San Ysidro Schools trustee steps down after all; judge may not have known about section 1770 when ruling that Yolanda Hernandez could stay in office after conviction

Government Code Section 1770 states, “An office becomes vacant” when an elected official is convicted of “any offense involving a violation of his or her official duties.”

Hernandez pleaded guilty to omitting information about gifts from contractors on state disclosure forms, signed under penalty of perjury.

Dan Shinoff, attorney for the San Ysidro and Sweetwater schools, said, "...but you can’t just ignore the judge’s ruling."

San Ysidro trustee steps down after all
By Allison Sampite-Montecalvo
and Ashly McGlone
SDUT
April 30, 2014

San Ysidro schools trustee Yolanda Hernandez stepped down Wednesday evening, a day after her sentencing in the ongoing corruption probe at three South County school districts.

At her sentencing on Tuesday in Chula Vista, Hernandez received community service and probation, but Judge Ana Espana allowed her to stay in office.

On Wednesday, U-T Watchdog raised questions with district officials, attorneys and legal experts across the state — many of whom did not see how Hernandez could remain in office. Confusion ensued, along with meetings among school officials and lawyers.

State law mandates that an elective office be vacated when the official is convicted of any violation involving his or her duties.

The U-T posted a story online about the law, and more than 90 percent of readers in an unscientific online poll said Hernandez should not be in office. Board president Jason Wells then informed the Watchdog that Hernandez, 65, would resign.

“She decided to do what was best for the district and herself, which was to resign,” Wells said. “We are very grateful for her 20 years of service and this was the right move at this time. This is the latest step in a long process that this board has gone through to positively change the climate in the San Ysidro School District.”

Hernandez was one of 15 elected officials and contractors indicted in 2012 in a probe by District Attorney Bonnie Dumanis of pay-to-play allegations at three school districts. She is the 10th defendant sentenced, but the first who seemed poised to remain in office after her case concluded.

Her departure could have implications for two Sweetwater Union High School District board members who pleaded guilty last week and are to be sentenced in June. Neither expected to leave office, and Espana issued a finding that they were authorized to keep their board seats.

“The court came to that conclusion after reviewing the statute pertaining to this particular offense,” Espana said in court, without citing a statute.

Government Code Section 1770 states, “An office becomes vacant” when an elected official is convicted of “any offense involving a violation of his or her official duties.”

Hernandez pleaded guilty to omitting information about gifts from contractors on state disclosure forms, signed under penalty of perjury.

U-T Watchdog discussed the code section with several legal experts on Wednesday — including the San Ysidro district’s lawyer — and they all thought the law was clear:

Michael Colantuono, a municipal attorney who was named Public Lawyer of the Year in 2010 by the California Bar Association: “I do not read that statute to give the court any discretion. It provides that they lose their office upon conviction of a felony or upon a misdemeanor of their official duties.”

Dan Shinoff, attorney for the San Ysidro and Sweetwater schools: “My reading of 1770 is that if you are convicted of a felony or found guilty of wrongdoing relative to your duties in office, that your seat becomes vacant. I don’t think that’s complicated, but you can’t just ignore the judge’s ruling.”

[Maura Larkins' comment: Dan Shinoff, who has represented the San Ysidro School District for many years, has a history of insisting that judges who rule in his favor be obeyed even when he knows perfectly well that a ruling is a violation of law.

For example, Judge Judith Hayes ruled in December 2009 that I could never in my life mention Dan Shinoff's name (even to talk to a lawyer to defend me from the defamation lawsuit filed against me by Dan Shinoff's firm, Stutz Artiano Shinoff & Holtz). This is clearly an egregious and brazen violation of the First Amendment, but Shinoff's law firm argued that Judge Hayes was within her rights to ignore the Constitution.

The Court of Appeal ruled against Judge Hayes and Shinoff.
If Mr. Shinoff truly didn't know that the injunction was unconstitutional, I'm wondering how good his legal advice is. The First Amendment is a pretty simple concept, after all. If Mr. Shinoff did know, yet continued to try to enforce the illegal injunction, then I'm wondering if he has the ethics we expect from a lawyer who is paid to represent public entities.]

Robert Fellmeth, founder and director of the University of San Diego’s Center for Public Interest Law: “It’s not a discretionary statute at all. You are ‘vacant.’ You’re gone.”

One issue may be that no attorneys involved in the case brought the right code section to the judge’s attention.

Fellmeth said if he was still a deputy District Attorney in the courtroom, “I would be sure to raise the issue before the court and insist upon the vacancy... The court did not seem to know anything about 1770 at all.”

For most of the day, Hernandez was not planning to leave office. Her defense attorney, Michael Crowley, said she planned to serve out her term, which would have ended in November.

“Ms. Hernandez pleaded guilty to the lowest misdemeanor available and the DA stated that at the sentencing hearing,” Crowley said. “She will not be running again, but there is no law precluding her from finishing out her term, which will be the culmination of two decades of service.”

District officials were scrambling most of the day to find a course of action.

“We haven’t received any information from the DA’s office with regard to (Hernandez) having to resign or received anything from them in writing regarding any plea,” said George Cameron, interim superintendent. “What we want to do is get access to the court’s decision and we’ll have it reviewed by our legal counsel.”

With Hernandez out of office, attention will now turn to Sweetwater.

Two members of the Sweetwater school board, Arlie Ricasa and Pearl Quiñones, already left office as a result of their convictions. Both pleaded guilty to accepting gifts above state limits, and Quiñones admitted to a conspiracy as well.

Two more school board members, Cartmill and Lopez, pleaded guilty last week to accepting gifts above state limits. Neither expected to leave office, and the judge found they could stay. Cartmill’s term is up in November, and Lopez is in office until 2016.

As with Hernandez, there was no discussion at their hearing of Government Code Section 1770 and its requirement that they leave office. Now that the code section is better known, it may come up at their sentencing. “The court has the discretion to make sentencing decisions, and we will provide our input at the hearing,” District Attorney’s spokeswoman Tanya Sierra said. Jill Galvez, parent of a Sweetwater student, said Lopez and Cartmill should simply resign. “In my opinion, the county board should ask for the resignation of these two board members and they should appoint four interim board members until we have our elections here in Chula Vista,” she said. “Both these board members violated public trust and they should step down from office. I’m shocked the judge didn’t ask them to.” Sharon Floyd, a former 35-year teacher in Chula Vista, agreed. “I think those two folks should resign immediately,” she said. “If my vote counts, they need to go. Now.” Not everyone feels that way. Chula Vista resident and parent Maty Adato said Lopez should remain in office. “I believe that Ms. Lopez is the only one that asks for accountability,” she said. “I don’t think Ms. Lopez should have to resign. She is the only one doing her job.” By the way, it was Talkwalker that alerted me to this story. I have become disappointed with Google alerts. Talkwalker gives me quick alerts on the words I ask them to look for, while Google alerts is often silent on important stories.