In a move some have said represents an illegal suspension of the California Elections Code and violation of the California Constitution, the San Bernardino County Board of Supervisors has bypassed the county’s voters and appointed currently acting County Assessor Christopher Wilhite to serve as assessor from next month until January 2025.
The board in September appointed Wilhite to serve as assessor, recorder and county clerk, less than two months after the July 23 death of the incumbent assessor/recorder county clerk, Bob Dutton.
Dutton, who served as a Rancho Cucamonga councilman from 2000 until 2002, as an assemblyman from 2002 until 2004 and as state senator from 2004 to 2012, was first elected county assessor in 2014 and was reelected without opposition in 2018.
It was shortly after the 2018 election that signs of the prostate cancer that would kill Dutton first manifested, ones which he ignored. By 2020, Dutton’s cancer had advanced to the point of being inoperable and terminal, a condition he shared with only a handful of those closest to him. Despite recognizing that he would not be likely to serve out a full third term as assessor, he opted to seek reelection this year, filing for and qualifying his candidacy in February for the election to be held in conjunction with the June 6 California Primary. Based on his status as a two-term incumbent, his familial wealth and his fundraising capability, Dutton was able to ward off any opposition, despite the consideration that former San Bernardino County Fifth District Supervisor Josie Gonzales was interested in acceding to the assessor’s post and, upon creating a campaign committee for a run for the office, had accumulated $495,147.83 toward such a campaign. Similarly, outgoing Second District Supervisor Janice Rutherford was said to be interested in serving as assessor, and she had $32,437.74 left over in her dormant supervisor’s campaign account she could have readily converted toward use in a run for assessor.Thus, Dutton again ran unopposed in the June 6 election, garnering 100 percent of the vote. Neither he nor anyone in his circle, few of whom knew precisely how ill he was, nor anyone else, anticipated how rapidly he would make his final declension. Just 47 days later, he died.
The board of supervisors at that point had time to act, seek and obtain applicants for the assessor’s post willing to stand for election, have them meet the requirement of getting 25 signatures of registered voters endorsing their candidacies and fulfilling other criteria to qualify their candidacies and place them on the ballot by the August 12 deadline the San Bernardino County Registrar of Voters had to finalize the November 8 ballot. Despite inquiries from the public to that effect and encouragement from county residents that the board do just that, the supervisors did not, and the deadline for holding an election for assessor to serve from January 2023 until January 2027 in November corresponding with the gubernatorial general election elapsed. Meeting that deadline was of some moment, since the cost of holding a stand-alone election countywide would cost, conservative estimates run, to well over $4 million and by putting the matter before the voters in November 2022, the cost could have been reduced, according to estimates, to roughly one-twenty-fifth of that.
This is problematic, constitutionalists and legal/governmental experts say, because the board of supervisors does not have the authority to bypass an election. While it is within the board of supervisors’ purview to replace an elected official if that individual vacates his or her office through promotion to another post, resignation, disablement or death, the board does not have the authority to appoint someone into a position that has not been filled by the elective process. Thus, the board was free to appoint Wilhite, or anyone else who was qualified, to replace Dutton and have him fill out the remainder of Dutton’s 2019-to-2023 term, such as occurred in September. As Dutton was never sworn in for his third term, the position of assessor for the term running from 2023 until 2027 was never occupied by someone duly elected to that post. As such, the board did not have the authority to name a replacement but only to hold an election to ensure that the post is to be filled by someone chosen in accordance with the will of the county’s voters.
Thus, according to constitutional purists, the second appointment of Wilhite to serve as assessor, county recorder and county clerk that occurred on Tuesday, December 6 was invalid. They say a legal challenge, if mounted by someone with standing, would force the county to rescind Wilhite’s appointment as assessor, reframe his appointment as a temporary one by which his title would revert to interim assessor or acting assessor, and require that the county hold, within 87 days, a countywide election for assessor, one that would cost taxpayers in excess of $4 million to stage.
County officials seem to be calculating that no one among the county’s more than 2.2 population will go to the expense of hiring an attorney to ensure that the election code is adhered to and that the county’s residents’ rights to elect their constitutional representatives, in this case the county assessor/county recorder/county clerk, are respected. A secondary factor is that by forcing the issue, whatever individual or group of individuals who stand up to the board of supervisors will run the risk of being assailed for having cost county taxpayers over $4 million by insisting on an election being held.
At its December 6 meeting, the board of supervisors considered applications by Wilhite; Bradley Snowball, a supervising auditor-appraiser with the county who has worked under Dutton and Wihite and who applied for the post last summer but came up short at that time; and Rancho Cucamonga Councilman Ryan Hutchison, who has been making bolder and bolder plays at becoming a major county political player. In recent months, Hutchison was a donor to both the campaign of Jesse Armendarez, who was elected to Second District supervisor on November 8, as well as to the campaign in favor of Measure D, which was sponsored by the board of supervisors as a means of keeping Measure K, which was passed by the voters in 2020 and reduced the individual supervisors to an annual total compensation of $60,000 and limited them to a single term, from going into effect. This year, Measure D, with the assistance of Hutchison and other donors who put up a total of $829,000 in support of the initiative, was approved by the voters, abnegating Measure K and thus allowing the supervisors to serve three four-year terms before being termed out and thus preserving their total annual compensation in excess of $260,000.
Hutchison was not the only one who attempted to purchase influence with the board of supervisors through campaign donations. This year Gonzales transferred $4,200 out of one of her electioneering accounts, one intended to finance a potential run for the Fontana City Council, to support Armendarez’s bid for supervisor. Gonzales likewise transferred $4,200 out of her assessor’s campaign war chest to the campaign fund in support of Curt Hagman’s successful run for Fourth District supervisor earlier this year.
An examination of the remuneration provided to the county assessor/county recorder/county clerk explains why an individual would be interested in the position. In addition to an annual salary of $261,624.17, the position provides another $17,000.10 in pay add-ons along with benefits worth $101,211.42 for a total annual compensation of $379,835.69.
The post of assessor carries with it a remarkable degree of political power.
In San Bernardino County, as in virtually all other 57 counties in California, the assessor is the leading taxing authority. As such, given that San Bernardino County, at 20,105 square miles, is the largest county in the lower 48 states with a land area larger than New Jersey, Connecticut, Delaware and Rhode Island combined, county assessor is one of the most powerful governmental positions in the jurisdiction. Not only does the assessor determine the property tax assessments that landowners must pay annually on their real estate holdings, his office also makes a determination on the value and thus the taxes to be paid on a host of assets including buildings, equipment, machinery, boats and the like. The taxes assessed against a business and its assets such as those involved in manufacturing or processing or packaging or distributing can have a direct influence on whether that business is profitable or not, and if it is profitable, just how profitable. The assessor and his minions have discretion and wide latitude in assessing such assets. If, for example, the building, equipment and inventory of a foundry or factory is determined to be worth $7 million, the taxes to be paid in that regard are half what that manufacturing concern would pay if the building, equipment and inventory of that foundry or factory is ascertained to be worth $14 million. In San Bernardino County, large business owners, ones in good standing with the region’s politicians and its governmental structure, are expected to, and routinely do, make a show of appreciation toward the politicians who oversee that governmental structure. And if a business owner just had his holdings assessed in such a way that he saw a savings of, say, $500,000 on the amount of taxes he would have had to pay if his holdings had been determined to have a much higher value, he can often be counted upon to peel off $1,000 here and there as donations to a couple of different politicians’ campaign funds and maybe $2,000 once or twice or three times for a few other politicians’ electioneering accounts and maybe $5,000 or $10,000 to another elected official or two so that they might remain in office and keep up the good work they are engaged in by making sure government is run smoothly and well.
Similarly, real estate speculators, those engaged in the development of real estate or those simply investing in property have an interest in ensuring that their nonproductive holdings are assessed at the lowest possible value. They, too, can be counted upon to make donations to the assessor and his political allies, so to stay on their good sides and keep those with good ideas and the right attitude in office, to make sure that the good ol’ boys that make up the establishment can keep on in the way they always have. Bob Dutton fit right in with that establishment. Indeed, throughout the time he was investing in real estate and engaged in speculation and developing property in Rancho Cucamonga in the 1980s and 1990s and while he was a member of the Assembly and then a member of the California State Senate and while he was San Bernardino County assessor, he not only was a part of that establishment but embodied it.
During his tenure as assessor, Dutton could be relied upon to protect the financial interests of those who had gained entrée into San Bernardino County’s political and business establishment. It was equally true that he was willing to use his tax assessing authority as a cudgel against those who were in the opposite or dissident political camp. An examination of both the tax assessments and the personages involved in protests of assessments levied by his office in the form of those appealed to the county’s assessment appeals board and the general trend of the outcomes of those cases suggests that those who fall within the category of the political establishment in San Bernardino County were given far more favorable treatment by the assessor’s office under Dutton than those who were not members of the political establishment.
In this way, the members of the board of supervisors – finely attuned political animals all – have expectations that Wilhite, who praised Dutton and said he was proud to be a member of his team and intended to carry on in the direction Dutton had blazed as assessor, is expected to live up to the board of supervisors’ expectations of him.
-Mark Gutglueck