Legal opinion on Alvarez’s hope for another term is a big secret

Claudia Alvarez

Santa Ana Councilwoman Claudia Alvarez (Photo: Chris Prevatt)

Back in November I wrote about a story Adam Elmahrek from Voice of OC broke (here) regarding a quest for an outside legal opinion to put to rest speculation about whether Santa Ana’s Ward 5 Councilwoman Claudia Alvarez is eligible for another term on the City Council.

In February 2008 the City Council forced a special election to expand term limits for Council members so that Claudia could get another term on the Council. The transparent political favor was even run out of her home. The measure (D) extended the city’s existing term limits for the Council from two four-year terms to three.

Alvarez now wants to know if she can run again based on the theory that the extension of the limit was a new law rather than an extension of a current law.  If it is new, then her term clock would have started over and she would be eligible three more four-year terms on the City Council.

While the City Attorney has issued an opinion that Measure D did not allow for any more than one term, he sought an outside legal opinion to confirm or reject his findings. We have learned that the report has been received by the City Attorney. Naively, we though the city would release the report as it would be of interest to the public what the results of that inquiry are.

The City Attorney’s office doesn’t think we should have a right to see it.

The City does possess a legal analysis of the effect of the 2008 Term Limit Charter Amendment (Measure D).  However, it has been determined that this record is exempt from disclosure pursuant to California Government Code section 6254(k), which precludes the production of records that are protected by the attorney client privilege. – Assistant City Attorney Ryan Hodge

Well, we have learned from our city hall sources that the legal opinion does indeed conclude that Councilwoman Alvarez is ineligible to run for an additional term on the City Council in 2012. From our perspective that settles that question, while raising another.

What is the big secret? The report is of significant interest to the general public, not just Councilwoman Alvarez and her colleagues. The public has paid for the analysis, and they should have the right to know the results in light of the significant public interest.

It would be real easy for the City to clear up the record here by releasing the report. Not doing so, simply adds to the already strong impression that the Santa Ana is the least transparent city in Orange County. But such is life in the Banana Peel Republic of Santa Ana.

  9 comments for “Legal opinion on Alvarez’s hope for another term is a big secret

  1. Al Simmons
    December 17, 2011 at 10:33 am

    Who is the client seeking the opinion here? Is it Claudia Alvarez or is it the city?
    If it was Claudia personally, there might be some confidentiality attached but, if it’s the city, the output would almost be definitely subject to public disclosure laws.
    Once again the city of Santa Ana demonstrates they have no idea what the concept of transparency is, and how inept the city attorney is with regard to disclosure.

  2. junior
    December 17, 2011 at 11:30 am

    California Government Code Section 6254
    “.. nothing in this chapter shall be construed to require disclosure of records that are any of the following:”
    “(k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

    The California Evidence Code simply makes settlement communications inadmissible to prove or dispute liability for a claim being negotiated.

    Typical attorney BS that means nothing – what federal or state law exempts this communication? It is not the CA Evidence Code.

  3. cook
    December 17, 2011 at 1:19 pm

    Of course she can run again, every qualified candidate can run for up to 3 terms.

    Its in the constitution, CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 9. ….ex post facto law, …..

    (Ex post facto ..ex post facto adj. Formulated, enacted, or operating retroactively.)

    It’s the very same reason that Brown gets another term as governor even tho he has already served the lifetime maximum of 2 terms.

    • December 17, 2011 at 3:36 pm

      Cook,

      I’m sorry but the State legislative and Constitutional office holder term limits do not apply to cities. The February 2008 Measure D extended the term of an existing law; it did not replace the existing law.

      As I was pointing out, the legal opinion would have brought closure to the question. Instead, the city has spent money to get an answer and now won’t release it.

      I wonder if not releasing the opinion has anything to do with Claudia not liking the answer?

      • cook
        December 17, 2011 at 9:11 pm

        “the State legislative and Constitutional office holder term limits do not apply to cities” (CP)

        California Constitution Article 1 Sec. 9 does apply, and that is where the blanket provision against any law Formulated, enacted, or operating retroactively is banned.

        I know that Mess D was sold to the voters as an extension to term limits, but what the voters got was a replacement, a 3 term limit replacing a 2 term limit. And that is why the clock restarts. It may need to go to the courts to sort it out because some believe the voters intent should prevail.

        • December 18, 2011 at 6:56 am

          Well, I guess that’s all the more reason for them to release the damned opinion. That way Claudia can go about suing the city to overturn voter and initiative intent. What a clever campaign strategy.

  4. junior
    December 18, 2011 at 9:34 am

    “Alvarez’s hope”

    I wasn’t an English (or Spanish) major, but wouldn’t “Alvarez’ hope” be more correct?

    Or perhaps it should it read – there is no hope for Alvarez to act as a decent person.

  5. cook
    December 23, 2011 at 7:01 pm

    Something to think about.

    Measure D changed the law in Santa Ana.

    And there is a court case that deals with this issue specifically.

    Case no. SC-09-03 (filed Feb 4, 2010)

    …. There was also concern that whatever they did in this regard would not have a retroactive affect as prohibited by both Constitutions …
    ….. As such, a prospective application dictates that the new term limits provision not apply until the 2007 election….
    …..to hold otherwise would cause an unconstitutional ex post facto application of a term of limitation – in effect a violation of both Constitutions.

    (These above excepts are from the supreme court case and are the words of the justices)
    ………….

    I still believe that All the qualified candidates are subject to a 3 term limit and that includes all the current councilmember’s, to hold otherwise would cause an unconstitutional ex post facto application. The term clock restarts (restarted Nov. 2008).

  6. cook
    January 4, 2012 at 11:28 am

    For these reasons, I would therefore concur with the majority that the officials elected in 2007 are under the first elected term of office for the purposes of term limits.

    (Even the dissenting judge found that the term clock restarted, just arrived at it from a different point of view).

    Has anyone found a copy of this case? Or am I the only one who has a copy.

    Maybe I should hold an auction for my copy.

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