Wednesday, March 4, 2015

Odds & Ends

Stuff we've been remiss in not mentioning yet:

- Encinitas terminates Peak Democracy: 4-1 vote.  Shaffer voted to keep Peak Democracy, despite its numerous well-documented and irreparable flawsreportedly because staff likes it, and Shaffer trusts staff.

- Council, Sabine disagree on BIA lawsuit: Blakespear said that the council and city attorney disagreed on the case, which would explain why the council replaced Sabine with outside attorneys.  Presumably, Sabine wanted to surrender to the BIA on some issues that the council wanted to contest.  It looks like a good move by the council as Shaffer's recent newsletter reports, "I was impressed by the outside counsel and think they will be a great asset as we move forward with all of our housing-related work."

- Yesterday's mid-afternoon Pacific View subcommittee meeting: anybody take time out from work to attend?

But give us a break. Our coverage of these issues would still be "excellent" by Encinitas City Council standards, right?

75 comments:

  1. No surprise that Shaffer wants to keep PD, she's one of the dumbest council people in years.

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    1. Worst personal characteristic: she can never, ever admit it when she's wrong.

      A dumb way to go through life and a terrible basis for decision making.

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    2. 12:19,

      To be fair, she doesn't hold anyone else accountable either.

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    3. 12:19,
      One time I admitted I was wrong. But then later on I found out I was right.

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  2. Tony was right there along with Lisa the whole time supporting Peak until?

    Thanks Tony for finally waking up and seeing what many others saw from the beginning.

    Is this due to Catherine's influence? I am thinking yes and thank you Catherine for continuing the positive change so needed with our council now that vina is out of there. Keep up the good work Catherine. It is so needed.

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    1. Nothing to thank Tony for: he is revealing himself increasingly to be about as opportunistic as they come. Between meeting with developers (most recently Shea Homes) and talking immediately after being elected about projects "penciling out," he has no moral compass. Too bad he fooled most if the people in the last election, but never again. He turned too many former supporters into opposers.

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    2. Catherine Blakespear for MAYOR. She's a winner.

      Dump the Crown Princess (Gaspar) and her sidekick pussy Muir.

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    3. Good job on PD, council. And refreshing that council is at odds with city atty on BIA. Missed PV but am optimistic. Now it looks like that time has moved on and everyone has forgotten about Olympus Park, other uses may be planned. I wonder what those would include?

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    4. Remember that the council originally approved 5 to 0 the changes made in the interpretation of the Density Bonus Law, especially the rounding down of base density, which is clearly stated in the code. The city has pushed City Attorney Sabine aside and hired a good outside attorney. The BIA has filed a lawsuit to intimidate the city. Thank goodness Vina is gone and hopefully Sabine is soon to follow.

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    5. Get rid of Sabine.

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    6. I wouldn't rule out the City hiring outside counsel to set up a loss for long-term gain. Setting up a false attempt at defense is not exactly outside past actions. Think Rutan & Tucker.

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    7. 4:48 PM

      Sorry to be crass but that is just total bullshit. The city hired one of the top attorneys in the state on these issues. If they lose it won't be because of them.

      Also, I thought the council was under Sabine's spell? Maybe now you realize that a city attorney is only an adviser and it's up to the council whether or not to take his recommendation. In the past I'd wager that the council didn't take his advice and went their own way.

      Ironic to see that the only lawyer on the council is the one who violated attorney-client privilege by revealing their closed-door discussion. And please spare me they should discuss everything in public.

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    8. Wow, that comment touched a nerve. Ha!

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    9. It's in the public's interest to know what happens in closed sessions. After all the taxpayers ultimately pay all the bills. The Brown Act requires that any decision made in closed session must be reported out. Our city has violated this in the past.

      Some cities record closed session meetings and release the recordings after a certain time period or when the case is settled. Do we dare hope for that in Encinitas? Otherwise there sometimes is an appearance of impropriety.

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    10. 6:49 PM

      Yes, I plead guilty. Sometimes the depth of cluelessness does hit a nerve. Personally, I have no problem with releasing details of closed-door sessions after a certain period, especially when the legal issue has concluded.

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  3. They should discuss everything in public.

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  4. The council is absolutely mesmerized by Sabine FYI.

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    1. True...because he has "institutional knowledge," according to Barth. Guess the current five feel the same way.

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    2. That "institutional knowledge" comment always puzzled me. Institutional knowledge can be important within an organization, but not from a city attorney. City attorneys need to know the law, not who did what five years ago.

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    3. ... unless of course the city has done so much crooked stuff over the years that they need someone to keep all the stories straight! :)

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    4. Gee, could that be possible EU. Crooked stuff and Sabine knows about it. Oh my........

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    5. That is why a "forensic" audit is needed. I'm sure there are crooked books behind those city walls somewhere.

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    6. There's that word again! Sabine knows where the bodies are buried because he helped put them there. What a joke of a city government this is. Too bad the joke's on residents.

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    7. Maybe you are right about widespread financial crimes and fraud at City Hall. Then again, without evidence, you may as well accuse them of pederasty and orchestrating the 9/11 attacks.

      A forensic audit happens after crimes have been exposed. You want a forensic audit? Simple: get a whistleblower with enough evidence to attract the attention of media or prosecutors.

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    8. Don't be silly. There is absolutely no suspicion of pederasty or orchestration of the 9/11 attacks at city hall. However, there is reporting of illegal behavior in city, county, state, and federal governmental entities on a weekly basis. Is our city somehow the exception? Why did Gus Vina say we weren't going to use the word forensic?

      A forensic audit is used when there is a strong suspicion that there are ongoing unexplained irregularities. If crimes are exposed, there is no need for a forensic audit. There are people at city hall that talk about in house activities privately, but don't dare speak out publicly. It's usually the whistle blower who get skewered.

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    9. Could we start with an investigation into the giveaway of the Little League fields?

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    10. Forensic audits occur when there is suspicion of fraud or other illegal activity and are usually targeted to a specific area of activity. My suspicion is that people use the term here in hopes of revealing funds being used not as council had proclaimed. But council has discretion to move money around various departments and projects as long as the use of funds is within their authority.

      By that I mean general revenue funds can be used pretty much anywhere but funds collected as fees can only be used for the purpose for which they were created. Last week's council meeting had a discussion of building permit fees which primarily fund plan review and inspection. These fees can only be used for these purposes and not fund other city functions. While the fees include a small proportion of the fee for city overhead, that amount has be closely tied to the actual cost of the overhead which in this case includes a city employee support position, office space, etc.

      You don't need a forensic audit if all you want to find out is the money being spent as advertised. A regular audit will do just fine.

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    11. "We know there are crimes. We just don't know what crimes, who did them, when, why, how, or have a any shred of evidence."

      Then what you want isn't technically called a forensic audit, it's known as a fishing expedition.

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    12. Thank you for this, 9:34: "Last week's council meeting had a discussion of building permit fees which primarily fund plan review and inspection. These fees can only be used for these purposes and not fund other city functions. While the fees include a small proportion of the fee for city overhead, that amount has be closely tied to the actual cost of the overhead which in this case includes a city employee support position, office space, etc. "

      Where on the webcast could someone find that discussion? Was it part of an agenda item? Was it during the budget discussion?

      We don't need an audit, only public info requests to already know, now, that $10 Million was funneled into Sabine's private law firm through the City of Encinitas in 7 years, from 2007 to 2014. Was this money all for city attorney's fees for that law firm, alone? That's hard to swallow.

      How could Council now give him an improved, good to excellent evaluation? Instead of using evaluation forms created by the subcommittee, that council subcommittee formed to set up the evaluation process deferred to Risk Management and institutional pressure, behind the scenes. LS and KG ended up using Carlsbad's evaluation form, and apparently still are not considering huge questions raised by the public about the city attorney's past performance.

      This failure to understand and act by Council includes the members' seeming to ignore our city attorney's role in not realizing that the contract for the Little League playing fields was being disadvantageously modified. The public should have had a report from Sabine at a regularly scheduled Council Meeting when a contract involving a public asset is being reviewed and renegotiated.

      Sabine has thrived and still thrives on back room deals. Please Council, help us to get rid of him. Don't continue to back down because you want to wheel and deal, and spin, with the big guys.

      Council apparently doesn't have enough trust in the members' own judgment, and must constantly defer to corrupted contractors, con artists, and con men who are using city management as a tool.

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    13. 1:47 PM

      The building permit fee discussion was part of the mid-year budget item. Some council members were confused about the request to upwardly adjust both revenues and expenditures due to increases in building activity that exceeded the amounts in the budget. The was talk of approving the revenue increase but not the expenditure when staff had to explain that the fees are basically a pass through as far as the city is concerned because the plan and building inspections are performed under contract with Esgil. And if you're wondering, the staff doesn't automatically get to spend additional revenue until it's approved by council.

      I don't have time to find it on the webcast but it was the item on the mid-year budget report.

      Unless the city attorney is expected by council to review contracts for policy implications, that is not their role. That's the role of the council. It was the council's role to understand the policy implications of the YMCA contract change. It's the council you should be directing your anger at not the city attorney.

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    14. Annual audits often miss fraud because they are only checking the numbers that are provided, not looking for fraud. That's what a forensic audit does. Here's a $6.4 million embezzlement in Pasadena over a 10 year period that was overlooked until an insider called attention to it.

      http://www.pasadenastarnews.com/general-news/20141230/pasadena-ex-employee-suspected-of-stealing-6m-in-city-funds-scandal-larger-than-bell-case

      http://losangeles.cbslocal.com/2014/12/30/ex-pasadena-city-employee-accused-of-embezzling-6-4m-over-10-years/

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    15. There is a difference between an annual audit and a special audit. A lot of auditing consists of reviewing procedures and interpretations (i.e. why did you charge this fund account with this bill). There usually isn't time in an annual audit to review everything so the auditors will sample. A special audit may involve all accounts and go back multiple years. A special audit could turn into a forensic audit if illegal activity is suspected in a special audit. Fund accounts can be messed up without anything being illegal. Sometimes it's just good old incompetence.

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    16. Okay enough of the generalities, the sneaky suspicions, the I hear that X was going on, etc. I haven't seen anyone hear give any concrete reasons why a full city audit should be performed. As somebody else here mentioned if all you want to do is go on a fishing expedition because you simply suspect that things aren't right, well that doesn't cut it.

      Give us some evidence, not hearsay or innuendo.

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    17. OK. There were questions about Surplus Net Revenue payments to Carltas from ERGA ($128,000) when there were no Surplus Net Revenues. The Mello-Roos tax assessments were raised on every property owner on the Encinitas Ranch as a result. The HOAs asked for an audit. The HOAs and ERGA split the cost. City Manager Gus Vina carefully excluded the Surplus Net Revenues from the audit. Jay Lembach, financial advisor to ERGA, no longer works for the city.

      Hint to Anonymous at 6:04: ERGA is the Encinitas Ranch Golf Authority, a public/private partnership between the city and Carltas. If you are serious, you will do the rest of the research yourself. Otherwise you are trying to stifle others from expressing their opinions.

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    18. Council members that have routinely taken favors from city subcontractors / vendors and have thumbed their nose at any honest leadership. You can use free tree trimming as an example (well known fact) free appliances we all know about, but there is MUCH more that a detailed audit will reveal. If I were a former council member I wouldn't sleep well at night.

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    19. 6:31 PM

      Hey, thanks for being patronizing. I know what ERGA stands for and your response is exactly the concrete example I was calling for. I'm not saying you're right but you are specific and a full audit may be called for. Personally, I don't know, or have time to find out, whether "Surplus Net Revenue" referred to an existing surplus or a new revenue stream based on the increased Mello-Roos tax assessments but you made the case and I can't argue with that.

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    20. 8:30 PM

      Unlike 6:31 PM, all you've stated was hearsay and innuendo. Besides, free tree trimming and free appliances wouldn't show up in any kind of audit. And whether or not you put "MUCH" in caps, that means nothing. You are simply assuming the council is dishonest and want to go on a fishing expedition hoping something will turn up.

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    21. Many members of the general public are not satisfied with management. There were legitimate questions raised about alleged surplus revenues re CALTRAS and ERGA contracts. Untrusted Gus Vina ruled out a forensic audit in that case. The questions remain unanswered.

      "Unless the city attorney is expected by council to review contracts for policy implications, that is not their role. That's the role of the council." 2:25, my feeling is, and I venture that it is shared by most of those who try to inform ourselves about what is going down at City Hall, both publicly, and behind the scenes: A good city attorney is contracted by and answers to Council. Part of his or her job responsibilities should automatically be to review contracts for policy implications. Council doesn't have the experience, the legal training, or the overall understanding to do that.

      Reviewing these kinds of contracts should be a competent City Attorney's role, and the responsibility for that failure, in the case of the contract for the former Ecke Property, now under the stewardship of the YMCA falls on the City Attorney. He should be looking over contracts signed and promoted to council by the City Manager, in this case, our ex city manager, distrusted Gus Vina.

      Glenn Sabine was also City Attorney when former Council Members negotiated for the lease of the Pacific View property for an interim public works yard. He should have looked over the recitations in that lease agreement, which stated Council would rezone several surplus school properties for redevelopment. The exchange rate was that the City would only pay one dollar per year, as the City now does for the County land on which the library sits. Also, there seemed to be some behind the scenes maneuvering between City officials and EUSD officials to overlook the terms of the Naylor Act. It was claimed the Naylor Act didn't apply, at the time, because the property was being leased, not sold. But the Naylor Act is effective when a school is leased or sold, because it is no longer being used for public schooling purposes.

      Glenn Sabine is also partially responsible for the City's overpaying for Pacific View, because he didn't investigate that contract, at the time, beginning in December of 2003, when the property was initially leased out to the City, also leased to Encinitas Glass and Leucadia Towing. Sabine was silent on the Naylor Act, and the public was not made aware of that law's implications until Bob Nanninga started bringing it up. As a journalist, Bob, RIP, was more informed about the law than our corrupt City Attorney. This isn't innuendo. These are facts.

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    22. Correction, it was claimed the Naylor Act didn't apply because PV was to be traded, not sold. It was, according to the superintendents, including, eventually, Baird, to be traded for a commercial property, which would bring in a continuous revenue stream.

      What we got instead is a "one time injection of funds," into EUSD's General Fund, for an "educational endowment," after poor negotiations and advice through our ex city manager and current city attorney.

      This funding for an undefined (to the public) "educational endowment" was recently disclosed at a EUSD special meeting, with only 24 hour posted notice. Education Code mandates that there be a public report for the allocation of funds from the sale of a surplus public school at a regularly scheduled meeting. Superintendent Baird, once again, isn't following statutory law.

      The fact that the property was being leased, and that the lease kicked in the specifics of the Naylor Act, was disregarded. Although this issue involves poor conduct by EUSD and its legal counsel, attorneys contracted for by EUSD or by the City of Encinitas, should be competent, and should give correct legal advice regarding all contracts, all leases, and the interpretation of open government law, including the Brown Act, which defines what constitutes a regularly scheduled meeting, which includes a minimum of 72 hour notice.

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    23. Gee the fishing expedition seems to be working, soon a tsunami will be caught.

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  5. Lawsuits are out sourced to more "experienced" law firms. Just what is Sabine good for then? His expertise is narrowly limited to his "institutional
    knowledge"? How is he paid - a fixed wage or hourly rates? If the city was the Smithsonian, they'd have reason to keep this dinosaur. Sabine should have been dumped a long time ago, as he has definitely out lived any usefulness.

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    1. Public and private organizations often have legal counselors who function in a more management/advisory capacity and hire litigators to handle the actual trial procedures. If your counselor is often in court then you've got a big problem.

      That's why your family doctor sends you to a specialist. Or do you think they do that because you think they are incompetent?

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    2. Sabine is paid both hourly and by contract. All of the services he turf to his own firm, Morrison and Sabine, are billed by the hour. In one year he made 1.5. million from us for both his contract work and his firm's work. Not a bad gig. And, yes he knows things. However it is unlikely that he would ever admit to that. Remember he was dating the Director of Finance, Jennifer Smith for some time, before she left the city. My understanding is he gets a lot of info from a lot of sources. Enough said.

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    3. 9:39 AM Bad analogy. Medicine is a science; law is hokus pocus. Sabine is only qualified to pass out aspirin by your reckoning.

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    4. 12:14 PM

      Sorry, but the analogy is one of specialty not science. A family doctor is usually a general practitioner who sees many varied illnesses but often doesn't get a chance to delve deeply into certain types whereas a specialist sees many cases of the same type. Same with lawyers. Some are good at trial and some aren't. Also, they often have specialties like criminal law or civil law or even further refined as property, land use, etc. Depending on their specialty they may or may not spend a lot of time in court, especially actually arguing a case. A city attorney is like a general practitioner.

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    5. 1:53 PM Still a bad analogy. Sabine is a general practitioner?
      Which means he knows which lawyer buddy to farm it out to? The city could use Goggle to act as the city attorney then.

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    6. 2:43 PM

      If you don't know what you're talking about please don't share it with the rest of us.

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    7. 3;50 PM Pot calling the kettle black syndrome here. . You got multiple personalities too ? "Us" ?? Since when do you speak for the collective?

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    8. 4:21 PM

      Sorry, I didn't know I was messing with your delusions. Yes, I'll just slowly step away and softly repeat "you really do know what you're talking about". Hopefully, you're harmless.

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    9. 5:29 PM Ohhhh, clever, aren't we? Glad you've finally seen the fallacy of your muddled thought processes. Just go away is fine...

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    10. PS The physician/lawyer analogy still stinks.

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    11. 7:56 AM

      So if you're ever charged with a felony be sure to hire a probate lawyer to defend you because a lawyer is a lawyer, right? And I'm sure if you ever develope cancer, you'd stick with your family doctor because oncologists are too expensive and a doctor is a doctor. They all went to med school.

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  6. Paid to work on a love child on city time, what a job!

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    1. Legal briefs at half mast...

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  7. I personally thought PD was a good idea to get more people more involved. The flaws you're talking about are really a non issue. The title says "chalked full" of fictional characters, but there were only 4. It was a poor attempt by one person to show the system could be manipulated. This blog could be considered just as vulnerable and unstable since a person can post anonymously. Having it gone though isn't a big deal to me. I just hope we can find someway to get more people involved.

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    1. The public doesn't trust PD. It was a marketing tool.

      Sometimes the public gets weary of being played for fools.

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    2. This blog is a free discussion board. PD has been the sole source for gathering public opinion for the Housing Element. There is a big difference in pupose and cost--this platform being free!

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  8. There is wide spread interest in conducting forensic audits of cities and corporations. Simples audits are not enough. When things are going well in companies and corporations, that is when fraud tends to occur.

    Several books have been written on this subject. Get informed. A forensic audit is not unheard of.

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    1. 1:50 PM

      "When things are going well in companies and corporations, that is when fraud tends to occur."

      So are you implying that things are going well at the city financially so it's probable that fraud is occurring? Therefore we need a forensic audit to ferret it out.

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    2. 1:50 - Really???? My experience has shown that fraud and collusion tends to occur more frequently when unusually high or aggressive expectations are tied to the incentive compensation of key managers and executives. This would be true irrespective of whether a company were performing well or not.

      As for all this confusion on the term "forensic audit", it all goes back to purpose. A forensic audit is used to support claims made in court, and where the forensic auditors may be asked to testify as expert witnesses in support of their audit. I'm not really sure that's the intent of most of you who are using this term.

      - The Sculpin

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    3. 2:35 Then perhaps you should educate yourself by reading the latest books on this.

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    4. 2:06 No one implied anything, except perhaps yourself.

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    5. Glory hallelujah! We have an expert because he read a book.

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    6. 5:33 I would bet you are an expert beer can popper.

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    7. 8:22 PM

      Unfortunately, no. Maybe you can give me some tips.

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    8. 11:38 Here is the tip you asked for ----- pick up a book and read it.

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    9. Fraud occurs under all sorts of circumstances. The biggest motivation is greed, a very common human characteristic. A forensic audit will turn up all kinds of things once the political will exists to do one. Think Bell or Pasadena. I remember Christie Guerin adamantly saying NO to a request from the public. What are the politicians hiding? With all the money spent on consultants, money spent on a forensic audit might yield more benefits.

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    10. Just to be clear, 7:52 - is it your desire to use the results of the forensic audit as evidence in a court proceeding? Do you really want to pay for the extra time, documentation, and skill set required to produce such evidentiary materials? Or do you just want an accounting firm to go in there and perform an audit of the financials as well as a test of internal controls? The former is terribly expensive, and the latter, while still expensive, is far cheaper. I realize this may sound like semantics, but maybe this is why Guerin said no - she knew the difference.

      - The Sculpin

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    11. Responding to above:

      1. Please tell us what books you recommend to develop expertise. Please list titles and authors.

      2. Having just scanned the article about Pasadena, it sounds like a lack of oversight and control that allowed the fraud to occur. One, the employee had other employee accomplices who helped cover the activity. Two, why was it that city management didn't periodically review the performance of this fake company? Why didn't the city periodically put the work out for bid? It just sounds like the perpetrators were allowed to work in their own little word.

      As I said, I only scanned the article and the some of the answers may be in there but unless fraud is suspected most audits don't question the legitimacy of a company who is submitting bills, although the may point out the lack of control issues.

      Personally, I hope they throw the book at these people and they get substantial time in jail.

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    12. 11:21 AM I meant "work in their own little world"

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    13. 11:21 AM

      God, I can't type this morning. "... although they may point ..."

      But it also occurred to me that the people who call for a forensic audit must believe there is currently fraud going on at the city without any substantiation other than hearsay and innuendo, with a healthy dose of basic distrust as well. They just feel it in their bones and if we just go in and challenge every transaction, because a citywide forensic audit would pretty much do that, we will find it. That would be very expensive to say the least.

      But I don't get the sense that actual fraud is the real reason for most of these people. I think they just dislike the people who run (and have run) the city and the way they have run it and hope to trip them up. Actions by this and previous councils may not be to their liking, or mine, but to intimate that they are illegal is a whole different story.

      Responding to an earlier comment about free tree trimming. Assuming it was true. If the tree trimming company decided on its own to trim the trees of a council person for free or at a substantial discount unavailable to others, that would never show up in any kind of audit. However, if the tree trimming was performed as part of a city contract and was billed to the city as such, that is fraud and would require a forensic audit as the company would be required to prove that all of their bills during a certain period accurately represented performing legitimate city work. So in the former case, even if it was performed in any kind of quid pro quo exchange, while illegal, it wouldn't show up in an audit.

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    14. There should be a forensic audit, specifically, of ERGA and Caltras' contracts. Contractual obligations were not met. That was proven through the subcommittee meetings with LS and TK. That is one specific case.

      Also, there should be a much better accounting when monies that are earmarked or designated are being shifted to other accounts. In particular, this is not allowed with respect to surplus revenues that come in through the permitting process, which involves both Planning and Public Works. Any monies which remain unspent, any surplus, by statutory law, Government Code, must be used to reduce permitting fees. Additional funds are not allowed to pay for City overhead, etc.

      Any surplus should not be used for expensive fee studies designed to raise fees again. Planning permitting fees and so-called development impact fees, or "capacity fees," assigned through Engineering or miscellaneous plan check fees charged by the private contractor, Esgil, are being used as hidden taxes. City policy, for many years, and under the County, allowed for the replacement of a hot water heater without a permit, or permitting fee, providing the pipes were not altered, and the water heater was replaced in the same location. Now, as of 2009, the City charges an additional permitting fee TAX of $60 to replace a leaky water heater!

      The County passed the Homeowner's Relief Act, in approximately 1997, to assure that people were not discouraged from getting a permit to make minor repairs. Roof repair, for example, was only to cost $7 for the permit. This was to encourage neighborhood homeowners to be able to maintain and improve their homes, without having to tack on excessive fees to the repair or minor remodel process. Now the permit for re-roofing is hundreds of dollars, in the City of Encinitas. All this, while business owners are given taxpayer dollars for facade grant programs, without having to demonstrate any financial need.

      Many people just do minor repairs without permits, usually, not even knowing they are now required. The City is using Planning and Engineering to set excessive taxes, justified by fee studies that always say the same thing. Permitting fees are only paying about 60% actual costs.

      But Govt. Code says that the permitting fees are to primarily be for inspection. Permitting fees are NOT to be a catch-all to include utility fees, and costs for hiring more Planners, who are really needed, mainly, to push the housing element update process, and various public works projects, etc.

      And why does Esgil have a monopoly on all plan checks and inspections? I can see why the City contracts, exclusively, with the Sheriff for police services, but the Sheriff's Dept. is another public agency.

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    15. Caltras?

      Who is Caltras? Never heard of them.

      When making an accusation of fraud, it helps your credibility if you know the name of the entity you are accusing.

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