How to participate: The Town of Los Gatos strongly encourages your active participation in the public process, which is the cornerstone of democracy. If you wish to speak to an item on the agenda, please follow the participation instructions on page 2 of this agenda. The time allocated to speakers may change to better facilitate the Town Council meeting.
Effective Proceedings: The purpose of the Town Council meeting is to conduct the business of the community in an effective and efficient manner. For the benefit of the community, the Town of Los Gatos asks that you follow the Town’s meeting guidelines while attending Town Council meetings and treat everyone with respect and dignity. This is done by following meeting guidelines set forth in State law and in the Town Code. Disruptive conduct is not tolerated, including but not limited to: addressing the Town Council without first being recognized; interrupting speakers, Town Council or Town staff; continuing to speak after the allotted time has expired; failing to relinquish the podium when directed to do so; and repetitiously addressing the same subject.
Deadlines for Public Comment and Presentations are as follows:
Persons wishing to make an audio/visual presentation on any agenda item must submit the presentation electronically, either in person or via email, to the Clerk’s Office no later than 3:00 p.m. on the day of the Council meeting.
Persons wishing to submit written comments to be included in the materials provided to Town Council must provide the comments as follows:
o For inclusion in the regular packet: by 11:00 a.m. the Thursday before the Council meeting
o For inclusion in any Addendum: by 11:00 a.m. the Monday before the Council meeting o For inclusion in any Desk Item: by 11:00 a.m. on the day of the Council Meeting
TOWN OF LOS GATOS
SPECIAL MEETING OF THE TOWN COUNCIL AGENDA
FEBRUARY 15, 2023
110 EAST MAIN STREET AND VIA TELECONFERENCE
LOS GATOS, CA
6:30 PM
Maria Ristow, Mayor
Mary Badame, Vice Mayor
Matthew Hudes, Council Member
Rob Moore, Council Member
Rob Rennie, Council Member
PARTICIPATION IN THE PUBLIC PROCESS
Town Council Meetings Broadcast Live on KCAT, Channel 15 (on Comcast) on the 1st and 3rd Tuesdays at 7:00 p.m.
Rebroadcast of Town Council Meetings on the 2nd and 4th Tuesdays at 7:00 p.m.
Live & Archived Council Meetings can be viewed by going to:
www.LosGatosCA.gov/TownYouTube
IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT, IF YOU NEED SPECIAL ASSISTANCE TO PARTICIPATE IN THIS MEETING, PLEASE CONTACT THE CLERK DEPARTMENT AT (408) 354-6834. NOTIFICATION 48 HOURS BEFORE THE MEETING WILL ENABLE THE TOWN TO MAKE REASONABLE ARRANGEMENTS TO ENSURE ACCESSIBILITY TO THIS MEETING [28 CFR §35.102-35.104]
TOWN OF LOS GATOS
SPECIAL MEETING OF THE TOWN COUNCIL AGENDA
FEBRUARY 15, 2023
TOWN COUNCIL CHAMBERS AND VIA TELECONFERENCE
110 E. MAIN STREET
6:30 PM
IMPORTANT NOTICE
This is a hybrid meeting and will be held in-person at the Town Council Chambers at 110 E.
Main Street and virtually through the Zoom webinar application (log-in information provided below). Members of the public may provide public comments for agenda items in-person or virtually through the Zoom webinar by following the instructions listed below.
PARTICIPATION
To provide oral comments in real-time during the meeting:
Zoom webinar: Join from a PC, Mac, iPad, iPhone or Android device: Please click this URL to join: https://losgatoscagov.zoom.us/j/82326283109?pwd=dXd2OVlvRmdaZllwNUVBaWdSUGxkQT09 Passcode: 084378 You can also type in 823 2628 3109 in the “Join a Meeting” page on the Zoom website at https://zoom.us/join.
o When the Mayor announces the item for which you wish to speak, click the “raise hand” feature in Zoom. If you are participating by phone on the Zoom app, press *9 on your telephone keypad to raise your hand. Join by telephone: Join by Telephone: Dial: USA 877 336 1839 US Toll-free or 636 651 0008 US Toll. Conference code: 686100
o If you are participating by calling in, press #2 on your telephone keypad to raise your hand.
In-Person: If you wish to speak during the meeting, please complete a “speaker’s card” located on the back of the chamber benches and return it to the Town Clerk. If you wish to speak to an item on the agenda, please list the item number. The time allocated to speakers may change to better facilitate the Town Council meeting.
When called to speak, you may be asked to provide your full name and your town/city of residence. This identifying information is optional and not a requirement for participation. Please limit your comments to three (3) minutes, or such other time as the Mayor may decide, consistent with the time limit for speakers at a Council meeting.
If you are unable to participate in real-time, you may email to [email protected] the subject line “Public Comment Item #__ ” (insert the item number relevant to your comment).
Comments received by 11:00 a.m. the day of the meeting will be reviewed and distributed before the meeting. All comments received will become part of the record.
REMOTE LOCATION PARTICIPANTS The following Council Members are listed to permit them to appear electronically at the Town Council meeting: COUNCIL MEMBER ROB RENNIE. All votes during the teleconferencing session will be conducted by roll call vote.
RULES OF DECORUM AND CIVILITY
To conduct the business of the community in an effective and efficient manner, please follow the meeting guidelines set forth in the Town Code and State law.
The Town does not tolerate disruptive conduct, which includes but is not limited to:
· Addressing the Town Council without first being recognized; · Interrupting speakers, Town Council, or Town staff;
· Continuing to speak after the allotted time has expired; · Failing to relinquish the microphone when directed to do so; · Repetitiously addressing the same subject.
Town Policy does not allow speakers to cede their commenting time to another speaker. Disruption of the meeting may result in a violation of Penal Code Section 403.
MEETING CALL TO ORDER
ROLL CALL
OTHER BUSINESS (Up to three minutes may be allotted to each speaker on the following item.)
1. Accept Recommendation of Censure of, and Counseling for, a Planning Commissioner Regarding Communication to the California Department of Housing and Community Development or Take Other Action.
ADJOURNMENT (Council policy is to adjourn no later than midnight unless a majority of Council votes for an extension of time).
Writings related to an item on the Town Council meeting agenda distributed to members of the Council within 72 hours of the meeting are available for public inspection at the front desk of the Los Gatos Town Library, located at 100 Villa Avenue, and are also available for review on the official Town of Los Gatos website. Copies of desk items distributed to members of the Council at the meeting are available for review in the Town Council Chambers.
Note: The Town of Los Gatos has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a decision of the Town Council must be brought within 90 days after the decision is announced unless a shorter time is required by State or Federal law.
PREPARED BY: Gabrielle Whelan
Town Attorney
Reviewed by: Town Manager and Town Attorney
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 02/15/2023
ITEM NO: 1
DATE: February 10, 2023
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Accept Recommendation of Censure of, and Counseling for, a Planning Commissioner Regarding Communication to the California Department of Housing and Community Development or Take Other Action
RECOMMENDATION:
Accept recommendation of censure of, and counseling for, a Planning Commissioner regarding communication to the California Department of Housing and Community Development or take other action.
BACKGROUND:
The Town has received a number of complaints (Attachment 1) regarding a letter sent by a Planning Commissioner to the State Department of Housing and Community Development (“HCD”). The letter asked whether HCD was aware that there was a referendum of portions of the Town’s General Plan, stated that the referendum proponents were “rich white men,” and asked for HCD’s assistance.
When the Town receives complaints regarding Commissioner conduct, the Town applies its Code of Conduct (Attachment 2). Pursuant to the Code of Conduct, an evaluation committee consisting of the Mayor, Vice Mayor, Town Manager, and Town Attorney met to review the complaints and recommend a course of action.
DISCUSSION:
The primary questions raised by the complaints were whether:
1) The Planning Commissioner has a conflict of interest affecting her ability to serve as a Planning Commissioner;
PAGE 2 OF 3
SUBJECT: Complaints Re: Planning Commissioner Letter to HCD DATE: February 10, 2023
DISCUSSION (continued):
2) The Planning Commissioner exhibited bias which will affect her ability to vote on Housing Element amendments in the future; and
3) There was a violation of the Town Council’s Code of Conduct (which also applies to Commissioners).
The evaluation committee determined that there is no conflict of interest because neither she nor her employer financially benefit from housing development in Los Gatos. The evaluation committee also determined that Procedural Due Process will not preclude the Commissioner from voting on future Housing Element amendments. Procedural Due Process principles prohibit public officials from exhibiting bias or pre-judgment before making a “quasi-judicial” decision. The Town’s Housing Element is a legislative rather than a “quasi-judicial” decision.
Commissioners are free to express opinions on general policy matters such as housing or legislative matters such as the Housing Element.
The evaluation committee did conclude that there was a violation of the Town’s Code of Conduct in that the proponents of the referendum were described by race and socio-economic status. This violates the Code of Conduct’s requirement for “constructive communication.” The letter was also inconsistent with the Planning Commissioner Handbook’s admonitions to:
be considerate of “all interests, attitudes, and differences of opinion,” “observe the appearance as well as the principle of impartiality,” and “treat everyone with respect and dignity,” Despite this violation of the Code of Conduct, the evaluation committee recognized that Commissioner Clark is prepared and participates actively in her responsibilities as a Planning Commissioner and noted that this is the first time she has violated the Town’s Code of Conduct.
For those reasons, the review committee has concluded unanimously that removal from the Planning Commission is not warranted.
CONCLUSION:
The evaluation committee recommends that the Town Council censure the Planning Commissioner for violating the Code of Conduct requirement for “constructive communication.” In addition, the committee recommends that the Mayor provide counseling to the Commissioner regarding future communications.
COORDINATION:
This report was coordinated between the Town Manager’s and Town Attorney’s office.
PAGE 3 OF 3
SUBJECT: Complaints Re: Planning Commissioner Letter to HCD DATE: February 10, 2023
FISCAL IMPACT:
There is no fiscal impact to the Town.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Complaints Received
2. Town Council Code of Conduct
ATTACHMENT 1
ATTACHMENT 2 Page 18
PREPARED BY: Gabrielle Whelan
Town Attorney
Reviewed by: Town Manager and Town Attorney
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 02/15/2023
ITEM NO: 1
DESK ITEM
DATE: February 15, 2023
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Accept Recommendation of Censure of, and Counseling for, a Planning Commissioner Regarding Communication to the California Department of Housing and Community Development or Take Other Action
REMARKS:
Attachment 3 contains public comments received after the publication of the staff report and before 11:01 a.m. on Wednesday, February 15, 2023.
Attachments Previously Received with the Staff Report:
1. Complaints Received
2. Town Council Code of Conduct
Attachment Received with this Desk Item:
3. Public Comments
From: John Bertolotti
Sent: Monday, February 13, 2023 4:35:17 PM
To: [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; Mary Badame <[email protected]>; Rob Rennie <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]> Subject: Kylie Clark's prejudicial biases
[EXTERNAL SENDER]
To Our Town Council Members,
I am a long term resident of Los Gatos in possession of a letter written by Kylie Clark dated November 18, 2022. I am totally insulted by her reference to “a few rich white anti-housing men in our town”. That is a racial statement and derogatory to anyone with assets. At what level of assets does one become a “rich guy”?
I had no knowledge nor did I partake in any form of signature gathering.
I do not think that Kylie Clark belongs in ANY decision making position within our town. Her prejudicial statement, above, shows her personal bias.
John Bertolotti
Los Gatos
MBA, Real Estate and Urban Land Economics, UC Berkeley
ATTACHMENT 3
From: Dennis Grist
Sent: Sunday, January 29, 2023 5:16 PM
To: [email protected]; Gabrielle Whelan <[email protected]> Subject: Planning Commissioner Kylie Clark
[EXTERNAL SENDER]
January 29, 2023
Attn: Los Gatos Town Staff
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Re: Planning Commissioner Kylie Clark
I am writing this email to you to lodge a complaint against Los Gatos Planning Commissioner Kylie Clark. She recently emailed the State of California Housing Elements ([email protected]) dated November 18, 2022, asking if the State “would be able to support our town in any way” with regards to defeating or not allowing the referendum which would allow the voters of Los Gatos to determine their own housing issues. She refers to the concerned voters and citizens who are in favor of a referendum on the Towns‘ housing plans as “a few upset rich residents” and “a few rich white antihousing men”. Her prejudice and lack of impartiality is front and center and should not be tolerated. A referendum is part of the democratic process whether one agrees with it or not.
Although she writes her email “as a concerned citizen,” she also includes that she is a “Los Gatos Planning Commissioner” and signs off with “in community”. That is an admission that she is unable to use unbiased and impartial judgement as a Planning Commissioner while fulfilling her duties to the residents of Los Gatos. She is an agenda-driven activist and will be prejudiced in her decision making. I believe it is time to remove her from her Planning Commission position. We need fairness, discernment, and a Planning Commission that listens to the residents.
Thank you,
Dennis Grist
Los Gatos Resident since 1978
Los Gatos Business owner since 1990
--
Dennis Grist
Grist Construction
From: Kylie Clark
To: Clerk
Subject: Public Comment Item #1 - Special Meeting 2/15/23 Date: Tuesday, February 14, 2023 11:45:28 PM
Attachments: Kylie Clark Public Comment - Special Meeting 2-15-23.pdf [EXTERNAL SENDER]
Hi Wendy,
I hope this email finds you well! Attached is my public comment letter for the special meeting.
Thank you so much for your hard work.
In community,
Kylie
(Pronouns: she, her, hers)
Yes, We Live on Ohlone Land. But What Does That Mean?
------
Kylie Clark
Community organizer, nonprofit professional
Honorable Mayor, Vice Mayor, and Councilmembers,
I hope this email finds you well. As I am only afforded the same three minutes as any other individual in today’s hearing, I am writing to you to ensure all of the information I wish to share is included and considered.
I made a mistake, and I wish I had worded things differently. But I had the best interest of the Town at heart and the email was truthful. I strongly feel that a censure is not warranted, and I am eager to learn and grow from this experience. I have learned my lesson, and I don’t need a censure to do so.
As I have expressed to the committee, I am extremely concerned that I did not receive fair treatment during this process.
The Town's Code of Conduct Policy states that: "Upon report of a written complaint, the Town Manager and Town Attorney will join the Mayor or Vice Mayor as an evaluation committee to determine the validity of the complaint." This may be discretionary, but it is not clear to me why both the Mayor and Vice Mayor sat on the committee when the policy clearly states it is to be one of them.
The policy goes on to state that: "If the reported violation is considered to be serious in nature, the matter shall be referred to outside legal counsel selected by the Committee for the purpose of conducting an initial interview with the subject Council Member. The outside counsel shall report his/ her initial findings back to the Committee." This is not the process that I received. To my knowledge, no outside legal counsel was consulted, and I was never given the chance to provide my side of the story despite the policy calling for my interview.
After the report from outside counsel, "If the Committee then determines that an investigation is warranted, the Committee shall direct the outside legal counsel to conduct an investigation." Then, "At the conclusion of the investigation, outside legal counsel shall report back to the Committee in writing." The committee would then review the recommendations and come to a consensus of whether to implement the recommendations, which could include a censure.
Many of these steps were skipped and the Town is moving forward with one of the most serious forms of recourse possible. I'm particularly upset by this because the committee came to the conclusion to censure me without following the process that is meant to ensure this is the proper form of action.
The policy states that: "If the reported violation is deemed valid but minor in nature, the Mayor or Vice Mayor shall counsel and, if appropriate, admonish the Council Member privately to resolve the matter. Admonishment is considered to be a reproof or warning directed to a Council Member about a particular type of behavior that violates Town policy." The Town hasn't censured anyone in the past decade, if not longer. This is a serious decision and should not be taken lightly, especially as it has direct and real impacts on my life and future.
In the past 10+ years, council members, commissioners, and committee members have made comments that many would find more offensive than mine during meetings. In response, they received private counsel, as these comments were considered minor violations. Because I said a few poorly chosen words in an email in which I clearly stated I was not speaking as a commissioner, I am being censured. I don’t understand why my comment was deemed to be worse than all of those in the past, and I don’t understand why this isn’t considered a minor violation, especially when I have no history of violating the Town’s Code of Conduct.
The Code of Conduct does not state that a censure is required for any violation of the code.
Rather, a censure is meant for a major violation in which it is decided that private counsel is not sufficient. Just because the committee found I violated the code does not mean I must be censured; please consider whether this is the proper course of action when many other, less harsh paths exist.
With this censure, you are setting a very dangerous precedent for future engagement from Los Gatos council members, commissioners, and committee members. If someone makes any violation to the Code of Conduct, they may face public admonishment for doing so. By classifying this as a major violation, you are setting a very low bar for what it takes to be censured. Public servants must feel they are able to exercise their right to free speech without intimidation or fear of retaliation.
I understand that in the past, council members and commissioners have been counseled when a violation has occurred. I would happily embrace this opportunity. I clearly was unaware of how my words may be seen by others and I have a lot to learn. I am truly eager to grow from this. I am young and would prefer not to have a censure follow me as I continue my professional journey.
I can assure you that this will not happen again. I feel that the Town has violated its own code of conduct while working to enforce it by circumventing the entire process laid out in the code.
Please consider affording me the same grace that has been afforded other public servants for decades, and allow me to grow from this through private counseling rather than a public censure.
Thank you to each of you for all you do.
In community,
Kylie