Questions are mounting over how Fullerton’s City Council decided to authorize lawsuit seeking a publication gag against a resident and the blog he writes for.
City Councilman Bruce Whitaker disputes a reportedly unanimous September city council vote in closed session where city leaders decided to sue resident blogger Joshua Ferguson.
“If there was a formal authorization vote, why was there no reporting out that evening? That’s a requirement, it’s not optional,” said Whitaker in a Nov. 15 phone interview.
City Council members are expected to discuss the lawsuit today in closed session.
Fullerton attorneys were able to get an Orange County Superior Court judge to bar Ferguson and the blog from publishing any more secret city hall documents Oct. 25.
But Ferguson appealed to the Fourth District Court of Appeal and it blocked that order Nov.7 until it issues a formal ruling.
The Sept. 17 meeting, when the whole Council allegedly voted to sue Ferguson for obtaining and publishing secret city hall documents, wasn’t recorded the way Whitaker remembers it happening.
“That’s been the challenge because I really can’t give a play-by-play from closed session,” Whitaker said. “I did not vote to authorize such (the lawsuit). I was there. It wasn’t like I wasn’t at that closed session. I was there.”
At the Nov. 5 meeting, City Attorney Dick Jones announced publicly that councilmembers voted unanimously to file the lawsuit against Ferguson and the blog.
“In an effort to clarify any Brown Act violations, the fact that City Council on Sept. 17, 2019, met on a motion made by Mayor (Jesus) Silva and seconded Mr. (Ahmad) Zahra, on a 5-0 vote, the City Council approved the filing of a writ to seek a temporary restraining order against the main defendants,” Jones said.
While Whitaker was reluctant to give details about what happened during that closed session meeting, he did say that, generally speaking, the City Council sometimes discusses items in closed session and provides direction to city staff.
“We talk in terms of closed session items often providing direction. We’re giving staff some kind of idea where council is without taking a formal vote. And that’s not uncommon,” Whitaker said.
“There was no reporting out that evening (Sept. 17) after our closed session and had there been a formal vote authorizing any of this action, there would have been reporting out. The fact there wasn’t one is my best proof I didn’t vote for that,” Whitaker said.
“So I’d like to see people try to beat back on the city and the other four Councilmembers try to explain that,” Whitaker said.
The Council majority doubled down its legal efforts against Ferguson and the blog at the Nov. 5 meeting also, when it voted 4-1 to continue the lawsuit. Whitaker dissented.
Jones, the city attorney, said the Council did vote to sue Ferguson and seek the publication gag Sept. 17. Jones noted that he wasn’t at that meeting and got the information from deputy city attorneys.
He said Whitaker may have been confused over what a writ is, which is essentially a lawsuit.
“I think the confusion — the writ was actually involved filing of the lawsuit. That’s my impression of the situation,” Jones told Voice of OC Nov. 18.
Jones also said he wasn’t sure why the alleged Sept. 17 closed session vote wasn’t reported, but pointed to the Nov. 5 meeting when it was reported out and the Council’s 4-1 vote to continue the lawsuit.
Not so fast, said Whitaker in a Nov. 18 follow up interview.
“I don’t remember any discussion of a writ. Everything was about a temporary restraining order (publication gag),” said Whitaker of the Sept. 17 meeting. “I haven’t encountered this before and I’ve been at this for a while.”
He continued, “I’m not an attorney, but I do understand what we’re doing with our actions and everything — I’ve never had to go back for remedial training on anything here.”
Whitaker said the deputy city attorneys in the room won’t budge from their positions.
“And now they say the official authorizing vote happened on that date (Sept. 17), that’s what I believe is happening here. If they got other hired attorneys who will attest to what they want them attest to, I’m not sure what that’s worth. They do what they’re paid to do,” Whitaker said. “None of the other four councilmembers have refuted the fact that I said I didn’t vote in the positive on that.”
Councilwoman Jan Flory, in a previous interview, said the Council’s been advised to not talk about the issue.
“We’ve been advised not to discuss this because most everything we’re learning is through closed session,” Flory said Nov. 8.
She couldn’t be reached for updated comment before publication of this story.
Councilwoman Jennifer Fitzgerald said she couldn’t comment on the lawsuit Nov. 8. Mayor Jesus Silva and Councilman Ahmad Zahra haven’t returned calls seeking comment.
“I don’t know what I can do in closed session [today], because if they’re going to misrepresent what’s going on, it’s not in my best interest to be there. But then it will look like I’m avoiding my responsibilities,” Whitaker said.
Media attorney Kelly Aviles, who represents Ferguson and the blog, suspects the city backtracked its closed session vote so it their legal action doesn’t look like a retaliatory lawsuit against Ferguson for a public records lawsuit he filed a week before the Oct. 25 publishing gag order.
“It clearly appears that they never took a vote to actually decide to sue. What they did was talk about things. And as soon as we filed the [public records] lawsuit, they then decided that they were going to file the lawsuit and claim — at one of those meetings they talked about it — they voted to file the lawsuit,” Aviles said. “The evidence doesn’t support that whatsoever.”
She continued, “It doesn’t even matter. Because even if they voted to authorize a lawsuit, they waited to file until we filed our [public records] lawsuit. The timing is so transparent that you can’t get around it any other way.”
“My guess is, they never actually took that vote. I don’t think they ever authorized it. But picking between the two evils, they decided to come out and say we just never disclosed that we authorized this lawsuit,” Aviles said.
The First Amendment Coalition, a Bay Area-based free speech advocacy group, is closely watching the case.
“One of the things that’s highly irregular here and disturbing is the fact that a temporary restraining order (publishing gag) was issued at all. The fact that the city sought an order that amounts to an unconstitutional prior restraint is something — fortunately — you don’t see everyday,” said David Snyder, executive director of the Coalition.
Aviles filed an anti-Strategic Lawsuit Against Public Participation (SLAPP) motion against the city for its lawsuit against Ferguson. SLAPP lawsuits are usually used to silence critics through drawn-out litigation.
“It was meeting after meeting they didn’t disclose it. It wasn’t just like they forgot. It was a ruse to make it appear the city voted to take legal action before the [records] lawsuit was filed in order to make the argument that this lawsuit was not in retaliation in order to avoid the SLAPP lawsuit,” she said.
The city lawsuit came within a week of Ferguson suing the city for allegedly failing to provide police misconduct records under the new statewide police records disclosure law, SB 1421. City attorneys maintain Ferguson and the blog broke federal and state computer privacy laws when they accessed the Dropbox account, a cloud-based storage service.
The blog caught the city’s attention in June when it began publishing some of the alleged secret documents in June, including an investigation detailing how former City Manager Joe Felz got a ride home from police after drinking and driving and crashing his car in 2016. The city sent a cease and desist letter in June and the blog refused to comply with it.
The blog also published a draft agreement June 11 between the city and former Lt. Kathryn Hamel to halt at least one internal affairs investigation if she resigned from the department, in an effort to shield the records from a new state disclosure law that allows the public to see select police misconduct records.
The First Amendment advocacy group Reporters’ Committee for Freedom of the Press have waded into the legal battle after an Orange County Superior Court judge barred Ferguson and the blog from publishing and distributing the secret city hall documents. It filed court briefs urging the Fourth District Court of Appeal to block the publication gag.
Superior Court judge Thomas Delaney ordered Ferguson and the blog Oct. 25 to stop publishing the documents and granted Fullerton city attorneys’ request to have a court-appointed computer specialist look through their private computers.
Although the appellate court temporarily blocked the publication and distribution gag, it didn’t say if it’s considering other parts of Delaney’s order, like a potential search of private computers.
“Right now it doesn’t look like they’re going to deal with the whole thing,” Aviles said.
Meanwhile, the Superior Court case has changed hands and Judge Richard Lee will now preside over the case.
Hearings have been delayed until February, according to the Superior Court website.
Aviles said the rest of Delaney’s order, which still hangs over Ferguson’s head, has serious implications.
“It chills the flow of information and therefore the reporting,” Aviles said. “The idea that a court is threatening to go through your news organization’s files is enough to keep people from contacting you.”
“That in and of itself creates a chilling effect.”
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.