For the second time, the appointed East Contra Costa Fire Protection District Board failed to make a final decision on moving to an elected board in the November election. In what was supposed to be a discussion on a board comprised of directors “at-large” or “districts”, the Board took another path.
They are now seeking a way to skirt state law in an effort to drop from a nine-member board to a five-member board even after Chief Hugh Henderson explained per state law in the Health and Safety Codes, they had to remain at nine-members regardless of an at-large or district election for its new board members.
The Resolution of moving to a five-member elected board approved at the last meeting was voided and non-binding due to state laws explained Henderson.
Instead, the District legislation says the Board may change from appointed to elected and may increase or decrease as well as be an at-large or district representation, however, Henderson says it’s not really clear of how to do all three at the same time and may require different steps.
(a) If a majority of the voters voting upon the question at a general district or special election are in favor, a district that has an appointed district board shall have an elected district board or a district that has an elected district board shall have an appointed district board.
(b) The district board may adopt a resolution placing the question on the ballot. Alternatively, upon receipt of a petition signed by at least 25 percent of the registered voters of the district, the district board shall adopt a resolution placing the question on the ballot.
(c) If the question is submitted to the voters at a general district election, the notice required by Section 12112 of the Elections Code shall contain a statement of the question to appear on the ballot. If the question is submitted to the voters at a special election, the notice of election and ballot shall contain a statement of the question.
(d) If a majority of voters voting upon the question approves of changing from an appointed district board to an elected district board, the members of the district board shall be elected at the next general district election. If a majority of voters voting upon the question approves of changing from an elected district board to an appointed district board, members shall be appointed to the district board as vacancies occur.
“This is a two part process. First at a general election and then after the question has been approved, then going to the next general election for the board,” said Henderson. “This would delay a future election based on terming out on the board. When we looked at this transition we have two directors that expire in December of 2016. We have one director appointed by City of Oakley to expire in April 2017 and two directors in unincorporated in February 2018. This would change the dynamics of the board and would not allow until any election based on the numbers reduced each year.”
Henderson explained that in January 2017 – April 2017, the Board would be made up of two from Brentwood, three from Oakley and two from unincorporated for a board of 7-members. From May 2017 – November 2017 when general election, the Board would be made up of 6-members with two from Brentwood, two from Oakley, two from unincorporated. That election would be November 2017.
“The additional add-on to this is additional vacancies in the interim such as resignation or somebody moving out of the District would not have a consistent procedure of how to roll these terms,” explained Henderson. “Staff would not recommend moving to a 5-member elected board with divisions based on having to make these divisions after getting the board down to five members.
Instead, staff’s recommendation was to get voter approval for an elected board for 9-member at large Board of Directors and wait until after the 2020 census to address moving to divisions and then getting the consultant to create divisions. The board at that time the Board could decide if the Board was meeting the needs of unincorporated vs cities.
“I want to make a few clarifications to help. The fire district cannot leave a currently covered responsible area without coverage. It can’t, it’s against the laws. We have to make sure that it remains covered. Under any circumstance, an at-large regardless if they are all from one area make any decision that leaves any part of the district without coverage,” said Bryant. “I want to make sure we are not having a conversation of us versus them as a board and as a district. We must provide adequate fire service.”
Director Joe Young stated he was not in favor of a nine-person board.
“The idea of an elected 9-person board really bothers me,” said Young. “We are not obligated to put this question to the voters, it’s only been advised in the MOU’s that we passed. It did not require us to do that. One option is to take no action and leave the board as is. That said, I know I am swimming upstream there due to the pressure to go to an elected board. So we should get there at some point. I am also concerned about a 9-member board because we would be the only 9-person elected board in the county and one of the largest for any kind of actions. Its inefficient for a variety of reasons.”
Young asked about the possibility to change the process
“The first step to move to a 5-member appointed board where two would be appointed by Brentwood, one appointed by Oakley and one appointed by the county. One would be joint appointed by Oakley and the county. That would give you the same make up that we have today. That could take place by the November ballot and by July 2017 the attrition rate would allow us to arrive at that size,” explained Young. “The second step would be breaking it out into five districts and then appointing members to each District with the third step being a five-person elected board after the census.”
Legal highlighted that the process would work and be legal and stated it would be three steps and complicated, but said anything they do will be complicated going forward.
“The longest serving appointment goes until February 2018 so those previously expired terms could be re-appointed until February 2018 and we would seat the newly elected board,” said Pope.
Pope wanted to see under his plan, could they drop from 9 to 5 directors. Legal explained that through attrition, we need to get to five and not re-appoint. She noted that nothing in the statue of the law would prohibit that.
Director Cheryl Morgan asked the board to remember when they took the oath.
“Did you say the word democracy or did you say republic. You said the word republic because this is not a democracy. Our founding fathers of this country feared a democracy because a democracy is a rule by mob. They made us a republic for a purpose. The purpose is to rule by law. The problem with a democracy is you have the ability to have the excesses of a majority to impact negatively the minority. That is exactly what this board is going to do,” said Morgan. “There is no doubt about it that if we have a 5-member board, just going off the numbers of the district, they are going to be elected exclusively from Brentwood. Nothing else can occur and if they are elected out of Brentwood they will financially take any taxes raised in the district and use in Brentwood. That has been their path and that is their future. The other thing is with this problem is it’s not going to impact my area, its going to impact every other minority area. That includes all the unincorporated areas. Doesn’t the county have a plan to de-populate Bethel Island”
Board President Joel Bryant cut off Morgan saying her comments were beyond the perview of this discussion or any authority to deal with.
“I do want you to understand that why I opened with what I did is because there is not a single individual within the boundaries of this fire district that this fire district is not responsible to provide some service for,” said Bryant.
“Some fire service can be reduced to nothing or next to nothing and it has occurred,” said Morgan.
Director Young clarified Popes plan where Pope highlighted changing appointment terms and expirations in an effort to provide stability and take care of power of influence.
Director Morgan sought Board support for a permanent contract with CALFIRE.
“I think that if this board, which would solve the problem for my area, if there was some sort of promise made by this board, a memo, a contract in perpetuity that they would not close the Sunshine Station no matter what the circumstances are,” said Morgan. “That would solve a lot of the concerns in my area.”
Bryant responded that legally they do not have the power to do that because they are not the CALFIRE board and said they are getting sidetracked by the item at hand.
Director Steve Barr replied how inappropriate the conversation had become.
“We are in the question and staff part of the agenda. Discussion before we receive public comment is totally inappropriate. If I can just ask if we can ask our questions of staff, take public comment and then state our opinions. Stating our opinions prior to public comment is totally inappropriate,” said Barr.
Barr then asked who has the ability to change the total number of elected board members at this time. Legal responded they would need to go to the voters.
Steve Smith of Brentwood stated he was in favor of going to an elected board as promised.
“I see no reason other than five-members,” said Smith. I strongly believe the directors should be elected at large. In general, this district contains a good size concentration of Brentwood and Oakley plus the smaller urban concentration of Discovery Bay and sparsely populated areas.”
He highlighted how the District was filled with 114,000 residents and that if they go to define the boundaries in the form of districts, they need 5 districts of 22,826 residents.
“The combined populations of Discovery Bay, Byron and Marsh Creek Territory total 15,370. A ward of proper size would require the addition of 7,456 Brentwood residents. The combined population of Knightsen and Bethel Island is 3,705. This would require 19,121 Oakley residents. All unincorporated areas as a whole would still be 3,751 residents short,” said Smith. “More to the point, I strongly oppose to the notation that various sub areas should be at odds with each other’s. Our best guarantee is the election of fire individuals that will govern the district as a whole with integrity.”
Mark Whitlock of Bethel Island stated this discussion could not come at a worse time when the cities and county are looking at a possible tax saying this episode muddies the water even worse. He was in favor of an elected Board at-large.
“What happens when your create districts and no one from that district comes to the party,” asked Whitlock. “I really think putting this to bed as quickly as you can and moving forward with it would be the best thing with the interest of the public and moving forward.”
Susan Morgan, Oakley, spoke last time in favor of Wards, but now after hearing the chiefs report and complications would prefer to see an elected board however they need to get there than having to keep a non-elected board.
Director Steve Barr stated the goal here was to get to an elected board and he prefers to make a decision tonight to move to a 9-member elected board at the next election.
“I fully support going to an elected board. We had discussion at our last meeting. We were discussing how the makeup would take place and after further legal review we kind of faced with making a multiple step process,” said Barr. “To me, if our goal is to go to an elected board and then that elected board will take additional steps as they see fit, not as we see fit, I have my opinions on my number, the divisions, but to me none of that makes sense to have a long discussion if the simple fact is do we want to go to an elected board or do we not. My recommendation is to go to an elected board and respect the wishes of all the residents and hold an election. If that board doesn’t feel it’s a good representation district wide then that elected board can add another measure to either change the number or if they should go to a division if they think that is the remedy. For this board, if it’s to go to an elected board, our choices are pretty limited.”
Director Bob Kenny stated he agreed with a 9-member elected board.
Director Joe Young stated for a second time in the evening he believed nine-members was too many.
“If we want to move to an elected board, that is fine, but we need to be moving towards a 5-member board,” said Young.
Director Ron Johansen stated they go for an elected board immediately, but says he disagreed with a 9-person board and that they should allow that 5-person board to make the decision on “at large” or “Districts”.
“I am looking at cost and for a process that is causing the least pathways of resistance or problems of concern with change. A nine-person board does not work because there is so much division that work can’t get done,” explained Johansen. “I am for board at large, but with 5-people.”
Director Joe Young requested staff to rundown the process to get to a five-person elected at large board.
Legal explained that if they had an election to go to a five member board, an election would occur and at the next general election the directors would be elected.
“Then to work to 5-members, if a measure is passed it goes into effect 10-days later. Around November, when seats expire going forward, a seat becomes vacant and would not be filled until we dwindle down to five. We have dates where we know some seats end. So by natural attrition that will play that way or people could leave their seat for some reason which would be unforeseen attrition so we would reduce as time went on from December 2016 until November of 2017 for the general election. If natural attrition was to take place, we would get down to six,” explained ECCFPD legal. “It would be by attrition and all out replaced at the same time.”
Director Young asked if it was on the ballot of 2016 to go to a 5-member elected board, attrition would get us to 2017 but there would be disproportionate as far as today’s current appointment process. But in 2017 we would have 5 new members taking office.
Legal explained that as of May 2017, they would have 6 until the election.
Director Randy Pope explained this Board has already approved sending a measure to the voters going to a 5-member elected board.
Legal explained the problem is they redacted how they would be elected whether it be by at-large or by District. Since it was redacted, now they needed to decide.
“Either we stick with the resolution you got and we add that piece and submit to the county. Or we supersede and go on another track,” said legal.
Pope stated the board does not have all the information needed to make a decision because his question can’t be answered. He urged the board to table this item until the next meeting in an effort to give research more time.
Young argued that since the District already has a succession plan in place where they did not need to re-appoint under Popes plan, his plan was not needed since they drop to six board members in February and then in November would drop down to five.
“That is one avenue, this is another avenue I’d like to know so we can make an educated decision between the two,” said Pope. “Because one has the ability to put this in balance and that wasn’t the original intent to have 8 then 7 then 6. We can still have the original 9 up until we are ready to flip the switch and transition. If we need a little extra time, let’s take it if it’s not going to cause us not to quality for the ballot.”
Pope noted under his plan, it would not cut any current appointment short by extending the start date until February 2018 for an elected board. Pope noted that Brentwood has two terms expiring in 2020, but Brentwood could chose to re-appoint them to partial terms with a known expiration date of February 2018.
Henderson stated that they would need to have everything ready for the ballot measure by August 12, 2016.
Barr asked if there was any angst from members of different city councils if there was an imbalance for a short amount of time, if it would prevent them from going to an elected board with the attrition factored in.
Pope replied he had an issue with imbalance which is why he brought up his solution to prevent an imbalance.
Director Young made a motion to move to put the measure on the ballot to go to an elected board and then go to a five member elected at large. Johansen seconded the motion.
- Yes –Barr, Johansen, Morgan, Young
- No – Bell, Kenny, Bryant, Pope
The motion did not pass.
Director Pope made a motion to table the issue until his question could be answered.
- Yes – Barr, Bell, Kenny, Bryant, Pope, Morgan, Young
- No –Johansen,
The item will come back July 11, 2016.