Palo Alto Weekly

News - June 21, 2006

Council members don't want to know

Only one, Yoriko Kishimoto, requested information about Utilities scandal investigation — and was denied

by Bill D'Agostino and Jay Thorwaldson

A year after the City Council funded a $300,000 investigation into misconduct by Utilities Department employees, only one of the governing group's nine members asked to see the findings of the six-month effort.

"As a representative of the people I kind of feel I need to understand, the best I can, what's happening behind the scenes," said Vice Mayor Yoriko Kishimoto, whose request to see the documents was denied by city staff.

Nineteen employees were disciplined — including six who quit or were fired — for their actions. The reports detailed the misconduct.

Last year, the Weekly asked to see the paperwork but was denied by city officials, who claimed the documents were protected because they were private personnel files. City officials told Kishimoto the same thing.

"I just remember just being told that I didn't have to see the personnel files," Kishimoto said.

Asked how she felt about the denial, Kishimto said: "I suppose the truth is I felt probably as frustrated as many citizens did."

The Weekly then sued the city in September, arguing that the egregious nature of the employees' actions overwhelmed any rights of privacy because of the public's right to know how their city is being run.

Santa Clara County Superior Court Judge Kevin E. McKenney ruled June 7 that most of the paperwork the newspaper requested would be released — after the names of the employees were redacted (blacked out) — but that two documents are still private because they fell under attorney-client protection.

The Weekly on Monday requested to argue the attorney-client-privilege point with full legal brief and a hearing, to which McKenney agreed. Judy Alexander, representing the Weekly, has until June 30 to file a brief and Senior Deputy City Attorney Donald Larkin was given until July 14 to respond.

McKenney set a hearing date for July 31.

He also ruled that the materials to be released should include heretofore confidential declarations by City Manager Frank Benest, Assistant City Manager Emily Harrison and City Attorney Gary Baum.

The council was scheduled to consider whether to file an appeal of the lawsuit Monday night in a closed session on litigation, but Larkin told McKenney on Monday morning an appeal is "very unlikely."

The Weekly hasn't decided its own course of action, Alexander told the judge.

McKenney said information that may be redacted on individual employees includes their names, titles, Social Security numbers and home addresses.

Up to this point, the only public information released about the scandal was a two-page summary stating there were numerous alleged problems, including employees using city equipment for private work, charging the city overtime for private work, harassing other workers and failing to properly manage subordinates.

The eight other council members said they did not request the files for a variety of reasons.

Some said they believed the investigation was done well and saw no reason to double-check the work of the investigator or Benest, who oversaw the effort.

"Based on the disciplinary actions announced it seems to be a comprehensive investigation and response," Councilman Bern Beecham said.

Mayor Judy Kleinberg said if she thought the probe covered up problems within the city, it would "shake my sense of my government to the core.

"That would require a radical course of action," Kleinberg added. "I don't believe that's the case."

The city risked a lawsuit from the employees if it revealed the files, the mayor added.

"Sometimes it may be costly, very costly. Your risk level is going to be higher to err on the side of open government," Kleinberg said.

Councilman Jack Morton refused to say whether or not he requested the information. He argued that a reporter's questions about whether he did so were inappropriate.

Asked how he could review Benest's performance if he didn't see the files, Morton sounded shocked at the question.

"When I review an employee I don't go and review everything he does," he said. "It doesn't make any sense."

Morton compared such a request to a newspaper editor going back and re-interviewing a subject of a story to make sure a reporter is being accurate.

Councilwoman Dena Mossar said she didn't think to ask about the files because the matter was a personnel issue.

Councilwoman LaDoris Cordell also said she felt the investigation dealt with personnel issues, but added she may ask questions about broader organizational issues.

Three new members joined the council this year, after the investigation had been completed. All said the files reported on matters that happened before their tenure, and therefore were not of high importance to them.

"I'm not going to go back and redo things another council has done," Councilman Larry Klein said.

"I never thought to look into that," Councilman Peter Drekmeier said. "Perhaps I should or perhaps I should let bygones be bygones."

Councilman John Barton said he was interested in the files, and still might seek them, but hadn't yet because the indiscretions "happened not on my watch."

Nevertheless, Klein said he was pleased with the judge's decision.

"I didn't like the idea that the city was keeping all that stuff secret," he said. "I'm glad to see some of it coming of out."

Should or shouldn't the City Council members have asked to see the results of the Utilities Department investigation? Talk about it at Town Square on Palo Alto Online, www.PaloAltoonline.com.

Staff Writer Bill D'Agostino can be reached at bdagostino@paweekly.com.

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