Garofalo’s Critics Ask, Where Was City Atty.?

For five years, activists in Huntington Beach have grumbled about the unseemly appearance of their councilman--now mayor--voting on city projects that involved advertisers in his local newspaper and the city’s annual Visitors Guide, which he also publishes.

At the same time, City Atty. Gail Hutton tried to look at Mayor Dave Garofalo’s possible conflicts of interest without fully addressing whether his votes, affecting scores of advertisers, were proper.

Now Hutton finds herself in the midst of the growing controversy, even as the state Fair Political Practices Commission begins an investigation at her request to rule on Garofalo’s alleged conflicts of interest.

Since Garofalo was first elected in late 1994, many city activists want to know what took her so long.

“She can’t cut him any more slack,” said Garofalo critic Susan Newman, who has known Hutton for 25 years. “This time, it’s like a volcano that’s erupted and whoever is inside the volcano is going to get spewed out.”

Hutton, the only independently elected city attorney in Orange County, has unique authority to pursue conflict-of-interest allegations. Under the state government code, elected attorneys of charter cities like Huntington Beach have the same ability as the district attorney to prosecute violations of the Political Reform Act, the state’s regulations governing conduct in office. Each violation carries a minimum $2,000 fine.

Instead, Hutton twice asked narrow questions of the commission and issued a limited ruling allowing a vote by Garofalo for an advertiser whose ad ran for free. She didn’t address the issue of his overall voting record until 1998, after a story on his business ties appeared in the Huntington Beach Independent, which is owned by Times Community News, a division of the Los Angeles Times.

Even then, her request for a conflict-of-interest ruling fizzled when the commission said it didn’t have enough information to issue a formal opinion. At the same time, she told council members in a memo that she would discuss the matter with the state attorney general’s office, but officials there say she made no inquiry.

Hasn’t Had Enough Evidence to Investigate

In a recent interview, Hutton, who has held her post for two decades, said she hasn’t had enough evidence to initiate an investigation into Garofalo’s votes over the years and that even if she did, such scrutiny of council members would be awkward.

“It’s hard to see council members and mayors and people you work with on a day-to-day basis and help them do all the things they have to do to run this government, then turn around and turncoat and start zealously calling up the IRS, calling up the attorney general, calling up the D.A., and say, ‘Go for it, here’s the evidence,’ ” she said.

State law bars elected officials from voting for 12 months on matters that would financially benefit anyone giving them $250 or more. The Political Reform Act also bars officials from being involved in votes or deliberations if it is likely that the outcome would have an “important impact” on the official’s financial interest.

Garofalo has defended his council record, saying he voted only after being cleared by Hutton and the commission. This past week, however, he abstained 10 times out of 30 votes on issues involving advertisers, citing the potential conflict of interest.

Last month, The Times reported that Garofalo voted at least 87 times since joining the council on matters affecting major advertisers in the Visitor Guides. Of the votes, 46 were taken between 1995 and Dec. 15, 1998, a year after Garofalo said he sold his financial interest in publishing the guides and The Local News, a bimonthly newspaper. Garofalo said a document filed with the county in April listing him as owner of the Local News was a paperwork mistake.

In a June 19 memo, Hutton advised Garofalo to abstain from voting on all advertisers’ issues until the commission issues its ruling. She also pledged to investigate whether Garofalo’s council votes to fund the Conference & Visitors Bureau posed a conflict of interest because of his ongoing relationship with the bureau to publish the visitor guides.

Rackauckas Won’t Rule Out a Probe

Her focus on his votes was renewed, she said, after a story in the Independent raised questions about whether the mayor actually sold his financial interest in his publishing business.

Orange County Dist. Atty. Tony Rackauckas said his office hasn’t received a request to investigate Garofalo’s votes involving advertisers. A separate complaint about Garofalo’s dealings in the formation of a local bank was closed without formal action.

Rackauckas didn’t rule out an investigation.

“This is the type of case we would take a look at,” he said.

The city’s charter, adopted in 1937, says the city attorney’s duty is to represent and advise council members and other city officers “in all matters of law pertaining to their offices,” and to prosecute criminal cases on behalf of the people.

Roy Ulrich, a public interest attorney in Santa Monica and board member of Common Cause of California, said Hutton has a duty to provide the commission with enough information to determine if state law was violated, he said.

“What she’s doing in essence is using the FPPC as independent counsel,” he said. “But she must provide them with adequate information and she’s not. She’s not doing her job.”

Conflicts of loyalty between representing the public and representing city officials are common, particularly with elected attorneys, said Deborah L. Rhode, a Stanford Law School professor and national expert on legal ethics. But the bottom line, she said, is the same: “She represents the public. A government attorney represents the people.”

Hutton, who has a staff of 15 and makes about $130,000 a year, said she doesn’t have the capacity to conduct independent investigations and doesn’t double-check information given to her by city officials.

“I ask [council members] for their records and try to give them the best lawfully supportable opinion I can,” she said. “And then it’s still subject to the FPPC saying, ‘We don’t agree.’ ”