2 seats, but where to sit?

COSTA MESA — The election of Councilwoman Katrina Foley to the Newport-Mesa school board raises an obvious question: Will she stay on the council and finish out the remaining two years of her council term?

Not so obvious is the answer. Foley hasn't decided whether she'll fill one or both seats. And if it's just one seat, she's not saying publicly which one she'd pick.

"The legal issues require analysis, and I am just trying to recuperate from the election, and I'll look through the legal opinions and do what's right for the community," said Foley, an attorney who has spent years volunteering in Newport-Mesa schools.

Foley and others are looking into the legal aspects of serving on the two boards before she makes the call.

"It has come to my attention that there are some legal issues regarding serving in both seats," Foley said in a text message to the Pilot. "Those issues need to be worked out and are in process. In the meantime, I'm truly grateful to all the volunteers who spend thousands of hours campaigning. On to the next challenge."

City Atty. Kimberly Hall Barlow said it's still not clear whether an individual may hold a council and school board seat at the same time.

"It's not a question in Costa Mesa's code; it's a question of whether the offices are incompatible under state law," she said.

Barlow said Foley is seeking counsel from the state attorney general's office.

There aren't many known examples. Although Gary Monahan sits on both the City Council and the Costa Mesa Sanitary District board, Barlow said, the sanitary district allows council members on the board.

Mark Petracca, chairman of the political science department at UC Irvine, said there is no uniform rule for all cities. It's a matter of municipal law, which varies among municipalities.

"It would certainly be unusual," he said.

Foley's decision would likely have the greatest impact on the balance of power on the City Council. Though the offices are non-partisan, she is the lone Democrat among Republicans and often challenges Mayor Allan Mansoor, a conservative headed for state Assembly.

Councilman-elect Jim Righeimer is expected to bring a strong conservative voice to the council and Foley has been urged to stay on, several sources have said, to provide a counterpoint.

Monahan and Councilman Eric Bever are expected to continue voting as a bloc, likely with Righeimer. Councilwoman Wendy Leece, also reelected Tuesday, is a conservative who has lately swung to Foley's side on conservative issues but often goes her own way.

Michael Collier, the four-year incumbent who lost his bid to retain the Trustee Area 2 seat to Foley, said a decision will have to be made fairly soon — at least before Dec. 7, when the council and the school board begin swearing in new members.

"I don't think she can hold both seats under the state Education Code," Collier said. "And either way, one group is going to be let down. And whether that's the school board or the City Council, nobody's sure yet. But she's going to have to tell one group differently. One group is going to be upset with her for not keeping her commitment."

If Foley is forced to choose, and elects to stay on the council, then Collier said he would be interested in applying for his own open seat.

"I would probably apply," Collier said. "There are 16,000 people who thought I did a good job."

The board could also stage a special election.

Newport-Mesa School Trustee Judy Franco, who was reelected Tuesday, said there is a potential for concern, but she is reserving judgment until all of the facts are in.

"There could be a potential for a conflict of interest," she said. "And I'm saying, 'could be.' I'm not saying 'there is going to be.'"

Foley, however, would always have the option of recusing herself from voting on matters that affect the city and district.

If Foley ends up picking the school board over the council, the City Council, like the school district, has the option of holding a special election or making an appointment.

Planning Commissioners Steve Mensinger, Jim Fitzpatrick and Colin McCarthy have been mentioned as possible nominees.

Monahan said not to expect the council to appoint Chris McEvoy, the high school math teacher who placed third in the election. McEvoy is viewed as a liberal.

"From a historical prospective, the first runner-up rarely gets appointed because he's been running against the people that just won, and they are not happy with each other," he said. "It's like rewarding your enemy."

Righeimer said he hasn't thought much about it, but he'd like to see many people apply for the position, even people he never heard of before.

"We got a city of 110,000 people, and if, in fact, she [Foley] decides to go, we want to make sure we have a full process," he said. "It's an opportunity for a lot of qualified people that would never think of running."

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