Legal Fees Or Legal Fiasco?

Today’s Orange County Register article, Legal Fees Climb As City Fights Election Lawsuit closed with this comment, “This is a very sad waste of taxpayer money,” Murdock said. “The hypocrisy is sad.”

Murdock MPT 2This from the guy who failed to disclose his leadership of the Breans Against Measures T & U PAC… and who was sanctioned/fined $2,000 by the FPPC for it. This from the guy who thinks it’s okay to spend taxpayer money to join his buddies on an all expenses paid vacation. This from the guy who has no clue how the City really spends it’s money or if it does so wisely.

While the article about the lawsuit and subsequent legal fees is essentially accurate on most counts, I believed there was a need for some serious filling in of the gaps. This morning I had a lengthy meeting about this with Chris Haire, the OCR staff writer, and, for the most part, he understood where I was coming from. When the final appellate decision is rendered, watch for Chris to cover it… early next year I’ll wager.

Was the legal expense absolutely necessary?

In a word, no. The city was informed by letter of their alleged violation of election law, the forbidden alteration of documents submitted to the Registrar of Voters, with more than sufficient time to rectify their error, at no cost.

tim_2aI guess the City Manager and City Attorney felt there was no reason to respond. I don’t know how you would describe this conduct, but I call it arrogant and inappropriate.

This wasn’t a simple typo folks. It was a purposeful alteration of the true attribution of statements opposing Measures T and U. Leaving off the name of none other than the guy who got fined for hiding his connection to the PAC opposing Measures T and U. Coincidence?

The smoke and mirrors continues.

Portraying the case as moot and again pointing the finger at Steve Vargas as the cause of this expensive legal battle, City Attorney James Markman craftily redirects attention away from himself and the huge fees his firm has charged the city to handle the case.

Personally, I don’t believe either the casual dismissal of the suit’s significance or the continued character assassination of Mr. Vargas to be right or true.

Let’s take a closer look at the fees.

jmarkman_bAs reported by Markman and City Finance Director Bill Gallardo, the fees to date are approximately $154,000.

What? Are you flippin’ kidding me?

Markman’s rate, as I recall, hovers around $500/hour… but there are two other attorneys from his office involved, and I’m assuming paraprofessional or clerical staff as well.

So, let’s adjust the rate down to a more believable average of $300/hour. That’s 513+ hours to reach an invoice for $154,000.

In 40 hour weeks, that’s a total of 12.8 weeks… over three months of doing nothing but working on this single case. Protected by work product or attorney/client privilege, we’ll likely never know how Markman’s firm came up with that figure. But you can’t convince me that it’s fair or reasonable.

Instead of handing Markman’s firm a raise, Council should have asked the question, “How in the h_ll can you explain this?”

Why is this not a moot point?

politician_liar_150Like raising kids, parents need to determine if an unacceptable act is due to childish misbehavior or willful disobedience. Given that the alleged violation occurred on two documents, on two occasions and is eerily similar to the lack of transparency regarding leadership of the Breans Against Measures T & U PAC, I’m thinking this looks a lot like willful disobedience.

Never mind that the election is long past. Who knows how this might have effected voter’s or not? Having found that the City did alter documents when it had no right to do so, a line needs to be drawn in the sand that says, “Don’t do this again or you will face more serious consequences.”

Where would you rather spend the $154,000?

An email I received when the first hint of the story broke posed, “With $2.50 senior meals now the bitcoin of the realm in Brea, how many senior meals could be provided with the wasted legal defense fees related to the Measure T & U lawsuits?”

Good question Mr. Remains Anonymous… damned good question.

 

The Sky Isn’t Falling… Yet.

The doomsayers, pessimists and chickens’ little are all in a panic over nothing, I think. With the passage of Measure T, I felt it prudent to look further into election law to better understand what to expect now.  Let’s start with the law.

California Elections Code 9217: If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city. The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date. No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.

Typical legal mumbo jumbo.

I’ll try to tackle it one piece at a time.

“If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city.” That’s it, period, Measure T is law in Brea. No negotiations, no editing, no expensive legal challenges… it’s law.

“The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date.” The City of Brea has, or shortly will be, in receipt of the final vote count from the Orange County Registrar of Voters. Though the agenda for the December 4th Council meeting has yet to be published, it is reasonable to anticipate that the ROV’s declaration will be accepted by Council that evening.

If anything deserves or qualifies to be placed on the consent calendar, the acceptance of the ROV’s final declaration does. I mean, what would require Council discussion or debate at this point?

This is a routine and necessary step preceding the swearing in of reelected/new council members and the annual reorganization of the Council slated for their December 18th meeting. This means that Measure T becomes law automatically on December 14th.

“No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.” The measure, now law, cannot be repealed or amended without the people voting again on the matter. There is no provision contradicting this in the original ordinance.

But wait! There’s More!

Measure T included a severability clause. In short this means, if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue in force as law.

In simple terms, should the City of Brea, at a later date, decide to take issue with some part of the law, they are free to do so but must prove their case in a court of law. If they prevail, the balance of the law remains intact as originally written.

A couple of examples.

Let’s say, somewhere down the road, the City needs to hire a new City Manager.

Due to excessive salaries being paid to City Managers across the state, the City might claim to find it difficult to locate acceptable candidates willing to work for a salary conforming to the limitations imposed by the law. The City, apparently, can use this situation to challenge the salary cap, though I fail to see where their problem has anything to do with the Constitution.

In today’s tough economic climate, with so many highly qualified people either underemployed or out of work, I would imagine finding someone better qualified would be a slam dunk. What would the qualifications be?

  • Having the people’s best interests at heart.
  • Having a willingness to follow the guidance of elected officials rather than an obsessive need to control everything.
  • Willing to work for a fair and reasonable salary, as defined by law.

Another issue that may arise, as has been suggested by the City Attorney, might be the requirement that the City Manager live in Brea, citing the “four miles from city hall” as being unconstitutional.

More a tactic Mr. Markman and Mr. O’Donnell had hoped would help dissuade voters from passing the measure, there is really little or no problem finding cases across this country where elected officials, educators and public safety personnel have been required to live within the community in which they serve.

In either case, until a specific issue is raised due to immediate circumstances, there is no provision that would allow the City to arbitrarily challenge one or more components of the law. It could be years before such a circumstance might present itself.

Immediate impact.

Neither council member Simonoff or council member elect Marick, upon being sworn in on December 18th, will receive or continue to receive flex benefits currently paid to City Council. There is a remote possibility that any stipend adjustment, to be consistent with the limitations prescribed by the State, would as likely create a slight increase to the stipend (which hasn’t seen a raise for maybe a dozen years) than a decrease.

I suppose they could decide to challenge this… trying to find a loophole or something, but the people have spoken, why would they be so foolish?

Both Simonoff and Marick, though not supporters of the initiatives, have expressly promised to:

  • Listen closely to their constituent’s opinions.
  • Conduct all City business openly and in full public view.
  • Carry out the City’s business in a responsible, fiscally conservative manner.

Any attempt to line their pockets by circumventing the constraints specified by Measure T will show that their campaign promises were merely political rhetoric designed to get them elected.

A new election cycle is upon us.

By end of the day tomorrow all those truly intending to run for office will have filed their papers with the City Clerk, paid whatever fees and deposits are required and the race is off and running.

Soon, as well, the Registrar of Voters will give some permanent designation to the initiatives on the ballot – currently known as : The Brea Open Governance Act and The Brea Accountability Act.

If 2010 was any example of the “rough and tumble politics” we can expect this year, it’s going to get heated and probably pretty ugly. A number of special interests, i.e. little Brea cliques with selfish personal agendas and an unquenchable need to be a big fish in a small pond, are bound to wade in to support their candidate or issue du jour.

Everyone is tall enough for this ride.

I’m going to do my best to dig into the issues, fact check the claims and allegations, ferret out who’s really behind what and why.

Basically, I’m going to give you the other side of every story. It’s up to you to take from it what you wish and to cast a ballot in support of what you believe to be the truth and the best option for a Brea that fits your vision, that meets your expectations.

You are registered to vote, aren’t you?