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Report on 29 Oversight Board Meeting (02/06/12 Wednesday)

By   /   February 7, 2013  /   1 Comment

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(This report also contains commentary and opinion)

This was a very short meeting with only two agenda items. A unanimous resolution was passed concerning routine due diligence and low and moderate income housing. All OB members were present. There was a sparse public audience consisting of three people (that I observed).

Dan O’Brien was at City Hall immediately prior to the Oversight Meeting.

Mr. O’Brien asked the question to a responding officer [paraphrasing] — By what authority is John Cole on the Oversight Board. Note former city councilman/mayor was appointed to the OB in his capacity as a public official to represent the interest of the city. Since because Mr. Cole no longer represents the city, Dan O’Brien questioned his continuing seat on the OB.

Dan can best respond to what the answer was. Maybe he’ll make a comment so that the readers will know the answer he received and to whom it was directed.

During the Public Comments Agenda item, only one question was asked. It got the attention of legal counsel and Board members. The question was: [ Paraphrasing] By what authority is city counsel representing the OB? As part of the question, a comment was offered concerning the appearance of impropriety of OB legal counsel, A Patrick Munoz, legal counsel for The City of 29 Palms/ Successor Agency [okay I asked the question and raised the issue of conflicting interests].

It seemed to me that given the statutory competing interests of the OB which oversees the the City of 29 Palms/ Successor Agency, that public confidence, as well as internal integrity (Jeffry v. Pounds (1977) 136 Cal.Rptr. 373) is a concern by way of dual representation of antagonistic interests.

The purpose of the rules against representing conflicting interests is not only to prevent dishonest conduct, but also to avoid placing the honest practitioner in a position where he may be required to choose between conflicting duties or attempt to reconcile conflicting interests.

Source: Yorn v. Superior Court , supra, 90 Cal. App. 3d 669, 675; Earl Scheib, Inc. v. Superior Court (1967) 253 Cal. App. 2d 703, 706 [61 Cal.Rptr. 386].

Granted, the California Rules of Professional Conduct (a/k/a the State Bar Act) are not 100% well defined. But what is defined is that disclosure and written consent by the OB is required:


Rule 3-310 Avoiding the Representation of Adverse Interests
(C) A member shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or
(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.

Is A. Patrick Munoz in breach of Code of Conduct? That is not for me to decide. Does the OB have have on file an executed consent document accepting Munoz’s conflict of interest and  adverse interest? I do not know.

Is there at least a Quasi-conflict of interest. Of course. For the record, I am not a member of the state bar, thus I am not an attorney.

Back to the meeting. When the question was asked and a comment offered about upon what authority was city counsel the legal counsel of the OB. OB Chairman John Cole deferred the question to Mr. Munoz. Munoz advised that he is NOT legal council to the OB. He then offered legal advise concerning unwinding Redevelopment ABX1 26 and ABX1 27.

Frankly, his advise was incomprehensible and I don’t think anyone in the room understood what he was talking about but for the RGS Consultant. Munoz hasn’t perfected the ability to communicate legal matters and break it down in lay terms for this OB. That was very obvious during the entire portion of the last OB meeting.

A prudent attorney will not get caught-up in legalese and will have the ability to communicate effectively with his client. Mr. Munoz lacks this ability, or enjoys flaunting his knowledge of RDA matters. Some attorney will overwhelm clients by talking over their heads to gain some advantage. Though I’m not saying Munoz is doing this.

One OB Member said there is no provisions to pay for an attorney. I believe this was Board Member David Price.

Note here then that the City is footing the bill for the city attorney to be present and advise the OB.

Munoz may not be advising the OB of what to do, but indeed he is advising them about the processes of winding-down the RDA and alternatives available, and what they can do in terms of rejection DoF decisions and court processes. Hence, this is legal advise and the city is paying Munoz to represent the city in these matters.

Irony raised it head at it’s most glaring inconsistency. It almost seems the OB has merged with the 29 Palms City Council / Successor Agency (members on the SA are all councilmembers).

Another OB member said (GLICK)  if the time comes for a need for a lawyer, we’ll cross that bridge when it comes. Munoz had a non sequitur moment when he advised, “Think of strategy,  adding “there is $1.4 billion out there of all the cities.” Polishing off with, “I am not their attorney.”

Question: If attorney Munoz is not the OB’s attorney why is he there?
Question: Why is he being paid by the city to be there?

Answer: To look after the city’s interest, not the OB’s interest.

Conclusion: The OB needs independent representation.

Board Member Glick: “If we need one I don’t think that is a problem. We’ll get one.”

OB Board Member/ City Manager, Richard Warne —  pointed out the Due Diligence corner page needed to more prominently displayed. The OB agreed and that small change will be made.

Is there a conflict of interest City Manager Warne seated as a OB Director? I believe so. Much to to the detriment of the public and OB —  charged with implementing winding-down the old RDA and its funds.

Conflict: the city want to retain old RDA funds.

Meeting was adjourned.

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About the author

Branson Hunter

(This story was posted by Cactus Thorn contributor Branson Hunter)

"The ends do not justify the means." If you use illegal mean to accomplish a legal and even desirable result, the good result does not make the bad means you used justifiable.

1 Comment

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