Oxnard Attempts to Curtail Elected Treasurer’s Functions: Treasurer Takes Legal Steps to “Halt City Manager’s Vendetta to Strip Him of Duties”

 

 

By George Miller

This week’s Oxnard City Council meeting on May 5, agenda item M-1, is a bold attempt to strip Elected Treasurer Phil Molina of most of his duties (see agenda summary below and detail in AGENDA PACKET starting on page 157). Worded as it is, it would strip these duties from any future Treasurer, too. Molina and his attorney, Andrew H. Covner, Esq. of Norman Dowler and Assoc. in Ventura, are attempting to block that attempt and pursue further legal actions to preserve his status and continue important work. Re letter: 050120 – corr to stephen fischer re Agenda Item M.1

Since City meetings are closed to the public due to the stay at home order, you  may speak on this or any item by telephone during the meeting. Call in advance, no later than 3 pm on the day of the meeting, to get on the speaker list -805-385-7803 or email to [email protected] . Identify agenda item M-1 for May 5 Council meeting. You may also submit email comments.

Molina has described City Manager Alex Nguyen’s attempt to strip him of Duties as a “Vendetta,” not legally justified and says that harassment charges made against him are ludicrous. His attorney told me that Nguyen/City have a “very thin case.” Nguyen has attacked him on multiple fronts, with four “harassment complaints” and a challenge to the duties Molina continued from past treasurers and added those he thought had been neglected and were legally and professionally justified. Nguyen is even challenging Molina’s authority to review checks and warrants for appropriate justification and backup and to look into irregularities, something that has been traditionally done with varying degrees of competence and is an implied duty for Treasurers in general law cities.

In February, this writer and Al Velasquez spoke at a council meeting protesting the “phony harassment charges” against Phil Molina by the City Manager and that his duties, access to computer records and office had been curtailed by Nguyen. Nguyen replied that we were “wholly incorrect” and that it would be addressed in a future agenda. That did pop up on an agenda afterward, but was quickly removed. Now, we see that Nguyen may NOT now agree about the harassment charges, as the May 5 agenda doesn’t address them at all except in summary- instead the strategy has shifted and is now all about curtailing the Treasurer’s functions. We just heard today that the harassment report we sought and were denied has now been released and another newspaper magically learned about it while we did not and already has it in their possession.

The city made four different harassment charges (the number depends on who is counting) in two separate complaints against Molina. Two were found invalid (supposed work harassment – non-sexual) and two sexual harassment charges supported by an outside consultant investigation. Molina and his attorney emphatically asserted that they are absurd and “very thin.”  They described to me that the cases are very borderline and typical of over the top political correctness. Without naming names and circumstances, they involved complimenting women on their shoes and blouses in a very courteous way. He says he has done exactly the same for men. Once Molina remarked in a joking way after a late night of working that an employee should go home and cook dinner for her husband. That was taken for “sexual harassment.” Molina said at times they would be working well after 6:00 and felt his staff needed to take some time from work, and only intended to acknowledge they have a right to a private life, too.

The report also accused Molina of talking to complainants. Molina told us that since the complainants weren’t named in the complaint, he didn’t know who they were and that his attorney asked for names, but the city refused to provide any.

Molina and Covner told me that it appeared that the interviewer had asked leading questions of interviewees. Molina said he received further confirmation of that after the investigation from a departing employee/interviewee who said the interviewer made her “very uncomfortable” and seemed to want to imply that Molina had performed some kind of sexual acts. She said she was asked, did he touch you in (x, y, z) places?  She said she told the interviewer NO. 

Our repeated attempts to dialogue with Nguyen or City Attorney staff on this matter have mostly been rebuffed, with the excuse of “confidentiality.” Even questions about the City Treasurers statutory and administrative functions.

Here’s what the City Manager is attempting to do to the checks and balances of having a good Treasurer function:

M. REPORTS
1. City Attorney Department
SUBJECT: Amendment of City Treasurer Functions; Persons Authorized to Sign Financial
Instruments and Initiate Electronic Bank Transactions; Oversight of Payroll Functions; and
Adjustment of Future Benefits and Compensation of the Office of City Treasurer Beginning in
December 2020. (15/15/10)
RECOMMENDATION: That the City Council:
OXNARD CITY COUNCIL OXNARD FINANCING AUTHORITY HOUSING AUTHORITY
OXNARD COMMUNITY DEVELOPMENT COMMISSION SUCCESSOR AGENCY
May 5, 2020 PAGE 5
1. Approve the first reading by title only and waive further reading of an ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF OXNARD AMENDING AND
ADDING PROVISIONS TO THE CITY CODE TO DESIGNATE THE ASSISTANT CITY
TREASURER AS THE “COLLECTOR” OR “LICENSE COLLECTOR” FOR SPECIFIC
PERMITTING AND LICENSING FUNCTIONS; AMENDING THE CITY CODE AND
ORDINANCE NO. 2350 TO LIMIT CITY TREASURER DUTIES TO THAT POSITION’S
STATUTORY DUTIES NOT OTHERWISE ASSIGNED TO THE ASSISTANT CITY
TREASURER, AND TO CHANGE CITY TREASURER COMPENSATION AND BENEFITS
EFFECTIVE WHEN THE CITY COUNCIL DECLARES THE RESULTS OF THE CANVASS
OF THE RETURNS FOR THE NOVEMBER 2020 MUNICIPAL ELECTION; AND ADDING
SECTION 2-187 REGARDING PAYROLL FUNCTIONS BEING MANAGED BY THE
DIRECTOR OF HUMAN RESOURCES;
2. Adopt a resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OXNARD AUTHORIZING
CERTAIN PERSONS TO SIGN AND ENDORSE CHECKS AND DRAFTS AND INITIATE
AND APPROVE ELECTRONIC BANK TRANSACTIONS FOR THE CITY OF OXNARD,
ASSESSMENT DISTRICTS AND THE OXNARD COMMUNITY DEVELOPMENT
COMMISSION SUCCESSOR AGENCY; AND AMENDING THE TITLE AND EXHIBIT B OF
RESOLUTION NO. 10,820 REGARDING THE JOB SPECIFICATIONS FOR THE CITY
TREASURER; and
3. Adopt a resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OXNARD AMENDING
EXHIBIT A OF RESOLUTION NO. 15,242 AS IT RELATES TO THE SALARY RANGE FOR
THE CITY TREASURER.
Legislative Body: City Council
Contact: Stephen Fischer, (805) 385-7483

——————-

City Treasurer Statutory vs Delegated Duties

I asked Treasurer Molina to help me differentiate between his statutory and delegated/administrative duties. He sent me the material below. After I read it, I said, looks like they’re not just attempting to strip away your statutory duties, but almost everything except portfolio management, while cutting your pay by $120,000 annually. He said “yeah…..

The Oxnard City Manager has already taken action that overruled the State Constitution and Government Codes by dramatically changing, undoing and eradicating from the State law, those duties specifically ascribed to the Elected City Treasurer. By rewriting the laws he has also violated the State Constitution:

California State Constitution: Article XI SEC. 7. A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Sec. 7 added June 2, 1970, by Prop. 2. Res.Ch. 331, 1969.)

The actions taken by Alexander Nguyen, City Manager eliminates ALL MY DUTIES including all those established by State Government Code Section 41001-41007. Specifically he has re-assigned these duties to his appointed Assistant Treasurer:
1. All cash management of  keeping safe all city money;  STATUTORY DUTY GC 41001
2. He assigned his appointed staff as signor on all city checks and outgoing wires; STATUTORY DUTY GC 41003
3. He assigned to his appointed staff to be the  signor on city payroll checks; STATUTORY DUTY GC 41003
4. He has ordered that I no longer oversee cash handing; STATUTORY DUTY GC 41001&41005
6.  He has assigned to his appointed staff to perform all duties “relative to business licenses” and “tax collection”; STATUTORY DUTY GC 41005
7.  He has assigned all duties of over seeing cashiering functions; STATUTORY DUTY GC 41002
8.  He has taken away the sole authority to appoint deputies to perform elected treasurer’s duties when the elected treasurer is not available, by assigning all duties to his appointed staff person in violation of State codeSTATUTORY DUTY GC 41006.
(See Government Codes listed below). 
9. The only duty that is non statutory is the supervision of staff in that the government codes do not specifically use the words “directs, and organizes staff”, but an argument could be made that without staff none of the duties identified above could be accomplished.

CHAPTER 3. City Treasurer [41001 – 41007]  ( Chapter 3 added by Stats. 1949, Ch. 79. ) 

41001. The city treasurer shall receive and safely keep all money the treasurer receives(Amended by Stats. 2017, Ch. 77, Sec. 1. (SB 742) Effective January 1, 2018.)

41002. (a) The city treasurer shall comply with all laws governing the deposit and securing of public funds and the handling of trust funds in his or her possession.(b) If the city has issued bonds, the city treasurer shall use a system of accounting and auditing that adheres to generally accepted accounting principles.(Amended by Stats. 2017, Ch. 77, Sec. 2. (SB 742) Effective January 1, 2018.)

41003.The city treasurer shall pay out money only on warrants signed by legally designated persons.(Amended by Stats. 2017, Ch. 77, Sec. 3. (SB 742) Effective January 1, 2018.)

41004.Regularly, at least once each month, the city treasurer shall submit to the city clerk a written report and accounting of all receipts, disbursements, and fund balances. The city treasurer shall file a copy with the legislative body.(Amended by Stats. 2017, Ch. 77, Sec. 4. (SB 742) Effective January 1, 2018.)

41005.The city treasurer shall perform such duties relative to the collection of city taxes and license fees as are prescribed by ordinance.(Added by Stats. 1949, Ch. 79.)

41006.The city treasurer may appoint deputies.(Amended by Stats. 2017, Ch. 77, Sec. 5. (SB 742) Effective January 1, 2018.)

41007.The deputies shall hold office at the pleasure of the city treasurer and receive such compensation as is provided by the legislative body.(Added by Stats. 1949, Ch. 79.)


FYI:
1. Oxnard is a General Law city;
2. General law cities have appointed and elected officials
3. General law cities have elected city clerks and elected city treasurers, unless see #4
4. ONLY THE ELECTORATE HAVE THE AUTHORITY TO CHANGE AN ELECTED CITY TREASURER TO AN APPOINTED POSITION. GC 36508 & 36509.
 

36508.At any municipal election, or a special election held for that purpose, the city council may submit to the electors the question whether the elective officers, or any of them except council members, shall be appointed by the city council; provided, however, that the city council shall not submit such question to the electors more often than once in an 11-month period.

(Amended by Stats. 2010, Ch. 699, Sec. 11. (SB 894) Effective January 1, 2011.)

36509.The question shall be printed on the ballots used at the election substantially in one of the following forms:

(a) “Shall the offices of city clerk and city treasurer be appointive?”; or

(b) “Shall the office of city clerk be appointive?”; or

(c) “Shall the office of city treasurer be appointive?”

The words “yes” and “no” shall be so printed on the ballots that the voters may express their choice.

(Amended by Stats. 1957, Ch. 765.)

10. By gutting the duties of the elected city treasurer the City Manager changed those duties from elected to appointed staff duties, thus eliminating all duties assigned by State law to the Elected City Treasurer.
 
If the ‘reasons’ he is using for re-assigning duties had validity why would the City Manager allow me to retain the investment authority to handle the City’s $256,000,000 cash portfolio?

GOVERNMENT CODE – GOV

TITLE 4. GOVERNMENT OF CITIES [34000 – 45345]

  ( Title 4 added by Stats. 1949, Ch. 79. )

DIVISION 3. OFFICERS [36501 – 41805]

  ( Division 3 added by Stats. 1949, Ch. 79. )

PART 3. OTHER OFFICERS [40601 – 41805]

  ( Part 3 added by Stats. 1949, Ch. 79. )

————————————–

As you can see, the City Manager’s recommended reduction of the Treasurer’s scope/authority would result in far less of the badly needed checks and balances. Molina pointed out that a 2010 investigation yielded a  District Attorney report revealing that staff did what the City Manager wanted and no one stood up to oppose him or protested. An independent City Treasurer can be a bulwark to help prevent that and also be a backstop for unintentional errors.

Mayor Flynn has indicated that he favors the change. At least one other Council member is reputed to also, but will not return my calls.

We also note that the setup of the City Treasurer function is fatally flawed in that nearly all resources needed by the Treasurer are under the direct control of the City Manager, including budget recommendations, staff, office, phones, computer access and support functions. Under normal circumstances, that wouldn’t be a problem, but with a openly hostile City Manager, it’s a whole different ball game.

We caution Council members to not go along with this blatant power grab which would be detrimental to the city and  probably illegal in part. For example, Molina notes that by state law only the Treasurer can appoint Deputy Treasurers, something this resolution attempts to totally bypass by assigning many of his duties to the existing Assistant Treasurer.

We have a much more detailed article we are holding up for now to see what happens at the May 5 meeting. Note  May 5: We finally received a redacted report today. More on that and the May 5  meeting in the near future.

Editor’s note: This is an opinion article.


George Miller is Publisher/Co-Founder of CitizensJournal.us and a “retired” operations management consultant residing in Oxnard.


Get Citizensjournal.us Headlines free  
SUBSCRIPTION. Keep us publishing – DONATE

One Response to Oxnard Attempts to Curtail Elected Treasurer’s Functions: Treasurer Takes Legal Steps to “Halt City Manager’s Vendetta to Strip Him of Duties”

  1. Tom May 4, 2020 at 9:21 pm

    The agenda for tomorrows meeting has been amended. The amendment date was included for the three meetings I checked that had been amended. Why was the amendment date not included for tomorrow’s meeting?

    AMENDED AGENDA
    (Items C-3 and H-2 added, Item H-1 removed, Item N-4 revised – 3/13/20)
    OXNARD CITY COUNCIL
    March 17, 2020

    AMENDED AGENDA
    (Items F-1, K-4, L, M-1 and N-1 added – 1/17/20)
    OXNARD CITY COUNCIL
    January 21, 2020

    AMENDED AGENDA
    (Items A2, A3, K-4 and K-5 added – 12/11/19)
    OXNARD CITY COUNCIL
    December 17, 2019

    AMENDED AGENDA
    (Item L-4 revised; Item M-2 updated with new attachment)
    OXNARD CITY COUNCIL
    May 5, 2020

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *