Surf City Voice
Editor’s note: This article is the second of a three part series.
On August 6, the last day for local candidates to file papers, T. Gabe Houston came to Huntington Beach City Hall and officially became incumbent City Attorney Jennifer McGrath’s opponent in the November election.
When he handed City Clerk Joan Flynn his list of 24 qualifying signatures, Huntington Beach City Councilmember Devin Dwyer’s name was at the top.
Who is T. Gabe Houston, anyway?
Houston’s official candidate’s statement says he is an attorney, business owner, financial professional and member of the Huntington Beach Finance Board—he was appointed by councilmember Keith Bohr.
But a quick look at Houston’s professional web site (his lean campaign web site was uploaded just before press time) proves that he is not likely to be the candidate who Red County blog publisher Chip Hanlon bragged McGrath would probably face: “the strongest challenger she could imagine this Fall (sic)…Extremely close in [Republican] party politics…close to the Rohrabachers…very recognizable name…connected to the donor community in a big way,” a person who would make McGrath faint when she received the news.
Houston has none of those qualities.
In fact, he is a defense attorney, licensed for little over two years, with a business web site that is tagged with choice Republican voter turn-off terms like CraigslistPimp, HBHookers, HBPimps, Hookers, OC Hookers, OC Pimps, Pandering, Pimping, Prostitution, Selling Sex, etc.
Houston’s business web site also presents an enlightening, well worth watching, video that explains why people should never talk to the police—it would make the ACLU and other civil libertarian groups proud, but anti-lawyer critics like Dwyer might scream if they watched it.
Although the list of Houston’s “successfully represented clients,” which includes everyone from alleged drunk drivers and run in the mill drug offenders to alleged sex criminals, terrorists “and many others” is certainly indicative of the noble pursuit of justice necessary to protect the presumption of innocence and maintain a vibrant democracy, it’s not likely to attract many of the Republican voters who McGrath’s strongest enemies need to take her out of office.
But Houston, who is 37-years-old and grew up in Huntington Beach, is not the mysterious McGrath slayer and Surf City savior, according to Chip Hanlon, who confided to the Voice that his hoped for candidate, who he would not identify but said was not Scott Baugh, simply decided not to run.
Nor has Hanlon individually endorsed Houston (Red County does not endorse candidates, even though it did give McGrath its anti-endorsement), although he is “certainly open to looking for alternatives,” noting that Houston shares his view that the city attorney should be appointed by the city council instead of elected.
Houston’s Secret Advisers
Almost all of the signatories to Houston’s candidate’s petition come from the Cape Anne neighborhood, whose residents have come to the city council in droves to protest the resale rules for homes that they bought through the city’s affordable housing program.
If Houston isn’t the mystery candidate revealed, who other than his neighbors and Dwyer are his supporters? He won’t say, but alludes to “people who are sort of sitting on the fence” and advisers “well within the city council.”
Dwyer did not respond when the Voice asked why he signed Houston’s petition, given the candidate’s un-Republican-like background, but his signature certainly puts him on the short list of Houston’s possible secret advisers.
If there is doubt about Dwyer, Councilmember Keith Bohr implicates himself in a long and loathing e-mail he recently sent to McGrath, a copy of which has been obtained by the Voice.
In that e-mail Bohr attacks McGrath’s integrity as a public official and loudly declares, “If Mr. Houston does proceed to run and he publicly affirms that he also agrees that the City Attorney position should be appointed rather than elected, I will gladly publicly endorse and financially support him.”
Houston told the Voice by phone that he does support converting the City Attorney’s office to an appointed position, but his campaign web site makes no mention of that issue.
Was Houston Practicing Law?
In May, the City Council voted to give Surf City residents the chance to vote on various changes to the City Charter recommended by the City Charter Review Commission, including changes to the eligibility standards for City Clerk, City Treasurer and City Attorney candidates.
Some of the 15 commission members wanted to make the office subject to appointment by the city council rather than by a vote of the people—a dream held by at least seven previous councils going back to 1958 but which was defeated on as many occasions at the ballot box, most recently in 1996. Considering the history, the commission quickly agreed that it would be futile to put the issue to the voters again now.
Instead, the commission recommended changing Section 309 of the charter so that, in addition to being licensed by the State Bar, city attorney candidates are required to have graduated from an American Bar Association accredited law school and “engaged in the practice of law in this State” for five years prior to being elected or appointed to office.
For this election, however, nothing in Section 309 changes, including the requirement of three years of experience “engaged in the practice of law in this State.”
City Clerk Joan Flynn has confirmed that Houston called her office several months ago (McGrath says it was in April) to inquire about running for city attorney. According to Flynn, after being told what the eligibility requirements are, including that he needed three years experience as a practicing attorney, Houston, who became a licensed attorney on June 3, 2008, concluded that he did not have the qualifying three years experience.
Then, two days before the filing deadline for city candidates, Houston told Flynn that he was qualified after all. His new argument was that even though he had been licensed for only 26 months (or 29 months by election day), he had legally practiced law as a State Bar Certified Law Student (CLS) for 10 months under its Practical Training of Law Students (PTLS) program, and thus met the City Charter’s three-year requirement.
According to the State Bar web site and the 2010 California Rules of Court, a certified student is allowed to perform legal services that normally only the licensed attorney could perform, such as negotiating on behalf of clients, appearing for them at depositions, representing them in various court or other legal proceedings as well as some criminal trials—under supervision of a licensed State Bar Attorney
The performance of these particular legal services, or, broadly speaking, “the giving of legal advice and counsel and the preparation of legal instruments affecting the client’s legal rights,” as stated in a 1970 California Supreme Court ruling, constitutes “practicing law” in California.
Legal statutes within the California Business and Professions Code, which are based upon case law, define legal services which only licensed attorneys may perform, but do not provide a definition of practicing law that covers all situations.
That assessment comes from a report, “Unauthorized Practice of Law: Manual for Prosecutors,” published by Los Angeles District Attorney Steve Cooley in 2004. The report points out that “California’s Supreme Court and courts have knowingly crafted a broad definition of law practice suited to grow with the profession.”
Cooley’s report shows that case law interpreting Business and Professions Code statutes has determined that the services that are often provided by a law clerk or intern, including preparatory duties like research and filling out paper work, and are not considered practicing law.
Confronted at the last minute with Houston’s new claim, Flynn says, she contacted the Orange County Register of Voters and a private firm that consults the city on election issues and they told her that, based on Houston’s claim he was a CLS during his three internships, she should accept his papers, which she did on Aug. 6, the last day for candidates to file.
After learning of Houston’s new claim, McGrath sent an e-mail inquiry, which the Voice later obtained a copy—but will not reveal the source of, to the State Bar to check up on Houston’s assertion that he had been a certified law student. The State Bar’s Senior Executive for Admissions confirmed only that Houston had been enrolled as a CLS for 2 ½ months, from June 15 2007 to Aug. 30, 2007, not for 10 months as he had claimed.
McGrath then sent an e-mail to Houston, cc’ing all members of the City Council, the City Administrator, City Clerk and another city official, indicating that he may have violated the Business and Professions Code if he practiced law without being a CLS and prior to becoming a licensed attorney. She also asked Houston if he could provide documentation of his claimed CLS experience.
The next day Bohr sent a long e-mail reply to McGrath, cc’d to the rest of the city council and other officials. A copy of that e-mail was also obtained by the Voice.
Bohr was furious at McGrath for challenging Houston’s eligibility, but in the first part of his two-page attack he bashes McGrath for breaking a promise he says she made to him in 2002—when she asked for his support for her election campaign at that time—not to oppose any attempt to make the city attorney’s office an appointed position.
“Since that time as thee (sic) ‘elected’ city attorney you have very much changed your tune,” Bohr complained, “Shame on me for taking you at your word.”
He then accuses McGrath of “very aggressively” lobbying to maintain the elected status of her office before the Charter Review Commission, as a member of the public, “after which presenting such testimony you went and sat back down as the City Attorney staffing said Charter Review committee (sic).” Bohr said she lacked integrity for not avoiding the appearance of a conflict of interest by sending staff attorneys to the meetings instead of going herself.
In a written response to the Voice, McGrath said that she attended the Charter Review Commission meetings because “I appreciated the importance of the Charter and I have the responsibility of interpreting and enforcing the Charter.”
She also denied creating any conflict of interest in that role. “As evidenced by the public record, I recused myself and ensured that an Assistant City Attorney advised the Charter Review Commission during the deliberation of Charter Section 309, ‘City Attorney’, for this reason specifically. I think my decision to recuse myself was an example of integrity.”
Bohr’s personal attack on McGrath intensifies as his e-mail continues, asking why she is “so afraid” of running for reelection. “You really shouldn’t have it both ways if the system is going to work best for our residents should you,” he asked.
Bohr also accuses McGrath of “literally trembling with fear” at rumors that Scott Baugh was going to run against her, despite “speaking with bravado how you had no fear and would beat him in an election.” He said she was “`pissed’ that the City Clerk did not bail you out and reject Mr. Houston’s candidate filing,” despite asserting that she would “kick his ass” in November.
Then, referring to McGrath’s inquiry into Houston’s eligibility for office, Bohr wrote “I would have preferred to not have had to air this publicly, but since you chose to do so I have ‘replied to all’ and then some.”
In his e-mail to McGrath, Bohr shows a misunderstanding of Houston’s eligibility problems, specifically the manner in which he misrepresented his work as a certified law student. He did not “fail to obtain a new certification each time he had a new employer,” as Bohr asserts, but had never obtained a certification until his last intern job.
Bohr also dismisses the problem as a “technicality” that he hopes McGrath will not use to litigate her way to victory. If Houston will publicly support making the city attorney’s office an appointed position, he declares, “I will gladly publicly endorse and financially support him.”
Bohr’s e-mail letter and McGrath’s response to it can be read in full by the readers, here. But whether a person is legally qualified to practice law or not and what constitutes the “practice of law,” either for government regulatory purposes or for determining the qualifications of a candidate for public office, and whether candidates have accurately and truthfully represented their qualifications for office are hardly mere technicalities.
LA District Attorney Steve Cooley’s report was born out of concern over the effect of the widespread unauthorized practice of law in Southern California. Many immigrants lose their money to con artists with inadequate training and expertise posing as attorneys offering help for acquiring naturalization or citizenship, Cooley points out. But the unauthorized practice of law, he says, can affect anyone and “occurs in all legal fields, including family law, personal injury, bankruptcy, and criminal law.”
Increasing the qualifications for City Clerk, City Treasurer, and City Attorney were all issues of discussion for the Charter Review Commission and the results of those discussions are in the form of the charter revisions that the City Council unanimously voted to put on the November ballot.
No Documentation & More Legalese
Houston did not provide documentation of his previously claimed 10 months of certified law student experience because it didn’t exist. In fact, when contacted on the phone by the Voice, Houston admitted that he accidentally gave incorrect information to the City Clerk.
Later, by e-mail, Houston explained what happened:
“When I pulled papers to be placed on the ballot, I believed that I was a certified law clerk for three semesters while in law school. During the fall of 2006 I clerked for Judge DiCesare in the Orange County Superior Court, West Justice Center, as a law clerk. In the Spring (sic) of 2007 I clerked for the Federal Aviation Administration, working essentially as a first year associate. In the summer of 2007 I clerked for the Orange County District Attorney as a certified law clerk.”
(When asked by the Voice how he could have mistakenly thought that he had been a certified law clerk prior to actually receiving his student certification, Houston did not reply.)
That still left Houston 3 ½ months short of the 36 months of experience “engaged in the practice of law” he needed to be an eligible candidate.
But, using a type of legalese that Councilmember Dwyer might object to, Houston insists that he is still a valid candidate.
Now he reasons that even though he wasn’t certified as he originally claimed, he can still count non-certified clerking experience to conform to the City Charter’s eligibility requirement and be the City Attorney if the voters want that.
“The question presented to the voters is whether they will accept my work with the FAA and in Judicial chambers as sufficient experience to constitute ‘engaging in the practice of law,” he told the Voice.
But if Houston was not a licensed attorney or certified law student during any of the remaining 7 ½ months of internships, how could he have been legally practicing law or have met the City Charter’s standard of experience?
In his e-mail to the Voice, Houston cites Section 6126 (a) of the Business and Professions Code, which reads, in part, “Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor” (emphasis added by Houston).
Houston’s daily job duties as a non-certified clerk were the same at the FAA and under Judge DiCesare, according to his e-mail to the Voice. “I drafted legal opinions, complaints, discovery motions, appellate briefs, attended settlement conferences, and engaged in general litigation responsibilities in administrative law.” But those duties seem to fall under “Tasks mere ‘preparatory in nature’” described in DA Cooley’s “Examples of Activities Which Are Not the Practice of Law.”
Houston describes his judicial internship as a coveted legal position that provides valuable professional law experiences, and he finds it “impossible to believe” that “very seasoned attorneys” wouldn’t consider their time spent as a judicial law clerk as having been engaged in the practice of law.” But, again, those experiences, as he describes them, do not appear to meet the legal definition of practicing law carved out by case law.
By contrast, Houston’s description of his work with the Orange County DA’s office, when he actually was a CLS, fits the definition of a practicing attorney described by case law—because he was arguing court cases. “While a law clerk with the Orange County District Attorney, Felony Projects division, I routinely argued evidentiary motions, conducted preliminary hearings,…” (emphasis added).
Flynn says that if she had known on the Aug. 6 what Houston would tell the Voice 10 days later—that he had given inaccurate information about his eligibility as a candidate—she would have examined his qualifications further, which would have probably resulted in keeping him out of the election because her inquiry would have gone past the filing deadline.
There is a 10 day period for the public to challenge the legitimacy of candidates, Flynn said, but it ended on Aug. 16, the day the Voice interviewed her for this story.
Houston says that McGrath’s misled people by claiming that a certified law student is not practicing law, and that “It calls into suspicion all of her other (clearly biased) opinions on this subject.”
But McGrath says that Houston is the one misleading the public. “Mr. Houston misled the people when he claimed he was a ‘certified law student’ for a year,” she told the Voice.
As to whether a certified law student is qualified to run for city attorney or not, McGrath says that most attorneys worked as law clerks before becoming licensed and that “as law students they do not consider this experience as having been ‘engaged in the practice of law.’ If a member of the public wants to hire someone ‘engaged in the practice of law,’ I think they would be looking to hire a licensed attorney and not a law student.”
Whether CLS experience qualifies or not seems irrelevant considering that even by his own admission Houston wasn’t certified during two of his three internships, so it’s odd that he still insists he played by the City Charter rules.
But Houston’s stubbornness may ultimately rest best upon the assumption, true or not, that the phrase “engaged in the practice of law” in Section 309 of the City Charter can be
interpreted with more flexibility than past legal interpretations spelled out in case law, and that the voters are the final judges of his qualifications.
After all, if Houston was not a CLS when working for a judge or the FAA, how else could he say that he was legally practicing law at that time unless he asserts, however obliquely, that the City Charter has its own unique interpretation of “engaged in the practice of law” independent of State law?
The only other legal opening for practicing law without a State Bar license in California is through a procedure known as pro hac vice that applies only to non California residents, which excludes Houston.
Stealing the Election?
Whatever the truth is, Houston is obviously willing to take his chances with the voters.
“Although some of the facts I relied upon to make that determination [of eligibility] have been changed, I still believe that my experience qualifies,” he wrote to the Voice.
“If Ms. McGrath disagrees, she is permitted, and even encouraged, to file a writ of mandate seeking my removal from the ballot. Two reasonable minds can disagree. Again, this is why we have the court system. But more importantly, this is why we have elections and a DEMOCRATIC system,” Houston explained.
It may take a court decision to decide the matter, but McGrath says that she is not the one who will take on that task. “As an incumbent candidate, I have recused myself and my office from this role [of prosecuting]. Any further action in civil or criminal court will be at the discretion of the City Council, the District Attorney’s Office, and the State Bar,” she told the Voice.
In Houston’s view, McGrath “is trying to steal this election away from the will of the people and walk into her third term, the second consecutively as an unopposed incumbent.”
McGrath says that she will continue campaigning as a proven and qualified candidate and that Houston has disregarded the will of the people. “The will of the people established the minimum qualifications for office and he does not meet them without a tortured analysis of the qualifications.”
As Houston points out, anyone can file a lawsuit over his candidacy, but for at least the short term, the outcome will be left to the will of the people, just as Bohr would also like.
After the election, when political fireworks have temporarily settled and a new city council is sworn it, it might be a good idea to form a new citizens review commission to take up where the old one left off and fix the rest of the City Charter’s remaining lose language—just as the current commission made revisions to controversial sections 612 (building in parks) and 617 (infrastructure) of the City Charter, which the voters will consider this November.
Mark Bixby, a Huntington Beach activist, who served on the previous commission and tried, unsuccessfully, to amend the current city charter so the city attorney would be appointed or removed by the city administrator and subject to recall by voters, expects a lawsuit will be filed if Houston wins the election, but he is optimistic for the long run.
“There were a great many decades of combined civic experience between the commission, the consultant, the City Attorney, city staff, and the council, and yet we all missed it. What can I say,” he asks, rhetorically.
His answer: “Probably that government is obviously an imperfect social structure, but that as long as you learn from your mistakes and move forward with refinement to make things better, then you are heading in the right direction.”