Recommendations.Our investigation causes us much concern about the way the Top Administrative Officers in San Leandro approach Ethics. We have talked to over 30 people, including Experts in Government Ethics, conducted a review of how other cities deal with Ethics and we offer the following Recommendations grouped under POLICY, PROCESS and PEOPLE.
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POLICY
- San Leandro's Municipal Code is Outdated and Out of Compliance with California State Law.
- As part of our review we consulted with the following resources, which we highly recommend the City of San Leandro does as well:
- Santa Clara's Markula School of Government Ethics. There are numerous articles that we found useful and while the Center has a policy of not addressing on-going cases we were alerted to State of CA laws that are applicable in this case
- The City of San Francisco's Municipal Code and how it deals with Ethics. Specifically how it has an Ethics Commission instead of merely relying on City Management to self police/judge itself.
- The City of Oakland's Municipal Code. Specifically the following regarding protections for all whistle-blowers and an explicit conflict of interest against seeking to influence decisions with government officials while discussing job offers with them.
- 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 when she told a private contractor to not take a private job. All San Leandro Employees should have this protection in place to allow them to speak freely as 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)
PROCESS |
Confidential Reporting of Violations
Clearly the Policy Changes we are recommending will necessitate new processes and new approaches. However, there is one process that we would like to highlight as an illustrative CASE Example and that is how the reporting of Violations against Staff members currently takes place.
In March of 2017, a violation was filed against Director Cynthia Battenberg with City Clerk Tamika Greenwood. The complainant was told that the reporting of the violation would be confidential, however Ms. Battenberg would get to see the complaint. The complainants turned over physical evidence to the City for its sole use. Specifically this was a photo taken by a guest of the complainants house which provided proof of the violation.
We understand that review was undertaken by Ms. Emily Hung who heads up Human Resources. We understand that Ms. Hung showed the evidence submitted by the complainants to Ms. Battenberg. She interviewed Ms. Battenberg and apparantly supplied the photo to Ms. Battenberg. At no point did Ms. Hung interview the complainants, nor follow up on the additional leads that the complainants explicitly told Ms. Greenwood needed to be investigated.
Subsequently, Ms. Battenberg, thru her Attorney threatened to sue the Complainants unless they ceased their complaints against her. She specifically cited the photo that was turned over to the City for their sole and exclusive use. Ms. Battenberg also tore down a fence that the neighbors were erecting and instead installed a NEST camera which has the capability of recording voice and audio. Her Attorney wrote that this was basically to catch her neighbors if they committed code violations - specifically if they tried to remove that un-permitted retaining wall on their side. She followed thru on that threat by calling the City of Oakland and having a Code Violation placed on the neighbors.
It seems to us that this is the epitome of a Big Brother George Orwellian scenario.
In March of 2017, a violation was filed against Director Cynthia Battenberg with City Clerk Tamika Greenwood. The complainant was told that the reporting of the violation would be confidential, however Ms. Battenberg would get to see the complaint. The complainants turned over physical evidence to the City for its sole use. Specifically this was a photo taken by a guest of the complainants house which provided proof of the violation.
We understand that review was undertaken by Ms. Emily Hung who heads up Human Resources. We understand that Ms. Hung showed the evidence submitted by the complainants to Ms. Battenberg. She interviewed Ms. Battenberg and apparantly supplied the photo to Ms. Battenberg. At no point did Ms. Hung interview the complainants, nor follow up on the additional leads that the complainants explicitly told Ms. Greenwood needed to be investigated.
Subsequently, Ms. Battenberg, thru her Attorney threatened to sue the Complainants unless they ceased their complaints against her. She specifically cited the photo that was turned over to the City for their sole and exclusive use. Ms. Battenberg also tore down a fence that the neighbors were erecting and instead installed a NEST camera which has the capability of recording voice and audio. Her Attorney wrote that this was basically to catch her neighbors if they committed code violations - specifically if they tried to remove that un-permitted retaining wall on their side. She followed thru on that threat by calling the City of Oakland and having a Code Violation placed on the neighbors.
It seems to us that this is the epitome of a Big Brother George Orwellian scenario.
Ms. Battenberg's actions represent clear retaliation after a legitimate, Confidential Ethics Concern was raised following City of San Leandro guidelines.
Furthermore, the neighbors asked Assistant City Manager, Mr. Kay whether or not the City had turned over the photo to Ms. Battenberg. Mr. Kay has not answered despite being asked twice. So we are asking Ms. Greenwood to explicitly tell us what is the City's policy regarding Confidential reporting of Staff violations by Citizens and what the City will do in the case of retaliation.
We also are asking once again if the City turned over Confidential information presented for its sole use in this case. We will post her answer on our website when we receive it.
We believe a conversation with Lieutentant Moliterrierri of the San Leandro Police Department who has been trained in conducting internal affairs investigations will be very constructive in helping City Management develop a Confidential reporting process that protects Whistleblowers. We believe that a truly Confidential process, as we believe required by CA state law, is necessary to maintain an Ethical organization.
Furthermore, the neighbors asked Assistant City Manager, Mr. Kay whether or not the City had turned over the photo to Ms. Battenberg. Mr. Kay has not answered despite being asked twice. So we are asking Ms. Greenwood to explicitly tell us what is the City's policy regarding Confidential reporting of Staff violations by Citizens and what the City will do in the case of retaliation.
We also are asking once again if the City turned over Confidential information presented for its sole use in this case. We will post her answer on our website when we receive it.
We believe a conversation with Lieutentant Moliterrierri of the San Leandro Police Department who has been trained in conducting internal affairs investigations will be very constructive in helping City Management develop a Confidential reporting process that protects Whistleblowers. We believe that a truly Confidential process, as we believe required by CA state law, is necessary to maintain an Ethical organization.
PEOPLE
One question that kept surfacing while we were conducting our investigation is WHY would Director Battenberg put herself, her Organization and her City is this position over what should have been a simple Variance application? As a result of her blackmailing her neighbors, the many code violations in her house have surfaced as well as her offering the job to the Planner who approved her Variance without Conditions and/or clearing prior violations. As we were talking to members of San Leandro's Staff the one answer we got was that Ms. Battenberg has no previous experience in either a Building or Planning department prior to her Promotion to this important position. While this doesn't necessarily exempt a candidate it does in this case explain her blatant disregard for Building Codes and Planning rules. We have asked Mr. Zapata to provide us with Ms. Battenberg's bio - we shall post it if we get it.
During the past two years or so, while we have been witnessing Director Battenberg's Building and Planning transgressions, we have sadly witnessed the Ghostship tragedy in neighboring Oakland. 36 souls perished in part because of a failure by the Building Department to enforce codes. Since this tragedy, Oakland hired a new Director of Planning, Mr. William Gilchrist. His qualifications include the following:
During the past two years or so, while we have been witnessing Director Battenberg's Building and Planning transgressions, we have sadly witnessed the Ghostship tragedy in neighboring Oakland. 36 souls perished in part because of a failure by the Building Department to enforce codes. Since this tragedy, Oakland hired a new Director of Planning, Mr. William Gilchrist. His qualifications include the following:
Education: Bachelors, MIT in Design, Masters in Architecture and Management
Work Experience: 35 Years of Planning Experience
Work Experience: 35 Years of Planning Experience
- - Senior Associate at Design firm AECOM
- - Planning Director, Birmingham, AL
- - Director Place Based Planning, New Orleans
During the course of our investigation, we saw the resumes of MANY qualified applicants for the Planning Manager job that was posted and filled last year. Especially considering the salary/benefits ($250K/year) and other Bay Area attractions, we believe this job req. can be met by a more qualified candidate in short order.
We are unequivocally calling for a termination of Director Battenberg employment from her position as head of Building and Planning.
We also have heard suggestions from other people that we talked to that involve other disciplinary actions in conjunction with or instead of our recommendation. None of the people we spoke to agree with Mr. Zapata that Ms. Battenberg's actions merit NO ACTION as he is currently advocating. In fact, when we talked to City of San Leandro Staff they told us that they believed that if a lower level member of Staff had committed these violations there would have been disciplinary actions taken.
Here are a list of disciplinary / punitive items that others have suggested:
1. That the City of Oakland revoke the Variance that they issued in January 2016 which enabled Ms. Battenberg to build out a Bathroom Addition to her house without any Conditions. We recognize that for a Variance to be revoked there would have to be exceptional circumstances. In this case these are:
- That Cynthia Battenberg committed perjury in her Application by omitting the shower and also the number of full bathrooms her house actually contained.
- That Cynthia colluded with the Oakland Planner with whom she was discussing an Employment Opportunity working directly underneath her as a Planning Manager.
Also, we will ask that they have Ms. Battenberg fix the continuing Code Violations in her property and the neighboring property due to her actions.
- She removes / corrects the shower she placed in her downstairs bathroom as well as anything else in the "un-conditioned / un-habitable space"
- She places a fence to preserve the neighbors privacy and removes the NEST camera which she is using to monitor their property.
- She compensates the neighbors so they can remediate the damage to their property as a result of her actions
- She ties her downspout into a drain pipe
- She removes the soil she improperly placed and lowers the fences to the legally permitted height
Simply put the Citizens of San Leandro deserve to have an Ethical, Qualified person heading up the Planning and Building Departments. We believe that it would be an act of willful negligence to let these transgressions go without any Action taken. By Mr. Zapata refusing to take in the new evidence we have submitted to City Clerk Greenwood - we believe this is an obstruction of justice - and a process that is sorely in need of reform.
The FIRST STEP IS TO PROPERLY INVESTIGATE OUR COMPLAINT SO BOTH MS. BATTENBERG'S TRANSGRESSIONS AND THE INSTITUTIONAL RESPONSE IS DOCUMENTED.