Tulare County DA Files to End Hospital Board Impasse

Any debate over Senovia Gutierrez’ status on the Tulare Local Healthcare District’s Board of Directors could soon be solved, if the Tulare County District Attorney’s office has its way.

A petition filed in Tulare County Superior Court on Monday, September 11, seeks for a ruling to force board member Richard Torrez to recognize Gutierrez’ position on the board.

Torrez and Healthcare Conglomerate Associates, the contractor which oversees day-to-day Tulare Regional Medical Center — and Linda Wilbourn, until her resignation from the board — have contended that Elections Code Section 15400 meant Gutierrez couldn’t become a board member until the board declares her one.

Because they contend that Gutierrez isn’t a member of the board, they also claim that two special board meetings held by board members Kevin Northcraft, Mike Jamaica, and Gutierrez were invalid and unlawful.

Torrez and Wilbourn didn’t attend those meetings. They also didn’t attend the board’s most recent regular meeting — Wilbourn resigned and Torrez didn’t appear.

The petition names Torrez as a defendant, with Bruce Greene and his law firm, Baker Hostetler, as respondents. Greene and his firm represent HCCA and Benzeevi.

They’re stating that Torrez and Greene are purposefully blocking Gutierrez from the board.

“Elections Code 15400 states that the governing body ‘shall’ declare as elected the person having the highest number of votes. This is a ministerial announcement of a fact that has already occurred, not an invitation for the Board to decide who may serve on the Board or when a publicly elected Board Member may assume their lawful duties,” the petition from the district attorney’s office reads.

“In denying and delaying Ms. Gutierrez her seat, the respondents have unlawfully denied Senovia Gutierrez the right to her elected office, as well as subverted the democratic decision of the Citizens of Tulare County,” it continues.

The filing appears to make the district attorney’s office’s position clear: Gutierrez has been a board member since she was sworn in.

“Ms. Gutierrez is currently a fully empowered Board Member, and she has been since the day she took her Oath of Office on July 25, 2017,” it reads.

It also makes a new claim that even though Wilbourn tendered her resignation before the board’s most recent meeting on August 23, stating that she would be resigning at noon, Greene later sent a message claiming that Wilbourn really meant to resign the following day at noon.

“Board Members Linda Wilbourn and Richard Torrez, and their legal counsel, Bruce Greene, further exacerbated the situation by attempting to orchestrate the cancellation of the meeting on August 23, 2017,” the claim reads. “[…] at 4:00pm, Mr. Greene retroactively claimed that Mrs. Wilbourn really intended to resign the next day, which would leave the meeting without a quorum, if one did not count Ms. Gutierrez as a Board Member. This was yet another blatant attempt to deny Ms. Gutierrez her rightful position based on the fiction that the Board must somehow approve her election.”

Behind The Scenes

Declarations filed by Jamaica and Northcraft, accompanying the petition, lay out their versions of events throughout the controversy.

Both Jamaica and Northcraft claim that Northcraft had sent requests to officials with HCCA to add items to the board’s agenda to prevent the controversy from starting in July, but those requests went unanswered and ignored.

“I first requested the declaration of the election results be added to the agenda on July 21, 2017,” Northcraft states in his declaration. “Despite my request, HCCA failed or refused to add to the agenda an item to declare the election results and Ms. Gutierrez’ victory pursuant to Elections Code section 15400.”

Hospital officials added the item — but as a “chair announcement,” not an open session item.

“I was worried HCCA or other members of the Board would claim at the meeting (as they ultimately did do) that Ms. Gutierrez could not be ‘declared’ the winner of the election because the agenda item had not been agendized as an open session item,” Northcraft wrote. “For that reason, I sent a second email to HCCA on July 24, 2017 again requesting that the item be placed on the agenda.”

On August 23, Northcraft and Jamaica both stated they received emails from Greene notifying them of Wilbourn’s resignation at 3:07pm.

A board meeting was scheduled at 4:00pm that day; because Wilbourn had resigned, it had been cancelled, according to a notice posted at Evolutions Gym in Tulare, where the meeting was scheduled to be held.

Jamaica claims that he received an email at 4:00pm from Greene stating Wilbourn had made a mistake — the notices that were created by hospital staff and posted at Evolutions were wrong. Wilbourn meant to resign the following day.

Following the Will of the Voters… Eventually?

The hospital’s website still shows Dr. Parmod Kumar as a board member, though he was recalled in July.

The board wasn’t able to declare Gutierrez a member at the the July 27 meeting, after Wilbourn stated that divergent legal opinions meant she would need to defer on the issue of declaring Gutierrez a new board member. That’s because the item, though on the agenda, was placed as a “chair announcement.”

“Because this was a special recall election, not a regular election, there is a question as to whether we have to certify this as a regular board agenda item — where it is on your agenda today is #2, as a chair announcement, it’s not in the body of the agenda,” Wilbourn said at the meeting.

That resulted Northcraft and Jamaica leaving the meeting. If they wouldn’t recognize Gutierrez, they wouldn’t have an agenda.

Northcraft and Jamaica have always taken the position that Gutierrez became a board member when she was sworn in.

“She’s qualified, she’s the successor, she’s the board member,” Gutierrez’ attorney, Dennis Mederos, said at the time. “Now they’re taking the stance that the board has to certify the election. It’s the Registrar of Voters that certifies the election, not the board. The board’s requirement is they announce the election. [Section] 15400 says they are to announce the results of the election. There’s nothing in that code section that says she’s not a board member because they refuse to announce it.”

Gutierrez, Northcraft and Jamaica would later go on to hold two board meetings by themselves. Wilbourn and Torrez didn’t attend either one, though Northcraft and Jamaica claim to have notified them, and HCCA called the meetings illegal and without any legal weight, since they didn’t consider Gutierrez a board member that could participate in meetings.

“The meeting that was held had no legal authority whatsoever. It’s not a matter of opinion, but rather is clearly delineated by the law and practice. The individuals involved have been notified of that fact multiple times by legal counsel. They are choosing to deliberately expose themselves to legal risk,” Dr. Benny Benzeevi, CEO of HCCA, told the Voice at the time.

“The actions taken by the individuals involved are illegal, are harmful to the business of the District, and each of them individually may have exposed themselves to substantial civil liabilities as well as potential criminal liability for falsely portraying themselves as a governmental entity. Rest assured that all avenues available under the law will be pursued aggressively by the appropriate authorities.“

Tulare County District Attorney Tim Ward’s office appears to be one authority that doesn’t quite agree.

“Every action taken without the consent of the elected board does irreparable damage to the District, the constitutional rights of the Citizens of Tulare County, and the democratic process in our County,” the petition reads.

The matter will be heard in court September 15 at 8:30am, in Department 1 of the Tulare County Superior Court, 221 South Mooney Blvd, Visalia.