A few days ago, the city of Malibu released the official report of an investigation that dismissed the former city manager’s claims that I subjected her to unlawful harassment – which the report explains as a legal term that encompasses various forms of discrimination based on sex. As the report expressly states at the outset:
This report presented a question for consideration: Did Mr. Silverstein abuse Ms. Feldman because of her gender?
No. Mr. Silverstein did not abuse Ms. Feldman because of her gender. Mr. Silverstein denied engaging in any conduct because of Ms. Feldman’s gender, and the evidence supported his account.
The city also publicly released a copy of a memorandum to the city council from the acting city attorney, which includes the following:
“The Council has been advised [on Jan. 22, 2021] in my opinion and that of Ms. Germano that the letter from Cannata does not allege facts which would support an allegation of discrimination based on sex.
“The Council has been advised [on Jan. 22, 2021] that the derogatory comments and allegations of harassment attributed to council member Silverstein, among other actions alleged in Cannata’s letter, did not meet the legal harassment standard.
“The Board has again been advised [on Jan. 29, 2021] that Cannata’s letter does not allege facts that would support a claim of gender discrimination, as opposed to inappropriate, harsh or unpleasant conduct.
“The Council has been advised [on Jan. 29, 2021] as to the potential defenses available to the City should litigation arise as a result of Ms. Feldman’s allegations, including the ability to file an anti-SLAPP petition.
“Other considerations were also expressed in the Council [on Jan. 29, 2021] regarding potential litigation, including the requirement that Ms. Feldman should waive severance pay, damage to her reputation, and the time required to pursue an action through the legal process.
After City Council received the aforementioned legal opinion in camera, City Council voted 3 to 1 (without my participation because I was recused from the vote) to hire an outside labor lawyer to investigate my interactions. with the former city manager to determine if I had discriminated against on the basis of gender and/or if I had acted in a way that constituted legal harassment. Unsurprisingly, the outside lawyer came to the same conclusion as the other lawyers who advised the city council behind closed doors.
Although outside counsel unequivocally concluded that my actions were entirely legal, outside counsel willingly made the gratuitous observation that my conduct was “hostile and unprofessional.” I am not surprised by the outside counsel’s expert conclusion that my actions were legal. I know from the start that I did nothing illegal and I did not need the opinion of an independent labor lawyer following an investigation into my conduct to confirm this conclusion. . I am surprised by the attorney’s assertion that my conduct was hostile and unprofessional – an assertion with which I disagree.
When I was questioned by the attorney, it was clarified that the sole purpose of the investigation was to find out if I had discriminated on the basis of gender, created a hostile work environment and/or acted as in a manner that constituted legal harassment. As stated above, the attorney concluded that my conduct was not unlawful.
I was never informed that the lawyer would offer a free opinion on professionalism and civility. If I had been informed that the lawyer would voluntarily give such an opinion, I would have both (i) objected that the lawyer did not have the expertise to offer an informed point of view on these subjects, which are also subjective issues for which there are no legal standards, and (ii) addressed each instance of allegedly unprofessional and hostile activity by placing it in the specific context of the activity of the former city manager who was in causes. I never had this opportunity. Had I had the opportunity to address the issues of professionalism and courtesy, I am sure outside counsel would have come to a different conclusion.
Allegations of misconduct are easy to make and often made for reasons unrelated to their merit (or lack thereof). On the other hand, confessions against interest are rare and are very probative of the truth. For these reasons, the Report highlights the following confessions against interest, which are among the few “facts” reported by the outside lawyer:
“Ms. Glaser specifically stated that Mr. Silverstein never said anything inappropriate or unprofessional to her. p. seven
“Ms. Farrer provided additional corroboration that, aside from Ms. Feldman, Mr. Silverstein did not mistreat any other staff members. Notably, Ms. Farrer supported Ms. Feldman and not Mr. Silverstein. Ms. Farrer nonetheless indicated that Mr. Silverstein was polite and complimentary to the staff, especially regarding the board meeting of Ms. Glaser na p.8
“While several emails indicated that Mr. Silverstein and Ms. Hogin disagreed on various aspects of the Brown Act, Ms. Hogin’s account contradicted Ms. Feldman’s complaint. Specifically, Ms. Hogin testified that she believed that Mr. Silverstein had not engaged in conduct based on gender. p.8
“[A]s with Ms Glaser, above – Ms Soghor specifically said Mr Silverstein never said anything inappropriate or unprofessional to her. On the contrary, Ms. Soghor indicated that Mr. Silverstein was never polite to her. p.8
Consistent with the above, Malibu resident Lynn Norton noted in a letter to the editor of the Malibu Times:
A few weeks ago, I myself made a request under the California Public Records Act to see two months worth of emails from Silverstein with Feldman and his staff. And I read them, so I have an informed opinion of what’s going on.
Silverstein’s emails with staff are gracious and grateful; his emails with Feldman are intense. Some of that intensity comes from Silverstein’s unnecessarily aggressive style; some comes from frustration. For example, he asks a simple and reasonable question to be informed of how the decision was made to ban citizens from being seen in Zoom meetings, and Feldman essentially refuses to answer.
Ms Norton also wrote:
I generally support the substance of Silverstein’s investigations into the operation of City Hall. And I understand some of his frustration. For example, Feldman publicly reports, “Councilman Silverstein refused to come to City Hall to review records that are not available digitally and instead requests that the city scan each document and provide it to him in digital.
To read the full letter, visit malibutimes.com.
What actually happened is this: staff email Silverstein saying he can come and review documents; he replies that due to COVID he would prefer to get copies. He is then told that the staff does not have the resources to make copies, and he replies within the hour: “Given the limitations, please keep the material (and any other material added in the coming days) in a safe place, and I will make arrangements to go to City Hall during the coming week to examine the material.
Also, it is a fact that I filed a formal complaint against the former city manager in the human relations department on December 27, 2020, and the letter from the former city manager’s lawyer accusing me of harassment was sent to town three weeks later. There was no investigation into my HR complaint. Instead, I was investigated for, among other things, filing the HR complaint. This investigation was itself a form of retaliatory harassment – particularly when three different attorneys representing the city informed the city council prior to this investigation that the former city manager’s harassment allegations had no legal basis. What would it have been like if I hadn’t filed an HR complaint in December, but had done so a few weeks after the former city manager’s lawyer accused me of harassing illegally the former city manager? Is there any doubt that my HR complaint would have been considered a form of retaliatory harassment?
Although there was no investigation into the allegations in my HR complaint, the outside counsel’s report dismissing the retaliatory harassment complaint against me offers the following:[A] A review of the HR complaint found that Mr Silverstein had complained about Ms Feldman for insubordination and breaching City Council Policy 9, which required city services to be administered with friendliness, firmness and fairness to all. Among other things, Mr. Silverstein’s letter reflected his complaints that:
- Ms. Feldman refused to speak with Mr. Silverstein.
- Ms. Feldman refused to answer Mr. Silverstein’s questions and requests.
- Ms. Feldman failed and refused to honor Mr. Silverstein’s requests for information.
- Ms. Feldman intervened and refused to allow the senior media technician to explain to Mr. Silverstein the process of setting up Outlook to automatically forward city emails to Mr. Silverstein’s personal email for record keeping.
- Ms. Feldman failed to institute a “suspension of litigation” for records that could impact sworn allegations set out in an affidavit submitted by Mr. Wagner.
Additionally, Mr. Silverstein stated in his HR complaint that[traduction]Ms. Feldman’s “hostility, reluctance, impertinence and insubordination” was unlike anything he had ever experienced with a managerial employee. Regardless of the merits of Mr. Silverstein’s underlying complaints, this evidence indicated that his various complaints related to his ongoing conflicts with Ms. Feldman over his performance and City business. In other words, they didn’t involve her gender.
I’m glad this chapter of Malibu politics is now over. Perhaps we can now hire a stellar city manager who understands and appreciates the importance of Malibu’s vision statement and mission statement, which reflect the paramount importance to the community of conserving the rural nature of this coastal village.
Bruce Silverstein, Malibu