CC 11-18-2024 Item No. 2 City Attorney Evaluation_Written CommunicationsCC 11-18-2024
Item No. 2
City Attorney Chris Jensen
Evaluation
Written Communications
From:Peggy Griffin
To:Sheila Mohan; J.R. Fruen; Hung Wei; Liang Chao; Kitty Moore
Cc:City Clerk
Subject:RE: 2024-11-18 City Council Meeting-CLOSED SESSION ITEM2-City Attorney Eval-Brown Act Violations
Date:Friday, November 15, 2024 5:25:35 PM
Attachments:image001.png
Memo from CA Jensen Re Brown Act Teleconference Rules.pdf
2023-02-22 SCC Overview of Brown Act-P20 Teleconference.pdf
2024-06-24 EMAIL sent to CA Jensen re 3 Brown Act Issues.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
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Adding City Clerk. I forgot to copy them.Also, adding a 3rd attachment which is a copy of the email I sent CA Jensen and Asst. CA Woo.
From: Peggy Griffin <griffin@compuserve.com>
Sent: Friday, November 15, 2024 4:56 PM
To: 'Sheila Mohan' <SMohan@cupertino.gov>; jrfruen@cupertino.gov; 'Hung Wei'
<HWei@cupertino.org>; 'Liang Chao' <LChao@cupertino.gov>; 'Kitty Moore'
<kmoore@cupertino.org>
Subject: 2024-11-18 City Council Meeting-CLOSED SESSION ITEM2-City Attorney Eval-Brown Act
Violations
PLEASE INCLUDE THIS EMAIL AND ALL ATTACHMENTS AS PART OF WRITTENCOMMUNICATIONS FOR THE ABOVE MEETING AGENDA ITEM. Dear City Council, ISSUE: City Attorney Jensen continually allows Brown Act violations regarding remoteteleconferencing by commissioners and members of the City Council even though he is awareof the rules. NOTE: On March 22, 2023 – City Attorney Jensen sent a memo to City Manager Wu and CityClerk Kirsten Squarcia describing the requirements for teleconferencing under the Brown Actso he is aware of the rules. For these 3 remote teleconferencing uses:March 28, 2024 – Bike/Ped Commissioner John Zhao attends remotely from Shanghai,China.April 17, 2024 – Bike/Ped Commissioner John Zhao attends remotely from Shanghai, ChinaJune 11, 2024 – Planning Commissioner Tejesh Mistry attends remotely from Holtsville, NY the Brown Act issues were:1. Agendas did not state that the public can attend the teleconferencing locations.2. The teleconference locations in the agendas were not detailed enough for the public to findthe location to be able to attend.3. Their agendas did not list the date and time at the separate locations. They were in differenttime zones and Example 2 and Example 3 were on different days due to time zones.4. The City of Cupertino was not publishing the agenda at their teleconferencing locations. For this remote teleconferencing use:September 18, 2023 – City Councilmember Mohan participates in the City Council meetingremotely.
The Brown Act issues were:On Tuesday, September 19, 2023, at the Cupertino City Council’s regular meeting, Vice MayorShiela Mohan participated remotely pursuant to California Government Code Section 54953(f)(2). Under Govt. Code 54953(f)(2), “A member of the legislative body shall only participate inthe meeting remotely…if all of the following requirements are met:”. There are threerequirements:A. Circumstances under which the member of the legislative body needs to participateremotely.B. The member shall publicly disclose at the meeting before any action is taken, whetherany other individuals 18 years of age or older are present in the room at the remotelocation with the member, and the general nature of the member’s relationship with anysuch individuals.”C. The member shall participate through both audio and visual technology. City Clerk Kirsten Squarcia announced at the beginning of the City Council meeting (Videotime 00:35), Vice Mayor Mohan was going to “participate remotely under an exemptionallowed under the Brown Act.” At no time during the 4-hour (4:01:29) meeting did Vice Mayor Mohan “publicly disclose at themeeting” whether any other individuals 18 years of age or older were present. This was aviolation of CA Govt Code Section 54953(f)(2)(B). During roll call, Vice Mayor Mohan was not visible when she said “Here.” For the remainder ofthe council meeting, the only time the public saw Vice Mayor Mohan on the video was whenshe spoke. There were long periods during the meeting in which she was not visible at all. Amember of the public walking in during these periods would assume that she was not present.The only time Vice Mayor Mohan was visible was when she spoke and not even seen during rollcall. This is a violation of CA Govt Code Section 54953(f)(2)(C) which states “The member shallparticipate through both audio and visual technology.” Without full time video of Vice MayorMohan, the public had no confirmation that she was participating (listening, observing, etc.). As described above, the two Brown Act violations occurred when a member of the legislativebody participated remotely in the Cupertino City Council meeting on September 19, 2023:1. Vice Mayor Mohan did not publicly disclose during the meeting before any action wastaken whether other individuals 18 years of age or older were present in the room withher and their relationship with her. This violated CA Govt Code Section 54953(f)(2)(B).2. Vice Mayor Mohan did not participate through both audio and visual technologythroughout the meeting. This violated CA Govt Code Section 54953(f)(2)(C). For continual remote teleconferencing used by Councilmember Hung Wei the issues are:1. Has she exceeded the 3 consecutive months or 20% of the regular meetings in acalendar year?a. She has not attended a meeting in person since mid-July 2024!b. Many of the City Council meetings are “special” meetings because the dates andtimes have changed. Has she exceeded the 20% of REGULAR meetings?2. The requirement that it be “accessible to the public” does not mean the public ofTaipei! It means the public of Cupertino. NOTE: This slide was from the October 16-18, 2024 2024 League of California CitiesConference and Exposition. It was sent to me buy someone outside the City of Cupertino.
I can see one mistake but over and over is a bit much when it is obvious that City AttorneyJensen is and was aware of the rules. Sincerely,Peggy Griffin
OFFICE OF THE CITY ATTORNEY
10300 TORRE AVENUE • CUPERTINO, CA 95014
TELEPHONE: (408) 777-3403 • FAX: (408) 777-3401
TO: Pamela Wu, City Manager
Kirsten Squarcia, City Clerk
FROM: Chris Jensen, City Attorney
DATE: March 22, 2023
SUBJECT: Brown Act Changes and Remote Meeting Requirements
The City Council, commissioners, and other members of City legislative bodies subject to
the Brown Act have been informed that authorization for remote meetings under AB 361
expired on February 28, 2023, when the Governor’s declared State of Emergency expired.
Members of legislative bodies must now attend meetings in person or comply with the
narrow exceptions authorized under state law. The Brown Act does not limit remote
participation by members of the public or City staff. Exceptions that allow for remote
participation by legislative body members are outlined below.
1.Brown Act “Classic” Teleconference Rules
The Brown Act continues to allow members of local legislative bodies to participate
remotely in public meetings consistent with its teleconference requirements.
Government Code section 54953 authorizes members to participate at remote
locations during teleconferenced meetings so long as the legislative body: (1) posts
meeting agendas at all teleconference locations; (2) identifies all teleconference
locations in the notice and agenda; and (3) makes each teleconference location
accessible to the public. A quorum of the legislative body must be present in person.
2.AB 2449 – New Limited Remote Participation Exception
AB 2449 allows an individual member, under specific limited circumstances, to
participate in a Brown Act meeting remotely without identifying their remote
Brown Act Changes and Remote Meeting Requirements
March 22, 2023
Page 2
teleconference location and without making their remote teleconference location
accessible to the public.
In order for an individual member to participate remotely under AB 2449, at least a
quorum of the legislative body must be participating from a singular physical location
that is clearly identified on the agenda and open to the public. The remotely participating
member must use a two-way audiovisual platform (e.g., Zoom), and the public must be
provided with either a similar two-way audiovisual platform or a phone-in option
coupled with a live webcasting of the meeting.
An individual member may not participate in meetings remotely under AB 2449 for more
than three consecutive months or 20% of the legislative body’s regular meetings within a
calendar year. If the legislative body regularly meets fewer than 10 times a year, an
individual member may not participate remotely using the AB 2449 exception for more
than two meetings.
In order to use the AB 2449 remote participation exemption, an individual member of a
legislative body must notify the full membership of the body that either “just cause” or
“emergency circumstances” exist for their remote participation.
Just Cause
“Just cause” is defined as any one of the following:
• Childcare or caregiving of a child, parent, grandparent, grandchild, sibling,
spouse, or domestic partner that requires a member to participate remotely.
• A contagious illness that prevents a member from attending in person.
• A need related to a physical or mental disability.
• Travel while on business of the legislative body or another state or local agency.
In order to participate remotely for “just cause,” an individual member must notify the
legislative body at the earliest possible opportunity—up to the start of a meeting—of their
need to participate remotely and provide a general description of the circumstances
related to one of the four items above. A member may only use the “just cause” provision
up to two meetings per calendar year.
Brown Act Changes and Remote Meeting Requirements
March 22, 2023
Page 3
Emergency Circumstances
An “emergency circumstance” is defined as a physical or family medical emergency that
prevents a member of a legislative body from attending in person.
In order to participate remotely under “emergency circumstances,” the individual
member must request that the full legislative body allow them to participate in the
meeting remotely because of emergency circumstances, and the legislative body must
take action to approve the request at the public meeting. An individual member making
a request to participate remotely due to “emergency circumstances” must provide a
general description of the circumstances giving rise to the need to appear remotely. This
description does not have to be more than 20 words and should not include any personal
medical information. The legislative body then votes, as the first order of business at the
relevant meeting, to approve or deny the member’s request to participate remotely due
to “emergency circumstances.”
Additional Requirements
The following general requirements apply when meeting under the AB 2449 just cause or
emergency circumstances provisions:
•Members participating remotely must do so through audio and visual technology.
•The legislative body must provide a way for the public to remotely hear, visually
observe, and remotely address the legislative body throughout the meeting in
question.
•The agenda must identify and include an opportunity for the public to attend and
directly address the legislative body both remotely and in person at the meeting.
•If there is a disruption to the meeting broadcast or in the ability to take call-in or
internet-based public comment, no further action can be taken on agenda items
until the issue is resolved.
•The legislative body must implement a procedure for receiving and resolving
requests for reasonable accommodations for individuals with disabilities and must
give notice of these procedures.
•Members participating remotely must publicly disclose at the meeting whether
any other individuals 18 years of age or older are present in the room of the
Brown Act Changes and Remote Meeting Requirements
March 22, 2023
Page 4
member’s remote location and state the general relationship between the
individual and the member.
1.Remote locations are connected to the main meeting location
by telephone, video, or both;
2.Quorum of the members participate from locations within
jurisdiction;
3.Full address of each teleconference location is identified in the
notice and agenda of the meeting;
4.Agendas are posted at all teleconference locations within
required timelines;
5.Each teleconference location is accessible to the public and
has technology to enable the public to participate from that
location; and
6.All votes are taken by roll call.
General, Longstanding Requirements for Teleconferencing
by Legislative Body Members
20Office of the County Counsel
1
Peggy Griffin
From:Griffin <griffin@compuserve.com>
Sent:Monday, June 24, 2024 6:24 AM
To:Christopher Jensen; City Attorney's Office
Subject:Fwd: 2024-06-12 Planning Commission Meeting - Mistry participating remotely via Brown Act
FYI…
Peggy
Begin forwarded message:
From: Peggy Griffin <griffin@compuserve.com>
Date: June 13, 2024 at 10:40:04 AM PDT
To: MichaelW@cupertino.gov
Subject: 2024-06-12 Planning Commission Meeting - Mistry participating remotely via Brown Act
Hi Assistant City Attorney Woo,
Thank you for taking the time to stop on your way out to explain to me the Brown Act condition that Planning Commissioner
Mistry was using to participate in the meeting remotely. I really appreciate you doing that
Yesterday, I did go back and re-read that section of the Brown Act (Govt. code section 54953(b)(2). Note that (3) also applies.)
After reading this section of the code, I strongly feel there were several Brown Act violations.
I have some significant concerns I hope you can explain:
1. The teleconference location posted in the Planning Commission agenda was so general it was not clear where the
“meeting” was being held.
1. Using Google Maps, it brings up the Sonoma Grill Restaurant that was closed when the Planning Commission
meeting started. This means the public had NO ACCESS to the building.
2. Using Apple Maps, it shows 2 possible buildings, the Sonoma Grill Restaurant and the Holiday Inn Long Island. If
it was the hotel, where in the hotel that was publicly accessible?
3. It appears from the video that Commissioner Mistry was participating from a room that was not publicly
accessible, probably his hotel room. Since the agenda didn’t say who was participating remotely, the public
would not have had a clue whose room to locate!
2. If the intended location was the Holiday Inn Long Island Hotel, then the exact location in this large hotel would need to
have been specified.
1. It appears it was a private room.
2. No public access.
3. Public did not know which commissioner was there to even ask for the room!
3. According to Govt. code section 54953(b)(3), the agenda was to be posted at the ocation.
1. Q: Where is there proof this was done, especially when the building was closed or it was a hotel room nobody
knew about?
4. The time posted in the agenda says 6:45 pm which is implied to be PDT but it does not state that nor does it state the
time of the publicly accessible east coast location was 9:45 EDT.
As our society becomes more and more global, I understand the need to use this provision occasionally BUT when it is used, I
want it done correctly and the law not abused. I appreciate any clarification you can provide
2
Thank you again for your help.
Sincerely,
Peggy Griffin
REFERENCE #1 – Planning Commission 6-11-2024 Agenda
Top of Planning Commission Agenda for the 6-11-2024 Meeting
REFERENCE #2 – Information on location posted from Google Maps
Google Maps Location: shows only the Sonoma Grill Restaurant!
Sonoma Grill Hours: Tuesday 3-9 PM East Coast time (CLOSED at 6:45PM PDT when PC meeting started)
3
The linked image cannot be displayed. The file may have been mov ed, renamed, or deleted.
Verify that
the link
points to the
correct file
and location. Apple Maps 2 Location: 1730 N Ocean Ave. Holtsville, NY 11742 is the address of
-Sonoma Grill AND the
-Holiday Inn Long Island.
4
REFERENCE #3 – Brown Act Section being used
Govt. Code Section 54953
From:Peggy Griffin
To:Sheila Mohan; J.R. Fruen; Hung Wei; Kitty Moore; Liang Chao
Cc:City Clerk
Subject:2024-11-18 City Council Meeting-CLOSED SESSION ITEM 2-City Attorney Evaluation
Date:Friday, November 15, 2024 3:45:15 PM
Attachments:2024-09-13 EMAIL from Jensen-inappropriate response from CA.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
PLEASE INCLUDE THIS EMAIL AND ANY ATTACHMENTS AS PART OF WRITTEN
COMMUNICATIONS FOR THE ABOVE MEETING AGENDA ITEM.
Dear City Council,
I am forwarding an email response I received from City Attorney Jensen on 9-13-2024 in
response to my concern that the remote teleconferencing location that was required to be
open to the public also be accessible to the disabled. His response was completely
inappropriate and needs to be addressed. I am not the only person he has responded to in this
way!
Please address his anger management issues, particularly towards women. I have not heard
of him responding inappropriately towards men.
Sincerely,
Peggy Griffin
P.S. I have also attached a PDF of his email response highlighting his response.
From: Christopher Jensen <ChristopherJ@cupertino.org>
Sent: Friday, September 13, 2024 10:08 AM
To: Griffin <griffin@compuserve.com>
Cc: Pamela Wu <PamelaW@cupertino.gov>; Sheila Mohan <SMohan@cupertino.gov>; Kirsten
Squarcia <KirstenS@cupertino.gov>
Subject: RE: 2024-09-17 City Council Meeting - Issues/questions with teleconferencing
Dear Ms. Griffin:
The City Attorney’s Office does not provide legal advice to member of the public or respond to
biased, ignorant, and inaccurate commentary. It is of course your right to say whatever you
want, but I won’t engage with serial liars.
Regards,
Chris
Christopher Jensen
City Attorney
City Attorney's Office
ChristopherJ@cupertino.gov
(408)777-3105
From: Griffin <griffin@compuserve.com>
Sent: Friday, September 13, 2024 10:00 AM
To: Christopher Jensen <ChristopherJ@cupertino.org>; Pamela Wu <PamelaW@cupertino.gov>;
Sheila Mohan <SMohan@cupertino.gov>; Kirsten Squarcia <KirstenS@cupertino.gov>
Subject: Re: 2024-09-17 City Council Meeting - Issues/questions with teleconferencing
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
One more question…
Q5: ADA requirements…Is the remote location ADA compliant? Is that a requirement?
Peggy
On Sep 13, 2024, at 9:55 AM, Griffin <griffin@compuserve.com> wrote:
Dear City Attorney Jensen, City Manager Wu, Mayor Mohan and City Clerk Squarcia,
I am glad the city has finally decided to follow the Brown Act regarding teleconferencing
pursuant to government code 54953(b)(2) after having violated it 3 times.
QUESTIONS
Q1: What provisions will you have in place to prevent members of the public from
talking to or accessing the remote council member during the meeting?
Q2: What provisions will you have in place to allow the public to ask to speak and speak
from the remote location?
Q3: Where will the agenda be posted at the remote location?
Q4: Will there be seating and access to a bathroom for those attending the remote
location?
Q5: The resulting video that is posted as “public record” needs to include the remote
location video and audio. Is the city’s tech crew prepared to do this?
Sincerely,
Peggy Griffin
1
Peggy Griffin
From:Christopher Jensen <ChristopherJ@cupertino.org>
Sent:Friday, September 13, 2024 10:08 AM
To:Griffin
Cc:Pamela Wu; Sheila Mohan; Kirsten Squarcia
Subject:RE: 2024-09-17 City Council Meeting - Issues/questions with teleconferencing
Follow Up Flag:Follow up
Flag Status:Flagged
Dear Ms. Griffin:
The City Attorney’s Office does not provide legal advice to member of the public or respond to biased, ignorant, and inaccurate
commentary. It is of course your right to say whatever you want, but I won’t engage with serial liars.
Regards,
Chris
Christopher Jensen
City Attorney
City Attorney's Office
ChristopherJ@cupertino.gov
(408)777-3105
From: Griffin <griffin@compuserve.com>
Sent: Friday, September 13, 2024 10:00 AM
To: Christopher Jensen <ChristopherJ@cupertino.org>; Pamela Wu <PamelaW@cupertino.gov>; Sheila Mohan
<SMohan@cupertino.gov>; Kirsten Squarcia <KirstenS@cupertino.gov>
Subject: Re: 2024-09-17 City Council Meeting - Issues/questions with teleconferencing
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and
know the content is safe.
One more question…
Q5: ADA requirements…Is the remote location ADA compliant? Is that a requirement?
Peggy
On Sep 13, 2024, at 9:55 AM, Griffin <griffin@compuserve.com> wrote:
2
Dear City Attorney Jensen, City Manager Wu, Mayor Mohan and City Clerk Squarcia,
I am glad the city has finally decided to follow the Brown Act regarding teleconferencing pursuant to government
code 54953(b)(2) after having violated it 3 times.
QUESTIONS
Q1: What provisions will you have in place to prevent members of the public from talking to or accessing the remote
council member during the meeting?
Q2: What provisions will you have in place to allow the public to ask to speak and speak from the remote location?
Q3: Where will the agenda be posted at the remote location?
Q4: Will there be seating and access to a bathroom for those attending the remote location?
Q5: The resulting video that is posted as “public record” needs to include the remote location video and audio. Is the
city’s tech crew prepared to do this?
Sincerely,
Peggy Griffin
From:Lisa Warren
To:City Clerk; City Council
Cc:City Council
Subject:Written Communication for November 18, 2024 Closed Session items 1 and 2 Employee Performance Evaluations
CM and CA
Date:Monday, November 18, 2024 2:57:40 PM
Attachments:JR Fruen Letter to CC May 11, 2018 - City Attorney"s Duty - city"s Mission Statement.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Mayor Mohan, Vice Mayor Fruen and Councilmembers Chao, Moore and
Wei.
I have written and/or spoken about City Manager and City Attorney
'performance' in, I believe, the last three closed meetings on the subject.
I had hoped for improvement, but it seems that things are getting worse,
or at least more well known. I have recently spoken to several community
members who have shared bad, to horrible, experiences as they tried to
engage with Sr. Staff. This is not a good trend at all.
I continue to see erosion in transparency from City Manager Wu, and I
have made statements to that effect in public meetings. Some of this
'behavior' is supported by the current council majority, which is also a
significant disappointment.
I personally chose not to communicate directly with emails to CM Wu
because the 'answers' were not helpful. I did try again after several
months of opting not to, and again I felt that it was not a good use of
time. No real answers and, I felt, dismissive replies. I wish that it were
not so.
I am forwarding a previous email (from over a year ago) that touches on
my own concerns, as well as other members of the public. I have read
some emails, and heard multiple residents discuss and report poor
judgement on behalf of city attorney Jensen. Things do not appear to
have improved related to the way that Mr. Jensen communicates with
residents, and seem to be getting worse. Something needs to be done,
and the public should be made aware of efforts to take this seriously.
There is an increasing amount of money being spent on 'consultants' such
as David Sykes and the contracts indicate that 'coaching' is for multiple
staff members.
Have any of these consultants been made aware of the discontent of city
residents ? If not, why not ?
While I understand that these two positions are not 'easy'. That should in
no way create a culture that allows for 'misuse of power' or unacceptable
treatment related to people who the positions are meant to serve.
----- Forwarded Message -----
From: Lisa Warren <la-warren@att.net>
To: cityclerk@cupertino.org <cityclerk@cupertino.org>; City Council <citycouncil@cupertino.org>
Sent: Monday, October 30, 2023 at 04:39:50 PM PDT
Subject: Written Communication for Oct 30, 2023 Closed Session item #1
To: City Council
Re: Item #1 of Oct 30, 2023 Closed Session Performance Evaluation City
Attorney
I have attached a letter submitted by JR Fruen, Resident, to city council
members on May 11, 2018.
The subject of the message was the performance of a previous city
attorney
I have would like to draw attention to the initial comments quoted below in
bold.
The letter was submitted under the Public Employee Performance
Evaluation: City Attorney, (Randolph Hom)
I do hope that Mr. Fruen, and others, see why this is relevant.
I have concerns related to the way that CA Jensen's actions have altered
in the last several months and don't believe they have not supported the
city's mission statement. I hope that Mr. Jensen can get back on the right
path for our residents, who any city attorney is expected to serve.
" The heart of an attorney's duty of loyalty is his protection and
furtherance of this client's interests. For any client, those
interests range beyond shielding against legal exposure. In the
case of this city, they include community cohesion and vitality as
memorialized in the city's mission statement 'to provide
exceptional service, encourage all members of the community to
support one another, and support the values of education,
innovation and collaboration'. "
There is a later comment that suggests an additional concern :
"I can not recall encountering the city attorney at public events."
--- Lisa Warren
From:Rhoda Fry
To:City Clerk; City Council
Subject:City Council 11/18/2024 Agenda item #2 City Attorney
Date:Monday, November 18, 2024 2:23:46 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear City Council,
Regarding the City Attorney performance evaluation, in my opinion, Mr. Jensen is a
disappointment.
Mr. Jensen has been extraordinarily rude to current and former councilmembers.
He also failed to make a substantive correction to the grand jury report that vilified
councilmember Moore.
Specifically, the report stated that Moore had asked an employee to see receipts from credit
card expenses when in fact she had appropriately followed protocol and asked the City
Manager for the information.
That information was willingly provided by the City Manager.
But he let the defamatory statements remain and that is wrong.
Mr. Jensen has been rude to city council members and to staff.
I am also disappointed that he has not followed through with the misallocation of BMR funds
to pay for the YIMBY lawsuit and potentially other expenses.
Additionally, he refused to provide the actual costs of the YIMBY lawsuit which should be
public information because it is public funds.
Most recently, Mr. Jensen allowed misogynistic comments toward female council members to
go unchecked. Specifically, councilmember Fruen had used the expression “pearl clutching,”
to describe the legitimate concerns of fellow councilmembers. He should have done something
and been an upstander, but he was not.
He seems like he hates his job and hates certain members of the council and the public. That is
not okay.
Please also consider previous emails that I have sent on this topic as they still stand.
Sincerely,
Rhoda Fry, 40+ year resident of Cupertino