Los Osos manager sidestepping duties

June 26, 2014

By JOSH FRIEDMAN

The general manager of the Los Osos Community Services District has worked for the agency since last October but has only been sworn in to do so since earlier this month, a violation of the California Constitution.

Los Osos CSD General Manager Kathy Kivley waited more than seven months to take an oath of office and only did so when prodded by a district resident. District legal counsel Michael Seitz says the matter is of little significance, but critics point to a California regulation that indicates the lapse could cost Kivley thousands of dollars.

Article 20, Section 3 of the California Constitution lays out the rules public employees must adhere to regarding oaths of office. The section states that all public officers and employees, with the exception of inferior ones, must take the state’s oath of office. It defines public officers and employees as those working for the state or for any county, city, district or authority.

California’s Government Code elaborates on the rules set forth in the state constitution. Government Code Section 1360 states that officers must take the oath drafted in Article 20 of the California Constitution before beginning the duties of office. Government Code Section 1363 specifies that officers of independent special districts must take their oaths inside the office of the district’s clerk or secretary.

Kivley began work as the head of the Los Osos CSD on October 14. She took her oath of office on June 4, two days after Los Osos resident Tom Salmon pointed out the lapse in a letter calling for Kivley’s termination.

Seitz said Kivley took the oath of office strictly as a prophylactic measure.

In an email to Seitz, Salmon noted a section of the government code that states public officers cannot receive pay until they take the oath of office.

“No compensation nor reimbursement for expenses incurred shall be paid to any officer by any public agency unless he has taken and subscribed to the oath or affirmation required by this chapter,” Government Code Section 1367 states.

Setiz responded in an email saying that a California court decision overruled the provision of the state constitution requiring public officers to take oaths of office. But, Seitz refused to name the court case when asked to do so by CalCoastNews.

Kivley makes $90,000 annually in base salary. She would have earned nearly $60,000 in base pay by the time she took her oath of office.

A 1997 opinion issued by the California attorney general opinion appears to back the case that Kivley is required to take an oath. The opinion stated that, based on Article 20, Section 3 of the California Constitution, even an appointee to a county mental health board must take an oath of office.

Seitz said the opinion is not applicable to a general manager of a community services district.

Los Osos CSD administrative assistant Ann Kudart said no previous general manager of the district took an oath of office.

But, other districts require that their general managers take the oath. Recently, both Tom Geaslen, former Oceano CSD general manager, and Rick Koon, general manager of the Cayucos Sanitary District, took the oath of office when instructed to do so by staff members and the public.

Critics of Kivley say the oath of office flub is one of multiple signs that she is not the accomplished public administrator that her resume portrayed her to be.

When the Los Osos board hired Kivley last October, CSD directors praised her qualifications, which include a degree in public administration and a decade of experience in city management.

Prior to moving to Los Osos, Kivley served as the city manager of Atwater in Merced County. But, less than a year and a half into her four-year contract, the Atwater City Council fired Kivley.

Kivley left Atwater with a negative balance in the general fund of $3.7 million, according to the Merced Sun Star. A member of Atwaters’s planning commission told the newspaper that the termination of Kivley took a heavy weight off the city’s shoulders.

When Kivley applied for the Los Osos job, however, she checked a box on her application saying that she had never previously been terminated from a position. She signed the application, agreeing that all of her statements were true.

During Kivley’s hiring board members made no mention of the misstatement on her application.

Seitz said a board subcommittee contacted her former employers, including Atwater, and conveyed its findings to the remainder of the board prior to Kivley’s hiring.

“The board was fully apprised regarding Ms. Kivley’s departure from her employment with the city of Atwater,” Seitz said.

In Kivley’s contract with Los Osos, the district agreed to pay for her moving expenses.

The hire irked several residents who supported a candidate for the general manager position who lives in Los Osos. San Luis Obispo utilities manager and Los Osos resident Ron Munds applied for the position and would have taken a hefty pay cut to become the CSD general manager.

But, the board selected Kivley. CSD Director Marshall Ochylski said Kivley’s qualifications stood out among a good pool of candidates.

Kivley is now tasked with several challenging duties, which include winding down the district’s trek out of bankruptcy and managing the district’s dwindling groundwater supply.

Kivley did not respond to an email requesting comment. A CSD staffer said she is out of the office for the majority of this week an unable to respond to media inquiries.