So you say

The contesting of Measure W stands as what may prove a crucial battle over the cultural retrenchment in California and San Bernardino County as pertains to governmental service provision and financial responsibility.
There was a time when local governments in California and indeed throughout the United States, the various levels of government existed for the implementation of mutually agreed-upon laws, rules and regulations and the provision of in-common beneficial public services, including but not limited to all order of constructing and maintaining infrastructure such as streets, bridges, sidewalks, storm drains, sewers and water purification plants, cemeteries, hospitals, schools and parks and the establishment, outfitting manning and operation of police and fire departments. For generations, government workers were considered and were seen by themselves and the citizenry as public servants, ones who were, to be sure, remunerated for their work, but not overgenerously, and it was generally accepted that employees in the public sector were no more highly valued and in some degree less so than their counterparts in the private sector. The two minor benefits that came with working for the government were that the employment was steady and upon retirement loyalty was rewarded with a modest but still livable pension.
Over the years, and particularly within the last two generations, in California in particular employment in the public sector has become more and more lucrative, such that state, county and city employees in most cases have salaries that rival or even exceed salaries paid at most levels throughout the private sector and the benefits provided to public employees overmatch those given to everyday workers employed by corporations and companies large and small. Most significantly, the retirement benefits public employee unions have wangled for government employees have become exceedingly generous. Virtually across the board, those who have worked for the government all or or most of their adult working careers can count on receiving a pension that is equal to 75 percent to 80 percent of the highest salaries they earned while working for government. Moreover, between one-fourth and one-third of those who worked their entire careers in the public sector can count on receiving a pension that is equal to the highest salary they earned while they were working. In addition, over the last 25 to 30 years, a significant percentage of those employed in the public sector have been able to retire at increasingly lower ages.
For regular line employees in government jobs, the various public employee retirement systems that exist in the state – the largest, the California Public Employees Retirement System (CalPERS), which covers state employees and the employees of many cities and counties; the California State Teachers Retirement System (CalSTRS); the San Bernardino County Employees Retirement System (SBCERA), which covers San Bernardino County’s employees and those of the region’s cities and agencies; and 79 other public retirement systems – they receive a yearly pension based on a formula that provides them with two percent of their highest annual income during the time they were employed times the number of years were employed. Thus, someone employed 20 years with a city or county or agency in a non-managerial capacity would receive a pension that was 40 percent of that person’s highest annual salary, including overtime if the job in question provided overtime pay. A person employed 30 years with a city or county or agency in a non-managerial capacity would receive a pension that was 60 percent of that person’s highest annual salary, including overtime if the job in question provided overtime pay. An individual employed 40 years with a city or county or agency in a non-managerial capacity would receive a pension that was 80 percent of that person’s highest annual salary, including overtime if the job in question provided overtime pay. Those government employees who worked their way up into a managerial post or those who were employed in a public safety position such as a policeman or prison guard or firefighter are entitled upon retirement to a pension calculated according to a more generous pension. Depending upon which city, county or agency the employee works for, a government manager/department head, policeman, fireman or prison guard can pull a pension that is equal to either 2.5 percent, 2.75 percent or 3 percent times the employee’s highest salary times the number of years employed by a governmental entity.
Government employees who start out as regular line employee but who promote into a management position see the formula applied for management employees applied to the entirety of their years of employment, such that the higher managerial multiplicand is used for all years they were employed, even those when they were working in a regular line employment capacity.
In San Bernardino County, in 1990, sheriff’s deputies and higher ranking officers were eligible to retire at the age of 60, at which time they would receive a pension equal to 2 percent times the deputy’s/officer’s highest annual salary times that employee’s number of years working for a governmental entity. Subsequently, the ritirement age was reduced to 55. Then the multiplicand was increased to 2.5 percent. Then it was increased to 3 percent. The retirement age was dropped to 50.
At present, there are 69 retired former San Bernardino County employees who are receiving annual pensions in excess of $250,000.
Throughout California among the 422 of its total 482 cities that were incorporated prior to 1980, actuarials show that nearly one quarter of those will be paying their retired employees more than they will be paying their yet-working employees. By 2034, according to those actuarials, two thirds of those 422 cities will have ongoing payrolls that are less than the amount of money in their budgets devoted to paying those cities retirees. By 2037, according to actuarials, all 422 of those cities will be paying people no longer working for them more money than they will be paying those actually working for them.
Already, in example after example among California’s cities and counties, the lion’s share of spending goes to personnel. Over the last twenty years, salaries to current employees and pensions to former employees have eaten up more and more of the funding that would have been otherwise available for public works and capital improvements, the provision of new and maintenance of old infrastructure and the purchase of new equipment and vehicles.
This circumstance has come about as a direct result of the increasing political sophistication and accompanying sheer ruthlessness of those public employees and more particularly public employee unions, as government employees have united in the vectoring of electoral force when it comes to putting candidates favorable to public employees and their collective bargaining units into political office. By pooling union dues and concentrating that money into the coffers of the public employees’ unions’ political action committees, those unions have made massive donations to elected officials, who then, with better than 97 percent frequency, vote to approve pay and benefit increases for public employees. Generally, with only a small sliver of exceptions, public employee unions support incumbent officeholders at election time. When those unions do not support incumbents, it is overwhelmingly the case that the opposition came about because those politicians opposed or resisted the terms sought by the unions in the collective bargaining process. Statistically, something slightly less than 3 percent of politicians in office throughout the state have made a consistent record of opposing the final union contracts approved with employee unions in their jurisdictions/agencies. Despite the consideration that such intransigence on the part of those elected decision-makers is ineffective because the balance of officials in their jurisdictions prove amenable to the unions’ demands, the unions nevertheless target them for removal from office, running campaigns against them by means of television, radio and newspaper ads or mailers or by making donations to their opponents.
As a consequence, governmental entities up and down the Golden State, including San Bernardino County, have found themselves unable to make ends meet. A recurrent solution that counties and cities have forged in response to this has been to, as stealthily as is possible, engage themselves in a colossal paradox by which they opt out of paying for a significant part of the provision of essential public services, a function that is at the core of government’s reason for existence.
Indeed, the service that government has for years now been opting out of paying for directly and instead financing through double taxation of the citizenry is fire protection.
In California, cities and counties are allowed to create subsidiary financing districts, ones which create a revenue stream for any of a variety of purposes, from park maintenance to parkway landscaping to providing street lighting, making public improvements or constructing infrastructure. Over the last two decades, as revenues have tightened up and the demands on them, driven in large measure by higher and higher salaries and benefits paid to governmental employees, creative county and municipal finance managers turned to an option of reinventing/realigning their fire departments in a way that they were no longer departments, but districts, ones that had newly created financing mechanisms that were quasi-independent of the government agencies, such that the fire protection function traditionally carried out by the departments was still, to a point, under the umbrella of those cities and counties but at the same time separate. They were no longer fish exactly, nor were they quite fowl. Those called upon to augment the funding were the taxpayers. And government officials would cleverly get the consent of those taxpayers to foot the bill in such a way that they would not know what they were consenting to.

Under the California Constitution and voters’ passage of Proposition 218 in 1996, any new tax or assessment to be imposed on California residents must be approved by a vote of those to pay the tax. To get around that constitutional requirement government officials devised a strategy which allows a so-called “protest process” to substitute and suffice as an official election to thereby establish an assessment district. In a protest process, each landowner in the jurisdiction where the tax or assessment is to be applied is mailed notice of a one-month “protest period,” during which the county or city will accept letters protesting the creation of the assessment district. Each such letter in protest that is mailed to the county or city is then tallied as a vote against the annexation and assessment imposition. Each landowner who does not deliver a letter of protest is deemed to be in support of the annexation and assessments being levied, and a vote ratifying the creation of the assessment district and imposing the tax is cast on the landowner’s behalf. Under the rules applying to a protest process, if more than half, that is at least 50 percent plus one, of the landowners protest, then the creation of the assessment district is voided and the tax or assessment is not imposed. If more than 25 percent but less than 50 percent of those notified landowners offer a protest, then the governmental entity proposing the assessment district creation must hold a traditional election in which the vote would have been made at polling places or by mail, allowing landowners or residents at large to cast ballots containing a straightforward yes or no question as to whether the district should be formed and the tax collected. In virtually every case where a protest process has been used in California, the formation of the assessment district at issue and its accompanying tax has been approved. A significant percentage of those receiving the unsolicited notification perceive it as junk mail and discard it without reading it. The vast majority of citizens/parcel owners who do open the notification do not understand or appreciate its implication or feel motivated to respond.
In 2006, residents in the unincorporated desert communities of Silverlakes and Helendale, seeking a level of public safety service beyond what the county was providing with its fire department, voted to approve what was designated as Fire Protection District 5, referred to as FP-5 for short, to defray the added cost of providing enhanced fire and paramedic service to a 5.6-square mile area overlaying the two towns in which they lived by having a certified medical technician aboard the firetrucks in that neck of the desert.
Between 2014 and 2017, the cities of San Bernardino, Needles and Upland, as well as the Twentynine Palms Water District, put off by the rising costs of maintaining their cities’ fire departments, sought to dissolve their departments and have the county fire department take on the responsibility for fire protection. In accommodating those requests, the county coordinated with the San Bernardino County Local Agency Formation Commission and arranged, in addition to having those cities hand over a part of the property tax they had historically been receiving to the county, for a protest process so that FP-5’s borders could be extended to include those cities. As was expected, there was insufficient reaction against, i.e., protest of, the district expansion to prevent it from occurring. As a result, homeowners and parcel owners in the four cities found themselves paying what initially were, depending upon the date they were annexed into FP-5, $147 to $153 yearly assessments, subject to a 3 percent per year increase.
Seeing the ease with which four of the county’s cities were subsumed by FP-5, prompted county officials to latch onto the concept taking the money-generating potential of a fire assessment district  – namely FP-5 – to its logical conclusion. Why not, they asked, expand FP-5 to include all of San Bernardino County’s unincorporated areas, those areas outside the city limits of the county’s 19 cities other than San Bernardino, Twentynine Palms, Needles and Upland? When the board of supervisors was briefed at just how much money would be generated to provide operating capital for the fire department and thus relieve the county’s general fund of a corresponding monetary burden, they were all for it. In short order, again consulting with the San Bernardino County Local Agency Formation Commission, which is a creature of the county, the board scheduled a protest vote with regard to placing 19,078 of the county’s 20,105 square miles – equal to 94.89 percent of the county’s area within FP-5.
When some of those who were paying attention objected to what was about to happen by pointing out that those residents of the county’s unincorporated areas already were paying property tax that was supposed to cover the cost of the governmental services they were receiving and that for more than a century or nearly so, the residents in all of the county’s unincorporated areas had been provided with fire protection service as a consequence of the county government’s normal function, then-County Fire Chief Mark Hartwig asserted that the traditional methods of taxation and revenue generation for local government were no longer adequate to ensure the county fire department was sufficiently manned, outfitted and prepared to ensure the public safety. “Most of the sustainable districts that I’m aware of, and I do quite a bit of work throughout the state, don’t solely rely on property tax revenue,” Hartwig responded when some residents complained about the ploy to subject them to double taxation. “They rely on some other type of revenue.” The use of such funding strategies was being implemented elsewhere, Hartwig said, and residents of San Bernardino County’s unincorporated areas would simply need to adjust to that means of keeping government afloat being applied to them.
In October 2018, after the county had mailed notifications to all of the landowners in the county’s unincorporated areas as well as to those in the areas already absorbed into FP-5 and the one-month response deadline had elapsed with just 3.2 percent of those eligible to provide letters of protest having done so, the expansion was officially effectuated by action of the board of supervisors. Just like that, $157.26 per year assessment on all parcels in the unincorporated areas of the county were in place, calculated to add $26.9 million dollars per year in revenue to the county’s fire protection division. Overnight the San Bernardino County Fire Department became the San Bernardino County Fire District.
Meanwhile, however, the Red Brennan Group, a coalition of government reform activists, had, just before the county signed off on the annexation, sued the county in an effort the FP-5 expansion from going through. That attempted road block joined up with one that had been perpetuated by a group of landowners in San Antonio Heights, an unincorporated 2.619-square mile community that adjoins Upland. San Antonio Heights had been rolled into the 2017 FP-5 annexation of Upland, much against the San Antonio Heights residents’ wishes. Approaching 90 percent of the landowners there had mailed in letters of protest. Nevertheless, the Local Agency Formation Commission had lumped San Antonio Heights together with Upland for the purposes of the protest process and when the total of protest letters from both San Antonio Heights and the much larger and heavily populated Upland was put into a ratio of the landowners in both jurisdictions overall, the percentage was not high enough to prevent that annexation from occurring or even to force the matter to be decided by a traditional ballot vote.
As it would turn out, the San Antonio Heights Homeowners Association prevailed in its lawsuit, which effectively threw the Upland/San Antonio Heights annexation into jeopardy. The county, however, maneuvered out of that path toward perdition by pushing forward with the October 2018 FP-5 annexation, which redid the Helendale, Silverlakes, Twentynine Palms, San Bernardino, Needles, Upland and San Antonio Heights annexations and added in the annexations and added in the remaining unincorporated county areas to boot.

The Red Brennan Group’s lawsuit against the county sputtered out as well. Still undaunted, the Red Brennan Group determinedly went out and gathered a sufficient number of signatures from registered voters living throughout the areas of the county that had been annexed into FP-5 to force the county to place on the November 2020 ballot a measure, designated by the county registrar of voters as Measure U, asking voters within the FP-5 Assessment Zone if they wanted to repeal the enlargement of FP-5 and end its taxing authority. In qualifying the measure for the ballot, the Red Brennan Group overcame a stumbling block county officials had set in its path. The office of county counsel, the stable of in-house county lawyers acting on behalf of the board of supervisors, insisted that the activists obtain 27,303 signatures from among the voters in the county’s unincorporated communities, which was over 37 percent of the 73,526 Fire Protection Zone 5 voters who had taken part in the November 2018 gubernatorial election. Making a  Herculean effort, the Red Brennan group obtained the number of signatures the county insisted upon, finding out later through legal action that the actual standard should have been ten percent of the voters in the assessment zone who had participated in the 2018 election – 7,353.
After surmounting that challenge, the Red Brennan Group in its campaign promoting Measure U asserted the protest process was a backhanded method of securing support for FP-5’s expansion. The county’s firefighters’ collective bargaining unit, San Bernardino County Professional Firefighters Union Local 935, together with some deep-pocketed supporters of members of the board of supervisors, funded and ran an energetic campaign against Measure U, one that emphasized the importance of keeping fire suppression capability throughout the far-flung county in a tip-top state of readiness. In support of that campaign to convince the FP-5 district’s voters they should opt to stay within the district, 117 firefighters and emergency medical technicians/paramedics with the San Bernardino County Fire Department, through the union, chipped in $126.75 each to the No on U independent expenditure campaign as did 36 of their firefighting brethren employed with the Colton Fire Department and 35 firefighters with the Big Bear Fire Department. Another 22 firefighters or emergency medical technicians with the Loma Linda Fire Department put up $139.50 each and eight firefighters from the Montclair Fire Department gave $118.50 a piece. Functioning in an independent expenditure committee capacity, San Bernardino County Professional Firefighters Union Local 935 poured $139,384.85 into the No on U campaign. Ultimately, in the November 2020 election, Measure U was defeated, with 109,483 votes or 47.97 percent in favor of it and 118,772 votes or 52.03 percent against it.
After licking their wounds, members of the Red Brennan Group regathered themselves and in 2021 again set to work, gathering enough signatures on petitions to again place the FP-5 ratification issue before the voters, qualifying a referendum for the June 2022 primary. That initiative, designated Measure Z, called for liberating all of the county other than Helendale and Silverlakes from inclusion in FP-5 and the imposition of its fire protection tax, which at that point had risen to $161.98 per parcel per year.
Having submitted the petition for the measure through five of its citizen members in October 2021, the Red Brennan Group was heartened when in December 2021, the registrar of voters certified the number of signatures on the initiative petition as sufficient to qualify the initiative for the June 7, 2022 ballot. On January 11, 2022, the San Bernardino County Board of Supervisors, being bound by the California Government Code, voted to place the initiative on the ballot and to consolidate the election with the June 7, 2022 gubernatorial primary election.
Prior to doing that, however, the board of supervisors began casting about for a way in which the county could act procedurally or legally act to prevent the vote on the initiative from taking place. On February 8, 2022, the board of intentionally made false statements concerning the contents, purport or effect of the initiative petition supervisors had the Los Angeles-based Sutton Law Firm and three of its attorneys, Bradley Hertz, James Sutton and Nicholas Sanders, file a petition for a writ of mandate, asserting the measure should be withdrawn from the ballot because in circulating the petition, the Red Brennan Group and its members had violated the “full text doctrine” principle contained in California law regarding voter initiatives when they did not provide those signing the document copies of reports by then-County Fire Chief/Fire Warden Pat Dennen and San Bernardino County Fire Chief/Fire Warden Dan Munsey which would have provided background information about FP-5 and their recommendations that it remain in place. The writ further alleged the proponents of the measure had provided those who signed the petitions “materially false and/or misleading information” relating to FP-5.  The matter was heard by San Bernardino County Superior Court Judge David Cohn.
Judge Cohn, while rejecting Hertz’s, Sutton’s and Sanders’ contention that the petition circulated to county voters violated the “full text doctrine” principle, yet made a finding that the Red Brennan Group’s claim that imposing the tax through a protest validation rather than a normal vote of the people to pay the tax was inconsistent with the California Constitution was inaccurate. Technically, according to Judge Cohn, the protest process, as was used in the expansion of FP-5, constitutes an opportunity of those to be impacted by the tax to vote, and is thus an election.
Despite Cohn’s ruling, it came too late for the ballots for the June 2022 election, which had already been printed, to be changed out. Measure Z appeared on the ballot and was voted upon by the residents of the FP-5 zone who participated in the election. Prior to the election, Judge Cohn stated that the Measure Z would not apply if it passed. The tally of the vote from the June 2022 gubernatorial primary showed that Measure decisively passed, by a margin of 42,015 votes or 58.43 percent in favor to 29,888 or 41.57 percent opposed.
The Red Brennan Group appealed Judge Cohn’s ruling that its contention that substituting a protest process in which it is incumbent upon the “voters” to write and post a letter in order to enter a vote against the tax for an actual vote involving ballots and polling places does not meet constitutional standards or the intent of Proposition 218 was factually false. With the matter yet tied up in the California Appellate Court, the Red Brennan Group decided that rather than wait for a decision regarding what had been voted upon in 2022, it would again gather a sufficient number of signatures and refile for another measure to be presented to voters this year. Enough signatures were gathered to satisfy the registrar of voters and what is now designated as Measure W is on the ballot for the March 5 California Primary Election.