Encinitas council reconfirms Prendergast, directs staff to revise violated code

ENCINITAS — The Encinitas City Council on June 8 reconfirmed last month’s appointment of Robert Prendergast to the city’s Planning Commission despite acknowledgment from elected officials the decision had violated municipal code.

Councilman Tony Kranz, Councilwoman Kellie Hinze, Councilman Joe Mosca and Mayor Catherine Blakespear voted to reconfirm Prendergast’s appointment to the commission at Wednesday’s meeting, with Councilwoman Joy Lyndes voting against.

The council also voted unanimously to direct city staff to change the ordinance it violated when first appointing Prendergast last month.

During a May 25 meeting, the council voted 4-1 to appoint Prendergast, a real estate businessman also serving as a member of the city’s Mobility and Traffic Commission, as the new Olivenhain representative on the Planning Commission.

However, according to Section D of Chapter 2.30.020 of the city’s Municipal Code, “Appointees to any city commission will not be selected from among members currently serving on any other city commission.”

Members of the council acknowledged the appointment had broken the ordinance at last week’s meeting.

“I’m unhappy that we had this oversight and didn’t make sure we were consistent with our city bylaws,” said Hinze.

“It’s unfortunate that we’ve run into this situation,” said Kranz.

While the code remains unchanged, the council instructed city staff to return with a revised version that would allow sitting commissioners to apply for vacancies on other commissions. It remains unclear when the council will vote on the revised ordinance.

Since his appointment, Prendergast resigned from his role on the traffic commission on June 2 to avoid any conflict with his new position. Additionally, city staff told the council that Prendergast has not been participating in Planning Commission meetings “out of an abundance of caution” until his re-confirmation.

The council members agreed that beyond merely revising the code to allow for Prendergast’s appointment, the move would also enable future appointments of qualified applicants serving on other commissions.

“I would like for us to be able to allow people to move from one commission to another, especially as sometimes they might have experience in their role that would make them more valuable to that commission, and also they can find a different area of expertise as things evolve,” said Blakespear.

Blakespear also expressed that commissioners should not have to resign from one commission to apply to another.

“They should be able to stay on their existing commission, but then automatically on being appointed; then the resignation should happen,” Blakespear said.

Hinze agreed, pointing out that this isn’t the first time the city has made such an appointment from another commission.

“This has been a practice of the city for a while,” Hinze said. “To be honest, asking somebody to resign prior to their application to another commission just doesn’t make sense. It’s better that they can keep their seat and then if they’re not appointed they still have a seat versus having no seat. We’re trying to make it possible that if somebody does want to change the commission they can do so without having to resign, and we’ve done so in other cases already.”

Hinze emphasized that while a regretful oversight, the council’s violation of the municipal code had not been intentional.

“I wasn’t aware that we were in violation of the code until after that meeting, and so it felt like the right thing to do was just to bring it back before the public, and give people a chance to provide comments, etc,” Hinze said.

Members of the public expressed outrage over the council’s decision. Some argued Prendergast should have been immediately dismissed from the Planning Commission, while others criticized the council for violating the municipal code in the first place.

“There are quite a few citizens who are astounded that you are retroactively changing the municipal code in order to make your appointment of Bob Prendergast legal,” said Encinitas resident Amy McCord. “You had two other qualified candidates who would not have required you to make an illegal appointment. We have a large enough pool of candidates to where you should not have to rob from any other commissions to fill positions. I do not approve of this ordinance change.”

Rachel Graves-Hill agreed and criticized Kranz and Hinze in particular for their public comments on the issue.

“The council broke the law,” Graves-Hill said. “And to pacify their constituents, Tony Kranz and Kellie Hinze admit they violated the code. Kranz says it’s unfortunate, and he would like to now change the code, you know, to match his misconduct. Not to be outdone, though, City Manager Pam Antil also broke the law last week. Municipal code 2.24.070 states that her first duty ‘shall be to enforce all laws and ordinances of the City.'”

Graves-Hill also said that she found it hard to believe that no one on the council or city staff knew about the applicable ordinance when Prendergast was initially selected.

“Let me be clear — this wasn’t a mistake,” Graves-Hill said. “Just five weeks earlier, Blakespear cited this exact Municipal Code 2.30 as rationale for firing Bruce Ehlers. We are not fooled. All of this committee and all of the council knew full well the terms of serving on a commission. How arrogant must [this council] be to think that the city codes don’t apply to them. I suggest [Prendergast] remove himself from this commission.”

Glenn Johnson, an Encinitas resident and a member of the city’s Mobility and Traffic Safety Commission, said he was concerned the council was ignoring the reason why the law regarding commissioners was created in the first place.

“I’m concerned that when members of our commission are cherry-picked to go to other commissions, it disrupts our operations, and it takes time for us to bring a new member up to speed,” Johnson said. “We’re talking about a delay of maybe three months.”

Mayoral candidates Cindy Cremona and Jeff Morris also weighed in at Wednesday’s meeting. Cremona questioned the council’s competency in handling the situation and urged Prendergast to resign to avoid tarnishing the commission’s credibility.

“The Encinitas Municipal Code is crystal clear,” Cremona said. “How did you not know about this? Something really stinks here. It goes right to your pattern of hand-picking members from your insider’s club to fill powerful positions and running roughshod over the rules to get them there.

“A dark cloud has formed over Mr. Prendergast’s appointment. I urge him to resign immediately from the planning commission. (Prendergast) should distance himself from the freewheeling council that appointed him and reapply in March.”

Morris agreed.

“We have laws in place to protect our community and citizens,” Morris said. “When government deems it is OK to break their own laws and change them after the fact, it creates a dangerous precedent. We can’t let this continue, and the only way to change this pattern is to change the people on our council.”

“Tony Kranz going against the ordinance he helped create in 2013 only makes residents lose trust in him. If he can’t follow policies, how can he expect others to? They’ve left the wrong impression on the community that ‘rules are for thee, not me,’ even when they make them. Voters will remember this and other poor decisions they made when November comes around.”

Hinze and Kranz both explained the original goal of the ordinance was to allow more community members to apply for commission vacancies. However, both council members were adamant the rule was never meant to preclude highly-qualified applicants such as Prendergast from applying to commission vacancies.

“I would like to correct the record that, in fact, the goal of this code was to allow more people from the community to serve in these voluntary commissions,” Kranz said. “To suggest that someone is dishonorable because they submitted an application based on an opportunity to serve on the Planning Commission is pretty ridiculous.

“We’re not doing anything that has not been done for last dozen years or so. We’re all about trying to allow people to serve our community get the city’s business done, and I think this is the most efficient way of doing it. So yeah, we’ll come back with language that clarifies what was meant by that ordinance.”

Carla DiMare, a civil trial attorney in San Diego, criticized the city’s handling of the code violation and questioned the legal basis for the council’s vote in favor of modifying the ordinance.

“Clearly, they weren’t supposed to do this in the first place, and they’ve acknowledged that they made a mistake,” DiMare said. “By directing staff to modify this ordinance, the city is admitting that their prior action was invalid.  The question is–have they corrected their mistake?

“I don’t know what rule or law they used to allow them to change the rule. It sounds like they danced around that and had the city attorney say, ‘Yeah, you can do it.’ What was the basis for doing this? They have to be acting within the scope of their power, so I don’t know. Do they have the authority to modify the ordinance? I would think that the city attorney should provide that information.”

The Encinitas City Attorney, Tarquin Preziosi, could not be reached to comment on this story despite multiple attempts to contact him.