Council member Antonio Lopez, who was elected last November, emailed the council on May 18, announcing that he and two colleagues, Lisa Gauthier and Regina Wallace-Jones, had formed a quorum to call an "emergency meeting" two days later to discuss termination of the city attorney. City Attorney Rafael Alvarado is currently away on family leave.
The email took Mayor Carlos Romero and Vice Mayor Ruben Abrica by surprise. Neither had been asked to attend the meeting nor informed of any issues regarding Alvarado. Lopez had circumvented the usual procedure of asking the mayor to put the item on the agenda for the next meeting, Romero and Abrica said.
Romero and Abrica refused to attend the May 20 closed session, but they did show up for the public portion of the meeting. Before the other three council members went into the closed session, the senior members gave them an earful.
Abrica called the rushed meeting "a power move" and a disservice to transparency and community input.
"Whether a meeting is called by the mayor, as is the normal procedure, or imposed by three members as is the case here, the matter should be approached with respect for the public to be notified with plenty of time so they may comment or ask questions about any potential major decisions. For today, barely 24 hours' notice was given and the purpose of the closed session is now hidden from the public," he said, reading a letter he wrote to the community into the public record during the May 20 meeting.
"This closed-session meeting is a very troubling example of secrecy and underhanded tactics to avoid facing the public. It's an assault on our local institution of government, intended to democratically serve the people, not the egos of politicians. I, for one, will not participate in this farce of a 'closed' session. There are real urgent needs of the community to be addressed instead of this destructive power game playing," he said.
Romero stressed the need for a fair, transparent process to evaluate the city attorney rather than a rush to judgment. The council supervises just two employees: the city manager and the city attorney.
"Any termination or discussion of the termination of any employee of ours must be accompanied by a thorough, full discussion with counsel. The liability you are imposing upon this city by doing this in an expedited, thoughtless manner will put this city and its administration in jeopardy," Romero said.
Romero and Abrica also allege the closed meeting might not have been convened legally. Lopez's email categorized the session as an "emergency" and identified the city attorney as the subject of the confidential personnel meeting.
Shortly thereafter, Lopez corrected his first email to state that the meeting would instead be a "special closed session" and the topic would be on a "public employee discipline/dismissal/release," no longer specifying the city attorney.
Tempers flared on May 20, as Romero and Abrica rebuked their three colleagues. Wallace-Jones said the accusations were unfounded.
"This feels disrespectful and belittling," she said. "Let's make it very clear: This is a public process in which council members can indeed express their opinions and more importantly, express their concerns."
Gauthier took exception to being berated by Romero.
"I am your colleague. Treat me as such!" she told Romero during the meeting.
This past Tuesday, she told this news organization that she thought it would have been best for all council members to be in the room for the closed meeting. She also hoped the council could come together collegially.
"Unfortunately, two of my colleagues were belittling and accusatory to other council members. We are not subordinate to them. I hope we can get to a point where there's more respect on the council," she said.
Romero said during the meeting that the correction of the announcement (from "emergency" to "special" and from identifying Alvarado to not identifying him as the subject of possible termination) came too late and could subject the city to expensive litigation.
Pulling back on the original language doesn't change the error, Romero said.
"Trying to legitimize it by calling it a special meeting does not give a pig another name. The lipstick doesn't change the fact that it continues to be an illegitimate meeting," he said.
Interim City Attorney Valerie Armento, who is filling in for Alvarado while he is away, said Lopez's first email did not comport with the Ralph M. Brown Act, the state's government transparency law that dictates the kinds of issues that justify declaration of an emergency closed session.
"A work stoppage or something that would severely affect public health and safety; a terrorist attack or something like that," she said.
Lopez's first email "was not accurate with regard to the need for an emergency closed session," she added.
Regarding naming Alvarado, Armento said that while the Brown Act states a special meeting must say what the agenda item is about, it is not typical to name the individual in a personnel matter. She did not state that doing so is illegal, however.
Romero and Abrica also raised concerns that Lopez, Wallace-Jones and Gauthier, in conferring to set up the special meeting, may have also discussed the city attorney's performance, which would constitute another violation of the Brown Act.
Under the Brown Act, the majority cannot meet or communicate privately to discuss matters outside of a legal meeting because, in that case, no formal notice would have been given to the public of the discussion, Romero said.
Gauthier, however, said at the May 20 meeting that she did not discuss Alvarado with the other council members. Last week, she said during an interview that when Lopez asked for the emergency meeting, he didn't go into details about his concerns regarding Alvarado. She agreed to attend because she wanted to understand what was going on.
"I didn't know if something urgent was going on or if there was a crisis," she said. She went to the meeting because she didn't want to discuss the issue outside of a formal meeting or to violate the Brown Act, she added.
Abrica and Romero said in follow-up interviews that they remain baffled by Lopez's actions, and why he felt his concerns about a city attorney they respect and with whom they find no fault rose to the level of an emergency and termination.
They also questioned why Lopez chose an end run around the mayor and vice mayor to schedule a meeting and didn't bring the matter up through the usual procedure that involves the mayor.
Lopez did indicate during the council's May 18 meeting that he wants the council to open up the selection of agenda items to all five council members, which, he said, would be more "democratic." But Romero and Abrica said the process is already democratic. If the mayor doesn't include a requested item on the next meeting's agenda, the council member can make the request during a public meeting and a vote can be taken by the council for the item's inclusion at the next meeting. The council member can also draft a "colleague's memo" requesting discussion of the topic for the other members to vote on. Such procedures are standard in city councils.
Is personnel investigation a factor?
While Abrica and Romero say they are unaware of the reason for Lopez's urgency, Abrica said during the May 20 meeting that he's concerned that the effort to fire Alvarado might be linked to a recent and separate personnel investigation.
Lopez, however, has stated that he simply wants the city to employ a more effective city attorney.
At the May 18 meeting, Lopez asked that two agenda items that had been scheduled for a procedural approval be rescheduled for a full discussion. Both items were written by Alvarado and pertained to ethics and the retention of an outside firm to investigate a personnel matter.
The council members agreed to take up the two items at their next meeting.
This past February, the city retained Kramer Workplace Investigations to perform a personnel investigation, and on May 18 the council was to approve the expenditure for Kramer's continued services, according to a report written by Alvarado.
"The city has current and anticipated personnel matters that require specialized outside legal and investigatory services," Alvarado wrote. "Special circumstances exist to waive the bid procedures on the grounds that the city must perform timely personnel investigations."
The council was also set to approve a separate resolution, "Code of Ethics and Conduct for Elected and Appointed Officials," but Lopez said he has questions he'd like Alvarado to answer.
Likewise, Lopez said that he needed the city attorney to be present to clarify questions about the outside investigative firm. Armento hadn't been involved in the personnel investigation and couldn't speak to it, the council determined.
Abrica said during the May 20 meeting that he's concerned that the sudden urge to fire Alvarado might be linked to trying to shut down the investigation.
"Let's not attack the messenger because the message makes officials uncomfortable. Why is the Office of the City Attorney being attacked and ambushed with such speed?
"Whenever city government personnel investigations are conducted as a result of complaints, and including investigations involving elected officials, the best practice has been to retain an independent investigator and not an employee of the city to perform timely investigations of personnel matters. This is what the city attorney has done and in my opinion correctly so," Abrica said.
Romero said last week that while some people could construct a possible connection between the move to fire Alvarado and the city attorney's request to move forward with a sensitive investigation based on the timing, he would not question Lopez's motive "because I can't get into council member Lopez's head."
After the May 20 closed session adjourned, Armento reported publicly that no vote had been taken.
On May 27, Lopez released a statement to clarify his reasons for wanting to potentially terminate Alvarado.
He said he "will be seeking to hire a working city attorney that is present and serves the city in a manner that is organizationally efficient.
"As the city attorney is the highest paid position within the city of East Palo Alto being paid a total of $228,225 plus benefits, and a total compensation package for the attorney's office of $858,935 proposed for FY 21-22, Councilmember Lopez is seeking to create long-term cost savings, and in the process, to re-invest those savings into critical city services," the announcement said, referring to Lopez in the third person.
"Our city attorney has demonstrated an inability to serve the needs of an ever-changing community. Staff needs an attorney who is present for the day-to-day operations of the city," Lopez wrote. "While he is present for public meetings, I have seen firsthand the strain that his general absence causes on our city's day to day operations."
Romero, who read the press release, said on May 27 that it publicly airs unsubstantiated complaints about the city attorney before Alvarado even has a chance to know or address the accusations. It was "almost an indictment of the city attorney through a press release. It is akin to a public execution of his reputation," he said.
When contacted for an interview by this media organization, Alvarado said that while he appreciated the opportunity, "I have no comments about the matter at this time."