When Citizens Advisory Committee (CAC) member Suds Jain emailed City Manager Deanna Santana and Acting City Clerk Jennifer Yamaguma asking about candidate forums little did he know that he would unleash a tsunami of controversy.
“I asked an honest question. I wasn’t trying to be controversial. Somehow these people felt threatened. I don’t know why,” said Jain. “These are questions that came up at the CAC meeting. The CAC is a watchdog and everybody was wondering what was going to happen [about the forums]. They [City Hall] changed policy without telling anybody about it.”
That the City would sponsor candidate forums in 2018 is a reasonable assumption — and not just because it been done so for at least 20 years. The City’s Policies and Procedures manual has a detailed section on the candidate forum.
Round One: No City-Sponsored Forums
The City’s series of defensive, verbose and contradictory “statements” about the forums suggest that the City started scrambling after Jain’s email. Two hours after he sent it, Jain got a succinct response to his Aug. 28 email.
“The City is not planning any City-sponsored forums as has been done in the past,” “campaign or campaign fund-raising activities are not allowed in the Council Chambers, if the Chambers is available for an appropriate neutral use, the fee of $15.00 per hour for day use and $20 per hour for evening use would apply (per Policy and Procedure 008), and any advertising on the City website “would be done exactly as what is offered for any other type of event (i.e., if it is at the library, it would be added to the library event page, etc.)”
Further, in reply to the question as to whether the City would provide a campaign ethics consultant — as it has for elections during the last 35 years — the answer was one word: “No.”
Later that afternoon Assistant City Manager Nadine Nader forwarded Yamaguma’s reply email to Santana, who responded to Nader, copying Chief Operating Officer Walter Rossman and Yamaguma. Santana’s reply says nothing about any clarifications to the statement that the City was “not planning any City-sponsored forums.” Instead she was concerned about the answer to Jain’s question about ethics consultants.
“Thank you for the opportunity to review the responses. I would suggest that we elaborate on 4 by stating that we will bring in support or consultants on a case by case basis and/or as deemed needed. We will not provide ethics consultants to candidates. Is there any way to send a clarifying, elaborated response to 4 so that he doesn’t think that it is a flat no?”
Round Two: Legal Concerns — Is It The City Attorney? Is It The City Manager? No, It’s The Ethics Committee
After the Weekly published its editorial online on Aug. 30 the City Clerk sent another email to Jain and published it on the City website, restating the new “no forums” policy.
“City staff is restricted from these activities.” The memo also stated, “Upon review of the City’s past practices related to the Santa Clara Votes programs, which included conducting candidate forums and a final word forum led by a City-hired consultant with the use of general fund monies, there was significant concern by the City Manager and City Attorney that these practices conflicted with state law [California Govt. Code 5964] and the appropriate use of public funds. Therefore, as has been previously stated, neither a Candidate Forum nor a Final Word Forum will be hosted by the City of Santa Clara this year through the services of a hired consultant.”
The state law referenced prohibits employees of local public agencies from spending, or authorizing the spending of public money to support or oppose ballot initiatives and candidates.
In the 2009 court case (Vargas v Salinas) the California Supreme Court ruled that it’s in the public interest to use public resources for a variety of activities that inform voters, including holding public meetings where all perspectives are heard. Prohibited uses of public resources are in the category of creating and distributing campaign materials. There’s no prohibition against a public agency hiring moderators or “referees.”
On Aug. 31, Council Member Patricia Mahan questioned Santana about the forums, after receiving “emails, texts and calls” about it. Santana replied that she was “checking with Brian [Doyle] and will be in touch when I have a response.” In the meantime, Mahan could “reach out on your own, as a member of the public to coordinate … such an event. I agree with you that these candidate forums are important as part of an election.”
Santana also sent Mahan a list of everything City Hall was doing to provide voter information via the City website, Inside Santa Clara, social media, mailers and the County voter guide about the new districts, the cannabis tax measure and the “advisory” vote on whether the City should elect its Council by district (despite being under a court order to do so, which makes the $90,000 referendum pointless).
Round Three: No Now Means Maybe, New “Concerned” Party is the Ethics Committee
On Sept. 4, the Acting City Clerk published a second “clarification” of the original email to Jain that began with an attack on the Weekly’s editorial and a defense of the City Clerk’s office — although the editorial made no criticism of the Clerk’s office and its staff.
This “clarification” also included a considerable amount of editorial review of the Weekly’s opinion piece; at one point saying that “the article should have done a better job of distinguishing between the City Council Policy … and the fact that it is legally problematic for City staff to organize candidate forums,” and going on to accuse the Weekly of drawing “false conclusions that attempt to assign a wrong intent.”
This clarification now says forums in City buildings are OK as long as they’re sponsored by an entity City officials consider “neutral.” This memo includes the detail that library rooms are only available to those “who have a library account in good standing.”
Requests for Council Chambers are to be made to the City Manager, who presumably will make the decision about allowing its use. The City Manager will also decide how to handle any complaints and enforcement — particularly of the City’s Dark Money ordinance “which states any violation shall be considered a material breach of contract by a contracting party and ground for termination of the contract.”
The meaning of this, or its relevance to candidate forums, isn’t explained.
This memo included more discussion about the City-hired campaign ethics consultant. This time it was the Ethics Committee instead of the City Manager and Attorney questioning the campaign ethics consultant’s role as a “referee.”
This role “does not appear to have been clearly analyzed and resulted in a review by the Ethics Committee who recognized the shortcomings of attempting to adjudicate violations not necessarily within the City’s jurisdiction,” says the memo. “The Ethics Committee was unable to come to a recommendation.”
There are no agendas or minutes recording such a meeting or discussion, and there is no record that the Ethics Committee has actually met since November 2017 — although a July 2, 2018 meeting wasn’t marked “canceled,” there is no published agenda or minutes for it. There is no public record that the Council ever heard about this discussion.
Council Member Debi Davis chairs the committee with Mayor Lisa Gillmor (alternate) and Vice Mayor Kathy Watanabe making up the membership.
Round Four: Santana “Fully” Supports Candidate Forums
After San Jose Inside published a report on the brouhaha on Sept. 5, City Manager Santana issued her statement saying, “several local media outlets have falsely attributed to me and the City Attorney a decision to terminate candidate forums and the hiring of an outside consultant for the November 2018 election. I would like to set the record straight that neither of us as made such a decision and that [it] would exceed our role and authority.”
This contradicts the City Clerk’s communication on Aug. 30 that because of “significant concern by the City Manager and City Attorney” “neither a Candidate Forum nor a Final Word Forum will be hosted by the City.”
Santana continued that she was attaching her emails which showed that, “I support transparency; that I support that candidate forums take place; that on August 28 I requested the City Clerk consider issuing a more complete and thorough response, and it is worth noting, that the City Clerk and I have facilitated the public discussion on this topic at the next City Council meeting.”
Council Member Mahan requested the agenda item.
Santana also said that it was “unfortunate that no one asked the City Attorney or City Manager for clarification.” The Weekly made six phone calls to the City Manager and City Clerk in the past week. None were returned.
City-Sponsored Forums — A Reasonable Expectation
The City policy, “Televised Candidates Forum,” states in no uncertain terms that “It is the policy of the City of Santa Clara to allow the holding of a Candidates Forum in City Council Chambers to be broadcast live …and re-broadcast four times.”
The policy, approved by the Council in 1996, has considerable detail about allowable City support — including providing Council Chambers for free, broadcasting and recording the forums, room logistics, managing candidate communications and advertising through City channels.
The City Manager’s discussion of the policy is limited to two phrases: “minimal assistance” and “League of Women Voters.” The City Manager reads “minimal assistance” as a limit not to be exceeded, but it can also mean a minimum level of support that must be provided.
The policy states that the League of Women Voters or another “outside neutral organization will organize the forums.” Past organizers include the CAC and local newspapers as well as the League of Women Voters.
The list of moderators includes Santa Clara “senior statesmen” such as Austin Warburton and Santa Clara University and San José State professors. SCU political science professor Dr. Tom Shanks moderated the forums for many years and was followed by retired California Assemblyman and Santa Cruz County Treasurer Fred Keely, who conducted the City-sponsored forums in 2016.
The policy says nothing about the campaign ethics program, which began during Mayor Judy Nadler’s administration in the 1990s, or its administration. However, by the early 2000s this was such a regular feature of elections that the default was that it would continue, not that it would stop if no one mentioned it.