City Contemplates Suit Against Anti-Corruption Initiative

By Jorge Casuso

The City of Santa Monica is contemplating filing a lawsuit charging that an anti-corruption initiative approved by 58 percent of the voters last month may be illegal.

At Monday night's meeting of the Architectural Review Board, deputy City Attorney Barry Rosenbaum said that the legality of Prop. LL -- which City officials predict will chill citizen participation on boards and commissions -- was "questionable."

"This measure is subject to legal challenge," Rosenbaum told the ARB. "The City Attorneys office is examining what approach is best to get it before a court so the legality is assessed by a court.... Its constitutionality will need to be assessed."

The charter amendment, sponsored by the Ralph Nader-backed Oaks Project, prohibits elected officials and appointees to the City's various boards and commissions from accepting money, gifts and jobs from contractors they deal with in office.

City officials contend that the amendment is unnecessary because City election law already limits campaign contributions to $250 for Council races (the only elected office). They also point out that in Santa Monica contracts -- which are a key component of the measure -- are hammered out by paid City staff.

Rosembaum said that a trial court ruled that a similar initiative in Vista (also sponsored by the Oaks Project) was illegal. The decision was appealed, but the appeals court delayed hearing the case pending the outcome of the Nov. 7 election.

When a competing measure in Vista garnered more votes than the Oaks initiative, the court decided not to hear the case, Rosenbaum said.

Although Prop LL might apply to the City Council and Planning Commission, which sometimes make land use decisions that could be covered by the measure, it might also apply in isolated cases to the ARB.

That's because the board sometimes grants sign adjustments or modifications, such as building stepbacks, which could affect the value of a property. But Rosenbaum was cautious in predicting whether or not the measure would cover such decisions.

"At this point it's unclear whether this provision would apply to your decisions," Rosenbaum told the ARB.

Rosenbaum's comments came during a briefing of the board that also covered due process and conflict of interest issues.

When it comes to due process, Rosenbaum said, any decision "needs to be based on the information before the body." He added that if a board member "is engaged in communication with an applicant, members of the public or opponents, they would place those conversations on the record at the beginning of the meeting."

Of special concern was the potential violation of due process by members of City boards and commissions who sit on the boards and committees of neighborhood groups, Rosenbaum said. Often, these groups will take positions on issues that will later be taken up by the City board or commission.

"We think that does raise issues of pre-judgement," Rosenbaum said. He recommended that board members "not sit on both processes."

Board member Allison St. Onge, an Ocean Park real estate agent who sits on the Ocean Park Community Organization's review committee, asked several straightforward questions during the discussion.

"Do I have to step down?" St. Onge asked.

"You could recuse yourself when the item comes before the ARB," board member Chris Joseph suggested.

"I couldn't do that," St. Onge said. Directing her question to Rosenbaum St Onge then asked, "Can I attend meetings and not speak or vote?"

"One needs to distinguish between policy issues and the specific facts of a case," Rosenbaum said, noting that a board member should not engage in any discussion of a specific project.

St. Onge than asked what happens "if an applicant calls us and asks us to look at the (architectural) plans."

"That needs to be put on the record," Rosenbaum said. But he also warned that "if you've had extensive conversations such that you have formed an opinion, (it) could have prejudiced (you) even if you put it on the record."

Rosenbaum then gave a short presentation on conflict of interest, which occurs when board members attempt to use their position to influence a decision.

Again, St. Onge had a specific question, asking whether it was a conflict of interest to take a client to the planning counter to ask staff questions.

Rosenbaum said that questions can be raised if board members appear to be using their influence.

But most of Rosenbaum's briefing centered on Prop. LL, which forbids any elected or appointed official from receiving "any personal benefit or gift worth more than $50, any employment for compensation and any campaign contribution for any elective office sought by the official," according to the City Attorney's ballot statement.

Under the new amendment officials cannot receive gifts from public benefit recipients for two years after the expiration of their terms, two years after the official's departure from office, or six years from the date the official acted to approve the allocation, whichever comes first.

Under the new law citizens would be authorized to bring civil enforcement actions. Civil remedies would include penalties, restitution to the City, injunctive relief and disqualification from future public office. A resident prevailing in a civil action would be entitled to attorney's fees, costs and 10 percent of any civil penalty, with the balance going to the City's general fund.

The City may be exploring options other than a lawsuit.

City Councilman Michael Feinstein has expressed interest in backing a anti-corruption ballot measure more clearly tailored to Santa Monica's needs.

"It's not impossible that we could do a follow-up measure to address the unintended consequences -- if there are any -- in a manner that the Oaks would contribute to and support," said Councilman Feinstein, who also is a Green Party member.

The Oaks are also considering taking a version of Prop. LL statewide. Along with Santa Monica, San Francisco also passed a similar measure with 82.5 percent of the vote.

The measure also made the ballot in Vista, in San Diego County, but it lost to a counter initiative crafted by the city that limits any gifts to elected officials.