■ Outside legal counsel: Elizabeth Patterson should take certain steps before voting on Valero Crude-by-Rail Project; mayor reiterates she will not recuse

Benicia City Council unanimously agreed Tuesday to waive attorney-client privilege and open the way for City Attorney Heather McLaughlin to release a legal opinion about whether Mayor Elizabeth Patterson is biased against Valero’s proposed Crude-by-Rail Project.

Independent counsel Mike Jenkins examined whether Patterson, particularly through her “E-Alert” emails, had reached the point she should recuse herself from further participation in the city’s consideration of Valero Benicia Refinery’s use permit request for the project.

“This is a close case,” Jenkins wrote in his opinion, which McLaughlin’s office received June 30 and released publicly Wednesday. “The evidence I have reviewed can be interpreted to suggest a probability of bias on the part of the Mayor.”

However, he cautioned that “no lawyer could tell you with certainty that these facts compel the mayor to recuse herself from the Valero decision, only a judge can do that.”

Patterson said in October that McLaughlin had asked her to recuse herself from participating in the city’s decision in the pending Valero project. The mayor disagreed with the attorney’s recommendation, saying, “Free speech is the bedrock of open government,” and that part of her duties as mayor was to inform residents about multiple matters.

Patterson said Tuesday that state law had recognized and codified conflicts of interest when it involved proximity of residences or financial matters, but said there was no codification when the issue was bias.

She compared her situation to that of a pastor who might become an elected official who had strong views about objectification of women, then was faced with voting on an application to open an adult-entertainment business.

“Am I biased? My duty is to hear everything and make a decision based on facts and what the law says I can and cannot do,” she said.

Jenkins, of the Jenkins & Hogin law partnership in Manhattan Beach, wrote that the safest course of action would be for Patterson to recuse herself.

“Having said that, should that advice not be followed, we suggest that the Mayor be advised to take the following steps to resolve any ambiguity about her role as a decisionmaker and her intent with respect to the community discourse.” Calling them mitigation steps, he listed them:

• Refrain from further public comment on the entire subject of crude by rail and the Valero project in particular;

• Make a public statement at the outset of the hearing disclaiming any prejudgement of the matter and committing to review the evidence with an open mind; and

• In that statement, explain that her communications to the community were intended to be informational and not reflective of a fixed view of the subject.

Jenkins wrote that after he examined the publications supplied to him by McLaughlin, “a court likely would find that Mayor Patterson’s oft-expressed skepticism about transportation of crude oil by rail evidences an unacceptable probability of actual bias. The evidence is sufficient to warrant her preclusion from participation in the decision.”

Before reaching his decision, he said he read several of Patterson’s “E-Alert” messages that are emailed to multiple recipients. He noted that at the bottom of each she has written that the materials, words, terms or event notices don’t indicate a bias for future decision making, and that her opinions also aren’t prejudicial in decision-making, which she said would be approached with “an open mind and impartiality.”

Jenkins said he read emails from July 6, 2013, a public forum notice; July 19, 2013, an opinion piece written by her former campaign manager, Roger Straw, who encouraged the city to write an environmental impact report (EIR) about the Valero project and acknowledged Valero’s economic contributions; Aug. 1, 2013, an announcement that the EIR would be prepared; Sept. 17, 2013, newspaper articles about the EIR; Sept. 24, 2013, a news story about Union Pacific Railroad work unrelated to Valero as well as a discussion of the Valero project; Nov. 11, 2013, a story about an explosive Alabama train derailment; Nov. 23, 2013, another Straw opinion piece rebutting suggestions that Patterson had demonstrated unacceptable bias about the project; and Feb. 24, 2014, a Valero news release.

He said he viewed a half-minute video clip from the San Francisco Chronicle website from Feb. 26, 2014, in which Patterson, speaking in front of the Valero refinery, said the city’s concern was public health, safety and welfare, that the EIR was being prepared, that the city would protect the community’s safety and that Valero is a major employer in the city and that it is important to the local economy. She also said the issue was “interesting,” Jenkins wrote.

He read her opinion piece published in the San Francisco Chronicle March 4, in which Patterson asked Gov. Jerry Brown to issue an executive order to assure that California is ready to deal with “the highly flammable and explosive Bakken crude oil from North Dakota coming by rail into California.” Jenkins said Patterson wrote that “crude-by-rail shipments in unsafe tank cars pose imminent danger” and urged the state Legislature to enhance safety and improve coordination with federal agencies.

He examined a March 10 E-Alert in which Patterson forward an article about speakers who opposed the Valero project; an Orange County Register editorial published March 19 that disagreed with Patterson’s Chronicle article; and a March 29 E-Alert about unpermitted crude oil transfers in Sacramento in which Patterson said “there is a lack of agreement on the threat, level of protection, appropriate regulations — or not — and ability to respond to large events.”

He read an April 28 E-Alert reminding recipients that comments on the draft EIR were due, and another dated May 27, in which Patterson defended forwarding questions from Straw to U.S. Rep. Mike Thompson and added an article on Thompson’s comments on crude deliveries, in which he said the Valero project “must be done right.”

Jenkins agreed that Patterson’s E-Alerts also cover other topics.

In examining previous court cases he said might be relevant, he acknowledged one used by Patterson’s lawyer, Diane Fishburn, to argue in favor of letting Patterson continue in the crude-by-rail decision process: a 1975 California Supreme Court decision about two Fairfield City Council members who were allowed to vote on a shopping center even though they had said publicly they didn’t support the project.

In that case, Jenkins wrote, the court ruled that a council member had a right and an obligation to discuss with constituents issues “of vital concern,” and to state individual views. But he explained that the court qualified its conclusion by saying the comments were made in the context of a political campaign, “where candidates should have the freedom to express their views about matters of importance to the community.”

In another case he cited, Nasha v. Los Angeles, the Court of Appeal decided against a planning commissioner who was president of a homeowners association (HOA), in whose newsletter he published an article about a project’s environmental impacts. The commissioner sided with those who upheld a denial of the project, but the Court of Appeal agreed with the applicant who argued against the vote.

“The court held that the fact that the commissioner had expressed such concerns as a member of the HOA ‘gave rise to an unacceptable probability of actual bias and was sufficient to preclude (him) from serving as a reasonably impartial, noninvolved reviewer’ when the matter was heard by the Los Angeles Planning Commission,” Jenkins wrote. “Note that he did not say he was against the project, only that as proposed it threatened a wildlife corridor.” Nor did it matter that the article had been unsigned when it was printed in the newsletter, Jenkins wrote.

He cited other cases in which courts had a greater body of evidence that an official was prejudiced or that an entire panel couldn’t be an independent tribunal.

“In sum, common law conflict of interest will exist where there is concrete evidence that a decisionmaker has by words, actions or otherwise demonstrated that he or she has demonstrated an unacceptable probability of bias prior to conduct of the public hearing on a project,” he wrote.

Because the entire Council didn’t ask for McLaughlin’s guidance, she was prevented under State Bar rules from advising individual Council members. She is allowed to provide guidance to the entire Council or as that panel directs.

McLaughlin sought guidance recently from the state Fair Political Practices Commission when a Benicia resident suggested Councilmember Mark Hughes’s former employment by and the retirement benefits he receives from Pacific Gas & Electric should prevent him from voting whether Benicia should join Marin Clean Energy, a community choice aggregate power agency.

Though the commission determined Hughes had no conflict, he chose to recuse himself from any discussion or vote on the matter.

But the commission only examines cases involving potential financial conflicts, and questions about whether Patterson was biased had no fiscal basis.

Two Councilmembers, Hughes and Christina Strawbridge, said Tuesday they had asked McLaughlin whether Patterson’s comments might open the city to potential litigation about the Valero project. “I brought it up,” Hughes said, explaining that another resident had asked him to look into the matter.

He took exception to comments from Andres Soto, who opposes the Valero project, who suggested there might be bias in Jenkins’s opinion by saying that the person “who pays the piper chooses the song.”

Hughes said that comment made it sound “like the city attorney has it in for the mayor. She sought an independent opinion.”

He continued, “For anyone to think there is a witch hunt between me and the mayor is wrong, and I think the mayor knows that. It was an attempt to get clarification, not an attempt to get the mayor to recuse.”

Strawbridge recalled a Patterson E-Alert about billboards when vendors were in the midst of pursuing a change of those billboards to light-emitting diode signs. “What we were taught was to keep opinions to ourselves,” she said.

She said campaigns are different — candidates are expected to explain their stands on multiple issues. But once seated, the person has other responsibilities.

After seeing certain Patterson emails and her writings in the Chronicle, Strawbridge said she sought advice from McLaughlin.

“My feeling wasn’t that the mayor should recuse herself, but is the city in legal harm,” she said.

“Now you know,” Councilmember Alan Schwartzman said. “Everybody can agree it isn’t a witch hunt, but genuine concern we’re in a legally defensible position.”

Vice Mayor Tom Campbell, who said he and Patterson have been voting on city issues since the late 1990s and noted that their votes often coincided, was upset at characterizations he had heard about the city attorney.

“I’m appalled and disgusted,” he said. “The city attorney did her job the way she should have done to ensure the integrity of the decision-making process. The flak is totally unacceptable.” He told the audience, “I’m disgusted how people are treating the city attorney. She should be rewarded.”

“The city attorney asserts I have a conflict of interest,” Patterson said. She said her conflict is “the health, safety and welfare” of Benicians. “On that, I will not yield.”

Should the Council have to weigh in on the Valero project — the Planning Commission will vote on the use permit, though its decision could be appealed to the Council — the mayor said she would study the issues “and make a decision in the best interest of the city. There is no reason to recuse myself.”

Public speakers joined the Council in urging the public release of Jenkins’s opinion.

Marilyn Bardet, who also has spoken against the Valero project, said she found disturbing any suggestions that Patterson should censor herself.

“If we aren’t raising questions, we’re in trouble,” she said.

She said Patterson “has taken the advantage to send email blurbs. … She sends more information than anyone.”

She was among those who asked Council members who requested the inquiry to identify themselves.

One reisdent, Michael Escobosa, called it “a real hot issue,” and while he agreed the Council should allow Jenkins’s opinion to be released, he suggested the Valero project itself should be decided at a state or federal level.

Soto told the Council that each Sunday, people can watch officials on television speaking about issues before voters, and said they’re entitled to comment on those topics.

He, too, asked Council members who suggested Patterson is biased to identify themselves, and said he’d be interested in knowing if any members of the panel had investment portfolios that included Valero stock.

Straw read a letter to the Council from another resident, Bob Berman, who also called the situation “disturbing.” And he pointed out Patterson’s emails cover multiple subjects. “To the best of my knowledge, I am not aware of any bias, either in favor of or in opposition to, the proposed Valero project. The email alerts provide important information to Benicia residents,” Berman wrote.

Berman said he, too, favored the waiver, but disagreed that the outside counsel represented the City Council.

“In my opinion, the real client here is not the City Council but rather the citizens of Benicia.”