T-2522/1977382
TO:
HONORABLE MAYOR AND
CITY COUNCIL
FROM:
NORA FRIMANN,
City Attorney
SUBJECT:
Civil Service Commission
Appointments; Thomas
Cochran and Sharon Hightower,
Applicants
DATE:
November 17, 2022
BACKGROUND
This Office routinely reviews applic ations for appointment to City boards and commissions. The applications generally do not provide complete information; however, they do occasionally disclose potential conflicts of interest or incompatible offices. The purpose of this memorandum is to hi ghlight major areas of known potential conflicts that are disclosed by the applications.
COMMISSION DUTIES
Established by the City Charter and authorized by the Municipal Code and Policy 0-4, the Civil Service Commission acts as an appellate body for certai n personnel decisions affecting City employees an d applicants for City employment. The Commission also makes recommendations to the Council and the City Manager and may conduct investigations concerning the administration of personnel in the Classified S ervice, reviews and recommends changes to Civil Service Rules, and appoints members of the City Council Salary Setting Commission.
COMMISSION COMPOSITION
The Civil Service Commission consists of five members. City Charter section 1001(a) requires that one member must be an attorney who has practiced l aw in the State of California for at least five years and that the Civil Service Commission may not have more than four members of the same sex. 1 In addition, City Charter Section 1001(b) requires that one memb er must be nominated by full-time officers and em ployees,
1 On November 8, 2022, voters considered Measure I which would remove gender specific requirements in appointment. The Santa Clara County Registrar of Voter’s unofficial results show this measure as passing.
Honorable Mayor and City Council
Civil Service Commission Applicants
November 17, 2022
T-2522\1977382
excluding members of the Council and Commissions. Council poli cy also states that a Commissioner may not be a present , former, or retired City employee. [ Policy 0- 4, §I(B)(1), (3).]
Of the five members, two have expired terms and the employee nominated position is vacant, although there is an active recruitment . One of the expired terms is that of the attorney-at-law position. The remaining Commission includes one male and femal e member, so the current appointments can be made without regard to gender.
San Jose Munic ipal Code section 2.08.150(a) provides that the Charter controls the term for the Charter commissions. For the Civil Service Commission, the Charter provides that the term of off ice is four y ears, but it i s sil ent on term limits. [Ch arter, §1001(b).] Thus, unlike other non-Charter Commissions, here, Commissioners may be reappointed for more than two terms.
LEGAL CONFLICTS THAT MAY PRECLUDE VOTE OR PARTICIPATION Certain positions may preclude a commi ssioner from participating in a commission discussion or from voting if a matter involving the entity comes before the commission.
While this list is not complete, these types of conflicts generally fall within one or more of the following situations:
• A n application s hows entities that are “sour ces of income” to a potential commissioner within the 12 months preceding the start of the commission term, as defined under the Political Reform Act.
• An application shows sources of income to a Spouse or Domestic Partner of a potential commissioner within the 12 months preceding the start of the commission term.
• An applicant or the Spouse or Domestic Partner of an applicant is an Officer or Board Member of an entity and it is foreseeable that the entity could be involved in a matter coming before the commission.
APPEARANCE OF BIAS
There may be facts which would not amount to a legal conflict of interest requiring a commissioner to recuse themselves from a commission vote or discussi on, but the relationship could create an appearance of bi as on the part of the com missioner. City Council policy requires commissions to be free from bias in their decision making and Honorable Mayor and City Council
Civil Service Commission Applicants
November 17, 2022
T-2522\1977382
may require a commissioner to recuse themselves if the facts could reasonably lead someone to believe they are biased for or against an applicant or appellant.
APPLICANTS TO BE INTERVIEWED
Thomas C ochran – Mr. Cochran applies for reappointment to the Civil Service Commission. The application indicates he is a Vice President and Financial Advisor for the Bank of the West. The application does not list a spouse and does not disclose any current or past City employment. H e previously served eight years on the City’s Salary Setting Commission , but this volunteer work does not dis qualify his application. Mr.
Cochran’s a pplication disclose s neither incompati ble offices nor apparent confli cts of interest.
Sharon Hightower, A ttorney at Law Position - Ms. Hightower applies for reappointment to the Civil Service Commission. Her application indicates she is a senior attorney/partner at Erickson Arbuthnot in San Jose wit h a focus on employment issues. She has been licensed by the California State Bar since 1987 and is eligible for either the attorney or non-attorney position. She currently fills the attorney position. Ms.
Hightower also serves as a judge pro tempore of the Santa Clara County Superior Court for traffic and small claims court and as a court -appointed mediator. If reappointed to the Commission, Ms. Hightower and her firm would continue to be prohibited from representing any City employee in proceedings before the Civil Service Commission.
Ms. Hightower’s application discloses neither incompatible offices nor apparent conflicts of interest.
CONCLUSION
The applicants do not appear to hold any incompatible office n or have any apparent conflicts that would prevent them from serving on the Civil Service Commission. The Council may w ish to consider the above comments in making i ts appointments to the Commission.
NORA FRIMANN,
City Attorney
By: __________________________
Colleen D. Winchester
Senior Deputy City Attorney