Reaching a conclusion that the four-fifths strength San Bernardino County Board of Supervisors late last year violated California’s open public meeting law, the Brown Act, Superior Court Judge Janet M. Frangie this week voided the now nine month-old appointment of Dawn Rowe as Third District county supervisor.
Judge Frangie’s ruling, which included an order that Rowe forthwith be removed as supervisor and that responsibility for the appointment be taken up at once by the governor, threw San Bernardino County’s governmental and political establishment into a temporary tizzy. The following day, Thursday, September 19, the county appealed Frangie’s ruling to the Fourth District Court of Appeal in Riverside, buying what most top county officials hope will be a six month-or-more-long delay during which Rowe will remain in office, at which point the 2020 California Primary in which she is vying for election will take place, allowing her to run as an incumbent rather than a candidate who has been bounced from office as the result of a legal challenge.
San Bernardino County remains as one of the last bastions of the Republican Party in California, where elected officeholders aligned with the GOP yet outnumber Democrats in office, a function of significantly higher Republican voter turnout despite increasingly lopsided voter registration numbers favoring the Democrats countywide. Rowe, a Republican, was selected to replace James Ramos, a Democrat and the elected incumbent Third District supervisor, after Ramos resigned from the position to accede to the California Assembly after he successfully vied for that position in the 40th Assembly District in the November 2018 election. Supervisors Robert Lovingood and Janice Rutherford, both of whom are Republicans, advocated heavily for Rowe’s appointment.
The the board on December 10 winnowed the field of 48 qualified applicants to 13, consisting of former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Yucca Valley Councilwoman Dawn Rowe, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby. Twelve of those 13 were Republicans, with Dailey being the only Democrat.
At a specially-called meeting on December 11, all of them were interviewed publicly. During the public comment portion of the meeting which preceded the interviews, Ruth Musser-Lopez protested the secret polling among the supervisors that had taken place the previous day and had reduced the 48 applicants to the 13 candidates being considered. She characterized that as a violation of the Brown Act. After the interviews that ensued, the board reduced the field to five Republicans: Emmerson, Flynn, Jahn, Rigsby and Rowe. Those five were invited back for second interviews on December 13.
Musser-Lopez on the evening of December 11, fired off a letter to the board and County Counsel Michelle Blakemore through the clerk of the board, reiterating her objections in writing, and labeling it a “complaint.” In the letter, she asserted, “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.” She said that “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 said this led to the board members “knowing in advance which applicants were preferred by the other members” and “wrongfully influencing their vote without public knowledge or intervention,” such that “a majority of the board” had been able to illegally “develop a collective concurrence as to action to be taken” and had furthermore engaged in private communications with one another through the use of secret ballots that were tantamount to a “serial meeting,” which is also outlawed by the Brown Act.
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.”
When the board convened the morning of December 13, the proceedings lasted a mere 58 seconds and were gaveled to a close by Board Chairman Lovingood, after County Counsel Michelle Blakemore, the county’s top in-house attorney, referenced the Brown Act violation accusations and said, “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.”
On December 18, the board reconvened to take up the appointment of Ramos’s replacement, picking up where it had previously left off, and conducted second interviews with Emmerson, Flynn, Jahn, Rigsby and Rowe. At the prompting of the only Democrat on the board, Josie Gonzales, the board also consented to hearing from Chris Carrillo, a Democrat, a lawyer and Ramos’s assistant chief of staff in District 3 who had been overlooked previously by the board and had not been among the 13 originally interviewed. The process, which was heavily stacked in favor of Rowe from the outset, concluded after the interviews with the six were completed. Lovingood immediately nominated Rowe. With Curt Hagman, the other Republican on the board, now openly leaning in favor of Rowe as well, an axis in Rowe’s favor that was unbreakable had was apparent. Reading the writing on the wall, and realizing that Rowe’s selection was unstoppable and that she would need to work with her future colleague going forward, Gonzales joined with the remainder of the panel to make Rowe’s appointment unanimous.
Two individuals, both Democrats, objected to the fashion in which the appointment had been made. Ruth Musser Lopez on her own sent the county a letter of protest on December 10 taking issue with the secretive nature of the process and the bypassing of 35 of the candidates. Michael Gomez Daly, acting as the executive director of the Democratic Party affiliated political advocacy group I.E. United, likewise registered an objection to the process. After Rowe’s selection, Musser-Lopez, representing herself, and Daly in concert with I.E. United, filed separate lawsuits, claiming the board had not corrected the violations of the Brown Act, before proceeding with its selection of Rowe.
The suits alleged that supervisors through a series of actions including serial meetings and a secret tallying of the votes they made with regard to reducing the field from 48 to 13, conducted what was supposed to be an inherently public process behind closed doors. Early in the process, the board had agreed among themselves to designate the five candidates they each thought would best fill the Third District vacancy. Any candidate who received two endorsements or more was chosen to be interviewed. That was how the 13 candidates who were interviewed – Rowe, former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby – were selected. In December, when the board was asked who had voted for the 13 candidates, county officials responded to say that then-Clerk of the Board Laura Welch, armed with a list of all of the appointment candidates, simply made a mark beside the name of a candidate when one of the supervisors cast his or her vote in favor of him or her, and that she did so without recording which supervisor was casting each vote.
On December 18 Daly sent the board of supervisors a letter requesting that the board rescind its previous action and reinitiate the process by interviewing all of the candidates. The board, though it voted to withdraw the two lists it had created, the list of 13 candidates arrived at on December 10 and the list of five candidates it had reduced the field to following the December 11 interviews, the board members voted for three candidates each, which resulted in the same list of five candidates. After those interviews, the board acceded to Lovingood’s motion to choose Rowe, resulting in the unanimous vote to appoint her.
One of the issues driving the board was that the county charter and state law involve requirements that the board to fill a vacancy within 30 days based upon whatever selection process it deems fit or otherwise surrender to the California governor the power to make the appointment.
James Ramos had resigned as supervisor on December 3 upon being sworn into his position in the Assembly. In December, Jerry Brown, a Democrat, was governor. Gavin Newsome, a Democrat as well, was sworn in to succeed Brown on January 7. The concern of the Republican-dominated board was that if a decision was not made by it prior to January 2, the decision would fall to either Brown or Newsome, who would most likely appoint a Democrat.
Musser-Lopez’s suit named Lovingood, Rutherford and Hagman as respondents and Rowe as a real party-in-interest. Daly’s lawsuit named Lovingood, Rutherford, Hagman and Gonzales as respondents, with Rowe as a real party-in-interest. Initially, the lawsuits were dealt with separately, with Musser-Lopez’s sent for hearing by Judge David Cohn and Daly’s routed to the courtroom of Judge Frangie. Both were eventually set for trial before Frangie, who subsequently ruled in favor of the county to dismiss Musser-Lopez’s suit for not being timely filed.
After multiple briefings and arguments, Judge Frangie delivered her findings and opinion. She noted that not all violations of the Brown Act render action taken by a governmental panel as null and void, and that for action taken by a public governing board to be rescinded, the violation of the open public meeting law must be egregious, relate to actions violating the six specific sections of the Brown Act which enumerate serious matters and that the plaintiffs can clearly demonstrate that the public suffered actual harm or prejudice as a result of the Brown Act violation. Judge Frangie noted that the arguments the county made against declaring the appointment of Rowe to be null in void were based on case law which predated the California Legislature’s passage of a law in 1986 that enacted Government Code § 54960.1, which reinforced the Brown Act to allow for declaring an action taken in violation of the Brown Act to be null and void if the body that engaged in the Brown Act violation does not avail itself of the opportunity to “cure and correct” the violation.
Specifically, according to Judge Frangie, the board’s action was hidden from public view and deprived the public from participating in what should have inherently been a public selection process. “These lists were submitted by the board members through a series of individual emails, which were then collected and tallied by the clerk for the purpose of obtaining a collective agreement by the board members to interview only a limited number of the 48-person applicant pool,” Judge Frangie wrote.
In her decision, Judge Frangie noted that both Musser-Lopez and Daly invited the board of supervisors to cure and correct its violation by voiding its previous action and reinitiating the selection process in compliance with the Brown Act but had failed to do so.
“[T]he court finds there is prejudice to the extent that the actions of the board deprived petitioners and the members of the community their right to monitor and provide input on the board’s collective acquisition and exchange of facts,” according to Judge Frangie. “The policy underlying the Brown Act is that public boards and agencies exist to aid in the conduct of the people’s business [and] the law is intended to mandate open and public actions and deliberations. The public trust is undermined by private deliberations and meetings not accessible to the public. As the Supreme Court stated in Roberts v City of Palmdale, the intent of the Brown Act cannot be avoided by subterfuge – a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next would violate the open meeting requirement. In this age of technology texts, messages and emails are easily substituted for letters and telephone calls. The public was further deprived of the information shared behind closed doors by the [board]members and of the content of their communications about the candidates as well as how they each voted. The public was further deprived of the opportunity to hear from all eligible candidates and to lobby for their preferred candidate before the board. These are the very things that the Brown Act was meant to address. Sections of the Brown Act were violated.”
In her conclusion, Judge Frangie wrote, “The court rules as follows:
1) The process by which Dawn Rowe was selected to the San Bernardino County Board of Supervisors violated the Ralph M Brown Act.
2) Respondents failed to cure and correct their violations of the Brown Act.
3) The appointment of Dawn Rowe as Third District Supervisor is null and void. Respondents and each of them shall rescind the appointment of Dawn Rowe as Third District supervisor. Pursuant to [the] board’s charter, the appointment of the Third District supervisor shall be made by the governor.”
Reflexively, the county the following day lodged an appeal of the ruling.
What was originally described as a “mad panic” on the part of several top county officials abated shortly thereafter, when it was realized that the appeal would stay Frangie’s ruling, allowing Rowe to remain in office at least until the appellate court declines to take the matter up or until the appeal is heard.
One well placed source, who formerly held multiple positions in county government, including ones in the treasurer’s and assessor’s offices, told the Sentinel, “Everyone was traumatized by it when it first happened but when you analyze it, it doesn’t mean much, and everyone has calmed down. This was a ruling by a liberal Democratic judge, which is very likely to be overturned. Even if it is upheld, that won’t be for another six months or longer. The election is in March, by which point Dawn will have been reelected.”
The county’s official spokesman, David Wert said the board complied with the Brown Act in an appointment process that was, he insisted, “legal, proper and fully transparent,” during which any of those who applied for the position were given the opportunity to do so.
Today, the Board of Supervisors held a specially called closed session meeting, held at 1 p.m. in the Magda Lawson Conference Room on the fifth floor of the county administration building to discuss the matter. There was no indication of what the substance of the discussion was, as the appeal of the Judge Frangie’s ruling had already been filed the previous day.
Despite the board conducting its discussion out of the earshot of the public, it did break in the midst of the hearing to take public comment. Among those present was Musser-Lopez, who used the three minutes allotted her to chastise the board for its violation of the Brown Act in December and its legal effort now to overturn Frangie’s findings and rulings after it lost in court. She told the board that after violating the Brown Act and being caught, it should accept the defeat it suffered in Judge Frangie’s courtroom and simply accept the appointment Governor Gavin Newsome will make of someone to serve out the remainder of Supervisor Ramos’s term. She said the board was being profligate with taxpayer money in making the appeal.
“Look at the money you spent,” she said. “Now you are going to spend more on this appeal. You are going to get a good supervisor when Governor Newsome makes the appointment. You don’t care about anybody but yourselves and keeping your own reputations clear at our expense.”
-Mark Gutglueck