Our City Council will be facing a moment of truth Monday.
Actually, it’s council members Walt Keller and Carolyn Van Horn who are on the hot seat. They must vote Yes or No authorizing the hiring of an independent counsel to assist City Attorney Christi Hogin in her inquiry into campaign law violations in the last City Council election.
The campaign violation allegations are against some supporters of Tom Hasse, many of whom are also the supporters of Keller and Van Horn. Because this investigation grows out of his election campaign and concerns several of his supporters, Hasse rightly recused himself from both the debate and the decision, leaving the four council members to decide. It also created a problem: Because it takes three votes to take action, either Keller or Van Horn must go along or the council is deadlocked 2-2. At the last council meeting, both House and Barovsky agreed with the city attorney and wanted an independent council hired to assist in the investigation. Keller and Van Horn raised a number of questions and reservations and appeared opposed to the hiring. The final decision was put off to Monday’s council meeting.
Hiring an outside attorney is not unusual. The city does it all the time because it frequently needs a lawyer with special expertise. In fact, at the same council meeting where they balked at hiring an independent council for the campaign investigation, they agreed to hire an outside attorney for eminent domain matters. The arguments against the hiring of the special counsel are, in my opinion, pure politics, obvious to every one at the council meeting. It’s politics — with a twist.
Normally, questions of politics are decided at the ballot box, with one large exception: when it involves an investigation of a possible crime. This is an investigation to decide if a crime (campaign law violations) has been committed and, if so, to prosecute those violations.
In connection with a possible violation of law, the city attorney and the City Council have totally different responsibilities and legal obligations.
A city council can pass laws, like campaign laws, to make certain things a crime. Once the council has made a law and it’s been signed, the council’s function is over. The council does not decide if the law has been violated. That begins with the prosecutor, and in the city of Malibu that’s the city attorney– Christi Hogin decides whether or not to file a criminal complaint, and if she does, it becomes “People of the State of California vs. Someone.” City Council members not only have no right to try to influence that decision but if they tried to obstruct the prosecution, that could become a separate crime called “obstruction of justice.”
You begin to get a sense of how dicey this could get.
If Keller and Van Horn hold firm and refuse to fund the help that the city attorney is asking, is that a legitimate political decision, or are they trying to derail the investigation, and is that an obstruction of justice?
Even if they vote No, is the city attorney obligated to use whatever resources are necessary to complete the investigation, whether the council supports her or not?
If they refuse but the city attorney goes ahead anyway and gets the help she needs, can they fire her for exceeding her authority?
Since Hasse has recused himself in any decision concerning the investigation, can he participate in any debate or vote about the retention or firing of the city attorney, as she is involved in the investigation?
If they fire the city attorney or even threaten it, is that an obstruction of justice and a crime?
There are certainly historical antecedents. Richard Nixon fired several independent counsels in the well-known “Saturday Night Massacre,” which ultimately ended up in his resignation.
All this doesn’t mean anyone is necessarily guilty of anything. The city attorney could complete her investigation and decide that no one has committed a crime. But in the course of that investigation, she might have to interview Hasse, Keller or Van Horn as possible witnesses, which could be one of the reasons Hogin wants to bring in independent counsel.
Alternatively, she could decide to file a criminal complaint and then prosecute it herself or bring in a special prosecutor, which seems most probable. Ultimately, the question of whether or not a crime has been committed is up to a judge or jury to decide and not a prosecutor or city council. But the investigation process and a trial, of course, has all sorts of political fallout, whether in Washington D.C. or Malibu, which is probably why it fascinates us all.
Whatever the decision Monday, this confrontation will not end at that City Council meeting. Of that we can be sure.