December 22, 2005

District attorney joins civil grand jury in investigating Norcal deal

City manager resigns amid scandal; two other department heads also step down

By Sheila Sanchez
Staff Writer

Being careful not to judge San Jose’s Mayor Ron Gonzales’ guilt or innocence in the Norcal Waste Systems deal, the Santa Clara County District Attorney announced Monday that it will work with a civil grand jury to determine if there were any laws broken in the negotiation process.

Last week, the San Jose City Council unanimously censured Mayor Ron Gonzales for not sharing “material facts” related to a secret promise of $11.25 million in payments to Norcal Waste Systems and its subcontractor California Waste Solutions which resulted in a $1.40-a-month garbage rate increase in 2003 for 155,000 households.

In a short press release, Santa Clara County District Attorney George Kennedy said that the Santa Clara County’s Civil Grand Jury’s findings last June, which have been confirmed by an independent investigator, “raise serious questions” about the processes used by the city to enter into a 2000 agreement with the garbage hauler and the 2004 garbage contract amendment, as well as “serious questions” about whether any laws were violated in connection with the transactions.

Because of the confidential nature of grand jury investigations, Kennedy said he could not discuss the details of the investigation.

Gonzales’ response
Immediately, Gonzales’ office issued a statement in response to Kennedy’s announcement saying he respected
the district attorney’s decision to conduct a further investigation into the city’s contract with Norcal.

“Along with my city council colleagues and the community, I look forward to this matter being resolved as soon as practical,” the mayor said.

He also said that because of the probe’s legal nature, he has retained legal counsel and will refer further inquiries to his attorney, Allen Ruby.

“I remain fully committed to serving the people of San Jose for the remainder of my term, and I look forward to continuing our progress to make this city the best it can be for all our residents,” he added.

Gloria Chacon, a spokeswoman for the grand jury, could not confirm nor deny that the body will be working with Kennedy to further investigate the garbage deal. “All communications with the grand jury are confidential,” she said.

Chacon explained the grand jury is the county’s civil investigatory body created for the protection of society and the enforcement of the law. The grand jury has watchdog responsibilities, reviews citizen complaints and criminal investigations.

“We make sure government runs the way it should,” Chacon said. “It’s a civil oversight for the 15 cities within the county.”

Cortese’s request
Last week, San Jose City Councilman David Cortese, who’s running for mayor next year, filed a formal request with the grand jury to take further action against Gonzales in the wake of his Dec. 13 censure hearing.

The request, formally referred to as an “application for accusation,” is essentially seeking a form of civil indictment. The grand jury has the power to determine whether Gonzales engaged in corrupt behavior or willful and unethical misconduct. Such a finding would be referred to Kennedy as a formal accusation. Kennedy would then be required to set the matter for trial. A guilty plea or verdict would result in an indictment by the court resulting in Gonzales being removed from office, much the same way former Mountain View councilman Mario Ambra was ousted from office in 2002.

“This process takes the accusations and allegations out of the political realm and puts it squarely within the jurisdiction of the court,” said Cortese in a prepared press release. “And given the council majority’s refusal to proceed with further investigation, court jurisdiction at this point would be a good thing (welcomed).”

Cortese has said the public deserves to know what, and if any, wrongdoing has taken place, and by whom. He was the first to seek censure of Gonzales and the first to formally call for his resignation.

An independent perspective
“They’re going to look carefully at two investigations that have already occurred,” said San Jose State University political scientist Terry Christensen about Kennedy’s announcement to join the civil grand jury investigation.

Christensen also said Kennedy could begin calling witnesses to testify before the grand jury to supplement written evidence with oral testimony under oath. The written evidence of possible wrongdoing by Gonzales is contained in the more than 14,000 documents independent investigator Chris Scott Graham reviewed, which found the mayor had secretly promised Norcal $11.25 million in payments that resulted in a $1.40-a-month garbage rate increase in 2003 for 155,000 city households.

“This is the better way to proceed with the investigation rather than having the council supervise the investigation,” Christensen said. “Now you have subpoena powers by the grand jury and sworn oath. It’s where it should be, out of the council’s hands and out of the mayor’s hands. Let the district attorney figure what if any charges might be appropriate.”

Cortese said this week it was a “great consolation” that Kennedy and the grand jury will continue to pursue the matter in light of the council majority terminating Graham’s investigation last week.

“That was unacceptable. He was telling us that the investigation was incomplete, that there were lose ends, that there were individuals that he needed to take testimony from … and nevertheless he was terminated,” Cortese said. “It’s not surprising. I forwarded them a letter asking them to pursue the matter.”

Cortese said he doesn’t expect the public to hear results of Kennedy’s and the grand jury’s investigation until the “first quarter” of next year.

About accusations that he’s using the Norcal scandal for political gain, Cortese said the issue is “way bigger than that.”

“I’m not even beginning to try to assess this as a mayoral candidate because when you apply the rules that are used for political campaigns, you could get a completely different analysis than when you apply the rules of what a council member should do today given these circumstances. I made up my mind weeks ago that the way I was going to approach this was as a council member,” he said. “Right now we have a mayor who is really no longer qualified to do the job he was entrusted to do … My duty to the voters as an elected official is to do what I’m doing now.”

Borgsdorf, others resign
In the meantime, San Jose City Manager Del Borgsdorf announced Tuesday he’s “retiring” from his position effective Feb. 3.

In his role as city manager, Borgsdorf is responsible for the daily oversight and management of all city departments, including police, fire, Norman Y. Mineta San Jose International Airport, public works, planning, building and code enforcement, environmental services, San Jose Public Library and others.

Borgsdorf

He has been in public service for nearly four decades. He was hired by the city in September of 1999.

In a Dec. 20 memo addressed to Gonzales and council members, Borgsdorf lists several city accomplishments under his watch and writes that, “ … The political environment has moved from one of partnership and problem solving to one of blame and censure.

“My family and I have reflected upon all of this for the past several months—the good and the challenging, and with their support I have decided to retire both from my position as city manager as well as the profession of city management effective Feb. 3.

“For those who may inquire, ‘Why is Del retiring?’ it is not about recent events such as my evaluation (which was a positive discussion) or the perpetual Norcal investigation (about which the questions to me have been asked and answered). Quite simply, my retirement is a personal decision.”

Borgsdorf came under fire this year after many ethical issues surfaced at City Hall creating a cloud of public mistrust over San Jose government. In particular, he was criticized for his handling of an $8 million Cisco Systems technology contract for the new City Hall, which cost taxpayers an extra $3 million in delays at the new City Hall complex. An independent report into the bungled technology contract implicated Borgsdorf and Deputy City Manager Ed Shikada finding they knew about potential problems in the way the technology contract was about to be awarded to Cisco. He’s also been criticized for not having been more forthright with the council about the Norcal deal.

Chief city planner Stephen M. Haase, director of San Jose’s Department of Planning, Building and Code Enforcement, also announced on Dec. 16 he’s stepping down. And also on Tuesday John Bjurman, the city’s chief information officer, who had only been on the job since July, said he’s leaving his position. Haase’s and Bjurman’s replacements will have to be appointed by the city manager.

David Vossbrink, a spokesman for Gonzales, said about Borgsdorf’s resignation: “Anytime you lose your chief operating officer for a major organization like the city of San Jose is not a good time because it means you have to pick up the serious and important challenge of determining both the short-term and long-term response to filling the position.”

Vossbrink said the mayor, who returned Wednesday evening from a trip to Hattiesburg, Miss., to help with the hurricane relief effort, said he would work with the council in the coming weeks to formulate a plan for the transition and for a permanent selection process. City Hall, however, closes Dec. 23 through Jan. 2.