Last fall I wrote a series of five articles (which start here) about the firing of Elizabeth Riel by the City of Santa Monica, in which I analyzed the documents and depositions that came to light after the City agreed to pay Riel $710,000 to settle her lawsuit for wrongful termination. In the aftermath of the settlement the City Council engaged a lawyer, John C. Hueston, and his law firm, to review the matter (as well the operation of the Oaks Initiative) and report back with findings and recommendations, so as to avoid in the future debacles like the Riel firing.
Hueston released his report last week. Given all that I had written about the Riel firing, I looked forward to reading it, not only to read another analysis, but also to see whether Hueston had been able to unearth information beyond what was available from the Riel litigation. I was particularly interested in whether Hueston would be able to interview City Attorney Marsha Moutrie. Moutrie had advised City Manager Rod Gould when he decided to terminate Riel’s employment, but her advice to Gould had been kept out of the court proceedings because it was attorney-client privileged.
Apparently Moutrie’s clients (Gould and/or the City Council) waived the privilege, because Hueston interviewed Moutrie. According to his report (pages 18-19; all references in this post are to the report), Moutrie said that she had conducted legal research when asked by Gould whether he could terminate Riel’s employment. She recalled telling Gould that Santa Monica would have a defense if he did so, based on three points: (i) Riel would be a “policymaker” and thus subject to being terminated on “at will;” (ii) Riel had not yet started her employment; and (iii) Riel had failed to disclose her prior involvement in local politics.
The fact that Gould had received this advice would seem to be helpful to anyone trying to defend Gould for firing Riel. However, Hueston’s report is somewhat ambiguous on what Moutrie told Gould. For one thing, Hueston reports that Moutrie told Gould that Riel should have informed Gould of her past involvement in local politics, but then, in the same paragraph, Hueston reports that Moutrie’s personal belief was that Riel was “‘arguably honest’” in her resume and application for the position. It’s unclear from Hueston’s report whether this “personal belief” was retrospective, looking back on the whole record, or contemporaneous with the advice Moutrie was giving Gould.
More interesting is whether Moutrie advised Gould on the relevance of Riel’s First Amendment rights, since it was those rights that ultimately were the basis for Riel’s wrongful termination lawsuit. Gould, according to Hueston, says that Moutrie specifically advised him that firing Riel would not violate her First Amendment rights. Unfortunately Hueston doesn’t say whether Moutrie confirmed this.
In sum, it appears that Moutrie gave Gould at least enough legal comfort for him to proceed with terminating Riel’s employment, advice that turned out to be bad advice when the judge in the case rejected, largely on First Amendment grounds, the City’s motion to dismiss Riel’s suit. Being a lawyer myself, and one not unfamiliar with having to give clients answers to complicated legal questions in a short timeframe, I am sympathetic with Moutrie’s predicament, at least when it comes to quickly interpreting complex laws. What I really wish is that she had been able to slow Gould down; this was all taking place at the start of a long Memorial Day weekend, and I wish she had said something like, “Rod, let me get back to you next week.”
That’s because, whatever Moutrie’s advice was, and to whatever extent Gould followed it (at another point, Hueston reports Moutrie’s telling him that Gould didn’t always follow her advice), there’s nothing in Hueston’s report to absolve Gould from overreacting and panicking when cooler heads might have prevailed. Gould had on his hands one unhappy council member, Pam O’Connor, but as Gould himself told Hueston (page 17), “one in [Gould’s] position” had to be “numb to such speech.” What the record shows is that Gould himself got caught up in the emotions of the moment. He fired Riel after he himself grew angry over what he perceived to be her evasions, when he should have been dialing down O’Connor’s (and his) emotions.
But the issue of exactly how Riel came to be fired, is, in the minds of most people involved in Santa Monica politics, secondary to the separate issue of whether O’Connor had acted improperly in complaining to Gould about the hiring of Riel. Did she, by doing so, violate the City Charter prohibition on council members interfering in hiring decisions?
As has been reported, Hueston is critical of O’Connor, finding that:
A best, Ms. O’Connor showed bad judgment in wording her e-mails in a way that had the foreseeable potential of influencing the City Manager’s hiring decision. At worst, Ms. O’Connor consciously and intentionally attempted to influence the City Manager’s hiring decision. In either case, Ms. O’Connor showed a failure to understand the limitations of her role as a councilmember in Santa Monica city government.
Hueston bases his criticism primarily on emails from O’Connor that began with her third to Gould. In her first two emails, O’Connor didn’t go much beyond telling Gould that she wouldn’t work with Riel and would do her own public relations when representing the City if he couldn’t find someone else to work with her. In the third email, however, after O’Connor’s internet research found connections between Riel and attacks on O’Connor, and after Gould kept telling her that everything would be fine, O’Connor became angrier and at least some of the anger was directed at Gould. O’Connor told Gould that the matter was going to become a bigger issue in the community, because she would let other people know about it and it would hit the press.
In Hueston’s view (page 25), these emails “can only be described as threats meant to influence Mr. Gould.” (And Gould “admitted” to Hueston that he, at least, interpreted them as threats.) As such, according to Hueston, they were at least indirect requests for the firing of Gould, and as such violated the Charter.
There’s no question that O’Connor went off the rails in her later emails, but I’m not convinced by Hueston’s analysis either. Hueston is by training and instinct a prosecutor, and his use of phrases like “can only be described as _______” reminds me of the rhetorical devices prosecutors use when trying to get indictments when they don’t have the evidence to state simply, “it was a _______.” I’ve read all the emails, and what I see is someone, O’Connor, getting angrier and angrier (not only because of what her internet research was turning up but also because Gould seemed to be patronizing her), and venting about it, but not someone with any purpose at all. O’Connor is upset, but there’s nothing in the emails that indicate she thought she had the power to influence Gould to change what she obviously considers a done deal. If she wanted to influence Gould to fire Riel, she wouldn’t be threatening Gould, she’d be offering strategies.
I also don’t buy Hueston’s interpretation of what happened once Gould told O’Connor that he was leaning towards terminating Riel’s employment. At that point O’Connor, as Hueston puts it (page 25), drops “her aggressive tone,” and Hueston finds this to be “further evidence” that O’Connor’s intention was to pressure Gould to fire Riel. But I don’t think so. An equally valid explanation (more valid in my opinion) would be that at that moment (a moment that in fact came the next day because O’Connor had in the meantime flown to Barcelona), it hit O’Connor that perhaps she’d gone too far, as in “Yikes, what have I done?”
I want to say that unlike Hueston I haven’t spoken with O’Connor about the Riel matter. I do know O’Connor, however, after 20 years of having one connection or another through Santa Monica politics. I believe my analysis is consistent with the personality I know her to have.
So, did O’Connor screw up? Yes, no question, she should not have let her emotions about Riel’s political involvement get to her. (But as we see everyday, emotions are hard to separate from politics.) But did she violate the charter? I don’t see that, unless we want to interpret the Charter so strictly as to prevent council members from making any comments about the performance of staff. Politics are meant to be “hot.” I don’t want to lose noisy and opinionated politicians because City Managers can’t keep their cool.
Thanks for reading.