Gaido Sues to Fill Irvine Council Vacancy : Politics: Third-highest vote-getter claims the seat should be hers without a special November election.

TIMES STAFF WRITER

Mary Ann Gaido, the third-highest vote-getter in the June council race, has filed a lawsuit claiming that she should immediately be appointed to fill a council seat left vacant by Sally Anne Sheridan's elevation to mayor.

The lawsuit, filed Monday in Orange County Superior Court, is the second in two years concerning the city's Measure D, an election law passed by voters in 1988 that has mired city officials in legal squabbles and cost the taxpayers $163,000 to date.

Gaido's suit challenges a provision in Measure D that allows a special election to fill an unexpired term of a council member elected mayor if at least 7% of the city's registered voters sign petitions. If no petitions are filed, the third-highest vote-getter fills the seat.

Although the city clerk last week certified 3,965 petition signatures, or 103 more than the required 7%, Gaido and her attorneys Stephen Coontz and Franklin J. Lunding claim that at least 500 of those signatures are invalid. Eliminating the questionable signatures would invalidate the petitions for a special election and make Gaido eligible to be sworn in immediately, Coontz said.

The suit also says that petitions calling for the November election were improperly worded because they do not inform signers that the vacancy could be filled without an election.

"The June election was a vote of the people, and overturning that vote has to be done in a serious manner," said Gaido, who received 11,096 votes in the June 5 election behind Barry J. Hammond's 11,629 votes and William A. (Art) Bloomer's 11,702 votes.

Despite the lawsuit, the council voted 4 to 0 to set the special council election for the Nov. 6 ballot, leaving the city with a four-member council until then. The council also voted unanimously to place a measure on the same ballot that would repeal Measure D and reverse another election law passed in 1987 that calls for the election of mayor by city voters. Sheridan defeated incumbent Larry Agran by a narrow margin last month to become the city's second directly elected mayor.

In her first action after taking office on Friday, Sheridan requested that Measure D be repealed. She has contested the law since it went into effect.

"I've never approved of the system," said Sheridan, who refused to participate in the petition drive against Gaido. "But now that it is being used I have to uphold it."

Sheridan previously had said that she wanted Gaido seated on the council rather than prolong the confusion over Measure D by holding a special election in November.

"I would not have been unhappy about that," Sheridan said in an interview before Tuesday's council meeting. "I could have worked with Mary Ann Gaido."

Gaido ran on a slate with Agran and former Councilman Cameron Cosgrove--a slate perceived as a liberal departure from Orange County's conservative politics. The new council majority of Sheridan, Hammond and Bloomer has vowed to swing the pendulum back.

But UC Berkeley urban planning professor Ray Catalano, a former Irvine councilman who often cast swing votes during his 1986 term, warned that seating another conservative council member via a special election would be a "big mistake."

"Irvine is simply not a 4-1 city," said Catalano, referring to council votes. "The outcome of the last election reflects the anger by the populace over that perceived imbalance. If there is another extreme majority you could have the same problems of political resentment and distrust. With Gaido, it would be a well-balanced council that reflects the values of a large, diverse city."

Also on Tuesday, the council decided that Coontz and Lunding, who recently completed a report on Measure D for the city, have a conflict of interest by representing Gaido in her lawsuit. According to Assistant City Atty. John Fellows, State Bar rules of conduct say that an attorney cannot represent a new client in a manner that would be adverse to a former client.

However, Coontz said an attorney can represent a client against a former client as long as he has not gained confidential information that could be used in a case against the former client. Coontz said that in reviewing Measure D, he and Lunding were dealing with public documents, and did not receive any confidential information.

Coontz represented Cosgrove in a previous lawsuit on Measure D, filed by city residents Howard Klein and Christina Bustos, shortly after the June, 1988, election, when Measure D was approved by city voters and Agran was elected mayor. Cosgrove, like Gaido, was the third highest vote-getter.

That suit claimed that Cosgrove did not have a right to complete Agran's unexpired council term because petitions were being circulated under Measure D for a special election. However, a Superior Court judge ruled that Cosgrove was sworn in before Measure D took effect and could therefore remain on the council.

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