A few days ago, the City of Malibu publicly released the official Report of an investigation that rejected the now-former City Manager’s claims that I had subjected her to unlawful harassment – which the Report explains to be a legal term of art that encompasses various forms of gender-based discrimination. As the Report expressly states at the outset:
This Report presented one issue for review: Did Mr. Silverstein mistreat Ms. Feldman because of her gender?
No. Mr. Silverstein did not mistreat 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 Interim City Attorney, which includes the following:
“The Council was advised [on Jan. 22, 2021] of my and Ms. Germano’s opinion that the Cannata letter did not allege facts that would support a claim of gender-based discrimination.”
“The Council was advised [on Jan. 22, 2021] that the disparaging comments and allegations of harassment attributed to Councilmember Silverstein, among other actions alleged in the Cannata letter, did not meet the standard for legal harassment.”
“The Council was again advised [on Jan. 29, 2021] that the Cannata letter did not allege facts that would support a claim of gender-based discrimination, as opposed to conduct that was inappropriate, harsh, or distasteful.
“The Council was advised [on Jan. 29, 2021] as to potential defenses available to the City were litigation to arise as a result of Ms. Feldman’s allegations, including the potential for filing an Anti-SLAPP motion.”
“Other considerations were also expressed to the Council [on Jan. 29, 2021] regarding potential litigation, including the requirement that Ms. Feldman would have to waive severance, her reputational damage, and the length of time necessary to prosecute an action through the judicial process.”
After City Council received the foregoing legal advice in Closed Session, the City Council voted 3-1 (without my participation because I was recused from the vote) to hire an outside labor lawyer to investigate my interactions with the now-former City Manager to determine whether I had engaged in gender-based discrimination and/or otherwise acted in a manner that constituted legal harassment. Unsurprisingly, the outside lawyer reached the same conclusion as had the other lawyers who advised the City Council in Closed Session.
While the outside lawyer did unequivocally conclude that my actions were entirely lawful, the outside lawyer volunteered the gratuitous observation that my conduct was “hostile and unprofessional.” I am unsurprised by the outside lawyer’s expert conclusion that my actions were lawful. I have known from the start that I did nothing unlawful, and I did not require the opinion of an independent employment lawyer following an investigation into my conduct to confirm that conclusion. I am surprised by the lawyer’s assertion that my conduct was hostile and unprofessional – an assertion with which I disagree.
When I was interviewed by the lawyer, it was made clear that the sole focus of the investigation was whether I had engaged in gender-based discrimination, created a hostile work environment, and/or otherwise acted in a manner that constituted legal harassment. As noted above, the lawyer concluded that my conduct was not unlawful.
I was never informed that the lawyer would be offering a gratuitous opinion about professionalism and civility. If I had been informed that the lawyer would be volunteering such an opinion, I would have both (i) objected that the lawyer lacked the expertise to offer an informed view of those subjects, which also are subjective matters for which there are no legal standards, and (ii) addressed each and every instance of allegedly unprofessional and hostile activity by placing it in the specific context of the activity of the now-former City Manager that was being addressed. I was never provided that opportunity. Had I been provided a proper opportunity to address the issues of professionalism and civility, I am confident that the outside lawyer would have reached a different conclusion.
Allegations of misconduct are easily made and often made for reasons unrelated to their merit (or lack thereof). By contrast, admissions against interest are few and far between, and are highly probative of the truth. For these reasons, the Report highlights the following admissions 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. 7
“Ms. Farrer provided further corroboration that, aside from Ms. Feldman, Mr. Silverstein did not mistreat other staff members. Notably, Ms. Farrer supported Ms. Feldman and not Mr. Silverstein. Ms. Farrer nevertheless indicated that Mr. Silverstein was polite and complimentary toward staff, including being particularly complimentary about Ms. Glaser n a council meeting.” p. 8
“While several emails reflected that Mr. Silverstein and Ms. Hogin disagreed about various aspects of the Brown Act, Ms. Hogin’s account contradicted Ms. Feldman’s complaint. Specifically, Ms. Hogin stated that she believed that Mr. Silverstein did not engage in gender-based conduct.” p.8
“[A]s with Ms. Glaser, above – Ms. Soghor specifically stated that Mr. Silverstein never said anything inappropriate or unprofessional to her. Rather, Ms. Soghor indicated that Mr. Silverstein was only ever polite to her.” p.8
Consistent with the foregoing, Malibu resident Lynn Norton noted in a Letter to the Editor of the Malibu Times:
I did a California Public Records Act request myself a few weeks ago to see two months’ worth of Silverstein’s emails with Feldman and 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 of it comes from frustration. For example, he asks a simple, reasonable question to be informed as to how the decision was made to disallow citizens from being seen at Zoom meetings, and Feldman essentially refuses to answer.
Ms. Norton also wrote:
I generally support the substance of Silverstein’s inquiries into the workings of City Hall. And I understand some of his frustration. For example, Feldman reports publicly: “Council Member Silverstein has refused to come to City Hall to review records that are not available digitally and is, instead, demanding that the city scan every document and provide it to him digitally.”
What really happened is this: Staff emails Silverstein telling him he can come in to review documents; he replies that due to COVID, he would prefer to get copies. He’s then told staff doesn’t have the resources to make copies, and he replies within the hour, “Given the limitations, please keep the material (and any other material that is added in the days to come) in a safe place, and I will make arrangements to come down to City Hall over the coming week to review the material.”
Also, it is a fact that I submitted a formal Complaint against the now-former City Manager to the Human Relations Department on Dec. 27, 2020, and the letter from the now-former City Manager’s lawyer accusing me of harassment was sent to the city three weeks later. There was no investigation of my HR Complaint. Instead, I was investigated for, among other things, filing the HR Complaint. That investigation was, itself, a form of retaliatory harassment – especially when three different attorneys representing the city advised the City Council in advance of that investigation that the now-former City Manager’s claims of harassment had no legal merit. How would it have looked if I had not filed an HR Complaint in December but had done so a few weeks after the now-former City Manager’s lawyer accused me of unlawfully harassing the now-former City Manager? Is there any doubt that my HR Complaint would have been viewed as a form of retaliatory harassment?
Although there was no investigation of the allegations in my HR Complaint, the Report of the outside lawyer rejecting the retaliatory harassment claim against me does offer the following:
[A] review of the HR Complaint reflected that Mr. Silverstein complained about Ms. Feldman for insubordination and violation of City Council Policy Nine, which mandated City services 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 information requests.
- Ms. Feldman interfered and refused to allow the senior media technician to explain to Mr. Silverstein the process for setting Outlook to automatically forward City emails to Mr. Silverstein’s personal email for recordkeeping.
- Ms. Feldman failed to institute a “litigation hold” for records that might have bearing on sworn allegations set forth in an affidavit submitted by Mr. Wagner.
As well, Mr. Silverstein stated in his HR Complaint that Ms. Feldman’s “hostility, recalcitrance, 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 reflected that his various complaints involved his ongoing conflicts with Ms. Feldman over her performance and City business. In other words, they did not involve her gender.
I am pleased that this chapter of Malibu politics has now ended. Perhaps we can now get on with hiring a stellar City Manager who understands and appreciates the importance of Malibu’s Vision Statement and Mission Statement, which reflect the overriding importance to the community of retaining the rural nature of this coastal village.
Bruce Silverstein, Malibu City Councilmember