BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Conduct Hearing to Determine Whether Censure Is Appropriate for the Misconduct Substantiated in the December 22, 2023, Executive Summary of Investigative Report #2; Approve Appropriate Action to Take, if Any, in Response to Director Rebecca Eisenberg’s Misconduct; and if Censure Action is Approved, Adopt Resolution of the Santa Clara Valley Water District Providing for the Censure of Director Rebecca Eisenberg.
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RECOMMENDATION:
Recommendation
A. Conduct Hearing to determine whether Censure of Director Rebecca Eisenberg is appropriate for the misconduct substantiated in the December 22, 2023, Executive Summary (Report #2) of Investigation into Allegations Made by Rick Callender, Carlos Orellana and other Employees against Director Rebecca Eisenberg;
B. Determine appropriate action, if any, in response to misconduct (Admonition, Sanction and Censure), if Censure action is approved, adopt Resolution of the Santa Clara Valley Water District Providing for the Censure of Director Rebecca Eisenberg; and
C. Determine whether additional actions are appropriate.
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SUMMARY:
BACKGROUND
In response to memoranda from Rick Callender, Chief Executive Officer, to 2023 Board Chair John Varela in January and February 2023, outlining various complaints from Santa Clara Valley Water District (Valley Water) staff about Director Rebecca Eisenberg’s alleged misconduct, 2023 Chair Varela, with input from the Board Ethics and Conduct Ad Hoc Committee (Committee), determined that an investigation into the alleged allegations was warranted, in accordance with Board Governance Policy Governance Process (GP)-6.11 through GP-6.15.
Since Valley Water’s District Counsel Carlos Orellana was named as a complainant and therefore conflicted, Valley Water engaged Samantha Zutler, Attorney at Law, Burke, Williams, and Sorensen, LLP, to advise regarding handling of the allegations. Through Ms. Zutler, Valley Water retained Camille Hamilton Pating, Attorney at Law, Meyers/Nave (the “Investigators”), to investigate the allegations against Director Rebecca Eisenberg. Simultaneously, Ms. Hamilton Pating investigated allegations made by Director Eisenberg against Valley Water, Rick Callender and John Varela. The investigator determined that no allegations in that investigation were substantiated.
Ms. Hamilton Pating completed her investigation on December 22, 2023. In accordance with Board Governance Policy GP-6.15.3, the 2024 Board Chair Nai Hsueh presented the Executive Summary (Report #2) of Investigation into Allegations Made by Rick Callender, Carlos Orellana and other Employees against Director Rebecca Eisenberg at a Special February 22, 2024, Board Meeting for acceptance. At that same meeting, Director Hsueh presented the Executive Summary (report #1) of the Investigation into Allegations Made by Director Rebecca Eisenberg against Santa Clara Valley Water District, Rick Callender and John Varela. A copy of the February 22, 2024, Board agenda item is included as Attachment 1.
Also at the February 22 meeting, in accordance with Board Governance Policy GP-6.15.3, Chair Hsueh and Director Estremera presented a request for the Board to consider taking official Board actions against Director Rebecca Eisenberg in response to her substantiated misconduct, in the form of Censure, pursuant to
Board Governance Policy GP-6.15.4 and GP-10, or other action as defined in GP-6.8 (Admonition) or GP-6.9 (Sanction).
In addition to Censure, Chair Hsueh and Director Estremera recommended the following actions, pursuant to Board Governance Policy GP-6.3, noting that the “Board has discretion in deciding the actions it may choose to take in response to a complaint.”
1. Remove Director Rebecca Eisenberg from all roles and responsibilities representing the Board and District, including participating on any Board Committees.
District employees should not be subjected to such abusive conduct from anyone, much less from an elected Board Member. It is our responsibility as Board Members to protect District employees. We should prevent Director Eisenberg from any opportunity to continue her abusive conduct against District employees. Restricting her participation on Board Committees will prevent her from any further opportunity to harass our employees.
2. Director Rebecca Eisenberg should not be allowed to be compensated for auditing Board Committee meetings (participating as an observer).
3. Director Rebecca Eisenberg should not receive any approval for future travel expenses to any conferences on behalf of the District.
4. Director Rebecca Eisenberg must attend and participate in appropriate anti-discrimination training within two months as a result of the finding regarding discrimination on the basis of national origin.
5. Director Rebecca Eisenberg should not be allowed to meet with any employees who object to meeting with her.
6. Director Rebecca Eisenberg should not be allowed to request any information directly from employees and must make any such request from a Board Appointed Officer.
If it wishes, the Board can review whether it should return Director Rebecca Eisenberg to serve on committees after at least a year, and only if the Board is satisfied that her conduct during public Board meetings has improved.
FEBRUARY 22, 2024, BOARD ACTION
At the February 22, 2024, Special Meeting, the Board accepted the December 22, 2023, Executive Summary (Report #2) of Investigation into Allegations Made by Rick Callender, Carlos Orellana and other Employees against Director Rebecca Eisenberg, and approved conducting a hearing in accordance with Board Governance Policy GP-6.10.5, to consider actions requested by Directors Hsueh and Estremera.
SUBSTANTIATED ALLEGATIONS
The Investigators substantiated the following allegations:
Allegation #4: Eisenberg’s statement that men “love to build things and use concrete,” and flooding exists because of all the concrete poured by “men engineers” was an act of sex discrimination or discriminatory harassment, as defined by SCVWD policies. Substantiated as Discriminatory Harassment.
Allegation #5: Eisenberg asked Richardson to help prove Callender is “corrupt” and “getting paid for Pacheco” in exchange for Eisenberg helping Richardson’s family “get millions” under a whistleblower law, which was an act of discrimination or discriminatory harassment, or improper direction to staff, as defined by SCVWD policies. Substantiated as Improper Direction to Staff.
Allegation #10: Eisenberg’s statement that she is the only “Non-Boomer on the Board and it shows” was an act of age discrimination or discriminatory harassment, as defined by SCVWD policies. Substantiated as Discriminatory Harassment.
Allegation #12: Eisenberg’s statement to Director Nai Hsueh (“Hsueh”), “English isn’t your first language so I want to make sure you understand,” in a June 30, 2023 Board Policy and Planning Committee (“BPPC”) meeting, was an act of national origin-based discriminatory harassment, as defined by SCVWD policies. Substantiated.
Allegation #15: Eisenberg’s conduct toward Orellana at the December 13, 2022 closed session regarding Baykeeper litigation was an act of race or sex-based discriminatory harassment, or abusive conduct, as defined by SCVWD policies. Substantiated as Abusive Conduct.
Allegation #16: Eisenberg’s conduct toward Orellana during the December 14, 2022 phone call was an act of abusive conduct, as defined by SCVWD policies. Substantiated.
Allegation #17: Eisenberg’s statements to Orellana in a January 20, 2023 email in relation to the Baykeeper litigation was an act of sex or race-based discrimination, abusive conduct, or improper direction to staff, as defined by SCVWD policies. Substantiated as Abusive Conduct and Improper Direction to Staff.
Allegation #25: Eisenberg created a hostile work environment for, or engaged in abusive conduct toward, Callender, in violation of SCVWD policies. Substantiated as Abusive Conduct.
HEARING PROCESS
The Board will use the hearing process approved by the Board in Item 2.3 today for this hearing.
Since the Board accepted the findings in Executive Summary of Investigative Report #2 at the February 22, 2024 meeting, this hearing will be limited to consideration of the action(s) the Board should take in response to the substantiated findings in the report.
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 2).
Admonition or Sanction - Admonition or Sanction requires approval by a simple majority of the Board. Admonition or Sanction do not require a resolution.
POSSIBLE ADDITIONAL ACTIONS
Pursuant to Board Governance Policy GP-12.2, the following actions require approval by a majority of the Board:
1. Removing Director Eisenberg from all roles and responsibilities representing the Board and District, including participation on any Board Committees.
2. Prohibiting Director Eisenberg from receiving any compensation for auditing Board Committee meetings (as an observer).
3. Prohibiting Director Eisenberg from attending any conferences on behalf of the District, and from receiving any approval for travel expenses to any conferences on behalf of the District.
4. Requiring Director Eisenberg attend and participate in appropriate anti-discrimination training within two months as a result of the finding requiring discrimination on the basis of national origin.
5. Prohibiting Director Eisenberg from meeting with any employees who object to meeting with her.
6. Prohibiting Director Eisenberg from requesting information directly from employees. All such requests must be made to a Board Appointed Officer.
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: Board Agenda Item 2.1 (2/22/24 Board Meeting)
Attachment 2: Sample Resolution
*Handout 2.5-A: ALA
*Handout 2.5-B: Bivens
*Handout 2.5-C: Varrett
*Handout 2.5-D: Low-Lee-Kalra
*Handout 2.5-E: Johnson
*Handout 2.5-F: Bautista
*Handout 2.5-G: Marquez
*Handout 2.5-H: Montgomery
*Handout 2.5-I: McDowell
*Handout 2.5-K: Khanna
*Handout 2.5-L: SCC Sheriff Transparency Oversight
*Handout 2.5-M: Khanna
UNCLASSIFIED MANAGER:
Manager
N/A