Tuesday, February 17, 2015
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Mayor’s Refusal to Sign Contract Not ‘Absence,’ C.A. Rules
Panel Upholds Ruling Invalidating Controversial Montebello Hauling Contract
By a MetNews Staff Writer
A mayor’s purported refusal to sign a contract duly approved by the city council does not authorize the mayor pro tem to sign the contract in the mayor’s “absence” under Government Code §40601, the Court of Appeal for this district ruled Friday.
Div. Three affirmed Los Angeles Superior Court Judge James Chalfant’s ruling invalidating a contract between Arakelian Enterprises, Inc., which does business as Athens Services, to become Montebello’s exclusive provider of commercial and industrial sanitation services.
In 2008, the council voted 3-2 to award the 15-year, $150 million contract to Athens by a 3-2 vote. The contract caused a political firestorm in the city, as all three of the council members who voted for it were eventually ousted by the voters, and the newly constituted council voted to sue its former members, and the former city administrator, for conflict of interest based on the alleged trading of their votes for campaign donations
The Court of Appeal ruled last year that the lawsuit was not barred by the anti-SLAPP law.
In the separate action to invalidate the contract, Chalfant ruled that the contract was invalid without the signature of Mayor William Molinari, who voted against it and refused to sign it. The city attorney, who advised the pro-Athens mayor pro tem, Rosemarie Vasquez, that she could sign the pact if the mayor didn’t, was wrong, Chalfant said.
The trial jurist also ruled that even if the contract was properly executed, it imposed a new tax that required voter approval under Proposition 218. Justice Patti Kitching, writing Friday for the Court of Appeal, said in a footnote that the lack of signature by the mayor rendered that issue moot.
General Law City
The justice explained that as a general law city, Montebello must execute its contracts in the manner prescribed by the Government Code, including the mayoral signature requirement. The evidence before Chalfant, she noted, showed that the mayor was present at City Hall the day the mayor pro tem signed the hauling contract, which was apparently taken from the mayor’s mailbox.
While §40601 does not define “absence,” she said, the words “absence” and “absent,” in reference to a mayor, are used elsewhere in the code. It is clear from the usages, she said, that the terms refer to a lack of physical presence, rather than an unwillingness to perform a function while present.
“Our conclusion is bolstered by the lack of any statutory authorization for the actions taken by the City Attorney and Mayor Pro Tempore in this case,” the jurist wrote. “While physical absence is essentially a binary concept—the mayor is either physically present or he is absent, absence in the dereliction of a ministerial duty sense advanced by Athens is more amorphous—requiring at a minimum some determination that the mayor has a ministerial duty he refuses to perform. Here, that determination was initially made by the City Attorney, who recommended that the Mayor be ‘deemed absent’ for purposes of signing the Contract. The determination then was apparently ratified by the Mayor Pro Tempore, who, on the City Attorney’s advice, purportedly signed the Contract. However, nothing in the Government Code authorized the City Attorney or Mayor Pro Tempore to unilaterally deem the Mayor absent based on their own determination that he had failed to perform a ministerial duty.”
The appropriate procedure, she said, would have been to seek a writ of mandate directing the mayor to sign the contract.
No Attorney Fees
Although the citizen who brought the action succeeded in having the contract invalidated, the appellate panel ruled that Chalfant did not abuse his discretion in denying attorney fees under the private attorney general statute, based on his finding that the plaintiff took on no financial burden by litigating because his fees were paid by competitors of Athens.
Attorneys on appeal were Stephen M. Miles and Frank W. Battaile for the plaintiff, Mike Torres; John G. McClendon of Leibold McClendon & Mann, P.C. for the city; and Paul T. Gough, Colleen C. McAndrews, and Thomas W. Hiltachk of Bell, McAndrews & Hiltachk, along with Gibson, Dunn & Cutcher’s Robert E. Palmer, Lauren D. Friedman, Courtney A. Dreibelbis and Thomas Manakides for Athens.
The case is Torres v. City of Montebello (Arakelian Enterprises, Inc.), B246615.
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