City Hall (File photo)

The Oaks Initiative, Santa Monica’s anti-corruption law, is currently inoperative due to a lack of lawyers willing or able to prosecute alleged violations.

Voters passed the law to prohibit elected officials from profiting from their positions. The law prohibits elected officials from accepting employment, gifts or other monetary benefits from individuals or companies that have benefited from the decisions those officials make while in office.

Under the law, complaints can be lodged against the City Council, Planning Commission, Architectural Review Board or other elected offices. Any investigative duties related to a complaint reside with the Santa Monica Police Department and the initial responsibility for prosecution would fall to the City Attorney’s office.

As the complaints are likely to be lodged against individuals that work with, supervise or otherwise interact with the City Attorney’s office, City Attorney Marsha Moutrie has said her office has conflict of interest investigating those it works for and is therefore unable to move forward with complaints.

“After an investigation is completed and if the Police department or another agency files a crime report with this office, the Criminal Division evaluates the case for prosecution,” said Moutrie in a recent letter. “However, as to the Council Members and staff members that we routinely advise (including the City Manager), we can neither perform investigations nor make filing decisions because they are the office’s co-workers and civil clients, and we cannot take action against them (an ethical duty which also applies to past clients). In such conflict situations, we refer crime reports to the District Attorney’s office for filing decisions. In situations where the DA also declares a conflict, we refer matters to the attorney General. These are standard procedures for misdemeanor prosecution by in-house city prosecutors.”

There have been two complaints filed citing the initiative, both brought by the Transparency Project, an all-volunteer local watchdog group. The first was against then-mayor Pam O’Connor regarding inappropriate campaign donations. That complaint did not require an investigation, as O’Connor admitted to taking the donations and the City Attorney cited its conflict of interest when it referred the case up the chain.

However, both the county District Attorney and the state Attorney General provided written statements declining to participate in Oaks Initiative prosecutions.

In a letter dated Nov. 24, 2014, the Los Angeles County District Attorney’s office District Attorney Jackie Lacey declined to take up the complaint as doing so due to the Santa Monica office’s conflict of interest would “result in the Los Angeles County District Attorney’s Office becoming the de facto enforcer of this local misdemeanor offense.”

Lacey also lists a second reason: potentially problems with the law’s validity. “…my office also has concerns regarding the constitutional validity of this provision of the City’s Charter.”

Lacy offered two solutions.

“As an alternative, it is possible that the City could create a wall of silence between an individual city attorney and the remainder of the office so recusal of the entire office is not necessary,” she said. “Finally, the City may wish to again seek a judicial ruling on the constitutional validity of the law, as the case may now be ripe for judicial review.”

Per the outlined process, the Santa Monica City Attorney then asked for help from the State.

In a letter dated April 13, Senior Assistant Attorney General Lance E. Winters said, “We recognize the potential conflict if the City Attorney herself, who serves at the Council’s pleasure, personally handles the matter. We concur with the District Attorney’s office, though, that the assignment of a deputy city attorney who is properly insulated from the rest of your office and the City Council should obviate any conflict concerns.”

Moutrie said trying to isolate a city employee from all others is impractical. Aside from the physical difficulty associated with such isolation, she said the public wouldn’t trust an investigation coming from the City Attorney’s office into other city officials and the attorney would apparently be unaccountable.

The complaint against O’Connor has sat idle since that time.

Moutrie said there was a possibility of exploring a partnership with another municipality for future enforcement actions.

“The city could contract with an outside person or entity to undertake enforcement efforts, the nature of, and who it was with would probably depend on the circumstances of the case,” she said.

The City of Pasadena could be a potential partner as that city has also adopted the Oaks Initiative and is likely to experience similar problems with enforcement.

The Transparency Project filed a second complaint this year against former City Manager Rod Gould regarding his employment with Management Partners because the company was hired as a consultant to the city while Gould worked for Santa Monica. That complaint was dismissed, as the law has no jurisdiction outside City’s borders and Gould’s employment occurred after his departure.

As written, the law also only applies to elected officials, although some sections of the City’s website suggest its intent could be applied to employees.

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