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.