Almanac

News - December 29, 2010

D.A. to review Brown Act violation

by Renee Batti

A review of Menlo Park City Councilwoman Kelly Fergusson's admitted Brown Act violation is being launched to determine if more legal action is needed to "cure and correct" the violation, according to county Chief Deputy District Attorney Steve Wagstaffe, who has directed his staff to conduct the review.

Mr. Wagstaffe, who will step up to the top position in the D.A.'s office next week, said a number of citizen complaints prompted his decision to direct two Brown Act experts in his office — an investigator and an attorney — to review the matter. He said he hopes the issue can be put to rest "within a couple of weeks."

Councilwoman Fergusson admitted that she violated the Brown Act by meeting one-on-one with at least two other council members to discuss her desire to be elected mayor in early December. The admission came after questions were raised by the public and the press, and City Attorney Bill McClure conducted his own review of the matter.

Ms. Fergusson said the violation was unintentional, but soon after she was elected mayor she announced she was resigning the position and would not consider herself eligible for it when the council voted again to name a mayor the following week.

Councilman Rich Cline, who served as mayor in 2010, was then elected to serve a second consecutive term.

Mr. Wagstaffe said his office will review whether the "correct and cure" action already taken by the council — in accepting Ms. Fergusson's resignation and electing another person to the position — was an adequate remedy to address the violation.

"We're going in open-minded, to find out what occurred," he said in a Dec. 27 interview with the Almanac. He said the review will include interviews with people involved in the matter, including Ms. Fergusson if she agrees to be interviewed. The investigator will start fresh, Mr. Wagstaffe said, determining to his own satisfaction whether a violation really occurred.

Regarding the possibility of criminal prosecution, Mr. Wagstaffe said Brown Act violations fall into more than one category — some of which can be criminally prosecuted and others that cannot. Determining what category the violation, if one occurred, falls into will be part of the investigation, he said.

Atherton resident Peter Carpenter, a staunch Brown Act advocate, was among the most persistent citizens calling for action by the D.A.'s office, beginning soon after Ms. Fergusson was elected mayor. In an e-mail he wrote to Mr. Wagstaffe on Dec. 25, Mr. Carpenter said: "... nothing has been done to hold Fergusson accountable for her violation of the law.

"I urge you to take action in this case. If you turn your back on this proven and admitted violation then you are clearly signaling to all the other public officials in San Mateo County that they can ignore the Brown Act during your tenure as our District Attorney without fear of sanction or punishment."

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