The Mystery of Closed Sessions

City Hall Diary

Many people ask what my biggest surprise has been since becoming a council member. I have shared that my biggest surprise has been closed session meetings. “Closed session” meetings are private meetings which include the mayor, city attorney and city council. The city manager and two other attorneys who record the minutes are also present. Sometimes, depending on the subject material, specific city staff will also join the meeting, but the public is not allowed to be present.

Closed session meetings occur every Tuesday morning and are held in the “green room” which is located behind the council dais. The green room is large with a TV monitor on the wall and a very large table and chairs in the center. Mayor Reed sits at one end of the table and Rick Doyle, the city attorney, on the other. 

The mayor leads the meeting agenda and will recognize council members to speak. Usually the city attorney starts the meeting with information on pending and ongoing litigation and threat of litigation. I have found people love to sue the city. It could be anything. Many times the council settles out of court. Settling a case out of court could be less then the cost of going to trial and possibly losing and having to pay out more. $3.5 million of the city budget is allocated each year to legal settlements and that amount is really a best guess since lawsuits do not follow statistical trends.

In order to prepare for closed sessions, each councilmember receives advance information in sealed envelopes with the word “confidential” on the front.

The city attorney will talk about a case and then the appropriate city staff will add more detail or explain technical issues. After that particular case is done then the next group of city staff will join us to start on another issue.

Some of the confidential matters are personnel related. The one that attracted the most attention lately was the issue of our former city auditor. We received reams of paper that we needed to read through, and as with all closed session material, it cannot be shared with staff. It adds another level of stress knowing that you are reading information that impacts a person’s career.

Labor negotiations are also covered in closed sessions. It is similar to talking about litigation; however, instead of talking about winning or losing, it is more of a discussion about balancing resources and priorities.

All comments that are made in closed session are to be confidential and not to be revealed to anyone, including staff and family. We are allowed to talk about closed session items in generalities, but not specific cases or quotes from other council members or staff. 

Closed session meetings are serious business.

31 Comments

  1. P.O.
    Thank you very much for explaining this process of our local government.  I understand that there are subjects that the general public has no need to know about.  We must trust our council members to keep our best interests in mind as they discuss them with the mayor.

  2. Is there a dominant cause/theme for the $3.5 million in annual settlements?  (i.e. over-regulation, decision delays, personnel)  Or do the lawsuits come from all over the place?

    What is the actual number paid out in legal settlements/trial costs vs. the $3.5 million you budget for?

  3. Gee, is the carpeting, paint or upholstery in the green room really green?  Or is it a “green room” as in “where performers wait before their time on stage”?  Are there placecards?  Does your chair face toward the TV or away from it?  Is there cable?  Can you watch streaming stock market reports during the meetings?  What color is used to stamp “confidential” on the envelopes?  Can you adjust the height of individual chairs—and does anyone go through the room before the meeting and put all the chairs on “low” just for laughs?

    “The city attorney will talk about a case and then the appropriate city staff will add more detail or explain technical issues. After that particular case is done then the next group of city staff will join us to start on another issue.”

    For all the pseudo detail here, it sounds like there are a number of steps missing from this narrative—the elected Council members actually discussing the matter, raising questions with staff and making a decision!

    “It adds another level of stress knowing that you are reading information that impacts a person’s career.”

    What did you think you were signing on for as a Council member?  Short of congratulatory proclamations, EVERY decision the Council makes impacts someone’s life or career.

    Curious raises valid questions:  What’s the proportion of cases and proportion of dollar value of claims?  What are the trends?  What actions has the City taken to reduce its exposure in high risk/high value claims?  How many times does the Council send a staff recommendation back for further review/negotiation versus adopting staff’s position?  Is there a consent calendar of low risk/low value claims that constitute “go-away” money and then a more active agenda of high risk claims?

    Perhaps this is summarized in a periodic public report we could look at for more insight into the process—instead of only visualizing where people sit.

    BTW, how’s the feng shui in the green room?  Is it aligned so the money runs out the door?

  4. Napper #1:  You may wish to keep napping, but I must disagree.  The public has a right to know everything about what our government does.  They may not have the immediate right—since litigation strategy could be affected and personnel decisions are subject to modification before they become final; but at some point, we should know everything that goes on in our government.  How else does one prevent abuse of power?

  5. School boards have the same closed session meetings for their matters like personnel, expulsions, labor negotiations, lawsuits etc…School districts and cities share information after action has been taken.

  6. JMO #4
    To answer your question:  You could try filing a “discovery motion.” 
    On a more serious point, we should make sure that we elect officials that we trust.  That’s the best way we have in a representative type of government that we have.

  7. I can see your post today is directed at me.  Yes, I admit I am the cause of lawsuits against the city of San Jose.  I’ve orchestrated these lawsuits because of the high probability of winning against Rick Doyle.  You’re the first person who has connected the dots.  Therefore, I will confess and apologize for my other schemes against the City, since it is only a matter of time before you figure them out.  I apologize for:

    1) The money problems at the MHP
    2) The Donner House fire
    3) The Terry Gregory scandal
    4) The Little Saigon debacle
    5) The Cisco/City Hall scandal
    6) The Porter-Stock building fire
    7) The Norcal garbage cover-up
    8) The Sycamore tree cutting in Willow Glen
    9) The Tropicana shopping center fiasco
    10) The Concert Hall fiasco/lawsuit with the County
    11) The closing of swimming pools
    12) The poor maintenance of parks
    13) The limited opening hours of libraries
    14) The perverts in MLK Library
    15) The drunks at San Jose nightclubs
    16) The San Jose Grand Prix failure
    17) Joe Guerra’s threatening e-mails
    18) The crumby artwork at City Hall
    19) The poor quality of SJ Mercury News
    20) Hon Lien’s failed City Council bid
    21) The Coyote Valley shenanigans
    22) The SCV Water District padded payroll
    23) The poor service of VTA

    Again, I am deeply sorry for causing these problems.

  8. I agree with JMO. I think trusting officals with everything is not a very smart idea. Look at the recent naming mess! YIKES!
    I don’t and wouldn’t trust my present Council Member with much of anything that affects me, and because I didn’t get a choice in electing the others on the Council, well enough said.

  9. Just so I understand some of the people that have posted,you would want all closed session items to be talked about in the public? Threats of litigation in public? Union negotiations in public? Sexual harassment claims in public? Worker comp claims? Are there privacy issues like a attorney has with their client?

  10. #9- For me, no, I don’t think everything should be discussed publicly. But it should be disclosed when it is appropriate. I think there are certain things like employee discipline, or litigation strategies that should remain confidential. Employee wages, and Union contracts, once privately negotiated, should be disclosed. Our taxes do pay their salaries.

  11. Napper #6—what if they seem trustworthy, talk about Sunshine, then…oooops, same ol’ same ol’?

    #9—to answer your question—YES!!!  It’s when, not if, these things should become public that is the sole issue.

  12. # 13 JMO

    As we both know we have a representative type of gov’t.  As such we cannot micro-manage it.  If they are losers vote them out next time or recall them. It really doesn’t do any good to whine and snivel…..

  13. Here is payout information for the last 5 years that came out the General Fund:

    2002-2003   2,259,649.16
    2003-2004   1,440,793.00
    2004-2005   1,067,325.50
    2005-2006   4,634,926.63
    2006-2007   1,571,188.40

    To give one case as an example is the Cau Tran case. This was the wrongful death case which resulted in a $1.8 million settlement in 2005.

  14. P.O.
    You say “out of the general fund.” 
    Were there any litigation settlements that were paid by the City out of any other funds or accounts over these periods?

  15. Napper #15—a theoretical right only, voting them out.  Have you seen the statistics of incumbent re-election?

    I’m not seeking to micro-manage.  If I were, I’d advocate istantaneous publication of all government work.  But if we don’t ever find out what they did, how will we know whether to vote them out, as you suggest?

  16. #18 These were legal payouts for sewer related issues not paid out from general fund but from sewer budget which are restricted funds ( cannot be used for police, park, libraries)

    2002-2003   2,259,649.16
    2003-2004   1,440,793.00
    2004-2005   1,067,325.50
    2005-2006   4,634,926.63
    2006-2007   1,571,188.40

  17. Restricted funds aren’t all that restricted. 

    You can’t directly spend sewer funds on police, for example.

    But you can spend sewer funds to move sewer lines for a new library, housing project, or police station.  This decreases the general fund cost of the project, leaving general fund money left over for police. 

    Net effect: you shifted sewer funds into the police budget.

    The same trick works with utilities funds and roads funds.  And RDA money goes everywhere.

    Mountain View did this with a housing project, and Santa Clara is doing it for the 49ers.  I’d be really surprised if San Jose didn’t use the trick now and then.

  18. Greg – absolutely right –

    San Jose frequently shifts money from ” restricted ” funds but doesn’t want public to know since they ” wouldn’t understand ” and would question why tax funds were shifted to benefit special interests groups and campaign supporters rather than public and whan accountability for public money

    Mayor and Council members have office and other funds from taxes, city contracts and private donations from developers and businesses doing business with city that are not disclosed or accounted for to public where money comes from or is spent

    They also ” find ” millions from bond refinancing, interest on city investments, funds left over from over estimated projects and other sources to fund special Council projects

    Try finding how many millions taxes is given out to developers, corporations, non profits, friends or “insider” deals or no bid contracts – good luck – while our streets, parks police etc are cut year after year – No accountability or sunshine in San Jose unles you are an insider

  19. #23

    Do not expect an intelligent discussion about transportation from a San Jose City Council member.  They are still allowing San Jose International to expand instead of closing it and moving the airport to Hollister. 

    If they are so incompetent as to not understand how having an airport downtown is killing San Jose, and preventing the city from becoming anything other than a dressed up slum, you certainly cannot expect them to understand BART.

  20. Our five City Council people sitting on the VTA Board are not stupid. They must be fully aware of San Francisco BART experts claim that tunneling like San Jose plans to do will cost $1 billion per mile.

        This BART project, should they go ahead with, will make our $1/2 billion dollar new City Hall look like peanuts.

        These same people were Mayor Gonzales critics. Now look at them.

  21. #25

    Hollister already has an airport they want to expand.  In a location like Hollister an airport does make sense.  It will help them from an economic perspective since they have land,  but no significant other use for the land.

    San Jose, on the other hand, can easily use the land the airport is on for other uses with a better economic return.  Not to mention how all the restrictions on development around the airport will no longer be in place, thus freeing up an even larger amount of land for better uses.

    Morgan Hill and Gilroy do not make any sense to me in so far as putting an airport there.  They are just a short hop via high-speed rail to Hollister.

  22. Another big secret !

      San Francisco just received cost estimates to extend BART undergroundusing the same tunneling process as San Jose. The S F consultants studies projected cost for a 1.9 mile extension is $1 billion per mile for tunneling.

        VTA has been spending for a long time, with the blessing of our 5 San Jose Board members, $2 million per week on BART consultant studies. Do you think our “5” council members whom serve on the VTA Board are aware of this new cost increase for tunneling?

        San Jose is planning a 4.9 mile tunnel as part of a 16 mile project to Warm Springs, San Francisco 1.9 mile tunnel extension. This new cost would change the $6.1 Billion San Jose estimate by almost doubling the $6.1 Billion in addition to the interest expence.

        Pierluigi is this the type discussion that belongs in the “green room”, away from the S. J. residents ears?

          So much for the Sunrise process promices for open government?

  23. David D-

    You can get the cost numbers for all public transit agencies at http://www.ntdprogram.gov/ntdprogram/

    You get a fully loaded cost for each transit mode, such as bus, light rail, and paratransit.  You also get number of hours of service, and number of vehicle miles.

    Divide to get the cost per vehicle mile of light rail service.  You can also get the cost per mile of BART, Caltrain, and busses.  It should get you a more accurate calculation. 

    I recommend doing your calculation in vehicle miles, so you don’t have to adjust for vehicle speeds or service frequency.

  24. Speaking of back room….

    I was just crunching some numbers from the VTA 2006-07 Adopted Budget.
    — 2007 VTA operating budget is $360 million
    — 70% of that is direct labor – hourly
    — there are 8 bus drivers for every 1 Lt Rail driver
    — 70% of $360 M is $252 M
    — 8/9 ths of $252M is $224 M for bus driver and bus related hourly wage cost.
    — $224 from $360 is $136 M for all else.
    — If half of that $70M
    — that says Lt Rail operating cost is…
      1/9th of $252 ($28M) plus
      1/2   of   136 ($ 68M)
    or $96M at the very outside (FY07$)
    Divide that by 78 Lt Rail miles served…
    That’s $1.23M per mile per year operating cost.
    Multiply that times 16.3miles of SVRT line, that’s $20 million /yr.

    Lt Rail on standard guage can carry the same number of passenger / car as BART.

    Why not consider a Lt Rail solution?

    Why lock VTA and member cities into an $80M to $90M per year (FY09$) payment for life?

    BART serves 104 miles with an operationg budget of $629Million. 

    That’s $6.048 million per mile per year…

    Times 16.3 miles =  $ 98.58 million per year

    Is this something we can discuss in the open?

    If these numbers are off; how far off and where?

  25. Thanks for the suggestion.  Good data.

    BART vehicle revenue miles per year:  62,088,502   (NDT data)
    BART 2008 Operating Budget is $629 million
    You do the math.
    That’s $9.99 BART Operating Cost per Vehicle Mile

    SVRT 33 mile loop (WS-SJ-SC-SJ-WS) with trains leaving every 15 min. for 20 hrs per day times 365 days

    That says the BART SVRT line will add 13,000,000 vehicle miles per year to BART’s total vehicle revenue miles per year.

    13,000,000 vehicle miles per year times $9.99 per Vehicle mile is about . . .

    $130 million per year in FY09$

    Why would BART want VTA to pay anything less to manage and operate SVRT?