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Winholtz files police complaint after losing council vote

October 31, 2010

Betty Winholtz

Morro Bay City Councilmember and mayoral candidate Betty Winholtz took the unusual step Friday of filing a formal complaint with the city police chief against three fellow councilmembers following a controversial council vote.

Observers say the incident stems from last Monday’s city council meeting. Winholtz asked her fellow councilmembers to schedule a joint meeting with the Planning Commission on November 15th. The vote was 3 to 2 against scheduling the meeting, with Winholtz and Smukler in the minority.

Opponents Peters, Grantham, and Borchard argued that it was best to wait because three members of the Morro Bay City Council and two planning commissioners were about to be replaced.

At issue is how many times the Morro Bay Planning Commission and the City Council need to meet jointly during the year. Winholtz was pushing for the additional November meeting because she believed it is required by municipal code.

On Friday, Winholtz sent an email to both Morro Bay Police Chief Tim Olivas and City Attorney Rob Schultz.

“This is a formal complaint against certain members of the City Council of Morro Bay for violating the Morro Bay Municipal Code regarding joint meetings between the City Council and Planning Commission. This violation occurred October 22, 2010, during the regular City Council Meeting held at the Veterans Hall. At the close of discussion on agenda item D-4, during which council members and mayor acknowledged knowing the relevant ordinance, a vote was taken to violate the code, and the motion passed. In addition, City Council has caused the city’s Planning Commission to violate their obligation.

“I turn to you as a last resort having not faced so blatant a violation of the municipal code by this body.”

Schultz responded to Winholtz on Friday, arguing that no violation of municipal code had occurred and that the city manager, not the council, was responsible for these issues.

“As I have repeatedly stated to you, if you do not like an ordinance, then change it instead of  trying to interpret it or manipulate it to serve your desired result,” Schultz wrote in a strongly-worded email.

“In this case, if you want a specific requirement that City Council must meet twice a year with the Planning Commission, then it should be inserted into the duties and responsibilities of the City Council.”

Grantham and three current and former council members have publicly asked for Winholtz to resign her place on the city council for allegedly attempting to use the threat of criminal sanctions to force her “desires” on the council majority.

The back-and-forth comes against the high drama of Tuesday’s mayoral election which pits Winholtz against former Morro Bay mayor Bill Yates. Winholtz finished first in the June primary field of four candidates.

Observers describe the Yates-Winholtz race as extremely close.


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Am I missing something here? Doesn’t this say that they voted to postpone the meeting until after the elections? That would seem to make sense and the reaction by this individual does not seem balanced nor someone interested in representation of the interests of the people, but rather her own interests. It doesn’t seem like a vote to postpone is the same as a vote not to make it happen.


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There is no definition of “annually’ in the MBMC.


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Gee, did you not notice this sentence in municipal code section 2.28.120: “The city clerk shall in January of each year bring forth an agenda item to the city council to schedule the two joint meetings”?


Gollee, do you think that might mean that in terms of this part of the code, the year starts in January? Uh, yeah……. Most people understand that when the year begins in January, it is calendar year, not fiscal. You are sounding more desperate all the time.


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MBCA


Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used by oppressive governments.


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When you commit to the oath to serve on a City Council you commit to following the law and the

Municipal Code. Sorry, but you are wrong and Betty Winholtz is correct on this.

Read the Municipal Code, it is very clearly stated in black and white.


The three City Council Members violated the Municipal Code. I believe this should be investigated, and

action should be taken against the three council members that violated the law.


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Yes, you sure are missing something. You are missing a whole lot. They said they wanted to wait until the new council was in place. That would be 2011. Therefore, the code was violated by the council majority.


READ the information in the comments section below. There is a committee to deal with code enforcement issues since we have no code enforcement officer. The leaders of the committee are the police chief and the city attorney, who are the ones Ms. Winholtz addressed her concern to. She followed procedure in reporting to the code enforcement committee heads what she and many others believe is a blatant and deliberate violation of the municipal code.


This is hardly the shocking event that the Yates people have tried to make of it and should not have caused such a brouhaha, but the city attorney took it upon himself to issue, from his office, at taxpayer expense, a press release to nine different news agencies. As if by magic, the Yates people were all over it, including adding the issue to their hilarious Web site full of nonsense and false statements about Winholtz, Smith, and Kennedy.


Personally, I think the motive of the council majority in voting to postpone the joint meeting with the planning commission may well have been to avoid having more public attentionfocused on the very important fact that the planning commissioners found major, major problems in the draft EIR for the wastewater treatment plant project and the fact that it will very likely have to be redone at huge cost to taxpayers. That foulup has aready cost taxpayers plenty.


Meanwhile, Council members have a duty to uphold the law, and Betty takes that seriously. Perhaps this seems strange to some people because they are so accustomed to watching the behavior of community officials who appear to be seriously “challenged” when it comes to ethics issues.


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Sooooo, is there a definition of Year anywhere in the code. Is it 12 months…is it calendar….is it fiscal. I could be that the requirement is for a meeting with the planning commission twice every 12 months. Betty Booped on this one. Vote for me or you’re gonna be arrested.


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There is no definition of “annually” in the code. The last meeting occurred in March, 2010.


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Municipal code section 2.28.120 includes this sentence: “The city clerk shall in January of each year bring forth an agenda item to the city council to schedule the two joint meetings”?


Most people understand that when the year begins in January, it is calendar year, not fiscal. That means that, since there has been only one joint planning commission/city council meeting since January 1, 2010, unless there is another one before January 2, 2011, the council is in violation of the municipal code.


They voted to postpone the meeting until 2011. Thus, they voted to violate the code. Had they done so in ignorance of the code’s existence, the only fault would lie with the city attorney, for failing to inform them of it. However, their discussion showed they were well aware of the code and just chose not to follow it.


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This sounds like barto/yates the cartoon two characters, vote for me or you’re gonna be arrested……


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Lots of discussion, but still do not see any proof of which law was violated as it applies to the city council not the planning commission.

A simple high school english level education will help to read and understand the difference between laws, rules, and codes.

Is there a law, rule, or code that says that the city council cannot decide not to hear from the planning commission.

To me having a lame duck council and planning commission pass on something as important as some of you think is before the commission was a wise decision unless you feel that the newly elected officials will rule in a way that you do not like.

The city council could have heard the planning commission and than voted to take no action, with the same results.

Game over! Time to let the voters pick a new team


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Your arguments are absurd. You sound like Peters who, during the discussion about postponing the meeting until next year, said that one has to use “common sense” in deciding whether to follow the law. In other words, who cares if there is a law? The Council is above all that, and can use what they consider “common sense” to ignore any laws they find inconvenient.


By the way, be assured that the “game” is only beginning when it comes to dealing with the Council’s bad behavior and the city attorney’s failure to advise them to adhere to the municipal code.


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By the way, be assured that the “game” is only beginning when it comes to dealing with the

Council’s bad behavior and the city attorney’s failure to advise them to adhere to the municipal

code.


YES YOU GOT IT RIGHT!


IT IS THE CIYT ATTORNEY’S FAILURE TO ADVISE THEM TO ADHERE TO THE MUNICIPAL

CODE!


ON THE OTHER HAND DOES HE EVEN KNOW THE MUNICIPAL CODE???


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There is no other way to interpret all this other than as a final and rather desperate attempt to scuttle the election of Betty Winholtz as Mayor.


My take on the Congalton Show:


Poor Carla! She’s intimidated. Shades of Pearl White. How often do you hear of a former firefighter with a case of the vapors?


Rick wants an apology. After listening to what he had to say, it’s probably more fitting for him to offer an apology, not only to Betty – but to the people of the city for his unwillingness to properly represent them.


And then, bringing up the rear, we’re treated to Our Lady of The Dahlias. She’d have

called in sooner, Dave – but her talking points were late in arriving.


Hey, it’s okay. Y’all just need a better drama coach, is all. :-)


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Brook says: “There is no other way to interpret all this other than as a final and rather desperate attempt to scuttle the election of Betty Winholtz as Mayor.”


I agree.


But the question is WHY? Why would Betty attempt such a cockamamie copper concoction on the eve of the election? Why would she harpoon her efforts so? Why would she scuttle the election of Betty Winholtz as mayor?


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Chill out…..

Betty knows the municipal code and the law.


Don’t hold your breath, you might explode!!!

Betty will prevail, don’t worry.


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I want to publicly thank Brooke and mbactivist1 for your diligent efforts to discuss the issue – and keep focused on the issue, rather than succumb to the orchestrated efforts to vilify Betty Winholtz for doing her job and doing it well. Why is it that there is such an investment on the part of some to support, defend, and participate in having the law apply to everyone else, but not themselves? What is the problem with having integrity and ethics?


If we are going to play the game, why not play the game with the same rules for everyone. Do you think you cannot win unless you cheat, lie, defame, or steal? That’s what I think is going on and I find it to be very weak. People who do this are simply weak people.


This way of living has been increasing across the board and NO office in SLO county or any of its cities is immune, though I have never heard a complaint about the integrity of the SLO Planning Department _ I have no affiliation or connection, just reporting.


Soon, we’ll be on to the next drama of public officials abusing their power. Probation. Sheriff. City council. Staff sleeping with opposition as a means of “negotiation” and on and on and on.


Let’s put a stop to it. Stop it in yourself and vote Cortez.


Want to vote this negative? Don’t let on how weak you are.


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Thank you, paul anthony.


My take away from the day is that the invectives against Betty Winholtz are simply

an accurate barometer of how afraid these people are of her. Kinda how mice don’t

like it when you turn the light on.


Have a lovely evening.


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You got it right Paul, and of course I voted for CORTEZ another winner!


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Well now, isn’t this interesting? I just received a copy of a press release that the office of the Morro Bay City Attorney (appearing on this site, “MBCA”) sent out today to this news source, along with KVEC, KTAS, KCOY, DEYT, KSBY, the New Times, the SLO Coast Journal, the Tribune, the Cambrian, and the Bay News. The document was an attachment to an email sent to the above, among others, by “Dana Swanson, Administrative Assistant, City Attorney’s Office”.


How interesting! And here we are just one day before the election, with one of the candidates for mayor, namely Betty Winholtz, a person that the City Attorney has butted heads with in the past. Aaaayyy, people, if you don’t get what’s behind this and vote for Betty, Jack, and D’Onna, this kind of nonsense is going to continue and we never will have a decent city government in Morro Bay.


Regarding the content of the “press release”, despite the fact that


1. The General Provisions of the Municipal Code clearly state that “NO PERSON SHALL VIOLATE ANY PROVISION, OR FAIL TO COMPLY WITH ANY OF THE REQUIREMENTS OF THIS CODE.”,


and


2. duties and responsibilities of the Council are sprinkled throughout the municipal code,


and


3. the municipal code trumps any “policies and procedures manual”,


…. the press release says, “On October 29, 2010, Council member Betty Winholtz filed with the City a formal complaint against certain members of the City Council of Morro Bay for violating Morro Bay Municipal Code 2.28.120 which states that it is the Planning Commission’s duties and responsibilities to meet with the city council twice annually to discuss proposed policies, programs, goals and objectives, budgeting, future planning, or any other planning matter requiring joint deliberation.

A City Council can legally waive its procedural rules and regulations as it is within their power to abolish, modify, or waive their own rules of procedure. In this case, the Council, after proper notice to the public, deliberated on postponing the November 15, 2010 Joint Planning Commission/City Council meeting until new council members were elected and new planning commissioners were chosen. A majority of the Council agreed to postpone the meeting.

Historically, the Planning Commission and City Council have not consistently met twice annually. In fact, at the November 13, 2006 meeting, under the exact same circumstances, the City Council postponed a joint meeting until new council members were sworn in and new planning commissioners were chosen. No one at that time filed a formal complaint.

Municipal Code section 2.28.120 lists the “Duties and responsibilities” of the Planning Commission not the duties and responsibilities of the City Council. City Council duties and responsibilities are found under MBMC 2.06 and within the City Council Policies and Procedures Manual.”


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You certainly have your facts right!


Thank you for all the good information.


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The new council will be sworn in on 12/8. That Council will have the opportunity to schedule a joint meeting before the end of the year.


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Nice deflection. Don’t think it’s a sure way out – but you’re putting in a mighty effort to

earn your bucks today. I’ll give you that.


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Morro Bay councilwoman Borchard will address this issue Monday at 3:35 on KVEC 920 AM.


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Municipal Code section 2.28120 lists the “Duties and Responsibilities” of the Planning Commission not the duties and responsibilities of the City Council.


City Council duties and responsibilities are found under MBMC 2.06 and within the City Council Policies and Procedures Manual.


Therefore, even if there was a violation of MBMC 2.28.120, the Code Enforcement action would have to be filed against the Planning Commission and not the City Council.


However, the term annually is not defined. Is it a calendar year? Is it fiscal year? Is “annually” the term of Planning Commission members which is the end of January? Is it from the last joint meeting? The last joint meeting was March 15. 2010.


Under any definition, the annual period has not yet expired so no action can be filed at this time.


Historically, the Planning Commission and City Council have not consistently met twice annually under any definition. In fact, at the November 13, 2006 meeting, under the exact same circumstances, the City Council voted to postpone a joint meeting until new council members were sworn in and new planning commissioners were chosen. No one at that time asked for criminal action to be filed.


Finally, a City Council can legally waive its procedural rules and regulations as it has been uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure. In this case, the Council, after proper notice to the public, deliberated on postponing the November 15, 2010 Joint meeting until new council members were elected and new planning commissioners were chosen.


A majority of the Council agreed to postpone the meeting.


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MBAC


Love the built-in ambiguity of it all. Makes for great leeway when ethics might get in the way. Just sayin’


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Not really. Taking any for the defintions the Code has not been broken until Dec. 31.


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The action taken is what “broke the code”.


Grantham, Peters and Borchard all voted not to have the 2nd meeting. Ms. Winholtz clearly stated that the 2nd meeting is a part of the code and that by not having that meeting the Council would be violating the code.


All 3 dissenting votes were accompanied

by comments that clearly indicated they didn’t give a tinker’s damn about knowingly violating said code.


Sorry, your attempted end runs here are not very impressive..


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You seem quite desperate to give the council and the city attorney an “out” but it does not appear that they have one.


Maybe they could waive some of their “procedural rules and regulations” if their own code didn’t expressly forbid it. Morro Bay’s does. Once again, I give you this from the General Provisions of the Code. Note that the first sentence is, “NO PERSON SHALL VIOLATE ANY PROVISION, OR FAIL TO COMPLY WITH ANY OF THE REQUIREMENTS OF THIS CODE.” Maybe if that were not there, the Council could get away with picking and choosing what laws it wants to follow, but this is pretty clear. The above code does not list any exemptions , “procedural rules”, or otherwise. Here is the full text:


1.16.010 – Violation deemed misdemeanor/infraction.


No person shall violate any provision, or fail to comply with any of the requirements of this code. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this code, any ordinance of the city or any code adopted by reference in this code shall be guilty, unless otherwise specified, of a misdemeanor/infraction. Any person convicted of a misdemeanor under the provisions of this code, shall be punishable by a fine of not more than one thousand dollars, or by imprisonment in the city or county jail for a period of not exceeding six months, or by both such fine and imprisonment. Each person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this code is committed, continued or permitted by such person and shall be punishable accordingly.


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MBMC 1.04.020 J specifically excludes the City of Morro Bay from the definition of a “Person”.


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So, does it exclude Borchard, Grantham and/or Peters from the definition of a “Person” too? I believe they are the ones the complaint filed against.


Here is the first line from the complaint: “This is a formal complaint against certain members of the City Council of Morro Bay for violating the Morro Bay Municipal Code regarding joint meetings between the City Council and Planning Commission.” Unless you do not consider the three named above as “persons”, your argument makes no sense whatsoever.


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