By: KEITH GRANT
Ruling finds 3 city posts illegal
The city's director of operations post and two others were found to be illegal by a state Supreme Court judge in a ruling handed down last week.
Judge Ira Warshawsky wrote that "the position of Director of Operations, Executive Assistant to Director of Operations and Special Projects Manager are declared to be unlawful and in violation of law."
The suit targeted the positions held by Eugene Cammarato, executive assistant Michelle Meiselman and special projects manager Robert Piazza. Warshawsky's ruling bars the city from continuing the payment of salaries for those positions.
City Manager Bruce Nyman said city officials could not comment on the ruling, referring questions to attorney A. Thomas Levin, who said the city would file an appeal.
Regardless of the outcome, city officials say that none of the three employees affected will actually miss a day of work. Meiselman and Piazza, sources said, will be moved into other positions, and the city already has put into motion steps to legalize the director of operations position by amending the city charter. At the City Council meeting Tuesday night, it was announced that a public hearing will be held Tuesday, April 17 to consider a law amending the 80-year-old charter to include a director of operations under the provision creating city officers.
That action is being pursued despite Levin saying the city would appeal last week's ruling. The city has argued that the position held by Cammarato was not one of a city officer, though the judge ruled otherwise, noting Cammarato's authority to sign contracts, hire employees and take over management of the city when the city manager is away.
Filed in October by five local residents, the suit charged that Cammarato was illegally appointed director of operations, and that he and his two subordinates should be removed from their positions. It also demanded the return of all cash paid in salaries to the three employees since the posts were created in mid-1999. Judge Warshawsky has yet to make a ruling on that matter.
The suit argued that the city charter does not allow for these government positions and that they can only be created by law or ordinance. Cammarato, formerly assistant to the city manager, was appointed to his current $98,000-per- year post shortly before the retirement of former City Manager Edwin Eaton. Meiselman and Piazza were subsequently appointed to their posts.
Steven Lee, a Long Beach-based lawyer for the plaintiffs, argued that the city can hire low-level employees, but this action represented a major department created by the City Council, one that was under only the city manager.
"Section 8 of the [city] charter enumerates city positions," Lee said. "It says the council can appoint, but only by law. The city council is supposed to pass a law or an ordinance to create them. After a public notice, and a public hearing and an opportunity for the citizens to come to the council meeting." Such action was pursued in June 2000 but subsequently withdrawn because of a lack of a time between publication and the hearing, and the city then decided to inquire into a more complete update of the city charter.
Named as defendants in the suit were the three employees whose posts were challenged, the City of Long Beach, City Manager Bruce Nyman, all five members of the City Council, and city Treasurer Catherine Pirrone. The suit stated that if the employees in the three targeted positions are unable to pay back the money they have earned, then the council members should dip into their own wallets to repay the city bank account.
Bringing the suit against the city were Carl Charleson, Jane Novorro, Denise Ford, Mona Goodman and Laurie Klein. Goodman said she was "thrilled with the judge's decision and his clarity of vision."
"To me it's a very black and white case," Goodman said.
Levin, though, feels the judge's decisions were a little gray in some areas.
"Basically, we thought the decision was fairly incredible," Levin said. "We feel he overlooked a lot of the facts."
Levin feels that Warshawsky drew conclusions about the director of operations post based on the proposals for the position that the city did not adopt last summer.
"The job he holds is different from the one they were going to create," Levin said. Regarding Piazza, Levin said the judge couldn't differentiate between the special project manager's job and what Cammarato does, "so he said you can't have either."
The decision, according to Levin, establishes Warshawsky's reasoning and conclusions, but at the moment has no operative effect. The parties have to submit a proposed judgment to the court, Levin said. Warshawsky will then either select one, or create his own.
"Once that's done, then it takes effect," Levin said. Such a judgment could take some time, he added. A preliminary hearing was scheduled for Thursday, April 5.
In the meantime, the city is responding to the ruling by doing some shuffling within City Hall. A city official who asked to go unnamed said Meiselman, an attorney, would be moved into the corporation counsel's office, where there is a vacancy. Piazza, who oversaw all of the city's public works projects and infrastructure upgrades, will work out of the highway department.
"They'll still be doing what they're doing," the official said. The official believes that these steps, though, will be enough to appease Warshawsky at the judgment hearing.
Meanwhile, the process of amending the charter could take as long as a year, according to City Manager Nyman. He called the charter "a mess."
"It hasn't really changed since the '50s. You get a headache reading it."
At the City Council meeting Tuesday night, President Joel Crystal said, "This will be a formidable task."
Excerpts from Supreme Court ruling
"In determining the motions ... the court is called upon to determine the issue of whether the office of Director of Operations, or Special Projects Manager, and/or Executive Assistant to Director of Operations is indeed an office of the City of Long Beach or is employment in its civil service. ...
"What is known about the job of Director of Operations is gleaned from its descriptions in the proposed Resolution to amend the Charter, from the records of budget hearings, from documents such as the Annual Budget cover sheet, and Resolutions of the Council over the past two years.
"What can be concluded from these exhibits is that the City Manager, defendant Nyman, is the highest officer in the City and that the Director of Operations works directly under him. When he is away, the Director of Operations is the Acting City Manager, and he has operated in that capacity. He formerly functioned as a department head and he now oversees all department heads. He hires people; he has hired a lawyer for his department and he hires young people for summer positions.
"He, according to the aborted Resolution to amend the Charter to create his office, may sign payment vouchers and purchase orders, and the record shows that he signs Resolutions, inter alia, authorizing the release of funds for an agreement with the County to provide bus service, to obtain Federal grants for capital and operating expenses of mass transit, and to plan a hearing on proposals from developers to develop an unimproved site within the City....
"Yes, the Director of Operations must answer to someone else, the City Manager. Most officers are under the supervision and control of someone else, not withstanding their authority and discretionary capability. Even though the City Manager or Council may have final say in most matters, the City Manager has made it plain that the Director of Operations is trusted to perform many tasks on his behalf. This court draws no conclusions as to whether the Director of Operations exercises 'sovereign powers' other than his commitment to certain actions outlined above. Apparently he is not possessed of the official seal, not is it known whether other officers, by contrast, have filed a bond, and the term of his appointment is indeterminate under either scenario. It may be safely concluded however that his continued service is at the pleasure of the City Manager. ...
"To the view of this court, [Cammarato and Piazza] are more than mere appointments to employment in the City of Long Beach classified civil service. Their position cannot be created and filled by the mere passage of a budget providing for an accepted salary. ...
"The conclusion, then, is easily reached that the offices of Director of Operations, Special Projects Manager and Executive Assistant to Director of Operations are each offices of the City of Long Beach."
