Article updated Dec. 2 at 1:51 p.m.
San Clemente City Council members have censured their colleague, Councilwoman Laura Ferguson, for publicly criticising city government and releasing public records to the public.
After a late night meeting that stopped just short of midnight, Ferguson, who was the lone dissenter against the 3-1 censure vote, said she is considering a court challenge of the censure.
Over most of the past year, Ferguson – an outspoken conservative Republican – has served as the council’s de facto leader after former mayor Dan Bane resigned to move out of state. The council could not agree on who to appoint as the new mayor, leaving her in charge of running the meetings as mayor pro tem.
Ferguson, a longtime public information officer for the city now turned elected official, has repeatedly clashed with city staff in the public square over transparency issues.
Earlier this year, Ferguson held a press conference outside city hall to criticize then-interim city manager Robert Dunek’s decision against holding in-person city council meetings.
She also criticized city staff for putting up a fence along the beachfront as a response to the homelessness crisis, a sign that also triggered a local protest where eight people were arrested.
The fence was later taken down after threats by the OC Sheriffs’ Department to pull patrols out of the city, and Dunek was let go by the city council less than a month later after maxing out his contracted hours.
“I ran on transparency, that’s why I ran. I wanted our city to be transparent and forthcoming, and not behave like it’s a secret society at city hall. People will know the information they deem they should know,” Ferguson said in a phone call with Voice of OC after the meeting.
The censure complaint, which was brought forward by Councilwoman Kathy Ward, took issue with a variety of decisions made by Ferguson over the past two years, but specifically pointed at over half a dozen instances where she publicly criticized city staff and the city manager.
It also called into question whether or not Ferguson violated the Brown Act by releasing a poll commissioned by the city that staff had ruled could not be legally released as an attorney work product.
After suggestions by city attorney Scott Smith, council members’ final censure focused on Ferguson’s criticisms of city staff but not the city manager, who Smith said was a public official and could be criticized by council members as a First Amendment right. The censure kept the Brown Act complaints.
Censures don’t carry any consequences, but “represents the formal opinion of the city council and therefore carries weight in the public arena,” Smith said in a staff report presented at last Tuesday’s council meeting. Altogether, the process is set to cost the city at least $3,000 in legal fees.
Ferguson’s defense, presented by her attorneys Brad Malamud and Mike Winsten, was that all her comments were well within the role of a local elected official and made with full First Amendment protection, adding that the documents and information she released were not subject to the protections of the Brown Act.
The meeting swiftly turned sour, when the rest of the council voted unanimously to remove Ferguson as chair for the hearing and replace her with Councilman Gene James to oversee the discussion in the first vote of the evening.
“You’re taking an illegal vote, you’re out of order,” Ferguson said.
“Duly noted, thank you,” said Councilman Chris Hamm.
The mood did not improve from there, with multiple heated exchanges throughout the night between Ferguson and the rest of the council. At one point, the conversation broke down into a shouting match between Malamud, Hamm, and James, when James ruled that Malamud could not call witnesses to discuss the accusations against Ferguson.
Malamud claimed the city attorney had told him he would be allowed witnesses, which Smith denied approving. Malamud also said that Smith called the proceeding an administrative hearing and that it had to abide by those rules, but Smith said he just referred to it as that to clarify it would not have a consequence beyond a censure.
Both sides were granted an hour and fifteen minutes to share their opinions on the argument, opening with a half hour review by Ward of 10 complaints listed in the city’s agenda. Ward repeatedly referred to Ferguson’s Facebook page, where she regularly posts screenshots of emails with city staff.
“My first concern is that Mayor Pro Tem Ferguson has interfered in the power and duties of the city manager,” Ward said. “City employees have rights of confidentiality and they should not be discussed by councilmembers in public.”
Hamm and James backed up Ward’s comments, adding their own comments over concerns with her conduct.
“She’s alienated each and every person she’s been expected to work with from day one,” Hamm said. “When you look around and everyone around you is the problem, sometimes you have to look in the mirror.”
“To be clear, this is not a First Amendment issue. This is about protecting our city. I’m deeply troubled by the issues raised by Councilwoman Ward, we can’t just ignore them,” James said. “Transparency is great, but does not outweigh the constitutional rights of our employees.”
James repeatedly said he would hold off on moving forward with a censure if Ferguson agreed not to continue public criticisms of staff and promised to stop releasing records, but she said she would not apologize for exercising her First Amendment right.
Malamud, one of Ferguson’s two attorneys present at the meeting, repeatedly called the proceedings a “kangaroo court,” and took aim at the fact that the city’s lack of rules surrounding the censure process, claiming it would all be thrown out in court if the censure was appealed.
“This is trial by sabotage…Laura Ferguson, Mayor Pro Tem has due process rights that have been violated left and right.” Malamud said. “Criticism is not illegal, and there’s nothing in the San Clemente municipal code that outlaws criticism.”
“Tonight the city council wants to censure based on rules that do not exist.”
Public commenters were split over Ferguson’s actions, with many former city staff members and residents praising her decisions and calling for freedom of speech while others asked the council to censure her and strip her title of mayor pro-tem.
Ward did not return requests for comment after the meeting.
Looking forward, Ferguson said she would be interested in potentially overturning the censure in court but that she would have to confer with her attorneys.
“They violated my constitutional rights, and nothings’ going to change that. I don’t owe them an apology. Why should I apologize?” Ferguson said. “They never cited a law that I broke, any kind of government code I violated, and believe me…if I had broken the law, they wouldn’t be doing a censure hearing.”
Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at nbiesiada@voiceofoc.org or on Twitter @NBiesiada.