December 16, 2018 letter to Council: Demand for Active, Engaged Participation of All Council Members in Development Decisions Affecting Cupertino

Dear Mayor Scharf, Vice Mayor Chao, and Council Members Paul, Sinks, and Willey:

Please include this communication as part of the public record for items related to consideration of (1) the Vallco Town Center SB 35 project and related lawsuit(s); (2) amending the General Plan, adopting a Specific Plan or any zoning and other regulations affecting the Vallco area projects; (3) consideration of the City Council’s action in response to the recent referendums affecting the Vallco area; and (4) consideration of the City of Cupertino’s Code of Ethics and Conduct for Elected and Appointed Officials.

The City of Cupertino’s recent actions to brand its own definition of “conflict of interest” to include nebulous “organizational responsibility or personal relationship” and “strong personal bias” stray far from the legal definition and offers no purpose except to attempt to render inert elected and appointed City officials whose positions on development projects and good governance diverge from the established status quo.  Just as importantly, the entire “conflict of interest” scheme is unconstitutional on its face because it tries to restrict the basic work of the City Council. City Council members are elected precisely because they speak up for specific ideas,  and if elected will work to put those ideas into practice. 

Council Members, we understand you have been asked to participate in “ethics testing,” whereby an individual hired by a City employee asks questions intended to “guilt” you into acknowledging that you: (1) have opinions, (2) have expressed those opinions in public, and (3) have convinced others to vote you into office because they believe you have the initiative and wherewithal to convert your opinions into public policy they can stand behind. This entire exercise is a travesty that effectively subordinates the authority of the City Council as the highest policy-setting organ of the City to the permanent bureaucracy.  We note that the evaluation of the purported “testing” remains within the control of the bureaucracy, and individual Council members do NOT have the protection of an attorney-client relationship with the outside attorney hired and control by the City bureaucracy.  The results of the purported “tests” are effectively owned and controlled by the City staff and can be used at any time for proper or improper purposes.

The California League of Cities offers excellent conflict of interest training materials, including: “Providing Conflict of Interest Advice: From Basic to the Advanced” by Eric S. Vail and Gregory P. Priamos, 2/23/2017

We urge you to follow the law to determine if/when you have a conflict of interest and recuse yourselves from decisions before Council — if and only if — your unique situation conflicts with statutory rules:

1. No public official at any level of state or local government shall make, participate in making, or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.
(Gov’t Code § 87100 / 2 CCR § 18700)

2. A public official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect, indistinguishable from its effect on the public generally, on the official, a member of his or her immediate family or any of the following:
 (Gov’t Code § 87103 / 2 CCR § 18700)

Type of Financial Interest (Threshold for Financial Interest)

  • Business Entities ([having] director, officer, partner, trustee, employee, management power)
  • Business Interest/Investment ($2000 and above)
  • Real Property ($2000 and above)
  • Source of Income ($500 and above in prior 12 months)
  • Donor of Gift ($470 and above in prior 12 months)
  • Personal Finances ($250 and above)

(Gov’t Code § 87103 [a] – [f]; 2 CCR § 18700[c][6][A] – [E])

Furthermore, we encourage you to refuse requests to participate in “ethics testing” and refuse to sign the false Code of Ethics and Conduct for Elected and Appointed Officials. We hope that you will recognize the Code of Ethics and Conduct for Elected and Appointed Officials for the blatant tool of manipulation that it is and repeal its implementation at your next opportunity. We encourage Council to seek disinterested legal opinions on this matter in the event there exists any hesitation to follow the law regarding what does and does not constitute conflict of interest.

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However, should Council decide to ignore our suggestion to follow the law and, instead, pursue the “conflict of interest” game to its full conclusion, we will play along:

For our part, we demand the recusal of Council Member Rod Sinks from any decision-making activities affecting the Vallco property and further demand that he not be allowed to share information related to the Vallco Town Center SB35 application and the Vallco Town Center SB35 lawsuit.

If others are constricted by “conflict of interest” concerns, then certainly Rod Sinks has a conflict of interest on any matter relating to the Vallco projects. He has a long history of advocating for the developer’s position and ignoring the long-term interests of Cupertino citizens in keeping a sustainable, well-managed city with sensible and mature long-term planning of building and development throughout the city. For example:

(1)  Most egregiously, Rod Sinks allowed his face to appear on fliers circulated by Peter Pau (an individual from Atherton, CA doing business as “Sand Hill Property Company” ) and Vallco Property Owner, LLC during the recent elections.
(2)  Shortly after being elected in 2011, Rod Sinks started speaking for the Peter Pau-sponsored Main Street proposal.
(3)  In 2014, Rod Sinks voted to gift Vallco the right to develop TWO MILLION SQUARE FEET of office space.
(4)  Rod Sinks worked hard to hide the non-compliance of Vallco’s projects with the existing General Plan, current zoning, and other City and statewide laws.
(5) Rod Sinks is referenced by name in former City Attorney Randolph Hom’s tort claim alleging wrongful termination because Mr Hom’s legal counsel claims Mr Hom “preliminarily concluded that the (Vallco Town Center SB 35) development plan was unlawful for a variety of reasons, including but not limited to, its inconsistency with the City’s General Plan.”
(6)  Rod Sinks took a key role in drafting the misleading ballot description for the Cupertino Citizens’ Sensible Growth Initiative (Measure C, 2016).
(7)  Rod Sinks clearly coordinated his actions as a Council Member with the Vallco Property Owners, LLC’s interests on numerous occasions.

For these reasons above and unless/until Council decides to follow the law–and not pursue its own arbitrary rules regarding “conflict of interest” — we demand that Rod Sinks be recused IMMEDIATELY from any participation in:

(1)  Consideration of the Vallco Town Center SB35 project and the related SB35 lawsuit.
(2)  Amending the General Plan, adopting a Specific Plan or any zoning and other regulations affecting the Vallco area projects.
(3)  Consideration of the City Council’s action in response to the recent referendums affecting the Vallco area.

If Rod Sinks’s recusal shall come to pass, please also ensure that the Council’s action in response to this demand is voted on in public. The matter should be debated in public to the greatest extent possible, although, of course, there will likely be confidential issues for which a follow-on closed session should be scheduled.

We thank each of you for your urgent consideration of this matter, and thank Rod Sinks in anticipation for his action in doing the honorable thing now should Council decide to adopt a definition of “conflict of interest” that reaches beyond the established, legal threshold.

Better Cupertino

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Better Cupertino supports:

•    Informed, empowered residents who are engaged in civic matters
•    Transparency and accountability in local and regional government
•    Sensible growth that is aligned with the needs and interests of a majority of residents