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HomeMy WebLinkAbout24 - Newport Beach Voter Protection; Rescission of Resolution 2018-8 Relating to Subpoenas - CorrespondenceFREDRIC D. WOOCHER MICHAEL J. STRUMWASSER GREGORY G. LUKE' BRYCE A. GEE BEVERLY GROSSMAN PALMER DALE K. LARSON tAlso admitted to practice in New York and Massachusetts *Also admitted to practice in Illinois RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 STRIJMWASSER & WOOCHER LLP ATTORNIF.Y' Ar LAW 10940 WILSHIRE BOULEVARD, SUITE 2000 LOS ANGELES, CALIFORNIA 90024 June 25, 2018 Honorable Mayor and Members of the City Council City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Re: June 26, 2018, City Council Meeting Agenda Item 24 Newport Beach Voter Protection: Ordinance No. 2018-12 Dear Mayor Duffield and Members of the City Council: TELEPHONE: (310) 576-1233 FACSIMILE: (310) 319-0156 WWW . STRUM WOOCH.COM ANDREA SHERIDAN ORDIN SENIOR COUNSEL I write to you on behalf of PCI Consultants, Inc. ("PCI"), and its President, Angelo Paparella. As you are aware, PCI was retained earlier this year to circulate and solicit signatures on a petition calling for the recall of City Councilmember Peotter. During the review of submitted signatures at the Orange County Registrar's office, PCI agreed that it appeared that a circulator hired by one of its subcontractors had submitted approximately 50 fraudulent signatures on one or more of the recall petition sections. PCI is cooperating fully with the District Attorney's investigation into the matter. PCI has also cooperated fully with the City Council's investigation into the matter, including providing the City Council with all of the documents the City has requested in response to a subpoena issued to the company earlier this year. Nevertheless, in describing PCI's response to the City's document request, City Manager Dave Kiff's Staff Report for Agenda Item 24 for the City Council's June 26, 2018, meeting asserts that "it does not appear that the company [PCI] provided instructions or certificates to gatherers as required by California Elections Code Sections 9607, 9608, 9609, and/or 9610." The Staff Report, as well as City Manager Kiff's "Insider's Guide" and proposed Ordinance No. 2018-12, essentially accuse PCI of violating state election laws by failing to demonstrate compliance with Elections Code sections 9607 and 9609. Before you proceed to further defame PCI by accusing it of violating Elections Code sections 9607 and 9609, we suggest that you actually read the language of those statutes, which neither City Manager Kiff nor City Attorney Harp appears to have done. Both sections explicitly apply only to the gathering of signatures on initiative petitions not recall petitions, which is what are at issue here. Elections Code section 9607, for example, states: Mayor and Members of the City Council June 25, 2018 Page 2 "The proponents of an initiative measure shall ensure that any person, company, or other organization that is paid, or who volunteers, to solicit signatures to qualify the proposed measure for the ballot shall receive instruction on the requirements and prohibitions imposed by state law with respect to the circulation of the petition and signature gathering thereon, with an emphasis on the prohibition on the use of signatures on an initiative petition for a purpose other than qualification of the proposed measure for the ballot." Likewise, section 9609 declares: "(a) Prior to allowing a person to circulate an initiative petition for signatures, the person, company official, or other organizational officer who is in charge of signature gathering shall execute and submit to the proponents a signed statement that reads as follows: "I, , acknowledge that it is a misdemeanor under state law (Section 18650 of the Elections Code) to knowingly or willfully allow the signatures on an initiative petition to be used for any purpose other than qualification of the proposed measure for the ballot. I certify that I will not knowingly or willfully allow the signatures for this initiative to be used for any purpose other than qualification of the measure for the ballot. (Signature of Official) Dated this day of , 20 "(b) The certification required by subdivision (a) shall be kept on file by the proponents of the proposed initiative measure for not less than eight months after the certification of the results of the election for which the measure qualified, or if the measure, for any reason, is not submitted to the voters, eight months after the deadline for submission of the petition to the elections official. "(c) Failure to comply with this section shall not invalidate any signatures on a state or local initiative petition." As can readily be seen, neither of those sections (nor sections 9608 or 9610) applies to or imposes any obligation on companies that are hired to solicit signatures on recall petitions, which fully explains why PCI's response to the City's subpoena did not include any instructions or certificates that the Staff Report erroneously suggests should have been included in PCI's production. Mayor and Members of the City Council June 25, 2018 Page 3 We therefore request that the City publicly correct the record by retracting those portions of the Staff Report, proposed Ordinance No. 2018-12, and City Manager Kiff's "Insider Report" that wrongly state or imply that PCI has violated or has potentially violated state election laws by failing to maintain or provide the instructions and certificates referenced in Elections Code sections 9607-9610. Having hereby been put on notice regarding the erroneous allegations contained in these City documents, any further repetition of these or any similar allegations at the June 26, 2018, City Council meeting will constitute "knowing or reckless" disregard of the truth under New York Times v. Sullivan's "actual malice" standard for defamation. Sincerely, I-- Alo-v� Fredric D. Woocher RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 Nelson, Jennifer From: Lynn Lorenz <lynnierlo@aol.com> Sent: Monday, June 25, 2018 11:01 AM To: Dept - City Council Subject: Agenda Item #24, City Council Meeting, June 26th, 2018 Dear City Council Members, Upon reading the agenda items for tomorrow night's City Council Meeting, my attention was drawn to Item #24, specifically section 1.26.050, which according to the agenda, "will Strengthen and Protect the Integrity of Elections Within the City of Newport Beach." Although this sounds like a noble cause for the City Council, if passed, it just might be the opposite. As they say, "the devil is in the details." In reality, this ordinance is most likely an opportunity that the Council is seizing upon arising from the actions of ONE paid petition gatherer who made a really bad mistake during the Peotter Recall Campaign. And it appears that it is going to be used to infringe upon the citizens of Newport Beach's rights to pass new laws or to challenge bad decisions made by the Council. Such an example would be that of the previous City Council's requirement that the Museum House's petition gatherers carry around a 3700 page Museum House Petition (which interestingly so inflamed some of the residents of Newport Beach, that they were more motivated than ever to sign the petition). Consequently, the Council needs to convince the citizens of Newport Beach that they really are concerned about expanding the voting rights of the citizenry and that this is not an attempt to inflict upon them RESTRICTIONS that will negatively impact their constitutional rights of initiative, referendum and recall. The right to petition our government is one of the most sacred rights that we have in America, and any governmental body attempting to abridge those rights should be prohibited from doing so. Respectfully submitted, Lynn Lorenz 434 Redlands Avenue Newport Beach, Ca 92663 949 646 2054 1 RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 Nelson, Jennifer From: Milvi vanderslice <Milvivander@aol.com> Sent: Sunday, June 24, 2018 4:43 PM To: Dept - City Council Subject: Changes I am against extra requirements for recall, referendums, or initiatives. Mllvi Vanderslice Sent from my Wad RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 Nelson, Jennifer From: Jim Place <jimplace@sbcglobal.net> Sent: Sunday, June 24, 2018 4:43 PM To: Dept - City Council Cc: susanskinner949@gmail.com; Jean Watt Line In the Sand; NFReynolds@yahoo.com Subject: Gang of 4 Action as a result of The Scott Peotter Recall To the City Council: It is unfortunate that one person took illegal action with forged signatures on the attempted recall of Scott Peotter. However, that does not give the Gang of 4 the license to cause volunteers to have to get certificates and require voluminous documentation for every recall, referendum or initiative the citizens of Newport Beach feel compelled to to ke. In addition the city attorney seems to have overlooked the fact this is limited to initiatives. When the City Council required 3,700 pages for the Mission House petition, the Gang of 4 sunk to a new low in their responsibility as members representing the voters in the city. This is just another move by the Gang of 4 to subvert the possible actions of the citizens they represent. Once again I call for them to resign as they fail to understand their duties and obligations to the community. In November it's time to vote the Gang of 4 out If they haven't already left. Jim Place Sent from my iPhone RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 Brown, Leilani From: Susan Skinner <seskinner@me.com> Sent: Monday, June 25, 2018 2:20 PM To: City Clerk's Office Subject: Fwd: Agenda item #24 And another one. Thank you, Susan Skinner Sent from my Wad Begin forwarded message: From: Susan Skinner <seskinner(a,me.com> Date: June 25, 2018 at 10:17:57 PM GMT+1 To: CityCouncil&newportbeachca.gov Subject: Agenda item #24 Dear City Council: The ability to petition our government is among the most precious rights we have. You will recall that Mr. Peotter, Duffield and Muldoon sought to undermine our constitution rights to oppose the Museum House by making the referendum petition 3700 pages long. It appears to me that item #24 is intended to further undermine our constitutional rights and I would like to register my opposition to your actions. I am on vacation this week and cannot open all attachments on my Wad, so may be missing some information as I write this letter. You are claiming that California Election Code sections 9607-9610 were not followed during the recent recall of Mr. Peotter (except that Mr. Harp, our City Attorney, seems to have missed the fact that these code sections refer only to initiatives and not to recalls at all) and therefore we need to become the only jurisdiction in California to re -iterate them locally. As an aside, this statement has resulted in a letter from the attorney of PCI, the company hired to collect paid signatures during the recall, noting that you have impugned their good name and threatening to sue you if you continue to do so. California Election Code 9607-9610 deals with having proponents and others sign certificates acknowledging that collected signatures cannot be used for other purposes as well as instructions in election law. This part of the election code specifically excludes volunteers and specifically states that signatures cannot be excluded if such a certificate is not signed. The City Clerk is the czar of elections for Newport Beach, a fact which I learned when I sued the city regarding Measure Y in 2014. The Registrar of Voter cedes absolute power to her in election matters that involve city elections. So, let's look at what the code proposed for Tuesday does and does not say: "Any person, company, candidate, or committee that is required to provide instructions and/or certificates for election activity occurring in the City of Newport Beach under California Elections Code Sections 9607, 9608, 9609, and/or 9610, or any successor sections, shall provide a copy of the instructions and/or certificates to the City Clerk within ten (10) calendar days of the date the instructions and/or certificates are submitted or distributed under the California Elections Code." As I read this, the statement regarding who is covered by this includes not only the proponent and signature gathering professionals included in California Election Code sections 9607-9610, but also anyone mentioned in any "successor sections." I tried to find if there was a legal definition of "successor sections" that would mean either sections of the code that follow section 9610 or future revisions of these sections and could find neither. This means tome that the term "successor sections" could mean any section after 9610, thus any group discussed in other code sections would fall under the law being voted on Tuesday, opening a rather wide door and possibly including volunteer signature gatherers. Now consider if the elimination of the language in the Election Code regarding whether or not signatures remain valid is important. I argue that it is and is probably the whole point of this exercise. Since the City Clerk has absolute election power and she will be deciding if a) this is done right and b) what the penalty is, she will have the absolute ability to invalidate signatures, and a lot of them, if she decides to do so. If you think this is a theoretical concern, consider that Ms. Brown has previously rejected factual ballot arguments submitted by opponents to city council supported projects/propositions and required them to be re -written in a watered down way or risk being completely rejected. She has circulated those same ballot arguments throughout the city for review, an action which presumably allowed the opposition to preview our arguments and tailor their responses. She is very closely aligned with the Gang of 4. The Gang of 4 is well aware that another initiative is being considered by Line in the Sand and if this is passed, will thus have the power to allow us to collect signatures and then potentially invalidate the whole process after the signatures are turned in. Alternatively, Ms. Brown could use this power to use up some of the 30 days allowed for referendums in the future if she decided that what was submitted did not meet her standards. Recall that Mr. Peotter, Muldoon and Duffield have already shown no compunction regarding subverting our constitutional rights during the Museum House referendum by requiring 3700 pages be included in the referendum petition. Since the best predictor of future actions are past actions, this change to the Newport Beach municipal code is extremely concerning to me. It seems to me that the City of Newport Beach would do best to leave well enough alone and continue to operate under the very functional laws of the California Election Code as they currently exist, especially as NO laws were broken during the recall of Mr. Peotter despite the erroneous statements of the City Attorney. Thank you, Susan Skinner Sent from my Wad RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 June 26, 2018, City Council Item 24 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 24. Newport Beach Voter Protection; Rescission of Resolution 2018-8 Relating to Subpoenas The recommendations in this item seem very poorly conceived to me. Regarding proposed Ordinance No. 2018-12 (recommendation "b") 1. The proposed ordinance strangely grafts new language onto the end of Newport Beach Municipal Code Chapter 1.26. a. That chapter was itself added to the NBMC with Ordinance No. 2018-1, which was introduced as Item 3 at the Council's February 13, 2018, meeting. b. That chapter has to do with electronic filing of FPPC-required forms. The present language has nothing to do with that, and does not belong in Chapter 1.26. 2. The proposed language seems to have to do exclusively with misuse of the signatures collected, and, as such, does nothing to remedy the initially alleged problem, which, as understand it, was the apparent forging of signatures by a paid circulator (in violation of the sworn statement by that circulator already provided to the Clerk with each petition). a. The staff report and ordinance assert the paid circulating company involved in the recent recall may not have been in possession of all the statements regarding misuse of signatures required by Elections Code Sections 9607 and 9609. However, the sections cited only say they impose duties on the circulators of an initiative petition. ii. The staff report does not make clear what makes these sections applicable to a recall (or referendum) petition. That is not to say they aren't applicable, but the ordinance does not make clear why they would be, making the intended scope of the ordinance hard to fathom. b. They also do not make clear if there is a suspicion that, because of the absence of written documentation in the recent recall, signatures of Newport Beach voters were actually misused, giving rise to the need for this legislation. c. They likewise do not make clear how having extra copies of statements on file with the City Clerk would prevent abuse, any more than the signed verifications on the petitions themselves seems to have prevented abuse of the trust placed in one of the circulators who signed them. June 26, 2018, Council Item 24 Comments - Jim Mosher Page 2 of 2 3. The sections of the Elections Code cited in the proposed ordinance are in the "General Provisions" chapter, making them applicable to petitions for state and county as well as local measures. a. It seems unlikely all circulators of statewide petitions will be aware of the local rules (to the extent municipalities are even allowed to enact special petitioning rules — which I rather doubt they can since this would seem to be an area fully occupied by state law) b. Is it the intent of the City to attempt to invalidate statewide petitions based on violation of the local rules? Or merely to find and prosecute instances of misuse of the signatures collected (which seems an expensive proposition)? Regarding the Rescission (recommendation "c") Regarding the rescission of Resolution No. 2018-8, if the City has no intention of making any further use of the powers conferred by it, then I'm not sure I understand why the Council needs to take action. But if action is needed, since when can the substance of something enacted by resolution be altered by a mere action obscurely noted in the Council minutes? Wouldn't it take a new resolution to repeal an existing resolution in whole or in part? As a somewhat random example, see Item 7 from the Council's June 12, 2012, meeting (adopting Resolution No. 2012-47 to rescind Resolutions Nos. 86 - 2 and 86- 9). RECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 Item 24 Brown, Leilani From: Susan Skinner <seskinner@me.com> Sent: Monday, June 25, 2018 2:19 PM To: City Clerk's Office Subject: Fwd: Regarding item #23 Ms. Brown, I have noticed that correspondence to the city council@... EMail is often delayed in going into the agenda package for review by the general public and so am forwarding this to you. Thank you, Susan Skinner Sent from my iPad Begin forwarded message: From: Susan Skinner <seskinner(a,me.com> Date: June 25, 2018 at 9:48:49 PM GMT+1 To: CityCouncil&newportbeachca.gov Subject: Regarding item #23 Dear City Council: I would like to register my object to item #23, the proposed charter amendment requiring voter approval of certificates of participation (COP). I am out of town and am unable to get my iPad to open all attachments to the agenda, so may be missing some pieces of information in my letter (sorry). As I articulated at the last council meeting, there is no other jurisdiction in America who has self restricted COPS in this way and there is certainly a reason for this. Doing so unnecessarily closes an avenue of flexibility in financing large projects and will likely actually drive up the cost when contractors must bid projects months and months in advance of actually signing a contract. By definition, a COP does not increase tax costs, but is planned to come out of an existing budget much like my mortgage cost is planned into my own personal budget. I understand that you will have an exception for emergencies, which I appreciate, but how do you define emergency? Will the slowly rising sea level that will threaten Balboa Island be an emergency? If not, do you think that most of the rest of Newport Beach will vote to spend money to raise the sea wall? If not, are you prepared to take the cost of this out of general funds? Restricting COPs in this way simply ties the hands of future councils in ways that they will not thank you for and should not be done. If you must make this decision, I would ask that the limit be at least 50 million or higher and be indexed to inflation. The decisions that you make should be in the best interested of the residents rather than your own political careers. This decision is not. Thank you, Susan Skinner Sent from my iPad Received After Agenda Printed June 26, 2018 Item No. 24 From: Bill <williamcool@sbcglobal.net> Sent: Monday, June 25, 2018 10:06 PM To: Dixon, Diane Subject: Item #24 Dear City Council Member Dear City Council Member Diane B. Dixon Tuesday's City Council Meeting "Item #24 (1.26.050) appears to limit citizens' ability to participate in the three "direct democratic" methods known as the "Initiative;" "Referendum;" and "Recall." This measure does not appear to be necessary and is apparently being pushed because a hired petition person broke the law in a recent recall against Councilman Peotter. I refused to sign the recall petition because I believed the recall was both unnecessary and unwarranted, but just because one hired person broke the law doesn't mean the city council should take revenge against all of the city's citizens. The initiative, referendum and recall are all protected by the state's constitution. If the city attempts to make it harder to use these methods of direct democracy then it is making a huge mistake. Please don't let this happen. Thank you. William Cool Received After Agenda Printed June 26, 2018 Item No. 24 Subject: FW: Proposed so-called NB Voter Protection Ordinance From: iskinnermd@aol.com [mailto:iskinnermd@aol.com] Sent: Monday, June 25, 2018 8:54 PM To: City Clerk's Office <CityClerk@newportbeachca.gov> Subject: Proposed so-called NB Voter Protection Ordinance Dear Mayor Duffield and Members of the Council: I am writing regarding the proposed ordinance titled "Newport Beach Voter Protection." This proposed ordinance has come to the Council as a result of a professional petition circulator who is alleged to have forged signatures on the petition to recall Councilman Scott Peotter. Interestingly, the proposed ordinance before you on Tuesday doesn't even address that issue. Instead, the California Elections Code sections that are referenced in the draft ordinance before you and that will be added to our Municipal Code are all focused on assuring that the signatures on petitions are not used for any purpose other than to qualify a proposed measure for the ballot. The state Code is very clear on that issue and we all support it. I suggest you read the state Codes yourselves and see if you are interpreting them the same way that I do. I think this proposed ordinance is trying to be a solution for which there is no known problem in our City. No one is saying the professional signature gatherer misused the signatures for some other purpose and neither did the recall committee misuse any of the signatures. I have to say I am a little offended that you would think so ill of our residents if that's what has prompted this draft ordinance. If there is something I am missing about all of this, I apologize, but I think this ordinance is totally unnecessary and I am concerned it could be misinterpreted to require far more than the state Codes do. For instance, state Code Section 9609 requires a signed statement to be submitted to the proponents of an initiative petition from the professionals and others. State Code Section 9610 requires the signed statement of circulators also to be submitted to the proponents in advance of soliciting signatures. Having to also submit everything mentioned above to the City Clerk, not just the statement required by state Code 9608 (if that is the way it is being interpreted) would give private information to the City Clerk prior to the final submission of any completed petition. Let's just say it might be of great interest to certain persons to know in advance who the circulators will be. After what the thugs did to circulators while signatures were being collected for the Museum House referendum a couple of years ago, it makes one a little cautious about these things. Lastly, please keep in mind that for voters to exercise their constitutional right of redress in the form of a referendum petition, voters have only 30 days to gather a lot of signatures. If anything in this ordinance ends up delaying the start of signature gathering (as was experienced with the Museum House petition -- due to its size), it limits those constitutional rights. It is my sincere hope that you will not let that happen again. Constitutional rights are very precious. Please re -think this ordinance and either deny it or postpone it to allow more thought about the consequences prior to passage. I think the California Elections Code does all the things that you would want done to assure the voters protections we all support. Thank you in advance for giving consideration to my concerns. Nancy Skinner Received After Agenda Printed June 26, 2018 Item No. 17 and 24 From: Melinda <nbseely@aol.com> Sent: Tuesday, June 26, 2018 11:43 AM To: Dixon, Diane; Avery, Brad; Duffield, Duffy; Muldoon, Kevin; Herdman, Jeff; Peotter, Scott; O'Neill, William Cc: Kiff, Dave; hseely@seelylaw.com Subject: City Council Meeting Tonight Dear Mayor and Council Members: We are concerned about actions you appear to be ready to take at the Council Meeting tonight. We refer to changing the rules for petition gathering within the CNB. I believe this is unnecessary and a further abridgement of our rights as citizens to be involved in the City affa i rs. We also protest removing Diane Dixon from the Finance Committee to be replaced by Scott Peotter. We have yet to learn that Mr. Peotter has special expertise in the realm of finance that would prove to be more of a benefit to the Committee than Councilmember Dixon who has the benefit of understanding what has already been addressed by the Committee. Melinda and Hall Seely 2833 Carob St. Newport Beach 92660 June 26, 2018 Agenda Item No. SS1 and 24 Received after agenda printed Nelson, Jennifer From: Kiff, Dave Sent: Thursday, June 21, 2018 1:58 PM Subject: FW: Draft Charter Amendment Language Follow Up Flag: Follow up Flag Status: Flagged For the record. From: Robert McCaffrey [mailto:rtmccaffrey@yahoo.com] Sent: Thursday, June 21, 2018 10:25 AM To: Kiff, Dave <DKiff@newportbeachca.gov> Subject: Re: Draft Charter Amendment Language Dave, Thank you for sending this draft. I have the following comments: 1. The vote threshold should be 2/3rds, consistent with Proposition 13. 2. There should be language that defines the intent of the measure such as "the intent of this ordinance is to restrict indebtedness of city and insure that the voters approve debt for large municipal projects." Such intent language protects taxpayers in the event of ligtigation. Thank you for consideration of these comments. O On Jun 19, 2018, at 3:33 PM, Kiff, Dave <DKiff(a newportbeachca.gov> wrote: Dear Neighbors — A number of you have inquired about the possibility of a charter amendment relating to voter -approval on debt going on the November 2018 ballot. The Council will consider this item at a Study Session on Tuesday, June 26`h, starting at 4:30 p.m. If the Council desires, they could also act on it formally that evening at the night session starting at 7:00 p,m., once a key detail is filled in (the dollar amount/threshold). I am providing this draft amendment language to you all as a courtesy in advance of our usual release of information on Thursday afternoon, given the level of interest in this issue. As you can see, it is a PDF and I purposefully left comments in the margin so you can see what is existing language and what is added — ie. the entirety of Subsection (b) is new and proposed to be added (if Council goes this way). If you have any questions, you can direct them to me.