Open government violation by a council member delay on library decision

menlo park city council

Daily Post Staff Writer
A open-government violation by a Menlo Park councilwoman will likely sideline the city’s controversial library revamp project until next year.

The council was supposed to discuss next steps regarding the city’s potential replacement of its main library at Burgess Park, but the meeting has been abruptly canceled by City Attorney Bill McClure.

But Councilwoman Kirsten Keith discussed the project with at least two members of council, violating the state’s Brown Act, which is intended to keep elected officials from making backroom deals.

On a five-member council, one council member can only discuss an item with one other council member outside of a scheduled meeting. If a council member talks to two council members, that means three people would be involved in the conversation. And three people would constitute a majority on a five-member council. Keith, who serves on the council’s library subcommittee with fellow councilman Rich Cline, had discussed the project with him, according to a report by McClure regarding the violation.

But then she had a short conversation about the library with another council member, Mayor Peter Ohtaki, according to McClure.

Keith and Ohtaki talked about the library Aug. 16 at the downtown Block Party, McClure said.

Toward the end of the conversation however, Keith commented to Ohtaki that “she hoped he would support moving forward” with the library project, McClure’s report says.

McClure wrote that Ohtaki responded to Keith in a “noncommittal manner,” saying he wasn’t sure how he would vote on the topic.

The Brown Act violation came to light after Councilman Ray Mueller contacted Ohtaki to talk about the library project and Ohtaki told Mueller that he couldn’t talk about the issue because he had already discussed it with Keith.

Ohtaki then raised the issue with McClure, according to the city attorney’s report.


McClure — who, as city attorney, reports to council — said the violation was “inadvertent.”

He said that since there were no “collective decisions” made by a majority of the council to vote one way or the other for the library revamp, there was no criminal violation of the Brown Act. He said the city need to admonish the council members involved.

The violation was also disclosed to the District Attorney’s office, and Assistant District Attorney Al Serrato determined that there was no criminal action and no charges would be brought against Keith or any other council member.

However, the DA’s office did recommend that the city disclose the violation publicly. The disclosure will be made when McClure presents his report on the violation at Tuesday’s meeting.

Because of this incident, McClure is recommending shelving the library project until January when there will be a new council. Ohtaki and Keith are running for re-election, while Cline has decided not to run again.

Also, the positions of library director and assistant public works director are vacant, making it difficult for council to move forward at this time anyway.

The city is trying to decide whether to accept a $38 million donation from billionaire John Arrillaga that will pay part of the cost of a new downtown library, and whether to build a new library in the Belle Haven neighborhood.

Previous Brown Act violation

This is not the first time Brown Act violation by the Menlo Park City Council. In 2010, then-Councilwoman Kelly Fergusson lobbied Cline and Ohtaki to vote for her for mayor.
Fergusson was voted in as mayor 3-2, with votes from herself, Keith and Cline. Late councilman Andy Cohen and Ohtaki voted against Fergusson’s appointment as mayor.

Menlo Park Fire Protection Board Member Peter Carpenter blew the whistle on Fergusson’s lobbying, and Fergusson gave up her seat as mayor, but stayed on council before losing re-election in 2012.

Fergusson also had to attend ethics classes. She was investigated by the DA’s office, which declined to press charges.


  1. I doubt this mistake was inadvertent. Keith has been on council a long time and knows the rules. She was just trying to get away with something. It’s time for her to go. Glad people in her district have a strong alternative like Drew Combs.

  2. what’s inadvertent about it? KK’s only supposed to talk to one other council member about the library, but she talks to two people … she knew the rules, she knew the boundaries, it’s willful … she should be facing criminal charges.

  3. Interesting they are allowed to talk to anyone outside of open meeting. Having served on public boards (admittedly not in CA) we were allowed no outside discussion.

    But, I can see how it happens, hopefully unintentionally.

  4. Having respect for the Brown Act means understanding that a disclosure must be made if there may have been a serial meeting. When disclosure is made before the meeting, as was done here, there is “nothing to cure.”

    DA commented that there should be criminal charges. Sadly, DA is one of the “uninformed voters” that Dave Price is so upset by. DA has no interest in reading the brown act, and has complete disregard for the opinion from the DA’s office.

  5. Missed the original story, but see the correction in today (Sep 6) Daily Post where Keith says she only urged Ohtaki to “support” a proposal for a new main library, but that she didn’t ask him to “vote” for it. This is really splitting hairs on Keith’s end. In addition to the recent Brown Act violation, Keith called MP commissioners and other individuals to ask them to write Council (or to speak) to urge a “yes” vote for the library’s choice for a new Main Library site. One person described the call from Keith as “heavy pressure” to agree to what Keith wanted done. Our City Attorney said that these calls by Keith were legal. However, other cities restrict lobbying-style calls by a council members to commissioners as part of their Code of Ethics. A Council member is in a position of authority that makes compliance more likely, so the other cities are wise to restrict this behavior. Most of our council members would likely never dream of making such calls. However, these acts and others makes it clear that MP needs a Code of Ethics that gives Council (and the staff) more guidance. Given Keith’s Brown Act lapse, and her prior lobbying calls, one can reasonable raise questions regarding Keith’s ability to remain objective on matters relating to the library. I think that she should resign from the Belle Haven Library Advisory Committee and excuse herself from voting on any matters related to the library. (I also think that it’s a mistake to have Council members serving on MP Commissions or Committees. Instead, they can visit as liaisons.)

  6. Just to clarify, Keith made the “lobbying-style” calls (that I describe in my comment above) before a prior council meeting that was to vote on staff’s recommendation for a new Main Library site.

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