A Menlo Park city councilman filed a complaint with the state bar association claiming that
CalAware’s Terry Francke had made an erroroneous allegation of Brown Act violations against council members hurting their chances in the Nov. 2 election. Francke later retracted his allegation. -db
The Almanac
November 23, 2010
By Sandy Brundage
On the same day the Daily Post ran a front page apology for two stories and an editorial that said three Menlo Park council members violated the Brown Act by exchanging e-mails discussing campaign issues, one of those council members, Heyward Robinson, announced he’d filed a complaint with the state bar association regarding noted First Amendment attorney Terry Francke’s involvement with the stories.
After the stories ran a few days before the Nov. 2 election, Mr. Robinson discovered that Mr. Francke had never actually seen the e-mails before the attorney declared “a very serious Brown Act violation” had occurred.
Once Mr. Francke did view the e-mails, the day before the election, he retracted his statement and apologized, saying there was in fact no Brown Act issue.
He told The Almanac this was the second correction run by the Post and that he had personally apologized to Mr. Robinson. “I’ve read the complaint and I sympathize with its sentiment, but I’ve checked the Rules of Professional Conduct and don’t see any that address this situation,” Mr. Francke said.
The complaint filed on Nov. 5 asked the state bar to hold the attorney accountable for his errors “and their serious and irreparable consequences,” namely, the possible political harm done to the two council members running for re-election.
“It most certainly did political damage to the incumbents, causing some to vote against them,” Mr. Robinson wrote in the letter.
He told The Almanac that his review of precinct-level voting data from San Mateo County showed a weaker-than-expected performance in the precinct encompassing the Willows neighborhood; copies of the Post stories were distributed to the neighborhood’s Yahoo message board online.
“To see that tells me something had an effect, but I don’t think it was any one factor,” Mr. Robinson said, explaining that fellow incumbent Rich Cline’s third-place finish came as more of a surprise than his own loss.
Another factor he cited as affecting the election included lack of public awareness about the council’s accomplishments during the past four years.
Since both incumbents were mentioned in the Post stories and share a similar history of service on the council, yet Mr. Cline will keep his seat on the dais, there may be an additional factor at work.
The passage of the pension reform initiative by 71 percent indicates most Menlo Park residents supported Measure L. While Mr. Cline chose to stay publicly neutral about the initiative, Mr. Robinson openly opposed it.
Data released on Nov. 17 by the county suggests the articles may not have had a huge impact; Mr. Robinson trailed the other incumbent by 167 votes among those cast on election day a slightly smaller gap than in the vote-by-mail category. The same trend held for Mr. Cline’s distance behind second-place winner Kirsten Keith.
Still, notoriety is not the sort of attribute that wins elections. “Certainly it doesn’t help to have blazing headlines that say ‘e-mails expose incumbents,'” Mr. Robinson said. “Unfortunately journalism is largely self-policed. There’s not a lot of recourse for someone on the other end of an incorrect story, especially if you’re a public figure.”
The Daily Post did not respond to Almanac requests for comment.
Note: An earlier version of this story said the complaint was filed Nov. 19, based on the date written at the top of the letter provided to The Almanac by Mr. Robinson. Mr. Robinson has now said the date on the letter was incorrect, and the complaint had been filed on Nov. 5.
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