LOCAL ELECTIONS / IRVINE CITY COUNCIL : Court Orders Special Election to Fill Seat : Even though the state appeals court refuses to seat Mary Ann Gaido on the City Council, it admits it doubts the constitutionality of the city’s election codes and calls the petition a ‘mini-recall.’

A state appeals court on Thursday refused to seat Mary Ann Gaido on the Irvine City Council and instead ordered that the vacant council seat be filled by a special election on Nov. 6.

In a unanimous ruling, three justices of the 4th District Court of Appeal overturned an Orange County Superior Court judge’s decision in August requiring that the Irvine council appoint Gaido to fill the council seat vacated in June when Sally Anne Sheridan was elected mayor.

Gaido said Thursday evening that she had not talked to her attorneys about the appellate court ruling and had not decided whether to file an appeal with the state Supreme Court. However, she said, she may try to run as a write-in candidate against the five people on the ballot.

“My phone’s been ringing off the hook by supporters to be a write-in candidate in the November election,” Gaido said. “I’m giving that serious consideration.”

Gaido, 48, had been fighting for the council seat since July, when new council members were sworn into office following the June 5 election. Gaido placed third in that election for two council seats and the mayor’s post.

Under city election codes, Gaido was to have automatically filled the seat vacated by Sheridan’s elevation to mayor. The same election codes, however, allow for a special election to fill a vacant seat if at least 7% of the city’s voters sign a petition.

A citizens group formed immediately after the June election and gathered enough signatures to call for the special election, shutting Gaido off from the council seat.

In turn, Gaido sued the city over the wording on the petition. The petition mentioned only that a vacancy existed on the council. It did not say that Gaido could automatically be appointed to fill the seat.

Superior Court Judge Eileen C. Moore ruled Aug. 31 that the petition was indeed misleading and that signers might not have known that an election was unnecessary to fill the council seat.

Justice Edward J. Wallin, who wrote Thursday’s appellate opinion, said that justices have grave doubts about the constitutionality of some aspects of the city’s election codes. The petition for the special election gave Gaido’s opponents an advantage by not telling signers that she would have assumed office automatically, he wrote.

In effect, the petition was a “mini-recall” of Gaido without telling signers of that fact, Wallin said.

In fact, he said, Irvine’s entire election system that creates the possibility of seating three council members while allowing voters to choose only two of them is of “dubious constitutionality.” However, since Gaido did not attack the constitutionality of Irvine’s law in Superior Court, the appeals court upheld its validity and refused to order Gaido seated.

“Notwithstanding our misgivings concerning the petition ordinance, this matter reaches us . . . with insufficient time to fashion a reasonable remedy,” Wallin wrote. “Under such circumstances, the greater evil would be to disenfranchise the electorate.”

The sections of Irvine’s election codes outlining how to fill a council seat if a council member resigned to become mayor has been criticized by attorneys and others. The sections were approved by voters in 1987 and as Measure D in 1988 as part of the system creating the directly elected mayoral post. Measure D established the petition process.

In 1988, the sections prompted a drawn-out lawsuit when Cameron Cosgrove, who was first runner-up in the council election, took a seat vacated by Larry Agran, who was elected mayor. Under Measure D, voters signed a petition calling for a special election, but a judge ruled that Measure D had not yet taken effect when Cosgrove took his oath of office.

The city spent more than $150,000 defending Cosgrove in court and in hiring two attorneys to study Measure D for flaws. Although the attorneys made recommendations this summer to repair Measure D, the council voted instead to place Measure E on the Nov. 6 ballot. If approved, it would repeal Measure D, along with the entire section creating the city’s directly elected mayoral process.

City Atty. John L. Fellows said that if voters reject Measure E and vote to keep the directly elected mayor’s position, he will suggest the city clean up the legal problems in Measure D.

“The (appeals) court thinks it is a little bit misleading,” Fellows said.

With the special election looming, the starting gates are open for the five candidates to begin 2 1/2 weeks of campaigning.

Michael Tague, 40, an assistant principal at Irvine High School, said he called a campaign strategy meeting with supporters Thursday night to plot a fast campaign.

“With a two-week election process . . . there’s not a lot of time, so it’s going to require a lot of one-on-one, knocking on doors,” Tague said.

The only candidate who began an active campaign before Thursday’s court decision was Bill Vardoulis, who took out several small advertisements in a weekly Irvine newspaper. Vardoulis, 51, is considered the front-runner in the campaign because of his name recognition. He served on the City Council from 1976 to 1984.

Other candidates in the race are Carol Yocum, 52, a former planning commissioner; Albert E. Nasser, 72, a semi-retired attorney, and Genovica Niculescu-Balteanu, 59, a mechanical engineer who is also running as a write-in candidate for governor in the November election.

IRVINE CITY COUNCIL

These are the candidates running for an open seat on the Irvine City Council in a special election Nov. 6. The vacancy resulted when councilmember Sally Anne Sheridan was elected mayor in June.

Albert E. Nasser

Age: 72

Occupation: Semi-active attorney

Background: Irvine resident for 11 years; ran unsuccessfully for board of Irvine Ranch Water District in 1986 and 1988 and for City Council in June.

Issues: Wants to establish a task force to help set ethical guidelines for elected and appointed city officials, including campaign spending limits; wants to work with large landowners to limit city’s growth, perhaps having the city purchase more land for use as permanent open space.

Genovica Niculescu-Balteanu

Age: 59

Occupation: Mechanical engineer

Background: Irvine resident for two years; ran in June as write-in candidate for Republican nomination for governor and is seeking write-in votes for November’s gubernatorial race as an independent candidate; immigrated from Romania in 1977.

Issues: Believes she has solutions for all the world’s economic, drug and educational problems and would like to start implementing them locally; believes she will stop growth in the city by persuading the Irvine Co. to halt all future building.

Michael Tague

Age: 40

Occupation: Assistant principal at Irvine High School

Background: Irvine resident for 15 years; began at Irvine High in 1976 as a teacher; holds master’s degree in biochemistry.

Issues: Advocates slowing down growth by buying land, via a bond measure, and turning some sites into parks and leasing others to farmers to maintain a tie to city’s agricultural past; opposes dense “urban village” proposed for the Irvine Business Complex; believes city should maintain its tradition of providing community service programs, child care and environmental programs.

Bill Vardoulis

Age: 51

Occupation: Vice president of Church Engineering in Irvine

Background: Irvine resident for 22 years; served on the committee that drafted the city charter; served two terms on the City Council ending in 1984; member of city’s Transportation Commission.

Issues: Opposes dense “urban village” proposed for the Irvine Business Complex; believes market should define what is built there, not city planners; wants to reduce spending because he believes recession is on the horizon; wants to ensure city’s roads, sewers and other services are in place before allowing new development.

Carol Yocum

Age: 52

Occupation: Non-practicing attorney

Background: Irvine resident for nine years; planning commissioner for two years ending in June.

Issues: Believes major impending decisions, such as new residential subdivisions and solutions for the overdeveloped Irvine Business Complex, will revolve around planning; believes the city should take a more active role in the planning process rather than let developers define growth; believes the solution for the Irvine Business Center will be to mix traditional suburban environment with existing area near airport in a way that encour- ages walking and the use of mass transit.