Reading the Press-Telegram last Wednesday, a citizen of Long Beach had cause to be both content and concerned. Content that the majority of voters elected Laura Doud to be our City Auditor, and concerned that Robert Shannon is still our City Attorney.
CITY AUDITOR LAURA DOUD
First, contentment. As stated on the “Welcome” page of the City Auditor’s website, the job of Ms. Doud is “to review the financial operations of the City in order to provide an accurate, detailed picture of the City’s finances.” In performing this function Doud’s office undertook a review of the Police Department and the findings have caused quite a stir, mainly the amount of unbudgeted overtime spent by the Department.
Last Tuesday the City Council had a special meeting to hold a study session on the matter of police overtime. During the meeting several members of the public, the Police Department, the police officers union and some city officials addressed members of the City Council. Some of the statements defended police overtime, and some disparaged the amount of overtime and called into question how much is enough. After all the comments Vice-Mayor Bonnie Lowenthal asked our City Auditor if she had any final comments.
What she said, and as reported in the Press-Telegram the next morning, made me smile. In essence Doud said that she was not questioning whether the Police Department used excessive overtime, nor was her department’s audit findings meant to find fault with the Department. Ms. Doud said her concern as the City Auditor was the amount of overtime over the budget. The amount may be fully justified—whether it is justified or not is not her decision to make—but it needs to be part of the budget. In essence, if the overtime is a normal part of the Police Department’s operations to protect the city it needs to be in the budget so the City Manager and City Council can properly account for the amount and make necessary adjustments to other departments. As the City Auditor Doud’s issues boil down to revenues and expenditures: actual versus budgeted. Rightfully so, in the case of the Police Department overtime issue she brought to light the amount of overtime the city has not budgeted for and therefore puts the City in a difficult financial position that needs to be addressed. Again, she offered no opinion as to the use of overtime; she did however raise concern of that amount in excess of the city’s budget.
Bravo to our City Auditor for following the duties of her office and bringing to light a serious financial situation for the City Council, City Manager, Chief of Police and other Department heads to address.
CITY ATTORNEY ROBERT SHANNON
Now, concern. While the City Attorney website provides a litany of legal matters handled by the office, it boils down to the fact that the City Attorney is like the family attorney—whatever situation you may have that needs legal advice, ask your family attorney. That is the scope of the City Attorney’s office: to provide legal advice and representation to the City and all its departments. I would also indicate that a primary job of the City Attorney is to protect the City Charter and ensure the provisions set forth are followed.
One of the most important Articles of the Charter deals with Elections. Critical to our choosing individuals to represent us as elected officials is to ensure they are residents of the city and of the area or district they will be representing. Section 502 of the City Charter states,
“No person shall be eligible to nomination for election to any office who at the time of his or her nomination and election is not a legally registered voter of the City, and shall not have been a bona fide resident of the City or territory legally annexed thereto, for at least thirty (30) days immediately preceding the first day upon which candidates are permitted to file nominating petitions for such office with the City Clerk.”
As detailed in reports at the time, and evidenced by the numerous voter registration cards completed that are part of the public record, Michael Ellis did not fulfill the residency requirements to legally be on the ballot for election to the Long Beach Unified School District Board of Education. The City Clerk denied his application at the time and after some threats by TALB to sue, City Attorney Robert Shannon disregarded the City Charter and put Ellis on the ballot. Incumbent Suja Lowenthal dropped out of the race and Ellis was elected to the School Board. A position he still holds.
In California any person who obtains office illegally or was not qualified to be nominated for office may be removed under the process of quo warranto. Last Tuesday at the meeting of the Long Beach Unified Board of Education, Matthew Kinley, Chairman of the Long Beach Area Chamber of Commerce exhorted the members of the Board to request Ellis’ resignation and knowing the request holds no authority, ask the Board to also pursue the process of quo warranto, essentially sue to have Ellis removed from office since he was not eligible to be on the ballot when elected.
In commenting on the procedure to reverse the election and remove Ellis from office, City Attorney Shannon told Press Telegram writer Kevin Butler (quoting Press Telegram) “that he does not expect a legal challenge like that proposed by the Chamber to succeed because too much time has passed since Ellis’ election. The statute of limitations would prevent that kind of legal action, he said.
“I’m quite confident a court would not touch it on that basis,” Shannon said.
So, Mr. Shannon is quite confident any quo warranto suit would be dismissed by a court due to statue of limitations. How confident is “quite confident?” Enough confidence to forfeit his office for bad legal advice to the people of Long Beach? He already made one egregious error regarding Mr. Ellis by allowing him on the ballot despite failure to meet the requirements of the City Charter, is he willing to take responsibility and be accountable for a second strike on the same issue? Or will he ignore his false assumption and carry on with business as usual?
The Attorney General says of quo warranto:
Quo warranto is intended to prevent a continuing exercise of an authority unlawfully asserted, and is not appropriate for moot or abstract questions. Where the alleged usurpation has terminated, quo warranto will be denied. (People v. City of Whittier (1933) 133 Cal.App. 316, 324; 25 Ops.Cal.Atty.Gen. 223 (1955).) By the same token, because quo warranto serves to end a continuous usurpation, no statute of limitations applies to the action. (People v. Bailey (1916) 30 Cal.App. 581, 584-585.)
(emphasis mine)
“…no statute of limitations applies to the action.” Our City Attorney gives a public opinion on a serious question as to whether an individual is holding office illegally by stating he is confident there is no case for a suit because of statute of limitations. I am not an attorney and have never attended law school, yet even with no legal credentials know our laws would not put a statute of limitations on a continuing illegal act. Our learned City Attorney, for whatever reason and motivation, instead of choosing to protect the City Charter and deny Mr. Ellis’ initial ballot application and let a court decide the matter chose to take the law into his own hands and allow his nomination. Now Mr. Shannon appears to want to discourage legal challenge to his decision and makes a false statement as to the law and its application to this issue.
As I said in my opening, Wednesday morning the citizenry of Long Beach had reason for contentment regarding the person charged with keeping an eye on the city’s finances and budgets as Ms. Doud carries out the duties of her office. Counter-balancing Doud’s professionalism and diligence is concern as to Mr. Shannon’s off-hand legal pronouncements that would deny a legal and rightful pursuit of legal action in defense of his own prior poor legal advice and action.
Through the years the City Attorney’s office has hired many, many outside lawyers and firms to handle city lawsuits and cases. I call upon the office to once again contract with an outside attorney to investigate the legal acumen and decisions of the City Attorney to determine what other false pronouncements and actions he has perpetrated on our city under the authority of his office. Just as an ineffective and poor auditor can cost our city millions of dollars, so too can poor and ineffective legal advice from our “family attorney.”
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