Almanac

News - November 10, 2010

Attorneys say no Brown Act violation

• Public rights advocate retracts accusation.

by Sandy Brundage

Californians Aware attorney Terry Francke has retracted his statement to a local newspaper that three members of the Menlo Park City Council violated the Brown Act by exchanging e-mails discussing campaign business.

He told one of the council members involved, Heyward Robinson, that he had not actually read the e-mails before talking to the Daily Post, but had only heard the reporter's description of them.

Now Mr. Francke says there was no substantive discussion in the e-mails, and no Brown Act issue.

"I apologize for whatever embarrassment my mistaken conclusions caused you and the others," the attorney told Mr. Robinson in an e-mail.

A "Citizens' Brown Act Violation Fund" sprung up in the wake of the Daily Post reporting. Founded by Peter Carpenter, a staunch defender of the public's right to know what the city's doing, the fund had $3,000 pledged as of Nov. 1.

The e-mails were shared between council member Kelly Fergusson, and incumbents Rich Cline and Mr. Robinson, who are running for election.

City Attorney Bill McClure also said no violation took place. He explained the Brown Act applies to communication between a majority of members on items within the jurisdiction of the council.

The only e-mails between multiple council members related to campaign mailings — with no discussion of content or positions on issues — and attendance at a Felton Gables neighborhood event, according to Mr. McClure. "Neither topic being or relating to an item of business within the subject matter jurisdiction of the city council," he wrote in an e-mail to The Almanac.

Ms. Fergusson said a handful of e-mails, out of "thousands and thousands," were inadvertently sent from her city account.

Asked why she later sent a statement supporting Measure T, the Menlo Gateway project, to the City Council e-mail list, her answer blended both public and private reasons.

"There's a lot of misinformation out there. It was signed by five mayors and I'm one of them. I used my private e-mail address, as a private citizen," said Ms. Fergusson.

Another e-mail, sent to a Menlo Park resident from Ms. Fergusson's city account, made an argument for voting against Measure L, the pension reform initiative, claiming it would stop city employees from paying $100 per month toward medical expenses, an amount she estimated at $200,000 a year.

However, Measure L would only affect new hires, not current employees, and doesn't change any already-established agreement. The initiative passed with a 72 percent "yes" vote on Nov. 2.

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