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HomeMy WebLinkAboutItem 21 - Discuss and Provide Direction on Whether to Pursue Censure of Councilmember Hernandez CITY COUNCIL ITEM www.santa-ana.org/cao Item # 21 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report October 7, 2025 TOPIC: Discuss and Provide Direction on Whether to Pursue Censure of Councilmember Hernandez AGENDA TITLE Consideration of Possible Censure of Councilmember Hernandez RECOMMENDED ACTION There is no staff recommendation. However, based on direction given by the City Council and reported out of closed session, this item is being presented for the Mayor and City Council of the City of Santa Ana, to review and discuss the process for censure arising from allegations made against Councilmember Hernandez. If appropriate, the Mayor and Council may provide further direction. GOVERNMENT CODE 484308 APPLIES: No EXECUTIVE SUMMARY BACKGROUND The City Council received complaints alleging that Councilmember Hernandez defamed, harassed, and retaliated against certain officers of the Santa Ana Police Department. One of the complainants filed a tort claim on August 18, 2025 alleging violations of the City's Charter and other claims. The City Council discussed this matter in closed session based on the complaints and tort claim. At the direction of the Council by a vote of 6-0, with Councilmember Hernandez absent, the Council asked that the issue be put on a Council Meeting agenda for consideration. DISCUSSION A censure is generally understood to be "an official reprimand or condemnation; an authoritative expression of disapproval or blame." (Black's Law Dictionary (10th ed. 2014).) The City Council has authority to censure an individual Council Member. (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 347-348.) A censure is generally adopted by resolution and represents the opinion of a city council or other public body, but does not levy a fine, suspension, or other penalty. While there is no statute directly addressing censure, many local legislative bodies have adopted resolutions condemning inappropriate behavior and violations of policies and laws. A censure is one way of Consideration of Possible Censure of Councilmember Hernandez October 7, 2025 Page 2 distancing the public agency from behaviors that interfere with the agency's ability to conduct the public's business and protect its employees. While censure does not remove an elected official from office, it may serve an important purpose by stating to the public that certain behavior is unacceptable to the other council members. It is a form of self-policing for elected officials. An elected official who is subject to possible censure is entitled to due process with notice and an opportunity to be heard. This process must take place in open session as the California Attorney General has issued a written opinion concluding that complaints against elected officials may not be discussed in closed session. (61 Ops. Cal. Atty. Gen. 10 (1978).) Therefore, if the City Council wishes to censure Councilmember Hernandez, the following process is recommended: 1. A censure discussion should be placed on the agenda for a City Council meeting. (This is being done with this agenda report). 2. The Council should outline reasons for the consideration of the censure. The Council should also provide for notice as to when the City Council intends to hear the matter. (This should be done at the Council meeting wherein this agenda report is presented). 3. The City Council should further direct that the Councilmember receive individualized notice by mail. 4. The censure should be scheduled for deliberation in open session, and not in closed session. (61 Ops.Cal.Atty.Gen. 10 (1978).) 5. Councilmember Hernandez should be afforded an opportunity to be heard. However, formal rules of evidence do not apply, including the right to cross examination. (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1809.) 6. After deliberation at an open session where Councilmember Hernandez is afforded the opportunity to be heard, if it is the Council's direction to censure, the City Council will need to adopt a resolution containing findings as to why the City Council believes a censure is appropriate. Like resolutions generally, a Resolution of Censure must be adopted by a majority vote of the City Council. Examples for the consideration of a censure could include: 1. Illegal disclosure of closed session information in violation of the Brown Act. 2. Improper use of city email and city communications. Consideration of Possible Censure of Councilmember Hernandez October 7, 2025 Page 3 3. Improper interactions with City employees. 4. Breach of fiduciary duty. A censure may also include consequences or restrictions. Examples include, removal from committees, loss of travel budgets, limiting access to staff, etc. The consequences or restrictions should also be related to the inappropriate behaviors. For example, if a councilmember has engaged in behavior that exposes the City to liability from staff, the Council may want to limit access to staff members. If a councilmember's behavior exposes the City to ridicule or demonstrates violations of law or policy, the Council may want to remove the councilmember from commission or regional appointments. If the City Council decides to proceed, it should discuss the reasons for a censure so that the appropriate findings can be prepared and presented within the Resolution of Censure. This process of identifying facts to support findings should be conducted by the City Council and not staff who have a responsibility to serve all elected officials equally. The Council Members may want to appoint an ad hoc committee and/or direct staff to engage special legal counsel to guide the Council and proceed with the censure process, including preparation of the Resolution of Censure, should the Council decide to move in that direction. CONCLUSION The Mayor and City Council, of the City of Santa Ana, California, may discuss: 1) whether to begin the process for adopting a Resolution of Censure concerning alleged misconduct; 2) whether to appoint an ad hoc committee to schedule a hearing for consideration of censure; and/or 3) whether to engage outside legal counsel for this matter. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact to the City for the review and consideration of censure, unless the Council directs engagement of outside legal counsel in which case the costs are estimated to be $20,000 or less. Submitted By: Sonia R. Carvalho, City Attorney Approved By: Alvaro Nunez, City Manager