Board Hit With Civil and Criminal Law Challenges Over Rowe Selection

San Bernardino County and its board of supervisors had barely rung in the new year when they found themselves inundated with legal challenges, both civil and criminal, to the elevation of Dawn Rowe late last year to the position of Third District supervisor.
Rowe was chosen by the board on December 18 to succeed James Ramos in his position on the board after Ramos was elected to the California Assembly in the 40th District on November 6, 2018. Ramos was originally elected to serve as the supervisor for the county’s Third District – which encompasses 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 – in 2012. He was reelected to a four-year term in 2016. Thus, his resignation to move into the state legislature on December 3 created a vacancy on the five-member panel at the political pinnacle of governance in 20,105-square mile San Bernardino County, as the next regularly scheduled election in the district is not due to take place until 2020.
Under the county’s charter, a vacancy on the board of supervisors is to be filled by the board within 30 days of a position thereon becoming vacant, or discretion on the appointment is to pass to the governor. The charter does not provide a provision for an election to be held. Nor does the charter give guidance with what methodology the board is to use in arriving at its determination of who is to fill such a vacancy.
Left to its own devices, the board undertook to solicit interested candidates for the position, limiting the pool to individuals qualified to seek election as Third District supervisor, i.e., residents of the age of majority living within the confines of the district who are registered voters at a domicile in the district. While that element of the recruitment to fill the post, consistent with past practice in filling such vacancies both inside and outside the county, was legal, it was the manner in which the board thereafter reduced the 48 who applied for the appointment to first thirteen, thereafter to five and ultimately to Rowe that has provoked charges the board and top county officials violated standard protocols and the State of California’s open public meeting law.
If either or both of the challenges succeed in forcing the appointment to be rescinded, there is a considerable likelihood that the board will not be afforded the opportunity to carry out a do-over, as the 30-day deadline to make the deadline specified in the county charter has now elapsed, such that the appointment discretion would transfer to Gavin Newsom, who will then be governor.
By prior arrangement, Ramos tendered a resignation that was to become effective simultaneous with his swearing in as assemblyman on December 3. Prior to departing, Ramos had let it be known that his preference was that the board appoint his deputy chief of staff, Chris Carrillo, to take his place for the last two years of the second term on the board to which he had been elected. The board, however, did not honor his wish. After 48 district residents took out applications, 43 of which were filled out in their entirety and returned, the supervisors in private agreed to each select ten of the applicants for submission to the clerk of the board as a form of preliminary balloting. Those who wound up on the selection list of at least two of the supervisors were then considered for a second look. Carrillo did not survive that round. Those who did were former San Bernardino County Third District Supervisor Dennis Hansberger, San Bernardino County Republican Central Committee Chairwoman Janice Leja, Loma Linda City Councilman Ronald Dailey, Former San Bernardino County Fifth District Chief of Staff and Inland Empire Taxpayers Association Founder Chris Mann, outgoing San Bernardino Mayor Carey Davis, former Twentynine Palms Mayor Jim Bagley, Loma Linda Mayor Rhodes Rigsby, two-time Congressional candidate Sean Flynn, Barstow Mayor Julie Hackbarth-McIntyre; current Big Bear Councilman/former Chino Councilman William Jahn, then-field representative to Republican Congressman Paul Cook/former Yucca Valley Councilwoman Dawn Rowe, former San Bernardino City Councilman Tobin Brinker and former Republican Assemblyman/State Senator Bill Emmerson. Those thirteen were invited to public interviews in the Robert Covington Chambers at the county’s main administrative building at 325 North Arrowhead Avenue in downtown San Bernardino on December 11. All 13 showed up that day, but before the actual interviews began, Ruth Musser-Lopez, who had vied unsuccessfully for State Senate in the 16th District this year, that morning registered her objection to the fashion in which the selection was being carried out. Musser-Lopez alleged that the supervisors’ closed-door selection of their ten top choices among the applicants in an effort to arrive at a list of semi-finalists was tantamount to a vote or polling of the board members in private. This, she said, was a violation of the Ralph M. Brown Act, California’s open public meeting law, which prohibits a quorum of elected officials from discussing, forming a consensus or voting on any issue of business involving the public entity they represent in anything other than a public forum which has been previously advertised to the public and for which an agenda outlining that action has been posted.
The board essentially ignored Musser-Lopez, and that morning and into the afternoon conducted interviews of the 13 candidates. Just before the conclusion of the proceedings late in the afternoon, the board then conducted another poll in which each supervisor listed five of his or her top choices. Again, the threshold for moving to what was intended as the final round was selection by at least two of the supervisors. Five of the thirteen – Rowe, Rigsby, Jahn, Flynn and Emmerson – were granted entrée into the field of finalists, and invited to return two days later, on December 13, to another specially-called meeting of the board to undergo further scrutiny, after which a final selection was to be contemplated.
During that two-day gap, however, Musser-Lopez put the objections she had raised on December 11 in writing, together with specific citations of the language in the Brown Act and California’s Government Code. When the board reconvened on December 13, the board deferred action based upon the advice of the county’s top ranking in-house attorney, County Counsel Michelle Blakemore, in reaction to Musser-Lopez’s letter.
At its regular December 18 meeting, the board rescinded its previous actions, in so doing tacitly but not officially acknowledging there was a legal basis to Musser-Lopez’s Brown Act violation allegations. It thereafter devoted much of its afternoon session to revisiting making a selection to fill the Third District void. Lovingood offered a defense of what the county and the board had done and an explanation of what they were purposed to do. He said the board of supervisors “took great lengths to ensure an open process.”
Supervisor Gonzales indicated she “wanted to go in a different direction” from what had occurred, which included, she said, “to have interviews with each and every candidate.” She realized, however, Gonzales said, her board colleagues were intent on moving forward with the nominations of just two or three names each, and she had resigned herself to that.
Asserting “moving forward today is our responsibility” and that he had like the other members of the board thoroughly considered the merits of the candidates based on their submissions while resisting being lobbied, Lovingood then nominated Rowe. He obtained the second of Second District Supervisor Janice Rutherford, but Gonzales and Supervisor Curt Hagman balked at supporting Rowe at that point.
Of note, Rowe, Rigsby, Jahn, Flynn and Emmerson were on hand to make further presentations and answer the questions of the board that had not taken place on the previous Thursday, December 13, when that convocation had been abbreviated. Prior to them being given the opportunity to again address the board, at the request of Supervisor Josie Gonzales, Chris Carrillo was allowed to make a presentation with regard to his qualifications.
Rowe was the last of the six candidates interviewed on December 18. Immediately after her exchange with the board, without entering into any discussion with regard to the relative merits of the applicants, Lovingood again made a motion to appoint her to the Third District supervisorial post. Again, Rutherford seconded the motion. When Hagman immediately voted in favor of the motion, the outcome was obvious and Gonzales voted to make Rowe’s appointment unanimous. Before leaving that day, Rowe made a cell phone call to tender her resignation as an employee with Congressman Cook’s office and was sworn in as supervisor by Clerk of the Board Laura Welch on the spot.
This week, on January 2, the political advocacy group Inland Empire United announced it had initiated a legal action in the form of a writ of mandate in San Bernardino County Superior Court, seeking to vacate Rowe’s appointment and alleging the board of supervisor had violated state law in making Rowe’s appointment. Inland Empire United, represented by Stacey Leyton and Megan Wachspress of the San Francisco-based law firm of Altshuler Berzon as well as Glenn Rothner and Juhyung Lee of the Pasadena-based law firm of Rothner, Segall & Greenstone, raised issues virtually indistinguishable from those cited by Musser-Lopez. The salient issues in the civil action are the Brown Act was violated when the board met in private and voted through a “secret ballot” when they winnowed the field of 48 applicants to 13 and granted only those selected in that process interviews.
Like Musser-Lopez, Inland Empire United went on record as questioning the legality of the protocol being used in the selection before the board voted to elevate Rowe. Its executive director, Michael Gomez Daly, sent the supervisors a letter dated December 18 calling upon them to cure the violation by interviewing all the applicants.
The writ of mandate requests of the court that it “issue a judicial determination that respondents’ conduct of a secret ballot, via seriatim electronic mail communications, to select 13 ‘nominees’ for the position of Third District supervisor, violated Government Code §§54952.2 and 54953, and that the selection of these ‘nominees’ was null and void under Government Code §54960.1.”
Today, January 4, Musser-Lopez compounded the legal challenge to the board and the county, not in a civil context but rather in a criminal one. In a letter delivered directly to the San Bernardino County District Attorney’s Office as well as in an electronic filing with the California Attorney General’s Office, Musser-Lopez asked prosecutors to scrutinize the board’s action for its criminal element. Referencing Government Code § 54959 and Government Code §54952, Musser-Lopez wrote in her letter to the district attorney’s office that the board had engaged in a “criminal violation of the Brown Act. The Brown Act punishes attendance by a member of an elected local government body of a meeting where action is taken in violation of the Act, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled.”
Musser-Lopez alleges that Lovingood, Rutherford and Hagman knowingly and willingly violated the law when they “modified the selection process for the vacant 3rd District board of supervisors’ seat” and held a secret meeting on December 10, 2018 in which “unlawful secret ballots were lodged.” Her letter states, “No publicly noticed document identifies either the total number of votes received by each candidate and no publicly available document identifies the names of the candidates selected by each supervisor. Members cannot plead ignorance with regard to the law that requires that all of their votes be taken in public. Their intent was to deprive the public of information as to how they voted and to narrow the field of candidates outside of the public’s view. Their further intent was to not bring attention to the fact that eligible candidates were not being considered.”
In her complaint, Musser-Lopez omitted Supervisor Josie Gonzales. Her letter states that Gonzales “is not a named respondent because she objected to the process under which the complained of violations took place.”
While a violation of the Brown Act can be considered a misdemeanor, punishable by a jail sentence of up to six months, such penalties are extremely rare, being reserved for repeat flagrant violators of the Act. Normally, transgressors are admonished to discontinue such violations and may be fined. A finding of violation, however, often results in any action or vote taken pursuant to the violation being rescinded.
The civil and criminal complaints have partisan political significance. Musser-Lopez and Daly are both Democrats heavily engaged in party activism. A plurality of San Bernardino County voters are registered Democrats, such that of the county’s current 956,376 voters, 371,906 or 38.9 percent are registered Democrats, 277,828 or 29.1 percent are registered Republicans, 251,242 or 26.3 percent have no party affiliation and the remaining 5.7 percent are affiliated with the Green, American Independent, Peace and Freedom or other more obscure parties. Despite the Democrats’ numerical advantage in San Bernardino County, they have been consistently outhustled locally at the ballot boxes by their Republican counterparts. James Ramos was a Democrat. When he was on the board, the Republicans held a 3-to-2 advantage over the Democrats, as Lovingood, Rutherford and Hagman are Republicans and Gonzales is a Democrat. In narrowing the field of 48 applicants to 13, the board eliminated all but one Democrat, Ron Dailey. Ten of the 13 semi-finalists were Republicans. Two others, Brinker and Emmerson, currently have no party affiliation, though throughout his adult life and during his tenure in the California State Legislature, Emmerson was a Republican. He is now working as a lobbyist and has thus discontinued his Republican affiliation because of the disadvantage that represents to him in working in predominantly Democratic Sacramento. Rowe’s presence on the board, which is supposed to be a non-partisan entity, now gives the Republicans a 4-to-1 advantage on the panel. If Rowe’s appointment is rescinded and the appointment goes to Governor Newsom, who is a Democrat, there is a likelihood that a Democrat rather than a Republican will be installed into the Third District supervisorial position.
The county maintains no violations of the law occurred in the process to name Ramos’s successor and that the county charter gives the board wide latitude in how it is to fill a gap within its ranks.
-Mark Gutglueck

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