March 9, 2022 - From the March, 2022 issue

Candidate for LA City Attorney Kevin James’ Approach to Homelessness & Public Corruption

With ongoing public corruption cases impacting business at LA City Hall as well as several pending federal lawsuits affecting the city’s approach to homelessness, TPR spoke with Kevin James, former president of the LA City Board of Public Works to afford him the opportunity to elaborate on his motivations and priorities for running to be LA’s next City Attorney. James illuminates the governance challenges undermining a comprehensive regional approach to homelessness and shares his strategy for harnessing litigation in federal courts to compel a countywide standard for regulating encampments in the public right of way.


Kevin James

“When I watched the city deal with a growing homelessness crisis during those years at City Hall, I realized that the City Attorney's office is the most significant office in dealing with homelessness because so many of the main issues that we're dealing with are handled in the courts.”

Kevin James, after 7 years as president of the City of LA’s Board of Public Works, begin by sharing with our readers your motivations for running to be the next LA City Attorney.

Kevin James: Soon after I started at the Board of Public Works, I realized the significance beyond what I had already understood of the City Attorney's office. When I watched the city deal with a growing homelessness crisis during those years at City Hall, I realized that the City Attorney's office is the most significant office in dealing with homelessness because so many of the main issues that we're dealing with are handled in the courts. That's no choice of the city’s per se as the city finds itself as a recipient of lawsuits against it based on various ordinances that have existed in the city. As the charter’s authorized liaison to the courts, the City Attorney's office is critically important.

When I started looking at the value of the City Attorney's office, I recognized that since city councils can only bind their own municipality, to get to a regional solution, you have to do it through the state legislature or through the courts.  Rather than waiting for legislation from the city council that can only bind the City of LA or for a state legislature that has proven time and time again that it can’t deliver legislation that brings the entire state into the solution, with the city attorney through the courts, you end up with a resolution that would be binding on all of the cities in LA County.

The City Attorney in Los Angeles is the most important office in the entire region for utilizing the process of the courts to bring all other cities into the process of solving homelessness.

Elaborate on this last statement and on the main responsibilities of Los Angeles’ City Attorney?

The LA City Attorney’s office certainly would be one of the largest law firms in the city, but it’s much more complicated than just the management of a law firm. This is a municipal law office, but it is also a law office that writes all of the ordinances that are passed by the city council, and it also has a prosecutorial arm that's about 35 percent of the office, both in terms of personnel and budget. Law firms do not prosecute criminal cases like the City Attorney does.

The City Attorney’s office criminal branch is limited in jurisdiction to just misdemeanors, but that is also an interesting element in the current environment. The District Attorney will send ‘wobblers,’ as they call them, to be charged or reviewed as a misdemeanor rather than as a felony. This is important today, perhaps more than ever, because our City Attorney has said that many more of the cases that may have been felonies in prior administrations may end up as misdemeanors that relate to the City of Los Angeles. My concern with the wobbler cases is if the volume of those goes up significantly, we're going to need some assistance and resources from the county and from the District Attorney's office There are a number of ways to manage the caseload, but I want people to know that we may have a shift of caseload from the DA’s office to the City Attorney's office and that's something we're going to need to manage.

The other element of the city attorney's office is the civil branch, which defends the city in all the municipal cases that you expect, like slip and fall cases because of our sidewalks, a fallen tree in the public right of way. Those standard, litigation-type cases are defended by the City Attorney's office. We also have the responsibility to defend every city department including the Los Angeles Police Department and the proprietary departments like the Department of Water and Power, the Port of LA, and the airport.

With homelessness, while it does cross into the criminal branch because you can have illegal activity, homelessness policy that's tested in the courts is handled by the Civil branch, and the City Attorney's office makes decisions regarding settlement of those cases. When the city settles a case, it only binds itself, but if we were to take a case to trial and get a court ruling, that ruling would be binding on everybody in the region.

Does the City Attorney's office presently have the necessary resources to take on the challenges you have just enumerated?

No, I don't think so. I'm the only candidate with the political experience of working with the City Council, the city's budget team, and the City Administrative Officer as the leader of a department. Those relationships are critical for budgeting purposes. I have been through the city budgeting process seven times when I ran the second largest city department at the Board of Public Works with more than 5,000 employees. That kind of budget experience is critical in a transition into a new administration at the City Attorney's office, which has about 1,000 employees and a budget to manage.

Our resources are in the hands of the City Council and the Mayor. There are a lot of moving parts and one thing that the City Council and the Mayor's office will want to see is the opportunity for a new level of success in the way that we manage our public right of way in this homelessness crisis. That platform finds support across the political spectrum.

Our resources are provided to us by other independent elected offices. There is an important element of advocacy for the resources that the City Attorney's office needs. It's important for the City Attorney to be able to demonstrate to the City Council and to the Mayor that our priorities are a reflection of their priorities because they provide us with the resources.

There are a number of ways to demonstrate the value of providing additional funds to the City Attorney's office. One is by defending a number of our complex litigation cases that are brought against the city rather than settling so many of them. That way, we have the opportunity to save money at the end of the day. When you take some cases to trial, you're going to win some, and you're also sending the message that if you sue the city of Los Angeles, we're not going to roll over and be a settlement bank, which is the reputation of the city today.

We're going to defend the city of Los Angeles. If we win those cases, they also don't get their attorney’s fees. So, that changes the playbook because people that normally might be excited about suing the city will recognize that there's real risk in deciding to do so.

Elaborate on the policy impact of court cases such as the Martin v. Boise case on L.A. City’s and the region’s ability to address homelessness, and how you would litigate regulation of the public right of way?

The Boise case is incredibly illustrative for me because it exists in promoting and explaining my platform. Before Boise, my platform of demonstrating how one court case can create policy for an entire region was harder to explain.

The Boise case comes from Boise, Idaho. It’s in another state, but it’s part of the Ninth Circuit, which is the US Court of Appeals that manages the nine western States. It’s the federal courts above the district court, and to appeal from there, a case would go to the US Supreme Court.

The city of Boise was sued by a group of plaintiffs affected by an ordinance that would not allow people to sit, sleep, or lie on the sidewalk in the public right of way. There was a group of people that were unhoused that were having to sleep on the sidewalk, and the city of Boise used their existing ordinance to force them to move and to essentially charge them with the violation of that ordinance.

The plaintiffs sued, and the city of Boise could have just settled the case, like Los Angeles always does, and done whatever the plaintiffs would agree with to drop the lawsuit. In that case, the outcome would only have affected the city of Boise because they were the only defendant. But the city of Boise took the case to trial at the district court level and won, and it was appealed to the Ninth Circuit.

Based on the Eighth Amendment on cruel and unusual punishment, the Court made the following ruling. First, the Ninth Circuit said that it is cruel and unusual punishment to preclude someone from doing what is a natural bodily function. You have to eat, sleep, and use the restroom. You cannot preclude someone from doing that in the public right of way unless the municipality can first make a reasonable offer of shelter. 

So, that is now the law of the land for everybody in the Western United States, including California. In every city in the state, before you can move someone from sleeping on the sidewalk, you have to make an offer of reasonable shelter. That ruling dictated the way the City of Los Angeles handled the Echo Park Lake issue and the Venice boardwalk because it is in the Ninth Circuit.

Now, that's only one part of the equation for our homelessness crisis. The second very important part is personal property that obstructs the public right of way. Unhoused people have their belongings with them. The Boise case expressly and specifically did not make a ruling on personal property in the public right of way because it wasn't an issue in the case. They left that to the municipalities.

Now, we need to resolve the other large part of this very complicated equation. That's the ruling where we need uniformity in LA County. I actually saw this happen with a reporter on the Venice boardwalk back in Spring 2021. We were up near the border line between Venice and the City of Santa Monica, and there was a woman that was setting up her tent in the park. One of the nice blue polo shirt ambassadors from Santa Monica came over, and he was clearly telling her that while she can be in the park, her stuff can't. So, she picked up and walked over to the Venice side where you see the rest of the encampments. In Beverly Hills, West Hollywood, Santa Monica, you name it, law enforcement there will say that you can be here, but your stuff can't.

The reason that their personal property can be in LA is because we settled a number of these cases, most recently the Mitchell case that was brought against the City of LA and only binds the City of LA. Until a few months ago, we had 88 different kinds of public right-of-way standards for dealing with personal property.

Now, we have 102 because the city of LA has 41.18. What Ordinance 41.18 does is allow each of our 15 council members to decide in their council office which areas where there are encampments that they may want to manage or send a cleanup team. If the city of Los Angeles doesn't settle the LA Alliance or Garcia federal cases that exist right now, we may end up with a ruling whether the city wins or loses.

My point is, if we defend one of those cases, we have an opportunity for a ruling that standardizes the management of the public right of way for every city in LA County, instead of 102 different standards. If you have one standard and a city moves an unhoused person from their city to any other city, then I could step in as City Attorney for injunctive or perhaps some other relief.

What I argue is that when an unhoused person is moved from one city to the other, so is the incentive to help them. That is too often the solution for homelessness for many other cities in LA County. Their solution is to have a policy that results in the unhoused person walking over somewhere else, then there's no incentive for that city to step in and help.

Last April, Mayor Garcetti stepped up and said during his State of the City that he had a billion dollars that we were going to put in the solution to homelessness in the city of LA. Judge Carter, in his injunction ruling in federal court, took that billion and put it in escrow. That billion is important because every department wants more resources. We want that billion dollars to be able to do the work in the city of LA to build our infrastructure to help this problem.

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However, if we build it, what are those other cities going to do? They're going to use the billion that we spent on housing in LA to meet their Boise standard. They're going to walk up to the unhoused and tell them that they can't be here now under Boise because there's a shelter. There’s a reasonable offer just three blocks away in the city of LA. That's why we need one standard.

TPR recently published an interview with Kerry Morrison in which she said, “…we have no mental health system. A system implies that there is an interconnection that you can move throughout a system to get to a destination… I have yet to meet anyone who says that our American mental health system works or is worth saving.” Is that sentiment relevant to how the next city attorney will approach settlements and court cases in the future?

Absolutely. You don't have to be an expert to know what you see before you can demonstrate a mental health crisis. We know that among our unhoused population, there is a sizable number that have challenges affected by mental illness and sometimes together with addiction challenges. Those two crises need to be dealt with.

As the City Attorney, one of the things I'll be advocating for are a number of additional community care facilities and doing whatever the city attorney's office can to bring about the resources to provide and respond to the need of community care facilities. Right now, it's the jail or the streets. It's unbelievable that our society continues to allow this to happen.

With that said, as you always hear from city officials how the Health Department is run by the county. One of the things that I put on my website on day one was that COVID demonstrated to us that the city might want to consider creating its own health department. The city of Long Beach has one and much of it federally funded.

There are other issues that the City Attorney's office is going to need to look at going forward because of the mental health crisis. Some of it is controversial, but it's a discussion that we need to have because this is such a difficult and painful and inhumane crisis on the streets of our city.

The City Attorney, being an elected official, has a significant and important power to convene. As I've talked about before, one of the reasons I'm running for this office is because you are the city's liaison to the courts. There is a very specific system that’s complex and certainly not failproof that exists in our legal system for dealing with mental health issues. It is something that the City Attorney's office by its very nature and authority has a role in. Should we look at the model that San Francisco has implemented, which comes from SB 40, that expanded conservatorship ability to include serious mental health episodes and addiction at the city level? The County of LA has hesitated, but San Francisco stepped in.

Pivoting to the City Attorney's office’s responsibility to represent City departments and commissions, especially the proprietary departments, is the City Attorney’s office able to compete in the market place for the legal expertise needed to best serve as General Counsels to the City’s proprietary departments?

All of the city’s proprietaries are critically important, even internationally. Look at the airport and the port. It's important to have a general counsel in the proprietaries that have expertise in the subject matter. Oftentimes, these are lawyers that have come through the office in working with that specific proprietary. What will not surprise people is that each of these offices has a number of different lawyers that work in the General Counsel's Office. So, there are a number of people that have experience in that area.

There are also people that come with expertise in the industry that might not have worked in the City Attorney's office that may be a good fit for the proprietary, whether it's the General Counsel position, Assistant General Counsel, or just an in-house position. It's an amazing job, and for municipal service, frankly, it pays well. That's good because it enables us to get some of the best talent out there like we've already had at the City of Los Angeles in a number of these proprietary General Counsel positions.

The public and the press recently have focused on corruption in the city’s proprietary departments; ie. the recent release of the special master report on the City Attorney's office in the DWP billing class action lawsuit. Could you, as a candidate for the office of City Attorney, address the significance of that report’s findings and the challenges any new City Attorney coming in has to restore public confidence?

It's not just the special masters report, but the indictments and the plea agreements that have resulted too. We've had the most senior Assistant City Attorney in the office plead guilty in this case. A member of the City Attorney's senior outside counsel that was brought in to do work in connection with the Department of Water and Power also now has pled guilty. It’s very possible that more come forward.

I can't express how outrageous it is that we've had that kind of admitted criminal conduct in our City Attorney's office. It has shaken the entire office and has significantly wounded its credibility. That's going to have to be rebuilt.

I'm a former Assistant US Attorney myself, so I've worked in a prosecutor's office. In fact, the same office that is prosecuting this case and running this investigation.

In the 2012-2013 mayor's race, I was the candidate that talked about the unfortunate culture of corruption that I believed existed in City Hall. I was criticized for that at the time. Unfortunately, time did tell, and more unfortunately, I was right. It's important for the new City Attorney to have a record of calling out corruption, experience recognizing corruption, and a willingness and ability to prosecute it.

One of the things I would do is create an Anti-corruption Task Force that brings in partners from the US Attorney's Office, the state Attorney General's office, the District Attorney's office, as well as the ethics Commission and the Controller’s Office. I want partners looking at municipal work that are not city officials. That brings independence to the review of the work that has been happening.

Specifically on the special master report, much of what I've said results because of the plea agreements for the criminal conduct that has been admitted to. The special master report goes farther in naming people that may have, in the special master’s opinion, committed ethical violations. There is a process for how we discipline our City Attorneys, Deputy City Attorneys, Assistant City Attorneys, and all city attorney employees. That's a process that we will work on together, depending on the results of these additional investigations.

There was an element of the special master report that surprised me. That is an issue that relates to the due process that everyone is entitled to, including the City Attorneys that were named in the special master report. Apparently, the special master, as admitted in the report, did not interview the subjects of the report, even with the large budget that the special master had.

That's a special master’s decision. I'm sure he has his own reasons for that decision, but from our perspective, when you're dealing with due process of our attorneys, that affects the credibility of the special master report and that increases the work and the review that will need to happen going forward as we move ourselves out of this incredible scandal of corruption between the City Attorney's office and upper levels of the Department of Water and Power.

Likewise, three City Council members and another in the Mayor’s office have been charged and have been through the court process for ethical and criminal violations. Is that culture something an “independent” City Attorney can address even though that City Attorney’s office is funded by the City Council and the Mayor.

Absolutely. As I referenced in the prior answer, the whole reason that I've published the concept of my creation of an Anti-Corruption Task Force is because of the fact that the City Attorney, by charter, represents city business and all of these organizations. I would argue that the criminal conduct is outside of the scope of their employment.

In that instance, I technically represent their departments or their offices or them individually in working on city business, but the reason I want to bring in the outside partners is because they don't have a conflict issue that the City Attorney's office has.

That's why it makes our role much more effective. Even though we are charter bound to represent them in their city business, we are able to be cooperative in responding to subpoenas or other inquiries where there have been allegations of criminal activity that is obviously outside the scope of the city work that they are entitled to our representation on.

This raises another issue. What do we do with the pensions of people that have been convicted and gone to prison? When they were in their employment, they were represented by unions. When they were not committing crimes, those were salary and pension benefits that belonged to them under the law. Once they began to commit crimes, then they were outside the scope of employment and outside the bounds of law. Then, City Council, the Mayor, and the City Attorney's office need to determine what to do in partnership with labor representatives with those pension funds that may have been paid to compensate what has been determined to be criminal activity.

Those are some issues that are certainly ripe now because of the culture of corruption, but the state law is very clear. Some people are saying to take their pensions away from them. Some of these people may have worked for the city for 30 years. The criminal allegations relate to 18 months. That's what would be the subject of the legal review: the period of time where they were committing criminal activity, not the period of time in their career where there's no allegation. 

In conclusion, what might you foresee yourself doing after being City Attorney?

We always see the City Attorneys running for DA and other positions. I'll be 67 at the end of two terms. I have no intent of retiring, but I'm going to teach municipal law. I want to do it at the law school level and the undergraduate level.

That's important for this race and for this campaign. I'm not criticizing anyone who runs for another office from the City Attorney's office, but I believe that it affects the way the City Attorney might run the office. Perhaps the city attorney would rather settle a case to take away the risk of a bad headline after losing a case. I am going to take those risks and run the office as if I'm going to teach after the City Attorney's office.

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