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A Gilroy Councilman is demanding a refund for poor legal advice on medical marijuana dispensaries

Gilroy Councilman Perry Woodward called for a “full refund” of legal fees from the city’s contracted law firm after learning that Gilroy’s assistant city attorney advised the City of Los Altos to take a “diametrically opposed” stance on banning medical marijuana dispensaries.

In e-mails to fellow council members, city administrators and Linda Callon – the city’s hired attorney from San Jose-based Berliner-Cohen – Woodward urged the council to demand restitution for all legal fees paid to the law firm in connection with regulating medical marijuana dispensaries. Woodward said that Callon gave the council bad advice on two key occasions: Earlier this year when she dissuaded the council from enacting an ordinance banning dispensaries and Nov. 16 when she talked council members out of discussing a potential lawsuit against a dispensary in open session. The council ended up discussing the lawsuit in closed session, and Superior Court Judge Kevin Murphy pointed to this as a violation of the state’s Brown Act, which regulates open government, and as a reason he rejected the city’s latest attempt to shut down the dispensary Tuesday.

“Turns out (Callon’s) standard argument that an open session would have compromised the city’s litigation position was 180-degrees wrong; the closed session was what substantially compromised the city’s litigation position,” Woodward wrote in his e-mail.

On the phone Wednesday, Woodward recalled that he had specifically asked Callon whether the city should have an ordinance in place opposing medical marijuana dispensaries after an Oct. 12 council meeting in which the council voted against legislation that would have created regulations to allow cannabis collectives. Callon said an ordinance was unnecessary. Gilroy’s Assistant City Attorney Jolie Houston, who also works at Berliner-Cohen, recently advised the City of Los Altos to pass two ordinances banning dispensaries, “advice that is diametrically opposed to the advice we received from you,” Woodward wrote to Callon.

“You told us the safest thing to do was not to enact an ordinance,” he wrote.

Woodward, who is an attorney himself, also took aim at Callon for allowing the Nov. 16 closed session despite council members’ protests.

“The obvious implication, when you fain (sic) great surprise at (Murphy’s remarks about the Brown Act), is that you don’t think I know squat about the law in this area,” Woodward wrote in the e-mail to Callon. “Now you are telling us that neither does Judge Murphy. I take it back, it is not funny at all; it is simply amazing.”

Callon wrote in an e-mail sent to council members that she and Andy Faber, who argued the city’s case before Murphy on Tuesday, “strongly disagree” with Murphy’s comments regarding the Brown Act. She also cited cases regarding the Southern California cities of Corona and Claremont in which those cities were granted preliminary injunctions to shut down medical marijuana dispensaries.

On Tuesday, Murphy rejected Gilroy’s request for a preliminary injunction against MediLeaf – a dispensary that opened at 1321-B First St. last month between Rock Zone and Antdawg Universal Strength Headquarters without a business license – because the dispensary would not cause “irreparable harm” by staying open. He added that more harm would be done to MediLeaf’s business and its customers if it had to close. Second, he said it was not clear whether the city would prevail when the matter goes to trial.

Woodward asked City Administrator Tom Haglund to include an item in the next City Council meeting Jan. 11 for Woodward to talk about getting a refund from Berliner-Cohen for all fees paid in relation to litigation against MediLeaf.

Neither Callon nor Houston returned calls seeking comment on Wednesday.

Mayor Al Pinheiro said this week that he had never heard of attorneys giving back money to clients, and he felt that Berliner-Cohen had done the best that it could at this point. While he said the law firm is not perfect, he felt it has served the city well in the past.

“I want the City of Gilroy to be represented as possible,” Pinheiro said. “But I also don’t want to start throwing rocks without having all the facts and without being at the dais and having a conversation with fellow members of the council.”

He noted that the situation in Los Altos could be different from the situation in Gilroy and said different attorneys have different opinions.

Woodward said it was highly unusual for a law firm to give contradictory legal advice to clients, and he has been less than impressed with Berliner-Cohen.

“I think Berliner-Cohen has offered the city average legal representation for above-average costs,” Woodward said Wednesday.

He compared the situation to Berliner-Cohen building a house, which collapsed.

“How much are we going to squander on Berliner over this?” he wrote in an e-mail. “Enough is enough.”

By Jonathan Partridge