Bid to Oust Myers Over Homeless Impasse Fails : Government: City attorney refuses to prosecute violators of anti-encampment law. Effort to fire him for insubordination falls short, losing 5-2.

Santa Monica City Atty. Robert M. Myers refused to prosecute violators of a new law aimed at keeping people from living in the city’s parks, triggering an unsuccessful move to fire him for insubordination.

The move failed by a 5-to-2 vote at the City Council meeting Tuesday.

Myers insisted that his decision not to prosecute was nothing more than normal prosecutorial discretion, given clogged courts, limited resources and what in his view is the unlikelihood of obtaining convictions under the statute.

“We believe that prosecution would be ineffective in addressing the public safety concerns of the community,” Myers wrote in a three-page memo. “Our prosecution policies are designed to protect the public from actual anti-social conduct. . . . Nuisance behavior can often be lawfully handled by the police without the need for prosecution.”

The law at the center of the debate was passed in April in response to fears expressed by residents that many public places in the city, particularly the parks, had become unsafe and unusable by the general public because they had been taken over by homeless people.

The ordinance was recommended by a citizen’s task force on homelessness and endorsed by Police Chief James T. Butts.

Councilman Herb Katz said that to not prosecute violators would amount to “dereliction of duty.” He also said that prosecution was needed to back the police chief. By not insisting on prosecution, “we are stabbing that man in the back right now,” Katz said.

But Myers said a prosecutor has an independent charge to represent the needs of “the people of the state of California. If you don’t like my prosecution policies, get another prosecutor,” he said.

Myers’ decision is in keeping with his outspoken disdain for the anti-encampment law, which he has characterized as repressive and unconstitutional. After Myers refused to draft the law, the council majority hired outside attorneys at a cost of $16,872 to do it for them.

At the time, Katz and Councilman Robert T. Holbrook tried to force the issue of whether Myers would prosecute violators, but the council majority said that that was a question for another day.

Police started issuing citations at the beginning of June, with alleged violators due in court July 1 for arraignment, while everyone awaited Myers’ next move. Now, none of these cases--nor any future cases--will be filed. As a result, Myers was on the hot seat once again this week at a council meeting that lasted until early Wednesday morning, drawing six speakers at 1:30 a.m. to praise and protest his stance.

One Santa Monica resident, Asha Greenberg, a deputy city attorney in Los Angeles and vice president of the League of Women Prosecutors, chided Myers for losing sight of his prosecutorial duty to enforce all valid statutes.

She read from a section of a prosecutors’ ethics manual that said, “Prosecutors should seek to fairly enforce the law as enacted by the legislature and interpreted by the courts. Prosecutors’ personal reservations about the wisdom of a law should not interfere with their objectivity.”

Myers’ assistant Jerry Gordon, who heads the office’s criminal division, said later he was “offended” at Greenberg’s issuing of an ethical opinion without reading Myers’ entire memo on why he will not prosecute under the new law.

Greenberg said she had not heard of a wholesale refusal to prosecute a law and wondered why anyone would enact a criminal statute with no expectations of prosecution. “You have to look at what the public wants and expects,” she said.

Her husband, attorney Max Greenberg, a Jewish community leader and former Los Angeles Police Commission member, said Myers was acting inappropriately and in “a totalitarian and highly arrogant way. . . . His attitude is very undemocratic.”

But Myers’ supporter Steve Alpert denounced critics of the city attorney as members of the “lunatic fringe. . . . The people of this city are behind Bob Myers 100%.”

In this case, the Myers supporters who counted were his allies who dominate the City Council. They rose to his defense in interviews and at the public hearing.

“One can see there is logic to his point of view,” Mayor Ken Genser said. Police enforcement of the law--without prosecution--is acceptable, he said. “The issue is not really prosecution, it’s police enforcement.” That view is not shared by Butts, who favors both enforcement and prosecution of violators as a deterrent.

“We were looking forward to prosecution,” Butts said in an interview. “It is always more beneficial for altering behavior if enforcement action is followed by vigorous prosecution.”

Butts was not at the hearing and his views did not rate a mention from members of the council majority--not even from Councilman Kelly Olsen, who has staked a claim on the council as a champion of the department.

Olsen recited a litany of Myers’ criminal prosecution efforts in other areas and asked speakers if they were aware of the office’s rate of prosecuting serious criminal behavior.

Holbrook responded that “his prosecution rate for violation of encampment law is zero and in the future it will be zero.”

The city attorney’s critics long have contended that Myers is substituting his moral judgment and values for those of the elected City Council that hired him.

“You cannot operate a city government with policy-makers asking for one thing and the staff deciding to do another,” Holbrook said. “He’s trying to usurp our elected power.”

Katz agreed.

“Bob Myers is now clearly in violation of his job,” Katz said. “He’s put the majority of the council in a hell of a spot,” he added, apparently alluding to the November elections in which four council seats, including his, are on the ballot. The council majority swiftly passed the recommendations of the homeless task force in December, including public safety measures, in hopes of deflating the volatile issue before election season.

The five members of the council who support Myers all are aligned with Santa Monicans for Renters Rights, the pro-rent-control group that dominates city politics. There is widespread speculation in Santa Monica, however, that the Myers controversy and related problems involving the homeless could cause political problems for the council majority in November.

The council majority cleared one hurdle when it passed the law against living in the parks. After the law passed, a citizens’ group, Save Our City, withdrew an initiative that would have given the public a chance to vote on an anti-encampment ordinance. The group decided the law passed by the council was one they could live with.

Now, Save Our City co-chair Jean Sedillos said, it’s time to stop focusing on Myers and to start paying attention to the five council members who lack “the guts to fire him. . . . These people could take care of this problem in 24 hours,” Sedillos said. “If they don’t solve it, they’re thumbing their nose at the people of Santa Monica.”

From the outset, Myers opposed the anti-encampment law, just as he has fought against other measures that he contends target the homeless.

In his recent memo, Myers concluded that convictions under the law would be “hard if not impossible to obtain” and punishment nonexistent because of overcrowded jails.

“It would be far less controversial to prosecute these cases, knowing full well that legal challenges will result in charges being thrown out by the court,” Myers said. “While passing the buck and the political fallout to the courts may be tempting, a prosecutor should never misuse the courts.”

As for the potential political harm to his City Council allies, Myers said in an interview, “I don’t make decisions based on political fallout to myself or to other people.”