220227 1744 Fwd_ City Council Authority to Adopt Rules for Adding Items to Council Meeting Agendas_REDACTEDFrom:Michele Magar
To:Frances Marquez
Subject:Fwd: City Council Authority to Adopt Rules for Adding Items to Council Meeting Agendas
Date:Sunday, February 27, 2022 5:43:59 PM
THERE IS NOTHING ATTACHED TO OPEN
Begin forwarded message:
From: Michele Magar <tanyaprojectmlp@gmail.com>
Subject: Re: City Council Authority to Adopt Rules for Adding Items
to Council Meeting Agendas
Date: February 27, 2022 at 5:32:44 PM PST
To: Frances Marquez <fmarquez@cypressca.org>
You can liken their attempts to “contain” and “control” you to drama you have
chosen to sidestep. You will not dignify it with more than a summary response.
Your focus is elsewhere, and that’s where it’s going to stay.
It doesn’t matter what they vote, because obviously they have a four to one
majority. You cannot stop them from adopting anything under the sun. But that
doesn’t give it the force of law.
For example, left over from our overtly racist past are “restrictive covenants” that
“run with the land” and ban the sale of real estate to African-Americans,
Mexicans, Italians, you name it.
All such “covenants” are illegal, so do not carry the force of law. Rather than
require zillions of condo associations and real estate associations to rid real estate
records of racist restrictive covenants, a gargantuan task, it’s simply understood
that these “rules” are null and void ON THEIR FACE. It’s as if someone took a
giant erasure and got rid of them.
The same applies to what the Council decides to enact. If it violates state law,
federal law, the Constitution, and a treaty the USA has ratified . . . it’s null and
void, exactly like a restrictive covenant in real estate records.
Re voting rights:
You are in favor of district voting. You believe the Council owes it to the
Residents of Cypress to not drag their feet in the hope that any reforms will take
effect only AFTER the November 2022 election. This is not rocket science, and
there is no further excuse for delaying a yes or not vote on district elections.
So you’d like to propose it RIGHT NOW. [and if you’re stopped]: Then if not
tonight, then in two weeks. That will give everyone more than enough time to
decide which way to vote. I dare say everyone on the Dias already knows which
way they plan to vote, so lets be responsible and get this done without dragging
our feet any longer.
I want to remind my colleagues and everyone watching that tomorrow, we will be
sued for violating the CA Voting Rights Act. That’s exactly what a demand letter
does: it gives a specific deadline to negotiate, and if ignored, the lawsuit is filed
the very next day.
So I will state for the record that I support district elections for very simple
reasons: 5 steps:
1. The Constitution requires a national census every decade. The reason is to
make sure everyone gets their fair share of representatives to the House:
depending on where the population is booming versus declining.
2. The most recent census results were announced last year, and they show that
today, Cypress has become a majority minority town. Just like the state of
California, which has been a majority minority state for some time now. So
Cypress is beginning to look more like the rest of California.
3. Here's the major breakdown according to last year’s census results:
Asian & Pacific Islander percentage is Z
Latino percentage is Y
Afrian-Ameican percentage is X
Bi-racial is ??
And white people now make up a minority of residents. Ten years ago it was Z
percent. Today it’s Y percent.
4. Studies have shown that the best way to provide fair representation to all racial
groups is by adopting district voting. In fact, I know this is true because I wrote
my graduate thesis on redistricting. So this is something I’ve studied in depth.
5. FRANCES: lay out what you know like you’re telling a high school kid. Just
one or two more steps, and that’s it. Stop, thank people for listening, and sit down
(or tell Paulo you’re done speaking).
THAT’S IT. No one has the bandwidth for a long speech. Keep it short and easy
to understand, and just set boundaries all over the place:
a. You will not be railroaded, nor contained, nor controlled.
b. You understand you are outvoted “THIS YEAR,” but with district elections,
your guess is you won’t stay outvoted NEXT YEAR.
c. It’s quite clear that two of the Council members are termed out. That makes it
difficult to hold them accountable because neither will be on the ballot. But that
doesn’t excuse them from acting in the best interest of Cypress.
FOR EXAMPLE: What matters is NOT that the Council did not violate the law
when it decided to award a long-term trash contract without bidding and without
vetting, and the result is a 32 percent hike in garbage fees, a hike not experienced
by other Orange County communities that opted to shop around for the best
possible deal.
Rather than harp on not having broken the law, why not decide to rectify the
problem instead? Wouldn’t that be more in keeping with what residents have been
asking their elected officials to do? They want us to fix the problem, not tell them
they can’t hold us accountable because we didn’t break the law.
That’s a low bar. We can do better than that. We can decide to listen to residents
and respond, not just let them vent at the end of every Council meeting. The open
microphone is an opportunity for us to engage with residents, not sit up here and
ignore them and then adjourn and go home. That’s disrespectful, and allows us to
ignore the people we are here to serve.
As President Biden’s pick for the Supreme Court wrote in a lauded opinion:
Presidents are not Kings. Neither are we. We’re here to serve the people, not fight
among ourselves. Let’s act like adults and solve problems the people elected us to
solve. Let’s not waste taxpayer money defending a voting rights lawsuit we can’t
win.
Let’s allow the Dias to reflect our City. And let’s stop dragging our feet about it,
understand we are choosing to become defendants in a voting rights lawsuit that
will be filed tomorrow, and let’s at least “own” our decisions, not back into them
by delaying and kicking the can down the road. We owe the residents of Cypress
better than that.
On Feb 27, 2022, at 11:29 AM, Frances Marquez
<fmarquez@cypressca.org> wrote:
Begin forwarded message:
From: Fred Galante <fgalante@awattorneys.com>
Subject: City Council Authority to Adopt Rules
for Adding Items to Council Meeting Agendas
Date: February 25, 2022 at 2:32:01 PM PST
To: Paulo Morales <pmorales@cypressca.org>,
Anne Hertz-Mallari <ahertz-
mallari@cypressca.org>, Jon Peat
<jpeat@cypressca.org>,
"SMinikus@cypressca.org"
<SMinikus@cypressca.org>, Frances Marquez
<fmarquez@cypressca.org>
Cc: "pgrant@cypressca.org"
<pgrant@cypressca.org>
Dear Mayor and Council Members,
Council Member Marquez asked me to provide legal
authority for the proposition that a City Council may
establish its own rules for city council members requesting
agenda items to be placed on the city council agenda for
consideration. Detailed below is my analysis.
City meeting procedures are not prescribed by state law,
with the exception of requirements contained in the Brown
Act (Govt. Code §54950 et seq). Cal. Muni. L. Handbook
§2.40. A city council may adopt and change its own
procedural rules and regulations regarding the conduct of its
proceedings. Govt. Code §36813; see Nevens v. City of Chino,
233 Cal.2d 775, 778 (1965). These rules may be enacted by
ordinance or by resolution. See Central Mfg. Dist., Inc. v.
Board of Supervisors, 176 Cal.2d 850, 860 (1960); Cal. Muni.
L. Handbook §1.229. The city council may also abolish,
suspend, modify, or waive its own procedural rules. City of
Pasadena v. Paine, 126 Cal.2d 93, 96 (1954). It is important
that the procedural rules do not violate federal or state
constitutions, mandatory charter, or statutory provisions by,
for example, discriminating against a protected class of
persons. Cal. Muni. L. Handbook §2.46. Said rules must be
reasonable and not arbitrary and capricious. See Nevens, 233
Cal.2d at 778; Paine, 126 Cal.2d at 93.
Furthermore, since Cypress is a charter city, the City Council
has broader authority to adopt its own rules for Council
Members requesting agenda items to be placed on the
Council agenda for consideration insofar as such procedures
are a “municipal affair” and thus may be governed by the
City’s Charter. Cal. Muni. L. Handbook §1.184. The home rule
provision of the California Constitution authorizes a charter
city to exercise plenary authority over municipal affairs, free
from any constraint imposed by the general law and subject
only to constitutional limitations. SeeCal. Const. art. XI § 5(a);
Comm. of Seven Thousand v. Super. Ct. (City of Irvine), 45
Cal.3d 491 (1988); Bishop v. City of San Jose, 1 Cal. 3d 56, 61
(1969); Ex Parte Braun, 141 Cal. 204, 209 (1903). It is for the
courts to determine whether an activity is a municipal affair
or a matter of statewide concern. Such a determination
depends on the specific facts and circumstances of each
case. The following are some areas that the courts have
consistently classified as municipal affairs:
1. Municipal Election Matters. See Mackey v. Thiel,
262 Cal. App. 2d 362 (1968).
2. Procedures for Initiative, Referendum and Recall.
See Lawing v. Faul, 227 Cal. App. 2d 23, 29 (1964).
3. Procedures for Adopting Ordinances. See
Brougher v. Board of Public Works, 205 Cal. 426
(1928).
4. Compensation of City Officers and Employees. Cal.
Const. art. XI, § 5(b); See Sonoma County
Organization of Public Employees v. County of
Sonoma, 23 Cal. 3d 296 (1979); but see San
Leandro Police Officers Association v. City of San
Leandro, 55 Cal. App. 3d 553 (1976) (labor
relations is not a municipal affair; Charter cities
are subject to the Meyers-Milias Brown Act. Cal.
Gov’t Code § 3500.
5. Processes Associated with City Contracts. See First
Street Plaza Partners v. City of Los Angeles, 65 Cal.
App. 4th 650 (1998); but see Domar Electric, Inc.
v. City of Los Angeles, 41 Cal. App. 4th 810 (1995)
(state law establishing employment policy may
preempt local regulation of bidding criteria).
6. Financing Public Improvements. See City of Santa
Monica v. Grubb, 245 Cal. App. 2d 718 (1996).
7. Making Charitable Gifts of Public Funds for Public
Purposes. See Cal. Const. art. XVI, § 6; Tevis v. City
and County of San Francisco, 43 Cal. 2d 190
(1954).
8. Term Limits for Council Members. See Cawdrey v.
City of Redondo Beach, 15 Cal. App. 4th 1212
(1993); but see Cal. Gov't Code § 36502(b)
(regulating term limits).
9. Land Use and Zoning Decisions (with a few
exceptions). See Brougher v. Bd. of Pub. Works,
205 Cal. 426 (1928).
Please let me know if there are any questions or comments,
but please do not reply to all in response to this email so as
to avoid any Brown Act issues.
Fred Galante | Equity Partner
Aleshire & Wynder, LLP | 18881 Von Karman Ave., Suite
1700, Irvine, CA 92612
Tel: (949) 223-1170 | Dir: (949) 250-5410 | Fax: (949) 223-
1180 | fgalante@awattorneys.com | awattorneys.com
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