By Shawn Raymundo
As one of the final acts of the current city council, it voted Monday, Nov. 23, to censure acting Mayor Laura Ferguson for “unacceptable conduct,” as she faced a litany of accusations from Councilmember Kathy Ward.
The council had met for a special meeting to deliberate the laundry list of charges Ward had brought forth that included instances of interfering with the city manager’s powers and duties, disclosing confidential information to the public and the press, and also openly criticizing city management, to name a few.
According to the city, “a censure does not levy a fine, suspension, or other penalty, but nevertheless represents the formal opinion of the City Council and, therefore, carries weight in the public arena.”
The nearly six-hour meeting concluded just before midnight in a 3-1 vote, with Ferguson dissenting. Leading up to the vote, Ferguson, who was represented by her own legal team throughout the night, characterized the perceived violations as allegations that lacked evidence.
“All they are, are allegations, because no facts have been proven. You didn’t have any findings of facts today that I could see, that broke any rule, standard or any law,” she said just before the vote. “So, this is just a big charade to embarrass me and harass me, in my opinion.”
Out of the gate, Monday night’s meeting got off to a rocky start when Ward suggested that Ferguson, who as the acting mayor chairs all council meetings, not run the discussion and deliberations, instead handing the reins over to Councilmember Gene James.
The motion, which had been backed by outgoing Councilmember Chris Hamm, was vehemently objected to by Ferguson, who challenged Ward to cite the law that allows them to remove her as the chair of the meeting.
“It’s not the policy and it’s not the law,” Ferguson said, adding: “Cite the law that allows you to do that … I’m going to chair this meeting until I’m not the acting mayor anymore.”
City Attorney Scott Smith explained that, based on his reading of meeting policies, such an action would be considered a parliamentary item that is explicitly part of a council agenda. Ferguson accused Smith of taking sides, which he disputed.
The council eventually voted, 3-1, to have James chair the censure portion of the meeting.
After getting into the crux of the censure, Ward outlined her allegations, citing several instances in which she felt Ferguson’s actions violated the city’s rules and standards. One such example was Ferguson’s decision during a September meeting to announce a potential lawsuit from former City Manager James Makshanoff.
Ferguson had made public the contents of a letter from Makshanoff’s attorney alleging claims of breach of contract, wrongful termination and retaliation against the city. Ward said that Ferguson made the announcement after Smith had advised councilors not to comment because the California Joint Powers Insurance Authority requested cooperation.
“It was inappropriate for Councilmember Ferguson to interfere with the duty of the city to cooperate with the California JPIA,” Ward said.
The initial draft of the resolution for censure stated that “Ferguson interfered with the City’s duty to cooperate with the California Joint Powers Insurance Authority (CJPIA) in connection with personnel claims made against the City and tendered to the CJPIA, thereby jeopardizing the City’s coverage.”
Ward also raised the issue of Ferguson using her city councilmember Facebook page back in May to publicly criticize then-interim City Manager Robert Dunek about fencing installed around the Pier Bowl parking lot to deter overcrowding at the beaches amid the pandemic.
“Ferguson used her Facebook page to put pressure on the city manager to reverse his order putting up this fence,” Ward said. “The city manager received many, many emails criticizing the city manager and ordering him to remove the fence when, in fact, he no longer had the authority to do so.”
Ferguson’s attorney, Brad Malamud, argued, however, that none of these instances, nor the others brought up, show a violation of the city’s laws, as they’re protected by the First Amendment.
“Those aren’t evidence. At best, it’s hearsay … there is no case. So, the public understands, what the council just did was become judge, jury and executioner,” Malamud said, later adding: “You didn’t cite a single municipal rule she violated.”
And in regard to the Makshanoff letter, Malamud cited a conversation he and Ferguson had with the CJPIA, which told them she may release the letter but would prefer she didn’t.
Smith later went over his analysis of the proposed resolution for censure, recommending that certain portions and findings cited be struck from the record based on a lack evidence and input from both sides of the censure.
One instance of this regarded the fencing issue, as Smith noted that there was quite a bit of confusion around the time because of the pandemic, as well as circumstances surrounding the council’s decisions, which were often deadlocked in 2-2 votes.
Smith advised that this specific example be deleted from the findings for censure, as the testimony and situation from the incident lacked clarity.
After revising the resolution for censure, the council decided to move forward with the reprimand. Ward had reasoned that the decision for censure wasn’t political nor meant “to go after Mayor Pro Tem Ferguson because we don’t like her.”
“There’s been clear instances that have happened that have really hindered the work of the city council and potentially caused a hostile work environment,” Ward said, before slamming Ferguson for using outside counsel as representation. “This is a reprimand or censure of colleagues to each other, and it’s just indicative of how she works with the council.”
Ward added that she hopes the censure would encourage Ferguson to work with her colleagues and prompt her to “think differently in her role as a councilmember.”
“Her power is in working with the council; it’s not in going online and saying things to the public,” she said. “It’s really working with us, and that’s how we get things done.”
Ferguson later clapped back, noting that Ward and the rest of the council had legal counsel representing them and to the tune of $3,000 to $5,000.
“Would you expect me to just show up and get tarred and feathered? I don’t think so,” Ferguson said, adding: “I came prepared. You came prepared at the taxpayers’ expense.”
The next city council meeting is scheduled for Dec. 1, when the newly elected councilmembers are expected to be seated.
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.