County Wants Supreme Court To Quash Rowe’s Removal From Board

Having bet on, doubled down and tripled down on their colleague Dawn Rowe, the four other members of the San Bernardino County Board of Supervisors this week elected to quadruple down on her, gambling once more that her political career will survive.
A day after California’s Fourth District Court of Appeal reversed its November decision to stay San Bernardino County Superior Court Judge Janet Frangie’s September order that Rowe’s appointment as Third District San Bernardino County supervisor be rescinded, the board gave indication it will defy Frangie’s reestablished ruling long enough for the office of county counsel to prepare a request to the California Supreme Court that Rowe remain in office while a determination of Rowe’s disputed status in the elected office she was appointed to in December 2018 is more fully hashed out.
Even before Rowe was appointed to the Third District supervisor’s post, members of the public were asserting the dice were being loaded in her favor and there was controversy over the appointment process that eventually put her into office.
The circumstance that led to Rowe’s appointment grew out of her predecessor as Third District supervisor, James Ramos, having successfully vied for state legislative office. In 2012, Ramos was elected to the Third District supervisorial post and reelected in 2016. In 2018, he successfully vied for state Assembly in California’s 40th District. A Democrat, Ramos during the less than a month between his election and his departure for Sacramento suggested to his board colleagues that they appoint his assistant chief of staff, Chris Carrillo, to serve as supervisor during the final two years of the term he had been elected to in 2016.
Despite growing numbers of registered Democrats throughout its 20,105 square mile expanse, 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 at the polls. At the time of the 2018 election, two of the members of the board of supervisors – Ramos and Fifth District Supervisor Josie Gonzales – were Democrats. The other three board members – Robert Lovingood, Janice Rutherford and Curt Hagman – were Republicans. Thus, three of the four members of the board following Ramos’s departure were less than enthusiastic about complying with Ramos’s stated preference that he be replaced with Carrillo, also a Democrat. Supervisors Lovingood and Rutherford, in particular, were before Ramos’s departure leaning in favor of replacing Ramos with Dawn Rowe, who was previously a councilwoman in the Town of Yucca Valley and was at that time a field representative in the office of Republican Congressman Paul Cook.
The board had relatively wide discretion in determining a replacement for Ramos. Basically, the limitations on it were that its members had to choose someone who was of the age of majority, was registered to vote and resided within the Third District, which encompasses Grand Terrace, the eastern portion of San Bernardino, Highland, Redlands, Mentone, Big Bear and its surrounding eastern San Bernardino Mountains communities, Yuciapa, Yucca Valley, Morongo Valley, Joshua Tree, Johnson Valley, Twentynine Palms and Barstow. One other limitation was that the board would need to make that appointment within thirty days of Ramos’s resignation as supervisor on December 3, 2018, the same day he was sworn into office as an Assemblyman, or the power of appointment would pass to the governor. Rather than simply designate on their own a replacement, the board’s members invited applicants for the office. In response to the invitation, 53 individuals took out nomination papers, not all of which were returned. The board considered the candidacies of what were deemed to be 48 qualified applicants, among whom at least 18 were Democrats. The board on December 10, based on the information in the applications and staff research, winnowed the field to 13, eliminating from the running in one swoop 35 of the applicants, including Carrillo.
Those remaining under consideration were 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, which is California’s open public meeting law.
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. That same day, Michael Gomez Daly, acting as the executive director of the Democratic Party-affiliated political advocacy group I.E. United, 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 carried on with the process over Daly’s objection.
At the prompting of the only Democrat on the board, Josie Gonzales, the board also consented to hearing from Carrillo, whom they had overlooked previously and who 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 become 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.
After Rowe’s appointment, both Musser-Lopez and Daly, in his capacity as the executive director of 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, had engaged in a secretive voting process including serial meetings in the bypassing of 35 of the candidates, and had conducted what was supposed to be an inherently public process behind closed doors.
Ultimately, the lawsuits were 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 in September 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 declined to take the matter up.
The Fourth District Court of Appeal in November, in response to requests that Rowe be barred from acting as supervisor while the appeal process is ongoing, granted what in legal terms is called a “writ of supersedeas,” which imposed a stay on Judge Frangie’s finding that Rowe’s appointment was null and void as well as the resultant order that she be removed from office.
On Wednesday, January 8, the appellate court reversed its November decision that was permitting Rowe to continue in the role of supervisor. In its reversal, the Fourth District Court of Appeal’s Presiding Judge, Justice Douglas Miller, wrote, “To support issuance of the writ of supersedeas, appellant must show that ‘substantial questions’ will be raised on the appeal and must explain the underlying case in a manner that ‘facially demonstrates the merit of these issues. Appellants have not facially demonstrated the merits of the issues they present for the purpose of a discretionary writ of supersedeas.”
The Sentinel learned today that the county is purposed to file a petition with the California Supreme Court next week that it direct the Fourth District Court of Appeal to issue the writ of supersedias.
The issue of Rowe remaining in office at present is heavily fraught with political implication.
Rowe is locked in an election campaign against four other candidates –  Kaisar Ahmed,  Karen Ickes, Latron Lester and Eddie Tejeda – all of whom are Democrats. The San Bernardino County Registrar of Voters has given Rowe a ballot designation of “San Bernardino County Supervisor.” Conventional wisdom holds and electoral statistics show that a politician’s status as an incumbent is an advantage at the polls. Mail-in ballots and sample ballots are to go out on January 18. If the Supreme Court does not grant the county’s petition, and as of the March 3 election date Rowe is not supervisor, the election will have been conducted on false pretenses.
Rowe remaining in office holds the possibility of impacting more than just her electoral prospects. Upon assuming office, Rowe hired as her staff members three individuals – Suzette Swallow, Dillon Lesovsky and Matt Knox – who had been heavily involved in electioneering efforts for Republican candidates in the past. Word spread that Knox, as Rowe’s chief of staff, Lesovsky, as Rowe’s policy advisor, and Swallow, as Rowe’s communications director, were actually in place to ensure her election in 2020, as well as to work on behalf of other Republican candidates in the same election cycle, including Congressman Paul Cook, who is running for supervisor in the county’s First District, and 33rd District Assemblyman Jay Obernolte, who is running to replace Cook as Congressman in the 8th Congressional District. The status that Swallow, Lesovsky and Knox have as employees of Rowe’s office provides them with agency-to-agency privilege. Agency-to-agency privilege includes the free exchange of information between various levels of government, federal, state and local, often including information gleaned from law enforcement data bases. Such information can be useful for political operatives such as Swallow, Lesovsky and Knox in their political campaign work. While the sharing and use of such information for partisan political purposes is illegal, as is the use of government facilities and equipment, enforcement of those restrictions are difficult and highly unlikely given the power, autonomy and authority holders of elected office possess.
It is being bruited about the county that Swallow, Lesovsky and Knox have already made use of agency-to-agency privilege to benefit their employer. In early 2019 it was widely assumed, and indeed Carrillo indicated, that he would challenge Rowe in this year’s election. In June, however, Carrillo reversed course, announcing he would not run for supervisor. Rowe has courted the impression that the Swallow/Lesovsky/Knox political operations team functioning out of the Third District supervisorial office was able to utilize information at its disposal obtained through government channels to blackmail Carrillo, an attorney and board member of the East Valley Water District whose wife works as a prosecutor in the San Bernardino County District Attorney’s Office, thereby persuading him to drop out of the Third District race.
-Mark Gutglueck


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