By C. Jayden Smith
San Clemente City Council voted Tuesday, April 19, to appropriate $128,000 from the General Fund to cover anticipated costs in the city’s defense against a lawsuit filed by Councilmember Laura Ferguson.
The vote tally was 3-1-1, with Councilmember Steve Knoblock as the lone opposing vote and Ferguson recusing herself from the discussion at the recommendation of Scott Smith, the city attorney.
Ferguson, in her September 2021 complaint, accused the city of violating the Public Records Act by denying her request to access to fellow councilmembers’ emails—communications that she believes includes the plans to censure her back in November 2020.
In the city’s denial to turn over the records, it’s cited attorney-client privilege and deliberative process exemptions—a California doctrine that protects documents containing an agency’s deliberations and decision-making discussions from being disclosed.
City Manager Erik Sund explained that the designation of fees was listed on the agenda as standard procedure for a legal matter exceeding $25,000.
Ferguson, who spoke as a member of the public audience Tuesday night, said that the city should not have had to spend anything at all if it had made available to her the communications she believed were public.
“Share it all with the public,” she said. “I won’t be embarrassed, but you can’t hide documents because you will be embarrassed; the law doesn’t cover you for that. Please, stop the waste of taxpayer dollars and end this now.”
Currently, the city is working through disputes in the discovery process before it can move on to the next step, in which it will meet with Ferguson’s legal counsel, and seek the court’s discretion, according to Smith. The approved appropriation will cover legal fees through the completion of a trial.
Smith also confirmed that there has been discussion of settlement options, of which Knoblock wanted further information after noticing it had been listed on the agenda report.
“When there’s a lawsuit, if there’s a discussion of settlement, that could solve the money (problem) and save $100,000-plus in fees,” Knoblock said.
However, the settlement conversations have not resulted in a tangible conclusion yet.
As the city has already turned over documents under the deliberative process, Smith said, the remaining records are protected by attorney-client privilege.
Mayor Gene James on Tuesday said other attorneys with whom he’s spoken have firmly opposed releasing the documents. Though, he added, he wants to find a solution to somewhat appease Ferguson.
Knoblock responded, saying that he hasn’t seen the withheld records and would like the council to review them before approving the fees, to see whether the documents could possibly be disclosed.
James asked if Knoblock would support him in removing Smith and Best, Best & Krieger, the city’s contractor for attorney services, from their discussion and hiring a third-party advisor to walk them through, to which Knoblock said the proposition made sense.
Mayor Pro Tem Chris Duncan argued that because all of the documents are under attorney-client privilege, the city can’t turn them over regardless of their content. Additionally, the action of working with an advisor completely differed from the designation of fees on their agenda, which Duncan believed they should fully fund in support of their legal team.
“I think what (James proposed) is not a substitution for this, we’ve got to approve this, absolutely,” Duncan said. “The fact that we’re even debating whether we should pay for our defense in this case is not something we should be getting into.”
Councilmember Kathy Ward questioned recusing BB&K from the process of utilizing a third party, since BB&K facilitates the city getting a second opinion.
“In order for us to move forward and have the confidence of the people on this, I think we have to take this extraordinary measure and select a third party to review the documents, then review the documents with us and confirm whether this is legitimate,” James said in response.
Knoblock made a substitute motion to hire a neutral municipal law expert to do what James suggested, have the council meet in closed session to decide whether to disclose the documents, and ask the BB&K team to stand down in the meantime before approving any litigation fees. The motion did not receive a second.
Along with Ward’s ‘yes’ vote for the appropriation, she reasoned that the council needed to protect its residents and fund against upcoming litigation from an opponent she claimed had not worked with the city and was driving the petition.
“It’s not going to mean that it’s going to get paid out, but it’s up to the plaintiff to change this,” Ward said. “We are duty-bound to defend the city.”
A case management conference hearing over the lawsuit has been scheduled for Aug. 15.
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.