CC 2015-11-10 Supplemental Info./pRROyo
INCORPORATED 92
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JULY 10, 1911,
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TO: CITY COUNCIL
FROM: DIANNE THOMPSON, CITY MANAGER
SUBJECT: SUPPLEMENTAL INFORMATION — AGENDA ITEM 12.a.
CONSIDERATION OF REMOVAL OF PLANNING COMMISSIONER JOHN
MACK FROM THE PLANNING COMMISSION
DATE: NOVEMBER 9, 2015
Attached is additional correspondence relating to the above referenced agenda item, for
your information.
c: City Attorney
City Clerk
Public Review Binder
From: Heather Whitham
Sent: Tuesday, August 18, 2015 12:08 PM
To: 'johnmack'
Subject: Conflict of Interest
Dear John,
The purpose of this email is to follow -up on our conversation yesterday.
You disclosed that you own real property located within the Berry Gardens Specific Plan. Part of the Courtland
project consideration includes an amendment to the Berry Gardens Specific Plan. Pursuant to California Code
of Regulations Section 18702.2(a)(1)(copy attached), which reads in part as follows, you have a disqualifying
conflict of interest:
§ 18702.2. Materiality Standard: Financial Interest in Deal Property.
(a) Except as provided in subdivision (c) below, the reasonably foreseeable financial effect of a
governmental decision (listed below in (a) (1) through (a) (12)) on a parcel of real property in
which an official has a financial interest, other than a leasehold interest, is material whenever
the governmental decision:
(1) Involves the adoption of or amendment to a general (except as provided below) or specific
plan, and the parcel is located within the proposed boundaries of the plan;
Compliance with the State's conflict of interest rules is your personal responsibility. While the City Attorney's
office may assist in analyzing conflicts, assistance from the City Attorney provides no immunity from civil or
criminal liability. Only good faith reliance on a written opinion from the Fair Political Practices Commission
can protect you in that regard.
Please remember that under the Political Reform Act in order to recuse yourself, you must publicly disclose the
conflict immediately before the matter is considered and abstain from discussing and voting on the matter.
Normally you would be required to leave the room until the matter is concluded. However, as this matter is
related to your personal interest, you may step down from the dais and remain in the room after disclosing the
conflict and recusing yourself in order to speak as a member of the public should you so desire.
Lastly, please remember that the City Attorney's client is the City as an entity and not individual public
officials.
If you have any questions about this email, please let me know.
Best regards,
Heather
HEATHER K. WHITHAM, ATTORNHY AT LAW
1410 Marsh Street, San Luis Obispo, CA 93401
1908 Spring Street, Paso Robles, CA 93446
Office: 805.546.8785
Fax: 805.546.8015
hwhithamacarnaclaw.corn I www.carnaclaw.com
Dianne Thompson
From: Otis Page
Sent: Wednesday, November 04, 20158:21 PM
To: Dianne Thompson
Subject: Re: Mack issue
Thanks for the reply. I understand your job -- but you also will be held to account by the citizens for your
conduct in administering the affairs of the city -- and that unfortunately is being tested on the present
controversy.
I sincerely wish you the best -- and I believe it is very important that you succeed. This important matter
boggles the mind of people who believe that the Mack matter is being badly handled. And you do bear some
responsibility on that fact, it occurring during your brief introduction as City Manager. After all, that is the
reason we pay you the big bucks.
On Wed, Nov 4, 2015 at 7:04 PM, Dianne Thompson <dthomoson4amovoerandc.ore> wrote:
Mr. Page,
Thank you for your email. I appreciate your concem for our City Council. My obligation as City Manager is to
follow direction that is given by Council. This is one of the fundamental aspects of the Council- Manager form
of government.
I hope to meet you in person at some point.
Best regards,
Dianne
Sent from my iPhone
On Nov 4, 2015, at 10:54 AM, Otis Page wrote:
When Bob Hunt was City Manager, he emphasized his job was to protect the
reputation of the Council. At that time I demonstrated the errors in the City's
assessment of the 207 bypass issue. Bob intervened to protect the Council in
making the wrong decision. He did so to preserve the reputation of the Council.
If Mack is alleged to be wrong -- a point of definite argument and controversy --
on his appearances of conflict — so is Nick on on his appearances -- and that of
certain Council members -- on Nick's appearances to control the deliberations on
his projects.
I believe the Council is wrong in placing the Mack issue on the agenda. You as
City Manager can protect the Council's reputation by removing this from the
agenda.
Otis Page
Dianne Thompson
From Beatrice Spencer _
Sent: Sunday, November 08, 20157:37 AM
To: Barbara Harmon; Tim Brown; Jim Hill; Otis Page; Jim Guthrie; Kristen Bameich
Cc: Dianne Thompson; Teresa McClish
Subject: Re: Doing right In Arroyo Grande
Otis, I don believe you have hit the nail on the head once again.
May I suggest you correct the spelling of Mr Tompkins' name in the first couple of paragraphs? (There is no
H.)
I do hope this council is able to work together in a more positive direction, but with an upcoming election and a
city manager who seems afraid to step in and get her "children" in line, I just don't know if we'll see that
happen.
We need to do whatever we can to support Jim
Beatrice
Sent from Yahoo Mail for Thone
On Sunday, November 8, 2015, 7:09 AM, Otis Page wrote:
Open letter to Arroyo Grande's City Council
I am beginning to understand the issue here as it pertains to the Thompkins/Mack
matter - -and the Council's consideration to dismiss Mayor Hill's appointee to the
Planning Commission, John Mack. The matter is scheduled for hearing at the City
Council meeting on November 10, 2015. (iteml2a on the Council's agenda.)
First, certain Council members -- with Planning Commission backgrounds -- have
appeared to encourage Thompkins to take his project directly to the City Council
thereby emasculating the Planning Commission's final review on the Courtland
matter. Thompkins requested the Planning Commission deny the project so that it
could be immediately considered by Council members friendly to his plan.
Tompkins is obviously upset with Mack's comments on his project and has filled a
conflict of interest complaint that has been denied. Tompkins has additional
projects coming before the Planning Commission and has sought cooperation with
certain Council members to have Mack removed -- with alleged implications to
embarrass highly regarded Mayor Jim Hill.
Second, those certain Council members have strongly supported Thompkins in his
visioning regarding the city -- befitting his business model -- with both positive
and negative future implications for the city in terms of infrastructure requirements
and the city's character.
Third, there are certain negative consequences for pursuing the Thompkins /Mack
issue since there appears to be no winners by its resolution -- neither for
Thompkins or Mack or the Council or the City!
This is an apparent exercise in hostility, what many citizens believe is an
inquisition alleging Mack as a virtual heretic (staff report is 88 pages!). It promises
to bear negative fruit for all.
By allowing the consideration to dismiss Mack's appointment to the Planning
Commission, those certain Council members approving this initiative join what
many citizens believe is an attempt by a developer to intimidate the City's planning
process. This poses as a serious negative precedent.
Fourth. This is basically an argument between Thompkins and Mack and the
Council should not have been involved. Since the Council has now involved itself,
I suggest the problem is the Council is not defining the real problem. The problem
involves the planning process of the City.
In defining the real problem we may avoid a political disaster by addressing the
real opportunity presented by the problem. Bear with me as I explain as follows:
I believe every problem presents opportunities, but one must understand the
difference between a problem and a disaster. The people did not have a problem
standing on the stern of the Titanic as it sank -- nor the people on that Russian
plane brought down in the Sinai - -. They faced a disaster.
The analogy here for the citizens of Arroyo Grande is the Thompkins /Mack issue
may spell political disaster for all where, I suggest, if it is treated as a problem, the
opportunity presented may be constructive and positive. So, what is the problem?
I suggest what is happening is that Thompkin's vision for the City may be positive
and challenging and Mack's planning discipline is regulatory and positive. Both
should be married and executed in the framework of a new definition of the City's
General Plan. Otherwise, the political fulcrum is decisively negative.
I suggest item 12a on the Council's agenda for October 10 be abandoned. The
City's Council should act on a new General Plan definition. It should be articulated
with citizen involvement -- serving the best tradition in seeking citizen consensus.
Thompkins should be encouraged and assisted in his sincere business objectives
for the City. But the Planning Process -- if it is to have integrity -- as exemplified
by Mack's and the other Planning Commissioner's guidance -- requires staff
2
discipline in the context of citizen cooperation if it is not to be overwhelmed by the
City's legislative body -- the City Council.
Otherwise, the Council's actions will be interpreted as being overwhelmingly
influenced by developer interests -- which is obviously apparent to many citizens --
in the present Thompkins /Mack matter.
In summary. I suggest that the Thompkins /Mack matter turn into a positive
analysis and restatement of the City's General Plan. Forget 12a on the Council
agenda on October 10. Otherwise, this Council will be approaching if not
provoking a controversy paralleling that which occurred in 2014.
Otis Page Citizen of Arroyo Grande
Dianne Thomason
From:
Otis Page
Sent:
Monday, November 09, 201511:05 AM
To:
Dianne Thompson
Cc:
Teresa McClish
Subject:
12 STAFF REPORT -- Council meeting November 10
Respectfully. The following is an index I prepared on the 88 page staff report for item 12a regarding the
removal of Mack from the Planning Commission:
STAFF REPORT INDEX total of 88 pages
City Manager letter to Council
Correspondence to FPPC
John Mack to FPPC
City Manager to Mack
2015 3 pages
Page 1 and 2 Date November 10, 2015 2 pages
Page 3 to 71 Date October 20, 2015 69 pages
Page 72 to 85 Date October 22, 2015 14 pages
Page 86 to 88 Date October 29,
Of the total 88 pages of the staff report only 5 was prepared by City staff.
The remaining 83 pages deal with the correspondence with the FPPC that has denied the complaint!
I assume the 69 page October 20 file was provided to City staff by the complainant.
This begs the question as to how many and who of the Council was involved in generating this work product
constituting the major documentation provided in the staff report.
11
Conclusion: Again, the 83 pages of 88 of the staff report deals with correspondence resulting in the denial by
the FPPC!
Again, most respectfully. This begs the question why hasn't the City Manager and staff provided this conclusion
in the staff report?
There is no evidence in the staff report that Mack did anything wrong regarding the charges made against him.
The precedent set here in challenging a commission member is awesome in terms of its implication. The
potential political damages here are huge and predictably compounding.
I strongly recommend that you eliminate 12a from the agenda on November 10. As a minimum you should seek
a consensus with the Mayor in considering this -- what I believe would be a responsible action on your part.
No reply to this email is sought or required.
Sincerely, Otis Page
COLLEEN Trus MARTIN
ARROYO GRANDE, CA 93420
November 9, 2015
To Mayor Hill and the City Council of Arroyo Grande,
I am disappointed that the City Council Agenda for Tuesday, November 10' includes
the removal of Mr. John Mack from the Planning Commission.
If a commissioner has acted inappropriately, I would hope the first step to correcting this
action would be the same for any employee: (a confidential meeting between that
person and his superior). It seems that the public agenda item would be the last step in
a structured disciplinary action. Isn't it better for all to praise in public and censure in
private?
Will this agenda item include Council comments that include areas other than the FPPC
complaint? Anyone can make a complaint to any regulatory body for any reason. It is in
the complaint's determination that might cause you to take action. So... since there has
been a determination not to pursue the complaint, there must be some other reason that
the majority of the Council wanted to pursue this at a public meeting. Will that item be
presented as a day of the meeting staff report addendum? If not, then as a citizen I
have to wonder if a commissioner will be removed because the beliefs they hold or the
shoes they wear.
I cannot understand what positive outcome will occur from this agenda item. The lack of
courtesy towards Mr. Mack and to Mayor Hill only provides another black eye for the
City (a City with less than satisfactory public Human Resources past!)
Please reconsider your actions and abandon item 12a from tomorrow night's agenda.
Save not only the City, but yourself from this embarrassment.
Do the right thing. Remove this agenda item now
Sincerely,
Colleen Martin
Dianne Thompson
From:
Teresa McClish
Sent:
Monday, November 09, 2015 11:42 AM
To:
Jim Guthrie; Jim Hill; Barbara Harmon; Kristen Barneich; Tim Brown
Cc:
Dianne Thompson; Kitty Norton; 'Heather W hitham'
Subject:
FW: Conflict of Interest- Real Property
Attachments:
2 CCR 18702.2 Real Property Conflict.docx
Mayor Hill and City Council,
As requested by a Council Member, please see below regarding information sent to Commissioner Mack.
Teresa
Teresa McClish, AICP
Director of Community Development
Cityof Arroyo Grande
300 E. Branch Sane[
Arroyo Grande, CA 93421
(805) 473 -5420
fax (805) 473 -0386
mrcclishraarrowogrande otg
From: Teresa McClish
Sent: Wednesday, August 05, 2015 10:12 AM
To:'johnma&
Subject: FW: Conflict of Interest - Real Property
Good Morning John,
As discussed yesterday, for your information and use, attached are the regs relating to conflict of interest. Feel free to
call Heather for guidance she's really good at walking folks through the 12 factors.
Teresa
TeresaI&Clish,AICP
Director of CommunityDevelopment
Cityof Amryo Grande
300 E. Branch Street
Arroyo Grande, CA 93421
(805) 473 -5420
fax (805) 473 -0386
nu ccl�s' bQatrokvgrande org
From: Heather Whitham [mall[O:hwhltham@camaclaw.com)
Sent: Wednesday, August 05, 2015 8:43 AM
To: Teresa McClish
Cc: Lane Harkins
Subject Conflict of Interest- Real Property
Good morning, Teresa,
Attached is a copy of CA Code of Regulations, Title 2, Section 18902.2 governing the materiality standard for
ascertaining conflicts of interests related to financial interests in real property under the Political Reform Act.
Please let me know if we can provide any additional assistance in this regard.
Thanks,
Heather
NAc(,,,ASHA iip
HEATHER K. VUHITHAM, ATroRNF -Y AT LAW
1410 Marsh Street, San Luis Obispo, CA 93401
1908 Spring Street, Paso Robles, CA 93446
Office: 805.546.8785
Fax: 805.546.8015
hwhitham@carnaclaw.com I www.carnaclaw.com
From: Nick Tompkins
Sent: Monday, November 09, 2015 11:56 AM
To: Kelly Wetmore
Subject: Fwd: Sworn Complaint Against John Mack
Attachments: 10, 14.16 Revised Sworn Complaint Form.pdf; ATT00001.htm; 20151026112744941. pdf;
ATT00002.htm qq
are I&C!
5 faFF zpor P_
Sent from my IPad
Begin forwarded message:
From: "Paul F Ready"
To: " iturvill (dfooc.ca.gov "<iturvili(vlfooc ca eov>
Subject: Sworn Complaint Against John Mack
Dear Ms. Turvill-
Mr. Nick Tompkins requested that I respond to you regarding Galena West's letter dated October 20,
2015 regarding Mr. Tompkins sworn written complaint against Mr. John Mack. While I assume you have
access to those documents, I've attached copies for your perusal.
As Indicated in the complaint. Mr. John Mack presently serves as a Planning Commissioner for the
City of Arroyo Grande, California. He resides at 1501 Loganberry, Arroyo Grande, California in an area
known as Berry Gardens. He purchased the property in 2002, He acquired a % tenant in common
interest as an unmarried man together with Paula Renner, an unmarried woman, in 2002 (see Ex. A to
complaint).
On August 18, 2015, on the morning involving a planning commission hearing involving Mr.
Tompkins' property and issues associated Mr. Mack's Berry Garden neighborhood, Mr. Mack recorded a
quitclaim deed to his co- owner /partner for the property at 1501 Loganberry (see Ex. B to complaint).
This was not a sale, not does it appear that Mr. Mack was vacating and leaving his Berry Garden
residence.
This transfer, for no consideration was marked a divorce settlement, (although there is no
known divorce action pending) but the transfer was not to an ex spouse, Instead it was made to his co-
owner with whom he has held title since 2002, to wit Paula Renner.
Ms. Galena West, In her October 20th letter indicates she understood Ms. Renner to be Mr.
Mack's "adult child ", when that does not appear to be the case whatsoever. If anything it would appear
that Ms. Renna is Mr. Mack's partner with respect to their investment in the 1501 Loganberry
residence.
As indicated in the complaint, Mr. Mack continues to live at the 1501 Loganberry residence as
he has stated on the public record as recently as the October 8, 2015 Arroyo Grande City Council
Meeting. And It was further recently discovered that M r. Mack filed and continues to maintain a
Homestead Declaration for the Loganberry property, which has never been abandoned by him or
otherwise by operation of law. That declaration is also included within the attached
documents.
After recording a deed, marked "divorce settlement" to address the clear conflict associated
with his true residence, and his declared and current homestead, Mr. Mack participated in a planning
commission hearing and thereafter at two city council meetings addressing Mr. Tompkins
project.... specifically seeking to defeat It. 1 believe this presented a clear conflict of interest which is
appropriate for the FPPC to formally Investigate and address.
I've attached Mr. Tompkins' complaint, the declaration of homestead to which I've referred,
and Ms. West's letter indicating that the FPPC did not intent to investigate these troubling
circumstances. 1 hope you will please reconsider that position, and look forward to discussing it with you
at your first convenience.
Paul F. Ready
Farmer & Ready ALC
1254 Marsh Street
San Luis Obispo, CA
93406
805 541 1626
MEMORANDUM
TO: CITY COUNCIL
FROM: DIANNE THOMPSON, CITY MANAGER
SUBJECT: SUPPLEMENTAL INFORMATION
AGENDA ITEM 12.a. – NOVEMBER 10, 2015 CITY COUNCIL MEETING
Consideration of Removal of Planning Commissioner John Mack
from the Planning Commission
DATE: NOVEMBER 10, 2015
Attached is additional correspondence relating to the above-referenced agenda item, for
your review.
c: City Attorney
City Clerk
Public Review Binder
From: Steve Hollister
Sent: Tuesday, November 10, 2015 10:01 AM
To: Teresa McClish
Subject: John Mack
Mr. Mayor and Council Members,
On the surface, the issue with John Mack as a Planning Commissioner seems a minor matter. After all, he is one
Planning Commissioner and it is not an elected position. The decisions can be appealed to the City Council. It shouldn't
make any difference, should it?
When you look below the surface, several things come to light. Any person serving in a public capacity, such as Mr.
Mack, needs to have the interests of all parties in mind. While administering the interests of the City, per approved
planning documents, they need to be administered in a fair, impartial, constructive manner. The commissioner needs to
be aware of the responsibilities of his/her position and know when to recuse themselves. They should accept the rights
of the applicants to pursue all avenues available to them in pursuit of their goal. They need to do all of this in a
transparent manner.
While I do not know Mr. Mack, I have seen the public information regarding his correspondence With the City Attorney,
Heather Whitman. 1 have further seen the deed transferring his interest in his Berry Gardens property. These
documents raise a concern whether Mr. Mack was conducting his influence as a Planning Commissioner with a
transparency necessary for true disclosure and independence. Moreover, it raises a question many have in the City
about his reasons for not recusing himself from this matter. There seems to be an Us vs. Them element in the City from
some factions that go beyond reasonable discourse.
Most of the focus on this matter has been levied against Mr. Tompkins and his Coljrtland and Grand project. While this
' pr6ject was approved at the Council level, the Planning Commission disregarded the approved Memorandum of
Understanding ("MOU") with the City and denied a project from Mr. Tompkins that met the MOU, albeit at Mr.
Tompkins' request. ln this particular case, the project had been through the planning process many times and has
ended up costing the applicant significantly more than should be expected. There was no reason to expect the Planning
Commission to approve a revised plan.
The takeaway from this should not be the focus on Mr. Tompkins or his projects; they are arguable some of the best
additions to the City in recent years and seem popular with the community as a whole. The focus should be on other
applicants and what reception they will get with the Planning Commission. As many have stated in the past, if
transparency is the goal of the City and those elected and appointed to serve, removing Mr. Mack as a Planning
Commissioner would be a good start.
Regards,
Steve Hol!ister
Begin forwarded message:
From: Fernando Garcia
Date: November 10, 2015 at 1:15:22 PM PST
To: "kba rneich @arroyogrande .org'' <kba rneich @arroyogra nde .org>
Subject: City of Arroyo Grande
Dear Ms. Barneich,
I am a resident of Berry Gardens. My family and I were one of the original residents in Berry Graden. We
were in the group of first ten homes that went in. I have seen the project at Grand and Courtland go
through many requirements and stipulations through out the years. In the original proposal, I saw Mr.
Mack protest the project. I heard everthing form the Basin being undersized, to the trafic circulation
issues he brought up. I even heard him propose to dose Courtland and put a park there. I respect his
views even though they were not constructive and not good for the City of Arroyo Grande or the
residents of Berry Gardens. Back then, he was able to rally a group of residents and community
members, not all Berry Garden residents, but some community members with other agendas ( Spencers
Market, and Cookie Crock Market).
This time around, I believe the project was governed by the economy and what the Market would allow.
My concern though is the blatant mockary that Mr. Mack has displayed. 1 respect his opinions, but I saw
Mr. Mack coherst with residents in Berry Gardens, and participate in meetings, and even provide
renderings of ideas for the proposed project. I saw an unfounded petition led by Mr. Mack's negative
views. I have never witnessed a planning commisioner so oppsed to a project, make a mockary of a
system in place to provide residents of a community with open and constructive ideas and views.
Maybe the Deed signing the same day as his vote on the project, or his meetings with the community
members opposed to the project, or even his volunteering of Architecture renderings were all
coinsidemces as he states, but as respect for all that you all do for the community, and all the time away
from your fami!ys, r believe Mr. Mack does not know the true meaning of serving his community.
1 believe the members that really do serve the community with your relentless research and time that
you all put in will provide the correct outcome of the matter of Mr. Mack brought to your attention.
Thank you for yor time,
Regards,
The Garcia family
From:
Sent:
To:
Cc:
Jeff Edwards l r ___ , .._._.,. ,
Tuesday, November 1 0, 2015 1:35 PM
Jim Hill; Kristen Barneich; Jim Guthrie; Tim Brown; Barbara Harmon; Dianne Thompson
Kelly Wetmore; Kitty Norton
Subject: 12.a. Consideration of Removal of Planning Commissioner John Mack. from the Planning
Commission
Dear Mayor and Council members,
Please consider the following:
To determine whether an official has a conflict of interest many factors must be analyzed.
For example, is it reasonably foreseeable that the official's interest will be affected by a particular
decision?
Mack's home is 1,000 feet from the Courtland Project (300 feet is the rule for CEQA noticing).
Mack quit claimed the property to his former partner; insuring there was no conflict.
The General Plan and Specific Plan amendments made for the Courtland Project to ''fit" in the city were
specific to the 4 acre Tompkins parcel and, do not apply to Mr. Mack's residence.
Will the decision have a significant monetary impact on the financial interest or is the impact minimal?
Mack's benefit/detriment from the Courtland Project is immeasurable.
Will the decision affect the official's interest differently than members of the general public?
Mack's benefit/detriment differs none from the project's impact to his neighbors.
Is the official even making a governmental decision?
Mack serves on the Arroyo Grande Planning Commission; which is advisory. The City of Arroyo
Grande's Advisory Body Duties & Responsibilities are as stated below:
"Advisory bodies have the authority and duty to consider, advise, and/or recommend to the City Council
or city manager regarding its area of interest. These recommendations may encompass, but are not
limited to, programming of improvements, land acquisition, development or ordinances, and
development of public interest. The advisory body shall have other authorities and duties as the City
Council may, by ordinance, confer upon it. "
Tompkins FPPC complaint asserts, Mack used his "Political Position" to influence the council.
Mack voted unanimously with his fellow commissioners to deny the Courtland Project, at the request
ofthe applicant Mr. Tompkins, and was not a "governmental decision." The vote was advisory only.
Mr. Mack never identified himself as a Planning Commissioner when he spoke before the City
CounciL Neither at the Sept. 8 or Oct 8 public hearings where the recommendation was
overturned by the majority of the council --the same council members who have asked to remove
Mr. Mack from the Planning Commission.
Mack never argued "against" the Courtland Project, he offered compromised solutions to traffic
circulation related to the Courtland Project as proposed.
To remove Mr. Mack would have a chilling effect on all the city's commissions and the 'Willingness of
volunteers to participate in their city government.
Th¢ you for your attention to this very important matter.
Julie '
~sent from my work email address.
Julie Tacker
Administrative Assistant
J .H. Edwards Company
P.O. Box 6070
Los Osos, CA 93412
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