Action taken on the status of City Attorney

From: L C

Date: Sat, Jul 28, 2018 at 12:11 AM
Subject: Action taken on the status of City Attorney
To: City Council <citycouncil@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>, City Clerk <CityClerk@cupertino.org>

Dear Mayor Paul and City Council members,

The public has been left in the dark as to the status of the City Attorney since May. You owe the public an explanation since the taxpayers are paying the expenses caused by your action.

Final or not, some action was taken to shelve or side-step the City Attorney. When did such "action" happen? How come you didn't report it in any meeting minutes?

Final or not, you have appointed the Acting City Attorney. When did such appointment happen? How come you didn't report it in any meeting minutes?

You have an obligation to report your action taken in the closed session and the votes taken for such action, final or not. Your action, final or not, does have significant financial burden on the city, such as the following:

1. The City Attorney is still employed by Cupertino with likely a full salary of $21,000 a month plus benefits.
2. The City has to employ outside legal counsel to handle the work load of the City Attorney. How much it has cost so far?
3. The City has to employ another outside legal counsel to advise on the employment situation of the City Attorney. How much this has cost us?
4. In case the city let go of the City Attorney eventually, the city has to pay a 9 month severance pay.

I hereby request the City Council to provide a summarized financial cost for the city to handle the shelving/side-stepping of the City Attorney since maybe May.

There has been a few closed sessions on "Performance Evaluation: City Attorney": May 11, May 23, June 5. Mayor Paul has reported "no reportable action at this time" for May 11 and "no action was taken" for May 23 and June 5. Well, some action was taken and it should be reported since the public deserves to know what happened to the City Attorney and when we had an Acting City Attorney.

The issue is NOT whether the May 15 minutes accurately reflect what Mayor Paul said when reporting out for the May 11 closed session. The issue is whether the "report from the closed session" on May 11, May 23 and June 5 accurately reflect the actions, preliminary or final, taken in the closed session. And the votes taken for such actions.

Gov. Code 54953(c)(2) states that "The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action."
http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=54953.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.

No where does Gov. Code 54953 states that the City Council only needs to report "the final action". The code does states "any action taken", which refers to "any preliminary or final action".

Therefore, the reporting of the May 11 closed session is likely not accurate since it appears some preliminary action was taken. Please follow Gov. Code 54953(c)(2)  to "publicly report any action taken and the vote or abstention on that action".

Sincerely,

Liang Chao

Cupertino Resident

Liana - Request for Reconsideration of Unconditional Support of Voting Activities Inside Libraries and Near Library Entrances,

From: Liana C

To: mike.wasserman@bos.sccgove.org <mike.wasserman@bos.sccgove.org>; cccorrigan@losaltoshills.ca.gov <cccorrigan@losaltoshills.ca.gov>; joe.simitian@bos.sccgov.org <joe.simitian@bos.sccgov.org>; richw@cityofcampbell.com <richw@cityofcampbell.com>; sscharf@cupertino.org <sscharf@cupertino.org>; dion.bracco@ci.gilroy.ca.us <dion.bracco@ci.gilroy.ca.us>; jmordo@losaltosca.gov <jmordo@losaltosca.gov>; gbarbadillo@ci.milpitas.ca.gov <gbarbadillo@ci.milpitas.ca.gov>; bcraig@cityofmontesereno.org <bcraig@cityofmontesereno.org>; stevetate@charter.net <stevetate@charter.net>; elo@saratoga.ca.us <elo@saratoga.ca.us>; dave.cortese@bos.sccgov.org <dave.cortese@bos.sccgov.org>; ken.yeager@bos.sccgov.org <ken.yeager@bos.sccgov.org>; lizg@cityofcampbell.com <lizg@cityofcampbell.com>; bchang@cupertino.org <bchang@cupertino.org>; fred.tovar@ci.gilroy.ca.us <fred.tovar@ci.gilroy.ca.us>; lleeeng@losaltosca.gov <lleeeng@losaltosca.gov>; mwu@losaltoshills.ca.gov <mwu@losaltoshills.ca.gov>; aphan@ci.milpitas.ca.gov <aphan@ci.milpitas.ca.gov>; ewolsheimer@cityofmontesereno.org <ewolsheimer@cityofmontesereno.org>; caitlin.jachimowicz@morganhill.ca.gov <caitlin.jachimowicz@morganhill.ca.gov>; rkumar@saratoga.ca.us <rkumar@saratoga.ca.us>

Cc: Tracy Ellenberger <tellenberger@sccl.org>; Nancy Howe <nhowe@sccl.org>; steve.chessin@cfer.org <steve.chessin@cfer.org>; Alice Smith <alice.smith@gmail.com>; Jean Anton <jean.anton@cob.sccgov.org>

Sent: Thursday, June 7, 2018, 9:51:26 AM PDT

Subject: Request for Reconsideration of Unconditional Support of Voting Activities Inside Libraries and Near Library Entrances, 6/7/2018

Dear Chair, Vice Chair, Members, and Alternate Members of the Joint Powers Authority Board for the Santa Clara County Library District:

NOTE: While I serve as a Library Commissioner for the City of Cupertino, I write to you today as a Cupertino resident only and not a spokesperson for the Library Commission. The views expressed here are entirely my own.

Following the JPA Board's 4/26/2018 decision to "cooperate with the Santa Clara County Registrar of Voters (ROV) to increase voter participation. This cooperation may include libraries serving as a polling site and/or locating ballot return boxes inside County Library facilities if requested by the ROV." (JPA-9, Scharf dissenting), I urge the Library District to consider that the issue of voting inside libraries and near library entrances has real consequences for the communities where it operates. I also urge the Board to recognize that the 100-foot, necessary and legally required, "zone of silence" imposed by ballot boxes placed inside libraries and near library entrances interferes with two Core Values of the Library District:

"The library fosters life-long learning, promotes cultural enrichment, and supports education."
- Santa Clara County Library District, Core Values, Item 5

"The library ensures that physical spaces are welcoming, safe, clean, and accessible."
- Santa Clara County Library District, Core Values, Item 8

In Cupertino, for 29 days in May and June, community members were subjected to a ballot box that was placed near the library entrance such that the 100-foot zone of silence extended for dozens of feet inside the library.

Elections Code, Chapter 4, Definition 319.5, item (e) defines that prohibited activities within 100 feet of a ballot drop box include loitering near the ballot boxes:

“Electioneering” means the visible display or audible dissemination of information that advocates for or against any candidate or measure on the ballot within 100 feet of a polling place, a vote center, an elections official’s office, or a satellite location under Section 3018. Prohibited electioneering information includes, but is not limited to, any of the following:
...
(e) At vote by mail ballot drop boxes, loitering near or disseminating visible or audible electioneering information.

On Saturday, June 1, I was one of probably hundreds of people in my community who violated Elections Code 319.5 when, in full view of and less than 50 feet from the mail ballot drop box, I chatted with library staff who were signing up patrons for the library's summer reading program. Was my behavior "purposeful" or loitering as I chatted in the shadow of the ballot box? Who decides?

No where does the Elections Code state that loitering or "hanging out" is permitted within 100 feet of the mail ballot drop box as long as the 100 feet is contained within public building.

In fact, in all my travels to and from the Cupertino Library since the mail ballot drop box was located there on Monday, May 7, I have noticed many people "loitering" near the ballot box. "Loiterers" are community members enjoying refreshments from the nearby cafe, sitting on picnic blankets in the nearby grass, splashing in water from the nearby fountain, chatting with community members during breaks from community events happening in the library's main programming venue, Community Hall. All of these "loitering" behaviors are expected and encouraged in our public spaces, except when they are made illegal by the placement of a ballot box near the library entrance for the 29 days leading up to Election Day.

Folks who champion the placement of Free Speech-suppressing ballot boxes in our popular and well-trafficked public venues like to cite how mail ballot drop boxes boost voter turnout, but where is the evidence to support this assertion?

All the people who dropped their mail-in ballots in the boxes located inside libraries or near library entrances had to have already completed the following tasks:

+ retrieve their ballot and ballot pamphlet from their mailbox

+ research even a little bit at least one (and probably more than one) candidate or one ballot measure enough to form an opinion and cast at least one vote

+ tear off the ballot receipt stub and store it in a safe place so they can confirm later that their ballot was received by the ROV in time to be counted

+ sign the addressed, postage-paid return envelope that accompanied their ballot with their signature exactly as it was recorded with the ROV at the time they last registered to vote

It is difficult to accept with a straight face that anyone who has completed the necessary bare minimum steps described above to cast even one vote by mail would then toss up their hands in despair at the prospect of needing to find a location other than the ballot box located inside a library or near a library entrance where they can safely return their ballot.

Every USPS mailbox is a safe, secure, and accessible location where voters can return their ballots through Election Day. Every mail-in ballot in Santa Clara County includes an addressed and postage-paid envelope, so voters who return ballots by mail are not burdened by additional costs not borne by those who return their ballots to ballot drop boxes.

75% of registered voters from California voted in November 2016.

83% of registered voters from Santa Clara County voted in November 2016.

When compared to State returns, Santa Clara county residents returned ballots at a rate that is above average. But what about the 17% of registered voters in Santa Clara County who did not vote at all in the November 2016 General Election?

The 17% are the voters that nobody reached. These are the voters who could not find a candidate or ballot measure that moved them enough to cast even one vote.

If we are going to worry about voter behavior, it’s the 17% of registered voters who did not vote in 2016 who warrant our concern. For the 17% of registered non-voters from 2016, it made no difference at all that there was a drop-off ballot box located inside a library or near a library entrance. However, had those non-voters had the opportunity to chat with a neighbor about local issues in a public venue, that conversation might have been just enough to motivate one or more of them to learn more and vote.

I urge the Board to reconsider its position of unconditional support of multiple day voting activities located inside libraries and near library entrances, as support for voting activities silences Free Speech in our well-trafficked public spaces at the critical times leading up to elections when citizens are seeking information about ballot measures and candidates.

Sincerely,

Liana Crabtree
Cupertino resident

Urs - The Responsible Thing to Do Would be to Cut Back Until Traffic Fits

Dear Cupertino Planning Department: 

I live on Tantau in the Loree Estates near Steven’s Creek. I’m hoping that the City is able to stay away from any “E” or “F” Traffic Ratings for whatever becomes approved for the Vallco Site. One thing that is clear from the DEIR on traffic is that roadways in Cupertino are already past their limits without any further development with a long list of intersections that just can’t be improved because of property boundaries. I am not against development, and can see the allure of the green roof and architecture, but certainly question the wisdom of planning decisions that would head significant parts of Cupertino into traffic situations common in cities with poor planning departments. 

 The top contributors of added traffic at Vallco are pretty much proportional to how densely developed that site becomes. It does not seem to matter very much if it is Housing, Office or Retail. It seems like the sensible thing to do would be to significantly shrink the size of the Vallco redevelopment project as currently being proposed. Nowhere in the DEIR is this really analyzed or discussed directly. 

 Only the Housing elements are subject to the limits of new state law if I understand the intent of that legislation. If something needs to be fast tracked for state laws, perhaps guiding re-development only to housing might be the right compromise to get the project quicker through the planning approval process. The current projects proposed are so heavy with office, that the housing being generated really does nothing positive for the regional housing imbalance problem. 

 Very dense cities eventually add subways to increase mobility once street level becomes unusable. Subways give an additional travel layer that isn’t constrained by existing property boundaries. In the digital chip business, it is what is done when you can’t connect all the logic gates: add more metal layers to the chip to handle the increased traffic. Its called “Rent’s Rule”. Until there are more ways to get around, the responsible thing to do would be to cut the project back until traffic fits, or delay the project until subways, or flying cars, are built. 

 Urs

Randy - Brown Act Regarding Report of Action Taken in Closed Session

From: Randy Shingai <randyshingai@gmail.com>

Date: Tue, Jul 3, 2018 at 9:55 AM
Subject: Today's Closed Session, Approval of May 15, 2018 Minutes, and Government Code 54957.1
To: City Council <citycouncil@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>, City Clerk <cityclerk@cupertino.org>

Dear Council and City Attorney

I just wanted you to be mindful of portions of the Brown Act that relate to closed session reporting.

Government Code 54957.1

(a) The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention on that action of every member present, as follows:

(2) Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

(5) Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.

(b) Reports that are required to be made pursuant to this section may be made orally or in writing. The legislative body shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section 54954.1 or 54956, if the requester is present at the time the closed session ends, copies of any contracts, settlement agreements, or other documents that were finally approved or adopted in the closed session. If the action taken results in one or more substantive amendments to the related documents requiring retyping, the documents need not be released until the retyping is completed during normal business hours, provided that the presiding officer of the legislative body or his or her designee orally summarizes the substance of the amendments for the benefit of the document requester or any other person present and requesting the information.