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Just Answer the Question



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.


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.

Add Harrassment to the City Attorney’s List of Skills

tustin lawyersLike 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 <> wrote:

Good morning, Deborah,
It has been brought to my attention that your website ( 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?

The City Chimes In On Bernstein’s Campaign Law Violation

Allan Bernstein, ScofflawWe wrote last week about the apparent campaign law violation of Tustin City Council Candidate, Allan Bernstein. Bernstein, who has no previous civic experience, has been flouting a photo of himself sitting on the dais in the city council chambers under the City of Tustin Official Seal. This is a violation of campaign law and a complaint has been filed with the Orange County District Attorney’s Office. Unfortunately, the sole phone call I received from the DA’s office was from the wrong person. She did advise me that the investigations unit would be in touch. Pardon us if we don’t hold our breath.

We are not the only ones that have noted this egregious violation of the law. The Liberal OC recently wrote an article titled, “Is Tustin Council Candidate a Deceiving “Wannabe” — Yes“. The title of the article says it all. But, Dan Chmielewski goes on to bring up the issue of who gave Bernstein access to the dais in the first place. In our request for information to the city, the City Clerk’s office states they have no policy on who can access or sit on the dais. Really? So, I can just walk up to the front of the council chamber, daughter in tow, and have her snap pictures of me as I mug for the camera like a councilman? Hardly. There are reasons the Chief of Police, Scott Jordan, and several of Tustin’s finest attend the city council meetings. I suspect one of them is to chase people out of areas they don’t belong.

Yet, Bernstein had his photo taken like an invited guest. Whose guest? Do I really need to state the obvious?

Now it looks as if the city attorney has chimed in with an opinion of his own. In response to a complaint filed with the city clerk’s office, the city attorney issued the following statement:

It appears that the City Seal, or portions of the seal, appear in some election campaign materials.  The Tustin City Code prohibits the use of the City Logo, or any facsimile thereof, for purposes of supporting or opposing one’s election to City Council or other public office.  (It should be noted that the City Seal was also designated as a City Logo in Ordinance No. 1312.)
Tustin City Code section 1245 provides in its entirety as follows:
“No person shall use the city logo, or any facsimile thereof, for purposes of supporting or opposing the nomination or election to any city or other public office of himself or herself or any other person, or for purposes of supporting or opposing any ballot measure, nor include such city logo on any writing distributed for purposes of influencing the action of the electorate, or any part thereof, in any election. This section shall not be applicable to writings issued by the City of Tustin or the City Council as a whole pursuant to law.”
The candidates should also be aware that use of a reproduction of a city seal in campaign literature or mass mailings can, if it is shown that it was used with intent to deceive the voters, violate the state Elections Code as well. (See Elections Code section 18304.)  I am not suggesting that any past reference to the logo has violated that provision Elections Code, but the candidates should be aware of that prohibition as well as they prepare and circulate campaign materials in the future.
For all of these reasons, the candidates should be urged not to use the City Seal or the City Logo in campaign materials.  Please feel free to forward this email to the candidates.  I hope this proves helpful.

David E. Kendig 
City Attorney, City of Tustin

So, the city’s mouthpiece David Kendig agrees with OTT in that the use of the city seal and logo is a no-no on campaign literature. He also states the city seal is now considered a logo by the city, although we are still trying to see where that was read into the current ordinance. In any case, there does not appear to be any penalty for using the seal. Kendig does point out the use of the official seal is a violation of the Elections Code (as we did) and that it is a misdemeanor. He also says that he is not saying prior usage of the seal is not necessarily a violation. Huh? Of course it is, David. Quit pandering to Allan Bernstein and his campaign manager, Jerry Amante.

It is quite unlikely the OCDA will pursue any kind of meaningful investigation. After all, this involves Republicans in Orange County and we are talking about the most corrupt district attorney in the State of California. T-wreck has never prosecuted a campaign law violation that we are aware of.

That said, the City Attorney is, by now, aware of the violations made by the Bernstein campaign. Rather than telling the city clerk to “feel free to forward” the email to candidates, as the official interpreter of law for our city, it would be appropriate for him to issue a letter of warning to Bernstein demanding he remove the photo from his Facebook page where he is actively campaigning, cease using it on campaign literature either digital or print, and refrain from using it in the future. That would send an appropriate message to all parties they should play by the rules.