Forced To By A Petition Drive, Supervisors OK Vote On Fire Service Tax

Their feet held to the fire, the members of the San Bernardino County Board of Supervisors voted on Tuesday to repeal the fire service tax they had imposed on all unincorporated county property owners in October 2018, and to give those property owners a direct opportunity to accept or reject the tax as an issue to be voted on in November.
County Fire Protection Zone 5 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.
More than three years ago, after witnessing the ease with which the municipal or local fire departments in the cities of San Bernardino, Twentynine Palms, Needles and Upland had been closed out and responsibility for fire protection services in those jurisdictions was turned over to the county fire division, county officials hit upon using a similar process to impose fire service fees on residents, businesses and landowners in the county’s unincorporated areas. In San Bernardino, Needles and Upland, the fire departments there had been operated as a feature of municipal government and paid for out of those respective city’s general funds. In Twentynine Palms, a special tax was collected to augment the Twentynine Palms Water District in its operation of the fire department. In each of those cases, the cities or the water district ceased funding the fire department’s operations by arranging with the San Bernardino County Local Agency Formation Commission to have the entirety of their respective city limits annexed into County Fire Protection Zone 5, such that a yearly assessment of around $150 was placed on each parcel within those jurisdictions. That money was then used to defray the fire department operations in those cities, which were taken on by the county fire department, which effectuated a takeover of each of those cities’ fire departments. In this way, city residents in San Bernardino, Upland and Needles were obliged to accept a fire service assessment they had never before paid.
To get around the California Constitutional requirement that any new tax to be imposed on California residents must be approved by a vote of those to pay the tax, the respective cities, the county and the San Bernardino County 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 Protection Zone 5 was cast on their behalf.
In the cities of San Bernardino, Needles 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 those cities’ 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. Each 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 defraying `pensions to retired municipal employees.
Upland, the San Bernardino County Local Formation Commission and the county had rolled the unincorporated 2.619-square mile community of San Antonio Heights that adjoins Upland into 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. San Antonio Heights residents took stock of the consideration that the annexation would change nothing for them service-wise, and resisted what was being imposed on them. 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 Judge Cohn making his ruling, however, the county presented to the board of supervisors an action item in October 2018 to overlay the entirety of the unincorporated land in San Bernardino County – roughly 94 percent of the county’s land mass, which excludes the cities of Chino Hills, Chino, Montclair, Upland, Ontario, Rancho Cucamonga, Fontana, Rialto, Colton, Grand Terrace, San Bernardino, Hesperia, Victorville, Adelanto, Barstow, Loma Linda, Highland, Redlands, Yucaipa, Big Bear, Twntynine Palms and Needles and the incorporated towns of Apple Valley and Yucca Valley – with County Fire Protection Zone 5. A protest process was used to effectuate that action. 3.2 percent of landowners sent in protest ballots, which was insufficient to prevent the expansion of County Fire Protection Zone 5.
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 their 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 the course of the more-than-five-month campaign, the Red Brennan Group gathered over 34,000 signatures on the petitions it had circulated.
Registrar of Voters Bob Page on March 25, 2020 sent a letter to inform Pruitt, Sayers and Jarvi that his office “has found the petition to be sufficient.”
On Tuesday, this week’s board of supervisors meeting was held outside the presence of the public, with supervisors Curt Hagman and Robert Lovingood present at the board’s meeting chambers in San Bernardino and supervisor Josie Gonzales participating telephonically and Rowe and Rutherford by video from their respective homes in deference to restrictions on public gatherings in response to the coronavirus crisis
During the meeting, the board accepted that the petition to trigger an election on the matter had sufficient signatures.
It then took up whether it should simply adopt the gist of the action called for in the measure put forth by the Red Brennan Group or hold an election relating to it in November.
“It is disappointing to me that this had to come by initiative petition rather than the board taking action,” said Supervisor Janice Rutherford, who in 2017 supported the imposition of Fire Protection Zone 5 on the City of Upland and the community of San Antonio Heights, and then was nearly voted out of office as a consequence of that in 2018. “I suggest we put this on the ballot and move forward and let the voters have their say.”
Third District Supervisor Dawn Rowe, in a dialogue with County Fire Chief Dan Munsey as the item was being discussed, noted that San Bernardino, Upland, Twentynine Palms and Needles are now dependent upon the county fire department for fire protection in their respective communities, and said, “This would unwind the entire Fire Protection 5 Zone, not just the expansion area.”
“That is correct, Ma’am,” said Munsey. “That includes all the annexations of the cities, as their funding mechanism either partially or the city in whole as the City of Twentynine Palms, as well as the expansion area.”
It was further suggested that the county by accepting the petition for the election would eradicate the original fire protection district in Helendale and Silverlakes.
“This is set up as a vote of the entire district, not just the annexation area,” said County Counsel Michelle Blakemore. ” So, it would, if it is repealed, wipe out what Helendale did back in 2006.”
Munsey said, “They are part of a fire protection district, all of those cities. They are annexed into the district. So, we would provide service to all those areas, but the level of service could be adversely affected by the loss of FP-5 [Fire Protections Zone 5].”
The board voted unanimously to submit the initiative petition measure, without alteration, to the voters be held on November 3, 2020, corresponding with this year’s general presidential election.
Tom Murphy, the president of the Red Brennan Group, dashed off a letter to Supervisor Rowe in the aftermath of the board’s vote in which he said it was because of the county’s stance, in particular that of county counsel, that necessitated the unwinding of the entirety of Fire Protection Zone 5.
“In your line of questioning on April 7th, you emphasized that the initiative to repeal the special tax associated with Fire Protection Zone 5 would repeal the tax entirely,” wrote Murphy. “Your assessment is correct. The initiative, as written and if approved by the voters, will repeal the special tax associated with Fire Protection Service Zone Five (FP-5) in its entirety. To understand why the county faces potential repeal of the entire FP-5 tax, rather than repeal of the expansion of the tax, look to the actions of San Bernardino County Counsel.”
Murphy continued, “Article XIII C § 3 of the California Constitution states, ‘…the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge.’ We believe this language provides sufficient legal basis to repeal the expansion of a tax. However, we were greatly concerned San Bernardino County Counsel would take the opposite position. If county counsel held that repeal of a tax was permissible, but repealing an expansion was impermissible, it would create substantial risk for our organization. After expending substantial resources to gather sufficient signatures we would then have to expend additional funds to defend the initiative in court. Given that county counsel has sued on 14 out of 18 initiative petitions our organization has previously sponsored, we evaluated the risk as ‘highly probable.’ Based on the text of Article XIII C § 3, however, we provided the county ample opportunity to develop a legal theory that would support the repeal of the expansion of the FP-5 tax. From June 2019 until signature gathering operations commenced in September, the Red Brennan Group repeatedly asked the County of San Bernardino to provide the number of signatures required to repeal the expansion of the tax. As a risk mitigation strategy, initiative proponents submitted two separate initiatives. One initiative proposed to repeal the expansion of the FP-5 tax. The second initiative proposed to repeal the FP-5 tax in its entirety. This strategy was necessitated by the county’s failure to provide an accurate and prompt response when the expansion question was first posed in June of 2019.”
Further, according to Murphy, “In a letter dated August 23rd, county counsel indicated the ‘…number of valid signatures for each initiative petition is 26,183.’ Setting the signature count equal for both initiatives was illogical and unfair. It is illogical because it required voters unaffected by the June 2018 FP-5 expansion to weigh-in on a petition repealing that expansion. It is unfair because it nearly doubled the number of signatures required to qualify the expansion version of the initiative. Finally, county counsel’s opinion lacked legal sophistication. By all appearances, the text of Article XII C § 3 provides substantial grounds for a legal theory that would support repeal of the expansion of a tax. San Bernardino County Counsel was unable or unwilling to pursue that theory. The county’s legal determination on the signature requirements simply parroted the text of the Elections Code. This is perplexing when compared to the legal creativity county counsel demonstrated when developing the legal support for the original expansion of the FP-5 tax, and classifying it as an annexation. County lawyers were able to weave disparate cords from the California Health and Safety Code, the Cortese Knox Herzberg Act, and the Sunset Beach v. Orange County LAFCO decision. The result was a legal theory that bound property owners to pay a special tax they never had the opportunity to approve. In other words, county counsel was sufficiently creative to present a legal theory that violated Article XIII C (2)(d) of the California Constitution. But, when given the opportunity, it was unable to find sufficient cause to support Article XIII C (3) of the Constitution.”
Murphy emphasized to Rowe that “Given our organization’s commitment to fiscal responsibility at the local government level, we were left with no other option than to advocate for the repeal of the FP-5 tax in its entirety. It would be ridiculous to ask voters to repeal a tax for property owners in the expansion area while leaving the tax intact in their own area.”
Murphy added, “Particularly galling is that county counsel’s legal determination on the number of signatures required to certify the petition proved to be wrong by orders of magnitude.”
-Mark Gutglueck

Leave a Reply