FOR IMMEDIATE RELEASE
LOS ALTOS CITY COUNCIL RELEASES DRAFT MEMO ON
FIRST & MAIN PROPERTY
To eliminate an unnecessary distraction for newly-elected Council
Los Altos, Calif. - November 30, 2012 - To eliminate an unnecessary distraction for the newly-elected Los Altos City Councilmembers, the Los Altos City Council yesterday directed Mayor Val Carpenter to release a confidential draft internal memorandum written by a former City of Los Altos staff member that is the subject of current litigation.
Prior to yesterday's direction, the Council had declined to release the confidential draft internal memorandum ("draft memo") due to concerns that doing so would reflect poorly on a former employee, and would also have a chilling effect on robust City staff debate on internal, pre-decisional, strategic, legal and administrative issues, which increases the quality of City executive decisions. However, with two of the five Councilmembers termed out on Tuesday, December 4, 2012, the Council decided to make the draft memo public, thus allowing the new Council to proceed unencumbered by the continuation of litigation, despite misgivings regarding the negative effect doing so may have on the candor and quality of City staff debate.
The draft memo was written by a junior staff member who is no longer employed by the City. The draft memo, which is now posted on the City's website at www.losaltosca.gov, discusses the sale of the City-owned property located at the corner of First and Main Streets, and presents the junior staff member's opinion that the City should entertain additional proposals. However, the junior staff member did not participate in Council closed sessions in which these issues were discussed with senior City staff members and the City Attorney, and the draft memo contains many factual omissions and inaccuracies.
The facts relevant to the subject of the draft memo and the reasons that the City did not previously disclose it are these:
1. Over a 10-year period the City unsuccessfully completed two expensive and time-consuming RFPs (Requests for Proposals) for the sale of the City's property at Main and First Streets, one in 1999 and one in 2008. The first RFP process resulted in extended on-again, off-again negotiations beginning in 2001 with Roxy Rapp and his various partner teams.
2. During that period there was an almost constant stream of "interested" developers, but none took the next step of presenting a credible offer. Senior City staff members continued to meet with several developers/investment teams outside of the formal RFP process. None of those meetings resulted in a proposal.
3. After the unsuccessful completion of the second RFP in 2008, Jeff Morris independently came forward with a credible offer. It involved a real estate commission to an agent, and was attractive given the specificity of the offer, the reasonableness of the purchase price in light of the real estate market at that time, and the capability of the developer to finance and complete this type of project.
4. The junior staff member subsequently wrote the draft memo, which was designated as a "confidential draft", to her immediate supervisor and the City Manager, in which she argued for a third RFP, suggesting that there might be another "interested" but unnamed developer, with the caveat that their project would involve the relocation of Safeway. As such, the finalization of the agreement with Morris was postponed for a week to allow the new, unnamed developer an opportunity to come forward. That developer failed to do so.
5. At the September 14, 2010 regular Council meeting during which approval of the Morris option agreement was discussed, the "interested" developer was apparently present but did not step forward to express any interest. Some of the public speakers on this item expressed support for initiating another RFP process, while others expressed appreciation that a proposal which could actually be completed had been submitted and urged the Council to move forward with the project. One of the closest residents to the subject property strongly supported the Morris project, saying "Thank God we now have a proposal in front of us." Another prominent community member stated "Now here's an opportunity. Let's not blow it again. Let's go with this."
6. The Council discussed initiating another RFP process for this property during two regular meetings held on February 23, 2010 and September 14, 2010, carefully considered all public input, made a conscious decision not to delay the proposed project by initiating a third RFP process, and voted to approve the option agreement with Morris.
7. Since that vote, a few members of the community have suggested that the sale was not legal and demanded a copy of the draft memo. In light of that, the City's primary concern was not the draft memo, but rather allegations that the sale was illegal. The City therefore promptly engaged the services of an outside law firm extremely experienced in representing various other cities and asked it for an unbiased opinion on this matter, and if the City followed best practices by not issuing another RFP. The total cost to obtain that opinion was $25,698. Once the opinion was received it was made public and is now posted on the City's website at www.losaltosca.gov. It found that the sale was legal and followed best practices.
8. In order to protect the City's internal processes, it has spent approximately $15,000 to date opposing the production of the draft memo. Statements have been made by individuals, and it has been reported in the press, that the City has spent over $30,000 in such opposing production. Those statements are false.
9. The City has encouraged its employees to advocate their opinions on numerous ideas, good or bad. Historically, any such opinions which were not acted upon have been protected from public disclosure on the grounds of deliberative process. Releasing all draft or deliberative process memos on ideas not pursued will have a chilling effect on City employees, and will not be in the public's best interest. Nevertheless, an exception is being made on this occasion, and the draft memo is posted on the City's website at www.losaltosca.gov. It is important to understand that the junior staff member who wrote the draft memo is not an attorney, did not participate in Council closed session discussions, and that her statements of facts and law are often incorrect.
The mission of our staff, council, commissions, committees and volunteers is to foster and maintain the City of Los Altos as a great place to live and to raise a family. Los Altos will celebrate its 60th anniversary of incorporation on December 1, 2012 - see www.LosAltosAt60.org.
Outside Legal Opinion