Recently the Contra Costa County Grand Jury issued a report regarding Clayton. And while the City will respond to the report as required, I wanted to offer my own thoughts as it is a matter of community interest.
Overall, it's disappointing to see the amount of time and taxpayer resources spent on a report that not only gets several matters of fact wrong, but also relies on these errors to draw conclusions not supported by any evidence. While the report did identify certain matters of fact correctly, it contained a significant amount of errors and left out context that would impact a reader's understanding of the information presented to such a degree that the report is not useful. In addition, the Grand Jury's recommendations venture into the realm of policy making, something they were certainly not elected to do.
The report focused on four areas: Turnover, Agenda Setting, Financial Management, and Committee Activity. I'll touch on each area below and illustrate substantial flaws in each area.
***
On Turnover:
From the report:
Second, while the turnover in City Managers is undesirable, it is not accurate to imply that all turnover is for the same reasons. Some have left due to retirement, others seeking career growth, others for higher compensation, and others because the role may not have been a good fit. In some cases when a person separates, there are Non Disclosure Agreements (NDAs) or information subject to attorney-client privilege that is unable to be shared publicly. For example, if there were inappropriate behavior, it would need to be addressed but that action would likely be taken in a way not able to be shared publicly. In short, trying to create a narrative that people are leaving for the same reason, is misleading and false.
Even here the Grand Jury continues to make errors of fact when it states that things occurred contrary to these Guidelines. The Guidelines clearly state that it is the Mayor's discretion as to which meeting a requested agenda item will appear. Exercising this discretion is well within the scope of the Guidelines.
Beyond misleading however, is inflating the number of people who have left to sensationalize a narrative. For example, the claim that the City has gone through twelve City Managers. In reality, including the resignation of our last City Manager in early 2024, the real number is four (five if you include our current City Manager) which is inclusive of the retirement of a person with 17 years of tenure (Napper, Taumoepeau, Schwartz, and Prebula). The only way that the figure comes to twelve (actually fourteen if using the Grand Jury's own stated methodology) is if those serving in interim and acting roles were counted. But this is intentionally misleading as these are different roles. There is a reason the title is “INTERIM City Manager”, and not simply “City Manager”. They are literally different roles - the difference in title is a pretty good clue of that.
Those who take on interim roles intend to only stay in the role as long as is needed to find a person on a permanent basis. In fact, many of the people who take on interim roles are retirees who are restricted from working over a certain number of hours.
Those who take on interim roles intend to only stay in the role as long as is needed to find a person on a permanent basis. In fact, many of the people who take on interim roles are retirees who are restricted from working over a certain number of hours.
In addition, including in this list folks like Hoffmeister, Warren, Walcker, McEachin, and Rubier lacks sufficient context as to be misleading. While technically these individuals did serve as Acting in the role of City Manager - they did so all for a very short time during times when the City Manager was on vacation, or during transitions between full time employees and interim employees. In each case none were actually selected by actions of the Council.
Later the Grand Jury report asserts the consequences of turnover as follow:
Following a similar pattern, the assertion makes errors of fact, and errors of omission. The Grand Jury report asserts potential savings of $151K to $165K. This is derived by comparing the amount paid to a contractor, 4 Leaf Inc., to the salary range of a new position created ($226K - $75K = $151K, $226K - $61K = $1655K.) Even taking the comparison at face value, this assertion would be wrong as it does not include the benefit load of a full time employee, which in Clayton is approximately 20% - 30%. This is an error of fact.
In addition, code enforcement was not performed by the Community Development Director as the report asserts - this was performed by a different role. What this means is that the comparison is not apples to apples and the potential savings are unfounded. It turns out that the code enforcement role performed by 4 Leaf was performed so well that the City ended up hiring the individual to continue code enforcement on a full time basis as an employee.
It is also important to note that the Council only hires the City Manager, and the City Attorney. All other positions of the City are hired by the City Manager and Council has no role in that process.
The next conclusion the Grand Jury draws is just as spurious:
While the original information that the firm, HdL stated was an estimated 2,000 businesses, this was based on false information provided by a former City Manager. When the current Council pressed HdL on this analysis, the actual figures turned out to be something different. City staff had previously represented that the City had approximately 1100 active businesses in the City. Extrapolating from there, HdL estimated that through their efforts they could discover an additional 900 businesses and therefore expand the pool of licensed businesses. If this were possible, it would increase City revenues.
After review, it turns out the information that prior City leadership (no longer employed with the City) overstated the actual number of businesses in the City. The actual number is closer to 500. This information was available as of March of this year and presented during a Budget and Audit Committee meeting, and then later at a regular Council meeting on April 1st. That the Grand Jury omitted this information which contradicts the conclusions drawn by the Grand Jury.
***
On Agenda Setting:
In this section, the Grand Jury makes a critical error - they treat Council Guidelines as binding rules which they are not. The Guidelines represent norms that have been adopted by the Council, but they are not controlling, nor is there any rule that requires they must be followed at all times. This should have been obvious to the Grand Jury since they are literally called "guidelines". Perhaps the item under Council Values that states "Humor is an important tool" could have been a clue, or the statement in the Guidelines that says, "Traditions are respected but not always binding."
From the Grand Jury report:
In addition, the Guidelines also require a written description to be provided - and in the example provided they identify that this did not occur until March of 2024. This contradicts the claim that a formal agenda request was made in the Fall of 2023. During the calendar year 2023 when I served as Mayor, I never received any written request as called for by our Guidelines. However, during the course of such verbal requests, the nature of the request changed multiple times. It ranged from a 360 degree review, to toxic or hostile work environment, to turnover, to overstepping, to training. This highlights the importance of a written request - so appropriate planning and staff time could be utilized in preparing agenda items.
Given the turnover during 2024, it's not surprising that the City's priorities were on staffing and continuity, not entertaining requests that changed each time they were made.
To be clear, our City Attorney is able to take action independently if they have evidence or suspect any action that presents risk to the City. Without being prompted, our City Attorney has in the past offered counsel and advice unsolicited in areas they felt appropriate, and has given direction on other matters as well. Our City Manager has authority to engage a third party for up to $30K without any other approval from Council that could be used to engage a third party investigation should they so choose. Both of these roles exercise independent judgment and did not taken any action related to the request for investigation.
What the Grand Jury report neglects to mention is that upon taking the role of Mayor in December of 2024, Mayor Trupiano reached out to Councilmember Tillman in an effort to address her previous requests for an investigation into fellow Councilmembers and training. A result of that meeting was an agreement to propose an ad hoc committee in order to facilitate a governance training workshop for Council and staff. Councilmember Tillman stated that this ad hoc committee and training satisfies her previous requests.
The leaps of logic and false assertions of fact by the Grand Jury continue:
Second, only those committees formed by formal action of the Council are subject to the Brown Act. If the Interim City Manager calls for a meeting to discuss agenda setting, prioritization, etc. and includes less than a quorum, and certain members of City staff, that does not constitute a Meeting per the Brown Act. To assert as much is incorrect on the law.
Third, two members who are less than a quorum of the Council can meet with whomever they choose (excepting on those topics that they represent a standing committee) and it would not be a covered meeting by the Brown Act.
Every single figure cited by the Grand Jury in the table above is wrong. All of the City's audited financial statements can be found on the City's website here: https://claytonca.gov/finance/accounting-financial-reporting/audited-financial-statements/
The rest of the conclusions drawn in this section rely on this erroneous application of the law. There was no Agenda Setting Committee, there were agenda setting meetings. There was no change in policy because no actual policy was adopted. Policies are not captured in the Council Guidelines, as those are guidelines, not controlling policies. As there was no committee, it clearly could not be subject to the Brown Act. Basically every assertion of fact and conclusion in this section is false.
***
On Financial Management:
The Grand Jury report in this section fairs no better in terms of accurately describing the facts regarding the Financial Sustainability Committee:
While members of the Financial Sustainability Committee did speak at our 4.1.25 meeting, the statements made were not that of the Committee itself, rather from individual members speaking as individuals. This was clarified during the meeting - that the Committee has taken no action in terms of adopting any kind of report to Council. Therefore the Council did not hear a report of the Committee's activities as the Grand Jury asserts.
As the Grand Jury identifies, a quorum of the Committee was not achieved until 4.16.24. During the first 6 months of a quorum existing, the Committee met twice. Hardly sufficient experience to review performance, and again, the guidelines cited by the Grand Jury are not binding.
When we get to the section on addressing the deficit, the Grand Jury's report fares even worse when it comes to identifying the facts:
For FY20, here is the relevant page from the City's audited financial statements (ACFR):
Here for FY20, the Grand Jury misstates the Revenue, Expense and "Net Surplus". I put "Net Surplus" in quotes because that is not an actual term that is used in financial reporting for the City. Instead, the correct term is "Change in Fund Balance". They do this for every year presented in the table. Consider, that 100% of the figures that are used are wrong. Excerpts from each of FY21, FY22, and FY23:
And while I have previously identified significant issues in terms of finances that the City will need to address, the fact that the Grand Jury so obviously misstates the facts casts doubt on any conclusion they may draw.
The actual General Fund results as assembled from the audited financial statements are as follows:
The above table is inclusive of a prior period adjustment made during the FY22 audit regarding the FY21 year of approximately $52K. FY22 and FY23 reflect receipt of ARPA funds.
When talking about increasing taxes, the Grand Jury had this to say:
The second assertion, that the City has declined to take any revenue enhancement measures, is also false. Back in early 2022, the City conducted a survey regarding potential support for a tax measure in Nov-22. The results of the survey were clear - that residents were satisfied with the quality of life in Clayton, generally not aware of the financial challenges facing the City, and that there was not sufficient support to pass a ballot measure increasing taxes. While it was always the case that the City needed to do more diligence in assessing the situation, the survey results solidified that fact. Rather than pursue a tax measure without all the information, we as a Council have been doing the work over the past two years to determine what is actually needed.
In addition to this information gathering,
- The City has updated its investment policy and engaged a third party for more managed services which should yield higher returns.
- The City has updated its master fee schedule to bring more current the costs associated with providing services for rentals, uses, and administrative services. This included adding a special event fee for larger events that consume more of the City's resources.
- We engaged HDL to assist managing our business license renewal process, including efforts to determine if there were additional businesses operating in the City that required a license in an effort to increase revenue.
- We renegotiated our waste management service agreement with Republic Services to bring us in compliance with new statewide mandates for recycling.
All of these things are revenue enhancement measures and the statement by the Grand Jury is false. While only focusing on raising taxes, the Grand Jury ventures into areas of policy making. This is what the Council was elected to do, not the Grand Jury.
In addition, the Council did take action in 2024 directing staff to work towards a tax measure to be placed on the November 2026 ballot. We did this at our 3.5.24 meeting, the minutes are as follows:
***
On Committee Activity:
In asserting that committees take action without Council approval, the Grand Jury states the following:
As the Negotiation Committee was an Ad Hoc committee, no agendas nor minutes are called for, and this has not been the practice of the City. Given the matter was of public interest, I did publish ongoing information about the negotiation efforts here and here and here and here. I also wrote about it in two local papers, discussed the issue in a townhall, among other avenues. To imply that there was something secret going on is inconsistent with the evidence.
In fact, the offer made was not rejected, it was identified as unchanged from prior discussions and as a result no action was taken. The Ad Hoc Committee invited further discussion but none was offered. Neither the City nor the ad hoc committee heard back after that. The Ad Hoc Committee in fact did not take any action on behalf of the City as a Committee is not authorized to do so. The Grand Jury attempts to equivocate on what constitutes taking action, however, declining to take action to bring something forward is not equivalent to taking action. Otherwise the list of what is declined would be infinite.
Regarding Committees reporting out, the Grand Jury states the following:
The Grand Jury goes on to criticize the move to written Council reports as lacking in transparency. On the contrary, having a written record is far superior than a verbal statement that is unsearchable, and often drifts into matters of no substance or things unrelated to City business.
The Grand Jury does criticize the number of Special Meetings, and how minutes are posted. Often times because of the City's small staff, especially for committee meetings, scheduling has been challenging, and preparing materials timely has been challenging. The decision to agendized something as a Special Meeting or a regular meeting is often made at the staff level in addition to preparing the actual agenda based on prioritization of ongoing demands.
Consider that our last Budget an Audit Committee meeting (4.21.25) was agendized as a Special Meeting. This time and date was known for weeks, however due to staff's work on preparing materials, the information was not published 72 hours in advance - closer to 70 hours. Nevertheless, it contained an agenda item for public comment on non-agenda items, and was treated exactly as a regularly scheduled meeting would be.
I agree that less Special Meetings would be preferable and staff is working towards preparing materials more in advance.
The same is true for minutes. In operation, the Council does not take minutes, nor publish them - that is the role of staff. I and other Councilmembers have encouraged staff to post prominently and timely the minutes of all of our meetings.
***
Regarding the findings:
As I've demonstrated above, the findings identified by the Grand Jury are either factually wrong, misleading, lacking context, or some combination of all three. It is unfortunate that taxpayer dollars were squandered in this effort.
It's also odd the time periods chosen for the review. In conducting any kind of review, the time period in question is typically held constant to give a consistent picture of what is being discussed. In this case, the Grand Jury chose different time periods for different areas of their report. This haphazard approach was taken for a reason that is not provided by the Grand Jury.
Regarding the recommendations:
Given the level of factual errors and omissions, it would be imprudent to base actions upon such poorly crafted recommendations.
