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CC 02-07-2023 Item No. 17 Consider approval of 2022 Cival Grand Jury Report Written CommunicationsCC 02-07-2023 Item No. 17 Consider approval of response to 2022 Civil Grand Jury of Santa Clara Report Written Communications From:Peggy Griffin To:Christopher Jensen; City Council Cc:City Clerk Subject:2023-02-07 CC Item17 - Response to Grand Jury Report - A House Divided Date:Tuesday, February 7, 2023 3:15:59 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. Please include this email as part of the Written Communication for Agenda Item #17 Response to the Civil Grand Jury Report entitled “A House Divided”. Dear City Attorney Jensen, City Manager Wu and City Council, Thank you for your Draft Response to the Grand Jury Report “A House Divided”. I particularly would like to point out and thank you for pointing out that specific instances may (your words) /are (my words) inaccurate. (See paragraphs below.) People being accused should be given an opportunity to see the proof and be given an opportunity to counter the attack with proof of their own yet everything is anonymous. Bottomline, you, as a City, must respond to their Findings/Recommendations regardless of the words in their report. Thank you. Sincerely, Peggy Griffin STAFF REPORT Page 3, last paragraph ATTACHMENT B – Draft Response to Grand Jury – House Divided From:Peggy Griffin To:Christopher Jensen; City Council Cc:City Clerk Subject:2023-02-07 CC Item17 - Response to Grand Jury Report - A House Divided QUESTIONS Date:Tuesday, February 7, 2023 3:40:29 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. Please include this email as part of the Written Communication for Agenda Item #17. Dear City Attorney Jensen, City Manager Wu and City Council, I have a few questions regarding your proposed Draft Response: PAGE 3, Finding 3 – improving City’s financial risk profile, Response, last bullet Q1: Did the City present the 9th policy to the internal auditor Moss Adams, for review by January 31, 2023? Paragraph after last bullet “…City is “in compliance with financial reporting requirements” Q2: How does the public know this? The Treasurer’s Reports are no longer going to be presented to the Council. They are sent by Council Memo that the public has no access to without doing a Public Records Request. It is not clear when the report is written versus when it actually is sent to Council. It’s supposed to be monthly. If Audit Committee is reviewing it, they only meet every other month so it is no longer a monthly review of this report. They’ll be reviewing 2 months at a time. Sincerely, Peggy Griffin From:Kitty Moore To:City Clerk Subject:Written Communication for Agenda Item 17 Date:Tuesday, February 7, 2023 4:08:38 PM Attachments:Councilmember Moore GJ.pdf Dear City Clerk, Please add the attached for item 17. Kitty Moore Kitty Moore​ Councilmember City Council Kmoore@cupertino.org (408) 777-1389 COUNCILMEMBER MOORE, REPRESENTING MYSELF ONLY, RESPONSE TO THE FINDINGS OF THE 2022 SANTA CLARA COUNTY CIVIL GRAND JURY REPORT, “A HOUSE DIVIDED: CUPERTINO CITY COUNCIL AND CITY STAFF” The City of Cupertino’s response letter to the Grand Jury Report “A House Divided” did not correct the findings error on page 8 of that report. The Grand Jury did not inform me of the allegation in the report for a response, which one would expect in a proper investigation. While I do appreciate the immense time that the citizen volunteers willingly donate to the Grand Jury, it’s very important that they, and the City Staff providing information, get it right. Paragraph 1 on page 8 states that I “…questioned a subordinate of the City Manager about charges the staff member incurred on a City credit card. The staff member presented an explanation of the charges. Councilmember Moore did not accept the explanation and requested copies of the documentation to pursue her own investigation.” This is untrue. What actually happened is that I had observed very high credit card charges on the Accounts Payable which City Council accepts by Resolution. Because credit card charges have had nothing associating the charges with what they are for, what Budget Items they relate to, just dollar amounts which reached $95,000 in one month alone, I asked about them. These charges would total $400,000 and more per year with no reporting to the public for what the City’s money was spent on or a formal audit of the charges. It should be noted that I had been concurrently serving on the Audit Committee, eventually chairing it. I had seen the City’s Credit Card policy and had spoken to friends who have company and government issued cards and was told what they were required to document for their card use, and read the San Jose P Card report “Procurement Cards: Clarification on Policies and Additional Oversight Can Improve the P-Card Program” (provided by link here: https://www.sanjoseca.gov/home/showpublisheddocument?id=39070) for insight. I brought the credit card concern up a number of times and finally with Interim City Manager Greg Larson in 2021. We had a discussion about the potential issues with lacking transparency and he asked me to request a single month to do a spot check on the receipts of, and limit the request to two card users, which I did. Later, I met again with Interim City Manager Larson, who gave me a folder which had an internal Memo written to him regarding the card uses and the supporting documentation for the charges, I never spoke to either employee the supporting documentation came from. Separately, an employee was found to have used their card for personal items and I was informed they had been let go. City Attorney Jensen has the folder I describe and can share what he deems is disclosable. The Interim City Manager had also asked me to do another spot check in the future. Given that I was handed the information in hard copy, it is very possible no other Staff members knew I had it. I hope this corrects the record adequately. Sincerely, Kitty Moore, representing myself only From:Liang Chao To:City Clerk Subject:I Got Interviewed by the Civil Grand Jury! Date:Tuesday, February 7, 2023 4:12:45 PM Please enter this into the written communication of the Feb. 7, 2923 meeting. ====== (First Draft) I Got Interviewed by the Civil Grand Jury! The Civil Grand Jury (CGJ) serves as a watchdog group to investigate public agencies and elected officials based on anonymous complaints. They summarize their investigation in a report with recommendations. The public agencies are required to respond in 90 days on whether they accept the recommendation or not. In Cupertino’s response on the “If You Only Read the Ballot, You’re Being Duped” was on the Dec. 20, 2022 Council Agenda, the City Attorney disagrees with two of the 6 recommendations and thinks another one is not applicable. It’s important to understand how the CGJ conducts its investigations in order to assess the credibility of claims made in their reports. Are they based on actual evidence or merely opinions of the interviewees? Did they fairly present all the relevant information? Did they follow the due process normally followed by the court system? The Santa Clara County CGJ consists of 19 ordinary volunteer jurors who commit 25 hours a week at the pay of $20/day and serve for a one-year term. For the 2022 Civil Grand Jury can, among the 69 applicants, 75% is white, 12% is Asian, 1% for other categories. 60% are over the age of 65. 85% are over the age of 55. These jurors dedicate their free time to investigate and create reports, which takes considerable commitments. Anyone can file an anonymous confidential complaint form to the CGJ. The CGJ decides which complaints to investigate. The investigations are conducted in strict privacy until the report is published. The CGJ decides who they interview or what documents they read and which portions are included in the final report. They do not reveal their interviewee list, transcripts, document list or what they leave out of a report. The interviewees are not asked to swear to tell “the truth, the whole truth, and nothing but the truth.” (Thus, they are not “witnesses” as in a trial court.) The interviewees are not informed of the nature of the complaints or anything about the complaints. The interviewees have to sign a non-disclosure form to not reveal anything about the interview until a final report is made public or until authorized by the CGJ or the court to disclose. (The above portion is completely factual based on public data on the CGJ. The portion below is factual, but also includes some of my opinions on the process.) The 2022 CGJ received multiple complaints for Cupertino City Council. Likely the complainants were interviewed and they know exactly the subject and nature of the complaint. Therefore, one could make a coordinated effort to submit complaints to the CGJ so their “opinions” and “accusations” on Cupertino City Council become the content of a CGJ report. The accuser nor the CGJ has any obligation to provide evidence to prove their claims. The CGJ just makes a reasonable effort to investigate in privacy. For the accused, they do not get informed of the accusations against them so they were not given a chance to provide evidence to the contrary even though the accusations might be completely false. This is against the Sixth Amendment “Rights to be Informed of the Charges” if this were a trial court jury. For the accusers, they have a good idea of the nature and the subject of the complaints so they can share anything they choose, or frame their comments in a way, to reach their goal of indicting elected officials through CGJ. They also have complete anonymity to anything they say to CGJ. Often, the accusers make their own assumptions or interpretations about an incident, which they might believe are true, but they might reveal their unintentional false assumptions or assumed interpretation after cross examination. Since the investigations by the CGJ are conducted in complete secrecy without revealing the complaint, the interviewees nor the documents they use, the accused has no way to introduce additional interviewees or documents to provide full background of an accusation. This is against the Fifth Amendment “Rights to Due Process” if this were a trial court. Since there is cross examination as seen in the due process, a vague accusation from an interviewee without specifics on dates, the context and details of an incident would merely be an opinion or hearsay unless there is concrete evidence. One might wonder which part of an accusation made in a CGJ and their basis is any of the following: hearsay: “information received from other people that one cannot adequately substantiate” slander: “the action or crime of making a false spoken statement damaging to a person's reputation” evidence: “objects, documents, official statements, etc. that are used to prove something is true or not true,” opinion: “a view or judgment formed about something, not necessarily based on fact or knowledge.” selective facts: “The selective perception of facts that support prejudices and the blindness to facts that disprove them.” With this understanding about the CGJ process, I would like you to read the CGJ report “A House Divided” (https://www.scscourt.org/court_divisions/civil/cgj/2022/A%20House%20Divided%20- %20Cupertino%20City%20Council%20and%20City%20Staff.pdf) carefully with a truth- seeking mindset. ===== City Hall Renovation vs New City Hall The CGR Report stated: “Although the 2015 City Council allocated funds for the renovation, the monies were subsequently redirected to expand the City Library.” The above statement is false. Here are the facts: The 2015 Council never allocated nor approved any plan for renovation since they favored a brand new city hall. The 2015 Council approved the $70M Civic Center Master Plan, which includes a new City Hall and the library expansion, but they never allocated any budget for it. There is no “re-directing” of any fund since the 2015 Council or after did not pursue to allocate funds after they examined the financing options for $70M. Perhaps, some members of the public misunderstood the approval of a plan as approval of the funding. And they likely did not follow subsequent Council meetings for financing options. Here are the meeting dates July 7, 2015 - Council adopted the Civic Center Master Plan, which includes a new city hall with added space and underground garage. August 18, 2015 - Council did not approve the $5M item start architectural design. Council asked the staff to come back with financing options. November 17, 2015 - Council directed the staff to come back with a creative solution to keep the cost lower than $40M December 10, 2015 - The staff report concludes "Because we were not successful in our attempts to discover a project delivery process that could develop a $70 million estimated cost project for less than the maximum $40 million authorized by Council, we will not be bringing the project for further consideration unless so directed by City Council." It appears that the CGJ was misled by some interviewees who did not understand the city operation and did not follow the city council meeting closely. Unfortunately, the CGJ did not write to the city to seek any document to verify the claim either. ==== The CGJ stated “Certain staff regard the present City Council’s unwillingness to fund the renovation as confirmation that their health and safety concerns are not a priority.” The delay over the years (since 2015) was caused by financial concerns since the 2015 Civic Center Plan includes a brand new city hall with underground garage and the library expansion with a price tag of $70M. Cupertino will have to borrow most of the fund, while we are still paying off the previous loan for the existing Cupertino Library. The 2019 Council decided to break up the projects and did the following: Prioritize Library Expansion since the lack of programming space is an ongoing issue since Cupertino Library is the only library in the County system without its own programming room. Purchased a building one block from the City Hall (named City Hall Annex), since it’s much cheaper to purchase existing building and renovate. And this builds up real estate assets for the City. Rather than building a new city hall, the Council directed the staff to propose options to renovate the City Hall, which was on the 2021-22 Capital Improvement Plan (CIP). The Council was expecting options for renovation which we can approve by Spring 2022. But the city staff somehow proposed a plan for a new city hall and three-story garage as one of the projects in the 2022-23 CIP, which will cost $70 million alone. The Council then formed a subcommittee in 2022 to study the earthquake retrofit options for City Hall renovation. The subcommittee proposed to put the EOC (Emergency Operations Center) in the City Hall Annex, which reduces the cost of renovating the City Hall. It appears that the CGJ was misled by some interviewees who did not understand the full scope of what the Council has done over the years. If such sentiment came from the city staff, perhaps the City Manager should have communicated better with the staff to provide them complete background on Council decisions. The CGJ interviewed only a few people who have provided inaccurate information based on their own perception. Unfortunately, the CGJ did not ask for verification of statements of facts and did not expand their interviewee list to provide them a fuller picture. ==== Monthly Treasurer’s Report The CGJ Report stated “Despite the legal requirement to comply with Government Code section 41004, no City staff member was preparing and delivering a monthly treasurer’s report. When this issue was raised during an Audit Committee meeting, the rationale provided by City staff was that many of the surrounding cities do not comply with this requirement…. It took a few months for City staff to comply with the law.” This part of the report is accurate. But it neglected to mention that it was Councilmember Kitty Moore, serving also on the Audit Committee, who pointed out the legal requirement for the Monthly Treasurer’s Reports. And she had the support of the full Council to direct the staff to fix the issue. Councilmember Kitty Moore would not be able to discover irregularities such as the overuse of credit cards, the ongoing payments without contracts, if the city staff is allowed to refuse to provide information. When an information request might require significant workload, the full Council should decide after hearing the rationale from their fellow Councilmember. The CGJ Report: “Absence of the monthly treasurer’s report impaired the councilmembers’ ability to fully exercise fiscal oversight.” It’s great that the CGJ recognizes the role of the City Council to provide oversight and the importance of the accessibility to fiscal information in order to provide the oversight, on behalf of the voters who elected us. ===== Fiscal and Risk Management The CGJ Report stated: “The Civil Grand Jury learned of the existence of a 14-year embezzlement scheme by a former City staff member of almost $800,000 that purportedly occurred between 2000 and 2014. Further investigation revealed that after the discovery of the embezzlement scheme in 2014, no financial policy or procedural changes were developed and implemented by the City.” The above statement “no financial policy or procedural changes were developed and implemented by the City” is not true. Likely, no changes were made before 2018. But after 2019, since I joined the Council, there have been quite a few improvements. One important change is to separate the approval flow so the person who writes the check is not the same person who approves a check. Every year Moss Adams, the Internal Auditor, with the Audit Committee, would make recommendations on what procedures or policies to improve on. I also am anxious to see more changes of policies and procedures. However, it’s important to first assess the current process before blindly adopting changes. In the July 21, 2023 staff report on the Fiscal Policy Inventory and Gap Analysis Final Report” (Item 31), the “Next Steps” section: “Staff will develop an implementation plan to implement the report’s recommendations. The implementation plan and status reports will be available on the City’s website at cupertino.org/budget under Internal Audit. In addition, if approved as part of the FY 2022-23 internal audit work plan, Moss Adams would review the City’s formalized P&Ps and report back to the Audit Committee and City Council on the status of the P&Ps.” In Item 34 of the same July 21, 2023 meeting, the Council adopted “the FY 2022-23 Internal Audit Program” Item, The concern of CGJ seems to be led by some interviewees who do not trust the city staff in the Finance department and the Internal Audit team. It takes time to identify gaps and identify better policies and these are in fact operational issues that the City Council should put in the hands of the City Manager. ======= Staff Turnover The CGJ Report stated “The Civil Grand Jury learned of an abnormally high turnover rate among City staff, including key top staff positions. For example, half of the Planning Division and 60 percent of senior management staff have left the City since January 2022. … Documents researched and reviewed by the Civil Grand Jury provided information that did not fully support these conclusions.“ It’s unclear what documents the CGJ had access to derive information from. I have requested for any data on staffing level or turn over numbers. I’m told that the city does not have such information. Thus, likely any information available is adecdocal or isolated instances. In a City Council-City Manager form of government, the City Council relies on the City Manager to implement policies and also bring forward potential concerns to address. The Council does not and should not seek out disgruntled employees or rely on a few hearsay to paint a picture of the entire staff. However, if any Councilmember hears of any concern at all, we should find out more about the concern and cause of the concern. I would trust a City Manager, who is a professional in managing a large organization, to bring any such concern to the Council to have a discussion and find methods to improve it if staff retention is an issue. I trust that an experienced City Manager would bring the concern to the Council and propose options to address the concerns, rather than telling a third party to undermine the integrity of the organization they work for. In my 4 years on the Council, no city employee has written to the Council to express any concern and no city manager has brought up such concern. Thus, I have never requested any information on staffing levels from the City Manager. This issue of staff turnover was only brought up before the election by people with political motives. Thus, I did not find it appropriate to request information on this issue. After the CGJ Report came out, I then asked for information. The City Manager wrote there is not data available to share. I trust that the City Manager will take appropriate steps to collect data and present solutions if the concern is substantiated. I appreciate the CGJ for raising the concern. But as a City Councilmember, I trust the City Manager to inform the Council if she needs our support for any actions to support her staff. ==== Code of Ethics Now finally coming to my interview with the CGJ. On December 1, 2022, I was interviewed virtually and only two of the 19 jurors were present, but the interview was recorded. I was told that they cannot tell me the subjects of their investigation and I cannot tell anyone about the content of the interview until the report is published. I was not asked to provide any document or suggest any more witnesses to support my statements. I was asked about some “enforcement method” for the 2018 Code of Ethics (CoE) and why it was taken out of the 2021 adopted Code of Ethics. I said I have no knowledge of anyone expressing any concern about the “enforcement method” at all. I did not know what “enforcement method” they were referring to. After the interview, I looked in my documents and forwarded some evidence to them to substantiate these facts: 1. Cupertino did not have any adopted “Code of Ethics” prior to 2018. 2. The 2018-19 work program did not include any item related to “Code of Ethics”. 3. After deciding to not consolidate Library Commission and the Public Safety Commission, the 2018 Council directed the staff on July 31, 2018 to “Explore ways to improve Council/Commission communication”. 4. The agenda item on November 20, 2018 was titled “Overview of City Commissions and recommendations for improving their effectiveness and communications with the City Council", but somehow one of the 6 documents to be approved is titled “Code of Ethics and Conduct” (CoEC) 5. The staff report of November 20, 2018 Council Meeting clearly indicated the 15-page “Code of Ethics and Conduct” was newly added. There is no mention of any earlier public engagement or notification. 6. The Nov. 20, 2018 staff report stated “Commissions were very supportive of adopting a code of ethics and conduct.” But there is no record of any written comments from commissioners or commissions. 7. The 2018 CoEC broadly applied the standard normally used for quasi-judicial decisions (to comply with existing laws, such as project approvals) to legislative decisions (to make laws and policies). This is evidenced by the following two quotes from the 2018 CoEC. Item 6 under Ethics: “decision makers … will base their decisions on the facts presented at the hearing and the law”, which is supposed to apply only for quasi-judicial decisions.” Item 7 under Ethics: "Communication. ... City Officials will rely on the agenda materials and information received at the public meeting to support their decision." 8. The 2018 CoEC expanded the normal “Conflict of Interest” on financial interests to include one’s opinions or positions on policy issues. This is evidenced by this quote: Item 8 under Ethics: "Conflict of Interest. ... Consistent with the law, decision- makers will not use their official positions to influence government decisions in which they have (a) a material financial interest, (b) an organizational responsibility to or personal commitment to others that creates a conflict of interest or the appearance of one, or (c) a strong personal bias as to one party or position." (This portion below includes my opinion on the quoted items above) According to Ethics Item 6 and Item 7, City Officials appear to have to ignore public comments received through emails or at any meeting with community members. City Officials cannot use their past experiences based on reading articles or information derived from their own research on the issues. Ethics Item 8 goes beyond the state law on Conflict of Interest, which is limited to financial interest. According to such broad interpertation of Conflict of Interest, all members of the Bike and Pedestrian Commission would have to recuse themselves since they have a "strong person bias" towards some bike paths and actively advocate for it. Most Sustainability Commissioners have "personal commitment" to Clean Energy. Most Housing Commissioners have a "personal commitment" towards affordable housing. Most Parks and Recreation Commissioners have a "strong personal bias" towards all-inclusive playground to accommodate children of special needs. Should these commissioners all recuse themselves on the issues they strongly care about in order to comply with the 2018 CoEC? As the Nov. 20, 2018 staff report stated: “any violation of the code of ethics and conduct are grounds for removal as a commissioner.” Is the 2018 CoEC quoted above what you think the City of Cupertino must adopt and enforce? Is the process of adopting the 2018 CoEC the kind of “transparent” process you support? Now coming back to the CGJ report. The CGJ Reported stated: “In a City Council vote on January 15, 2019, the City Council rescinded its Code of Ethics and Conduct that had just been voted on and passed the prior November. A year later, in January 2020, the City Council adopted a new Ethics Policy. … the year-long gap during which the City had no ethics policy is a concern.” The CGJ seems to be completely ignorant of the fact that there was no Code of Ethics before Nov. 20, 2018. Perhaps, the interviewees misled them and they did not see the need to verify the information they received. I have sent multiple emails to explain the improper process the 2018 Code of Ethics was adopted with links to evidence (as outlined earlier). The CGJ seems to have completely ignored the list of evidence. I would think that the CGJ would agree that it’s inappropriate for a City Council to adopt a brand new Code of Ethics policy under an agenda titled “Overview of City Commissions and recommendations for improving their effectiveness and communications with the City Council” without a study session to take public input first. Perhaps, they were misled by the interviewees and did not have time to find evidence to verify their claims. The policy making process requires the public to engage in the normal “process” through oral or written comments at a Council Meeting or meetings with Councilmembers. Policies are never set in stone. When there are public concerns, we often bring back a policy to consider possible revisions to address the concerns. However, if certain individuals or groups never expressed any concern during the “normal policymaking process” and only expressed certain never-before-mentioned “concerns” through either lawsuit, complaints to CGJ or campaign materials, it undermines our Democratic process. I encourage everyone to get engaged in the “normal policymaking process”, rather than making policies through lawsuits or political attacks. I encourage the CGJ to ask the interviewees to show evidence that they have made good faith efforts to express their concerns with the City Council and the City Staff before taking on a complaint, especially during an election year. I encourage the CGJ to find sufficient numbers of interviewees who both support and oppose a complaint in order to get the full picture of pretty complex situation. One would not wish to see that the respected volunteer jurors of the CGJ were taken advantage of by certain well connected individuals for their political gains. Liang Chao Cupertino City Council representing only myself Liang Chao​ Council Member City Council LiangChao@cupertino.org 408-777-3192