San Jose mayor picks defeated councilmember for key panel, raising questions

A last-minute decision by Mayor Sam Liccardo to appoint defeated Councilmember Lan Diep to a critical city commission has some community leaders crying foul.

The leaders also allege the mayor might have violated open meeting laws in the process.

As mayor, Liccardo is allowed to appoint three people to serve on the 23-member Charter Review Commission, which governs how the city operates. The commission was formed in September after a failed attempt by Liccardo to shift San Jose to a strong mayor system, which would extend his term by two years and give him additional powers to hire and fire city department heads. The commission will discuss changes to the city charter.

The City Council will vote on the appointments Dec. 15.

However, in a letter obtained by San José Spotlight that was to be delivered to the mayor and councilmembers before the appointments, community leaders urged the mayor to hold off and reconsider appointing Diep, who was voted out of office in November.

The letter was signed by representatives from the South Bay Labor Council, Minority Business Consortium, Asian Law Alliance, Silicon Valley Rising and Working Partnerships USA.

“As groups of leaders representing communities of color and working families across San Jose, we write urging the City Council to defer the proposed appointments to the Charter Review Commission until serious discrepancies can be addressed and the final appointments better reflect a fair, ethical and equitable process,” the group wrote. “Furthermore, we urge Councilmember Lan Diep to recuse himself from this vote, for the obvious conflicts of interest and potential violations of city and state policy around his appointment.”

Liccardo and Diep could not be reached for immediate comment.

A memo released Dec. 11 from the city clerk listed Diep as one of Liccardo’s three appointments. The others are former Mercury News opinion editor Barbara Marshman and Fred Ferrer, the chief executive officer of Child Advocates of Silicon Valley.

Diep submitted his application — which was missing information such as references — on Dec. 11, the same day the memo was released. Ferrer also submitted his on Dec. 11 and Marshman on Dec. 10.

The application period closed on Nov. 22 for council offices to make their appointments, according to City Clerk Toni Taber. Liccardo was given until Dec. 11 for his three citywide appointments.

Community leaders said among their concerns is the fact that Diep is leaving the City Council in two weeks. They also questioned if the mayor violated the Brown Act by possibly discussing the opportunity with Diep.

The Brown Act, California’s open meeting law, prohibits lawmakers from privately speaking to a majority of members of a legislative body about an item coming up for a vote. Liccardo was already in discussions about the strong mayor initiative — what’s called a Brown Act group — with Vice Mayor Chappie Jones and councilmembers Sergio Jimenez, Magdalena Carrasco and Maya Esparza. Diep was not in his Brown Act group.

Liccardo’s decision to appoint Diep and his application being filed on the same day “raises significant questions about whether in doing so the mayor and councilmember may have violated the Brown Act’s serial meeting prohibition,” the letter said. “The question of whether the Brown Act was violated in the run up to this appointment should be investigated by the City Attorney.”

City Attorney Nora Frimann said no such violation occurred.

“My office concluded that the Brown Act was not violated based on our understanding that Councilmember Diep was simply asked whether he would be willing to serve on the Charter Review Commission, and nothing further was about the matter was discussed,” Frimann said. “There is no financial or legal conflict that would require Councilmember Diep to recuse himself on this item.”

In addition to concerns about Diep’s appointment to the commission, some activists criticized the commission for not having enough Black representation and no labor representatives. Valley Water CEO Rick Callender is the only Black person being considered for the commission.

Walter Wilson, CEO of the Minority Business Consortium, said he sent Liccardo a message demanding representation from the Black community. He said the mayor has not responded.

“I sent the mayor a communication last week explaining that I thought it was a problem and he should try to resolve that with one of his open picks and he decided not to do that,” Wilson told San José Spotlight. “I told him I think he needs to pick an African American and I gave him a few names. And then he appointed Lan Diep.”

Wilson said the lack of voices from the Black community breaks a promise leaders made to include diverse perspectives on a commission that will make consequential choices that could impact the city for years to come. Liccardo’s spokeswoman Rachel Davis countered that the mayor appointed two minority leaders and a woman — Diep, who is Vietnamese, Ferrer, who is Latino and Marshman, who is a woman.

In addition to deciding how the city changes its governance, the commission will evaluate 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.

It will also consider additional “measures and potential charter amendments, as needed, that will improve accountability, representation, and inclusion at San Jose City Hall,” city documents say.

“For the mayor to ignore that is disappointing and it says a lot about who he is and whether he thinks it’s important to have real representation on this commission,” Wilson said. “You would think that we are in the middle of the George Floyd era and he would recognize that in his choice especially after he’s been told — there’s a problem here.”

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

Editor’s Note: Valley Water CEO Rick Callender and Working Partnerships USA executive director Derecka Mehrens serve on San José Spotlight’s Board of Directors.