Riel Politics, Part 5: When you have a process, trust it

My intention a month ago when I wrote my fourth installment of “Riel Politics,” my series of posts on the firing of Elizabeth Riel, was to wrap up the series with a fifth post in which I drew some conclusions. Other matters came up, however, I got distracted, and I am only now getting to it. In the meantime there’s been more grist for the mill: two weeks ago the County District Attorney’s office wrote the City declining to investigate whether Councilmember Pam O’Connor had committed a misdemeanor by improperly influencing then City Manager Rod Gould when he fired Riel, and then Tuesday night the City Council voted to engage attorney John Hueston as an independent counsel to, among other things, review the Riel matter.

The D.A.’s decision not to investigate O’Connor has been reported as if O’Connor escaped prosecution because of the statute of limitations (for instance, the Daily Press’s headline ran, “Statute of limitations prevents criminal charges in Riel case”), but that’s not accurate for two reasons. For one, based on the letter the D.A.’s office sent to the City it’s clear that the prosecutors didn’t consider this a criminal matter. As reported in the Daily Press, the letter from the D.A.’s office said, before getting to the statute of limitations issue, that “the hiring and firing of employees is a civil matter left to the sound discretion of the City of Santa Monica and, when necessary, the civil courts.” For two, the statute of limitations would prevent an investigation, but not necessarily the filing of charges, which the D.A. would file only if there was evidence to do so.

In fact, if I were O’Connor, I would be asking if I could waive the statute of limitations: the D.A.’s refusal to investigate was a godsend to O’Connor’s accusers, since the D.A. was so unlikely to file criminal charges. Aside from whether the matter was civil rather than criminal, there is nothing in the exhaustive record unearthed in Riel’s civil action against the City that indicates that O’Connor had any intent to have Riel fired. Intent is a necessary element of a criminal case, and even assuming O’Connor had intended to cause Gould to fire Riel, unless anyone expects O’Connor to voluntarily confess such an intent (remember that in a criminal matter O’Connor could not be required to testify against herself), the D.A. would have had no case.

As I wrote in Riel Politics, Part 3, I assume the difficulty of proving a criminal case is why the Santa Monica Coalition for a Livable City (SMCLC) hedged on its claim that O’Connor was criminally liable when it gave the City a long list of questions for an independent counsel to investigate.

As for the hiring of Hueston, the council appears to have retained someone with the right credentials. The council hired Hueston to do a preliminary analysis, for no more than $25,000; after that, Hueston will advise the council on how much deeper he believes he should go.

One unknown at the present time is whether Hueston will uncover more evidence than what was discovered in Riel’s civil action. Except for one possible new source of information, I suspect that that is unlikely. I’ll discuss that possible source in a moment; in the meantime, here are the conclusions I’m prepared to make based on the existing evidence.

As I said, there is nothing in the evidence that shows either that O’Connor pressured Gould to fire Riel or that Gould did not make the decision independently. Based on the emails, O’Connor’s goal was always not to have to work with Riel. As we know from the Levy case (a/k/a, the “playhouse” case), councilmembers have First Amendment rights to speak to staff members. Looking ahead, it’s unlikely that Hueston is going to recommend that councilmembers cease communicating with the city manager and other staff, because that’s part of a councilmember’s job.

As for what went wrong, the one clear lesson that emerges from this fiasco is that when the City has an extensive and formal application process (for, in this case, a job, but this applies to any kind of process), city staff, and in particular a city manager, needs to think more than twice before making a decision that subverts the process.

In a short period of time, from the afternoon of Friday, May 23, to the morning of May 24, 2014, Gould decided to fire Riel. Riel had been hired only after a thorough and formal process. Instead of trusting that process, from the emails it appears that Gould based an impulsive decision primarily on one answer Riel gave him to a question in a phone call late Friday afternoon. While Riel might have answered the question better (less defensively), the phone call had blindsided her: Gould had told Riel that he had a “gnarly” political issue to run by her, but he had given her no indication that the issue involved her. I would have been defensive, too.

It was the afternoon heading into a holiday weekend. In hindsight, the thing for Gould to have said to Riel was: “This is a problem. But have a good weekend, and let’s get together next week to discuss. Let’s try to find a way to make this work.” It’s possible that Gould felt badgered by O’Connor, but it’s a manager’s job to filter that stuff out.

What we don’t know, based on the evidence we have, is the role of City Attorney Marsha Moutrie in Gould’s decision-making process. From the emails it appears that Moutrie advised Gould on May 23 that Riel’s position was not protected by civil service, i.e., that she was an “at will” employee. As we know, however, from the ruling rejecting the City’s motion to dismiss Riel’s complaint, even at will employees cannot be fired wholly without cause or in violation of their constitutional rights. We don’t know if Moutrie gave Gould advice along those lines or what other advice she may have given him. It appears that Gould decided to fire Riel that Saturday morning without having had another conversation with Moutrie (he says in an email to O’Connor, Moutrie, and his deputy Elaine Polachek, that he “will” (future tense) consult with Moutrie), but we don’t know for sure.

The legal advice that Moutrie gave Gould is the one area I can see where Hueston may uncover more information, but this would require Gould, and possibly the City as a whole, to waive the attorney-client privilege. I don’t know if this can or will happen.

Thanks for reading.

SMRR: the more things don’t change, the more they remain the same

As a member of Santa Monicans for Renters Rights (SMRR) I attended last Sunday’s annual membership meeting during which 11 members of SMRR’s Steering Committee were elected. Since the meeting I have been puzzling over the question whether anything important happened.

On the nothing important happened side of the argument, the composition of the Steering Committee barely changed. If you look at the Steering Committee now and the committee that was elected two years ago, eight of the members are the same: Patricia Hoffman, Denny Zane, Sonya Sultan, Bruria Finkel, Linda Sullivan, Michael Tarbet, Roger Thornton, and Genise Schnitman.

The primary changes since then have been minor. Newcomer to Santa Monica politics Michael Soloff, husband of City Councilmember Sue Himmelrich, was originally added to fill a space vacated by Richard Tahvildaran-Jesswein after he was elected to the School Board in 2014. At the meeting on Sunday, Soloff was elected to a full term. Jennifer Kennedy, longtime SMRR staffer, was also elected, in effect replacing SMRR co-founder Judy Abdo, who was voted off. The other change Sunday was that Jackie Martin, a member of UNITE Here Local 11, was elected to the Steering Committee, replacing Pico Neighborhood activist Maria Loya as the committee’s one non-Anglo.

Not much change. However you look at it, the same core group of 60s and 70s lefties (Hoffman, Zane, Sultan, Finkel, Sullivan, Tarbet and Thornton) are still going to run SMRR. Time flies, though, and now for these aging radicals “60s” and “70s” mean something additional. SMRR is a gerontocracy and seems to have no mechanisms to bring in new or younger leadership, other than to reward sycophancy.

(In contrast, the Politburo Standing Committee of the Communist Party of China, the most powerful decision-making body in China, has a mandatory retirement age of 68. Because it’s hard to be elected to the Standing Committee before one turns 50, this acts as a de facto term limit. The Chinese do this because they’ve had bad experiences when power is concentrated in the hands of a few individuals over long periods of time.)

Though the changes to the Steering Committee were minor, at the meeting it didn’t feel like nothing happened. Just the opposite. A lot of this had to do with the build-up: the venerable leadership of SMRR went crazy at the idea that Abdo, who had incautiously invoked the SMRR brand when she campaigned for Pam O’Connor and me in the 2014 election, might be reelected to the Steering Committee, or that Leslie Lambert, a former Rent Board member and affordable housing activist from way back, might be elected.

The leadership spent SMRR money to whip up turnout. (A paid canvasser even came to my door.) Co-Chairs Patricia Hoffman and Denny Zane used the SMRR newsletter to warn SMRR members that “groups that support luxury hotels, market rate housing and bigger development in Santa Monica [were] organizing, hoping to elect a pro-development SMRR Steering Committee. We need SMRR members to turn out and turn back this challenge.” At Sunday’s meeting, a flyer from Zane and other members of SMRR leadership told members to vote for a “Slow Growth & Renters’ Rights” slate that included all the candidates except Abdo and Lambert.

It was never explained how Abdo and Lambert could constitute a pro-development Steering Committee.

It was also odd that in their piece in the newsletter Hoffman and Zane blamed shadowy pro-development groups for causing the failure of the membership at SMRR’s 2014 convention to endorse any City Council candidates. This and previous failures of the members to endorse were the result of bullet-voting, which is a genuine problem for SMRR.

But at the 2014 convention, there was no group organized by developers telling people to bullet vote. Perhaps Hoffman and Zane were referring to UNITE Here, the hotel workers union, which does support the building of hotels, but the union’s 50 or so members at the convention voted for both Kevin McKeown and me. Since McKeown and I received more votes than the other candidates, and since we represent opposite sides of the development issue, it’s hard to say that the union’s votes prevented anyone from getting the endorsement.

In fact, as anyone knows who has been going to SMRR conventions in recent years, the groups that have tried most to manipulate the endorsement process through bullet voting are the anti-development groups, particularly the Santa Monica Coalition for a Livable City (SMCLC). At the 2012 convention, SMCLC bullet votes first got Ted Winterer the endorsement. Then SMCLC voters switched to Gleam Davis; Davis got the endorsement and then no one else did, since SMCLC didn’t want SMRR to endorse Terry O’Day, Tony Vazquez, Shari Davis or me.

As for the 2014 convention, afterwards I was told, by Patricia Hoffman and others (to explain to me why McKeown deserved the SMRR endorsement but I didn’t), that the reason Kevin McKeown didn’t get the 55% needed for the endorsement was because SMCLC members had had a strange strategy to bullet vote for Richard McKinnon.

But to get back to Sunday, the meeting also seemed like something momentous happened because it was just plain sad that Judy Abdo’s old comrades cut her loose from the organization she helped found so many years ago when she was a community activist working in Ocean Park. And the exclusion of Lambert seemed like a brutal rejection of the old progressive wing of SMRR that supported reasonable development to support social services.

So maybe the meeting was important.

Or was it?

While the votes were being counted Sunday, Mayor Kevin McKeown gave a speech recounting what had happened in the city over the past year. Aside from a gratuitous hit or two at old foes, it was a good speech. McKeown fairly summarized what had happened over the past year and what the issues were and are.

Along the way McKeown pointed out that the council had recently approved two housing projects, mixing market rate and deed-restricted affordable apartments. McKeown made the case very well that both kinds of housing were needed in Santa Monica. For one thing, if our children graduating from Samohi come back with college educations, and want to live here, they’re going to need housing and they’re not going to qualify for affordable housing.

McKeown also pointed out that the City finally had a new zoning law. The new law has standards for what developers can build without entering into development agreements, which are now out of favor. McKeown didn’t make the obvious point, but developers are going to fit their proposals into these standards, to avoid development agreements, and these projects, like the two apartment buildings McKeown spoke about, will be built.

This will, of course, infuriate the folks who believe they elected councilmembers like McKeown, Himmelrich and Ted Winterer (in part by getting them SMRR endorsements) for the purpose of stopping development. If the SMRR leadership believes these folks will be satisfied with the election of a “Slow Growth & Renters’ Rights” slate to the Steering Committee, they are mistaken. You already see this with the Residocracy LUVE initiative.

So, in the end, nothing happened.

Thanks for reading.

Santa Monica Airport: Going environmental

When it comes to the Santa Monica Airport (SMO), what a difference a few years, a lot of community action, and a decisive election have made. Four years ago, in the aftermath of losing its battle with the FAA over large jets, the City of Santa Monica was gun shy about the airport. It initiated a “Visioning Process” for the airport that ended up envisioning nearly everything that might happen at SMO except the vision that most residents concerned about the airport wanted: shutting it down.

Fast forward. Two months ago the City Council listed closing SMO as one of the three major priorities for the City. Last week the City took out full-page advertisements and created a website designed to mobilize community action against the Federal Aviation Administration (FAA) for the purpose of doing that. Tomorrow night, the council will act on recommendations from staff to start a process to curtail environmental impacts of airport operations until it can be closed.

All of this is in the context of continuing litigation to establish or confirm the City’s right to close all or part of the airport. There are two cases. The City initiated one against the FAA in 2013 to have the courts declare that the City now has the right to close the whole airport. (That litigation is tied up in a procedural appeal in the Ninth Circuit.) Airport interests brought the other case—it’s a FAA administrative proceeding seeking to extend the City’s obligation to operate the airport under a contract with the FAA from 2014 to 2023. (In that case, the FAA was supposed to give its decision months ago, but has for the third time delayed the decision.)

A city government that was not long ago trying to rationalize every problem SMO creates is now throwing every argument and strategy it can at the FAA to close the airport. It’s particularly notable that the City is working in concert with the two U.S. representatives, Ted Lieu and Karen Bass, whose constituents are affected most by the airport; this represents a big change from a few years ago when it was hard to get the local congressional delegation interested.

It is also notable that the City is making environmental arguments against the airport that it had not made before. These arguments, which have been championed for years by Los Angeles resident Martin Rubin and his organization, Concerned Residents against Airport Pollution (C.R.A.A.P.), potentially will allow the City to make an end run around at least the strictest aspects of FAA control.

This environmental argument is mostly what tomorrow night’s hearing is about. Staff is proposing various measures, including moving to require that all fuels sold at the airport be low lead or unleaded for prop planes, or biofuels for jets; requiring that current airport lessees begin mitigation of contamination of premises they have occupied; and moving to have the City take over fuel sales. Finally, staff wants authority to begin developing plans for a cap on total emissions generated by the Airport, something that could ultimately provide overall limits on airport operations.

Of course, the goal is not to operate a cleaner airport, but to close it and build a park. But making the airport operate more cleanly not only has intrinsic benefits, for so long as the airport is operating, but also increases pressure on the aviation businesses there.

All of this is radical change from where the City was not long ago. The sea change began after the 2012 election where nearly all the candidates supported closing the airport, and obviously picked up with the 2014 election when Measure LC won handily, defeating the aviation industry’s Measure D 60% to 40%. Also, one has to credit the hiring of new City Manager Rick Cole, who is taking a much more dynamic approach to the airport and its future than did his predecessor, Rod Gould.

Tomorrow night City Council should adopt all of the staff recommendations, but it should try to go even farther. For one thing, it should have staff report back on the possibility of ending all fuel sales at the airport and what this would mean, both legally and practically. Another thing the Council should do—at least I don’t see why the City can’t do it—is to terminate all leases with flight schools. The numerous flight schools at SMO are responsible for a large proportion of takeoffs and landings, and given the residential areas around the airport, it’s a dangerous place to learn to fly. I haven’t heard of any FAA regulations that require airports to have flight schools.

Without going too deep into the controversy, there is a group of anti-airport activists who believe the City can go much further than what staff proposes—and close the airport now. It’s impossible to imagine how this could be done given that the City is engaged in ongoing litigation over what its rights are, especially given that other parties brought one of the cases against the City. Although in my opinion these activists are correct about what the City has the right to do, when they ask the question, “why are the jets still flying,” it’s as if they never heard the words “contempt of court.” Judges don’t like it when litigants go outside the process.

In law school they teach that there is no right without a remedy. With respect to SMO, the City of Santa Monica is working on establishing and creating its remedies, both in the courts and on the ground.

Thanks for reading.

Riel Politics, Part 4: Getting to $710,000

One question people keeping asking about the firing of Elizabeth Riel is why the City Council agreed to pay so much to settle her claim: $710,000, more than four times what would have been her annual salary. Don’t expect a definitive answer, since the council can make decisions about litigation in closed session, but the record gives a reasonable basis for trying to understand what the thinking was.

While the cost of litigation and similar factors can have an impact on settlement negotiations, given that the settlement would undoubtedly be embarrassing, which it was, it’s likely that the City agreed to pay Riel all that money only because her case was strong and a verdict could have cost far more that $710,000. No doubt the issue was punitive damages. Riel’s claim was for wrongful termination based on her being fired in violation of her First Amendment rights. That would be a violation of public policy, and terminating a job in violation of public policy, or in any way violating an employee’s constitutional rights, can leave the employer at risk of paying substantial punitive damages.

City Council and its lawyers didn’t need to guess whether Riel had a good case. Federal District Court Judge Beverly Reid O’Connell made that abundantly clear in her ruling in September 2014 denying the City’s motion to dismiss Riel’s complaint. Judge O’Connell acknowledged that government employers may in appropriate circumstances limit employees’ First Amendment rights, but in explaining what the standards were for keeping politics out of public employment she in effect told the City that its defenses were limited.

Public employees routinely give up First Amendment rights; consider the Hatch Act at the federal level. But there have been many cases involving the First Amendment rights of public employees, as it’s not a small matter to give up those rights. Legal standards have developed out of these cases, and Judge O’Connell reviewed those standards in her ruling.

Judge O’Connell held that Riel, as plaintiff, would first have to prove three things: that she suffered an adverse employment action; that she had engaged in constitutionally protected speech; and that her protected speech motivated the adverse employment action. Once Riel would have proved these three factors (which would, in fact, be easy for her to do), she would establish a prima facie case for wrongful termination. At that point the burden of proof would shift to the City, which would have to prove that its legitimate administrative interests outweighed Riel’s First Amendment rights.

In other words, there’s a balancing test, in fact one so well established that it has a name: the Pickering test. According to Judge O’Connell, the “balancing test recognizes that government entities have broader discretion to restrict a public employee’s speech than a citizen’s; nevertheless, any restrictions must be directed at speech that has some potential to affect the entity’s operations.” (Internal quotation marks, some punctuation, and citations omitted.) The public employer, however, cannot simply declare that its administrative interests outweigh the employee’s rights: the administrative interests at stake cannot be speculative. This is where Santa Monica got into trouble in the Riel case.

To step back for a moment, the job Riel was hired for, communications director in the City Manager’s office, requires interfacing directly with all the elected members of the City Council. It is a politically sensitive job, and the City should be able to require whoever holds the job to stay out of local politics. (One way we know this is that when Councilmember Kevin McKeown, whose campaign for reelection Riel had worked on in 2006, heard from City Manager Rod Gould that Gould had hired Riel, he immediately told Gould that he still had Riel’s photograph on his website from the 2006 campaign. McKeown asked Gould whether he should remove it; McKeown quite properly did not want anyone to think that Riel was partisan.)

So you ask, if the job was politically sensitive, why didn’t the City take the case to trial to show that, and to argue that Riel should have been disqualified because of her past partisanship? The answer to that question is also in Judge O’Connell’s ruling. Even if the job required political neutrality, the judge emphasized that the City still had the burden to prove, with evidence, that Riel herself couldn’t do the job: “[t]he allegation that [Riel] would not support, or at least would appear unable to support, the City’s leadership and management is speculative.” Riel had assured Gould that she could do the job; he couldn’t simply declare that she couldn’t.

Perhaps if when the City had advertised the job the notice had specifically stated that applicants had to be non-partisan, and had spelled out the reasons why, then the City would have been able to prevail. But the City hadn’t done that. Riel, who, based on her deposition testimony, no longer considered herself to be political (it had been six years since she had been politically active in Santa Monica), applied for the job and got it on her merits. Establishing criteria for a job in advance and summarily firing someone before she could prove herself are two different things.

I can only assume that after reviewing the evidence unearthed during the discovery phase that followed Judge O’Connell’s ruling (i.e., the emails and the deposition testimony), the City’s lawyers concluded that they could not prove that Gould when he fired Riel had real evidence that she could not do the job, and advised the City to make the best deal it could.

And that’s how one can get to $710,000.

Thanks for reading.

Riel Politics, Part 3: Going beyond the record?

In the wee hours last Wednesday, after a long City Council meeting dealing mostly with the crucial issue of the minimum wage, the council spent more than an hour agreeing to hire independent counsel to review the firing of Elizabeth Riel. This is well and good, as the episode was a costly fiasco, and one hopes the independent counsel will identify lessons to be learned to avoid such calamities in the future. (The counsel will also make recommendations about how to enforce the Oaks Initiative, the law that restricts what relationships city officials may have with persons or entities that they bestow benefits on.)

The independent counsel’s review will take place concurrently with a review by the L.A. County District Attorney’s office to see if any criminal laws were broken. According to City Attorney Marsha Moutrie violations of the City Charter are misdemeanors, and if the D.A. determines that there is evidence that then-Mayor Pam O’Connor violated the charter by directing then-City Manager Rod Gould to fire Riel, O’Connor could face a criminal charge.

While these reviews and investigations might have occurred anyway (and at least the City review should have), they stem directly from charges that the Santa Monica Coalition for a Livable City (SMCLC) started making in July after the City settled with Riel for $710,000. Give SMCLC credit, they were the first to obtain the relevant documents through a document request to the City, and for a while they were the only outside parties with the documents. In August, not long after receiving the documents, SMCLC announced its conclusion that O’Connor had “relentlessly pressured” Gould to fire Riel.

By the time the City Council voted last week to authorize the outside review, more people had had the opportunity to review the evidence, however, and SMCLC started hedging. (For my review of the evidence, see Riel Politics, Part 1.) For instance, the Lookout quoted Diana Gordon of SMCLC as saying the outside review would have to “go beyond the record in the Riel lawsuit,” because it (the record) “was developed for a different purpose.” I.e., SMCLC was admitting that the record unearthed so far did not show that O’Connor had told Gould to fire Riel.

Similarly, last week when SMCLC presented the council with a list of nine questions that the group wanted the independent counsel to review, only one of the questions directly concerned O’Connor. The phrasing of that question, which included another caveat about the criminal investigation (“Did Mayor Pam O’Connor improperly intervene in and attempt to influence the City Manager’s decision to fire Elizabeth Riel? (This differs from the criminal matter concerning whether she violated [City Charter] Section 610 beyond a reasonable doubt.)”) is further indication that SMCLC has doubts that the evidence will show a violation of the charter.

But it turns out O’Connor is just an appetizer. The other eight questions (in fact, counting sub-questions, there are at least 14 other questions) concern the conduct of staff—not only Gould, but also “senior staff whom Mr. Gould sought advice from” and City Attorney Moutrie. These questions extend to, among other things, the process used for the hiring of Riel’s replacement, the quality of Moutrie’s legal advice to Gould, and highly speculative questions like whether the matter could have been settled sooner. (For that last question, does the SMCLC intend that Riel and her lawyers be put under oath to tell the independent counsel what they would have settled for and when?)

If words like “fishing expedition” or “Benghazi” are coming to mind, there’s an irony to that. Riel’s association with SMCLC, which ultimately sank her employment by the City, began in 2006 when the then newly-formed SMCLC launched a fishing expedition against City staff. This was in connection with the plans of Macerich to re-do Santa Monica Place with three tall buildings. The plans never had a chance to be approved (for various reasons, including that the City would have had to spend too much money on new parking), but SMCLC feared the worst and assumed that the plans could not have been developed without improper connivance between the developer and City staff.

SMCLC made a big deal about suing the City to get copies of emails and other documents. The city ultimately not only produced the documents but also had to pay the group’s $36,000 in legal fees. After all that, however, SMCLC never released any documents showing the malfeasance they assumed had been committed. Apparently there were none.

As I’ve written before, SMCLC has been all about power. Its well-heeled and sophisticated leadership condescends to the political process in Santa Monica and acts as if everyone involved (or nearly everyone—they do have their favorites) must be incompetent and/or corrupt. The group has always had a special animus against O’Connor, who culturally—she’s the daughter of a Chicago cop, and doesn’t hide it—must epitomize everything that the SMCLC’s fastidious and pious leadership doesn’t like about government.

O’Connor, who has no money of her own, hasn’t helped herself by having to finance her campaigns with contributions from business interests, including developers. She doesn’t suffer fools too well, either. All this has made her prone to attack, but for 20 years O’Connor has been one of the most respected political leaders in Southern California, serving on and often chairing numerous powerful regional boards that you can’t get elected to unless you have the respect of officeholders from other cities. It’s ludicrous that she gets picked on by a group of self-appointed watchdogs like SMCLC.

Having said that, the City didn’t have the right to fire Elizabeth Riel, and I’ll discuss why not in the next installment of Riel Politics.

Thanks for reading.










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.