Xavier Avila targeted for holding seats on Tulare hospital, cemetery boards

Xavier Avila sitting on the board of the Tulare Public Cemetery District

A local law firm has accused Tulare resident Xavier Avila of violating state law by holding seats on both the Tulare Local Healthcare District board and the Tulare Cemetery District, according to a letter sent to Avila today.

The Visalia-based law firm, Melo and Sarsfield, stated that they would take action if he did not resign his seat on the healthcare district board.

“Recently, while still holding your TLHCD seat, you were appointed to the Tulare Cemetery District in December 2019. By accepting this appointment, you forfeited your seat on the Board of TLHCD. You are currently exercising elective/appointive posers in both seats simultaneously. This is violative of California State Law,” the letter states.

Steve Harrell, a Tulare City Councilmember, recently resigned from the healthcare district board after receiving a similar letter from the same firm.

In the letter to Harrell, the firm cited an Attorney General opinion that found a member of a healthcare district could not simultaneously serve on a city’s Planning & Economic Development Commission due to a potential for conflict between the two roles.

Avila states that his two public seats are compatible, but the firm contends that they are not.

Marguerite Melo, one half of the Melo and Sarsfield team, claimed that Avila needed to resign from the healthcare district board as he effectively vacated it when he was sworn in to serve on the cemetery district’s board; however, Avila could theoretically step down from the cemetery board without issue, she said, as that would still comply with the intent of the law.

Board members have a “duty of loyalty” to the boards and institutions they are serving, Melo said; when one resident is on several boards, the potential for a conflict of interest expands.

Melo gave the example of a recent stabbing that occurred at the Tulare Cemetery. If the stabbing victim was taken to Tulare’s hospital and the victim’s family filed suit over his death, each entity could blame the other: the hospital could say the victim died because of security issues at the cemetery, while the cemetery could blame care provided by the hospital.

Even if a conflicted board member were to abstain from the vote, Melo said that wouldn’t solve the issue: a conflicted representative’s constituents are not well-served when their representative has a divided loyalty.

If the Melo and Sarsfield suit proceeds and a court rules Avila can only keep one seat, he would be forced off of the healthcare district board, and potentially liable for legal costs.

In the event Avila does not resign and loses the lawsuit he will not have a choice about which seat to keep. His seat on the hospital board will be vacated.

Avila will also be liable for Melo’s legal fees. Its not clear if Avila will seek out legal representation and pay his own legal costs or if either of the boards he sits on will be liable.

 

Avila will fight

“I’m a fighter,” Avila said. “I’m not resigning.”

“I don’t see an opinion from the attorney general saying that sitting on a hospital and cemetery board is incompatible. If I get an opinion from the Attorney General saying the two seats are incompatible I will resign immediately.”

Avila said that it is not against the law to sit on two boards and that Melo has provided no evidence that it is illegal.

When Harrell was forced to resign, Trustee Senovia Gutierrez asked the board’s legal counsel, Jason Howard, if Avila was breaking California law by sitting on the Cemetery and hospital boards. Howard said he found no incompatibility with Avila sitting on two boards.

But Melo said the law is very clear when it comes to what makes someone incompatible – when their loyalties are split.

According to Melo the attorney general is in charge of overseeing elected officials and that she is in the process of getting authorization from the attorney general’s office to pursue Avila’s case.  Once that happens, she says, she will be “filling the shoes” of the Attorney General and will file the lawsuit.

Melo said that getting this type of permission is routine.

In Depth: Tulare Regional Medical Center

14 thoughts on “Xavier Avila targeted for holding seats on Tulare hospital, cemetery boards

(Commenter ID is a unique per-article, per-person commenter identifier. If multiple names have the same Commenter ID, it is likely they are the same person. For more information, click here.)

  1. Why does a small group of people try to control all the boards? Don’t be greedy.

  2. I have to agree..Leave Xavier Avala alone…County Supervisors are ALL on many many boards…Noone seems to think or care if conflict or not…Making up a “what if” scenario by attorney because ???? What is THE POINT ??? Isnt Alberto Aguilar on more than 1 Board ??

  3. If it turns out that there is indeed a law that prohibits a person from serving on two elected/appointed public boards at the same time then Mr. Avila will need to resign from one of the two boards. Until the Attorney General has spoken Mr. Avila could rightfully hold off on turning in a resignation. In the meantime I’m sure that he has consulted with attorney’s from both boards. Tulare’s City Attorney deemed that there would be no conflict in holding two seats on public boards at the same time and he must have had some basis to make that call. Time will tell. The ball apparently is now in the Attorney General’s court. What I really would like to know is just who is the driving force behind this lawsuit, who is paying this law firm for their services. What’s the story behind the story so to speak.

  4. Cal. Gov’t Code § 1099:
    “(a) A public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible.

    Offices are incompatible when any of the following circumstances are present, unless simultaneous holding of the particular offices is compelled or expressly authorized by law:

    (1) Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body.

    (2) Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices.

    (3) Public policy considerations make it improper for one person to hold both offices.

    (b) When two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second. This provision is enforceable pursuant to Section 803 of the Code of Civil Procedure.”

  5. Follow the money. The people pushing this don’t have that kind of money to proceed with this.
    Xavier would be required if AG make that opinion from the Hodpital Board (which by the way DOES NOT run the hospital). So which board would lose 2 members? Think about it!!!

  6. Xavier Avila is an asset to the community in both positions that he serves on. To claim this is a conflict of interest is someone grasping at straws to control everything in our city.

    As for the Valley Voice, you have turned into nothing but a liberal rag of reporting.

  7. Question of the day: why did another Cemetery Board Member, Alberto Aguilar delivered the letter to the cemetery today? Was he representing the attorneys or himself. Sort of a conflict of interest for another sitting board member to do that I would think. Plus Alex Gutierrez went along to video it. Seriously!

  8. Personally I have trouble seeing how there is a conflict of interest, being on the two boards.
    I think the stabbing in the cemetery is a poor example.
    e.g. What if he owned a business (not related to health care) where someone was injured? Would it be a conflict of interest if the injured were sent to Tulare’s hospital? Should he be forced to sell the business to remain on the hospital board?

  9. It would seem to me that, ANYONE prior to Mr. Avila being appointed to either board, that held position on multiple boards , sets the rule on this? Find something more worthwhile to waste time and money!

Use your voice

Your email address will not be published.