Staff report. PC Discipline
PREPARED BY: Gabrielle Whelan
Town Attorney
Reviewed by: Town Manager and Town Attorney
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 02/15/2023 ITEM NO: 1
DATE: February 10, 2023
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Accept Recommendation of Censure of, and Counseling for, a Planning
Commissioner Regarding Communication to the California Department of
Housing and Community Development or Take Other Action
RECOMMENDATION:
Accept recommendation of censure of, and counseling for, a Planning Commissioner regarding
communication to the California Department of Housing and Community Development or take
other action.
BACKGROUND:
The Town has received a number of complaints (Attachment 1) regarding a letter sent by a
Planning Commissioner to the State Department of Housing and Community Development
(“HCD”). The letter asked whether HCD was aware that there was a referendum of portions of
the Town’s General Plan, stated that the referendum proponents were “rich white men,” and
asked for HCD’s assistance.
When the Town receives complaints regarding Commissioner conduct, the Town applies its
Code of Conduct (Attachment 2). Pursuant to the Code of Conduct, an evaluation committee
consisting of the Mayor, Vice Mayor, Town Manager, and Town Attorney met to review the
complaints and recommend a course of action.
DISCUSSION:
The primary questions raised by the complaints were whether:
1) The Planning Commissioner has a conflict of interest affecting her ability to serve as
a Planning Commissioner;
PAGE 2 OF 3 SUBJECT: Complaints Re: Planning Commissioner Letter to HCD DATE: February 10, 2023
DISCUSSION (continued):
2) The Planning Commissioner exhibited bias which will affect her ability to vote on
Housing Element amendments in the future; and
3) There was a violation of the Town Council’s Code of Conduct (which also applies to
Commissioners).
The evaluation committee determined that there is no conflict of interest because neither she
nor her employer financially benefit from housing development in Los Gatos. The evaluation
committee also determined that Procedural Due Process will not preclude the Commissioner
from voting on future Housing Element amendments. Procedural Due Process principles
prohibit public officials from exhibiting bias or pre-judgment before making a “quasi-judicial”
decision. The Town’s Housing Element is a legislative rather than a “quasi-judicial” decision.
Commissioners are free to express opinions on general policy matters such as housing or
legislative matters such as the Housing Element.
The evaluation committee did conclude that there was a violation of the Town’s Code of
Conduct in that the proponents of the referendum were described by race and socio-economic
status. This violates the Code of Conduct’s requirement for “constructive communication.”
The letter was also inconsistent with the Planning Commissioner Handbook’s admonitions to:
be considerate of “all interests, attitudes, and differences of opinion,” “observe the appearance
as well as the principle of impartiality,” and “treat everyone with respect and dignity,”
Despite this violation of the Code of Conduct, the evaluation committee recognized that
Commissioner Clark is prepared and participates actively in her responsibilities as a Planning
Commissioner and noted that this is the first time she has violated the Town’s Code of Conduct.
For those reasons, the review committee has concluded unanimously that removal from the
Planning Commission is not warranted.
CONCLUSION:
The evaluation committee recommends that the Town Council censure the Planning
Commissioner for violating the Code of Conduct requirement for “constructive
communication.” In addition, the committee recommends that the Mayor provide counseling
to the Commissioner regarding future communications.
COORDINATION:
This report was coordinated between the Town Manager’s and Town Attorney’s office.
PAGE 3 OF 3 SUBJECT: Complaints Re: Planning Commissioner Letter to HCD DATE: February 10, 2023
FISCAL IMPACT:
There is no fiscal impact to the Town.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Complaints Received
2. Town Council Code of Conduct