REPORT TO COUNCIL
SUBJECT
Title
Action on Whether to Accept a Formal Recommendation from the Task Force on Diversity, Equity, and Inclusion Regarding the City’s Model for Electing its Chief of Police
Report
COUNCIL PILLAR
Enhance Community Engagement and Transparency
BACKGROUND
On September 29, 2020, Council established the Task Force on Diversity, Equity, and Inclusion to support the development of a Santa Clara Plan to address the four (4) components of former President Obama’s “Commit to Action” Initiative (Attachment 1). The report (RTC 20-875) from Mayor Gillmor and Chief Nikolai on this issue included a proposed mission statement, timeline and goals for the Task Force as well as a defined role for City staff to support the Task Force (Attachment 2). Specifically, the Task Force mission statement reads as follows:
In response to the national call for police use of force reform, the City of Santa Clara created the Task Force on Diversity, Equity, and Inclusion. Through an open dialogue with the communities of Santa Clara and directed by community input, the Task Force shall make recommendations for changes in government policies, structures, services, and culture that negatively impact or do not fully benefit historically disenfranchised communities. The Task Force will continuously involve the communities on recommendations and progress.
The Task Force’s workplan for the first year included the following objectives:
1. Identify and make recommendations to complete the appointment of a seven-member Task Force;
2. Develop a robust community engagement process to ensure that the voices of communities of color are incorporated as the Task Force develops its policy and strategy recommendations. This would include conducting community listening sessions to facilitate public dialogue regarding systemic inequalities with issues identified serving as the basis for the Task Force’s future work; and
3. Report the findings and make recommendations to the Council that would reform the City’s police use of force policies and any governmental policies, structures, or culture that negatively impact or do not fully benefit historically disenfranchised community.
As an official advisory body of the City, the Council also approved the assignment of City staff and resources to provide support to the Task Force. The Task Force has worked diligently to advance its goals through the work of five subcommittees:
1) Community Communications; 2) Consideration of Historical Recognition; 3) Policing & Community Engagement/Relations; 4) Community Listening Sessions Working Group; and 5) Advisory Member Selection.
At the September 13, 2021 Task Force meeting, the Chair of the Task Force reported on the Policing and Community Engagement/Relations Subcommittee’s (Subcommittee) recent work with the Police Department. Included in that report was a request to discuss the City’s model of an elected Chief of Police. This was further expanded to include a discussion of the elected City Clerk.
At the October 18, 2021 Task Force meeting, the City Manager advised the Task Force that the Council had previously conducted a review of the elected positions through a Charter Review Committee and relevant background materials were provided. The Task Force was advised of the need to consult with the City Attorney’s Office to ensure that any proposed action did not inadvertently result in a Fair Political Practices Commission (FPPC) or Political Reform Act violation. The City Manager requested time to consult with the City Attorney’s Office.
On November 2, the Chair of the Task Force requested that a letter (Attachment 3), drafted by the Subcommittee, to “formally recommend that the City preserve, reinforce, and celebrate its commitment to having an elected Chief of Police” be placed on the November 8, 2021 meeting of the Task Force. An item to provide background on this topic was added to the Task Force’s November 8 meeting. The report (RTC 21-1311) with background information on the elected Chief of Police and City Clerk positions is included with this report as Attachment 4.
After discussing the matter with the City Attorney’s Office, the City Manager, at the November 8th meeting, stated that formal action by the Task Force could be an inappropriate action given that a potential ballot measure was being considered by the Council and that the remedy was to seek the Council’s approval on whether the Council would like the Task Force to take action on this matter.
Because approval of the Subcommittee’s letter was not on the agenda, the Task Force was not able to take action on the merits of the recommendation. Nevertheless, the Task Force passed a motion to submit their letter of recommendation as drafted by the Subcommittee to the Council. As multiple motions were made, it is unclear whether the Task Force understood that the final motion would advance a recommendation the merits of which had not been discussed by the full Task Force or without an opportunity for the public to provide input. The motion passed on a 5 to 1 vote.
DISCUSSION
Based on the City Charter, the City Manager is the head of the administrative branch of the City government, responsible to the Council for the proper administration of all affairs of the City. The City Manager is an ex-officio member of all boards and commissions and serves as chief liaison officer between such bodies and the City Council, but shall have no vote thereon. Accordingly, the City Manager has an obligation to ensure that legislative action of potentially political nature does not occur. The City Manager is also obligated to surface potential concerns related to the Task Force’s proposal given her knowledge of the Council’s prior actions to schedule discussion of a potential ballot measure about an elected police chief for its February 2022 Priority Setting Session. This is within the context of the Council’s interest on this topic which has been expressed several times over the year through the two Priority Setting Sessions and at the Council Governance and Ethics Committee.
Given the continued interest of the Task Force, the City Manager advised the Task Force that the remedy is to seek Council direction on whether the Task Force should proceed with a formal recommendation in advance of a potential ballot measure decision, noting that if Council wanted to take the risk to have the Task Force develop a recommendation on a potential ballot measure, it could. Should the Council wish to accept the Task Force’s recommendation at this time, the Council should take into consideration the following:
1. The City Council has already identified this issue as a potential ballot measure for November 2022 and is scheduled to consider the item on February 8, 2022 (the Council’s annual Policy Priority Setting Session). Staff has been asked by Council to bring this issue to both the Governance and Ethics Committee and the 2022 Priority Setting Session. It is already on the Governance and Ethics Committee workplan.
2. A recommendation from the Task Force at this time could potentially have the consequence of inappropriately swaying voters should the Council decide to proceed with placing the item on the November 2022 ballot, given that a legislative advisory body established by the City Council has taken action on such matter.
3. It is not a practice for Council-appointed advisory bodies to take positions on potential ballot measures without specific Council direction and the Task Force could be viewed as exceeding its role beyond the Council-directed scope.
4. The formal action taken by the Task Force to send the letter drafted by the three members of the Subcommittee directly to Council, against the advice of staff to seek Council direction first on whether to consider a letter in the first place, did not allow for discussion on the merits of the proposal by the full Task Force or the opportunity for the public to provide feedback - a concern raised by a member of the Task Force as doing so was not in alignment with the original direction to seek community engagement and public dialogue in the development of Task Force recommendations. In accordance with the action taken by the Task Force, the letter of recommendation is being presented without full Task Force action on its merits or public input.
5. The letter of recommendation from the Task Force Subcommittee (Attachment 3) states, “the policing subcommittee has attended over 15 hours of trainings with the police department, gained additional in-person experience with officers on duty, and engaged in a series of policy conversations with the Chief of Police and Assistant Chiefs. During this review process, the Task Force reviewed police department policies and learned about ways in which Santa Clara differentiates itself from other cities.” While it is unclear whether these policy discussions specifically addressed the issue of an elected versus an appointed Chief of Police, the mere fact that those discussions resulted in a recommendation to reaffirm an elected model is cause for concern - particularly given the direct involvement of the current elected Chief of Police.
6. Several members of the Task Force questioned the role of City Manager in supporting the Task Force, expressing their understanding that the Task Force was independent per Council action. As noted above, the City Charter states that the City Manager is responsible to the City Council for the proper administration of all affairs of the City. The City Manager is an ex officio member of all boards and commissions and serves as chief liaison officer between such bodies and the City Council. Moreover, the report establishing the Task Force (RTC 20-875) states “meetings of the Task Force will be subject to the Brown Act”. As such, the City Manager and City Attorney are duty bound to advise the Task Force (and the Council) of any action that might violate or have the potential to violate State Law, the Political Reform Act or Fair Political Practices Commission rules and/or other regulations. The Task Force is not an independent advisory body, they are subject to the same rules that govern all Council directed and established legislative and advisory bodies.
7. As an advisory body under State law, the Task Force must follow Brown Act rules.
The definition of “legislative body” under Government Code 54952(b) is, “A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.”
8. Disclosure by the City Manager to the Task Force that advisory bodies must also comply with the Political Reform Act and that labeling a body as “advisory”, or any other term does not exempt it from the Political Reform Act.
At this point, the Task Force has taken action to transmit its letter of recommendation in support of the City’s model of electing its Chief of Police. The City Manager has disclosed the risks involved in doing so to the Task Force and is advising the Council of the risks via this memorandum. Having completed the due diligence to advise both the Task Force and the Council of her concerns regarding the Task Force’s actions, the City Manager desires to create a public record and remove herself from any, and all, potential violations of the Political Reform Act or FPPC regulations. By surfacing the legislative concerns and potential for risk, the City Manager has properly disclosed the risk and removed herself from it by presenting it to the City Council for its own action. However, it is unclear whether the Task Force would be removed from FPPC or Political Reform Act violations if the Council authorized such action.
As background, the City Manager explained to the Task Force that election related manners draw public scrutiny and that the public has a right to file complaints if they think inappropriate actions have been taken. She added that on the part of the City, she has been the subject of many election related complaints and, because of her diligence on these matters, none of the complaints have been found to be valid. She was concerned that this action may not have such finding and does not want to be personally held responsible for such action to the public, Council, and/or appropriate agencies that regulate election related matters.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.
FISCAL IMPACT
There is no fiscal impact other than staff time.
COORDINATION
This report was coordinated with the City Manager’s and City Attorney’s offices.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email clerk@santaclaraca.gov <mailto:clerk@santaclaraca.gov>.
RECOMMENDATION
Recommendation
Provide direction on whether to accept the formal letter of recommendation from the Task Force on Diversity, Equity, and Inclusion in support of the City’s model of electing its Chief of Police and hold harmless on this topic the City Manager from any and all actions that may violate the Political Reform Act or FPPC regulations.
Staff
Approved by: Deanna J. Santana, City Manager
Sujata Reuter, Assistant City Attorney
ATTACHMENTS
1. Commit to Action Pledge
2. RTC 20-875
3. Policing and Community Engagement/Relations Subcommittee’s Letter
2. RTC 21-1311