News


Menlo incumbent files complaint with state bar

 

On the same day the Daily Post ran a front page apology for two stories and an editorial that said three Menlo Park council members violated the Brown Act by exchanging e-mails discussing campaign issues, one of those council members, Heyward Robinson, announced he'd filed a complaint with the state bar association regarding noted First Amendment attorney Terry Francke's involvement with the stories.

After the stories ran a few days before the Nov. 2 election, Mr. Robinson discovered that Mr. Francke had never actually seen the e-mails before the attorney declared "a very serious Brown Act violation" had occurred.

Once Mr. Francke did view the e-mails, the day before the election, he retracted his statement and apologized, saying there was in fact no Brown Act issue.

He told The Almanac this was the second correction run by the Post and that he had personally apologized to Mr. Robinson. "I've read the complaint and I sympathize with its sentiment, but I've checked the Rules of Professional Conduct and don't see any that address this situation," Mr. Francke said.

The complaint filed on Nov. 5 asked the state bar to hold the attorney accountable for his errors "and their serious and irreparable consequences," namely, the possible political harm done to the two council members running for re-election.

"It most certainly did political damage to the incumbents, causing some to vote against them," Mr. Robinson wrote in the letter.

He told The Almanac that his review of precinct-level voting data from San Mateo County showed a weaker-than-expected performance in the precinct encompassing the Willows neighborhood; copies of the Post stories were distributed to the neighborhood's Yahoo message board online.

"To see that tells me something had an effect, but I don't think it was any one factor," Mr. Robinson said, explaining that fellow incumbent Rich Cline's third-place finish came as more of a surprise than his own loss.

Another factor he cited as affecting the election included lack of public awareness about the council's accomplishments during the past four years.

Since both incumbents were mentioned in the Post stories and share a similar history of service on the council, yet Mr. Cline will keep his seat on the dais, there may be an additional factor at work.

The passage of the pension reform initiative by 71 percent indicates most Menlo Park residents supported Measure L. While Mr. Cline chose to stay publicly neutral about the initiative, Mr. Robinson openly opposed it.

Data released on Nov. 17 by the county suggests the articles may not have had a huge impact; Mr. Robinson trailed the other incumbent by 167 votes among those cast on election day a slightly smaller gap than in the vote-by-mail category. The same trend held for Mr. Cline's distance behind second-place winner Kirsten Keith.

Still, notoriety is not the sort of attribute that wins elections. "Certainly it doesn't help to have blazing headlines that say 'e-mails expose incumbents,'" Mr. Robinson said. "Unfortunately journalism is largely self-policed. There's not a lot of recourse for someone on the other end of an incorrect story, especially if you're a public figure."

The Daily Post did not respond to Almanac requests for comment.

Note: An earlier version of this story said the complaint was filed Nov. 19, based on the date written at the top of the letter provided to The Almanac by Mr. Robinson. Mr. Robinson has now said the date on the letter was incorrect, and the complaint had been filed on Nov. 5.

Comments

Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 23, 2010 at 12:22 pm

Robinson would clarify this matter if he simply releases ALL of his personal emails that are addressed to ANY of his council colleagues. So far the public has seen only a very small sample of these emails and no judgement can be made on any Brown Act violations until we see every such message.


Like this comment
Posted by Central Menlo
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 12:49 pm

Peter,
Stay on topic,svp.

This is an issue about an unfounded accusation made by Mr. Francke, that may unfortunately influenced voter turnout, and as result of timing and mistatements, may have affected voter preference and election results.

This is not an issue of whether the Brown Act was violated. That may be an issue and that would be subject some other article or forum, but that is not the issue here.
Jim


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 23, 2010 at 12:55 pm

Central Menlo - reread the story:"On the same day the Daily Post ran a front page apology for two stories and an editorial that said three Menlo Park council members violated the Brown Act by exchanging e-mails discussing campaign issues, one of those council members, Heyward Robinson, announced he'd filed a complaint with the state bar association regarding noted First Amendment attorney Terry Francke's involvement with the stories."

Sure sounds like the question is about wether or not a Brown Act violation occurred - if not, what is Robinson suing about?


Like this comment
Posted by Sandy Brundage, Almanac Staff Writer
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 1:06 pm

A complaint was filed with the state bar, not a lawsuit.


Like this comment
Posted by Steve
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 1:08 pm

Peter -
Seems to me that it has already been established that there was no violation of the Brown Act. The issue is what recourse a candidate has who has been falsely accused by a newspaper less concerned with facts than it should have been in the days before the election.
Sounds like the real issue is partisan political chicanery and whether those involved should be held responsible.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 23, 2010 at 1:38 pm

Steve states:"Seems to me that it has already been established that there was no violation of the Brown Act."

What has been established is that a very small number of personal emails that were made public did not violate the Brown Act. What has NOT been established is were there other personal emails to his council colleagues from Robinson that may have violated the Brown Act. Since Robinson wants to make an issue of this then he should release ALL of his personal emails to his colleagues so that it can be proven that he did not violate the Brown Act. The ball is in his court.


Like this comment
Posted by council watcher
a resident of Menlo Park: other
on Nov 23, 2010 at 2:09 pm

Heyward lost because the voting public had seen plenty of examples of his immaturity, short fuse, long-winded manner, and inability to apply logic to issues at hand.

The three councilmembers were pretty cavalier about using email in a manner that could easily be construed as a violation of the Brown Act. (Since we don't have all the emails, we don't know if there was any actual violation.) Their behavior suggests a lack of respect for the people they serve.

It is pretty clear to me that most people were unaware of Francke's comments or both Heyward and Rich would have wound up in fifth and sixth place. Heyward has no case, should get over his petty whines, and try to move on with his life.


Like this comment
Posted by Interested
a resident of another community
on Nov 23, 2010 at 3:10 pm

I think it might be appropriate for the Almanac to report the amazing work that Terry Francke has been doing for at least the last ten years on Brown Act violations. His work ensuring the public are aware of the actions taken by our local officials has been nothing less than admirable.

The Almanac has been using Mr. Francke in its story's for at least a decade. In many cases his opinion was sought on matters that would otherwise have gone unnoticed. His commitment to the "purpose" of the Brown Act and "Open" government are deserving of respect.

Mr. Francke made a mistake, identified it, and apologized for it. Heywood Robinson will achieve no higher office, but his lawsuit will keep his name in the papers. That is all he will achieve.


Like this comment
Posted by Pollster
a resident of Menlo Park: Menlo Oaks
on Nov 23, 2010 at 3:31 pm

It was known by pollsters that Heyward's reelection bid was in trouble well before this email dustup began.


Like this comment
Posted by Joanna
a resident of Menlo Park: Downtown
on Nov 23, 2010 at 4:46 pm

Robinson's defeat was his own fault. He was an ineffective council member and was unfit for office. Thankfully he will be gone!

Blaming his defeat on any other thing is ridiculous.


Like this comment
Posted by Central Menlo
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 5:49 pm

For goodness sakes, yous guys don't get it.

This isn't about Heyward losing, or being effective, or ineffective. That might be the case, but that isn't the issue.

The issue is whether the Daily Post and Mr. Francke were out of line, unethical, immoral, or just plain simple, for baseless statements. Fortunately, both have apologized, but the whole thing was wrong.

...unless the posters and pollsters want to make their judgements and allow the end to justify the means. I voted for the three who were elected, but I won't for a second, justify Mr. Francke's sloppy statements (at best) or underhanded pre-election maneuvers.

I hope there is more moral character in this forum, than a simple belief that Heyward deserved it. No one does, and it would be a sad day if that's not understood at a very, basic level.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 23, 2010 at 6:02 pm

Central Menlo states:"the whole thing was wrong."

Let's see - we have an elected official objecting because he was accused of a Brown Act violation based on a very small sample of his personal emails to other elected officials. Every personal email by an elected official to another elected official is a public matter and subject to the Brown Act. The story in question clearly proved that Robinson was using personal emails to communicate with other elected officials - whether those emails violated the Brown Act can only be determined after ALL of them have been made public, not after a small sample of those emails was uncovered by the press.


Like this comment
Posted by Central Menlo
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 6:35 pm

So peter, you condone Mr. Francke's statement, because you think it's justified?

Of course, email sent to public figures (on their public accounts) is public information. Whether they the sender is elected, or not.

The story is whether Mr. Francke's statements were incorrect, or inappropriate.
[Porton removed; terms of use. refrain from attacking other posters.]


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 23, 2010 at 6:53 pm

As stated above:"The story in question clearly proved that Robinson was using personal emails to communicate with other elected officials - whether those emails violated the Brown Act can only be determined after ALL of them have been made public, not after a small sample of those emails was uncovered by the press."

I neither condone another's statement or make an accusation - I simply state that the question of a Brown Act violation remains unproven but is a legitimate question given the fact that Robinson used personal emails to communicate with other elected officials.

And both private and public emails of an elected official to another elected official are subject to the Brown Act.


Like this comment
Posted by Central Menlo
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 6:57 pm

Portion transcribed without attacking PC, or anyone in particular(which Ed, I wasn't doing):

peter, I hope you would agree with the idea that we presume innocence, until proven otherwise. Let's say, for example, that I didn't like Mr. Robinson. Could I say that he is guilty, based on a small sample of Heyward's email, which was too small to prove anything?

You could accuse me of being simple, based on the biddy sampling of my posts to this forum. Guilty of being very, very simple. And small-minded. I doubt we'd want to live in that world.


Like this comment
Posted by Wrong Name
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 8:00 pm

The attorney in question is Tony Tanke, not Franke.


Like this comment
Posted by Joan
a resident of Menlo Park: Central Menlo Park
on Nov 23, 2010 at 9:03 pm

Wrong name, Terry Francke and Tony Tanke are two different attorneys, both serving the public interest. Francke is indeed the attorney involved in this case, and has been a beacon for First Amendment and public disclosure advocacy. Tanke was involved a number of years ago in a public interest lawsuit against the sanitary district after its board appointed one of its own members to the top administrative position. He won the case, thankfully.


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 24, 2010 at 3:26 am

Central Menlo - please read what I have repeatedly posted:
I am not making an accusation - I simply stated that the question of a Brown Act violation remains unproven but is a legitimate question given the fact that Robinson used personal emails to communicate with other elected officials.

And both private and public emails of an elected official to another elected official are subject to the Brown Act.


Like this comment
Posted by Interested
a resident of another community
on Nov 24, 2010 at 6:52 am

Peter Carpenter is not condoning Mr. Francke's error. Neither is Mr. Franke, hence his apology.

Peter is correct that all of Mr. Robinson's emails to other council members are subject to disclosure, and he is absolutely correct.

Personally I am glad Mr. Robinson has filed his complaint against Mr. Franke. It may well cause all of those emails to be disclosed. Then we will see if Mr. Robinson has managed to "shoot himself in the foot". As he has managed to do so well in the past.


Like this comment
Posted by Maria
a resident of Menlo Park: Sharon Heights
on Nov 24, 2010 at 2:31 pm

These two comments of mine are not on the original sdubject, but here goes...I didn't vote for Heyward as he was always "too busy" to listen.

I wish Peter Carpenter would comment on Atherton and not Menlo as he lives in Atherton. IOf course, it isd his right to do so, but I get tired of his kn ow-it-all attitude.


Like this comment
Posted by Interested
a resident of another community
on Nov 24, 2010 at 5:49 pm

Maria. Let me assure you I am not an apologist for Mr. Carpenter. Lord knows we have disagreed on many issues. Vehemently in some cases. The one thing we share is the desire that government, all government, conduct its business in the public eye.

We have little opportunity to ensure our business is conducted in this way at the state and federal level, but we sure as hell can insist that it is done at the local level.


Like this comment
Posted by Central Menlo
a resident of Menlo Park: Central Menlo Park
on Nov 25, 2010 at 8:32 pm

Peter, I understand the point you make, and don't disagree. Where I was going was to separate the issue of Mr. Francke's unfounded accusation (unfounded because he apparently made his statements without seeing/reading the emails). Whether Heyward violated the Brown act in this incident, or at other times (by using his public, or personal email account) is a separate (and maybe valid) concern.


Like this comment
Posted by Just Wondering
a resident of Menlo Park: other
on Nov 26, 2010 at 10:14 pm

From "Howard" under the PA Weekly post on this topic, a post which says it all to all the "nit pickers" out there (Peter C, are you listening? Whom I am kidding - of course, you are!):

"The bigger story here is that the Brown Act is an absurdly overreaching, typically Californian extreme remedy for supposed horrors. It is a trap that ensares innocent "common sense" behavior and grist for nit pickers like the attorney involved here."


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 27, 2010 at 5:35 am

Please nit pick the following:

“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.”


Like this comment
Posted by Interested
a resident of another community
on Nov 27, 2010 at 8:46 am

Peter, I think Nit Picking might learn from this wonderful statement

"Those who cannot remember the past are condemned to repeat it."

The Brown Act was enacted for a purpose and for good reason.


Like this comment
Posted by Menlo Voter
a resident of Menlo Park: other
on Nov 27, 2010 at 9:11 am

The Brown act was created for a reason. Unfortunately, it is not much more than a paper tiger when those charged with enforcing it, don't. Our local officials have figured this out and routinely violate the act with impunity.


Like this comment
Posted by looking on
a resident of Menlo Park: Central Menlo Park
on Nov 27, 2010 at 10:28 am

Menlo Voter indeed gets this right, that the Brown act really doesn't do what it should be doing and that there are numerous violations, intentional and not intentional.

The real corruption occurs in Sacramento and further upstairs.

Isn't democracy wonderful!


Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Nov 27, 2010 at 10:57 am

Violations to the Brown Act will only stop when citizens turn up to the meetings of the offending officials and demand that they follow the law.


Like this comment
Posted by Menlo Voter
a resident of Menlo Park: other
on Nov 27, 2010 at 11:16 am

I'm sorry Peter, but showing up to meetings isn't going to do a damn thing. When the DA starts actually prosecuting violations, the politicians will sit up and take notice and not until then. They all have a "better to ask forgiveness" mentality because they know there will be no repercussions. Even if the citizenry showed up and demanded it, it will make no difference. They already ignore us on so many other issues; do you really think they are going to pay attention to this one? Without the club of prosecution in play, they will continue to ignore the Brown Act.


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

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