Payton Perspective: Antioch Mayor Harper oversteps authority, limiting Council Members in getting matters heard

He’s been acting unilaterally, implementing an unapproved policy

Payton Perspective logoBy Allen Payton

In California, a separately elected mayor in a General Law City, as we have in Antioch, the mayor has only three more powers than the rest of the council members. Those are to lead meetings, sign documents on behalf of the city and nominate council members and residents to city or regional committees and commissions. That’s it.

Yet, recently it was discovered that Antioch Mayor Wade Harper has been overstepping his authority by implementing a new practice of requiring at least three council members to agree, before an issue any of them bring up, can be placed on a council agenda.

At the end of the January 13th council meeting, during Council Communications, Mayor Pro Tem Lori Ogorchock requested that an item for hiring three more Community Service Officers using Measure O funds be placed on the January 27th council meeting agenda. Harper told her she had to get a consensus of the rest of the council to do so. He also told her to meet with City Manager Steve Duran, first.

Yet, in an email on Friday, January 23, Harper admitted it’s not a requirement.

To my emailed questions of when and why this practice started, how can the council avoid the Brown Act Open meeting law by following it, and where is it in Robert’s Rules of Order, which the Antioch City Council has historically followed, to support such a practice, Harper wrote,

By stating that a council member needs the agreement of at least three council persons to have an item placed on the agenda we assure that no one Councilmember acts unilaterally. The city manager usually looks for a nod from at least three council members. I was correct in stating that our practice has been to get agreement from at least three councilmembers. A consensus is great, but not required. Recommendation to meet one on one city manager has no Brown Act violations and is standard practice. We as councilmembers meet with the city manager regularly and can ask questions. These are private discussions between individual councilmembers and the city manager. There are times when the city manager will find it necessary to include additional information in his weekly report to the Council, which is posted on the City web site to share to the community.”

The mayor’s approach and thinking were wrong. A council member does not act unilaterally by having an item placed on the agenda. The action occurs when a majority vote of council members.

So by implementing this new, unauthorized practice, Harper has actually been the one acting unilaterally. He has been preventing each of the council members from properly representing the people who elected them, by placing a matter of interest or concern on a future council meeting agenda for discussion by both the council and public, with a possible vote by the council.

The results of such a practice are it stifles debate and puts any one council member at the mercy of a majority voting block to accomplish what they were elected to do and get things done while in office. Here’s the kicker, until I had learned about this two weeks ago, it appears that no one questioned the practice, including the other council members, two of whom have only been serving since 2012 when Harper was elected Mayor. So, they’ve all been limited in their ability to properly represent “we the people” during that time, most likely unknowingly.

Who came up with this new practice – because it was never put into practice in the previous 18 years of our city’s history – and how long it has been followed, since Harper was elected mayor is unknown, as Harper, Duran and Nerland failed to answer that question after three emails were sent to them all. But, it appears this practice has been going on for the two years he’s been mayor, and without a vote of the council to approve it as a resolution or policy.

Antioch City Clerk Arne Simonsen, who is one of the city council’s parliamentarians, as is City Attorney Lynn Tracy Nerland, agreed to review the council’s votes over the last two years since Harper was elected mayor and confirmed that there had been no vote on the practice.

Previous mayors and council members agree that this practice was new, under Harper.

In an email response from Simonsen, he stated “During my 8 years on the Council, Mayor Freitas allowed any council member to request an item to be placed on a future agenda. Then it would be up to the Mayor and City Manager to determine when it would be best to put in on a future agenda.” Harper, Duran and Nerland were all copied on his email.

In conversations with the last three mayors that have served Antioch, both Jim Davis and Don Freitas said they were surprised by the new practice. Davis called it ridiculous. Both of them used the approach that any council member could propose an agenda item and it was up to them when meeting with the city manager to determine, based on time management and proper prioritization of issues, when to place it on a council meeting agenda.

The third former mayor, current Councilwoman Mary Rocha, said she couldn’t remember what the practice was when she served in the position from 1996 to 2000 and suggested I contact the League of California Cities.

However, I served on the council with Rocha for the first two years of her term as Mayor and can tell you the practice was the same then and during all four years of my term, as under Davis and Freitas. Both of them were elected in 1998 and served during Rocha’s final two years as mayor. Freitas stated the practice was the same during those years, as well.

I contacted the League of Cities to find out if there is a standard practice by city councils, throughout the state, for council members placing items on an agenda. But there is not.

Eva Spiegel, Communications Director with the League wrote in an email, I checked with our general counsel again and he says that he is not aware whether there is a standard practice for California cities – it likely varies from city to city, and certainly a city council can change what the current practice with a majority vote.”

However, again, the city council never took a vote to approve this new practice.

So, the mayor is correct in his explanation that it’s not required, unless and until it’s put on the agenda and a majority of council members vote to approve it, which is rather ironic. But, as of Monday night, Harper had not yet responded to my last email to him on the subject, sent last Friday, asking him since a consensus wasn’t required “then why did you tell Lori she had to achieve that before having her item placed on the agenda?” and “What are you going to do to rectify this situation and inform the rest of the council?”

When reached for comment, Ogorchock said she had not heard from the mayor about the issue, as of Saturday. Calls to both Council Members Monica Wilson and Tony Tiscareno, asking if they were aware this practice was not authorized and not a requirement, went unanswered, on Monday.

Hopefully the mayor will let the council members know at Tuesday night’s council meeting.


9 Comments to “Payton Perspective: Antioch Mayor Harper oversteps authority, limiting Council Members in getting matters heard”

  1. Marty Fernandez says:

    Thank you Allen. Many of us have been talking about this. One more reason to add to the list. It is time this Mayor stop making up rules as he goes along. The important people in Antioch are its citizens not its mayor and it is time he understands this. This is not a communist country Mr. Harper.

    The fact Tiscareno and Wilson did not respond to your question upsets me since I backed both of them. I expect more.

    Ms Nerland lives in her own little world so I expect nothing more from her. She needs to be replaced. It would save us a lot of money to stop farming out our work.

    • Eileen says:

      Marty, you said it all. Although I’m not surprised by Wilson’s non-response. I did have more hope for Tiscareno.

  2. Carole Harrison says:

    Allen, thanks for challenging this practice of requiring three Councilmembers to agree before placing an item on the City Council meeting agenda. It seems stifling enough to me that the item must be reviewed with the mayor and the city manager to determine priority and the timing for when it is placed. But I can understand that in order to help streamline City Council meetings. With all the recent press regarding the First Amendment lately, this is a very timely article.

    • Eileen says:

      Carol, well said. But I’m not sure about the need to streamline the meetings. I feel “streamlining” is being used by the council as an excuse to limit participation.

  3. Eileen says:

    Harper wants to be a little king. Outrageous. Thank you for keeping us informed.

  4. Julio says:

    Eileen: Harper’s problem is that he is little.

  5. Rich says:

    I have to agree with so many comments on here. First, VERY controlling. Second, when Harper came on to the scene he wanted to take over, which is the reason for the recall. Everyone keeps saying he doesn’t have the power. This, in and of itself is a clear indication he has changed things and gotten away with it – to the point of collusion between himself and the City Attorney. If collusion is there, how far does it go? There is all ready proof the “City” withheld vital information which could certainly have changed the outcome of an election. Something that will never be know because it is all in place. I contend that Measure O, which passed by less than 600 votes could very well have been voted down if the voters were aware that the City was withholding the fact that it had received not one, not two, but three property tax payments in amounts ar exceeding expected and all BEFORE November 4th. Any prudent entity would have brought this city back to a 40 hours full-service city back in May or even June – not wait until January, 2015! Look up the word collusion. Then check out malfeasance. We need to have an attorney who can handle this or some how get one to convene the grand jury. This type of illegal actions need to be brought to the surface.

  6. Julio says:

    I have thought many times in the last few years, 4 or 5 that the grand jury should investigate a few things. However, I think the city has been fairly open about the amount of money in property tax payments. I do pay attention to council meetings. We don’t get a lot of what the county collects.

    Mr. Duran runs this city and the city council make no mistake. He controls them with an iron fist. Mrs Nerland also. Nerland and Duran are preventing this city from moving forward because they refuse to take these landlords and ordinance violators to court. It needs to be done NOW!

    • Julio says:

      In addition Rich, we needed Measure O to give the city an arm on these landlords. With out it the dead end would still exist. It is just too bad the city didn’t think far enough ahead to have what was needed in place. They had the money. They have probably bought 50 new trucks in the last month and I’d like to know the kick back on that.

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