Milpitas: Mayor Tran takes offense at Nunez's censure policy push – The Mercury News

The Milpitas City Council’s meeting heated up last week when Councilman Bob Nunez admitted that Mayor Rich Tran’s actions are what prompted him to propose a censure policy.

A censure typically is a formal statement of disapproval against one council member by the rest of his or her colleagues.

At the council’s Oct. 3 meeting, Tran asked Nunez why he was introducing what seemed to him “a politically motivated” censure policy.

“There have been times at this very table we have been advised by our city attorney to keep certain things and not speak of certain things,” Nunez replied. “Not all of us have taken his advice, one of those persons being you, mayor.”

Nunez said the council pays City Attorney Chris Diaz “good money” and should follow what he advises. He noted that former City Manager Tom Williams has threatened a lawsuit against Tran and the city.

“There is a lawsuit in place, there are no findings in place, but in the lawsuit with regard to you and the previous city manager, and we keep sitting silent on it, but it is still going forward and based on the outcome of that we may need to use this policy again,” Nunez told Tran. “So I for one would like to have something here in the event that you or I do something this body feels maybe they need to take action on.”

Tran then asked Diaz if he’d ever violated city policy, to which the city attorney later replied no.

Tran insisted he had not broken any laws or been found guilty of any wrongdoing and said he “stood against” any claims to the contrary. Tran added that he would not support the policy, although it seemed like a good tool, because there was no reason for one in Milpitas.

“We have a lot more issues that affect the quality of life of our residents, weed abatement, air quality, the list goes on and I don’t see how this helps one ounce,” Tran told Nunez.

In May, Nunez told the Post he’d asked for a censure policy to make sure the council is on the same page in representing the city before presenting issues to residents. Nunez also asserted that he could not count the number of times he’d read something for the first time in the newspaper about what a council member was proposing or something leaked out of closed session.

Diaz said a council member being considered for censure has the right to due process, which requires a notice, a fair hearing and the opportunity to be heard. He added that a council member could be censured for violating a federal, state or local law or any council policy, by-laws or a standing order of the council.

He explained that under the proposal, any council member can request a censure and that an ad hoc committee of two other council members would be formed to investigate. Diaz, as city attorney, would oversee the process.

The council eventually voted 4-0, with Tran abstaining, to direct staff to return Oct. 17 with a version of the policy that allows censure as a last step after less severe reprimands are first made.

Prior to the vote, Councilman Garry Barbadillo said “censure” should be a last step because it’s the most “severe” action that can be taken against a council member.

He suggested that a council admonishment be the first step, followed by an informal reprimand that could result in the targeted council member being removed from a committee or stripped of traveling privileges. A formal reprimand with a statement of censure would be the last and severest step.

In advocating for a censure policy, Vice Mayor Marsha Grilli recalled how two members of a previous city council wanted to censure a colleague but couldn’t because the city did not have a censure policy.

“I don’t think we are creating this for past behavior or that anyone here would use it for petty policies. I think we are looking at our resources to use if something harmed the city or the citizens,” she added.

Councilman Anthony Phan expressed concern that a censure policy could be used to stifle free speech and asked Nunez if during his time as superintendent of the East Side Union High School District in San Jose he had ever seen censure work.

Nunez replied that a school board member once was censured and .didn’t get re-elected, though she was voted back onto the board two years later. Asked by Phan if the censure accomplished anything, Nunez said “I would think you would have to ask those two persons; the rest of the board felt they needed to take action. They did in fact vote 4-0. They felt it accomplished something.”

This is the second time the censure policy was brought before the council. A motion to approve it at an August meeting, with Barbadillo absent, died from lack of a supporting vote. Nunez asked for the policy to be voted on again by a full council on Oct. 3.

Terry Francke, a First Amendment expert, previously told this newspaper he had never seen censure policies result in much improvements in how local officials behave while in elective office.

“At most they simply reflect the disapproval by the majority of something their peer has done or said. And if the member is so sure that his colleague deserves reproach, he doesn’t need a policy to say so. But one thing the council cannot lawfully do is take the conduct of its members into closed session,” Francke said.

Leave a Comment