Dems Use GOP-Dominated Board’s Brown Act Faux Pas To Block Selection

A single agent of the Democratic Party descended upon the Republican-dominated chambers of San Bernardino County’s governmental echelon on Tuesday and with a fusillade of pointed statements that were cut short by Board of Supervisors Chairman Robert Lovingood yet succeeded in at least temporarily derailing the ruling coalition’s planned trajectory of keeping the GOP lopsidedly in control of the reins of county government over the next two years.
In the aftermath of the election of Third District San Bernardino County Supervisor James Ramos to the California Assembly representing that body’s 40th District on November 6, county officials began casting about as to how Ramos’s board position would be filled for the remaining two years of his term. Ramos was first elected in 2012 to a four-year term in the district that includes Barstow, Big Bear, Twentynine Palms, Yucca Valley Yucaipa, Redlands, Highland, Loma Linda, Grand Terrace, the eastern portion of the City of San Bernardino, a sliver of Colton and 24 disparate unincorporated county areas. He was reelected to a second term in 2016.
In November, though no official winner had yet been declared, it appeared that the Democrat Ramos had an insurmountable lead over his Republican rival, San Bernardino City Councilman Henry Nickel, in the race for the Assembly in the 40th District. The board invited applicants for the position Ramos was about to vacate. This, apparently, upset Ramos, whose wish was that the board simply replace him with his assistant chief of staff, Chris Carrillo, also a Democrat. A shouting match between Ramos and Lovingood ensued on the Fifth Floor of the county administration building at 325 North Arrowhead Avenue in downtown San Bernardino, where the supervisors’ offices are located. This confrontation between Ramos and Lovingood was unexpected and out of character for both men, who had together first been elected in 2012 and between whom there had consistently seemed to be a warm, cooperative and abiding relationship for nearly six years. In essence, the Sentinel is informed, Ramos detected at that point an intent on the part of the majority of the board that would remain in place after his departure to fill his board position, which is considered to be a nonpartisan office, with a Republican.
The partisan dynamic is a powerful one in governmental circles throughout San Bernardino County. Once a dependably Republican state, California began roughly 30 years ago to gradually tilt toward the Democratic Party, though various areas remained strongly Republican. Among those has been San Bernardino County. The Party of Lincoln has maintained its grip on the county even in the face of significant challenges over the years, including the indictment and conviction of some of the leading Republican politicians and party leaders and officials in the county as well demographic shifts against the Grand Old Party locally. Indeed, in 2009 the Democrats eclipsed the Republicans in terms of party affiliation in San Bernardino County overall. Yet through running well-funded and aggressive campaigns that appealed to voters unaffiliated with either of the major parties and making energetic efforts to ensure that registered Republicans turn out to vote, the Republicans have had their candidates remain in office in far greater numbers in San Bernardino County than the Democrats, whose county party structure has been fragmented and uncoordinated and its electioneering efforts for the most part and with only limited exceptions listless. With Ramos’s departure and the board at three-quarters strength, the Republicans on the panel – First District Supervisor Lovingood, Second District Supervisor Janice Rutherford and Fourth District Supervisor Curt Hagman – outnumber and overpower the lone Democrat, Fifth District Supervisor Josie Gonzales. Under San Bernardino County’s charter, the board must fill any vacancy among its ranks within 30 days or the decision automatically is to be made by the governor. The charter does not provide for conducting a special election to fill the void, but leaves the methodology for selecting the replacement board member to the board. Ramos was sworn in as an assemblyman on December 3 in Sacramento. By prior arrangement his resignation as supervisor was to be effective simultaneous with his ascendancy to the Assembly. Thus, the board of supervisors has until January 2, 2019 to install his replacement on the board, or the appointment will fall to outgoing Governor Jerry Brown or Governor-elect Gavin Newsom, whose inauguration is scheduled for January 7. Both Brown and Newsom are Democrats, so the controlling majority on the board of supervisors is determined to make its own selection to head off the possibility that Brown or Newsom would appoint a Democrat.
A total of 48 applied for the position at stake including former San Bernardino County Third District Supervisor Dennis L. Hansberger, San Bernardino County Republican Central Committee Chairwoman Janice Leja, one-time Democratic Congressional Candidate Kaisar Ahmed, Republican Central Committee member Damon L. Alexander, Yucaipa Mayor Greg Bogh, Loma Linda City Councilman Ronald Dailey, Former San Bernardino County Fifth District Chief of Staff and Inland Empire Taxpayers Association Founder Chris Mann, San Bernardino Mayor Carey Davis, Matthew Campos, Chris Carrillo, one-time Democratic Congressional Candidate Libbern Cook, former Third District San Bernardino County Supervisor Neil Derry, former Twentynine Palms Mayor Jim Bagley, former San Bernardino County Superior Court Judge Robert Fawke, Loma Linda Mayor Rhodes Rigsby, Pat Ferraris, Brian Hairston, former Republican Congressional Candidate Sean Flynn, former Loma Linda Councilman T. Milford Harrison, Barstow Mayor Julie Hackbarth-McIntyre, Karen Ickes, Former Rialto Mayor and California Assemblyman John Longville, current Big Bear Councilman/former Chino Councilman William Jahn, Treasure Ortiz, Cristina Puraci, Mario Saucedo, David Radtke, Former San Bernardino Mayor Judith Valles, Grand Terrace Councilwoman Sylvia Robles, current field representative to Republican Congressman Paul Cook/former Yucca Valley Councilwoman Dawn Rowe, Redlands Councilman Eddie Tejada, Kristin Washington, former San Bernardino City Councilman Tobin Brinker, Eric Whedbee, Mike Saifee, Jack Roberts, Renea Wickman, Neil Gericke, James G. Glass, Rosa E. Gomez, former Republican Assemblyman/State Senator Bill Emmerson, Heather Reagan, Richard T. Herrick, Jody L. Isenberg, Kenneth W. Lussier, Eugene Melville of Yucaipa and Robert D. Wilson. Of those 48, no fewer than twelve are registered Democrats. Doing a quick winnowing process, the board provided all applicants with a questionnaire, and without revealing the answers provided by any of the individuals to the ten questions, reduced the field to 13 candidates: Leja, Hansberger, Daily, Mann, Davis, Bagley, Rigsby, Flynn, Hackbarth-McIntyre, Jahn, Rowe, Brinker and Emmerson.
The board had performed that winnowing process behind closed doors through each of them casting oral votes for up to ten of the applicants. Those receiving at least two votes were put on the semi-finalists list. The only recordation of votes was made my the clerk of the board, Laura Welch, who affixed a mark next to the name of the voted-for candidate on a list of the applicants, with no indication of which supervisor had cast which vote. In this way, the only known votes of any of the supervisors were for three of the candidates – McIntyre, Jahn and Rigsby – each of whom had received four votes. Both Emmerson and Flynn received three votes.
In making that reduction, the board eliminated all but one of the Democrats who had applied, the exception being Loma Linda Councilman Dailey. The remainder were Republicans, with the exceptions of Brinker, who has declined to state his political affiliation and Emmerson, who likewise identifies himself as nonpartisan. Since resigning as a state senator in 2013, Emmerson has reinvented himself as a lobbyist concentrating primarily on medical issues and accordingly has found it to be in his professional interest to have severed his Republican ties while working with legislators who are predominantly Democrats.
The thirteen semi-finalists were invited to a forum before the board of supervisors meeting in a specially-called session on Tuesday. In the public comment session before the supervisors initiated the presentations from and the questioning of the candidates, Ruth Musser-Lopez, a member of the San Bernardino County Central Committee and an unsuccessful candidate for State Senate in the 16th District spoke. After some initial contretemps with Lovingood over her observation that Carey Davis had failed to gain reelection as mayor in this year’s election, she assailed the fashion in which the selection process was being conducted. “Apparently you guys polled yourselves and voted,” she said. “I want to see those votes. Yesterday you sent in votes for different candidates and you selected 13. You sent in people you would vote for and that’s against the Brown Act, and I want to object to what you did. I also want to see the votes.”
Referring to the “County Wire,” a communique from the county administrative office regarding county governmental developments intended for public consumption, Musser-Lopez said, “The person who sent this wire out said if they didn’t get two votes or more then they don’t get interviewed today. So there’s a bunch of candidates that aren’t going to get interviewed, even if one of you wanted them. You voted. And if two of you voted for them, they get to speak today. That’s illegal. That’s polling the supervisors. I object to that. It appears that this list, since it takes two votes and three of you are Republicans and this is supposed to be nonpartisan, turns out to be partisan.”
Musser-Lopez said, “Chris Carrillo, I understand, [was who] James Ramos recommended. James Ramos was the person that the people wanted and through the voice of the people he actually got elected to a higher position. You would think you would take the peoples’ concern [and] be respectful of them. The people are represented by James Ramos.”
Musser-Lopez’s three minutes had at that point elapsed and Lovingood called for the next speaker, preempting Musser Lopez’s further comments.
After the conclusion of the public speaker portion of the meeting, the board moved into the public interview/presentation phase of the process such that over the course of the remaining hours of the morning and into the afternoon, four hours and 24 minutes were devoted to taking statements from the 13 candidates, who also responded to questions put to them by the board. At the conclusion of that hearing, there was no indication the board in any way intended to heed Musser-Lopez’s claim that the process was in violation of the Ralph M. Brown Act, which is California’s open public meeting law, which requires that virtually all discussion and votes of an elected board be conducted in public, with limited exceptions relating to pending or ongoing litigation, employee discipline or termination, pending real estate transactions or contract negotiations.
After a brief discussion, the four board members, at the five hour and 27 minute point of the meeting, were provided ballots by Laura Welch, the clerk of the board. At the 5 hour and 29 minute point the ballots were collected and then tallied by Welch and one of her assistants. Welch announced that Lovingood had endorsed Sean Flynn, William Jahn, Janice Leja, Rhodes Rigsby and Dawn Rowe; Rutherford had voted for William Emmerson, Flynn, Jahn, Rigsby, and Rowe; Hagman had written down Emmerson, Flynn, Chris Mann, Rigsby and Rowe; and Gonzales had cast her ballots for Jim Bagley, Ron Daily, Julie Hackbarth-McIntyre, William Jahn and Rowe. The top five vote-getters were thus Dawn Rowe with four votes; Rigsby, Flynn and Jahn with three voters and Emmerson with two. They were deemed to be the finalists. The board scheduled another hearing for yesterday morning, Thursday December 13, at which point it was possible a selection was to be made.
In the intervening time, Musser-Lopez, dashed off a letter to the board of supervisors dated December 11 which she designated as a “Complaint of Violation of the Ralph M. Brown Act by the San Bernardino County Board of Supervisors.” In that missive she stated, “On December 10-11, 2018, you the members of the County Board of Supervisors in concert and individually violated the Ralph M. Brown Act specifically CA Gov. Code, § 54953.5 when you did cast preliminary votes secretly, without a process agreed upon by the public and without publicly disclosing the votes of the individual supervisors to the public. The language of the law is very clear: “All votes, except for those cast in permissible closed session, must be cast in public. No secret ballots, whether preliminary or final, are permitted.” Elsewhere in the letter, Musser-Lopez makes clear that she was referencing the board’s vote to designate the 13 semi-finalists.
“The fix was in, the public was left out of the selection process, some applicants were not invited to address the board and were not allowed equal time, and due to the illegal polling, board members knew which applicants were ‘winning’ prior to their vote,” Musser-Lopez wrote. “The consequence of a board member knowing in advance which applicants were preferred by the other members had the potential of wrongfully influencing their vote without public knowledge or intervention. The Act specifically prohibits any use of direct communication, personal intermediaries or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken. (§ 54952.2(b).) On December 10, the public was denied the right to address the board of supervisors prior to votes being cast; they were also denied the right to comment concerning the method or process of eliminating some applicants. The public was not allowed to comment prior to secret ballots being cast by the members of the board to the clerk of the board of supervisors, which voting constitutes an illegal serial meeting. While the public was allowed a short opportunity for comment on December 11, 2018 at a noticed meeting, after a vote was taken reducing the thirteen unlawful candidates to five candidates, the public was notified that a ‘continued’ meeting would be held at which the public would not be able to comment. The Brown Act states that matters properly placed on the agenda for the original meeting may be considered at the subsequent meeting (§ 54954.2(b)(3), however the matter was not properly placed on the agenda for the December 11, 2018 meeting because of 1) the illegal secret ballots eliminating some legitimate applicants, and 2) because the public was never provided an opportunity to support or oppose the legitimate applicants who were eliminated.”
Musser-Lopez demanded that the board of supervisors cure the violation by voiding the December 11 vote and voiding “any other serial votes by members of the board of supervisors on December 10 and 11, 2018 and that to be voted on December 13, 2018 pertaining to the selection of a replacement supervisor for the 3rd District. My further claim for relief is that the board of supervisors provide an opportunity for all applicants to be invited to give a speech and allowed the same amount of time provided the unlawful slate of 13 candidates that were improperly selected by serial voting and secret ballots on December 10, 2018.”
Musser-Lopez followed that letter up with an email to the board through the clerk of the board early Thursday morning.
When the board convened Thursday morning, the meeting lasted a mere 58 seconds, with Lovingood, after gaveling the proceeding to order, asking County Counsel Michelle Blakemore, the county’s top in-house attorney, “to share some information with us.”
Blakemore said, “Yesterday we received correspondence and this morning as well additional email correspondence from the same individual alleging a Brown Act Violation, so we are considering that and our recommendation is that the board take absolutely no action today and that the meeting be adjourned and we will bring an item back on Tuesday for consideration.”
“With that understanding and wanting complete transparency, we’re going to go ahead and adjourn the meeting now,” Lovingood said, gaveling the meeting to a close.
Musser-Lopez, who has written history columns for the Sentinel, is a member of a splinter group within the San Bernardino County Democratic Central Committee which refers to itself as the SBCDCC Strategy Team. That team exists as a smaller subset of roughly 35 percent of the San Bernardino County Democratic Central Committee’s members who are displeased with the performance of the Democratic Party in San Bernardino County over the last several election cycles while the central committee has been led by its chairman since 2012, Chris Robles. The team’s members believe that Robles has been far less energetic than he could have been in coordinating electioneering efforts for the county party, given that voter registration numbers in San Bernardino County reflect a substantial if not overwhelming advantage to the Democrats among the county’s current 954,758 voters, as 371,001 of those or 38.9 percent are affiliated with the Democratic Party and 278,380 or 29.2 percent are registered as Republicans. Working outside the official auspices of the San Bernardino County Democratic Central Committee but with the support of Democrats affiliated with the party’s state apparatus, the strategy team is seeking to break the hold the Republican Party has on the county’s governmental structure and to intensify pro-Democratic efforts in races for state and federal office. In San Bernardino’s Fifth, Fourth and Second districts, registered Democrats outnumber registered Republicans by more 30 percent, 15 percent and 7 percent, respectively; in the Third and First districts, the Republicans hold a registration advantage of under 1 percent.
The strategy team is aiming at overturning the county’s current effort to have the Republican-dominated board of supervisors fill the vacant Third District board position. Musser-Lopez said the board’s Brown Act violation emerged as a means by which to challenge the validity of the selection process. She said the team is exploring the possibility of augmenting that challenge with further action that will call into question, on technical grounds, the eligibility of two of the finalists to hold the Third District position. Musser-Lopez reiterated her belief the process engaged in by the supervisors has invalidated any selection they might make. The resolution of those challenges would most likely not occur until after January 2, at which point the board’s authority to make the appointment would lapse and the designation of the individual to hold office on the San Bernardino County Board of Supervisors representing the Third District would become the purview of the state’s Democratic governor.
“The unlawful ‘elimination process’ beginning with a prohibited serial meeting and secret ballot vote on December 10 was designed to winnow down the field of candidates to an obvious outcome,” Musser-Lopez told the Sentinel. “The Republicans on the board would have knowledge as to how to vote to achieve a desired preplanned vote in unison by three members. This was not a merit-based selection process based upon qualifications, skills, and knowledge or who the people of the Third District wanted representing them. This is purely politics: how to keep the appointment from being decided by the Democratic governor. Along the way, the board of supervisors violated the rights of the people: to redress their government and speech rights. Applicants of color were not provided the same right or opportunity to make their case as the white country club Republicans. Further, it appears that the three Republican board members will make no effort to cure the situation by offering to interview or give equal time and treatment to those applicants they earlier shunned. The board of supervisors has on their agenda for December 18 a plan to quote-unquote ‘rescind’ their unlawful acts as if just their say-so ‘cures and corrects’ the situation. You can’t rescind an act that has already been done. The list has already been made. They can rescind a prohibited process but they can’t rescind the act of engaging in a prohibited process. I don’t think they can get out of it. A stay on a selection while the constitutional rights violation issue is being decided could hold this selection process up indefinitely…at last beyond 30 days. It will be interesting to watch what the First Amendment Coalition decides to do with this case. There is a criminal element to this too that could potentially be taken up by the district attorney or perhaps the attorney general.”
Mark Gutglueck

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