Monthly Archives: October 2015

Santa Monica Airport: Going environmental

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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

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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?

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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.