SunnyvaleRTC

October 21, 2003

SUBJECT: Review of Allegations of Misconduct by Vice-Mayor Timothy Risch and City Manager Robert LaSala

REPORT IN BRIEF

At the October 7^th, 2003 City Council meeting, Steve Fisk, president of the Public Safety Officers Association (PSOA) appeared during the Citizens to be Heard portion of the meeting to publicly charge that the Vice Mayor, in conjunction with the City Manager had violated provisions of the City Charter, the City Council Code of Conduct, and the City Council Code of Ethics. Mayor Julia Miller appointed an Ad-Hoc Subcommittee consisting of Councilmembers Fred Fowler, Manuel Valerio, and Jack Walker to investigate the allegations. Councilmember Fowler resigned from the Subcommittee on Sunday evening October 19th.

The subcommittee does not find misconduct under the City Charter, the Code of Conduct or the Code of Ethics that rises to a level requiring sanctions. It does find evidence of poor judgment on the part of the Vice-Mayor in the wording of his questions and poor internal procedures that should be modified to prevent the concerns that PSOA has raised.

BACKGROUND

At the October 7th City Council meeting, Steve Fisk, President of the PSOA, made comments and presented a letter alleging misconduct by both the Vice-Mayor and the City Manager. The misconduct centered around a Public Safety incident that occurred in the early morning, around 12:30 AM, of September 1, 2003.

The incident began with 911 reports of possible criminal activity, including fighting and vandalism to vehicles in and around downtown Murphy Avenue. Public Safety responded with police officers that closed down Murphy Ave to vehicle traffic and facilitated the early closure of the Forum nightclub.

The letter from the PSOA alleges that Vice Mayor Tim Risch, in response to a phone call from his stepdaughter, employed by the Forum nightclub on Murphy Ave, contacted the City Manager. The letter asserts that, as a result of that phone call, a number of actions occurred that potentially had detrimental impacts on Public Safety operations as well as officer morale.

The letter is contained in attachment A to this report.

At the October 7^th meeting, the Mayor appointed Councilmembers Fred Fowler, Manuel Valerio, and Jack Walker as an ad-hoc subcommittee to investigate the incident and charges made by Steve Fisk and contained in the letter from PSOA.

With Councilmember Walker serving as the Subcommittee Chair, the subcommittee met 4 times. The subcommittee closely examined the letter and interviewed PSOA President Fisk to determine precisely what was being charged. The committee then interviewed the City Manager, the Vice-Mayor and a number of Public Safety officers to attempt to clarify what actually transpired.

The subcommittee drew up an initial list of facts that were being alleged in the PSOA letter and attempted to establish if the facts were true and then if those facts were evidence of wrong doing on the part of the Vice-Mayor and/or the City Manager. The list provided the subcommittee a framework within which it could explore the events that occurred. The list was modified somewhat as the committee progressed.

The final list of facts that the committee derived from the PSOA accusations is contained in the minutes to the subcommittee meeting of October 20, 2003. The list also contains the determination that the subcommittee made concerning each alleged fact. Note that there was some disagreement between the Subcommittee members on those findings.

EXISTING POLICY

There are essentially three documents that govern the conduct of Councilmembers in the City of Sunnyvale as they conduct City business. The Sunnyvale City Charter lays out the legal basis for Council conduct while the Code of Ethics and the Code of Conduct represent Council policy and attempt to set a standard of conduct that a Councilmember is expected to apply.

There are several sections of the City Charter that appear to be relevant to the matter at hand. The ability for a Councilmember to ask questions related to City matters is detailed in Section 807:

“Section 807. Prohibition Against Councilmanic Interference. Neither the City Council nor any of its members shall order or request directly or indirectly the appointment of any person to an office or employment or his/her removal therefrom, by the City Manager, or by any of the department heads in the administrative service of the City. Neither the City Council nor any member shall give orders to any subordinates of the City Manager, either publicly or privately. The City Council and its members shall deal with officers and employees in the administrative service under the jurisdiction of the City Manager solely through the City Manager except:

(1) For a specific question from a member of the Council concerning a matter either pending before the Council or which the member intends to present to the Council, and which can be answered by furnishing routine information immediately available from the records of the officer or employee to whom it is directed, and which does not require the officer or employee either to discuss or express any opinion concerning any existing or proposed policy of the Council or the City Manager; or

(2) In connection with an investigation into the affairs of the City or the conduct of any City department or office which the City Council by the affirmative vote of at least four of its members has undertaken…..”

Additionally, the City Manager’s ability to conduct internal investigations is outlined in Section 802:

“Section 802. Powers and Duties. The City Manager shall be the chief executive officer and the head of the administrative branch of the City government. He/she shall be responsible to the City Council for the proper administration of all affairs of the City and to that end, subject to the personnel provisions of this Charter, he/she shall have power and shall be required to:

…

(5) Make investigations into the affairs of this City, or any department or division thereof, or any contract, or the proper performance of any obligation running to the City;

…”

The Code of Ethics outlines the appropriate behavior for Councilmembers. There are a number of sections, which seem to apply in this situation:

“3. Conduct of Members

The professional and personal conduct of members must be above reproach and avoid even the appearance of impropriety. Members shall refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of other members of Council, boards and commissions, the staff or public.

And:

“8. Conflict of Interest

In order to assure their independence and impartiality on behalf of the common good, members shall not use their official positions to influence government decisions in which they have a material financial interest, or where they have an organizational responsibility or personal relationship which may give the appearance of a conflict of interest.”

And:

“14. Policy Role of Members

Members shall respect and adhere to the council-manager structure of Sunnyvale city government as outlined by the Sunnyvale City Charter. In this structure, the City Council determines the policies of the City with the advice, information and analysis provided by the public, boards and commissions, and City staff.

Except as provided by the City Charter, members therefore shall not interfere with the administrative functions of the City or the professional duties of City staff; nor shall they impair the ability of staff to implement Council policy decisions.”

And finally:

“16. Positive Work Place Environment

Members shall support the maintenance of a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City. Members shall recognize their special role in dealings with City employees to in no way create the perception of inappropriate direction to staff.”

The Code of Conduct tries to set a standard of Conduct for each Councilmember. Relevant sections include:

“• Treat all staff as professionals
Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected. Poor behavior towards staff is not acceptable.”

“• Limit contact to specific City staff
Questions of City staff and/or requests for additional background information should be directed only to the City Manager, City Attorney, Assistant City Manager, or Department Heads. The Office of the City Manager should be copied on any request, except those to the City Attorney.

Requests for follow-up or directions to staff should be made only through the City Manager or the City Attorney when appropriate. When in doubt about what staff contact is appropriate, Councilmembers should ask the City Manager for direction. Materials supplied to a Councilmember in response to a request will be made available to all members of the Council so that all have equal access to information.”

“• Do not disrupt City staff from their jobs
Councilmembers should not disrupt City staff while they are in meetings, on the phone, or engrossed in performing their job functions in order to have their individual needs met.”

“• Inappropriate Staff Behavior
Councilmembers should refer to the City Manager any City staff or to the City Attorney any City Attorney’s staff who do not follow proper conduct in their dealings with Councilmembers, other City staff, or the public. These employees may be disciplined in accordance with standard City”

DISCUSSION

Essentially, the charges and concerns from PSOA cover two distinct issues for the event. The first involves the initial phone call that the Vice-Mayor made to the City Manager in the early morning of September 1^st. The second involves the subsequent list of questions that the Vice-Mayor submitted to the City Manager and both the tone of the questions and a perceived violation of the Peace Officers Bill of Rights.

1. Phone Call of September 1^st.

The phone call to the City Manager from the Vice-Mayor is clearly within the language of the City Charter, which allows any Councilmember to ask a question of the City Manager concerning the operations of the City of Sunnyvale. In fact the Charter specifically states that:

“The City Council and its members shall deal with officers and employees in the administrative service under the jurisdiction of the City Manager solely through the City Manager…”

There are two exceptions to this rule outlined in the charter. The first allows a Councilmember to ask a staff member a question:

“which can be answered by furnishing routine information immediately available from the records of the officer or employee to whom it is directed, and which does not require the officer or employee either to discuss or express any opinion concerning any existing or proposed policy of the Council or the City Manager…”

The second exception involves an investigation authorized by at least four members of the City Council. This inquiry itself would in an example of this second exception.

The Code of Conduct further clarifies the point of contact for a Councilmember:

“Requests for follow-up or directions to staff should be made only through the City Manager or the City Attorney when appropriate.”

An argument could be made that the lateness of the hour could be considered unreasonable, considering the primary function of the Council is to make policy decisions. The City Manager has not raised any explicit objection with the lateness of the phone call, and the call was concurrent with the events occurring in the downtown, so the argument seems moot.

The Council may wish to consider setting some reasonable guidelines in the Code of Conduct for when it is appropriate for a Councilmember to contact any member of staff, including the City Manager and the City Attorney.

The phone call from the Vice-Mayor led to a chain of events which started with a subsequent phone call from the City Manager to the Director of Public Safety who then called Dispatch and requested a call back from the Officer in charge in the downtown. The Lieutenant on scene did call back the Director who discussed the event unfolding in the downtown and which he relayed up to the City Manager. The City Manager made an independent decision to call the Vice-Mayor back and relay this information to him. The Vice-Mayor stated during his testimony that he had not requested nor did he expect the call back until the next morning, at the earliest.

Testimony from the Lieutenant on scene indicated that at no time during his conversation with the Director was the Vice-Mayor discussed as the source of the Chief’s call. However, the Lieutenant did state that he had witnessed a cell phone conversation between the Vice-Mayor’s stepdaughter and a manager of the Forum nightclub and an unknown individual on the other end whom he surmised was the Vice-Mayor. As a result, the officers on the scene concluded that the unusual call from the Director was a direct result of a phone call from the Vice-Mayor and ultimately felt that they were being unfairly placed under the microscope during what they considered a routine operation. Several Officers stated before the subcommittee that this type of active scrutiny by a Councilmember during an active, on-going operation creates a morale issue.

The issues here are complex. There is no testimony to suggest that the Vice-Mayor or the City Manager were aware that the officer’s had observed the cell phone conversation and were nervously expecting a phone call, so it is unreasonable to argue that the City Manager was aware of the potential impact his call would have. The Charter clearly allows the City Manager to make the phone call as it is his responsibility to:

“(5) Make investigations into the affairs of this City, or any department or division thereof, or any contract, or the proper performance of any obligation running to the City;”

Part of the officer’s concerns involved an incident earlier in the week, also involving the Forum nightclub and also resulting in a phone call from the Chief that had originated with the Vice-Mayor. The PSOA, along with the officers themselves expressed concern that a pattern was developing that would result in a call from City Management every time an issue arose concerning the Forum nightclub.

As far as the Vice-Mayor is concerned, the Code of Ethics has language that addresses this concern in two ways:

““8. Conflict of Interest

And:

“16. Positive Work Place Environment

The Code of Conduct also contains language that seems to address this situation:

The unfortunate aspect of this situation is that neither the Vice-Mayor nor the City Manager was aware that officers were concerned and expecting a phone call from City Management as a result of a witnessed cell phone conversation so it is hard to argue that either was aware of the potential disruption to the operation occurring on Murphy Avenue. This was compounded by subordinates who felt compelled to find answers to the Vice-Mayor’s questions with a sense of urgency that the Vice-Mayor himself was not expecting.

While the Council legally cannot prevent a Councilmember from asking questions of the City Manager, it can set some guidelines that give Council and, more specifically, staff guidance for when an immediate response is appropriate and when it is not.

The Council may wish to modify the Code of Conduct to indicate that responses to operational or policy questions raised outside of normal business hours should be expected no earlier than the next business day. Moreover, any question concerning ongoing operations cannot be answered until it is safe and practical to do so and does not jeopardize operational integrity.

2. Subsequent Inquiry by the Vice-Mayor

There were several follow-up conversations where the Vice-Mayor tried to obtain information concerning the events in the early morning of September 1^st and the resulting police response. More importantly, he attempted to resolve apparent eyewitness testimony from individuals connected with the Forum nightclub that contradicted information being provided from City staff.

In order to clearly specify what exact information was being sought, the Vice-Mayor submitted a list of 9 multiple part questions with some prefacing remarks. These were delivered to the City Manager on September 3^rd and subsequently passed down to line staff for response.

These questions, coupled with the concerns already raised over the late night phone calls to Public Safety, raised concerns with PSOA leadership as well as with the officers tasked with providing the answers. Concerns were specifically related to whether asking these questions, even in an informal setting could lead to a disciplinary action and would cause a violation of the Peace Officers Bill of Rights. There were also concerns that the questions themselves constituted outright charges of misconduct.

The subcommittee looked very carefully at the questions themselves. While most of the questions are pointed and looking for comments on specific aspects of what happened in the downtown, the Vice-Mayor noted in his preface that he was trying to reconcile some “asserted inaccuracies” contained in the reports that the Council had received, based on conversations he had with “management of the Forum nightclub”. In question number 4, the Vice-Mayor points out that “all levels of the Forum management” insisted that Public Safety officers “ordered” the nightclub to close early. The reports from DPS state that they had only “requested” the early closure and that the Forum had agreed. Vice-Mayor’s question simply states: “I request that you reconcile this discrepancy.”

The subcommittee in examining the questions did determine that the overall tone of the Vice-Mayor’s questions does suggest that he was exploring the possibility of an overreaction by the Department of Public Safety to the events.

Director Bakin rewrote some of the questions, removing most of the clarifying information from the Vice-Mayor and emailed them to Captain Fortin on September 4th. Director Bakin emailed the City Manager to indicate that he would forward on a response by September 11^th. Captain Carlyle supplied responses to the questions to Director Bakin who forwarded them on to the City Manager on September 9^th.

PSOA President Steve Fisk transmitted to Director Bakin a letter raising concerns with the process on September 7^th.

It was clear from the testimony that the City Manager and the Director of Public Safety were not looking at this inquiry as anything other than simply informational. There were explicit discussions that there was no intent to explore this for possible disciplinary actions against officers. Director Bakin testified that he had indicated to the officers on scene that he was in full support of their actions on the morning of September 1^st and had maintained that position. When the issue of the Peace Officers Bill of Rights was raised, however, the City Manager testified that he advised the Director to seek guidance from the City Attorney but the Director did not indicate that he did.

The Vice-Mayor, on September 11^th, sent a memo to the City Attorney requesting analysis of the situation and any further information that might be available. He attached his original set of questions to the memo and copied the City Council.

The City Attorney’s response indicated a belief that there were issues implied in the questions that would have made it prudent to follow the procedures required under the Peace Officers Bill of Rights (POBR).

There are a number of issues here. Why wasn’t POBR procedure followed, given that there were questions of accuracies? Was it appropriate for the Vice-Mayor to ask questions that clearly implied that eyewitnesses were contradicting information being provided him from staff? Was the Vice-Mayor merely representing the concerns of a 3^rd party, in this case the Forum nightclub and is this appropriate behavior?

The answer to the first question is clearly that Senior Staff did not feel that the questions would lead to any disciplinary action so they didn’t feel it necessary to follow POBR. Given the City Attorney’s (and PSOA’s) opinion, it suggests that the process needs to be improved. More careful attention needs to paid to questioning of Public Safety Staff given that there is the perceived potential for a POBR issue.

The Council may wish to give direction to the City Manager to review the process by which the Vice-Mayor’s questions were handled in Public Safety and determine what changes can be made to prevent this situation from occurring again. The Council could also request a report back detailing the changes.

The appropriateness of the Vice-Mayor’s questions is a separate matter. The Code of Conduct lays out clear direction:

The Vice-Mayor followed proper procedure by sending his questions to the City Manager. The questions imply a challenge to the veracity of City Staff. This, however, is not uncommon for Councilmembers. The Vice-Mayor could have been more explicit, perhaps having a discussion with the City Manager concerning the potential for finding fault with staff. This did not occur. The City Manager’s response does not suggest that he perceived the implied challenge contained in some of the questions.

The subcommittee recommends that the Council look at establishing additional Policies outlining processes to be followed when Councilmembers ask questions pertaining to various types of incidents so that citizen complaint procedures and employee rights such as the Peace Officers' Bill of Rights are adhered to. The Policies should include better checks and balances to determine if a line of questioning is more appropriately treated as a citizen complaint to be handled by internal procedures.

The next issue to consider is whether the Vice-Mayor was representing a 3^rd party interest in this matter and, if so, was it appropriate. The Code of Ethics discusses this as:

“8. Conflict of Interest

This provision is grounded in a potential financial interest, which there is no evidence that the Vice-Mayor has. A personal bias may exist but that is not the same thing. It is difficult to say, in this case, where the Vice-Mayor’s appropriate role to explore the downtown events ends and his advocacy of a family member or a business begins. There is just no way to determine it on a factual basis. The issues he discusses in his questions are legitimate territory for a Councilmember under the Charter and the Codes of Conduct and Ethics.

It is the subcommittee’s conclusion that the Vice-Mayor, while not violating the provisions of the Charter, the Code of Ethics or the Code of Conduct, showed poor judgment in his wording of some of his questions. In questioning the accuracy of the downtown report, he was suggesting that there was possible wrong doing on the part of Public Safety Department. If he intended that charge then he should have explicitly made the charge and discussed it in that context. If he didn’t intend the charge then he should have been more careful with his questions.

It is recommended that the following passage be added to the Code of Conduct to address some of the issues brought forward by PSOA: “A Councilmember has the right (per City Charter) to make an inquiry (ask questions) regarding operations (including Public Safety) in order to better understand current or future policy implications.”

The recommendation of the Subcommittee is that no sanctions be taken against the City Manager. He was acting within the parameters of his office as outlined in the City Charter. He is authorized to investigate at his discretion and there is no restriction on how or why he can initiate that investigation. The only criticism that the subcommittee can find with the City Manager is that he should have ensured that his staff fully explored the possibility of the need for POBR procedures before they began their investigation.

Similarly, the recommendation of the Subcommittee that no sanctions be taken against the Vice-Mayor because no violations of the City Charter, the Code of Ethics or the Code of Conduct occurred. While other Councilmembers might question his judgment in this matter, that is not substantive enough to base any punitive actions on. Moreover, it would, ironically, be create a chilling effect on future Councilmembers who, out of favor with a majority of his/her colleagues, would not feel comfortable requesting detailed information from staff for fear of a backlash based, not on clearly outlined guidance, but on political factors.

FISCAL IMPACT

There is no direct Fiscal Impact. Any process changes or improvements that result from Council Actions could incur some undetermined costs.

PUBLIC CONTACT

The Subcommittee met on:

· Thursday, October 16^th at 7:00PM

· Saturday, October 18^th, at 8:00AM

· Sunday, October 19^th, at 5:00PM

· Monday, October 20^th, at 7:00PM

The Subcommittee held public meetings only and did not take any public comment. The Subcommittee adopted an informal meeting process and did respond to questions of clarifications from those present, including the public. The subcommittee also allowed comment from legal representatives of both the PSOA as well as the Vice-Mayor in order to facilitate the inquiry.

The meetings were noticed in accordance with legal requirements. In order to allow the Vice-Mayor to be questioned by the entire subcommittee, the Saturday and Sunday were noticed as special meetings of the City Council to acknowledge the reality of a Council quorum being present.

The committee interviewed the following individuals formally:

· City Manager Robert LaSala

· Director of Public Safety Ernie Bakin

· PSOA President Steve Fisk

· Capt. Glenn Fortin

· Capt. Tim Carlyle

· Lt. Shawn Ahearn

· Vice-Mayor Tim Risch

Additional comment was obtained from a number of members of the Public Safety department who were also present.

ALTERNATIVES

Take no action
Determine that the Vice Mayor and/or the City Manager violated the City Charter and refer the matter to the City Attorney and/or the Santa Clara County District Attorney for appropriate action.
Determine that the Vice-Mayor violated the Code of Ethics or the Code of Conduct and take appropriate punitive actions
Determine that there were process problems in this matter and direct the City Manager to evaluate and make appropriate alterations to existing processes for handling Council questions of staff as discussed in the report and listed below:

Determine that no violations were found under the City Charter or the Codes of Conduct and Ethics but make additions or corrections to the Code of Ethics or Code of Conduct that give clearer direction to Councilmembers and staff concerning their responsibilities including:

Take other action as the Council determines is appropriate.

RECOMMENDATION

The Subcommittee recommends alternative 4 & 5.

Prepared by:

Jack Walker
Councilmember

Reviewed by:

Manuel Valerio
Councilmember

Attachments

Letter from Steve Fisk, President of PSOA, outlining allegations (.pdf format)
List of Facts to be Determined by the Subcommittee (.pdf format)
Memo from City Manager to Subcommittee with Related Documentation (.pdf format)
Memo from Vice-Mayor to City Attorney (.pdf format) / Memo from City Attorney in Response . (.pdf format)
Memo from PSOA to Director of Public Safety concerning questioning of Lt. Shawn Ahearn (.pdf format)
Miscellaneous emails between Subcommittee and staff related to meeting operations.
Minutes of Subcommittee meetings
10-16-03
10-18-03
10-19-03
10-20-03