Bottom Line Meant for the New Guy

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Originally posted on April 12, 2013 by Mitch Green

Tonight I’m writing from my wife’s house just 100 or so yards outside of Simi Valley City Limits, tacked high up in the hills on the western most edge of the Santa Susanna Knolls. I’m sitting on the front balcony, the view is incredible, maybe 30 or more miles visibility, the sun has set with spiraling magenta streams swirling in the clouds against blue skies and the train has just left the station down below. I’m wearing my old City Attorney sweatshirt, Wendy is barbequing and the phone just effing rang derailing my chain of thought (thanks Kelly).

I call Casa Verde my wife’s house because as a guy, paying for multiple dwellings including one with a magnificent 40 foot salt water pool which I’m restricted from using by certain court orders, I recognize the fragility of any situation. Hence my recognition, be it late in life, to kiss the ground my wife walks on if for no other reason than to continue to enjoy visitation rights to those properties I get the privilege of paying for. And with my charm and track record, maybe you can understand why I keep an Airstream in town. Its certainly not for the opportunity to run for City Council again.

The sun has now pretty much set behind the hill to the west of Casa Verde and the band Toro y Moi is playing in the background. We have a pair of pet owls that haunt the hood and one of them is on our chimney while the other looks down from the telephone pole at the edge of the property. Betty the mixed black meth lab is bumping her nose into my side demanding attention and threatening to knock over my second glass of red.

And about this time Alex Boy Genius shows up with his mom, Mrs. Green 1.0, in the black Prius I get to pay for but never drove. 1.0 freaks a little about the steep hill, Wendy helps calm her nerves and we get her turned around and back down the hill and Alex Boy Genius is here for the weekend. And it seems, his friend Silent Bob the nice kid who doesn’t speak.

I can’t get involved in the drama. All I can think is, it’s Friday, the chicken is barbequing, the red is a good Cabernet from Paso Robles, Mrs. 1.0 is happily on her way, Wendy the 2.0 is dancing on the balcony, Toro Y Moi is hitting the beats in the background and the warm lush comfort of the evening is enveloping me. Life is good.

Speaking about Alex Boy Genius, its amazing what it is that makes us think of those dear to us. I have a former co-worker whose daughter was born just days apart from ABG and every time my former co-worker posts a picture of her daughter, I always compare the two. The daughter just got her license today it seems and a very cute photo was posted. My first reaction? ABG keeps trying to kill me during driving lessons. Yup, that was my first thought. I guess that’s the difference between raising sons and daughters. We’ve got three boys over here so we don’t really understand the challenges of raising drop dead gorgeous girls. But we do understand raising boys who want to wreck your cars.

Not really sure why I mentioned that, but that’s part of my week. Oh, by the way former co-worker, that offer from me and Wendy to drop by the house is on any time you want.

So with the first 500 or so meandering words laid down and the barbequed chicken beckoning and a filled third glass of red on stand by, I guess its time to get to the meat of this week’s column. That is, if there is anything here beyond a friendly Chatty Cathy automatic writing session.

And looking over my notes, it does appear that I intended to discuss certain articles that appeared in the Star this week.

[Dinner Break]

Getting to the point (finally), the issue of the week is the continuing train wreck that the City Attorney presents in relation to what started out as a minor matter, the memorandum of understanding regarding the Parkside Villa condominiums so as to avoid a needless lawsuit from a developer against the City, which compounded into coverups, lies, coverups of coverups and more lies, and now an intentional retaliatory and perhaps intentionally libelous act by the City Attorney against one of her subordinate attorneys in the Star this week.

A basic refresher time line is in order.

On November 19, 2012, in closed session, the City Council voted against the advice of legal counsel to threaten developer LA Avenue Group / New Urban West with litigation if it went ahead with its plans to lease out the luxury Parkside Villa condominiums instead of placing them up for sale.

On November 22, 2012, LA Avenue Group / New Urban West filed a government claim against the City for limiting its rights as a property owner regarding what it can do with its property. And considering that the City had no legal right to prevent the developer from renting out its property, if 45 days were to come and go from the date of filing the claim, then the claim would be deemed “denied by operation of law,” the developer would have been deemed to have exhausted its administrative remedies, and would be free to file suit against the City. And would have most likely won.

The 45 days from date of filing the claim against the City lapsed on January 7, 2013. Which means LA Avenue Group / New Urban West would be eligible to file suit against the City on January 8, 2013.

That is, unless the City could find a way to convince the developer to withdraw its claim. Which is exactly what the MOU signed by the Mayor and the City Attorney on December 20, 2012 stated. The City agreed to withdraw its threat of litigation against the developer and the developer agreed to withdraw its claim against the City. And on January 8, 2013, no lawsuit was filed against the City.

Great lawyering, you would think.

Except, there was a small detail that was overlooked. The Mayor and the City Attorney didn’t have City Council authority to sign the MOU. OK, no biggie. Lots of agreements are entered into subject to council approval. But what happened next was the City Attorney, Mayor and City Manager held a public hearing on January 28, 2013 on whether or not to enter into this MOU. And the City Attorney and Mayor didn’t bother to tell the public and the other four council members that they had already signed the MOU. And the City Attorney was now saying the MOU was “void ultra vires” or void from the inception. But the developer didn’t know that. And the e-mail trail didn’t reflect that. And the City Attorney was now accusing her Assistant City Attorney who negotiated the MOU that provided a way for the City to withdraw its threat to file suit against the developer and for the developer to withdraw its claim against the City, remember, that MOU? The City Attorney was now in January accusing her subordinate of sabotaging her office. And in return, that subordinate filed a personnel action against his supervisor the City Attorney.

So moving forward in time to this week’s Ventura County Star article, we find the City Attorney commenting on her subordinate, in print, as follows,

“Baxter said last week she learned of the mistake a few days before the Jan. 28 meeting and didn’t tell the council in part because she thought it might have required disciplining Assistant City Attorney David Caceres, a confidential personnel matter. She later concluded no discipline was needed, she said”.

Now, let us analyze the above statement, printed on April 10, 2013. Baxter acknowledges that personnel matters are confidential. Baxter acknowledges that disciplining her subordinate would be a confidential personnel matter. Baxter makes the statement to the press, disclosing the name of her subordinate that she considered disciplining, an acknowledged confidential personnel matter, subsequent to the subordinate filing a personnel complaint against Baxter.

Now, to me, just your run of the mill former government attorney with 34 years total government time and 10 years government attorney time, my first impression is that Baxter intentionally retaliated against her subordinate for bringing his personnel action by outing him in the press. Why she mentioned his name in the press is beyond me but it is inexcusable. The first adage of being a general counsel, and what we took to heart during my tenure at the Simi Valley City Attorney’s Office was “Do Not Create Liability Where It Does Not Already Exist!”

So what kind of liability did Baxter create for the City for her retaliatory act against her subordinate attorney? For that I consulted with a high level Human Resources executive to gauge her reaction. Upon first blush I think she blurted out something akin to what banned me from certain local forums. After she regained her composure she sent me the following e-mail:

“As an HR Director for a large employer in California with a nationwide presence and over 3,000 employees I can attest to the fact that we carefully navigate the landmine of potential liability when it comes to claims of retaliation and discrimination by our employees. We dutifully conduct ourselves appropriately and train our managers to treat everyone with respect. Having said that it’s concerning to witness the actions of the Simi Valley City Attorney Marge Baxter.

The mere fact that she would give a statement to a reporter and actually named an employee that is a direct report to her is mind-boggling. Not to mention the fact she alluded to the fact he may be disciplined for an action that seems to have stirred up enough chaos on the dais to warrant several articles and accusations back and forth from the council. Back in January Marge mentioned an employee that had made mistakes in yet another article. At that time she had the respect to not provide a name. It’s not hard to connect the dots now that she’s once again throwing employees under the bus that this is the same person she’s placing blame on. She’s setting him up for failure here to save herself. What kind of person does this? Why would she name her employee in the first place to a reporter? Isn’t she trained to keep matters confidential and maintain the utmost in professionalism? Lead by example?

The Star article goes on to quote this employee and state he has filed a complaint with HR. I’m sure he did and what I can say is his complaint has merit. His boss called him out in the local paper and dropped the blame squarely onto his shoulders. What’s concerning here is the fact that his name is very unique and if someone does a goggle search they will find an article with his name tied to potential disciplinary action. Well that may not help him in his future job search when a possible employer sees this.

So now the facts boil down to how will the employee handle this? From where I sit it’s clear that we have a very good case for retaliation that could cost the city up to seven figures. You can arrive at this by simply mapping out Marge’s actions and public statements. Someone with experience and education knows better. The fact that she’s the City Attorney puts her in an upper echelon that many people don’t find themselves. Her job is to protect the city and ensure that she minimizes liability. The fact that she has single-handedly created her own retaliation and defamation suit is incredulous. Marge has placed the city in a very precarious place. The Mayor himself is an attorney and will be the first to start to evaluate the City’s liability and cost associated with this snafu.”

So, that’s what the pro’s have to say about this. No longer a “tempest in a teapot,” is it?

I also ran the fact pattern by a prominent plaintiff employment attorney, and all he could do was lick his chops and beg me for the subordinate’s telephone number. No, I can’t go there, but if the employee does lawyer up, who could blame him?

So now comes the time to take action. Baxter was hired on a three-two vote with Huber, Judge and Williamson for, and Becerra and Sojka voting against. Now that its time to protect the City from further harm, how will the vote come down to protect the City from Baxter? It may come down to Huber and Judge on one side, Becerra and Sojka on the other, and our newest council member having to cast the deciding vote.

If the first measure of the City Attorney is to minimize liability to the City, and considering that Baxter has inexplicably violated that very measure for all to see, I trust that Council Member Mashburn will act first to protect the City’s interests.

Next week, my fantasy football picks for the Interim City Attorney reserve contingency team.

Night Simi Valley!

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