What appears to be a split vote taken weeks ago behind closed
doors resulted in the hiring of the city’s new police chief, but
the vote’s legality remains up in the air.
What appears to be a split vote taken weeks ago behind closed doors resulted in the hiring of the city’s new police chief, but the vote’s legality remains up in the air.
Council members and City Administrator Jay Baksa cannot agree whether the body actually voted during a closed session Dec. 17 or merely took an informal straw poll on Turner’s application. But by some accounts, the council voted 4-3 to affirm Baksa’s selection of Denise Turner, a chief with a 26-year career at the King County Sheriff’s Office in Seattle.
The council also voted to tell Turner of the split vote along with the job offer, and while unanimity would have been nice, Turner said she is up for the challenge: “Hopefully over time I can win over the hearts and minds of all the elected officials,” she said.
When Turner was notified, though, the public was not. Concern centers around the timing of Turner’s offer because it followed the second closed session Dec. 17, after which Mayor Al Pinheiro did not report that any action had been taken. State law under the Brown Act permits closed sessions when it comes to legal and personnel matters, but it also requires the immediate reporting of nearly all votes taken during a closed session.
Any closed session vote to direct Baksa to hire Turner deserved prompt reporting, according to Terry Francke, counsel for Californians Aware, a nonprofit advocate for open government. The hiring of Turner is an action that resulted from a closed session decision, and “the public is not interested only in those things which are necessary or required, but the public is interested in what the council, in fact, does,” Francke said.
But Baksa and Pinheiro maintain that this point is moot because no vote was ever taken during closed session – only an informal straw poll of council members, they said.
*”If there was anything that needed to be reported it would have been reported,” Pinheiro said. “(The public) will get the information as to what is going to happen.”
Baksa agreed.
“I was basically saying, ‘Here’s the interview path we traveled and here’s where I am in this decision-making process,'” Baksa said. “I never went in and said, ‘You are giving me formal consent,’ but did people voice opinions? You bet.”
But Councilman Perry Woodward said he thought he was doing more than opining when he raised his hand during the vote.
“My understanding is that we took two votes in a closed session,” said Woodward, referring to the first split vote to direct Baksa to hire Turner and then the second vote to have Baksa inform her that the council was split on her selection. At least two council members did not vote for Turner, but an exact vote breakdown was not available because not all the council members agreed that there was even a vote to begin with. Not Woodward, though.
*”It was presented just like any other vote we’ve taken in closed session. There was no mention that it was not a vote,” Woodward said. “This has created a very awkward situation for council members because we’re told in closed session not to talk about this, but then they come out with a press release that’s only half the truth, and we’re being told not to talk about it.”
Councilman Peter Arellano was more than happy to talk about his decision to support Turner, though, and Councilwoman Cat Tucker said Turner was “one of the ones I voted for.”
None of this would be an issue if Woodward’s proposed sunshine law was on the book. It aims to supersede the Brown Act, and one way it would do so is by mandating that closed sessions be video-taped so that the public can make sure nothing inappropriate occurred after the closed session concludes.
“I wish we had a video tape of the session because there would be no dispute,” Woodward said. “All this seems like semantic quibbling.”
Councilman Craig Gartman said that there was no reportable action taken because it was not a formal decision, yet it was a kind of decision.
*”It was a vote, but not an official vote,” Gartman said. “It was a straw poll to see what the feel is.”
Baksa, who retires today, stressed that there was no vote behind closed doors and said the only vote is the one scheduled for Jan. 22, which will fulfill a requirement in the City Charter for Baksa to receive council approval before appointing any department head.
For this decision, the Gilroy Police Department’s union, the Police Officers Association, also chimed in. The POA president at the time, Jim Callahan, sent a letter to the council Dec. 10 weighing the pros and cons of Turner and the two other finalists at the time: Morgan Hill Police Commander Joe Sampson and San Jose Police Department Deputy Chief Donald Anders.
The POA said it would be fine with Anders or Turner, but not Sampson. Callahan cited Turner’s family’s law enforcement background – both her father and older sister were career officers – before writing, “I suspect that by her going out of state, it will allow her to double dip on salary and retirement. Frankly, I have no problem with this motivation … I understand money.”
Callahan went on to write that the department needs more direction and not “the same ole’ thing,” which would happen with Sampson’s selection. “We have spoken with members of the (Morgan Hill Police Department) who summed it up by, ‘We’ll be happy to see him go.’ ”
With Sampson and Anders out of the picture, Turner just has to pass her background check, drug test and psychological and medical evaluations. Whatever happened Dec. 17, Councilwoman Tucker said it is important for the body to welcome Turner in unison Jan. 22, when the council is expected to formally approve her hiring.*
