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    News

    Extended Council Discussion, Revelations, 6-1 Council Vote (Reyes Uranga Dissenting, B. Lowenthal & S. Lowenthal Absent Per City Att'y Advice) In Workers Comp Payment To Vice Mayor Bonnie Lowenthal Re 2004 Kerry Event


    (August 9, 2006) -- With Vice Mayor Bonnie Lowenthal and Councilwoman Suja Lowenthal absent from the City Council Chamber on the advice of City Attorney Bob Shannon, the City Council voted 6-1 (Reyes Uranga dissenting) on August 8 to approve a Workers Compensation payment in connection with injuries sustained by then-Councilwoman (now Vice Mayor) Bonnie Lowenthal in a slip and fall after touring Sen. John Kerry's campaign jet which was at LB Airport after a Kerry campaign speech at CSU Dominguez Hills earlier in the day.

    An extended Council discussion took place, prompted by Councilwoman Tonia Reyes Uranga who pulled the item from the Council's "consent calendar" for discussion. (City Attorney-recommended workers comp payments are routinely placed on the consent calendar for approval, usually without discussion). Councilwoman Reyes Uranga questioned City Attorney Bob Shannon at length about the matter and there was additional Council colloquy.

    LBReport.com posts extended transcript excerpts below.

    During the Council discussion, it became known that at least three Councilmembers -- Bonnie Lowenthal, Rae Gabelich and Tonia Reyes Uranga -- attended the Kerry campaign-related Airport event...and Councilwoman Rae Gabelich volunteered that she was invited to attend via the office of then-LB Mayor Beverly O'Neill. [The three Councilmembers and now-former Mayor O'Neill are all Democrats; O'Neill was a CA delegate to the Democrats' 1996 presidential convention that renominated Bill Clinton.]

    Councilwoman Bonnie Lowenthal slipped and fell on a stairway leading from the Kerry campaign jet, seriously injuring her ankle and arm. The injuries were not trivial and involved surgery and absence from Council meetings.

    Sen. Kerry's campaign jet was about to leave LB Airport after an August 12, 2004 Kerry "Believe In America" campaign stop at CSU Dominguez Hills where the Massachusetts Democrat offered what his campaign called a "plan to keep jobs in the United States and make our economy work for all American families...Throughout the 'Believe in America' tour, John Kerry and John Edwards have talked directly to voters about their vision to make America stronger at home and respected in the world..."

    While noting that the matter came to the City Council because the City Charter gives the Council the final word to approve or disapprove any piece of litigation (third party or workers comp), City Attorney Shannon added:

    "[T]here are certain legal issues that you should rely on your City Attorney, if you're prudent, relative to the issues that for example involve Workers Comp, in other words, what constitutes 'course and scope' of your duties. We handle these kind of cases on a regular basis. We think we know what does in fact constitute 'course and scope of employment' and what a Workers Compensation Board would find to be 'course and scope' of employment. Another thing I want to mention about Workers Comp is that unlike almost any law that I can think of, it's very, very clear in the very beginning in the set of Workers Compensation laws that the state passed many years ago, it said very clearly that these laws will be interpretted liberally in favor of the employee, so the employee is going to be presumed, unless we can prove otherwise, that they have acted in the 'course and scope' of their employment."

    Councilwoman Reyes Uranga pressed the point and the following colloquy ensued:

    Councilwoman Reyes Uranga: ...If in fact we are invited to a "retire the debt" [event] for a Councilperson, and we're comped, and we're not paying, and we attend as a Councilperson because that's why we're invited not because we're rich, and we go to this and say for instance fall down an elevator or stairs or something, is this something that we can file a Workman's Comp [claim] for?

    City Attorney: You can file it but we'll deny it.

    Councilwoman Reyes Uranga: And what would the basis of denial [be]?

    City Attorney: Because you're conferring no public benefit upon the City of Long Beach when you go to a private campaign party and contribute whatever you contribute to a private campaign party.

    Councilwoman Reyes Uranga: So then you've the decision that in this case there was a benefit to the City?

    City Attorney: I make a distinction between what you've alluded to and attending an official function for a public dignitary like a candidate for the President of the United States. There's a very fundamental distinction there. There is a very direct benefit conferred upon the City when a public official, such as a Councilperson, attends at the request of a candidate for a high public office.

    Councilwoman Reyes Uranga: Well what if the fundraiser was for a candidate for a high public office? What if it was fundraiser for John Kerry?

    City Attorney Shannon: No. You're asking me to give you bright-line answers. We would evaluate the circumstances of each individual case, keeping in mind the fundamental concept that the [Workers Comp] law is very liberally construed in favor of the employee.

    Councilwoman Reyes Uranga: ...So it has to be an official city function?

    City Attorney Shannon: I'm going to deal with this on a case by case basis. With regard to this particular issue, I am satisifed that Ms. Lowenthal was within the "course and scope" of her employment. With regard to future theoretical cases, we will deal with them on a case by case basis.

    Councilwoman Reyes Uranga: ...I think that there's been enough public scrutiny and concern and comments and complaints about this that a fair airing should be made. And secondly, I was there. And I didn't understand it to be an official city function...

    ...

    Councilwoman Rae Gableich: ...I was there as well. And I would say that having been invited by our Mayor [O'Neill] that we were invited to represent the City of Long Beach, and so we were operating in a professional capacity. I understand both sides of this...

    The Workers Compensation Stipulation authorized by the Council vote agrees to payment to Vice Mayor Lowenthal of $10,500, based on a 12% disability rating, with a provision for lifetime medical care as may be needed.

    On July 18, 2006, LB Councilmembers elected Councilwoman Bonnie Lowenthal as their their Vice-Mayor [presides at Council meetings in the absence of the Mayor]. She was also recently named to a voting position on the L.A. County Metropolitan Transportation Authority governing board (which includes all of L.A. County's Supervisors, plus L.A. Mayor Antonio Villaraigosa, plus several Councilmembers from L.A. and other area cities).

    Our extended transcript excerpts follow [unofficial, prepared by us]:

    Councilwoman Suja Lowenthal: ...I have been in consultation with the City Attorney and he has instructed me to abstain from this item...

    Councilwoman Reyes Uranga: ...What was the reason for [Councilwoman Suja Lowenthal's abstention]...

    City Attorney Shannon: ...With regard to abstention, obviously Bonnie Lowenthal has left the room because it directly concerns her. I have conferred with the Councilwoman from the Second District [Suja Lowenthal] and I am satisfied that there is a specific conflict of interest and she is therefore entitled, legally entitled, legally required, to abstain on this matter and leave the room.

    Councilwoman Reyes Uranga: Do we need to know the nature of the conflict?

    City Attorney Shannon: The nature of the conflict is that she has received over $250 in the past year from the Councilwoman [Bonnie Lowenthal], nothing mysterious...This is not a campaign donation, this is a familial donation...

    Councilwoman Reyes Uranga: ...[Please] explain the relationship between City Councilpeople and Workman's Comp? As the City Council, are we treated as any other employee in regards to Workman's Comp issues?

    City Attorney Shannon: For the purposes of Workers Comp, which of course is state law, the City Council has no ability to alter state law, you are considered to be employees and you have the same rights that any other employee of the City of Long Beach would have with regard to receiving Workers Compensation benefits. So this is not a benefit that you have conferred upon yourself. This is a benefit that the state legislature has given to every employee of every entity, be it a public entity or a private entity. Any employee who is injured in the course and scope of his or her duties is entitled to Workers Compensation in a manner and in an amount as prescribed by state law.

    Councilwoman Reyes Uranga: They're automatically eligible or do they have to apply?

    City Attorney Shannon: Well if someone is injured they would have to file a claim, yes.

    Councilwoman Reyes Uranga: So it's not automatic, they have to file a claim.

    City Attorney Shannon: Correct.

    Councilwoman Reyes Uranga: OK. And when you say in the course and scope of your work, I just wanted to clairify, the course and scope of your work...what would you describe [the City Council's work] as?

    City Attorney Shannon: It's very, very difficult to define and your duties are very, very far reaching. With regard to those ceremonies or occasions in which you're called upon to attend as a city dignitary, you would be considered in the course and scope of your duties and if you were injuried incidental to that particular occaision, then you would entitled to Workers Comp.

    Councilwoman Reyes Uranga:...In the public document that is in the Council agenda, it states "The Councilwoman has made a claim for injuries allegedly sustained in the course of her employement with the City of Long Beach..." that word is used with all cases, correct?

    City Attorney Shannon: Yes, and in some ways it's unfortunate. If I had it to do over again, I wouldn't use the word "allegedly" because we are fully satisfied -- we, the City Attorney's office empowered by the [City] Charter to investigate all Workers Compensation claims -- we're fully satisfied that in fact (a) Ms. Lowenthal was in the course and scope of her duties and (b) was in fact injured in the manner that she claims to have been injured, so the word "allegedly" is misleading. It's not alleged, it's true.

    Councilwoman Reyes Uranga: But all the claims that come to us at the City Council have that same language.

    City Attorney Shannon: Yes.

    Councilwoman Reyes Uranga: ...It has been determined by who [that the claim is valid]?

    City Attorney Shannon: Well, there are legal issues and there are factual issues and of course the Charter indicates very clearly that you have the final word to approve or disapprove any piece of litigation, whether it be third party litigation or Workers Compensation litigation, and that's why this is before you now. But there are certain legal issues that you should rely on your City Attorney, if you're prudent, relative to the issues that for example involve Workers Comp, in other words, what constitutes "course and scope" of your duties. We handle these kind of cases on a regular basis. We think we know what does in fact constitute "course and scope of employment" and what a Workers Compensation Board would find to be "course and scope" of employment. Another thing I want to mention about Workers Comp is that unlike almost any law that I can think of, it's very, very clear in the very beginning in the set of Workers Compensation laws that the state passed many years ago, it said very clearly that these laws will be interpretted liberally in favor of the employee, so the employee is going to be presumed, unless we can prove otherwise, that they have acted in the "course and scope" of their employment.

    ...

    Councilwoman Reyes Uranga: ...If in fact we are invited to a "retire the debt" [event] for a Councilperson, and we're comped, and we're not paying, and we attend as a Councilperson because that's why we're invited not because we're rich, and we go to this and say for instance fall down an elevator or stairs or something, is this something that we can file a Workman's Comp [claim] for?

    City Attorney: You can file it but we'll deny it.

    Councilwoman Reyes Uranga: And what would the basis of denial [be]?

    City Attorney: Because you're conferring no public benefit upon the City of Long Beach when you go to a private campaign party and contribute whatever you contribute to a private campaign party.

    Councilwoman Reyes Uranga: So then you've the decision that in this case there was a benefit to the City?

    City Attorney: I make a distinction between what you've alluded to and attending an official function for a public dignitary like a candidate for the President of the United States. There's a very fundamental distinction there. There is a very direct benefit conferred upon the City when a public official, such as a Councilperson, attends at the request of a candidate for a high public office.

    Councilwoman Reyes Uranga: Well what if the fundraiser was for a candidate for a high public office? What if it was fundraiser for John Kerry?

    City Attorney Shannon: No. You're asking me to give you bright-line answers. We would evaluate the circumstances of each individual case, keeping in mind the fundamental concept that the [Workers Comp] law is very liberally construed in favor of the employee.

    Councilwoman Reyes Uranga: ...So it has to be an official city function?

    City Attorney Shannon: I'm going to deal with this on a case by case basis. With regard to this particular issue, I am satisifed that Ms. Lowenthal was within the "course and scope" of her employment. With regard to future theoretical cases, we will deal with them on a case by case basis.

    Councilwoman Reyes Uranga: ...I think that there's been enough public scrutiny and concern and comments and complaints about this that a fair airing should be made. And secondly, I was there. And I didn't understand it to be an official city function...

    ...

    Councilwoman Rae Gableich: ...I was there as well. And I would say that having been invited by our Mayor [O'Neill] that we were invited to represent the City of Long Beach, and so we were operating in a professional capacity. I understand both sides of this...

    ...

    City Attorney Shannon: The Workers Compensation laws with regard to damages are very formulaic. It's not like third party liability where you can negotiate numbers based on subjective evaluations of pain and suffering. Once the injury is established, and this was a very substantial injury...a third party objective state employee Evaluator looks at the nature of the injury and ascribes a percentage permanent disability and in this particular case came up with the number of 12%. This is something that the Workers Compensation Board would simply accept. Now once you get that 12% figure, then the number, the $10,000 number, follows as a matter of course, so these are not numbers you just grab out of the air...Once it's determined that a person is acting in the "course and scope" of their employment, the only determination to be made is what is the nature and extent of the injury. Once you determine that, then the numbers follow automatically, both with regard to the providing of medical benefits and with regard to the providing of a weekly stipend which in this particular case comes to the total sum of $10,500...It's paid $200 a week until the final amount is exhausted.

    Councilwoman Gabelich: I just want to share that I'm very comfortable with the process that this has gone through. It's unfortunate that she was at work representing her district and the City of Long Beach and there was an accident.

    ...


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