By Mark Gutglueck
In a figurative example of a public entity racing to drag a horse onto the shoulder of the road to bring it around and in front of the cart the beast was improperly placed behind, the Hesperia City Council this week voted 4-to-1 to actuate its legislative subpoena power.
The rare action was taken more than seven months after the city council’s split 3-to-2 vote in September to remove then-City Councilman Jeremiah Brosowske from office based on an assertion that he was not living, as he claimed, in his apartment at 16784 Sultana Street in Hesperia, and that he therefore did not meet the residency requirement to hold office.
Brosowske, who abided by the council’s action and was then replaced by the woman he defeated in the 2018 election, has taken legal action contesting his removal, including making a petition with the California Attorney General’s Office to make an independent determination of whether he met the residency requirements.
The action taken by the city council on Tuesday night was a tacit admission that it did not possess the evidence to establish that Brosowske was not in residence at the unit at the Sultana Mulberry Apartment Complex for which he was paying $875 per month rent in 2018 and last year, and that the case against Brosowske that the council majority was relying upon in making its vote to remove him was composed primarily of yet-unproven suspicion.
The then-27-year-old Brosowske was appointed to the city council in July 2018, some two months after the death of Hesperia Mayor Russ Blewett, garnering the votes of then-Councilman Paul Russ, then-Mayor Bill Holland and Councilwoman Rebekah Swanson. Then-Councilman Larry Bird opposed Brosowske’s appointment. Among the eight other candidates overlooked in the council’s decision was another applicant, Brigit Bennington. As an incumbent councilman, Brosowske then ran in the November 2018 race for city council in the city’s Fourth District in what was Hesperia’s first by-district election in its then-30-year history as a municipality. Though Bennington outdistanced Brosowske in the initial returns that came in election night, over the next several days as provisional and late posted mail-in votes arrived, Brosowske overtook her and was declared the winner.
Brosowske never enjoyed a warm relationship with Bird, who was elevated after the election by his colleagues to serve as mayor. In short order, Brosowske came to loggerheads with Holland, who was reelected to the council as the representative of the Second District in the 2018 election and then found himself besieged with a recall effort that was bankrolled by developmental interests closely aligned with Brosowske. As the ultimately unsuccessful effort to gather sufficient signatures to force a recall question against Holland continued, Brosowske found himself at odds with three-fourths of his council colleagues – Holland, Bird and Cameron Gregg. By last summer, lines in the community were increasingly starkly drawn, such that a movement to oust Brosowske had developed paralleling the one to remove Holland. Those seeking Brosowske’s exit, however, chose not to pursue a recall but rather to utilize reports that Brosowske was in fact not living in the unit he was renting at the Sultana Mulberry Apartment Complex, but rather with his girlfriend/fiancée in Rancho Cucamonga.
At its September 3, 2019 meeting, the Hesperia City Council considered two items relating to Brosowske’s alleged non-residence in the city. The first of those proposed the hiring of an investigator to determine whether or not Brosowske previously met and was then meeting the residency requirements to have held the at-large council position he was appointed to the previous year and the district council position he was elected to in November 2018 while he enjoyed incumbency in the appointed at-large position. The second item was a vote to remove Brosowske from office based on the assumption he did not meet and never did meet the residency requirement, despite the investigation the first action authorized into that very question not yet being carried out.
Brosowske publicly asserted that he was in fact living in the Sultana Mulberry Apartment unit he was renting. Prior to the meeting, Brosowske’s Corona-based attorney, Chad Morgan, who has had success preventing the removal of other public officials from office charged with residency violations, went to court on August 30 to attempt to convince Judge David Cohn to block the city from removing Brosowske from office. Cohn refused to issue such an order. Brosowske and Morgan then submitted to the city council at its September 3 meeting a 211-page compendium of documents, including Brosowske’s rental agreement for Unit 7 at the Sultana Mulberry Apartments, Brosowske’s utility bills for the apartment, printouts of text messages between him and former Hesperia City Councilman Bill Jensen to show that he was living at Jensen’s home at 8075 E Avenue in Hesperia during the weeks and months while Brosowske was seeking appointment to the council and had been appointed to the council but before he had moved into the Sultana Mulberry Apartments; together with a sworn declaration from Brosowske asserting he lived at the 16784 Sultana Street Unit 7 address.
Following public statements from Brosowske’s supporters and detractors, the city council at the September 3, 2019 meeting deliberated over the matter.
Councilwoman Rebekah Swanson, whose political affiliations include Bill Postmus, a former county supervisor and county assessor who had served as Brosowske’s mentor, joined with Brosowske in opposing undertaking the investigation, expressing the belief that the entire contretemps relating to Brosowske boiled down to political differences between Brosowske and most especially Holland, and to a lesser extend Bird and Gregg. When the council took up the question of Brosowske’s removal, Swanson gave discourse to what many of those attending or observing the meeting felt, which was that there was a logical absurdity to considering and acting on the two items at the same time. Essentially, it was perceived by many that undertaking an independent investigation of the matter would be an admission that sufficient facts were yet needed to warrant some form of future action against Brosowske if such were to be taken, and that at that time those facts upon which to take any action were not yet known. Thus, it followed, taking any action toward removing Brosowske would be premature, since the facts to justify his removal had not yet been established.
Holland, who clearly had the strongest animus toward Brosowske, initially seemed to reflect an understanding that ordering up an investigation into the grounds for removing Brosowske from office would be incompatible with expelling him from the council at the same time.
“I’m not asking for a prosecution,” Holland said at the September 3 meeting. “I’m only asking for an impartial investigation.”
But as the discussion of the matter continued, the council majority’s momentum toward simply being done with Brosowske held sway, and in the end Holland, Bird and Gregg steamrolled over Swanson’s suggestion that the council should make an analysis of the documentation provided by Brosowske before taking the vote to remove him.
Referencing the 211 pages of documents submitted by Morgan on Brosowske’s behalf as being irrelevant at that point, Bird suggested, in essence, that what had been provided was a day late and a dollar short.
“This isn’t the first council meeting that anybody in the audience has requested information,” Bird said.
The council then voted 3-to-2, Swanson and Brosowske dissenting, to remove Brosowske from office.
In October, the council appointed Brigit Bennington to replace Brosowske.
In the meantime, Brosowske and Morgan have not given up on their claim that Brosowske is entitled to serve as the Fourth District councilman. Morgan, on behalf of Brosowske, has forced a full quo warranto procedure, which involves the protocol of seeking, from the California Attorney General’s Office, a determination if adequate grounds exist to warrant a civil suit seeking an officeholder’s removal or reinstatement. Morgan, who has experience in pursuing such a process to a successful conclusion for his clients in the past, has energetically delineated a case that the city council acted in unjustifiable haste in September. And the investigation the council requisitioned on September 3 has yet to produce results to conclusively refute the 211 pages of documentation Morgan presented.
This week, the city council, meeting at Hesperia City Hall outside the presence of the public as a safeguard in the face of the continuing coronavirus crisis, considered adopting a resolution authorizing the issuance of legislative subpoenas for the purpose of investigating violations of Hesperia Municipal Code Section 1.09.020, i.e., violations of the residency requirement to hold office generally, which specifically applies to looking into the circumstance relating to Brosowske’s living arrangements.
According to a staff report pertaining to the item taken up Tuesday, “The city council has the legal authority to issue legislative subpoenas to investigate potential violations of Hesperia Municipal Code Section 1.09.020 and report the same to the San Bernardino County District Attorney and/or the California Secretary of State. (Government Code section 37104.)”
The staff report and the resolution sidestepped the actual reason for the action, which is that the council in September clearly bit off more than it could chew by removing Brosowske without having constructed an air-tight case for doing so ahead of time, such that it is now playing catch-up, what it hopes will be in time to present a convincing case to the California Attorney General in conjunction with the quo warranto process. Failure to do so will result in Brosowske being reinstated as Fourth District councilman and Bennington’s appointment being rescinded.
According to the resolution, “California Government Code sections 36502(a) and 1770(e) provide that if a member of the city council moves his or her place of residence outside of the city limits, his or her office on the city council shall immediately become vacant. At several meetings of the city council, members of the public alleged articulable facts and circumstances to suspect that then-councilmember Jeremiah Brosowske was not a resident of the 4th Council District of the city at the time nomination papers were issued and at times thereafter. On September 3, 2019, the city council voted to declare the office of councilmember for the 4th Council District of the city vacant due to the suspected lack of residency of then-Councilmember Jeremiah Brosowske. Former Councilmember Brosowske continues to assert that he satisfied the residency requirements of the Hesperia Municipal Code and the California Government Code. The city council has the legal authority to issue legislative subpoenas pursuant to California Government Code sections 37104 and 37105 to investigate potential violations of the Hesperia Municipal Code section 1.09.020 and California Government Code section 34882 and report the same to the San Bernardino County District Attorney and/or the California Secretary of State. The City of Hesperia does hereby initiate a legislative proceeding before the city council to investigate and determine how and when the residency requirements for holding office on the city council may have been violated in contravention of Hesperia Municipal Code section 1.09.020 and Government Code sections 34882 and 1770 and to take such action as may be warranted by law, including possible reference of such violations to the California Secretary of State and provision of any materials discovered in such investigation to the office of the San Bernardino County District Attorney.”
In putting the item on the agenda, City Clerk Melinda Sayre placed the matter on the consent calendar, which is reserved for non-controversial issues, all of which are voted upon collectively with a single vote. Councilwoman Rebekah Swanson, however, requested that the item be pulled off the consent calendar and considered through a more deliberative process that included council discussion before it was voted upon singly.
This turned into something of an ordeal for City Attorney Eric Dunn, who found himself obliged to revisit what had occurred in September, when the council, with him acting as its legal advisor, had somewhat ill-advisedly voted to take action, the basis for which had not been factually or legally established beforehand.
Dunn said the situation had evolved, and he reminded the council that it had, in response to his having kept its members abreast of his preparation of the city’s response to Brosowske’s and Morgan’s quo warranto filing, directed him to issue a subpoena for records “that might go toward the residency issue. Because we don’t have the power to issue search warrants, one option under the government code is to issue a legislative subpoena, which must be done by the city council. So that was the direction of the council in prior meetings.”
In fielding the council’s questions, in particular Swanson’s, Dunn had to twice acknowledge that the city could not, seven months after removing Brosowske, prove it had legal grounds for doing so.
“So those records that would be subpoenaed – you’re not sure what those would be or do you have an idea?” Swanson asked.
A clearly uncomfortable Dunn responded, “I have an idea. I would rather not discuss it in open session, but it would be records that would go towards whether former Councilmember Brosowske was a resident at the time he ran for office.”
In attempting to explain how use of the obscure and not-often-actuated legislative subpoena power could be justified, Dunn said, “The basic parameter in the Government Code is that it has to be a proceeding that’s before the legislative body. So in this case we have the potential violation of the municipal code, and I’d really rather not get into a lot of detail here in the open session but we have cases on file with the attorney general’s office that could come back to the city if the attorney general grants Mr. Brosowske the permission to sue, so that seems to be an action and proceeding in front of the body right now.”
Dunn said the California Attorney General’s Office had not yet made a determination as to the validity of the Brosowske/Morgan quo warranto filing “Not as of today, and they have no deadline to do so, so we’re just waiting,” Dunn said.
Swanson asked, “Is it common for cities to issue subpoenas to citizens?”
“Not in my experience,” Dunn said. “This is the only one that I’ve ever done. It’s not common, but it is done, and it is in the Government Code that the legislative body has the power to do that.”
Dunn acknowledged that the investigation had not been carried out prior to the council’s action and that the city is not currently armed with sufficient information to defend itself against the lawsuit Brosowske is purposed to file to reestablish himself as a councilman.
“If the Attorney General gives permission to sue, then this information we would seek would go towards supporting the majority of the city council’s position on it,” Dunn said.
When Mayor Larry Bird sought to wring from Dunn a statement to the effect that the city had been reasonable in the action that it had taken to this juncture, Dunn, using as much politesse as he could, opted out of going on the record as personally or professionally supporting the council’s September decision.
“Would you say that while it’s rare, that it would be an appropriate use of a subpoena to find out if someone defrauded the citizens of Hesperia?” Bird asked. “Would you say that would be a reasonable use of the legislative subpoena?”
“I’m not sure I would use those exact words, Mayor,” Dunn responded. “I’d say the Government Code grants the legislative body [the authority] to issue legislative subpoenas to gather information in a proceeding that is before the body.”
At that point, Bird indicated that he believed the imperative, both moral and political, of removing Brosowske from office that he, Holland and Gregg had acted upon in September trumped any minor legal considerations.
“If we would put it in those terms, and perhaps you’re not comfortable with that, I’d be more than comfortable to say it in that way,” Bird responded.
Somewhat awkwardly, Dunn sought to steer around the council majority essentially asking him to justify the action they had taken with regard to Brosowske.
“If the city council majority thinks this is a valid use of the legislative subpoena power to look into these issues, then it is,” Dunn said, indicating the council had the authority to make such a decision.
In responding to the council’s inquiries, Dunn acknowledged that it had not gotten documents and records relating to exactly where Brosowske lived during the time in question, maneuvering clear of the materials in the 211-page compendium proffered by Morgan in September. He pointedly avoided any assertions that Brosowske was not actually living in Hesperia, consistently using the term “alleged” and “potential” when referring to a “violation of the municipal code” on Brosowske’s part.
At one point, Councilman Cameron Gregg, in endeavoring to serve up a justification for the council assuming the power to issue legislative subpoenas, said doing so would be necessary in responding to the quo warranto filing, while inadvertently describing how the council had gotten ahead of itself in September by taking action without having the documentation in hand to justify what it had done.
Gregg asked Dunn if it would be “better to be prepared than waiting until the last minute to catch up?”
Dunn indicated that the legislative subpoena power might prove useful in refuting what Brosowske and Morgan have put into their quo warranto filing, as the city at present does not have the material it needs to make its own case.
“The records my fellow partner litigators are thinking of were not provided,” Dunn said. “The nuance is the subpoena might be issued to other companies or entities, so they weren’t involved yet.”
In his questioning of Dunn, Councilman Bill Holland acknowledged that an investigation had not yet been done.
Ultimately, the council voted 4-to-1, with Swanson dissenting, to take on the legislative subpoena authority.
By Mark Gutglueck