Santa Monica Looting, Protesting and Other Events of May 31, 2020 Cry Out for a Truly Independent Investigation

Aside from budget problems and services cuts, one of the most important issues bothering Santa Monica citizens is the unfolding of events on Sunday, May 31, the intelligence the day before and statements by senior staff and Council members after.

This past Tuesday, Sue Himmelrich introduced Item 13C, intended to bring about an independent investigation of the May 31 related matters. She stated that her rushed language was unfortunate and all the Councilmembers present (Ted was on Zoom for his daughter's graduation) passed a motion that the investigation should be by an independent expert and be thorough. This part of the motion satisfies the angry and widespread demands that brought it about.

However, another part of the adopted motion is in violation of parts of the City Charter, and Municipal Code, adopted in April, 2019. The Council, without objection from the Interim City Attorney or Interim City Manager (formerly the City Attorney) and with two attorneys as members of the Council, designated the OIR Group as the entity to do the investigation.

There was basically no discussion about OIR. There had been no preparation, staff report or other information known to Councilmembers other than it had investigated an improper arrest of Oscar de la Torre in 2011. This is a violation of the City's own laws.

Here are the provisions of the applicable law violated by Council on Tuesday.

A. Charter of the City of Santa Monica, Section 608, entitled "Public Contracts" gives Council authority to adopt ordinances and requirements relating to personal service agreements. These are to preserve public confidence in the integrity and transparency in the City's contracting process and to obtain services of appropriate quality.

B. Municipal Code Chapter 2.24 is entitled "Purchasing System" and has the following provisions thereunder:

.010 This chapter is to conform with the City Charter.

.060 After the end of other provisions set forth below, Council awards Professional Service Agreements (PSAs) of more than $95,000.

.070 Also after end of other provisions, the City Manager awards PSA of $95,000 or less.

.140 This defines PSAs to clearly cover the independent investigation in relation to 5/31, etc.

1. If the contract is from $25,001 to $95,000, it is subject to .210 which relates to "informal solicitation procedures."

2. If more than $95,000, .220 applies and this is called "formal solicitation procedures."

In view of the money the City paid to investigate Councilmember Pam O'Connor's misdeeds relating to Elizabeth Riel ($420,000), the City should not be looking to shortchange this far more important and complex 5/31 investigation. A world class police operations expert told me that the investigation of a single killing by an officer cost $400,000. And, we are aware that legal fees in the district election case can run as high as $40 miilion. As suggested, the investigation fee should be properly taken out of the police budget.

Update, 6/18/20

It is personally gratifying that Interim City Attorney George Cardona and Coouncilmember Sue Himmelrich agree with my legal analysis in a June 14 email. Ms. Himmelrich has revised her original proposal to conform with Santa Monica laws relating to RFPs and to set forth the wide scope of the independent investigation. Thank you.

To substantially further protect the integrity of the process, it is imperative that Interim City Manager Lane Dilg and Police Chief Cynthia Renaud recuse themselves from all actions associated with the forthcoming fact finding since they are the main principals in the issues to be investigated. Council should on Tuesday require the recusals, including a specific transfer of Ms. Dilg’s role under Code Section 2.24.220 to recommend to Council an entity to be awarded the Professional Services Agreement.

.190 For a PSA, the best qualified entity test includes:

a. Training, credentials, experience,

b. Competence, ability, skills,

c. Financial resources,

d. Integrity, reputation,

e. Fair price; but the award does not have to go to the lowest.

.210 For PSAs up to $95,000, here are the Informal Procedures: Notices sent by Finance Department to prospective consultants; not less than 3 bids, evaluation by City Attorney; contract award by City Manager.

.220 For a PSA over $95,000-Formal Procedures: 2 ads in newspaper; posting on website; evaluation by City Attorney or Manager pursuant to .190; City Manager recommends to Council for its decision. This is commonly known as an RFP procedure.

I spoke to George Cardona on Wednesday and Sunday about the statutory violations by Council. He said neither he nor any of his 25 lawyers had yet finished a review of the applicable sections to determine if Council acted legally Tuesday. Lane Dilg told NOMA on Thursday that OIR had been selected by Council. As of now, this is wrong and the community will certainly oppose it. George said he will open up the process to Informal or formal procedures if his research shows I'm correct.

I suggest the following:

1. Council passes an amended motion on June 23. This will eliminate the reference to OIR.

2. George and Lane (see below) promptly begin the search for the appropriate consultant under RFP rules. I have spoken to Jones, Day and a world renowned expert in the field and both groups will probably show interest. Others will certainly suggest candidates. OIR is not barred from applying.

I have requested that Lane (and the Police Chief) recuse themselves from all matters related to or in connection with 5/31 because they both have conflicts of interest since they are the principal subjects of all investigations and should not influence anything. Both have appropriate assistants to handle such matters. Lane has apparently rejected this so the issue should be a part of the independent investigation.

Finally, I think residents are entitled to better professionalism from Council and the two most senior staff members on a matter of this huge significance.

Stan Epstein