He’s been acting unilaterally, implementing an unapproved policy
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.