Councilman did not Violate Charter, Court Rules

By Jorge Casuso

Jan. 21 -- An Appeals Court ruled Tuesday that a Santa Monica Councilman did not violate the City Charter when he suggested to staff that a boy’s backyard playhouse may have been in violation of the zoning code, setting off a highly-publicized three-year legal battle.

In a published decision, the 2nd Appellate District Court concluded that Councilman Ken Genser did not give staff orders or lobby them to take a position when he sent two emails inquiring about the playhouse on behalf of a constituent.

Barring Genser’s right to such communication with staff violates the First Amendment, the court wrote in a ruling that attorneys for the plaintiffs have vowed to take to the State Supreme Court.

“(W)e conclude, among other things, that a city council member did not violate (the charter) by speaking with city planning department employees on behalf of a constituent to inquire about a structure built on a neighbor's property,” Presiding Justice Arthur Gilbert wrote.

“An injunction to prevent such communication violates the First Amendment. The First Amendment protects everyone, even politicians.”

The ruling reverses a Superior Court judge’s decision to deny the City’s motion to strike the suit filed against Genser and the City in September 2000 by David and Beth Levy, who charged that Genser's emails prompted planning officials to reverse their initial decision that the $11,000 playhouse did not violate city codes.

City officials -- who argued the suit is without merit and violates a state law that shields those who speak out to government, such as constituents -- applauded the decision, saying it came as no surprise.

“This should bring an end to this dispute, which has been overblown from day one,” said Assistant City Attorney Joe Lawrence. “This was a completely self-inflicted injury on their part. It was totally unnecessary and a dispute that was oversold to the public on day one.”

Genser called the lawsuit -- filed by prominent land use attorney Chris Harding --“political” and said the merits of the case were “pretty absurd.”

“This was a lawsuit that was done with spin,” Genser said. “At no time ever in the correspondence did I advocate any action be taken.

“They allege I have a pattern and practice of influencing staff,” said Genser, who is serving his 16th year on the council. “I have been there long enough to know where the boundaries are. I don’t cross them. I don’t even approach them.”

Harding -- who contends the case illustrates a longstanding practice by council members of micro-managing city government and pressuring staff -- called the court’s ruling political.

“We think it’s a political decision and not a legal decision, and we plan to take it to the California Supreme Court,” said Harding, a frequent challenger of the City’s zoning policies. “The court has a predisposed political view about what politicians should be doing.

The judges, Harding said, misread the City Charter, which forbids council members from giving “orders to any subordinates of the City Manager, either publicly or privately” and only allows them to communicate with staff “for the purpose of inquiry.”

“We remain concerned about the lobbying of staff on administrative items,” Harding said. “We don’t think the court dealt seriously with the first amendment issue. They had a gut-level political reaction to this matter, and we think they’re wrong.”

Harding said Genser’s first email sent to City Planning Director Suzanne Frick on March 15, 2000 was fine. It read, "[C]ould you look into this? Is this structure being built without permits? And could it be built with a permit? Please feel free to contact (Garai) directly,” he wrote, referring to Tunde Garai, the constituent who brought the issue to his attention.

It was Genser’s subsequent email asking Frick to find out the status of the complaint that crossed the line, Harding contends.

In the email, sent on April 2, 2000, Genser wrote, "I just did a 'quick' review of the code. I can't say that I am necessarily accurate… but: Mike's (City building inspector Mike Gruett’s) letter said a 5-ft. rear setback was required. I think the code requires the same rear setback as the rear yard -- generally 15 feet (?) I wonder if the space under the first floor should be considered a story. (I haven't found a citation to support this -- yet.)"

“We think the initial contact was a legitimate inquiry,” Harding said. “But he went back with a second email and pressed his point. We think he went over the line… It was the persistence. He was essentially arguing (Garai’s) case.”

But the court disagreed. Genser’s emails, which were also sent to the City Manager, did not violate the charter, the court found.

“The Levys did not show that Genser gave orders,” the court wrote. “Genser's declaration states he ‘never instructed or ordered’ any City staff ‘to take any specific enforcement action.’ Frick said she did not consider the e-mails to be orders.”

The court also shot down the Levys efforts “to enjoin council members from advocating their constituents' positions, applying ‘direct pressure’ or ‘engaging in acts designed to influence’ City administrative staff.

“(T)hat,” Gilbert wrote for himself and Justices Kenneth Yegan and Paul Coffee, “is an overly broad restraint on speech which would inhibit constitutionally protected activity.”

There is a fine line between inquiry and advocacy, the court found, and the interpretation could be subjective.

“For some, a council member's inquiry for a constituent is advocacy simply because it calls attention to the constituent's position,” the court wrote. “To the head of a city agency, a council member's act of faxing citizen complaints about the agency might be considered an ‘act designed to influence’ or ‘direct pressure.’

“For the Levys, an inquiry is advocacy where it could change the status quo or influence the result. Under their definition, virtually all inquiries would be suspect.”