Editor's note: The Woodside Town Council agreed to a settlement with Nancy Reyering, paying $35,000 to cover her legal fees, on Nov. 14, 2017.
A member of the Woodside Architectural and Site Review Board said Thursday (Jan. 26) that she plans to resign from the board this week and accused the town of conducting an unmerited ethics investigation of her related to an email she wrote in May 2016 regarding a residential project before the review board.
Nancy Reyering, who was a 2015 candidate for a seat on the Town Council, said the town hired the law firm of Burke, Williams & Sorensen in Oakland to conduct the investigation, and that the town paid that firm $42,905 since January 2016, according to a letter from Woodside's town attorney's office. "The only item in the public record indicating a decision to hire outside counsel since 2016 is the investigation of Ms. Reyering," she said in a press release.
Town Manager Kevin Bryant, who confirmed that the town had hired the law firm to conduct the investigation, gave a different figure: He said the town has paid the Burke, Williams firm $27,465 since January 2016.
Asked to explain the different totals, Mr. Bryant said the $42,905 figure represents the total the town spent with Burke, Williams since January 2016, including the Reyering investigation. The town spent an additional $15,441 with Burke, Williams during that time, but on matters unrelated to the Reyering investigation, Mr. Bryant said.
The Almanac requested copies of the Burke, Williams invoices, but Mr. Bryant said the town is not making them public.
The investigation began about six months ago when former councilman Dave Burow filed a complaint alleging that Ms. Reyering's May email violated the town's ethics code.
Attorney Thomas Brown of Burke, Williams recently submitted to the town a 41-page report he prepared on the investigation. In the report, dated Jan. 12, he concludes that five of the nine allegations of ethics violations should be sustained. Among the sustained allegations: reaching a conclusion about the project without hearing testimony; and personally attacking the motives of a council member and suggesting that his actions give the appearance that he is attempting to take advantage of his position to gain special consideration for his client.
The report says the next step is for the mayor to determine whether further investigation is warranted. According to the town's ethics code, when the investigation is completed, the report "shall be presented to the Town Council at a public meeting of the Council. The Town Council will accept testimony on the matter and determine whether a violation of the Code has occurred."
Ms. Reyering's term on the review board was to expire on Feb. 1. She said she does not intend to seek reappointment.
Reyering's May email
On May 2, 2016, Ms. Reyering sent an email to two other members of the five-member Architectural and Site Review Board and to the town's planning director to comment on a proposed residential remodeling and construction project that was coming before the board for its review. The board is an advisory body to the planning director and Planning Commission.
In the email, she pointed out that the architect on the project was Councilman Peter Mason. She asked that these comments be read into the record of the upcoming meeting, which she was unable to attend:
"Even a cursory review of the project raises questions as the architect is a member of the Town Council, and as such, is someone in charge of writing our building regulations. Therefore, he, and anyone else in a similar position, has a great responsibility to bring in projects that are reflective of the Residential Design Guidelines, the General Plan, and the Municipal Code, and these projects should not ask for exceptions.
"Maximum Residence Size Exception, potential lack of neighborhood compatibility, and massive pylons would set a precedent on this street, and create the potential appearance that council members are privileged when bringing projects before the ASRB. I would ask the applicant and architect to reconsider some elements of this design."
In her Jan. 26 press release, Ms. Reyering said that a "plain reading" of the comments indicates that she was reminding her colleagues of town policy and "encouraging a sitting member of the Town Council to abide (by) the spirit and the letter of local planning guidelines."
Allegations and conclusions
On June 29, 2016, Ms. Reyering received an email from Town Attorney Jean Savaree advising her that former Woodside councilman Burow had made an "ethics complaint" alleging that Ms. Reyering's May 2 email had violated the town's ethics code.
Following are the allegations in the complaint, and the conclusions by the investigating attorney, Mr. Brown:
• Suggesting that Town Council members should be subject to a more strict set of building guidelines, thereby working against the common good. (Charge not sustained).
• Stating that unequal treatment should be applied to Town Council members when they are acting in their individual capacity. (Charge sustained.)
• Reaching a conclusion about the project without hearing testimony. (Charge sustained.)
• Personally attacking the motives of a council member and suggesting that his actions give the appearance that he is attempting to take advantage of his position as a council member to gain special consideration for his client. (Charge sustained.)
• Attempting to improperly influence the ASRB decision-making process and reaching a conclusion about the project based on a cursory review before hearing testimony at a public hearing. (Charge sustained.)
• Violating the Brown Act with a communication among three of the five members of the board. (Charge not sustained.)
• Creating the appearance of a conflict of interest between public duty and personal interests "based on personal disagreements with Councilmember Mason regarding work previously done for you while acting as your architect and his failure to endorse your candidacy in the 2015 election." (Charge not sustained.)
• Failing to maintain a positive and constructive working environment for the project applicant and Mr. Mason's business. (Charge sustained.)
An allegation that Ms. Reyering had not followed the town's policy on unexcused absences from board meetings was not sustained.
Conflict of interest
In her Jan. 26 press release, Ms. Reyering said:
"The Woodside Code of Ethics states that members of the Town Council shall not appear on behalf of private interests or third parties before any Town board, including the ASRB. But rather than explore the potential conflicts of interest between Mr. Mason's public and private roles, the investigation focused on Ms. Reyering's non-binding comment that recommended the avoidance of even the appearance of such a conflict."