Cupertino Councilman Barry Chang May Have Run Afoul of the Brown Act

Barry Chang saying something inappropriate in public is hardly earth-shattering news, but this time the Cupertino councilman may have actually broken the law. Chang, who’s running for Paul Fong’s termed-out State Assembly District, showed up at the Feb. 5 Saratoga City Council meeting to rail against the Highway 85 express lane construction. In the course of a two-minute diatribe about how the project needs an independent environmental review—a valid point, we might add—he mentioned a lawsuit initiated between the city of Cupertino and the Valley Transportation Authority, the agency heading the highway-widening project. There’s just one issue—discussion of that lawsuit was held in closed session a day prior, which makes it off limits for public comment. Oops. In his defense, Chang did preface his statements by warning the council he’d come down with a high fever and it’s possible he mixed up his talking points. Chang has made the $170 million widening project a focus of his campaign. But Chang’s public faux-pas on environmental issues are well-documented. In late 2011, County Executive Jeff Smith sent him a written reprimand for his views on the Permanente Quarry. According to the latest campaign filings, Chang raised just $37,250 last year, while Evan Low—the about-to-term-out mayor of Campbell and an opponent in the Assembly race, raked in roughly $236,000 in 2013. Fly couldn’t find financial statements for Republican candidates Chuck Page, a Saratoga Councilman, and YouTube sensation Michael Hunsweck, but both announced last year that they plan to run in the district that spans throughout west San Jose, Cupertino, Campbell, Saratoga, Los Gatos and Monte Sereno.

The Fly is the valley’s longest running political column, written by Metro Silicon Valley staff, to provide a behind-the-scenes look at local politics. Fly accepts anonymous tips.


  1. Hello, Mr Fly, Barry Chang speaking out on the Hwy 85 project is sure to attract attention, but I’m not sure how any law has been broken.  Concerned citizens were invited to speak before the Cupertino City Council.  I was one of the attendees.  The Cupertino City Council was quite open and interested in our public comments.  I also attended the Saratoga City Council meeting the following day.  The meeting is in the agenda and minutes.

    Mr Fly, while it is doubtful that there’s any violation of the Brown Act, I’d like to thank you for helping to raise public awareness of the Hwy 85 expansion.  This is sorely needed!

    With future growth happening in the South Bay, I personally think it is worth having more discussions of rail.  When I spoke with John Ristow, Chief Congestion Officer for VTA, he said he hasn’t been asked by the cities along the 85 corridor for a light rail project.  Personally, I don’t see how spending $170M adding more lanes on a segment of 85 without addressing congestion at the entrance and exit points is going to help solve congestion.  Paving over the space reserved for light rail with an additional HOT lane seems to imply that there’s no hope for light rail.  Also, the revenue potential of HOT lanes seems rather limited.  I think public funds are better spent on extending light rail service from where commuters live in the South Bay to where they work around the Google and Facebook.  Also, a stop at DeAnza College would surely take cars off the road.  It seems to me that there would be guaranteed ridership to DeAnza College.  I’d like VTA to at least study the possibility of light rail on 85.  It seems they haven’t done that recently.

    It is difficult to expand freeways further.  The solution is less cars, not more cars on 85.  Throwing away a right-of-way reserved for light rail seems short-sighted.

    I’ve read VTA is focused on the BART extension to Berryessa.  It is such a welcome sight to see all the construction after so many years of delay.  I wish BART would arrive in the SJ Airport and downtown, but one step at a time.  Silicon Valley leads the world in technology.  Having a great transit system is something we can do!


    John Chen
    Saratoga Resident along 85

  2. Dear Mr. Fly,
    I thank you for giving me the chance to clarify some of the rumors in your article.

    First, your headline is misleading!  I did not violate the Brown Act; I just stated well-known facts during my 2 minutes of public comments at the Saratoga City Council meeting. I did not mention a lawsuit initiated between the city of Cupertino and the Valley Transportation Authority.  I did say “initiation of litigation” which was publicized on our agenda.  You are wrong and liable for stating what I did not say.  Please review the recorded video and Cupertino City Council agenda carefully before you make any further misleading insinuations.

    Regarding the VTA’s proposal to expand Highway 85 by adding two toll lanes, this project will not solve traffic congestion in the long term.  Instead, it will create new problems: more single-occupancy cars on the road, bottlenecks becoming gridlock, and increased pollution and noise.  The VTA itself admitted that this project is only a temporary solution and will ultimately hinder future Light Rail installation.  Why do we want a bad short-term fix to prevent a better long- term solution?  This proposal is a waste of taxpayers’ money.  The VTA estimates the cost to be at least $170 million.  Where is the fiscal responsibility? 

    Furthermore, the VTA’s proposal will breach valid Performance Agreements signed in 1988 -1990 with Cupertino, Saratoga, Campbell and Los Gatos.  These agreements stipulate that “Route 85 through the City will be a 6-lane facility with a median width of 46’…” and the “…center median is reserved for mass transportation…light rail in the center median….”  The VTA cannot unilaterally breach these contracts.

    In terms of my campaign for State Assembly, District 28, you are right that I did not raise the same amount of money that my opponent did.  As you probably already know, money cannot buy votes.  Please look at the last California gubernatorial race in 2010.  Besides, I am the only candidate who attended both VTA’s and Caltrans’ open houses on the Highway 85 Expansion Project on January 14 and 16. I have been focusing on getting the job done right for my constituents.

    You are also right that I had a high fever when I attended Saratoga City Council meeting.  I could have easily excused myself. However, this issue is so important to my constituents and Silicon Valley’s economic growth that I endured my headache and high fever.  So I waited until the public comment period was up, made my quick 2-minute comments and left after 10:30 PM that night.

    May I correct you regarding to County Executive Smith’s letter? The disagreement between Mr. Smith and me was not over my views on the Permanente Quarry.  We resolved the disagreement between us in his second letter.  Are you aware of that?

    Lehigh Southwest Cement Plant/Permanente Quarry has received numerous notices of violations (NOVs) from the EPA, California Regional Water Quality Control Board, U. S. Department of Labor, Office of Mine Reclamation, Department of Conservation, State of California and Santa Clara County for violations of the Federal Clean Air Act, Federal Clean Water Act, Federal Labor laws and the California State Surface Mine and Reclamation Act. I am the only candidate who has been working hard since 2007 to bring Lehigh into compliance with the laws and to reduce their pollution.

    I have no intention of making any earth-shattering news.  I just hope that our government will do the right things to serve people well.  We deserve it.  Don’t you agree?  Thanks.

    Barry Chang,
    Chair of Bay Area for Clean Environment,
    Cupertino City Council Member and also
    Candidate for California State Assembly, District 28

      • Josh,

        I sometimes have a hard time understanding Barry, especially when he gets worked up.  Maybe Barry wasn’t supposed to say anything about the nature of the pending litigation, but I don’t think a reasonable person would say that Barry said anything about a decision that was made in closed session.  I really think he was describing the nature of the closed session and not its contents.

        • I agree.  I think the intent of Barry’s statement at the Saratoga City Council was to inform the public so we can participate better.  The intent of the Brown Act was is to address issues with secret meetings and workshops by locally elected officials.  I like sunshine! 

          Josh, I think that it is good that we scrutinize the actions of our public officials.  Keep up the good work there, but, with regards to the topic of this article, it is time to move on.

    • I can’t speak to whether Mr Chang violated the brown act, but I am pleased that Barry Chang is championing these issues. Adding express lanes to Hwy 85 won’t solve the congestion problem, it will just allow those who can afford to pay the toll to get to work and home a little quicker. Those who can’t, will have to inch along during commute times wishing there was an alternative. There is! Let’s build a light rail line down the middle of the 85 as it was envisioned 25 years ago. The longer we put off Mass Transit options the more expensive they are to build. If this right-of-way is forfeited to vehicle traffic we can kiss the dream of a light-rail line in this corridor goodbye. The line could serve Kaiser Medical Center in San Jose, West Valley Community College in Saratoga, Netflix in Los Gatos, De Anza Community College and the near by Apple campuses in Cupertino, and Google, Microsoft and other high tech companies in Mountain View. What we need are visionaries to make these large public projects happen. The Silicon Valley Manufacturing Group should get behind this transit option as it did to extend BART to San Jose and Santa Clara, which is currently in planning.

      Another disturbing aspect to VTA’s plan is that no where on it’s website or in the FAQ about this project is there any mention that this right of way was set aside for light rail. The public has forgotten that this was the goal, Barry Chang is the only candidate for State Assembly that is keeping his eye on the goal. Light Rail is cleaner, quieter, more reliant, safer and can move way more people up and down this corridor than adding express lanes, and we’ll all get to work and home a little quicker.

      Paula Wallis,
      Cupertino resident along 85

  3. What’s Assemblyman Paul Fong stand on this?  Can he do something before he moves on to the San Jose City Council?  Actually the far corner of San Jose’s District 1 is split by Highway 85 too.

    • I will try to contact Assemblyman Fong.  He seems quite busy with various projects as I can see from his web site.  Hope he will respond regarding the proposed Hwy 85 expansion.

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