Melahat Gets DPOC to Not Endorse Barnes over Her Not Breaking the Law

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DNC member and busy well-compensated consultant Melahat Rafiei sent an email to DPOC members early this month encouraging them not to endorse Anaheim City Councilmember Denise Barnes for re-election because of some written statements made by her Administrative Assistant, Helen Myers.  Barnes has two staffers, Myers and friend-of-the-blog Cynthia Ward; Ward does the policy work for Barnes (so I suppose that her political opinions might be of interest) and Myers does the administrative work.  Myers had worked for Councilmemeber James Vanderbilt before he lost his election to top Rafiei client Jordan Brandman, who is closely tied to the Building Trades unions.  Vanderbilt had recommended Myers to Barnes for her strong administrative assistant skills.

Normally I don’t rule out sources,, but I will note that I have not spoken to Barnes, Myers, Ward, or Vanderbilt (nor, of course, Rafiei or Brandman or anyone from the Building Trades) for this story because I already have everything I need to know in graphic form.

Denise Barnes at left, Helen Myers at right, Melahat Rafiei coming between them.

The background is that Barnes had been a Republican until the Trump Presidency convinced her that it was no place for anyone with Black or Latino ancestry, working brain cells, or an aversion to corruption.  As I recall from her attending Anaheim Democratic Club meetings, she was going to go independent, but eventually decided that she would register as a Democrat.

As a registered Democrat, Barnes applied for the endorsement of the Democratic Party of Orange County.  This seemed like a pretty easy call, because she’s the only Democrat in the race, and her opponent, Park Commissioner Ryan Balius, is sort of a garden variety Republican running on more money for the police and (by implication) trimming funding other city services.

But the Building Trades are for the Kleptocrats — Brandman and the non-Tait-faction Republicans, who recently directed federal Covid-19 money to go to promoting Disney or some such (but that’s a story for another time.)  That means that there’s money in writing an email to voters like this:

From: Melahat Rafiei <——-@gmail.com>
Sent: Monday, August 3, 2020, -:– PM
Subject: Do you know Helen Myers? Would you hire her?

The DNOC did not endorse Barnes.  It’s fair to credit this to Melahat’s letter — as well as whatever phone lobbying she and others from the Trades claque did before the vote.

I know Helen.  We are not close and we do not agree politically on much of anything except opposing kleptocrats.  She seems to have gone full-on Q-Anon during the Covid Era — and yes, that’s bad.  It’s also constitutionally protected free speech, which will become important in a moment.

First, let’s see the material that from Myers that Melahat sent around (all of the highlighting is hers):

On the left, you see a post by Lou Correa about Glori Montiel, the first graduate from Santa Ana ever accepted to Harvard, the first un-documented student to earn a Master’s degree from Harvard and the first to earn a Ph.D. from Claremont.  Helen apparently replied with an anti-immigrant screed — not directed at this skilled woman — of the “lavish benefits draw them here and we should serve the homeless first” genre.

Yeah, I find that noxious. But, it’s a policy-based disagreement rather than clear hate speech.  As such, it would not violate the Anaheim City Code as it applies to employees misbehavior.  Not everything we may dislike rises to that standard.

OK, here are the other relevant portions of the other two panels that Melahat copied and circulated from Myers’s FB page:

On the left we see a criticism of Rep. Correa for voting to allow transwomen to compete against ciswomen in athletic competitions.  This again is policy based and, despite the obnoxious (to my eyes) “pretending to be women,” this doesn’t even come close to being actionable hate speech.  On the right, Myers expresses angry that “dreamers” get free college, when her kids had to take out loans for theirs.  (I tend to think that the differences are based on merit, but, even if she’s mistaken, differs on budget policy priorities is not hate speech either.)

What I am saying is that, as a plaintiff’s employment lawyer, if a public employer fired someone over expressing these sentiment on their private Facebook page, or even Lou Correa’s public one, I would easily take a case* that she was terminated or demoted or otherwise retaliated against unjustly — and I’d feel good about it because these are the same principles that protect employees that I agree with.

*Helen, if you read this, I don’t want to represent you!

As I used the tell my clients: the law says that you can be terminated from an at-will job for a good reason — or even for no reason at all.  But it doesn’t allow you to be discriminated against for a bad reason — such as a protected status, or in retaliation for whistle-blowing or trying to organize a union — or for exercising a protecting right, such as voting, suing someone, or engaging in protected free speech not specifically defined by the employer as unacceptable (and there are limits on that too).

So let’s review:

• Helen Myers has some conservative political beliefs that Democrats find obnoxious
• Helen’s job with the City of Anaheim was not a policy job, but an administrative one
• Helen was referred to Denise Barnes for a half-time appointment due to her competence
• Contrary to Melahat’s reckless assertion, Barnes does not “take advice” from Helen
• Helen apparently has done good work in that position which wouldn’t justify termination
• Helen was not, I’m told, expressing these sorts of thoughts on Facebook when Barnes hired her
• Once Barnes had hired Helen, she could not fire her for her free speech so long as it did not violate the city’s rules for its employees
• If she had wanted Helen fired, she would have had to go to the City Manager, whose call it would be
• But to avoid a lawsuit, interference with Barnes’s work would have had to be shown
• Melahat faults Barnes for hiring someone previously who would later write obnoxious things
• Given that Barnes has no time machine, the clear implication is: Helen should have been fired.
• Firing Helen for her free speech unrelated to her job performance violates the law
• So, Melahat convinced the DPOC not to endorse Barnes because she didn’t break the law

That conclusion sounds pretty stark, but think it through — what was Barnes to do?  Come up with some sort of pretext to fire her instead of citing her Facebook posts?  That’s illegal too!

(The ironic thing — “ironic” if we pretend that Melahat actually cared about of the substance all of this rather than just doing a hit job — is that now Barnes would have trouble firing Helen even for what she sincerely believed to be pretty good cause. because after Helen cost her the DPOC endorsement a jury could be easily swayed to think that that was the real reason for the firing.)

In light of this analysis, I think it proper for DPOC to reconsider its decision not to endorse Barnes to the extent that Melahat’s blast email calling for an illegal action polluted the process.  (They meet next Monday.)

This isn’t the end of the analysis, though.  We need to discuss the “prima facie tort” — intentional interference in contract.  (There’s also intentional interference in prospective economic advantage, but that doesn’t apply here.  And read to the end to meet its cousin,)  To understand a tort — a non-criminal wrong — it’s usually best to go to the California’s standard CACI jury instructions.  So:

If Melahat’s email had been successful in inducing Barnes to wrongfully terminate Myers’s contract, it might also give rise to the following claim:

But that, of course, did not happen here — and so that is a story for a different time.

One thing seems clear, though: these facts are ugly, regardless of whether a tort claim is possible.  The DPOC presumably doesn’t want to be associated denying an endorsement to a candidate because of:

• the actions of a employee in a non-political position
• who could not be reasonably taken to speak for the officeholder
• who was engaging in constitutionally protected acts
• which does not violate any employee code of conduct
• which was completely separate from their work
• which started well after their hire, with someone
• which were not legitimate bases for discrimination in hiring
• which were not legitimate bases for adverse employment actions such as firing or transfer
• where the officeholder could not retroactively not have hired her nor fired her on this basis

It’s a juicy story!  I hope that DPOC will consider whether this improper attempt to pin Myers’s actions onto Barnes affected their judgment of whether to endorse. If they bring it up again (as I think is obviously merited) they can try to scrub Melahat out of their brains as best they can (and she should certainly be excluded from the call — and asked not to lobby anyone on this basis), and decide whether — without that unfair, irrelevant, and highly prejudicial information — they want the Democrat to win this race.   Or do they prefer the Republican … because he’s more likely to be Klepto friendly?

Reconsideration the endorsement is clearly the sensible and reputation-protecting thing to do — but, of course, the DPOC has surprised me before….