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Home My WebLink About16 REVIEW OF CORRESPONDENCE BETWEEN MARK ROSEN AND THE CITY ATTORNEYAgenda Item 16 Reviewed: ~ti,_ ~,f AGENDA REPORT City Manager Finance Director N/A MEETING DATE: NOVEMBER 2, 2010 TO: DAVID C. BIGGS, CITY MANAGER FROM: DOUGLAS HOLLAND, CITY ATTORNEY SUBJECT: REVIEW CORRESPONDENCE BETWEEN MARK ROSEN AND THE CITY ATTORNEY REGARDING RECENT COUNCIL ACTIONS REGARDING COMPENSATION AND BENEFITS FOR MEMBERS OF THE CITY COUNCIL SUMMARY: Attached is a copy of a letter from Mark Rosen on behalf of Councilmember Gavello and the response of the City Attorney. Mayor Amante has requested that these items be placed on the Council agenda for review and consideration. This item was continued from the October 19, 2010 meeting. RECOMMENDATION: Provide direction to staff or the City Attorney as the Council deems appropriate. ~~~ Douglas Holland, City Attorney Attachments: Letter of Mark Rosen; Letter of Douglas Holland U`J/L6/LUlU 11:1Y PlfA !lY Go.Iao•ly yu~a,a~ awuua. ~ru---~ _-~- MARK S. $OSEN ATTORNEY AT LAW CIVIC CENTCR PLAZA TOWERS 600 W. SANTA ANA 90ULEVARD SVITE 91• SANTA ANA, CALIFO&NIA 92701 TELEPMON[ I71~T 29C-9919 FAX 171A1 293-li9A0 September 28, 2010 Via First Class Mail and Telefax 714-835-7787 Douglas Holland, Esq. Woodruff Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Re: City of Tustin Dear Mr. Holland: I am writing on behalf of Councilmember Deborah Gavello. Since Councilmember ' Gavello's swearing in as a councilmember in Tustin, the Four male members of the council have led a concerted effort to harass her, belittle her, and bully her. The leaders of this campaign of harassment, Mayor Amante and Councilmember Davert', have apparently infected the staff with this same attitude. When Councilmember Gavello suggested that Treasurer Jeffries had disobeyed council policy (something which is beyond dispute), the male members of the council rallied to his defense. When she suggested that perhaps the public affairs officer, Mrs. Lisa Woolery, might be dispensable during tough economic times, the male members rallied to her defense as weliZ. Even you wrote Councilmember Gavello an email recently suggesting that she should kowtow to the staff, even though the councilmembers have a watchdog function and are the only persons in city government whose job it is to speak for the citizens, not to parrot staff views. One staff member had the audacity to tell Councilmember Gavello she should not speak at the Tustin summer concerts, even though councilmembers in every other city do so, and even though Mayor Amante and Councilmember Davert have done so in Tustin. 1 By way of example, Mayor Amante refuses to address Councilmember Gavello by her title. Frequently he will refer to her as "Debbie", "Ms. Gavello" or "Mrs. Gavello", when he knows she isn't married. When Councilmember Gavello pointed out to Mayor Amante that she should be referenced by her title (as all the other councilmembers are), he responded "So you're not going to speak if I don't call you the right name now?" and continued to refuse to address her by her title. Councilmember Davert regularly ridicules Councilmember Gavello for not carrying her heavy council workbooks, even though she has had three surgeries since being on the council and lifting would be a hardship, and has ridiculed her for using a stool at her seat, even though the city has not accommodated Councilmember Gavello with a proper chair. In addition, introduced her as "Debbie" at last years Concerts in the Park, while all other council members were introduced by title. and correct names. We had hoped that Mayor Amante's behavior would stop once the Republican primary for the Assembly ended, but his boorish behavior has continued. ' Neither Mr. Jeffries' position nor Mrs. Woolery's position had been fulltime until recently. SEP-28-2010 11:04 714 2859840 97i P.002 uaicoiculu ~i.iY a~nv ~~~ ",.....,~.. ..... .... .......... _..---~ --- Douglas Holland, Esq. Woodruff Spradlin & Smart September 28, 2010 Page Two. This would all be something to be addressed in the political sphere, rather than the legal sphere (except those matters that might touch upon ADA or FEHA violations), except that the male members have now crossed the line into illegality. About a month ago, the council voted to reduce the city's contribution for health benefits for councilmembers, effective January 1, 201 l . The council also voted to eliminate all earnings of the members as redevelopment agency members. This is not permissible under state law: Government Code section 36516.5 specifically prevents a city from reducing the remuneration, including benefits, of a Councilmember during that councilmember's term in office. Mayor Amante knows this because this came up as an issue during his tenure on the Orange County Transportation Authority. I was on the OCTA board at the time when this discussion occurred, and your colleague Kcn Smart rendered advice on the matter. The cut in health benefits and compensation is illegal. Even this illegal act did not cause Councilmember Gavello to seek legal recourse. The straw that broke the camel's back was the decision by the council to dock councilmembers' pay for their dinners before council meetings. While a small thing, it is a direct insult to Councilmember Gavello, who has dietary restrictions and is perfectly willing to bring her own meal for the sessions. The council refused to consider this, and further refused to consider changing the menu to accommodate her needs. The refusal to accommodate Ms. Gavello's dietary requirements could raise all kinds of other legal issues, but the one I am focusing on in this letter is that it is illegal to change Ms. Gavello's compensation during her term, even to impose a "food tax" for council meals. The reduction in health benefits, monthly stipend and the food tax are illegal and unless this is immediately rectified I will have to take further action. The monies need to be reimbursed to Councilmember Gavello that have been already been reduced in stipend for several pay periods). Nothing in this letter is intended to waive other rights or claims. The male members of the council seem to operate in a world that predates the passage of discrimination laws, ADA laws, the Unruh Civil Rights Act, and other protective statutes. SEP-28-2010 11:04 714 2859840 97i P.003 ;~ WOODRUFFo SPRADLIN ~- SMART P October 12, 2010 VIA FIRST CLASS MAIL Mark S. Rosen Attorney at Law 600 W. Santa Ana Boulevard, Suite 814 Santa Ana, California 92701 Re: Your Letter of September 28,20.10 Dear Mr. Rosen: DOUGLAS C. HOLLAND DiR6CT DIAL: (7l4) 415-1042 DIRECT FAX: (714) 413-L l42 E-MAiI.: DHOLLAND®WSS•LAW.COM I have received for your letter of September 28, 2010. At the outset I would note that your letter is laden with incomplete, misleading, and inaccurate information and assumptions. I would have hoped that you would have performed a little due diligence before you sent your letter. I will address the "compensation" issue that you describe on the second page of your letter as the focus of your letter. You state that the "male members have now crossed the line into illegality" when the "council voted to reduce" council members' salary. You are correct that the Council voted to reduce councilmember salaries. The Council also voted to eliminate the compensation for the Council to serve as members of the Community Development Commission. The Council also voted to establish certain benefits that had not been previously approved by the City Council, including contribution towards health benefits for council members. The Council performed all of these actions unanimously. Councilwoman Gavello voted in support of each of these ordinances. I also believe that Councilwoman Gavello initially suggested a reduction in compensation during the budget review process earlier this year. Thus, each member of the Council publicly endorsed each of these measures. I will emphasize that at no time did the City Council or any of its members "cross the line into illegality." I recognize that as a general principle a city council can not reduce salary and/or benefits during each member's current terms of office. I ,also recognize that city council members can voluntarily waive or forego any portion of their respective compensation. I would suggest that votes in support of ordinances that reduce compensation or establish certain levels of benefits constitute acceptance of the modified compensation. This is especially true in the current economic situation, embellished by the long shadow of the very publicly documented incidents in the City of Bell. The Tustin City Council has negotiated tough employment contracts with all of its unions and reduced compensation and benefits to all of its employees. I can fully appreciate why each member of the Tustin City Council would be willing to adopt ordinances that would make appropriate adjustments in their own compensation and accept such changes at the earliest possible date rather than wait until the end of their respective terms. 553 ANION EOULEVAlt17, SUITE 1200 ~ COSTA MESA, CA 92626-7670 ~ (714) 338-7000 ~ FA3C (7 t4) 835-7787 W W W.WS3-LAW,COM 713097.1 . Mark S. Rosen October 12, 2010 Page 2 I should emphasize that the City Council, in the adoption of these various actions, approved for the first time city payment for health benefits of council members. The prior practice of providing payment of premium costs had not been adopted by the Council. In my opinion, the law regarding reduction of compensation only applies to changes in compensation that the City Council previously established or adopted. Simply stated, the protections provided under law preserving compensation only applies to compensation that has been publicly vetted in a public forum and adopted by the City Council in a public process. I concur with your observation that it may be inappropriate to charge Councilwoman Gavello for dinner at city council closed sessions. She did not support the action and therefore she did not consent to any change or waiver of her salary to pay for meals that she does not eat. I have advised staff that she should not be charged or assessed for these meals and she will be refunded any costs of meals that may have been assessed against her salary to date. Since you have reserved Councilwoman Gavello's rights or claims regarding other matters which appear to include inferences regarding ADA and FEHA violations, I will also reserve the City's rights, claims, and defenses regarding such matters and I will not attempt in this letter to address or respond to any of the other issues that you allude to in your letter. I will note a few things. First, I would note that elected officials are not considered employees and do not enjoy protections typically provided under various federal or state discrimination statutes. Nevertheless, I am confident that the Administration would be happy to implement any reasonable accommodation as may be appropriate for any of the City's elected officials. Second, the conduct and statements of all members of the City Council may now be reviewed and revisited. Far example, you will find that all of the members of the City Council, including Councilwoman Gavello, have referred to other members of the City Council by their first names from time to time during City Council meetings. And last, a city council member in Tustin must act in concert with other council members to affect any program, measure, concept, idea, or even to provide direction to the City Manager. An individual member of the Tustin City Council does not have the authority to give direction to the City Manager, a Department Head, or an employee under the express provisions of the Tustin City Code. The role and authority of a member of the Tustin City Council is defined 6y the Tustin City Code and not by what one may perceive as the practice of council members in "every other city." Very truly yours, WOODRUFF, SPRADLIN & SMART A Professj~~ Corporation ;~-- DCH:nI C. HOLLAND 733097.1