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Menlo Park: Election e-mail removed from council log

Original post made on Nov 1, 2008

An e-mail sent by Menlo Park Councilwoman Kelly Fergusson to the council e-mail log on the city's Web site was swiftly removed following an allegation of impropriety by Menlo Park resident Frank Tucker on Oct. 20.

Read the full story here Web Link posted Wednesday, October 29, 2008, 12:00 AM

Comments (6)

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Posted by Callie
a resident of Menlo Park: The Willows
on Nov 1, 2008 at 11:26 am

Mr. City Attorney— Kelly Fergusson has been using the publically supported City Council Email Log to post campaign and other material. This is not an innocent mistake. This is quite literally a CRIME.

She has been sending emails to herself, at this log, and using it to communicate directly with other Council Members (specifically ILLEGAL by the Brown Act). After all, this is the posting for city council members to see. And she has been using it to communicate to the subscribing public at the city tax payer's expenses (which is ILLEGAL by State Law). (See the long list of legal transgressions below.)

Why Mr City Attorney do you defend Kelly Fergusson, instead of publicly calling her down?

Why aren’t her buddies on the Council who preach open and fair government on her case?

And by the way , Kelly Fergusson has taken courses in political campaigning, and these transgressions are hardly innocent mistakes.

- Attorney General's opinion No. 05-603 makes it clear that California law makes it illegal for public officials to use government resources to "campaign for one side or the other in an election contest".

- Gov. Code Section 54964.(a) says

"An officer ... of a local agency may not expend or authorize the expenditure of any of the funds of the local agency to support or oppose ... the election or defeat of a candidate, by the voters."

Kelly clearly violated this. "Expenditure" includes public resources and paid staff time.

- Gov. Code Section 8314 says in part:

(a) It is unlawful for any elected state or local officer ... to use or permit others to use public resources for a campaign activity, or personal or other purposes which are not authorized by law."

(b) (3) "Public resources means any property or asset owned by the state or any local agency, including, but not limited to ... facilities ... equipment, supplies ... computers ... and state-compensated time."

(b) (4) "Use" means a use of public resources which is substantial enough to result in a gain or advantage to the user or a loss to the state or any local agency for which a monetary value may be estimated.

Kelly clearly violated this, as well, since the Web site uses City equipment and staff time.

- Gov. Code Section 3205 says in part:

(a) An officer or employee of a local agency shall not, directly or indirectly, solicit a political contribution from an officer or employee of that agency ... with knowledge that the person from whom the contribution is solicited is an officer or employee of that agency.

(b) A candidate for elective office of a local agency shall not, directly or indirectly, solicit a political contribution from an officer or employee of that agency ... with knowledge that the person from whom the contribution is solicited is an officer or employee of that agency.

Since Kelly sent this to the City Council members, she may have violated this, as well.

- Penal Code Section 424 says in part:

(a) Each officer of this state, or of any ... city ... of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either: 1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use ... Is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state."

This could apply to Kelly, although I'm not sure that "public moneys" covers what she did.

Now, the DA and a court might find the magnitude of her misbehavior to be too small to pursue very far, but the Attorney General has come down hard on other public officials who improperly used public resources in violation of these laws.

I think that Kelly knows that she has exposed herself to some potentially serious consequences, and that is why she's been silent on the subject. In the worst case scenario (for her!) she could be barred from all public offices in CA!

Callie in the Willows

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Posted by what about rick?
a resident of Menlo Park: Sharon Heights
on Nov 1, 2008 at 12:50 pm

What is crystal clear is that Rick Ciardella has violated the California Fair Political Practices Commission rules about campaign mailings by not including the required campaign information so it is obvious who sent the material.

Sure hope you go after him with the same vengeance as you are Fergusson!

BTW - what in her email violated the Brown Act? Doesn't that only cover information related to decisions that the Council is to make?

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Posted by EPM
a resident of Menlo Park: other
on Nov 1, 2008 at 1:17 pm

The two questions in the initial post by Callie still need attention.

1. On Tuesday evening, why did the city attorneyn not mention any of the potential and serious violations? Was he ignorant of the various law citations made by Callie? That's pretty interesting. Do we need a new city attorney?

2. The second issue / question is..... Why did Ms. Fergusson not even acknowledge her mistake and appollogize? After four year on the council has she not learned the rules applying to government officials?

Whatever you think.... this is a poor performance by two of the current city officials. One doesn't seem to know. The other doesn't seem to admit the mistake / violation.

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Posted by Derelict
a resident of Menlo Park: other
on Nov 1, 2008 at 2:48 pm

What's with wondering why Ms. Fergusson would make a "mistake" by using the council email to distribute a fundraiser? Most who run for Menlo Park office are political novices but Kelly is an official of the San Mateo Democratic Party and arguably the most politically savvy human in Menlo. Remember her taking credit while a local VC she never met arranged to save Kepler's? Using the email and then removing it, "Ooops: Silly me!" might be a mistake, but when called out it's worth an apology. Referring it to the city attorney? Next we'll hire a consultant to help us create a new policy, right??

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Posted by save the venom
a resident of Menlo Park: Central Menlo Park
on Nov 1, 2008 at 2:52 pm

Was this topic on the Council agenda? If not, she could not talk about it. You seem to know enough about how government works to know this.

She worked really hard to help save Kepler's. So did others.

Sure wish your energy could be redirected towards something positive than to tear down people who work hard as virtual volunteers on our behalf, even if imperfect.

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Posted by voter
a resident of Menlo Park: Downtown
on Nov 1, 2008 at 3:03 pm

EPM/Callie, could be that the city attorney rightly determined that the mistake was harmless and immaterial. "Whatever you think" may be flawed, but the fact is that some of you -- having no better basis to attack current council members -- are trying to turn a minor incident into a scandal. Shame on you.

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

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