KALASHO THREATENS LAWSUIT OVER EL CAJON’S PROPOSAL TO LIMIT NUMBER OF ITEMS A COUNCIL MEMBER CAN ADD TO AGENDA

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By Miriam Raftery

View video:  This agenda item can be viewed from 1:06:16 through 1:57:45

March 17, 2017 (El Cajon) – El Cajon’s City Council spent a full hour Tuesday debating a proposal by Mayor Bill Wells that aims to save Council time and staff resources by limiting how many items a Council member could place on an agenda single-handedly to just one per quarter, a maximum of four a year.  To bring forth any additional item, a Council member would have to gain support of one additional member. 

But that raises potential Brown Act violations andconcerns over suppressing citizen’s representation, the American CIvil Liberties Union (ACLU) warns in a letter sent to the City's attorney, Mayor and  Council members..

Newly elected Councilman Ben Kalasho strenuously objected to the proposal, leading to a testy exchange in which he threatened to sue Wells and fellow Council members to protect what he views as his right to represent his constituents.  Several members of the public also spoke out,  all opposed to sttifling their representatives’ ability to put items of concern on the agenda.

Mayor Wells introduced item 6.4 on the March 14 agenda, noting that the number of proposed agenda items has skyrocketed from recent years when only around a half dozen items were placed on the agenda by Council members.  “We have to prioritize what we want to do,” he said.

At a February meeting,  Wells initially proposed requiring that every agenda item have backing of two council members. The new proposal is a compromise that allows one item per quarter to be added unilaterally.  He contends that going from 6  or 7 items a year to up to 20 is “opening it wide up, but placing some restrictions” to avoid “willy nilly” overburdening staff.

But Kalasho responded, “It’s not a bad thing that there are people bringing in things  to put on the agenda. You act like it’s the plague.  It’s a good thing.”  He confirmed that he has “62 things I wanted to bring to the agenda this year.”

As for the issue of staff time, Kalasho said that City Manager Doug Williford does a good job vetting proposals in weekly meetings and advising Kalasho whether an idea is viable or not.  “Our job is to put things on the agenda,” Kalasho affirmed. He added that it’s  wrong  for the Mayor to contend he’s not limiting anything when the number of items any councilmember can ask to put on the agenda would go from “unlimited to four” per year.

Kalasho revealed that the American Civil Liberties Union (ACLU) has sent a letter urging the city not to adopt the proposal. 

The ACLU letter, signed by Bardis Vakili, states, “While the need to prioritize the city’s limited resources is understandable, the proposed policy, if it would successfully address that need at all, threatens to do so in violation of law and at the expense of the democratic process. Issues of prioritization can be addressed without entirely stifling political dialogue. The ACLU of San Diego and Imperial Counties encourages the City to reject the proposed policy.”

The only Democrat on the Council that has long been dominated by republicans, Kalasho defended items he’s brought to the agenda since his elections on homelessness and helping seniors (neither of which were adopted) as not “willy nilly” adding, “When I have my town halls and see an audience of dozens and dozens of people, and say `The Council capped me on what I can help you on, check back next quarter,’ that’s just ridiculous.”

He added that elected officials have “First Amendment rights” and cited two legal cases (Miller v. Town of Hull and Carter v. Commission on Judicial Appointments) which he said established legal rights for Council members to sue other officials who violate their rights and seek punitive damages.  “If you decide to adopt this, you will be individually named on a claim,” he added. “You would not be sheltered under any tort claims….”

Mayor Wells asked, “Are you threatening to sue me?”

Kalasho said the Mayor was out of order under Council policy and procedures for interrupting him.

“I’m the Mayor. I’m not out of order. I put up with so much from you,” Wells told Kalasho.

Kalasho advised Council to read up on the cases he cited. “This has already been tried in court…You would be responsible for punitive damages,” he said. “I plead with you to not consider this…There is nothing more I want than a cohesive council,” but he added that he also has to be aware of possible Brown Act violations.

The Brown Act prohibits conservations with more than two members of any board on a matter to be brought before the public. So if a member were to ask another member for support to put something on the agenda, and that person said no, asking a second member could potentially be a Brown Act violation.

Councilman Steve Goble said there are other options.  For instance, some cities allow the mayor to set the agenda , not council members.

“Absolutely not,” Kalasho said.

Members of the public then voiced their views—all in support of Kalasho.

Barry Bardack mentioned potential Brown Act violations, then added, “You’re responsible to the residents of El Cajon and doing their work. Any issues that need to e discussed shouldn’t be blocked from the Council…on the other hand, having been chair of the Gillespie Development Council,” he noted he understands that  a meeting “can’t run all night.” He voiced confidence in the city manager to offer advice to council members on which proposed times “will fly and won’t fly” adding that he wants to see it left up to the  city manager to find a way to prevent agendas from getting out of hand while assuring that constituents’ concerns are heard.

“Especially once you go to district elections,” he said of redistricting in process, “you shouldn’t have to get permission from another person” to put something on the agenda.

Sandra Yeaman voiced outrage over the proposal. “The idea of change is often scary, but one thing it did in this case is to bring me to the Council meeting.”  She noted that right now, “I feel I have five representatives” but that after moving to district elections, she is concerned that someone with an issue in their district might have trouble getting another councilmember to agree it should be agendized.  “I would prefer that we take big changes one at a time,” she said, adding, “I’m also not surprised that a new Council member might have a lot of ideas…They usually have enthusiasm and support of neighborhoods.”

Councilman Bob McClellan said in his many years on the Council, instead of putting something on the agenda he has often encouraged people to come speak in public comments when Council members and staff could hear the issue. “It’s worked very well in the past,” he said.

Councilman Gary Kendrick noted that when he moved to Fletcher Hllls before joining the Council, he followed exactly that procedure to get a traffic issue on the agenda which resulted in speed bumps being put in. He added that he believes “we all really care about our city” and he didn’t think any member would ignore a problem in another district.  He added, “The mayor does represent everyone. Everyone gets to vote for mayor.

Kendrick noted that it takes three votes for Council to pass anything,  so if a member can’t get a second member to support an item, it would be unlikely to pass even if on the agenda.  His logic failed to address, however, the fact that asking a third, fourth or fifth person on the council to support putting something on the agenda would violate the Brown Act, giving a member essentially only one shot to try and persuade another member to help put something on the agenda.

But Kendrick also raised a valid concern. “What would happen if staff had 62 agenda items over the next year” from just one council member.

The City Manager said that would depend on complexity but added if too many required staff time, he would ask for prioritization.  Addressing 62 items would likely be “impossible” he concurred.

Kendrick noted that the city has “big things” in the works including reopening the East County Performign Arts Center, bringing new car dealers to town and more. “We have to prioritize things.”

Kalasho said it’s unreasonable to suggest that a concerned resident show up at a 3  p.m. Council meeting to get something on the agenda, noting that many people work or have to  pick up kids at school.  He also voiced concerns that members would be inherently biased towards interests of their districts after district elections are in place, and that they might not fully understand a proposed agenda item.“ We want to protect civil liberties” and rights of each resident, he said.  

Elaine Briggs, a 28-year resident of El Cajon, criticized Wells’ proposal as “back room politics where my opinion is discounted even before it’s heard.”  She noted that at a February 21 Council hearing, Mayor Wells justified his proposal by noting that La Mesa  had considered a similar policy to restrict agenda items. “Did La Mesa ever adopt this policy?” she asked.

Wells admitted, “No, it wasn’t adopted.”

La Mesa Councilman Bill Baber, who introduced the measure there, says La Mesa's Council decided to stick with voluntary action for now.  Baber, who previously spent five years preparing dockets for San Diego's Mayor, told ECM he still thinks a two-signature rule is a good idea, "I believe my two signatures policy strikes the balance. People need feedback. Writers need editors. Friends need friends. Four eyes are better than two. That's why people with spouses/significant others have more humility than singles! Just ask my wife !"  He added that  La Mesa's Council considers only a handful of Councilmember -initiated items each year.

Briggs said that what may be of concern in one district might not be important to others, but that allowing each representative to bring forward issues for consideration by Council is “core to democracy.”  She urged Council to reject the proposal and “allow government transparency.”

Bonnie Price, a political scientist and officer in the East County Democratic Club, said El Cajon has a  weak mayor form of government that does not allow what amounts to a “veto.” She called the proposed measure a “gag order” that she wants to have legal counsel examine.  She felt the measure would restrict members, particularly after district elections, from adequately representing their districts.  “We’ve seen enough authoritarianism lately,” she said, urging Council to respect democracy.

Marie Nelson, a city resident since 1959, stated, “I  have voted for many of you.  I voted for your experience, for your ideas, for you to use my money wisely to represent me and the diverse community that we have.  She said she firmly believes the proposal is “against freedom,” adding, “ I thnk you need to listen to your constituents… I don’t want to you to stop any ideas. It’s not your job. I voted for you to listen to the people.”

Wells insisted that there is a need to prioritize proposals.

Kalasho asked  City Manager Doug Williford, “Have I ever put anything on the agenda that you advised me was not a good idea?”

Williford said he and staff have sometimes provided information that changed the mind of a council member but that ultimately, it’s the member’s decision whether or not to move forward with a proposed agenda item.

Kalasho pressed, “Have I listened?”

Williford replied, “Yes, but not every time.”

Nelson chimed in, “This to me smacks of politics and I think it’s offensive. He can do a good job. You can do a good job. But I think you need to hear the people and what they want.” Then she told Wells, “Thank you for arousing the sleeping ancient ones who didn’t care before, but I care now, because I’m watching you.”

Stephanie Harper, a Democrat who ran for Council last election, said government has moved at a snail’s pace. She applauded Kalasho on his efforts, stating, “This is a first to actually have people up there who are listening to us,” adding that she’s asked many times to have items added to the agenda in public meetings but that they were never agendized.  “It isn’t going to happen unless we have someone up there listening to us…This is a total attack on Councilman Kalasho because we finally have a voice.”

She added that when it comes to district elections, “you will be putting a muzzle on our voices, and that’s just not right…I find it appalling that this was ever brought up.”

Lemon Grove Council member Jennifer Mendoza said her Council has no written policy for putting items on the agenda.  But when she was first elected in 2014, she wanted to put an item on the agenda about a recreation council and was advised that the informal procedure was to contact another council member to bring the item together jointly.  Having just attended a meeting on how to avoid Brown Act violations, she recalls, “I was kind of alarmed” so instead got members of the public to come in and speak to get it on the agenda.  She criticized this as a “convoluted process” adding, “Now we want to have a written policy and procedure, and we want to go with allowing one Councilmember to bring something forward.”  She said Lemon Grove’ s Council also regularly meetings with the city manager and gets advice. She urged El Cajon’s Council to not stifle members from bringing items forward for the community.

Councilman McClellan noted that El Cajon’s Council sometimes meets at  7 p.m. and if that if someone can’t come at 3 or 7 p.m., they can submit a written communication.  He added, “It is not too difficult to arrange to get here” for one of those times.

A man in the audience took issue with that assumption. “Due to lost wages, it cost me $150 to come here today,” he said.

After the public hearing, Council members discussed the proposal.

Councilman  Steve Goble observed that government can’t be run like a business, though some business principals can apply. “In the public sector, it’s the public’s money so we move much slower, with more consideration. Efficiency is not necessarily a goal of government in exchange for transparency.”

He noted that Council sets priorities annually for the city and staff with an annual budget to reflect the direction in which the city should go.   He agreed that 62 agenda item requests from one council member could “absolutely”  get staff off track, adding, “It’s our responsibility as leaders to vet these requests” before staff is asked to take on significant work, determining  whether new ideas or existing goals should be the priorities.

” I don’t think we should limit the number of items that can be brought forward for an agenda,” he made clear, adding that this could silence voices in a particular district.

Goble proposed a compromise solution:  hold budget workshops twice a year to look at all proposed agenda items not already in the annual budget that Council members and anyone else wants to bring in, “batching them so up people can be heard…items that may have social value can be heard.” He added that time-sensitive matters or emergencies would be handled separately. 

Kalasho said thinks efficiency and transparency can both be achieved, adding that it only takes minutes for the city manager to respond to an email with a quick assessment on whether something is a good idea or not. He challenged anyone to name an item he’s proposed that took up large amounts of staff time.  “From a management perspective, it’s more efficient to pace yourselves through the year,” he contended, adding that some ideas can morph over time. He said he doubted a speed bump issue would take much time, to which Kendrick responded, “It was a two year process with dozens of meetings.”

Kendrick stated, “I like Councilmember Goble’s alternative…It doesn’t mean I’ll vote for any of these. I may decide to keep things as they are.” He said he wants staff to look at all the proposals and provide a few alternatives to “not bog down the city” and prioritize items.

Mayor Wells stated that since he became Mayor, “I think this has been one of the most active city councils in our region.”  The city has become a charter city, got rid of red light cameras, brught in a Mercedes dealer and two new hotels, and passed an alcohol ordinance to reduce public drunkenness and crime, among other things, he noted.  But he added, “I dion’t see us getting too much done in 2017.  I think we have a problem. I think we need a solution.”  He asked  Council members to vote yes on his proposal so staff could look at legal ramifications and bring back recommendations.

Kalasho objected. “You owe it to the people to be honest when you describe the city of El Cajon in its entirety,” he stated. “True, we have a lot of good things that have happened,” citing the car dealer and new hotels. But he added, “That’s only because we were lacking…We have 28% of the people below the poverty line. Our sales tax is one of the highest in the county. People in Fletcher Hills are shopping in Santee because they feel it’s cleaner and safer and they have a lower sales tax. We did a poll on Next Door that proved that point…We’re doing a lot of things right, but we can get better.”

Kendrick blamed the  city’s high poverty rate on its housing stock.  “People that don’t make a whole lot of money live in low-income apartments, thus you have a high poverty rate.” 

Councilman Kendrick accurately noted that the city’s half-cent sales tax funds are “crucial to this city’s safety” by funding police and fire departments. He added that while some people may shop in Santee, overall  El Cajon is a “net sales tax importer” base on studies done.

Wells called for a vote on his motion to send the proposal to staff to bring back alternatives for the Council to consider in the future.

The motion passed by a four to one vote, with Kalasho voting no.

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