Santa Clara County violated state law, could face lawsuit

Santa Clara County District Attorney Jeff Rosen is demanding the Board of Supervisors nullify and revote on its appointment of a new county executive, saying the decision—which happened behind closed doors—violated the state’s transparency law.

In a letter sent to all five supervisors on Thursday, Rosen said the board twice violated the Brown Act, which requires public access to government meetings. The board failed to disclose to the public ahead of a closed session on Oct. 17 that it was considering appointing a new executive to replace CEO Jeff Smith, who’s retiring on July 1, 2023. The board broke the rules a second time when it failed to immediately report its vote to appoint County Counsel James Williams to the position at a public meeting on Oct. 18.

“To maintain the public’s engagement as much as possible,” Rosen wrote, “the Brown Act requires that topics for discussion in a closed session be described beforehand in a publicly available agenda so that community members can offer public comment on them. The Brown Act also requires the prompt public reporting of any action taken during a closed session.”

The DA’s letter came days after San José Spotlight’s exclusive reporting on one of the Brown Act violations, informing the board it has 30 days to remedy the violations, or the DA would sue the board for breaking the law.

“Plainly, this does not alert the public that the board would be considering, and might even appoint, the next county executive,” Rosen said in the letter. “Without fair notice, community members—who later proved eager to weigh in—were unable to offer their comments prior to the closed session. This was a violation of the Brown Act.”

At the Nov. 1 meeting, when the public first heard about Williams’ appointment, supervisors repeatedly said they unanimously voted to pick the new county CEO on Oct. 17, which was validated in a county document.

Supervisor Susan Ellenberg previously told San José Spotlight the board misspoke, adding the action taken in closed session on Oct. 17 was only an authorization for some supervisors to meet with Williams and negotiate his employment agreement.

On Friday, Ellenberg acknowledged the DA’s letter and vowed to remedy the violations. The board is scheduled to meet in closed session Monday to discuss the letter.

“I’m looking forward to the (board) meeting on Tuesday when the board will have the opportunity to clarify our statements and actions and take whatever measures are legally necessary to ensure that we are and remain in compliance with all applicable laws,” Ellenberg told San José Spotlight.

Williams’ appointment has ruffled feathers throughout Silicon Valley. News about his appointment came days after Smith announced his retirement. 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.

The board will discuss Williams’ appointment and contract again at its Tuesday meeting.

Learn how to watch or participate in the meeting.