Dan Dalager, Jerome Stocks, Jim Bond, and Maggie Houlihan no longer have copies of the memo about the Pavement Management Report sent to them by the City Engineer. The email was clearly about city business and had a substantive description of the status of the report. It also indicates that that report has already been reviewed and revised.
Additionally, Dan Dalager no longer has the correspondence asking for his assistance in avoiding taking the Pavement Management Report issue into the courts (he never responded).
It appears that the City Council (minus Barth) has made it a policy and practice to destroy important correspondence.
Why would the Council destroy a memo from the Director of Engineering about the status of a $100,000 contract?
Public records are suppose to be retained. The law requires it.
According to the City Clerk's office, the City does not archive email or have a repository of emails somewhere other than attached to council member's personal mailbox. It is incredibly easy and inexpensive to create such an archive. Some cities even post up all their council's email (e.g. Palo Alto).
The City has been playing games with electronic public records for years. In 2004, during a council meeting City Attorney Glen Sabine told the council he would write a secret memo to the council about their policy of email destruction. (Why should the law be secret?)
Is it legal to destroy correspondence that is related to city business, like the Pavement Report Memo or my letter?
Calaware states that the council majority is violating the law and that there are criminal penalties for the violations. From state law:
6200. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other
person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.
6201. Every person not an officer referred to in Section 6200, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both such fine and imprisonment.
These are the Government Code records retention statutes governing cities:
34090. Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making
a copy thereof, after the same is no longer required.
This section does not authorize the destruction of:
(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.
This section shall not be construed as limiting or qualifying in any manner the authority provided in Section 34090.5 for the destruction of records, documents, instruments, books and papers in accordance with the procedure therein prescribed.
34090.5. Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:
(a) The record, paper, or document is photographed,
microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.
(b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document
(c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.
(d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.
However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference.
For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript, exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.
The council majority is well known for ignoring the law even when the public cries foul. Example: Prop C.
Public records are suppose to be retained and disclosed when requested.
In response to a public records request for emails to the council regarding the pavement management report, Mayor Dalager, Stocks, Bond and Houlihan report there is nothing for them to disclose. Nada.
Barth had an email that was sent to the whole council. She is apparently the only council member willing to comply with state law and share it with the public, or at least, not hit the delete button wildly.
The email she disclosed is from City Engineer Peter Cota-Robles. In it he confides that the report has already been combed through (there should no longer be any major "errors") and there is a good chance that the report has been materially complete.
Here is the full email:
From: Peter Cota-Robles
Sent: Wednesday, July 21, 2010 7:38 PM
To: Phil Cotton; council
Cc: Glenn Sabine; Richard Phillips; Mark Muir; Kipp Hefner; Leroy Bodas
Subject: Pavement Management System
City Manager and Council Members:
This is a response to the comments this evening from Mr. Tony Kranz regarding the Pavement Management Plan document.
I spoke to Mr. Kranz earlier today and informed him that as a matter of policy, the staff considers most deliverables to be draft until they have been fully reviewed by staff and any errors or omissions have been corrected by the consultant. Most documents undergo several levels of review which result in multiple drafts. Release of drafts is considered on a case by case basis based on legal parameters that have been previously outlined to Council by the City Attorney. Once a document is in final draft form, staff prepares a summary report presenting it to Council, at which time it is also released to the public (if it has not already been released). This process insures that accurate information, together with any associated staff analysis, is made available simultaneously to elected officials and the public, which reduces confusion and provides for orderly dissemination and review of complex information.
The history and status of the Pavement Management System document is as follows: The On February 11, 2009 City Council awarded a contract to Nichols Consulting to develop a Pavement Management System for the City. On March 5, 2009 a contract with Nichols Consulting was fully executed. On March 19, 2009 Engineering held a kickoff meeting with Nichols Consulting to review the scope of work for the project. Consistent with the contract provisions, during the following month the City’s GIS staff compiled a data base for Nichols Consulting of street inventory information including surface type, functional classification, and age of construction. In parallel, other City staff also compiled Maintenance & Repair (M&R) historical records from 1991 to 2009. City staff also compiled street maintenance budget information from 2003-2009 for street maintenance along with bid tabulations on past overlay programs.
In April 2009 Nichols Consulting initiated “condition surveys” on 170 miles of City streets including measuring longitudinal and transverse cracking, alligator cracking, block cracking, raveling, etc. From April 2009 to June 2009 staff worked with Nichols Consulting to evaluate several available Pavement Management computer software programs; in June 2009 a decision was made to utilize the Street Saver Pavement Management System for the City’s pavement management program.
Condition surveys were largely completed by Nichols Consulting at the end of September 2009. Nichols Consulting met with City staff on September 23, 2009 to discuss completion of the condition survey and how Nichols would be inputting the condition survey data into the Street Saver program. During the same meeting City staff and Nichols Consulting discussed maintenance strategies to input into the Street Saver program. From October 2009 to December 2009 Nichols Consulting inputted the street condition survey data, maintenance strategies, unit costs for different maintenance scenarios, etc. into the Street Saver program. Nichols Consulting submitted the draft Pavement Management Program Implementation Executive Summary Report and the Pavement Inventory and Budget Analysis Report to the City in December 2009. City staff sent comments on the draft reports back to Nichols Consulting at the end of February 2010. At the end of March 2010 Nichols Consulting submitted a revised draft of both the Pavement Management Program Implementation Executive Summary Report and the Pavement Inventory and Budget Analysis Report. Due to other priority projects with funding or construction time frame constraints including storm damage repairs, Parking Lot B, the Olivenhain Sewer Pump Station, Paul Ecke Safe Route to School project, Lone Jack/Stratford Knoll Drainage Improvements, 2010-2011 Street Overlay program, CDBG Citywide Concrete Replacement, as well as temporary staff reductions due to maternity leave and illness, review of the final draft Pavement Management Program Document was delayed. Engineering Staff is now completing review of the current draft and as stated at tonight’s meeting will schedule a report to Council in September at which time a final draft will also be made available to the public.
Please let me know if you have any additional questions or concerns at this time. - Peter
The report has been in the oven long enough.
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.
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 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.
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.
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.
50% Chance of Sunshine