The Report is In – Has Been Since July – but the Public May Never See It!
If it Exonerates Silverstein that Could Disparage Feldman for making False Accusation, which Malibu Interim Attorney Says Could Violate Her Non-Disparagement Clause
If Silverstein was Found Responsible for Harassment, Why Has Report Stayed Buried and No Action Taken Against Him?
By Paul Taublieb
According to the interim City Attorney, John Cotti, the report into former City Manager Reva Feldman’s allegations of harassment by newly elected council member Bruce Silverstein has not only been completed and delivered to the city, but its contents may never be known, even though the report was completed and delivered to the city back in July, 2021.
In an ironic twist, if the results proved Silverstein was innocent of the charge of “harassment” leveled by Feldman releasing the very information that would clear him would also simultaneously disparage Feldman for her having made the false allegations, putting the city at risk for liability due to the non-disparagement clause in her settlement agreement with the city, a settlement which was reached before the investigation was completed.
These charges of harassment by Silverstein were the foundation of Feldman’s threat to litigate against the city and were the basis of her demanding, and receiving, a payment of $300,000 as part of resigning from her position, along with a non-disparagement clause. The situation has received renewed attention as some council members and supporters of Feldman have publicly conflated her exit and settlement as costs related to the fallout of the Wagner affidavit.
“The report was submitted but as a personnel matter and subject to Reva’s separation agreement, which includes a non-disparagement clause, the report cannot be released,” said Cotti. “If the report was released, it’s my belief it would subject the city to liability from Reva. They council knows this full well it cannot release it without potential liability.”
Per Cotti, “The report was completed on July 20, 2021 and provided to the Council by me as an attorney client communication shortly thereafter. As to the substance of the report, or others comments about the allegations, I cannot comment. Nor can I comment about any press release other than to say one has not been issued.”
When asked if the document was released and if it exonerated Silverstein would that amount to disparagement against Feldman, he would only say, “The document is not subject to release because of the separation agreement, which includes a non-disparagement clause, along with attorney client privilege.” And Cotti said that waiving attorney client privileged, as was done in the Jefferson affidavit case, would not protect the city from litigation due to the non-disparagement clause – even if it clears Silverstein.
Regardless of the potential risk, council persons Silverstein and Steve Uhring have stated they want the report released as the public should see it regardless of potential exposure, with Silverstein stating “I am in favor of releasing the report of any investigation the city has commissioned — including investigations of some now-former employees.” Uhring added, “The public has a right to know what is in that report – it was paid for by their tax dollars, and this is regardless of the potential exposure. At the next city council meeting I plan to bring up releasing the report as the public has a right to know what’s in it since they paid for it.”
Council persons Mikke Pierson, Karen Farrer and Paul Grisanti have been asked a number of times to comment on the release of the report, but despite a number of attempts to reach them none have responded in any fashion.
In other words, even if the investigation, which the city council voted to pay for with taxpayer funds and has been quietly at the city for 5 months, resulted in the total exoneration of Silverstein, according Cotti, those results and the report itself can still, in his opinion, never be released, because it would violate Feldman’s separation agreement and the non-disparagement clause within it. To put a fine point on it, if the report clears Silverstein that would mean Feldman was wrong and her allegations unfounded, which while clearing Silverstein, would also disparage her since she made unfounded, erroneous allegations in order to reach her separation agreement, which included a $300,000 payout. Cotti believes this would be the equivalent of disparagement, regardless if the facts cleared Silverstein. However, if the council did find malfeasance in the report on the part of Silverstein it theoretically could be released without exposure since it didn’t disparage Feldman, assuming attorney client privilege was waived. Despite this, the report has not been released and Cotti says he is not authorized to do so.
In addition, if Silverstein was found to have committed the alleged harassment in the report, even with or without releasing the report, according to Cotti, the city’s bylaws do allow actions to be taken against him by the council: they could publicly rebuke and censure Silverstein and/or vote to remove him from committee assignments. It is worth noting that none of these actions have taken place despite the report being delivered back in July, nor has it been the subject of a public or private “special session” of the council. It is also worth noting that during a recent city council meeting, various members of the council heavily criticized Silverstein for his role in the Jefferson affidavit report and its connection to Feldman, while potentially being in possession of information clearing Silverstein.
Unanswered are questions about what happens if the report comes back exonerating Silverstein, should indeed be the case. Should the city attempt to “claw back” the $300,000 paid to Feldman on what was later proved to be a false allegation, plus perhaps penalties for making false allegations? In this event, should council persons who were aware that Silverstein was exonerated yet still publicly criticized him over this be subject to censure or removal from committees, the only punitive actions the council can take – though this would mean those council persons voting for their own penalties.
On the other hand, if the findings show Feldman’s claims of harassment were valid, should the council consider actions against Silverstein? But if that is the case why would the city have taken no action to date since there are no non-disparagement ramifications to this outcome, and have had this information since July?
It would appear likely that regardless of what is in the report, this could well be a critical talking point in the upcoming elections. On one hand, if Silverstein was cleared the issue becomes why did possible candidates for reelection continue to harshly criticize Silverstein when they knew for months he was innocent of the Feldman accusation; on the other, if Silverstein is found guilty of the charge of harassment which led to the Feldman $300,000 settlement, why did the council do nothing for months, including using the tools at their disposal, since there was no liability to the council persons or exposure to the city?
Also, this begs the question as to why an investigation was done after a settlement was reached in the first place. Addressing this, Cotti commented, “It would have been better if an investigation took place first, but that’s not what happened.” When queried whether politics played a role in the process, Cotti concluded, “It’s Malibu, politics always plays a role.”
More to come as this story is updated.