Menlo fire board member offered to exchange favors, says fire official Menlo fire board member offered to exchange favors, says fire official (April 24, 2002)

**Among D.A.'s questions: would such an offer be bribery, or political back scratching?

By Pam Smith

Almanac Staff Writer

Would a brief conversation that allegedly took place between a Menlo Park fire board member and the acting fire chief amount to a bribe, or would it be considered more of a "horse trading" offer _ I'll scratch your back if you scratch mine _ that politicians engage in all the time?

That's one question the San Mateo County District Attorney's Office can expect to face, according to a deputy district attorney, when it considers Acting Fire Chief Ed Greene's account of a conversation he said took place between he and Steve Kennedy, a member of the district's Board of Directors, March 23.

So far, Mr. Kennedy has declined to verify or deny that the conversation took place.

According to Mr. Greene, Mr. Kennedy offered to support his bid for the permanent fire chief's job if he in turn would support Mr. Kennedy's idea to donate a used fire truck to Afghanistan _ an idea many looked upon as "rather an odd suggestion," according to the fire district's attorney.

After Mr. Kennedy declined to respond to Mr. Greene's account, his four fellow directors voted April 16 to refer details of the situation to the San Mateo County District Attorney's Office to determine if an investigation or criminal charges are warranted. Mr. Kennedy recused himself from the vote.

"Nobody has accused Director Kennedy of anything illegal, except ... it is conceivable at least, that [the alleged conversation] might constitute a criminal offense," said Bill Esselstein, the fire district's legal counsel.

Mr. Esselstein emphasized that he is not an expert in criminal law.

In 30 years of practice, he said, "I've never come across anything like this."

At least one director said that if Mr. Kennedy agreed with Mr. Greene's account but apologized and acknowledged that such an offer was inappropriate, the matter might have been settled with an official expression of disapproval by the board.

"I would have been prepared to make a motion of censure and have left it at that," said Director Peter Carpenter.

"[The board] gave Director Kennedy opportunities to respond," via e-mail and in a public meeting, and so far he hasn't, board President Bart Spencer said last week.

Mr. Kennedy said when he got the first e-mail from Mr. Spencer, "I felt that I had been slandered."

"I felt that my words had been taken out of context," he said.

The e-mail went to the district's legal counsel and other board members, added Mr. Kennedy. It "pretty much destroyed my reputation and credibility."

Absent any response from Mr. Kennedy, directors said they had to refer the matter to the district attorney in order to maintain public confidence.

The district provides fire protection, rescue and emergency medical services for the cities of Menlo Park, East Palo Alto, the town of Atherton and unincorporated areas of San Mateo County.
Greene's account

Acting Chief Greene said that Mr. Kennedy approached him outside of a goal-setting workshop for the board and staff Saturday, March 23, and said he understood Mr. Greene intended to apply to be permanent chief. Mr. Greene, a 28-year employee of the fire district, said he replied that was his intention.

Then, he said, Mr. Kennedy said something like, "I would be happy to support your candidacy for the position if you support my efforts to send [firefighting] apparatus to Third World countries."

"I don't remember the exact wording," said Mr. Greene, adding that Mr. Kennedy might have said Afghanistan rather than Third World countries.

Although Mr. Kennedy has talked about sending a truck to Afghanistan for several months, no formal proposal has been submitted, so it was never voted upon, according to district staff. "I did not put it on the agenda because I knew it had little chance for passage," said Mr. Kennedy.

Mr. Greene said that in response to Mr. Kennedy's offer, he replied that he would never recommend spending public funds to send a fire truck to Afghanistan.

Mr. Greene related the story of the conversation to President Spencer at their weekly powwow the following Monday, he added.

"It's one of those things that you just can't get out of your mind," said Mr. Greene. "It seemed inappropriate to me."

Though declining to comment on Mr. Greene's account, in answering other questions via e-mail, Mr. Kennedy wrote: "I am a conversational cripple. ... I try very hard to avoid putting my foot in my mouth."

The district attorney's office had not received a submittal from the fire district by last Thursday, so it was too soon to say if a conversation like that alleged between Mr. Greene and Mr. Kennedy would constitute bribery, said Deputy District Attorney Sean Gallagher.

"It's possible that it falls under the bribery penal code statutes," but that's a very fact-intensive determination, he said.

Bribery is considered a felony rather than a misdemeanor when money or property offered or received is worth more than a certain amount, said Mr. Gallagher.

Since the alleged offer would have been for support, not money or property _ like "horse trading" _ it could be difficult to classify, said Mr. Gallagher.

Bribery convictions can result in jail or prison time, and fines, he said.

An officeholder convicted of misdemeanor or felony bribery would also be required to vacate his or her office, said Mike Murphy of the county counsel's office.

Directors can be recalled by voters, but cannot be removed from office by their colleagues, said Mr. Esselstein.

"Nothing that's gone on at this point at all has affected [Mr. Kennedy's] ability to serve," said Mr. Esselstein.

The matter "should not distract us from what we really need to be doing," said President Spencer.

The board last week created five new jobs in the fire district, he pointed out. "We accomplished a lot in that meeting, and this was just one part."