Santa Monica in 2018: Are All Politics Still Local?

(Note: I haven’t written here about Santa Monica politics since my last blog last summer on the Downtown Community Plan, but I was invited to give a 20-minute talk to the Santa Monica Rotary International Club about the current state of politics here. I gave the talk last Friday, March 23. What appears below is a slightly edited version of my remarks to the Rotary. Much like the travelogues I wrote in the fall about my trips to Norway and Spain, my opinions about the current state of Santa Monica are illustrated—mostly with headlines, to prove to the Rotarians that what I was talking about truly happened.)

Greetings and thanks for inviting to share my thoughts about Santa Monica.

To review my credentials, I’m a former columnist, sometime blogger about Santa Monica, and twice-defeated candidate for City Council. Losing makes me, of course, an expert to talk about Santa Monica politics and issues. In fact, you’ll find during my talk today that losing city council election or two here is a basic qualification for anyone who think he knows how to make Santa Monica government better.

I’m going to start with an update on the development wars. Local governments in California have more control over land use that they have over most issues, and therefore it’s no surprise that development has often been the most contentious issue in local politics, especially in affluent communities where government otherwise does a good job delivering services. Santa Monica has been no exception.

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The most recent wave of anti-development activism crested in 2014 with the defeat of plans to redevelop the Paper Mate factory site. This came after a then new anti-development group, Residocracy, had gathered signatures to put the City Council’s narrow approval of the redevelopment plan on the ballot, and the Council revoked its approval rather than have the plan go to a popular vote.

Flush with that victory, Residocracy again gathered signatures, and put a restrictive development measure, Measure LV, on the ballot in 2016. The anti-development wave then, however, hit a seawall when Measure LV lost decisively.

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It shouldn’t have been a surprise that LV lost, given that a similar measure in 2008, the “Residents Initiative to Fight Traffic,” (“RIFT”), had also lost.

What the votes on both initiatives showed is that that while there is a large minority of Santa Monica voters who are motivated by the anti-development message—a bit less than 40 percent of all voters who show up at the polls—those voters are, nonetheless, a minority. It’s telling that no city council candidate running on an anti-development platform has ever won election on his or her own, meaning without an endorsement from Santa Monicans for Renters Rights (SMRR), the most powerful political group in the city.

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In fact, what we’ve seen in the past two elections is that if SMRR withdraws its support from an incumbent it previously endorsed because SMRR’s anti-development wing sees the incumbent as too friendly to development, the incumbent — Pam O’Connor in 2014 and Terry O’Day in 2016 — nevertheless wins reelection. Meaning that following the views of SMRR’s anti-development wing has cost SMRR two seats on the City Council. It used to be that O’Connor and O’Day owed their election to SMRR; now they don’t.

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Getting beyond the politics of development and into the substance of development decision-making, the 13-year process—I have called it “Santa Monica’s long municipal nightmare” —to update the City’s land-use plans finally climaxed in 2017 with passage of the Downtown Community Plan, the “DCP.” We can at least hope that the DCP is the final major plan to come out of the process that started in 2004 with the update to the City’s General Plan. That process was supposed to take two years but took six. Then it took another five years to pass a zoning ordinance to implement the General Plan, then another couple of years for the DCP. Thirteen years—kind of amazing when you think that the plans themselves are supposed to guide the City’s development for only about 20 years. Not to mention that with the defeat of the Paper Mate project, which was the key project for redeveloping the old industrial properties near Bergamot Station, the most important parts of the General Plan update, which focused on the industrial zone, are now irrelevant. We may as well start over now, but the idea of another 13 years is frightening.

The DCP itself was an uneasy compromise. Pro-housing activists did in certain contexts get the theoretical possibility of more development, but by a 4-3 vote the council included financial burdens that developers say as a practical matter will prevent new construction.

In the context of the state and regional housing crisis, which has put on the spot anti-development politicians, especially who those consider themselves to be progressive, the council members who voted to impose the burdens on developers agreed to revisit the plan if it didn’t result in housing being built.

This has led to a de facto truce while people wait and see.

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In that regard, three hotel projects in downtown, including this one designed by Frank Gehry, are coming back with plans that conform to the DCP; but there is always discretion, and we’ll see if they get approved.

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At the moment there is considerable apartment construction going on under the old standards — this photograph shows the groundbreaking for an affordable housing apartment building on Lincoln that was financed by the developer of a market-rate project — but it’s still an open question whether anyone will build under the requirements of the new zoning ordinance and the DCP. So — stay tuned.

Going beyond the development wars, Santa Monica has a lot of purely political news recently.

For one thing, we’re seeing something that has not been much of an issue in Santa Monica for a long time, perhaps not since the days when Raymond Chandler channeled Santa Monica into his crime novels as the corrupt “Bay City.” I’m talking about political corruption, alleged, possible, and real.

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One set of possible cases of malfeasance have been significant enough to garner coverage in the L.A. Times, not to mention investigations by the District Attorney, the California Fair Political Practices Commission (the FPPC), and the School Board. The allegations involve the Santa Monica power couple of City Council Member Tony Vazquez and his wife, School Board Member Maria Leon-Vazquez. While it’s been well known that Tony Vazquez has made his living as a political consultant and lobbyist, it was always assumed that he was careful enough to keep his day job out of Santa Monica. Well, it turned out that companies that he lobbied for to get school contracts applied for work in Santa Monica, and he at least neglected to tell his wife, the School Board member, so that she would recuse herself from voting on those matters, which she didn’t do.

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From there the investigation snowballed to include another school board member, and allegations of unreported income and gifts. It’s all being investigated now, so, again—stay tuned.

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Then there have been violations of the Oaks Initiative, a law the voters passed about 15 years ago that prevents public officials from benefiting from people or companies who received contracts or other benefits from the City while the official is in office. It’s like a retrospective, rearview mirror bribery law, and the law is complicated because it’s hard to keep track of who received benefits and the time frame for the restrictions. In the past few years the law has ensnared a couple of Council Members, Pam O’Connor and Terry O’Day, who received campaign contributions from disqualified contributors.

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But the most drastic impact of the Oaks Initiative was not on a politician, but on Santa Monica’s former City Manager, Rod Gould. After retiring from the City Gould accepted a job with a company that the City had hired while he was in City Hall, and Gould really paid a price for that. He was sued by the Santa Monica Transparency Project, a watchdog group that pays particular attention to the Oaks Initiative. Gould, saying he didn’t have the resources to fight the suit, settled the litigation by quitting his job and paying the Transparency Project $20,000 to cover their costs.

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The most manifestly illegal and corrupt political shenanigans, however, came from the Huntley Hotel, which sits on Second Street across from the Fairmont Miramar. The Huntley opposes the Miramar’s plans to rebuild and in 2012 the Huntley poured money into an extensive campaign to stop the Miramar project. Parts of the plan involved making illegal campaign contributions to City Council candidates and organizing and funding a fake grassroots residents group. It turns out that the FPPC was investigating, albeit slowly, and last year the FPPC hit the Huntley with penalties of more than $300,000: the second largest fine in the history of the FPPC. The Huntley’s scheme also involved the prominent law firm of Latham & Watkins as well as a former Santa Monica Malibu School Board member, Nimish Patel, who had his then law firm conceal illegal political contributions made by the Huntley. The FPPC fined Patel’s law firm $10,000, the maximum fine available to the agency.

I hate to say it, but from the Huntley’s perspective, the money, including the fine, was well spent. It’s six years later, and the Miramar has yet to get a rebuilding plan approved. The Huntley’s financing, organizing and energizing of the campaign against the Miramar revitalized the anti-development movement in Santa Monica, which, after the 2008 defeat of the RIFT initiative, had been relatively quiescent. The 2010 General Plan update had been approved by all the council members, including those from the anti-development side, and even the backers of RIFT generally accepted it. The plan update was the basis for the Paper Mate plan that Residocracy defeated in 2012, after the Huntley had fanned the flames over the Miramar plan.

Meanwhile, although it may seem like nothing ever changes in Santa Monica politics, two major changes to how Santa Monica chooses its elected officials are in the works. I’m referring to district elections and term limits.

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As for district elections, School Board member Oscar de la Torre has sued the City under the California Voting Rights Act saying that the City’s at large elections violate the voting rights of minorities, who, because of historical segregation, live predominantly in the Pico Neighborhood. (By the way, like me De la Torre has been a losing candidate for City Council.)

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Then this year activists from the Santa Monica Transparency Project—yes, the same group that sued Rod Gould over the Oaks Initiative—began a signature gathering campaign to put a term limits initiative on the ballot.

When it comes to these efforts to change the City Charter, I’m torn. Usually I’m in favor of district voting, so long as there isn’t gerrymandering, not only because it can diversify who is elected, but also because it’s easier for candidates to run in smaller districts. I usually oppose term limits, since in general I believe that anyone should have the right to run for office, and voters are better served by having more choices, not fewer. Also, as we saw was the impact of term limits on the California legislature, term limits can result in too much turnover, giving us legislators who lack experience and knowledge about how to govern.

So those are my usual positions. But as I said, I’m torn, because in Santa Monica the fact is that incumbents can stay on the council for as long as they want. This is not a one side or the other side issue: council members of all political persuasions have remained on the council term after term. So I’m thinking about term limits in a more positive way than usual, although I haven’t made up my mind.

But what about district elections? As I said, I usually favor districts, but I’m not sure we need them in Santa Monica. Why? Because those same council members who get elected over and over are so paranoid about not being reelected, that they try to please anyone who votes, and that includes, for all of them, residents of the Pico Neighborhood. In that sense, the neighborhood is well represented. And, if you include the school board and the college board along with the council, we have a good record of electing minorities. As a result, I don’t see the logic for the lawsuit, although if districting comes, it would make it less expensive and easier for new candidates to run, which would be a good thing in and of itself.

Now that there is, at least for a time, less of a political focus on development, what are the issues, more or less real, that face our community?

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How about crime? Rising crime is the issue that Residocracy and its leader, Armen Melkonians (also like me a two-time loser when running for City Council), are trying to use now to gain political power given that development didn’t work. Reported crime, particularly property crime, is up in Santa Monica over the past few years, and there have been some particularly violent crimes, including a murder and a home invasion, in normally low-crime, upscale neighborhoods that have people in those neighborhoods rattled.

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However, by historical standards, even with the uptick crime rates are down in Santa Monica. But the historical levels were quite high: I’m speaking as one whose homes have been burglarized twice. Yet I for one don’t sense that people are fearful as they move about the city, not as fearful as the cities I lived in before coming to Santa Monica, namely Philadelphia, Chicago and Boston. But maybe I’m missing something, and I don’t live in the Pico Neighborhood, where there has been gang violence going back decades. Significantly, however, gang violence has considerably decreased over the past four or five years, although in the past year or so there have been several shootings, including one murder, that have the hallmarks of gang violence although the victims are not necessarily gang members.

Let me make an aside here, which possibly ties local politics into national politics. Why is it that a political group that wants to gain power finds that it needs to focus on grievance? Residocracy is explicit that it’s looking for an issue that will motivate voters to vote based on fear. Yet by all measure, Santa Monica is a wonderful place to live — something the leaders of Residocracy will admit, given that they say they are trying to preserve Santa Monica the way it is. Let’s face it, the politics of fear and anger pervade our society, at all levels and, let me make this clear, all sides of every argument use the politics of fear, instead of promoting themselves on the basis of, dare I say it, hope and faith in the future.

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In any case, as for crime, the City has hired a new police chief, who was known to have reduced crime her previous job, in Folsom, and so stay tuned on that as well.

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Another issue is transit. In a certain sense, with the opening of the Expo line and its great success, this should be the new golden age of public transportation in Santa Monica. Those tens of thousands of Expo riders must mean that more people than ever are using transit in the city. However, those riders don’t count when the Big Blue Bus is tabulating its ridership, and that ridership is down.

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This is a regional issue, as the same thing is happening with Metro bus service, but I can’t help being annoyed still whenever I see Santa Monica’ artsy bus shelters (if you can call them that), one of which you can see in this picture. Whenever I see them, which is all the time, I’m reminded that one of our council members, when voting for this design, said it was more important for the bus shelter design to be creative and—quote—whimsical than utilitarian. If you want people to ride the bus, you have to treat them like customers.

Another big issue is the future of Santa Monica Airport.

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The City and FAA entered into an agreement a year ago to close the airport in 2029. This timetable disappointed many opponents of the airport, including many like myself who want to turn the land into a big park, especially because if previous agreements with the FAA had been written less ambiguously, the City could have closed the airport in 2015. But as a settlement of confused litigation the deal made sense.

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And because the agreement allowed the City to shorten the runway, jet traffic has been drastically reduced—down about 80% from a year ago.

And another 12 acres have been opened up to park expansion. Because the City has taken over leasing at the airport, the City is making a lot of money from rents that will pay for some park construction and ultimately operating costs for the big park.

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But let’s face it, the big issue confronting Santa Monica as well as the rest of the region is homelessness, and that’s not getting better.

The title of this talk includes the question whether, as the immortal Tip O’Neil once said, all politics are still local. There’s no question that with homelessness you finally get the answer, which is — yes and no. Yes, because the attitudes of most voters are still made up most of all with how they see their own daily reality. But no, because those realities, whether they are homeless people living on the streets of Santa Monica, or abandoned factories in the Midwest, are products of decisions beyond the purview of any particular local government.

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Homelessness, which not only is a moral disgrace but also costs the City of Santa Monica millions in direct and indirect costs each year, is the product of a statewide housing crisis, state and national policies on treatment of, and funding for, the mentally ill, a catastrophic national policy on drugs, and other forces beyond the purview or pay grade of Santa Monica’s elected officials and staff.

Yet, the lack of ultimate power to effect change does not diminish our responsibility as citizens to continue to seek change. We need to solve the homeless crisis, or risk failing as a society.

Thanks for reading.

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.

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

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.

Santa Monica Airport: Going environmental

When it comes to the Santa Monica Airport (SMO), what a difference a few years, a lot of community action, and a decisive election have made. Four years ago, in the aftermath of losing its battle with the FAA over large jets, the City of Santa Monica was gun shy about the airport. It initiated a “Visioning Process” for the airport that ended up envisioning nearly everything that might happen at SMO except the vision that most residents concerned about the airport wanted: shutting it down.

Fast forward. Two months ago the City Council listed closing SMO as one of the three major priorities for the City. Last week the City took out full-page advertisements and created a website designed to mobilize community action against the Federal Aviation Administration (FAA) for the purpose of doing that. Tomorrow night, the council will act on recommendations from staff to start a process to curtail environmental impacts of airport operations until it can be closed.

All of this is in the context of continuing litigation to establish or confirm the City’s right to close all or part of the airport. There are two cases. The City initiated one against the FAA in 2013 to have the courts declare that the City now has the right to close the whole airport. (That litigation is tied up in a procedural appeal in the Ninth Circuit.) Airport interests brought the other case—it’s a FAA administrative proceeding seeking to extend the City’s obligation to operate the airport under a contract with the FAA from 2014 to 2023. (In that case, the FAA was supposed to give its decision months ago, but has for the third time delayed the decision.)

A city government that was not long ago trying to rationalize every problem SMO creates is now throwing every argument and strategy it can at the FAA to close the airport. It’s particularly notable that the City is working in concert with the two U.S. representatives, Ted Lieu and Karen Bass, whose constituents are affected most by the airport; this represents a big change from a few years ago when it was hard to get the local congressional delegation interested.

It is also notable that the City is making environmental arguments against the airport that it had not made before. These arguments, which have been championed for years by Los Angeles resident Martin Rubin and his organization, Concerned Residents against Airport Pollution (C.R.A.A.P.), potentially will allow the City to make an end run around at least the strictest aspects of FAA control.

This environmental argument is mostly what tomorrow night’s hearing is about. Staff is proposing various measures, including moving to require that all fuels sold at the airport be low lead or unleaded for prop planes, or biofuels for jets; requiring that current airport lessees begin mitigation of contamination of premises they have occupied; and moving to have the City take over fuel sales. Finally, staff wants authority to begin developing plans for a cap on total emissions generated by the Airport, something that could ultimately provide overall limits on airport operations.

Of course, the goal is not to operate a cleaner airport, but to close it and build a park. But making the airport operate more cleanly not only has intrinsic benefits, for so long as the airport is operating, but also increases pressure on the aviation businesses there.

All of this is radical change from where the City was not long ago. The sea change began after the 2012 election where nearly all the candidates supported closing the airport, and obviously picked up with the 2014 election when Measure LC won handily, defeating the aviation industry’s Measure D 60% to 40%. Also, one has to credit the hiring of new City Manager Rick Cole, who is taking a much more dynamic approach to the airport and its future than did his predecessor, Rod Gould.

Tomorrow night City Council should adopt all of the staff recommendations, but it should try to go even farther. For one thing, it should have staff report back on the possibility of ending all fuel sales at the airport and what this would mean, both legally and practically. Another thing the Council should do—at least I don’t see why the City can’t do it—is to terminate all leases with flight schools. The numerous flight schools at SMO are responsible for a large proportion of takeoffs and landings, and given the residential areas around the airport, it’s a dangerous place to learn to fly. I haven’t heard of any FAA regulations that require airports to have flight schools.

Without going too deep into the controversy, there is a group of anti-airport activists who believe the City can go much further than what staff proposes—and close the airport now. It’s impossible to imagine how this could be done given that the City is engaged in ongoing litigation over what its rights are, especially given that other parties brought one of the cases against the City. Although in my opinion these activists are correct about what the City has the right to do, when they ask the question, “why are the jets still flying,” it’s as if they never heard the words “contempt of court.” Judges don’t like it when litigants go outside the process.

In law school they teach that there is no right without a remedy. With respect to SMO, the City of Santa Monica is working on establishing and creating its remedies, both in the courts and on the ground.

Thanks for reading.

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

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?

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.