CC 07-06-2023 Item No. 2 Performance Evaluation-City Attorney_Written CommunicaitonsCC 07-06-2023
Written Communications
Item No. 2
Public Employee
Performance Evaluation:
City Attorney
From:Peggy Griffin
To:City Council
Cc:City Clerk
Subject:2023-07-06 City Council Meeting Agenda ITEM2-City Attorney Jensen Evaluation Comments
Date:Wednesday, July 5, 2023 11:56:27 PM
Attachments:Cupertino Muni Code 2.18 City Attorney.pdf
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PLEASE INCLUDE THE FOLLOWING EMAIL AND ATTACHMENTS AS PART OF WRITTEN COMMUNICATIONS FOR THE
ABOVE CITY COUNCIL MEETING AGENDA ITEM.
Dear City Council Members,
Attached is the Cupertino Municipal Code Chapter 2.18 City Attorney for your reference. In particular, please note
these 2 sections below:
218.010 Office of the City Attorney Established
2.18.020 Function and Duties
During the last several months, please note that City Attorney Jensen has “overstepped” his bounds with regard to the
following item:
1. Hiring investigator without City Council direction: Hiring Investigator Linda Daube was done WITHOUT City
Council direction violating the above municipal code.
a. The contract with Investigator Linda Daube was signed by BOTH City Attorney Jensen and Linda Daube
on February 14, 2023 prior to any City Council direction regarding an investigation!
i. Feb. 7, 2023, City Council Agenda Item 17 “tabled the discussion” after public comment was
received and closed, until the next City Council meeting. NO mention of an investigation was
discussed!
ii. Feb. 14, 2023, City Attorney Jensen signs contract with Investigator Linda Daube.
iii. Feb. 15, 2023, Investigator Linda Daube spends 2.80 hours on the contract which was not
sanctioned by the City Council!
iv. Feb. 21, 2023, Investigator Linda Daube spends 3.50 hours on the contract which was not
sanctioned by the City Council!
v. Feb. 21, 2023, City Council Agenda Item 10, Council Member Fruen adds language #4 “And that
the City Attorney will investigate and report back on other violations of the Municipal Code
with respect to council-staff and commissioner-staff relations so that the City Council may
establish policy to correct or prevent such violations in the future.
From the recently passed “City of Cupertino City Council Procedures Manual”, Section 6 “Relationship with City Staff”,
Section 6.5 Decorum. “All Council members and City staff shall treat each other with dignity, courtesy, and respect.”
This applies to the City Attorney-City Council relationships, too. The City needs a calm, unbiased approach when
dealing with legal and procedural matters but recently this has not occurred.
City Attorney Jensen has had outbursts making snide derogatory remarks and several times making it appear as if he is
biased against the minority council members. Since December 2022, the City has been out of compliance providing
it’s financial statements (Accounts Payables, Monthly Treasurer’s Report, Monthly Treasurer’s Investment Reports) to
Council. It’s been brought up frequently by the public that the city has been in violation of state and municipal code
yet this continued for months! (Please refer to the exact violations listed at the end of this email for details.)
Instead of making sure these violations were corrected by staff, he went after Council members for municipal code
violations when the City itself and its staff were in violation of codes! This is biased, continues today and needs to
stop immediately!
City Attorney Jensen hired Investigator Linda Daube without Council direction and before Council approval. He has
also exhibited biased attitudes towards the minority elected council members who represent a large portion of
Cupertino! This needs to be stopped and corrected.
CA Jensen has helped the city in many ways but these particular missteps need to be corrected and not be repeated!
Please address this matter in his evaluation. Thank you.
Sincerely,
Peggy Griffin
ATTACHMENTS:
-Cupertino Muni Code 2.18 City Attorney.pdf
SPECIFIC CODE VIOLATIONS REFERENCED
I-Violation of Municipal Code Section 2.24.030 Monthly Reports and California Government Code Section 41004.
In the May 16, 2023 Cupertino City Council Agenda, it includes the March 2023 Monthly Treasurer’s Report (Agenda
Item #18) which is late and violates both Cupertino municipal code and California state law. This is not the first time
since December 2022. They are continually late.
Link to May 16, 2023 Cupertino City Council Agenda
https://cupertino.legistar.com/View.ashx?M=A&ID=1053215&GUID=154456CA-6159-4A41-8BAE-
5C85CDECF07E&G=74359C04-A5F0-4CB2-A97A-0032996BB90E
II-Violation of California Government Code Section 53607, Cupertino Municipal Code 2.24.050 and the Cupertino
Investment Policy
This is an excerpt from the top of the December 2022 Monthly Treasurer’s Investment Report. This is included in
every Monthly Treasurer’s Investment Report as background information.
The May 16, 2023 Cupertino City Council Agenda Item #17 “Receive the Monthly Treasurer’s Investment Report for
March and April 2023”, the March 2023 Monthly Treasurer’s Investment Report was late.
CHAPTER 2.18: CITY ATTORNEY
Section
2.18.010 Office of the City Attorney established.
2.18.020 Function and duties.
2.18.030 Council–Attorney relations.
2.18.040 Attorney-staff relations.
2.18.050 Relations between Attorney and individual members of the public.
2.18.060 Bond.
2.18.070 Acting City Attorney.
2.18.080 Agreements on employment.
2.18.090 Assistants and employees.
2.18.100 Eligibility.
2.18.110 Suspension–Removal–Resignation.
2.18.010 Office of the City Attorney Established.
A. The office of the City Attorney, as set forth in Government Code Section 36505, is established. The City Attorney shall
be appointed by the City Council wholly on the basis of his or her qualifications. The City Attorney shall hold office for and
during the pleasure of the City Council.
B. The office of the City Attorney shall consist of the City Attorney and such assistants as may be authorized by the
Council.
C. The City Attorney shall administer the office, be responsible for the successful performance of its functions, and shall
serve under the direct supervision and control of the Council as its legal advisor.
D. The Council may retain or employ other attorneys, assistants, or special counsel as may be needed to take charge of
any litigation or legal matters or to assist the City Attorney therein.
(Ord. 1673, § 1 (part), 1994)
2.18.020 Function and Duties.
The functions of the office of the City Attorney shall be to:
A. Advise the Council and all City officers in all matters pertaining to their offices;
B. Furnish legal services at all meetings of the Council, except when excused or disabled, and give advice or opinions on
the legality of all matters under consideration by the Council or by any of the boards, commissions, committees or officers;
C. Prepare and/or approve all ordinances, resolutions, agreements, contracts, and other legal instruments as shall be
required for the proper conduct of the business of the City and approve the form of all contracts, agreements, and bonds
given to the City;
D. Provide the necessary legal services required in connection with the acquisition of land or easements on behalf of the
City;
E. Subject to the general direction of the Council, prosecute and defend the City, and all boards, officers and employees
in their official capacities, all civil proceedings before judicial and quasi-judicial tribunals. The City Attorney shall not
compromise, settle or dismiss any action for or against the City without permission of the City Council. Nor shall the City
Attorney commence any civil action without the permission of the Council.
F. Prosecute all violations of City ordinance; provided, however, that the City Attorney is not required to prosecute any
misdemeanor or infraction within the City arising out of a violation of State law.
(Ord. 1673, § 1 (part), 1994)
2.18.030 Council-Attorney Relations.
Individual Councilmembers may seek and obtain legal advice from the City Attorney on any matter or matters pertaining to
the legal position of the City. Any such advice given to individual Councilmembers, however, may be repeated to the entire
Council at any regular or special Council meeting. With respect to advice to individual Councilmembers regarding potential
conflicts of interest, the City Attorney may render informal advice; provided, however, that it is understood that a
Councilmember is automatically protected from potential liability for conflict of interest only upon taking action which
conforms to a written opinion issued by the California Fair Political Practices Commission.
(Ord. 1673, § 1 (part), 1994)
2.18.040 Attorney-Staff Relations.
Periodically, but not less than once per year, the City Attorney and the City Manager will meet and confer in good faith
regarding the allocation of the City Attorney’s time among City departments. (Ord. 2033, § 1, 2008; Ord. 1673, § 1 (part),
1994)
2.18.050 Relations Between Attorney and Individual Members of the Public.
Consistent with the functions and duties of the City Attorney's office described in Section 2.18.020 of this chapter, the City
Attorney or the Assistant City Attorney may, but is not required, to meet or discuss any matter with individual members of
the public, legal counsel, or the media.
(Ord. 1673, § 1 (part), 1994)
2.18.060 Bond.
The City Attorney shall furnish a corporate surety bond to be determined and approved by the City Council, and shall be
conditioned upon the faithful performance of the duties imposed upon the City Attorney as prescribed in this chapter. Any
premium for such bond shall be a proper charge against the City.
(Ord. 1673, § 1 (part), 1994)
2.18.070 Acting City Attorney.
A. The Assistant City Attorney shall serve as City Attorney pro tempore during any temporary absence or disability of the
City Attorney.
B. In the event there is no Assistant City Attorney, the Council shall appoint a qualified attorney to act as City Attorney
pro tempore.
(Ord. 1673, § 1 (part), 1994)
2.18.080 Agreements on Employment.
The terms and conditions of employment of the City Attorney shall be established by ordinance or resolution. If the City
Attorney is a full time employee, any employment agreement between the City and the City Attorney shall contain a
provision for performance evaluations of the City Attorney to be conducted by the City Council at least once per calendar
year. If the City Attorney is an independent contractor, the City Council shall endeavor to provide periodic feedback
regarding the performance of the independent contractor. (Ord. 2040 § 1, 2009; Ord. 2033 § 2, 2008; Ord. 1673, § 1 (part),
1994)
2.18.090 Assistants and Employees.
Notwithstanding the provision of Section 2.52.100 of the Municipal Code, but subject to the other applicable provisions of
Chapter 2.52, the City Attorney shall appoint, discipline and remove all assistants, deputies, and employees under his or her
authority.
(Ord. 1673, § 1 (part), 1994)
2.18.100 Eligibility.
No person elected or appointed as a Council-person of the City shall, subsequent to taking office as Councilperson, be
eligible for appointment as City Attorney until one year has elapsed after the Councilmember has ceased to be a member of
the City Council.
(Ord. 1673, § 1 (part), 1994)
2.18.110 Suspension–Removal–Resignation.
A. The removal of the City Attorney shall be only on a majority vote of the entire City Council.
B. The City Attorney may resign from his or her position upon at least four weeks’ written notice to the City Council.
(Ord. 2096, 2012; Ord. 1673, § 1 (part), 1994)
From:Rhoda Fry
To:City Clerk; City Council; City Attorney"s Office; Cupertino City Manager"s Office
Subject:July 6, 2023 City Council Agenda #2 City Attorney Performance Evaluation
Date:Thursday, July 6, 2023 12:36:26 PM
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Dear City Council,
Please read below input regarding July 6, 2023 City Council Agenda #2 City Attorney Performance
Evaluation.
Dear City Attorney Jensen,
When you first joined the City Council, I was impressed by how well-prepared you were for City
Council meetings in anticipating questions that councilmembers or community members might
have. The previously contracted attorney was less prepared and would tell councilmembers that she
could look into items and get back to council. With you on the dais, I felt that the legal affairs of the
City were in steady capable hands. I enjoyed coming to City Council and often learned something
new from you. Following the appointment of new Mayor Wei, I no longer feel this way.
Now it looks like you hate your job. I feel bad for you. And I feel bad for our City. I want our old Chris
Jensen back. The one who I hoped would become an exemplar for City attorneys and would guide
our City until he retired. Please review meeting videos past and present and you might understand
by constructive comments.
I am deeply troubled by what I’ve seen in 2023. Your actions and demeanor have changed and are
inconsistent with my expectations for a City attorney. I expect the City attorney to have a steady
hand – to be the adult in the room, so to speak.
Personally, I was taken aback when you interrupted me multiple times during public comment. I had
my 3 minutes. Unless I was putting the City in legal jeopardy by my words it was wrong of you to
interrupt me. For some people who speak at City Council, speaking does not come easily and putting
our thoughts together can be a struggle. For many of us, English is not our native tongue. I felt not
heard and I felt disrespected. The summary of my comments in the City Council meeting minutes,
although correct, gave an incorrect impression because the context changed from the time the
meeting started to the time that the meeting ended. The minutes said that I agreed with the
recommendation on February 7. That is true. But on February 21, the recommendation had
changed. So saying that I agreed with the recommendation in the context of the February 21
meeting that concluded the action item, was incorrect. It would not have taken much to correct the
minutes to something that was an accurate representation of what happened. You shut me down
and that’s not right.
And it seems that your office is not taking direction from council. Councilmember Fruen had
recommended making POLICY changes. I think that’s a good idea. Suddenly, the staff report
suggested PUNITIVE measures, counter to the direction proposed by Council. This seems wrong to
me. All City staff should promote a positive work environment. Worse, I was disheartened to see
that you had signed a contract and engaged the services of an investigator before the City Council
provided any direction to do so.
As you know, I was disappointed by your response to Grand Jury report. The report had given an
example where a councilmember had allegedly not followed the rules and directly asked a City
employee for information instead of asking the City manager. This allegation was proven to be
untrue. The councilmember properly sought information from the City manager and the City
manager willingly provided that information. But you stated that the commentary was substantially
true. It was not. And now these defamatory comments toward a councilmember remain. And I think
that this puts our City at risk. Part of your job should be to keep the peace – and is definitely not to
stir things up.
One thing that I’d really like to see you do is to make sure that our City is in compliance. Our financial
reports need to be filed timely. We need to make sure that we have written contracts. Recently, it
became apparent that yet another contract had not been updated and the City continued to pay on
Quartec. Our previous direct-hire Randolph Hom was very concerned about not having proper
contracts among other issues. I would encourage you to read his attorney’s report for his wrongful
termination. Many of his concerns exist today.
When residents expressed concern about the City Manager taking a City-funded trip to Taiwan on
City-time and not her vacation time, you stated that you found the discussion to be embarrassing. I
think it was not your place to do so. We were concerned. The City is in a financial crisis. The out-of-
pocket expense was not significant, but through the lens of an employee, it could easily represent
5% of their annual pay. And we might be freezing salaries and taking other measures. So talking
about the money is, in my opinion, being tone-deaf to your fellow colleagues. The bigger issue is the
time away from work that was not vacation. We also have yet to hear what the City Manager did
during her non-vacation time. I was embarrassed that you were making these judgements against
the public’s legitimate concerns.
I am equally concerned that you have made judgmental comments in public about our elected City
Officials and have repeatedly interrupted them. Please hold your commentary behind closed doors.
If you must make comments, please be respectful and only do so if a councilmember is putting the
City at legal risk. Your image has become that of a frustrated referee. It is a bad look. And sometimes
you’ve been the wrong. In the past, the Chamber of Commerce financed DIRECTLY from their
organization and through their PAC political campaign contributions. This is relevant information and
you shut the discussion down. So if you must interrupt our elected councilmembers, I would urge
you to make sure you’re right.
I’m also disappointed by how the League of Women Voters lawsuit has been handled. Why negotiate
when the City has clearly won its case? Any revisions should be made independently of any court
actions.
We need you to fight for our City and our community values.
Sincerely,
Rhoda Fry
From:Anne Ezzat
To:City Clerk
Subject:Fwd: City Attorney Evaluation
Date:Thursday, July 6, 2023 3:36:04 PM
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Mayor Wei, Vice Mayor Mohan, Council Member Moore, Council Member Chao, and Council
Member Fruen,
To say that I am disappointed with the City Attorney’s recent performance would be an
understatement. While I do not expect to become Mr. Jensen’s pen pal, I do not recall him ever
responding to inquiries that I have made. A simple, “I cannot provide you information because it is
privileged,” would suffice.
Secondly, a resident asked Mr. Jensen to correct the Grand Jury Report regarding Kitty Moore that
suggested she asked for credit card information from an employee, when the Council Member had
followed procedure and asked the City Manager. Mr. Jensen replied to the resident to effect that
the claim was substantially correct so that it would not be changed. Surely, as an attorney, Mr.
Jensen must be aware of the power of words and what they convey. By not acting to amend the
Grand Jury Report, I do not believe that Mr. Jensen acted in the City’s best interest.
Thank you for your time and attention to this matter.
Best regards,
Brooke Ezzat