TUSTIN : City Must Pay Fees in Election Dispute

An arbitrator ordered the City of Tustin this week to pay $50,000 in legal fees incurred by Tustin Councilman Earl J. Prescott and former Councilman John Kelly in their unsuccessful fight to continue holding municipal elections in November.

The City Council had refused to pay for any of Prescott and Kelly’s legal expenses, claiming that they acted illegally in their attempt to block the change to April elections.

But the arbitrator ruled that they were acting in an official capacity and merely defending themselves when the city clerk sued to make them vote to set election details. Their vote was necessary because the council deadlocked after Councilman Ronald B. Hoesterey resigned.

“In voting as they did, they believed they were acting in the best interests of the residents of Tustin and were exercising their prerogative as elected officials to vote their consciences,” ruled arbitrator Robert Feinerman of Pacific Palisades, a retired Los Angeles Superior Court justice.

Feinerman, however, also ruled that the city is not obligated to pay an additional $100,000 in expenses racked up when Kelly and Prescott sued the city.

In their lawsuit, Kelly and Prescott claimed that the court should reverse the council’s decision because Hoesterey was not a legal resident when he voted to change election dates.

They maintained that November elections are preferable to April because they attract more voters but dropped their suit in September, 1990, and agreed to enter arbitration over the fees.

On Wednesday, Prescott rejoiced in what he said is a moral victory.

“I’m elated because we’ve been totally vindicated,” Prescott said. “You’ve got to remember that (City Atty.) Jim Rourke labeled us criminal and denied us reimbursement for our legal fees.”

But Mayor Charles E. Puckett said he is sad the city had to spend any money on legal fees for the battle.

In all, the city spent more than $200,000 on attorneys for the city clerk and for the five council members, City Manager William A. Huston said.

“When you put it in perspective, that could have paid for three police officers for a year,” Puckett said. “It could have paid for eight to 10 police cars or two street sweepers. Or it could have provided the funds for more than half of a neighborhood park. And it’s sad that the city had to spend that kind of money on this.”

Prescott said he is not certain where the money for his legal fees will come from but said he is more concerned with the chosen election date.

“We fought the good fight,” Prescott said. “It may have cost us money, but the big losers are the citizens of Tustin who can’t vote in November. It’s not a healthy government when you have a council chosen by 15% of the electorate, rather than 70%.”