Wednesday, December 14, 2011

Less Money for the Hall Park

The cost of the open government lawsuit against the city is high. One local attorney who has interacted with our city told me that the city's attitude toward legal violations is they don't care because they have a deep pockets legal fund, while the citizens don't and can be driven away based on trying to outlast and outspend citizens. They know 99% of the time people won't seek the help of a judge because they can't afford the time or money.

In the Cummins case, the attorney worked on contingency, otherwise the city's strategy would have worked to exhaust citizens' funds and financial support for the case. Of course, in open government cases, the judge can grant attorney's fees to the plaintiff. That is what happened.

Mayor Bond is talking about appealing the judge's ruling, which will cause the attorneys to do even more work. That will cost the taxpayer even more, because the outrageous cost will be passed on to you. It is completely nuts.

At close to the last minute allowed by law, the city sent out its closed session agenda notice for today. The council is discussing the Cummins case this afternoon.

You can read all of Dennis Winston's response to the city here. Here are some excerpts:

A defendant cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.

Respondent City of Encinitas (“City”) has chosen to attack Petitioner Kevin Cummins’ (“Cummins”) motion for attorneys’ fees with opinions and conclusions, not facts.  The City’s attacks are evanescent since the City cites no case or principle which denies a Petitioner the right to receive an Answer in good faith and to conduct discovery.
City attacks Cummins’ efforts to resolve factual issues before trial: first, by denigrating Cummins’ efforts to seek a good faith answer from the City to Cummins’ Petition (e.g., instead of denying that City’s employees sent correspondence); second, by condemning Cummins’ attempt to conduct discovery in good faith.
                  According to the Declaration of Gregory L. Lusitana In Support Of Respondent’s Opposition (“Lusitana Declaration”) the City intentionally chose to refuse to authenticate documents in its Answer, planning “to authenticate these documents as the ‘record’ …by negotiating these issues with petitioner.”[1]  (Lusitana Declaration, ¶ 2:1-7.) 
First, what gave the City the right to proffer an Answer containing sham and evasive allegations of factual matters that were within the actual knowledge of the City?  
Second, when the City was faced with a meet and confer to prevent Cummins’ motion to strike from being filed, why did the City not “negotiate[] these issues” then?  Moreover, since Cummins’ Petition sought relief under Code of Civil Procedure § 1085 (“Section 1085”),[2] not Section 1094, the City should have known (since, according to Lusitana, “writ of mandate proceedings are significantly less complex …than a typical civil action” (Lusitana Declaration, ¶ 8)) that there was to be no administrative record to be negotiated at all.  As the court explained in Bright Development v. City of Tracy (1993) 20 Cal App.4th 783, 795:  

You can get the judge's ruling, with not so nice words about the city, here. He agreed with Cummins' attorney. 
The city still has not figured out that it has to act reasonable and it really really can't stand anyone who points this out. I sent the following the to he council:

Dear Council,

I see that you are going into negotiations with one of your bargaining units. I would recommend reviewing the status of the retirement system to determine the magnitude of the problem, so that an effective solution which is fair to current and future employees and taxpayers can be reached.  Please agendize a discussion of the STATUS of the retirement system, if for no other reason than to set the record straight about the status of the city's long-term finances.

I also see the legal fees in my case is on the agenda. I would like to remind you that when I requested the 2009 roads report I was rejected, even though the consultant had already finalized, printed, delivered, and invoiced the city for a final report. The City said it was a draft document. There was no risk to the public of releasing the document on roads conditions, which most people don't care about anyways.

For the newer council members, please be advised that the precipitating reason for the roads report was my questions about the fictitious report the city engineers were saying was being used to schedule road repair. The City refused to show this report to me, for years. That was against the law. Breaking the law was better than being caught lying, apparently. It turned out what the City had was a years out of date inventory and repair schedule. It was considered useless by your own staff. When I found out, the City quickly ordered a new $100,000 roads report to cover their butts during the next budget cycle and I recognized the efforts to go in the right direction, even if was selfishly motivated rather than for the public good. The City's good behavior didn't last long.

Please recall that I tried very hard to avoid a lawsuit. I would also like to note that this issue could have been completely avoided with a Sunshine Ordinance, which the council majority rejected.

The cost of the lawsuit is insulting to the taxpayers. My guess is you have no idea how much your staff drove up the cost of this case. I hope you didn't approve the tactics, because it cost the taxpayers. I recommend that you do your own investigation. I invite you to look into the record, speak with my attorney, and meet with me publicly to discuss the case. Just so you know,  Winston seemed to think our case was so strong that he didn't need to work out all the details [LB note: i.e. preparing responses to the city's baloney and attempted misdirections]. Given the nature of the City's responses that would have driven the cost up even more.

You can read what the judge wrote here:

I want you to be advised that the City Manager, after great delay, has informed me the City cannot carryout the judge's original order. The correspondence between the City and the consultant was destroyed.

I will offer to invite any of you to publicly discuss this case, including the costs, to set the tone for moving forward with a more open city hall. I am also willing to put the case behind us and just set a good tone for moving the city forward with a more open city hall. There are dozens of practices that are ripe for easy and cheap improvements. I look forward to hearing your suggestions and seeing you take action.

Kevin Cummins
PS Not everything in the City's submissions to the court is honest. I do wonder how my elected representatives think about that.

Side note on a quote from the UT:

Cummins pressed the lawsuit even after the final report was released. The judge ruled on May 24 that the city must release the draft because it was inconsequential once the final version had been published.

The City wouldn't admit and still pretends the cat isn't out of the bag. We asked for the "DRAFT" in the lawsuit because the city said that was all they had. They lied and never came clean with the court or unwound their deception. The document was finalized, printed, bound, delivered, and invoiced before I requested the "draft". They said they only had a draft. Had they told the truth I would have asked for the final document.

Who is responsible for all this?


  1. They don't care because its not their money. Its only being paid by the tax payers. They only care about control. When will the DA get involved?

  2. And they don't want to "waste money" getting an appraisal for the
    Pacific View site. Amazing.

  3. Way to go Kevin! The Judge did the right thing. Thanks for going to the mat for your community.

  4. This nightmare just goes on and on. Good for you for taking on this monstrous challenge.

  5. Kevin, we're so grateful for your efforts towards "sunshining" public documents, and for holding the City to the high standard set by the law.


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