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Reading Grand Jury Report Confirms Suspicion Of Bias

The Santa Clara City Council majority has cried foul on a grand jury report that accuses them of colluding with the 49ers. And with just cause. 

The report’s thesis is that the Council majority— council members Kevin Park, Anthony Becker, Karen Hardy, Raj Chahal and Vice Mayor Suds Jain —is acting as a mouthpiece for the team and blindly carrying out its wishes. Among the slew of things it condemns are council members not appearing on camera, taking tours of Levi’s Stadium, firing the city manager and city attorney and a legal settlement between the team and the City. 

Council majority members say the report is biased and the grand jury robbed them of the ability to defend themselves. Part of their criticism was that the report is crafted to give the appearance of wrongdoing without actually alleging anything.

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The grand jury achieves this three ways: with soft or vague language, by assuming the conclusion (also known as circular reasoning) and with unsubstantiated claims. 

Bibliography Instead of Evidence

Much of the report simply recites the Brown Act, City policies and other relevant state laws. But the grand jury fails to divulge who it interviewed for the report, instead simply saying it conducted “more than 10 interviews,” but offers no insight into who these people are, even in general terms such as “legal expert” or “City employees.”

That undermines the value of these interviews. If, for instance, the jurors interviewed Becker’s mayoral opponent incumbent Mayor Lisa Gillmor, fired City Attorney Brian Doyle, or Gillmor’s blogger Robert Haugh, it would hardly be surprising that the report is so scathing. 

Since the grand jury does not illuminate its own credentials or those of its sources, value judgments regarding things like the legal settlement between ManCo and the City depend on an unnamed and unknown authority.

For example, the grand jury writes that it “…learned that some people with knowledge of the litigation believed that the City had a strong case…” 

The reader is unaware from whom the grand jury learned this information. In writing “some people with knowledge of the litigation,” the grand jury heavily implies that the “some people” in question have legal expertise when they may not. 

Judging whether a case has merit is a legal conclusion and predicated on having legal expertise. However, the grand jury does not even specify that it interviewed such people, just that it “learned” of them.

Evasion and Loaded Language

From the outset, the jurors inject their claims with authority using vague language instead of evidence. They use words infused with value judgment without defining them. 

For instance, the jury writes that the Council majority has engaged in “…unethical behavior, lack transparency in their governance, and govern as if the City Council owes a fiduciary duty to the 49ers as opposed to the City…”

Nowhere in the report does the grand jury specify which behavior is unethical or, indeed, what even constitutes “unethical,” “transparent,” or “fiduciary duty.” 

Instead, the grand jury details what the Brown Act, City policies or state law say about such behavior without any evidence showing the Council majority breaking these rules. They simply place the rule and the allegation next to each other, jumping to the conclusion the Council majority behavior violates it. 

The bottom line is that the grand jury doesn’t directly accuse the Council majority of breaking these rules. Instead, they lead their audience to the door of concluding the Council majority did these things. 

But they don’t prove anything.

The grand jury frequently uses soft language to give the appearance of impropriety. When discussing meetings with the 49ers, the grand jury writes that the situation “…raises serious concerns about potential violations…” and “…certainly suggests that the content of the meetings concerns the matters before the City Council…”

The meetings don’t violate laws, they “raise concerns,” and the jurors don’t say there are violations, just “potential violations.” And, again, calendar reports don’t breach any rules, they merely “suggest” that their content — doesn’t affect City policy — “concerns matters before the City Council.” 

Further, jurors claim that it is not just the frequency with which the Council majority meets with the 49ers, it is that those meetings are “close in time” to the Council meetings. But nowhere does the grand jury specify what that means.  

Citation Needed

The grand jury fails to establish evidence for the wrongdoing it is implying. By using the passive voice — i.e. “mistakes were made” — making assumptions, and acting as though their claims are self-evident, the jurors sneak in hidden premises or start with the conclusion.

Take, for example, the grand jury’s claim the Council majority is “…not holding ManCo accountable…” and goes on to write that it fails to “…require ManCo representatives or 49ers representatives to attend City Council meetings…”

By framing this matter in such a way, the grand jury implies that the Council majority has a unique responsibility and power to force ManCo to attend meetings and that it chooses not to exercise — without specifying what that authority entails. 

Further, it does not specify why it falls to the “49er Five” to require ManCo to attend and why this is not equally a responsibility of the Council minority.

In similar fashion, the grand jury writes that the “serial meetings” it alleges Council members are having raise “…serious concerns about potential violations of the Brown Act…” However, the Brown Act specifies that “[o]nce serial communications are found to exist, it must be determined whether the communications were used to develop a concurrence as to action to be taken.”

The grand jury fails to provide the communications “used to develop a concurrence.” Instead, it fixates on the outcome. Nowhere does the grand jury establish that these meetings were the cause of, what the Brown Act calls, a “cohesive legislative stance,” just that there was one — which is typically the case when legislation is passed. 

Round And Round

At several points in the report, the grand jury uses circular reasoning, giving the impression the jurors started with the conclusion that the Council majority are guilty of colluding with the 49ers.

Early in the report, the grand jury writes that the Council majority’s action has led to “dysfunction” within the City and that they “[c]an — and do — vote in a manner favorable to the 49ers.”

Both “dysfunction” and “favorable” are larded with value judgment, and offered without specific examples. Categorizing the Council majority’s actions as “favorable,” gives the impression that the public interest and that of the 49ers — a business partner with the City — are mutually exclusive.  

This framing is relevant because the grand jury earlier claims that the Council majority regularly meets with the 49ers but that it “…does not reveal the substance of the meeting…” Then, jurors immediately qualified that statement with “…except to frequently repeat the lobbyist’s talking points.” 

If the Council majority is not disclosing its discussions with the 49ers, it raises the question as to how the grand jury knows the Council majority is doing the team’s bidding. But the grand jury skates by this by assuming the conclusion that the council majority is doing the 49ers’ bidding, so any disclosure is “repeating lobbyist talking points.” 

This characterization is important when the grand jury comments on the 49ers wanting the city attorney and manager fired.

There are myriad reasons a city council would fire a city manager and attorney. Had jurors bothered to ask those questions of the people they accuse instead of fixating on whether the 49ers also wanted the duo gone, they might come to a different conclusion.

Yet they assume the conclusion in the same way in their testimonial to Brian Doyle and Deanna Santana: “[The 49ers] wanted the City Attorney and City Manager fired. The City Council Voting Bloc obliged, and both the City Manager and City Attorney were fired – leaving City management rudderless and without strong leadership.”

This creates a false dichotomy — making it out as if these are the only two options when there are more than those — the grand jury imputes wrongdoing without actually saying it.

Additionally, the use of “rudderless and without strong leadership” is another black-and-white fallacy. It assumes the City had these things when Doyle and Santana reigned, comparing a scenario with their “leadership” to one without leadership. The grand jury is content to imply that the City is afloat in a sea of uncertainty, as if the Council had no plans to steer the City in the right direction. 

…And Around

Circular reasoning is a central characteristic of this report. Another example occurs in discussing meetings with the 49ers. The grand jury writes that the “…meeting pattern between the City Council Voting Bloc and 49ers lobbyists creates a risk that the council members will divulge privileged information. The likelihood of inadvertent disclosure of privileged information is increased based on the frequency of these meetings.”

The grand jury doesn’t specify how more meetings increases the risk. It just writes that it will. In order to draw that conclusion, the jurors would need to assume that people that routinely deal with confidentiality are more likely to reveal secrets the more frequently they discuss them. If this were true, it would make the CIA and the FBI dysfunctional. 

The report does not seek to prove that the Council majority is unaware of their duties. If anything, it seems to assume the contrary, clearly stating that the Council majority is ignoring those duties — which it never details. Given that jurors obviously believe the Council majority knows its responsibilities, the grand jury’s conclusions only work if one starts with the assumption that the Council majority has an agenda.

Given the contents of the report, it is unsurprising that those accused in it have taken major issues with its characterizations. Unless one is already inclined to believe the “49er Five” are guilty, the report’s tactics look more like a witch-hunt than an investigation. 

The grand jury reveals this strategy when it writes that the Council majority “…has been referred to in the media as the ‘49er Five’ for their decisions favoring the 49ers.” Framing the manner in this way is an attempt to leverage public opinion, not a finding of fact.

The Council has 90 days to respond to seven of the eight “findings” in the report. However, when Jain questioned City Attorney Steve Ngo as to what will happen if the Council fails to meet that deadline, Ngo gave no substantive answer. Which may be the best answer to the grand jury’s October surprise.

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15 Comments
  1. Buchser Alum 1 month ago
    Reply

    There is plenty to nitpick and question about the grand jury and its report but several things are clear and simple and should be a matter of concern for anyone who wants our city council to not only act with integrity but also with transparency so that we know they are acting with integrity and do not have to take a leap of faith.

    It is not proper for five out of the seven city councilpeople to meet with the Forty Niners dozens of times and to break themselves up from a group of five into a group of two and three in order to skirt the public requirement that any meeting with four or more be public.

    Meet dozens of times privately with no notes or minutes or recordings with two councilpeople missing and no appointed city staff such as the city attorney or city manager present.

    We the public do not know what was discussed and cannot know. We can only ask a bloc of councilpeople who are political allies and the Forty Niners and then take them at their word.

    It is wrong that we just have to trust them that they are not being unethical especially when these exact same councilpeople get millions of dollars spent on them by the Forty Niners in their election campaigns. Even if you trust that they are doing right by the city it is still wrong that there is no transparency and that we are required to simply trust them with no way to know that they are acting in our best interest.

    This is not the way a local government is supposed to be run. And trying to defend this total lack of transparency is not the way a local news outlet is supposed to be run. You are supposed to be a public institution that helps the people demand accountability and transparency and not be a partisan defender of politicians acting opaquely while getting millions of dollars in political support from a corporate special interest.

    • Davy L 1 month ago
      Reply

      The answer is obvious why our Council Members were meeting with the 49ers. It was an attempt to settle the pending lawsuits between the 49ers and our City. They felt their efforts were being “blocked” by Gillmor and Santana. Well, through their efforts, these lawsuits were finally settled. Mission accomplished! The end. Our City saved itself millions and millions of dollars. However, Gillmor and Watanabe were very upset. Both Watanabe and Lisa stormed out of the meeting slamming the doors behind them. In retaliation, Lisa and her associates concocted this phony Civil Grand Jury report.

    • Davy L 4 weeks ago
      Reply

      Rational people see evidence and reach a conclusion. This report starts with a conclusion and then seeks to find or make up the evidence in the support for it.

  2. Buchser Alum 1 month ago
    Reply

    Davy,

    You are admitting something that I do not think the Forty Niners council bloc would admit because it would be improper and irresponsible for these five councilpeople to negotiate a settlement without the presence of the city attorney or city manager. None of them have any professional experience in litigation or venue management or property management or anything relevant to litigation and facility management so critical to our city.

    A bunch of amateurs with no relevant experience negotiating with an NFL franchise on stadium management is how millions of dollars get lost.

    I hope for our sake that these councilpeople were not as foolhardy as you would have liked them to be.

    • Davy L 1 month ago
      Reply

      Regardless, the lawsuit settlement was acceptable and met the approval of our City Attorney. My understanding was that millions of dollars went to our City. To delay the settlement further would have been cost the City an additional two million dollars annually in lawyer fees until the court date. Anyways, the lawsuit has been settled and agreed upon by our elected Council Members and our City Attorney. You’re the one being foolhardy by continuing arguing a matter that has already been successfully closed.

      • Buchser Alum 1 month ago
        Reply

        Davy,

        You made a bad assumption and in so doing revealed the very low bar of integrity and intelligence that you are holding our public officials. You can try to sweep that away by saying “Regardless” but that is not how reality works. The City Attorney does not have the power to object to a vote that the city council or stadium authority makes unless it is demonstrably illegal maybe. So what you think of as some sort of endorsement does not exist.

        To continue the litigation would have increased legal costs but it may also have resulted in much greater increase in profit sharing to the city if the Forty Niners have not been honest in their management of the stadium. We will never know because the litigation was necessary to gain full access to financial records that the Forty Niners are denying us on the stadium that we the public own. Last time we invested in litigation to defend our rent demands in arbitration we won our defense in over $4,000,000 per year in rent and even won around $260,000 more that we had not even been asking for.

        Legal costs can be an investment in much greater returns. Just like spending millions of dollars on getting your choice in elected officials can be an investment in much greater returns for a corporate special interest like the Forty Niners.

        • Davy L 1 month ago
          Reply

          Oh, stop beating a dead horse. This issue has already been resolve successfully. Our Council did what they were elected to do. They saw a problem that needed to be fixed. Mission accomplished. You can go on with your moaning and complaining. Remember our Council represents us, the voters. You do not. Our Council makes these choices and decisions not you.

          • Buchser Alum 1 month ago

            Davy,

            I evaluate people based upon past behavior and decisions and actions. That is how candidates for public office are evaluated. You do as well in how you judge Lisa Gillmor for her past behavior and decisions and actions. As you should because that is how people form opinions.

            I do not tell you to not voice your opinions on a public comment section of a news site. I ask you to show me the same basic courtesy.

            You also have the choice of simply not reading what I write. If you do not want to read my opinions all you have to do is stop revisiting the same web pages you have already read to see if I have written something new for you to read and tell me I should not have written.

          • Davy L 1 month ago

            Buchser,
            This is a comment section and you do not set the rules. I enjoy reading comments and enjoy replying to them, especially those that I do not agree with. Obviously, your comments are usually the ones I do not agree with. You evaluate people and events differently than I do. No big deal. You can comment as often as you please. But please grant me the same privilege.

  3. Buchser Alum 1 month ago
    Reply

    Davy,

    I have never told you that you should stop voicing your opinions though you have done that to me. I have never personally insulted you though you have done that to me.

    • Davy L 1 month ago
      Reply

      Buchser,
      Sorry. I would suggest you just ignore my comments or my replies to your comments. However, I’m not planning any changes for the removal of Lisa Gillmor as our Mayor.

      • Buchser Alum 4 weeks ago
        Reply

        Davy,

        I do not try to change your opinion on anything. It is very clear to me that is not possible and it is not something I care about. When I reply to you it is to correct false or incorrect statements that you make or to make sure that arguments you make that I disagree with have a counterpoint that I would like to be readable by other people who read this site and the comments.

        Many times I leave it to you to have the last word because what you write is not something I think needs me pointing out its factual inaccuracies or logical weaknesses. Many times you express thoughts and beliefs that I imagine are the thoughts and beliefs typical of someone who would be a big supporter of Anthony Becker and I think it is good that you are showing this to anyone reading.

        • Davy L 4 weeks ago
          Reply

          Buchser,
          First, I would like to correct you. I am not a “big” supporter of Anthony Becker. What I am is a “big” non-supporter of Lisa Gillmor. During the past two years, her behavior has been a big detriment to our City. My feelings are our city needs a new Mayor. The other choice available is Becker. So, that is who I have voted for.

          • Buchser Alum 4 weeks ago

            Davy,

            In case you are interested the reason why you seem to me to be a big supporter of Becker is because you never have any criticism for her and do not even state any disagreements with him. And you never fail to try to provide some sort of excuse or positive explanation for any criticism of him.

            That is in addition to only having criticism and negativity for Gillmor and always trying to negate anything that could be argued as her positives or positive accomplishments.

            I do not view politics or people this way because I ultimately just want the best for our city and to talk about politics productively and not argue out of favoritism or emotion. I have given people credit where it is due and I do not try to dismiss the legitimate problems and mistakes of people who I support.

          • Davy L 4 weeks ago

            Buchser,
            We witness the same events, but interpret them differently. Not a big deal. My opinion of Gillmor are based on observations during the past 2 years. Frankly, they have been generally negative. Perhaps, you wish to present some positive thoughts for me to consider? As for Becker, he is currently the only alternative. And for most of your comments, I find them to mainly be attacks and few if any compliments. Your attacks generally are centered about the 49ers.

            At the beginning this election, I notice a great many comments (James Rowen, Tom Shanks, Kirk Vartan, the Dude, Jill B, SVV owned by 49ers, BuchserAlum, SC resident, Resident of SC, Another SC Resident, District 6 Resident, Average Joe, Michael B, TIE, GoodShipSantaClara, Sam Yodel, SC Booster, Observation, Jim, We’re A Joke, Impartiality Of SVV in Question, To Davy/Carolyn, Joesph Warren, etc.) were all supporting Lisa Gillmor. This seemed very one-sided, and so, I decided to start posting comments to counter balancing theirs.

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