Why Bell Happened and How to Prevent Repeats

OPEN GOVERNMENT -- The explosive self-dealing scandal that has in a matter of weeks blown away the city of Bell's senior administrative tier was probably inevitable, given the gaps in the Brown Act and the newspaper publishing tradition that once provided small towns with a watchful eye and a to be reckoned with, notes a commentary in Voice of OC.

Read more »

Take the survey regarding the pavement report here, or contact us directly.

To the residents of Encinitas,

The City of Encinitas is again denying residents access to public documents. One document cost $70,000. I’ve been trying to get the document since January.

I want a prosperous future for our hometown. That’s why I research the details of how our city is managed. For the last several years I’ve been pursuing information on the long-term maintenance plan of the city’s streets. Only after pressing, City staff admitted that they didn’t have a current comprehensive assessment of street conditions or an optimized plan to keep the streets from deteriorating.

After the admission, the City hired a contractor to do a streets report. The contract was approved February 2009. The contract required the report be complete by August 2009, in time to be used to develop the City’s road maintenance budget. City staff also admitted that they believed our city was underfunding street maintenance by millions of dollars a year. With streets, an ounce of prevention unequivocally averts a pound of cure. Pay now or pay a lot more later.

The most cost efficient stage for road maintenance is before rapid deterioration begins. (Road condition is on the Y-axis.)

The report is a year overdue and the City Council blindly approved this year's streets maintenance budget. City records indicate that the consultants were paid for a final report months ago. Council candidate Tony Kranz called the consultants and they say the report has been materially complete for many months (prior to budget approval).

Withholding the document allows staff time to massage the findings and delay the release until an opportune time arises.

It would not be the first time a materially finished report was kept secret from the public for months or even years. There is good evidence that the City-wide Traffic Study, the Cardiff Specific Plan, the Retiree Health Care Cost Study, the Scripps EIR, and the Hall Park EIR were materially complete long before they were released. In the case of the Traffic Study, the consultant and Council discussions would later reveal that the reason for the denial of access to the documents was for personal political gain-the reelection of Council Member Dan Dalager.

A healthy democracy feeds off timely access to relevant facts to facilitate unbiased analysis. Accountability requires open access to public records that show how decisions are being made.

So how does the Council majority subvert the system? They stamp the documents they don’t want released ”draft". Then they turn around and say it is against policy to release drafts. They say possible errors must be edited before release. Why not stamp it draft, release it, then let the public help review the document? This would be a much more open process and the result would be a better final product.

The public understands the difference between a draft and final report. Council’s fear that the public will freak-out if an error is found in a draft is overblown. Isn’t it better to find errors in a draft rather than the final version?

A few residents were able to find serious errors throughout the final City-wide Traffic Report in one weekend, and many more subtle problems later. Because it was too late for the problems to be fixed, and the problems so serious, the Traffic Commission could not recommend accepting the report. The City wasted $143,000 on the project.

The City is ignoring the State Constitution, which guarantees access to public records. Attorneys from Calaware, an open government advocacy organization, informed the City that the pavement report must be released, even if it was a draft. The City refuses to address Calaware’s key points. Mayor Dalager has not responded to email asking for reconciliation of the matter. Only Council Member Barth has demonstrated interest in publicly discussing the issue.

Should the City keep everything it deems a draft secret? Should the City be allowed to keep consultants’ original (bound and delivered) work secret? Should the City address questions regarding the legality of its open government practices? If the City doesn’t explain, should the public ask a judge to look into the matter?

We want to know if the public thinks the issue matters or has suggestions for resolving the matter. Please send us feedback.

Kevin Cummins
Vice President
Encinitas Taxpayers Association

Links to Pavement Management Report Issue:
City warned it is violating the law and principles of open government
City will not address legal issues
Report is done
How this issue could have been collaboratively averted

Links to Pavement Management Report Issue:
City warned it is violating the law and principles of open government
City will not address legal issues
Report is done

Re-posted Entry Below: Had the Council decided to have open discussions about the city's public record practices the "draft" exclusion being used to withhold the pavement management report would have been brought up, discussed and resolved in a collaborative manner.

On June 10th (2009) the council considered drafting a sunshine ordinance. Kevin Cummins had cornered a less than willing council into deciding if they would take up the matter.

Here is what CFAC writes about sunshine ordinances in California:

Although state law--mainly in the form of the Brown Act and the Public Records Act--governs access rights at the local level, cities and counties are free to enact ordinances that provide GREATER RIGHTS OF ACCESS than state law. These local laws providing extra rights are often referred to as "Sunshine" laws.

Teresa Barth provided the lone vote for moving forward with a sunshine ordinance.

Houlihan voted against an ordinance. It was unclear why. Some observers didn't even realize she had voted against it.

Jerome Stocks apparently voted against the ordinance because the city was already being open and transparent. He used the staff's report as evidence that staff has been doing a great job and that the city is very open. Staff and Stocks are correct about the city being responsible for following the California Public Records Act and the Brown Act.

Stocks did not discuss the Open Government practices and provisions that are beyond these two state laws. In some cases, these provisions are included in the sunshine ordinances of other cities. The practice at Encinitas City Hall does not exceed many of the key extensions found in the sunshine ordinances of other cities.

City staff disclosed that they had left these provisions out of the staff report, but none of the council members inquired into the missing information.

Stocks also failed to address years of objections from the public and that the city often does only the minimum, uses gray areas in the law to restrict public access, and frequently violates the CPRA and Brown Act. Danny Dalager even admitted to violating the Brown Act during the discussion.

Danny has implied several times, on record, that open government laws are a burden (without qualifying it as a necessary/useful burden). This week he told a story about how a resident had conduced a records request for an email that contained a citizen's phone number.

Danny says the requester used the phone number to harass the citizen who sent the email to the city. His conclusion wasn't clear to me, but I think that is his justification for deleting his public record emails. It wasn't clear if he was also admitting to violating the California Public Records Act. He was certainly admitting to violating the law's intent.

Unfortunately, Danny did not discuss why his concern couldn't have been addressed during the drafting of a sunshine ordinance. Indeed, without taking action the story could repeat.

No one brought up that there is no satisfactory means for the public to have their concerns regarding violations of open government laws resolved, short of suing the city. This is the first thing I would ask to have included in a sunshine ordinance.

Recommendation
The citizenry will either have to: elect a council majority interested in ensuring the fundamental components of democracy are secured, or adopt a sunshine ordinance via an initiative.

See Also:
50% Chance of Sunshine

City made a practice of deleting emails. Deleted emails were not backed up.

For decades the State of California and local governments have offered a "defined benefit" retirement plan for employees. A defined benefit plan guarantees an annual pension based on retirement age, years of service, a multiplier and final salary (retirement formula). For most cities in California, including Encinitas, the retirement plans are managed by the Public Employees Retirement System (PERS). Cities & employees make annual contributions to PERS which in turn pays the retirees.

Due to changes in the retirement formula in the 1990's, contract agreements that required cities to pay both the city's and the employees contribution to PERS and the recent volatility in the stock market have made these increased benefits no longer sustainable.

Current State law prevents cities from changing the retirement formula for existing employees. However, we can create a different retirement plan for new employees. I will recommend increasing the retirement age, averaging the last three years of wages to determine final salary calculation and reducing the multiplier.

Current employees will be required to pay their full retirement contribution requirement.

For the Record: I am a retired State employee. I was hired before the retirement formulas were changed and I paid the employee contribution. My total gross is $1214.42 a month with $109.11 in deductions for medical benefits.

Notes: The ETA will publish any candidate's positions on financial issues.

In 2005 current council members Houlihan, Dalager, and Stocks voted to increase pension liabilities. More information can be found here.

Tony Kranz did his own investigating on the issue of the streets management report, after reading this ETA blog post. Kranz conveyed his findings to the city council this week and asked that the streets report be released.

Kranz reviewed the contract and found that it was approved February 2009 and the project was to be complete August 2009. The contractors expected to be working 5 months. The report will have taken 160% longer than expected to be completed. The delays mean that the council was unable to use the report in establishing this year's road maintenance budget, a major reason for spending $100k for the plan.

The report appears to have been materially complete long ago and should have been used to aid budget discussions. Kranz called the consultants and he reports that they consider their report complete. He also described evidence that the consultant has been paid for completing the report.

The first 3 minutes of the video below contains Kranz's statement.