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Slapping Down a Council Colleague with a Self-Regulated Ethics Program
Friday, June 3rd, 2011
Robert Wechsler
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 City Ethics
blog post.
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).
SLAPP stands for Strategic Lawsuit Against Public Participation. Wikipedia defines SLAPP suits 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.
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).
And yet the federal district court for the northern district of California found in a May 26 decision 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.
Enforcing an Aspirational Code of Conduct
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:
In fact, in the minutes of the council meeting where the code of ethics was unanimously approved, 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."
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."
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."
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.
What did the council member do to be found in violation of the ethics code? According to the court decision:
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.
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.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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).
SLAPP stands for Strategic Lawsuit Against Public Participation. Wikipedia defines SLAPP suits 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.
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).
And yet the federal district court for the northern district of California found in a May 26 decision 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.
Enforcing an Aspirational Code of Conduct
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:
-
Respect for Fellow Elected or Appointed Officials, Staff and the Public
- 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.
In fact, in the minutes of the council meeting where the code of ethics was unanimously approved, 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."
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."
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."
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.
What did the council member do to be found in violation of the ethics code? According to the court decision:
-
(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.
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.
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.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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