m20210126_Spec.pdf 1 January 26, 2021
CITY OF SANTA MONICA
CITY COUNCIL MINUTES
JANUARY 26, 2021
A special meeting of the Santa Monica City Council was called to order by Mayor Himmelrich at 4:00 p.m.,
on Tuesday, January 26, 2021, via teleconference pursuant to the Governor’s Executive Order N-29-20 at
https://primetime.bluejeans.com/a2m/live-event/tzszchdr
Roll Call: Present: Mayor Sue Himmelrich
Mayor Pro Tem Kristin McCowan
Councilmember Phil Brock
Councilmember Gleam Davis
Councilmember Oscar de la Torre (arrived at 4:04 p.m.)
Councilmember Kevin McKeown
Councilmember Christine Parra
Also Present: Interim City Manager Lane Dilg
Interim City Attorney George Cardona
City Clerk Denise Anderson-Warren
CONVENE On order of the Mayor, the City Council convened at 4:00 p.m., with all
members present except Councilmember De la Torre.
STAFF
ADMINISTRATIVE
ITEMS:
Councilmember De la Torre
arrived at 4:04 p.m.
8.A. Pico Neighborhood Association and Maria Loya v. City of Santa
Monica – Determination Regarding Common Law Conflict of Interest
of Councilmember de la Torre, was presented.
Recommended Action
With respect to the pending litigation in Pico Neighborhood Association
and Maria Loya v. City of Santa Monica, Los Angeles Superior Court,
Case No. BC 616804, Second District Court of Appeal, Case No. B295935,
California Supreme Court, Case No. S263972, in which one plaintiff is an
association for which Councilmember de la Torre was, until November
2020, a board member, and the other plaintiff is Councilmember de la
Torre’s wife, staff recommends that Council determine that, in accordance
with the principles set out in AG Opinion 07-807 (Jan. 14, 2009),
Councilmember de la Torre has a common law conflict of interest and is
therefore disqualified from participating in or attempting to influence
discussions or decisions relating to this litigation.
Questions asked and answered of staff included, was there any preliminary
opinion from the FPPC; is there a timeframe that we can expect a final
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determination; could Council temporarily disqualify Councilmember De la
Torre pending a decision from an outside agency; even if the FPPC rules on
the financial conflict issues, there still won’t be a decision on the common
law issue; is it accurate, any decision from the FPPC won’t address the
common law issue that is being raised tonight; is it correct that this decision
is being determined by the City Council, not the City Attorney; if this were
a financial conflict, then the FPPC would be the higher power for
resolution, but because this is not a financial issue, who is the higher power
on this type of matter; what are the penalties if a Councilmember is found
to have a conflict; what determines when Attorney-Client privilege is
broken, and who decides when it’s broken; what is the penalty of privilege
being broken; is that correct that the FPPC has not given a determination;
who advised the Interim City Attorney to seek a decision from the State
Attorney General; has anyone on the dais had conversations about the
recusal issues with Attorney Shenkman, who is the legal representative for
the CVRA lawsuit; how long would it take to receive a court action from
this; and, is there a way to proceed with the prior direction, without
addressing issues that would cause Councilmember De la Torre to have to
recuse.
Members of the public Stan Epstein, Ann Thanawalla, Denise Barton,
Tricia Crane, Bob Selden, and, Olga Zurawska spoke to the recommended
action.
Councilmember De la Torre responded to a comment made by a member of
the public that he was advocating for the Pico Neighborhood Association to
drop the CVRA case, and that is not true. He said, he would prefer that the
city drop its appeal.
Considerable discussion ensued on topics including, but not limited to:
reasons this is viewed as a conflict of interest because this is about
litigation, not a discussion about public policy; it was obvious that
Councilmember De la Torre was involved from the beginning of this
litigation as the opposition; this is not about the merits of whether or not the
city should have district elections, this is about allowing a spouse of a
litigant be allowed in the room for a private discussion; Council needs to
air on the side of caution and integrity; closed session is a sacred space, so
it’s better to air on the side of caution and consider this a conflict of
interest; and, everybody brings their own bias or opinion, but that is not a
conflict of interest, because Councilmember De la Torre is married to the
person who brought about the lawsuit against the city, therefore he should
not be allowed to sit in on the closed session discussion.
Councilmember De la Torre shared why he should be able to participate,
and provided statements to support his opinion, and why he is not planning
to recuse.
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Motion by Councilmember McKeown, seconded by Councilmember Davis,
that the City Council respectfully request Councilmember De la Torre to
recuse himself on all matters involving Pico Neighborhood Association and
Maria Loya versus the City of Santa Monica, and that should he decline
that respectful request, that Council determine that a conflict of interest
exists, and he is therefore disqualified from participating in any discussion
related to the litigation.
After considerable discussion, as part of the original motion,
Councilmember McKeown respectfully requested that Councilmember De
la Torre voluntarily recuse himself.
Councilmember De la Torre stated that he would not recuse himself.
Since Councilmember De la Torre refused to recuse himself. The Mayor
restated the new motion for clarification that the City Council will
determine that Councilmember De la Torre is disqualified because he has a
common law conflict of interest, and therefore would be disqualfied from
participating in, voting, or attempting to influence discussion or decisions
relating to this litigation Pico Neighborhood Association and Maria Loya v.
City of Santa Monica. The motion was approved by the following vote:
AYES: Councilmembers Davis, McKeown,
Mayor Pro Tem McCowan, Mayor Himmelrich
NOES: Councilmembers Parra, De la Torre
ABSTAIN: Councilmember Brock
ADJOURNMENT On order of the Mayor, the City Council meeting adjourned at 5:44 p.m.
ATTEST: APPROVED:
Denise Anderson-Warren Sue Himmelrich
City Clerk Mayor
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