11-20-2018 Item No. 11 Commissions Review - Written CommunicationsCC 11-20-2018 Item No. 11
Lauren Sapudar
From: Grace Schmidt, MMC
Sent: Tuesday, November 20, 2018 10:45 AM
Lauren Sapudar To:
Subject: FW: Comments on Overview of City Commissions -Agenda Item #11, 11/20/2018
Council Meeting
Print for dais.
CUPIRTINO
Grace Schmidt, MMC
City Clerk
City Manager's Office/City Clerk's Office
GraceS@cupertino.org
(408) 777-3224
0~000@>0
From: David Fung [mailto:dfung@symian.com]
Sent: Tuesday, November 20, 2018 2:46 AM
To: City Council <CityCouncil@cupertino.org>; Grace Schmidt, MMC <graces@cupertino.org>; achan@cupertino.org
Subject: Comments on Overview of City Commissions -Agenda Item #11, 11/20/2018 Council Meeting
Dear Councilmembers & Staff -
I would like to submit some comments on Agenda Item # 11 -"Overview of City Commissions and
recommendations for improving their effectiveness and communications with the City Council" for the
11/20/2018 Council meeting.
1. Attachment A -Draft Ordinance, Section 8 (p. 4) -there's a typo in the text of the ordinance. It refers to
the Planning Commission, but this section is for the Environmental Review Committee.
The following sections of Chapter 2.84 of the Cupertino Municipal Code pertaining to the Planning
Commission Environmental Review Committee are hereby amended to read as follows ."
2. Committee Work Program Workshop -The staff report includes a good recommendation to improve
communication between the Council and Committees via fo1mal approval of the annual committee work
programs. I would encourage consideration of having the Commissions include scheduling a workshop
for the development of the Work Program. This was a standard practice when I served on both the Parks
& Recreation and Planning Commission, but is not done by many of the other commissions. Our staff
liaison would b1ing a list of Council requests to the meeting, and this was a good team building
opportunity to integrate input and priorities from the Commissioners.
3 . Consensus opinion -The staff report touches on an important part of effective governance in the
discussion of Council liaisons -"they [Councilmembers] are not to speak on behalf of the Council on
matters that were not previously discussed with the Council as a whole." In the context of Commission
communications this not a major issue, but the more general issue of Council member service on
regional boards has been a heated issue multiple times in the past Council meetings and during Council
contacts . This is NOT addressed in sufficient depth in the draft Ethics policy . I would highly encourage
consideration and de velopment of guidelines to set consistent expectations for proper representation in
regional and joint powers groups.
4. Two-thirds majority -The sample Rules of Order identify a number of activities that require a 2/3
majority vote (calling the question, or motion to suspend rules). To be precise, 2/3 is 66 .6% which
would require a 4-1 vote . There should be consideration of whether you prefer these decisions to pass
on a 3-2 vote , and the Ordinance should be revised to be 66 .6% or 60% accordingly . Perhaps the 4-1
requirement makes sense so that it's a higher standard than a simple majority vote.
Thanks for your consideration on these matters.
David Fung
Total Co ntrol Pane l
To: graces @cup ert ino .org
From : clfung.tilte r@g ma il.com
Remove thi s send er fro m my all o w list
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Grace Schmidt, MMC
From:
Sent:
To:
Joseph Fruen <j rfruen@gmail.com >
Tuesday, November 20, 2018 6:12 PM
Grace Schmidt, MMC; achan@cupertino .org; City Council
CC If (;:uJII f
.;fr ll
Subject: Re: Item #11 Draft Code of Ethics and Conduct for Elected and Appointed Officials.
Thank you for including in your discussion of commission and council relations draft ethical guidelines. My
hope is that these guidelines can help make council proceedings more productive, less heated, and more
respectful of the entire public. To that end, I urge you to address each of the following points:
A. Potential conflict between draft standards and the Municipal Code
Please clarify the interaction of draft Ethical Standard 14 (entitled "Policy Role of Members" and reading
"[m]embers should not interfere with the administrative functions of the City or the professional duties of City
staff; nor should they impair the ability of staff to implement Council policy decisions"), draft Ethical Standard
16 (entitled "Positive Work Place Environment" and reading "[m]embers should recognize their special role
with City employees and in no way create the perception of inappropriate direction to staff'), and draft
Guideline 4(b), (d), and (f) relative to Section 2.18.030 of the Cupertino Municipal Code, which reads, in part:
"[i]ndividual 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."
Comment examples for each proposed guideline or standard may help resolve the potential conflict in these rule
statements, both as between each other and other law.
B. Clarification of ethical standards toward the public in official proceedings, at large, and on social media
Draft Ethical Standard 3 states: "Officials must refrain from abusive conduct, personal charges or verbal attacks
upon the character or motives of other City Officials, city staff, or the public." I have at times heard from the
council dais the comments of members of the pub lie, including residents of Cupertino, described as those of
"developer people" or "developer-controlled people" that should be disregarded. These comments seem to fall
within the prohibitions of this draft standard and draft Guideline 2, admonishing respect for comments from the
public. Please provide additional clarification, either by the inclusion of additional language, or by way of
comment examples as to what constitutes abusive conduct, personal charges or verbal attacks upon the character
or motives of the public. Please also clarify the application ofthis guideline to the social media interactions of
councilmembers and commission members in particular. Additional harmonization with draft Guideline 2 may
be necessary.
C. Maintenance of decorum in public meetings
Draft Guideline 2 describes how council and commission members should engage with the public in public
meetings. Allowing disrespectful conduct on the part of other elected officials or the assembled public chills
public participation in the democratic process and damages public confidence in the elected body and the
policies it chooses to enact. Public speaking remains a primary fear of most Americans--it is made all the worse
by heckling, applause, and booing from other members of the public during public comment periods. Please
therefore include a subsection addressing the mayor or the chair's responsibility and means for maintaining
decorum in the hearing chamber so that members of the public feel welcome to participate.
1
D. Mayor speaking to the city's official position
Draft Guideline 6 should include stronger language so that the mayor may distinguish his/her own view from
the official position of the city.
E. Implementation and accountability
There is no apparent mechanism for staff or the public to demand accountability for improper conduct in
contravention of these draft ethical rules. Indeed, the implementation section of the draft document describes
the entire code as II self-enforcing. 11 While many of these rules may not, at any rate , be enforceable under the
federal First Amendment or Article 1, Section 2(a) of the California Constitution, some sort of symbolic
enforcement mechanism should exist. A process for asking for formal censure--even if purely symbolic--of a
member of the city council or of a commission should be available so that aggrieved staff or members of the
public have a means for holding elected and appointed officials to account for improper conduct.
Many thanks for your consideration of these comments,
J.R. Fruen, Esq.
408-828-2859
Tota l Cont ro l P an e l
T o : graces@.c u pertin o.org
From : jrfruen@gmail.co m
Re move thi s s ender from my all ow li s t
Yo u receive d this message becau se the sender is on your allow list.
2
Grace Schmidt, MMC
From:
Sent:
To:
Joseph Fruen <jrfruen@gmail.com>
Tuesday, November 20, 2018 6:13 PM
City Clerk; City.Manager
cc l((J-o/[J
+¢fl
Subject: Fwd: Item #11 Draft Code of Ethics and Conduct for Elected and Appointed Officials.
----------Forwarded message---------
From: Joseph Fruen <jrfruen@gmail.com>
Date: Tue, Nov 20, 2018 at 6:11 PM
Subject: Re: Item #11 Draft Code of Ethics and Conduct for Elected and Appointed Officials.
To: Grace Sclunidt <graces@cupe1iino.org>, <achan@cupe1iino.org>, <citycouncil@cupertino.org>
Thank you for including in your discussion of commission and council relations draft ethical guidelines . My
hope is that these guidelines can help make council proceedings more productive, less heated, and more
respectful of the entire public. To that end, I urge you to address each of the following points:
A. Potential conflict between draft standards and the Municipal Code
Please clarify the interaction of draft Ethical Standard 14 ( entitled "Policy Role of Members" and reading
"[m]embers should not interfere with the administrative functions of the City or the professional duties of City
staff; nor should they impair the ability of staff to implement Council policy decisions"), draft Ethical Standard
16 (entitled "Positive Work Place Environment" and reading "[m]embers should recognize their special role
with City employees and in no way create the perception of inappropriate direction to staff'), and draft
Guideline 4(b ), ( d), and (f) relative to Section 2.18.030 of the Cupertino Municipal Code, which reads, in part:
"[i]ndividual 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."
Comment examples for each proposed guideline or standard may help resolve the potential conflict in these rule
statements, both as between each other and other law.
B. Clarification of ethical standards toward the public in official proceedings, at large, and on social media
Draft Ethical Standard 3 states: "Officials must refrain from abusive conduct, personal charges or verbal attacks
upon the character or motives of other City Officials, city staff, or the public." I have at times heard from the
council dais the comments of members of the public, including residents of Cupertino, described as those of
"developer people" or "developer-controlled people" that should be disregarded. These comments seem to fall
within the prohibitions of this draft standard and draft Guideline 2, admonishing respect for comments from the
public. Please provide additional clarification, either by the inclusion of additional language, or by way of
comment examples as to what constitutes abusive conduct, personal charges or verbal attacks upon the character
or motives of the public. Please also clarify the application of this guideline to the social media interactions of
councilmembers and commission members in particular. Additional harmonization with draft Guideline 2 may
be necessary.
C. Maintenance of decorum in public meetings
Draft Guideline 2 desc1ibes how council and c01mnission members should engage with the public in public
meetings. Allowing disrespectful conduct on the part of other elected officials or the assembled public chills
public participation in the democratic process and damages public confidence in the elected body and the
policies it chooses to enact. Public speaking remains a primary fear of most Americans--it is made all the worse
by heckling, applause , and booing from other members of the public during public c01mnent periods. Please
therefore include a subsection addressing the mayor or the chair's responsibility and means for maintaining
decorum in the hearing chamber so that members of the public feel welcome to participate.
D. Mayor speaking to the city's official position
Draft Guideline 6 should include stronger language so that the mayor may distinguish his/her own view from
the official position of the city.
E. Implementation and accountability
There is no apparent mechanism for staff or the public to demand accountability for improper conduct in
contravention of these draft ethical rules . Indeed, the implementation section of the draft document describes
the entire code as "self-enforcing." While many of these rules may not, at any rate, be enforceable under the
federal First Amendment or Article 1, Section 2( a) of the California Constitution, some sort of symbolic
enforcement mechanism should exist. A process for asking for fonnal censure--even if purely symbolic--of a
member of the city council or of a commission should be available so that aggrieved staff or members of the
public have a means for holding elected and appointed officials to account for improper conduct.
Many thanks for your consideration of these comments,
J.R. Fruen, Esq.
408-828-2859
J.R. Fruen, Esq.
408-828-2859
T otal C on t rol Pan el
To: citycl erk @.c up ertin o.org
From: jrfruen@ grnail.com
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