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Are LA City Councilmembers Financially Liable for Interfering with City Departments?

LOS ANGELES

THE VIEW FROM HERE - Most Angelenos know that the city has a feudal structure where each councilmember is the lord or lady of their own council district subject only to the wishes of Prince Garcetti or now Princess Bass.  In fact, noted demographer Joel Kotkin hosts a regular pod cast,   Feudal Future Podcast: The Creator Economy.  The lynchpin of L.A.’s feudal government is the Vote Trading System where all councilmembers agree to vote Yes on each and every project which another councilmember places on the city council agenda in return for a Yes vote of their own projects. Although Penal Code, § 86 criminalized voting system, it is supported by the FBI and by the California Courts.  

The obvious but unstated motive behind the FBI prosecution of former councilmember Jose Huizar is to protect the vote trading system which results in all projects receiving unanimous approval.  January 28, 2021, The Ludicrous Cover-up of LA City Hall Corruption Continues. As previously explained, Huizar was endangering the Vote Trading System’s smooth operation by using the PLUM Committee to hit up developers from all districts for additional donations to councilpersons outside the district where the project was located. A key feature of the system was “One Bribe and Done.” see the 2016 LA Times article A $72-million Apartment Project . . .  Who Wrote the Checks to Elected Officials Weighing Approval? where four councilmembers other than Janice Hahn were recipients of tens of thousands of dollars.  

In December 2016 Judge Richard Fruin ruled that the city council’s actions were de facto non-justiciable, and it did not have to follow Penal Code § 86 or even its own City Council voting rules. 

Councilmembers Routinely Interfere with City Departments

Naturally, one would believe that with total control of their districts, councilmembers could tell the various city departments like the Department of Building & Safety (LADBS) what actions it should and should not take.  When a councilmember, let’s choose one at random – CD 4 Nithya Raman.  Suppose a VIP comes to her and says, “We want to violate all the city fence codes, the Oaks Hillside Ordinance and the Hollywood Grove HPOZ rules as well as the requirement that any non-conforming use must first have an environmental review. Can you help us?”  CD 4 then tells LADBS not issue any Stop Orders on the illegal construction. Later, her VIP will argue that it is economic waste to make it follow the law. 

Then, there is the example also in CD 4, just to select another example at random, where a developer builds the living room wall of his son’s house on the lot line with zero set back. Is there anywhere else in Sherman Oaks where a residence may be constructed on the lot line between two residential properties?  

What Potential Personal Liability Would Her Highness Raman Face for Using Her Influence over LADBS to Allow These Hypothetical Illegalities? 

“When an individual city council member takes unilateral action, his or her conduct may well lose the sanction of the law. The council member may then lose certain protections and immunities from liability.”  March 1, 2007 Legal Notes: A City Council Member’s Role With Respect to Individual City Employees.  There is also the general rule that administrative decisions without jurisdiction have no statute of limitations. 

City Councilmembers are authorized to act as a whole, with a quorum and subject to the Brown Act which requires decisions be made in a public forum with advance notice.  City councilmembers are not in the chain of authority over any city department, and thus, they act outside their legislative function if and when they influence a city employee to take action contrary to city rules and regulations. 

An Important Distinction: Good Inquiries vs Illegal Inquiries 

Councilmembers may make inquiries when a department is acting contrary to the city and state laws. It is within the legislative role to ferret out the facts underlying a complaint of departmental misconduct which the city council may need to address.  Also, referral to the city attorney may be appropriate if and when a councilmember learns of potentially criminal behavior, such as inspectors doing favors for VIPs. 

City Attorney Hydee Feldstein Soto may not prosecute city officials or employees since she is their attorney, but she can take ameliorative actions to assist employees not to break the law. It is doubtful, however, whether the City Attorney may defend a city councilmember or city employee who is personally sued either civilly or criminally for violating the city rules, regulations and ordinances.  The City Attorney has a conflict between her duty to uphold the city’s laws and her defending any councilmember or employee who is accused of acting beyond their immunity.  Furthermore, it is questionable whether the city may pay the employee’s or the councilmember’s attorney fees and other costs when sued for ultra vires acts. 

How A Councilmember Loses Immunity 

If and when a councilmember, however, influences a city employee not to enforce the law, she loses her legislative immunity because obstruction of justice, e.g., preventing code enforcement in a timely manner, is a crime. Bogan v. Scott-Harris, 523 U.S. 44, 54 As people familiar with city hall know, it is common for councilmembers to tell various departments what actions to take and what actions not to take.  Helping city employees follow the law is laudable, while influencing city employees to violate the law is a crime. 

City Councilmembers Lose Immunity for Ultra Vires Conduct 

Ultra Vires is legalese for when public officials take action outside their scope of authority. City councilmembers are elected officials with no authority over the employees of the various departments.  For example, a councilmember may not order LAPD officers to provide special services on behalf of one of his staff members. On the other hand, he may request assistance like any other person may seek the help of the LAPD.  When the city council holds the power of the purse over the department, a “request” to the LAPD or to a city inspector becomes problematic.  When a mob boss says to a shopkeeper, “Nice store you have here. It would a shame if something should happen to it,” is that a compliment or an extortion threat? 

Virtually No One Realizes That Councilmembers’ Legal Immunity Is Limited to Their Legislative Function 

They lose legal immunity when they interfere with the city departments or when they advise homeowners to undertake unlawful actions, such as non-permitted work.  Each time a homeowner’s reliance on the councilmember’s ultra vires behavior causes financial or other harm to a property owner, the councilmember may be liable for the property owner’s financial loss.

 

(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor.  You may email him at [email protected].  The opinions expressed by Mr. Abrams are not necessarily those of CityWatchLA.com.)

 

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