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CC 2015-11-10 Items Rec'd at Meeting
5 November 10, 2015 Dear Mayor Hill and City Council members, I am receipt of the letter written by Mrs. Diane Thompson and am responding accordingly to the process as outlined in her letter dated October 28, 2015. I would like the Council to also consider the follow information and attachments in addition to my response letter to the FPPC. As you already know, the FPPC has received multiple complaints filed by Nick Tompkins through both mail and email. A determination was made on October 20th, 2015 to not investigate either complaint prior to receiving my response to the complaints, dated October 22, 2015. Please know I was not in receipt of the complaint until Monday October 19, 2015, via US Mail. I telephoned the FPPC right away to discuss the complaint and my right to respond. I did not receive a call back until October 21, 2015 and followed it up with my written response the following day. Teri Rindahl is the representative of the Enforcement Division of the FPPC whom was assigned the case and to whom I spoke too. During our phone conversation Teri was alarmed to learn that two other individuals in her division were working on the case simultaneously. Others in the department had begun work, because of the multiple copies of the same complaint sent by NKT. She was disappointed that the FPPC did not have my response prior to the FPPC determination but shared with me that they were not going to do an investigation and the letter was forthcoming. The letter was sent, via US Mail to both me and NKT. It is disappointing that the FPPC response letter had been concluded prior to their receiving my formal response and additional facts included in the case. After receiving the long awaited FPPC formal response letter, I followed it up with a call to Teri Rindahl, even though the case was closed wetdiscussed my response letter. She shared her interpretation of Section 18700(b) of the Basic Rule and Guide to Conflict of Interest Regulations but was unable to put that into writing to me because the case was closed. It was communicated to me that if it was concluded that the role of the Planning Commission was advisory in the decision to the City Council that Exemption 18700(b) would in fact apply. We further discussed if the determination was made by the FPPC that I was indeed acting as a "Public Official" making a decision, what would they do? They would look at Section 18700(d) which is a four step process of determining if the governmental decision had a financial effect in favor of the Public Official. We determined together that a realized financial effect of the public officials financial interest would be indistinguishable from its effect on the general public. Please know this is further reinforced by the final action of the City Council which certified the Mitigated Negative Declaration for the project which clearly identifies "no impacts" and "less than significant impacts" to the public. After taking note of Nick Tompkins claim, there is a further on-going investigation by the FPPC, and published in the Telegram Tribune, I again reached out to the Teri Rindahl. She confirmed in an email back to me on November 2, 2015 and again today November 10, 2015 that nothing new has been received (See Exhibit A). In response to the additional supplemental information posted on the city's website last evening, I have compiled a timeline of events for the Council to consider (See Exhibit B). Please know I was not contacted by any City representative prior to the Planning Commission meeting of August 4, 2015, where the Commission voted to continue the matter to August 18, 2015. On August 5, 2015, Teresa McClish forwarded an email to me requesting that I review the "Conflict of Interest Code" and to call Heather Witham, the City Attorney, if I had any questions (See Exhibit C). Wanting to be sure there was no conflict, I contacted Ms. Witham, and went through each bullet point one at a time during a 15 minute conversation and was told by Council that everything looked good and I had no conflict. See attached phone log (Exhibit D). On August 17, 2015 I received a call from from Teresa McClish at 9:42am asking me if I was going to recuse myself from the up coming Planning Commission Meeting. I informed her that I reviewed all the sections of the "Conflict of Interest Code" with professional advise and also spoke to Heather as she had recommended and received her blessing to participate, McClish seemed agitated and quickly ended the call. At 9:51am I received a voice mail from Heather that said she just received new information that she needed to discuss. I did return her call and we spoke, but I did not get an indication that she was recommending me to recuse myself from the upcoming meeting. Nor is it her place to make such a recommendation, she works for the City as its attorney, not for me. As far as the email sent by Heather the following day on August 18, 2015, I do not believe I was aware of it. In light of the recent events and accusations that I had an email from the City Attorney I have check my "Junk Mail" folder and have attached a copy of this email (See Exhibit E) that I was supposed to be in receipt of the afternoon of the Planning Commission meeting. The email was from a Lane Harkins indicating that Heather's email was not working properly and had not gone through. The time of the email is 2:24PM, August 18, 2015. By that time I was already off preparing for the Planning Commission meeting, eating dinner and away from my computer. In light of where we are today, I think it is unfortunate the citizens have had to endure this proceeding as they witness a volunteer public servant being put down by a developer, his attorney, and his design team. I have been targeted by this developer and I think it is wrong for him and his constituents to take an inordinate amount of staff time and to allocate an inordinate amount of resources to advocate my removal. I know this Council can remove me for any reason. Now that the FPPC has ruled that there is no investigation it is my sincere hope that we can leave the Democratic process intact and not allow a disgruntled Developer to bully the City, FPPC, and the public into having me removed from the Planning Commission. I thank you for the opportunity to serve out my term and look forward to working with the Council in the coming year. Sincerely, John Mack RE: Complaints by NKT Page 1 of 2 asiobri-• From:Ten Rindahl<TRindahl @fppc.ca.gov> To: John Mack<johnmackaac @aol.com> Subject: RE Complaints by NKT Date:Tue, Nov 10,2015 9 54 am Good morning John, No, nothing new. Teri Rindahl Political Reform Consultant Enforcement Division Fair Political Practices Commission 428 J Street,Suite 620 Sacramento,CA 95$14 916.327.2018 Confidentiality Notice:This email message,including any attachments,is for the sole use of the intended recipient(s)and may contain confidential and privileged information. Any review,use,disclosure,or distribution not authorized by the intended recipient(s)is prohibited. If you are not the intended recipient,please contact the sender by reply e-mail and destroy all copies of the original message. From:John Mack[mailto:johnmackaac©laol.com] Sent:Tuesday, November 10, 2015 9:52 AM To:Teri Rindahl Subject: Re: Complaints by NKT Hi Teri, I was checking in one more time to see if there has been any last minute complaints filed by Mr Nick Tompkins. I am on the Agenda for tonight's City Council meeting to consider my removal from the Planning Commission and information submitted by his attorney suggests there has been another complaint filed. It is important if you can return a reply today. Thank you John Mack Architect Contractor CA#21466 CA#831344 AAC P.O. Box 29 Grover Beach, CA 93483 (805)440-8812 -----Original Message----- From:Teri Rindahl<TRindahl(a7fppc.ca.gov> To: John Mack<iohnmackaac�,aol.com> Sent: Mon,Nov 2, 2015 3:41 pm Subject: RE: Complaints by NKT https://mail.aol.com/webmail-std/en-us/PrintMessage 11/10/2015 4_,;RE: Complaints by NKT /_ \- Page 2 of 2'',. ?Ci7i‘ ISM\ Nothing has been logged into our database. Teri Rindahl Political Reform Consultant Enforcement Division Fair Political Practices Commission 428 J Street,Suite 620 Sacramento,CA 95814 916.327.2018 Confidentiality Notice.This email message,including any attachments,is for the sole use of the intended recipient(s)and may contain confidential and privileged information. Any review,use,disclosure,or distribution not authorized by the intended recipient(s)is prohibited. If you are not the intended recipient,please contact the sender by reply e-mail and destroy all copies of the original message. From: John Mack[mailto:iohnmackaacCabaol.com] Sent: Monday,November 02, 2015 8:53 AM To: Teri Rindahl Subject: Complaints by NKT Hi Teri, I am just checking to see if the FPPC has received any additional complaints from Nick Tompkins last week or today since the revised complaint you received October 15, 2015. My understanding Case is closed with the FPPC letter dated October 20, 2015 and no further action is necessary. John Mack Architect Contractor CA#21466 CA#831344 AAC P.O. Box 29 Grover Beach, CA 93483 (805)440-8812 https://mail.aol.com/webmail-std/en-us/PrintMessage 11/10/2015 ,, 1 , t, PHONE/EMAIL LOG - JOHN MACK(805)440 -8812 No Prior Communication from Staff or City Attorney 4-Aug-15 Planning Commission Meeting to Consider Courtland Project Postponed to August 18,2015 5-Aug-15 1o:12am Received Correspondence from Teresa McCLish 5-Aug-15 2:24pm Call into Teresa to discuss 5-Aug-15 3:51pm Call into Heather to discuss 6-Aug-15 1:45pm Call received back from Heather-Went through entire document provided by McClish one point at a time Was told I did not have a conflict of intrest. 17-Aug-15 9:42am Received Call from Teresa McClish asking if I was planning to recuse myself from the PC Meeting. I indicated that I was not going to recuse myself and was cleared by Heather. 17-Aug-15 9:51am Received call from Heather.She received more info via Teresa and wanted to discuss the property I lived in. Informed her the property at Loganberry was where I lived �` Discussed that there is a"Exception"as well to advisory memebers 18-Aug-15 2:24pm Proff of Reciept of Heathers Email via Lane Harkins- Went to Junk mail recently found 11/10/2015 after review being a supplimental document posted on Cities Web Site _ ,._7 FW: Conflict of Interest-Real Property Page 1 of 1 ‘411 From:Teresa McClish<tmcchsh @arroyogrande.org> To: 'johnmackaac @aol.com'<johnmackaac @aol.com> Subject: FW.Conflict of Interest-Real Property Date:Wed,Aug 5,2015 10:12 am Attachments: 2 CCR 18702 2 Real Property Conflict.docx(25K) • 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 Teresa McChsh,MCP Director of Community Development City of Arroyo Grande 300 E.Branch Street Arroyo Grande,CA 93421 (805)473-5420 fax(805)473-0386 tmcclish @arroyogrande.org From: Heather Whitham [mailto:hwhitham(&carnaclaw.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 18702.2 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 CAMEL,. _ lip HEATHER K.WHITHAM,A'rroRNrY 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 https://mail.aol.com/webmail-std/en-us/PrintMessage 11/10/2015 L The Largest 4G LTE Network-Verizon Wireless.Voice Details Page 9 of 11 b r { 8/05 FNI 805-473:-5400 2 Peak — 'C'.e f CS a , cC L 16 t 8/05 PM1 805-546-8789 1 Peak — tApQV' VI VI 1"Vino'1M Peak — Peak — ( Peak — Peak 'Q 1,41 t\_ 8/06; AP, 805.546-8785 15 Peak — e�1 Peak — `s Peak — E F A Peak — Peak — 8/011111101111 Peak -- E r amiort Peak — Peak I � Peak -- https://wbillpay.verizonwireless.com/vzw/accountholder/mybi I1/VoiceDetailsViewAll.act... 11/10/2015 FW: Conflict of Interest Page 1 of 2 0,04,1brr From: Lane Harkins<lharkins@carnaclaw.com> To:johnmackaac gohnmackaac @aol.com> Cc: Heather Whitham<hwhitham @camaclaw corn> Subject: FW.Conflict of Interest Date:Tue,Aug 18, 2015 2:24 pm Attachments: 2 CCR 18702.2 Real Property Conflict.docx(25K) Good afternoon Mr. Mack, Heather is having some difficulty with her outgoing email transmissions and asked that I forward the below email to you. Thank you, Logo Orange.bmp LANE HARKINS ASSISTANT TO HEATHER WHITHAM 1410 Marsh Street,San Luis Obispo,CA 93401 Office: 805.546.8785 Fax: 805.546.8015 lharkins@carnaclaw.com Iwww.carnaclaw.com From: Heather Whitham Sent:Tuesday,August 18, 2015 1:48 PM To: Lane Harkins Subject: RN: Conflict of Interest From: Heather Whitham Sent:Tuesday,August 18, 2015 12:08 PM To: 'johnmackaac @aol.com' 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 187o2.2(a)(1)(copy attached),which reads in part as follows,you have a disqualifying conflict of interest: § 18702.2. Materiality Standard: Financial Interest in Real 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; https://mail.aol.com/webmail-std/en-us/PrintMessage 11/10/2015 ir' o FW: Conflict of Interest Page 2 of 2' :1000 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 cid:image002.png @01 CCF227.3CDO E070 HEATHER K.WHITHAM,ATroRNEY 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 https://mail.aol.com/webmail-std/en-us/PrintMessage 11/10/2015