CITY COUNCIL Staff Report
Meeting: May 2, 2023
Subject
Consider a report regarding the review of potential violations of the City of Cupertino Municipal Code and City policies regarding Council- and commissioner-staff relations.
Staff and Commissioner-Staff Relations (“Report”).
Recommended Action
Receive confidential Report; consider waiving attorney-client privilege to allow for the public release of the Report; and consider further responses to Report.
Reasons for Recommendation
On December 19, 2022, the Santa Clara County Civil Grand Jury issued a report entitled, "A House Divided: Cupertino City Council and City Staff” (Attachment A).The Grand Jury report resulted from multiple complaints concerning the conduct of the City Councilmembers toward City management and staff. According to the December 2022 Grand Jury report, the Civil Grand Jury reviewed allegations that (1) Councilmembers interfered in the day-to-day operations of the City; (2) Councilmembers routinely berated and belittled presentations made by the City staff during the City Council meetings; and (3) certain Councilmembers gave direct work assignments to City employees, contrary to the requirements of the Council-Manager form of government as set forth under the Cupertino Municipal Code.
Following its deliberations, the Grand Jury released a report that included four findings, three of which are relevant to the item pending before Council.
Finding 1: The City has a culture of distrust between the Councilmembers and City staff that is creating dysfunction.
Finding 2: The dysfunction prevalent between the City Council and City staff has negatively impacted City operations, including the continuing loss of skilled and experienced personnel. The City has a reputation of having a difficult work environment, making recruiting of highly qualified applicants difficult.
Finding 4: A comprehensive Code of Ethics not only provides guidance and baseline standards for ethical behavior, if includes sanctions and consequences for deviations from the stand. The City's Ethics Policy is generic and lacks enforcement provisions and therefore fails to provide a framework to address ramifications for policy violations.
On February 21, 2023, the City Council considered the Grand Jury report and approved the City’s response to the report pursuant to Penal Code section 933 (Attachment B). As part of the City’s response, the City Council directed the City Attorney’s Office to investigate and report back on violations of the Municipal Code with respect to Council-staff and commissioner-staff relations. The City Attorney’s Office retained Linda Daube, Esq. to conduct an independent investigation of potential violations of the Municipal Code and related violations of City policies. The City Council will be provided with a confidential, attorney-client privileged Report regarding the investigation prior to the City Council meeting.
Because the report is confidential and privileged, the public release of the Report would require waiver of the attorney-client privilege. A waiver of privilege requires a majority vote of the Council. Should Council choose to waive privilege, the City Attorney’s Office recommends that Council limit the waiver to the Report itself and specify that it does not extend to the subject matter of the Report or any underlying materials considered during the investigation. A waiver would not permit the disclosure of confidential personnel information. The Council may also consider further responses to the Report.
Sustainability Impact
Not applicable.
Fiscal Impact
No fiscal impact.
California Environmental Quality Act
Not applicable.
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Prepared by: Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Grand Jury Report – "A House Divided: Cupertino City Council and City Staff” B – City of Cupertino Response to Grand Jury Report
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CITY ATTORNEY’S OFFICE
CITY HALL
10300 tORRE AVENUE• Cupertino, CA 95014-3255
Telephone: (408) 777-3195 • FAX: (408) 777- 3366
EMAIL: [email protected]