Last month, Bill Emlen announced he was taking a position with Solano County, effective September 27 and his final day with the city would be September 24.  The question now is what process will occur to look toward hiring a permanent city manager.  It should be noted that in 2006, after the council dismissed Jim Antonen from the city manager position, Bill Emlen was named interim city manager and eventually hired on as permanent city manager.  Will Mr. Navazio follow suit or will the council do an external search?

According to the city's release late last night, the Council voted in a Special Meeting on August 31 to engage in a search to fill the permanent City Manager position. Currently, the city is preparing a Request for Proposals to hire a search firm. Selecting a search firm and completing the hiring process for a permanent City Manager will take several months.

“Paul is a perfect fit to keep us moving in a forward direction during these difficult budgetary times,” said Mayor Don Saylor. “His knowledge of the organization, particularly the financial aspects, is paramount, and I am confident he will be able to manage the transition seamlessly.”

Mayor Saylor added, “The Davis City Council has every confidence in Mr. Navazio’s leadership during this transition. He has all the authorities, duties, responsibilities and privileges associated with the position of City Manager. Paul will continue in this position until the City Council has conducted appropriate processes to fill the City Manager position.”

Mayor Pro Tem Joe Krovoza added, “I am pleased the Council was able to act  swiftly on this matter, giving Paul time to implement a transition plan.  One of his first tasks will be to organize senior management to reflect the needs of the transition.”

Mayor Pro Tem Krovoza added, “The City Council appreciates Paul’s willingness to accept this assignment, and the Council is equally appreciative of the ongoing excellence in public service exhibited by the staff in every department of city government.”

Councilmember Sue Greenwald recalled the first time she met Paul, saying, “I met Paul at a League of California Cities revenue and taxation policy committee meeting. Paul impressed me with his knowledge and analytical abilities. I suggested he apply for our open Finance Director position, and he did. I remain as impressed with his intellect today as I was when I first met him.”

In response to the news of the appointment, Mr. Navazio said, "I am honored - and humbled - by the confidence the Council has placed in me and I am excited at the opportunity to serve the organization and community as Interim City Manager."

The contract for the Interim City Manager position will come to the City Council for approval at the September 21 meeting.

There is little doubt that Paul Navazio is qualified for this appointment.  He has been finance director during very challenging fiscal times and has overseen some of the major changes that the city has and will embark upon.

However, given the challenges ahead, there should at least be some consideration of the fact that Mr. Navazio's position right now, at least, is vacant.  The next few months, in our view, are critical to the city's ability to stave off further fiscal crisis.  Mr. Navazio will need  not only to perform the duties of city manager and lead the entire city, but also to help guide the city fiscally.

That seems a tall task, even for one as eminently qualified as Mr. Navazio.  The urgency of this situation is great.  By our calculations, the city needs to figure things out within three years or face further fiscal crisis as unmet needs, unfunded liabilities, and increased pension obligations meet an uncertain and sluggish economic forecast.

The city's recently approved MOUs only extend two additional years and are insufficient to address the core issues facing the city.

How Mr. Navazio will be able to wear both hats is a matter of huge concern.  If the council embarks on an external search process, we are looking at no less than six months and possibly nine months to a year with an interim city manager, and apparently with no finance director.  This is no small concern, and is certainly not meant to denigrate the qualifications of, or the honor and trust placed upon Mr. Navazio.

These are simply tough times and they require quick and decisive actions.  The coming months will tell us much about the direction and future of this city and community.

---David M. Greenwald reporting

In August, the DA obtained plea agreements from two of the five defendants that remained in the case.  Alexander Valadez  had been charged with two counts of assault with great bodily injury, conspiracy to commit a crime, intimidation of a witness and threatening to commit a crime.  Each one of these charges also had a gang enhancement.  He pled to one count of PC 245 (A)(1) Assault with means likely to produce Great Bodily Injury (GBI), which is a "serious felony" under PC 1192.7.  And he admitted to one count of gang enhancement.  He received 9 years in prison.

Julia Luckie was in custody and accepted a plea that will give her no prison time, but three to five years of felony probation.  She had to sign a plea agreement where she admitted gang membership, in exchange for probation and no prison.

The other three defendants Ricardo Garza, Sr., his son son Ricardo Garza Jr., and Jesus Sanchez remain, and will have an additional  hearing later this month.  They were offered no prison time, as well, in exchange for admission of gang membership.  It is not known whether they have accepted this agreement or if they will continue to contest the charges.

By putting this incident at the center of the controversy it potentially exposes the DA's office to charges that the Hopkins brothers, who the DA is claiming to be victims, actually instigated the fight with several individuals, then became overwhelmed as the co-combatants brought friends while they did not.  While these issues did not come out in the August preliminary hearing, it is possible that the DA's office is now opening a door that will allow rebuttal witnesses that may cast a very different light on this entire matter.

On Monday, the defense argued that they were not properly notified of the witness changes and that this was contrary to the rules presented in the case management order.

DA Ryan Couzens threw up a host of smoke-and-mirrors arguments against the defense's contention.  He argued they are responding to the fact that the court is requesting that they call civilian witnesses.  They are not happy and they believe this may be endangering the safety of civilians.

Mr. Couzens continued,  arguing that the plaintiffs have provided discovery in this case that they do not have to provide.  That the defense has significant evidence to which they are not entitled to under civil litigation rules of evidence.  This has put the plaintiffs at a disadvantage.  They accused the defense of late disclosures of information and that they have had no new discovery since December of 2007.  Basically the defense, Mr. Couzens claimed, is freeloading off the plaintiff's efforts.

The defense, led by Gordon Kaupp, countered that they had not been given good cause and that the plaintiffs have not followed the pre-trial order.

David Dratman added that the plaintiffs appear in disagreement with the court's order on the rules of evidence.  He said that this is the court's order and the plaintiffs have to comply with it.  They cannot change the rules midstream simply by the calling of witnesses.

He pointed out that the plaintiffs basically dumped 10,000 pages of materials on them, some of them beyond the cut off date for new discovery.

He argued that the question is whether there is an on-going nuisance, and that the plaintiff's case thus far is showing isolated criminal activity that is being prosecuted under existing laws.  This is not in response to what the court is asking for, which is to show true evidence of a nuisance the current laws cannot deal with.

Mr. Couzens argued that this is not about case management, it is about suppression of evidence.  He argued that the defense knew of the police report.  There were two African-Americans assaulted by this gang, and that goes to the issue of a recent attack by this gang.  The information was not available in February since the event did not even occur until March, but it was included in the June discovery documents.

Judge White acknowledged that this is about the need to keep the case manangeable, and as such it is necessary to have rules about what information and witnesses will be allowed and how the parties are informed about changes to the witness lists.

However, since this is not a single incident case but rather a case in which the question is whether there is a continuing nuisance to the community, there is the need to augment information.

The defense knew about the Hopkins brothers, but not as witnesses.  The plaintiffs need to file motions to add to the witness list, however she is treating their previous response as a motion to add witnesses.

She will thus allow the Hopkins brothers to testify, but will limit their testimony to what is contained in the police report.  She did mention that this move, however, opens the door on both sides and that the defense will be able to add witnesses in rebuttal.

The Memorial Park attack is interesting as a critical case.  It was basically a fight that grew from a few combatants to a larger number.  However, it was largely a fist fight with a few implements brought into the fray.  But it may well be an incident where only one of the major combatants receives jail time.  The DA is apparently willing to give no prison time to four of the five adult defendants in this case.  They have offered no prison if each of the four individuals admit to gang membership.

As we wrote at the time, this was not about justice for the victims involved.  Rather it was about promoting the District Attorney's agenda to get the gang injunction passed.  Deputy DA Ryan Couzens, one of the co-counsel for the plaintiffs in the gang injunction case, was the prosecutor of this case, and apparently the priority was to get gang admissions rather than punish the assaults on the Hopkins brothers.  Questions about how the incident began and the fact that the Hopkins brothers may have started the fight were not addressed during the hearings.

The priority for Mr. Couzens was clearly with getting people to accept gang validations and to admit to gang membership.  This is actually an interesting pattern that has continued for a number of years. There are numerous cases that we have tracked and looked up, where the defendants have been promised no prison time in exchange for admitting to a gang enhancement.  This goes one further, as in this case, they are actually having to admit to gang membership.  How much this type of coerced deal will weigh into the gang injunction trial is anyone's guess.

It seems odd that a fight that occurred outside of the safety zone would gain so much prominence in the plaintiff's case.  But if used properly, the defense can turn this to their advantage by pointing out the relatively low level of violence in West Sacramento compared with other communities facing gang violence and under the auspices of gang injunctions.  We are not talking about a community with multiple homicides on a regular basis as the result of gang violence. 

Does this constitute an ongoing criminal nuisance that current laws are ill-equipped to manage, or is this another attempt by the DA's office to overblow relatively minor and isolated incidents for their own political and perhaps financial benefit?

---David M. Greenwald reporting

“It would be a hardship and not fair to Mr. Topete for Mr. Purtell to serve as advisory counsel in this case,” says Purtell's motion to withdraw from the case. “It does not benefit either side to build errors into the record that may result in another trial in the future, with all the stress and great expense involved.”

According to his motion, he was relying on Hayes Gable's resources to work on the case.  Without Mr. Gable, he lacks tthe resources to investigate, research and prepare the case.

“I have no staff and no resources available to me to produce the paper products that proper advisory work would have to include,” Mr. Gable's motion said. “I do not have the resources to transfer the electronic files in this case to my possession or to access them, as will be required.”

Furthermore, “Based on the nature of the charges and the complexity of this case, Mr. Topete will need the assistance of an advisory counsel with more resources than I currently have available to me, acting alone without Mr. Gable.”

On Monday, Judge Richardson heard but did not rule on a motion for Mr. Purtell to be relieved of his contractual obligations to the county and Mr. Topete.

In addition to Mr. Purtell's motion, which is opposed by DA Jeff Reisig and his Chief Deputy Garrett Hamilton, Mr. Topete had a handwritten motion for a continuance of the trial scheduled for next week.  Already that will be delayed, it seems, as Judge Richardson will not return until next week with a ruling on the issue of Mr. Purtell's role. 

Mr. Topete complained that he was not allowed access to copy machines and other equipment from the Sacramento Sheriff's Department.  As a result, he was only able to deliver one handwritten copy of his motion on Monday.  DA Reisig vowed to get that matter resolved to avoid future delays, delays that he and his office are seeking to avoid in the case.

On Monday, Tom Purtell argued that he was comfortable in his previous role as co-counsel but he lacks the independent resources and staff to perform this new role without main counsel Hayes Gable.

Garrett Hamilton, speaking on behalf of the DA's office, said that if Mr. Purtell needs helps from the county in terms of resources, they can provide it, and they see no difference in this role from his previous role.

Judge Richardson added that there seemed to be an assumption of a greater responsibility in this role than may be true in reality.

From his perspective, Mr. Topete told the Judge that if Mr. Purtell does not believe he can do this job, then maybe he should be removed if he can't do it effectively.

Mr. Hamilton called this a smoke-and-mirrors argument, questioning what Mr. Gable had that Mr. Purtell did not.  He said that the investigator has already produced a work-product and if there is anything else that Mr. Purtell needs from the county, he should get it.

After a lengthy break, they resumed looking at the county's contract with Mr. Purtell, who described the contract as "dead as a dog" as soon as Mr. Gable was relieved of duties.  "This agreement with the county is a dead dog. We have to sign a new one," he told the court

Mr. Hamilton disputed this notion and pointed to language in the contract that suggests that "material" adjustments could be made to the agreement.  Mr. Hamilton argued that it is that which applies to the current situation, rather than a void contract based on the Faretta Motion.

Mr. Purtell responded by restating that at the moment of the Faretta Motion, when he was no longer the attorney of record along with Mr. Gable , the contractual agreement ceased to be. He said that the current appointment of him as advisory counsel is like "a new creature is being created."

The county representative, who was brought in by Hamilton, said that the county stands ready to follow the direction of the court, whether the arrangement be deemed a contract modification or a re-appointment of defense counsel.

In a somewhat amusing moment prior to the break, Judge Richardson had conflict council J. Toney brought into the courtroom.  Upon arrival Mr. Toney, puzzled, stated to the court, "I didn't think I had anything in here till 10 o'clock."  Judge Richardson directed him to chambers.  Little did Mr. Toney realize what he was about to get himself into.

When the hearing resumed, Mr. Toney was asked for comments on the various motions as all other parties had done. He said that the court has not even fully read Mr. Topete's continuance motion. He said "I can't advise the court or help with the case proceedings until the continuance motion is resolved."

The court noted that the motion was handwritten by Mr. Topete and only one copy of it existed, since he was denied access to a copy machine.  Since the normal procedure is for motions copies of motions to be provided to all parties prior to a hearing, the court could not adequately address the motion at that hearing.  Mr. Topete mentioned a Lieutenant Vaughn in Sacramento, who he said had told him that by court order Mr Topete would hand deliver any paperwork to the court at the time he had a hearing.  Mr. Topete asked the court if that was in fact the correct procedure - and was asking, in essence, whether the court had indeed made any such order.  Judge Richardson responded that the court will not advise Mr. Topete, that he should speak with his legal adviser on the matter.

Mr. Topete seemed a little frustrated and said that he understands that the court cannot advise him. He asked again if the only way for him to provide written motions and paperwork to the court was to bring them with him to scheduled hearings. Again Judge Richardson responded by saying that the court cannot advise the defendant on any matters.

Mr. Purtell rose and stated that Mr. Topete was, in fact, not being allowed to copy any documents and was being told be Sacramento County officials to hand deliver paperwork to the court on the very day of his hearing. The court stated that there are rules governing the access that pro per inmates are allowed to witnesses and to the hours spent in the law library, and so on, and that it would "behoove" all involved to conduct a review of all of that "in light of the questions raised by Mr. Topete."

He told Mr. Topete that there would have to be a way that paperwork from him could be served to the DA and the court in the proper manner, before the day of a hearing so that all parties were not handed papers for the first time at a hearing. DA Reisig stood and stated that he would work with  Sacramento County and look in to the matter and the level of facilities that are provided to Mr. Topete.

At the end of the hearing on Monday, Mr. Purtell asked for a clarification of his current standing. The court said that the Faretta Motion applied only to Mr. Gable and at this point Mr. Purtell remained, in a sense, legal counsel for Mr. Topete, but that since the court had appointed him as advisory counsel, he was "sort of that" as well.

To that Mr. Purtell asked if he understood correctly that he was not legal counsel and not  advisory counsel, "but something in between?" The court responded by saying that the court appointed him advisory counsel and would decide on the matter the following week.

On Monday, Judge Richardson will rule on Mr. Purtell's motion to withdraw as well as the motion for a continuance.  At this point, it seems highly doubtful that the trial can go on as scheduled next week.  Mr. Topete has legitimate concerns about the lack of ability to get information and about Sacramento County's Sheriff's Department putting up hurdles in the way of his ability to defend himself.

If he is granted the continuance, this would be the fifth such postponement since his arrest in June of 2008.

---David M. Greenwald reporting

The proposed changes are prompted by members who are not able to access the front entrance of their church because they cannot get in and out of the front door.  This includes a number of elderly parishioners whose mobility is limited and other members who are also wheelchair-bound.  In addition, the church wishes to increase the size of the front patio to enable the reverend to stand away from the door and greet the congregants.  The access ramp would land on the new patio.

The proposed changes, requesting approval of a new accessible ramp, and extension of the existing concrete landing at the main entrance to the sanctuary on C Street, were rejected by the Historic Resources Management Commission on May 17, 2010 by a vote 4 to 3. The vote was consistent at that point with staff recommendation, based on the finding that a viable and ADA-compliant access exists on the property.

However, according to the staff report, after further discussion with staff, the applicant revised the proposal to reflect a reduced-size option. The HRMC was presented the revised proposal on July 19, 2010. It was denied by a vote of 4 to 2.

According to the staff report, "In denying the project both times, the Commission majority stated that the necessary findings to approve the project could not be made based on the responsibilities and stated charges of the Commission under City ordinances and regulations."

The staff report notes that the HMRC acted appropriately and within their purview.  "The technical grounds cited by the HRMC majority for the denial action are appropriate and in keeping with the ordinances, guidance and regulations under which it operates, and are consistent with similar decisions on other City Landmarks."

However,  staff notes that the council has "broader authority and purview." 

"Staff believes that the City Council may consider the applicant’s desire to provide additional access to all members at the front entrance, and a gathering place for socialization as legitimate grounds to deem the proposal appropriate and approvable," the report continues.

While staff had previously recommended a scaled-down version of the project, they now recommend approval of the original proposal, based on several reasons.

First, "The Commission majority’s position that, had there not been a viable secondary access, the proposed project could be approved, leads staff to believe that approval of the proposal will not change the Landmark status of the property. Hence staff has recommended a condition requiring that any future alterations to the property would have to undergo careful evaluation of the cumulative changes."

Second, "The applicant’s stated reasons for the proposal are reasonable and compelling, which are: 1) to provide equal access (ADA access) to the main entrance of the sanctuary, and 2) to provide a gathering space for events and after services socialization. While staff agrees with the HRMC that its charges do not permit it to support and approve the proposal, the City Council has a broader purview."

Third, "The consensus of the Commission is that if the City Council is to hear the appeal, the applicant should request  the original proposal."

Those who have followed this site over the years, know that I have been a very strong supporter of maintaining historic buildings in this community.  We simply cannot replace their value to our community, which has already leveled and altered so many of its historic treasures.  As such, in the past I have strongly opposed changes to the Anderson Bank Building, the changes to the Tank House and the demolition of historic buildings in the B St visioning plan, among others.

However, in August we also celebrated the 20th anniversary of the passage of the ADA.  The lesson that we learned in that celebration is the progress that disabled people have made in having full accommodations and access to be able to live as  full a life as possible.  From that standpoint, it makes sense to grant people access through the front of their place of worship.  And while that may alter some portions of the building, it will leave the larger historic building intact but make it accessible and thus usable to all.

Staff has done due diligence on this project.  The HMRC has done their job as well, which in part is to evaluate the project and determine how it fits within our historic preservation laws.  They have applied those laws to this building and this project to the best of their ability.

However, I agree fully with staff that the council has a much broader purview.  In this case, their purview is to attempt to preserve as much of the historic features that they can while at the same time adapting the building to modern usage and accommodating people who have physical limitations so they can have full use of their place of worship.

I fully expect that Davis City Council and the city of Davis, who participated in and sponsored the ADA 20th anniversary celebration in early August, to vote to expand access of the Davis Community Church so that each member can fully enjoy its use.

---David M. Greenwald reporting

Somehow, the bail in this case got erroneously set at $1 million dollars.

Attorney David Dratman appeared as a friend of the court, initially not representing anyone officially.  Deputy DA Ryan Couzens, attempted to argue at this point that the $1 million bail written on the defendant's paperwork at the jail was not a mistake, and that it should be upheld.

Judge Janine Beronio attempted to figure out how the bail got set for a $1 million when the schedule was $100,000.  Turns out it was a mistake, and she ordered it corrected.  However, Mr. Couzens tried to argue that Judge Beronio had no authority to correct the mistake.

Mr. Dratman had to pull out transcripts and penal codes to argue that she could change it to the correct bail schedule.  Judge Beronio got angry with Mr. Couzens and argued that she could indeed correct the mistake.

At this point Mr. Couzens went further into his bag of tricks and asked for a 1275 hold, based upon the amount of marijuana that had been involved in the transaction.  A 1275 hold is a means by which the prosecutor can put a hold on the acceptance of bail until it can be shown that the bail was not feloniously obtained.  This is an improvement on old laws, and the burden is now on the prosecutor to establish probable cause that some portion of the bail was feloniously obtained before a magistrate can place a hold on a person's release on bail.

The burden is now very high in order to obtain such a hold.  In this case, Mr. Dratman objected, arguing that there was no basis for it.  After discussion, Judge Beronio denied the 1275 hold.

That is when things got even more interesting.  When the defendants showed up in court the following Thursday afternoon, Judge Beronio disclosed that there was an affidavit in the file and an order signed by Judge Basha that had imposed a 1275 hold.  Someone from the DA's office, apparently not a lawyer, had filed a request with Judge Basha without mentioning Judge Beronio's denial of the 1275 hold.

When Judge Basha geot word of what happened, he became very angry, believing that someone had attempted an end-run.  There are a lot of theories as to what happened.  One is that the prosecutor simply tried an end-run around Judge Beronio's ruling by filing the motion with Judge Basha. 

What happened officially is that YONET (Yolo Narcotics Enforcement Team) went to Judge Basha and asked for a 1275 hold on their own.  They even put an officer on the stand testifying that that is what happened.

Defense Attorney David Dratman would not comment on the situation to the Vanguard.  However, there seems a good deal of skepticism as to whether YONET would involve themselves in this way and why would they go to Judge Basha, who presides over family law court?  The entire incident is bizarre.

Presiding Judge Rosenberg got involved at this point, and struck the 1275 affidavit to remove the hold.  Judge Beronio then released all of the defendants on supervised OR (own recognizance).

The next hearing in this case is schedule for September 27.

This case has already had a number of strange machinations.  The fact that it would be ending up in state court is strange.  The mistake on the bail schedule adds to the problem.  The DA's office is always trying to keep people in custody, so that part is not that strange, but how Judge Basha, who presides over  family law court, would get involved is very bizarre.

Would YONET really have filed a 1275 motion to a Judge that was not involved in this case, on their own, without any direction from the DA's office?  While I would say it bears investigation, that is not likely to occur.

Once Judge Rosenberg, the presiding judge of the courts, took over the matter, he handled it almost entirely in chambers.  Once they got the defendants released on supervised OR, the attorneys involved no longer had an interest in making waves over the matter.

The bottom line is that this case is worth watching for a number of reasons.  Why Yolo County is wasting scarce resources on a case that is lawful under California law is anyone's guess.  This is another example of why the public ought to be skeptical when the DA's office and law enforcement in this county cries poverty.

---David M. Greenwald reporting