Hueston: you have a problem

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

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.