Santa Ana’s Sliding Scale on Disclosure Forms

The Santa Ana City Council takes great pains to paint itself as running a city government that’s open and transparent.  And the city, at it’s December 16 meeting, voted to not re-appoint Planning Commissioner Phil Bacerra on the grounds he hadn’t disclosed –in writing — all of his ex-parte communications that Bacerra had previously reported verbally during Planning Commission meetings.

You can see the video of this action at this link; go to item 13A or the 56:08 portion of the meeting and its about 15 minutes long.

A quick point to make; Bacerra has completely complied with every form requested of him by deadlines provided.  There is considerable question as to the constitutionality of being required to submit back-dated reports of meetings that occurred prior to the Planning Commission passing a resolution requiring written ex-parte communications.  And in regards to Bacerra’s Form 700, though he is not required to do so because his employer is not based in the City of Santa Ana and does not do business in the city, Bacerra has disclosed his reportable income sources on his Form 700 as required by state law and governed by the FPPC.

The rule is pretty simple:

Officials listed in Gov. Code Sec. 87200 (e.g. boards of supervisors, city council members, planning commissioners, elected state officials, etc.), must report all investments and income as well as real property interests in their agency’s jurisdiction.

 

After more than two-and-a-half months of inquiry from TheLiberalOC, city planning commissioners Eric Alderete and Sean H. Mill have still not disclosed their employment/income statements as required by state law.  The latest form 700s for both men list calendar year 2013 when both men had different jobs than they hold today.  But in both their cases, Mill and Alderete work for organizations that do business in the city of Santa Ana and neither is exempt from disclosing their income on their statements of economic interests.  Disclosure rules are provided by the FPPC here at this link.

We initially contacted the city’s attorney Sonia Carvalho on October 9 to ask why this required information is missing from both commissioners Form 700.  She assigned it to someone on her staff citing a death in the family.  When no one from her office called after a couple of weeks, we contacted her again on November 9.  She said Ryan Hodge, a lawyer for the Planning Commission, would follow up.  Still nothing.  On November 24, Ms. Carvalho wrote back:

“Mr. Mill’s Form 700’s (sic) include disclosure of income from his title company employers over the years.  Mr. Alderete’s Form 700’s (sic) do not include disclosure of income from US Bank.  I am not personally aware of his employment status, but informed him of your inquiry and the FPPC requirements.”

The current Form 700 for both men does not include income disclosures.

We wrote back on December 8 seeking clarity as to why the income/investment disclosure still wasn’t provided for either planning commissioner.  Carvalho wrote back on December 9:

“I have contacted the Planning Commissioners and have advised them of the FPPC regulations regarding Form 700’s (sic).  The forms for each Commissioner are available on the city’s website-very transparent.  Questions about what has been disclosed, and why, should be directed to the Commissioners.  As City Attorney, I do not enforce FPPC regulations.”

We copied City Manager David Cavazos on the email and he responded. “I do encourage all of employees and commissioners to comply with the FPPC regulations and believe that we should make our commissioners aware of any concerns from members of the public or the media.”

The City Council then moved to not-reappoint Bacerra from his position on the Planning Commission.  Council member David Benavides, in the discussion portion, did a fine job of questioning Carvalho about the Form 700 disclosures and Bacerra’s compliance with the disclosures of his ex-parte communication — which we’ll emphasize here is done and completed and on deadline.

Planning Commissioner Sean Mill used the comments section in the New Santa Ana blog to address the issue of his Form 700 disclosure.

Sean Mill

I am thankful to the 5 members of the City Council that supported my reappointment for another four year term on the Planning Commission. It is a great honor for me to represent the citizens of Santa Ana in this capacity and will continue to do what I believe is best for all residents.

Sadly, once again, folks have created a faux controversy in order to attack my nomination. It is unfortunate that 2 members of the City Council carried this water and made allegations based on half-truths and all out distortions of the truth made by an angry out of town blogger.

The false claims that I am out of compliance in regards to the Form 700 were quickly put to rest by the City Attorney and City Clerk. I have met with the City Attorney in her office and spoken to the City Clerk on the phone and both have assured me that I am in compliance. I am quite sure Mr. Benavides knew I was too so I am not sure why he continue to raise the issue.

I would like to share with your readers the email that I sent to Mr. Reyna in regards to his allegations regarding my misuse of the City Seal. I see that you have included a picture from the event in question above and I refer to that in my email to Reyna. I felt that I should respond to these false allegations and set the record straight.

To: rreyna@santa-ana.org
Cc: Mayor, City Council, City Manager
From: Sean Mill

Tuesday, December 16, 2014 11:18PM

Councilmember Reyna,

I watched as you raised the issue of the use of the city logo as your argument in opposing my reappointment to the Planning Commission. I feel that it is important to clarify the facts regarding that before they are continually misrepresented by you and others.

The claim the “I” used the logo is false. The logo was inadvertently used on a flyer created by a graphics designer hired by Charles Armijo with whom I partnered with to host the event. At no time did I have creative control over the design of the flyer and Charles can attest to that. Once I was contacted about the logo and asked to remove it by someone at City Hall it was done so immediately.

The claim that the event was held for my personal financial gain is also false. Neither Charles nor I made a single dime from the event which was held at the Orange County Register. In fact all monies raised, I believe it was between $1500 and $2000, were donated to the Boys and Girls Club of Santa Ana. Feel free to check with them to verify this to be the case.

Finally, I am surprised you weren’t more familiar with the event given the fact that we actually had you speak to the attendees at the event, as did City Manager Cavazos. I have attached a picture from that day to refresh your memory.

I hope this puts to bed the fallacy that I brazenly used the city logo for personal gain in an obvious breach of the code of ethics. If you need help with any more facts about this feel free to contact me, Charles Armijo or the Boys and Girls Club of Santa Ana.

Have a nice evening and a Merry Christmas!!

Sean H. Mill

Well, Mill is wrong about a number of things here the first of which is I’m not an angry out-of-town blogger.  But let’s stick to some material facts:

1.  The city attorney has not determined that Mill, or Mr. Alderete, are in compliance.  All she has stated is that the information on their Form 700s posted on the city website is accurate and that she doesn’t enforce FPPC regulations but has advised both of them about the rules.  In the December 16 meeting, Carvalho reported to the council “it is the position of our commissioners that the forms (Form 700s) have been accurately completed. Those commissioners are signing those forms under penalty of perjury and those commissioners say their forms are correct.”  No where in this statement does Carvalho say she’s authenticated the completeness of the form for full compliance and disclosure.   She also admitted she hasn’t reviewed every form.  So what Mill said is either a lie or a misunderstanding of fact.

2.  The city clerk has not cleared Mr. Mill, or Mr. Alderete, of being in compliance with FPPC disclosures either.  She contacted us on December 23 with this email (we’ve bolded for emphasis):

Mr. Chmielewski,

I wanted to let you know that the document posted on the web is the most recent statement received and completed according to the facts provided by Mr. Mills. (sic)

If you have any other questions, please let me know.

Maria Huizar, Clerk of the Council 

 

No where does she say Mr. Mills is in compliance with FPPC regulations.

3.  While we’re delighted Mr. Mill helped raise $1,500 to $2,000 for the Boys and Girls Club of Santa Ana, this event was what’s known as a “lead generation” device designed to sign up more realtor prospects to use the services of Mill’s current employer — a Title Company.  It is very probable that Mill gets a commission check from new business resulting from these qualified leads.  We’ll also note that money raised came from those who attended the event — there’s no evidence Mill made any financial contribution to the Boys and Girls Club from his own pocket.  It’s classy to take credit for a charitable contribution made with someone else’s money.

4.  While Mr. Mill may not have had any creative control over a flyer used to promote the event, its questionable at best that he wasn’t aware the city logo was being used.  The phrase “ask forgiveness, not permission” comes to mind.

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After having listened to Mayor Pro Tem Vince Sarmiento opine on the importance of disclosure of Planning Commissioners, I think Mill missed something.  Sarmiento described the planning commission as a “quasi-judicial body.”

“The scrutiny of these commissioners is higher than it is for other commissions which are just in an advisory role,” Sarmiento said.  “We hold these (Planning Commissioners) to a very high standard.  If some commissioners are disclosing any economic interest…where council members and appointees to the council have to disclose where the origins of that revenue is coming from, assets that they hold, these things are reportable and they are mandated to us by state law.  I think if all commissioners are doing that, and I believe this commissioner (Bacerra) was given the opportunity to disclose and it wasn’t done, I understand and don’t hold anything personally against this commissioner…there are certain things we expect our commissioner to abide by just because it’s state law.  And if they can’t do that and they’ve been given the opportunity to do that after the fact…., and it still wasn’t done, you start to wonder why aren’t these reportable documents that are mandated, why aren’t they submitted.”

Sarmiento seems to be getting his form 700 and ex-parte communications disclosures mixed up in regards to Bacerra.  But in both cases, Bacerra has fully complied with all disclosures.  And Sarmiento opened the door to reconsidering Bacerra for reappointment.  Since it’s a 4-3 vote, Sarmiento actually holds Bacerra’s fate in his hands.

So now it’s time to find out if Sarmiento will place integrity and honesty over politics.  He’s mentioned, twice, a way for Bacerra to be reconsidered by the City Council for re-appointment seemingly contingent upon the completion of disclosure forms for ex-parte communications.  Those disclosure forms were completed and submitted long ago and Bacerra’s own Form 700 exceeds the disclosures required for a member of the Planning Commission.  Armed with this information, Sarmiento should change his vote to reinstate Bacerra as a planning commissioner if Benavides and Council member Roman Reyna agendize and second his nomination.  What Sarmiento ought to be asking is why his own Planning Commissioner hasn’t disclosed the source of his income on his Form 700.

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The biggest surprise of the video was watching Council member Sal Tinajero seem unaware of how substitute motion works.  He placed an item on the agenda for a vote.  Council member Benavides offered a substitute motion which was seconded.  By Roberts Rules of Order, the substitute motion gets precedence over an original motion.  And Tinajero seemed clueless about that.  Surprising since he has been on the council for 8 years now and should have that part down pat.