Slapping Down a Council Colleague with a Self-Regulated Ethics Program
It's hard to know where to start with a situation in Crescent City, CA,
a town of 7,500 in northern California that has already been the
subject of <a href="http://www.cityethics.org/node/549" target="”_blank”">a City Ethics
blog post</a>.<br>
<br>
One of the most striking things about the situation is that it is the
first time I have seen an anti-SLAPP-suit defense used successfully against someone who
appears to have been found guilty of an ethics violation in order to stop
her criticism of council actions (that is, by SLAPPers against someone they themselves SLAPPed).<br>
<br>
SLAPP stands for Strategic
Lawsuit Against Public Participation. <a href="http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participa…; target="”_blank”" target="”_blank”">Wikipedia
defines SLAPP suits</a> as suits "intended to intimidate and silence
critics by burdening them with the
cost of a legal defense until they abandon their criticism or
opposition." The goal of the SLAPPer is not to win the suit, but to
prevent speech or
action.<br>
<br>
In ethics cases, SLAPP suits are generally brought against citizens,
not elected officials. That is, the suits are brought against the complainant, and sometimes against the ethics
commission and its members. But here there was no complainant, and the
violation was found, and the
censure made, not by an ethics commission but by the city council, on
which the respondent sat (there
are only five council members).<br>
<br>
And yet the federal district court for the northern district of
California found in <a href="http://www.courthousenews.com/2011/06/01/cc.pdf" target="”_blank”">a May 26
decision</a> that the state's anti-SLAPP suit applies to the council
member's cause of action against her counciil colleagues for intentional infliction of emotional
distress, even though the suit had no effect on public participation
and was brought not against a critic, but by a critic. This decision
is, however, no more ridiculous than the rest of the affair.<br>
<br>
<b>Enforcing an Aspirational Code of Conduct</b><br>
On
March 2, 2009, the council unanimously passed a code of ethics and conduct for
council members only. I could not find a copy of it, only one provision
at the bottom of a council agenda:<ul>
<b>Respect for Fellow Elected or Appointed Officials, Staff and the Public</b>
- I treat my fellow officials, staff and the public with patience,
courtesy and civility, even when we disagree on what is best for the
community.</ul>
This is not an ethics provision, but a conduct provision. And it is
clearly not intended to be enforced. It is aspirational.<br>
<br>
In fact, in <a href="http://www.crescentcity.org/Minutes/030209.pdf" target="”_blank”">the
minutes
of the council meeting where the code of ethics was unanimously
approved</a>, the city attorney, in response to questions from the
council member who was soon to be censured, "stated that what this
document does is establish a general set of moral guidelines. The FPPC
[the state ethics commission] trumps this because those are the actual
state laws. Nothing in this code requires any reporting. It is more of
a plea to your good judgment."<br>
<br>
One of the council members who was soon to vote for the censure "stated
that to
him, it is about common sense. It refers to personal gain, not cleaning
up the city. [He] said you have to look inside yourself."<br>
<br>
Another council member who was soon to vote for the censure (then the
mayor)
stated that the "Code of Ethics is to be used as a gentle reminder. It
was suggested that [the to-be-censured council member] make a list of
specific items and call the FPPC for their opinion."<br>
<br>
In other words, there was no indication that this was anything other
than an aspirational code of conduct. The state ethics code was the
enforceable ethics code. Any enforcement of the new ethics code would
be unexpected and, therefore, unfair.<br>
<br>
What did the council member do to be found in violation of the ethics code?
According to the court decision:<ul>
(1) knowingly using false, inaccurate, and/or partial information to
support Plaintiff’s views regarding the WWTP [waste water treatment
plant, the major matter that the council member was investigating and
making accusations regarding]; (2) treating “fellow city officials and
staff with lack of patience, courtesy and/or civility when in
disagreement”; (3) not working towards consensus building; (4)
repeatedly exhibiting “discourtesy, disrespect and disregard towards
council members, city department heads, staff and/or personnel in the
performance of her official duties”; (5) using Plaintiff’s position as
an appointed representative of the city to promote her personal
quilt show; (6) using Plaintiff’s position as an appointed
representative of the city “at the Intergovernmental Relations
Committee (IGRC) to repeatedly slander, discredit and embarrass the
City”; (7) continually demonstrating “a lack of concern for the proper
use of city assets ... in [Plaintiff’s] continual misguided accusations
associated with various aspects of the” WWTP; (8) abusing her
position by “contacting lower-level City employees at their homes
outside of work hours” in her “quest for ‘evidence’ to support her
theories and claims of corruption and criminal misconduct”; and (9)
continuing to not be a prudent steward of city resources.</ul>
Of this list of violations, only No. 5 is a true ethics (as opposed to
conduct) violation.<br>
<br>
It is clear from this list of violations that the council members were
indeed trying to silence their colleague. They let it be known that any
accusation against them that they considered false, inaccurate, or
partial could be turned into a censure. They let it be known that
any colleague who did not work toward consensus building, that is, who
criticized the majority, would be censured. They let it be known that
any colleague who took her criticism outside the town would be censured.<br>
<br>
And by censure, they didn't
just mean admonishment. For about a year, their censure motion removed
the council member as a representative or alternate on eight
committees; prevented the council member from placing on the agenda
items regarding the WWTP “without the specific advance authorization of
the full Council”; and directed independent contractors for the city
not to
expend billable time responding to the council member’s inquiries or
data requests.<br>
<br>
But filing a civil rights suit against and attempting to recall your
fellow council members is hardly the right way to get your message
across. I don't think the suit was a SLAPP suit, but it certainly was a
waste of resources.<br>
<br>
What happened in Crescent City is just another instance of using a
self-regulated ethics code to play politics. It's no wonder so many
elected officials do not want an independent body overseeing their
ethics program. This takes them out of the driver's seat in the race to
abuse "ethics" for political purposes.<br>
<br>
If Crescent City had a good ethics program, perhaps the council member would have filed a complaint with it rather than making accusations all over town, and outside of town, as well.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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