TUSTIN : Council Split on Paying Defense Fees

The City Council may face a standoff over whether to pay for the defense against a suit filed this week by the city clerk.

The suit, which names individual council members as well as the council as a whole and the city, alleges that Councilmen John Kelly and Earl J. Prescott violated the law by failing to approve precincts, polling places and precinct boards for the April 10 election. The suit asks that the court order the council to approve those election details.

Kelly and Prescott have asked that the city retain an attorney for their defense, but City Atty. James G. Rourke said that is a matter to be decided by the council, which is likely to deadlock. The matter will be considered at the next meeting, Rourke said.

“That is a nice twist of fate. I think it’s called irony,” Councilwoman Ursula E. Kennedy said. “You can’t help but know that we’re grinning from ear to ear, but I’m going to be fair.”

Kennedy said she could not say yet how she would vote. But Mayor Richard B. Edgar said he thinks that the city should not offer any defense against the suit, which will be heard in Superior Court on March 9.

“I would say that there is a distinct possibility that a vote to subsidize their defense would be deadlocked,” Edgar said. “It is highly probable.”

Prescott said it is ridiculous for him and Kelly to have to ask their political opponents to approve counsel for them.

“It’s inherently unfair that (opponents) can go out and hire the biggest guns in the county, Rutan & Tucker, and blow us to smithereens in court while we are required to appear . . . without an attorney,” Prescott said.

Rourke said that Kelly and Prescott can hire counsel if they like and that the city will pay for it if the court finds that they were within their rights to vote against the election details.

But, Rourke said, if the court finds that they violated their duties, then the city would not pay for their defense.

“It’s a crime under the election code to fail to perform one’s duties as a council member,” Rourke said.

“They are accusing us of committing a crime, but we are not provided the opportunity to present our side,” Prescott said. He said he and Kelly do not plan to pay for their own counsel as a matter of principle.

Late Tuesday, Kelly and Prescott proposed a compromise to end the election dispute: the councilmen said they would approve details of the April election if the ballot was limited to deciding a replacement for Councilman Ronald B. Hoesterey, who resigned.

The other two council seats up for filling on the April ballot should be decided in November, Kelly and Prescott said. The April election is scheduled to decide all three council seats.

Kelly and Prescott asked that their compromise proposal be considered at the March 5 council meeting.