If the Woodside Town Council on Tuesday follows the mayor's recommendation and takes "no further action" on a long and costly ethics investigation, that may in itself be a violation of the town's ethics code, which requires the council to "determine whether a violation of the Code has occurred."
In a report to the council, which amounts to 401 pages with attachments, Woodside Mayor Tom Livermore makes his recommendation in regard to an investigation of allegations brought by former councilman Dave Burow against a now-former member of the Architectural and Site Review Board, Nancy Reyering.
Mr. Burow's complaint concerns a May 2016 email Ms. Reyering sent to two other review board members and the planning director ahead of a review of a residential construction project. (Ms. Reyering was unable to attend the meeting at which the project was being reviewed.)
Mr. Burow said the email violated the town's ethics code by, among other things, suggesting "a different set of rules" for evaluating projects involving council members (the project architect for the proposed addition was Councilman Peter Mason) and reaching a conclusion about the project before hearing testimony.
Mayor Livermore said he is making his "no action" recommendation given Ms. Reyering's Feb. 4 notification that she would not apply for reappointment to the review board and the Open Space Committee (her terms on both bodies expired this month). Also he noted that Ms. Reyering, unlike Mr. Burow, would not make herself or her attorney available for a public hearing on the matter in recent weeks.
"Were she still a member of the ASRB, I would recommend to the Town Council that we proceed with the hearing, but doing so after she has resigned serves no constructive purpose," Mr. Livermore said.
However, the ethics code clearly says that when the council receives a report of an ethics code violation, it "will accept testimony on the matter and determine whether a violation of the Code has occurred."
The mayor's recommendation is on the agenda for the council's Feb. 14 meeting, which begins at 7:30 p.m. in Independence Hall at 2955 Woodside Road.
Woodside has paid $27,465 to the law firm of Burke, Williams & Sorensen LLP in Oakland to conduct an investigation and prepare a report on Mr. Burow's complaint about the email. Attorney Thomas Brown of the law firm billed the town at a rate of $315 an hour, Town Manager Kevin Bryant said.
In his report to the council, Mayor Livermore said the town decided to turn to an outside attorney to "ensure that the investigation would be fair and impartial," and "to ensure that the investigation would be conducted by an individual with experience in public ethics law."
Ms. Reyering, asked if she would attend the Feb. 14 meeting and ask the council to take testimony and make a determination, said she "would be happy to see the council leave this ugly chapter as it stands and turn its focus to finally addressing the ethical issues I outlined in my (email)."
Her email concerned an architect for the residential project, Councilman Peter Mason, who included in his project proposal a request for an exception to the zoning code to allow a somewhat larger house. While requests for such exceptions are not uncommon, Ms. Reyering said it "raises questions" about an appearance of privileged treatment to someone "in charge of writing our building regulations."
"I stand firm in my belief," Ms. Reyering said later in an email to the Almanac, "that council members should take pains to avoid the appearance of being privileged when they bring projects before Town bodies such as the Planning Commission and the ASRB."
In his report to the council, Mayor Livermore recommends that the council emphasize the importance of the "highest ethical standards" for all elected and appointed officials, and that the council revisit its ethics code hearing and enforcement procedures "to explore ways in which we can improve it should complaints be filed in the future."
In her May 2 email to fellow board members Thalia Lubin and and Scott Larson and Planning Director Jackie Young, Ms. Reyering asked that the following comments be read into the record as the board considered the project:
"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."
The following day, Mr. Burow wrote to Town Manager Bryant, alleging that Ms. Reyering suggested "a different set of rules" for evaluating projects involving council members, putting their clients at a disadvantage. He also alleged "retribution" on Ms. Reyering's part because Mr. Mason had not supported her candidacy for a council seat in 2015.
(When asked in October 2015 if he favored a candidate for the council seat sought by Ms. Reyering and current Councilman Chris Shaw, Mr. Mason told the Almanac that he does not make endorsements.)
Recently, Ms. Reyering said in an email that a "plain reading" of her May 2016 email indicated 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."
"Frankly," she told the Almanac, "I remain mystified as to how the Town could launch such a costly ethics investigation when all I did was advocate for the same high standards that the Mayor endorsed in his statement."
In writing to Mr. Bryant, Mr. Burow suggested having a council member attend review board meetings, and making it clear to board members how to treat council members not acting in their official capacities.
The Almanac asked for a copy of Mr. Burow's formal complaint and was referred to four emails he sent to Mr. Bryant from May 2 to 20, and a June 6 exchange between Mr. Burow and Town Attorney Jean Savaree in which Mr. Burow itemized his allegations. On June 29, Ms. Savaree notified Ms. Reyering of the complaint in an email in which Mr. Burow's allegations are restated in more concise language.
The investigating attorney, Mr. Brown, edited the allegations yet again for his report. The allegations are:
• 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.
Reyering's attorney responds
Ms. Reyering was represented in this matter by attorney Joseph D. Petta of the San Francisco firm Shute, Mihaly & Weinberger LLP.
Mr. Petta's complaints included the following points:
• That the town's process for handling ethics complaints is "ad hoc and inconsistent (and) does not ensure basic fairness."
• That the town hired outside attorneys "to prosecute a citizen complaint based on a single email sent by a town volunteer."
• That the town singled out Ms. Reyering for "activities in which numerous officials have routinely engaged," amounting to selective prosecution.
• That the town, by going after Ms. Reyering "for publicly questioning the propriety of a council member's official conduct, would infringe on her constitutional right of free expression and undermines the democratic process in the town."
Mr. Petta also complained about the tone used by the investigating attorney, Mr. Brown, when interviewing Ms. Reyering.
"Under the Ethics Code and basic principles of due process, Mr. Burow has the burden to prove his claims, and until he does so, Mr. Brown and the Town must presume no ethics violation occurred," Mr. Petta wrote. "However, throughout the interview, Mr. Brown inappropriately acted as if Nancy has the burden to disprove Mr. Burow's claims."
Standards and ethics
Documents provided to the Almanac include a three-page letter dated May 10 from Councilman Mason to Town Manager Bryant in which Mr. Mason accused Ms. Reyering of violating the state's open meeting law with her May 2 email, and suggesting different standards of review for his projects.
"This point of view is unfair to my clients whose projects deserve the same consideration as others and who should also have the same access to exceptions (for somewhat larger houses) provided for in the Municipal Code," Mr. Mason said. "In fact, I would be violating my own profession's code of ethics if I did not fully advise my clients on the legal development opportunities for their properties."
In an email, Ms. Reyering commented that the town doesn't appear to be questioning "the appropriateness of his bringing projects before (the review board) at all while maintain(ing) his position on the Town Council. So, if anyone had committed an ethical violation, it was Peter Mason -- not me, for my act of simply reminding fellow (review board) members to take care to avoid even the appearance of giving him special treatment because of his position of authority over (review board) members."
On May 27, Mr. Mason wrote to Mr. Bryant, saying he was withdrawing his letter, "given that others are pursuing the issues involved."