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December 11, 2023
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After discipline decision, First Amendment advocate sets sights on Los Gatos

ACLU says town's censure of Planning Commissioner was meant to ‘chill’ free speech

The American Civil Liberties Union of Northern California says Los Gatos’ censure of a Planning Commissioner—who wrote to the California Department of Housing and Community Development in November about a housing-related referendum that upended plans to increase residential density in town, then was chastised for her use of language in the email—violated her free speech rights.

It’s now demanding answers about how the process to punish Kylie Clark played out and has asked the municipality to reverse its formal reprimand—noting it appears Los Gatos didn’t follow its own procedures in writing her up, allowing the public to lambast her and then ordering her to counseling.

“Indeed, these disciplinary measures were specifically designed to chill future speech and to force Ms. Clark to conform her communications to the expectations of her assigned ‘counselors,’” Shilpi Agarwal, the legal director of the ACLU Foundation of Northern California wrote in a March 1 letter to Councilmembers. “The Town Council neither sought outside legal counsel, as is required by its Code for any violation deemed ‘major,’ nor did they handle the matter in private, as is called for with complaints that are deemed ‘minor.’”

On March 2, Mayor Maria Ristow acknowledged Council had received the letter from the ACLU a day earlier. She said she will be working with staff to better understand the appropriate response.

The ACLU’s missive follows a particularly contentious meeting convened in Los Gatos, Feb. 15, where local residents accused Clark of racism for describing the proponents of the referendum as “a few rich, white anti-housing men,” and the Council was called racist by a woman with a Trump shirt on as she was kicked out for being disruptive.

During public comment, referendum organizer Jak Van Nada said the letter was evidence of prejudice and called for her removal—something that was discussed at the meeting—and said though Clark had apologized for the controversy, she’d never apologized to him.

And while Clark offered a more extensive apology to people who felt harmed by her word selection, a personal apology to Van Nada or any of the other referendum organizers was not forthcoming.

One resident even suggested getting a group of “‘rich white men’” together to work on ousting members of the current Council if they didn’t punish Clark harshly enough.

In its letter, the ACLU said Los Gatos appeared to be shirking its responsibility to have a full accounting of its exclusive, racially-segregated history and to allow for a complete debate about how to allow more homes to be built in the community.

“California’s housing crisis has engendered much debate and discourse among the public; so too has the varied response by municipalities and towns to California’s statewide housing plan,” Agarwal said. “Ms. Clark, in her November 18 email to HCD, voiced concern about a referendum undermining a Los Gatos housing plan that the Town Council had recently approved; she also noted the racial and economic issues at play.”

And while Clark did mention she was on the Planning Commission, she made it clear her sentiments were her own, she added.

“In expressing her personal thoughts to HCD, Ms. Clark was clearly opining as a private citizen on a matter of public concern,” she said. “Whether her comments were ‘constructive’ or ‘respectful’ in the eyes of others is beside the point; they were protected speech.”

In fact, the First Amendment expert said, a public body is only allowed to curtail someone’s free speech rights in the case of serious violations, noting that courts have even decided calling for a coup, using racial slurs and complaining about race-based hiring policies are all protected actions.

“Here, the Town Council has not expressly identified any clear interest that would overcome Ms. Clark’s presumptive right to speak on politically charged issues of housing,” Agarwal said. “Instead, the Council decided to impose discipline based on the mere finding that, through the contents of her November 18 email, Ms. Clark violated a ‘code of conduct’ that applies to her voluntary service as a Planning Commissioner.”

And the Town didn’t even follow its own Code in disciplining Clark, she said, adding undefined terms in a Commissioner’s Handbook about how the volunteer officials are to behave don’t explicitly say they can’t reference race or socio-economic status, or that they could be disciplined or removed for failing to use “constructive” language in personal communications.

The ACLU has now filed a public records request to find out if the Town has censured anyone else, what happened when other complaints about so-called “non-constructive” language have come in and all documents related to the discipline of Clark—including the ones that never made it to Council.

Drew Penner
Drew Penner
Drew Penner is an award-winning Canadian journalist whose reporting has appeared in the Globe and Mail, Good Times Santa Cruz, Los Angeles Times, Scotts Valley Press Banner, San Diego Union-Tribune, KCRW and the Vancouver Sun. Please send your Los Gatos and Santa Cruz County news tips to [email protected].


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