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  City Attorney in Power Grab
March 1, 2006

City Attorney John Eastman finally went too far last night. During a discussion of a draft ordinance I placed on the agenda to bring Richmond’s Mining and Reclamation Ordinance in line with state law, Eastman stated that the City Council could not vote on the ordinance because it had been authored by me instead of him. Never mind that it was actually a model ordinance prepared by the State Mining and Geology Board. He quoted Article 4, Section 3 of the Charter, which states: “The Attorney shall act as the legal adviser of the Council and any officer of the City who requests his advice. He shall prepare all ordinances and contracts whenever required so to do by the Council,” and interpreted it to intend that all ordinances must be written exclusively by the City Attorney.


This interpretation is inconsistent with practice as I have known it for at least the last decade. City Council members, as well as other staff members, have prepared ordinances forever in Richmond. The way I read it, the Charter requires the city attorney to prepare ordinances whenever required so to do by the Council. The Charter text appears to leave it to the discretion of the City Council to refer ordinances to the city attorney or not. I would agree that the city attorney should at least review proposed ordinance language, but there is no reason that he must be the author of everything.


Similarly, the Charter requires the city attorney to do so only when requested (“The Attorney shall act as the legal adviser of the Council and any officer of the City who requests his advice.)


Why is this so important? Because the City Attorney’s office is so slow and so backlogged that it cannot get around to taking care of critical business. I first raised the quarry issue, which is one of public safety, back in October of 2005. No substantive steps have been taken by the city attorney or any other City staff member since then to address the situation, including updating the City’s obsolete ordinance that has been inconsistent with State law for over a decade and which the City has been informed about since 1998.


If that weren’t enough, Eastman threw out CEQA as another reason to stall the ordinance. He said the ordinance must undergo CEQA review before it can be voted on. Obviously, he didn’t read the ordinance, which has several passages that relate to the application of CEQA for any specific projects seeking permits under its provisions. In fact, the executive director of the State Mining and Geology Board Ordinance informed me that “The ordinance IS NOT a project, thus, it DOES NOT have to undergo a CEQA review.  You were correct in your assessment, and the city attorney was not.”


I thought I was doing the citizens of Richmond a service by taking the initiative to work with the State Mining and Geology Board to get a legal and updated ordinance back into our municipal code. Instead, all I got was grief from the city attorney and silence from most of my colleagues. I got a little support from Rogers on the city attorney as exclusive author of ordinances issue, but he didn’t read the ordinance either because he asked how we were going to pay its implementation. The ordinance provides for that as follows:


12.46.80 Fees

The City shall establish such fees as it deems necessary to cover the reasonable costs incurred in implementing this Chapter and the State regulations, including but not limited to, processing of applications, annual reports, inspections, monitoring, enforcement and compliance. Such fees shall be paid by the operator, as required by the City, at the time of filing of the Site Approval application, Reclamation Plan application, and at such other times as are determined by the City to be appropriate in order to ensure that all reasonable costs of implementing this Chapter are borne by the mining operator.


For more background, see Unstable Richmond Quarries are Threat to Public Safety and Illegal Quarry Operations Continue Unabated, February 22, 2006.


This quarry problem is not the only backlog in the City Attorney’s Office. The city attorney has asserted that we need at least a dozen new ordinances to effectively operate our code enforcement and abatement functions, but has brought nothing forward for City Council action. Neither has he brought forward a sewer lateral inspection and maintenance ordinance, yet we are paying out thousands of dollars daily for sewer spills and overflows.


The bottom line is that I have had it with this city attorney for a lot of reasons beyond those described herein. I made a big mistake in voting to hire him, and I am now calling for his resignation before he does some real damage to our city. I hate to say it, but Everett Jenkins never looked so good.