Turns out the Summerset Village legal saga at City Hall isn’t over. It’s one of those left-hand-doesn’t-know-what-the-right-hand-is-doing things.
The lingering legal issue revolves around 1,324 code enforcement citations at the big Summerset apartment complex in Central Fresno.
We all know the backstory. Summerset in November 2015 went days without natural gas service. Residents had no safe, convenient way to heat water or stay warm. No one told City Hall about the trouble until it had turned into a crisis.
City code inspectors quickly slapped Summerset owner Chris Henry with 1,450 alleged code violations at the 220-unit complex. Each citation carried a $200 fine — $290,000 total. All of the citations carried extra weight because the violations were deemed to pose an immediate danger to the tenants’ health and safety.
Henry appealed in December 2015. The matter landed on the desk of Independent Administrative Hearing Officer Michael Flores, a former deputy city attorney. There was a lot of give-and-take involving each side’s legal team and Flores. The public hearing was held Sept. 26 at City Hall.
Flores publicly released his 40-page decision on Oct. 31. It was a complicated piece of reading. Reporters and city officials interpreted its significance in different ways.
But for our purposes the key fact is this: Flores rendered a decision on only 126 of the 1,450 alleged violations.
Flores said 60 of the 126 were violations that posed an immediate danger to the health of Summerset’s tenants. Henry had to be taught a lesson about maintaining his property. Each of the 60 deserved a $200 fine.
Flores said 66 of the 126 violations did not pose an immediate danger to the health of Summerset’s tenants. Henry had deserved a period of time to fix these violations back in late 2015. If Henry hadn’t fixed them by the deadline, then the city would be justified in fining him.
Why did Flores pass judgment on just 126 of the 1,450 alleged violations? Because lawyers for Henry and City Hall got together earlier in the year to mutually reduce the scope of the appeal. They did so with Flores’ blessing.
The lawyers went over each of the 1,450 citations. On some, both sides agreed that Henry had deserved a period of time (say, 30 days) to fix the problem. On others, both sides agreed that the violation posed an immediate danger to the tenants and deserved a prompt $200 fine.
In the end, lawyers for the two sides agreed that 1,324 violations fell into one of these two categories. That left 126 contested violations. These 126 landed on Flores’ desk in the form of an appeal.
By my calculation based on city documents, both sides agreed that 812 of the 1,324 citations deserved $200 fines and 512 deserved no fines.
In other words, the lawyers for the two sides decided on their own to waive the fines for 512 code violations — $102,400 total.
Flores in his decision made it clear that the task before him was to judge the 126 contested citations. He made it clear that he had nothing to do with the fate of the 1,324 citations that Henry/City Hall had voluntarily withdrawn from his consideration.
Fine and dandy.
But I recently got to thinking about those 1,324 citations. Keep in mind that part of Henry’s argument at the September hearing (presented by his attorney, Stephanie Hamilton Borchers) was that city officials early in the crisis had orally promised to waive part or all of the fines if Henry got the violations fixed in a hurry. City Hall, on the other hand, argued that only the City Council had authority to waive the fines – something the council hadn’t done.
I thought: Where’s the contract authorizing Henry and City Hall to unilaterally waive $102,400 in code fines? When did this contract go to the council? What was the vote?
I was pretty sure of the answers to the last two questions. I hadn’t seen such a contract go to the council in the past two months.
But, I thought, surely such a legal document is sitting on someone’s desk at City Hall. So, earlier this week, I asked city Communications Director Mark Standriff if I could review that document. Standriff said he’d get back to me the next day.
He kept his promise. Standriff said a report would soon be written about the fate of those 1,324 citations. He said the report would go to the City Council in January. He said Flores would write the report.
“Have you told Flores?” I asked.
It was a fair question because Flores and I had already discussed the apparent lack of an official document explaining what happened to the 1,324 violations.
Standriff said he didn’t know.
Flores and I crossed paths later that day. I told him about the report he is supposed to produce for the City Council by January.
“That’s news to me,” Flores said.
All this may be a tempest in a teapot. Or it could throw another twist into the Summerset drama. Flores isn’t the final word on appeals. Property owners can take their case to Superior Court, where they would ask a judge to kick the conflict back to Flores with instructions to reconsider a portion or all of the original appeal.
There’s scuttlebutt at City Hall that Henry is thinking about doing exactly that.
Could the mixed signals over how to officially document the ultimate fate of the 1,324 citations be a factor in Henry’s thinking? Borchers might say to a judge: “Your Honor, look at how messed up things are over there. That gives you a sense of how my client was treated by the Code Enforcement Division and the Administration. Let’s start over.”
On top of that, I wonder why city officials are asking Flores to write a special report about the 1,324 code citations that were removed from his jurisdiction. I always figured he could pass judgment only on citations that remained on his desk.
Finally, I love how City Hall operates.
City officials, by their own admission, did make tepid promises to Henry to possibly waive fines. Then city officials said they couldn’t do that; only the City Council could waive fines. Then city officials sat down with the Henry camp and waived more than $100,000 in fines. Then city officials decide to tie up loose ends (after being pestered by a reporter) by having the hearing officer with no apparent jurisdiction in the matter say the waived fines are A-OK.
But they forget to clue in the hearing officer!
So, I told Flores. I deserve a fee.
Photo: John Walker, The Fresno Bee
