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.