|
Getting your Trinity Audio player ready...
|
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 pause is in effect on an initiative, begun in March, to form a committee of Woodside residents to review and make recommendations about changing the town government’s ethics code. The matter is “on hold,” Mayor Tom Livermore said after the June 13 Town Council meeting.
Town Manager Kevin Bryant elaborated in an email: “At this time, the Town has decided to postpone its review of the Code of Ethics and Conduct. As such, the committee has not been formed. This is being done at the recommendation of legal counsel.”
Neither the town manager nor Mayor Livermore would respond to questions about when the decision was made, who made it, and why.
The town’s ethics code is central to a May 6 complaint, in a form suitable for a federal lawsuit, filed against the mayor and his predecessor by former longtime volunteer Nancy Reyering, who served seven years on the town’s Architectural and Site Review Board.
Ms. Reyering alleges that Mayor Livermore and the 2016 mayor, Councilwoman Deborah Gordon, violated her (Ms. Reyering’s) constitutional rights to free speech by the way the town handled an allegation that she had violated the town’s ethics code.
The alleged violations concerned a May 2016 email Ms. Reyering sent to the planning director and members of the architectural review board concerning a residential design project coming before the board. She noted that the project’s architect was Peter Mason, a member of the Town Council, and said the applicant should refrain from the common practice of asking for exceptions to regulations and design guidelines in light of Mr. Mason’s role on the council in forming those regulations and guidelines.
Ms. Reyering’s email led former mayor Dave Burow to, eventually, file an ethics complaint against her, leading to a months-long investigation by an outside attorney at a cost to the town of at least $33,384, according to one of Ms. Reyering’s attorneys, Jodie Smith of Moscone Emblidge & Otis in San Francisco.
Of the nine allegations against Ms. Reyering, the outside attorney recommended that five be sustained: unequal treatment of Mr. Mason, personally attacking Mr. Mason, reaching a conclusion about a project before hearing testimony and before a public meeting had been held, and failing to maintain “a positive and constructive working environment,” as the code requires.
The code requires the mayor to investigate all ethics complaints and present a report of findings to the council at a public meeting, where the council must accept testimony and determine whether a violation of the code has occurred.
Despite the code’s requirement to investigate and report to the council, Scott Emblidge, another of Ms. Reyering’s attorneys, asserts that mayors Livermore and Gordon “unlawfully” enforced a code that “violated clearly established constitutional free speech rights of which a reasonable person would have known.”
“While the town’s emphasis on civility may be admirable,” Mr. Emblidge adds, “(it) is the wrong means to the end because it infringes on a speaker’s right to engage in uninhibited, robust debate on public issues, including negative criticism — and even very sharp attacks — of public officials.”
Improving the code
In resolving the matter, Mayor Livermore recommended in February that the Town Council not determine whether a violation had occurred, but instead take no action, which the council agreed to on a 4-0 vote. The council had no authority to issue sanctions, Town Attorney Jean Savaree said, since Ms. Reyering’s term on the board had expired and she had decided not to seek reappointment.
Mayor Livermore also recommended that the council revisit the ethics code “to explore ways in which we can improve it should complaints be filed in the future.” In March, he proposed — and council members did not object to — forming an ad hoc committee of residents, led by a facilitator from the Markkula Center for Applied Ethics at Santa Clara University, to review the ethics code and make recommendations to the council.
Twelve people had expressed interest in joining the committee by April 25, but four had yet to formally apply, the mayor said in extending the application deadline. The goal was to complete the ethics code review before July, he said.
Three committee applicants contacted recently by the Almanac — Mr. Burow, Thalia Lubin and Virginia Dare — said they did not know what was going on with the ethics review. Applicant George Offen said he understood that legal issues were delaying the selection of applicants.
—
Among the eight formal applicants to this “ethics code review” are Dave Burow and Thalia Lubin. Dave is the former mayor who filed the ethics complaint against Nancy Reyering and he is currently on the Town’s Audit Committee. Thalia Lubin is currently on the ASRB. While the formation of the committee is now being postponed due to the “recommendation of legal counsel,” the Town Council should rethink the composition and should exclude applicants currently serving on a Town Committee or Board. It also surely should exclude Dave Burow since he is not a disinterested party having filed the ethics complaint that led to the necessity for the formation of an “ethics review” committee.
The Town Council might want to consider its actions or decisions more carefully – Woodside is a small town but its affairs can and and should be managed in a more competent and professional manner. This is not the Town of Mayberry (which actually might have been run better). Woodside voters take heed and urge qualified, intelligent, ethical and pragmatic people in Town to run for Town Council in the future. If not, be prepared to live with the lot we have now.