The battle between San Clemente Councilwoman Laura Ferguson and city management is heating up again, this time over whether she can review confidential records.
Last month, Ferguson said when she tried to review a confidential personnel record, city staff refused to let her look at it alone, sitting an attorney from the city’s contracted law firm Best Best & Krieger to watch her as she reviewed the records.
It’s something no other council member has to deal with, according to Ferguson.
“I asked the attorney who was present why she was there,” Ferguson said. “I asked them to cite a state law and she would not do it. She just said the city manager told her to be there.”
City manager Erik Sund declined to comment for this article, citing the personnel issue.
“The city doesn’t comment on personnel related matters, they’re confidential,” Sund said.
David Loy, Legal Director for the First Amendment Coalition, said while the city is allowed to protect confidential documents, it’s hard to say whether or not this situation merits an attorney in the room without knowing what’s in the records.
“It is unusual, I’ve never heard of such a thing before,” Loy said in a phone interview.
“I think they’re allowed to take appropriate precautions against city staff or city officials disclosing genuinely privileged information,” Loy continued. “Some personnel files are exempt and some are not, it depends on the level and rank of the staff involved.”
That disagreement is one of many that have come to define Ferguson’s first term in office, which has repeatedly seen her at odds with city staff since she was elected.
Ferguson’s relationships with the city go back long before she was elected, having worked in the city as a public information officer for 18 years before she left in November 2017.
When she was elected in 2018, she swore to stand as the transparency candidate, focused on opening up access to public records at city hall.
“WE NEED TO INCREASE TRANSPARENCY IN OUR CITY GOVERNMENT. TO DO OTHERWISE IS UNDEMOCRATIC AND COSTLY TO TAXPAYERS,” Ferguson wrote in a Facebook post on October 1, 2018. “It is past time that we move from operating in secrecy to encouraging open access to information.”
But in her pursuit of public access, she’s rubbed many city staffers the wrong way, who have filed multiple HR complaints against her and alleged she’s on the warpath against city leadership she disliked when she worked there.
She was also censured by her council colleagues in 2020 after releasing a poll city staff had deemed confidential and repeatedly calling out the city as non transparent on her Facebook page.
[Read: San Clemente City Council Censures One Of Their Own For Speaking Out Against City Staff]
But the censure didn’t stop Ferguson, who continued calling out the city and told her critics on the council to sue her if they thought she violated any laws.
“I don’t owe them an apology. Why should I apologize?” Ferguson said in an interview on the night of her censure. “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.”
After her censure, the city implemented a new software that required council members to acknowledge they were reviewing confidential information that could not be leaked, something Ferguson refused to sign.
For nearly a year, she was blocked from accessing closed session records, until November 2021 when she came to an agreement with the city that let her access the records without signing the waiver.
Following Ferguson’s censure and the HR complaints, the city also commissioned an independent investigation into Ferguson’s conduct last year, offering a rare window into how city staff deal with council members they disagree with.
The report was created by Kristine Exton, a lawyer who specializes in workplace investigations for the law firm Norman A. Traub & Associates, and the city released it earlier this year.
While the report ultimately found that Ferguson had been “accusatory, condescending, demeaning and disrespectful,” to city staff, there was no evidence she’d broken any laws, and Exton did not include harassment or abusive conduct as a charge because Ferguson’s actions didn’t fit the legal definition of those words.
The report quoted exclusively from city staff Exton identified as biased against Ferguson, but claimed they were all credible due to documented evidence and that they kept their biases “in check.”
Ferguson refused to be interviewed as part of the investigation.
The staff members quoted in the report included Megan Jimenez, the city’s primary handler of public records requests, Kade Boisseranc, the city staff union president, and City Clerk Joanne Baade.
All three accused Ferguson of harassing city staff, with Boisseranc claiming she had a vendetta against city management and that her “constant talk about lack of transparency is tiresome.”
Jimenez pointed to a specific email Ferguson sent her where she told Jimenez she didn’t want to speak with her in the future on records requests.
“Is someone at city hall instructing you to harass me? I said I did not have any responsive records according to the key subject matter you provided,” Ferguson said to Jimenez in an email. “This is a waste of my time. In the future, I prefer to communicate with Joanne Baade on PRA requests.”
Jimenez said Ferguson’s conduct made her feel “defeated and harassed.”
“My personal ethics are important to me … Everything is just attack and assumptions made,” she said in the report. “To be hammered so publicly has been very hard.”
But in that same report, Jimenez also said there were records the city chose to not give Ferguson because she was looking at suing them over her censure.
“Some documents were not produced because of the threat of litigation and the deliberative process. Withholding these documents for these reasons led to allegations, made via Facebook and the newspaper, that the City was illegally withholding documents,” the report stated.
Staff also questioned why she repeatedly complained to reporters about the work of city staff on public records requests and other transparency issues.
“Why not come to me?” Baade was quoted in the report. “Why are the newspapers involved?”
Exton stated in her report that Ferguson’s conduct had a negative impact on Jimenez, she couldn’t use the term “harassment,” to describe it because it didn’t rise to the legal level of harassment.
Exton also said she couldn’t qualify Ferguson’s work as workplace bullying because the city has determined that as a council member, she is not a city employee.
Ferguson criticized the report as a “hit piece” on her work at the city and violated the city’s personnel policy, adding she “had nothing against,” Jimenez and had never spoken with her outside of email.
“There is no provision in the policy or the SC municipal code to give the city manager authority to hire investigators to investigate councilmembers and city employees without a lawsuit,” Ferguson said in a text message. “This lengthy investigative report outside the scope of services was done to attack, embarrass, and shame me.”
Noah Biesiada is a Voice of OC Reporter and corps member with Report for America, a Groundtruth initiative. Contact him at firstname.lastname@example.org or on Twitter @NBiesiada.
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