Recently, it was announced that a lawsuit alleging Brown Act violations in the appointment of Councilperson Steve Miesen had been settled by the City. Many think that the story involving Miesen and the seemingly corrupted appointment process is over. Lest we forget there was and still is unresolved legal challenges that at one time were in the hands of the city’s Ethics Commission and then shipped off to three different enforcement agencies. The story of what happened to this process has never been told completely or accurately.
In considering California state law, Miesen should have been prohibited from serving given the legal doctrine of “incompatible offices”. By definition he is a “public official’ deemed as a “consultant” in his capacity as Division Manager of Republic Waste (administering the city trash contract in all capacities on a daily basis) and then serving as council member. The state law prohibits citizens from occupying two public offices at the same time.
Equally important in the Miesen matter is City Charter code section 508: No member of the City Council, department head or other officer of the City (except a member of any board or commission), shall be financially interested, directly or indirectly, in any contract, sale or transaction to which the City is a party. The intent of the charter is clear. One cannot be financially interested as Miesen grossly is, in a contract with the city and legally serve office. More on these codes later.
A review of history is in order given that so much time has passed and will reinforce why myself and several other citizens chose to take action against a process that was clearly rigged and out of control.
When Mary Salas intentionally abandoned her council seat to run for Mayor, Chula Vista voters unknowingly set themselves up for another messy and rigged appointment process to fill a vacant council seat that Salas once held in order to become mayor. Legally, she can do that.
Lacking adherence to ethics though, she never made it clear in her run for council that she would abandon her seat early. She put her self interest ahead of the public interest. In political circles it was well known that Salas had no intention of serving a full term and wanted badly to be the mayor. What Salas didn’t plan on was another messy appointment process that was almost forced the council to spend taxpayer money for a special election to fill the seat of Salas. Salas was in a panic, displayed abysmal behaviors on the dais with tantrums, and went so far to hold secret meetings at her house that may have in fact included members of Council to resolve the appointment nightmare. Salas and the Council did not want to take blame for costing hundreds of thousands in taxpayer money for a special election that she (Salas) would be blamed for. Yet for some reason this council could not come to find one person out of 44 (many with outstanding credentials) and then for unknown reasons gravitated to Miesen at the last minute.
This mayor and council have yet to be held accountable for the shabby and disrespectful treatment that those 43 others received in a mess of a process that was clearly rigged and out of control.
How did we get stuck with the “conflict of interest nightmare” in Miesen. The story gets interesting, complicated and messy from here.
It has been discovered by disclosed emails from a 501C3 non-profit education foundation out of Eastlake that in December of 2014, not even a month after Salas was elected mayor that Miesen went into full campaign mode. He used the foundation through email communication to members to solicit phone calls and other contacts to Chula Vista Councilmembers and Salas to promote his possible selection to the vacant seat. The legal problem Miesen caused with the help of the president of the non-profit was simply this: the IRS prohibits 501C3 non-profits from engaging in politics.
Potentially, both Miesen and the president could have earned the attention of the IRS and all of the headaches that go with it up to and including an audit and possible sanctions. Miesen put self interest ahead of common sense. He clearly demonstrated he wanted to be a council member at all costs and must not have cared about the sanctity of the very educational foundation that he belonged to.
In January of 2015, the Miesen endorsement email was beginning to circulate around town. At that time, the Council was beginning to hold deliberations and meetings to fill the vacancy. The City received 44 applications submitted for the vacancy. One of those applications came from a young man, Jason Paguio. Paguio somehow had a copy of the email from the non-profit foundation and sent it along to the council on January 5,2015. Why ? Because Paguio may have concluded that the foundation potentially violated federal IRS regulations by engaging in a political effort to appoint Miesen. Paguio himself is involved in a non-profit and knows the laws quite well.
Miesen has been around local politics for a long time. It would seem unlikely that he would not know that a prime prohibition with non-profit foundations is simply “thou shall not politic”. Yet Miesen in follow up response to the foundation email encouraged the activity to continue.
Keep in mind, none of the other 43 applicants engaged in such reckless behavior. Several candidates had clear connections to non-profits, yet none of them engaged in an active email campaign such as Miesen. Frankly, had the mayor and council members been thinking clearly at that time, they had every reason and right to disqualify the application of Miesen for unethical behavior. But they closed their eyes for some reason. Maybe it can be said that everyone knows that Miesen and his company Republic Waste, have contributed tens of thousands of dollars to local council campaigns over the years thus holding a death grip over the city and their trash contract. Council members, mayors and city attorneys will not bite hands that feed them. That is a political truth.
And it should be enlightening to know that all of the sudden after Miesen gets appointed, Paguio gets a job as a Miesen aid and we never hear another thing from Paguio on this issue. Ethics? What ethics? Paguio had every chance to do the right thing and make public the serious transgression by Miesen. Paguio had a moral and ethical obligation to publicly disclose what he knew to be true. He chose the other road it strongly appears. Go along and get along is what Paguio demonstrated. That is not leadership by any means.
After Miesen gets appointed, ethics complaints were filed and a lawsuit as well. The ethics complaints after months of intentional delay and legal obfuscation by City Attorney Glen Googins, eventually would wound up in the hands of outside enforcement agencies. Miesen has been a conflict of interest nightmare for the City and these issues were paramount in the complaints filed. They needed to be heard and reviewed by independent authorities with no axes to grind.
Googins and his office should never have been involved in rendering any opinion on Miesen eligibility given his connections politically and personally to Miesen over the years. Yet for five months Googins spent more than $150,000 of taxpayer money fighting challenges to Miesen that he had no business being involved in ethically speaking. Again, ethics took a back seat, this time by Googins.
Interesting to note how the City seems to find money when they have to.
Googins spent taxpayer money hiring an outside counsel to construct a poorly written communication intentionally designed to sabotage Ethics Commission communications to the State Attorney General, Fair Political Practices Commission (FPPC) and the San Diego County District Attorney.
These letters were sent out in June of 2015. The letters were poorly written with no seeming intent or purpose as to why the City was contacting the agencies involved. In personal conversations I had with FPPC personnel familiar with the City letter to them, they confirmed to me how poorly written and constructed the letter to them was and that they had no idea what the City was trying to find out. Two weeks later the FPPC opined that the State Attorney General had the legal authority to render a decision on candidate eligibility concerning the question if Miesen could legally serve. The San Diego DA opined they had no jurisdiction which made complete sense since no criminal statutes seemed to have been involved. That leads us back to the State AG.
Three months went by (from June 2015) and there was no response by the AG. After several phone calls to their offices in San Francisco and Sacramento, their personnel confirmed to me that they had no idea where the package from Chula Vista was or who in their office might have been assigned to it.
Finally, three months later in September of 2015 the AG responds by simply saying that they had no jurisdiction. Their decision flies in the face of reality. The AG has made legal rulings in the past concerning candidate eligibility and opined on state law. Why not now? A strong suspicion of political protection is certainly possible.
All we wanted from day one was a rendering on two laws that if applied literally as stated would most likely remove Miesen from office. California government code 18700.3 provides us with the definition of who falls into the category of the term “public official”. In that code it clearly states that a “consultant” is a public official. To support 18700.3 comes government code 82048 which in essence says that “consultants” are public officials. Make no mistake about it, when you read these codes and understand the capacity in which Miesen serves in his employment with Republic, he is clearly serving in the capacity as a defined “consultant” to the city by carrying out his daily duties in administering the city trash agreement through the public-private partnership with the city. Therefore he is and has been ineligible to serve if the legal definitions are applied word for word.
Yet the taxpayers and voters got stuck with a conflict of interest nightmare in Miesen. He has been forced out of participation on most every major key vote because of his constant conflicts in his lead administrative duties with Republic. Miesen’s continuous conflicts shortchange the needs of the city. Googins thinks all is well and you shouldn’t worry about it.
So what did we learn from this entire debacle? First, we will never know from a non-partisan legal enforcement perspective, what the final conclusions of clearly defined state laws are in relation to the Miesen appointment. Second, Googins game plan from day one was clear: obfuscate, delay and run out the clock. In that he has been brilliant. Third, Salas remains unaccountable for causing this mess in the first place. And she made it worse by her conduct throughout and clear lack of ethical behavior. Chula Vista voters and taxpayers should not forget this. Fourth, it is clear that council members failed to act full well knowing that this appointment was the worst in the history of the city. They have hid behind the cloak Googins has provided. They know the truth and the facts yet did nothing. It was disclosed soon after the appointment that Miesen failed to accurately and truthfully report substantial Republic Waste financial holdings on is form 700 report to the FPPC. This false report was sent prior to his appointment. Yet the Council did nothing. Fifth, it should be clear to all voters that appointing politicians is a folly each and every time the process is used. There is no fixing it because your political leaders are given great discretion in hiding what used to be public records through the use of their private cell phones and private email accounts. This is where the public’s business is really conducted in this day and age.
The bottom line is this: Chula Vista had 43 other applicants to choose from and none had the baggage that Miesen presented. Many of those applicants had superior qualifications. What they didn’t have is a company that they worked for that had been a political sugar daddy to the Mayor and Council. They wasted their time because of a totally rigged and corrupt process that needs to be done away with. There is no fixing it.