Top County Lawyers’ Falsification Ploy Failed To Block Tax Repeal Measure

In an apparent attempt to derail a citizen activist group’s effort to repeal what its members maintain are illegal assessments on all properties within San Bernardino County’s unincorporated areas, the county government’s legal representatives last summer imposed on the repeal petitioners a requirement that they obtain at least three times and what was arguably seven times the number of signatures set by California’s Constitution as the threshold requirement to force a vote on the matter.
In June of 2018, the San Bernardino County Board of Supervisors approved expanding the boundaries of County Fire Protection Zone 5 to include all private property within the county’s unincorporated areas, amounting to some 95 percent of San Bernardino County’s 20,105 total square miles, or roughly 19,100 square miles. The overlaying of County Fire Protection Zone 5 on those properties entailed the levying of a special tax of $157.26 per parcel on all unincorporated property owners in the county. The plan, floated by senior leadership within the county’s governmental structure, was to use state law applying to fire districts as a method to increase tax revenue.
The county’s action had taken place after previous efforts beginning in 2015 and concluding in 2017 to overlay County Fire Protection Zone 5, which was originally formed in 2006 as a means of funding the San Bernardino County Fire Department’s provision of fire prevention/suppression/protection service to the adjoining unincorporated county communities of Helendale and Silverlakes, onto the area within the city limits of the cities of San Bernardino, Twentynine Palms, Needles and Upland/adjoining unincorporated San Antonio Heights. Those four separate actions had been carried out through a process overseen by the San Bernardino County Local Agency Formation Commission. The city councils in San Bernardino, Needles and Upland, as well as the water district in Twentynine Palms, which had overseen that community’s fire department, sought to unload their ownership of, management and responsibility for each of their respective fire departments to the county. Those annexations had carried with them the imposition of assessments on the parcel owners within those jurisdictions to pay for the county fire department’s provision of service, taxes which had previously not been assessed. To get around the California Constitutional requirement that all taxes must first be approved by those upon whom they are to be levied, the cities, the county and the Local Agency Formation Commission carried out what was referred to as a “protest process” in which each landowner was given mailed notice of a one-month “protest period,” during which the county would accept letters protesting the creation of the assessment district. Each such letter was tallied as a vote against the annexation and assessment imposition. Each landowner who did not deliver a letter of protest was deemed to be in support of the annexation and assessments being levied, and a vote ratifying folding those cities into Fire Prevention Zone Five was cast on their behalf.
In the cities of San Bernardino and Upland, those entities thereafter committed to turning over a percentage of their property tax as part of the deal, and pocketed the difference between the savings realized from the closure of the fire department and the loss of a percentage of property tax each had committed to the county, as the city’s residents, business operators and property owners were at that point paying the lion’s share of the freight with regard to the provision of fire service. The city was free to use the money it netted as it deemed necessary, which in practical terms in both Upland and San Bernardino meant paying down substantial costs in paying pensions to retired municipal employees.
While this arrangement did not sit well with, indeed angered, a number of residents within those communities that were tuned into what the Local Agency Formation Commission was doing with regard to one of their local institutions and their control over the funding for a key element of service long considered to be an inherent part of the responsibility of local government, the vast majority of residents in those communities, unaware, apathetic, uncaring or uninformed about the pending county takeover of their local fire department, did nothing to prevent their community’s annexation into County Fire Protection Zone 5.
Only in the well-heeled unincorporated 2.619-square mile community of San Antonio Heights was there significant active resistance to the annexation. San Antonio Heights, since it was not a part of any city, was already provided with fire service by the county fire department. In seeking to accommodate the Upland City Council’s request that it consider that city’s annexation into County Fire Protection Zone 5, the Local Agency Formation Commission had rolled San Antonio Heights into the mix with Upland, with which San Antonio Heights is contiguous, such that both the city and its neighbor were part of the same annexation proposal. San Antonio Heights residents took stock of the consideration that the annexation would change nothing for them service-wise,  and would not improve the level of care the community would receive while imposing on them an annual $150 per parcel assessment they had never paid before. Indeed, so animated about what was going to be imposed upon them, a large number of the residents of San Antonio Heights protested mightily. Aided by the consideration that the community is a relatively compact one with a population of 3,371 of whom 1,561 were registered to vote, before the one-month protest period had run contact was made with virtually all of the residents and landowners by those militating against the annexation. Consequently, a number well above the 50 percent plus one threshold to reject the Fire Protection Zone 5 takeover manifested in San Antonio Heights, and those residents and landowners registered letters of protest accordingly. Because, however, the San Antonio Heights annexation was bundled together with the annexation of Upland, and because fewer than 2 percent of the landowners and voters in 74,000 population Upland lodged letters of protest, the annexation was allowed to occur. Thereafter, a group of San Antonio Heights Residents banded together as the San Antonio Heights Homeowners Association and filed suit against the annexation of their community into Fire Protection Zone 5. Ultimately, Judge David Cohn in February 2019 ruled in favor of the San Antonio Heights Homeowners Association in the case it had brought against the City of Upland, the County of San Bernardino and the San Bernardino County Local Agency Formation Commission, excusing the totality of San Antonio Heights from being annexed into Fire Protection Zone 5 and each of its property owners having to pay the $150 parcel tax.
Prior to that, however, the county had engaged in the countywide unincorporated property annexation ploy, not only outmaneuvering San Antonio Heights residents but essentially requiring that every property owner living outside of the county’s 24 incorporated municipalities pay the annual $157.26 per parcel tax, which was subject to a 3 percent annual inflation increase.
County officials, having seen how easily the expansion of County Fire Protection Zone 5 could be effectuated, the experience with San Antonio Heights not outstanding, calculated that it could replicate the expansion to cover 95 percent of the county’s land mass. The county had an incentive for doing so in that it needed to close a gap in the San Bernardino County Fire Protection District’s budget. Senior county leadership reasoned such a scheme could be carried off without voter approval by again utilizing the protest procedure. Accordingly, county officials simply overlaid all unicorporated land in the county with Fire Protection Zone 5. The total of proceeds to be realized from the Fire Protection Zone 5 expansion would yield a $26.9 million increase to County Fire’s coffers – with the potential to increase at three percent per year indefinitely.
Last summer, the Red Brennan Group, which is composed of several individuals who were associated with the late tax reduction and government reform advocate Kiernan Brennan, together with three residents of the unincorporated county area agreeing to sponsor an initiative –  Charles Pruitt, Rick Sayers, and David Jarvi – informed the county and gave legal notice of intention to circulate a petition to put a ballot measure before the county’s voters in its unincorporated area seeking the repeal of the special tax associated with Fire Protection Zone 5.
In doing so, the Red Brennan Group’s attorney, Aaron Burden, sent a letter to San Bernardino County Registrar of Voters Bob Page, seeking guidance from him on how many valid signatures the petition gatherers would need to collect to qualify the tax repeal measure for the ballot. In lieu of Page responding, Chief Assistant County Counsel Penny Alexander-Kelley, writing on behalf of County Counsel Michelle Blakemore, told Burden in a letter dated August 23, 2019, that the group would need to collect at least 26,183 signatures to force the repeal vote onto the ballot. “Your specific question is: ‘What is the number of valid signatures required to qualify the initiatives that were submitted to your office on August 16, 2019?’” Alexander-Kelley wrote. “The registrar of voters’ records indicate that the Red Brennan Group submitted two initiatives on August 16, 2019 both related to the special tax and San Bernardino County Fire Protection Zone FP-5. Elections Code section 931 O(a) provides that the number of signatures required for an initiative petition is ‘not less in number than 10 percent of the voters in the district, if the total number of registered voters is less than 500,000 ….’ as is true for the San Bernardino County Fire Protection District. Further, section 931 O(b) provides that the number of registered voters referenced in subd. (a) shall be calculated as of the time of the last report of registration by the county elections official to the Secretary of State made before publication or posting of the notice of intention to circulate initiative petition. According to the paperwork submitted to the registrar of voters, the notices of intent to circulate were published on August 15, 2019. Therefore, the “last report” to the Secretary of State prior to that date of publication was on February 10, 2019. The registrar of voters advises that the number of registered voters for the Fire Protection District as of that date was 261,831, therefore the number of valid signatures required for each initiative petition is 26,183.”
Accordingly, the Red Brennan Group undertook its signature-gathering effort after having made all of the required filings and legal notifications. In the course of the more-than-five-month campaign, it has compiled petitions to which over 34,000 signatures of individuals believed to be registered voters in the county living entirely within unincorporated areas have been affixed.
In the meantime, acting upon a tip provided by Red Brennan Group employee Solomon Barks, the organization contacted the Howard Jarvis Taxpayers Association for assistance. After making an analysis of the August 23, 2019 Blakemore/Alexander-Kelley letter, Laura Dougherty, senior staff attorney for the Howard Jarvis Taxpayers Association, determined that the county’s lawyers had misinterpreted one key portion of the law relating to qualifying a tax imposition repeal for the ballot and had ignored entirely another key provision of the law.
In a letter dated January 28, 2020 Dougherty wrote “regarding an August 23, 2019 letter from your office to Aaron Burden at The Red Brennan Group… You answered a question on behalf of Bob Page, the registrar of voters for San Bernardino County. Mr. Burden asked, ‘What is the number of valid signatures required to qualify the initiatives that were submitted to your office on August 16, 2019?’ Your answer to Mr. Burden was 10% of registered voters per Elections Code § 9310, or in your case, 26,183 signatures. While this is generally the calculation for district initiatives, it is not the case here. The Red Brennan Group’s initiatives ‘affect local taxes, assessments, fees and charges.’ Thus, the applicable law is Proposition 218 at Article XIII C § 3 of the California Constitution: Initiative Power for Local Taxes, Assessments, Fees and Charges. Notwithstanding any other provision of this Constitution, including, but not limited to, Sections 8 and 9 of Article II, the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives.”
Dougherty’s letter continues, “Therefore, the local government must abide by the signature requirement applicable to statewide statutory initiatives.”
Dougherty added, “This is found in Elections Code § 9035: An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by registered voters equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the voters for all candidates for Governor at the last gubernatorial election preceding the issuance of the circulating title and summary for the initiative measure by the Attorney General.”
Dougherty concluded, “Accordingly, please recalculate the number of signatures needed for The Red Brennan Group. The correct calculation is 5% of the voters in the district who voted in the last gubernatorial election.”
In an email dated February 3, the office of San Bernardino County Counsel acknowledged the analysis provided by the Howard Jarvis Taxpayers Association was correct. In a February 5 email to Burden, San Bernardino County Registrar of Voters Bob Page stated his office “…is currently working to calculate a number of required signatures for…” the initiative.
In the November 2018 election, during which the race for governor was held, 546,041 voters throughout San Bernardino County, including ones living within incorporated cities and in the county’s unincorporated areas, participated.  Of those 73,526 resided outside the county’s incorporated cities and within the unincorporated areas of the county, where Fire Protection Zone 5 has been overlaid. Had the standard of five percent of the 73,526 voters from the county’s unincorporated areas participating in the November 2018 vote been applied, the actual number of signatures necessary to qualify the measure for the ballot would have been 3,677 such endorsements provided by voters residing in the county’s unincorporated area.
The Red Brennan Group conservatively estimates the actual signature requirement to qualify the initiative is approximately 7,800 valid signatures.
While the determination/admission by both county counsel and the registrar of voters office that the number of signatures needed to qualify the measure for the ballot was far below the 26,183 figure quoted in August, that acknowledgment came too late to prevent the Red Brennan Group’s expenditure of well beyond double the funds and resources necessary to qualify the tax rescission measure for the November 2020 ballot.
Next week, after having made copies of all of the petitions and the signatures affixed to them, the Red Brennan Group will hand over the signed petitions containing all 34,000-plus signatures to the registrar of voters office.
It appears by setting the bar at something more than seven times as high it was legally permitted to for the Red Brennan Group’s signature gathering effort, the county was hoping to prevent those activists from succeeding with their cause. Instead, it appears the county has touched a nerve among its residents. Though generally not particularly concerned with the details of local government, residents of the county’s far-flung unincorporated areas have now become, as a consequence of the Red Brennan Groups activities, concerned about maintaining their rights under the California Constitution.
Tom Murphy, the spokesman for The Red Brennan Group said, “We are grateful to our experienced line employee that pointed us to the potential discrepancy in the signature requirement provided by the county. We are also grateful the Howard Jarvis Taxpayers Association brought its vast expertise to the table to advocate for the taxpayers in San Bernardino County. If you will, our organization’s dog in this fight is simply ensuring San Bernardino County’s citizens retain their constitutional right to approve taxes via a direct vote by the people. What the county bureaucracy is currently doing via the Fire Protection Zone 5 special tax is unconscionable. Expanding a special tax without a two-thirds vote of the electorate is a clear violation of the law. Elected supervisors should never have allowed this concept to see the light of day. We trust the county will qualify the initiative and place it on the November 2020 ballot.”
Blakemore, as county counsel, is paid $248,452.61 in annual salary, $22,089.86 in add-ons, along with $137,809.47 in benefits for an annual total compensation package of $408,351.94.
Alexander-Kelley is provided with a $187,500.51 salary augmented by $23,089.59 in further pay topped with $103,034.20 in benefits for, and thus is paid $313,624.30 in total annual compensation.
-Mark Gutglueck

Leave a Reply