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.