Below is the city's legislative program. This is what the city council says are policies it wants to pursue in Sacromento and D.C.
According to the city's chief contact with Capri and Clay, the city has no record that would allow the public to determine how and what parts of this program Capri and Clay have been working on. Is it possible to figure out?
Follow up email question to city staff (Mcseveny):
Can that information be established by a review of any set of public records?
"No, we do not receive this information from Carpi & Clay."
Last night the council voted 4-1(Barth) to give Capri and Clay another three year contract. Once again the city's staff report was very thin on all the things these lobbyists have been doing for their $84,000/year contract.
At the state level very recent parks funding lobbying has been given to Capri and Clay. This is all that is mentioned in the staff report. At the national level the city points to a bunch of federal funding, but makes no case that Capri and Clay have done work over the last three years on these projects and are responsible for the funding.
Nothing is mentioned in the staff report regarding the core areas that Capri and Clay have been charged with doing. Are we to assume they have made no progress? There is no evidence they have even done anything to promote the city's legislative program in the staff report.
The staff report is the place for that to be documented.
Sure, sure, maybe the council has been keeping an eye on their progress and just don't want the record in the agenda archives. The majority of the council could not point to recent progress that was being made by Capri and Clay.
The city started its streets maintenance schedule and streets condition study in February 2009, by hiring Nichols Engineering to study our streets. The report to come out is to be used to help the city optimize how much and where to do preventative street maintenance. The contract called for the report to be complete by August 2009.
Mayor Dalager has been saying publicly that the city is adequately funding essential services and infrastructure maintenance. We hope the report will confirm his assessment.
Staff have stated that the consultants finished their report and sent it to the city a half year ago, but the city will not release the document to the public.
Calaware has requested the report from the City of Encinitas. Here are some excerpts from the the requests and responses:
I received your request to view the Pavement Management Report. Right now it is in only draft form and is not available to the public. It will become available to the public when the report is finalized. The Pavement Management Report should be finalized sometime in late July. Feel free to call me periodically after July 20 to see if the report has been finalized. Once the report is finalized I can make a copy of it for you and have it ready for your pick up. Just let me know. We are going to Council on September 8 to present the final Pavement Management Report to Council. Thanks.
Associate Civil Engineer
City of Encinitas
Calaware's first response:
The California Public Records Act contains no exemption from disclosure for documents on the basis that they are not "finalized." The term does not appear anywhere in the CPRA, or any relevant case law or opinions of the Attorney General. The concept it represents was considered and rejected by the California Supreme Court nearly 90 years ago.
The CPRA does contain an exemption from disclosure for preliminary drafts, under certain limited circumstances, in Government Code Section 6254, subdivision (a). You may be referring to this provision, but it is inapplicable to the report I am requesting, since among other things the exemption refers to documents so primitive that are not "retained by the public agency in the ordinary course of business." This document, referred to in the budget as my request noted, has been retained in city files for long months and will not be disposed of.
In the only case law interpreting subdivision (c)— Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal.App.3d 704 (3d Dist. 1985)—the California Court of Appeal several times cited as leading authority a 1921 decision of the California Supreme Court, long predating the CPRA, Coldwell v. Board of Public Works, 187 Cal. 510. That case involved a citizen's request to review engineering plans and other documents in the office of the San Francisco public works department concerning the ongoing construction of Hetch Hetchy dam in the Sierra. The high court, in upholding the trial court's order that the citizen's request be complied with, expressly repudiated the notion that plans in progress—not yet completed by the city engineer or presented to the public works board—were therefore not subject to public disclosure.
That the Hetch Hetchy project is a public matter, in which the public has an interest, cannot be doubted. It follows that the public has an interest in the plans and designs which are adopted for the completion of the project. Not only is the work being done in the course of completing a public project, but it is being done by public officers and employees at public expense. That these plans are tentative and are liable to error or alteration cannot change their character, for, while they may not represent the final result of the work of the city engineer’s office, they are important details of that work. As such they are matters which affect the public, and in which the public has an interest, if that interest is only to see that the city engineer is taking steps toward the completion of the Hetch Hetchy project. It must be held that the implied finding of the trial court that they are of such character was justified.
Id. at 510 (emphasis added).
Please provide a copy of the requested document without further delay.
Read Calaware's response to City Attorney Glen Sabine here. Here are excerpts:
First, the court in Times Mirror Co. applied the common law deliberative process privilege as a basis for finding an overriding public interest in nondisclosure of materials that were not drafts. Had they been drafts, the court could not have ignored the limitations of the draft exemption in Government Code Section 6254, subd. ...
Supreme Court case antedating the California Public Records Act that holds that the public has a right to see the documentation of a public works project even though not (or not yet) “approved” or in final form...
The second problem with the applicability of Times Mirror Co. is that it antedates Proposition 59 of 2004, which
• elevated public access to the writings of public officials and agencies to a constitutional right as fundamental as, for example, speech or assembly;
• grandfathered in limits to such access found in then existing statutes and constitutional provisions—but not then existing judicial authority;
• required any such limitations to be given a narrow construction; and
• was adopted by more than 83 percent of the vote based on a ballot argument that asserted the need “to understand the deliberative process.” The City Attorney of San Diego, noting this event, has concluded that the privilege after Proposition 59 “is of dubious authority.” Opinion No. 2005-01.
There are strong appearances that the the city keeps its documents secret and labels them "draft" until right before the document gets put on an agenda. This is a trampling of the California Public Records Act, in the context of Prop 59. It is true that the city can withhold a draft public document, but only under narrow circumstances where the document meets certain conditions. The city applies the exemption to the entirety of ALL internal documents it decides to label draft.
Several other important documents were kept from (most of) the public for months and years. City insiders, who were not employees, have had access to some of these documents while city watchdogs were simultaneously refused access.
Please recall that the city and its consultants have admitted to having not released the traffic study (which was a shocker) for political reasons (an election was approaching). When it was finally released the public was only given two full staff days before the day the council was to accept the report and potentially condone its dramatic changes to city policy.
The city also refused to release the employee health care liability study, on the grounds that it was a draft and might need edits. There is no evidence that the report changed from the time the consultants first turned it in to the city and months later when it was quickly pushed through the city council. It is doubtful that any of the city staff have actuarial skills that could have resulted in material changes to the report. The report appears to have been complete many months before it was allowed to be seen by the public.
What if the document wasn't done and needed edits? Why not let the public help vet the document up front? If staff is directing changes to consultants' work, shouldn't they be able to defend those requested changes?
How to deal with such issues is exactly the sort of thing that the City Council (minus Barth) recently decided to avoid discussing in public. See here.
At this week's council meeting many public speakers came to warn the council against allowing Carltas development company to "defer" repayment of their tax advance.
After the public speakers, the council took a break and went into the backroom. They came out, discussed the issue, and all voted to not allow the payment to be deferred and enter into to negotiations with Carltas. Here is what Carltas had to say about the issue.
Here is what Bill Dean, the president of ERGA had to say about the issue.
Several weeks before, Mayor Dalager put this issue on the consent calendar for approval without public discussion. Former council member Cameron spoke to the issue and pointed out a large number of questions that were not addressed by the city and it was clear to many that her questions kept the City from approving the deferment. The consent calendar is for items that are considered housekeeping and no brainers.
For more on the misuse of the consent calendar.
The city held its first budget meeting for the coming fiscal year on April 28. There was a small audience mostly made up of city staff and those who do business with the city. There were only four public speakers. Two, Marshall Weinrab of the Chamber and Steve Aceti of Coastal Coalition, had their hands out asking for more money. The other two, Sheila Cameron and Tony Kranz, made succinct comments about the lack of details in the staff report.
What’s going on? Well, the city is undergoing what it calls a “fiscal realignment plan.” That’s a smoke-and-mirrors term for budget cutting or spending reductions. They say the plan will save $778,000 and will be instead of across-the-board cuts. But cuts are cuts, and reductions are reductions, no matter how they are framed.
Here is the not so good news:
1. The budget will be reduced 9%.
2. Expenditure projections are reduced considerably.
3. No Tier One capital projects are reduced, but none are increased.
4. Rubenstein traffic calming is on hold.
6. Revenue projection is down because recovery is slower than anticipated.
6. No projected increase in sales tax revenue.
7. For property tax a 3% decrease in net taxable value over the last year (1st time in Prop.13 history).
Councilman Stocks was not present at this first budget meeting. He was in Mexico City with SANDAG on a mission dealing with border problems. ¡Olé! Both Councilmen Dan Dalager and James Bond spent a lot of time praising the staff for their outstanding work and justifying the lack of detail in the budget by saying they had spent hours conferring with City Manager Phil Cotton. The public doesn’t have this opportunity, so the public needs to be given details for transparency. For example, there is a technical paragraph in the staff report about changes in staff job classifications, but no explanation of what it means and its effect on the budget.
The elephant in the room that was scarcely mentioned is the financing of the Hall property park. The staff report simply says “No changes.” It is necessary to look in last year’s six-year plan to see that the city is not funding construction through fiscal year 2014-2015. Stocks and Dalager have been painting a rosy picture of the city’s economic status for several years now. They talk about a balanced budget and our high reserve fund. The contingency Reserve Fund is 20% of the operating budget and the Budget Stabilization Fund is 5% of the estimated revenues. This is a good place to be. but they fail to mention that this was accomplished by borrowing $45 million to buy the Hall property and finish the Library. And they never mention that they borrowed the money with Lease Revenue Bonds, so the cost is not counted as “debt” payment, but as a yearly “lease” payment. The money still has to come from somewhere in the budget, as the projects have no revenue stream. This is accounting doubletalk.
Councilwoman Houlihan talked about taking a conservative view, and Councilwoman Barth wanted more detail. This is a fuzzy picture at best. It all needs to be explained to the public better. After all, we pay the bills.
The public often believes our City Attorney's job is to make sure the city follows the law. That is not how our City Attorney operates. Our City Attorney is not elected. He was hired by the City Council. His client is the City Council. He is "just the piano player" playing the music the City Council majority gives him.
When the city staff violate the municipal code or violate open government laws the City Attorney can not be expected to react.
Here is an email sent to the City Council today:
Mr. Sabine [City Attorney],
This email is acknowledgment and documentation of two phone messages I received from you regarding the Formal Complaint I filed on December 16, 2009 against Park and Recreation Director Chris Hazeltine.
In your message on January 11, 2010 at 6:02pm you made the following statements:
"Let me tell you just what my thinking is to summarize"
"As a City Attorney I take direction from the City Council"
"So, if the Council wants, you know, me, to investigate anybody then they would direct me to do so."
"So I think the first step for you would be going to the Council in whatever form you desire"
"I looked at it pretty closely and thought about it and think that's whats appropriate"
In your message on January 13, 2010 at 4:56pm you made the following statements:
"I will reiterate that the City Attorney takes direction from the Council"
"And it's the Council that you have to convince um to direct the City Attorney to take any action um regarding any kind of investigation
"I've look at it carefully and thought about it and that's a, that's the case"
As I mentioned before I have strong supporting evidence that Mr. Hazeltine has violated City polices in a number of areas.
It can only be concluded by your statements and past emails that the City of Encinitas is not obligated to track complaints and has no policy to process and investigate complaints against City employees.
I'm sorry but there seems to be something fundamentally wrong the City ignoring complaints against City employees. It would appear that this lack of a Complaint Tracking System would only open the City of Encinitas to liability, the very thing your position is responsible for, protecting the City.
Thank you for your attention
Meiche's complaint can be found here.
Sabine's title would be more appropriate if it were Council's Attorney.