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Atherton: Ed Flint named 'acting interim city manager'

Original post made on Nov 17, 2011

==B Update:== Atherton's Interim Police Chief Ed Flint has added "acting interim city manager" to his job title after John Danielson, the interim city manager, became seriously ill and unable to return to Atherton while on a trip out of California this week.

Read the full story here Web Link posted Thursday, November 17, 2011, 9:15 AM

Comments (20)

Posted by Redfield Flash, a resident of another community
on Nov 17, 2011 at 3:46 pm

Where I'm from this is called a "Brother in Law" deal. On the face of it I can see many conflicts regarding having one person conducting both jobs. For example, if the Police Chief has a lapse in propriety, will the City Manager be required to fire himself? Or, if the City Manager finds himself speeding to work one morning, will the Police Chief slap himself with a hefty fine, just to make an example of himself. Sounds silly doesn't it? So does one person doing both jobs.......


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 17, 2011 at 4:17 pm

When a management team suffers an unexpected loss to injury or illness you pick the next best qualified person to step into the gap. Flint is a great and appropriate choice.


Posted by R.Gordon, a resident of another community
on Nov 18, 2011 at 6:46 am

If you say so, PC.......does Menlo Voter now follow with an email confirming what you say? I will check.In a few days.I will be with Hillary.


Posted by Changes, a resident of Atherton: other
on Nov 18, 2011 at 6:21 pm

In the last year at least the Police Chief, Public Works Director, Building Official, Finance Director, Asst City Manager, Park Staff, and City Manager have retired or left Atherton. Are there more?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 18, 2011 at 6:28 pm

"In the last year at least the Police Chief, Public Works Director, Building Official, Finance Director, Asst City Manager, Park Staff, and City Manager have retired or left Atherton".


The Town Council decided that change was needed and this list quite properly fills the bill.


Posted by The List, a resident of Atherton: West Atherton
on Nov 19, 2011 at 12:30 am

Remember-There is also a new City attorney.
However:What about the City Planner,she's still here. You know-the one who negotiated the new 90% increase in garbage rates for Atherton? The sole survivor-along with APD, everyone else has come and gone.


Posted by JT, a resident of another community
on Nov 19, 2011 at 1:42 am

It's interesting what they're not saying about Danielson. Deputy City Clerk Theresa DellaSanta won't say where Danielson was when he was stricken or where he is today. HIPPA doesn't bar her from giving the city or state Danielson is in.

Now if Danielson had had a heart attack, I don't think anybody would have a problem saying that. If he had been in a car accident, it certainly wouldn't be a confidential matter. So why so secret?

What kind of disease or personal situation would require such secrecy? And isn't it interesting that he can't contact people at City Hall to try to run things over the phone. What kind of facility would limit his access to the outside world?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 19, 2011 at 9:26 am

There is no need for rumors, speculation or conspiracy theories - just look at the facts.

How fortunate we are to have an Interim Town Manager who knows that being able to communicate from afar is no substitute for hands on management and has therefore asked that someone else take on his responsibilities while he is otherwise indisposed.

And how fortunate we are that the Town Council has another individual in whom it has confidence that is both willing and able to take on these duties.


Posted by sidekick, a resident of Atherton: Lloyden Park
on Nov 21, 2011 at 8:10 am

Peter's cheerleading doesn't make me very comfortable. I see an administration falling apart.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 21, 2011 at 9:13 am

Then do your own homework. I have actually met Ed Flint and was quite impressed. And the five Town Council members who voted to make him the temporary Town Manager know him much better than I do.

How can you 'see' anything when you don't even look.


Posted by Kimberly Sweidy, a resident of Atherton: West of Alameda
on Nov 22, 2011 at 2:29 pm

Dear Elected Officials and Government Employees,

Last night, based on my published comments [below], I received an anonymous telephone call from a concerned individual.  The individual indicated the following:

1) The individual would not give the individual's identity, for fear of retaliation if my source became known.
2) The individual said that Ed Flint, the Chief of Police for the Town of Atherton, resigned from the Santa Rosa police department after four lawsuits were brought, stemming from situations arising in that Police Department.
3) One of the lawsuits was based on sexual orientation discrimination (brought by a homosexual male).  Three of the lawsuits were based on gender discrimination (brought by females).
4) Mr. Flint was refused other employment when a prospective employer performed due diligence and uncovered facts about Mr. Flint's employment with Santa Rosa.
5) The Town of Atherton did not perform due diligence prior to hiring Mr. Flint.
6) Currently, Mr. Flint's behavior at the Town of Atherton is a repeat of his past behavior in Santa Rosa.
7) According to the Attorney General, it is illegal for Mr. Flint to simultaneously hold the position of Chief of Police and Interim City Manager.

I have no personal information about Mr. Flint.  In fact, until receiving notice that he was about to be appointed Interim City Manager, I didn't even know his name.  However, the above allegations are very serious.  And I do intend to pursue this matter in the exact same fashion that I pursued the Michael Wasmann matter.  The Town of Atherton deserves competent, ethical public officials and employees.  I will get to the bottom of this situation and uncover the truth, whatever that may be.  A cursory web search does yield information that supports the above allegations, so clearly there is some factual basis for those allegations.

Web Link

Web Link

Sincerely,

Kimberly R. Sweidy


Posted by Kimberly Sweidy, a resident of Atherton: West of Alameda
on Nov 22, 2011 at 2:30 pm

Dear Elected Officials and Government Employees of the Town of Atherton,

This email is in reference to your recent appointment of Interim Police Chief Ed Flint to the position of Acting Interim City Manager.

Web Link

I refer you to the following publication by the California Attorney General's Office:

Web Link

In particular, direct your attention to section XII, The Prohibition Against Holding Incompatible Offices.

Excerpted from that publication at Page 98:

"One of the most basic incompatibilities arises when a single person holds two offices where one office has supervisory authority over the other. (See § 1099, subd. (a)(1).) For example, this office has concluded that a person could not be both the city manager and the police chief because the city manager had budgetary and supervisory authority over the police chief. (81 Ops.Cal.Atty.Gen. 304 (1998); see also 82 Ops.Cal.Atty.Gen. 201 (1999) [city administrator and fire chief are incompatible offices]

The basis of this section is Government Code section 1099:

Web Link

1099.  (a)  A public officer, including, but not limited to, an
appointed or elected member of a governmental board, commission,
committee, or other body, shall not simultaneously hold two public
offices that are incompatible. Offices are incompatible when any of
the following circumstances are present, unless simultaneous holding
of the particular offices is compelled or expressly authorized by
law:
  (1) Either of the offices may audit, overrule, remove members of,
dismiss employees of, or exercise supervisory powers over the other
office or body.
  (2)  Based on the powers and jurisdiction of the offices, there is
a possibility of a significant clash of duties or loyalties between
the offices.
  (3) Public policy considerations make it improper for one person
to hold both offices.
  (b) When two public offices are incompatible, a public officer
shall be deemed to have forfeited the first office upon acceding to
the second. This provision is enforceable pursuant to Section 803 of
the Code of Civil Procedure.
  (c) This section does not apply to a position of employment,
including a civil service position.
  (d) This section shall not apply to a governmental body that has
only advisory powers.
  (e) For purposes of paragraph (1) of subdivision (a), a member of
a multimember body holds an office that may audit, overrule, remove
members of, dismiss employees of, or exercise supervisory powers over
another office when the body has any of these powers over the other
office or over a multimember body that includes that other office.
  (f) This section codifies the common law rule prohibiting an
individual from holding incompatible public offices.

Based on the above, it appears that the Town of Atherton is in violation of Government Code section 1099.

Gee, isn't it funny how common sense and "the law" are, so often, one and the same.

Sincerely,

Kimberly R. Sweidy


Posted by Jon Buckheit, a resident of Atherton: West Atherton
on Nov 22, 2011 at 2:38 pm

I contacted council members to protest this appointment based on what seemed to me to be an obvious conflict of interest when it was announced, and was ignored. Ms. Sweidy had the courage to have a public statement read at the meeting this
illegal action was undertaken (which reading was videotaped by the police department and posted to YouTube), and was ignored. And now it turns out to be illegal.

The end cannot justify the means. Mayor Jim Dobbie must
remove Mr. Flint from this position immediately in order to comply with the law.


Posted by Kimberly Sweidy, a resident of Atherton: West of Alameda
on Nov 22, 2011 at 4:14 pm

Dear Mr. Conners,

Thank you for the email dripping in condescension.  I can see that you are doing a fabulous job of filling the shoes of your predecessor, Ms. Furth.  I find it particularly telling that you replied without including my original emails.

The law is not "my law," it is the law.  I don't own it.  I make no proprietary claims to it.

The facts fit perfectly.  Only a semantic gymnast would even attempt to claim that an Attorney General Publication saying that the Police Chief cannot be the City Manager does not apply to a case where the Police Chief has been appointed as City Manager.

Sticking the words "Acting" and "Interim" into the mix is neither convincing nor dispositive.  They change nothing.  Further, given the Town of Atherton's inability to recruit and retain properly credentialed and skilled talent to permanent positions, "acting" and "interim" have lost all meaning.  The Town cannot circumvent the law by playing games with titles.

"someone needs to be appointed to act in his absence"

Agreed.  It just cannot be anyone whose duties are incompatible, thereby violating Government Code section 1099.  The most logical choice to act in a City Manager's absence is an Assistant City Manager.  In the absence of that title, a person who performs that role on a daily basis.  As I am not an expert in the division of duties at the Town of Atherton, I can only guess that the person is probably Ms. DellaSanta, but that is only a guess.  Prior to this time, it was Eileen Wilkerson.

You speak in terms of disasters, as those who seek to distract and obfuscate always do.  In the event of an emergency, clearly the full power and expertise of the Town of Atherton government would be called upon for decision making.  In that case, the person "wet signing" would not be acting alone, but in conjunction with the pool of leaders.  Ms. DellaSanta's signature would be as good as any.

My concern is for the day to day conflicts that arise when the Police Chief is acting as his own supervisor.  Unfettered power, backed by the legal use of force, are my concern, and should be the concern of every freedom-loving American.

"The acting official does not hold any office, merely acts on behalf of the true office holder.  He or she is not paid extra to act on behalf of the Manager, nor does he assume any special duties or privileges while so acting.  For example, he cannot act in a manner detrimental to his own office.  He can't act on discipline from him or herselve for example.  The duty is limited to acting in those areas where  action is required before the real office holder can return."

Huh?  Seriously?  Do you actually believe that this explanation is at all illuminating?  Can I have a written laundry list of what he is and is not allowed to do?  Because honestly, this paragraph is as clear as mud.

"If a city manager went on a month-long cruise or safari, I'm sure you wouldn't suggest the City would be essentially frozen, unable to take any actions, pay employees, or in any way run the municipality.  Sorry, but the law does not require this absurd result."

I was wondering when the Straw Man Argument would appear.  And here it is, right on cue.  I never suggested that the Town of Atherton be frozen when the City Manager goes on vacation.  Stop attributing absurd statements to me.  It is patronizing and offensive.  Further, the City Manager is not on vacation.  He has an undisclosed illness, the severity of which is unknown.  He is currently in an undisclosed location, out of state.  Excuse me if I do not equate the current situation with the case where the City Manager is on vacation.

"which they could do, and in fact used to be the case in Atherton"

Well, that is an interesting factoid.  It seems that the Town of Atherton has a history of being poorly run, fraught with potential conflict and incompatible responsibilities.

"It wasn't that long ago that the Police Chief was also the City Manager although the jobs were not separately filled."

What in the world does this even mean?

"but please note that it is not a legal problem."

Oh, but it is.

Sincerely,

Kimberly R. Sweidy, JD, MBA
Attorney at Law

------------Original Message------------
From: bill conners <bslawstuff@yahoo.com>
To: "kimberly.sweidy.wg93@wharton.upenn.edu" <kimberly.sweidy.wg93@wharton.upenn.edu>
Cc: "eflint@ci.atherton.ca.us" <eflint@ci.atherton.ca.us>, "john danielson" <jdanielson@ci.atherton.ca.us>, "Theresa DellaSanta" <tdellasanta@ci.atherton.ca.us>
Date: Tue, Nov-22-2011 3:22 PM
Subject: Incompatible offices
Ms. Sweidy,

Thanks for your emails regarding this topic.  Unfortuntately, however correct your law is, the facts simply don't fit and your conclusion is therefore wrong.  Please let me explain.

There is only 1 Interim City Manager, John Danielson.  Whenever he leaves the area for whatever reason, most commonly on vacation, someone needs to be appointed to act in his absence.  An "acting" appointment is important so that continuity is maintained in the event of an emergency or administrative catastrophic event requiring some sort of urgent response before the real City Manager can return.

The introduction of cell phones and emails have dramatically reduced the need for such appointments, but because the City Manager serves as the director of emergency services when a disaster strikes, and wet signatures are required on declarations of emergency and other similar documents, appointment of an acting official is extremely common.

The acting official does not hold any office, merely acts on behalf of the true office holder.  He or she is not paid extra to act on behalf of the Manager, nor does he assume any special duties or privileges while so acting.  For example, he cannot act in a manner detrimental to his own office.  He can't act on discipline from him or herselve for example.  The duty is limited to acting in those areas where  action is required before the real office holder can return.

This makes incredible common sense as well.  If a city manager went on a month-long cruise or safari, I'm sure you wouldn't suggest the City would be essentially frozen, unable to take any actions, pay employees, or in any way run the municipality.  Sorry, but the law does not require this absurd result.

You would be correct if the Town wanted to appoint a full-time Police Chief to the position of City Manager without merging the jobs, which they could do, and in fact used to be the case in Atherton.  It wasn't that long ago that the Police Chief was also the City Manager although the jobs were not separately filled.

Again, thanks for bringing this to our attention, but please note that it is not a legal problem.  Bill Conners, City Attorney


Posted by Kimberly Sweidy, a resident of Atherton: West of Alameda
on Nov 23, 2011 at 12:33 pm

Kimberly Sweidy is a registered user.

Let us turn our attention away from Mr. Flint and onto Mr. Conners. I simply do not understand how the Town of Atherton City Council finds these people.

The State Bar of California website lists Mr. Conners's address as a PO Box in Pebble Beach. So there are no appropriate choices in the Silicon Valley? The website shows no law firm affiliation. His email address is listed as: bslawtuff@yahoo.com. However, his response to me came from bslawstuff@yahoo.com. When I asked him:

"And please tell me that your email address does not actually read:

B.S. Law Stuff at Yahoo.com, where B.S. could easily be read as B*** S***?" (Actual email did not utilize "***.")

Mr. Conners responded: "Or basically superior. Depends where your mind is I suppose."

The State Bar of California website lists Jennifer Conners Larson's address as what appears to be a residence in Hillsborough (according to Zillow). It shows no law firm affiliation. According to the Almanac, Jennifer Conners Larson is the Assistant City Attorney and Mr. Conners's daughter.

Web Link

Web Link

According to the Almanac:

"Under terms of the town's contract with Mr. Conners, the new attorney will be paid a fixed monthly retainer of $9,800, which will cover fees for his standard services and for 'other members of his legal team' in delivering agreed-upon services."

For almost $120,000 a year retainer, shouldn't the Town of Atherton be hiring a City Attorney from an actual law firm? Such a person would have a talent pool and other resources behind him.

Of great interest to the citizens of Atherton is the following document:

Web Link

It describes concerning behavior and statements by Mr. Conners, when he was acting as the Monterey City Attorney.

I was not able to reach Mr. Dilworth by telephone, but I can confirm that a cursory investigation reveals that HOPE is an actual organization, and the telephone number is still valid. I left Mr. Dilworth a message.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 23, 2011 at 12:56 pm

A committee of four citizens, myself included, and Two Council members reviewed all of the applicants for this position and we unanimously choose Mr. Conners as our first choice. He was not only the least expensive but brought superior experience to this position. A number of more local and larger law firms were judged to be less qualified for this role.

The four citizens chosen to serve on this committee by the Council were the only citizens who applied to serve and included two lawyers and two non-lawyers.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 23, 2011 at 1:04 pm

Posted by Peter Carpenter, a resident of the Atherton: Lindenwood neighborhood, on Apr 16, 2011 at 12:45 pm

Having served on the Citizens' Selection Committee for the new Town Attorney I can assure you that the lowest bidder was also the most highly rated. His personal hands on experience includes 15 years as City Attorney for the City of Monterey and an additional nearly 11 years as Assistant City Attorney.

What the Town is getting is a highly experienced individual rather than a highly paid law firm.

I am confident that he will do a superb job.


Posted by Sansobar, a resident of Atherton: other
on Nov 24, 2011 at 10:41 pm

The real power in town has always been the PD. Flint's appointment just makes it official.

Just look at what happened several years ago when our ex finance director questioned PD expenditures.

It seems Athertonians have a very short memory.

The concentration of power that the Mayor approved is indicative of a lack of good judgment.


Posted by Jim Humphries, a resident of Atherton: Lindenwood
on Nov 24, 2011 at 11:27 pm

One thing is for certain, that being Flint has the time on his hands to do the city manager work. He's certainly not spending any of his time on disciplinary and corrective measures for the police department.


Posted by Zillow, a resident of Atherton: West Atherton
on Nov 25, 2011 at 8:28 am

No that it has been estab;ished that Danielson's health renders him unable to hold the interim city manager indefinately the City Council should turn its eyes upon a permanent replacement.

Atherton's chronic crisis of leadership has just become acute.


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