Antioch man’s lawsuit successful, forces City to return money from police to water, sewer funds

By Allen Payton

Not only were some candidates and ballot measures successful on Election Night, Tuesday, November 8th, one Antioch man was victorious in his battle for proper city budgeting. Proving you can fight city hall and win, real estate broker Mark Jordan forced the Antioch City Council to settle a lawsuit over what he claimed were the illegal transfers of money from the City’s water and sewer funds into the police department. As a result of the settlement, (jordan-v-city-of-antioch-settlement-agreement), approved on a unanimous 5-0 vote of the Council, a portion of the money will be repaid by the police department to the sewer and water funds.

According to City Attorney Michael Vigilia, “Council unanimously approved settlement. I reported it at the beginning of the open session of the meeting as required by the Brown Act.”

Asked why he filed the suit , Jordan responded, “I did it because it was wrong what was being done.”

“I also didn’t want to significantly hurt the City, financially. But as you read, if they try again, I will respond, again,” he warned.

“See (Antioch Police Chief Allan) Cantando’s deposition. (cantando0718depo)  He stated the Police Department provides no unique or special services to water or sewer. Period,” Jordan continued. “I know you were on this, too because I remember your article about the same time I stepped up.”

Background

In response to a question by Mayor Pro Tem Lori Ogorchock during a June, 2015 council meeting, city staff stated that $319,000 was being transferred each year from each of the water and sewer funds into the police department’s budget. A Herald editorial was written by this reporter, opposing the practice. Jordan warned the Council in late July that he would be taking action. Then, the following month, he filed a felony complaint against Mayor Wade Harper, the rest of the City Council City with the Contra Costa District Attorney’s office.

According to a previous Herald article about the matter, his felony complaint (Jordan Complaint.City of Antioch to DA) states, “All Citizens of the City of Antioch” are victims, gives the type of violation as “Illegal transfer of public Funds, et all” [sic] and the nature of complaint as “Violation of Oath of Office, Violation of State of California Constitution,” specifically Propositions 13, 26 and 218. Jordan claimed there was no connection between the collection of sewer and water funds paid for by Antioch ratepayers and spending them on police.

“I claim that the illegal transfers from the Antioch Water and Sewer Funds are a taking from the public without basis in law, legal nexus or legal justification and that this taking of public funds is public malfeasance and grand theft pursuant to Penal Code 487, a felony,” the complaint states. “A legal nexus is required by law and none exists.”

Jordan further claims that the transfer from the sewer and water funds to the police department budget amounts to a tax without a vote of the people.

“Also; that this transfer is a creation of windfall for the General Fund and is nothing short of a specific tax without voter approval as required by the State Constitution.”

He cited two lawsuits, one each against the City of San Juan Capistrano and the other against the City of Redding, California to support his argument.

Jordan then filed his lawsuit on February 16, 2016 stating the City’s practice violated state Proposition 218. In their response, the City denied that they were violating the law.

Settlement Details

However, during mediation held on October 19th before a retired judge, the City agreed to refund the water and sewer funds 25% of what had been transferred during Fiscal Years 2013, 2014 and 2015. In addition, 40% of the transfers budgeted for Fiscal Years 2016 and 2017 will be retained by the water and sewer funds, on a 60%-40% split between the two funds. Plus, the City agreed to pay Jordan’s attorney fees totaling $75,000.

The settlement, signed by Jordan on Wednesday, November 9th, and expected to be signed by Harper, today, Monday, November 14, 2016, requires the City to transfer $235,800 from the police department budget back into the water fund and refrain from transferring $316,320 from that fund, within 15 days. In addition, the City must return $157,600 to and refrain from transferring $210,880 from the sewer fund. The total impact to the police department budget as a result of the settlement is $920,600.

Neither side agreed to anything beyond those fiscal years and the settlement does not prevent future transfers from occurring, beginning with Fiscal Year 2018, nor preclude Jordan from suing the City and Council, again.

In addition to Cantando’s deposition, following are the additional depositions in the lawsuit, of City of Antioch Finance Director Dawn Merchant (merchant0718depo), Assistant City Manager/Public Works Director Ron Bernal (bernal0719depo), and John W. Farnkopf of HF&H Consultants, which according to their website, “specializes in the areas of recycling and solid waste and water/wastewater management services.” (farnkopf0716depo)

As part of the settlement, the agreement will be placed on the agenda of the next City Council meeting, scheduled for Tuesday, November 22, for discussion, and Jordan will be given 10 minutes to speak about it, much like a project proponent during a public hearing.

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5 Comments to “Antioch man’s lawsuit successful, forces City to return money from police to water, sewer funds”

  1. Rjb says:

    Wow! Excellent coverage. I was wondering what happened to Mr. Jordan and his lawsuit. This man needs some kind of award or recognition from the citizens of Antioch! He went against Goliath and won.

  2. Nancy Fernandez says:

    This is very interesting because within the past few days we were advised by an elected official there had been no settlement.

    I have just about had it with the dishonest goings on in this city that continue. A full outside audit looks better and better every day.

    Thank you to Mark Jordan. He should be our next City Manager.

  3. ABG says:

    Someone on the city staff should be held accountable for allowing these improper charges. What about Measure C funds being used to fund administration costs in other parts of city government instead of hiring new officers? Same problem. Who oversees the budget and makes sure charges are appropriate? Seems the city finance director isn’t doing her job.

    • Publisher says:

      ABG,
      It’s the City Councils who must be held accountable as they’re the ones who voted to approve the transfers, going back years.
      As for the use of Measure C funds on citywide administration, staff is merely following City Council policy, also going back years, to I believe 2005, under the Cost Allocation Plan. The City Finance Director is actually doing her job as directed by Council.
      Allen Payton, Publisher

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