Dear Mayor Cutter, Council Members Cox, Hernandez, Thomas, Lee, Lopez, and Ballew:
We write as a a group of concerned citizens, that City Manager Chris Zapata is violating City of San Leandro Municipal Code Section 405.
SECTION 405: CITY MANAGER: POWERS AND DUTIES.
The City Manager shall be responsible to the Council for the proper administration of all affairs of the City, and:
(a) shall appoint, remove and discipline all administrative officers of the City, except as otherwise provided by or pursuant to this Charter;
Earlier this year an Ethics Violation was filed against Director Cynthia Battenberg.
Ms. Battenberg is the head of Community Development and oversees Building, Code Compliance and Planning.
Director Battenberg reports directly to City Manager Zapata.
She is an Administrative Officer of the City.
The Ethics case that was brought forth was investigated and adjudicated by Ms. Emily Hung, a Human Resources Manager. She carbon copied Assistant Manager Jeff Kay.
Mr. Jeff Kay concurred with Ms. Hung on the appeal that was raised. Both those letters are attached and made part of this complaint.
Neither Ms. Hung or Mr. Kay are City Managers. Both directly report to the City Manager as does Ms. Battenberg.
Furthermore, neither Ms. Hung nor Mr. Kay have any background or expertise in conducting internal affair investigations from what we gather. Furthermore, they did not follow up on any of the leads contained in that complaint. We did. And we will be filing a subsequent complaint with more evidence that clearly was not gathered by them. However, there is only so much we can do.
To recap:
SECTION 405 is clear that it is the City Manager - not the Office of City Manager, not Human Resources, a Division of the City Manager, not the Assistant City Manager - that is to discipline the Administrative Officers of the City.
Mr. Zapata is, of course free to use other resources, including Staff members to assist him, however the responsibility is his and his alone to discipline.
We ask that the earlier case that was brought forth in March of this year be re-tried by Mr. Chris Zapata - as required by Section 405 of the Municipal Code.
Another complaint against Ms. Battenberg with more evidence gathered by us will be filed under Section 405 - this too needs to be adjudicated directly by him. We would like an assurance that this will be adjudicated by Mr. Zapata and in a manner which conforms to acceptable practices for these types of investigations.
We understand that neither the Mayor nor the Council may discipline or remove any member of Staff - except one - and that is Mr. Zapata. That is why our Complaint is so important. So the people and their elected representatives have some oversight thru Mr. Zapata - his judgment and handling of the case can be a factor in determining his on-going service to the people of San Leandro. During his next review the people should ask if Mr. Zapata knew of this case and why he chose to delegate it.
Furthermore, we believe the Council needs to study this case carefully. Other cities have reformed their Municipal Code because cases such as these led to a re-evaluation of existing policies. These reforms did not appear out of the blue. It happened because citizens raised ethical issues against City employees. We believe this case does that.
San Leandro is now a city of 85,000 people and its policies need to be updated. Both Ms. Hung and Mr. Kay write that no City policy has been violated by Ms. Battenberg. We sadly agree. This is because the entire Ethics and Discipline policies are contained in Section 405. However, it is clear that Section 405 and the Municipal Code are lacking even the most basic Ethics protections as mandated by CA state law which San Leandro is required to follow.
Policy Change #1: Whistle-Blower Ordinance
Many Cities now have a Whistle-blower ordinance that protects City Employees who report allegations of wrong-doing from retribution. This follows California State law (GOVERNMENT CODE SECTION 8547-8547.12). Some cities extend this to citizen whistleblowers. We believe from what Mr. Gary Porter of Canyon Design Build initially said, that Ms. Battenberg engaged other San Leandro employees (OMITTED) when she told a private contractor to not take a private job at a meeting that took place in City of San Leandro offices. All City Employees and others should have this protection in place to allow them to speak freely if they so choose.
Policy Change #2: Independent Public Ethics board to review complaints
We understand why Section 405 came into being. The intent was to prevent elected officials from exerting nefarious influence on City Administration. However, the flaw in this policy is that it provides no oversight on Staff. Many cities have moved to a Public Ethics Commission/Boards which brings independence and oversight to all levels of government administration. These Boards provides an important Check and Balance compared to a system that relies on self-policing. In this case, we recommend that Mr. Zapata hire an independent 3rd party to properly investigate the allegations that have already been brought forth against Ms. Battenberg and the new ones that will follow - as there are certain parts of the complaint that require more evidence than we as citizens can gather. The San Leandro police department has an internal affairs department, which given Ms. Battenberg’s Enforcement role, is an analogous situation and can serve as model. Mr. Zapata is free under current Municipal Code to rule as he deems fit once the investigation is thoroughly and competently conducted. The investigation and its findings should be done independently and without the appearance of a bureaucracy that it is protecting one of its own. The Mayor and Council does have the authority to compel Mr. Zapata to do so based on our reading of the Municipal Code and this needs to be done.
Going forward, the policy of letting Staff self-police / self-judge itself is dangerous and needs to be re-examined.
Policy Change #3: Adopting a provision around Conflicts of Interest and Personal Gain
Many cities have followed CA law ARTICLE 3. Conflict of Interest Codes [87300 - 87314] and enacted provisions that prohibit Conflicts of Interest for Personal Gain. In our upcoming Section 405 complaint, we will present evidence that Ms. Battenberg engaged a Oakland City Planner who appears to have given her special exceptions for her Variance and later she passed along a job opportunity to him at the City of San Leandro working under her authority. We believe this is a violation of CA law and a violation of Oakland’s Municipal Code - which expressly prohibits such behavior:
G: Influencing Prospective Employment. A Public Servant shall not make, participate in making, or otherwise seek to influence a governmental decision affecting a person or entity with whom the Public Servant is discussing or negotiating or has entered into an agreement concerning future employment.
(Ord. No. 13278, § 1, 12-8-2014)
We have examined and obtained our own evidence, (any private neighbor issues are not our concern), and there is little doubt in our mind of the following:
As it now stands the City of San Leandro has endorsed Ms. Battenberg’s actions by not taking any disciplinary measures. Given the lack of effort made by Staff to adequately investigate this with personnel not equipped to do so and to have her peers, not City Manager Zapata, adjudicate the matter and with the lack of CA state conforming Codes currently in place - this is not something that we as citizens can stand by and ignore. While we understand no one wants to deal with ethical issues, we trust you appreciate our efforts to shed light on this so needed reform can take place.
The three items that we ask for are:
We think this from The City of Berkeley in its 2017 Ethics Audit is something we as citizens should hope to get from our government:
Ethics in public service means more than just following the rules. It is a commitment by public employees to take individual responsibility for creating a government that has the trust and respect of the public. Establishment of a strong ethical climate is an essential part of maintaining that trust and providing a positive working environment. That requires clear communication, training, and leaders at all levels who are willing to listen and to act decisively to uphold ethical values.
WE TRUST IN YOUR LEADERSHIP to make this happen for the people of San Leandro who elected you to represent them.
Thank you,
Sam & Steve
Citizens for a Fair East Bay
[email protected]
Copy: City Attorney Richard Pio Roda, and City Clerk Tamika Greenwood
PS: Ms. Greenwood - can you please acknowledge receipt of this complaint, and that it will be given proper consideration and let us know from whom and by when shall we receive a formal reply to our complaint. Thank you for your assistance in this matter.
We write as a a group of concerned citizens, that City Manager Chris Zapata is violating City of San Leandro Municipal Code Section 405.
SECTION 405: CITY MANAGER: POWERS AND DUTIES.
The City Manager shall be responsible to the Council for the proper administration of all affairs of the City, and:
(a) shall appoint, remove and discipline all administrative officers of the City, except as otherwise provided by or pursuant to this Charter;
Earlier this year an Ethics Violation was filed against Director Cynthia Battenberg.
Ms. Battenberg is the head of Community Development and oversees Building, Code Compliance and Planning.
Director Battenberg reports directly to City Manager Zapata.
She is an Administrative Officer of the City.
The Ethics case that was brought forth was investigated and adjudicated by Ms. Emily Hung, a Human Resources Manager. She carbon copied Assistant Manager Jeff Kay.
Mr. Jeff Kay concurred with Ms. Hung on the appeal that was raised. Both those letters are attached and made part of this complaint.
Neither Ms. Hung or Mr. Kay are City Managers. Both directly report to the City Manager as does Ms. Battenberg.
Furthermore, neither Ms. Hung nor Mr. Kay have any background or expertise in conducting internal affair investigations from what we gather. Furthermore, they did not follow up on any of the leads contained in that complaint. We did. And we will be filing a subsequent complaint with more evidence that clearly was not gathered by them. However, there is only so much we can do.
To recap:
SECTION 405 is clear that it is the City Manager - not the Office of City Manager, not Human Resources, a Division of the City Manager, not the Assistant City Manager - that is to discipline the Administrative Officers of the City.
Mr. Zapata is, of course free to use other resources, including Staff members to assist him, however the responsibility is his and his alone to discipline.
- Mr. Zapata is thus in Violation of Section 405 for delegating this task to others and not taking responsibility as mandated.
We ask that the earlier case that was brought forth in March of this year be re-tried by Mr. Chris Zapata - as required by Section 405 of the Municipal Code.
Another complaint against Ms. Battenberg with more evidence gathered by us will be filed under Section 405 - this too needs to be adjudicated directly by him. We would like an assurance that this will be adjudicated by Mr. Zapata and in a manner which conforms to acceptable practices for these types of investigations.
We understand that neither the Mayor nor the Council may discipline or remove any member of Staff - except one - and that is Mr. Zapata. That is why our Complaint is so important. So the people and their elected representatives have some oversight thru Mr. Zapata - his judgment and handling of the case can be a factor in determining his on-going service to the people of San Leandro. During his next review the people should ask if Mr. Zapata knew of this case and why he chose to delegate it.
Furthermore, we believe the Council needs to study this case carefully. Other cities have reformed their Municipal Code because cases such as these led to a re-evaluation of existing policies. These reforms did not appear out of the blue. It happened because citizens raised ethical issues against City employees. We believe this case does that.
San Leandro is now a city of 85,000 people and its policies need to be updated. Both Ms. Hung and Mr. Kay write that no City policy has been violated by Ms. Battenberg. We sadly agree. This is because the entire Ethics and Discipline policies are contained in Section 405. However, it is clear that Section 405 and the Municipal Code are lacking even the most basic Ethics protections as mandated by CA state law which San Leandro is required to follow.
Policy Change #1: Whistle-Blower Ordinance
Many Cities now have a Whistle-blower ordinance that protects City Employees who report allegations of wrong-doing from retribution. This follows California State law (GOVERNMENT CODE SECTION 8547-8547.12). Some cities extend this to citizen whistleblowers. We believe from what Mr. Gary Porter of Canyon Design Build initially said, that Ms. Battenberg engaged other San Leandro employees (OMITTED) when she told a private contractor to not take a private job at a meeting that took place in City of San Leandro offices. All City Employees and others should have this protection in place to allow them to speak freely if they so choose.
Policy Change #2: Independent Public Ethics board to review complaints
We understand why Section 405 came into being. The intent was to prevent elected officials from exerting nefarious influence on City Administration. However, the flaw in this policy is that it provides no oversight on Staff. Many cities have moved to a Public Ethics Commission/Boards which brings independence and oversight to all levels of government administration. These Boards provides an important Check and Balance compared to a system that relies on self-policing. In this case, we recommend that Mr. Zapata hire an independent 3rd party to properly investigate the allegations that have already been brought forth against Ms. Battenberg and the new ones that will follow - as there are certain parts of the complaint that require more evidence than we as citizens can gather. The San Leandro police department has an internal affairs department, which given Ms. Battenberg’s Enforcement role, is an analogous situation and can serve as model. Mr. Zapata is free under current Municipal Code to rule as he deems fit once the investigation is thoroughly and competently conducted. The investigation and its findings should be done independently and without the appearance of a bureaucracy that it is protecting one of its own. The Mayor and Council does have the authority to compel Mr. Zapata to do so based on our reading of the Municipal Code and this needs to be done.
Going forward, the policy of letting Staff self-police / self-judge itself is dangerous and needs to be re-examined.
Policy Change #3: Adopting a provision around Conflicts of Interest and Personal Gain
Many cities have followed CA law ARTICLE 3. Conflict of Interest Codes [87300 - 87314] and enacted provisions that prohibit Conflicts of Interest for Personal Gain. In our upcoming Section 405 complaint, we will present evidence that Ms. Battenberg engaged a Oakland City Planner who appears to have given her special exceptions for her Variance and later she passed along a job opportunity to him at the City of San Leandro working under her authority. We believe this is a violation of CA law and a violation of Oakland’s Municipal Code - which expressly prohibits such behavior:
G: Influencing Prospective Employment. A Public Servant shall not make, participate in making, or otherwise seek to influence a governmental decision affecting a person or entity with whom the Public Servant is discussing or negotiating or has entered into an agreement concerning future employment.
(Ord. No. 13278, § 1, 12-8-2014)
We have examined and obtained our own evidence, (any private neighbor issues are not our concern), and there is little doubt in our mind of the following:
- That Ms. Battenberg withheld knowledge of code violations in return for personal gain in a Variance application (blackmail/extortion) in Oakland. We believe this behavior is ethically wrong for someone in charge of Code Compliance.
- That Ms. Battenberg has a history of Building Code Violations in her home. We believe this behavior is ethically wrong for someone in charge of a Building Department.
- That Ms. Battenberg omitted a shower in her 2015 Variance application and mis-led Staff regarding the number of full baths her house contained. She signed the Application under penalty of perjury. We believe this behavior is ethically wrong for someone in charge of a Planning department.
- That Ms. Battenberg compelled a private contractor to not take a job. There is circumstantial and hearsay evidence that she did so at a meeting in her San Leandro office - a meeting with the Head of Building, Mr. Jerome Smith. We believe this is a violation of State Law.
- That Ms. Battenberg engaged a Oakland City Planner who appears to have given her special exceptions for her Variance and later she passed along a job opportunity to him at the City of San Leandro working under her authority. We believe this is a violation of State Law.
As it now stands the City of San Leandro has endorsed Ms. Battenberg’s actions by not taking any disciplinary measures. Given the lack of effort made by Staff to adequately investigate this with personnel not equipped to do so and to have her peers, not City Manager Zapata, adjudicate the matter and with the lack of CA state conforming Codes currently in place - this is not something that we as citizens can stand by and ignore. While we understand no one wants to deal with ethical issues, we trust you appreciate our efforts to shed light on this so needed reform can take place.
The three items that we ask for are:
- That the Complaint brought forth earlier be reviewed and settled by Mr. Zapata
- That future Complaints against any of his direct reports, including Ms. Battenberg, be settled by him and that an independent 3rd party versed in these investigations be brought in so Mr. Zapata can take the proper disciplinary action after the findings are adequately presented.
- That a review and change in San Leandro’s municipal code take place so that it is brought up to CA state law. And moreover revise the municipal code so that it provides adequate safeguards for the people of San Leandro against unethical acts committed by City Staff. The nearby cities of Oakland, SF and Berkeley can all be used as models for San Leandro. This needs to be followed up by proper training and supervision to ensure its adoption.
We think this from The City of Berkeley in its 2017 Ethics Audit is something we as citizens should hope to get from our government:
Ethics in public service means more than just following the rules. It is a commitment by public employees to take individual responsibility for creating a government that has the trust and respect of the public. Establishment of a strong ethical climate is an essential part of maintaining that trust and providing a positive working environment. That requires clear communication, training, and leaders at all levels who are willing to listen and to act decisively to uphold ethical values.
WE TRUST IN YOUR LEADERSHIP to make this happen for the people of San Leandro who elected you to represent them.
Thank you,
Sam & Steve
Citizens for a Fair East Bay
[email protected]
Copy: City Attorney Richard Pio Roda, and City Clerk Tamika Greenwood
PS: Ms. Greenwood - can you please acknowledge receipt of this complaint, and that it will be given proper consideration and let us know from whom and by when shall we receive a formal reply to our complaint. Thank you for your assistance in this matter.