Derry Referendum -- The Law is a Ass -- Councilman Andy Cohen's remarks
Original post made by Morris Brown, Menlo Park: Park Forest, on Dec 2, 2006
They were made well after 11:00 PM and they certainly deserve to be well noticed.
Menlo Park Tomorrow (sponsor of the Derry Referendum)
Councilman Andy Cohen's final comments in the debate on taking action regarding the Derry referendum at council meeting of Nov 28, 2006)
The Law is a Ass
(for those who have not read or have forgotten, this is a rather famous
quote from Charles Dickens "Oliver Twist"). Google this if you want more information.
(Starts with dialog between McClure (M) and Andy (A) ).
A: what is the time limit for us , the city the council to place this on the ballot
M: The statues provides that the petitions are to be presented to the city council at the first meeting after they're submitted to the city clerk. And then if they are in the proper form, then the city clerk is to certify them to the City council, and the City council is then to act, to either repeal the ordinance the legislative action or to place it on either a special or general election ballot.
So its at that meeting that technically the city council is required to act
A: and we haven't done that yes?
M: that is correct
A: How do you explain that?
M: There is a question as to whether legal validity of the petition form and whether this is the proper subject of a referendum.
It a legal question and there are court cases that say where it is a legal question, the city clerk, should not reject the petitions on their face, but if the city clerk cannot make the legal determination that the are valid, the city clerk also can't make the certification that there're valid.
So the signatures were presented to the council without making a determination as to their validity
So the council can make a finding that they are valid and can either repeal the ordinances
or can make it a finding that they are valid and set it for an election.
or If council is not prepared made the finding they are valid, the council could make a finding they are invalid or there're a not a proper subject for a referendum and could reject them.
or it could direct the declaratory relief action be filed.
A: the council could take this action either one or any of the 4 , up to seventy-five days approximately from today, without any penalty.
M: There is no penalty for not acting.
The penalty in essence, the remedy for not acting is for one of the petition proponents to file an action for writ of mandate to seek a court order, ordering the city to act. and that action if filed, if the city has improperly acted, the city may have exposure to pay the petitioners attorneys fees
If its determined they are not a valid form of petition, the city has no exposure for attorney fees:
A: and you have told us this at least at least a half dozen times, now haven't you.
M: I have
Now I think the law is a ass, thank you Mr. McClure the law is a ass, and make no mistake about it. What is going here is a very subtle game and its being played by everybody in the room. But there are some distinctions.
#1. The OBrien group who initially said that some of these units would go for 600 K then on their web site turns up close to 800 K for the same units and the concern I hear from my fellow council members about this undemocratic closed process actually consisted of over 2500 valid signatures, irrespective of technicalities which are being played up to the hilt and are being used by the OBrien group as a basis to getting our council to use our attorney to file a declaratory relieve action.
Now why would he do that, after he hired all those, I'll respectfully call them individuals, to follow the petition gatherers around, perhaps not harassing them, just interfering unintentionally if you will, with their process and now I wouldn't trust for a moment that it will not turn out to be anything but a step this council will take, that will then be twisted in media relations to be something done by the City because of the very thing I hear from the podium tonight, that someone, an individual named Morris Brown, not named by you, but Morris Brown is behind closed doors has bought his way into the bargaining process when 3 years through careful open public process, that left even my most knowledgeable cabinet member unaware of the implications of the combined zoning ordinance change and general plan change.. An amazing 1:2 punch that doubled the density, raised the height, didn't mitigate and ultimately this council accepted 100K dollars for a El Camino traffic study in mitigation.
Now I can't possibly support this reading of the facts. I don't think there were all those miss-representations, in fact I think what happened is a lot of Menlo Park residents became outraged by the message being used by the OBrien group, and rallied to sign this referendum petition.
And that's what really happened.
Now do we have to act? No we don't
Can we wait 75 days? Yes we can
Why wouldn't we do that?
Why wouldn't they be left to continue to negotiate? Why wouldn't we encourage them to get a facilitator, to get a conflict resolution expert to help them do it? I can't think of a single reason not to.
So I will not support the ideas proposed here tonight. I think no action is the best action, because the Law is a Ass.