Cupertino’s Former City Attorney Poised to Sue for Wrongful Firing

When Cupertino canned its city attorney, Randolph Hom, without notice or explanation this past summer, local watchdogs had a feeling there was something sketchy afoot. It looks like they were onto something.

Hom is gearing up for a wrongful termination lawsuit, claiming the city fired him so it could force through the $3 billion Vallco development despite concerns that it violates state law and the city’s blueprint for future growth.

The Sand Hill Property Company’s Vallco proposal, which would transform an aging shopping mall into an urban hub of 2,400 housing units and 2.2 million square feet of office and retail space, has become an important test for a new state law (SB 35) that fast-tracks certain residential development to east the affordability crisis.

But Hom told the city in April that it didn’t pass muster.

According to a pre-litigation filing, Councilman Barry Chang threw a fit, making verbally abusive comments—including one about a colleague, Councilman Rod Sinks, purportedly hating Hom because he’s Chinese—and sending a slew of text messages telling the embattled attorney to shut up and get in line with the city’s efforts to greenlight the project.

Chang also allegedly called Hom an “obstructionist” and told him that if he continued to oppose the Vallco plans, he’d have no choice but to oust him.

Hom, however, said he refused to comply with what he believed to be unlawful orders and sounded the alarm about city officials’ improper discussions with Sand Hill about its SB 35 application.

“These discussions occurred during the sensitive time period between submission of the application and the deadline upon which the city would approve it,” Hom’s claim states. “But more than that, the friendly relationship between the [developer and the city] has flourished for over a decade.”

Cupertino spokesman Brian Babcock said the city is aware of the tort claim, but that he can’t comment on pending litigation.

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12 Comments

  1. Friends of Better Cupertino filed June 25 and amended their lawsuit against the City October 16. Look into who on city council fired Hom and who approved Vallco Tier 2 which is subject to a Referendum Petition drive at Cupertino Library M-F 4-8pm Saturday And Sunday 11-6:30pm. Sunday is last day to collect enough signatures. SB35 is an empty threat, our own City Attorney said so! Help spread the word to Cupertino voters. Thanks Fly! You rock!

  2. Looks like Barry Chang has again gotten himself in hot water, this time with potentially really bad ramifications for the city and its residents. Local watchdog group “Better Cupertino” appears to have called this one correctly despite the obfuscation by former mayor Richard Lowenthal and “local news reporter” Jean Bedord.

    But it takes three to tango in firing a high level employee like a city attorney. Those three are likely to be the same three that voted for the developer (Savita V., Rod Sinks and Barry). Savita V. is up for re-election.

    Hopefully voters will refuse to elect Barry Chang to the Santa Clara Board of Education, and re-elect Savita V.

    The watchdog group “Better Cupertino” has two candidates they have endorsed to bring back good government to Cupertino, Jon Willey and Liang Chao. Worthy of consideration.

  3. San Jose Inside deserves credit for its August 1 story on the Cupertino City Attorney’s disappearance. They were on to something well before this bombshell hit

  4. Interesting to see how this progresses.

    The vital thing now is to re-elect Mayor Darcy Paul and to not elect the developer-owned and financed, Chamber of Commerce-controlled, candidates Savita Vaydinathan, Orrin Mahoney, and Hung Wei. Vote for Liang Chao, Jon Willey, and Darcy Paul because they are not corrupt.

    • Power corrupts all. A politician who isn’t corrupt is a wishful and novel idea but unfortunately is a bit optimistic. Sand Hill Stanford developers have the money to buy off any and all lawyers and politicians. One only needs to look how they have corrupted local city councils like Palo Alto, Santa Clara, Mtn. View, Sunnyvale, Cupertino, etc.,etc……

      • Maybe, slowly this is being exposed to people in these communities. These city councils and staff have undermined the people in all levels of income in their communities. They have not proteced our rights for a better quality of life. Overdevelopment, unrecognizable, unattractive landscapes with unplanned infrastructure causing worsening traffic, look at Wolfe Rd. they really do not have a solution. Economic diversity is being ignored, tearing down homes and apartments not caring about displacement of long standing residents. This is just the beginning of the fallout. We still have time to change those in power and incompetence. Bless us all.

        • Who do you recommend for Sunnyvale city Council? I’m going to vote this weekend and send in my ballot.

      • Thank Peter Pau (Sand Hill) for lawsuits that prevented Sunnyvale from restarting the Town Center development for nearly 8 years.

  5. Barry-gate calls into question Chang’s endorsements as well. I would not vote for those he endorsed for Cupertino City Council – which are Hung Wei and Savita.

    Hung Wei in particular works for Barry Chang’s Real Estate business, “Better Home & Loan”.

  6. Sand Hill is really going after Liang Chao and Jon Wiley, having mailers go out in the mail and now have a telemarketing firm call people and not to vote for Liang Chao and Jon Wiley

  7. This is all very interesting. Reading all the various sources of information, including this one, I think I have put everything together. Sandhill’s SB 35 application really isn’t conforming, so it was an empty threat to spur actual planning review through the City. The City attorney was going to identify the SB 35 deficiencies, but if he did, the SB 35 threat would basically be useless after that. So they terminated him. I actually agree with the attorney – read SB 35 and it is very clear about the exemptions based on zoning. This project doesn’t comply with the SB 35 requirements. In any case – with the referendum on the specific plan plus the lawsuit about the SB 35 (which sandhill will lose) the project is effectively stopped. Sandhill is going through some final convulsions before rigor mortis – i.e. negative campaign aids and threatening press releases. These are sort of moot now with the referendum. Seems like that neighborhood group outplayed them. Also, Sandhill needs to think about its PR image if it pushes the SB 35. If you become ‘that’ developer – think about how all those other projects subject to normal planning review with public comment will be processed in the future. You can only push your agenda so far through money and connections – at some point the will of the people is heard. They have done a good job keeping all of this in the backroom so the majority of people are unaware – but after this – it is all out in the open and people see. The most interesting thing though is due to Hom’s suit – a lot of Cupertino’s dirty laundry will be aired, which will be interesting to see. I am sure there are brown act serial meeting violations – that what you get when you have small time government being manipulated by sophisticated developers.

  8. Three e-mail messages were sent to Nicole Litzie of the Petaluma Police Department requesting police logs for a one-month period for September, 1993, in Walnut Park, Petaluma, CA, where soon-to-be convicted Polly Klaas kidnapper-murderer Richard Allen Davis and other men were accused by neighbors of engaging in various illegal activities, including illegal drug possession and usage and public inebriation. Neighbors said the police failed to intervene, even though there was enough evidence, based on Davis’ activity in the park, to sentence him to death for stalking Polly and premeditation with a three week stay in Walnut Park.

    By law, the police can destroy records after 2 years or if outside the statute of limitation for presumed crimes. This investigator questions why the law exists to assist in cover ups and help a state already rewarded with more power after several police officers refused to put out an APB on Polly’s abduction, when she, her abductor, and her abductor’s car were well described, and two Sonoma County Sheriff Deputies intercepted Davis north in Kenwood, two hours after the abduction. He was reported as high on drugs, drinking, with his car in a ravine, and they helped him get his car out of the ravine and set him free. Polly was later found further to the north in Cloverdale with her legs spread apart, night gown up, noose around her neck, and rope fibers in her hair, but a claim by the FBI on a recent Youtube video she was already dead in Kenwood.

    The Tri Valley Herald, in December of 1993 said the police logs were inaccessible, well before the two-year requirement. The San Mateo County parole board, using the Public Records Act, is cooperating on producing logs for September, 1993, when Davis was reported in violation of his parole by being out of the county north in Petaluma, where parole officers failed to check on home for three weeks, weekly inspection was required. No warrant was put out for his arrest.

    The five exchanges of e-mail between Litzy and this investigator, where Litzy, after 24 hours, failed to respond to this investigator’s third e-mail, went as follows:

    James Wood
    Tue, Oct 30, 6:05 PM (1 day ago)

    to police

    Hello,
    Please see attached document for Public Records Act request for police log information from September and October, 1993.

    Thank you.

    James Dante Wood

    Attachments area
    2
    Litzie, Nicole
    12:07 PM (7 hours ago)

    to me

    Hi James,

    There are no reports or other documents related to your request that are available to be released, nor do we have a record of the destruction date of the logs from 1993.

    Please let me know if you have any other questions.
    Thank you,
    Nicole

    From: James Wood
    Sent: Wednesday, October 31, 2018 11:58 AM
    To: Litzie, Nicole
    Subject: Re: Pubic Records Act

    Hi Nicole.
    Thank you. If any information can be released at all, please let me know my cost for duplication costs. I would also like to know, if possible, the timing of the destroyed police logs for Walnut Park for September 1 to October 1, 1993, as the “Tri Valley Herald”, a now defunct newspaper from Pleasanton, CA, where I was living in 1993, reported the logs were inaccessible December of that year. If police reports, independent of logs, are accessible, please let me know.

    James Dante Wood

    On Wed, Oct 31, 2018 at 10:04 AM Litzie, Nicole wrote:
    We are treating your request as a request for public agency information in accordance with California Government Code section 6250 and following (the California Public Records Act), which requires that public agencies make reasonably identified, non-exempt public records available for inspection or provide copies upon payment of the direct cost of duplication.

    Please be advised that portions of your request (“police logs from September 1, 1993, to October 1, of 1993, from Walnut Park” and “calls regarding illegal activity in Walnut Park, including homeless vagrants doing illegal drugs”) have been destroyed in accordance with California Government Code section 34090. Other portions of your request (“intercepts with convicted kidnapper murderer Richard Allen Davis”) are exempt from disclosure in accordance with California Government Code section 6254(f), which states that all complaint, investigation, intelligence, security, analysis and conclusions of law enforcement, and other law enforcement files as described in the section, are exempt from disclosure (Government Code § 6254(f); Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1069-1070). Additionally, the exemption for investigatory records and files extends indefinitely, even after an investigation is closed (Williams v. Superior Court (1993) 5 Cal.4th 337, 355-361; Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169; Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1052).

    I am responsible for this determination concerning your records request in my capacity as Records Supervisor of the Petaluma Police Department, in consultation with authorized representatives of the City of Petaluma. If you have any questions, or are able to refer me to controlling legal authority that supports a different result, please contact me.

    Thank you,
    Nicole

    Nicole Litzie
    Records Supervisor
    Petaluma Police Department
    969 Petaluma Blvd. North
    Petaluma, CA 94952-6320
    Phone: 707-778-4462
    Fax: 707-656-4059
    [email protected]

    Please consider the environment before printing this email.

    From: James Wood
    Sent: Tuesday, October 30, 2018 6:05 PM
    Subject: Re: Pubic Records Act

    Hello,
    Please see attached document for Public Records Act request for police log information from September and October, 1993.

    Thank you.

    James Dante Wood

    James Wood
    3:00 PM (4 hours ago)

    to nlitzie

    Hi Nicole,
    My question is, if you say the police logs were already destroyed, but you don’t know when, then how do you know they were destroyed? Is there a protocol where these records are routinely destroyed after a certain time period? The government code 34090 says there are exceptions to the right to destroy records, including:

    GOVERNMENT CODE – GOV
    TITLE 4. GOVERNMENT OF CITIES [34000 – 45345]
    ( Title 4 added by Stats. 1949, Ch. 79. )

    DIVISION 1. CITIES GENERALLY [34000 – 34102]
    ( Division 1 added by Stats. 1949, Ch. 79. )

    CHAPTER 1. General [34000 – 34095]
    ( Chapter 1 added by Stats. 1949, Ch. 79. )

    ARTICLE 4. Miscellaneous [34090 – 34095]
    ( Article 4 added by Stats. 1949, Ch. 79. )

    34090.
    Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required.
    This section does not authorize the destruction of:
    (a) Records affecting the title to real property or liens thereon.
    (b) Court records.
    (c) Records required to be kept by statute.
    (d) Records less than two years old.
    (e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.
    This section shall not be construed as limiting or qualifying in any manner the authority provided in Section 34090.5 for the destruction of records, documents, instruments, books and papers in accordance with the procedure therein prescribed.
    (Amended by Stats. 1975, Ch. 356.)

    (see https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=34090).

    So even though crimes allegedly were committed (drug possession, inebriated in public) within the statute, and these records were inaccessible before the end of the two year period where you can legally destroy the records, there must be an investigation about protocol.

    I may have to subpoena Santa Clara County Court records from the Davis trial of 1996, as witness and police reports of what happened in Walnut Park, September, 1993, were on record in the trial and are critical to the investigation I’m doing.

    Thank you.

    James Dante Wood

    https://www.PandaBusters.com

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