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20191126_CVRA_GoodmanLetterCity of San Luis Obispo, City Attorney’s Office, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140, slocity.org November 27, 2019 Robert Goodman 114 State Street, Suite 312 Santa Barbara, California 93101 rgoodman11@gmail.com Via: First Class Mail Email: rgoodman11@gmail.com Re: Standstill Agreement Dear Mr. Goodman, Thank you and your expert Mr. Ebenstein for taking the time to talk with the Derek Johnson, Marguerite Leoni and me today regarding the “Notice of Violation of California Voting Rights Act” letter that you served on the City. The conversation was very helpful to our team in understanding your objectives in seeking to transition San Luis Obispo to district elections and will better inform our discussion with the City Council in closed session next week. Likewise, I hope the conversation was informative to you regarding why the City is requesting additional time, without threat of imminent litigation, to consider your proposal thoughtfully. As we discussed, the City and its elected Council have been on a committed path to further our community’s objectives of increased diversity and inclusivity, while supporting broader and more engaged participation in the City’s elections. The City is engaged in current activities in a variety of ways to include broader and more diverse perspectives and peoples in City Government. To that end, we appreciate your agreement to extend, until January 31, 2019, the time period for the City to consider your proposal, evaluate relevant and accurate data, and provide you with some additional information about our community engagement processes already under way, which may assist in discussions of whether there is an alternative path from districting that is better suited to our community. We have enclosed for your consideration a draft standstill agreement that I have executed on behalf of the City and I hope you will be able to execute expeditiously as well. Please let me know as soon as possible if you are proposing any changes to the agreement. Otherwise, I will advise the Council on its alternatives in the context of the January 31, 2019 standstill date. We also noted during our conversation that we had identified some facial errors in the materials you provided in support of your CVRA letter and you asked that we apprise you of any facial or other potentially significant foundational errors we have identified to date, which we agreed to do. First, you failed to identify current Councilmember Erica Stewart as an African American woman and, thus, presumably failed to include her in your analysis of the number and elections success of protected class candidates. Similarly, your materials identify immediate past Councilmember Dan Rivoire as a Latino candidate and, presumably, did include him in your analysis for elections in which he was involved. Mr. Rivoire is not Latino. However, if your client does believe Mr. Rivoire was the Latino-preferred candidate, he obviously was elected to the City Council. Along the same lines, we believe there may be one or more additional misclassifications and omissions, in addition to the failure to mention the several terms a Latino has served as the City’s directly-elected Mayor, but we are in the process of verifying that information and will share it with you if we identify further errors of this nature reflected in your preliminary data. Separate from candidate identification issues, your materials assert the outcomes of several state ballot measures as evidence of racially polarized voting in the City. However, your materials fail to mention that most of the recent measures allegedly favored by Latino voters received majority approval by the City’s voters. We are looking into the more historical measures, which are, of course less probative on issues of racial polarization in voting than the recent contests. Finally, as we discussed the City’s concerns based on our preliminary data analysis regarding the feasibility and effectiveness of district elections to address the Latino voter representational equity concerns raised by your materials, Mr. Ebenstein indicated that the objectives of moving San Luis Obispo to district elections went beyond racial or ethnic concerns. Specifically, Mr. Ebenstein indicated that other objectives your clients seeks to advance through districting included age, gender and socioeconomic diversity among Council candidates and elected officials. One might question whether this is an appropriate use of a CVRA demand letter when the evidence presented to date does not appear to support an assertion of vote dilution of protected racial and ethnic classes. Nevertheless, I indicated that the current Council certainly reflects such multifaceted diversity and has demonstrated an ongoing commitment to understanding the role of City policies and elections structures in advancing that diversity into the future of our community. In fact, the City has numerous initiatives currently underway to facilitate community engagement and/or provide advice to the Council, which I committed to share with you. In April 2019, the Council articulated a vision statement to guide our community budgeting process and directed staff that all decisions in the City were to be analyzed through the lens of diversity and inclusivity. That vision statement Vision Statement for MCG (Found on Page 3) is in the linked budget discussion item: The City of San Luis Obispo is a dynamic community embracing its future while respecting its past with core values of civility, sustainability, diversity, inclusivity, regionalism, partnership, and resiliency. Consistent with that vision, the Council directed funding to its Human Relations Commission to conduct community outreach on diversity and inclusivity issues impacting our community and the most effective role of the City in advancing those objectives. You also indicated that Council compensation is a matter that can significantly impact diversity in running for office and serving as an elected official. We agree. To that end, the Council expanded the membership of its Council Compensation Committee from five to seven members (see 08-20-2019 City Council Staff report amending Council policies and procedures related to CCC) to include a greater diversity of perspectives and community connections leading this community discussion. In October, the Council Compensation Committee discussed its philosophy in reviewing Council compensation (See 10-29-2019 CCC Staff report regarding the objectives of the CCC) asking the following questions: 1. Is there satisfaction with the number and diversity of potential candidates, the quality of the candidates, and/or the likelihood that candidates will run for multiple terms? 2. Would a change in compensation help address item 1, and if so, is it a change in salary, the cost of health insurance, retirement benefits, and/or reimbursement for expenses? 3. What motivates candidates to run for Council? Would that motivation change with a change in compensation? On October 29, 2019, the Committee established its purpose and objectives as follows: Purpose Purpose is to build an effective City Council that is inclusive of all candidates that wish to participate. Objectives 1. Determine if we are currently compensating Council Members and Advisory Body members appropriately. 2. Determine if compensation is a factor in achieving inclusivity? 3. Determine if there is a fiscally responsible way to make adjustments to compensation to achieve the goal. I trust that it is apparent from the above that City leadership and the San Luis Obispo community at large are not only deeply interested in and committed to advancing diversity, inclusivity and good local governance, but have made those objectives an integral part of the City’s planning and budgeting processes and are taking concrete steps to advance our shared values. As we conveyed to you, our community is both unique and uniquely engaged in these issues and I am hopeful that we will be able to reach a mutually agreeable resolution to the issues raised by your letter that support, rather than distract from or derail, the very positive momentum our Council and community have been working so hard to build. We would obviously prefer to focus City human and financial resources toward positive movement on these issues, informed by our community members who are most impacted and best situated to direct our path forward, but I’m sure you understand that the City will feel obligated to proceed through our discussions squarely focused on and prepared to defend the Council’s and the community’s best interests. Once again, I appreciate your willingness to create space for this conversation and we look forward to productive discussion with you and your clients. Please let us know how we can best support a fully informed and fact-based evaluation of any actions you may be requesting of our Council and community. Best regards, J. Christine Dietrick City Attorney City of San Luis Obispo cc: Derek Johnson Teresa Purrington Marguerite Mary Leoni, Esq. City Council Enc: Standstill Agreement __________________________________________________________________________________________________________________ Standstill Agreement Page 1 of 3 STANDSTILL AGREEMENT This Standstill Agreement ("Agreement") is entered into and effective as of November 26, 2019 by and between the California Voting Rights Project and Jamie Gomez (Collectively “CVRP”) and the City of San Luis Obispo (“City”) by and through their respective legal counsel. CVRP and City may also be referred to individually, as a "Party," and collectively, as the "Parties". RECITALS A. WHEREAS, on November 13, 2019, the City received by certified mail a letter from attorney Robert Goodman, alleging that the City's at-large election system violates the California Voting Rights Act of 2001 (Elections Code §§ 14025- 14032) ("CVRA") and advising the City of Jamie Gomez’s intention to seek judicial relief unless the City transitions to a City-based election system for its City Council; B. WHEREAS, under the Elections Code § 10010, CVRP is barred from instituting a civil action against the City under the CVRA for 45 days from the City’s receipt of Mr. Goodman’s letter; C. WHEREAS, the 45-day safe harbor period pursuant to Elections Code section 10010 will expire on December 28, 2019; D. WHEREAS, the City is considering the demands set forth in the November 13 certified letter; E. WHEREAS, the City is considering entering into settlement negotiations with CVRP; F. WHEREAS, the Parties desire to enter into this Standstill Agreement to toll the commencement of any legal action under the CVRA, at least through January 31, 2019 to facilitate the City’s consideration of the demands set forth in the November 13 certified letter and possible settlement negotiations; __________________________________________________________________________________________________________________ Standstill Agreement Page 2 of 3 NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. The above recitals are restated and incorporated as though fully set forth herein. 2. The Parties agree to a standstill of any litigation activity from December 28, 2019 through January 31, 2020 (the "Standstill Period"), to extend the time period during which no action may be commenced under CVRA from the date the City received Mr. Goodman’s letter through January 31, 2019. 3. Nothing in this Agreement shall be construed as an admission by any of the Parties as to the merits or defenses relating to their dispute concerning the CVRA. The Parties agree this Agreement shall not be offered in evidence as an admission of liability, nor shall it be used in any way, including in discovery, as evidence thereof. 4. Each individual signing this Agreement warrants and represents to the other that he/she is duly authorized and fully empowered to enter into and execute this Agreement on behalf of his/her respective client, which will be bound by the terms hereof. 5. This Agreement may be signed in counterpart or duplicate copies, which may be facsimile or email copies, and any signed counterpart or duplicate copy shall be equivalent to a signed original for all purposes. 6. This Agreement and all of its provisions shall inure to the benefit of and be Binding on the Parties and their respective heirs, members, officers, directors, legal representatives, executors, administrators, beneficiaries successors, and assigns. 7. No promise, inducement, or agreement not expressed herein has been made to any of the Parties by any other Party hereto. This Agreement contains all representations and the entire understanding and agreement between the Parties regarding the subject matter of this Agreement unless otherwise expressly stated in this Agreement. This Agreement may not be altered or modified except by a writing signed by the Parties hereto. The terms of this Agreement are contractual in nature and not mere recitals. 8. This Agreement shall be governed and construed in accordance with the laws of the State of California. __________________________________________________________________________________________________________________ Standstill Agreement Page 3 of 3 9. The language in all parts of this Agreement shall be construed as a whole in accordance with its fair meaning, not for or against any Party, and without regard to any statutes, which provide for the language of an agreement to be construed against the drafter. IN WITNESS WHEREOF, the Parties’ respective counsel on behalf of the Parties have caused this Agreement to be duly executed. Dated: ____________ _________________________________________________ CALIFORNIA VOTING RIGHTS PROJECT By: ROBERT GOODMAN, ESQ. Attorneys for CVRP Dated: 11/27/2019 ________________________________________________ CITY OF SAN LUIS OBISPO By: J. CHRISTINE DIETRICK, CITY ATTORNEY MARGUERITE MARY LEONI, ESQ. NIELSEN MERKSAMER PARRINELLO GROSS & LEONI, LLP Attorneys for City