By Mark Gutglueck
Measure K, the initiative passed by two-thirds of the county’s voters in November 2020 calling for a drastic overhaul of county government by reducing the total compensation of county supervisors and limiting them to a single four-year term, must be implemented, the California Court of Appeal for the Fourth District has tentatively ruled.
The primary upshot of the ruling, barring an unlikely change of heart on the part of the appellate court, is that the members of the board of supervisors will see their total annual compensation reduced from what at present is approximately $270,000 to $60,000.
The Court of Appeal has yet to set a date for final oral arguments as to whether it should finalize its reversal of a decision made by San Bernardino County Superior Court Judge Donald Alvarez in October 2021 that neither of the key provisions in the reform measure – the pay reduction as well as the single term limit – could be put into place.
Alvarez took up the matter after the board of supervisors sued its own employee, San Bernardino County Clerk of the Board of Supervisors Lynna Monell to prevent her from effectuating the passage of Measure K, which had been sponsored by the Red Brennan Group and then-Fifth Supervisorial District Candidate Nadia Renner.
According to a legal analysis of the appellate court’s tentative ruling, the five current members of the board of supervisors will continue to receive their current average annual total compensation of $263,466.95 – consisting of $174,884.83 in salary, $20,461.61 in other pay and $68,120.51 in benefits – for the remainder of their current terms.Thus, Second District Supervisor Janice Rutherford, who was originally elected to the board in 2010, reelected in 2014 and 2018 and is to serve until December, at which time she is to be termed out of office under both the previously applicable three-term and currently applicable one-term limit of her time in office, will see no change in her compensation. Similarly, First District Supervisor Paul Cook and Fifth District Supervisor Joe Baca, who were first elected to the board in 2020 and who will be termed out of office under the currently applicable one term limit of their time in office in December 2024, will see no change in their compensation until their terms end in two years-and-five months. Third District Supervisor Dawn Rowe, who was appointed to the board in December 2018 and elected in 2020, will see no change in her compensation until she is obliged to leave office in two years-and-five months. Fourth District Supervisor Curt Hagman, who was first elected to the board in 2014, reelected in 2018 and again last month, will continue to draw his current compensation until December, when his current term ends. Up in the air, at this point, is whether he will be allowed to serve as supervisor for the term he was elected to in June. Under the previously applicable three-term limit, he would be eligible to serve until December 2016. Pursuant to the Fourth District Court of Appeal’s tentative ruling, however, his right to serve beyond his current term is open to question. In the section of the ruling relating to whether Measure K could be construed to mean that its single-term term limit could be deemed applicable to those supervisors who were already in office in 2020 and those elected for the first time in 2020 election when Measure K passed, the appellate court states, “Measure K does not and cannot kick out of office those supervisors who were already serving a second or third term. That would indeed be retroactive application. However, it will bar them – just as it bars the new supervisors – from serving another term.”
The tentative ruling makes no direct reference to Hagman’s circumstance and does not explicitly state that he is to be enjoined from serving the term to which he was elected last month. Nevertheless, if he is indeed permitted to serve out what would be for him a third term on the board, his total annual compensation – including salary and benefits – is to be reduced to $60,000.
In last month’s election, five candidates vied to succeed Rutherford in the Second District. Since no single candidate managed to poll a majority of the vote, the two top vote-getters, former Fontana City Councilman Jesse Armendarez and Cucamonga Valley Water District Luis Cetina, are to face each other in a run-off in November. Under the Fourth District Court of Appeal’s ruling, the victor will be paid in accordance with remuneration specified in Measure K – $60,000 in salary and benefits – and will be restricted to a single term in office, running from December 2022 until December 2026.
The Fourth District Court of Appeal’s ruling marks the furthest leap forward for the Red Brennan Group, a band of government reform and accountability activists who have consistently been outmaneuvered by county officials who have effectively until now resisted the governmental system modifications they advocated.
Kieran “Red” Brennan had been 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 globe impressed on him the need to refine democracy at home.
In 2012, at the age 87, Brennan undertook what would be his last hurrah in years of intensive civil engagement when he headed an effort by a group of like-minded county residents in 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 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. In 2017, the Red Brennan Group revived the Measure R concept from 2012. At the direction of the county board of supervisors, the county’s stable of in-house lawyers, known as the office of county counsel, sued the initiatives’ proponents on behalf of the county, claiming the initiatives violated the California Constitution, the current legal authority of the supervisors, and the single subject rule for initiatives. In its lawsuit, the county contended it therefore should not be required to complete its ministerial duty of providing a ballot title and summary for the initiative proposals.
At that point, the Red Brennan Group postponed its efforts, consulting with legal authorities before proceeding.
Yet in the face of intense opposition by the board of supervisors, Nadia Renner, the Red Brennan Group’s endorsed candidate in the race for Fifth District supervisor in 2020, in conjunction with the Red Brennan Group, qualified another initiative for the November 2020 ballot that covered the same ground as that of Measure R, gathering 75,132 signatures of county voters in doing so. The proposed measure called for reducing the board members to part-time lawmakers, providing them with an annual salary and benefit package of $60,000 and limiting them to a single four-year term on the board. After those signatures and petitions were provided to the San Bernardino County Registrar of Voters in March 2020 and deemed to be sufficient to put an initiative, which was ultimately designated as Measure K, on the November 2020 ballot, the board of supervisors attempted to repeat what had occurred in 2012 by using its power as an elected body to place an alternative initiative on the ballot, one which was designated by the San Bernardino County Registrar of Voters as Measure J.
Measure J was billed as a reform measure that would adjust certain outdated language used in the county charter and also set the board members’ individual compensation packages at $290,000. Measure J further replicated an existing limitation of three four-year terms on supervisors.
It was the supervisors’ collective hope that just as the alternate reform measure that the supervisors had put on the ballot in 2012 had outperformed the measure sponsored by Red Brennan in that election, their measure in 2020, designated by the registrar of voters as Measure J, would likewise gather more support than Measure K, and thus keep the pay reductions in Measure K from going into effect.
As it turned out, however, 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.
Under state law, a conflict between the provisions of two measures simultaneously adopted by the voters is resolved 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. This principle was applied in 2012 with regard to the conflicting provisions of measures Q and R. After the November 2020 election had concluded, expectations were that Measure K’s provisions – consisting of limiting supervisors to a total annual compensation of $60,000 and a single four-year term – would by virtue of the greater number of votes it received trump Measure J’s provisions allowing a supervisor a $250,000 per year stipend including salary and benefits subject to a 3 percent per year cost of living adjusment and the option of serving three four-year terms, in accordance with the will of the voters in three separate elections.
Once the election results were certified, the board of supervisors, using taxpayer funds, contracted with three Los Angeles-based attorneys – Bradley Hertz, James Sutton and Nicholas Sanders – to take legal action in the form of a writ of mandate to block Measure K from going into effect. In their suit on behalf of the board of supervisors, Hertz, Sutton and Sanders did not sue the Red Brennan Group or Renner, but rather the supervisors’ own employee, San Bernardino County Clerk of the Board Lynna Monell. The legal action, a petition for a writ of mandate, alleged that Measure K is fatally flawed because it “violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative… [and] 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… [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 maintained Measure K violates what “the single subject rule” pertaining to voter initiatives and that “Measure K must not be implemented because it does not embrace a single subject.”
Hertz, Sutton and Sanders pressed Judge David Cohn, to whom the case had been assigned, to grant their motion for a temporary restraining order to halt the implementation of Measure K while the petition for a writ of mandate was being litigated.
The Red Brennan Group and Renner, Measure K’s official proponent, represented by attorney Aaron Burden, submitted a motion to intervene as a defendant in the case. Judge Cohn, initially, held the position that neither Burden nor Renner nor the Red Brennan Group were parties involved in the matter, as the board of supervisors’ suit is against the clerk of the board, and as such they did not have status to involve themselves in the proceedings. The petition for a writ of mandate requested that the court order Monell “not to take any actions that would cause the implementation of Measure K’s provisions.”
Burden on behalf of the Red Brennan Group asserted that upon the election results being certified, voter-mandated Measure K became a county ordinance, and, accordingly, the San Bernardino County Office of County Counsel, the county’s in-house stable of lawyers then headed by County Counsel Michelle Blakemore, was obligated to defend both Measure K, on behalf of the voters who passed it, and Monell, as the clerk of the board and a county employee, who was supposed to make sure it was actuated. Blakemore and the office of county counsel, however, did not with alacrity undertake to defend either in court filings or in open court discussion.
The result, the Red Brennan Group maintained, was that “an initiative approved by over 66% of county voters is being ignored by the public servants sworn to protect the voters’ interests.”
On December 14, 2020, Judge Cohn, in accordance with settled law and the Red Brennan Group’s status as the proponent of Measure K, approved the Red Brennan Group’s motion to intervene.
Thereupon, Burden, on behalf of the Renner and the Red Brennan Group, immediately followed with a preemptory challenge of Judge Cohn, based on the group’s belief it would not be able to have a fair and impartial trial or hearing before him. The matter was sent to Judge Alvarez for his consideration.
After the passage of more than nine months and the consideration of a multitude of briefings, Judge Alvarez in October 2021 concluded that Measure K should not be implemented.
In his analysis of the county’s case against Measure K, Alvarez noted that board was contesting the two major provisions in Measure K, those being the salary/benefits/total compensation limitation and the single term limit on holding the position of county supervisor.
While holding that the compensation limit contain in Measure K is constitutional, Judge Alvarez ruled that the measure’s one-term limit is unconstitutional. Judge Alvarez further found that Measure K is not severable, meaning that it could not be applied in part but had to be enforced in all of its aspects or not at all. Since one of its provisions could not be enforced because it was unconstitutional, Judge Alvarez said, the measure in its entirety must be struck down. Finally, Judge Alvarez ruled that Measure K did not apply to the new supervisors, i.e., those elected in November 2020 election when Measure K was on the ballot.
In response to Alvarez’s ruling, Renner and the Red Brennan Group appealed, contending that the one-term limit is constitutional, that even if the court ultimately found that the one-term limit was not constitutional, the compensation limit contained in Measure K is severable and could be enforce, that Measure K applies to the newly elected supervisors and that Judge Alvarez erred by enjoining the certification, authentication, recordation, and filing of Measure K.
In response to the Renner/Red Brennan Group appeal, the San Bernardino County Board of Supervisors filed a cross-appeal. The Office of County Counsel and Hertz, Sutton and Sanders
contended that the supervisors’ compensation cannot be set by initiative, because state law
delegates supervisors’ compensation exclusively to boards of supervisors, the compensation limit violates minimum wage laws or that, alternatively, if it effectively forces supervisors to work part-time, it impairs essential governmental functions and that the compensation limit improperly acts as a referendum on San Bernardino County Code section 13.0614, which provides for supervisors’
Penultimately, according to Fourth District Court of Appeal, it has come to the conclusion that Judge Alvarez erred in striking down Measure K. Unless convincing arguments are made to convince the judges comprising the Fourth District Court of Appeal, those judges collectively said, “We will hold that the one-term limit is constitutional. We will further hold that
supervisors’ compensation can be set by initiative. The board of supervisors has not shown that the
compensation limit violates minimum wage laws. The board also has not shown that the
compensation limit conflicts with section 13.0614; even assuming it does, the voters can
amend or abrogate an ordinance not only by referendum, but also by initiative. Because
both the one-term limit and the compensation limit are valid, we need not decide whether
Measure K is severable. As to whether Measure K applies to the new supervisors, we
reach a split decision: The one-term limit applies, but the compensation limit does not.”
“We are still trying to digest this tentative decision by the Appeal Court on Measure K. But it looks like a very solid win for the people of San Bernardino County,” said Red Brennan Group Spokesman Tom Murphy.
The County is evaluating what the next steps might be to protect its ability to effectively serve the public,” said San Bernardino County Spokesman David Wert. “The board has an obligation to ensure something that would have a profound impact on public safety and service undergoes thorough legal review.”
Wert said the public should not lose sight of the consideration that San Bernardino County is “the largest county in the United States, and the fifth largest county by population in California” and that the county’s “supervisors currently work full-time to ensure appropriate focus is provided to govern a large and complex organization. Measure K raises serious concerns as to how part-time supervisors would be able to ensure services are delivered to our residents. San Bernardino County will continue to carry out its public service mission without distraction or delay.”