Monday, March 05, 2018

Will SAB City Commissioner RICHARD BURTT O'BRIEN recuse himself from voting on his OWN censure?

City Attorney JAMES PATRICK WILSON a/k/a "MINIMUM JIM," allegedly said it's ok for O'BRIEN to vote on his OWN censure -- see e-mail from estimable St. Augustine Beach City "Manager" BRUCE MAX ROYLE, below.

I disagree.

See the unilateral, unsupported ukase from unethical City Manager Max Royle -- unadorned by any legal analysis or citation -- and my response, quoting Ango-American law dating back to the 1700s.

Will controversial St. Augustine Beach City Commissioner RICHARD BURTT O'BRIEN vote on his own censure tonight, March 5, 2018?  Will the City Attorney give proper legal advice?

If he doesn't, and if Commissioners and O'BRIEN's colleagues don't speak out, we know they're even more corrupt than anyone ever thought.

O"BRIEN in 2017 did not want to step down from the dais when he was appealing from the PZB's denial of approval for his two McMansions.  He reconsidered.  He did step down.  Do the right thing.

What do y'all reckon?

From: Beverly Raddatz
Sent: Monday, March 5, 2018 7:52 AM
To: Comm England <>; Comm George <>; Comm O'Brien <>; Comm Samora <>; Comm Kostka <>
Subject: FW: Censure Resolution

Mayor and Commissioners: 

Commissioner O’Brien asked me whether he has to recuse himself from any vote concerning the resolution to censure him. I forwarded the question to the City Attorney, who replied “No. It [the resolution] doesn’t relate to his [Commissioner O’Brien’s] financial interests.”

-----Original Message-----
From: Ed Slavin
To: braddatz ; jpwilson ; mroyle
Sent: Mon, Mar 5, 2018 10:24 am
Subject: Request No. 2018-34: Mandatory recusal of St. Augustine Beach Commissioner RICHARD BURTT O'BRIEN on Censure Resolution Vote March 5, 2018

Good morning:

1. Please send me your legal research under F.S. 112 and Robert's Rules of Orderincluding any memos or requests for legal opinions re: the mandatory recusal of RICHARD BURTT O'BRIEN from voting on his own recusal.  

2. If none exists, please so state.  

3. If none is planned, please so state and explain why the City of St. Augustine Beach staff emitted an unsourced ukase this morning, opining that O'BRIEN's recusal is not legally required. 

4. It is basic parliamentary procedure on censures that:

"A quorum must be present and it takes a majority to adopt and a vote by ballot is advisable. A member may debate his censure but he cannot vote. The same rules apply to presiding officers and other officers being censured.

5. IF Commissioner RICHARD BURTT O'BRIEN voted tonight on Commissioner Maggie Kostka's censure resolution, it would be a conflict of interest.  

6. As James Madison wrote in The Federalist, No. 10: "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity .... " As Blackstone wrote, "it is unreasonable that any man should determine his own quarrel." 1 William Blackstone, Commentaries at 91.  See United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961)(the "Dixon-Yates case"), citing Matthew 6:24 -- "no man can serve two masters," holding that laws and rules preventing conflicts of interest is aimed "not only at dishonor but at conduct that tempts dishonor." A "fair trial [and appeal] in a fair tribunal is a basic requirement of Due Process." In re Murchison, 349 U.S. 133, 136 (1955); Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986). This Due Process requirement applies to agencies as well as to judges: it would be violated if RICHARD BURTT O'BRIEN votes on his own censure. See also Withrow v. Larkin, 421 U.S. 35, 46 (1975); Gibson v. Berryhill, 411 U.S. 564 (1973); American Cyanamid v. Federal Trade Commission (FTC), 363 F.2d 757, 764-67 (6th Cir. 1966); Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. City of Monroeville, 409 U.S. 57 (1972). See also Hornsby v. Dobard, 291 F.2d 483, 487 (5th Cir. 1961); Berkshire Employees Assn. v. NLRB, 121 F.2d 235 (3d Cir. 1941); Texaco v. FTC, 336 F.2d 754, 760 (D.D.C. 1964), vacated on other grounds, 381 U.S. 739 (1965); Aldom v. Borough of Roseland, 42 N.J. Super. 495, 127 A.2d 190 (1956); Pyatt v. Mayor and Council, 9 N.J. 548, 89 A.2d 1 (1952); Petition of Jacobson, 234 Minn. 296, 48 N.W.2d 441 (1951); State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 254 P.2d 29 (1953); Driscoll v. Burlington-Bristol Bridge Co., 10 N.J. Super. 545, 77 A.2d. 255 (1950), aff'd 8 N.J. 433, 86 A.2d 255 (1950), cert. denied, 73 S.Ct. 25; Jones v. State Dept. of Public Health & Welfare, 354 S.W.2d 37 (Mo. App. 1962); Wilson v. Iowa City, 165 N.W.2d 813 (Iowa 1969); Josephson v. Stamford City Planning Board, 151 Conn. 489, 199 A.2d 690 (1964); Glass v. Mackle, 370 Mich. 482, 122 N.W.2d 651 (1963); S&L Associates, Inc. v. Washington Twp., 61 N.J. Super. 312, 160 A.2d 635 (1960), aff'd in part and rev'd in part, 35 N.J. 224, 172 A.2d 657 (1961); Jones v. MacDonald, 33 N.J. 132, 162 A.2d 817 (1960); Bracey v. City of Long Beach, 73 N.J. Super. 91, 179 A.2d 63 (1962).  

Thank you.
With kindest regards, I am,
Sincerely yours,
Ed Slavin

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