Sunday, September 14, 2014

Dear Honorable Mayor and Honorable City Council Members,
I am writing this because I’m unable to attend tonight. I request that if possible, this letter be included along with other written or verbal statements you may receive regarding the CATTS Program.
My opposition to this program stems from the illegal contract in effect between the City of Ventura and Redflex Traffic Systems, INC. In particular, it is Cost Neutral. The term “Cost Neutral” is used herein to describe a contract wherein the municipality undertakes no financial risk while the contractor or vendor makes most or all of the capital investment and undertakes all of the risk. If Justice is blind, the eyes of the vendor are wide open when the question of profit and loss comes up.
Notwithstanding the creative syntax and grammatical gymnastics employed in the current contract, and in the proposed extension to camouflage its illegality, the contract currently violates the intent of CVC 21455.5(h) if not the specific wording thereof. This Contract contains terms that explicitly and directly link the vendor’s compensation to the amount of revenue generated through citations/convictions.
The Council’s legitimate task is to interpret the Law, giving it the meaning intended by the Legislature, if it is vague. Here, the Legislative intent is clear. In fact, when this language was enacted, there was a good deal of public concern about the idea of a profit-motivated contractor being involved in the law enforcement process, especially when the perception was that the private company’s profit was directly tied to the outcome of court cases as it is in the City of Ventura. This concern is all the more reasonable when the evidence collected is digital, being easily manipulated. And, it is further heightened when the vendor, Redflex of Phoenix, Arizona, is being investigated regarding bribery and other illegal activities in more than a dozen states (including California) and when there is a history of evidence falsification by Redflex (with at least one Redflex Notary Public in Arizona found to have falsified information). I am well aware of the changes made at Redflex in this regard. In fact, these changes were made necessary, in my opinion, by the rightful perception of corruption both at Redflex and in certain municipalities.
Regarding the interpretation and enforcement of CVC 21455.5(h), the mandatory prohibition regarding cost neutrality makes it illegal. It has been argued that the word “percentage” does not appear in the Contract. But, regardless of the number of citations issued, the exact amount of money owed to Redflex can be calculated calculating revenue in a given period and deducting City expenses from the total, paying Redflex up to the “fixed fee” specified. It is in fact readily apparent that the term “fixed fee” is more properly “maximum fee.” This might be looked at as a “sliding percentage.” The intent of the Legislature is clearly frustrated.
The enabling provisions of CVC 21455.5(h) are “mandatory” under the law. see People v. McGee 19 Cal. 3d 948.  Indeed, the statutory requirement is for the specific purpose of preventing a company or business with a profit motivation and a direct interest in the outcome of a case from involving itself in the Justice System. If a contract as the one in this case is enforced, and it has been in Ventura County, it stands for the proposition that the parties thereto need not comply with State Law.
Although complying with both the letter and the spirit of State Law would pose additional financial risk to the City of Ventura, it would also protect motorists from the risk, actual and perceived, that a private, for-profit corporation would involve itself in the Justice System at the potential expense of Justice. And, numerous California cities have indeed been able to comply with State Law in this regard, entering into contracts without cost neutrality provisions.
Regardless of the fact that a Police Officer reviews photographic evidence and the fact that the Court makes the ultimate determination regarding driver identity, etc., the Legislature sought to prohibit the sort of contract entered into by the City of Ventura and the Vendor. In fact, this intent can be seen in a recent change in statutory language when the prior words “may not” were replaced with the words “shall not” at CVC 21455.5(h) and elsewhere in the enabling provisions. The final meaning of the words may have changed only slightly but it is reasonable to believe that the Legislature sought to emphasize certain requirements that were/are not being observed. Regardless of the assertions by Redflex that its major concern is safety, it is a publicly held, for-profit Australian corporation, operating in the State of Arizona. It has no statutory duty to uphold the Law as a Peace Officer does. The Peace Officer’s oath to uphold the law and the accompanying statutory duty to do so results in the public trust in our system of justice.
CONCLUSION
If the Contract currently in effect is allowed to remain in place, there is continuing risk of public mistrust which is exactly what the Legislature was trying to avoid with the “cost neutral” contract prohibition at CVC 21455.5(h). Furthermore, the City has no incentive to comply with the Law nor should the Vendor be expected to care about the same. For the above reasons, I request that the Council reject the renewal of the CATTS Program Contract.
While it may be true that most defendants don’t know the contract is illegal, for the ones that do are are separated from their money, regardless of whether they actually violated the law, there is created a perception of unfairness or injustice. If the City of Ventura allows an illegal contract to remain in place and the Police Department participates in the prosecution of these cases, the warning of the court in People v. Goulet is appropriate: "Traffic rules account for most of the contact by average citizens with law enforcement and the courts.  Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws."
Sincerely,
Don Hiebert
1937 Cesar Chavez Dr.
Oxnard, CA 93030

cc: Mayor and Council Members council@cityofventura.net, mike.tracy@cityofventura.net, enasarenko@ci.ventura.ca.us, cheitmann@ci.ventura.ca.us, cmorehouse@ci.ventura.ca.us, jmonahan@ci.ventura.ca.us, cweir@ci.ventura.ca.us, nandrews@ci.ventura.ca.us .