Please note that I have attached a complaint letter, which includes the 2 page analysis that I handed out to every Park and Recreation Committee member, to Park and Recreation Director Hugo Curiel, to Debbie Baker, Secretary, who initially puts together the Park and Recreation Committee minutes and to members of the audience at the March 14, 2016 Park and Recreation Committee meeting.
I would appreciate a response by Tuesday, April 19th before 12 pm.
Barry Levinson
Fullerton Park and Recreation Committee Member and
Concerned Fullerton Citizen
To: Fullerton City Clerk, Lucinda Williams,
Fullerton City Attorney Dick Jones of
Jones and Mayer Law Firm
Fullerton City Manager, Joe Felz
Fullerton Park and Recreation Director Hugo Curiel
Fullerton Police Chief, Dan Hughes
Mayor Jennifer Fitzgerald
Council member Bruce Whitaker
The purpose of this letter is to notify all of the above that this is a formal complaint against the City of Fullerton for several official actions taken during the last two Park and Recreation Committee meetings, held April 11, 2016 and March 14, 2016, respectively. In the below referenced items, I believe there have been Brown Act violations as well as a violation of my civil liberties under my First Amendment Right to free speech.
Item No. 1: Before the Park and Recreation Committee and the City Attorney took it upon themselves to throw out the normal rules followed for decades and not allow me to continue speaking, I made this specific point. It was that I requested in the February 8, 2016 Park and Recreation meeting the following as it is written in the minutes and I quote, “Commissioner Levinson asked that staff clarify the numbers presented by Manager Loya last month regarding her presentation to Council on November, 2010.” I believe this comment in particular was the motivation to inappropriately shut me down.
This documented request by me in the minutes must still be answered in writing with complete supporting documentation for all the numbers. The city must hire an outside, totally independent auditor (not a person or firm that the city has used previously) to step-by-step deal with the errors in Ms. Loya’s 11/2/2010 council presentation. For your added convenience my detailed analysis is attached to this letter as Attachment No. 1.
Item No. 2: April 11, 2016, an incredibly sad day for the citizens of Fullerton and a new low for the conduct of the Parks and Recreation Committee, which any honorable city would take immediate steps to correct. First, the complete failure of Deputy City Attorney, Ivy Tsai to not interject herself to correct the grave error made by Chair Lang-McNabb and exacerbated by all but one of the other committee members going along with her motion to end my right to speak as commissioner is something that I would never believe would take place in any publicly held government meeting. To not uphold the normal rules of allowing a commissioner the right to speak during the one part of the meeting that is specifically designed to allow each committee member to speak about anything regarding the Park and Recreation Department was either a grave error in judgment and common decency or part of a planned attempt to shut off any dissenting voices even from a committee member. It is only since the beginning of this year that the city of Fullerton decided (not this committee) to have a Deputy or Assistant City Attorney present at our meetings. I believe we never had them in the past and it is not clear why this was changed for this committee. Nevertheless, any City Attorney’s function at a committee or council meeting is to ensure that the committee members follow the proper rules. I am asserting that Chair Mc-Nabb (appointed by Council member Doug Chaffee) did not have the authority to stop me from speaking at that juncture in the meeting.
Please note that I was addressing the committee during the Commissioners Communications segment of the meeting and the precise purpose of that segment has always been to give each and every committee member the right to speak about any and all Park and Recreation department issues. But Chair Lang-McNabb thought otherwise, rudely interrupted me and put a motion on the floor to close the meeting. At no time during this debacle in common decency and the rights of free speech by a commissioner did the Deputy City Attorney interject herself.
I had 4 or 5 different topics to discuss, which if I were allowed to complete my remarks would have lasted no more than an additional 10 to 12 minutes. I was interrupted in the middle of my first topic. The meeting at this point had lasted approximately 90 minutes from its starting time of 6:30 pm to approximately 8:00 pm. To infer that I was wasting the time of my fellow commissioners by Chair person Karen Lang-McNabb to stay another few minutes is ridiculous on its face and shows the contempt and arrogance of Ms. Lang-McNabb’s running of the meeting. If you do not have at least 2 hours to give to the community each month for the purpose of participating in the Park and Recreation Committee meeting, I humbly suggest a committee member should resign rather than vote to cut off the one committee member who was not worried about staying a little while longer conducting the people’s business.
Karen Lang-McNabb’s action to cut me off from speaking further was in direct violation of the rules of conduct for this committee meeting and was also a violation of my 1st Amendment right of free speech. Her laughable reason for stopping my comments were these, “This is not on the agenda”. As I already stated and what Chair person Mc-Nabb already knows is that at this point in the committee meeting under Commissioners Communications, it is the commissioners who decides what they want to talk about.
Our city government should absolutely know that there are not two sets of rules, one for everybody else and one for themselves wherein they can do anything they please at any time.
Item No. 3: I believe a Brown Act violation occurred at the March 14, 2016 Park and Recreation meeting related to Agenda Item No. 7, entitled Brea Dam Recreation Area. It was Received and Filed without the Park and Recreation Department giving any verbal presentation or even one comment by Park and Recreation management or staff. How can you conduct regular city business and then refuse to discuss the Agenda item at all. Then have the Chair and Ms. Cox state that we have answered all of my questions and concerns. This in my humble opinion is a flagrant violation of the public’s trust that Regular city business put on any city agenda must be addressed. I also believe this was a Brown Act violation as well.
Item No. 4: During the 3/14/2016 Park and Recreation Committee meeting I went over for the benefit of all attending my detailed analysis. At the end of my presentation, I handed out copies to each and every committee member present, to Director Curiel, to members of the audience and to Debbie Baker, the Park and Recreation employee responsible for the minutes of the meeting. I made it quite clear to everyone that I wanted the entire presentation and supporting document, which was a total of 2 pages included in the official minutes. Not one committee member or the Deputy City Attorney Barlow objected. So when I received my packet for the April meeting I was very chagrined to see that not only was it not included at all in the minutes but also there was absolutely no reference to my presentation. I called City Clerk Lucinda Williams on Friday leaving her a detailed message about this problem the city had created for itself and I told her that I would press for its correction in the official minutes. I specifically asked her to call me as soon as possible, which would have been early Monday morning. Ms. Williams who in the past has always responded to my voice messages very promptly never did call me back. However, she obviously informed people at city hall as one of the first things done at the next meeting was to do a mea culpa that this complete lack of reference to the most significant item that happened in the March meeting was “accidentally left out entirely from the official minutes. To make matters worse, the Department refused to put my presentation in the minutes as I had requested without any objection and when I questioned that decision once again the Deputy City Attorney Ivy Tsai rather than deal with the specific facts gave a general answer that what is placed in the minutes is up to the department.
This scenario starting by me as a sincere and straight forward attempt to get the Park and Recreation Department to address serious and large dollar errors I had found in Ms. Loya’s 11/2/2010 council presentation representing her department and her still including variations of the same errors in her 01/11/2016 presentation before the Parks and Recreation Committee. It has now evolved in what any objective clear thinking individual must conclude is an orchestrated cover-up. The amount of time the Park and Recreation Department and Committee has used to not answer simple questions continues to get bigger and bigger. The Chair Lang-McNabb and the newly seated and appointed by Mayor Fitzgerald, Gretchen Cox have complained that what I have requested has not only been answered but more than once. This is categorically not true. Again a few simple direct answers could either answer my very legitimate questions or demonstrate that Ms. Loya’s presentation was flawed and resulted in the city council on 11/2/2010 entering into a Management Agreement that was indeed not a better financial deal by $133,480 a year as presented to council by Ms. Loya but a deal that was entered into by then Acting City Manager Joe Felz to the financial detriment of $4,000,000 to $5,000,000 in net revenue loss over a 20 year period starting in 2010.
As part of this complaint, I am asking for written apologies from Ivy Tsai, Karen Lang-McNabb and Gretchen Cox for their involvement in taking away my right to speak at the 4/11/2016 Park and Recreation Committee Meeting. I am also requesting a written apology from Director Hugo Curiel for his failure to include my Fullerton Golf Course Analysis in total as I requested without any objections noted by any of the commissioners, department members or from Assistant City Attorney Kimberly Hall Barlow. I am also requesting that these gross errors do not persist at future Park and Recreation Committee meetings.
My requests are simple and can be easily met if the city of Fullerton chooses to do the right things going forward.
Respectfully,
Barry Levinson
Fullerton Park and Recreation Committee Member
ATTACHMENT NO. 1
BELOW IS THE ANALYSIS I HANDED OUT AT THE PARKS & RECREATION COMMITTEE MEETING AND DISCUSSED AT LENGTH ON MARCH 14, 2014 AND REPORTED ON AGAIN TO FULLERTON CITY COUNCIL DURING PUBLIC COMMENTS ON MARCH 15, 2016. BY BARRY LEVINSON
| MS LOYA’S 11/2/2010 COUNCIL PRESENTATION | CORRECTING MS. LOYA’S PRESENTATION | |||||||||||||||||||||||||||||||||||||||||
| FY 2011 | ||||||||||||||||||||||||||||||||||||||||||
| LEASE | MANAGEMENT | M. A. – USING CORRECT AMOUNTS | ||||||||||||||||||||||||||||||||||||||||
| AGREEMENT (M.A.) | ||||||||||||||||||||||||||||||||||||||||||
| GROSS REVENUE | $2,230,000 | $2,230,000 | $2,230,000 | |||||||||||||||||||||||||||||||||||||||
| LESS: | ||||||||||||||||||||||||||||||||||||||||||
| OPERATING COSTS | $1,140,000 | $1,140,000 | $1,140,000 | |||||||||||||||||||||||||||||||||||||||
| CITY LEASE REVENUE | $420,000 | – | – |
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| AM. GOLF M. FEE | – | $500,000 | $670,000 | |||||||||||||||||||||||||||||||||||||||
| RZEDB DEBT | – | $36,520 | $203,323 | *Average cost to city for principal & | Interest rebate. | |||||||||||||||||||||||||||||||||||||
| Interest over 20 years of the bond
Including 45% federal interest rebate. |
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| NET REVENUE | $670,000 | Ameri-can | $553,480 | CITY | $216,677 | Actual Average City Revenue earned | ||||||||||||||||||||||||||||||||||||
| Golf | under Management Agreement. | |||||||||||||||||||||||||||||||||||||||||
| Average yearly loss for city by changing from former Lease agreement to Management agreement ($420,000 – $216,677) = $203,323 | ||||||||||||||||||||||||||||||||||||||||||
| Overstatement of average net revenues under the Management agreement = $553,400 less $216,667 = $336,332. | ||||||||||||||||||||||||||||||||||||||||||
| Alice Loya claimed on 11/2/10 before council that the Management Agreement would net an additional $133,480 dollars to the city while in fact it lost $203,323 dollars. | ||||||||||||||||||||||||||||||||||||||||||
| * Total series A Principal $2,705,000/20 years = $135,250 + (total series A interest $2,475,381/20 years = $123,769 x .55 = $68,073) = $203,323. | ||||||||||||||||||||||||||||||||||||||||||
| Therefore, Ms. Loya’s presentation to the council that this change from a lease agreement to a management agreement, would over the course of the bond bring in more revenue to the city was in fact not correct. | ||||||||||||||||||||||||||||||||||||||||||
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Over the course of the 20-year life of the RZED Bond, the city will loose conservatively at least 4,000,000 dollars in net revenue and at the same time it takes on liabilities that did not exist under the former lease agreement. |
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| Please also note that under the lease agreement city revenues would have increased based on the increased gross revenues from the golf course, which was already up over 13% from FY 2011 to FY 2014/2015 as reported by Ms. Loya in January, making this an even worse deal than the numbers above show. | ||||||||||||||||||||||||||||||||||||||||||
| Finally, the amount Ms. Loya presented to the committee in January 2016 for the Management fee for FY 2014/2015 of $587,000 is understated by $103,302, as the correct amount is actually $690,000 ($670,000 in base year, (not the $500,000 reported by Ms. Loya) times three one percent annual increases per the contract terms.) | ||||||||||||||||||||||||||||||||||||||||||
| The RZED Bond Debt amount per Ms. Loya is also grossly understated. The correct amount is (100K principal + ($185,550 int. X .55 = $102,053) = $202,053 and not $107,000 as Ms. Loya reported to this committee in January 2016. | ||||||||||||||||||||||||||||||||||||||||||
Conclusion: The numbers as presented by Alice Loya to council on 11/2/2010 and on 01/11/2016 to the Park and Recreation Committee misrepresent the financial benefits of the Management Agreement over the former lease agreement. This resulted in the council approving a Management Agreement that will cost taxpayers 4 to 5 million dollars in lost net revenue over 20 years.
Fullerton Golf Course Management Agreement 12/01/10, Page 12 of 23
reports of claims activities on a schedule and in a format reasonably acceptable to the City. City understands and agrees that with respect to all policies of insurance required under this Article 4 (whether such policies are maintained by City or by AGC), the portion of any losses, damages, and expenses paid with respect to such claims which is subject to a deductible amount or a self- insurance or a self-assumption amount shall be the sole responsibility of City. If at any time during the term of this Agreement, City desires to assume responsibility for handling of claims, the parties may amend this provision as provided in Section 11.8, subject to (i) the approval of the applicable insurance companies, and (ii) the reasonable approval of AGC.
ARTICLE 5 – MANAGEMENT FEES
In addition to the costs and expenses to be reimbursed to AGC pursuant to this Agreement, City shall pay AGC the Management Fee computed and payable as follows:
5.1 Management Fee. In consideration of AGC’s services during the Operating Period, City shall pay to AGC a “Management Fee.” For the first twelve (12) months of the term of this Agreement, the Management Fee shall equal Six Hundred Seventy Thousand Dollars ($670,000) per annum (i.e., Fifty Five Thousand Eight Hundred Thirty Three Dollars and Thirty Three Cents ($55,833.33) per month). The Management Fee shall increase on each anniversary of the Effective Date (until termination of this Agreement) by one percent (1%) of the Management Fee in effect immediately prior to the applicable increase. The Management Fee shall be paid to AGC, in equal monthly installments, in accordance with Section 5.2 of this Agreement.
5.2 Payment Schedule. If the Commencement Date does not fall on the first day of the month, then the Management Fee for the first partial month of the Operating Period shall be the pro-rata portion of the Management Fee and such amount shall be payable on the Commencement Date. Commencing with the first full month of the Operating Period, City shall pay AGC the Management Fee monthly in advance on the first day of the month to which it pertains.
ARTICLE 6 – ACCOUNTS; WORKING FUNDS; RECORDS AND REPORTS
6.1 Bank Accounts. City shall establish bank accounts for the Facility at a banking institution or institutions reasonably selected by City, (which banking institution or institutions shall have branches located in close proximity to the Facility), such accounts to be in City’s name (the “City Accounts”). AGC shall also establish bank accounts for the Facility at a banking institution or institutions reasonably approved by City, (which banking institution or institutions shall have branches located in close proximity to the Facility), such accounts to be in City’s name (the “Facility Accounts”). AGC will deposit into the City Accounts all monies received by AGC from the operation of the Facility. City shall deposit all funds required to be furnished by City as working funds under Section 6.3 of this Agreement into the Facility Accounts, and AGC will disburse those monies from the Facility Accounts only for the purposes set forth in Section 6.2. Notwithstanding the provisions of the foregoing, AGC shall be entitled to maintain funds in reasonable amounts in “cash register banks” or in petty cash funds at the Facility.
#1 by Telling It Like It Is on April 18, 2016 - 9:36 am
Fullerton Lover please share the name of the property owner with the rest of us.