Font ResizeThe Rodeo-Hercules Fire District board has invoked a seldom-used legal device known as quo warranto to seek the ouster of member Bill Prather, contending he forfeited his right to hold public office after he commented that 5-foot-2 women are unqualified to be firefighters.
The action, which requires the consent of the state Attorney General's Office to go forward, follows the board's recently completed four-month suspension of Prather, which Prather contends was illegal. Prather was served with a Notice of Action in Quo Warranto last week.
On Feb. 18, following an open-session board discussion of a firefighter fitness test that Prather wants his district to adopt over the objection of the firefighters union, he opined that some firefighters are unqualified. Asked whom he meant, Prather said "5-foot-2-inch females that can't do the job." He said he was speaking of the fire service in general; the Rodeo-Hercules firefighting force is all-male, with the exception of one woman reserve firefighter. Prather has apologized publicly several times and also has repudiated his remark, saying he should have said "5-foot-2-inch person."
The immediate reaction to Prather's Feb. 18 remark appears to have been relatively muted. Minutes of the meeting note only that Firefighters Union Local 1230 President Vince Wells objected to Prather's comments and that district counsel William Ross
The next day, however, the union demanded that Prather resign and, failing that, that the board remove him.
Wells said Tuesday that he was not aware that the board had initiated the quo warranto action but that he knew the board had been contemplating doing so. He said Prather "has not stepped away" from his Feb. 18 comment and has made it worse by extending its discriminatory message to short people of any gender.
Prather on Tuesday vowed to fight the board's latest move, which he characterized as "misguided."
His attorney, Carleton Briggs, said, "Once the matter has been disposed of, the defendant will bring a federal action for violation of his civil rights, for attorney's fees and for punitive damages."
An Action in Quo Warranto -- Latin for "by what authority" -- aims to remove someone who "usurps, intrudes into, or unlawfully holds any public office or franchise," according to a paper from the state Attorney General's Office; an example is someone believed not validly elected.
The legal theory behind the district's action, according to a brief filed by Ross and co-counsel Karin Briggs -- no relation to Carleton Briggs -- is that Prather has made "discriminatory, hostile work environment statements" under the federal Civil Rights Act as well as state law, and that as a result he is holding office unlawfully.
A top First Amendment attorney, Terry Francke, general counsel of Californians Aware, characterized the district's argument as "nonsense."
"At least the process will yield, months from now, a published response showing how ridiculous this theory is," Francke predicted.
Carleton Briggs assailed the district's legal argument.
"Alleged misconduct in office simply is not a basis for a quo warranto action," he said in an e-mail. "Mr. Prather was legitimately elected. He did not 'usurp' his office."
Prather has served on the board since 1994. In 2006, he finished first in a four-person race for three board seats, comfortably ahead of J.R. Stafford, the current board chairman.
The quo warranto action also takes Prather to task for statements that it contends have had a "chilling effect" on the public's and district employees' participation in board meetings; and for statements that it contends puts a "limitation" on some individuals, such as 5-foot-2-inch females, to apply for employment with the district; and for a supposed comment by Prather that was reportedly overheard in a bar by a friend of board member Wally Trujillo that "I won't let any (expletive) female 5-foot-3-inch firefighter be a firefighter in the district, as long as I am on the board."
The quo warranto action also cites testimony from members of Local 1230 at a board meeting in June that Prather's statements had a "chilling effect" on negotiations with the board. The union and the district are in negotiations over a new salaries and benefits package, which is expected to go before the board next week.
Ross, Stafford and board member John Mills, who appears as co-plaintiff with the district and its board in the quo warranto action as "district resident, taxpayer and director," did not respond to a request for comment.
Bay Area News Group has submitted a public records request to the district for legal bills that it has paid in connection with Prather's Feb. 18 comment and its aftermath, as well as legal bills in connection with the ouster earlier this year of former fire Chief Gary Boyles that followed a no-confidence vote by the union in January after he brought the disputed fitness test to the board.
Reach Tom Lochner at 510-262-2760.
