Xavier Avila has hired the Law Offices of Michael J. Lampe to defend him in a case concerning his holding two allegedly incompatible public offices.
Lampe has been notable in his past work around the City of Tulare, including suits against the City of Tulare, Tulare Local Healthcare District, and members of the Tulare City Council.
The law firm of Melo and Sarsfield sent Avila a letter on March 3 stating that he was violating state law by holding seats as a Trustee on the Tulare Local Healthcare District board and as the Board Chair of the Tulare Public Cemetery District.
The letter states, “Recently, while still holding your TLHCD seat (Tulare Local Health Care District), you were appointed to the Tulare Cemetery District in December 2019. By accepting this appointment, you forfeited your seat on the Board of TLHCD. … This is violative of California state law.”
Lampe responded in a letter dated March 5, “We do not agree with your contention that Mr. Avila holds incompatible elected offices.”
Avila states it is not against the law to sit on two boards and that Melo has provided no evidence that it is illegal. Jason Howard, legal counsel to the hospital board, said that he found no incompatibility with him sitting on two boards, according to Avila.
“This is not a board issue and Howard is not going to give Avila personal legal advice. Howard represents the hospital board and that board has nothing to do with the fact that Xavier sits on the Cemetery Board,” Melo said.
Tulare City Council member Steve Harrell recently stepped down from his seat on the hospital board because a ruling by the state’s attorney general said it was a conflict of interest. But Avila said his case has different standing.
“I don’t see an opinion from the attorney general saying that sitting on a hospital and cemetery board is incompatible,” said Avila.
Melo disagrees saying they have a good basis for their case. In Saratoga a man was sitting on the city’s Planning Commission Historical District Board and the city’s cemetery district. The legal opinion was that the man had to step down from one of the boards.
In response to Lampe’s letter, Melo will be sending a quo warranto to the California Attorney General next week, and will be serving Avila simultaneously.
If Melo receives permission, she will be stepping into the attorney general’s shoes while pursuing the suit against Avila. Melo will not be representing their law firm but rather the state.
Once the case is filed it will be listed as “The People versus Xavier Avila” with “The People” being the plaintiff and Avila being the defendant.
There are three possible outcomes to the quo warranto application to the California’s Attorney General’s office, Melo said.
In the first, the office could deny permission to go forward with the case.
In the second, Melo could receive permission to sue Avila to force him to step down from the hospital board.
In the third, the attorney general’s office could opt to twist Avila’s arm so that he steps down from one of his seats and avoids formal legal action.
Melo said that the chances are “very, very good” that they will get permission from the AG to proceed on the state’s behalf.
In the event Avila loses the lawsuit, he would not have a choice about which seat to keep; his seat on the hospital board would be vacated and he would be liable for the Melo and Sarsfield firm’s fees.