Tag Archives: Santa Monica politics

Final thoughts on the voting rights case: there’s no right without a remedy

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To summarize my previous two posts about the California Supreme Court’s decision in the Santa Monica voting rights case, it seems that:

(i) To prove that an at-large voting system unlawfully discriminates against a protected class of voters under the California Voting Rights Act (CVRA), plaintiffs must prove (A) that racially polarized voting exists among both the protected class and the white majority; and (B) that the at-large system dilutes the political power of the protected class compared to what would be the case under a lawful alternative system;

(ii) If the proposed alternative is district elections, plaintiffs do not need to show that protected class voters need to be numerous enough and geographically compacted enough to be collected in a majority or near-majority district;

(iii) A proposed system would not be a reasonable alternative if it reduces the overall electoral power of all members of the protected class, regardless whether they would live within districts established to enhance the voting power of the protected class; and

(iv) Determining whether a valid CVRA claim exists entails a “searching evaluation” of the “totality of the facts and circumstances” in the jurisdiction where the case arises.

If you have read my first two posts on the case, you know that I do not believe, based on the facts and circumstances, that racially polarized voting exists in Santa Monica; and that therefore the Court of Appeal should dismiss the case. Furthermore, even if the plaintiffs can prove racially polarized voting, if the proposed remedy is district elections, then dilution cannot be proved because district elections would weaken the overall political power of Latinos in Santa Monica. If the only possible remedy is districts, then the Court of Appeal should dismiss even if it finds that there is racially polarized voting in Santa Monica.

However, what would be the case if plaintiffs can prove racially polarized voting and there are remedies other than district elections? It is under this scenario, which may or may not be the case in Santa Monica depending on whether there is a finding that racially polarized voting exists, that the court broke new ground and extended the possibilities of the CVRA.

When it comes to remedies for when an at-large system dilutes the political power of a protected class, the CVRA specifically refers to only one, district elections, but it leaves open the possibility that courts can be creative and find others. Here is the language from the statute: “[u]pon a finding of a violation [of the law] the court shall implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy the violation.”

The meat of the court’s decision revolves around the possibility of “tailoring” such remedies. In doing so, the court implicitly shows skepticism that district elections would work in many jurisdictions where majority-minority districts cannot be drawn (even as the court holds that under the CVRA it is not necessary for plaintiffs to show that majority-minority districts can be drawn). As if to counterbalance that skepticism, the court emphasizes the possibility of other remedies that counteract dilution of the protected class’s political power, but preserve at-large voting. (At least as evidenced by this article, the voting rights legal community seems to be seeing this decision by the California Supreme Court as a major milestone in voting rights jurisprudence because of its focus on alternative remedies. The case reminds me of an adage you hear constantly in law school: “there’s no right without a remedy.”)  

The court repeatedly mentions three voting systems that courts might use to remedy voter discrimination: cumulative voting (whereby voters can allocate some or all their votes to favored candidates); limited voting (whereby a voter has fewer votes than there are candidates to elect); or ranked choice voting (voters rank candidates in order of preference, and votes are added to candidates’ totals until candidates achieve majorities).

From the perspective of a potential plaintiff in a CVRA case, the court “taketh away and giveth.” On one hand, the court has made it more difficult to prove discrimination because by making dilution “comparative” it has made proving dilution more difficult, but on the other it has expanded potential remedies to give plaintiffs reasonable alternatives against which to judge an existing system. The court also took a more expansive view of political power, consistent with language in the CVRA, recognizing that the goal of CVRA litigation can be to enhance the power of protected classes through the use of alliances and coalitions even when electing members of the class is problematic, such as in jurisdictions where protected classes are small minorities or dispersed geographically.

While the court pointedly expresses no view about whether plaintiffs in Santa Monica have proven the elements of a CVRA case, and sends that determination back to the Court of Appeal, it seems as if the court is suggesting to the lower court that if it finds those essential elements, it could end the case by imposing an alternative other than district elections.

What about a settlement? This case has gone on a long time and cost the City a lot of money. I suspect that a reform like ranked choice voting would be popular among Santa Monicans. Many of us have been watching how ranked choice voting in places like Alaska has led to more moderate candidates being elected. Perhaps the City could agree to that and settle the case.

There are, however, obstacles to a settlement. One is attorneys’ fees. If the plaintiffs can win the case, proving racially polarized voting and dilution (compared to a remedy), then the City would be on the hook for what are now many millions of dollars in attorneys’ fees. The City is unlikely to agree to pay those fees if it still has a good chance of persuading the Court of Appeal to dismiss the case. There is also the question whether to settle a lawsuit the City can agree to amend its charter, something that would normally require a vote of the people.

For these reasons, I am not optimistic that the case will be settled. The next act of this drama will probably play out in the Court of Appeal.

Thanks for reading.

Next question: does racially polarized voting exist in Santa Monica?

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The next step in an analysis of the California Supreme Court’s decision in the California Voting Rights Act (CVRA) case the Pico Neighborhood Association brought against the City of Santa Monica is to do what the court said was necessary: to undertake a fact-specific and “intensely local” evaluation of (i) whether a violation of the CVRA potentially occurred, and if so, (ii) whether a remedy can be tailored so that the remedy does not make the protected class “worse off.”

To prove a violation of the CVRA a plaintiff must prove (i) that “racially polarized voting” exists and (ii) that an at-large voting system dilutes the votes of a protected class of voters. In the Santa Monica case, the trial court determined that racially polarized voting existed, but the Court of Appeal never evaluated that determination. It dismissed the case without ruling whether racially polarized voting existed because it found that the plaintiffs did not prove dilution and that was enough to dismiss the case. As discussed in my previous blog, the California Supreme Court rejected the Court of Appeal’s interpretation of “dilution,” sending the case back to the Court of Appeal to consider both whether the plaintiffs showed that voting in Santa Monica was racially polarized, and whether, under the standard the court articulated in its opinion, dilution had occurred. Again, plaintiffs need to prove both polarized voting and dilution.

“Racially polarized voting” is a term that the CVRA defines with reference to case law under the federal Voting Rights Act (VRA). This is legislative malpractice: appellate decisions themselves need to be interpreted and case law changes. The legislature could have done everyone a favor by defining the term in the text of the law itself. I am not an expert on that VRA case law and therefore if you skip the next section of this blog, go ahead, as my views might have nothing to do with how the Court of Appeal will analyze the issue. However, I have been a close observer and participant in Santa Monica politics for more than 30 years and I can say with confidence that racial and ethnic identities play a minor role in Santa Monica elections.

Over the past 40 years many Latinos have been elected to office in Santa Monica. True, as the plaintiffs pointed out in their pleadings, until recently few had been elected to the Santa Monica City Council, but many had been elected to the boards of the school district and Santa Monica College. The frequent election of Latinos began when Santa Monicans for Renters Rights (SMRR) began running slates of candidates in the 1980’s. SMRR’s inclusionary tactics were a great example of how political communities (not only racial or ethnic communities, but also communities of interest, such as renters) that might not be able to win elections on their own can do so if they form alliances. This use of “crossover” voters is something that the court in its decision referred to as a reason not to require majority-minority districts in the definition of “dilution,” but crossover voting and coalitions also bespeak a lack of racially polarized voting, because coalitions prioritize issues.

A great example of the power of alliances in Santa Monica is the career of City Council Member Oscar de la Torre, who is, incidentally, the husband of Maria Loya, one of the plaintiffs in the current case. De la Torre was elected many times to the school district board as a SMRR-endorsed candidate. He ran for City Council in 2016 without SMRR support and lost. In 2020, however, after making new alliances, and joining the “Change Slate,” he won. So, tell me: when De la Torre won election to the school board with SMRR backing, voting in Santa Monica was not racially polarized; when he lost for City Council without SMRR backing, voting was polarized; but then when he won as part of the Change Slate, voting was not polarized?

Alliances with non-Latino voters have enhanced the power of the Latino community. These alliances were effective because Latinos, like all Santa Monicans, get to vote for all seven councilmembers. Candidates wherever they live need to pay attention to the needs of the Latino community.

De la Torre himself became a power broker in SMRR, bringing groups of constituents to the SMRR conventions to vote on endorsements. They were joined by other heavily Latino organizations, most notably the hotel workers union, Unite Here. SMRR-dominated city councils adopted policies that reflected these constituencies. Rent control and other tenant protections, such as anti-Ellis Act laws, benefited Latino renters. Pro-union policies benefited Latino workers. Support for affordable housing benefited Latino working families. Social and after-school programs, a new branch library, and new parks in the Pico Neighborhood; these and other progressive policies came about because of liberal coalition politics.

The Latino community in Santa Monica is itself divided over the same issues that divide the city as a whole: development, housing, homelessness, crime, etc. Arguably De la Torre became electable to City Council when he dropped his anti-police politics and joined the law-and-order Change Slate. De la Torre’s ethnicity didn’t change, only his politics. Not long before the 2020 election he received a late but timely endorsement from the anti-development group Santa Monicans for a Livable City when he expressed opposition to the proposed development at Fourth and Arizona and to development agreements.

To show in a voting rights case that racially polarized voting exists plaintiffs need to show that it exists in both directions, among the protected class and among the white majority. Anyone who has observed (or participated in) Santa Monica politics knows that the majority white population is (often bitterly) divided, and not over racial or ethnic issues.

Again, I don’t know if my practical analysis of Santa Monica politics would necessarily persuade a court looking at VRA precedents that racially polarized voting does not exist as a matter of law in Santa Monica. But a determination that there is racially polarized voting in Santa Monica would elevate form over substance.

If plaintiffs can prove the existence of racially polarized voting, then that brings on the second element that plaintiffs in a CRVA case need to prove: dilution. For reasons discussed in my previous blog, dilution requires that the remedy, the alternative to the existing system, must not make things worse for the protected class overall. (Remember, dilution “compared to what?”)

Whether this problem with the remedy would exist depends, needless to say, on the remedy. The CVRA case in Santa Monica has been all about replacing the at-large system with districts. With respect to districts, the court held that if the proposed remedy is to convert an at-large electoral system to districts, the plaintiffs “must show not merely that the protected class would have a real electoral opportunity in one or more hypothetical districts, but also that the incremental gain in the class’s ability to elect its candidate of choice in such districts would not be offset by a loss of the class’s potential to elect its candidates of choice elsewhere in the locality.” (Emphasis added.) This is particularly relevant in a jurisdiction like Santa Monica where the population of the protected class is a small portion of the whole. If you concentrate that population in one district—in Santa Monica, one of seven—the protected class will lose power in the other districts given that candidates will have many fewer constituents who are of the protected class.

Under the best district map the plaintiffs could come up with, most Latinos in Santa Monica would live outside the “Latino district.” Meaning that to give a minority of the city’s Latino population the ability to vote for one councilmember every four years in one district where Latinos comprised 30 percent of voters, they and all other Santa Monica voters, including all other Latino voters, would lose the right to vote for seven councilmembers over two election cycles. Would this be a fair trade? A trade that increases Latino voting power?

There is no way that district elections will enhance Latino electoral power in Santa Monica. However, the court’s decision emphasized the availability of other remedies besides districts. Looks like I’ll need a part 3 to discuss the implications of those possibilities.

Thanks for reading.

Progression to the mean: Santa Monica voters renew their liberal vows

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There may be more votes counted next week, but the results of the Santa Monica elections are clear. What is most clear is that the reactionary turn in 2020 is old news, an artifact of the unique events and despair of that year. The city’s liberal majority has reconstituted itself. I say, “reconstituted itself” and not “returned” because there were notable developments in the liberal vote.

For one thing, the election showed that liberals don’t need alliances with no-growthers to win.

There were four candidates running for Santa Monica City Council who represented traditional, jobs-housing-education-environmental liberalism – Caroline Torosis, Jesse Zwick, Natalya Zernitskaya, and Ellis Raskin. Unfortunately, as I wrote in a previous post, they were competing for only three seats. Collectively the four liberals dominated the vote, but the split vote meant that they won only two of the three.

Two candidates, appointed incumbent Lana Negrete and Residocracy founder Armen Melkonians, were the candidates associated with the “Change Slate.” Three Change Slate candidates won in 2020 running against Santa Monica’s traditional liberal consensus, shocking everyone.

I am not, by lumping Negrete together with Melkonians and the Change Slate, expressing any opinion whether and to what extent Negrete herself identifies with the Change Slate or will vote along with them as a council member. Negrete received endorsements in the election from various organizations (such as Community for Excellent Public Schools) and local political notables who have over the years been on the liberal side. Negrete presents herself as an independent; I doubt if anyone knows how she will vote on the dais. (Perhaps it is significant that she doesn’t list no-growth organizational endorsements on her endorsements page.) However, independent expenditure (I/E) groups more than the candidates created the landscape on which the 2022 election took place. Liberal groups supported Torosis, Zwick, Zernitskaya and Raskin. Grievance-based, reactionary, and no-growth groups and I/E campaigns, such as Santa Monicans for Residents Rights (note the deceptive use of “SMRR”), Santa Monicans for Change, and the Santa Monica Coalition for a Livable City (SMCLC), as well as the no-growth SMa.r.t. group of columnists and Daily Press columnist Charles Andrews, all endorsed Negrete along with Melkonians. They created a de facto slate of the two of them. That’s how the election was fought—those two versus the four liberals. We all got the mailers.

Let’s look at the votes. In the City Council election, Torosis and Zwick, who were endorsed by all the main liberal organizations (Santa Monicans for Renters Rights (SMRR), the Santa Monica Democratic Club, Santa Monica Forward, and UNITE Here Local 11) dominated. By the most recent count (all the vote numbers here are from the totals posted on the County website as of Nov. 25), Torosis has received 17,709 votes and Zwick 16,117. Their totals far surpass the third winner, Negrete, who has only 11,627. Not far behind Negrete is Zernitskaya with 10,667. The top six are rounded out by Melkonians with 10,190 votes and Raskin just behind him with 10,181. None of the other six candidates have received much more than 4,000 votes.

Top vote getters in the City Council election as of Nov. 25

Based on vote totals for the ballot measures, it seems that about 37,000 Santa Monicans voted in the municipal election. That means that Torosis and Zwick each received close to 50% of the vote. Historically that is a good showing. In contrast, Negrete received only about 31% of the vote and Melkonians 28%.

NOTE WELL: The next time you hear someone say or read some column or letter to the editor or Facebook post saying that Residocracy or SMCLC or other NIMBYs represent the people of Santa Monica, remember that Melkonians, with probably at least $100,000 of independent expenditure backing, only got 28% of the vote.

Negrete and Melkonians also had the advantage that their supporters could bullet vote for only the two of them or give their third vote to candidates who had no chance of winning. The four liberals split the vote, but the average vote of the four of them was significantly more than the average vote for Negrete and Melkonians: 13,669 versus 11,147. (Remember also that Negrete had some liberal support, particularly from the education community.) If only three liberals had run they would have won all three seats. (I.e., if the votes of any one of the four had been divided among the other three, all of those three would have won election.)

There was the same result in the School Board election. The three establishment liberal candidates, Laurie Lieberman, Richard Tahvildaran-Jesswein, and Alicia Mignano, all won easily against a grievance slate. Once again, the voters approved an education bond, this time for Santa Monica College.

The main takeaway is the return of the liberals, but what other conclusions can we draw from the vote?

The 2022 vote showed that liberals don’t need NIMBY votes to win elections in Santa Monica. This is contrary to what the leadership of Santa Monicans for Renters Rights (SMRR) has been saying for 40 years. While the positions of the four liberal candidates on housing and development vary somewhat, none of them are what I used to call “Santa Monicans Fearful of Change.” Therefore, it is not surprising that none of the candidates endorsed by SMRR, UNITE Here Local 11, and the Santa Monica Democratic Club (whose endorsements collectively cover all four liberal candidates) also received endorsements from the anti-housing, anti-development element of local politics.

Forgive me a personal note, but I feel vindicated by this. Ever since I have been active in Santa Monica politics, I have been saying two things: that the liberals didn’t need the NIMBYs, and that the NIMBYs had no loyalty to the liberals.

The latter point was easy to prove. As soon as a council member previously supported by the NIMBYs voted for more housing development, the NIMBYs would turn on him or her, something experienced over the years by many council members, including Richard Bloom, Kevin McKeown, Ted Winterer, and most recently Sue Himmelrich.

I couldn’t prove the first point, however, that the liberals didn’t need the NIMBYs, because there were no examples. SMRR always endorsed one or two candidates who also had support from the no growth side. In fact, SMRR’s support for those candidates, which got them elected, was the only reason the no-growth side has had so much power over the decades. SMRR enabled its most virulent haters. Cracks in this façade should have been evident when pro-houser Gleam Davis was the only SMRR endorsed candidate to win reelection in 2020, but it was not until this year’s election that a group of liberals ran against the NIMBY’s active opposition.

The second takeaway from this election is that Santa Monicans love the Democratic Party. Of the four liberals, the two who won, Torosis and Zwick, were the only two endorsed by both SMRR and the Santa Monica Democratic Club. As for Zernitskaya and Raskin, what was the most obvious reason that Zernitskaya did better? Zernitskaya was endorsed by the Democratic Club and not SMRR, and Raskin was endorsed by SMRR and not the Democratic Club. Historically SMRR and the Dem Club have been in sync, with the Club following SMRR’s lead, but this year they diverged, and the Dem Club endorsed Zernitskaya. Turns out that in in Santa Monica in 2022, mirroring the national mood, party loyalty was crucial.

This was borne out also by how every candidate, and/or the I/E campaigns supporting them, wanted to show what good Democrats they were. Resulting in some hilarious mailers, but no need to go into that.

Thanks for reading.

Stay the course, Santa Monica, but …

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We California voters are receiving our ballots in the mail this week. When I fill mine out, which will be soon, I’m going to mark it in favor of the five incumbents running for Santa Monica City Council: Gleam Davis, Ana Maria Jara, Terry O’Day and Ted Winterer, running for the four-year term, and Kristin McCowan running (unopposed) for the two years remaining in what was Greg Morena’s first term.

Three of these candidates, Davis, O’Day and Winterer, are long-time incumbents and I know them well. They are thoughtful and conscientious and work hard as members of the City Council in good times and bad. They deserve our support as the City faces challenges unprecedented in living memory.

Dealing with the three specifically:

Once upon a time I included Ted Winterer into the “Santa Monicans Fearful of Change” category, which he protested, and while Winterer can still be a bit nervous about zoning for more apartments, overall he’s a politician with real grace who listens to all sides of an argument and does his best to craft progressive solutions.

It shouldn’t be news to my readers that of all the council members, the views of Terry O’Day and Gleam Davis are most closely aligned with mine, particularly when it comes to housing development, supporting unions, environmental issues, and closing Santa Monica Airport.

The other incumbent running for a full, four-year term, Ana Maria Jara, has been in office for nearly two years. Since I’ve been less active in Santa Monica politics lately, I don’t know her personally as well as the other three. However, I have paid attention to her votes and what she brings to the council and the City. She is just what the City needs more of: a City Council member who is not defined primarily by her views about development. Jara comes out of the social and economic justice world, and her worldview is different from the “First World problems” orientation of so much of politics here.

I know Kristin McCowan only from what I’ve read about her, what I’ve seen her do on the (virtual) dais since her appointment, and what longtime Santa Monicans have told me about her and her family’s involvement in Santa Monica over the years. What I’ve seen, however, and learned about her, is inspiring and I hope she will become a beacon for the next generation of leadership.

You might think that with this excellent group of incumbents to vote for I would be happy about the state of politics in Santa Monica, but I’m not. The political status quo in our city is perilous. As happy as I am voting for the incumbents, because they’re good, it’s not healthy to have politics without a credible opposition, and a credible opposition is something Santa Monica lacks.

Back in May, with Juan Matute, I wrote two blogs about how obscure the finances of the City were. No one seemed to know how much money the City had available to it to help ride out the Covid-19 storm. Then at the end of May the civil disturbances after the murder of George Floyd broke out, with the twin fiascos of how police dealt with protestors (which also involved the City’s misuse of curfews that criminalized peaceful protests and caused more problems), and the looting that took place downtown.

Real life in the form of admittedly extreme events—the pandemic and the nation’s overdue response to systemic racism—exposed the reality that the City Council needs to supervise staff more closely. Santa Monica has a City Manager form of government, which means that the executive branch of our local government does not answer to the public in elections. The City Manager runs nearly everything and hires everyone except the City Attorney, yet the City Manager is not a mayor who answers to the people. The City Council must be not only a legislative body, but also the “electorate” that oversees the executive.

I believe that the incumbents running for reelection understand this, but what we lack in Santa Monica is an opposition that credibly questions how the City Council fulfills its role. This doesn’t mean that if there were such an opposition, I would not still in this case vote for the incumbents, but at least the important issues would be raised and there might be real alternatives.

Instead in Santa Monica the opposition has taken the form of the kind of nihilism that plagues so much of American politics today. I know three of the main candidates running against the incumbents well, and none of them would bring to City Council either policies or an approach that would serve Santa Monica constructively. Whatever their politics are outside of Santa Monica, their rhetoric within the city sounds like the Tea Party.

Mario Fonda-Bonardi, as a Planning Commissioner and columnist, has put forward a constant stream of phony progressive mumbo-jumbo designed to hide adamant opposition to building a city for the next generation. He is par excellence a Santa Monican Fearful of Change.

Phil Brock has a long history in Santa Monica public affairs, but it’s a long history of saying anything to please whomever he is speaking to, and then invariably catering to the squeakiest wheel.

I formerly was a strong supporter of Oscar de la Torre (even once drafting for him a long defense, to give to the City Council, of his management of the Pico Youth and Family Center), but he lost me somewhere between his careerism at the Center, his embrace of anti-housing policies, and then his joining with fee-seeking lawyers to bring the district elections lawsuit. Given the demographics of Santa Monica, district elections might benefit de la Torre personally, but they would diminish the clout of Hispanic voters rather than increase it.

I don’t know Christine Parra, and she seems to be a well-respected civil servant in Culver City, but there’s nothing in her campaign that goes beyond the usual “let’s keep them out” slogans.

It didn’t use to be this way in Santa Monica. Back in the 90s when I became actively involved in local politics, there was content in the political conflict we had, and real choices. Then as now Santa Monicans for Renters Rights (SMRR) was the dominate political force, and overall that was good for Santa Monica, but the platforms of the opposition politicians were more than various combinations of “Raise the Drawbridge!” and “Throw the Bums Out.” Whether you voted for them or not, council members like Bob Holbrook, the late Herb Katz, Bobby Shriver, and Paul Rosenstein cared about the city and its future in a changing world and brought constructive ideas to the discourse. There was pluralism within SMRR as well: “development skeptics” who received the SMRR endorsement, council members I often disagreed with such as the late Ken Genser and Michael Feinstein, had nuanced views, cared about social justice, and often surprised everyone (including themselves!) with their votes.

To reiterate: please join me and vote for all five incumbents. Happily. They’re good people. But here’s hoping for a rebirth of a principled opposition.

Thanks for reading.

New realities and housing policy in Santa Monica

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Wednesday night there will be a joint meeting of the Planning and Housing Commissions to discuss the future of Santa Monica’s housing policies. (Don’t ask me why there is a joint meeting. The commissions have a total of 13 members, all of whom should have thoughts about those policies. Anyway – expect heat, hope for light.)

Events are moving fast when it comes to housing policy. Decades of chickens, in the form of resistance to building needed housing in coastal California, including in Santa Monica, have come home to roost. A devastating shortage of housing has jacked up rents (meanwhile making homeowners rich) and created unprecedented levels of economically-caused homelessness. Finally the State of California and regional authorities are doing something about it.

I highly recommend reading the staff report for Wednesday night’s meeting. The report does primarily two things: (i) it reviews state and regional actions since 2017 designed to stop local governments from preventing housing from being built and to require them to plan for, allow, and facilitate more housing, and (ii) it presents data from the consultants hired by Santa Monica showing that extending affordable housing inclusion requirements mandated two years ago on development in downtown Santa Monica to the rest of the city would make housing development outside of downtown infeasible (as it has largely become in downtown).

As for the new limitations on local government’s control over land use, California has enacted various laws since 2017, described in the staff report, encouraging and expediting housing development. When it comes to dramatic change, however, nothing beats what happened November 7 at the regional level. Responding to dramatic action from the governor to require plans for more housing development, and concerted action by housing activists, our regional planning authority, the Southern California Association of Governments (SCAG), made the overdue acknowledgement that the region needs a large number of new housing units, 1.3 million, and that the majority of those units need to be built, because of existing need, near concentrations of jobs and transit along the coast.

The new SCAG housing numbers, assuming they are approved by the California Department and Housing and Community Development (HCD) and survive the inevitable litigation from coastal cities, will require drastic revision of housing policies in Santa Monica if the City is going to avoid fines and other penalties. The new requirement for Santa Monica will be a net increase of about 9,000 units over eight years. To give you an idea of how dramatic this change is, over the past 24 years, the average number of new units built in Santa Monica was 217. (For more data about housing production in Santa Monica, see this post of mine from last spring.)

Still, lest anyone panic (I’m sure people are), 1,000 units per year would be only about a 2 percent annual increase in the number housing units in Santa Monica, and 9,000 units would be a less than 20 percent increase over about a decade. But the increase is overdue; from 1980 to 2018 the total number of units in Santa Monica increased only about 14 percent (from 46,393 to 52,871).  An increase to 60,000 units is nothing a city with Santa Monica’s resources can’t handle. (I won’t go into it now, because I’ve written so often about the real impacts of population growth in Santa Monica (as opposed to the mythical), but these new residents will not contribute to the traffic that results from commuters coming to Santa Monica and the Westside in the morning and leaving in the afternoon. In fact, to the extent the new residents have jobs on the Westside, they will reduce those trips.)

The rest of the staff report, including exhibits, is all about a financial analysis the City Council asked for regarding what would happen if the City extended the affordable housing requirements of the 2017 Downtown Community Plan (DCP) to the rest of the city. Why the City would consider extending the requirements is a mystery, since those DCP requirements have resulted in little housing, and virtually no affordable housing, being built downtown. (You can read more about the disaster of the DCP here.)

The reason for the analysis is, however, that there are a lot of “pseudo-housers” active in Santa Monica politics, including a large contingent in Santa Monicans for Renters Rights (SMRR). Yes, it’s ironic that an organization dedicated to the interests of apartment renters consistently supports the traditional antipathy of suburban homeowners against apartments. SMRR has always opposed the building of apartments unless they are deed-restricted affordable, which is another way of saying they don’t want apartments to be built, given that it’s difficult to find funding for subsidized, standalone affordable projects. SMRR is the best friend of apartment owners who want to increase rents when rent-controlled units are vacated, because SMRR fights the building of new units that would compete. The pseudo-housers like nothing more, however, than to enact laws that proclaim their “progressiveness” even while demonstrating their opposition to any change in the perfection they evidently find in Santa Monica. That’s why they are pushing an extension of the DCP requirements.

Genuine needs for genuine, not rhetorical, progress, however, are catching up to the pseudo-housers, not only because of high rents and homelessness, but also because of the broad recognition that to reduce carbon emissions it is going to be necessary to live more densely, closer to jobs and transit.

Regardless why the City decided to study extending the DCP requirements, I’m happy to report that the same consultants who too-optimistically found in 2017 that the DCP requirements would not impede housing development downtown have realistically determined that extending those requirements citywide would make nearly all housing development infeasible, especially when compared to the profits that can be made by commercial development. (I wrote about the financial advantages for commercial development in this post from 2017.)

Getting back to Santa Monica’s pseudo-housers, I can predict how they will respond to the new SCAG housing assessment of 9,000 units. About one-half of these units should, according to SCAG, be affordable to low-income households. This is undoubtedly correct (although I don’t believe SCAG has fully taken into account the impact of building new housing on the preservation of affordability in old housing). What I predict, however, is that Santa Monica’s pseudo-housers will seize on this data point and demand that all housing development in Santa Monica be 50 percent low-income affordable. Of course, this would kill private investment in housing, which is what the pseudo-housers want. (To the extent market-rate and moderate-income housing is not built, old, affordable housing stock will continue to be cannibalized and turned into higher-priced housing, but that has never bothered the pseudo-housers.)

So, with all this, where should the City go with housing policy? To me, the City should first return to prior tried-and-true policies that resulted in housing, including affordable housing, being built in Santa Monica over the past 25 years. Then the City should also build on policies, such as the new state law on additional dwelling units (ADUs), to encourage more housing. These policies would include:

• In all commercial zones, give residential housing a double FAR over commercial. This advantage for residential development resulted in around 2,000 units being built in downtown Santa Monica, and the conversion of commercial zoning to residential development means less traffic. It would also solve the “site” problem, since Santa Monica has lots of underbuilt commercially-zoned land.

• In general, increase the zoning envelope to the maximum allowed in the general plan, but at least by one story in all multi-family and commercial zones.

• Return to the moderate-income policy that existed under Measure R until a few years ago, by which a developer could build a 100 percent moderate income project without other requirements. This policy resulted in hundreds of deed-restricted moderate-income units, many of which are now occupied by Section 8 tenants, being built without a dime of public subsidy. A few years ago the pseudo-housers killed this unsubsidized moderate-income development by adding a low-income requirement.

• For the minimum of 15 percent of total units that need to be (and should be) low-income under Measure R, rely on and fund non-profit developers (such as CCSM and homeless service providers like Step Up or the People Concern) and require a small, perhaps 10 percent, inclusionary requirement on large market-rate projects (meanwhile charging a significant in-lieu fee on smaller market-rate projects).

• Look into ADU zoning that would allow ADUs big enough for families to be built in R1 zones.

• Reduce or eliminate parking requirements for housing.

But above all, dear planning and housing commissioners, follow Hippocrates. “First, do no harm.” Resist the pseudo-housers.

Thanks for reading.

Santa Monica in 2018: Are All Politics Still Local?

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(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.

Election analysis: LV lost big, bigger than you think

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I haven’t written here for a while. It’s easy for a little hiatus to become a long vacation, especially over the holidays, and especially, if you write a column about local news, when national news is all consuming. Yet given a national election where the electorate divided along the spectrum from urban to rural, has it ever been more evident that “all politics is local?”

Here in Santa Monica the November results are still resonating. The sensitivities of the losers of the election over Measure LV are raw, as evidenced by Tricia Crane, one of the authors of LV. Last week Crane, who is active in both Residocracy and Northeast Neighbors, criticized City Manager Rick Cole for identifying in an email “longtime vocal critics of city government, particularly on the controversial issue of development” as “longtime vocal critics of city government, particularly on the controversial issue of development.”

As reported in the Lookout News, Crane objected to Cole’s characterization of longtime vocal critics as longtime vocal critics because, “As one who believes that democracy depends upon the free exchange of information and ideas, I find the label ‘longtime vocal critics’ to be troubling.” This coming from someone who personally and through her organization has never found it troubling to call anyone who supports building anything in Santa Monica to be, if a politician, corrupt and, if not a politician, a tool of developers.

But wait, there’s more. Crane then told the Lookout that, “Measure LV was supported by 45 percent of Santa Monica voters.” This, as anyone who has studied the election results knows, is false. While LV received the votes of 45% of those voters who voted on the measure, a trouncing in and of itself, about 17% of Santa Monica voters did not vote on LV. As a result, far fewer than 45% of Santa Monica voters supported LV.

The numbers? The total number of ballots cast in Santa Monica in November was 51,662. The number of Yes votes for LV was 19,786. Divide the latter by the former and you get 38.3%. Yes, I know, only the votes cast for or against a measure count when it comes to victory or defeat, but consider the rhetoric that we’ve heard from the anti-development crowd over the years, about how they are the residents, and about how unhappy the residents are. Given that that’s been their mantra, and that’s why they put LV on the ballot, isn’t it their burden to show that that is true? (If you want to review the numbers yourself, click here to access a PDF of all the Santa Monica November results.)

To repeat: only 38.3% of Santa Monica voters supported LV. (By the way, the figures for RIFT in 2008 were about the same.)

About now LV supporters will tell you LV lost because of the money developers spent against it, but go ask the aviation industry whether money wins elections in Santa Monica.

Getting back to the results, there were only two precincts in the city where LV won, but even in those precincts (which are on the eastern edge of the city between Wilshire and Montana) the Yes vote was less than 50% of the total number of ballots cast.

What about self-appointed neighborhood associations that supported LV? They didn’t reflect their residents. Two of the most anti-LV neighborhoods were North of Montana, the home of historically anti-development NOMA and the base for the Santa Monica Coalition for a Livable City (SMCLC), and the neighborhood between Wilshire and Montana west of 20th Street, the home of the WilMont Neighborhood Coalition. LV lost also in Sunset Park.

But the LV numbers tell only half the story. Any measure will get a certain number of votes just for being on the ballot, particularly one that promises to solve traffic congestion. Thirty-eight percent of Santa Monica voters voted for LV, but how many are truly up in arms about development?

We received an answer to that question in November, courtesy of Residocracy’s founder, spec-mansion developer Armen Melkonians. Melkonians ran for City Council on a hard anti-development platform. In past elections most serious candidates running on an anti-development platform (and all of them who have won election) have run with the endorsement of Santa Monicans for Renters Rights (SMRR). Melkonians, however, was an anti-development candidate who ran a strong campaign without a SMRR endorsement. Not only that, but (future write-in candidate) Phil Brock cleared the decks for Melkonians by not filing papers to run for council, and SMRR left an open seat by not endorsing incumbent Terry O’Day.

How did Melkonians do? He received 12,603 votes. Divide that number by 51,662, the total number of voters, and Melkonians’ tally was 24.4%. Meaning that not even a quarter of Santa Monica voters were angry enough about development to pay attention to local politics and then vote for the candidate who channeled that anger.

That doesn’t mean government shouldn’t continue to regulate development. Government regulates lots of businesses and industries. But we shouldn’t let the most extreme “vocal critics” set the agenda and control the debate.

These election results are, by the way, consistent with data from the City’s surveys over the years about the attitudes of residents. Most are happy to live in Santa Monica, and when asked (open-ended and unprompted) to name issues that concern them, only about a third mention traffic (and many fewer mention development).

Yet we have a political class that runs for cover whenever Residocracy or SMCLC say they speak for the residents.

Thanks for reading.

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

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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: the firing of Elizabeth Riel, a chronology

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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.

Getting philosophical about water

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In California it’s hard to stop writing about water once you start, and after I posted last week’s piece about water rates, more thoughts bubbled to the surface. (Sorry.)

For one, what about the fact that opponents of the rate increase persuaded about a quarter of the city’s property owners to file protests against the rates? Under Prop 218, if a majority of them had protested, the rate increases could not have gone into effect. What if the organizers of the “no” campaign had succeeded?

It’s frightening. The Water Division would have gone into deficit. What might have happened then? It’s like in Washington where people play politics with shutting down government. It’s nihilism.

By any measure, Santa Monica is a well-run municipality. Elected representatives have made responsible choices over the decades, particularly in connection with infrastructure and essential services, like water. Going back more than a century we have had a citizenry with admirable public spirit that has voted time and again to tax itself to pay for what the city (and schools) need. What’s with all this anger and spite? You’re telling me that because traffic is bad Santa Monicans don’t want to pay what it costs to keep their water running?

And no, it’s not about enabling development and yes, Council Member Sue Himmelrich was correct when she said that water was underpriced.

Another thing that I thought more about since last week is whether the City should borrow money, by issuing bonds, to pay for water system capital expenditures. This is a possibility that the City Council left open when it increased rates.

I support municipal borrowing for infrastructure, but debt is not always appropriate. It’s like with any enterprise. Borrowing makes sense when a city needs to make large expenditures, too large to be paid for with current income or accumulated savings, to build assets that will have a long lifespan. Santa Monica voters did the smart thing a century ago when they approved bonds to pay for buying water rights and for the initial building of the system, because they didn’t have the cash.

But that’s not the case now: the system is built and for the most part capital expenditures are needed only to maintain it. It’s not a good idea to borrow money for routine expenditures, and that includes maintenance. The current capital plan, according to a staff report to City Council from last June, is to spend about $3.5 million each year, about 11 percent of the Water Enterprise Fund, to replace aging water mains.

The City has about 250 miles of water mains. Some pipes, made of cast iron, go back to the 1920s. Old cast iron pipes not only might burst, but they also rust inside and that reduces water pressure and flow. Typically it costs $3.5 million to replace 9,000 linear feet of pipe, a little less than 2 miles, with pipes made of more advanced materials, such as ductile iron or polyvinyl chloride (PVC).

This pace may not be fast enough. Water mains may last a century, but replacing less than two miles per year will not recycle a 250-mile system in 100 years. As the pipes from the system’s big expansion in the 1920s hit the century mark, the Water Division may need to pick up the pace. But even so, it’s unlikely that the City will need to spend tens of millions of dollars at any one time. Is it going to make sense to borrow? We’ll have to see, but I doubt it.

Last week the City Council was considering rates for the next five years, and chose not to raise rates in years two through five by the 13 percent that Water Division staff had recommended. I agree with those council members who expressed caution about spending $6 million over five years on new water meters, money that makes up much of the difference between 13 percent and the 9 percent increase that council approved. I suspect, however, that the realities of maintenance will mean that higher rates will be required in the future.

Some opponents of the rate increases who want the city to borrow to pay for capital expenditures say that it’s not fair for them to have to pay for infrastructure that will be used by future generations. I discussed this argument in my last column, but the more I think about it the question raises philosophical issues. I have to ask: what are we doing here, in this city (and in this world), if not to leave it (or both) a better place?

When I moved to Santa Monica more than 30 years ago I received the benefit of all the investments prior generations had made not only in our water system, but also in streets, parks, schools, etc. It’s our turn.

And so what if we leave better public facilities for future generations? In my view, that’s something I’d be proud of, not resentful about.

Thanks for reading.