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.”
It does appear the mayor is upset. She knows the rules. This is not a partisan elected mayor/council. She should recuse herself and move on. Show some respect for the city residents and your other council members. If the mayor wishes to continue the fight it will hurt in her next try for an elected position. It appears she will maybe want to run for the Supervisor for this area. She has just hurt herself very badly and it will be political ammunition that could be used against her. It also appears her time in city politics will be over in 2016. Mayor Patterson do yourself and the city residents a favor and move on. Show some real class as a local politicians. Trying to bulkly your way thru this will do you no good just ghurt your already damaged repuutation. Mayor Patterson it is time for healing. Move on.
Sounds like Benicia needs a new city attorney,
I agree, Tom.
It is quite mistaken to conflate or identify Mayor Patterson’s situation with that of Council Member Hughes. Hughes’ self-recusal is no necessary or proper precedent guiding the Mayor’s choice. The matter of perception is a red herring, for Patterson was elected twice. There is no clear, local majority evident in support of Valero’s Crude-by-Rail plan, so one may wonder at City Attorney McHugh’s purpose and interest in urging the Mayor to recuse herself. It is worth learning whether the real basis for Ms. McHugh’s recommendation amounts to more than needless officiousness. Civic duty can be viewed through various lenses and shiftings of focus.
Under the Attorney’s interpretation of ethical conduct, the required independence and impartiality is used in partiality to strip away the Mayor’s independence of judgment and freedom of personal opinion. Officials in public service do not surrender individuality and political valence, but only the right to pecuniary gain, beyond the emollients of office, from official decisions or activity while in office, or resulting from them after leaving office. It may be well for the City Attorney to think on how these ethical standards may apply to herself.
If she has cogent or concrete charges to make against the Mayor’s performance, she should perhaps waive her own attorney/client privilege and spell them out for the public, for what is presented in the article above, by Donna Beth Weilenman is all ambiguously abstract and effectively vague.
My personal opinion is, Mayor Patterson serves with all, and possibly more than, necessary concern for public and private ethics both her own and others’.
It seems to me, McHugh is trying to create a suggestion of interest-conflict in, or doubt concerning, Patterson’s performance. I’ll sooner doubt McHugh.
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P.S. My post had been the first and only post on this thread. Then it vanishes and Mr. Livesay is allowed another attack on the Mayor.
NOTE: I will be discussing this with Marc on his return.
“There is no clear, local majority evident in support of Valero’s Crude-by-Rail plan, so one may wonder at City Attorney McHugh’s purpose and interest in urging the Mayor to recuse herself”. Umm, maybe her stance is not predicated on the presence of anything other than her interpretation of the law. Would you feel differently if there was a local majority in favor of Valero???
John the City Attorney works for the City Counci/mayior.. The City Attornwy and the Ci\ty Manager are the only two folks that the counil/mayor can fire. So if the mayor does not agree with the City Attorney decision backed appently by the council. The council will have to come out and say they backed the City Attorney and her decision. Now what? So it does appear someomne wqill have ti come forwARD and tell thwe residents how this all happened. Will it be the AYOR
More to come I am watching the 49er game.
Maybe, John. Maybe, maybe, John. Do you know more than maybe?
Front page of SF Chron today..
Just more support that this is not merely an issue exclusive to the Benicia bubble.