“CITY COUNCIL CHAMBERS

REASONABLE ACCOMMODATIONS”

SHOULDN’T LOS ALTOS RESIDENTS ALSO BE ENTITLED TO THEM?

LAR originally posted this article September 13. Subsequently, the LAR Steering Committee Members met with Council Member Jeannie Bruins on Sunday, September 15th. Council Member Bruins provided clarification on a few issues. We appreciate Ms. Bruins’ time and her input. We have made the following corrections to this Hot Topic: The Council Meetings were moved early this year to the Los Altos Youth Center (LAYC) Building due to a City Hall renovation project, not as a result of an ADA complaint being filed. Click here for a conflicting report. [We would note that whatever the reason for the move, the City Hall renovations have been completed for some time but Council Meetings have not moved back to City Hall.] Ms. Bruins also stated that the number of Council Members who have filed complaints is officially known to be “more than one.” She also stated that the accommodations for complainants appear to be in direct conflict. This Hot Topic has been edited accordingly.

Backstory

Recently an Americans with Disabilities Act (ADA) complaint was filed by a City Council Member in January 2019 alleging that a health problem is exacerbated by attending Council Meetings in the current City Council Chambers. The City was able to identify and implement a reasonable accommodation for this Council Member. Click here. In April Council Meetings were moved to the Los Altos Youth Center (LAYC) Building because of a City Hall renovation project. See conflicting account here. We note however, that those renovations have been completed for some time but Council Meetings have not moved back to City Hall.   Subsequently other Council Members filed ADA complaints alleging that health problems were exacerbated by conditions in the LAYC Building. (A brief summary of the ADA can be found below along with an explanation of the peculiarities of the Los Altos situation.)  These complaints forced the city to take action to resolve what Ms. Bruins described as requests for “directly conflicting accommodations.” We believe that as the citizens of Los Altos and attendees at City Council meetings, we too will be affected by the ultimate accommodations reached among the Council Members, Staff, the consultant and the attorney. Read more here. Accordingly, we believe we deserve a seat at the negotiating table to make certain our rights are considered. At the very least, we should be able to hear the proceedings, the seating and the temperature should be comfortable, and we should be able to see the Council Members, the media presentations, and the public speakers. Those are the “reasonable accommodations” we expect the City to provide us, the tax-paying, voting citizens.

In the last year, the City spent over $750,000 to upgrade the air conditioning in City Hall. In addition, the City spent around $500,000 to make the lobby and restrooms ADA accessible.  It should be noted that the LAYC Building is in need of major renovations.

The editor of the Palo Alto Daily penned an editorial “Odor complaint sends city into a tizzy” describing the current status and the backstory of this controversy as of Sept 23.

The Investigation

The City has contracted with a Human Resources consultant to investigate the ADA complaints and find a reasonable accommodation for the council members for an initial amount of $40,000. At the August 27, 2019 Council Meeting, the consultant, Rachel Shaw, Shaw HR Consulting, Newbury Park California, advised that she will work with a 3rd party attorney to arrive at the reasonable accommodation. However, the attorney’s fees are not included in her $40,000 contract. No time frame for arriving at a reasonable accommodation was quoted by Ms. Shaw during her presentation. She described her process as one that entailed meeting with the persons involved (who were not specified) in order to arrive at the desired result. Her PowerPoint presentation can be found here. Her press release can be found here.

Ms. Shaw also advised that air quality testing of both facilities would be conducted, and the testing is in progress.  Air quality testing is being conducted by HazMat Docs for $8,325.00.  The tests are for the following agents: non-viable mold (comparison with exterior non-viable mold); 4-phenylcyclohexane; volatile organics (TO15); and an aldehyde profile (acetaldehyde acetone, acrolein, benzaldehyde, butyraldehyde, crotonaldehyde, and formaldehyde). To see the contract click here. The test results for both buildings is now available to the public. To view the Air Quality Testing Results click here.

 The LAYC Building

The first question that comes to mind is why is the LAYC Building an acceptable alternate to Council Chambers?  What is it specifically that makes the LAYC okay to hold Council Meetings in?  The LAYC Building is in need of major renovations. It does not have an air conditioning system.  Persons attending Council Meetings are miserable in the sweltering heat during many months of the year.  Fans and rented portable AC units can be brought in to deal with the heat, but they create collateral damage!  The cost of the portable AC units per meeting is $752.10!  To see the invoice, click here.  With the fans and portable AC units running, attendees cannot hear the proceedings unless each person speaking (Council Members, Staff, Presenters and the Public) speaks loudly and clearly into a functioning microphone.  This doesn’t happen often!  Thus, the entire point of attending a Council Meeting – to learn firsthand what is going on in our city is denied to residents of Los Altos.  This is unacceptable. 

Moreover, many citizens of Los Altos are unable for a variety of reasons (some may be health reasons) to attend Council Meetings in person.  Thus, according to City Council Norms, City Council meetings must be broadcast.

“Norm 8.2: Broadcasting of City Council Meetings. All regular Council meetings and study sessions shall be scheduled in the Community Meeting Chambers to allow for web streaming and simulcast on the City’s Government Access Channel, unless the number of participants exceeds room capacity. The final decision shall be the responsibility of the Mayor. All Council meetings held in the Community Meeting Chambers shall be video-recorded.”

Council Meetings held in the LAYC Building are not available live on Channel 26 and therefore violate this City Norm.  

 Renovation of the LAYC Building has been proposed at Council Meetings going back to at least November 2017 but have not been approved by the City Council.  At the recent June 25, 2019 Council Meeting, Councilmember Jeannie Bruins asked that renovation of the LAYC Building and its use as City Council Chambers be brought back on the agenda by Chris Jordan, City Manager.  The June 25, 2019 agenda item for renovating the LAYC Building can be found here

This proposal was voted down by a 4 to 1 majority of the Councilmembers in favor of deciding on their priorities for the Capital Improvement Program (CIP) and then renovating facilities pursuant to the priority assigned.  City Manager Chris Jordan argued for renovation of the LAYC Building calling it an embarrassment to the City.  Mayor Lee Eng responded to Chris Jordan by noting that yes, the LAYC Building is embarrassing but that the Police Department and Halsey House are embarrassing too and that the Council needs to prioritize the CIP facilities list.  She noted that she found it unacceptable that our police officers are subjected to heat extremes in the Police Department Building.  Moreover, the majority of the Council wanted to finish the new Community Center before they even consider any renovation of the LAYC Building.  (See video of June 25, 2019 Council Meeting). With respect to renovating the LAYC Building, it should be noted that a “reasonable accommodation“ is not what a complainant demands but rather it is an accommodation that reasonably addresses the issue without creating undue hardship.   Is it an undue hardship for the city (we the taxpayers) to spend millions of dollars to renovate the LAYC Building so that it can become the new Council Chambers?  

Transparency

While this ADA investigation goes on we, the residents of Los Altos, want answers to the following questions:

 1. Air Quality Test Results

What are the air quality tests results for each building?  

What happens if no difference is found between the two buildings?

Do the air quality test results show that there is no generalized health issue with respect to air quality and ventilation, i.e., is Council Chambers in compliance with applicable laws and regulations? 

What happens if the test results show the LAYC Building’s air quality is worse than Council Chambers?

Based on the Palo Alto Daily Post articles cited above and here and here, the following questions come to mind:

When exactly did Council Member Bruins file her complaint citing issues with the Council Chambers? [In view of the information that is public, it would appear that Ms. Bruins is the Council Member who filed an ADA complaint in January 2019. Click here and here and here.] When did the other Council Members file their complaints?

What is different about the Council Chambers that may have prompted Bruins’ complaint? Click here. She has been attending Council Meetings in those Chambers for 7 years. Are the other Council Members’ complaints directed to Council Chambers or the LAYC Building?

Does Council Member Bruins’ complaint cite cigarette smoke or the smell of cigarette smoke on clothes worn by an individual who attends Council Meetings?  Click here. This individual has been attending Council Meetings for years, did anything change that may have caused Council Member Bruins to file an ADA complaint?

2.  How Severe are the Council Members’ “disabilities”?

What is the severity of the reaction purportedly caused by attending Council Meetings in Council Chambers? What is the basis of each Council Members’ complaint?

Are there severe breathing difficulties versus a runny nose?  This is important because the reaction must be “sufficient to substantially limit one or more major life activities.” www.dol.gov

3.  Possible Air Quality Mitigation Measures

What mitigation measures have been rejected the Council Members, if any?

What are the consultant’s proposed mitigation measures to improve the air quality in either room?

What are the costs associated with them?

How long will it take to complete the mitigation measures?

4.  Proposed Reasonable Accommodations

What are the accommodations that have been proposed?

Have any of the proposed accommodations been rejected by a Council Member?

What happens if every proposed accommodation is rejected?

5.  LAYC Renovations

What are the plans for renovating the LAYC Building?

If there are any plans for renovating the LAYC Building, what are the projected costs?

6.  City Council Chambers

What changes, if any, need to be made to Council Chambers to mitigate the ADA concerns of the Council Members?

What would the changes to the Council Chambers cost?

How long will it take to mitigate the ADA concerns of affected Council Members?

7. The Shaw Consulting contract and scope of work

Once Rachel Shaw has prepared a report of her conclusions and recommendations, what are the next steps?

What is the time frame for settling these complaints?

8. Who Makes The Final Decision regarding Reasonable Accommodation

If Ms. Shaw and the 3rd party attorney cannot come to an agreed-upon reasonable accommodation with the Council Members who have filed ADA complaints, who makes the final decision that a particular proposed accommodation is reasonable and will be implemented?

What happens if any Council Member rejects the accommodation that is deemed reasonable by the responsible person or body of government?  

What happens if no one accommodation is accepted by all affected Council Members who have filed a complaint?

We asked Council Member Bruins who would make the final decision regarding “reasonable accommodation.” She said that in her opinion, she felt that undue hardship would be equated with the cost of an accommodation. She thinks that if an accommodation is relatively inexpensive, then Staff will implement it and the complainant would be advised of the accommodation for her specific disability. If the accommodation were more expensive but within the threshold of City Manager Chris Jordan’s signing authority, then it’s her opinion that Mr. Jordan would decide whether to implement an accommodation. If, however, the cost of an accommodation exceeds Mr. Jordan’s signing authority, then she thinks the decision would go back to City Council. Needless to say, this seems to be a Catch 22 situation if there ever was one! The same Council Members who filed ADA complaints and whose reasonable accommodations appeared to be in direct conflict from the very beginning according to Ms. Bruins, are now expected to come together and find “reasonable accommodations” that will satisfy each of them!

9. In the meantime…

What is the reason(s) City Manager Chris Jordan has not acted on the direction of 4 of the 5 Council Members to move City Council Meetings back to Council Chambers since the original reason for moving, renovations, is no longer relevant since those renovations have been completed? If the purported reason is that the Meetings cannot be moved back to Council Chambers until the ADA issues are resolved, then who decided that it was more important to “accommodate” a Council Member who had issues with Council Chambers? Why would a Council Member who filed complaints directed at conditions in the LAYC Building be required to attend Council Meetings there and suffer the consequences? How is that fair or legally “reasonable”?

Is there a legal reason he has refused to follow their direction? If yes, what is the legal rationale?

Now Staff has added a stage for the dais. It would appear Mr. Jordan has directed Staff to make changes to the LAYC Building that lead one to believe that City Council Meetings will remain in the LAYC Building rather than return to Council Chambers. Who directed Chris Jordan to do this or did he do it on his own initiative?

To get another perspective about this situation, click here to read an Opinion article in the September 23, 2019 Palo Alto Daily Post. Author David Price provides us with his account of the origins of this ADA saga and a suggestion for accommodating Council Member Bruins.

CALL TO ACTION

 If you are unhappy with the LAYC Building being used for City Council Meetings and want the meetings returned to Council Chambers, email your City Council Members!  If you want live broadcasting of the City Council Meeting on Channel 26 restored, email your City Council Member! 

Lynette Lee Eng, Mayor lleeeng@losaltosca.gov

Jan Pepper, Vice Mayor jpepper@losaltosca.gov

Jeannie Bruins, Councilmember jbruins@losaltosca.gov

Anita Enander, Councilmember aenander@losaltosca.gov

Neysa Fligor, Councilmember nfligor@losaltosca.gov

 

The Americans with Disabilities Act of 1990 – The Los Altos Complaints

The  Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. As it relates to employment,  Title I of the ADA protects the rights of both employees and job seekers.  www.dol.gov

 The Equal Employment Opportunity Commission (EEOC) is the agency that is responsible for enforcing the American Disabilities Act.  According to the EEOC, an employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a reasonable accommodation to perform an essential function … and refuses to accept an effective accommodation, s/he may not be qualified to remain in the job.

 Moreover, per the EEOC:  “An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.”  In fact, a “reasonable accommodation“ is not what a complainant demands but rather it is an accommodation that reasonably addresses the issue without creating undue hardship. Please refer to https://www.eeoc.gov

 In this case, with respect to Council Member Bruins, the City offered an accommodation: Ms. Bruins could use the Redwood room and phone into the Council Meeting.  However, apparently Council Member Bruins rejected that accommodation and prefers to move the Council Meetings to the LAYC Building.  Is it an undue hardship to demand a “reasonable accommodation” that causes the city to spend millions of dollars to renovate the LAYC Building so that it can become the new Council Chambers?  

 There is also the complication in this case that none of the Council Members are “employees” in the sense required of the ADA.  They are elected officials and the law itself does not specifically provide for disputes regarding a reasonable accommodation involving an elected official and there is a paucity of case law on the subject.  

The Council Members were elected to make this kind of decision and they should keep the best interests of their constituents well in mind.  We should definitely be considered. 

Are we to give up our rights as residents of Los Altos to a comfortable Council Chambers (that our taxes paid for) where we can hear the proceedings and where the proceedings can be broadcast live to residents who are unable to attend the Meeting in person?  

We don’t think that is a “reasonable accommodation” for us, the voting, tax-paying residents of Los Altos!  


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