220227 1733 Re_ City Council Authority to Adopt Rules for Adding Items to Council Meeting Agendas_REDACTEDFrom:Michele Magar
To:Frances Marquez
Subject:Re: City Council Authority to Adopt Rules for Adding Items to Council Meeting Agendas
Date:Sunday, February 27, 2022 5:32:52 PM
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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