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Then-Irvine City Council candidate Farrah Khan (center, without facial hair) with my OCVMP buddies Brian Chuchua, Peter Katz, Bill Cook, Louis Contreras. and other vets in 2016.
Irvine Council Meeting Starts at 4:00! Be There by 5:00!
(1) Farrah’s Fateful Decision
Irvine Councilmember Farrah Khan will cast the deciding vote today on whether to adopt a voting scheme that might give her cover if she eventually casts a contingent vote that will elect Republican Carrie O’Malley to the Irvine Council, giving Republicans a 3-2 Council majority (and consigning her to the minority on almost anything controversial, such as Irvine joining lawsuits to oppose immigrants rights.)
From all appearances, she will likely vote for the scam part of the scheme, and then unless she is very careful she will then spend the rest of her life explaining to people that she voted for a Democrat first but the just ranked O’Malley as a candidate she could accept — under a rule would convert that act to O’Malley’s appointment.
She will presumably explain that she had to list a Republican candidate as acceptable because that was the only way that the Council could appoint someone and avoid a special election. As many have noted, she’s wrong in that. The ordinance approved several months ago requires that the Council try to make an appointment, not that they succeed.
If Farrah and her apparently hated fellow Democrat Melissa Fox both agree that they will not vote for a Republican, while Republicans Christina Shea and Anthony Kuo both agree that they will not vote for a Democrat, then (putting aside the possibility of a third-party or no-party compromise choice) then they will reach an impasse.
This is not “bad faith.” It simply reflects that “good faith negotiation” does not mean that the Councilmembers are playing a game of chicken and one of them must eventually give in. Neither side has to give in; in that case it will go to the voters. That’s a perfectly normal and acceptable result. The voting system scam simply engineers an end run around it.
If there were TEN candidates who could be listed on each Councilmembers ballot and the Republicans listed ten Republicans while Fox listed ten Democrats and Farrah listed nine Democrats and then one Republican, then you have the first nine candidates thrown out in a series of nine deadlocked votes and the tenth candidate — the Republican “reluctantly” supported by Farrah — wins.
Farrah thinks that the Democratic Party of Orange County will be fooled and not refuse to ever support her again. She’s wrong. I was at the DPOC meeting last night. When the matter of Irvine’s election came up — with Chair Ada Briceño delicately earning people to express their desire for an election to “both your Council representatives” — Fox (who wants to see an election) and Farrah (who doesn’t want to see Fox’s protégé Lauren Johnson Norris compete and win.) People looked like they were watching a slow-motion train wreck.
The purpose of this system is to create a situation where — unless Farrah and Melissa only list Democrats as acceptable and are never in the Council chambers with both Republicans when the other Democrat is absent (which would allow them to go to the appointment right there) — Farrah’s vote that has the effect of creating a Republican City Council majority look accidental, or like a forced move. No one but Farrah’s temporary supporters in the Agranista faction is going to buy that. The worse (from a Democratic perspective) the Irvine Council majority’s votes get, likely with Farrah in the minority much of the time, the more resentment and contempt will well up against Farrah.
(2) The Agenda Item
Here in very dark red, is the City Staff “Executive Summary” for Item 4.5.
EXECUTIVE SUMMARY
At its April 9, 2019 meeting, the City Council approved the form and content of applications to fill the City Council seat vacated by former Councilmember Shea when she ascended to the Office of Mayor. The application materials include an application form, questionnaire, 200-word essay, and a FPPC Form 700 Statement of Economic Interests. The City Council directed that completed application forms be submitted to the City Clerk no later than May 3, 2019, by 5 p.m.
However, the City Council left undecided what processes, if any, would be used to (i) determine how applicants would be selected to participate in a City Council interview process during an open public meeting on May 14, 2019, (ii) choose the order of, and process for, the May 14, 2019 interviews (iii) narrow the field of candidates to a list of “finalists” after the interview process, and (iv) set the order in which finalists will be voted on for potential appointment to the City Council. For each of these four steps, this staff report provides options and alternatives that the City Council may choose from.
It must be emphasized that these are options and alternatives only. The City Council retains the discretion to choose one or more of the processes presented, choose another process suggested by a Councilmember or a member of the public, or choose no structured process whatsoever.
It must also be emphasized that – whatever process is used to narrow the field of candidates – the ultimate decision whether to appoint a candidate to the City Council will
require a vote of a majority of the members of the City Council (i.e., a minimum of three affirmative votes). As discussed below, a ranking process may be used to prioritize potential City Council candidates, but staff does not propose that any candidate be selected to fill the vacancy without first receiving three affirmative votes.COMMISSION/BOARD/COMMITTEE RECOMMENDATION
Not applicable.
ANALYSIS
At its April 9, 2019 meeting, the City Council identified the required form and elements of applications to fill the vacant City Council seat. The City Council also set May 3, 2019, by 5:00 p.m., as the deadline by which applications must be submitted to the City Clerk.
As to the process to be used following the submittal of applications, the City Council deferred its decision until the meeting of April 23, 2019. However, the City Council reiterated the need for a clear, legal, fair, and transparent selection process. This staff report was assembled to assist the City Council in achieving those goals.
To that end, City staff divided the remainder of the selection process into the following five steps:
1. List of Interviewees: Determine which candidates will get to interview before the full City Council.
2. Order of Interviews: Determine the order and process for the candidate interviews.
3. List of Finalists: Determine which candidates, from among those interviewed, will be among the “finalists” considered by the City Council to fill the vacancy.
4. Order of Consideration of Finalists: Determine the order in which the “finalists” will be considered by the City Council.
5. Vote on Appointment to Fill Vacancy: Vote on the finalists, until either a candidate receives a majority of affirmative votes from the City Council (or until it is determined that no candidate will receive a majority of affirmative votes, in which case, after June 3, 2019, the matter will be set for a special election).
Options and alternatives for the first four steps in this process are described below. As to the fifth step, staff’s recommendation is that no person be appointed to fill the City Council vacancy unless that person first receives an affirmative vote of a majority of the City Council.
Step I – Choosing Those That Will Receive Interviews
After the May 3, 2019 application deadline, the City Clerk will forward all applications to each member of the City Council for her/his review and consideration. City staff suggests that each Councilmember then be allowed to submit her/his top candidates to the City Clerk by noon on May 8, 2019. The number of top candidates to be submitted is a matter of City Council discretion, but staff suggests that between three and five suggested interviewees per Councilmember is appropriate.
If there is no overlap in the interviewees suggested by City Councilmembers, three interviewees per Councilmember would yield a maximum of 12 candidates participating in the interview process. If five interviewees are proposed per Councilmember, the maximum number of interviews would be 20.
If the City Council is concerned that 12 or 20 candidates is too many to interview, then it could choose a procedure to further narrow the list of interviewees. For example, the City Council could agree that (i) the top 2 candidates for each City Councilmember would be guaranteed an interview, and (ii) each additional candidate that was selected by 2 or more City Councilmembers would also receive an interview. As another suggestion, the City Council could require that each interview candidate be ranked by the selecting Councilmember (e.g., 3 points for top selection, 2 points for second selection, 1 point for third selection). The points would be tabulated and the top 10 candidates (or other maximum number selected by the City Council), plus ties, would receive an interview. These suggestions are- offered in an effort to arrive at a list of interviewees that provides a robust set of options for the City Council, does not prematurely eliminate any Councilmembers most-favored candidate, and allow the interview process to be meaningful while still concluding in a reasonable period of time.
Step II – Determining the Order of, and Process for, the Interviews
After the interviewees are selected, the City Clerk will invite the applicants to attend a special meeting to be held on Tuesday, May 14 from 12 to 4 p.m. The special meeting agenda will be prepared and posted on Thursday, May 9, 2019, and will identify all of the applicants that have been asked to move forward in the selection process.
The City Council has the discretion to choose the order in which the applicants will make their presentations. By choosing and implementing this process before the special meeting agenda is posted, interviewees and members of the public will have a clearer understanding of the likely timeframe for their interviews.
Common options for City Council consideration include:
1. Random Selection: All applicants’ names are placed in a basket and the City Clerk randomly selects the names, which becomes the order in which the interviews will be conducted.
2. Alphabetical Order: The applicant interviews could be scheduled in alphabetical order.
In addition to the order of the interviews, the process for the interviews is also a matter for City Council consideration. It is typical to allow a short opening statement, e.g., three minutes. Following the opening statement, the City Council could conduct a round of questioning, in which each City Councilmember would be permitted to ask each interviewee questions for a fixed period of time, e.g., three minutes.
If these timelines were used, each candidate interview would take less than 20 minutes. That would allow for a total of 12 interviews, plus potentially some time for City Council deliberations, over the allotted four hour period.
Step III – Determining the Field of Finalists
If time permits, at the conclusion of the interview process, the City Council could select a list of “finalists” that would be put to a vote of the City Council for appointment to fill the vacancy. This process would be used to narrow the field so that further City Council deliberation focuses only on the top candidates. It is important to emphasize, however, that this step is purely optional – it is within the City Council’s discretion to move directly from the interview process to nominating and voting on Councilmembers’ preferred candidates. Likewise, it is within the City Council’s discretion to consider all of the interviewees for appointment to the City Council without first narrowing the field.
If a more structured approach is preferred, however, any of the following three processes could be used:
1. Ranking: Each Councilmember could rank her/his top three to five interviewees, and a point total could be assigned to each candidate (3 for top ranking, 2 for second ranking, and 1 for third ranking). After the points are tallied, the Council could agree that the top 3 point totals (or another number chosen by the City Council), plus ties, would be individually considered and voted on for appointment to fill the vacancy.
2. Guaranteed Council Nominations: Each Councilmember could nominate her/his top one or two candidates, and that would constitute the list of finalists.
3 Hybrid: Each Councilmember could rank her/his top three candidates. Then (1) each Councilmember top choice would be guaranteed a nomination, and (ii) the two candidates (or another number chosen by the Council) receiving the next highest point totals would also be guaranteed a “finalist” position.
Step IV – Determining the Order of Consideration of the Finalists
The final issue to be resolved before beginning the voting process is the determination of the order in which each candidate will be considered. There are multiple options for addressing this issue:
1. Consensus Candidate: If, through the City Council’s deliberation process a consensus candidate is identified, a Councilmember could simply move that the candidate be appointed to fill the vacancy, and if that person receives a majority vote, the process can conclude.
2. Vote By Name: As a first step in the voting process, each Councilmember could identify their top candidate by name. If three or more Council Members identify the same candidate, that person can be appointed to fill the vacancy.
3. Ranking: If point rankings are used to assist in determining the list of finalists, then those same rankings can be used to determine the order of candidate consideration. The highest point recipient would be considered first by the City Council. If that individual does not receive a majority vote, then the next highest point recipient would be considered. That process would continue until a candidate received a majority vote or the list of candidates is exhausted.
4. Random Selection: The City Council’s consideration of the finalists can be ordered through a random selection process.
5. Alphabetical Selection Process: The City Council’s consideration of the finalists can be ordered alphabetically.
Step V – The Final Vote
As noted, any appointment of any candidate for City Council will require affirmative votes from a majority of the members of the City Council. The steps outlined above are options, alternatives, and suggestions for narrowing the field of candidates, not for modifying the fundamental requirement for a majority vote to complete the appointment process.
If no candidate receives a majority vote through this process, (including continuing deliberations to the May 28, 2019 City Council meeting, if necessary), then after June 3, 2019, the matter will be referred by the City Council to a special election.
CONCLUSION
The ultimate process to be used in narrowing the field of City Council candidates is within the sound discretion of the City Council. The steps, processes, and alternatives outlined above are provided to assist the City Council in considering various options. However, the decision which, if any, of those processes or alternatives to utilize is a matter for City Council policy determination.
(3) Analysis Part 1: Avoid “Rank Points” Mischief
In reading through this, it is clear that there are opportunities for mischief at almost every step: choosing who would receive interviews (step 1), determining the field of finalists (step 3), and the horribly misnamed “determining the order of consideration of finalists” (step 4), which includes the possibility of going directly to a vote on one or more. In each case, the opportunity for mischief arises if they adopt a “ranked by points” voting system, in which the Republicans coordinate their selections and the Democrats don’t — because Farrah is reportedly refusing to meet with Melissa, even with the presence of Ada Briceño as a mediator. One couple conceivably see no one but Republicans as finalists, and if Farrah decides to vote for any of them (while Fox would presumably refuse), that’s the end of the ball game. She can claim that her hand was forced all she wants, but that we be because she agreed to rules that allowed it to be forced.
What isn’t clear is whether Farrah (1) wants to appoint O’Malley, (2) wants to appoint a Democrat if it’s someone other than Johnson-Norris, or (3) wants to appoint a Democrat even if (as seems certain) the one with the greatest support from Fox would be Johnson-Norris. If Farrah is not willing to support a Republican but is willing to support a Democrat other than Johnson-Norris, then there’s no real problem: Melissa, despite her preference, would probably agree to that — especially as it would likely simply generate a deadlock anyway. It’s straying from that partisan path by casting even one meager voter for a Republican while they refuse to cast a vote for any Democrat that threatens Farrah’s career.
Any system that doesn’t allow each Councilmember’s top choice to become a finalist means that Johnson-Norris probably will not become one — so the main thing to watch for is whether Farrah blocks that. Step III Option 1 is the dangerous one: if there are five finalists, the Republicans can ensure that each has six points. (They can arrange this in advance. Two people devising a strategy doesn’t violate the Brown Act unless one brings in a third.)
For example: for those five Republican Candidates, Shea would rank them “1-2-3-4-5” while Kuo ranks them “5-4-3-2-1”. Unless Farrah and Melissa agree on a candidate, and rank them highly enough so that they get 7 points, Democrats get shut out. Melissa would presumably give Johnson-Norris 5 points; if Farrah gave her 2, she’d be a finalist; if 1, she’d be subject to a tie-breaker, and if 0 then she’d be eliminated.
There are other possibilities for mischief, but this is the main one.
If Farrah would simply say that she will not, under any circumstances, provide the third vote for a Republican, then that would mean that this procedural vote didn’t matter, because either one of the Republicans (ideally Kuo, who came up with the stupid rule that prevents immediately moving to a call for a special election) would give it or the council could declare a stalemate.
Again: a stalemate occurring — even at the outset — because of the declared intentions of each party to a negotiation to abide by their “best and final offer” create an unavoidable is NOT an act of “bad faith,” especially when they did not enter those negotiations willingly. If Farrah makes such a pronouncement and sticks with it, then DPOC should be fine with her actions — even if she prevents Johnson-Norris from becoming a finalist. NOT declaring that “best-and-final offer” when one is actually be guided by it IS, by contrast, an act of bad faith.
Farrah has already showed that she can be outmaneuvered by the Republicans on the Council when she voted to make Anthony Kuo Chair-Pro-Tem when Melissa Fox had seniority and would have become the de facto Chair Pro-Tem in the absence of an appointment. If she doesn’t state her position up front today, and hold to it firmly — including refusing to cast a third vote for a Republican for Chair even if no Democrat is a finalist — then she’ll be held responsible for the consequences, and no amount of explaining it away will acquit her.
(4) Analysis Part 2: Make Sure that “Majority” Means Three
The Staff Report says that it recommends in Step Five that three votes be required for appointment. That’s a good rule. Unfortunately, that’s not what Step Five actually says — and it should be clarified and possibly fixed.
It says a “majority.” And if one person is absent, then a quorum of three remains present, and the majority of three is just two. That means that if Farrah or Melissa is absent from an entire meeting — or even for a trip to the bathroom or an emergency trip to tend to a family member in an emergency room — then the remaining two Republicans on the Council could declare a vacancy.
(This is an asymmetric problem, because if either Shea or Kuo became absent from the meeting, the other one would be chair, and could simply gavel the meeting to a close or declare a recess and just not come back. This wouldn’t have been a problem if Farrah hadn’t voted to make Kuo the Chair Pro Tem; in that case Melissa would have been Chair in Shea’s absence and could have prevented such a move.)
So, the Council really ought to say, in its rules, that a majority of the Council seats, rather than of members present and voting, is required to appoint. And you can tell them so in public comments.
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