BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Consider the Recommendation of the Board Ethics & Conduct Ad Hoc Committee to Set a Public Hearing Within 30 Days on Whether to Censure Director Rebecca Eisenberg Based on Alleged Misconduct Occurring on January 29, 2024.
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RECOMMENDATION:
Recommendation
Consider the recommendation resulting from the February 5, 2024, Board Ethics & Conduct Ad Hoc Committee meeting to set a Public Hearing within 30 days on whether to censure director Rebecca Eisenberg based on alleged misconduct occurring on January 29, 2024.
Body
SUMMARY:
Background
Governance Processes Regarding Requests for Censure
Board Governance Process (GP)-6.10 prescribes the processes for a request for censure by one Board member against another. A full copy of GP-6.10 is attached hereto as Attachment 1.
According to GP-6.10.1,
Any Board member may make a written request for a censure which must be submitted to the [Board Ethics & Conduct Ad Hoc] Committee [(Committee)]. The request must contain specific language descriptive of the alleged misconduct and the reason(s) censure is appropriate. A copy of the request for censure shall be served on the Board member accused of the misconduct by personal service within five (5) business days from the date the Committee receives the written request. The time for service shall be tolled if the Board member is unavailable for service.
Pursuant to GP-6.10.2,
The Committee shall review the request and submit the request to the Board with a recommendation. The Committee’s recommendation shall provide:
6.10.2.1. Further investigation of the request for censure is required; or
6.10.2.2. Admonition or sanction is warranted; or
6.10.2.3. The request for censure should be set for a separate Board public hearing; or
6.10.2.4. No further action is required.
GP-6.10.3 further specifies that “A recommendation by a majority of the Committee shall be based on the Committee’s review of the written record.”
Per GP-6.10.4, the Board may, but is not required to consider whether to direct the Committee to conduct further investigation. If the Board directs the Committee to do so, GP-6.10.4 provides further guidance.
Pursuant to GP-6.10.5,
If a separate Board public hearing is required, it must be scheduled far enough in advance to provide the Board member subject to the charges adequate time to prepare a defense, and that Board member shall be given the opportunity to make an opening and closing statement and to question his or her accusers. The Board member subject to the charges may be represented and may have the representative speak or question on his/her behalf. The Chair or Vice Chair, if the Chair is the subject of the charges, shall preside at the public hearing. The rules of evidence shall not apply to the hearing of the matter, which is not a formal adversarial proceeding. If the District Counsel has assisted Board members in the investigation, independent legal counsel shall provide legal advice to the Board during the hearing of the matter.
Last, GP-6.10.6 provides, “A decision to censure requires the adoption of a resolution making findings with respect to the specific charges, based on substantial evidence and approved by a two-thirds vote of Board.”
The Current Request
On January 29, 2024, an incident occurred in which confidential investigation materials were removed from Valley Water premises. An investigation into the matter by Valley Water Security personnel revealed that Director Rebecca Eisenberg had removed the confidential investigation materials without permission. A copy of a February 2, 2024, memorandum from CEO Rick Callender to Board Chair Nai Hsueh and Vice Chair Richard Santos describing the incident and its effects, and enclosing the internal investigation report, is attached hereto as Attachment 2.
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 Committee asking that it convene to consider whether to recommend that the Board set a Public Hearing to consider whether to censure Director Eisenberg. The Chair’s memorandum was based on the information in CEO Callender’s February 2, 2024, memorandum and based on “the violation of the employees’ legitimate right to privacy and the resulting environment of fear of retaliation by [Director Eisenberg’s] alleged misconduct.” A copy of Chair Hsueh’s memorandum is attached hereto as Attachment 3.
On February 5, 2024, the Committee met to consider Chair Hsueh’s request. Pursuant to GP-6.10.2.3, the Committee recommends that the Board set a Public Hearing to consider whether to censure Director Eisenberg.
Discussion
The purposes of this item are (1) for the Board to discuss whether, based on the information in this Board Agenda Memorandum and its attachments, the Board will set a Public Hearing at which the Board will determine whether to censure Director Eisenberg; and (2) if so, to set the date of that Public Hearing.
This item is not the Public Hearing itself. Therefore, this item is not an opportunity for the Board to discuss whether it should or should not censure Director Eisenberg.
In considering this item, the Board may, but is not required to, direct the Committee to conduct further investigation. If the Board gives such direction, then GP-6.10.4 and 6.10.5 provide further guidance for the Committee, the District Counsel, and the CEO.
If the Board elects to set a Public Hearing on the censure request, then it must be set sufficiently far in advance to allow Director Eisenberg to prepare a defense. Accordingly, the Committee recommends that the Public Hearing be set within 30 days, potentially at the March 12, 2024, regular Board meeting. The Board may also consider setting a special meeting for the Hearing.
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
The recommended action is not subject to environmental justice analysis.
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 a potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
Attachment 1: GP-6.10
Attachment 2: 020224 Memo, CEO Callender
Attachment 3: 020224 Memo, Chair Hsueh
*Handout 5.3-A: Eisenberg
UNCLASSIFIED MANAGER:
Manager
N/A