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SR's city attorney a lightning rod for controversy

By Kevin McCallum, The Press Democrat, Santa Rosa, Calif.
McClatchy-Tribune Information Services

Aug. 10--Like the city she serves, Caroline Fowler has been through a lot this past year.

Santa Rosa's city attorney has found herself at the center of some highly public and unusually rancorous clashes with the city's elected council members, who are her bosses.

She has been criticized for shouting down a city councilman during a public council meeting.

She's been vilified for the guidance she gave to council members in the wake of the Andy Lopez shooting.

And she has been branded "rogue" for what one councilwoman calls her incorrect interpretation of state open-meeting laws.

Later this month the City Council, the majority of which strongly supports its embattled attorney, will meet behind closed doors to try to root out -- possibly with the help of a mediator -- the resentments that continue to fester between Fowler and her council critics.

The 56-year-old mother of two boys says she has done her best to remain professional in the face of what she contends is unprecedented and unfair criticism. She said she works hard to offer evenhanded legal advice and useful information to help city leaders make good decisions.

"Everything I've said or done has been out of a desire to help the city or protect the city," Fowler said. "That's what I care about."

Nevertheless, Fowler has emerged as a powerful and now polarizing figure at City Hall during a key period of transition.

In previous periods of upheaval, Fowler was a reassuring, stabilizing force, said former Councilman John Sawyer. There were times, Sawyer said, when he viewed her as the "de facto city manager."

Now, with the top two administrators gone or soon to depart, a new city manager soon to arrive from El Paso, Texas, and an election right around the corner, her influence could grow or diminish after six years in the top legal post.

Supporters laud her as a hard- working public servant with a strong will, invaluable institutional know-ledge, and commitment to keeping the city out of legal peril.

"Caroline has always had the best interests of the city and City Council's legal well-being at heart," former Mayor Jane Bender said.

But detractors paint her as an overbearing bureaucrat who can be defensive and inflexible when challenged, has a poor track record in court and inserts herself into council debates in a way that suggests partisanship.

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"I believe that she has become a political actor, and that's inappropriate for our city attorney," Councilwoman Julie Combs said.

The opposing views have made Fowler a lightning rod for controversy and contributed to the impression among many that dysfunction reigns in city government.

Intrigued by law course

Born in England, Fowler moved to the United States when she was 3 years old so her father could pursue a career as a tool and die maker. When she was 9, her parents split up and she and her brother moved back to England with her father. He died two years later, and she returned to Southern California to live with her mother and stepfather.

While studying communications at California State University Dominguez Hills, she became fascinated by a course in First Amendment law and decided to pursue a law degree.

She put herself through Southwestern University School of Law in Los Angeles with a combination of scholarships, loans and waitressing at the Ambassador Hotel. She graduated with honors in two years in 1983.

She started out at a small firm doing routine business law but decided she wanted to be a litigator. She worked for several years at a firm specializing in insurance defense and another firm focusing on legal malpractice defense.

In 1991, Fowler and her husband moved to Santa Rosa, where she joined a law firm with strong ties to city government, Maxwell, Allen & Cooper. Dick Maxwell previously had been Santa Rosa's city attorney, and David Cooper served as outside counsel to the city's redevelopment agency.

She filled in occasionally for Cooper, and that's how she met Rene Chouteau, who was then Santa Rosa's city attorney.

Recognizing her background in insurance litigation, Chouteau hired Fowler to go after an insurance company to recover some of the costs of the cleanup of a contaminated property in Railroad Square. The suit resulted in a settlement favorable to the city, she said.

Chouteau later hired Fowler to fill in for an assistant city attorney on disability leave. When Chouteau was tapped to be a Sonoma County Superior Court judge in 2001, his successor, Brien Farrell, hired Fowler as a full-time assistant city attorney.

Chouteau said recently that he made it a priority to hire experienced litigators so that they could give sound advice to city leaders about the risks of going to trial and try cases themselves when necessary.

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"I felt that Caroline fit that mold and would do an excellent job for the city, which she did," Chouteau said.

Fowler handled a range of litigation for the city, successfully defending police officers against claims of excessive force, suing a cable company to force it to improve its customer service, and helping the city get a better deal for ratepayers from the franchise agreement with its garbage hauler, she said.

In the spring of 2008, when Farrell was preparing to retire to become a high school teacher, former Mayor Bob Blanchard, then battling cancer, pushed for the council to approve Fowler's appointment as the new city attorney in April even though she wasn't set to officially assume the role until July.

"I later found out it was because he knew he was dying," Fowler recalled. "I was very touched by that because he wanted to leave things in good order."

Tumultuous period

Blanchard died two months later, and his passing marked the beginning of a tumultuous period in Santa Rosa city government and politics, one that reverberates to this day.

It created challenges for the new city attorney right from the start.

After Blanchard resigned in May, the council grappled with how to replace him, particularly with the thorny question of whether Sawyer, then the vice mayor, should automatically become acting mayor.

About that same time, there was a major shake-up in the Police Department that resulted in the firing of its second-in-command, Capt. Jamie Mitchel, and the subsequent ouster of the chief, Ed Flint, who was pushed out over complaints from employees claiming they were the victims of discrimination and retaliation by top brass.

Mitchel would spend the next six years battling the city in state and federal court over his termination, claiming in part that Fowler had illegally shared a confidential report about him with one of the employees who filed a complaint. The allegation, later dismissed like all Mitchel's other claims, nevertheless was a formative moment for Fowler, reinforcing her view of the need to be conservative when it comes to releasing employee information.

Months later, the city saw a seismic shift in its political and economic landscape. The economy, sputtering throughout the summer of 2008, went into a nose dive, triggering a recession that would place significant strains on city staff and resources over the next few years.

In November, the City Council election saw a liberal majority come to power for the first time in city history. Gary Wysocky and Marsha Vas Dupre joined incumbent Councilwomen Susan Gorin and Veronica Jacobi to form an alliance backed by environmental and labor interests.

Gorin said Fowler proved invaluable to her during her two-year rotation as mayor, providing far more than just legal advice. She came to rely heavily on the city attorney for her insights into things such as the mood of city employees during a period of layoffs and low morale, she said.

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"In my experience as a mayor and a council member," said Gorin, now a county supervisor, "she was a great asset and ally."

De facto city manager

Gorin wasn't the only one who held that view of Fowler. After longtime city manager Jeff Kolin left in 2010 for Beverly Hills, followed soon thereafter by the departure of Deputy City Manager Greg Scoles, Councilman John Sawyer said he found himself turning more to Fowler for counsel.

Sawyer strongly objected to the council majority's decision to pass over Scoles to give the interim city manager job to Wayne Goldberg, the former advance planning director. In a still- talked-about moment, he lambasted the decision from the dais as an "unnecessary, embarrassing, destructive, destabilizing and outrageous exercise."

Even though he worked professionally with Goldberg, Sawyer said he came to consider Fowler as "the de facto city manager." As he put it, "the veil that floated between the city attorney and the city manager positions became more sheer."

Sawyer said he and others trusted Fowler and viewed her experience and relationships with city staff as more valuable.

"Of those two, I felt that she was more in touch than anyone else in City Hall," Sawyer said.

That remained the case for him even after the current city manager, Kathy Millison, was hired in the summer of 2010 and needed time to get up to speed on the city and organization, he said.

Four years later, amid another power vacuum at City Hall, Fowler's central role has become one of the most contentious issues for a City Council overseeing services for a population of 170,000 people.

Her critics say the heart of the debate lies in the question of who runs the city -- the elected officials or the paid staff? They stress that it is the council's responsibility to provide oversight of city staff and hold them accountable for their performance.

But supporters view the attacks on Fowler as patent political attempts to tarnish her and her supporters by implication. The say the relentlessness of the criticism smacks of a smear campaign by council members frustrated by their powerlessness.

The two progressives now in the minority, Wysocky and Combs, are her most strident critics.

"I think they want her fired," Councilwoman Erin Carlstrom said.

Courtroom skills

Those who have seen Fowler in action say she's a skilled litigator who represents the city's interests in court well even if it doesn't result in a legal win.

In 2012, Tom Schwedhelm, then the city's police chief, spent three weeks in a San Francisco federal courtroom watching Fowler defend the city against a wrongful death suit brought by the family of Richard DeSantis, a mentally ill man who was shot dead by officers. Fowler was well prepared and handled the delicate cross-examinations of DeSantis' family deftly, he said. Even though the jury sided against the city, because of how Fowler carefully presented the evidence, she later was able to get the jury's verdict thrown out. The city eventually settled the case for $1 million.

"I believe she has carried on the excellent tradition of the Santa Rosa City Attorney's Office," Schwedhelm said.

The job of a city attorney is also to advise the City Council and look out for the interests of the city as a whole. That means helping the council understand and navigate the various legal obstacles and risks associated with a potential policy or course of action, former Sonoma County Counsel Steven Woodside said.

That can be challenging when there are sharp divisions on a council or other public board, because invariably the advice will be viewed as more supportive of one side's position than the other's, Woodside said.

"You don't like giving advice that is unwelcome, but that's part of the job," Woodside said. "And the art is to make the council members understand that you are being honest and sincere and you're telling it straight."

Fowler's skill in this arena is a matter of debate.

Even some of her supporters privately say the very combativeness that makes her a formidable litigator hasn't always served her well in her interactions with some council members. She has strong opinions about the law, expresses them directly, and doesn't appreciate being second-guessed, they say.

Speaking about her as an attorney, not about her relations with council members, Woodside said, "Caroline is assertive and very direct and she doesn't hold back, in my experience."

She also has not been shy about involving herself in policy decisions. Unlike Chouteau, who stuck to offering legal advice, Fowler, perceiving a power void in the city after Kolin and Scoles left, viewed her role more broadly, Goldberg said.

"She interjected herself more into the policy and administration discussions," Goldberg said. "I think she viewed it as stepping up to the plate."

Last one standing

Fowler says that there have been times when she felt like she was the last one standing among top city officials. In addition to the turnover in the city manager's office, she noted the city has gone through five chief financial officers since she's been city attorney. Thirteen years into her career with the city, she is one of the highest-paid officials, with a base salary of $189,000 per year.

"I tried to provide stability during that time and fill in where there were gaps and something was needed," Fowler said. "I did a lot of things when they needed to get done."

She noted that issues like the city's liability related to the county landfill or its involvement in Sonoma Clean Power, the public electricity provider, are complex and she has taken the lead on them because the city lacks staff who are experts in those areas.

But Fowler's proactive approach advising the council continued long after Millison's arrival and, some say, continues to this day. Where Millison, who is retiring next month, has taken a more hands-off approach to the council, Fowler plays a more active role in council discussions.

She offers unsolicited advice, legal and otherwise, and interjects additional information she feels is relevant to council debates.

But that habit, perhaps more than any other, has put her squarely in the cross-hairs of some council members who feel she oversteps. Combs has taken Fowler to task for what she views as overly broad and inappropriate guidance.

"It's clearly not the role of the city attorney to be either the city manager or an additional council member," Combs said.

It seems to Combs that the council majority gives Fowler wide latitude to argue in favor of or against a proposition in a way that suggests she's aligned with their interests.

"It's as if she's taken sides," Combs said.

Fowler denies this, but is aware that at times council members become frustrated when her advice "gets in the way of people's agendas."

She sees it as her responsibility to make sure the council has all the information it needs -- legal or otherwise -- to make informed decisions. There are times when city staff, particularly if they are being "hammered" publicly, need assistance in answering the council's questions, she said.

"If other people don't step up to provide it, then I will provide it," she said.

The debate on the county's plastic bag ban was one instance when the additional information Fowler provided wasn't appreciated by all. She offered opinions about the consequences of the city joining a countywide ban versus Santa Rosa controlling such rules through its own ordinance.

She said she was "skewered" by some in favor of the countywide measure who viewed her as being obstructionist.

"I'm not telling them don't do it. I'm just saying, you need to understand that if you do this, this is the consequence," she said. "I don't ever want to be in the position of having the City Council say, 'Gosh, why didn't you tell us that?'?"

Overstepping?

Interjecting relevant information into a discussion is one thing, cutting off a councilman mid-sentence is another. That's what happened in October when Wysocky tried to discuss the council's closed-door deliberations that led to the council approving a new firefighters' contract.

Wysocky pushed back against Fowler's warnings not to reveal details of those deliberations, and she told him he could not discuss "any of the conversations that took place in closed session or you are committing a misdemeanor."

It was a tense standoff and turning point in their relationship, one that set the stage for the heated backroom argument two weeks later following the decision to close City Hall prior to a march protesting the Andy Lopez shooting. The argument triggered the investigation that would lead to Wysocky's formal censure in June.

"I was told erroneously that there were criminal penalties for disclosing any information about how the council reached an important decision affecting the future of our city," Wysocky said. "That resulted in the suppressing of information that I think was very relevant."

Wysocky isn't the only one who thinks Fowler overstepped her authority during that period.

Combs took issue with Fowler's directive to the council not to speak publicly about the Lopez shooting at the time.

Fowler emailed council members in the days after the shooting that it was "critical" they not comment on the "incident." She also reminded them that interfering with a police investigation was a crime. Fowler added in a voice mail to Combs that she "cannot discuss that case under any circumstances."

Combs, believing someone from the city should say something about the tragedy on Santa Rosa's southwestern outskirts, pushed back against that "gag order" and characterized it as a violation of her free-speech rights.

Fowler says she was trying to make sure council members didn't interfere with the Santa Rosa Police Department's investigation of the shooting and stands by her advice.

"I'm surprised at how big of an issue this has become," Fowler said. "I think my email was very clear, and if it wasn't, she could have picked up the phone and called me."

Carlstrom tried to broker what she called a "detente" between the two and brought them together for a private meeting late last year. Combs, who said she was worried at the time she was under investigation for something, brought her own attorney. The two sides "hashed a bunch of stuff out," Carlstrom said. She hoped relations would improve, but they did not.

Escalating standoff

Combs privately sought to prove the advice Fowler gave to Wysocky -- and by association the entire council -- about the penalties for speaking about closed-session issues was wrong.

The first-term councilwoman secured an opinion from the state's Office of Legislative Counsel that supported that view, calling the case law Fowler relied on outdated.

Fowler disagrees with the interpretation and has stressed the broader point -- that council members shouldn't be revealing details of closed-session discussions.

She called it "unprecedented" for a council member to put out a press release, as Combs did, announcing that she had received an opinion contradicting the city attorney. She also called it "fascinating" that Combs timed the release of the information just before Wysocky's censure vote.

The standoff has confounded other council members. "I don't understand why Julie feels the need to make a public case against Caroline," Carlstrom said. "The continuation of this is really just mind-boggling."

Combs denies that her critique of Fowler is politically motivated, but admits partisanship is part of the reason she's been so public about it. Fowler has been given "glowing reviews" by the council majority and others' concerns about her performance have been minimized, she said.

"Some of us aren't sure it's so exemplary," Combs said.

She said she wants an honest discussion that recognizes Fowler's strengths and weaknesses instead of pretending the weaknesses don't exist. One of those weaknesses is a predisposition to err on the side of secrecy when the law requires erring on the side of transparency, Combs said.

Her office's track record is another. Combs pointed to an appellate court ruling that in 2013 fined the city nearly $40,000 for frivolous legal filings in its effort to preserve the right of bicyclists to ride through a gated community near Oakmont.

She noted that the language in that ruling, including the city's "repeated pattern of ignoring or misrepresenting relevant authority," is deeply troubling.

Combs said it has been difficult for her to be such a public critic of someone she previously got along with. The two used to have lunch and "for the most part she is a pleasant person," Combs said.

Given what she sees as Fowler's intransigence, and the council majority's unwillingness to face her shortcomings, Combs said she has no other choice than to press for the difficult discussion.

"Let's be honest and talk about the shadows along with the sunlight," Combs said. "And we've got a lot of shadows coming out of that office."

Fowler knows Combs and others want her to admit she was wrong, but she said she has no intention of doing so.

"I'm not going to be coerced by any council person into giving an opinion that I don't agree with," she said.

You can reach Staff Writer Kevin McCallum at 521-5207 or kevin.mccallum@pressdemocrat.com. On Twitter @citybeater.

___

(c)2014 The Press Democrat (Santa Rosa, Calif.)

Visit The Press Democrat (Santa Rosa, Calif.) at www.pressdemocrat.com

Distributed by MCT Information Services

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