Did Santa Clara County violate state law with CEO appointment?

Santa Clara County elected leaders apparently violated a state transparency law when they quietly appointed a new CEO behind closed doors.

The Santa Clara County Board of Supervisors voted unanimously Oct. 17 to appoint County Counsel James Williams to the county’s top executive seat during a closed session meeting, drawing backlash from community leaders over the secretive process and lack of public engagement. San José Spotlight has found the board failed to immediately report publicly the vote it took behind closed doors—a critical requirement of the Brown Act, the state’s sunshine law requiring public access to government meetings.

The board did not publicly report the action to appoint Williams until two weeks later. The first public disclosure happened during Tuesday’s board of supervisors meeting where his employment agreement was approved.

According to the Brown Act, any “action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session” must be reported at the public meeting during which the closed session is held.

Since the board held its closed session on Oct. 17, it should have disclosed Williams’ appointment the next day during the Oct. 18 supervisors meeting.

Yet, Williams said during the public meeting that, “There are no reportable actions taken at the closed session meeting on Oct. 17,” according to a recording of the Oct. 18 meeting.

David Snyder, executive director of First Amendment Coalition, said there’s no question the action the board took needed to be publicly reported immediately.

“If the board is appointing somebody to a public position in closed session, they are required to report that out to the public in the (following) public meeting,” Snyder, a First Amendment lawyer, told San José Spotlight. “They didn’t do that, and they appear not to have been in compliance with the Brown Act.”

The county’s current CEO Jeff Smith, who announced his retirement last week, confirmed that a closed session vote to appoint a county official should be reported at the next public meeting. He declined to comment on why this didn’t happen with Williams’ appointment.

“The issue is what was the board’s intent on the 17th, did they make a final decision or did they want more information?” Smith told San José Spotlight. “Nobody was in the meeting except for the board members, so I can’t comment on whether that was their final decision.” He referred further questions to the board president, Supervisor Mike Wasserman.

Wasserman did not return requests for comment.

Williams told San José Spotlight the action taken in closed session two weeks ago was only an authorization to meet with him and negotiate his employment agreement. He said those talks didn’t wrap up until Oct. 31, and the public disclosure of his appointment was made the next day, Nov. 1.

But county documents say the board “approved the appointment” during closed session on Oct. 17—an actionable item that should’ve been disclosed under state law.

Wasserman even confirmed during Tuesday’s meeting that the board appointed Williams behind closed doors two weeks ago.

“As president of the board of supervisors, I will report that at the October 17, 2022 closed session, by unanimous vote with all members present, the board of supervisors appointed you sir, James R. Williams, to be our next county executive effective upon the vacancy of the office of the county executive by Dr. Smith,” Wasserman said at the meeting.

Secretive process

Williams’ appointment has ruffled feathers throughout Silicon Valley. Nonprofit and community leaders this week said they first learned of his appointment Monday—weeks after the closed session vote. A coalition of more than 30 organizations and leaders signed a letter demanding more transparency and public involvement in the process. At least one elected official, Assessor Larry Stone, objected to the secretive hiring process.

Supervisor Susan Ellenberg on Tuesday assured the public the board made “all personnel decisions regarding any of the board-appointed positions in closed session in accordance with the Ralph M. Brown Act.” The board voted 4-1 to approve the employment agreement with Williams, making his promotion official when Smith retires in July. Supervisor Cindy Chavez was the lone no vote.

After publication, Ellenberg told San José Spotlight that she and the rest of the board misspoke.

“The language we used—I used—during the November 1 board meeting regrettably was inaccurate and I take responsibility for the angst this caused,” she said. “I’ve been meeting with labor, nonprofit and other community leaders throughout the week to address their concerns and allow for deeper conversation and learning opportunities moving forward. It is my continued hope this smooth transition in leadership will ensure our community continues to receive the supports it needs to thrive.”

According to Snyder, residents can submit a complaint, also known as a “cure and correct letter,” to the county to require the board to nullify its vote and revote. If no action is taken with 30 days of the letter, the complainant could sue the county.

“The county executive is obviously a very important position and the public should be apprised of who has been appointed to that position at the earliest possible opportunity,” Snyder said. “In fact, they’re entitled to know that as soon as the decision is made, and so if that decision were made in closed session and not reported out, that’d be pretty serious.”

Silicon Valley Minority Business Consortium CEO Walter Wilson, who spoke against the hiring process at the meeting this week, said he is appalled the county appears to have violated state law with Williams’ appointment.

“How was the No. 1 attorney in the county not aware of this?” Wilson told San José Spotlight. “They tried to do this underhanded backroom deal without having the public involved in the process of it, and they were very sloppy.”