News


Update: Attorneys say no Brown Act violation

Public rights advocate retracts accusation

Californians Aware attorney Terry Francke has retracted his statement that three members of the Menlo Park City Council violated the Brown Act by exchanging e-mails discussing campaign business.

He told one of the council members involved, Heyward Robinson, that he had not actually read the e-mails before talking to the Daily Post, but had only heard the reporter's description of them.

Now Mr. Francke says there was no substantive discussion in the e-mails, and no Brown Act issue.

"I apologize for whatever embarrassment my mistaken conclusions caused you and the others," the attorney told Mr. Robinson in an e-mail.

A "Citizens' Brown Act Violation Fund" sprung up in the wake of the Daily Post reporting. Founded by Peter Carpenter, a staunch defender of the public's right to know what the city's doing, the fund had $3,000 pledged as of Nov. 1.

The e-mails were shared between council member Kelly Fergusson, and incumbents Rich Cline and Mr. Robinson, who are running for election.

Earlier on Monday City Attorney Bill McClure also said no violation took place. He explained the Brown Act applies to communication between a majority of members on items within the jurisdiction of the council.

The only e-mails between multiple council members related to campaign mailings -- with no discussion of content or positions on issues -- and attendance at a Felton Gables neighborhood event, according to Mr. McClure. "Neither topic being or relating to an item of business within the subject matter jurisdiction of the city council," he wrote in an e-mail to The Almanac.

Ms. Fergusson said a handful of e-mails, out of "thousands and thousands," were inadvertently sent from her city account.

Asked why she later sent a statement supporting Measure T, the Menlo Gateway project, to the City Council e-mail list, her answer blended both public and private reasons.

"There's a lot of misinformation out there. It was signed by five mayors and I'm one of them. I used my private e-mail address, as a private citizen," said Ms. Fergusson.

Another e-mail, sent to a Menlo Park resident from Ms. Fergusson's city account, made an argument for voting against Measure L, the pension reform initiative, claiming it would stop city employees from paying $100 per month toward medical expenses, an amount she estimated at $200,000 a year.

However, Measure L would only affect new hires, not current employees, and doesn't change any already-established agreement.

Comments

Like this comment
Posted by Bob
a resident of Menlo Park: Downtown
on Nov 1, 2010 at 6:35 pm

Why is it that a cloud seems to hang over our city council members? They seem to attract controversy. While Mr. Carpenter may be outspoken on many issues, I applaud his efforts to have transparent governments.

Whether or not something is right or wrong should also be coupled with the perception of impropriety. I am frustrated with elected officials doing something; getting "caught"; then saying "oops, sorry"; followed by some excuse like I didn't know any better or I only did a little.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 1, 2010 at 6:50 pm

Bob asks:"Why is it that a cloud seems to hang over our city council members?"

Because they consistently ignore their obligation to conduct their business in public. The Mayor violates the Brown act in a secret private meeting on HSR and simply says 'sorry about that'. With that kind of leadership and the failure of the San Mateo DA to take any action the message to other elected officials is to ignore the law.

It is time for our elected officials to be forced to read the Preamble to the Brown Act at the beginning of every meeting:

"In enacting this chapter, the Legislature finds and declares
that the public commissions, boards and councils and the other
public agencies in this State exist to aid in the conduct of the
people's business. It is the intent of the law that their actions be
taken openly and that their deliberations be conducted openly.
The people of this State do not yield their sovereignty to the
agencies which serve them. The people, in delegating authority, do
not give their public servants the right to decide what is good for
the people to know and what is not good for them to know. The people
insist on remaining informed so that they may retain control over
the instruments they have created."

And it is time for citizens to make it clear that we will not put up with elected officials who ignore the law and continue to operate in secret.


Like this comment
Posted by Sandy Brundage, Almanac Staff Writer
a resident of Menlo Park: Downtown
on Nov 1, 2010 at 7:39 pm

We have updated our story.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 1, 2010 at 7:44 pm

It has NOT been fully established that no Brown Act violation occurred.

The City Attorney has offered an opinion - that is NOT a judicial finding.

Here is what the Attorney General says:

"Typically, a serial meeting is a series of communications, each of which involves less than a quorum of the legislative body, but which taken as a whole involves a majority of the body’s members. For example, a chain of communications involving contact from member A to member B who then communicates with member C would constitute a serial meeting in the case of a five-person body. Similarly, when a person acts as the hub of a wheel (member A) and communicates individually with the various spokes (members B and C), a serial meeting has occurred."

Here is what the California League of Cities says:

"New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the

Brown Act."

"The Brown Act, however, is limited to meetings among a majority of the members of multi-member government bodies when the subject relates to local agency business."

Personally, I believe that a serial meeting did occur and that the emails did "relate to the agency's business."

Getting a pass from the City Attorney is hardly an arms-length transaction.

Why do our elected officials err on the side of caution and transparency rather than taking actions which require an attorney's opinion?

What is not clear about "It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly."?


Like this comment
Posted by looking on
a resident of Menlo Park: Downtown
on Nov 1, 2010 at 8:55 pm

Peter:

You're beating a dead horse. The Post should make apologies on their story, as there is no story other than the use of the City's e-mail server to transmit the messages. That may well be a story, but not the throwing in of the Brown act.

I'll give Cline a pass on the HSR incident. Certainly no intent there. Pretty soon we will have to have highly paid attorneys attending every meeting to make sure nobody steps out of line.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 1, 2010 at 9:01 pm

Looking On - you are wrong. Our elected officials have a habit of doing the public's business behind closed doors and just because each incident gets a pass from you or the City Attorney that does nor make it right or lawful.

What else have these officials had serial email discussions about that has not been made public, including serial email discussions using their own email accounts?

The horse is dead only if citizens are prepared to have their government operate in secret - I for one am not.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 1, 2010 at 9:09 pm

California League of Cities Brown Act Guide:
"Many
elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings
can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well
in business—the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises—are often not possible under the Brown Act.
As a matter of public policy, California (along with many other states) has concluded more is to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy."

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 on an item by the members of the legislative body.”


Like this comment
Posted by the real issue
a resident of Menlo Park: Linfield Oaks
on Nov 1, 2010 at 9:35 pm

I would agree that it seems the Brown Act was not violated technically. However, it is pretty clear from the discussion that there is a real lack of respect for council colleagues and fellow residents. That's the real issue.


Like this comment
Posted by Ano Nymous
a resident of Menlo Park: other
on Nov 1, 2010 at 9:46 pm

Gee, I feel so much better now that the MENLO PARK City Attorney has determined that the same old suspect trio of MENLO PARK City Council members are innocent. Would these be the same people who determine the salary and benefits of the Menlo Park City Attorney?


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 1, 2010 at 9:49 pm


What is missing, and for good reason, is TRUST in our elected officials. As noted above "Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy."

Trust

1.
reliance on the integrity, strength, ability, surety, etc., of a person or thing; confidence.
6.
the obligation or responsibility imposed on a person in whom confidence or authority is placed: a position of trust.
8.
something committed or entrusted to one's care for use or safekeeping, as an office, duty, or the like; responsibility; charge.


Like this comment
Posted by Bob
a resident of Menlo Park: Downtown
on Nov 1, 2010 at 10:00 pm

At what point do we hold our elected officials accountable?

Looking On stated that he would give Mr. Cline "a pass" since there was "certainly no intent."

Come on people there is a standard set for these officials; they should know the rules, including the Brown Act. If there is doubt, they should err on the side of being conservative rather than saying "I didn't mean to".

Would you be so forgiving if a surgeon made a minor error or would he/she face a malpractice suit?

It is a big deal when we constantly let our elected leaders side on these points.


Like this comment
Posted by Technicality This!
a resident of Menlo Park: other
on Nov 1, 2010 at 10:35 pm

More bureacratic BS from Peter C and company.
Regulations, paperwork and lawsuits - yea, that's what made America great, right Peter?


Like this comment
Posted by truth
a resident of Menlo Park: Belle Haven
on Nov 2, 2010 at 12:02 am

Sorry Technicality, your political slant should not cross with your understanding. Peter tried to make a huge deal out of the fact that three cities met with the head of HSR to take him on a tour of the train area that would be decimated by a 4 track overpass. Peter contends some smoky back room deal with the three city reps only because the three city reps who created the PCC and had the Brown Act enacted to bring more light to the meetings were in the same room for 30 minutes before they split up.

It is a sad misuse of a watchdog role.

You know why?

Because Peter still has not asked why Morris and Paul Callacchi met in private with a developer to negotiate taking money from said developer without anyone in the city knowing.

You know why?

Because Peter is part of the Morris menagerie. Anti council, anti government, bla bla bla.

You are either watchdog for all and against all or you are a political [portion deleted - name-calling].


Like this comment
Posted by Cure for Pancakes
a resident of Menlo Park: Linfield Oaks
on Nov 2, 2010 at 12:15 am

Did anyone make an FOA request for Andy's Council emails yet? Something tells me that if he's making "good-looking woman" remarks over the phone, there are probably some goodies in his email as well. All's fair, right Petey?


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 2, 2010 at 7:40 am

I make NO exceptions in my expectation that ALL elected officials comply with the Brown Act. The law is the law - period.


Like this comment
Posted by real truth
a resident of Menlo Park: Downtown
on Nov 2, 2010 at 8:43 am

"truth" - you keep bringing up private discussions with a developer by residents not holding office at a time the developer was considering altering their plans. The revised project, once submitted to the city, went through all the usual public process and scrutiny that other projects do. The Planning Commission recommended approval. The applicant hasn't taken it forward to the Council.
The city attorney was not a part of the discussions but did review the documents. He has vouched for the fact that no money did or will change hands.
The Council chose not to act on the referendum by putting it on the ballot or by rescinding the ordinance.
Give it a rest.


Like this comment
Posted by Nervous Hen
a resident of Menlo Park: Downtown
on Nov 2, 2010 at 9:45 am

Going back to the issue about a "ruling" from the City Attorney ... Earlier posters are correct - the fact that the City Attorney said he didn't see any Brown Act violation doesn't mean there weren't any violations. No investigation was done (did anyone interview the five council members to even ask what conversations they had in addition to emails?). This was not an investigation - just an email review. And not all emails were reviewed - just ones that the City determined met the criteria of the orginal reporter's request. There are certainly many other emails that were excluded.

Also, not only does the Council determine salary and benefits for the City Attorney, they hire and fire the City Attorney. So the same three who might be in violation of a Brown Act rule can fire the City Attorney in a heartbeat (it only takes three votes). A City Attorney would have to be nuts to say anything that sounded remotely incriminatory unless he was 100% sure a violation had occured.

Now THAT should tell you something about the need for an independent review. Too bad the DA won't step up. Who's watching the hen house?


Like this comment
Posted by Joanna
a resident of Menlo Park: Downtown
on Nov 2, 2010 at 10:56 am

If the Council can hire, fire and determine the salary of the city attorney, then there is a very clear conflict of interest.

Does the DA come up for re-election?


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 2, 2010 at 11:04 am

Joanna asks:"Does the DA come up for re-election?"

"San Mateo County Chief Deputy District Attorney Steve Wagstaffe has been elected the county's next top prosecutor after more than 30 years at the district attorney's office.

Wagstaffe ran unopposed in the June primary election and will take office in January. He succeeds District Attorney Jim Fox, who has held the position since 1983."


Read more at the San Francisco Examiner: Web Link


Like this comment
Posted by NotaLawyer
a resident of Menlo Park: other
on Nov 2, 2010 at 11:12 am

Council doesn't hire or fire Terry Francke. He also said no Brown Act violation.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 2, 2010 at 11:15 am

Nervous Hen states:'And not all emails were reviewed - just ones that the City determined met the criteria of the orginal reporter's request. There are certainly many other emails that were excluded."

Yes, the City Attorney only looked at a small subset of the emails that were exchanged between the MP Council members. I would be very interested in seeing all of the 'private' emails between the Council members.


Like this comment
Posted by Bob
a resident of Menlo Park: Downtown
on Nov 2, 2010 at 1:18 pm

It seems that some have a difficult time with the rules concept. How many of you would allow "infractions" during a sporting event such as football or baseball. How many of you would have cried foul during the world series if an outfielder had caught a pop fly only to drop it moments later, but say "I didn't mean to".

Rules are put in place so that we are all playing the same game. Elected leaders should know what the rules are and play by them.


Like this comment
Posted by Outside Looking In
a resident of Menlo Park: other
on Nov 2, 2010 at 1:33 pm

What bothers me about the Almanac's decision to finally bring this issue out in the open is that they didn't seem to care about the story in the first place, when the Daily Post broke the news.

Peter Carpenter talks about the lack of "trust" in elected officials, and I completely agree! I would go one step further, however, and say that there is a complete lack of trust in the Almanac's reporting. When the two endorsed incumbents were caught "blurring the lines" (as Robinson is apt to do!), there was very little, almost no, reporting of this story.

Now that there is an opportunity for the two incumbents (Almanac-endorsed candidates) to be seen in a more positive light, the Almanac suddenly wants to jump all over the story!?!? Well, as far as I'm concerned, who knows what kind of conversation took place between Robinson, Cline, Fergusson, Slocum, and/or Ferrick. But, I would trust the Daily Post's story much more than anything the Almanac writes!


Sorry, but further commenting on this topic has been closed.

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