Proposed censure policy dies – The Mercury News

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A proposed censure policy for Milpitas City Council, which died on Aug. 1 without being voted on, will return to the full council for a future vote, Councilman Bob Nunez said last week.

As proposed, the censure policy — typically a formal statement of disapproval — would target outspoken council members whom the majority of the panel do not agree with. When the policy was advanced by Nunez in May, following months of contention on the new council, the likely target was Mayor Rich Tran, who often found himself on the opposite side of the council majority since his election to the body last November.

Despite voicing her support for the policy, Vice Mayor Marsha Grilli on Aug. 1 did not second a vote on the proposal, nor was one forthcoming from Tran or Councilman Anthony Phan, who openly oppose the policy. Regardless, Nunez said the item should come back on a future council agenda so Councilman Garry Barbadillo, who was absent from the Aug. 1 meeting, could voice his opinion on the matter.

“I don’t think it died. There was one council person that was not there, there was no vote on it. My hope is it will come back once the whole council is there,” Nunez told the Post on Aug. 3. “I do believe as a body we need to ensure we can police ourselves, I don’t want an outside body to be the one that decides if we are acting appropriately or not, we can do that ourselves.” 

In May, Nunez told the Post that he’d asked for a censure policy to make sure the council is on the same page in representing the city and to make sure issues were discussed amongst the council before being presented 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.

At the Aug. 1 meeting, City Attorney Christopher Diaz said a council member who is being considered for censure has the right to due process, which requires them being given notice, a fair hearing and the opportunity to be heard. Diaz added that a council member could be censured for violating federal, state, or local law or any council policy, by-laws or a standing order of the council.

Additionally, Diaz detailed the proposed policy where a request can be made by a council member for censure of another council member and an ad hoc committee of two council members not part of the request would be formed to investigate the request. Under that policy, Diaz as city attorney would oversee the process.
At the Aug. 1 meeting, Phan and Tran both said they did not see how passing a censure policy would be helpful.

“Whatever conflict we may have had in the past I am hopeful we can put it aside,” Phan said. “I think moving forward with a censure policy opens up the room for gridlock and more tension amongst each other, which is certainly not the path we want to move forward with.”  
Phan added that he was in favor of accountability by the public and said he believed in the council’s ability to work out conflict by using constructive dialogue.

Nunez countered that the policy was forward looking. “But you are never sure what kind of team you are going to have, this is a tool if you need it,” he said. 
Tran said the council was wasting time talking about itself, taking away time from discussing issues that directly affect Milpitas residents.

“I don’t see how this helps us … I’m here to do the people’s work and improve their quality of life…I feel a censure policy is a slap on the wrist and I am not in the business of slapping people on the wrist,” Tran added.

If the city does approve a censure policy it will join the ranks of San Jose, Oakland and Sunnyvale who currently have such policies.

Terry Francke, a First Amendment expert, previously said 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



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