ABSTRACT: A letter from County Counsel Charles J. McKee to Susan Duncan Lee, Supervising Deputy Attorney General, California Attorney General's Office, Opinion Unit, dated October 30,2012, Re: Request for a Legal Opinion from the Attorney General on the Issue of Incompatibility of Offices is embedded. Highlights from the five-page letter are presented.
OFFICE OF THE COUNTY
COUNSEL
CHARLES J. McKEE
Susan Duncan Lee
Supervising Deputy Attorney General
California Attorney General's Office
Opinion Unit
October 30, 2012
Re: Request for a Legal Opinion from the Attorney General on
the Issue of Incompatibility of Offices
HIGHLIGHTS
As County Counsel for the County of Monterey I am requesting an expedited legal opinion from the Attorney General under California Government Code section 12519
QUESTION:
1. Are the offices of Supervisor of Monterey County (County), Supervisor of Monterey County Water Resources Agency (MCWRA), and Director of Monterey Peninsula Water Management District (MPWMD) incompatible with the office of Director of the Monterey Peninsula Regional Water Authority (MPRWA) joint powers agency?
DISCUSSION:
We understand the analysis for incompatible offices considers the following:
1. Are the offices in question public?
2. Would sitting in these offices create divided loyalties for the member? Is there a likelihood the member would need to recuse him or herself?
3. Does one seat have supervisory, auditory or removal powers over the other?
4. Do exceptions exist to the rule?
a. Exceptions include seats held by a public employee, advisory bodies and when holding the office is compelled or authorized by law.
It is our opinion that the exception for member agencies and
these statutory mandates are legal authorizations for a Monterey County
Supervisor to sit as a Director of the MPRWA.
ABSTRACT: On October 11, 2012, attorney Richard Glenn, The Thompson Law Office, wrote a letter to attorney Don Freeman, Monterey Peninsula Regional Water Authority (MPRWA) attorney Re: Monterey Peninsula Regional Water Authority (Authority) Issues. Attorney Glenn identified “a few legal issues I believe require the Authority's immediate attention,” including Mayor Pendergrass' Forfeiture of his MPWMD Ex Officio Seat, The County is Ineligible for Membership in the Authority, Invalid Chairmanship of TAC and Substantial Identity of Purpose. Recommendations:
1. Advise the Authority board and Mayor Pendergrass that he has forfeited his seat on the MPWMD board. He may now begin effectively working with his fellow mayors, without any conflict concern, in a focused effort aimed at resolving the Peninsula's water crisis.
2. Advise the Authority that it is not legally possible to admit the County as a member of the Authority. This means that neither Supervisor Potter, nor his successor, may serve as a director on the Authority board. The Authority/County relationship under an Integrated Water Management Plan pursuant to Water Code §10530 et seq., is specifically intended to be determined in due course under the JPA.
3. Advise the Authority board and David Stoldt that he may no longer serve as chairman of the TAC. Request that the board select an Authority director as chairman of the TAC, as soon as possible.
4. Advise the Authority board that it has assumed the responsibility on behalf of its municipalities for securing adequate future water supplies in a manner accountable only to its Cities' users. It may thus fully replace MPWMD in that role within the Cities. In this regard, MPWMD may not impair the Authority or its member Cities in securing adequate water supplies. Consequently, all discussions with MPWMD and other regional water entities and interests must be maintained at "arms length."
Attorney Glenn states “These recommendations are offered to assist you and the Authority in initially avoiding a Government Code § 1 099 quo warranto action under the auspices of the California Attorney General. They are also intended to eliminate related complications in any future litigation involving the Authority and MPWMD, MCWRA or others.” Attorney Glenn’s letter is embedded.
THE THOMPSON LAW OFFICE
Attorney Richard G. Glenn Letter to MPRWA Attorney Don Freeman
Re: Monterey Peninsula Regional Water Authority (Authority) Issues
Attorney Richard G. Glenn, THE THOMPSON LAW OFFICE, Letter to MPRWA Attorney Don Freeman Re: Monterey Peninsula Regional Water Authority Issues
ABSTRACT: On October 11, 2012, attorney Richard Glenn, The Thompson Law Office, wrote a letter to attorney Don Freeman, Monterey Peninsula Regional Water Authority (MPRWA) attorney Re: Monterey Peninsula Regional Water Authority (Authority) Issues. Attorney Glenn identified “a few legal issues I believe require the Authority's immediate attention,” including Mayor Pendergrass' Forfeiture of his MPWMD Ex Officio Seat, The County is Ineligible for Membership in the Authority, Invalid Chairmanship of TAC and Substantial Identity of Purpose. Recommendations:
1. Advise the Authority board and Mayor Pendergrass that he has forfeited his seat on the MPWMD board. He may now begin effectively working with his fellow mayors, without any conflict concern, in a focused effort aimed at resolving the Peninsula's water crisis.
2. Advise the Authority that it is not legally possible to admit the County as a member of the Authority. This means that neither Supervisor Potter, nor his successor, may serve as a director on the Authority board. The Authority/County relationship under an Integrated Water Management Plan pursuant to Water Code §10530 et seq., is specifically intended to be determined in due course under the JPA.
3. Advise the Authority board and David Stoldt that he may no longer serve as chairman of the TAC. Request that the board select an Authority director as chairman of the TAC, as soon as possible.
4. Advise the Authority board that it has assumed the responsibility on behalf of its municipalities for securing adequate future water supplies in a manner accountable only to its Cities' users. It may thus fully replace MPWMD in that role within the Cities. In this regard, MPWMD may not impair the Authority or its member Cities in securing adequate water supplies. Consequently, all discussions with MPWMD and other regional water entities and interests must be maintained at "arms length."
Attorney Glenn states “These recommendations are offered to assist you and the Authority in initially avoiding a Government Code § 1 099 quo warranto action under the auspices of the California Attorney General. They are also intended to eliminate related complications in any future litigation involving the Authority and MPWMD, MCWRA or others.” Attorney Glenn’s letter is embedded.
THE THOMPSON LAW OFFICE
Attorney Richard G. Glenn Letter to MPRWA Attorney Don Freeman
Re: Monterey Peninsula Regional Water Authority (Authority) Issues
ADDENDUM:
LIQUID BORDERS
Lawyers tussle over the role of the Peninsula mayors’ authority in the desal mess.
Lawyers tussle over the role of the Peninsula mayors’ authority in the desal mess.
1 comment:
I wonder how seriously the county counsel took the legal analysis and recommendations of independent attorney Richard Glenn before he drafted his letter to the AG. In the aftermath of the failed regional water project, it seems only prudent to take conflict of interest issues seriously. Does relying on exceptions to the rule really meet the spirit of the law as well as the letter of the law?
It seems the government officials involved here are more prone to get another legal opinion than to step back and determine what is in the interest of realizing a water solution to the overpumping of the Carmel River. Earlier lawsuit by the cities fighting the cease and desist order did not accomplish a solution to the water problem, but those involved keep repeating the same unproductive mistakes. When consultants and attorneys are the sole beneficiaries, as Weekly assistant editior Kera Abraham concluded, the ratepayers suffer the consequences of more delay and no progress.
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