May 18, 2013
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2001 Final Report:
CITY OF HALF MOON BAY
PLANNING COMMISSION APPOINTMENT
2001 Final Report:
CITY OF HALF MOON BAY
PLANNING COMMISSION APPOINTMENT
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?
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.
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.
The City of Half Moon Bay should immediately remove George Carman, a non-resident of Half Moon Bay, from the Planning Commission.
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.
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:
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 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:
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
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.
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.
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.
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.