Cupertino Commission Stack ‘n Pack
By: Richard Mehlinger
Tags: Bay Area, Cupertino, Politics, Housing, Corruption

Ah, would that Cupertino’s problems were limited to one spectacularly tasteless Mayor. Unfortunately, they run far deeper than that. Last month, Cupertino’s City Council decided to stack the city’s commissions with Better Cupertino allies and donors. They even appointed a Planning Commissioner who was publicly on the record stating that building housing at Vallco would lead to legalized prostitution.

And things are worse than they look.

Let’s back up a moment. Last month, the City of Cupertino, with its new Better Cupertino majority, made its annual commission appointments. Cupertino Mayor Steven Scharf, taking a break from planning his new wall, posted his criteria for commission appointments in a Nextdoor thread, which I’ve included here. It’s worth the read — they’re good criteria! I especially liked #5:

Will the applicant bring some new perspective and new ideas to the commission? I don’t like commissions where everyone agrees about everything, or where the commission appears to be a clique.

This past week, Cupertino’s new City Council announced its commission appointments for 2019. So how do they hold up against the Mayor’s standards? Turns out, not so well.

Twelve out of sixteen seats, including every open seat on the Library, Tech, Parks & Rec, and — most importantly — Planning Commission all went to Better Cupertino supporters. Council even declined to reappoint the incumbent Planning Commission chair, moderate Geoffrey Paulsen.

So much for wanting new perspectives, and not wanting city commissions to look like cliques.

This looks all the worse in light of the Code of Ethics adopted by the city last year. Section 5 of the Code covered relations between council and commissions. Some relevant snippets:

(c) Respect that Commissions serve the community, not individual Councilmembers … Appointment and reappointment to a Commission should be based on criteria such as expertise, ability to work with staff and the public, and commitment to fulfilling official duties. A Commission appointment should not be used as a political “reward”. (d) A primary role of Commissions is to respect many points of view in the community and to provide the Council with advice based on a full spectrum of concerns and perspectives.

In other words, “don’t use commission appointments as a spoils system.”

But just days before the commission interviews, Council repealed the Code of Ethics, claiming that there had been inadequate consultation. Ironically, they attempted to hide their repeal in the consent calendar. Rod Sinks and — surprisingly — Better Cupertino endorsee Jon Willey dissented. Council then proceeded to do exactly what the code forbade, by packing the city commissions with their political allies. Again, Rod Sinks was the sole dissenter. Everyone else — including so-called independent Darcy Paul — went along.

Perhaps the Council’s most shocking appointment, though, was to put Catherine “Kitty” Moore on Planning commission. Moore has been single-mindedly opposed to housing development at Vallco — the largest opportunity site for new housing in the city. She is one of the plaintiffs in a lawsuit challenging the City of Cupertino’s approval of the Vallco redevelopment plan. This alone means that she would likely be required to recuse herself from any matters concerning Vallco that might come before Planning Commission.

As usual with Better Cupertino, it gets worse. Moore has spoken and written extensively against the proposed redevelopment of Vallco. She’s even argued that building apartments at Vallco would bring legalized prostitution and endanger female students at Cupertino High School.

Moore’s remarks also received support from Better Cupertino Library Commissioner Liana Crabtree.

Y I K E S

I’m not being flip when I say that her argument amounts to “they’re coming for our daughters”. Further on in that same thread, she writes:

Approving Environmental Impact Reviews are a key part of PlanComm’s responsibilities. That’s important.

Concerned members of the public brought these comments to the attention of Cupertino’s City Council before the commission interviews. Council chose to ignore them.

I can’t begin to describe how extraordinarily offensive this line of argument is. I’m single. I’m male. I’m a software engineer. That, apparently, would be enough for Kitty Moore to judge me to be a threat to the safety of the young women of Cupertino.

These statements are worse than offensive, however; they are disqualifying. Under the federal Fair Housing Act, it is illegal to discriminate in housing on the grounds of sex. Furthermore, the California Fair Employment and Housing Act (FEHA) goes further. Under the FEHA, it is illegal to discriminate on grounds of sex, gender, or marital status in matters of housing and employment. These public statements by Commissioner Moore are clearly prejudicial against single men — which is to say, they discriminate on the basis of sex, gender, and marital status under California housing law.

Clearly, employing a planning commissioner who has a history of making remarks prejudicial on the basis of protected class goes against the spirit of state and federal housing law. Now, one might argue that since these rules only apply to housing providers (e.g. landlords), it is somehow acceptable to have a Planning Commissioner who thinks it’s okay to argue that the Apple techies are coming for our daughters. And until last year, you would be technically correct.

However, last year the state passed AB 686, the Affirmatively Furthering Fair Housing Act. That Act is quite wide-ranging:

This bill would require a public agency, as defined, to administer its programs and activities relating to housing and community development in a manner to affirmatively further fair housing, and to not take any action that is materially inconsistent with this obligation, as provided.

And what’s a public agency? Glad you asked!

(2) “Public agency” means all of the following… (B) A city, including a charter city, county, including a charter county, city and county, and a redevelopment successor agency. [Emphasis mine]

Given Commissioner Moore’s public comments, any vote she takes to deny a housing development could plausibly be read as discriminatory, thus placing the City of Cupertino in violation of state law. Even her participation would be problematic. Remember how she said that the Environmental Impact Review should look at gender imbalance? EIR’s are government documents that carry the force of law, and reviewing and approving them is a key part of Planning Commission’s duties. Using an EIR to discriminate on the basis of protected categories would be a flagrant violation of AB 686, and of the equal protection and due process rights guaranteed by the 14th Amendment.

Governor Newsom has already demonstrated his willingness — if not eagerness — to sue cities for breaking state housing law. Does Cupertino, a city already heavily burdened with lawsuits, really want to be the next Huntington Beach?

Furthermore, government officials must recuse themselves from quasi-judicial decisions (which most typical Planning Commission decisions are) if they have made comments that appear to indicate that they have prejudged an issue before them. Otherwise, the decision can be appealed and voided on due process grounds. This absolutely applies to Planning Commission, which exercises actual authority over a host of land use and development decisions as delegated to it by the City Council.

At an absolute minimum, Kitty Moore is legally obligated to recuse herself from any Cupertino City Planning Commission discussions pertaining to any housing development that might conceivably house those single male “Apple tech workers”. Moore’s prejudicial statements probably also require her to recuse herself from any Apple office development, considering that’s where those dastardly single male Apple tech workers… work. Meanwhile, her participation in an anti-Vallco lawsuit likely disqualifies her from considering the single highest profile planning decision facing the city. After all, one clearly cannot rule objectively on a project one is suing to stop.

Perhaps at this point it’s worth asking what Commissioner Moore would not need to recuse herself from. How exactly can she hope to do her job as a planning commissioner when she would be required to recuse herself from virtually all of the important land use issues facing the city?

The obvious answer, of course, is that she can’t. If Commissioner Moore has a shred of integrity or ethical sense, she must resign immediately.

The real blame for this fiasco, however, rests not with Commissioner Moore but with the Councilmembers who decided to appoint such a badly compromised candidate in the first place.

Council knew that Moore had made these offensive, prejudicial comments. They knew that those comments could be used to challenge almost any decisions she might make as a planning commissioner. And they knew that she was party to a lawsuit trying to stop the Vallco redevelopment. Yet Mayor Scharf, Vice Mayor Chao, Councilmember Willey, and Councilmember Paul all decided that Kitty Moore belonged on Planning Commission, despite her history of inflammatory remarks and the fact that she is conflicted out of pretty much the whole job.

Appointing Kitty Moore to Planning Commission wasn’t just incompetent, though: it was reckless. Not only has Mayor Scharf’s wall joke enraged Cupertino’s neighbors, their council has appointed a planning commissioner who has publicly accused the city’s largest employer of being a den of vice and prostitution! Really, at this point it’s not clear who the new City Council hasn’t offended. And it hasn’t even been three months yet.

Even worse than the incompetence and the recklessness, though, is the brazen cronyism. The decision to repeal the ethics code and pack the commissions amounts to a return of the spoils system. It borders on outright political corruption. This is made all the worse by the goals of the embittered faction that has seized power in the city: to continue to maintain Cupertino as an exclusionary community, walled off from its neighbors, unwilling to contribute to solving the dire housing crisis it helped to create.

The Better Cupertino City Council needs to hear loud and clear from its constituents, its neighbors, and the state that this behavior is not acceptable and will not be tolerated. Enough is enough.