Governor Newsom’s Executive Order N-29-20 was put to the test Thursday, August 27, at the Tulare Public Cemetery District (TPCD) Board meeting.
The question at hand was – can a board member of a public district be prohibited from participating in a meeting by phone during the time of COVID?
TPCD Board Chair Steve Presant and board members Xavier Avila and Jim Pennington objected to Board Member Vicki Gilson participating by phone. Board Member Alberto Aguilar and several members of the public argued in favor of allowing Gilson to participate.
After much back and forth behind the scenes with several County Counsel lawyers, an hour into the meeting the answer arrived. Board Member Gilson could fully participate in the meeting by phone.
Caught by Surprise
A few minutes before last week’s Tulare cemetery meeting started, Gilson called this reporter’s phone and asked to be put on speaker with the intention of participating in the meeting. The phone was placed between Aguilar and Pennington’s seat as curiously no chair had been set up for Gilson at the dais.
Gilson explained that she had been exposed to COVID – 19 and was self-quarantining.
Gilson’s unexpected attendance by phone caused a flurry of activity between Board Chair Presant and County Counsel Aaron Zaheen. They quietly conferred at the dais then stepped outside, out of earshot of the public, to discuss the legality of her participation.
After calling the meeting to order Presant said that, with the advice from counsel, Gilson was welcome to listen to the meeting and make public comment but that she was not allowed to vote.
Aguilar asked to which code Zaheen was referring to justify barring Gilson’s participation.
Zaheen said that The Governor’s Executive Order N-29-20 authorizes local agencies to conduct telephonic or electronic meetings but does not require them to do so.
“What we are missing here is the proper noticing of the meeting,” said Zaheen. “If Trustee Gilson is allowed to participate then the public needs to be allowed.” But, he said, the public is not being allowed to participate in the same way as Gilson, which is a violation of the Brown Act.
Aguilar responded to Zaheen, saying, “Read his (the governor’s) order. He waived that.”
The order states that, “All requirements in both the Bagley-Keene Act and the Brown Act expressly or impliedly requiring the physical presence of members, the clerk or other personnel of the body, or of the public as a condition of participation in or quorum for a public meeting are hereby waived as of Mar 4, 2020.”
Valerie Alvarez, a member of the public, whose mother is buried at the cemetery, agreed with Aguilar. She said that the governor’s order superseded the Brown Act and specifically waived the 72 hour noticing period.
Zaheen told the public and Aguilar that they need to “take another look at the governor’s order.”
Alex Gutierrez, a Tulare activist, told the board, “The fact that you are not allowing her to participate speaks volumes. The blocking of Vicki is not new. The board denied her and Alberto from participating at the April 23 meeting but allowed the chair to participate by phone to a special meeting because he was in San Francisco.”
An hour into the meeting, and before any votes had been cast, Zaheen interrupted the discussion. He announced that lawyers working for Tulare County Counsel had been debating the issue and had come to the conclusion that Gilson could in fact fully participate in the meeting.
“Looks like I was a bit off key,” said Zaheen.
“It is the opinion of my office that a member of the public trying to communicate by telephone does not have to be recognized by the board. However, there is the ability for a board member to participate and vote via teleconference that has not been agendized 72 hours in advance. So I apologize.”
Mandatory “In-Person” Meeting
Though all public meetings in Tulare County provide the option to participate remotely, the TPCD has insisted on conducting in-person meetings.
In a press release a few days prior, Presant stated, “The meeting will require in-person attendance for the Trustees and public.”
According to Chair Presant, the decision to have an in-person meeting was made during a private discussion with board members Xavier Avila and Jim Pennington. Aguilar accused the three board members of violating the Brown Act by discussing TPCD business behind closed doors but Zaheen said that directors can privately discuss a meeting’s location.
During board comments Presant stated, “I have decided we are going to have an in-person meeting because of the group dynamics and because of the challenges of technology.” Pennington added, “I am thankful we can meet together and look at one another, share, and talk, and listen. Zoom drives me crazy.”
Aguilar responded, “Why do you insist on all of us being here and putting our health at risk? There is no excuse for it.”
The in-person meetings have been held to the consternation of the Tulare County Health and Human Services , which has been working with TPCD to utilize Zoom.
Carrie Monteiro, Tulare County public information officer for the Health and Human Services, reported to Your Central Valley last week, “We are still here in Tulare County seeing some of the highest rates of transmission in the state. The county is seeing a rate of transmission of 300 cases per 100,000 people, and roughly 40% of recent cases have been tied to gatherings.”
Can a public district hold its meeting in a church?
Questions arose from the public and Trustees Aguilar and Gilson about the appropriateness of holding a taxpayer funded public meeting on church property.
Presant said that the First Baptist Church offered the TPCD a space “so I took it.” The Tulare Cemetery District office, where meetings are normally located, was having electrical problems and is too cramped for social distancing.
County Counsel Zaheen said that the Brown Act does not give any guidance about location. He added that it is not a violation of the First Amendment if the cemetery meeting does not promote the church. “It’s just a location,” he said.
The church space was reported to be offered at no charge, but the district’s June payables list two checks for a total of $150 to the First Baptist Church. July payables are not yet available. Pennington explained that he directed district manager, Leonor Castaneda, to donate his TPCD stipend to the church.
Both Presant and Pennington left the public with the impression that they were not affiliated with First Baptist Church. Pennington flatly denied during public comment that he was on the church’s board of directors.
Presant is, in fact, an active member of the church and Pennington is the Director of Operations, according to the church’s website.
In an ironic twist, the church posted on its website, “Due to COVID-19 all Tulare First Baptist Church gatherings are now online.”
Latest in a series of attempts to kick Gilson off TPCD board
Presant, Avila, and Pennington’s attempt to prevent Gilson from participating in the August 27 meeting appeared to be a continuation of their efforts to vacate her seat.
In early March, Presant went to Gilson’s house, looked in her windows, and turned on her water to see if she was still living at the Tulare address. On April 23, Aguilar and Gilson were prevented from participating in the general meeting via telephone. On June 29 Presant sent Gilson an official letter from the district citing her absence at the April 23 meeting as the third meeting in a row she had missed, thus vacating her seat. On July 9 Presant called a TPCD special meeting to vote on vacating Gilson’s seat and requesting Tulare County Supervisor Pete Vander Poel appoint a new trustee.
The July 9 special meeting never took place. The cemetery closed the day before due to a staff member testing positive for COVID. Possibly because there was a paper trail showing that Gilson had in fact attended four meetings during the time period in question, the matter of vacating Gilson’s seat was not agendized again.
Now that Gilson cannot be prevented from attending meetings by phone it appears that the board members might be returning to questioning her official residence.
Avila stated in an unsolicited text to this reporter soon after the meeting, “Vicki Gilson lives in Missouri and when that truth comes out the people that defended her and insisted she legally served the cemetery board since January are going to be embarrassed.”
Avila is correct that a public cemetery board member must live in the district they serve and that Gilson and her husband spend time at their vacation home in Missouri. Nevertheless, Gilson’s official place of residence is their Tulare home, where they are registered to vote, pay their taxes, and have listed on their driver’s license. There is nothing in the code mandating how many months a board member must live at their primary residence.
One unresolved issue remains
Because of the breadth and length of the procedural challenges facing the TPCD, this article does not report on the substance of the meeting. To watch the TPCD meeting please go to Caring Cause – Stop the Neglect and do a friend request. Guitierrez routinely streams the meetings on the Caring Cause’s facebook page for the sake of transparency and so the public can stay safe.
The issue of Gilson’s residence and ability to participate by phone is now resolved. The one unanswered question is, how did Avila, Pennington and Presant coordinate their efforts to vacate Gilson’s seat, decide on conducting strictly in-person meetings, and move the venue from the district office to the First Baptist Church without violating the Brown Act open meetings laws?