GILROY
– The city attorney says if Mark Dover is elected to Council, he
will
”
automatically vacate
”
his position as a Gavilan College trustee.
GILROY – The city attorney says if Mark Dover is elected to Council, he will “automatically vacate” his position as a Gavilan College trustee.
Hoping to avoid criticism by voters wanting to be well informed on Election Day, the city made its lawyers issue an opinion on whether the candidate can hold a City Council office and a seat on the Gavilan College school board at the same time.
Dover is sticking to his guns. He said again Thursday he would stay in the Council race, keep his Gavilan seat and resolve the matter in court if necessary.
“The city attorney’s opinion is just that, an opinion,” Dover said. “There are people who hold more than one office. She still hasn’t answered my questions about that.”
In city documents Council will review at its regular meeting Monday night, Assistant City Attorney Jolie Houston sites both state law and city charter – the document that guides the way the city of Gilroy is governed – for the opinion.
“It is our preliminary opinion that the offices of city councilmember and Gavilan College board member are incompatible under the common law doctrine as expressed by attorney generals’ opinions,” Houston wrote. “In addition, we believe holding the college district office falls within the city charter’s prohibitions on councilmembers holding ‘any other public’ office.”
Dover believes that City charter is a violation of his civil rights and says a final decision should be based on state law.
Article IV of the city’s charter states “… no member of Council shall hold any other public office …”
The city’s pre-election information gathering stands in stark contrast to Gavilan College’s hands-off approach. College President Steve Kinsella said if Dover is elected and does not relinquish his trustee’s seat, he would ask the school’s attorney for direction.
“There’s no reason right now for us to spend good money on legal fees,” Kinsella said. “I don’t see that as a responsibility we have – to provide information that has any kind of influence over an election.”
Dover said he would fight any effort that does not allow him to hold both offices, triggering questions about what the city and the school would do to stay in keeping with the law.
Last week, Dover had questioned why the city didn’t make a determination on his situation before the election. Previously, the city attorney only had called Dover and, according to his account, told the former city employee he could not run for office.
So, the city reacted.
“This was raised as an election issue, and the city wants to clarify it,” Mayor Tom Springer said. “If the city gets criticized for paying its lawyer to clarify information, fine. I’ll take the heat for it. This is an important issue, and it needed clarifying.”
Ironically, still not much is clear. In documents submitted to The Dispatch by the Attorney General’s office, several court rulings describe cases where dual office holders were in violation of the incompatible public office law.
None of them involve positions on a city council and a community college board of education, although one refers to a case where a state assemblyman could no longer be a member of a community college board.
The distinction between that and Dover’s situation (his offices would be city councilman and community college board member) may be important. The incompatible office law tries to prevent overlapping jurisdictions. While the City of Gilroy is one of the areas served by Gavilan, one position serves a municipality and another serves the state. Neither agency has authority over the other, a key test for incompatibility.
In the case of the state assemblyman, both positions he held were state-level offices, meaning one had authority over the other.
“It’s really not a law that tries to come up with some perfect matrix that shows which offices are overlapping and which ones are not,” said Gavilan College Board President Laura Perry who is a lawyer. “The law is more about trying to prevent potential conflicts. Can the President be a governor? Can a governor be a senator?”
Even if two offices were allowed under the law, Perry believes it would create constant conflicts of interest, meaning Dover would have to recuse himself from voting on issues.
“Just off the top of my head I can think of half a dozen instances where you’d have to step down from an issue and not vote. That’s not what the voters want,” Perry said.
In 2000, Perry ran for state Assembly knowing she’d have to give up her Gavilan seat if she won the election, she said.
However, a current Gavilan College trustee, James De La Cruz, holds a seat on the San Benito County water board. And, De La Cruz is running for a seat on the San Benito County Board of Supervisors – a relationship case law has ruled as overlapping.
Hollister City Councilman Robert Scattini is all too familiar with Dover’s predicament. Scattini is also the marshal for San Benito County, an elected public office.
Scattini said his opponent raised the issue during their campaign, and he had to go to Sacramento to obtain an opinion from the Attorney General’s office.
“I went through the same thing. They told me I could hold office because the county and the city were two different agencies,” Scattini said. “Each city can have its own ordinance and that might change things for him (Dover). I don’t know.”
