Measure D Proponents’ Electioneering Tactics Trigger Rebuke From Harward Jarvis Association

The effort by the San Bernardino County Board of Supervisors to extend its members’ tenure in office and preserve their total annual compensation approaching $300,000 prompted a stern rebuke from the leader of California’s leading anti-tax advocacy group.
“The most despicable, deceptive campaign we’ve seen in a long time,” said Jon Coupal, president of the Howard Jarvis Taxpayers Association, in reference to a mailer sent out by the proponents of Measure D.
The mailer falsely claimed Measure D, which was put on the ballot in San Bernardino County to thwart the intent and effect of an initiative, Measure K, which was passed overwhelmingly by the county’s voters two years ago, was supported by the Howard Jarvis Taxpayers Association.
Measure K had imposed on San Bernardino County supervisors a strict one-term in office limit, while reducing each member’s yearly salary and benefits to $60,000, an amount less than a quarter of what they were previously receiving and roughly one fifth of what they will receive if Measure D passes in November.
The use of Measure D by San Bernardino County’s political establishment to block the reforms layered into Measure K is the latest effort by the supervisors to prevent the Red Brennan Group from proceeding with structural changes to county government its members believe will safeguard taxpayer funds and reduce what its members consider to be the pernicious influence of special interests on county policy.
Kieran “Red” Brennan was 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. Brennan pushed efforts to ensure government transparency and accountability, ones he hoped elected officials could be convinced to impose on themselves and, if not, would ultimately be put in place through the citizen initiative process.
In 2012, at the age of 87 and in his last hurrah before his 2013 death, Brennan headed an effort by a group of like-minded county residents in sponsoring an initiative, 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.
Brennan and his cohorts figured that the supervisors’ total compensation, which was more than three-and-one-half times that made by the average county resident, put the county’s political leadership in a bracket that left the supervisors out of touch with the economic reality their constituents dealt with on a daily basis. Moreover, the inflated salaries and benefits the supervisors were provided left them, Brennan and his associates said, intent on being reelected so they could keep those positions and the financial advantage holding those offices represented, such that they had grown desperate for political donations. Those donations, provided by individuals and corporations with contracts and/or franchises with the county or projects up for approval by the board of supervisors, created a circumstance in which the supervisors were more sensitive to their donors and their needs than the needs of the constituents they represented, Brennan maintained.
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, used their authority as public officials to place their own “reform” initiative on the ballot, designated Measure Q, to compete with Measure R. Measure Q called for leaving the supervisors yearly $151,971 salaries in place and reducing their annual benefits then valued at $67,500 by $5,000 to $62,500. During the 2012 campaign season, the supervisors touted Measure Q as a “sensible” and “moderate” approach toward political reform.
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 it had garnered more votes than Measure R, Measure Q went into effect and Measure R did not.
The political reform movement in San Bernardino County was set back by Kieran Brennan’s death in 2013. Ultimately, however, many of those associated with him over the years created a nonprofit entity named in his honor. Members of the Red Brennan Group were convinced the substitute reform measure ploy the board of supervisors had used in 2012 which reduced the board members’ overall annual compensation at that point from $219,471 to $214,471 had not effectuated the change they felt was necessary to make the county’s top elected officials less beholden to their campaign contributors. Accordingly, they initiated another voter initiative. After aborting an effort to place a new measure on the ballot in 2018 when the county legally challenged the contents of that proposed initiative in 2017, the Red Brennan Group mobilized in 2019 and over a period of less than six months gathered 75,132 signatures of county voters to place another measure on the ballot, which was designated by the San Bernardino County Registrar of Voters as Measure K. Measure K covered the same ground as 2012’s Measure R but went a step further. In addition to calling for reducing the supervisors’ individual total compensation, which by that point had risen to $263,466.95 – consisting of $174,884.83 in salary, $20,461.61 in other pay and $68,120.51 in benefits – to the $60,000 originally proposed by Red Brennan in 2012, it also proposed limiting each supervisor to a single one-year term.
The board of supervisors attempted to repeat what had occurred in 2012 by placing an alternative initiative on the ballot, one designated as Measure J.
Measure J perpetuated the existing cap of three four-year terms for supervisors and set their salaries at 80 percent of a Superior Court judge’s salary, which when taken together with the supervisors’ add-on pay and their benefits would bring their total annual compensation to somewhere between $270,000 to $290,000. Measure J also dispensed with genderist language that had been part of the county charter for more than a century which used pronouns such as he and him in reference to county officials, which, it was pointed out, no longer fit the current times when many of those serving in public office are women. It was the supervisors’ collective hope that just as had occurred eight years previously, their alternate reform measure would outperform the one sponsored by the Red Brennan Group and thus keep Measure K’s pay reductions 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, the one sponsored by the supervisors, 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.
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 prevent its members’ pay from being reduced. Hertz, Sutton and Sanders filed a petition for a writ of mandate aimed not at the Red Brennan Group, but rather the supervisors’ own employee, San Bernardino County Clerk of the Board Lynna Monell. The petition on behalf of the board of supervisors sought to prevent Monell from implementing Measure K, arguing that it violated the supervisors’ rights under the California Constitution to set their own salary, infringed on San Bernardino County citizens’ First and Fourteenth Amendment rights in the U.S. Constitution through the imposition of term limits that prevented voters from reelecting incumbent supervisors and that Measure K violated “the single subject rule” pertaining to voter initiatives.
The county was granted an injunction preventing Measure K from going into effect while the legal action was pending, such that the supervisors have continued to be provided with their $270,000-to-$280,000 annual compensations.
Though it was not named in the petition for a writ of mandate, the Red Brennan Group, through its attorney, Aaron Burden, submitted a motion that was granted to intervene as a defendant in the case. After considering the arguments put forth by Hertz, Sutton and Sanders as well as Burden, San Bernardino County Superior Court Judge Donald Alvarez in October 2021 concluded that Measure K should not be implemented.
While holding that the salary/benefits/total compensation limitation contained in Measure K was permissible under the California Constitution, Judge Alvarez ruled that the measure’s one-term limit is a violation of the U.S. Constitution. Because 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, Judge Alvarez said the measure in its entirety must be struck down.
Burden appealed that ruling to the Fourth District Court of Appeal in Riverside. On July 12, 2022, the Fourth District Court of Appeal released a tentative decision stating that Judge Alvarez erred in striking down Measure K. While the appellate panel said it would provide both sides an opportunity to present oral arguments before the decision is finalized, the justices stated unless they were dissuaded by the county’s reasoning, “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 trial court’s ruling granting the petition is reversed. Monell and all other county officials may carry out their duties to certify, authenticate, record and file Measure K. It must also provide that Measure K is deemed to have been certified, authenticated, recorded and filed on the same date as Measure J.”
Faced again with the prospect of seeing their pay reduced, the supervisors in July voted 5-to-0 to put another measure on the November 2022 ballot, since designated as Measure D, which will, if passed, undo all of the provisions of Measure K.
As presented, the measure would adjust the county charter so that the supervisors would receive a base annual salary equal to 80 percent of the annual salary of the judges serving on the San Bernardino Superior Court along with benefits provided to the county’s department heads. With the three percent annual cost-of-living increases that are applied to the salaries of county administrators and management, this would zoom the supervisors salaries to somewhere in the neighborhood of $290,000 per year. Judges in San Bernardino County currently receive $225,074 in base salary. As such, this would translate into the supervisors being provided with an annual salary of $180,059.20. The county’s department heads are provided with benefits ranging from $51,381.92 at the bottom and $82,380.25 at the top with an average of $66,560.02. The supervisors are provided with add-ons and perquisites ranging from $17,000.10 to $25,340.12 on a yearly basis with an average of $19,644.10. Thus, the measure the supervisors are proposing would, if passed, provide them with an average annual compensation of $266,263.32 as of this year, $274,251.22 as of next year and $282,478.75 by 2024, which would be subject to a 3 percent cost of living increase yearly thereafter with regard to their benefits and add-on pay and any raises provided to the county’s judges.
The supervisors included in Measure D a selling point they hoped will convince the voters they should support it. The measure, if passed, will require that if the board of supervisors is to put on any future ballot a proposal to increase taxes, it must do so by a four-fifths vote. As it now stands, the board of supervisors maintains it can call for a tax approval vote of the county’s residents with a vote by three of its members.
Also contained in the measure is language that will move the start or end of the supervisors’ terms from the date of the board of supervisors’ first meeting in December of even-numbered years following an election to noon on the first Monday after the first day of January next following their election, such that their four-year terms will end at noon on the first Monday after the first day of January four years thereafter.
Contained in the language is an ambiguity that would, based upon how it is interpreted, seemingly allow the currently serving board members to serve another three terms beyond what they have already served. This has come about because language that cleared up that ambiguity which was in an earlier draft of the language revision for the ordinance the measure would put in place was removed from the text. That language, which existed within Section 204 of the ordinance pertaining to the board of supervisors under the heading “Term Limits” stated: “This section shall only apply to those supervisors who are first elected to the board of supervisors after the effective date of this section, and who have not previously served on the board of supervisors. Members of the board of supervisors who were elected before the effective date of this section may serve only the number of terms allowed at the time of the last election before the effective date of this section.” Both sentences, however, were struck from the redrafted ordinance, which is to be the subject of what is voted upon on November 8.
As it now stands, irrespective of whether the Fourth District Court of Appeal tentative ruling released on July 12 is finalized and the one-term limit put in place, under Measure P passed by the county’s voters in 2006, supervisors are limited to three terms. If the measure the supervisors are proposing in November passes, it will reset the term limit clock such that limiting any of the supervisors to three terms will go into effect going forward after this coming November. That would mean that current Second District Supervisor Janice Rutherford, who under the rules put in place by Measure P is to be termed out of office in December after she was elected in 2010 and reelected in 2014 and 2018 and did not seek reelection this year, will become eligible to run for office once again in 2026, such that she conceivably could, with the approval of voters, serve three further terms, which would give her a total of six terms or 24 years in office. Fourth District Supervisor Curt Hagman, who was elected in 2014 and reelected in 2018 and in June of this year, would be eligible to run again in 2026, 2030 and 2034, such that he, too, might possibly serve six terms or 24 years total as supervisor, if the Measure D passes. Third District Supervisor Dawn Rowe, who was appointed to the board in 2018 to finish the final two years of a term to which former Supervisor James Ramos was elected in 2016, was reelected in 2020. If Measure D passes muster with the voters on November 8, under the language of the county charter to be revamped by the measure, she would be able to run again in 2024, 2028 and 2032, so that pursuant to the decision of the voters in future elections, she could potentially serve four-and-one-half four-year terms, or 18 years as supervisor. Both First District Supervisor Paul Cook and Fifth District Supervisor Joe Baca were elected in 2020. Under the change in terms to the county charter as pertains to the term limits of supervisors contained in Measure D, they would be able to finish their current term and run again in 2024, 2028 and 2032, conceivably serving four terms in total or 16 years, if, indeed, the voters consistently retain them in office.
In carrying out their campaign on behalf of Measure D, the supervisors and their supporters sought to make use of the measure’s provision to require a four-fifths vote of the board to place a tax increase proposal before the county’s voters, characterizing it as a “taxpayer protection clause.” Then boldly, utilizing its own rhetoric, the Measure D campaign team appropriated the name of the Howard Jarvis Taxpayers Association, without the association’s permission, in touting Measure D.
The Howard Jarvis Taxpayers Association is the group founded by Howard Jarvis, who famously led the California Taxpayer Revolt of 1978, which resulted in the passage of Proposition 13, which locked in property tax rates.
In actuality, the Howard Jarvis Taxpayers Association is aligned with the Red Brennan Group and had been supportive of the local group’s goals, including Measure K and its reforms.
In relatively short order, the Howard Jarvis Taxpayers Association objected to the use of its name and what it called “the illegal use of the image of Howard Jarvis.” It sent two cease and desist letters to the committee supporting Measure D.
In addition to calling the Yes on Measure D campaign misleading and despicable, Jon Coupal, in his capacity as the Howard Jarvis Taxpayer Association president, said, “Measure D is the latest attempt by entrenched interests to undo Measure K, a citizens’ initiative that imposed a one-term limit on San Bernardino County supervisors and cut their salaries to match the county’s median income. Efforts to reverse Measure K, which was approved by 66.8% of voters, have been pushed forward in the courts and in the Legislature and now are being put before voters in a ballot measure that is dressed up to look like taxpayer protection.
“They are masking their self-serving measure with images of Howard Jarvis, Ronald Reagan, and claims that Measure D is a ‘new Proposition 13 for San Bernardino County,’” Coupal continued. “But Measure D isn’t a new Proposition 13. It’s a ploy by special interests and career politicians to stay in power longer.”
According to the Howard Jarvis Taxpayers Association, “Measure D does not actually contain the taxpayer protections for which it attempts to claim credit. Thanks to Propositions 13 and 218, the people already have the right to vote on taxes, and Measure D’s requirement for a ‘four-fifths’ vote of the board of supervisors to place taxes on the ballot is misleading. Under current law – Government Code 53724 [Prop. 62] – general taxes already require a two-thirds vote of the supervisors, and two-thirds of five is the same four-vote requirement. Measure D would change only the vote requirement for board approval of special-purpose taxes, increasing it from three votes to four.”
Further, according to the Howard Jarvis Taxpayers Association, “Measure D deceptively promises to give San Bernardino taxpayers rights they already have while taking away something voters approved by a two-thirds majority only a couple of years ago.”
Susan Shelley, the spokeswoman for the Howard Jarvis Taxpayers Association, emphasized, “The Measure D campaign takes deception even higher into the stratosphere with its illegal use of a photograph of Howard Jarvis. On the subject of taxes, California voters rightfully trust the name of Howard Jarvis and the eponymous organization that carries on his work. The author of Proposition 13, which has saved California homeowners hundreds of billions of dollars in property tax relief, would recoil at the politicians’ lying schemes that are being exposed in San Bernardino County.
“The Measure D campaign has knowingly and wrongfully pirated the copyrighted picture of Howard Jarvis, the exclusive rights of Howard Jarvis Taxpayers Association as well as ‘Save Proposition 13,’ an independent advocacy organization specializing in advancing taxpayer interests during California election cycles,” Shelley added. “Both organizations have forwarded ‘cease and desist’ letters to the Measure D campaign over the use of the photograph and have demanded economic damages for the unlawful infringement.”
According to the Howard Jarvis Taxpayers Association, “While we are considering additional legal action against the Measure D campaign, we will do all we can to educate voters of San Bernardino County that Measure D in no way advances the interests of taxpayers. Measure D is an attempt to reverse the will of the voters after the voters decisively ended a gravy train for politicians. This unseemly campaign only serves to reinforce that the voters were right.”
-Mark Gutglueck

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