So says the California Fourth District Court of Appeals (Kathleen E. O’Leary, Presiding Justice, William F. Rylaarsdam, Associate Justice and Richard D. Fybel, Associate Justice) in their ruling published on Friday, 02/21/14. Though twice given an opportunity to correct an error in filing of ballot arguments, Brea’s City Clerk, under instruction from the City Attorney, secretly ordered the ballot signatories changed, which violates election law.
Coincidentally, one of the ballot issues, Measure T, sought to promote greater transparency in government.
Follow the money.
What could have been handled in a moment, with a simple phone call or email, at no cost to the city, turned into a debacle that has drug on for almost a year and a half!
Last September, when the City of Brea made a motion to dismiss the appeal, the Orange County Register quoted then Mayor Pro Tem Murdock who claimed, “This is a very sad waste of taxpayer money, the hypocrisy is sad.”
- This from the guy who called the suit frivolous, moot even, though the City Attorney said it was “triable” and the Appeals Court’s final decision proved the original complaint was anything but frivolous.
- This from the guy who failed to disclose his leadership of the Breans Against Measures T & U PAC, was found guilty and sanctioned/fined $2,000 by the FPPC.
- This from the guy who represents himself as an attorney yet tries to excuse his FPPC fine by stating, “The law is esoteric and broad.”
- This from the guy hanging his shingle all over town, desperately trying to get a law practice off the ground.
- This from the guy who thought it was okay to give himself a raise then fought to keep the issue off of the agenda for over six months.
- This from the guy who thinks it’s okay to spend several thousand taxpayer dollars to join his buddies on an all expenses paid vacation to South Korea and Japan.
- This from the guy who has no clue how the City really spends it’s money or if it does so wisely (remember his gross inaccuracies regarding Brea Fest finances?)
- This from the guy who’s first public act upon taking office was to suggest reducing the time allowed for citizens to address the council during Matters From The Audience from five minutes to three.
Brea Matters reported on this in detail – “Legal Fees Or Legal Fiasco?” In simple terms, here’s how the finances settle out. The City of Brea has spent almost $200,000 in legal fees with Jim Markman’s firm Richards, Watson & Gershon, authorized by City Manager Tim O’Donnell, to mitigate a complaint that could have originally been handled for nothing.
Zip. Nada. Not a penny.
Who really violates election law?
In all fairness, City Clerk Cheryl Balz works in an oppressive environment and doesn’t enjoy the autonomy afforded most of her peers. Council should have been in charge, choosing how to respond to the notice of error and deciding whether the threat of litigation outweighed the city’s embarrassment for the violation of election law. Certainly they wouldn’t have allowed it to occur twice!
Contact any member of council. Ask them if they were consulted on any of this, if they’ve seen and reviewed the many payments made to Richards, Watson & Gershon over the last year and a half.
Ask any of them if they’ve were given an opportunity to clarify costs, challenge expenses let alone approve them. I’ll bet the answer is, “No, I’m shocked!” They should have been in charge and they weren’t.
That’s not the half of it!
Actually, it is. The decision also allows the appellant to recover costs, so you can just about double that figure. This arrogant disregard for election law, what I believe was incontrovertibly a vindictive effort to publicly discredit a legitimate candidate for Council, will cost Brea taxpayers in the neighborhood of $400,000.
But, it’s not just about money.
Not only did the City Clerk violate election law by modifying the signatories, “the city clerk further violated the Elections Code by failing to make those changes publicly available.” (G047591 – (Super. Ct. No. 30-2012-00585496). If you care as much as we do, you can read the full decision here Appeals Court Opinion.
Twice warned, twice ignored, these actions have now established precedent statewide. The City could launch one more challenge in the courts. If you’ve read the Court of Appeals opinion you’ll realize there is no wiggle room left. Council must not allow O’Donnell and Markman to again commit such a hubristic act. If they do, a wholesale recall would be the only sensible action left Brea voters.
Every city clerk across the entire state will no longer be free to play loose and easy with election law. Come Monday morning, you can bet correspondence on this will be colossal.
Why such a big deal?
Because issues like this are tied to current elections and violations can easily elude detection as the transgression occurs outside of the public view and the election will have occurred before a meaningful review can be made.
It’s like a child stealing cookies when no one is looking, eating the evidence before they’re found out, betting that the missing cookies will likely not be discovered until well after dessert.
In this case, their best friend caught them in the act, suggested they put the cookies back before getting in big trouble and their choice was to arrogantly disregard the warning, believing they were too smart to get busted.
In this case it was fortuitous that the proponents of Measures T & U, because they were part of the statement and rebuttal process, were in a position to make early discovery.
The city claimed the clerk was merely correcting a typo to reflect the intent of Council, however the court determined that the city provided no evidence to prove the city clerk had any awareness of Council’s intent. In fact, if the Council, for the most part, had little or no knowledge of what was really unfolding… what intent could they possibly have had?
So, what the hell did we spend nearly $200,000 on? Excuse me, $400,000.
The court clearly states that even had they found the complaint to be moot, which they didn’t, the issues raised were of broad importance and capable of recurring. Even though the election was already behind us, the court denied the city’s appeal to dismiss.
Where do we go from here?
A good start would be to take a long hard look at the incumbents and candidates in the upcoming election. The impostors posing as knowledgeable fiscal conservatives should be outed and removed from consideration.
Next, we should drive home the point to Council to start making smarter choices that keep us out of harms way, out of the courtroom.
If this Madrona nonsense lands us in court, and it seems inevitable it will, I hope O’Donnell, Markman and the City Council all hold the appellants, Bev Perry and Glenn Parker (candidate in 2014?), as accountable for causing major legal expense to the city as they did Mr. Vargas… who has been fully exonerated as far as we’re concerned.
Vargas 1 – Brea 0