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District attorney won't prosecute Councilwoman Kelly Fergusson on Brown Act violation

Original post made on Feb 1, 2011

Menlo Park Councilwoman Kelly Fergusson will not face criminal charges for a Brown Act violation, the district attorney's office announced on Tuesday.

Read the full story here Web Link posted Tuesday, February 1, 2011, 11:59 AM

Comments (38)

Posted by Arch Conservative, a resident of Menlo Park: Downtown
on Feb 1, 2011 at 12:48 pm

There was a violation, therefore there should be punishment. But, it looks like politics as usual.


Posted by truth, a resident of Menlo Park: Belle Haven
on Feb 1, 2011 at 12:57 pm

Due process was served. Give it a rest already.


Posted by None, a resident of Menlo Park: Linfield Oaks
on Feb 1, 2011 at 1:00 pm

Wagstaffe never prosecutes government figures in San Mateo County. He just looks the other way.

And to "Truth": No, justice wasn't served. What's to stop others from doing what Fergusson did, now that they know they won't be prosecuted?


Posted by truth, a resident of Menlo Park: Belle Haven
on Feb 1, 2011 at 1:05 pm

Due process is all you get buddy. Your machinations about what is fair matters to no one but you.


Posted by IMOOMFM, a resident of Menlo Park: Central Menlo Park
on Feb 1, 2011 at 1:07 pm

[Post removed due to same poster using multiple names]


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Feb 1, 2011 at 1:46 pm

As I suggested in a previous post, Kelly's 2 phone calls violated the Brown Act in the same way that driving 2 miles over the speed limit violates the law against speeding. Though technically illegal it was not a serious violation.
The DA showed appropriate judgment in his ruling.


Posted by Joanna, a resident of Menlo Park: Downtown
on Feb 1, 2011 at 2:10 pm

There was a clear violation on Fergusson's part. There should be clear consequences.

The DA made a big mistake here.


Posted by LaWayne, a resident of another community
on Feb 1, 2011 at 2:15 pm

The Daily Post said that Wagstaffe reached a decision yesterday but was delaying announcing it until he spoke with Peter Carpenter. Any word from Peter about their discussion.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Feb 1, 2011 at 2:23 pm

Peter was the person who wrote the letter to the DA asking that he investigate Kelly's violation and prosecute as appropriate. Wagstaffe was just being polite (politic?) in responding to the person who initiated his investigation.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Feb 1, 2011 at 2:24 pm

Joanna -
and what should be the clear consequences for driving 2 miles over the speed limit?


Posted by Sandy Brundage, Almanac Staff Writer, a resident of Menlo Park: Central Menlo Park
on Feb 1, 2011 at 2:39 pm

LaWayne:

Peter Carpenter said he was not aware of the outcome prior to today's announcement.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Feb 1, 2011 at 2:41 pm

I believe that the DA followed the letter of the law and the facts uncovered in his investigation resulted in an appropriate decision.

Unfortunately, I believe that the DA missed an opportunity in announcing his decision to emphasize the importance of the Brown Act and that his office would be watching elected officials to ensure that their actions complied with the Act.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Feb 1, 2011 at 3:07 pm

From the DA's office:

Peter,

Thanks for the note. I wanted to let you know that we are not contemplating any further official statement. As I mentioned to you, and as I've told callers from the media, my office remains committed to playing our role in ensuring that the provisions of the Brown Act are followed. Transparency in government, as delineated in the Act, is crucial to the healthy functioning of a participatory democracy. As you know, the Brown Act plays a vital role in setting the standard for open government. For our part, as we did in this case, we are prepared to investigate alleged violations by public officials and to take appropriate steps, as necessary.

I would also like to thank you again for your efforts in educating the public as to the Brown Act and your vigilance in seeking enforcement of its provisions.
Sincerely,

Al Serrato


Posted by citizen, a resident of Menlo Park: Downtown
on Feb 1, 2011 at 3:58 pm

Who's next on carpenter's hit list!


Posted by Holly, a resident of Atherton: other
on Feb 1, 2011 at 4:01 pm

Sorry, I wouldn't trust anything that the San Mateo DA's office said on this matter.


Posted by Holly, a resident of Atherton: other
on Feb 1, 2011 at 4:06 pm

Didn't Jim Fox say when he was in office that they would never prosecute anyone for the Brown Act? And didn't Wagstaffe tell a reporter when he was coming into office that he would continue to do things just the way Fox did?


Posted by truth, a resident of Menlo Park: Belle Haven
on Feb 1, 2011 at 4:08 pm

[Post removed. Please keep this on the topic of the Brown Act.]


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Feb 1, 2011 at 4:12 pm

The real truth is that we are all citizens and we all bear the responsibilities of citizenship rather than looking at the world through a narrow cynical window.

We should be sharing ideas not throwing verbal rocks.


Posted by old timers, a resident of Menlo Park: Central Menlo Park
on Feb 2, 2011 at 5:53 am

Reading the PA Daily this AM, we find that the DA didn't even interview Fergusson. Fergusson wouldn't give him an interview. He also didn't interview other council members.

So, just what did the DA do? Did he do anything?

Who was the third party? Is there going to be any public release of just what the DA did on this matter?

This is nothing more than a complete cover up of the whole affair. We should not let this pass.

Peter, if this is allowed to stand this way, we should just repeal the Brown act; it really means nothing, carries no weight and will not prevent what it was written to accomplish.kTi1J


Posted by None, a resident of Menlo Park: Linfield Oaks
on Feb 2, 2011 at 6:18 am

A quick Google search shows that all over California, District Attorneys are refusing to prosecute those who violate the Brown act.

Here's a case from San Diego: Web Link


Posted by POGO, a resident of Woodside: other
on Feb 2, 2011 at 7:28 am

old timers -

I am a critic of Ms. Fergusson but it is certainly understandable that she would not speak with the District Attorney. She has no obligation to cooperate with someone who may prosecute her criminally.

When you are told "anything you say can and will be held against you," it is usually best to keep quiet.

That said, I'm not sure why the investigation would not have involved the other council members.


Posted by olt timer, a resident of Menlo Park: Central Menlo Park
on Feb 2, 2011 at 8:05 am

I certainly agree that Fergusson did not have to be interviewed and she was (is) entitled to use safeguards to keep from being prosecuted.

The Post today has a much more detailed article than what the Almanac has yet to release. Fergusson hired an attorney to advise her through all of this.

However, the third party (or parties) are still not identified. The DA didn't release the name of the intermediary, or whether he know who the identity. To me it smells of a cover up. McClure's miss-handling of the incident, and attempt to have a meeting on a Friday afternoon with in-adequate noticing also leads me to that conclusion.

I remember well the Watergate scandal in the Nixon years. Then the break in was first seen as nothing but an ordinary burglary.

I am surprised of the passive attitude of Carpenter, who led the charge here, and seems to be ok with what the results have produced.


Posted by truth, a resident of Menlo Park: Belle Haven
on Feb 2, 2011 at 8:12 am

Watergate? Seriously?

Due process was served. You don't like the result, move to another country where you can manipulate the results. For claiming to be old timers, you certainly don't understand the basic backbone of our nation.

Due process was served and the people rendering the decision were selected by the people and for the people.

This issue is over.

And I do believe other council members were interviewed. So give that a rest please. I know Peter and Cline were, at least.




Posted by Bob, a resident of Menlo Park: Downtown
on Feb 2, 2011 at 8:28 am

Given this latest development, I hope that Ms. Fergusson does as little damage as possible for her remaining time on the council then fade into the background. I would say her political career will soon sunset.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Feb 2, 2011 at 8:38 am

If I, as a public official, felt compelled to exercise my Fifth Amendment rights against self incrimination when asked about my behavior in office then I would also feel compelled to resign my public office.


Posted by Lurker, a resident of another community
on Feb 2, 2011 at 8:41 am

Interesting quotes from story in San Jose Mercury News:

"Menlo Park Council Member's Violation of Brown Wasn't Criminal, Prosecutors Conclude."

Excerpt:

Brown Act expert Peter Scheer, executive director of the nonprofit First Amendment Coalition, said while Fergusson has a Fifth Amendment right against self-incrimination, the district attorney's conclusion would have instilled more public confidence if she had fully cooperated.
"It appears here we're left with some ambiguity," Scheer said. "He concluded there wasn't a crime, but he did so without the opportunity to ask questions of the person at the center of the investigation. It seems to me she still has some explaining to do."


Posted by Sandy Brundage, Almanac Staff Writer, a resident of Menlo Park: Central Menlo Park
on Feb 2, 2011 at 10:20 am

The DA's investigator interviewed Rich Cline, Peter Ohtaki, and Kirsten Keith.


Posted by old timer, a resident of Menlo Park: Central Menlo Park
on Feb 2, 2011 at 11:48 am

Sandy:

That is what the post also reported on who was interviewed.

Why didn't he interview Cohen? Keith talked to Cohen. Who is the third party!!!


Posted by Hank Lawrence, a resident of Menlo Park: Sharon Heights
on Feb 2, 2011 at 12:36 pm

The case is closed. You can not unring that bell. Kelly escaped. We need to move on. But be sure that any campaign by Ms. Fergusson for a third term will be met with serious opposition not just from my side; but from her side as well. I predict that Katie Ferrick will run for the Fergusson seat from Kelly Hayward, and Gail's side.


Posted by Brynna, a resident of another community
on Feb 2, 2011 at 3:39 pm

Anyone interested in organizing a recall? It will cost Menlo Park thousands that could be spent to benefit Menlo Park residents, but that doesn't hurt those of us who aren't residents and it will make us feel more important.


Posted by Hank Lawrence, a resident of Menlo Park: Sharon Heights
on Feb 3, 2011 at 10:09 am

Recall was discussed. The problem with recall is that it can lead to internecine warfare where council members are being recalled not for malfeasance but because we don't like their policies. And once this gets going you can be sure that it will be bilateral. This causes great discontinuities where council members, instead of doing the people's work, are preoccupied with defending themselves. Not to mention the costs of elections which can be substantial if we have recalls and retaliatory recalls.

The bottom line is that we should live with our mistakes and correct them in the next election cycle.


Posted by R.GORDON, a resident of another community
on Feb 3, 2011 at 12:43 pm

R.GORDON is a registered user.

Barratry..........how the Peninsula sustains and nourishes itself with most of the entries above.


Posted by Confused, a resident of Menlo Park: Central Menlo Park
on Feb 3, 2011 at 10:40 pm

Mr. Gordon is "A riddle wrapped in an enigma, shrouded in mystery". If anyone can decipher what Mr. Gordon says, could you please enlighten the rest of us.


Posted by Lurker, a resident of Menlo Park: Linfield Oaks
on Feb 4, 2011 at 4:57 am

From Free Dictionary:

Barratry n. creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter. Barratry is illegal in all states and subject to criminal punishment and/or discipline by the state bar, but there must be a showing that the resulting lawsuit was totally groundless. There is a lot of border-line barratry in which attorneys, in the name of being tough or protecting the client, fail to seek avenues for settlement of disputes or will not tell the client he/she has no legitimate claim.


Posted by Menlo Voter, a resident of Menlo Park: other
on Feb 4, 2011 at 7:02 am

[Post removed; please stick to the subject and don't ridicule other posters.]


Posted by Menlo Voter, a resident of Menlo Park: other
on Feb 4, 2011 at 8:19 am

Editor:

if my post was considerd "ridicule" why isn't confused's post?


Posted by Lewis Carroll, a resident of Menlo Park: other
on Feb 6, 2011 at 7:28 am

Dear Menlo Voter,

Confused was confused. You weren't.


Posted by Menlo Voter, a resident of Menlo Park: other
on Feb 6, 2011 at 8:38 am

Lewis Carroll:

I don't think confused was at all. He or she has been posting here long enough to know about Mr. Gordon's posts.


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