News - November 24, 2010

Menlo incumbent files complaint with state bar over Brown Act stories

by Sandy Brundage

On the same day that the Daily Post ran a front page apology for two stories and an editorial that said three Menlo Park council members violated the Brown Act by exchanging e-mails discussing campaign issues, one of those council members, Heyward Robinson, filed a complaint with the state bar association regarding noted First Amendment attorney Terry Francke's involvement with the stories.

After the stories ran a few days before the Nov. 2 election, Mr. Robinson discovered that Mr. Francke had never actually seen the e-mails before declaring "a very serious Brown Act violation" had occurred.

Once Mr. Francke did view the e-mails, the day before the election, he retracted his statement and apologized, saying there was in fact no Brown Act issue.

He told The Almanac this was the second correction run by the Post and that he had personally apologized to Mr. Robinson. "I've read the complaint and I sympathize with its sentiment, but I've checked the Rules of Professional Conduct and don't see any that address this situation," Mr. Francke said.

The complaint filed on Nov. 19 asked the state bar to hold the attorney accountable for his errors "and their serious and irreparable consequences," namely, the possible political harm done to the two council members running for re-election.

"It most certainly did political damage to the incumbents, causing some to vote against them," Mr. Robinson wrote in the letter.

He told The Almanac that his review of precinct-level voting data from San Mateo County showed a weaker-than-expected performance in the precinct encompassing the Willows neighborhood; copies of the Post stories were distributed to the neighborhood's Yahoo message board online.

"To see that tells me something had an effect, but I don't think it was any one factor," Mr. Robinson said, explaining that fellow incumbent Rich Cline's third-place finish came as more of a surprise than his own loss.

Another factor he cited as affecting the election included lack of public awareness about the council's accomplishments during the past four years.

Since both incumbents were mentioned in the Post stories and share a similar history of service on the council, yet Mr. Cline will keep his seat on the dais, there may be an additional factor at work.

The passage of the pension reform initiative by 71 percent indicates most Menlo Park residents supported Measure L. While Mr. Cline chose to stay publicly neutral about the initiative, Mr. Robinson openly opposed it.

Data released on Nov. 17 by the county suggests the articles may not have had a huge impact; Mr. Robinson trailed the other incumbent by 167 votes among those cast on election day — a slightly smaller gap than in the vote-by-mail category. The same trend held for Mr. Cline's distance behind second-place winner Kirsten Keith.

Still, notoriety is not the sort of attribute that wins elections. "Certainly it doesn't help to have blazing headlines that say 'e-mails expose incumbents,'" Mr. Robinson said. "Unfortunately journalism is largely self-policed. There's not a lot of recourse for someone on the other end of an incorrect story, especially if you're a public figure."

The Daily Post did not respond to Almanac requests for comment.


Posted by Hank Lawrence, a resident of Menlo Park: Sharon Heights
on Nov 24, 2010 at 7:31 am

Please look at the data below

Ohtaki Keith Cline Robinson Bernstein Peterson
22.4% 20.7% 19.2% 17.8% 13.4% 6.5%
21.7% 19.8% 18.8% 17.5% 14.7% 7.6%
3.29% 4.29% 2.26% 1.71% -9.42% -17.04%

The first row is vote by mail
The second row is vote at the polls on election day.
The third row is the decrease in % of votes on election day compared to the mail in ballots.

On election day the top vote getter Ohtaki had the greatest decrease in votes compared to the mail in ballots and Russ Peterson had the best improvement.

The order of the voting did not change for mail in ballots vs. voting at the polls. Most of the mail in ballots were sent in before the story broke on the alleged Brown Act violation.

One can conclude that the erroneous assertion of the lawyer with regard to the alleged Brown Act violation did not effect the election day voting with any statistical significance.

Robinson's assertion is incorrect. The alleged Brown Act violation did not effect the vote.

Posted by poster, a resident of another community
on Nov 24, 2010 at 7:44 am

There is another thread on this topic: Web Link

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