San Jose Mayor Matt Mahan, Vice Mayor Rosemary Kamei and the entire city council – Councilmembers Sergio Jimenez, David Cohen, Peter Ortiz,Dev Davis, Bien Doan, Domingo Candelas, Pam Foley, and Arjun Batra – this afternoon called on District 3 Councilmember Omar Torres to resign immediately “in light of information revealed in an ongoing police investigation into his alleged conduct.”

“We all live in a nation in which we are innocent until proven guilty — that applies to every single person in our city, including those in elected office,” the joint statement read. “We are in the midst of an active and ongoing investigation, and as our police department uncovers the truth, that truth will be shared with the community.”

“Given the appalling nature of Omar Torres’ own words and the allegations against him, we believe that he has lost the trust of the community and is no longer able to effectively serve the residents of District 3,” the statement concluded. “As his own words call into question his ability to lead and make decisions on the behalf of the community, we are calling on him to resign.”

It was unclear how and when the council members reached this decision.

Omar Torres’ attorney, Nelson McElmurry, last week affirmed that the first-term council member has engaged in sexually explicit social media activities, which were revealed in graphic detail in an affidavit filed Oct. 1 in connection with search warrants on Torres’ property.

The messages contained in electronic devices seized in police warrants last month in Chicago – were described by McElmurry as ”private communications between adults of age that involved talk of outrageous fantasy and role play.”

The affidavit filed with the Superior Court in San Jose on Oct. 1 included “evidence to show a felony has been committed” by Torres, specifically possible crimes involving “oral copulation of a minor” and “having an abnormal interest in a child,” both felonies.

Torres has maintained his innocence of any crime.  “I have nothing to hide,” he said in an online post on Oct. 4. He has not been charged with a crime. Police said a criminal investigation is continuing.

Torres has not attended any City Council or committee meetings or public events since the revelations.

The fallout from the shocking revelations of possible sex crimes by a City Council member and the sexually explicit content cited in the affidavit stunned City Hall and prompted the San Jose police officers’ union to call for Torres to resign and deterred Torres.

The content of the communications that prompted police investigations were obtained in warrants served Sept. 20 by the FBI and Chicago police on the electronic devices of the man with whom Torres had been communicating for several years. Chicago police seized three iPhones, an iPad, iWatch and an HP laptop and turned them over to San Jose police, according to the affidavit.

Subsequent examination of the content in the devices beginning on Sept. 24 by San Jose police said “Torres was paying [the man in Chicago] for masturbation videos and nude photos,” according to the affidavit.

Torres said he was interviewed by San Jose Police on Oct. 2 about the messages. A week earlier he had told police he was the victim of an extortion plot.

The affidavit filed in San Jose supported a warrant signed by Magistrate Griffin Bonini to place a GPS tracking device on a 2019 Mazda CX-9 owned by Torres for 30 days that will be monitored by police.

Torres told police he was the victim of extortion – that  he had sent the man in Chicago approximately $22,000 to prevent any reposting of the nude images, or contacting Torres’ staff or his partner. The Chicago man told police he had begun the online relationship with Torres “approximately 3-4 years” ago, when he was as young as 17. He also said that Torres sent him “a photo of a younger kid that Torrest said was autistic,” followed up by comment from the council member about the minor’s genitals. He said Torres asked him “about finding minors.”

Torres, police said, initially said his name was “Oscar,” who had a son with autism. In another text, Torres describes the genitals of an 11-year-old autistic boy he says is his son. Torres in fact has no children.

Also in the 2022 text, Torres tells the man he will pay for a video of the man having sex with a Mexican or Latino male, then offers an account of a sexual encounter, using explicit language. The two men recount purported sexual encounters and describe genitals in graphic detail.

The affidavit includes nearly four pages of transcripts of the graphic text conversations between Torres and the man in Chicago.

The San Jose Police Officers’ Association, which led the calls for Torres to resign, with an Oct. 10 statement, released this statement today:

“Today, several San Jose city elected officials called on their colleague, Councilmember Omar Torres, to resign. Although we commend this action, we are left wondering:  what took them so long? After reading Torres’s self-admitted text messages seeking sex with underage minors and participating in an extortion scheme to keep his “fantasies” and “role-playing” about minors quiet, when are other leaders and organizations going to demand Torres resign?”

Tasha Dean, chief communications and marketing officer for the City of San Jose, said the joint statement by the mayor and council complied with the Brown Act because it was not focused on “a council action.”

There is no available record that the mayor and council discussed Omar Torres status or the police investigation

“ The Brown Act does not apply here,” she said. “This is not a formal resolution, it is a statement. The issue of his resignation is not a council action.”

According to the California Attorney General’s Office, “The Brown Act prohibits serial meetings – a series of communications between individual members of the body, including through intermediaries or other means (i.e., email), that result in a majority of the members discussing, deliberating, or taking action on a matter of agency business.”

“Beware of “daisy chain” (i.e., member A speaks to member B who speaks to member C) and “spoke and wheel” communications (i.e., member A speaks to members B and C).”
“The Brown Act applies to any form of communication – whether it is in-person, over the telephone, by email, or through other online and social media sources,”

The Attorney General’s office warns that members of public bodies “should refrain from communicating with one another through email.” Even the use of “reply all” feature in email “could constitute a violation of the Brown Act if it included a majority of the members and contained information that was within the body’s subject matter jurisdiction.”

The office further warns that unless one of a handful of special statutory exceptions to the Brown Act applies, “the matter must be conducted in public regardless of its sensitivity.”

David Snyder, executive director of the First Amendment Coalition, said the process of obtaining unanimous agreement to the statement on Torres “sounds like a serial meeting violation.” The Brown Act, he explained, covers “a discussion of anything within the council’s jurisdiction – it doesn’t matter whether or not it’s an agendized item.”