Eschewing Abstentions

I rarely abstain from votes because I consider it part of my duty as a public official to make up my mind on issues brought before us for action. Last night was a personal record for abstentions, though, as I opted out of four items. In three of those cases the reason was simple: I don’t generally vote on items that stem from periods during which I wasn’t serving or present. Since I only joined the Council late on December 12, 2011, minutes from before then and amendments made to the City Manager’s contract based on a performance review I had no part in are outside my purview. But the fourth instance was pretty unusual, and worthy of a brief explanation.

The San Carlos Redevelopment Agency is being sued by three school districts for monies the districts believe are owed to them. The San Carlos School District is one of the plaintiffs, and as a former trustee on its Board I was involved in a number of confidential discussions about the lawsuit. Having switched from the plaintiff’s side of the table to the defense’s, I have to operate under certain constraints, the obvious one being I cannot disclose confidential plaintiff information to anyone, including the City (that also applies to confidential defense information I learn, too).

But there is another, more subtle limitation. It is a basic principle of law that public agencies must make their decisions in an unbiased manner. In practice this means they must avoid even the appearance of a decision having been based on bias. Failure to do so can lead to third parties challenging a decision.

In the case of the redevelopment suit, there is an argument that someone who used to oversee the operations of one of the plaintiffs is likely to be biased in favor of the plaintiffs. Personally, I’m confident that wouldn’t be a factor in my case. But avoiding even the appearance of a decision based on bias means that I should not be the deciding vote when the Council determines how to proceed with the lawsuit. Since I can’t know ahead of time how my colleagues on the Council will want to act, my best course of action is not to participate in the vote.

Which is what I did last night by abstaining from the decision on whether or not to file an appeal. I did sit in on the closed session discussions, however, because how this situation unfolds will significantly impact the City, and I don’t want to be in the dark going forward.

By the way, my personal desire is to see the situation resolved as quickly as possible. While disagreements over complex endeavors like a redevelopment agency are to some extent inevitable, I don’t see the public interest as being well-served when public agencies do battle with each other in the courts.

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