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Just Answer the Question
credit: woodchips.com
I hate it when Tustin Councilmember John Nielsen and I agree on something. But, I have to give credit where credit is due.
John Nielsen asked a very good question at Tuesday’s city council meeting: Why would the city council delegate authority to a staff member to sign off on completed capital projects? The question, in relation to Item 5 on the agenda, was straightforward enough. The answer, on the other hand, was nearly impossible to discern from the smoke and mirrors the city attorney and the public works director threw in front of him as a response.
The city attorney, David Kendig, responded to Nielsen’s question with an answer already in the staff report about the length of time the city has after completion of a project to file necessary paperwork, justifying the delegation by saying the city council doesn’t always meet in a timely manner to approve the authorization. “it’s not that staff won’t report to you that the project has been completed,” said Kendig. No subterfuge, just getting the paperwork done.
OK……
But, John then asked if there were examples of that happening. Kendig deferred to public works guy,Doug Stack, who said,” Yes, we have,” but gave no real examples, only reiterated the reasons just why his department wanted this authority. To justify his position, he stated that two other cities and the OCTA all delegate this authority. So, let’s see, that’s two cities out of thirty-four. Nielsen kind of looked at him and asked again, in so many words, about the necessity of this. Kendig added that he wasn’t aware of any issues with this type of ordinance but, again did not offer an answer to the overall question.
Councilmember Nielsen (and later, Gomez, we found out) simply wanted to make sure the city council wasn’t delegating too much authority in the issue. After all, it is the city council that authorized expenditures for the work. Shouldn’t they insure the project has been completed to satisfaction? He asked if a dollar threshold on the project cost could be included and was again slapped down by the city attorney.
In the end, with Councilmember Gomez’ input, the city made a minor modification to the resolution that would allow the Director of Public Works to submit the paperwork on his own only when it was not feasible to bring it before the city council first.
We would like to have seen stronger language that makes sure staff do not overstep their bounds. Quite frankly, having only 2 other cities, both of whom are much larger than Tustin, handing over this authority, is not enough justification in our mind. We task the city council with total fiscal responsibility and any related approvals should remain with them.
Hopefully, Nielsen and Gomez will remember this episode later this year (we’ll try to remind them) and bring it up for review at a later time to insure the integrity of the policy.
On The City Council Agenda, February 19, 2013
There’s not much to get excited about on the Tustin City Council agenda this week. It is nice to see an agenda without the usual City of Tustin v. TUSD closed session item. In fact, there are no current lawsuits listed for discussion and only the usual two each, initiation and exposure to, litigation. There are also two liability claims (precursors to lawsuits) under consideration.
One item on the Closed Session Agenda does deserve scrutiny, the performance evaluation of the City Attorney, David Kendig. Since taking over from predecessor Doug Holland, Kendig has displayed less than stellar performance, in our view. Both lawyers hail from the Law Office of Woodruff, Spradlin & Smart which has handled the city’s legal affairs since 1995. At one time, we lauded the city for continuing to use the firm for legal guidance, particularly with Holland as the chief representative. We had high hopes for Kendig but he has proven that he is more of a panderer than an attorney. He quickly aligned himself with the right side of the dais and has since become entrenched. He has given questionable advice and, in some cases, has blatantly attempted to mask wrongdoing on the dais with opinion that doesn’t come close to proper legal advice.
That said, we have a few new/old faces on the council who, hopefully, will take a focused look at this attorney’s off-track decisions. Continued use of
Kendig should go against the grain of each councilmember who ran on an open-government-transparency ticket in the last election. In fact, it is perhaps time to take a look at the contract law office as a whole.
There is at least one item on the Consent Calendar that should be discussed openly before the city council. City staff are recommending that Notices of Completion for capital improvement projects be allowed to be filed “administratively”. This means the city council would not necessarily be aware that projects have been completed. While staff call this “streamlining”, we would call it an improper delegation of authority by the city council who should be kept apprised of the status of all projects involving city funds. We recommend the city council pull this item for discussion and vote.
Other than these items, it should be a pretty easy meeting for the city council. That will give the three amigos more time at their favorite watering hole after the meeting.
Closed Session
Conference with Legal Council – Two each, exposure to and initiation of litigation.
Public Employment- Performance Evaluations of the City Manager and the City Attorney.
Liability Claims- Consideration of claims of Carlos Cortez and Gresel Montes.
Conference with Real Property Negotiators- 3 items, all on the MCAS property.
Public Hearings
Specific Pan Amendment – 2012-02 MCAS Tustin Specific Plan – The 9th or so amendment to make what appears to be minor changes in language and items of the plan for clarification.
Consent Calendar
Adopt Resolution Ordering Preparation of Engineer’s Report- Tustin Landscape and Lighting District levy of annual assessments for FY2013-2014 – Tustin Ranch.
Adopt Resolution Authorizing Director of Public Works or City Engineer- to accept capital improvement projects and complete and file Notices of Completion.
Terminate Contract for Annual Catch Basin Insert Cleaning- The contracted company has given a notice they have gone out of business. This is an interim measure until a new RFP can be advertised.
Office Lease Extension- Successor Agency offices located at 245 Centennial Way. Perhaps we should look at eliminating an unnecessary expense and bringing these staff back to city hall.
Urban Area Security Initiative Grant- A portion of $3.6 million dollars is available for response to acts of terrorism. This is the annual re-authorization of the Chief of Police as the official representative for the UASI Grant.
Add Harrassment to the City Attorney’s List of Skills
Like you, we thought this embarrassing saga of the Tustin City Council was over. John and the Fab Four had been sworn in, Deborah Gavello and her arch-nemesis Jerry “Boss Tweed” Amante had been ceremoniously swept from the dais with kind words and lots of resolutions. We had hope that, perhaps, the acerbic cloud of dissension was about to dissipate. So, we have to wonder why and at whose direction the city attorney, David Kendig, decided to take one last swipe at former councilwoman Gavello.
In an email, dated a scant three days after the installation of the new city council, Kendig decided to send an email to Gavello demanding she change her website as she is no longer a member of the city council and her website bills her as such. To add insult to stupidity, he also demanded she remove the city logo from her website as it was “unauthorized”.
From the Email:
On Dec 9, 2012, at 9:12 AM, David E. Kendig <DKendig@wss-law.com> wrote:
Good morning, Deborah,
It has been brought to my attention that your website (www.DeborahforTustin.com) still refers to you as a Councilmember. Since you left office last Tuesday, it is time to immediately remove that website, remove your former title from the website, or change the website to correctly reference your current status. In addition, in reviewing that complaint, I observed that the website contains a facsimile of the official City seal on one of the link buttons. Such use of the City logo is prohibited by the Tustin City Code, so that also must be removed from the website immediately.Please let me know if you have any questions.
David Kendig
City Attorney, City of Tustin
Yes, I am still laughing over the fact that, when we brought this illegal use of the logo up to the city in regard to then candidate Allan Bernstien’s blatant illegal use of the logo and misrepresentation as a city councilmember, Kendig sheepishly had the city clerk send out a reminder to everyone.
Now, one could say that Kendig was just doing his job. I mean, it was a whole three days since Deborah was gone. We certainly don’t want Gavello to be confused with the Podiatrist Councilman. Never mind that, among the various websites of city councilmembers, hers was the most accurate and up-to-date, making sure her constituents were kept informed was a hallmark of her tenure. Much of the information she placed up there was in direct conflict with the so-called transparency page the city public information officer kept on the city website. And, she was a master of demonstrating the idiocy of the city council in video clips that can still be found on YouTube.
“I can see calling me after a month, if it hadn’t been taken down. But three days? I asked my webmaster to remove the information the day after I left office”, said Gavello in an email interview. Since then, her entire website has been replaced with one big “thank you” to her constituents.
So, did Kendig do his job or was he just harrassing his former boss?
Perhaps, if we look at Councilman John Nielsen’s website, we can get an answer:
I am proud to be your Mayor this year, and am gratified and encouraged by the support I have already received in my campaign including friends, and neighbors I have worked with through the many years of my family’s involvement in our community, including, Tustin Dolphins, Tustin PONY League, Tustin Eastern Little League, NJB, AYSO Soccer, SoCal Waterpolo and numerous sports, events and activities for our local public schools, where my children graduated from Tustin High.
Yes, right on the home page of his website, he bills himself as Mayor of Tustin, even though it has been over a week since Councilmember Al Murray was elected to be mayor. So, where was the email to Nielsen for illegally calling himself “Mayor” when he left the position? Well, it is not the first time Nielsen has told an untruth. We doubt it will be the last.
What the entire episode demonstrates is that the inept lawyer Kendig will continue to be the pandering lapdog for what we expect will be an equally inept city council. We could hope for nothing less in the coming year.
As a closer, Gavello also explained that she had asked her fellow councilmembers to go out to bid on the city attorney services rather than continue the no-bid contract ad infinitum. “but Beckie [Gomez] wouldn’t help me on going out to bid on this”.
Did you really expect her to?
