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Ohlone’s legal advice on Nardolillo

When Ohlone President Gari Browning learned that Nick Nardolillo might be living in Livermore, she asked the school’s attorney if the college was under any obligation to investigate the matter.

Below is the attorney’s response, dated Dec. 11, 2009,  addressed to Ohlone executive Mike Calegari:

Dear Mr. Calegari,

I am responding to Dr. Browning’s inquiry to Paul Loya as to whether the District Superintendent or Governing  Board has any legal obligation to investigate the possibility that a Board member may no longer be meeting the residency requirements mandated by law for holding the office of Governing Board member.  We understand that neither the Superintendent nor the Board have actual knowledge of the nonresidency status of the Governing Board member at issue.

Based on the foregoing facts, we believe that the Superintendent and Governing Board have no legal duty or obligation to conduct an investigation of a nonresidency  rumor.  Since there is no statute or legal precedent requiring an investigation, there is no legal duty or obligation to take such action.  For your information, we are aware that other districts have been faced with this same issue and have chosen not to investigate.

Please contact me or Paul if you have any questions.

Janice J. Hein
Attorney at Law
Atkinson, Andelson, Loya, Ruud & Romo

Matt Artz

  • Robert

    What may be legal and what may be ethical are two different things.

  • Margaret

    Soooo, lemme get this straight; there is no residency requirement to run for the Ohlone board. You can say you are living in someone’s garage in Newark, Fremont or part of Union City when in reality your residence is somewhere like Carmel or Bakersfield. Why not outsource the job to Sri Lanka?

    As far as the lawyers are concerned this is a non-issue? Whatever the law mandates is just so much paper for the birdcage. What a great bunch of folks we have running the college. What message does this send to students? That cheating and lying are acceptable? Everyone who was aware of this charade needs to go.

  • Tony Irvington

    Well said Margaret.

    You should specify though, exactly where those who were aware of the charade “need to go” or they’ll go on a retreat to the Bahamas.

  • Margaret

    California election code 72103 explains the rules:

    a) Any person, regardless of sex, who is 18 years of age or
    older, a citizen of the state, a resident of the community college
    district, a registered voter, and who is not disqualified by the
    Constitution or laws of the state from holding a civil office, is
    eligible to be elected or appointed a member of a governing board of
    a community college district without further qualifications.

    Nardolillo was not a resident of the Ohlone College district area for at least ten years, according to Matt’s article. Some if not all board members knew, the college president knew. Guess they all thought the laws did not apply to Ohlone.

    The college also needs new legal counsel.

  • bbox231

    Where’s Ishan when we *need* him ?????????

  • Harmless Quick Fact Checker

    Margaret (and everyone else),

    One quick point to make…

    You wrote: “… let me get this straight; there is no residency requirement to run for the Ohlone board.”

    The attorney’s letter above does not address the legality of non-residency.

    It addresses the district’s obligation to investigate the matter.

    “…we believe that the Superintendent and Governing Board have no legal duty or obligation to conduct an investigation of a non-residency rumor.”

    Even now when the issue is admittedly less of a “rumor.”

  • Dean

    Let me get this straight. I run a company and there is rumor one of my staff are using company equipment, on the weekend, for personal use. I “DON’T” call him in and ask him if it is true or not. Give me a break. When the rumor came up, they should have called him in right away. Found he had moved to Livermore and asked to to resign or at the worst, finish his term and leave. I love the way these people back-track and cover their behinds. Renting a room is not residence when the rest of the family lives in Livermore.

  • http://fcnisbacon.wordpress.com/ Marty

    This makes me wonder what other crimes an Ohlone employee can get away with because there is “no statute or legal precident(sic) requiring an investigation” by the board.

    Also, Matt – did you transcribe this or was it a cut and paste from your source? I’m not a grammar and spelling snob, but a lawyer who misspells precedent – come on.

  • Matt Artz

    The spelling mistake was mine. I copy and pasted it, but had formatting issues and accidentally deleted part of “precedent” and then retyped it incorrectly.

  • billybob

    I suspect and hope that the DA will have all board members and Dr. Browning, give depositions. If they knew, and ignored it, then let them say it under oath. I suppose its possible they didn’t know for sure, however, it seems unlikely based on the fact that they used his Livermore address when they sent correspondence. Even thigh my instinct
    according to their legal council they weren’t required to investigate a rumor. But if that rumor had involved Bob Brunton, would they have investigated his residency? Perhaps Dr. Brownig would have left that one alone as well. But Im almost sure her predecessor would have loved that opportunity.

  • http://fcnisbacon.wordpress.com/2010/11/03/parting-gifts-for-election-losers/ Marty

    …a [reporter] who misspells precedent – come on.

    Just kidding. Hein’s thesis is still dumb.

  • Robert Brunton

    I would have welcomed an investigation on my residency. If they had it would be clear that for my entire time on the Ohlone Board – Fremont was my main residency. It was my understanding that it was not done because by not doing it a political rumor could exist that would and did harm me.
    As for what the board did or did not know about Nick. I can only write for my knowledge. I had heard rumors and when I asked Nick about them he said he had a condo in Fremont and lived with his son. He said he was within the law and I didn’t pursue it further.

  • bbox231

    Ishan – - – - oh,ISHAN – - – - olly olly oxen free

  • Ishan Shah

    Yes sir. You rang?

  • bbox231

    Come on, Ishan. . . . saddle up and carpe diem.

    As one who has been so close to the Ohlone Board and happenings can you lend any voice of experience to our understanding of this situation ?

    I’m very surprised you haven’t previously volunteered to help taxpayers understand why they should not be feeling, at the very least, that this Board has violated the public trust, and possibly, the law (?)

    You’ve been a pretty vocal supporter of this Board in the past, is this all to do about nothing ?

  • Robert

    Ishan is chomping at the bit to get Nardolillo’s seat.

  • Ishan Shah

    Box, I apologize for seemingly have been incognito the past few days as this story unfolded. I have been in Sacramento for the past 4 days in my Senator capacity representing the students of Region IV of the California Community College system at the CCC General Assembly. The hotel had little to no wifi, and I was quite occupied during the course of the convention. I now have some time and will be more than happy to engage in a little discussion

    I wish I could explain things better. I wish that I knew something that I could share with you. But, the truth of the matter is, as far as situations go- this is pretty much as muddied as they come.

    Here is what I feel, and I will share it with you and all who bother to scroll down and read. I understand your surprise. But the reasons I have held myself back until this point is fairly simple.

    1. I did not wish to speculate on information I was unsure of.
    2. I did not want to call out an individual who, in this country, is innocent until proven guilty in a court of law.
    3. I did not want to add on to a very difficult year for this college-which has seen the death of a security officer, a trustee, an unwisely timed raise, and the outsourcing of what was essentially a limb of Ohlone College in the bookstore-especially if I was not 100% knowledgable about the assumption I was going to be making.

    In a way all three points are one in the same. I did not want to put the cart before the horse because I have no authority whatsoever on making this call. The DA has opened an investigation, that much we now know. The DA will base the investigation, and possible subsequent litigation, upon whether or not she believes Trustee Nardolillo violated any of the main laws pertaining to residency status:

    California Election Code Section 349 which says:

    (a) “Residence” for voting purposes means a person’s domicile.
    (b) The domicile of a person is that place in which his or her
    habitation is fixed, wherein the person has the intention of
    remaining, and to which, whenever he or she is absent, the person has
    the intention of returning. At a given time, a person may have only
    one domicile.
    (c) The residence of a person is that place in which the person’s
    habitation is fixed for some period of time, but wherein he or she
    does not have the intention of remaining. At a given time, a person
    may have more than one residence.

    California Election Code 2031
    If a person has more than one residence and that person
    maintains a homeowner’s property tax exemption on the dwelling of one
    of the residences pursuant to Section 218 of the Revenue and
    Taxation Code, there shall be a rebuttable presumption that the
    residence subject to the homeowner’s property tax exemption is that
    person’s domicile.
    However, this presumption shall not apply in the
    event any other residence is listed as the person’s current residence
    address on any driver’s license, identification card or vehicle
    registration issued to that person by, and on file with, the
    Department of Motor Vehicles.
    If a person has more than one residence and that person claims a
    renter’s tax credit for one of the residences pursuant to Section
    17053.5 of the Revenue and Taxation Code, there shall be a rebuttable
    presumption that the residence subject to the renter’s tax credit is
    that person’s domicile.
    However, this presumption shall not apply in
    the event any other residence is listed as the person’s current
    residence address on any driver’s license, identification card, or
    vehicle registration issued to that person by, and on file with, the
    Department of Motor Vehicles.

    California Election Code 72103
    (a) Any person, regardless of sex, who is 18 years of age or
    older, a citizen of the state, a resident of the community college
    district
    , a registered voter, and who is not disqualified by the
    Constitution or laws of the state from holding a civil office, is
    eligible to be elected or appointed a member of a governing board of
    a community college district without further qualifications.

    349 is the most vague, and depending on wether or not the clear violations of 2031 and 72103 also contribute to 349 in the eyes of the DA will determine whether or not charges will be brought.

    All that being said, with the evidence Matt has brought before us, I do believe there are grounds for investigation. As for who knew what, and when they knew, I can not/do not want to speculate. I honestly don’t know and don’t wish to mislead anybody with what are purely personal opinions. Box, I support this board because they, along with the administration, brought this college back from the brink. They deserve credit for that accomplishment, and have earned my respect and trust in that light. I ran because I felt that this was a great group of people who work well together, and I strongly felt my perspective would contribute to productive conversation in the board room. However, I hope Trustee Nardolillo is thoroughly thinking through the possible toll a long, and drawn out, legal battle will have on the image and students of this institution.

    If you want an opinion, here it is: Mr. Nardolillo has the right to defend himself and plead his case. However, this time around, inaction is not an option, and I do believe it is time for this matter to be adressed and put to rest once and for all. It must be done for the sake of both the students and the public. Who adresses it, be it the college, the board, the DA, the FPPC, or the courts, doesn’t matter all that much to me. But, I will say that the DA’s office is an objective third party capable of making an educated and well researched decision. Time will tell how this unfolds. I find this situation very intriguing.

  • Ishan Shah

    Typo fix 3rd paragraph-

    But the reasons I have held myself back until this point are fairly simple.