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Wednesday, April 26, 2017

By Darlene Lofgren

The April 18th regular Compton City Council meeting was moved to April 19th last week, due to the April 18th primary election.

At the meeting on the 19th, City Attorney Craig Cornwell gave an oral report on what the agenda listed as "Measure P Litigation."

Present at the meeting were Councilpersons Janna Zurita, acting as mayor pro tem; Tana McCoy and Emma Sharif.  Absent were Mayor Aja Brown and Councilperson Isaac Galvan.

Relevant to Cornwell's report: last year in an election conducted by Los Angeles County, Compton citizens voted, in a close election, to add a 1 percent (on the dollar) sales tax to Compton.  The ordinance was called Measure P and required that the 1 cent sales tax be used exclusively for certain issues: the streets and public safety included.

Not long after the election, it was believed by some citizens that non-city ballots had been counted and were illegal; therefore, they filed a lawsuit against the Los Angeles County Register Recorder protesting the election - thereby, according to some, overturning Measure P. However, even if voter fraud occurs, the court does not necessarily throw out election results. 

Meanwhile, it was not mentioned for some time at Council meetings.  Ultimately, at a council meeting, when asked to respond, the City Attorney stated that the lawsuit had been filed against the county; and the city was not therefore involved.

Also, recently some of the sales tax funds came in and the council has been discussing the use of those funds, according to what Measure P mandates.

But more than one council member has expressed concern with the idea that if Measure P is overturned, will any funds the city has been given as a consequence of Measure P, have to be returned by the city?

At a recent meeting, the city attorney told council, no, the funds would not have to be returned.  He used the metaphor of "trying to put toothpaste back in a tube."

Last week on the 19th he made the following statement:

"I have gotten a series of enquiries regarding this Measure P litigation and the impact that it has on the city's receipt of sales tax funds.  And we talked about it at the last council meeting.  I put a written memo to city council and yet we're still having enquiries so I thought it would be wise if I made another public statement regarding it.

"As I said before, there's currently litigation.  The filer of the lawsuit is Miss Boone (a Compton citizen) vs. Los Angeles County Register Recorder.  The issue before the court is an election challenge.  There is a belief that folks outside of the city's boundaries were able to cast a vote on our sales tax initiative. 

"There is four items being sought in that litigation; that the county register recorder be ordered to make available all ballots-counting involved in Measure P; that they be allowed to cross check every address with the precinct maps; that all further recount fees be waived; and that Measure P be voided.

"So that is under election law," said the city attorney.

He went on to speak of the California constitution, Article 13, Section 32, in reference to whether or not Compton would have to return funds given it, such as by Measure P.  He quoted that part of the constitution, including that if a payment is made illegally, "an action may be maintained to recover the tax paid in such manner as may be provided by the legislature."

However, he emphasized, "The legislature has not provided a scheme under election law to recover a tax.  There is a procedure under the tax and revenue code where that could happen - BUT that's not the lawsuit that was filed."

"I didn't file it.  I'm not a part of it.  The City's not a part of it," said Cornwell.

"There was also some, I'll call it, chatter that there could be a temporary injunction, some sort of action before this election law matter that could affect this city.  There's no jurisdiction when that judge will be faced with the California constitution and the case that we're not a party to, to be able to enjoin the city.

"My legal opinion may not be shared by folks in the audience.  It may not be shared by folks on the dais.  But I ask you this, if you want to disagree with my legal opinion, read the California constitution.  Read the case that was filed.  Read tax and revenue code 72.70.5.  It's not just an opinion like my favorite color or TV show.  It's a reasoned opinion and I stand by it. 

"Now the city may also say, as a business practice, we don't wanna spend the proceeds...If the question to me is 'is there a legal impediment to spending Measure P funds,' my answer as City Attorney is no."

"With all that being said," responded Mayor Pro Tem Janna Zurita, "it's quite confusing, so I asked you to give your opinion in writing.  I haven't received that yet."

He said, in some amazement, that he had.  She said he hadn't.  He said he sent it.

"I didn't receive it," she reiterated, "so send it to me again."

She then had him clarify that when he referred to himself as not a part of the litigation, he was speaking of himself as the city attorney. 

"I said the City is not part of the litigation," he said.

"It makes no sense to me," said Zurita, "that the funds are not in question."

"The funds are not in question," said Cornwell.

"They are!" she replied, "The funds are generated by Measure P!"

"The funds are not in question based on a lawsuit," said the city attorney, "What is in question is the ballots."

Zurita said "Okay.  So to go further, if election fraud is determined and ruled, in that case that overturns Measure P."  She rephrased her belief, and at length, that the root of the case is Measure P, and if the election fraud is proven, and the election ruled illegal, then the city might have to return millions of dollars.

"We have two different opinions" she said "and I'm not saying your legal opinion is not correct...But I don't agree with it."  She repeated her point of view in detail, ending with "so who's responsible for paying the funds back?"

The city attorney began an explanation, but the councilperson cut him off.

"Let's be simple," she said.  "Measure P election day - wrong people voting.  That's what we're talking about here.  That's the issue."

"I can't have you frame the issue when I'm trying to respond," said Cornwell.

"My question is: Measure P generates funds to the city of Compton -" said Zurita.

"But the law says," replied Cornwell, "there's a process to contest exactly your issue..."

He stopped, then started again.

"You may be right.  Ms. Boone may be right in her lawsuit.  What's before the court," however, he said, again with great emphasis, "is not a tax and revenue case that gets you to refund the money."

"That would be great...believe me," said the councilperson.  "I want to spend the money.  I want to fix the streets, but I don't want to be stuck on a council that has to figure out how to pay back millions of dollars."

She then spoke of rulings and various scenarios and ended with "if the election is overturned, what's the consequences?"

"A new election," he said.

"So the funds would stop right there being collected?" she asked.

"Yes," he replied.

"And what about that money we collected?" she queried.

"That's not -" he began.

"It was generated because of Measure P," she added.

"I didn't file a lawsuit!" he said.

"But you do understand my question?" she asked.

"Yes," he responded.

"All right," said Zurita.  "So long as we have it in writing, and I mean...what do you do?  You got a city attorney and you gotta accept an opinion but I just wish that maybe for the benefit of my ability to spend the money with a clear understanding, I'd like to see a second opinion on it."

"Okay," said Cornwell.  "That's the end of my report, but again -"

There was then a spatter of some laughter in the chamber.

"This is far from being funny," snapped Zurita at the audience.  "We're talking about maybe eight million dollars before this matter even goes before the judge.  I mean this is not a laughing matter.  Some things you gotta take serious.  So, Mr. City Manager (Cecil Rhambo), I'm gonna request that you go out - I think we have a list of legal firms that we can use - and get a second opinion on the case that's filed as it relates to Measure P."

"He's got no authority to do that," quietly asserted the city attorney.

"I believe I do!" answered the mayor pro tem.  "We have a list of legal law firms that we can use, in the city manager's office."

She went on to say that Cornwell had provided the list.  "Now if it's a fictitious list," she said, "now that I want to use it..."

"I don't know exactly where it is in the charter," she continued, "that says the mayor/council can go out for a second legal opinion, but -"

"You didn't ask the mayor or council," explained Cornwell.  "You asked the city manager."

"I'm not gonna call a legal firm and get it," she said, indignantly.  "That's what his job is to do for me."

"But," said the attorney, "the council hasn't decided to do it."

"Okay," she said, "Can I have a motion -"

"It's not on the agenda," interrupted Cornwell.

"It doesn't matter," she said.  "I'm gonna do a - what is it called, Madam Clerk? - a minute motion, a -"

"It's not on the agenda," said Cornwell.  "And it's improper to have a motion -"

"You can't -!" started Zurita, then changed her mind.  "Mr. City Manager, can you agendize it for next week?  I'm not gonna sit here and argue with you," she directed to the city attorney.  "So Mr. City Manager, can you agendize it for - so we can - I mean, what's the problem here, why are you in fear getting a second opinion?" she asked Cornwell.

"It's not on the agenda," said the attorney.

"So you mean to tell me," asked Zurita with incredulity, "that you cannot -"

"Just come up with a motion?" said Cornwell, finishing her sentence for her.

"Yes you can!" she insisted.  "It probably falls under the minute motions that you like to use."

For an item that's on the agenda, he explained.

"I don't agree with that," she said.  "...I don't believe that's legal!"

Councilperson Tana McCoy calmly inserted the question as to could the city be told they can't use the funds.

Cornwell answered, "There's a statute of limitations."

Councilperson Emma Sharif asked if she was "on the right path" in thinking that "a judge can only deal with the case in front of them, and you're telling us that this case doesn't deal with the funding...so the only thing the judge can make a decision on is the election itself.  Does that kind of clarify things?"

Yes, she was told.

More back and forth occurred between Cornwell and Zurita. 

Ultimately, she said, "So, Mr. City Attorney, so I'm clear, there is no list for the council to pull from for legal representation?"

He said the "list" was actually a resolution for a panel.

"So it ain't a list, it's a panel - who ultimately answer to you," she replied.  "Not to us as a council or to the city manager.  They would be answering to you."

After more exchanges between them, the attorney said "the relationship, whether city attorney or outside council is between city council and the attorney.  It does not include the city manager, so when you directed the city manager, that's the only thing I responded to.  He doesn't have the authority."

After more discussion on how to get a request for a second opinion before council on the agenda, it was established that she had done so by asking the city manager to place the item on the next agenda.

"So my request now is good for this?" she asked.

"Yes," answered the city manager.

"Thank you, sir," she replied.

Reporter's Note: one of the main reasons a council has an agenda is to protect the citizens from a council action taken without notice.  The agenda is posted in a public place; the requirement is usually at least 72 hours before the meeting, so citizens can see what actions might be taken.  Public comments on an issue not on the agenda cannot be addressed with council taking any action, either, for the same reason: to protect the public.