San Jose accused of violating state law and losing records in Google negotiations

Two groups suing San Jose over an alleged lack of transparency in negotiations with Google to sell publicly-owned land for a massive development in the city’s downtown say the city violated open meeting laws by discussing details of the project privately and failed to keep some recordings of those discussions as required by city law.

The groups are hosting a news conference tomorrow to offer an update on the pending lawsuit over access to public records and unveil the new information, which was researched by San José Spotlight’s review of public records and meeting transcripts. City officials for their part say they haven’t violated open meetings laws.

Working Partnerships USA and First Amendment Coalition have added information to their initial claim that San Jose hasn’t been transparent in its negotiations with the tech titan. They’ve piled on new information related to earlier allegations of Brown Act violations, alleging the city had “precommitted” to certain details of a mixed-use development and noting officials failed to keep recordings of closed-door  discussions, though its own rules mandate the recordings be saved. The groups have not changed the lawsuit from focusing on public records, but says the new information may bolster their arguments.

“It’s concerning that it was behind closed doors rather than an open session where the public and the people can say their piece and to be able to hear what their elected officials are debating and considering to ensure that the public is getting the best deal,” said Jeffrey Buchanan, director of public policy at Working Partnerships USA.

The city disputes most of the new allegations, except for the one regarding the missing recordings.

But San Jose City Attorney Rick Doyle says the missing files are the result of a “human error,” not an attempt to keep information out of the public eye. Doyle could not say how many meeting recordings were lost, but characterized the number as “a lot.”

“The long and short of it is: it was my fault,” Doyle said. “Being a low-tech guy, I’m used to cassette recorders and this machine is pretty sophisticated … to such a degree that when we would finish recording, I would pull out the plug and that caused it to be erased because it wouldn’t download.”

Since discovering the issue, the city recovered some of the recordings and changed its practice so future recordings will not be lost, he said.

Working Partnerships USA and the First Amendment Coalition, two Bay Area nonprofits, sued the city last November over an alleged lack of transparency in the negotiation process with Google after reports that multiple city officials had signed nondisclosure agreements with the Mountain View-based tech titan.

A public records request from San José Spotlight revealed nearly 20 city officials signed nondisclosure agreements.

Google and San Jose officials announced two years ago the tech company was planning a sprawling 6 million- to 8 million-square-foot mixed-use office campus around Diridon Station on the west side of the city’s downtown. To move forward however, Google needed to purchase publicly-owned land in the area.

That spurred a robust debate among residents about the benefits and consequences of welcoming a massive corporate campus into the city’s center and how to glean community benefits from such a project as city officials worked to hammer out a deal, primarily in private meetings called closed sessions. City councilmembers voted in December last year to sell the land Google wanted.

Private promises made to Google?

The new allegations in the lawsuit include concerns around potential credits to Google to offset community benefits and an early commitment to upzone the land the tech company would buy. Those claims come following months of requests to the city by the nonprofits to get more documents about the negotiations, including the transcripts from the closed session meetings.

City officials are adamant that Google did not receive credits toward its community benefits and any discussion on upzoning was done in tandem with a public process.

“This is probably the most open and transparent process of any major deal I’ve seen,” Doyle said. “I’ve seen deals under (past mayors) Gonzales and Reed, and there are so many projects that came forward and nothing has gotten the spotlight or the attention that this one has.”

But both Working Partnerships USA and First Amendment Coalition say they still don’t have all the documents they’ve requested, despite the California Public Records Act mandating their release. The pair are asking a judge to order the city to hand over the remaining records.

“There’s a lot going on here that the public is not aware of, but is legally entitled to be aware of, so that’s the focus of the lawsuit,” said David Snyder, executive director for the First Amendment Coalition. “It’s to make sure that the public is able to see the details of what the city and Google have talked about and what the impact of those discussions would be.”

The documents the two nonprofits have reviewed so far, they claim, show multiple instances in which city officials skirted the law.

For instance, the pair say city officials discussed a broader range of topics during the closed sessions than allowed under the Brown Act, which states that cities can privately discuss only “the price and terms of payment” of a land sale in closed session.

But Doyle said the discussions did not veer off topic far enough to constitute a Brown Act violation.

“Admittedly, there is always some background,” he said. “There’s always some context, but the decisions were limited to price and terms of payment.”

In the few transcripts reviewed by San José Spotlight, the documents are not dated and the speakers are not labeled with their names, only by their apparent gender. Though the sessions are not public, San Jose passed a law in 2014 that would make redacted copies of transcripts of closed session discussions related to land sales accessible if someone accused the city of a potential Brown Act violation.

While much of the conversations viewed by San José Spotlight focused on the price of the land sales, at times the conversation veered away from dollars and cents.

Lawmakers discuss more than price behind closed doors

In one meeting, a city official asked whether San Jose would have any assurances from Google that it would move ahead with a project if the city sold its land to the tech giant. From there, those in the meeting discussed how the land sale “was the trigger” for the company to invest more money in developing the project, how Google already had architects working, what to say to residents who ask about the potential development and the delicate balance of ironing out a memorandum of understanding about the potential project “without triggering CEQA,” the state law that dictates environmental requirements in development projects.

When offered that specific example, Snyder viewed the discussion as a Brown Act violation.

But Doyle disagreed, saying, “the council wants to make sure that if they are going to go ahead and sell public property that Google is going to move forward with a project … so all that, again, is background.”

Notably, Snyder said the lawsuit doesn’t ask for Brown Act violation remedies, despite the seriousness of the alleged violations.

“The reason we didn’t bring Brown Act claims is … in order to do so, there’s a very tight timeframe that you have to do so … and it just didn’t work out for technical reasons,” he said. “But we discuss those in the filings we’ve made in this case because I think they’re an important backdrop to understanding how significantly the city has disregarded obligations under the Public Records Act.”

Whether a judge agrees remains to be seen. Santa Clara County Superior Court Judge Paul Bernal was slated to hear the case on Monday, but Buchanan said the meeting was postponed after Working Partnerships USA and First Amendment Coalition discovered the judge assigned was a friend of Mayor Sam Liccardo. The groups asked for a new judge to hear the case, a request that was granted.

The hearing will now be held at 10 a.m. Thursday in Santa Clara County Superior Court at 191 North First St. in San Jose and will be heard by Judge Patricia Lucas.

Contact Janice Bitters at janice@sanjosespotlight.com or follow @JaniceBitters on Twitter.

Editor’s Note: The executive director of Working Partnerships USA, Derecka Mehrens, serves on San Jose Spotlight’s Board of Directors.

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