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Legal snag delays hearing on underground wires

DEL MAR — Residents attending the Feb. 8 City Council meeting to discuss undergrounding utility wires in the Sunset district discovered that living in the county’s smallest city can sometimes cause a legal inconvenience.
Immediately after the meeting got under way, Mayor Richard Earnest informed the large crowd the item would have to be continued until Feb. 22 because of conflict of interest rules. Council members and the city attorney realized about an hour before the meeting that Councilman Mark Filanc lives within 500 feet of the district, making him ineligible to discuss the project.
Earnest was already recused because he lives in the district and Councilman Carl Hilliard was on vacation. The two remaining council members — Crystal Crawford and Don Mosier — didn’t make up the required quorum for a vote.
Residents may recall a similar problem one week earlier, when council discussed undergrounding in the North Hills district. That hearing took place, however, thanks to a provision in the law known as the rule of necessity.
During a special meeting Feb. 2, Filanc and Mosier were recused because they live in the North Hills district. Hilliard was on vacation, but had he been there he, too, would have had to excuse himself from the hearing because he lives in the district as well. That triggered the rule of necessity because a majority of the council members had a conflict of interest.
When that happens, the law allows enough members for a quorum to remain using a fair and public method to determine who will stay. In Del Mar, council members drew straws during the meeting. Filanc remained because he drew the shortest straw.
The rule of necessity wasn’t triggered for the Feb. 8 Sunset hearing because Hilliard was simply unavailable. Had he been there he could have participated. Using the rule of necessity under those circumstances isn’t allowed because residents could claim council manipulated the vote, the city attorney said.
On Feb. 2, after two hours of public input from about 50 people who mostly opposed the project because of high undergrounding fees, council voted to move the North Hills project forward with a mail ballot vote.
Council members will be asked to make the same decisions about the Sunset district at the Feb. 22 meeting.