Judge Dismisses Charge Against Councilman

A misdemeanor charge alleging that veteran City Councilman John Acosta improperly influenced the removal of a city administrator was dismissed Friday by a judge who decided that Acosta was simply exercising his free-speech rights.

Superior Court Judge David O. Carter granted a writ of prohibition dismissing the complaint that was filed against Acosta in January. But Deputy Dist. Atty. Wallace J. Wade said he would appeal.

The complaint said that in January, 1989, Acosta asked city officials to remove Edward Wilczak as Santa Ana’s building and safety manager. The district attorney’s office contended his actions violated the City Charter’s separation-of-powers clause, which says it is illegal for council members to “direct, request or take part in the appointment or the removal of an officer in the administrative branch of the city government.”

Acosta contended that he had simply offered his opinion of Wilczak to City Manager David N. Ream and had done nothing else to prompt Wilczak’s removal. Wilczak has since left the city to work for a private company. Acosta’s lawyer, Allan H. Stokke, argued that prosecuting Acosta amounted to an infringement of his free-speech rights.

Stokke made that argument before a Municipal Court judge earlier, seeking to dismiss the case, but he lost and appealed to Superior Court. The charge carries a maximum penalty of six months in jail and a $600 fine.

Stokke said that Carter stopped short of deciding that that particular portion of the City Charter was unconstitutional but said that it was improper to apply it to Acosta’s actions because it curtailed his free-speech rights and interfered with his representative duties as a councilman.

“As a councilman, he has to render opinions on the quality of people being hired,” Stokke said. “To prevent him from doing so means he can’t represent his constituents.”

“I’m gratified that the judge saw I was doing my duty,” Acosta said.

Wade said he “respectfully disagrees” with Carter’s decision. That portion of the City Charter was designed to prevent City Council members from exerting “improper influence on who will work in the government.”

“He can’t take part in hiring or firing decisions,” Wade said. “We still believe he violated the City Charter, and we think his guilt should be decided by a jury.”

Acosta charged that the prosecution was politically motivated, spinning out of a long-running feud between him and City Atty. Edward J. Cooper. Cooper asked Santa Ana Police Chief Paul M. Walters in April, 1989, to investigate the possible City Charter violation by Acosta. Walters referred the case to the district attorney’s office.

Cooper and Acosta, who owns a masonry business, have been at loggerheads since the city attorney filed a misdemeanor criminal complaint in 1988 against the councilman over zoning violations at a storage yard Acosta had been using in a residential neighborhood.

In October, 1989, Acosta and three other council members voted to place Cooper on a 60-day administrative leave without explanation. But Cooper refused to cooperate, saying the city charter required the votes of five council members for such an action.

Cooper then wrote the mayor’s office, saying Acosta might have violated the separation-of-powers clause by his actions in the zoning investigation and by asking police to put a friend’s towing company on a police rotation list.

After two months of legal wrangling, Acosta and his three council colleagues rescinded their bid to place Cooper on leave.