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Fight Brewing Over De la Torre's Participation in Voting Rights Deliberations

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By Jorge Casuso

January 25, 2021 -- The City Attorney's office and Councilmember Oscar de la Torre are at loggerheads over whether the newly elected Councilmember can participate in closed session items involving the voting rights lawsuit against the City.

De la Torre could be the swing vote in deciding whether the City should stop fighting the nearly five-year-old lawsuit filed by his wife, Latina activist Maria Loya, and the Pico Neighborhood Association (PNA), where he served as a Board member until November.

In a short staff report for a special session Tuesday, City Attorney George Cardona recommends that the Council determine that de la Torre has a common law conflict of interest.

That conflict would disqualify him "from participating in or attempting to influence discussions or decisions relating to this litigation," Cardona wrote.

Mayor Sue Himmelrich said the discussion via teleconference at 4 p.m. Tuesday will be held in open session "so everyone can see it.

"This will be an open discussion, and Oscar will be able to air his grievances and talk about why he thinks he is not disqualified," Himmelrich said.

De la Torre is fighting back. "The City Council is not the right body to make that determination," he said. "You have a legal system to decide that."

De la Torre said he would abide by guidance from the Fair Political Practices Commission (FPPC)-- which both he and the City sought -- or from the California Attorney General.

"I'm just waiting for someone other than the City Council or the City Attorney because they're conflicted," de la Torre said of the Council members who voted to fight the lawsuit.

"They oppose implementing the CVRA (California Voting Rights Act) and continue to waste taxpayer dollars to do so," he said.

In a statement to the Lookout Monday, the City said it has sought guidence from both the FPPC and the California Attorney General on whether there was a common law conflict of interest.

"The City is still awaiting guidance from the FPCC, but the California Attorney General has advised that its statutory authority does not permit it to provide guidance," the statement said.

"Because a common law conflict would preclude participation in discussions regarding the CVRA case, the issue regarding the conflict has been put on the agenda before the currently scheduled closed session discussion of that case.

"Council retains the discretion to postpone discussion of the conflicts issue until guidance is received from the FPPC regarding financial conflicts, but this would require postponement of any CVRA discussion as well," the statement concluded.

The voting rights lawsuit is currently before the California Supreme Court, which last month granted the City's request for a 60-day extension to submit its responding brief ("City Granted Extension to Submit Voting Rights Brief," December 29, 2020).

In making his recommendation to the Council Friday, the City Attorney cited a 12-year-old opinion by former Attorney General Jerry Brown.

The opinion concerns a vote by a city redevelopment agency member whose son was seeking a property improvement loan for a commercial property he owned.

In Brown's opinion, "the common law prohibition extends to noneconomic interests," barring public officials "from placing themselves in a position where their private, personal interests may conflict with their official duties."

"In our view, the agency board member’s status as the private contracting party’s parent and co-tenant places her in a position where there may be at least a temptation to act for personal or private reasons rather than with 'disinterested skill, zeal, and diligence' in the public interest, thereby presenting a potential conflict,'" Brown wrote.

De la Torre has obtained his own legal opinion from The Ambrose Group, a Los Angeles-based law group that disagrees with the City Attorney's recommendation.

"In our opinion, not only is Mr. de la Torre not required by law to recuse himself from those decisions, but he should not recuse himself," wrote attorney Daniel Ambrose.

Ambros argues that "it is debateable whether this common law doctrine is still viable in California," since the State legislature has passed subsequent laws addressing the issues covered by the prohibition.

A common law conflict only "exists where the personal interest of an elected official contradicts the interest of the political subdivision that official was elected to represent," Ambrose wrote.

He notes that voters in November elected three challengers -- de la Torre, Phil Brock and Christine Parra -- "who promised they would end the City's expensive fight" against the voting rights lawsuit with the adoption of district-based elections.

"It would be a disservice to the residents of Santa Monica for Mr. de la Torre to recuse himself and thus weaken the voice of the electorate," Ambrose wrote.

De la Torre, who served on the School Board for 18 years, said he first learned the Council was being asked to bar him from closed session on Friday, when the agenda item was posted.

"It feels like an overreach," he said. "And it feels biased."

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