PIERCE & ANDREW F.

PIERCE
Email: [email protected]
SHEARER
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VIA U.S. MAIL and EMAIL

October 5, 2023

Christopher Jensen
City Attorney, City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Email: [email protected]

Re: Darcy Paul

Dear Mr. Jensen:

We have been retained by former Mayor Darcy Paul in connection with the ongoing
campaign of defamation and intimidation that he has been subjected to by various individuals
associated with the City of Cupertino, namely a political majority on the Cupertino City
Council comprised of Councilmembers J.R. Fruen, Sheila Mohan and Hung Wei. We believe
the activities of these individuals have subjected themselves and the City to potential claims
and we would like to propose a solution that would allow all parties to go about their business
without further animosity or legal disputes.

Factual Background

Darcy Paul was elected to the Cupertino City Council in 2014 and was re-elected in
2018. He served as mayor from December 2017 until December 2018, from December 2020
to December 2021, and from December 2021 to December 2022. Having successfully
completed two terms on City Council, he termed out of office on December 9, 2022.

After his initial election in 2014, Paul became aware of a significant embezzlement
scheme by a former City staff member. Also, during the period he was on the City Council,
it is undisputed that City Staff did not provide the legally required financial reporting. Mayor
Paul, as the citizens’ elected champion, became deeply concerned and, sometimes, frankly,
skeptical about the performance of the city staff. In addition, because of his resident-focused
orientation and stances against unreported lobbying, he became the subject of attacks by
developers and pro-development forces in the City, attacks which have shamefully continued
even after he was termed out of office.

In September 2022, Paul was notified that the Civil Grand Jury wanted to interview
him. He was informed that he was not a target of the investigation. Paul was interviewed on
September 16, 2022. On November 28, 2022, he was notified, on very short notice, that the
Grand Jury wanted to meet with him again. Paul offered to meet during the week of
December 12, but never heard back from the Grand Jury.

Woodside Professional Center • 1733 Woodside Road, Suite 330 • Redwood City, CA 94061
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City Attorney, City of Cupertino Page 2 of 3
Re: Darcy Paul
October 5, 2023

His term on the City Council ended on December 9, 2022. The Civil Grand Jury
Report was adopted subsequent to this, on December 19, 2022. The Grand Jury Report
acknowledges that it came about because of complaints by city staff about Council Members.
This was questionable as a subject for the Grand Jury, as Council Members are elected
officials, and staff disagreeing with them reflects poorly on staff, not the Council. The Grand
Jury Report does acknowledge staff misconduct in such areas as refusing councilmembers’
requests for information, that the City Manager had resigned subsequent to the disclosure of
missing Treasurers’ reports, and that the City Staff’s disregard of its reporting requirements
added to the perception of City Council that the staff were not competently fulfilling their job
responsibilities. The Grand Jury Report also acknowledged that past and present staff were
not able to offer any explanation as to how they had addressed the City’s well-developed
internal audit recommendations.

There were passing assertions in the Report that Darcy Paul, when mayor, directed a
City Staff member to assist him with an event and that on two occasions he allegedly asked
staff to work at charity events that were not part of official City business.

Notably, these rather innocuous “charges” were never brought up during the Grand
Jury interview with Mayor Paul, nor did the Grand Jury question him about or make any
reference in their report to him regarding interference with hiring by the City Manager. None
of the specific findings or recommendations by the Grand Jury relate in any way to the
alleged activities of Mayor Paul.

On February 21, 2023, the Cupertino Council, on a politically motivated 3-2 vote
passed by Councilmembers Fruen, Mohan and Wei, ordered the City Attorney to investigate
and report back on purported violations of the Municipal Code with respect to council-staff and
commissioner-staff relations. In April, Linda Daube contacted Paul to set up a meeting. Paul
was unable to meet during the brief window of time allotted by Daube, who issued her report
less than a week later, even though she had been working on the matter since February.

Even a cursory reading of the Daube Report reveals that she took her brief from the
Council majority to relentlessly and unfairly trash Darcy Paul and others. Her report lacks
any semblance of objectivity – anyone who reads it can see that it lacks credibility.

The matter would have rested there had the City Council not chosen to overstep its
bounds by making a politically motivated and factually unwarranted “reference” to the Santa
Clara County District Attorney for prosecution of Mr. Paul. As you know, the District Attorney
quickly found there was no basis for any action against Mayor Paul. Subsequent to this,
however, certain Councilmembers continued to indicate in public and to the press, falsely and
maliciously, that Mr. Paul had been guilty of a crime. Councilmember J.R. Fruen, told the
Mercury News that the Council had “proof of staff harassment, unlawful interference, and the
creation of a culture of fear by Councilmembers Darcy Paul, Liang Chau and Kitty Moore”
and that, “it is clear to me the reason there is no further criminal investigation taking place is
because these highly inappropriate actions happened too long ago.”

Commissioner Jennifer Shearin has repeatedly posted to NextDoor (1) that there
is “evidence that former Mayor Paul and former Commissioner R. Wang interfered with
the hiring and firing of staff, another Municipal Code violation.”; (2) that there was
City Attorney, City of Cupertino Page 3 of3
Re: Darcy Paul
October 5, 2023

"documented evidence" of interference in the hiring and firing decisions by Mr. Paul and that
there was "documented evidence of malfeasance"; and (3) that "the offenses occurred prior
to six months before he left office." Commissioner Shearin has also falsely stated that the
Grand Jury found that Mayor Paul interfered with the hiring and firing of staff. There is no
such statement in the Grand Jury Report against Mayor Paul.

I am sure you can understand that the City faces legal jeopardy from this ill-conceived
campaign of defamation against Mayor Paul. There is no governmental immunity under
Government Code Section 821.6 where the actions complained of occur after the judicial or
administrative proceeding has been completed. Ogborn v. City ofLancaster, 101 Cal.App.4th
448, 463 (2002); Talmadge v. Los Angeles County, 191 Cal.App.3d 51, 53-55 (1987).

The City knew at the time that the reference to the District Attorney was made that
there was no basis for criminal liability against Darcy Paul. Indeed, one normally would have
thought the City Attorney would be the person to bring such a charge. Reaching out to the
District Attorney was an ill-advised publicity move. Whether or not that action was
privileged , it is clear that the comments made afterwards are not, and the City faces liability
for damage to Mr. Paul 's reputation, and this is a claim that is entirely self-inflicted.

The failures of due process and the blatant political lines along which these
proceedings have occurred not only reflect poorly upon the current governance of the City of
Cupertino, they also create conditions which elevate incompetent browbeating at the expense .
of the work of actual governance, attention to detail and actual accountability. Two actions
must occur in order for Mr. Paul not to pursue legal action. First, the City Council must
acknowledge that it has no evidence, and has never had evidence, of any criminal offense by
Mr. Paul, and it must apologize for the proceedings, statements and insinuations related to
such purported criminal offense. Second and further, the City must make, and must
publicize, clear policy and procedure regarding referrals related to purported criminal
liability of prior elected officials. If these two actions do not occur, my client reserves all
rights and all remedies against the City and the individuals responsible for these completely
unnecessary, damaging, and reckless statements.

Very truly yours,

PIERCE & SHEARER LLP

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Andrew F. Pierce