In a scene right out of a Hollywood political drama, the Board of the Coastside Fire Protection District–the old, pre-recall board–will meet one last time at a special meeting on Monday. If it proceeds as expected, a recalled member of the board will join with the two unrecalled members to vote to start negotiations with Cal Fire.
The date for the meeting was set weeks ago, well before the outcome of the recall election was known. If the recall failed the meeting would be used to take the first concrete steps toward forming a standalone fire department and ending the contract with Cal Fire. If the recall were to be successful, the meeting would be used to sign a letter of intent with Cal Fire, assuring them that the district intended to enter into a new contract and removing the need for Cal Fire to begin the process of shifting employees and winding down its presence on the coast.
It was a good, flexible plan except for one detail. Even though the recall election took place this past Tuesday, with the voters choosing in overwhelming numbers to remove Alifano, Mckintosh, and Riddell from office, the recalled directors are still in office and will be for at least another week.
The problem is that since recalls are so rare, exact procedures for the transfer of power have not yet been worked out in detail. The votes in any election have to be certified–basically endorsed as true and accurate by the county–and that need not happen for twenty-eight days after an election. Normally this time passes unremarked since two or more months pass between election day and new officials being sworn in.
Whether a government body needs to wait for that certification in the case of a recall is something that is decided by the counsel of the fire board, according to Mark Church, Chief Elections Officer of San Mateo County.
Speaking generally of recall elections, Church writes:
….statutes that govern the question are not explicit about the answer, and legal interpretations may differ.
The Elections Code contains a few provisions that discuss recall elections, one of which notes that “If a majority of the votes on a recall proposal are ‘Yes’, the officer sought to be recalled shall be removed from office upon the qualification of his successor” (see Section 11384), and another of which states that “If at a recall election an officer is recalled, the candidate receiving the highest number of votes for the office shall be declared elected for the unexpired term of the recalled officer” (see Section 11385). One question here is what it means for someone to be “qualified” as successor. Looking to caselaw, it appears that once the election results are certified by the Elections Division, the successor is qualified upon taking the oath of office, and this is when the recalled officer is no longer a member of the board. It also appears that no board action is required to have the new officer declared elected—it happens by operation of law. But again, the CFPD counsel may have different views on these issues, and you should consult the CFPD counsel if you have questions about these items.
In other words, the Elections Code and precedents may contain guidance for the CFPD counsel but the final word is with the district itself.
To help matters along the elections office is trying to fast-track the certification process and hopes to have the results by Friday, April 19th–a few days before the regularly scheduled end-of-the-month fire board meeting.
Meanwhile, until the issue is settled, Alifano, Mackintosh, and Riddell are still board members with full voting rights, for one last meeting.
Without the participation of at least one of the recalled members the board will be unable to reach a quorum of members and thus will be unable to take any action at that meeting–delaying the letter of intent with Cal Fire for at least another week and a half until the next meeting.
Initially, recognizing the legal problem, rumors had it that the meeting would be canceled. But then, yesterday, April 12th, the Agenda was published and the meeting confirmed. Since the only item on the agenda is the Cal Fire letter it was clear that the problem had been solved.
Mike Alifano has agreed to join with Board members Gary Burke and Ginny McShane to form a quorum and to vote to move forward on the Cal Fire negotiations. Alifano suggested the idea to Cal Fire Chief Scott Jalbert shortly after the election. After the Monday meeting was canceled Jalbert called Alifano back and he accepted.
Alifano offered to serve as the critical third vote in the spirit getting some “closure after the recall election and help get CalFire situated on the Coastside.” He characterized his offer as an “an olive branch if you will, maybe the whole tree, since it’s been knocked over and dragged from one side of the coast to the other.”
As the vice-president of the fire board (Doug Mackintosh is the president) Alifano will likely preside over Monday’s meeting and will likely be the one to sign the letter of intent with Cal Fire on behalf of the board.
As the most visible of the three anti-Cal Fire board incumbents and, during the campaign, Alifano worked tirelessly to attack and defeat Cal Fire and its supporters. Sources say his participation in Monday’s vote in no way signals a change of heart about Cal Fire but rather is intended to signal a good-faith gesture to let the people’s will move forward. Doug Mackintosh and Gary Riddell have reportedly indicated that they will not be attending Monday’s meeting.
Speaking just after election day, Alifano announced that he intends to run for the fire board in the November 2013 election when three of the directors–Ginny McShane, Gary Burke, and incoming director Harvey Rarback will be up for re-election.
Correction: An earlier version incorrectly stated that the board would vote on a memorandum of understanding at Monday’s meeting. The will actually be voting on a letter of intent. In practice the two terms are largely interchangeable.
Updated to include quotes from Mike Alifano.