Mayoral Ambition Thwarted, Chavez Hits Highland On Brown Act Violation

Highland City Councilman Jesse Chavez’s inability to obtain the full complement of votes he needed to move into the mayor’s position this week prompted him to accuse his colleagues of bias, and allege violations of California’s Ralph M. Brown Act and of the federal Civil Rights Act.
Under the microscope was the Highland City Council’s nomination and voting process to name a mayor and mayor pro tem to serve the remainder of this year and most of 2020, a process not unlike that in many California cities. That process can be an awkward one, given that the voting ultimately involves a situation in which one of the members of a governing panel is called upon to vote for himself. Generally, that awkwardness is limited to the voting itself, which follows the person about to be confirmed as mayor having been nominated by one of his or her colleagues. Only in the most rare of circumstances, does an elected official/council member self nominate. That is what occurred in Highland this week.
After the Highland City Council began its meeting with its perfunctory opening ceremonies including the invocation and the pledge of allegiance, Mayor Penny Liliburn had the council take up the meeting’s first order of business, the appointment of new council officers.
Immediately upon the nominations for mayor being opened, Chavez said, “I’ll nominate myself, and let me say why real quick: Fifty-one percent of our residents here in Highland are Latino. The median age is 34. Twenty percent of our community lives in poverty. I live in that poverty. My family lives in that poverty. So, we need someone who can really represent our city. We know the mayor has no more vote, no more pull, than the other councilmembers. It has only to do with going to events, chair the council meeting, and so, I am just asking for your honest, ethical vote for me to be mayor of the city.”
Two seconds elapsed and Councilman John Timmer responded with, “I’ll nominate Larry McCallon.”
Following a four second pause, Mayor Penny Liliburn asked, “Any more nominations?”
When no one spoke up, Liliburn said, “Hearing none, we’ll go ahead and close the floor. All those in favor of Councilmember Chavez…”
Chavez and Councilwoman Anaeli Solano each stated, “Aye.”
“I’m hearing two, correct?” Liliburn said. “So, all those in favor of Councilmember McCallon…”
Liliburn, Timmer and McCallon registered their votes with “Aye” utterances.
“I’m hearing three,” Liliburn said. “So, Congratulations, Mayor McCallon.”
Upon the council dais nameplates being changed and McCallum assuming the mayor’s gavel and position, McCallon said, “Thank you. I appreciate the confidence of the council in putting me again for mayor. I don’t take the position lightly, and I’m humbled by your support.”
With McCallon having been advanced to the mayor’s post by a margin of a single vote and upon the crucial support of his own vote, his remark of being humbled by the action was too much for Chavez to let pass. “I genuinely don’t support you,” Chavez said, “although we know we violated the Brown Act. I knew this vote was going to happen anyway, so I just wanted to give it a chance. We’ve seen that the City of Highland violates the Civil Rights Act over and over again. This is just another example of the city not moving forward. I’m just very disappointed in this city council, especially you Penny. I’m very disappointed.”
Liliburn shot back, “Jesse, I want you to know when you came to me, I told you I spoke to Larry McCallon on this issue…”
“You did not,” Chavez interrupted her.
“I did,” said Liliburn.
“I’m sorry, but you did not,” Chavez insisted. “You didn’t tell me until the day we were at the picnic and that’s when you said Larry did get the vote…”
“Absolutely,” said Liliburn.
“…and then I said I can’t talk to you any more because that’s a Brown Act violation, and you recommended me to continue to talk to Larry about this vote, so don’t throw it at me Penny. This is your mistake.”
“Jesse, you came to have… You asked me to have breakfast with you so you could patch things up with me…” Lilliburn began to respond.
“And I did,” said Chavez.
“… and at the last minute you asked me if I would support you to be mayor because you wanted to be the youngest mayor in history,” Liliburn persisted.
“I said, ‘I could potentially be the youngest mayor,’ not in history, but in the State of California, and I still want to build… I don’t want this divisiveness. The city is divided and I’m sick of it,” Chavez said. “That’s why I went up to you, and I said, ‘Penny, we need to stop this.’ I got elected, when we got elected in 2016, honest, we came to our parties…”
“I felt like Larry’s the best candidate,” Liliburn this time interrupted Chavez. “That’s why I just voted with him. Thank you.”
“Okay, well, I’m trying to talk to you about this Brown Act violation. You violated the Brown Act,” Chavez said. “Violation and it’s wrong. The only thing that the city attorney did is send out a memo, and I can read that memo, and it says nothing about that. The community needs to know that we violated the Brown Act. I’m okay to admit it because you spoke to me. I didn’t know you spoke to Larry.”
“Well, that is incorrect,” Lilliburn said.
“I’m sorry you feel that way,” Chavez said.
At that point, McCallon asserted himself, saying “Let’s move on,” after which the council took up the appointment of the mayor pro tem, whereupon McCallon nominated Liliburn. Chavez responded by nominating himself. McCallon called the question and had Liliburn’s nomination voted upon first. When only McCallon and Lilliburn indicated assent, McCallon asked if there was a third vote, which induced Timmer to enunciate his support with an “aye.” That precluded a vote on Chavez’s nomination.
“As long as it’s documented,” Chavez muttered at a low volume, which appeared to be an indication that a formal complaint about what he had asserted was a Brown Act violation would be made.
The Brown Act is California’s open public meeting law. It prohibits a quorum of a governing board such as a city council from making decisions relating to official action in private, with exceptions to permit closed door executive discussions of personnel issues including hirings, firings and employee discipline; real estate transactions, employee contract negotiations, and both pending and anticipated litigation against the city. The Brown Act requires that all matters relating to a city or government agency that are to be discussed by its governing board be agendized, with the exception of so-called emergency items, 72 hours in advance of the meeting at which those discussions and possible action is to take place. The Brown Act does not restrict less than a quorum of an agency or municipal governing board, such as two members of a five-member panel, from discussing a public issue. However, the Brown Act does prohibit “serial” discussions between board members about official action from taking place, such as when one member of a five-member panel discusses an issue with a board colleague and then one of those two then discusses the matter with a third.
The context of Chavez’s statements on Tuesday night suggested that he believes Liliburn’s discussion with him about the mayoral vote in advance of the vote taken in conjunction with Liliburn’s exchange with McCallon about the mayoral succession prior to the vote constituted a Brown Act violation.
Efforts after the meeting to obtain from Chavez clarification on several of his statements during the meeting, including his assertions of both a Brown Act violation and violation of the Civil Rights Act were unsuccessful. Repeated calls to Chavez’s number, (909) 863-8085, consistently resulted in a busy signal.
It is unclear whether Chavez’s accusation of the city’s violation of the Civil Rights Act pertains to allegations of ethnic bias or sexual orientation discrimination or both.
Chavez was elected to the city council in 2016 in what was the city’s first by-district election. The city had previously resisted shifting from the at-large elections it had held since the city’s inception as a municipal entity in 1987, to by-district balloting.
In 2001, the California Legislature enacted the California Voting Rights Act, under which a plaintiff or plaintiffs can file legal action against a governmental jurisdiction alleging polarized voting has taken place in its past elections and seek the remedy of having that jurisdiction switch from at-large elections to ones involving ward systems. The theoretical justification for having a city or governmental jurisdiction form such districts is the perceived likelihood that it will create political subdivisions in which the election of a member of an ethnic minority is more likely to take place than in an at-large election. Upon proof being presented that such polarized voting exists, the courts will then require that the governmental entity in question adopt the ward system and require that the governmental entity pay the legal fees for the attorney or attorneys representing the plaintiff[s]. The California Voter Rights Act confers upon plaintiffs a significant advantage, such that even if the challenge does not succeed, a plaintiff is not required to pay the prevailing city’s legal fees.
In San Bernardino County, many cities were perceived to have foreclosed minority rights because of the relative scarcity of elected Hispanic office holders, despite a substantial Latino population. Highland was among those cities and it was the first San Bernardino County city served with a demand that it alter the way it elects its council members. That lawsuit was filed July 18, 2014 in San Bernardino Superior Court by a Lancaster-based lawyer, R. Rex Parris, in conjunction with the Malibu-based law firm Shenkman & Hughes and the Los Angeles-based Law Office of Milton C. Grimes on behalf of Lisa Garrett, a Latino resident of Highland. In response, the city put an initiative on the November 2014 ballot, Measure T, asking if the city’s residents were in favor of a ward system. Measure T went down to defeat, with 2,862 votes or 43.01 percent in favor and 3,793, or 56.99 percent opposed. The lawsuit proceeded and the city sought to assuage the demand by proposing to allow cumulative voting, in which each voter is given one vote for each contested position and is allowed to cast any or all of those votes for any one candidate, or spread the votes among the candidates. When the matter went to trial, despite making a finding that the socio-economic-based rationale presented by the plaintiff’s attorneys to support the need for ward elections was irrelevant and that the plaintiff’s assertion that district voting was the only way to cure the alleged violation of the Voting Rights Act was false, San Bernardino Superior Court Judge David Cohn mandated that Highland adopt a ward system.
In the 2016 election, both Chavez and Solano were the first political beneficiaries of that change in Highland. The city’s two districts most heavily saturated with Latino voters were the First District and the Second District, in which respectively, Chavez and Solano ran. Chavez prevailed in a three-way race in the First District, with 649 votes or 39.99 percent, edging out his opponents Osvaldo Heredia, with 569 votes or 35.06 percent, and Raymond Hilfer, who polled 405 votes or 24.95 percent. Solano, with 895 votes or 59 percent, claimed victory over her single opponent in the city’s Second District, Tony Cifeuentes, who pulled down 422 votes or 41 percent.
In years past, Highland, which does not elect its mayor directly but instead has the city council choose from among its ranks who will hold the largely ceremonial position, has established a pattern in which it rotates its members into the mayor and mayor pro tem positions. Previously, Liliburn, McCallon and Timmer have all served terms as mayor. Though no strict or firm and fast rule applies to the mayoral/mayor pro tem rotation, tradition would seem to have dictated that after Chavez and Solano have now served three years in office, one of them, would have possibly been elevated to mayor, and the other would have been given a turn as mayor pro tem.
Chavez’s remarks, and the 3-to-2 voting result with regard to the succession, imply that he is being held back by his colleagues. That is strongly belied, however, by the consideration that he was promoted to the position of mayor pro tem in December 2017, after having been in office just one year at that point, well ahead of the timetable for promotion historically accorded council members in Highland. It was perhaps Chavez’s comportment during the time that he was in the position of mayor pro tem that prevented his advancement to mayor last year. In the December 2017-to-December 2018 timeframe while Chavez was mayor pro tem, McCallon served as mayor. That the mayor’s position was given to Liliburn in December 2018 and then rotated back to McCallon following the one-year period while Liliburn served as mayor could be interpreted as double slights of Chavez. There are simultaneously grounds for other interpretations, nonetheless.
Solano has yet to be raised to the position of mayor pro tem. Whether this supports Chavez’s contention of bias against Latinos among the council’s three non-Hispanic members is a point of interpretation or conjecture.
There is another social crosscurrent to be considered in Chavez’s failure to accede to the mayor’s post. He is one of the few openly homosexual elected officials in San Benardino County.
With his propensity for drama while asserting that he is being unfairly and unjustifiably overlooked in his ambition for promotion within the political milieu of Highland and San Bernardino County, taken together with his readiness to accuse those he must work with in this political context of criminal acts, as well as his flair for self-promotion, the 28-year-old Chavez may not fully comprehend that his self-absorbed boldness runs counter to the politesse and tact politicians must cultivate and apply to ingratiate themselves with their equally ambitious peers to achieve the promotion they seek
-Mark Gutglueck

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