The Cupertino Courier

Mayor John Bautista

Bautista out of diocese decision

By Pam Marino

Mayor John Bautista revealed a conflict of interest Tuesday that will prevent him from casting the swing vote on one of the most controversial developments in Cupertino history.

Earlier this year, Bautista and his wife, Marilyn, entered a lottery to purchase a Menlo Park home being built by the same group that wants to develop the diocese property in the hills of Cupertino. The 178-unit proposal near Rancho San Antonio County Park is currently before the council and faces defeat without Bautista's yes vote.

In May, the Bautistas learned their name had been chosen in the housing lottery, and they placed a deposit on the new home.

The lottery was conducted by an outside auditing firm, and Bautista said he and his wife had a 10 percent chance of winning the drawing. According to Bautista, the couple will pay the full asking price, although he would not say what the price is.

"I think there really is not a conflict," Bautista said. He said he believes that a conflict does not exist under Fair Political Practices Commission (FPPC) regulations, although he conceded that to some it could appear as if there was a conflict. He said he was not given preferential treatment in the lottery, nor was he given a discount. "If anything it was the other way around," he said.

Cupertino City Attorney Charles Kilian said last week that he does believe a conflict of interest exists under what he called common law. His advice to Bautista was to abstain from any votes concerning The O'Brien Group's Cupertino development.

At last week's council meeting, Bautista stayed out of a discussion and vote over continuing the housing project until the next Council meeting on Oct. 6. Kilian questioned whether the council should consider the developer's verbal request to continue the entire matter until after the Nov. 4 election, when Bautista will leave the council.

A council vote taken without Bautista' would likely result in a 2-2 tie, with councilmen Don Burnett and Michael Chang voting for the project and Wally Dean and Lauralee Sorensen voting against it. A tie would mean failure for the proposal.

The Council voted 4-0 to continue the matter until Oct. 6, when a formal request from The O'Brien Group will be considered to hear the project after the election.

As late as last Friday Bautista was refusing to disclose what the conflict of interest was. A Fair Political Practices Commission regulation requires that an elected official disclose any financial interests at the time it is decided that he or she cannot vote.

Gary Huckaby, a spokesman for the FPPC, said it is better for elected officials "to err on the side of caution or prudence" and reveal any potential conflicts of interest.

Kilian said that under common law, which is separate from FPPC regulations, Bautista would not be required to disclose the conflict. However, he said that if Bautista did not disclose, he might be "second guessed" by the FPPC and find himself investigated.

Bautista said yesterday he decided to disclose because he did not want anyone to think he had something to hide.

He said the decision to leave Cupertino came because of a desire of his and his wife's to live closer to work, a paramount concern since the birth of their first child this summer. Bautista works for a Menlo Park law firm and his wife works for a Palo Alto law firm.

Bautista said last week that his reason for taking himself out of deliberations on the diocese project is so that his record can be "squeaky clean" when he runs for higher office in the future.

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