The Los Angeles County district attorney's office has found that four City Council members did not act criminally last September when they made an appointment to the Harbor Commission against the advice of City Atty. Gordon Phillips.
The district attorney's office, investigating a claim by Mayor Barbara Doerr that the council violated the City Charter when it made the appointment, has determined that Ronald Cawdrey, John Chapman, Kay Horrell and Archie Snow acted reasonably when they appointed resident John S. Ferguson Jr. to the Harbor Commission, said Deputy Dist. Atty. Herbert Lapin in an interview.
Councilwoman Marcia Martin was absent when the council appointed Ferguson and was not included in the investigation.
Lapin said the district attorney's determination is in rough-draft form and will be released formally in December.
"We are not opening a case on it," Lapin said. "They were not acting with criminal intent. Either side could legitimately feel they were right."
Doerr, who had been sparring with the council for months over appointments to several citizen boards, claimed that each council member committed a misdemeanor when the council declared a vacancy on the Harbor Commission and then appointed Ferguson to fill it. Violations of the Charter are misdemeanors, which are punishable by a maximum of six months in jail and a $500 fine.
The feud between Doerr and the four council members centered on conflicting interpretations of Charter provisions that deal with the creation of a vacancy on city commissions. Doerr has said that she does not object to Ferguson, a geologist and history buff, who had originally applied for a position on the Library Commission. Instead, she said, she opposed the council's decision to "set its own law for the city."
In the political squabble over appointments in July, the council refused to confirm the reappointment of Greg Diete, whose term on the Harbor Commission expired at the end of June, and rejected two other nominees suggested by the mayor. Doerr contended that Diete should have remained a commissioner until she appointed his successor with council confirmation. Mayoral appointments in Redondo Beach require confirmation by the council.
Appointing Power Assumed
The four council members, for their part, contended that the Charter allows them to assume the mayor's appointment powers if a new commissioner has not been appointed and confirmed 60 days after an incumbent commissioner's term has expired. Because Diete's term expired June 30, the mayor lost her power of appointment on Aug. 30, they said. They appointed Ferguson on Sept. 16.
Without such an interpretation, the council members argued, incumbent commissioners could serve indefinitely, their terms never really ending until the mayor decided to replace them. Under the council's interpretation, a commissioner who continues to serve after the end of his term is acting only as a caretaker for a vacant seat.
But in an opinion written in August, Phillips disagreed with the council's interpretation. Phillips wrote in the opinion that a vacancy occurs when a commissioner dies, resigns or moves out of town but not simply when his term expires. Phillips based much of his opinion on a Charter amendment on commission appointments that was approved by voters last year as Proposition FF.
Phillips wrote that if an office is declared vacant at the expiration of the term, "one or more offices could be vacant over an extended period of time--'during prolonged appointment discussions'--and result in 'shorthanded' commissions, a result which was clearly not intended by the voters in adopting Proposition FF."
Open to Interpretation
In its determination, the district attorney's office sided with the City Council because the Charter provisions can be reasonably interpreted either way, Lapin said.
"The city attorney's position may be legally sound, but the City Council people who decided not to pay attention were not acting with any criminal intent, and they were not totally out of line," he said. "There are conflicting sections in the Charter.
"The city attorney reads it one way, and the City Council reads it another way."
Doerr, who said Wednesday that she had not been notified of the district attorney's decision, said the question should be put on the ballot next year for voters to decide.
"I can understand that there might be different interpretations, but I don't feel that the legal interpretation should come from the City Council," she said. "We have an elected city attorney and we should abide by his legal opinion. If we want to change the charter, then it should go to a vote of the people."
Cawdrey, Chapman, Horrell and Snow, when informed of Lapin's remarks, welcomed the support of the district attorney's office.
"There was no intent to violate anything," Snow said. "It was an attempt at good government."