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Terry Franke retracts Brown Act violation statement

From: Heyward Robinson <hrobi_at_(domain_name_was_removed)>
Date: Mon, 1 Nov 2010 17:47:37 -0700
To whom it may concern,

As you know, The Daily Post has accused me, Rich Cline, and Kelly Fergusson of a "serious Brown Act violation" with respect to email messages that were uncovered during a recent public records request.  I am very diligent about adherence to the Brown Act and believe that the accusation is baseless.  Today, I contacted the attorney, Terry Francke, that the Daily Post's article quoted.   I sent him the actual email where the three of us were copied.  Below is his reply:  "No, I see no substantive discussion here whatsoever and no Brown Act issue. "  He goes on to state that the reporter never actually sent him the messages, but only described them over the phone.   A second email (attached) from Mr. Francke (which I'll also forward) elaborates on this further: "Moreover, if the reporter drew a distinction between Ms. Fergusson's message(s) about Measure L and those involving you, I did not hear it.  I apologize for whatever embarrassment my mistaken conclusions caused you and the others." 

I find this to be a serious violation of journalistic ethics.  The Daily Post should run an immediate retraction of this story; issue an apology; and apply appropriate discipline to the reporters and editors involved. 

I also hope that other local media outlets will make sure that the true facts are fully vetted.

Respectfully,

Heyward Robinson



-------- Original Message --------
Subject: Re: [Fwd: FW: FW: Mailing decisions]
Date: Mon, 1 Nov 2010 16:33:18 -0700
From: Terry Francke <terry@calaware.org>
To: Robinson, Heyward <hgrobinson0@menlopark.org>
References: <4CCF4719.2010805@comcast.net>


No, I see no substantive discussion here whatsoever and no Brown Act  
issue.  And no, I did not see the messages but heard only a  
description of them.

Terry Francke

On Nov 1, 2010, at 4:02 PM, Heyward Robinson wrote:



===================================
Heyward Robinson, Ph.D.
City Council Member
City of Menlo Park 
-----------------------------------
650-328-5367 h
650-465-8633 personal cell
650-208-1512 Menlo Park blackberry
425-871-4450 fax
hgrobinson@menlopark.org
===================================

attached mail follows:



Moreover, if the reporter drew a distinction between Ms. Fergusson's message(s) about Measure L and those involving you, I did not hear it.

I apologize for whatever embarrassment my mistaken conclusions caused you and the others.

Terry Francke
Californians Aware

On Nov 1, 2010, at 4:19 PM, Heyward Robinson wrote:

Terry,

I should add that there was a separate email message that Council Member Fergusson sent to one or more individuals about "Measure L". Neither Mayor Cline nor I were copied on that message. I only know about it from the Daily Post's article. The individuals that it was sent to are not elected officials. Councilmember Fergusson could probably send you a copy of that message if you would like to see it.

I'm curious to know if the Daily Post's reporter sent you the emails in question or just described them over the phone?

Thanks,

Heyward

Terry Francke wrote:
Mr. Robinson,

There's no copy of the Post story online, so I'm not sure what the full context is. I recall the reporter telling me that the e-mails shared among three council members referred in part to a pending ballot measure. If that's incorrect then so is my conclusion.

I agree you all have a First Amendment right to communicate and associate for political purposes, but I think you can see how that could be pushed by a council majority far enough to utterly undermine the Brown Act, one of the laws all council members are sworn to uphold. For example, if a council majority supports (or opposes) a measure on the city ballot, then whatever it collectively discusses about getting it passed (or defeated at) the polls is going to affect something within the council's subject matter jurisdiction.

Best wishes,

Terry Francke

On Nov 1, 2010, at 12:48 PM, Heyward Robinson wrote:

Terry, You were recently cited in a local newspaper (the Daily Post) as an "expert" on the Brown Act. The article states:

"Attorney Terry Francke, of the First Amendment advocacy group Californians Aware, said Fergusson “has no business using a city e-mail account for political purposes.” The e-mails that were sent to all three council members, Francke said, violated the Brown Act, which regulated government meetings. Francke said that’s because the election of two council seats and city measure affect city business. “I thinks there is a very serious Brown Act violation here,” Francke said yesterday." I'm one of the Council Members that you accuse of a Brown Act violation. This is a very serious accusation and one that is without merit. Please the the statement below from Menlo Park's City Attorney about this issue.

I am very conscientious in upholding both the letter and spirit of California's open meeting laws. If I do have discussions about an issue that will come before the Council, I make sure that I only discuss it with a single other Council Member so as not to constitute a majority of Council prior to the issue being heard at a properly noticed meeting.

I am sure that you are aware that organizing and running a political campaign is protected by the First Amendment. Specifically, distribution of campaign literature is covered by the freedom of speech; collaborating on campaign strategy is covered by the freedom of association. I hope that as a First Amendment advocate, you will vigorously defend my rights in this case.

Please let me know if you have any addition thoughts on this issue.

Heyward Robinson,
Menlo Park City Council

From: William L. McClure
Sent: Monday, November 01, 2010 10:15 AM To: 'Sandy Brundage'
Subject: RE: Brown Act and city email

I did review the council emails that were produced in response to the Post’s CPRA request and concluded that there was no violation of the Brown Act. The Brown Act applies to meetings, which include any congregation of a majority of the members of a legislative body at the same time and place to “hear, discuss or deliberate upon any matter which is under the subject matter jurisdiction of the agency.” The Act also prohibits any use of direct communication, personal intermediaries or technological devices employed by a majority of the members of the legislative body “to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” The only emails that involved communications between multiple council members related to (a) campaign mailings with no discussion of content, positions on issues, or any substantive matters, and/or (b) attending an event in the Felton Gables neighborhood—neither topic being or relating to an item of business within the subject matter jurisdiction of the city council.

Best regards, Bill

From: Sandy Brundage [mailto:sbrundage_at_embarcaderopublishing.com] Sent: Monday, November 01, 2010 9:41 AM
To: William L. McClure
Subject: Brown Act and city email

Hi Bill:

Kelly Fergusson said you reviewed all the council emails and found no Brown Act violations. Is that accurate? She says you decided everything was legal.

Working from home today and on deadline - hoping you can give a quick response by 1 p.m.

Thanks-
Sandy

--
----------------------------------------
Sandy Brundage
Staff Writer, The Almanac
(650) 854-2690 x223 ph
(650) 293-7754 cell
(650) 223-7529 fax
sbrundage_at_almanacnews.com<mailto:sbrundage_at_almanacnews.com>

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--

===================================
Heyward Robinson, Ph.D.
City Council Member
City of Menlo Park
-----------------------------------
650-328-5367 h
650-465-8633 personal cell
650-208-1512 Menlo Park blackberry
425-871-4450 fax
hgrobinson_at_menlopark.org<mailto:hgrobinson_at_menlopark.org>
===================================



--

===================================
Heyward Robinson, Ph.D.
City Council Member
City of Menlo Park
-----------------------------------
650-328-5367 h
650-465-8633 personal cell
650-208-1512 Menlo Park blackberry
425-871-4450 fax
hgrobinson_at_menlopark.org<mailto:hgrobinson_at_menlopark.org>
===================================
Received on Mon Nov 01 2010 - 18:03:18 PDT

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