San Jose, nonprofits wait for ruling on Google negotiations lawsuit

San Jose officials and two groups suing the city over an alleged lack of transparency in its negotiations with Google for a massive new downtown campus presented their cases to a Santa Clara Superior Court judge on Thursday morning.

Now they’re all waiting to see what she’ll decide.

“The decision could come tomorrow or two weeks from now,” Jeffrey Buchanan, director of public policy for Working Partnerships USA, one of the groups suing the city.

Local nonprofit thinktank Working Partnerships USA and the First Amendment Coalition, a Bay Area nonprofit public interest organization, are suing San Jose because the pair allege the city hasn’t done a thorough search for records and emails by San Jose officials and hasn’t turned over all of the public documents required, per a state open records law, known as the California Public Records Act. They want the judge to order San Jose to do a more thorough search for documents and turn over more records related to the city’s negotiations with Google to sell publicly-owned land to the tech titan.

San Jose, however, has maintained that it has been responsive to the two nonprofits’ requests, and has handed over all of the documents that would be considered a public record.

The case was heard shortly after Working Partnerships and First Amendment Coalition announced they’d discovered San Jose officials had lost many recordings of closed session meetings between public officials that were supposed to be kept, per the city’s own laws — a detail reported by San José Spotlight ahead of the hearing. San Jose City Attorney Rick Doyle told this news organization that the missing recordings were due to “human error,” and that the city has since fixed its process for storing the recordings.

But the recordings that were kept, the two nonprofits allege, show the city hasn’t been transparent about its negotiations.

The pair say San Jose officials discussed offering Google an approximately $8 million credit toward a future community benefits package if the tech titan paid more than the company initially wanted to pay for the city’s Fire Training Station at 255 S. Montgomery St.

That conversation was spurred by the fact that nearby land parcels owned by the Successor Agency to the Redevelopment Agency — known as SARA — that were sold to Google around the same time had been valued at about $237.50 per square foot, while a different appraiser set the value of the Fire Training Station at roughly $180 per square foot.

The difference worked out to an approximately $8 million gap in the overall price of the property. Transcripts reviewed by San José Spotlight show city officials grappled with the optics of selling its own land for less than the SARA-owned land, while Google said it would want a credit of some sort for the difference above the appraised price.

Ultimately, the city sold the site for the higher dollar amount, at $237.50 per square foot, or $42.87 million, minus $1 million for potential clean up costs for contamination on the land and about $4.2 million in potential refunds if the city doesn’t hit specific deadlines related to vacating the property on time. But San Jose officials say that sale price came with no credit toward future community benefits.

“Although a potential credit for the price difference was discussed, council in closed session directed staff to drop that idea,” Kim Walesh, deputy city manager and director of economic development, told San José Spotlight.

Working Partnerships and First Amendment Coalition added that information to the suit in an effort to bolster their claims that the city is hiding information that residents should have a chance to chime in on.

Notably, the city is withholding some documents that are considered “privileged” for various reasons, including documents related to ongoing negotiations over several publicly-owned land parcels near the city’s urban core that Google has an option to buy, if it works out a deal with the San Jose Sharks, which use the lots for parking during hockey games.

San Jose Deputy City Attorney Katie Zoglin told Judge Patricia Lucas on Thursday that the city could not divulge the content of some communications because they relate to those ongoing negotiations and the city doesn’t want to “show its hand” to the private entity, Google, that way city officials can get the “best possible deal for the people of San Jose.”

But Karl Olson, the lawyer representing the First Amendment Coalition and Working Partnerships, told Judge Lucas that the negotiations are still early, and that any concern about showing its hand are speculative and don’t justify keeping information from the public.

“City officials are not the only smart people in San Jose,” Olson said, adding that residents need an opportunity to provide input on the negotiations. “There are a lot of other smart people who need to have access to these documents.”

The other issue is whether the city had searched thoroughly for documents. In particular, the two nonprofits are questioning whether San Jose Mayor Sam Liccardo and other city councilmembers had performed searches of their personal devices for documents and conversations related to the Google negotiations.

“As far as I know there is only two emails from Sam Liccardo to Google people that the city has identified and that just can’t be possible,” David Snyder, executive director for the First Amendment Coalition, said in an interview after the hearing. “We know from some of the documents that the city has produced … that Liccardo was at the center of these negotiations.”

Zoglin on Thursday said that the city has provided documents that show that Liccardo was asked to search his device.

But the two nonprofits are asking for Liccardo and other city councilmembers to sign affidavits or other declarations that promise they’d searched their personal and professional emails and devices to hand over all documents, as Snyder says the city did for other people involved in the negotiations.

“They did that for some city officials,” he said of such declarations. “But not for elected city officials who are really at the center of all this.”

Doyle did not immediately respond to a request for comment on the matter.

Contact Janice Bitters at [email protected] or follow @JaniceBitters on Twitter.

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