Irvine Vacancy: Farrah, Conned, Sleepwalks Towards a Cliff


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Can Democratic Irvine Councilmembers Melissa Fox and Farrah Khan cooperate to prevent installing a Republican City Council majority?  Or will Farrah be tricked into a vote unnecessarily creating one?  (Or does she not need to be tricked?)  And if it happens, and an era of Republican domination ensues, what will DPOC do?

SUMMARY: Irvine needs a new Council member after former Mayor Donald Wagner’s election to become a County Supervisor.  The Council is split 2-2 by party, so control of the Council is at issue just at the moment that Irvine’s non-partisan era is ending.

The two Democrats are split:  Melissa Fox wants to see her protege Lauren Johnson-Norris on the council, while Farrah Khan — who has long been at odds with Fox — seemingly would not.  Yet Khan’s voting for a Republican — Carrie O’Malley — would get her into trouble with Democrats.

Republicans apparently have a trick in mind that would get O’Malley onto the Council without Khan’s technically voting for her: a weird “points” system involving ranked preferences of candidates, which would allow Khan to cast a meaningless vote for a Democrat (even Lauren) as first choice but O’Malley as a second or third choice — which in the certain absence of any other votes for Lauren would allow O’Malley to win the seat with more “points.”

Farrah can prevent this by opposing the cockamamie “points system” being considered today, which is designed to give her cover by casting even a third-place vote for O’Malley.  If the point system in enacted, the only way to prevent O’Malley from winning the seat would be for Khan to refuse to cast a vote for anyone but a Democrat, in which case a special election would be held.  (The option of a special election would not be presented to the Council.)

Virtually everyone, from me to Dan Chmielewski, seems to recognize that a special election is the proper way to address a vote that may determine Irvine’s political future for the next decade.  The problem is that Farrah has apparently been snookered into thinking that the council MUST appoint a successor rather than allowing a tie vote to lead to a special election.

This means that she’s heading for a cliff.  (Some people think that she’s doing it willingly, out of spite for Melissa and Lauren, but I both hope and think that that’s not true.)  I think that she’s being conned.

Here’s what a “points system” would do: let’s say that the candidates are two Republicans (Carrie and Donny) and one Democrat (Lauren).  Melissa and Farrah vote for Lauren (who gets 6 point), Carrie (who gets 4) and Donny (who gets 2.)  The Republican Council members, Shea and Anthony Kuo, then vote for Carrie (who gets 6 points), then Donny (who gets 4) and then Lauren (who gets 2).  Carrie then wins with 10 points to 8 for Laurenand 6 for Donny.  (If Melissa and Farrah split their second-place votes, both Carrie and Donny have 3 votes from Democrats and the Republicans elect whichever one they wish.  There is no way that Lauren wins, nor is there a way to create a tie vote that leads to the special election.

There ARE WAYS AROUND THIS — but they would require cooperation and coordination between the two Democrats.  (They could agree, for example, to cast only a first-place vote and deny any points to Carrie or Donny.  If the Chair rules that out of order, they could both leave, denying the Council a quorum.)  But Farrah does not seem willing to cooperate: she seems to have swallowed a line that wording in the City Charter the council “shall” appoint a replacement means that she MUST support a procedure that avoids the possibility of a tie vote — even if it leads to a Republican appointment unless she and Melissa cooperate as well as Carrie and Kuo do (which is unlikely.)

Khan may hope that the DPOC would not be upset if she voted for Lauren with O’Malley as a second or third choice — as the Republicans might (falsely) claim is required of her.  If so, she’s fooling herself. Republicans will want Farrah’s seat too in 2022, and every extreme ideological vote — joining lawsuits against immigration like Huntington Beach, as an obvious example — tjat they take over the next 3-1/2 years will remind Democrats that Farrah placed us in the minority.

Virtually all Democrats except Farrah, on and off the Council, seem to want to try our chances in a special election: there’s no guarantee of victory there, but at least it’s a fair shot.  So is there any way to convince Farrah not to accept this loony voting system — and, if she rejects it, is there any proposed name that would create a 2-2 deadlock between that person and  O’Malley — and thus lead to a special election?

Mayor Christina Shea and City Staff have convinced Farrah Khan that she has no choice but to approve a voting proposal that would — unless Farrah and her estranged Democratic Council rival Melissa Fox suddenly start to cooperate perfectly — lead to two, four, or even more years of unrestrained and potentially unhinged Republican control over Irvine’s City Council …  and QUICKLY END FARRAH’S OWN USEFULNESS TO THE NEW COUNCIL MAJORITY.  It’s like watching a real-life horror movie where she’ll snap out of her trance only the moment after she steps off the cliff. Even Farrah’s critics don’t want to see her suffer this fate.

[Author’s Note: They say that one has no real friends in politics — if you want one, Harry Truman said, buy a dog — but the same may be true of enemies.  I’ve been pissed off with Farrah for half a year now, when she repaid my reluctant vote for a DPOC endorsement for her by casting the decisive vote to book me off the committee.  And yet today I find my trying to convince her not to commit political suicide, as much because I don’t want to see her suffer the protracted consequences as because of its impact on Irvine.  This is one of the worst political horror shows I’ve seen unfolding in real time, but the Republicans seem to have her hypnotized.  We’ll see if she snaps out of it in time. – GAD]

Farrah, Conned

I posted yesterday Irvine Councilmember Melissa Fox’s blog post from March 28 (now updated) regarding the need for a special election in Irvine to replace Supervisor Don Wagner.  The most critical part is this:

The Council is now evenly divided with two Democrats and two Republicans.  In other words, unless one of the Councilmembers votes for a candidate who is a member of the other party, the vacancy will be filled by the candidate chosen by the voters in a special election.

Residents have 30 days to file a petition signed by seven percent of Irvine’s registered voters to require an election regardless of what the council does.

Melissa’s not going to vote for a Republican candidate.  Neither Republican on the Council, newly promoted Mayor Christina Shea nor Anthony Kuo, are likely to vote for a Democrat with the council majority on the line.  So that bold-faced section that I’ve colored orange above clearly addresses the prospect that Farrah will support a Republican.

Specifically, the concern is that Farrah will support Carrie O’Malley, Chair of the City’s Transportation Commission (which is a bigger deal than it may seem in a city where the main concern of citizens over the years has generally been “traffic congestion”) and the third-highest vote-getter in the 2018 election.

I know that people have been exercised about this, but it did not seem likely to me that Farrah would vote for O’Malley.  It would be political suicide.  That’s because I didn’t really understand what the issue was about.  The Council meeting today isn’t about choosing a successor; it’s about rigging a system in which Farrah would in essence “accidentally” lead to O’Malley’s ascension to the City Council.  This became clearer when Melissa posted a comment to that post yesterday afternoon:

There is now a proposal to use an arbitrary ‘point proposal,’ under which “each Councilmember shall list three (3) applicants [candidates] in order of preference.” The candidates will be assigned the following point values: Top candidate 3 points, second candidate 2 points, and third candidate, 1 point.

Under this proposed procedure, the applicant receiving the most points will be appointed.

This proposed “point ” procedure:

(1) has never been used by the Irvine City Council to decide how to fill a council vacancy or to make any other appointment or decision;
(2) violates the most crucial principle of a representative democracy — that the people’s representatives are selected by majority rule.

Arbitrarily assigning points to 1st, 2nd, and 3rd choice applicants, and then saying the applicant with the “most points” wins, is simply a way to avoid majority rule. It undermines the basic legitimacy of Irvine’s government.

Now I get it.  Uh-oh.

Farrah states her understanding on her City Councilmember Facebook page:

I would like to update you on tomorrow’s council meeting, since there seems to be some confusion in the community. Please let me know if you have any questions.

1. Per our city’s election code, the council shall appoint a vacancy on the council and if there is no consensus on an appointment, then we move towards a special election.

2. The public has a right to petition a special election by gathering signatures prior to May 3rd.

3. Tomorrow night, council will lay out the procedure for the appointment process. This will allow those interested to apply. We are not appointing anyone tomorrow. We are not voting for an appointment vs special election. The code clearly states that we shall appoint, and in the case where we are unable to appoint, we will hold a special election. This is the democratic process in place.

I will follow the process set forth in our code. In the past, majority of times a special election resulted because of public petition.

 If we’re talking about a simple normal vote, with one vote per Councilmember, in which the Council fails to find a candidate who can attract three votes, this if fine.  This is why I haven’t been that exercised about the possibility of Farrah voting for Carrie O’Malley and consigning herself to the rest of her term in a 3-2 partisan majority.  (And yes, it would be partisan.  I think I’ll put that into a separate post.)

However, the very point of this devious points system is allow for a consensus where none exists.  Kenneth Stahl makes this argument in a reply to her post:

1) If the council adopts the “ranked choice” proposal from staff, there does not need to be a consensus. Whoever gets the most points automatically wins. In order to ensure consensus, there must be a majority or unanimous vote. Therefore, I would ask that you please vote against the proposed ranked choice proposal.

2) Section 19-01 says that if the council fails to appoint, the matter goes to a special election. You have the option of not naming a candidate for the position, which would then result in a special election. The people have a right to vote for their councilmembers. So I would ask that you decline to appoint a candidate, and let the people decide.

If this is true — and I think it is — then the best way to head off an appointee with no actual consensus is to reject the proposed voting method being considered today.  It’s not the only way to stop it, but the other ways require more coordination and cooperation to head off a bad result.  Rejecting this procedure — because it violates the ordinance by creating a false “consensus” when the actual preference of members may be a non-negotiable tie, which then calls for for a special election — is the exactly right time, method, and reason to put a stop to it.

Some people seem to think that the point of this system is to give cover to Farrah, who can cast a first-place vote for Lauren and claim to have done her best to honor the party’s wishes, while a second- or third-place vote for Carrie would be the one that actually did the work of selecting her.  I’d like to think that Farrah is not just settling on a sneaky way of giving herself cover to elect Carrie over Lauren — not just because it would be disgraceful, but because it would hurt Irvine and consign her to being in a lasting 3-2 minority.

Here’s what a “points system” would do: let’s say that the candidates are two Republicans (Carrie and Donny) and one Democrat (Lauren).  Melissa and Farrah vote for Lauren (who gets 6 point), Carrie (who gets 4) and Donny (who gets 2.)  The Republican Council members, Shea and Anthony Kuo, then vote for Carrie (who gets 6 points), then Donny (who gets 4) and then Lauren (who gets 2).  Carrie then wins with 10 points to 8 for Laurenand 6 for Donny.  (If Melissa and Farrah split their second-place votes, both Carrie and Donny have 3 votes from Democrats and the Republicans elect whichever one they wish.  There is no way that Lauren wins, nor is there a way to create a tie vote that leads to the special election.

There ARE WAYS AROUND THIS — but they would require cooperation and coordination between the two Democrats.  (They could agree, for example, to cast only a first-place vote and deny any points to Carrie or Donny.  If the Chair rules that out of order, they could both leave, denying the Council a quorum.)

But, for reasons I’ll put into that separate post, Farrah does not seem willing to cooperate with Melissa: she seems to have swallowed a line that wording in the City Charter the council “shall” appoint a replacement means that she MUST support a procedure that takes extraordinary (and anti-democratic) means to avoid the possibility of a tie vote — even if it leads to a Republican appointment unless she and Melissa cooperate as well as Carrie and Kuo do (which seems highly unlikely.)

Farrah cites Irvine City Code Sections 1-2-202.A and 1-2-202.B, as amended by Ordinance 19-01,  to explain her position.  Let’s take a look at them, as well as 202-C:

Farrah is fixating on the “shall” in section A, which she seems to believe means that the Council must successfully make an appointment.  It doesn’t.  We know that it doesn’t because section B itself contemplates the possibility that the City Council may try to fill the vacancy and fail.  You can’t force Council members to give up their position regarding an appointment because of a supposed legislative mandate that they must succeed.

All right, but is it then permissible to do what’s contemplated here — to rig the system so that they will have to take some action that leads to a consensus?  I’d argue — in court, if it came to that — that it doesn’t.  A consensus should be taken to mean that a majority of council members come to an agreement on a candidate whom they want to see appointed to the vacancy — however grudging that desire may be.  That is to say, the ranking of candidates is the second step in such a process.  The first step is for each member to determine which candidates pass a threshold of acceptability.

This can be done in one single vote, by letting people rank only the candidates that they consider to be acceptable — with no one else getting any points.  Another, arguably better, way to do it is to first have each member list the candidates of which they find acceptable — this is called “approval voting” — and then hold a vote among only those candidates that a majority of the Council finds acceptable.  No one should be coerced to find a candidate acceptable simply because of the word “shall” — that word requires the commencement of the process, not its successful conclusion.

A two-part system would make it clear: if Farrah decides that O’Malley is an acceptable choice, she will probably be the only candidate to receive a majority of “acceptable” votes — and that would make the second vote unnecessary.

This puts the matter into clear perspective: if Farrah approves of O’Malley in absolute terms, despite her preferring any number of Democrats (and even if she would personally prefer to see a special election, then she is responsible for O’Malley ascending to the Council, presuming (as seems certain) that the Republicans don’t budge.

(Yes, she’ll point out that the voters can still petition for a special election — but it is absurd to make them go through that massive effort and expense when she has been elected to make that decision on her own.  Why should they have to do the equivalent of scaling Mt. Everest when all she needs to do is the equivalent of climbing a flight of stairs?)

From where I sit, I foresee at best a massive waste of effort leading to massive disgruntlement at Farrah.  If Democrats can’t pull off a successful petition drive — and let’s bear in mind that the City Manager and City Attorney at a minimum seem to be antagonistic to them, so one can imagine many obstacles in their way beyond the need for slews of unpaid volunteers and having to defend its cost — then I imagine that Farrah will spend the next couple of decade telling people that she had no choice but to accept this slanted method of picking a new member.

But it won’t be true then and it is isn’t true now — and even if it were, she should have enough political sense to know that people won’t believe her.  She needs to make up her mind whether O’Malley is an acceptable choice for Council and, if she is, own it.

Failing that, if she allows this motion to pass today without confirming that one need only rank the candidates of which one approves, rather than dipping into the pool of which one considers lesser evils, then she’s incompetent at this job.

Let her know what you think — and go there and tell her what you think yourself.  The meeting starts at … WTF, 2:30?  Well, get there as soon after that as you can!


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Deposed as Northern Vice Chair of DPOC in April 2014 (in violation of Roberts Rules) when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Expelled from DPOC in October 2018 (in violation of Roberts Rules) for having endorsed Spitzer over Rackauckas -- which needed to be done. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. One of his daughters co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)