BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Conduct Hearing to Determine Whether to Censure Director Rebecca Eisenberg for Alleged Misconduct Set Forth in the February 2, 2024, Memorandum from Board Chair Nai Hsueh; If Censure Action is Approved, Adopt Resolution of the Santa Clara Valley Water District Providing for the Censure of Director Eisenberg For Actions of January 29, 2024; and Take Any Other Action the Board Deems Necessary or Appropriate in Response to Director Eisenberg’s Alleged Misconduct.
End
RECOMMENDATION:
Recommendation
A. Conduct Hearing to Determine Whether to Censure Director Rebecca Eisenberg for Alleged Misconduct Set Forth in the February 2, 2024, Memorandum from Board Chair Nai Hsueh;
B. If Censure Action is Approved, Adopt Resolution of the Santa Clara Valley Water District Providing for the Censure of Director Eisenberg FOR ACTIONS OF JANUARY 29, 2024; and
C. Take Any Other Action the Board Deems Necessary or Appropriate in Response to Director Eisenberg’s Alleged Misconduct.
Body
SUMMARY:
BACKGROUND
On January 23, 2023, Chief Executive Officer (CEO) Rick Callender sent a memorandum to 2023 Board Chair Varela outlining various complaints from Santa Clara Valley Water District (Valley Water) staff, including allegations of gender-based harassment and violations of Board Governance Policies, regarding Director Rebecca Eisenberg. CEO Callender sent similar memoranda on January 26, 2023, and January 30, 2023. On February 9, 2023, CEO Callender emailed additional allegations to 2023 Board Chair Varela. On January 24, 2023, a memorandum from Director Rebecca Eisenberg, in which she alleged that Valley Water had discriminated against women, was circulated to the Board.
2023 Board Chair Varela, with input from the Board Ethics and Conduct Ad Hoc Committee, retained the services of Samantha Zutler, Esq. (Burke, Williams & Sorensen, LLP) to assist with investigating the allegations. Through Ms. Zutler, Valley Water retained Camille Hamilton Pating, Meyers/Nave, to investigate allegations by and against Director Rebecca Eisenberg. Ms. Hamilton Pating completed her investigations on December 22, 2024, and the investigations were documented in confidential reports totaling approximately 2,000 pages, including attachments (Confidential Reports).
REMOVAL OF CONFIDENTIAL REPORTS
As set forth in the February 2, 2024, memorandum from CEO Rick Callender to Chair Nai Hsueh and Vice Chair Richard Santos (Attachment 1):
On January 25, 2024, Clerk of the Board Michele King sent an email to all the Board members advising that the Confidential Report was available for them to view and that it could be viewed in her Valley Water office. Per King’s instruction from Board Chair Hsueh and Valley Water special counsel Zutler, no copies were made of the report, and it was not emailed due to its confidential nature. The Confidential Report was marked “Confidential” and attorney-client privileged.
On January 29, 2024, Ms. King received an email receipt indicating that Director Eisenberg had read the January 25, 2024, email. That same day, Director Eisenberg appeared in Ms. King’s office at approximately 1:06 p.m. to review the Confidential Report. Ms. King advised Director Eisenberg that the documents were confidential and she would be unable to print an additional copy for her. When Director Eisenberg asked why the report needed to be viewed on the premises, Ms. King responded that it was at the direction of outside counsel [Zutler] and the Board Chair. Director Eisenberg’s review was delayed since the Confidential Report was being reviewed by Director Keegan at that time.
At approximately 1:24 p.m., Assistant Officer Candice Kwok-Smith escorted Director Eisenberg to the Legal Conference Room in Valley Water’s headquarters and confirmed that the Confidential Report was there for the review. In response to a question from Director Eisenberg, Ms. Kwok-Smith advised her that the report needed to stay in the room.
At approximately 1:29 p.m., Ms. King and Director Keegan thought they heard Director Eisenberg in the Board lounge which is adjacent to Ms. King’s office. Ms. King reports that Director Keegan confirmed it was Director Eisenberg in the Board lounge, and shortly thereafter (1:30 p.m.), Director Eisenberg exited through the Board of Directors’ patio.
At approximately 1:31 p.m., Ms. Kwok-Smith checked the Legal Conference Room and determined that the Confidential report was no longer there. Only binder clips remained on the conference table. CEO Callender was subsequently notified, and Valley Water’s security office was tasked with investigating the matter culminating in the report attached to CEO Callender’s February 2, 2024, memorandum.
This investigation established that Director Rebecca Eisenberg had removed the confidential investigation materials without permission. Among other things, this was established by witness statements, the access report for Director Eisenberg’s badge, and video showing her leaving the Headquarters lobby at approximately 1:28 p.m. with the records through the front door (rather than using the patio door by the Board offices, as usual), and showing her placing the records in the trunk of her car in the parking lot at approximately 1:29 p.m.
Following the investigation, at Board meetings on February 13 and February 22, 2024, Director Eisenberg acknowledged taking the confidential report but contended that she was entitled to do so.
FEBRUARY 13, 2024, BOARD ACTION Based on the CEO’s February 2, 2024, memorandum and pursuant to GP-6.10, on February 2, 2024, Chair Hsueh wrote a memorandum to the Board Ethics and Conduct Ad Hoc Committee asking that it convene to consider whether to recommend that the Board set a Public Hearing to consider whether to censure Director Eisenberg. (Attachment 2.) On February 5, 2024, the Committee met to consider Chair Hsueh’s request and ultimately recommended that the Board set a Public Hearing to consider whether to censure Director Eisenberg. At its regular February 13, 2024, meeting, the Board considered this recommendation and voted to set a public hearing for the censure of Director Eisenberg.
HEARING PROCESS
The Board will use the hearing process approved by the Board in Item 2.3 today for this hearing.
The Board will need to first evaluate whether there is substantial evidence that Director Eisenberg engaged in misconduct as set forth in the February 2, 2024, Memorandum from CEO Callender (Attachment 1). Specifically, the Board will need to consider whether the taking of the documents, which Director Eisenberg has acknowledged, was improper and against Board policies. If the Board makes such a finding, it must then consider what actions the Board should take in response to the misconduct.
POSSIBLE ACTIONS: CENSURE, ADMONITION OR SANCTION
Censure - Censure requires the adoption of a Resolution making findings with respect to the specific charges, based on substantial evidence, and must be approved by two-thirds vote of the Board, per Board Governance Policy GP-6.10.6. A sample resolution is attached (Attachment 3).
Admonition or Sanction - Admonition or Sanction requires approval by a simple majority of the Board. Admonition or Sanction do not require a resolution.
Other Actions - If the Board deems any other actions necessary or appropriate to respond to the alleged misconduct, then, such actions must be approved by four affirmative votes unless an external requirement imposes a higher voting threshold.
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
There are no environmental justice and equity impacts associated with this item.
FINANCIAL IMPACT:
There is no financial impact associated with this item.
CEQA:
The recommended action does not constitute a project under CEQA because it does not have the potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
Attachment 1: 03/02/24 Memo from CEO Callender to Chair Hsueh and Vice Chair Santos
Attachment 2: 03/02/24 Memo from Chair Hsueh to the Board Ethics & Conduct Ad Hoc Committee
Attachment 3: Sample Resolution
UNCLASSIFIED MANAGER:
Manager
N/A