By Teresa O’Neill
For the last few weeks, I have been reading with great surprise the details of the 49ers’ proposal to settle their lawsuits against the City of Santa Clara. Why am I surprised?
Violation of Closed Session Discussion
First and foremost, legal settlement discussions should happen in closed sessions. As a former Council member and member of a number of other governing boards, I have been part of hundreds of these meetings. For obvious reasons, the City doesn’t want its legal strategy discussed in open sessions where legal opponents may learn of it. The fact that details of the 49ers’ offer have made their way to news reporters is a violation of closed session rules and state law if a Council member is found responsible.
Equally concerning to me are reports that the pro-49er Council majority meets with the team regularly and has discussed the team’s lawsuits against the City, according to their published calendars. However, they refuse to share the details of those meetings with our City staff, the people responsible for representing Santa Clara residents against lawsuits. Councilmember Suds Jain even told City staff that he considered his conversations with the team “confidential.” If a Councilmember’s first duty lis to protect the City’s interests, this activity is unacceptable.
Unproven Settlement Numbers
Second, almost all news reports of the 49er’s settlement offer assume the team’s numbers are accurate and honest. But one of the reasons the City has been at odds with the 49ers is because they refuse to share their accounting of stadium operations as required by our agreements.
A good example of how the team can easily manipulate numbers is demonstrated by their payment of performance rent to the City. From 2014-17, the team paid the City $2.4-2.5 million annually. The team would not disclose how this amount was calculated or demonstrate if it was accurate. Since 2018 (before the pandemic), the team has paid the City zero in performance rent and has projected that they won’t pay anything through 2024, a total of six years. Coincidentally, 2018 was the year that the City stopped the team from reducing its own rent and was awarded an extra $10 million from an arbiter.
Today, it’s irresponsible for anyone to believe the 49ers’ settlement numbers without evidence. This is particularly true for Council members. But if public quotes are to be believed, some of them do. Santa Clara residents should not just be disappointed but alarmed.
Potential Conflicts of Interest
Third, Council members clearly have a close relationship with the 49ers. Some of them may even have a legal conflict. Council members Raj Chahal and Karen Hardy are currently being investigated by the California Fair Political Practices Commission for “passes” they received to attend a Monday Night Football game at Levi’s Stadium. Their defense is that they were there to view operations. But the visit was never authorized by the City or the Stadium Authority. While it would be fair to wait for the investigation to conclude before determining if they violated any laws, it’s clear that an ethical cloud hangs over them. Yet, when they were asked to recuse themselves on this settlement issue by numerous residents last week, they refused.
Other Council members also have a close relationship with the 49ers, which calls into question their objectivity. Jain, Anthony Becker, and Kevin Park were elected when 49er CEO Jed York spent an unprecedented $3 million to support them. While this was legal, the amount of money raises serious questions about what York expects in return and what these three are willing to do if he makes demands.
How to Move Forward
While I am concerned about the public reports of the 49ers settlement offer and am skeptical about the accuracy of the numbers, I do not oppose the idea of settlement – as long as it’s a good deal for the City.
Unfortunately, with closed session discussions becoming public, unproven numbers, and conflicts of interest, I cannot trust that the current process will yield an honest or positive result. I know many Santa Clarans share my concerns.
So, I suggest that the settlement should be presented in an open session and evaluated by independent third-party experts. This transparency will assure the public that the settlement will be good for Santa Clara and not a gift or payback to the team.
After public discussion with an opportunity to hear from residents, the City Council may use a closed session to discuss legal strategy or to craft a counteroffer.
This process is similar to that followed by the City in 2009-10 to evaluate the possibility of building the stadium. There were dozens of public meetings over many months. I don’t believe that amount of time will be necessary for this issue. But I do believe that some public review and discussion is necessary if the public is to trust that this is a good deal for Santa Clara.
A few days ago, the 49ers issued a public “take it or leave it” statement about their settlement offer. While that timeline may serve their interests, it does not serve our City. Our City Council should say “no” to the team’s demand and “yes” to a transparent process that Santa Clarans can trust. It’s in their interest and that of our residents to do this right. This is probably our only chance to get a fair resolution for the residents of Santa Clara who have sacrificed to have Levi’s Stadium in our community.
Editor’s Note: Teresa O’Neill served on the Santa Clara City Council from 2012-20.