City Atty. Kimberly Hall Barlow said it was not up to her to determine if holding both seats is permissible, and that the decision would have to be made by the state attorney general or in court — but only if a legal challenge is presented.
If holding both seats was deemed incompatible, Fitzpatrick would have to resign his seat on the sanitary board, Barlow said.
Traditionally, public officials do not serve in more than one capacity at a time if the interests of the two governmental bodies cross or compete.
Mayor Gary Monahan has served on both the council and the sanitary district. District policy specifically allows council members to serve on the board. Monahan's sanitary district term ended in 2010.
Monahan said he doesn't see a reason why Fitzpatrick can't serve on both panels.
Fitzpatrick said because the commission answers to the council, there should be a clear exemption for him.
Newport-Mesa Unified school board member Katrina Foley sees it differently. She was elected to the school board while also serving as a councilwoman, and briefly considered also finishing her council term before eventually stepping down from it to focus on local schools.
"I think that it's curious that the same people who are supporting him to hold both seats were the ones who were threatening to sue me if I did," said Foley.
Foley added, "Basically, everyone who was appointed is a friend of those now in charge."
Fitzpatrick, who writes a column for the Newport Beach Independent newspaper and describes himself as an entrepreneur who looks for clean-tech opportunities, said even if serving in both seats is an issue, the process of challenging it is lengthy.
"I don't see anyone who would go through this process," he said, adding that if anyone did, he would look at the results then and make the best decision.
Aside from Fitzpatrick, there were 15 candidates who applied for four openings on the commission. Edward Salcedo, Robert Dickson were appointed. Planning Commissioner Sam Clark was also re-appointed.