By Mark Gutglueck
As what is arguably the most dynamic independent public interest group in San Bernardino County, the Red Brennan Group this week scored what was by some counts its sixth major victory for the hearts and minds of the 2.2 million people that live in the county.
Nevertheless, and despite strides other entities involved in public policy advocacy can only marvel at, the coalition once again finds itself on the verge of being outmaneuvered by the political and legal establishment it is up against, such that all of the group’s efforts involving the expenditure of hundreds of thousands of dollars and the investment of thousands of man-hours and woman-hours toward achieving its goal of reform are likely to come to naught.
On Tuesday, the county’s voters by a comfortable margin gave approval to Measure Z, which called for the rescission of the San Bernardino County Board of Supervisors’ 2018 move to expand the applicability of Fire Protection District Service Zone Five.

Fire Protection District Service Zone Five, known by its acronym FP-5, was originally formed in 2006, as a construct for the county fire department to provide the desert communities of Silverlakes and Helendale with firefighting and emergency medical service. The creation of FP-5 carried with it the annexation of Silverlakes and Helendale into a fire service assessment zone, which required that landowners within those two communities’ confines pay yearly assessments to defray the cost of the fire department’s operations therein.
Between 2015 and 2017, four of the county’s incorporated municipalities – San Bernardino, Twentynine Palms, Needles and Upland – at the direction of their respective city councils, closed out their traditional municipal or local fire departments and had the entirety of their city limits annexed into FP-5, entailing each parcel owner in those jurisdictions paying an annual assessment of approximately $150 to have the county fire department provide those communities, under the auspices of FP-5, firefighting and emergency medical service. In each of those four cases, the existing local or municipal fire departments were shuttered.
In 2018, a proposal to expand FP-5 to cover 19,073 square miles of unincorporated land in the county along with the cities of San Bernardino, Twentynine Palms, Needles and Upland was made and ultimately approved by a 3-to-2 vote of the board of supervisors in October of that year. As in the cases of San Bernardino, Twentynine Palms, Needles and Upland, residents were not given the opportunity to vote on approving the  annexation of their community into the assessment zone/service zone. Those transitions were procedurally effectuated by the conducting of a so-called protest process. During a one month period, those landowners or residents to be annexed into the annexation zone were permitted to lodge a protest against the annexation. If 25 percent of the residents or voters or landowners in the areas to be annexed had lodged a written protest with the government, then a vote on the formation would have been held. If fifty percent or more had lodged a written protest, then the annexation would have been nixed outright. Since fewer than two percent of the citizenry offered any protest, the 2018 annexation of the entirety of the county’s unincorporated area into FP-5 proceeded without a hitch. Essentially, any resident, landowner or registered voter in one of the districts to be annexed who did not lodge a protest in effect casted a vote in favor of the zone expansion.
At that point, the Red Brennan Group inserted itself into the circumstance, asserting that the county’s blanket annexation of the county’s remaining unincorporated county areas other than Helendale and Silverlakes into the FP-5 Assessment District using the protest process was not a vote and was thus unconstitutional, violating that element of the California Constitution that was enacted with the voters’ approval of Proposition 218, which requires that any new special tax must be approved by a vote of those who must pay it. The Red Brennan Group set about gathering signatures to place an initiative on the ballot that would ask the voters whether the FP-5 assessment should be applied to the entirety of the county’s unincorporated areas.
In an attempt to derail the Red Brennan Group’s effort, the county government’s legal representatives in the summer of 2019 imposed on the repeal petitioners a requirement that they obtain more than three times the number of signatures set by California’s Constitution as the threshold requirement to force a vote on the matter. The county now acknowledges it misapplied the California Government Code in the summer of 2019 when it told the Red Brennan Group that it would need to gather the signatures of ten percent of the 261,831 voters living in the county’s unincorporated areas to qualify the ballot petition they were requesting, i.e., 26,184 signatures. In actuality, there was a signature gathering threshold that under the California Constitution should have been applied, one which would have required far fewer signatures. That threshold was ten percent of the voters who had participated in the most recent countywide vote, that being the November 2018 election, when 546,041 voters throughout San Bernardino County, including ones living within incorporated cities and towns as well as within the county’s unincorporated areas, had gone to the polls or sent in mail ballots. Of those 546,041 voters casting votes in November 2018, 472,515 of them lived in the county’s cities and incorporated towns. In the county’s unincorporated communities, where Fire Protection Zone 5 was to be overlayed, 73,526 voters had taken part in the November 2018 election.
Thus, instead of the Red Brennan Group being told it needed to gather the valid signatures of 27,303 residents to qualify the measure, it should have been held to the standard of gathering 7,353 signatures. Ultimately, after a substantial degree of going back and forth between the Red Brennan Group’s attorneys, San Bernardino County’s office of county counsel and the Howard Jarvis Taxpayers Association, county counsel in February 2020 acknowledged the analysis provided by the Red Brennan Groups’ legal team was correct and 10 percent of the of the voters who fell within the confines of where the FP-5 District was applied who voted in the last gubernatorial election was the correct standard.
Ultimately, after it had gone to tremendous expense imposed upon it by the county’s legal team’s application of a standard it knew ahead of time it was not legal to apply, the Red Brennan Group qualified the measure, which was designated as Measure U, which called for the repeal of the FP-5 assessment from everywhere it was applied other than Helendale and Silverlakes, for the November 2020 ballot.
That same 2020 election season, the Red Brennan Group undertook and achieved what was probably – before it was short-circuited by governmental intervention – its most far-reaching reform démarche. In doing so, it harkened back to an epic undertaking from eight years previously.
In 2012, what was then the forerunner of the Red Brennan Group, a collection of residents led by Kiernan “Red” Brennan, had sought political reform in San Bernardino County by sponsoring an initiative, which was designated in that year’s balloting as Measure R, which called for downscaling the five individual San Bernardino County supervisors’ then-yearly $151,971 salaries and $67,500 in benefits to $50,000 in salary and $10,000 in benefits annually, a drop in total compensation from $219,471 per year to $60,000.
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 what they said was a “substitute reform” initiative onto the ballot. That initiative, Measure Q, called for instituting “reform” by allowing the supervisors’ individual salaries of $151,971 to remain in place, while reducing their annual benefits then valued at $67,500 by $5,000 to $62,500. Because of their status as supervisors, they did not need to gather any signatures to put the Measure Q “reform” initiative reducing their total annual compensation to $214,471 on the ballot.
Adopting the Measure R advocates’ calls for reform, the supervisors and their supporters, as the proponents of Measure Q, did not in any overt fashion campaign against Measure R, but rather expounded in generic terms what they represented as Measure Q’s “sensible” and “moderate” approach for achieving compensation reduction for the supervisors.
In the November 2012 election, Measure R passed by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed. Measure Q passed as well, 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.
In 2013, Brennan, a U.S. Navy submariner during World War II whose brushes with death as a young man in the service of his country while seeking to export democracy around the world impressed on him the need to refine democracy at home and led to his intensive civil engagement, died. Those who had been involved in his committed government reform movement redoubled their efforts, formalizing the founding of a nonprofit entity named after him. For the 2020 election, in addition to the successful move to place Measure U on the ballot, the group revived the Measure R concept from 2012 and, again facing intense opposition by the board of supervisors, qualified an initiative that covered the same ground as that of Measure R for the November 2020 ballot, along with a further provision limiting a member of the board of supervisors to a single term.
After once more forcing the Red Brennan Group to clear several both unrealistically high and legally indefensible hurdles to qualify that initiative for the ballot, which was designated Measure Z, the county board of supervisors and the county’s in-house team of lawyers, as it had in 2012, used the board of supervisors’ authority to again put on the ballot its own “reform” measure, which was designated as Measure J.
Measure K’s provisions consisted of limiting supervisors to a total annual compensation – including salary and all benefits – of $60,000 and a single four-year term. According to the Red Brennan Group, $60,000 matched the salary and benefit package paid to an average resident of the county and limiting supervisors to a single term would ultimately lead to “citizen legislators” rather than career politicians monopolizing county government’s top decision-making positions. Moreover, the Red Brennan Group reasoned, the dual reduction in salary/benefits and limitation to a single term would eliminate virtually entirely the phenomenon of supervisors collecting hundreds of thousands of dollars in political donations to repeatedly seek reelection, donations which have been provided, historically, by individuals and companies with business, investments, projects and franchises involving the county or impacted by county governmental decisions, representing conflicts of interest that have ushered corruption into the political process whereby members of the board of supervisors have consistently made decisions that are more beneficial to their donors than to the constituents they serve.
The county board of supervisors pushed Measure J, which provided for allowing the members of the board of supervisors a $270,000 per year stipend including salary and benefits and the option of serving three four-year terms, subject to the will of the voters in three separate elections.
As it turned out, the county supervisors’ ploy that had worked in 2012 of offering an alternative “reform” measure to what had been proposed to the voters did not work in 2020. Measure K did much better at the polls than did Measure J. 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.
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.
Meanwhile, Measure U, calling for shrinking FP-5 back to its original proportion in the county’s unincorporated areas to apply merely to Helendale and Silverlakes, was also considered by the voters. In the run-up to the election, the union representing the county’s firefighters campaigned vigorously, maintaining that withdrawing the funding that the expanded FP-5’s fire service area represented would severely compromise public safety throughout the county’s rural areas. The public found that dire warning convincing enough to result in Measure U failing, with 109,483 county residents or 47.97 percent of those participating supporting it and 118,772 or 52.03 percent opposing it.
In the immediate aftermath of the 2020 election, the county governmental establishment accepted the public’s judgment with regard to Measure U.
As for measures J and K, however, that was a different matter. Under the California Government Code and the California Elections Code, if two measures are on the ballot together which are in conflict and both pass, the one that passes with the greater number of votes takes precedence. That was the principle that was applied in 2012, when Measure R, with its provision to pay members of the board of supervisors a total annual compensation of $60,000, and Measure Q, calling for the supervisors to receive a total of $214,471 in yearly combined salary and benefits, both passed. Measure Q, which received 17,287 more votes than Measure R, was made operative. Playing by the same rules, it seemed that following the 2020 election, Measure K, which called for a $60,000 salary and benefit package for the supervisors and received 137,220 more votes than Measure J which called for paying the supervisors some $270,000 per year all told, would go into effect.
Members of the board of supervisors, however, who were not prepared to accept a $210,000 per year compensation reduction, went to court to dispute not only the outcome of Measure K, but its provisions as well. Instead of using the county’s staff attorneys – the office of county counsel – to take that legal action, it hired outside legal representatives in the form of the Sutton Law Firm, and, in particular three of the firm’s attorneys – Bradley Hertz, James Sutton and Nicholas Sanders – to represent them.
Through the Sutton Law Firm, the board of supervisors sued their own employee – San Bernardino County Clerk of the Board Lynna Monell – to prevent her from certifying as applicable the election results and implementing the provisions of Measure K. In doing so, Hertz, Sutton and Sanders made a series of assertions, including that Measure K is “fatally flawed,” “violates [the] California Constitution by seeking to set supervisor compensation via citizen initiative…” “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…” “[and its] term limit provision for members of the county board of supervisors violates the First and Fourteenth Amendments to the United States Constitution [by] impermissibly infring[ing] on voters’ and incumbents’ First and Fourteenth Amendment rights.” Additionally, the writ of mandate drawn up by Hertz, Sutton and Sanders maintained Measure K violates “the single subject rule” pertaining to voter initiatives and that “Measure K must not be implemented because it does not embrace a single subject.”
In making that final assertion, Hertz, Sutton and Sanders, ignored that Measure J, which they maintained should be operative rather than Measure K, likewise “embraced” more than a single subject.
Ultimately, Judge Donald Alvarez in a ruling issued on August 31, 2021, while rejecting much of what Hertz, Sutton and Sanders had maintained in their suit on behalf of the supervisors, found that Measure K cannot be implemented because limiting members of the board of supervisors to four years on the dais “violates the 1st and 14th amendments of the U.S. Constitution.”
The Red Brennan Group has appealed Judge Alvarez’s ruling. As a consequence of the legal challenge to it, the provisions of Measure K have never been in effect.
Despite the thicket of resistance that the Red Brennan Group has had to fight its way through with virtually every reform proposal it has made, it has not given up on those efforts, showing resolve to subject governance in San Bernardino County to scrutiny and appeal to the region’s citizenry to consider revamping those elements of the way both the county and its cities operate where such changes seem appropriate.
The Red Brennan Group’s leadership, which is convinced that the county had made misrepresentations about the necessity and validity of the FP-5 expansion and sincerely believes that the county board of supervisors’ straight out violated the basic tenant in the California Constitution granting taxpayers the right to ratify by a majority vote any taxes they are going to pay with its use of a protest process to expand the boundaries of the FP-5 assessment zone to cover all of the county’s unincorporated areas, further believes that the San Bernardino County Firefighters Association’s assertions made during its 2020 campaign in opposition to Measure U that the county does not have the means to continue to provide fire service to its remote rural areas as it has historically done was disingenuous. In previous years, the Red Brennan Group notes, based upon the revenue the county receives from landowners in those area in the form of unfettered ad valorem property tax, the county met its obligation to provide all types of basic services, including fire protection. While property owners in the unincorporated county areas are now being strapped with a FP-5 assessment they never approved and never before were obliged to pay, according to the Red Brennan Group, the county is accumulating substantial financial reserves defrayed by an illegal form of double taxation. The reform collective pressed forward with an effort to qualify once more an initiative for the ballot challenging the FP-5 expansion, and indeed succeeded in gathering a sufficient number of signatures to put another version of Measure U on the ballot this year, one designated as Measure Z, after the registrar of voters certified that enough valid signatures had been affixed to the petitions seeking the initiative. The county and its fire district/fire department sued the county registrar of voters to prevent it from including Measure Z on the ballot.
In that lawsuit, the county/fire district/fire department asserted that the petition used by the Red Brennan Group was factually incorrect and had misled voters who signed it. The Red Brennan’s contention that the tax is unconstitutional was false, the county maintains, since in previous legal sparring over FP-5, San Bernardino Superior Court Judge Donald Alvarez made specific references to court precedent in other jurisdictions in California whereby the language in California’s Constitution requiring a two-thirds vote on general or special taxes was held to not apply in circumstances involving annexations into previously existing assessment districts, as is the case with what San Bernardino County did with FP-5, the county claimed.
Judge David Cohn, who considered the case, rejected the Red Brennan Group’s contention that the will of the requisite number of voters who had signed the petition had to be complied with, and he ruled in favor of the fire district. On March 29, Cohn made a finding that the petition misrepresented the fire tax as unconstitutional. The Red Brennan Group disputed that and filed a petition to a state appeals court. The appeals court, seeing that there was an April 1 deadline for printing the June 7 ballots, agreed to hear the matter and ordered that the ballots be printed with Measure Z on it.
The county pushed forward with its challenge of Measure Z. On May 31, after the appeals court denied the petition from the Red Brennan Group and lifted its earlier stay, Judge Cohn ruled that his judgment that Judge Alvarez’s ruling that FP-5 is constitutional should be upheld was consistent with the law and case law. Thus, Judge Cohn ruled, even if the voters on June 7 passed Measure Z, the rescission of FP-5’s applicability to all other unincorporated areas outside of Silverlakes and Helendale will not stand.
On June 7, the county’s voters indeed passed Measure Z. As of today, Friday, June 10, the registrar of voters’ tally of the Measure Z results show 27,554 votes or 58.69 percent in favor of it and 19,395 or 42.31 percent opposed to it.
Judge Cohn’s ruling will not necessarily prove the last word on whether the FP-5 assessment is applied to the entirety of unincorporated San Bernardino County, according to the Red Brennan Group.
“If current returns hold, voters have enthusiastically opted to repeal the Fire Protection Service Zone Five special tax,” the Red Brennan Group said in a statement. “Election returns to date indicate the “Yes” or repeal votes for Measure Z are nearly 60 percent while the “No” votes trail at 40 percent. Local headlines have trumpeted the demise of Measure Z at the hands of Superior Court Judge David Cohn. However, an appeal of Judge Cohn’s decision was in place prior to the election. Final passage of Measure Z is still an entirely viable scenario.”
Consistently, while Kiernan Brennan was yet alive and in the time that the group now functioning in his memory have been pushing for public agency reform in San Bernardino, those advocates have time and again found themselves, as a consequence of their advocacy, at odds with the expense of government and the seeming nonchalance by which government officials confer governmental generosity upon themselves through the application of their authority. Six times – in passing Measure R in 2012, in qualifying Measure K in 2020 while being held to a seemingly impossibly high and unconstitutional signature-gathering standard, in qualifying Measure U for the ballot the same year while fighting the county’s similarly unlawful signature-gathering requirement, in achieving passage of Measure K, in getting Measure Z on the ballot in face of the county’s resistance and Judge Cohn’s ruling and in achieving the voters’ passage of Measure Z – the Red Brennan Group has used the citizen initiative process to further its reform agenda, only to see the forces of the government thwart its accomplishments.
Few entities or individuals, or perhaps none at all, have equaled or surpassed the Red Brennan Group in earning the enmity of the political establishment in San Bernardino County.
With the Measure R effort a decade ago, Kiernan Brennan alarmed the members of the board of supervisors, as it was then composed and which at that time had but a single member who is on that panel today, over the prospect that their own financial interest might be impacted by the reform he and his cohorts were seeking. Today, the board, with four different members than were serving in 2012, is as fiercely resistant to seeing its members’ personal financial circumstances affected by reform.
In 2020, when the board of supervisors sued its own clerk to prevent the actuation of Measure K, the Red Brennan Group leapt into the breach, asking the court to take stock of the consideration that legal action the board was taking was against an individual answerable to the board – its own secretary and clerk – who would not be likely to resist with any intensity the board’s interpretation of the law and the California Constitution. The Red Brennan Group’s attorney, Aaron Burden, made a motion before the court that the Red Brennan Group be granted status, as the sponsor of Measure K, to intervene and participate in the lawsuit the county board of supervisors was pursuing in the effort to overturn Measure K. Also seeking to intervene and oppose the board of supervisors in preventing Measure K from being implemented was the Inland Oversight Committee, a separate group of citizens represented by attorney Cory Briggs.
Judge David Cohn, who heard the case, initially, held that neither Burden nor Briggs nor the Red Brennan Group nor the Inland Oversight Committee were parties involved in the matter, as the board of supervisors’ suit was filed against the clerk of the board, and as such they as outsiders did not have status to involve themselves in the proceedings.
After nearly two weeks of consideration, Judge Cohn, in accordance with settled law, relented and approved the Red Brennan Group’s motion to intervene, though he ruled the Inland Oversight Committee had no standing in the matter.
Immediately upon Cohn granting the Red Brennan Group status to intervene, Burden made a preemptory challenge of Judge Cohn, based on the Red Brennan Group’s belief it would not be able to have a fair and impartial trial or hearing before him. The matter was then sent to Judge Alvarez for his consideration.
The Red Brennan Group’s action in challenging Judge Cohn, based upon whatever rationale Burden and the organization’s leadership had, whether it was valid or invalid or for whatever tactical reasons they possessed, was ultimately a strategic faux pas of the first magnitude. Having already established itself as pursuing an agenda contrary to that of the county’s political establishment, the Red Brennan Group’s suggestion by its challenge that Judge Cohn was incapable of dealing with the issues the group was raising fairly and squarely was taken not only as an affront by Judge Cohn but by the remainder of the Brethren on the San Bernardino County Superior Court bench.
As the champion of San Bernardino County’s common men and common women, the Red Brennan Group long ago assumed a stance out of step with the ethos of rank and privilege that comes with the territory of serving as a so-called “public servant” in San Bernardino County, a station which by its very definition paradoxically place such “servants” above their “masters,” the masters being the average citizens whom the system of governance was originally intended to serve. In San Bernardino County, the servants have been invested with an authority that can be defied only at one’s peril. Burning whatever bridge the group might have had with the ultimate arbiters of and determiners of the social pecking order in the county, no matter how tenuous that link might have been, did not redound in any way to the Red Brennan Group’s benefit. Rather, Judge Alvarez, at some level ultimately to the vindication of his colleague Judge Cohn, entered a decision last year that has so far prevented the Red Brennan Group from taking possession of the victory it scored with the passage of Measure K by a supermajority of San Bernardino County’s voters.
The Red Brennan Group has appealed Judge Alvarez’s decision, and the appellate court has yet to make its decision on whether the voters’ call for restoring the members of the board of supervisors to the status of citizen legislators is one that should be heeded.
Most recently, when the board of supervisors challenged the Red Brennan Group’s successful effort to put Measure Z on this week’s ballot, the San Bernardino County Superior Court’s executive echelon routed the case to the courtroom of Judge Cohn, with whom, as a consequence of its December 2020 challenge of his fairness, it was automatically off on the wrong foot.
Such is the fate of those who challenge what they consider tyranny, at least in San Bernardino County.
Tom Murphy, a spokesman for the Red Brennan Group said, “Despite news headlines to the contrary, Measure Z remains very much alive both from a political and legal standpoint. From the political perspective, it is obvious district voters see the special tax exactly for what it is – a scheme concocted by senior county bureaucrats to end run voter-enacted limits set by Propositions 13 and 218. From the legal perspective, the proponents’ attorney appealed Judge Cohn’s flawed decision the moment it was released. The matter is now in the hands of California’s 4th District Court of Appeal. If Judge Cohn’s decision is overturned, and it should be, Measure Z will be enacted and voters freed from this unjust tax.”