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Public Officials Win Attorney Fees For Suing Own Board

Two members of the board overseeing the Orange County Great Park who sued the public agency over access to executive recruitment information should have their attorney fees paid, the Fourth District Court of Appeal has ruled.
 
Steven Choi and Christina Shea serve on the board of directors of the Orange County Great Park Corporation and the Irvine City Council. After being denied access to resumes and related materials of candidates seeking the job of chief executive officer, they sued the corporation. When the corporation settled the suit by agreeing to provide them access, Choi and Shea sought $44,000 in attorney fees. A trial court judge refused to grant them, but the Fourth District, in ordering fees to be paid, found there was "not a whit of evidence" the corporation would have made the documents available without the suit.
 
When completed, the Great Park will comprise 1,350 acres of the former El Toro Marine Corps Air Station in Irvine. While elaborate plans have been drawn up, only a 27-acre "demonstration park" has been finished, in part because housing development that would help fund the park has stalled. The Great Park was conceived to be a county or regional facility when voters approved it as Measure W in 2002, but the City of Irvine has since taken control of the estimated $1.6 billion project. The Great Park corporation board of directors is composed of  Irvine's entire five-member City Council and four other people appointed by board.
 
After going through three different CEOs in its first three years, the board hired the Mills Group in 2007 to conduct a nationwide search for a fourth. The board formed a search committee composed of  four directors, and Irvine's city manager and deputy city manager. Mills narrowed the field to 12 candidates out of 150 applicants. The search committee interviewed five finalists before recommending Kurt Haunfelner, president of the Chicago Museum of Science and Industry. Before the full board voted to offer the position to Haunfelner, Shea asked to see the resumes of the finalists. She was refused.
 
After Haunfelner declined the offer, the committee recommended Rod Cooper, the park's operations manager and an Irvine employee, but he withdrew from consideration before the board could vote. Soon thereafter, the Los Angeles Times revealed that Haunfelner was a friend of board Chairman and Irvine Councilman Larry Agran, who had once employed Haunfelner's brother as an aide. The Times also reported that the previous CEO, Marty Bryant, was convicted in 1989 of embezzling public funds from the City of San Juan Capistrano.
 
Choi and Shea asked to see all the resumes and materials received by the Mills Group but Agran and the corporation repeatedly refused to release them. In January 2008, Choi and Shea sued to see the materials. Two months later, the corporation agreed to provide Choi and Shea with complete copies of all materials related to the job search during a closed session.
 
Choi and Shea then sought to recoup their attorney fees under Code of Civil Procedure § 1021.5 (the private attorney general doctrine) and Corporations Code § 6337. Orange County Superior Court Judge Derek Hunt rejected the request on the grounds that there was no court judgment and that the suit produced no public benefit, as required under the private attorney general doctrine.
 
In overturning Hunt, the unanimous three-judge appellate panel considered the attorney fee request only under § 1021.5. That statute and case law do not require a judgment but a "broad, pragmatic view" of the matter's outcome, the court determined. In this case, the settlement brought about a complete reversal, as the corporation had "unequivocally refused to provide documents prior to the litigation," wrote Justice William Rylaarsdam.
 
On the question of public benefit, the Fourth District said: "Given the checkered history of the CEO search and the ongoing public criticism of the ‘revolving door of Great Park executives,' the method used for selection of the CEO should be beyond reproach. Plaintiffs' request for documents to determine how the search had been conducted to date was an act to maintain the integrity of the process itself, a significant benefit to the public."

"This is especially important given that out of 150 resumes collected … the selection committee's first choice had political ties to Agran and the second choice was another City of Irvine employee," Rylaarsdam wrote for the court. "This does not give the appearance of fairness or impartiality."
 
The court directed the trial court to determine the amount of attorney fees owed to Choi and Shea, who could also seek fees for the appeal.
 
One year ago, the board appointed Michael Ellzey, who had been deputy CEO for six months, to the Great Park Corporation's executive position.
 
The Case:
Choi v. Orange County Great Park Corp., No. G040823, 2009 DJDAR 9790. Filed June 30, 2009.
The Lawyers:
For Choi: Benjamin Pugh, Enterprise Counsel Group, (949) 833-8550.
For the corporation: Robert Thornton, Nossaman, (949) 833-7800.
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