Public records have already established that former Milpitas City Manager Tom Williams tried to spend taxpayer money on his personal legal fees. They’ve shown that he threatened to sue his own city for $1 million in damages. And they’ve detailed the alarming allegations of harassment, retaliation and ethical lapses leveled against him by former department heads.
But there’s a trove of documents that Williams is still trying to keep secret a year after reporters first requested them under the California Public Records Act (CPRA) and seven months after he resigned amid revelations of misconduct. Those records, which pertain to his job performance, were blocked from release after Williams sued the city in April 2017 using a relatively new legal tactic known as a “reverse CPRA,” a judicial construct that thwarts the public’s constitutional right to access.
Now, it’s up to the court to decide whether the public’s right to know what those records contain outweighs Williams’ right to privacy. Santa Clara County Superior Court Judge Sunil Kulkarni heard from both sides on Monday and expects to issue a ruling within the next three months.
The case would have wrapped up sooner had it not been reassigned. Judge Aaron Persky, who heard oral arguments in October, had to recuse himself after Milpitas Councilman Anthony Phan and Mayor Rich Tran endorsed a campaign to recall him from the bench.
Attorneys from the nonprofit First Amendment Coalition, which jumped into the fray as part of a broader effort to fight reverse CPRAs, re-argued in Monday’s hearing that the public is entitled to records that show the extent of Williams’ alleged misconduct and how Milpitas officials responded to it.
The city, which is being sued by the free-speech coalition, actually agreed on that point.
“We believe they should be released,” Milpitas attorney Christina Hickey told Kulkarni.
Williams’ lawyer, Sean Gentry of Ad Astra Law Group, countered that the public knows enough already. Further, he said, the release of potentially “embarrassing” information could hurt the former city manager’s chances of finding another job, “which is our concern in this case.” He said Williams now works in the private sector and has no intention of applying for another government position.
While Williams has indeed worked for a land-use consulting firm for the past several months, a source familiar with the situation told San Jose Inside that he’s applying for the city manager’s post in his hometown of Millbrae. The city has reportedly been making phone calls to conduct reference checks.
If that’s the case, it would certainly support the First Amendment Coalition’s position that the public and prospective employers in the public sector should have greater access to Williams’ personnel records.
In the 10-plus years Williams served as Milpitas’ top bureaucrat, the city grappled with an inordinately high turnover rate among department heads. Many of them told San Jose Inside that they left because of Williams’ hostile behavior, which wound up costing taxpayers millions of dollars in recruitment and training costs and payouts to settle claims of retaliation, discrimination and harassment.
Last year, after a new mayor and some new council members took office, Williams’ bellicose behavior apparently got the better of him. The city manager threatened to sue Mayor Tran for publicly criticizing his job performance, and tried to get the taxpayers to pick up the tab for some $37,000 he owed to his attorneys at Ad Astra Law Group.
When San Jose Inside (through parent publication Metro Silicon Valley) and the Milpitas Post asked for records related to Williams’ job performance and legal dispute, the city was about to grant the request. But a day before the deadline to release them, Williams sued his own employer to prevent the disclosure. His claim also named both newspapers and the individual reporters who sought the documents.
Julie Bauman, who argued on behalf of the First Amendment Coalition on Monday, said the lawsuit is “a perfect example of the problem” with reverse CPRA tactics.
“It restrains the city from producing documents, even though the city wants to hand them over,” she told reporters outside the courtroom.
Nothing in the state’s public records law allows so-called reverse CPRA actions, according to the First Amendment Coalition. But in 2012, the California Court of Appeal ruled in Marken v. Santa Monica-Malibu Unified School District that a third party can prevent a public agency from disclosing records sought in a CPRA request.
Since then, journalists have increasingly come up against reverse CPRA actions, which have been described as legal loopholes that undermine the intent of California’s transparency laws. The Los Angeles Times and the Sacramento News & Review are currently battling separate cases that involve such injunctions.