Liss supporters plan attorney general challenge of Wheeler council seat

Mayor adds ‘election discussion and action’ to Nov. 13 council agenda and requested town attorney to research issue
By: Joyia Emard, Loomis News Editor
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Supporters of Gary Liss, who was not re-elected to the Loomis Town Council, have vowed to challenge whether Dave Wheeler’s seating on the council in December will pose a conflict of interest because he is also chief of the Loomis Fire Protection District, said Bill Branch.

Branch, a Liss supporter, said in a post-election interview on Nov. 6, that Wheeler serving on both council and the fire district at the same time is a “glaring conflict of interest.” He called holding the two offices “incompatible.”

Branch said, “I will guarantee you there are people standing in line ready to file, if he tries to hold both offices. Once he is sworn in, the complaint will be filed.”

Branch said he is hoping that Wheeler will “come to his senses” and decide on his own to give up the council seat.

For the upcoming Nov. 13, Loomis Town Council meeting, Mayor Sandra Calvert, a supporter of Liss, included on the agenda under business items, “election results, recommended action: discussion and action.”

Calvert said in an interview, “I feel this (Wheeler serving on the town council) is an incompatible office based on prior rulings by the attorney general.”

She said at the council meeting she wants the town attorney to tell the council how to fill Wheeler’s council position if he chooses not to be seated on the council because of a potential incompatibility issue.

Wheeler called the alleged conflict of interest a “moot point. The conflict is just not there.”

He said when informed of the challenge, “I think we are on solid ground. Loomis is protected by three fire districts. I’m not the final decision-maker for the fire district. A decision I make can be appealed to the fire board. None of this goes to the town council. I have never conducted business as fire chief before the town council. I have never attended a council meeting as the fire chief.”

According to the fire district’s website, the part-time fire chief position is the “lead manager and administrator of the District.”

John Shearer, president of the Loomis Fire Protection District Board, said, “Dave Wheeler is merely a part-time employee and receives no benefits. He is not an elected official. The fire district board makes all the decisions. Dave takes his marching orders from the board.”

Shearer said Wheeler makes no monetary decisions and the board is the final authority on all matters concerning the fire district. He said he consulted with the fire district’s attorney and the attorney did not see any conflict of Wheeler serving in both positions.

At the heart of the matter is the attorney general guide on conflicts of interest for government officials in the section on incompatible offices that deems a person may not hold two public offices at the same time.

The guide states, “Typically, the prohibition manifests itself when one office exercises jurisdiction over the other office … there must be a potential conflict or overlap in the functions or responsibilities of the two offices.”

Another section states, “it does not apply to an employment position or an official that exercises only advisory functions,” yet there are attorney general opinions rendered in some cities over the years that a fire chief position did conflict with a city council position.

Another section asks, “Do the offices overlap in jurisdiction, such that the official’s loyalty would be divided between the two offices?”

Under the guide’s section on potential conflict in duties or functions, it states, “The incompatible offices prohibition does not require proof of an actual class (sic) between the two offices in the context of a particular decision. It is enough that there is the potential for a significant clash between the two offices at some point in the future.”

The penalty for being found to hold two incompatible offices is the “automatic vacating of the first office … disqualification or abstention from those decisions where an actual clash of the two offices occurs is not an available remedy.”

It also states that if incompatibility is found, the person remains in the first office “as a defacto member” until the person resigns or is removed from office by a quo warranto action or other lawsuit.

Lynda Gledhill, press secretary for Attorney General Kamala Harris, said “Time to decide a quo warranto request or issue an opinion is unpredictable, but nine months to a year is a reasonable guess.” 

“Many incompatibility issues are also researched and resolved at the local level without us ever getting involved,” Gledhill said.

According to Roger Carroll, town treasurer, the Town’s attorney bill for October reports 2.8 hour’s work totaling $816.50 for “Loomis Fire Protection District – incompatible office research.” 

Town Manager Rick Angelocci said on Monday, Nov. 12, that Calvert directed the town attorney to research the issue.

The council meeting begins at 7:30 p.m., Tuesday, Nov. 13, at the Loomis Train Depot.