Uploaded: Mon, Aug 25, 2014, 9:47 am
Holman cleared by FPPC after 'conflict of interest' claim
State commission: Palo Alto councilwoman didn't violate Political Reform Act
Palo Alto City Councilwoman Karen Holman did not violate state law when she urged city staff to explore rezoning sites on Arastradero Road despite her financial relationship with the owner of one of the sites, the Fair Political Practices Commission has concluded.
The FPPC's investigation was prompted by an anonymous complaint, which was filed with the agency on July 16. When asked about the allegations earlier this month, FPPC spokesman Jay Wierenga said the agency was planning to review the complaint to determine whether it was worth further investigation.
Last week, the commission determined that Holman did not violate the "conflict of interest" provision of the Political Reform Act and that the commission will not spend any more time investigating Holman, who is now running for her second term on the City Council. Holman is well-known for her resistance to dense new developments and advocacy of increased government transparency.
The commission informed Holman of its decision in an Aug. 22 letter from Gary Winuk, chief of the commission's enforcement division.
"After review of the documents received in our initial assessment, we determined there was no violation of the Act, and therefore, no further enforcement action will be taken at this time," the letter reads.
The anonymous complaint alleged that Holman's advocacy of rezoning these housing sites from R-1 (single-family residential) to R-30 (which would allow more density at 30 housing units per acre) "seems to be motivated by an expectation of future business, and monetary payments from Steve Pierce." Pierce is a Realtor with Zane MacGregor who owns one of the Arastradero parcels.
In April and May, Holman suggested during meetings of the council's Regional Housing Mandate Committee that the city explore the idea of adding workforce housing on the 600 block of Arastradero. Pierce had urged the committee to consider rezoning these parcels, characterizing them at the April 10 committee meeting as "good sites for denser housing."
The idea of rezoning the sites quickly fizzled, with only Holman proposing further exploration. Her advocacy, however, prompted allegations from her colleagues about Holman's potential conflict of interest. While she listed Zane MacGregor on her Form 700 as a source of income, she did not mention her financial relationship with Pierce at either of the committee meetings where the sites were discussed. The issue didn't emerge until June 4, when the full council was taking up the subject of the Housing Element, a state-mandated document in which the city lists sites that could be rezoned to accommodate more housing. The complaint claimed that Holman is using the Housing Element process to rezone the sites, a move that would financially benefit Zane MacGregor.
"Holman is using her considerable powers as a City Council member to attempt to effectuate an 'up zoning' from R-1 to RM-30 through the back door of the Housing Element," the complaint states. "Placing a site in the Housing Element requires the City to rezone that site to make it consistent with the Housing Element within one year; therefore placing a site in the Housing Element effectively rezones it without public scrutiny."
While she publicly disclosed her financial arrangement with Pierce and recused herself from the council's discussion of the Arastradero sites on June 4, her prior advocacy of the "workforce housing" concept prompted concerns from her colleagues. Councilman Greg Scharff, who also sits on the housing committee and is seeking re-election this year, said her failure to recuse herself from discussing the sites during April and May meetings constituted a conflict of interest. Scharff said he had mentioned his concern to Holman during the May meeting.
On June 9, council member Larry Klein made a similar point while recusing himself from a discussion involving Stanford University (where his wife is on the faculty). Klein emphasized the decision to recuse is one that each council member has to make and not one made by the city attorney. Vice Mayor Liz Kniss also asked City Attorney Molly Stump to clarify the rules for recusing. Kniss subsequently told the Weekly that her call for a clarification was prompted by media reports about Holman's prior failure to recuse herself from the discussions involving the Arastradero sites.
Holman has maintained that the criticism she has been receiving for her financial relationship with Pierce has been purely political. After learning about FPPC's finding, she reiterated that "there was never any factual basis for these false accusations" and said she was "delighted the FPPC has definitively confirmed this fact."
"The FPPC typically sees a spike in these kinds of politically motivated claims during election times, and I chalk it up to what's begun as a rather nasty political campaign season," Holman said in a statement.
She called it "unfortunate that my detractors stooped to false innuendos and anonymous accusations to contrive the appearance of a conflict of interest."
"My business relationship with Mr. Pierce is based on our common interest and my training and expertise in the preservation of historic properties," she said.
Holman told the Weekly that her consulting arrangement with Pierce goes back more than a decade and includes numerous payments ranging from a few thousands dollars to one a little under $50,000. On her Form 700 for 2013, the payments from the firm are listed in the $10,000-$100,000 range, though she told the Weekly that she had not received any payments from Pierce since May 2012. This disparity was highlighted in the anonymous complaint, which alleges that it would be perjury for Holman to list the firm as a source of income in 2013 if she in fact has not received any money from the firm.
Holman said she wanted to list the firm as an income source in order to "identify for the public any potential conflicts of interest."
"Because I may or may not be getting any future income from that source, it seemed to me that the transparent thing was to list them as a source of income," she told the Weekly.
Holman said she had changed her form to clarify that she did not receive any income from Zane MacGregor in 2013. She also said she hopes that her exoneration by the FPPC will put an end to the accusations and allow her to focus on local issues such as "over-development, parking, retail retention, and preservation of our neighborhoods." She is one of 12 candidates running for five council seats in November, a field that also includes Scharff and Mayor Nancy Shepherd.
"I'm hoping this will be put to rest and put aside so we can talk about real issues that are facing Palo Alto," Holman told the Weekly.
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Posted by Wayne Martin
a resident of Fairmeadow
on Aug 26, 2014 at 11:16 am
I am having problems with some of assumptions of the local media reporting, and the comments of some posters. Perhaps some one can help me out with the points with which I am having problems?
While the FPPC does accept "anonymous" complaints over the telephone, none of the local media reports indicates that this was a "phone tip". Moreover, it's my understanding that the FPPC does not make the existence of these complaints known, such as posting them on its web-site.
A. Sworn Complaint
The law provides that if you suspect a violation of the Act you may file a sworn complaint with the FPPC (Gov. Code Sec. 83115).
The Act and FPPC Regulations provide that a sworn complaint filed with the FPPC entitles the complainant to certain rights and processes, described below. A sworn complaint must comply with certain requirements. Using the complaint form and providing as detailed information as possible will assist the FPPC in processing your complaint. At a minimum, you must do all of the following:
1. Submit your complaint in writing.
2. Sign the complaint under penalty of perjury.
3. Identify the person(s) who allegedly violated the Act and list the specific provisions the person(s) violated.
4. Describe with particularity the facts constituting the alleged violation and provide any evidence to support the complaint.
5. Include names and addresses of witnesses, if known.
The FPPC may only act on complaints alleging violations within its jurisdiction. In order for us to process your complaint, all of the pertinent information the form asks of the complainant must appear on the form, not as an attachment. The complaint must state a specific violation of the act including the date on which it occurred, and must also state how you have personal knowledge of the violation. It may be helpful to contact our Enforcement Division prior to filing a complaint to determine whether the activity presents an issue on which the FPPC has jurisdiction to act. For immediate assistance from the Enforcement Division,
C. Anonymous Complaints: Toll Free "tip line" 800-561-1861 If you do not want your name disclosed in connection with your complaint under any circumstances, you may call 800-561-1861 on Monday through Friday, 9:00 a.m. to Noon and 1:00 p.m. to 4:00 p.m., and make the complaint anonymously. Commission staff will evaluate your claims and has the authority to pursue a complaint on its own initiative.
If the complaint were submitted via a signed formit's my belief that the FPPC would not release that information, meaning that FPPC complaints are generally "anonymous" in all cases. If the submitter wants to tell the mediathat's their prerogative. But it would seem an unwise thing to do if one is not certain about the points of law in question, and is seeking the FPPC's help to sort out the perceived problem.
So, early on, only the complaint submitter, the FPPC, and the person who is the object of the complaint know about the complaint. Sohow did the media find out about the complaint?
The link in the article points to a lot of background for the FPPC, but the actual complaint form is not present. This is important, since the submitter would need to clearly specify the problem he/she thinks the covered public official has with the law. I also don't believe that the FPPC would provide the complaint, or any background material upon requestbut I could be wrong on that point. Sohow did the media become aware of the complaint, and how did they get the background material? If the media knows who the complainant iswhy shouldn't they be expected to reveal their source, as so many people are claiming the submitter should do?
Complexity of CA Ethics Laws
From researching this area for a bit, I have come to the conclusion that the Ethics Code is incredibly complex, and that very few people in California understand it. Point of exampleboth Council Member Klein and Scharff have been quoted as telling Holman that she had a "conflict of interest". Neither has been asked to explain themselves in detail, but at the momentit would appear that both were wrong in their assessment of Holman's situation. Of course, Holman had improperly filed her Form 700 last year, so perhaps these two gentlemen did not have the correct financial information with which to make their assessments.
What's a little disturbing is that when two, top-of-the-line lawyers, both on the City Councilmake a claim that another City Council Member has a conflict of interestand neither does anything about it, such as file an FPPC complaint immediately. We all are left to wonder who/when such a complaint should be filed? Certainly these big-time lawyers are in a better position to craft a meanngful complaint than the rest of us ordinary people.
We are also left with the silence of the other Council members. Did they understand what Klien/Scharff were saying? If so, why would they sit on the sidelines and say nothing?
Many people have posted that sentiments along the following lines"if it looks wrong, then it is wrong" (or words to that effect). Unfortunately, this is not the case where breach of ethical conduct is concerned (in the realm of State government). There are tests which can be applied that provide one the information to believe that a violation of ethics has occurred. nfortunately, wading through this topic is about as much fun as walking in a swamp with snow shoes on, so few actually acquire the knowledge as to what these tests are, and how to apply them.
Determination of "No Finding" vs "Exoneration"
When the FPPC decides to not pursue a complaint beyond its initial review, this would seem to me to be a determination of "no findings". The FPPC had decided (via is internal processes) to not investigate the complaint. This determination does not "exonerate" anyone. It simply states that in the FPPC's opinion, that there is not enough information supplied in the complaint to proceed. If the FPPC had proceeded, and exhaustively investigated the complaintthen it's findings would be different, but it's unlikely that any public agency would ever claim that it's investigation actually "exonerated" any person subject to its scrutiny. Declining to investigate a complaint also does not prove that any charges/allegations were false.
Moreover, this refusal to proceed does not preclude another complaint be submitted in the future, should additional information become available.
I hope that people will spend some time trying to review the California Ethics Code. It's not much fun, but it is the law that we have to deal with.
If anyone can help me better understand some of these issues, I would be appreciative.
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Posted by Mark Weiss
a resident of Downtown North
on Aug 26, 2014 at 8:30 pm
Mark Weiss is a registered user.
For the record, I met Karen Holman while campaigning for the 2009 City Council seats. She was a planning commissioner at the time, while I was a Gunn graduate (where I was an honor student, in student government, in theatre, a varsity athlete and league champion and two-time Editor in Chief of the newspaper), dating an arts commissioner (still am), running my two small businesses and trying to follow the suggestions of people like Sid Espinosa and Peter Drekmeier who advocated "civic engagement". I got 800 votes, but learned a lot, and started to develop a thick skin and an appetite to learn more about self-governance and Democracy in these trying times. Karen was an exemplary ally, in that she took the time to get to know some of the fellow candidates (compared to Larry Klein, who gives me, constantly a cold shoulder, for instance -- by the way, Nancy Shepherd also developed a rapport with me, although I at times have disagreed with some of her actions).
For five years, as I continue to track policy, and as of fall, 2010 write about it on Plastic Alto, my blog, Karen Holman has kept a line of communication open to me.
So as I have campaigned for Council (after getting nearly 6,000 votes in 2012, all without spending a dime, in a time when seated candidates spent on average $20, 000) these last 30 days, I thought about the incumbents, especially in the wake of the Grand Jury report of June 16, 2014 and the referendum of 2013. I have seriously thought about voting for 0 incumbents (and therefore myself and four other challengers) or voting back in all 3 (because in certain ways Greg Scharff and I are experiencing a type of glasnost, although I disagreed with a lot of his actions and tactics in the ensuing years).
So, despite it's awkwardness, I announced I am voting for Karen, after I vote for myself -- in my imaginary-rank-choice ballot. She is one of my five choices, with the other three remain to be seen. There are 60 more days in the campaign.
There is no one on Council or Commissions that I would refuse to work shoulder-to-shoulder with, for the good of the community. I give them hell on my blog, here sometimes and at times it gets dicey in person -- for instance when Vino Locale sat Terry and I at a captains table with Pat and Sally Burt and two other couples, on St. Patricks day, a few days after Pat and I went at it after he objected to my giving him the business online or on my blog -- and ironically, or fittingly, I was questioning his tone and believability over....27 UNIVERSITY. But I still hit up Pat from time to time, for instance, I saw him at the Mads Tolling show at Mitchell Park and asked him about 456 Uni. Also, people point out that as I lobby for A NEW PARK AT VENTURA, ON FRY'S PROPERTY, 15 ACRES, Pat is given credit for bringing Heritage Park to fruition, so he may come on board as my ally.
Politics makes strange bedfellows.
I recommend attending some of the campaign events and not relying on the internet.
So, yeah, this is me. (You can check that my cross-referencing my blog; I tend to back up my posts there).
Thank you Karen for your years of service, good luck, but yeah, watch your step, sister!
That's for the person who objects to my use of the term "man-up". It's from the Broadway show by the founders of South Park.
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