Cupertino City Council
November 7, 2023

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TABLE OF CONTENTS
GLOSSARY AND ABBREVIATIONS ...................................................................................... 2 SUMMARY ................................................................................................................................... 3 BACKGROUND ........................................................................................................................... 4 METHODOLOGY ....................................................................................................................... 6 INVESTIGATION ........................................................................................................................ 7 CONCLUSION ........................................................................................................................... 14 FINDINGS AND RECOMMENDATIONS ............................................................................. 15 REQUIRED RESPONSES ......................................................................................................... 17 APPENDIX A .............................................................................................................................. 18 APPENDIX B ............................................................................................................................. 32 APPENDIX C .............................................................................................................................. 47 REFERENCES ............................................................................................................................ 50 430
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GLOSSARY AND ABBREVIATIONS
General Law City A city whose government structure and powers are defined by the general law of the state. This
is in contrast with a charter city whose
government structure and powers are defined
by a city charter.

California Public Records Act The California Public Records Act (Government Code section 6250 et seq.)
allows the public to request access to
government records, unless such records are
exempt by law from disclosure.

Councilmanic Interference Councilmanic Interference refers to a councilmember’s attempts to thwart the
principles of the council-manager form of
government management.
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SUMMARY
The 2022 Santa Clara County Civil Grand Jury (Civil Grand Jury) received multiple complaints concerning the behavior of the City of Cupertino (City) councilmembers toward City staff. The essence of these complaints focused on an adversarial relationship existing between the Cupertino City Council (City Council) on the one hand and City management and staff on the other.

Complainants alleged: (1) councilmembers interfered in the day-to-day operations of the City; (2) councilmembers routinely berated and belittled presentations made by City staff during City Council meetings; and (3) certain councilmembers gave direct work assignments to City employees, thwarting the requirements of the Council-Manager form of government.

Throughout its investigation, the Civil Grand Jury learned of the existence of distrust and fear among City staff of councilmembers. Generally, each side took issue with the other, laying blame back and forth over multiple complaints. The Civil Grand Jury was provided with repeated examples of councilmembers behaving inappropriately toward the City Manager and staff including, but not limited to, routine disrespect and the inclination to doubt the accuracy of the City staff’s work. The Civil Grand Jury found that the behavior by certain councilmembers towards City staff directly violated the City’s ordinances relating to the council-manager form of government under which the City operates.

Furthermore, high turnover in key management and leadership positions within City government has caused the City to lose employees with significant capabilities and experience and, in some cases, leave key positions unfilled. These issues adversely impact the City’s ability to best serve the community and effectively operate the City. Additionally, the City’s designated Internal Auditor, Moss Adams LLP, identified numerous areas where the City had critical deficiencies, including that the City has weak or nonexistent internal financial controls and inadequacies in existing operating policies and procedures. Many of these deficiencies have existed for several years and pose potentially serious future operating and financial risks to the City as it pursues significant growth projects. The City Council’s Audit Committee has implemented a work plan designed to address identified areas of fiscal risk and weak or absent internal controls, but there is no evidence in City Council meeting minutes that the plan has been vetted by the City Council. 432
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BACKGROUND
Governance
The City is a general law city whose form of government is governed by California Government Code sections 36501 to 36525. General law cities, while complying with state mandates, may adopt ordinances that provide specific requirements related to the operation of the city. To this end, the City of Cupertino Municipal Code (“Cupertino Municipal Code”) includes the following provisions:
(1) Chapter 2.48 – Departmental Organization
(2) Chapter 2.17 – City Council/City Staff Relationships The City has chosen to operate under the Council-Manager form of government, which separates the operational responsibilities assigned to the City Manager from the governance and oversight responsibilities assigned to the Mayor and Councilmembers. Cupertino Municipal Code chapters

2.17 and 2.48 explicitly establish the roles of the City Manager, certain key staff, and the councilmembers.

Pursuant to Cupertino Municipal Code section 2.17.010, councilmembers (including the mayor) are prohibited from attempting to influence City staff’s administrative responsibilities. :

Under the Council/Manager form of government neither the City Council, nor individual Council members, can give orders to any subordinates of the City Manager. The City Manager takes his or her orders and instructions from the City Council only when given at a duly held meeting of the City Council. No individual council member can give any orders or instructions to the City Manager. [Emphasis added]
Cupertino Municipal Code section 2.17.032 expressly states that “Individual Council members shall not attempt to influence staff decisions, recommendations, workloads, and schedules, and department priorities without prior knowledge and approval of the City Council.” As Cupertino Municipal Code section 2.17.020 provides, the intent and purpose of this requirement are to ensure that control and direction of the City are maintained by the City Council as a whole as opposed to individual councilmembers; and to protect City staff from “undue influence” from individual councilmembers so that City staff can execute priorities given by management and the City Council as opposed to individual councilmembers. Further, the City Council – as opposed to individual City councilmembers – retains “the full power to accept, reject, amend, or otherwise guide and direct staff actions, decisions, recommendations, workloads and schedules, department priorities, and the conduct of city business” through the City Manager. (Section 2.17.031) Councilmanic Interference
Councilmembers engaging in the type of conduct outlined above are committing “councilmanic interference.” Councilmanic interference is a violation of the Council-Manager form of government, as established by Cupertino Municipal Code section 2.28.50:
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The City Council and its members shall deal with the administrative services of the City only through the City Manager, except for the purpose of inquiry, and neither the City Council nor any member thereof shall give orders to any subordinates of the City Manager.

The City Manager shall take his or her instructions from the City Council only when given at a duly held meeting of the City Council, and no individual councilperson shall give any instructions to the City Manager.

While councilmembers are prohibited from giving orders to subordinates of the City Manager, Cupertino Municipal Code section 2.17.034 expressly allows councilmembers to get information from City staff, which does not qualify as councilmanic interference:

Individual Council members as well as the City Council as a whole, have complete freedom of access to any information requested of staff (except information which is otherwise protected by law from disclosure) and will receive the full cooperation and candor of City staff in being provided with any requested information. Information sought by an individual council member may, at the discretion of the City Manager, be automatically provided to the City Council as a whole. In exercising this discretion, the City Manager will consider whether the information is significant or new or otherwise not available to the Council or is of interest to the Council.

Further, Cupertino Municipal Code section 1.12.010 makes it unlawful for any person to violate a mandatory provision of the code, which can be a misdemeanor. Section 1.12.010 states:

It is unlawful for any person to perform any act that is prohibited, made or declared to be unlawful or an offense by the code, or to violate any provision or fail to comply with any of the requirements of this code. A violation of any provision or failing to comply with any of the mandatory requirements of the code shall constitute a misdemeanor, except where the violation is specifically declared to be an infraction. 434
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METHODOLOGY
The investigation process undertaken by the Civil Grand Jury included interviews with councilmembers, past and present City officials, and the Audit Committee of the City Council.

Additionally, the Civil Grand Jury watched recordings of several City Council meetings; researched and reviewed the state statutes governing the structure and operation of general law cities; researched and reviewed relevant provisions of the Cupertino Municipal Codes that describe City operations and City Council structure and responsibilities; and engaged in research that produced numerous documents supporting the findings and recommendations in this report.

The investigation focused on four critically important areas: (1) councilmanic interference by councilmembers with City management and staff; (2) operational and fiscal risk management concerns; (3) behavior dysfunction leading to failures in governance; and (4) the lack of an Ethics and Code of Conduct Policy with enforcement provisions. As a result of this investigation, the Civil Grand Jury developed several findings and recommendations to address the identified areas of dysfunction.
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INVESTIGATION
Councilmanic Interference and Mutual Distrust
The Civil Grand Jury learned that City staff are routinely criticized, ridiculed, and embarrassed during public meetings, leading City staff not to trust councilmembers. A careful review of several recorded City Council meetings confirmed the existence of adversarial and dysfunctional behavior toward City staff exhibited by some City councilmembers. At the same time, it was also noted that some councilmembers have been concerned about the difficulty in obtaining accurate and timely information on City operations considered important in performing City Council governance and oversight responsibilities. The dysfunctional relationship between City management and some councilmembers has created an environment of distrust.

As described above, there is a difference between ordering or directing City staff – which qualifies as councilmanic behavior – and requesting information, which is expressly permitted by the Cupertino Municipal Code. The Civil Grand Jury heard multiple complaints and various examples of conduct that councilmembers viewed as permissible information requests, but City staff believed were councilmanic interference. Councilmembers do communicate directly with City staff seeking information. This is permissible; however, individual councilmembers cannot, in this context, influence staff decisions, workloads, schedules, or department priorities without prior knowledge and approval of the City Council because that kind of conduct qualifies as councilmanic interference. It is easy to see how a direct request for information from a councilmember might have the impact of influencing workloads, requiring staff to work overtime, or readjusting staff priorities, which is the concern of City staff. It is also possible that the councilmember might not know or appreciate the impact of the information request.

Thus, there is a lot of gray area between information requests and information requests that have a more councilmanic spirit. As the Civil Grand Jury learned, some of the councilmembers’ requests have been voluminous or come on the heels of the councilmembers’ specific dissatisfaction with a staff report on a certain subject and, thus, appear punitive as opposed to a genuine information request. Some councilmembers, not getting the information they need, have resorted to submitting Public Records Act requests to the City Clerk to obtain specific information from City staff. This is unusual because Public Records Act requests are commonly made by the public, not by councilmembers. It is easy to see how City staff view this practice as an aggressive tactic by the councilmembers. On the other hand, some City staff have resisted individual councilmembers’ direct requests for detailed information or reports that they believe should have come through the City Manager and represent councilmanic interference. This is also frustrating for the councilmember who is charged with governing and must be informed to make important decisions about the direction of the City. Parsing out who is right or wrong in this landscape does not solve the core problem of distrust and resulting dysfunction. 436
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The Civil Grand Jury learned of a few instances of more blatant councilmanic conduct.

Councilmember Kitty Moore questioned a subordinate of the City Manager about charges the staff member incurred on a City credit card. The staff member presented an explanation of the charges.

Councilmember Moore did not accept the explanation and requested copies of the documentation to pursue her own investigation. Any irregularities or policy violations related to City credit use are squarely within the purview of the City Manager. Direct councilmember involvement violates the City Municipal Code prohibiting councilmembers from involving themselves in the day-today operations that are clearly the responsibility of the City Manager.

The Civil Grand Jury also learned through different sources that Mayor Darcy Paul directed a City staff member to assist with an event. The Mayor asserted that the City staff member had “volunteered” to help during a ribbon-cutting ceremony and therefore, such assistance did not amount to a directive as prohibited by City ordinance. The Mayor failed to recognize the powers at play--the inherent difference in stature--when a councilmember asks staff to attend functions outside their normal work responsibilities. On two separate occasions, Mayor Paul asked other City staff to work at events that were not part of official City business and occurred after working hours. For one such event, the Mayor made the request by personally calling the staff members.

Such requests by councilmembers should be made through the City Manager.

Another source of distrust between the City Council and City staff involves renovations to City Hall. Further, City staff voiced concern that their workplace, City Hall, had not been renovated and seismically improved. Although the 2015 City Council allocated funds for the renovation, the monies were subsequently redirected to expand the City Library. Certain staff regard the present City Council’s unwillingness to fund the renovation as confirmation that their health and safety concerns are not a priority.

Trust between the City Council and the City Manager and staff is essential to the effective operation of the City. The Civil Grand Jury investigation and interviews revealed that little trust exists between the City’s staff and councilmembers. In many instances the distrust is mutual. The combination of poor relationships and strained communication between these two groups has created several critical problem areas in the functioning of City government and the ability of the City Council to provide the leadership and meaningful oversight that is the core of good governance.

Failure to Produce Treasurer’s Report
Earlier this year, the Civil Grand Jury investigated the lack of financial reporting as mandated by state law. In a separate report entitled “Show Me the Money: Financial Transparency Needed,” the Civil Grand Jury responded to a complaint that the City was in breach of its ordinance to produce monthly treasurer’s reports. During the investigation of the missing treasurer’s reports, the City Manager resigned unexpectedly in June of 2022. 437
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Cupertino Municipal Code section 2.24.030 (“Monthly Reports”) states:

The Treasurer shall make monthly reports which conform to the requirements of [California] Government Code Section 41004. Said reports shall be delivered to the City Council, the City Manager and made available for review by such other persons who may so request.

Despite the legal requirement to comply with Government Code section 41004, no City staff member was preparing and delivering a monthly treasurer’s report. When this issue was raised during an Audit Committee meeting, the rationale provided by City staff was that many of the surrounding cities do not comply with this requirement. Absence of the monthly treasurer’s report impaired the councilmembers’ ability to fully exercise fiscal oversight.

It took a few months for City staff to comply with the law. The Civil Grand Jury investigation into this issue revealed that the City finance department is now producing the treasurer’s report required under California Government Code section 41004 and Cupertino Municipal Code section

2.24.030. Nonetheless, the City staff’s disregard of this City ordinance in the past added to the perception of City Council that staff was not competently fulfilling their job responsibilities.

Fiscal and Risk Management Issues
Fiscal and financial risk management oversight is a key area of responsibility of every city council.

Good governance requires that city councils routinely review the financial operations of the city, identify areas of weakness and/or risk, and oversee effective policies and procedures for implementation by city managers. Addressing financial issues in a timely manner is an essential component of a city council’s exercise of its oversight responsibilities.

Operationally, the scheduled and repetitive use of internal audits is an effective tool for the discovery of financial management and internal control issues. Audits provide the best means of measuring consistent progress in mitigating weaknesses and identifying gaps through implementation of council-directed and -approved policies and procedures designed to address any identified issues.

The Civil Grand Jury learned of the existence of a 14-year embezzlement scheme by a former City staff member of almost $800,000 that purportedly occurred between 2000 and 2014. Further investigation revealed that after the discovery of the embezzlement scheme in 2014, no financial policy or procedural changes were developed and implemented by the City.

The City contracts with Moss Adams LLP (Auditor) to serve as the City’s Internal Auditor.

Leading up to December of 2020, the Auditor undertook a comprehensive risk assessment evaluation of all departments and their respective functions across the entirety of the City’s organization. Although their audit report identified several areas of concern, including internal financial controls, the Civil Grand Jury learned that the City did not take any appreciable steps to 438
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remedy these concerns. The City Council did, however, call for a more detailed audit of financial operations and risk. That led to another audit in Spring 2022, which resulted in a report entitled “City of Cupertino: Fiscal Policy Inventory and Gap Analysis,” dated May 5, 2022. That report was presented by the City staff to the Council on July 19, 2022. The audit report included in its findings a policy and procedure work plan covering areas of identified financial risk. Also included in the Auditor’s findings was a detailed “Summary of Recommendations” referencing high-risk areas that require immediate City Council attention and remediation. The following chart, prepared by the Auditor, sums up the deficiencies by area, including eight areas that the Auditor described as high risk:

Figure 1. Prioritized Policies and Procedures Work Plan The full report is attached as Appendix A.

In sum, two separate audit reports dated December 2020 and May 2022, both commissioned by the City, included sets of recommendations to strengthen operating policies, procedures, and 439
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internal controls. The Civil Grand Jury learned that few, if any, of those recommendations have been implemented for reasons that remain unclear. Past and present key staff offered no clarity on how the City addressed or intends to address the well-developed Moss Adams internal audit recommendations.

The Civil Grand Jury learned that the City Council’s Audit Committee has been meeting and discussing the audit reports. The Civil Grand Jury investigated the functions and responsibilities assigned to the Audit Committee, which exists as a subcommittee of the City Council. These functions and responsibilities are identified on the City of Cupertino website as follows (also refer to Cupertino Municipal Code section 2.88.100):
• To review the annual audit report and management letter • To recommend appointment of internal/external auditors • To review the monthly Treasurer’s Report
• To recommend a budget format
• To review City investment policies and internal controls of such policies • To review internal audit reports
• To review quarterly Fraud, Waste, and Abuse Program reports Audit committee operating procedures require members, among other responsibilities, to assess the internal audit findings and recommendations and submit their analysis and recommendations to the City Council for discussion and action. The Auditors attend and participate in the City Council Audit Committee meeting, and their reports, findings, and recommendations are provided directly to the Audit Committee for discussion and development of recommended actions.

However, it remains unclear to the Civil Grand Jury whether the City is addressing the fiscal risks identified in the May 5, 2022, Auditor report. The Audit Committee meets regularly and the minutes reflect that there is a workplan. In May 2022, the status of the Audit Committee’s work was on the City Council agenda, but that meeting was later canceled. The Civil Grand Jury could find no evidence in the City Council minutes that the City Council had discussed the risk reduction work plan or had authorized the City Manager to proceed with its implementation. This is concerning because the financial control issues have long been known to the City and yet questions directed to councilmembers, Audit Committee members, and relevant City staff failed to provide assurance that the City Council has prioritized the efforts of the Audit Committee or evaluated and approved a work plan to address the audit deficiencies.

City Staff Turnover
The Civil Grand Jury learned of an abnormally high turnover rate among City staff, including key top staff positions. For example, half of the Planning Division and 60 percent of senior management staff have left the City since January 2022. The City has had four city managers from 440
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June 2019 to the present. The most recent City Manager appointment took place on August 29, 2022. The high turnover in key management positions increases the risk of operational errors and oversights. It also reduces the level of institutional memory and process knowledge that facilitates the efficient and timely flow of work throughout the City’s several departments.

High turnover also brings in new employees, some of whom are unlikely to be familiar with the City’s specific operational policies and procedures and therefore require higher levels of training and closer supervision to become proficient in their work assignments. Several of the interviews undertaken by the Civil Grand Jury confirmed that high staff and management turnover reduced the operating efficiency of City government. Further, the Civil Grand Jury learned that this high turnover rate has negatively impacted the City’s reputation and in turn, has led to its inability to attract qualified people for some key staff and management positions. Interviewees cited turnover as a continuing operational problem.

Some councilmembers indicated that the high turnover was more a function of individual retirements and people seeking better, higher-paying positions. Documents researched and reviewed by the Civil Grand Jury provided information that did not fully support these conclusions.

For example, the City of Cupertino salary structure for staff and management is competitive with equivalent positions in other nearby cities. And witnesses confirmed that much of the turnover was due to some councilmembers’ contentious behavior and direct interference in City operations and staff assignments.

Interviews with current and former City managers confirmed that some City councilmembers inserted themselves in the process of recruiting and hiring for open positions within the City. The belief by City staff that their work is unappreciated and devalued by councilmembers perpetuates the open and public conflict between the City Council and City staff. Such behavior makes it highly likely that management turnover will continue.

Effective local government depends upon hiring and retaining qualified staff and management and electing councilmembers dedicated to functioning in a manner that best serves their constituents.

The City, according to several interview statements, has developed a reputation of having a difficult work environment, making recruiting of highly qualified applicants difficult.

Ethics Policy
In a City Council vote on January 15, 2019, the City Council rescinded its Code of Ethics and Conduct that had just been voted on and passed the prior November. A year later, in January 2020, the City Council adopted a new Ethics Policy. The Civil Grand Jury has many concerns about the new Ethics Policy.
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First, unlike the rescinded version, the current Ethics Policy is less comprehensive and ignores the subject of councilmanic interference found in the rescinded version. Thus, there are significantly fewer ethical requirements and standards for councilmembers.

Second, the current version of the Ethics Policy contains no enforcement provisions that would allow action(s) to be taken against councilmembers or City officials who violate behavioral or performance requirements. The Civil Grand Jury reviewed the City’s current Ethics Policy against those of comparable cities. Noticeably missing were enforcement provisions that enabled the public, councilmembers, and staff to report policy violations or other misconduct.

Enforcement provisions are needed to:
• Provide guidelines to address misconduct and inappropriate behavior • Implement appropriate disciplinary action when necessary, including warnings, sanctions, censure, and termination
• Define steps to take depending upon the nature of the violation, prior violations by the same individual, and other factors that could bear upon the seriousness of the violation In the absence of enforcement provisions, the City’s barebones Ethics Policy is ineffective in remediating problematic staff and councilmember actions and behaviors. Adopting a more comprehensive ethics policy is important to enable the City Council to execute its assigned responsibilities for effective governance, operational oversight, and risk mitigation.

Third, the Ethics Policy is not available to the public online. This lack of transparency is unusual for City government. Further, the lack of a publicly available Ethics Policy reduces the likelihood that councilmembers will be held accountable by the public for violations of the policy. The 2018 and 2020 versions of the City’s Ethics Policy are attached as Appendix B and Appendix C, respectively.

Fourth, the year-long gap during which the City had no ethics policy is a concern.

Last, it seems that the rationale for creating a policy with generic ethics goals and no enforcement provisions was to avoid accountability. One councilmember interviewed expressed the opinion that the old policy did not provide enough flexibility. Another councilmember suggested that the old Ethics Policy was too restrictive. No City councilmembers could explain why the replacement Ethics Policy does not contain any enforcement provisions. The City Council’s decision to rescind a detailed Code of Ethics and Conduct with meaningful enforcement provisions, and to replace it with a barebones unenforceable policy that is not publicly available, and, in the meantime, to operate without any policy at all for 12 months, is very concerning to the Civil Grand Jury and evidences a lack of willingness on the part of the current City Council to hold itself accountable. 442
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CONCLUSION
Voters of the City of Cupertino elect five councilmembers. Councilmembers in turn hire the City Manager and the City Attorney. The public has the right to hold the governing body responsible for its leadership and guidance and to pursue policies that lead to sound governance. City voters do not elect City staff. If the environment created by the governing board is toxic, the City will not be able to hire and retain competent talent to serve the residents of Cupertino. The governing council must create a respectful environment for staff. The behavior of councilmembers may need to be reviewed and good government practices implemented to remediate the dysfunction that currently exists.

The absence of a comprehensive Ethics and Code of Conduct policy with enforcement provisions is a significant concern for the Civil Grand Jury. Ethics and Code of Conduct policies set baseline parameters of acceptable organizational operating practices and required behavior of staff, management and councilmembers. The absence of enforcement provisions in the new Ethics Policy provides the City and its residents no remedy for unacceptable actions or behavior.

The Civil Grand Jury is aware that this report will be published after the November 2022 elections and hopes that any newly elected councilmembers will take the opportunity to develop better working relationships with the City staff.
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FINDINGS AND RECOMMENDATIONS
Finding 1
The City has a culture of distrust between the councilmembers and City staff that is creating dysfunction.

Recommendation 1
The City should develop or acquire a good governance training and development program for both existing and newly elected councilmembers and existing and new staff members to address: (i) their role, responsibilities, and the relevant laws that specify and/or limit their function; (ii) the division of responsibilities between councilmembers and staff as directed by the Cupertino Municipal Code; and (iii) the necessity of morale building to create a stronger, more effective, and respectful relationship between City staff and councilmembers. Recommendation 1 should be implemented by March 31, 2023.

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.

Recommendation 2
The City should hire a consultant to study staff morale and make recommendations to improve retention of employees and quality of the working environment. To the extent legally permissible, the study and recommendations should be published for public review. Recommendation 2 should be implemented by July 31, 2023.

Finding 3
The City has not taken sufficient steps to improve the City’s financial risk profile as recommended by its retained Internal Auditor.

Recommendation 3a
The City should implement the work plan identified in the May 2022 Fiscal Policy Inventory and Gap Analysis Report developed by the City’s internal audit firm, Moss Adams LLP, to address policy and procedural gaps and weaknesses. Recommendation 3a should be implemented by July 31, 2023.

Recommendation 3b
The City should employ the use of continuing annual internal audits to assess progress in the development and implementation of new or modified policies and procedures to comply with 444
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internal audit risk reduction and mitigation recommendations. Recommendation 3b should be implemented by July 31, 2023.

Finding 4
A comprehensive Code of Ethics not only provides guidance and baseline standards for ethical behavior, it includes sanctions and consequences for deviations from the standard. The City’s Ethics Policy is generic and lacks enforcement provisions and therefore fails to provide a framework to address ramifications for policy violations.

Recommendation 4a
The City should establish an independent Public Ethics Commission with guidance from experts in applied ethics, such as the Markkula Center for Applied Ethics at Santa Clara University, to: (i) develop and implement a robust government ethics training program for all councilmembers; and (ii) evaluate a best practices enforceable Code of Ethics and Conduct Policy that governs all councilmembers and appointed officials for consideration by the City Council. This recommendation should be implemented by March 31, 2023.

Recommendation 4b
The City should reinstate enforcement procedures to enable the City Council and the public to file complaints and testify at public hearings to help remediate ethics violations. This revision should include a procedure for public admonishment, revocation of special privileges, or censure. This recommendation should be implemented by March 31, 2023.

Recommendation 4c
The City Council should engage a conflict resolution professional to help enhance mutual understanding and respect amongst all stakeholders. This recommendation should be implemented by January 31, 2023, and should be repeated at least once per year.

Recommendation 4d
The City should publish its current Ethics Policy on the City website by January 31, 2023.

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REQUIRED RESPONSES
Pursuant to California Penal Code § 933(b) et seq. and California Penal Code § 933.05, the County of Santa Clara 2022 Civil Grand Jury requests responses from the following governing body:

Responding Agency Findings Recommendations
The City of Cupertino 1, 2, 3, 4 1, 2, 3a, 3b, 4a, 4b, 4c, 4d
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APPENDIX A
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APPENDIX B
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APPENDIX C
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REFERENCES
Bibliography:

California Government Code section 36501, https://law.justia.com/codes/california/2021/codegov/title-4/division-3/part-1/section-36501/#:~:text=%C2%A7%2036501%20(2021)- ,36501.,(b)%20A%20city%20clerk (accessed October 15, 2022).

California Government Code section 41004, https://law.justia.com/codes/california/2019/codegov/title-4/division-3/part-3/chapter-3/section-41004/#:~:text=%C2%A7%2041004%20(2019)- ,41004.,copy%20with%20the%20legislative%20body (accessed November 1, 2022).

City of Cupertino Municipal Code,
https://codelibrary.amlegal.com/codes/cupertino/latest/cupertino_ca/0-0-0-78624 (assessed October 30, 2022).

City of Cupertino Ethics Policy, adopted by Resolution No 2020-011 dated January 21, 2020.

City of Cupertino, City of Cupertino Careers Class Specifications, www.governmentjobs.com/careers/cupertino/classspecs (assessed Nov 3, 2022).

County of Santa Clara 2022 Civil Grand Jury Report, “Show Me The Money: Financial Transparency Needed,” November 2022.

Hase, Grace, “Cupertino loses latest city manager in four years, and mayor wanted to ‘hold off’ in disclosing it,” Mercury News, https://www.mercurynews.com/2022/07/02/cupertino-loseslatest-city-manager-in-four-years-and-mayor-wanted-to-hold-off-on-disclosing-it/ July 2, 2022, updated July 3, 2022 (accessed October 11, 2022).

League of California Cities, “Your Legal Powers and Obligations,” https://www.calcities.org/docs/default-source/new-mayors-and-council-members-academysession-materials/02-your-legal-powers-and-obligations.pdf (accessed October 13, 2022).

Marrkula Center for Applied Ethics, “Government Ethics,” Santa Clara University, https://www.scu.edu/government-ethics/ (accessed November 1, 2022).

National League of Cities, “City Councils,” https://nlc.org/city-councils (accessed November 1, 2022).
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A HOUSE DIVIDED REPORT TITLE
This report was ADOPTED by the County of Santa Clara 2022 Civil Grand Jury on this 19th day of December, 2022.
______________________________
Ms. Karen Enzensperger
Foreperson
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Confidential Fact Finding Report
Review of Outstanding Issues and Concerns
Raised by the Findings and Recommendations of
the 2022 Santa Clara Civil Grand Jury Report, A
House Divided: Cupertino City Council and City
Staff, Published on December 19, 2022
Prepared by: Linda L. Daube, Esq.

Submitted: May 1, 2023

THIS REPORT SHALL ONLY BE PUBLICLY DISCLOSED ON CONDITION

THAT THE CITY COUNCIL OF THE CITY OF CUPERTINO WAIVES THE

ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY WORK PRODUCT
I. Procedural History and Overview of the Allegations: Basis for Additional Review
The Undersigned was retained on February 14, 2023 to independently review some of the findings set ,forth in the 2022 Santa Clara County Civil Grand Jury Report, "A House Divided: Cupertino City Council and City Staff', dated December 19, 2022 (hereinafter referred to as "Report). Specifically, the scope of my review included reviewing past and on-going communications among City of Cupertino ("City") staff, City Councilmembers, and City Commission members. The scope of the assignment was the result of City Council direction to staff during its February 7, 2023 City Council meeting regarding the City's proposed response to the Report's Finding No. 4, Recommendation 4b, that provided:
"The City should reinstate enforcement procedures to enable the City Council and the public to file complaints and testify at public hearings to help remediate ethics violations. This revision should include a procedure for public admonishment, revocation of special privileges, or censure. This recommendation should be implemented by March 31, 2023." [Report,@ p. 16].

In a subsequent City Council meeting on February 21, 2023, Councilmember Fruen moved that the following language be added to the City's response to Recommendation 4(b) of the Report: " . .. the City Council has directed the City Attorney to investigate and report back to Council 1 481
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regarding other potential violations of the Municipal Code arising out of Council-staff or commission-staff relations. The intent of the Report is to allow Council opportunities to correct past Municipal code violations and prevent future violations." [emphasis added]. Councilmember Fruen's motion was approved by the City Council. This Investigator initiated the review at the direction of the City Attorney.

What was relevant to determining the scope of the review as well as determining the appropriate individuals to be contacted was the discussion among Councilmembers during the February 7 and the February 21, 2023 City Council meetings. During these meetings both Councilmember Moore and Councilmember Chao raised concerns about the investigative review process of the Santa Clara County Civil Grand Jury, and Councilmember Moore pointed to a significant inaccuracy in the December 19, 2022 report regarding the description of her (Moore's) purported contact with a subordinate staff member regarding a City employee's charges incurred on -a City issued credit card. 1 [Refer to p. 8 of the Report].

Councilmember Chao raised issues that the Civil Grand Jury process was flawed and there was no opportunity to cross-examine complainants.

Chao stated that she had been contacted and had been interviewed by the Civil Grand Jury and had offered emails and documents to them, but the Civil Grand Jury ignored her (Chao's) explanations and offer to provide additional documentation. Chao also contended that she was not admonished to tell the truth as is done in any court proceeding and could only conclude that other interviewees had likewise not been admonished. During the February 21 st meeting, Chao expressed concerns that there was no accountability for statements made by those interviewed by the Civil Grand Jury. Accordingly, both Moore and Chao were contacted during this investigation to provide an opportunity to more fully respond to the Findings or Recommendations set forth in the Report.

As will be more fully discussed under Section II, Investigative Methodology, individuals to be interviewed were initially selected based upon whether that individual had been specifically or by reference involved in the incidents discussed in the Report.

Overview of the Civil Grand Jury Findings and Recommendations On December 19, 2022, the Santa Clara County Civil Grand Jury issued its findings in a report entitled, "A House Divided: Cupertino City Council and City Staff'. The report was the result of the Civil Grand Jury During the February 7, 2023 meeting, City Attorney Jensen publicly reported that in responding to the Civil Grand Jury Report, the response would not include a response to all purported inaccurate factual statements; however, Jensen stated that the description of Councilmember Moore's requests for information regarding staff credit card usage was incorrect. 2 482
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receiving multiple complaints concerning the conduct of City Councilmembers toward City management and staff. According to the Report, the Civil Grand Jury reviewed the following allegations that: 1) Councilmembers interfered in the day-to-day operations of the City; 2) Councilmembers routinely berated and belittled presentations made by City staff during City Council meetings; and, 3) certain Councilmembers gave direct work assignments to City employees, thwarting the requirements of the Council-Manager form of government set forth under the City's Municipal Code.

The Report resulted in four (4) Findings, three (3) of which directly related to the scope of this review:
• 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; and,
• Finding 4 - A comprehensive Code of Ethics not only provides guidance and baseline standards for ethical behavior, it 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. [Civil Grand Jury Report@ pp. 15-16.] Moreover, the Report included references to complaints that had been brought forth during the course of its investigation including, without limitation, the following:

1. Existence of Councilmember distrust of City staff and staff fear of retaliation from Councilmembers [Report@ p. 3];

2. City Councilmembers behaving inappropriately toward the City Manager and staff, including routine disrespect and the inclination to doubt the accuracy of the City's staff work [Report @ p. 3];

3. Evidence of high turnover in key management and leadership positions within City government resulting in the loss of employees with significant capabilities and experience [Report @_p. 3];

4. Some Councilmembers' requests have been voluminous or "come on the heels of the Councilmember's specific dissatisfaction with a staff report on a certain subject and, thus, appears punitive as opposed to a genuine information request" [Report @ p. 7];

5. High staff and management turnover has reduced the operating efficiency of the City's government [Report @ p. 3];
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6. High staff turnover was not supported by the contention that the turnover was the result of retirements and staff seeking better, higher paying positions [Report @ p. 12];

7. The "abnormally" high turnover rate among City staff, including key staff positions, is the result of the belief of City staff that their work is unappreciated and devalued by Councilmembers [Report@ p. 12];

8. The abnormally high turnover rate of management and executive management staff has negatively impacted the City's reputation and, in turn, has led to its inability to attract qualified people for some key staff and managements positions [Report @ p. 12];

9. Councilmember requests for information is often perceived by City staff as "councilmanic interference" and the time to respond to requests could be interpreted as inappropriately interfering with department workloads, staff decisions, schedules, and/or department priorities [Report @ p. 7];

10. In some instances, when City Councilmembers believed they did not receive requested information, the individual Councilmember filed a Public Records Request ("PRA") pursuant to California Government Code § 6250 et seq., which generally is an option available to members of the public and is not typically used by City Councilmembers [Report @ p. 7];

11. It may be frustrating to Councilmembers who request additional staff information to not receive such information as Councilmembers are charged with governing and must be informed to make important decisions about the direction of the City [Report @ p. 7].

As will be more fully discussed in Section IV, Allegations and Factual Findings, of this Fact-Finding Report, based upon the consistent and unequivocal statements provided by current and former City executive and management staff interviewed and the numerous email communications between Councilmembers, Commissioners. and staff, there was substantial evidence to support and sustain all of these factual findings.

While many of the Civil Grand Jury's findings were described in somewhat "conclusory" terms, e.g., "existence of distrust and fear", "berated", "councilmanic",2 the Report clearly highlighted several government operational issues that warranted further review given the direction of the City Council at its February 21, 2023 meeting. Accordingly, the focus of my review was to ascertain facts that either supported in full or in part and/or did not support the ultimate findings/recommendations of the Report. 2 As will be more fully discussed below, interviewees were asked what these "conclusions" referenced in the Report meant to them and what factual examples reflected, supported, and/or did not support these conclusions. Specific examples of interviewee responses will be more fully discussed below.
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My evaluation takes into account the undisputed fact that the City's turnover rate in key executive management positions is significant with the employment of four City Managers since 2019. Moreover, as cited in the Report, over 50% of Planning Division staff and 60% of the City's senior management staff have left the City since January 2022.

It is also significant that after the publication of the Report, on February 3, 2023, the City Council engaged in a comprehensive City Council Governance Workshop with the purpose of: 1) strengthening the effectiveness of the City Council as a governing body; 2) clarifying roles within the governance and administrative structure of the City; and 3) establishing agreement on norms for working together with each other and with staff on behalf of the Cupertino community.

Further, at a regular Council meeting on February 7, 2023, by majority vote, the City Council adopted Resolution No. 23-021, Cupertino City Council Procedures Manual (hereinafter referred to as "Manual"). The Manual included guidelines for communication with City staff, Councilmember access to information and requests for information, decorum and civility in interacting with City staff and with other Councilmembers, and the conduct of deliberations/debates during City Council meetings. The Manual also incorporates applicable sections of the Municipal Code and, in essence, provides administrative guidelines to comply with and implement certain provisions of the Municipal Code. Moreover, and consistent with the issues raised by the Civil Grand Jury regarding the lack of enforcement procedures of the City's Code of Ethics policy, the Manual provides that "[t)he City Council may enforce repeated or serious violations of the rules set forth in the Manual through a censure action placed on a Council agenda." As part of the scope of this review, interviewees were asked whether they felt that the February 3rd workshop as well as the adoption of the Manual has had any significant impact on improving the alleged improper conduct of Councilmembers. The overall consensus of the staff interviewed was that while there had been a short "grace" period following the workshop and the adoption of the Manual where Councilmembers appeared to act professionally; however, starting at the end of February 2023, at least two Councilmembers, Councilmember Moore and Chao, have re-engaged in extensive email requests for information that have significantly interfered with the overall operations and productivity of management staff and the respective City departments. Moreover, some of the more recent emails from Councilmembers Moore and Chao following the February 7, 2023 adoption of the Manual have been perceived by City staff members as accusatory, disrespectful, and condescending.
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Scope of Review
Based upon the above, the scope of this review was to:

1. Determine whether there is additional factual evidence to further support the Civil Grand Jury Findings regarding possible violations of the City of Cupertino's Municipal Code and/or whether there are any additional factual findings that may support violations of one or more of the Municipal Code provisions following the December 2022 issuance of the Report;

2. Determine whether there are facts and documentary evidence that may support possible violations of the Manual, adopted on February 7, 2023;

3. Develop policy recommendations to potentially mitigate any further violations of the Municipal Code and/or the Manual; and,

4. Develop policy considerations in updating the City's Code of Ethics using the 2018 Policy as a starting point.

While the purpose of this review is to evaluate the past and current conduct of Councilmembers, the findings may also serve as guidelines to improve City Council/City Staff relationships moving forward.

II. Investigative Methodology
To begin my review, I received approximately 1,500 email documents that had been lodged. The emails and documents covered approximately a two year period, from 2021 to the present. Primarily, the documents consisted of emails between Councilmembers and staff, in particular, the former and current City Managers and department heads.

On or about March 9, 2023, I received from the City Attorney a list of past and current executive and management City staff who might be possible witnesses to various incidents involving current and former Councilmembers/Mayors and City Commission members. Prior to receiving the list of possible witnesses, I reviewed and summarized the most relevant email documents and also viewed various video segments of four previous City Council meetings. Further, I reviewed the Report, the Manual, applicable sections of the City's Municipal Code, City Resolution 18-115, Adopting the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials, and, City Resolution No. 20-011, Adopting the City of Cupertino Ethics Policy, that had been referred to in the Report. 3 3 As part of its commitment and response to the Report, the City Council will be considering revisions to the current Ethics Policy, using the prior policy adopted by the Council in 2018.

Such review will be incorporated in the City's FY 2023-2025 Work Plan. (City's Response to The Civil Grand Jury's Recommendation No. 4a].
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The above-referenced three "Findings" and the eleven factual complaints set forth by the Civil Grand Jury in its Report (pp.3-4 above) served as the foundational allegations that, if proven to be supported by substantial evidence, may support violations of one or more applicable provisions of the City's Municipal Code as well as the newly adopted Council Procedures Manual4
. In summary, the findings and the factual complaints set forth in the Report formed the basis for developing questions for interviews and the further review of videos of selected City Counc·il meetings and Logikcull email communications.

Legal Framework for Review
The gravamen of the issues reviewed by the Civil Grand Jury and by this Investigator emanate from the basic structure of the City of Cupertino's government, which, is clearly defined under the City's Municipal Code as a Council/City Manager form of government. 5 The preamble to Chapter 2.17 City Council/City Staff Relationships of the Municipal Code provides the blueprint for establishing the City of Cupertino's Council/City Manager form of government and sets forth in pertinent part:
"After the City of Cupertino's incorporation, the City Council enacted Ordinance No. 1-06 creating and establishing the Council/City Manager form of government whereby the City Council controls the administrative services of the City only through the City Manager. The Council/Manager form of government is intended to provide the best of unencumbered support of professional/technical staff's input balanced with the collective oversight of elected officials. . .. Neither the City Council, nor individual Council members, can give orders to any subordinates of the City Manager .... The City Manager takes his or her orders and instructions from the City Council only when given at a duly held meeting of the City Council. No individual council member can give any orders or instructions to the City Manager." [emphasis added.]
4 The guidelines provided in the newly adopted Manual were used only to review actions occurring after its adoption by the City Council on February 21 , 2023. 5 The City Council/City Manager form of government, while common throughout California, is not the only model as there are several California cities that are "charter'' cities. Moreover, even those municipalities having a Council/City Manager form of government also have municipal code ordinances, council procedures, and Code of Ethics policies that are unique to that particular agency. The procedures of how City business is, and has been, conducted in the City of Cupertino is strictly dependent on Cupertino's laws and administrative rules set forth under its Municipal Code and therefore, comparisons to other municipalities having different underlying governance structures. municipal code provisions, and/or administrative pollcles may be irrelevant. The conduct of Councilmembers and City staff is strictly governed by the applicable duly enacted municipal code provisions and administrative rules and procedures.
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As cited by the Civil Grand Jury in its Report,§§ 2.17.020, 2.17.032, and § 2.17.034 of the Municipal Code provide specific laws regarding the conduct of City business and interactions with the City Manager. The two (2) areas that are pertinent to this investigation include the following:
1) The City Council (as an entire body) retains full power to accept, reject, amend, or otherwise guide and direct staff actions, decisions, recommendations, workloads and schedules, department priorities, and the conduct of city business through the City Manager; this power cannot be delegated to individual Council members, nor to committees composed of council members consisting of less than a quorum. [§

2.17.031]. While nothing in the City's Municipal Code precludes individual Council members requesting information, in accordance with § 2.17.034, the City Manager retains discretion in how, and whether, the requested information will be provided to all Council members, if at all. Further, individual Councilmember requests to the City Manager for information are further limited by the criteria and authority provided to the city Manager provided under§ 2.17.043 (cited below). Consistent with this Municipal Code section, the City Manager retains the sole authority to determine whether the individual request for information and assistance would adversely impact City staff's work priorities and available resources.
2) § 2.17.032 and § 2.17.042 specifically preclude individual Councilmembers from attempting to influence staff decisions, recommendations, workloads, and schedules and department priorities without prior knowledge and approval by the entire City Council.

Likewise, City staff may only be guided by City management and/or the City Council as a whole. Under § 2.12.042, City staff may be disciplined for violating this Municipal Code provision and may report attempts by individual Councilmembers to unduly influence or pressure staff into making, changing or otherwise suppressing staff decisions or recommendations, or changing departmental work schedules and priorities.

As referenced above, one of the provisions of the City's Municipal Code that had not been referenced by the Report was § 2.17.043, Timely Responses, which provides in pertinent part that the City Manager has sole discretion to determine whether a Councilmember's request for information would require such significant allocation of staff time as to alter other work priorities and, if so, such an individual request should be directed to staff through a collective direction of the entire City Council. § 2.17 .043 further provides guideline by which the City Manager can exercise this discretion: 1) Is the request specific and limited in scope so that staff can respond without altering other priorities and with only minimal delay to other assignments; 2) 2) Is the request a "one time" work requirement, as opposed to an on-going 8 488
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work requirement?; and 3) Does the response to a request require a significant allocation of staff resources (generally defined as consisting of more than one staff person, or a single staff person working on the request in excess of two hours? Based upon the scope of this review, § 2.17.043 was also incorporated in reviewing the Councilmember/staff relations and communication.

In the event that a Councilmember's conduct is determined to have possibly violated applicable provisions of the City's Municipal Code as referenced above, such violation(s) may be a misdemeanor subject to criminal prosecution. [§1.12.010 of the Cupertino Municipal Code].

City Council Procedures Manual, Resolution 23-021
In reviewing Councilmember-staff relationships following the adoption of Resolution 23-021 Cupertino City Council Procedures Manual, provisions of the Manual were incorporated as guidelines. While the Manual essentially incorporates several of the above-mentioned Municipal Code sections, Section 6.5 Decorum, highlights civility requirements that all Councilmembers and City staff shall treat each other with dignity, courtesy, and respect.

Further, § 6.5 provides that Councilmembers should avoid personal attacks on City staff and shall refrain from publicly criticizing the general abilities, character, or motivations of any staff members and should share any such concerns privately with the City Manager or City Attorney. § 6.6 of the Manual Councilmember Access to Information provides that "no Councilmember shall circumvent the City's Manager's direction regarding a request for information by seeking information through a Public Records Act request."
Finally, the Manual is consistent with the Civil Grand Jury's concerns that the City's Ethics Policy [Recommendation 4a, p.16 of the Report] provided no enforcement provisions, the Manual sets forth enforcement rules in Section 1 0: "The City Council may enforce repeated or serious violations of the rules set forth in this Manual through a censure action placed on the Council agenda."6 [Manual@ p. 14].
6 Censure is a disciplinary procedure naming a particular member of the legislative body as an offender. It does not "diminish" a Councilmember's rights but may limit or preclude certain conduct that has been determined, by a majority of the legislative body, to constitute violations of applicable rules and policies. Censure has been protected as an appropriate remedy under the First Amendment and under California Anti-SLAPP statutes. 9 489
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Evaluation of the Outstanding Issues
In evaluating the allegations, the following criteria will be incorporated as part of the final report:

1. Not Sustained: The investigation failed to disclose
sufficient evidence to support the alleged conduct beyond a preponderance of evidence.

2. Inconclusive: The investigation uncovered conflicting evidence of relatively equal weight as to whether the
alleged conduct did or did not occur.

3. Sustained: The investigation disclosed that there is substantial evidence that the act or omission occurred as alleged beyond a preponderance of evidence.

Sixteen (16) current and former executive and management staff members have been interviewed. Following the initial staff interviews, Mayor Wei, Councilmember Moore, and Councilmember Chao were also interviewed. Former Mayor Darcy Paul was invited to participate in an interview, but due to his scheduling conflicts, was unable to do so prior to the completion of this Fact-Finding Report. A copy of Paul's email response that had been sent to tne City Attorney, City Manager, and all Councilmembers has been included as part of this Fact-Finding Report.

To maintain the integrity of the fact finding, I asked each of the sixteen (16) interviewees to identify other possible witnesses/complainants, if any.

Further, I asked each staff member interviewed to provide to me any emails/documents that they believed would support their statements and/or were relevant to the scope of my review. I did receive numerous documents from the interviewees, some of which had been provided by the City Attorney's Office and some of which had not been included.

Some of the witnesses suggested names of individuals, both current and former City employees, who should be interviewed. Finally, each staff member interviewed was admonished to: 1) answer my questions truthfully; 2) provide any and all information that he/she believed would be relevant to the scope of my review; 3) refrain from talking to anyone about my questions to them and their answers to me; and, 4) if they answered the questions, I would assume that they understood the question and, if they did not, they had my permission to let me know. I also informed them that if they felt that they were treated adversely or retaliated against because someone suspected that they had participated in this review, they should contact the City Attorney as the City had an absolute prohibition against retaliation for participating in an investigation. Following the interviews of the current and former City staff members, I reviewed email documentation provided to me and viewed the 10 490
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videos of specific City Council meetings concerning agenda items that had been referenced by the staff members during their interviews.

Finally, during the course of my interviews, I discovered that there had been at least five (5) "informal" complaints anct one (1) formal complaint filed with the Human Resources Department ("HR") in accordance with the City's Administrative Rules and Regulations of the Personnel Code, Section 3 Prohibition Against Harassment, Discrimination & Retaliation. Most of these complaints had been lodged prior to January 2023; however, several of the other interviewees stated that they had not notified HR about their complaints regarding interactions with current and former Councilmembers and Commissioners for fear of retaliation.

With respect to the five (5) "informal" complaints that had been lodged with HR, the individuals interviewed told me that they had initially been reluctant to file a formal complaint as they were fearful of retaliation as the alleged misconduct involved former and current Councilmembers and Commissioners. The five (5) complainants told this Investigator that they were concerned that if the Councilmember or Commissioner became aware of their complaint, these individuals would have created such a hostile and intolerable work environment that the employees would feel forced to leave City employment. Even though these staff members had decided to file an informal complaint, they did not want any formal investigation but merely wanted to let HR know what had happened in case there were further incidents. All of the complaints were based upon bullying and harassment where the staff member felt that the "subjects" of their complaint were interfering with the scope of their work duties and that of their respective City departments. It did not appear that the allegations were based upon a "protected classification"; however, the alleged conduct, if supported by substantial evidence, may violate applicable provisions of the Municipal Code and Section 3 of the City's Administrative Regulations, particularly with respect to § 3.3 No Retaliation7
•
The City has a strict "confidentiality" provision under its Administrative Regulations regarding anti-harassment and retaliation which provides in pertinent part that: "The City recognizes that confidentiality is important to all parties involved in an investigation and it will not disclose a completed investigation report, except as it deems necessary to support a disciplinary action, to take remedial action, to defend itself in adversarial proceedings, or to comply with the law or a court action." A separate review of the complaints lodged only with HR Department and those disclosed to this Investigator 7 § 3.3 provides in pertinent part that a retaliatory "adverse conduct" includes: taking sides because an individual has reported harassment or discrimination; spreading rumors about a complaint; shunning or avoiding an individual who reports harassment or discrimination; or real or implied threats of intimidation to prevent an individual from reporting harassment or discrimination.
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during the course of the staff interviews has yet to be fully concluded, and the names of the current and former City staff interviewed shall remain confidentia I.

Ill. Witness Credibility
Credibility of the interviewees was based on the following: 1) factual consistency of the individual's statement with that of statements of other witnesses and/or documents produced; 2) ability of the person interviewed to specifically articulate examples of his/her generic comments; 3) whether the interviewee had personally observed certain incidents that they relayed to the Investigator; and 4) whether there were potential biases based upon his/her employment history with the City, i.e., whether the staff member was concerned about the stability of his/her employment or the damage to their professional reputation should they be totally candid with this Investigator. In reviewing the credibility of the interviewees' statements, all current and former staff interviewees were admonished by this Investigator at the beginning of each interview to answer all questions truthfully and provide all relevant information, to which all interviewees responded that they would do so.

This Investigator found the staff interviewees forthcoming and candid.

More importantly, there was consistency in the statements that each had made regarding his/her experience in working with former and current Councilmembers and Commissioners. With respect to Mayor Wei, Councilmember Moore, and Councilmember Chao, this Investigator found all three forthcoming in expressing concerns and goals for enabling the City Council to more effectively work together and to improve working relationships between the City Council and the City Manager and staff.

Councilmember Moore did state that in making decisions, she often requires more information than perhaps other Councilmembers may need and that she is frequently frustrated with getting the information needed. 8 Likewise, Counciln;iember Chao told this Investigator that she needs sufficient information to make sure that staff has reviewed all alternatives/options before making a recommendation to the City Council. Further, Chao told this Investigator that she also needs information verifying that City staff has made sure that any agenda item brought before the City Council has procedurally complied with any required approvals, i.e., any required approvals by the appropriate City Commissions. Finally, Chao told this Investigator that she needs information to assure that the proposed action complies with applicable City codes and regulations.
8 Moore's comment is consistent with the Civil Grand Jury's observation that "it may be frustrating to Councilmembers who request additional staff information as Councilmembers are charged with governing and must be informed to make important decisions about the directions of the City"; however, voluminous requests for information may appear "punitive" by City staff and the time to respond to such requests diverts staff resources from priority project work. [Report @ p. 7).
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During her interview, Chao also questioned the validity of the current and former City staff statements regarding the reasons for the City's significantly high staff turnover that included the dysfunctional work environment due to conduct of former Councilmembers and Commissioners.

Chao continued to insist that the turnover was due to retirements and that the departing staff was leaving for better positions and higher paying positions.

Further, Chao stated from her perspective, some of City staff who had left had had performance problems and personally realized that they couldn't be successful.

IV. Discussion of Allegations and Factual Findings
One of the witnesses best expressed the general consensus of the current staff (and some former staff members) by stating, "The Civil Grand Jury Report is the tip of the iceberg and only reflects half of what has happened." Overall, following the February 3rd workshop and the adoption of the Manual, some of the interviewees felt that "things" would get better; however, all current staff interviewed agreed that since February, there has been a gradual decline in civility and growing distrust of staff's professional capabilities, especially demonstrated by Councilmembers Moore and Chao.

The factual evidence collected as a result of this review has been divided among the three (3) Findings that served as the basis for the further fact finding. As stated above, the factual support for these findings as referenced in Section I, Procedural History and Overview of the Allegations:

Basis for Additional Review, were used as a basis for developing interview questions for the sixteen (16) current and former executive and management staff. Based upon the interviewees' statements and the numerous email communications reviewed, all of the eleven (11) factual complaints cited by the Civil Grand Jury in its December 19, 2022 Report are supported by substantial evidence and are Sustained.

The additional factual determinations obtained as a result of this review include the following and further Sustain the Civil Grand Jury findings:

Civil Grand Jury Finding 1: The City has a culture of distrust between the Councilmembers and City staff that is creating dysfunction.

1. Staff believes that there continues to be "distrust" from at least two Councilmembers, Councilmembers Moore and Chao, and
such distrust has been reflected in the continuous challenges by these two Councilmembers through voluminous email
requests for additional and duplicative information regarding the staff's recommendations for Council actions. Both
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they did have some "trust" issues with current City staff. As referred to above, Councilmember's Moore distrust is primarily based upon the City's embezzlement issue that had been
discovered in 2017 and upon some of the financial and audit issues that had been raised by the Civil Grand Jury Report.

Chao told this Investigator that her lack of trust was based upon the fact that she had uncovered several incidents where staff members had made "mistakes" and/or had relied upon incorrect information. According to Chao, when she has pointed out these mistakes to staff, the staff member does not admit that he/she was wrong. Chao stated that she cannot trust staff if they are not willing to admit that they have made a mistake.

Chao even went so far as to suggest that the public has trust issues with staff. Both Moore and Chao told this Investigator that they frequently and independently research the projects that are matters subject to City Council agenda matters because they don't trust staffs recommendations as they don't feel that they are provided adequate information to evaluate the recommendation.

2. Staff uniformly stated that the purported "distrust" is reflected in the continuing blaming staff for Council decisions that have been criticized by members of the public. As an example, some of the email exchanges reflected that when a Council decision, made collectively at a regular or special meeting, has been challenged by a constituent, the Councilmember's excuse for supporting (or not supporting) that decision was that "staff did not provide sufficient information" to properly evaluate the proposed recommendation. In such cases, the Councilmember then emailed the City Manager for additional information on the matter that had already been considered and voted on by the entire Council.

3. Four of the interviewees told me that the tone of the email communications from two of the Councilmembers was
threatening, accusatory, and somewhat coercive in that they believe that if they don't appropriately respond, they will continue to be "badgered". One interviewee told me that she had reviewed some of the emails between Councilmembers
and City staff and that, "literally, she has cried over the tone/texture of such emails." This interviewee "loved" working for the City and was disheartened that Councilmembers would "attack" City management staff.

4. In addition to the distrust, there was substantial evidence, both in emails and videos of Council meetings, that Councilmember 14 494
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Moore has responded to City staff in a discourteous and disrespectful manner. Both Moore and Chao have made public comments that have been perceived by staff members as
criticizing their work product to the extent that some staff members are fearful of even making a recommendation for Council action.

5. The abusive and controlling behavior of former Mayor, Darcy Paul, and former Planning Commissioner Wang, is
substantiated in email communications between these two individuals and City staff. For example, as reported by four of the interviewees, at a public event, Mayor Paul publicly stated something to the effect that, "I guess I should say thank you to staff but they always want to make it all about them." Further, the email communications reflect that Paul would berate staff, dictate procedures, direct hiring and firing decisions, and intermittently make comments in front of staff, "remember who you work for." Uniformly, the interviewees stated that Paul's conduct and staff relationships were a significant factor in creating a dysfunctional work environment. In fact, two interviewees told this Investigator that they only stayed with the City because they knew that Paul's term was ending. These statements and conduct are pending further review.

6. The majority of the current and former staff interviewed told this Investigator that the dysfunction was the result of
Councilmembers Moore and Chao not understanding their roles in carrying out their council duties. In accordance with applicable provisions of the Municipal Code, Councilmembers make decisions collectively during a scheduled meeting and must seek information solely through the City Manager. The email exchanges reviewed. by this Investigator reveal that Councilmember Moore has repeatedly failed to appear for 1 : 1 meetings with the City Manager but instead has engaged in sending voluminous emails to the City Manager with copies of the emails to other staff members and, in some cases, has sent emails directly to staff members, thereby bypassing the City Manager.9 Councilmember Moore told this Investigator that she perceived her Councilmember role to double check staff's work by actually conducting her own independent research and staff work, particularly with respect to performing audits and producing financial reports. This perception may be fueled in 9 It appears, however, that since January 2023, both Councilmember Moore and Chao are now directing their information requests to the City Manager rather than directly to the subordinate staff. This observation was based on a review of email communications from 2022 through the present.
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Moore's stated distrust of the City's financial reports is based primarily on the 2017 discovery of the embezzlement. In a recent exchange regarding Councilmember Moore's research regarding lawsuits and City contracts, Councilmember Moore described her role as a Councilmember as not being a "silent observer" and that it was necessary to her job to "analyze and critique." Councilmember Chao told this Investigator that she believes her job as a Councilmember is not to "rubber stamp" staff's recommendations. Like Councilmember Moore,
Councilmember Chao independently investigates matters and projects that will be placed on City Council agendas and, many times, she believes that, based upon her independent research, staff has made errors in their analysis and has relied upon incorrect information. However, Councilmembers Moore and Chao's duties as councilpersons are, in accordance with the Municipal Code, separate and distinct from the performing of independent work as a City auditor, planner, housing specialist, or financial consultant, especially without approval by the entire City Council.

Both Councilmembers Moore and Chao told this Investigator that they often contact other agencies, both cities and counties, to find out what that agency is doing or how that agency is handling the particular project. How other agencies are addressing certain issues or projects may or may not be relevant to how the City of Cupertino is addressing its project goals and objectives as the City of Cupertino is unique from other agencies. Moreover, both Councilmembers Moore and Chao appear to assume that City staff is not to be trusted and it is their job to double-check · staff work product. While Councilmembers Moore and Chao want to assure that the staff recommendations presented to the entire City Council are based upon credible staff review, independently researching staff agenda items is perhaps not the more effective way to accomplish their need for information and assurances that the staff reports and recommendations have included a review of alternative options and are based upon valid information. If there are questions about staff reports and recommendations, those questions should, in accordance with the Municipal Code, be directed to the City Manager. The City Manager, in turn can either address those issues and/or, if additional information is needed, direct the question/concern to the staff member so that when the staff report is published as part of the City Council agenda, Councilmembers Moore and Chao can be assured that their concerns have been reviewed and considered as part of any staff recommendation. As will be discussed more fully 16 496
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discussed below, the voluminous email requests based upon Councilmembers Moore and Chao's independent research of particular agenda items require significant staff time and resources to respond.

Civil Grand Jury 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.

7. Collectively, the current and former management staff interviewed told me that they felt devalued, demeaned, and significantly frustrated by two of the Councilmembers in that there appeared to be no way that they could ever produce satisfactory work. Two of the interviewees told me they were actively looking for other employment. Many interviewees told this Investigator that staff members who had left City
employment told them that they were leaving primarily because of how badly they had been treated and bullied by City
Councilmembers. 10 Both former and current staff concurred that the City's work environment was "toxic" and stressful.

8. One interviewee told me that it is almost impossible to get project work accomplished because of the number of staff hours required to respond to Councilmember information
requests in addition to preparing staff reports and back-up materials for all of the regular and continued meetings. Another interviewee shared that most recently, once staff provides an answer to a Councilmember's request, it seems like, "any answer is never good enough for them." According to the interviewees, the additional work is "exhausting" and
significantly diverts staff resources from work priorities and "undermines the ability of City staff to effectively serve the citizens of Cupertino." The significant staff turnover has exacerbated the problem of insufficient staff to handle increasing Councilmember demands.

9. There is substantial evidence to support the Civil Grand Jury's conclusion that the high turnover rate was not based on staff retirements and/or staff seeking better, higher paying positions.

All interviewees told me that they really like their jobs and tried to do their best, but nothing they did appeared to be
satisfactory to former Mayor Paul and Councilmembers Moore 10 While the interviewee statement could be considered "hearsay", the observations were consistent with the personal statements of current and former City staff members. 17 497
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and Chao. More importantly, the workload due to the
inordinate number of Councilmembers' information requests is overwhelming and almost impossible to accommodate given the current staff resources. Both current and former staff members felt that the additional workload in responding to the emails as well as that additional work due to staffing shortages was overwhelming. As to the compensation package for City employees, based upon a comparison to several other
agencies, Cupertino's compensation package is competitive, and it is unlikely that the management staff exodus is the result of the City's compensation package. It is significant that the last two (2) City Managers voluntarily resigned with no severance package. Further, at least one management
employee left for a lower position with another agency because of the treatment by former Mayor Paul and Councilmembers.

Email Communication Issues Contributing to the Overall
Ineffectiveness of and Interference With
Effective City Operations
Collectively, current and former staff members told this Investigator that the excessive number of emails from Councilmembers Moore and Chao was indeed intimidating and adversely impacted department operations and workloads. In reviewing the email exchanges, a continuing pattern of emails of Councilmembers Moore and Chao are the on-going requests for information that is considered "old business" of what previous City Councils had reviewed and decided. Further, there were misstatements of facts based upon both Councilmembers "independent research" of certain Council agenda items. To some extent, it appeared that Councilmembers Moore and Chao have determined that their roles and functions as
Councilmembers are best performed by "governance through email exchange". Specific examples are included below.

10. In reviewing the number of emails from City Council members to the City Manager in recent months (since January 2023), the average number of emails per week is 50-70 initial emails, not counting any follow-up emails which sometimes was five
additional emails per initial email. Over fifty percent (50%) of these weekly emails were initiated by Councilmembers Moore and Chao and this average did not include the follow-up emails sent in response to the initial email. Depending upon the topic, up to 20-30 pages of email exchanges were generated as a result of an initial email. Three (3) interviewees told me that they didn't think that Councilmember Moore and Chao really 18 498
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understood how long it takes staff to read through significantly long emails and then respond .

11. The two Councilmembers' email requests for staff "information" were, and have been, perceived by the majority of staff interviewed as "subtle attempts" to influence staff priorities and recommendations. At issue is whether the Councilmembers' continued requests for information is for information only or is intended to interfere with departmental and City operations or for some other reason. In some cases, these requests for staff assistance with independent research or other questions appear motivated by individual policy preferences not adopted by the full Council. For example, there is evidence that Councilmember requests for information have been repeated and, in one case, a staff member provided the same
information to the same Councilmember on at least three occasions. Moreover, there is evidence that the informational requests frequently revert to "old news" such as the employee embezzlement issue that was discovered in 2017 and/or former decisions regarding a funding agreement with the Chamber of Commerce. When current staff attempts to "fix" and address some issues, Councilmembers Moore and Chao appear,
through voluminous emails, to focus on, from their perspective, the purported egregious staff screw-up as opposed to focusing on how to effectively correct the situation. [Note: From all of the information collected as part of this review, the
"embezzlement" issue was effectively addressed through the installation of a new financial management system and that a significant portion of the embezzled funds have been repaid to the City.] As discussed in the Civil Grand Jury's Report, attempts by an individual Councilmember to direct staff work or influence staff priorities outside of a noticed meeting is a violation of Municipal Code Chapter 2.17. In the herein matter, instances where Councilmembers have attempted to direct staff work in service of a personal policy agenda not adopted by the full City Council is likewise concerning.

Civil Grand Jury Finding 4: A comprehensive Code of Ethics not only provides guidance and baseline standards for ethical behavior, it includes sanctions and consequences for deviations from the stand.

The City's Ethics Policy is generic and lacks enforcement provisions for policy violations.

To date, one of the most significant City Council responses to the Report's Recommendation, Finding 4, has been the recent adoption of the Manual that addresses many of the deficiencies identified by the Civil Grand 19 499
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Jury regarding the current Ethics Policy. While acknowledging that the City Council has committed to revising the Ethics Policy using the 2018 Policy as a starting point, the recently adopted Manual addresses civility, Councilmember debate, and respect standards and, consistent with the Civil Grand Jury's Recommendation No. 4, provides remedies, i.e., censorship, where there are violations. In my professional opinion, based upon over thirty years as a public lawyer, both serving as in-house attorney in the City of Long Beach, City Attorney's office, and, thereafter, as a contract City Attorney and special counsel to numerous public agencies throughout California, the Manual more than adequately addresses the Report's concerns regarding the City's Ethics Policy and serves as an effective oversight tool until such time as a final policy for both Councilmembers and appointed Commissioners can be developed and approved. That being said, a revision of the current ethics policy using the Code of Ethics and Conduct for Elected and Appointed Officials Policy, Resolution No. 18-115 is the recommended starting point, especially for appointed officials.

Undue Influence on Hiring Decisions
On page 12 of the Report, the Civil Grand Jury mentions that, "Interviews with current and former City managers confirmed that some City Councilmembers inserted themselves in the process of recruiting and hiring for open positions with the City." If this factual finding is supported by substantial evidence, there may be violations of the above mentioned Municipal Code provisions regarding attempts to pressure staff and engage in conduct reflecting undue influence on staff decisions, as well as Municipal Code § 2.28.040(0) that authorizes the City Manager to "appoint, discipline and dismiss any and all officers and employees of the City except those elected by the electors of the City .... " (See also Municipal Code CMC §

2.52.1 OO(A) [City Manager has responsibility "[t]o appoint persons to and remove persons from positions subject to the provisions of [the Personnel Code].")
Based upon the information gathered during the course of this investigation, there was substantial evidence to Sustain the Civil Grand Jury's finding that there had been attempts by former Mayor Paul. City Councilmembers and Commissioners to direct the hiring and firing of City staff. However, after January 1. 2023, there are insufficient facts to support a finding that current Councilmembers have attempted to direct and/or pressure City staff hiring and/or firing decisions.
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V. Conclusions & Recommendations
For the foregoing reasons, this Investigator finds that based upon the interviews and the documents reviewed as part of this Fact-Finding Report, the Civil Grand Jury Findings No. 1 and No. 2 were supported by substantial factual evidence and that the distrust of City staff by Councilmembers Moore and Chao has continued since the publication of the Report in December 2022 resulting in:
1) excessive and duplicative email requests for information; 2) independent "investigations" of agenda matters without City Manager and/or Council knowledge or authority; 3) communication with staff in emails and/or public meetings in an accusatory, discourteous and disrespectful manner; 4) an adverse impact to staffing workloads, work schedules and priorities; and, 5) the overall low morale of key management staff that may result in increased staff turnover adversely impacting the City's ability to accomplish its goals and priorities for the benefit of City of Cupertino residents and businesses. Based upon these findings, there may be violations of the applicable and above referenced Municipal Code provisions and the standards set forth in Resolution No. 23-021 Cupertino City Council Procedures Manua/. 11 What is most significant from this review is the consistency of the statements of the sixteen former and current executive and management staff employees regarding current and former Mayors, City Councilmembers, and Commissioners. The statements provided to this Investigator were unequivocal about their descriptions of and experience with the City of Cupertino's work environment.

Recommendations
Based upon the above review, the Undersigned recommends the following alternatives in order to facilitate more effective City Council/City staff relationships and enhance the City Council's ability to accomplish its goals in order to best serve City residents and businesses:
1) Current City staff needs to be supported (and trusted) in carrying out their respective duties and, more importantly, current staff needs to feel that they are valued in providing professional services to the City.

Councilmembers do have an obligation to make informed decisions; however, voluminous email exchanges regarding requests for information may be less efficient than bringing those concerns to the City Manager through the scheduled 1: 1 meetings. In the 1: 1 meetings, the City Manager may be able to address the question directly and, if not, refer the question to the appropriate staff member. In a nutshell, while it is true that 11 As to the remedy for violations of the Municipal Code and/or the Manual, the City Council has the ultimate authority based upon the factual findings to determine appropriate action that may include 1) censure; 2) referral to the District Attorney; 3) referral to the Grand Jury; and/or 4) remove the Councilmember from certain committees and/or serving as chairperson to certain committees.
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in accordance with the Municipal Code, all Councilmember's requests for information are to be directed to the City Manager, voluminous emails are rarely the most efficient way to address both Councilmembers' Moore and Chao's requests for information, and the sheer volume of email has adversely impacted departmental operations. The 1: 1 meetings between the City Manager and individual Councilmembers is, and traditionally has been in California public agencies, the most efficient way to respond to a Councilmember's inqumes and such meetings should facilitate communication and trust between the Councilmember and the City Manager.
2) The adverse and contentious relationships between and among former and current Councilmembers and former and current City staff members have contributed to staff turnover in the City of Cupertino. The impact of these contentious working relationships has been a significant staff turnover adversely impacting the overall effectiveness and efficiency of City operations. Generally, it will take a new City Manager and/or senior level staff member at least 6 - 12 months to become fully versed in the past history of council decisions on specific projects and to become fully acclimated with the capabilities and accomplishments of subordinate staff. Turnover in executive and management staff in any organization is costly in loss of staff productivity, training costs, and loss of institutional knowledge. If Councilmembers, including Councilmembers Moore and Chao, distrust or question current City staff members' abilities to carry out the responsibilities of their position, then those concerns and the reasons therefore must be communicated to the City Manager so that these concerns may be addressed. The City Council as a whole is responsible for evaluating the City Manager's performance if it feels that such concerns are not being addressed.
3) The City Council should rely on the advice of and give weight to the recommendations of executive management staff and other professionals in considering items that come before the City Council, particularly when those items require technical expertise or specialized knowledge or experience.. Otherwise, the City of Cupertino will be burdened in making timely decisions essential to providing the infrastructure and services necessary to best serve Cupertino residents and businesses. This is not to say that Councilmembers should simply "rubber-stamp" all staff recommendations; however, the voluminous email requests for information and independent investigations appear to be a counterproductive and time consuming process. Councilmember Chao did inform this Investigator that City Manager Wu should inform her if she had received comments from staff regarding her (Chao's) requests and/or if staff felt that Chao had engaged in conduct that the staff member perceived as accusatory or condescending manner.
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4) The City Council's approval of the City's "Work Plan" is an excellent way to implement Council's goals and work projects and allows Department Heads to focus resources and to determine appropriate staffing needs and/or whether outside consultant resources are needed to meet Council goals/objectives.
5) The 2018 Ethics Code should be used as a basis for developing revisions to a new City Code of Ethics policy, especially in developing a Code of Ethics for City appointed positions. As referenced above, the newly adopted Manual addresses many of the Code of Ethics issues cited by the Civil Grand Jury in its Report; however, a new Ethics Code using the 2018 Ethics Code provides an effective starting point for Commissioners Handbook.
6) If not already conducted, the City Attorney and City Clerk should consider providing Councilmember training on Rosenberg's Rules of Order.
7) The City Manager should explore ways to resolve Councilmember Moore and Chao's need for information given limited staff and departmental resources. In accordance with applicable Municipal Code provisions, 1: 1 meetings between the City Manager and Councilmember Moore and Chao could be used to address the need for information without appearing to direct or influence staff priorities.

Finally and most importantly, effective city governance is recognizing that there will be problems beyond anyone's control and when those situations appear, the priority should be addressing the solution, not focusing on or blaming staff for what happened. Trust in City management staff is an essential component of effective municipal governance.

Respectfully Submitted:

Linda L. Daube, Attorney
LAW OFFICE OF LINDA L. DAUBE
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This report is intended for the internal use of the City of Cupertino, and may not be provided to, used, or relied upon by any third parties.

FINAL REPORT
City of Cupertino

ENTERPRISE LEADERSHIP ASSESSMENT
July 14, 2023
Moss Adams LLP
999 3rd Ave, Suite 2800
Seattle, WA 98104
(206) 302-6500
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Table of Contents
Executive Summary 1
A. Background, Scope, and Methodology 1
B. Summary of Observations and Recommendations 1
Background, Scope, and Methodology 5
A. Background 5
B. Scope and Methodology 5
Observations and Recommendations 7
A. City Council 7
B. Commissions and Committees 22
C. City Staff 29
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EXECUTIVE SUMMARY
The City of Cupertino (the City) is governed by a five-member City Council and managed by the City’s executive leadership team. As part of Moss Adams LLP’s (Moss Adams, we) role as the City’s outsourced internal auditor, we developed this assessment to evaluate the effectiveness of the City’s management and governance collaboration framework and provide recommendations to strengthen and streamline procedures to align with best practices for municipal leadership. As part of this work, we evaluated governance topics including:
• The Council’s capacity to set the City’s strategic direction and monitor financial sustainability • Council meeting procedures and resources
• Working relationship and collaboration between Council members, City management, and staff • Training and onboarding
• Committee and commission roles, core function, and support This assessment was conducted between March 2023 and June 2023. Analysis was informed by interviews with the City’s leadership and staff, and a review of data and documents provided by the City.

The goal of this report is to detail current conditions and provide constructive and forward-looking recommendations for how the City’s leadership team can adjust operations to align with public sector best practices.

Observations and recommendations were grouped into three areas: City Council, Commissions and Committees, and City Staff. Observations and recommendations for both areas are summarized below and provided in Section III.

OBSERVATIONS AND RECOMMENDATIONS
City Council

1. Observation
While the City has established many policies that are aligned with best practices, there are opportunities to increase the effectiveness of current policies.

Recommendations
A. Continue current efforts to review, update, and expand the City’s governance policies, including the Ethics Policy and Commission Handbook.

B. Establish a process to ensure all governance policies are reviewed at least once every five years.
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OBSERVATIONS AND RECOMMENDATIONS

2. Observation
With the adoption of the City Council Procedures Manual and other recent changes, the City has made positive progress toward increasing the effectiveness of City Council meetings. However, ongoing challenges remain to ensure that meetings are productive and timely.

Recommendation Continue current efforts to implement the City Council Procedures Manual and hold meeting participants accountable.

3. Observation There is a well-documented history of mistrust and poor communication between the Council and management.

Recommendations
A. Continue current efforts to implement recommendations from the 2023 Internal Review, with a focus on expanding the use of 1:1 pre-meetings with Council members
B. In alignment with Municipal Code guidelines, consider developing and implementing a set of practical criteria to determine when requests for information will require a significant allocation of staff time or otherwise exceed the code guidelines.

C. Continue current efforts to clarify roles and responsibilities and build productive working relationships by providing regular governance trainings and retreats.

4. Observation
The City Council onboarding and orientation process has recently been updated to increase its effectiveness. This process could be further strengthened by focusing additional attention on roles, responsibilities, and practical application of guidelines.

Recommendation Take steps to expand and strengthen the orientation process for new Council members.

5. Observation The City has established many best practice elements of a comprehensive ethics program. However, there are gaps in the City’s compliance enforcement.

Recommendation Strengthen internal processes for tracking and holding elected and appointed individuals accountable to timely completion of Form 700 Disclosures.

6. Observation
A core function of any governing body is to set and monitor the strategic direction of the organization. While the City Council has adopted a two-year Work Program to prioritize annual initiatives, it has not yet developed a longrange strategic plan.

Recommendations
A. Consider developing a long-range strategic plan to increase the City’s ability to strategically plan and advance initiatives.

B. Continue current efforts to utilize and refine the annual Work Program prioritization practice.

C. Consider expanding the City’s reporting processes to more effectively track progress toward strategic goals over time.
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OBSERVATIONS AND RECOMMENDATIONS

7. Observation
While the City has established some strong community engagement practices, interviewees noted that Council members may have an overreliance on anecdotal evidence and/or public comment that may not be representative of the wider community perspective.

Recommendations
A. Consider setting clearer expectations for the intended scope of community engagement at the start of City initiatives.

B. Continue current efforts to implement a statistically significant, representative community survey.

C. Consider providing media and crisis communication training to all Council members.

Commissions and Committees

8. Observation
The City utilizes multiple commissions and committees to support Council decision-making. There are opportunities to increase the effectiveness of some of these groups.

Recommendations
A. Establish charters, including clear roles and responsibilities, for each commission and committee that outline the group’s purpose and member roles and responsibilities.

B. Review additional opportunities to streamline governance groups.

C. Consider reviewing the names of governance groups to introduce a consistent naming convention for commission versus committee.

9. Observation
The City has documented processes to select and appoint community members to governance groups. This process could be strengthened by adding relevant qualification criteria.

Recommendation Review and establish the qualification criteria for each commission and committee member to determine if the City would benefit from adjustments.

10. Observation Commission and committee operations—including onboarding, meeting procedures, work plans, and reporting—are not always consistent or effective.

Recommendations
A. Continue efforts to expand and formalize onboarding and training expectations for both commissions and committees.

B. Clarify the process and expectation for cancelling unnecessary meetings.

C. Consider adopting the practice of requiring annual work plans for each commission and committee.

City Staff

11. Observation The staff time used to support governance groups represents a significant investment of City resources.

Recommendations
A. Review the practice of requesting department directors attend commission and committee meetings.

B. Provide training for staff liaisons annually and when a new individual takes on the liaison role.
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OBSERVATIONS AND RECOMMENDATIONS

12. Observation
City staff continue to experience a high degree of organizational change and uncertainty. Within this context, it is critical for the City’s management team to provide active communication and change management to increase support of staff.

Recommendation Identify and implement expanded communication and change management practices to improve workplace culture.
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BACKGROUND, SCOPE, AND METHODOLOGY
In recent years, the City has experienced significant organizational change and uncertainty. In particular, there has been both a high turnover rate in key leadership positions within the City and ongoing turmoil in relation to the Council/staff relationship. Two highly publicized reports have documented related issues:
• The 2022 Santa Clara County Civil Grand Jury report A House Divided: Cupertino City Council and City Staff (referred to throughout this document as the 2022 Grand Jury report) • The 2023 Review of Outstanding Issues and Concerns Raised by the Findings and Recommendations of the 2022 Santa Clara Civil Grand Jury Report (referred to in this document as the 2023 Internal Review)
Within this context, City leadership expressed interest in an assessment that could both detail current conditions and provide constructive and forward-looking recommendations for how the City’s leadership team can adjust operations to align with public sector best practices.

Moss Adams serves as the outsourced internal auditor for the City, and reports to the City Council’s Audit Committee. As part of the 2022–23 internal audit work plan, the Audit Committee approved this Enterprise Leadership Assessment.

The purpose of this assessment is to evaluate the effectiveness of the City’s management and governance collaboration framework and provide recommendations to strengthen and streamline procedures to align with best practices for municipal leadership. As part of this work, we evaluated governance topics, including:
• Council’s capacity to set the City’s strategic direction and monitor financial sustainability • Council meeting procedures and resources
• Working relationship and collaboration between Council members, City management, and staff • Training and onboarding
• Committee and commission roles, core function, and support Moss Adams conducted this engagement between March 2023 and June 2023. The project consisted of four major phases.

PHASE DESCRIPTION
1 Start-Up and
Management
 Project initiation consisted of collaborative project planning with the City and project management, including developing our scope of work and final work plan.
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PHASE DESCRIPTION
2 Fact-Finding and
Data Collection
 The second phase included interviews, document review, and best practice research. We worked with City staff to obtain the most current information and insights.
• Interviews: We conducted interviews with 23 members of City staff and City Council members.
• Document review: We received documents including policies, procedures, planning documents, reports, and others.
• Best practice research: Based on the opportunities for improvement identified, we conducted research to ascertain best practices within the public sector.
3 Analysis  Based on the information gained during our fieldwork phase, we assessed the current conditions and identified opportunities for improvement.

Leveraging best practice information and our own experience from working with similar entities, we developed practical recommendations. 4 Reporting Results  We communicated the results of our analysis with observations and recommendations presented first in a draft report that was reviewed with management to confirm the practicality and relevance of recommendations before finalizing the report.

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OBSERVATIONS AND RECOMMENDATIONS
Based on the input gathered from interviews, document review, focus groups, and comparisons to best practices, we prepared a comprehensive set of observations and recommendations.

1. Observation While the City has established many policies that are aligned with best practices, there are opportunities to increase the effectiveness of current policies.

Recommendation A. Continue current efforts to review, update, and expand the City’s governance policies, including the Ethics Policy and Commission Handbook.

B. Establish a process to ensure all governance policies are reviewed at least once every five years.

Best Practice
In addition to regulations and codes, many city councils have adopted formal rules of procedure to govern the conduct of their meetings and/or provide guidelines for collaboration. The motivation in adopting rules is usually to increase the efficiency and effectiveness of meetings, improve communication, and manage conflict. The basic premise in adopting rules is to ensure that governance group interactions will run smoothly and follow a generally accepted format.

These types of city council policies often cover the following categories:
• Code of conduct, ethics, or group norms
• Council meeting processes and agenda development
• Council communications with staff
• Council communication with members of the public
• Use of technology
• Conflict of interest
• Committees and commissions-specific topics
○ Purpose and relationship to City Council
○ Selection and appointment
○ Meeting processes and agenda development
○ Planning and reporting
Current Conditions
The City has adopted several governance-related policies, including the primary documents detailed below.
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City Council Procedures Manual
In February 2023, the City Council adopted Resolution 23-021 to establish the Cupertino City Council Procedures Manual. In alignment with best practice, the manual include guidelines for many processes, including communication, meeting management, decorum, and decision-making. The manual also incorporates references to the applicable sections of the Municipal Code to provide administrative guidelines to comply with relevant provisions. Interviewed staff generally noted that the Procedure Manual is a welcome improvement. However, the usefulness of this document is highly dependent on whether City Council adheres to the practices described within.

Ethics Policy
The City’s current Ethics Policy applies to City Council, appointed officials, and City staff with the purpose of promoting public confidence in the integrity, effectiveness, and fairness of City operations.

However, as noted in the 2022 Grand Jury report “the current Ethics Policy is less comprehensive [than previous versions] and ignores the subject of councilmanic interference found in the rescinded version. Thus, there are significantly fewer ethical requirements and standards for councilmembers.” The new City Council Procedures Manual strives to address this issue by stating that “City Council may enforce repeated or serious violations of the rules set forth in the Manual through a censure action placed on a Council agenda." At this time, the City Council is planning to consider revising the Ethics Policy in the first quarter of fiscal year 2024.

While the Ethics Policy references conflicts of interest, the City has not established a separate conflicts of interest policy.

Technology Use
The City adopted a Technology Use Policy in November 2018. The policy applies to City employees, elected officials, commissioners, contractors, consultants, temporary workers, interns, volunteers, and vendors using City technology resources. In alignment with best practice, the policy covers a range of topics, including cybersecurity, the California Public Records Act, confidentiality, prohibited use of technology, and violations. However, the policy has not been updated since 2018 and contains some outdated information (like a reference to pending litigation).

Commission Handbook
The City established a Commission Handbook in 2021 to provide guidance to the City’s various commissions and committees. In alignment with best practice, the handbook builds off of the tenets laid out in the municipal code and covers a range of topics, including commissions’ purpose and relationship to City Council, management, and staff, as well as commission membership, meeting processes and agenda development, and communications. However, this handbook has not been reviewed for alignment with the new City Council Procedures Manual and it is unclear whether it applies to committees.

At this time, the City Council is planning to consider revising the Commission Handbook in the first quarter of fiscal year 2024.
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Policies and Guidelines on Sister Cities, Friendship Cities, and International Cupertino Delegations for the City Of Cupertino
The City has established a policy to help guide activities around Sister Cities, Friendship Cities, and international delegations. The document outlines travel and expense guidelines for Council members who are supporting these programs. However, the City has not yet developed a general travel and expense policy for Council members.

Recommendations
• Continue current efforts to update governance policies, including:
○ Reviewing the Ethics Policy to ensure it aligns with best practice. ○ Reviewing the Commission Handbook to ensure it is aligned with other City policies, including the City Council Procedures Manual and the Ethics Policy. As part of this work, it will be important to clarify whether this handbook is relevant to City committees. ○ Considering developing a standalone conflict of interest policy that applies to Council members.
○ Considering developing a general travel and expense policy that applies to Council members. • Adopt a process to review and update governance-related policies at least once every five years. • Continue efforts to implement the City Council Procedures Manual and hold participants accountable to the policies and procedures. See the Meeting Cadence and Processes section for more details.

2. Observation With the adoption of the City Council Procedures Manual and other recent changes, the City has made positive progress toward increasing the effectiveness of City Council meetings. However, ongoing challenges remain to ensure that meetings are productive and timely.

Recommendation Continue current efforts to implement the City Council Procedures Manual and hold meeting participants accountable.

Best Practice
City council meetings play a crucial role in local governance, where elected officials convene to make decisions, address community concerns, and shape the future of their cities. Establishing best practices for meeting cadence and processes is essential to ensure efficiency, transparency, and effective decision-making. By following best practices, city councils can foster an environment that allows for informed discussions and ultimately leads to better outcomes for their communities:1,2 In general, best practices for effective public meetings include:
1 Planning and Leading Effective Meetings, NLM
2 Guide to Good Meetings, ICMA
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• Established Procedures: The city should set clear procedures for meeting structure, agenda, decision-making, conflict resolution, and use of a consent agenda. • Reasonable Cadence and Length: Meetings should be held as frequently as needed to accomplish critical work. Research indicates that shorter meetings are generally better meetings, as it becomes more difficult to maintain focus over time. • Effective Meeting Facilitation: Meetings should be led by skilled facilitator, such as the mayor or chair, to manage discussions, maintain decorum, and ensure efficient use of time. Encourage respectful and constructive dialogue among council members and establish clear rules and protocols for productive meetings.
• Preparation and Pre-Meeting Communication: Meeting participants (e.g. council, commission, or committee members) should be provided with sufficient time to review meeting materials in advance. Distribute agendas, reports, and supporting documents to allow for thorough preparation, informed discussions, and informed decision-making. Within the public sector space, 1:1 preparation meetings with management are frequently used to provide elected officials with time to ask questions and understand issues before a public meeting is held. • Engaged Participants: Meeting participants should be able to actively engage with the meeting content and respond to feedback. They should employ professionalism and follow any codes of conduct or group norms.
• Technology and Accessibility: Technology should be leveraged to enhance meeting accessibility and public engagement. Explore options for live streaming, video conferencing, or online comment submission to enable broader community engagement, especially for those unable to attend in person.

Current Conditions
In alignment with best practice for establishing procedures, the City recently adopted the City Council Procedures Manual. The manual documents processes for key items like decision-making, agenda development, decorum, communication with staff, and use of a consent calendar.

Despite the implementation of the manual, interviewed staff reported that meeting efficiency and effectiveness remains a high area of concern. Staff note that time limits are not always enforced, there is little group consensus about discussion priorities (so items with relatively minimal impact may take up significant discussion time), and items are routinely removed from the consent agenda for additional discussion.

Within this context, staff noted that agenda items were frequently bumped to the next meeting. As a result, staff reported the common experience of sitting through hours of a meeting and not being able to present their agenda item—which is both a waste of staff resources and a challenge to employee morale. To help combat this issue, the new City Council Procedures Manual has established time limits for discussion items and questions. Interviewed staff noted that this was a step in the right direction, but ongoing challenges remain.

In terms of the frequency and length of meetings, the number of City Council meetings has been high in recent years, with 63 meetings held in 2021 and 64 in 2022. Council meetings have also historically extended into late hours. Between 2020 and 2022, the average length of Council meetings was over five hours (5.1 hours in 2020, 5.7 hours in 2021, and 5.2 hours in 2022). Given that meetings start at 6:45 pm, this means that participants were routinely in meetings that ran past midnight. Long meeting lengths impact the productivity, wellness, and safety of the Council members, staff, and community participants.
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The City Attorney and the Mayor play significant roles in ensuring that the meeting agenda is adhered to and that Council conversation does not stray off topic or relitigate decisions that have already been made. Interviewees noted appreciation for the City Attorney’s and Mayor’s efforts in this area.

In alignment with best practice and regulations, the City provides agenda materials at least six days before standard Council meetings. Council members have the opportunity to ask questions through email between the time the agenda is posted and when the meeting is held. Staff responds to these questions by way of an addendum or desk item to the staff report. In addition, the City management team has expanded the practice of offering 1:1 preparation meetings to City Council members. While individual City Council members must voluntarily opt into these meetings (and Council members do not always choose to do so), staff and some members of Council report that these meetings are effective in terms of increasing communication and collaboration.

In alignment with best practice, the City provides live broadcast and on demand coverage of city meetings. In addition, members of the public may provide comments in-person, online, or via telephone.

Recommendations
• Continue current efforts to implement the City Council Procedures Manual and hold participants accountable to the policies and procedures. This will require ongoing and concerted effort on the part of the Mayor, members of City Council, City Attorney’s Office, City Clerk, and City Manager’s Office. In particular, City staff should continue to provide the Mayor with active support to ensure the Mayor is well positioned to keep meetings on track. • Continue current efforts to provide 1:1 pre-meetings between individual Council members and management for upcoming council agenda items. See the Collaboration and Relationships section for more details.

3. Observation There is a well-documented history of mistrust and poor communication between the Council and management.

Recommendation A. Continue current efforts to implement recommendations from the 2023 Internal Review, with a focus on expanding the use of 1:1 premeetings with Council members B. In alignment with Municipal Code guidelines, consider developing and implementing a set of practical criteria to determine when requests for information will require a significant allocation of staff time or otherwise exceed the code guidelines.

C. Continue current efforts to clarify roles and responsibilities and build productive working relationships by providing regular governance trainings and retreats.
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Best Practice
City council collaboration, productive group dynamics, and trust in management are vital aspects of effective local governance. The following are characteristics that are commonly found in high-function governance teams: 3,4
• Defined Roles and Responsibilities: Clearly defined roles help council members and staff avoid confusion, ensure accountability, and enables efficient collaboration. For cities like Cupertino that have chosen to operate under the Council-Manager form of government, operational responsibilities are delegated to the City Manager from City Council, while City Council is responsible to guide the strategic direction of the organization by setting policy, providing oversight, and supporting City staff.5
• Mutual Respect: Mutual respect and professionalism are baseline requirements for healthy working relationships. This behavior is characterized by open communication, active listening, adherence to codes of conduct or group norms, respect for roles, appreciation for diverse viewpoints, active preparation, and commitment to working in collaboration to move the organization toward its goals.
• Clear Communication: Focused, concise, and direct communication can provide a strong foundation for building trusting and productive relationships. • Collaboration with Staff: Productive relationships between council and staff often begin with respecting roles, recognizing individual expertise, and showing support for city employees.

Current Conditions
As reported by staff and Council members, and documented in both the 2022 Grand Jury report and the City’s subsequent 2023 Internal Review, there are varying opinions within City Council about the ultimate role that Council members are meant to play. For example, it is apparent that some Council members perceive the oversight role to encompass highly operational work, like conducting independent research or analysis. This type of behavior both causes tension with staff as it is a clear signal that their expertise and work is not trusted; it is also a poor use of time and ultimately a distraction from the more critical work of the Council. While oversight is a critical component of good governance, it must be predicated on a baseline trust that the City Manager has hired competent and qualified staff to perform operational functions.

In alignment with best practice, City management does provide training related to roles and responsibilities to help onboard new members of City Council. See the City Council Onboarding and Training section for more details.

In regard to mutual respect, there is a well-documented history of mistrust and conflict between Council and management. While interviewed staff report some positive progress in recent months, there are still regular challenges in terms of professionalism, respect, and positive intent. There is a strong need to rebuild trust within the Council and between the Council and management.

In terms of communication, one of the most frequently cited ongoing challenges is related to email requests from Council members. As documented in the 2023 Internal Review and reported by interviewed staff, several Council members have continued the practice of sending a high volume of 3 Building the Best Relationship with Your Council, ICMA 4 Strategies for creating a more collaborative, effective council, Western City. 5 Making it Work: The Essentials of Council-Manager Relations, ICMA 517
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emails, averaging 50-70 initial emails per week, not counting any follow-up emails. This practice is ineffective for communication purposes, creates significant workload for staff, and is widely perceived to be an obstruction tactic. Council members at times request responses to questions posed by the public as if they were the Council members’ own. This pass-through of information requests without vetting creates work efforts where it may not be effective or even considered in the decision-making process.

The City’s Municipal Code provision § 2.17.043 clarifies that the City Manager may determine when individual council member requests are overly onerous (and thus should be directed to staff through a collective instruction from the entire City Council). The code states that the following guidelines should be considered when making this judgement:

A. Is the request specific and limited in scope so that staff can respond without altering other priorities and with only minimal delay to other assignments? B. Is the request a "one time" work requirement, as opposed to an on-going work requirement? C. Does the response to a request require a significant allocation of staff resources (generally defined as consisting of more than one staff person, or a single staff person working on the request in excess of two hours)?
However, staff report that it has been challenging to exercise these guidelines in a practical, consistent, and productive way.

Several interviewed staff noted that it has been extremely challenging to accomplish operational work given the number of staff hours required to respond to these requests, in addition to preparing staff reports and materials for regular Council meetings. As noted in the Meeting Cadence and Processes section, the City management team has expanded the practice of offering 1:1 preparation meetings to City Council members as an option for more efficient and direct communication.

In alignment with best practice, the City has implemented City Council retreats as an opportunity for ongoing relationship building and professional development.

Recommendations
• Moss Adams concurs with the recommendations to improve collaboration made within the 2023 Internal Review. In particular, the City and individual councilmembers should continue efforts to utilize the 1:1 meetings as a more efficient means of sharing information. • In alignment with the City’s Municipal Code provision § 2.17.043, the City Manager should consider developing a set of practical criteria to determine when individual Council member requests for information exceeds standard guidelines as outlined in the code. Ideally, this type of criteria could provide a consistent, objective, and efficient means to evaluate incoming requests. • Continue current efforts to clarify roles and responsibilities and build productive working relationships by providing regular governance trainings, retreats, and strategic planning work sessions.
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4. Observation The City Council onboarding and orientation process has recently been updated to increase its effectiveness. This process could be further strengthened by focusing additional attention on roles, responsibilities, and practical application of guidelines.

Recommendation Take steps to expand and strengthen the orientation process for new Council members.

Best Practice
Onboarding, orientation, and training for new city council members are critical to their successful integration into their roles and the effective functioning of the council as a whole. By implementing a robust onboarding and training program, cities can equip new council members with the knowledge, skills, and resources needed to navigate their roles effectively. This contributes to a cohesive council, enhances decision-making, and strengthens the council's ability to serve the community.6 Comprehensive onboarding support typically involved the following components:
• Orientation Program: The organizations should develop a comprehensive orientation program to familiarize new council members with their roles, responsibilities, and the governance structure.

The program should address:
○ Overview of the council's purpose, functions, codes, and legal obligations ○ Insights into the local community's history, demographics, priorities, and challenges ○ Definition of roles and responsibilities of council members, including their specific duties, expectations, areas of focus, and understanding of how their role contributes to the overall work of the group
• Ethics, Policies, and Procedures Training: The organization should offer training on key policies and procedures that govern council operations. Guidance should be provided on meeting protocols, code of conduct, ethical standards, and conflict of interest guidelines. The organization should ensure that new council members understand their legal obligations, including compliance with relevant legislation and regulations.
• Financial and Budgetary Training: The organization should provide training on municipal budget processes, financial management, and fiscal responsibilities, and help council members understand the budgetary constraints, revenue sources, and expenditure allocation. The training should also familiarize them with financial reports, audits, and accountability mechanisms to ensure effective stewardship of public funds.
• Support from Staff or Liaisons: The onboarding process should be provided in collaboration with staff members or designated liaisons who can provide guidance and support to new council members. Ensure that staff are available to address questions, provide administrative assistance, and facilitate access to necessary resources or expertise. • Continuous Learning and Professional Development: Ongoing learning opportunities for council members should be provided to enhance their skills and knowledge in governance, leadership, 6 Making it Work: The Essentials of Council-Manager Relations, ICMA 519
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and effective decision-making. Encourage participation in workshops, conferences, and training programs that promote professional growth.

Current Conditions
In alignment with best practice, the City has established a two-day orientation program coordinated by the City Clerk’s Office. The program consists of several intensive sessions that cover topics including the Council’s core functions, roles and responsibilities, regulatory requirements (like Brown Act rules), meeting procedures, and a deep dive with department heads presenting on the purpose and mission of their respective departments. This work is collaboratively supported by the City Manager’s Office, City Attorney’s Office, City Clerk’s Office, and the department directors.

Interviewees noted several opportunities to continue to improve the onboarding process, including:
• Spacing out information so that new members are not fatigued by information overload over the course of a few days
• Providing refresher trainings throughout the year
• Providing peer-to-peer learning opportunities where new members can receive input and guidance from more veteran members
• Increasing practical examples and scenarios to help increase the practical applicability of the trainings
• Requesting full participation of all Council members (this year one member of council chose not to participate in the orientation)
In alignment with best practice, the City does offer opportunities for Council members to engage in ongoing professional development opportunities on an ad hoc basis.

Recommendations
• Continue to expand and strengthen the orientation process for new Council members. In particular, the City may benefit from extending the onboarding timeline, providing refresher trainings throughout the year, and adding scenario exercises to increase the practical applicability of trainings.

5. Observation The City has established many best practice elements of a comprehensive ethics program. However, there are gaps in the City’s compliance enforcement.

Recommendation Strengthen internal processes for tracking and holding elected and appointed individuals accountable to timely completion of Form 700 Disclosures.

Best Practice
The role of elected officials—and government as a whole—is to serve the public interest. When government representatives act ethically and avoid engaging in behavior that promotes any private 520
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interests, they are acting for the common good. To foster an ethical operating environment, it is common for cities to establish the following components:
• A Fraud, Waste, and Abuse Program, including an ethics hotline where members of the public and the city government can report issues for investigation • Disclosure of potential conflicts of interest (primarily accomplished via Form 700 within the state of California)
• Trainings and expert advice on government ethics (including topics like the Brown Act) • Processes to track and report on compliance with standard disclosures and regulations • Commitment from leadership to hold all parties accountable, including Council, Committee, and Commission members
• An ethics policy that applies to all elected and appointed officials, as well as staff Current Conditions
In alignment with best practice, the City has implemented the following:
• A formal Fraud, Waste, and Abuse Program and related ethics hotline was implemented in 2022. • The City provides required ethics and anti-harassment training for Council, Committee, and Commission members as required by state law, and the City Attorney provides expert counsel as needed. In addition, Council members are given the opportunity to participate in ethics education at League of Cities conferences.
• The City Clerk’s Office and City Attorney’s Office provide guidance to elected and appointed officials in filling out the Form 700 Disclosures and complying with other regulations.

Several interviewed staff reported that at least one Commission member had not filed their Form 700 Disclosure. While the City Clerk’s office has been aware of this issue for over a year and made efforts to correct the issue, it has not yet been resolved. This indicates that there are gaps in the current process to hold participants accountable for compliance in this area.

Recommendations
• Strengthen internal processes for tracking and holding elected and appointed individuals accountable to timely completion of Form 700 Disclosures and any other required documentation.

If governance group members have not completed this form in a timely manner, they should face disciplinary action up to and including removal from their position. • See the Policies and Procedures section for more details on the City’s Ethics Policy. 521
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6. Observation A core function of any governing body is to set and monitor the strategic direction of the organization. While the City Council has adopted a twoyear Work Program to prioritize annual initiatives, it has not yet developed a long-range strategic plan.

Recommendation A. Consider developing a long-range strategic plan to increase the City’s ability to strategically plan and advance initiatives.

B. Continue current efforts to utilize and refine the annual Work Program prioritization practice.

C. Consider expanding the City’s reporting processes to more effectively track progress toward strategic goals over time.

Best Practice
A core function of any governing body is to set and monitor the strategic direction of the organization.

Within this context, it is best practice for City leadership to develop a multi-year strategic plan and then select key priorities via a collaborative process between Council and management on an annual basis.7,8 By grounding work in the long-term vision for the community and core mission of City government, the City Council can ensure that resources are strategically allocated to support longterm success. In addition, strategic plans can help provide consistency of vision and direction—even as members of the Council or the management team exit the organization.

Typically, strong strategic plans are characterized by:
• Long-Term Vision: The organization should have a clear vision statement that captures the longterm aspirations for the community. Strategic plans also typically incorporate mission and value statements.
• Policy-Level Guidance from Council: The governing body should be actively involved in shaping the plan by setting high-level policy guidance and broad goals. Within this setting, the management team should be responsible for determining and implementing the best means to achieve these objectives.
• Public Input: The City serves the community, so planning activities should take the community’s needs into consideration. Seeking community input during the planning process is critical. • Annual Prioritization: All organizations have resource constraints. As such, realistic plans should prioritize activities in a clear order to help guide resource allocation. An annual review of goals and a process to prioritize work for the upcoming fiscal year ensures that work is guided by longterm strategies and responsive to emergent needs. • Link to Financial Data: Planning should be linked a long-range financial plan that forecasts revenue, identifies unfunded liabilities, determines long-term debt capacity, analyzes external economic environment, and determines the long-term impacts of priorities and goals.9 7 GFAO Strategic Planning
8 Strategic Planning Revisited, ICMA.
9 GFAO Planning Resource Center
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• Equity Considerations: Equity should be incorporated into every step of the strategic planning process to ensure that all members of the community are represented and have a voice in the process.
• Outcome-Based Key Performance Indicators: Strong plans include key performance indicators (KPIs) and metrics to measure progress and success. Ideally, KPIs are primarily focused on the ultimate outcomes the organization is hoping to achieve, rather than output measures of activities. With this type of tool, leadership can regularly monitor and evaluate the city's performance to track the achievement of strategic goals.

Current Conditions
The City does not currently utilize an organization-wide, long-range strategic plan that lays out a vision for the City and guides priorities, projects, and resource allocation. This is in part due to high turnover in the City Manager’s Office, which has limited organizational capacity to perform long-term strategic work. However, the City has adopted many related planning elements:
• Strategic Goals: In February 2020, the City Council established a number of strategic goals to provide a framework for City priorities and guide annual development of the Work Program— including Public Engagement and Transparency, Transportation, Housing, Sustainability, and Quality of Life.
• Annual Work Program: The City has established an annual Work Program process that identifies and selects priority projects and initiatives that fall outside the City’s regular operations for execution within the following year.
○ The Work Program document includes information about the project title, objective, estimated budget, allocated budget, and related department, commission, goal category, and General Plan Guiding Principles.
○ In the past, the Work Program has expanded to include a high number of unprioritized items.

To combat this issue, City management established a new facilitated prioritization process in 2023. This step is a significant improvement in terms of alignment with best practice. • Other Guiding Plans: In addition to the Work Program, the City has many individual plans for work that line up with many of the best practice criteria above. Examples include the General Plan, Capital Improvement Program, and Climate Action Plan.
• Financial Forecast: In alignment with best practice, the City has developed a 10-year financial forecast to address various expenditure and revenue components and assumptions. • Progress Reporting: In alignment with best practice, the City has developed a dashboard to transparently communicate progress toward completing the City’s Work Program projects. This is commendable. In addition, the City reports on department-specific KPIs as part of the budget process.

Based on staff interviews, staff reports, and a review of documentation there are several interconnected challenges or areas of misalignment with best practice in relation to the City’s planning environment:
• Given the lack of a long-range strategic planning framework, some staff noted that Work Program items and Council priorities are not always clearly linked with the City’s big-picture goals. In addition, many interviewees were not aware of the City’s 2020 strategic goals. This may indicate that this framework is not providing sufficient specificity and/or is not being widely utilized to guide decision-making.
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• City Council has a tendency toward more tactical and operational initiatives, rather than staying at the policy level to align the City with its vision. Ideally, the Council should be setting high-level goals and objectives and the management team should be responsible for determining the best means to accomplish the end.
• The City’s Work Program has sometimes created new ongoing programs without sufficient or identified resources to support them. This results in staff taking on additional workload without appropriate support. This indicates that planning activities are not sufficiently tied to resource allocation decisions.
• The Work Program does not explicitly incorporate equity considerations. This indicates that there may be blind spots in relation to the City’s understanding and approach to solving issues. • While public input has historically been actively solicited as part of the Work Program process, this step was forgone this year in order to tackle the backlog of critical work and make progress.

This is reasonable given the circumstances, but the City should reintroduce public input in the future.
• While the City reports on progress toward Work Program activities and includes KPIs in its budget, the organization has not yet established outcome-based performance measures to track progress toward high-level goals. As a result, progress reporting is often reliant on measures of activities or outputs—rather than focusing on the long-term outcomes that the City is hoping to create.

Recommendations
• Consider developing a long-range strategic plan—that builds upon the City’s current goals and vision—to increase the City’s ability to plan and advance initiatives. • Continue to utilize and refine the annual prioritization practice, with a focus on determining what is achievable considering the City’s staffing and funding resources within a given fiscal year. • Implement the practice of reviewing progress toward strategic goals on a quarterly or semi-annual basis. As part of this work, the City should identify outcome-based performance measure to track and report on progress. In addition, the expanded use of performance dashboards, indicators, and other standardized reporting tools would strengthen the City Council’s ability to provide appropriate oversight and track progress over time.
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7. Observation While the City has established some strong community engagement practices, interviewees noted that Council members may have an overreliance on anecdotal evidence and/or public comment that may not be representative of the wider community perspective.

Recommendation A. Consider setting clearer expectations for the intended scope of community engagement at the start of City initiatives.

B. Continue current efforts to implement a statistically significant, representative community survey.

C. Consider providing media and crisis communication training to all Council members.

Best Practice
Community engagement is an essential component of a well-run local government. By utilizing community input, local governments can improve decision-making, ensure transparency, foster community participation, and build trust with community members.10,11 Successful community engagement programs are multi-pronged, and often include a combination of the following practices:
• Public meeting and hearings (often required by regulation) • Focus groups or work sessions
• Social media, web pages, or mobile applications
• Email, newsletters, text, or other digital communication • Advisory boards, committees, or commissions
• Volunteer programs
• Representative community surveys12,13
• Collaboration with representative community partners
For crisis situations, it is best practice to have a dedicated point of contact for communication with the public. In addition, many cities provide media training to council members to ensure they are wellprepared to engage as needed.

Current Conditions
In alignment with best practice, the City has invested in a centralized communication team that is responsible for managing various communication channels, including social media and media outlets.

The City has also established some creative programs to engage with residents, such as the Cupertino Block Leader Program which was developed as a collaborative way to work with residents 10 Community Engagement and Public Strategy, ICMA
11 Building an Effective Community Engagement Strategy, ICMA 12 ICMA, The Voice of the Public
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to enhance community preparedness, communication, and resilience at the neighborhood level. The City also regularly solicits input from the community regarding specific projects. For example, for significant policy initiatives such as updating the building code, the City actively seeks public feedback through surveys, focus groups, and other methods.

However, the City has not established a standardized approach to what constitutes comprehensive or sufficient community input for a given initiative. As a result, staff report that at times City Council has repeatedly requested additional avenues for community feedback, which has heightened workloads.

In alignment with regulations, the City provides space for public comment at regular City Council meetings and other venues. Interviewed staff and some Council members report that comments made by community members at public meetings are sometimes interpreted to be representative of the views of all stakeholders and to be factual without substantive validation. Within this context, community members with the means, ability, access, and interest in participating in public comment may receive oversized responses to their issues.

In recent years, the City has not utilized a representative community survey to gather wholistic information about community perception of City services. However, a survey of this type is budgeted and planned for the 2024 fiscal year. By returning to this practice, the City can help provide context for individual public input and help ground decision-making in majority interests, rather than relying on individual feedback provided via the public comment process. Ideally, the City will continue to administer community surveys on an annual basis and ask similar questions each year. In this way, City leadership will both establish a baseline and receive comprehensive insight into trends.

In terms of crisis communication, City policy dictates that the Mayor is the designated spokesperson for the Council. However, Council members have not been provided with media training and some staff report that there have been instances of Council members sharing comments with the media without notifying City staff.

Recommendations
• Consider implementing processes to set clearer expectations for the scope of community engagement at the start of major City initiatives. This may take the form of staff establishing baseline definitions for appropriate levels of community engagement for different types of projects or proactively documenting the intended outreach plan associated with major projects. • Continue current efforts to implement a statistically significant, representative community survey to gather baseline information about resident’s needs, interests, and perception of City services. • Consider providing media and crisis communication training to all Council members. As part of this training, it would be beneficial to clarify individual roles and responsibilities, including those of the Mayor and Vice Mayor.
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8. Observation The City utilizes multiple commissions and committees to support Council decision-making. There are opportunities to increase the effectiveness of some of these groups.

Recommendation A. Establish charters, including clear roles and responsibilities, for each commission and committee that outline the group’s purpose and member roles and responsibilities.

B. Review additional opportunities to streamline governance groups.

C. Consider reviewing the names of governance groups to introduce a consistent naming convention for commission versus committee.

Best Practice
Commissions and committees play an important role in local government by acting in an advisory capacity, providing in-depth analyses, and making recommendations to inform city council decisionmaking.14 These types of governance groups are an effective way of involving citizens in the engagement process of local government.

In terms of committee and commission structure, the following are best practices for effective use of these types of groups:
• Each group should have a clearly defined purpose, scope of authority (including whether groups are meant to be advisory, regulatory, or operational), responsibilities, and legal obligations. This information is typically defined within municipal code and/or via charters or other formal documents.
• Leadership should regularly evaluate the existing governance group structure and ability to adjust it based on the organization or community’s changing governance needs. • While there is no established standard for the ideal number of governance groups, leadership groups should consider the following factors when deciding to add, eliminate, or combine groups:
○ Is this group fulfilling a high-priority need for our community? ○ Is this group fulfilling a distinct purpose for our community or could additional scope and/or responsibilities be added to a current group?
○ Do we have sufficient staff to effectively support this group? Governance groups are sometimes called boards, commissions, committees, or councils depending on their function. Frequently, the term “commission” is used to indicate a group that has powers and duties established by ordinance and have either regulatory or functional responsibilities. The term “committee” is frequently used to denote a group that is advisory in nature. However, the terminology used is often a matter of local preference.15
14 Local Government Citizen Advisory Boards, MRSC
15 Maryland Municipal League: Citizen Boards, Commissions and Committees 527
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Current Conditions
The City has established various committees and commissions to address specific areas of focus.

There are ten commissions tasked with advising the City Council in the formation of policy. With the exception of the Planning Commission, all other commissions function in a strictly advisory role to the City Council, as is appropriate and consistent with best practices. Commissions include:
• Arts and Culture Commission
• Bicycle Pedestrian Commission
• Housing Commission
• Library Commission
• Parks and Recreation Commission
• Planning Commission
• Public Safety Commission
• Sustainability Commission
• Technology, Information, and Communications Commission • Teen Commission
The City also has three committees and a council. Generally, one or two Council members are assigned as members, and the committees may include members from the public or staff. With the exception of the Administrative Hearing Committee (which conducts administrative hearings), the purpose of the committees is to review specific topics affecting the City and make recommendations to the City Council.
• Administrative Hearing Committee
• Audit Committee
• Disaster Council
• Sister City Committee
The City Council also occasionally creates topic-specific, time-delimited subcommittees (which are usually led by two Council members) to address a particular concern.

In alignment with best practice, the City reviewed the purpose and number of governance groups in early 2023. Based on staff recommendations, the City Council consolidated or eliminated several groups to reduce the overall number of governance groups from 17 to 13 (per City Council Ordinance No. 23-2247). A recent staff report determined that cities in Santa Clara County on average support 12 commissions and committees, not including any active council subcommittees. As such, the City is now significantly closer to the local average.

In terms of the core function of the City’s governance groups, almost all groups (regardless of whether they are named “commission” or “committee”) are advisory bodies. With the exception of the Administrative Hearing Committee, the foundational duties of all other governance groups are codified in the City’s Municipal Code. However, the City has not yet established the process of developing individual charters to outline the group’s purpose and member roles and responsibilities. 528
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Staff report that there have been ongoing challenges ensuring that all governance group members understand the scope of their authority. It was frequently reported that certain group members believe they have the authority to direct staff on administrative matters or assign work tasks. This is a breach of the group’s actual authority, and can create tension when staff members are put in a position to deny or redirect the work requests.

In addition, interviewees noted that several groups often do not have significant volumes of work, which can create challenges to keeping members productively engaged. The following groups were noted:
• Public Safety Commission
• Sustainability Commission
• Teen Commission
Recommendations
• Establish charters for each commission and committee that outline the group’s purpose and member roles and responsibilities in more detail than is currently provided in the Municipal Code.

In particular, it will be critical to outline what the advisory function fully entails and clarify that commissions and committees cannot direct staff work or assign tasks. • Review additional opportunities to streamline governance groups. In particular, the City should evaluate the following:
○ Housing Commission: It is common for Housing Commissions to be combined with Planning Commissions, given the highly interrelated areas of work.16 ○ Library Commission: The local library system is administered by the Santa Clara Library District, rather than the City. Within this structure, it is questionable whether a Library Commission supports a core function of the City. To provide input on time-specific topics like the location of a new library within the City, it may be more effective to utilize an ad hoc committee or work group.
○ Public Safety Commission: Consider reviewing the core function of the Public Safety Commission. While fire and police services are provided by the County (and therefore not directly managed by the City), this commission also advises on issues related to traffic and general public safety.
○ Teen and Sustainability Commissions: Consider reviewing the Teen Commission and Sustainability Commission to determine if this work may be better carried out through alternative structures and/or whether fewer annual meetings may be appropriate. • Consider reviewing the names of governance groups to introduce a consistent naming convention for commission versus committee. Given that the majority of the groups are advisory in nature, it may be beneficial to rename the commissions to “committees.” The Planning Commission would be the primary exception to this, as the group’s core function is not solely advisory. 16 Housing Data: Housing Committees
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9. Observation The City has documented processes to select and appoint community members to governance groups. This process could be strengthened by adding relevant qualification criteria.

Recommendation Review and establish the qualification criteria for each commission and committee member to determine if the City would benefit from adjustments.

Best Practice
When appointing community members to governance groups, it is best practice to document guidelines for position recruitment, evaluation, and selection.17,18 Documents typically address the following:
• Appointment Process: The organization should establish a transparent and fair appointment process for committee or commission members. Define the roles of the governing body (such as the mayor, city council, or relevant authority) in appointing or approving members. Most processes utilize both a written submission and some type of interview process to assess qualifications and fit.
• Terms and Staggering: The organization should document the terms of committee or commission members. There are advantages to limiting the length and number of terms for which members can serve. Limiting terms can help avoid overrepresentation of interest groups. However, term limits may also result in the exit of members who have the most experience. By staggering terms, the organization can maintain institutional memory while allowing for new members to join regularly. In addition, another common best practice is to require governance group members to wait a period of time (usually one or two term lengths) before applying for new governance roles.

This helps to ensure broad representation on governance groups. • Composition and Diversity: The organization should document the size and composition of the committee or commission based on the requirements of the work to be done. It is best practice to strive for diversity in membership. Equity principles suggests that membership be representative of the community at large (in terms of sex, race, ethnicity, and geography) in order to promote inclusivity, robust decision-making, and community representation. • Expertise and Qualifications: Some municipalities require only that its governance group members reside in or own a business in the city and demonstrate an interest in the committee subject matter. However, some governance groups—like the Planning Commission—may benefit from specialized expertise or a minimum baseline knowledge within their membership. In particular, groups charged with oversight responsibilities or that deal in highly technical topics often require some degree of subject-matter familiarity from some or all members. This ensures that members can contribute effectively and make informed recommendations, in collaboration with the subject matter expertise that staff provide.
17 Maryland Municipal League: Citizen Boards, Commissions and Committees 18 Local Government Citizen Advisory Boards, MRSC
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Current Conditions
The processes to select and appoint members of commissions and committees is outlined via various City Council resolutions. For example, Resolution 16-137 establishes processes related to recruitment and appointments. In alignment with best practice, the City has also taken steps to expand diversity within the governance groups by adopting Resolution 03-203, which affirms the intention to embrace the City’s demographic diversity when making appointments.

The Municipal Code outlines some considerations for selection criteria for some, but not all, groups.

For example, the Housing Commission chapter notes criteria that the Council should prioritize when appointing members (like applicants who are familiar with the operation of affordable housing or who are renters). However, several groups do not have clear standards or criteria for minimum qualifications for positions within groups that would benefit from technical expertise. Notably, the Planning Commission does not have any documented criteria. Without minimum (or even desired) qualification requirements, it is difficult to ensure that applicants have subject matter familiarity related to the governing group on which they serve.

The City does not currently require governance group members to wait a period of time before applying for new governance roles. As such, governance group members can serve in multiple consecutive positions across various groups.

Recommendations
• Review the qualification criteria for each commission and committee to determine if the City would benefit from adjustments:
○ Consider establishing qualification criteria for select groups to help ensure that the City’s advisory groups contain members with baseline subject matter familiarity to productively engage in their advisory capacity.
○ Consider establishing a waiting period for current governance group members looking to apply for new positions. The goal of this shift would be to encourage broader participation and representation within governance groups.
○ Consider adopting standard commission and committee member interview questions that are germane to their roles and responsibilities.
• Appendix A contains a summary of the current selection criteria for each group as documented in the City’s Municipal Code.
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10. Observation Commission and committee operations—including onboarding, meeting procedures, work plans, and reporting—are not always consistent or effective.

Recommendation A. Continue efforts to expand and formalize onboarding and training expectations for both commissions and committees.

B. Clarify the process and expectation for cancelling unnecessary meetings.

C. Consider adopting the practice of requiring annual work plans for each commission and committee.

Best Practice
Onboarding and Training
Onboarding and training for new commission or committee members are crucial for smooth integration into their roles and the effective functioning of the commission or committee. By implementing a robust onboarding and training program, commissions or committees can facilitate effective participation and engagement of new members. This leads to informed decision-making, collaboration, and overall success of the group’s work in serving the community.

In most aspects, governance group orientations often follow a similar (if abbreviated) format to that of Council orientations (see the City Council Onboarding and Training section). However, committee and commission orientations often focus on additional areas:
• Subject Matter Training: Governance group orientation typically includes some degree of subject matter training or resources to help new members familiarize themselves with the area of focus of the commission or committee. By providing background information, relevant research, and resources, new members can build their knowledge and expertise in their respective areas. • Roles and Responsibilities: Clarifying the roles and responsibilities of the governance group chair, members, and staff can be helpful to support smooth operations. In particular, the chair will play a large role in ensuring productive meetings by facilitating discussions and keeping the group focused.
• Staff Support: Governance group orientations should clearly outline what type of support the group will receive from their staff liaison, as well as introduce other important staff contacts (like the City Clerk’s Office).

Meeting Procedures
Commission and committee meeting procedures should be established in code and/or other formal documents. In terms of meeting cadence, there are no established standards for meeting frequency.

Rather the cadence should be based on the needs of the committee or commission’s function. If there is not active work to accomplish, the group should have a provision to cancel unnecessary meetings. 532
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Annual Work Plans
It is best practice for advisory groups to develop an annual work plan that outlines the group’s priorities, timelines, and any relevant deliverables.19 Regular review of progress and adjustment to the work plan may be required over the course of the year. This type of planning document can help ensure groups are focused on the highest priority work and reduce scope expansion. Given that advisory groups do not have assigned staff to complete operational work, it is important to note that the annual work plans can only refer to work that group members will produce themselves. In addition, work plans should be aligned with and support major City goals, priorities, and/or Work Program items.

Reporting
The reporting structure and expectations for how commissions or committees share information with City Council should be documented. Establishing clear lines of communication and reporting to the governing body ensures that recommendations are documented and considered in decision-making processes. Committees and commissions usually communicate with the governing body and the public by means of written reports, public hearings, and/or verbal communication. In addition, the new Council Procedures Manual requires that at least one commission member be present at Council meetings when the commission’s recommendations are being considered to help facilitate direct communication.

Current Conditions
Onboarding and Training
The City has developed a general onboarding presentation for commissions. The focus of the onboarding presentation is the material covered in the Commission Handbook, including structure of government; commission purpose; attendance; public meetings (Brown Act); conflicts of interest; parliamentary procedures; ethics; City Work Program; and communications.

However, there are opportunities to enhance the effectiveness of the onboarding process. • It is unclear whether this training is presented to committees. • As noted in the Commission and Committee Structure section, there have been ongoing challenges ensuring that all governance group members understand that their core function is advisory in nature and that they cannot direct staff on administrative matters or assign work tasks. • Interviewed staff noted that the current orientation is fairly short and does not go into depth on any issues. The training does not touch on specific responsibilities. For example, some staff noted that the role of the chair is often not specifically addressed, and note-taking processes vary by group.

Meeting Procedures
Meeting cadence varies widely by group, which is to be expected given their differing scopes. Staff report that groups which meet frequently (once or twice per month) have frequently resisted the idea of cancelling meetings when there are no active agenda items. This suggests that additional training 19 Local Government Citizen Advisory Boards, MRSC
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and guidance from staff on this issue may be beneficial to make better use of staff and governing group members’ time, and that meeting frequency could be evaluated.

Work Plans
The City does not require annual work plans for any of their governance groups. In the absence of defined priorities or clear direction from Council, some interviewees noted that governing groups will occasionally find new projects to take on that are outside the scope of the group’s intended role.

Reporting
The City hosts a monthly meeting where all commissions can report on progress and upcoming activities to the Mayor.

Recommendations
• Continue efforts to expand and formalize onboarding and training expectations for both commissions and committees. In particular, it may be helpful to expand the current orientation process and establish consistent processes to provide subject matter training for relevant groups.

Providing opportunities for peer-to-peer learning across governance groups may also be helpful. • Provide additional support for groups that meet frequently (at least once per month) to clarify the process and expectation for cancelling unnecessary meetings. It may be beneficial to introduce a regular check-in between the chair and staff liaison when finalizing agendas to determine if there is a need for the subsequent meeting.
• Consider adopting the practice of requiring annual work plans for each commission and committee, that aligns with City’s goals, priorities, and/or Work Program. The development of annual work plans would need to be supported by staff to ensure they are targeted, meaningful, and reasonable in scope. In many cities, staff liaisons develop draft work plans that are then reviewed, edited, and approved by the group they support.

11. Observation The staff time used to support governance groups represents a significant investment of City resources.

Recommendation A. Review the practice of requesting department directors attend commission and committee meetings.

B. Provide training for staff liaisons annually and when a new individual takes on the liaison role.

Best Practice
Staff support is a crucial element to ensure governance groups can operate smoothly, leverage expertise, and make informed decisions. Staff from across the organization may support different elements of the governance groups, including:
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• Administrative support for meetings (including agenda development, meeting logistics, and taking meeting minutes)
• Compliance support
• Legal advice
• Subject matter expertise
• Training and onboarding
It is common practice to assign a specific staff liaison to provide the primary administrative support and subject matter expertise. Within this setting, it is critical to support liaisons with documentation and training on processes, responsibilities, and expectations.

The most critical best practice is to ensure that roles and responsibilities are clearly defined for all parties. Both staff and governance group members should understand their specific duties, expectations, areas of expertise, and limitations.

Current Conditions
In alignment with best practice, the City has established staff liaison roles to support each commission and committee. In the instances where staff liaison roles are not already filled by a department director, some department directors have recently been asked to participate in these meetings in addition to the staff liaison. While the intention behind this shift was to provide additional support to staff, some interviewees noted that this has created challenges to the staff liaison’s authority and sense of responsibility. When department directors are present, it can undermine the staff liaison’s position and can create confusion about roles.

Supporting governance groups requires significant investment of staff time and City resources. A 2023 review performed by the City estimated that required annual staff liaison time to provide this support totaled more than 4,600 hours.20 In addition to staff liaison hours, the report notes that the “City Clerk’s Office spends significant time (over 1,000 hours) per year on administrative duties for commissions such as orientation, training, and assisting with agendas. The City Attorney’s Office also supports certain commission and committee items and staffs the Planning Commission.” Some interviewed staff reported significant challenges to accomplishing the workload associated with supporting these groups. In particular, the City Clerk’s Office has been struggling with understaffing, which has had a negative impact of their ability to both support governance groups and accomplish other work priorities.

January 17 Staff Report – Staff Liaison Hour Summary21
Commission Annual Staff
Liaison Hours
Committee Annual Staff
Liaison Hours
Bicycle Pedestrian 240 Administrative Hearing
Committee
30 Arts and Culture 200 Audit Committee 230
20 City Council Staff Report January 17: Study Session to consider modifying Municipal Code Title 2 regarding compositions and responsibilities of existing Commissions and Committees 21 City Council Staff Report January 17: Study Session to consider modifying Municipal Code Title 2 regarding compositions and responsibilities of existing Commissions and Committees 535
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Commission Annual Staff
Liaison Hours
Committee Annual Staff
Liaison Hours
Housing 220 Disaster Council 30
Library 350 Economic Development 60
Parks and Recreation 750 Environmental Review 80
Planning 1100 Design Review 40
Public Safety 200 Legislative Review 400
Sustainability 220 Total 870
TICC 120
Teen 300
Total 3,740
In alignment with best practice, the City has documented the liaison duties and expectations.

However, the City does not provide annual trainings for new and returning staff liaisons.

Recommendations
• Review the practice of requesting department directors attend commission and committee meetings. If it is determined that this practice does make sense within the City’s operating environment, it will be critical to distinguish between the role of the staff liaison and the department director. If both department directors and staff liaisons are to attend the meeting, clear expectations for roles and responsibilities should be delineated and communicated.

Department directors should reinforce the expertise and role of the staff liaison, while supporting staff in managing the effective function of the commission. • Provide training for staff liaisons at least annually, and when a new individual takes on the liaison role. Ideally, this training would include key meeting protocols, roles and responsibilities, City policies, and tactics to help the groups stay focused on priorities, reinforce appropriate roles and responsibilities, and address conflicts.
• Continue efforts to right-size the number of committees and commissions to more effectively utilize staff time. See Commission and Committee Structure section for more details. 536
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12. Observation City staff continue to experience a high degree of organizational change and uncertainty. Within this context, it is critical for the City’s management team to provide active communication and change management to increase support of staff.

Recommendation Identify and implement expanded communication and change management practices to improve workplace culture.

Best Practice
Effective communication and change management with city staff are crucial for successful organizational operations and implementation of new initiatives:22, 23, 24 The following are common best practices to help staff navigate significant organizational change or upheaval:
• Transparent Communication: Foster a culture of transparent communication by providing regular updates, sharing information, and actively engaging with staff members. Be open about organizational goals, changes, and challenges, and encourage two-way communication where staff can ask questions, share feedback, and express concerns. • Clear and Timely Messaging: Ensure that messages about organizational changes, new initiatives, or important updates are clear, concise, and timely. Use multiple communication channels, such as staff meetings, emails, intranet, or newsletters, to reach staff members effectively. Tailor messages to different departments or levels of the organization, as needed. • Change Management Strategy: For any major organizational change, develop a change management strategy to guide the related communications. This strategy should include:
○ A clear vision/message that communicates why the change is taking place. Without a clear understanding of the need for change, it is difficult to gain buy-in. ○ A communication plan that outlines the specific communication milestones, methods, and responsible parties. The communication plan should clearly identify what is changing, how it is changing, who will be affected, how City customers will be affected, and when the change will occur.
○ Mechanisms for staff involvement and feedback. Wherever possible, employees should be engaged prior to announcing new changes to define the problem, provide input on potential concerns, and provide suggestions to improve implementation. ○ Training programs, if relevant, to build new staff knowledge and skills. • Staff Involvement and Empowerment: Involve staff members in the change process by soliciting their input, ideas, and concerns. Encourage their active participation in decision-making, problemsolving, and identifying areas for improvement. Empower staff by providing opportunities for training, skill development, and growth aligned with the changes being implemented. • Feedback and Recognition: Create mechanisms for staff to provide feedback on the change process and the impact it has on their work. Actively listen to their concerns, address issues 22 Council-Staff Communication Guidelines, ICMA
23 Preparing for a Culture of Change and Innovation, ICMA 24 Mistakes to Avoid When Communicating Change, ICMA
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promptly, and acknowledge their contributions and efforts. Recognize and reward staff members who adapt well to change and contribute positively to organizational goals.

Current Conditions
The City has undergone and continues to experience a high degree of organizational change and uncertainty. In particular, the high turnover in key leadership positions within the City and the ongoing turmoil in relation to Council/staff relationships has reportedly resulted in low employee morale and a strong (and understandable) resistance to additional change.

Some interviewed staff reported the need for strong levels of communication for leadership and a desire for more engagement and inclusion in decision-making processes—especially on topics that greatly impact staff such as flexible work arrangements. Within this environment, it becomes highly important that the City’s management team is engaged in active communication, change management, and support of staff to help the organization weather change and improve the workplace culture.

Recommendations
• The City’s management team should collaborate to identify and implement expanded communication and change management practices as a means of supporting staff and helping to improve workplace culture. Options may include:
○ Communication Alignment: The City’s leadership team may benefit from establishing specific processes to explicitly identify what information needs to be shared with staff and who is responsible for sharing it. This can be as simple as a checklist that is used at the end of each management team meeting to discuss:
− What information (if any) needs to be communicated out to staff? − Who is responsible for communicating it (individual vs. all department directors)? − How will the message be shared (email, verbal, etc.)? − When will the information go out?
○ Engagement Surveys: Regular (quarterly or semi-annual) employee engagement surveys can provide a means to track baseline and trends. By reviewing and acting upon feedback, the leadership team can continue to build trust with staff. ○ Change Management Training: The City’s management team may benefit from training on communication and change management best practices. By participating in such trainings as a team, City management can then develop a shared vocabulary and begin to identify opportunities to make positive changes to current communication practices.

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APPENDIX A: COMMISSION AND COMMITTEE

SELECTION CRITERIA
The following table contains a summary of the current selection criteria for each governance group as documented in the City’s Municipal Code.

Governance Group Title Selection Criteria
Administrative Hearing
Committee
• N/A
Arts and Culture Commission • Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
• Three members must be City residents
• Membership will be drawn to represent the arts, citizens and business community on an approximately equal basis
Audit Committee • A minimum of two and a maximum of three at large members cannot be officials or employees of the City
• A minimum of two and a maximum of three at large
members cannot cohabitate or be related to a member of
the Committee, the City Manager, or the staff persons
assigned to the Committee
• Members must be a City resident, apart from the at-large member
• In selecting an at-large member, the City Council shall give priority to individuals who have substantial
accounting, audit, or investment experience, preferably in connection with a governmental agency
Bicycle Pedestrian Commission • Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
• Members must be City residents
Disaster Council • N/A
Housing Commission • The commission will include four community members and one representative from a Cupertino business
• Members cannot be an official or employee of the City 539
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Governance Group Title Selection Criteria
• Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
• Members must be City residents, apart from the
representative of a business
• The business representative must represent a business that is located in the City
• In selection of community members, the City Council may give priority to:
○ Applicants who represent the Community
Development Block Grant (CDBG) target areas as
described in the City's Consolidated Plan;
○ Applicants who are familiar with the operation of
affordable housing;
○ Applicants who represent non-profit community
organizations; and
○ Applicants who are knowledgeable about the housing
needs of groups targeted for affordable housing
development which include, but are not limited to, the
following:
− Seniors
− Single parent families
− Homeless persons
− Families of low income
− Disabled persons
− Renters
− First time homebuyers
Library Commission • Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
Parks and Recreation
Commission
• Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
• Members must be City residents
Planning Commission • Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
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Governance Group Title Selection Criteria
• Members must be City residents
• Members must be qualified electors in the City
Public Safety Commission • Members cannot be an official or employee of the City • Members cannot be part of the Sheriff’s Department of the County, either regular or reserve, or members of the
Central Fire Protection District
• Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
• Members must be City residents
Sister City Committee • N/A
Sustainability Commission • Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
• The Commission must include:
○ One representative from a Cupertino-based business,
○ One representative from a Cupertino-based primary,
secondary, or higher educational institution, and
○ Three community members.
• Members must be City residents, apart from the business and educational institution representatives
• Business and educational institution representatives must represent organizations that are located in the City
• In selection of community members, the City Council may give priority to:
○ Applicants who represent the target sectors and
partners as described in the Cupertino Climate Action
Plan (hereinafter referred to in this Chapter as "CAP") ○ Applicants who are familiar with climate change
mitigation and adaptation strategies, greenhouse gas
emissions inventories, resource and utility
conservation, sustainability, and behavior change
○ Applicants who represent non-profit community
organizations and environmental interest groups
Technology, Information, and
Communications Commission
• Members cannot be an official or employee of the City • Members cannot cohabitate or be related to a member of the Commission, the City Manager, or the staff persons
assigned to the Commission
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Governance Group Title Selection Criteria
• Members must be qualified electors in the City
Teen Commission • Members cannot be an official or employee of the City • Members cannot be related to any official or employee of the City
• Members must be City residents
• Members must include at least one person from each
public middle school and public high school in Cupertino, if possible
• Members may attend schools outside of the City limits, or be schooled at home
• Members must be in the 8th through 11th grade at time of appointment
• Members should reflect the broadest possible
representation of Cupertino youth
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City of Cupertino

CODE OF ETHICS AND CONDUCT FOR
FOR

ELECTED AND APPOINTED OFFICIALS
November 7, 2023
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1 PURPOSE
The Cupertino City Council adopts this Code of Ethics and Conduct as guidelines for elected and appointed officials to exercise their office and conduct themselves in a manner that instills public confidence and trust in the fair operation and integrity of Cupertino’s city government.1
In accordance with sState law and Title 2 of the Cupertino Municipal Code, Cupertino’s elected and appointed officials include the members of the City Council, the Mayor, and appointed officers of City boards. committees, and commissions (collectively, “Members”), and the City Manager, the City Attorney, the City Clerk, and the City Treasurer. For purposes of this Ethics Code, City Officials shall also include Department Heads of any department identified in Chapter 2.48 of the Municipal Code.

ETHICS
The citizens and businesses of Cupertino and the general public are entitled to have fair, ethical, and accountable local government. To this end, the public should have full confidence that their elected and appointed officials:
▪ Comply with both the letter and spirit of the law and policies affecting the operations of government and their respective roles and responsibilities; and
▪ Are independent, impartial, and fair in their judgment and actions; and ▪ Use their public office for the public good and not for personal gain; and ▪ Conduct their deliberations and make their decisions in an atmosphere of respect and civility, and during public meetings in accordance with Open Meeting laws, except for confidential proceedings allowed by law.

Therefore, members of the City Council, City Boards and Commissions, the City Clerk, the City Treasurer, the City Manager and the City Attorney, and Department 1 These guidelines are intended to codify memorialize the values of the City of Cupertino relative to the conduct of its elected and appointed officials and in no way do not distract from or supersede the many other rules and laws that govern cityCity officials. By their very nature, some guidelines apply only to legislative bodies and decision-makers as noted in the Code.
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2 Heads (hereinafter, “City Officials”) should shall conduct themselves in accordance with the following ethical standards:

1. Act in the Public Interest. Recognizing that stewardship of the public interest must be their primary concern, City Officials will should work for the common good of the people of Cupertino and not for any private or personal interest, and should they will assure fair and equal treatment of all persons, claims, and transactions coming before them.

2. Comply with both the spirit and the letter of the lLaw and City Policy.

City Officials must shall comply with applicable federal, state, and local laws in the performance of their public duties. These include the United States and California constitutions; the Cupertino Municipal cCode; laws concerning financial disclosures,; sources of income, and gifts; ; conflicts of interest laws;; elections; campaign contributions,; incompatible offices, and; employer responsibilities; and open government rules.

3. Conduct of City Officials. The professional and personal conduct of City Officials while exercising their office must should be above reproach and avoid situations that create the appearance of impropriety. Officials must shall refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of other City Officials, city City staff, or the public.

4. Respect for Process. City Officials will shall perform their duties in accordance with the processes and rules of order established by the City Council, including but not limited to the City Council Procedures Manual and the Commissioner’s Handbook.

5. Conduct at Public Meetings. City Officials will should come prepared to address items and issues at public meetings; will listen courteously and attentively to all public discussions before the body; and will focus on the business at hand.

6. Decisions Based on Merit. City Officials will shall base their decisions on the merits and substance of the matter at hand, rather than on unrelated considerations and the best interests of the City of Cupertino. When making adjudicative decisions that require determination of the facts of a particular case and application of the law and rules, decision-makers will should maintain an open mind until the conclusion of the hearing on the matter and 546
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3 will shall base their decisions on the facts presented at the hearing and the law.

7. CommunicationQuasi-Adjudicative Matters. For adjudicative matters pending before the body, City Officials will shall rely on the agenda materials and information received or presented at the public meeting to support their decision. To the extent substantive or material information regarding an adjudicative matter is received outside of a public meeting, decision- makers mustshall, at a minimum, publicly disclose the circumstances and the outside source of information. Consultation with the City Attorney is strongly advised to ensure the integrity and legality of decisions made on adjudicative matters.

8. Conflicts of Interest. To maintain independence and impartiality for the common good and comply with the extensive set of conflict of interest laws, City Officials will should use exercise caution and use their best efforts to avoid the appearance of impropriety in their actions and decisions.

Consistent with the law, decision-makers City Officials will shall not use their official positions to influence government decisions participate in any governmental decision regarding a matter in which they have (a) a material financial interest, or (b) an organizational responsibility to or personal commitment to others that creates a conflict of interest or the appearance of one, or (c) a strong personal bias as to one party or positionany other interest that materially interferes with the City Official’s ability to make an impartial decision in the best interest of the City. In addition, no City Official shall participate in making any quasi-adjudicatory decision if the City Official has made statements outside of the quasi-adjudicatory hearing that demonstrate an unacceptable probability of bias against a participant in the hearing.

Nothing in this Code shall be interpreted to limit a City Officials’ ability to express their views regarding a matter of public interest, except as necessary to protect due process rights or otherwise ensure fair adjudicative decisionmaking. City Officials shall comply with all applicable California Fair Political Practices Commission (FPPC) regulations requiring the reporting and disclosure of economic interests.

Potential conflicts of interest should be discussed with the City Attorney at the earliest opportunity prior to a public meeting or hearing in order to ensure time to research and analyze the facts. Decision-makers City Officials are referred to the Cupertino Municipal Code, Section 2.18.030, which provides, 547
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4 among other things, that the City Attorney may render informal advice to individual Councilmembers regarding potential conflicts of interest, as appropriate. However, it is understood that Councilmembers are protected from potential liability for a conflict of interest only upon taking action that complies with a written opinion issued by the California Fair Political Practices Commission (FPPC).

If informed to seek formal advice from the FPPC or other State agency, a Mmember will shall not participate in a decision until the FPPC has issued a written opinion that concludes there is no conflict. The Mmember will shall provide the City Attorney a copy of the written request to the FPPC and the opinion, and will conform his or her their participation to the advice given.

If a conflict of interest exists regarding a particular matter or decision, a the member City Official will shall not participate in the decision or discuss the matter with other decision-makers or other persons, unless otherwise permitted by law. In addition, even if an affiliation or relationship with an organization, entity, or individual does not create a conflict of interest with respect to the decision of a legislative body, a Member’s affiliation or relationship with any organization, entity, or individual that would be materially affected by a decision regarding a matter before the legislative body should be disclosed before the Member participates in deliberations regarding the matter. A violation of this Code shall not invalidate a decision of the legislative body, except as otherwise provided by state or federal law.

9. Gifts and Favors. Public City Officials will shall not take advantage of services or opportunities for personal gain, by virtue of their public office, which is are not available to the general public. They should City Officials shall refrain from accepting gifts, favors, or promises of future benefits, which that might compromise their independence of judgment or action or give the appearance of impropriety.

10. Confidential/Privileged Information. Public Officials have a duty to maintain the confidentiality of privileged documents and communications and the legal advice provided to or by them, in accordance with the law. This includes information gathered during a closed session and advice rendered by the City Attorney. Members City Officials will shall not disclose confidential or privileged information without proper legal authorization, nor use such information to advance their personal, financial, or other private interests. 548
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5 11. Use of Public Resources. Public City Officials should shall not use public resources which that are not available to the public in general (e.g., City staff time, equipment, supplies, or facilities) for private gain or for personal purposes not otherwise authorized by law.

12. Representation of Private Interests. In keeping with their role as independent representatives of the City and stewards of the public interest, Councilmembers City Officials should shall not appear on behalf of the private interests of third parties before the Council or any Commission or proceeding of the City, nor should members of Commissions appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies. This section shall not limit a City Official’s ability to represent themself in any City proceeding to the extent permitted by law, nor shall this section limit a City Official’s rights of speech or petition under the United States or California Constitutions.

13. Advocacy. Members should represent the official policies and positions of the City Council and or Commission to the best of their ability when designated as delegates for this purpose. When presenting their individual opinions and positions, members Members should explicitly state they are speaking in their personal capacity and not in their official capacity as members of their respective bodies. When speaking in their personal capacities, members Members should state their views do not represent their bodies’ official positions. Councilmembers and Commissioners Members have the right to endorse candidates for Council seats and other elected offices; however, it is inappropriate Members should not to mention or display endorsements during Council meetings, Commission meetings, or other official City meetings and shall not use public resources for electioneering purposes, unless otherwise allowed by law.

14. Policy Role of Members. Members should shall respect and adhere to the Council-Manager structure of Cupertino City government as outlined in the Cupertino Municipal Code. In this structure, the City Council determines the budget priorities and policies of the City with input provided by City staff and Commissions and the general public. Members should shall not interfere with the administrative functions of the City or the professional duties of City staff; nor should shall they impair the ability of staff to implement 549
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6 Council policy decisions. Neither Commissioners nor other advisory body Members, nor advisory bodies as a whole, shall direct the activities City staff or interfere with the implementation of Council-adopted policies.

15. Independence of Commissions. Because of the value of the independent advice of Commissions to the public decision-making process, members of the City Council should shall refrain from using their position to unduly influence the deliberations or outcomes of Commission proceedings and shall comply with Section 4.6 of the Cupertino City Council Procedures Manual.

16. Positive Work PlaceWorkplace Environment. Public City Officials should support a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City. Members should recognize their special role with City employees and in no way create the perception of inappropriate direction to staff.

CONDUCT GUIDELINES
The Conduct Guidelines are designed to describe the manner in which City Officials should treat one another, City staff, constituents, and others they come into contact with while representing the City of Cupertino.

17. City Officials’ Conduct with Each Other in Public Meetings and Private Encounters
Elected and appointed officials City Officials are individuals with different backgrounds, personalities, values, opinions, and goals, who have chosen to serve in public office to protect the City’s interests and the wellbeing of the community they serve. In all cases, this common goal should guide officials’ City Officials’ conduct with each other and with the public, particularly when individuals may not agree on every issue.
(a) Respect and facilitate the role of the Chair in maintaining order.

It is the responsibility of the Chair of a Council or Commission meeting to keep comments of City Officials keep the discussion germane to the matter before the legislative body, to rule out irrelevant discussion, and to ensure civil discussion among Councilmembers.on track during public meetings. City Officials should recognize and assist the Chair to focus 550
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7 discussion on noticed agenda items. If there is disagreement about the agenda or the Chair’s actions, those objections should be voiced politely and with reason, and where appropriate, acted upon by the legislative body following procedures outlined in parliamentary
procedureRosenberg’s Rules of Order and the Cupertino City Council Procedures Manual.
(b) Practice civility and decorum in discussions and debate.

Difficult questions, challenges, and disagreements with a particular point of view, and criticism of ideas and information are legitimate elements of debate and public discourse of a free democracy in action. Robust discussion and free debate, however, do not justify making belligerent, personal, impertinent, slanderous, threatening, abusive, or disparaging comments.
(c) Work through the Chair to address offensive personal comments.

If a Mmember is personally offended by the remarks of another memberMember, the offended member Member should make notes of the actual words used and call for a "point of personal privilege" that challenges the other member to justify or apologize for the language used. The Chair will shall maintain control of this discussion. (d) Demonstrate effective problem-solving approaches.

City Officials have a public stage and have the responsibility to show how individuals with different points of view can find common ground and seek a compromise that benefits the community as a whole. (e) Continue respectful behavior in private.

The same level of respect and consideration of differing points of view that is appropriate for public discussions should be maintained in private conversations.

2.18. City Officials’ Conduct with the Public in Public Meetings Making the public feel welcome is an important part of the democratic process. No signs of partiality, prejudice, or disrespect should be evident on the part of individual City Officials toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony.
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8 (a) Be welcoming to speakers and treat them with respect.

Members’ primary responsibility during public testimony is to listen.

Welcome all public speakers and encourage their active participation in public meetings by listening to their comments. Avoid engaging public speakers in debate, and call on the Chair whenever a point of order or clarification is required.
(b) Be fair and equitable in allocating public hearing time to individual speakers.

Consistent with legal requirements, the Chair will should determine and announce limits on speakers at the start of a public meeting or hearing process. Time limits for speakers at City Council meetings shall be consistent with the City Council Procedures Manual.
(c) Practice active listening.

It is disconcerting to some speakers to have Mmembers not looking at them when they are speaking. It is fine to look down at documents or to make notes, but reading for a long period of time or gazing around the room may give the appearance of disinterest. Members should try to be conscious of facial expressions, and avoid those that could be interpreted as "smirking," disbelief, anger, or boredom.
(d) Maintain an open mind.

Members of the public deserve an opportunity to influence the thinking of elected and appointed officials.
(e) Ask for clarification, but avoid debate and argument with the public. (e) Only the Chair— – not individual Mmembers – —can
interrupt a speaker during a presentation. However, a member Member can ask the Chair for a point of order if the speaker is off topic, exceeds the time allotted for public comment, or engages in behavior or discussion/language that is disruptive or violates the law. (f) Avoid personal comments that could offend members of the public.

Whether addressing an individual member of the public or the public at large, it is never appropriate to make belligerent, personal, impertinent, slanderous, threatening, abusive, or disparaging comments. 552
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9 3.19. City Officials’ Conduct with the Public in Unofficial Settings (a) Make no promises on behalf of the Council, Commission, or City.

Members will frequently be asked to explain a Council or Commission action or to give their opinion about an issue as they meet and talk with constituents in the community. It is appropriate to give a brief overview of City policy and to refer to City staff for further information. It is not appropriate to Members should not overtly or implicitly promise Council or Commission action, or to promise that City staff will do something specific for the constituent. (b) Make no personal comments about other City Officials.

It is acceptable to publicly disagree about an issue, but it is not acceptable to make derogatory personal comments about other City Officials, their opinions, or actions.

4.20. City Officials’ Conduct with City Staff
Governance of a city relies on the cooperative efforts of elected officials Councilmembers who set policy, appointed officials who advise the elected officials, and City staff who implement and administer the Council’s policies.

Therefore, eEvery effort should be made to be cooperative and show mutual respect for the roles and contributions made by each individual for the good of the community.

The City of Cupertino operates under a Council/Manager form of government as established in Cupertino Municipal Code Chapter 2.28 whereby the City Council, acting through a majority of its members, sets policy, and provides oversight over controls the administrative services of the City only through the City Manager. The Council/Manager form of government is intended to provide the best of unencumbered professional/technical staff input balanced with the collective oversight of elected officials. Under the Council/Manager form of government neither the City Council, nor individual Council members, can give orders to any subordinate of the City Manager. The City Manager takes his or her their orders and instructions from the City Council only when given at a duly held meeting of the City Council. No individual Councilmember can give any orders or instructions to the City Manager. (a) Treat all staff as professionals.
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10 Clear, honest communication that respects the abilities, experience, and dignity of each individual staff members is expected. Poor behavior towards staff is not acceptable.
(b) Do not direct or attempt to influence City Manager or staff priorities outside of a noticed meeting.

Individual Councilmembers and other City Officials shall not direct the City Manager or other City staff or attempt to influence policy or administrative actions or priorities. Policy direction and oversight of administrative activities shall be conducted by a majority of the Council at a duly noticed City Council meeting.
(b)(c) Do not disrupt City staff from their jobs.

City Officials should not disrupt City staff while they are in meetings, on the phone, or otherwise engrossed in performing their job functions in order to have their individual needs met. Do not attend City staff meetings unless requested by staff— – even if the elected or appointed official does not say anything, his or her their presence implies may imply support of a position, shows partiality, may or intimidate staff, and may hampers staff’s ability to do perform their job objectively impartially.
(c)(d) Never publicly criticize an individual employee.

City Officials should not criticize the performance of City employees in public, to the employee directly, or to the employee’s manager (other than the City Manager or City Attorney). Comments about staff performance should only be made to the City Manager or City Attorney through private correspondence or conversation. Appointed officials should make their comments regarding staff to the City Manager.The City Manager is solely responsible for the appointment, discipline, and dismissal of City employees, except for the City Attorney and City Attorney’s Office staff.
(d)(e) Do not get involved in administrative functions.

City Officials acting in their individual capacity must shall not attempt to influence City staff on the making of appointments, awarding of contracts, selecting of consultants, processing of development applications, or granting of City licenses and permits.
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11 (e)(f)Do not solicit political support from staff.

City Officials should not solicit any type of political support (e.g., financial contributions, display of posters or lawn signs, name on support list, etc.) from City staff. City staff may, as private citizens with constitutional rights, support political candidates, but all such activities must be done away from the workplace and outside of work hours. (f)(g)Attorney-Client Relationship.

The In representing the City, the City Attorney provides advice to City staff, to Public Officials, and to Councilmembers and City Officials individually and collectively. In However, in accordance with law and the Rules of Professional Conduct, the City Attorney represents the full City Council and the City as a municipal organization, and any attorneyclient relationship established belongs to the City, acting by and through the full a majority vote of the City Council. To the extent permitted by law, only the City Council as a body and not individual councilmembers Councilmembers can waive the attorney-client privilege.

5.21. Council Conduct with Commissions
The City has established several Commissions as a means of gathering more community input. Citizens who serve on Commissions become more involved in government and serve as advisors to the City Council. They are a valuable resource to the City’s leadership and should be treated with appreciation and respect.
(g)(a) If attending a Commission meeting, be careful to only express personal opinionsAvoid unduly influencing Commission meetings.

Councilmembers may attend any Commission meeting, which are always open to any member of the public. However, it is important for Commissions to be able to make objective recommendations to the City Council on items before them.they should be sensitive to the way their participation could be viewed as unfairly affecting the process. Any public comments by a Councilmember at a Commission meeting should be clearly made as individual opinion and not a
representation of the feelings of the entire City Council To avoid undue influence on Commissioners, Councilmembers shall refrain from commenting during Commission meetings or becoming involved in Commission deliberations.
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12 (h)(b) Limit contact with Commission members Members to questions of clarificationclarifying questions.

Councilmembers should not attempt to influence or publicly criticize Commission recommendations or to influence or lobby individual Commission Members on any item under their consideration.

It is inappropriate for a Councilmember to contact a Commission member to lobby on behalf of an individual, business, or developer, and vice versa. It is acceptable for Councilmembers to contact Commission members Members in order to clarify a position taken by the Commission.
(i)(c) Respect that Commissions serve the community, not individual.

Councilmembers.

The City Council appoints individuals to serve on Commissions, and it is the responsibility of Commissions to follow policy established by the Council. But Commission Mmembers do not report to individual Councilmembers, nor should Councilmembers feel they have the power or right to threaten Commission members with removal if they disagree about an issue. Appointment and re- appointment to a Commission should be based on such criteria as expertise, ability to work with staff and the public, and commitment to fulfilling official duties. A Commission appointment should not be used as a political "reward." (j)(d)Be respectful of diverse opinions.

A primary role of Commissions is to represent many diverse points of view in the community and to provide the Council with advice based on a full spectrum of concerns and perspectives. Councilmembers may have a closer working relationship with some individuals serving on Commissions, but must be fair and respectful of all citizens serving on CommissionsCommissioners.
(k)(e) Keep political support away from public forums.

Commission members Members may offer political support to a Councilmember, but not in a public forum while conducting official duties. Conversely, Councilmembers may support Commission members Members who are running for office, but not in an official a public forum in their capacity as a Councilmemberwhile conducting official duties. 556
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13 6.22. Conduct with the Media
Commission members are not authorized to represent the City to media outlets (including broadcast, print, and social media sites) outside of official Commission meetings unless specifically authorized to do so. (l)(a)The Mayor is the official spokesperson for the City Council on City positions.

The Mayor is the designated representative of the City Council to present and speak on the official City position. If the Mayor is not available, the Mayor may designate the Vice Mayor as the City’s designated representative. If an individual Councilmember is contacted by the media, the Councilmember should be clear about whether their comments represent the official City position or a personal viewpoint. (m)(b)Choose words carefully and cautiously.

Comments taken out of context can cause problems. Be especially cautious about humor, sardonic asides, sarcasm, or word play. It is never appropriate to use personal slurs or swear words when talking with the media.
(c) Media conduct of Commission Members.

Commission mMembers are not authorized to represent the City to media outlets (including broadcast, print, and social media sites) outside of official Commission meetings unless specifically authorized to do so.

COMPLIANCE

23. Acknowledgement of Code of Ethics and Conduct.

City Officials should sign an acknowledgement that they have read and understand the guidelines contained in the Code of Ethics and Conduct.

24. Ethics Training for Local City Officials.

City Officials must comply with sState or City mandated requirements for ethics training, as set forth in Section 5.6 of the City Council Procedures Manual. Ethics training must be completed prior to representing the City on intergovernmental assignments or Council subcommittees. Commissioners who fail to complete required ethics training shall be subject to removal from office by the City Council.
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14 25. Behavior and Conduct.

The Cupertino Code of Ethics and Conduct sets forth guidelines and standards of ethical conduct desired and expected for members of the Cupertino City Council and Commissions and other City Officials. Members City Officials themselves have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the integrity of city City government. The Chairs of Commissions and the Mayor and Council have the additional responsibility to intervene when actions of members that appear to be in violation of the Code of Ethics and Conduct are brought to their attention.The sanctions authorized by this Code are alternatives to any other remedy allowed by law to remedy conduct that violates this Code or state or federal law. Nothing in this Code shall be construed to give rise to a cause of action against the City or any City Official. (a) City Council.:

Individual Councilmembers should point out to the offending Councilmember perceived alleged infractions violations of the Code of Ethics and Conduct. If the offenses continue, then the matter should be referred confidentially to the Mayor City Attorneyin private. Also, should the City Manager or City Attorney believe an investigation into a Councilmember’s conduct is warranted, they may refer the matter to the City Council. If the Mayor is the individual whose actions are being questioned, then the matter should be referred to the Vice Mayor. It is the responsibility of the Mayor (or Vice Mayor) to initiate action if a Councilmember’s behavior is not in compliance with the Code of Ethics and Conduct. If no action is taken by the Mayor (or Vice Mayor)The City Attorney, in consultation with the City Manager, shall determine if the alleged violation(s) are supported by credible evidence and, if so, , then the alleged violation(s) can be brought up with present the alleged violation(s) to the full City Council.
(b) Commissioners and Other Members.:

Commission or Committee Chairs should report apparent violations of this Ethics Code to the Mayor, the City Manager, and/or the City Attorney. Counseling, verbal reprimands, and written warnings may be administered by the Mayor to Commission and other members Members failing to comply with this Code or with City policy. These lower levels of sanctions should be kept private to the degree extent allowed by law. Copies of all written reprimands administered by the 558
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15 Mayor should be distributed in memo format to the Chair of the respective Commission, the Commission Staff Liaison, the City Clerk, the City Attorney, the City Manager, and the City Council.

In accordance with law, the City Council may impose sanctions on Commission members whose conduct does not comply with the City’s policies, up to and including removal from office. Any form of discipline imposed by Council should be determined by a majority vote of at least a quorum of the Council at a noticed public meeting, and such action should be preceded by a Report to Council with supporting documentation.

When deemed warranted, the Mayor or majority of Council may call for an investigation of Commission mMember conduct. Also, should the City Manager or City Attorney believe an investigation into a member’s Member’s conduct is warranted, they may refer the matter to the Mayor or Council. The Mayor or Council should ask the City Manager or the City Attorney to investigate the allegation and report the findings.

These sanctions are alternatives to any other remedy allowed by law to remedy conduct that violates this code or State or Federal law. In order to protect and preserve good government, all members of the City organization should be cognizant of their responsibilities and duties to meet the requirements of the law and uphold the guidelines contained in this Code.
(c) Admonishment, Reprimand, and Censure.

The City Council may admonish, reprimand, or censure any Councilmember or other Member for a violation of the Municipal Code, this Ethics Code, or state or federal law. In addition, the City Council may impose additional sanctions on Commissioners or Other Members whose conduct does not comply with the City’s policies, up to and including removal from office.

Prior to the imposition of a penalty of reprimand, censure, or removal from office, the Member shall be provided advanced notice of the allegations against them and an opportunity to respond the allegations.

Any form of discipline imposed by Council should be determined by a majority vote of at least a quorum of the Council at a noticed public 559
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16 meeting, and such action should be preceded by a report to Council.

IMPLEMENTATION
The Code of Ethics and Conduct is intended to be self-enforcing and is an expression of the standards of conduct for City Officials expected by the City. It therefore becomes most effective when City Officials are thoroughly familiar with it and embrace its provisions.

For this reason, this document should be included in the regular orientations for candidates for City Council, City Manager, City Attorney, applicants to Commissions, and other newly elected and appointed City Officials. Members City Officials entering office should sign a statement (example below) acknowledging they have read and understand the Code of Ethics and Conduct. In addition, the Code of Ethics and Conduct should be periodically reviewed by the City Council and updated it as necessary.

I affirm that I have read and understand the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials.

Signature Date
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RESOLUTION NO. 23-______

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

ADOPTING THE CITY OF CUPERTINO CODE OF ETHICS AND CONDUCT

FOR ELECTED AND APPOINTED OFFICIALS
WHEREAS, the City Council of the City of Cupertino has determined that a Code of Ethics and Conduct benefits the public by increasing public confidence in the integrity of local government and its effective and fair operations; and WHEREAS, the Cupertino Code of Ethics and Conduct will guide the conduct of City Officials and support their independent, impartial, and fair decision-making and execution of policy; and
WHEREAS, City Council wishes to maintain an atmosphere of respect and civility in the performance of City affairs and public business.

NOW, THEREFORE, BE IT RESOLVED that:

1. The City Council of the City of Cupertino hereby adopts the attached "City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials;" and

2. Resolution No. 20-011 is hereby repealed and rescinded.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7
th day of November, 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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City of Cupertino

CODE OF ETHICS AND CONDUCT FOR
FOR

ELECTED AND APPOINTED OFFICIALS
November 7, 2023
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1 PURPOSE
The Cupertino City Council adopts this Code of Ethics and Conduct as guidelines for elected and appointed officials to exercise their office and conduct themselves in a manner that instills public confidence and trust in the fair operation and integrity of Cupertino’s city government.1
In accordance with state law and Title 2 of the Cupertino Municipal Code, Cupertino’s elected and appointed officials include the members of the City Council, the Mayor, and appointed officers of City boards. committees, and commissions (collectively, “Members”), and the City Manager, the City Attorney, the City Clerk, and the City Treasurer. For purposes of this Ethics Code, City Officials shall also include Department Heads of any department identified in Chapter 2.48 of the Municipal Code.

ETHICS
The citizens and businesses of Cupertino and the general public are entitled to have fair, ethical, and accountable local government. To this end, the public should have full confidence that their elected and appointed officials:
▪ Comply with both the letter and spirit of the law and policies affecting the operations of government and their respective roles and responsibilities; and
▪ Are independent, impartial, and fair in their judgment and actions; and ▪ Use their public office for the public good and not for personal gain; and ▪ Conduct their deliberations and make their decisions in an atmosphere of respect and civility, and during public meetings in accordance with Open Meeting laws, except for confidential proceedings allowed by law.

Therefore, members of the City Council, City Boards and Commissions, the City Clerk, the City Treasurer, the City Manager and the City Attorney, and Department Heads (hereinafter, “City Officials”) shall conduct themselves in accordance with the following ethical standards:
1 These guidelines are intended to memorialize the values of the City of Cupertino relative to the conduct of its elected and appointed officials and do not supersede other rules and laws that govern City officials.
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2 1. Act in the Public Interest. Recognizing that stewardship of the public interest must be their primary concern, City Officials should work for the common good of the people of Cupertino and not for any private or personal interest, and should assure fair and equal treatment of all persons, claims, and transactions coming before them.

2. Comply with both the spirit and the letter of the law and City Policy. City Officials shall comply with applicable federal, state, and local laws in the performance of their public duties. These include the United States and California constitutions; the Cupertino Municipal Code; laws concerning financial disclosures, sources of income, and gifts; conflicts of interest laws; elections; campaign contributions, incompatible offices, and employer responsibilities; and open government rules.

3. Conduct of City Officials. The professional and personal conduct of City Officials while exercising their office should be above reproach and avoid situations that create the appearance of impropriety. Officials shall refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of other City Officials, City staff, or the public.

4. Respect for Process. City Officials shall perform their duties in accordance with the processes and rules of order established by the City Council, including but not limited to the City Council Procedures Manual and the Commissioner’s Handbook.

5. Conduct at Public Meetings. City Officials should come prepared to address items and issues at public meetings; listen courteously and attentively to all public discussions before the body; and focus on the business at hand.

6. Decisions Based on Merit. City Officials shall base their decisions on the merits and substance of the matter at hand and the best interests of the City of Cupertino. When making adjudicative decisions that require determination of the facts of a particular case and application of the law and rules, decisionmakers should maintain an open mind until the conclusion of the hearing on the matter and shall base their decisions on the facts presented at the hearing and the law.
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3 7. Quasi-Adjudicative Matters. For adjudicative matters pending before the body, City Officials shall rely on the agenda materials and information received or presented at the public meeting to support their decision. To the extent substantive or material information regarding an adjudicative matter is received outside of a public meeting, decision- makers shall publicly disclose the circumstances and the outside source of information. Consultation with the City Attorney is strongly advised to ensure the integrity and legality of decisions made on adjudicative matters.

8. Conflicts of Interest. City Officials should exercise caution and use their best efforts to avoid the appearance of impropriety in their actions and decisions. City Officials shall not participate in any governmental decision regarding a matter in which they have (a) a material financial interest, or (b) any other interest that materially interferes with the City Official’s ability to make an impartial decision in the best interest of the City. In addition, no City Official shall participate in making any quasi-adjudicatory decision if the City Official has made statements outside of the quasi-adjudicatory hearing that demonstrate an unacceptable probability of bias against a participant in the hearing. Nothing in this Code shall be interpreted to limit a City Officials’ ability to express their views regarding a matter of public interest, except as necessary to protect due process rights or otherwise ensure fair adjudicative decision-making. City Officials shall comply with all applicable California Fair Political Practices Commission (FPPC) regulations requiring the reporting and disclosure of economic interests.

Potential conflicts of interest should be discussed with the City Attorney at the earliest opportunity prior to a public meeting or hearing in order to ensure time to research and analyze the facts. City Officials are referred to the Cupertino Municipal Code, Section 2.18.030, which provides, among other things, that the City Attorney may render informal advice to individual Councilmembers regarding potential conflicts of interest, as appropriate.

However, Councilmembers are protected from potential liability for a conflict of interest only upon taking action that complies with a written opinion issued by the FPPC.

If informed to seek formal advice from the FPPC , a Member shall not participate in a decision until the FPPC has issued a written opinion that concludes there is no conflict. The Member shall provide the City Attorney a copy of the written request to the FPPC and the opinion, and will conform 566
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4 their participation to the advice given.

If a conflict of interest exists regarding a particular matter or decision, a City Official shall not participate in the decision or discuss the matter with other decision-makers, unless otherwise permitted by law. In addition, even if an affiliation or relationship with an organization, entity, or individual does not create a conflict of interest with respect to the decision of a legislative body, a Member’s affiliation or relationship with any organization, entity, or individual that would be materially affected by a decision regarding a matter before the legislative body should be disclosed before the Member participates in deliberations regarding the matter. A violation of this Code shall not invalidate a decision of the legislative body, except as otherwise provided by state or federal law.

9. Gifts and Favors. City Officials shall not take advantage of services or opportunities for personal gain, by virtue of their public office, which are not available to the general public. City Officials shall refrain from accepting gifts, favors, or promises of future benefits that might compromise their independence of judgment or action or give the appearance of impropriety.

10. Confidential/Privileged Information. Public Officials have a duty to maintain the confidentiality of privileged documents and communications and the legal advice provided to or by them, in accordance with the law. This includes information gathered during a closed session and advice rendered by the City Attorney. City Officials shall not disclose confidential or privileged information without proper legal authorization, nor use such information to advance their personal, financial, or other private interests.

11. Use of Public Resources. City Officials shall not use public resources that are not available to the public in general (e.g., City staff time, equipment, supplies, or facilities) for private gain or for personal purposes not authorized by law.

12. Representation of Private Interests. In keeping with their role as independent representatives of the City and stewards of the public interest, City Officials shall not appear on behalf of the private interests of third parties before the Council or any Commission or proceeding of the City, nor should members of Commissions appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of 567
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5 service of their bodies. This section shall not limit a City Official’s ability to represent themself in any City proceeding to the extent permitted by law, nor shall this section limit a City Official’s rights of speech or petition under the United States or California Constitutions.

13. Advocacy. Members should represent the official policies and positions of the City Council or Commission to the best of their ability when designated as delegates for this purpose. When presenting their individual opinions and positions, Members should explicitly state they are speaking in their personal capacity and not in their official capacity as members of their respective bodies. When speaking in their personal capacities, Members should state their views do not represent their bodies’ official positions. Members have the right to endorse candidates for Council seats and other elected offices; however, Members should not mention or display endorsements during Council meetings, Commission meetings, or other official City meetings and shall not use public resources for electioneering purposes.

14. Policy Role of Members. Members shall respect and adhere to the CouncilManager structure of Cupertino City government as outlined in the Cupertino Municipal Code. In this structure, the City Council determines the budget priorities and policies of the City with input provided by City staff and Commissions and the general public. Members 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. Neither Commissioners nor other advisory body Members, nor advisory bodies as a whole, shall direct the activities City staff or interfere with the implementation of Council-adopted policies.

15. Independence of Commissions. Because of the value of the independent advice of Commissions to the public decision-making process, members of the City Council shall refrain from using their position to unduly influence the deliberations or outcomes of Commission proceedings and shall comply with Section 4.6 of the Cupertino City Council Procedures Manual.

16. Positive Workplace Environment. City Officials should support a positive and constructive workplace environment for City employees and for citizens and businesses dealing with the City. Members should recognize their special role with City employees and in no way create the perception of inappropriate direction to staff.
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6 CONDUCT GUIDELINES
The Conduct Guidelines are designed to describe the manner in which City Officials should treat one another, City staff, constituents, and others they come into contact with while representing the City of Cupertino.

17. City Officials’ Conduct with Each Other in Public Meetings and Private Encounters
City Officials are individuals with different backgrounds, personalities, values, opinions, and goals who have chosen to serve in public office to protect the City’s interests and the wellbeing of the community they serve. In all cases, this common goal should guide City Officials’ conduct with each other and with the public, particularly when individuals may not agree on every issue.
(a) Respect and facilitate the role of the Chair in maintaining order.

It is the responsibility of the Chair of a Council or Commission meeting to keep the discussion germane to the matter before the legislative body, to rule out irrelevant discussion, and to ensure civil discussion among Councilmembers. City Officials should recognize and assist the Chair to focus discussion on noticed agenda items. If there is disagreement about the agenda or the Chair’s actions, those objections should be voiced politely and with reason, and where appropriate, acted upon by the legislative body following procedures outlined in Rosenberg’s Rules of Order and the Cupertino City Council Procedures Manual. (b) Practice civility and decorum in discussions and debate.

Difficult questions, challenges, and disagreements with a particular point of view, and criticism of ideas and information are legitimate elements of debate and public discourse of a free democracy in action. Robust discussion and free debate, however, do not justify making belligerent, personal, impertinent, slanderous, threatening, abusive, or disparaging comments.
(c) Work through the Chair to address offensive personal comments.

If a Member is personally offended by the remarks of another Member, the offended Member should make notes of the actual words used and call for a "point of personal privilege" that challenges the other member 569
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7 to justify or apologize for the language used. The Chair shall maintain control of this discussion.
(d) Demonstrate effective problem-solving approaches.

City Officials have a public stage and have the responsibility to show how individuals with different points of view can find common ground and seek a compromise that benefits the community as a whole. (e) Continue respectful behavior in private.

The same level of respect and consideration of differing points of view that is appropriate for public discussions should be maintained in private conversations.

18. City Officials’ Conduct with the Public in Public Meetings Making the public feel welcome is an important part of the democratic process. No signs of partiality, prejudice, or disrespect should be evident on the part of individual City Officials toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony.
(a) Be welcoming to speakers and treat them with respect.

Members’ primary responsibility during public testimony is to listen.

Welcome all public speakers and encourage their active participation in public meetings by listening to their comments. Avoid engaging public speakers in debate, and call on the Chair whenever a point of order or clarification is required.
(b) Be fair and equitable in allocating public hearing time to individual speakers.

Consistent with legal requirements, the Chair should determine and announce limits on speakers at the start of a public meeting or hearing process. Time limits for speakers at City Council meetings shall be consistent with the City Council Procedures Manual.
(c) Practice active listening.

It is disconcerting to some speakers to have Members not looking at them when they are speaking. It is fine to look down at documents or to make notes, but reading for a long period of time or gazing around the room may give the appearance of disinterest. Members should try to be 570
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8 conscious of facial expressions, and avoid those that could be interpreted as "smirking," disbelief, anger, or boredom.
(d) Maintain an open mind.

Members of the public deserve an opportunity to influence the thinking of elected and appointed officials.
(e) Ask for clarification, but avoid debate and argument with the public.

Only the Chair—not individual Members—can interrupt a speaker during a presentation. However, a Member can ask the Chair for a point of order if the speaker is off topic, exceeds the time allotted for public comment, or engages in behavior or discussion/language that is disruptive or violates the law.
(f) Avoid personal comments that could offend members of the public.

Whether addressing an individual member of the public or the public at large, it is never appropriate to make belligerent, personal, impertinent, slanderous, threatening, abusive, or disparaging comments.

19. City Officials’ Conduct with the Public in Unofficial Settings (a) Make no promises on behalf of the Council, Commission, or City.

Members will frequently be asked to explain a Council or Commission action or to give their opinion about an issue as they meet and talk with constituents in the community. It is appropriate to give a brief overview of City policy and to refer to City staff for further information. Members should not overtly or implicitly promise Council or Commission action or promise that City staff will do something specific for the constituent.
(b) Make no personal comments about other City Officials.

It is acceptable to publicly disagree about an issue, but it is not acceptable to make derogatory personal comments about other City Officials.

20. City Officials’ Conduct with City Staff
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9 to be cooperative and show mutual respect for the roles and contributions made by each individual for the good of the community.

The City of Cupertino operates under a Council/Manager form of government as established in Cupertino Municipal Code Chapter 2.28 whereby the City Council, acting through a majority of its members, sets policy, and provides oversight over the administrative services of the City only through the City Manager. The Council/Manager form of government is intended to provide the best of unencumbered professional/technical staff input balanced with the collective oversight of elected officials. Under the Council/Manager form of government neither the City Council, nor individual Councilmembers, can give orders to any subordinate of the City Manager. The City Manager takes their orders and instructions from the City Council only when given at a duly held meeting of the City Council. No individual Councilmember can give any orders or instructions to the City Manager.
(a) Treat all staff as professionals.

Clear, honest communication that respects the abilities, experience, and dignity of individual staff members is expected. Poor behavior towards staff is not acceptable.
(b) Do not direct or attempt to influence City Manager or staff priorities outside of a noticed meeting.

Individual Councilmembers and other City Officials shall not direct the City Manager or other City staff or attempt to influence policy or administrative actions or priorities. Policy direction and oversight of administrative activities shall be conducted by a majority of the Council at a duly noticed City Council meeting.
(c) Do not disrupt City staff from their jobs.

City Officials should not disrupt City staff while they are in meetings, on the phone, or otherwise performing their job functions in order to have their individual needs met. Do not attend City staff meetings unless requested by staff—even if the elected or appointed official does not say anything, their presence may imply support of a position, show partiality, or intimidate staff, and may hampers staff’s ability to perform their job impartially.
(d) Never publicly criticize an individual employee.
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10 City Officials should not criticize the performance of City employees in public, to the employee directly, or to the employee’s manager (other than the City Manager or City Attorney). Comments about staff performance should only be made to the City Manager or City Attorney through private correspondence or conversation. The City Manager is solely responsible for the appointment, discipline, and dismissal of City employees, except for the City Attorney and City Attorney’s Office staff. (e) Do not get involved in administrative functions.

City Officials acting in their individual capacity shall not attempt to influence City staff on the making of appointments, awarding of contracts, selecting of consultants, processing of development applications, or granting of City licenses and permits.
(f) Do not solicit political support from staff.

City Officials should not solicit any type of political support (e.g., financial contributions, display of posters or lawn signs, name on support list) from City staff. City staff may, as private citizens with constitutional rights, support political candidates, but all such activities must be done away from the workplace and outside of work hours. (g) Attorney-Client Relationship.

In representing the City, the City Attorney provides advice to City staff and City Officials. However, in accordance with law and the Rules of Professional Conduct, the City Attorney represents the City as a municipal organization, and any attorney-client relationship established belongs to the City, acting by and through a majority vote of the City Council. To the extent permitted by law, only the City Council as a body and not individual Councilmembers can waive the attorney-client privilege.

21. Council Conduct with Commissions
The City has established several Commissions as a means of gathering more community input. Citizens who serve on Commissions become more involved in government and serve as advisors to the City Council. They are a valuable resource to the City’s leadership and should be treated with appreciation and respect.
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11 (a) Avoid unduly influencing Commission meetings.

Councilmembers may attend any Commission meeting, which are always open to any member of the public. However, it is important for Commissions to be able to make objective recommendations to the City Council on items before them. To avoid undue influence on Commissioners, Councilmembers shall refrain from commenting during Commission meetings or becoming involved in Commission deliberations.
(b) Limit contact with Commission Members to clarifying questions.

Councilmembers should not attempt to influence or publicly criticize Commission recommendations or to influence or lobby individual Commission Members on any item under their consideration.

It is acceptable for Councilmembers to contact Commission Members in order to clarify a position taken by the Commission.
(c) Respect that Commissions serve the community, not individual.

Councilmembers.

The City Council appoints individuals to serve on Commissions, and it is the responsibility of Commissions to follow policy established by the Council. Commission Members do not report to individual Councilmembers. Appointment and reappointment to a Commission should be based on such criteria as expertise, ability to work with staff and the public, and commitment to fulfilling official duties. (d) Be respectful of diverse opinions.

A primary role of Commissions is to represent diverse points of view in the community and to provide the Council with advice based on a full spectrum of concerns and perspectives. Councilmembers may have a closer working relationship with some individuals serving on Commissions, but must be fair and respectful of all Commissioners. (e) Keep political support away from public forums.

Commission Members may offer political support to a
Councilmember, but not in a public forum while conducting official duties. Conversely, Councilmembers may support Commission Members who are running for office, but not in a public forum while conducting official duties.
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12 22. Conduct with the Media
(a) The Mayor is the official spokesperson for the City Council on City positions.

The Mayor is the designated representative of the City Council to present and speak on the official City position. If the Mayor is not available, the Mayor may designate the Vice Mayor as the City’s designated representative. If an individual Councilmember is contacted by the media, the Councilmember should be clear about whether their comments represent the official City position or a personal viewpoint. (b) Choose words carefully and cautiously.

Comments taken out of context can cause problems. Be especially cautious about humor, sardonic asides, sarcasm, or word play. It is never appropriate to use personal slurs or swear words when talking with the media.
(c) Media conduct of Commission Members.

Commission Members are not authorized to represent the City to media outlets (including broadcast, print, and social media sites) outside of official Commission meetings unless specifically authorized to do so.

COMPLIANCE

23. Acknowledgement of Code of Ethics and Conduct.

City Officials should sign an acknowledgement that they have read and understand the guidelines contained in the Code of Ethics and Conduct.

24. Ethics Training for City Officials.

City Officials must comply with state or City mandated requirements for ethics training, as set forth in Section 5.6 of the City Council Procedures Manual.

Ethics training must be completed prior to representing the City on intergovernmental assignments or Council subcommittees. Commissioners who fail to complete required ethics training shall be subject to removal from office by the City Council.

25. Behavior and Conduct.

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13 have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the integrity of City government. The sanctions authorized by this Code are alternatives to any other remedy allowed by law to remedy conduct that violates this Code or state or federal law. Nothing in this Code shall be construed to give rise to a cause of action against the City or any City Official.
(a) City Council.

Individual Councilmembers should point out to the offending Councilmember alleged violations of the Code of Ethics and Conduct. If the offenses continue, then the matter should be referred confidentially to the City Attorney. Also, should the City Manager or City Attorney believe an investigation into a Councilmember’s conduct is warranted, they may refer the matter to the City Council. The City Attorney, in consultation with the City Manager, shall determine if the alleged violation(s) are supported by credible evidence and, if so, present the alleged violation(s) to the full City Council.
(b) Commissioners and Other Members.

Commission or Committee Chairs should report apparent violations of this Ethics Code to the Mayor, the City Manager, and/or the City Attorney. Counseling, verbal reprimands, and written warnings may be administered by the Mayor to Commission and other Members failing to comply with this Code or with City policy. These lower levels of sanctions should be kept private to the extent allowed by law.

When deemed warranted, the Mayor or majority of Council may call for an investigation of Member conduct. Also, should the City Manager or City Attorney believe an investigation into a Member’s conduct is warranted, they may refer the matter to the Mayor or Council. The Mayor or Council should ask the City Manager or the City Attorney to investigate the allegation and report the findings.
(c) Admonishment, Reprimand, and Censure.

The City Council may admonish, reprimand, or censure any Councilmember or other Member for a violation of the Municipal Code, this Ethics Code, or state or federal law. In addition, the City Council may impose additional sanctions on Commissioners or Other Members whose conduct does not comply with the City’s policies, up to and including 576
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14 removal from office.

Prior to the imposition of a penalty of reprimand, censure, or removal from office, the Member shall be provided advanced notice of the allegations against them and an opportunity to respond the allegations.

Any form of discipline imposed by Council should be determined by a majority vote of at least a quorum of the Council at a noticed public meeting, and such action should be preceded by a report to Council.

IMPLEMENTATION
The Code of Ethics and Conduct is intended to be self-enforcing and is an expression of the standards of conduct for City Officials expected by the City. It therefore becomes most effective when City Officials are thoroughly familiar with it and embrace its provisions.

For this reason, this document should be included in the regular orientations for candidates for City Council, City Manager, City Attorney, applicants to Commissions, and other newly elected and appointed City Officials. City Officials entering office should sign a statement (example below) acknowledging they have read and understand the Code of Ethics and Conduct. In addition, the Code of Ethics and Conduct should be periodically reviewed by the City Council and updated as necessary.

I affirm that I have read and understand the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials.

Signature Date
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CITY OF CUPERTINO
Agenda Item
23-12579 Agenda Date: 11/7/2023
Agenda #: 14.

Subject: To Be Determined list (“TBD List”) of agenda items requested by City Councilmembers Review the TBD List and modify the list as recommended below Presenter: Pamela Wu, City Manager
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1 CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Consider list of agenda items requested by City Councilmembers (“TBD List”).

Recommended Action
Review the TBD list and modify the list as recommended below.

Reasons for Recommendation
The City Manager has maintained a list of items identified for future City Council agendas as requested by Councilmembers. On June 21, 2023, staff provided the City Council with a list of 12 TBD items for Council consideration. Council accepted the staff recommendation for eight items and agendized two items in July and one item in December. The current list reflects items that have been added by two councilmembers since the last update on June 21, 2023. As required per the Council’s adopted Procedures Manual, the City Manager shall provide a quarterly report to Council regarding the status of future agenda items, which may include a request to remove items from the list of items. Any item may be removed by a majority vote of the City Council. The most current TBD list with status recommendations is as follows:
#
When TBD Item
was added by
whom
Subject Recommendation
3 Moore and Chao
added 9/5/23
Vallco Park development update regarding
soil contamination, the modifications since
the original approval, when the project
expires if there is no construction, whether
the applicant is allowed to submit further
modifications beyond those requested
already, and a site plan of the changes they
have recently requested.

Staff anticipates an
informational update to
Council in spring 2024
on this matter.
4 Moore and Chao
added 9/29/23
Review of Bingo and Hidden Treasure event
programs
Staff anticipates
bringing this to Council
in March 2024.
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2 5 Moore and Chao
added 7/18/23
Golf course fees increase Staff will provide an
informational update
on this matter in Spring
2024
6 Moore and Chao
added 3/23/23
Expanding noticing requirement from 300-ft
to 500-ft. Qualification for 500-ft noticing
requirement was not specified.

On June 21, Council
decided to bring this
back in December. Due
to budget constraints
and staff limitations,
staff recommends
removing this item
from the TBD list.
7 Moore and Chao
added 10/10/23
Clarifying which commission is providing
zoom meeting function and whether it’s part
of the City Work Program
This item is addressed
in an informational
memo as part of the
November 7, 2023
Council agenda.
8 Moore and Chao
added 4/10/23
Update from Cupertino Sanitary District This item is addressed in an informational
memo as part of the
November 7, 2023
Council agenda.
9 Moore and Wei
added 7/18/23
Nexus study for traffic impact fees Staff anticipates
bringing this to Council
in in the fourth quarter
of calendar year 2024.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Astrid Robles, Senior Management Analyst
Reviewed by: Tina Kapoor, Deputy City Manager
Matt Morley, Assistant City Manager
Chris Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
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CITY OF CUPERTINO
Agenda Item
23-12291 Agenda Date: 11/7/2023
Agenda #: 15.

Subject: Councilmember Reports
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1 CITY COUNCIL ACTIVITY REPORT
Meeting: Tuesday, November 7, 2023
Reporting Councilmember: Councilmember J.R. Fruen
Report Activity Dates: 10/10/23 to 10/31/23
Event Date, Title, and Description:

Event 1. October 11, 2023 – Blackberry Farm Briefing – I received a background briefing from staff on the proposed options for Blackberry Farm Golf Course. The item was heard at the October 17, 2023, city council meeting.

Event 2. October 11, 2023 – Housing Element Briefing – I received a background briefing from staff regarding progress on the Housing Element, sites added to the inventory, policies proposed for inclusion, and expected timelines on environmental review and community engagement.

Event 3. October 12, 2023 – VTA Policy Advisory Committee Meeting – I attended this meeting in my capacity as Cupertino’s representative to the Committee. The meeting consisted almost exclusively of informational items. Those interested in climate change-related transportation policy will find the agenda packet especially interesting as VTA kicks off an update to its Climate Action and Adaptation Plan.

Event 4. October 14, 2023 – Diwali Festival – Together with other local elected officials, I attended the annual Diwali Festival hosted by the Cupertino Chamber of Commerce at Memorial Park. The event was well-attended and drew festival-goers from around the South Bay.

Event 5. October 15, 2023 – Bathukamma Festival – I joined Mayor Wei and Vice-Mayor Mohan at the Telangana Cultural Association’s annual Bathukamma Festival (the “Festival of Flowers”). Historically, this event has been held in Cupertino for this Cupertino-based organization. This year’s event was held at Ponderosa Elementary School in Sunnyvale. 582
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2 Event 6. October 19, 2023 – Cupertino Public Safety Forum – This year’s forum featured the various public agencies, city departments, and volunteer organizations that work to keep Cupertino safe. This year’s forum focused especially on cybersecurity risks and featured presentations from local students on cybersecurity awareness and from the Fire District on text access to 911.

Event 7. October 19, 2023 – Cupertino Historical Society Fundraiser – Together with numerous local officials and members of the Historical Society, I attended this regular fundraiser to benefit the Historical Society hosted in tandem with the Chamber of Commerce at the Cupertino Hotel.

Event 8. October 20, 2023 – City of Cupertino – CUSD Strategic Partnership Meeting – Historically, the City of Cupertino and the Cupertino Union School District have held two-bytwo meetings to coordinate strategically on issues of common interest. This was the first such meeting in well over a year. I attended in my capacity as the council-appointed representative to this committee. City Manager Wu and I shared about the city’s budget focus and Housing Element opportunities. CUSD Trustees Liu and Madhathil together with Superintendent Yao shared their historical perspective on these meetings and noted the District’s ongoing analysis of certain of their District-owned sites. Of particular note were the disused Montebello school site inherited by the District upon the dissolution of the Montebello School District, and the Finch Avenue parcel located at the edge of Sedgwick Elementary School. The parties took the opportunity to discuss the conditional use permit process for the Tessellations School presently leasing Regnart Elementary, and the District’s move of its primary office from leased space at Mary Avenue to Meyerholz Elementary School in neighboring San Jose, Council District 1.

Event 9. October 25, 2023 – Santa Clara Valley Water Commission – I attended this meeting in my capacity as Cupertino’s representative on the Water Commission. The meeting featured helpful updates on several of the Water District’s initiatives, including rebate programs available for residents and businesses. The Commission also chose a new Vice-Chair. On my nomination and motion, the Commission unanimously elected San Jose Councilmember Domingo Candelas, who has a unique depth of knowledge on water policy from previous positions working for the Water District and in the office of former state Senator Jim Beall, who now sits on the Water Board.

Event 10. October 27, 2023 – Grand Opening of the Roy Rocklin Science Center – At the invitation of the Fremont Union High School District, I attended the grand opening and dedication of the Roy Rocklin Science Center on the campus of Lynbrook High School. Trustee Rocklin was previously a science teacher at Lynbrook before taking retirement and serving on the governing board of trustees of the District. Staff, officials, and members of Trustee Rocklin’s 583
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3 spoke movingly of his contributions to the school and the district. The new building features a number of state-of-the art science lab facilities that will aid student learning from now into the future. As a Lynbrook alum, this was an especially meaningful event.

Event 11. October 28, 2023 – Greeting for Cupertino-Hsinchu Sister City Association student delegation – Together with Mayor Wei and Councilmember Moore, I attended a greeting reception for this year’s student delegation from Hsinchu, Taiwan. The students remain in Cupertino and its environs for the duration of the week. Homestead High School is this year’s host high school.

Event 12. October 28, 2023 – Asian Pacific American Leadership Institute Public Officials Fall Lunch Forum – At the invitation of Dr. Michael Chang, I attended this annual lunch forum to discuss issues facing South Bay elected and appointed officials. The discussion focused primarily on basic needs issues, especially the challenge of unsheltered homelessness.

Event 13. October 31, 2023 – Cupertino-Hsinchu Sister City Association Delegation Tour and Lunch – At the invitation of the CHSCA, I attended a reception and tour for officials from Hsinchu and the sister city association. This event included a ceremonial receipt of art gifts produced by Hsinchu students to the Library and was followed by a lunch reception at Golden Palace Chinese Restaurant on South De Anza Boulevard.

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1 CITY COUNCIL ACTIVITY REPORT
Meeting:  Tuesday, November 7, 2023
Reporting Councilmember:  Vice Mayor Sheila Mohan
Report Activity Dates:  10/10/23  to 10/30/23
Event Date, Title, and Description:
10/11/23:   As a member of the  Santa Clara County Library District JPA, I  attended the library finance committee meeting.  Donations received from the various Friends the Library groups were noted and accepted.  The library staff presented the Fiscal Year 2022‐23 year‐end fiscal report and pointed out that while the JPA had significant reserves, there was uncertainty pertaining to ERAF funding in view of budget shortfalls projected at the State level. 10/1123: In my capacity as member of the Silicon Valley Clean Energy Board,  I attended the monthly directors meeting, and acknowledged the Showcase Award recipient from Cupertino.
10/12/23: I attended a prep session presented by Planning Department staff on Blackberry Farm Golf Course.  Staff provided a history of previous council actions, community input, results of the public survey and the current status of the golf course. 10/14/23: Enjoyed attending the 20th annual Diwali Festival at Memorial Festival – a fun‐ filled community event with artists, community non‐profits and city vendors participating.

Several elected officials attended, including US Rep Ro Khanna, councilmembers from neighboring cities, and school board members.  Congratulations to the Chamber of Commerce for hosting yet another successful community event.
10/15/23: Spoke to children of 5th grade Cub Scouts and den leaders about the role of City Council members in the life of a City.  The boys and girls showed curiosity and enthusiasm and provided great ideas to help school kids, such as heated public swimming pools! 585
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2 10/15/23: I attended the annual Walk‐Bike End of Summer Barbecue – a relaxed evening among walking and biking enthusiasts.
10/19/23: Attended the Public Safety Forum at the Quinlan Center where local and regional public safety officials made presentations on local  crime, disaster preparedness, volunteer opportunities and cybersecurity issues.
10/19/23: Attended the Fall Jazz Fundraiser for the Cupertino Historical Museum at the Cupertino Hotel.
10/22/23: Celebrated the California Acupuncture Day and, on behalf of the city, presented a proclamation that recognized the date when acupuncture was legalized in California, and the significance of acupuncture as an important element of an integrated healthcare approach. 10/23/23: Attended a prep session presented by City Staff on the Housing Element. 10/23/23: Attended the Audit Committee meeting at which several informational items were presented: OPEB and Pension Section 115 Trust Performance Report; Treasurer’s Investment Report for the quarter ended September 30,2023; the Internal Audit and Fraud, Waste and Abuse program update; Budget format review; and the Audit Committee 2024 schedule and work plan.
10/26/23: Attended the Santa Clara County Library District (SCCLD) JPA Board Meeting where the year‐end service report was presented and discussed.  Among the highlights:

SCCLD is ranked #2 in the nation for libraries in its specific category. 10/28/23: Attended the Asian Pacific American Leadership Institute (APALI) Fall Lunch Forum, hosted by Michael Chang and attended by local and regional elected officials.  The challenge that homelessness presents was discussed from various perspectives. 586
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1 CITY COUNCIL ACTIVITY REPORT
Meeting: Tuesday, November 7, 2023
Reporting Councilmember: Councilmember Kitty Moore
Report Activity Dates: 10/10/23 to 10/30/23
Event Date, Title, and Description:

October 10, 2023. Attended ‘Lunch and Learn’ ILG Webinar on “Navigating Workplace Investigations.”
October 10, 2023. City Council Meeting.

October 11, 2023. Blackberry Farm informational session with Staff.

October 11, 2023. Attended Los Altos’ Senior seminar lunch “Your Kidneys and Your Health.”
October 14, 2023. Attended 20th Annual Diwali Festival at Memorial Park sponsored by the Chamber of Commerce with support from the City of Cupertino.

October 15, 2023. Ongoing Environmental Studies program class: Environmental Resource Management and Pollution Prevention. Week topic: Environmental Law and Regulation: Pollution and Hazardous Materials. 7th course in the program, self-funded.

October 15, 2023. Submitted CM and CA evaluations.

October 19, 2023. Attended the Public Safety Forum
October 19, 2023. Attended the Cupertino Historical Society/Cupertino Chamber of 587
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City Council Report of Activities Councilmember Moore

Commerce 50’s Jazz Fundraiser at the Cupertino Hotel.

October 22, 2023. Dropped by to look at the Stevens Creek Boulevard 54” CMP replacement project. Got to see the new RCP being cut at a compound angle and lowered into place, learned they expected to complete ahead of schedule and under budget, which they did.

October 22, 2023. Ongoing Environmental Studies program class: Environmental Resource Management and Pollution Prevention. Week topic: Environmental Law and Regulation: Natural Resources and Land Use. 7th course in the program, self-funded.

October 25, 2023. City Council Special Meeting closed session.

October 26, 2023. Stopped by the Cupertino Senior Center and volunteer “Hidden Treasures” event sale to shop!
October 28, 2023. Attended the Cupertino Hotel location welcoming the Hsinchu Sister City student delegation at the start of their visit!
October 29, 2023. Ongoing Environmental Studies program class: Environmental Resource Management and Pollution Prevention. Week topic: Environmental Health and Environmental Justice and Land Use. 7th course in the program, self-funded.

October 30, 2023. City Council Special Meeting closed session. 588
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1 CITY COUNCIL ACTIVITY REPORT
Meeting: Tuesday, November 7, 2023
Reporting Councilmember: Mayor Hung Wei
Report Activity Dates: 10/12/23 to 10/31/23
Event Date, Title, and Description:

Event 1. Thursday October 12, 2023 @ 8am, Review Blackberry Farm Golf Course with Staff

Zoom meeting with City staff to review Blackberry Farm Golf Course Presentation, asked questions and received staff feedback.

Event 2. Thursday October 12, 2023 @ 7:00pm, Cities Association of Santa Clara County (CASCC) Board of Directors Meeting
Cities Association of Santa Clara County Board of Directors met at Mountain View City Hall to discuss the following topics: Nominating Committee announced its recommendations for the 2024 CASCC Executive Board of Directors and asked for nominations; 2023 Holiday Party was planned on Thursday December 14, 2023 with discussion of nominations for the Champion of the Year Award and Legislator of the Year Award recipients; Joint Power Agreement update; and Santa Clara County City Managers Association representative update. The following guest speakers made presentations: David Driskell from Community Planning Collaborative, Uday Kapoor from National Alliance on Mental Illness, Santa Clara County, and Abha Singhvi from Maitri, a non=profit on domestic violence.

Event 3. Friday October 13, 2023 @ 8:00am, Silicon Valley Leadership Group Retreat @ Synopsys in Sunnyvale
Silicon Valley Leadership Group hosted its very 1st Retreat with industry expert speakers covering various topics on Artificial Intelligence, Innovation, Economic Trend, and Financial Outlook. This Retreat also offered networking opportunities 589
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2 among industry/finance experts and elected officials to exchange ideas, innovation strategies, and priorities setting.

Event 4. Saturday October 14, 2023 @10am, 13th International Kid’s Fun Festival @ the Culture Center of Taipei Economic & Culture Office
Attended the 13th International Kid’s Fun Festival and presented a Certificate of Appreciation to the Taiwanese Cultural & Sports Association for its promotion of cultural understanding through music, dance, and exhibits. This year’s participants included song/dance performances and exhibitions from countries including Azerbajian, Columbia, Denmark, India, Japan, Taiwan (Republic of China), Turkey, U.S., and Uzbekistan.

Event 5. Saturday October 14, 2023 @3:00pm, Diwali Festival at Memorial Park hosted by the Cupertino Chamber of Commerce
Attended the 20th Silicon Valley Diwali Festival of Lights with Vice Mayor Mohan, Councilmembers Chao, Fruen, and Moore. Attendees enjoyed various performances and shopped at booths with a variety of merchandise.

Event 6. Saturday October 14, 2023 @ 6:00pm, Indian Community Center Banquet Gala at the Indian Community Center in Milpitas
Attended the 20th Anniversary Gala of the Indian Community Center along with Mayors/Councilmembers from Fremont, Milpitas, and Santa Clara.

Event 7. Sunday October 15, 2023 @ 4:30pm, Bathukamma event hosted by the Telangana Cultural Association @ Ponderosa Elementary in Sunnyvale Attended the 20th Annual Bathukamma, the Festival of Flowers, celebrated by the Telangana Cultural Association – an occasion of beauty, love, and life.

Event 8. Monday October 16, 2023 @ 5:30pm, meeting with members of the Cupertino Sports Center @ the Sports Center
Met with members of the Cupertino Sports to listen to input on the City Hall/Sports Center issues.
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3 Event 9. Wednesday October 18, 2023 @ 4:00pm, Safe Route to Schools Bike Rodeo event @ Sedgwick Elementary in Cupertino
Volunteered at the Bike Rodeo at Sedgwick Elementary hosted by Cupertino City’s Safe Route to Schools staff. It was a pleasure to meet former Councilmember Jon Willey there with his children.

Event 10. Thursday October 19, 2023 @ 4:30pm, Public Safety Forum @ Cupertino Quinlan Center
Attended and spoke at the Public Safety Forum hosted by Cupertino’s Office of Emergency Management and the Public Safety Commission. Vice Mayor Mohan and Councilmembers Fruen and Moore were also present. The Public Safety Forum served as an opportunity for the community to engage in conversations with various public safety agencies to gain knowledge and understanding of a safe and strong Cupertino.

Event 11. Thursday October 19, 2023 @ 6:45pm, Cupertino Historical Society and Museum’s Business Social Fundraiser @ Cupertino Hotel
Attended the Business Social Fundraiser hosted by the Cupertino Historical Society and Museum at Cupertino Hotel. Vice Mayor Mohan and Councilmembers Fruen and Moore were also present. I spoke briefly thanking the efforts of the Historical Society for preserving and presenting Cupertino’s unique history, and presented a Certificate of Appreciation to former Mayor Rod Sinks (current FUHSD Board Member) recognizing his contributions to the community in areas of clean energy, scouting, walking/biking, and more.

Event 12. Wednesday October 25, 2023 @noon, West Valley Cities Mayors and City Managers Monthly Meeting
Attended the monthly Mayors and City Mangers Meeting with West Valley Cities (Campbell, Cupertino, Los Gatos, Monte Sereno, Saratoga). Discussion topics included potential West Valley collaboration for the unhoused, public safety concerns, and decided on the next meeting on November 29, 2023 with “Garbage, Waste, and Recycling” as the main topic.

Event 13. Friday October 27, 2023 @ 3:30pm Lynbrook Science Building Grand Opening and Ribbon Cutting in honor of Roy Rocklin, Lynbrook Teacher and 591
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4 Fremont Union High School District Board Member
Attended the Grand Opening of the Rocklin Science Center at Lynbrook High School in memory and honor of Roy Rocklin, a 10-year teacher at Lynbrook High School, Board Member of the FUHSD Board of Trustees, and a community volunteer.

Event 14. Saturday October 28, 2023 @ 10:30am Asian Pacific American Leadership Institute (APALI) Pubic Officials Luncheon
Attended APALI’s Fall Public Officials Luncheon with Keynote Speaker Michelle Lew, CEO of Health Trust, shared each agency’s work on supporting the unhoused.

Event 15. Sunday October 29, 2023 @ 2:45pm Diwali Festival hosted by the Silicon Valley Central Chamber of Commerce
Attended the Opening Ceremony of Silicon Valley Central Chamber of Commerce’s Diwali Festival with Sunnyvale Mayor Larry Kline, Santa Clara Vice Mayor Kevin Park, Milpitas Councilmember Hon Lien, Santa Clara Union School District Board Member Andrew Ratermann in celebration of light over dark, good over evil, and knowledge over ignorance.

Event 16. Monday October 30, 2023 @ 11am @ the Forum, Update on Cupertino Current Issues
The Forum in Cupertino invited Cupertino City for a current issues update with Forum residents. Captain Neil Valenzuela, City Manager Pamela Wu, Cupertino City Emergency Service Director Tom Chin, and I attended the Forum’s event with updates and Q&A.

Event 17. Tuesday October 31, 2023 @noon, Cupertino-Hsinchu Sister Cities Association (CHSCA) Appreciation Luncheon
Attended CHSCA’s Appreciation with Cupertino Union School District (CUSD) and Fremont Union High School District (FUHSD) Board members and staff, along with the three chaperons for the exchange students from Hsinchu who are visiting CUSD and FUHSD schools.
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CITY OF CUPERTINO
Agenda Item
23-12699 Agenda Date: 11/7/2023
Agenda #: 16.

Subject: Stevens Creek Boulevard/Calabazas Creek Storm Drain Repair Emergency Work status report
Receive the Stevens Creek Boulevard/Calabazas Creek Storm Drain Repair Emergency Work status report
CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL INFORMATIONAL MEMORANDUM
Meeting: November 7, 2023
To: Cupertino City Council
From: Chad Mosley, Director of Public Works
Re: Stevens Creek Boulevard/Calabazas Creek Storm Drain Repair Emergency Work status report.

Background
On October 10, the City Council approved a Resolution declaring an emergency action to streamline the repairs for the Stevens Creek Boulevard/Calabazas Creek Storm Drain project.

This project was necessitated by a deteriorated storm drain pipe underneath the roadway on Stevens Creek Boulevard. The failed pipe led to undermining of the roadway surface to an emergency level. The emergency repairs avoided what would have been an imminent sinkhole that could have caused additional damage to the street and vehicles travelling along the roadway.

Through collaborative and innovative efforts by Public Works staff, the contractor, and engineers, this emergency work was completed two weeks ahead of the projected completion date. The duration of road closure was reduced from the initially anticipated 30 days to 16 days, minimizing impacts to the public and businesses.

The work was completed at a cost lower than the approved emergency budget of $880,000, resulting in reduced expenditures of approximately $100,000. The failed metal pipe was removed and replaced with a reinforced concrete pipe, which has an anticipated useful life of 100 years.

An emergency declaration requires the City Council to approve the continued emergency status at each meeting for the time that the emergency condition exists. The emergency was addressed, and no further emergency declarations are required by City Council. This informational report will serve as the final project report to Council.

Sustainability Impact
Maintaining the storm drain system allows for proper storm drain run-off management. 594
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Fiscal Impact
The close-out of the project will result in approximately $100,000 being returned to the Capital Project fund. Those funds will remain unassigned until Council appropriates them for another use.
_____________________________________
Prepared by: Suyesh Shrestha, Project Manager
Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments: None
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CITY OF CUPERTINO
Agenda Item
23-12232 Agenda Date: 11/7/2023
Agenda #: 17.

Subject: Update on activities of the Cupertino Sanitary District Receive the update on activities of the Cupertino Sanitary District CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL INFORMATIONAL MEMORANDUM
Meeting: November 7, 2023
To: Cupertino City Council
From: Matt Morley, Assistant City Manager
Re: Cupertino Sanitary District Update
The Cupertino Sanitary District is an independent district that is governed by an elected Board of Directors. The District provides sanitary sewer services throughout Cupertino and portions of neighboring jurisdictions and works closely with the City on various projects that the District is responsible for performing, including development projects, capital improvements, and maintenance. The District sets its own policy direction.

Much of the information provided in this report is available on the District’s webpage:
https://www.cupertinosanitarydistrict.org/home
Wolfe Road Sewer Relocation Project
In preparation for the replacement of the Wolfe Road overpass, the District is relocating the sanitary sewer line that crosses Caltrans right of way at that location. This project is underway and the District anticipates completion in late 2023. Traffic will be impacted as lanes are closed during the course of construction.

Infiltration and Inflow Reduction
The District reports that “45-50 percent of peak flows in the sewer system during wet weather flow” originates from the infiltration of stormwater or groundwater into the system. This results in stormwater mixing with and being treated as sewage as opposed to flowing directly into the creek or stormwater system. The District has implemented a program to reduce the occurrence of this infiltration. The program includes finding and fixing sources of infiltration and modeling peak flows to identify the impact of infiltration on system capacity. By managing infiltration and inflow, the District can make more capacity available for development projects.
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Ordinance 130 – Property Line Cleanouts
In March, the District Board approved Ordinance 130 governing the placement and maintenance of sanitary sewer line cleanouts. The ordinance is intended to provide the District greater access to service the sanitary line. The ordinance includes an increased cost share with property owners when new cleanouts are required.

Sewer Service Rates
In May of this year, the District Board set rates for sanitary sewer service, including a 5% residential rate increase. The base rate for a single-family connection is $734.56 per year.

The District sets rates through a public hearing and publishes the rates on their website.

These charges for service are billed and collected on the property tax bill for each property.

System Capacity and Anticipated Upgrades
The District has historically had concerns with system capacity, with physical limitations on the flow capacity constrained by system size as it flows through the City of Santa Clara. Through past hydrology analysis, capacity concerns arose during wet weather conditions largely due to infiltration issues. Infiltration occurs where stormwater enters the sanitary sewer system, an undesirable condition in any case. Stormwater should stay in its own separate system. The District has seen increases in flow during wet weather, which points directly to stormwater infiltration. As a result, the District has invested purposefully in infiltration testing and reduction strategies.

Most recently, the District re-evaluated the hydrological model assumptions and made changes that more accurately reflect existing conditions. The calculations from these changes demonstrated a system with less capacity constraints, leaving the District in a place where it can accommodate foreseeable new development.

Other system upgrades have been focused on renewal and resiliency of aging infrastructure, including sewer lines and pump stations. As pump stations are modernized, the District will include opportunities to provide permanent back up power where it does not currently exist and will upgrade digital monitoring and control systems to allow for more responsive and reliable operations. These upgraded pump stations are also expected to reduce episodic odor issues.

Sustainability Impact
There is no sustainability impact resulting from the recommended action in this report.

Fiscal Impact
There is no fiscal impact from the recommended actions in this report.

California Environmental Quality Act (CEQA)
Not applicable.
_____________________________________
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Prepared by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
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CITY OF CUPERTINO
Agenda Item
23-12583 Agenda Date: 11/7/2023
Agenda #: 18.

Subject: Update and Status regarding Lehigh Cement Plant and Quarry Receive the update and status regarding Lehigh Cement Plant and Quarry CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL INFORMATIONAL MEMORANDUM
Meeting: November 7, 2023
To: Cupertino City Council
From: Pamela Wu, City Manager
Re: Update and Status regarding Lehigh Cement Plant and Quarry Background:

In November 2022, Lehigh Southwest Cement Company (and parent company Heidelberg Materials) announced the permanent shut down of cement kiln operations at its Permanente facility.

Although the City is not a permitting authority for the mine activities, it is a stakeholder given the adjacency and the fact that several parcels lie within the City or the City’s sphere of influence. The City of Cupertino staff has been working closely with the other stakeholders regarding progress for the legally binding agreement with the closure of the Lehigh Cement Plant. These stakeholders include the County Supervisor Joe Simitian's Office, County’s Department of Planning and Development, County Counsel’s Office, MidPeninsula Regional Open Space, and Heidelberg Materials.

Anticipating the permanent closure of the clinker kiln, Lehigh representatives agreed in principle to entering into a legally binding agreement with the County that outlined the negotiated specific terms of such matter.

With the permanent closure of the cement kiln, an updated Reclamation Plan was developed by Lehigh to accommodate the long-term use of the facility. The 2023 Reclamation Plan was submitted to the County for review in June 2023. The County is currently reviewing the submitted Reclamation Plan Amendment which is a comprehensive update and replacement to the 2012 Reclamation Plan.

CITY MANAGER’S OFFICE

CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FAX (408) 777-3366
WWW.CUPERTINO.ORG
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Next Steps
A Policy Framework Agreement for Reclamation and Development of Lehigh Quarry Property was approved and adopted by City Council in June 2023 between the County of Santa Clara and the City of Cupertino to set forth joint planning principles to guide efforts when considering restoration and potential future development of the Lehigh Property to ensure any future development benefits the surrounding community and maximizes environmental and natural resource conservation.

Lehigh has also engaged a team of architects, planners, engineers and specialists to conduct a high-level analysis to understand the basic characteristics and topography of the site to help consider future development plans for Heidelberg Materials.

The intent of this information memo is to provide Council and members of the public current status of Lehigh Cement Plant and Quarry anticipating a study session in March 2024 to discuss City’s vision for the subject property. Staff has been working proactively to set forth a policy framework to consider the restoration and potential future development of the Lehigh Property including the following factors:
• Potential land use designation should Lehigh Cement Plan and Quarry properties be annexed into Cupertino proper and correlation with other adjoining property owners, ie. County of Santa Clara and Midpeninsula Regional Open Space Authority.
• Length and duration of the anticipated operation closure by Heidelberg Materials.
• Potential impacts to the Cupertino community resulting from reclamation, restoration, and environmental remediation of the Lehigh Property. • Future infrastructure needs of the Lehigh Property including water, sewer, storm, roads, and etc.

Heidelberg Materials has committed a strong partnership with the community and the City of Cupertino to work collaboratively exploring options for the future redevelopment.

Staff plans to schedule a study session to update the status of the progress of the Lehigh redevelopment plans to Cupertino City Council in March 2024.

Sustainability Impact:

None
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Fiscal Impact:

Staff time involved to facilitate the development of a General Plan for future uses of the Lehigh property are accounted for with the Department of Community Development budget. There are no fiscal impacts to the General Fund. _____________________________________

Prepared by: Albert Salvador, Special Project Executive Reviewed by: Matt Morley, Assistant City Manager
Christopher D. Jensen, City Attorney

Approved for Submission by: Pamela Wu, City Manager

Attachments:

None
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CITY OF CUPERTINO
Agenda Item
23-12725 Agenda Date: 11/7/2023
Agenda #: 19.

Subject: Information regarding hybrid options for commission meetings Receive the information regarding hybrid options for commission meetings CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL INFORMATIONAL MEMORANDUM
Meeting: February 21, 2023
To: Cupertino City Council
From: Pamela Wu, City Manager
Re: Information regarding hybrid options for commission meetings.

Background
As part of the FY 2022-2023 City Work Program, adopted May 17, 2022, Council directed staff to research if hybrid meetings should be continued for City Council, Commission meetings, and community workshops. Subsequently to the FY22-23 City Work Program adoption, the City Council, commissioners, and other members of City legislative bodies that are subject to the Brown Act were informed that authorization for remote meetings under AB 361 expired on February 28, 2023. With the Governor’s State of Emergency declaration expired, members of legislative bodies are required to attend meetings in person or comply with the narrow exceptions authorized under state law. This information and the list of exceptions can be found in Attachment A (Memo Re Brown Act Teleconference Amendments).

To comply with the changes to state law and the Brown Act, all City Council and commission meetings subject to the Brown Act returned to in-person meetings. As requirements changed, the City continued to provide hybrid options for certain commissions until July 2023. Due to low attendance on zoom and the high cost of staff time to facilitate a hybrid option, the use of televised, hybrid meetings was discontinued, including zoom meeting recordings for all commissions, except for the Planning Commission. Thus, the City Work Program item aiming to continue allowing zoom meeting for City’s decision-making bodies concluded and has since then been removed from the current City Work Program.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.
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California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Astrid Robles, Senior Management Analyst
Reviewed by: Tina Kapoor, Deputy City Manager
Matt Morley, Assistant City Manager
Chris Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A - Memo Re Brown Act Teleconference Amendments
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OFFICE OF THE CITY ATTORNEY
10300 TORRE AVENUE • CUPERTINO, CA 95014
TELEPHONE: (408) 777-3403 • FAX: (408) 777-3401
TO: Pamela Wu, City Manager
Kirsten Squarcia, City Clerk
FROM: Chris Jensen, City Attorney
DATE: March 22, 2023
SUBJECT: Brown Act Changes and Remote Meeting Requirements The City Council, commissioners, and other members of City legislative bodies subject to the Brown Act have been informed that authorization for remote meetings under AB 361 expired on February 28, 2023, when the Governor’s declared State of Emergency expired.

Members of legislative bodies must now attend meetings in person or comply with the narrow exceptions authorized under state law. The Brown Act does not limit remote participation by members of the public or City staff. Exceptions that allow for remote participation by legislative body members are outlined below.

1. Brown Act “Classic” Teleconference Rules
The Brown Act continues to allow members of local legislative bodies to participate remotely in public meetings consistent with its teleconference requirements.

Government Code section 54953 authorizes members to participate at remote locations during teleconferenced meetings so long as the legislative body: (1) posts meeting agendas at all teleconference locations; (2) identifies all teleconference locations in the notice and agenda; and (3) makes each teleconference location accessible to the public. A quorum of the legislative body must be present in person.

2. AB 2449 – New Limited Remote Participation Exception AB 2449 allows an individual member, under specific limited circumstances, to participate in a Brown Act meeting remotely without identifying their remote 607
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Brown Act Changes and Remote Meeting Requirements
March 22, 2023