Huntington Beach City Council votes to continue discussion about outside legal counsel

The Huntington Beach City Council voted unanimously Tuesday night to continue a discussion on obtaining outside legal counsel into the new year.

After more than an hour of sometimes contentious dialogue, the council voted 7-0 to resume discussion in closed session during the next meeting on Jan. 18. City Atty. Michael Gates and his office will be involved in the discussion.

The agenda item submitted by Mayor Barbara Delgleize, Mayor Pro Tem Mike Posey and Councilman Dan Kalmick would have allowed the council to seek a second opinion after Gates in Surf City’s legal matters.

The council listened to more than 20 public comments, the vast majority of which were in favor of Gates, who was first elected in 2014 and is the only elected city attorney in Orange County. Many of the speakers also were proponents of an ongoing recall effort against five of the council members.

Several council members expressed frustration at having a contentious relationship with Gates. After the agenda item was made public late last week, Gates circulated a four-page letter on social media stating he would explore his legal actions if the item passed. He said the city charter gives his office sole responsibility for the city’s legal responsibilities, and control over any outside counsel that is hired.

The council members, however, largely disagreed with Gates’ view.

“The charter is not etched in stone, and I do not believe the allocation of authority in the charter is as clear cut as Mr. Gates says it is,” Delgleize said. “I also know that in any city, the city council is the primary authority. In the attorney-client relationship, the client should give direction and should not be threatened by its lawyer. I believe that we can define circumstances under which the city council can seek a second opinion on specialized legal advice without the approval of the city attorney.”

Section 304 (b) of the charter states that the city council “shall have control of all legal business and proceedings and all property of the legal department, and may employ other attorneys to take charge of or may contract for any prosecution, litigation or other legal matter or business.”

But Gates has cited a 1981 California Court of Appeal analysis of the charter, which states that any attorneys hired by the council would be under his supervision and have no authority to act independently.

Kalmick said he was taken aback by Gates’ very public response to the agenda item, and to him it illustrated exactly why the council needs a second opinion.

“We’re in a Looney Tunes situation here, where the person I would go to to respond to someone who threatened a lawsuit would be my city attorney, who is the person that threatened the lawsuit,” Kalmick said. “We end up in this circular argument, of someone claiming they’re both the plaintiff and the defendant. If we were to get served, how would we assert that? We would obviously need someone else representing us. If we get into a case where the city attorney wouldn’t let us do that, according to his interpretation of the charter, we’re stuck.”

Councilwoman Kim Carr said the city council is the voice of the people, not Gates, as some public speakers asserted earlier.

“I have wondered why people in this town think that we don’t support our city attorney,” she said. “He’s received a raise, he’s actually had his spending limit increased. There really isn’t anything that we haven’t given this city attorney ... But when it comes to suing the state or it comes to our housing element, that’s where it gets a little funky. We have different opinions on how to go about that.

“We need our city attorney to back us, because we back him. So if we decide not to sue the state of California, the city attorney should be silent on that, because this council has made a policy decision. And I hope that he supports us.”

The city also is appealing a July Superior Court ruling that it owes $3.5 million in attorney fees to the Kennedy Commission.

Gates said in response that he has always faithfully executed his duties as the city’s lawyer on every city council direction. He added that numerous times, he has hired outside legal experts.

“If you want more, ask for more and I’ll get it for you,” he said. “I have literally bent over backwards to try to give this council, in terms of good customer service, every single thing that they have asked for ... But what you’re proposing tonight is illegal.

“If you want a second opinion, but you’re going to acknowledge that I’m the top lawyer in the city, that’s a conflict. It doesn’t work like that ... and I’m not going to support, condone or endorse complicating our relationship more with a second opinion.”

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