A.G.: Sanitary District can sue Fitzpatrick

The state attorney general has ruled that the Costa Mesa Sanitary District may sue to remove one of its directors because of a potential incompatibility in his prior service to both the district and the city's Planning Commission.

Kamala D. Harris and Deputy Attorney General Daniel G. Stone wrote in their public opinion Tuesday that Jim Fitzpatrick, in accepting a four-year reappointment seat to the Planning Commission in January 2011, may have forfeited his concurrent seat on the district's board of directors.



An earlier headline on this story incorrectly stated that Jim Fitzpatrick couldn't choose to remain the Sanitary District board. In fact, the attorney general said only that the district could proceed with a lawsuit against Fitzpatrick in an effort to remove him.


Fitzpatrick was elected by voters to the district in November 2010. He served on both boards from December of that year until May 2012, when he resigned his planning seat in an effort to keep his district position. Though he felt the action was adequate, the board did not and continued to seek legal action against him.

Bob Ooten, the district's board president who is paying part of the legal costs in the case, applauded Harris' opinion.

"The basic opinion was Fitzpatrick did not win on a single point," he said. "They actually increased their concerns for his incompatibility of office."

He called the opinion "a substantial verification of what the board of directors has asked for."


"That's what I've contended all along. It's not [Fitzpatrick's] choice which office he holds," Ooten said.

Fitzpatrick said he was targeted by political opponents who did not like the questions he was asking about district policies.

"I am disappointed the board decided to call a short-notice special meeting to deliberate in closed session, behind closed doors, so close to the holidays when few members of the public are focused on government," he said. "The voters who elected me like me. Too bad some of my board colleagues do not."

He also pointed to Councilman Gary Monahan as an example of someone who previously served on the City Council and a special district at the same time.

In a Costa Mesa Sanitary District news release, counsel Alan Burns wrote that the attorney general's opinion "makes it clear that an office holder cannot pick and choose which compatible position is kept, but that by 'leapfrogging' positions, the first incompatible office held is forfeited when the second one is accepted."

Both positions pay a stipend, but neither position is full time.

Assemblyman Allan Mansoor (R-Costa Mesa) said in a letter Wednesday that when the Legislature convenes in January, he will introduce legislation to show that service on a city planning commission is inherently compatible with service on a sanitary district.

He said the attorney general's opinion defined "legislative body" too narrowly as it applied to a Health and Safety code section.


Mansoor said Assembly Bill 198, passed in 1970, is evidence that any "activity within the scope of a city's legislative body is compatible with service as a sanitary district director."

The Sanitary District directors are holding a special closed-session meeting to discuss their options at 5:30 p.m. Thursday at the district's headquarters, 628 W. 19th St., Costa Mesa. The five directors will also conduct their regularly scheduled meeting.

In his Planning Commission resignation letter, Fitzpatrick contended that his fellow directors were using ratepayer funds — tens of thousands of dollars — to sue him personally and as a director.

"I have become a political piñata and it needs to stop," he wrote. "Our ratepayers shouldn't have to bear the cost of political grudges."

Twitter: @bradleyzint