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.
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.
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.
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.