The county board of supervisors this week on a 3-2 vote turned back an effort by members of the Cucamonga Valley Water District’s governing board to engineer for themselves an election year shift that would have given them two further years in office  they would not need to earn at the polls.
Two years ago, those at the helm of the Cucamonga Valley Water District defied convention by switching the district’s election cycles from even-numbered to odd-numbered years, thereby extending their terms in office by one year. This week, they asked the board of supervisors to allow the district to return to holding its elections to even-numbered years, giving themselves another one year extension in office.
Had the board of supervisors granted the change, it would have been the district’s third such move to shift its elections cycle in 13 years. Such election cycle changes are extremely rare, with the majority of political jurisdictions in San Bernardino County having never changed their electoral patterns.
Historically, the Cucamonga Valley Water District – previously known as the Cucamonga County 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 hold their elections during even-numbered years, coinciding with either the National Presidential/Congressional/State Legislative or State Gubernatorial/Congressional/State Legislative 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 entailed extending 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, as voter turnout in odd-numbered year elections fell significantly below that of the voter turnout during even year elections when large numbers of local, state and national offices are being contested.
A decade later, 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 save money on election expenses and, curiously, increase voter participation. Of note was that the water district’s action to initiate its election cycle change in 2015 came shortly after Senate Bill 415 achieved final passage and was signed into law by Governor Jerry Brown in September 2015. Senate Bill 415 requires all state, county, municipal, district, and school district elections be held on an established election date and, as of January 1, 2018, put in place a prohibition against a political subdivision holding an election other than on a statewide election date if holding an election on a nonconcurrent date 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.
In short order, a handful of Rancho Cucamonga residents took note of the change and questioned the move, seeing in it an effort by the water board to boost their own political fortunes by postponing their elections and giving themselves an extra year in office. In defiance, the district board members ignored their constituents’ calls to reconsider their action and went so far as to have the district’s general counsel, Jeff Ferre, double down, insisting to the county board of supervisors that it had no discretion in the matter and was legally bound to simply ratify the district’s request to move to the odd-year elections. The county did so, thereby bypassing the 2016 election. 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, did not have 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.
Since that time, Ferre and the district’s board members – Curatalo, Reed, Cetina, Gonzales and Tiegs – have taken stock of Senate Bill 415, and have moved to return the election-year cycle to even-numbered years. The district’s application, as presented by Ferre, was that the change be effectuated as of 2020, such that the 2019 election is bypassed. Under the terms of that proposal, Gonzales and Tiegs were to again see their terms extended one further year, from 2019 to 2020, and Curatalo, Reed and Cetina ware to see their terms extended from 2021 to 2022. Thus, Gonzales’ and Tiegs’ election in 2014, to what were then represented to be four-year terms, were to be turned into six-year terms. 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, were to be transformed into five-year terms.
According to Ferre, the board of supervisors should simply sign off on the request, as under law, he claimed, it has no discretion in the matter.
Indeed, the clerk to the board of supervisors, Laura Welch, had scheduled the item to be considered as a part of the consent calendar at the Tuesday March 20 meeting of the board of supervisors. The consent calendar is reserved for noncontroversial issues that are accorded routine passage. But Supervisor Janice Rutherford, in whose Second District the City of Rancho Cucamonga and the Cucamonga Valley Water District lie, pulled the item from the consent calendar so it could be discussed at length and voted upon separately.
Michael Scarpello, San Bernardino County’s registrar of voters and chief election officer, offered an overview of the issue.
“Approval of item 57 would allow the Cucamonga Valley Water District to move its elections from the November elections held in odd years to the November elections held in even years beginning in 2020,” Scarpello said. “Because this is a fairly complex issue, I’d like to walk you through the legal requirements and the history of the district’s movement between election cycles. Special districts such as Cucamonga Valley Water District typically hold their governing board elections in November of odd-numbered years. However, California law authorizes a special district to move its elections to even years. To do so, the board of directors of the district must pass a resolution and then submit the resolution for approval by the county board of supervisors. The law states that the board of supervisors shall approve the resolution unless it finds the ballot system voting equipment or computer capacity is such that additional elections or material cannot be handled.”
Scarpello continued, “Now the history: On October 25, 2005, the board of directors of the Cucamonga Valley Water District adopted such a resolution to move its elections to even years and the San Bernardino County Board of Supervisors approved the resolution. California law also allows a special district to repeal its resolution to move its elections. The process to do that is similar. The district must pass a resolution and then submit the resolution for approval by the board of supervisors. On October 27, 2015, the board of directors of the district adopted such a resolution to repeal its move to the even-year election cycle and this board approved the request on February 9, 2016. At the time there was some concern because the impact analysis, written by my office, predicted that moving the election would cost the district more money. However, the law is unclear on what criteria the board must use in deciding to approve this type of request, and county counsel concluded at the time that financial concerns weren’t adequate to reject the district’s request. The result of the district’s move back to the odd-numbered year election cycle was that the terms of office for three directors whose terms were scheduled to end in 2016 were extended by one year to 2017. In addition, the terms of office for two directors whose terms were scheduled to end in 2018 were also extended by one year to 2019. California Elections Code section 10404(i) recognizes that this term extension will occur.”
Scarpello said, “That kind of sums up the historic moves of the district. Now I’d like to move on to today’s item. On December 20, 2017, the district’s board of directors adopted a third resolution. This resolution requested, for a second time, that the district’s elections move to even numbered years, commencing with the November 2020 Presidential General Election. The district states it is making this request in order to comply with Senate Bill 415, which was enacted by the legislature in 2015 and requires that districts with low voter turnout in odd-year elections present a plan to move their elections to even-year elections no later than November 2022. The district’s request to move the election is being presented to you today for your consideration. The effect of approving this resolution is that three of the directors who appeared on the ballot and were reelected in 2017 and are scheduled to serve a term ending in 2021 will now have their term extended by one year and their term will now end in 2022. Two of the directors who were last elected in 2014 and are currently scheduled to end their terms in 2019 will have their terms extended an additional year and their terms will now end in 2020, the result being that these two directors will end up serving a six year term.”
Scarpello then indicated that it appeared the five members of the Cucamonga Valley Water District board were gaming the system to add years on to their elected terms without having to stand for election, but said the loophole in state election law presented them with the opportunity to do just that.
“After discussing this issue with county counsel, it appears that the board of supervisors must approve this request unless it finds that the ballot style voting equipment or computer capacity is such that additional elections or materials cannot be handled,” Scarpello said. “As part of this process, my office has conducted an impact analysis and determined that we can handle the move. As a result we are recommending that the board approve this resolution.”
At that point, Rutherford sought to focus on the water district’s 2016 move in defiance of Senate Bill 415.
“You mentioned legislation, SB 415, that was passed in 2015,” Rutherford said.
“That’s correct,” said Scarpello.
“So, the district’s request in 2016 to this board at which time county counsel told us we had no discretion at that point, how does the district explain that they made a request that was out of compliance with already passed state law?” Rutherford asked.
“I don’t believe that they have explained that to me,” Scarpello responded.
“We’re dealing with conflicts of both state election law and state water law and there seem to be some inconsistencies between the two,” Rutherford said. “Water law seems to indicate terms shall be four years and the district is relying on that language to say that they cannot shorten a term. The legislation passed allows for terms to be lengthened and yet I think we’ll hear from public comment and certainly some of the correspondence that I and I believe my colleagues have received that there is considerable upset in the community about six year terms made by this many changes in election law. And so, that’s frustrating and I’d like to understand this board’s discretion. It seems to me the fair thing to do is to hold an election this fall,” Rutherford said, when “we’ll be voting on a whole bunch of other things.” She said an election should be held this year “for those seats that would have been extended, so that at least some of the seats don’t receive the kind of extension that is unappealing to voters. You’re telling me this board has no discretion to hold the elections in the fall of this year, or perhaps counsel is telling me that.”
San Bernardino’s top in-house lawyer, County Counsel Michelle Blakemore, then responded, “That is correct, supervisor. The way the election code reads, the board’s authority is extremely limited, and that’s to allow the local agencies to control their own elections. The 2018 election that was already moved to 2019 – that is not what is in front of the board through the adoption of the district’s recent resolution. So we cannot, there is no authority for the board to, shorten that term to 2018.”
“So, the district itself would have had to make that decision, and make a request to this board,” Rutherford said, signaling that she was not prepared to simply accept rubberstamping the district’s request and thereby conferring upon the water district board members the advantage of extending their terms.
Blakemore responded, “It’s a little unclear as to whether they can actually do that. There is… We are aware of one irrigation district in Stanislaus County that recently voluntarily agreed to reduce their term to a three-year term to 2018. There doesn’t seem to be any clear authority for that. I think the problem is the legislature contemplated when districts were allowed to switch the elections, you get the four-year term and then you’d get the additional year. So that was clearly contemplated by the legislature. This is a very unique situation, and I don’t believe we found anything else in the state where this occurred where you had a four plus one and then a plus one because of the change again, so we found the six-year term troubling, but we could find no authority that says the district cannot do that.”
Rutherford than asked for someone from the water district to come forward.
Jeff Ferre, a partner with Best Best & Krieger and the general counsel to the Cucamonga Valley Water District, did so. Rutherford asked him to “speak to the district’s willingness to consider redoing the resolution for something that does not extend the terms if that’s this board’s desire.”
“The issue here is that we cannot have all five directors up for election at the same time,” said Ferre, slightly off topic, seemingly seeking to stand Rutherford off with some fast talk. “So, having an election in 2018 would push them all together for the next time they would be up for election.”
Seeing that Rutherford was not buying into his syllogism, Ferre parried, saying, “This is certainly not our choice to have a six-year term. We’re certainly hearing about it at our level, as well as you’re hearing about it here. I would defer to the fact that we’re trying to comply with SB 415 that calls for by January 1, 2018 to make a plan to change, not that in 2015 you had to do it right away. And that decision had to be based on voter turnout on three previous elections, so as soon as we started that process, we came back to you and that’s why we are here today. The other issue with 2018 is, along with this issue, we’ve just received a letter from a law firm regarding a Voting Rights Act issue and challenging our at-large elections. I believe one of the colleagues of the people who have objected is referenced in that letter, so we’re now dealing with two fronts. For us to go through the Voting Rights Act analysis and decide whether or not to change to by-division and do all of that before the 2018 Election is not feasible.”
Ferre then asserted that the supervisors had no choice but to go along with the water district’s plan to return its election cycle back to even numbered years just two years after it had demanded that the board of supervisors ratify moving the district to odd year elections, thereby politically benefiting the water district’s elected leadership.
“The item before you is simply to approve it, and you can only disapprove it if it won’t fit on the ballot,” Ferre intoned. “That’s good news for you, ’cause it’s really not in your discretion. Then the blowback from that, obviously, has been and will continue to be back at the water district, where we’re now dealing with the second front of the Voting Rights Act issue.”
Ferre appeared to be offending Rutherford with every sentence he uttered.
“I appreciate that perspective,” Rutherford said, somewhat acerbically, and then suggested that Ferre was insulting her intelligence. “It is extremely frustrating that we sit here and have no discretion over an issue that is so clearly contentious in the community. I’m not understanding why all five members would be up in 2018, why you still can’t stagger those terms.”
Ferre again tried to talk Rutherford in circles. “Well, if you had an election in 2018, those folks would be up in 2022, and the way that we’ve changed it now with the election, the three directors that were just elected in 2017 have to have their term extended, so it could not be less than 2021, it would have to be 2022. So, you have both the two directors and the three directors under this plan,” said Ferre, conveniently omitting that there is to be an election in 2020. From Rutherford’s expressions and body language, it was clear Ferre was making no inroads with his brand of logic.
With Ferre on the ropes, Rutherford zeroed in for the knockout. “How did this request come to the board in 2016 without recognition of SB 415 at that time?” she asked. “How could the district have been unaware of the law?”
Paralyzed like a deer in highbeam headlights, the best Ferre could do was prevaricate. “We were unaware… We were, uh, uh… We were aware of it, but…” he said, grasping at trying to recover before spewing out a set of irrelevancies and seeking to shift blame to the county for having gone along with the district’s proposal in 2015 and 2016. “But as I mentioned earlier, 415 went into effect at the end of that year and set a deadline for January 1, 2018 to decide whether or not the voter turnout would call for a need to change to even year elections. And the request to change to odd numbered years was worked in concert with county staff at the time, so it was not just us, it was county staff at the time, also, that came forward and said this is something that was going to be changed. As soon as SB 415 went into effect we did the analysis and that’s why we’re here today.”
Rutherford, recognizing Ferre’s statement as a misrepresentation in that Senate Bill 415 had become law prior to the district making its call in 2015 to switch to odd-year elections, called Ferre a liar, in not so many words. “In fairness,” Rutherford said, “I remember at that time, you and our staff also came forward and said we had no discretion then. So if your argument is today we have no discretion, then we had no discretion then.”
Caught out, Ferre responded, “True.”
Rutherford said, “If this was the district’s decision, then you’ve got to own it fully. You can’t say county staff helped you accomplish that…”
Still attempting to save face, Ferre interrupted Rutherford, “We did,” he claimed. “SB 415 required that we go through the analysis and make that decision on January 1, 2018. We did so. And that’s why we’re here today.”
Rutherford then drove home the point that in 2015 and 2016 there was enough information available so that the water district’s switching of its election cycle to odd-numbered years was either cavalierly made and/or not fully thought through or outright ill-advised and contrary to Senate Bill 415.
Ferre then acknowledged it was poor voter turnout in “three previous elections” to 2017 – meaning historically going back to 2003, 2001 and 1999 – that led to the conclusion that the election cycle had to come back to even years.
Whether through a slick calculation that included a cynical manipulation of the electoral code or through ignorance and incompetence, Rutherford implied, the water district’s leaders were now asking the board of supervisors to give them a benefit they did not deserve and should not be entitled to.
“I’m not suggesting the district or any of the directors had any ill-intent,” Rutherford said in attempting to soften what she was about to say. “I’ve talked with them and I believe they believed they were doing the best thing to boost turnout. Nonetheless, we’re now faced with a situation where they are extending their own terms far beyond what I believe the legislature envisioned and far beyond what is the appetite of the community. So, understanding our lack of discretion and limitations, I’m extremely frustrated with it. This is not how democracy is supposed to work. You don’t get to just extend your term over and over again.”
Mark Gibboney, a resident and ratepayer within the Cucamonga Valley Water District and a prime mover in the group Stop Cucamonga Valley Water District Election Abuse, pointed out that water district officials were backtracking and changing their story. He characterized Ferre’s statements as “so much new hogwash presented to you.” He said that Ferre was “confusing the issue with things that don’t have any effect.”
Gibboney said that the district’s “request to change to even-year elections should be approved, but effective this November, 2018.” He said, “Obviously, to make a change in the election schedule, the four-year terms has to be changed some way. Nowhere in the code does it say terms can’t be shortened.”
Gibboney said the assertion that “the Elections Code recognizes this term extension will occur is a gross misstatement of the Elections Code.” Noting that he and others opposed the shift to odd year elections two years ago only to be bulldozed over by the water district’s board members, Gibboney said action taken now should correct the miscarriage of unfairly extending the water board members’ terms and should not exacerbate the unfairness. That could be done, he said, by simply reassuming even-year elections this year rather than in 2020. “Making it effective this November will mean directors Reed and Curatalo will have three terms lasting a total of 13 years, only one year more than a four-year average instead of the 15-year total or five year average for the way they are asking. Director Cetina would have two terms lasting a total of eight years, exactly what you would expect with four-year terms instead of the five year average for the way they are asking. And directors Gonzales and Tiegs would serve their current term of four years exactly four years, not the six years for the way they are asking to do it. CVWD’s history of changes and extensions should be taken into account to stop these serial extensions. You, the supervisors, can do that. Elections Code Section 10404 says if a board of supervisors approves a resolution, a special district election shall be conducted on the dates specified by the board of supervisors. There’s your authority. You do have discretion. It’s ironic that they’re coming before the board to ask that they have five-year terms, six-year terms, and they’re doing so with a straight face.”
Blakemore told the board of supervisors that “I understand what Mr. Gibboney is saying, but this board does not have discretion.” She said that the only grounds upon which the board of supervisors could withhold endorsing the water district’s request was if doing so would impact the county elections office’s ballot material, election equipment or computer capacity.” Those opposed to granting the water district’s board members the term extensions, she said, could “take it to court. The six year term, if they want to challenge that, we really don’t know where a court would come out on that. The board has no authority to not approve the resolution, given that Mr. Scarpello said there is no effect on the registrar system.”
Supervisor Curt Hagman, while saying he felt that the board of supervisors was essentially bound by the law in having to support changing the district back to an even-year election cycle, suggested that the district’s voters should use their power of recall to remove the board members from office for the way in which they had manipulated the system to provide themselves with extended terms.
Before the vote on the matter was taken, Rutherford said, “I understand what our staff is saying about the lack of discretion, but I think on behalf of the voters of the district I will be opposing the measure today.”
Hagman then moved to ratify changing the Cucamonga Valley Water District’s election cycle back to even numbered years beginning in 2020. When no others seconded the motion, Robert Lovingood, as the board chairman, seconded it. The vote was cast, and the motion failed, with Lovingood and Hagman supporting it and Rutherford and supervisors Josie Gonzales and James Ramos opposed.
After the vote, Mark Gibboney told the Sentinel, “I wish the board of supervisors had approved the resolution to return elections to even years, but with the modification that it would have been effective this November. Short of that, I am pleased that they didn’t approve the resolution, as it was, which would have extended some of the CVWD directors another year for the third time, the others for the second time, and two of the directors would have ended up with six year terms.”
Gibboney said, “I think the attorney for CVWD successfully convinced county counsel that the law doesn’t permit a change to be made by reducing terms, but nowhere does a code say that, and I think her [Blakemore’s] interpretation that Elections Code section 10404(i) “recognizes that this term extension will occur” is a misstatement of what it actually says, which is that “if” the new election is scheduled after present terms expire, the current terms will be extended to the new election schedule. The word “if” actually recognizes that another alternative is possible and that is obviously scheduling the new election before the present terms expire (reducing them), in which case there will be no gap and section 10404(i) simply wouldn’t apply. If the legislature had wanted changes in election schedules to only occur by extending terms, they would have said that.”
Gibboney noted that “County counsel also told the board of supervisors they have no authority to select the date a change in elections becomes effective. Elections Code section 10404(j) says ‘If a board of supervisors approves the resolution pursuant to subdivision (e) (which is what they were considering) the special district election shall be conducted on the date specified by the board of supervisors, ….’ With that statute, I’m perplexed how county counsel could tell them they don’t have the authority to specify the date. I also heard the county registrar of voters, Michael Scarpello, tell the board of supervisors, ‘There’s nothing that says you cannot reduce the terms.’”
Repeated efforts to reach Cucamonga County Water District Board President Jim Curatalo for comment were unsuccessful.