After considerable debate, the Cypress City Council has decided to keep salary suspension as a penalty for city employees’ perceived misconduct after a split vote to revise the city’s Civility, Conduct, and Governance policy.
The item was placed on the agenda by City Manager Peter Grant for what officials called a one-year update.
Soon, however, many old political fault lines emerged as they discussed whether the city had the right to withhold the salary of an official legitimately elected by the people.
At issue, of course, was the salary of Council member Frances Marquez, which has been withheld since the previous council issued her a verbal censure.
The city has no legal right to withhold her salary, argued Council member David Burke, himself an attorney, citing cases where courts have, in fact, seemingly suggested the contrary.
Keeping the salary penalty clause puts the city at risk for a lawsuit, Burke suggested.
Not so, argued city attorney Fred Galante, who acknowledged the case cited by Burke, but said the courts have not ruled specifically on the issue so there is no prohibition for withholding a salary.
And, said Galante, if for any reason the city council were to vote to lift the salary provision, it would not be retroactive, meaning Marquez would not receive any salary she has not been paid before the vote.
At best, said Burke, the issue is not settled law, so he wondered aloud why the city would take a chance on being sued by leaving the provision in the policy.
Marquez suggested the actions were overly punitive and created legal liabilities for the city.
“When a member (of the Council) is elected, they are elected by the people,” said Marquez.
“I have never had a job where somebody took away my salary, not during my entire life. I’m a college professor. My colleagues never had the right to do that,” she added.
Marquez’s passionate plea to remove salary suspension as an authorized punishment comes after the councilmember had been the subject of the censure clause twice in the previous year.
Using personal experience to cite her defense, Marquez claims that the 90-day salary and stipend suspension her colleagues saddled her with was “painful” and “damaging.” Moving forward, Marquez believes that it is “really important that this doesn’t happen to anyone in the future.”
According to public salary records, the salary for Cypress council members is $832 a month.
Burke said when he tried to research the commonality of this instance, “our city was the only instance I could find of a council member voting to suspend another council member’s salary.”
Based on his legal research, he said the issue is seemingly exclusive to Cypress.
“It’s not customary in government or the private sector for one’s co-workers to be able to vote to take away their salary while they continue working,” said Burke, who finds the provision “odd” at the very least.
The censure clause in question falls on page 11 of the city’s Civility, Conduct, and Governance Policy under “Revocation of Special Privileges.”
The policy states that shall any member of the council be found in violation of the code or engage in other misconduct, the city council may discipline them accordingly using either an individual or combination of sanction options listed on the agreement.
In addition to the options to “warn, direct, and reprimand,” the current civility policy allows for the revocation of special privileges.
According to the policy, it authorizes the revocation of a Council Member’s committee assignments, regional board and commission assignments, and community-generated board/committee appointments, suspension of official travel, conference participation, access to a City credit card, City Council salary, stipends and benefits, and ceremonial titles.
The Council debate included a motion to strike the ability to take a person’s benefits and salary.
“If necessary, I would hope that it would be a very much a last-ditch effort,” said the mayor.
However, in addition to the fact that no city has been found to have enacted a censure to this extent, Burke points to the legal implications the financial penalty may pose to Cypress.
“So one of my concerns with this is, no court has ever said this is okay, no court has ever said it’s not okay. But it’s never reached the level where a court has decided that it’s permissible as a part of censure to take away an elected official salary and stipend.”
“We should not risk getting the city into a legal battle over a provision that simply isn’t necessary,” Burke said.
In regard to the illegality of the sanction item, Cypress City Attorney, Fred Galante, agreed with Burke that the law does indeed prohibit salary change from occurring during a council member’s tenure.
Nonetheless, Galante said censure is temporary and therefore, the law as currently anticipated does legally allow the city to withhold a salary.
Unlike a censure, said Galante, “that’s a permanent change and the law is very clear on that.”
Since the sanctions are temporary by nature, the council is authorized to impose varying conditions upon a censure, including those that have a financial penalty, the city attorney told the Council.
Ultimately, the Council voted 3-2 to keep the salary provision in place.
Councilmember Bonnie Peat, Mayor Pro-tem Scott Minikus, and Mayor Anne Hertz-Mallari, stood by their decision to keep salary and stipends on the policy as Burke and Marquez voted against.
“The revocation of special privileges comes pretty far down the process. And I hesitate to eliminate the council’s ability to implement these at their discretion,” said Mayor Hertz-Mallari.
“There has to be consequences for actions,” said Mayor Pro-tem Scott Minikus, especially when “progressive disciplinary” actions have already been enacted.
The history Minikus appears to be referring to is in response to Marquez’s defense regarding her experience with the punitive sanction last October.
Censured for leading a controversial high school campaign alongside prospective candidates, the incident yielded a slew of parental complaints for the city to shoulder. As a result, the incident came as the “final straw” for her colleagues to take punitive action.
With her punishment being backed by the verbiage written in the policy of question, Marquez says she was “quite stunned” to learn that her colleagues would utilize this to justify taking away her salary and stipend.
Moved to final discussion after the motion failed to be passed by all five members of council, Marquez and Burke both gave their final remarks on the matter.
“And I would just ask us to consider, especially given Councilmember Marquez’s clearly negative experience with this happening to her, is it so important for us to be able to take away each other’s salary that we risk sowing division and ending up in court over it,” asked Burke, “versus what is really the great benefit of leaving this here?”
Despite the plea, the discussion ended with the decision to override the two opposing councilmember’s recommendations.
Nonetheless, the remaining members of the council stand by the belief that the policy, including its newly adopted revisions and continuances, are what best suits the city of Cypress—which can even mean salary suspension delegated by their own colleagues.