SR 03-22-2022 8A
City Council
Report
City Council Meeting: March 22, 2022
Agenda Item: 8.A
1 of 2
To: Mayor and City Council
From: Joseph Lawrence, Interim City Attorney, City Attorney's Office, Administration
Subject: Appointment of Interim City Attorney and Authorization to Negotiate and
Execute Agreement
Recommended Action
Staff recommends that Council:
1. Appoint Susan Cola as Interim City Attorney commencing April 6, 2022; and,
2. Authorize the Mayor to negotiate and execute an employment agreement with
Ms. Cola for her service as Interim City Attorney.
Discussion
The City Council is in the process of recruiting and hiring a new City Attorney. To
fill the vacancy created by the resignation of Interim City Attorney George
Cardona, effective October 1, 2021, the City Council appointed Joseph Lawrence
to serve as the Interim City Attorney. Mr. Lawrence’s last day serving as Interim
City Attorney is April 5, 2022. The Interim City Attorney, City Manager, and Chief
People Officer jointly recommend that the City Council appoint current City of
Santa Monica Deputy City Attorney and Senior Special Projects Attorney, Susan
Cola to serve as Interim City Attorney pending final recruitment and hiring of a
permanent City Attorney.
Ms. Cola has agreed to serve as the Interim City Attorney at an annual salary of
$288.120.00, which is the salary for the City Attorney position at Step 3 on the
current and previously approved City salary schedule.
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Staff recommends that the City Council appoint Susan Cola as Interim City
Attorney and authorize the Mayor to negotiate and execute an employment
agreement in substantially the form as is attached.
Fiscal Impacts
The additional salary to be paid to Ms. Cola during the period in which she will
serve as the Interim City Attorney is already included in the FY 2021-22 budget
and will have no fiscal impact.
Prepared By: Bradley Michaud, Legal Operations Coordinator
Approved
Forwarded to Council
Attachments:
A. Cola Interim City Attorney Employment Agreement 03.2022
B. Written Comment
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CITY OF SANTA MONICA EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”), entered into this _____ day of March
2022, by and between the City of Santa Monica, a California municipal corporation (“City”),
and Susan Cola (“Cola”), is made with reference to the following:
RECITALS
A. On or about April 29, 2020, George S. Cardona was appointed to serve as Interim
City Attorney as the then City Attorney Lane Dilg was appointed to serve as Interim City
Manager.
B. On or about August 30, 2021, Mr. Cardona announced that he would be leaving
his position as Interim City Attorney effective October 1, 2021.
C. The City then commenced recruitment for a new City Attorney.
D. Effective October 1, 2021, the City Council appointed Joseph P. Lawrence as the
Interim City Attorney.
E. Mr. Lawrence will leave the position of Interim City Attorney effective April 6,
2022, with his last day of employment being April 5, 2022.
F. The City’s recruitment for a new City Attorney remains ongoing and is not yet
completed.
G. The City Council wishes to appoint Ms. Cola as the Interim City Attorney upon
the termination of Mr. Lawrence’s service as Interim City Attorney.
H. Ms. Cola currently serves as a Deputy City Attorney III and Senior Special
Projects Attorney.
I. The City and Ms. Cola wish to enter into an agreement setting forth the terms and
conditions of Ms. Cola’s appointment as Interim City Attorney.
NOW, THEREFORE, the City and Ms. Cola agree as follows:
TERMS AND CONDITIONS
1. Salary and Employment Benefits. In accordance with the existing City salary
schedule for the position of City Attorney, City agrees to pay Ms. Cola an annual base salary of
Two Hundred Eighty-Eight Thousand One Hundred Twenty dollars ($288,120), which is the
salary for the City Attorney position at Step 3 on the current and previously approved City salary
8.A.a
Packet Pg. 386 Attachment: Cola Interim City Attorney Employment Agreement 03.2022 (5041 : Appointment of Interim City Attorney)
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schedule. This salary will be payable in installments in the same manner and at the same time as
other City employees are paid. Ms. Cola shall be eligible to receive all other employment
benefits for which she is currently eligible, in accordance with the Memorandum of
Understanding between the City and the Public Attorneys Union (“MOU”).
2. Termination of Employment As Interim City Attorney. Ms. Cola understands
and agrees that the Interim City Attorney position is an at-will position of limited duration,
subject to termination by the City Council at any time or upon the commencement of
employment of a new City Attorney, whichever occurs first. Upon termination of her
employment as Interim City Attorney, Ms. Cola shall be entitled to resume her position as
Deputy City Attorney III and Senior Special Projects Attorney at the salary and benefits then in
effect for a Deputy City Attorney III, Step 5, and with all applicable employment benefits as set
forth in the MOU.
3. Duration of Agreement. This Agreement shall be effective as of April 6, 2022,
which is the anticipated first date of employment of Ms. Cola as the Interim City Attorney. This
Agreement shall continue in full force and effect until modified by the City and Ms. Cola in
writing.
4. Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties. Any preliminary
negotiations and agreements of any kind or nature are merged into this Agreement. No oral
agreement or implied covenant may be held to vary the provisions of this Agreement. This
Agreement may be modified only by written agreement signed by City and Ms. Cola.
5. Governing Law. The laws of the State of California, without regard to any
choice of law provisions, will govern this Agreement.
6. Venue and Jurisdiction. Any litigation arising out of this Agreement may only
be brought in either the United States District Court, Central District of California, or the
Superior Court of California, County of Los Angeles, West District, as appropriate. The parties
agree that venue exists in either court, and each party expressly waives any right to transfer to
another venue. The parties further agree that either court will have personal jurisdiction over the
parties to this Agreement.
7. Electronic Signatures. Each party agrees that the transaction consisting of this
Agreement may be conducted by electronic means. Each party agrees and acknowledges that it
is such party’s intent, that if such party signs this Agreement using an electronic signature, it is
signing, adopting, and accepting this Agreement and that signing this Agreement using an
electronic signature is the legal equivalent of having placed its handwritten signature on this
Agreement on paper. Each party acknowledges that it is being provided with an electronic or
paper copy of this Agreement in a usable format.
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Packet Pg. 387 Attachment: Cola Interim City Attorney Employment Agreement 03.2022 (5041 : Appointment of Interim City Attorney)
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8. Counterparts. This Agreement may be executed simultaneously or in any
number of counterparts, including both counterparts that are executed manually on paper and
counterparts that are in the form of electronic records and are executed electronically, whether
digital or encrypted, each of which shall be deemed an original and together shall constitute one
and the same instrument.
In witness whereof, this Agreement was executed on the day and year first written above.
CITY OF SANTA MONICA,
a municipal corporation
By: __________________________
SUE HIMMELRICH
Mayor, City of Santa Monica
ATTEST:
_____________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
___________________________
JOSEPH LAWRENCE
Interim City Attorney
__________________________
SUSAN COLA
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Packet Pg. 388 Attachment: Cola Interim City Attorney Employment Agreement 03.2022 (5041 : Appointment of Interim City Attorney)
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Vernice Hankins
From:Nikima Newsome
Sent:Tuesday, March 22, 2022 3:24 PM
To:Vernice Hankins
Cc:Esterlina Lugo; Denise Anderson-Warren
Subject:FW: Personnel Investigation re Surplus Land Act
Importance:High
Hi Vernice,
I know this is a little late but this needs to be added to the agenda as an add‐to and sent to Council. Can you please do
so?
Thank you,
Niki
Nikima S. Newsome (She/Her), MPA/MMC
Assistant City Clerk
(310) 458-8211
santamonica.gov
Facebook | Twitter | Instagram
Subscribe to City of Santa Monica Email Updates
From: Alan Seltzer <Alan.Seltzer@santamonica.gov>
Sent: Tuesday, March 22, 2022 2:10 PM
To: Nikima Newsome <Nikima.Newsome@santamonica.gov>
Cc: Joseph Lawrence <Joseph.Lawrence@santamonica.gov>; Lori Gentles <Lori.Gentles@santamonica.gov>; David White
<David.White@santamonica.gov>
Subject: FW: Personnel Investigation re Surplus Land Act
Please add the email below dated October 26, 2020, to the public comment on Item 8.A (Appointment of Interim City
Attorney).
Thank you.
From: Eda Suh <Eda.Suh@santamonica.gov>
Sent: Monday, October 26, 2020 5:26 PM
To: zurawska@yahoo.com; commissionerbrock@gmail.com; stanatty@yahoo.com
8.A.b
Packet Pg. 389 Attachment: Written Comment (5041 : Appointment of Interim City Attorney)
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Cc: Lori Gentles <Lori.Gentles@santamonica.gov>
Subject: Personnel Investigation re Surplus Land Act
Dear Ms. Zurawska, Mr. Brock, and Mr. Epstein:
I am writing to you in my capacity as the Acting City Attorney overseeing the administrative investigation that
was conducted into your allegations of wrongful conduct by Interim City Manager Lane Dilg, Interim City
Attorney George S. Cardona, Deputy City Attorney Susan Cola, Housing and Economic Development Director
Andy Agle, and Senior Development Analyst Kriss Casanova (collectively, “respondents”). You allege that
respondents failed to provide certain information to the State of California Department of Housing and
Community Development, Division of Housing Policy Development (“HCD”), regarding the application of
Assembly Bill 1486 (“AB 1486”), which amended the Surplus Land Act (“SLA”), with respect to the
development of the Plaza at Santa Monica by a development entity (“Developer” is used herein for any
iteration of the developers or their attorneys).
The City retained independent attorney-investigators Arlene Prater and Ethan Walsh of Best Best & Krieger,
who interviewed five individuals and examined documentary evidence. The investigators concluded based on
the credibility, weight, and sufficiency of all the evidence generated during the investigation that none of the
allegations were sustained and there were no violations of the City’s Code of Ethics or any other applicable
City policy, law, or regulation in the matters at issue. The factual background and findings are as follows:
In 2013, the City and Developer commenced negotiations to redevelop a site for a mixed-used development
(the “Project”). On March 19, 2014, the City and Developer entered into a written Exclusive Negotiating
Agreement (“ENA”) for the Project. The ENA expired on December 19, 2015, but the City and Developer
continued to meet and work on the Project. A letter dated January 23, 2019, from Mr. Agle to Developer,
memorialized the parties’ agreement to continue non-binding negotiations (the “January 23, 2019 Agle Letter”).
AB 1486 was subsequently signed by the Governor in October 2019, to become effective on January 1, 2020,
and which imposes new restrictions on the development of surplus land but exempts certain projects where the
local agency and developer have entered into an exclusive negotiating agreement or legally binding agreement
for disposition of property if completed by December 31, 2022. In a letter dated December 12, 2019, Ms. Cola
asked Developer for their review of the applicability of AB 1486 to the Project (the “December 12, 2019 Cola
Letter”). A responsive letter dated December 16, 2019, from Developer to Ms. Cola set forth Developer’s
position that the Project is exempt from the new SLA requirements (the “December 16, 2019 Developer
Letter”). By letter dated January 22, 2020, Mr. Agle requested that HCD determine the applicability of the new
law to the Project; by email the next day, Ms. Cola provided HCD a copy of the expired ENA and the
December 16, 2019 Developer Letter. In a letter dated January 27, 2020, Ms. Cola informed Developer that the
City was seeking HCD’s determination of the applicability of AB 1486 to the Project (the “January 27, 2020
Cola Letter”). A February 12, 2020 email from HCD to Ms. Cola and Mr. Agle rejected one of Developer’s
contentions that the SLA does not apply and stated that there was insufficient information provided by
Developer to explain Developer’s other two contentions to HCD. In a letter dated March 16, 2020, Developer
provided HCD additional information and documents to support Developer’s position that the Project was
exempt from the new law, including the January 23, 2019 Agle Letter. A responsive letter dated March 24,
2020, from HCD to Developer concluded that it appeared the City’s disposition of the Project site qualified for
an exemption based on the existence of an ongoing ENA, which is not defined in the SLA, nor does the SLA
state that it must be in writing.
You allege that respondents improperly and intentionally hid information from HCD relating to the applicability
of the amendments to the SLA. Specifically, you allege that Mr. Agle’s January 22, 2020 letter to HCD failed to
mention either the January 23, 2019 Agle Letter or the December 12, 2019 Cola Letter, the contents of those
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Packet Pg. 390 Attachment: Written Comment (5041 : Appointment of Interim City Attorney)
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letters which stated that the ENA expired in 2015, that the City and Developer agreed there were no
commitments to continue negotiations, and that Developer agreed there could be no damages or other remedy
claim by Developer against the City if they stopped negotiating. You allege that this information was repeated
in the January 27, 2020 Cola Letter, which was also not sent to HCD. You further allege that respondents knew
there cannot be a “constructive” or oral ENA under settled California law, and that the ENA must be approved
by the City Council, which was not done here, and respondent attorneys had an obligation to inform HCD of
this settled law. You assert that had HCD been provided the foregoing information, HCD might have reached a
different conclusion.
The investigation found that respondents were not obligated under the SLA or any other legal requirement to
seek HCD’s guidance, but respondents decided to request it because of HCD’s role in overseeing the SLA
process and determining compliance with the SLA. The City’s request to HCD at this stage of the Project is not
mandated by law, so there is no specific guidance on what information or documentation a city would be
required to provide HCD. Therefore, the investigators determined that respondents did not violate any legal or
policy requirements by not providing to HCD the letters cited by you. Regardless, the information that you
allege was concealed from HCD was actually provided to HCD: the City explicitly stated in its letter to HCD that
the ENA had expired by its terms; HCD understood that the ENA was no longer in effect; and all
correspondence between the parties made clear that all parties understood the ENA was no longer in effect.
Further, HCD did have the January 23, 2019 Agle Letter before making its determination (provided by
Developer with their March 16, 2020 letter to HCD), and you admitted that the contents of the January 23,
2019 Agle Letter and the December 12, 2019 Cola Letter were “carbon copies.” The investigators found no
substantive difference in those letters and the latter letter would not have added anything; so, HCD did have
the information that you allege was “hidden” from HCD before HCD provided its two opinions.
Therefore, the investigators determined that there is no evidence to conclude that respondents concealed or
failed to provide certain substantive or factual information from HCD because HCD had the information at issue
when it made its determination regarding the Project.
The investigation also found that there is not “settled” California law on the question of whether a constructive
or oral agreement qualifies as an “exclusive negotiating agreement” such that it would qualify for the exemption
under the SLA. This exemption had just been enacted, and as HCD noted in its determination, there is no
specific definition of an exclusive negotiating agreement for purposes of the exemption. The investigators
found that there are valid legal arguments on both sides of the question of whether the exemption applies in
this circumstance, which is why respondents sought guidance from HCD before AB 1486 took effect; however,
until the courts provide additional guidance, this will not be a settled issue.
Therefore, the investigators determined that there is no evidence to conclude that respondents concealed or
failed to provide any legal analysis or legal opinion to HCD or had an obligation to inform HCD about any
“settled law” because there is not any settled law that would apply to the language of AB 1486.
The investigators concluded that there is no evidence to support the claims of violation of the City’s Code of
Ethics or any law, regulation, or City policy, or any improper motive by respondents, or any of the respondents
in their communications with HCD, or in any other manner, as alleged.
Based on the above findings, the City considers this matter closed. Thank you for bringing your concerns to the
City’s attention and for your cooperation in this investigation.
Eda Suh
Chief Deputy City Attorney, Public Rights Division
City Attorney’s Office
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Packet Pg. 391 Attachment: Written Comment (5041 : Appointment of Interim City Attorney)
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1685 Main Street, Third Floor
Santa Monica, CA 90401
Tel. 310.458.8348
eda.suh@smgov.net
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Packet Pg. 392 Attachment: Written Comment (5041 : Appointment of Interim City Attorney)