Atherton: Top choices for city attorney post

Wynne Furth went out of her way to try and exonerate Jerry Carlson for violating California FPPC conflict of interest laws and Elizabeth Lewis for illegal construction. She failed miserably.

Now Carlson and Lewis are rewarding Ms. Furth by ranking two firms above Furth's firm in the selection process.

It is quite likely Furth feels betrayed. She should get over it, this is the price one pays when one's masters are politicians.

The four citizens, myself included, who served on this committee had no axes to grind or obligations to any of the law firms being considered when we made our recommendations.

Mr. Carpenter.

Since you were on the selection committee, can you tell me whether Mr. Carlson and Ms. Lewis will recuse themselves from the selection process? It seems as though they should not be heading a committee to select a new city attorney after having been investigated by Ms. Furth.

The involvement of these two council members after Ms. Furth's apparent attempt to exonerate them improperly smacks of impropriety.

The rules for recusal are clear and reasonable and do not require council members to recuse themselves in the selection of a Town Attorney if one of the law firms involved has a partner who had previously provided legal advice regarding those council members.

If everyone with knowledge of a matter were forced to recuse themselves then decisions would be made, by definition, by people who were uniformed - not a desirable outcome.

That's just not knowledge of a matter, Peter. That's having been the recipient of favorable opinions from Furth that would have had a significant political impact. I see quite a difference.

Legal opinions are just that - opinions. The council members involved still had to act in accordance with the law or they would have been vulnerable to legal action. The Town Attorney has NO authority to do anything except provide advice.

Carpenter's response is odiferous. The logic in his last post is flawed.

Furth report on Carlson, Lewis was a transparent attempt to make it look as though these two [portion deleted] politicians did nothing wrong.

To suggest that had the politicians done something wrong they would have been subject to legal action is ridiculous. The City Attorney had no business investigating the complaints brought to the City's attention. Instead Furth should have recommended an independent authority to investigate the matter.

Carepenter's latest post shows he's no savior, no champion of transparency. He is a fence sitter.

Whenever it looks as though the corrupt establishment will prevail, "Mr. Sunshine" jumps off the fence and hops right on board the bandwagon.

Smell test - why can't you make your case without denigrating other posters?

And if you want to have any credibility in attacking my willingness to hold elected officials accountable please list the number of specific actions that you have taken to that end. How many Cure and Correct letters have you sent, how many sunshine ordinances have you authored, how much have you spent of legal fees challenging the lack of transparency?

And how many different anonymous names have you used? How can you be held accountable for your outrageous statements?

Smell states:"To suggest that had the politicians done something wrong they would have been subject to legal action is ridiculous."

In fact that is exactly the way the LAW should and does work. Why do you think that Fergusson isn't Mayor of Menlo Park?

Getting an opinion from someone, even a lawyer, does not immunize anyone from being subject to the law. We are a nation of laws not of the whim of some anonymous poster.

Beg to respectfully differ with Mr. Carpenter here. Although reliance on the advice of counsel not shield individuals from civil liability (the theory being the person receiving the "bad" advice can sue their attorney for malpractice), courts have long recognized an "attorney reliance" defense in the criminal context. It's not automatic. The person claiming the defense needs to show that before taking the action in question, (1) s/he sought the advice of an attorney in good faith, an attorney whom s/he considered to be competent, for the purpose of receiving advice on the legality of his/her future conduct, (2) made a full and accurate report to the attorney of all of the facts, and (3) acted strictly in accord with the advice the attorney gave.

Legal Scholar is correct but note that the burden of proof rests on the person claiming the defense and it may or may not be successful. The individual remains subject to the law.

I also failed to note that the opinions which the Town Attorney provided to Lewis and Carlson were AFTER the events had occurred and hence the legal defense suggested by Legal Scholar would have had no value.

Not quite...in the case of Mr. Carlson, Ms. Furtb's opinion provided that he could continue to serve on the rail committee without conflict. It certainly provided political cover as well as covered any possibility of criminal charges being brought from that point forward, however unlikely that would be. However, the political cover aspect is non-trivial, particularly when speaking of politicians.