Newly elected Menlo Park mayor may have violated Brown Act

Council members confirm one-on-one talks with Fergusson

Allegations of Brown Act violations arose after the Menlo Park City Council elected Kelly Fergusson as mayor on Tuesday (Dec. 7).

Fergusson held one-on-one discussions with at least three council members about becoming mayor. The state's open meeting law, known as the Brown Act, prohibits elected officials from conducting a series of one-on-one meetings with each other without public notice "if done to develop a collective concurrence as to action."

The Brown Act applies to current and newly elected council members, regardless of whether they have yet been sworn into office, according to First Amendment and open records expert Terry Francke.

Council members Rich Cline and Peter Ohtaki confirmed the discussions with Fergusson. Former member Heyward Robinson said he'd also met with her, but that conversation did not violate the Brown Act since he would no longer be on the council by the time the vote for mayor was taken.

"Kelly and I did discuss the upcoming mayoral vote, and I did expressly tell her I was planning to follow the protocol. I had no interaction with other electeds," Cline said.

Ohtaki said he was unaware that Fergusson had met with more than one council member. "It's not my intention to put her in an awkward position," he said. "She called and asked to meet."

Now chosen twice as mayor, Fergusson has served on the council since 2004.

In an interview, she refused to answer questions about the meetings, saying, after a long pause, "You know ... I'm going to refer you to (city attorney) Bill McClure."

She said she hadn't discussed the meetings with the city attorney, and that it was a great honor to have been selected mayor. "I'm really looking forward to working with the whole council for the betterment of Menlo Park."

The tete-a-tete with Ohtaki failed to earn his support. He nominated Councilman Andy Cohen for mayor instead, based on Cohen's support for Measure L, the pension reform initiative, and overall fiscal responsibility.

But despite statements to the contrary -- "I didn't campaign for this position," Cohen told the audience on Tuesday night before the vote -- he had asked the council and incoming members Kirsten Keith and Peter Ohtaki for the job in a memo mailed last month that outlined his qualifications to be mayor.

Cohen has yet to respond to the Almanac's request for comment, as has City Attorney Bill McClure.

The Almanac will continue updating this story as more information becomes available.

Related stories:

Kelly Fergusson elected Menlo Park mayor by 3-2 council vote

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Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 9, 2010 at 10:22 am

William McClure

City Attorney

City of Menlo Park

Via email

Subject: Cure and Correct regarding the 7 December 2010 election of Mayor

Dear Mr. McClure,

Pursuant to the Brown Act this is a Cure and Correct demand that the Menlo Park City Council’s election of Mayor and Vice Mayor be declared null and void because of the violation of the Brown Act’s prohibition of serial meetings.

There is reasonable cause to believe that at least one council member and or his/her intermediaries communicated with two or more of the other council members or council members-elect in private prior to this meeting regarding the agenda topic of election of Mayor and Vice Mayor.

Since such private communications are prohibited by the Brown Act, I hereby request that you, as the City Attorney, declare the Council’s actions on this item at their 7 December 2010 to be null and void and that you then direct that this item be placed on a future open meeting agenda. I further request that you direct the council members that they are prohibited by law from discussing this matter amongst themselves or via intermediaries except in open public session.


Peter Carpenter

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 9, 2010 at 10:33 am


Menlo mayor election will be voided
Council to re-vote on mayor, vice mayor

by Sandy Brundage
Almanac Staff

Menlo Park council member Kelly Fergusson said in an e-mail today that the election of mayor and vice mayor two days ago will be voided and the council will hold a special meeting to re-vote on both positions as a result of potential Brown Act violations on her part.

She made the statements in an e-mail sent to the Menlo Park City Council on Thursday, Dec. 9, after she consulted the city attorney.

She said she accepts full responsibility for potentially violating the Brown Act by holding one-on-one discussions with colleagues Rich Cline and Peter Ohtaki about her desire to become mayor, and will be "extremely careful" in the future.

As The Almanac reported on Wednesday, neither Mr. Cline nor Mr. Ohtaki said they knew she had spoken to more than one council member.

Ms. Fergusson, who has served on the council for six years, also said she will take a refresher course on the Brown Act.

Per council policy enacted in 1993, Ms. Fergusson and council member Andy Cohen are the two eligible candidates to become mayor. Both made a pitch for the position at the Dec. 7 meeting.

The Almanac will update this story as more information becomes available.

Like this comment
Posted by Ann Bilodeau
a resident of Community Center
on Dec 9, 2010 at 10:56 am

Can someone explain why preventing our elected officials from talking to each other is conducive to good decisions? I think it would be better if they were able to talk to each other about the pros and cons of an issue, and even about the political ramifications. These discussions could be much more in depth than the limited time they have available in public meetings.

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 9, 2010 at 11:42 am

Ann - our elected officials can have all the discussions that they want - they just have to have those discussions in public pursuant to a properly agendized meeting.

Her is the Preamble to the Brown Act:
54950. 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 Steve
a resident of Menlo Park
on Dec 9, 2010 at 11:59 am

Ann -
I agree with you that this is a ridiculous application of the Brown Act. It defies common sense that elected officials can only communicate with each other at public meetings. I know I couldn't get much done if I had to announce 2 days ahead of time that I was going to meet with a colleague to discuss a pressing issue. You certainly don't see this at the national level, nor does it appear to apply to state legislators.
The original intent of the Brown Act was to assure the right of the public to attend and participate in meetings of local legislative bodies. This extrapolation of public meeting to include one-on-one conversations and even emails is ham-stringing the ability of our elected officials to work together.
The logical extrapolation of this thinking is to assign a member of the public to each Council person to review each email and every phone call and to follow them into the bathroom so they don't slip notes under the stall.

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 9, 2010 at 12:55 pm

Here is what the law states - and without this prohibition anything and everything could be done in secret:

"Second, the Act
specifically prohibits any use of direct communication, personal intermediaries or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken. (§ 54952.2(b).) Most often this type of meeting is conducted through a series of communications by individual members or less-than-a-quorum groups, ultimately involving a majority of the body’s members. These meetings are called serial meetings."

I served as an elected official for 8 years and the above prohibition never hampered my ability to serve the citizens who elected me.

Like this comment
Posted by George Browning
a resident of Charleston Gardens
on Dec 9, 2010 at 1:21 pm

Very good, Peter. The Brown Act was meant to prevent secret, back room deals which were prevalent before its enactment. Some, not many, officials are more interested in advancing their own fortunes than honorably serving the public who elected them.

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 9, 2010 at 1:27 pm

I have sent the following email to the San Mateo DA's office:

Dear Mr. Serrato,
Ms. Ferguson has acknowledged her violation of the Brown Act and I believe that this is far from the first time that she has violated the Brown Act.

I therefore request that the District Attorney, under 54959. Violation of Act; Criminal penalty, bring criminal charges against her to both appropriately punish her for this violation and to establish judicial oversight over her further actions as an elected official.

Like this comment
Posted by Reality Check, Please!
a resident of Midtown
on Dec 9, 2010 at 9:13 pm

Nobody cares about this over here in the real world, Peter.
We'd rather have our potholes filled and budget deficits addressed than spend time worrying about three people talking with one another.

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 9, 2010 at 9:27 pm

Reality Check - when important public issues are decided behind closed doors and without public input you Will care.

Secrecy is a slippery slope and the only way to stop secret public policy making is my insisting that the public's business be done in public.

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

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