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Newport council candidate sues city over eligibility dispute

Newport Beach City Council candidate Jeff Herdman is seeking a court judgment to determine his eligibility to serve as a councilman after the city clerk told him last week that he is ineligible to be seated this year because of his service on a city advisory board.

Herdman, a longtime Balboa Island resident, is running in the November election to replace termed-out Councilman Ed Selich representing District 5, which includes the island, Newport Center and a portion of Big Canyon. Also vying for the seat are community activist and businessman Mike Glenn and local businessman Lee Lowrey.

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The winner is scheduled to take over the seat in December.

Herdman filed a lawsuit against the city Friday in Orange County Superior Court, less than a week after City Clerk Leilani Brown sent a letter to Herdman's attorney stating that if Herdman wins the election, he would be ineligible to serve at that time.

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"Based upon my review of the city charter and in consultation with outside counsel, I have determined that city charter Section 710 prevents Mr. Herdman from occupying the position of city councilmember for a period of one year after his service on the Civil Service Board is complete," Brown wrote in the letter circulated July 14.

Section 710 states that no Civil Service Board member, "while a member of the board, or for a period of one year after [the person] has ceased for any reason to be a member, shall occupy or be eligible for appointment to any salaried office or employment in service of the city."

The Civil Service Board advises the City Council on personnel matters and conducts appeal hearings for city employees in disciplinary matters. The charter provision aims to prevent a Civil Service Board member from currying favor from municipal administrators for a city position based on a decision rendered by the board.

Herdman has been on the Civil Service Board since he was appointed in 2014. His term expires in June 2018.

Herdman's attorney, Mark Rosen, argues in the lawsuit that City Council members are public officers, not city employees, and that the pay council members receive is not a salary but reimbursement for expenses incurred. A council member receives $1,274 in monthly compensation; the mayor receives $1,808, according to city documents.

Rosen also argues that the rules apply to people being appointed – not elected – to a city position.

"If elected, I will not be an employee of the city, and I will certainly deny the stipend that is offered as well as the health benefit package during my first nine months or year of service on the council," Herdman said Wednesday.

The issue of Herdman's eligibility began earlier this month when Balboa Island resident Bob McCaffrey claimed in a complaint to the city that Herdman is prohibited from running in this year's election because of his position on the Civil Service Board. McCaffrey said he intends to support Lowrey in November.

Herdman said McCaffrey's allegations against him are politically motivated and aimed at eliminating him from the City Council race.

"These tactics are causing a drain on my campaign fund for legal fees, are taking away from the time I need to devote to campaigning and are also beautifully timed," Herdman said.

However, McCaffrey has said he filed the complaint because he believes everyone should follow the rules.

McCaffrey is chairman of a political action committee known as Residents for Reform, which supported "Team Newport," a slate of council candidates consisting of Diane Dixon, Kevin Muldoon, Scott Peotter and Marshall "Duffy" Duffield who swept the four available seats in the 2014 election and now constitute the council majority. McCaffrey donated funds to the slate.

Herdman has been critical of Peotter, Muldoon and Duffield since they were elected.

He has suggested in published letters to the Daily Pilot that the city request that the California Fair Political Practices Commission conduct a full audit of all the candidates in the 2014 election to examine their "independent expenditures, slate mail committees and other expenditures spent to influence the election."

In April 2015, Herdman sent a letter to the FPPC alleging that a campaign contribution Peotter received violated the Political Reform Act and city code. Peotter denied wrongdoing.

Last November, McCaffrey filed a complaint with the FPPC against Herdman, alleging that he failed to submit a mandatory form before soliciting and accepting donations for his council campaign. Herdman calls the allegation "completely false."

Though many candidates for the City Council election have begun raising campaign money, the deadline is Aug. 12 for residents to file paperwork with the city officially declaring their candidacy.

Rosen believes the city will not accept Herdman's paperwork to continue his campaign if the court does not render a decision by the August deadline.

If that happens, Herdman said, "voters will have been deprived of the opportunity to vote for a candidate that does not represent Team Newport."

Brown could not be reached for comment Wednesday.

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