Milpitas Mayor Rich Tran announced on Facebook last week that he intends to call for an independent performance review of City Manager Tom Williams, whose behavior has been the subject of a string of lawsuits in recent years. “Nearly $1 million settlement involved, way too much money,” Tran wrote on Facebook, linking to a Milpitas Post story about the city settling a lawsuit brought by former City Attorney Mike Ogaz. “We will seek the truth and go from there.” Residents weighed in, some defending Williams and others applauding the mayor for championing accountability. But Chris Diaz, the outsourced barrister who replaced Ogaz when the city dispensed with its in-house legal team, urged Tran to proceed with caution in commenting about personnel issues. “[T]he recommended forum to raise any issues regarding performance is in the context of a closed session discussion,” Diaz wrote in a March 6 email. “In fact, the Brown Act specifically authorizes a closed session for performance evaluations.” Putting employees on blast may expose the city and council member to personal liability, Diaz thinks, including the risk of a libel suit. The mayor was unapologetic. In an email to Fly, he said that he won’t be muzzled. “I’m going to give the people the truth,” Tran said, adding that he’ll “continue to post videos, photos, and comments on Facebook.” Diaz also advised the mayor to reserve judgment on development projects until they have a chance to come before the City Council. Tran said that he understands the concerns and that he will take care to follow the law. “At the end of the day,” he said, “I’m going to rock with the residents, every single person whose door I knocked on. … But like any great organization, there will always be those who are against change.”
Below is the email legal counsel Chris Diaz sent to the mayor and council:
Mayor Tran and Honorable City Council:
A few legal issues have come to my attention based on recent Facebook postings. ~I write with some legal guidance to follow when using social media.
I received word that the Mayor posted a Facebook post regarding the Ogaz matter and our City Manager. ~With regard to personnel issues involving any employee that you hire or fire (this would include the City Manager and City Attorney), the recommended forum to raise any issues regarding performance is in the context of a closed session discussion. ~In fact, the Brown Act specifically authorizes a closed session for performance evaluations. ~
The risk with not using the closed session forum, is that any statements you make to the media or on social media, may create on-going issues with the employee, and it may expose the City to liability. ~Finally, it may also expose the individual councilmember who is making the statements to liability, including the risk of a personal libel suit. ~I would strongly recommend that any personnel issues be discussed in a closed session forum and not in any public format, including social media.
Development Projects and Procedural Due Process
As I have mentioned before, it is important to not take any positions on a proposed development project that may be coming before you as a Council. ~This is because under your due process obligations, you should be making your decision on the whole record that comes before you at a Council meeting, including any public comment made by the developer and the public, and you are obligated to remain an impartial decision-maker until the public forum is closed. ~If you do take positions on a development project prior to the Council meeting, you run the risk of having to recuse yourself when the Council actually hears the project. ~This is because you would been deemed to have pre-judged the project violating the public or developerís right to due process and an impartial hearing. ~See, Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483 (public official was deemed to have pre-judged the project and exhibited bias when he authored an opinion piece regarding the negative aspects of the project prior to the matter being heard by the decision-making body).
If you were to participate in a City Council decision on a project which you pre-judged in the media or elsewhere, there is a risk that you would be exposing the City to a lawsuit. ~For any projects that may be coming to the City Council in the future, I do ask that you inform me of any projects you may have taken a position on in the media or via social media so we can research the risk.
One option in lieu of stating an opinion on a project prior to the Council meeting, is you can state such things as “I am in favor of the project in concept, but I reserve my judgement or position until the full Council hearing.”
Also, please keep in mind you are always free to meet with developer applicants, but it is important not to take a position on a project until it is before you at a Council meeting for all of the same reasons noted above.
Finally, for any development project that will come before you as a Council, it is important to avoid attending the Planning Commission hearing when this item is heard. ~This is especially true if you plan to attend to voice any positon on the project at a Planning Commission meeting which should never occur for all of the same reasons noted above.
If you have any questions, please let me know.
Below is Mayor Rich Tran’s response to San Jose Inside’s request for comment:
“I use Facebook as a communication tool for myself and the residents of Milpitas. With one sponsored post, I am able to reach 30k Milpitians (almost half the city). That’s a reach greater than the 20k Milpitas Post Newspaper circulation. It’s how I was elected and it’s how I intend to remain in office to represent the people.
Yes, there are folks in city hall who are concerned about the information I’m providing to the public on Facebook. I remind myself daily that I work for the community. I’m going to give the people the truth and folks appreciate it very much. Sometimes there will be issues that are difficult and during these times I’ll always be fair and balanced in my views.
I’ve had formal discussions with the city attorney and I’m going to continue to post videos, photos, and comments on Facebook to the full extent of the law. We’ve discussed risk management. I express views as an individual and do not express any views of the city council body or city government.
At the end of the day, I’m going to rock with the residents, every single person who’s door I knocked on. I really did not know a single person in city hall until running for office, never been on the council or commission prior. Since becoming mayor, everyone has been welcoming and I feel so much at home in city hall. But like any great organization, there will always be those who are against change.”