After deliberations that stretched out over two meetings this week, Milpitas City Council narrowly voted Friday to ask Councilmember Evelyn Chua to apologize for an incident that nearly broke state law and allegedly breached several city codes.
The City Council also asked for more training and improved policy and procedures on handling similar situations and Councilmember Hon Lien walked back the censure process that began earlier this week.
“We have rules for a reason,” said Mayor Carmen Montano at Friday’s meeting. “I feel that it was an honest, honest mistake … We just need to move forward for the good of the city.”
For her part, Chua thought the issue had gone on long enough.
“What happened is already disparaging,” said Chua. “My reputation has been prematurely tainted, and that’s very big to me, because I’ve been in public service for a long time.”
The situation came to light after city documents were released in advance of this Tuesday’s City Council meeting. According to the documents, Chua nearly violated the law by requesting a meeting of the City Council without properly announcing it to the public. Under the California open meetings law known as the Brown Act, meetings of public bodies like city councils must be announced to the public, even if they are held behind closed doors.
In late August, Chua had requested for a staff member to poll the city council to set up an interview with a candidate for city attorney. When the staff member asked whether to involve the city manager, Chua specified that “this is only for elected officials and no staff involved,” according to text messages included in the report.
Even so, the staff member eventually involved City Manager Deanna Santana, who contacted Chua and told her that holding the meeting would be illegal. Chua disagreed, according to an email by Santana included in city documents, though Chua maintained that she “understood what (Santana) said and thanked her.” Following the conversation, Santana announced her two month notice of resignation in an email on August 29, with October 31 as her last day. That same evening, Chua sent an email and text calling off the scheduling of the meeting, saying “I just realized that I think we have to give 24-hour notice,” over email.
In a conversation with this news organization, Chua said that she emphasized confidentiality because there had been leaks during previous interviews, and she wanted to avoid that happening again. She also held that she was polling for a meeting, not scheduling one, since she did not yet know the candidate’s availability.
Chua also maintained that she used the same process with the same staff member to hold meetings as in previous hirings. However, both the interim city manager and the acting city attorney said the process was not the same, and on Friday, Santana noted that per the agreed upon interview process, the city manager was meant to add items to meetings.
The meeting was later officially scheduled, and the incident was reported to the Santa Clara County District Attorney’s Office. “Fortunately the system worked as it should, and the city manager was able to avert the violation,” said Deputy District Attorney John Chase in a letter included in meeting documents. “Had the interviews been conducted in violation of the Brown Act, any subsequent appointment of a new city attorney would have been subject to nullification, and the individual councilmembers potentially subject to criminal persecution.”
Along with the legal near-miss, a staff report from earlier this week found that Chua’s actions violated several city codes, including by directing a staff member without going through the city manager and by improperly calling a meeting.
Earlier this week, the council discussed the allegations and Councilmember Lien announced that she would initiate the censure process against Chua. Even so, Councilmember Garry Barbadillo insisted that more context was needed, and was joined by Councilmember Chua and William Lam to call for a meeting this Friday, which would make public more communication leading up to the incident.
This Friday’s meeting was nearly immediately adjourned, since Barbadillo argued it was better to use the formal censure process to deliberate. In response, Lien rescinded her censure motion and asked for the council to have deliberations there.
Barbadillo and Chua questioned why the report said there were violations when the city council has the ultimate say on violations of city codes. On Tuesday, however, the interim city manager and acting city attorney noted they were obligated to say if they thought city code had been breached. Barbadillo also questioned why the district attorney’s office was involved, though Santana maintained that it was initially unclear whether the law had been broken.
Councilmember Lien argued that given Chua’s time as a public servant, she should have been aware of the potential for a violation of state law.
“We should be leading by example,” said Lien, who maintained that Barbadillo was essentially attempting a cover-up. “It makes us look very bad.”
The state mandates ethics training for elected officials such as city councilmembers, and according to city spokesperson Charmaine Angelo, the City Council has received training on the Brown Act and how to avoid violating it.
“While I believe Councilmember Chua had the best interest of our city at heart, her actions did create confusion, disrupt normal channels of communication and undermined the trust and efficient function of our city hall,” said Councilmember William Lam at the meeting.
He then asked the council to remove the performance reviews for the city manager and the city attorney that had been recommended on Tuesday by Barbadillo after they had produced the report saying that Chua had violated city codes. Montano and Lien joined Lam to pass the move, with Chua and Barbadillo in opposition
“I’m gonna be honest, that was disrespectful … That felt a little like retaliation,” said Montano of the proposed evaluations. “We need to remove that so that there’s no appearance of retaliation.”
Lam also later moved to ask Chua to apologize, as well as for city staff to bring recommendations to bolster trainings and improve policy, which passed narrowly, with Lam and Montano in favor, Barbadillo and Chua abstaining, and Lien in opposition.