City attorney Scheer reinstated

Lolita Harper

Council members voted narrowly Friday morning to immediately

reinstate City Atty. Jerry Scheer, who had been placed on paid

administrative leave three weeks ago while the council conducted a

more thorough employee evaluation.

It is unclear whether their action will mark an end to the city’s

recent legal quandary.

The council’s closed vote caps off a tumultuous four weeks for the

city’s legal department, during which the council voted to halt all

business with an outside legal firm, audit the City Attorney’s

Office, place its top two attorneys on paid administrative leave, set

up a subcommittee to further review their performance, reinstate one

-- and three weeks later -- the other.

During the closed session, council members voted 3 to 2 to rescind

Scheer’s paid administrative leave and immediately reinstate him as

city attorney. Councilman Gary Monahan and Councilwoman Karen

Robinson dissented.

The content of Friday’s closed session, like the previous four on

the same subject, is considered a personnel matter by city officials

and is therefore classified. State law mandates local leaders invite

the public to special proceedings, open the meeting in a public forum

and then adjourn to “closed session,” in which council members

discuss sensitive topics among themselves. Any actions taken by the

council as a result of the private deliberations are then reported

back in an open forum.

Without commenting on the details of the private discussion,

Monahan said he had concerns about the City Attorney’s Office and he

thought administrative leave was the “correct action” for the council

to take. Although he found himself on the losing end of a close vote,

Monahan said he would continue to do his best to ensure the City

Attorney’s Office functions at its best level for the residents.

“It’s just like any other 3 to 2 vote,” he said. “I lost and I’ll

make the best of it.”

Councilman Chris Steel said he was pleased with the vote, which he

deemed long overdue. Steel said he was never completely comfortable

placing Scheer on administrative leave and consistently communicated

his hesitation to his council colleagues over the past few weeks. The

first-term councilman also said he regretted ever casting a vote to

remove Scheer from the office, saying in hindsight that the move was

much too harsh.

“I was naive,” Steel said. “I didn’t realize the full consequences

of administrative leave.”

On Sept. 9, the council unanimously voted to remove Scheer and

Asst. City Atty. Tom Wood from their offices for at least three weeks

so a subcommittee could conduct a “more detailed review” of their

performance. Wood was reinstated Sept. 16.

Greg Petersen, a private attorney representing Scheer during the

public comment portion of the closed-session meeting Friday morning,

said one consequence of the council’s action has been serious health

complications for the 63-year-old city attorney.

Scheer has suffered health complications from the stress and

“stigma” of being placed on leave and remains at home on heavy

medication, Petersen said.

Steel said Friday he was concerned about further legal action from

Peterson on Scheer’s behalf, judging from the attorney’s public

comments at the past two special meetings.

Before the council adjourned to closed session at Monday’s special

meeting on the matter, Peterson alleged a laundry list of wrongdoings

on the city’s behalf and threatened legal action. Peterson claimed

city officials had “directed statements” to both him and Scheer

suggesting the city attorney “leave employment of the city.”

He also said the council was remiss in continuing to conduct

closed sessions under the guise of an ordinary performance evaluation

when it was obvious the situation was anything but commonplace.

“This is not a review or a performance evaluation. Under the

municipal code, my client has been suspended and there is a specific

procedure set and forth, which you are required to do in this

situation, which you haven’t followed,” Peterson said.

Peterson said the “review” had evolved into an investigation of

alleged wrongdoing and as a result, Scheer was entitled to be

notified of each and every meeting on the matter so he could exercise

his right to request an open session.

Terry Francke, general counsel for the California First Amendment

Coalition, said the closed-session meetings held after Scheer was

already on administrative leave were clearly regarding more than a

routine performance evaluation.

“When a government agency puts an employee on administrative leave

-- pending whatever kind of examination process they want to call it

-- what that says is there are some complaints or some seriously

wrong allegations that need to be resolved without that employee

being there,” Francke said. “It signals the council’s sense that

something was wrong and that the city attorney might well be at

fault.”

Steve Hayman, the city’s director of administrative services, said

city officials never considered Scheer’s leave of absence as a

disciplinary action. Administrative leave is a “fairly routine”

procedure used by employers to determine whether disciplinary action

is necessary. It is unfair to assume any wrongdoing as a result, he

said.

The City Council’s vote to reinstate Scheer should resolve any

questions of misconduct, officials said.

City officials refused to share copies of a grievance filed

against Scheer by a fellow colleague last year, nor would they

disclose the content of the allegations. The formal complaint is

considered a personnel matter and therefore not public record,

officials said.

Steel said he discounted the allegations of impropriety outlined

in the grievance -- which was part of the material he reviewed in the

past three weeks -- because he felt Scheer had been completely

exonerated during due process. While Steel considered the allegations

ancient history, he sensed Scheer’s recent leave of absence was

motivated by issues left unresolved from the in-house complaint.

“I couldn’t find a single impropriety and I thought we were headed

down the wrong track,” Steel said.

Scheer has been with the City Attorney’s Office for almost 16

years, providing legal services to the City Council, the Planning

Commission, the Costa Mesa Redevelopment Agency and city departments.

Scheer and Woods provide legal counsel and advice during all official

meetings and study sessions, and are responsible for the preparation

of ordinances, resolutions, contracts and agreements, officials said.

Counsel also interprets and applies local, state and federal laws and

conducts and monitors litigation.

Councilwoman Libby Cowan, who was assigned to a special

subcommittee -- along with Councilwoman Karen Robinson -- to further

scrutinize Scheer’s performance, refused to comment except to say

that she expects Scheer to return to work.

Steel said he was doubtful.

Possible litigation aside, two actions stemming from the initial

performance evaluation of the legal administrators still remain: the

unfinished audit of the City Attorney’s Office and the city’s

prohibition from using Costa Mesa-based law firm Murtaugh, Miller,

Meyer & Nelson, which has frequently defended Costa Mesa in

employment litigation suits.

Hayman said Friday he had not received any direction from council

members about those issues.

* LOLITA HARPER covers Costa Mesa. She may be reached at (949)

574-4275 or by e-mail at [email protected].