Fitzpatrick Lawsuit To Proceed

 FOUR MEMBER MAJORITY VOTES TO MOVE AHEAD
As reported by Bradley Zint in the Daily Pilot last evening, HERE, four members of the Costa Mesa Sanitary District Board of Directors voted last night to proceed with the lawsuit to force the remaining director, Jim Fitzpatrick, out of his seat.

WE KNOW ONLY THE DECISION
Since the decision was made in a closed session - Zint tells us it actually took two closed sessions - we won't know how the discussions went as the Board considered the decision by California Attorney General Kamala Harris and the rebuttal letter to Harris by Assemblyman Allan Mansoor in which he says he will introduce legislation to basically nullify the grounds on which the Board has based their lawsuit.

DESPITE A WARNING FITZPATRICK THUMBS HIS NOSE
It is our understanding that Fitzpatrick was warned more than once by Sanitary District Counsel Alan Burns when he initially ran for the Sanitary District Board seat that, because he was a Costa Mesa Planning Commissioner at the time, if he was elected he would be in violation of law by holding two incompatible positions simultaneously.  Despite that warning Fitzpatrick did run and win his seat - and kept his planning commission appointment, as well.  In fact, a couple months later - in what some interpret as an in-your-face move - he requested to be re-appointed to the planning commission and was, in fact, re-appointed.  He was reminded, again, that he held two incompatible seats and, since he chose to be appointed subsequent to his election, he should resign from the Sanitary District Board seat.  He refused and the lawsuit ensued.

WHAT ABOUT THE MONEY?

Much later, apparently in an attempt to defuse the lawsuit, Fitzpatrick resigned his seat on the planning commission, but only after holding both positions in violation of the law for nearly 18 months - and receiving compensation for both positions.  A Costa Mesa Planning Commissioner is paid $400 per month - among the highest in the state - and a Sanitary District Board member can receive more than $1300 per month depending on the number of qualifying events/meetings he attends.  It is unclear whether he would be forced to pay restitution of the lawsuit is resolved against him.  OC GOP insider and Costa Mesa Parks and Recreation Commission member Jeff Mathews was appointed to fill Fitzpatrick's seat on the Planning Commission for the remainder of his term, which runs until 2015.

HE SHOULD RESIGN

So, onward they go with the lawsuit.  I don't know whether Fitzpatrick was given the opportunity to resign his seat or not, nor whether the Board would drop the lawsuit if he does.  That would seem to be the most appropriate course of action at this point considering the Attorney General's opinion.

ESTABLISHING THE PRECEDENT
There is also a body of thought that postulates that the lawsuit should proceed to resolve this issue once and for all on a statewide level.  I'm not sure it's good for our community to be, once again, placed in a position of having precedent-setting legal issues created because of actions in our locale.  You will recall that, primarily due to the obstinance of now-mayor Jim Righeimer, his bogus outsourcing scheme has resulted in a legal opinion that may force every General Law city to unravel their own outsourcing programs, much to their chagrin.

WAITING FOR AN UNLIKELY RESULT

Some, apparently including Fitzpatrick's former mate on the planning commission, Rob Dickson, expressed the view that the lawsuit should NOT be pursued because of the legislation Mansoor says he will propose.  That, of course - to use a Mansoorism - is silly.  As a member of the minority in the Assembly - and with a track record of having only one piece of legislation he proposed ever brought to a vote (the issue to eliminate the word "retarded" from the official state lexicon) - it is highly unlikely he will be successful in getting it passed.  Zint quotes Dickson as saying, "The precedent is very clear... it seems clear that this board is not interested in considering that the legislation run its course."  This does not surprise me at all.  Dickson has been supportive of Fitzpatrick throughout this ordeal.  We think he's got it wrong - the lawsuit should proceed.

NO COMMENTS AVAILABLE YET

Due to the lateness of the hour none of the Board members were available for comment.  We'll update this entry, or post another one, if and when those opportunities present themselves.

Attorney General OKs Suit To Remove Fitzpatrick

SANITARY DISTRICT MAY PROCEED WITH SUIT TO REMOVE FITZPATRICK
In a press release today Costa Mesa Sanitary District Counsel Alan Burns announced that California Attorney General Kamala Harris has determined that the District may proceed with legal proceedings to remove Director James Fitzpatrick from the Board. (Photo courtesy of Daily Pilot)

PRESS RELEASE
The press release reads as follows:

The Attorney General has issued her opinion on the matter of the incompatibility determination regarding Jim Fitzpatrick serving on both the Costa Mesa Sanitary District (CMSD) Board and on the City of Costa Mesa Planning Commission (PC). The Attorney General has ruled favorably on CMSD’s application and has opined that there are substantial questions of fact and law regarding whether such incompatibility exists and that the two offices are incompatible. The Attorney General opined that the public interest would be served if leave to sue was granted and therefore authorized the District to bring an action to remove Fitzpatrick as a Director.

In the opinion, the Attorney General stated that the public interest would be served by such litigation. The Opinion also makes it clear that an office holder cannot pick and choose which incompatible position is kept but that by “leapfrogging” positions, the first incompatible office held is forfeited when the second one is accepted. This Opinion also makes it clear that a quo warranto action may be brought by a district to remove a member holding an incompatible office.

The Opinion has been published by the Attorney General and adds to the body of law on this subject. The Opinion is available to the public. The Board of Directors has scheduled a special meeting in closed session to discuss the Attorney General’s opinion regarding this matter. The special meeting is scheduled for Thursday, December 20, 2012 at 5:30 p.m. located at District Headquarters, 628 W. 19th Street, Costa Mesa. The special meeting agenda can be downloaded on the District’s website at:
http://cmsdca.gov/agenda_packets_12/special_meeting_12_20_12.pdf

ILLEGALLY OCCUPIED BOTH POSITIONS SIMULTANEOUSLY?

You will recall that Fitzpatrick held both his elected position as a Director on the Sanitary District Board and an appointed position as a Costa Mesa Planning Commissioner despite having been advised in, as I understand it, two separate legal opinions that holding both positions was incompatible.  He subsequently resigned from the Planning Commission.  Many questions swirl around this decision.  For example, if the lawsuit continues and it is found that Fitzpatrick did, indeed, illegally hold both positions, will he be ordered to reimburse all fees he received from either or both positions that he held simultaneously?  Will he be required to reimburse the Sanitary District for its legal fees in this case?  Are there criminal charges associated with this case?

SPECIAL MEETING TOMORROW
As indicated in the press release, the Sanitary District Board will hold a special meeting tomorrow, Thursday, December 20, 2012 to discuss this opinion by the Attorney General.