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Menlo mayor election will be voided

Original post made on Dec 9, 2010

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.


Read the full story here Web Link posted Thursday, December 9, 2010, 10:23 AM

Comments (98)

Posted by Interested, a resident of another community
on Dec 9, 2010 at 11:19 am

It defies believe that Ms. Fergusson requires a "refresher" course on the Brown Act. I would love to know how many Brown Act courses has Ms. Fergusson attended during the six years she has been on the council.?

And she has not got its basic tenant yet........


Posted by just a thought, a resident of another community
on Dec 9, 2010 at 11:23 am

What a refreshingly responsive decision compare to other communities.

However, in my opinion, it is the ONLY appropriate choice for Ms. Ferguson to recuse herself as a candidate in this election.

Any other option is neither responsible nor acceptable and citizens should protest with vehemence if so inclined.

JAT


Posted by TBrown, a resident of Menlo Park: Downtown
on Dec 9, 2010 at 11:42 am

Agreed. Kelly should recuse herself, or take her name out of consideration.

She brought this on herself by her aggressive lobbying to all who would listen.

Shame on her.


Posted by Menlo Park Fan, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 11:45 am

Whatever her motives, Ms. Fergusson did the right thing here. I agree that recusal is appropriate. Given the impermissible conversations that took place, and the agreements reached, it is unrealistic to "unring the bell" here. If Ms. Fergusson does not recuse herself, I fear public trust is damaged and cynicism increased. A mere "redo" will likely appear to be nothing more than steering clear of what sounds like a legal problem re the Brown Act, and an effort to avoid further controversy. While Rich Cline and Peter Ohtaki were unaware of any violation, they do have a role to play here in terms of regaining the public's trust.


Posted by Pots and Kettles, a resident of Menlo Park: other
on Dec 9, 2010 at 11:47 am

I am sure there was all sorts of talking going on in all directions regarding the Mayoral position this time, both directly and through intermediaries, as there has in past years as well.

It is so hypocritcal for people like Lee DuBoc -- who appears to have served as an intermediary among several Councilmembers -- can claim to have a "heavy heart" in her recent email diatribe against Kelly, when those in the DuBoc/Ohtaki camp were also talking with both Cline and Keith as well as Ohtaki about who was saying was going to vote for whom. Seems like Lee's heart is more bitter and vindictive than heavy.

Does Lee or Peter Ohtaki really believe that Andy Cohen would make a better Mayor than any of his colleagues when he has trouble staying up for the whole meeting let alone chair it?

When there is a revote, it may well go the same way it did before to elect Kelly per the policy. This is simply not the right year to put Andy in charge when he outright opposes development, yet the El Camino SPecific Plan will be one of the most important things coming before the Council this year. This will require an unbiased and evenhanded Mayor to chair meetings adeptly, with tact, emotional stability and respect for all. Andy can't deliver that. Kelly did that when she was Mayor and can do it again. The only other solution would be to ask Rich Cline to continue for another year if he were willing (?)... But that not only violates the policy, it is asking a lot of a guy who has three kids under 6 years old, one of which is under 1 year old. YOU need a year of Council experience before being Mayor, so Keith and Ohtaki are not appropriate choices this year.

This whole episode is not getting the new Council off to a good start at all, and it is NOT all Kelly's fault. Make no mistake, the pot was being stirred big time, for political purposes, by Ohtaki along with with folks like Lee DuBoc, Henry Riggs, and others whispering heavily in his ear.

We have real substantive issues to deal with, people!!! We need a Council that can pull together and get off this downward spiral of disfunctionality. That means everyone, not just Kelly.

Menlo Park is rapidly becoming more toxic and a joke compared with Palo Alto. Be good to have people focus on positive ways to change that. We need that from people on ALL sides without this "Holier than thou" crap Lee is putting out on Town Square and in her citywide span emails. At least Kelly admitted her mistake despite having egg on her face. I don't see others doing the same, but rather trying to pile on. Shameful and unhelpful for team building.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 11:49 am

Ferguson's statement states:
"If there was a violation, it was not intentional."

This is an elected official who has taken Brown Act courses numerous times and who has previously been challenged for her flagrant violations of the Brown Act - how can she possibly suggest that what she did was "unintentional"?

Given her lack of respect for the law I think that she should resign from the council.


Posted by frugal, a resident of Menlo Park: Allied Arts/Stanford Park
on Dec 9, 2010 at 11:55 am

Yes, it's time for Kelly to resign. Can the council vote to expel her? If so that's what should occur.


Posted by Clear as mud, a resident of Menlo Park: Felton Gables
on Dec 9, 2010 at 12:03 pm

For the sake of being honest and thorough, Kelly also needs to acknowledge that she talked to Kirsten Keith, agreeing to vote for her as vice if Kirsten supported her as mayor.


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 12:04 pm

Menlo Park Fan: Rich Cline and Peter Ohtaki were innocent bystanders in Fergusson's grand scheme of doing whatever it took to be mayor. The fact that she admits that she needs a "refresher" course on the Brown Act proves that she is not fit to hold public office. The Brown Act was enacted to ensure good governance and transparency by elected officials. Fergusson's actions show she is unethical, lacks integrity, and is self-servingly ambitious. This is not the first time that Brown Act violation allegations have been made against her, but it is the time she got caught-- thankfully! The fact that there was an appearance of impropriety that she violated the Brown Act during her support of Robinson's campaign (by using the city's public's email system for a political campaign) shows that she believes she is above the law.

You are missing the point by focusing on two innocent bystanders. Doing the "right thing here" is the LEAST Fergusson can do. If she had integrity and high standards for herself, she would not have put herself or the City of Menlo Park (the place she very much wants to "represent") in this situation. It's very clear that we're dealing with a very selfish person who cares only about herself.

I hope she never attains higher office! She gives politics a bad name and, unfortunately, continues to make it a spectator sport, instead of doing the business of the people. Shame on her!



















Posted by Roy Thiele-Sardiña, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 12:06 pm

Roy Thiele-Sardiña is a registered user.

"Menlo Park Deserves Better"

Kelly Fergusson violated the Brown Act. There is NO inadvertant violation. She spoke to current council members Robinson and Cline (violation number one even if Heyward doesn't think so). If you think only the "newly elected" council should count then her conversations with Cline, Ohtaki and Keith also violates the act.

She needs to recuse herself, and needs to resign or be re-called.

Roy Thiele-Sardina


Posted by Council Watcher, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 12:06 pm

Kelly Fergusson should resign from council and apply for a job as a paralegal for PG&E. I know someone there would would be most enthusiastic about hiring her.


Posted by Menlo Park Fan, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 12:14 pm

I did not suggest (and certainly did not mean to suggest) that Rich Cline and Peter Ohtaki did anything wrong here. On the contrary, I stated that they "were unaware of any violation." When I say "they do have a role to play here in terms of regaining the public's trust," I simply mean that they can help regain trust in the Council and how it works if they would not support Ms Fergusson this time around. If they do support her, folks will wonder whether anybody took the Brown Act violation seriously. That is all I meant to say.

While some might think that Ms. Fergusson is the right choice this year, that preference may have to yield to the need to restore a measure of faith in the City Council.


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 12:14 pm

Peter Carpenter: I wholeheartedly agree with you!

My question is what are the remedies for this? Since it's a criminal matter, shouldn't there be criminal sanctions against Fergusson for intentionally violating the Brown Act? Criminal intent is exactly what we're dealing with in this situation re Fergusson's desire and campaign to be Mayor.

At a minimum, under the Brown Act, the declared actions should be null and void, which is what is happening at the special meeting. Another remedy under the Brown Act is to "award costs and attorneys fees." Maybe, she should pay back the City for the time McClure spent on researching this violation that she knowingly committed.

Menlo Park residents: you don't know if this is the first time Fergusson violated the Brown Act, but it's the time she caught. Do you really want to lower your own standards and have "corrupt politician" representing you? If there's a way to recall her, you should take advantage of if immediately!


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 12:16 pm

Menlo Park Fan: Ohtaki did not support Fergusson for Mayor. He didn't nominate or vote for her. Cline nominated and voted for Fergusson, along with Keith, and Fergusson herself, of course.


Posted by just a thought, a resident of another community
on Dec 9, 2010 at 12:17 pm

Upon reading these posts, I realize that the call for resignation is completely sound, correct and the only course of action for any person in this position who is genuinely concerned about the credibility of their office and colleagues.

Peter, you are right again. It is so wonderful to have such intelligent people devoted to ethical conduct and principles. Why aren't you people our leaders?


Posted by Peter carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 12:19 pm

54959. Violation of Act; Criminal penalty
Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the
public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.
********
In my opinion Ferguson's behavior meets these criteria.


Posted by Interested, a resident of another community
on Dec 9, 2010 at 12:25 pm

Pots and Kettles......

I cannot discuss Ms. Fergussons motivations in the actions she took. I do not know her well enough to make any such observations, and besides it only serves to obfuscate the issue present here.

The fact is Ms. Fergusson broke the law, a law she must have been very well aware of. Lets give her the benefit of the doubt and assume she was unaware. That would make her incompetent. A Public Official who has served for six years that is unaware of the basic tenants of the Brown Act should be serving as a Public Official.

If she is aware of the requirements of the Brown Act and chose to ignore it, She should not be serving.

I am afraid it is time for Ms. Fergusson to do the honorable thing and resign immediately.


Posted by Mayor Bosco, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 12:25 pm

Peter Ohtaki can be appointed. He has the maturity and demeanor.

The rotation policy is not law; it is a guideline. The council can appoint whomever they wish.

Actually, Andy may not be too bad. If you're running a meeting you tend to stay awake. he has the experience. His opinions are not a reason to not have him as mayor.


Posted by Interested, a resident of another community
on Dec 9, 2010 at 12:27 pm

Corrected to state

A Public Official who has served for six years that is unaware of the basic tenants of the Brown Act should NOT be serving as a Public Official.


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 12:28 pm

Pots & Kettles: Unless you have absolute proof of your ridiculous accusations about Ohtaki, you should probably keep your thoughts to yourself. You are missing the point. Fergusson is a corrupt politician, and SHE ALONE has made sure that this Council year get off to a bad start. The conclusion that she violated the Brown Act are based on findings of fact, which are:

1) She spoke to three elected Council members about being Mayor.
2) She did it in an illegal "closed meeting," aka behind closed doors, according to the Brown Act.

Your speculations are just that-- your opinion, without any basis in fact. I guess, you would rather support a known corrupt politician who came clean.


Posted by just a thought, a resident of another community
on Dec 9, 2010 at 12:29 pm

[Post removed. Please stay on topic.]


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 12:43 pm

Dear Mr. McClure,

I understand that the challenged acts by the City Council will be declared null and void. This is a very appropriate response to my Cure and Correct letter dated Dec. 8, 2010.

I also understand that the council officer election item will be re-agendized. I do not consider it appropriate to re-agendize this matter, which was first agendized at a regularly scheduled open meeting, as part of a special meeting. Special meeting notice requirements are considerably shorter than those of regularly scheduled meetings and are frequently held at times that preclude full public participation. Such a special meeting would not satisfy the intent of my Cure and Correct letter and I would take further action should such a special meeting be utilized to deal with the council officer election issue.


Peter Carpenter


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 12:55 pm

As I wrote on the Palo Alto town square:

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.

Ridiculous!


Posted by Interested, a resident of another community
on Dec 9, 2010 at 1:00 pm

Sorry Steve I disagree with you. The original intent of the Brown Act was to ensure that all public business was conducted within the public eye, and not behind closed doors and in private conversations.


Posted by Interested, a resident of another community
on Dec 9, 2010 at 1:05 pm

Steve. Is there any reason why Ms. Fergusson could not have made her case to become Mayor at the meeting at which the decision was made?. This would have enabled the public to hear her arguments openly, are there issues on which she either agrees or disagrees with other Council members on which she is either willing or unwilling to bend?

Don't you think we as the public have the right to hear that discussion?. I do.


Posted by Roy Thiele-Sardiña, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 1:09 pm

Roy Thiele-Sardiña is a registered user.

Ms. Fergusson will now lack the credibilty of her fellow council members and the public. She is tainted.

While she admits to violating the Brown this time, how do we know she didn't do it before?

She only admitted it because she got caught with her hand in the cookie jar!

As I've said before, she needs to go because "Menlo Park Deserves Better"

Roy


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 1:15 pm

Steve: you are incorrect about the intent of the Brown Act. The basics of the Brown Act are that meetings of public bodies MUST be "open and public," actions may not be secret, and action taken in violation of open meetings laws may be voided. (sections 54953(a), 54953(c), 54960.1(d)).

Mayor Fergusson clearly violated the Brown Act as the findings have verified.


Posted by 40+ year resident, a resident of Menlo Park: The Willows
on Dec 9, 2010 at 1:16 pm

Many people today are cynical about government, large and small. This sorry episode isn't helping. Menlo Park council should try to set a better example...Ms Fergusson should show some integrity and resign, not just recuse herself.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 1:19 pm

Interested -
To respond to your first point, I got my info about the Brown Act from Wikipedia, which says:
"The Brown Act, officially known as the Ralph M. Brown Act, was an act of the California State Legislature, authored by Assemblymember Ralph M. Brown and passed in 1953, that guaranteed the public's right to attend and participate in meetings of local legislative bodies.[1]

The Brown Act, originally a 686 word statute that has grown substantially over the years, was enacted in response to mounting public concerns over informal, undisclosed meetings held by local elected officials. City councils, county boards, and other local government bodies were avoiding public scrutiny by holding secret "workshops" and "study sessions." The Brown Act solely applies to California city and county government agencies, boards, and councils.

So, I guess my point is that the Act has been expanded to define "workshops" and "study sessions" to mean any communication between members of the Council, which is what I think is ridiculous. I'm not saying that's not the law, just that it's an unhelpful interpretation that makes communication among council members difficult.

To answer your second point, I agree with you that Kelly could well have made her case for being Mayor at the meeting. I wasn't there so I don't know how the process unfolded. However, it doesn't bother me at all to think that there may have been private discussion between council members before the meeting as well. Do you expect me to believe that such private conversations didn't occur prior to the elections of Rich Cline, Heyward Robinson, Andy Cohen, Nicholas Jellins, Lee duBoc, Mary Jo Borak, Paul Collachi, and on back to Charles Burgess? Highly unlikely.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 1:24 pm

Steve states:". Do you expect me to believe that such private conversations didn't occur prior to the elections of Rich Cline, Heyward Robinson, Andy Cohen, Nicholas Jellins, Lee duBoc, Mary Jo Borak, Paul Collachi, and on back to Charles Burgess? Highly unlikely."

You are right - and all of such conversations, if they involved City business and more than two council members, violated the Brown Act.

Menlo Park has a culture of ignoring this law. Sad but true.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 1:26 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.


Sincerely,

Peter F. Carpenter


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 1:34 pm

Just an observation that Kelly performed admirably during her first term as mayor and, given her 3 years of experience since then, could be even more effective if she doesn't withdraw her name and is chosen again.
I for one hopes she hangs in there and is selected mayor by her colleagues on the council. If that happens, I have to think her credibility isn't as badly damaged as Roy apparently wants it to be.


Posted by Interested, a resident of another community
on Dec 9, 2010 at 1:34 pm

Steve. Sorry guy but I really disagree you with. I have been subject to the Brown Act. I have attended conferences with a majority of my Elected Officials. We have even been at Conferences where we were trained in the Brown Act. But I can assure you that at none of those "workshops" or "Study Sessions" did we discuss the issues of the Agency.

I have also conducted study sessions that related to my agencies budgets, policy, etc. Those are specifically addressed in the Brown Act. They MUST be noticed as Special Meeting, giving the public the right to attend and comment if they feel the need to do so.

Your reference to Ms. Fergusson as Kelley would seem to imply that you are aquainted. I am not. And I assure you I have no axe to grind when it comes to Ms. Fergusson.

I might well believe the law that requires me to wear my seat belt to drive two blocks to the supermarket is ridiculous.

I might well believe the law that requires I maintain a posted speed limit when I am in a hurry is ridiculous.

My feelings about the law are immaterial. IT IS THE LAW. And Ms. Fergusson can offer no excuse for not abiding by the law.

Sorry guy. I think you are dead wrong on this one.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 1:45 pm

Peter -
Please stop wasting the DA's time. As you know, there are no examples of successful criminal convictions of the Brown Act since it was enacted back in the 50's. This email of yours appears to be just more grandstanding on your part.
To quote from Terry Franke, one of recognized authorities on the Brown Act:
"The Brown Act creates no civil liability in damages against either the agency, its employees or its governing body members, for violations of its rules. Civil actions are confined to establishing that a violation has occurred, preventing one from occurring, or overturning an action taken in violation of some of its central provisions. As for criminal prosecution, there have been about five or six initiated in the Brown Act's 56 year history. Only one went to trial, and it resulted in a hung jury. A conviction imposes on the prosecution a proof burden nearly unique in the law: that the member attended a meeting at which a violation occurred, and did so knowing that the violation was occurring, and intending that the public be deprived of information it is entitled to by law. Realistically, criminal jeopardy under the Brown Act is a myth." Web Link


Posted by Virginia Chang Kiraly, a resident of Menlo Park: University Heights
on Dec 9, 2010 at 1:46 pm

To: Mr. William McClure
City Attorney
City of Menlo Park

From: Virginia Chang Kiraly

Date: December 9, 2010

Re: Special meeting



Via email



Dear Mr. McClure:

I understand that the action taken to elect the Mayor and Vice Mayor at last week's City Council will be null and void because of a violation of the Brown Act. This remedy is very appropriate under the circumstances.

However, I feel that I must address the issue of re-agendizing the election of Mayor and Vice Mayor. This election should take place at the regularly scheduled Council meeting next Tuesday, December 14. The public will, no doubt, have a keen interest in the outcome of the election of Mayor and Vice Mayor, especially since the Brown Act was knowingly violated by the current Mayor in her bid to win this seat. As a former member and former Foreperson of the San Mateo County Civil Grand Jury, I believe transparency in this situation will be of the utmost importance. Calling a special meeting and re-agendizing this important election to that meeting cheats the public to voice their concerns about the process to choose the City's Chief Executive Officer/Mayor. Given the seriousness of this situation and the intentional violation of the Brown Act, the minimum standard of what is "legally required" for notice may not be enough. Therefore, having the election of Mayor and Vice Mayor held at the regularly scheduled meeting will give residents appropriate notice and provide the most transparency for the selection of the Chief Executive Office/Mayor of the City of Menlo Park.

Sincerely,



Virginia Chang Kiraly


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 1:52 pm

A Tempest in a Teapot
This whole discussion nicely fits the definition: "a small event that has been exaggerated out of proportion"


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 1:54 pm

[Post removed. Keep your comments on topic and avoid personal attacks.]


Posted by Menlo Park Fan, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 2:09 pm

Outside Looking In. Point noted and thanks. Since the article stated that Ms. Fergusson spoke to Mr. Ohtaki, I incorrectly surmised that he voted for her as well. My broader point is that Mr. Cline, in particular, and the Council generally should help turn the page on this chapter by voting for somebody other than Ms. Fergusson. Indeed, rather than putting her colleagues in the uncomfortable position of having to change their vote for her publicly, Ms. Fergusson should simply recuse herself. Violations of the Brown Act, whether it has civil or criminal penalties associated with it or not, should not be lightly condoned.


Posted by spare us, a resident of Menlo Park: Allied Arts/Stanford Park
on Dec 9, 2010 at 2:18 pm


Are you kidding, "Steve"?

It was during Kelly's term that the council handed $6.4 million in RETROACTIVE pension benifits to the employees. That's why we have Measure L today. Also, who in the world wants to see more of her council ceremonies, invitations to political cronies from adjacent cities, self commendations and coronations, etc. On top of that, if she were to hold the gavel, please add another hour or more of staff time to the already interminable council meetings to accommodate her blather and bloviating... NO THANKS!


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 2:21 pm

Steve states:"Peter - Please stop wasting the DA's time."

Steve, how sad that you feel that our elected officials should not be held accountable. I am not wasting the DA's time, but the DA is violating our trust if he chooses not to enforce the law. And it is clear from this case that Ferguson and others simply have no intention of following the law as long as they can, when they get caught, simply say "I am sorry".


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 2:23 pm

Outside -
Corrupt is a pretty serious charge for which I have yet to see any evidence.
I know Kelly personally and I do not believe that word describes her at all. She is an intelligent, caring individual who serves on the Council because she honestly thinks she can make Menlo Park a better place to live. Witness the summer downtown block parties that she initiated, the El Camino/Santa Cruz planning process, the Green Ribbon Citizen's Committee, etc.
Corruption implies dishonesty, immorality, or a lack of integrity. None of these describe the Kelly that I know or that I've seen in action at the meetings I've attended.


Posted by concerned, a resident of Menlo Park: Downtown
on Dec 9, 2010 at 2:29 pm

They should all resign ! This is insane. Yes Virginia, their is a council seat with your name on it.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 2:31 pm

Peter -
You're wasting the DA's time because charges of criminal violation of the Brown Act never go anywhere. There never has been a criminal conviction, even for cases far more serious than this one, which stretches the meaning of "secret meeting" beyond common sense.


Posted by WhoRUpeople, a resident of another community
on Dec 9, 2010 at 2:34 pm

For some reason my last two posts have been deleted. If I violated policy, I'm sorry (hey Kelly thinks it can work for her). Here it goes again.

First, a suggestion for council, elect Cline mayor for a second term
(continuity) and either of the two newcomers vice mayor so they can get a jump start on getting ready for 2012.

Second, thanks and my compliments to Peter Carpenter for being there to force this issue to this point. I know he isn't a resident of MP, nor am I, but we're all fortunate that he is as civic minded as he is. I know he is a candidate for reappointment to the MAFPD Board today,
again, thanks Peter for being willing to serve; I sincerely hope you get the appointment.


Posted by clear as mud, a resident of Menlo Park: Felton Gables
on Dec 9, 2010 at 2:34 pm

Steve, I know Kelly personally too. I'd say I know her pretty well, well enough to wonder if YOU are Kelly!

I don't think Kelly is evil. I do think she lacks integrity. If she had kept a low profile, she would have been elected mayor. She couldn't trust the process, and she thought the rules didn't apply to her.

If this were a first-time gaffe, no one would be upset. But this is the latest in a pattern of ignoring the public welfare in favor of promoting her own self-interest. That is most reprehensible.

We expect this kind of behavior at the state and national level, but it would be nice to believe that the council members in our small city can try to behave themselves in an honorable manner, to abide by the spirit as well as the letter of the law, and to consider their community's wellbeing above their own political ambitions.


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 2:48 pm

Steve: You wrote:
Corruption implies dishonesty, immorality, or a lack of integrity. None of these describe the Kelly that I know or that I've seen in action at the meetings I've attended.

Actions speak louder than words. Dishonest, immoral, AND lack of integrity all apply to Fergusson.

Clear As Mud also made me starting wondering whether you are Fergusson.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 3:02 pm

Clear as Mud -
I think my presence on this board over the years gives me a track record sufficient to dispel your suggestion that I'm Kelly. Of course she could be using my name & neighborhood . . .
The question that no one seems to want to discuss is: do we really think that similar conversations such as Kelly had with Rich & Peter about the choice between her & Andy weren't likely also held by every other potential Mayor going back to Charles Burgess? I think you'd be naive to think that other mayoral candidates didn't take such informal polls of their colleagues in almost every prior election. The difference is that they didn't have Peter Carpenter looking over their shoulders ready to pounce on any potential malfeasance.
And is the public welfare really at stake when such politicking occurs? I'd say it's business as usual.


Posted by Interested, a resident of another community
on Dec 9, 2010 at 3:06 pm

Steve. You seem to be saying if someone drives drunk and gets away with it, its Ok for someone else to drive drunk...That makes no sense.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 3:16 pm

Steve states:"I think you'd be naive to think that other mayoral candidates didn't take such informal polls of their colleagues in almost every prior election. The difference is that they didn't have Peter Carpenter looking over their shoulders ready to pounce on any potential malfeasance."

While I am glad to be a guardian of our citizens' right I don't feel that my presence or absence should change the fact that our elected officials took an OATH to uphold the laws of the State of California - not some of these laws but all of these laws. I would also welcome others in becoming citizen watchdogs.


Posted by The GOP is out in force, a resident of Menlo Park: other
on Dec 9, 2010 at 3:20 pm

This is political. I believe that Virginia Chiang Kiraly and Peter Carpenter are both Republicans (and neither lives in the City of Menlo Park) going to the DA and City Attorney and seeking public money spent to try to get rid of an effective and proven (and yes, a Democrat) Councilwoman they disagree with on many policy issues. (Don't forget, Carpenter was a top Ohtaki supporter and Fire Board buddy...)

Add to the mix Lee BuBoc's emails and Town quare posts, and then you have a Republican who even was a delagte to the GOP National convention that re-nominated George Bush to a second term after racking up the biggest deficits in US history and OKing torture.

Roy Sardinia comes to the chorus too - not sure his party registration, but I am guessing also a Republican. Their piling on with this misstep by Kelly is purely political. There is absolutely no basis for criminal action here as others have well covered.

Seems they are fine spending government money to seeking legal action that is unfounded to stir up unrest to try to get rid of the people they dislike/disagree with, as well as to spend our tax dollars to defend predictable lawsuit over flawed ballot measures they wrote when the COuncil has already imposed the 2@60 result.

I call that selective fiscal conservatism. And hypocracy. They were all talking among themselves too about who should be mayor. Wanna bet Ohtaki talked wtih Andy as well as Kelly? "Pots and Kettles" had it right.

We should not reward their brand of vindictive behavior. Kelly is an elected official who got more votes than any of the others on the Council She will not and should not be run out on a rail for doing something regarding the Mayoral vote that others this year and in opast years no doubt have done.

This is getting really ugly. And pathetic. God help us.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 3:22 pm

Interested -
I'm only trying to bring a bit of perspective and fairness to this discussion. If you agree that behind the scenes politicking has occurred in most past elections for mayor then why are we all of sudden so outraged when it happens now? If the public welfare survived the previous behind the scenes maneuvering with no apparent damage, why is it so at risk now?
More than ever I see this as a tempest in a teapot, stirred up by folks with nothing better to do.
Could there be a political motive at work here?


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 3:26 pm

Peter -
Would you address the central question of whether or not you agree that such "behind the scenes politicking" as you've accused Kelly of didn't likely also occur in most, if not all, previous mayoral selections?
If you agree that it did, why the outrage over the current episode?


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 3:28 pm

The GOP is out in force: you clearly miss the point in this situation. Being ethical and having integrity is not a partisan issue. Unfortunately, we are talking about a violation of the law, and the last time I checked, political parties do not matter. The fact is that Fergusson broke the law-- what part of this do you not understand?

Please stop deflecting the issue here. Sounds like you're a Democrat, and you give them a bad name. In one of my other posts, I mentioned that Fergusson should pay for the time McClure has spent on her Brown Act violation. The fact that the taxpayers are on the hook for this is ridiculous!

Unfortunately, given the political party make-up of the City and County, I doubt that a fellow Democrat corrupt politician (Fergusson) will be prosecuted. Talk about a waste of tax dollars-- not doing your job but getting compensated for it-- retirement benefits and all!


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 3:36 pm

Steve - everybody does it is not a very good defense for breaking the law.

Is there a political motive - you bet, GOOD GOVERNMENT.


Here is what the Attorney General's Office has to say:
The Ralph M. Brown Act (Gov. Code, § 549501 et seq., hereinafter "the Brown Act," or "the Act")governs meetings conducted by local legislative bodies, such as boards of supervisors, city councils
and school boards. The Act represents the Legislature's determination of how the balance should be struck between public access to meetings of multi-member public bodies on the one hand and the need
for confidential candor, debate, and information gathering on the other. As the rest of this pamphlet will indicate, the Legislature has established a presumption in favor of public access. As the courts
have stated, the purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies.
However, the Act also contains specific exceptions from the open meeting requirements where government has a demonstrated need for confidentiality. These exceptions have been construed
narrowly; thus if a specific statutory exception authorizing a closed session cannot be found, the matter must be conducted in public regardless of its sensitivity.
Where matters are not subject to a closed meeting exception, the Act has been interpreted to mean that ALL of the deliberative processes by legislative bodies, including discussion, debate and theacquisition
of information, be open and available for public scrutiny.


Posted by Interested, a resident of another community
on Dec 9, 2010 at 3:37 pm

Steve. I want to say I have no axe to grind against Ms. Fergusson. Although we have never met, I have had several conversations with her concerning constituent issues. In all cases I found her to be extremely helpful and with a true desire to resolve the issues her constituent had problems with.

But, Steve Ms. Fergusson cannot be above the law. And its a GOOD law. Should it be referred to the DA. Probably not.

If the purpose of the Brown Act is to ensure the public be aware of local government discourse then this forum may have already ensured that it occurs.

However there has to be a price paid for violating the law. Ms. Fergusson can elect to pay that price herself by removing herself for consideration as Mayor.

Its just my opinion.


Posted by The Republicans are out in force, a resident of Menlo Park: other
on Dec 9, 2010 at 3:39 pm

P.S. Forgot to mention that Ohtaki is the only registered Republican on the Council.

These GOP supporters of his, mentioned above, whoa are now screaming so loudly have been hoping -- and working behiond the scenes in recent weeks too -- seeking to get the Council to violate its rotational policy so that their boy Ohtaki could be Mayor as soon as possible. No surprises. But I bet committed serial Brown Act violations in the process of "their side" taking its best shot too.

Again -- someone should ask Ohtaki whether he spoke to Andy either before or after he spoke with Kelly. Or whether he was told by other supporters what the positions of anyone else on the Council were in the Mayoral race.

Same question for Rich. Same for Kirsten. Same for even Andy.

Come on people. That is how it is in Mayoral selection which is an honorary title and more procedural. It is thus very different than a substantive matter like say Gateway or pension levels.


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 3:41 pm

Outside looking in -
In the grand scheme of corrupt actions, a minor violation of the Brown Act is right there at the bottom, along with overtime parking.
If it's a sin, it's a venial sin and I prescribe 6 Hail Marys and the Lord's Prayer to Kelly in expiation of her crimes.
Lord knows the county DA isn't going to touch it.


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 9, 2010 at 3:45 pm

Steve: Fergusson's violation of the Brown Act is not the same as getting a parking ticket. Unfortunately, Fergusson does represent a certain segment of the Menlo Park population, if you think breaking the law is ok.


Posted by Bob, a resident of Menlo Park: Downtown
on Dec 9, 2010 at 4:13 pm

This whole situation is sad. Given the reputation that seems to surround past and present Councils, it's a no wonder people are reluctant to run for this office. Any good that has been/is done has been/is swallowed up by incidents such as this recent one. We tend to remember the bad ones more than the good ones. Given the dis-functional nature of legislative bodies these days, Sacramento and Washington, Menlo Park seems to be in good company.

I read the phrase "Menlo Park deserves better." I would add "I expect our council members to know the roles and responsibilities of their office and to function as a competent, mature, and smart adult."

But alas, maybe I expect too much..........


Posted by Steve, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 5:11 pm

"Come on people. That is how it is in Mayoral selection which is an honorary title and more procedural. It is thus very different than a substantive matter like say Gateway or pension levels."

How nice it is to see some common sense brought to the discussion!


Posted by millerton, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 5:39 pm

Kelly should not be rewarded by begin selected as mayor again tomorrow. She was desparate to be mayor for her ego and political gains.

It would refelect poorly on the council to merely repeat votes. Rich should not nominate Kelly again. Kelly,actuall, should take the high road and decline the position, and restore the bad light cast on her and the council.


Posted by Thomas, a resident of Menlo Park: Sharon Heights
on Dec 9, 2010 at 5:47 pm

Rep. Rangel's failure to pay income tax on a vacation home in the Dominican Republic has more legs than this story and he was censured not expelled. To suggest that this rises to level of a criminal act is ridiculous. Some of these same posters got their panties in a bunch when a few residents met to discuss field lights at Menlo Atherton and they were not in the loop on that. A reprimand, subsequent apology and re-vote would all that would be required in the days before all this political correctness and people with a computer and too much time on their hands.


Posted by Virginia, a resident of another community
on Dec 9, 2010 at 5:53 pm

There are rules about retaking a course on the Brown Act by elected officials. I think elected officials must retake the course every 24 months.


Posted by POGO, a resident of Woodside: other
on Dec 9, 2010 at 7:25 pm

Town Council Members know perfectly well that they are not permitted to assemble in a quorum and discuss official business. The reason for this is obvious, official business is supposed to be done in public, at least in California. And a message to Steve - no, elected officials are NOT permitted to discuss issues "off line" with what constitutes a quorum of their elected body. Citizens have a right to know how elected officials arrive at their decisions. This is government in the sunlight.

What Ms. Fergusson did was circumvent that requirement by holding a what is referred to as a "serial" meeting. She discussed a specific deal with one council member and then convened a second meeting with another council member to discuss the same issue. This is a clear subterfuge of the Brown Act and illegal. Period.

I have no doubt that Ms. Fergusson knew this requirement - it is one of the basic tenants of the Brown Act (as is doing that by email...) and this caution is covered in every elected official's (and appointees, also) orientation. Ms. Fergusson has attended several Brown Act orientations. She is apparently a slow learner.

No, Ms. Fergusson is not going to resign although given her unfortunate propensity for faux pas, she probably should. On the other hand, Mr. Cline and Ms. Keith have the ability to send a clear message to their community that Ms. Fergusson's lack of integrity makes her unfit for the position of mayor and they can withdraw their support.

No tolerance for a lack of integrity - would be a welcome message for elected officials to send to voters. One can hope.


Posted by Republican/Democrat, a resident of Menlo Park: Fair Oaks
on Dec 9, 2010 at 8:18 pm

Why "The Republicans/GOP Are Out in Force" are you bringing up party affiliations? Is THAT all you've got? That is ridiculous. There is no party recognition in council races. I AM a Republican and I care about how I am taxed, I voted for Measure L, and I am concerned that MP is operating with a budget that is running at a deficit. All of these things Kelly does NOT care about. She is not fiscally responsible as was evident of her not supporting Measure L, like 70%+ of us did, she voted in the largest pay raise possibly in the history of MP for the city employees and supports more taxes in the form of the UT. I also do not believe she deserves the credit for the downtown parties, it wasn't even her idea in the first place. And who cares about the Green Ribbon Committee, what have they actually DONE?? Answer: Nothing. However, even though I rant, I DO not think she should resign, she's a volunteer for X sake, let's put the issue in context and allow her to stay on, but not be mayor. There IS a compromise here "Republicans and Democrats" can get along, and compromise. This should be the compromise. I too do not think she was trying to be malicious, and the Brown Act would be violated every 5 minutes if we all paid attention to it. This REPUBLICAN says, let her stay, but don't let her be mayor. Enough said, can't we all get along?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 8:31 pm

This evening I had the privilege of taking the Oath of Office as I was sworn in as an appointed Director of the Menlo Park Fire Protection District to serve for the next 11 months until the November 2011 elections. In that Oath I swore to uphold the laws of the State of California without any mental reservation. As I spoke those words there was no doubt in my mind that I was swearing to uphold ALL the laws of the State of California not just some of the laws or just the laws which I liked or the laws which were convenient to follow.

Public officials have a solemn responsibility to those whom they serve and that responsibility cannot be fudged or tainted.


Posted by POGO, a resident of Woodside: other
on Dec 9, 2010 at 8:37 pm

Congratulations, Peter!


Posted by Menlo Voter, a resident of Menlo Park: other
on Dec 9, 2010 at 8:54 pm

Thanks for your further service to our community Peter.


Posted by Regina Rojo strikes again, a resident of Menlo Park: The Willows
on Dec 9, 2010 at 9:01 pm

Error in both deed and judgment?
Hardly excusable with 4 years on the PC, and 6 on council where city atty has admonished members to abide by Brown Act dictates, and to not discuss council business with more than 1 other council member.

KF not only needs to recuse herself from this travesty of electing a Mayor, but her gross transgressions of public trust, beginning with the Duncan MP Dance sweetheart deal on the decrepit Park Theatre funded by the city treasury, hustling votes for Robbie and Cline as late as a month ago on the city email list, and now, this latest "faux paus", hustling votes for her mayoralty, begs the issue of how she has any credibility as a representative of the public good.
Anyone who attends the emergency session Fri 3 pm should publicly ask for a recall of Fergie, post haste!
Unfit to serve? Beyond a reasonable doubt!


Posted by Give Me A Mega-Break, a resident of Menlo Park: other
on Dec 9, 2010 at 9:05 pm

[Post removed. Terms of use.]


Posted by my view, a resident of Menlo Park: Central Menlo Park
on Dec 9, 2010 at 9:05 pm

Fergusson let her personal ambitions run away with any good sense.

All this talk about her resigning and even facing criminal charges is out of bounds. Carpenter is completely out of line with this latter suggestion.

I don't encourage her to resign. Two years ago she was elected with a huge majority

However her letter is not satisfactory. It reads like she still wants to and expects to be mayor. That just cannot not happen. Surely Cline and Keith are not going to vote for her again.

Kelly should immediately write a letter, fully pleading guilty to this violation. She should state she will not accept a nomination for Mayor. She should recuse herself from any vote taken for mayor or for vice-mayor.

Tomorrow's meeting should be limited to only voiding her selection as Mayor. Also voided should be the election of Keith as vice-mayor.

The process of selecting a new mayor should be done at a regular meeting with regular public notice.

If Kelly is going to continue to campaign to be the next mayor, she should get no votes. If Cline and Keith continue to vote for her, than something much more drastic, like a re-call might well be appropriate.


Posted by Give Me A Mega-Break, a resident of Menlo Park: other
on Dec 9, 2010 at 9:16 pm

A spot-on comment from "Steve" on the PA Weekly Forum about this:

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.

Ridiculous!


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 9:24 pm

"It defies common sense that elected officials can only communicate with each other at public meetings."

Then read the law - it is very easy for public officials to communicate with each other in public and it is not in the public's interest for them to decide issues behind closed doors.

Steve is simply wrong and has never had the responsibility of elected service.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 9, 2010 at 9:36 pm

[Post removed. Please refrain from personal attacks.]


Posted by ED, a resident of Atherton: other
on Dec 9, 2010 at 9:37 pm

[Post removed. Please stick to the issue.]


Posted by lookin on, a resident of Menlo Park: Fair Oaks
on Dec 9, 2010 at 10:02 pm

Fergusson at Tuesday's meeting made these comments with her campaign speech.

--------------

"Kelly Fergusson text: 2:00 into video of Tuesday's meeting...

Just regarding the protocol, I think it is an important protocol,19 of 20 of our Cities I believe in San Mateo County follow Mayoral rotation, like we do, although every city has a different variation on it

But even on councils where there is strong ideological divisions or personality clashes, they still follow it out of a knowledge of a need con continuity and stability A lot of eyes are on us, are we going to be know throughout the county as fair and balanced or we going to be the council they say "What is the deal with you guys....."

------------

If Fergusson is re-appointed mayor, Menlo Park will be known as a city that promotes violation of state law.

Fergusson should not be re-appointed.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 10, 2010 at 7:07 am

Ironically the agenda for today's Menlo Park Council Meeting to "cure and Correct" the Brown Act violations which occurred prior to last Tuesday's meeting violates the Brown Act. Moving the discussions from the back room to a dark room in which the public is not allowed to speak is hardly progress.

Dear Mr. McClure,

The agenda for Friday Dec 10 2010 Special Meeting of the City Council violates the Brown Act.

The agenda states:

ROLL CALL – Cline, Cohen, Fergusson, Keith, Ohtaki
1. Council consider rescinding the elections of the Mayor and Mayor Pro Tempore/Vice-Mayor and declaring said elections null and void, taking new nominations for those positions and conducting new elections for the positions of Mayor and Mayor Pro Tempore/Vice-Mayor to correct and cure an apparent violation of Brown Act that preceded the Mayoral election (Attachment)

ADJOURNMENT

The Brown Act provides section 54954.3. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.


The 10 December agenda includes no provision for public comment and it also subsumes two different items, nullification and new elections, into one item. The public must have an opportunity to comment on both of these clearly separate and distinct item.


Thank you,


Peter Carpenter


Posted by Roy Thiele-Sardiña, a resident of Menlo Park: Central Menlo Park
on Dec 10, 2010 at 7:21 am

Roy Thiele-Sardiña is a registered user.

Peter, Bill McClure clarified that there will be public comment on each agenda item (as always). So the public will attend (no closed session) and have a chance to let the council know our thoughts.

We hope a large crowd shows up at 3:00 (Council Chambers) to let the city council know how we feel about what has happened in this mayoral selection process, and the damage Kelly has caused to our city's reputation.

Roy

-----------------Begin Forward Mail --------------------
From: "William L. McClure" <wlm@jsmf.com>
Date: December 9, 2010 10:25:20 PM PST
To: Margaret S Roberts <msroberts@menlopark.org>
Cc: Kelly J Fergusson <kjfergusson@menlopark.org>
Subject: RE: special meeting Friday 3 pm

The public always has the right to comment on any item on the agenda, whether it is a regular meeting or a special meeting. (There is no "public comment" period for items not on the agenda at a special meeting, hence no listing for "public comment" on the agenda.) Bill


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 10, 2010 at 7:35 am

Sadly even the Town Attorney needs a Brown Act refresher - the law states:"Every NOTICE for a special meeting SHALL PROVIDE an opportunity for members of the public to directly address"

That opportunity for public comment MUST be in the NOTICE of the meeting.








Posted by POGO, a resident of Woodside: other
on Dec 10, 2010 at 7:45 am

It shows you the incredible incompetence of these people. Meeting agendas are a "template" on their Word programs. That boilerplate provides for a public comment session. The attorney had to delete it when he prepared the agenda for this meeting. These officials are truly clueless.

I hope the public comment doesn't include many calls for Ms. Fergusson's resignation. The selection of Mayor says more about the other Council Members then it does about Ms. Fergusson. Those who object to Ms. Fergusson's back room deal making should appeal to the other council members and ask them to show their contempt for Ms. Fergusson's repeated lack of integrity and contrition by simply selecting another candidate for mayor.


Posted by Deeply Disappointed, a resident of Menlo Park: Downtown
on Dec 10, 2010 at 8:23 am

I have read all of these posts, and I think what Steve and Kelly's supporters are missing is this:

Kelly has shown that when faced with the opportunity for personal gain, even for something her supporters argue is as trivial as a honorary title that she has already held before, she could not control her actions, and broke the law. To say that she somehow misunderstood the Brown Act is just furthering the transgression, with another lie. The Brown Act is mentioned in almost every conversation anyone has at City Hall. Kelly absolutely knew she was breaking the law, or her competency level after six years in office should seriously be questioned.

But perhaps what is most disturbing is that Kelly had a real motive to break the law, greater than a honorary title. The underlying issue, is that what was at stake for was not just an honorary title. Kelly broke the law and BECAME the City's chief elected official in a year that their is a strong possibility the city will be engaged in litigation in defense of a ballot measure she and her union backers opposed. To be elected Mayor both rehabilitates her image from the measure's defeat, and gives her the opportunity to influence administratively the measure's future. There was a very strong personal and political motive for Kelly to be mayor this year. And Kelly allowed the election to occur and proceed even when reminded of the Brown Act, prior to the vote. She knew she had broken the law, but continued with her plan. Only later when threatened with legal action, did she retreat.

Whether you are a Democrat, or Republican, a Residentialist, or a Development supporter,
makes no difference.

Kelly has broken the public trust, and is compounding the issue by continuing to lie that she somehow misunderstood the law. It is sad, but she no longer deserves a vote representing the interests of the citizens of Menlo Park, because we won't know if the vote represents her own personal motives, or ours. She should resign.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 10, 2010 at 9:44 am

Cure and Correct does not trump criminal complaint


Mr. McClure,
You are quoted as saying "if the city council takes action to cure and correct any action that resulted from a Brown Act violation, there is nothing for the D.A. to do."

It is not for you, as an employee of the council, to speak for the D.A.

The Brown Act provides for both criminal and civil remedies and criminal penalties. I would note that the section on criminal penalties precedes and is separate from the two sections se on civil remedies. The Cure and Correct one of two sections on the civil remedies for the legislative body to undue the damage done by a Brown Act violation and it contains no provision for censure or punishment of the individual who violated the act.


Given that Ms. Ferguson has admitted "I was lobbying or stating my position to inform members of the council, and to gain their support" and given that she is a long time public officer holder who has received numerous Brown Act and ethics trainings, and who has been repeatedly been questioned and warned about her potential Brown Act violations, and given that the Act specifically states "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 on an item by the members of the legislative body is prohibited" then I believe that Ms. Ferguson is a habitual offender whose continued service in public office must be subjected to judicial review and, if deemed necessary, punishment and or judicial oversight.

Sincerely,


Peter Carpenter

54959. Violation of Act; Criminal penalty
Each member of a legislative body who attends a meeting of that legislative body where action
is taken in violation of any provision of this chapter, and where the member intends to deprive the
80
public of information to which the member knows or has reason to know the public is entitled under
this chapter, is guilty of a misdemeanor.
54960. Violation of Act; Civil remedies
(a) The district attorney or any interested person may commence an action by mandamus,
injunction or declaratory relief for the purpose of stopping or preventing violations or threatened
violations of this chapter by members of the legislative body of a local agency or to determine the
applicability of this chapter to actions or threatened future action of the legislative body, or to
determine whether any rule or action by the legislative body to penalize or otherwise discourage the
expression of one or more of its members is valid or invalid under the laws of this state or of the
United States, or to compel the legislative body to tape record its closed sessions as hereinafter
provided.
(b) The court in its discretion may, upon a judgment of a violation of Section 54956.7,
54956.8, 54956.9, 54956.95, 54957, or 54957.6, order the legislative body to tape record its closed
sessions and preserve the tape recordings for the period and under the terms of security and
confidentiality the court deems appropriate.
(c) (1) Each recording so kept shall be immediately labeled with the date of the closed
session recorded and the title of the clerk or other officer who shall be custodian of the recording.
(2) The tapes shall be subject to the following discovery procedures:
(A) In any case in which discovery or disclosure of the tape is sought by
either the district attorney or the plaintiff in a civil action pursuant to Section 54959, 54960, or 54960.1
alleging that a violation of this chapter has occurred in a closed session which has been recorded
pursuant to this section, the party seeking discovery or disclosure shall file a written notice of motion
with the appropriate court with notice to the governmental agency which has custody and control of
the tape recording. The notice shall be given pursuant to subdivision (b) of Section 1005 of the Code
of Civil Procedure.
(B) The notice shall include, in addition to the items required by Section
1010 of the Code of Civil Procedure, all of the following:
(i) Identification of the proceeding in which discovery or disclosure
is sought, the party seeking discovery or disclosure, the date and time of the meeting recorded, and the
governmental agency which has custody and control of the recording.
(ii) An affidavit which contains specific facts indicating that a
violation of the act occurred in the closed session.
81
(3) If the court, following a review of the motion, finds that there is good cause to
believe that a violation has occurred, the court may review, in camera, the recording of that portion
of the closed session alleged to have violated the act.
(4) If, following the in camera review, the court concludes that disclosure of a
portion of the recording would be likely to materially assist in the resolution of the litigation alleging
violation of this chapter, the court shall, in its discretion, make a certified transcript of the portion of
the recording a public exhibit in the proceeding.
(5) Nothing in this section shall permit discovery of communications which are
protected by the attorney-client privilege.
54960.1. Violation of Act; Actions declared null and void
(a) The district attorney or any interested person may commence an action by mandamus
or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative
body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5
is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative
body from curing or correcting an action challenged pursuant to this section.
(b) Prior to any action being commenced pursuant to subdivision (a), the district attorney
or interested person shall make a demand of the legislative body to cure or correct the action alleged
to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5. The
demand shall be in writing and clearly describe the challenged action of the legislative body and nature
of the alleged violation.
(c) (1) The written demand shall be made within 90 days from the date the action was
taken unless the action was taken in an open session but in violation of Section 54954.2, in which case
the written demand shall be made within 30 days from the date the action was taken.
(2) Within 30 days of receipt of the demand, the legislative body shall cure or
correct the challenged action and inform the demanding party in writing of its actions to cure or correct
or inform the demanding party in writing of its decision not to cure or correct the challenged action.
(3) If the legislative body takes no action within the 30-day period, the inaction
shall be deemed a decision not to cure or correct the challenged action, and the 15-day period to
commence the action described in subdivision (a) shall commence to run the day after the 30-day
period to cure or correct expires.
(4) Within 15 days of receipt of the written notice of the legislative body's decision
to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30-day period to
cure or correct, whichever is earlier, the demanding party shall be required to commence the action
pursuant to subdivision (a) or thereafter be barred from commencing the action.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 10, 2010 at 10:08 am

Speaking out works !!

NOTICE OF CANCELLATION OF SPECIAL MEETING
THE SPECIAL CITY COUNCIL AND COMMUNITY DEVELOPMENT AGENCY MEETING OF
FRIDAY, DECEMBER 10, 2010 HAS BEEN CANCELLED

See attached


Margaret S. Roberts, MMC
City Clerk
City of Menlo Park
701 Laurel Street
Menlo Park, CA 94025
Voice: 650-330-6620
Fax: 650-328-7935


Posted by Central Menlo, a resident of Menlo Park: Central Menlo Park
on Dec 10, 2010 at 10:34 am

The cancellation/rescheduling announcement:

Web Link

A minor point, the agenda calls to "consider rescinding" and continues to presume that "Elections" to follow, are a given:

"The following topics are being added to the agenda for the
December 14, 2010 regular meeting of the City Council:

Council consider rescinding the elections of the Mayor and Mayor Pro Tempore/Vice-Mayor and declaring said elections null and void

Elections for the positions of Mayor and Mayor Pro Tempore/Vice-Mayor"


Posted by WhoRUpeople, a resident of another community
on Dec 10, 2010 at 10:49 am

During my hitch in the military, we had a two word term for situations like this, but it isn't suitable for polite conversation--so I'll just say, what a disfunctional mess!


Posted by Roy Thiele-Sardiña, a resident of Menlo Park: Central Menlo Park
on Dec 10, 2010 at 11:04 am

Roy Thiele-Sardiña is a registered user.

WhoRUpeople: we use the term all the time in business and it is abbreviated as CF.......and yes that is exactly what we have here.

Hopefully we can make the necessary changes and let Menlo Park move on with a new Mayor. We have important business to do this year, with huge long-term financial ramifications. We need a strong and united council to do that.

To that end, Kelly's resignation would help resolve all the credibility issues that her criminal activity have brought.

Roy Thiele-Sardiña


Posted by WhoRUpeople, a resident of another community
on Dec 10, 2010 at 3:17 pm

Roy, thanks, I wasn't sure if I could use the CF abbreviation without violating terms of use. That was exactly my meaning. Unfortunately, now that Kelly has resigned and given the process that seems to be emerging from the staff reports and Fergusson's resignation letter, we've only seen the start of the CF(to be continued next Tuesday evening).


Posted by Interested Observer, a resident of Menlo Park: other
on Dec 10, 2010 at 5:22 pm

I miss John Boyle


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 10, 2010 at 5:42 pm

Dear Mr. Carpenter,

Thank you for bringing this matter to our attention. Please be assured that we are continuing to monitor these proceedings and will be making a determination as to what action, if any, may be appropriate when a full review of the facts and circumstances surrounding these issues has been completed.

Sincerely,

Albert A. Serrato
Deputy District Attorney




>>> "Peter Carpenter" <peterfcarpenter@gmail.com> 12/9/2010 1:20 PM >>>
Dear Mr. Serrato,
Ms. Ferguson has acknowledged her violation of the Brown Act and I believe that this in 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.


Sincerely,

Peter F. Carpenter


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 10, 2010 at 5:48 pm

Interested Observer: I do, too!

Peter Carpenter: Thank you for posting your correspondence with the District Attorney's office!

Kelly should resign, and the Council should appoint John Boyle to complete the remainder of her term. Either that or Kelly should be recalled, and the Council should appoint John Boyle.

Kelly does not belong in public office. She's technically a criminal, having violated the Brown Act.


Posted by Roy Thiele-Sardiña, a resident of Menlo Park: Central Menlo Park
on Dec 10, 2010 at 6:00 pm

Roy Thiele-Sardiña is a registered user.

The wanton disregard Kelly has for the law, and the lack of respect she has for the citizens of Menlo Park make her an undesireable Mayor and Councilmember.

As anyone who has watched this council interact for the last 4 years knows. This is HARDLY her first violation. In fact Mr. McClure took the whole council aside at least twice this year to remind them of their obligations under the Brown Act.

Kelly is a LIFETIME politician (6 years on MP Council,4 years on MP Planning) who has been tutored and guided by the San Mateo Democratic Central Committee. If She can't remember the simple Brown Act rules, she is undeserving of ANY office in this city, county or state.

She broke the law and the District Attorney needs to investigate this and prosecute her if she violated the law.

Putting Mr. McClure in the position of legal advisor to the Council and investigator is unfair to Mr. McClure who has done an outstanding job in serving Menlo Park.

Roy Thiele-Sardiña


Posted by perspective, a resident of Menlo Park: Allied Arts/Stanford Park
on Dec 11, 2010 at 9:48 am

While I don't condone what Kelly did, this action falls way short of what should justify removal from office. Far, far worse Brown Act violations have occurred in the past by some of the very same people demanding her resignation. Some were undocumented study sessions in which direction was given to staff. In those instances, land use and policy city decisions were involved. Although formal allegations weren't made, partly because the Brown Act requires swift action, subsequent changes were made to council processes.

The selection of council leadership is important but let's face it, the positions are largely ceremonial. Perspective is needed. Asking for removal from office is extreme, inappropriate, and sets a terrible precedent.


Posted by Outside Looking In, a resident of Menlo Park: other
on Dec 11, 2010 at 10:41 am

Perspective: if this were a Wall St., private corporation, or venture capital "slip-up", then everyone would be outraged because money would be involved.

Let me give you some perspective about Fergusson's Brown Act violation. She violated the law-- bottom line.

Although the Mayor's role is probably largely ceremonial, at the end of day, the Mayor sets the agenda. Pension reform will be at the top of the Council's agenda. Pension reform deals with a lot of taxpayer dollars-- THE PEOPLE'S MONEY. Fergusson was against Measure L and was very public about it. As the Mayor, she would have had to uphold the provisions of Measure L, which was passed by 72% of Menlo Park voters. If you she violates a known law (the Brown Act), of which she has known about throughout her political "career", my guess is that she would also violate the will of the people-- enforcing Measure L.

So, when the public trust is violated, the violator should be removed from office, especially when there's money involved. The private sector should not be held to a higher standard-- the public sector should be. After all, we are dealing with money-- the people's money/tax dollars! The last I checked, public money is not monopoly money, which is how elected officials, like Fergusson, are treating our tax dollars. No wonder voters overwhelmingly passed Measure L! Menlo Park needs someone who will enforce the will of the people-- not her own agenda. Menlo Park deserves better!


Posted by relative newcomer to Menlo Park, a resident of Menlo Park: Sharon Heights
on Dec 11, 2010 at 6:16 pm

There's a rush to judgement taking place here. Kelly Fergusson is being pilloried by blogging by people who don't even live in Menlo Park. The last time I looked Menlo Park still had
a City Attorney capable of uncovering wrongdoing. This isn't the wild west, let due process
prevail. I often times agree with Peter Carpenter but this one time I think he's out-of-bounds.
Does he plan to make a citizen's arrest? Let's have all the facts available and then have a civil
discussion regarding appropriate outcomes.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2010 at 6:23 pm

relative newcomer states:"I often times agree with Peter Carpenter but this one time I think he's out-of-bounds."

As I posted on the other thread on this topic:

Central Menlo - it is not for me or for you to decide if a crime has been committed and, if so, if charges should be made. That is the job of the District Attorney. We are a nation of laws and that is the way that it should be.


Posted by Tim Wulff, a resident of another community
on Dec 11, 2010 at 9:23 pm

For one, I cannot express how enormously proud I am of Peter Carpenter's contribution in this situation, and how impressed I am at his competence and politeness.

Being knowledgeable, correct and politely yet firmly assertive is a laudable and powerful manner for a presentation.

We should all be grateful to ANY individual able to conduct himself in such a manner.


Posted by perspective, a resident of Menlo Park: Allied Arts/Stanford Park
on Dec 11, 2010 at 9:44 pm

I agree that pension reform should be implemented (and other important more responsible financial measures taken, too). However, it really is staff that sets the council agenda unless at least 2 councilmembers request a formal vote to add something. And it takes 3 votes for anything to change. The major is just 1/5 of the council.
The most important thing the mayor does is run meetings. I am hopeful that these will be more tightly run than in the recent past so that the community can participate and everyone can get a decent night's sleep.
Don't get me wrong, I would not be thrilled with Fergusson as mayor, but I don't see that her mistakes are worthy of removal from office. Quite honestly, the part of the whole event last week that bothers me the most is that Ohtaki was not selected as Vice Mayor. He won the most votes in the November election and the right to be mayor in a year. Serving as vice mayor is helpful prep for that role.


Posted by Menlo Voter, a resident of Menlo Park: other
on Dec 11, 2010 at 10:19 pm

Newcomer and perspective:

Kelly broke the law! If she did so "unknowingly," after ten years in public service, she is incompetant. If she did so knowingly, she committed a criminal act. In either case she is not suited for public office. I do not want her sitting on the council. She has lost all credibility. She should resign.


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