Wheeler ‘incompatibility’ goes to attorney general

Two residents file complaint
By: Laura O'Brien, Loomis News Correspondent
-A +A

Two Loomis residents have filed a complaint with the attorney general claiming that Dave Wheeler, who serves on the Loomis town council and as chief of the Loomis Fire Protection District, holds incompatible offices.

In the complaint filed last week, Bill Branch and Janet Thew – using the name Citizens for Local Government Accountability – asked the attorney general’s office to “investigate and prosecute” Wheeler for holding “two incompatible public offices.”

The 18-page complaint accuses Wheeler of a violation of California Government Code Section 1099, which strictly prohibits one person from holding two incompatible public offices at the same time, if various criteria are met.

According to the code, offices are incompatible in a list of circumstances including, “either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body.”

The complaint states, “Mr. Wheeler is defying that law by continuing to serve simultaneously” and is “adamantly refusing to give up either job.”

Wheeler unseated incumbent councilman Gary Liss, who was supported by Branch and Thew, in the November election. Thew serves on the Loomis planning commission.

Branch said Citizens for Local Government Accountability includes no current or prior Loomis council members. But in November, then Loomis mayor Sandra 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.”

Calvert added an election action item to the Nov. 13 council agenda causing residents in attendance to threaten Calvert and Councilman Walt Scherer, who both supported Liss, with recall if they attempted to use town money to seek an attorney general opinion on the issue of incompatibility.

Branch said there are other members of Citizens for Local Government Accountability, but he would not name them. He said the group includes many of the same individuals who filed an open letter to Wheeler last November asking him not to assume his council seat, but the only name on that letter was Marilyn Jasper.

Wheeler, who is out of the area on vacation, said in an email, “I wish that the two citizens that filed the complaint against myself and the Loomis Fire Protection District would have been more diligent in obtaining the facts before filing. Their charges are based on misinformation of the Town's and Fire District's legal jurisdictional and budgetary separation. The Town of Loomis does not have a fire department by charter and in fact is served by three different independent fire districts.”

Branch said in an interview, “We are shocked and puzzled by the fact that the fire board and the fire board’s attorney have allowed themselves to blunder into a situation where they could potentially lose their fire chief instantly.”

The complaint states, “There are numerous situations where Mr. Wheeler as fire chief can potentially ‘overrule’ the Town council on matters concerning the fire safety of a subdivision or development application pending before both agencies.”

In an interview, Planning Commissioner Jean Wilson said the fire chief’s role in development applications does not constitute a veto power.

“A veto generally implies the simple ability to deny it without having to give a rationale or accountability for why you vetoed it,” Wilson said. “The fire chief is simply following written guidelines already in place.”

Code Section 1099 says incompatibility also exists when “there is a possibility of a significant clash of duties or loyalties” between the two offices.

The complaint alleges Wheeler did not recuse himself from participating in a recent Council discussion on open burning.

“He remained seated on the Council while it discussed whether town government needed to pass a municipal ordinance restricting open burning of yard clippings near public schools—a matter which was also pending before him as the independent fire chief,” according to the complaint.

At the February Council meeting, Calvert asked for a discussion of a burning nuisance at local schools.

Open burning was a business item slated for discussion and direction of staff on Council’s March 12 agenda. The Air Pollution Control District gave a presentation.

Wheeler said of the charge, “The school in question is not even in the Town of Loomis and the Fire District has no control over burning issues. That is the responsibility of the Air Pollution Control District.”

According to the attorney general guide on conflicts of interest for government officials in the section on incompatible offices, the penalty for being found to hold two incompatible offices is the “automatic vacating of the first office.”

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. The attorney general must approve “quo warranto” lawsuits by private individuals.

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

Wheeler said, “I trust that the attorney general's office will discover the charges are frivolous and without merit. In the meantime, I will continue to serve the citizens to the best of my ability and without prejudice.”

Loomis News Editor Joyia Emard contributed to this story