CC 10-30-18 Written CommunicationsFrom:
To:
Subject:
Date:
Attachments:
Dear Clerk ,
Randy Shingai
City Clerk
Fwd: Brown Act violation
Sunday, October 28, 2018 5:10:41 PM
Government-Tort-Claim.pdf
Please make sure this is in the packet for Tuesday's closed session.
Thank you ,
Randy Shingai
----------Forwarded message---------
From: Randy Shingai <randyshingai @ gmail.com>
Date : Wed, Oct 24, 2018 at 12:52 PM
Subject: Brown Act violation
To: City Attorney's Office <CityAttorney @ cupertino .org >
CC Closed Session 10/30/2018 Item No. I
Cc : City Clerk <cityclerk @ cupertino .org>, City Council <citycouncil @cupertino.org>,
<manager@cupertino.org>
Dear Acting City Attorney ,
See the attached .
City Attorney Randolph Hom claims that Councilmember Chang told him that be had votes lined up for Mr . Hom's
dismissal , should his opposition to the Vallco SB 35 Proposal continue . If this is true, it would be a Brown Act
violation .
Please investigate this matter.
Thank you ,
Randy Shingai
Total Contro l Panel
To: ci tycl e rk@cupertin o .org
From : randyshingai@gmail.com
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Government Tort Claim
Per California Government Code § 910, Randolph Hom submits the following Government
Tort Claim.
Name and post office address of the claimant
Randolph Hom
P.O. Box 2681
Castro Valley, CA 94546
Post office address to which the person presenting the claim desires notices to be sent.
Adam Zapala c/o Cotchett, Pitre & McCarthy, LLP
San Francisco Airport Office Center
840 Malcom Road
Burlingame, CA 94010
Telephone: (650) 697-6000
Email: azapala@cpmlegal.com
Date, place and other circumstances of the occurrence or transaction which gave rise to the
claim asserted.
The City of Cupertino with the participation of Barry Chang, terminated and/or engaged in
an adverse action upon Mr. Hom on May 11, 2018, because he had engaged in protected activity
-opposing practices believed to be unethical and illegal. Mr. Hom's tennination was a retaliatory
discharge in violation of the California employment laws (Gov. Code Section 12940(h) et seq. and
other applicable provisions). The City of Cupertino's conduct also violated California Labor Code
section 1102.5, and caused intentional and negligent infliction of emotional distress. Finally, the
City's conduct constituted retaliation for exercising Mr. Hom's free speech rights under the federal
and California constitutions. There may be additional causes of action that come to light as our
investigation progresses.
Mr. Hom was hired as the City Attorney on January 4, 2016. Between that date and his
ultimate tennination/adverse employment action, the City approved the renewal of Mr. Hom's
contract twice, and each time he passed perfonnance reviews with flying colors. Mr. Hom has had
a number of successes at the City, including successfully defending the City from a number of
lawsuits. The City ultimately tenninated (and/or engaged in an adverse employment action against)
-Mr. Hqm because he expressed legal opinions and opposed conduct that conflicted with the agenda--
of certain City councilmembers, including Barry Chang, to push a $3 billion plus SB35
Application by Sandhill Development for the redevelopment of the Vallco Mall ("Application").
Mr. Hom and other legal counsel affiliated with the Cupertino City Attorney's Office ("CAO") had
preliminarily concluded that the development plan was unlawful for a variety of reasons, including
but not limited to, its inconsistency with the City's General Plan.
On April 24, 2018, Mr. Hom emailed David Brandt, City Manager, and Aarti Shivastava,
· Assistant City Manager and Director of Community Development, regarding his concerns about
the Vallco project for their "immediate consideration and action."
On April 27, 2018, Mr. Hom and other legal counsel, spoke with representatives from the
City about the proposed development. They again relayed the deficiencies in Sandhill's
1
.1
Application, and again implored the City to be honest with Sandhill about them. In response, City
councilmember Barry Chang angrily sent a series of text messages to Mr. Hom, telling him not to
send anything to Sandhill or its attorneys, Morrison & Foerster ("Mofo") regarding the
Application's deficiencies . Mr. Chang told Mr. Hom to meet him at his office the next day, where
Mr. Change arrived irate. Mr Chang berated Mr. Horn about his opposition to the Sandhill project
on legal grounds.
Mr. Chang returned to Mr.Hom's office a few hours later and informed Mr. Hom that if his
whistleblowing conduct continued, he would have no choice but to put Mr. Hom up for a
performance review and that he would see to his termination. Mr. Chang explained he had already
obtained the necessary votes from two other councilmembers to terminate Mr. Hom should his
opposition continue. Chang called Mr. Hom an "obstructionist" and claimed councilmember Rod
Sinks hated him [Hom] "because he is Chinese, Mr. Sinks hates the Chinese, and never wanted
him in the City Attorney position in the first place." Finally, Mr. Chang admitted to having multiple
"off the record" meetings with the developer/attorneys at Mofo to discuss Vallco, and claimed he
and other City representatives had been meeting with them for years.
At a May 7, 2018 meeting with Mofo, Mr. Hom and other legal counsel again presented
their views to the Mofo attorneys that the development plan was non-compliant. The attorneys
from both entities agreed to discuss internally and reconvene later in the week, on Thursday, May
10, 2018. Instead , Mofo cancelled the meeting without explanation. Mr. Hom was terminated the
very next day by being placed on administrative leave.
In addition to the foregoing, Mr. Hom also opposed various Brown Act violations during
his time at the City. The Brown Act states that City councilmembers shall not, outside an
authorized meeting, "use a series of communications of any kind ... to discus, deliberate, or take
action on any item of business that is within the subject matter jurisdiction of the legislative body."
Gov. Code Section 54952.2(b)(l). Mr. Hom learned that some City councilmembers engaged in
ex parte discussions with the developer/developer's attorneys about the Sandhill Application on
miuimn:er~m oDcasions. These communications occurred during the sensitive time period between
submission of the application and the deadline upon which the City would approv e it. But more
than that, the friendly relationship between the developer/developer's attorneys and the City's
representatives/councilmembers has flourished for over a decade.
Mr. Hom learned of many more unethical/illegal discussion and meetings, between : Mr.
Brandt, Ms. Shrivastava and developer/Mofo; Mr. Chang and other councilmembers/City
representatives and developer/Mofo over many years both related to Valko and Apple 2 campus
in Cupertino (also represented by Mofo ); various upper level City staff and councilmembers and
Sandhill representatives concerning developer-friendly amendments to the City's General Plan in
December 2014. These amendments were enacted, at Sandhill's request.
Mr. Hom also actively opposed conduct that violated the Cupertino Mu.uic i~l Code
("Code"), which arms the City Attorney with the responsibii.ijt)i ro. ~p,mve all contracts. See Code
Section 2.18.020. Mr. Hom came to learn that City staff reg\!Jm-iy entered into, renewed or revised
contracts without CAO approval. As but one example, a renewed contract with Verde Design
contained an attachment regmwng ii,n!,i,llU',ance :requirements. That attachment decreased the City's
Comprehensive General Liaoili~J limits by half, from $2 million per occurrence and $4 million
aggregate, to $1 and $2 million , respectively. This agreement was not prepared or approved by the
2
CAO. Mr. Hom repeatedly vocalized his opposition to a variety of similar improprieties, and his
whistleblowing in that regard was a substantial reason for his tennination.
In reaction to Mr. Hom consistently voicing his opposition to the City's illegal or unethical
conduct as described above;\ he was terminated on May 11, 2018. Mayor Darcy Paul telephoned
Mr. Hom with news that the City Council voted 3-2 to terminate his employment. Mr. Hom was
terminated to muzzle his legal opinions to bring the City and development projects into compliance
with the law.
A general description of the indebtedness, obligation, injury, damage or loss incurred so far
as it nu\y be known at the time of nresentation of the claim.
Mr. Hom suffered substantial financial Joss and continues to suffer substantial financial
loss well in excess of $10,0.00. Mr. Hom, therefore, is not required to state an exact amount of
damages, as those damages will be proved (and provided to the City) after discovery and expert
testimony about his financial loss. The case will be an unlimited civil action.
Present Causes of Action 1
(1) Retaliatory discharge for engaging in protected activity in violation of Cal. Gov. Code §
12940(h) and other applicable provisions;
(2) Retaliatory discharge for engaging in protected activity in violation of 42 U.S.C. §2000e~3{a)
and other applicable provisions; ·
(3) Retaliatory discharge in violation of Cal. Labo1· Code § 1102.5;
( 4} Retaliatory discharge in violation of the First Amendment and the California Constitution (Art.
1, § 2);
(5) Intentional infliction of emotional distress;
(6) Negligent infliction ofemotional distress; and
(7) Other causes of action arising out of the same incidents, occurrences, events, or common
nucleus of operative facts.
The name or names of the public emplo~ec or employees causing the iniurv, damage, or
,oss, if lmown.
• City of Cupertino councilmember Barry Chang;
• The City of Cupertino City Council, including but not limited to all members of the
------Co\1l1ci~: -------
Signed: { 0. (-:J..-y l .~
Adam J. Zapala
1 Plaintiff resel'ves the rightto include additional causes ofo14_ction based on continued
investigation and the facts giving rise to this dispute .
. , ,.,:. :
3
4
Cotchett, Pitre & McCarthy, LLP
San Francisco Airport Office Center
840 Malcom Road
Burlingame, CA 94010
Telephone: (650) 697-6000
Email: azapala@cpmlegal.com
. Attorney for Claimant Randolph
·Hom
From:
To:
Randy Shinqa i
City Clerk
CC Closed Sess ion 10/30/2018 Item No . 1
Subject: Fwd: City Attorney"s allegations demand a criminal investigation
Sunday, October 28, 2018 5:14 :12 PM Date:
De ar Clerk,
Please make sure this is in the packet for Tuesday's closed session.
Thank you,
Randy Shingai
----------Forwarded message ---------
From: Randy Shingai <ra ndyshingai@gmail.com>
Date: Mon, Oct 22, 2018 at 8:53 PM
Subject: City Attorney's allegations demand a criminal investigation
To : City Attorney's Office <C ityAttorney@cupe1iino.org >, City Council
<c i tycouncil@cupetiino.org>
Cc: City Clerk <cityclerk@cupe1iino.org>, <manager@cupertino.org>
Dear Acting City Attorney and City Council,
By now you've all seen this:
https ://www .cpmlegal.com/news-Fo1mer-C ity-Attorney-Randolph-Hom-Begins-
Process-for-Multimill ion-Dollar-Lawsuit-Against-City-of-Cupe1iino. html
I believe the City Attorney's allegations demand a criminal investigation . However, the City Attorney's Office is
imp aired and will not be able to perform such an investigation . The Acting City Attorney or the City Council must
therefore call for an investigation by the Santa Clara County District Attorney to reassme the public.
Here are the Relevant Labor Code sections :
1102.5. (a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce
any rule , regulation , or policy preventing an employee from disclosing information to a government or law
enforcement agency, to a person with authority over the employee, or to another employee who has authority
to investigate, discover, or correct the violation or noncompliance, or from providing information to , or
testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has
reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation
of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the
information is part of the employee's job duties .
http s·Uleg info legis lature ca gov/faces/codes ctisp layText xhtm l?
di vision =2 .&chapte1=5 .&part=3 .&lawCode= LAB
1103. An employer or any other person or en tity that violates this chapter is guilty of a misdemeanor
punishable, in th e case of an individual, by imprisonment in the county jail not to exceed one year or a fine
not to exceed one thousand dollars ($1 ,000) or both that.fine and impriso nm ent, or, in the case of a
corporation, by a fine not to exceed five thousand dolla rs ($5,000).
htt_p s://legin fo . legis lature.ca .gov/faces/codes clisp laySection.xhtml ?sectionN um = 1103 .&lawCocle =LAB
Thank you,
Randy Shingai
Total Control Panel
To: cityclerk@cupertino.org
From: randyshingai@gmail.com
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From:
To:
Subject:
Date:
Dear Clerk,
Randy Shinqai
City Clerk
Fwd : Brown Act violation
Sunday, October 28, 2018 5: 12:03 PM
Please make sure this e-mail is included in Tuesday's packet for the closed session.
Thank you ,
Randy Shingai
----------Forwarded message---------
From: Randy Shingai <randyshingai @ gmai l.com>
Date : Wed, Oct 24, 2018 at 1:19 PM
Subject: Re: Brown Act violation
To : City Attorney's Office <CityAttorney@ cupe1i ino .org>
CC Closed Session 10/30/2018 Item No. 1
Cc: City Clerk <c ityclerk@ cupertino .org >, City Council <c itycounci l@cupe1iino.org>,
<manager@ cupe1iino .org > .
Hi again Acting City Attorney,
I'm having trouble keeping up with all the developments.
The Mercury has a story with this :
In an interview Tuesday night, Chang acknowledged he was the one who pushed to
place Hom on leave with the voting support of Vice Mayor Rod Sinks and
Councilwoman Savita Vaidhyanathan to make it effective May 11 .
https://www.mercurynews .com/20 18/ 10/24/cupertino-mayor-says-he-pushed-for-citys-
attorneys-ouster-over-val lco-flap /
This looks like a blatant violation of closed session confidentiality rules. Please investigate .
Thank you,
Randy Shingai
On Wed, Oct 24, 2018 at 12:52 PM Randy Shingai <randyshingai @ gmail.com> wrote :
Dear Acting City Attorney,
See the attached .
City Attorney Randolph Hom claims that Councilmernber Chang told him that he had votes lined up for Mr.
Hom's dismissal , should his opposition to the Vallco SB 35 Proposal continue. If this is true , it would be a Brown
Act violation.
Please investigate this matter.
Thank you ,
Randy Shingai
Total Control Panel
To: cityclerk@cupertino.org
From: randyshingai@gmail.com
Remove this sender from my allow list
You received this message because the sender is on your allow list.
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