News - February 9, 2011

Lingering questions over Brown Act violation

by Sandy Brundage

Although the district attorney's office concluded Menlo Park Councilwoman Kelly Fergusson did not commit a misdemeanor by violating the Brown Act, her refusal to be interviewed by the investigator left lingering questions instead of wiping the slate clean.

Deputy District Attorney Albert Serrato said the investigator questioned council members Rich Cline, Peter Ohtaki, and Kirsten Keith, but that Ms. Fergusson declined a request for an interview. Reportedly not wanting to pay an attorney to oversee the interview, she instead provided copies of e-mails and public statements she made regarding the violation.

The Almanac broke the story of the violation in December. The councilwoman solicited support to be chosen as mayor in one-on-one conversations with fellow council members Rich Cline and Peter Ohtaki. Both said they were unaware that she had spoken to a majority of the council.

She may also have asked a third party to approach Ms. Keith as an intermediary, but Mr. Serrato said the investigation didn't uncover that person's identity.

After the city attorney confirmed the violation, Ms. Fergusson stepped down as mayor on Dec. 10 and the council held another vote, this time choosing Mr. Cline.

The DA then opened an investigation at the request of local Brown Act watchdog Peter Carpenter. Although the investigator confirmed the serial meeting, Mr. Serrato said no collective decision or commitment was reached, so the criminal provision of the Brown Act wasn't violated.

"Mr. Ohtaki did not vote for Ms. Fergusson, but more relevant here, he did not agree or commit to voting for her in his discussions with her," the attorney told The Almanac.

The district attorney's office considers the investigation closed after announcing its findings on Feb. 1. Does Mr. Carpenter? He told several newspapers, including The Almanac, "If I, as a public official, felt compelled to exercise my Fifth Amendment rights against self incrimination when asked about my behavior in office then I would also feel compelled to resign my public office."

Ms. Fergusson issued a statement thanking the district attorney's office for its thorough investigation. She again described the Brown Act violation as an "inadvertent mistake," although as former Councilman John Boyle pointed out in December, the council had received specific training on the issue of serial meetings during the previous year.


Posted by Hank Lawrence, a resident of Menlo Park: Sharon Heights
on Feb 8, 2011 at 1:37 pm

The horse has left the barn. Debating this issue further serves no useful purpose [unless Gail put her up to it]

Posted by None, a resident of Menlo Park: Linfield Oaks
on Feb 8, 2011 at 2:21 pm

How can Ms.Fergusson describe the the district attorney's investigation as "thorough" when she declined to be interviewed?

Posted by POGO, a resident of Woodside: other
on Feb 8, 2011 at 2:29 pm

You really can't blame Ms. Fergusson for refusing to talk to the DA.

But voters also have the right to refuse to re-elect someone so wanting in ethics, intellect or memory (take your pick, Ms. Fergusson).

Let's just hope they remember this come election time.

Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Feb 8, 2011 at 2:44 pm

Ms. Fergusson has the right to invoke the Fifth Amendment; she does not have the right to hold public office - that is a privilege granted to her by the voters. If an elected official feels compelled to invoke the Fifth Amendment about their public service behavior then they also should feel compelled to resign a position of public trust.

Posted by city budget, a resident of Menlo Park: Linfield Oaks
on Feb 8, 2011 at 4:08 pm

So someone remind me how much it costs to host a recall election? Kelly's behavior certainly warrants a small group to consider whether it's worth the effort.....

She is clearly not fit to serve the public, she holds us in low regard against her own good....she's gotta go.

Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Feb 8, 2011 at 4:44 pm

city budget asks:"So someone remind me how much it costs to host a recall election?"

Depending on how many other items are on the agenda the actual election could cost between $10-50,000 plus the expense of actually gathering enough signatures to put it on the ballot. In my opinion it is not worth it since all it would take is the stroke of her pen to resign.

Posted by POGO, a resident of Woodside: other
on Feb 8, 2011 at 5:03 pm

If the recall is timed to coincide with a regularly scheduled election, it will cost less money.

But in this day of short finances, I'd bet the San Mateo County Elections Department would sock it to Menlo Park for a big part of the total cost.

Probably not worth it.

Posted by Menlo Voter, a resident of Menlo Park: other
on Feb 8, 2011 at 6:21 pm

I'm not holding my breath waiting for that "stroke of a pen."

Posted by old timer, a resident of Menlo Park: Central Menlo Park
on Feb 8, 2011 at 9:32 pm

My view is that the DA hardly did what I would call an investigation.

I am wondering if under a "freedom of Info" request, one can extract exactly what was done. Certainly not finding who was the "third party" indicates to me he did almost nothing.

He didn't criticize McClure who certainly was trying to shove this under the table as quickly as possible.

Is it possible the DA was covering for someone.

As an example, Councilman Cohen was not interviewed; yet he was also contacted by Keith. Just what kind of investigation was this!!?

Carpenter is exactly right about holding public office is a privilege and not a right.

One little bit of punishment was dished out today at the press conference for FaceBook, when Fergusson had to watch Mayor Cline get all the "national attention", something that she strives for and was the motive for the violation in the first place.

Life goes on in Menlo Park.

Posted by jane, a resident of Atherton: West Atherton
on Feb 9, 2011 at 5:11 pm

I think her punishment will be less than winning vote totals in future election attempts.

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