Thursday, December 20, 2012
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A.G.: Orange County Official Played Conflicting Roles
By KENNETH OFGANG, Staff Writer
A city planning commissioner cannot simultaneously serve on the board of a local sanitary district, Attorney General Kamala Harris has concluded in an opinion made public yesterday.
The attorney general granted leave to the Costa Mesa Sanitary District and four individual board members to bring a quo warranto action seeking the ouster of the fifth member, Jim Fitzpatrick. Fitzpatrick has served on the board since his election in 2010.
At the time of his election, he was a member of the Costa Mesa Planning Commission, having been appointed by the City Council a year earlier. He was reappointed to the commission in January of last year, a month after taking his seat on the Sanitary District board.
He resigned the city post in May of this year, after serving in both jobs simultaneously for 18 months. While he is no longer serving in a dual capacity, his fellow board members argue that he forfeited his seat on the board when he accepted reappointment to the Planning Commission, and on Tuesday, the attorney general agreed.
The Voice of OC website reported in February that the board voted to seek Fitzpatrick’s ouster after both in-house and outside counsel concluded that he had violated Government Code Sec. 1099, the codification of the common law rule that “a public officer…shall not simultaneously hold two public offices that are incompatible.”
Fitzpatrick, who is also president of the Costa Mesa Taxpayers Association, told the website his colleagues were trying to push him out because he opposed their plan to accept a proposed 20-year trash removal contract with the current contractor, rather than open the deal to competitive bidding.
Harris said the two offices are incompatible because “there is (or was) a potential for [a] significant conflict or clash of interests or loyalties between the offices.”
She noted that the district—which includes the entire city, as well as Newport Beach and some unincorporated areas—has numerous powers affecting land use in the city and “extensive facilities” within Costa Mesa that are subject to the city’s general plan, and provides services to the city’s governmental offices, including those of the Planning Commission.
“[T]here are myriad possibilities for influence and exchange between a planning commission and a local district that lies within the planning commission’s territory,” the attorney general wrote. She cited opinions of her predecessors holding that service on a local planning commission is incompatible with membership on a school board or recreation district board.
Harris also rejected Fitzpatrick’s contention that the issue is moot because he resigned from the planning post. She explained that “a person who unlawfully holds two incompatible offices is not generally considered free to choose which office to retain; rather, the first office is ordinarily considered forfeited as a result of the person having accepted the second office.”
Harris reasoned that “the leap-frog chronology of [Fitzpatrick’s] service would mean that he has twice forfeited a public office,” losing all right to his seat on the Planning Commission when he joined the Sanitary District Board in December 2010, and then forfeiting his board seat when he accepted reappointment to the Planning Commission a month later.
The attorney general also gave short shrift to the argument that a statutory exception to the common-law rule applies to Fitzpatrick. While Health and Safety Code Sec. 6480(b) permits a “member of the legislative body of a city whose territory is encompassed” by the boundaries of a sanitary district to serve on that district’s board, the exception cannot be construed as applying to a member of a planning commission, because the city council is “the” legislative body referred to, the attorney general said.
If the distinction between a city council and a planning commission is illogical in this context, Harris said, that is a matter for the Legislature to address.
In view of the clearly established law, the attorney general went on to say, granting leave to sue in quo warranto is in the public interest. The motives of the individual board members for seeking the remedy are irrelevant, she said.
She also rejected the contention that the district itself lacks standing.
The board’s counsel said in a release yesterday that the board will hold a special meeting to discuss the attorney general’s opinion, beginning at 5:30 tonight, at district headquarters.
The opinion, prepared for Harris by Deputy Attorney General Daniel G. Stone, is No. 12-602.
Copyright 2012, Metropolitan News Company