HomeMy WebLinkAboutNB 2 LTRS COUNCILMEN 03-05-90u E
A;
- Z- 90
DATE: 2/27/90
NEW BUSINESS N0. 2
3-5-90
Inter - Com
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: CITY ATTORNEY
SUBJECT: LETTERS FROM COUNCILMEN PRESCOTT AND KELLY REQUESTING
CITY'S AGREEMENT TO PAY THEIR ATTORNEY'S FEES
Enclosed are copies of letters received from Councilmen
Prescott and Kelly requesting that the City agree that it will pay
their attorney's fees in defending the lawsuit of Wynn v. City of
Tustin.
Considering that the subject lawsuit is one which has been
necessitated by the failure and refusal of Councilman Prescott and
Councilman Kelly to approve Resolution 90-26 and thereby carry out
the duties they are mandated to perform pursuant to the provisions
of the Elections Code, the failure of which constitutes a crime
under the provisions of the Elections Code, I would recommend that
the City Council not agree to pay their attorney's fees unless and
until the Court has adjudicated this action. If they are found by
the Court not to have failed to perform their duties and
responsibilities as City Councilmen, then I would recommend the
City pay their attorney's fees, but otherwise I would recommend
that the City not pay their attorney's fees.
The question will likely be raised of how the City Council
could properly refuse to agree to pay Councilmen Prescott's and
Kelly's attorney's fees in their defense of the subject action when
the City paid the attorney's fees of Councilman Hoesterey in
defending himself against the lawsuit brought against him by
Councilmen Prescott and Kelly. My answer to that would be that
Councilman Hoesterey was duly elected to the office of City
Councilman by the voters of the City of Tustin and was certified
and qualified as a Tustin City Councilman. Mr. Prescott and Mr.
Kelly contended that Mr. Hoesterey ceased being a resident of the
City of Tustin some time prior to his resignation on November 21.
Mr. Hoesterey denied that allegation. Mr. Kelly and Mr. Prescott
sought an adjudication from the courts on their contention and
their action was rejected by the courts. That was quite a
different situation from the situation presented in the Wynn v.
Tustin proceeding which involves seeking a court order that orders
the City Council to perform its legally mandated duties to take all
proper steps for an election to be held on April 10 as prescribed
by the Government Code and the Elections Code of the State of
California.
J G . ROURKE
City Attorney
JGR:rr:R:2/27/90(a\524)(7)
Enclosures
cc: WH
EARL J. PRESCOTT
Councilman
CITY OF TUSTIN
300 Centennial Way
Tustin, California 92680
(714) 544-8890
February 23, 1990
James G. Rourke, Esq.
City Attorney
City of Tustin
c/o Rourke & Woodruff
701 South Parker Street
Suite 7000
Orange, California 92668
Re: Request for the City of Tustin to Provide a
Defense and Indemnification of Pending Legal
Action to be Brought� by the City Clerk
Dear Mr. Rourke:
On February 22, 1990, I received telephonic notice
from Robert Owen of the firm of Rutan & Tucker that the City
Clerk had elected to initiate a legal proceeding against me
and Councilman Kelly -to compel our affirmative vote on
Resolution No. 90-26. As you.are aware,- the Government Code
of the State of:California-provides that upon request of an
employee (which includes a council member) a public entity
(which includes the City) "shall provide for the defense of
any civil action or proceeding brought against him, in his
official or individual capacity or both on account of an act
or omission in the scope of his employment as an employee of
the public entity."
In light of the obvious conflict of interest which
would preclude yourself from representing me and Councilman
Kelly in this pending civil action, I have consulted with
the law firm of McCauley & Dubia, 5 Park Plaza, Suite 650,
Irvine, California 92714 (714) 476-2300 and request that the
City of Tustin agree in writing to retain that law firm on
my behalf.
James G. Rourke, Esq.
February 231 1990
Page 2
Your prompt response is expected and appreciated.
Very truly yours,
Z�a //2
Earl J. Prescott
Councilman
City of Tustin
02/23/90 18:A7 a 714 669 0599 LR6ANK TUSTIN 01
JOHN KELLY
Councilman
CITY OF TUSTXN
300 Centennial Way
Tustin, California 92680
(7 14) 544-8890
February 23, 1990
James G. Rourke, Esq.
City Attorney
City of Tustin
C/o Rourke & Woodruff
701 South Parker Street
Suite 7000
Orange, California 92668
Re: Request for the City of Tustin to Provide a
Defense and Indemnification of Pending regal
Action to be BrQught by the City Clerk
Dear Mr. Rourke:
On February 22, 1990, I received telephonic notice
from Robert Owen o-f--th-a- firm of Rutan & Tucker that the City
Clerk had elected to iriiti e a legal proceeding against me
cy'and Councilman R' o`'`cbel our affirmative vote on
FQcolution bio. 9 0-3 6 . - Ao you aro inure, the Govounme ;t Cvae
of the State of California provides that upon request of an
employee (which includes a council member) a public entity
(which includes the City) "shall, provide for the defense of
any civil action or proceeding brought against him, in his
official or individual capacity or both on account of an act
or omission in the scope of his employment as an employee of
the public entity."
In light of the obvious conflict of interest which
would preclude yourself from representing me and Councilman
Prescott in this pending civil action, I have consulted with
the law firm of McCauley & Dubia, 5 Park Plaza, Suite 650,
Irvine, California 92714 (714) 476-2300 and request that the
City of Tustin agree in writing to retain that law firm on
my behalf.
�gg4NK TUSTIN 02
02/23/90 18:e _ a 714 669 0599
James G. Rourke, Esq.
February 23, 1990
page 2
youxP rompt response is expected and appreciated.
very truly yours,
.-John KellY
///
Councilman
City of Tustin