(July 12) On a 4-0 vote, the San Bernardino County school board on July 8 moved to officially seek to remove board member Gil Navarro from office.
The current circumstance grew out of Navarro having  outdistanced George Aguilar in last November’s race for a position on the San Bernardino Municipal Water District representing that entity’s  Division 2, with Navarro capturing  11,643 votes or 56.21 percent to Aguilar’s  9,070 votes or 43.79 percent. At that point, Navarro still had two years remaining on his term as a school board member.
Navarro’s victory prompted county superintendent of schools Gary Thomas to seek a legal opinion from San Bernardino County’s in-house lawyers, known as county counsel, as to whether holding both positions would represent a conflict. Thomas, who is independently elected to his post and has had a few run-ins with Navarro over the last several years on issues pertaining to education, said he was prompted to obtain the opinion because of concerns expressed by members of the public about possible conflicts that might arise if Navarro is called to vote on specific matters over which both the county division of schools and the water district might have competing interests.
On December 7, head county counsel Jean-Rene Basle authored a letter in which he and his staff summarized published opinions from the California Attorney General’s Office which they said indicated Navarro’s circumstance entailed a potential conflict of interest.
The San Bernardino Valley Municipal Water District has overarching authority with regard to water issues in the central portion of the county, dictating policy with regard to water availability and setting wholesale water rates for smaller water retailers and other public water agencies, including those that provide water to several school districts.
Such a circumstance creates a conflict under California law that might preclude Navarro from voting with regard to, on one hand, the water district making water available to school districts or determining the price of that water, or, on the other hand, the county’s schools and school districts purchasing that water. Basle said this would lead to a conflict that Navarro and both the water district and the county superintendent of schools office should avoid. An attorney general’s opinion from 2002 opines, Basle said, that “A significant clash of duties and loyalties may arise in such matters as the water district setting the wholesale water rate that will be passed on to the school district by the retail water agencies involved” and could further occur when the water board votes on “determining the need for restrictions on water usage during times of water shortage.”
Navarro, however, maintains that no such conflict exists at the present time and that he can sidestep any conflicts that do arise by abstaining if and when such conflicts materialize. He has refused to surrender either position.
The matter was referred to the California Attorney General’s Office, which made a determination that there would be sufficient grounds for the board to undertake a lawsuit to seek Navarro’s removal from the county school board, on which Navarro has been a member since 2006.
“There is substantial issue as to the incompatibility of the two offices Mr. Navarro currently holds, because we have found similar offices incompatible,” a letter from the attorney general’s office dated June 11 states. The attorney general’s office stopped short of asserting Navarro could be removed, indicating that the matter would need to go to trial for that determination.
Thus, the vote by the board this week sets up the likelihood that just such an effort, known as a “quo warranto” proceeding, which involves the attorney general acting to remove “any person who usurps, intrudes into, or unlawfully holds or exercises any public office”  and involving the expense of a trial, will be undertaken.
In making his stand, Navarro will be hanging his hat on the legal precedent involved in the case of  Blanca Estella Rubio, a board member with the Baldwin Park Unified School District, who in 2004 was challenged by another member of the Baldwin Park Unified School District Board, Anthony J. Bejarano, because he claimed Rubio’s school board position and that of board member or director of the Valley County Water District, to which Rubio had previously also been elected, constituted the holding of “incompatible offices.”
Bejarano related the matter to the California Attorney General, who at that time was Bill Lockyer. The State Attorney General’s Office concluded Bejarano’s    question was valid, requiring judicial resolution.
In Rubio’s case, she was a water district board member before she was elected to the school board and under the provisions of the case that Bejarano and the school district were allowed to bring to trial by the State Attorney General, Rubio would have been, if the trial court had held against her, removed as a water board member and would have been allowed to retain the office to which she was most recently elected, that of school board member. The matter went to civil trial and in October 2005, a jury ruled in a 9-3 decision that Rubio could keep her seats on both the school board and the water board.
“After a jury trial, Blanca Rubio was not found to be in conflict and was able to maintain two elected positions,” Navarro said.
Certain legal authorities, while conceding there are direct parallels between the Rubio and Navarro cases, point out that there is superseding law which will undercut Navarro’s position.
The issue is not whether there is a direct conflict of interest, according to legal authorities, but whether there is the possibility that there could be a divided loyalty.  The issue is whether the offices are incompatible because the duties might possibly conflict at some time.
Previously, the doctrine of incompatible offices that had been developed by common law precedent, i.e., rulings of the courts, over the years in California allowed a favorable outcome for Rubio in her case.  In 2005, however, the California State Legislature acted to make the doctrine black letter law by the adoption of Government Code Section 1099.   This was after the jury verdict in the Rubio matter. At present, the statutory law now provides:
“(a) A public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible. Offices are incompatible when any of the following circumstances are present, unless simultaneous holding of the particular offices is compelled or expressly authorized by law:
(2) Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices.
(3) Public policy considerations make it improper for one person to hold both offices.
(b) When two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second. This provision is enforceable pursuant to Section 803 of the Code of Civil Procedure.
(f) This section codifies the common law rule prohibiting an individual from holding incompatible public offices.”
Navarro, an outspoken Latino activist who has pushed for the political and professional empowerment of Hispanics, insists he has encountered opposition because of that activity. He maintains the voters have approved him for both roles he is currently fulfilling and said he will require that the district be put through its legal paces if it is to proceed against him. It is anticipated the trial will entail a cost of over $100,000.