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By Shawn Raymundo
A so-called “loyalty oath” that councilmembers have recently been required to agree to before reviewing confidential documents will soon be eliminated after the council voted during a special session on Monday, March 1, to amend the controversial policy.
In unanimous votes, the council directed city staff to draft a pair of policy amendments to first iron out language regarding how agenda items are brought forth for discussion, and, secondly, rescind the requirement that councilors must sign an agreement promising not to release confidential records prior to accessing them.
“I think the government code makes clear that any elected official is entitled to receive confidential documents,” said Councilmember Steven Knoblock, who proposed the removal of the pledge, citing government code that already prohibits them from releasing such records to the public.
“I just think it’s inappropriate to have any elected official sign any indemnity agreement or any agreement which the government code currently requires of every elected official,” he said. “The standard is there.”
The council had approved the implementation of the policy along with the installation of new software to access the documents in a 3-1 vote in November—the same month Councilmember Laura Ferguson was censured for “unacceptable conduct,” including releasing the results from a city-sanctioned survey to the San Clemente Times.
“This was created to muzzle me, so I wouldn’t have information and I wouldn’t give that information to the public,” Ferguson said on Monday night. “Political bodies can’t just keep things secret and call them confidential when they don’t want people to know about it.”
Ferguson, the sole no vote in November who has not used the new software system, called the practice “illegal and unnecessary,” noting that as an elected official, the law gives her and her colleagues the authority to access those documents when they’re available.
“The law allows me to have any documents I want and at any time, if they’re available,” she said, adding: “But I’m being denied documents, confidential documents. It started with the resumes when we started interviewing candidates (for the city manager position in January).”
According to interim City Manager Erik Sund, the software, costing the city approximately $3,000 a year, provides primarily confidential distribution of documents, and is similarly used by other government entities including the Transportation Corridor Agencies.
Knoblock explained that for councilmembers to review the records, they first need to agree to the software company’s indemnity clause and then they have to agree with the city’s prepared statement, or “loyalty oath,” that they won’t publicize the documents.
Sund said that while the council couldn’t change the company’s indemnity clause, it could amend the language of the non-disclosure agreement. City Attorney Scott Smith noted that councilors have had the option to continue receiving the documents in paper format, with the caveat that they still sign the NDA.
Knoblock proposed that the city eliminate the agreement, instead attaching a cover sheet, or government warning, to the documents, explicitly stating that it’s unlawful to disclose the records to anyone not authorized to view them.
“I totally concur with Councilmember Knoblock,” Mayor Pro Tem Gene James said. “Let’s get around this; let’s get this behind us and get Laura the documents she needs.”
When the council meets for its March 16 meeting, city staff will present a draft of the amended policy to be formally approved, as well as a proposed change meant to clarify the council’s procedure when it comes to agendizing an item for discussion.
The council voted more than a year ago to reduce the number of member votes needed to place a proposed item on an agenda from three to two. Over the past few council meetings, there has been some confusion over where those topics would be placed on the agenda and how many votes are needed to not only agendize something, but have city staff prepare a report.
Under the latest amendment, which will also come back in the late March meeting, any topic that has been proposed and seconded will be brought back for discussion and consideration under the council agenda’s “new business” section, where it will also delineate the sponsor of the proposal.
The council on Monday had also discussed a proposal to add confidential minutes to closed- session discussions—a practice that the city had previously employed until about five years ago, according to city officials.
Knoblock argued in favor of the idea, calling it a practice in transparency and standard record keeping, while noting that privileged information discussed in closed session would still remain confidential.
“We have a policy of truth and transparency; we shouldn’t be hiding anything,” he said. “So I think if we err at all, we should err on the side of transparency, honesty and disclosure. Anything that truly needs to not be disclosed will remain confidential.”
The majority of the council, however, expressed concern that recording minutes during closed session makes them more hesitant to freely express their thoughts and viewpoints if they know the discussion is going to be memorialized.
There was also the concern that such minutes could be discoverable in litigation.
Smith, who stressed that he saw the merits in both sides of the argument, explained that while he wasn’t worried about a litigant gaining access to those minutes, as they’re protected, his concern lies with the cost in fighting to protect them.
“I’m not worried about the ultimate outcome, I’m a little worried about the ultimate expense in getting there,” he said.
That proposal failed, 3-2, with only Knoblock and Ferguson voting in favor of it.
Shawn Raymundo is the city editor for the San Clemente Times. He graduated from Arizona State University with a bachelor’s degree in Global Studies. Before joining Picket Fence Media, he worked as the government accountability reporter for the Pacific Daily News in the U.S. territory of Guam. Follow him on Twitter @ShawnzyTsunami and follow San Clemente Times @SCTimesNews.