San Bernardino County has sued two of its citizens in an effort to dissuade them from placing an initiative on the ballot that would restore members of the board of supervisors to the status of citizen legislators by making their offices part time positions and pegging supervisors’ compensation to the median household income in the county.
In 2012, a group of county residents, led by Wrightwood resident and former grand jury member Kieran “Red” Brennan launched what seemed a Quixotic effort to gather the 43,250 signatures needed on a petition to put before the voters a countywide initiative that would reduce San Bernardino County supervisors’ yearly $151,971 salaries and $67,500 in benefits to $50,000 in salary and $10,000 in benefits annually, a drop in total compensation from $219,471 per year to $60,000. Brennan’s seemingly impossible undertaking was furthered when he coordinated with others of a like mind and received financial and logistical assistance in the required signature-gathering effort.
The proponents succeeded in gathering 73,672 signatures to qualify the initiative for inclusion on the November 2012 ballot. The county registrar of voters later designated that initiative “Measure R.”
Alarmed at this development, a majority of the board of supervisors in July 2012 invoked their privilege as elected officials and placed a measure on the November ballot designed to counteract Brennan’s initiative that called for reducing the supervisors’ salaries by a more moderate amount – a $5,269 trimming to $146,702.per year, while allowing their $67,500 annual benefits to remain in place. The board did not need to gather any citizen signatures to qualify its proposal for the ballot, but did so on the basis of its own authority. That initiative was designated “Measure Q.”
Brennan and other proponents of Measure R insisted that Measure Q was a cynical attempt at sleight-of-hand to fool the voters and have them accept a bogus version of reform. Impervious to those assertions, the members of the board of supervisors called upon their campaign donors, raised over a half of a million dollars and engaged in a promotional blitz in which they jumped on the reform bandwagon, while praising Measure Q as the proper vehicle to effectuate positive change, while running down Measure R as unrealistic overkill.
That ploy worked. When the county’s voters went to the polls in November 2012, Measure R, which would have reduced the supervisors’ total compensation by 72.6 percent, was favored by a solid majority, with 326,939 or 64.25 percent voting for it and 181,907 or 35.75 percent rejecting it. Simultaneously, however, the voters passed Measure Q by a margin of 344,226 votes or 67.28 percent in favor to 167,369 or 32.72 percent opposed. Thus, Measure Q, which imposed a far more modest 2.4 percent reduction in overall compensation, was put into effect because it had passed with more votes.
Brennan went to his grave in 2013, convinced county officials had hoodwinked the voters and unfairly utilized their positions of authority to thwart the much-needed reform.
Last year, a citizen’s association led by Dave Gates and Gage Bruce calling itself The Red Brennan Group resurrected a reform proposal along the lines, and in the spirit, of what Brennan had proposed, determined to seek the envisioned reform that eluded the 2012 effort.
On October 26, 2017, county citizens, supported by The Red Brennan Group, submitted two initiatives to the San Bernardino County Registrar of Voters.
The first initiative called for transforming the county supervisors’ positions to part time and dispensing with the position of county chief executive officer by reinstating the position of county administrative officer as the county’s highest ranking staff member. This would undo the action taken by the county in 2010, when Greg Devereaux was hired to replace the county’s last county administrative officer, Mark Uffer. Devereaux was hired not as the county administrative officer but was installed as the county’s chief executive officer and was provided with a significantly higher salary than Uffer had received. Devereaux was given absolute autonomy over all county department heads, with the authority to hire and fire them without board approval. He was further provided with a so-called superbonus, which prevented him from being dismissed on anything less than a 4-to1 majority vote of the board, whereas Uffer and all of his predecessors had been subject to being terminated on a simple 3-to-2 majority vote of the board. The Red Brennan Group’s proposed initiative put a per capita limit on the number of county employees, while simultaneously making the board chairman the county’s chief executive authority. The declared intention of the initiative was to make the county more responsive to the electorate.
The second initiative called for imposing on the board of supervisors a requirement that they institute a policy of making county government employee pay and benefits equal to private industry pay and benefits in comparable positions.
After the initiative proposals were submitted to the county’s stable of in-house lawyers known as the office of county counsel for analysis, the county sued Gates and Bruce, identified as the petition’s proponents, claiming the initiatives violate the California Constitution, the current legal authority of the supervisors, and the single subject rule for initiatives. In its lawsuit, the county contended it should not be required to complete its ministerial duty of writing a ballot title and summary for the initiative proposals.
In response, the proponents, supported by and at some level indistinguishable from the Red Brennan Group, filed a countersuit, seeking a writ of mandamus asking the court to order the county and the office of county counsel to carry out its constitutional duty under the law to write a ballot title and summary so the petition gathering for the initiative could proceed. The Red Brennan Group then submitted seven further separate initiatives that, in essence, broke down the two original initiatives to overcome the county’s contention that the initiatives violated the single subject rule. This resulted in the county suing the Red Brennan Group with regard to four of the seven new initiative proposals. Further legal sparring ensued, which resulted in the Red Brennan Group submitting twelve initiatives in total.
The Red Brennan Group had relied upon the letter of the law and previous California Supreme Court decisions, which hold that attempts at qualifying voter initiatives should be provided with the opportunity to proceed to the signature gathering stage and that challenges of the legality or constitutionality of the specifics in the proposed initiative are properly taken up after sufficient signatures have been gathered. California law further provides for an initiative to be challenged on constitutional grounds if appropriate after it has been passed by the voters, if indeed it is passed by the voters.
The county, contending, that several of the initiatives as proposed by the Red Brennan Group were either prohibited by law or the California Constitution, outright refused to provide the ballot title and summary for most of the initiatives, which prevented the Red Brennan Group with moving ahead in the initiative qualification process, the next major step of which is to gather the requisite signatures. The county did provide a ballot title and summary for two initiatives. One of those calls for reducing the supervisors to part time status and giving them a commensurate reduction in pay and benefits. The second one seeks to impose a one-term limit on the supervisors, preventing each member of the board from serving more than four years in that capacity. The county sued for relief of their magisterial duties on seven other initiatives, which provoked the Red Brennan Group’s petition for a Writ of Mandamus.
Yesterday, January 18, Superior Court Judge David Cohn denied the request for a Writ of Mandamus, ruling, essentially, that the county was justified in refusing to provide the requested titles and summaries on the initiatives it deemed unconstitutional.
Speaking with the Sentinel after the hearing, Tom Murphy, a spokesman for the Red Brennan Group, characterized Cohn’s ruling as “a clear excursion from the majority of case law that disfavors pre-ballot challenges based on substantive issues. Judge Cohn ignored county counsel’s clear mandate under California law to perform its ‘ministerial duty.’”
Murphy said the Red Brennan Group “must now choose the lesser of two evils – acquiesce to the county’s heavy-handed attempt to take away citizens’ rights granted by Article II Sec. 11 of the California Constitution or expend precious resources by appealing the decision to the Court of Appeals.”
Murphy said the group had initiated the initiative process in October, believing doing so would allow enough time to carry out the petition gathering effort and other actions necessary to get the initiative on the November 2018 ballot. But the county’s action in fighting the effort had interrupted that timetable, Murphy said. And Cohn’s ruling, which will require that the group wage an appeal and prevail, has exacerbated the time crunch, Murphy said. “Even if we get an expedited hearing and decision from the Appellate Court and a favorable ruling, that would leave us with just about half the time we would have ideally wanted to get the signatures before the submission deadline for the November election,” Murphy said.
Murphy stressed his belief that the county’s objections to the original proposed initiatives and the follow-ups to it were invalid, lending credence to the group’s perspective that the county’s leaders, in particular the board of supervisors and the senior county staff that exists as its support network, were resistant to the reforms the Red Brennan Group wants to effectuate.
Murphy said the Red Brennan Group and its legal advisors anticipated that the county might contend that the initiative the group was proposing did not comply with the single subject initiative rule, but that they believed they had the substantive and legal grounds to overcome that objection. “Our intent was to create a county leadership accountability initiative, and the reforms we were seeking were bullet points in that formula for accountability,” Murphy said.
-Mark Gutglueck