Monday, August 25, 2014

JOHN HANSON Plaintiff, v. CITY OF CARMEL-BY-THE-SEA; and DOES 1 through 100, Defendants, CASE NO. M128436, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY, ANSWER OF DEFENDANT CITY OF CARMEL-BY-THE-SEA

ABSTRACT: In JOHN HANSON Plaintiff, v. CITY OF CARMEL-BY-THE-SEA; and DOES 1 through 100, Defendants, CASE NO. M128436, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY, the ANSWER OF DEFENDANT CITY OF CARMEL-BY-THE-SEA document. filing date August 18, 2014, is embedded; the text is reproduced.
Defendant City of Cannel-by-the-Sea, ("Defendant" or "City'·) hereby responds to the unverified Complaint of Plaintiff John Hanson ("Plaintiff') as follows:
1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant generally denies each and every allegation set forth in the Complaint.
2. Defendant further alleges the following separate and distinct Affirmative Defenses to the causes of action alleged in the Complaint:
FIRST AFFIRMATIVE DEFENSE
Plaintiffs Complaint, and every cause of action contained therein, fails to state facts sufficient to state a cause of action.
SECOND AFFIRMATIVE DEFENSES
Plaintiffs claims, and each of them, are barred by the applicable statutes of limitation.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or in part, by the doctrine of waiver.
FOURTH AFFIR1v1ATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or in part, by the doctrine of unclean hands.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or in part, by the doctrine of laches.
SIXTH AFFIRMITIVE DEFENSE
Plaintiff is estopped from asserting any of the claims against Defendant contained in the Complaint by reason of his own acts, omissions, representations and courses of conduct.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or in part, because the actions respecting the subject matters in the Complaint were undertaken in good faith, with the absence of discriminatory and/or malicious intent to injure Plaintiff, and constitute lawful, proper and justified means to further the purpose of engaging in and continuing the City's affairs.
EIGHTH AFFIRMITIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or in part, as a result of Plaintiffs failure to exhaust his administrative remedies .
NINTH AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or in part, because Defendant has not interfered with any protectable property interest alleged in the Complaint.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or part, because the relief sought would improperly interfere with Defendant's discretionary authority.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are subject to setoff, offset, and/or recoupment, including, but not limited to, for moneys paid to Plaintiff that exceeded any amounts to which he was entitled.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs claims, and each of them, are barred, in whole or part, because he was an at-will employee of the City.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff's claims, and each of them, are barred, in whole or in pru1, by the privileges and immunities applicable to public agencies.
FOURTEENTH AF'FIRMATIVE DEFENSE
Plaintiff's Complaint is barred, in whole or in part, by the doctrine of after-acquired evidence.
FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiff has failed to mitigate his damages, if any, as required by law.
SIXTEENTH AFFIRMATIVE DEFENSE
To the extent Plaintiff has suffered physical or mental injuries-including "emotional distress"-because of Defendant's conduct, any such damages suffered by Plaintiff are within the exclusive jurisdiction of the Workers' Compensation Appeals Board by operation of California Labor Code section 3200 et seq.
SEVENTEENTH AFFIRMATNE DEFENSE
Plaintiff's claims, and each of them, are barred, in whole or in part, because Plaintiff ratified, consented, and/or acquiesced to the conduct about which he now complains.
WHEREFORE, Defendant prays as follow:
1. For entry of judgment in favor of Defendant and against Plaintiff;
2. That Plaintiff take nothing by way of his Complaint;
3. That Defendant be awarded costs of suit herein;
4. That Defendant be awarded its attorney fees and costs incurred in defending this suit in accordance with applicable law; and
5. For such other and further relief as this Court may deem just.
DATED: August 18, 2014
STRADLING YOCCA CARLSON & RAUTH
A Professional Corporation
By ______________________
Jeffrey A. Dinkin
Robert D. Dominguez
Attorneys for Defendant City of Carmel-by-the-Sea

Hanson v. City of Carmel Answer of Defendant City of Carmel-By-The-sea
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY
JOHN HANSON Plaintiff, v. CITY OF CARMEL-BY-THE-SEA; and DOES 1 through 100, Defendants
CASE NO. M128436
ANSWER OF DEFENDANT CITY OF CARMEL-BY-THE-SEA

Sunday, August 24, 2014

COMMENTARY The Logical Consequence of Mayor Jason Burnett’s Logic: All City Council Members Should Resign

But calling for Stilwell’s ouster is misguided and misplaced, according to Mayor Jason Burnett, who said Bayne should hold the city council accountable for whatever she finds objectionable.

“She is asking the city council to hold our staff, most notably our city administrator, accountable for decisions that we, the city council, have made,” he said. “I don’t think it’s ethical.”

Instead, it’s the council’s job to “look at the totality of the decisions and judge whether the community is being well served.”


Source: Hundreds sign petition calling for Stilwell to resign
But mayor says things are ‘going well’ at city hall
By MARY SCHLEY, The Carmel Pine Cone, July 25, 2014, 1A & 24A

The aforementioned comments by Mayor Jason Burnett, repeated on numerous occasions subsequently, show a mayor engaged in misdirection - an intentional form of deception in which the attention of the public is focused on one thing in order to distract its attention from another. To wit, the mayor states that it is unethical for the city council to hold the city administrator “accountable” for the decisions of the city council when the fact of the matter is the city council sets policy, the city administrator implements policy and the city council’s duty and responsibility is to hold the city administrator accountable for his record and actions implementing policy.

Furthermore, instead of seriously responding to the specific actions identified on the PETITION TO TERMINATE THE CURRENT CITY ADMINISTRATOR, Mayor Jason Burnett purposely misidentifies the problem as merely “a serious communications problem.” Thus, the City’s hiring of a Public Relations and Media Consultant, the City’s promise to implement a public records act response standard higher than the California Public Records Act, the City’s creation of Carmel City News Blog, et cetera. So, the mayor is not only dismissive about the opinions of constituents, the mayor is attempting to manipulate public opinion about the predetermined policy of supporting City Administrator Jason Stilwell that is counter to what the Petition signers demand of their city government representatives.

Finally, if the Carmel-by-the-Sea mayor and city council have no intention of honoring their duties and responsibilities to their elected positions by holding City Administrator Jason Stilwell accountable for his past actions as articulated in the PETITION TO TERMINATE THE CURRENT CITY ADMINISTRATOR, then by Mayor Jason Burnett’s own logic, Mayor Jason Burnett and City Council Members Ken Talmage, Victoria Beach, Carrie Theis and Steve Dallas should all resign given the reported fact that on Monday, August 4, 2014, “the council gave it unanimous support to Stilwell.

Written & Published by L. A. Paterson

CITY COUNCIL SPECIAL MEETING AMENDED AGENDA, August 25, 2014 and AGENDA, August 14, 2014


*AMENDED AGENDA
CARMEL-BY-THE-SEA CITY COUNCIL
Special Meeting
Monday, August 25, 2014
AGENDA
CARMEL-BY-THE-SEA CITY COUNCIL
Closed Session and Special Meeting
Thursday, August 14, 2014

Saturday, August 23, 2014

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE STEVEN MCINCHAK Petitioner/Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, JASON STILWELL, CITY ADMINISTRATOR OF THE CITY OF CARMEL-BY-THE-SEA, SUSAN PAUL, ADMINISTRATIVE SERVICES DIRECTOR OF THE CITY OF CARMEL BY-THE-SEA; and DOES 1 through 50, inclusive, Defendants, STIPULATION RE REMAND OF CASE, DISMISSAL OF DEFENDANTS JASON STILWELL AND SUSAN PAUL AND WITHDRAWAL OF ANTI-SLAPP MOTION

ABSTRACT:  STIPULATION RE REMAND OF CASE, DISMISSAL OF DEFENDANTS JASON STILWELL AND SUSAN PAUL AND WITHDRAWAL OF ANTI-SLAPP MOTION document, including EXHIBIT A and EXHIBIT B, filing date 08/15/14, is embedded. This Stipulation is entered into and between plaintiff Steven McInchak (“Plaintiff”) and defendants Jason Stilwell (“Mr. Stilwell”), Susan Paul (“Ms. Paul”) and the City of Carmel-by-the-Sea (“City”) (referred to herein collectively as “Defendants”), through their undersigned counsel. The parties hereby stipulate to the following:
WHEREAS, Plaintiff filed a Motion to Remand Case to State Court on August 1, 2014;
WHEREAS, Defendants filed a Motion to Strike Certain Claims of Plaintiff’s Petition-Complaint Pursuant to California Code of Civil Procedure Section 425.16 (“Anti-SLAPP Motion”) on August 1, 2014;
WHEREAS, Defendants find it agreeable to remand this action to state court and withdraw the Anti-SLAPP Motion in exchange for Plaintiff agreeing to (i) dismiss Mr. Stilwell and Ms. Paul entirely from this action, without prejudice; and (ii) amend Plaintiff’s Petition-Complaint filed on June 4, 2014 (“Original Complaint”) to delete certain language alleging violations of federal law and the U.S. Constitution.
THEREFORE, IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. Plaintiff and Defendants agree to an order of the Court remanding the above-captioned action to the Superior Court of California, Monterey County.
2. Within 20 court days after the federal court clerk issues the order of remand to the clerk of the Superior Court of California, Monterey County (“Notice of Remand”), Plaintiff shall dismiss Mr. Stilwell and Ms. Paul from the above-captioned action, without prejudice, by filing requests for dismissal substantially in the form of Exhibit “A” and Exhibit “B” attached hereto.
3. Within 20 court days after the Notice of Remand, Plaintiff shall file an amended complaint in this action, which amended complaint shall have deleted all language related to federal law and the United States Constitution located in paragraph 18, at page 7, lines 25 through 26 of the Original Complaint but shall otherwise be identical to the Original Complaint.
4. Within 20 court days after the Notice of Remand, Defendants shall withdraw their Anti-SLAPP Motion without prejudice.
5. Nothing in this stipulation or Defendants’ withdrawal of their Anti-SLAPP Motion shall be construed as a waiver of any right, cause of action or defense by any party.
6. This stipulation may be executed in multiple parts, each of which when so executed shall be deemed an original and all of which taken together shall constitute one and the same stipulation.
DATED: August 15, 2014 STONER WELSH & SCHMIDT
By: /s/ Michelle Welsh
Michelle Welsh
Attorney for Plaintiff
STEVEN MCINCHAK
DATED: August 15, 2014 STRADLING YOCCA CARLSON & RAUTH
A Professional Corporation
By: /s/ Allison E. Burns
Jeffrey A. Dinkin
Allison E. Burns
David C. Palmer
Attorneys for Defendants
CITY OF CARMEL-BY-THE SEA; JASON STILWELL; SUSAN PAUL

STIPULATION RE REMAND OF CASE DISMISSAL OF DEFENDANTS STILWELL AND PAUL AND WITHDRAWAL OF ANTI-SLAPP MOTION...

STIPULATION RE REMAND OF CASE, DISMISSAL OF DEFENDANTS JASON STILWELL AND SUSAN PAUL AND WITHDRAWAL OF ANTI-SLAPP MOTION

GOVERNANCE COMMITTEE FOR THE MONTEREY PENINSULA WATER SUPPLY PROJECT, REGULAR MEETING, AGENDA & MINUTES August 25, 2014


AGENDA PACKET, REGULAR MEETING
GOVERNANCE COMMITTEE FOR THE MONTEREY PENINSULA WATER SUPPLY PROJECT
August 25, 2014

DRAFT MINUTES
GOVERNANCE COMMITTEE FOR THE MONTEREY PENINSULA WATER SUPPLY PROJECT

August 25, 2014

Thursday, August 21, 2014

City Administration Launches ‘Carmel City News’ Blog

ABSTRACT:  “WE ARE really excited,” city administrator Jason Stilwell said in an email to all city employees Thursday morning. “For the past two years, we have all worked together to make progress in the City of Carmel.” He was announcing the launch of www.CarmelCityNews.com.  “As a team member, you know about the changes and the progress. However, outside of city hall, not many really know about what has taken place,” Stilwell continued. “We’ve been a bit too focused on getting things done and not focused enough on sharing that progress with our neighbors in Carmel.”  The blog, he said, will keep locals “informed on everything that’s happening in our community,” including updates and changes in the city, arts and events, and goings on at the police department. “It’s clear to us that residents of Carmel consistently want to know more as we work to make the necessary changes and fix the problems we face,” Stilwell wrote. He asked employees to provide information about their departments for inclusion on the blog, and said it also includes a “Pic of the Week” competition “and a section dedicated to dogs and dog lovers called ‘Wags n’ Tags,’” to offer a “lighter side,” according to the news article entitled "City launches its own news service," The Carmel Pine Cone, August 22, 2014.
City News, The Arts, Village Business, Our Village, Crime Blotter, Wags ‘n Tags and Weekly Pic are featured sections. City News features Carmel-by-the-Sea Restroom Project Update (posted August 20, 2014), Carmel City Council Seeks Public Input on Information Technology (posted August 20, 2014), California Wildfires Report (posted August 12, 2014), Carmel-by-the-Sea Community Services (posted August 12, 2014), Carmel-by-the-Sea Fourth Quarter Report (posted August 11, 2014), Carmel-by-the-Sea Key Initiatives (posted August 11, 2014), Community Conversation with Carmel City Administrator Stilwell (posted August 11, 2014), Carmel Community and Employee Recognition (posted August 11, 2014), Community Planning and Building Hours (posted August 11, 2014), Conde Nast Selects Carmel as 2nd Best Small City (posted August 11, 2014) and Drought Update (posted August 11, 2014). And The Arts features Forest Theater Guild Summer Film Series (posted August 12, 2014), Carmel Public Library Foundation Programs (posted August 11, 2014) and PacRep Announces “Shrek the Musical” (posted August 11, 2014).  Our Village features Carmel-by-the-Sea’s First Fire Truck (posted August 21, 2014), Carmel-by-the-Sea Garden Club Update (posted August 20, 2014), Carmel-by-the-Sea Farmers Market (posted August 11, 2014), Carmel by the Sea Upcoming Events (posted August 11, 2014) and Beach Cleanliness (posted August 11, 2014).

REFERENCE:
City launches its own news service
By MARY SCHLEY, The Carmel Pine Cone, August 22, 2014, 1A & 9A

Proceeding Number A.12-04-019 ADMINISTRATIVE LAW JUDGE’S RULING UPDATING SCHEDULE

ABSTRACT:  Re: In the Matter of the Application of California American Water Company (U 210 W) for Approval of the Monterey Peninsula Water Supply Project and Authorization to Recover All Present and Future Costs in Rates, ADMINISTRATIVE LAW JUDGE’S RULING UPDATING SCHEDULE document is embedded. The updated schedule is set forth below.

                        CPCN Track
Certificate of Public Convenience and Necessity
                       CEQA Track
California Environmental Quality Act


No later than
January 30, 2015
DEIR circulated for
comment
15 days after
issuance of
DEIR (no later
than February
17, 2015)
Cal-Am to file and serve a common outline for legal and policy briefs, after consultation with parties




45 days after
issuance of DEIR
(no later than
March 16, 2015)
Comments on DEIR due
60 days after
issuance of
DEIR (no later
than April 1,
2015)
Common Outline
Opening Briefs
filed and served on
legal and policy
issues


75 days after
issuance of
DEIR (no later
than April 16,
2015)
Reply Briefs filed
and served on legal
and policy issues


July 2015
Phase 1 of the
Proceeding
submitted with the
publication of the
FEIR
July, 2015
(no later than
July 30, 2015)
FEIR published
3rd Quarter
2015
Phase 1
Proposed Decision
addressing
certification of FEIR
and issuance of
CPCN


3rd Quarter
2015
Target for
Commission Action
on Phase 1
Proposed Decision



Importantly, “The CPUC Energy Division has encountered delays that we believe will make it impossible for us to meet the scheduled 3rd quarter 2014 publication date for the Monterey Peninsula Water Supply Project (MPWSP) Draft Environmental Impact Report (EIR).  Energy Division accordingly requests a four-month extension of the schedule to allow the MPWSP EIR team to complete the necessary analyses and adequately address the technical issues surrounding the project. With the extension, publication of the MPWSP Draft EIR would occur in January 2015 and certification of the Final EIR in July 2015.”

Monday, August 18, 2014

To Serve and Protect — the City Administration

In The Carmel Pine Cone news article entitled “Lawyer forces P.D.’s hand in McInchak case,” by reporter Mary Schley, August 1, 2014, Schley asked “WHY DID the city announce last week it was dropping the investigation of IT manager Steve McInchak?” Answer: “According to McInchak’s attorney, Richard Rosen, the move came because he was getting ready to ask a judge to order the city to return McInchak’s property seized by the city during a raid of his house more than a year ago,” according to Schley. Arguably, though, a more important question to answer is "WHY DID Carmel Police Chief Mike Calhoun issue a statement in late July 2014 that the McInchak Criminal Investigation was closed due the forensic examiner being “unable to provide sufficient information to proceed further with the investigation” when the Carmel Police Department actually closed the McInchak Criminal Investigation on December 11, 2013?"  To wit, “On December 11,2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only,” according to Administrative Services Director Susan Paul, DECLARATION OF SUSAN PAUL IN SUPPORT OF DEFENDANTS' SPECIAL MOTION TO STRIKE CASE NO. 5:14-cv-03084 (HRL).

And with regard to IT Manager Steve McInchak’s employment status with the City of Carmel-by-the-Sea, on July 10, 2014, attorney Jeffrey Dinkin, Stradling Yocca Carlson & Rauth, one of three attorneys representing Defendants City of Carmel-by-the-Sea, City Administrator Jason Stilwell and Administrative Services Director Susan Paul, in STEVEN MCINCHAK Petitioner/Plaintiff, v. CITY OF CARMEL-BY-THE-SEA, JASON STILWELL, CITY ADMINISTRATOR OF THE CITY OF CARMEL-BY-THE-SEA, SUSAN PAUL, ADMINISTRATIVE, stated that the City expects to take final action "on his employment status in the very near future," according to reporting in The Monterey County Herald news article entitled “Carmel transfers IT chief's suit to federal court Transfer criticized by attorney for IT chief Steven McInchak,” by Larry Parsons.  Yet the McInchak Administrative Investigation continues with no announcement from the City about IT Manager Steve McInchak's employment status.

And finally, in The Carmel Pine Cone news article entitled “Mayor: IT investigation found big problems” by Mary Schley, November 29, 2013, Mayor Jason Burnett stated the following:

The details emerged as a thorough investigation into the city’s 20-year-old computer systems and their use “is largely complete,” Burnett said.

Burnett said it was because they had to be, but with the investigation coming to a close, more can be said about what was found.
“It’s the city council’s and my job to communicate with the community, and I realize we need to do a better job doing that. We have an ongoing investigation that’s now wrapping up, so we’re able to say more today than we were a few days or a few months ago,” he said. “We have intentionally held off until we could be at a stage where we could have this conversation.”

“I made a commitment to communicate as much as possible about what’s going on at city hall. There were more limitations on what we could say a few months ago than there are now, and I anticipate there will be more we can say in a month,” Burnett said.
He also said city administrator Jason Stilwell, who has been overseeing the investigations and suspensions, “is doing the job that we want him to be doing.”
“And I think we’re doing the job that the community wants us to do, but if people disagree with that, hang that on me,” he said. “If we saw what we’ve seen and we didn’t take action, that would be a problem.”

Therefore, in late November 2013, Mayor Jason Burnett stated that “I anticipate there will be more we can say in a month,” namely December 2013. Yet, Mayor Jason Burnett not only did not say anything substantive on the McInchak Criminal Investigation in December 2013, Burnett has not commented on the McInchak Criminal Investigation being closed in December 2013 when Carmel Police Chief Mike Calhoun issued the statement in July 2014 about the McInchak Criminal Investigation being closed with no charges against IT Manager Steve McInchak.

Given that Carmel Police Chief Mike Calhoun not only delayed the public announcement about the McInchak Criminal Investigation being closed for seven months, but Calhoun has yet to announce that  the McInchak Criminal Investigation was closed in December 2013; given that City attorney Jeffrey Dinkin stated that the City expects to take final action on McInchak’s employment status in the “very near future,” yet the McInchak Administrative Investigation continues with taxpayer funded check payments to forensic examiner Mark Alcock; and given that Mayor Jason Burnett stated "I anticipate there will be more we can say in a month,” yet Burnett has not made any substantive comments on the McInchak Criminal Investigation since November 2013, it appears that Police Chief Mike Calhoun, attorney Jeffrey Dinkin and Mayor Jason Burnett are serving and protecting the city administration, not the public.

Saturday, August 16, 2014

COMMENTARY It's About Accountability, Stupid!

It's NOT about Travel+Leisure magazine readers rating Carmel No. 3 of “World's Best Cities for Romance” (2014)

It's NOT about Condé Nast Traveler readers voting Carmel-by-the-Sea #2 of “The 10 Best Small Cities in America” for “cultural attractions, stylish hotels and charm.” (2014)

It's NOT about Condé Nast Traveler readers voting Carmel-by-the-Sea #7 of “The Best American Cities for Foodies" (2014).

It's NOT about Condé Nast Traveler readers voting Carmel #5 in the “Top 10 Cities in the Unities States” (Readers’ Choice Awards 2013).

It's NOT about THE CITY OF Carmel-By-The-Sea CITY COUNCIL POLICY PUBLIC RECORDS RESPONSE POLICY, Exhibit “A,” adopted by the City Council at the August 5, 2014 Regular City Council Meeting.

It's NOT about the Carmel City Council vowing “to improve communications with the public” and adopting “a revised PRA policy putting Freeman in charge and declaring requests would be fulfilled as quickly and as completely as possible.

It's NOT about City Attorney Don Freeman telling “a group of about 20 residents, business people and public officials that he and city staff will make a great effort to respond to people’s requests for public documents as quickly — and with as little fuss — as possible, just like the fire department responds to emergencies” on Monday, August 11, 2014.

It’s about ACCOUNTABILITY!

It's ABOUT the PETITION TO TERMINATE THTE CURRENT CITY ADMINISTRATOR and the 539 petition signers who “after giving careful consideration to the policies and practices currently being created and implemented by the City Administrator, Mr. Jason Stilwell, urge that the City Council request and accept Mr. Stilwell’s resignation."

It is ABOUT the City Council holding City Administrator Jason Stilwell accountable for his record of not honoring the California Public Records Act (CPRA) (California Government Code Section 6250 et seq). It is ABOUT City Administrator Jason Stilwell not honoring “the policy of the City of Carmel-by-the-Sea that the CPRA be construed broadly in favor of public disclosure consistent with the law.” Furthermore, it is ABOUT two Petitions for Writ of Mandate filed against the City of Carmel-by-the-Sea, namely CARMEL COMMUNICATIONS, INC., Petitioner, v. CITY OF CARMEL-BY-THE-SEA, and Does 1 through 10, inclusive, Respondents. (Case No. M125118) and TRANSPARENCY IN GOVERNMENT, an unincorporated association, Petitioner, v. CITY OF CARMEL-BY-THE-SEA, and Does 1 through 10, inclusive Respondents. (Case No. 128766), alleging violations of the California Public Records Act; both finally settled, the former without monetary compensation and the later with monetary compensation of $1,800 in attorney’s fees and $435 in court costs. It is ABOUT City Administrator Jason Stilwell overseeing public records redacted, delayed and denied to Transparency California, Thomas Peele, Watchdog columnist Bay Area News Group and members of the public.
To wit: It is ABOUT…
“The creation of policies reflecting a lack of transparency regarding disclosure of public information as demonstrated by:
a. The refusal to produce documents in a timely fashion and in the format prescribed by law. (Resulting in the community being identified as having the "most recalcitrant government officials in the State").
b. The hiring of lawyers outside the community, at great taxpayer expense, to handle requests for public information that have been handled by City staff for decades.”


It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for his record of “terminations or resignations of the newly hired City Clerk and about a dozen City employees with hundreds of years of institutional and historical knowledge, most of whom have been replaced by out-of-town individuals who have no vested interest in the community, at suspiciously high salaries and benefits, two of whom commute weekly from their homes in Redondo Beach and Ventura.”

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for his decision to deaccession City art valued at more than a quarter million dollars and sold for $9,548 after a determination had been made a year earlier that it would be disadvantageous and not in the economic interest of the City to have an auction house sell the deaccessioned artworks.

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for his “Actions that have resulted in a number of lawsuits and unasserted pending causes of action, which expose the community to significant financial loss and litigation expense,” namely Steven Mclnchak, Petitioner/Plaintiff v. City of Carmel-by-the-Sea, Jason Stilwell, City Administrator of the City of Carmel-by-the-Sea, Susan Paul, Administrative Services Director of the City of Carmel-by-the-Sea and Does 1 through 50, inclusive, Respondents/Defendants, alleging Abuse of Discretion, Breach of Written Contract of Employment, Defamation, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress and JOHN HANSON, Plaintiff, v. CITY OF CARMEL-BY-THE-SEA and DOES 1 through 100, Defendants, alleging Discrimination in Employment, Wrongful Termination, Denial of Due Process Rights, Age-Based Discrimination in Employment-Disparate Impact, Breach of Contract and Wrongful Termination in Violation of Public Policy (Whistleblowing) against Defendant City of Carmel-by-the-Sea.

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for his “spending of approximately $274,000 on computer experts (including a forensic expert) to support claims of employee misconduct without any identified wrongdoing, despite assurances from the Mayor that such reports would be forthcoming no later than January 2014” and not informing the public the McInchak Criminal Investigation was closed in December 2013.

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for his “Violation of Municipal Code 3.12.530 re splitting of contracts to avoid the necessity of complying with the requirement that contract., in excess of $25,000 dollars, receive City Council approval, e.g. the Mark Alcock contracts,” totaling over $300,000 as of the June 2014 Check Register.

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for his “Failure to set priorities for the repair and reopening of the historic Forest Theater and the disposition of Flanders” prior to the emergency chains and padlock closure of the Forest Theatre and not signing a lease for the Flanders Mansion Property with a qualified applicant in 2013.

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for “The City budget has paid out funds to 4 out-of-town law firms when we have a City Attorney. This does not adhere to the City's local hiring policy. The new fiscal year budget of $24,000,000 appears top-heavy as it includes an Executive Assistant for the Mayor and City Administrator (a first), and since April 2012, an increase of 10 FTE's and projected for the new Fish /Cal year of about $500,000 for IT upgrades.”

It's ABOUT the City Council holding City Administrator Jason Stilwell accountable for “The projected costs of $900,000 to build a new two stall restroom at the south end of Carmel Beach at Santa Lucia.,” a policy of the city council, implemented by the city administrator.

It's ABOUT Mayor Jason Burnett and City Council Members Ken Talmage, Victoria Beach, Carrie Theis and Steve Dallas understanding that they are solely responsible for holding City Administrator Jason Stilwell accountable for his record; it is NOT about being dismissive about the concerns of Carmelites and it is NOT about making symbolic concessions to appease and assuage constituents as a substitute for the hard decisions required of a governing body made in the best short-term and long-term interests of the City, residents and visitors.

Written & Published by L.A. Paterson

Wednesday, August 13, 2014

Monterey Peninsula Water Supply Project, CEQA Environmental Review, CEQA Process Schedule, Draft EIR Publication ‘delayed "several months" beyond its September 30 public release date’

ABSTRACT: RE: STATE OF CALIFORNIA, PUBLIC UTILITIES COMMISSION, Monterey Peninsula Water Supply Project, CEQA Environmental Review, “The firm hired by the state Public Utilities Commission to conduct the project's environmental review said the draft report had been delayed "several months" beyond its Sept. 30 public release date. According to Monterey Peninsula Regional Water Authority executive director Jim Cullem, a representative from Environmental Science Associates called Friday with the news and also said the PUC's December hearings on the project would likely be delayed, perhaps for as long as three months,” according to reporting in The Monterey County Herald.  Additionally, "the Marina City Council has decided to hear Cal Am's appeal of the city Planning Commission's denial of a test well permit on September 3, 2014."

RELATED NEWS ARTICLES:
Monterey Peninsula officials have already submitted a confidential proposal to extend the approaching deadline for complying with the state-ordered cutback in pumping from the Carmel River set to take full effect at the end of 2016, and are expecting to receive a counterproposal from the state water board by the end of the summer,” according to reporting in The Monterey County Herald.

PUC ALJ Angela Minkin “ruled that the consulting firm preparing the project's draft environmental impact report would be delayed four months until the end of January. That is expected to push a final PUC decision back about six months to the middle of next year and likely will also delay final completion of the project.”
Source: Bid to relax Carmel River cutback order announced
By Jim Johnson, 08/15/2014

Could push back project schedule by three months
By Jim Johnson, 08/12/14

STATE OF CALIFORNIA
PUBLIC UTILITIES COMMISSION

Monterey Peninsula Water Supply Project

(Application A.12-04-019, filed April 23, 2012)

CEQA Environmental Review

Pursuant to CEQA Guidelines Section 15162, the CPUC has determined that a Subsequent EIR is the appropriate level of CEQA review for the MPWSP. The MPWSP EIR will provide a comprehensive description and evaluation of all proposed components (including the new proposed elements and previously analyzed components) as the "whole of the action." The MPWSP EIR may evaluate alternatives not previously considered in the previous CWP EIR. If it is determined through the scoping process that additional federal review is required, CPUC will coordinate with the appropriate agency to comply with the National Environmental Protection Act (NEPA).

CEQA Process Schedule

Public Release of Notice of Preparation
October 10, 2012
EIR Scoping Period (30 days)
October 10, 2012 - November 9, 2012
Public Scoping Meetings
October 24, 2012 and October 25, 2012
Draft EIR Publication
3rd Quarter 2014
Public and agency comment period
Comments will be due 45 days following release of DEIR
Public hearings on Draft EIR
4th Quarter 2014
Publication of Final EIR
1st Quarter 2015
EIR Certification & CPUC Decision
1st Quarter 2015

Sunday, August 10, 2014

Neil Shapiro, Attorney for Transparency in Government: ‘This was never about money, it was about open government and making the city follow the law or pay the consequences’

ABSTRACT:  On Tuesday, August 5, 2014, attorney Neil Shapiro, representing Petitioner Transparency in Government, an unincorporated association of individuals, filed a PETITION FOR WRIT OF MANDATE in TRANSPARENCY IN GOVERNMENT, an unincorporated association, Petitioner, v. CITY OF CARMEL-BY-THE-SEA, and Does 1 through 10, inclusive Respondents, Case No.: 128766 on August 5, 2014 in SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY. The PETITION alleged violations of the California Public Records Act, Government Code §§ 6250 el seq. (the "PRA''), specifically “Respondent City failed to perform its duties in that regard by refusing to provide Petitioner access to, or copies of, documents requested.” “On July 10, 2014, Petitioner submitted to City by email a request (the "Request") "pursuant to the provisions of the Public Records Act" for ' access to and copies of (1) all requests made pursuant to the Public Records Act and received by the City of Carmel during the period January 1, 2014, through June 30,2014, (2) the responses, if any, to each of the requests referenced in ( 1 ), and (3) records reflecting the amount of legal fees incurred by the City of Carmel with respect to the requests referenced in (1), individually and in the aggregate. Two days later, on Thursday, August 7, 2014, “the city had provided Shapiro all of the documents — about 80 public records requests in all. They also gave him the data on the amount of tax dollars the city spent to comply with the requests. City attorney Don Freeman reached a deal with Shapiro to pay him $435 in court costs and $1,800 in attorney’s fees. In exchange, Shapiro will drop the suit,” according to reporting in The Carmel Pine Cone. “Shapiro maintained in the lawsuit that the city’s delay in complying with the Public Records Act was a “stalling tactic” that lacked legal justification and violated the law. In speculating as to Carmel’s motive in withholding the information, Shapiro had said he believed officials did not want to disclose how the city responded to the six months’ worth of PRA requests his clients requested. “I have doubts that the City of Carmel is following the Public Records Act with any great frequency,” Shapiro said Thursday before the agreement was reached. “And the best way to determine whether it’s playing straight is to look at the requests [the city has] received and by looking at its responses.” The PETITION FOR WRIT OF MANDATE document is embedded.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
TRANSPARENCY IN GOVERNMENT, an unincorporated association, Petitioner, V. CITY OF CARMEL-BY-THE-SEA, and 15 Does 1 through 10, inclusive Respondents.
Case No.: 128766
PETITION FOR WRIT OF MANDATE

SUMMARY

WHEREFORE, PETITIONER PRAYS AS FOLLOWS:

1. That this Court issue an Alternative Writ of Mandate, commanding Respondent City to allow the inspection of, and upon payment of the statutory fee to provide copies of, all requests made pursuant to the Public Records Act and received by the City of Carmel during the period January 1, 2014, through June 30. 2014, (2) the responses, if any, to each of the requests referenced in (1), and (3) records reflecting the amount of legal fees incurred by the City of Carmel with respect to the requests referenced in (1 ), individually and in the aggregate, or to show cause before this Court at a date and time to be specified by the Court why it has not done so, and why it should not be compelled to do so; and

2. That on the return of the Alternative Writ and the hearing of this Petition, this Court issue its Peremptory Writ of Mandate commanding Respondent City to allow inspection of and,upon payment of the statutory fee to provide copies of, all requests made pursuant to the Public Records Act and received by the City of Carmel during the period January 1, 20 I 4, through June 30,2014, (2) the responses, if any, to each of the requests referenced in (1). and (3) records reflecting the amount of legal fees incurred by the City of Carmel with respect to the requests referenced in (1 ), individually and in the aggregate.

3. For an award of attorney's fees to Petitioners pursuant to Government Code §6259;

4. For costs of suit incurred herein; and

5. For such other and further relief as this Court deems just and proper.

REFERENCE:
CITY HIT WITH ANOTHER LAWSUIT OVER ACCESS TO PUBLIC RECORDS, By KELLY NIX, The Carmel Pine Cone, August 8, 2014, 15A & 24A

Saturday, August 09, 2014

Forensic Examiner Mark Alcock, Administrative Services Director Susan Paul & City Administrator Jason Stilwell: Conflicting Accounts on the Genesis of the McInchak Investigation

ABSTRACT:  In UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE, STRADLING YOCCA CARLSON & RAUTH, Attorneys for Defendants, CITY OF CARMEL-BY-THE SEA; JASON STILWELL; SUSAN PAUL, filed a DEFENDANTS’ NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE CERTAIN CLAIMS OF PLAINTIFF’S PETITIONCOMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 (ANTI-SLAPP MOTION TO STRIKE); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on August 1, 2014. It states, in part, “Defendants Jason Stilwell, City Administrator (“Mr. Stilwell”), Susan Paul, Administrative Services Director (“Ms. Paul”) and the City of Carmel-by-the-Sea (“City”), (referred herein collectively as “Defendants”), hereby make this special motion to strike (“Anti-SLAPP Motion”) the “Fourth Cause of Action for Defamation” (“Defamation Claim”), the “Fifth Cause of Action for Intentional Infliction of Emotional Distress” (“Intentional Infliction Claim”), and “Sixth Cause of Action for Negligent Infliction of Emotional Distress” (“Negligent Infliction Claim”) alleged in the Complaint-Petition filed by Plaintiff Steven McInchak (“Plaintiff”) on June 4, 2014 (“Complaint”).” Conflicting accounts pertaining to the genesis of the investigation into IT Manager Steve McInchak’s alleged wrongdoing are presented from the SEARCH WARRANT SUPERIOR COURT OF CALIFORNIA County of Monterey, Declaration of Susan Paul in Support of Special Motion to Strike and Expert to get $103K for McInchak, audit of city computers, By MARY SCHLEY, The Carmel Pine Cone, September 13, 2013.  Interestingly, "On December 11, 2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only," according to Administrative Services Director Susan Paul, Declaration of Susan Paul in Support of Special Motion to Strike.

Forensic Examiner Mark Alcock’s Account on the Genesis of the McInchak Investigation (as communicated to Affiant, Rachelle Lightfoot, Detective for the Carmel-by-the-Sea Police Department, dated 6-5-13):

On Tuesday, 05-28-13, at approximately 1000 hours, I was contacted by Commander Paul Tomasi of the Carmel Police Department in regards to possible misconduct of another city employee, Steve Mclnchak. Commander Tomasi told me that Mclnchak was suspected of using his position as Information Systems/Network Manager to access sensitive information from the city's computers. Commander Tomasi advised that the city had hired an outside Forensic Examiner to gather proof and facts. He asked that I contact the examiner and initiate an investigation.

On Wednesday, 05-29-13, At approximately 1100 hours, I met with Forensic Examiner, Mark Alcock, in my office. During introductions, Alcock told me that on 02-27-13, he was retained by the city of Carmel to do an examination of Mclnchak's work computer.

Alcock told me that his investigation started on 03-06-13, when he went to Mclnchak office located at Vista Lobos (Torres & 3rd) to search his desk top computer. He was accompanied by City Human Resources Director, Susan Paul and Police Chief Michael Calhoun.

Alcock told me that he had been working with Mclnchak under the ruse that he was conducting an audit of the City's computer system and servers,…

Source: SEARCH WARRANT
SUPERIOR COURT OF CALIFORNIA
County of Monterey
Warrant No.7682
Filed June 13, 2013

Administrative Services Director Susan Paul’s Account on the Genesis of the McInchak Investigation:

On or about January 22, 2013, I began receiving reports from various City staff members regarding their city computers, which reports caused me to become concerned regarding the integrity of the City's computer network, including the security thereof.

On or about February 27, 2013, the City retained computer forensic expert Mark Alcock ("Mr. Alcock") to survey the City's computer network and investigate the cause of the reported issues.

In or about March 2013, I became aware of possible misconduct by the Plaintiff including but not limited to possible unauthorized access to City computers, unauthorized access to electronically stored files on City employees' computers and unauthorized transmittal of confidential information from those computers to himself ("IT Misconduct").

Thereafter, two separate investigations of the IT Misconduct took place; one into Plaintiffs possible criminal activity ("Criminal Investigation"), and the second into the IT Misconduct and related job performance of Plaintiff in his capacity as an employee of the City ("Administrative Investigation").

On or about May 30, 2013, I gave Plaintiff a written reprimand concerning conduct issues unrelated to the IT Misconduct (the "Reprimand").

On December 11, 2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only.

I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct.

Executed this 31st day of July, 2014

Source: DECLARATION OF SUSAN PAUL IN SUPPORT OF DEFENDANTS' SPECIAL MOTION TO STRIKE
DEFENDANTS’ NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE CERTAIN CLAIMS OF PLAINTIFF’S PETITIONCOMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 (ANTI-SLAPP MOTION TO STRIKE); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
STRADLING YOCCA CARLSON & RAUTH
Attorneys for Defendants, CITY OF CARMEL-BY-THE SEA; JASON STILWELL; SUSAN PAUL
DATED: August 1, 2014

QUESTIONS:
  • Who are the “various City staff members” who allegedly reported to Administrative Services Director Susan Paul “reports” which caused her “to become concerned regarding the integrity of the City's computer network, including the security thereof?” 
  • Hired on January 15, 2013, is it credible that less than a week later City staff members would “report” to Administrative Services Director Susan Paul information which caused her “to become concerned regarding the integrity of the City's computer network, including the security thereof?”
  • Since “On December 11, 2013, an information firewall was established that precluded the City from participating in the Criminal Investigation, limiting the scope of the City's involvement to the Administrative Investigation only,” why did the City pay Forensic Examiner Mark Alcock a total of $87,000 for CONTRACTUAL SERVICES-EXAMINER post-December 2013?  Notes: $18,000 Check 127921, 2/27/2014, $36,800 Check 128148, 4/11/2014 and $32,200 Check 128609 6/27/2014. Administrative Coordinators Leslie Fenton and Margi Perotti placed on leave October 2013; fired March 2014.
City Administrator Jason Stilwell’s Account on the Genesis of the McInchak Investigation:

But Stilwell said this week that contract was for Alcock’s “risk assessment” of the city’s system, not for his investigation into McInchak’s alleged wrongdoing. For that forensic work, Stilwell said, a second $25,000 contract was drawn.

“We originally brought Alcock on to survey our system, and we needed someone expert on technology to be able to do a risk assessment of our computer system and the network and applications, hardware, software and user support,” he said. “That was originally why he came in.”

According to Stilwell, a second contract was drafted later, after Alcock uncovered McInchak’s alleged nefarious computer activity. “We also needed his forensic services to support the investigation,” he said. “So we hired him to do that, too,” because the district attorney’s office did not have anyone available to do the work.


Source: Expert to get $103K for McInchak, audit of city computers, By MARY SCHLEY, The Carmel Pine Cone, September 13, 2013

NOTES: First Contract, dated February 25, 2013.

Second Contract dated May 5, 2013 “information technology consulting and assessment services.

Third Contract dated June 19, 2013 “appointing a computer forensic examiner,” who will “assist in the coordination of the investigation related to information technology.”

Source: Contracts with IT investigator raise questions, By MARY SCHLEY, The Carmel Pine Cone, September 27, 2013