Raising the Wage

Lately I’ve been writing about politics qua politics, namely the firing of Elizabeth Riel, but I’m going to take a break from that saga to write about something in the real world, namely raising the minimum wage in Santa Monica, a matter that comes before the City Council tomorrow night.

Hey, it’s refreshing to write about an issue that doesn’t have much to do with traffic. Instead, like homelessness, housing affordability, the achievement gap, and gang violence, not to mention latent ethnic and racial discrimination and prejudice, the minimum wage is a true social justice issue—the kind of issue that should be the focus of much more governmental attention and political activity.

After years of agitation, including in Santa Monica, for living wages tied to specific factors, in the past few years a movement has arisen nationally to raise the minimum wage for all workers. In this connection, the City of Los Angeles this summer passed a local minimum wage that will increase the hourly minimum to $15 by 2020 for most businesses. The County of Los Angeles followed suit for for unincorporated areas. In response, the Santa Monica City Council directed staff to work on raising the overall minimum wage in Santa Monica, and tomorrow night the staff will be presenting its recommendations.

For the most part there is little controversy, as Santa Monica will adopt wage rates consistent with those of Los Angeles. It doesn’t make sense for the region to have different minimum wages. There are, however, a number of details that need to be worked out, some in areas where the Los Angeles City Council has deferred decisions.

In Santa Monica these principally involve: (i) whether for unionized businesses, union contracts will supersede the minimum wage ordinance (“supersession”), (ii) sick leave policies, (iii) how businesses can utilize service charges, (iv) enforcement issues, (v) seasonal workers, and (vi) whether, as in Los Angeles, there should be a separate minimum wage schedule for hotel workers (which L.A. enacted before the general minimum wage increase). According to the staff report, staff recommends resolving some of these issues, such as union contract supersession now, but leaving other issues for later action.

As the saying goes, the devil is in the details, and I tend to agree with local living wage activists such as Vivian Rothstein, who are asking the council tomorrow night not to pass an ordinance, but to treat the evening as a study session so that more data can be collected and discussed on what are complicated issues. The idea is that the Council has time to work on and pass a more comprehensive ordinance later.

One complicated issue is whether union contracts should supersede the minimum wage. Santa Monica has always allowed this policy when it has required higher minimum wages in development agreements, and staff recommends including supersession in the City’s ordinance. Nonetheless, according to the staff report some businesses are objecting by saying that supersession gives unionized businesses an advantage over non-union businesses.

It’s not only some business interests who question supersession, but supporters of higher minimum wages are also divided. Some cities with local minimum wages, including Chicago and San Francisco, allow union supersession, others, such as Seattle and San Diego, don’t. The union movement is also divided; for instance, the Los Angeles Federation of Labor has asked for supersession to be included in the L.A. ordinance (the L.A. City Council has deferred action on the question), while the powerful Service Employees International Union opposes supersession.

And then some conservatives, who aren’t in favor of raising the minimum wage in the first place, say that the only reason unions want the exemption is to make sweetheart deals with employers to increase their membership numbers.

I try to look at the question from the perspective of what’s better for the society as a whole, and although I can appreciate some of the arguments against supersession, I favor it.

To me, to allow union contracts to supersede the minimum wage puts a lot of pressure on unions—a lot more pressure on unions than on non-union businesses. To organize workers, unions must be able to persuade them that by unionizing they will do better than how they are doing without unionizing; an increased minimum wage sets the bar higher. It’s unlikely that workers will sign up or stick with a union that doesn’t get them a package that is at least as good as the minimum wage.

If unions are willing to confront this challenge, however, they should be allowed or even encouraged to do so, because the benefits to the society of unionization, over simply relying on an increased minimum wage, are many.

Union contracts, because they can deal with so many subjects beyond wages, matters including healthcare, pensions, and other benefits, as well as hours, work schedules, and security, are beneficial not only to workers, but also to our society, because they take care of workplace issues that government is best kept out of. (In fact, you’d think this should be a conservative argument—if you don’t want governments meddling in your business, don’t fight union organizing!) Unions also enforce their contracts, saving government from having to enforce minimum wages and working conditions. (Again, do conservatives want more bureaucracy?)

In contrast, the argument that supersession would penalize nonunion businesses doesn’t take into account the real world obstacles to union organizing inherent in the fractured employment landscape we have today.

For these reasons, I hope that Santa Monica allows for supersession and leads L.A. to the same conclusion.

Thanks for reading.

Riel Politics, Part 2: Free speech and politicians

Last week I ended my chronology of the firing of Elizabeth Riel by concluding, “there is no evidence from the record that [City Manager Rod] Gould made his decision [to fire Riel] on orders from [then Mayor Pam] O’Connor or even on her suggestion.” I’ve had some pushback on this. Some who want O’Connor investigated argue that it’s not what O’Connor did that’s important, but what she wanted done.

Note that I based my conclusion on “evidence from the record.” I didn’t try to analyze what might have been going on in O’Connor’s mind, whether she wanted Gould to fire Riel or not. From the record—consisting primarily of emails and depositions—it appears that she was only interested in telling Gould that she would not work with Riel, but maybe O’Connor did want Gould to fire Riel. Maybe O’Connor knew Gould so well that she could predict he would fire Riel after O’Connor informed him of Riel’s political activities.

I’m not a mind reader, and I don’t know anyone who is. Frankly, I don’t care what O’Connor was thinking, or her hopes and dreams, because what O’Connor thought is not relevant. When it comes to whether she abided by or violated Section 6.10 of the City Charter the issue is what O’Connor did, not what she desired.

There’s another theory, which is that even if O’Connor never violated Section 6.10 by ordering or requesting, “directly or indirectly,” Riel’s firing, that was only because O’Connor was crafty enough to do everything short of what would be improper. But isn’t that why we have rules? To separate what is proper from what is improper?

Assuming that O’Connor did want Gould to fire Riel, is it a bad thing that after 20 years on the City Council she knew the rules and knew what she could do and what she couldn’t? It seems like those who want O’Connor investigated or even prosecuted (leaving aside the question whether a violation of the City Charter is a criminal offense) expect O’Connor to be guilty whether she followed the rules or not.

And what are those rules? Section 6.10 prohibits councilmembers from giving orders with respect to hiring and firing decisions; does that mean that councilmembers can’t tell the City Manager what they think, good or bad, about city employees? Before you say, in response to the Riel $710,000 settlement, that councilmembers should never talk to the City Manager about employees’ performance, consider: is that consistent with the role of councilmembers who are, after all, not only legislators, but also the eyes and ears of the community?

Imagine that you are a resident concerned about too much development. You’re upset because you believe that the Planning Director favors development. You complain to a councilmember. Perhaps the councilmember agrees with you. Do you not want the councilmember to be able to tell the City Manager that you believe, or that the city councilmember believes, that the Planning Director is doing a bad job?

This kind of feedback to the City Manager is part of a councilmembers’ job. In fact, the courts go even further. They say that councilmembers have the right to tell city staff what’s on their mind. How do we know this? Well, from a court case involving Santa Monica, one in which residents sued the city because they alleged that a councilmember violated Section 6.10 by interfering with the work of city staff. (The second part of Section 6.10 says that councilmembers, other than for the purpose of asking questions, “shall deal with the administrative service under the City Manager solely through the City Manager.”)

The case, Levy v. City of Santa Monica, was brought by local land-use attorney Chris Harding on behalf of a family, the Levys, who built a kids’ playhouse in their backyard. A neighbor didn’t like the playhouse, and complained to Councilmember Ken Genser. Genser passed the complaint onto the City’s Planning Director. The Levys alleged that Genser did more than ask questions of staff.

The City responded with a motion to dismiss the suit under California’s “anti-SLAPP” law, which protects defendants against lawsuits that would prejudice their First Amendment rights. While the trial judge rejected the City’s motion, on appeal the City prevailed. The Court of Appeal ruled that, “a city council member did not violate section 6.10 by speaking with city planning department employees on behalf of a constituent . . . . The First Amendment protects everyone, even politicians.” (Emphasis added.)

The City Charter is clear about what a councilmember cannot do: “order or request” the hiring or firing of a city employee. This should be a high threshold. Yes, it was a fiasco what happened with Elizabeth Riel, but would we want a system where elected officials cannot complain to the City Manager about the conduct or biases of city employees?

Next installment of Riel Politics: what questions could Elizabeth Riel permissibly have been asked about her political history?

Thanks for reading.

Riel Politics: the firing of Elizabeth Riel, a chronology

I didn’t plan it, but on a de facto basis I’ve taken a month-long, late summer vacation from the life and times of Santa Monica. I did a little traveling, but let’s face it: with the heat it was hard to think, let alone write blogs about local politics.

However, time, tide, and the Santa Monica Coalition for a Livable City (SMCLC) wait for no man, and while I was gone one of the juiciest political dramas in recent Santa Monica history kicked into high gear. I’m speaking of the fallout from the City’s firing of Elizabeth Riel in 2014 and the settling in July of her subsequent lawsuit for $710,000.

The political drama has focused on the role of Councilmember Pam O’Connor. SMCLC has demanded that O’Connor be prosecuted for violating the City Charter by interfering in a hiring decision by former City Manager Rod Gould, and according to SMCLC, as reported in the Lookout, the City is referring the matter to the District Attorney. (Section 610 of the City Charter provides that councilmembers shall not “order or request directly or indirectly the appointment of any person to an office or employment or the removal of any person therefrom, by the City Manager, or by any of the department heads in the administrative service of the City.”)

Meanwhile, Mayor Kevin McKeown has said that the City will review the matter, and O’Connor has said she welcomes the review.

Not willing to wait for the D.A. or the City and not considering SMCLC’s analysis to be definitive, I decided to conduct my own investigation. Through a public information request I obtained all the documents disclosed by the parties in Riel’s lawsuit and the depositions of O’Connor, Gould, Riel and Mayor Kevin McKeown. In this much longer than usual post I’ll summarize the facts as laid out in the documents and deposition testimony; in later posts I’ll try to make sense of the various issues that arise from the case. There are a lot of them: the politics, naturally, and even the philosophical, because the case has a lot to do with where government runs up against politics, but also the personal. Believe me, the personalities could be out of a novel, or a gritty TV drama.

The City hired Riel on May 6, 2014, and she was going to start work on June 2. Her job was to be the City’s Communications and Public Affairs Officer. The position is within the City Manager’s office and involves, among other duties, interacting with all the city councilmembers, particularly to prepare them when they would be representing the City in public events. Riel would be replacing the estimable Kate Vernez, who was retiring.

The crucial events that led to the firing of Riel took place over about 24 hours on Thursday and Friday, May 22 and 23, 2014, which were two days that preceded the Memorial Day weekend. Based on my reading of the relevant documents, principally emails among O’Connor, Gould, Gould’s staff, and Riel, and the depositions of O’Connor, Riel, and Gould, the following is the chronology of what happened.

On May 22, in the late afternoon or early evening, O’Connor, who was then mayor, sends her first email to Gould. She tells Gould that she will be “extremely hesitant to work with Elizabeth Riel especially during the campaign season” and that “if I need support on Mayoral things I want someone else assigned.” Gould, by the way, is in Canada at a conference when he receives this email. He remains in Canada until Sunday, May 25; one affect of this is that, as the lawyers in the case realized, it’s often difficult to know the exact time, in Santa Monica, that emails were sent, since people are emailing from different time zones.

In her first email, O’Connor doesn’t give much in the way of reasons for not wanting to work with Riel, simply saying that “in past elections SMCLC has attacked me.” “SMCLC” is, of course, a reference to the Santa Monica Coalition for a Livable City. The only backup that O’Connor gives in this email for her not wanting to work with Riel is a link to a letter to the City Clerk in 2008 that Riel co-signed as of one of the proponents of SMCLC’s RIFT initiative, along with two other proponents, Diana Gordon, co-chair of SMCLC, and future councilmember Ted Winterer, who signed as President of the Ocean Park Association. Riel identified herself as “Past President, NOMA,” referring to the North of Montana Association.

Gould replied by email, asking O’Connor to give Riel “a chance to prove herself.” He tells O’Connor that he’d heard Riel speak “very respectfully” of O’Connor “and the issues for which you stand.”

Pam O'Connor's first email to Rod Gould about Elizabeth Riel, and his reply.

Pam O’Connor’s first email to Rod Gould about Elizabeth Riel, and his reply.

Gould’s response doesn’t satisfy O’Connor. She replies that Gould had hired someone with political ties to other council members, and that he’d put “a no-growth activist in upper management at City Hall.” But it’s clear that O’Connor considers the hiring of Riel to be a done deal; she tells Gould to “just give me the technical materials I need when I need them and I’ll do it myself” (“it” meaning preparing her presentations), and concludes the email with a cheery “Thanks!”

It’s not clear that either of O’Connor’s first two emails would have had any impact on Gould, but then O’Connor sends Gould a third email. Apparently O’Connor had been doing Internet research; she begins this email by saying that “I don’t think your background checking folks did much of a job,” and then quotes from and links to an article in the Lookout from 2006 about an attack mailer that SMCLC sent out in 2006 against O’Connor that Riel helped fund.

In Canada, Gould must have gone to bed by then, because he didn’t reply until the next morning, Friday, May 23, and it was on that day that the crucial developments that resulted in Riel’s firing took place.

In Gould’s reply to O’Connor’s third email, Gould is still defending Riel. He tells O’Connor that Riel “has grown very tired of all the complaining around town…. She wants to put the development issues in better light.” He says that he is “surprised by her earlier association” and that he will discuss it with her. Finally he asks that O’Connor “keep an open mind and give her a chance.”

We get more insight into Gould’s state of mind as the day began through an early exchange of emails between him and Elaine Polachek, his deputy. At 7:21 that morning, Polachek, responding to Gould’s forwarding of O’Connor’s email from the night before, states to Gould that Riel had not disclosed the matters brought up by O’Connor and says that it’s a “trust issue for Pam.” Polachek asks Gould if he thinks “it’s salvageable.”

Gould responds in an email by saying that he will speak with Riel “to be sure she can work with all members of the City Council.” Crucially he then says, “I think we made the right hiring decision, but am not at all sure Pam will give her a chance to prove herself.” This is important because it shows that Gould was not then expecting to fire Riel, but was worried that O’Connor would not work with Riel when she came aboard. Nothing that O’Connor had said to that point made Gould think that the solution was to fire Riel.

Polachek was of the same mind: she affirmed that she thought that Riel was the right choice, but said that O’Connor, when she sets her mind, “tends to be immovable.” Repeating a suggestion she had made in another email even earlier Friday morning, Polachek suggests that Kate Vernez (the staff member Riel would replace), might help “open the door a little” for Riel with O’Connor, but says that Riel will then “have to try to establish trust with her.”

Emails between Gould and Elaine Polachek Friday morning.

Emails between Gould and Elaine Polachek Friday morning.

These emails make it clear that at this point both Gould and Polachek expected Riel to come to work, and the issue would be getting O’Connor to work with her. As Friday began, Gould was expecting to speak to Riel to confirm that she could work with all members of the Council, but he was worried that O’Connor would not give Riel the benefit of the doubt.

Meanwhile, it becomes apparent not only from the emails, but also from O’Connor’s deposition testimony, that she was getting deeper into the issue because she felt that Gould was not taking her concerns seriously. You never know what might have had happened if Gould had said something like, “don’t worry, I won’t make you work with anyone you don’t want to work with.” But as Gould keeps asking O’Connor to give Riel a chance, O’Connor keeps finding more about Riel she doesn’t like, and Friday afternoon O’Connor responds with a blistering email to Gould, saying that she does not and will not trust Riel. She says she will not work with Riel “not because she is a supporter of others but she attacked me directly by putting money onto (sic) a hit piece. There are very very few direct hit pieces done in Santa Monica and she was a leader in this effort.”

In the email O’Connor chides Gould for hiring “people who are political enemies of people elected to your Council,” but O’Connor still considers the hiring of Riel to be a done deal. There’s nothing indicating that O’Connor believes the decision can be reversed; she wants Gould to find someone else for her to work with.

As the afternoon goes on, O’Connor continues to ratchet up the pressure. In another email she tells Gould that she’ll be running for reelection—with the implication that that gave her even more reason not to trust Riel, who had worked for the reelection of Kevin McKeown in 2006 (McKeown would also be running again in November 2014). In another email O’Connor states that she’s sure Riel’s hiring will become a news story because of her political activity, implying that it’s going to be a public embarrassment, and possibly implying that she’ll make sure it’s a news story. When Gould asks her to have continued confidence that no one on his staff, including Riel, will prejudice O’Connor’s reelection campaign, O’Connor responds with, “I’m sure Kevin [McKeown] hasn’t lost faith!”

But again, there’s nothing where O’Connor indicates that Riel could or should be got rid of.

Returning to Gould’s actions, Friday morning he sent Riel an email asking her to call him. She tried to, but was told that he was in a lunch meeting. In an email she told Gould that she was going into a meeting herself, but that she would be available around 5:45. Gould replied by thanking Riel for trying to reach him; then he said it would be good if they “could talk briefly over the weekend if not today.” He told her that it was about “a small but gnarly political issue.” Gould did not reveal that the gnarly political issue involved her; and Riel responded, without any foreboding, “Ha – those are the best kind!”

Emails between Gould and Elizabeth Riel trying to schedule a phone call.

Emails between Gould and Elizabeth Riel trying to schedule a phone call.

The delay in connecting did not help the atmosphere for the eventual telephone conversation. As the day progressed, Gould became increasingly annoyed by what Riel had not disclosed during the hiring process. His annoyance became focused on four prior political activities that seemed particularly partisan: Riel’s financial contribution to the 2006 attack mailer on O’Connor; her being an active volunteer on McKeown’s 2006 reelection campaign (and donating to it); her being one of the founding members of SMCLC; and her being one of the leaders in the 2008 RIFT campaign.

Gould’s increasing frustration was reflected in two emails that he sent to O’Connor Friday afternoon before speaking to Riel. In them he first raises the possibility, if Riel can’t give him assurances that she’ll be able to work with all the councilmembers, of rescinding the job offer. (Gould always wrote as if Riel had only been offered the job, not that she’d accepted the offer and been employed). In the first email he writes, “if she insists that she can discharge the full duties of the position, then I must allow her to begin work.” He says that he will discuss the matter with City Attorney Marsha Moutrie to see what his options are; from the email it’s clear that he believed that Riel’s job was under civil service and that she might have job protections that could prevent him from terminating her employment.

The second email to O’Connor Friday afternoon came after he spoke with Moutrie. The City Attorney had apparently informed Gould that Riel’s job was not covered by civil service, but was rather an “at will” position meaning that her employment could be terminated at any time. Gould was still agonizing about what to do. He tells O’Connor that he is “depressed over this,” and “increasingly bothered that [Riel] shared none of this in the process. As a public relations expert, she of all people would have strong sense of how her previous activism would affect how she is perceived in this role.” He asks rhetorically, “does her previous political work disqualify her for this key position?,” and continues by telling O’Connor, “I will speak with her and think hard about this. I may have to reverse course and rescind the offer. Marsha and I have been discussing this option and she can help.”

O’Connor apparently didn’t see this last email from Gould until the next day when she was in Barcelona. Yes, while O’Connor was writing those emails that Friday afternoon, she was preparing to fly to Spain. She doesn’t respond to this email until Saturday, the 24th, after she got off her flight in the late morning Barcelona time, which was in the wee hours Saturday morning in Santa Monica.

In the meantime, it was all over but the litigating.

Gould and Riel finally connected late Friday afternoon; Riel was on her cellphone doing errands in her neighborhood. The conversation did not go well. While in their depositions and in court papers Gould and Riel differ on the tone of the conversation, the content is not materially in dispute. Gould began the call by asking Riel about the four incidents of partisan political activity that most bothered him. Riel, for her part, acknowledged that the facts as Gould had them were true. You might think, so far so good, but alas, instead of this acknowledgement leading to dialogue and an understanding that restored Gould’s faith that Riel could do the job, the conversation went downhill.

According to Gould, he lost faith in Riel because instead of going on from acknowledging that she’d engaged in partisan activities to a further acknowledgement that these revelations created problems, Riel gave Gould four of what he called “rationalizations.” The first was Riel’s saying, according to Gould, after she acknowledged the four partisan activities, “But I never hid it from you.” As Gould recounts in his deposition (page 239), that statement perplexed him, since she had not disclosed anything about political activities in the recruitment process.

More than anything else, this statement from Riel, that she had not hidden her prior political activities from Gould, seems to have been what cost her Gould’s confidence and her job.

In case you are wondering, as I am, what Riel meant by this statement, you won’t find an answer in her deposition, as the attorney for the City did not ask Riel why she told Gould that she had not hid the information. The attorney did ask her if she had disclosed the information in the recruitment process, and Riel admitted that she had not (page 278 of her deposition), and consequently it’s hard to understand what Riel was thinking when she told Gould she’d been open about her past. (Based upon something her husband said after the firing, it’s possible that Riel considered that she had disclosed enough about her political past by disclosing on her resume that she had been president of the North of Montana Association and that she had written a column for the Daily Press.) What’s unfortunate is that if, in the phone call with Gould, Riel had simply said what came out later, that after six years she’d put all of those politics out of her mind and didn’t think they were important (Riel deposition, page 74), the phone call might have had a better outcome.

Gould ended the conversation by telling Riel that they should both think about the issue over the weekend and speak again, but it’s clear from emails Gould sent to O’Connor and his staff that he had made up his mind based upon the phone call Friday afternoon to rescind the job offer.

Email from Gould to O'Connor and staff on Saturday regarding his decision to fire Riel.

Email from Gould to O’Connor, cc’ing Polachek and Moutrie, on Saturday regarding his decision to fire Riel.

For her part, Riel also believed that she’d lost the job. By the next day a sympathetic friend with whom Riel had confided was trying to find her a lawyer, and by Monday (Memorial Day), when Gould gave Riel the formal decision over the phone, she, anticipating legal action, took notes on what he said.

Suffice it to say that the phone call on Monday did not go well either. Gould was sad and apologetic, but his attempts to persuade Riel to agree to a joint statement, to spare her, he thought, embarrassment, only made things worse.

So that’s what happened. One can argue whether Gould fired Riel because of her political beliefs or because he no longer trusted her, or no longer believed that she could act impartially in her job, and O’Connor sure didn’t want to work with Riel, but there is no evidence from the record that Gould made his decision on orders from O’Connor or even on her suggestion.

Next installment—what can a councilmember say to a city manager, and what should a councilmember be able to to say to a city manager?

Thanks for reading.

Memo to council: make decisions and the priorities will take care of themselves

Tomorrow the Santa Monica City Council will convene in an extraordinary Sunday session to, in the words of the staff report, identify “which three to five of the many significant things the City is already doing should be the top priorities for the upcoming years.”

Due to prior commitments, including a general commitment to using Sunday mornings to preserve my sanity rather than wreck it, I’m going to miss the retreat, but that doesn’t mean I don’t believe it’s a good idea to prioritize. Our municipal government does try to do too much (meaning more than it has capacity for, not that there is too much to do), and even if all this activity is the result of good faith efforts to fix every problem, at some point it’s necessary to step back. When I look at the accomplishments of the City of Santa Monica, my belief in government in strengthened. But when I look at the ambitions, I at least begin to understand where traditional conservative thinking comes from.

The staff report lists twelve suggestions for the council to consider (I could suggest even a few more), and the report mentions in passing that staff has identified 68 high-level departmental goals for themselves. So pruning and prioritizing makes sense. If I were setting the agenda for a council retreat, however, I would prioritize some time for soul-searching. The root of the problem is that the council itself has a hard time making decisions and sticking to them, and is easily distracted by whatever is the crisis of the day, so that it wastes its own time and staff’s time going this way and that.

Take the LUCE, which is listed as one of many past “Strategic Projects and Priorities That Have Shaped Santa Monica.” When City Council in 2004 authorized staff to begin the LUCE process, the expectation was that the project would take two years. It took six and the final product didn’t even cover the crucial areas of downtown and the Bergamot district, which were left to more process to develop specific plans. More that than, the six-year process resulted in a LUCE that was soon gutted by a combination of the Hines Paper Mate fiasco and the zoning that was supposed to implement the LUCE but took five years to finalize.

How can government expect to sustain the vision to make good decisions over an eleven-year process? There were many immediate causes for all the delays, but the underlying cause was that the council was afraid to make decisions. It was always easier to authorize more process, hire more consultants, take more surveys, allow more public venting. The LUCE that resulted is itself a document that enshrines indecision, by making the most important future development decisions discretionary.

The most pernicious impact of the passage of time was that by the time the council voted on the key implementations of the LUCE, on Hines and the zoning ordinance, the focus and priorities, not to mention the membership, of the council had drastically changed from what they had been in 2004 and 2010.

Perhaps I’m thinking about this because last Monday the ultimate insult resulting from the epic failure of the LUCE, namely the “Pen Factory” re-do of the Paper Mate factory, came before the Architectural Review Board. In 2004 it was clear that the focus of future development in Santa Monica would be the old industrial areas around Bergamot, and that the key goal of the LUCE was not to repeat the planning failures of the 1980s, when the council authorized monolithic suburban-style office parks on former industrial properties. The most important piece of property in the area is the Paper Mate site, because of its size but even more important its location between the future Expo stop and the rest of the district to the north and east.

So eleven years later, after so much governmental effort, what role does government have in the redevelopment of this property into . . . monolithic offices? Drum roll . . . government gets to help pick out the paint colors, while it pleads with the new Pen Factory property owners not to hide the building behind a giant hedge. Government can’t even get them to remove a decrepit chain link fence that seals the property off from Olympic Boulevard.

What role did time play in this? For one thing, if the LUCE had been completed in two years, by 2006, when the economy seemed strong, staff and council might have been more confident reducing the amount of office development and increasing the amount of housing. As a result, the developer would have had to design a better project.

As it happened, these decisions were made in 2009 and 2010, during the Great Recession, and we had a City Manager new to Santa Monica who was panicked by the idea of having to provide services to a lot of new residents without offsetting taxes from businesses. We heard a lot about the virtues of “creative offices” and we had a consultant tell us that the purpose of the development there was, in effect, to generate more riders for Expo. Council unanimously passed a LUCE that allowed far too much office development in the Bergamot area.

Then, by the time the actual plans came up for approval, in 2014, times had changed again, and we know what happened then. As a result, we’re getting just what the LUCE was supposed to protect us against.

Santa Monicans have generally elected capable and knowledgeable councilmembers. What the council needs is confidence. They need to make decisions based on what they know and believe, not hide behind endless public process that satisfies no one and exhausts everyone. Then the priorities will take care of themselves.

Thanks for reading.

When transparency meets opacity

In 2000 voters in Santa Monica passed the “Oaks Initiative,” a charter amendment intended to stop corruption by preventing public officials from benefiting financially from decisions they make. Unlike laws against bribery, etc., that target actual malfeasance, the Oaks Initiative is based on a presumption. It presumes that only the promise of monetary benefit, in the form of campaign contributions or compensation for services, could have motivated any public official to make a decision beneficial to a person or entity if after making the decision the official receives a monetary benefit from the person or entity that received the benefit.

Oaks was nine years ahead of the Tea Party in its cynicism about government.

The Oaks Initiative is also odd because it doesn’t prevent officials from receiving benefits before making any decision. Worse, the Oaks Initiative, by restricting contributions directly to candidates, further encourages contributions to non-accountable independent campaigns that spend far more money in Santa Monica elections than the candidates themselves.

The Oaks Initiative was in the news last week because three members of the Transparency Project, including its founder, Mary Marlow, have brought a lawsuit against former City Manager Rod Gould for accepting employment from Management Partners, Inc., a company that Gould had hired while he was City Manager to perform services for the City. Marlow and the other plaintiffs brought the suit after City Attorney Marsha Moutrie told the Transparency Project that because of a conflict of interest, she could not enforce the law.

On its face, it appears that Marlow and her fellow plaintiffs have a strong case. Gould awarded contracts worth more than $25,000 to Management Partners, and within the relevant Oaks time period during which he was restricted from getting a benefit from Management Partners (two years after he left his employment with the City) Management Partners hired him.

However, after Oaks was passed, two trial courts found that it was unconstitutional. While those rulings were voided on appeal for procedural reasons, Gould will probably raise constitutional objections, and he may have other arguments. California law includes strong public policies in favor of a free labor market. For instance, in most circumstances California bans covenants not to compete. Courts might apply those policies against the application of Oaks when it prevents someone who hasn’t otherwise broken the law from getting a job.

But unless he has someone to pay his legal fees, there will be a lot of pressure on Gould to settle. Under Oaks, successful plaintiffs get 10% of any damages assessed against the defendant and repayment of their costs of litigation, but defendants who win have no redress against plaintiffs.

One thing is clear: the case further tarnishes Gould’s reputation. While Gould did a good job running the City after the Great Recession, his taking the job with Management Partners and the Elizabeth Riel fiasco raise significant questions about his judgment.

At the same time, the lawsuit raises questions about the Transparency Project and its collective judgment.

By any standard, let alone the standards of municipal government in California, Santa Monica is a well-governed city. Even if you believe that Santa Monica City Hall is a cesspool of corruption, do you think it stinks because a technocrat like Gould hired a firm of technocrats to help manage Santa Monica’s bureaucracy? The annual budget of Santa Monica is something like half a billion dollars; the total dollar amount of the four contracts Gould awarded to Management Partners was about $165,000, less than half of the annual compensation Gould received from the City, and I presume less than what he’s getting from his new employer. Sure, Gould done wrong taking the job, but is this really quid pro quo government?

Marlow and the other Transparency Project volunteers may be well intentioned, but the case reinforces the perception that the group is an adjunct of the no-growth side of Santa Monica politics. Here they’re bringing this lawsuit against Gould, but they’ve ignored the most opaque shenanigans in Santa Monica politics, namely the deal that got Sue Himmelrich the endorsement of Santa Monicans for Renters Rights (SMRR) in the 2014 City Council election.

Consider these true statements and then I’ll give you a thought experiment:

  • Months before SMRR, by far the most powerful political organization in Santa Monica, would be making its endorsements in the 2014 election, Himmelrich hired Denny Zane, a founder of SMRR, a member of its Steering Committee, and the most influential individual in SMRR, to be her campaign consultant.
  • Himmelrich failed to get the SMRR endorsement at the organization’s membership convention, and then she didn’t get the endorsement from the SMRR Steering Committee when it met behind closed doors after the convention. But a month later, at another closed-door meeting, Himmelrich’s supporters on the Steering Committee made a deal with two Steering Committee members who had strong ties to Santa Monica College to give the SMRR endorsement to Himmelrich if the Steering Committee also endorsed Andrew Walzer, who was running for reelection to the SMC Board of Trustees.
  • The SMRR Steering Committee makes its endorsements, the most impactful decisions in Santa Monica politics, not only in secret, but following rules and procedures that are completely opaque not only to the public but even to SMRR members.
  • Himmelrich’s husband gave tens of thousands of dollars in campaign contributions to organizations that run campaigns that are supposed to be independent of Himmelrich’s campaign.
  • Himmelrich spent over $100,000 of her own money to get elected, explaining that she would do whatever it takes to get elected.

Here’s the thought experiment. Substitute “Pam O’Connor” for “Himmelrich” in those statements. Then imagine what the reaction of the Transparency Project would have been.

Thanks for reading.

Sprawl Repair

Santa Monica is a post-sprawl city, but vestigial remains of its origins are still around. The most obvious are its major commercial boulevards, which offer miles of low-slung, mostly nondescript but often ramshackle commercial buildings, strip and mini-malls, and surface parking lots. This land use pattern is a characteristic of sprawl, in great part because of onsite parking requirements.

The ugliness of sprawl is so commonplace that people take it for granted. It’s another aspect of what John Kenneth Galbraith described as “private affluence and public squalor.”

However, there is one boulevard in Santa Monica that is so degraded that even people who rarely accept the idea that Santa Monica might stand to change for the better in any respect acknowledge its ugliness. I’m speaking, of course, of Lincoln Boulevard from the freeway to the Venice border. (Lincoln is even uglier in Venice, because of the utility poles and because there are even fewer trees than in Santa Monica, but that’s for someone else to write about.)

The urbanist writer James Howard Kunstler, in his great screed, The Geography of Nowhere, coined the word “crudscape” to describe what the roads and highways that lead into cities and towns all across America look like, and crudscape is what Lincoln Boulevard is.

Lincoln Boulevard is so ugly (this is sounding like a Rodney Dangerfield routine) that a few years ago neighbors decided to do something about it. Some of them made a video about what they called “Stinkin’ Lincoln,” the Ocean Park Association set up a committee to look into how Lincoln could be improved, and most eye-opening of all, a young neighbor, Evan Meyer, started persuading businesses to allow artists to paint murals on their walls, in a project first called Beautify Lincoln, but now expanded to Beautify Earth.

The City’s Planning Department got involved, not only in response to all the agitation from the community, but also because of the zoning ordinance update, and now there’s a process, called “The LiNC” (from “Lincoln Neighborhood Corridor”), to remake the boulevard into something you might actually want to take a stroll on. Last Thursday evening the department hosted a workshop to get feedback on the work the department and consultants have done so far. (Materials presented at the workshop can be accessed through the LiNC website, by scrolling down to the section on “Workshops & Milestones.)

There are many reasons that Lincoln is particularly difficult to improve. To begin with, since there are so few north-south routes west of Centinela, it carries a heavy transportation load. At the workshop planners said that vehicle traffic is 50,000 a day and 8,000 riders take the bus. This is not realistically a situation for a “road diet” like Santa Monica has used on other streets, including Ocean Park Boulevard.

Perhaps the most exciting part of the developing plans for Lincoln is the return of the idea to run bus-only lanes during peak hours. The bus lanes would not require the removal of any traffic lanes because they would replace curbside parking; studies show that very few of those spaces are used during peak travel hours. At the workshop last week, and previously in surveys, residents showed strong support for the bus lanes, which would, according to planning staff, drastically improve travel times for buses and thus attract more riders.

While a road diet wouldn’t work at the present time, the City is planning on using landscaped medians to at least make the roadway greener (and in some cases provide “way stations” for pedestrians trying to cross the street). One of the questions staff had for the public last week was whether residents favored more or fewer medians. Nearly everyone at the workshop, including myself, voted for more medians, yet the planners need to be careful not to turn the boulevard into a divided highway. In certain cases, it might be better, where the center turn lane can be eliminated, to use the regained space to widen sidewalks rather than build a median.

Another problem with Lincoln is the narrowness of many of the lots that line it; the effect of narrow lots is that even if the economics of a site would justify the cost of underground parking, it’s often impossible physically to build it. Given the parking requirements, and the lack of any shared parking other than street parking, this means that in many locations it’s practically impossible to build anything new that might improve the boulevard.

Rather than wait for new development that might never happen, the LiNC planners are focusing on developing programs to encourage property owners and businesses to upgrade their current buildings. For the City’s part, planners have identified 48 locations where the City could plant more trees.

Another issue is that because the Ocean Park and Sunset Park neighborhoods, which are on opposite sides of Lincoln, were subdivided separately, few side streets on one side of the boulevard match up with streets on the other side, which means that there are few places where pedestrians can cross. At the workshop last week planners said that the average distance now between crosswalks is 1500 feet—five football fields! They have plans to add crosswalks so that the average distance is half that.

All in all, the ideas the Planning Department presented at the workshop were well received. We in Santa Monica like to celebrate our history. The Lincoln Boulevard crudscape should become it.

Thanks for reading.

U.S. Reps to FAA: make up your administrative mind

A few weeks ago U.S. Representatives Ted Lieu and Karen Bass organized a meeting in Washington where Santa Monica officials and local residents could express their grievances about Santa Monica Airport to Federal Aviation Administration (FAA) officials. The meeting had no concrete effect because the FAA had declared ahead of time that its representatives would not respond to anything that was said there, but the meeting did result in Reps. Lieu and Bass promising to press the FAA to issue an overdue decision in an administrative proceeding brought against the City by the National Business Aviation Association (NBAA) and other aviation interests.

By way of background, the case Lieu and Bass referred to involves a grant of money Santa Monica received from the FAA for airport upgrades under a contract entered into in 1994. The contract obligated the City to assure continued operation of the airport, but for no longer than 20 years, i.e., the City’s obligations under the contract would terminate no later than 2014. This is important because the City was not going to accept any money from the FAA that would tie the City’s hands beyond the expiration of another agreement with the FAA, from 1984, that required the City to operate the airport only to July 1, 2015. (The City’s obligations under the 1994 contract are often referred to as “grant assurances,” and the case is often referred to as the “grant assurances case.”)

In 2003 the 1994 contract was amended to increase the amount of the FAA’s grant by about $240,000 because work contemplated in the 1994 agreement proved to be more expensive than anticipated. The amendment, however, left the remaining terms of the contract, including its 2014 expiration date, unchanged. Nonetheless, last year the NBAA was the lead plaintiff in an FAA administrative law proceeding demanding that the FAA tell the City that it was bound, because of the 2003 amendment, to keep the airport operating until 2023, i.e., 20 years after the increase in the grant.

For months now the grant assurances case has been fully briefed. The delay maintains the status quo at the airport, which must please the aviation parties who brought the action. Santa Monica wants a decision. Any decision (for reasons I’ll discuss below).

Last week Lieu and Bass acted on their promise and sent a letter to the FAA that not only asked the agency to make up its administrative mind, but also forcefully expressed the City’s case why the 2003 amendment did not extend the contract term. (You can read the letter here.)

The decision in the grant assurances case is of tremendous importance—but not, I would argue, for what the decision might be. Whatever the decision is, it will free the City to take drastic action regarding the airport.

More background. Santa Monica has brought its own lawsuit against the FAA to determine whether a 1948 agreement requires the City to operate the airport “in perpetuity.” The case now languishes, on appeal from a procedural decision against the City, in the Ninth Circuit. But the 1948 agreement should not apply to a large parcel of land (known as the “Western Parcel”) that includes 2,000 feet of SMO’s 5,000-foot runway. If the City is not otherwise obligated (such as because of the grant assurances) to keep the airport operating, then regardless of the enforceability of the 1948 agreement the City should be able to close down the Western Parcel and reduce the runway to not more than 3,000 feet. In that event the largest private jets would not be able to use SMO.

(Important parenthetical: the FAA disputes this, and says that the 1948 agreement would be violated if the City terminated aviation on the Western Parcel. But if the FAA does bring an action against the City on this issue, it will be better to litigate first over the Western Parcel than over the airport as a whole.)

But why do I say that the actual decision in the grant assurances case is not important?

What is hamstringing the City from pulling the trigger on the Western Parcel is not whether the FAA might rule that the 2003 amendment extended the grant assurances to 2023, but rather the fact that the case is still pending. The City Council decided over a year ago that if the 2003 increase in the grant did extend the term of the grant assurances, then to resolve the matter the City would repay the FAA the $240,000. While the City has made strong arguments on both procedural and substantive grounds for why the FAA should dismiss the case, in practical terms the only issue is whether the City gets to keep the $240,000.

In a post two weeks ago, I wrote that the City need not make any strategic decisions regarding the airport until it receives the FAA’s decision in the grant assurances case. True enough, but the Lieu/Bass letter focuses the mind. Why? It’s one thing for the City to be patiently waiting for the FAA to announce a decision in the case, but it’s quite another when two members of Congress call the FAA out on their delay.

The FAA’s decision should come soon, but no matter what the decision is, the City’s strategy should be the same: announce a closing date, as soon as practicable, for all aviation operations on the Western Parcel.

Thanks for reading.