Newport Beach is seeking dismissal of a resident’s lawsuit demanding that a special prosecutor look into allegations that a majority of the City Council illegally met in secret to plot the ouster of City Manager Dave Kiff.
The complaint, which Chuck Groux filed in May in Orange County Superior Court, drew a four-pronged request for dismissal from the city.
The response, filed in court Thursday, argues that:
Groux did not file a civil complaint with the city before filing a lawsuit claiming criminal violation of the state open-meetings law. But even if he had, another resident had done so previously and the city issued a formal “commitment letter” promising not to violate the law but also emphasizing that surreptitious meetings allegedly involving council members Scott Peotter, Kevin Muldoon, Mayor Marshall “Duffy” Duffield and Mayor Pro Tem Will O’Neill never took place.
Only the county district attorney can compel a criminal investigation.
Precedent bars judges from forcing criminal investigations — or as city lawyer Douglas Dennington wrote, “allowing any person with a perceived grievance to commandeer the criminal justice system.”
The city has no mandatory duty to declare a conflict of interest between City Attorney Aaron Harp and the City Council, despite Groux’s claim that Harp was either complicit or derelict in allowing the alleged private meetings to occur. Groux argued that Harp can’t investigate the council members if he wants to keep his job.
Kiff plans to leave Aug. 31, eight months earlier than his contract had been scheduled to expire.
The call for a special prosecutor uses arguments about Harp that are similar to those in a complaint another resident filed this year claiming that Peotter broke several state and local campaign finance rules in his bid for reelection this year.