http://almanacnews.com/print/story/print/2011/01/05/editorial-councilwoman-fergusson-loses-her-way


Almanac

Viewpoint - January 5, 2011

Editorial: Councilwoman Fergusson loses her way

What was she thinking?

Menlo Park City Council member Kelly Fergusson's lame decision-making in the last few weeks has made her the laughingstock of her opponents and someone even some of her friends are finding hard to live with in the wake of the Brown Act scandal that began in early December.

Ms. Fergusson has admitted that she lobbied two council colleagues while running for mayor in direct violation of the Brown Act, which forbids such "serial" meetings. And while she won the mayoral post on a 3-2 vote, she resigned three days later after word of her conduct leaked out.

But that was not all. Thanks to the effort of Atherton resident Peter Carpenter, a Brown Act watchdog, Ms. Fergusson's wrongdoing is now being investigated by the district attorney, who could decide to bring criminal charges against her. And, just last week, it became known that Ms. Fergusson, who vowed to take a refresher course in the Brown Act when she resigned as mayor, had not attended an ethics course for elected officials — which would likely have covered Brown Act matters — since 2006, even though council members are required to attend one every two years. However, city records show that only Mayor Rich Cline met this obligation. Council members John Boyle and Heyward Robinson, who both left office last month, attended their last class on Nov. 29, 2007, so were out of compliance during all of 2010. And after taking a class in April 2006, member Andy Cohen did not take another until more than three years later, in September, 2009.

Taken together, Ms. Fergusson's actions exhibit a disturbing lack of judgment and unfamiliarity with the Brown Act, legislation that is designed to protect the public from secret, insider deals by and among members of every public board, commission or city council in the state.

It is difficult to assess whether Ms. Fergusson can recover from this debacle and go on to be an effective member of the City Council. Certainly she has lost her luster, and although she has won plaudits for her work on the Green Ribbon Task Force and on issues touching her Willows neighborhood, we expect she will find it difficult to perform effectively in the months ahead.

Despite the serious nature of her violation, we doubt if the district attorney will charge Ms. Fergusson with a criminal act. When confronted with the wrongdoing, and on advice of the city attorney, she publicly admitted violating the Brown Act, and the council went on to elect Rich Cline mayor a few days later. There was little, if any, real "damage" done by the affair, other than the poor publicity received by the city and the council.

A more appropriate punishment might be for the district attorney to recommend a civil penalty that the council could impose, perhaps a vote to censure Ms. Fergusson, similar to the way members of Congress are treated when found guilty of violating House rules. In our view, such an action would more properly fit her crime of violating the Brown Act.

Comments

Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 4, 2011 at 5:03 pm

The Council, in response to my "Cure and Correct Demand" made under Section 54960.1 b of the Brown Act, has quite properly declared the initial election (which was contaminated by Fergusson's admitted violation of the Brown Act) as null and void and held a new election. This satisfies my "cure and Correct Demand" but does nothing to punish Fergusson's violation of the Brown Act.

Section 54959 provides for penalties for an individual who violated the Brown Act and there is no provision for forgiving such individual violations simply because the legislative body has corrected the damage done by that violation. Nor does the Act allow the legislative body to in any way punish a member who violates the Act - that is the sole responsibility of the DA and the judicial system.

If saying "I am sorry" when an elected official gets caught is considered as punishment then there would be no incentive for elected officials to comply with the Act - just do everything in secret and, if you get caught, say "Sorry".

It should be appreciated that in calling for prosecution of Fergusson's admitted and confirmed violation of the Brown Act that the crime involved is a misdemeanor with a MAXIMUM penalty of $1000 and/or six months in jail. Driving without a license is a misdemeanor; certainly violating the Brown Act is a much more serious insult to society than is driving without a license. And it is likely that, once charged, Fergusson and the DA would agree to a plea agreement that simply involved immediate ethics training and court supervised interaction with her colleagues. Is that too high a price to pay for breaking the law?? Is that too high a price to pay for the DA to send a message that he will not ignore the Brown Act??


Posted by Menlo Voter, a resident of Menlo Park: other
on Jan 4, 2011 at 8:22 pm

Kelly needs to resign.


Posted by AnoNymous, a resident of Menlo Park: other
on Jan 4, 2011 at 9:23 pm

[Post removed. Personal attack.]


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 5, 2011 at 4:47 am

As our new District Attorney Stephen Wagstaffe states:"It's a fundamental principle of the criminal justice system, for every act, there must be a consequence. If there's no consequence, why would anyone fear committing the act?"


Posted by taxpayer, a resident of Atherton: West of Alameda
on Jan 5, 2011 at 10:09 am

Hundreds of taxpayers dollars can be saved when the Brown Act Ethics' course is taken online. Fergusson should take this course online instead of trotting off to a conference on the taxpayers' dime.


Posted by henry, a resident of Menlo Park: The Willows
on Jan 5, 2011 at 3:04 pm

Kelly needs to resign, I agree.
She has forfeited our trust.
When the name of the intermediary whom she had contact Kirsten Keith is revealed, we may all be shocked.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 5, 2011 at 3:38 pm

The Almanac shows a remarkable ignorance of the law in calling for civil rather than criminal penalties.

Civil cases involve private disputes between persons or organizations. The civil action in this case was my "Cure and Correct" letter to the Council under Section 54960.1 b of the Brown Act.

Criminal cases involve an action that is harmful to society as a whole. Fergusson's violation of the law was not a private dispute with me or any other citizen but was, like driving without a license, or speeding, or robbery etc., an act harmful to society as a whole. That crime is properly punishable only under Section 54959 of the Brown Act. Do we allow speeders or robbers to simply say that they are 'sorry'? Allowing Fergusson to simply say "sorry" would hardly be justice.


Posted by Ano Nymous, a resident of Menlo Park: other
on Jan 5, 2011 at 6:29 pm

You mean to that none of the other posts above constitute a "personal attack?"


Posted by Let's Make A Mountain Out Of A Molehill, a resident of Menlo Park: other
on Jan 5, 2011 at 11:17 pm

Off with her head in a public display, I say!!!


Posted by Joanna, a resident of Menlo Park: Downtown
on Jan 6, 2011 at 10:27 am

Fergusson should resign or be driven out of office!


Posted by Edward R Murrow, a resident of Menlo Park: other
on Jan 7, 2011 at 10:50 pm

A criminal penalty is bit outrageous in this case. The preliminary investigation did not uncover any agreements or understanding between a majority of the Council to vote in a certain manner, and the Brown Act clearly states that mere deliberation without taking of some action will not trigger the criminal penalty.

54952.6 Definition of action taken

As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.


Posted by old timer, a resident of Menlo Park: Central Menlo Park
on Jan 7, 2011 at 11:38 pm

McClure really did a terrible job. He should have never let the original vote take place. Here was an email from Carpenter saying the Brown act had been violated. McClure when asked before the vote, said he hadn't had enough time to investigate.

At the reception following, all the buzz was that Ohtaki had said Kelly had called and told him she had three votes and wanted his support also.

Why didn't McClure know this? The original vote should not have taken place.

Then you have McClure trying to make haste and setup a meeting 3 days later on a Friday afternoon, when most of the City wouldn't be there or know it was even taking place. That didn't work because he blew the noticing requirements.

Finally, he lets Fergusson, who corrupted the whole process act like nothing had happened and she got to vote for Mayor and Vice-mayor also. She should have not been allowed to participate.

I take issue with Carpenter, who says, the re-vote satisfied the Brown act in term of correcting the corrupted first election. No way.

The investigation that McClure did, is totally inadequate. Hopefully the DA, will put some force behind his work.

Also, Keith probably violated the Brown act also. We know Keith talked with Cohen and Fergusson. Why isn't that a Brown act violation?




Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 8, 2011 at 7:01 am

Fergusson's serial meeting did result in "a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision," hence this meets the standard for a criminal violation.


Posted by Edward R Murrow, a resident of Menlo Park: other
on Jan 8, 2011 at 8:41 am

The problem is that the preliminary investigation did not uncover any agreements or understanding between a majority of the Council to vote in a certain manner, so someone will need to change their story.

Would this not be the first ever case, where a serial meeting met the bar for "action taken" to trigger criminal penalties?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 8, 2011 at 9:04 am

I think that it is highly unlikely that Fergusson did not ask those with whom she talked for a commitment of support - why else would she talk to them?

The City Attorney's investigation did not involve sworn testimony. It is amazing what happens when people are asked to give sworn testimony, which is why the DA's inquiry is so important.


Posted by Edward R Murrow, a resident of Menlo Park: other
on Jan 9, 2011 at 3:32 am

The Almanac shows appropriate understanding, not remarkable ignorance, of the law, because the editorial was based on the information presented in the staff report.

The people demand that elected (and appointed) officials are held to a higher standard of moral conduct. It is unconscionable to assert that Fergusson's "admitted and confirmed" violation is a misdemeanor, when the "admitted and confirmed" violation clearly does not meet the standard for "action taken" to trigger the criminal penalty. The justification that Menlo Park Council Members will only be truthful when giving sworn testimony is a grave insult to our great city and the voters that elected these Council Members.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Jan 9, 2011 at 5:51 am

Mr.(so called) Murrow - you have lost your(?) great reportorial skills.

Relying on a staff report that dealt solely with responding to my 'cure and correct' demand is turning a blind eye to all of the other facts of this case. Listen to the tape of the meeting in question - Fergusson's election was a done deal before the public meeting occurred. The standard of "a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision," was met.

Fortunately neither you or or will be the judge in this case.


Posted by POGO, a resident of Woodside: other
on Jan 9, 2011 at 8:14 am

We should keep in mind that, had not a private citizen, Mr. Peter Carpenter, brought this matter to our attention, none of this would have happened. Menlo's City Attorney and Menlo's newly elected Mayor and Council would have just kept quiet and no one would have known the better that a secret deal had been wrought.

And even when this was brought to his attention, Menlo's City Attorney didn't even have the most basic knowledge of the Brown Act to properly void the flawed election and properly give notice of a new meeting.

Now it turns out that they have ignored their responsibility to take the required courses in ethics - which is about the only thing an elected official MUST do.

No wonder the public is so disgusted with our public officials. Ms. Fergusson and the Menlo City Attorney are Exhibit A and B.


Posted by interested, a resident of Menlo Park: Belle Haven
on Jan 9, 2011 at 9:46 am

Cline took his courses, POGO. At least make an effort to keep it honest. And your boy Boyle did not.


Posted by Hansel & Gretl, a resident of Menlo Park: The Willows
on Jan 9, 2011 at 1:43 pm

Fergusson lost her way all the way to Pope Street.


Posted by Council Watcher, a resident of Menlo Park: Central Menlo Park
on Jan 9, 2011 at 5:55 pm

If Fergusson resigns then all that does is move Slocum's schedule up a bit. Katie Ferrick moves from the on deck circle to the batter's box. And with all that good coaching Slocum is aiming for a home run.

Since Fergusson is now damaged goods Slocum is probably for the Fergusson resignation so that there will be no untainted members on her team. BTW Katie bats left handed.


Posted by truth, a resident of Menlo Park: Belle Haven
on Jan 9, 2011 at 9:18 pm

Why slander Katie? Exactly what did she do beside volunteer for the city?

Terrible stuff CW. You lost my respect with that drivel.


Posted by Bereft of Reasoning, a resident of another community
on Jan 10, 2011 at 5:27 am

Truth,

How is being selected to run for City Council being slandered?


Posted by POGO, a resident of Woodside: other
on Jan 10, 2011 at 9:01 am

Interested -

You may want to re-read my post. I never said Mr. Kline didn't take his required course in ethics. My post was about Ms. Fergusson and the Menlo Park City Attorney.

And Mr. Boyle is hardly "my boy." I wouldn't know him if he were standing right in front of me in this ridiculously long line at Peets.