HomeMy WebLinkAbout2005-06-06 City Council Summary Minutes
Special Meeting
June 6, 2005
1. CONFERENCE WITH LABOR NEGOTIATOR ................................ 151
ADJOURNMENT: The meeting adjourned at 6:55 p.m. ........................ 151
1. Selection of Candidates to Interview for Utilities Advisory
Committee ........................................................................... 152
2. Proclamation Commending the Storm Drains for Palo Alto
Committee ........................................................................... 152
ORAL COMMUNICATIONS ............................................................... 152
4. Approval of a Budget Amendment Ordinance in the Amount of
$651,393 for Park Infrastructure Replacement; Approval of
Award of Contract to Del Conte's Landscaping, Inc. in the
Amount of $651,393 for Park Infrastructure Replacement
Including Irrigation and Maxicom Controller, Play Areas
Renovation, Pathways and Amenities Replacement at Juana
Briones Park (Capital Improvement Program Project PE-00107) .. 154
7. Merger Agreement Between Social Advocates for Youth (SAY) and Emergency Housing Consortium of Santa Clara County
(EHC) .................................................................................. 154
8. From Finance Committee: Recommendation to Accept the
Auditor’s Office Quarterly Report. ............................................ 155
9. Item removed at the request of staff. ...................................... 155
9A. (Old Item No. 3) Approval of a Budget Amendment Ordinance for
Settlement Agreement with Enron for a Total Amount of $21.5
Million with $18.06 Million of the Total Coming From the Electric
Enterprise Supply Rate Stabilization Reserve and $3.44 Million
Coming From the Gas Enterprise Supply Rate Stabilization
Reserve ............................................................................... 155
9B. (Old Item No. 6) Approval of the City Manager Appointment of
Russ Carlsen as Human Resources Director .............................. 157
11B. Report from CAO Committee .................................................. 159
06/06/05 99-149
11A. Report from CAO Committee .................................................. 160
10. Response to Grand Jury's Final Report, Transfer of Dedicated
Parkland Within the City of Palo Alto ........................................ 165
COUNCIL COMMENTS, QUESTIONS, AND ANNOUNCEMENTS ............... 169
ADJOURNMENT: The meeting adjourned at 10:30 p.m. ...................... 170
06/06/05 99-150
The City Council of the City of Palo Alto met on this date in the Council Chambers at 6:00 p.m.
PRESENT: Beecham, Burch, Cordell, Freeman (arrived at 6:15 p.m.),
Kleinberg, Morton (arrived at 6:15 p.m.), Mossar, Ojakian
ABSENT: Kishimoto
CLOSED SESSION
1. CONFERENCE WITH LABOR NEGOTIATOR
Agency Negotiator: City Manager and his designees pursuant to
the Merit Rules and Regulations (Frank Benest, Russ Carlsen)
Employee Organization: Local 715 Service Employees
International Union AFI-CIO (SEIU)
Authority: Government Code Section 54957.6(a)
The City Council met in closed session to discuss matters regarding labor negotiations, as described in Agenda Item No. 1.
Mayor Burch announced there was no reportable action taken.
ADJOURNMENT: The meeting adjourned at 6:55 p.m.
06/06/05 99-151
The City Council of the City of Palo Alto met on this date in the Council
Chambers at 7:04 p.m.
PRESENT: Beecham, Burch, Cordell, Freeman, Kleinberg, Morton,
Mossar, Ojakian
ABSENT: Kishimoto
SPECIAL ORDERS OF THE DAY
1. Selection of Candidates to Interview for Utilities Advisory
Committee
MOTION: Council Member Morton moved, seconded by Freeman, to
interview all the candidates for the Utilities Advisory Committee.
MOTION PASSED 8-0, Kishimoto absent.
2. Proclamation Commending the Storm Drains for Palo Alto
Committee
Mayor Burch presented the Proclamation to Chairperson Larry Klein.
Chairperson Larry Klein said approximately $20,000 was raised for the
Storm Drain Campaign. A surplus of $21.81 was presented to Mayor
Burch to be donated to City for the use in Storm Drain improvements.
No action required.
ORAL COMMUNICATIONS
Bob Lenox, 1745 Webster Street, spoke regarding the Palo Alto
Airport.
Gordon Reade, 2266 Bryant Street, spoke regarding the Palo Alto
Airport.
Anna Longwell, 3583 Ross Road, spoke regarding the Palo Alto Airport.
Douglas E. Kelly M.D., 877 Lincoln, spoke regarding the Palo Alto Airport.
Herb Borock, P.O. Box 632, spoke regarding the Chief Planning
Official.
06/06/05 99-152
Policewatch.org spoke regarding the recent Anarchist youth protest in
Palo Alto.
Alice Mansell spoke regarding the Palo Alto Airport.
Leighton Read, 375 Coleridge Avenue, spoke regarding the Palo Alto
Airport.
Neil Weintraut, Palo Alto Venture Partners, 151 Lytton Avenue, spoke
regarding the Palo Alto Airport.
Norman Carroll, 425 High Street #120, spoke regarding Lytton Plaza.
Stephanie Munoz, 101 Alma, spoke regarding use of tax money.
Larry Shapiro, 1901 Embarcadero, spoke regarding the Palo Alto
Airport.
Natasha Flaherty, 2106 Shirley Road, Belmont, spoke regarding the
Palo Alto Airport.
Vice Mayor Kleinberg reviewed the current Airport situation noting the
City and the County had differences regarding the future of the
Airport. The County will deliver a master plan on the economic viability
for both parties. The City Council would continue to educate the
community on the status of the Airport.
City Manager Frank Benest said the City received a letter dated April
29, 2005, requesting the Airport be kept open past the lease period
ending 2017. Application deadline was April 25, 2005. On May 5,
2005, he reported he could not meet the deadline. An offer was made
to the County, which was declined. Plans to determine the Airport‘s
future would be reviewed by Council.
MOTION: Council Member Mossar moved, seconded by Morton, to
approve the minutes of April 25, May 2 and May 9, 2005, as
submitted.
MOTION PASSED 8-0, Kishimoto absent.
Richard C. Placone, 601 Chimalus Drive, requested Item No. 3 be
removed from the Consent Calendar for discussion.
06/06/05 99-153
CONSENT CALENDAR
MOTION: Council Member Freeman moved, seconded by Beecham, to
remove Item No. 3 from the Consent Calendar to become Item No. 9A.
MOTION PASSED 8-0, Kishimoto absent
MOTION: Council Member Cordell moved, seconded by Kleinberg, to
remove Item No. 6 from the Consent Calendar to become Item 9B.
MOTION PASSED 8-0, Kishimoto absent.
LEGISLATIVE
MOTION: Council Member Beecham moved, seconded by Morton, to
approve Item Nos. 4, 5, 7, and 8 on the Consent Calendar.
4. Approval of a Budget Amendment Ordinance in the Amount of
$651,393 for Park Infrastructure Replacement; Approval of
Award of Contract to Del Conte's Landscaping, Inc. in the
Amount of $651,393 for Park Infrastructure Replacement
Including Irrigation and Maxicom Controller, Play Areas
Renovation, Pathways and Amenities Replacement at Juana
Briones Park (Capital Improvement Program Project PE-00107)
Ordinance 4872 entitled “Ordinance of the Council of the
City of Palo Alto Amending the Budget for the Fiscal Year
2004-05 to Provide an Additional Appropriation of
$651,393 from the Infrastructure Reserve into Capital
Improvement Program (CIP) Project Number PE-00107,
Briones Park Improvements”
Ordinance 4873 entitled “Ordinance of the Council of the
City of Palo Alto Amending the Budget for the Fiscal Year 2004-05 to Provide an Additional Appropriation of
$335,000 from the Infrastructure Reserve into Capital
Improvement Program (CIP) Project Number PF-01005,
Lucie Stern Community Center Improvements
ADMINISTRATIVE
7. Merger Agreement Between Social Advocates for Youth (SAY)
and Emergency Housing Consortium of Santa Clara County
(EHC)
06/06/05 99-154
COUNCIL COMMITTEE RECOMMENDATION
8. From Finance Committee: Recommendation to Accept the
Auditor’s Office Quarterly Report.
9. Item removed at the request of staff.
MOTION PASSED 8-0, Kishimoto absent, for items 4, 5, 7 and 8.
9A. (Old Item No. 3) Approval of a Budget Amendment Ordinance for
Settlement Agreement with Enron for a Total Amount of $21.5
Million with $18.06 Million of the Total Coming From the Electric
Enterprise Supply Rate Stabilization Reserve and $3.44 Million
Coming From the Gas Enterprise Supply Rate Stabilization
Reserve
Council Member Freeman asked what process was used to reach the
settlement, the criteria used to determine how reserves could be spent, and who could authorize the expenditures. She questioned why
the issue was being voted on when part of the funds had already been
paid out.
Senior City Attorney Grant Kolling said Council had approved the
settlement in late 2004. In March 2005, a formal vote was taken to
approve the details of the settlement and the information released to
the press on May 2, 2005. The Brown Act did not require any decision
be reported unless the settlement required approval from either a third
party or from the court. The Palo Alto Daily News requested disclosure
of information on June 6, 2005. Council voted 7-0 on the item and the
settlement was disclosed, as stated in the Press Release. The City
Charter or Municipal Code did not require Council to approve the $21.5 million payment, but a transfer of funds through a formal Budget
Amendment Ordinance (BAO) was required.
Director of Utilities John Ulrich gave an overview of the spending and
approval process of the expenditures. The funds were from the electric
and the gas reserves and broken down into supply reserves and
distribution reserves. The supply reserve was a mechanism to collect
money not spent in supply-related areas and used for contingencies to
modulate rate increases. The supply reserves could be used to pay for
litigated settlement.
Council Member Freeman asked whether staff could authorize the
expenditures or would it require Council’s authorization.
06/06/05 99-155
Mr. Ulrich said the expenditures were included in the budget and
brought forward as a recommendation.
Mr. Kolling clarified the City Attorney’s Office recommended the City
Council approve the $21.5 million settlement.
Council Member Freeman questioned post payment and why the
Budget Amendment Ordinance (BAO) was brought forward to the
public.
Administrative Services Director Carl Yeats said the timing of the
payment was based on authorization received from the City Attorney
to negotiate the settlement. The BAO was necessary to amend the
budget and to recognize the payment in 2004-2005 fiscal year. The
settlement disclosure was in each year’s financial statements since the
original transaction with Enron was terminated. It was in the financial
statement notes and recognized as an expense for the current fiscal
year.
Council Member Beecham said Sonoma County and Santa Clara
County were involved in the same situation. He asked the City
Attorney if he knew of other agencies that had been in the same
situation and had settled
Mr. Kolling said the only other agency he was aware of in negotiations
with Enron was the Metropolitan Water District of Southern California.
The cities of Roseville, Redding, and Riverside, and a municipal agency
in Utah had settled.
Council Member Beecham said apparently 90 to 95 percent were in
similar suits and had settled.
Mr. Kolling said he did not know the exact percentage but there were a
large number of companies that negotiated power, gas, and financial
contracts and other small entities relating to power transactions had
settled.
Council Member Beecham asked whether their settlements had been
made public.
Mr. Kolling said the information could probably be obtained from the
court website, but it was difficult to ascertain what Enron had filed
against the agencies and the amount of each settlement.
06/06/05 99-156
Council Member Beecham asked the City Attorney whether Palo Alto
was the only agency who had disclosed its settlement and if the others
have been kept confidential.
Mr. Kolling said he was not aware of any other settlements.
MOTION: Council Member Beecham moved, seconded by Mossar, to
approve a Budget Amendment Ordinance (BAO) for the purpose of the
settlement agreement between the City and Enron for a total amount
of $21.5 million, with $18.06 million of the total coming from the
Electric Utility Supply Rate Stabilization Reserve and $3.44 million
coming from the Gas Utility Supply Rate Stabilization Reserve
Ordinance 4874 entitled “Ordinance of the Council of the
City of Palo Alto Amending the Budget for the Fiscal Year
2004-05 to Provide an Additional Appropriation of
$21,500,000 for the Settlement Agreement with the Enron
Companies
Council Member Morton stated Enron had asked for a settlement of
approximately $65 million, which was a court mandated mediation,
and Palo Alto settled for approximately 30 cents on the dollar.
Mr. Kolling said that was correct. Based on a principal claim of $48
million, plus accrued interest since November 2001 over a four-year
period at a 9 percent interest rate under the contract, the total is
approximately $65 million. The mediation order required the
negotiated terms with Enron to be kept confidential.
Council Member Morton said because of the disclosure requirement
Palo Alto accepted, the terms of the agreement could not be disclosed.
Mr. Kolling said that was correct. Council was advised that negotiated
terms could not be discussed.
MOTION PASSED 8-0, Kishimoto absent.
9B. (Old Item No. 6) Approval of the City Manager Appointment of
Russ Carlsen as Human Resources Director
Council Member Cordell said she was in full support of Russ Carlsen’s
appointment. She questioned the auto allowance of $325 per month
when the individual would be residing in Palo Alto and the long-term
rental provision of $500 per month of up to 3 years with an annual
salary of $144,310. She asked the records reflect she was fully in
06/06/05 99-157
favor of Mr. Carlsen’s appointment but took exception to the two items
mentioned in the contract.
Assistant City Manager Harrison said the same auto allowance was
given to each department head. In terms of the housing subsidy, Mr.
Carlsen’s rental expense doubled when moving from Seattle into a
studio apartment in Palo Alto.
Council Member Morton said it was impossible to bring people here and
not provide a large housing supplement of low interest loans for
acquisition of a home or additional monies. He was in favor of the
appointment.
Council Member Freeman asked if a time limit could be placed on the
temporary living expense provision.
Ms. Harrison said the Management Compensation Agreement allowed
an indefinite extension. Mr. Carlsen had asked to limit it to one year
beyond the 48-month limitation but did not ask for a home loan or any
of the other available benefits stated in the contract. He chose to rent
rather than to ask for assistance in purchasing a home.
Council Member Freeman recommended approval of Mr. Carlsen’s
appointment and to modify Section 5.5.4 to limit the temporary living
expenses.
Vice Mayor Kleinberg questioned the authority to modify.
Mr. Benest clarified he followed the guidelines for benefits listed in the
Council-approved Management Compensation Plan, negotiated the
employment agreement, and made the appointment.
Council Member Freeman said Mr. Carlsen was an excellent addition to
the staff but raised concern regarding the continuation of perquisites
the City could not afford.
Council Member Beecham confirmed the continuous problem of having
to attract qualified people when affordable housing was difficult to find
in the Bay Area. He supported Mr. Carlsen’s appointment.
MOTION: Council Member Morton moved, seconded by Beecham, to
confirm the appointment of Russell Carlsen as City of Palo Alto Human
Resources Director.
06/06/05 99-158
Council Member Mossar said the hiring practices had changed. Senior
staff was being hired as “at will” employees, which meant they did not
have any rights to their job and could be terminated at any time. It
attracted top-notch people giving management the flexibility to run the
organization in the best way possible. The City would not be burdened
with long-term employees not carrying their weight. In exchange,
besides having the financial incentive to compensate for the high-
priced housing market, a good financial offer would need to be made
to have an individual take the risk to relocate knowing they could be
terminated and not have any rights to appeal.
MOTION PASSED 7-1, Freeman no, Kishimoto absent.
Council Member Freeman clarified she approved of Mr. Carlsen, but
her “no” vote was based on the financial situation surrounding his appointment.
Council Member Beecham stated the action was the appointment of
the individual.
Mr. Benest introduced Mr. Carlsen and said he had a Master’s Degree
in Management and Human Resources from the University of Redlands
and a Bachelor’s Degree from the University of Washington, extensive
management experience both in the public and private sector, he was
a former city manager and served as interim city manager and interim
department head in a number of cities. Mr. Carlsen’s appointment was
based on his outstanding performance as the City’s Interim Human
Resources Director for the past several months.
Mr. Russ Carlsen thanked the Council and stated it was a privilege to
be part of the City.
COUNCIL MATTERS
MOTION: Council Member Morton moved, seconded by Freeman, to
move Item No. 11 forward ahead of Item No. 10 and to handle Item
11B prior to 11A.
MOTION PASSED 8-0, Kishimoto absent.
11. Report from CAO Committee:
B) Approval of CAO Evaluation and Compensation Process for
2005-06
06/06/05 99-159
Council Member Mossar, Chairperson of Council Appointed Officer
Committee (CAO), said Item 11B was for Council to approve the
Evaluation and Compensation process for 2005-06. It was the second
year for the process. The Committee met in an open session with the
CAO’s, the Human Resources Director and John Shannon facilitated.
The 2004-05 process was updated making it compliant with the status
of the process. Staff would work with Mr. Shannon to amend his
contract and to complete the process by September 2005.
MOTION: Council Member Mossar moved, seconded by Morton, to
approve the CAO Evaluation and Compensation Process for Fiscal Year
2005-2006 and negotiate a contract with John Shannon, Facilitator.
Further, that the Relationship of Compensation and Performance, page
3, will be drafted in conformance with Item 11A.
Council Member Cordell referred to 11B on page 3, “annual general
salary increase that takes into account the cost of living, labor market
survey, and increases granted to other groups of City employees.” She
needed clarification on 11A where Council was asked to decide
whether CAO’s would receive the same control point increases as
management and professional employees.
Council Mossar said the section was under discussion and language
would need to conform to the situation when 11A was discussed.
Council Member Cordell clarified her concern was in section 11A and
supported 11B.
Council Member Mossar clarified her motion by saying Relationship of
Compensation and Performance, Segment Number 1, would be drafted
in conformity with Council’s decision on 11A.
MOTION PASSED 8-0, Kishimoto absent
RECESS: 8:35 p.m. to 8:45 p.m.
11. Report from CAO Committee:
A) Recommended Changes to Employment Agreement for
City Manager Frank Benest and for CAO Compensation
Mary Carlstead, 149 Walter Hays, spoke regarding the “Golden
Handshake” to CEOs in large corporations all over the country and the
receipt of unconscionable perks. Palo Altans were hurting with bond
issues, utility and fee increases, and certain groups of citizens
06/06/05 99-160
enduring financial difficulties. She sympathized with the City Manager’s
setbacks but felt the package being offered to the City Manager was
inappropriate. Setting such precedence was dangerous since it would
need to be done for every future city manager. The City would end up
with multiple properties.
Herb Borock, P.O. Box 632, questioned where an “at place memo”
came from regarding information on a housing loan, and a missing
date on Item 11A, Attachment A. He spoke of the employment
agreement being amended by a shared-equity agreement. He said
under the City Charter, an employment agreement could only be
amended through Council’s vote, and the Brown Act required an
agendized public session. It appeared the restated agreement was to
legalize an action and was done illegally. He referenced the City paying
part of the property tax with the implication it related to the Manager’s
retirement. He suggested linking the two: 1) the proposed $10,000 is
done as linked to a resignation by the end of the year; or 2) only to be
paid after resignation.
MOTION: Council Member Mossar moved, seconded by Beecham, to
approve recommended changes to the setting of CAO salaries as
follows:
a) All CAOs will receive the same Council-approved control
point increases as the City’s Management and Professional
Employees. The Council may also grant individual incentive
awards to each CAO based on performance.
b) The Council retains the discretion to grant special labor
market and/or internal equity adjustments to individual
CAOs. When comparing compensation either against the
labor market or internally this comparison will be done on
a total compensation basis. (Total compensation is defined
as the sum of all salary and benefits paid.)
Council Member Cordell said to support 1A meant giving automatic
increases to CAOs. Increases should be earned, reviewed individually,
and given through Council’s vote.
MOTION PASSED 5-3 Cordell, Freeman, Kleinberg no, Kishimoto
absent.
Council Member Mossar said she would work with the consultant to
adjust the language in the Performance Evaluation criteria to conform to the decision. The second portion of 11A was two-fold. She said the
06/06/05 99-161
house in question was co-owned with Mr. Benest. When Mr. Benest
was hired, he negotiated Council assistance in purchasing a home. The
City owned 57 percent and shared property tax obligations with Mr.
Benest. Both parties would reap proportionate share in the equity of
the home. Mr. Benest resides in the home at Council’s discretion. Palo
Alto was one of the first communities in the State of California to deal
with the issue of high property values and attracting highly talented
people into senior management positions.
MOTION: Council Member Mossar, seconded by Beecham, to approve
the City Manager Agreement: Ability to Stay in his Home After
Retirement with conditions as follows:
a) City Manager may stay in his home after retirement until
December 31, 2017 or until his children have graduated or left Palo Alto public schools whichever occurs first.
b) The existing provisions regarding sale of home (Section
6.9, Employment Agreement) remain in effect if
termination occurs prior to retirement.
To approve the City Manager: Property Tax Payment as follows:
The City Manager may elect to have the City pay its proportionate
share of property taxes, determined based upon the City’s equity
share.
1) In exchange for electing to have the City’s pay its
proportionate share of the property tax, the City Manager’s
base salary will be reduced by $10,000. This will have the
impact of making the tax payment approximately cost neutral to the City.
2) The City’s share of property tax would be added to the
Total Compensation calculation for the City Manager.
Council Member Morton gave an overview of the benefits in co-
investing with the City Manager. He said if the $900,000 the City
invested as co-owner in the property were left in the investment
portfolio, it would have earned about $35,000 annually. The City’s
investment in the property accelerated beyond the 4 percent and had
no loss in terms in resources by making it possible to get one of the
premier managers in the State. It was less expensive for Mr. Benest to
have the City pay the legally obligated share of the property taxes.
Currently, the City was not paying any property tax. It was not a loss
06/06/05 99-162
to the City; it was exchanging dollars. He urged his colleagues to
support the provision.
Vice Mayor Kleinberg did not support the amendment for the following
economic and financial reasons: 1) it created a precedence of making
the same offer to other CAOs; 2) bad timing when employees’
livelihoods were at stake; 3) projected a mixed message to public; and
4) leveraged investments for future executives.
Council Member Cordell echoed Vice Mayor Kleinberg’s concerns and
agreed with Ms. Carlstead’s comments. She said she was supportive of
the City Manager’s family but it would not be in the best interest of the
City to adopt the recommendation.
Mayor Burch asked what percentage the loan represented of the total
investment portfolio.
Council Member Morton said it was less than a third of 1 percent.
Council Member Freeman echoed Vice Mayor Kleinberg and Council
Member Cordell’s comments. She asked what the ramifications were
on total compensations based on City paying the taxes.
Council Member Mossar said it was included in total compensation and
defined as the sum total of salary plus all benefits.
Council Member Freeman asked how the City Manager benefited by
the $10,000 in taxes being paid by the City and deducted from his
salary.
Council Member Morton said it did not impact the City budget.
Council Member Freeman said she had several questions that were left
unanswered and would not support the motion.
Council Member Beecham said in terms of the City’s financial situation
and budget issues, the recommendations were cost-neutral and
calculated to have no impact on the budget.
Council Member Ojakian said by the City paying the $10,000 in taxes
and the City Manager’s salary reduced by the same amount, the City
would save money in the long-term. The base-pay would be less in
subsequent years and the increases would be against smaller
amounts.
06/06/05 99-163
Council Member Mossar said that was correct and the benefit liability
would be reduced.
Council Member Ojakian raised concern in providing the City Manager
with a home after he terminated from the City and living in the home
rent-free.
Council Member Mossar spoke regarding the process and contract
negotiations. The recommendations were contract negotiations
between the CAO Committee and Mr. Benest through a negotiator. If
the terms were not acceptable, Council could request the CAO
Committee to renegotiate the terms with Mr. Benest.
Mr. Benest said upon retirement, he would continue to pay the
mortgage to the City and the property would continue to appreciate in
value for the City.
Council Member Ojakian asked if the full mortgage was paid by Mr.
Benest.
Mr. Benest said he paid the full mortgage to the City. He said he and
the City were equity-partners on the house and had an appreciating
value for both partners. There was a loan where he paid the City
portfolio rate plus a quarter percent. He would continue to pay the full
mortgage after retirement and the City would continue to receive the
mortgage payment and the house would continue as an appreciating
investment for the City.
Council Morton commented on the issue of retention. He said the CAO
Committee negotiated a package that would guarantee a top-rate city
manager for as long as he chooses to work. He clarified the earning power of the City equity share would earn 4 percent per year by
placing the $900,000 back into the investment portfolio and the
appreciation would meet the investment goal.
Council Member Ojakian said he had no problems with the investment
portion. His issue was in the perception of having a former employee
living in a City-owned property.
Council Member Morton said the trade-off was the investment
continued to earn its appreciation.
Council Member Mossar added the CAO Committee wanted to ensure
that Mr. Benest remained with the City.
06/06/05 99-164
MOTION PASSED 5-3 Cordell, Freeman, Kleinberg no, Kishimoto
absent.
REPORTS OF OFFICIALS
10. Response to Grand Jury's Final Report, Transfer of Dedicated
Parkland Within the City of Palo Alto
City Attorney Gary Baum said the Civil Grand Jury Report contained
three findings. The policies and procedures were reviewed regarding
Dedicated Parkland and the interaction with the Palo Alto Unified
School District (PAUSD). The recommendations were: 1) to adopt
policies to govern interactions with other public entities that use City
parks; 2) to adhere to the City Charter as it relates to the transfer
disposal of abandonment or discontinuance City parkland; and 3) any
reconstruction, development adjacent to the City parkland, prior to
being handled, should have a certified survey. The City agreed to all
three recommendations. The findings were: 1) there was an ad hoc
approach to the agreements with the PAUSD and others using the City
parkland; 2) the City’s approach on Rinconada Parkland transfer; and
3) the PAUSD had located and constructed buildings on dedicated
parklands. The City was required under the Penal Code to respond to
the Grand Jury and the presiding judge. A recommended response was
prepared to agree in adopting all three recommendations and finding
them to be prudent. The City was in disagreement with finding No. 2
regarding the parkland swap, and Council could make adjustments
where they deemed fit.
Betsy Allyn, Willmar Drive in Greenacres II, said the joint use
agreement should explicitly specify the terms and use provision and
the general public’s access use. The City should abide by its Charter
and allow citizens access to their park, as dictated by the Park
Dedication Ordinance (PDO). She said the PAUSD had exclusive use on
signs keeping citizens out of the park and had destroyed two tennis
courts on land they did not own. The PDO stated the City needed to go
to the public prior to making changes to the parks.
Tom Jordan, 474 Churchill Avenue, spoke regarding his disagreement
with Recommendation #1 and the finding in Recommendation #2. He
said the City’s relationship with Terman School and Terman Park was
an error and needed to be corrected. The City agreed to do better in
the future. Recommendation #2 spoke of dedicated parkland exchanges occurring without going to the voters. He asked that a
report be redrafted by the City Attorney and returned to Council with
an appropriate response.
06/06/05 99-165
Enid Pearson said she was involved in drafting the Park Dedication
Ordinance (PDO) forty years ago. She said it was depressing to know
that staff had the ability to interpret the intentions of the authors and
the voters of the PDO. She asked that the changes be placed before
the voters.
Emily Renzel, 1056 Forest, concurred with the three prior speakers.
She was concerned about moving forward instead of going backwards.
The language in the Grand Jury Report quoted the Charter, “in an
election and any related procedures, presumably election procedures,
under Article VIII shall conform to the provisions set forth in general
law as it existed January 1, 1965.” She said elections and procedures
were extracted, not exchanges and other provisions of that law. She
urged the Council to go forward and respect the Charter Amendment.
Robert Moss, 4010 Orme Street, said the Charter clearly stated the
park use was open to all people at all times. Neither Council nor
PAUSD could restrict the use of the Terman Park during school hours.
He was in disagreement with the draft response to the Grand Jury.
Herb Borock, P.O. Box 632, spoke of his disagreement with the draft
response to the Santa Clara County Grand Jury. He said the response
should be consistent and should state disagreement with
recommendation No. 2. Staff should redraft the response.
Richard Placone spoke on the policy and plan for allowing residents to
use the Terman tennis courts. He said it was not working unless it was
for the total convenience of who was at the front desk at Terman
School.
Council Morton read an excerpt from the Grand Jury Report regarding
public access to portions of Terman Park not being used by Terman
Middle School. He said although the public was in disagreement of how
free the access was, in terms of whether or not the right of the public
to access of the parklands, the Grand Jury had not concluded that the
right had been denied.
Mr. Baum said it was part of the narrative, but the Grand Jury appears
to have concluded that as long as park access to Terman Park was
included, it did not constitute a violation of Article VIII of the Charter.
Council Member Morton said the City’s agreement ensured the right of
the public to access, even though the implementation may be
imperfect. He accepted the draft response that the City’s Charter did allow contiguous trades. He emphasized supporting and accepting the
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response. Surveys should have occurred in the past and should
definitely occur in the future. The City should never be in the same
position again in having to rectify an encroachment.
MOTION: Council Member Morton moved, seconded by Ojakian, to
approve the proposed response to the Grand Jury’s Final Report
regarding Transfer of Dedicated Parkland with the City of Palo Alto.
Council Member Ojakian said the Grand Jury Report indicated several
City departments had been interviewed but not the City Attorney’s
Office and asked if it was correct.
Mr. Baum said it was and he was not aware that various departments
had been contacted.
Council Member Ojakian raised concern regarding a disagreement
between the former City Attorney and the current City Attorney as
outlined on page 5 of the Report. He said he had e-mailed Mr. Calonne
regarding his dealings with Arastadero Preserve in early 1990’s. Mr.
Calonne reminded him of a memo the Grand Jury did not have, which
was released to Council in June 2003. It indicated the State law
attached as an appendix to the Charter since 1965 authorizing the City
Council without an election to exchange minor portions of the parkland
for privately held contiguous land of equal or greater area or value.
The procedural features were intended to be incorporated into the
Chapter and found no legislative history to the contrary. He felt Mr.
Calonne’s statements supported the current City Attorney’s opinion
and although the Grand Jury did not have the document, he indicated
there could be a land swap. He supported Mr. Baum’s comments on
finding No. 2 from June 2003. He asked the memo be placed in the
records.
Council Member Freeman asked what happened when there is
disagreement in a Grand Jury finding.
Mr. Baum said the Grand Jury was a respected entity, looked to for
guidance and was highly influential. Their findings were factual and
could be accepted or rejected. They examined what occurred, provided
the guidance on what needed to be done, and the City had accepted
all three recommendations but was in disagreement with one of the
findings. The City was not penalized for rejecting a finding but
additional action could be taken if a recommendation was rejected.
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Council Member Freeman asked whether the agreements and
recommendations required reconsideration of the events leading to the
investigation.
Mr. Baum said that was not his reading in the Report.
Council Member Freeman asked the City Attorney if his interpretation
of the Report was from this point on any occurring situations the City
would follow the said recommendations.
Mr. Baum clarified the recommendations were to create and enforce a
policy on all future agreements and the agreements to follow the
Charter for any transfer, disposal or abandonment, and a certified site
survey be conducted on construction, reconstruction, or development
adjacent to the parks to prevent any future encroachments.
Council Member Freeman asked whether land-swapping was explicitly
stated in the City’s Charter.
Mr. Baum said as stated in the Report and in Mr. Calonne’s memo of
June 2003, the opinion was land-swapping was allowed for minor
portions. The City has agreed to follow the Charter and all
recommendations as stated in the Report.
Council Member Freeman said it appeared the public was concerned
that there were actions taken regarding the use of public parkland and
believed it required a vote of the public. It was the basis for taking the
issue to the Grand Jury. The recommendations did not explicitly state
if a situation occurred again there would be a vote of the public. Was
she correct in her understanding.
Mr. Baum said in the event the same situation occurred, it would be
analyzed based on the facts and the City would follow the Charter.
Council Member Freeman asked for an amendment that the City
Attorney rework the verbiage in the response to include the voting
portion of the Charter, as a potential solution.
Council Member Ojakian said he would not accept Council Member
Freeman’s amendment based on Council Member Morton’s original
statement to involve surveys in future situations.
Council Member Cordell said she was not made aware of Mr. Calonne’s
memo and apparently it had not been made known to the Grand Jury.
She asked the memo be presented to the Grand Jury to see if it would
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have any impact on finding No.2. The Grand Jury had relied on the
previous City Attorney’s opinion and weighed heavily on their
response. Her interpretation of the Charter was even minor exchange
should be approved by the electorate.
Mr. Baum said he could include Mr. Ariel Calonne’s 2003 memo in
response.
INCORPORATED INTO MOTION WITH THE CONSENT OF THE
MAKER AND SECONDER to include as an attachment to the response
letter the memo from previous City Attorney Ariel Calonne on June 19,
2003.
Council Member Ojakian apologized for his oversight for not passing
the memo on to his colleagues.
Council Member Cordell read the following excerpt from Mr. Calonne’s
memo: “I believed there was no legislative history to the contrary that
is that exchanges might not be okay, but believe that it was important
for the Council to indicate its interpretation of the Charter by enacting
the implementing Ordinance before moving ahead on any park
exchange.” She questioned whether an Ordinance was implemented.
Mr. Ojakian said an Ordinance was enacted to make the exchange.
Council Member Cordell said from what she heard in terms of
legislative intent, she urged her Colleagues to not approve the
disagreement with the finding.
Vice Mayor Kleinberg encouraged her colleagues to not quickly dismiss
the Grand Jury’s finding as to how the City respected the Charter and
to not repeat the action in the future.
MOTION PASSED 5-3, Cordell, Freeman, Kleinberg no, Kishimoto
absent.
MOTION: Council Member Ojakian moved, seconded by Morton, to
direct staff to bring an informational item regarding minor parkland
swaps to Council so it can be decided whether it should be agendized.
MOTION PASSED 7-1, Cordell no, Kishimoto absent.
COUNCIL COMMENTS, QUESTIONS, AND ANNOUNCEMENTS
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Council Member Ojakian noted the work of Council Member Beecham
on Utilities and stated the City was fortunate to have him serve.
CLOSED SESSION
Mayor Burch announced there would be no closed session held that
evening.
ADJOURNMENT: The meeting adjourned at 10:30 p.m.
ATTEST: APPROVED:
City Clerk Mayor
NOTE: Sense minutes (synopsis) are prepared in accordance with Palo
Alto Municipal Code Sections 2.04.180(a) and (b). The City Council
and Standing Committee meeting tapes are made solely for the
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City Council and Standing Committee meeting tapes are recycled 90
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