The Tulare County Grand Jury report included some harsh criticisms of the Tulare Public Cemetery District (TPCD.)
Even though TPCD Trustee Xavier
Avila called the report a “big nothing burger,” emotions ran high at its
October 22 meeting as arguments irrupted and Leonor Castaneda, the district’s
manager, called the police twice to escort attendees out of the meeting.
The Grand Jury initiated
an investigation because it received several citizen complaints “alleging
various violations by the TPCD Board of Trustees.”
Grand Jury Report Findings
The Grand Jury report
cited, among other issues, the district’s difficulty in conforming to the Brown
Act, irregularities in finances and providing trustees with requested
information, including complete board packets. The report suggested that the
Tulare County Board of Supervisors (TCBOS) should have provided more oversight
of the district. The report was also critical of the Facebook page Caring
Cause.
Concerning its finances,
the Grand Jury report stated that, “Office staff was using antiquated
bookkeeping practices which led to inaccurate and lost payroll documents as
well as endowment fund practices not being followed for several years. Payroll
was done by averaging hours rather than hours worked.”
Its recommendation was for
the district to conduct an independent forensic audit covering the last five
years. The report also told the district the transfer of endowment funds needs
to be made on a more regular basis. Health and Safety Code 9065 (f) requires
the interest from the Endowment Care Fund be deposited in an Endowment Income
Fund and be spent solely for the care of the cemeteries.
Trustees Vicki Gilson and
Alberto Aguilar agreed with the Grand Jury’s findings. They have complained
about inaccuracies in the payroll. They have also pointed out that contractors
are being hired to do work at the North Cemetery without soliciting bids and
then approving expensive contracts without the approval by the board.
Aguilar has submitted
documents that prove that Castaneda has not been compensating the district
employees based on the actual number of hours worked. He mailed a letter on
October 8 to Tulare County District Attorney Tim Ward and delivered a copy to
the TCBOS that contained several exhibits exposing financial irregularities
concerning the district.
“I have requested charges
be filed against Leonor Castaneda, Xavier Avila and Stephen Presant. A copy of
my letter was also sent to Xavier Bacerra, State Attorney General,” he said.
Presant has said that the
district changed procedures in 2018 to paying the employees for the hours
worked instead of an average over two weeks. “No employee was cheated,” he
said.
When Avila complained
during the October 22 meeting that Aguilar had no proof that Castaneda was
incorrectly calculating employees’ pay he produced his documents.
“I pointed out to him that
in July, 2020, one employee was underpaid $343.00 and that same employee was
under paid $114.00 in the month of June, 2020. In the month of November, 2019,
the same employee was overpaid $80.00, and in the month of December, 2019, he
was overpaid $168.00,” said Aguilar.
Avila opposed a forensic audit,
and the district’s draft response to the TC Grand Jury echoed his sentiments.
“A forensic audit is an examination of an organizations [sic] financial records
to derive evidence which can be used in a court of law or legal proceeding.
There is no evidence of any financial irregularity to justify the large cost of
hiring a forensic audit specialist,” said the letter.
The Grand Jury report also
was critical that “information contained in the board packets are frequently
incomplete and not all members are provided information to which they are
entitled.” It recommended “a complete restructuring of TPCD’s policies,
procedures and internal controls be implemented within the next 12 months.”
Often, Gilson and Aguilar
raise items of concern on the agenda–upon which they have had difficulty
securing placement–and they have to bring their concerns up during trustee
comments. When two employees had been hired in June without the board’s
approval they could not get the item on the agenda. In terms of getting important
information, Aguilar has been unable to get the audit committee packet,
employee payroll detail, or bank statements.
“The reason that I have
had to hire an attorney is due to your on-going and continued refusal to
provide me with all material data that I have requested and you have not
provided,” Aguilar wrote to Present.
The district’s draft
response agreed with the Grand Jury’s assessment. “The Tulare Public Cemetery
District Board is committed to doing this and part of the action taken in
January of this year was to properly staff the office to account for the
workload required to meet board needs. It is felt this should alleviate this
situation.”
Board of Supervisors
should have intervened
The Grand Jury report
criticized the TCBOS for neglecting to provide essential oversight to ensure
that the public interest was served by the TPCD Trustees. “Despite much public
attention focused on the dysfunctionality of the TPCD’s Board of Trustees, the
TCBOS, has thus far declined to exercise its authority under the section of the
CHSC 9026.”
The California Health and
Safety Code (CHSC), enables a board of supervisors to intervene in such cases
and to appoint itself to serve as the governing board of a district. The Grand
Jury recommended that the TCBOS consider exercising its authority under the
applicable sections of the CHSC 9026 with a view toward bringing the governance
of the TPCD into compliance with generally accepted practices and state
requirement.
The report went on to say,
“They (the TCBOS) continue to reappoint trustees who have demonstrated an
inability/unwillingness to adhere to accepted practices as they relate to
conduct of Cemetery District board meetings.”
It certainly isn’t for a
lack of information that the board of supervisors has declined to get involved.
For many years now, TPCD board members and concerned Tulareans have complained
to the TCBOS about the district. Many concerned citizens have sent dozens of
emails and spoken during public comment at the TCBOS meetings. Trustees and members
of the public have also met personally with Supervisor Pete Vander Poel to
discuss the problems plaguing the cemetery.
Presant said it was
difficult to respond to this particular item because the report gave no
specifics on which trustees have not conducted themselves appropriately at
board meetings or how they have not adhered to accepted practices. Presant said
that he was considering asking the Grand Jury for clarification on this item.
In the TCBOS response to
the Grand Jury it disagreed. A draft response states, “From all appearances,
the District is in sound financial shape and the cemetery grounds have never
looked better. In the view of the Board of Supervisors, this shows that the
public interest is being served by the appointed Cemetery District board.”
The TCBOS response
included, “Wholesale replacement of the appointed board, which is the only
option available under the Health and Safety Code, is not warranted and would
detract from the local control that is vital to the success of the District in
meeting the needs of and being responsive to the community.”
Caring Cause Facebook page
The report said, “Caring
Cause is a volunteer group, which is disruptive to Board meetings…Members of
the group Caring Cause speak up in board meetings before they are recognized by
the Chairman and interrupt speakers during public comment sessions.”
Caring Cause is a Facebook
page created in 2017 to improve the cemetery grounds and the management of the
district. Individuals who “friend” Caring Cause’s are not part of any formal
group and are not necessarily supporters.
The founder of the Caring
Cause page, Elaine Hollingsworth, attends several meetings a year and always
speaks in turn and is respectful to the trustees. Presant agreed, and said that
he personally didn’t have a specific person in mind when he read the Grand
Jury’s criticism of Caring Cause. He did believe that some of the disruptive
attendees were also supporters of Caring Cause.
Community activist Alex
Gutierrez videos the TPCD meetings as a community service for all those who
cannot attend and posts the videos on Caring Cause’s page. Gutierrez has
frequently spoken out of turn or interrupted trustees but is attending the
meetings as a private citizen, not as a member of any particular group. He
feels it is his civic duty to speak up when public needs are being ignored. He
feels that at times it is the peoples’ only resort to be heard.
Gutierrez felt it was
hypocritical of the Grand Jury to criticize the TCBOS for not intervening but
then accuse Caring Cause of being disruptive when attempting to improve the
management of the cemetery.
Castaneda directed to call
the police
Fireworks were flying
before the meeting even started.
Before all the trustees
had arrived, Presant asked Aguilar what he thought of the district’s response
to the Grand Jury report. Aguilar told Presant that he thought the letter was
terribly written and rife with inaccurate information.
According to Aguilar,
County Counsel Mathew Pierce got very close to him and commenced to scowl and
threaten him. Pierce claimed that Aguilar’s behavior was rude and
unprofessional and that he was not going to allow it. Aguilar responded by
telling him to back off and said that he had no authority over him.
“I don’t work for you, you
work for me–so back off,” he said.
Pierce then asked him, “Do
you want me to leave?” and Aguilar responded, “There’s the door.”
When Pierce noticed that
some members of the public were recording the confrontation on their phones he
walked back to his seat.
On witnessing this
confrontation, Corina Lara protested and said loudly to Presant that Pierce
should not be allowed to treat a trustee so disrespectfully. Lara had seen two
pictures Linda Malloy, founder of the Cemetarians, flipping off a trustee and
had also seen a video of her saying f***
you to Aguilar.
Lara asked why Aguilar was
chastised for respectfully expressing his opinion while Malloy was allowed to
continue her vulgar behavior.
(Lara is an aunt of the
young woman whose casket Castaneda and the groundskeepers jostled because of
their inexperience in handling a casket. The family members were not permitted
to be pallbearers because of COVID. Castaneda had threatened the family that it
would be locked out of the cemetery if they called the office one more time
requesting they be the pall bearers.)
Presant directed Castaneda
to call the police to remove Lara from the meeting because she was being
disruptive. Once the police came Lara asked if she could stay in order to speak
during public comment and Presant gave her another chance.
The second incident
started when Gutierrez chuckled after Avila said a forensic audit would cost
$100,000 or more. Then Gutierrez continued to speak after Presant warned him he
was being disruptive. Presant told Gutierrez to leave the meeting and Gutierrez
refused. Presant then instructed Castaneda to call the police again.
The police arrived and
escorted Gutierrez out of the meeting without incident.
Gutierrez felt the entire
incident played out according to script and that Avila and Presant had the
confrontation planned.
“They targeted me before
the meeting,” he said
Going forward
Presant has planned a
tentative meeting the Monday before Thanksgiving to finalize the district’s
response to the Grand Jury report. Responses to the report are required from
both the TPCD and the TCBOS.
Their responses are due by
December 9.
Valley Voice
Catherine Doe
November 6, 2020
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