E X E C U T I V E S U M M A R Y O F
I N V E S T I G A T I V E F I N D I N G S
City of Santa Clara
Report Concerning Complaint Against Councilmember Anthony Becker; Interim City Manager Rajeev Batra; Interim City Attorney James Sanchez; and Interim Assistant City Attorney Steve Ngo December 6, 2022
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Brief Introduction
The City of Santa Clara (City)1 retained Van Dermyden Makus Law Corporation to conduct an independent investigation into allegations Mayor Lisa Gillmor and City Councilmember Kathy Watanabe made against City Councilmember Anthony Becker; Interim City Manager Rajeev Batra; Interim City Attorney James Sanchez;2 and, Interim City Attorney Steve Ngo.
Gillmor and Watanabe alleged that, during both the public and closed sessions of the August 30, 2022 City Council meeting, Becker engaged in “hostile,” “bullying,” and “unprofessional” conduct toward them. Gillmor and Watanabe also alleged that, during the closed session portion of that meeting, Batra, Ngo, and Sanchez failed to take appropriate action regarding Becker’s conduct.
This serves as the Executive Summary of Investigative Findings (Executive Summary). It is not intended to be a comprehensive recitation of the evidence.3 Instead, it provides a summary of the evidence and findings.
Overview Of Gillmor’s And Watanabe’s Complaint And Becker’s, Batra’s, And Ngo’s Responses4
Allegations. Gillmor and Watanabe alleged that, during the August 30, 2022 City Council meeting (both open and closed sessions), Becker engaged in “aggressive, verbally attacking,” “bullying and hostile” conduct that was “disrespectful,” “unprofessional, unacceptable, and violated the Code of Ethics”5 generally. Specifically, Gillmor alleged that, during the open session, Becker accused her of leaking confidential information and engaging in “political theater” during a campaign season, which she characterized as “personal attacks” that “crossed the line at least […] four or five times [….]” Gillmor and Watanabe alleged Becker remained “angry,” continued his “same narrative” from the open session, and became “more aggressive” during the ensuing closed session. They recalled Becker continued to make “accusations” against Gillmor, Watanabe, and former City administration members in an “intimidating,” “mean,” and “aggressive tone.” Watanabe stated Becker was “attacking” Gillmor and others who were not present, and Becker responded he was going to make a motion. Watanabe stood up, twice stated, “This is bullshit,” and then left the closed session and entered the Council Chambers. As she left, Becker partially stood up, “screamed,” “Fuck you” to Watanabe, and raised his middle finger at her.
Gillmor alleged that, after Watanabe left the closed session, Becker “threatened” Gillmor, “I better not be reading about this in the [San Francisco] Chronicle tomorrow from you leaking this. And if we do,
1 The City’s outside legal counsel, Genevieve Ng, with Sloan Sakai Yeung & Wong LLP, provided logistical assistance with coordinating this investigation.
2 Only Gillmor named Sanchez as a Respondent in this investigation. 3 See Attachment 1 for the Investigative Methodology, which includes descriptions of the witnesses interviewed (nine); documents reviewed; credibility determinations; standard of review; and, independence. 4 Sanchez did not respond to my multiple requests to schedule an investigative interview and appears to be on a Thus, I was unable to interview him.
5 The City’s Code of Ethics and Values sets forth standards of “personal and professional conduct,” consisting of eight “core values,” and applies to “[a]ll elected and appointed officials, City employees, volunteers, and others who participate in the City’s government.” Attachment 2.
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we’ll know it’s you.” Gillmor recalled she responded to Becker, “I am not going to take this abuse,” and, “I’m not going to accept this behavior,” and left the closed session to “remove [herself] from the toxic situation.”
Watanabe and Gillmor both reported feeling “shaken” by Becker’s conduct. Subsequently, Gillmor called Police Chief Pat Nikolai to report she felt “verbally assaulted by” Becker, and she did not “trust” him because he was “irrational.” Gillmor and Watanabe clarified; however, that they did not feel physically threatened by Becker.
Gillmor and Watanabe further alleged that no one, including Batra, Ngo, or Sanchez6 took any action regarding Becker’s conduct. Watanabe opined that Ngo in particular, “who was considered the parliamentarian of the closed session,” should have “stepped in” to address Becker’s conduct by telling him, “This is inappropriate. Please stop your line of language. Please stay on the topic. Please don’t talk about people that aren’t here. Just keep the discussion to what we’re there to talk about right now, what this agendized closed session item is about.” Gillmor believed Batra also should have acted, because, “I feel like the City Manager’s supposed to maintain a safe workspace for everyone, including Councilmembers.” Conversely, Watanabe was unsure whether Batra’s role was to “hold[] people accountable to their actions or step[] in.” Instead, she opined it was the role of the Mayor to “guide the conversation.”
Responses.
Becker. Becker denied engaging in “hostile,” “aggressive,” or “verbally abusive” conduct toward Gillmor or Watanabe, during either the open or closed sessions. Although he acknowledged accusing Gillmor of leaking confidential information and engaging in “political theater” during both sessions, he opined his comments did not violate the City’s Code of Ethics. Instead, he asserted, “I was basically speaking the truth,” and, “I stand by my statements.” He added Gillmor and Watanabe “hit a nerve” by accusing him of “being in the [San Francisco] 49ers’ pocket,” which caused him to respond “passionately” and “in a very stern” but “fair” manner. He clarified, “I think I was being as professional as I can be. I was trying to be collaborative. […] And I was also trying to defend myself, my community, and my colleagues [against Gillmor’s and Watanabe’s accusation that] we [referring to himself and the other Councilmembers] were basically doing wrongdoing, which we weren’t.” Becker also denied saying, “Fuck you” to Watanabe or raising his middle finger at her during the closed session. Instead, he asserted they had a “very robust discussion,” in which he “pushed back” on Gillmor’s and Watanabe’s “accusations” that he was aligned with the 49ers by stating they caused “this mess” by bringing Levi’s Stadium to the City. He contended he did so in a non-aggressive and civil manner. He explained he felt “very emotionally disturbed” by a member of the public who entered the closed session without permission moments earlier, and who accused the Council of “hiding things from the public.” Once this individual was removed from the session, Becker told Gillmor and Watanabe, “[W]hat just happened [indicates] how the community keeps thinking that there’s something always wrong happening between us […] or there’s some corruption or something,” due to the “narrative” created by Gillmor, Watanabe, and former City administration members to that effect over the past two years. Additionally, Becker stated, “I wanted to make a motion before I get cut off again,” after Gillmor and Watanabe “consistently interrupt[ed]” him. At that point, Watanabe got up, “slammed” her chair into the table, and “yelled” at Becker, “I’m not going to listen to your bullshit anymore,” while “slamming” the door on her way out. Becker acknowledged he then said either, “Whatever, eff yourself,” or, “Eff off, goodbye,”
6 Sanchez appeared for this meeting remotely, via Zoom.
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while seated and raising his hand to wave Watanabe off. He denied using the word, “fuck,” or raising his middle finger during this time.
Becker further denied “threatening” Gillmor after Watanabe left the closed session. Instead, he asserted Gillmor asked him, “Did you just say, ‘Fuck off’?” and he responded, “No, I didn’t, [Gillmor]. You can make this up in your head all you want,” and, “I dare you to go leak this out of closed session. I double dare you,” in a “joking” tone. At that point, Gillmor got up, told Becker, “You’re going to regret this,” and left the closed session.
Becker reflected, “[F]rankly, I think I was inappropriate by saying, ‘Eff off.’ And I was trying to be as PG- 13 as I can, and I regret saying that. So, that was a mistake […], it was just a slip. […] But the reason why [I said it] was because [Watanabe] verbally assaulted me by saying, ‘I’m not going to listen to your bullshit anymore.’”
Batra. Batra asserted he did not, and was not obligated to, intervene regarding Becker’s conduct during the closed session because it was not his place to do so. Instead, he reasoned the Mayor reads a “behavioral standards sheet” at the start of every Council meeting, which states, “[T]he Mayor’s direction in matters of process and decorum should be followed.” Batra opined this statement applied to all meeting attendees, including Councilmembers and City staff, and to both the open and closed sessions.
He added, “In my professional career, [the] Mayor is Chair,” and thus “the head of the meeting” who “control[s] the behavior,” including “whether [to] let people speak out profanities or loud[ly]. If I was chairing and not stopping them, then it’s on me. I’m not chairing the meeting. I’m just there as staff to provide support. If I was asked [to do] something and I didn’t do it, that’s another story.” He further reasoned that, if the conduct during the closed session “had gone beyond” verbal to physical, “then, of course, I was prepared to step in somehow.” He clarified, “But this verbal thing, it was almost like showing respect to the Mayor, as the Chair, for her to do whatever she deems appropriate, because she called [Becker] on it when he was flipping [off Watanabe] or whatever. […] [S]he could handle that.
She’s a seasoned Mayor. She’s run hundreds of these meetings, and she’s seen bad behavior from the general public in the meetings. She has taken action on that, so that’s why I personally defer to her.” Ngo. Ngo asserted he did not, and was not obligated to, intervene regarding Becker’s conduct during the closed session for three reasons. First, he opined it was not his role to do so. He explained, “[I]n our [referring to his and Sanchez’s roles as City Attorney] contract, it actually says, ‘Do not engage in political debate.’ […] And I have to draw a distinction between my role and not crossing the line into essentially a de facto eighth member of the Council. […] And, by the way, they’re [referring to the Council] my boss. I’m not their boss. I’m not a co-equal. So, they have control over my working conditions, not the other way around.” Second, Ngo perceived Gillmor, as Chair, could run the meeting and had stepped in to address improper conduct in the past. He recalled, “I’ve seen [Gillmor] handle or not be bothered by […] that type of exchange,” and, “As [Becker] was speaking, before Watanabe said whatever she said and walked out, nothing about that stood out to me as unusual to the degree that I had to assert myself because the Mayor couldn’t manage it. […] Gillmor controls meetings very well. […] I’ve never seen her have problems telling someone, ‘Stop. Cut it out. Let’s move on. Stop asking questions. Can you move on, please? We’re done here.’ […] She just never struck me…I did not form the opinion that she was vulnerable to that type of interaction.” Third, Ngo stated the conduct happened too quickly for him to react. He recalled, “[T]o the time [Watanabe] stood up and left, and then the Mayor followed her […] could have been less than a minute.” EXECUTIVE SUMMARY OF INVESTIGATIVE FINDINGS | CITY OF SANTA CLARA
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Ngo posited the same reasons as to why Sanchez did not step in, noting, “[I]f [Sanchez] felt he needed to jump in, he would have. […] I don’t know why he would have been expected to step in for this fight between our superiors.”
Summary Of Findings
After a thorough review of the evidence, I reached the following findings by a preponderance of the evidence:
• Conduct By Becker – Sustained In Part.
o I do not find Becker made “hostile,” “bullying,” or “unprofessional” comments during the open session to Gillmor and/or Watanabe.
o I find Becker said, “Eff off” to Watanabe during the closed session. However, this finding is mitigated by other factors.
o I do not find Becker “threatened” Gillmor during the closed session. o I find Becker did not raise his middle finger toward Watanabe during the closed session.
I make these findings for the following reasons.
Open Session. Becker’s conduct during the open session was recorded and is undisputed. Although the comments Becker made, addressed to Gillmor, were accusatory in nature (e.g., “It is hypocritical that the Mayor is concerned about supposed leaks, but where do these leaks come from in the first place? Some people here work for the San Francisco Chronicle – in my opinion, that’s where the leaks are coming from”; and, “If the Mayor’s going to start throwing around accusations, I have a hundred more I can throw back.”), I find they did not rise to the level of “hostile,” “bullying,” or “unprofessional” conduct.
Instead, on their face, Becker did not make any direct accusations against Gillmor or Watanabe. As evident from the content of his comments, Becker was responding to comments Gillmor made, insinuating there was improper conduct by Becker and other Councilmembers. Although Becker’s tone was stern, I did not find it to be “hostile,” and he did not raise his voice.
Additionally, none of the nine witnesses corroborated this allegation. Instead, they opined Becker was responding to comments and “accusations” Gillmor made about “his character,” and they noted the Councilmembers, including Gillmor, “regularly speak to each other that way,” and “accuse each other of awful things.”
Closed Session. I find Becker said, “Eff off” to Watanabe in the closed session for the following reasons.
First, Becker admitted doing so. Second, the witnesses were split as to whether Becker used profanity:
some witnesses heard him say, “Eff”; some heard him say “fuck”; and, others did not hear him say either word. However, most witnesses who heard one of the two terms corroborated Becker’s assertion that he made this comment in a low tone, or under his breath, and not in a raised voice, as alleged by Gillmor.
I thus find Becker more credible than Gillmor, and that it is more likely than not that Becker said, “Eff,” rather than “fuck.” I also find it more likely than not that, because Becker said, “Eff off” in a low voice, those witnesses who perceived Becker said the word “fuck” may not have heard him clearly.
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I find this comment to be “unprofessional” but not “hostile” or “bullying,” as it uses impolite language indicating a profanity, and was directed specifically toward Watanabe. Becker himself acknowledged this comment was “inappropriate.” However, I find Becker’s comment is mitigated by the following factors.
First, Becker made this comment as Watanabe was leaving, and she herself did not hear the comment, as Becker said it quietly, as noted above. Second, also as noted above, I find Becker did not use the full word, “fuck.” Third, Becker’s comment was undisputedly in response to profanity Watanabe used twice toward him, i.e., the word, “bullshit.” Fourth, this appears to be an isolated comment, without any other instances of Becker allegedly using profanity or other improper language.
Although Becker undisputedly told Gillmor, “I better not be reading about this in the Chronicle tomorrow from you leaking this. And if we do, we’ll know it’s you,” I do not find Becker thereby “threatened” Gillmor. First, Becker credibly asserted he made this comment in a “joking” manner. Second, none of the witnesses perceived Becker’s comment to be a “threat.” Third, Gillmor and Watanabe themselves stated they did not feel physically threatened by Becker.
Additionally, I do not find Becker raised his middle finger toward Watanabe. I note Watanabe did not witness this alleged conduct, as she had already left the closed session. Becker credibly asserted he raised his hand to “wave off” Watanabe but denied also raising his middle finger at that time. The majority of the witnesses did not observe Becker raise his middle finger at this time. I determined that the two witnesses (aside from Gillmor) who perceived Becker raised his middle finger were not positioned in such a way so as to have a full, clear view of Becker. Thus, I find insufficient evidence that Becker engaged in this alleged conduct.
• Conduct By Batra, Ngo, And Sanchez – Not Sustained.
Although Batra, Ngo, and Sanchez undisputedly did not intervene in response to Becker’s alleged conduct during the closed session, I find they did not have a duty to do so. I make this finding for the following three reasons. First, Batra and Ngo credibly asserted, and all of the witnesses corroborated, that it was not their role, as “subordinates” to the Council, to intervene. The witnesses did not corroborate Watanabe’s perception that Ngo, as the City Attorney, was the “parliamentarian” of the Council. Instead, one witness opined, “I don’t think it’s [the City Attorney’s or the City Manager’s] job to police people’s behavior.”
Second, the witnesses, as well as Watanabe, all corroborated Batra’s and Ngo’s assertions that Gillmor, as Chair of the Council, is charged with controlling meetings and “handling” improper behavior, and has done so previously. One witness noted that, when meetings “get off the rails […], generally, it’s the Chair’s job to get the meeting back on track.” As noted above, neither Gillmor nor Watanabe perceived a physical threat to their safety necessitating additional assistance.
Third, the witnesses all corroborated Batra’s and Ngo’s assertions that the alleged improper events during the closed session occurred very quickly, in under two minutes. Thus, Batra, Ngo, and Sanchez (who was not physically present) did not have time to intervene.
Thus, I find that, although Batra, Ngo, and Sanchez did not intervene, they were not able to, and were under no obligation to do so.
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This concludes the investigation.
Respectfully Submitted,
Anjuli Fiedler
1 INVESTIGATIVE METHODOLOGY | CITY OF SANTA CLARA
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Attorney Client Privileged
Investigative Methodology
I conducted the investigation using specific methodology following industry standards. This section provides an overview of the investigative processes.1
Witnesses and Documents. I conducted nine interviews of nine witnesses. All interviews were conducted via videoconference. I reminded interviewees they were subject to governing policies prohibiting retaliation for either bringing a claim or participating in this review process. I also reviewed documents provided by the client and the parties.
Credibility Determinations. In reaching the findings, I carefully considered the perspectives, observations, and information from all interviewees. In resolving factual disputes, I utilized credibility factors including direct or indirect corroborating evidence, lack of corroborating evidence, motivations of parties and witnesses, plausibility of events, consistent and inconsistent evidence, material omissions, proximity in time, comparator factors, and articulated rationale for actions or decisions.
Standard of Review. I draw my conclusions in this Executive Summary from the totality of the record and a thorough analysis of all the facts. Where necessary, I made credibility determinations.
I reviewed, compared, and analyzed the information provided under a preponderance of the evidence standard to determine whether the allegations were with or without merit. “Preponderance of the evidence,” for purposes of this Executive Summary, means that the evidence on one side outweighs, or is more than, the evidence on the other side. This is a qualitative, not quantitative, standard.
Independence. The City and its representatives allowed me discretion to conduct this review as I determined to be necessary. The City gave me complete access to all requested witnesses and documents. No person interfered with, or attempted to influence, the findings in this Executive Summary.
1 I was retained to use my legal skills to assist the City in developing a response to the allegations. Specifically, I used my expertise in employment law to arrive at findings based on a professional evaluation of the evidence.
2 City of Santa Clara, CA
Code of Ethics and Values
PREAMBLE
The proper operation of democratic government requires that decision-makers be independent, impartial, and accountable to the people they serve. The City of Santa Clara has adopted this Code of Ethics and Values to promote and maintain the highest standards of personal and professional conduct in the City’s government. All elected and appointed officials, City employees, volunteers, and others who participate in the city’s government are required to subscribe to this Code, understand how it applies to their specific responsibilities, and practice its eight core values in their work.
Because we seek public confidence in the City’s services and public trust of its decision-makers, our decisions and our work must meet the most demanding ethical standards and demonstrate the highest levels of achievement in following this code.
1. As a Representative of the City of Santa Clara, I will be ethical.
In practice, this value looks like:
a.) I am trustworthy, acting with the utmost integrity and moral courage. b.) I am truthful, do what I say I will do, and am dependable. c.) I make impartial decisions, free of bribes, unlawful gifts, narrow political interests, and financial and other personal interests that impair my independence of judgment or action. d.) I am fair, distributing benefits and burdens according to consistent and equitable criteria. e.) I extend equal opportunities and due process to all parties in matters under consideration. If I engage in unilateral meetings and discussions, I do so without making voting decisions. f.) I show respect for persons, confidences, and information designated as “confidential.” g.) I use my title(s) only when conducting official City business, for information purposes, or as an indication of background and expertise, carefully considering whether I am exceeding or appearing to exceed my authority.
2. As a Representative of the City of Santa Clara, I will be professional.
In practice, this value looks like:
a.) I apply my knowledge and expertise to my assigned activities and to the interpersonal relationships that are part of my job in a consistent, confident, competent, and productive manner. b.) I approach my job and work-related relationships with a positive attitude. c.) I keep my professional knowledge and skills current and growing.
3. As a Representative of the City of Santa Clara, I will be service-oriented.
In practice, this value looks like:
a.) I provide friendly, receptive, courteous service to everyone. b.) I am attuned to, and care about, the needs and issues of citizens, public officials, and city workers. c.) In my interactions with constituents, I am interested, engaged, and responsive. 2 4. As a Representative of the City of Santa Clara, I will be fiscally responsible In practice, this value looks like:
a.) I make decisions after prudent consideration of their financial impact, taking into account the long-term financial needs of the City, especially its financial stability. b.) I demonstrate concern for the proper use of City assets (e.g., personnel, time, property, equipment, funds) and follow established procedures.
c.) I make good financial decisions that seek to preserve programs and services for City residents.
5. As a Representative of the City of Santa Clara, I will be organized.
In practice, this value looks like:
a.) I act in an efficient manner, making decisions and recommendations based upon research and facts, taking into consideration short and long term goals.
b.) I follow through in a responsible way, keeping others informed, and responding in a timely fashion. c.) I am respectful of established City processes and guidelines.
6. As a Representative of the City of Santa Clara, I will be communicative.
In practice, this value looks like:
a.) I convey the City’s care for and commitment to its citizens. b.) I communicate in various ways that I am approachable, open-minded and willing to participate in dialog. c.) I engage in effective two-way communication, by listening carefully, asking questions, and determining an appropriate response which adds value to conversations.
7. As a Representative of the City of Santa Clara, I will be collaborative.
In practice, this value looks like:
a.) I act in a cooperative manner with groups and other individuals, working together in a spirit of tolerance and understanding.
b.) I work towards consensus building and gain value from diverse opinions. c.) I accomplish the goals and responsibilities of my individual position, while respecting my role as a member of a team.
d.) I consider the broader regional and State-wide implications of the City’s decisions and issues.
8. As a Representative of the City of Santa Clara, I will be progressive.
In practice, this value looks like:
a.) I exhibit a proactive, innovative approach to setting goals and conducting the City’s business. b.) I display a style that maintains consistent standards, but is also sensitive to the need for compromise, “thinking outside the box,” and improving existing paradigms when necessary. c.) I promote intelligent and thoughtful innovation in order to forward the City’s policy agenda and City services.
Approved by City Council on April 4, 2000; modified by Council on August 21, 2001