SLO County needs to appoint a replacement for Supervisor Adam Hill

July 10, 2020

OPINION by MICHAEL NOLAN

Are the members of the San Luis Obispo County Board of Supervisors above the law? The answer depends on the board’s response to the announcement that the 3rd District Supervisor Adam Hill will be unavailable to perform his public duties due to his voluntary commitment into an undisclosed mental health facility.

Under normal conditions, the board’s response to such an announcement would be limited.

But “normal conditions” ceased four months ago. Since 10 o’clock on the morning of Friday March 13, the county has been governed by a Proclamation of a Local Emergency “due to the existence of extreme peril to the safety of persons in the entire area of the county.”

The Proclamation by the County Director of Emergency Services is made “pursuant to the California Emergency Services Act (starting with Governments Code Section 8550 [through to Section 8669.7]) and Chapter 2.80 of Title 2 of the San Luis Obispo County Code and “invoke[s] all of the powers and mechanisms set forth in the California Emergency Services Act and in the San Luis Obispo County Code Chapter 2.80, and order[s] that: 1. All of said powers and mechanisms set forth in section [sic] 2.80 may hereafter be utilized by authorized personnel of the County of San Luis Obispo.”

With the proclamation, invocation, and order to use “all of the powers and mechanisms set forth” in Chapter 2.80, the Board of Supervisors is now required to address Section 2.80.140 of Chapter 2.80.

Specifically, subsection (e) of 2.80.140 requires the appointment of a stand-by county officer when “necessary.” The absence of Mr. Hill makes the appointment of a stand-by 3rd District County Supervisor necessary.

Subsection (e) states, “At its second regular meeting in each January, the board of supervisors shall review the status of all stand-by appointments, and if necessary fill vacancies as set forth hereinabove.”

The use of the words “shall review . . . and if necessary fill vacancies” means that the board must act, because “shall” is defined elsewhere in the County Code to be “mandatory.”

Of course, this duty would not be imposed if the board had followed the requirements subsection (e) of 2.80.140 and actually had appointed a suitable stand-by officer. But an inquiry to the County Administrative Office reveals that no such appointments have been made. And if, as required, the board reviewed the status of stand-by appointments at its second regular meeting in January, it did so without placing that item on the agenda, a clear violation of the Open Meeting Law.

The board can cure that failure by putting this matter on their next agenda.

However, the failure to act brings another section of Chapter 2.80 into play:

Section 2.80.130 makes it a misdemeanor for any person during a state of emergency or local emergency to “(1)Wilfully obstruct, hinder or delay any member of the emergency organization [which includes any county officer or employee] . . .  in the performance of any duty imposed upon him by virtue of this chapter;” and to “(2)Violate any of the provisions of this chapter,  . . ..”

If the board continues to violate section 2.80.040(e) without legal penalty, then we will have the answer to our question:  Are the members of the San Luis Obispo County Board of Supervisors above the law?

Michael Nolan is an attorney in Davis who was born in San Luis Obispo and raised in the Los Osos Valley.  He attended Mission Grammar and High School and graduated from San Luis Sr. High. While attending Cal Poly, he was an intern at the Office of the County Auditor-Controller and the Office of the County Clerk-Registrar of Voters.  


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Dave

Michael Nolan will be interviewed on KVEC 920 AM/96.5 FM this Tuesday from 4:05 to 5 p.m.


Stew Jenkins

Mr. Nolan is to be praised for pointing out the difficulty that the County Counsel has put the Board of Supervisors into.


It is the County Counsel’s job to read the Government Code and the County’s own Code of Ordinances to assure that the Supervisors know that every January they must, yes, must select stand-by replacements to fulfill their duties should one or more of them become unavailable during a local or state-wide emergency. The statutes Mr. Nolan points out, referenced in the County’s own declaration of emergency, have been on the books since the 1950s; expressly so that local government could continue to function for residents with all-hands-on-deck in the event of a biological or nuclear event. Can anyone point to a year during the current County Counsel’s service that this requirement has ever been brought to the Board or put on an agenda? No.


Besides selecting a qualified individual from the 3rd District (as required by law) to serve the constituents of that District until the Covid-19 emergency ends or the Board finds that Mr. Hill is again healthy enough to return to service; the Board should consider terminating the County Counsel’s contract for cause. What cause could be more important than putting each of them in risk of a misdemeanor. What cause could be more important than hobbling the Board of Supervisors’ ability to respond fully to the current epidemic by leaving a 5th of the population unrepresented. If any one of the Supervisors had a mechanic who refused to make repairs because their car’s engine only had one cylinder missing a piston, they’d find another mechanic.


Perhaps the Board should consider bringing in Mr. Nolan as County Counsel. At least he knows how to read the Government Code and the County’s own Code of Ordinances.


Eyes Everywhere

County counsel Neal has always been a joke. I could say more, spread rumors, share gossip, but I won’t. She’s a joke and everybody knows it.


obispan

The board majority should appoint a Third District stand-by supervisor. They should not however use this a a political opportunity. Adam Hill, and the policies that he supports, won the Third District. Korsgaden, a very nice person, got close because of increasing distaste for Hill. They should appoint a left-of-center moderate and when Hill gets better (?) he can come back and fulfill his term. Mr. Jenkins comes to mind.


Myself

You can bet your sweet bippy that if this happened to anyone else that hill and gibson would be screaming for a replacement, I’m thinking the BOS won’t do zip, I sent a letter into them and didn’t even get a go pound sand response back.


KAG2020

Call and talk to the secretary. Very hard to understand at times but very helpful and got right on the issue I had, called the business personally and straightened things out.


horse_soldier

How enlightening!

Where’s county counsel Rita Neal, shouldn’t she be the one crossing T’s and dotting i’s?

We’re paying Adam not to show up, and we’re paying her to let Adam roam free for months during a crisis?

We’d be better off without the both of them.


GoneFlyFishing

The letter of the law is so contrasting to opinion.

Good article, thank you Mr. Nolan.


Slosum

Not true” jimincambria”. The board has the power to replace/appoint in certain cases… and this is one of them. The replacement would be the person who had the next greatest votes in the current election. That would be Stacy Korsgaden. Check out the bi-laws.


Gordo

Discussions between Hill and the Governor’s office are taking place. If Hill has to resign, Governor Newsom has been asked to appoint Heidi Harmon to fill the seat until a special election is held next year.

Time for the folks in the Korsgaden camp to gear up for a lobbying effort on the Governor’s office and for a special election next year.


Eyes Everywhere

He can’t appoint Harmon. She doesn’t live in District 3. He’s more likely to appoint Howell.


jimincambria

Only the governor can appoint a successor to a supervisor in San Luis Obispo County. This is how Supervisor Compton’s predecessor got her job.


Kevin Rice

A stand-by is not a successor.


Sulla

Jimincambia is correct in normal times, but during a State of Emergency, Government Code Section 8638 allows for the appointment of stand-by officers to a local governing board, and Section 8641(d) requires standby officers “To fill the post for which he or she has been appointed when the regular officer is unavailable”. Section 8636 defines “unavailable” to mean when an officer is “either killed, missing, or so seriously injured as to be unable to attend meetings and otherwise perform his duties.” Each of these sections have been incorporated by reference in Section 2.80.140(a) of the County Code.


TKG

Well done Mike! Completely agree with you…