|Los Alamitos City Council|
(Mod: J.M. Ivler is a concerned Los Alamitos resident and good government advocate who played a significant role in the controversies there surrounding the resignation of Sandi Levin as City Attorney. Ivler is one of the two Los Al residents that initiated a lawsuit challenging an unethical trash removal contract (click here). Despite Levin's assurances that "the law was followed to a T," a Superior Court Judge demurred and found that the law had not been followed at all. As posted on the Let's Fix Los Al! blog, a complaint regarding Sandi Levin and actions taken to remedy an alleged Brown Act violation has now been sent by Mr. Ivler to the California State Bar. Below is that complaint.)
To the State Bar of California
1149 South Hill Street
Los Angeles, California 90015-2299
Not being a member of the State Bar I have no idea of whom to address my concern. Normally if you are a client for an attorney, you can go to the Bar if you think there may have been a violation of professional ethics, but in this case I am not the client, but am affected by the attorney and the decisions that she makes for the client. The client is my City Council here in Los Alamitos, California. The City Attorney works for them, and through them I guess she works for us, the residents.
The issue at hand goes back over a year ago, and has been run in a way that I believe is questionable at best. Ethically challenged would be an understatement.
Let’s start in December 2011 when the City Council as a body voted/instructed the City Attorney to look into the actions of one of the City Council Members and determine if that Member had violated the State’s Brown Act (a criminal violation) through his actions, and then bring the issue back to the City Council (body) with her opinion and their options.
In January 2012 the item was on the agenda for discussion and a vote. The agenda included a nine page document completed by the City Attorney outlining her legal opinion on whether or not the Brown Act had been violated. During City Council discussion on the document and the recommendation the Mayor stated that the issue was “binary,” either these were violations or they were not. The Mayor Pro-Tem stated that if they were violations of the Brown Act and the City Council failed to take action on them, then the City Council was equally liable for the violations by their inaction.
In the end the City Council majority voted for the City Attorney to take the following actions on the charges leveled against the Member for violations of the Brown Act as per the nine page indictment that the City Attorney created.
On January 17th 2102 the City Council voted to do the following list of items as prepared by the City Attorney:
2. Establish a policy or ” code of conduct” for the handling of confidential closed session information and adopt specific rules for all future meetings.
3. Retain a City Prosecutor to seek a court order, writ of mandate, or injunction preventing further disclosure of confidential closed session information by Council Member Kusumoto and/or barring him from further closed sessions regarding the litigation at issue.
4. Direct the City Attorney to refer the matter to the District Attorney. The matter may be investigated and may or may not be prosecuted under state law.
5. Direct the City Attorney to refer the matter to the Attorney General. The matter may be investigated and may or may not be prosecuted under state or local law.
6. Direct the City Attorney to refer the matter to the Grand Jury. The Grand Jury may investigate the matter and determine whether to initiate removal proceedings.
7. Direct a City Prosecutor to prosecute the matter as a misdemeanor under the Municipal Code. This option is not recommended as there is a potential bar to prosecution due to pre-emption.
I would like to direct your attention to items 3, 4, 5, 6 and 7.
Items 4, 5 and 6 of the instructions were very clear and concise and aligned with the Mayor Pro-Tem's statement that to NOT take action was not an acceptable thing for the City Council, as a body, to do. There were clear instructions that three government agencies were to have the complaint forwarded to them so that they could choose to take action on the criminal charges as outlined in the nine page document prepared by the City Attorney.
Items 3 and 7 were clear instructions to file something with a court that would generate a writ that would order the Member to follow the Brown Act (item 3). And Item 7 is for a city paid prosecutor to also then prosecute the Member for those infractions as detailed in the nine page document.
Of these five items that the City's legal Counsel ordered performed based on a vote by the majority of the body (the client), only one seems to have been completed as of this date over 10 months later.
Per requests to City Council as of 10/01/12 there has been no action taken on Items 4, 5 and 6 of the instruction to the City Attorney. The District Attorney, the Grand Jury and the Attorney General have not had the nine page document sent to them for them to start an investigation, or a prosecution for the criminal charges of violating the Brown Act as was documented in the nine page memorandum from the City Attorney.
Since there was no other vote by the body instructing the City Attorney to cease filing the complaint to the agencies listed, and since that task takes minimal hours to complete and can be delegated to lower level staff if the City Attorney chose to do so, it appears as if the City Attorney has chosen to willfully ignore the specific instructions provided to her by the client.
Actions on Items 3 and 7 actually are a bit confusing. The City Manager hired an external law firm to handle the prosecution. The firm selected has billed the City and has been ordered by the City Council to be paid for their work. But since there is no work product for the money spent (according to the City Attorney), no action was taken outside of paying for nothing.
A look at the invoices shows that the outside legal counsel did research, which would have created a work product of notes and points of law regarding the nine page document of charges the City Attorney produced. In addition a different attorney at the firm charged for services in producing a “draft” document.
This too would be a work product produced by the counsel hired to prosecute the case. Since it is unclear by the public responses if the outside counsel was working on item 3 or item 7, a viewing of the work products produced would indicate which of the two items the outside counsel was working on, and would also provide input to the body that would allow them to know if they should continue on Item(s) 3 and or 7. When asked for the work product of outside counsel by members of the City Council body, the client, the City Attorney claimed there was none, although the invoices paid by the city clearly show that there was work product, even if it was not in final deliverable form that could be produced for the client to review.
It should be noted that work by the outside counsel has apparently been stopped even though there has never been an instruction by the body (there has never been a vote by the body) to cease work.
The concern of the City Council as a body may have been that the work product was not aligned with Item 3 of the instructions, but was in fact the City Attorney moving forward with Item 7 of the instructions. The review of the work products requested but not delivered to the body (City Counsel’s refusal as stated above) would have indicated which of the two items was being worked on by outside counsel. The reason this is important is due to the fact that Government Code Section 41803.5(a) states that any prosecution by the City Attorney must get authorization from the District Attorney.
There is no record of the City Attorney asking the District Attorney for authorization to prosecute the Member.
If Item 7 was not executed as instructed, it follows with the same insubordination as outlined in Items 4, 5 and 6.
So, from the California Rules of Professional Conduct for the California State Bar it states:
Rule 3-110. Failing to Act Competently.
(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
(B) For purposes of this rule, “competence” in any legal service shall mean to apply the
2) learning and skill, and
3) mental, emotional, and physical ability reasonably necessary for the performance of such service.
This appears to be violated in the fact that the directive provided by the City Council to the City Attorney through a vote of that body was either willfully ignored or not followed for in excess of nine months even though the actual time it would have taken to complete the instructions of Items 4, 5 and 6 (and potentially Item 7) were minimal. At no time has the City Council provided instructions through a vote of the body to have the City Attorney NOT complete the instructions; therefore the vote of the body has been and is being willfully ignored by the City Attorney.
Additionally, requests by the body for work product items that invoices show were produced and have been paid for were denied to the body by the City Attorney.
Not to beat a dead horse, but on that last item it appears that the City Attorney may have also
violated Rule 3-500. Communication. A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.
While the City Attorney does NOT report to me, a citizen of the community, it is my tax dollars that pay for the City Attorney’s time and charges as billed to the City of Los Alamitos. I am deeply concerned that any willful acts of ignoring the instructions of the City Council as ordered by a vote of the majority of the body reflects not only insubordination to the employer, but also is unethical for paid legal counsel.
The lack of action against the Council Member as stipulated by the instructions voted on by the body has left the Member formally accused by the City Attorney of performing criminal acts (the nine page memo). The Member has not had a chance to have his name cleared by prosecuting agencies since the City Attorney has not completed the actions she was instructed to complete. This has left the Member in a position where he has been accused of a criminal act, yet has been unable to have his day in court in order to clear his name of anything in the City Attorney’s nine page accusation.
I believe that this may violate the spirit, if not the letter, of:
Rule 5-100. Threatening Criminal, Administrative, or Disciplinary Charges.
(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
(B) As used in paragraph (A) of this rule, the term “administrative charges” means the filing or lodging of a complaint with a federal, state, or local governmental entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.
As the nine page memorandum details criminal charges against the Member, but since the City Attorney did not send these charges to the appropriate prosecution agencies as instructed, the Member has been accused of criminal wrongdoing by the City Attorney. The City Attorney has willfully failed to forward, as instructed, the charges to any agencies that can either prosecute the charges made by the City Attorney or clear the Member from the accusations, thus leaving the Member under threat for in excess of ten months without the ability to be cleared.
Based on the above I have a deep concern that the City Attorney has been unethical as defined by the California State Bar. The law firm in question is Colantuono & Levin of Los Angeles. The City Attorney to the City of Los Alamitos is Sandra J. Levin.
While I am not the client, as a member of the public for the public agency which the City Attorney works I have deep concerns that there have been multiple violations of California State Bar ethics, as well as potential violations by the City Attorney of Government Code Section 41803.5(a).
Additionally, as a member of the State Bar and an Officer of the Court, I have deep concerns that the City Attorney may have violated other ethics or laws in that she has created a nine page document that states that a member of the City Council for the City of Los Alamitos has performed criminal acts, and she has not, as an Officer of the Court or member of the State Bar, felt the need or the desire to report such criminal actions to the appropriate authorities, even if she was without the clear instructions from the City Counsel (her client) to do so.
I look forward to hearing from the State Bar as to my questions regarding the ethical lapses documented above, as well as addressing my concerns that the nine page indictment of the Member should have been sent, instruction not withstanding, to the appropriate agencies for prosecution of the alleged criminal acts.
Thank you in advance for your time and consideration.