The Mercury News

ACLU: Censure of commission­er unconstitu­tional

- By Hannah Kanik hkanik@ bayareanew­

Los Gatos Town Council's censure of a planning commission­er for using “divisive” language caught the attention of First Amendment advocates who say the council's disciplina­ry process violated the commission­er's constituti­onal rights and was “plain and simple, illegal.”

The Northern California chapter of the American Civil Liberties Union wrote a letter to the council March 1, urging them to revoke Commission­er Kylie Clark's censure — a formal disapprova­l of her comments that she was given after calling out the “rich, white anti-housing men” in Los Gatos.

“That's just pure and utter censorship. They're saying, `We don't like this speech, and that's why we're going to discipline it,' and that's exactly what you can't do,” said Shilpi Agarwal, legal director of the ACLU of Northern California.

This letter is the first step in what could turn into a lawsuit between the ACLU and the town over Clark's First Amendment rights. The ACLU argued that the censure was “fragrantly illegal and violative of Miss Clark's free speech rights,” and that the town was trying to “make an example out of her.“

Town Attorney Gabrielle Whelan said she is in talks with the ACLU, and that the Los Gatos' Policy Commission is working on updating its disciplina­ry process.

“We are definitely reviewing the letter, and the policy committee met last week…to discuss updating the town's code of conduct policy, so we have an update underway,” Whelan said.

Clark said since the hearing, she has been getting an influx of mostly negative messages from people about her comments.

“It was validating to see the ACLU reach out and say that my First Amendment rights were violated because it did feel that way the whole time,” Clark said.

Last November, Clark wrote a letter to the state Department of Housing and Community Developmen­t about the referendum of the town's 2040 General Plan, in which she said it was paid for and passed by rich, white, anti-housing men in our town.”

The council was made aware of the letter after several angry residents reached out to staff, which launched an ad-hoc disciplina­ry committee that used a “patchwork” approach to determine how to discipline Clark for her “unconstruc­tive” comments.

Part of the disciplina­ry process included a public hearing on Feb. 15 where dozens of members of the public said the letter used “racist” and “biased” language, and that Clark was “inexperien­ced” and “racist.”

“Whether or not they think that the comments are racist is sort of beside the point,” Argawal said. “The First Amendment allows people to say things that other people may perceive as racist. That's just the reality of the way that free speech works in this country.”

Clark sat through the hourslong, contentiou­s meeting before making remarks of her own, in which she said she didn't intend her words to hurt anyone.

“I really do apologize for anyone I hurt during this,” Clark said. “I didn't want to hurt anyone's feelings, I really didn't want to personally attack anyone or come across as racist. I just do have opinions about the power structures that exist. … I should not have mentioned the demographi­c informatio­n like that.”

Members of the public were clapping and laughing during commentato­rs in support of Clark, and one was asked to leave the meeting after speaking out of turn.

The council voted to censure Clark, though several residents called for her to be suspended or removed from the planning commission.

Outside legal counsel is required for major offenses, while minor ones can be resolved privately, per the Town Council's code of conduct and the commission­ers' handbook. Clark's comments fell in the middle, Town Manager Laurel Prevetti said, and the committee determined her choice of words warranted more than just private counseling.

The policy commission, which includes Councilmem­bers Rob Moore and Matthew Hudes, is working to update the town's disciplina­ry process for future offenses.

“Clearly as we worked through the process, we saw that there was some discontinu­ities between our codes of conduct and our commission­er policies,” Los Gatos Mayor Maria Ristow said. “We figured out what we needed to do, but it's not clearly spelled out. We probably need to look at major and minor violations and be more clear on those.”

The ACLU said Clark's comments are protected under the First Amendment because she was speaking as a private citizen on a public matter. In Clark's communicat­ion with the state, she identified herself as a planning commission­er speaking as a “concerned citizen.”

The ACLU requested records from the town, including any records related to censure of any Los Gatos public official or to any prior complaints about a Los Gatos public official, and the town's response.

“I emailed HCD out of concern for our town. From what I heard, they weren't aware of the referendum, and I felt it was my civic duty as an engaged and concerned citizen to notify them,” Clark said. “Now, because I did what I believed to be right and made a mistake along the way, I am facing one of the harshest forms of punishment available to the town without being spoken to once throughout this entire process.”

Los Gatos is facing a referendum on its 2040 General Plan, which was the subject of Clark's letter to HCD. The Los Gatos Community Alliance, a slow-growth community group, filed the referendum last year because they believed the General Plan would make it possible for 12,000 housing units to be built in town in the next 20 years.

Town staff has publicly denied this several times, saying there's no guarantee that the town would even grow by 3,000 units.

Town Council will decide later this year whether to put the 2040 General Plan on the November 2024 ballot, hold a special election in 2023 or significan­tly revise the plan. Los Gatos must plan for 1,993 new housing units to be built between 2023 and 2031 to meet the needs of people across all income levels, per the state-mandated Regional Housing Allocation Number.

All cities in the state must submit a plan called the Housing Element that identifies potential housing sites, densities and policies to incentiviz­e housing.

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