Monrovia Takes No Action on Allegations of ‘Vacant’ Council Seat. Meanwhile DA Looks into Claim of Brown Act Violation – Attorney Claims Conflict of Interest in Gold Line

Monrovia Takes No Action on Allegations of ‘Vacant’ Council Seat. Meanwhile DA Looks into Claim of Brown Act Violation – Attorney Claims Conflict of Interest in Gold Line

By Terry Miller

A packed council chambers and numerous presentations including the swearing in of Jim Hunt as the new Police Chief dominated the city council meeting in Monrovia Tuesday evening. Mayor Lutz felt she had to respond to a citizen’s letter regarding Clarence Shaw’s empty seat on the council pulpit.
Mayor Lutz addressed the letter from Dr. Jules Bagneris without mentioning his name and asked the city attorney to address the issue.
While Mayor Lutz defended council actions Tuesday, the district attorney’s office said it is looking into allegations that the City Council violated the Brown Act in deciding not to fill Councilman Clarence Shaw’s seat.
Monrovia resident Jules Bagneris filed a complaint with the Los Angeles County District Attorney’s Public Integrity division ( see letter below) stating the council violated the Brown Act . But City Attorney Craig Steele told the council it was under no obligation to consider filling the seat, however they do have the option to appoint a caretaker until Shaw’s return.
Steele said that the seat is not actually and never was “vacant”. The seat remains Shaw’s.
During public comment, Attorney Robert Silverstein hardheartedly warned the council that he was videotaping the meeting Tuesday and said repeatedly that they ( council ) had violated the Brown Act. “ My client is a Veteran” referring to Mr. Brokate and yet he also belives Shaw’s seat should be filled while Shaw is away on active duty.
Silverstein then went on the offensive against Mayor Lutz and her connection to the Gold Line Foothill Extension project. The attorney pointed out that Mayor Lutz recently purchased a property ( 406 W. Genoa Ave. Unit D ) which is very close to the Gold Line Maintenance Yard project while she is an alternate on the Foothill Extension Board. Silverstein pointed out again that he was videotaping the council meetings and believes there is a conflict of interest with Mayor Lutz.

Pam Fitzpatrick, said the controversy( regarding Shaw’s seat) was unfounded. Fitzpatrick is a strong Shaw supporter. Cyrus Kemp also agreed with Fitzpatrick on this particular issue
In an email to Beacon Media after Tuesday’s meeting Bagneris said:
“No erroneous statement was made by me regarding the empty chair of Councilman Shaw that has been vacant since his departure for military service over sixty days ago. One look at the council seats normally occupied by five members clearly shows one empty chair that has been without an occupant and is vacant. Moreover, the City Attorney tonight acknowledged that the council has “the right but not the requirement to appoint someone to somewhat of a caretaker position.” I have asked and ask again for the Mayor and Council to put on the agenda whether the electors and stakeholders of Monrovia desire to have this empty seat filled by a temporary appointment until the return of Councilmember Shaw from his military duties.”. Jules Bagneris
Here is the original letter sent to Council:
“TO: Honorable Mayor and Members of the City Council
415 South Ivy Avenue, Monrovia, California 91016
FR: Dr. Jules S. Bagneris, III.

I hereby request that an item be placed on the agenda for the September 6, 2011 Monrovia City Council meeting to determine whether the City Council seat held vacant since July 6, 2011 is to be filled by an appointment or special election as referenced by state law.
I believe a decision of this magnitude requires those with decision-making authority to allow the electorate as well as all stakeholders in the community to be invited to share their views at a public meeting. The City Council has not taken official action regarding this matter at a public meeting.
Thank you in advance for your speedy reply to this request.
FR: Dr. Jules S. Bagneris, III.

At his request it is being held for him until he completes his active duty service with the United States Army. Clarence Shaw’s seat is “not vacant “ and nevre has been according to City Manager Scott Ochoa; it is being ‘held’ for him. Ochoa said, “This is Clarence Shaw’s request. It is his seat.”
The Reverent Bagneris wrote that the City Council was in “violation of state law” by not appointed someone or holding a special election to fill the ‘Vacant’ seat. In fact, the city would be in violation of Section 395.8 of the Military and Veterans Code of the State of California, if it made such an appointment.
395.8. states “ Any officer, elective or otherwise, who leaves or shall have left the service of any city in order to enter upon active service with the armed forces of the United States shall be reinstated and restored to his office upon his discharge or release from such active service with the armed forces; provided, such discharge or release is prior to the expiration of the term for which he has been elected or appointed.
The rights created by this section shall have no application to any officer who shall have been dishonorably discharged or released from such armed forces, or shall have been so mentally or physically disabled as to be incapable of performing the duties of his office or shall fail to present himself to the legislative body or other appointing authority of such city ready and willing to assume the duties of his office, within six months from the time of his discharge or release from active service with the armed forces.
The office from which such officer absents himself to enter upon active service with the armed forces shall not be considered to be vacant but the legislative body or other appointing authority, as the case may be, may appoint an officer to temporarily replace any such officer so absenting himself to enter upon active service with the armed forces. Such temporary officers shall have all of the powers and duties of the office to which he may be temporarily appointed and shall hold said office until the expiration of the term thereof or until the officer returns from service with the armed forces, whichever event first occurs.”

The important and applicable words are that the office “shall not be considered vacant” and “may appoint.” According to Ochoa, it was Shaw’s request that his office not be considered vacant and in respect of that request and his service to this community and the country, the seat is being held open for him.
When considered vacant, the office of an elected official must be filled by an appointment or the holding of a special election to fill the vacancy. According the City Attorney Craig Steele, “This office is not vacant.” He went on to explain that to be considered ‘vacant’ the office holder must have resigned, or be considered incapacitated (that incapacity can be up to and including death). “ I gave and entire brief to the council before the council meeting at which Shaw announced his activation,” Steele said. Shaw was in attendance when the Mayor publicly accepted his announcement and said that his seat would be held for him.
Ochoa also pointed out that with current technology and considering that Shaw is still within the boundaries of the United States, he can reach other members of the City Council and his constituents can reach him. Ochoa said that should the need arise, the city planned to investigate technological means of holding a meeting with Shaw in his current location. “I don’t anticipate the need for such a meeting, but we can work it out if necessary.”
All e-mails received by the City Council and weekly reports of the City Manager are sent to Shaw. He also has the ability to retrieve those messages immediately and, when his commitments to his military duty allow, to check with City Hall for phone messages left for him. “It is not as if we cannot reach him,” said Ochoa.
The number for Monrovia City Hall is (626) 932-5550. Callers who wish to reach Shaw need to ask for his voice mail. The simplier method it to send messages via e-mail sent to the City of Monrovia, Attn: Clarence Shaw.
Bagneris also made the statement to members of City Staff and at least one member of the City Council, that by leaving Shaw’s seat “vacant” his “constituents” were not being represented. “The are no specific district seats for which a candidate runs and is elected. Our Council is elected by the entire population of the city. No member of the council represents a specific portion or section of the city,” Ochoa said. “Every Council Member is elected by and represents the entire community,” he concluded.

We asked Dr. Bagneris, who is a doctor of philosophy in pastoral ministry, if he would run for Mr. Shaw’s seat should it come available/ He told us “I do not expect that an election will be necessary. I do expect the council to make an interim appointment with the advice and consent of Councilman Clarence Shaw.”

Bagneris cited Government Code 36512 regarding city council seats, although the Brown Act also prohibits discussion or decisions if not posted on the agenda.

For your perusal, we submit government code: 36512 for you:
“ (a) If a vacancy occurs in an appointive office provided for
in this chapter, the council shall fill the vacancy by appointment.
A person appointed to fill a vacancy holds office for the unexpired
term of the former incumbent.
(b) If a vacancy occurs in an elective office provided for in this
chapter, the council shall, within 60 days from the commencement of
the vacancy, either fill the vacancy by appointment or call a special
election to fill the vacancy. The special election shall be held on
the next regularly established election date not less than 114 days
from the call of the special election. A person appointed or elected
to fill a vacancy holds office for the unexpired term of the former
incumbent.
(c) Notwithstanding subdivision (b) and Section 34902, a city may
enact an ordinance that does any of the following:
(1) Requires that a special election be called immediately to fill
every city council vacancy and the office of mayor designated
pursuant to Section 34902. The ordinance shall provide that the
special election shall be held on the next regularly established
election date not less than 114 days from the call of the special
election.
(2) Requires that a special election be held to fill a city
council vacancy and the office of mayor designated pursuant to
Section 34902 when petitions bearing a specified number of verified
signatures are filed. The ordinance shall provide that the special
election shall be held on the next regularly established election
date not less than 114 days from the filing of the petition. A
governing body that has enacted such an ordinance may also call a
special election pursuant to subdivision (b) without waiting for the
filing of a petition.
(3) Provides that a person appointed to fill a vacancy on the city
council holds office only until the date of a special election which
shall immediately be called to fill the remainder of the term. The
special election may be held on the date of the next regularly
established election or regularly scheduled municipal election to be
held throughout the city not less than 114 days from the call of the
special election.
(d) (1) Notwithstanding subdivision (b) and Section 34902, an
appointment shall not be made to fill a vacancy on a city council if
the appointment would result in a majority of the members serving on
the council having been appointed. The vacancy shall be filled in the
manner provided by this subdivision.
(2) The city council may call an election to fill the vacancy, to
be held on the next regularly established election date not less than
114 days after the call.
(3) If the city council does not call an election pursuant to
paragraph (2), the vacancy shall be filled at the next regularly
established election date.”

Here is Bagneris’ letter to the DA:
Head Deputy District Attorney
Public Integrity Division
Los Angeles County District Attorney’s Office

Dear Mr. Demerjian:
The purpose of this letter is to report what appears to be a violation of the Brown Act by the Mayor and Members of the Monrovia City Council. The violation is related to city council discussion and/or decision regarding Councilman Clarence Shaw’s City Council seat and whether an appointment would be made to fill the seat while he leaves his council duties to fulfill military service requirements, apparently for one year or longer.
Specifically, between June, 2011 and July, 2011, council members conducted lengthy discussions at city council meetings on this subject although there was no listing on the posted agenda. Further, based on public statements made by the Mayor and other City officials, the Council made a decision on this subject (apparently outside of a public council meeting), however, no council agenda ever listed this item for consideration. Additionally, this matter may have been discussed in closed session although no such agenda listing or public report of action taken in closed session was ever made (indeed, there appears to be no legal basis for such a discussion to be conducted in closed session).
Based on the foregoing, it seems that one or more violations of the Brown Act occurred as follows:
• The discussion of an item not posted on the agenda.
• The decision on an item not posted on the agenda.
• The decision on an item not posted on the agenda and not voted on in public.
• The discussion and decision on an item not posted on the agenda and conducted outside the open meeting.
• The discussion and decision on an item not posted on the closed session agenda and not reported back to the open meeting as coming from the closed session discussion and decision.
I look forward to your investigation in this matter and providing a remedy for any violations as soon as possible. I have attached additional documentation which may assist in your investigation.
My best regards.
Sincerely,
Dr. Jules S. Bagneris, III.
cc: Jennifer Snyder

Jennifer Snyder has said she is inveritgating all the allegations and reviewing council videotape to ascertain if, in fact, any violation of law has occurred.

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