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The Turlock Irrigation District unanimously voted to authorize notice of appointment for the Division 1 Director position left vacant by the death of Phil Short.Sara Lima, TID General Counsel, gave a presentation to the TID Board and the audience regarding the facts on how the Board could fill the position.
According to California Government Code 1780, Lima said “it allows the Board to either appoint a new Director or call for a special election, that’s up to you.”
Legal Counsel did not inform the Board of a third option in the California Government Code 1780 that states if the TID Board takes no action within 60 days the County Board of Supervisors would decide on filling the position.
“The staff recommendation right now is, because of the time and cost of the special election, to appoint,” said Lima. “I haven’t been able to get any figures out of the Department of Elections at Stanislaus County. They haven’t done a special election in as long as they can remember and they don’t have any estimate of how much that would cost, the amount of time it would take, or even whether they pay for it, the County pays for it, or whether TID pay for it or there’s some sort of share.”
TID Director Santos asked if they (County) are going to get an opinion to counsel and when.
Lima said that they were going to get an opinion by the County but not sure when and would “dig a little bit deeper” on that.
TID President Charles Fernandes said “The other negative thing that we need to consider regarding an election is the fact the candidates that are interested that there’s a tremendous cost to them if in fact we decide to have an election.”
There are still two years left on the vacant position’s term.
Lima informed the Board that they may pursue an appointment but still call for a special election as long as it is before the 60 day time limit, November 26, 2009.
The staff recommendation was that requests of resumes and statements of interests be submitted by October 28th at 5pm. The TID Board would then choose an applicant for appointment at the TID Meeting on November 3, 2009.
TID Director Santos asked what the thinking of staff was to recommend having the short timeline.
Lima answered with she thinks it was just to expedite the process.
Director Santos made a statement saying “I’d like some discussion of a special election, the pros and cons of it. It seems like there’s a lot of interest in Phil’s seat.”
“My concern is two fold, like I mentioned to you before, is the cost factor; Whether it is the District or the County, I mean we as rate payers are going to pay for it one way or another. And then that could possibly discourage some applicants when they look at what their personal cost would be to go through an election.” said TID Board President Charles Fernandes. “The other negative, that I see, is the time delay. If we’re talking an election, what are we talking about, spring…?”
Director Michael Berryhill agreed with Fernandes and said “It just doesn’t seem feasible.”
When asked if Director Randy Fiorini had an opinion on it, Fiorini said “No, I think we’re in a good position to evaluate the talent and the applicants and make a good decision. The voters will have a chance from two years from now to render an opinion as well.”
Director Berryhill supported the notion to appoint by saying “That is the way we’ve done it before, twice in fact.”
Board President Fernandes asked for a motion and Director Fiorini read a prepared motion.
After the motion was second, David Fransen had to interrupt the vote by asking for public comment.
David Fransen asked why the agenda item was not “how to fill the position” but rather to agree on a singled out recommendation while not considering the alternatives. Legal counsel didn’t even mention a third alternative to fill the vacancy which is if the TID Board did not take any action, the Stanislaus County Board of Supervisors may decide on filling the position.
When Fransen asked the TID Board if they had previously met to discuss this and decided on appointing versus a special election, Director Berryhill answered simply by saying “It has not.”
Fransen also pointed out that legal counsel or other staff did not have the facts or data on a special election for the TID Board to consider and found it interesting that the Board would make a decision without taking in all the facts.
Director Berryhill believed that “Time is of the essence for one thing” and TID Board President Fernandes said “Staff made the recommendation and I think it appears that the Board has accepted it.”
Fransen went on to state his desire for a special election to get a representative who really wants the position and to put it into the voters hand.
“Again, I would request that you consider all the options to fill the vacancy as an item and then maybe go from there taking in all the facts of a special election and what the voters could want in a representative.”
No other comments were made and the TID Board of Directors continued with the prepared motion and voted unanimously to notify the public of their intention to appoint and that all interested persons must submit their resume and statement of interest in writing to the Secretary or Deputy Secretary on or before 5:00 p.m., October 28, 2009.
TID Board President Charles Fernandes and Director Rob Santos will make up a sub-committee who can meet after October 5, 2009 at 5pm, and will narrow down the applicants by making their top recommendations to the entire Board on November 3, 2009 when an appointee will be chosen (the same day two new candidates will be elected to the TID Board of Directors).
The applications and all attached information will be public record, will be discussed in public, and discussions between the TID Board of Directors and applicants will take place in a public open session meeting on November 3, 2009.
After the meeting, legal counsel Sara Lima clarified that the “staff recommendation” was TID General Manager/CEO Larry Weis’ recommendation.
When Lima was asked if the agenda item, recommending only one out of three alternatives, covered TID legally as they discussed other options that may have been considered while not notifying the public of those options or possibilities, Lima said that she feels and thinks the wording gave enough notice of the general discussion on how to fill the vacancy that may have took place.
Lima did not really have an answer as to why all the options were not put on the agenda to discuss with supporting data except that it is common that staff makes a recommendation and that the Board is given notice of the agenda and can request information.
After the TID Board failed to open up the discussion to the public before making a motion with a second, Lima said that it was an oversight and that public comments are usually requested.
TID Candidates Joe Alamo, Pamela Sweeten, and Ron Macedo attended the meeting and were amongst many rumored candidates for appointment.
Previously rumored candidate John Eisenhut confirmed his intentions after the meeting by saying “I’m a candidate for appointment or election.”
Public Notice:
CGC
CAL. GOV. CODE § 54954.2 : California Code – Section 54954.2
(a)(1)At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public. If requested, the agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. The agenda shall include information regarding how, to whom, and when a request for disability related modification or accommodation, including auxiliary aids or services may be made by a person with a disability who requires a modification or accommodation in order to participate in the public meeting.
(2)No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.
(b)Notwithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.
(1)Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.
(2)Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).
(3)The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.
(c)This section is necessary to implement and reasonably within the scope of paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution.
Filling Vacancy:
California Government Code Section 1780
(a) Notwithstanding any other provision of law, a vacancy in
any elective office on the governing board of a special district,
other than those specified in Section 1781, shall be filled pursuant
to this section.
(b) The district shall notify the county elections official of the
vacancy no later than 15 days after either the date on which the
district board is notified of the vacancy or the effective date of
the vacancy, whichever is later.
(c) The remaining members of the district board may fill the
vacancy either by appointment pursuant to subdivision (d) or by
calling an election pursuant to subdivision (e).
(d) (1) The remaining members of the district board shall make the
appointment pursuant to this subdivision within 60 days after either
the date on which the district board is notified of the vacancy or
the effective date of the vacancy, whichever is later. The district
shall post a notice of the vacancy in three or more conspicuous
places in the district at least 15 days before the district board
makes the appointment. The district shall notify the county
elections official of the appointment no later than 15 days after the
appointment.
(2) If the vacancy occurs in the first half of a term of office
and at least 130 days prior to the next general district election,
the person appointed to fill the vacancy shall hold office until the
next general district election that is scheduled 130 or more days
after the date the district board is notified of the vacancy, and
thereafter until the person who is elected at that election to fill
the vacancy has been qualified. The person elected to fill the
vacancy shall hold office for the unexpired balance of the term of
office.
(3) If the vacancy occurs in the first half of a term of office,
but less than 130 days prior to the next general district election,
or if the vacancy occurs in the second half of a term of office, the
person appointed to fill the vacancy shall fill the balance of the
unexpired term of office.
(e) (1) In lieu of making an appointment the remaining members of
the board may within 60 days of the date the district board is
notified of the vacancy or the effective date of the vacancy,
whichever is later, call an election to fill the vacancy.
(2) The election called pursuant to this subdivision shall be held
on the next established election date provided in Chapter 1
(commencing with Section 1000) of Division 1 of the Elections Code
that is 130 or more days after the date the district board calls the
election.
(f) (1) If the vacancy is not filled by the district board by
appointment, or if the district board has not called for an election
within 60 days of the date the district board is notified of the
vacancy or the effective date of the vacancy, whichever is later,
then the city council of the city in which the district is wholly
located, or if the district is not wholly located within a city, the
board of supervisors of the county representing the larger portion of
the district area in which the election to fill the vacancy will be
held, may appoint a person to fill the vacancy within 90 days of the
date the district board is notified of the vacancy or the effective
date of the vacancy, whichever is later, or the city council or board
of supervisors may order the district to call an election to fill
the vacancy.
(2) The election called pursuant to this subdivision shall be held
on the next established election date provided in Chapter 1
(commencing with Section 1000) of Division 1 of the Elections Code
that is 130 or more days after the date the city council or board of
supervisors calls the election.
(g) (1) If within 90 days of the date the district board is
notified of the vacancy or the effective date of the vacancy,
whichever is later, the remaining members of the district board or
the appropriate board of supervisors or city council have not filled
the vacancy and no election has been called for, then the district
board shall call an election to fill the vacancy.
(2) The election called pursuant to this subdivision shall be held
on the next established election date provided in Chapter 1
(commencing with Section 1000) of Division 1 of the Elections Code
that is 130 or more days after the date the district board calls the
election.
(h) (1) Notwithstanding any other provision of this section, if
the number of remaining members of the district board falls below a
quorum, then at the request of the district secretary or a remaining
member of the district board, the appropriate board of supervisors or
the city council shall promptly appoint a person to fill the
vacancy, or may call an election to fill the vacancy.
(2) The board of supervisors or the city council shall only fill
enough vacancies by appointment or by election to provide the
district board with a quorum.
(3) If the vacancy occurs in the first half of a term of office
and at least 130 days prior to the next general district election,
the person appointed to fill the vacancy shall hold the office until
the next general district election that is scheduled 130 or more days
after the date the district board is notified of the vacancy, and
thereafter until the person who is elected at that election to fill
the vacancy has been qualified. The person elected to fill the
vacancy shall hold office for the unexpired balance of the term of
office.
(4) If the vacancy occurs in the first half of a term of office,
but less than 130 days prior to the next general district election,
or if the vacancy occurs in the second half of a term of office, the
person appointed to fill the vacancy shall fill the balance of the
unexpired term of office.
(5) The election called pursuant to this subdivision shall be
held on the next established election date provided in Chapter 1
(commencing with Section 1000) of Division 1 of the Elections Code
that is held 130 or more days after the date the city council or
board of supervisors calls the election.
