Tag Archives: Elizabeth Riel

Hueston: you have a problem

Posted on by
Reply

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.

More Riel politics: the Hueston Report

Posted on by
8

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.

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

Posted on by
4

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.

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

Posted on by
8

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?

Posted on by
5

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.

 

 

 

 

 

 

 

 

 

Riel Politics, Part 2: Free speech and politicians

Posted on by
6

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.

Riel Politics: the firing of Elizabeth Riel, a chronology

Posted on by
17

I didn’t plan it, but on a de facto basis I’ve taken a month-long, late summer vacation from the life and times of Santa Monica. I did a little traveling, but let’s face it: with the heat it was hard to think, let alone write blogs about local politics.

However, time, tide, and the Santa Monica Coalition for a Livable City (SMCLC) wait for no man, and while I was gone one of the juiciest political dramas in recent Santa Monica history kicked into high gear. I’m speaking of the fallout from the City’s firing of Elizabeth Riel in 2014 and the settling in July of her subsequent lawsuit for $710,000.

The political drama has focused on the role of Councilmember Pam O’Connor. SMCLC has demanded that O’Connor be prosecuted for violating the City Charter by interfering in a hiring decision by former City Manager Rod Gould, and according to SMCLC, as reported in the Lookout, the City is referring the matter to the District Attorney. (Section 610 of the City Charter provides that councilmembers shall not “order or request directly or indirectly the appointment of any person to an office or employment or the removal of any person therefrom, by the City Manager, or by any of the department heads in the administrative service of the City.”)

Meanwhile, Mayor Kevin McKeown has said that the City will review the matter, and O’Connor has said she welcomes the review.

Not willing to wait for the D.A. or the City and not considering SMCLC’s analysis to be definitive, I decided to conduct my own investigation. Through a public information request I obtained all the documents disclosed by the parties in Riel’s lawsuit and the depositions of O’Connor, Gould, Riel and Mayor Kevin McKeown. In this much longer than usual post I’ll summarize the facts as laid out in the documents and deposition testimony; in later posts I’ll try to make sense of the various issues that arise from the case. There are a lot of them: the politics, naturally, and even the philosophical, because the case has a lot to do with where government runs up against politics, but also the personal. Believe me, the personalities could be out of a novel, or a gritty TV drama.

The City hired Riel on May 6, 2014, and she was going to start work on June 2. Her job was to be the City’s Communications and Public Affairs Officer. The position is within the City Manager’s office and involves, among other duties, interacting with all the city councilmembers, particularly to prepare them when they would be representing the City in public events. Riel would be replacing the estimable Kate Vernez, who was retiring.

The crucial events that led to the firing of Riel took place over about 24 hours on Thursday and Friday, May 22 and 23, 2014, which were two days that preceded the Memorial Day weekend. Based on my reading of the relevant documents, principally emails among O’Connor, Gould, Gould’s staff, and Riel, and the depositions of O’Connor, Riel, and Gould, the following is the chronology of what happened.

On May 22, in the late afternoon or early evening, O’Connor, who was then mayor, sends her first email to Gould. She tells Gould that she will be “extremely hesitant to work with Elizabeth Riel especially during the campaign season” and that “if I need support on Mayoral things I want someone else assigned.” Gould, by the way, is in Canada at a conference when he receives this email. He remains in Canada until Sunday, May 25; one affect of this is that, as the lawyers in the case realized, it’s often difficult to know the exact time, in Santa Monica, that emails were sent, since people are emailing from different time zones.

In her first email, O’Connor doesn’t give much in the way of reasons for not wanting to work with Riel, simply saying that “in past elections SMCLC has attacked me.” “SMCLC” is, of course, a reference to the Santa Monica Coalition for a Livable City. The only backup that O’Connor gives in this email for her not wanting to work with Riel is a link to a letter to the City Clerk in 2008 that Riel co-signed as of one of the proponents of SMCLC’s RIFT initiative, along with two other proponents, Diana Gordon, co-chair of SMCLC, and future councilmember Ted Winterer, who signed as President of the Ocean Park Association. Riel identified herself as “Past President, NOMA,” referring to the North of Montana Association.

Gould replied by email, asking O’Connor to give Riel “a chance to prove herself.” He tells O’Connor that he’d heard Riel speak “very respectfully” of O’Connor “and the issues for which you stand.”

Pam O'Connor's first email to Rod Gould about Elizabeth Riel, and his reply.

Pam O’Connor’s first email to Rod Gould about Elizabeth Riel, and his reply.

Gould’s response doesn’t satisfy O’Connor. She replies that Gould had hired someone with political ties to other council members, and that he’d put “a no-growth activist in upper management at City Hall.” But it’s clear that O’Connor considers the hiring of Riel to be a done deal; she tells Gould to “just give me the technical materials I need when I need them and I’ll do it myself” (“it” meaning preparing her presentations), and concludes the email with a cheery “Thanks!”

It’s not clear that either of O’Connor’s first two emails would have had any impact on Gould, but then O’Connor sends Gould a third email. Apparently O’Connor had been doing Internet research; she begins this email by saying that “I don’t think your background checking folks did much of a job,” and then quotes from and links to an article in the Lookout from 2006 about an attack mailer that SMCLC sent out in 2006 against O’Connor that Riel helped fund.

In Canada, Gould must have gone to bed by then, because he didn’t reply until the next morning, Friday, May 23, and it was on that day that the crucial developments that resulted in Riel’s firing took place.

In Gould’s reply to O’Connor’s third email, Gould is still defending Riel. He tells O’Connor that Riel “has grown very tired of all the complaining around town…. She wants to put the development issues in better light.” He says that he is “surprised by her earlier association” and that he will discuss it with her. Finally he asks that O’Connor “keep an open mind and give her a chance.”

We get more insight into Gould’s state of mind as the day began through an early exchange of emails between him and Elaine Polachek, his deputy. At 7:21 that morning, Polachek, responding to Gould’s forwarding of O’Connor’s email from the night before, states to Gould that Riel had not disclosed the matters brought up by O’Connor and says that it’s a “trust issue for Pam.” Polachek asks Gould if he thinks “it’s salvageable.”

Gould responds in an email by saying that he will speak with Riel “to be sure she can work with all members of the City Council.” Crucially he then says, “I think we made the right hiring decision, but am not at all sure Pam will give her a chance to prove herself.” This is important because it shows that Gould was not then expecting to fire Riel, but was worried that O’Connor would not work with Riel when she came aboard. Nothing that O’Connor had said to that point made Gould think that the solution was to fire Riel.

Polachek was of the same mind: she affirmed that she thought that Riel was the right choice, but said that O’Connor, when she sets her mind, “tends to be immovable.” Repeating a suggestion she had made in another email even earlier Friday morning, Polachek suggests that Kate Vernez (the staff member Riel would replace), might help “open the door a little” for Riel with O’Connor, but says that Riel will then “have to try to establish trust with her.”

Emails between Gould and Elaine Polachek Friday morning.

Emails between Gould and Elaine Polachek Friday morning.

These emails make it clear that at this point both Gould and Polachek expected Riel to come to work, and the issue would be getting O’Connor to work with her. As Friday began, Gould was expecting to speak to Riel to confirm that she could work with all members of the Council, but he was worried that O’Connor would not give Riel the benefit of the doubt.

Meanwhile, it becomes apparent not only from the emails, but also from O’Connor’s deposition testimony, that she was getting deeper into the issue because she felt that Gould was not taking her concerns seriously. You never know what might have had happened if Gould had said something like, “don’t worry, I won’t make you work with anyone you don’t want to work with.” But as Gould keeps asking O’Connor to give Riel a chance, O’Connor keeps finding more about Riel she doesn’t like, and Friday afternoon O’Connor responds with a blistering email to Gould, saying that she does not and will not trust Riel. She says she will not work with Riel “not because she is a supporter of others but she attacked me directly by putting money onto (sic) a hit piece. There are very very few direct hit pieces done in Santa Monica and she was a leader in this effort.”

In the email O’Connor chides Gould for hiring “people who are political enemies of people elected to your Council,” but O’Connor still considers the hiring of Riel to be a done deal. There’s nothing indicating that O’Connor believes the decision can be reversed; she wants Gould to find someone else for her to work with.

As the afternoon goes on, O’Connor continues to ratchet up the pressure. In another email she tells Gould that she’ll be running for reelection—with the implication that that gave her even more reason not to trust Riel, who had worked for the reelection of Kevin McKeown in 2006 (McKeown would also be running again in November 2014). In another email O’Connor states that she’s sure Riel’s hiring will become a news story because of her political activity, implying that it’s going to be a public embarrassment, and possibly implying that she’ll make sure it’s a news story. When Gould asks her to have continued confidence that no one on his staff, including Riel, will prejudice O’Connor’s reelection campaign, O’Connor responds with, “I’m sure Kevin [McKeown] hasn’t lost faith!”

But again, there’s nothing where O’Connor indicates that Riel could or should be got rid of.

Returning to Gould’s actions, Friday morning he sent Riel an email asking her to call him. She tried to, but was told that he was in a lunch meeting. In an email she told Gould that she was going into a meeting herself, but that she would be available around 5:45. Gould replied by thanking Riel for trying to reach him; then he said it would be good if they “could talk briefly over the weekend if not today.” He told her that it was about “a small but gnarly political issue.” Gould did not reveal that the gnarly political issue involved her; and Riel responded, without any foreboding, “Ha – those are the best kind!”

Emails between Gould and Elizabeth Riel trying to schedule a phone call.

Emails between Gould and Elizabeth Riel trying to schedule a phone call.

The delay in connecting did not help the atmosphere for the eventual telephone conversation. As the day progressed, Gould became increasingly annoyed by what Riel had not disclosed during the hiring process. His annoyance became focused on four prior political activities that seemed particularly partisan: Riel’s financial contribution to the 2006 attack mailer on O’Connor; her being an active volunteer on McKeown’s 2006 reelection campaign (and donating to it); her being one of the founding members of SMCLC; and her being one of the leaders in the 2008 RIFT campaign.

Gould’s increasing frustration was reflected in two emails that he sent to O’Connor Friday afternoon before speaking to Riel. In them he first raises the possibility, if Riel can’t give him assurances that she’ll be able to work with all the councilmembers, of rescinding the job offer. (Gould always wrote as if Riel had only been offered the job, not that she’d accepted the offer and been employed). In the first email he writes, “if she insists that she can discharge the full duties of the position, then I must allow her to begin work.” He says that he will discuss the matter with City Attorney Marsha Moutrie to see what his options are; from the email it’s clear that he believed that Riel’s job was under civil service and that she might have job protections that could prevent him from terminating her employment.

The second email to O’Connor Friday afternoon came after he spoke with Moutrie. The City Attorney had apparently informed Gould that Riel’s job was not covered by civil service, but was rather an “at will” position meaning that her employment could be terminated at any time. Gould was still agonizing about what to do. He tells O’Connor that he is “depressed over this,” and “increasingly bothered that [Riel] shared none of this in the process. As a public relations expert, she of all people would have strong sense of how her previous activism would affect how she is perceived in this role.” He asks rhetorically, “does her previous political work disqualify her for this key position?,” and continues by telling O’Connor, “I will speak with her and think hard about this. I may have to reverse course and rescind the offer. Marsha and I have been discussing this option and she can help.”

O’Connor apparently didn’t see this last email from Gould until the next day when she was in Barcelona. Yes, while O’Connor was writing those emails that Friday afternoon, she was preparing to fly to Spain. She doesn’t respond to this email until Saturday, the 24th, after she got off her flight in the late morning Barcelona time, which was in the wee hours Saturday morning in Santa Monica.

In the meantime, it was all over but the litigating.

Gould and Riel finally connected late Friday afternoon; Riel was on her cellphone doing errands in her neighborhood. The conversation did not go well. While in their depositions and in court papers Gould and Riel differ on the tone of the conversation, the content is not materially in dispute. Gould began the call by asking Riel about the four incidents of partisan political activity that most bothered him. Riel, for her part, acknowledged that the facts as Gould had them were true. You might think, so far so good, but alas, instead of this acknowledgement leading to dialogue and an understanding that restored Gould’s faith that Riel could do the job, the conversation went downhill.

According to Gould, he lost faith in Riel because instead of going on from acknowledging that she’d engaged in partisan activities to a further acknowledgement that these revelations created problems, Riel gave Gould four of what he called “rationalizations.” The first was Riel’s saying, according to Gould, after she acknowledged the four partisan activities, “But I never hid it from you.” As Gould recounts in his deposition (page 239), that statement perplexed him, since she had not disclosed anything about political activities in the recruitment process.

More than anything else, this statement from Riel, that she had not hidden her prior political activities from Gould, seems to have been what cost her Gould’s confidence and her job.

In case you are wondering, as I am, what Riel meant by this statement, you won’t find an answer in her deposition, as the attorney for the City did not ask Riel why she told Gould that she had not hid the information. The attorney did ask her if she had disclosed the information in the recruitment process, and Riel admitted that she had not (page 278 of her deposition), and consequently it’s hard to understand what Riel was thinking when she told Gould she’d been open about her past. (Based upon something her husband said after the firing, it’s possible that Riel considered that she had disclosed enough about her political past by disclosing on her resume that she had been president of the North of Montana Association and that she had written a column for the Daily Press.) What’s unfortunate is that if, in the phone call with Gould, Riel had simply said what came out later, that after six years she’d put all of those politics out of her mind and didn’t think they were important (Riel deposition, page 74), the phone call might have had a better outcome.

Gould ended the conversation by telling Riel that they should both think about the issue over the weekend and speak again, but it’s clear from emails Gould sent to O’Connor and his staff that he had made up his mind based upon the phone call Friday afternoon to rescind the job offer.

Email from Gould to O'Connor and staff on Saturday regarding his decision to fire Riel.

Email from Gould to O’Connor, cc’ing Polachek and Moutrie, on Saturday regarding his decision to fire Riel.

For her part, Riel also believed that she’d lost the job. By the next day a sympathetic friend with whom Riel had confided was trying to find her a lawyer, and by Monday (Memorial Day), when Gould gave Riel the formal decision over the phone, she, anticipating legal action, took notes on what he said.

Suffice it to say that the phone call on Monday did not go well either. Gould was sad and apologetic, but his attempts to persuade Riel to agree to a joint statement, to spare her, he thought, embarrassment, only made things worse.

So that’s what happened. One can argue whether Gould fired Riel because of her political beliefs or because he no longer trusted her, or no longer believed that she could act impartially in her job, and O’Connor sure didn’t want to work with Riel, but there is no evidence from the record that Gould made his decision on orders from O’Connor or even on her suggestion.

Next installment—what can a councilmember say to a city manager, and what should a councilmember be able to to say to a city manager?

Thanks for reading.