The September 15 Council agenda is particularly important in this respect because it combines routine administrative matters with several decisions involving substantial expenditures, long-term contractual authority, homelessness policy, development incentives, land use, accessibility, and environmental impacts.
A.1 — Review of the September 15, 2026 City Council Agenda The September 15 agenda contains a number of matters that deserve careful Council and public consideration. I encourage the Committee not to evaluate the agenda solely according to whether each item technically qualifies for placement, but also according to whether the placement and scheduling give Councilmembers and the public a realistic opportunity to understand the consequences of the decisions being requested.
This is especially relevant because the evening session has been cancelled. The agenda identifies a 9:30 a.m. closed session, a 1:30 p.m. regular session, and states that the previously scheduled 6:00 p.m. evening session is cancelled. Given the significance of several afternoon items, the Committee should consider whether the absence of an evening session creates an unnecessary participation barrier for residents who work during the day.
I recognize that not every Council meeting requires an evening session. However, accessibility in open government involves more than technically providing a public comment opportunity. It should include reasonable consideration of when members of the public can realistically participate.
I therefore suggest that the Committee consider assigning appropriate time-certains to major items and examine whether particularly consequential matters should be scheduled so that residents are not required to wait through a lengthy afternoon agenda simply to determine when their item will be heard.
Consent Calendar — Greater Attention to High-Impact Items I generally support the efficient use of a consent calendar. Routine approvals should not unnecessarily consume Council time. At the same time, the designation "consent" should not become synonymous with "unimportant."
Several September 15 consent items deserve particular attention.
Item 2.7 — Conflict of Interest Code Biennial Update
The biennial update appears administratively appropriate. However, conflict-of-interest rules are fundamental to public confidence, and any substantive changes in disclosure categories, designated positions, or reporting obligations should be clearly identified rather than requiring members of the public to compare documents line by line. The agenda asks Council to adopt a resolution amending the City's Conflict of Interest Code.
Where such changes are substantive, I encourage the City to provide a concise change summary explaining who is being added or removed and why.
Item 2.8 — San Diego Treatment Diversion Study Mission
The proposed October 21–22 study mission includes Mayor Mahan, members of the Mayor's staff, Councilmember Tordillos, and Councilmember Cohen, with Councilmember Cohen being excused from 9/8/26, 2:18 PM Mail - Rules and Open Government Committee Agendas - Outlook https://outlook.cloud.microsoft/mail/[email protected]/inbox/id/AAQkADhhYzk3NTk1LTBmZDAtNDc4Yi1hN2Q0LTZjNmZjNTk5M… 2/9 the October 21 Rules and Open Government Committee meeting.
Treatment diversion is sufficiently important to justify learning from other jurisdictions. My concern is therefore not with the trip itself but with measurable follow through. I recommend that participants provide a short written public report after returning that identifies what San Diego is doing, what appears applicable to San José, what does not appear applicable, and whether any policy or budget recommendation will result from the trip.
Study missions are most valuable when institutional knowledge is preserved rather than remaining primarily with the people who attended.
Item 2.9 — Wastewater Facility Construction Contingency This item deserves particular fiscal scrutiny. Council is being asked to increase the construction contingency for the Yard Piping Improvements Phase 3 project from 10% to 18%, increasing the contingency by $1.54 million, from $1.949 million to $3.489 million.
That does not necessarily indicate mismanagement; infrastructure projects routinely encounter unforeseen conditions. But an increase of this magnitude should be accompanied by a plainly understandable explanation of what conditions consumed the original contingency, whether additional change orders are anticipated, and whether the revised 18% contingency is expected to be sufficient to complete the project.
Council should also know whether the underlying circumstances could have been reasonably anticipated during design. That question is important not to assign blame after the fact but to improve cost estimating on future infrastructure projects.
Items 2.10, 2.11 and 2.12 — Long-Term Technology Contracts These three items collectively raise an important governance issue.
Item 2.10 would permit five additional one year extensions of the Granicus web content management agreement through June 30, 2032. Item 2.11 would authorize additional hardware, software and services under the Securitas automated access control agreement and provide two additional extension options through 2029. Item 2.12 would permit five additional one year extensions of the Tolemi redevelopment impact assessment purchase order through approximately May 2032.
I am not suggesting that any of these vendors are performing inadequately. My concern is structural:
repeated option-year extensions can gradually turn a competitively procured contract into a very long vendor relationship.
Before exercising successive extensions, the City should periodically document whether pricing remains competitive, whether performance benchmarks have been met, whether newer alternatives have emerged, and whether switching costs have created excessive vendor dependence.
For Granicus in particular, because the City's website is a primary interface between residents and government, evaluation should include accessibility, mobile performance, multilingual access, publicrecord discoverability, search quality, and ease of navigation — not simply system uptime.
For Securitas, cybersecurity and physical security should also be considered together. Authority to add or remove hardware, software and services through future amendments should contain sufficient financial and policy guardrails so Council can retain meaningful oversight. 9/8/26, 2:18 PM Mail - Rules and Open Government Committee Agendas - Outlook https://outlook.cloud.microsoft/mail/[email protected]/inbox/id/AAQkADhhYzk3NTk1LTBmZDAtNDc4Yi1hN2Q0LTZjNmZjNTk5M… 3/9 Item 2.13 — Fourth Quarter Financial Reports
Council is being asked to accept year end reports covering Debt Management, Investment Management, Revenue Management, and Purchasing and Risk Management.
These reports are an important opportunity for fiscal oversight. I encourage Council to focus not only on whether the City complied with policy but on trends: debt exposure, investment performance and liquidity, revenue variance from projections, purchasing performance, claims exposure, and emerging financial risks.
A concise public dashboard showing major year over year changes would make these highly technical reports considerably more useful to residents.
Item 2.14 — West Valley Sanitation District Agreement
This agreement would run retroactively from July 1, 2026 through June 30, 2046 — a twenty year period — for construction, operation and maintenance of joint use sanitary sewers.
A long-term infrastructure agreement may be entirely reasonable, but Council should be satisfied that the cost-allocation formula, maintenance responsibilities, dispute-resolution mechanisms, future capital costs and termination provisions protect San José over the full term. I also suggest that staff explain why retroactive approval is necessary whenever an agreement is presented after its effective date.
Major September 15 Discussion Items
Item 3.3 — Temporary Moratorium on Detention and Custodial Facilities The proposed 45-day moratorium is a consequential policy decision and appropriately requires nine affirmative Council votes. The agenda also contains substantial exclusions for juvenile treatment, court-ordered treatment, correctional ancillary services, licensed residential care, school disciplinary facilities, public-health quarantine and facilities used to execute punitive sentences.
Regardless of one's position on private detention facilities, a temporary moratorium can be a legitimate planning mechanism when used to give a city time to develop permanent land use rules.
The important question is what happens during those 45 days.
Council should require a clear work plan: what legal and land-use questions will be examined, what community engagement will occur, what permanent regulatory options will return to Council, and when they will return. Otherwise, a temporary moratorium risks merely postponing the underlying policy question.
Item 3.5 — Functional Zero and Unsheltered Homelessness This deserves substantial attention. Council is being asked both to accept an updated functional-zero model and to amend the FY 2026–27 Reducing Unsheltered Homelessness Work Plan. "Functional zero" should be accompanied by metrics that residents can understand. The City should distinguish clearly between reductions in unsheltered homelessness, placements into interim shelter, exits into permanent housing, returns to homelessness, and individuals who simply move outside a particular count or service system.
9/8/26, 2:18 PM Mail - Rules and Open Government Committee Agendas - Outlook https://outlook.cloud.microsoft/mail/[email protected]/inbox/id/AAQkADhhYzk3NTk1LTBmZDAtNDc4Yi1hN2Q0LTZjNmZjNTk5M… 4/9 A metric can be technically accurate while still giving the public an incomplete picture. The objective should be durable housing stability rather than movement between categories.
This is particularly relevant in light of the Public Record comments discussed below concerning interim shelter conditions and pathways out of shelter.
Item 5.1 — Downtown Parking Rates
This matter is shown as deferred to September 29. The proposal would extend downtown meter operations to 9:00 p.m. Monday through Saturday and establish a $4 per hour rate for meters within two blocks of a City garage.
The deferral creates an opportunity to provide clearer analysis of effects on downtown restaurants, small businesses, employees, lower-income visitors and evening activity. The City should explain the behavioral objective: is the policy designed primarily to increase revenue, encourage turnover, shift drivers into garages, reduce vehicle trips, or some combination? Success should then be measured against that objective.
Item 8.1 — $6.93 Million Housing Tax and Fee Waiver
Council is being asked to consider up to $6,934,618 in tax and fee relief for Phase 1 of the residential project at 3896 Stevens Creek Boulevard.
I support increasing housing production, but incentives of this magnitude should come with measurable public benefits and transparency. Council should be able to answer: Would the project proceed without the waiver? How many units will actually result? What affordability, construction timing or performance requirements attach to the incentive? What happens if construction is delayed or the project changes materially?
Economic-development incentives are strongest when the City can demonstrate a causal relationship between the public subsidy and a public benefit.
Item 10.1(a) — Reasonable Accommodation
I strongly support the direction of this item. The proposal simplifies the reasonable-accommodation process and reduces the application fee from $10,439 to $796.
A $10,439 fee for requesting a zoning related reasonable accommodation is extraordinarily difficult to reconcile with meaningful accessibility for many residents with disabilities. The proposed reduction is substantial and welcome.
I encourage Council to go one step further and examine whether even the $796 base fee should be subject to a hardship waiver or reduction when necessary to ensure that a person's financial circumstances do not effectively prevent access to a disability accommodation.
Item 10.1(b) — 5651 Cottle Road
This project combines commercial modifications, alcohol sales, a daycare/preschool and playground, circulation changes, stormwater changes, and removal of 23 trees.
I would particularly encourage Council to ensure that the relationship between alcohol sales, vehicle circulation, and the daycare use has been carefully reviewed and that the removal of 23 trees is 9/8/26, 2:18 PM Mail - Rules and Open Government Committee Agendas - Outlook https://outlook.cloud.microsoft/mail/[email protected]/inbox/id/AAQkADhhYzk3NTk1LTBmZDAtNDc4Yi1hN2Q0LTZjNmZjNTk5M… 5/9 accompanied by an appropriate replacement and canopy plan.
Item 10.2 — Glider Residential Project
This is one of the most consequential land-use matters on the agenda. The proposal includes 80 single-family homes, demolition of the former Glider Elementary School buildings, removal of 48 trees, a privately owned publicly accessible park, density-bonus concessions and waivers, and extended Saturday construction hours. It also requires certification of an Environmental Impact Report and a Statement of Overriding Considerations.
I encourage the Committee to ensure that sufficient hearing time is available for this item. A Statement of Overriding Considerations means the Council is being asked to accept identified significant environmental effects based on other project benefits. That decision warrants transparent explanation.
Council should also examine tree replacement, construction impacts on surrounding residents, longterm maintenance and enforceable public access to the privately owned park, and the practical consequences of the requested development-standard waivers.
B.1 — Public Record, August 27–September 3
The Public Record contains four distinct community submissions: opposition concerning the Missing Middle proposal; concerns regarding data centers and water; a Green Party submission concerning data center regulation; and a REAL Coalition submission regarding interim shelter conditions and services.
I do not necessarily agree with every assertion contained in these letters, but they raise questions worthy of substantive consideration rather than simply being received and filed.
The data center submissions raise concerns regarding water, electricity, onsite generation, noise, heat, transparency and infrastructure. One submission specifically calls for a one year hyperscale data center moratorium, restrictions on tax incentives and primary onsite combustion generation, protection of grid reliability, restrictions on open loop cooling, stronger noise regulation, heat island mitigation, and continuing community participation.
Rather than treating data centers as simply pro-development or anti-development, San José should develop a measurable framework: water consumption per facility, electricity demand, backup generation and emissions, infrastructure costs, tax revenue, employment, land use, noise, and community impacts. Decisions can then be based on quantified benefits and costs.
The interim shelter letter is also significant. It argues that shelter should be dignified and lead toward permanent housing and raises concerns involving disability, language, transportation, mental health, belongings, families and safe parking. It further calls attention to accessible entrances and bathrooms, therapy resources, shelter capacity and exit pathways, and independence for Participant Advisory Councils.
Even where Council disagrees with particular policy recommendations, these are measurable operational issues. I encourage the City to respond with data concerning shelter accessibility, exits to permanent housing, transportation availability, accommodation requests, service availability and resident feedback.
B.2 — City Auditor Monthly Report
9/8/26, 2:18 PM Mail - Rules and Open Government Committee Agendas - Outlook https://outlook.cloud.microsoft/mail/[email protected]/inbox/id/AAQkADhhYzk3NTk1LTBmZDAtNDc4Yi1hN2Q0LTZjNmZjNTk5M… 6/9 The Committee agenda calls for approval of the City Auditor's August 2026 Monthly Report of Activities.
The underlying Auditor memorandum was not among the four documents provided for my review, so I do not want to pretend to critique findings I have not seen. As a general open government practice, however, Auditor reports should clearly identify completed work, audits in progress, delayed projects, implementation status of previous recommendations, and recommendations that remain unresolved.
The most useful measure of an audit function is not simply how many reports are issued, but whether recommendations result in measurable improvements.
B.3 — Mayor's Travel Request
The agenda requests authorization for Mayor Mahan to attend the Bloomberg Center for Cities at Harvard University convening, "Leading a Government Residents Can See and Trust," September 28–29, with funding provided by the Knight Foundation, and to excuse the Mayor from the September 29 Council meeting.
The subject is directly relevant to municipal government, and outside funding reduces the immediate fiscal impact to San José. I would support the travel with a simple transparency condition: disclose the value and nature of travel payments and provide a short report afterward identifying useful practices that could realistically be implemented in San José.
Given that the conference itself concerns government residents can "see and trust," public reporting of what was learned would be particularly appropriate.
C.1 — Council Transparency and Private Nondisclosure Agreements I strongly support the basic direction of this memorandum.
The proposal would ask the City Manager, City Attorney and City Clerk to develop policy options prohibiting Councilmembers from entering private NDAs concerning matters requiring City approval or oversight; preventing applicants from conditioning access to information on such an NDA; and creating a City process for legitimate confidential or trade secret information.
This strikes me as an appropriate distinction.
An elected official has obligations that differ fundamentally from those of a private business negotiator. A company seeking City approval should not be able to create a private contractual obligation that restricts an elected representative's ability to discuss public business with constituents.
At the same time, legitimate confidentiality does exist. The memorandum properly recognizes attorney-client privilege, lawful closed sessions, litigation, labor and real-property negotiations, personnel matters, trade secrets and other confidentiality protected by law.
That distinction is essential. The objective should not be "everything must always be public." The objective should be that public officials should not surrender transparency through private agreements when the law itself does not require confidentiality.
The memorandum also appropriately acknowledges San José's previous experience with NDAs during the Google negotiations and describes those agreements as having created a significant public9/8/26, 2:18 PM Mail - Rules and Open Government Committee Agendas - Outlook https://outlook.cloud.microsoft/mail/[email protected]/inbox/id/AAQkADhhYzk3NTk1LTBmZDAtNDc4Yi1hN2Q0LTZjNmZjNTk5M… 7/9 perception issue.
I would recommend that the eventual policy contain several additional safeguards.
First, confidentiality should be centralized institutionally rather than negotiated personally by individual Councilmembers. When legitimate proprietary information must be reviewed, the City Attorney should determine what legal protection applies and what information can subsequently be disclosed.
Second, any exception should be narrowly defined. A broad label such as "commercially sensitive" should not itself be enough to make information confidential indefinitely.
Third, the City should consider maintaining a public log identifying instances in which confidential business information has been submitted in connection with a City decision — without disclosing the protected information itself — including the general subject, legal basis for confidentiality and, where applicable, when confidentiality expires.
Fourth, the policy should address what happens when information initially claimed as confidential later becomes public or loses whatever legal protection justified confidentiality.
Finally, Councilmembers should receive clear guidance and training so that the policy does not inadvertently discourage legitimate communication with businesses, developers, labor organizations, community organizations and other stakeholders.
With those safeguards, this proposal could become a meaningful improvement to San José's open government framework rather than merely a symbolic prohibition on NDAs.
Conclusion
The September 9 Rules and Open Government Committee meeting illustrates why this Committee matters. Open government is not achieved simply by posting an agenda on time. It also depends upon whether residents can understand what is being decided, whether substantial expenditures are accompanied by meaningful explanations, whether long-term contracts receive periodic scrutiny, whether public comments produce measurable responses, whether accommodations allow residents with disabilities to participate, and whether elected officials remain accountable to the public rather than to private confidentiality agreements.
For the September 15 agenda, I particularly encourage greater attention to the wastewater contingency increase, long term technology contract extensions, the twenty year sanitation agreement, measurable outcomes from the homelessness work plan, the $6.93 million housing incentive, the dramatic reduction in the reasonable accommodation fee, and the environmental and neighborhood implications of the Glider Residential Project.
I also encourage the Committee to consider the practical effect of cancelling the September 15 evening session and to use time-certains where doing so would improve meaningful public participation.
Regarding the Public Record, I encourage the City to treat the submissions concerning data centers and interim shelters as sources of specific, measurable policy questions rather than simply correspondence to be received and filed.
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Finally, I support moving the Council Transparency and Private Non-Disclosure Agreements proposal forward. The City should protect legitimate confidential information when the law requires it, while establishing a clear principle that private parties seeking governmental action cannot privately determine what San José's elected representatives may communicate to the residents they serve.
Thank you for considering these comments and for your work on behalf of open, accessible and accountable government in San José.
Respectfully,
Brian Darby
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