By C. Jayden Smith
By a contested 3-2 decision, the San Clemente City Council on Tuesday, Oct. 18, voted to shop around for other law firms for legal services seven years into its current contract with Best, Best & Krieger.
Councilmember Laura Ferguson, who has repeatedly called for a request for proposal (RFP) to solicit alternative legal teams, was the biggest proponent for the move to look beyond BB&K, which the city has contracted with since March 2015.
“It’s time that we do an RFP and get someone new here at the city that will bill us more appropriately, not take sides, and reel in these legal costs that we have,” Ferguson said, referring to her grievances against the firm and City Attorney Scott Smith. “(We need to) simply just stop this division and start fresh with a new council coming in.”
BB&K has billed the city for more than $13 million between March 2015 and Fiscal Year 2022, according to data from the Management Partners’ June 2021 Assessment of Legal Services Report and BB&K’s Fiscal Year End Reconciliation Reports, both of which interim City Manager Sean Joyce reportedly sent to Ferguson.
Ferguson, whose term is set to expire in December and isn’t seeking reelection, said that an RFP was necessary to find options that would reduce legal costs exceeding those of other nearby cities.
Mayor Pro Tem Chris Duncan and Councilmember Kathy Ward voted against Tuesday’s motion, with Mayor Gene James, Steven Knoblock and Ferguson voting in favor of the RFP.
Duncan called the move a grave mistake that would negatively affect the city and the incoming City Council.
“I could not disagree with this process of moving forward with an RFP,” he said. “This is going to be a disaster for San Clemente. We’ve got to keep our law firm that is working to protect us from these outside forces such as the TCA (Transportation Corridor Agencies).”
According to the city’s staff report, councilmembers have reviewed BB&K’s legal fees at least seven times over the life the contract. The council last month voted to have a closed session discussion in early October over the impacts of launching an RFP.
Knoblock said Tuesday that he favored conducting an RFP to try to lower the city’s legal fees and added that he was unsure whether the city should consider hiring an in-house attorney.
“It’s always in the best interest of our citizens and our tax pocketbooks to make sure we’re getting the best bang for the buck,” he said.
During her comments, Ferguson gave a slideshow presentation that directed a series of claims at Smith. Ferguson accused him of being biased and committing code violations against her.
“I’ve experienced bias for four solid years,” she claimed. “I’m leaving council, as you all know, (so) I won’t have to endure that anymore. But it’s wrong.”
Ferguson’s allegations centered on Smith’s supposed efforts, both obscurely and overtly, to excessively bill the city, support councilmember actions against her, misrepresent truth, and disparage her and her supporters.
When given the chance to respond, Smith labeled the claims against him as an “extremely unfair” ambush, and spoke about his passion, love and pride for the city.
“My job is to defend the city against all adversaries, whether they’re (outside the city staff) or up (on the council),” said Smith. “With regard to every item that was laid before you earlier, I’m proud that the adverse party is feeling the heat of the city’s defense and my resilience and advocacy in your interest.”
In defense of Smith, Duncan said he had been a champion for the city.
James had also said that Ferguson’s previous comments about Smith’s character were not indicative of what James has previously witnessed.
“This description of Scott Smith is not the person I know,” James said.
Ferguson sued the city in 2021, alleging that the city violated the Public Records Act by denying her access to councilmembers’ emails that supposedly led to her censure in November 2020.
This past April, the council voted to appropriate $128,000 from the General Fund to cover anticipated costs in the city’s defense against the lawsuit. In court filings, the city has denied Ferguson’s allegations.
Speaking about BB&K, Ward noted how helpful the firm has been, pointing to its assistance in the city’s process of getting San Clemente’s Housing Element Update approved, as well as with other legal challenges.
Following deliberations, Duncan on Tuesday proposed to receive and file the report, allowing the city to stay with BB&K; however, that motion failed to get enough support to pass.
James, who gave the deciding vote in the motion to issue the RFP, as well as in Duncan’s failed proposal, said it’s a necessary practice to review contracts.
“For me, it boils down to good business acumen to look at your contract, regardless,” James said, adding that it was the council’s responsibility as “good stewards’ for the residents to do so.
“We’re looking at inflation, we’re looking at stagnation, we’re looking at a lot of things, and we need to be prepared for (them),” said James. “One of the things we need to do is cut our legal fees, so I’m going to be voting for this; but I’ll be very honest with you, I want BB&K to bid on this.”
Ward, who’s wrapping up her second term and also isn’t seeking reelection, recommended that the city give a few months’ time for the new council body to be seated before presenting the RFP’s results. She said any review sooner than her suggested time frame would be unfair to them.
“You don’t realize how much is going to fall by doing what we’re doing today, by doing a (certain date) and trying to ram this through in four weeks,” said Ward. “We have an election coming up. … It’s the worst timing.”
The council directed staff to issue an RFP by Nov. 18. The municipal election to fill three of the council seats will be decided on Nov. 8. The new councilmembers are expected to be sworn in to take their seats on the dais in early December.
C. Jayden Smith
C. Jayden Smith graduated from Dana Hills High in 2018 before pursuing a Bachelor’s degree in digital and broadcast journalism from the University of North Texas. After graduating in December 2020, he reported for the Salina Journal in Salina, Kansas. Jayden loves college football and bothering his black lab named Shadow.
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