March 5, 2021 Breaking News, Latest News, and Videos

FPCC Rules Councilmember Has No Financial Conflict of Interest Surrounding Voting Rights Case

State commission rules Councilmember Oscar de la Torre does not have a financial conflict of interest in voting rights case

By Sam Catanzaro

California’s Fair Political Practices Commission (FPCC) has ruled that a Santa Monica lawmaker does not have a financial conflict of interest surrounding a voting rights case brought against the city by his wife, but did not weigh-in on whether he had a common law conflict.

The case, filed by plaintiffs Pico Neighborhood Association, Maria Loya and Advocates for Malibu Public Schools, alleges that Santa Monica’s at-large election system dilutes Latino voting power in violation of the California Voting Rights Act (CVRA) and discriminates against Latino voters in violation of the Equal Protection Clause of the California Constitution.

In a 2019 ruling, the Los Angeles Superior Court Judge ordered that all future elections for seats on the Santa Monica City Council be based on a seven-district map drawn by an expert for the plaintiffs, including a 30 percent Latino district. The City then appealed this decision.

In July 2020, the California 2nd District Court of Appeal ruled in favor of the city saying that Latinos, who account for 14 percent of Santa Monica’s electorate, lack the numbers to win an election in the 30 percent Latino district ordered by the county.

After the Appeals Court rejected a petition for a hearing, the plaintiffs filed their case with the California Supreme Court. On October 21 the Supreme Court took up the case, depublishing the Appellate Court ruling. The court has granted the City an extension until March 22 to file its answer brief on the appeal’s merits.

At the January 26 Santa Monica City Council meeting, lawmakers voted on whether Councilmember Oscar de la Torre can participate in discussions and decisions relating to the case. De la Torre’s wife is plaintiff Maria Loya and until November 2020 he served on the Pico Neighborhood Association’s board. Santa Monica Interim City Attorney George Cardona, in a staff report, recommended that the Council decide de la Torre has a Common Law conflict of interest (as opposed to a financial conflict). In the end, Council voted 4-2 with one abstention to exclude de la Torre from participation in any closed session or confidential conversation concerning the CRVA lawsuit and voting on any decisions relating to the case.

Oscar de la Torre.

During the meeting, Cardona said that the City was at the time awaiting guidance from California’s Fair Political Practices Commission (FPCC) on the matter. Cardona noted, however, the agency would likely not advise on Common Law conflicts “unless they were to break from their past practice.”

A week after the council’s decision, the FPCC responded to the city’s request for guidance. Citing California’s Political Reform Act and Government Code section 1090, the agency opined that neither of these statues “prohibits Councilmember de la Torre from participating in governmental decisions relating to the City’s pending litigation, including a potential settlement agreement, where his spouse is a named plaintiff.”

The commission did not, however, weigh in on whether de la Torre has a common law conflict on interest.

“Please note that we are only providing advice under the Act and Section 1090, not under other general conflict of interest prohibitions such as common law conflict of interest,” the FPCC wrote.

At the January 26 City Council, this was a central topic of contention during a nearly two-hour debate.

Mayor Sue Himmelrich at the meeting compared the situation to the football game in explaining why she believed de la Torre should be excluded from the discussions.

“It’s like a football game,” Himmelich said. “If I am going into a huddle to my last charge towards the goal line, I am not inviting the coach for the other team into my strategy session about the play I am about to call. It just not make sense. Similarly, I would never be asking Maria Loya or PNA to attend their sessions with their lawyer Mr. [Kevin] Shenkman to discuss what their strategy is going to be on this case where they are opponents. And we cannot look at this like the litigation is identical to the issue of district elections. They are separate issues. We can discuss district elections, what they should look like, whether we should have them, whether we need other charter reform with Oscar de la Torre in the room, you know at the table, and discussing all of that.”

In response to these points, de la Torre argued at the meeting that his connection to the case is no different than other Councilmembers participating in areas that they are passionate about.

“I care deeply about voting rights of minorities in Santa Monica and California more generally. Just like Sue, everyone knows that you care deeply about affordable housing. Just like Kevin, everyone knows that you care about environmental issues. My wife Maria and the entire Pico Neighborhood Association board also care deeply about minority voting rights in Santa Monica. That is why in late 2015, they raised the illegality of Santa Monica’s at-large Council elections to the City Council here and the City Attorney,” de la Torre said.

Oscar del la Torre speaking at a 2018 rally outside City Hall Tuesday protesting the City’s decision to appeal in a voting right’s case. Photo: Sam Catanzaro.

This is the second instance in recent months that the FPCC has gotten involved in Santa Monica politics. In an October 16 letter, FPCC General Counsel Dave Bainbridge advised Councilmember Gleam Davis that she has a financial conflict of interest in decisions relating to the Miramar Hotel redevelopment project. Davis is married to John Prindle, a high ranking employee with Dell Technologies and Dell’s CEO Michael Dell owns the Fairmont Miramar Hotel & Bungalows through his investment firm MSD Capital. According to Davis, her family did not stand to benefit financially from the Council’s approval of the Miramar expansion but still opted to recuse herself before the September 29 meeting in which City Council approved the 502,157-square-foot redevelopment proposal with a 4-2 vote.

“The [State’s Political Reform] Act would prohibit you from taking part in decisions concerning the Fairmont Miramar Hotel because it is owned by Ocean Avenue LLC, an entity which is otherwise related to a business that is a source of income to you,” Bainbridge wrote.

While Davis did participate in numerous decisions relating to the Miramar expansion before her September recusal, Bainbridge noted that “nothing in this advice letter should be construed to advise about any conduct that has already taken place.”

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