By Mark Gutglueck
Less than a month after more than two-thirds of San Bernardino County’s voters passed Measure K, which calls for those elected as county supervisors going forward to be limited to one four-year term in office and have their total salaries and benefits limited to $60,000 per year, the board of supervisors this week took legal action to prevent the measure’s provisions from going into effect.
In taking the extremely rare legal action of challenging voter-approved legislation, county officials insisted that preserving the current pay of the members of the board of supervisors – whose total annual compensation ranges from $242,941.27 to $280,905.92 – is a matter of maintaining good governance.
In undertaking the suit, the board of supervisors filed suit not against the Red Brennan Group, which sponsored Measure K, but rather, somewhat surprisingly, against their own immediate employee, Lynna Monell, the clerk of the board of supervisors of San Bernardino County. The legal action, nonetheless, was ultimately aimed at the Red Brennan Group, as included in the suit are does 1 through 100, inclusive, among whom the Sentinel is informed, will be any and all members of the Red Brennan Group to eventually be identified by the county. The county is, the Sentinel was told, currently compiling a list of the Red Brennan Group’s membership. The intent is to seek a substantial monetary award from the Red Brennan Group and each of its members, both as a punishment for having pursued the passage of Measure K, and as an intimidation tactic the supervisors hope will convince a substantial number of the group’s members to depart, such that the movement the Red Brennan Group represents will be divided and thus overcome.
The board of supervisors is represented in its legal action by the Los Angeles-based Sutton Law Firm and three of its attorneys, Bradley Hertz, James Sutton and Nicholas Sanders.
In its petition filed on December 2, the board of supervisors requested that “this court award petitioner the costs of this proceeding; and that this court grant petitioner such other, different, or further relief as the court may deem just and proper.”
The Red Brennan Group asserted that the county’s move is a cynical ploy to simply keep the pay level for the county’s ruling elite intact.
In the petition, Hertz, Sutton and Sanders maintain on the board of supervisors’ behalf that only the board of supervisors can determine its members’ pay; that the supervisors have a constitutional right to serve as many terms as they personally wish as long as they can maintain the support of the voters in doing so; that the Red Brennan Group, as Measure K’s proponents, packed too many provisions into the measure; and that Measure K interferes with the operation of county government.
According to the board’s writ of mandate petition, “Measure K suffers from the following fatal flaws, which make it unconstitutional, legally invalid, and/or otherwise unenforceable: (a) Measure K violates Article XI, Section 1(b) of the California Constitution, which requires that county boards of supervisors, and not the voters via the initiative process, shall prescribe supervisors’ compensation; (b) Measure K violates the First and Fourteenth Amendments to the United States Constitution by purporting to enact a single lifetime term limit provision for members of the county board of supervisors; (c) Measure K violates the initiative power of the electorate by intruding on matters that are exclusively delegated to the local governing body; (d) Measure K violates Article II, Section 8(d) of the California Constitution by embracing more than a single subject; (e) Measure K violates Article XI, Section 4(d) of the California Constitution, and California Government Code Sections 25000, et. seq, by impairing essential government functions; (f) Measure K violates California Government Code Section 36502(b)’s prohibition on retroactive term limits; (g) Measure K violates California Government Code Section 1235’s prohibition on the adjustment of sitting officials’ salaries; and/or (h) Measure K violates the law because its term limit provision is not severable from its compensation provision.”
According to the petition for the writ of mandate, “Accordingly, and as alleged herein, petitioner/plaintiff Board of Supervisors of the County of San Bernardino seeks judicial relief by way of: (1) a writ of mandate compelling respondents and defendants not to take any actions that would cause the implementation of Measure K’s provisions; (2) injunctive relief preventing respondents and defendants from taking any actions that would cause the implementation of Measure K’s provisions; (3) a judicial declaration that Measure K is invalid and unenforceable; (4) a judicial declaration that if Measure K is valid and enforceable, its provisions do not take effect until 2022 at the earliest; and (5) such other and further relief as the court deems just and proper.”
Noting that “For Fiscal Year 2019-2020, the county has an adopted modified
budget of $7.238 billion” and that “For Fiscal Year 2020-2021, the county has a recommended budget of $6.997 billion,” the petition states, “Given the size and complexity of San Bernardino County, the office of supervisor is recognized as a position that requires a considerable investment of time and due diligence from board members in order to effectively fulfill their duties in service to the public. These duties include but are not limited to: ensuring fiscal responsibility; representing the interest of the public during public meetings and hearings of the board of supervisors and other public committees; participating in the response to natural disasters and other emergencies; conducting meetings with members of the public; ensuring that the county is effectively represented with respect to federal, state, and other local government agencies; and reviewing issues impacting the county and its residents, businesses, developed and natural environment, and health and safety. The position of supervisor requires supervisors to be responsive to the needs of the public on a 24 hours a day, seven days a week basis.”
In addition, according to Hertz, Sutton and Sanders, the board of supervisors has duties beyond serving in each member’s supervisorial role, including as voting and participatory members of multiple regional and local governmental adjunct committees, commissions and boards, including the Agua Mansa Industrial Growth Association, the Arrowhead Regional Medical Center Joint Conference Committee, the Behavioral Health Commission, the Big Bear Area Regional Wastewater Agency, the Big Bear Valley Recreation and Park District, the Bloomington Recreation and Park District, the board of supervisors-governed county service areas, the CAL-ID Remote Access Network Board, the California State Association of Counties, the First 5 Children and Families Commission, the Children’s Policy Council, the Crafton Hills Open Space Conservancy, the Head Start Shared Governance Board, the High Desert Corridor Joint Powers Authority, the Indian Gaming Local Benefit Committee, the Indian Wells Valley Groundwater Authority, the In-Home Supportive Services Public Authority, the Inland Counties Emergency Medical Agency, the Inland Empire Economic Partnership, the Inland Empire Health Plan, the Inland Empire Public Facilities Corporation, the Inland Valley Development Agency, the Interagency Council on Homelessness, the Mojave Desert Air Quality Management District, the Mojave Desert and Mountain Recycling Authority, the Morongo Basin Transit Authority, the Mountain Area Regional Transit Authority, the National Association of Counties, the Ontario International Airport Authority, the Omnitrans Board of Directors, the Quad State Local Governments Authority, the San Bernardino County Employees’ Retirement Association Board of Retirement, the San Bernardino County Financing Authority, the San Bernardino County Fire Protection District, the San Bernardino County Flood Control District, the San Bernardino County Industrial Development Authority, the San Bernardino County Law Library Board of Trustees, the San Bernardino County Local Agency Formation Commission, the San Bernardino County Transportation Authority, the San Bernardino International Airport Authority, the San Bernardino Municipal Water District Advisory Committee on Water Policy, the Santa Ana River Parkway Policy Advisory Group, the Santa Ana Watershed Project Authority, the Solid Waste Advisory Taskforce, the South Coast Air Quality Management District, Southern California Associated Governments, the Southern California Water Coalition, the Successor Agency to the San Bernardino County Redevelopment Agency, the Upper Santa Ana River Washland Management and Habitat Conservation Plan Taskforce, the Urban Counties Caucus, the Victor Valley Economic Development Authority, the Victor Valley Transit Authority and the Victor Valley Wastewater Reclamation Authority.
Citing the 1976 case of Meldrim v. Board of Supervisors of Contra Costa County and the 1999 case of Jahr v. Casebeer, Hertz, Sutton and Sanders asserted, “Courts have recognized that [California Constitution] Article XI, Section 1 (b) provides that only county boards of supervisors have the right to set supervisor salaries, and that such salaries may not be set by citizen initiative. Section 4(b) affirms Section l(b)’s limited grant of power, and both of these sections were amended in the State Constitution in 1970 via Proposition 12, entitled ‘Compensation of County Supervisors.’ Proposition 12 removed the power to set county supervisors’ salaries from the California State Legislature and vested such power in the boards of supervisors. Section 4(b) provides that if a county charter includes a provision that compensation is to be set by legislative action, then only the county’s governing body may do so. Section 4(b) does not modify or otherwise affect Section l(b)’s provision that supervisor compensation may be set only by the county’s legislative body. To find otherwise is plainly inconsistent with the Constitution, and is inconsistent with the general scheme of county government.”
Just because the county had allowed Measure K onto the ballot and the voters had voted by a margin of more than two-to-one to approve it does not mean that its provisions are binding, Hertz, Sutton and Sanders maintain in the petition.
“Although boards of supervisors are required to place county charter amendments on the ballot for approval or rejection by the county’s voters, such action is distinguishable from measures such as Measure K, which are placed on the ballot via the citizen initiative process, as opposed to the governing body via an ordinance,” according to the petition. “Accordingly, Measure K violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative. Measure K must not be implemented because it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors.”
In a letter sent this morning, December 4, to Aaron Burden, a lawyer for the Red Brennan Group, Hertz said, “The petition/complaint is being brought pursuant to California Code of Civil Procedure Sections 1085, 525 and 1060, et seq., on the grounds that Measure K is unconstitutional, legally invalid, and otherwise unenforceable, and that Ms. Monell, among others, must not take any actions that would cause the implementation of Measure K. We intend to demonstrate to the court, via our ex parte papers, and when the matter is fully briefed and heard on its merits, that Measure K is invalid and unenforceable, that imminent and irreparable harm will occur if Measure K is implemented, and that therefore good cause exists to warrant the granting of immediate interim relief, and ultimately, preliminary and permanent relief, preventing the implementation of Measure K.”
On its face, there were several apparent problems and inconsistencies with the petition for a writ of mandate and the position the board of supervisors is taking in pursuing it.
The board of supervisors’ foremost difficulty is that, according to the final certified November 3 election results released this week by the San Bernardino County Registrar of Voters Office, Measure K passed with 516,184 or 66.84 percent of the 772,282 voters participating supporting it, and 256,098 voters or 33.16 percent opposed.
Secondly, the Red Brennan Group on March 20, 2020 presented to Registrar of Voters Bob Page petitions endorsed by the signatures of 75,132 county voters which requested what would later be designated as Measure K on the ballot. Page on May 1, 2020 certified the signatures on the Measure K initiative petitions as sufficient. On May 19, 2020, Page presented his certificate of sufficiency to the board of supervisors. The board of supervisors then delayed until June 23, 2020 voting to place Measure K on the November 3, 2020 Presidential General Election ballot, purposefully temporizing while personnel from the county chief executive’s office, the county chief operating officer’s staff and the county’s in-house stable of attorneys, known as the office of county counsel, researched to determine if there were operational, procedural or legal grounds to justify keeping Measure K off the ballot. County staff was unable to cite adequate grounds for keeping the measure off the ballot.
Thirdly, while the board of supervisors in its petition for a writ of mandate is maintaining that the county’s voters do not have the authority to set the board of supervisors’ pay rate, on three separate occasions, including as recently as this year, the board of supervisors has placed measures before the voters to have them set the supervisors’ pay. In 2006, the board of supervisors, led by then-Second District Supervisor Paul Biane, championed what was ultimately designated as Measure P, which called for raising the supervisors’ individual salaries before benefits from $99,000 per year to $151,000 per year, while imposing on the supervisors a three-term limit going forward. Measure P passed, and the board of supervisors at no time, including up to the present, sought to block Measure P’s implementation.
In 2012, government reform activist Kiernan “Red” Brennan, for whom the Red Brennan Group is named, succeeded in gathering sufficient signatures to place what was ultimately designated as Measure R on that year’s November ballot, an initiative that was identical to Measure K in its remuneration limitation aspect with regard to the supervisors’ pay level, reducing what was then each supervisor’s total annual $219,471 compensation, which at that time consisted of $151,971 yearly salaries and $67,500 in benefits, to $60,000, composed of $50,000 in salary and $10,000 in benefits annually. In reaction to Measure R, the members of the board of supervisors, alarmed at the prospect that they would be subject to seeing their pay reduced by more than two-thirds but simultaneously recognizing that the public’s appetite for reform was intense, used their authority as government officials to place an alternative measure on that year’s ballot, what was ultimately designated as Measure Q. Measure Q called for leaving the supervisors’ then-$151,971 yearly salaries in place, while reducing their annual benefits from $67,500 to $63,500, thus dropping their total annual compensation to $214,471.
Both Measure Q and Measure R passed, Measure R by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed. Measure Q achieved passage by a 67.28 percent to 32.72 percent margin, 344,226 votes in support to 157,369 against it. Because Measure Q garnered more votes than Measure R, the former went into effect rather than the latter. Instead of the supervisors seeing their $219,471 per year total compensation packages reduced to $60,000, they were instead cut back to $214,202. The board of supervisors at no point, including up to the present time, objected to or sought to interfere with the provisions of Measure Q.
This year, after the Red Brennan Group succeeded in qualifying what was subsequently designated as Measure K for the November 3 ballot, the board of supervisors sought to replicate the success it had in 2012 by again putting onto the ballot a substitute measure that dealt with the issue of the supervisors’ pay grade. At its July 14, 2020 meeting, the board of supervisors voted to place on the November 3 ballot what its members referred to as a charter reform measure, one which was ultimately designated as Measure J. Though there had been scant discussion of charter changes previously and no expression of a public consensus on what elements of the charter should be redressed, the office of county counsel virtually overnight delivered the language for the charter reform initiative, which included what board members claimed was the important reform of modernizing the charter’s language to eliminate what is now considered outdated and genderist references, such as the charter’s reference to the board’s designated leader as “chairman” and what “his” duties consist of. Further, since the current charter did not directly address the compensation the supervisors receive, their level of pay was deemed an important issue for the redraft. Without any previous discussion of an appropriate remuneration level, the office of county counsel, working from the premise that the supervisors’ current average annual salary of $163,000, further/add-on pay of roughly $17,000 and benefits of $77,000 for a total annual compensation of $257,000 is what the supervisors deserve, hit upon setting the supervisors’ salaries at 80 percent of the salary of a Superior Court judge and giving them benefits equal to county department heads. Thus, Measure J called for setting the supervisors total annual compensation at somewhere in the range of $257,000 to $287,000, depending upon the amount of further/add-on pay or familial health coverage benefits they are provided with. Measure J also spelled out that the three-term limitation imposed on the supervisors by Measure P meant that a supervisor could not serve as supervisor for three years in one district and then move to another district where he or she would be eligible to serve three more terms representing that district. In this way, Measure J reduced the total number of terms an individual might conceivably serve on the board from a maximum of 15 to three.
According to the final certified election results released by the San Bernardino County Registrar of Voters, Measure J passed, with 378,964 votes or 50.72 percent of the 747,188 votes cast supporting it and 368,224 or 49.28 percent opposed. In 2012, Measure Q, which had been placed on the ballot by the supervisors to thwart the drastic reduction in their salaries embodied in Red Brennan’s Measure R, received the greater number of votes and thus went into effect. This year, Measure J, which would have kept the supervisors’ generous salaries intact, received fewer votes than Measure K. Thus, according to the practice of resolving a conflict between the provisions of two measures simultaneously adopted by the voters by implementing the provisions of the winning measure that gets the most votes and disregarding the conflicting provisions of a winning measure that gets fewer votes, the board of supervisors is to see its members’ total annual compensation reduced to $60,000 going forward. In placing measures before the county’s voters, the board of supervisors has not hesitated in giving those voters an opportunity to set the pay grade for themselves in their capacity as county supervisors.
Fourthly, the contention by Hertz, Sutton and Sanders that Measure K violates the single subject limitation on measures runs head-on into the consideration that the county has on numerous occasions, as with 2006’s Measure P and this year’s Measure J, placed measures on the ballot that were in violation of the single subject limitation for measures. Measure P had multiple provisions, including raising the supervisors’ pay level and subjecting the supervisors to a limitation on the number of terms they can serve. The board of supervisors at no point, up to the present, contested the applicability or implementation of Measure P because it violated the single subject limitation.
Fifthly, Hertz, Sutton and Sanders maintain in their petition for a writ of mandate that Measure K violates the First and Fourteenth Amendments to the United States Constitution by putting into place a lifetime term limit provision for members of the county board of supervisors, even though both Measure P, placed on the ballot by the board of supervisors in 2006 and passed by the voters, and Measure J, placed on the ballot by the board of supervisors this year and passed by the voters, impose a lifetime term limit provision on the board of supervisors.
In these ways, to some it seemed that the filing of the petition for a writ of mandate was aimed less at the somewhat unrealistic goal of preventing Measure K from ever going into effect than it was being used to ensure that the provisions do not take immediate effect. There is law and precedent to establish that a measure that is applicable to elected officials only pertains to office holders elected after such a measure is passed. For example, the current dean of the board of supervisors is Josie Gonzales, who was first elected to the board in 2004. In 2006 Measure P, limiting supervisors to three terms in office, was passed by the county’s voters. Yet, Gonzales, at the conclusion of her first term, successfully ran for reelection in 2008, ran again in 2012 and ran once more in 2016. Gonzales’s tenure in office has now run to four terms. Her first term on the board, from 2004 to 2008, was not subject to Measure P, while from 2006 onward, she was subject to Measure P. In this way, the terms she was elected to in 2008, 2012 and 2016 represent the three terms she was entitled to hold, pursuant to voter approval, under Measure P.
By way of further illustration, Second District Supervisor Janice Rutherford, who was first elected in 2010 and reelected in 2014 and 2018, will be termed out in 2022 under the term limitation provision of Measure P. Since she was reelected in 2018 under the terms of Measure P, she is entitled, by most interpretations, to finish her current term and to receive the remuneration that was in place at the time she was reelected in 2018, meaning she is eligible, until leaving office, to receive her current total annual compensation of $265,738.17, which includes $166,150.75 in salary, $17,000.10 in other pay add-ons and benefits of $82,587.32. One interpretation of the term limitation provision of Measure K, however, is that Measure P has now been superseded, and Rutherford is no longer bound by Measure P. So, by one interpretation, Measure K has yet to apply to her, making her eligible to seek reelection in 2022 once more, though if she is successful she would have to take a cut from her current $265,738.17 in total annual compensation to $60,000.
Curt Hagman, who was first elected in 2014, reelected in 2018 and is currently receiving $254,373.11 in annual total compensation, including $160,746.94 in salary, $17,000.10 in add-on pay and $76,626.07 in benefits, is entitled, under the provisions of Measure P, to continue to receive $254,373.11 in annual total compensation for the remainder of this year, for 2021 and for most of 2022 until the current term to which he was elected in 2018 comes to an end in December of that year. Under Measure P and Measure K, Hagman can seek reelection in 2022. Under Measure K, if Hagman in fact runs for reelection in 2022 and is successful, upon his term commencing that December, he will have to take a salary cut to $50,000 annually and a benefit reduction to $10,000. Under both Measure P and Measure K, he will be termed out in 2026.
Dawn Rowe, who has been on the board of supervisors in an appointed capacity since 2018, along with Congressman Paul Cook and Rialto City Councilman Joe Baca, were all elected this year under the terms of Measure P, meaning each is entitled to a total annual compensation of around $240,000, consisting of a salary of $160,000, add-on pay of $15,000 to $20,000 and benefits ranging from $60,000 to $65,000 for the next four years. Beginning in 2024, each would then be subject to the provisions of Measure J, meaning they could seek reelection at that point but would be subject, if victorious, to seeing their salaries slashed to $50,000 annually and their benefits reduced to $19,000. If they indeed chose to run in 2024 and remained in office by being reelected, they would need to leave the board in 2028 as a consequence of the one-term limit under Measure K.
If the board of supervisors proves successful in its suit against its own clerk of the board, none of the Measure K limitations will apply.
“Measure K has been approved by more than two-thirds of San Bernardino County voters,” Red Brennan Group spokeswoman Natalie Zuk told the Sentinel. “Regardless, the San Bernardino County Supervisors, in an act of naked self-interest, are suing to keep the successful measure from going into effect. The measure, proposed by a local small business owner and sponsored by The Red Brennan Group, deals a blow to the concept of the ‘career politician.’ San Bernardino County voters have spoken clearly and in no uncertain terms. Citizens want to be represented by peers rather than a political elite. Local voters no longer support elected officials dedicated to protecting their own self-interests at the expense of their constituents. The incentives associated with the current model are amiss. Legislators are attracted to lucrative pay, pension benefits and perks that come with elected office. The result is the people’s representatives are at the whim of political party dynamics, special interest groups, corporations, and private individuals as they scrape to keep their hold on the power and perks of office. Measure K was designed specifically to overhaul the incentives to serve as a county supervisor. Rather than a quarter-million-dollar a year pay and benefit package, Measure K allows for a benefit package equal to the median household income in the county. The measure also provides for one four-year term to serve in office.”
Zuk continued, “This measure was placed on the ballot by 75,000 registered county voters. Measure J was placed on the ballot by five panicked supervisors desperate to protect their excessive pay and benefit packages. Touted as an effort to replace an ‘outdated’ charter containing sexist gender pronouns and dated workplace governance procedures, the measure was actually designed by county attorneys to protect supervisor compensation and consolidate power in the hands of the county bureaucracy. Measure J was barely approved, squeaking out just over 50 percent of the vote. With both of the two competing measures passing, Article II Section 10 of the California Constitution states, ‘If provisions of two or more measures approved at the same election conflict, the provisions of the measure receiving the highest number of affirmative votes shall prevail.’ Because Measure K has received significantly more votes than Measure J, and the two measures conflict, Measure K will be implemented while none of the provisions in Measure J will stand. In previous rulings, the Supreme Court of California stated, ‘If the measures propose alternative regulatory schemes, a fundamental conflict exists. In those circumstances, section 10(b) does not require or permit either the court or the agency charged with the responsibility of implementing the measure or measures to enforce any of the provisions of the measure which received the lesser affirmative vote.’”
Zuk said, “County Supervisors are blatantly attempting to subvert the expressed will of the people with respect to Measure K. Three days following the certification of the county election, the board of supervisors filed an injunction in an arrogant attempt to stop the implementation of Measure K. As of Friday, December 4, 2020, the board of supervisors had made no formal mention of the lawsuit on their website. This despite the fact that attorneys from The Sutton Law Firm, funded with taxpayers’ resources doled out by the board of supervisors, will be in court on Monday, December 7, seeking a temporary restraining order against the clerk of the board which would halt the implementation of Measure K. The lawsuit comes just days after the announcement of a payout in which the county granted $65 million in taxpayer money to multimillionaire Jeffrey Burum and the Colonies Partners. This is an example of the horrendous performance supervisors provided managing the county’s finances. In fact a butcher’s bill created by a runaway county budget meshed with cavalier management of the county pension fund has bankrupted the county. Rather than forcing the bureaucracy to live within its means, which is supposed to be job number one for elected representatives, the county’s elected officials have worked hand-in-glove with senior bureaucrats to fleece the county’s working-class residents. This sustained track record of abysmal performance is the reason Measure K was placed on the ballot. Elected supervisors should be partnering with the electorate to ensure the measure is implemented as approved by voters. Instead, San Benardino County’s elected officials continue a long history of partnering with public unions, developers, and political parties against the people’s interest.”
By Mark Gutglueck