Councilwoman Mungo Claims City Att'y Parkin Told Her She Can't Comment On Proposed Land Use Changes Without Losing Her Ability To Vote On It...But That's Not What Ass't City Att'y Mais Told Us Nearly Three Weeks Earlier '

' Councilwoman Mungo Claims City Att'y Parkin Told Her She Can't Comment On Proposed Land Use Changes Without Losing Her Ability To Vote On It...But That's Not What Ass't City Att'y Mais Told Us Nearly Three Weeks Earlier '

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Councilwoman Mungo Claims City Att'y Parkin Told Her She Can't Comment On Proposed Land Use Changes Without Losing Her Ability To Vote On It...But That's Not What Ass't City Att'y Mais Told Us Nearly Three Weeks Earlier

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(Sept. 17, 2017, 7:25 p.m.) -- At a Sept. 16 community meeting organized by Density Watch, Councilwoman Stacy Mungo declined to answer a resident's question asking what she thinks of changes proposed by city staff to LB's land uses and accompanying density increase maps, claiming that City Attorney Charles Parkin told her she couldn't do so without losing her vote when the issue comes to the City Council.

However nearly three weeks earlier, Assistant City Attorney Mike Mais told LBREPORT.com the opposite (email response below).

Mungo [Sept. 16 Density Watch event]: ...I'll answer any questions. I'm here because one of your neighbors said that the inforamtion was not accurate and they asked me to be here, and she's here.
Resident: As a resident of district 5, how do you feel aboout [the proposed land use changes]?
Mungo: .I'm frustrated that there was so much inaccurate information that I heard today...
...I don't think any Councilmember has made a "for" or "against" on the land use plan, because when I talked to the City Attorney, Charlie Parkin said, and I'm going to read it, and he's an attorney and I'm not, that Woody's vs. City of Newport Beach, in times where we are adjudicatory, that if we say we are for or against something in advance before there's testimony on both sides, that we can be recused from voting on it. And so I would never be political to come out and tell you how I feel that make you feel good, which would then make it so I don't get to vote on your behalf because you voted for me to be there at the dais and take vote for you. [applause]

[Documenting audio for the above is here.]

However on Aug. 29, Assistant City Attorney Mike Mais responded to an inquiry from LBREPORT.com, asking for purposes of our reporting, to what extent LB Council members are allowed to state, or not state, their positions (support, oppose, inclined to support or oppose) on the proposed Land Use Element including its maps regarding proposed increased density/height increases at various locations prior to it reaching the Council. Assistant City Attorney Mais' email reply follows below:

[Ass't City Att'y Mais Aug. 29 email] The decision regarding the Land Use Element (LUE) is a "legislative" decision as opposed to a "quasi-adjudicative" decision, so Councilmembers are not legally constrained in their pre-hearing public comments.
A quasi-adjudicative decision typically involves a situation where the Council is asked to weigh certain facts and evidence and make findings and determinations after hearing the "evidence." Quasi-adjudicative decisions involve items such as conditional use permits or hearings regarding the granting or revocation of other types of permits (e.g., business licenses). Existing case law cautions that Councilmembers should not make comments or take concrete positons in quasi-adjudicative situations because they are essentially pre-judging a case or situation where they are supposed to take all the evidence, and sometimes evaluate credibility, in or at the hearing itself.
Councilmembers are free to take positions in advance of a "legislative" item that might appear on an agenda. These could include whether or not to adopt a particular ordinance, make zoning text amendments, budgetary matters, and most other "routine matters that typically appear on a Council agenda. It is only when Council is acting more as a "judge and jury" that they cannot make advance pronouncements regarding the Councilpersons opinion on the item. This could constitute a pre-judgment which is not generally permitted...

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Within hours of Councilwoman Mungo making her statement, LBREPORT.com emailed her, cc'd to City Attorney Parkin, providing the full text of Assistant City Attorney Mais' statement and inviting Councilwoman Mungo to provide us with a brief statement acknowledging that she appears to have inaccurately attributed a view to City Attorney Parkin that isn't accurate in these circumstances and on that basis appears to be free to answer the question asked by resident...and we asked her to answer the resident's question so we could publish her views here.

We received digital confirmation that our emails to Mr. Parkin and Councilwoman Mungo were read at 10:38 p.m. and 11:10 p.m. respectively on Sept. 16.

As of 7:00 p.m. Sept. 17, LBREPORT.com has received no reply from Councilwoman Mungo [or any contrary indication to what Assistant City Attorney Mais told us from City Attorney Parkin.]

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