Ding Dong! Summer Reruns and Better Call Saul?

556920_497264096977712_385366256_n Ding Dong!

How does that song go? Well, no time to gloat, but in case you’ve missed the news, Simi Valley finally took action with regard to long standing issues involving City Attorney Baxter.  The City issued a press release on Monday announcing that Baxter was voluntarily resigning, and that the City would be paying Baxter a severance of close to $100G’s.

So, how is it that one can “resign” from the City and receive walking change close to One Hundred Big Ones?  Well, you can’t.  It doesn’t happen that way.

What does happen is that sometimes a contracted employee, like the City Manager and the City Attorney, have contracts that define the relationship between the employee and the employer.  Sometimes, those contracts have clauses which pertain to termination.  Such as the contract between Baxter and the City.  Take paragraph 1.a., which reads in part, “City may terminate this Agreement without notice or cause at any time . . ., any termination pursuant to this subjection (a) shall require the payment by the CITY to BAXTER of 50% of BAXTER’s annual salary and benefits.”

So, if Baxter was making $177,00 per year, half that is $88,500. Now keep in mind, there is no provision for a payout if Baxter merely resigns.  She must be terminated to get her payday.

And, when you combine the reported $7,600 settlement Baxter appears to have negotiated as a part of her “just go away” deal, it looks like she gets to walk with a check for over $96,000 combined.  And yet, it gets better, because the above figures to not calculate 50% of her annual “benefits.”

My “in box” has been overflowing with outrage that Baxter gets to resign and get paid to go away, but to this casual observer, it looks like characterizing her termination as a resignation was just part of the deal.

Either than, or the City just gifted public funds to sweeten a retirement package.  But I don’t think that’s what happened.

______________

Summer is the time for reruns, and this summer seems to be no different than any other.

For some that have followed my infrequent columns, you would know that I have taken up the task to represent K & J Auto, corner of Tapo and Cochran here in Simi Valley, in its fight against local political “stuff” stirrers who wanted to create trouble where there was no trouble to find. To encapsulate, last year about this time there was a local City Council election.  Opponents of one of the candidates raised an ethical issue regarding a renovation grant issued by the City to K & J Auto.  The grant was in the amount of $70,000.  The money was not issued by the City until K & J Auto had provided documentation to the City’s satisfaction.  Nothing to see here, right?  Except that the opponent of one of the candidates had mistakenly identified the owner of K & J Auto as the campaign manager for said candidate, which was not true, and then the fun began as the opponents threw mud and “stuff” at the K & J people.  Things got so cantankerous that a former City Council member and a current City Council member held a press conference demanding that the City investigate the K & J Auto grant, implying all sorts of nefarious misdeeds.

Then on December 4, 2012, a committee of concerned citizens, including Barbra Williamson, Ted Mackel, Tom Mackel and Louis Pandolfi met with City officials, complete with pitch forks and torches, demanding that the City investigate this grant!

And, it turns out, the City did do an investigation into the K & J Auto grant and it found that there was nothing to see here folks.

But wait, us here folks were never told that the City found no wrong doing! Wha, wha, what!!!

That’s right.  On March 5, 2013, Connie Henes-Baird, Interim Director, Administrative Services, sent a memo to Brian Gabler, then Acting City Manager, regarding the “Review of K & J Auto Payments.”  This memo came after the February 28, 2013 meeting K & J Auto reps met with the City wherein all requested financial records were reviewed, discussed and explained.  The City concluded that of $108,869.05 work of records the City requested to review, all but cash payments amounting to $4,625 were accounted for, and of the $4,625 in cash payments, K & J was unable to secure contact with one particular vendor to provide a declaration re payment.

The bottom line was, upon review by the City K & J would have still been eligible for the $70,000 grant that he did received and then returned due to the harassment of the local “stuff” stirrers.

So, nothing to see, right? You would think that the local “stuff” heads would be satisfied, right?

Nope.  In response, the City did NOT publicize its finds, and “someone” made a call to the District Attorney’s “Public Integrity Unit” to re investigate the issue. This, too seems to be going nowhere. Then again, how many times does one need to be exonerated before everyone gets that there is nothing to see here?

And yet, once again, the “stuff” heads decide to stir up the same “stuff,” as exemplified by the September 5, 2013 Public Record Act request submitted by Tom Mackel to the City, requesting (get this),

1) “All direct written email, fax and letter correspondence between the City Clerk’s department and Mitchell Green from October 1, 2012 to present;

2) Copy of all claim for damage to person or property filed by or on behalf of Kelly Kolarek and/or Kelly Kolarek dba K&J Auto Exchange from October 1, 2012 to present;

3) All summons and complaint for damages documents and any other documents naming Kelly Kolarek and/or Kelly Kolarek dba K&J Auto Exchange as a plaintiff;

4) All meeting agendas for closed session or executive meetings related to Kelly Kolarek and/or Kelly Kolarek dba K&J Auto Exchange from October 1, 2012 to present – All public reports related to actions taken in closed session or executive meetings related to Kelly Kolarek and/or Kelly Kolarek dba K&J Auto Exchange from October 1, 2012 to present – Copies of any contracts, settlement agreements or other documents that were finally approved or adopted in closed session related to Kelly Kolarek and/or Kelly Kolarek dba K&J Auto Exchange from October 1, 2012 to present;

5) All K&J – Memo and Documents related to an email from Mary Berns to Brian Gabler dated 3/19/2013 9:44 a.m.; and,

6) A copy of all documents, reports, notes and communications related to an independent audit performed on the grant administration with a report prepared on the results from November 1, 2012 to present.

Now, that’s a lot of requesting from the “stuff” heads, and it begs the question, why now?

How many times do the “stuff” heads need to be reminded that there is nothing to see here?

Now, just to make it sporting, perhaps Mr. Kolarek needs to submit an endless tide of Public Record Act requests addressed to the City regarding the business Mr. Mackel runs?  Maybe that would be interesting, huh?

______________

What’s new is that on Tuesday, September 10, 2013, I had a chance to speak to the Simi Valley Unified School District about the contract renewal the district was entertaining to engage in with the its counsel, Robert Thurbon of Gold River, California. That’s up somewhere around Sacramento.  (Nothing like making your attorney accessible, huh?)  Mr. Thurbon had his contract up for renewal with a 20% pay raise buried in the details.  Had I not spoken about the contract, it would have been approved on a “consent” calender, where matters are all approved without discussion.

I, however, wanted to talk not so much about the pay raise in times of fiscal red ink, but rather the surprising admonishments received by this attorney from a sitting federal judge in a matter called Lynn v. Gateway Unified School District, United States District Court, Eastern District of California, Case No. 2:10-CV-00981-JAM-CMK.

In the Lynn case, United States District Judge John A. Mendez outline numerous and severe ethical violations by Mr. Thurbon, such as “possibly violated California Penal Code Section 496, receiving stolen property;” “possibly violated California Penal Code Section 502, a felony, for use of information from a computer base without permission;” ““Thurbon’s conduct arguably suppressed evidence of a crime in violation of his ethical duties;” and, “violated his ethical duty of confidentiality owned to his client [name omitted] in order to try and assist his other client, [name omitted].”  Thurbon was ordered disqualified as counsel in the Lynn matter.

Thurbon was also, apparently, disqualified as counsel from another case, Jody Thulin v. Gateway Unified School District, also for ethical breaches, such disqualification upheld on appeal in an unpublished decision on August 14, 2012 by the Court of Appeal of the State of California, Third Appellate District.

When I brought up the ethical challenges surrounding the district’s attorney, Mr. Collins, the Board President, agreed to take the issue off the consent calendar and table it for further discussion re renewal or possible rejection of the renewal of the contract.

But will the people ever get to hear a discussion on why the Board continues to use Mr. Thurbon?

Perhaps not.  It seems that on Thursday September 12, 2013, Superintendent Scroggin sent out an e-mail that reads in part,

“Regarding Mr. Thurbon’s contract…

Mr. Thurbon has agreed to leave his rates as they were for last year and for about five years previous to that.

There will be no change in the contract other than the year(s) it covers.”

Does that mean no discussion?  Just sweep ethical and/or potential criminal issues of the district’s counsel as noted by a sitting federal judge under the rug?

Better Call Saul?

Have a great weekend Simi Valley!

Mitch

 

Transparency is just a word?

556920_497264096977712_385366256_n Admittedly, it has been awhile since I’ve written, but that does seem to be my pattern. Come out of my fox hole, lob a few rounds down range and then back into the hidey-hole.

The fact of the matter is, I’ve had my own share of issues to deal with lately that has made the fun and games in the quest for government transparency pale by comparison. A death in the family, a death in close to family, business challenges, that sort of thing. In other words, “Life is what happens when you are busy making other plans.” John Lennon.

But things are now a little more in order, and its about time. Summer is half over, life is good and its time to get on with our discussion.

First up to task are the continuing issues with the City Attorney’s Office. Last week just for grins I submitted a public record act request to the City of Simi Valley concerning the administrative investigations into an alleged payment of a claim, in excess of $20,000, after the government claim filing deadline had passed. I also submitted a public record act request to the City pertaining to the administrative investigation into the five (5!) personnel complaints leveled against the City Attorney by City co-workers.

Now, I expect that the City will balk at the production of said administrative investigations, however under the Public Record Act, there is no exception to disclosure of “administrative investigations.” And, thanks to friends on the internet, I’ve become aware of recent case law that stands for the proposition that the public has a right to know the outcome of administrative personnel investigations where the allegations are of a serious, non-trivial nature. That would be Marken v. Santa Monica-Malibu Unified School District, 202 Cal.App.4th 1250 (2012).

In this case, Marken was a school teacher who had received a written reprimand for violating the District’s policy prohibiting sexual harassment of the students. Marken was returned to work following a month long administrative leave during the investigation and receipt of the reprimand. Two years later a parent made a public record request for a copy of the administrative investigate report and letter of reprimand. Marken filed a complaint for injunctive relief to prohibit the District from releasing the records. The Court, in turn, dismised the complaint for injunction and, on appeal, the Court observed,

“Openness in government is essential to the functioning of a democracy. Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”

Further, “The Court stated that a complaint of misconduct which is upheld by the agency or results in discipline must be disclosed. If the complaint is not sustained, it is still subject to disclosure if it is of substantial nature and there is reasonable cause to believe the complaint is well founded.” Opinion, Liebert, Cassidy, Whitmore.

So, if a complaint resulting in an administrative investigation is conducted, and misconduct is found or discipline is imposed, the governmental agency must disclose the documents. And, even if the complaint is not sustained, if the matter is of a substantial nature and there is reasonable caused to believe the complaint is well founded, regardless of result, the administrative investigation is still subject to disclosure.

Seems fair enough, right?

So we shall see what the City has to say about transparency with regard to these two investigations.

On another matter, I’ve noticed that the goings on at the Simi Valley Unified School District Board of Education is producing entertaining results.

I won’t bother to go into details, as the Acorn has covered this matter in depth today, August 9, 2013.
http://www.simivalleyacorn.com/news/2013-08-09/Editorials/Coming_clean_is_less_costly.html

While some may say that the current dispute regarding a resignation letter which may or may not have been submitted is but a tempest in a teapot, the true issues are, again, transparency in government. Do the people have a right to expect transparency in a government agency that spends over $140 million dollars a year in your tax money? I would think so. So why all the drama and angst? Why is the Board trying to rail one of their own merely because he calls for transparency? Something stinks, me thinks.

And further, what is with the tin foil hat comment from Trustee Sandland where she accuses Trustee Dan White of expressing a “malicious and evil opinion” when he criticizes the School Board’s counsel, Robert Thurbon, Jr. of the law firm Thurbon & McHaney? This would be the same attorney who was hammered by a federal judge in a Northern California federal case for unethical behavior to the point of being disqualified. See Lynn v. Gateway Unified School District, page 12 specifically.

See here: http://media.redding.com/media/static/2nd_Amended_Order_Kendall_Lynn.pdf

“Malicious and evil opinion,” when one discusses observations of misconduct by a federal judge as to the District’s own counsel? What up with that? Such a fine example of an ad hominem attack by a School Board Trustee for our children to follow. Don’t like the facts? Just call names!

Or perhaps the District is hiding something? As in, do we need to dust off our magnifying glasses, Nancy Drew and Hardy Boys?

Scooby Doo! Fire up the Mystery Machine!

Blatant Plagiarism: Channeling The Axis Of The High I.Q.

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Posted on May 3, 2013 by Mitch Green

[Mitch Note: Most of the time I sit down to write, I have no idea what is about to spurt out of my fingertips. I’m a lawyer in my day job and writing technical legal documents happens to be part of my daily life. In that regard, I am a professional writer, albeit of a very strict formula and format. For my columns, I get to just free stream my mind, and I challenge my fingertips to keep stride with my thoughts as I explore mental byways, cul-de-sacs and the occasional dead end.

And then, there is the work that just pops in, which I take no credit for other than to concede blatant plagiarism. And with that legal disclosure out of the way, may I present to you The Axis Of The High I.Q., a collective]

We are the Axis of the High I. Q. [Mitch Note: I think of “them” as frustrated government officials who have no first amendment rights to discuss their observations. Or maybe it was something I ate]

We have had several discussions with folks here in Simi Valley and the consensus is our local press coverage is somewhat lacking.

Local television coverage and the larger newspapers are based out of Los Angeles so it is rare to see a news item about Simi Valley unless it involves catching a murder suspect or a high-speed car chase that makes its way onto the 118. For all other stories of interest and coverage of local events we must rely on our own newspapers, the Ventura County Star and the Simi Valley Acorn. Unfortunately, the reporting is far from hard hitting.

For example, when reporting about this year’s annual State of the City address, the thrust of both papers’ articles was the University of Vermont’s research paper that found Simi Valley is the eighth-happiest city in the country… according to Twitter. Yep, this ‘fun little tidbit,” a survey from Vermont based on tweets of 140 characters or less, with gems like “Happy! Happy! Simi Valley! #YOLO” was the headline feature and a large part of the summation of the state of our city over the past year. We smell Pulitzer!

But the biggest issue with our local papers seems to be the inability to ask a good follow up question. Issues that seem confusing or contradictory within the same article could be easily clarified by asking some additional questions based on statements already received.

For example, the March 16, 2012 article in the Simi Valley Acorn “An accidental awakening” which was a nice neighbors piece on the life and career of then newly appointed Simi Valley Interim City Attorney Marge Baxter had an interesting accounting of Baxter’s reaction to being assigned to her new position.

“It came as a shock to her. “I got a call from the city manager’s office last week asking me to come in and I was told, much to my surprise, that the City Council wanted to know if I would be interested in fulfilling the interim position.””

The article also states that the last time an interim city attorney was needed, Baxter was chosen to fill in. So how does being selected again this time come as a shock or a surprise? There certainly seems to be an obvious follow up question here because without an explanation, it might appear that Baxter is simply grandstanding which we are sure was not the intended message.

But we can’t take just the Acorn to task over this because the VC Star has done the same thing. In their September 29, 2010 article “Lawyer Russell Takasugi accused in probate
documents of taking $500,000 from estate” that dealt with the accusations against Takasugi when he was working with the Law Offices of Huber &Takasugi, this was the reaction of then Simi Valley Mayoral Candidate Bob Huber to the news.

“Huber said Monday that he was “shocked” at the allegations and needed time to look
into them.”

Sure seems like folks in Simi Valley are easily shocked because the article also states;

“Huber hired Takasugi as his law clerk 27 years ago. Takasugi began having ethical
problems with the state bar in 1996, records show. A total of five complaints have been
filed against him, several for failure to act competently. The most recent complaint
resulted in Takasugi being placed on a two-year probation that began in June 2009,
according to the bar. Huber said he was aware of the disciplinary problems but hoped Takasugi had learned his lesson.”

Once again, how does someone with that kind of past history with another person and recent knowledge of their wrong doings wind up being “shocked” at this news? There certainly seems to be an obvious follow up question here because without an explanation, it might appear that Huber is simply grandstanding which we are sure was not the intended message.

Just recently, we were reminded of perhaps the most glaring instance of the omission of any follow up questions and the need for them. At the most recent City Council Meeting during a discussion of the Parkside Villas Condominium Memorandum of Understanding, Mayor Huber accused Councilman Becerra of gotcha politics with the MOU issue just like Becerra’s other instance of gotcha politics months prior.

The previous instance was written about in an October 26, 2012 VC Star article “Simi mayor says councilman’s concerns about chamber calls are ‘sleazy’ politics.” Becerra raised concerns about telephone calls Huber made to the Chamber of Commerce that, as he put it, amounted to a government official using his official position “to try to influence a political decision by an organization that has a legally binding contract with the city. Just because the executive director dared to endorse somebody other than who the mayor wanted them to endorse.” Huber dismissed Becerra’s remarks as a “sleazy, totally false” political ploy intended to embarrass him two weeks before the Nov. 6 election.

Becerra was referring to calls made by Huber to the Chamber of Commerce after its CEO, Leigh Nixon, backed then council candidate Tim Shannon as a private citizen. Nixon said that a “frenzied” Huber called her to discuss the city’s $70,000 annual contract with the chamber to promote tourism and told her that “there were council members who were concerned” about the endorsement “and they had requested a hold on our city funds and will be investigating looking at revoking our contract.”

The Chamber’s Director of Operations, Michele Bennett also received a call from Mayor Huber and emailed Nixon that Huber told her “this was a serious situation because four council members had called the city manager and that our city contract check was on hold. … My head was spinning.”

The article also stated that Councilman Mike Judge “had requested that the check for the chamber be held up until the next City Council meeting so that we could sort out what all of this is about” and that Judge called to have the check held after some constituents expressed concerns to him after reading in the Simi Valley Acorn that Nixon had endorsed Shannon.

What was Huber’s reaction to the whole situation? Huber said that Nixon and Bennett misunderstood parts of his conversations with them. (A mistake if you will.) The mayor said he didn’t mention four council members to Nixon and Bennett. Instead, he said he told them he had heard four council candidates were considering boycotting the chamber’s Oct. 2 candidate forum because of Nixon’s support of Shannon. “It was a courtesy call to try to save the forum,” Huber said. All but one candidate appeared at the forum. Huber said he had “absolutely no” concerns that Nixon was supporting Shannon.

The check was held for 4 days and, according to Judge, was released when he called City Manager Laura Behjan on Oct. 1 and told her he was satisfied that there was nothing improper about it. (One day before the Chamber’s candidate forum.)

In general, people do not want to see problems without a recommended solution. So allow us to offer some of the obvious follow up questions that should have been asked here.

For Nixon and Bennett:

Was there any possibility that you could have mistaken what the Mayor was trying to tell you?

Was there anything about the Mayor’s tone that would lead you to believe that he was giving you a “courtesy call?”

Knowing that Judge put the Chamber’s check on hold, is there any doubt in your mind that the Mayor was threatening your funding?

For Mayor Huber:

Why do you think both Nixon and Bennett misunderstood what you were trying to tell them?

Why do you think that both Nixon and Bennett heard essentially the same thing in two different instances?

Did you speak to Judge about the situation with the Chamber?

Did you tell Judge to put the hold on the check?

Were you aware that Judge put the hold on the check?

Who were the four candidates and who told you they had concerns?

If you had been the one in Becerra’s shoes that heard that the Nixon and Bennett had felt another candidate was threatening the Chamber, would you remain silent to avoid gotcha politics?

Considering that you were heavily favored and the likelihood of loosing the election was slim to none, is it really possible that gotcha politics could come into play?

For Council Member Judge:

Are you in the habit of requesting holds on checks for entities that have city contracts because you receive complaints from the public?

Did you speak to Huber about the situation with the Chamber?

Did Huber tell you to hold the check?

Were you aware that Huber had called the Chamber?

But the easiest thing of all would have been to place a few quick calls to the other candidates to ask them two simple questions: Were you thinking of boycotting the Candidates Forum based on Leigh Nixon’s endorsement and, if so, did you relay that information to anyone? Based on those answers, you would have a pretty good idea of how this he said/she said really played out.  [Mitch note:  We now know from Candidate Randy Nemecek that former Council member Barbara Williamson called many of the candidates and encouraged them to boycott the Chamber Forum]

If a councilperson is using gotcha politics to wrongfully discredit another politician, we need to know that. If any of our elected officials are leveraging their position of power to try to influence anything, especially when it is an election and it is against an organization that brings money into our community by promoting tourism and business, we need to know that too. As the only resource of news for our city, we would hope that our local press would dig a little deeper to provide us with a more complete picture of events, especially when the issues are as import as these.

We are the Axis Of The High I.Q.

[Mitch Note: And with that, I’ve got to get ready for work. Have a great day Simi Valley!]

Dear Mitch, May 1, 2013

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Originally posted on May 1, 2013 by Mitch Green

“Today’s gossip is tomorrow’s headline.” Walter Winchell

[Once again I clear out my in box of tweets from the little birdies in the know and from regular readers asking hard questions you want answered]

Dear Mitch,

Please help me to understand Mayor Huber’s explanation of the “misunderstanding,” concerning the “controversy” last fall following Simi Valley Chamber President and CEO Leigh Nixon’s personal endorsement of candidate Tim Shannon.

You do remember that incident, do you not, Mr. Green? Where Mayor Huber threatened to jeopardize the Chamber of Commerce funding following a personal endorsement?

For background, check out this article from the Ventura County Star, dated September 13, 2012, wherein the City of Simi Valley awarded a $70,000 contract to the Simi Valley Chamber of Commerce to provide visitor information services, objected to only by Simi Valley gadfly, Doug Crosse.

http://www.vcstar.com/news/2012/sep/13/council-awards-chamber-visitors-contract/

And then, following the personal endorsement by Ms. Nixon of Council Candidate Tim Shannon, Mayor Huber reportedly made a call to Ms. Nixon and and Director of Operations Michele Bennett on Sept. 28, 2012, threatening to withhold the $70,000 funding. The Ventura County Star reported on October 26, 2012 that per Ms. Bennett, “Huber told her “this was a serious situation because four council members had called the city manager and that our city contract check was on hold. … My head was spinning.””

And in the same article, Ms. Nixon is quoted as saying, “Huber told her that “there were council members who were concerned” about the endorsement “and they had requested a hold on our city funds and will be investigating looking at revoking our contract.”

http://www.vcstar.com/news/2012/oct/26/huber-says-becerras-concerns-about-chamber-calls/#ixzz2S6KtzYqD-

According to the same article, Mayor Huber said he didn’t mention “four council members” to Nixon and Bennett. Instead, he said he told them he had heard “four council candidates” were considering boycotting the chamber’s Oct. 2 candidate forum because of Nixon’s support of Shannon. “It was a courtesy call to try to save the forum,” Huber said. All but one candidate appeared at the forum. Huber said he had “absolutely no” concerns that Nixon was supporting Shannon.

Now to employ some deductive reasoning. Here is a list of the candidates:

City Council Candidates
Tim Shannon
Barbra Williamson
Steve Sojka
Keith Mashburn
Randy Nemecek
Mark Littleton
Eric Halub
Doug Crosse

Mayoral Candidates
Bob Huber
Ken Sandberg

Doug Crosse stated in a October 2, 2012 VC Star article about the forum “Simi Valley business climate dominates chamber’s candidate forum” and that he canceled his reservation for the forum after Mike McCaffrey, the chamber’s current board chairman, sent an email to members of the Simi Sunrise Rotary Club soliciting campaign donations for Shannon. Shannon is a past president of the Rotary Club.

Mr. Crosse didn’t say “Nixon,” and Mr. Crosse was no longer a candidate by October 2, but let’s add his name to the “four candidates” that were thinking of boycotting, unless, of course, you want to talk to Crosse, but who would want to do that? That leaves us with 3 candidates.

Huber said he had “absolutely no” concerns about Nixon endorsing Shannon so he can’t claim he was thinking of boycotting. Huber’s off the list then.

If Shannon was thinking of boycotting, we would have a problem, so let’s say no about him. That leaves us with this list.

Barbra Williamson
Steve Sojka
Keith Mashburn
Randy Nemecek
Mark Littleton
Eric Halub
Ken Sandberg

So here is my challenge to you: ask the remaining candidates two simple questions:

1 – Were you thinking of boycotting the Candidates Forum based on Nixon’s endorsement of Shannon?

2 – If so, did you tell that to anyone?

Based on those answers, if you can’t find another 3 candidates that were going to boycott the forum, it will be hard for Mayor Huber’s story to stand up to scrutiny.

Thank you for your service,

Another concerned Simi Citizen.

Dear Concerned Simi Citizen,

While I am not one to pick unnecessary fights, and I do not have a reason to pick a fight with Mayor Huber, I do respect my readers to send in their comments for perusal.

So I will take you up on your challenge.

Candidates in the last Simi Valley Election Cycle, were you planning on boycotting the Simi Valley Chamber of Commerce candidate forum because of Ms. Nixon’s personal endorsement of Candidate Shannon? And if so, why?

See Concerned Simi Citizen, you ask, I throw it out there. Lets see where this takes us, if anywhere.

Mitch

***

Dear Mitch,

I find it interesting that these names continually come up as the first people seeing your posts in Simi Valley Politics.

Jared Held (Simi Valley Moorpark Tea Party President)
Maryl Mashburn Lorencz (Daughter of Council Member Keith Mashburn)
Peter Carrube (Simi Valley Neighborhood Council Member)
Louis Pandolfi (Advisor to Former Council Member Barbra Williamson)
Chris Coulter (Simi Valley Police Officer Association President)
Bob Swoish (Campaign Treasurer for Former Council Member Barbra Williamson)
Mike Judge (Simi Valley City Council Member)

Just an observation.

Observant One

Dear Observant One,

I too have noticed the diversity of my fan base. To paraphrase Oscar Award winning actor Sally Fields, “They like me! They really, really like me!”

Or not . . . 😉

Mitch

***

Dear Mitch,

Why has City Attorney Baxter not been fired, or at the very least be put on Administrative Leave when:

1 – She might have allegedly committed acts of retaliation against a subordinate (and may be continuing her acts of retaliation at this very moment);

2 – She might have allegedly committed acts of defamation;

3 – She might have allegedly colluded with others outside of the City before the election in their attempts to build a case against the City and maybe even one of the City’s Council members (Mitch Note: Could this be in reference to the allegations of assistance to then Simi Valley Moorpark Tea Party President Doug Crosse’ government claim against Council Member Sojka for cell phone use?);

4 – She might have allegedly wasted City money unnecessarily in hiring outside legal council when it was not needed (Mitch Note: Coming in clearer – is this starting to smell like the allegations of assistance by Baxter in connection with then Simi Valley Moorpark Tea Party President Doug Crosse’ government claim against Council Member Sojka for cell phone use, where she requested an opinion from an outside private law firm on how to handle Crosse’ simple claim that could have been denied with no expense to the City and where instead Baxter needlessly spent over $2600 on something she should have known off the top of her head?);

5 – She might have allegedly entered into a contract without the City’s approval by signing what should have been a draft of an MOU, providing it to the Mayor to sign and then allowing the MOU to be delivered and finalized (Mitch Note: Oh yeah, that whole spin and cover up of a cover up regarding the New Urban West MOU fiasco; wonder if she is still trying to throw her employees under the bus for that FUBAR??);

6 – She might have allegedly spoken of confidential personnel matters with people outside of the City and provided names (Mitch Note: You don’t say? Really, tell us more!);

7 – She might have allegedly withheld information from certain council members while providing legal council exclusively to individual members.

8 – The Public Employee Performance Evaluation of the City Attorney has been on the City Council Meeting agenda, set for closed session 4 times since February 25, 2013;

9 – The City Council had the ability to take action against the City Attorney back on April 22, 2013 because of the inclusion of California Government Code 54957(b)(2) on the Closed Session agenda.

Again I ask, why has City Attorney Baxter not been fired, or at the very least be put on Administrative Leave to protect the City from further hard due to her clear MALPRACTICE!!!
Outraged!

Dear Outraged!

You know, I hear many of those same stories, and I ask myself the same thing. I can’t believe that any one Council Member would put up with the same antics from their own personal attorney if said Council Member actually had to foot the bill for such shady stunts.

Then again, its not their money, so incompetence may not be an issue, huh?  Maybe YOU need to come to the next Council meeting and ask those same questions of the Council as a whole during public comments.  That could certainly get entertaining!

Mitch

***

With that, Simi Valley, I bid you a good night. And I recommend you too take a good long shower to wash off the “Stank O’ Bell” that any one of the above letters could be revealing if there is even ten percent truth to the allegations.

But then, I know you know just how informed my fan base is. Check out the list of regular readers!

Mitch

Ask Mitch, 4-14-2013

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Originally posted on April 14, 2013 by Mitch Green

[Editor’s note:  Today we introduce a semi regular feature, “Ask Mitch,” where Mitch empties his in box and pastes up stuff for no particular reason]

Hey Gang! My e-mail in box keeps filling up with provocative comments, along with the usual “You’re a lying liar who lies!”  or, “I bet you have tinted windows!”  or even the occasional (baseless I might add!) accusations of being less than hands free during my drive time communications.  Puleeze! I’m shocked!  Shocked I say!!

Simi, have you no shame? Why, I’m not going to play along with this “Gotcha” bloggerism! This armchair quarter quipping where any half brain undead who thinks they can lift a non original bumper sticker sentence and qualify as a procurer of deep thoughts will not stand!

No, unless you’re my ex-wife’s lawyer getting pissed about the late alimony payment, just sending me an unsigned blast about how you’re “going to make me pay!” isn’t going to shake me out of my Sunday afternoon three beer buzz.

What does get my attention, besides the real cool old school episodes of Peter Gunn playing in the background on the Airstream’s t.v., are intriguing letters like the following,

“Dear Mitch,

At the April 8th City Council meeting the issues surrounding of the MOUs were up for discussion. Most of it seemed like prepared statements about the mistakes that were made, both in 2005 and the present, with very little actual discussion. Mayor Huber had promised during the February 25th Council Meeting that the issues would be talked about in their totality, but because the scope of the issues that could be discussed had to be based on the agenda’s staff report, the talking points seemed very limited, leaving more questions than answers.

It was conceded by the other members of the council, including Mr. Becerra, that Mayor Huber’s signing of the December 20, 2012 MOU was a mistake as he signed the MOU because it was included in a stack of other documents provided to him that were already signed by City Attorney Marjorie Baxter. But the question remains why did City Attorney Baxter sign the draft and then hand it to the Mayor to be signed in the first place? If Baxter had not signed it and given it to the Mayor to sign, the mistake would never have happened. This has never been addressed or explained.

Although Tom Zanic, partner and senior vice president of New Urban West did not consider the MOU void at the time, the December 20, 2012 MOU was, in fact, Void – Ultra Vires by law because it did not meet the requirement that it be approved by the City Council. This speaks to the legality of the document but not to the intent. If the December MOU was never intended to be the finalized version, only a draft on December 20th before the Mayor signed it, why is there email communication between Assistant City Attorney David Caceres, Council for the LA Avenue Group, Kenneth Bley, Simi Valley Legal Secretary Cyndi Esparza and City Attorney Marjorie Baxter on the 20th of December stating ‘as soon as I have the required City signatures, I send you back a copy of the entire MOU.”? . If the December MOU was never intended to be the finalized version, only a draft on December 21st, the day after the Mayor signed it, why is there email communication between the same group of people stating “Attached please find a scanned copy of the agreed upon Memorandum of Understanding (“MOU”) between the City of Simi Valley (“City”) and LA Avenue Group, LLC. A hard copy will also be mailed to you today. According to the terms and conditions of the MOU, your client’s previously filed claim, dated November 21, 2012 will now be deemed withdrawn, as a result, no further action will taken upon it by the City.” ? And if the December MOU was never intended to be the finalized version, only a draft, why is it, as the Mayor pointed out, exactly the same as the MOU that was finalized in February of 2013? This has never been addressed or explained.

City Attorney Marjorie Baxter only learned of the mistake a few days before the January 28, 2013 City Council Meeting and didn’t tell the council in part because she thought it might have required disciplining Assistant City Attorney David Caceres, a confidential personnel matter. She later concluded no discipline was needed. Wow! So much for this personnel matter being confidential. The fact that she discussed a confidential personnel matter with the press and named Caceres, an employee she states required no discipline seems highly unprofessional, perhaps unethical or even actionable. With the Mayor’s concern for confidentially and the leaks of information, I wonder what he would say about this leak.

The question that remains is how is it even possible that City Attorney Baxter only discovered the mistake just before the January 28, 2013 City Council meeting when she signed the MOU and was part of the email discussions about the finalization of the MOU a month prior? This has never been addressed or explained.

Warm Regards,

Three Cell Maglite”

In the words of the beat drum player in the fifties scene from Peter Gunn, “That’s crazy, man!”  And grammatically correct too! Readers, if you can write, I’m happy to cut and paste.  Makes my job that much easier.

Our next reader comments pertain to the April 8, 2013 Council meeting, which I confess, I slept through.

“Dear Mitch,

Here are my thoughts on the council meeting the other night:

Mike Judge making an analogy of Huber not informing the council to that of mistakenly sending out an email is completely flawed. In his example he is autonomous so the act of sending the email does not require supervision and the OK of others. What is also flawed in his example is his reasoning for not saying anything. Judge wouldn’t inform anyone because the email is retracted before the recipient has seen it. With the MOU the recipient looked at the finished memorandum and perceived it to be official and finalized.

If Mike Judge thinks his example is a good one, it’s possible Judge is OK with Huber acting autonomously, without council supervision, or perhaps Judge lacks the ability to comprehend the information that has been presented to him, or if he knows full well what is going on perhaps he was trying to throw in some misdirection. None of those explanations bode well for our city. And remember, Judge had all weekend to prepare his statements.

If Huber had simply informed the other members of the Counsel, it would be difficult to look upon this as anything but a mistake. But Huber made a choice. Going with Huber’s logic that it was a non-issue and therefore was nothing to talk about might indicate that he feels things only need to be discussed as he sees fit, which doesn’t bode well for our city either. If you are a professional working in a Weak Mayor, Strong City Manager government where all five members are supposed to be equal, acting on the consensus of opinion and not autonomously, when a mistake is made that effects or involves the other council members, YOU TELL THE OTHER MEMBERS. This should not even be a judgment call, and an apology that is followed by a statement that you plan to pick and choose which city polices you follow doesn’t cut it.

Thanks,

Semper Fi Guy”

So, with that, I decided maybe I should actually watch the salient portions of the April 8, 2013 Simi Valley City Council meeting.  Other than the poorly scripted and acted out drama between the Mayor and former Council Member Williamson, this is what I observed in an exchange between Mayor Huber and Council Member Becerra that took place at approx, 2:38:10 on the City’s archived video of the meeting and ending, around 2:40:10. This is one of the few candid, non-staged moments of the evening’s presentation.

“Becerra – The other issue was… ummm… and again this goes back to.. ya know, the equal treatment of the city council. I applaud the fact that, Bob, you put in place a policy… ya know… on the signatures.. ya know, on the contracts. That’s something else we should have been notified on. When , ya know, cause again not one of us has the right to create policy. I, in fact, just gave you 3 policy issues that I would like you all to consider to have brought back for your consideration. And so… I mean I applaud the fact that you did it and it’s not a big deal but we should have been at least m… notified…

Huber – You, you were notified of it and by the way from the standpoint of my signature… my signature… if this city council is creating a policy that I gotta sign stuff like it happened before I’m not gonna follow the policy. This is MY signature. I’m the one that got the ‘Gotcha” problem. OK? I’m the one that you did the “Gotcha” with.

Becerra – I didn’t… I… Bob., ya know, again, I didn’t play “Gotcha” politics…

Huber – Oh yes you did.

Becerra – No. What I did was raise a very serious concern that…

Huber – The second time in the last six months you’ve done “Gotcha” stuff.

Becerra – Bob, this isn’t political. I’ve.. you know you keep talking about how you’ve served 7 years here. I‘ve served 15 and I know you are going to throw in that you add your community college time and now you are up to 13 or 12 or whatever the number is. This isn’t about, ya know, our pedigree on how long we’ve been up here. This about us doing what we think is right.

Huber – I agree

Becerra – And I’m allowed to advocate on the issues that I think are right when I, ya know, don’t think something is being done appropriately. And I believe when, ya know, the mayor or me or anybody says they are creating a policy for this city, we at the very minimum have a right to know about that policy. Y.. you’re right, it is your signature, You’re absolutely right, I give you that and you have the right to protect yourself. I’m not arguing that point at all. But in.. in the same way we have a right to protect ourselves to at least be inf… I don’t think what I am asking is too big a deal. Please inform us, when you are directing staff, who work equally for all five of us, you know, to change policy or to change the way they do business in this city. That’s what a Weak Mayor, Strong City Manager form of government is.

Huber – I wasn’t… I wasn’t.. uh… changing the way they did business. I was changing the way I did business.

Becerra – Which had an impact on the way they do business.

Huber – That’s true. Because I’m not going to sign another document as long as I’m mayor of this city and.. and I don’t believe any other mayor in the future because of the “Gotcha” politics would do any different than me to protect themselves when there is an inadvertent mistake to… someone to Armchair Quarterback later. OK? Armchair Quarterback is real simple to do. OK? Real simple. But you weren’t in the trenches. You didn’t have to deal with it. And to me, I was told that it was invalid and that was the end of it. You know… ahhhh… it’s just… it’s just.. the way it is. We can’t change the facts. I’ve said I’m sorry it happened. I don’t know what else I can do. I’ve changed the policies of the way I’m… I’m gonna do my signature. Period. It’s just like the… the… the letter to go… I don’t know if there are policies quite frankly, OK? But ask me to send a letter to the President of the United States when I just got hit with “Gotcha” politics without coming from the council, I’m not gonna do it. It’s coming before the council, it’s gonna be on our agenda. That’s the way it is. OK? You want to delegate that to the City Manager, that’s fine for me. And he can be on the receiving end of “Gotcha” politics. Or she.

Becerra – Well like.. like I said, I fully support your right to protect yourself and I support our right to be informed of when those actions take place. It’s not too much to ask. It’s an ethical and.. and it is a… it is a professional… ahhh… ya know, I think obligation of the City Manager and the City Attorney to keep us informed equally. The other issue…

Huber – Well I’m not disagreeing, by the way, I’m not disagreeing with you on that.

Becerra – Well..

Huber – That I’m not disagreeing with you on that.

Becerra – Well I think the issue we are disagreeing on is the “Gotcha” politics I…

Huber – Well it is “Gotcha” politics. There’s no question it’s…

Becerra – I say we are disagreeing on something and you say it’s “Gotcha” politics.

Huber – Well it is. It is “Gotcha” politics.”

Now doesn’t that take all?  And with this context our final e-mail for the day finally makes sense . . .,

“Dear Mitch,

About the only few things that the City Council agenda item on the MOU issue revealed was,

1 – The Mayor told the paper there was a new policy in place to ensure the incident wasn’t repeated, which makes it appear to the public that there are new city authorized procedures, when they are just his personal requirements before he signs something.

2 – If there is a city policy the Mayor disagrees with he is not going to follow policy.

3 – This is all “Gotcha” politics, just like the last time Becerra brought up a complaint about Huber, the incident with Leigh Nixon and the threat to the Chamber’s funding. This makes an excellent case to tie the truthfulness of Huber’s statements here with the Chamber incident because Huber, himself, has tied the two issues together under the banner of Becerra’s “Gotcha” politics. Big tactical error.

Don’t call us . . .,

Senor Sombra Del Delator”

Ok, so there you have it. I”m thinking I need to brush up on this other “gotcha” incident.  Or maybe, dear readers, you can send me your insights. [[hint, hint!]]

So this is it for this week’s inbox.  Wendy has just showed up here at the Airstream with Betty our psycho puppy bouncing up and down on her lead and its time for me to sign off until our next cheap shot gotcha armchair quarterbacking session. [[Snicker]]

See ya Simi Valley! You send em, I’ll print em!

Bottom Line Meant for the New Guy

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Originally posted on April 12, 2013 by Mitch Green

Tonight I’m writing from my wife’s house just 100 or so yards outside of Simi Valley City Limits, tacked high up in the hills on the western most edge of the Santa Susanna Knolls. I’m sitting on the front balcony, the view is incredible, maybe 30 or more miles visibility, the sun has set with spiraling magenta streams swirling in the clouds against blue skies and the train has just left the station down below. I’m wearing my old City Attorney sweatshirt, Wendy is barbequing and the phone just effing rang derailing my chain of thought (thanks Kelly).

I call Casa Verde my wife’s house because as a guy, paying for multiple dwellings including one with a magnificent 40 foot salt water pool which I’m restricted from using by certain court orders, I recognize the fragility of any situation. Hence my recognition, be it late in life, to kiss the ground my wife walks on if for no other reason than to continue to enjoy visitation rights to those properties I get the privilege of paying for. And with my charm and track record, maybe you can understand why I keep an Airstream in town. Its certainly not for the opportunity to run for City Council again.

The sun has now pretty much set behind the hill to the west of Casa Verde and the band Toro y Moi is playing in the background. We have a pair of pet owls that haunt the hood and one of them is on our chimney while the other looks down from the telephone pole at the edge of the property. Betty the mixed black meth lab is bumping her nose into my side demanding attention and threatening to knock over my second glass of red.

And about this time Alex Boy Genius shows up with his mom, Mrs. Green 1.0, in the black Prius I get to pay for but never drove. 1.0 freaks a little about the steep hill, Wendy helps calm her nerves and we get her turned around and back down the hill and Alex Boy Genius is here for the weekend. And it seems, his friend Silent Bob the nice kid who doesn’t speak.

I can’t get involved in the drama. All I can think is, it’s Friday, the chicken is barbequing, the red is a good Cabernet from Paso Robles, Mrs. 1.0 is happily on her way, Wendy the 2.0 is dancing on the balcony, Toro Y Moi is hitting the beats in the background and the warm lush comfort of the evening is enveloping me. Life is good.

Speaking about Alex Boy Genius, its amazing what it is that makes us think of those dear to us. I have a former co-worker whose daughter was born just days apart from ABG and every time my former co-worker posts a picture of her daughter, I always compare the two. The daughter just got her license today it seems and a very cute photo was posted. My first reaction? ABG keeps trying to kill me during driving lessons. Yup, that was my first thought. I guess that’s the difference between raising sons and daughters. We’ve got three boys over here so we don’t really understand the challenges of raising drop dead gorgeous girls. But we do understand raising boys who want to wreck your cars.

Not really sure why I mentioned that, but that’s part of my week. Oh, by the way former co-worker, that offer from me and Wendy to drop by the house is on any time you want.

So with the first 500 or so meandering words laid down and the barbequed chicken beckoning and a filled third glass of red on stand by, I guess its time to get to the meat of this week’s column. That is, if there is anything here beyond a friendly Chatty Cathy automatic writing session.

And looking over my notes, it does appear that I intended to discuss certain articles that appeared in the Star this week.

[Dinner Break]

Getting to the point (finally), the issue of the week is the continuing train wreck that the City Attorney presents in relation to what started out as a minor matter, the memorandum of understanding regarding the Parkside Villa condominiums so as to avoid a needless lawsuit from a developer against the City, which compounded into coverups, lies, coverups of coverups and more lies, and now an intentional retaliatory and perhaps intentionally libelous act by the City Attorney against one of her subordinate attorneys in the Star this week.

A basic refresher time line is in order.

On November 19, 2012, in closed session, the City Council voted against the advice of legal counsel to threaten developer LA Avenue Group / New Urban West with litigation if it went ahead with its plans to lease out the luxury Parkside Villa condominiums instead of placing them up for sale.

On November 22, 2012, LA Avenue Group / New Urban West filed a government claim against the City for limiting its rights as a property owner regarding what it can do with its property. And considering that the City had no legal right to prevent the developer from renting out its property, if 45 days were to come and go from the date of filing the claim, then the claim would be deemed “denied by operation of law,” the developer would have been deemed to have exhausted its administrative remedies, and would be free to file suit against the City. And would have most likely won.

The 45 days from date of filing the claim against the City lapsed on January 7, 2013. Which means LA Avenue Group / New Urban West would be eligible to file suit against the City on January 8, 2013.

That is, unless the City could find a way to convince the developer to withdraw its claim. Which is exactly what the MOU signed by the Mayor and the City Attorney on December 20, 2012 stated. The City agreed to withdraw its threat of litigation against the developer and the developer agreed to withdraw its claim against the City. And on January 8, 2013, no lawsuit was filed against the City.

Great lawyering, you would think.

Except, there was a small detail that was overlooked. The Mayor and the City Attorney didn’t have City Council authority to sign the MOU. OK, no biggie. Lots of agreements are entered into subject to council approval. But what happened next was the City Attorney, Mayor and City Manager held a public hearing on January 28, 2013 on whether or not to enter into this MOU. And the City Attorney and Mayor didn’t bother to tell the public and the other four council members that they had already signed the MOU. And the City Attorney was now saying the MOU was “void ultra vires” or void from the inception. But the developer didn’t know that. And the e-mail trail didn’t reflect that. And the City Attorney was now accusing her Assistant City Attorney who negotiated the MOU that provided a way for the City to withdraw its threat to file suit against the developer and for the developer to withdraw its claim against the City, remember, that MOU? The City Attorney was now in January accusing her subordinate of sabotaging her office. And in return, that subordinate filed a personnel action against his supervisor the City Attorney.

So moving forward in time to this week’s Ventura County Star article, we find the City Attorney commenting on her subordinate, in print, as follows,

“Baxter said last week she learned of the mistake a few days before the Jan. 28 meeting and didn’t tell the council in part because she thought it might have required disciplining Assistant City Attorney David Caceres, a confidential personnel matter. She later concluded no discipline was needed, she said”.

Now, let us analyze the above statement, printed on April 10, 2013. Baxter acknowledges that personnel matters are confidential. Baxter acknowledges that disciplining her subordinate would be a confidential personnel matter. Baxter makes the statement to the press, disclosing the name of her subordinate that she considered disciplining, an acknowledged confidential personnel matter, subsequent to the subordinate filing a personnel complaint against Baxter.

Now, to me, just your run of the mill former government attorney with 34 years total government time and 10 years government attorney time, my first impression is that Baxter intentionally retaliated against her subordinate for bringing his personnel action by outing him in the press. Why she mentioned his name in the press is beyond me but it is inexcusable. The first adage of being a general counsel, and what we took to heart during my tenure at the Simi Valley City Attorney’s Office was “Do Not Create Liability Where It Does Not Already Exist!”

So what kind of liability did Baxter create for the City for her retaliatory act against her subordinate attorney? For that I consulted with a high level Human Resources executive to gauge her reaction. Upon first blush I think she blurted out something akin to what banned me from certain local forums. After she regained her composure she sent me the following e-mail:

“As an HR Director for a large employer in California with a nationwide presence and over 3,000 employees I can attest to the fact that we carefully navigate the landmine of potential liability when it comes to claims of retaliation and discrimination by our employees. We dutifully conduct ourselves appropriately and train our managers to treat everyone with respect. Having said that it’s concerning to witness the actions of the Simi Valley City Attorney Marge Baxter.

The mere fact that she would give a statement to a reporter and actually named an employee that is a direct report to her is mind-boggling. Not to mention the fact she alluded to the fact he may be disciplined for an action that seems to have stirred up enough chaos on the dais to warrant several articles and accusations back and forth from the council. Back in January Marge mentioned an employee that had made mistakes in yet another article. At that time she had the respect to not provide a name. It’s not hard to connect the dots now that she’s once again throwing employees under the bus that this is the same person she’s placing blame on. She’s setting him up for failure here to save herself. What kind of person does this? Why would she name her employee in the first place to a reporter? Isn’t she trained to keep matters confidential and maintain the utmost in professionalism? Lead by example?

The Star article goes on to quote this employee and state he has filed a complaint with HR. I’m sure he did and what I can say is his complaint has merit. His boss called him out in the local paper and dropped the blame squarely onto his shoulders. What’s concerning here is the fact that his name is very unique and if someone does a goggle search they will find an article with his name tied to potential disciplinary action. Well that may not help him in his future job search when a possible employer sees this.

So now the facts boil down to how will the employee handle this? From where I sit it’s clear that we have a very good case for retaliation that could cost the city up to seven figures. You can arrive at this by simply mapping out Marge’s actions and public statements. Someone with experience and education knows better. The fact that she’s the City Attorney puts her in an upper echelon that many people don’t find themselves. Her job is to protect the city and ensure that she minimizes liability. The fact that she has single-handedly created her own retaliation and defamation suit is incredulous. Marge has placed the city in a very precarious place. The Mayor himself is an attorney and will be the first to start to evaluate the City’s liability and cost associated with this snafu.”

So, that’s what the pro’s have to say about this. No longer a “tempest in a teapot,” is it?

I also ran the fact pattern by a prominent plaintiff employment attorney, and all he could do was lick his chops and beg me for the subordinate’s telephone number. No, I can’t go there, but if the employee does lawyer up, who could blame him?

So now comes the time to take action. Baxter was hired on a three-two vote with Huber, Judge and Williamson for, and Becerra and Sojka voting against. Now that its time to protect the City from further harm, how will the vote come down to protect the City from Baxter? It may come down to Huber and Judge on one side, Becerra and Sojka on the other, and our newest council member having to cast the deciding vote.

If the first measure of the City Attorney is to minimize liability to the City, and considering that Baxter has inexplicably violated that very measure for all to see, I trust that Council Member Mashburn will act first to protect the City’s interests.

Next week, my fantasy football picks for the Interim City Attorney reserve contingency team.

Night Simi Valley!

More on Simi Valley City Hall’s “Transparency Problem.”

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Originally posted on April 7, 2013 by Mitch Green

As lawyers are taught to do, let us first set up the following hypothetical situation:

Let us assume that on November 19, 2012 a certain City Council voted in closed session to file suit against a local developer in order to prevent that developer from renting out real estate the developer owned within the city limits.

And let us further assume that in response, the local developer filed a government claim against the City on November 22, 2012, threatening to file suit against City Hall on various theories over the city’s threat to limit the developer, as a property owner, from using its property in otherwise legal ways, such as renting its property instead of selling its property.

And let us further assume that the 45 days from filing the government claim against the City until the claim is “deemed denied by operation of law” after which the developer is free to file litigation against the city and in all likelihood prevail, runs on January 7, 2013.

And now lets assume that in the City’s recent response to public record act requests seeking the same subject matter and submitted independently by yours truly and the Ventura County Star, the City chose to read the requests quite narrowly and omitted an email from the attorney for the developer to the City dated December 14, 2012 at 2:48 p.m., wherein the developer’s attorney makes clear that the negotiated dialogue over the wording of the MOU are solely intended to provide a way for the developer to withdraw its claim against the City and for the City to avoid “fruitless litigation.”

And finally, the hypothetical requires that you understand that if the MOU is not signed ASAP, and January 7, 2013 comes and goes without an agreement, the developer then goes ahead and files suit against the City and the City wastes valuable resources in the process of losing expensive and avoidable “fruitless litigation.”

With that in mind, read the two clauses from the MOU which the City describes as a “draft,” signed by the City Attorney and the Mayor on December 20, 2012 and thereafter by the attorney for the developer LA Avenue Group and the president of LA Avenue Group,

“5. The City Council hereby withdraws its November 19, 2012, direction to the City Attorney to initiate litigation to prohibit leasing of the individual units in the Project and will not seek to recover damages for any injury it has suffered to date.

6. LA Avenue Group hereby withdraws the claim for damages previously submitted to the City and will not seek to recover damages for any injury it has suffered to date.”

The exact same paragraphs are found in the exact same MOU signed again by the City on February 27, 2013.

Now, with the above “hypothetical fact pattern,” ask yourself the following two questions:

1) Do you really buy the City’s “explanation” that its signing of the MOU on December 20, 2012 was an “error,” that the document was really an invalid “draft?”

2) Or, do you think the developer believed the City was, on December 20, 2012, legitimately negotiating in good faith to withdraw its threat of “fruitless litigation” in exchange for the developer withdrawing its claim against the City, which claim against the city would be considered “denied by operation of law” on January 7, 2013, thereby allowing the developer to file suit immediately thereafter, unless, of course, the City did something immediately . . ., like withdraw its threat of litigation?

PS:  No lawsuit was filed against the City by the developer on or after Jan 8, 2013.