rules of Parliamentary Practice are merely procedural, and not substantive. These principles apply with equal force to Resolutions. (Id., at 95) In other words, the Council could have chosen to disregard the Parliamentary Process detailed in the Resolution without voting and the same result would have taken place. The additional vote to set aside the Resolution was a matter of process Council chose to follow. Because a vote on setting aside the Resolution was unnecessary, it would be an erroneous interpretation to suggest that it needed to appear on the City Council Agenda as a separate item for action. We are continuing to look at the election in its totality and will consult with the City Council. If you would like to discuss this matter please call me at your earliest convenience. Sincerely, M ael E. Gates ity Attorney 17-6194/171589/mv An Interactive Model For Rational Self-Government Citizens Interaction Build Evaluate Consensus SELF Results GOVERNMENT Prioritize W4 Implement Solutions Strategies Elected Staff Representatives GOAL Optimize Meaningful Interactions Between Citizens, Elected Representatives And Staff To Develop Cost-Effective Self-Government FIGURE 1 PARTICIPANTS IN THE INTERACTIVE MODEL FOR RATIONAL SELF-GOVERNMENT I. CITIZENS Residents Voters Boards, Committees, Commissions Task Forces Business Groups, Chamber of Commerce, Real Estate Interests School Boards Land Owners Homeowner Groups Citizen and Environmental Groups Advisory Committees Lobbyists Good Government Groups PARTICIPANTS IN: Public Comments at Council Meetings Political Campaigns and Elections Qualifying Ballot Measures Circulating Petitions Community Outreach Programs Business Forums IL ELECTED REPRESENTATIVES City Council City Attorney City Treasurer City Clerk III. STAFF City Employees and Consultants FIGURE 2 HOW DO �`OU KNOW I1,' YOU HAVE GOOD GOVERNMENT? INTEGRITY: -Integrity stares at the top with elected officials, city administrators, and department heads Practice open government -Don't do anything you wouldn't want on the front page of tomorrow's newspaper -Do what is right, even if no one is watching -One inappropriate act will cause you to lose your integrity forever PROFESSIONALISM: -Use merit when hiring and promoting -Establish a fair competition when promoting and hiring -Pay a fair wage for the competence level you are seeking -Institute training programs PRINCIPLES: -Establish written goals and objectives and evaluate against these standards -Establish mission statements -Develop plans, strategies, and budgets on a rational basis PARTICIPATION: -Develop a participative, rather than an autocratic management style -Empower the citizenry -Develop mechanisms for citizen participation -Establish citizen based boards, committees, and commissions -Deal with employees fairly EVALUATION: -Evaluate individuals and departments against goals and objectives -What does the public say at public meetings and in letters to the city -What do newspapers say; including letters to the Editor -Comparisons with other cities by third parties -How well are we doing in comparison with the best wv2 leave ever seen PAGE 5 WHAT DOES CITY GOVERNMENT DO A REMINDER OF FUNDAMENTALS 1. Develops organizational structure and manageable processes "A firm foundation on which to build" 2. Generates fiends to carry out desired programs. Has comprehensive _ budgeting and financial accounting systems in place. "Money drives the system" or "Take care of the money money and it will take care of you" 3. Provides efficient delivery of traditional services. Appropriate support services must also be in place. "Do for the residents what they cannot conveniently do for themselves" 4. Provides special programs and services desired by the residents. "Citizen input provides direction" 5. Develops goals and objectives togetlier with the long range strategies via appropriate planning techniques. "What is our vision?" PAGE 7 An Example of Goals a City Might Adopt 1. Maintain a safe community. 2. Assure long-term adequacy of the city's infrastructure facilities, 3. Enhance and maintain the environmental quality of the community. 4. Improve the city's long-term transportation system as it evolves. 5. Establish policies and strategies to ensure a viable business environment throughout the community and expand the city's revenue. 6. Adequately address the city's human issues and recognize their importance to preserving the health and safety of the community. 7. Provide for diverse housing stock throughout the community and maintain the quality of housing stock. 8. Maintain and continually improve organizational effectiveness. 9. Continue to provide diverse educational, cultural, cultural and recreational opportunities. 10. Pursue entrepreneurial approaches for seeking new businesses and tourism to expand the city's revenue base. 11. On going expenditures should be supported by on- going revenues. 12. No new capital improvements should be approved until associated costs are funded by .recurring revenues. 13. Each enterprise fund should reflect the true cost of operation including direct and indirect cost supported by the General Fund. t '�\>S;::tA:;;:i •`r''r rj:��::::;isy`ti.^;>:t:%:iY:F;yi::i:Y.:i':::�:iy'y' ti`:}':t• tF%wa!•'' >.!,.a'r"rr��"# ON a........ Mj't:;`y�" "sa,• ttc: ..���:�+�� ki low a < ^.�.,::act;; :•.:: y,,...:;p.. W. EDWARD DEMING'S 14 POINTS FOR MANAGEMENT 1. Create constancy of purpose 2. Adopt the new philosophy 3. Cease dependence on inspection to achieve quality 4. Cease doing business on the basis of price tag alone 5. Improve constantly and forever the system of production & service 6. Institute training on the job 7. Institute leadership 8. Drive out fear so that everyone may work effectively 9. Break down barriers between departments 10. Eliminate slogans, exhortations, and targets 11 . Eliminate numerical quotas 12. Allow pride in workmanship 13. Institute a program of self-improvement 14. Put everybody in the company to work to accomplish the transformation Mr. Deming is the inventor of modern quality improvement. He was a major architect of Japan's resurgence as an economic power after World War II. PAGE 27 CityHuntingtonOf Beach QUALITY SERVICE MISSION The Mission of the City of Huntington Beach is to maintain a safe community, a high quality of life, the most cost effective and ; highest quality services, facilities, and products in response to the changing needs of our community. QUALITY SERVICE VISION To be recognized as a model organization, respected for valuing the community it serves, and the people it employs. Aw Q UALITY SERVICES VALUES STATEMENT We value our customers and co-workers and are committed to: ' Service which is accessible, courteous, responsive, timely, ' equitable and is given in the spirit of professionalism. • Behavior that is truthful, honest, and ethical. �M An environment that is open, cooperative, supportive, and encourages teamwork, innovation, recognition, mutual vy` respect, and values public participation. ' Evaluation and reevaluation of our mission and performance in our pursuit of excellence. :::::.:ii?i?:i::'iii::!-i::?J:}.;.:.:?::.. •A:::...::::::::. $ ......• ..S�i:::2..:t•:: 4:iii:{ril:i:?:.?.r.. .... .. �?• ... .....:::�:,, ... ...:.:....:.... :..:.•.a':v. :: •::vw•n'Li:!Y:ti�i:i;.:J:ii'?�tiJ:J:•ii:: i t.,:4.... ........,:.v:•:.:•:?.;...•�.....x•..;\.,!... <.. ...vJ>2/2K:.�..;?::.::.?.r:::.i.?;: .:.......!.;.. ...:::.!.:...n..t:Y>.::?.}.'22:J:::>i'J�•!/.n`y�J•;i:.!+'`-Ki.,, vrf:.,•:. - Written by Huntington Beach City Employees CITY COUNCIL ETIQUETTE Regardless of differences, which in some cases are substantial, Council members should treat each other with courtesy regardless of provocation. The public is interested in having their leadership solve and resolve community problems. They are not interested in what they.perceive as wrangling over personal differences. PAGE 39 ASSESSING CITY COUNCIL EFFECTIVENESS 1 . Meetings start on time and end at a reasonable hour. 2. All City Council members feel free to express their opinions. 3. I feel like a contributing member of the City Council team. 4. The City Council does not attempt to micro-manage. 5. While they may not like some of the decisions, the community perceives the City Council as fair. 6. Staff provides a recommendation on every issue no matter how controversial. 7. Our City Council has an overall vision for the community. 8. The Chair keeps audience members informed of City Council issues and actions. 9. Our City Council gets things done. 10. There is agreement on who has the authority to put items on or take items off the agenda before it is published. 11 . Members feel free to critique each other's positions on issues. 12. The City Council works well as a team. 13. Our Council does not engage in solution "reengineering" at City Council meetings. 14. City Council members avoid lecturing members of the audience - even if deserved. 15. Staff provides all the significant alternatives P gn in their staff reports. 16. The City Council has developed 'ts own mission statement and goals. PAGE 40 17. The Chair prevents dominate City Council members from having a disproportionate influence. 18. We do not get stalemated over process. 19. The City Council does not spend too much time modifying or correcting the minutes of meetings. 20. Civilized disagreement is a City Council strength. 21 . Team members actively listen to each other. 22. Staff does not get overly involved in policy discussions. 23. Meaningful public participation is encouraged. 24. Staff does not filter the information it passes on to the City Council. 25. I know what our City Council's top five goals are. 26. The Chair protects City Council members from audience or colleague attacks. 27. We made significant progress on our top goals last year. 28. Operating riles and procedures are known by all members. 29. Baggage from one argument is not carried to the next. 30. While members may have position, minds are not made up before meetings. 31 . Individual Council members do not try to micro-manage. 32. We keep the audience infonned of each item, the issue, the background and the possible decisions. 33. Staff follows through as promised. PAGE 41 34. Our day-to-day City Council decisions are consistent with the overall goals of the community. 35. The chair actively solicits feelings and opinions from reticent city Council members. 36. City Council deliberations usually produce a product that is superior to any one person's ideas. 37. The agenda packet is user friendly. 38. Decisions are usually rnade only after each member has had his/her say. 39. Members are open with each other. 40. The City Council adequately communicates its goals and philosophies to staff: 41 . Members of the audience do not feel intimidated when appearing before the City Council. 42. Openness and trust exists between the City Council and staff. 43. Our City Council develops an annual work program with clear objectives. 44. Our City Council develops an annual work program with clear objectives. 44. The chair does not unfairly use the powers of the chair to win a point or argument. 45. The City Council is not reluctant to make a controversial decision. 46. Agendas are balanced - not too many controversial or time consuming items on each agenda. 47. Members know how to keep conflict from becoming destructive. 48. Members tnist each other. PAGE 42 49. The City Council stays away from administrative and operating details. 50. City Council members take care to observe the appearance as well as the principle of impartiality. 51. Staff does not surprise the City Council-at meetings. 52. Our priorities do not change to often. 53. In our meetings, the discussion rarely drifts off of the subject. 54. This city Council is adept at identifying and exploiting opportunities. PAGE 43 rt INTERACTION WITH THE PUBLIC This Council has always endeavored to show respect to the petitioners who come before it. This will continue to be the case. The public should also be aware that as in the past, the Council and staff will be responsive to the public about all issues over which the city has influence. Answers to requests may come sometime after the Council meeting so that on reflection, a suitable response.can be formed. The emphasis is on timely response. It should be recognized that the substance of the response given may not always be in agreement with the petitioner's views. PAGE 44 CAN SOCIETY RENEW ITSELF? As we read about events described in the daily newspaper and as we watch the activities of our state and national political leaders most of us have come to the conclusion that there is something wrong. However, let me assure you that the renewal of our society will not come from Washington, Sacramento or even City Hall in Huntington Beach. Renewal of our society will come from the neighborhoods of Huntington Beach. That is the challenge to us all. PAGE 45 A TEN-YEAR REVIEW OF HUNTINGTON BEACH 1992 —2002 RALPH BAUER Many events have occurred in Huntington Beach in the last ten years that have helped it move from what at one time was a sleepy little beach town where records tended to be kept "on the back of an envelope" to a sophisticated city among America's 100 or so largest. Huntington Beach today is an organization where time lines, deadlines, regular progress reports on important projects, and written goals and objectives have become routine. What is more, an entrepreneurial spirit has been engendered. The sum total of all of these activities makes Huntington Beach today one of the best-managed cities in the United States. The summary below illustrates not only the level of sophistication, but also shows the city's responsiveness to the realities of today's society. Many abhor the urbanization that has been thrust upon us. However, this urbanization is the natural result of people wanting to live in a desirable area. The most effective way to deal with urbanization is to manage it—not fight it. Fighting it is useless because the economic factors in a capitalistic system are more powerful than any countervailing force. Management of urbanization, of course, includes preservation of open space and Huntington Beach has been at the forefront of this in helping preserve over 1200 acres of Bolsa Chica wetlands, purchasing of land to preserve 356 acres of Central Park, and the purchase of much parkland and other environmentally sensitive habitats. The many events of the last ten years suggest that this may be among the most significant period in the city's history. All have participated in forming these events. Some events have occurred due to staff actions, some events have occurred due to elected officials, some events have occurred due to the citizenry, and some events are just fortuitous. In evaluating city performance against the activities of private industry as well as many other cities, the city receives high marks as shown by "The Best" awards in many categories shown in the body of this report. Meanwhile, the city has adopted budgetary disciplines, weathered the county bankruptcy, and continued to provide core services in an exemplary fashion. Critics of the city mention poor economic growth, rundown venues, high government expenses, poor land use decisions, and overpaid employees. The body of this report shows the critics to be wrong: many new businesses and over 5000 jobs have been added; the city services are cost-effective and the city has the lowest per capita number of employees of the 100 largest U.S. cities; land use follows an award winning General Plan developed with substantial citizen input; the total compensation of employees is not the highest in Orange County, but is somewhere in the middle of the upper half of significantly competitive cities; and the practice of "spiking" has been stopped. It should be noted that the city is highly credit worthy as evidenced by their bond rating of AA. There has been a substantial increase in both sales tax and transient occupancy tax to offset state takeaway of$8,000,000 annually. 1 Since Proposition 13 was enacted, municipal financial support for critical services has decreased substantially. This has occurred since Proposition 13 gave the State Legislature the authority to use property tax dollars in whatever manner they choose. Thus, in recent years, the State Legislature has taken property taxes to fund non- municipal activities rather than raise funds in other ways to fund these non-municipal activities. In Huntington Beach, this loss has amounted to about $8,000,000 annually for the last nine years. There has, however, been a benefit in that cities must budget more carefully for services to maximize cost-effective delivery. This is, of course, done every year so the process tends to be self-correcting. It is important to note that the tax rate in Huntington Beach has declined in the last 10 years due to paying off bonds and self-funding employee retirement with General Fund revenues. Tight budgets have lead to other money-seeking practices. One of these is pursuing entrepreneurial activities, all of which are summarized in the body of this report. Another is the fiscalization of land. Unfortunately, this has lead to land use planning that is not always acceptable to all of the community. Improved income to the city via increasing sales taxes and transient occupancy taxes, however, has been beneficial. A third money generating strategy has been the limited and wise use of redevelopment. Again, this has met with citizen opposition. Nevertheless, over the long term, there will continue to be substantial income return to the city from redevelopment amounting to tens of millions of dollars. In addition, blight is removed, visitors serving commercial enterprises come into being, and as required by state law some affordable housing is built. Debt generated by the city's redevelopment program is caused in part by an artificiality of land transfer from the city to the city's redevelopment agency. Such land or other assets are returned to the city during and at the end of the redevelopment life to more than settle the debt. For example, the Redevelopment Agency will return $1.8M to the General Fund in the 2002-2003 fiscal year. Any joint financial effort by the city and the private partner in a project is fully and conservatively financed by income streams of high certainty. The benefit of such a joint project continues long after the redevelopment agency goes out of existence and all debt is paid off. The redevelopment projects in the last 10 years have addressed only vacant and underutilized commercially zoned land. Eminent domain has not been used. 2 To give a flavor of financial successes the city has experienced to offset the $8,000,000 loss in property tax taken by the State Legislature, some income data are given below: Income in Millions of Dollars 1992 2000 Property Tax 27.7 34.0 Sales Tax 16.0 25.1 Transient Occupancy Tax 0.9 1.8 Parking 0.8 1.7 City Rentals 0.2 0.35 Bus Shelters and Benches 0.03 0.6 Coca Cola Contract 0 0.3 Grants 1.5 16.7 Jail Rental 0 0.9 Fire Med 3.3 4.5 Years 2000—2001 Years 2002-2003 In the final analysis, a report card on the quality of the city depends on how people vote with their pocketbook. The steadily increasing housing prices in Huntington Beach in the face of a sharply declining stock market and low bond interest suggests that people want to live in Huntington Beach because it is a desirable place to live. Interestingly, existing residents purchased about 50% of all the more expensive new houses in Huntington Beach. The enclosed summaries are indicators of how elected officials, staffs, and residents have contributed to this desirability. The citizens may not like the City Council but they like living in Huntington Beach because of what local government has accomplished. This report lists accomplishments by the City Council and by all 13 departments. It should be noted that many of the items shown have a long and sometimes complex story associated with them. These stories can be elicited from the departments involved. In the interest of brevity, the details are not included here. It is suggested that elements of this report be circulated to the public, the media, members of City Boards, and newly elected City Council Members. 3 ADMINISTRATION 1. Lobbying representation in Sacramento and Washington. 2. Active and aggressive grant writing. 3. Receipt of tens of millions of county, state, and federal monies. 4. Employee retirement funded by General Fund, not property tax. 5. Large majority of under-funded liabilities are being funded. New interfund borrowing eliminated. 6. Outside revenue underwriting for Channel 3. 7. New programming for Channel 3. 8. Your City, Your Issues from Council Members and HB Weekly Report. 9. Report from the Mayor. 10. Quality Improvement Program and other Customer Service Programs. 11. Scheduled management audits of all departments. Thus far, Police, Administrative Services, Planning, Building and Safety, City Attorney, City Treasurer, Public Works, and Community Services have been audited. 12. Upgraded Internet website. 13. City information system available by phone on a 24/7 basis, Community Connection Newsletter on Internet, and The Sands. 4 ADMINISTRATIVE SERVICES 1. Consistency in Memoranda of Understandings (MOUs) with past practices, work rules, and state and federal law. 2. Evaluation of real estate assets for disposition and/or improved financial return. 3. Vehicle Utilization Plan. 4. Upgrade of computer and data processing system, thereby increasing productivity and enhancing record keeping. 5. Changed Personnel Board selection process. 6. New more-efficient payroll system. 7. Risk Management is more selective and thus reducing costs. 8. Two-year budget. 9. Fiscal year—October 1 to September 30—to better anticipate state funds for city. 10. Five-year financial plan. 11. Improved bus shelter and bus bench program resulting in many fold income increase. 12. Annual review of user fees in budget. 13. Orange County bankruptcy impact dealt with and overcome. 14. New agreements in place or scheduled for all lessees of city property to increase income. 15. Spiking stopped. 16. New Department Heads are all at-will employees. 17. Employee classification study. 18. Established a reserve of 7% of the General Fund Budget. 5 BUILDING AND SAFETY 1. Building inspectors cross-trained for more efficient building inspections. 2. Permitting and plan check process streamlined. 3. Developing Building Permit Internet Access System. 6 CITY ATTORNEY 1. Created the Administrative Citation Program 2. Developed and streamlined the City's contract processing 3. Zagustin: Eliminated nuisance house. a. Expanded nuisance ordinance to provide city with greater enforcement tools. b. Spearheaded development of Nuisance Task Force 4. Legal Affairs/Settlement Committee: To consider, approve and make recommendations regarding legal issues and cases. 5. McDonnell Douqlas: Breach of contract case; recovered 1.35 million dollars. 6. Peck Reservoir: Obtained favorable settlement of Peck lawsuit, resulting in new roof for reservoir; acquired additional property for Peck Reservoir expansion. 7. CENCO: Successfully prosecuted lawsuit. No more oil tankers offshore from Huntington Beach. 8. Nude Entertainment: Lead fight against nude entertainment in city. Nude Juice Bar closed. 9. Huntington Harbor Task Force: Address amendments to the Municipal Code to strengthen code enforcement capabilities. 10. Trench Cut Ordinance: To improve city streets 11. Tort Litigation: Successful defense verdicts on high profile cases (i.e., Haserort— Schoap) 12. Labor/Grievances: Proactive in early intervention in the disciplinary process. 13. Law Library: reduced hard book costs; utilized on-line research tools. 14. Lawsuit Status Sheet. 15. Quarterly Lawsuit Status Report. 7 CITY CLERK 1. Establishment of Passport Facility in City Clerk's Office for community's convenience. 2. Internet access to all City Council records. 3. First City Clerk's Office in State to have Municipal and Zoning Code available to the public on the Internet and updated as amendments enacted. 4. Establishment of City Clerk's Volunteer Program, which benefits from the talents and resources of the community. 5. Access to City Council Agendas and Action Agendas on the Internet. 6. Official City Historian appointed by the City Council (retired City Clerk, Alicia M. Wentworth), logged 10 years of volunteer, city historical work with the community. Also collaborated on City History Pictorial Book with book signing ceremony at Barnes & Noble Bookstore, Images of America — Huntington Beach, California." 7. Worked closely with Veteran's groups in the creation of the Time Capsule for the Veteran's Memorial. A 8 CITY COUNCIL 1. New Boards, Committees, and Commissions formed: • Children's Needs Task Force • Community Participation Allocation Board for CDGB fund allocation • Finance Board • Investment Advisory Board • Human Relations Task Force • Mobile Home Advisory Board • Public Works Commission • Settlement Committee liaison • Specific Events Committee • Beautification, Landscape, and Tree Committee • Water Quality Management • Communications Committee • Competitive Services Committee • Economic Development Committee • Intergovernmental Relations Committee • Legal Affairs Committee • School District Liaison Committee • Southeast Area Committee • Downtown Task Force and Committee 2. Involvement in many regional organizations: • Coastal Commission • League of Cities • Southern California Association of Government • Orange County Council of Governments • Integrated Waste Management Commission • Citizens Advisory Committee to the Orange County Transportation Authority • Santa Ana River Flood Protection Agency • Orange County Sanitation District • West Orange County Water District • Public Cable Television Authority • Orange County Harbor, Beaches, and Parks Commission • Founded West Orange County Cities Association • Founded California Coastal Coalition • Orange County Coastal Coalition • Leader of West Orange County Light Rail System 3. Wrote and adopted Human Dignity Statement that was also adopted by the Orange County League of Cities and the State League of Cities. 4. Formation of Greater Huntington Beach Interfaith Council. 5. Formation of Tree Society. 9 i City Council (continued) 6. Mayor's Award for outstanding employees. 7. Mayor's Breakfasts for community. 8. West Orange County Light Rail project in planning stages. 9. Oakview collaborative 10. Civic Center artwork transported from Seacliff Shopping Center. 11. Community Clinic expansion. 12. Goals, objectives, and priorities adopted by Council and all departments. 13. Logging and follow-up of citizen complaints. 14. Veterans Memorial. 15. Council ethics, election reform and gift ban ordinance adopted. 16. Adoption of four-hour rule for Council requests. 17. AES pollution and operation control contract enacted with State, South Coast Air Quality Management District (SCAQMD), and AES. 18. AES Beautification Plan adopted. 19. Sanitation Plant Beautification Plan adopted. 20. Founded California Coastal Coalition 21. Received many awards including: • America's safest city • Best California city for business • Best city for raising children • Best city for women • Best Central Park • Best pier • Best parade • Best beach with an "A" for cleanliness and no pollution • Best auto boulevard • Best city in which to live in Orange County 22. Bolsa Chica wetlands - purchased, saved, and restoration plan in place to begin in 2003. 23. Council Outreach Program to five areas on five different Saturdays. 24. Public Comments put early on the Council Agenda. 25. Outdoor dining and kiosk ordinance. 26. Year 2000 celebration. 10 City Council (continued) 27. Ordinances on graffiti, aggressive panhandling, and wild parties. 28. Transportation Center at Golden West College. 29. Bus connection to Blue Line. 30. Sponsorship of Southern California Rail Symposium. 31. Anti-smoking ordinance. 32. Tree City USA designation. 33. Conference and Visitors Bureau reorganized. 34. Received many awards from the Orange County Human Relations Commission. 35. Sanitation District 301 h Waiver application eliminated. 36. Shopping cart pick-up program. 11 CITY TREASURER 1. Improved billing and collection resulting in substantial income increases. 2. Improved investment strategies. 3. Selection of banking services by competitive bid. 4. Selection of collection agency by competitive bid. 5. Investment Advisory Board. 6. Updated computer and data processing. 7. Addition of$1 million AES Power Plant property tax to the city vs. countywide distribution of these taxes. 12 COMMUNITY SERVICES 1. Pier Plaza. 2. South Beach Improvement— Phase I complete; Phase 11 started with new Lifeguard Headquarters and new Jr. Lifeguard building to be built. 3. New Tower Zero. 4. Ruby's, Dukes, and Chimayos built and returning income to the city. 5. Lifeguard trucks donated by Chevrolet. 6. Pier Plaza Summer Concerts. 7. ATM machine at Pier Plaza returning substantial funds to the city. 8. Art in public places are a part of business and housing entitlements. 9. New Art Center built. 10. Sports Complex in Central Park with eight softball fields overlaid with soccer fields and parking for 850 cars. Contaminated land is cleaned up. 11. Special Events Committee in place. 12. Band concerts in Central Park. 13. School field use coordination. 14. New lights on many sports fields. 15. New Huntington Beach High School pool. 16. City gym and pool rebuilt. 17. New beach maintenance yard. 18. Shipley Nature Center upgrade. 19. Urban Forest started. 20. Central Park Master Plan complete. 21. New RV Park to be built. 22. Parking structure financially self-sufficient. 23. New Senior Center concept complete. 24. Many new buses for senior citizens. 25. Gun range taken back and clean-up plan in process with financing planned. 26. Many new parks purchased and developed. 27. New Tot Lot equipment in all parks in compliance with federal safety rules. 28. Annual youth sports grant program. 13 Community Services (continued) 29. Seapoint and PCH beach access. 30. Linear Park started. 31. Cultural Master Plan. 32. Coca Cola agreement in place netting $600,000 annually to the city. 33. New beach railings. 34. Pacific Coast Marathon and many new beach events. 35. Doggie Beach and Doggie Park. 36. Land acquisition by Huntington Beach Conservancy. 37. River Park being planned and enhanced. 38. City Store in place. 39. Frisbee golf field. 40. Equestrian events to raise money for Art Center. 41. Equestrian Center upgrade and new contract. 42. Quimby Act fees enacted to reflect true cost of land acquisition. 43. Film and photograph coordination; permitting and fee structure in place. 44. Central Park bandstand. 45. Huntington Harbour fees, docks, live-aboard, and dredging ordinances begun. 46. $3.5 million Meadowlark Golf Course renovation 47. Beach Public Services Center 48. Simple Green/local civic groups winter beach cleanup program 49. Coastal Commission/City Beach Clean Up Days 14 ECONOMIC DEVELOPMENT 1. Addition of an estimated 5,000 jobs 2. HCD approved Housing Plan including affordable housing as required by state law. Completion of 37 affordable housing projects, creating 1,032 affordable units. An additional six projects are currently underway, which will provide 465 new affordable units. 3. Formation of Red Team with regular meetings for business attraction 4. New projects in place or being built" - Plaza Almeria - Huntington Beach Mall - Bella Terra Hyatt Hotel - Magnolia/Adams Rehab - Blocks 104/105/CIM -The Strand - Wal*Mart - Peninsula Shopping Center - South Beach Improvements with pedestrian bridge over PCH. - The Fountains Senior Project- 271 - Bowen Court Senior Project - 20 units units 5. Boeing McDonnell Douglas Industrial area master planned with the following new businesses in place: Cambro, Dynamic Cooking, Airtech, C & D Aerospace, DIX Metals, Extended Stay Hotel, Konica, Sharp, Pacific Shoes and Morgan Metals. Second phase assisted with Community Facilities District, currently marketing phase. 6. Reader board for Beach Boulevard of Cars with new dealers and expansion of existing dealers. New dealers included: Daewoo, Hummer, Nissan, KIA, Hyundai, Mitsubishi. Voted "Best Auto Mall" by Orange County Register for three years in a row. 7. Former Weiser Lock building converted into the West County Commerce Center by Sares-Regis with new businesses including: Quiksilver, Gibo-Kadama Chairs, Creative Teaching Press, Boeing, Purcell Murray and Thermador 8. Edinger Corridor Economic Development Action Plan and Specific Plan - three public workshops held and documents are near completion. 9. Regular business outreach and visits 10. Hotel Association formed/Hotel/Motel Business Improvement District approved, increasing marketing of Huntington Beach, CA 92648 as overnight destination with $350,000 additional not paid for with City funds. Nineteen hotels/motels working together to promote the City. BID facilitated by City. 11. Restaurant Association formed 15 Economic Development (continued) 12. CPH concept plan for 31-acres and Hilton submitted 13. Town Square Project put into receivership and sold 14. Small Business Assistance Center: Small business seminars by Chamber of Commerce. Fully booked —one-on-one counseling for businesses each week. 15. Annual Economic Development Conference with Chamber 16. Annual kick-off with Chamber 17. Adoption of a new redevelopment project area: Southeast Coastal Redevelopment Project. 18. Approve extending the ability of the Redevelopment Agency to incur debt for the Huntington Beach Project providing additional flexibility in scheduling projects. 19. Obtained a $2 Million BEDI Grant for the Hyatt project (Brownfields grant from HUD that also assists in creating jobs). 20. Used the Section 108 loan program from HUD to accomplish historical rehabilitation of the City Gym & Pool and to assist the Agency with lower cost financing in the Hyatt project under Economic Development/Job Creation. 21. Launched the Economic Development Web page: www.hbbiz.com. 22. Won the California Redevelopment Associations' 2002 Award for Excellence in the mixed-use category for the Plaza Almeria project. 23. Beach Boulevard Median Landscaping complete. 24. Since 1993, the City has allocated over$2.47 million in Redevelopment Agency funds and over$4 million in HOME funds for acquisition and rehab of over 80 affordable housing units in the Oakview Enhancement Area alone. 25. Almost 200 single-family housing rehabilitation loans to preserve affordable housing stock. 26. Almost $1 million/year in CDBG funds for infrastructure and capital improvements throughout the City. 27. Over$250,000/year in CDBG funded public service activities. 28. Formation and implementation of Huntington Beach Collaborative. 29. Community Job Center. 30. McDonnell Douglas acquired by Boeing. 16 FIRE DEPARTMENT 1. New Seacliff Fire Station. 2. Paramedic services improved. 3. New response times adopted. 4. Fire Med Program in place. 5. New fire equipment. 6. Repairs in older fire stations. 7. Aggressive safety inspection program. 8. New Fire Codes. 9. Opticom System for signal preemption at busy intersections thus improving response time. 10. Emergency Operations Center upgraded and practice sessions held. 11. Disaster preparedness plans in place and simulated disaster events took place. 12. Aggressive clean up of oil operations. 13. Clean-up program in Holly-Seacliff with agreement to be signed by Chevron, PLC, and city. 14. MTBE clean up being monitored and importance emphasized to oil companies and Orange County Health Department. 15. Fire works banned. 16. Level II Insurance Service Organization Rating that reduces homeowners fire insurance rates. 17. Hazmat program upgraded. 17 LIBRARY 1. Teleconferencing. 2. Library expansion completed which included a new auditorium and largest Children's Library in the west. 3. Oakview Library opened with tutoring and homework clubs in place. 4. Book budget increased. 5. Library open every day. 6. Library parking lot expanded. 7. Rental of facilities improved with increased income to Library. 8. Concourse d'Elegance car show for fund raising. 9. Friends of the Children's Library founded. 10. Concert program in place. 11. Three art display venues in place. 12. Computer system in place. 13. Non-resident Library fee in place. 14. Genealogy Library added. 15. Playhouse contract renegotiated. 16. Aggressive room rental program. 18 PLANNING 1. New prize winning General Plan including all optional sections included New Urban Design Guidelines 2. Zoning brought into conformance with General Plan 3. Successor to Chevron, PLC, has nearly completed one of the largest home building projects in city history. The entitlements allowed 4,400 homes. Only about 2,400 homes have been or will be built thus reducing traffic 4. Ascon-Nesi site problems identified and the State Department of Toxic Substance Control is requiring a clean-up plan to be implemented 5. Oil production along Pacific Coast Highway between Goldenwest and Seapoint is master planned for future use as required by the Coastal Commission 6. The "White Hole" area between Beach and Newland along Pacific Coast Highway is being resolved with the wetlands being preserved and commercial area to be upgraded 7. The 31-acres north of the Hilton is the subject of a preliminary proposal from the CPH Corporation. The proposal calls for commercial on the front and housing on the back of this acreage 8. Neighborhood Enhancement Program 9. Upgraded code enforcement 10. Downtown Parking Master Plan approved by Coastal Commission 11. In-Fill Ordinance in place 12. New Landscape Ordinance in process 13. Building Standards (Division 9) upgraded 14. New projects in place or being built: • Standard market replacement—Zeidan Brothers • Expo Design • Home Depot • Wal-Mart • Lowe's • Five Points rehab • Brookhurst and Adams rehab 19 POLICE DEPARTMENT 1. New towing ordinance 2. Community Oriented Policing 3. Two new no-tail rotor helicopters 4. Jail Rental Program for inmates and other arrestees 5. America's Safest Large City for 10 years 6. Job Center for day laborers 7. Fourth of July civil unrest problem eliminated 8. New Police Substations 9. 800 Megahertz county-wide communications system 10. New more modern computer system 11. Crime lab modernization 12. Retired Senior Volunteer Police 13. Massage Parlor Ordinance 14. Improved dispatch 15. Nuisance House Task Force 16. Anti-Crime Coalition 17. Updated Neighborhood Watch 18. Citizen Police Academy 19. One of USA's Safest Cities 20 PUBLIC WORKS 1. Water Master Plan complete and funded. 2. Sewer Master Plan complete and funded. 3. All streets slurry sealed every 7 years, which saves in paving costs. 4. Curb, gutters, and sidewalk priority system. 5. Tree Management Plan. 6. Comprehensive infrastructure needs assessment completed with substantial citizen input - costs determined and strategies determined. 7. Charter Amendment committing 15% of the General Fund annually to infrastructure with Public Works Commission oversight. 8. Computer controlled traffic system in place and expanded. 9. Full implementation of ultra low wattage traffic lights saving 90% of electric costs. 10. Battery backups for signals at key intersections. 11. Direct involvement with Orange County Water Board to prevent salt-water intrusion and maintaining aquifer. 12. Closer involvement with Orange County Transportation Authority (OCTA) and Cal Trans resulting in increased grant awards for traffic improvements. 13. Attainment of greater than 50% solid waste diversion as required by AB 939. 14. Traffic reflectorized pavement markers throughout the city on arterials. 15. Flood control channels upgraded with county, state, and federal support. 16. New potable water wells. 17. Four new or rehabilitated water reservoirs in place to improve emergency supply to over 50 million gallons. 18. West Orange County Water District deferred maintenance issue solved. 19. Material Recovery Facility (MRF) in place at Rainbow Disposal. 20. Five-Year Capital Improvement Plan established. 21. Holly-Seacliff Reimbursement District formed for street improvements. 22. Many street widening and improvements for traffic safety. 23. Urban Water Conservation Management Program in effect. 21 Public Works (continued) A 24. Flood Plain liability reduced. 25. Many new landscaped areas and many trees planted with assistance of Tree Society. 26. Bluff top erosion addressed and partially funded. 27. CENCO Tank Farm removed and offshore crude transfer anchorage eliminated. 28. Annual Oak View clean up and Cinco de Mayo celebration. 29. Sandbag Filling Program during rainy season. 30. Huntington Harbour bulkheads. 31. Seismic retrofit of all bridges. 32. Trench Cut Ordinance. 33. Graffiti, shopping cart, and pothole hot lines. 34. Banning Bridge connecting SEHB residential areas to/Costa Mesa threat eliminated. 35. Street sweeping citywide every two weeks in response to the Federal Clean Water Act requirements. 36. Urban run-off diversion helping to reduce beach postings by removing surface water from shoreline. 37. Comprehensive urban run-off strategy being developed with Water Quality Management Plan. 38. Many medians landscaped including Beach Boulevard, Warner Avenue, Golden West, and Edwards Street. 39. Street paving strategy. 40. Capital project expenditures on infrastructure for fiscal year 2002-2003 amounts to $110.8 million. This is the largest such program in city history and is supported by grants, funds in place, and dedicated income streams. The expense represents 30% of the total budget and is larger than employee salaries and benefits. The latter amounts to $104.0 million or 28% of the budget. 22 GZn�a�� December 14, 2017 City of Huntington Beach 2000 Main Street, CA 92648 Dear Mr. Mayor and City Council Members On December 4, 2017 the City Council Majority vote took an action which deprived Councilmember Billy O'Connell the opportunity to serve as Mayor pro tem and ultimately as Mayor. This, despite the minute action of a Council nearly thirty years ago making such appointment rotational based on the votes cast and tenure in office. This practice has been followed by all councils since the adoption. I am sure you feel you action was justified; however there are important issues which have come into play. 1. A duly elected official will have less opportunity to voice opinions, which reflect the opinions of the people that voted for him. 2. The community will become polarized on this issue and thus will tend to interfere with reaching consensus on this and other issues which come before you. 3. Historically the tradition selection of the Mayor and Mayor Pro tem was initiated to address cliques on the Council which were constantly at war with each other as was prevalent at that time. Most citizens abhor the notion that cliques on the Council should govern the people of Huntington Beach. 4. There appear to be valid grounds for a protracted legal battle which would not be conductive to future conduct of City business. (Enclosure) I respaaUuely request that you rescind your action of December 4, 2017 and vote to appoint Billy O'Connell as Mayor pro tem. The bottom line is that all viewpoints should be respected whether one agrees with them or not. This is a basic tenet of Democracy in America. Respectfully, ����i-�" Ralph Bauer +�'� N T/iv L jTi p/ Cc: City Attorney Michael Gates Ralph Bauer 16511 Cotuit Circle Huntington Reach, CA 9264.9 December 15, 2017 Mayor Mike Posey Mayor Pro-Tempore Erik Peterson City Council Member Jill Hardy City Council Member Barbara Delgleize City Council Member Patrick Brenden City Council Member Billy O'Connell City Council Member Lyn Semeta Huntington Beach City Council 2000 Main Street Huntington Beach, CA 92648 RE: Notice of December 4, 2017 Brown Act Violation Dear Mayor Posey, et al., Outlined herein is what I believe to be a substantial violation of a central provision of the Ralph M. Brown Act (Brown Act) by the Huntington Beach City Council regarding action taken at its December 4, 2017 meeting relating to City Resolution 6320. Resolution 6320, first adopted by the Huntington Beach City Council in September 1991, details Parliamentary Procedure for selection of the City's Mayor and Mayor Pro-Tempore. At its December 4, 2017 City Council Meeting the Huntington Beach City Council voted "to set the resolution aside" (Council Members Posey, Peterson, Semeta and Delgleize voting in favor). This action was not in compliance with the Brown Act because there was no adequate notice to the public on the posted agenda for the December 4, 2017 meeting. Therefore the public had no idea that Resolution 6320 could be set aside by this City Council Majority for purposes of rejecting voters'intent as it relates to the selection of the City's Mayor and Mayor Pro-Tempore. Next page, please -2- The Brown Act creates specific agenda obligations for notifying the public with a "brief description" of each item to be discussed or acted upon. No such description regarding Resolution 6320 was contained in the December 4, 2017 City Council agenda. Therefore it is contended that the action taken to "set aside"Resolution 6320 is illegal and invalid. The good news, however, is that righting this wrong will not require legal action. Pursuant to Government Code Section 54960.1, and on behalf of all Huntington Beach residents, I ask that the Huntington Beach City Council correct its mistake at its next regularly scheduled City Council meeting by: 1. Recognizing that the City Council's formal vote to override the will of the people by setting aside Resolution 6320 without proper notice was a violation of the Brown Act and is, therefore, invalid; 2. Agendizing the removal of Council Member Erik Peterson as Mayor Pro- Tempore given that his selection as Mayor Pro-Tempore on December 4, 2017 violates Resolution 6320 provisions; 3. Agendizing a new election of Mayor Pro-Temporefor the ensuing year by selecting City Council Member Billy O'Connell as Mayor Pro-Tempore as required by Resolution 6320. As provided by Section 54960.1 you have 30 days from the receipt of this request to correct the challenged action or inform me of your decision not to do so. I have no doubt that this Huntington Beach City Council will do the right thing in the critical days ahead. Respectfully, Ralph Bauer Cc: City Attorney Michael Gates F" L y F 6 Nj /4- Under the Act, the recording of closed sessions is authorized by section 54957.2 only to the extent that such recording is accomplished with the knowledge or consent of the other participants in the closed session,pursuant to the requirements of Penal Code section 632. (62 Ops.Cal.Atty.Gen. 292 (1979).) CHAPTER VII. PENALTIES AND REMEDIES FOR VIOLATION OF THE ACT If a person or member of the media believes a violation of open meeting laws has occurred or is about to occur, he or she may wish to contact the local body, the attorney for that body, a superior agency or the district attorney. If such contacts are not successful in resolving the concerns,the complainant may wish to consider one ofthe remedies or penalties provided by the Legislature to combat violations of the Act. These include criminal penalties,civil injunctive relief and the award of attorney's fees. In addition, with certain statutory exceptions, actions taken in violation of the Brown Act may be declared null and void by a court. 1. Criminal Penalties The Act provides criminal misdemeanor penalties for certain violations. Specifically,the Act punishes attendance by a member of a body at a meeting where action is taken in violation of the Act, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled. (§ 54959.) The term "action taken"as defined by section 54952.6 includes a collective decision, commitment or promise by a majority of the members of a body. The fact that the decision is tentative rather than final does not shield participants from criminal liability;whether"action"within the meaning of the statute was taken would be a factual question in each case. (61 Ops.Cal.Atty.Gen. 283,292- 293 (1978).) Mere deliberation without the taking of some action will not trigger a criminal penalty. 2. Civil Remedies A. Injunctive,Mandatory or Declaratory Relief The Act provides two distinct types of civil remedies: (1) Injunction, mandamus or declaratory relief to prevent or stop violations or threatened violations. (§ 54960.) (2) Action to void past acts of the body. (§ 54960.1.) 44 These remedies are discussed in turn below. The district attorney or any interested person also may seek injunctive, mandatory or declaratory relief in a superior court. (§ 54960.) An"interested person"may include, in addition to the public, a public entity or its officers. Unlike the criminal remedy, these civil remedies do not require that the body take action or that the members act with a specific intent to deprive the public of information to which the members know that the public is entitled. In granting complainants the power to seek injunctive,mandatory or declaratory relief, the Legislature indicated on the face of the statute that such remedies were available to stop or prevent violations of the Act. (§ 54960.) This point was reiterated by the California Supreme Court in the case of Regents of the University of California v. Superior Court (1999) 20 Cal.4th 509, 522, where it concluded that these remedies were not available to redress the past actions of a body. However,with respect to state agencies,the Legislature quickly acted to supersede this interpretation. (See§ 11130.) A body may not always announce its intended action so as to give rise to an action for injunctive, mandatory or declaratory relief. Under these circumstances, the plaintiff may seek to support its case by demonstrating that a pattern of past conduct indicates the existence of present or future violations. (Shapiro v. San Diego City Council (2002) 96 Ca1.App.4th 904; Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) Alternatively, the body may seek to demonstrate that there is a current controversy that is evidenced by past practices of the body, and the body has not renunciated such practices. (CAUSEv.CityofSanDiego(1997)56 Cal.AppAth 1024, 1029.) The court indicated that since the city would not admit to a violation it was likely that the current practices would continue. The court in Common Cause v. Stirling(1983) 147 Cal.App.3d 518, 524, concluded that courts may presume that a municipality will continue similar practices in light of the city attorney's refusal to admit the violation. Where a legislative body has committed a violation of the Act concerning the conduct of closed sessions subject to the Act,a court may order the body to tape record future closed sessions pursuant to the procedures set forth in section 54960(b). B. Voidability of Action Either interested persons or the district attorney may seek to have actions taken in violation of the Act declared null and void by a court. (§ 54960.1.) In Boyle v. City of Redondo Beach (1999) 70 Cal.AppAth 1109, 1118, the court ruled that merely conferring with and giving direction to staff,where no vote was taken and no decision made, did not constitute action that could be adjudged null and void. 45 The Act specifically provides that before a suit can be initiated,the complainant must make within 90 days a written demand to the board to cure or correct the violation, unless the action was taken in an open session but in violation of section 54954.2 (agenda requirements),in which case the written demand shall be made within 30 days from the date the action was taken. (§ 54960.1(c)(1); County of Del Norte v. City of Crescent City (1999) 71 Cal.AppAth 965, 978; Bell v. Vista Unified School Dist. (2000) 82 Cal.AppAth 672,684.) The Act further provides that if the board refuses or fails to cure or correct a violation of sections 54953,54954.2,54954.5,54954.6,54956 or 54956.5 within 30 days from receipt ofthe written demand,the complainant may file a suit to have the action adjudged null and void. (§ 54960.1(c)(3).) Suits under this section must be brought within 15 days after receipt of the body's decision to cure or correct, or not to cure or correct; or 15 days after the expiration of the 30-day period for the body to cure or correct--whichever is earlier. (§ 54960.1(c)(4); see Boyle v. City of Redondo Beach (1999) 70 Cal.AppAth 1109, 1117, fn. 5.) Once an action is challenged,a body nevertheless may cure or correct that action without prejudice and, where a lawsuit has been filed,may have the suit dismissed. (§ 54960.1(e); see Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109; Bell v. Vista Unified School Dist. (2000) 82 Cal.AppAth 672, 685.) Since a violation may be cured or corrected after a lawsuit has been filed, the plaintiff need not wait for an answer to its demand that a body cure or correct an action before filing suit. (See Bell v. Vista Unified School Dist. (2000)82 Cal.AppAth 672[where the demand and the lawsuit were filed on the same day].) Exemptions are provided in connection with decisions involving bonds, taxes and contracts on which there has been detrimental reliance. (§ 54960.1(d).) Also,actions "in substantial compliance"with the requirements of the Brown Act are exempt. (§ 54960.1(d)(1); see County of Del Norte v.City of Crescent City(1999)71 Cal.App.4th 965,978-979.) Persons having actual notice of matters to be considered at a meeting, within statutorily prescribed time periods in advance of a meeting, are barred from suing to have an action declared null and void. (§ 54960.1(d)(5).) In a case concerning a similar provision of the open meeting law governing state agencies,the California Supreme Court found that the time deadlines for notification and initiation of a legal action could not be extended,even if the defendant fraudulently concealed violations of the open meeting law. The Court concluded that the time deadlines were intended to balance two conflicting policies: the desire to permit nullification of an agency's decisions on the one hand, and the need not to imperil the finality of agency decisions, on the other. Extension of the time deadlines would disturb this balance. (Regents of the University of California v.Superior Court(1999) 20 Cal.4th 509, 527.) For a summary of the foregoing time deadlines for filing a suit to void an action taken by a body see Appendix A. 46 C. Attorney Fees The Act provides for the award of attorney fees. (§ 54960.5.) The Act provides that a plaintiff may receive attorney fees,but the award is against the agency,not the individual member or members who violated the Act. The defendant agency also may receive attorney fees when it prevails in a final determination and when the proceeding against the agency is frivolous and without merit. (Sutter Sensible Planning, Inc. v. Board of Supervisors(1981) 122 Cal.App3d 813, 825-826;Frazer v. Dixon Unified School Dist. (1993) 18 Cal.AppAth 781, 800.) The provision authorizing the award of attorney fees and court costs applies to both trial court and appellate court litigation. (Boyle v. City of Redondo Beach (1999) 70 Cal.AppAth 1109, 1121-1122; International Longshoremen's & Warehousemen's Union v. Los Angeles Expert Terminal, Inc. (1999) 69 Cal.AppAth 287, 302-304.) However, the award of fees is in the nature of a sanction and therefore, due process must be observed in the making of the award. Accordingly, the court must make written findings in order for a reviewing court to determine whether the awarding court properly exercised its discretion. (Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109.) In Common Cause v.Stirling(1981) 119 Cal.App.3d 658,the trial court measured the petition for attorney fees under section 54960.5 against the standards established in Code of Civil Procedure section 1021.5, regarding the enforcement of an important right affecting the public interest. Since the trial court concluded that attorney fees would not have been justified under section 1021.5, it refused to grant an award under the Act. The appellate court reversed,stating that even though recoveries would be small under normal principles, the damage was to the public integrity and,therefore,the Legislature had determined that public funds should be made available to pay for attorney fees to enforce these laws. Factors which should be considered in determining whether an award of attorney fees would be"unjust"and, therefore, should not be made, include the effect of such an award on settlement,the necessity for the lawsuit, the lack of injury to the public, the likelihood that the problem would have been solved by other means, and the likelihood that the problem would reoccur in the absence of the lawsuit. The case was remanded to the trial court which still concluded that the plaintiffwas not entitled to attorney fees. The matter once again was appealed, and the appellate court reversed the trial court a second time. (Common Cause v. Stirling (1983) 147 Cal.App.3d 518.) The court held that the plaintiffwas entitled to attorney fees because it had established a legal principle on behalf of the public. 47 In International Longshoremen's & Warehousemen's Union v. Los Angeles Expert Terminal, Inc. (1999)69 Cal.AppAth 287, 302,the court upheld an award of attorney fees because without the suit,violations of the Brown Act would have been ongoing. There, a for profit corporation claimed that it was not subject to the Brown Act. Plaintiffs demonstrated that the Act was applicable because the entity was created by a city council in order to exercise delegated governmental authority. The award of fees may reflect market rates even though the prevailing party's attorney fees were lower. (International Longshoremen's & Warehousemen's Union v. Los Angeles Expert Terminal, Inc. (1999) 69 Cal.App.4th 287, 303.) 48 INSTITUTE FOR LOCAL GOVERNMENT Promotin, Good Government tit Me Local Level PUBLIC SERVICE ETHICS Potential Consequences of Violating Federal or California Ethics Laws wtiN,NA.ca-il-or /consequences May 2013 Keep in mind that the consequences listed below are only the potential legal consequences of violating ethics laws. Just being accused of violating the law can have unpleasant results, including embarrassment(to the extent that some officials have even moved out of their community), losing a good reputation and the community's respect, financial costs (hiring an attorney and the potential loss of one's job or professional license) and being recalled or losing the next election before the legal process has concluded. Political Reform Violations of the Political Reform Act are punishable by a variety of Act(includes sanctions,depending on the severity of the violation and the degree of intent disclosure and to violate the law that enforcement entities can demonstrate.' disqualification Criminal Sanctions. A knowing or willful violation of the Political Reform requirements, mass Act's requirements is a misdemeanor.'A person convicted of a misdemeanor mailing prohibition, under these laws may not be a candidate for elective office for four years campaign regulation following the conviction.3 Such a conviction may also create an immediate violations) loss of office under the theory that the official violated his or her official duties,4 or create a basis for a grand jury to initiate proceedings for removal on the theory that failure to disclose constitutes willful or corrupt misconduct in office.' Jail time is also a possibility.b In addition, the Fair Political Practices Commission(FPPC)may levy fines of up to$10,000 per violation or more,depending on the circumstances.' Civil Sanctions. Violations prosecuted as a civil matter can also be punishable by civil fines."Also, district attorneys, some city attorneys,the FPPC or a member of the public can bring an action to prevent the official from violating the law.9 if the action is brought by a member of the public,the violator may have to reimburse the costs of the litigation, including reasonable attorneys' fees.10 Administrative Fines. In addition to civil and criminal penalties,the FPPC may impose administrative penalties. The administrative penalty for violating the Political Reform Act is a fine of up to$5,000 per violation." Employment Consequences.Employees who do not comply with the Political Reform Act may be subject to discipline and possibly dismissal under an agency's personnel regulations." Effect on the Agency and Those Affected by Agency's Decision. When a disqualified official participates in a decision, it can void the decision.13 This can have serious consequences for those affected by the decision as well as the public agency. 1400 K Street, Suite 205 • Sacramento, CA 95814 916.658.8208 F 916.444.7535 • www.ca-ilg.org Potential Consequences of Violating May 2013 Federal or California Laws Prohibition Against Criminal Penalties. Willful violations may be punished by fines of up to Interests in $1,000, imprisonment and being disqualified from ever holding public office Contracts again.14 Effect on Contract.The contract also is void, which means the local agency does not have to pay for goods or services received under the contract.15 The agency may also seek repayment of amounts already paid.16 Personal or Political California Civil and Criminal Penalties.Public officials face both criminal Use of Public and civil penalties for using public resources for personal benefit.17 Criminal Resources penalties include a two-to four-year state prison term and permanent disqualification from public office.'$Civil penalties include a fine of up to $1,000 for each day the violation occurs, plus three times the value of the resource used.19 At some point,personal use of public resources becomes embezzlement, a form of theft.20 Embezzlement may constitute"willful misconduct," warranting removal from office, or it may be prosecuted as a felony violation. A public officer convicted of embezzlement of public funds is guilty of a felony punishable by imprisonment; in addition, that person is thereafter ineligible to hold public office in California." Federal Income Tax Violations. Federal prosecutors have been known to treat the receipt of illegitimate expense reimbursements or advances as income to the official. Because the official has not typically reported these payments as such on personal tax returns,the official then becomes subject to an action for income tax evasion. The Internal Revenue Code is notoriously complex and its penalty sections are no exception.The general penalty for willful income tax evasion is a fine of up to $100,000 and up to five years in prison or both.Those convicted are also responsible for paying the costs of prosecution.22 Failure to report information to the tax authorities is punishable by fines of up to $25,000 and/or a year in federal prison, plus the costs of prosecution.23 Federal Mail Fraud. If the U.S. Postal Service was used in any way, such use can also be the basis for a charge of mail fraud.24 Mail fraud is punishable by up to five years in federal prison per violation and/or a fine of the greater of 1)twice the gain to the violator; or 2) $250,000 per violation.25 Federal Corruption and Embezzlement. If the program has any degree of federal funding,the federal criminal laws against corruption and embezzlement also apply.26 Institute for Local Government www.ca-iiq.orq 2 Potential Consequences of Violating May 2013 Federal or California Laws Violation of Ralph Nullification of Decision.As a general matter, decisions that are not made M. Brown Act And according to open meeting laws are voidable.27 After asking the agency to Open Meeting correct the violation,either the district attorney or any interested person may Laws sue to have the action declared invalid.Zg Costs and attorneys' fees may be awarded to those who successfully challenge Brown Act violations.29 Criminal Sanctions.Additionally, governing body members who intentionally violate the open meeting laws may be guilty of a misdemeanor.30 The penalty for a misdemeanor conviction is imprisonment in county jail for up to six months or a fine of up to$1,000 or both.31 Other Measures. Either the district attorney or any interested person may sue to remedy past and prevent future violations of the open meeting laws.32 Another remedy,under certain circumstances, is for a court to order that all closed sessions be tape recorded.33 Costs and attorneys' fees may be awarded to those who successfully challenge Brown Act violations.34 Public Records Act Anyone can sue a public agency to enforce his or her right to access public records subject to disclosure.35 If the agency loses or otherwise produces the records as the result of the lawsuit, it must pay costs and attorneys' fees.36 California and California Law Penalties for Bribery. Receiving or agreeing to receive a Federal Criminal bribe is a criminal act punishable by a combination of prison time,fines, Bribery Laws losing one's office and being forever disqualified from holding public office.37 The specified prison sentence is two to four years in state prison.38 If a bribe was actually received,the fine is a minimum of$2,000 up to either$10,000 or double the amount of the bribe, whichever is greater.39 If a bribe was not actually received,there is still a fine of between$2,000 and$10,000.40 California Law Penalties for Extortion.Extortion by public officials is a misdemeanor.41 Misdemeanors are punishable by up to six months in county jail,a fine of up to $1,000 or both.42 Extortion can also be the basis for a grand jury to initiate removal-from-office proceedings for willful or corrupt misconduct in office.43 California Law Penalties for Accepting Compensation for Appointing Someone to Office. An official who receives payment or favors for an appointment faces the following punishments: forfeiture of office; disqualification from ever holding public office again; and a fine of up to $10,000.44 Federal Penalties. If an agency receives more than$10,000 in federal monies (which many agencies do),an official could be subject to federal prosecution if the amount at stake(for example,a bribe)exceeds$5,000.4' The penalty for bribery under federal law is a fine of up to three times the amount of the bribe or$250,000(whichever is more), up to 10 years imprisonment or both.ab Restitution.The official may be ordered to pay restitution to the agency in the amount of the profit or advantage received(or loss to the agency)as the result of the misuse of the official's position.47 Institute for Local Government www.ca-iiq.org 3 Potential Consequences of Violating May 2013 Federal or California Laws Misconduct in Willful or corrupt official misconduct can create a basis for a grand jury to Office initiate proceedings for removing an official from office.48 Election Law Election Contest.An election result may be challenged in an election contest, Violations the primary purpose of which is to ascertain the will of the people and to make certain that mistake or fraud has not frustrated the public's exercise of its will.49 Any elector of any county, city or of any political subdivision of either may contest any election held in the jurisdiction.so Quo Warranto.The entitlement of a public officer to hold office may be contested in quo warranto proceedings." In rare instances,the attorney general may pursue such actions;more often the attorney general's role is one of granting or denying permission to private individuals to bring such actions on behalf of the public.52 Private individuals cannot bring such actions without first obtaining the attorney general's permission. For more information,visit http://oag.ca.gov/opinions/quo-warranto. Whistle-Blower Any employer who violates this law is guilty of a misdemeanor punishable, in Protections the case of an individual,by imprisonment in the county jail not to exceed one year or a fine not to exceed$1,000 or both and, in the case of a corporation,by a fine not to exceed$5,000.53 A private lawsuit for damages is also possible.14 6r INS'ITCU Basics Ulpdate 3022"'Xorkin Cunse�Iurnecs'fJhle doC." Institute for Local Government www.ca-ii-g.org 4 Potential Consequences of Violating May 2013 Federal or California Laws A. f v t { T t YMA ;. ', -i ✓ L � yn C 4 Y..e y't .� 3t �„�: �--�v.2 ,�,. $ k 'S >�t £ z 3- r _ k : .�g ., �t"'*'.1 References and Resources Note:Sections in the California Code are accessible at hgp://legin o.le islature.ca.gov/.Fair Political Practices Commission regulations are accessible at www.[ppc.ca.gov/index.php?id=52.A source for case law information is www.fndlaw.com/cacases/(requires registration). 1 See generally Cal.Gov't Code§91000-14. 2 See Cal.Gov't Code§91000(a). 3 See Cal.Gov't Code§91002. 4 See Cal.Gov't Code§ 1770(h)(providing a vacancy occurs upon conviction of a felony or of any offense involving a violation of official duties). 5 Cal.Gov't Code§§3060-74(providing for proceedings to be brought by the grand jury for removal from office). 6 See Cal.Penal Code§ 19(providing misdemeanors are punishable by imprisonment in county jail up to six months,a fine not exceeding$1,000,or both). 7 Cal.Gov't Code§91000(b). 8 Cal.Gov't Code§§91004,91005,91007. 9 Cal.Gov't Code§§ 83116(a),91001(b),91001.5,91003. 10 Cal.Gov't Code§§91003,91012. 11 Cal.Gov't Code§ 83116(b). 12 See Cal.Gov't Code§91003.5. 13 See Cal.Gov't Code§91003(b). 14 See Cal.Gov't Code§ 1097. 15 See Cal.Gov't Code§ 1092. 16 Thomson v. Call,38 Cal. 3d 633,214 Cal.Rptr. 139(1985). 17 See Cal.Penal Code§424;Cal.Gov't Code§ 8314. 18 Cal.Penal Code§424. 19 Cal.Gov't Code§ 8314(c)(1). 20 Cal.Penal Code§ 504. 21 Id. 22 See 26 U.S.C.§7201. 23 See 26 U.S.C. §7203. 24 See generally 18 U.S.C.§ 1341 and following. 25 See generally 18 U.S.C.§3571(b)and(d). 26 See,for example, 18 U.S.C.§§641 (crime of embezzlement against the United States),648(misuse of public funds). 27 Cal.Gov't Code§ 54960.1;Cal.Educ.Code§72121(b). 28 Id. 29 Cal.Gov't Code§54960.5. Institute for Local Government www.ca-ilg.org 5 Potential Consequences of Violating May 2013 Federal or California Laws 30 Cal.Gov't Code§ 54959. 31 See Cal.Penal Code§ 19. 32 Cal.Gov't Code§ 54960. 33 Id. 34 Cal.Gov't Code§ 54960.5. 35 Cal.Gov't Code§ 6258. 36 Cal.Gov't Code§6259(d). 37 See generally Cal.Penal Code§ 68(a). 38 Id. 39 Id. 40 Id. 41 Cal.Penal Code§ 521. 42 Cal.Penal Code§ 19. 43 See Cal. Gov't Code §§3060-3074. 44 Cal.Penal Code§ 74. 45 18 U.S.C. §666. 46 See 18 U.S.C. §§ 666(specifying maximum 10 year prison term and fine"under this title"),3571 (general fine for violating federal criminal laws). 47 U.S. v. Gaylan,342 F.3d 1010(9th Cir. 2003). 48 Cal.Gov't Code§§3060-3074(providing for proceedings to be brought by the grand jury for removal from office). 49 See generally Cal.Elec.Code§ 16000 and following.Hardeman v. Thomas,208 Cal.App.3d 153,256 Cal. Rptr. 158(1989). 50 See Cal.Elec.Code§ 16100. 51 See Cal.Civ.Proc.Code§ 803 and following.See also Nicolopulos v. City of Lawndale,91 Cal.App.4th 1221, 1225, 111 Cal.Rptr.2d 420,428(2d Dist.2001). 52 See,for example, 79 Cal.Op.Att'y Gen.21 (1996). 53 See Cal.Lab.Code§ H 03. 54 See Cal.Lab.Code§ 1105. Institute for Local Government www.ca-ilq.org 6