Fact Finding Report - 05.01.2023Confidential Fact Finding Report Subject of Attorney-Client and/or
The Attorney Work Product Privileges ·
Confidential Fact Finding Report
Review of Outstanding Issues and Concerns
Raised by the Findings and Recommendations of
the 2022 Santa Clara Civil Grand Jury Report, A
House Divided: Cupertino City Council and City
Staff, Published on December 19, 2022
Prepared by: Linda L. Daube, Esq.
Submitted: May 1, 2023
THIS REPORT SHALL ONLY BE PUBLICLY DISCLOSED ON CONDITION
THAT THE CITY COUNCIL OF THE CITY OF CUPERTINO WAIVES THE
ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY WORK PRODUCT
I. Procedural History and Overview of the Allegations: Basis for
Additional Review
The Undersigned was retained on February 14, 2023 to independently
review some of the findings set ,forth in the 2022 Santa Clara County Civil
Grand Jury Report, "A House Divided: Cupertino City Council and City Staff',
dated December 19, 2022 (hereinafter referred to as "Report). Specifically,
the scope of my review included reviewing past and on-going
communications among City of Cupertino ("City") staff, City Councilmembers ,
and City Commission members. The scope of the assignment was the result
of City Council direction to staff during its February 7, 2023 City Council
meeting regarding the City's proposed response to the Report's Finding No.
4, Recommendation 4b, that provided:
"The City should reinstate enforcement procedures to enable the City
Council and the public to file complaints and testify at public hearings to
help remediate ethics violations. This revision should include a
procedure for public admonishment, revocation of special privileges, or
censure. This recommendation should be implemented by March 31,
2023." [Report,@ p. 16].
In a subsequent City Council meeting on February 21, 2023,
Councilmember Fruen moved that the following language be added to the
City's response to Recommendation 4(b) of the Report: " ... the City Council
has directed the City Attorney to investigate and report back to Council
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regarding other potential violations of the Municipal Code arising out of
Council-staff or commission-staff relations. The intent of the Report is to
allow Council opportunities to correct past Municipal code violations and
prevent future violations." [emphasis added]. Councilmember Fruen's motion
was approved by the City Council. This Investigator initiated the review at the
direction of the City Attorney.
What was relevant to determining the scope of the review as well as
determining the appropriate individuals to be contacted was the discussion
among Councilmembers during the February 7 and the February 21, 2023
City Council meetings. During these meetings both Councilmember Moore
and Councilmember Chao raised concerns about the investigative review
process of the Santa Clara County Civil Grand Jury, and Councilmember
Moore pointed to a significant inaccuracy in the December 19, 2022 report
regarding the description of her (Moore's) purported contact with a
subordinate staff member regarding a City employee's charges incurred on -a
City issued credit card.1 [Refer to p. 8 of the Report].
Councilmember Chao raised issues that the Civil Grand Jury process
was flawed and there was no opportunity to cross-examine complainants.
Chao stated that she had been contacted and had been interviewed by the
Civil Grand Jury and had offered emails and documents to them, but the Civil
Grand Jury ignored her (Chao's) explanations and offer to provide additional
documentation. Chao also contended that she was not admonished to tell the
truth as is done in any court proceeding and could only conclude that other
interviewees had likewise not been admonished. During the February 21 st
meeting, Chao expressed concerns that there was no accountability for
statements made by those interviewed by the Civil Grand Jury. Accordingly,
both Moore and Chao were contacted during this investigation to provide an
opportunity to more fully respond to the Findings or Recommendations set
forth in the Report.
As will be more fully discussed under Section II, Investigative
Methodology, individuals to be interviewed were initially selected based upon
whether that individual had been specifically or by reference involved in the
incidents discussed in the Report.
Overview of the Civil Grand Jury Findings and Recommendations
On December 19 , 2022, the Santa Clara County Civil Grand Jury
issued its findings in a report entitled, "A House Divided: Cupertino City
Council and City Staff'. The report was the result of the Civil Grand Jury
During the February 7, 2023 meeting, City Attorney Jensen publicly reported that in
responding to the Civil Grand Jury Report, the response would not include a response to all
purported inaccurate factual statements ; however, Jensen stated that the description of
Councilmember Moore's requests for information regarding staff credit card usage was inco rre ct.
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receiving multiple complaints concerning the conduct of City Councilmembers
toward City management and staff. According to the Report, the Civil Grand
Jury reviewed the following allegations that: 1) Councilmembers interfered in
the day-to-day operations of the City; 2) Councilmembers routinely berated
and belittled presentations made by City staff during City Council meetings;
and, 3) certain Councilmembers gave direct work assignments to City
employees, thwarting the requirements of the Council-Manager form of
government set forth under the City's Municipal Code.
The Report resulted in four (4) Findings, three (3) of which directly
related to the scope of this review:
• Finding 1 -The City has a culture of distrust between the
Councilmembers and City staff that is creating dysfunction;
• Finding 2 -The dysfunction prevalent between the City Council and
City staff has negatively impacted City operations, including the
continuing loss of skilled and experienced personnel. The City has a
reputation of having a difficult work environment, making recruiting of
highly qualified applicants difficult; and,
• Finding 4 -A comprehensive Code of Ethics not only provides
guidance and baseline standards for ethical behavior, it includes
sanctions and consequences for deviations from the stand. The City's
Ethics Policy is generic and lacks enforcement provisions and
therefore fails to provide a framework to address ramifications for
policy violations. [Civil Grand Jury Report@ pp . 15-16 .]
Moreover, the Report included references to complaints that had been
brought forth during the course of its investigation including, without limitation,
the following:
1. Existence of Councilmember distrust of City staff and staff fear of
retaliation from Councilmembers [Report@ p. 3];
2. City Councilmembers behaving inappropriately toward the City
Manager and staff, including routine disrespect and the inclination to
doubt the accuracy of the City's staff work [Report @ p. 3];
3. Evidence of high turnover in key management and leadership positions
within City government resulting in the loss of employees with
significant capabilities and experience [Report @_p. 3];
4. Some Councilmembers' requests have been voluminous or "come on
the heels of the Councilmember's specific dissatisfaction with a staff
report on a certain subject and, thus, appears punitive as opposed to a
genuine information request" [Report @ p. 7];
5. High staff and management turnover has reduced the operating
efficiency of the City's government [Report @ p. 3];
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6 . High staff turnover was not supported by the contention that the
turnover was the result of retirements and staff seeking better, higher
paying positions [Report @ p. 12];
7. The "abnormally" high turnover rate among City staff, including key
staff positions, is the result of the belief of City staff that their work is
unappreciated and devalued by Councilmembers [Report@ p. 12];
8. The abnormally high turnover rate of management and executive
management staff has negatively impacted the City's reputation and, in
turn, has led to its inability to attract qualified people for some key staff
and managements positions [Report @ p. 12];
9. Councilmember requests for information is often perceived by City staff
as "councilmanic interference" and the time to respond to requests
could be interpreted as inappropriately interfering with department
workloads, staff decisions, schedules, and/or department priorities
[Report @ p. 7];
10. In some instances, when City Councilmembers believed they did not
receive requested information, the individual Councilmember filed a
Public Records Request ("PRA") pursuant to California Government
Code § 6250 et seq., which generally is an option available to
members of the public and is not typically used by City
Councilmembers [Report @ p. 7];
11. It may be frustrating to Councilmembers who request additional staff
information to not receive such information as Councilmembers are
charged with governing and must be informed to make important
decisions about the direction of the City [Report @ p. 7].
As will be more fully discussed in Section IV, Allegations and Factual
Findings, of this Fact-Finding Report, based upon the consistent and
unequivocal statements provided by current and former City executive and
management staff interviewed and the numerous email communications
between Councilmembers, Commissioners. and staff, there was substantial
evidence to support and sustain all of these factual findings .
While many of the Civil Grand Jury's findings were described in
somewhat "conclusory" terms, e.g., "existence of distrust and fear", "berated",
"councilmanic",2 the Report clearly highlighted seve ra l government
operational issues that warranted further review given the direction of the City
Council at its February 21, 2023 meeting. Accordingly, the focus of my
review was to ascertain facts that either supported in full or in part and/or did
not support the ultimate findings/recommendations of the Report.
2 As will be more fully discussed below, interviewees were asked what these "conclusions"
referenced in the Report meant to them and what factual examples reflected, supported, and/or
did not support these conclusions. Specific examples of interviewee responses will be more fully
discussed below.
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My evaluation takes into account the undisputed fact that the City's
turnover rate in key executive management positions is significant with the
employment of four City Managers since 2019. Moreover, as cited in the
Report, over 50% of Planning Division staff and 60% of the City's senior
management staff have left the City since January 2022.
It is also significant that after the publication of the Report, on February
3, 2023, the City Council engaged in a comprehensive City Council
Governance Workshop with the purpose of: 1) strengthening the
effectiveness of the City Council as a governing body; 2) clarifying roles within
the governance and administrative structure of the City; and 3) establishing
agreement on norms for working together with each other and with staff on
behalf of the Cupertino community.
Further, at a regular Council meeting on February 7 , 2023 , by majority
vote, the City Council adopted Resolution No. 23-021, Cupertino City Council
Procedures Manual (hereinafter referred to as "Manual"). The Manual
included guidelines for communication with City staff, Councilmember access
to information and requests for information, decorum and civility in interacting
with City staff and with other Councilmembers, and the conduct of
deliberations/debates during City Council meetings. The Manual also
incorporates applicable sections of the Municipal Code and, in essence,
provides administrative guidelines to comply with and implement certain
provisions of the Municipal Code. Moreover, and consistent with the issues
raised by the Civil Grand Jury regarding the lack of enforcement procedures
of the City's Code of Ethics policy, the Manual provides that "[t)he City
Council may enforce repeated or serious violations of the rules set forth in the
Manual through a censure action placed on a Council agenda."
As part of the scope of this review, interviewees were asked whether
they felt that the February 3rd works hop as well as the adoption of the Manual
has had any significant impact on improving the alleged improper conduct of
Councilmembers. The overall consensus of the staff interviewed was that
while there had been a short "grace" period following the workshop and the
adoption of the Manual where Councilmembers appeared to act
professionally; however, starting at the end of February 2023, at least two
Councilmembers, Councilmember Moore and Chao, have re-engaged in
extensive email requests for information that have significantly interfered with
the overall operations and productivity of management staff and the
respective City departments. Moreover, some of the more recent emails from
Councilmembers Moore and Chao following the February 7, 2023 adoption of
the Manual have been perceived by City staff members as accusatory,
disrespectful, and condescending.
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Scope of Review
Based upon the above, the scope of this review was to:
1. Determine whether there is additional factual evidence to further
support the Civil Grand Jury Findings regarding possible violations of
the City of Cupertino's Municipal Code and/or whether there are any
additional factual findings that may support violations of one or more of
the Municipal Code provisions following the December 2022 issuance
of the Report;
2. Determine whether there are facts and documentary evidence
that may support possible violations of the Manual, adopted on
February 7, 2023;
3. Develop policy recommendations to potentially mitigate any
further violations of the Municipal Code and/or the Manual; and,
4. Develop policy considerations in updating the City's Code of
Ethics using the 2018 Policy as a starting point.
While the purpose of this review is to evaluate the past and current
conduct of Councilmembers, the findings may also serve as guidelines to
improve City Council/City Staff relationships moving forward.
II. Investigative Methodology
To begin my review, I received approximately 1,500 email documents
that had been lodged. The emails and documents covered approximately a
two year period, from 2021 to the present. Primarily, the documents consisted
of emails between Councilmembers and staff, in particular, the former and
current City Managers and department heads.
On or about March 9, 2023, I received from the City Attorney a list of
past and current executive and management City staff who might be possible
witnesses to various incidents involving current and former
Councilmembers/Mayors and City Commission members. Prior to receiving
the list of possible witnesses, I reviewed and summarized the most relevant
email documents and also viewed various video segments of four previous
City Council meetings. Further, I reviewed the Report, the Manual, applicable
sections of the City's Municipal Code, City Resolution 18-115, Adopting the
City of Cupertino Code of Ethics and Conduct for Elected and Appointed
Officials, and, City Resolution No. 20-011, Adopting the City of Cupertino
Ethics Policy, that had been referred to in the Report. 3
3 As part of its commitment and response to the Report, the City Council will be considering
revisions to the current Ethics Policy, using the prior policy adopted by the Council in 2018.
Such review will be incorporated in the City's FY 2023-2025 Work Plan. (City's Response to
The Civil Grand Jury's Recommendation No. 4a].
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The above-referenced three "Findings" and the eleven factual
complaints set forth by the Civil Grand Jury in its Report (pp.3-4 above)
served as the foundational allegations that, if proven to be supported by
substantial evidence, may support violations of one or more applicable
provisions of the City's Municipal Code as well as the newly adopted Council
Procedures Manual4 . In summary, the findings and the factual complaints set
forth in the Report formed the basis for developing questions for interviews
and the further review of videos of selected City Counc·il meetings and
Logikcull email communications.
Legal Framework for Review
The gravamen of the issues reviewed by the Civil Grand Jury and by
this Investigator emanate from the basic structure of the City of Cupertino's
government, which, is clearly defined under the City's Municipal Code as a
Council/City Manager form of government.5 The preamble to Chapter 2.17
City Council/City Staff Relationships of the Municipal Code provides the
blueprint for establishing the City of Cupertino's Council/City Manager form of
government and sets forth in pertinent part:
"After the City of Cupertino's incorporation, the City Council enacted
Ordinance No. 1-06 creating and establishing the Council/City Manager form
of government whereby the City Council controls the administrative services
of the City only through the City Manager. The Council/Manager form of
government is intended to provide the best of unencumbered support of
professional/technical staff's input balanced with the collective oversight of
elected officials. . .. Neither the City Council, nor individual Council members,
can give orders to any subordinates of the City Manager .... The City
Manager takes his or her orders and instructions from the City Council only
when given at a duly held meeting of the City Council. No individual council
member can give any orders or instructions to the City Manager." [emphasis
added.]
4 The guidelines provided in the newly adopted Manual were used only to review actions
occurring after its adoption by the City Council on February 21 , 2023 .
5 The City Council/City Manager form of government, while common throughout California,
is not the only model as there are several California cities that are "charter'' cities . Moreover,
even those municipalities having a Council/City Manager form of government also have
municipal code ordinances, council procedures, and Code of Ethics policies that are unique
to that particular agency. The procedures of how City business is, and has been, conducted
in the City of Cupertino is strictly dependent on Cupertino's laws and administrative rules set
forth under its Municipal Code and therefore, comparisons to other municipalities having
different underlying governance structures. municipal code provisions, and/or administrative
pollcles may be irre levant. The conduct of Councilmembers and City staff is strictly governed
by the applicable duly enacted municipal code provisions and administrative rules and
procedures.
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As cited by the Civil Grand Jury in its Report,§§ 2.17.020, 2.17.032,
and § 2.17.034 of the Municipal Code provide specific laws regarding the
conduct of City business and interactions with the City Manager. The two (2)
areas that are pertinent to this investigation include the following:
1) The City Council (as an entire body) retains full power to accept,
reject, amend, or otherwise guide and direct staff actions, decisions,
recommendations, workloads and schedules, department priorities,
and the conduct of city business through the City Manager; this power
cannot be delegated to individual Council members, nor to committees
composed of council members consisting of less than a quorum. [§
2.17.031]. While nothing in the City's Municipal Code precludes
individual Council members requesting information, in accordance with
§ 2.17.034, the City Manager retains discretion in how, and whether,
the requested information will be provided to all Council members, if at
all. Further, individual Councilmember requests to the City Manager for
information are further limited by the criteria and authority provided to
the city Manager provided under§ 2.17.043 (cited below). Consistent
with this Municipal Code section, the City Manager retains the sole
authority to determine whether the individual request for information
and assistance would adversely impact City staff's work priorities and
available resources.
2) § 2.17.032 and § 2.17.042 specifically preclude individual
Councilmembers from attempting to influence staff decisions,
recommendations, workloads, and schedules and department priorities
without prior knowledge and approval by the entire City Council.
Likewise, City staff may only be guided by City management and/or the
City Council as a whole. Under § 2.12.042, City staff may be
disciplined for violating this Municipal Code provision and may report
attempts by individual Councilmembers to unduly influence or pressure
staff into making, changing or otherwise suppressing staff decisions or
recommendations, or changing departmental work schedules and
priorities.
As referenced above, one of the provisions of the City's Municipal
Code that had not been referenced by the Report was § 2.17.043, Timely
Responses, which provides in pertinent part that the City Manager has sole
discretion to determine whether a Councilmember's request for information
would require such significant allocation of staff time as to alter other work
priorities and, if so, such an individual request should be directed to staff
through a collective direction of the entire City Council. § 2.17 .043 further
provides guideline by which the City Manager can exercise this discretion: 1)
Is the request specific and limited in scope so that staff can respond without
altering other priorities and with only minimal delay to other assignments; 2)
2) Is the request a "one time" work requirement, as opposed to an on-going
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work requirement?; and 3) Does the response to a request require a
significant allocation of staff resources (generally defined as consisting of
more than one staff person, or a single staff person working on the request in
excess of two hours? Based upon the scope of this review, § 2.17.043 was
also incorporated in reviewing the Councilmember/staff relations and
communication.
In the event that a Councilmember's conduct is determined to have
possibly violated applicable provisions of the City's Municipal Code as
referenced above, such violation(s) may be a misdemeanor subject to
criminal prosecution. [§1.12.010 of the Cupertino Municipal Code].
City Council Procedures Manual, Resolution 23-021
In reviewing Councilmember-staff relationships following the adoption
of Resolution 23-021 Cupertino City Council Procedures Manual, provisions
of the Manual were incorporated as guidelines. While the Manual essentially
incorporates several of the above-mentioned Municipal Code sections,
Section 6.5 Decorum, highlights civility requirements that all Councilmembers
and City staff shall treat each other with dignity, courtesy, and respect.
Further, § 6.5 provides that Councilmembers should avoid personal attacks
on City staff and shall refrain from publicly criticizing the general abilities,
character, or motivations of any staff members and should share any such
concerns privately with the City Manager or City Attorney.
§ 6.6 of the Manual Councilmember Access to Information provides
that "no Councilmember shall circumvent the City's Manager's direction
regarding a request for information by seeking information through a Public
Records Act request."
Finally, the Manual is consistent with the Civil Grand Jury's concerns
that the City's Ethics Policy [Recommendation 4a, p.16 of the Report]
provided no enforcement provisions, the Manual sets forth enforcement rules
in Section 1 0: "The City Council may enforce repeated or serious violations
of the rules set forth in this Manual through a censure action placed on the
Council agenda."6 [Manual@ p. 14].
6 Censure is a disciplinary procedure naming a particular member of the legislative body as an
offender. It does not "diminish" a Councilmember's rights but may limit or preclude certain
conduct that has been determined, by a majority of the legislative body, to constitute violations of
applicable rules and policies. Censure has been protected as an appropriate remedy under the
First Amendment and under California Anti-SLAPP statutes.
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Evaluation of the Outstanding Issues
In evaluating the allegations, the following criteria will be incorporated
as part of the final report:
1. Not Sustained: The investigation failed to disclose
sufficient evidence to support the alleged conduct beyond
a preponderance of evidence.
2. Inconclusive: The investigation uncovered conflicting
evidence of relatively equal weight as to whether the
alleged conduct did or did not occur.
3. Sustained: The investigation disclosed that there is
substantial evidence that the act or omission occurred as
alleged beyond a preponderance of evidence .
Sixteen (16) current and former executive and management staff
members have been interviewed. Following the initial staff interviews, Mayor
Wei, Councilmember Moore, and Councilmember Chao were also
interviewed. Former Mayor Darcy Paul was invited to participate in an
interview, but due to his scheduling conflicts, was unable to do so prior to the
completion of this Fact-Finding Report . A copy of Paul's email response that
had been sent to tne City Attorney, City Manager, and all Councilmembers
has been included as part of this Fact-Finding Report.
To maintain the integrity of the fact finding, I asked each of the sixteen
(16) interviewees to identify other possible witnesses/complainants, if any.
Further, I asked each staff member interviewed to provide to me any
emails/documents that they believed would support their statements and/or
were relevant to the scope of my review. I did receive numerous documents
from the interviewees, some of which had been provided by the City
Attorney's Office and some of which had not been included.
Some of the witnesses suggested names of individuals, both current
and former City employees, who should be interviewed. Finally, each staff
member interviewed was admonished to : 1) answer my questions truthfully;
2) provide any and all information that he/she believed would be relevant to
the scope of my review; 3) refrain from talking to anyone about my questions
to them and their answers to me; and, 4) if they answered the questions, I
would assume that they understood the question and, if they did not, they had
my permission to let me know. I also informed them that if they felt that they
were treated adversely or retaliated against because someone suspected that
they had participated in this review, they should contact the City Attorney as
the City had an absolute prohibition against retaliation for participating in an
investigation. Following the interviews of the current and former City staff
members, I reviewed email documentation provided to me and viewed the
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videos of specific City Council meetings concerning agenda items that had
been referenced by the staff members during their interviews.
Finally, during the course of my interviews, I discovered that there had
been at least five (5) "informal" complaints anct one (1) formal complaint filed
with the Human Resources Department ("HR") in accordance with the City's
Administrative Rules and Regulations of the Personnel Code, Section 3
Prohibition Against Harassment, Discrimination & Retaliation. Most of these
complaints had been lodged prior to January 2023; however, several of the
other interviewees stated that they had not notified HR about their complaints
regarding interactions with current and former Councilmembers and
Commissioners for fear of retaliation.
With respect to the five (5) "informal" complaints that had been lodged
with HR, the individuals interviewed told me that they had initially been
reluctant to file a formal complaint as they were fearful of retaliation as the
alleged misconduct involved former and current Councilmembers and
Commissioners. The five (5) complainants told this Investigator that they were
concerned that if the Councilmember or Commissioner became aware of their
complaint, these individuals would have created such a hostile and intolerable
work environment that the employees would feel forced to leave City
employment. Even though these staff members had decided to file an
informal complaint, they did not want any formal investigation but merely
wanted to let HR know what had happened in case there were further
incidents. All of the complaints were based upon bullying and harassment
where the staff member felt that the "subjects" of their complaint were
interfering with the scope of their work duties and that of their respective City
departments. It did not appear that the allegations were based upon a
"protected classification"; however, the alleged conduct, if supported by
substantial evidence, may violate applicable provisions of the Municipal Code
and Section 3 of the City 's Administrative Regulations, particularly with
respect to § 3.3 No Retaliation 7•
The City has a strict "confidentiality" provision under its Administrative
Regulations regarding anti-harassment and retaliation which provides in
pertinent part that: "The City recognizes that confidentiality is important to all
parties involved in an investigation and it will not disclose a completed
investigation report, except as it deems necessary to support a disciplinary
action, to take remedial action, to defend itself in adversarial proceedings, or
to comply with the law or a court action." A separate review of the complaints
lodged only with HR Department and those d isclosed to this Investigator
7 § 3.3 provides in pertinent part that a retaliatory "adverse conduct" includes: taking sides
because an individual has reported harassment or discrimination; spreading rumors about a
complaint; shunning or avoiding an individual who reports harassment or discrimination; or real or
implied threats of intimidation to prevent an individual from reporting harassment or
discrimination.
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during the course of the staff interviews has yet to be fully concluded, and the
names of the current and former City staff interviewed shall remain
confidentia I.
Ill. Witness Credibility
Credibility of the interviewees was based on the following : 1) factual
consistency of the individual's statement with that of statements of other
witnesses and/or documents produced; 2) ability of the person interviewed to
specifically articulate examples of his/her generic comments; 3) whether the
interviewee had personally observed certain incidents that they relayed to the
Investigator; and 4) whether there were potential biases based upon his/her
employment history with the City, i.e., whether the staff member was
concerned about the stability of his/her employment or the damage to their
professional reputation should they be totally candid with this Investigator. In
reviewing the credibility of the interviewees' statements, all current and former
staff interviewees were admonished by this Investigator at the beginning of
each interview to answer all questions truthfully and provide all relevant
information, to which all interviewees responded that they would do so.
This Investigator found the staff interviewees forthcoming and candid.
More importa ntly , there was consistency in the statements that each had
made regarding his/her experience in working with former and current
Councilmembers and Commissioners. With respect to Mayor Wei,
Councilmember Moore, and Councilmember Chao, this Investigator found all
three forthcoming in expressing concerns and goals for enabling the City
Council to more effectively work together and to improve working
relationships between the City Council and the City Manager and staff.
Councilmember Moore did state that in making decisions, she often requires
more information than perhaps other Councilmembers may need and that she
is frequently frustrated with getting the information needed. 8 Likewise ,
Counciln;iember Chao told this Investigator that she needs sufficient
information to make sure that staff has reviewed all alternatives/options
before making a recommendation to the City Council. Further, Chao told this
Investigator that she also needs information verifying that City staff has made
sure that any agenda item brought before the City Council has procedurally
complied with any required approvals, i.e., any required approvals by the
appropriate City Commissions. Finally, Chao told this Investigator that she
needs information to assure that the proposed action complies with applicable
City codes and regulations.
8 Moore's comment is consistent with the Civil Grand Jury's observation that "it may be
frustrating to Councilmembers who request additional staff information as Councilmembers
are charged with governing and must be informed to make important decisions about the
directions of the City"; however, voluminous requests for information may appear "punitive"
by City staff and the time to respond to such requests diverts staff resources from priority
project work. [Report @ p. 7).
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During her interview, Chao also questioned the validity of the current
and former City staff statements regarding the reasons for the City's
significantly high staff turnover that included the dysfunctional work
environment due to conduct of former Councilmembers and Commissioners.
Chao continued to insist that the turnover was due to retirements and that the
departing staff was leaving for better positions and higher paying positions.
Further, Chao stated from her perspective, some of City staff who had left had
had performance problems and personally realized that they couldn't be
successful.
IV. Discussion of Allegations and Factual Findings
One of the witnesses best expressed the general consensus of the
current staff (and some former staff members) by stating, "The Civil Grand
Jury Report is the tip of the iceberg and only reflects half of what has
happened ." Overall, following the February 3rd workshop and the adoption of
the Manual, some of the interviewees felt that "things" would get better;
however, all current staff interviewed agreed that since February, there has
been a gradual decline in civility and growing distrust of staff's professional
capabilities, especially demonstrated by Councilmembers Moore and Chao.
The factual evidence collected as a result of this review has been
divided among the three (3) Findings that served as the basis for the further
fact finding. As stated above, the factual support for these findings as
referenced in Section I, Procedural History and Overview of the Allegations:
Basis for Additional Review, were used as a basis for developing interview
questions for the sixteen (16) current and former executive and management
staff. Based upon the interviewees ' statements and the numerous email
communica tions reviewed, all of the eleven (11) factual compla ints cited by
the Civil Grand Jury in its December 19, 2022 Report are supported by
substantial evidence and are Sustained.
The additional factual determinations obtained as a result of this
review include the following and further Sustain the Civil Grand Jury findings:
Civil Grand Jury Finding 1: The City has a culture of distrust
between the Councilmembers and City staff that is creating dysfunction.
1. Staff believes that there continues to be "distrust" from at least
two Councilmembers, Councilmembers Moore and Chao, and
such distrust has been reflected in the continuous challenges
by these two Councilmembers through voluminous email
requests for additional and duplicative information regarding the
staff's recommendations for Council actions. Both
Councilmembers Moore and Chao told this Investigator that
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t hey did have some "trust" issues with current City sta ff. As
refe rred to above, Councilmember's Moore distrust is pri marily
based upon the City's embezzlement issue that had been
discovered in 2017 and upon some of the financial and audit
issues that had been raised by the Civil Grand Jury Report .
Chao told this Investigator that her lack of trust was based upon
the fact that she had uncovered several incidents where staff
members had made "mistakes " and/or had relied upon incorrect
information. According to Chao, when she has pointed out
these mistakes to staff, the staff member does not admit that
he/she was wrong. Chao stated that she cannot trust staff if
they are not willing to admit that they have made a mistake.
Chao even went so far as to suggest that the public has trust
issues with staff. Both Moore and Chao told this Investigator
that they frequently and independently research the projects
that are matters subject to City Council agenda matters
because they don't trust staffs recommendations as they don't
feel that they are provided adequate information to evaluate the
recommendation.
2. Staff uniformly stated that the purported "distrust" is reflected in
the continuing blaming staff for Council decisions that have
been criticized by members of the public. As an example,
some of the email exchanges reflected that when a Council
decision, made collectively at a regular or special meeting, has
been challenged by a constituent, the Councilmember's excuse
for supporting (or not supporting) that decision was that "staff
did not provide sufficient information" to properly evaluate the
proposed recommendation. In such cases, the Councilmember
then emailed the City Manager for additional information on the
matter that had already been considered and voted on by the
entire Council.
3. Four of the interviewees told me that the tone of the email
communications from two of the Councilmembers was
threatening, accusatory, and somewhat coercive in that they
believe that if they don't appropriately respond, they will
continue to be "badgered". One interviewee told me that she
had reviewed some of the emails between Councilmembers
and City staff and that, "literally, she has cried over the
tone/texture of such emails ." This interviewee "loved" working
for the City and was disheartened that Councilmembers would
"attack" City management staff.
4. In addition to the distrust, there was substantial evidence, both
in emails and videos of Council meetings, that Councilmember
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Moore has responded to City staff in a discourteous and
disrespectful manner. Both Moore and Chao have made public
comments that have been perceived by staff members as
criticizing their work product to the extent that some staff
members are fearful of even making a recommendation for
Council action.
5. The abusive and controlling behavior of former Mayor, Darcy
Paul, and former Planning Commissioner Wang, is
substantiated in email communications between these two
individuals and City staff. For example, as reported by four of
the interviewees, at a public event, Mayor Paul publicly stated
something to the effect that, "I guess I should say thank you to
staff but they always want to make it all about them." Further,
the email communications reflect that Paul would berate staff,
dictate procedures, direct hiring and firing decisions, and
intermittently make comments in front of staff, "remember who
you work for." Uniformly, the interviewees stated that Paul's
conduct and staff relationships were a significant factor in
creating a dysfunctional work environment. In fact, two
interviewees told this Investigator that they only stayed with the
City because they knew that Paul's term was ending. These
statements and conduct are pending further review.
6. The majority of the current and former staff interviewed told this
Investigator that the dysfunction was the result of
Councilmembers Moore and Chao not understanding their roles
in carrying out their council duties. In accordance with
applicable provisions of the Municipal Code, Councilmembers
make decisions collectively during a scheduled meeting and
must seek information solely through the City Manager. The
email exchanges reviewed . by this Investigator reveal that
Councilmember Moore has repeatedly failed to appear for 1 : 1
meetings with the City Manager but instead has engaged in
sending voluminous emails to the City Manager with copies of
the emails to other staff members and, in some cases, has sent
emails directly to staff members, thereby bypassing the City
Manager.9 Councilmember Moore told this Investigator that she
perceived her Councilmember role to double check staff's work
by actually conducting her own independent research and staff
work, particularly with respect to performing audits and
producing financial reports. This perception may be fueled in
9 It appears, however, that since January 2023, both Councilmember Moore and Chao are
now directing their information requests to the City Manager rather than directly to the
subordinate staff. This observation was based on a review of email communications from
2022 through the present.
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Moore's stated distrust of the City's financial reports is based
primarily on the 2017 discovery of the embezzlement. In a
recent exchange regarding Councilmember Moore's research
regarding lawsuits and City contracts, Councilmember Moore
described her role as a Councilmember as not being a "silent
observer" and that it was necessary to her job to "analyze and
critique." Councilmember Chao told this Investigator that she
believes her job as a Councilmember is not to "rubber stamp"
staff's recommendations. Like Councilmember Moore,
Councilmember Chao independently investigates matters and
projects that will be placed on City Council agendas and, many
times, she believes that, based upon her independent research,
staff has made errors in their analysis and has relied upon
incorrect information. However, Councilmembers Moore and
Chao's duties as councilpersons are, in accordance with the
Municipal Code, separate and distinct from the performing of
independent work as a City auditor, planner, housing specialist,
or financial consultant, especially without approval by the entire
City Council.
Both Councilmembers Moore and Chao told this Investigator
that they often contact other agencies, both cities and counties,
to find out what that agency is doing or how that agency is
handling the particular project. How other agencies are
addressing certain issues or projects may or may not be
relevant to how the City of Cupertino is addressing its project
goals and objectives as the City of Cupertino is unique from
other agencies. Moreover, both Councilmembers Moore and
Chao appear to assume that City staff is not to be trusted and it
is their job to double-check · staff work product. While
Councilmembers Moore and Chao want to assure that the staff
recommendations presented to the entire City Council are
based upon credible staff review, independently researching
staff agenda items is perhaps not the more effective way to
accomplish their need for information and assurances that the
staff reports and recommendations have included a review of
alternative options and are based upon valid information. If
there are questions about staff reports and recommendations,
those questions should, in accordance with the Municipal Code,
be directed to the City Manager. The City Manager, in turn can
either address those issues and/or, if additional information is
needed, direct the question/concern to the staff member so that
when the staff report is published as part of the City Council
agenda, Councilmembers Moore and Chao can be assured that
their concerns have been reviewed and considered as part of
any staff recommendation. As will be discussed more fully
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discussed below, the voluminous email requests based upon
Councilmembers Moore and Chao's independent research of
particular agenda items require significant staff time and
resources to respond.
Civil Grand Jury Finding 2: The dysfunction prevalent between
the City Council and City staff has negatively impacted City operations,
including the continuing loss of skilled and experienced personnel. The
City has a reputation of having a difficult work environment, making
recruiting of highly qualified applicants difficult.
7. Collectively, the current and former management staff
interviewed told me that they felt devalued, demeaned, and
significantly frustrated by two of the Councilmembers in that
there appeared to be no way that they could ever produce
satisfactory work. Two of the interviewees told me they were
actively looking for other employment. Many interviewees told
this Investigator that staff members who had left City
employment told them that they were leaving primarily because
of how badly they had been treated and bullied by City
Councilmembers.10 Both former and current staff concurred
that the City's work environment was "toxic" and stressful.
8. One interviewee told me that it is almost impossible to get
project work accomplished because of the number of staff
hours required to respond to Councilmember information
requests in addition to preparing staff reports and back-up
materials for all of the regular and continued meetings. Another
interviewee shared that most recently, once staff provides an
answer to a Councilmember's request, it seems like, "any
answer is never good enough for them." According to the
interviewees, the additional work is "exhausting" and
significantly diverts staff resources from work priorities and
"undermines the ability of City staff to effectively serve the
citizens of Cupertino." The significant staff turnover has
exacerbated the problem of insufficient staff to handle
increasing Councilmember demands.
9. There is substantial evidence to support the Civil Grand Jury's
conclusion that the high turnover rate was not based on staff
retirements and/or staff seeking better, higher paying positions.
All interviewees told me that they really like their jobs and tried
to do their best, but nothing they did appeared to be
satisfactory to former Mayor Paul and Councilmembers Moore
10 While the interviewee statement could be considered "hearsay", the observations were
consistent with the personal statements of current and former City staff members.
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and Chao. More importantly, the workload due to the
inordinate number of Councilmembers' information requests is
overwhelming and almost impossible to accommodate given
the current staff resources. Both current and former staff
members felt that the additional workload in responding to the
emails as well as that additional work due to staffing shortages
was overwhelming. As to the compensation package for City
employees, based upon a comparison to several other
agencies, Cupertino's compensation package is competitive,
and it is unlikely that the management staff exodus is the result
of the City's compensation package . It is significant that the
last two (2) City Managers voluntarily resigned with no
severance package. Further, at least one management
employee left for a lower position with another agency because
of the treatment by former Mayor Paul and Councilmembers.
Email Communication Issues Contributing to the Overall
Ineffectiveness of and Interference With
Effective City Operations
Collectively, current and former staff members told this
Investigator that the excessive number of emails from Councilmembers
Moore and Chao was indeed intimidating and adversely impacted
department operations and workloads. In reviewing the email
exchanges, a continuing pattern of emails of Councilmembers Moore
and Chao are the on-going requests for information that is considered
"old business" of what previous City Councils had reviewed and
decided. Further, there were misstatements of facts based upon both
Councilmembers "independent research" of certain Council agenda
items. To some extent, it appeared that Councilmembers Moore and
Chao have determined that their roles and functions as
Councilmembers are best performed by "governance through email
exchange". Specific examples are included below .
10. In reviewing the number of emails from City Council members
to the City Manager in recent months (since January 2023), the
average number of emails per week is 50-70 initial emails, not
counting any follow-up emails which sometimes was five
additional emails per initial email. Over fifty percent (50%) of
these weekly emails were initiated by Councilmembers Moore
and Chao and this average did not include the follow-up emails
sent in response to the initial email. Depending upon the topic,
up to 20-30 pages of email exchanges were generated as a
result of an initial email. Three (3) interviewees told me that
they didn't think that Councilmember Moore and Chao really
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understood how long it takes staff to read through significantly
long emails and then respond .
11. The two Councilmembers' email requests for staff "information"
were, and have been, perceived by the majority of staff
interviewed as "subtle attempts" to influence staff priorities and
recommendations. At issue is whether the Councilmembers'
continued requests for information is for information only or is
intended to interfere with departmental and City operations or
for some other reason. In some cases, these requests for staff
assistance with independent research or other questions
appear motivated by individual policy preferences not adopted
by the full Council. For example, there is evidence that
Councilmember requests for information have been repeated
and, in one case, a staff member provided the same
information to the same Councilmember on at least three
occasions. Moreover, there is evidence that the informational
requests frequently revert to "old news" such as the employee
embezzlement issue that was discovered in 2017 and/or former
decisions regarding a funding agreement with the Chamber of
Commerce. When current staff attempts to "fix" and address
some issues, Councilmembers Moore and Chao appear,
through voluminous emails, to focus on, from their perspective,
the purported egregious staff screw-up as opposed to focusing
on how to effectively correct the situation . [Note: From all of
the information collected as part of this review, the
"embezzlement" issue was effectively addressed through the
installation of a new financial management system and that a
significant portion of the embezzled funds have been repaid to
the City.] As discussed in the Civil Grand Jury's Report,
attempts by an individual Councilmember to direct staff work or
influence staff priorities outside of a noticed meeting is a
violation of Municipal Code Chapter 2.17. In the herein matter,
instances where Councilmembers have attempted to direct staff
work in service of a personal policy agenda not adopted by the
full City Council is likewise concerning.
Civil Grand Jury Finding 4: A comprehensive Code of Ethics not
only provides guidance and baseline standards for ethical behavior, it
includes sanctions and consequences for deviations from the stand.
The City's Ethics Policy is generic and lacks enforcement provisions for
policy violations.
To date, one of the most significant City Council responses to the
Report's Recommendation, Finding 4, has been the recent adoption of the
Manual that addresses many of the deficiencies identified by the Civil Grand
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Jury regarding the current Ethics Policy. While acknowledging that the City
Council has committed to revising the Ethics Policy using the 2018 Policy as
a starting point, the recently adopted Manual addresses civility,
Councilmember debate, and respect standards and, consistent with the Civil
Grand Jury's Recommendation No. 4, provides remedies, i.e., censorship,
where there are violations. In my professional opinion, based upon over thirty
years as a public lawyer, both serving as in-house attorney in the City of Long
Beach, City Attorney's office, and, thereafter, as a contract City Attorney and
special counsel to numerous public agencies throughout California, the
Manual more than adequately addresses the Report's concerns regarding the
City's Ethics Policy and serves as an effective oversight tool until such time
as a final policy for both Councilmembers and appointed Commissioners can
be developed and approved. That being said, a revision of the current ethics
policy using the Code of Ethics and Conduct for Elected and Appointed
Officials Policy, Resolution No. 18-115 is the recommended starting point,
especially for appointed officials.
Undue Influence on Hiring Decisions
On page 12 of the Report, the Civil Grand Jury mentions that,
"Interviews with current and former City managers confirmed that some City
Councilmembers inserted themselves in the process of recruiting and hiring
for open positions with the City." If this factual finding is supported by
substantial evidence, there may be violations of the above mentioned
Municipal Code provisions regarding attempts to pressure staff and engage in
conduct reflecting undue influence on staff decisions, as well as Municipal
Code § 2.28.040(0) that authorizes the City Manager to "appoint, discipline
and dismiss any and all officers and employees of the City except those
elected by the electors of the City .... " (See also Municipal Code CMC §
2.52.1 OO(A) [City Manager has responsibility "[t]o appoint persons to and
remove persons from positions subject to the provisions of [the Personnel
Code].")
Based upon the information gathered during the course of this
investigation, there was substantial evidence to Sustain the Civil Grand
Jury's finding that there had been attempts by former Mayor Paul. City
Councilmembers and Commissioners to direct the hiring and firing of City
staff. However, after January 1. 2023, there are insufficient facts to support a
finding that current Councilmembers have attempted to direct and/or pressure
City staff hiring and/or firing decisions.
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V. Conclusions & Recommendations
For the foregoing reasons, this Investigator finds that based upon the
interviews and the documents reviewed as part of this Fact-Finding Report, the
Civil Grand Jury Findings No. 1 and No. 2 were supported by substantial factual
evidence and that the distrust of City staff by Councilmembers Moore and Chao
has continued since the publication of the Report in December 2022 resulting in:
1) excessive and duplicative email requests for information; 2) independent
"investigations" of agenda matters without City Manager and/or Council
knowledge or authority; 3) communication with staff in emails and/or public
meetings in an accusatory, discourteous and disrespectful manner; 4) an
adverse impact to staffing workloads, work schedules and priorities; and, 5) the
overall low morale of key management staff that may result in increased staff
turnover adversely impacting the City's ability to accomplish its goals and
priorities for the benefit of City of Cupertino residents and businesses. Based
upon these findings, there may be violations of the applicable and above
referenced Municipal Code provisions and the standards set forth in Resolution
No. 23-021 Cupertino City Council Procedures Manua/.11 What is most
significant from this review is the consistency of the statements of the sixteen
former and current executive and management staff employees regarding current
and former Mayors, City Councilmembers, and Commissioners. The statements
provided to this Investigator were unequivocal about their descriptions of and
experience with the City of Cupertino's work environment.
Recommendations
Based upon the above review, the Undersigned recommends the following
alternatives in order to facilitate more effective City Council/City staff
relationships and enhance the City Council's ability to accomplish its goals in
order to best serve City residents and businesses:
1) Current City staff needs to be supported (and trusted) in carrying
out their respective duties and, more importantly, current staff needs to
feel that they are valued in providing professional services to the City.
Councilmembers do have an obligation to make informed decisions;
however, voluminous email exchanges regarding requests for information
may be less efficient than bringing those concerns to the City Manager
through the scheduled 1: 1 meetings. In the 1: 1 meetings, the City
Manager may be able to address the question directly and, if not, refer the
question to the appropriate staff member. In a nutshell, while it is true that
11 As to the remedy for violations of the Municipal Code and/or the Manual, the City Council has
the ultimate authority based upon the factual findings to determine appropriate action that may
include 1) censure; 2) referral to the District Attorney; 3) referral to the Grand Jury; and/or 4)
remove the Councilmember from certain committees and/or serving as chairperson to certain
committees.
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in accordance with the Municipal Code, all Councilmember's requests for
information are to be directed to the City Manager, voluminous emails are
rarely the most efficient way to address both Councilmembers' Moore and
Chao's requests for information, and the sheer volume of email has
adversely impacted departmental operations. The 1: 1 meetings between
the City Manager and individual Councilmembers is, and traditionally has
been in California public agencies, the most efficient way to respond to a
Councilmember's inqumes and such meetings should facilitate
communication and trust between the Councilmember and the City
Manager.
2) The adverse and contentious relationships between and among
former and current Councilmembers and former and current City staff
members have contributed to staff turnover in the City of Cupertino. The
impact of these contentious working relationships has been a significant
staff turnover adversely impacting the overall effectiveness and efficiency
of City operations. Generally, it will take a new City Manager and/or
senior level staff member at least 6 -12 months to become fully versed in
the past history of council decisions on specific projects and to become
fully acclimated with the capabilities and accomplishments of subordinate
staff. Turnover in executive and management staff in any organization is
costly in loss of staff productivity, training costs, and loss of institutional
knowledge. If Councilmembers, including Councilmembers Moore and
Chao, distrust or question current City staff members' abilities to carry out
the responsibilities of their position, then those concerns and the reasons
therefore must be communicated to the City Manager so that these
concerns may be addressed. The City Council as a whole is responsible
for evaluating the City Manager's performance if it feels that such
concerns are not being addressed.
3) The City Council should rely on the advice of and give weight to the
recommendations of executive management staff and other professionals
in considering items that come before the City Council, particularly when
those items require technical expertise or specialized knowledge or
experience .. Otherwise, the City of Cupertino will be burdened in making
timely decisi ons essential to providing the infrastructure and services
necessary to best serve Cupertino re sidents and businesses. This is not
to say that Councilmembers should simply "rubber-stamp" all staff
recommendations; however, the voluminous email requests for
information and independent investigations appear to be a
counterproductive and time consuming process. Councilmember Chao did
inform this Investigator that City Manager Wu should inform her if she had
received comments from staff regarding her (Chao's) requests and/or if
staff felt that Chao had engaged in conduct that the staff member
perceived as accusatory or condescending manner.
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4) The City Council's approval of the City's "Work Plan" is an excellent
way to implement Council's goals and work projects and allows
Department Heads to focus resources and to determine appropriate
staffing needs and/or whether outside consultant resources are needed to
meet Council goals/objectives.
5) The 2018 Ethics Code should be used as a basis for developing
revisions to a new City Code of Ethics policy, especially in developing a
Code of Ethics for City appointed positions. As referenced above, the
newly adopted Manual addresses many of the Code of Ethics issues cited
by the Civil Grand Jury in its Report; however, a new Ethics Code using
the 2018 Ethics Code provides an effective starting point for
Commissioners Handbook.
6) If not already conducted, the City Attorney and City Clerk should
consider providing Councilmember training on Rosenberg's Rules of
Order.
7) The City Manager should explore ways to resolve Councilmember
Moore and Chao's need for information given limited staff and
departmental resources. In accordance with applicable Municipal Code
provisions, 1: 1 meetings between the City Manager and Councilmember
Moore and Chao could be used to address the need for information
without appearing to direct or influence staff priorities.
Finally and most importantly , effective city governance is recognizing that
there will be problems beyond anyone's control and when those situations
appear, the priority should be addressing the solution, not focusing on or blaming
staff for what happened. Trust in City management staff is an essential
component of effective municipal governance.
Respectfully Submitted :
Linda L. Daube, Attorney
LAW OFFICE OF LINDA L. DAUBE
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