A City, If You Can Keep It: The new normal

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A Winters Express opinion column

By Richard Casavecchia
Special to the Express

The election is final. The votes are tallied. Three new city councilmembers have been selected by the people. The new normal is underway. And “A City If You Can Keep It” is off the shelf. I am still unpaid, write at a frequency that I decide, on topics I choose, and that is how it will stay so long as I keep this up.

The real question though is who will sit in the audience for meetings with Chief Miller and the rest of the city staff now that I am on the opposite side of the room? We need a new audience member.

This column has to change. I anticipated this. I’ve been reading as much as I can find about to get a handle on how my ability to communicate about topics of public interest would change after the city elected me.

I’ll say up front — I do not subscribe to the strategy of saying nothing. While staying silent on matters of public interest that may come before the city council is the safest strategy to avoid litigation and avoid the need to recuse oneself when done indiscriminately, the law does not prohibit public officials from speaking before they vote.

Quite the opposite, the California Appellate court affirmed as recently as 2020 a statement from a 1975 case that “A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance.”

The implication I read in the context of both the 1975 and 2020 cases is that council members are able to speak to voters and community members and express their views on matters of public interest without recusing themselves for bias. I assume if the original opinion was authored today the gendered language would be more inclusive, after all, we have elected two capable women as well.

I think we get a better outcome for our city when there is a robust and regular healthy dialogue between elected officials and the electorate. How can the will of the people be represented otherwise? I still maintain that some of the tension surrounding Keep Winters Winters could have been alleviated with some careful frank conversions, while still maintaining a legally-unbiased city council.

However, discussions are not without limits.

The legal standard of bias that should require recusal is “an unacceptable probability of actual bias.” According to the courts, actual bias does not have to be proven.

As a rule, Planning Commissioner and City Councilmembers cannot support or oppose an application of any kind prior to voting, they cannot express an opinion on what something must have to be approved, and they cannot have an economic interest related to petitions or applications that need their approval. So, no voting on permits for property within 500 feet of your house or business, no saying a new development must have a merry-go-round, and no cheerleading.

A Planning Commissioner or City Councilmember must enter each hearing with an open mind. Due process must be given to each and every applicant before each body. No prejudging an application, no rounding up votes to approve or kill an application ahead of time as occurred in the 2020 case mentioned above, no adding facts not presented in a hearing, no voting on the basis of your own best interest, etc.

This is required by both the United States and California constitutions.

I suspect at times I will give our very capable city attorneys and city manager some consternation if I write about certain topics. I may even annoy or irritate my fellow councilmembers by doing so and expand their comfort zones over the next few years if they are inclined to be tight-lipped. But, I will take all appropriate precautions to ensure I do not exclude myself from voting, and ensure every petition before the City Council receives due process with a fair and impartial review from the complete council. There is a method to the madness.

So what can you expect?

The thoughts behind votes may be expanded upon after the fact. Finances may be reviewed. Columns may be infrequent. Concepts and ideas may be discussed about suburban development patterns. And of course, some columns may be sent to the city attorney first to ensure I am not going too far. The goal is to inform.

Conversations with other councilmembers or city staff will not be detailed unless the other party in question consents. Nor will confidential items or specific issues or applications that are unresolved. And if you are hoping to read about me criticizing a member of city staff you will be disappointed as that is not how I operate as a manager.

Not every topic will get a write-up. My thinking is I will often stay at the strategic/policy/regulatory level discussing rules, regulations and norms. I also hope to continue to come up with more personal whimsical opinion columns than dry commentaries on topics of interest since those are far more fun to write. But we shall see how things go, it will be a process to see what works in the new normal.

If we want to build a strong town, we have to discuss it. So let’s get to work.

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