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investment performance, including each investment vehicle, the amount invested, the term, and the return on investment; building permit activity, by type of occupancy and permit, with trends over time)
Asking for items under the City’s purview to be brought to Council (i.e., agenda setting) for its consideration (e.g., an analysis of the future of fire protection services; the status of the Ground Water Recharge project, projected costs, and impacts on sewer rates) Asking for an analysis and recommendations on the City’s approaches to governance (e.g., the nature and scope of decision-making authority exercised by boards and commissions serving as advisory bodies to the Council; the transparency of City operations and data, including placing permit activity on the City’s website or placing that data on the website in machine-readable format, to facilitate independent analysis by the public; the nature and scope of communication with the general public) Commissioning formal inquiries and audits of selected City operations, such audits to be conducted by recognized, outside experts (e.g., the annual fiscal audit) The above list provides only major examples of the types of inquiry available to the Council; the Council has full authority to undertake these and other approaches to inquiry (with some limits on process due to the Brown Act) on any subject within the City’s purview.
Periodically, it is appropriate for the Council to review its options and determine if there are changes to the nature and scope of inquiry that it wishes to undertake. Without exercising this authority, there are program activities that aren’t likely to come to the Council’s attention during a two-year Councilmanic term, even when of a high priority. As such, inquiry serves as an key set of tools to ensure the Council can fully perform its oversight role. Inquiry is best undertaken on both a planned and ad hoc basis, to verify that the trust placed in administrative operations continues to be deserved and that the public knows that its government is an appropriate steward of the community resources and trust.
It is also worth noting that city organization have a certain capacity at any time to respond to inquiries. The more formal options involve considerable effort, have not consistently been undertaken in PG throughout at least the recent past, and require performance data and analytic skills that are currently in short supply within the organization. This is clearly an area where general improvement is needed, and already recognized. It is a goal throughout the City’s programs this year to significantly improve the collection and management of performance metrics. Proficiency in all areas will require significant emphasis and time.
OPTIONS
1. Do nothing.
2. Provide alternative direction to staff.
FISCAL IMPACT
Unknown; depends on the nature and scope of inquiry undertaken.
ATTACHMENTS
1. John Nalbandian Article
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RESPECTFULLY SUBMITTED,
_______________________________
Thomas Frutchey
City Manager
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Public Management August 2009 24
T
he legitimacy of an individual councilmember’s power comes directly from the electorate, but respect and influence cannot be presumed; they have to be earned through action. The manager’s position, however, comes from professional qualifications to manage and provide policy guidance. In contrast with members of the council, the local government manager and professional staff benefit from a long-term familiarity with issues, specialization, and technical expertise and also from an organizational structure familiar to all.
As we know, linking politics and the work of a governing body with the management of government involves an ongoing set of tasks and challenges. The idea of council-manager government is that political and administrative realms can be in partnership and not dependent on the system of checks and balances that characterizes our state and federal governments, where separation of legislative and executive powers is valued.
The relationship between the manager and the elected officials sets a tone for the entire local government. Although some elected officials shy away from acknowledging a team or partner relationship between and among members of council and between the council and the staff, it is critical that the professional manager prepares the council for its work.
In part, this takes place as the manager helps the council build its capacity to work as a body, earning respect for one another and in an effective partnership with staff. In this article, we set out some of the ways the manager can facilitate the building of council capacity.
Preparing Councils for
Their Work
by Julia Novak and John Nalbandian
How managers can help build
council capacity is going to
be the topic of the authors’
presentation at the Eldon
Fields Colloquium, which will
be held at ICMA’s 2009 Annual Conference in Montréal,
Québec, Canada, Sept. 13–16.
2009 ICMA Conference
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ICMA.org/pm 25 Public Management August 2009
Central Tasks of a
Governing Body
In a formal sense, the role of a governing body is set out in a typical statement such as “the council is charged with providing overall leadership for
the local government by enacting laws
and allocating resources for programs,
services, and activities.” Individuals
are elected by voters who, in turn,
expect the council to listen to their
concerns and address their individual
issues.
As accurate as these phrases are,
they do not fully convey the work of
the council, and they are insufficient
to help new councilors understand
what is expected of them. In fact,
short phrases only rarely capture
the council’s work. Local norms
and tradition are as important as
any charter when it comes to understanding the council’s work.
In addition, the composition of
a council can influence how the
council and the individual members see their roles.
To be effective, councilmembers
must talk about their work, what
they think is expected of them, and
what they expect of each other.
Obstacles to Effective
Governance
Although councils differ, three obstacles to council effectiveness are fundamental. First, councils that
are willing to deal with big issues will
have to confront conflicting political
values. These values include representation, efficiency, social equity, and individual rights. Choices among
values are not choices between right
and wrong, and councils searching for
“correct” answers to policy issues are
bound to become frustrated.
Second, councilors must confront
the difficult values work they are responsible for in the absence of hierarchy—the mayor is not the boss. How many jobs have you had where no one
was in charge?
The third obstacle is the difference
in perspective between council and
staff—differences that are often difficult to understand because while council and staff use the same words,
they speak a different language.
The tools we identify below are
intended to enable a willing council to
deal with difficult issues by building
council capacity. An important piece
of that capacity is an effective partnership with staff.
Tools to Build Good
Governance
Adopting policy in open session where
political values are constantly colliding is not for the faint at heart. What can the manager do to prepare the
council, largely made up of amateur
politicians (no disrespect intended),
for its work?
First, we want to emphasize that
staff can help prepare the council for
its work, but the council is responsible for that work, and the council bears a good deal of responsibility for
building its own capacity. The goal is
a partnership, and staff members who
take too much responsibility for the
council’s work may actually create a
dependency rather than an effective
partnership.
In our collective 50 years of experience working with and for elected and appointed local government
professionals, we have seen several
practices that are effective tools in
managers’ tool kits to help overcome
the barriers to council and staff working effectively.
Orientation
Ideally, the orientation process begins
before the election, when individuals
declare their candidacy for council.
The manager’s opportunity to prepare
them begins then: open the doors of
city hall to the candidates and provide
them with nonconfidential correspondence and copies of agenda materials.
After the election, meet individually
with those elected to find out their
concerns; offer to allow them to explore areas of community business of particular interest.
As soon as practical after the election, the manager should arrange for a full orientation for new members
of the governing body—invite the
continuing members to attend
as well—and provide them with
“Government 101.” Brief them on
current issues, the status of longrange plans and capital projects, and the budget process. In its orientation, Shoreline, Washington, covers both the basics of members’
service on the council as well as
specific government projects (see
the box on page 26).
Provide tours of operational
facilities. Let them see the garage
where the city cares for its fleet
and even the shop where it stores
and maintains its lawnmowers. A
tour of water and wastewater treatment facilities is fascinating and allows the behind-the-scene workers who do the city’s business every day to shine.
But also remember that if staff prepare the agenda for the orientation, the agenda likely will be based on
what staff members think the council
needs to know in order to be effective.
Every new councilmember must face
two crucial questions: How do I get
my issues on the political agenda of
other councilmembers and staff? How
do I influence other councilmembers
effectively? Rarely do staff-developed
orientations include discussion of
these kinds of questions.
That is why it is essential to put
new members in contact with former
councilmembers who are regarded
as exemplars and, if possible, make
It is essential to put
new members in
contact with former
councilmembers
who are regarded
as exemplars and,
if possible, make
them part of the
orientation.
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Public Management August 2009 26
them part of the orientation. Importantly, these exemplars should represent a range of styles so new
members can become acquainted
with and relate to at least one former councilmember.
Retreats and Goal
Setting
During a council retreat, probably the
most important activity of the governing body is spending time articulating what it wants to accomplish, as a body, during its time in office. The
most effective councils hold annual
sessions where goals are revisited, updated, and validated.
These sessions, like the orientation, should be seen as annual events so there is no debate on whether
they should take place. Goal setting
occurs most effectively in a retreat
environment where the entire day
(or two) is set aside for the purpose
of reaching consensus on council
priorities. Having department heads
attend these discussions provides
staff with important context for understanding the “why” behind the priorities.
As part of setting goals, the council
and staff should come to an agreement on how the council wants to be informed about progress on goals
and objectives. During the retreat the
council can also focus on improving working relationships within the council by discussing norms and behavior and exploring personal styles in a guided discussion with a trainer
and facilitator.
An exploration of styles should not
be minimized. It is important because
all councilmembers are equals. The
unintended consequence of equality is that no one has the power and authority to resolve conflict or set or
legitimize plans and direction.
In the absence of the hierarchical
structure we are all accustomed to day
in and day out, a gathering of equals
who are dealing with problems for
which there are no correct answers
highlights differences in ways individual members exercise influence, how much information they need, the
extent to which they see themselves
as a group, how they deal with conflict, and even the kinds of concerns individually they think are worth
considering.
Regular One-to-One
Meetings
Although the formal relationship is
between the manager and the councilmembers as a body, nurturing individual relationships is an important component of creating a productive
working relationship between council
New Councilmember Orientation
Shoreline, Washington
Part I: Nuts & Bolts
1. Council meetings
• Open Public Meetings Act
• E-meetings/public records
2. Council rules and procedures
• Various types of council meetings: Business meeting, study session, workshop dinner meeting, and executive sessions • Agenda process
• First council meeting: Swearing-in ceremony and election of mayor
3. Council-staff communications
4. Council office
• Council correspondence process: E-mail, letters
• Business expense policy
• Miscellaneous: Council voice mail,Web site, e-mail, payroll, health benefits, conferences, council photo
Part II: Council Goals, Boards & Commissions, Projects, Issues
5. Council goals
• Council goal-setting process: Retreat
• 2008–09 council goals/council work plan
• Council Work Plan quarterly reports
6. Council boards and commissions
• Council of Neighborhoods
• Library Board
• Parks Board
• Economic Development Advisory Committee
• Planning Commission
7. Projects and emerging issues
• Long-range financial planning
• City Hall project
• Point Wells
• Aurora corridor project
• Parks bond projects
8. Wrap-up
• Additional information/briefings/tours?
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ICMA.org/pm 27 Public Management August 2009
and staff. At a minimum, the manager
should have one-to-one time with
members of council at least once
each quarter. Many managers visit
much more frequently with individual
councilmembers.
This is especially important when
the council itself is divided. If the
manager meets only with members of
the majority, the manager plays into
the perception that the staff is supporting the majority at the expense of the minority. Although the manager
is bound to implement the policy adopted by the majority, the relationship the manager develops must be with
the body as a whole as well as with
each individual who makes up the
body.
Local government managers clearly
are spending more time than ever with
councilmembers. What is not clear is
the changing role of department heads
in light of the new allocation of the
manager’s time. It used to be a bonus
to find department heads who could
understand the council’s politics and
the work of the manager’s office.
Today, that need has become imperative because the manager does not have sufficient time to spend with
department heads.
Appropriate Access to
Department Heads
Having the council interact directly
with staff can be a touchy issue for
some managers, but it is a direct
consequence of managers having to
spend more time on the politics of the
jurisdiction. The primary council-staff
relationship should be with the manager, but allowing councilmembers access to department heads can actually build trust between the council and the manager.
Open dialogue between the manager and the department heads about how that interaction happens and
what is shared back with the manager ensures that the manager is properly informed and the council is
well served. Shoreline, Washington,
has developed written guidelines for
council-staff communications that
strike an appropriate balance (see the
box on this page).
Documented Business
Practices
The day-to-day business of government involves responding to correspondence, e-mails, and constituent requests. Establishing a practice of
how to handle these items ensures
fair treatment among all members of
the governing body. Some jurisdictions call these rules of procedure, and they are adopted by resolution
and govern how the council conducts itself.
Topics include everything from
receiving and responding (or not) to
public comment at public meetings
and when it is appropriate to use
official letterhead, to how items get
placed on agendas and how many
logo shirts each councilmember receives—and everything in between.
Council-Staff Communications Guidelines
Shoreline, Washington
Governance of a city relies on the cooperative efforts of elected officials, who set policy and priorities, and city staff, who analyze problems and issues, make recommendations, and implement and administer the council’s policies. Here are general guidelines to help facilitate effective communications between the city council and city staff.
• Channel communications through the appropriate city staff. • All council members should have the same information with which to make decisions.
• Depend upon the staff to respond to citizen concerns and complaints as fully and as expeditiously as practical.
• The city council sets the direction and policy—city staff are responsible for administrative functions and city operations.
• In order to provide the council with timely information, please strive to submit questions on council agenda items ahead of the meeting. • Respect the will of the “full” city council.
• Depend upon the staff to make independent and objective recommendations. • The city manager and staff are supporters and advocates for adopted council policy.
• Refrain from publicly criticizing an individual employee. Criticism is differentiated from questioning facts or the opinion of staff. • Seeking political support from staff is not appropriate.
The Council Must
Manage Itself
The manager’s job is to create opportunities for the council to be prepared so the members can operate in an environment of mutual understanding.
Each of the steps outlined in this article can help create the environment for effective governance, but there
will be exceptions.
Individuals sometimes ignore rules,
and toxic personalities sometimes create challenges for professionals. But do not forget—difficult personalities
on the council create a challenging
and uncomfortable environment for
the council itself. This is not just a
staff problem, and often there is no
silver bullet.
In the end, the council must manage its own behavior and seek compliAgenda No. 13A Attachment 1
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Public Management August 2009 28
ance from its own members. Staff can
do only a limited amount to support
a dysfunctional council, and inviting
councilmembers to vent to the manager and staff about other councilors at worst can create an expectation
that it is the manager’s job to somehow fix the council. That simply cannot happen.
Benefits of Leadership
In their training video, Leadership: An
Art of Possibility, Ben and Rosamond
Zander talk about the art of leadership
as creating a possibility to live into
rather than a standard to live up to.
Preparing the council for its work lays
the groundwork for establishing an
environment where the council-staff
partnership can flourish and good
governance can be supported by good
management. PM
Julia Novak, ICMA-CM, is regional vice
president, Management Partners, Inc., Cincinnati, Ohio, and is a former city manager ([email protected]). John
Nalbandian is a faculty member in the Public Administration Department at the University of Kansas, Lawrence, Kansas. He is a former councilmember and mayor in Lawrence, Kansas ([email protected]).
In the May 2009 issue of PM, readers were asked to submit their “twominute elevator speech” that explains to someone they’ve just met or that helps a citizen quickly understand what they do for a living. Here are the replies that were received:
My two-minute elevator speech does not last two minutes. I tell the public that any success I have had comes from having the ability do what I am told. In my role as a city manager, the city council sets the policy direction, and it is my job to use the resources of the city, in partnership with the city employees, other governmental agencies, not-for-profits, businesses, and citizens to carry out that policy with the highest degree of success possible.
—Michael Van Milligen
City Manager
Dubuque, Iowa
[email protected]
Being part of a team of ethical professionals dedicated to facilitating our community’s success—that is my role in local government as a deputy city manager.
My job is to assist the city manager in her efforts to implement tangible policies and programs that will shape the progress our city council seeks to achieve.
Day to day, I apply best management practices to ensure that public resources are being used effectively and efficiently for the community’s benefit. I do that by leading a department focused on neighborhood services—the municipal functions that directly affect residents, like solid waste, transit, code enforcement, and animal services.
As a professional manager, I maintain open lines of communication with division supervisors and field staff about the city council’s goals and objectives and the city manager’s direction.As a neighborhood services team, our common mission is to ensure that the work we do every day complements and is consistent with the direction that our elected officials wish to lead the community.
The work is fun, exhilarating, and very challenging.The best reward comes when we hear from a resident that a job is “well done!” and we see in our performance measurements that progress is being made in providing the highest quality services at the best value to taxpayers. Local government management is a great field, and I hope to pursue my career in it for years to come.
—Cody Tubbs
Deputy City Manager
Elk Grove, California
[email protected]
PM What’s Your Elevator Speech?
Upcoming
PM
Contents:
n Public Safety
Communication
Systems
n No Pre-Existing
Conditions
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A Holistic Approach to Local
Government Management Consulting
ICMA ConsultIng servICes
If you need help addressing the most critical issues in your jurisdiction, from community problem-solving, to police and fire mergers to smart growth codes, consider ICMA. If you want a team of local government management experts who
can provide your community with a solution that will
improve the lives of your residents, hire ICMA.
For nearly 100 years, ICMA has provided technical consulting support to local governments nationwide. We’ve helped large and small communities solve some of their most critical problems by offering support in the following areas:
Management Services
Growth and Development Services
Public Safety Services
Call 202-289-ICMA
Email us at [email protected]
Or visit us online at icma.org/consultingservices
08-102
Agenda No. 13A Attachment 1
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State of California
GOVERNMENT CODE
Section 7921.305
7921.305. (a) Notwithstanding the definition of “member of the public” in Section 7920.515, an elected member or officer of any state or local agency is entitled to access to public records of that agency on the same basis as any other person. Nothing in this section shall limit the ability of elected members or officers to access public records permitted by law in the administration of their duties. (b) This section does not constitute a change in, but is declaratory of, existing law. (Added by Stats. 2021, Ch. 614, Sec. 2. (AB 473) Effective January 1, 2022. Operative January 1, 2023, pursuant to Sec. 7931.000.)
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State of California
GOVERNMENT CODE
Section 7921.310
7921.310. Notwithstanding Section 7921.305 or any other provision of law, when the members of a legislative body of a local agency are authorized to access a writing of the body or of the agency as permitted by law in the administration of their duties, the local agency, as defined in Section 54951, shall not discriminate between or among any of those members as to which writing or portion thereof is made available or when it is made available.
(Added by Stats. 2021, Ch. 614, Sec. 2. (AB 473) Effective January 1, 2022. Operative January 1, 2023, pursuant to Sec. 7931.000.)
STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
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Levy v. City of Santa Monica, 114 Cal.App.4th 1252 (2004) 8 Cal.Rptr.3d 507, 04 Cal. Daily Op. Serv. 452, 2004 Daily Journal D.A.R. 588 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment
Declined to Extend by Cox v. Mariposa County, E.D.Cal., May 1, 2020 114 Cal.App.4th 1252
Court of Appeal, Second District, Division 6,
California.
David LEVY et al., Plaintiffs and Respondents,
v.
CITY OF SANTA MONICA et al., Defendants
and Appellants;
Tunde Garai, Real Party in Interest.
No. B157587.
|
Jan. 20, 2004.
|
Review Denied March 30, 2004.
Synopsis
Background: Homeowners brought action against city
and city council member seeking permanent injunction,
declaratory judgment, and other relief, after city issued notice of violation regarding backyard playhouse that
homeowners had built for their child. City and council
member brought anti-SLAPP (strategic lawsuit against
public participation) motion to strike lawsuit. The
Superior Court, Los Angeles County, Cesar C. Sarmiento, J., denied motion to strike and city and council member appealed.
Holdings: The Court of Appeal, Gilbert, P.J., held that:
[1] anti-SLAPP statute applied to homeowners’ action;
[2] homeowners failed to meet burden of demonstrating
probable success on merits with regard to cause of action seeking declaratory judgment that playhouse conformed
to applicable zoning ordinance;
[3] homeowners failed to meet burden of demonstrating
probable success on merits with regard to federal civil rights cause of action; and
[4] homeowners failed to meet burden of demonstrating
probable success on merits with regard to cause of action that sought permanent injunction and declaratory
judgment that city council members were precluded by
city charter from engaging in acts designed to influence city administrative staff.
Reversed.
West Headnotes (18)
[1] Constitutional Law Right to Petition for
Redress of Grievances
Constitutional Law Zoning and Land Use
Pleading Frivolous pleading
Torts Resort to or conduct of legal remedies
Anti-SLAPP (strategic lawsuit against public
participation) statute applied to action brought
by homeowners against city and a city council
member, after city issued notice of violation
regarding backyard playhouse that homeowners
had built for their child, inasmuch as the action
arose from constitutionally-protected speech or
petitioning activity of homeowners’ neighbor
and city council member; action alleged that
neighbor complained to city council member
about playhouse on homeowners’ property that
had been approved by city building officials,
and neighbor’s act of contacting her
representative, and city council member’s act of
contacting city planning staff, were petitions for
grievances against the government protected by
the First Amendment. U.S.C.A. Const.Amend.
1; West’s Ann.Cal.C.C.P. § 425.16.
See 5 Witkin, Cal. Procedure (4th ed. 1997)
Pleading, § 962 et seq.; Cal. Jur. 3d, Pleading,
§ 295.
14 Cases that cite this headnote
[2] Pleading Frivolous pleading
Torts Resort to or conduct of legal remedies
A “SLAPP suit” (strategic lawsuit against public
participation) is a lawsuit that chills a party’s
constitutional right of petition or free speech.
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Levy v. City of Santa Monica, 114 Cal.App.4th 1252 (2004) 8 Cal.Rptr.3d 507, 04 Cal. Daily Op. Serv. 452, 2004 Daily Journal D.A.R. 588 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 West’s Ann.Cal.C.C.P. § 425.16.
[3] Pleading Frivolous pleading
Courts must broadly construe provisions of the
anti-SLAPP (strategic lawsuit against public
participation) statute. West’s
Ann.Cal.C.C.P. § 425.16.
2 Cases that cite this headnote
[4] Pleading Frivolous pleading
To determine whether the plaintiff has
demonstrated a probability of prevailing on a
claim, on motion to strike under anti-SLAPP
(strategic lawsuit against public participation)
statute, the plaintiff must show that the
complaint is both legally sufficient and
supported by facts to sustain a favorable
judgment if the evidence submitted by the
plaintiff is credited. West’s Ann.Cal.C.C.P.
§ 425.16.
2 Cases that cite this headnote
[5] Pleading Application and proceedings
thereon
The trial court may not weigh the evidence in
deciding whether the plaintiff meets the burden
of demonstrating a probability of prevailing on a
claim, on motion to strike under anti-SLAPP
(strategic lawsuit against public participation)
statute. West’s Ann.Cal.C.C.P. § 425.16.
1 Case that cites this headnote
[6] Appeal and Error Anti-SLAPP laws
The appellate court reviews the record de novo
on appeal from motions to strike under the
anti-SLAPP (strategic lawsuit against public
participation) statute. West’s
Ann.Cal.C.C.P. § 425.16.
[7] Declaratory Judgment Zoning ordinances
Declaratory Judgment Grounds of motion
In response to a motion to strike their lawsuit
under the anti-SLAPP (strategic lawsuit against
public participation) statute, homeowners failed
to meet their burden of demonstrating probable
success on the merits with regard to their cause
of action against city and city council member
seeking a declaratory judgment that playhouse
that homeowners built for their child conformed
to applicable zoning ordinance; issue became
moot after city rescinded notices of violation for
playhouse, and therefore there was no actual,
present controversy requiring resolution by the
court, which was a necessary element of proving
cause of action for declaratory relief. West’s
Ann.Cal.C.C.P. § 425.16.
4 Cases that cite this headnote
[8] Declaratory Judgment Necessity
The fundamental basis of declaratory relief is
the existence of an actual, present controversy
over a proper subject.
1 Case that cites this headnote
[9] Declaratory Judgment Zoning ordinances
A plaintiff may seek declaratory relief to resolve
a dispute about the impact of a zoning
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[10] Pleading Application and proceedings
thereon
In response to a motion to strike their lawsuit
under the anti-SLAPP (strategic lawsuit against
public participation) statute, homeowners failed
to meet their burden of demonstrating probable
success on the merits with regard to their federal
civil rights cause of action against city and city
council member after homeowners were issued a
notice of violation with regard to a backyard
playhouse they had built for their child;
homeowners failed to show that they suffered
damages inasmuch as city had rescinded its
notice of violation, and homeowners failed to
show that city threatened to move playhouse in
the future, or that city had an official policy that
deprived homeowners of due process notice.
42 U.S.C.A. § 1983; West’s
Ann.Cal.C.C.P. § 425.16.
2 Cases that cite this headnote
[11] Civil Rights Complaint in general
A plaintiff may state a claim for violation of
federal civil rights by alleging facts showing a
deprivation of a right protected by federal law.
42 U.S.C.A. § 1983.
[12] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Local governments may be sued under the
statute providing for a federal civil rights cause
of action where their official policies or
practices violate procedural due process rights.
42 U.S.C.A. § 1983.
1 Case that cites this headnote
[13] Civil Rights Acts of officers and employees
in general; vicarious liability and respondeat
superior in general
Local governments have no liability under the
statute providing for a federal civil rights cause
of action simply because their employees may
have violated a plaintiff’s constitutional rights;
the doctrine of respondeat superior does not
apply. 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[14] Declaratory Judgment Grounds of motion
In response to motion to strike under
anti-SLAPP (strategic lawsuit against public
participation) statute, homeowners failed to
meet their burden of demonstrating probable
success on merits on their cause of action
against city and city council member that sought
permanent injunction and declaratory judgment
that city council members were precluded by
city charter from engaging in acts designed to
influence city administrative staff; although
charter prohibited orders from city council
members to subordinates of city manager,
homeowners failed to show that city council
member gave any orders to city’s director of
planning and community development regarding
legality of homeowners’ backyard playhouse
that they built, as opposed to simply having
made an inquiry that was permissible under
charter, and homeowners’ complaint sought to
enjoin advocacy and other communication that
would have constituted an overly broad restraint
on speech. U.S.C.A. Const.Amend. 1;
West’s Ann.Cal.C.C.P. § 425.16.
6 Cases that cite this headnote
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Levy v. City of Santa Monica, 114 Cal.App.4th 1252 (2004) 8 Cal.Rptr.3d 507, 04 Cal. Daily Op. Serv. 452, 2004 Daily Journal D.A.R. 588 © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4 [15] Constitutional Law Public officials in
general
Under the First Amendment, legislators are
given the widest latitude to express their views,
and there are no stricter free speech standards on
them than on the general public. U.S.C.A.
Const.Amend. 1.
3 Cases that cite this headnote
[16] Constitutional Law Narrow tailoring
Laws that restrict freedom of speech must be
narrowly construed. U.S.C.A. Const.Amend. 1.
[17] Constitutional Law Public officials in
general
City officials have First Amendment protection
when they respond to inquiries from the public
about the city’s actions on construction projects.
U.S.C.A. Const.Amend. 1.
[18] Declaratory Judgment Grounds of motion
In response to motion to strike under
anti-SLAPP (strategic lawsuit against public
participation) statute, homeowners failed to
meet their evidentiary burden with regard to
their cause of action for injunctive and
declaratory relief, so as to demonstrate
probability of prevailing on merits in seeking
permanent injunction and declaratory judgment
that city council members were precluded by
city charter from engaging in acts designed to
influence city administrative staff; although
complaint alleged an ongoing “pattern of
intervention” by council members in city staff’s
performance, homeowners made these general
allegations on information and belief and did not
produce admissible evidence to support them,
and conclusory statement of former city council
member that problem that homeowners
experienced was not an isolated incident was
insufficient, inasmuch as former council
member failed to state facts, name the council
members, or show his personal knowledge.
West’s Ann.Cal.C.C.P. § 425.16.
5 Cases that cite this headnote
Attorneys and Law Firms
**510 *1254 Marsha Jones Moutrie, City Attorney,
Joseph Lawrence, Assistant City Attorney, Cara E. Silver, Deputy City Attorney for Defendants and Appellants.
Bannan, Green, Frank & Terzian and Richard R. Terzian,
Los Angeles, for the Cities of Burbank, Cathedral City, Fresno, Hermosa Beach, Newport Beach, Riverside,
*1255 Sonoma, Torrance and West Hollywood as Amici
Curiae on behalf of Defendants and Appellants.
Harding, Larmore, Kutcher & Kozal, Christopher M.
Harding, Kenneth L. Kutcher, Santa Monica; Isaacs,
Clouse & Crose, James B. Isaacs, Jr., Santa Monica, and John A. Crose, Jr., for Plaintiffs and Respondents.
No appearance for Real Party in Interest.
Opinion
GILBERT, P.J.
Santa Monica City Charter section 6.10 states, “Except
for the purpose of inquiry, the City Council and its
members shall deal with the administrative service under the City Manager solely through the City Manager and
neither the City Council nor any member shall give orders to any subordinates of the City Manager, either publicly or privately.”
Here we conclude, among other things, that a city council member did not violate section 6.10 by speaking with city planning department employees on behalf of a constituent to inquire about a structure built on a neighbor’s property.
An injunction to prevent such communication violates the PGCC 12/6/2023
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everyone, even politicians. (See Beilenson v. Superior
Court (1996) 44 Cal.App.4th 944, 52 Cal.Rptr.2d 357.)
The City of Santa Monica (City) and council member
Ken Genser (City) appeal an order denying their
“SLAPP” (Strategic Lawsuit Against Public Participation) motion to strike the lawsuit filed against them by David and Beth Levy (the Levys). ( Code Civ. Proc., §
425.16.) We reverse because City’s activity is protected under SLAPP and the Levys did not demonstrate a
probability of prevailing on any of their causes of action.
FACTS
The Levys spent $11,000 to build a large elevated
backyard playhouse for their four-year-old son. City
building inspector Mike Gruett advised the Levys that
their neighbor Tunde Garai had complained about the
playhouse. Gruett told them they had to remodel it to
meet city building standards and “relocate [ ] [it] so that it was at least five feet from the rear lot line.” The Levys spent $2,000 to modify the structure to comply with the City’s specifications. The completed structure was 13 feet high. It was located near a tree and supported by wooden posts which extended approximately seven feet *1256
from the ground. Robert Flowers, a city inspector,
checked it and told the Levys that it “was in full
compliance with ... City regulations.”
**511 Garai complained to the City’s building and safety department about the playhouse. She also complained to
Genser who was both her city council representative and the mayor.
On March 15, 2000, Genser sent an e-mail on behalf of
Garai to Suzanne Frick, the City’s director of planning and community development, that said, “[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.”
On April 2, 2000, Genser sent another e-mail to Frick to find out “the status of the complaint [he] forwarded” to her. He said, “I just did a ‘quick’ review of the code. I can’t say that I am necessarily accurate ... but: Mike’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.)”
Frick “did not consider these e-mails to be orders.” She treated them as “citizen complaints” and referred them to the zoning administrator. Genser simultaneously e-mailed copies to Susan McCarthy, the city manager, who did not consider the e-mails to be orders to City staff.
On August 4, 2000, Gruett sent the Levys a “Notice of
Violation” which “directed [them] to remove” or modify
the playhouse because it was an “unapproved structure[.]” The notice said the playhouse was a two-story structure that had to be “15 feet from the property line[.]” This notice did not mention appeal rights.
Prior to filing their lawsuit, the Levys’ attorney,
Christopher Harding, had a discussion with Marsha
Moutrie, the city attorney, who told him “that City staff did not intend to take any enforcement action of any kind against the Levys prior to discussing their claim with the City Council....” She said, “I would recommend to the
City Council that the City forego enforcement based on
the equities of the case, and that I anticipated the City Council would follow my recommendation.” She said, “it
would not be necessary to file a lawsuit, that the City would carefully review the matter, and that the dispute could be informally resolved.”
The Levys did not wait for the city council meeting and filed a complaint for injunctive, declaratory relief and damages against the City and Genser. They included
Garai as a “Real Party in Interest.” Later they filed an *1257 amended complaint alleging that the City
“confirmed in writing that the Levys may keep their son’s playhouse but asserted that it constitutes a legal
non-conforming structure[.]” (Italics added.) Their first cause of action sought a declaratory judgment that the
playhouse was a “conforming structure.”
The second cause of action sought a permanent injunction and a declaratory judgment that the city council members “are precluded by Section 6.10 [of the City Charter] from engaging in acts designed to influence City administrative staff through direct communication with City staff (other than the City Manager), with respect to zoning
enforcement matters such as the Levy playhouse matter.” (Italics added.)
The third cause of action sought damages under the
federal civil rights statute ( 42 U.S.C. § 1983) for the violation of the Levys’ “due process right to a hearing ... before being required to modify or remove their son’s
playhouse.”
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statute and contended the first and third causes of action were moot because the City rescinded the notice of
violation.
**512 The Levys opposed the motion with several
declarations. A declaration by attorney Christopher
Harding stated the City “continues to maintain ... that the Levy playhouse is a non-conforming structure[.]”
Another declaration by Gruett said the notice of violation should have advised the Levys about their appeal rights.
But his supervisor Timothy McCormick, the City’s chief
building officer, told him the notices did not contain such advisements because “the City did not want to encourage appeals by giving people notice of their rights.” Gruett said that the playhouse “conformed to the Zoning
Ordinance [.]” He and McCormick determined it was “a
lawful one-story ancillary structure.” But they were told by the chief City planners to “treat [it] as a two-story structure[.]”
Robert Sullivan, a real estate broker, said the City’s
classification of the playhouse as a “non-conforming”
structure has an “adverse effect on the marketability of [the Levys’] home.” Former city council member Paul
Rosenstein declared, “I am concerned ... that the Levy
playhouse matter is not an isolated incident, but rather an example of what has become ‘business as usual’ for one
or more members of the Santa Monica City Council.”
The Court denied the motion. It ruled SLAPP was not
applicable, but even if it were, the Levys met their burden to demonstrate a probability of success on all their causes of action.
*1258 DISCUSSION
I. The Applicability of SLAPP
[1] The City contends that the Levys’ action arose from Genser’s and Garai’s “constitutionally-protected speech or petitioning activity.” It argues the trial court erred by ruling that SLAPP did not apply. We agree.
[2] [3] A SLAPP suit is a lawsuit that chills “a party’s constitutional right of petition or free speech.” (State Farm General Insurance Company v. Majorino (2002) 99
Cal.App.4th 974, 975, 121 Cal.Rptr.2d 719.) The SLAPP
statute permits the defendant to file a motion to strike a cause of action that interferes with those rights. ( Code Civ. Proc., § 425.16.) To prevail, the defendant must
show “that the plaintiff’s claims arise from an act of the defendant in furtherance of the defendant’s right of
petition or free speech.” (State Farm General
Insurance Company, at p. 977, 121 Cal.Rptr.2d 719.)
Such acts include any written or oral statement made
before a legislative, executive or judicial body, or “any other official proceeding authorized by law.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124
Cal.Rptr.2d 530, 52 P.3d 703; Code Civ. Proc., §
425.16, subd. (e).) Courts must construe these provisions broadly. (Navellier, at p. 92, 124 Cal.Rptr.2d 530, 52
P.3d 703.)
[4] [5] [6] If an action falls within SLAPP, the court “must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v.
Sletten, supra, 29 Cal.4th at p. 88, 124 Cal.Rptr.2d 530, 52 P.3d 703.) To do this, he or she must show “ ‘that the complaint is both legally sufficient and supported by ... facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.’ ” (Id. at pp.
88–89, 124 Cal.Rptr.2d 530, 52 P.3d 703.) The trial court may not weigh the evidence in deciding whether the
plaintiff meets the burden, and we review the record de novo. (Matson v. Dvorak (1995) 40 Cal.App.4th 539,
548, 46 Cal.Rptr.2d 880; Lafayette Morehouse Inc. v.
Chronicle Publishing Co. (1995) 37 Cal.App.4th 855,
867, 44 Cal.Rptr.2d 46.)
Here the City met its burden to show that the Levys’
action arose from Genser’s **513 and Garai’s
constitutionally protected speech. The complaint alleges that Garai complained to Genser about the playhouse that had been approved by City building officials. Genser
contacted the City’s planning staff on her behalf because of Garai’s disagreement with the City’s action. The Levys incorporated these allegations into each cause of action and sued Garai and Genser.
[7] Garai’s act of contacting her representative and
Genser’s act of contacting planning staff are petitions for grievances against the government protected by the First Amendment. *1259 (Bradbury v. Superior Court
(1996) 49 Cal.App.4th 1108, 1116, 57 Cal.Rptr.2d 207;
American Civil Liberties Union of Southern California
v. Board of Education (1961) 55 Cal.2d 167, 178, 10
Cal.Rptr. 647, 359 P.2d 45; Nelson v. City of Selma (9th PGCC 12/6/2023
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burden of demonstrating probable success on their causes of action. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88, 124 Cal.Rptr.2d 530, 52 P.3d 703.)
[8] [9] The first cause of action seeks a declaratory
judgment that the playhouse “conforms with the Zoning
Ordinance[.]” “ ‘The fundamental basis of declaratory
relief is the existence of an actual, present controversy over a proper subject.’ ” (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 79, 124 Cal.Rptr.2d 519, 52 P.3d
695.) A plaintiff may seek declaratory relief to resolve a dispute about the impact of a zoning ordinance.
(Alameda Co. Land Use Assn. v. City of Hayward
(1995) 38 Cal.App.4th 1716, 1723, 45 Cal.Rptr.2d 752;
Toso v. City of Santa Barbara (1980) 101 Cal.App.3d
934, 948, 162 Cal.Rptr. 210.)
The City contends the issue is moot and there is no actual controversy. We agree. The city attorney informed the
Levys that “the City has rescinded the Notices of
Violation for the playhouse.... The rescission is
unequivocal. The City has no intention of reissuing
notices.” Because of this there is no “actual, present
controversy” which requires resolution by the court.
(City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79, 124 Cal.Rptr.2d 519, 52 P.3d 695.) This element was
necessary to prove a cause of action for declaratory relief.
Moreover, real estate broker Sullivan’s conclusory
declaration on the home’s marketability was inadequate to show damages. The Levys did not meet their burden to
show a probability of success on the merits.
II. The Federal Civil Rights Cause of Action
[10] The City contends the trial court erred because the Levys did not meet their burden to show a probability of prevailing on the federal civil rights cause of action (1983 claim). ( 42 U.S.C. § 1983.) We agree.
[11] [12] A plaintiff may state a 1983 claim by alleging “facts showing a deprivation of a right” protected by
federal law. (Green v. Obledo (1984) 161 Cal.App.3d
678, 682, 207 Cal.Rptr. 830.) Local governments may be
sued under 42 United States Code section 1983 where
their official policies or practices violate procedural due process rights. (Carey v. Piphus (1978) 435 U.S. 247,
266, 98 S.Ct. 1042, 55 L.Ed.2d 252.)
[13] The City argues that this cause of action is moot
because it rescinded the notice of violation. As the City notes, it “revamped its procedure for issuing orders and provided an extensive appeal and hearing process.” The
Levys did *1260 not show that the City has threatened to remove the playhouse in the future or that it would do so without proper notice. They **514 did not produce
sufficient evidence to show that they suffered damages.
Real estate broker Sullivan’s declaration fares no better in this cause of action. Nor did they show that the City had an official policy that deprived homeowners of due
process notice. Even if Gruett and McCormick did not
provide them proper notice of appeal rights, that by itself is insufficient to impose liability on the City. “Local governments have no liability under 42 United States
Code section 1983 simply because their employees may
have violated a plaintiff’s constitutional rights; the
doctrine of respondent superior does not apply.
[Citation.]” (Choate v. County of Orange (2000) 86
Cal.App.4th 312, 328, 103 Cal.Rptr.2d 339.) The Levys
are not entitled to “an abstract trial on the
constitutionality” of the past actions of some City
employees that cause no damage. (Id. at pp. 329–331,
103 Cal.Rptr.2d 339.) The Levys did not meet their
burden.
III. Injunctive and Declaratory Relief Against the City Council
[14] The City contends that the court erred by ruling that the Levys met their burden to show they would prevail on their second cause of action to enforce City Charter
section 6.10 (Section 6.10) by declaratory and injunctive relief. We agree.
The Levys seek a permanent injunction and a declaratory judgment that “the City Council and its individual
members are precluded by Section 6.10 from engaging in
acts designed to influence City administrative staff
through direct communication with City staff (other than the City Manager), with respect to zoning enforcement
matters such as the Levy playhouse matter.” (Italics
added.) They also allege they “are entitled to issuance of a permanent injunction prohibiting members of the City
Council [and their staffs] from violating Section [6.10.]” They state the injunction is necessary “to allow city
administrative personnel to carry out their administrative duties free from direct pressure or influence by ” city council members. (Italics added.)
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prevent city council members from interfering with
administrative staff. They claim they should make
complaints on behalf of constituents directly through the city manager. But Section 6.10 allows direct contact “for the purpose of inquiry.” That is what Genser did. He
made an inquiry on behalf of Garai.
The Levys contend Genser violated Section 6.10 by what
he said to City staff. But this section prohibits “orders to any subordinates.” The Levys did not show that Genser
gave orders. 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.
*1261 The Levys contend Genser violated Section 6.10
by “advocating” on behalf of Garai. “Government
officials are frequently called upon to be ombudsmen for their constituents. In this capacity, they intercede, lobby, and generate publicity to advance their constituents’
goals....” (Manistee Town Center v. City of Glendale
(9th Cir.2000) 227 F.3d 1090, 1093.) “This kind of
petitioning may be nearly as vital to the functioning of a modern representative democracy as petitioning that
originates with private citizens.” (Ibid.)
[15] [16] [17] Under the First Amendment, legislators are “given the widest latitude to express their views” and
there are no “stricter ‘free speech’ standards on [them] than on the general public.” (Eller Outdoor Advertising Co. v. Board of Supervisors (1979) 89 Cal.App.3d 76, 80, 152 Cal.Rptr. 358.) Laws that restrict that freedom must be narrowly construed. (Ibid.) **515 City officials have First Amendment protection when they respond to
inquiries from the public about the city’s actions on
construction projects. (Nizam–Aldine v. City of
Oakland (1996) 47 Cal.App.4th 364, 376–377, 54
Cal.Rptr.2d 781.)
The Levys seek to enjoin council members from
advocating their constituents’ positions, applying “direct pressure” or “engaging in acts designed to influence” City administrative staff. But that is an overly broad restraint on speech which would inhibit constitutionally protected activity. (Bond v. Floyd (1966) 385 U.S. 116, 136, 87
S.Ct. 339, 17 L.Ed.2d 235; Baggett v. Bullitt (1964)
377 U.S. 360, 372, 84 S.Ct. 1316, 12 L.Ed.2d 377;
American Civil Liberties Union of Southern California
v. Board of Education, supra, 55 Cal.2d at pp. 179–180, 10 Cal.Rptr. 647, 359 P.2d 45.)
It is not easy to distinguish between inquiry and “acts” designed to influence decision. “General words create
different and often particular impressions on different minds.” (Thomas v. Collins (1945) 323 U.S. 516, 534,
65 S.Ct. 315, 89 L.Ed. 430.)
For example, in Thomas, a labor leader was held in
contempt for violating a restraining order which
prevented him from soliciting people to join a union. The Supreme Court ruled that his conviction violated the First Amendment because the trial court’s order “chilled” free speech. Under the order he could discuss the attributes of the union, but was prohibited from soliciting or inviting the audience to join it. The court noted it would be
difficult for the speaker to distinguish between prohibited and protected speech. He would have to anticipate how
the audience might interpret his remarks. There was no
guarantee that “anything he might say upon the general
subject would not be understood by some as an invitation.
In short, the supposedly clear-cut distinction between
discussion, laudation, general advocacy, and solicitation puts the speaker ... wholly at the mercy of the *1262
varied understanding of his hearers....” (Thomas v.
Collins, supra, 323 U.S. at p. 535, 65 S.Ct. 315.) “Such a distinction offers no security for free discussion.”
(Ibid.)
That is the case here. For some, a council member’s
inquiry for a constituent is advocacy simply because it calls attention to the constituent’s position. 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. Council members who may make inquiries under Section 6.10 might refrain from doing so because of fear of being sued or held in
contempt. For example, council members could be
inhibited from calling City agencies about matters crucial to the community such as securing help for families living in substandard housing. “Free speech may not be so
inhibited.” (Baggett v. Bullitt, supra, 377 U.S. at p.
372, 84 S.Ct. 1316.)
The purpose of Section 6.10 is to define the lines of
authority within City government, not to prohibit
protected speech. Interpreting this section to prohibit “orders” to City staff is a bright line consistent with the purpose of Section 6.10 and the First Amendment.
Counsel members “are entitled to speak as they please on matters vital to them; errors in judgment ... may be
exposed, of course, but not through punishment for
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(1962) 370 U.S. 375, 389, 82 S.Ct. 1364, 8 L.Ed.2d 569.) “[E]rroneous statements must be protected to give
freedom of expression the breathing space it needs to
survive.” **516 (Bond v. Floyd, supra, 385 U.S. at
p. 136, 87 S.Ct. 339.) There are better ways to discourage improper conduct. “Under our system of government,
counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech.” (Wood, at p. 389, 82 S.Ct. 1364.)
[18] Moreover, the Levys did not meet their evidentiary burden for injunctive and declaratory relief. Their
complaint alleged an ongoing “pattern of intervention” by council members in “City staff’s performance.” But they made these general allegations on information and belief and did not produce admissible evidence to support them.
Rosenstein stated, “the Levy playhouse matter is not an isolated incident, but ... ‘business as usual’ for one or more [Council] members[.]” But this conclusory
statement is insufficient. (Evans v. Unkow (1995) 38
Cal.App.4th 1490, 1497–1498, 45 Cal.Rptr.2d 624.) He
did not state facts, name the council members or show his personal knowledge. (Ibid.) Other declarations the
Levys filed regarding Genser’s conduct rely on hearsay
and speculation.
*1263 The order denying the City’s motion to strike the Levy’s action is reversed. Costs to appellants.
We concur: YEGAN and COFFEE, JJ.
All Citations
114 Cal.App.4th 1252, 8 Cal.Rptr.3d 507, 04 Cal. Daily
Op. Serv. 452, 2004 Daily Journal D.A.R. 588
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
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