Who Pays for Errors by a City Attorney? Are There Upcoming Lessons for Ventura and Other Cities in California?

Well, that advice paid off for me over the years although it would appear that the City of Ventura needs to have some coaching from that old mentor of mine. The subject at issue is their rather recent hire for Ventura City Attorney, Ariel Calonne. In a June 26, 2007 press release, then Mayor Carl Moorhouse proudly announced, "After a lengthy search that attracted numerous, well qualified candidates, the Ventura City Council is extremely pleased that Mr. Calonne will be bringing his legal expertise to our City." Morehouse went on to say, "The intensive search process included a peer review panel of attorneys within our community, as well as panel interviews with our City Council and City Executive Team. Mr. Calonne brings a wealth of experience and leadership in areas of environmental and land use issues, which will be particularly valuable in our city's journey towards becoming a national model of Smart Growth."

Wow, we’re thinking, this guy Calonne must be good. Moreover, Morehouse said that Calonne was “vetted” by his peers and panel interviews with the City Council and something called the “Executive Team”. If Calonne passed all that review he must be A#1, right?

Well, it turns out that our new City Attorney Calonne comes to us serving some sort of probation meted out by the courts in his previous city of employment, Boulder, Colorado. That’s right; Ariel Calonne may actually have a Boulder-based probation officer! That seems like a unique albeit dubious distinction for a City Attorney, don’t you think? That wouldn’t look good on one’s resume, would it?

Thankfully unaccustomed to such matters, I had to do some research on what probation issued as a result of “deferred prosecution” meant. All these unfamiliar words, probation, deferred prosecution… my head was whirling. My public service of 26 years hadn’t accustomed me to such delicious irony in an employment situation.

What’s so hard about employers using the Internet?

From a rather easy search of the Internet, it turns out that Ariel Calonne has on the public record quite an interesting, thought provoking as well as worrisome employment history as a City Attorney. The trail begins with a stint as City Attorney in the City of Palo Alto.

While City Attorney in Palo Alto, Calonne won an award for his apparent knowledge of a well known public open meeting law, the Brown Act. However, it turns out that Calonne was apparently involved in a fairly major public dust-up involving the City’s performance in that very subject -- openness in government. The result was a lawsuit with the City of Palo Alto as defendant and the San Jose Mercury newspaper and the Palo Alto Weekly newspaper as plaintiffs. In a July 4, 2003 issue, the Palo Alto Weekly captured the story perhaps best.

… starting in October of last year, Calonne was thrown under a harsh spotlight. The complex tale -- which some are speculating led to Calonne's abrupt departure -- began in October when Councilwoman Nancy Lytle made a comment criticizing Calonne's legal advice at a council meeting.

Before Calonne “split” Palo Alto -- as we used to say in the 60s -- to become the City Attorney in Boulder, Colorado, the City of Palo Alto had to settle the lawsuit with the two newspapers out of court to the tune of more than $10,000. Some going away gift, huh?

Before we leave the Palo Alto caper, an interesting outcome to the Ariel Calonne / City Council exchange was reported in an April, 2003 issue of Metro which is described as “Silicon Valley’s Weekly Newspaper”:

The words "getting a facial" may have a whole new meaning in Palo Alto now that the City Council is considering rules of conduct requiring politically correct physical movements of council members. "Do not use body language or other forms of non-verbal methods of expressing disagreement or disgust," including "personal, abusive, disparaging or angry comments, name-calling or labeling," reads one proposed protocol. "Treat others as you would like to be treated,” reads another. The new rules have fueled criticism that the peninsula burg is quickly devolving into a civic version of “Jackass, the Movie” following a series of petty, yet all-too-nasty conflicts. There was the furious email penned by City Manager Ariel Calonne over a supposed public slighting by Councilmember Nancy Lytle; and then Councilmember Jack Morton accusing three colleagues--Lytle, Yoriko Kishimoto and Hillary Freeman--of serious criminal wrongdoing; then two separate lawsuits charging the council with violating open meeting laws and demanding that hitherto private emails be shared.

New Motto: “Be The Least You Can Be”

Wow, now there’s something to aspire to -- become known as a civic version of “Jackass the Movie”! Maybe Ventura City Hall is well on its way to that title too. But if the Ventura City Council would decide to follow the guide of Palo Alto, would we need to also employ a “Non-verbal Communication Violation Officer”? We don’t even have enough money in the city budget these days for our regular police protection but maybe with some direction from the City Attorney, we could get some ideas how a City goes about administering a “non-verbal communication” code. If anyone should know, it would be Ariel Calonne, right? I mean, he was there and in the middle of it.

The “If You Haven’t Ever Been On Probation, How Can You Know Anything About It” School Of Thought

Well, let’s turn our attention to Calonne’s stint as City Attorney in Boulder, Colorado. Remember it was in Boulder that Calonne was given probation as a result of a finding of “deferred prosecution” by the court. Looking up the definition of “deferred prosecution” I find that it is described thusly:

Deferred prosecution: An arrangement made between the District Attorney and defendant before trial halting the prosecution of a defendant for up to two years on the condition that he or she successfully meets conditions of probation.

But maybe it was explained best by Ariel Calonne’s attorney in this City of Boulder matter, Steve Louth, when he said “Calonne is scheduled to receive a yearlong deferred prosecution, meaning that if he stays out of trouble, the charges will be wiped from his record.” That statement was from an October 17, 2007 article in Boulder’s Scripps Howard newspaper, The Daily Camera. The article went on to explain Ariel Calonne’s June, 2007 behavior that had Calonne in court by stating:

Former Boulder City Attorney Ariel Calonne is expected to make a deal with prosecutors Thursday that will clear his record of charges stemming from a falling-out with a neighbor over the summer. Calonne was cited in June for misdemeanor harassment and criminal mischief after his neighbor, Beverly Potter, called police to report he threatened to "kick her ass" if she touched his dog. He also was accused of kicking two sprinkler heads in Potter's yard when she turned them on to get his dog off her property in the 3200 block of 11th Street.

The article went further to say, “Included in his (Calonne’s) punishment is a promise to have no contact with Potter, and to write an apology letter to the community.”

Oh, and one more thing, the reporter made comment in the article that, “Calonne sold his Newlands neighborhood home in August for $1,162,500, according to property records. He had lived there since 2004, when he paid $895,000 for the home.” Using these figures my math has Calonne making a gross profit on his Boulder house of $267,500.

“Nice going” we’re tempted to say, until we remember that the City of Ventura gave Calonne some sort of housing supplement as part of his more than $200,000 annual pay package. Golly, why was that? Maybe it was City Manager Rick Cole whispering into Calonne’s ear that he got the City to put up money to buy him a house when he moved here three years ago so Ariel, why not take advantage of the generosity of the City of Ventura? We all know Ventura has money to burn, right?

While I was searching the Internet for information on Calonne, I ran across a piece written in 2005 by columnist Clint Talbot at Boulder’s The Daily Camera. Talbot was asking why after two years “on the job” and in spite of the fact that Calonne was the highest paid city attorney “along the front range including Denver” -- a city 6 times the size of Boulder -- “Calonne has yet to earn either a raise or a bonus?”

Boulder journalist Clint Talbot explained in his article that he chased around for information about how the City of Boulder saw Calonne’s performance and finally got information from the city human resource department. Talbot reported that “The city council said Calonne's professional competence "slightly exceeds" that of a standard performer. But Talbot went on to state that in five of nine categories, City Council members rated Calonne's performance as "slightly below standard."

A “quart low”

So, Calonne’s overall rating indicates that he “slightly exceeds” a standard performer but in more than half of the rating factors he was rated “slightly below standard”? What is “slightly below standard” I ask myself. I’m thinking that if a grade of “C” is standard, is a “D” slightly below standard or is it a “D+” or maybe a “C-“? In any event, is this the stuff which warrants Mayor Carl Morehouse’s laudatory comments at the beginning of this article? I think not…

Hey, We’re Going To Hire Him Anyway So Why Check?

Looking at this further, another article dated June 30, 2007, in the Daily Camera states, “It's not clear whether being cited for two misdemeanors could have any impact on Calonne's legal career. Although he has accepted a new job in California, the City Council there hasn't yet confirmed his contract, and he hasn't resigned from his Boulder post. The article goes on to say, “Carl Morehouse, Ventura's mayor, didn't return a call Friday seeking comment about Calonne's brush with the law.”

So Carl Morehouse didn’t return the call from the Boulder newspaper? Wouldn’t you think that he’d be interested in finding out what the future city attorney for Ventura had done to warrant this obvious legal and public attention? This is the same Carl Morehouse who along with his other two city council cohorts Christy Weir and Bill Fulton appealed to the Ventura electorate last November to “give them a chance to finish” what they had started. Hey, I’ll vote for that. Now at least we know who to hold accountable for these fiascos, don’t we?

On that matter of the City Attorney Ariel Calonne being on probation until sometime this fall, isn’t that special? How does that work? Does he have to check in with a probation officer? Remember Calonne’s Boulder attorney said if he “stayed out of trouble the charges would be wiped from his record.” For some of us in Ventura, Calonne isn’t doing a good job of keeping us out of trouble. Does that count, Mr. Probation Officer?

Change of Venue

Many Ventura citizens are going to remember his record here which has already had a questionable start. It is on the advice of Calonne that has the Ventura City Council believing that their “fee” for the hotly opposed “call 911” tax is a fee, and not a tax. As I look at his record, Calonne may know something about open meeting law but it seems clear that he has no background in tax law. As I talk to top tax attorneys and tax policy CPA’s, they are unequivocal that this Ventura proposal is in fact a “tax” and not a fee.

But based on the City Council’s typical stance of “father knows best and if-he-doesn’t-pretend-he-does”, the 911 issue will have to be taken to court to prove they – and that is to say, us -- are wrong. And when it does go to court, will “slightly better than average” Ariel Calonne represent us? It seems like we get stuck having to pay for all their mistakes. Like I say, “who’s watching the store over at Ventura City Hall”? We can and should do better for ourselves… Let’s hope that other cities and counties in the state don’t have to suffer because of problems with performance in their civil servants.

Frank Pecarich lives in Ventura County and has followed California politics and public policy for over 40 years.