|
Getting your Trinity Audio player ready...
|
A series of high-profile Mountain View City Council votes to help establish a new public school campus within city limits is being challenged on the grounds that Councilman John McAlister should have recused himself.
In a complaint letter sent to the city earlier this week, Mountain View resident Ellyn Berner alleges that McAlister had a conflict of interest due to owning a stake in the Stepping Stones Preschool, which is located at leased property at the the Los Altos School District’s Covington Elementary School campus. This side business was providing McAlister at least $10,000 in annual income, according to his 2008 financial disclosure form. McAlister did not list the business in his subsequent annual reports.
Based on his preschool business, McAlister should have removed himself from any vote involving Los Altos School District (LASD), Berner said.
“Our city (is providing) millions and millions of dollars and building rights for LASD while not having full impartiality from Mountain View City Council,” Berner said in the letter. “Any action taken by the City Council involving LASD where Mr. McAlister participated in the discussions or voted should be considered void.”
McAlister told the Voice that he disputes the allegations, saying he had conferred with the city attorney prior to the votes on a new LASD campus. City legal staff told him he didn’t need to report his stake in Stepping Stones Preschool because it was located outside the city’s jurisdiction, he said.
The Los Altos School District enrolls Mountain View residents and its boundaries include several Mountain View neighborhoods.
McAlister said he believes the complaints were a new tactic by Bullis Charter School advocates to try to scuttle the 10th campus plan.
“I don’t believe there’s any conflict based on a thorough understanding of the rules,” he said. “This is the Bullis Charter School trying to eliminate a vote that would have prevented them from being relocated.”
In her complaint, Berner does not elaborate on her motive for filing the letter, which she forwarded to the Santa Clara County District Attorney’s office and the state Fair Political Practices Commission. She is not listed as a licensed attorney by the California State Bar, but her letter appears to be written by a lawyer, with numerous citations of state law, city code and case law precedents.
She did not immediately respond to emailed questions from the Voice.
In recent months, the council has taken multiple steps to facilitate the purchase of land for a new school campus near San Antonio Road. Earlier this year, the council approved the sale of about $80 million in development rights to help defray the purchase price of the expensive land. An additional $23 million would come from Mountain View’s park funds, in exchange for use of the new school’s field.
In June, the council approved the district’s plans to use that financial support to help purchase 9.6 acres of the San Antonio Shopping Center, land currently occupied by Kohl’s and several restaurants. During that discussion, three council members wanted to set conditions on what kind of school could be built, in light of the city’s significant financial assistance. Among their stipulations, they wanted a commitment from LASD that the site would be used for a new neighborhood school, not for relocating Bullis Charter School from Los Altos.
McAlister opposed those conditions, swinging a 4-3 vote to approve the land acquisition.
If complaints over McAlister’s conflict of interest are found to be valid, it could force the council to revisit a string of decisions on the proposed school site.
City Manager Dan Rich acknowledged the city has received the complaint letter, but he declined to comment on its arguments. The merits of the letter could be considered only by the state Fair Political Practices Commission, he said.
Folks, let’s keep calm and examine the facts here. There is clearly an issue to be reviewed if the city attorney was consulted in the first place. Mr McAlister certainly seems to have benefited from a lease for a private school on public property. Let’s have the experts determine the proper outcome and next steps.
Dear The Business Man:
McAlister is correct.
Please choose another pseudonym more in line with your analysis.
It’s the Fair Political Practices Commission that provides oversight and which you should read.
There’s more history to this. Is there child care being planned for the new school site? LASD has child care at every elementary school for the students of that school. Stepping Stones used to be at Blach Jr High. They got kicked out to make room for 1/3 of the charter school. Then the district moved them to Covington Elementary School which already had 2 other child care facilities on site. Covington has 16 acres of land. Ensuring that land remains available to lease to Stepping Stones is in the financial interest of McAlister. It doesn’t matter where his business interests lie. If he’s giving subsidized land to any entity and that entity is leasing different land to him, it still seems to matter to me.
It’s a valid concern. The city attorney may have gotten it wrong.
LASD has childcare at every elementary school, but some are only for enrolled students. At Gardner Bullis, Oak, Covington, and Loyola various different private school operators conduct day time services on LASD land. These leases are used to bring money to LASD, much like Mountain View Whisman leases out entire campuses to Google and the German International School with sublease to another private school too.
Suppose a councilman had an interest in Google or the German International School and the district involved that was getting the free land on the city dime was MVWSD. It also seems to be problematic to me. This is going to come up because MVWSD is crying poor and asking for city land for the North Bayshore area.
at the end of the day John McAlister should have heeded the advice I was given long ago when I first worked at HP,
1. you should avoid even the appearance of a conflict of interest.
2. if whatever you are involved about would be reported in the news what would your reaction be
he should have disclosed his involvement with the pre-school, if he thought there was no conflict then why not disclose his involvement?
To The Business Man:
Please limit yourself to one blog comment per article…PLEASE!
Thank you.
I disagree with the above poster. Please keep replying with these informative posts. Frequently you are the only one responding to these various posters with facts and details.
The last thing e need is more unsubstantiated posts with specific (my meth addict tenant, renters are reprehensible, they’re ruining my revenue stream) yet unverifiable hooro stories.
If you can’t be bothered to read the business man’s posts, maybe you should be watching TV instead.
A quick read of the Santa Clara University Ethics Center web site dispells much of what has been written in this blog.
Councilmember McAlister has done nothing improper and the appearance of impropriety does not make his actions unethetical or immoral.
The most important element is we want a PARK!
A school is an excellent public partnership to accomplish this GOAL whether it is public, magnet or charter.
The 1000 ft memo refers to Cooper Park and MVSD. The current issue relates to LASD. Totally different. MacAlister sought counsel and accepted it. Technically the issue refers to a group that is outside city limits but does exert some control over land in MV. With respect to students, the issue is irrelevant since council does not control school issues. My own personal take would have been to recuse my self due to the appearance of a conflict rather than an actual conflict.
“McAlister said he believes the complaints were a new tactic by Bullis Charter School advocates to try to scuttle the 10th campus plan”
As a BCS parent, I really don’t appreciate this accusation from an elected city council member of my community. Seems guilty to me of conflict of interest if he needs to point his finger.
You can bet that LASD staff knew full well that they had sway with McAlister due to his stake in a preschool which is their tenant.
I don’t read the text as guaranteeing McAlister consulted the city attorney about the specific issue. It seems that well before the issue came up, the city attorney told him he didn’t need to list Stepping Stones in his financial disclosure. That’s a different matter. Just because a business interest doesn’t need to be disclosed in a routine filing, that doesn’t also mean that there will never ever be a conflict of interest. It’s not clear that the situation was explained again to the city attorney once it became a source of conflicted interests. There’s not only this issue of whether or not to hand LASD all the funding from the TDR schemee. There is the issue of whether the city should represent its residents to the extent of putting conditions on that TDR funding. It should be disclosed that McAlister has a business which depends on them for real estate, at the same time as they (LASD) are coming up with this truly questionable idea to buy additional land, NOT operate a neighborhood school in Mountain View, and maintain rentable real estate elsewhere that could be used for the charter school they propose to place in an unsuitable location replacing Kohl’s. It’s a material conflict of interest, not a theoretical one. It invalidates the vote plain and simple, and the city is likely to admit to this pretty soon now. Ooopsie.
As for the source of the complaint, there are no small number of residents of Mountain View who are ticked off by this idea of that land not being used for a neighborhood school. Some are lawyers. Not really necessarily someone who is a supporter of the charter school. Equally or more likely someone in Mountain View annoyed by the LASD selfishness regarding viewing Mountain View kids as inferior and needing to be salted out among multiple school sites so as not to sully the LASD reputation.
With school age population decline predicted in Los Altos for the next 25 years, the only source of any new kids is that San Antonio area of Mountain View. Even there, the fraction of the residents who have kids in school is going to be way less than before. The charter school is set to expand to 1500 kids. The real truth is that the likelihood is that over 5 years the charter school will grow to be 30% of the total enrollment in LASD+charter. So LASD’s hare brained scheme is to foist off 30% of their clients on 1 single new site in Mountain View (Kohl’s).
So in all of this, I won’t lose any sleep about the kibosh being put on the whole idea. It wasn’t going to be a good faith effort by LASD anyway. LASD doesn’t truly need more land for at least the next 30 years.
Either way, the guy should have recused himself from voting on this matter with LASD. I agree with Do the Math. Precisely.
Has anyone even thought to ask how the Cities of Los Altos and Los Altos Hills work with LASD to share the public lands LASD controls? I don’t think either City’s P&R department has a single example of using LASD fields. Further, I am pretty sure the campuses are completely closed to public use during the school year from 7:30 am until 4:30 pm monday through friday.
Mountain View residents and council members better get it in writing if they think they will have some sort of public access to the “park/fields” they are contributing to.
And, it should be noted, the school district makes a fair amount of money renting out the fields to AYSO and others on the weekends. It is a noisy necessity as fields space is so scarce throughout the area. AND, they also host their own weekend events on school grounds like walk-a-thons, halloween festivals and Jr. Olympics. Not exactly sure how often most school fields or other facilities are open, unused and available for John Q. Public to roam around and enjoy.
You hijack every subject with your endless, numerous comments. I simply skip over anything you write, because you over-kill every subject. I realize you have some knowledge that you want to share, but if you just cut it down to a readable summary, you might get a few more of us to read what you write. Almost every time there is a new post by someone, you seem to believe you are expected to reply. News Flash: you don’t own this site and it’s annoying you seem to think you do.
The way it stands now, you come across as an self-important “know it all” who truly beats every subject to death.
Business Man – the minute we see your name most of skip your post entirely. You need to learn to control your “speeches” as you are alienating most readers. Pontificating on every subject that arises is not impressive, it’s off-putting.
BCS should be shut down for good.
They ripped apart the LA community. Now coming to MTV.
I’m sick of even reading the dramas they created.
Yes, you are exactly right. BCS should be shut down so LASD can figure out what to do with a superfluous 900-1200 kids. It would be at a financial loss to the district if BCS disappeared. Every time a BCS hater wishes the charter school would go away, the consequences would be harsh. The existence of BCS contributes to the decline of enrollment at LASD schools which makes LASD parents happy to have smaller class sizes. LASD does not share the taxes w/ BCS that BCS parents pay. So more $ in the pockets of LASD. So yes, keep wishing that BCS should be shut down for good.
Why hasn’t City Council Member John McAlister posted a statement of his his financial interest in the preschool right here on this story? What seems to be the problem McAlister?
If any if this is slightly true McAllister should creep out it the same back door Tom Means ran out in order to save face and avoid impeachment.
Why can’t we have good, honest people leasing or local government?
Sick of it!
This quote is very interesting:
“McAlister told the Voice that he disputes the allegations, saying he had conferred with the city attorney prior to the votes on a new LASD campus. City legal staff told him he didn’t need to report his stake in Stepping Stones Preschool because it was located outside the city’s jurisdiction, he said.”
Since when does conflict of interest get determined by whether it is in the “jurisdiction” of a city. The City Legal Team simply says if the City Council member has a conflict of interest “outside the city border” that it is not a conflict of interest. What kind of logic is this?
What the legal team is in effect saying is if a city council member is involved in any city business, but the company or interest is not in the city, the city council member cannot have a conflict of interest even if that member will either directly or indirectly be benefited by the decision? That almost sounds like the City Legal Team is instead of upholding the laws regarding conflict of interest, and instead is acting as a “defense attorney”.
That seems to indicate that maybe the “City Legal Team” itself could be found as having a conflict of interest itself. Whether the City Legal Team will uphold the laws, as required when they took their oath of office which is required by the City Charte defined here:
Section 704. – Oath of office.
Every officer of the city, before entering upon the duties of that person’s office, shall take the oath of office as provided for in the constitution of this state, and shall file the same with the city clerk.”
In fact the State law requires this to be done found here(https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB630)
That oath states:
I, (City Employee), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I WILL BEAR TRUE FAITH AND ALLEGIANCE to the Constitution of the United States and THE STATE OF CALIFORNIA; that I take this obligation freely, without any mental reservation or PURPOSE OF EVASION; and that I will well and faithfully discharge the duties upon which I am about to enter and during such time as I hold the office of (City Position)”
Given that the State Constitution require equal enforcement of the laws found here (https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=I):
“(a) A person may not be deprived of life, liberty, or property WITHOUT DUE PROCESS OF LAW OR DENIED EQUAL PROTECTION OF THE LAWS; …”
And:
“(b) A CITIZEN OR CLASS OF CITIZENS MAY NOT BE GRANTED PRIVILEGES OR IMMUNITIES NOT GRANTED ON THE SAME TERMS TO ALL CITIZENS. PRIVILEGES OR IMMUNITIES GRANTED BY THE LEGISLATURE MAY BE ALTERED OR REVOKED.”
This is exactly what the City legal team is doing. They are granting to this City Council member more rights based on a completely invalid concept. Thus these employees can be found as violating their oath and the California Constitution. Someone in this office needs to do much better reasoning than this.
In response to @TheBusinessMan you said:
“McAlister is correct.”
That has not been determined yet. In fact that is under consideration by the Santa Clara District Attorney and the California Fair Political Practices Commission. You have not provided any case precedence or statutory law that proves this either. You said:
“Please choose another pseudonym more in line with your analysis.”
Why, my analysis was simply an observation that anyone could have uncovered. What about it nor my presentation warrants that my name be stricken? You said:
“It’s the Fair Political Practices Commission that provides oversight and which you should read.”
Well, again, so far it has not made a statement, but I will look into doing some research regarding any case like this one.
This what they say (http://www.fppc.ca.gov/learn/conflicts-of-interest-rules.html):
“Conflicts of Interest Rules
Under the Act, a public official has a disqualifying conflict of interest in a governmental decision IF IT IS FORESEEABLE THAT THE DECISION WILL HAVE A FINANCIAL IMPACT ON HIS OR HER PERSONAL FINANCES OR OTHER FINANCIAL INTERESTS. In such cases, there is a risk of biased decision-making that could sacrifice the public’s interest in favor of the official’s private financial interests. TO AVOID ACTUAL BIAS OR THE APPEARANCE OF POSSIBLE IMPROPRIETIES, THE PUBLIC OFFICIAL IS PROHIBITED FROM PARTICIPATING IN THE DECISION. “
That seems very clear to me it goes on to say:
“Disqualifying Financial Interests
There are five types of interests that may result in disqualification:
Business Entity. A business entity in which the official has an investment of $2,000 or more in which he or she is a director, officer, partner, trustee, employee, or manager.”
I do not know whether McAllister is an officer of Stepping Stones but the website found here (http://stepping-stones-preschool.com/aboutus.php) states it is “Owner Operated”. Thus McAllister must be an officer of the Company. It also went on to say:
“Income. An individual or an entity from whom the official has received income or promised income aggregating to $500 or more in the previous 12 months, including the official’s community property interest in the income of his or her spouse or registered domestic partner. “
Well since there was a documented history of him receiving as much as $10,000. And being owner of the school, that would me he is required to receive a portion of the earnings of the school itself. To me the likelihood of him receiving less than $500 since 2008 would be very small. A subpoena of his financial records will clear this up. It went on to say:
“Gifts. An individual or an entity from whom the official has received gifts aggregating to $470 or more in the previous 12 months.”
Again a subpoena of his fnancials will clearly be able to prove if this in fact has not been violated. It went on to say:
“Personal Finances.The official’s personal finances including his or her expenses, income, assets, or liabilities, as well as those of his or her immediate family. “
This clearly would be a problem, because it is clearly an asset, it clearly provides income, and it may also impact more than just him, but his family as well. The page goes on to say:
“Disqualifying Financial Impact or Effect
“If a decision may have a financial impact or effect on any of the foregoing interests, an official is disqualified from governmental decision if the following two conditions are met:
The financial impact or effect is foreseeable, and
The financial impact or effect is significant enough to be considered material.
Well, in this case it appears prima facie that thse conditions have occurred here. It makes you wonder what the City Legal Staff was reading to make their determination? It goes on to say:
“Generally, a financial impact or effect is presumed to be both foreseeable and material if the financial interest is “explicitly” or directly involved in the decision. A financial interest is explicitly involved in the decision whenever the interest is a named party in, or the subject of, a governmental decision before the official or the official’s agency. “
Here a prima facia case is very apparent. It goes on to say:
“If the interest is “not explicitly involved” in the decision, a financial impact or effect is reasonably foreseeable if the effect can be recognized as a realistic possibility and more than hypothetical or theoretical. A financial effect need not be likely to occur to be considered reasonably foreseeable. “
Again, this seems prima facie to be occurring. It goes on to say:
“However, for interests “not explicitly involved” in the decision, different standards apply to determine whether a foreseeable effect on an interest will be material depending on the nature of the interest. The FPPC has adopted rules for deciding what kinds of financial effects are important enough to trigger a conflict of interest. These rules are called “materiality standards,” that is, they are the standards that should be used for judging what kind of financial impacts resulting from governmental decisions are considered material or important. “
That makes you try to find these standards which I will look into later. The page also states:
“There are too many materiality standards to adequately review all of them here. To determine the applicable materiality standard, or to obtain more detailed information on conflicts, an official may consult the FPPC’s guide to Recognizing Conflicts of Interest. Alternatively, the official should seek assistance from agency counsel or the FPPC anytime the official has reason to believe a decision may have a financial impact or effect on his or her personal finances or other financial interests.
Exceptions
Not all conflicts of interest prevent a public official from lawfully taking part in the government decision. There are two limited exceptions to the conflict of interest rules:
The Public Generally Exception. A public official is not disqualified from a decision if the effect on the official’s interests is indistinguishable from the effect on the public. “
McAllister will have to prove that the interests were in fact “indistinguishable” under the legal standards and it says:
“Legally Required to Participate. In certain rare circumstances, a public official may be randomly selected to take part in a decision if a quorum cannot be reached because too many officials are disqualified under the Act. “
That did not occur here, so that one is of no use. It went on to say:
“Exceptions must be considered with care. A public official should contact agency counsel or the FPPC to determine if an exception applies. “
Which appears to not have occurred here. McAllister only contacted the City Attorney, and NOT THE FPPC before participating in this decision. This would be a material violation. Thus the page finally states:
“Recusal Requirements
An official with a disqualifying conflict of interest may not make, participate in making, or use his or her position to influence a governmental decision. When appearing before his or her own agency or an agency subject to the authority or budgetary control of his or her agency, an official is making, participating in making, or using his or her position to influence a decision any time the official takes any action to influence the decision including directing a decision, voting, providing information or a recommendation, or contacting or appearing before any other agency official. When appearing before any other agency, the official must not act or purport to act in his or her official capacity or on behalf of his or her agency.”
He did not do this regarding this decision, a very serious situation, it goes on to say:
“Certain officials (including city council members, planning commissioners, and members of the boards of supervisors) have a mandated manner in which they must disqualify from decisions made at a public meeting (including closed session decisions) and must publicly identify a conflict of interest and leave the room before the item is discussed. “
McAllister did not do this from what I read here. Thus he is in a serious situation here. It goes on to say:
“While there are limited exceptions that allow a public official to participate as a member of the public and speak to the press, the exceptions are interpreted narrowly and may require advice from your agency’s counsel or the FPPC. ”
Again McAllister appears to have not gotten advice from the FPPC. The story only indicated he soaught legal advice from the City.
Something doesn’t look to good here.
If McAlister has an interest in Stepping Stones and they lease land from LASD, His financial interests lie with any lease at an existing school campus, no? Building a new campus is strictly between LASD and Mountain View in my humble opinion. When / if a lease is ever discussed between LASD and this new campus and Stepping Stones, then a clear conflict of interest will exist. He does not have any influence on business decisions that LASD makes unless it is the discussion of a lease with Stepping Stones. LASD isn’t going to give him or any other party with an interest in Stepping Stones for advice on acquiring and building a new school campus. After it is built and they want to lease out to day care facilities, maybe then. I don’t see how you all connect the two as you have.
My primary concern is this:
Did the City Legal Services advice McAllister to contact the FPPC?
Did the City Legal Services advice McAllister NOT to contact the FPPC?
Technically, there is no privilege to square off regarding this question.
There is a great resource the public can read right here (https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/coi.pdf)
There are many issues defined in this document.
To me if the City Attorney DID NOT TELL McAllister to contact and inquire whether he had a Conflict of Interest problem the California Fair Political Practices Commission, especially after you read what their website states as “guidelines”, it would make you question the intent of the City Attorney.
The City Attorney is known for taking actions that eventually resulted in significant embarrassment to the City.
Do you remember when the City Attorney consented to a Temporary Restraining Order based on the frivolous constitutional challenge against the CSFRA by the CAA?
It took intervenors to establish that there was no grounds for a Preliminary Injunction, and also their legal practice in effect “Killed” the challenge. The court clearly indicated that the court was not going to be likely to rule that the CSFRA was unconstitutional. So that the CAA and the Mountain View Landlord Intervenors eventually quit the case altogether. This history does not provide good evidence of competent legal representation.
It makes me wonder how effective the City Attorney is to give unbiased and proper legal advice, especially when they should not be asked the question that was involved in this case. The City Attorney simply will say whatever will satisfy the City Council without also including other proper actions.
Don’t you think this situation bears some more investigation?
THe update didn’t work please read this revision:
In response to @@tell… you said:
“A quick read of the Santa Clara University Ethics Center web site dispells much of what has been written in this blog.”
Specifically, what on that website disproves the “cut and paste” from the California Fair Political Practices Commission Website I used? You can read the original text found here (http://www.fppc.ca.gov/learn/conflicts-of-interest-rules.html) I will read that website (https://www.scu.edu/ethics/) , but that web page does not appear to address the California Fair Political Practices Commission. But it does include the following text found here (https://www.scu.edu/government-ethics/resources/what-is-government-ethics/conflicts-of-interest-in-government/) :
Conflicts of Interest in Government
Judy Nadler and Miriam Schulman
These materials were prepared for the Markkula Center for Applied Ethics program in Government Ethics by Senior Fellow Judy Nadler and Communications Director Miriam Schulman. The Center provides training in local government ethics for public officials. For more information, contact Hana Callaghan.
What are conflicts of interest?
Because of the multiple roles individuals play in their daily lives, they inherently possess many different interests and loyalties. At any given time these interests may compete. Such conflicts are a part of life and are unavoidable. Public officials, as stewards of the public trust, ARE REQUIRED TO PUT THE PUBLIC’S INTEREST BEFORE THEIR OWN. Impropriety occurs when an officeholder, FACED WITH CONFLICTING INTERESTS, puts his or her personal or financial interest ahead of the public interest. In the simplest terms, THE OFFICIAL REAPS A MONETARY OR OTHER REWARD FROM A DECISION MADE IN HIS OR HER PUBLIC CAPACITY.
The most common conflicts in local government happen when officeholders face a vote on real property/land use issues that affect their own holdings. OTHER EXAMPLES INCLUDE VOTING TO GRANT A BENEFIT TO A COMPANY IN WHICH THE OFFICEHOLDER OWNS STOCK OR EVEN TO A NON-PROFIT ORGANIZATION ON WHOSE BOARD THE OFFICEHOLDER MAY SIT.
WHEN A CONFLICT OF INTEREST IS POSSIBLE, AN OFFICEHOLDER IS EXPECTED TO ABSTAIN FROM THE DISCUSSION AND THE VOTE.
What do conflicts of interest have to do with ethics?
Public service is always about protecting the common good, which may be defined as the common conditions that are important to the welfare of everyone-police, fire, parks, libraries, and other services. A public servant must always put the common good ahead of any personal, financial, or political benefit they might receive from a decision about such matters as where to situate a park or who should collect the garbage.
Also, conflicts of interest interfere with the basic ethical principle of fairness-treating everyone the same. A PUBLIC OFFICIAL SHOULD NOT TAKE UNFAIR ADVANTAGE OF HIS OR HER POSITION BY VOTING ON A MATTER THAT COULD BENEFIT THEM AT THE EXPENSE OF OTHERS.
Finally, conflicts of interest undermine trust. THEY MAKE THE PUBLIC LOSE FAITH IN THE INTEGRITY OF GOVERNMENTAL DECISION-MAKING PROCESSES.
What ethical dilemmas do conflicts of interest present?
Many times, government officials honestly believe that they are not being unduly influenced by their personal stake in an issue. They may feel, to the contrary, that their interest in the matter gives them special insight into the subject. A city councilmember who ran on a platform of revitalizing the downtown, for example, may feel entirely justified in supporting measures to improve the area, even if part of the benefit of such improvement might go to their own business. They might argue that they understand the problems of a downtown business because they own one. They might claim, further, that their constituents elected them specifically to represent this interest.
BUT CONFLICT OF INTEREST LAWS PREVENT SUCH PARTIALITY. First, IT’S ALMOST IMPOSSIBLE FOR INDIVIDUALS TO DETERMINE WHETHER THEY ARE BEING FAIR WHEN THEIR SELF-INTEREST IS INVOLVED. Also, as the Institute for Local Self-Government puts it, “THE LAW IS AIMED AT THE PERCEPTION, AS WELL AS THE REALITY, THAT A PUBLIC OFFICIALS PERSONAL INTERESTS MAY INFLUENCE A DECISION.” Even the appearance of impropriety undermines the public’s faith that the process is fair.
Another common misconception about conflicts of interest is that officeholders are absolved of their responsibility merely by being transparent about their stake in the issue. IT IS NOT SUFFICIENT FOR GOVERNMENT OFFICIALS TO MAKE CONFLICTS PUBLIC. THEY MUST TAKE THEMSELVES OUT OF THE DECISION-MAKING PROCESS ALTOGETHER.
THIS INCLUDES DISCUSSION AND DEBATE AS WELL AS ACTUAL VOTING. ABSTENTION IS ONLY HALF THE REQUIREMENT. A PUBLIC OFFICIAL IS ALSO EXPECTED TO REFRAIN FROM PUBLIC PRONOUNCEMENTS AND PRIVATE ARM TWISTING ON DECISIONS IN WHICH HE OR SHE HAS AN INTEREST.
Note, also, that the interest may be personal as well as financial. Helping one’s fraternal order to obtain rent-free space in a public building is a form of conflict of interest, especially if it improves one’s standing in the organization. Being elected president of a community group because of such favors might prove to be in an officeholder’s personal and political interest when the next election rolls around. Conversely, public office should not be used to punish one’s personal and political enemies. Voting no on your annoying neighbor’s reasonable zoning waiver request is another form of putting private ahead of public interest.”
This would appear to in fact not support your opinion. Why did you make your statement when it could easily provide guidance to find even more problems for McAllister? You said:
“Councilmember McAlister has done nothing improper and the appearance of impropriety does not make his actions unethetical or immoral.”
Well, it looks like you in fact provided more evidence of problems regarding ethics and conflict of interests, and the California Fair Political Practices Act. Why?
Another FYI:
I found this letter issued by the California Fair Political Practices Commission (http://www.fppc.ca.gov/content/dam/fppc/documents/advice-letters/1995-2015/2018/18098pdf.pdf)
It specifically states:
“This letter responds to your request for advice on behalf of Mountain View City Councilmembers Pat Showalter and John McAlister (the “Councilmembers”) regarding the conflict of interest provisions of the Political Reform Act (the “Act”).1 Please note that we are only providing advice under the conflict of interest provisions of the Act and not under other general conflict of interest prohibitions such as common law conflict of interest or Section 1090.”
It answered the following questions:
“1) May the Councilmembers, who each own real property within 1,000 feet of Cooper Park, take part in decisions related to rezoning actions permitting the construction of workforce and market housing by the Mountain View Whisman School District (the “District) on the District-owned portion of Cooper Park?
2) May the Councilmembers take part in decisions related to the purchase or lease of the District-owned portion of Cooper Park in order to preserve the area as parks and open space?”
The answer was:
“No. The Councilmembcrs may not take part in decisions related to rezoning actions permitting the construction of workforce and market housing on the District-owned portion of Cooper Park because the decision will have a reasonably foreseeable material financial effect on the Councilmembers’ interests in real property.
No. The Councilmembers may not take part in decisions related to the City’s proposed purchase of the District-owned portion of Cooper Park because the decision will have a reasonably foreseeable material financial effect on the Councilmembers’ real property interests.”
It would appear that the City knew quite well that the Commission would likely advise the City that there is a conflict of interest in this case. The City in effect does not want to forward this kind of inquiry when it has good knowledge that the Commission would in effect declare the McAllister is not allowed to participate in the decision in this case.
WHY DID THE CITY NOT FORWARD THIS INFORMATION TO THE FPPC?
Anyone who has followed the LASD/BCS drama knows that there is a bone to pick with LASD for housing 3 preschools on the coveted Covington site. One is Stepping Stones, a private preschool that used to sit on Blach’s campus. It provided care for youngsters in the community. Not for Blach, obviously. Then, when BCS needed more space to accommodate their growth, the district did move Stepping Stones to another district site, Covington. Why wasn’t Stepping Stones asked to find their own site? They are a private preschool. Not the Y or the only aftercare at Covington. There are 3 (!) options for Covington families who need aftercare. It’s also convenient to use the space at Covington for 3 preschools as it keeps the land occupied and deemed not possible to use as a share option for BCS. Fast forward to the present with the Kohls site as a possibility to house BCS. The public may not be aware of all the nuances of the technicalities of a conflict of interest. But how does this look? I am sure this thought crossed McAlister’s mind. He profits from the private Stepping Stones preschool that sits on the coveted Covington site where LASD refuses to site a public charter school whose families still pay school taxes to LASD. LASD and MVCC are now in a relationship because of the intended 10th site purchase to house a public school in the city of MV. McAlister should have recused himself from all City Council votes involving a land purchase with LASD. If nothing else, just to practice good ethics as an elected official.
WARNING LONG BUT CAN BE WORTH READING
In response to Complete Nonsense you said:
“My own personal take would have been to recuse my self due to the appearance of a conflict rather than an actual conflict.”
I think you also understand that just the appearance of a conflict of interest is enough to require a city council member to recuse themselves. Is this correct?
In response to Connecting the dots you said:
“McAlister should have recused himself from all City Council votes involving a land purchase with LASD. If nothing else, just to practice good ethics as an elected official.”
I think you also are in agreement with Complete Nonsense.
My question still remains this: Why did the City Attorney give advice to McAllister that he can be allowed to even demonstrate the appearance of a conflict of interest?
It appears regarding both resources the one here ((http://www.fppc.ca.gov/learn/conflicts-of-interest-rules.html)) and the one here ((https://www.scu.edu/government-ethics/resources/what-is-government-ethics/conflicts-of-interest-in-government/)) that the City Attorney was trying to prevent compliance with the California Political Reforms passed in 1974. Why does the citizens of Mountain View accept this kind of legal practice? Can’t this behavior be considered worthy to have the California Bar Association initiate an investigation as to whether the City Attorney and her legal Attorneys should be sanctioned for this behavior? Especially given that the Bar requires the following conduct found here (http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_8.4-Exec_Summary-Redline.pdf) :
“Rule 8.4 Misconduct
(Rule Approved by the Supreme Court, Effective November 1, 2018)
It is professional misconduct for a lawyer to:
(a) violate these rules or the State Bar Act, knowingly* assist, solicit, or induce another to do so, or do so through the acts of another;”
So if the City Attorney assisted, solicited, or induced another attorney working for the City of Mountain View to violate any other defined component in this document, the City Attorney and their peers could be found on professional misconduct. It also stated:
“(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;”
I DO NOT CLAIM THIS IS IN EFFECT AT THIS TIME. But I reserve the possibility that some other conduct might be found to qualify regarding this if an investigation uncovers it. It goes on to say:
“(c) engage in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation;”
The City Attorney and her colleagues can be found to be dishonest, reckless or holding intentional misrepresentation of the California Political Reform Act, and by not contacting the Fair Political Practices Commission regarding this situation. I would like to see an investigation to establish if this has happened. It goes on to say:
“(d) engage in conduct that is prejudicial to the administration of justice;”
The City Attorney and her colleagues can be involved in conduct that is prejudicial to the administration of justice because there is plenty of publically available irrefutable facts that amount to violations of law, thereby a prevention of justice. I simply want an investigation regarding this. It goes on to say:
“(e) state or imply an ability to influence improperly a government agency or official, or to achieve results by means that violate these rules, the State Bar Act, or other law; or”
Well, this one seems to be very direct that the City Attorney and her colleagues violated the laws regarding the Political Reform Act. Thereby a clear basis of an investigation is apparent here. It goes on to say:
“(f) knowingly* assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law. For purposes of this rule, “judge” and “judicial officer” have the same meaning as in rule 3.5(c).”
I DO NOT CLAIM THAT THIS OCCURRED. But if in investigation, it can be found this did happen, say for example during the CAA court challenge the City Attorney or her colleagues assisted a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law, there are serious ramifications. The document discusses these other issues:
“[1] A violation of this rule can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.”
This is inapplicable here it goes on to say:
“[2] Paragraph (a) does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.”
But it appears that just the appearance of a conflict of interest would qualify as prohibited based on a lawyer from advising a client concerning action the client is NOT legally entitled to take. It goes on to say:
“[3] A lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes “other misconduct warranting discipline” as defined by California Supreme Court case law. (See In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].)
These seems to be a very broad issue especially given the language “or if the criminal act constitutes “OTHER MISCONDUCT WARRANTING DISCIPLINE” as defined by California Supreme Court case law. I do not have all the case law in front of me. But it would appear that this qualifies as “other misconduct warranting discipline”. It also stated:
“[4] A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.”
This appears to be strong case for discipline based on acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent. The explanation the City Attorney provided can easily be described as a moral turpitude given that public information clearly discredits the conclusion made in this case. It can be declared as explicit dishonesty by not providing legal advice in accordance with the guidelines of the Fair Political Practices Commission. I do not have all relevant evidence necessary to declare corruption in this matter, but investigation may prove that this has occurred here. And at the very least, not moving forward with the Fair Political Practices Commission from the beginning is clearly grossly negligent given the publically accessible information provided by the Fair Political Practices Commission. It goes on to say:
“[5] Paragraph (c) does not apply where a lawyer advises clients or others about, or supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these rules and the State Bar Act.”
This does not appear to apply here.
In conclusion, there seems to be a clear case for someone in the California Bar to approach the California Bar Association to initiate a inquiry regarding the conduct of the legal team in the City of Mountain View.
I cannot wait for the next City Council meeting.
I suspect it will be quite a night.
As long as those who are expressing their disappointment will show, and finally hold the City Attorney and McAllister accountable for their actions.
THe City Council should censure McAllister for bringing such a untenable problem to the City. He has in effect proven that those we trusted to be our representative do not represent the public. Only their own self-interest.
Does anyone actually bother to read the bloviation of The Business Man?
In response to @Business Man you said:
“You hijack every subject with your endless, numerous comments. I simply skip over anything you write, because you over-kill every subject.”
I do understand your perspective. But I am trying to discuss the topic, not take over the board. You said:
“I realize you have some knowledge that you want to share, but if you just cut it down to a readable summary, you might get a few more of us to read what you write.”
I really don’t have knowledge, I simply do some research so that those reading can get information without having to go through the effort. I hope you will understand that. You said:
“Almost every time there is a new post by someone, you seem to believe you are expected to reply. News Flash: you don’t own this site and it’s annoying you seem to think you do.”
It is not my intent to do so, but I will take action if one attempts to deceive the public by making claims that can be proven not true. You said:
“The way it stands now, you come across as an self-important “know it all” who truly beats every subject to death.”
I am sorry about that. But again, I do provide irrefutable information I find to support my observations. Please bear with the fact that when others make claims that simply don’t make sense, the public should be informed about it? I absolutely do not “know it all”. I simply respond to claims by asking questions and doing research. Please understand I do make constructive comments related to the subject? And most importantly, I have enormous respect for those who are willing to bear with me.
I simply provide free information, in such a way to allow those reading to see what I uncover. You do notice most of my work is in fact “cut and paste” related information.
In response to Waldo you said:
“Does anyone actually bother to read the bloviation of The Business Man?”
Do you have anything to contribute to the subject? Such a comment has nothing to do with it.
In response to @Business Man you said:
“You hijack every subject with your endless, numerous comments. I simply skip over anything you write, because you over-kill every subject. I realize you have some knowledge that you want to share, but if you just cut it down to a readable summary, you might get a few more of us to read what you write. Almost every time there is a new post by someone, you seem to believe you are expected to reply. News Flash: you don’t own this site and it’s annoying you seem to think you do.
The way it stands now, you come across as an self-important “know it all” who truly beats every subject to death.”
Do you have anything to contribute to the subject? Such a comment has nothing to do with it.
In response to OMG you said:
“Business Man – the minute we see your name most of skip your post entirely. You need to learn to control your “speeches” as you are alienating most readers. Pontificating on every subject that arises is not impressive, it’s off-putting.”
Do you have anything to contribute to the subject? Such a comment has nothing to do with it.
I am listening for something on the topic. Just trying to personally attack another for their opinion is not contributing to the public discourse. If you find that my information is inaccurate, please demonstrate it? If you have a question that will educate the public, please ask it? Otherwise, it just looks like you are just being disagreeable without any disagreement.
The duty to disclose economic interests is different from the duty to not engage in conflicts of interest. The matter of whether Councilmember McAlister is or could well be motivated by his ongoing business relationship with the Los Altos School District – or his prospective business dealings with the District – involves matters of ethics – but not necessarily conflict of interest laws. But especially since Councilmember McAlister holds a key vote on whether to waste city resources on a school site the LASD surely plans to use to house Bullis Charter, we should be looking into the matter.
So, now that I have a copy of the letter from the complaining resident, I see this is far more serious than I had guessed. Councilmember McAlister apparently is a major owner, officer and employee of the for-profit corporation (KJM, Inc.) doing business as Stepping Stones Preschool under a lease with the LASD at Covington school – a lease that allegedly will soon expire if not extended by the school district. I have requested a copy of the lease from the LASD. Figure that will take awhile to get. The letter cites various statutes and explains how McAlister allegedly has been violating them.
I had a hunch due to the content of the story that there was very serious issues at play. Well, it appears that my questions are being answered with more seriousness than I anticipated.
McAlisters tenure may be in serious jeopardy here.
The July 23 letter-complaint is linked to an article just published in the Los Altos Town Crier. The letter was addressed to several entities including the City. Councilmember John McAlister should now disclose his financial interests in the preschool at Covington. Doubletalk from this councilmember will not suffice.