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.”
https://www.documentcloud.org/documents/20517701-avilamelo-sarsfield-lampe-response
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.
There is something quite distasteful and frankly quite distrustful about Ms. Melo possibly wearing two different coats in her quest of taking Mr. Avila down. First her wearing the coat of a litigant who is pursuing this lawsuit against Mr. Avila via her own law firm and then possibly changing her coat to act as Attorney General if needs be. If Ms. Melo does indeed jump ship from her own law firm in order to become the “acting Attorney General ” and Mr. Avila loses he then would be required to pay the Melo And Sarsfield firm’s fees…. thus insuring that her firm would benefit financially. Rather like stacking the deck. What is next? Will she then make herself the jury and judge in this matter as well? I hope the “current” Attorney General decides NOT to pursue this matter. If the City of Tulare and the Tulare Local Healthcare District as well as the Tulare Public Cemetery District see no conflict in Mr. Avila holding seats on both boards then the Attorney General should concur. Let’s hope he does.
Maggie isn’t wearing two different coats. She has alerted the Attorney General’s office of a possible violation of public office. That’s what the AG is in charge of, overseeing elected offices and public boards. But the AG office cant monitor the tens of thousands of public boards in California. If the AG thinks the state needs to sue Xavier to get him to follow the law then the AG would do it themselves but he or she doesn’t have the people or time. So Maggie will step in the AG’s shoes to do it for them. If Xavier loses he will have to pay Maggie for her time. He would have to pay the AG if the AG had time to pursue the case. The AG works for “the people” but sometimes needs help.
All of which is why Mr. Avila, if he looks at this rationally, should be resigning from the Cemetery Board and concentrate on the hospital board (where he and others have admittedly turned it around). Why fight tooth and nail to stay on the cemetery board and have nothing but headaches of wrongly buried bodies, missing bodies, etc. Unless there is something else going on? Who knows? But imagine how Mr. Avila, who by all indications appears to be positioning himself for a run higher political office, will have to explain the future, hypothetical court case entitled “People of the State of California v. Xavier Avila?” The political campaign flier almost writes itself. If he had any sense at all, he’d declare victory and resign, like the other fellow did and focus on the hospital.
Commander
The problem with the cemetery board is not people fighting to stay on but people fighting to get off . In the preceding months before I was appointed. A total of 7 people quit . Two more have quit since I got on . By the way if something was to happen, it’s the hospital board that I would have to resign from not the cemetery board . I don’t get to pick. I don’t consider myself fighting tooth and nail to stay on either board . Sending a short response from Mike Lampe isn’t what I consider fighting. My personal life would improve if I quit both boards so it amusing to see that some people think serving on a public board is all sunshine and rainbows . I see you are politically astute. You make a good point about someone running for higher office. Someone wanting a political career might just agree with your advice. My opinion is too many politicians take the easy way out to protect their image. That’s not me . That’s why most don’t interact with the public on social media. It’s too risky for their career. They play it safe . The problem is too many politicians put their interests first instead of doing what’s right . I honestly don’t have any plans to run for a higher office but if I do , I’m not going to be a career calculating fake . The people that know me , will tell you I act the same in private as I do in the public. I have unfinished busyness with both the hospital and the cemetery and until that’s completed I’m not quitting anything. I appreciate your comments. Thank you
The only thing “distasteful” is that Mr; Avila is just like the obnoxious little kid we all knew in school trying to hog all the goodies. Why does he feel he and he alone can save the cemetery board? One elected/appointed position is enough for any citizen. Otherwise, diversity of representation of all the community suffers.
If you think serving on a public board is like receiving those sweet little goodies back in school, then you obviously have never served on one . It’s actually a burden. Ask any of my fellow hospital board members about that , ask them how many times we got home at 1:00 o’clock in the morning after a long closed session and then have to go do our day jobs with a few hours of sleep . The hospital board pays nothing. The cemetery board pays 100 dollars per meeting that I don’t take . The people I serve with do it out of a sense of duty to ones community. The City Council of Tulare has some 40 positions on various boards and committees that they can’t fill because no one wants to serve. I also serve on the police review board where sometimes we had to cancel a meeting because of a lack of a quorum. Perhaps you can get on one of those , if you feel like someone is hogging everything. Since you are to afraid to leave your real name I doubt you will even try . Be thankful that people are willing to serve. Their are a lot of people serving on more than one board . The problem isn’t the serving on two boards the problem is not enough people wanting to serve on one .
This is how quo warranto works.
Also, in civil suits against an agency, the loser always pays the plaintiff’s attorney. Nothing untoward there, that’s what gives the agency incentive to do things correctly in the first place.
Why doesn’t Melo go after Vander Poel who appointed Avila to the cemetery board….it was his call to make and if he broke the law in doing so she should go after him to force him take Avila off the board. Just asking the question.
Vander Poel cannot remove anyone off of a public board even if he appointed them. Only the Attorney General can. Of course Vander Poel could go to the meetings and demand the cemetery is better run. They are all his constituents.
That’s too bad….it would have been an easy fix. I agree that Vander Poel should be demanding publicly for more and better oversight in cemetery operations. I hope the Attorney General is the one who makes the decision and not make Melo the “acting AG”. That’s like the fox guarding the hen house! I know you and others disagree.