Volunteer says Woodside’s ethics probe violated her constitutional rights

Editor’s note: The Woodside Town Council agreed to a settlement with Nancy Reyering, paying $35,000 to cover her legal fees, on Nov. 14, 2017.

A former longtime volunteer for the town of Woodside has filed a claim against the town and its current and previous mayors, alleging that her constitutional rights to free speech were violated by the way the town handled a complaint that she had violated the town’s ethics code.

In her May 8 claim, Nancy Reyering, who served seven years on the town’s Architectural and Site Review Board, asks that the town repudiate as unconstitutional its months-long investigation over her alleged violations, conduct no such investigations of employees or officials in the future, amend the ethics code so that it no longer inhibits constitutionally protected speech, and reimburse her for over $34,000 in legal expenses.

Ms. Reyering’s claim, in a format suitable for filing in federal court, names as defendants the town and Mayor Tom Livermore and former mayor Deborah Gordon. Asked to comment, Mr. Livermore said he had none, given the pending litigation. Ms. Gordon said she had not seen the claim.

If Ms. Reyering and the town reach a resolution, a federal lawsuit will not be filed, said Jodie Smith, an attorney working for Ms. Reyering along with G. Scott Emblidge of the San Francisco firm Moscone Emblidge & Otis.

The town’s investigation of whether Ms. Reyering had violated the town’s ethics code stemmed from a May 2016 email from Ms. Reyering and addressed to the planning director and two fellow members of the Architectural and Site Review Board regarding a residential design project coming before the board. She noted that the project’s architect was Peter Mason, a member of the Town Council.

She wrote that Mr. Mason “and anyone else in a similar position, has a great responsibility to bring in projects that are reflective of” the residential design guidelines, the general plan and the municipal code. “These projects should not ask for exceptions,” she wrote, asking that the applicant and architect “reconsider some elements of the design.”

Complaints, initiated by former mayor Dave Burow, alleged that Ms. Reyering’s comments violated the town’s ethics code. An investigation, conducted by an outside attorney at a cost of $27,465, resulted in a recommendation that five of nine allegations against Ms. Reyering be sustained: unequal treatment of Mr. Mason, personally attacking Mr. Mason, reaching a conclusion about a project before hearing testimony and before a public meeting had been held, and failing to maintain “a positive and constructive working environment,” as the code requires.

Facing a hearing before the council, which the code requires to determine whether violations had occurred, Ms. Reyering allowed her term on the board to expire in early February and informed the mayor that she would not apply for reappointment.

The council, rather than determining whether violations had occurred, voted 4-0 to follow a recommendation by Mayor Livermore to take “no further action.” Council members Mason, Dave Tanner and Anne Kasten were absent.

Councilman Daniel Yost asked Town Attorney Jean Savaree if the council would violate the ethics code by dropping the matter without making a determination. Ms. Savaree said that while the council had the authority to proceed as the code dictates, since Ms. Reyering was no longer on the review board, the council had no authority to impose sanctions.

In the wake of this incident, Mayor Livermore is assembling a committee of town residents to discuss whether the ethics code should be revised and to make recommendations to the council. The discussions will be facilitated by a consultant from the Markkula Center for Applied Ethics at Santa Clara University.

Rights to free speech

In Ms. Reyering’s 15-page claim against the town, her attorney, Scott Emblidge, makes note of an ethics code provision requiring officials to “refrain from abusive conduct, personal charges or verbal attacks upon the character, motives, ethics or morals of members of the Town Council, other appointed officials, Town employees, or members of the public.”

“While the town’s emphasis on civility may be admirable,” Mr. Emblidge writes, “(it) is the wrong means to the end because it infringes on a speaker’s right to engage in uninhibited, robust debate on public issues, including negative criticism — and even very sharp attacks — of public officials.”

“On its face,” Mr. Emblidge continued, “it would prohibit a town official from remarking on questionable campaign contributions taken by another official (and) would bar council member Jones from suggesting that council member Smith be prohibited from voting on a matter in which council member Smith has a financial interest. … (It) creates an unacceptable risk of the suppression of ideas that are protected as part of a vibrant public discourse.”

Mr. Emblidge also took issue with the provision on maintaining “a positive and constructive working environment.” The town, through its investigator, found Ms. Reyering in violation by “raising concerns about a council member’s possible conflicts of interest,” he wrote. “Anyone with even a passing understanding of the First Amendment would know that it is unlawful to discipline someone for raising concerns about an elected official’s possible conflicts of interest, even if that speech somehow detracted from a ‘positive environment.'”

Despite the code’s requirement that the mayor, upon receipt of an ethics complaint, conduct an investigation and report to the council, Mr. Emblidge asserts that mayors Livermore and Gordon “unlawfully” enforced a code that “violated clearly established constitutional free speech rights of which a reasonable person would have known.”

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