October 1, 2014
Final Reports
San Mateo Courts - Civil Grand Jury

2001 Final Report:

CITY OF HALF MOON BAY
PLANNING COMMISSION APPOINTMENT

Summary | Background | Findings | Recommendations | Responses

Summary:

The Half Moon Bay City Council's appointment of George J. Carman to the Planning Commission and his membership thereon violate the city ordinance requiring members of the Planning Commission to be residents of the City of Half Moon Bay.

Issue: Is George Carman eligible to serve as a member of the City of Half Moon Bay Planning Commission?

Background:

Following the November 2001 municipal election, a new slate of City Council members took office in Half Moon Bay. Among their early actions were the removal of a number of citizens as members of various commissions of the city and the appointment of their replacements. Section 2.24.020 of the City of Half Moon Bay Municipal Code requires all members of the Planning Commission to be residents of the city.

At the time of the appointment of George Carman as a member of the Planning Commission on January 8, 2002, the council was aware of the controversy surrounding the residency of George Carman and his wife, Eleanor Wittrup (Chair of the Board of the Coastside County Water District). It was reported in the Half Moon Bay Review on November 21, 2001, that documents presented at a Coastside County Water District board meeting indicated Ms. Wittrup and her husband Mr. Carman had purchased a new home in Stockton, California, had executed loan documents attesting that the new home was to be their primary residence, and had listed their home in Half Moon Bay for sale.

Following the City Council action the 2001-2002 Grand Jury obtained evidence that Mr. Carman executed a claim for homeowner's property tax exemption in San Joaquin County seeking to obtain a homeowner's exemption for their Stockton home. In the affidavit signed and dated October 1, 2001, Mr. Carman certified under penalty of perjury that the San Joaquin County property was his primary residence.

After reviewing this evidence, the Grand Jury wrote to the mayor of Half Moon Bay on March 6, 2002, requesting information and certification as to the residency of the members of the Planning Commission. In a letter to the Grand Jury, dated March 28, 2002, the City Manager provided verification of residency for all Planning Commission members with the exception of Mr. Carman.

The Grand Jury Foreperson called this omission to the City Manager's attention. The City Manager then provided two Half Moon Bay addresses for Mr. Carman. The Foreperson pointed out that an individual has but one legal residence at a time. The City Manager then provided Mr. Carman's "current address." Mr. Carman does not own the property at that address, and the property appears to be rented to others.

Findings:

Based on the evidence provided to the Grand Jury, it is clear that George Carman has moved his principal residence to San Joaquin County and is therefore ineligible to serve on the City of Half Moon Bay Planning Commission.

Recommendations:


Recommendation 1

The City of Half Moon Bay should immediately remove George Carman, a non-resident of Half Moon Bay, from the Planning Commission.

Recommendation 2

The Half Moon Bay City Council should consider all information available to be certain on a continuing basis that its appointees are legally qualified to serve and, where there is any lack of clarity, be responsive to the citizens and explain their reasoning to the public.

Response


RESPONSE FROM THE CITY OF HALF MOON BAY

On April 15, 2002, the San Mateo County Civil Grand Jury issued a Final Report finding George Carman ineligible to serve on the Half Moon Bay Planning Commission and recommending that the City Council immediately remove Mr. Carman from the Planning Commission. In accordance with California Penal Code section 933.05, this letter is the City of Half Moon Bay's required response to the Final Report.

After reviewing and giving careful consideration to the Final Report of the Grand Jury, the City Council of Half Moon Bay makes the following response to the Final Report:

  • The City Council of Half Moon Bay wholly disagrees as a matter of law with the finding of the Grand Jury that George Carman is ineligible to serve on the Half Moon Bay Planning Commission.
  • The Grand Jury's recommendation to immediately remove George Carman from the Planning Commission will not be implemented because as a matter of law it is not warranted.
  • With regard to the Grand Jury's second recommendation, the City Council already considers all of the information available to it when determining whether its public officials are legally qualified to serve. It is the intention of the City Council to continue to do this in the future and to be responsive to the inquiries of the public.

Grand Jury's Legal Analysis

The Grand Jury's final report appears to rely almost solely on the fact that Mr. Carman claimed a homeowner's property tax exemption in San Joaquin County. However, the Grand Jury's conclusion does not comport with judicial and legal opinions rendered on this matter in the State of California. Both the California Attorney General and a California Court of Appeal have concluded that a public official's claim of a property tax exemption is not a dispositive indicator of that official's "residence" for purposes of determining whether the person is qualified for office. The City Council is surprised that, despite the fact that the Grand Jury was aware of these contradictory opinions prior to the Final Report's release, the Grand Jury failed to address either opinion or cite any legal opinions to support its own conclusions.


In an April 4, 2002, memorandum, Half Moon Bay City Attorney Adam Lindgren provided a legal analysis of Mr. Carman's residency status to the City Council. This memorandum was also made available to the Grand Jury prior to the release of the Final Report.

In reaching an opinion as to whether Mr. Carman was a resident for purposes of Half Moon Bay Municipal Code section 2.24.020, the City Attorney provided an analysis of state law involving the definition of residence contained in Government Code section 244. Since the City has not yet clearly defined what constitutes residency in section 2.24.020 of the City Code, it was and remains the City Attorney's opinion that in interpreting the meaning of the word "resident" in the ordinance, it was appropriate to consider and rely upon the requirements for residency under Government Code section 244. The City Attorney concluded that if Mr. Carman satisfied the requirement of Government Code section 244, that Mr. Carman would satisfy the Municipal Code's residency requirements. The City Council agrees with the City Attorney that this was the proper analysis to make regarding this matter.

In reaching the conclusion that Mr. Carman is a resident of the City of Half Moon Bay, the City Attorney provided the following analysis:

"It is the opinion of the California Attorney General that 'the 'term' residence in [Government Code section 244] connotes 'domicile,' …' The Attorney General has consistently opined that domicile requires both physical conduct and the element of intent, and that … while an individual may have only one domicile, he or she may have multiple dwellings. Accordingly, the acquisition of multiple dwellings does not necessarily establish a change in domicile [citing 84 Cal.Atty.Gen.Ops. 154 (August 30, 2001) (emphasis added)].


"In analyzing whether a new domicile has been acquired by a public officer, the Attorney General has 'traditionally considered such indicia as the address shown on the person's tax returns, driver's license, homeowner's exemption, telephone listing, voter registration, and automobile registration.' [citing 84 Cal.Atty.Gen.Ops. 154 (August 30, 2001)] This is consistent with decisions by the courts of California, that have considered items such as voter registration and the address shown on a person's tax returns when determining residence or domicile [citing Johnson v. Johnson, 245 Cal.App.2d 40 (1966)]."

In this instance, Mr. Carman has stated that his intent is to be a resident of the City of Half Moon Bay. He has provided a number of documents, including voter
registration and driver's license, which support his statements that he is a resident of the City. As for the homeowner's tax exemption claimed by Mr. Carman, the City Attorney's memo specifically addressed this as well:

"… claiming such an exemption is not a conclusive indicator of legal residence. Both the Attorney General [citing 72 Cal.Atty.Gen.Ops 8 (February 17, 1989)] and a state appellate court [citing Fenton v. Board of Directors, 156 Cal.App.3d 1107 (1984)] have been presented with instances where a public official's residency status was challenged because the official claimed a homeowner's exemption on property located outside of the jurisdiction where the official was serving. In both instances, the Attorney General and the court found in favor of the public official because there was sufficient factual evidence (addresses listed on driver's license, voter registration, etc.) to support he official's claim that a dwelling located inside the jurisdiction was the official's legal residence."

Despite the fact that the Grand Jury was given a copy of the City Attorney's analysis prior to issuing its Final Report, the Final Report does not indicate that the Grand Jury considered this body of law in reaching its conclusion.

Factual Evidence

The lack of evidence in support of the Grand Jury's finding deserves attention. As noted above, intent is a key element for determining residence. However, other than the homeowner's property tax exemption, it is not clear to the City what, if any, evidence, other than conjecture, the Grand Jury relied on. The City provided the Grand Jury with Mr. Carman's current address in Half Moon Bay, to which the Grand Jury responded in its Final Report, "... the property appears to be rented to others." (emphasis added) Given the lack of factual evidence, the City Council cannot accept, or agree with, a finding based on appearances.

Furthermore, the City informed the Grand Jury, prior to the release of the Final Report, that Mr. Carman had provided the City with a current, signed lease for the property in question. Both Commissioner Carman and his wife have signed the agreement. The Grand Jury, however, failed to address this contradictory evidence in its Final Report. The City also finds it troubling that the Grand Jury did not address any other indicia which might have shown that Mr. Carman is a resident of the City: his voter registration information, his driver's license, etc. In addition, the Grand Jury apparently never asked Mr. Carman to testify or provide evidence as to his residence - an omission made even more troubling by the existence of legal opinion highlighting such material as posi6ive indicia of residence. Finally, Mr. Carman recently wrote the San Joaquin County Assessor to advise it that he no longer wishes to claim a homeowners exemption for his San Joaquin County Property; Mr. Carman has advised the City the he had made a similar request orally prior to his being appointed to the Planning Commission.
In light of the fact that the Grand Jury's Final Report: (1) failed to identify a single legal precedent in support of its conclusions; (2) failed to address published legal opinions which are contrary to the conclusions reached by the Grand Jury; and (3) failed to provide sufficient factual evidence that George Carman is not a resident of Half Moon Bay, the City Council is unable to agree with or to accept the Grand Jury's findings regarding George Carman's eligibility to serve on the Half Moon Bay Planning Commission.

With respect to the second recommendation of the Grand Jury, the City Council already considers all of the information available to it when determining whether its public officials are legally qualified to serve. The City Council, in appointing George Carman was aware of his residency status and considered all of the information available to it in determining whether he was eligible to serve. For the reasons discussed above, the City Council continues to be satisfied that George Carman is legally qualified to serve on the Planning Commission. Finally, the City Council will continue to consider all available information regarding the service eligibility of it's appointed officials and will continue to be responsive to the inquiries of the public.

Toni Taylor
Mayor, Half Moon Bay

© 2014 Superior Court of San Mateo County