OPINION by T. KEITH GURNEE
With the passing of 3rd district Supervisor Adam Hill, there is now a vacancy on the San Luis County Board of Supervisors. In normal times, Gov. Gavin Newsom would have the sole power to appoint someone to fill that vacancy. But these are not normal times.
The COVID-19 pandemic led to declarations of emergency by the state of California and the County of San Luis Obispo and no one can tell us how long this state of emergency will last. During these periods of declared states of emergency, state law provides a different way to fill that vacancy.
The California Emergency Services Act
California Government Code 8636 and 8638 (and a few related sections nearby) mandates that the governing bodies of local governments that are under a declared state of emergency MUST appoint a standby individual to serve as the acting representative for a vacancy created by the death of an elected officer.
Therefore, the San Luis Obispo County Board of Supervisors has both the legal responsibility and the power to appoint a standby official to fill the 3rd district vacancy so that the residents of Grover Beach, Pismo Beach, Avila Beach, and most of San Luis Obispo would have someone on the Board to serve their needs until:
The state of emergency is terminated, or
The next third district Supervisor is elected at the next general election in 2022, or
The Governor makes an appointment to fill the vacancy.
With Gov. Newsom dealing with his own state of emergency that is already consuming so much of his time, this law protects the regular process of the governor making an appointment to fill a vacancy. It allows the governor a longer period of time to vet the individuals who may want to apply for that appointment while his hands are full with the statewide emergency.
But most importantly, this law allows the constituents of the 3rd district to have the services and representation of an acting county supervisor while the governor contemplates making his appointment. After all, the months of Mr. Hill’s long absence from meaningful work as supervisor has left the constituents of his district without representation for the last five months. It’s time that they be represented again.
In summary, state law gives the Board of Supervisors no choice but to make an appointment of a standby officer to fill this vacancy as soon as possible.
The San Luis Obispo County Emergency Operations Ordinance
Consistent with State Law, San Luis Obispo County has adopted by ordinance its own Emergency Operations Plan under County Code Section 2.80-Emergency Organization and Functions that was last revised and adopted on Jan. 10, 2017. That ordinance provides for the board’s appointment of standby officers for each county supervisorial district.
Unfortunately, the county’s ordinance and its Emergency Operations Plan are flawed and the county is out of compliance with its own ordinance. The flaws are these:
1. The succession plan needs to be revised to allow individual Board members to name their own successors to take their places should they become unavailable during an emergency. The county’s existing succession plan for the Board of Supervisors calls for other county elected officials or staff members to fill board vacancies during a local state of emergency. The existing ordinance provides for three (3) successors for each supervisorial district. For District 3, the three county officials in order of priority are (1) the Clerk-Recorder (2) the Public Works Director, and (3) the Assessor.
With one of the most important elections coming this Nov. 2020 elections approaching, appointing Clerk- Recorder Tommy Gong as the standby official for District 3 makes no sense. He doesn’t live in the 3rd district and how would he be able to a manage the Nov. 2020 election?
2. Appointing county employees– whether they be elected or appointed– will create vacancies in their existing positions. Who would handle the District Attorney’s responsibilities if he were to become the standby official for District 5? Who would take over the position of Public Works Director if that person became the standby official for District 1? Not only that, but California Government Code Section 1099 would preclude elected or appointed members of a governmental board to simultaneously hold two public offices that would be incompatible with the duties of both positions.
While an individual Supervisor should still have the discretion to appoint a county official or employee as their successor– provided there is a qualified successor who could take on the responsibilities of their present position– providing a prescribed list of only county staffers to represent every supervisorial district could require them to step down from their existing position to become a standby supervisor with a likely dramatic reduction in their salary.
3. The County should immediately correct its violation of state law and County ordinance by revising and adopting a new Emergency Ordinance. Both state law and the County’s Emergency Ordinance requires that the ordinance be updated and adopted at the second Board of Supervisors meeting in January of each year.
The County Counsel’s office recently informed the board that the ordinance hasn’t been considered by the board since it was adopted back in 2017. Hence the county has been in violation of both state law and its own county code for each of the last three years.
Both state law and the county’s ordinance expressly state that a violation of their provisions is a misdemeanor violation punishable by a fine of $1000 (in state law) and $500 (per county code) and imprisonment for six months or both. The County needs to immediately correct this violation.
Why did County Counsel’s Office has not brought this to your attention is beyond disturbing.
Revising the County’s Emergency Ordinance
The San Luis Obispo County Board of Supervisors should immediately direct county staff to revise its Emergency Ordinance so as to contain the following revisions:
Remove the existing succession plan for standby officers and replace it with a new one that would:
(1) Allow each member of the Board of Supervisors to prepare their own succession lists of three constituents residing within their district, one of which who would serve as their standby officer should that supervisor become unavailable to serve their district during a public emergency.
(2) Provide a successor list of three individuals to serve as standby appointments for other key county elected positions and department heads during a public emergency. These positions would include the District Attorney, the County Clerk-Recorder, the Auditor-Controller, and the County Assessor as well as the County Administrative Officer, County Counsel, the Health Agency director, and other County department heads.
The board should authorize staff to make sure that the review a re-adoption of the Emergency Ordinance is scheduled for the board’s second meeting in January of each year in compliance with state law and the county’s code.
In directing staff to prepare a revised Emergency Ordinance, the Chair of the Board of Supervisors should request that each member of the board prepare a sequenced list of three (3) standby successors to take their place should they become unavailable during a public emergency. These standby candidates should be residents of each district who would be (1) trusted by the appointing Supervisor to represent their district and (2) be willing and able to serve. These successor lists should be completed by each member of the Board of Supervisors within the next two weeks while the revised Emergency Ordinance is being prepared.
Once the revised Emergency Ordinance is ready for adoption– hopefully by mid-Sept. 2020– the Board of Supervisors should move forward and appoint a standby officer to represent the 3rd district.
Appointing a standby officer to represent the 3rd district
The simplest way to fill the vacancy would be to have each member of the board nominate a 3rd district resident to serve as a standby Supervisor for District 3 and vote on those nominations to see if there could be a consensus on appointing someone with three votes or more. This could be done at the same time
as the board adopts the revised Emergency Ordinance.
Another option would be to initiate a process to interview prospective candidates for the position.
Because of the vacancy created in the 3rd district, the chair of the board might want to consider appointing two county supervisors to serve as a subcommittee to solicit applications and interview potential candidates to serve as a standby official to represent the 3rd district until such time as (1) the public emergency ends ,or (2) until the next general election in 2022 to fill the vacancy, or (3) the governor appoints someone to fill the vacancy. This process could be conducted during the same two- week period when each supervisor is preparing their succession lists for their particular district.
If the Board of Supervisors is reluctant to go through either of these options, there are three other options to consider in filling the vacancy with someone to represent the 3rd district:
1. Appoint Stacey Korsgaden to fill the vacancy: Stacey Korsgaden came very close to beating Adam Hill in the March 3 election. Just eight days later, the FBI raided Adam Hill’s office at the County Government Center and Mr. Hill tried to commit suicide. Had those events occurred before the election, there is little doubt that Ms. Korsgaden would’ve won the 3 rd district seat.
However, Korsgaden is a Republican in a largely Democratic supervisorial district. Should a Republican be appointed to the vacancy, it might spur the governor to intervene and appoint a Democrat to the position before the state of emergency is lifted.
2. Appoint a Democrat to fill the vacancy: There are a number of ambitious Democrats in the 3rd district including SLO Mayor Heidi Harmon, SLO Councilwoman Erica Stewart, and Pismo Beach Councilman Eric Howell to mention but a few.
If Gov. Newsom was to appoint someone to fill the vacancy he would likely lean on the left side of the Democratic spectrum. But if a moderate Democrat could be appointed to serve this largely Democratic district, the governor might let that standby appointment stand. Stew Jenkins, an attorney and moderate Democrat who once served in elective office with the Port San Luis Harbor District, could be that person. He gets along with the board majority and in speaking with Stew, he has indicated his interest and willingness to serve while committing to not run for the position in the next general election.
Should Stacey Korsgaden decide to run for Supervisor again in 2022, she would not have to run against an incumbent.
3. Wait until the governor makes an appointment to fill the vacancy: This option runs the greatest risk of appointing a leftist Democrat to the board that currently has a conservative majority.
An opportunity not to be missed
The worst outcome is waiting until the governor fills the vacancy. Just think about who he might appoint.
A good outcome would be the appointment of Stacy Korsgaden to fill the vacancy. We all know she would’ve won the election had the events of mid-March 2020 happened prior to the March 3, 2020 election.
But the best outcome is option two above. Appointing a moderate Democrat to a heavily Democratic district would make the conservative board majority look magnanimous to 3rd district residents and would provide a Supervisor that the Board majority could work with. That’s something the board hasn’t
had the last 12 years. And by appointing a more moderate Democrat, there’s a good chance that Governor Newsom would let that appointment stand.
It’s an opportunity that should not be missed.