After six weeks of trying to get answers about Escondido Assistant Manager Jay Petrek’s appointment to the San Marcos City Council, Escondido Councilwoman Olga Diaz sent answers to The Grapevine on Thursday, Feb. 28. That leaves Escondido Mayor Paul McNamara, Deputy Mayor Consuelo Martinez and council members John Masson and Michael Morasco to go.
Thank you. As the Washington Post states on its masthead: “Democracy Dies in the Darkness.” The Petrek situation is a national anomaly.
San Marcos City council members publicly interviewed 23 candidates for 2 1/2 hours on Jan. 15 for a 2-year council appointment to an open council seat.
It took Mayor Rebecca Jones, Vice-Mayor Sharon Jenkins and council members Randy Walton and Maria Nunez about five minutes, seemingly, to rubber-stamp Escondido Assistant City Manager Jay Petrek as their new colleague.
Say what one will about the San Marcos City council members’ selection of Petrek as their new colleague, San Marcos leaders didn’t duck questions about the selection process, answering them in a timely fashion.
Escondido’s mayor and council members, not so much; even when given a 5-day window to address Grapevine questions about Petrek’s seemingly conflicting roles representing — with all due respect to the 1960’s Wrigley Doublemint Gum advertisements — two, two cities at once.
“I am so honored to be a part of this,” Petrek said after being sworn into his new job that pays just over $11,000 annually for what Jones, and a supplemental candidate questionnaire, said was over 36/40 hours of work weekly. However, past accounting including additional benefits like a $3,600 car allowance, health insurance and pension contributions typically added $14,000 to $28,000 annually to compensation, depending on the individual.
Petrek earns at least $164,390 annually at his Escondido post. Employees also get medical coverage and other benefits.
Desperately seeking context
The Grapevine asked fellow members of LION (Local Independent Online News publishers) who represent the leading online non-corporate media sites in the nation if anybody ever heard of such a situation with double-dipping city officials with government jobs. Only ONE ever had. It was controversial, according to Marc Levy, publisher of Cambridge Day.
“A Somerville, Massachusetts, city councilor (one L) is the legislative aide for a Cambridge, Massachusetts, city councillor (two Ls),” Levy said. “Allowed, but unusual enough that I write about it.”
Ken Martin, founder and editor of The Austin (Texas) Bulldog added: “In Texas a state employee can hold elective office but the state constitution bars payment of a salary. Can only be paid to reimburse actual expenses.”
The California Fair Political Practices Commission did not come up with any similar situations in the state. However, a commission spokesman cited this statute:“Incompatible Offices. Gov. Code Section 1099 codifies the common law prohibition against the holding of “incompatible offices.” This doctrine restricts the ability of public officials to hold two different public offices simultaneously if the offices have overlapping and conflicting public duties. For this section to apply, each position must be a “public office.” (Gov. Code Section 1099(c).)
Pursuant to Section 1099, a person may not simultaneously hold two public offices if: either of the offices exercises a supervisory, auditing, or removal power over the other office or body, there is a significant clash of duties or loyalties between the offices, or there are public policy considerations that make it improper. The consequence of holding an incompatible office is that the person is “deemed to have forfeited the first office upon acceding to the second.” (Gov. Code Section 1099(b).) In addition, the California Constitution has provisions addressing the holding of two government positions.”
To be sure, many council members, maybe even most of them, in mid-sized to small cities have their own businesses or full-time jobs outside of government. Even mayors of smaller towns. Working for two cities at once, however, is rare.
Asking the questions
This is what the Grapevine sent around 5 p.m. Thursday, Jan. 17 to Escondido council members and mayor through the city website email pages and to each Facebook account:
“I’ve attached my Jan. 16 story about Jay Petrel (sic) being named a San Marcos councilman. He said he was advised before he applied it was OK to work for two cities at once by two Escondido city attorneys and the city manager.
1. What are your general thoughts about this?
2. SM Mayor Rebecca Jones, and the SM council candidate questionnaire said the SM council job required “over 36/40 hours” of work. Do you feel Petrek can work “over 36/40″ hours on SM duties and also work his Escondido job to the best benefit of your residents?
3. Did you know before Jan. 16 about Petrek’s SM application? Did he contact you before that about applying for the SM job? And if contacted, what did you tell him?
4. What do you feel about the possibilities Petrek will be asked to choose between loyalties should Escondido and San Marcos compete for any businesses, resources or otherwise competing interests between the two cities? Which city should he represent? What about recusals in either city?
5. Moving forward, your concerns or opinion about how he should represent himself in public about his dual roles, and whether he should keep dual compensations, for example, such items as car allowances,Â pension and other benefits?
Thanks in advance, and please send your answers to me at firstname.lastname@example.org I would like to finish this story asap, but no later than 5 p.m. Monday, Jan. 21, 2019.”
Getting some answers, the hard way
Escondido City Attorney Michael R. McGuinness on Jan. 22, 2019 said:
“Your email questions regarding Mr. Petrek were sent to me for a response.
1. To my knowledge, Mr. Petrek spoke with both myself and Jeff Epp, the City Manager and Mr. Petrek’s direct supervisor. He spoke with us before his submittal of his application for the appointment. He was advised that there was not a disqualifying conflict of interest provided he recuse himself from any San Marcos decisions which could affect the City of Escondido’s interests. He was further advised that his additional work should not interfere with his ongoing duties and responsibilities for the City of Escondido. He has assured us he will conform to these guidelines.
2. Mr. Petrek is an employee of the City of Escondido and does not hold a “public office” for this city. Thus, there is no incompatible office issue with his San Marcos appointment. See, Government Code § 1099(c).”
After that, city official silence.
Councilwoman Olga Diaz, who recently announced her candidacy for San Diego Board of Supervisors, today sent the following reply:
“Below are the best responses I can offer to your questions. Any detailed response about Mr. Petrek’s work in Escondido may be provided by City Manager Jeff Epp.Your questions:1. What are your general thoughts about this?Time will tell if there is any issue.2. SM Mayor Rebecca Jones, and the SM council candidate questionnaire said the SM council job required “over 36/40 hours” of work. Do you feel Petrek can work “over 36/40” hours on SM duties and also work his Escondido job to the best benefit of your residents?I’m not sure what the workload is for Mayor Jones and the San Marcos Council, they can probably answer that question better than I can. What I do know is that the Escondido City Council is structured to have a full-time Mayor and four part-time council people. Some weeks require extra work, some weeks are slow. It depends. Also, much of the work we do tends to be evening and weekend meetings. Time management is a valuable skill.3. Did you know before Jan. 16 about Petrek’s SM application? Did he contact you before that about applying for the SM job? And if contacted, what did you tell him?I was not aware of Mr. Petrek’s application to serve in San Marcos. I first became aware after he was selected.4. What do you feel about the possibilities Petrek will be asked to choose between loyalties should Escondido and San Marcos compete for any businesses, resources or otherwise competing interests between the two cities? Which city should he represent? What about recusals in either city?I am not aware of any existing conflicts. If one were to become apparent, I would have to evaluate the issue at that time. It is likely the City Manager would bring any concerns to our attention.5. Moving forward, your concerns or opinion about how he should represent himself in public about his dual roles, and whether he should keep dual compensations, for example, such items as car allowances,Â pension and other benefits?It is not uncommon for elected officials to hold alternative full-time jobs or to own businesses. Mr. Petrek reports to the Escondido City Manager and his time and productivity are monitored by Mr. Epp, not by the city council directly.