TO: Mayor and City Council
FROM: Ethical Person, Hope For City Manager
RE: Formal Ethics Complaints against Cynthia Battenberg, Former Community Development Director and the City of San Leandro’s handling of this matter
DATE: Anytime
Over the past year a series of Ethics Charges have been brought forth against Cynthia Battenberg, Former Community Development Director and the response of San Leandro Management in its handling of the matter.
City Manager Chris Zapata wrote a formal Memo to the Mayor and Council on September 27, 2017. Subsequently, another formal Ethics Complaint was filed on October 26, 2017 by Citizens for a Fair East Bay against Cynthia Battenberg with additional charges which have yet not been met with a formal response.
It is my belief that a formal response is required both to satisfy Municipal Code Section 405 and also in the best of interests of City of San Leandro in moving forward and learning from this episode. As noted above Cynthia Battenberg is no longer an employee of San Leandro so the specific questions of discipline no longer arise however this memo will serve to provide a guideline for how City Management will deal with these charges going forward.
I will summarize the charges against the Former Community Director into the following categories:
It is alleged that Ms. Battenberg came to a neighbor’s house and asked him to pay to remove a concrete retaining wall that Ms. Battenberg had improperly placed on his yard or else she would use her influence in the City of Oakland to report him.
There is clear evidence that subsequent to this alleged visit by Ms. Battenberg, that Ms. Battenberg secured an agreement from the neighbor that she would remove the wall in exchange for the neighbor’s agreement that he would not oppose her Variance application. In addition, Ms. Battenberg agreed to not report the Violations to the City of Oakland that she had found on her neighbor’s property.
The City of San Leandro does not condone this behavior. The City expects that any Enforcement officials - as head of Building and Code Compliance, the Community Development Director, oversees an Enforcement arm - should not personally gain from failing to report or enforce laws. It is a fundamental part of the job to enforce laws and report infractions. Looking the other way for personal favors does not reflect our Values and approaches criminal behavior.
Furthermore, the Variance process is an inherently democratic one. We expect citizens to be able to voice valid concerns relating to property issues and its effects on neighbors. We do not want neighbors finding code violations on each other and using that to secure their acceptance. This turns the Variance process into something other than its intended purpose. It undermines the entire set of procedures that we have put in place to allow an orderly and fair hearing to take place.
While it is the case that this incident took place in Oakland and not San Leandro, the consequences of allowing our Enforcement officials to act in this manner, anywhere, are severe and our policies need to guard against this behavior.
Repeated Code Violations
It is alleged that the Former Community Director has a history of Code Violations in her house and that she Committed Perjury on a Variance Application.
Upon examining the evidence we find the following:
These acts all occurred in Oakland, so once again it can be said that no San Leandro policies that have been breeched. However, it is my belief that there is a Certain Conduct that Public Officials should be expected to follow. Other institutions adopt disciplinary measures for Conduct Unbecoming a Public Official.
In this case, I believe it is self evident that the person who is the head of San Leandro’s Community Development Department should be expected to follow the same rules that she is in charge of enforcing. While we may leave the specific enforcement of these property violations to the City of Oakland where they occurred - the City of San Leandro cannot act as if violations by its Officers anywhere else have no consequences. These actions are hypocritical at best and undermine the trust our Citizens have in their government. We should consider adding to our employee policies Code of Conduct measures.
Interfering with Private Party Transactions
It is alleged that Cynthia Battenberg co-erced Canyon Design Build and its employees from taking a job for her neighbor. The allegation is that Cynthia Battenberg summoned Gary Porter, of Canyon Design Build into her office along with someone from San Leandro’s Building/Code Compliance department where they told him not to work for the neighbor.
Neither I nor Staff have investigated this claim. We have no evidence that this meeting took place.
There are several issues though that I would like to underscore. First, no San Leandro employee should feel like they are being put in a position by their supervisors and Managers to do something that they believe is wrong. While San Leandro does not yet have Employee whistle-blower protections in place as mandated by the State, every Employee should feel empowered to step forth and report violations (or perceptions of violations) - confidentially and without fear of retribution. Second, no San Leandro employee should use their office or the power of their office for their personal benefit. Our policies need to reinforce these basic fundamental Ethics provisions.
Conflict of Interest When Filling City positions
It is alleged that Cynthia Battenberg had a Conflict of Interest when she passed along information on a Planning Manager job opening to Aubrey Rose of the City of Oakland. Aubrey Rose was the City of Oakland Planner who approved her Variance and was actively involved in her project.
This is a difficult charge to assess as it spans across both San Leandro and Oakland. The facts indicate the following:
There is no direct evidence that Cynthia Battenberg told Aubrey Rose that a Planning Manager job would be offered to him in return for securing her Variance application.
There is no evidence that Aubrey Rose applied for the job or sought any other concessions from Cynthia Battenberg.
If we had such evidence one might rule differently.
We also don’t have in our Code the following from the City of Oakland:
1. 2.25.020 - Purpose.
A. This Government Ethics Act is based on the premises that 1) the integrity of City government depends upon Public Servants who are entrusted by the public to use City time, property and resources efficiently and in a legal and ethically responsible manner, and 2) all individuals and groups who come into contact with our City should have a fair and equal opportunity to participate in government.
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
I believe this case raises concerns relating to the appearance of a conflict of interest, both for the City of San Leandro and the City of Oakland. I am not in a position to decide if any City of Oakland Codes have been violated, however it appears that Mr. Rose treated Ms. Battenberg differently than what their Code or what standard practice would have dictated. The City of Oakland has more stringent rules in force than our City and if they decide to pursue the matter I will instruct our Staff to be forthcoming with any evidence that we have at our disposal.
Once again while no City of San Leandro policies have been violated, there needs to be a closer examination of Conflict of Interest rules and whether or not the City of San Leandro wants to strengthen them and provide more training / support to its Employees when confronted with those situations. City Managers have a duty to hire Staff and we want to make sure that those hiring decisions are made with the best interests of the City in mind and not for any personal motives. When conflicts of interest situations arise, such as this one, City employees, need a clear set of guidelines and processes to ensure they aren’t (un)intentionally exposing themselves or the City to Conflict of Interest violations or even the appearance of Violations.
Retaliation for Filing Ethics Charges
It is alleged that subsequent to the Filing of the Ethics charges in March 2017, Ms. Battenberg retaliated against the Complainant.
There are two components to this retaliation claim. The first is that Ms. Battenberg had her Attorney threaten legal action against the complainant. Her Attorney stated that the Ethics complaint was an attempt to defame Ms. Battenberg.
The ability of citizens to be able to file Ethics violations against members of City government is unequivocally not Defamation. The neighbor did so privately to City Clerk Ms. Tamika Greenwood and in a manner consistent with our policies. Leaving aside the First Amendment Constitutional rights of citizens to speak out against government, we need to ensure that in San Leandro citizens are encouraged and protected from retaliation. There is also the related matter of how Citizens can make Ethics violations and whether or not those reports are made public. In Ms. Battenberg’s Attorney’s letter she references physical evidence that was turned over to the City of San Leandro by the Complainant. There is a question of whether or not that evidence can be turned over to Ms. Battenberg for her use in a lawsuit against the Complainants. At present our process involves turning over all evidence to the Employee to allow them to provide a defense against the charges made against them. This may not conform to best investigatory practices.
The second complaint regards the placing of a camera on the complainants property, as stated by the lawyer to alert Ms. Battenberg if any un-permitted activity was taking place. It may be a matter for the Mayor and Council to ponder the following example: if a Building Inspector places a camera to monitor activity where she suspects illegal activity is taking place - is this the type of surveillance that the Citizens will allow? or our Legal system? If the Building Inspector does so after a Citizen places an Ethics violation against the Inspector, is that retaliation, and in this case is the presumption of illegal activity valid?
Finally, the City of San Leandro management has not handled this matter well for any of its constituents.
First, our employees are not served when our internal processes for handling Ethics complaints is open to second guessing. Our present system places the entire burden of making proper decisions on the City Manager. When the City Manager makes decisions counter to City Values it casts doubt on this system. What should have been handled internally has become shared with Staff and with the world via the web and email. This perception of improper decision making also undermines the ability of our Employees to do their job as it destroys the trust of Citizens.
Second, Citizens play a role in helping ensure that our City government is operating ethically. When we fail to take action and fail to support them from retaliation, and we expose them to legal liability we are undermining any incentives citizens have to report bad behavior.
Needless to say, this case and the one under investigation by Karen Kramer, has caused the public to lose trust in City government.
CONCLUSION/RECOMMENDATIONS
Please let me know if you require additional information or have questions.
Respectfully yours,
Ethical Person
Hope For City Manager
San Leandro
FROM: Ethical Person, Hope For City Manager
RE: Formal Ethics Complaints against Cynthia Battenberg, Former Community Development Director and the City of San Leandro’s handling of this matter
DATE: Anytime
Over the past year a series of Ethics Charges have been brought forth against Cynthia Battenberg, Former Community Development Director and the response of San Leandro Management in its handling of the matter.
City Manager Chris Zapata wrote a formal Memo to the Mayor and Council on September 27, 2017. Subsequently, another formal Ethics Complaint was filed on October 26, 2017 by Citizens for a Fair East Bay against Cynthia Battenberg with additional charges which have yet not been met with a formal response.
It is my belief that a formal response is required both to satisfy Municipal Code Section 405 and also in the best of interests of City of San Leandro in moving forward and learning from this episode. As noted above Cynthia Battenberg is no longer an employee of San Leandro so the specific questions of discipline no longer arise however this memo will serve to provide a guideline for how City Management will deal with these charges going forward.
I will summarize the charges against the Former Community Director into the following categories:
- Committing Blackmail/Extortion
- Repeated Code Violations/Perjury
- Interfering with private party transactions
- Conflict of Interest when filling City positions
- Retaliation for Filing Ethics Charges
It is alleged that Ms. Battenberg came to a neighbor’s house and asked him to pay to remove a concrete retaining wall that Ms. Battenberg had improperly placed on his yard or else she would use her influence in the City of Oakland to report him.
There is clear evidence that subsequent to this alleged visit by Ms. Battenberg, that Ms. Battenberg secured an agreement from the neighbor that she would remove the wall in exchange for the neighbor’s agreement that he would not oppose her Variance application. In addition, Ms. Battenberg agreed to not report the Violations to the City of Oakland that she had found on her neighbor’s property.
The City of San Leandro does not condone this behavior. The City expects that any Enforcement officials - as head of Building and Code Compliance, the Community Development Director, oversees an Enforcement arm - should not personally gain from failing to report or enforce laws. It is a fundamental part of the job to enforce laws and report infractions. Looking the other way for personal favors does not reflect our Values and approaches criminal behavior.
Furthermore, the Variance process is an inherently democratic one. We expect citizens to be able to voice valid concerns relating to property issues and its effects on neighbors. We do not want neighbors finding code violations on each other and using that to secure their acceptance. This turns the Variance process into something other than its intended purpose. It undermines the entire set of procedures that we have put in place to allow an orderly and fair hearing to take place.
While it is the case that this incident took place in Oakland and not San Leandro, the consequences of allowing our Enforcement officials to act in this manner, anywhere, are severe and our policies need to guard against this behavior.
Repeated Code Violations
It is alleged that the Former Community Director has a history of Code Violations in her house and that she Committed Perjury on a Variance Application.
Upon examining the evidence we find the following:
- In 2005, Cynthia Battenberg placed a retaining wall on her neighbors yard without securing the necessary planning approvals, permits, or survey.
- In 2011, Cynthia Battenberg added an un-permitted shower to a Powder room as part of a permitted remodel project. The City of Oakland cited her for a Code Compliance violation on this count. We do not have any evidence that she has been using the un-conditioned space in a manner inconsistent with allowed use.
- In 2015, in a Variance application for an addition to add a bathroom to her house - she omitted that 2011 shower in her Powder room and stated she only had 1 Full bath. Cynthia Battenberg signed the Variance Application under Penalty of Perjury.
These acts all occurred in Oakland, so once again it can be said that no San Leandro policies that have been breeched. However, it is my belief that there is a Certain Conduct that Public Officials should be expected to follow. Other institutions adopt disciplinary measures for Conduct Unbecoming a Public Official.
In this case, I believe it is self evident that the person who is the head of San Leandro’s Community Development Department should be expected to follow the same rules that she is in charge of enforcing. While we may leave the specific enforcement of these property violations to the City of Oakland where they occurred - the City of San Leandro cannot act as if violations by its Officers anywhere else have no consequences. These actions are hypocritical at best and undermine the trust our Citizens have in their government. We should consider adding to our employee policies Code of Conduct measures.
Interfering with Private Party Transactions
It is alleged that Cynthia Battenberg co-erced Canyon Design Build and its employees from taking a job for her neighbor. The allegation is that Cynthia Battenberg summoned Gary Porter, of Canyon Design Build into her office along with someone from San Leandro’s Building/Code Compliance department where they told him not to work for the neighbor.
Neither I nor Staff have investigated this claim. We have no evidence that this meeting took place.
There are several issues though that I would like to underscore. First, no San Leandro employee should feel like they are being put in a position by their supervisors and Managers to do something that they believe is wrong. While San Leandro does not yet have Employee whistle-blower protections in place as mandated by the State, every Employee should feel empowered to step forth and report violations (or perceptions of violations) - confidentially and without fear of retribution. Second, no San Leandro employee should use their office or the power of their office for their personal benefit. Our policies need to reinforce these basic fundamental Ethics provisions.
Conflict of Interest When Filling City positions
It is alleged that Cynthia Battenberg had a Conflict of Interest when she passed along information on a Planning Manager job opening to Aubrey Rose of the City of Oakland. Aubrey Rose was the City of Oakland Planner who approved her Variance and was actively involved in her project.
This is a difficult charge to assess as it spans across both San Leandro and Oakland. The facts indicate the following:
- Aubrey Rose was presented with a letter from the neighbors where he was informed of the prior code violations relating to the retaining wall and improperly placed soil. In addition, other privacy concerns were mentioned in that letter. It is unusual for Cities to not require prior code violations to be fixed during the Variance process.
- Aubrey Rose secured the neighbors acceptance to the Variance on the Condition that Ms. Battenberg would remove the Retaining wall from the neighbors yard. This Condition never made it into the Variance Approval. The Variance approval contained No Conditions other than the Standard ones.
- It would appear that several City of Oakland Planning Codes were breached by this omission including the following:
- 17.108.150 - Retaining walls.
- The retaining wall is located behind buildings, other permanent structures, or existing grade in such a manner as to visually screen the wall from adjacent lots, and from the street, alley, or private way providing access to the subject lot. Whenever buildings or other permanent structures on the subject lot block most, but not all, visibility of the retaining wall, dense landscaping shall be installed and maintained to screen the remaining views of the wall from adjacent lots, and from the street, alley, or private way providing access to the subject lot.
- Retaining walls visible from the street or adjacent lots shall be surfaced with a decorative material, treatment or finish, such as stained or stuccoed concrete, decorative concrete block, wood, stone or masonry, or other decorative material, treatment or finish approved by the Director of City Planning. For purposes of this Section, "visible from the street or adjacent lots" refers to any portion of a wall that is not located behind buildings, other permanent structures, or existing grade in such a manner as to visually screen the wall from adjacent lots, and from the street, alley, or private way providing access to the subject lot
- 17.108.150 - Retaining walls.
- On a public records inquiry - there is a series of emails between Cynthia Battenberg’s San Leandro email to Aubrey Rose where Cynthia tells Aubrey Rose how to negotiate for her behalf when dealing with neighbors. “I would also be willing to construct a fence in which the boards are placed vertical on my side and horizontal on his side - you might want to keep this in your pocket for negotiations.” It is not standard practice for Staff planners to negotiate for one party - it is imperative that they stay neutral.
- The Variance was approved in January 2016. The project was active throughout 2016 and in October 2016, Ms. Battenberg went back to Aubrey Rose and secured his approval to raise her fence height above the legally permitted amount.
- During the midst of this period, in May 2016, Cynthia passed along a Job Opening for the vacant Planning Manager position working directly underneath her.
- It is unclear if Aubrey Rose applied for this position - in an email - he expressed appreciation and interest. Neither I or Staff have investigated this question.
There is no direct evidence that Cynthia Battenberg told Aubrey Rose that a Planning Manager job would be offered to him in return for securing her Variance application.
There is no evidence that Aubrey Rose applied for the job or sought any other concessions from Cynthia Battenberg.
If we had such evidence one might rule differently.
We also don’t have in our Code the following from the City of Oakland:
1. 2.25.020 - Purpose.
A. This Government Ethics Act is based on the premises that 1) the integrity of City government depends upon Public Servants who are entrusted by the public to use City time, property and resources efficiently and in a legal and ethically responsible manner, and 2) all individuals and groups who come into contact with our City should have a fair and equal opportunity to participate in government.
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
I believe this case raises concerns relating to the appearance of a conflict of interest, both for the City of San Leandro and the City of Oakland. I am not in a position to decide if any City of Oakland Codes have been violated, however it appears that Mr. Rose treated Ms. Battenberg differently than what their Code or what standard practice would have dictated. The City of Oakland has more stringent rules in force than our City and if they decide to pursue the matter I will instruct our Staff to be forthcoming with any evidence that we have at our disposal.
Once again while no City of San Leandro policies have been violated, there needs to be a closer examination of Conflict of Interest rules and whether or not the City of San Leandro wants to strengthen them and provide more training / support to its Employees when confronted with those situations. City Managers have a duty to hire Staff and we want to make sure that those hiring decisions are made with the best interests of the City in mind and not for any personal motives. When conflicts of interest situations arise, such as this one, City employees, need a clear set of guidelines and processes to ensure they aren’t (un)intentionally exposing themselves or the City to Conflict of Interest violations or even the appearance of Violations.
Retaliation for Filing Ethics Charges
It is alleged that subsequent to the Filing of the Ethics charges in March 2017, Ms. Battenberg retaliated against the Complainant.
There are two components to this retaliation claim. The first is that Ms. Battenberg had her Attorney threaten legal action against the complainant. Her Attorney stated that the Ethics complaint was an attempt to defame Ms. Battenberg.
The ability of citizens to be able to file Ethics violations against members of City government is unequivocally not Defamation. The neighbor did so privately to City Clerk Ms. Tamika Greenwood and in a manner consistent with our policies. Leaving aside the First Amendment Constitutional rights of citizens to speak out against government, we need to ensure that in San Leandro citizens are encouraged and protected from retaliation. There is also the related matter of how Citizens can make Ethics violations and whether or not those reports are made public. In Ms. Battenberg’s Attorney’s letter she references physical evidence that was turned over to the City of San Leandro by the Complainant. There is a question of whether or not that evidence can be turned over to Ms. Battenberg for her use in a lawsuit against the Complainants. At present our process involves turning over all evidence to the Employee to allow them to provide a defense against the charges made against them. This may not conform to best investigatory practices.
The second complaint regards the placing of a camera on the complainants property, as stated by the lawyer to alert Ms. Battenberg if any un-permitted activity was taking place. It may be a matter for the Mayor and Council to ponder the following example: if a Building Inspector places a camera to monitor activity where she suspects illegal activity is taking place - is this the type of surveillance that the Citizens will allow? or our Legal system? If the Building Inspector does so after a Citizen places an Ethics violation against the Inspector, is that retaliation, and in this case is the presumption of illegal activity valid?
Finally, the City of San Leandro management has not handled this matter well for any of its constituents.
First, our employees are not served when our internal processes for handling Ethics complaints is open to second guessing. Our present system places the entire burden of making proper decisions on the City Manager. When the City Manager makes decisions counter to City Values it casts doubt on this system. What should have been handled internally has become shared with Staff and with the world via the web and email. This perception of improper decision making also undermines the ability of our Employees to do their job as it destroys the trust of Citizens.
Second, Citizens play a role in helping ensure that our City government is operating ethically. When we fail to take action and fail to support them from retaliation, and we expose them to legal liability we are undermining any incentives citizens have to report bad behavior.
Needless to say, this case and the one under investigation by Karen Kramer, has caused the public to lose trust in City government.
CONCLUSION/RECOMMENDATIONS
- In the interest of public service and as requested by Citizens For a Fair East Bay, I have completed my review of this matter which is what I believe is required by me by Code.
- I believe this case calls for major improvements and updates to policies. The City of San Leandro should review and strengthen our ethics policy for all city employees and all Citizens. I do not believe that I or my Staff or the City Attorney are in a position to bring best practices forward for Council consideration. There is an inherent conflict of interest in Staff making these recommendations. I would advise the Mayor and Council to appoint an independent 3rd party to take a comprehensive look at Ethics and provide a set of Recommendations for Approval. I, along with my Staff, will cooperate fully and provide whatever assistance is required for this effort.
Please let me know if you require additional information or have questions.
Respectfully yours,
Ethical Person
Hope For City Manager
San Leandro