In her last business meeting of the Cypress City Council, embattled Council member Frances Marquez, Ph.D. got a rare win, at least in that the Council said no to what she termed yet another apparent attempt to humiliate her.
Marquez, who will term out this month, has been marginalized by a series of steps approved by the Council after she began her term speaking out for items not necessarily embraced by the the ruling three vote majority on earlier Council memberships.
Grant last week attempted to push a measure through the Council, based on the Marquez example, that would force Council members seeking outside representation to provide additional documentation to the city manager’s office.
Though simplified for this news story, Marquez became a thorn in the Council’s side when it approved a $100 million contract for Valley Vista, then spoke in favor of districting, then called out various actions for a lack of transparency.
The Council dealt with Marquez by initially taking away her monthly stipend, forcing her to get city manager approval for most every move she tried to make, and according to Marquez, did not afford her the information and other opportunities offered to other Council members.
For this meeting, however, the city manager’s proposal would die for the lack of a second.
According to the city attorney Fred Galante, City Manager Peter Grant directed him to draw up a proposal that would force City Council members who face legal problems to run certain parts of the paperwork through the city manager so that they could, in turn, seek City Council approval for the official to acquire outside counsel at the city’s expense.
At issue, again, is the Marquez situation, in which she has faced an unrelenting series of legal challenges, depositions, and other obstacles presented by an unrelenting lawsuit filed by an unnamed client, represented by Fortis, LLC, an OC law firm.
Marquez’s retention of outside counsel came in the face of significant pressure from the city manager and presumably a conflict of interest with the city’s existing law firm. She said the Council city had already declared its opposition to districting so she suggested, and said other lawyers advised her to retain her own counsel.Mayor Scott Minikus introduced the item saying it was “to approve a resolution adopting procedural requirements as prerequisites for any council member wishing to retain separate legal counsel on city related matters.”
First of all, Council members David Burke and Marquez said the matter should not have been placed on the agenda at all, citing the existing practice of placing items on the Council’s agenda that were not followed.
That aside, Galante laid forth the process involved in this proposed process. Galante, who said his firm has represented Cypress “for decades and decades,” denied there was any legally recognized conflict of interest in the matter.
“If there is some divergence of interest because there’s an allegation that the particular name defendant acted outside the scope of employment there’s some control and the ability for the city. The policy before you establish those steps and gives the City Council that authorization to make those decisions,” said Galante.
Grant alleged or suggested the lack of control had already cost the city.
“We did not conduct research as to whether or not processes like this exist in other cities,” said Grant,
“I think it’s important to remember that what we’re describing here is a process that leads to the city council making a well-informed decision,” he said.
“We’ve had two instances that this would have applied to in the last four years that have cost the city, just in sheer dollar terms, well over $200,000,” said Grant, “and well over that if you fold in the associated aggravation and staff work.”
“I just want to make a point about the $200,000 is false,” said Marquez, “I paid my own legal bills.” She suggested that if the city truly care about saving money on legal bills, they could have settled the case like she advocated for $30,000 instead of playing politics and ending up spending more than $1.5 million in legal fees on the redistricting issue.
The city paid Kevin Shenkman’s firm, the Malibu firm that alleged the city was in violation of the state’s Voting Rights Act, almost $1 million alone.
Galante stopped her, saying that part was not appropriate for public discussion at this time.
Marquez continued.
“I was thinking of the residents and protecting taxpayer dollars with my decision,” she said. “I want to say this item was brought to the agenda as one last way to embarrass myself and I wanted to say this is related to the CRVA lawsuit, which I did not support.”
“My colleagues decided to fight (districting) and put me through a lot for my stance on the issue,” said Marquez, noting the harassment began in early 2022.
Marquez said she hired her attorney to go into depositions given the known attitude of the city manager towards her and she claimed the city’s legal advisor never advised her of state law that already has a process that applies to such situations.
Galante said he sent more than one email to Marquez’s attorney advising him he had no legal right to bill the Council. The city attorney said there was no legal conflict that would have prevented his firm from representing Marquez.
Burke, an attorney, had concerns specifically about the new policy violating attorney-client privilege.
First, he too disagreed with the City Manager’s statement that the lack of such a policy had cost the city $200,000.
“I don’t think the city has paid someone separate legal counsel $200,000 or anything like that so I didn’t I don’t think that’s happened,” he said.
“This is really just about a process for approval,” said Burke, who questioned why should the city of Cypress have a policy controlled by the city manager when state law already makes it clear for elected officials.
Further, he said the way Grant’s policy was drawn up, it would be almost impossible not to violate the elected official’s attorney-client privilege.
“This is not just a reminder, this (policy) adds a lot of new procedural requirements and regarding the law, like the privilege question,” Burke.
“I know Council Member (Anne) Mallari says she didn’t notice privilege concerns, but paragraph E says that the council member has to provide all their legal invoices to the city manager. I believe that in some capacity, or in some cases have held that legal bills are under some circumstances privileged so how can the council members share their legal bills highlighting privilege,” he asked.
“What if the city attorney doesn’t agree with the outside counsel’s legal strategy then the council member can appeal to the City Council to assess it? Well, how can they share their legal strategy without breaching the attorney-client privilege,” wondered Burke, said the proposed policy was flawed.
“We need to take time to think this stuff through,” said.
Mallari said the policy was similar to a purchasing policy, where the city manager’s role was simply to ensure all of the components were in place.
She moved the item for approval.
Instead of seconding the motion, Mayor Pro-Tem Bonnie Peat revealed that, after listening to the discussion, she had a different understanding of the issue.
“We asked the question over and over again, saying how can this happen, this shouldn’t happen, so I like it thank you for putting the process together,” she began.
I’m inclined to put it to a point where you have a state law, and you have maybe a specific set of steps that a person must do (to hire outside counsel).
“And then we have to apply it and I don’t think we can fight it and just say no. We can follow the process,” she said, suggesting that instead of putting this policy in place the staff inform all council members during orientation of what the policy is for obtaining outside council.
“So my thing is supposed to be proactive, so let’s get it down up front with everyone and I’m hoping we never have to use it,” she said, “but how council members understand what it is, what happens, and how it happens which is inevitably the point.”
“Tonight’s discussion kind of led me to a slightly broader understanding for me so I’m OK with having no second (to Mallari’s motion).
With that, Galante said the motion dies for the lack of a second and instead, incoming council members will get a better understanding of state law.
Marquez, who will term out in December, has since all of this began filed her own Civil Rights lawsuit in federal court, suggesting the city manager nor the council had the legal right to restrict her ability to represent citizens, among other specific claims.
“Why,” asked Cypress resident Paul Kokkinos during oral communications?
He questioned how the city manager and city council could not know who was behind the Fortis, LLC legal treatment of Marquez. “It may be that you already know but we don’t know and don’t you think it would be in the public’s best interest to know and share.”
“This whole thing creates more questions than it answers. Why now,” he asked?
“Maybe based on election results, the historic voting bloc that I’ve called a cabal is probably no more,” he said.