Former Los Gatos town attorney condemns commissioner’s censure

In a text exchange with the mayor, Rob Schultz said he was ‘shocked’ by the public hearing.

Los Gatos’ former town attorney said the disciplinary process used against a planning commissioner last month went against the town’s code of conduct, adding another criticism to the process as the American Civil Liberties Union of Northern California announced they now represent the commissioner in question.

Rob Schultz, who served as Los Gatos’ attorney from 2013 to 2021, said in a text message to Mayor Maria Ristow obtained by this newspaper through a public records request that his replacement, Gabrielle Whelan, and town staff “didn’t follow the procedures as set forth in the code of conduct,” and in doing so, set a risky precedent.

“Just my opinion, it should have been a minor violation with private counseling like we did on many other times for far worse things,” Schultz said. “Not sure what Gabriel (sic) was thinking by not following the procedure set forth in the code of conduct.”

Schulz did not respond to requests for comment in time for publication.

Los Gatos Town Council censured planning commissioner Kylie Clark last month for using “divisive language” in a letter to the state. The censure drew criticism from the ACLU, which said the council violated Clark’s First Amendment rights and threatened legal action if the censure is not revoked.

A representative from the ACLU said the organization now represents Clark, and if they are unable to reach an agreement with the town, they will consider litigation.

“We were hoping our letter would resolve the issue, and it is disturbing to see the lengths the Los Gatos Town Council will go to silence conversations about race, wealth and housing construction,” ACLU legal director Shilpi Agarwal said.

In emails and texts between Ristow and town staff, the mayor said she “did not do (her) own research on this process,” and relied on the town staff to set the parameters for the disciplinary process.

“Did we truly make mistakes or skip steps here?” Ristow wrote in the email, which she said she sent out of “an overabundance of concern for Kylie’s rights.”

“In a difficult situation I wanted to make sure that we did not make any mistakes,” Ristow said.

In Schultz’s text exchange with Ristow, he said he was “shocked” that there was a public hearing at all.

“It’s a slippery slope when you start doing public censorship and admonishments,” Schultz said in a text message. “The code of conduct was written that way to make sure if you are going to publicly censure someone, you go thru with an extensive process. That’s why you usually find the violation minor, especially for 1st violation, and do private counseling.”

Whelan said she did not have a comment on Schulz’s statement, but said removing the censure is not up to her; it would require a majority vote by town council.

Town staff formed an ad-hoc advisory committee earlier this year that took a patchwork approach to determining the disciplinary process, using the town council’s code of conduct and the commissioner’s handbook as a model. The committee was composed of Whelan, Ristow, Town Manager Laurel Prevetti and Vice Mayor Mary Badame.

Los Gatos’ code of conduct calls for minor violations to be resolved privately, without a public hearing like Clark’s. Major offenses require outside legal counsel to review the facts before considering disciplinary action.

Clark’s offense fell in the middle, and the committee determined that while outside counsel wasn’t warranted, her comments required more than private counseling.

In 2018, former mayor Steve Leonardis was disciplined for a minor violation privately for comments he made in an email to a resident over a mural he painted on the side of his house, in which he threatened a lawsuit.

“Personally I think you are a pretentious snob for writing this. You are ‘embarrassing and offensive,’” Leonardis said in the email to the resident, obtained through a public records request. “So mind your business and keep your opinions to yourself if you don’t want to spend all your home equity defending yourself in a lawsuit.”

After the Feb. 15 meeting when council voted to censure Clark, Schultz texted Ristow saying he was concerned with the precedent the vote set.

“Council basically agreed last night that council policies are just models and that staff can make a decision to follow them or make their own decision not to,” Schultz texted.

Clark sent a letter to the Department of Housing and Community Development last November in which she said “rich, white, anti-housing men” paid for and passed a referendum on the town’s plans for future housing growth.

Several members of the public complained to staff about Clark’s comments, saying she used “racist” and “biased” language against White men in Los Gatos and negatively represented the town.

“I guess I’m one of those rich white guys, too,” resident Ron Meyer said. “I want her removed. If she is not removed, next election we’ll vote to remove those representatives who will not honor the will of the people of Los Gatos.”