Category Archives: Benicia City Council

Lois Kazakoff in the SF Chronicle: Mayor muzzled from speaking about crude by rail

Repost from The San Francisco Chronicle
[Editor: Minor correction – the legal opinion that would muzzle the Mayor was written by an outside contract attorney, not by City Attorney McLaughlin.  That said, Mayor Patterson has stated publicly that the city attorney has advised her not to participate “in any way in any city decisions” relating to Valero’s pending permit decision, and to refrain from sending out “e-alerts” about the project and related crude-by-rail issues and to not engage in public discussion of the matter.  UPDATE: late on Nov 18, the Benicia City Council voted unanimously to waive attorney-client privilege in order to make the opinion available to the public.  DownloadJenkins Opinion Re Mayor Patterson-Valero ProjectDownload: Mayor Patterson’s attorney, Diane Fishburn’s opinion, and Fishburn’s letter to the City Attorney.  – RS]

Mayor muzzled from speaking about crude by rail

By Lois Kazakoff on November 18, 2014

Opponents in the national debate over climate change will enter the ring tonight in the City Council Chambers of the small riverside city of Benicia (Solano County). City Attorney Heather McLaughlin has thrown down the gantlet with this small item on the City Council agenda.

CONSIDERATION OF WAIVING THE ATTORNEY-CLIENT PRIVILEGE FOR THE OPINION REGARDING MAYOR PATTERSON AND THE CRUDE BY RAIL PROJECT. (City Attorney)

Buried in the legal language is a debate over Mayor Elizabeth Patterson’s First Amendment Right to communicate with the citizens of Benicia about Valero’s pending land use application to modify its refinery to receive crude by rail rather than crude by tanker ship. At stake is a robust democratic discussion over a decision that will affect not just Benicia but every community on the rail line between the Bakken Oil Shale fields in Montana and the Dakotas and Valero’s Benicia refinery.

McLaughlin has written a confidential opinion on the mayor and the crude by rail project. It is her view that she cannot release the document unless the majority of the five-member City Council waives the attorney-client privilege by which she is bound. “At least three have to decide to make the opinion public,” she told me.

Benicia is a town of 28,000. Valero is its largest taxpayer and a significant presence in the community. Beyond the smokestacks and coolers visible from I-680, the refinery’s footprint is visible downtown and throughout the city. As part of a decade-old legal settlement, the city received $15 million from Valero that it has used to fund median landscaping projects, community gardens, education programs, water audits for homes and construction of community center with sustainable building materials. But should a mayor or any other elected official be kept from speaking about a corporation with a large influence  in the town they lead?

Early this summer, when the city attorney advised the mayor that she should not send e-mail “e-alerts” to her constituents about Valero’s pending environmental impact report so as not to give an appearance of bias, Patterson hired an attorney. In a letter, the law firm wrote that the mayor did not have a disqualifying conflict of interest in the Valero matter. And further, quoting state law, “As a public official you certainly not only have ‘a right but an obligation to discuss issues of vital concern’ to your constituents and to state your ‘views on matters of public importance’.”

Patterson has told me, “The Valero project has broad issues and concerns. I was elected by people who know that I had knowledge of these concerns. I’ve campaigned on that, I’ve written on that. My constituents expect me to represent them.”

And she should. And the city is wrong to try to muzzle the mayor.

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    Jan Cox Golovich letter: Benicia’s big problem

    Repost from The Vallejo Times-Herald
    [Editor: Jan Cox Golovich is a former Benicia City Councilmember.  – RS]

    Jan Cox Golovich: Benicia’s big problem

    Vallejo Times-Herald, 10/24/2014

    Behind closed doors, the Benicia City Attorney and certain members of the city council have attempted and failed to strip the mayor of her First Amendment right of free speech. Even though they refuse to identify themselves to the public, the council members have revealed their desperation to salvage Valero’s doomed and dangerous Crude By Rail project.

    The city attorney has a much bigger problem— the State Attorney General has called out the city for the legal inadequacy of Valero’s Crude by Rail Draft Environmental Impact Report (DEIR). Lined up behind the state is a long list of other public agencies, NGO’s and community groups ready to humiliate the city in court should it dare certify the document without major revisions and recirculation.

    A competent city attorney, acting in the public interest, would extricate us from this legal dilemma by withdrawing the currently flawed DEIR and defend freedom of speech with all her might.

    Jan Cox Golovich/Former member Benicia City Council

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      Benicia Mayor Elizabeth Patterson asked to recuse herself from Valero crude-by-rail decision

      Repost from The Vallejo Times-Herald
      [Editor:  It’s sad that some would try to silence Mayor Patterson since she has carefully avoided coming out publicly or privately against Valero’s project.  The good news here (lemons to lemonade) … the City Attorney’s challenge, once denied, should open the door to EVERY Council member to speak more freely in addressing important issues outside of Council chambers and prior to decisive votes.  More public debate on the part of all on the Council and various Commissions, boards and committees will be good for Benicia.  – RS]

      Benicia: Mayor Elizabeth Patterson asked to recuse herself from Valero crude-by-rail decision

      Elizabeth Patterson rejects city’s advice, hires attorney
      By Tony Burchyns, 10/13/2014

      Benicia Mayor Elizabeth Patterson

      BENICIA>>Mayor Elizabeth Patterson is claiming that the city is trying to muzzle her on public policy questions related to plans to increase crude oil train deliveries to the Valero refinery.

      Patterson revealed to the Times-Herald the city attorney has advised her not to participate “in any way in any city decisions” relating to Valero’s pending permit decision. Patterson also said the city has asked her to refrain from sending out “e-alerts” about the project and related crude-by-rail issues and to not engage in public discussion of the matter.

      “I feel the city is trying to muzzle me on my questions and alerting the public on major public policy issues of crude-by-rail, fossil fuels, public safety and environmental air, water and habitat hazards,” Patterson said in an email. She said she has rejected the city’s advice and hired a lawyer to defend herself against what she views as an attack on her free speech rights.

      City Attorney Heather Mc Laughlin declined to comment the matter, citing attorney-client privilege. However, Mc Laughlin said a handful of community and City Council members had raised conflict-of-interest concerns about Patterson’s engagement in the public discussion of the controversial project. She wouldn’t say which council members raised concerns.

      Council members Alan Schwartzman, Mark Hughes, Christina Strawbridge and Tom Campbell declined to comment.

      Valero is seeking permits to build a rail terminal to receive up to 1.4 million gallons of crude oil daily by train. The city is in the process of responding to dozens of comment letters on the initial environmental impact report from residents and state and local agencies.

      Patterson, who has served on the City Council since 2003 and as Benicia’s elected mayor since 2007, regularly communicates with residents on a wide variety of issues. In particular, she sends periodic “e-alerts” to people who have asked to be on her email list.

      This year, several of those communications have included information regarding the city’s review of Valero’s pending land-use application as well as discussions of public policy issues raised by the proposed increase in oil train traffic.

      In March, Patterson – a retired state environmental scientist working part-time on the California Water Plan – wrote a San Francisco Chronicle op-ed encouraging Gov. Jerry Brown to issue an executive order to ensure the state is prepared to deal with “highly flammable and explosive Bakken crude oil from North Dakota coming by rail and water into California.”

      In June, she testified with other officials at a legislative oversight hearing in Sacramento about state and local agencies’ preparedness to respond to oil train accidents like last year’s explosive derailment in Lac-Megantic, Quebec, which killed 47 people. She didn’t comment at the hearing on the merits of Valero’s project.

      In a letter to the city, Patterson’s attorney Diane Fishburn defended the mayor’s right to communicate with her constituents and participate in the public discussion. Patterson disclosed the June 26 letter in response to a recent Times-Herald inquiry about thousands of dollars in legal expenses on her latest campaign finance report.

      “The law fully supports the mayor’s complete participation in both the public community discussions and her activities in her role as mayor as well as in any decisions which may come before the council on the project,” Fisburn wrote. She cited a 1975 state Supreme Court ruling that held that the public statements of two Fairfield City Council members opposing a proposed shopping center did not serve to disqualify them from participating in the city’s decision on the project.

      “These topics are matters of concern to the civic-minded people of the community, who will naturally exchange views and opinions concerning the desirability of the shopping center with each other and with their elected representatives,” the court wrote at the time. “A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views of public importance.”

      In that 1975 decision, the court also quoted a 1958 New Jersey Supreme Court ruling that stated “it would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn … duties.”

      Fishburn argued Patterson has not made public statements or indicated a specific position on the pending project. “However, even if she had expressed views on the pending Valero permit, it is clear based on (related case law) that this wouldn’t disqualify her from participating in the on-going proceedings and in future City Council decisions in the matter,” Fisburn wrote.

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