rgiwargis@bayareanewsgroup.com
SAN JOSE — A judge has tentatively ruled that San Jose violated open-meeting law when designating what would become the Little Saigon shopping district, a black eye for a city that’s already admitted similar violations in the past.
Santa Clara County Superior Court Judge Vincent J. Chiarello called the Little Saigon violation “inadvertent,” but also criticized a “dangerous” long-standing practice in which the city’s elected leaders issue joint memorandums signed by multiple council members on matters coming before City Council meetings in an effort to build concurrence.
But Chiarello’s tentative ruling isn’t exactly a victory for the Vietnamese American Community of Northern California, which brought the lawsuit in 2008 demanding the city admit open-meeting law violations and cover its legal fees. But the judge disagreed with the group about how the violation occurred and whether it was intentional. The group’s lawyer, James McManis, called that a mistake. The judge gave both sides 30 days to respond before issuing a final ruling.
“Judge Chiarello is a good judge,” McManis said. “But just like a good umpire in a baseball game makes the wrong call, that’s what happened here. I think he just got it wrong. I’m hoping we can help him straighten it out in the next 30 days.”
San Jose City Attorney Rick Doyle on Friday said “we strongly disagree with Mr. McManis’ points” but added that “we’re not prepared to make comments at this time.”
The 2008 lawsuit alleges San Jose elected officials, especially former councilwoman Madison Nguyen, violated the state’s open meeting laws when naming the Story Road shopping center. A majority of residents wanted to call it “Little Saigon” — an effort by the city’s South Vietnamese community to name the business district after their fallen former capital. But Nguyen convinced her council colleagues to call it Saigon Business District instead.
Although the city later reversed course after protests and renamed it Little Saigon, the Vietnamese community group claimed in its lawsuit that Nguyen had secretly lined up majority support for her idea. The Ralph M. Brown Act, the state’s open meeting law, requires a city’s elected leaders to conduct business in properly noticed public meetings, and prohibits a voting majority from meeting secretly beforehand to line up votes.
Nguyen in November 2007 submitted a memo proposing the Saigon Business District name, endorsed by four other council members. The council later voted to adopt the title.
Then Councilman Forrest Williams revealed during a TV interview that he gave Nguyen his “support” during a casual conversation in August 2007 — several months before the vote. Since Williams would be the sixth council member to discuss the idea outside the public eye — a majority of the 11-member council — that would be considered a Brown Act violation, the community group argued.
The judge determined that the City Council violated the Brown Act before it voted to create the retail center, but didn’t agree it involved its name. He said the August conversation between Nguyen and Williams was about the shopping district in general, not about its specific name.
The community group “has not shown that there were any improper communications, or that ‘the fix was in,’ surrounding the naming of the area,” the judge wrote.
That came as a relief to Nguyen, now running for state Assembly, who said she was “pleased to see a positive tentative ruling.”
Chiarello added that the Brown Act violation related to creating the district was “inadvertent.”
The lawsuit cited several earlier examples of violations, some of which the city acknowledged in court. Those included a 2000 vote on a Calpine power plant, a 2002 vote on redeveloping the Tropicana Shopping Center and a 2007 vote on rebuilding a fire station. More recently, Mayor Sam Liccardo and Vice Mayor Rose Herrera admitted to three inadvertent Brown Act violations last year.
“Four of the Brown Act violations in this case therefore were related at least to the extent of combining a joint memorandum with other discussions,” Chiarello wrote. “The fact that the violations have occurred as recently as 2015, however, might suggest that this is an ongoing issue.”
The city, while admitting the Brown Act violations occurred, said they were not because of joint memos, but because elected leaders had “lost track of who was involved and mistakenly may have communicated with too many council members.”
But McManis said “it’s a terrible practice and reeks of backdoor politics.”
Contact Ramona Giwargis at 408-920-5705. Follow her at Twitter.com/ramonagiwargis.
