Almanac

News - December 15, 2010

Mayoral mayhem in Menlo Park

• Will council follow policy in replacing Fergusson?

by Sandy Brundage

When Kelly Fergusson resigned as mayor of Menlo Park a mere four days after being elected, the roar of the power vacuum could be heard for miles as those interested in the outcome scrambled to suggest replacements.

Councilmen Rich Cline and Andy Cohen emerged from the noise as the two most likely candidates for mayor, but the seat remains up for grabs to everyone except Ms. Fergusson, who said she won't stand as a candidate this time.

Brown Act

Ms. Fergusson resigned as the mayor of Menlo Park on Dec. 10 as a consequence of Brown Act violations committed by meeting one-on-one with at least two council members to discuss her desire for the position. The council plans to re-vote on Tuesday, Dec. 14.

In a statement issued last week, Ms. Fergusson apologized to the community. "My resignation is a symbol of the respect I have for the Brown Act, and of my intention to be completely mindful and aware in the future and to act in full compliance with the law as I always have in the past," she wrote.

As the Almanac first reported, the councilwoman held private discussions with council members Rich Cline and Peter Ohtaki about her desire to serve as mayor. Both men said they were unaware she had spoken with anyone else.

"Kelly and I did discuss the upcoming mayoral vote, and I did expressly tell her I was planning to follow the protocol. I had no interaction with other electeds," said Mr. Cline.

Mr. Ohtaki met with her the morning of the vote. "It's not my intention to put her in an awkward position," he said. "She called and asked to meet."

Former member Heyward Robinson said he'd also met with her, but the city attorney had advised his conversation didn't violate the Brown Act since he would no longer be on the council by the time the vote for mayor was taken.

City Attorney Bill McClure said Ms. Fergusson may also have asked an intermediary to lobby Kirsten Keith, who was chosen as vice mayor.

Community demands sunshine

At the attorney's request, the council postponed a special meeting on Friday afternoon called 24 hours earlier to re-vote on mayor and vice mayor, and will instead discuss the matter on Dec. 14 at its regular Tuesday night meeting.

The postponement came in the wake of outrage from local government watchdogs over the timing of the special session. According to the city clerk's office, four of the five council members requested the Friday meeting.

"Specific reference to the public's right to comment on the item was missing from the notice as it turns out — I had thought there was boilerplate language regarding public comment at the bottom of the notice — but it turns out that language was not there," said Mr. McClure when asked about the reason for the postponement, describing it as a "technical defect" in the city's announcement of the special meeting.

That defect was brought to his attention by open government advocate Peter Carpenter, who urged the city attorney to properly notice the meeting, after realizing the notice didn't include a public comment period. He had also sent a letter last week asking Mr. McClure to correct the Brown Act violations, and to the district attorney's office requesting an investigation into Ms. Fergusson's conduct.

Ms. Fergusson, who has served on the council for six years and once before as mayor, said she intends to remain on the council. She was elected mayor by the council again on Dec. 7 in a split 3-2 vote, with Andy Cohen and Peter Ohtaki dissenting.

Her main competition came from Mr. Cohen, who, despite statements to the contrary — "I didn't campaign for this position," Mr. Cohen told the audience on Tuesday night before the vote — had asked the council and incoming members Kirsten Keith and Mr. Ohtaki for the job in a memo mailed last month that outlined his qualifications.

Mr. Cohen has yet to respond to the Almanac's request for comment. According to the city attorney's investigation, only Ms. Keith actually discussed the mayoral selection policy with Mr. Cohen prior to last week's vote — a discussion that didn't violate the Brown Act since a majority of council members did not participate.

Council may shun mayoral policy

Despite Ms. Fergusson urging the council to follow policy in selecting a mayor last week, her resignation letter stated that now the policy should be suspended "because of the unusual circumstances associated with this year's mayoral selection process."

By the city's non-binding policy, Ms. Fergusson and Mr. Cohen were the members of the council most eligible to pick up the gavel, as council members must have at least one year of council experience to become mayor. If the candidates have all served as mayor before, then the one with the longest time elapsed since holding the position gets priority.

The policy has been ignored at least twice by previous councils since its enactment in 1993. If this council chooses to do so, all bets are off.

"We have moved somewhere outside the traditional protocol so I think anything can happen. As I said before, if my name is called I will vote for myself and accept the job as mayor," said Mr. Cline.

Both the position of vice mayor and mayor pro tem are filled by Ms. Keith until the re-vote, according to the city attorney.

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