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Councilman wants state bar to chide attorney

Heyward Robinson says open-government advocate and attorney Terry Francke violated standards in a Brown Act opinion

Councilman Heyward Robinson of Menlo Park -- who narrowly lost a bid for reelection in the Nov. 2 election -- has filed a complaint with the State Bar of California against attorney and open-government advocate Terry Francke.

The complaint urges the bar to admonish Francke for expressing a legal opinion to the Daily Post that may have influenced the City Council election outcome.

Robinson, who narrowly missed reelection, filed the complaint on Nov. 5. The Post ran a front-page apology on Nov. 19 for two stories and an editorial that said three Menlo Park council members violated the state's Brown Act by exchanging e-mails discussing campaign issues. The Post also ran a guest column by Robinson.

The stories ran a few days before the Nov. 2 election. But Robinson discovered that Francke had never actually seen the e-mails before he declared to the Post that "a very serious Brown Act violation" had occurred.

Once Francke did read the e-mails -- the day before the election -- he retracted his statement and apologized, saying there was in fact no Brown Act issue.

Francke said the new correction was the second correction run by the Post and that he had personally apologized to Robinson. The correction stated only that Francke changed his opinion, not that he changed it after he read the exchange of e-mails -- the reason for his changed opinion.

As for the state bar complaint, "I've read the complaint and I sympathize with its sentiment, but I've checked the Rules of Professional Conduct and don't see any that address this situation," Francke said.

The complaint asks the bar to hold Francke accountable for his errors "and their serious and irreparable consequences" -- the possible political harm done to the two council members running for re-election.

"It most certainly did political damage to the incumbents, causing some to vote against them," Robinson wrote in a letter to the bar.

He said his review of precinct-level voting data showed a weaker-than-expected performance in the precinct encompassing the Willows neighborhood, where copies of the Post stories were distributed via the neighborhood's Yahoo online message board.

"To see that tells me something had an effect, but I don't think it was any one factor," Robinson said, explaining that fellow incumbent Rich Cline's third-place finish came as more of a surprise than his own loss.

Another factor was lack of public awareness about the council's accomplishments during the past four years, he said.

Both incumbents were mentioned in the Post stories and share a similar history of service on the council, yet Cline will keep his seat, indicating there may be an additional factor at work.

The passage of the pension reform initiative by 71 percent indicates most Menlo Park residents supported Measure L. While Cline stayed publicly neutral on the initiative, Robinson opposed it.

Data released on Nov. 17 by San Mateo County suggests the articles may not have had a huge impact. Robinson trailed the other incumbent by 167 votes among those cast on election day, a slightly smaller gap than in the vote-by-mail category. The same trend held for Cline's distance behind second-place winner Kirsten Keith.

"Certainly it doesn't help to have blazing headlines that say 'e-mails expose incumbents,'" Robinson said. "Unfortunately journalism is largely self-policed. There's not a lot of recourse for someone on the other end of an incorrect story, especially if you're a public figure."

The Daily Post did not respond to requests for comment.

Francke has been active in pushing for open communication in government for 30 years. For 10 years he served as legal counsel for the California Newspaper Publisher's Association and for 14 years he served as legal counsel to the California First Amendment Coalition.

In 2004, he and his daughter, Emily, founded the California Aware nonprofit organization to advocate transparency in government and defend the state's historic Ralph M. Brown Act that mandates open meetings and adequate notification.

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Like this comment
Posted by Your-1st-Amendment-Use-It-Or-Lose-It
a resident of Another Palo Alto neighborhood
on Nov 23, 2010 at 2:05 pm

> The complaint urges the bar to admonish Francke for expressing a
> legal opinion to the Daily Post that may have influenced the City
> Council election outcome.

Newspaper editors issues opinions that are intended to affect the outcome of elections all the time, so why shouldn't attorneys do the same?

In this case, Franke's opinion was just an opinion--he was not paid to issue it, nor was he representing the Post.

Like this comment
Posted by wow
a resident of Barron Park
on Nov 23, 2010 at 2:19 pm

I imagine Post will be liable for willfully withholding emails from from Franke when asking him for his opinion

Like this comment
Posted by Amused
a resident of Old Palo Alto
on Nov 23, 2010 at 3:09 pm

This is the Daily POST, folks. Everyone knows it's a rag. When did their staff ever worry about FACTS? Consider the source.

We NEED First Amendment Rights preserved. We must simply believe half of what we read in newspapers.

Like this comment
Posted by Howard
a resident of Crescent Park
on Nov 24, 2010 at 7:29 am

The bigger story here is that the Brown Act is an absurdly overreaching, typically Californian extreme remedy for supposed horrors. It is a trap that ensares innocent "common sense" behavior and grist for nit pickers like the attorney involved here.

Like this comment
Posted by looking on
a resident of Menlo Park
on Nov 25, 2010 at 6:34 am

Ms. Brundage writes:

"Robinson, who narrowly missed reelection, filed the complaint on Nov. 5."

Robinson lost his seat by 371 votes, which in this election is hardly what one would call "narrowly missed".

None of the election reports, indicate that this Post article had any influence on the election, when one views early results vs. later returns. Robinson simply lost. Why he lost one might debate. Most likely because he was against Measure L, and because he deserted his supporters on development issues. He is history; he had said he won't run again.

I certainly agree with the criticism on the quality and type of reporting that the Post indulges. If he wants to blame anyone , he should blame Gail Slocum.

What is more and more evident is the Almanac's usual high quality of reporting has dropped to the level of the Post's. [Portion removed by Palo Alto Online staff.]

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Nov 27, 2010 at 7:18 am

Harold - please nit pick the following:

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards, and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

Like this comment
Posted by Just Wondering
a resident of Midtown
on Nov 27, 2010 at 7:32 pm

[Post removed by Palo Alto Online staff.]

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

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