Huntington Beach city attorney responds as City Council may seek outside legal help

Huntington Beach is the only city in Orange County that elects its city attorney instead of hiring one approved by the city council.

Michael Gates was first elected by Surf City voters in 2014, and he ran again unopposed four years later. But the City Council might soon begin seeking outside legal advice, if Mayor Barbara Delgleize, Mayor Pro Tem Mike Posey and Councilman Dan Kalmick have their way.

A potentially explosive agenda item for Tuesday night’s last City Council meeting of 2021, introduced by Delgleize, Posey and Kalmick, seeks to allow the council to select and procure the services of an outside legal firm that would report to and support the panel.

The agenda item states there are multiple times that the council “has been uncomfortable with the quality and accuracy of the legal advice provided by the city attorney.

“Of particular note, we are not asking for any changes to be made in the city attorney’s office,” the item reads. “We are simply asking that the City Council assert our rights under the city charter to obtain professional legal support for the City Council when we collectively believe that the city needs another legal opinion, in addition to the advice being provided by the city attorney.”

Gates has responded by publicizing a four-page letter, in which he claims that the item directly defies the city charter.

“By our charter, the people elected to choose the city’s legal counsel,” he said. “By the same vote, the people of Huntington Beach have elected to not allow City Council its own choice of legal counsel. If you do not like it, locate to a city that has a form of government more to your liking, or, propose such a vote to the people of Huntington Beach for a change — but do not abuse this form of government.

“Your attempts to circumvent the charter are not only offensive to your fiduciary duties to the city, [they] undermine the will of the people of Huntington Beach who adopted the charter, who ratified the elected city attorney multiple times, and who elected us. In reality, it is a flagrant attack on our democracy.”

The city charter does have a provision, Section 304 (b), which provides the Council the authority to procure outside legal counsel. But Gates said in an interview that it is being taken out of context in this case. He pointed to a 1981 California Court of Appeal analysis of the charter (O’Connor v. Hutton) that states that any attorneys hired are to help the existing city attorney, and would be under his or her supervision.

Gates said he believes that Posey, who was first elected to the City Council in 2014, the same year that Gates was first elected as city attorney, is behind the agenda item.

“He’s been after me for years, and I’m not going to back down,” Gates said. “I’m not going to let his petty vindictiveness and ambition violate the city’s charter or violate the will of the people. It’s just not going to happen.”

Gates, in addressing the Council on Nov. 16 during public comments, noted that the city has won each of its cases on appeal against the nonprofit Kennedy Commission, which advocates for low-incoming housing in Orange County. But the city is currently appealing a July decision by Los Angeles Superior Court Judge Michael Stern that it owed the Kennedy Commission $3.5 million in lawyers’ fees for a court battle that dates to 2015, when the city amended the Beach and Edinger Corridor Specifics Plan.

Posey said in an interview Friday that the comments last month amounted to a campaign speech for Gates, who led his comments that night by mentioning he was again a candidate for reelection in 2022.

“He made a campaign speech from the podium while he’s working for the city, in City Hall, using taxpayer-paid-for broadcast resources to try to embarrass the City Council,” Posey said. “That should be a pause to any reasonable person. Is the city attorney really giving good legal advice to the City Council, when he wants to attack the City Council?”

Posey noted that in January 2020, the state’s Fourth District Court of Appeals ruled that Huntington Beach had to abide by Senate Bill 54 despite its status as a charter city. In May of this year, the city settled a $2.5-million lawsuit that alleged age discrimination against Gates and his office.

Posey and Kalmick had introduced an item for a subsequent council meeting that would require Gates to perform an analysis of the settlement agreement, including all costs incurred, but the item was pulled.

Posey added that Tuesday’s agenda item only seeks the ability to get a second opinion, not usurp Gates’ authority.

“I just don’t understand how that is unreasonable,” he said. “Every private citizen, when they speak to an attorney and get legal advice, they usually get more than opinion. Especially if the opinions you have been getting are usually not great.”

Gates said he will explore his legal options if the Council passes the agenda item on Tuesday night.

“The people have voted for me,” he said. “The question is answered. The issue is dead. I don’t think they realize the legal mountain they’re trying to climb, and they’re just not going to make it.”

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