In November Menlo Park voters voted to deny another term to a member of the city council. That member, Heyward Robinson, complained that he was the victim on the eve of the election of a baseless accusation of having violated the Brown Act.  Now, while looking into an alleged violation of that law by a fellow council member in the same time period, the San Mateo County District Attorney has turned up some interesting evidence from a year ago, reports Bonnie Eslinger in the Palo Alto Daily News.

In its investigation of Menlo Park Council Member Kelly Fergusson's recent violation of a state open government law, the San Mateo County District Attorney's Office is reviewing what appears to be a similar offense involving current and past council members a year ago.

If the offense occurred, Fergusson will have a tough time explaining to prosecutors how she didn't realize that asking her colleagues before a meeting last month to name her mayor was wrong under the state law, known as the Brown Act. Though Fergusson was appointed mayor at that meeting, she stepped down three days later following a public furor about her perceived lobbying.

District Attorney Steve Wagstaffe told The Daily News that conversations former council member Heyward Robinson had with Fergusson, Mayor Rich Cline and former council member John Boyle in December 2009 will be taken into account in the current investigation.

Back then, the council nominated then-mayor Robinson for a spot on the regional San Mateo County Transit District board instead of Boyle.

Boyle, who didn't seek re-election after his term ended last year, said that before the vote he was approached by Robinson, who said he had already enlisted Fergusson's support. Later, during the meeting, Cline mentioned that Robinson had sought his support as well.

Boyle said he took his concerns that a quorum of council members had discussed the nomination before the meeting — a possible Brown Act violation — to City Attorney Bill McClure.

"I didn't want this kind of thing to keep happening," Boyle said.

He said McClure later told him he subsequently cautioned each council member against having serial discussions with each other on matters scheduled for a vote at public meetings.

One year later, on Dec. 10, Fergusson resigned from her newly selected position as mayor after admitting she had directly talked to Cline and new Council Member Peter Ohtaki and indirectly to new Council Member Kirsten Keith about her desire to become Menlo Park's next mayor. She insisted that the violation was unintentional.

"When this thing happened with the new mayor and the council, and I was hearing it was inadvertent, I thought, 'Wait a minute, this just happened a year ago,' " Boyle said.

Wagstaffe, who said he had not heard about the December 2009 serial conversations until contacted by The Daily News, said he considers that information "relevant" to the review his office began three weeks ago to determine whether criminal charges are warranted.

"Was there an incident in the last year when you told people they can't do this sort of thing? Sure, that would be relevant to us; what's on the scale for decision-making," Wagstaffe said.

While McClure cited attorney-client confidentially in declining to confirm any conversations with council members related to the December 2009 transit board vote, Robinson and Cline both said they recall the city attorney's warning at the time.

"I do remember Bill saying, 'Hey, you can't talk to a couple of different people,'" Cline said.

The Brown Act specifically prohibits elected officials from communicating directly with a quorum of colleagues, or using an intermediary, to create "concurrence" on a matter that is supposed to be discussed at a public meeting of the elected body.

Robinson said he merely asked Fergusson and Cline to speak on his behalf to officials in other cities who would be voting on the regional position. He also noted that the conversations took place before he knew Boyle was planning to run for the seat himself.

"I may have asked Rich to also put in a good word for me, but it was never in the context of, 'Will you support me over John?' " Robinson said.

Cline also noted that at the time he didn't know how many other people Robinson had talked to.

Fergusson did not respond to an e-mail and call for comment on this story.

Even when a violation of the Brown Act has been verified, not every case is appropriate for criminal prosecution, Wagstaffe said.

The state law also provides for a "cure and correct" action when an elected body has violated the government transparency law. In Menlo Park's case, the council declared the Dec. 7 mayoral selection null and void and revoted the following week after Fergusson removed herself from consideration.

"The average case is 'cure and correct,'" Wagstaffe said. "I don't know where this one fits in."