City Attorney’s Office
Memorandum
Date: June 6, 2022
To: Honorable Mayor and Members of the City Council
From: James Sanchez, Interim City Attorney
Subject: Conflicts Review – Planning Commission Applicants
Background
The City Attorney’s Office has been asked to review applications to City Boards and Commissions regarding potential conflicts of interest. The applications generally do not provide complete information regarding potential conflicts; however, they do occasionally disclose potential conflicts of interest or incompatible offices. The purpose of this memorandum is to highlight areas of potential conflict that are disclosed by the application. In order to analyze potential conflicts, it is necessary to consider the duties of the particular commission for which the applicant is seeking appointment. This review is limited to the information provided on the applications and is not intended to be comprehensive investigation of potential conflicts involving the applicants.
Commission Duties
Pursuant to the City Charter and the City Code, the Planning Commission is responsible for recommending the adoption, amendment, or repeal of the General Plan and Specific Plans; the application of the zoning and land use regulations of the City and recommending revisions and amendments; the processing of subdivision maps and property development applications; and provid ing input on the capital improvement program.
Legal Conflicts that May Preclude Vote or Participation
Certain positions may preclude a commissioner 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:
• An applicant has an interest in property the value of which could be affected by a decision coming before the Commission
• An application shows entities that are “sources 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 applicant is an officer or employee of an entity that could be involved in a matter coming before the commission, or
• An applicant engages in a profession serving the local market that is likely to realize financial benefits or detriments, distinguishable from the public generally, that would result from the work performed by the Commission
Conflicts Review – Planning Commission Applicants
June 6, 2022
Appearance of Bias
There may be facts which would not amount to a legal conflict of interest requiring a commissioner to recuse him- or herself from a commission vote or discussion, however the relationship could create an appearance of bias on the part of the commissioner. The Code of Ethics and Values requires that Commissioners “make impartial decisions, free of . . . financial and other personal interests that impair [one’s] independence of judgment or action.” Accordingly, a situation may arise that may require a commissioner to recuse him- or herself if the facts could reasonably lead one to conclude that the applicant would be biased for or against an entity or entities.
Review Of Applicants
Set forth below are the applicants and any apparent legal conflicts of interest and/or appearance of bias related to entities that are likely to come before the commission in some manner, as identified on the applications.
• Alok Agarwal is a technical program manager at Cisco in San Jose. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Mario Bouza is self-employed as a consultant. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Eric Chu is a realtor with Intero. Although it is possible for a realtor to serve as a planning commissioner (and realtors have served as commissioners in the past), there is a heightened likelihood that a realtor will need to abstain from Planning Commission decisions, if the realtor does business within Santa Clara. If Mr. Chu received a commission related to the sale of a property within 12 months, he would need to abstain from participating in decisions affecting that property, or the owner or seller of that property (depending on who he represented). According to the Intero website, however, Most of Mr. Chu’s recent sales were outside of Santa Clara, so this may not be a frequent occurrence.
Beyond needing to abstain from decisions affecting clients and their properties, a realtor may need to abstain from decisions that have the potential to affect property values, such as the amendment of the General Plan, or adoption of a specific plan. FPPC Mattas Advice Letter, No.
A-94-173 (realtor who was also councilmember could not participate in general plan amendment where it was “foreseeable that the decisions will enhance property values in the area and [therefore] that the councilmember's business will be financially affected by the decision”). Mr.
Chu could avoid this potential conflict if he did not take Santa Clara listings in the future.
• Vincent Condito is an engineering consultant. In the event Mr. Condito performed any engineering services for compensation for a Santa Clara client, he would need to abstain from participating in any decisions affecting that client or their property.
• Neil Cortez is a project manager working in the field of computer software and hardware. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Ashley M. Gjøvik is a law student at Santa Clara University and previously worked as an engineering program manager at Apple. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Cesar Magdaleno works for the City of Palo Alto as an electric engineering estimator. Although Santa Clara occasionally has interactions with the City of Palo Alto, such as water allocation Conflicts Review – Planning Commission Applicants
June 6, 2022
issues involving the San Francisco Public Utilities Commission, those matters typically do not involve the Planning Commission.
• Ram Misra is a software engineer at Lockheed Martin. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Charlie Moon did not list an employer on his application. The application discloses neither incompatible offices nor apparent conflicts of interest. • James Murphy is an office assistant at SamTrans. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Ron Patrick indicates that he is self-employed, and does not provide any further details. The application discloses neither incompatible offices nor apparent conflicts of interest.
• Ruhina Surendran is the owner/sole proprietor of Design Intent Landscape Architects, which is based in San Francisco, and is a part-time Associate with Strata Inc., a landscape architecture firm in San Francisco. In the event Ms. Surendran performed any landscape architect services for compensation for a Santa Clara client, she would need to abstain from participating in any decisions affecting that client or their property.
• Ali Zargari is a director of engineering development at Bloom Energy. Bloom Energy has filed two lawsuits against the City, one of which is ongoing. The first lawsuit challenged a City regulation that would have prohibited the use of natural gas-powered fuel cells, which Bloom Energy installs. The City may consider similar regulations of natural-gas powered energy sources in the future. If the Planning Commission either reviews such a regulation in the future, or considers a development project that will utilize Bloom Energy power, Mr. Zargari would likely have a conflict of interest in such decisions and would need to abstain.
Conclusion
The City Council may wish to consider the above comments in making its appointments to the Commission.
cc: Rajeev Batra, Interim City Manager
Nora Pimentel, MMC, Assistant City Clerk