Council member Jessica Martinez beat back 4 accusations made against her this evening as the Whittier Council voted 3 to 2 against censuring Councilmember Martinez.
The two yes votes were Fernando Dutra and Henry Bouchot.
The no votes were Jessica Martinez, Cathy Warner, and Joe Vinatieri.
At the beginning of the meeting, the Council noted that it had not censured anyone in its history.
City Attorney Dick Jones told the Council and audience that the legal definition of censure was an expression of disapproval toward a councilmember's actions.
Jones said that censure carries no legal repercussions but that legal precedent is that it must contain fair hearings.
Going over the legal precedents, Jones noted:
There are no legal standards when it comes to censure as long as the hearings are fair to the accused.
The City of Whittier does not have a code of conduct whether for its sitting councilmembers. For what its worth there are no codes of conduct for council candidates either.
Courts have ruled that City Council's seeking to censure members must provide those members with a fair process.
In response to a statement from Bouchot that Martinez was not entitled to a fair hearing, Jones said the hearing must be a fair and clear presentation of the claims against Martinez and that she must be allowed the opportunity to respond to the charges against her.
Responding to statements from public comments that called on the Council to ban Martinez from speaking, Jones said that Martinez cannot be denied the right to respond to the allegations against her.
Jones ended by saying the Council's decision must be based on facts and proven facts alone.
Mayor Vinatieri then asked someone to articulate the charges so they could add it to the agenda. Councilmember Warner said she had questions about the City Council's authority to censure one of its own members.
Warner said she agreed to vote to hold the hearing because the matter had become an issue of great public interest as she had received a lot of input about it. "There has been many requests to the council to remove Jessica from the council" Warner said. She asked Jones if the City Council had the authority to do that.
Jones responded that City Councils are not empowered to remove members in any way. He elaborated that Martinez could only be removed by a judge in a court of law or by the people in a recall or election.
Henry Bouchot interjected that Article 7 Section 9 disqualified from public office anyone who advocates the overthrow of the government. But the clause did not apply to Martinez case, though Bouchot tried to force it to apply. The evidence provided during the hearing proved that Councilmember Martinez did not call for violence and did not participate in the attack on the Capital building.
When asked what process the Council should use, because the Council, in its entire history, literally has never had to censure a member before, Jones said he did not know.
Mayor Pro Tem Bouchot said that according to Paul v. Davis, Martinez had no right to a fair hearing because it was only her reputation that was at stake. Yet he and his supporters had spent the previous week demanding she be removed from the council and banned from holding any political offices. Some local residents and even local politicians were so upset by what Bouchot had told them, including LA County Supervisor Janice Hahn, that they were demanding that Martinez resign and be banned from holding office.
City Attorney Jones interjected and reminded Bouchot that court precedent requires that Martinez be given a fair hearing because it was not just her reputation that was at stake.
The Council voted to make the hearing the last item on the agenda. Councilmember Jessica Martinez attempted to introduce her own motion to censor Mayor Pro Tem Bouchot but it did not receive a second and remained off the agenda.
During the hearing, Mayor Pro Tem Bouchot introduced as evidence several tweets that he had screenshotted from Martinez Twitter and Facebook pages.
With the evidence being accepted into the record, Mayor Vinatieri asked what the charges were that Martinez was being accused of.
Bouchot and Dutra responded that Martinez had:
1. Attending the peaceful rally that preceded the attack on the Capital building.
2. Supporting and promoting conspiracy theories.
3. Being too partisan in a non partisan position.
A fourth allegation was that she violated the COVID 19 order against out of state travel.
City Attorney Jones said that Martinez had to know which tweets Bouchot was referring to so she could respond to them.
Bouchot responded that videos of Martinez at the stop the steal rally. He also pointed to a tweet where she had said that she would be there. She also retweeted a tweet about praying for and supporting the rally participants. He said that Martinez had called for people to be arrested. He alleged that Martinez had tweeted to Paul Ryan, "how many traitors would that make?" Then he qouted her as saying, "So are we allowing illegals to participate in US elections?" summarized because the quote is longer than that. In another tweet being used against her, Martinez said, "Cases are being dismissed but not for lack of evidence but because of technicalities."
Among other statements that Bouchot introduced:
"Democrats used the pandemic to push for mail in voting."
In one tweet she said she was willing to give her life to defend her country.
Martinez tweeted that she had heard about harddrives being sent from China to Pelosi.
She called for the arrest of members of the media for treason.
When Bouchot accused her of calling for the murder of the mayor of Minneapolis, Martinez objected saying that Bouchot was only providing a partial quote and that he was using her tweets out of context. Councilmember Fernando Dutra went after Martinez for being partisan while holding a nonpartisan seat.
Mayor Vinatieri noted that Bouchot's claims against Martinez are based exclusively on the tweets. At this point the City Attorney said the City Council had to recess in order to give Martinez time to review the evidence arrayed against her and said she must be provided with a copy of them.
Martinez said she wanted the tweets to be read out loud so the community could hear them. Bouchot suggested having Rego read them. Vinatieri directed Rego to read them.
Rego put the tweets on the projection because it would show the context of the tweets for those watching from home. Martinez insisted that the tweets before and after hers be read as well in order to put her tweets in the proper context.
The first slide was an image of Martinez at a rally. The picture did not show anyone guns, swastikas or even Proud Boy's paraphernalia. it did show a couple of people with MAGA hats and a Trump flag.
In the first tweet, someone had tweeted they were praying for the safety of rally participants and for the nation's leaders. Martinez tweeted to reply "Thank you."
Martinez told her fellow councilmembers that she had been attending a the peaceful rally at the Washington Monument and that when the main speakers had finished speaking she went back to the airport. She said she first heard about the attack on the Capital building as she was boarding a plane back to Whittier.
She said that since Bouchot had made his accusations, her family had been receiving death threats, particularly her children. When he was asked to apologize, Bouchot was quite for what seemed like an eternity before defiantly saying the only ones who deserves apologies are the career politicians in Congress.
Responding to Martinez criticism that he had not called her to ask what she was doing in DC, Bouchot became hostile and said, "No one called the members of Congress to tell them that they would be targeted."
In slide, someone mentioned that his daughter had cancer. Martinez responded she would pray for her.
In another tweet talking about praying for the rally, Martinez she would be there. Martinez said she also prayed for members of Congress and the state legislature.
Reponding to yet another tweet that asked, "What would you give up for your country?" Martinez responded, "My life."
The review of the evidence with the before and after tweets proved the tweets had been taken out of context.
During the vote the council members explained their reason for the way they voted.
Councilmember Warner said she would not support the censure because it seemed to be trying to punish Martinez for exercising her free speech rights just because she was a Trump supporter.
Councilmember Martinez voted against for reasons that should be pretty obvious. But even she had not voted, the result would have been the same.
Councilmember Dutra slammed Martinez for bringing partisan politics into a non partisan position. He reminded her that members of the Whittier City Council have to represent every one in their district, not just Republicans and not just Democrats. Dutra voted yes to censuring Martinez. Dutra, like Bouchot, is up for reelection in 2022 and the issuing of paperwork for the 2022 election starts in December of this year. Both will be working to gain support for reelection over the summer of this year.
Mayor Pro Tem Bouchot also voted in favor of censure, making the vote 2 to 2. Bouchot accused Martinez of being a terrorist and of supporting violence against government officials. He said that the conspiracy theories that Martinez tweets about proved her guilt. He also defaulted to the fact she took her stimulus payment and used it to attend the rally which he called a super spreader event. Health experts are saying to expect a massive surge in COVID hospitalizations and deaths caused the refusal of rally and insurrection participants to wear masks and social distance. Some of the public comments asked whether Martinez was going to home quarantine but that was never answered. Responding to accusations his move was politically motivated, Bouchot said he never had any intention of seeking higher office. Back in December of 2019, Bouchot had flirted with the idea of running for the assembly seat now held by Lisa Calderon.
Mayor Vinatieri who had cast the tie breaking vote said the Council had taken a careful and close look at the evidence and that it was hard decision. He noted that while it was important to hold people accountable when they break the law, you don't want to punish people who were peacefully protesting the election results. He said that "we have to separate the protesters from the rioters because they are not the same." He also rejected the claim that Councilmembers have to represent the city 24/7 even in their sleep. The standard is actually unreasonable and unrealistic. He said that even councilmembers retain freedom of speech when they are on their personal time. He blasted both Martinez and Bouchot for being hyper partisan, saying their partisan feuding was hurting the city and they were equally at fault.
The vote was taken by roll call but the four charges were voted on as a single item instead of being broken up. If the charges had been voted on separately, it is possible that the result would have been different for at least two of the charges such as the COVID restriction violation and the one about being partisan. But the ones about conspiracy theories and supporting violence would have still failed.
In an unscientific poll, 82% of respondents supported the Council's decision while a significant 17% said it would hurt Whittier. Some people said they would move forward with recalling Martinez while an equal number said that they would not vote for Bouchot. A significant number of respondents said that neither Martinez nor Bouchot belong on the City Council. They said they would be voting against both Councilmembers in 2022. They told Whittier they want Councilmembers who are going to nonpartisan and ultra loyal to their parties. It looks like this is not the end of the trouble the City Council's two partisan members are finding themselves in.
UPDATE: In the public interest, since Mayor Pro Tem Bouchot mentioned the case Paul v. Davis we are linking to a summary of the case so that readers will know what the case was about and what the outcome of the case was. According to the synopsis provided, "Reputation alone, apart from some more tangible interests such as employment is neither liberty nor property for Due Process purposes." We would note that Martinez place on the Council is a bit more tangible than just her reputation.
https://supreme.justia.com/cases/federal/us/424/693//
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