SAN JOSE — Nearly a decade after a Vietnamese community group took San Jose to court over claims that elected officials secretly lined up votes in naming a retail center, a judge agreed that the City Council violated open meeting laws — and ordered a fix to stop it from happening again.
The lawsuit, filed in February 2008, claims former Councilwoman Madison Nguyen privately rallied support from a majority of council members to name a shopping center “Saigon Business District.” If a council member privately discusses an issue up for a vote with five of San Jose’s 11 City Council members — a majority — it is considered a violation of the Ralph M. Brown Act.
The Brown Act requires a city’s elected leaders to conduct business in open public meetings, and prohibits a voting majority from meeting secretly beforehand to line up votes.
The City Council adopted Nguyen’s plan and voted to name the center Saigon Business District — a decision that sparked community outrage and led to an unsuccessful effort to recall Nguyen. Most Vietnamese residents wanted the Story Road shopping center to be named Little Saigon, which the city eventually agreed to.
Following a brief trial last year, Santa Clara County Superior Court Judge Vincent J. Chiarello this week found that San Jose elected leaders “inadvertently” violated the Brown Act when recognizing the shopping center as a Vietnamese retail destination.
And, the judge added in his 105-page ruling, additional Brown Act violations are likely to recur because of the City Council’s policy of allowing members to sign on to memoranda supporting a certain action or decision.
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In this case, the violation occurred after Nguyen had solicited signatures from four other council members on a November 2007 memo supporting naming the center Saigon Business District. But Nguyen also discussed the project in passing with another council member months earlier.
That means Nguyen had private conversations with a total of five other council members about the Vietnamese retail district — totaling a six-member majority — in violation of the Brown Act. Chiarello found the violation was unintentional and called Nguyen’s decision a “political miscalculation.”
The judge said the violation occurred when establishing the retail center, not naming it.
Nguyen, who lost a bid for state Assembly in November to another former council member, Ash Kalra, said the violation wasn’t intentional and she’s hoping to put the past behind her.
“It was just a casual conversation that was mistaken for something else,” Nguyen said. “It’s the start of a new year and I’m relieved that we can move on from a decade-long issue.”
But the San Jose City Council still issues five-signature memos today — a practice the judge found to be risky. It opens the council up to future violations because a discussion with one additional council member would mean a violation.
Mayor Sam Liccardo, former Vice Mayor Rose Herrera and other council members admitted to at least three similar Brown Act violations last year.
The judge ordered the council members to issue written statements saying they’ve not discussed the issue with a sixth council member — and won’t have additional conversations — any time they sign on to memos co-signed by five members.
James McManis, the attorney for the plaintiffs, the Vietnamese American Community of Northern California, said the judge’s order requiring statements is a “big step in the right direction.”
“There was a lot of backdoor stuff going on with Little Saigon and it’s not the only time it’s happened,” McManis said. “I’m delighted because I think it’ll make for better government. The residents of San Jose will benefit from this.”
Peter Scheer, former executive director of the First Amendment Coalition, said the statements are a “creative solution” that should stop future violations. “It requires the participating council members to make a representation that they have not crossed and wont cross the line spelled out in the Brown Act,” he said.
But San Jose City Attorney Rick Doyle said the statements aren’t needed because the council members are aware of open government rules.
“It just adds one more thing we need to follow,” Doyle said. “But I think it’s something that will heighten their awareness.”
Doyle said the council will consider whether to appeal the ruling. McManis said he’ll seek reimbursement of his attorney’s fees from the city, which are estimated to exceed $1 million.
