[Editor’s Note: Late Friday afternoon, City Atty. Carol Schwab issued a 1,463-word response to Les Greenberg, attorney and neighborhood activist, who had accused three members of the City Council of a conflict of interest in their temporary ruling on Sept. 8, lifting parking restrictions on his block.]
September 26, 2014
Les Greenberg Via Email: plgreen@att.net
Law Office of Les Greenberg
10732 Farragut Drive
Culver City, CA 90230-4105
Re: Allegations Related to Discussion of Permit Parking Restrictions on the
10700 Block of Farragut Drive
Dear Mr. Greenberg:
I am in receipt of your letters dated September 10, 11, 14, 18 and 21, 2014, and attachments, (collectively, “Letters”) in which you communicated numerous concerns and allegations against specific Council Members and the City Council, as a whole, arising from the City Council’s discussion at its September 8, 2014 meeting of Agenda
Item A-3:
(1) Discussion of Existing Permit Parking Restrictions on the 10700 Block of Farragut Drive; (2) Consideration of a Request from Grace Evangelical Lutheran Church (4427 Overland Avenue) to Change the Existing Residential Parking Restrictions; and (3) Direction to the City Manager as Deemed Appropriate.
The City appreciates your interest in ensuring the City Council acts appropriately in its consideration of this and related issues. Therefore, I have thoroughly reviewed, researched and investigated the numerous claims raised in the Letters, including alleged facts and circumstances, attached documents, citations to case law, codes, statutes and other authorities. As a result of your requests, I also contacted individual Council Members regarding the allegations. Based on the information I received, I have concluded that there is not any basis to support or sustain your allegations against individual Council Members, nor the City Council, as a whole, regarding the discussion and consideration of issues related to existing permit parking restrictions on the 10700 Block of Farragut Drive (the “Farragut Parking Restrictions”). Below, I will respond to the main allegations raised in the Letters. However, the fact that I do not address every point or detail you raise should not be interpreted to constitute tacit concurrence with any of your stated positions.
As a procedural matter, I will first address the allegation that you have made regarding my authority as City Attorney to investigate this matter. The remainder of my response will be structured to address your substantive concerns, which primarily center around two issues: 1) alleged conflicts-of-interest of individual City Council Members; and 2) City Council jurisdiction and proper procedures for considering changes to the Farragut Parking Restrictions.
I City Attorney Authority to Investigate
As a preliminary assertion, you claim that, as City Attorney, I have a conflict-of-interest in reviewing your allegations, which you base on the fact that I have been appointed to my position by the City Council. You further suggest that the “investigation” of this matter should be outsourced. I do not concur with your assertions.
Case law and the State Bar of California Rules of Professional Conduct are clear: the City, itself, not any individual public official or community member, is my client. As City Attorney, I have the authority and obligation to look into matters that could impact the City’s interest. Moreover, consistent with a City Attorney’s role and duties under State law, the City Charter and the Culver City Municipal Code, I provide objective advice to the City Council on legal issues that may affect the City on an almost daily basis. The issues you have raised in the Letters, fall within the areas that I address in the normal course and scope of my duties.
Therefore, it is legally appropriate for me to investigate this matter.
I. Conflicts-of-Interest:
You have transmitted information which you assert shows that four Council Members have conflicts-of-interest for several reasons, which I respond to as follows:
A) Political Support or Contributions:
You have stated that private individuals, who may be advocating the position of Grace Evangelical Lutheran Church (the “Church”), have been active political supporters of one or more Council Members. As stated in the Letters, your belief is that due to that relationship, specifically Vice-Mayor O’Leary and Council Members Weissman, Cooper and Clarke have a conflict-of-interest and should be recused from participating or trying to influence the City Council’s decision regarding this matter. As discussed below, your belief is not supported by statutes, case law, or the facts and circumstances in this particular case.
The Political Reform Act (“PRA”), found in Government Code Sections 81000, et seq., regulates conflicts-of-interest that may impact governmental decisions. The PRA only applies when a Council Member has a financial interest in a governmental decision. The concern you have expressed suggests that campaign support and contributions have created financial interests. The California Supreme Court and the PRA make it clear that a Council Member is not precluded from participating in or attempting to influence a decision that may effect or be supported by one or more of that Council Member’s campaign supporters and contributors.
Based on the above, there are no facts and circumstances present which show a financial interest in a governmental decision, giving rise to a conflict-of-interest, under the PRA.
B) Council Member’s Possible Business Relationship with Church Board Member
You have stated that Council Member Weissman has a conflict-of-interest, because he was designated by Ken Smith, a Church board member, as the agent for service of process for Mr. Smith’s business entity. I have inquired about the facts in this matter. Mr. Smith is not a current client of Council Member Weissman, nor does Council Member Weissman receive any financial compensation from Mr. Smith. As Council Member Weissman has no financial interest in the governmental decision, under the PRA, no conflict-of-interest would exist.
C) Potential Impact of Future Regulations on Council Member’s Business
In the Letters, you state that Vice Mayor O’Leary has a conflict-of-interest, because he could potentially financially benefit if the Procedures and Regulations for Residential Permit Parking Districts (the “Procedures”) are changed to allow businesses to challenge parking restrictions. You allege that Vice Mayor O’Leary’s business is similarly situated to the Church (i.e. located adjacent to a permit-parking only residential street). There are no circumstances related to the consideration of the Farragut Parking Restrictions that currently impact Vice Mayor O’Leary’s business or financial interest. Absent such facts and circumstances showing a financial interest, no analysis of a potential conflict-of-interest for Vice Mayor O’Leary is required, under the PRA.
II. Jurisdiction/Procedure:
In the Letters, you allege that the City Council has no jurisdiction or authority to consider changes to the Farragut Parking Restrictions and that its review of the matter is narrowly limited to the Procedures adopted on November 12, 2013. As discussed below, the City Council does have jurisdiction to consider such changes.
The focus of your contention makes an assumption that Farragut residents have vested rights in the City’s public right-of-way. This is simply incorrect. There are no vested or constitutional rights for use of the City’s public right-of-way. California Vehicle Code Section 22507 provides the City Council with the discretionary authority to establish “…preferential parking privileges to residents and merchants adjacent to the streets for their use…” (emphasis added). Thus, there is no legal mandate to create such preferential parking districts, nor does the Vehicle Code require that a preferential parking district be maintained in perpetuity without change, once it is established.
Further, the City Council has the legislative authority to modify or dissolve any or all of the parking districts it has established as it deems appropriate and is not limited by the strict language of the Procedures. As stated in Section 2 of the Procedures, “[t]he primary purpose of Preferential Parking Districts is to limit excessive intrusion of nonresidential parking into parking-restricted residential streets and neighborhoods, where such parking practices have negatively impacted the residential area.” (emphasis added). The City Council has received comments from the Church that there is not the same negative impact on the residential area due to changed circumstances. The City Council has the prerogative to evaluate the information it has received to ensure that the Farragut Parking Restrictions continue to meet the intent and purpose of the policies the City Council established.
This process is supported by Section 11 of the Procedures, which allows the City Engineer to initiate an evaluation of an existing district’s parking restrictions. Although this Section provides administrative authority to initiate such review, that does not restrict the City Council from exercising its legislative authority and directing staff to initiate a process under which the City Council may review and consider modifications to any preferential parking district, including the Farragut Parking Restrictions.
As stated above, the City appreciates your expressed interest in ensuring that its business is conducted appropriately in this and other matters. Based upon the review and analysis of your numerous concerns, as set forth above, I am hopeful this is sufficient information for you to also conclude that the City Council and its Members are in compliance with all applicable laws relating to this issue.
Sincerely,
Carol A. Schwab
City Attorney
cc: Mayor Sahli-Wells and Members of the City Council; John Nachbar, City Manager
