Editorial: Our lawsuit could defend democracy in San Jose—and beyond

This story is part of a project called Democracy Day, in which newsrooms across the country are shining a light on threats to democracy and what action is needed to protect it.

Why would a small local news organization sue the 10th largest city in the country? What could it possibly gain? The legal costs are significant. The outcome offers no guarantees. On the surface it appears foolhardy.

Yet when San José Spotlight and the First Amendment Coalition sued the city and Mayor Sam Liccardo in February for improperly withholding emails, it did so specifically to change how government conducts business. To force city officials, in particular the mayor, to pull back that Wizard of Oz curtain and govern with transparency and accountability.

Our nonprofit digital news outlet did so after the city claimed emails didn’t exist—when we had copies—and failed to turn over records, delayed releasing documents and excessively blacked out messages. In one example, emails that should’ve been released under two California Public Records Act requests about Bloom Energy, where the mayor’s powerful pal Carl Guardino worked, turned up more than a year later under an unrelated request for Liccardo’s emails. We learned the mayor deleted a public record to skirt disclosure and almost exclusively uses private email to conduct city business.

But the lawsuit against the city and its mayor is much more than an email dump of information.

Our efforts to bring more sunshine to San Jose could have major implications for other cities. A ruling in our favor opens the door for more transparent, responsible governing, which is essential to a city’s health and survival. A greater level of public discourse between the community and public officials can bring a higher level of checks and balances between government and those it serves. In this case it could dissuade public officials from dodging the rules for their own personal interest.

When Liccardo uses his private email to conduct city business and fails to copy his government account, everything is not only off the grid, it also defies the spirit of a 2017 California Supreme Court ruling that originated in San Jose. That ruling also happened to involve our mayor who at the time was a councilmember. And, ironically, it pertains to the same issue: The city’s denial of emails and other public records.

The court ruled five years ago that elected officials’ communications on private accounts or devices are public records if they deal with public business. The court recommended that officials who use private email should copy their government accounts. But apparently city officials and the mayor, specifically, have ignored the ruling.

So here we are again. And even though the mayor terms out at the end of the year, the issue of governing in good faith and transparency has no such expiration date. Without a legal challenge from watchdogs like us, the residents have no guarantees anything will change.

This time the email problem pertains to Bloom Energy—a Silicon Valley energy company that produces natural gas-powered fuel cells—lobbying for a last-minute exemption to the city’s landmark natural gas ban.

Environmentalists saw the natural gas ban as a historic win toward addressing climate crisis. Publicly traded Bloom Energy saw it as a major impact on its future and sent in the cavalry: Guardino and other high-powered lobbyists. They argued facilities like hospitals, labs, dialysis and data centers needed electricity more reliable than PG&E.

Guardino, the former CEO of the Silicon Valley leadership Group and close friend of Liccardo, helped recraft the bill’s language. We learned of Guardino’s unchecked influence only after the city released records a year after two requests for emails related to Bloom Energy.

The San Jose City Council voted for the policy with the Bloom Energy exemption and the climate advocates were livid.

As investigative reporter Tran Nguyen combed through Liccardo’s emails under another records request, she found correspondence between Liccardo and Guardino that showed Guardino’s company helped write the language that ended up in the policy. The city failed to previously turn those records over.

Guardino also sent emails to nine councilmembers—including Liccardo—on the day of the Dec. 1, 2020 vote. Those emails were never produced by the city, despite numerous requests.

This is why we are taking a risk, picking up our slingshot and going to battle with the giant. How a city governs is the people’s business and people are entitled to that information. By calling this behavior out, we hope to change the way San Jose City Hall does business and inspire change throughout our state.

Moryt Milo is San José Spotlight’s editorial advisor. She has more than 20 years of experience in Silicon Valley journalism, including as editor for the Silicon Valley Business Journal. Contact Moryt at [email protected] or follow her at @morytmilo on Twitter. Catch up on her monthly editorials here.