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 lolita.harper@latimes.com.
All the latest on Orange County from Orange County.
Get our free TimesOC newsletter.
You may occasionally receive promotional content from the Daily Pilot.