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Woodside: New ethics code is aspirational, informal

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.

In the spring of 2016, a former Woodside mayor accused a resident-volunteer serving on the town's Architectural and Site Review Board of unethical behavior. The monthslong process that followed proved to be costly, both in attorneys' fees and community cohesion. Resolving the conflict involved the services of Woodside's town attorney, an outside attorney the town hired, and at least two attorneys defending the accused.

The participation of attorneys may have been inevitable, given the inflexible language and punitive tone of the ethics code in force at the time. The town's new ethics code, adopted Oct. 9 by a unanimous Town Council, is informal in addressing complaints and has a tone intended to help officials aspire to ethical behavior. Instead of prescribing a step-by-step procedure to follow when a complaint is made, the new code relies on the town manager to sort things out and find a resolution.

During council deliberations, council member and attorney Daniel Yost asked Town Attorney Jean Savaree about the likelihood of someone "lawyering up" under the new code in response to an allegation of an ethical lapse.

"I think that this (code) is written in a kinder and gentler way," Savaree said. The focus is on personal responsibility and buy-in "from all the folks who are appointed and elected," she said. "You would hope that that would promote a culture in which you see fewer of these complaints, a culture in which people will have more interaction and trust with one another."

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The new code – a result of efforts by an ad hoc committee of about a dozen residents and based on an ethics code used by the city of Santa Ana – requires that the oath of office administered to elected and appointed officials include a promise to abide by the ethics code.

The new code also mandates that a section of the town's website be dedicated to the topic of ethics. And while the state already requires officials to undergo ethical training every two years, the town will provide additional training on Woodside's ethics and conflict-of-interest practices.

(The council also plans to take on the question of how to address elected or appointed officials who repeatedly fail to show up at meetings related to their duties.)

Councilman Tom Livermore was mayor when the ethical accusations came to the council for resolution, and it was his idea to revise the code. Mayor Chris Shaw suggested that Livermore make the motion to adopt the new code. "This all did start with Tom so many moons ago," Shaw said.

"It was on my plate," Livermore replied. "It seems like a reasonable way to bring this all to a conclusion after much effort, frankly, by a lot of folks in town."

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"The ad hoc committee far surpassed what I had hoped it would do," given its size, diversity of opinion and potential for emotions to enter into the discussion, he said. "The committee did a super job and came back with some really good recommendations that the Town Council could get its hands around, and here we are today."

Taking no action

Former mayor Dave Burow in May 2016 alleged ethical lapses by Nancy Reyering, a member of the Architectural and Site Review Board. The outside attorney investigating these allegations submitted his findings in January 2017 to then-mayor Livermore, who was responsible for taking the next steps, as required by the code.

The alleged violations concerned an email Reyering sent to the planning director and members of the review board about a residential design project coming before the board in which the project's architect was Peter Mason, then a member of the council. As a council member, Mason had a role in deciding on residential design regulations and guidelines. Reyering said that Mason, therefore, "has a great responsibility" to reflect those regulations and guidelines in his work and that applicants for whom Mason is working "should not ask for exceptions."

The requested exceptions in this case concerned maximum residence size and pylons "that would set a precedent on this street and create the potential appearance" that projects represented by council members "are privileged," Reyering wrote.

Reyering's email led Burow to file the ethics complaint against her, which led to a lengthy investigation and cost the town at least $33,384, according to a defense attorney who represented Reyering.

Of the nine allegations made against Reyering, the outside attorney recommended that five be sustained, including allegations of unequal treatment of Mason, personally attacking 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 required.

The ethics code at the time stipulated that the mayor present the findings to the council at a public meeting, and that the council accept testimony and determine whether a code violation had occurred.

Around that time, Reyering, whose term on the review board expired on Feb. 1, 2017, made it known that she would not seek reappointment.

When the council met in February 2017, Livermore recommended that the council not determine whether a violation had occurred, but instead take no action. The council agreed on a 4-0 vote. Savaree noted that the council had no authority to issue sanctions against Reyering since she was no longer on the board.

Livermore also recommended at the time that the council revisit the ethics code "to explore ways in which we can improve it should complaints be filed in the future." The council agreed to form an ad hoc committee of residents, led by a facilitator from the Markkula Center for Applied Ethics at Santa Clara University, to review the code and make recommendations to the council.

Disclose and recuse

The new code's section on core values elaborates on matters such as integrity, protecting the public's interests, fairness, mutual respect and the use of public resources.

The ad hoc committee made additional recommendations regarding professionals who conduct business in town and who serve as public officials:

• They should not be precluded from public service in an elected or appointed capacity.

• They should not have to recuse themselves when considering appointments of commission or committee members who may rule on matters that affect their business.

• They should disclose potential impacts on their clients to the public when a relevant policy is under discussion.

Concerning protection of the public interest, Councilman Yost sought clarification on this statement in the new ethics code: "I excuse myself from participating in decisions when my or my immediate family's financial interests may be affected by my agency's actions."

It "makes perfect sense," Yost said, to excuse oneself from a matter that involves something like a contract that would specifically benefit a relative. "Is it interpreted to mean that (in) your general role as a property owner, you can't make decisions – in which case none of us can make decisions – or is it really intended to be something more specific?" he asked.

Savaree said the phrasing was chosen because it reflects the language in the state ethics code. While the phrasing may seem to refer to a general exclusion of participation, she said, it applies more narrowly to situations that could involve a specific benefit.

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Woodside: New ethics code is aspirational, informal

by Dave Boyce / Almanac

Uploaded: Mon, Oct 15, 2018, 2:11 pm

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.

In the spring of 2016, a former Woodside mayor accused a resident-volunteer serving on the town's Architectural and Site Review Board of unethical behavior. The monthslong process that followed proved to be costly, both in attorneys' fees and community cohesion. Resolving the conflict involved the services of Woodside's town attorney, an outside attorney the town hired, and at least two attorneys defending the accused.

The participation of attorneys may have been inevitable, given the inflexible language and punitive tone of the ethics code in force at the time. The town's new ethics code, adopted Oct. 9 by a unanimous Town Council, is informal in addressing complaints and has a tone intended to help officials aspire to ethical behavior. Instead of prescribing a step-by-step procedure to follow when a complaint is made, the new code relies on the town manager to sort things out and find a resolution.

During council deliberations, council member and attorney Daniel Yost asked Town Attorney Jean Savaree about the likelihood of someone "lawyering up" under the new code in response to an allegation of an ethical lapse.

"I think that this (code) is written in a kinder and gentler way," Savaree said. The focus is on personal responsibility and buy-in "from all the folks who are appointed and elected," she said. "You would hope that that would promote a culture in which you see fewer of these complaints, a culture in which people will have more interaction and trust with one another."

The new code – a result of efforts by an ad hoc committee of about a dozen residents and based on an ethics code used by the city of Santa Ana – requires that the oath of office administered to elected and appointed officials include a promise to abide by the ethics code.

The new code also mandates that a section of the town's website be dedicated to the topic of ethics. And while the state already requires officials to undergo ethical training every two years, the town will provide additional training on Woodside's ethics and conflict-of-interest practices.

(The council also plans to take on the question of how to address elected or appointed officials who repeatedly fail to show up at meetings related to their duties.)

Councilman Tom Livermore was mayor when the ethical accusations came to the council for resolution, and it was his idea to revise the code. Mayor Chris Shaw suggested that Livermore make the motion to adopt the new code. "This all did start with Tom so many moons ago," Shaw said.

"It was on my plate," Livermore replied. "It seems like a reasonable way to bring this all to a conclusion after much effort, frankly, by a lot of folks in town."

"The ad hoc committee far surpassed what I had hoped it would do," given its size, diversity of opinion and potential for emotions to enter into the discussion, he said. "The committee did a super job and came back with some really good recommendations that the Town Council could get its hands around, and here we are today."

Taking no action

Former mayor Dave Burow in May 2016 alleged ethical lapses by Nancy Reyering, a member of the Architectural and Site Review Board. The outside attorney investigating these allegations submitted his findings in January 2017 to then-mayor Livermore, who was responsible for taking the next steps, as required by the code.

The alleged violations concerned an email Reyering sent to the planning director and members of the review board about a residential design project coming before the board in which the project's architect was Peter Mason, then a member of the council. As a council member, Mason had a role in deciding on residential design regulations and guidelines. Reyering said that Mason, therefore, "has a great responsibility" to reflect those regulations and guidelines in his work and that applicants for whom Mason is working "should not ask for exceptions."

The requested exceptions in this case concerned maximum residence size and pylons "that would set a precedent on this street and create the potential appearance" that projects represented by council members "are privileged," Reyering wrote.

Reyering's email led Burow to file the ethics complaint against her, which led to a lengthy investigation and cost the town at least $33,384, according to a defense attorney who represented Reyering.

Of the nine allegations made against Reyering, the outside attorney recommended that five be sustained, including allegations of unequal treatment of Mason, personally attacking 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 required.

The ethics code at the time stipulated that the mayor present the findings to the council at a public meeting, and that the council accept testimony and determine whether a code violation had occurred.

Around that time, Reyering, whose term on the review board expired on Feb. 1, 2017, made it known that she would not seek reappointment.

When the council met in February 2017, Livermore recommended that the council not determine whether a violation had occurred, but instead take no action. The council agreed on a 4-0 vote. Savaree noted that the council had no authority to issue sanctions against Reyering since she was no longer on the board.

Livermore also recommended at the time that the council revisit the ethics code "to explore ways in which we can improve it should complaints be filed in the future." The council agreed to form an ad hoc committee of residents, led by a facilitator from the Markkula Center for Applied Ethics at Santa Clara University, to review the code and make recommendations to the council.

Disclose and recuse

The new code's section on core values elaborates on matters such as integrity, protecting the public's interests, fairness, mutual respect and the use of public resources.

The ad hoc committee made additional recommendations regarding professionals who conduct business in town and who serve as public officials:

• They should not be precluded from public service in an elected or appointed capacity.

• They should not have to recuse themselves when considering appointments of commission or committee members who may rule on matters that affect their business.

• They should disclose potential impacts on their clients to the public when a relevant policy is under discussion.

Concerning protection of the public interest, Councilman Yost sought clarification on this statement in the new ethics code: "I excuse myself from participating in decisions when my or my immediate family's financial interests may be affected by my agency's actions."

It "makes perfect sense," Yost said, to excuse oneself from a matter that involves something like a contract that would specifically benefit a relative. "Is it interpreted to mean that (in) your general role as a property owner, you can't make decisions – in which case none of us can make decisions – or is it really intended to be something more specific?" he asked.

Savaree said the phrasing was chosen because it reflects the language in the state ethics code. While the phrasing may seem to refer to a general exclusion of participation, she said, it applies more narrowly to situations that could involve a specific benefit.

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