When the City Attorney Acts as the Mayor’s Attorney, Not the Peoples’ Attorney

ABSTRACT: At the City Council Meeting on September 9, 2008, City Attorney Don Freeman made introductory comments regarding the City’s actions with regard to Carmelite Susan Page’s request for the removal of her black acacia tree. City Attorney Don Freeman’s comments are transcribed; a REFERENCE link to his comments is provided. COMMENTS regarding the words, actions and/or inactions of City Attorney Don Freeman and the City’s treatment of Susan Page with respect to her request for her black acacia tree removal are presented.

AGENDA
Regular Meeting
Tuesday, September 9, 2008

VIII. Public Hearings

If you challenge the nature of the proposed action in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing.

B. Consideration of an appeal of a decision by the Forest and Beach Commission approving the removal of a 30-inch diameter black acacia at a property at 2922 Santa Lucia Avenue. The appellant is Sue McCloud, property owner of the home next door, on the east side.

City Attorney Don Freeman:

“Sue McCloud just read, Mayor McCloud just read the title of the particular item this evening.”

“I want to make a few introductory comments. First of all, there’s a supplemental packet that has been passed out, I think each of the council members has it before them, you’ll notice in the supplemental packet that there are some highlights that are done in yellow. I want to assure the public and everyone else that those were done by the appellant, not done by city staff.”

“As you are aware anyone that does have a conflict of interest, must step down and leave the room, those are our new ethics rules. In addition to that, in order to ensure that there’s a, how shall I say this, that it’s impartial, that it is fair, that everybody gets a fair hearing, anybody that has a conflict also is not entitled to be able to communicate with staff regarding the item or to actually do anything else, but because this deals with the particular individual who actually owns the property as well next door, actually that person is giving up a right to actually appear before the city council and to make a presentation.”

“What we are trying to do here is to ensure for again the applicant, the appellant and the general public that we have a clean and open and fair process for everybody involved and we’ve taken great pains to do that, to ensure that nobody has been able to try to influence the staff or any of the elected or appointed officials this evening.”

REFERENCE:
Regular City Council Meeting Video
September 09, 2008
Beginning Time 01:38:50 – 01:41:09 Ending Time

COMMENTS:
• Either City Attorney Don Freeman was being dishonest with the public or he was uninformed about the “City’s” unfair and partial process regarding Susan Page’s application to the Forest and Beach Commission for tree removal and Mayor Sue McCloud’s appeal of the Forest and Beach Commission's unaimous decision to the City Council.

• Herewith are highlights of the “City’s” treatment of Susan Page with respect to her request for her black acacia tree removal on her property, as follows:
• Susan Page’s initial application to the Forest & Beach Commission was repeatedly placed on agendas, only to be removed without cause several times over several months.
• Sue McCloud’s appeal of the April 2008 Forest & Beach Commission’s unanimous decision approving the removal of Page’s acacia tree should have been on the May 2008 City Council Agenda, per Municipal Code; it was delayed until the September 2008 City Council Meeting. City Clerk/Assistant City Administrator Heidi Burch wrote that Page’s attorney Stephen Beals asked for it to be pulled from the May 2008 agenda, but when asked for written confirmation, the City failed to produce any evidence that Beals requested the item be pulled from any agenda.
• The City Council Agenda Packet (September 2008) included highlighted portions by Sue McCloud advocating her position. Additionally, at the meeting, a Supplemental Packet was distributed to Council Members at the meeting with highlighted portions. City Attorney Freeman expressly stated that the City was not responsible for the highlighted documents, that Sue McCloud highlighted the documents herself. Question: If the “City” was so concerned about the perception and reality of impartiality, then why didn’t the City prepare clean, non-highlighted documents for the Agenda Packet? Note: The City failed to respond to the aforementioned question.
• At that City Council Meeting, Susan Page, through her attorney, agreed to six conditions, which were included in the final vote of the City Council (3-1) upholding the Forest and Beach Commission’s decision approving the removal of the acacia tree. The first Tree Removal Permit was issued on September 17, 2008 with the agreed upon conditions. Then the next day, September 18, 2008, the Permit was voided per letter from Heidi Burch, which read, “Your tree permit has been revised to more accurately reflect Council action taken on September 9, 2008.” Later, City Administrator Rich Guillen wrote to Attorney Stephen Beals that the “reason for voiding the permit related to a minor change in the conditions of the approval that resulted after further review of the hearing minutes.” The second Tree Removal Permit had six conditions different in language from the conditions agreed to by Susan Page at the meeting and voted on by the Council. Question: Why didn’t City Attorney Don Freeman intervene and promptly make the City reissue a Tree Removal Permit as originally issued on September 17, 2008?

• If the City Attorney had acted as the Peoples’ Attorney, then City Attorney Don Freeman would have intervened and made certain that the process was fair and impartial by taking the following actions:
• City Attorney Don Freeman should have intervened when the “City” repeatedly delayed Susan Page’s application for tree removal to the Forest and Beach Commission without cause.
• City Attorney Don Freeman should have intervened when the “City” delayed Mayor Sue McCloud’s appeal of the Forest and Beach Commission decision to the City Council in violation of the Municipal Code.
• City Attorney Don Freeman should have made certain that clean, non-highlighted documents were copied for the Agenda Packet and disallowed Sue McCloud’s supplemental packet distributed at the City Council Meeting since it was introduced after the Agenda Packet had been prepared.
• City Attorney Don Freeman should have expedited the issuance of Susan Page’s Tree Removal Permit and made certain the original Tree Removal Permit was not voided and other Conditions not approved by applicant Susan Page and voted upon by the City Council were not attached to the second Tree Removal Permit.

• In short, throughout the process, Sue McCloud abused her position as mayor by directly and/or indirectly influencing the process with the intent of effecting an outcome in her favor. Therefore, prior to making introductory comments at the City Council Meeting, City Attorney Don Freeman should have informed himself of the facts in this case, intervened as the peoples’ attorney and made certain that Sue McCloud was prevented from influencing and corrupting city employees and the process.