Staff Report. Rescission of Planning Commissioner Censure
Reviewed by: Town Manager
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 3/21/2023 ITEM NO: 14P
DATE: March 14, 2023
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Rescission of Planning Commissioner Censure
RECOMMENDATION:
Rescission of Planning Commissioner censure.
BACKGROUND:
Earlier this year, Commissioner Clark wrote an email to the California Department of Housing
and Community Development (HCD). The email mentioned that there had been a referendum
of two General Plan Elements in the Town, that more housing was needed, and described the
referendum sponsors in terms of race and socio-economic status.
The Town received numerous complaints regarding this communication. In accordance with
the Town’s Code of Conduct Policy, the Town convened an evaluation committee to evaluate
the complaints. The evaluation committee determined that Planning Commissioners have a
right to express opinions on policy matters such as housing. However, the evaluation
committee also determined that the Commissioner’s communication violated the Town’s Code
of Conduct Policy based upon the divisiveness of the comments regarding race and socio-
economic status. The evaluation committee recommended censure and the Town Council
verbally censured the Planning Commissioner.
DISCUSSION:
After the verbal censure, counsel for the American Civil Liberties Union (the “ACLU”) contacted
the Town to state that the censure violated the Commissioner’s First Amendment right to free
speech. The Town Attorney has reviewed the case law cited in the ACLU letter and discussed it
with ACLU counsel. Case law provided in the ACLU letter stands for the proposition that there
PAGE 2 OF 2 SUBJECT: Rescission of Planning Commissioner Censure DATE: March 14, 2023
DISCUSSION (continued):
is a distinction between speech made in one’s capacity as a public official as opposed to speech
made in one’s capacity as a private individual. When speaking as a private individual, a person’s
speech cannot be fettered.
CONCLUSION:
Based upon the case law provided by the ACLU and the fact that the Planning Commissioner
clearly stated that she was providing comments in her individual capacity to HCD, the Town
Attorney is recommending that the Town Council rescind its censure of the Planning
Commissioner.
FISCAL IMPACT:
None.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.