We knew that the plaintiffs in the 2018 California Voting Rights Act (CVRA) lawsuit made Santa Clara a settlement offer on Dec. 10, 2020. Now we have a copy of the letter itself; incontrovertible evidence that former City Attorney Brian Doyle concealed the offer from the City Council until after the deadline for acceptance. Santa Clara lost the case in both trial court and on appeal. [letter]
Attorney Robert Rubin, who was co-counsel for the plaintiffs in the case, provided the letter to The Weekly.
In the Dec. 10, 2020 email, Attorney Laura Ho emailed Doyle’s co-counsel Steve Churchwell a settlement offer that would have saved the City at least $1 million from the 2018 award that with almost two years of interest and fees was now up to $3.8 million. The City also missed the opportunity to negotiate a better settlement, which could have saved Santa Clara even more.
In the end, the appeals court heard the case, and ruled against the City. Santa Clara ultimately spent $5.8 million over the two years of litigation in the case.
Doyle would have had the settlement offer in hand when he told the City Council on Dec.15, 2020 there was nothing “time sensitive” to discuss in closed session. The offer expired at the close of business the following day. Yet he didn’t communicate the offer to the full Council until two hours past the deadline.
Churchwell is no longer with Sacramento-based White Brenner and the law firm didn’t respond to The Weekly’s request for comment.
Legal experts unvaryingly tell The Weekly that withholding settlement offers from clients is a serious breach of Bar Association ethics rules (California Bar Rule 1.4.1) — regardless of anyone’s preferences or even whether the offer would be damaging to the attorney. Withholding a very significant development in a precedent-setting CVRA lawsuit would be unthinkable.
“If a settlement offer is made, then those terms have to be communicated to the client,” said Attorney Tyler Atkinson of San Jose-based McManis Faulkner. “Ethics rules are very, very clear on that. And the offer is to be communicated promptly.”
Doyle’s client was the City of Santa Clara, represented by the seven members of the City Council, all of whom had a right to know about the offer regardless of Doyle’s or any other Council Member’s opinion about it.
No Sense of Urgency, But Plenty of Stalling
Not only didn’t Doyle communicate the settlement offer when he got it, he didn’t make any effort to communicate to the Council that there was anything urgent on the Dec. 15 closed session agenda.
Far from it.
Doyle instead allowed the discussion to be postponed to the following evening — after the offer expired — over a miniscule error in the online agenda notice. The previous week (prior to the settlement offer) Doyle blocked a closed session discussion of the lawsuit with questionable and convoluted arguments about conflicts of interest and who has the authority to call a closed session meeting. *
After nearly a year of remote meetings, at the Dec. 15 meeting Santa Clara Mayor Lisa Gillmor ally Bob O’Keefe said he had just discovered that the new agenda page with remote meeting information was out of compliance with the ADA — the identical page that had been used for the previous 30-plus meetings. No one ever filed a complaint about it, which only someone who needed the accommodation could do.
It had already been corrected by the time the Dec. 15 meeting started.
However, O’Keefe expressed shock about the omission and said if the meeting proceeded it would be a serious violation of the Brown Act. It was, he said, “imperative that the City… conducts the business within the law,” and would be “hypocritical and ironic to pursue this.” Holding the meeting, he continued, would be “unlawful” and “exposes the City for litigation of violating ADA laws.”
Although Doyle did tell the Council that the agenda error was unlikely to be a problem, he said nothing, in two hours of Council discussion, to communicate any urgency about the lawsuit.
“I’m fine with repeating” actions taken at the meeting the next day if someone actually made a complaint about the ADA information, said Council Member Anthony Becker. “But coming down to the 11th hour to bring this up, and especially [by] a former candidate that ran against Council Members here…that really reeks of something to me.”
Council Member Kathy Watanabe, another close Gillmor ally, was filled with “concern.”
“This has not been posted within 72 hours…which is not giving adequate notice to be applicable to the ADA requirements…because it has just been brought to our attention. Our concern is going forward, and the decisions that are made may be tainted as a result and need to be rescheduled. So…I am concerned from that perspective.”
Gillmor asked if there was anything that would be “in jeopardy” if the meeting was rescheduled for the following day at 7 p.m. — which would be two hours after the settlement offer expired. Doyle made no reply and Gillmor said, “Thank you.”
Later in the meeting when Council Member Kevin Park said that he thought there was something urgent to discuss that evening, namely that he had gotten a call from Attorney Rubin saying that Rubin had sent information to the City that was time sensitive. Rubin subsequently told The Weekly that his call was promoted by the fact that he’d received no response from the City.
Watanabe then became adamantly opposed to holding a closed session. “I don’t think that it’s transparent, and again, it gives me pause. There’s a question knowing that there’s ex parte communications occurring. Why doesn’t Robert Rubin contact our attorney Brian Doyle?”
The Council agreed to talk about the lawsuit the following night at 7 pm — the time was set to accommodate Mayor Gillmor who said she couldn’t be there.
Doyle, Gillmor and Watanabe continue to deny that the former City Attorney did anything improper and to assert that Doyle’s dismissal was masterminded by 49ers owner Jed York.
“Jed York wanted my head on a silver platter, and he got it,” Doyle told the San Francisco Chronicle.
*Doyle claimed that holding a closed session would open Council Members to something he called “common law conflict of interest” because they had campaigned on settling the lawsuit, and, further, would expose him to a charge of “malpractice.” Other attorneys dismiss these claims as nonsense. In any case, conflict of interest laws exclude political campaigns.
Among Doyle’s other false statements, he said that only he had the authority to call closed session meetings, and that settling the lawsuit would be giving money to the 49ers. The NFL team had nothing to do with the lawsuit and has no connection whatsoever to the plaintiffs. Rubin first threatened a voting rights lawsuit in 2011 — the year after Gillmor spent $5 million in 49ers money to get voter approval to build Levi’s Stadium.