City attorney turmoil requires bold action

Doug Sutton

It seems reasonable that any recommendation begin with an

understanding of what happened the night of Sept. 9, 2002. This is

tough because our present, and previous, City Council members have

done their darnedest to cloak everything about that meeting under a

veil of secrecy. I say veil because their need for secrecy didn’t

stop individual council members from repeatedly commenting in public

on their charges.

Let’s ignore for the moment the rumors that started circulating

immediately after the council’s calamitous night of carnage and focus

on what we do know.

First, we know that on Sept. 9, 2002, the Costa Mesa City Council

voted 5 to 0, in a closed session, to suspend our highly respected

City Attorney -- with 17 years of city service -- Jerry Scheer.

Additionally, it suspended our assistant city attorney, who didn’t

even work for the council.

Second, we’ve learned from Scheer’s legal filing he notified both

our city manager and our then mayor, Karen Robinson, days before the

meeting that “such a session was not permissible under the Brown

Act.” We also know that neither the city manager, nor an outside

attorney representing our city interest, attended the meeting so the

city was without advice and legal counsel to protect the city. (I’m

no lawyer, but my guess is it would have been unethical for Robinson

to offer legal opinion in that meeting, and I believe she’s way too

smart for that.)

Third, we know our assistant city attorney, Tom Wood, was soon

reinstated as the acting city attorney and in his first comments he

said that first closed council session violated the Brown Act. I

infer from his quick reinstatement, and the fact that he’s still

serving as the acting city attorney, that the council was not

responding to an emergency that night. So, I expect it could be

easily argued that since the meeting was held in violation of the

Brown Act, no one should have been suspended at that meeting.

Fourth, Scheer personally names in his lawsuit only four of the

five council members who were serving at that time, charging them

with conduct that was “malicious, fraudulent, and, or oppressive, and

done with a willful and conscious disregard for plaintiff’s rights.”

He adds that the defendants made “statements about plaintiff which

were false ...” to the news media, and that those statements were

“spoken by the defendants with malice....” So, I think we can assume

both that someone (Councilman Chris Steel -- not named in the

lawsuit) on the council had unsuccessfully tried to slow this thing

down and that Scheer’s charges are very serious.

I’ve been asking the council about this issue for 15 months and I

know enough to say this whole thing stinks. It’s obvious to me the

present council agrees with me on this. A few months ago, it voted 5

to 0 (note that a majority three of five were not on the council in

September 2002 and are not personally charged in Scheer’s lawsuit) to

accept the settlement and pay close to $1 million to make this mess

go away. Since Costa Mesa rarely (if ever) settles lawsuits this

early in the process, why do so now?

This raises another question. Why do Costa Mesa council members

recuse themselves from participating and voting on the most trivial

issues within 500 feet of their homes, which might affect their

property values, but participate and vote to have the city settle a

huge lawsuit in which they are personally charged with serious

offenses?

Hard as it to believe, the $750,000 that the council tried to

spend to clean up this mess might well be of secondary importance to

all of us. If the council initiated some kind of a Machiavellian plot

of revenge to oust a long and trusted senior city staff member, we

should be asking how our city should be restructured. But, the Daily

Pilot asked the question “What should we do about the settlement?” so

here are my recommendations:

The two sitting council members, whom Scheer personally charged,

Mayor Gary Monahan and Councilwoman Libby Cowan, should immediately

recuse themselves from participating further in this matter. Conflict

of interest considerations make it impossible for residents to know

whether they’re acting in the city’s best interest or their own.

Their unprofessional behavior in this matter to this point stops me

from giving them any more benefit of the doubt.

The actions of our three remaining council members indicate they

are not up to the task. Costa Mesa needs leadership that’s not afraid

to say, “We made a terrible mistake,” and acts for the best interest

of city residents and taxpayers to ensure a fair distribution of

costs. That means whether the previous council members named in the

lawsuit committed “fraud” and acted with “malice” to oust Scheer --

or whether they were just plain stupid and inept -- our present

council members failed us all miserably when they assigned all the

cost to us and did nothing to insure we won’t be subject to similar

council behavior again.

Present council members not charged by Scheer should immediately

vote to assign our esteemed city manager, Alan Roeder, to instruct

our outside attorney (or select a different one if he chooses) to

reassess the merit of the city’s case against Scheer and demand that

any course of action be focused upon getting Costa Mesa residents

substantive benefit for the amount we’re spending.

The council and the city must agree in advance to accept the

recommendation of Roeder’s appointee, whether it’s to settle with

Scheer (separately or inclusively with those personally charged), to

go to trial (separately or inclusively with those personally

charged), or to ask those charged, who are still sitting on council,

to resign. My personal preference would be to see Costa Mesa continue

the case through deposition. Having watched our previous council, I

thoroughly believe depositions would quickly get us to the heart of

the matter.

Lastly, if Roeder’s appointee decides it’s in the best interest of

the city to separate the city’s response from those personally

charged, the city should refuse to pay for the defense of those

personally charged. And, should Roeder’s appointee decide council’s

initial charge against Scheer was not only improperly executed but

was without foundation, I’d like him to initiate whatever process is

warranted to discourage a repeat of anything like this.

What’s most important is that Costa Mesa residents get a

commensurate benefit for the cost. This was a travesty and is an

extremely bitter pill for Costa Mesa to swallow, but one our council

created and one we must learn from and deal with responsibly before

we move on.

* DOUG SUTTON is a Costa Mesa resident.