Furth has sealed her fate. She did her best to try and exonerate Carlsn but failed. She managed to implicate Jim Janz in the process, who has powerful friends of his own.

Carlson has a choice. He can stay on the City Council or he can work against High Speed Rail. However he cannot do both. Furth has made that clear in her report.

Whether Carlson should be prosecuted for his past actions remains an open question.

Some say that the former Town employee who complained about Jerry Carlson interest has an axe to grind.

It looks as though his axe is plenty sharp already. It looks like he is using that axe to chop away at corrupt politicians.

[This and several subsequent posts removed; same poster using different names on a thread violates terms of use.]

Having read Wynne Furth's report is appears to me that Mr. Carlson met the "Publically Generally" exemption (as it applies to elected officials living in FPPC defined small jurisdictions) of the Political Reform Act's Conflict of Interests rules. While he did not meet the other standards for exemption it appears that meeting any one of the standards is sufficient.

What am I missing?

I don't know why I'm getting credit for anything here. Also, I'm not running for council. I just think that Atherton will be a better place if our elected officials don't have any conflicts of interest in their decision making. To answer Peter's question (having read the report as well), I believe even Ms. Furth knows she's on somewhat shaky ground and in the last paragraph says that her opinion should not be relied on as conclusive. I do not believe the FPPC would view a small subset of homes stacked up against the rail as the "public generally". We should not be trying to push the boundaries of what is appropriate or legal. To me, if I have a multi-million dollar home that will get decimated in value if a rail is constructed, I'm not supposed to be part of the decision making about what's good for the community about that rail. According to the Athertonian newsletter yesterday, both Jerry Carlson and Jim Janz serve as Atherton's defacto decision makers/lobbyists on this issue. I understand they both live close to the rail, and Janz may not even live far enough away to meet Furth's convoluted logic. Is it a coincidence that both the leaders involved here have homes that are directly impacted? This is not good governance practice. I even believe Messrs. Janz and Carlson can be effective lobbyists, and I in fact agree with their opposition to the rail, but good process and governance (the means) should trump the ends any time. We have other leaders who can step in without the actuality or appearance of a conflict. Just my two cents.

The following email was sent today:

Dear Town Council,

In light of the report from Wynne Furth on the potential for conflict of interest on this matter, I would politely suggest that the Council revisit their decision to file suit on the HSR issue and that Council Member Carlson be given the opportunity to recuse himself from the Council's deliberations before that revisitation takes place. I would also suggest that, in light of the standards elucidated in Wynne Furth's memo, that Jim Janz be given the opportunity to recuse himself from discussion and deliberation on the HSR by the Transportation Committee.

Both Mr. Carlson and Mr. Janz may well wish to ask the FPPC for guidance before making a decision to recuse themselves from discussion, deliberations and decisions on the HSR issue since the conclusions in Wynne Furth's memo are, in my opinion, ambiguous and tenuous and, as Ms. Furth herself noted her opinion, are not determinative with regard to actions by the FPPC.

Should the FPPC determine that a conflict of interest does not exist then the actions taken to date would not need to be revisited.
If the FPPC rules otherwise then any decisions made in which a party who was determined to have a conflict of interest will need to be revisited by the non-recused members of the Council and the Transportation Committee.

Should either or both Mr. Carlson and Mr. Janz decide to recuse themselves it should be noted that such recusal then requires them to completely remove themselves from any Council or Committee discussions, deliberations and decisions even to the point that they may not, once recused, even be present during such discussions, deliberations or decisions nor may they exercise the right to speak as a private citizen at such meetings.



Respectfully,


Peter Carpenter

I never liked Jerry Carlson. It is nothing personal. He just never gave me any indication as to where he stood on the issues of importance confronting this community.

Like Charles Marsala, he seemed to be more interested in preserving his image than taking a stand on matters of importance.

Now I find that he has a conflict of interest.

I do not intend to vote for him this November. I urge my fellow voters to look at the alternatives. We need a man or a woman of principle and vision.

I would suggest that we all withhold judgment on the conflict of interest issue until the FPPC provides a written determination. Ms. Furth's memo is, in my opinion, inconclusive and ambiguous. At no point do she make a simple declarative statement and she acknowledges that only the FPPC can make an official determination. Hopefully the parties involved will ask the FPPC for such a determination.

Absent an official FPPC determination every action which the Town takes regarding HSR may well be challenged at a later date.

Peter, I stand corrected.

Jerry Carlson does not have a conflict of interest in fact. This is something that the FPPC must give guidance on.

Nonetheless, Mr. Carlson does have an conflict of interest in appearance. When I was a partner in a big eight accounting firm, we strove to avoid conflicts of interest in both appearance and in fact.

As I understand it, Mr. Carlson served in industry as an accountant. He ought to know the rules as well as anybody.

The fact that Carlson went ahead and voted in spite of the fact that by doing so he was conflicted in appearance at least shows a level of arrogance or ignorance that is worthy of contempt.

Yes, Peter we should suspend judgement on whether there is a conflict of interest in fact. However, in my view, the Furth analysis shows that there is little doubt Carlson has a conflict in appearance at the very minimum.

I respectfully submit that the voters should pass judgement by giving him a thumbs down if he is foolish enough to run for Council in November.

Just a quick question...

If an elected official owns and uses a cell phone, can they vote on the permitting of a new tower without it being a conflict of interest?

Of course, because according to the rules that affects everyone in the same general way. Here the two prime movers on high speed rail live right next to it and it will affect their property values to a far greater extent than just about anyone else in Atherton.

Thank you, Jon.

I presume no one takes issue with these people being against HSR.

The issue is limited to their votes to have the Town of Atherton sue HSR "on their behalf," correct?

Mr. Buckheit deserves my respect. More than anyone he should be outraged at how Mr. Carlson has treated him. But he has not lashed out at Mr. Carlson.

Carlson voted Buckheit down for the Finance Committee because Carlson thought Buckheit, with his civil rights litigation against the Town had a conflict.

Now we discover that Carlson has a conflict with his participation on the Rail Committee.

What is goes for a for an ordinary homeowner should go for a Councilman.

Carlson owes Buckheit an apology.

POGO, I actually agree with the positions Messrs. Carlson and Janz have taken on HSR. I don't like the process that allows conflicted individuals to vote. That practice hurts this town in so many ways, and if it's okay for HSR it will be deemed okay for other things as well. Also, as Peter alluded to, all the time and money Atherton is spending to fight HSR can be put in jeopardy if people authorized these actions when they were not legally entitled to.

Anybody who opposes High Speed Rail should be gravely concerned about Carlson's and Janz's involvement.

Any supporter of High Speed Rail is likely to feel overjoyed. There is a prospect for throwing out the action against HSR because of the conflict of interest of these two influential people.

To the extent Carlson's involvement was illegal and conducted under the cover of closed session, it is possible fees would be awarded to the plaintiff under the attorney general act.

Nice going Jerry, the Town is likely to pile up more legal bills on account of your behavior.

Peter: Would you please post the text of Wynn Furth's report if you have it available in digital form?

I only have the report in pdf format so here is the best digital conversion of that report that I could do. It is missing a map showing the properties near the HSR alignment.

Hope this helps.

Peter
***********
Town of Atherton
TO: ATHERTON CITY COUNCIL
FROM: WYNNE S. FURTH, CITY ATTORNEY
DATE: MAY 19,2010 - UPDATED JULY 9, 2010
SUBJECT: ANALYSIS OF CONFLICTS OF INTEREST FOR HIGH- SPEED RAIL
UNDER THE POLITICAL REFORM ACT
SUMMARY
An Atherton public official who lives more than 300 feet away from the Caltrain rightof-
way may participate in Town decisions on high-speed rail if there are at least 20 other lots
within 500 feet of the right-of way of similar value, unless (l) the lot is more than 53,220 square
feet in area or (2) there is a financial interest that arises from something other than his or her
home.
BACKGROUND
The California High-Speed Rail Authority ("HSRA") proposes to build a portion of its
Los Angeles to San Francisco high-speed rail line through the San Francisco Peninsula on the
former Southern Pacific right-of-way that runs through the Town of Atherton. The proposal is a
subject of considerable controversy in the Town; it is anticipated that the construction and
operation of a high-speed rail line would have significant impacts on the Atherton environment.
The Town is a party to a lawsuit challenging the adequacy of the environmental impact report
and participates with other San Mateo and Santa Clara communities in a joint effort to address
the issues raised by the proposal.
Jonathan Buckheit, in an email to the City Council dated Friday, April 23rd
, stated his
belief that Council Member Jerry Carlson violated Government Code section 87100 through his
membership on the Town's Rail Committee and by voting on rail issues. He said, in part:
The linkage between rail issues and the value of Mr. Carlson's home is selfevident.
I believe the correct mechanism at this point is for Mr. Carlson to step
Page I of4
1336102v l05025/0020
down from the Rail Committee and recuse himself from any future votes on this
matter.
In an email of the same date, also to Mayor McKeithen, John Johns also objected to Council
Member Carlson's participation in rail matters.
ANALYSIS
The Political Reform Act, California's conflict of interest law, is administered by the Fair
Political Practices Commission ("FPPC"). The FPPC has issued detailed regulations to
implement the law. (2 California Code of Regulations section 18700 and following.) The FPPC
summarizes the law as follows:
You [a public official] have a conflict of interest with regard to a particular
government decision if it is sufficiently likely that the outcome of the decision
will have an important impact on your economic interests, and
a significant portion of your jurisdiction does not also feel the important impact
on their economic interests. [Emphasis in the original.]
Can I Vote? A Basic Overview of Public Officials'
Obligations Under the Political Reform Act's Conflict-ofInterest
Rules.
Mr. Carlson is a public official, and his home qualifies as an "economic interest." However,
regardless of the size of the impact of high-speed rail on his home, he may participate in rail
decisions if a significant number of Athertonians are in the same situation. This rule is known
as the "public generally exception" to the general conflict of interest rules.
Small Jurisdictions and the "Public Generally" Exception for Domicile
The FPPC has issued special rules defining the "public generally" in small jurisdictions
for conflicts that would otherwise arise because of the location of an official's home
("domicile.") As a town with a population under 30,000 and an area less than ten square miles,
Atherton qualifies as a small jurisdiction. ( 2. Cal. Code of Regs. § 18707.10.)
The rules apply to the homes of public officials who (1) are required to live within the
jurisdiction, and (2) if elected, are elected at large. Atherton council members and Rail
Committee members are required to be residents of Atherton. (See Section 3 of City Council
Resolution No.1 0-13 on the latter point.) Atherton's council members are elected at large, not
by district.
There is no conflict of interest if:
Page 2 of 4
1336102v 1 05025/0020
(a) The official's property is more than 300 feet from the
boundaries of the property that is the subject of the governmental
decision;
(b) The official's property is located on a lot not more than
one-quarter acre in size or not larger than 125 percent of the
median residential lot size for the jurisdiction; and
(c) There are at least 20 other properties under separate
ownership within a 500-foot radius of the boundaries of the
property that is the subject of the governmental decision that are
similar in value.
The regulation goes on to explain:
For purposes of this regulation, "domicile" means the real
property upon which the official makes his or her true, fixed, and
permanent residence and the place to which he or she has the
intention of returning after any absence. A person may have more
than one residence but only one domicile.
AllillYil}g.lh.~.J~.uJes to Council Member Carlson
Assistant Town Planner Lisa Costa Sanders and Deputy City Clerk Theresa della Santa
have provided the following information:
a. Mr. Carlson's home is slightly over 709 feet from the right-of-way.
b. Mr. Carlson's lot is listed by the County Assessor as 43,996 square feet in
area, which is just under one acre. The median residential lot size in Atherton is
42,600 square feet. One hundred and twenty five percent of 43,996 square feet is
54,995, just under one and a quarter acres.
c. There are approximately 144 residential properties within 500 feet of the
rail road right-of-way. A number of these parcels are in the R-IB district and are
significantly smaller than the Carlson property. However, there are thirty-six
properties in the R-l A zone. (See Exhibit A.)
The Carlson home is well over 300 feet from the right-of-way and the lot is small enough to
qualify for the exception. It is likely that at least twenty properties in the 500-foot radius are
"similar in value" based on identical zoning, similar lot size, and neighborhood. (The services
of an appraiser could provide a more definitive answer, but there is not quantitative definition of
"similar.")
Rail Committee
The Political Reform Act's rules apply to members of Town boards, committees, and
commissions if, like the Planning Commission, they make actual governmental decisions. It
also applies if the body makes substantive recommendations that are, and over an extended
period of time have been, regularly approved "without significant amendment or modification"
Page 3 of 4
1336102v l05025/0020
by the City Councilor other decision-making body. If this is not the case, then the board is
advisory and the conflict of interest rules do not apply. 2 Cal. Code of Regs. §18701.
Alternative "Public Generally" Test
Conflicts of interest can also be analyzed under Section 18707.1 of the FPPC
regulations, which allows a public official to participate in a decision if ten percent or more of
the residential property owners in the Town are affected in substantially the same manner. The
Atherton Housing Element identifies 2,452 households in Atherton. It appears that there are
approximately 200 homes as close to the right-of-way as the Carlson home, some of which are
in the RI-B zone. This does not reach the 245 minimum to invoke this test.
General Test for Conflicts of Interest Based on Domicile
If the "public generally" exception does not apply to a public official, then Atherton
town officials would use the test for real property that is "indirectly involved" in a decision. l
There is a presumption that there is no conflict if the property is at least 500 feet away from the
right-of-way. However, if there are specific circumstances that make it reasonably foreseeable
that the decision will have a material financial effect on the public official's home, there is a
conflict. That specific effect might be a change in the character of the neighborhood, including
noise levels. Some jurisdictions retain appraisers to assist in determining whether a conflict
exists in such circumstances but many, if not most, do not. A public official can also seek
guidance from the FPPC on what level of evidence is needed, as discussed below.
FPPC Opinions
A city attorney's analysis of a possible conflict of interest under the Political Reform Act
does not provide immunity from FPPC enforcement or prosecution. In addition, this analysis is
made on behalf of the city, not any individual public official. A public official may request a
written advisory opinion from the FPPC. Good faith reliance on an FPPC opinion does provide
immunity from FPPC enforcement or prosecution.
This memorandum has been updated and revised after the Town ascertained the median
residential lot size.
J FPPC Regulation 18704.2 lists the various fOnTIS of direct involvement of a property: changing from one zone to
another; purchase, sale or lease; annexation or de-annexation; construction or improvement (but not repairs or
maintenance) of public improvements that will benefit the property; issuance or denial of a land use entitlement;
imposition or repeal of taxes on the property. Also, if the public official's home is within 500 feet of the property
that is the subject of the decision, the official's home is considered to be "directly involved."
Page 4 of4
13 36102v I 05025/0020

Thank you, ONCE MORE, Mr.Carpenter, for your clarity and proper approach to all discussions along with substantiating material. The "PENINSULA" is truly lucky to have someone like you among its citizens. You take no sides but unravel the twisted logic in most arguments when they near childlike behaviour.
I would love to see the HSR map if you could tell me, and others who are interested, how to obtain a copy.
Again, you are a boon to any of our "special areas" on the Peninsula.

The entire report is available from the Town Clerk at [email protected]

Jon Buckheit has the correct perspective on this matter.

By virtue of Jerry Carlson\'s involvement, the Town is open to a legal challenge on itw own challenge to High Speed Rail.

It would be a shame to risk losing on a good cause because of the improper actions of one elected official.

Carlson should step down from the High Speed Rail Committee and perhaps the City Council immediately. He has violated his fiduciary obligation to this community by participating in decisions affecting high speed rail.

Lou Montini states:"By virtue of Jerry Carlson\'s involvement, the Town is open to a legal challenge on itw own challenge to High Speed Rail."

In the absence of a finding by the FPPC that Carlson has a conflict of interest how can you come to the conclusion that he does? It appears from the Furth report that because of the location of his residence that Carlson qualified for at least one of the exceptions. While her findings are not determinative they at least suggest that Carlson may not have a conflict on this issue.

Is your position 'guilty until proven innocent'?

Yes Peter. In this case Jerry Carlson is guilty until proven innocent. I judge him so because he has created the perception of a conflict of interest.

He has given those who support high speed rail a line of attack that they would not have had if Carlson had done the prudent thing and recused himself at the outset.

At a very minimum Jerry Carlson is guilty of arrogance. At a minimum Jerry Carlson by his arrogance created yet another problem that the Town should not have to be dealing with.

I suspect he is guilty of far worse. On the issue of a conflict of interest in fact I will suspend judgment until such time Atherton refers this matter to the FPPC.

It is sad that citizens are willing to condemn someone who has been willing to take up the mantle of elected office and who may well have acted in good faith.

None of us is qualified to be both judge and juror.

Hopefully the Town will seek an official determination from the FPPC.

In the meantime, I remain committed to our long and proud national tradition of innocent until proven guilty.

Since when has arrogance been a crime.....


Thank God its not.....Half of Atherton would be wearing ankle bracelets.....


Mr. Carlson may well have made a mistake.....A MISTAKE......get it....

I love it that so many are so willing to slap the crap out of people who will give off their time to help run our community, and so unwilling to step up to the plate themselves.

The only person Jerry Carlson was interested in helping was Jerry Carlson.

Jerry Carlson gave Charles Marsala a free pass. It now looks as though Marsala has the opportunity to return the favor. Any motion to send this issue to the FPPC will die for a lack of a majority just like the motion McKeithen made to have an independent review of Marsala.

Arrogance is not a crime, so no Carlson is not likely to go to jail for it. Nonetheless he deserves to be held responsible.

Kick him off the Rail Committee at least, better yet, kick him off the Council.

Montini states:"Any motion to send this issue to the FPPC will die for a lack of a majority"

The request to the FPPC can come from any individual including Jerry Carlson - it does not have to come from the Council or even from the Town.

Notice:

Advice issued by the Fair Political Practices Commission provides guidance to the person requesting the advice and is based on the specific facts that person has provided and the language contained in the law at the time the advice was issued. While this advice may provide guidance to others, the immunity provided by Government Code Section 83114(b) is limited to the requestor and to the specific facts contained in the formal written advice.

Formal written advice provided pursuant to Government Code Section 83114(b) does not constitute an opinion of the Commission issued pursuant to Government Code Section 83114 (a) nor a declaration of policy by the Commission.

We have attempted to identify letters that have conclusions that have been superseded by subsequent advice. We have not been able to identify all the letters that relied on laws or policy that have subsequently changed. As the statutes, regulations, and other related laws frequently change, we strongly advise you to contact the Commission for advice based on your specific facts and circumstances.
******************************

In addition any individual who has the interest and the desire may file a complaint with the FPPC by following this procedure:

picture of enforcement logoINFORMATION REGARDING THE FPPC'S COMPLAINT PROCESS

I. Introduction

The information below will assist you in filing a complaint with the Fair Political Practices Commission if you suspect a violation of the Political Reform Act ("the Act"). Please read these instructions carefully. A complaint form must be completed in its entirety to constitute the submission of a sworn complaint. If you have any questions regarding the information required by the complaint form, do not hesitate to call and speak with a Political Reform Consultant in the Commission's Enforcement Division 916-322-5660 or toll free at 866-ASK-FPPC. Often, discussing your complaint with a consultant will expedite its processing and resolution.


II. Filing a Complaint

A. Sworn Complaint

The law provides that if you suspect a violation of the Act you may file a sworn complaint with the FPPC (Gov. Code Sec. 83115).

The Act and FPPC Regulations provide that a sworn complaint filed with the FPPC entitles the complainant to certain rights and processes, described below. A sworn complaint must comply with certain requirements. Using the complaint form and providing as detailed information as possible will assist the FPPC in processing your complaint. At a minimum, you must do all of the following:

1. Submit your complaint in writing.
2. Sign the complaint under penalty of perjury.
3. Identify the person(s) who allegedly violated the Act and list the specific provisions the person(s) violated.
4. Describe with particularity the facts constituting the alleged violation and provide any evidence to support the complaint.
5. Include names and addresses of witnesses, if known.

The FPPC may only act on complaints alleging violations within its jurisdiction. In order for us to process your complaint, all of the pertinent information the form asks of the complainant must appear on the form, not as an attachment. The complaint must state a specific violation of the act including the date on which it occurred, and must also state how you have personal knowledge of the violation. It may be helpful to contact our Enforcement Division prior to filing a complaint to determine whether the activity presents an issue on which the FPPC has jurisdiction to act. For immediate assistance from the Enforcement Division, call 916-322-5660 or toll free at 866-ASK-FPPC.

B. Potential Anonymity of Complainant

A complaint sent to the FPPC is subject to the Public Records Act and public disclosure, except under very limited circumstances.

If you wish to file a sworn complaint and believe you have legitimate reasons for us to keep your identity as the complainant confidential, please call our offices (916-322-5660 or toll free at 866-ASK-FPPC) and ask to discuss the matter with an Enforcement Division attorney. The attorney will assess your status and advise you of the possibility of withholding disclosure of your identity. However, a court could ultimately make this determination.

After you discuss the matter with an FPPC attorney, if the attorney advises you the FPPC would make a claim to protect your identity, a sworn complaint form including an affidavit setting forth the basis of your claim will be prepared and sent to you to complete, sign under penalty of perjury and return to the FPPC.

C. Anonymous Complaints: Toll Free "tip line" 800-561-1861

If you do not want your name disclosed in connection with your complaint under any circumstances, you may call 800-561-1861 on Monday through Friday, 9:00 a.m. to Noon and 1:00 p.m. to 4:00 p.m., and make the complaint anonymously. Commission staff will evaluate your claims and has the authority to pursue a complaint on its own initiative.


III. Complaint Process

Within 14 days of receiving your sworn complaint, we will tell you how we intend to proceed. Be advised that unless the Chief of Enforcement deems otherwise, within three business days of receiving your sworn complaint we will send a copy of it to the person(s) you allege violated the law.


IV. Commission Action

A sworn complaint found to merit a full investigation will be assigned to the Enforcement Division staff, including an attorney, and an investigator or accounting specialist, or both. The Enforcement Division may obtain additional documents, interview witnesses, including the person alleged to have violated the Act, and issue subpoenas.

Once our Enforcement Division staff has fully investigated a complaint, they may ask the Commissioners to approve a settlement agreement in which the subject of the investigation agrees to pay an administrative fine or take other remedial action. The FPPC may also close the case for lack of supporting evidence or other reasons. Alternatively, the case may be appropriate for a formal process that can result in an administrative prosecution and a hearing before an administrative law judge and possibly the full Commission. Finally, the FPPC may levy fines, dismiss the case or take other appropriate action.

In some cases, the FPPC may prosecute a case by a filing a civil lawsuit in the courts. The case may also be referred to a district attorney or the Attorney General for criminal prosecution.


V. Complaint Form

To file a sworn complaint, please fill out and print the complaint form Complaint Form and mail it to the address on the form.

For more information, you may call the FPPC at 916-322-5660 or toll free at 866-ASK-FPPC (866-275-3772).
**********
So put up or shut up!!
Peter

Come on Peter. The FPPC is under staffed and over worked.

The FPPC is more likely to act on a request for guidance from Atherton than on a complaint from a private citizen.

Why don't you tell the City Council to "put up or shut up"?

Why don't you tell Jerry Carlson to "put up or shut up"?

I tell you what Peter. I'll send a complaint in to the FPPC if you do. If you put up too. I will shut up. Chances are the FPPC will be more likely to act if more than one request to investigate is submitted.

I await your response.

As an elected official I have asked the FPPC for a ruling on a potential conflict of interest issue involving myself and I received a prompt response.

My email to the members of the Town Council suggested that any individual member who wished to do so similarly ask for an FPPC ruling.

If any member of the public has a concern they may, following the procedure I outlined above, also request an FPPC ruling.

The FPPC is an extremely responsive group and it takes very little effort to contact them. Mr. Carpenter has already provided their contact information.

If you request a clarification from FPPC (as in the case of an elected official asking if they are conflicted), they reply within a few days. If you are lodging a complaint, they reply within a few weeks if it is not an overly complex issue.

It isn't difficult and it doesn't take long. Those are only excuses not to do it.

[Post removed; stick to the issue and don't attack other posters]