The California Supreme Court’s decision to let the Fourth District Court of Appeals’ ruling upholding 2020’s Measure K stand raises a question over whether current and past members of the San Bernardino County Board of Supervisors will be required to refund some $380,000 each they have been paid in excess of what the political reform initiative specified.
In the November 2020 election, a supermajority of San Bernardino County’s voters approved Measure K, which was sponsored by the government reform advocacy coalition the Red Brennan Group. The measure called for deeming the county’s five supervisors part-time legislators and reducing each of their individual total annual compensation, which ranged, depending on the number of their familial dependents covered under their benefit plans, from $242,941.27 to $280,905.92 annually, to $60,000. Measure K further limited the supervisors to a single four-year term. It passed by a more than two-thirds margin, with 516,184 votes or 66.84 percent in favor to 256,098 or 33.16 percent in opposition.
The county, using its office of county counsel, retained three attorneys – Bradley Hertz, James Sutton and Nicholas Sanders of the Los Angeles-based Sutton Law Firm – and authorized them to sue in San Bernardino County Superior Court the supervisors’ own immediate employee, Clerk of the Board of Supervisors Lynna Monell, in a legal petition to keep her from implementing Measure K. Then-County Counsel Michelle Blakemore and San Bernardino County Chief Executive Officer Leonard Hernandez arranged to have the lawsuit maneuvered into the courtroom of Superior Court Judge Don Alvarez, who was known to be both beholden and sympathetic to the county’s governmental hierarchy. The filing of the lawsuit put Measure K into abeyance while it was subject to legal challenge, preventing the salary reductions from going into effect until such time as the matter was adjudicated. Judge Alvarez made a finding invalidating the entirety of Measure K on the grounds that its secondary provision limiting supervisors to a single four-year term was unconstitutional and that the term limitation element of the measure was not separable from its salary and benefit reductions. This, Judge Alvarez ruled, rendered Measure K unenforceable.
The Red Brennan Group, appealed Alvarez’s finding and obtained a ruling from the 4th District Court of Appeal in the summer of 2022 reversing his invalidation of the measure. But the lawsuit challenging Measure K bought the board of supervisors two years of time, during which the county government placed on the November 2022 ballot what it represented as its own government reform initiative, Measure D, which restored each individual supervisor’s total annual compensation to roughly $255,000 to $275,000 – roughly 80 percent of what is provided to a Superior Court judge – while imposing on the supervisors term limits of three four-year terms, essentially equivalent to what had been the wage-scale and number-of-years-in-office rules that had been in place before Measure K’s passage. Measure D passed by a margin of 241,894 votes or 58.22 percent to 173,582 votes or 41.78 percent in the November 2022 election.
In the meantime, the county lodged an appeal of the 4th District Court of Appeal’s ruling validating Measure K.
By convincing the county’s voters to reestablish their roughly quarter of a million-dollar total compensation packages with the passage of 2022’s Measure D, the board of supervisors hoped that they would never be subject to the substantial reduction in pay and benefits that had been mandated by Measure K. There is a pressing legal question, however, as to whether the board members can simply elude the voter mandates that were imposed upon them. That question is even more pointed now that the California Supreme Court has upheld Measure K and the salary, benefits and term limits it embodied.
Of relevance is when, precisely, the measures – both K and D – went into effect.
In the run-up to the 2020 election, the board of supervisors was composed of First District Supervisor Robert Lovingood, Second District Supervisor Janice Rutherford, Third District Supervisor Dawn Rowe, Fourth District Supervisor Curt Hagman and Fifth District Supervisor Josie Gonzales. Lovingood had originally been elected to the board in 2012 and was, at that point, most recently reelected in 2016. He had chosen to not seek reelection in 2020. Rutherford was originally elected in 2010 and had been reelected in 2014 and 2018. She was thus, under the rules then in effect, due to be termed out in 2022. Rowe had been appointed to the board in 2018 and in March 2020 had run, successfully, for election to continue representing the Third District, in the March 2020 Primary Election. Hagman had first been elected to the board in 2014 and was reelected in 2018. Gonzales had been originally elected to the board in 2004 and was reelected in 2008, 2012 and 2016. Under the term limits then in effect, which had been instituted in 2006, she was due to be termed out of office in 2020. Paul Cook had successfully run in the March 2020 election to succeed Lovingood in the First District. Joe Baca Jr. had run to succeed Gonzales in 2020, ultimately emerging victorious in the November 2020 General Election.
Under one theory, Measure K was to go into effect immediately upon passage. That is, once the November 2020 election was certified in early December 2020, all of the supervisors – Rutherford, Rowe and Hagman, who were already in office, and Cook and Baca, who were sworn in in December 2020, would see their total annual compensation reduced to $60,000. Under a competing theory, the salary/benefit reduction would not apply to any of them, since when Rutherford and Hagman filed to run for office in 2018 and when Cook, Rowe and Baca ran for office in 2020, they did so with the understanding that the position provided a salary of $166,193.21 along with add-ons, perquisites and benefits of anywhere between $76,748.06 and $114,712.71, depending on the number of their familial dependents covered under their benefit plans. Since they ran for office and were elected with the understanding that was due them while they were in the offices they were elected to, their salary and benefits had to remain at that level, according to that theory.
In 2022, Rutherford left office in accordance with the term limits that had been in place throughout her time in office which held her to three four-year terms, and Jesse Armendarez was elected in her place. Curt Hagman sought and achieved reelection that year, as well.
In 2006, the voters of the county were asked to consider Measure P, which was billed by its proponent, the Second District Supervisor Paul Biane, as a term limit proposal for county supervisors, one that would thereafter restrict the supervisors to three four-year terms in office. Measure P also had a provision to up the supervisors’ individual annual salaries before perquisites, add-ons and benefits from $99,000 to $150,183. County voters passed Measure P by a margin of 182,892 votes or 56.49 percent in favor to 140,887 votes or 43.51 percent opposed. As soon as the election results were certified, Measure P’s salary increase provision was put into effect for all supervisors, including those elected in 2004 and those reelected or elected in 2006, who saw their $99,000 salaries increased by $51,183 to $150,183 annually.
With the passage of Measure K in 2020, the Red Brennan Group sought to rely on the precedent that had been established with Measure P in 2006, such that Measure K went into immediate effect for all of the supervisors, including those elected or reelected in 2018 and those elected in 2020. A decision on that was put on hold when the county board of supervisors filed suit to prevent the implementation of Measure K. The board’s fallback position, however, remained that since both of the board members reelected in 2018 – Rutherford and Hagman – and the three members elected in 2020 – Cook, Rowe and Baca – had run for office with the understanding and expectation that the position of supervisor paid at that point $166,193.21 in salary along with add-ons, perquisites and benefits, even if Measure K was upheld, the reduction of Rutherford’s and Hagman’s salaries could not be put into effect until after the 2022 election and Cook’s, Rowe’s and Baca’s salaries, add-ons, perquisites and benefits could not be reduced until 2024. Moreover, the supervisors maintained, if Measure K was upheld, it would have no effect on the supervisors’ remuneration, since all five would be termed out in 2022 and 2024 altogether.
The passage of Measure D in 2022, which essentially reestablished the supervisors’ individual annual pay levels at around a quarter of a million dollars, complicated the matter further.
With the passage of Measure D, the supervisors and their supporters averred, they were no longer and had never been subject to a salary, pay add-on, perquisites and benefits reduction, even if the courts had upheld Measure K, which they said was an entirely moot issue.
Not so, asserted the Red Brennan Group. Measure K was valid, the reform coalition argued, at least from the time it passed in 2020 until it was superseded by Measure D. That being the case, the Red Brennan Group maintained, applying the logic that was applied in 2006 when Measure P was immediately deemed applicable, all five of the supervisors who served between December 2020 and December 2022 – Cook, Rutherford, Rowe, Hagman and Baca – were overcompensated each of those two years by approximately $190,000, the difference between the $60,000 each was allotted under Measure K and the rough average of $250,000 they were actually paid. Each of those, at this time, should be required to refund to the county’s taxpayers something on the order of $380,000.
Exactly how this will shake out, remains to be seen.
County officials, including members of the board of supervisors and the office of county counsel, did not weigh in on the full import of the California Supreme Court’s decision not to second guess the Fourth District Court of Appeal.
Tom Murphy, the spokesman for the Red Brennan Group, told the Sentinel, “We welcome this action by the California Supreme Court. By refusing to take up the board of supervisors’ challenge to Measure K, the court let stand a decision by the 4th District Court of Appeal. That decision firmly supported Measure K and the right of voters to set term limits and compensation for elected officials in an effort to reform local government. San Bernardino County is in desperate need of thoroughgoing reform in every nook and cranny of government.”
Murphy continued, “San Bernardino County voters should be asking a variety of questions: Why did the county supervisors sue over Measure K when more than two-thirds of their constituents approved the measure? Why did the San Bernardino County Superior Court rule in favor of the political establishment against the vote of the people? Why, when the Court of Appeal ruled in favor of Measure K, did the county board of supervisors immediately propose to overturn Measure K by placing its own initiative, Measure D, on the 2022 ballot? Why did the Howard Jarvis Taxpayers Association label the Measure D campaign as corrupt and despicable?”
Murphy said, “In the summer of 2022, the Court of Appeal ruled against the supervisors on Measure K. Within four weeks, elected officials, backed by public unions, politicians and local developers such as Jeff Burum, approved the so-called Measure D Taxpayer Protection and Government Reform initiative. The initiative was fast-tracked on to the November 2022 ballot. The ruling cabal then partnered to spend over $1.2 million in support of Measure D. Regrettably, voters busy with making a living simply did not have the time to distinguish the lies woven into the political elite’s Measure D. The truth is that Measure D reset the term-limit baseline for each of the sitting county supervisors. In other words, current supervisors can serve another three four-year terms. Supervisor Hagman has the potential to serve 20 years as a county supervisor if he continues to be reelected. Measure D overturned Measure K in its entirety and tied elected supervisors’ compensation to that of a superior court judge – and included an automatic raise each time a supervisor is reelected. Measure D offered county residents tax protection which they largely already had via the California Constitution, and Measure D threatened voters with the rescission of what reform it could be said to provide should those voters ever deign to readdress the issue of supervisor compensation.”
Murphy said, “For far too long the county ruling class has misused and abused both the legal and political process to stymie real reform of county government.”
The dwindling hope that county voters can hold local government accountable and ensure the county’s politicians acquiesce to voter-approved reform, Murphy says, consists of “voters being willing to choose candidates who have no political experience during local elections.” He said the county’s ruling political class has bought the name recognition it has through applying the political donations provided to its members by special interests who are buying influence with the county’s officeholders. Murphy’s advice to the county’s voters is to “Select the name you do not recognize. It can’t make the San Bernardino County political environment worse than it already is.”
-Mark Gutglueck