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

TECHNICAL ADVISORY COMMITTEE (TAC) OF THE MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA) REGULAR MEETING CANCELLATION NOTICE August 18, 2014

Tac Mprwa Cancellation Notice 08-18-14

CANCELLATION NOTICE, REGULAR MEETING

TECHNICAL ADVISORY COMMITTEE (TAC)
MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA)
August 18, 2014

GOVERNANCE COMMITTEE FOR THE MONTEREY PENINSULA WATER SUPPLY PROJECT CANCELLATION NOTICE, REGULAR MEETING, August 20, 2014

Governance Committee for the MPWSP Cancellation Notice 08-20-14

CANCELLATION NOTICE, REGULAR MEETING
GOVERNANCE COMMITTEE FOR THE MONTEREY PENINSULA WATER SUPPLY PROJECT
August 20, 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

Desal draft EIR release delayed; impact on schedule uncertain

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 (See ALJ Ruling dated January 27, 2013) 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

MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA) REGULAR MEETING AGENDA & MINUTES August 14, 2014

Mprwa Final Agenda Packet 08-14-14

AGENDA PACKET, REGULAR MEETING
MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA)
August 14, 2014

MPRWA Minutes 08-14-14

DRAFT MINUTES
MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA)
August 14, 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.

Transparency in Government Petition for Writ of Mandate

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

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