Two years after the board of directors of the Cucamonga Valley Water District defied convention by switching the district’s election cycles from even-numbered to odd-numbered years, thereby giving its board members an extra year in office they did not have to earn at the polls, the panel is seeking to engineer a switch back to holding district board elections in even numbered years.
If top county officials and the registrar of voters go along with that bid, the board members will have succeeded in cutting themselves in on getting a six-year term, which is two years more than elected officials are customarily entitled to.
That ploy has a number of Rancho Cucamonga residents hopping mad, indeed angry enough for them to be importuning the county board of supervisors to derail the proposal by accepting the election cycle change only if it is effectuated immediately, meaning that two of the water district board members will have to stand for reelection this year rather than in 2020, such that they will not see the four-year term they were elected to in 2014 extended at all. If that fails, some Rancho Cucamonga residents have given indication they are ready to wage a recall effort against all five members of the board of directors, a daunting undertaking the directors’ critics believe will succeed given what they believe is the audacity of the water board’s sleight-of-hand in overleaping the voters to remain in office.
Historically, the Cucamonga Valley Water District held its board elections in odd numbered years. This put the district out of step with the overriding majority, though not all, of the other agencies, districts, governmental authorities and municipalities in San Bernardino County, which held their elections during even-numbered years, coinciding with either the National Presidential/Congressional or State Gubernatorial/Congressional elections.
In October 2005, however, the Cucamonga Valley Water District Board of Directors passed Resolution No. 2005-10-3, which dispensed with the 2007 election while changing the scheduling of the elections from odd to even years. The resolution consequentially extended the terms of office of the incumbent board members by one year. The board members asserted that the change was justified by the money the district would save as well as the increased voter participation that was anticipated by consolidating the district’s election with the other elections.
Ten years later, in 2015, the City of Rancho Cucamonga put on the ballot a special initiative, known as Measure A, a proposal for a local tax increase to improve street lighting, parks and landscaping. City officials sought the support of the water district and the water district board in its effort to garner voter approval of the measure. Rancho Cucamonga Mayor Dennis Michael and deputy city manager Lori Sassoon made a presentation to the Cucamonga Valley Water District Board at its September 22, 2015 meeting. At its October 13, 2015 meeting, the Cucamonga Valley Water District Board passed Resolution No. 2015-10-1 in support of Measure A.
Measure A, however, was proving overwhelmingly unpopular with Rancho Cucamonga’s voters. By early October 2015, social media sites run by Rancho Cucamonga citizen groups had an overwhelming number of residents expressing disapproval of Measure A and many advocating voting against the city council members at the next election. Measure A and the local politicians who endorsed it appeared to be in for a shellacking, and on November 3, 2015 Measure A was overwhelmingly defeated by a 77.9 percent to 22.03 percent ratio, with 2,289 votes in support and 8,103 votes against it.
One week before, at its October 27, 2015 meeting, the Cucamonga Valley Water District Board passed Resolution No. 2015-10-5 to return the district’s elections to odd years beginning in 2017, and, consequentially, skip the election scheduled for November 2016. The stated reasons for the change spelled out in a district staff report were to increase voter participation and to save money on election expenses.
In short order, however, a handful of Rancho Cucamonga residents took note of the change, questioning the move, seeing in it an effort by the water board to avoid the consequences of having sought to curry favor with municipal officials while deviating from the will of an overwhelming number of the constituents they represent. Over a period of months, the ranks of skeptics grew, forming into a group calling itself Stop CVWD Election Abuse. Questioned were the obvious contradictions between the water board’s 2005 and 2015 actions, and what some residents asserted were inaccuracies that were slipped into the public record.
In defiance of the sentiment against the change, the water district board pressed ahead with the application and the county board of supervisors and the county registrar of voters’ office approved and instituted the change in 2016. As a consequence, board members James Curatalo and Randall Reed, who had been reelected in 2012 and Luis Cetina, who had been elected for the first time in 2012, bypassed having to stand for reelection in 2016 and saw their four-year terms increased by one year until 2017, and Oscar Gonzales and Kathleen Tiegs, who had been reelected to their positions in 2014, had their terms extended one year to 2019.
Last year, the board, based on district counsel Jeff Ferre’s citation of SB 415, signaled its intention to reestablish the district as one functioning on an even-year election schedule, effective in 2020, a reversal of the action taken two years before.
SB 415, which was authored and sponsored by California State Senator Ben Hueso and approved by the legislature and signed into law on September 1, 2015, requires all state, county, municipal, district, and school district elections be held on an established election date and, as of January 1, 2018, prohibits a political subdivision from holding an election other than on a statewide election date if holding an election on a nonconcurrent date has previously resulted in voter turnout for a regularly scheduled election in that political subdivision being at least 25 percent less than the average voter turnout within the political subdivision for the previous four statewide general elections. Thus, Ferre insisted, the district had no choice but to switch its elections back to even-numbered years.
In accordance with that move, Gonzales and Tiegs will again see their terms extended one further year, from 2019 to 2020, and Curatalo, Reed and Cetina will see their terms extended from 2021 to 2022. Thus, Gonzales’ and Tiegs’ election in 2014, to what was then represented to be a four-year term, will in fact turn out to have been to a six-year term. And Curatalo’s, Reed’s and Cetina’s elections to what were represented to the voters as four-year terms in 2012 and again in 2017, will turn out to have been five-year terms.
That was too much for a significant contingent of Rancho Cucamonga voters, including those who had been active as part of the Stop CVWD Election Abuse group in 2016, when they had importuned both the district’s directors, the district’s legal counsel, the county board of supervisors, and the registrar of voters not to institute the switch to the odd-numbered year elections at that time, only to be met by what they considered to be an arrogant defiance of their wishes and pronouncements that the election changeover was not only well-advised but warranted and legal. Particularly galling was that the district and its ratepayers were paying Ferre and the firm for which he works, Best Best & Krieger, top dollar for legal advice. SB 415 became law in 2015, prior to the district effectuating the change to odd-year elections. Ferre, whose assignment is to monitor all of the district’s activity and its governing board’s actions for legal compliance, signed off on the election change and either failed to note or failed to inform the board of directors that the election change to odd-number years was not in conformance with the California Election Code, as amended by SB 415.
This week, just as he had come before the San Bernardino County Board of Supervisors in 2016 to request that it not grant the election change the Cucamonga Valley Water District Board of Directors had requested, Mark Gibboney addressed the supervisors at their January 9 meeting.
“I came to you in April of 2016 to ask you to stop the board of directors of the Cucamonga Valley Water District from changing their election schedule and extending their terms in office by one year for the second time,” Gibboney said on Tuesday. “Your response, even though your approval was necessary to complete the change, was there was nothing you could do. Well, now they’re at it again. Forced to change back to even-year elections by SB 415, the California Voters Rights Participation Act, which became a law before they voted to change to odd-year elections with your approval, they could have chosen to do it by shortening their terms in office back to the original four-year terms. Instead, they have voted to extend their terms by one year for yet a third time for directors Randall Reed and James Curatalo, twice for the other three.”
Both Reed and Curatalo were one-year extension beneficiaries when the district bypassed the 2007 election to go to even-numbered year elections in 2008.
Gibboney continued, “Two of those three, Kathleen Tiegs and Oscar Gonzales, have now voted to extend their terms in office by one year twice during a single term, giving themselves, if you approve it, a six-year term in office. The legislature could not have envisioned any special district using the law to act in such a blatantly self-serving manner.”
Gibboney told the board that if it kowtowed to the Cucamonga Valley Water District board in 2018 as it had in 2016, the assault against democratic principles would be compounded.
“Their resolution has been transmitted to your clerk of the board,” Gibboney said. “You should approve the request to change back to even years, but make it effective in November of 2018, not November of 2020, as they are asking. They will still have four-year terms and won’t be getting six-year terms. It should be noted, they have not appealed their resolution Number 2015-10-5 that declared their desire to conduct elections in odd years. It remains in full force and effect, approved and adopted in your resolution number 2016-15, and it is in direct conflict with their new resolution. On behalf of the group Stop CVWD Election Abuse, I ask you to use your authority, influence, even your imagination to get the right thing done in this situation. Approve the new request, with an effective date this November 2018 or return their resolution with direction to correct or to repeal their current resolution and with a suggestion that they at least reconsider the effective date so as to not be self serving.”
Matthew Munson, the Republican candidate for State Senate in the 20th Senatorial District in 2014 and the top vote-getter in that year’s primary contest who is now a declared candidate for the State Senate this year, posted on the Stop CVWD Election Abuse website, “Could we try for a recall on those board members?”
Cucamonga Valley Water District Board President James Curatalo acknowledged he was the prime mover behind the election cycle change application made by the district in 2015 and granted in 2016, admitted that in hindsight he recognized it was an error, and sees now that the voters had been and were to be shortchanged as a consequence of the rescheduling of the elections. Nevertheless, he suggested the root of the problem lay with action taken in Sacramento rather than by local and county officials. He simultaneously insisted there was no venality involved or self-serving on the part of the district’s board members, and that any political benefit they received was an inadvertency that was a function of state law rather than any calculation by them on their own behalf.
“When we did what we did originally, it was with the honest intention of migrating the district’s elections from a crowded even-numbered year ballot to a less cluttered odd-numbered year ballot when there could be far greater focus by the voters on the issues impacting the district,” Curatalo said. “We honestly thought that once the migration took place, there would be enough voter interest and turnout would be high, and that would justify what we did. We will never know now, after the state did what it did.”
Curatalo described a series of actions by local government authorities and officials predicated upon ignorance or incompetence.
“We didn’t know about that law [SB 415] at the time, despite the fact that it was signed by the governor just before our agency filed with the registrar of voters to make that change,” he said. “No one in our agency knew about it. They [the registrar of voters’ office, which serves as the county’s election authority] did not know anything about it. We wouldn’t have made the request if we knew about it [SB 415] and the board of supervisors wouldn’t have approved our application if they knew about it. I know there are politicians out there who are saying something different, and I know it is a hard thing to believe, but what I’m telling you is the truth. I’m the guy who brought this [the 2015-2016 change to odd-numbered year elections] to the consideration of my agency. I heard about it somewhere in 2015, and I thought it sounded like a good idea, and that it would be good for the district. People said that we were doing it for our own purposes then. Now that we are changing it back, they are saying we are doing it again for selfish reasons. When I asked to change it, selfishness was the last thing on my agenda. I truly believed it was a better way to hold our elections. Do I wish it never happened? Yes. There is too much confusion now. We did what we did with good intentions. The state did what it did unbeknownst to us.”
Having given himself and all of his water board colleagues a one-year extension on their elected terms without having to face the district’s voters in 2016 by moving to the odd-numbered year elections, Curatalo said, it was only relatively recently that he and his colleagues learned that the district would need to return to holding its elections in even-numbered years. That doing so will give him and his four colleagues another bonus year on the board is not something growing out of his or their calculation, Curatalo insisted, but rather a peculiarity in the law, a creature of the culture of Sacramento.
“In order to comply with the law, the deal was we had until January 1 of this year to comply,” Curatalo said. “Our legal counsel looked at the water code and California election law, and the way it was worded, we can’t shorten our terms. We can only comply with the law. The legislation does make us go back to even-numbered years in our elections.” Thus, he said, the entire water board is now stuck with having benefited by being privileged to serve two years on the board that they were not elected to.
Curatalo insisted that giving himself and his colleagues two more years on the board for which they did not need to complete in the marketplace of democracy was “just a consequence of the change of the election cycle. That was not an aim. It was never our intention to get an extra year.”
Curatalo said he understands that Gibboney and other members of the Rancho Cucamonga community are calling upon the county board of supervisors and the registrar of voters to make the switchback applicable to 2018 rather than 2020, but he said that simply cannot be effectuated.
“I would rather we make the transition this year than 2020, but our legal counsel said it can’t be done,” Curatalo said. “I asked him if we could hold the election this year. He said, ‘You can’t do that. That would shorten the term and the law requires lengthening the term.’”
With regard to making an adjustment to the term in going from either an odd-numbered year to an even-numbered year or from an even-numbered year to an odd-numbered year, Curatalo said Ferre impressed on him that the law calls for lengthening the term by one year rather than shortening it by one year. He said he contemplated simply defying that element of the elections code. Curatalo said, “So, I asked, ‘Why can’t we just do it and vote to hold the election this year?’ He [Ferre] said, ‘That’s not an option. If you do that, it wouldn’t be approved and you wouldn’t be in compliance with the law.’ Another thing he [Ferre] said is that ‘Once you do a change [in even/odd year election scheduling], you have to go through an election cycle.’”
Curatalo said that Gibboney had weighed in on finding a legal path for returning the district to return to the even-year election cycle this year, but that Gibboney’s analysis fell short.
“He [Gibboney] brought up a city that had done that,” Curatalo said. “They shortened their terms to move onto a different election cycle. But they were a city, and are under different law than districts. That option doesn’t exist for us.”
Curatalo said, “I wish the correction could have been in 2018. If we could do it that way, by shortening the terms, that would make up for the way the terms got extended the last time and that would be as close as we could get to correcting the problem. This is my doing. I was the one who brought the idea forward in 2015. Since I first got elected in 1999, I haven’t had my integrity questioned. People have disagreed with me, but no one has ever said I’m dishonest. This is the most awkward political situation I’ve ever been in. I realize not everyone believes that. I’m sorry for that. This was a mistake. If it were possible to go to the election in 2018, I’d do it in a heartbeat. And I am the one responsible for this. We went to odd-year elections, but no one knew we were going to go back to even years when we did it.”
On that score, Curatalo said that in late 2015 and into 2016, no one at the district considered or even knew about SB 415. “We missed it,” he said. “Do you know how many laws come out of Sacramento every year? The senators and assemblyman can’t remember them all, and they vote on them. Like all agencies, we try to keep up because what happens in the state capital means a lot in terms of dollars and cents when it gets to us, but it’s a huge job just to try to keep track. We missed it. That’s not an excuse, but it’s an explanation. It literally slipped through the cracks, this legislation. In all the discussions we had, in all the arguments from the opponents, including Mr. Gibboney, whom I respect, no one ever brought up the senate bill. I didn’t know about it and neither did the county supervisors. They wouldn’t have signed on it, if they had known.”
Curatalo was unwilling to find fault with the district’s legal counsel, Ferre, whose professional duties include making sure the district stays square with the law, even though Ferre failed to bring SB 415 to the board’s attention in a timely manner.
“He is a very good lawyer, and Best Best & Krieger is a top notch law firm,” Curatalo said. “They have served us very well for many years.”
Curatalo said, “I really did not know the state was going to do that. I didn’t see it coming. I love my community and I love my water district. I know what representative government is, and I try to cast my votes like those I represent would want, and I am doing that to the best of my ability. We have to correct the mistake I made. We have to comply with the law. We can’t go back to the election cycle in 2018. We can’t. That is disappointing people and now we have to work hard to get back on the path.”
Gibboney said that Curatalo was being duplicitous in maintaining that the reason for making the change to odd-numbered year elections was to save money and to increase voter turnout. Neither was true, he pointed out. Moving the elections to a ballot with fewer agencies participating entailed greater costs, Gibboney said. Moreover, he said, “The Cucamonga Valley Water District had a history of odd-year elections having voter turnout about 7 percent to 8 percent, then four elections in even years with turnouts from 35 percent in gubernatorial years to 80 percent in presidential years.”
Curatalo was further prevaricating, Gibboney said, when he said SB 415 snuck up on the district.
“He’s saying ‘We didn’t know about the law’ not only when they voted to change, but he’s saying they didn’t know about it until just recently,” said Gibboney. “That’s the company line in their staff report, about it just being recently passed. Tell him to read the minutes from their meeting of December 26, 2016 and listen to the audio recording of me telling them SB 415 would mean they’ll just have to change again. The Cucamonga Valley Water District either new about or should have known about SB 415. I find it highly unusual that the staff report was written by Jeff Ferre, the district’s general counsel. My understanding is general counsel gives advice and information to the board and can represent the board. He doesn’t work for or represent any single board member. I don’t know if it’s common for the Cucamonga Valley Water District, but legal counsel preparing staff reports recommending adopting resolutions at a meeting when the topic is a matter of first impression is uncommon. The staff report for the recommended resolution said SB 415 was a recently passed law. It said, ‘It is the intent of the board…’ to return to elections in even years starting in November 2020. It gave no other options that could have included changing effective 2018 or even 2022 and it didn’t give the options to consider changing to the June primaries in even years. That also is a general election. No cost analysis had been asked for in advance to even consider whether June might be more cost effective. I know at least one district in another county that decided June would lower elections costs for them. But the Cucamonga Valley Water District has never really been concerned about costs. During the recent campaign for Cucamonga Valley Water District board members election November 7, 2017, Mr. Curatalo replied to a post on Nextdoor, a social media site, that they, including legal counsel, didn’t know SB 415 was going to be passed or they never would have changed their elections back to odd years. First of all, it was passed before they voted to change. Also, they have two directors and several staff members assigned to a legislative committee that is supposed to monitor new legislation.”
Gibboney said Curatalo is misrepresenting that the district is unable to effectuate an immediate change back to even-numbered year elections, which would allow an election to be held this year, 2018, to prevent the board members from getting the benefit of a two year extension of their terms based on their own error. “The whole line about he wants to do it for 2018 but counsel told him the law prohibits it and the City of Claremont was able to change by shortening their terms but they are under a different law is a total crock,” Gibboney said. “Yes, the city is covered by a different law. The section of the elections code dealing with special districts says ‘special districts.’ The section of the same elections code dealing with cities is a different code section, but except for referring to cities and the other referring to special districts, the wording is the same.”
California Water Code Section 34705 states, “The term of office of each elective officer ….is four years or until his successor qualifies and takes office.”
It establishes the term of office as four years. It does not, however, say a term cannot be shortened. Nor does it say a term cannot be extended. Elections Code section 10400 (b) states, “Notwithstanding any other law, a governing body of a special district may, by resolution, require that its elections of governing body members be held on the same day as the statewide general election,” going on to state, “If a special district election is held on the same day as the statewide general election, those governing body members whose terms of office would have, prior to the adoption of the resolution, expired prior to that election shall, instead, continue in their offices until their successors are elected and qualified, but in no event shall the term be extended beyond December 31 of the year following the year in which the request for consolidation is approved by the board of supervisors.”
According to Gibboney, “Section 10400(i) only applies if the elected body extended its members’ elections into the future and there is a gap that exists from when the board members’ offices are set to expire on the old schedule and the new election. Section 10404 addresses that, but it does not prohibit the special district, nor the board of supervisors, from making the change effective on a schedule that would shorten terms, particularly when they have previously extended their terms on two occasions and are trying to give themselves six year terms.”
Despite Curatalo’s assertion that the moves to change the election cycles were not being done out of political calculation, Gibboney said, “City council elections are held to coincide with November general elections in even years, as were Cucamonga Valley Water District elections before the change. Director James Curatalo is planning to run for mayor or city council and by making the change, wouldn’t have to give up his Cucamonga Valley Water District seat if his elections for Cucamonga Valley Water District were moved to odd years. Legally I think he could run for both offices, but I think that wouldn’t go over well and the general benefit would be if he didn’t win on the city election, he would still have his Cucamonga Valley Water District seat. I even asked Mr. Curatalo about that rumor and he said although he has been asked to run for city council and mayor, he is not planning to. But what makes that speculation even more credible is Mr. Curatalo told me he was the one who brought the election cycle change forward and asked that it be brought to the board.”