November 6, 2002
To: Council Colleagues
From: Jack Morton
Subject: Policies and Procedures to Foster More Professionalism and Enhance Council Performance
Many residents have been very critical of this Council and expressed great disappointment in our overall performance. Recent actions by some of my colleagues have forced me to reflect long and seriously on the reasons underlying the Community's poor opinion of us. My willingness to present those actions for Council self-analysis might be viewed by some as divisive. But it is time that the full Council takes a thoughtful, introspective look at why the community thinks of us as a dysfunctional Council. After doing that, I would ask us to join together in adopting protocols that will enable us to be a more professional political body that can work effectively to better serve our community.
There are three items that merit our serious consideration: (1) the Brown Act, (2) Council Member use of staff and (3) Council Member Interactions.
Formal interactions between elected officials are governed by the Brown Act which precludes a majority of the Council discussing any agendized matter either in a group or in a series of interactions. It seems clear to me that the Council violated the Brown Act prior to the closed session held on October 29th.
The closed session was called to deal with confidential correspondence from a Council Appointed Officer. As I understand the sequence of events that occurred prior to that session, Council Member Nancy Lytle discussed with or requested of its author the withdrawal of this correspondence. Shortly afterwards, Council Members Hillary Freeman and Yoriko Kishimoto, with probable knowledge of that contact, collectively met with the author and also discussed or requested withdrawal of the confidential correspondence. At least one of those two Council members then informed the Mayor of their contact with the author who in turn met with the author of the confidential correspondence and discussed the option of withdrawing the correspondence. The Mayor then discussed the matter with the Chair of the Council Appointed Officers Committee and they subsequently contacted outside legal counsel.
Council Members Kishimoto and Freeman have indicated in print that they meet on a weekly basis with Council member Lytle to discuss Council matters. With the added, and probably unavoidable involvement, of the Mayor and the Chair of the CAO committee, the conclusion seems inescapable that five members of the Council met sequentially and discussed an agendized issue and one of its possible resolutions.
Were the issue only a matter of a technical violation of the Brown Act, we might acknowledge the violation and leave the matter there. However, like the resignation en masse of the School Board members of the City/School Liaison Committee, I believe this incident is symptomatic of some very deep problems with this Council. Paving over this regrettable incident, as was done with the resignation of the School Board members, will not serve the Council or the community in good stead.
Although I suspect that violation of the Brown Act nullifies the disclosure protection afforded the closed session, I think the incident can be analyzed while still respecting that protection and fully honoring the correspondence's confidentiality. The issue is in no way about the content of the CAO correspondence but about how it was handled. What made the issue, for me, a matter of much more than a technical violation of the Brown Act was the fact that the full extent and exact nature of the contacts made by the group was deliberately withheld from the remaining four Council members during the closed session discussions. After learning the full extent and nature of the additional contacts made by Council Members Freeman and Kishimoto, I, and two of my colleagues, removed ourselves from the closed session. Not disclosing that they had met in concert to attempt to get the staff member to make the issue go away by requesting withdrawal of the correspondence that was the very reason for the meeting seemed a clear betrayal of the openness that one expects of a colleague.
In speaking further with my colleagues it appears that Council Members Lytle, Freeman and Kishimoto have been systematically calling the Mayor after their regular Sunday night meetings effectively preempting the Mayor from discussing agenda items with other Council members. More recently, one of the group has taken to showing up at the Mayor's Monday morning, pre-Council meetings with the Vice Mayor and City Manager, thereby exposing both the Mayor and Vice Mayor to the risk of being in technical violation of the Act if either of them were to discuss possible resolutions of any agenda item with the rest of the Council before that evening's Council meeting. Here again the spirit, if not the letter, of the Brown Act is being violated.
Alliances are part of politics and I do not wish to change that. But if the precise requirements of the Brown Act were being used to hamstring the Mayor it would be just the sort of manipulation that the Brown Act was intended to stop. If there is even a modicum of truth in these allegations, then it behooves the Council to take appropriate action to ensure that Council effectiveness is not undermined solely because of the political maneuvering of a sub-group.
An equal, if not more troubling, issue arising out of the incidents preceding the closed session was, for me, the fact that Council Members Lytle, Freeman and Kishimoto without the knowledge of, or authorization of the full Council, took it upon themselves to meet with a senior member of City staff to discuss, suggest, request or perhaps even demand withdrawal of the author's correspondence.
I do not believe that our community is the sort of community that will condone what, in the best light, can only be viewed as thoughtless intimidation. Denying staff at any level the opportunity to express a concern is flat out bad employment practice. But for three members of the Council to take it upon themselves to make such a request of a senior staff member who reports directly to the full Council is completely unacceptable behavior by an elected official. My exit, and, I suspect that of my two other colleagues was meant to very clearly express an unwillingness to be associated with such an inappropriate action.
My discussions with colleagues have also made me concerned that the same sub-group is making burdensome and even inappropriate demands of staff which violate not only the City Charter but also the public's access to information. Apparently, I am one of the last to know that members of this group are meeting extensively with department heads on an on going basis. Documents and/or written explanations evidently have been requested by members of this group who have then insisted that the requested material not be included in the weekly packet thereby denying availability not only to the full Council but to the public as well. It has further been alleged that the materials requested have not been used for Council issues but have been used for unrelated personal issues such as the widening of Sand Hill Road.
Section 2.04.190 of the City Charter requires that "the council and its members shall deal with the administrative service solely through the city manager, and neither the council not any member thereof shall give orders to any of the subordinates of the city manager, either publicly or privately". Currently, demands of a few Council Members take up almost all the time of senior staff on Monday which means that 20% of staff time is being devoted not to the demands of the City's business but to the demands of a few members of the Council. It concerns me that on occasion positions that are clearly not that of the majority may have become the basis of staff assignments largely because of the vociferous insistence of one or more Council Members.
I appreciate the City Manager's willingness to accommodate the requests of an individual Council Member. However, a clear perception seems to be developing that some Council Members behave as if the staff were there solely to do their bidding. Council Members Lytle and Freeman have certainly chided staff in public for not fulfilling their last minute requests for esoteric items or for not making same day responses to numerous questions and follow up requests.
These allegations have come from a wide number of sources and for that reason alone merit serious consideration on our part. Fortuitously, the Policy and Services Committee is scheduled this week to discuss protocols for governing Council interactions with staff. Beyond that, the Council, as a body needs, to give a clear indication to the Community, to staff and to our own Council of our full, unreserved commitment to the norms of good governance.
There is a palpable tension on the Council. At first glance, it is hard to see why there is such a clear we/they, them/us division. We are all pro-environment. We are all concerned about the impacts of traffic, anxious about the economic downturn and committed to neighborhood preservation. So why does it sometimes feel like a war is being waged?
There have been some very hard fought battles in our community, and what to the community appears to be Council "dysfunction" may in large part simply be a reflection, if not a continuation, of those battles. The extension of Sand Hill Road and the buildout of Stanford were, to put it mildly, hotly contested as was development of the former Palo Alto Medical Foundation site. Both MPACT and the Committee to Save Stanford's Open Space emerged to counter what some felt bordered on destruction of the "farm" which had been as much part of our heritage as it was the University's. South of Forest Avenue which at one time might have designated just an area of the city became SOFA, a banner under which Zoning battles are still being fought. Neighborhood Associations have been re-energized by proposed development. As a consequence, the City itself has been Balkanized into dozens of oversight groups. I must admit to being so politically naïve that I didn't understand until the night of my election what a miracle it was to be elected without being championed by MPACT or by the various neighborhood groups.
If our community is fragmented and struggling with issues, it should not be surprising that there are divisions on the Council. However, if we as members of the Council share the one goal of doing what is best for our community, then once elected we have an obligation to find ways to work with our colleagues to achieve that end. Respect is earned and consideration must be given. We can develop guidelines to ensure Brown Act compliance and we can develop protocols for Council use of staff but all the regulations in the world will not produce cordiality if we are not willing to work together.
I urge the Policy and Services Committee to consider the issues raised by the foregoing and offer suggestions to the full Council relative to the following:
As to our interactions as Council members, I recommend that we meet as a Committee of the Whole to review the recommendations of the Policy and Services Committee and with the assistance of a professional facilitator deal frankly, openly and, I hope, constructively with the issues outlined in this memorandum.
Sincerely,
Jack Morton