City Attorney Heather McLaughlin has asked Mayor Elizabeth Patterson to recuse herself and not participate in the city’s decision about the pending Valero Crude-By-Rail project, she said Tuesday.

“I was advised in two email exchanges with the city attorney over time and one time in person,” Patterson said.
The most recent conversation about the matter came last June, she said.

In response, Patterson said, “Free speech is the bedrock of open government. To inform the public about issues of vital concern or issues that should be of vital concern is what I promised.

“To act according to their city’s best interest is what I intend to do to the best of my ability. Interference with this duty and purpose is unacceptable.”

McLaughlin and City Manager Brad Kilger didn’t answer requests for comment by press time.
Patterson said she retained an attorney last year when McLaughlin began raising her concerns, including questions about Patterson’s “e-alert” emails.

Those emails cover a variety of topics, from gallery openings to participatory budgeting in the United States and other countries, to such programs as International Walk to School Day.

She also has sent e-alerts about crude-by-rail issues. In one recent e-alert email in which she shared Valero Benicia Refinery’s information on September as National Emergency preparedness Month, Patterson wrote, “I do not endorse any part of the proposed Valero Crude by Rail because it would be premature and inappropriate since we don’t have the final EIR (environmental impact report) to address a number of issues raised by the Planning Commission, community, other cities and agencies, and the State of California.”

She continued, “My goal is to keep as many people as possible informed about public policy issues about the crude by rail project and to provide links to resources for more information. Being informed is the basis for fact-based and critical thinking decision making.”

In addition to reminding recipients of public meetings on the matter, she also has sent e-alerts with news articles about governmental agencies’ comments on the project and other cities’ dealings with their refineries, including how Richmond has addressed its relationship with Chevron.

In her preface to a July 28 email about Richmond and the writings of one of its Councilmembers, Tom Butt, she wrote, “It is informative to see what other refinery towns and refineries do. There are many similarities among refinery communities which feel that they have air quality impacts that are not addressed; that there are ‘host community’ costs that should be recognized by the refinery through taxes and a community fund to be decided by the community; and on the other hand the refineries and workers advocate for keeping jobs and not demanding too many conditions for operating.”

She continued, “The second reason for the links is to read about a Councilmember’s thoughts and potential vote on a matter before a meeting. In other words, transparency, free speech and open minds are positive and should not be threatened or suppressed.

“Unfortunately for Richmond City Council, civil discourse is not working,” she wrote.

Praising the Benicia Planning Commission Chairperson Donald Dean, she wrote, “Benicia’s change from past tempestuous meetings (remember?) to the excellent civil conduct now was best exemplified at the recent Planning Commission public hearing on the Valero crude by rail draft EIR.”

The mayor said “it is my right” to share information of national, state and local significance with her email recipients.

This isn’t the first time the mayor and McLaughlin have had disagreements about open government procedures.

Last year, at Vice Mayor Tom Campbell’s request, McLaughlin examined whether open government rules were violated when Patterson walked in on a two-member Council subcommittee as it interviewed advisory panel candidates. Campbell suggested that having three members who vote on Council decisions in the same room — a majority present without public notice — could be considered a Brown Act violation because Patterson was asking the subcommittee to consider a resident for a different panel than the one to which the candidate had applied.

That resulted in lengthy discussions of alternative procedure methods that was more open to the public and allowed input from the subcommittee without violating the mayor’s right to make the appointments, which she said has been repeatedly affirmed by state law.

Patterson contrasted the city attorney’s recusal requests with a decision by Councilmember Mark Hughes to recuse himself recently from participating on the Council’s decision on pursuit of membership in Marin Clean Energy Community Choice Aggregation.

Although several legal opinions indicated that Hughes, who has retired from Pacific Gas and Electric Company, had no conflict of interest in participating in the procedures, Hughes announced that he would not remain to hear or vote on the matter.

“There’s a pretty big difference in material conflict,” Patterson said. Material conflicts of interest arise when a government official could gain financially or be hurt economically by a vote on a particular issue.
She said there’s a wealth of legal decisions regarding material conflict.

“That’s why we recuse ourselves,” she said. Councilmembers also excuse themselves when they have homes or businesses within a certain distance of sites that are subject to votes.

Patterson said court decisions repeatedly have acknowledged that elected officials become known for their positions on certain matters, and in fact that is why certain voters support or vote against them. Those elected, she said “are a known quantity.”

She said courts also have upheld the right of those officials to weigh in and vote on matters.

Her attorney, Diane Fishburn, has cited a 1975 California Supreme Court decision that two Fairfield City Councilmembers were able to participate in voting on a shopping center, even though they had stated publicly they didn’t support the project.

Patterson said she disagreed with the recommendation that she should recuse herself, saying it was “based on the idea that I don’t have an open mind.” She said “nobody knows, including me,” how she will vote before she has been told “all the facts and weigh the information.”

She said the requests involve matters of free speech, the right to assemble and share information and transparency, open government and due process. “Sharing information cannot be constrained,” she said. “Due process is California law,” she said, explaining it protect an applicant, who should have reasonable expectations of fair consideration of a project or matter.

She said other members of the Council also have joined the Benicia Chamber of Commerce and other organizations that have come out on one side or another of various city issues.

She said those affiliations shouldn’t prevent a Councilmember from voting on those issues. “That’s absurd,” she said, adding that other members of the panel can’t force her or others not to vote.

She said her actions violate neither the state open government law, called the Brown Act, or Benicia’s own open government regulations. Those would restrict the number of members of the Council or advisory board members with whom she could speak about a particular matter.

“It’s unfortunate it’s used as a straightjacket and a sledgehammer to discourage discourse,” she said. “I trust an informed public.”