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District Attorney fails to enforce the law

Original post made by peter carpenter, Atherton: Lindenwood, on Jun 14, 2011

Dear Mr. Serrato,

I am amazed that the District Attorney delegates so much of its legal analysis to the County Counsel - why do the taxpayers need both offices?

You and the County Counsel maintain that a secret ballot (as the Board President stated was used) is neither a vote nor an action and hence is not a prohibited action under Section 54953c which states (c) No legislative body shall take action by secret ballot, whether preliminary or final.

You also claim that the agenda need not provide for the explicit opportunity for public comment in spite of the fact that the law clearly states that at every special meeting, the legislative body shall provide the public with an opportunity to
address the body on any item described in the notice before or during consideration of that item. (§ 54954.3(a).) and that the special meeting notice shall describe the public’s rights to so comment. (§ 54954.3(a).)

In my opinion you are bending over backwards to defeat the purpose of the Brown Act rather than simply enforcing the law as written.

I hope that the public will note and long remember your failure to act in the PUBLIC'S INTEREST.


Peter Carpenter

On Jun 10, 2011, at 6:02 PM, Al Serrato wrote:

Dear Mr. Carpenter,

I have had the opportunity to review the allegations you raised about possible Brown Act violations in connection with the May 10, 2011 regular meeting of the Menlo Park City School District Board of Education. I have also reviewed the letter of Deputy County Counsel Timothy Fox regarding those allegations, a copy of which was provided to you.

Your complaint regarding the meeting was twofold: 1) that the Board made use of a secret ballot to select a superintendent; and 2) that the Board failed to provide the public with an opportunity to comment prior to the selection. You asked that the Board cure and correct these alleged violations.

Having obtained Board approval, Mr. Fox was able to provide more information than was initially available to the public. Having reviewed the information he disclosed, it is apparent to me that a secret ballot, as that term is used in the Brown Act, was not utilized. Because the topic under consideration was the appointment of a superintendent, it was an appropriate matter for closed session consideration. While the comment made by the Board president may have created this impression, in fact no balloting, secret or otherwise, was being utilized. Instead, what occurred in closed session was a prioritization of candidates for consideration. Moreover, there was no “action taken” within the meaning of the Brown Act; all that occurred was a discussion and ranking, and a decision to conduct more investigation of the top three candidates.

As to the concern that the public was not allowed to comment prior to the decision to appoint Mr. Ghysels as Superintendent, I can find no requirement in the Brown Act that individualized notice must be accomplished before discussion of possible appointments is conducted. Instead, the Brown Act requires an opportunity for public input prior to ratification of an employment contract. As indicated earlier, discussion of personnel matters is properly done in closed session. The procedure utilized here complied with the requirements of the Act, as the public was afforded an opportunity to comment before the decision to employ Mr. Ghysels was ratified. Moreover, as Mr. Fox indicated in his letter, even assuming that there was a problem with the manner in which notice was given, the Legislature has not given us authority to seek judicial relief in these circumstances, as section 54954.3 is not among the sections that allows for judicial review.

For the reasons indicated, I concur with Mr. Fox’s determination, on behalf of the Board, that no “cure and correct” is required pursuant to the provisions of section 54960.1(c)(2) as no violation of the Brown Act occurred.

Thank you again for your interest in ensuring that the actions of local government remain transparent.


Albert A. Serrato

Assistant District Attorney

Comments (13)

Like this comment
Posted by Ed
a resident of Atherton: other
on Jun 14, 2011 at 5:35 pm

Thank you Peter for sticking with this and all the other related issues in our surrounding communities, with your efforts to correct how governance functions in SMC.

Like this comment
Posted by Michael G. Stogner
a resident of another community
on Jun 14, 2011 at 5:39 pm

Thank You Peter,

I support your efforts in finding a District Attorney who will enforce the Brown Act Laws.

Like this comment
Posted by Menlo Voter
a resident of Menlo Park: other
on Jun 14, 2011 at 7:22 pm


it is obvious to me that this DA will not enforce the Brown Act. The only way it is going to happen is if the AG gets involved. We happen to have very liberal AG, so there might be some small possibility.

Like this comment
Posted by POGO
a resident of Woodside: other
on Jun 14, 2011 at 9:01 pm

This is a disgusting display of our DA playing ostrich.

Good thing I believe in karma.

Like this comment
Posted by Bob
a resident of Menlo Park: Central Menlo Park
on Jun 15, 2011 at 12:36 am

[Portion removed. Personal, family matter.]

It will also be interesting to see what "his" investigation of San Carlos City Council meetings turns up.

Like this comment
Posted by Bob
a resident of Menlo Park: Central Menlo Park
on Jun 15, 2011 at 12:53 am

By the way will the new MP schools sup Maurice Ghysels be allowed to keep his executive coaching position at Brandon Partners? Web Link

[Portion removed. Personal matter that doesn't seem relevant to this topic.]

Like this comment
Posted by agree
a resident of Menlo Park: Central Menlo Park
on Jun 15, 2011 at 3:59 am

Between Wagstaffe and Bill McClure, they both managed to cover over the Brown act violations of Fergusson, [Portion removed; stick to facts, not speculation.]

Carpenter deserves credit for trying, but it is just sort of an impossible fight. McClure and Wagstaffe work together on MP issues, and boy they sure covered the mess that Fergusson pushed on Council. Disgusting.

Like this comment
Posted by Hank Lawrence
a resident of Menlo Park: Sharon Heights
on Jun 15, 2011 at 7:36 am

There is no proof that Keith was an intermediary yet the speculation continues. If you have proof then please offer it. But to cast aspersions based on gossip or inuendo does not do anyone any good.

From what I have seen so far Kirsten Keith is an ethical council person and we should all give her the benefit of the doubt until proof is presented to indicate otherwise.

Like this comment
Posted by agree
a resident of Menlo Park: Central Menlo Park
on Jun 15, 2011 at 7:55 am


I you think Keith's manipulation into the vice-mayor slot was anything but ethical, you really have blinders on. She is just as political ambitious as Fergusson. Note her self promotion for the Sam Trans board with eventual aspirations to the PCJPB, but yet she has no qualifications for either position.

Like this comment
Posted by 5th Amendment
a resident of Menlo Park: other
on Jun 15, 2011 at 8:04 am

Remember, the only councilmember who took the 5th and refused to talk to the District Attorney was Mrs. Fergusson. What is the 5th Amendment? The right to remain silent and not INCRIMINATE yourself. It's embarrassing. Mrs. Fergusson may have escaped criminal prosecution, but we should never forget that we will never have true sunshine on the events that occurred, because Mrs. Fergusson feared being charged criminally if she told us.

Web Link

Like this comment
Posted by Anonymous
a resident of Menlo Park: other
on Jun 15, 2011 at 10:21 am

[Post removed; stick to facts, not hearsay and innuendo that slander others.]

Like this comment
Posted by Bob
a resident of Menlo Park: Central Menlo Park
on Jun 15, 2011 at 2:31 pm

OK - let's try this again.
Don't be surprised by Serrato's decision. He's not all that interested in public schools as he sent at least one of his kids to a private high school in San Francisco.
Almanac - this is pertinent to the discussion as it goes to show state of mind.

Like this comment
Posted by Atherton Resident
a resident of Atherton: Lindenwood
on Jun 15, 2011 at 2:41 pm

Thanks to Peter for his efforts on this issue (MPCSD School Board).

Am I wrong or is that the topic of his post? Most of this thread seems to be about the Menlo Park City Council, which is not what I thought he was writing about.

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

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