Summary of Violations:
- Illegal Contract: Contract with the traffic consultant Fehr & Peers for "Traffic Data Collection for Vallco Mall Redevelopment Project Services" was already signed on March 2014 without Council approval when the total amount of contract exceeds $175,000.
- Misleading Answers to City Council: During June 16, 2014 City Council Meeting, City Staff contended that "So the scope that's before you. They haven't started working yet." But a contract was signed back in March and the work on traffic data collection, which is a part of the scope of work listed in the EIR contract, has already started.
- Conflict of Interest: The City Attorney signed the contract with Fehr & Peers when the attorney should be the enforcement officer for City Municipal Code.
Attachment A & B: (Page 3-6) Email exchange between Randy Shingai and Assistant Attorney Colleen Winchester, where Winchester indicated the contract with the traffic consultant Fehr & Peers for "Traffic Data Collection for Vallco Mall Redevelopment Project Services" was already signed on March 2014.
Attachment C (Page7-9): Transcript of June 16 Council Meeting, where staff insisted that no Vallco EIR work is done when pressed by Vice Mayor Barry Chang.
Attachment D (Page 10-): Relevant sections of Cupertino Municipal Code highlighted, which states that Council approval is required for any contract over $175,000.
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From: Peggy Griffin
Date: Wed, Jun 24, 2015
Subject: Formal Complaint of Possible Violation of Cupertino Municipal Code and Misleading City Council
To: rsinks@cupertino.org, City Council <citycouncil@cupertino.org>
Cc: City Clerk <CityClerk@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>
Date: Wed, Jun 24, 2015
Subject: Formal Complaint of Possible Violation of Cupertino Municipal Code and Misleading City Council
To: rsinks@cupertino.org, City Council <citycouncil@cupertino.org>
Cc: City Clerk <CityClerk@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>
Dear Mayor Sinks, Vice Mayor Chang and City Council Members,
I
am submitting this formal complaint letter with its attachments on
behalf of Cupertino Residents for Sensible Zoning Action Committee FPPC
#1376003. The letter and it’s attachments follow below and I have
attached the .PDF version to this email.
Sincerely,
Peggy Griffin, on behalf of Cupertino Residents for Sensible Zoning Action Committee, FPPC #1376003
CRSZaction Formal Complaint letter with Attachments 2015-06-24
Cupertino Residents for Sensible Zoning Action Committee
FPPC #1376003
Mayor Rod Sinks
City of Cupertino
Dear Mayor Sinks:
One
of our members, Randy Shingai, wrote an e-mail addressed to the City
Council and City Attorney about a possible violation of Cupertino
Municipal Code 3.22.060. That is Attachment A to this letter.
Assistant City Attorney Colleen Winchester’s response to that e-mail is included as Attachment B.
The
specific point raised in Mr. Shingai’s e-mail was not addressed in Ms.
Winchester’s response. Mr. Shingai did not contend that work was
performed without a contract. Mr. Shingai made no mention of a
contract. Mr. Shingai’s contention was that, “The work was billed
before it was approved by the council.” Mr. Shingai also pointed out
that the work would only be exempt from the bidding requirements in
Municipal Code 3.22, and would therefore still be subject to the dollar
threshold that would require prior City Council approval.
In
her e-mail response to Mr. Shingai, Ms. Winchester attached a copy of
the contract with Fehr & Peers that the City signed without City
Council approval In March 2015. Mr. Shingai forwarded a copy of that
contract to the City Council on June 20, 2015. Notice that the City
Attorney has also signed this document under the heading “APPROVED AS TO
FORM.”
The
“scope of work” in that illegally signed March 2015 contract is a
subset of the “Scope of Work” in the contract that was approved as
Agenda Item #10 at the June 16, 2015 City Council Meeting. Since Fehr
& Peers’ estimate of the entire traffic portion of the scope of work
was $256, 795; according to Municipal Code 3.22.060(B) the City should
have forseeably known that the full scope of work would be over the
$175,000 threshold in 22032(b) of the Public Contract Code. Therefore
the March 2015 was in violation of Municipal Code, as segmenting the
full scope of work into portions that fall under the $175,000 threshold
would violate the intent of the law.
This
issue was brought up during the questioning of City Staff during the
deliberation of Item #10 at June 16, 2015 City Council Meeting.
Attachment C is a transcript of a portion of that exchange.
The
answers provided by City Staff at the June 16 City Council Meeting are
troubling. We request the City have a hearing on this issue. The
issues we have are as follows:
- Did City Staff violate Municipal Code 3.22.060 in the awarding of the March 2015 contract with traffic consultant, Fehr & Peers.
- Did City Staff mislead the City Council during questioning at the June 16, 2015 City Council Meeting?
It
is worth noting that the City Attorney signed the March 2015 contract
with the traffic consultant, Fehr & Peers, under the heading
“APPROVED AS TO FORM.” A conflict may therefore exist with the City
Attorney’s role of enforcement officer that is specified in Municipal
Code 2.18.020(F).
Here is 2.18.020(F):
F. Prosecute
all violations of City ordinance; provided, however, that the City
Attorney is not required to prosecute any misdemeanor or infraction
within the City arising out of a violation of State law.
The
City Council should therefore consider appointing an independent party
to investigate and prosecute the March 2015 contract with the traffic
consultant, Fehr & Peers.
Cupertino Municipal Code 3.22 is included as Appendix D.
Here is a link to the alleged illegal contract with Fehr & Peers that the City signed in March 2015
Here is a link to the full Scope of Work from the June 16, 2015 City Council Meeting Agenda
Thank You,
Cupertino Residents for Sensible Zoning Action Committee
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