Repost from The Sacramento Bee
[Editor: Don’t let the headline put you off – this is the most thorough analysis yet on the controversy in Benicia.  Tony Bizjak does a good job presenting Mayor Patterson’s defense as well as the perspective of those who would silence her.  – RS]

Benicia mayor’s public skepticism puts vote on oil trains in jeopardy

By Tony Bizjak, 11/23/2014

The hot national debate over crude oil train safety has taken an unusual twist in the Bay Area city of Benicia, where a blunt-talking mayor’s right to free speech is being pitted against an oil company’s right to a fair public hearing.

This summer, amid tense public debate over a Valero Refining Co. proposal to bring crude oil on trains to its Benicia plant, Mayor Elizabeth Patterson revealed that the city attorney had privately advised her that her frequent public comments about oil transport safety could be seen as bias against the Valero project.

The mayor said the city attorney advised her to stop talking about the oil trains and sending out mass emails containing articles and other information, and to recuse herself from voting when it came before the council.

Patterson, a longtime community planner and environmental activist, is refusing to step aside, saying she has a duty to share information with constituents about the city’s pivotal role in the crude oil debate, one of the biggest environmental fights in the state.

The situation in Benicia provides an unfolding civics lesson on the sometimes-surprising legal tightropes cities and public officials must walk when dealing with high-stakes issues. The trains in question would pass twice daily through downtown Sacramento and other Northern California cities en route to the Benicia refinery.

Patterson points out she has never said she would vote against the Valero project and said she hasn’t yet made up her mind. “I am providing information. I am letting people know what is going on,” she said. “We ought to be talking about this.”

But a recent legal analysis, commissioned by Benicia City Attorney Heather McLaughlin and released publicly by the city last week, says Patterson appears to have stepped over a little-known and somewhat fuzzy legal line that could land the city in court.

Valero, the city’s largest employer and owner of a sprawling 45-year-old refinery on a hillside over Suisun Bay, wants to begin receiving two 50-car oil trains a day sometime next year. Valero officials say the shipments will help keep the refinery competitive in a fast-changing oil industry by providing rail access to cheaper oil, instead of marine shipments from Alaska and foreign countries.

The success of the Valero refinery is important to Benicia. The taxes it pays fund nearly a quarter of the city government’s annual operating budget.

But the fast-growing crude-by-rail phenomenon is controversial. Several oil train explosions, including one that killed 47 people in a Canadian town, have prompted federal officials to call for improved safety regulations. The California attorney general and other state safety officials recently challenged Benicia to do a better job of studying the environmental and safety risks of the Valero plan.

Patterson was among the early voices on oil train safety issues, writing an opinion piece in March in a Bay Area newspaper calling on Gov. Jerry Brown to take immediate steps to protect public safety as the trains begin to roll. She also has been sending mass emails to constituents for more than a year with updates on the project, copies of news stories about crude oil issues, and Valero-related matters.

This spring, two council members asked the city attorney to look into whether Patterson was playing too much of an advocacy role. Mark Hughes, a former PG&E executive, and Christina Strawbridge, a business owner, said several constituents had asked them if the mayor’s comments were appropriate. Both told The Sacramento Bee they were not approached by anyone from Valero.

Hughes said the matter is not personal. Speaking at a council meeting last week, he said, “for anyone to think that this was a witch hunt … for bringing it up against the mayor is just wrong. I think the mayor knows that. It clearly was not an attempt to intentionally try to get her to recuse herself; it was an attempt to get some clarification.”

Strawbridge, also speaking at the council meeting, said she put materials together to bring to the city attorney “to find out if the city is in legal harm here because of our mayor and making these kinds of statements … I have had questions about how the mayor could continue to be unbiased in this situation.”

At issue, experts say, are the different legal roles council members play and how they are permitted to act when playing those roles. In California, elected officials can express opinions and advocate for outcomes when they are writing new policies or laws, or deciding how to spend the city budget, municipal law experts say.

But courts have ruled that local elected officials cannot speak out too forcefully prior to holding a hearing and vote on “administrative” or “quasi-judicial” issues, such as voting on a homeowner’s request for a variance or a company’s request for a permit to expand its business.

In those cases, legal experts say, the applicant’s right to have its request heard by an impartial, unbiased board trumps a board member’s right to express their opinion before the formal public hearing.

JoAnne Speers is a former general counsel to the League of California Cities who now teaches leadership ethics at the School of Management at the University of San Francisco. She said case law on the matter can trip up cities and elected officials.

“I feel for the mayor and elected officials generally,” she said. “It seems paradoxical with issues of great importance to their community, if they want to participate in the decision, they are subject to certain constraints.”

The question now in Benicia is whether the mayor’s writings and emails have crossed the legal line.

The attorney hired by Benicia to review Patterson’s public comments, Michael Jenkins of Manhattan Beach, also serves as legal counsel for several California cities. He concluded that a court likely would consider Patterson to have stepped over the line. He noted in his analysis, though, that there are not many court cases to use for guidance, and acknowledged he is offering the city of Benicia conservative advice.

“This is a close case,” Jenkins wrote in his report. “In our opinion, a court likely would find that Mayor Patterson’s oft-expressed skepticism about transportation of crude oil by rail evidences an unacceptable probability of actual bias. The evidence is sufficient to warrant her preclusion from participation in the decision.”

His conclusion was based on 17 of Patterson’s emails and on Patterson’s opinion piece in the San Francisco Chronicle, headlined “Governor must ensure rail tanker safety.” In that piece, she wrote that “crude-by-rail shipments in unsafe tank cars pose imminent danger” to rural communities, and asked, “How would the Suisun Marsh survive a potential spill, explosion and fire?” She did not mention Valero by name, nor did she expressly say she opposes crude-by-rail shipments.

Patterson said she has been sending such e-blasts to constituents for years on city topics. She estimates she has about 500 subscribers. Most of the blasts involve Patterson disseminating published articles, press releases and other people’s comments. One included a story from The Sacramento Bee in which Sacramento leaders accused Benicia of failing to fully acknowledge the risk of spills and fires from the Valero project.

Another email passed along an article about speakers at a meeting organized by project opponents, Jenkins said. Patterson followed that with an email containing a Southern California newspaper editorial disagreeing with Patterson’s Chronicle opinion piece, and accusing her of rushing to judgment on the crude-by-rail issue. Another Patterson email contains a report lauding Valero for its plant safety measures.

In determining that Patterson should not vote on the Valero project, Jenkins cited a 2004 Los Angeles appellate court case as most comparable to the Benicia situation. There, he said, a city planning commissioner wrote an article for his homeowners association expressing concerns that a project would have negative environmental impacts. The commissioner then voted to deny the project. The court ruled that his comments “gave rise to an unacceptable probability of actual bias.”

Patterson’s attorney, Diane Fishburn of Olson Hagel & Fishburn in Sacramento, countered that a 1975 California Supreme Court ruling suggests Patterson is within her rights in speaking her opinion. In that case, involving the city of Fairfield, a developer tried to have the mayor and a councilman barred from voting on his shopping center proposal because the mayor told the developer he was opposed to the project, and the councilman spoke against the project at public meetings.

The court stated that the shopping center project had major ramifications for the city, and that a “councilman has not only a right but an obligation to … state his views on matters of public importance.”

The Fairfield case “is right on point with Elizabeth’s situation,” Fishburn said.

Jenkins cited that Fairfield case, as well, in his report for Benicia, acknowledging it provides support for Patterson’s position. But he pointed out that the court noted that most of the Fairfield council members’ comments came during a political campaign, where, Jenkins said, “candidates should have the freedom to express their views.”

Valero officials did not respond to a request for comment.

Under city rules, the Valero permit request will be voted on by the city Planning Commission, and would only come before the City Council on appeal. If it does, legal experts and city officials say it is up to Patterson to decide whether she should recuse herself.

Patterson said she does not plan to step aside and that she will be able to cast an unbiased vote. “I am going to (continue to) do what I have been doing,” she said. “The challenge here is I have to be scrupulous in weighing the facts before me.”

Benicia’s Mayor, Elizabeth Patterson, has been accused of a conflict of interest and asked to recuse herself from all comment and action regarding Valero Benicia Refinery’s crude by rail proposal.

Two City Council members, Mark Hughes and Christina Strawbridge, disclosed Tuesday that they initiated the inquiry with Benicia City Attorney Heather McLaughlin, acting on concerns of unnamed constituents that the Mayor is biased.  McLaughlin is said to have advised that California’s Fair Political Practices Commission would not be an appropriate venue to seek advice or action, in that there is clearly no material conflict of interest (financial gain).  McLaughlin then contracted with an outside consulting attorney,  Michael Jenkins, to write an opinion on common law grounds for recusal.

Jenkins’ opinion is inconclusive, but offers case law on bias, and suggests that it would be best for the City if Mayor Patterson would choose to recuse herself and cease all e-alerts and commentary on anything related to the issue.  “…in our opinion, a court likely would find that Mayor Patterson’s oft-expressed skepticism about transportation of crude oil by rail evidences an unacceptable probability of actual bias. The evidence is sufficient to warrant her preclusion from participation in the decision.”

In her defense, Mayor Patterson contracted the services of attorney Diane Fishburn, whose legal opinion, states in summary, “With respect to the application of the common law doctrine of conflict of interest, it is our view…that there is no evidence that you have a personal bias based on either a substantial pecuniary or personal interest in the outcome of the matter. 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.'”

Fishburn also wrote a letter to City Attorney Heather McLaughlin, stating even more boldly the Mayor’s freedom of speech in the matter: “We have reviewed the matter with our client, and it is our opinion based on the Supreme Court’s decision in City of Fairfield v. Superior Court of Solano County (1975) 14 Cal.3d 768 that she does not have a common law conflict of interest in this matter, and that she not only has First Amendment rights as a citizen and public official, but she also has the right and duty as an elected official to participate in the public and City discussions regarding this important matter. Equally importantly, she has First amendment rights to communicate freely with her constituents and the public in general on any and all issues of public policy and concern, and any attempt by the City or city officials to curb those rights would be an unlawful restraint of her speech under the U.S. and state Constitutions.”

Mayor Patterson says she will not recuse herself, and will continue to exercise her constitutional freedoms and her responsibilities as Mayor.  In an email, she offered the following comment: “Right.  Seeking rail safety is biased?  Free speech becomes bias even before there is any action before city council?  And having an opinion about public safety, health and welfare is a mind made up?  …The message is that I should not do my job.”

Two local news media have covered this story.  For more see The Benicia Herald and the Vallejo Times-Herald.  For more background see Local Media Coverage.