Just as with the 2022 civil grand jury report lambasting the Santa Clara City Council majority, the most recent report’s timing also reeks of politicking.
The report, titled “Irreconcilable Differences,” goes after the Council majority for a parade of misconduct. Criticisms include behavior up and down the spectrum, all of which are unsavory.
Examples in the report range from more serious transgressions such as Council Member Kevin Park’s mocking of Kirk Vartan — a so-called “special advisor to the mayor” — ad hominem attacks and tantrums to smaller missteps such as eye-rolling, smirking or laughing at colleagues.
As the report notes, “… Councilmembers have used the dais for political grandstanding, long off-topic monologues, and personal insults, such as accusations of lying. Councilmembers violate rules of order at almost every Council meeting.”
However, while the grand jury writes about Council toxicity in general terms, the only examples it calls out are those from the Council majority. It seemingly ignores, or is ignorant of, similar behavior from minority members Mayor Lisa Gillmor and Council Member Kathy Watanabe.
This characterization acts as if Council mudslinging, which is rampant among both the majority and the minority, is one-sided or happens in a vacuum.
Similarly, the grand jury makes much ado about who contributed money to the political campaigns of the Council majority. There is no mention that the minority had similar financial juggernauts supporting them.
While the report is accurate, its one-sided focus paints the picture that Gillmor and Watanabe do nothing to contribute to the Council dynamic. The last report was released close to the mayoral election. Similarly, this one comes a little more than a month before Anthony Becker’s trial for, oddly enough, leaking that report.
Whether the report will taint the jury pool for that trial is still unknown. Both the content of the report and its timing cast suspicion on the grand jury’s motivations. Both give the impression that civil grand juries may be evolving into political hit squads.
A Civil Grand Jury’s Purpose
Civil grand juries are an anomaly these days; only seven states have them, according to “California’s Civil Grand Juries” most recent edition. While criminal grand juries exist in every state, California is the last state to maintain an ongoing civil function.
That civil function is supposed to act as a government watchdog.
“The watchdog function is recognized as vital to informing the public about local government operations,” according to the 2022 edition of “California’s Civil Grand Juries,” a manual released by the California Grand Jury Association.
Because of this function, the law gives civil grand juries a great deal of independence and confidentiality. The idea is that juries need to be siloed to best perform the necessary duties to root out government corruption or incompetence. Interference or undue influence from outsiders confounds this goal.
Still, while grand juries have no inherent powers — i.e., they are only empowered by the law — the edges of where a grand jury’s authority lies are fuzzy. According to the California penal code, jurors must recuse themselves if they have been employed by the agency they are investigating within three years prior to the investigation.
Attempts to clarify with the court the recusal process and to understand whether there are independent measures for establishing personal bias went unanswered.
“Some of the laws are vague and need interpretation from legal advisors,” Marsha Caranci, Civil Grand Jury Association director and training committee chair, wrote in an email to The Weekly.
According to the code, a civil grand jury sets its own rules.
When asked if she could elaborate on what grand juries “setting their own rules” means, Caranci wrote that she was “not in a position to interpret the law.”
Many, including the courts and the Civil Grand Jury Association, characterize grand juries as an “arm of the court.” Despite this moniker, their independence and ability to set their priorities and rules leave them in a nebulous zone.
A Fuzzy Dog
One peculiarity is, during inquiries, people the grand jury interviews are barred from having a lawyer present. However, according to “California’s Civil Grand Juries,” those interviewed can leave the room to consult a lawyer.
Further, while those interviewed are not typically put under oath, the law empowers the foreperson to do so. Just as with trials or other court proceedings, violation of the oath is perjury. While a grand jury cannot force a person to submit to an interview, a judge, the DA or his investigator may subpoena the person on the grand jury’s behalf.
These two circumstances raise questions about the civil grand jury’s scope of power. If the grand jury is an arm of the court and can, in a roundabout way, compel witnesses to testify, then it stands to reason those interviewed should also have Fifth and Sixth Amendment rights.
Although the grand jury’s purpose is to ferret out corruption, it cannot prosecute crimes. Because of this, grand juries often work closely with the district attorney’s office. The grand jury can initiate what is called an “accusal proceeding” against people it investigates. Such a proceeding signifies to the DA that the jury believes the person investigated should be prosecuted.
Sean Webby, a spokesman for the DA, wrote in an email that the civil grand jury did not consult the DA’s office during its investigation for “Irreconcilable Differences.” When asked whether any member of the grand jury had initiated an accusal proceeding against anyone named in the report, Webby wrote to “ask the grand jury.”
Identities of grand jury members are kept secret, with the exception of its foreperson, who signs the report. The foreperson for “Irreconcilable Differences” was Karen Enzensperger. Enzensperger also served as a member of the civil grand jury in 2022 when the “Unsportsmanlike Conduct” report was released. Because the identities of grand jury members are kept secret, it is unclear whether she was one of the jurors who worked on the report.
Further, Webby wrote that the DA doesn’t know how the report will impact Becker’s trial. When asked whether the DA believes that any behavior in the report warrants prosecution, Webby wrote, “if we did, then we would charge.”
By “we,” Webby means the attorneys in the DA’s office.
Eroding Public Trust
John Pelissero, director of government ethics at Markkula Center for Applied Ethics, called the Santa Clara City Council “a mess,” adding that it has a “besmirched reputation.”
Pelissero acknowledged that codes of conduct laying out ethical behavior are often vague, but added that they are “ethically aspirational.”
“These codes are often designed to reinforce ways of managing positive conflict so that the Council can act in the interests of people of the city,” he said. “The majority don’t seem to understand the virtue of having ethical discourse. It isn’t in the public interest to have a dysfunctional city council.”
The real threat, he said, is that such behavior erodes the public’s trust in its government.
As already noted, California’s civil grand jury is an outlier in many regards. Pelissero said the grand jury is carrying out an important ethical function by getting ordinary citizens’ perspectives on their government.
Examining the larger context of the behavior is important, he said. However, it makes sense that the grand jury would point to behavior from the majority since, in some ways, the minority is less empowered to fight against such behavior.
Although much of the behavior in the report wouldn’t necessarily be categorized as “unethical” on its face, Pelissero said, the broader implications of eroding public trust cast aspersions on such conduct. If Council shenanigans interfere with its ability to conduct business or have its constituents believe they are acting in their interest, it is toxic.
It shows that the Council “lacks an ethical awareness” and is unable to, as he put it, “modulate” its behavior. If Council members lack a basic respect for one another, at least they can show respect to voters and conduct themselves like dignified civil servants, he added.
“Even if it is just petty, it is embarrassing,” he said.
Weaponizing Language
Typically, a grand jury must confine its investigations to how, in this case, a government conducts its business.
“It is within the sole discretion of an entity’s governing board and top administrators to make major discretionary determinations that often are political in nature or involve personnel or budgetary matters,” according to “California’s Civil Grand Juries.” “The grand jury may not seek to substitute its judgment for that of the persons who were elected or appointed to make those decisions.”
Most of what the jurors writing “Irreconcilable Differences” focus on is exactly that: procedure. But there are, again, some gray areas, some fuzzy instances.
As an example, Park’s repeated, long-winded responses fall under the umbrella of procedure. Park regularly ignores the mayor’s attempts to keep his comments focused on the agenda item or her chastising him for repeatedly speaking when he has previously been allowed to speak.
In addition to setting the agenda, one of the mayor’s privileges is that she runs the meeting, meaning it is her prerogative to speak last, if she chooses. And she often does.
But Park’s behavior in this area isn’t unprovoked. Park has previously said Gillmor will frequently say something highly critical or incendiary, or as he put it: “lob a grenade,” during her closing remarks. He called it “an age-old propaganda technique.”
Additionally, many of the sections of the City code of ethics and the behavioral policy manual the grand jury cites are, at best, vague. Although the spirit of those guidelines are well-meaning, they contain much subjectivity. Phrases such as “treat people with respect” or do not “mock,” “belittle” or “be rude” to fellow Council members, woven throughout both documents, are open to interpretation.
Throughout the report, the grand jury characterizes behavior easily interpreted as simple criticism as something more. So, given that the grand jury is leaning on such soft terms, it is able to claim any criticism is “mocking,” “belittling” or being “rude.”
Another of the Council’s core values — often cited by its members — is encouraging “robust discussion.” Such discussions often involve disagreement and criticism of fellow Council members’ views.
If the grand jury is able to convince readers that such criticism is instead out of bounds by labeling it pejoratively, it would essentially be able to shut down robust discussion, thereby “substituting its judgment” for that of the Council.
