D.A. to review Fergusson's Brown Act violation


A review of Menlo Park City Councilwoman Kelly Fergusson's admitted Brown Act violation is being launched to determine if more legal action is needed to "cure and correct" the violation, according to county Chief Deputy District Attorney Steve Wagstaffe, who has directed his staff to conduct the review.

Mr. Wagstaffe, who will step up to the top position in the D.A.'s office next week, said a number of citizen complaints prompted his decision to direct two Brown Act experts in his office -- an investigator and an attorney -- to review the matter. He said he hopes the issue can be put to rest "within a couple of weeks."

Councilwoman Fergusson admitted that she violated the Brown Act by meeting one-on-one with at least two other council members to discuss her desire to be elected mayor in early December. The admission came after questions were raised by the public and the press, and City Attorney Bill McClure conducted his own review of the matter.

Ms. Fergusson said the violation was unintentional, but soon after she was elected mayor she announced she was resigning the position and would not consider herself eligible for it when the council voted again to name a mayor the following week.

Councilman Rich Cline, who served as mayor in 2010, was then elected to serve a second consecutive term.

Mr. Wagstaffe said his office will review whether the "correct and cure" action already taken by the council -- in accepting Mr. Fergusson's resignation and electing another person to the position -- was an adequate remedy to address the violation.

"We're going in open-minded, to find out what occurred," he said in a Dec. 27 interview with the Almanac. He said the review will include interviews with people involved in the matter, including Ms. Fergusson if she agrees to be interviewed. The investigator will start fresh, Mr. Wagstaffe said, determining to his own satisfaction whether a violation really occurred.

Regarding the possibility of criminal prosecution, Mr. Wagstaffe said Brown Act violations fall into more than one category -- some of which can be criminally prosecuted and others that cannot. Determining what category the violation, if one occurred, falls into will be part of the investigation, he said.

Atherton resident Peter Carpenter, a staunch Brown Act advocate, was among the most persistent citizens calling for action by the D.A.'s office, beginning soon after Ms. Fergusson was elected mayor. In an e-mail he wrote to Mr. Wagstaffe on Dec. 25, Mr. Carpenter said: "... nothing has been done to hold Fergusson accountable for her violation of the law.

"I urge you to take action in this case. If you turn your back on this proven and admitted violation then you are clearly signaling to all the other public officials in San Mateo County that they can ignore the Brown Act during your tenure as our District Attorney without fear of sanction or punishment."

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Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Dec 27, 2010 at 12:34 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".

Like this comment
Posted by POGO
a resident of Woodside: other
on Dec 27, 2010 at 1:44 pm

I at least want to acknowledge the District Attorney's office for this investigation. This is a good start.

All elected officials should take this as a warning that Brown Act violations are serious. And they should note that their status as elected officials does not indemnify them from criminal prosecution.

At the minimum, Ms. Fergusson deserves a few sleepless nights for her sheer insolence. She needs to respect those laws that she so easily imposes on others.

Like this comment
Posted by Menlo Voter
a resident of Menlo Park: other
on Dec 27, 2010 at 2:26 pm

I reserve judgement until I see the outcome of this investigation. The DA's office does not have a good record when it comes to policing the police or politicians.

Like this comment
Posted by Frugal
a resident of Menlo Park: Central Menlo Park
on Dec 27, 2010 at 5:33 pm

Kelly has served Menlo Park well and there's no harder worker.

On the other hand there were suspicions raised when at the last minute she changed her position to support of the Gateway project in return for some modest landscaping. Doubts were raised then about potential back-room politics.

Combine that with this clear violation of the Brown Act and earlier her admitted use of the City email for more back-room politicking, I for one have concluded she's no longer to be trusted and should resign.

Posted by Name hidden
a resident of Atherton: West of Alameda

on Sep 27, 2017 at 5:24 pm

Due to repeated violations of our Terms of Use, comments from this poster are automatically removed. Why?

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

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