Whistleblower protection policy, code of conduct add to city's ethics ordinance

The City Council’s adoption of a whistleblower protection policy and code of conduct for elected and appointed officials merits accolades from reform-minded residents, especially the 22,415 who voted “yes” on the ethics ordinance in last November’s balloting.

The ordinance, approved by 85.1 percent of voters, the largest margin on any of the 14 measures ever submitted to the city’s voters, required council to adopt a conduct code and procedures to protect city employees who report “improper governmental action.”

The conduct code, listing eight key principles and specific conduct areas, two levels of informal sanctions and, with an “investigative process,” two levels of formal sanctions, was adopted by resolution on a 5-0 vote and took effect Jan. 4.

The whistleblower policy, outlining a procedure for city employees to report alleged improper actions and a five-step process to seek relief against retaliatory action, was adopted by ordinance on a 5-0 vote and is effective Feb. 17.

However, unlike the voter-approved ethics ordinance that can only be modified or discarded in a public vote, the current or future councils can change or drop either the conduct code or whistleblower policy or both on a majority vote.

An interesting aspect of the code of conduct, especially since council members so often have been sharply divided by political and personal differences during the city’s 43-year history, is a lengthy section dealing with “complaint handling procedures and sanctions.”

The least severe sanction is an “admonishment,” which reminds an official that a specific behavior violates local, state or federal law “or city policy” and could result in “sanction” or “censure” and can be imposed by a majority vote “prior to any findings of fact….”

The next level is a “sanction,” which requires that an accused official receive a notice of the allegation with the opportunity to provide a written response before council takes action. “Admonishment” and “sanction” are not considered punishment or discipline.

“Censure,” the most severe action council can take, is considered punitive and “serves as a penalty imposed for wrongdoing,” even though a “censure” involves “no fine or suspension of the rights of an official” if the accused is elected rather than appointed.

“Censure” can be imposed after a written complaint has been filed with the city manager, an investigation is conducted by an “appropriate” authority and findings are presented to council, with a written response by the accused. Council can impose “admonishment,” if after the investigation, a council majority decides a violation doesn’t deserve “censure.”

With all of the accusations leveled during this city’s super-heated election campaigns, the conduct policy might get a vigorous workout every two years. Just imagine the variety of sanction motions that might have been introduced during the fierce John Gullixson-Hank Wedaa warfare of the 1990s and, more recently, the John Anderson-Jan Horton quarrels.

More reform is needed, especially for transparency, but council members are unlikely to tackle further improvements. Increases in council compensation, for example, should be voted on separately, not bundled with routine items for one vote in a “consent calendar.”

Reader reaction peaks on certain city topics; city sees filing for unusual claim for damages

For the past year or two, reader reaction to my column has jumped whenever I’ve written about the City Council’s response to the state’s low-cost housing mandate, finances at the city-owned Black Gold Golf Club and the long-sought, recently adopted ethics ordinance.

And lately, my mention of a 13.4 percent increase in a fringe benefit package the council members voted for themselves has drawn e-mails, all negative. The hike passed 5-0 Aug. 17; a motion to rescind, with Jan Horton and Jim Winder favoring repeal, failed Nov. 2.

My annual “best and not-so-best” year-end review of the local civic scene always brings in more e-mail, and this year’s column, published Dec. 30, generated a larger-than-usual response, with e-mails from two longtime community activists meriting a wider audience.

Regarding the “most tireless Old Town advocate” entry recognizing 41-year Main Street businessman Louie Scull, Mark Abramowitz, a former planning commissioner and water district director, commented, “Thanks for acknowledging Louie’s contribution….”

Abramowitz’s e-mail noted, “He does so much, yet rarely is appreciation of any kind expressed for his hard work. I think he really makes a difference in this community.”

Veterans advocate Sue Fenwick added Main Street businessman Mike Ruocco to the category, noting that he’s “volunteered thousands of hours and…personally donated major funding over the past 21 years” for community events “he has founded and/or coordinated,” such as the annual holiday season gala and Saturday Farmer’s Market.

“His service is truly remarkable. That is why I nominated him for Citizen of the Year before I knew that he lives in a neighboring city….I respectfully suggest that the City Council give him a special commendation as a long overdue honor,” Fenwick stated.

My “best and not-so best” review also should add another category: “most unusual claim for damages filed against the city.” I might also consider the strange claim for my end-of-the decade roundup in 2020.

The claim, which was denied by council members at a November meeting, was filed by an Aliso Viejo law firm in October for a Placentia resident regarding an alleged fight in April at Tuffree Middle School, which is located in Placentia.

A four-page filing alleged the claimant “was bullied, harassed and stolen from by another student at the school. Complaints were made to the princip[al] and officials at the school of the behavior and incidents, yet nothing was done.”

The claim further alleged the incidents resulted in a fight during school hours during which the claimant “suffered broken fingers on her left hand as well as possible fracture to the wrist or forearm” with unknown damages “believed to be in excess [of] $10,000.”

Nowhere is Yorba Linda mentioned in the claim, other than in a section listing “entities causing the injuries.” Perhaps this city’s hefty cash reserve gives off a deep-pocket aura.

In a report to council members, Mark Aalders, assistant to the city manager, commented, “The city cannot be held liable for this claim.”

Claimant has six months from the date of the letter denying the claim to file a lawsuit, with the statue of limitations expiring if no action is taken during that period, Aalders noted.

How independent can city commissioners be?

There’s a larger issue lurking behind the dismissal of longtime community activist Mark Abramowitz from the Planning Commission position he’s held the past three years: just how independent can commissioners be from the council members who appoint them?

Certainly, the elected council has the right to pink slip any of the 20 commissioners who they name to serve on the four advisory bodies that deal with matters related to planning, parks and recreation, traffic and the public library.

And commissioners with viewpoints different from the council members who selected them have, on occasion, landed in hot water, starting with George Machado, who often ruffled council feathers after his appointment to the first Planning Commission in 1968.

Machado, chief architect of the city’s 1972 voter-approved low-density General Plan, led a slate of slow-growth candidates that in 1970 took majority control of the council, which shaped this city’s annexations and semi-rural development for the next decade.

Only a few of the 91 individuals who’ve served as commissioners have been booted mid-term, although some resigned or departed quietly when their terms expired, after they had incurred the wrath of their council bosses.

Abramowitz thinks his dismissal resulted from his opposition to Measure Z last year. Voter approval of Z, which lost by 197 votes out of 26,491 cast, would have allowed council to rezone 3.2 acres of Savi Ranch land for high-density, low cost housing units.

He expressed his disagreement, largely on environmental grounds, in a letter to the editor that was published on the Yorba Linda Star’s website a few days before the Nov. 2 ballot.

In addition to stating concerns about the health of potential apartment dwellers and council transparency, Abramowitz noted, “By writing this, I am sure to upset some that have appointed me, so this may cost me my appointment.”

On Dec. 7, council placed the Abramowitz dismissal on the Dec. 21 agenda, with the firing--“without cause”--accomplished 4-1; just newly seated Tom Lindsey dissented.

Councilman John Anderson, who supported Z with the other council members, said his decision was based “on a complete review of Mr. Abramowitz’s votes and rationale on the Planning Commission” and activity at a cell site, according to meeting minutes.

Only Anderson explained his vote at the meeting, but in an e-mail, Councilman Mark Schwing noted commissioners “serve at the pleasure of the City Council and are to carry out the duties of their office as set [forth] in the city code and the policies of the council.”

Schwing added, “Mr. Abramowitz was setting forth his own agenda and policy that was at cross purposes of those of the City Council,” and his letter to the Star in opposition to Z “was not the reason he was removed from his position.”

Abramowitz, an environmental consultant who is president of his own company, Community Environmental Services, told me council members hadn’t expressed concerns to him about his commission votes, only his opposition to Z.

Commissioners need the council’s confidence to perform effectively, but independent thinking shouldn’t disqualify individuals from commission service; and commission decisions shouldn’t be threatened by a follow-council-wishes-or-be-fired philosophy.

City Council could make progress in 2011

Will the City Council make actual progress on key issues in 2011, including Old Town redevelopment, state-mandated low-cost housing requirements and revenue problems at the city-owned Black Gold Golf Course?

Based on past experience, the council’s level of achievement will depend on the personal and professional relationships developed among the five members. They don’t have to be Facebook friends, but last year’s relentless squabbling clearly affected city business.

Personal and political differences separated council members and hampered progress on many issues, as exchanges between John Anderson and Jan Horton rivaled bitter battles from past years, including the fierce John Gullixson-Hank Wedaa warfare of the 1990s.

Tellingly, tradition was waived when City Manager Steve Rudometkin presented Horton with a plaque when she left the dais after her failed re-election drive. Usually, such tasks are handled by the mayor (Anderson at the time).

Predictable 5-0 votes on contentious issues also are dangerous, as proven by a past council’s Town Center votes, with details hashed out in closed-door meetings involving council members, top city staff and developers with an exclusive negotiating agreement.

The optimal situation would be five council members acting independently as they make decisions, while respecting the opinions of their colleagues, and refraining from labeling as “lies” and “misrepresentations” the beliefs and judgments of others.

And they should act in a transparent manner and not hide important votes in the “consent calendar.” The increase in council member compensation, for example, should have been the subject of an advertised public hearing, especially with lower tax revenues expected.

One fear expressed by the Horton faction during the election was that the city would be run by a four-member “super-majority” if Tom Lindsey and Anderson won, even though similar alarms weren’t sounded when Anderson was the minority in 4-1 votes in 2007-08.

Again, past experience from the city’s 43-year incorporated history provides a different slant. Council member alliances shift--often--and they shift again, as issues change and new challenges emerge, and council members switch from electioneering to governing.

The new council’s first month showed some interesting vote alignments. Nancy Rikel, selected mayor on a 5-0 vote, had one of her first decisions overturned with a 4-1 vote.

The mayor names council members as city reps on 15 city, county and regional bodies, with the appointments approved by council. Rikel proposed dumping Jim Winder from his seat on the county’s Vector Control board due to “a 79 percent attendance record.”

Rikel’s decision to replace Winder with Lindsey was opposed by Anderson, who moved to reappoint Winder to a seat he’s held for 10 years, with Lindsey voting with Anderson.

And the removal of Mark Abramowitz from his three-year seat on the city Planning Commission also carried 4-1, with newcomer Lindsey on the lonely end of the vote.

While Winder remains the only opponent to transferring eastside’s sewers to the Yorba Linda Water District, don’t expect all future votes to follow a similar 4-1 pattern.

More respect, less bickering and independent thinking might result in real progress in 2011.