What happened? The long answer that should not be necessary and is completely besides the point.
For those not following the saga of “did Rebecca Eisenberg steal classified [as in national-security-grade] documents?” I wish I could join you. Unfortunately, my colleagues and the CEO whom we are supposed to be overseeing, is committed to nailing me for bringing home a printout of information that is confidential … to me. And now they want to censure me for breaking a rule that did not exist at the time I am alleged to have broken it. It’s boring and besides the point.
This is particularly the case because I never denied bringing home a printout of the investigation of me that Valley Water spent 13 months and $600,000 of taxpayer and ratepayer money creating. I told the District I was taking it. I had the right to take it. I would have preferred the digital file but they wouldn’t give it to me. And they never asked for it back. Why is this an issue?
The District has been using a lot of taxpayer and ratepayer money to distribute nasty lies about me, but in a way I appreciate it. Their unrelenting dedication to putting me in the spotlight has the positive consequence of putting me in the spotlight! I hope to embrace this exciting moment but talking to you about the serious misrepresentations and startling material omissions in Valley Water’s loan application for its EPA WIFIA loans, where it is seeking hundreds of millions of dollars in long-term debt secured by the future revenues of the theoretical Pachedo Dam & Reservoir and also in its application for $500 million in California’s Prop 1 Grant Funds, which already have been disbursed to Valley Water free and clear.
We could talk about whether or not Valley Water lied on loan and grant applications for federal and state public funds, or we can hold a hearing on whether I should be punished for bringing home a printout of an investigation about whether or not I discriminated against men, which apparently is perceived to be a big problem by the men who run Valley Water, especially those with the highest ranking positions and are paid in the high six figures to do their jobs. Which is the Board going to talk about? It’s going to hold a hearing about whether I should be censured for bringing home a printout, of course! That printout, of course, being one of countless copies of the report that the CEO spent $600,000 of public money in trying to prove that I discriminated against him because he is male. Which, despite 13 months of trying, and two lawyers on the project: an independent investigator to conduct the investigation, and an adverse (to me) non-independent lawyer to fix the investigation, the CEO failed to prove. Obviously.
So below is the official statement that my attorney helped me draft about whether or not I brought home the printout. Spoiler alert: I did bring it home. I had a right to bring it home. It’s information was not “classified.” It was in fact “confidential” — as in, confidential to me. And until the Board Chair wrote and distributed a new Board Governance Code provision a few days after I brought it home and stored it in a locked, secure location, it was literally impossible to say that bringing it home violated any rule or code. To this day, Valley Water still has not asked me for it back. One may think that Valley Water wants these 2000 pages to be stored at my home, given the countless opportunities they had to collect it but chose not to. Maybe they want to focus on that in part because that 2000 pages tries really hard to say I say I did something wrong, but all it could, and did, determine, is that I am a woman who tells men that they are wrong when the men are wrong. Hand raised high!
At any rate, here is my statement in response to many (not all — there are too many!) of the things that Valley Water and especially its (known to be corrupt) CEO are saying about me. I apologize for its length as well as its typos, which I know exist but which I won’t be looking for right now because I prefer to work on other things, including but not limited to creating a presentation that consolidates some of the information I collected to help answer the question of whether or not Valley Water has received government funds under false pretenses, and whether it is spending it without legally required transparency, accountability, and honesty.
My statement:
Dear all,
Below is my official response to the accusations made against me regarding “theft” of a print-out.
I am maintaining an integrity set of the investigative reports pursuant to the Brown Act. By way of background:
1. I was elected as a Valley Water director for District 7 in November 2022, and I was sworn in December 2022. In early January 2023, after seeing draft Board committee assignments, I requested that the Board Chair consider gender equity in committee assignments or at least to make transparent how the decisions are being made to assign directors to committees. I suggested that there was significant gender inequity in the proposed assignments. I made the Board aware of these concerns in early January 2023. Although I never requested or sought an “investigation,” the Board initiated an investigation into my concerns, but only in response to the demand for an investigation filed by the CEO and District Counsel filed a few days after I raised my concern. The CEO and District Counsel, who are both Board Appointed Officers that report to me and the rest of the Board, based their complaints only on their own claims and no claims from staff. They accused me of gender discrimination.
2. The secretive “Ethics Committee” then met without public notice or agenda, in violation of the Brown Act, and voted to use public funds to investigate me, even though the only complainants were Board Appointed Officers, and the Governance Codes did not authorize public funds to be used for investigations of Board Directors made by Board-Appointed Officers. It only authorized investigations in response to “staff” or community members. My predecessor’s investigation was based on 20 complaints made by staff and community members. (Months after authorizing the investigation of me, the CEO and Chair attempted to change the Governance Code to cover Board-Appointed Officers.)
3. The Board never voted on whether to use public funds for this investigation, as in previous investigations against Board Directors, including the investigation of my predecessor. Also, unlike past practice, I was not given an opportunity to speak on my behalf the Committee (or Board) made its decision.
4. The “Ethics Committee,” again outside of public purview or notice to me, retained Samantha Zutler, of Burke Williams and Sorenson, who confirmed that her firm was engaged to “serve[] as outside counsel for the Water District regarding complaints by and against Director Eisenberg.” During the course of this investigation, Ms. Zutler treated me as if she were adverse to me, communicating only with my counsel and not with me directly.
5. Ms. Zutler then hired to Camille Pating of the law firm Meyers Nave to conduct the “independent investigation” at Ms. Zutler’s direction. In all previous investigations, the outside investigator had worked directly with the Board. In this instance, the investigation was handled by an attorney who admitted she was, and was, adverse to me. Additionally, I was told that Ms. Pating was being paid out of Ms. Zutler’s budget, and that Ms. Zutler was responsible to confirming that the investigation met Ms. Zutler’s needs. These facts compromised the independence of the investigation from its inception.
6. The investigation also had irregularities in the way it was conducted. From its start there were problems with the integrity and independence of the investigation. For example, the investigator Ms. Pating had not been briefed on the matter I had raised before the CEO launched his investigation against me: material lack of gender equity in Committee Assignments (which the Chair admitted). My attorney and I had to explain to the investigator that the “allegations” against me all arose after the time that I raised the gender equity before the public and the Board.
7. [DELETION DEMANDED BY SAMANTHA ZUTLER]
8. [DELETION DEMANDED BY SAMANTHA ZUTLER]
9. During the course of this 13-month investigation, the CEO has bullied me and bullied staff. From the beginning, staff and employees contacted me to state their support of me and ask me for protection from the CEO, often providing lengthy person experiences of malevolent actions taken against them and others by the CEO. Staff talked to me conditions of strict anonymity, even though under the law and practice they are entitled to speak to me as their elected official. They required anonymity because the CEO has a record of firing staff and employees when they are judged to be “disloyal.”
10. When the CEO heard that staff had been contacting me, he demanded to know which employees had contacted me, which I denied. In a meeting, he told me he had a “right” to know which employees complained, and I told him he did not. He then initiated a new rule amongst all employees and staff that they were not allowed to speak with me, denying then their Constitutional right to speak with their elected officials. In apparent pursuit of the names of the staff who had spoken with me, the CEO through a representative filed a public records request demanding “all email and texts” (official or not) of mine. The CEO then used ratepayer funds to create a propaganda campaign internally and with the press, claiming that I was not complying with public records requests. Every day, one of his staff members contacted to me to obtain my personal phone. Despite the bullying, I protected the identity of these staff members, whom I will continue to protect, knowing the risk they face should the CEO learn their identities.
11. In April 2023, I participated in an initial interview with the investigators regarding the complaints. In July 2023, when the rest of the Board was given vacation, I participated in almost 30 hours of multiple follow-up interviews with Ms. Pating and her team from Meyers Nave. Ms. Pating advised me that her work was completed in late August 2023. Ms. Pating assured me and my counsel that even though the investigation would be submitted to Ms. Zutler, that Ms. Zutler would make no changes to it, and it would be delivered in the investigator’s original form as is standard practice.
12. Ms. Pating also advised me, upon the conclusion of our interviews, that the only two complainants were the CEO Rick Callender and the District Counsel Carlos Orellana, both of whom are Board Appointed Officers and thus were excluded from the Governance Codes upon which this investigation was based and paid for using ratepayer funds. At no point was I ever asked to respond to any complaint made by a staff member or an employee — only by Board Appointed Officers, who enjoy special privileges and benefits (including high six-figure salaries) and who report directly to the Board, including me.
13. Despite the investigator Ms. Pating’s assurance that her work had concluded in late August, in September 2023, after she had completed her work, Ms. Zutler notified the Board that the investigative reports were delayed because of additional allegations. Having been informed that the investigation was complete, I was not notified of any purported additional charges, nor was I given an opportunity to respond as is required in an independent investigation.
14. When September and October 2023 passed without the release of any report(s), my counsel reached out to the investigator Ms. Pating in mid-November to check on the status of the investigation and to provide examples from mid-September of continuing harassment against me, including the CEO and Chair raising their voice at me several times in public meetings; the CEO angrily dismissing staff from public meetings with me; the CEO and Chair distributing anonymous ad hominem personal attacks on me; and other incidents, the investigator Ms. Pating responded that the investigation “has concluded, so I won’t be able to add new allegations from Director Eisenberg at this time.”
15. Even though we were told that the investigative reports were completed in December 2023, they were not made available to the Board until January 29, 2024. In past and common practice, a digital copy of the executive summary is distributed to the Board, all of whom are bound by strict requirements of confidentiality. For this investigation, however, I was advised that no digital copy would be made available because the reports were still in “draft” rather than final form. When asked, Ms. Zutler, who had originally received the investigator’s report in September 2023, admitted that the report was “draft” because changes still were being made, including, if necessary, changes to the identities of witnesses.
16. Because the reports were in the process of being changed, I was advised that Valley Water would only make one physical copy for the directors to review, and that the review was only being made available to one director at a time. I asked the clerk Michele King, a Board Appointed Officer, who reports to me and the rest of the Board, to please provide me with a digital copy pursuant to past practice. Ms. King objected. I then asked her if she had possession of the digital file, and she confirmed that she did. I asked her to print another copy so that I could review in privacy and with my attorney. Ms. King instructed me that she did not have time to print another copy. She also told me that I do not have the right to show the report to my attorney, even though I do have that right. I told her that without a digital file, I may be required to take home the copy she had already printed, and she could print another copy when she had time. With that said, I left her office to review the print-out of the report.
17. When I arrived at the private room where that print-out of the report was available, I saw that the print-out was thousands of pages long, and therefore I could not complete a comprehensive review in a single sitting. I also observed that, even though I was the purported subject of the investigation, I was not the first person to have access to it. It was dated December 22, 2023. Given the irregularities in the process, the closed sessions, the inconsistencies between what the investigator stated and what the District’s counsel was reporting as the scope and status of the investigation, I believed and still believe in good faith that consistent with the Brown Act, an integrity copy of the report is necessary to provide a record of a version absent future changes.
18. It creates the perception of tampering that Ms. Zutler, a non-independent intermediary, spent four months with the investigative report before approving it for distribution to the Board. In the past, independent investigators reported to the Board without intervention. It also is unknown why, although the investigation was completed by August 2023, and draft reports were clearly provided to Ms. Zutler by September 2023, the report was not marked “complete” by the investigator on December 22, 2023, following which it was not made available for viewing until a month later. During that month after it was submitted by Ms. Zutler and delivered to the Board, additional changes may have been made, especially since Ms. Zutler admits that changes continue to be made to the investigator’s report, presumably without the investigator’s input.
19. In a series of communications about a “New” investigations process, the Chair, the Clerk, and Ms. Zutler all confirmed that what was distributed was a draft and that it was subject to change. For these reasons, it was essential that I had access to print-out before it was modified again.
20. I maintain that my actions as an elected director were and are reasonable under the circumstances. I had told the Clerk I needed a print-out, and making printouts is part of her job. The Clerk confirmed she had the digital file and thus she can print more copies. When I left with the report, I left through the front door because it was the door closest to the room where they had placed me to view the report and I had nothing to hide. I returned through the secure Directors’ door to collect my belongings and notify the clerk, who was not in her office when I returned through the restricted Board area. When I arrived home, I immediately placed the report and all its supporting documents in a secure, locked location. I still have not reviewed it, and I have shared none of it with any other person. I have strictly adhered to the confidentiality in which it was transmitted to the directors. I even have not shared it with my attorney, based on the District’s demand that I not do so. To the extent I will be asked to vote on anything at the Board Meeting on February 13, 2024, I am forced to vote without the advice of my counsel, which violates my rights and harms my interests. Worse, it undermines the public’s trust in our institutional safeguards and process, which the ratepayers and taxpayers fund and by extension, to whom we answer as stewards of their trust and public monies.
21. I never — even today — was asked by anyone at the District to return the printout I took home, so I rationally concluded that the clerk printed another copy as was in her power. When I appeared at the District for an event a few days after I had taken the print-out home, I communicated with several of my colleagues, none of them asked me to return the print-out. I first learned that the District wanted it back when a writer from a post in a San Jose news gossip website on whose Board the CEO used to sit, and to whom the CEO has made using public funds, significant donations of at least $10,000.
22. In the meantime, I still have not been able to show the printout to my counsel. When my counsel continued to contact Ms. Zutler to inquire as to when she would be allowed to review and what portions of the executive summary and reports would be made available for her review, Ms. Zutler responded that my counsel and other parties/witnesses who were represented by counsel in this investigation would not get copies until the Board approved its release and that only executive summaries would be made available. Ms. Zutler’s decision is knowingly requiring me to decide whether to approve a report about me without the advice of my counsel whom I hired to defend me.
23. Worse, Ms. Zutler continued to insist to my counsel that the reason that my counsel cannot see the investigation of me is that it is still being changed and is subject to “further edits.” These “edits,” she said, may include clerical or ministerial changes such as if the report cited the name of a witness/interviewee incorrectly. In this way, Ms. Zutler admitted that she can make material changes to the reports completed by the independent investigator which destroy its independence.
24. These facts and the sequence of these events give rise to a strong inference that the law firm Meyers Nave retained to perform the investigation has been working on behalf of the complainants and were not independent. This inference is also supported by the fact that Ms. Zutler held the report and investigation in her hands for 5 months after receiving it from Ms. Pating, and for a month and a half since its completion date signed by Ms. Pating of December 22, 2023. As such, it is reasonable to conclude that Ms. Zutler continued to provide direction regarding disclosure and substance of the investigative reports without any transparency to the Valley Water directors, to achieve results favorable to its client Valley Water. The lack of transparency is wholly inconsistent with the Brown Act. Without an integrity set of the investigative reports and executive summaries, Valley Water’s outside counsel could conceivably continue to edit and revise the reports without the directors’ and the public’s knowledge.
25. During this entire time, no one at Valley Water, including the Chair, CEO, or other Board members, asked me why I took the printout, nor did they ask for its return. Nonetheless, the CEO began another publicly funded campaign of propaganda against me, alerting the press and all employees, staff, and the public falsely that I had “stolen classified documents.” His representatives spread this false statement throughout the community, including to Palestinian activist groups such as CAIR.
26. The CEO also directed staff to harass me and my family at my home in Palo Alto. On February 7, 2023, after both of my children were in bed asleep, at approximately 9.30 PM, a District employee came to my home and began ringing my doorbell. Rather than ringing once and waiting, he rang continuously. When I opened the door, I asked if he was a “Process Server,” an individual who is paid to deliver official notices, usually involving that a person is being sued. He said that yes, he is a process server. I asked him to wait while I could call my partner, and could he please stop ringing the bell so I could use the phone. He did not stop ringing the bell. It took me five minutes to get in touch with my partner, during which time both of my children were awoken. One of my children is an athlete and had to wake up at 4 am for workouts. The other of my children is attending college, working at an internship, and is also on the autism spectrum, so loud noises like continual doorbell ringing causes her considerable discomfort and distress. With my daughter experiencing physical pain from the constant noise, and her asking me to call the police, and my two dogs barking, I went back to the door. I was also prepared to give back the print-out I had taken home. Instead of being asked for the print-out, the Valley Water representative handed me a packet of papers including an investigation on whether I “stole” the print-out I had been prepared to give back. Although the “investigator” interviewed approximately a dozen people and spent time and money on accessing security camera footage, the investigator did not interview me. I asked the Valley Water representative if he needed a signature, and he declined. I asked him if he needed anything from me, and he said no. He walked back to his car, and I left the print-out in its safe and secure location. Given that the representative took no signature, and asked nothing from me, he could have emailed the file rather than come to my home in the dark without notice or permission.
27. The following day February 8th, I received a phone call from Detective Sahnic from the San Jose Police Department. I told him that I had a right to the documents, that I took a print-out of infinite printouts, maintained its confidentiality, that I have kept it secure and shared it with no one, and, importantly, that no one asked for them back, not even the night before when Valley Water sent a representative to my house and woke my kids with his 10 minutes of doorbell ringing. The detective informed me that he would submit his completed report to the Office of the District Attorney, and the DA’s Office would decide. I submit that a recusal would be appropriate given that the DA Jeffrey Rosen strongly backed my predecessor, whom I beat in his re-election campaign.
28. For these reasons, I stand on the fact that I took home a print-out to which I was entitled. I never was asked for it back. Even under the Chair’s analysis, she did not conclude that I violated any code or rule. The District made a false police report for flagrantly political reasons — indeed, the District has not and cannot articulate any violation of Board ethics or other authority that requires that directors be confined in a room to review a report that is for directors’ eyes only. The very worst that the District could claim is that I took home a print-out, and the most they could ask for is that I bring it back or reimburse them for the costs of printing. They did not ask for it back. I am happy to reimburse them for the costs of printing, through my District Budget as a Board Director. No harm was alleged, and no harm has occurred.
29. As to the ironic contention that I would intimidate staff members by having their witness accounts, I respond as follows: (A) The investigator Ms. Pating stated multiple times that the only complainants were the CEO and District Counsel, so there should be no staff witness accounts. (B) If there are staff complaints, they all were added after the investigator told me she was completed, and I was never told about them or given an opportunity to respond to them. They cannot be considered part of the independent investigation, so they are to be disregarded. © There never has been any contention or complaint from staff that I intimidate them or abuse them. (D) Rather, for 14 months, and still today, staff have continuously reached out to me for protection from the CEO’s hostile intimidation and arbitrary firing decisions.
30. I have living proof of the types of hostility that the CEO inflicts on those with whom he disagrees or, potentially, views as a threat to his authority. From the time that the CEO demanded the investigation against me, I have faced a barrage of different forms of harassment and exclusion from the CEO and certain colleagues on the Board. In addition to the 13-month inappropriate and unauthorized $600,000 investigation against me, the former Board Chair also rescinded his previous invitation to me to participate in a trip to meet with congressional leaders in Washington DC. He also “prohibited” me from speaking at press events. The CEO continues to warn all employees, most or all of whom are constituents, that they will face employment discipline if they speak with me. Additionally, the CEO insists on attending all scheduled meetings I have with staff, often interrupting these meetings with his emotional outbursts and accusations. The CEO does not attend and interrupt my colleague’s meetings with staff in such an unwelcome and offensive way. The CEO continues to direct his representatives to distribute inflammatory false accusations of me. The most recent of these accusations was sent to a broad group that included several activists from Palestinian activist organizations, creating a presumption that his problems with me may include my religious status as a Jewish woman.
31. It is known that CEO, not I, is considered an “autocratic tyrant” and “narcissist” who has “created a culture of terror” at Valley Water. Many of those allegations appeared in the investigation report of Director Kremen last year (where the CEO allegedly turned a blind eye on employees, even as they broke down in tears), and in the investigation that the CEO launched against Directors Keegan and LeZotte, claiming that they were racist for voting against his appointment as CEO. In that investigation, for example, the CEO alleged that it was racist for these female Board Directors to have mentioned the CEO’s conviction of a violent crime. The investigator concluded that their mentioning of the felony record was not racist because of its truth. There is ample evidence in the record of the CEO’s well-established retaliation and retribution, his temper tantrums in public meetings, his misappropriation of public funds to pay for retaliatory investigations against political foes, his dismissal of staff for no reason, and his combative and defensive tone. This evidence exists even though Valley Water illegally expunged 10 years of the CEO’s employment records from the official file, including the settlement he reached with the District when the CEO sued the woman whom he had sexually harassed, and the investigative report that recommended that the CEO be fired years ago.
32. Given that the CEO has, for more than a year, threatened employees that he would fire them or otherwise sanction if they speak with me, it is highly unlikely that any staff would have the opportunity to fear interaction with me because they have little beyond the ones who contact me anonymously — not to mention that the CEO, not I, has the power to make firing decisions. If I had any power in this organization, I would have replaced the CEO, would have stopped the unauthorized and inappropriate use of public funds to wage a campaign of propaganda against me, and would have stopped all work on the egregiously expensive, environmentally devastating, and irreparably destructive to indigenous ancient artifacts Pacheco Dam.
33. I mention the CEO’s retaliatory actions and the statements made about the culture he creates not to disparage the CEO, but rather to counter his claim that it is I who somehow have access to his power to fire people, to control the conditions under which his staff work, or to otherwise harm the staff in the ways he has been described as doing. It is irrational to think that I, the newest Board Director who sits on the fewest committees and who is not allowed to interact with staff, could somehow impact their employment, rather than the person who impacts it directly, their ultimate boss the CEO. Because he opened the door to these allegations, I must respond to them with the truth.
34. The District stated that it spent almost $600,000 on its investigation — an investigation I never asked for or believed had merit or justification.
35. I stand by my actions. I have no regrets about standing up for myself, standing up for employees, including the three labor unions at Valley Water, and standing up for my constituents, who elected me for this very purpose: to expose and rid this $10 billion agency of corruption, harassment, and misappropriation of ratepayer and taxpayer funds.
Sincerely,
Rebecca Eisenberg
Director, District 7
Santa Clara Valley Water District
