Sanitary Board to discuss member’s potential conflict
While the rest of his board colleagues went over last-minute updates and comments during Thursday’s Costa Mesa Sanitary District meeting, Jim Fitzpatrick held a thousand-yard stare.
When the meeting adjourned, he was the first one up. He said nothing and headed for the door. A staff member had to catch up with him to give him his paycheck: $1,217.65 for six monthly meetings and mileage.
Fitzpatrick appeared spent. For the last 40 minutes of the evening, the first-term sanitary board member fought for his part-time job, which two attorneys and the rest of the board say likely conflicts with the city Planning Commission seat he’s held since 2009.
Claiming he was “ambushed,” Fitzpatrick accused his colleagues of breaking the law and conspiring against him because he asks pointed questions during meetings.
Fitzpatrick could only shake his head as the board made plans to meet without him Tuesday in closed session. It will be considering taking legal steps to oust him from the board.
Fitzpatrick, who lives in Costa Mesa, contends that he can hold both seats and that no issue has so far come before either board that puts him in conflict with the other. In the end, he says he can recuse himself from votes if needing to avoid a conflict of interest.
However, Fitzpatrick’s overall argument that he has a legal claim to the Sanitary District seat has little precedent.
While an official can sit simultaneously on the sanitary board and the City Council, a judge hasn’t determined whether it’s a conflict of interest for an official to serve the sanitary board and the Planning Commission at the same time.
Fitzpatrick’s case could establish that precedent.
In a legal memo discussed among the board members Thursday night and obtained by the Daily Pilot, attorneys Richard D. Pio Roda and Michael F. Dean of the Los Angeles-based Meyers Nave law firm wrote that an actual conflict of interest doesn’t have to arise for a board member’s loyalties to be tested.
The potential for a conflict is enough from a legal perspective to unseat Fitzpatrick, they posited.
“Based on the potential that the board member cannot, in every instance, discharge the duties of both planning commissioner and district board member with an undivided loyalty, the offices are incompatible,” the memo stated.
The district’s and commission’s jurisdictions overlap, the memo explained.
With its authority over Costa Mesa’s general plan, land-use permits, zoning and granting exceptions for new facilities, the Planning Commission can hold sway over future Sanitary District projects.
On the other hand, the Sanitary District’s sewage connection requirements could prove cumbersome for a favored commission project, or decide it will adversely affect the district’s sewer system and veto it, according to the memo.
Fitzpatrick was first told in a 2010 memo by Sanitary District counsel Alan Burns that his two roles could be in opposition.
But at Thursday’s meeting, Fitzpatrick said what he took from that opinion was that a conflict is possible, not absolute.
Sure, anything’s possible, Burns said Thursday, “but it’s my opinion that [the state attorney general’s office] would find the two offices incompatible.”
board member Art Perry, who requested for this latest legal opinion after attending an ethics seminar over the winter, asked Fitzpatrick on Thursday if he would be willing to resign then and there.
Fitzpatrick didn’t answer.
District officials estimate it could cost up to $40,000 in legal fees to take the issue to a judge.
Over the next 40 minutes, Fitzpatrick defended his stance.
He accused the board of springing the issue on him at the last minute, even though it was on the board’s agenda, the Daily Pilot quoted him on the topic last week and the board approved securing the second legal opinion in December.
Fitzpatrick asserted that the board conspired against him and got board President Bob Ooten to admit that he had talked with not only him, but at least one other board member about the issue ahead of the meeting. Fitzpatrick argued that those discussions could violate the state’s open-meetings law; however, Burns said he would need more information to make that determination.
Fitzpatrick also asserted that Perry shopped for an attorney to get an opinion that was favorable to his on the conflict issue. The same Meyers Nave attorney who hosted the ethics seminar over the winter also provided the legal opinion against Fitzpatrick.
“Where’s your opinion?” board member Jim Ferryman barked back at Fitzpatrick amid the heated back and forth. “If this is so dear to you, go get your own opinion. I bet you anything the [Costa Mesa] city attorney did give you an opinion and you didn’t want to hear it.”
The tension was palpable.
But in the end, neither side budged. The debate began going in circles, and an exasperated Ferryman called for an adjournment.
“I’m sick of this gibberish,” he said.
After a few more parting words, the arguments ceased and Fitzpatrick went silent.
The board will consider during a closed session at 9 a.m. Tuesday if it should ask the state attorney general to allow the board to take the case to a judge for a final determination.