Tag Archives: Diana Gordon

Hueston: you have a problem

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In my post last week I wrote about certain aspects of John Hueston’s report to the Santa Monica City Council on the Elizabeth Riel firing and the Oaks Initiative. Last Tuesday evening Hueston presented his report to the council. There was a public hearing where members of the public gave their views, mostly about O’Connor’s culpability in the firing of Riel or, alternatively, her virtues as a longtime councilmember and regional leader.

As for Hueston’s report, he makes some good recommendations. For one, Hueston recommends that the City use, except in unusual circumstances, a formal interview process when hiring “at will” (i.e., non-civil service) employees, and identify ahead of time whether a position is politically sensitive, to allow questions in the interview process about applicants’ histories of political activities specifically relating to councilmembers with whom they may need to interact. The latter recommendation more or less tracks the law as Federal District Judge Beverly Reid O’Connell described it in her rejection of Santa Monica’s motion to dismiss Riel’s complaint; she said that if political history (or lack thereof) is going to be factor in whether someone is going to be hired, that has be made clear as part of the job description.

Moving onto the Oaks Initiative, Hueston made an excellent and common sense suggestion that enforcement of the law be entrusted to an attorney in the Criminal Division of the City Attorney’s office. Although under the City Attorney’s purview, the Criminal Division nearly always operates independently and in any case does not give legal advice to the City Council. Having a designated attorney in the Criminal Division, who would not report to the City Attorney on Oaks matters, would seem to solve the problem of the City Attorney having conflicts of interest when investigating councilmembers.

In last week’s post about Hueston’s report I wrote about how Hueston was able to interview City Attorney Marsha Moutrie and shed more light on the interplay between her and City Manager Rod Gould preceding Gould’s decision to fire Riel. Hueston also interviewed people who had been involved in the Riel hiring process, but who had not given depositions in the lawsuit. Information from them has given us a better understanding of what Riel’s mindset might have been when, in the fateful phone call of May 23, 2014 with Gould, he asked her to explain why she had not revealed her past political activities in the interview process. It was her answer to Gould’s question, namely that she had disclosed her political past, that angered him and led to her being fired.

Why did Riel answer that way? The answer now seems to be that Riel had in fact disclosed her past political activities, or had at least disclosed enough to believe in good faith that she had been open about them. On page 13 of his report Hueston recounts testimony from a member of the panel that interviewed Riel for the job (a panelist who requested anonymity) that this panelist supported Riel for the job precisely because Riel had been upfront about her past involvement in Santa Monica politics (and that this showed she was comfortable with politics). Although the panelist could not recall if Riel’s disclosures extended to disclosing that she had worked on campaigns for councilmembers (or against them, as in the case of O’Connor), this could easily explain why Riel had in that phone call with Gould told him that she had disclosed her political activities.

It’s too bad that Gould did not know about what Riel had disclosed in the interview process. If he had, he might have been able to diffuse O’Connor or at least not become angry himself. As it is, again this is evidence that rule number one should be that if there is a process, then trust it.

One gripe I have about Hueston’s report is that he didn’t interview Riel, who would have been able to tell Hueston what she disclosed during the hiring process. The reason Hueston gives is that Riel requested compensation for her time, as well as that her attorney be paid to attend the interview. In Hueston’s opinion he already had enough testimony from Riel from her lawsuit deposition and the City didn’t need to spend the money. In my opinion, Riel’s requests were perfectly reasonable, and I don’t understand why Hueston (or if he didn’t have the authority, whoever did) didn’t authorize the expenditure. The City is paying something like $400,000 (or more) for Hueston’s investigation; it would have been worth a few thousand dollars more to hear from the person who was at the center of the controversy, particularly with respect to questions that didn’t come up in her deposition.

Alas, the upshot is that Riel comes across as mercenary, which is unfair. As I said, her requests for compensation and for her lawyer’s presence in the interview were reasonable. After enduring litigation, even if you prevail, there’s no reason to be philanthropic with the other side, and you certainly shouldn’t talk to them without your lawyer. I haven’t agreed much with Diana Gordon, of the Santa Monica Coalition for a Livable City, about the Riel controversy, but Gordon was 100% correct when she spoke Tuesday night about how in all the uproar about O’Connor and Gould, we tend to forget what a victim Riel was.

While I would never call City Attorney Marsha Moutrie a victim, she is being victimized by a growing meme that she was grossly incompetent in not advising Gould that he would violate Riel’s First Amendment rights if he fired her. As I said in my post last week, Moutrie’s advice that Gould could fire Riel because she was an at-will employee turned out to be bad advice when Judge O’Connell rejected, mostly on First Amendment grounds, the City’s motion to dismiss Riel’s complaint. There’s nothing, however, in O’Connell’s ruling, the only legal ruling on these questions I know of in the case, that indicates that the issue was cut and dried.

But that’s not according to how the story is being spun. At Tuesday’s City Council meeting a resident said that according to the ruling any “first year law student” should have known that Gould would violate Riel’s free speech rights if he fired her. That was just the start. By the time, a little later in the evening, that Councilmember Sue Himmelrich was giving her two cents, she said (quoting from the Daily Press’s coverage), “I agree that the federal court did say that even a first grader would know this was a violation of her federal rights.”

I know that all first graders in Santa Monica are brilliant, but this seems to take hyperbole to a new level. In fact, Judge O’Connell had to use 19 closely reasoned, single-spaced pages to conclude that notwithstanding the basic rule that in public employee First Amendment cases public employers have “wide discretion and control over the management of their personnel and internal affairs,” the ultimate burden of proof, after Riel had satisfied a preliminary threshold, was on the City to prove that Riel’s rights had not been violated and the case should go to trial. Even following the rule that on a motion to dismiss everything in a complaint must be viewed in the plaintiff’s favor, O’Connell’s decision was not a slam-dunk. (For more on Judge O’Connell’s ruling, see my post from Oct. 16.)

I word-searched O’Connell’s ruling for “first year” and “first grader” and didn’t come up with any hits. Someone please tell me if there is another ruling in the case I don’t know about, and I’ll correct myself, but until then I’ll attribute Moutrie’s bad advice to human fallibility and the complexity of the law, rather than to not having the legal knowledge of a six-year-old.

Thanks for reading.

“Are we there yet?”

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With the Santa Monica City Council’s action last week approving the new zoning ordinance, leaving only a pro forma second reading to finalize the new law, it looked like eleven long years of planning would soon come to an end. The light at the end of the tunnel was finally more glare than glimmer.

Slow down. We’re not there yet. Just when you think it might be safe for Santa Monica government to spend more time and resources on something other than responding irrationally to bad traffic, the anti-development group Residocracy is contemplating, dare I say threatening, a referendum on the zoning ordinance.

That glare that looked sunny turns out to be oncoming headlights.

According to a Lookout article headlined “Santa Monica Slow-Growth Groups look to Public Vote on Development Issues,” Residocracy is polling its members on whether they want to take to the street to gather signatures to overturn the new zoning law, and the group’s founder Armen Melkonians expects they will say yes. (Who’s going to say no?)

Melkonians told the Lookout that the new zoning, though approved by the council’s anti-development majority, “‘still creates density.’” “‘Are we going to grow Santa Monica,’” he asked, “‘so it doubles its population?’”

Well, the answer to that question is no, or at least not until a few generations or even centuries have passed. I mean, even if Santa Monica adds all of the 4,955 housing units predicted under the LUCE by 2030, that’s only about a 10 percent increase in the city’s stock of housing units. That’s unlikely even to result in a 10 percent increase in population, however, because for decades the average number of people living in each housing unit in Santa Monica has been in decline.

Even if—as Melkonians fears—Santa Monica should add more than 4,955 units, say, twice that many, by 2030, a 20 percent increase, and even if each percentage point increase in units translated into a percentage point increase in population, well, can someone do the math? How long would it take to double the number of housing units if there was a 20 percent increase every 20 years?

In any case a while, but any significant population increase is unlikely. To give some perspective, Santa Monica’s population in 1970 was 88,289. In 2010, after decades of purported “massive overdevelopment,” it was 89,736. (I know that estimates since the 2010 census have added a few thousand more residents, but the history of those population estimates is that they get debunked when the decennial census comes around. The estimates focus on the number of housing units, but historically haven’t take into account how many young Santa Monicans leave town each year rarely to return.)

Okay, I get it—surely Melkonians was being rhetorical. But that’s what happens when you start asking people to sign petitions. If the first casualty of war is truth, then the first casualty of a local referendum campaign must be any sense of reality.

Residocracy isn’t the only group talking about going to the voters. The Santa Monica Coalition for a Livable City (SMCLC), Santa Monica’s more establishment, less populist, anti-development group, is considering a Version 2.0 of the “Residents’ Initiative to Fight Traffic (RIFT), their unsuccessful 2008 initiative. SMCLC wants to give voters a veto over “large projects.”

Based on an open letter to supporters that SMCLC leadership published last week, it does not appear, however, that SMCLC wants to join in an effort to overturn the zoning ordinance. For now at least, based on the letter it appears that SMCLC leadership is celebrating the new law, and especially the reductions in the scope of the LUCE, as the product of the anti-development majority SMCLC helped elect last November.

This makes sense, since the SMCLC leadership has long ties to councilmembers Kevin McKeown and Ted Winterer and they view the new zoning law as an achievement.

But indications are that SMCLC wants to bring back a new version of RIFT. SMCLC has never trusted the City Council or planning staff, and according to the letter to supporters, “large projects must be subject to a resident vote.” SMCLC’s co-chair of SMCLC, Diana Gordon, told the Lookout that the group would support a measure like RIFT. SMCLC touted the fact that RIFT garnered more than 18,000 votes in 2008. (The problem for SMCLC was that nearly 51,000 Santa Monicans voted that year.)

Of course, as Melkonians acknowledged to the Lookout, the point of having votes on developments is to scare developers away. While according to him, “only the best projects would go through,” the opposite is true. Developers and landowners will build to the lowest common denominator, slicing and dicing their projects to slip under whatever the voter-approval threshold is. It’s strange to hear a group like SMCLC, which I believe honestly wants better projects to be built, promote voter control as a way to get them.

SMCLC blames RIFT’s loss in 2008 on, as Gordon told the Lookout, its being “‘outspent in a deceptive opposition campaign.’” “Deceptive” is in the eye of the beholder, but the last several elections, notably the votes in 2014 on Measures D and LC, if anything show that money doesn’t mean much in Santa Monica elections. Beyond the merits of any thing or person on the ballot, endorsements are what count. In 2008 most of the well-respected elected officials in and around Santa Monica opposed RIFT, and SMRR was neutral.

Promoters of new anti-development referendums, whether to overturn the zoning law or to make developments subject to popular vote, would no doubt base their campaigns on their conviction that the views of voters have changed.

We’d find out.

Thanks for reading.

Reoccupying Paper Mate: there go the best laid plans

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Re-using old buildings is a good thing; so why is it bad for Santa Monica that a new buyer of the Paper Mate factory is going to turn it into offices? It boils down to the three eternal verities of real estate: location, location, location. The factory sits on a crucial piece of land.

But before I get into that, if for you traffic counts are the most important metric for urban planning, stop reading now. You’re going to be happy with the new project, at least as it compared to the Hines project. Based on the EIR for the Hines project, turning 200,000 square feet of old factory into offices will generate (by 2030) approximately 1,900 car trips a day; the final Hines project was projected to generate 6,700.

No one, however, is going to notice the difference. There’s already about 2,000,000 square feet of commercial development in the immediate area and the 26th Street freeway ramps attract traffic from the eastern portion of Santa Monica and down into Venice and Marina del Rey. The existing traffic counts on Olympic and 26th Street are in the tens of thousands without Paper Mate.

Further, nearly half of the Hines project was going to be housing. Very little of the traffic associated with new residents would have been added to the afternoon outbound commuter traffic that drives us Santa Monicans crazy. With respect to commuters, you’re talking about a difference of 200,000 square feet of commercial development between the Hines project and the new one. Santa Monica has more than 10 million square feet of offices.

Moreover, Hines was going to pay for mitigation measures at many affected intersections. The new owners won’t need to do that because they have avoided anything that would subject their project to discretionary development review (although employers in the new project will have to implement some traffic demand management (TDM) procedures).

So, no surprise, traffic around 26th and Olympic will be miserable for a long time. What are we losing that was in the old project? (And, yes, I know, the old project could have been better.)

It’s hard to prove a negative—that what might have been would have been better than what we’re getting. There is also, the question of metrics: many Santa Monicans couldn’t care less about what we might have lost. They already have their jobs, or retirements, and housing, and they don’t care what happens to the old industrial areas that they have no reason to enter anyway. People who might have lived on the Paper Mate site won’t be heard from. (Some in the SMRR leadership will still wring their hands about the jobs/housing imbalance, but what’s it to them? Potential residents don’t vote.)

But there was a reason that people like Kevin McKeown pooh-poohed the idea that Hines would “walk away,” or that Diana Gordon, of the Santa Monica Coalition for a Livable City, assured us that Hines was “posturing” when the developer said it could reoccupy the factory. (This reminds me of the last big development battle in Santa Monica prior to Hines—over the downtown Target in 2001. Back then traffic-fearing residents killed what would have been one of the country’s first City Targets, but told us Target would be back with a plan to build somewhere else. Fourteen years later people are still driving outside of the city to buy a toaster, and who is it who complains loudest that there’s nothing in downtown that serves residents?)

But back to Paper Mate. Everyone who thought seriously about what should be built across the street from Bergamot Station (and I guess that includes McKeown and Gordon) knew that the old factory should be replaced with a development that, using the language the City used to express the public purposes of the project, created “a well-designed and financially feasible gateway project containing a complete community.”

We’re not getting that. Although it’s possible that people might be able to walk through the project (although the current drawings indicate that the site will be fenced in), and it’s possible that the City could build a sidewalk along the north side of Olympic connecting 26th and Stewart, there’s not going to be any plaza making the corner a gateway between the station and a new, active district. There won’t be any vehicles passing through the site either: one of the most beneficial aspects of the old project was the introduction of a street grid, as shown in this map, much of which was dependent on cutting streets through the Paper Mate superblock. A grid allows local traffic to be dispersed, taking pressure away from crowded arterials.

Map showing future streets planned for area in and around Paper Mate site

Map showing future streets planned for area in and around the Paper Mate site

But the biggest negative impact is that without the new streets, the LUCE and the Bergamot Area Plan, for most of the old industrial areas, are dead.

To understand why that’s bad, think about what LUCE is, or was. In 2004 Santa Monica began to update its land use and circulation plans to control inevitable pressures for growth. After six years of conscientious effort, the City adopted a well-coordinated plan to direct growth to designated areas (downtown, the old industrial areas, and boulevards) where it would have the least impact on residents. The LUCE is the plan that critics of development say Santa Monica doesn’t have. Turning the Paper Mate site into a gateway was crucial. Location, location, location.

Those development pressures haven’t gone away. Now, however, after the Hines debacle, if you’re a developer with land in the old industrial areas, or along the boulevards, why propose building anything with public amenities, anything approaching a “complete community,” with housing and new streets, anything that achieves the goals of the LUCE, when you can make plenty of money repurposing an old warehouse or factory, or building a 32-foot high retail box?

Thanks for reading.

The pipes, the pipes, are calling: “Maintain us!”

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I can’t guarantee that I heard every word uttered during Tuesday night’s City Council hearing on water rates, but two words that I didn’t hear were “deferred maintenance.” Too bad, because that’s what this is mostly about. Yes, we are doing good by using less water, and yes, that paradoxically causes a cash crunch for the Water Division that means we need to pay more for the water we do use. That loss in revenues, however, only accounts for a portion of the deficits the Water Division is facing.

The fundamental reason we need to raise water rates is that our system is aging and needs fixing. Even if we weren’t conserving water, rates would need to increase substantially to pay the costs of deferred maintenance.

The numbers are that with only rate increases equal to inflation (the baseline), the projected loss in revenue from 2013 levels over the next six years (through fiscal year 2020) is about $14.3 million. Over the same six years, the Water Division’s capital needs are projected at about $37 million. (The data comes from the Kennedy/Jenks “Water Rate and Revenue Plan” presented to City Council this month.) If you review the Water Division’s $37 million capital budget for fiscal years 2015 through 2020 (Table 4 in the Kennedy/Jenks report) you’ll see that relatively few bucks are for special projects, like a new booster pump station. Most of the expenditures are for maintenance, such as water main replacements and similar improvements, along with routine costs like vehicles and sidewalk repairs.

As has been typical with public infrastructure in America for the past 40 years, Santa Monica’s water system has been starved for maintenance because voters don’t want to pay for what they’re wearing out. Cast iron pipes are now nearing a century of use and need to be replaced. We shouldn’t be surprised. Santa Monica had a major water main break in 2002 and a serious sinkhole in 2007.

City of Santa Monica photo

City of Santa Monica photo

Unfortunately I wasn’t surprised, watching the video of Tuesday’s hearing, to hear members of my own Baby Boomer generation complain about having to pay more, and call for a bond issue to pay for this catch-up maintenance. They said it wasn’t fair that they might have to pay for a system that future generations would use. But then we boomers have never worried about getting a cheap ride on investments preceding generations paid for, without paying to maintain them and without making investments for the future. Hey, we’ve saddled the next generation with student loan debt; why not give them some water debt, too?

Speaking as one boomer, I don’t want my water rates to include interest on a bond for work that we can and should finance as we go if our rates include reasonable amounts for maintenance and replacement, and I’d like to invest reasonable amounts of money (piggybacking on state money that might be available, not to mention the settlement money the City receives from polluters) to increase our flow from wells and the reuse of gray water so that we can reduce the relatively costly (but still cheap!) water we buy from the MWD.

Of course, no one likes to pay more for anything, especially for something we all take for granted. The monthly increases are going to be trivial for a middle-class family (according to Table 8 in the Kennedy/Jenks report, the increase after five years will be about $11 per month for a typical single-family house, assuming a 20% reduction in usage and the 9% annual rate increases the City Council adopted), but certainly there are low-income people for whom even a small increase would be painful. The problem is, however, that you can’t build high-quality infrastructure if one requirement is that the actual cost must be affordable to people with the lowest incomes. You need to find another way to subsidize their water, or, even better, find a way to increase their incomes.

The rate increase naysayers did make some good points, however. One was that with everyone trying to reduce usage, both by investing on water-saving improvements and changing behaviors, it’s going to get harder in the future to respond to droughts by lowering consumption. This causes frustration from people who, after all, are doing the right thing. What it means, however, is that we’re going to need more investment, both public and private. In gray water systems, for instance. The good news is that if people make investments to reduce water usage, their usage will remain lower even when the drought is over, and they will not feel the full impact of higher rates.

Another point I agreed with, one made by Diana Gordon from the SMCLC and others, is that the City’s goal of achieving water self-sufficiency by 2020 is artificial and should not drive any policies. The goal is admirable for both ecological and financial reasons, but it is artificial not only because of the arbitrary date, but also because “self-sufficiency” is an artificial concept. What does self-sufficiency mean when much of the City’s “own” well water doesn’t lie under Santa Monica? Even to the extent it does, the water is part of a regional pool of groundwater that is replenished by regional surface water.

Santa Monica’s water needs and resources, now and in the future, are part and parcel of the water needs and resources of a still growing region. It’s artificial to think that Santa Monica could be self-sufficient in water or anything else.

Thanks for reading.