Xavier Avila unsure he’ll fight potential suit over two boards

Hospital, cemetery board member Xavier Avila says he’s speaking with legal representation in response to a letter alleging his service to both boards is a conflict of interest

TULARE – The same threat that forced new Tulare city councilman, Steve Harrell to step down from the local hospital district board is attempting to claim another public official.

Tulare Local Healthcare District (TLHCD) board member Xavier Avila received a demand letter from the Law Offices of Melo and Sarsfield LLP two weeks ago threatening a lawsuit against him for also holding a Tulare Cemetery District board seat. The letter cites California Code of Civil Procedure section 803 that indicates a public official cannot hold two different seats in the same jurisdiction where a conflict of interest might come up.

The letter states that attorneys are already beginning to take action unless Avila resigns from the TLHCD board.

“We’re in the process of requesting permission from the Attorney General’s Office to initiate an action Quo Warranto against you for holding two incompatible offices,” the letter states. “Before initiating that formal court process, we wanted to advise you of our intent, so that you could immediately resign from the TLHCD seat.”

Harrell, who also served on the TLHCD Board of Directors, resigned his seat on Jan. 31 under the same threat of litigation. He had served on the board since 2017 in the aftermath of the failed former management of Healthcare Conglomerate Associates whose executives are now facing 40 felony charges for embezzlement, money laundering, conflict of interest and trying to influence a political campaign.

In Harrell’s case Melo referenced a 2018 ruling by Attorney General Xavier Becerra specifically citing a conflict of loyalties between the hospital districts and city councils. The ruling stated a member of the Southern Mono Healthcare District board of directors could not simultaneously hold office on the city council of Mammoth Lakes or the city’s Planning and Economic Development Commission.

Becerra wrote a 2005 legislative action codifying the rule of incompatible offices prohibiting anyone from holding two offices if “there is a possibility of a significant clash of duties or loyalties between the offices” based on jurisdiction. In Harrell’s case, the hospital district envelopes all of the city limits, according to maps at the Local Agency Formation Commission, which oversees and settles jurisdictional changes and conflicts. For example, both entities have the power to take property through eminent domain.

Avila said he doubts the validity over Melo’s case that eminent domain—where a public entity can force the purchase of land for a public use—is a conflict of interest. Other than that, Avila said, there is no potential conflict of interest. He added that the Mammoth Lakes case was decided over more than eminent domain.

“There were several reasons, several overlapping issues there that were deemed to be incompatible,” Avila said. “I challenge anybody to find a case in the state of California where eminent domain was the only reason [to force an official to resign].”

Avila said that he told other news outlets in the county that he isn’t going to resign from the hospital board. In an interview with The Sun-Gazette earlier this month he had yet to tell that to Melo and Sarsfield.

“I am talking to an attorney. I’m drafting a letter [in response],” Avila said.

Avila was appointed to the TLHCD Board of Directors in 2017 to fill a vacancy left by Linda Wilbourn whose term ended in 2018. Avila won his own term in 2018 that runs through 2022. He was then appointed to the Tulare Cemetery District in November 2018.

“By accepting this appointment, you forfeited your seat on the Board of TLHCD,” Melo’s letter states.

Melo said they asserted Avila leave his TLHCD seat because by law once he accepted his newest appointment to the cemetery board he forfeited his oldest seat.

However, Melo said there are ways around that. If he wanted to keep his seat on the hospital board, he could simply resign from the cemetery board.

“If he were to give up his current seats on the cemetery board, there’s not likely going to be any further judicial determination that he has to leave that board. So if he were to resign from the cemetery district, really nothing would happen,” Melo said. “We’re certainly not going to force him to go back to the cemetery district and leave the hospital district.”

This article was updated on March 17 at 1:49 p.m. to reflect Avila’s appointment to the Tulare Cemetery District Board in November 2018.

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