It does not appear that the board of supervisors will be able to meet the daunting gamut of requirements and deadlines to include the race to replace the late County Assessor Bob Dutton on the November 8 ballot and save the county’s taxpayers the roughly $3 million it will cost to hold a special election to fill that now empty position from January 2023 until January 2027.
Quietly and privately, because no one wants to create a spectacle of bad-mouthing a dead man, county officials lay blame for the situation on Dutton, who died on July 23, after seeking and achieving reelection earlier this year despite knowing late last year that he had terminal prostate cancer. There is a tremendous economy of scale in holding consolidated elections, which in California over the last 40 years have been concentrated on the days of national elections corresponding to the presidential primary and presidential general elections held in leap years and the California gubernatorial primary and general elections held in the alternating even-numbered years between leap years. By placing numerous elections on those ballots, the cost of printing the ballots, printing the sample ballots, printing the voter guides that accompany the sample ballots, mailing the packets containing the voter guides and the sample ballots, conducting the voting at the polling places and finally collecting and then counting the votes registered on those ballots is spread among a large pool of candidates and public agencies, reducing the cost for each as it is defrayed among many.
Agencies and districts which hold their elections on alternate occasions or time venues such as in April of even-numbered years or in odd-numbered years sustain greater expense for doing so because the associated costs of staging an election in such circumstances involves far fewer jurisdictions sharing the ballot, such that the basic underlying cost of the effort is divided by fewer entities.
Similarly, agencies, districts or cities which on relatively rare occasions find themselves obliged to put on a special election at which the residents or citizens of their political jurisdiction alone are called upon to weigh in with regard to filling an empty position or approving/rejecting a measure or proposal or settling some other political question find themselves having to bear the cost of that election alone. Depending on the size of the jurisdiction, both population-wise and geographically as well as the number of its voting precincts, the cost of such an undertaking can be costly. For example, the cost of putting a stand-alone measure on the ballot in Upland, a city then of roughly 75,000 population, in 2017 was initially estimated to be $110,000-to-$125,000 and was ultimately pegged at $242,000. In 2022, an available government resource document says the cost of such elections in California cities based upon average population density typically are estimated to range from $130,000 to $150,000.
A stand-alone countrywide election for assessor in San Bernardino County would involve all 1,139,988 of the county’s registered voters living in the 20,105-square mile county’s 22 cities, two incorporated towns and at least 86 of its unincorporated communities. Extrapolating on the available data, the San Bernardino County Registrar of Voters would not be able to hold such an election for anything less than $3 million.
The dilemma presented by Dutton’s death had its roots in a circumstance that pre-dated his demise. Because of privacy laws and considerations of personal decorum, much is not publicly known about the deterioration of Dutton’s health, which, it is now known, was recognized by him four years ago, around the time of his unopposed reelection as assessor/recorder/county clerk in 2018. A former Rancho Cucamonga city councilman, California assemblyman and state senator, Dutton was originally elected assessor in 2014 in a hard fought and close election against then-Assistant Assessor Tom Harp. Dutton had prevailed in that race, largely on the strength of his superior political fundraising ability. Harp kept the election close by virtue of his in-and-out, top-to-bottom and forward-and-backward understanding of the office and command of its operations, based upon his 34 years’ experience in the assessor’s office, which had ultimately put him into the position of the right-hand man to Assessor Dennis Draeger, who was retiring from the post that year.
Once in office and armed with the power of incumbency, Dutton, fortified by his family’s wealth, his fundraising ability and connections to San Bernardino County’s political and governmental establishment, was virtually unassailable in the post, such that in 2018, there emerged against him no opponent for the assessor’s position, which carried with it the duties of acting as county recorder and county clerk, which together then provided a total annual compensation of $339,754.49, including a salary of $233,021.71, pay add-ons or perquisites of $17,000.10 and benefits of $89,732.68.
Shortly after Dutton’s reelection, a rumor pervaded the county that in 2022, Second District County Supervisor Janice Rutherford, who would at that point be termed out from that post, would seek the assessor’s position while Dutton would seek to assume her place as supervisor. That scenario did not play out, however, and in February of this year, Dutton filed for reelection as assessor. Because of the upper hand he held politically, no one, including Rutherford or former Fifth District Supervisor Josie Gonzales, who had been termed out in 2020 and who had shortly thereafter opened up an electioneering committee for a run as assessor, moved to challenge him.
According to one of Dutton’s acquaintances who spoke to the Sentinel with an assurance of anonymity, Dutton some three years ago recognized he had cancer. Last year, the condition turned critical, with the cancer having metastasized into his bones. His physical health accordingly deteriorated, with fire department paramedics having been summoned to his home on three separate occasions in December when he grew so weakened that he collapsed.
Despite these physical challenges which compromised his focus and ability on occasion to report to his office in San Bernardino, Dutton made the decision to seek reelection.
Dutton again entered the political fray, even though he recognized that there was virtually no prospect he would live long enough to serve out the full term he was seeking through reelection. As it turned out, he was reelected without opposition on June 7 with 100 percent support of the electorate, a tally of 200,752 votes. A month and sixteen days later, on July 23, he succumbed. While he was yet at that time in the position of elected assessor, he was serving out the term to which he was elected in 2018. He was not due to be sworn into the post he was elected to in June of this year until January 2023.
The board of supervisors has the standing and authority to appoint the replacement of a serving county elected official who is removed from office, resigns or dies in office. It does not have the authority to appoint the replacement of a county elected official who is not yet serving. Thus, the board of supervisors can select Dutton’s successor for the duration lasting from the time of his death up until his swearing-in date in January. It does not, however, have the authority to make such an appointment of the individual to hold the assessor’s post from January 2023 until January 2027. Because Dutton died prior to actually being sworn in and beginning that term in office, the county is obliged to hold an election to arrive at who it is to serve in the assessor, county clerk and recorder’s capacities for the four years beginning in January.
Had the county board of supervisors acted with alacrity in the immediate aftermath of Dutton’s death on July 23, it conceivably could have advertised and recruited candidates for the post and then could have placed those candidates on the November ballot, obviating the necessity and expense – likely to run to $3 million or beyond – of holding a special election to replace Dutton.
Curiously, the board of supervisors did not do so. Remarkably, within the same timeframe, the board actively involved itself in placing two measures on the November ballot. One of those was considered by the board on July 26, three days after Dutton’s death. It called for placing a measure on the November ballot that will, if passed, undo the impact of Measure K, passed by two-thirds of the county’s voters in October 2020, which reduced the supervisors’ compensation to $60,000 annually each. This week, on August 3, the supervisors held a specially-called meeting to accommodate a request, made at the July 26 meeting by one of their primary political campaign donors, Jeff Burum, that they place on the November ballot a question posed to the voters as to whether they will support San Bernardino County seceding from the State of California.
The board showed no such sense of urgency in ensuring that a vote to replace Dutton was put on the November ballot.
To have done so, the board would need to pass at its August 9 meeting a confirming resolution, what is known as a “second reading,” to put the matter before the voters in November. A first reading of that resolution would have needed to take place five days prior to that, meaning by yesterday, August 4, at 10 a.m. The county would have needed to give 24-hour advance emergency notice of that meeting, which was absolutely possible, as was demonstrated by the consideration that in order to comply with Burum’s July 26 request, the board had met the noticing requirement to hold a special meeting on August 3 to pass a first reading of the resolution placing the secession vote on the ballot.
The Sentinel today conferred with an attorney with one of California’s premier public agency representation law firms who is widely considered to be among the state’s leading authorities on election law. Speaking on the condition that neither he nor his law firm would be identified, he said that the county board of supervisors can appoint a replacement of a resigned or deceased elected county official but cannot under the election code and the California Constitution make an appointment of an elected official who is not yet in the office to which he or she was elected. That circumstance triggers the need for an election to be held, he said.
He said that Dutton’s death on July 23, some 20 days prior to the filing deadline for municipal candidates in San Bernardino County competing in November 8 election and more than a month prior to the San Bernardino County Registrar of Voters’ internal deadline for finalizing the ballot format, “technically” gave the county enough time, if it had acted rapidly, to get qualified candidates for assessor on the ballot and hold a race for the position in November.
“The primary obstacle would have been establishing the candidate list in what might have been a shortened filing period,” he said. “There are exemptions in the code that allow that to occur, but county counsel, which has a conflict because it is representing the board members who failed to act in a timely manner, will probably not confirm that. The timing was such that they could have achieved a much more cost-effective election. At this date [August 5], they are outside that window, I’m afraid. There is no dispute they can appoint to replace your county assessor between now and the end of his current term. If they appoint someone for the yet-to-commence term, the county would be subject to a legal challenge. If such a challenge were made, the county would lose.”
Of note is that the county is abuzz with reports that the four individuals the board of supervisors is contemplating appointing to replace Dutton are current or former members of the Fontana City Council. Established is that former Supervisor Gonzales, who was a member of the Fontana City Council prior to gaining a berth on the board of supervisors, had declared her intention of running for assessor in 2021 by creating a fundraising account for that purpose. Outside of her circle, it is unknown why she ultimately did not run for assessor. There have been reports going back for more than three years that Rutherford was interested in seeking the assessor’s post. It is reported that current Fontana Mayor Acquanetta Warren is interested in filling the position, which at this time provides a total annual compensation of $391,230.76. Word about the county, as well, is that Jesse Armendarez, who was formerly a member of the Fontana City Council, a candidate for Fifth District Supervisor in 2020 and currently a candidate in this year’s race to succeed Rutherford as Second District supervisor, will be elevated, based on his past pattern of providing campaign donations to a substantial spectrum of local elected officeholders, to the assessor’s post if his current candidacy for supervisor is not successful.
-Mark Gutglueck