New Menlo Park mayor may have violated Brown Act

Council members confirm one-on-one talks with Fergusson

Allegations of Brown Act violations arose after the Menlo Park City Council elected Kelly Fergusson as mayor on Tuesday, Dec. 7.

Ms. Fergusson held one-on-one discussions with at least three council members about becoming mayor. The state's open meeting law, known as the Brown Act, prohibits elected officials from conducting a series of one-on-one meetings with each other without public notice "if done to develop a collective concurrence as to action."

The Brown Act applies to current and newly elected council members, regardless of whether they have yet been sworn into office, according to First Amendment and open records expert Terry Francke.

Council members Rich Cline and Peter Ohtaki confirmed the discussions with Ms. Fergusson. Former member Heyward Robinson said he'd also met with her, but that conversation did not violate the Brown Act since he would no longer be on the council by the time the vote for mayor was taken.

"Kelly and I did discuss the upcoming mayoral vote, and I did expressly tell her I was planning to follow the protocol. I had no interaction with other electeds," said Mr. Cline.

Mr. Ohtaki said he was unaware that Ms. Fergusson had met with more than one council member. "It's not my intention to put her in an awkward position," he said. "She called and asked to meet."

Now chosen twice as mayor, Ms. Fergusson has served on the council since 2004.

In an interview, she refused to answer questions about the meetings, saying, after a long pause, "You know ... I'm going to refer you to (city attorney) Bill McClure."

She said she hadn't discussed the meetings with the city attorney, and that it was a great honor to have been selected mayor. "I'm really looking forward to working with the whole council for the betterment of Menlo Park."

The tete-a-tete with Mr. Ohtaki failed to earn his support. He nominated Councilman Andy Cohen for mayor instead, based on Mr. Cohen's support for Measure L, the pension reform initiative, and overall fiscal responsibility.

But despite statements to the contrary -- "I didn't campaign for this position," Mr. Cohen told the audience on Tuesday night before the vote -- he had asked the council and incoming members Kirsten Keith and Peter Ohtaki for the job in a memo mailed last month that outlined his qualifications to be mayor.

Mr. Cohen has yet to respond to the Almanac's request for comment, as has City Attorney Bill McClure.

Earlier story: Kelly Fergusson elected Menlo Park mayor by 3-2 council vote


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Posted by Bob
a resident of Menlo Park: Central Menlo Park
on Dec 8, 2010 at 3:55 pm

Good work Almanac. We appreciate the follow-through.

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Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 8, 2010 at 4:09 pm

William McClure

City Attorney
City of Menlo Park

Via email

Subject: Cure and Correct regarding the 7 December 2010 election of Mayor

Dear Mr. McClure,

Pursuant to the Brown Act this is a Cure and Correct demand that the Menlo Park City Council’s election of Mayor and Vice Mayor be declared null and void because of the violation of the Brown Act’s prohibition of serial meetings.

There is reasonable cause to believe that at least one council member and or his/her intermediaries communicated with two or more of the other council members or council members-elect in private prior to this meeting regarding the agenda topic of election of Mayor and Vice Mayor.

Since such private communications are prohibited by the Brown Act, I hereby request that you, as the City Attorney, declare the Council’s actions on this item at their 7 December 2010 to be null and void and that you then direct that this item be placed on a future open meeting agenda. I further request that you direct the council members that they are prohibited by law from discussing this matter amongst themselves or via intermediaries except in open public session.


Peter Carpenter

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Posted by Joanna
a resident of Menlo Park: Downtown
on Dec 8, 2010 at 4:49 pm

I am pleasantly surprised that you ran this story! Thanks!

Like this comment
Posted by Concerned
a resident of Menlo Park: Central Menlo Park
on Dec 8, 2010 at 5:19 pm

Isn't this the second time Ms. Fergusson has been accused of this? For some reason I believe I saw a similar thread on a Brown Act violation about 2-3 months ago? Does anyone remember this? And if this is the second time she's been accused, and possibly the first time it comes out that she is in fact guilty of this, she needs to step down. I also agree that someone else would be MUCH more fiscally responsible, but my larger concern is the way Kelly conducts herself legally.

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Posted by interesting
a resident of Menlo Park: Downtown
on Dec 8, 2010 at 5:31 pm

Brundage notes that Cohen has yet to respond to her request for comment.

I presume he doens't care to weigh in.

After all, he wasn't involved in the conversations, and considering that Ms. Brundage's coverage of the LeMieux incident could be viewed as really an attempt to smear his reputation, why should be respond.

Like this comment
Posted by henry fox
a resident of Menlo Park: The Willows
on Dec 8, 2010 at 5:50 pm

What about Kirsten Keith, who I have heard said dislikes Kelly? Has anyone spoken to her?

I just watched last-night's council meeting on the web and it seemed obvious to me that she expected to become vice-mayor, even though Otaki recieved more votes.

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Posted by Bob
a resident of Menlo Park: Downtown
on Dec 8, 2010 at 6:42 pm

So much for Kelly's leadership.....

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Posted by Responsibility
a resident of Menlo Park: other
on Dec 8, 2010 at 6:44 pm

Cohen smeared himself. No one else is responsible for his comments about LeMieux or for lying to the council last night by saying he hadn't campaigned for mayor.

Like this comment
Posted by ZZzzzzzzzz
a resident of Menlo Park: other
on Dec 8, 2010 at 9:52 pm

Wake me up when something of actual significance happens....

Like this comment
Posted by WoW
a resident of Menlo Park: Suburban Park/Lorelei Manor/Flood Park Triangle
on Dec 9, 2010 at 8:30 am

Oh come on.... Will anyone step up other than Peter Carpenter????????

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Posted by Lee Duboc
a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 8:48 am

This IS important. Why? This is all about can we trust our elected leaders who show such little regard for the law. My answer, no. The Brown Act was enacted so that we, the little guy or gal, can be assured that the decisions made by our elected officials happen in the daylight -- under rules that specify proper noticing of meetings as well as record keeping. Backroom deal-making and quid-pro-quo arrangements shuts the door on governmental decision making.

If as one of the writers says -- wake me up when something important happens -- doesn't care about open and honest government, well, that is sad. Menlo Park's Mayor has shown she has no respect for this law. Does she have respect for any law? How about the law governing closed door labor negotiations? Can we trust that she is not talking to the union leaders about private negotiating tactics the council has discussed with its management and lawyer/negotiators? How do we know? Do we trust she will obey that law?

I hesitate to comment on this in this forum as I fear the discussion will be twisted to become all about me so that the Mayor's supporters can do the "don't look here; look there!" tactic.

Bottom line -- we have a serious situation here. And I hope something is done. Menlo Park deserves better from its elected leadership.

Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 9, 2010 at 9:41 am

Wow asks:"Will anyone step up other than Peter Carpenter????????"

Great question - one would hope that at least one Menlo Park resident would be concerned enough to also submit a Cure and Correct letter to the City Attorney. Unless, of course, no one else cares about open and transparent government.

Like this comment
Posted by Interested
a resident of another community
on Dec 9, 2010 at 10:24 am

What happens when elected and appointed officials collude behind closed doors?

We get a City like Bell, California.........Don't tell me it can't happen. It already has.

Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 9, 2010 at 10:34 am


Menlo mayor election will be voided

Council to re-vote on mayor, vice mayor

by Sandy Brundage

Almanac Staff


Menlo Park council member Kelly Fergusson said in an e-mail today that the election of mayor and vice mayor two days ago will be voided and the council will hold a special meeting to re-vote on both positions as a result of potential Brown Act violations on her part.

She made the statements in an e-mail sent to the Menlo Park City Council on Thursday, Dec. 9, after she consulted the city attorney.

She said she accepts full responsibility for potentially violating the Brown Act by holding one-on-one discussions with colleagues Rich Cline and Peter Ohtaki about her desire to become mayor, and will be "extremely careful" in the future.

As The Almanac reported on Wednesday, neither Mr. Cline nor Mr. Ohtaki said they knew she had spoken to more than one council member.

Ms. Fergusson, who has served on the council for six years, also said she will take a refresher course on the Brown Act.

Per council policy enacted in 1993, Ms. Fergusson and council member Andy Cohen are the two eligible candidates to become mayor. Both made a pitch for the position at the Dec. 7 meeting.

The Almanac will update this story as more information becomes available.

Like this comment
Posted by Brick Wall
a resident of Menlo Park: Downtown
on Dec 9, 2010 at 11:43 am

Like...a refresher course is going to make a difference?

Like this comment
Posted by Menlo Park Citizen
a resident of Menlo Park: other
on Dec 9, 2010 at 12:44 pm

When Kelly first ran for office she may well have had the betterment of Menlo Park in mind; however over the years her voting record and her recent violation of the Brown Act have show to me that now she has her own political career at the top of her list. We have individuals on the City Council who can better serve us now at a time of serious budget crisis, and the upcoming issues regarding union negotiations and Downtown Plan.

Let's clear away all doubt, and address the serious needs of Menlo Park with someone other than Kelly as Mayor.

Like this comment
Posted by Resident
a resident of Menlo Park: Downtown
on Dec 9, 2010 at 4:12 pm

We need sober and steady management from City Council in light of the serious issues facing our city.

I believe Kelly's violation of the Brown Act combined with her scattered and disorganized showing at the meeting after she took the Mayor's seat indicate that another, steadier hand is needed to captain the ship.

Kelly would continue to serve on Council and contribute, but it would be better if she now stepped aside in the interest of the city and smoother sailing in the year ahead.

Like this comment
Posted by wright
a resident of Menlo Park: other
on Dec 9, 2010 at 6:13 pm

Increasingly, Kelly Fergusson seems to put her own interests above those of the citizens who elected her. In this case, she should not merely step down now in order to bring about another mayoral election; she should not herself expect to be mayor. No council member should nominate her. I think that she has wanted this position too badly -- a sure sign of a misguided "leader." Let's hope that the next mayor keeps the needs of Menlo Park foremost in his mind.

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Posted by William
a resident of Menlo Park: Felton Gables
on Dec 9, 2010 at 6:15 pm

I understand from Lee Du Boch that prior to Tuesday's council meetng, Kelly Ferguson told Peter Otaki that she has the three votes needed to win the mayor's race. Regardless of how that came about prior to the meeting or voting, I think it shows extremely poor judgement on Kelly's part to make such a statement. Is this the loose cannon we want carrying out the city's negotiations with the unions in the coming year? I don't think it would be wise to re-elect her.

Like this comment
Posted by Susan
a resident of Menlo Park: Sharon Heights
on Dec 9, 2010 at 8:13 pm

Is there too much collusion going on here (kelly-Rich-Kirsten)? Kelly should bow out, and then the council should consider someone other than Kirsten for vice mayor. Who nominated her? Kelly or Rich? Doesn't precedent suggest that the higest vote getter (Peter in this case) should be vice mayor?

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