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CC 2015-11-10 Supplemental Info./pRROyo INCORPORATED 92 U a JULY 10, 1911, c.d41FOIR ►11 #1 1i Is] 7_\ki 1ZII1 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 THIS PAGE INTENTIONALLY LEFT BLANK