20120620 Regular City Council Meeting - MinutesMINUTES OF THE SPECIAL CITY COUNCIL MEETING OF
THE CITY OF VERNON HELD WEDNESDAY, JUNE 20, 2012,
IN CONFERENCE ROOM NO. 1, SECOND FLOOR OF THE
CITY HALL LOCATED AT 4305 SANTA FE AVENUE, VERNON,
CALIFORNIA
MEMBERS PRESENT: Davis, McCormick, Maisano, Ybarra
MEMBERS ABSENT: None
The meeting was called to order at 1:00 p.m. by Mayor Pro-Tem
Davis.
Mayor Pro-Tem Davis announced that this was the time allotted
for public comment and inquired whether anyone in the audience
wished to address the City Council. No one responded.
City Clerk Willard Yamaguchi requested that the agendized
resolution be addressed after closed session.
DISCUSSION AND POSSIBLE ACTION
1. Consideration of the request from Fredric Woocher, dated
June 18, 2012, on behalf of a Vernon resident and Vernon
Chamber of Commerce, regarding the June 5, 2012, Special
City of Vernon City Council Election.
Special Legal Counsel Dana Reed reported the following: that the
County Registrar Recorders Office ("County") has counted 54
ballots and 10 ballots remain unopened; the County intends to
count the remaining ballots on June 22, 2012; and that Mr.
Woocher's letter requests that the City stop the election
process and take over the counting of the ballots from the
County.
Legal Counsel Fredric Woocher, representing Curtis Kirkland and
the Vernon Chamber of Commerce ("Chamber"), offered two
propositions regarding the June 5, 2012, election. The City can
assume that all votes are valid, and allow the remaining ballots
to be counted. However, he advised that there is evidence that
suggests voter fraud with ten ballots.
Woocher reminded the Council that the City convened a canvassing
board for the April 10, 2012 election and heard challenges which
included the personal testimony of one individual. The
canvassing board concluded that there was sufficient evidence to
suggest that 6 of the voters were not residents of the City of
Vernon. Woocher proposed that the issue with the ballots in
question be addressed in the same fair hearing process.
woocher's second proposition is for the City Council to be the
final judge of the election returns. Woocher argued that the
City's Charter allows for this process, and that the language
has been interpreted in California courts that the City Council
as a quasi judicial body, can be the final judge of the election
returns. Woocher further added that the same argument has been
used by the City's attorneys in the current case against former
Councilmember Daniel Newmire. Woocher reported that a similar
provision exists with the State with respect to the legislature.
Mr. Kirkland and the Chamber have raised legitimate questions
over the validity of some of the ballots. Woocher stated that
Special City Council Meeting Minutes
June 20, 2012
the Council has an obligation to make a determination on the
challenges made. The question is how the Council should proceed
now that the challenges have been raised. Woocher recommended
that the City Council send a letter to the County, acknowledging
the receipt of the challenges, and advise that the Council,
under its Charter, has the authority to determine the result of
the challenges, and thus the result of the election. Council
should further request that the ballots remain unopened until
the challenges are reviewed and a final determination on the
validity of the votes has been made.
Woocher explained the importance of the request in that the
County has not opened the 10 remaining ballots, but will do so
on June 22, 2012, without a hearing process unless directed
otherwise. The County had announced the voting results as of
June 19, 2012. Woocher opined that if the remaining unopened
ballots are counted and all of votes were cast in the same way,
the secrecy of the voters is compromised. Further, if the votes
are not all the same, and Council later determines that one of
those ballots is not valid, there would be no method to
determine which vote should not have been counted.
If the process is done after the opening of all the ballots, it
will give credence to the argument that the process is being
done because the election results, as declared by the County,
were unfavorable, not due to the merits of the challenges
presented.
Woocher emphasized the need for a fair process. He urged the
Council to make the request, and hear the challenges in an open
and public setting.
Woocher understands the City's concern for liability, but
assured the Council that he has reviewed relevant court cases
and is prepared to answer any concerns.
Reed advised that attorneys are concerned with the timing of the
request, that is, had the request come in before any of the
ballots were counted, there might be a fair argument that this
would be allowable. It raises concerns about equal protection
under the 14`h Amendment of the Constitution, since 54 ballots
have already been counted. The City and potentially City
Council could be charged with violating the civil rights of the
candidates.
Reed also questioned the venue. The County has advised that
they will hold off on the counting of the ten remaining ballots
until June 22, 2012, unless specified by a higher authority.
Reed opined that the Council is not the right body to make this
request, but that the court can do so through a written mandate
signed by a judge. Reed stated that it is his recommendation
for the City to receive and file the letter and take no action.
In response to Councilman Ybarra's inquiry on the risks, Reed
advised that there is the risk for a civil rights action which
provides for damages and attorney fees. Reed reasoned that
there are two cases with similar situations. The rules cannot
be changed once the counting of the ballots has commenced, and
to do so would be a violation under the Constitution. Reed also
questioned whether the County would consider the City Council to
have sufficient rights to dictate what they should do.
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June 20. 2012
Woocher argued that it is unknown how the County would react to
the City's request, but that the outcome would remain unknown
unless the City makes the request. He has reason to believe
that the County considers this a Vernon election and they are
simply performing the function they have been asked to do which
is administering the election. Under the City of Vernon
Charter, it is the responsibility of the City Council to declare
the results of an election.
In response to Reed's concerns over liability and the changing
of the rules, Woocher argued that the City Council has always
had the responsibility of canvassing an election, declaring, and
judging the election. The rules have not changed. It is the
Council's responsibility to count the election and determine the
votes. Challenges were raised after the election had begun
because it was discovered that people had voted illegally.
Woocher explained that a violation of the Constitution is not
being implied. Everyone has to be treated according to their
own circumstance. If challenges were not made, then there is no
reason not to count someone's ballot. However, if a challenge
is raised, the ballot should not be counted.
Woocher reported that he had reviewed the cases cited by Reed,
and advised that the main case involved the Board of Education
in which Democratic voters were treated differently from
Republicans. Challenged votes were rejected without a hearing,
advising that they would be heard later. Admittedly the Board
of Education acknowledged that they had rejected the ballots
without any basis for doing so. Woocher explained that the
request is completely different from this example. Every
challenge should be treated fairly, with a hearing process that
the Council would hold.
Woocher emphasized that there has been no change to the rules,
and that the City Charter has always allowed for the City
Council to be the final judge.
In response, Reed reported that the City's entire legal team has
recommended that no action be taken on this matter.
Councilman McCormick recommended that a letter be sent to the
County to request that the challenged ballots remain unopened in
order to allow Woocher and his clients time to obtain a court
order.
In response, Reed opined that he does not foresee an issue with
the request for a short continuance on the counting of the
ballots. Robert Stern a consultant assisting Independent Reform
Monitor John Van de Kamp further added that the County is
processing the election for other jurisdictions besides Vernon
and that July 6, 2012, is their deadline.
City Administrator Mark Whitworth inquired on how the request
should be processed. Reed recommended that Woocher draft the
letter and that legal counsel review. The letter should request
the extension but not take a position on the matter.
Woocher explained that the City would need to advise whether it
will hold the hearing for the challenged ballots. Woocher
referenced a case in which a city was sued for not taking action
on a challenge, and not ruling on the matter. He explained that
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Special City Council Meeting Minutes
June 20, 2012
an extension will not help his clients' request if the Council
is not going to exercise its authority to review the challenges.
Councilman McCormick clarified that the recommendation would
include the Council's request for the extension, so that a judge
can issue a temporary restraining order. As a neutral third
party, the courts would then determine what the appropriate
process should be.
If the courts dictate the process, Reed advised that the City
would not be liable.
Councilman Ybarra emphasized the need for fairness for both the
candidates, and opined that it should be done through the
courts. Ybarra was concerned that the City authorized the
County to perform the duties of the election. Ybarra also
recommends requesting an extension and then evaluate the
different options, whether it is to request that the County
conduct a hearing process or allow the council to conduct the
hearing.
Woocher explained the difference in the request from the last
election. The request falls under section 3.4 of the Vernon
Charter. Vernon's own legal counsel has argued in court that
the Council has the exclusive authority to make determinations
on challenges. In order to do this as fairly as possible, the
ballots must remain unopened until the Council can hold a
hearing and make that determination.
Woocher advised that the main request is for the City to grant
the hearing and make a determination on the challenges. in
order to accomplish this, it is recommended that the City
request that the County not count the ballots. Ballots are
scheduled to be opened on June 22, 2012, therefore, the request
is time sensitive.
Councilman McCormick recommends a letter to be sent to the
County requesting that the ballots remain unopened until a judge
can rule on whether the City can hold the hearing.
Woocher argued that the City would need to state whether it will
or will not hold the hearing.
In response, Reed recommends that the Cityreject the request to
hold the hearing.
Woocher questioned whether that was the recommendation from all
the firms. Reed opined that none of the firms would want the
Council to affirm the request. If a definite answer is
requested, then the recommendation would be no.,
Woocher argued that it would be in violation of the case law and
that the recommendation places the Council at risk.
City Administrator Mark Whitworth inquired whether a demand from
the City, to hold the hearing and hear the challenging of the
ballots, would compel the County to not open the remaining
ballots. Whitworth also inquired what the process would be.
In response, Reed clarified that it is only conjecture, but he
suspects the County would have the same view as legal counsel in
that the process cannot be changed now that it has begun. The
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Special City Council Meeting Minutes
June 20, 2012
solution would be for the losing candidate to contest the
election after the certification.
In response, Woocher argued that in response to Newmire's case
the City had filed with the Superior Courts, that the courts
have no jurisdiction to entertain an election contest. Under
the City Charter the City Council has the exclusive authority.
Reed clarified that it was one of the arguments made in that
case, but was not the exclusive argument made.
Woocher opined that if the City is concerned about liability,
this arbitrary decision will subject the City to liability.
Advising in the Newmire case that the courts have no
jurisdiction and then recommending in this election to go to
courts.
Reed explained that the courts are merely an option not an
official recommendation. The only item before the Council is
the request to interject in the counting of the ballots. Reed
stated that the recommendation for this request is for Council
not to take action.
Councilman Ybarra, for the sake of protecting the candidates'
integrity, inquired whether there was a way to place the
counting of the ballots on hold so that other parties, such as
the District Attorney's Office can review.
In response, Reed advised that even if the District Attorney's
Office reviews, it does not have the authority to stop the
County from performing its duties under the elections. Reed
opined that he does not believe any body, other than the courts
have the authority to do this.
Councilman Ybarra inquired whether the City could file a request
with the courts. In response, Reed advised that it was not part
of the recommendation and did not know whether the City had the
authority to do so.
Stern opined that since the counting of the ballots has already
commenced and that the City cannot interfere. Had it not
delegated the election to the County, the City could have heard
the challenges in the same manner as the April 10, 2012,
election. Stern opined that the best response to Woocher's
letter request is to take no action.
Eric Gustafson of Coast Packing Company inquired who will be
responsible for the actions taken today. Gustafson opined that
no action would be just as bad as taking a position on the
matter and that the issue has to be further vetted out. If the
desire is to have the request go through the court system, which
could potentially be very costly, he opined that the business
community will not want to go through that. Gustafson stated
that the businesses have already invested a lot to save the City
and that the power to make the right decisions rest on the
Council. Based on the Charter, Gustafson opined that the
Council should step up and take responsibility. Gustafson
questioned the recommendation made by the attorneys and
questioned what they may gain from this.
In response to Ybarra, Reed advised that he is unaware of
whether the City could pay for the legal fees associated with
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Special City Council Meeting Minutes
June 20, 2012
going to court. The question was not part of the request,
therefore has no answer.
Woocher advised that the City may have the option of requesting
a declaratory relief action. The City can ask the court to
advise on its respective rights and responsibilities.
Mayor Pro-Tem Davis inquired whether Councilman McCormick's
recommendation is unacceptable. In response, Woocher advised
that he has not consulted with the clients to make that
determination. However, he encourages the City to request a
hold on the counting of the ballots.
Director of Light and Power Carlos Fandino inquired whether any
of the 10 remaining ballots belonged to the same challenged
voters from the April 10, 2012, election. It was confirmed that
6 of the ballots were from previously challenged voters.
Fandino inquired whether it was a liability to do nothing on
these challenges knowing that the same challenges had been
reviewed and accepted in the April 10, 2012, election.
In response, Reed advised that there is no correlation between
the two. Their residency in April might be different than that
in June.
Woocher opined that to say there is no correlation is an
overstatement.
Councilman Ybarra expressed his concerns over his personal
liability and the City's liability since the election was
delegated to the County.
In response to Ybarra's concerns, Reed explained that in the
Newmire case, the duties of the election were delegated to the
City Clerk, and the certification by the Clerk was the starting
point for the statute of limitations. It is one of many
arguments, but it is the primary argument, that the City has
made for the dismissal of the suit. The City conducted the same
process in the June election, the difference is that it was
delegated to the County.
Councilman Ybarra opined that in order to maintain the integrity
of both the candidates, he felt it would appropriate to get a
decision from the courts.
Reed advised that the City could send a letter to the County
requesting an extension. The County could argue that it's
already held off the counting of the ballots for two weeks, but
that it would be up the County whether or not to grant the
extension.
Councilman Ybarra inquired whether the City should file a
request in the court. In response, Reed advised that that was
not part of the request, and that the matter has not been
reviewed.
Fandino inquired on the challenges. Woocher reported that the
challenges were made but that no hearing process was held.
Based on conflicting declarations, the challenges were rejected
by the County.
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June 20. 2012
Councilman Ybarra recommended requesting the extension in order
to research the possibility of the City intervening.
Councilman McCormick recommended sending a letter requesting to
put a hold on the counting of the ballots for a minimal amount
of time in order to allow the City to request court
intervention.
Reed recommended that the City Clerk execute the letter, acting
as an agent, in order to protect the Council members. Reed
questioned whether the City could specifically request a hold on
the counting of the ballots so that Council could take action.
Councilman McCormick clarified that the request would be subject
to Counsel's research. In response, Reed recommended that the
party who will be bringing forth the action should be left
vague.
Councilman McCormick concurred and made the formal motion, it
was seconded by Ybarra.
City Clerk Willard Yamaguchi stated the formal motion. The City
shall send a letter to the County requesting a hold on the
counting of the ten remaining ballots for a minimal amount of
time in order to allow the proper party to request court
intervention.
It was recommended to ask that the remaining ballots be held
until June 29, 2012, in light of the County's deadline to
certify the election.
Motion carried, 4-0.
CLOSED SESSION
At 2:00 p.m., it was moved by McCormick and seconded by Maisano,
that the City Council enter closed session to discuss the item
listed under closed session. Motion carried, 4-0.
I.CONFERENCE WITH LEGAL COUNSEL -PENDING LITIGATION
Government Code Section 54956.9(c)
Number of potential cases: 1
At 2:13 p.m. it was moved by McCormick and seconded by Maisano,
that the City Council exit closed session. Motion carried, 4-0.
Chief Deputy City Attorney Willard Yamaguchi reported that the
council approved the hiring of Dimond, Kaplan & Rothstein to
represent the City in a matter regarding interest swaps.
RW QnT.T"TnV
1. A Resolution of the City Council of the City of Vernon
Amending Resolution No. 2011-129 Regarding the
Compensation, Costs and Benefits of its Employees
("Personnel Resolution") By Amending Sections 14(a) and
15(a) and Certain Schedules of the Personnel Resolution
(Amendment No. 2)
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Special City Council Meeting Minutes
June 20, 2012
The City Clerk advised that there had been a change to the
resolution title. Resolution title should read as follows:
Resolution No. 2012-115 - A Resolution of the City Council of
the City of Vernon Fixing the Compensation, Costs and Benefits
of its Employees for Fiscal Year 2012-2013, and Repealing All
Resolutions in Conflict Therewith
It was moved by McCormick and seconded by Maisano to amend the
resolution's title. Motion carried, 4-0.
It was moved by McCormick and seconded by Ybarra to approve
Resolution No. 2012-115 as amended. Motion carried, 4-0.
There were no further items on the agenda.
At 2:15 p.m., it was moved by McCormick and seconded by Maisano,
that the meeting be adjourned. Motion carried.
ST:
Al - r
Da W. Ree
Acting City Clerk
William J. Davi
Mayor Pro-Tem
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