McManis said he’ll seek reimbursement of his attorney’s fees from the city, which are estimated to exceed $1 million.
San Jose’s Little Saigon dispute: Council violated Brown Act, judge rules
Courtesy Barry Do — Pictured is the permanent marker to be unveiled on Saturday designating a Story Road retail area lined with Vietnamese shops as “Little Saigon.”
PUBLISHED: January 5, 2017 at 1:14 pm | UPDATED: January 6, 2017 at 5:57 am
SAN
JOSE — Nearly a decade after a Vietnamese community group took San Jose
to court over claims that elected officials secretly lined up votes in
naming a retail center, a judge agreed that the City Council violated
open meeting laws — and ordered a fix to stop it from happening again.
The
lawsuit, filed in February 2008, claims former Councilwoman Madison
Nguyen privately rallied support from a majority of council members to
name a shopping center “Saigon Business District.” If a council member
privately discusses an issue up for a vote with five of San Jose’s 11
City Council members — a majority — it is considered a violation of the
Ralph M. Brown Act.
The
Brown Act requires a city’s elected leaders to conduct business in open
public meetings, and prohibits a voting majority from meeting secretly
beforehand to line up votes.
The
City Council adopted Nguyen’s plan and voted to name the center Saigon
Business District — a decision that sparked community outrage and led to
an unsuccessful effort to recall Nguyen. Most Vietnamese residents
wanted the Story Road shopping center to be named Little Saigon, which
the city eventually agreed to.
Following
a brief trial last year, Santa Clara County Superior Court Judge
Vincent J. Chiarello this week found that San Jose elected leaders
“inadvertently” violated the Brown Act when recognizing the shopping
center as a Vietnamese retail destination.
And,
the judge added in his 105-page ruling, additional Brown Act violations
are likely to recur because of the City Council’s policy of allowing
members to sign on to memoranda supporting a certain action or decision.
In
this case, the violation occurred after Nguyen had solicited signatures
from four other council members on a November 2007 memo supporting
naming the center Saigon Business District. But Nguyen also discussed
the project in passing with another council member months earlier.
That
means Nguyen had private conversations with a total of five other
council members about the Vietnamese retail district — totaling a
six-member majority — in violation of the Brown Act. Chiarello found the
violation was unintentional and called Nguyen’s decision a “political
miscalculation.”
The judge said the violation occurred when establishing the retail center, not naming it.
Nguyen,
who lost a bid for state Assembly in November to another former council
member, Ash Kalra, said the violation wasn’t intentional and she’s
hoping to put the past behind her.
“It
was just a casual conversation that was mistaken for something else,”
Nguyen said. “It’s the start of a new year and I’m relieved that we can
move on from a decade-long issue.”
But
the San Jose City Council still issues five-signature memos today — a
practice the judge found to be risky. It opens the council up to future
violations because a discussion with one additional council member would
mean a violation.
Mayor
Sam Liccardo, former Vice Mayor Rose Herrera and other council members
admitted to at least three similar Brown Act violations last year.
The
judge ordered the council members to issue written statements saying
they’ve not discussed the issue with a sixth council member — and won’t
have additional conversations — any time they sign on to memos co-signed
by five members.
James
McManis, the attorney for the plaintiffs, the Vietnamese American
Community of Northern California, said the judge’s order requiring
statements is a “big step in the right direction.”
“There
was a lot of backdoor stuff going on with Little Saigon and it’s not
the only time it’s happened,” McManis said. “I’m delighted because I
think it’ll make for better government. The residents of San Jose will
benefit from this.”
Peter
Scheer, former executive director of the First Amendment Coalition,
said the statements are a “creative solution” that should stop future
violations. “It requires the participating council members to make a
representation that they have not crossed and wont cross the line
spelled out in the Brown Act,” he said.
But
San Jose City Attorney Rick Doyle said the statements aren’t needed
because the council members are aware of open government rules.
“It just adds one more thing we need to follow,” Doyle said. “But I think it’s something that will heighten their awareness.”
Doyle
said the council will consider whether to appeal the ruling. McManis
said he’ll seek reimbursement of his attorney’s fees from the city,
which are estimated to exceed $1 million.
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