Almanac

Viewpoint - December 22, 2010

Letter: Council erred in not electing Cohen mayor

Hypocrisy. Inequity. Both words describe the Menlo Park City Council majority, which a week ago feigned allegiance to "the process" to select Kelly Fergusson as mayor and then a week later turned that process on its head to give Rich Cline a second term as mayor, which hasn't happened since Ira Bonde served as mayor from 1969 to 1976.

For those, like myself, who thought that the council would have the decency to vote in member Andy Cohen, who would have been appointed had the process been followed, this was a case of gross inequity.

Could it be that Mr. Cohen's position on the downtown portion of the Vision Plan — slowing it down to listen to and involve the stakeholders — was the reason he was bypassed? Is that the "erratic behavior" that Mr. Robinson (whose own behavior could only charitably be called erratic) referred to? Erratic is a word often used to dismiss integrity by those who are more comfortable with "group think."

I do hope that council member Cohen will continue as the independent thinker he has shown himself to be. Those of us who feel left out of the process appreciate the fact that we have Andy Cohen on the council because he is one council member who actually listens.

Nancy Couperus is a downtown Menlo Park property owner and co-founder of the Downtown Alliance. She lives in Los Altos.

Comments

Posted by Steve, a resident of Menlo Park: Downtown
on Dec 24, 2010 at 3:34 pm

Cohen has too many problems to ever be the mayor of Menlo Park again. Sending out letters in the middle of the night attacking other council members, and his sexest comment about a resident of Menlo OPark. No, a mistake was not made.


Posted by Morris Brown, a resident of Menlo Park: Park Forest
on Dec 24, 2010 at 5:48 pm

Nancy Couperus indeed has the situation exactly correct. Judge Cohen should have been chosen Mayor; the Almanac editorial is wrong. In fact the Almanac seems to be out to discredit Cohen for whatever reason.

Hypocrisy is the perfect word to describe other members of the Council. Cline preaching follow policy, until he saw the opportunity for another term. His performance at the polls much less than stellar for a sitting Mayor. Only Peter Ohtaki managed to get over 50% of the ballots cast. There was certainly no mandate for Cline. returning as Mayor for a another term.

Personal ambition and self promotion caused Fergusson to violate the law. She must now face the consequences, and hopefully the DA will start a real investigation of exactly what took place.

Is a Recall of Fergusson, a proper way for the community to react? Thus far this council has done nothing to condemn her. In fact, words like integrity of council members, are being voiced as where this council stands.

Apparently the fact that Ohtaki had the integrity to disclose what was a Brown act violation, cost him being chosen vice-mayor.

Fergusson failing to recuse herself from voting for Keith, and in fact nominated her, is an amazing display of arrogance. Surely this was the ultimate action for her to thumb her nose at what violation of the Brown act means.


Posted by NotaLawyer, a resident of Menlo Park: other
on Dec 24, 2010 at 7:29 pm

Right, Morris, because nothing Cohen does is ever his fault.


Posted by anonymous, a resident of Menlo Park: other
on Dec 25, 2010 at 10:08 am

Council member Ohtaki did not disclose this information to the city attorney, this may also be a brown act violation. Instead, he chose the share this information with political adversaries of a fellow council member.

Web Link

Former Council Member Lee Duboc said she first caught wind of the possible violation minutes before Tuesday's meeting. She said a friend told her that Fergusson called Ohtaki, asked him how he was going to vote and told him she had already secured a council majority in her favor.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 11:20 am

Anonymous states:"Council member Ohtaki did not disclose this information to the city attorney, this may also be a brown act violation."

Nothing in the Brown Act would require an elected official to make such a disclosure.


Posted by anonymous, a resident of Menlo Park: other
on Dec 25, 2010 at 7:07 pm

Mr Carpenter, did you advise Council member Ohtaki to withhold this information from the city attorney?

"Each member of a legislative body, who attends a meeting of such legislative body, where action is taken in violation of any provision of the act, with wrongful intent to deprive the public of information, to which it is entitled under the act, is guilty of a misdemeanor."

Many residents attended the December 7th meeting, but were deprived this information that Council member Ohtaki provided to Lee Duboc. Council member Cohen asked the city attorney to explain the complaint. Mr. McClure indicated that Peter Carpenter, "had it on good information" that there may have been a serial violation of the Brown Act. Council member Ohtaki sat quietly, and said nothing.

Mr Carpenter, did you discuss the your complaint with Council member Ohtaki? Did Council member Ohtaki allow this vote to go ahead, depriving the public of information, in violation of the Brown Act?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 7:58 pm

An anonymous person asks:"Mr Carpenter, did you advise Council member Ohtaki to withhold this information from the city attorney?"
No

"Each member of a legislative body, who attends a meeting of such legislative body,"

Ohtaki did NOT attend such a meeting.

"Mr Carpenter, did you discuss the your complaint with Council member Ohtaki?"
No





Posted by anonymous, a resident of Menlo Park: other
on Dec 25, 2010 at 8:21 pm

The meeting on December 7th was of such legislative body.

Mr Carpenter, please explain how you received this information? How many other residents had this information, but chose to remain silent? Please list the names of the the individuals that passed this information from Council member Ohtaki to you, the public deserves to know.

Mr Carpenter, did you have any communication with Council members Cohen or Ohtaki on December 7th. If not, are you willing to submit a sworn affidavit stating this, along with your phone records?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 8:40 pm

Some anonymous person asks:"Mr Carpenter, please explain how you received this information?"
My sources are confidential.

"Mr Carpenter, did you have any communication with Council members Cohen or Ohtaki on December 7th"
No

"are you willing to submit a sworn affidavit stating this, along with your phone records?"
Yes, but only to a person who has the courage to identify themselves.




Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 9:30 pm

Why in the world should I be accountable to some anonymous person who hides in the shadows?

If you want to engage in serious discussion then please have the courage to come out of the shadows.


Posted by lisa ewe, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 9:42 pm

[Post removed. Personal attack.]


Posted by lisa ewe, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 9:45 pm

[Post removed. Terms of use.]


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 25, 2010 at 10:04 pm

[Post removed. Refers to a deleted comment.]


Posted by POGO, a resident of Woodside: other
on Dec 26, 2010 at 6:02 am

To clarify two key elements of the Brown Act...

1. If a quorum of elected representatives meet TOGETHER as a group - without proper notice or proper access by the public - then ALL are guilty of a violation.

2. If a single elected official performs a "serial meeting" - that is, they meet, speak or correspond INDIVIDUALLY with a series of other elected officials (again, without notice or access), then the PERPETRATOR who holds the serial meeetings is guilty of a violation. It is important to note that the other officials that they met with individually in that series are not guilty of a Brown Act violation. The reason for this is simple, only the person who engineers the serial meeting is aware of the violation. The others only know that they are having a single conversation with a colleague - which is not a violation.

It's really not so complex... and every elected official knows this.


Posted by anonymous, a resident of Menlo Park: other
on Dec 26, 2010 at 11:23 pm

Council member Ohtaki chose to leak information regarding Council member Fergusson's intent. He should explain why he shared this information with others, but chose to exclude the city attorney.

If Lee Duboc (or anyone else with this information) contacted Council member Cohen before the meeting, then Council member Ohtaki is also the PERPETRATOR of a serial meeting.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 27, 2010 at 7:39 am

The Brown Act specifically prohibits any use of direct communication, personal intermediaries or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken. ( 54952.2(b)

The purported contact "If Lee Duboc (or anyone else with this information) contacted Council member Cohen before the meeting, then Council member Ohtaki is also the PERPETRATOR of a serial meeting."
would, if it occurred, not meet this standard as it was not for the purpose of developing a collective concurrence as to action to be taken.

My Dec 17 email to the City Attorney was cc'd to the "Menlo Council" email address so if Anonymous wants to charge me with a Brown Act violation please go for it. Anonymous will have to come out of the shadows and reveal who you are to make such a charge and will have to present a much more difficult, if not impossible, case than my charge against Fergusson.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 27, 2010 at 8:24 am

Correction - my initial email was Dec 7 not the 17th:


From: Peter Carpenter
Date: December 7, 2010 6:37:20 PM PST
To: menlo park city council <city.council@menlopark.org>
Subject: Fwd: Brown Act



Begin forwarded message:

From: Peter Carpenter
Date: December 7, 2010 6:36:49 PM PST
To: Bill McClure <wlm@jsmf.com>
Subject: Brown Act

Bill,
I have been reliably informed that one of the Council members has engaged in a serial meeting to solicit support for that person's election as Mayor.

You may wish to ask the Council members to declare if they did or did not engage in such a serial meeting.


Peter


Posted by halle, a resident of Menlo Park: Sharon Heights
on Dec 27, 2010 at 12:37 pm



Andy Cohen was next in line to be mayor. He should be!!!!

Why was Keith elected vice mayor before we have had a chance to see what she is like<


Posted by WGAF, a resident of Atherton: Lindenwood
on Dec 27, 2010 at 2:38 pm

Cohen, Fergusson, Cline, Mantle? what's the diff?


Posted by pots and kettles, a resident of Menlo Park: other
on Dec 28, 2010 at 1:27 pm

I think it is clear that LOTS of people were talking about who should be Mayor next. That includes Peter Ohtaki, who no doubt at least used an intermediary if not personally talked with Cohen beforehand. Ohtaki knew he was going to nominate Andy, despite Cohen's clear dismal prior performance as Mayor, and that was before his more serious health problems last year. And the intermediary also probably trying to talk with Kristen Keith if they could reach her.

Also, I hope the DA will consider that Ohtaki was not, until that very night, a sworn-in member of the Council. Can a Brown Act violation occur under those circumstances? The choice of who is Mayor is a procedural type decision -- and totally different from substantive decisions the Council makes. I would be shocked if the DA indicted Kelly. She has already resigned as Mayor, and has suffered in the estimation of all for her egoically driven overreaching. With some soul searching though she could learn an important lesson and mature even more in her Council role for these next two years.

What kind of environment on the Council are we fostering? Not a constructive one... and it's NOT just one or the other side doing that. Both sides need to stand down and start working together or we will not make much progress on the important issues on which we need our Council to take wise action this year and beyond.




Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 28, 2010 at 2:21 pm

Pots & Kettles -
Thanks for providing a clear-eyed view of many aspects of this tempest in a teapot that no one else seems to want to discuss.
First, and perhaps most significant, is your question of whether the procedure of choosing a Mayor really qualifies as "public business" and therefore falls under jurisdiction of the Brown Act. It's not obvious to me that it does. Such political jockeying for position is primarily of internal interest to members of the Council and does not constitute public business as we normally think of it, which is what the Brown Act seeks to protect from backroom negotiations. I hope the DA's ruling can help clarify this since the Brown Act doesn't seem to recognize any distinction between procedural and substantive business.
The problem of course is that pretty much every Mayor Menlo Park has ever had is probably guilty of violating the Brown Act if such internal politicking is interpreted as "public business".
Your second point that Ohtaki not yet been sworn in as a member of the Council when the conversations took place also complicates the question of whether a Brown Act violation could have occurred. If the DA rules that he was "official" in terms of Kelly's violation, then Peter himself may have some 'splaining to do.
And your final observation that this whole episode has likely further soured the relationships among Council members - even before they began their new term - is unfortunately true. When clear-headed thinking and an ability to work together is most needed, this episode has become a huge distraction, diverting attention from the important work the Council needs to be focused on.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 28, 2010 at 2:39 pm

Question 1- whether the procedure of choosing a Mayor really qualifies as "public business" and therefore falls under jurisdiction of the Brown Act.

Yes, it does."Where matters are not subject to a closed meeting exception, the Act has been interpreted to mean that ALL of the deliberative processes by legislative bodies, including discussion, debate and the acquisition of information, be open and available for public scrutiny." There is no exception for procedural matters.

Question 2 - Are newly elected persons subject to the Brown Act before they are sworn in?

Yes. "any person elected to serve as a member of a legislative body who has not assumed the duties of office shall conform his or her
conduct to the requirements of the Act, and shall be treated for purposes of enforcement of the Act as if he or she had already assumed office.

Question 3 - Can two members of a five person legislative body communicate outside of an agendized meeting?

Yes. The Brown Act prohibits communication between a majority of a legislative body, which would be three members of a five member body.


Posted by Nick DiCinto, a resident of Menlo Park: The Willows
on Dec 30, 2010 at 11:46 am

The various Brown Act violations absolutely need to be investigated and conclusively resolved, but in my opinion Andy Cohen's behavior in the Kim LeMieux matter is orders of magnitude worse:

Web Link

Looking at a quote like "I'm going to do whatever I can to help you out, because you're such a good-looking woman", the sexist overtones jump out at you first, but even worse in terms of policy is the implication that Andy has already made up his mind about a type of action (quasi-judicial) that he is REQUIRED to keep an open mind on prior to the public hearing. I don't have Peter's recall of specific code sections, but that is a legal requirement that a former judge should know (by the way, you can tell when Andy's done something really bad, because Morris et al start gratuitously referring to him as "Judge Cohen").

Also, this isn't necessarily important in and of itself, but just for the record- according to the white pages, Nancy Couperus lives in Los Altos Hills, not Los Altos. I'm not sure why she would try and claim otherwise.


Posted by Morris Brown, a resident of Menlo Park: Park Forest
on Dec 30, 2010 at 4:14 pm

Mr. DiCinto:

Here is a case where the Almanac might want to remove your comment, since it certainly doesn't fit the thread.

Furthermore, your comment is so ridiculous that it really doesn't deserve any response. However, if Cohen had already made up his mind, why did he vote against granting the removal permit and thus allowing LeMieux to have her project? Your comment here simply has no basis in fact or truth.

If you are going to attack someone, at leat make the attack with facts that back up, not destroy your allegations.



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