DA taking a look at Menlo Brown Act allegations

But even a Brown Act violation would be a misdemeanor 'at most'

Whether Menlo Park City Council member Kelly Fergusson violated the state's Brown Act open-meeting law by campaigning for mayor is being checked out by the San Mateo County District Attorney's office, Deputy District Attorney Steve Wagstaffe confirmed Monday (Dec. 27).

But even if there was a violation, it would be just a misdemeanor, "at most," he said. And it might not even be something that could be prosecuted, Wagstaffe said, adding that some things under the law just need corrective action.

Fergusson was elected mayor for 2011 on Dec. 7 by a 3-2 vote. She resigned as mayor Dec. 10 following allegations that she may have violated the Brown Act, becoming one of the briefest mayors-elect in the Menlo Park's history.

Wagstaffe, who is due to become district attorney in January, said he will have two staff specialists on open-meeting laws review the situation. The review is in response to demands from Peter Carpenter, who has become a community watchdog on open-meeting issues, along with high-speed rail and excessive retirement benefits for public employees.

But Wagstaffe said the Brown Act does not preclude members of a public body talking with each other, or even one member campaigning with others.

A violation would occur when a majority of members of a body consult to "plan a course of action," he said. A nuance might be if one member conveys to a majority of members how others plan to act on an issue, as that might influence votes.

Wagstaffe said other than frequent e-mails from Carpenter the only information they have at present "is what we've read in the newspapers." There will be interviews involved, he said.

-- Palo Alto Online staff


Like this comment
Posted by Nelson
a resident of Midtown
on Dec 28, 2010 at 11:02 am

I guess the message to our council is "caution on doing deals with Menlo Park if Fergusson is voting on them"

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Dec 28, 2010 at 11:13 am

"Wagstaffe said other than frequent e-mails from Carpenter the only information they have at present "is what we've read in the newspapers."

Actually Wagstaffe has a public statement by Fergusson in which she admits that she violated the Brown Act and a staff report by the City Attorney that confirms the same.

The Council, in response to my "Cure and Correct Demand" made under Section 54960.1 b of the Brown Act, has quite properly declared the initial election (which was contaminated by Fergusson's admitted violation of the Brown Act) as null and void and held a new election. This satisfies my "cure and Correct Demand" but does nothing to punish Fergusson's violation of the Brown Act.

Section 54959 provides for penalties for an individual who violated the Brown Act and there is no provision for forgiving such individual violations simply because the legislative body has corrected the damage done by that violation. Nor does the Act allow the legislative body to in any way punish a member who violates the Act - that is the sole responsibility of the DA and the judicial system.If the DA turns his back on this proven and admitted violation then he is clearly signaling to all the other public officials in San Mateo County that they can ignore the Brown Act during his tenure as our District Attorney without fear of sanction or punishment .

If saying "I am sorry" when an elected official gets caught is considered as punishment then there would be no incentive for elected officials to comply with the Act - just do everything in secret and, if you get caught, say "Sorry".

Next time I am stopped for speeding should I just say "Sorry" and drive away?

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