Civil Procedures....

“Paper cannot wrap fire.”
- Old Chinese Saying

The newly-completed audit of Lindsay’s financial and material life is a stack of paper beautifully bound in the Brown Armstrong Accountancy Corp. covers, dark green and firm. The numbers inside are given meaning by words, a limited but revealing problem/answer conversation between the auditors, who are experts in the legal aspects of the management of civic resources, and our own city staff, whose expertise lies elsewhere. It says a lot.

But the audit is the tip of the iceberg. It did not discover all of the malfeasance, just enough to put us over the brink. The problems underlying the audit, the problems of ignorance and arrogance, of graft and corruption, of cronyism and nepotism among the small inside circle who think They Are Lindsay - those problems are fire in the belly of many of this community’s residents.

A lovely man stopped me in the library last Tuesday, the day of the city council meeting, and asked the essential question: What is going to happen? Is anyone going to be held responsible, or are they just going to get their hands slapped and go on? It is the essential question. If we leave it in trust with the current city council and their hand-picked staff, that’s all that’s going to happen.

Before he asked the question, however, he started by introducing himself as a man who grew up here as a boy, whose parents came to Tonyville in the 1920s. He himself left for 30 years, then came back after retiring from the San Diego Zoo. He was soft-spoken and respectful, chose his words carefully, seemed thoughtful and compassionate. Not a rabble rouser, just a concerned citizen who is finding out, like many of us, that our situation is so much worse than we’d imagined. I invited him to come to the city council meeting that evening, but he declined, saying like so many of us, that he didn’t know if he could understand what goes on.

If he had come, he’d have seen the firestorm the council was expecting two weeks before. Then (at the September 13 meeting,) six uniformed officers were on duty. Three were stationed inside the council chambers, two guarded the only door, and another kept watch in the overflow room and escorted citizens there who wanted to speak to the chambers at the proper time. But on Sept. 27, only Lt. Clower was on duty, assisted by two other officers who escorted the visiting accountant to his car after his presentation and then left.
Although there was considerable input from the citizens who have been organizing the recall effort (including myself regarding inappropriate items in the consent calendar that needed public discussion,) the real volcanoes were two men not associated with the recall effort. One was a former insider, Girard Smolsky, one of the two building inspectors who were fired in December (although Girard was able to hold on to his position until he could retire in June having 10 years with the city.) The other was an outsider, Thomas Young, the auditor from Brown Armstrong who has been in charge of this project. Though both men spoke as respectfully as possible given the circumstances, there was fire in their bellies, too, and it erupted at moments where the truth had no alternative but to come out.

The audit points to lapses in accountability, but Girard knows where the bodies are buried. “I just want you to know,” he began “that I’ve been contacted by the DA’s office and that I am cooperating fully.” He then gave a quick summary of his involvement with most of the redevelopment projects as an indication of the volume and spread of his knowledge. “I inspected those houses with the fraudulent loans,” he said and other projects that have been identified as wasteful or “non-compliant” in the audit.

And then his fire broke loose, and he said “And this conflict of interest stuff - it’s everywhere. Every one of you has conflict of interest,” pointing to the council, and then to some staff. “And most of you don’t even live here,” he added, naming staff names. “You take your big salaries and go home somewhere else.” Then he regained some of his composure, and just as his 3 minute limit was being called, he concluded “I just didn’t want you to be blindsided, but you’ll be hearing from the DA soon.”

The auditor, Thomas Young, was noticeably agitated even during his short presentation for the Redevelopment Agency meeting prior to the public comment period. He spoke seriously about the negative quality of this audit: that there was enough missing information to prevent his firm from being able to issue an opinion whether the audit and financial statements are true representations of the City’s financial condition, and that from what information was provided, the City is clearly a going concern. “Whether you will be pushed into Chapter 9 or not is totally dependent on what the lenders do,” he said firmly. When one council member asked what other cities do in this situation, he replied “We don’t find this in other cities. This is very unusual.”
In name of democratic process, the City had invited members of the public to submit written questions for the auditor at that meeting. Three of us did. But rather than digesting the questions and summarizing them, or even assembling them into a list, they just handed him copied pages and asked him to answer. “How do you want me to do this?” he asked, incredulous. “Just read them out loud and give your answers,” they said.

There were seven pages of questions, three handwritten and my four, closely-spaced typed ones. Most of our questions were lawyerly, looking for the truths underneath the figures, and they placed him in the most difficult position a person could be in: having to speak truth to power and guard his (powerful) client’s privacy privileges at the same time. I have never seen anyone sweat so admirably in my whole life.

His fire broke loose when he came to the question about the Hippo Slide, and whether that was the only wasteful expenditure they found, or just an outrageous example. “It’s just an example!” he blurted out, then said “I could go on and on. McDermont - there’s waste of $500 thousand, and the downtown...,” referring to the micro business loans. Then he stopped, looked down at the papers on the podium, and went back to the questions.

Another question was (and I only know this because it was mine): “Do you think the City staff and Council fully understand the threat of repayment provisions of grants if we do not comply with the regulations attached to them? Do you think we might have more rude awakenings ahead like the misuse of TCAG Measure R funds created? Could one of these push us over the edge of insolvency?” To which he replied with steam as well as fire “Absolutely!”

Then he settled back down to the job at hand, which was getting this over with and getting out of there as soon as possible. The council asked a few questions, including when the next year’s audit (for 2010-2011, already behind us) would begin, which will not be until Jan. or Feb. of 2012. And then the two officers escorted him to his car. I hope he made it home alright - we need people like Thomas Young in this world.

Between them, Girard and Thomas delivered a one-two punch to the Council that left Mayor Ed reeling. He stumbled through the rest of the agenda, which included approval for the application for an Air Quality grant to purchase of 3 more hybrid police cars, scrapping 3 Crown Victorias as part of the bargain. What they didn’t discuss is whether the city has other vehicles that are more used and more polluting than the three planned for demolition. (Actually I think someone tried to ask that question, maybe Danny Salinas, but it went nowhere.)

When I questioned Chief Wilkinson about the requirements on the grant and whether they included Fair Employment Practice regulations (which he appears not to understand even in the slightest,) his eyes took on a kind of gleam and he assured me everything was fine. Later he announced the appointment of a new (interim) assistant city manager, whose name I did not catch because he mumbles. Did anyone see the job announcement for that position?

Let us go back to the question from the lovely man in the library. Is anybody going to be held responsible for the past misuse of funds? Here’s another one: Is there any way to get the city to stop spending our money on whatever fancy tickles their eye? I think there is. It’s called Civil Procedures Code 526a.

I don’t exactly know what I’m going to do with this, but I just want everybody to know that there might be some recourse, and some way to regain some of the money that has been squandered without paying for it through our taxes for the next three decades. I’m just going to quote it in full. Read it slowly - if you mind the commas and keep track of the clauses, you’ll be able to see what the law has provided for the likes of us.

“526a. An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.

An action brought pursuant to this section to enjoin a public improvement project shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law.”

It is true that the audit could be used to keep the City’s spendthrift, self-interested plans between covers. But it also can be used to document a past history in which much of city’s spending was not only fiscally irresponsible, but socially irresponsible to the majority of the town’s residents. We didn’t need new French Colonial street lights and signs that look like they’re fresh from the Caribbean; we didn’t need a brand-new Wellness Center or a three-story indoor sports complex that only people from afar can afford. We didn’t even really need a new library or lighted palm trees that change colors every 15 seconds. And we really didn’t need to be rewarding those people with outrageous salaries who tried to make over this town in their own image.

There are civil procedures for people like us. Let us use them.