EDITORIAL - I was disappointed after reading the Madera County Grand Jury (MCGJ) Final Report (1819-04) - The City of Madera: Veiled Transparency 2018-2019 published on June 28, 2019. First, let me state that the task of the MCGJ is an ominous one and the job, especially in this case, was a major undertaking. I certainly appreciate the time, volunteerism and hard work members dedicated to this endeavor. I have known some of these individuals since childhood and I appreciate them as dedicated citizens and good, honest neighbors. Therefore, it is with regret that I find myself criticizing the final report.
Let me be clear, the City of Madera’s interim leadership apparently delaying and/or stone-walling the MCGJ on requested documents is not acceptable. Nor does it shine a positive light on the City that it does not have an established, written Code of Ethics for Council Members, Commissioners, and Management staff. Finally, it appears that in the past the City has been inconsistent in applying its own guidelines concerning conflicts of interests and elected officials engaging in commerce with the City.
However, the Report is riddled with petty and I believe unsubstantiated complaints of citizens being intimated and lack of transparency regarding the conducting of Council agendas and meetings. More importantly, the MCGJ, by excessively focusing on these questionable and sometimes resentful complaints from citizens with axes to grind, ignores larger problems facing Madera. The MCGJ appears to be experiencing cognitive dissonance as it failed to go beyond preconceived notions of corruption. Furthermore, the Report claims “Malfeasance” on the part of the City. That is a major, damning accusation considering the evidence presented.
It is important to understand the term Malfeasance. It is intentional conduct that is wrongful or unlawful, especially by officials or public employees. Malfeasance is at a higher level of wrongdoing than nonfeasance (failure to act where there was a duty to act) or misfeasance (conduct that is lawful but inappropriate). I believe that a closer review of the facts will determine that the City is blameworthy of both nonfeasance and misfeasance. But not Malfeasance! Furthermore, that the MCGJ completely ignored major acts or non-acts of misfeasance and nonfeasance that were placed before them.
The MCGJ conducted an incomplete and insufficient review. I believe it did so because it was distracted by citizen criticism from those who complained the loudest. Many who had personal grudges against Council Members and City Administration and others who simply do not want the City to address its “failure to act where there was a duty to act”. This nonfeasance and/or misfeasance has been the City’s nearly 30-year failure to properly address the need for fair and reasonable Development Impact Fees (DIF) on new development (principally residential) resulting in inadequate funding for our water/sewer systems, parks, streets, bridges, etc. This is institutional neglect in extreme form. Let us not ignore that the original protests were directed at the exorbitantly high water rates. Both more recent and past City Council own this!
Because of my professional experience and my previous research and publicly presented report on this matter (City Council – April 2018), I am expertly familiar with the issues of nonfeasance addressed below.
Following is one of my major findings as previously reported to City Council:
Finding #6 of 13, pages 12/13: The conclusion is that there is overwhelming information that indicates for possibly three decades City Customer Water Rates have subsidized new growth. Plainly Stated: The lack of properly adjusting Development Impact Fees (DIF) to pay for necessary capital improvements (wells, etc.) necessitated the more recent customer rate increases to pay for backlogged capital improvement needs.
Additionally, related to the relationship between management compensation with Water Rates the following was reported
Finding #5: THIS FINDING IS NOT MEANT TO IMPLY THAT MADERA’S SYSTEM OF ALLOCATING COSTS IS COMPLETELY ACCURATE OR THAT MANAGEMENT SALARIES & COMPENSATION SHOULD NOT BE EXAMINED. THAT EXAMINATION IS UNDER REVIEW (MANAGEMENT COMPENSATION STUDY REPORTED AT THE MARCH 21ST COUNCIL MEETING).
My major problems with the recently issued MCGJ City of Madera Report are as follows:
I testified before this Grand Jury for approximately 90 minutes. I explained that the primary concerns related to Water Rates were as I publicly reported (see above). I also mentioned my concern with the Interim Administration and City Attorney placing items on the consent calendar when they, more appropriately, should be on the discussion calendar for individual consideration. I also reported that some issues related to Closed Session review of employee compensation and labor relations were mislabeled and sometimes not suitable and/or premature for the closed session. I offered to return to the MCGJ and “step by step” walk them through this information. The Grand Jury neither followed-up on this offer nor addressed these concerns in their Report.
Furthermore, not all seven (7) Council Members who were in office at the beginning of this inquiry were called upon to testify by the MCGJ. My regrettable conclusion is that the MCGJ was captivated by the discussion of corruption and gave too much credence to a small, select few complainants. Credit is due to those who initially exposed the outlandish wage/benefit compensations given to the City agencies’ top management. But it is puzzling that the corruption mantra persisted when all concerned were aware that the seeds of these exorbitant practices were planted, approved (legally if not ethically), and continued by previous Councils from 5, 10 and 15 years ago! More recent City Councils share the blame by not recognizing these excessive compensation packages and were slow to own up to it.
It is not that the stated findings of the Grand Jury are not important. They are troublesome. However, to paraphrase Martin Luther King: “They maximized the minimum and minimized the maximum”.
Below are the MCGJ Findings and my responses in Bold Print.
F1. The City of Madera does not have a written code of ethics for senior officials or elected members. Guilty - Fix it Now!
F2. The senior officials and elected members do not have adequate follow-up training on ethics. This appears to be a problem, especially with documentation. Fix it and document it.
F3. The general public does not know how to access the City Council meeting agenda and comment on agenda items including the consent calendar. Did the MCGJ poll the many parties that appear before the Council? Agendas are posted online and easy to access. I found City Staff reports, if sometimes a little long, well written and clear. Council meetings are live-streamed and available online. This appears to be the complaint of a cliquey few who desired that each Council meeting be an open debate with non-elected individuals.
F4. Speakers during Public Comment at City Council meetings are intimidated by the requirement to provide their personal address. Intimidated, Really? Did these folks receive anonymous phone calls and experience police following them home? This embellished, ludicrous finding diminishes other important concerns of the MCGJ.
F5. The Agendas for the City Council Meetings are difficult for the general public to understand. I have found our elected officials and City staff accessible and open to questions. The meeting agenda reports are usually well written and self-explanatory. However, MCGJ again missed the most glaring agenda problems. Consent Calendar Agenda items, as well as Closed Session items occasionally, should have been on the open calendar agenda.
F6. The City Council of Madera did not provide the MCGJ with requested documentation in a timely and orderly manner. This is problematic on both sides of the equation. During the MCGJ investigation, the City experienced turnover in seven (7) top management positions, including the entire senior management who would have been responsible for retrieving the demanded documents. In addition, the MCGJ made some prodigious and onerous requests. For example: requesting several years of ALL purchase orders and bid documents which would have required the submission of thousands of copies. A smarter approach would have been to target vendors and officials who were suspected of conducting business with City and requesting such documentation. It appears that both the City and the MCGJ could both have been more professional and practical.
F7. City administration violated the MCGJ’s admonition of secrecy. Possibly so, but it needs to be proven, not simply assumed. It appears that several of the citizen complainers testifying before the MCGJ also may have violated this order.
F8. The City of Madera does not follow its Purchasing-Central Supply Mission Statement regarding conflicts of interest. This is, of course along with item #F9, the most condemning charge. These two charges are certainly aimed at Mayor Andrew “Andy” Medellin. Medellin is the owner of “Andy’s Sports & Design” in Madera. A long-time small, local retailer that specializes in graphic design for logos, caps tee-shirts, etc. . Both as Mayor and Councilmember Mr. Medellin has engaged in sales to the City for promotional events, celebrations, etc. . (SEE BELOW)
F9. City administrators and elected officials are doing personal business with the City as private individuals. (SEE ABOVE & BELOW)
F10. The City of Madera shows a lack of transparency towards residents of the City of Madera and the Madera County Grand Jury. Again, it is not that the MCGJ Report is completely wrong. Such reviews often focus on needed improvements and poor administrative and fiscal practices to hopefully exposes an area for betterment. However, lack of “best practices” does not always mean corruption. Unfortunately, the Report comes up short as MCGJ possessed information regarding abysmal management practices (lack of appropriate Development Impact Fees (DIF) for necessary capital improvements) and choose instead to focus on bombastic accusations while failing to address long-standing, structural problems which continue and have resulted in deteriorating city infrastructure and dramatically increased water rates.
Findings 8 & 9 are most likely the most unsettling “Findings” of the Report. This is significant because it neatly fits into the theme of “corruption” originally staged and mapped out by the loudest City Hall critics. Unfortunately, the MCGJ listened to the loud drum-beat and failed to follow the complicated score of the musical. This matters because the MCGJ seems to have taken the easy route, uncritically accepting the raucous voices and idle shouts of “Corruption” etc. targeting Mayor Medellin in a manner that implies malfeasance. To support this conclusion MCGJ quotes sections California Government Code (CGC) section 1090, which states in part:
City officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.
Then it makes the following statement:
Some elected officials are doing business with the City as private citizens, which raises the question of a conflict of interest. The MCGJ referred to the statutory and common law to understand the circumstances surrounding the City’s management.
However, the MCGJ disbelievingly fails to include the following “exception” in Calif. Government Code Section 1091(b)(8)
Section 1091(b)(8) provides that an official has a remote interest in a contract entered into by the body or board of which they are a member if he or she is a “supplier of goods or services when those goods or services have been supplied to the contracting party by the officer for at least five years prior to his or her election or appointment to office.” Thus, a councilmember would have a financial interest in a contract entered into by the city council if he or she provides services to the party contracting with the city, but only a remote interest if those services were provided for at least five years prior to the election to the City Council.
Yes, as the proprietor of Andy’s Sports Design, Medellin has been doing business with the City well over five (5) years before being appointed to a City Council seat in 2012 and he has continued this business relationship as the elected Mayor. His total annual billings to the City for such services as tee-shirts, caps, etc. rarely exceed a couple of thousand dollars per year. NOTE: City of Madera’s annual budget is over $87.8 million. We constantly ask our local public agencies to purchase locally and, as long as I can remember, the City has done just that and should strive to continue this practice.
The MCGJ seemed to give special credence to parties who funded and promoted a failed recall effort of Mayor Medellin which garnered only 67 signatures. Regardless, he needs to be admonished for not declaring the business relationship or recusing himself from voting on warrant payments to his business on the Consent Calendar. This would have allowed him to abstain from voting and declare a conflict. This is a time consuming but necessary procedure. Also, the former City Attorney was remiss for not informing all parties of this this “Best Practice” approach. Mayor Medellin and the City are not above criticism in this matter. However, this is not Malfeasance, nor nonfeasance or misfeasance. I believe a closer review will find that the expenditures were minor and the transactions, fair and above board. But the Grand Jury report hints at something more sinister which is exceptionally unfair to all parties.
Should this practice be allowed to continue? It is widely recognized in municipal government that Section 1090 has a series of exceptions, but they are unfortunately complex, vaguely written, and often misunderstood. It is fraught with ambiguity and uncertainty. City attorneys and their municipal government clients must be vigilant in trying to ascertain possible financial interest a public official might have in a particular contract and then carefully construe the limited exceptions. The City and former attorney woefully failed in this obligation.
While technically the vote on the warrant register is an only a review of already “paid” bills from vendors rather than an “approval” to pay; it is a method for Council to consider purchases and comment on their appropriateness. A good practice to follow in such matters is: “When in Doubt, Sit It Out”. Regardless of my opinion, the City Council should request a written opinion from the California Fair Political Practices Commission. The FPPC frequently deals with such matters.
In conclusion, the Madera County Grand Jury, while exposing somewhat untidy business practices and encountering a not always cooperative but severely depleted City management staff, to a certain degree failed in its mandate. Going forward it appears that the leadership exhibited by the new City Manager is certainly a breath of fresh air. He deserves, at least for now, the community and certainly the City Council’s support as he navigates the City through the difficult seas of municipal government.
