California Supreme Court Suspends Rowe’s Removal As Her Appeal Proceeds

The California Supreme Court has responded positively to a petition the San Bernardino County Office of County Counsel filed on January 17, asking that Third District Supervisor Dawn Rowe be allowed to remain in office while the Fourth District Court of Appeals makes a determination about the soundness of a San Benrnardino Superior Court Judge’s order that her current tenure in office be annulled.
Rowe is now involved in an election campaign to remain in the Third District supervisorial position to which she was appointed in December 2018, and from which she oversees that portion of the county encompassing Barstow, Johnson Valley, Twentynine Palms, Joshua Tree, Morongo Valley, Yucca Valley, Yuciapa, Big Bear and its surrounding eastern San Bernardino Mountains communities, Mentone, Oak Glen, Redlands, Loma Linda, Highland, east San Bernardino and  Grand Terrace. She is the odds-on favorite to win that race in which she is competing  against Kaisar Ahmed, Karen Ickes, Latron Lester and Eddie Tejeda. Available campaign finance documentation shows Rowe enjoys a sizable fundraising advantage over all of her opponents, with more than 33 times as much money to spend on her campaign than all of the others combined. As of earlier this month, she had $190,492.69 in her electioneering fund.  As of last week, Ickes had $1,000 at her disposal for her supervisorial run. Ahmed’s campaign filings two weeks ago gave no indication of how much money his campaign has on hand. Similarly, Lester’s filings show no money in his campaign account. Tejada, who is a city council member in Redlands, as of December 31, had $4,750 in his political war chest.
For most political observers it is a foregone conclusion that Rowe will be elected to serve as Third District supervisor this year in the term running from 2020 until 2024, with the only question being whether she will win outright during the presidential primary balloting on March 3 with a majority of the votes or whether she will need to head into a November run-off against whoever captures second place if she can’t accumulate 50 percent of the vote five-and-a-half weeks from now. Still, there remains a strong question as to whether she can legally hold claim to the Third District supervisor’s post at present. Her claim to that spot has been under challenge, since literally before her appointment.
The last undisputed holder of the Third District supervisor’s mantle was James Ramos, who was elected to the post in 2012 and then reelected to it in 2016. In 2018 Ramos successfully vied for the California Assembly in the 40th District. In seeking someone to serve out the two years remaining on Ramos’s term, the board of supervisors settled on Rowe. In so doing, it used a selection process that invited residents of the Third District who were registered to vote to apply, which attracted 48 qualified applicants. Without explaining or disclosing its criteria in doing so, the board then eliminated in one swoop 35 of the applicants, reducing the field to 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. That heightened the alarm level of several Democratic Party activists, who were already on alert to whatever powerplays the board – at that point dominated by Republicans Curt Hagman, Robert Lovingood and Janice Rutherford – were ready to pull off. After interviewing the 13 candidates they had initially selected, the supervisors then in private reduced the field to to five Republicans: Emmerson, Flynn, Jahn, Rigsby and Rowe. This was done without disclosing how the board had arrived at those five selections. This threw two Democratic party operatives, Ruth Musser-Lopez and Michael Gomez Daly into political DEFCON 1.
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.”
The letter panicked the board of supervisors into canceling the interviews of Emmerson, Flynn, Jahn, Rigsby and Rowe scheduled for the morning of December 13, 2018. The board did, however, reconvene on December 18, 2018, at which time it picked 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 Chris Carrillo, Ramos’s one-time deputy chief of staff who had applied for the post and whom the board 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.
Bowing to the inevitable, 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 elevation, both Musser-Lopez and Daly, in his capacity as the executive director of I.E. United, an entity affiliated with the Democratic Party, 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 Janet Frangie, herself a Democrat. Both suits 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.
Daly’s suit, however, remained alive and after months of legal wrangling between the county’s office of county counsel and Daly’s lawyers, Frangie ruled in favor of Daly, concluding, “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.”
Governor Gavin Newsom is a Democrat.
The county appealed Judge Frangie’s ruling to 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, the Fourth District Court of Appeal 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.
The county then filed a petition with the Supreme Court on January 17, seeking clearance for Rowe to continue in the capacity of appointed supervisor while the appeal moves forward. Yesterday, Thursday, January 23, the California Supreme Court issued a directive that Judge Frangie’s order be placed on hold.
Thus, it appears that Rowe will yet hold, tenuously, the position of Third District supervisor when the March 3 election is held. This is of some consequence because the ballot describes her as the incumbent. If Judge Frangie’s ruling yet applied, Rowe’s political opponents would be able to assert, if she indeed prevails in March, that she was elected under false pretenses.
Rowe remaining in office holds further political significance. Upon assuming office, Rowe over the last week of 2018 and into January 2019 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.
While the activity Swallow, Lesovsky and Knox are engaged in is known to the members of the board of supervisors as well as County Chief Executive Officer Gary McBride, Deputy Chief Executive Officer Leonard X. Hernandez, County Counel Mchelle Blakemore and other top county staff members, the will to counteract what is going on in that regard has yet to hit a critical level by which a move to stop it has taken place. Rowe’s prospect of prevailing in the supervisor’s race is a major factor discouraging county employees from taking action with regard to the matter.
There is nevertheless precedent in the county for law enforcement agencies stepping in to curtail such bold use of county facilities and governmental authority by powerful personages for electioneering purposes. In 2009, then-County Assessor Bill Postmus was arrested and eventually prosecuted for utilizing the assessor’s office for partisan political campaign efforts. Previous to being assessor, Postmus had been First District supervisor, including a two-year stint as the chairman of the board of supervisors. He was also the chairman of the San Bernardino County Republican Central Committee.
-Mark Gutglueck

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