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Hire-Fire Episode Raises Legal and Ethical Issues

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By Jonathan Friedman
Associate Editor

June 19, 2014 -- City Manager Rod Gould’s reversal on a decision to hire Elizabeth Riel as the government’s spokesperson possibly due to past political activity raises some ethical issues, said legal and ethics experts interviewed by The Lookout.

Riel was hired as the City’s spokesperson in May, but two weeks later Gould said he had rescinded the offer. This has led to a political firestorm, with calls for a full review of the episode and Riel has sued the City.

Slow-growth advocates allege Riel lost the job because of political activity, including in 2006 when she financially participated in the City Council campaigns for Kevin McKeown and against Pam O’Connor. The two are political opponents.

Gould has refused to say why he changed his mind, but he issued a press release as the tension was growing that said among other things that a City spokesperson must be “apolitical.”

Jessica A. Levinson, a Loyola Marymount law professor who specializes in elections and governance, told The Lookout that apolitical is a difficult standard to meet.

“Very few of us are honestly apolitical,” Levinson said. “The question here is was the person so partisan that she would be unable to do her job? I’m not sure.”

She added, “Often, the people who want to get involved in City government, they are the people who are engaged in the political process. And people who are engaged are not apolitical.”

Hana S. Callaghan, director of government ethics at Santa Clara University’s Markkula Center for Applied Ethics, said a public employee “has a duty to fairly and impartially represent all of the public that he or she serves.”

Callaghan wrote in an email to The Lookout, “Members of City staff have a duty to implement council policy. It is not their job to make policy. That is the purview of the duly elected public representatives."

She continued, “The question becomes does past political activity rise to such a level so as to render a job candidate unable to fulfill the nonpartisan nature of the position and potentially disrupt the efficient operation of the workplace?

"A city manager must determine whether in fact an employee can truly leave his or her politics at the door.”

Callaghan stressed that she did not have enough facts to determine how Gould made his decision.

Peter Scheer, executive director of the First Amendment Coalition in the Bay Area, said it is possible Gould was justified in rescinding Riel’s hiring. However, he said there are many “ifs” involved.

“If [being apolitical] was clearly the policy all along and not just something that was invented after the fact to justify what was done and if that requirement was communicated to all the applicants to the job, then I think they might be able to insist that the successful applicant have a political history that is essentially absent of overt partisanship,” Scheer said.

But he questioned whether being apolitical was a requirement for the job, noting the subject does not appear in the job notice that can still be found on the Internet.

“It’s not as though she has a past history of some kind of extreme KKK membership on the right or something equally offensive to most citizens on the left," Scheer said.

"Frankly, I don’t give much credence to either the need for non-partisanship or that that’s what they have ever done. When’s the last time some prominent Republican was hired in any position in Santa Monica?”

He added that “it just seems as though they've discovered some new fairly extreme job requirement after the fact” and “insisting someone have no political history at all is in some ways objectionable in the same way insisting someone have a specific political record would be.”

Scheer, who is a lawyer, said he believes the City could win the lawsuit for other reasons, but did not believe it could justify rescinding the hiring based on what he called an “after-the-fact prerequisite.”

Levinson said the situation raises several legal issues, but it would be difficult for him to determine who is in a better position without seeing Riel’s employment contract.

She referred to the possibility that O’Connor influenced Gould’s decision as “not looking great.” Slow-growth advocates have made this allegation.

O’Connor told a Santa Monica newspaper that she “might” have spoken to the City manager about Riel. Gould has the power to decide who could be hired for this position, and no City Council vote was taken.

“It’s very problematic for one City Council person to veto a hiring, not on the basis of merit, but on the basis of preference, potentially personal preference,” Levinson said. “You should hire the person who is best qualified and can do the job.”

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