A split San Jose council appoints Diep to critical city commission

A divided San Jose City Council voted 6-4 to appoint outgoing Councilmember Lan Diep to a critical city commission created to significantly challenge San Jose’s government.

The council voted unanimously Dec. 15 to appoint 22 other members to the newly-formed Charter Review Commission, but opted to vote for Diep separately because he is a sitting councilmember.

Diep was recommended for one of three at-large seats on the commission by San Jose Mayor Sam Liccardo, raising questions about a conflict of interest and potential open meeting law violation.

Diep — a Liccardo ally who will be out of office in two weeks after losing to Councilmember-elect David Cohen — voted in favor of his own nomination after residents and fellow councilmembers demanded he recuse himself, citing a potential conflict of interest.

“I’m diverse enough, I’m independent enough, and — gosh darn it — people like me,” Diep said, defending his seat. “This was something I was invited to do so I said ‘let’s do it.’”

While City Attorney Nora Frimann said no legal conflict prevents Diep from voting on his own appointment, Diep’s nomination by Liccardo and vote for himself didn’t sit well with Councilmembers Magdalena Carrasco, Sergio Jimenez, Raul Peralez and Maya Esparza who voted against the appointment.

Councilmember Sylvia Arenas, who often sides with the four dissenters, was absent for the vote after contracting COVID-19.

“The optics here are pretty bad,” Peralez said.

The downtown lawmaker said he was surprised the mayor would select a defeated councilmember and urged his colleagues not to seat Diep on the commission.

Carrasco added that something can be legal, but that doesn’t mean it will look good to the public. She asked that the vote be deferred for three weeks, but her push was denied.

In a letter obtained by San José Spotlight Dec. 14, community organizations including South Bay Labor Council, Minority Business Consortium, Asian Law Alliance, Silicon Valley Rising and Working Partnerships USA outlined their concerns surrounding Diep’s appointment and possible conflicts of interest.

They questioned whether Liccardo violated the Brown Act, the state’s open meeting law, by privately speaking with Diep about the appointment opportunity. Diep applied for the seat on Dec. 11, the deadline for applications for Liccardo’s picks.

The 23-member Charter Review Commission was formed shortly after Liccardo failed to shift San Jose to a strong mayor system, which would have extended his term by two years and granted him additional powers to hire and fire city department heads. Diep initially voted in favor of extending the mayor’s powers. Critics called the move a power grab.

Liccardo, Vice Mayor Chappie Jones, councilmembers Dev Davis, Pam Foley and Johnny Khamis defended Diep.

“I don’t think there is a principled reason why Councilmember Diep should not serve — other than someone just doesn’t agree with his views,” Liccardo said.

Peralez questioned Diep’s ability to be neutral in light of his opinionated stances on the issues the charter was created to discuss.

The commission is tasked with examining San Jose’s current governance structure and exploring a shift to a strong mayor system in which the mayor has executive powers. It will also decide whether a new mayor in 2022 would serve two years or six years to transition city mayoral elections to the presidential years in 2024 or 2028.

These changes require amending the city’s charter.

Davis said the position is perfect for Diep.

“I have found Councilmember Diep to be one of the most thoughtful members on the council, especially when it comes to the area of process and the form of government,” Davis said. “I just don’t think that it matters that he’s already laid out his thoughts and feels strongly one way or the other.”

Liccardo countered Peralez’s argument by saying Garrick Percival, a San Jose State political science professor, has publicly expressed his views on charter matters and he too will sit on the commission. The mayor said that predetermined views are not a problem.

Diep said his views may be subject to change.

Carrasco, however, criticized Diep for “mansplaining” on the City Council and warned him to listen to others —especially those who aren’t as “scholarly” as him — once he gets on the commission.

“Your voice will carry weight with many of the councilmembers,” Carrasco said, raising her voice. “I hope, lessons learned, as individuals speak and express themselves — and may not be as scholarly as yourself — that you will have an ability to listen and to go in open minded and not be persuaded in the opposite direction, when they don’t necessarily approach you in the way that you expect them to approach you, or don’t have a Stanford degree.”

Diep said he will remain open-minded on the commission.

“At the end of the day,” Diep said, “my goal is to build the best city of San Jose possible for all of us.”

Contact Carly Wipf at [email protected] or follow @CarlyChristineW on Twitter.

Editor’s Note: Working Partnerships USA executive director Derecka Mehrens serves on San José Spotlight’s Board of Directors.