This week, the proponents of a reform measure passed overwhelmingly by voters in November made an appeal to the members of the county board of supervisors to desist in their effort to thwart the will of the county residents who approved the ballot initiative.
Measure K called for reducing the supervisors’ nearly $300,000 yearly compensation packages and was given approval by more than twice the number of the county’s voters who opposed it. Now, as the county’s ultimate decision-making body whose generous salaries and benefits are being threatened by that reform measure, the supervisors have taken legal action to block the initiative from taking effect.
The Red Brennan Group last year qualified Measure K for the November 2020 ballot. Measure K called for reducing the members of the San Bernardino County Board of Supervisors to part time status, setting their combined annual compensation at $60,000 per year, consisting of $50,000 in salary and $10,000 in benefits, and limiting them to one four-year term in office.
The Red Brennan Group, formed and named in honor of the late government reform activist Kiernan Brennan, asserted that the $170,000 in salaries the supervisors receive augmented by as much as $120,000 in benefits and supplementary or add-on pay elevates the board members to a social and financial status that puts them out of step with the vast majority of the county citizens they represent, and further leaves the supervisors so determined to hang onto their lucrative positions that they are willing to take in hundreds of thousands of dollars from political donors with business before the county so they can conduct aggressive campaigns to convince the voters to keep them in office. In return for those donations, the Red Brennan Group maintains, the supervisors over the years have demonstrated a willingness to do favors for those donors by approving their development projects or approving their contracts or franchises with the county in a way that is beneficial to the donors but detrimental to the constituents the supervisors represent.
Measure K, the Red Brennan Group maintains, by substantially reducing the pay the supervisors are to receive, would leave them less desperate to remain in office and less vulnerable to being influenced by deep-pocketed interests willing to provide them with money to remain in office. Moreover, reducing the county’s ruling class’s pay to a level in line with the average amount of money made by county residents would make the county’s political leaders sensitive to the reality the average person must deal with, the measure’s sponsors believe. The measure’s one-term limit would doubly ensure that the supervisors would not be beholden to those seeking to corrupt them through offering them political money, the Red Brennan Group asserts, since the supervisors in office would not be in the position of having to raise money to stay in office.
Last spring, faced with the consideration that the Red Brennan Group had gathered the signatures of 75,132 county voters to qualify Measure K for the November ballot, the supervisors detailed the county’s senior staff members and the county’s stable of in-house attorneys, known as the office of county counsel, to see if there was some procedural or legal grounds to keep the pay reduction and term limit measure from going before the county’s voters. When that gambit came up empty, they speedily cobbled together what they called a county charter reform measure of their own which called for setting their pay at a level which would allow them to continue to make no less than $240,000 per year in total compensation and as much as $310,000 in total compensation, and which solidified the already existing three term limit imposed on the supervisors. The supervisors needed to gather no signatures to qualify their initiative for a vote, and were able to use their own authority to place it on the ballot. That measure was dubbed Measure J, and put on the November ballot above Measure K, which was a ploy to have the voters pass Measure J instead of Measure K, as historic voting patterns show that a measure or candidate that appears higher on the ballot is statistically more likely to prevail or pass.
When the vote was held on November 3 in conjunction with the 2020 General Presidential Election, Measure K passed overwhelmingly, with 516,184 or 66.84 percent of the 772,282 voters participating supporting it, and 256,098 voters or 33.16 percent opposed.
Simultaneously Measure J passed as well, but by a far thinner margin, 378,964 votes or 50.72 percent to 368,224 or 49.28 percent.
Because Measure K had garnered more votes and passed by a greater percentage, the elements in it that were in conflict with Measure J, namely the reduction of the supervisors’ individual total compensation to $60,000 rather than the roughly $280,000 on average they would be permitted under Measure J and the reduction of the number of terms the supervisors could serve from three to one, the compensation level and term reductions in Measure K were to go into effect.
The board of supervisors, bypassing the office of county counsel, hired the Los Angeles-based Sutton Law Firm and three of its attorneys, Bradley Hertz, James Sutton and Nicholas Sanders, who on December 2, 2020 filed on the supervisors’ behalf a petition for a writ of mandate naming the supervisors’ own employee, San Bernardino County Clerk of the Board of Supervisors Lynna Monell, as a defendant, asking the court to order Monell not to take any action that would put Measure K into effect.
Though the Red Brennan Group was not named in the petition, the suit brought by the board of supervisors named 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.
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… fatal flaws, which make it unconstitutional, legally invalid, and/or otherwise unenforceable.”
The suit maintains that throughout California, only county boards of supervisors, and not the voters via the initiative process, can set the level of supervisorial pay; that Measure K’s single lifetime term limit provision violates the First and Fourteenth Amendments to the United States Constitution; that Measure K illegally intruded on matters exclusively delegated to the board of supervisors; that Measure K violated the single subject rule for ballot measures; that Measure K inhibits or impairs essential government functions; that Measure K violates California’s prohibition on retroactive term limits; that Measure K illegally adjusts sitting officials’ salaries; and that Measure K wrongly combined a term limit provision with a compensation provision.
In addition to seeking from the court an order preventing Monnell from taking any action that would implement Measure K’s provisions, the petition for a writ of mandate seeks a judicial declaration that Measure K is invalid and unenforceable or, in the alternative if the court determines Measure K is valid and enforceable, a declaration the measure’s provisions do not take effect until 2022 at the earliest. The petition further seeks that “this court award petitioner [i.e., the board of supervisors] the costs of this proceeding,” but does not make clear whether it is Monell or the Red Brennan Group who should bear the cost of paying the Sutton Law Firm as well as Hertz, Sutton and Sanders their legal fees.
This week, at the board of supervisors meeting on Tuesday, February 9, Tom Murphy, one of the principals in the Red Brennan Group addressed the supervisors. “The Red Brennan Group has been concerned about the growing size scope and performance of San Bernardino County government,” Murphy said, noting that Measure K had delved head on into “supervisor compensation and term limits. On the strength of 70,000 signatures Measure K was presented to county voters and approved by a supermajority of those voters. Measure K with its limit of one term and cap compensation was the only option for reform.”
Rhetorically, Murphy asked, “How did this board respond to the success of Measure K?” Answering, he said, “Rather than acknowledge the supermajority vote and take a leadership role to implement Measure K, this board chose to go to [court], effectively using the taxpayers’ resources against them. This is both bad leadership and bad politics from the perspective of the voters. This board is simply rubberstamping the direction given to them by county bureaucrats.”
Chad Keel, another Red Brennan Group member, told the supervisors, “On the strength of just five politicians’ signatures, Measure J was placed on the last November’s ballot to compete with Measure K. It lost by a huge margin and none of this measure is valid and your attorneys know this. Continuing to pay yourselves in accordance with Measure J amounts to theft of funds belonging to the citizens of this county.”
Keel said, “We invite you to reset your goals in moving forward, stopping the county’s continued abuse of the legal system to stop the expressed will of the county voters and stopping the unconstrained and overexpanding growth in the size of compensation of the county bureaucracy.”
Natalie Zuk, who functions as the Red Brennan Group’s chief spokesperson, said, “I am here on behalf of the 516,000 county voters who voted in favor of Measure K and want to see it through. The Red Brennan Group will work with anyone for the benefit of this county in good faith, but you can expect an absence of a showing of good faith and cooperation from yourselves. We invite you to vigorously defend Measure K on behalf of the 66 percent of county voters who approved this measure. In accordance with the California Elections Code, Measure K won. Therefore Measure J should have no effect, and we will aggressively defend that position in court.”
Zuk told the board, “The Red Brennan Group will support any candidates for the 2022 county supervisors election willing to serve in accordance with the terms set forth under Measure K and to forswear contributions from special interests in an effort to build trust in the political system within the county shown by actions rather words. We seek to deliver the best government to the county citizens for no more than the true cost of providing that product, with the leftover balance being used creatively to benefit this county’s citizens rather than its governing elite.”
Because Murphy, Keel and Zuk were addressing the board during its open citizen comment forum and the subject of Measure K was not on the board’s agenda, its members present in the county board chamber – Fourth District Supervisor and Board Chairman Curt Hagman, Second District Supervisor Janice Rutherford and Fifth District Supervisor Joe Baca, Jr. – and the two other members of the board participating remotely from their respective locations in the desert region of the county – First District Supervisor Paul Cook and Third District Supervisor Dawn Rowe – were not at liberty to respond.
The lawsuit is being litigated in the courtroom of San Bernardino County Superior Court Judge Donald Alvarez.
-Mark Gutglueck