Code Enforcement issues: Leadership transition, lawsuit

Third installment in a six-part series.

By Doug Spoon, Editor

For the roughly two years when there was a revolving door to the office of the City of Menifee’s Code Enforcement director, the City and a code enforcement manager were accused of misconduct in an ongoing lawsuit. That code enforcement official is no longer employed by the City, the city clerk confirmed.

Before and during this time period, Menifee 24/7 has learned, the city attorney billed more than $100,000 in legal fees to the City for code enforcement actions, which normally are primarily handled by code enforcement staff members already being paid to do so.

Just since the fall of 2019, all of the following have at times played key roles related to the Code Enforcement Department:

-- Colin McNie, for nine years the City’s Mr. Versatility, who doubled as code enforcement director and building and safety director.

-- Lionel Martinez, who worked under McNie, then served as code enforcement manager from McNie’s retirement date of Dec. 30, 2019 until Martinez left City employment in April 2020.

-- One or more other department heads who reportedly supervised code enforcement operations from April 2020 until the Menifee Police Department took over on July 1, 2020.

-- Menifee Police Department Sgt. Raul Perez, who is now listed as the No. 1 Code Enforcement Department contact on the City’s website.

-- City Attorney Jeff Melching, whose law office took on a more active role in enforcing code enforcement cases in recent years – at a cost to the City of $205 per hour.

Code enforcement for years was supervised by McNie (left), whose only fault appears to be that he is too good at too many things. City documents show that there was a demand for his services in multiple departments. While McNie performed double and sometimes triple duty, what appears to be a rough transition period in code enforcement included what many residents have said was a lack of response to calls and emails regarding code issues.

McNie, who came to the City of Menifee in 2012 after many years of similar service with the City of Hemet, has knowledge and experience few others have regarding municipal codes, the building permit process, construction management, and more. He holds certification others do not have. And as growth exploded in Menifee, everyone in City Hall wanted his expertise.

For about a year and a half after McNie’s retirement, City of Menifee officials were still trying to figure out how to replace him in code enforcement while continuing to call on his experience in other departments. Almost immediately after McNie’s official retirement in December 2019, the City brought him back twice in limited work agreements as a retired annuitant to work in other departments. Granted, the City has benefitted greatly from his expertise in supervising the renovation of the old City Hall to become the Police Department headquarters, as well as the expansion of recreational facilities at Lazy Creek Park.

Those temporary work assignments raised questions about whether McNie was entitled to return to work immediately as a retired annuitant. But City officials determined, on the advice of city attorney Melching, that McNie was allowed to do so in the temporary projects for which he was wanted in other departments.

According to California law, a retired annuitant must wait 180 days before returning to full- or part-time employment. Even then, the annuitant cannot work more than 960 hours in a fiscal year. The City went through this with Ron Bradley, a retired administrator from other cities who served as Menifee’s interim city manager for parts of the 2016-17 and 2017-18 fiscal years before Armando Villa was hired.

In McNie’s case, he was hired back on a limited work agreement on Jan. 21, 2020 – just three weeks after his retirement date. How was the City able to do this? According to McNie’s 2020 employment agreement to return in an “extra help appointment”, the re-hiring without the 180-day waiting period was allowed because of California Government Code Section 21224. This states that a retired person may return without loss of benefits “either during an emergency to prevent stoppage of public business or because the retired person has specialized skills needed in performing work of limited duration.”

Lawsuit over gas station property involves Code Enforcement

With that potential conflict resolved, the City was already involved in litigation involving Martinez, who prior to his hiring in Menifee worked as code compliance manager for the City of Hemet.
Martinez was listed along with the City of Menifee as a respondent in a lawsuit filed in November 2019 by the law firm of Stream Hicks Wrage and Alfaro PC. That Riverside law firm represents the petitioner -- land acquisition company Sun City Acquisition LLC, formerly known as BTS Sun City LLC. Martinez was a key figure in the lawsuit because of BTS Sun City's allegations regarding his conduct in threatened action by the City of Menifee to demolish the abandoned former gas station site at the northeast corner of McCall Boulevard and Bradley Road.

Throughout 2019, while McNie performed double duty as code enforcement director and building and safety official, Martinez handled many of the code enforcement supervisory duties. Minutes of City Public Safety Committee meetings list him as giving code enforcement reports in his role as code enforcement manager.

The complaint filed by petitioner BTS Sun City LLC accuses the City of failing to properly notify BTS with a Notice of Intent to Abate Public Nuisance [demolish the property], sending mailings to multiple incorrect addresses with knowledge they were incorrect. Mail stamped undeliverable was introduced as exhibits.

In a letter from the Stream Kim law firm to the City of Menifee and its legal firm of Rutan and Tucker – a document included in the lawsuit – it is stated that Stream Kim and BTS did not discover the existence of the May 7, 2019 Notice of Intent to Abate Public Nuisance until Martinez sent a letter on May 31 of that year. That letter stated that BTS’ opportunity to appeal had already passed.

“Notably, the City of Menifee waited almost a month to respond to Stream Kim's May 3, 2019 letter and surreptitiously waited until the appeal period for the May 7, 2019 Notice of Abatement expired before it reached out to Stream Kim or BTS,” the petitioner alleges in court documents. “In that letter, Lionel Martinez incorrectly stated that BTS had not responded to the April 22, 2019 Failure to Comply Notice -- while at the same time acknowledging that the City of Menifee received Stream Kim's May 3, 2019 letter, which affirmatively responded to the April 22, 2019 Failure to Comply Notice.”

The two sides continue to work on a settlement in the matter, according to court documents.

As the court case continued into 2020, Martinez left the City. Staff began making preparations to transition code enforcement to the Menifee Police Department after July 1 of that year. Meanwhile, Rutan & Tucker began piling up billing to the City for hundreds of legal actions it was taking on behalf of code enforcement.

The key question is about the extent to which the city attorney was needed to take the code enforcement actions, and about the staffing situation that made city officials believe it was necessary. Rutan & Tucker billed the City for 666 items regarding code enforcement between Jan. 1, 2018 and April 30, 2021, according to City documents. Costs to the City for this legal action was $105,675.

“Rutan is the city attorney for the City and they are tasked with dealing with law issues,” city manager Armando Villa told Menifee 24/7. “Some code enforcement cases end up in litigation; Rutan handles the court proceedings. In the most prominent cases, the city is the defendant in the claim, meaning the city is defending itself from a lawsuit. We are not starting the lawsuit.”

Since Jan. 1 of this year, with code enforcement now being handled by Menifee PD, Rutan & Tucker has billed the City only 29 times for a total of $3,408 regarding code enforcement. In a public records request made by Menifee 24/7 that produced the list of 666 billing items from Rutan & Tucker for code enforcement since January 2018, most of the information is redacted. Specifics for each case are blacked out.

“Code Enforcement was reorganized to the Police Department as an initiative to better coordinate and find efficiencies in operations between our New Police Department and code enforcement,” Villa wrote in an email to Menifee 24/7. “The approach and methods used in Code Enforcement have not changed.”

TOMORROW: We look at the challenges members of the Menifee City Council face in their attempts to work together for a common cause.