Menlo Park mayor resigns after apparent open meeting violation

Menlo Park’s new mayor resigned three days after he appointment, admitting that her private consultations with two other council members about the mayor vote constituted serial meetings in violation of the state’s open meeting law. -db

San Jose Mercury News
December 12, 2010
By Bonnie Eslinger

Three days after being appointed mayor of Menlo Park, Kelly Fergusson resigned from her post Friday in the fallout from apparently having violated the state’s open government law.

Fergusson also removed herself as a candidate for mayor when the city council votes again Tuesday night for a new leader.

“I recognize the city faces critical business during the coming year, and that my actions have created a distraction from essential focus of the council on this business,” Fergusson wrote in a statement released Friday morning.

“Having the best interest of the city at heart, I hereby resign as Mayor,” Fergusson said. “I will not stand as a candidate when a new Mayor is elected.”

A special council meeting had been scheduled for Friday afternoon so another vote could be taken to rectify the state law violation, but it was canceled. The city otherwise would have violated the same state law because it failed to state on the meeting notice hastily sent out Thursday that the public has a right to comment at the special session.

The resignation came one day after Fergusson admitted she discussed the mayoral vote with two council colleagues and had an intermediary talk to another before the Dec. 7 meeting. Those discussions apparently violated the state government law known as the Brown Act, City Attorney Bill McClure said.

Under the Brown Act, elected officials aren’t supposed to talk directly or through an intermediary with a majority of elected colleagues about city business scheduled for discussion by the full government body. By contacting two colleagues directly and one through an intermediary, Fergusson discussed the mayoral job with a quorum of the five-member city council before the scheduled vote.

On Friday, Fergusson reasserted that the violation was unintentional.

“I did not consider my individual contacts with council members or lobbying of members on my behalf to constitute a serial meeting, nor did I intend to violate any provision of the Brown Act,” Fergusson wrote in her latest statement. “However, in retrospect, and after discussing this in more detail with the City Attorney, I now realize that, in the aggregate, my conduct may well have constituted a serial meeting.”

Doing ‘the right thing’

Fergusson was appointed mayor on a 3-2 vote. Former mayor Rich Cline and newly-elected Council Member Kirsten Keith voted for Fergusson, who cast a the third vote for herself. During the same meeting, Keith was appointed vice mayor after being nominated by Fergusson.

Council Member Peter Ohtaki, who is also new, said he appreciated Fergusson resigning.

“That was the right thing for Kelly to do,” Ohtaki said. “I think it’s important to get past this and work on the key issues that the city faces.”

At the Dec. 7 meeting, Ohtaki had nominated Council Member Andy Cohen to be mayor. He declined Friday to discuss whether he would support Cohen again on Tuesday.

A non-binding city policy that the council has traditionally followed says the mayor’s position should be rotated among members who have served on the council for at least one year, with the turn for mayor going to the person who had served longest without the title. After Fergusson that would be Cohen, but his appointment is not certain.

Cline previously told The Daily News he would serve if nominated, and McClure said even a newly-elected council member could become mayor.

In her statement, Fergusson recommended that the “council’s policy of mayoral selection be suspended.”

Cohen, who has previously said he felt marginalized by other council members, pointed out that Fergusson had been all for the policy when her turn for mayor was coming up.
“I think Kelly’s trying to squeeze me out,” Cohen said.

Cline and Keith did not respond to calls for comment Friday.

A second violation?

The city’s decision to reschedule the meeting to Tuesday prevented an additional violation of the Brown Act, said Peter Carpenter, an Atherton resident who filed the original complaint against Fergusson in the form of a formal “cure or correct” request.

Carpenter sent the city an e-mail Thursday objecting to a mid-afternoon meeting with only one-day’s notice.
At 7:01 a.m. Friday, he sent another e-mail noting that the meeting notice did not explain the public would have an opportunity to comment — a Brown Act requirement.

McClure posted a challenge to Carpenter’s assertion on the city’s website, but followed up with another e-mail admitting Carpenter was correct. By 10:05 a.m. the city sent out a new notice, with the appropriate wording, and moved the meeting to Tuesday.

Carpenter said he was “stunned” to have to tell the city attorney how to comply with the state’s open government law.

“These people are waving the flag, saying we believe in the Brown Act,” he said. “Perhaps the first thing they should do is read it.”

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