Staff Report. Rescission of Planning Commissioner Clark Censure
Reviewed by: Town Manager, Finance Director and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 04/18/2023 ITEM NO: 17
DATE: April 13, 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, the Town received a number of complaints regarding an email sent by Planning
Commissioner Clark to the State Department of Housing and Community Development (“HCD”).
A copy of the email to HCD is attached as Attachment 1.
Based on the divisive nature of the email, on February 15th, the Town Council verbally censured,
and recommended counseling regarding future communications for, Planning Commissioner
Clark for comments made to the HCD regarding the General Plan referendum proponents.
After the Town Council meeting, the American Civil Liberties Union (“ACLU”) wrote to the Town
Council and stated that the verbal censure and required counseling was unconstitutional in that
the verbal censure was directed at comments made by the Planning Commissioner in her
personal capacity. A copy of the ACLU’s letter is attached as Attachment 2. The ACLU also
made a Public Records Act request for all communications related to the complaints and the
verbal censure. A copy of the complaints and documents provided in response to the ACLU’s
Public Records Act request is available at this link:
https://losgatosca.justfoia.com/publicportal/requests/PR-2023-50/view
I have reviewed the case law provided by the ACLU and concluded that the case law provides
that public officials cannot be disciplined for comments made in their personal capacity. (Bond
v. Floyd, 385 U.S. 116(1966)(holding that disqualifying a public official from taking office based
PAGE 2 OF 2 SUBJECT: Rescission of Planning Commissioner Censure DATE: April 13, 2023
BACKGROUND (continued):
on statements endorsed as a private citizen violated the public official’s First Amendment
rights). Based on this case law and the fact that the email to HCD stated that the comments
were being made in the sender’s personal capacity, I recommend that the Town Council rescind
its verbal censure of Planning Commissioner Clark for the divisive nature of the email to HCD. I
also recommend against any subsequent disciplinary action based on the Commissioner’s email
to HCD since the email stated that the comments were being made as a private individual.
CONCLUSION:
Accordingly, I recommend that the Town Council:
1) Rescind its verbal censure of Planning Commission Clark; and
2) State that counseling regarding communications made in one’s personal capacity should
not have been provided and will not be provided in the future.
FISCAL IMPACT:
Rescission of the verbal censure will not have a direct fiscal impact, but will avoid litigation
expenses and a potential award of attorney fees.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Email to HCD
2. Letter from ACLU