By Edna St. Vincent Millay 

The Sentinel is reliably informed San Bernardino County Supervisor Janice Rutherford and San Bernardino County Assessor Bob Dutton have hatched a plan to effectuate what they both believe will be an exchange between them of their current posts with the 2022 election.
Rutherford’s exit as supervisor in another three years is necessitated by the term limit requirement on supervisors put into the county charter as a consequence of the 2006 passage of Measure P, which was sponsored by then-Second District Supervisor Paul Biane as a means of increasing the salary of each of the members of the board of supervisors from $99,000 per year to $151,000 per year at that time. As part of the strategy of selling the measure to the voters, Biane and his two closest political associates, Matt Brown and Tim Johnson, incorporated into the measure a term limit provision that reduced the number of times an individual could serve on the board to three four-year terms.
Biane, a one-time Rancho Cucamonga councilman who had first been elected to the board of supervisors in 2002 and thereafter went on to become first the vice chairman and eventually chairman of the Republican Central Committee as well as of the board of supervisors, in 2006 had ambitions for higher office beyond supervisor, but was looking to remain in the office he then held at least until another realistic opportunity for gaining election in the California legislature or Congress presented itself. Because Measure P was not applicable prior to its passage, Biane’s first two terms on the board did not fall under the term restriction, and therefore he was eligible to run for Second District supervisor again in 2010, 2014 and 2018.
Four years after the passage of Measure P, Biane in 2010 sought reelection. He had, however, been severely damaged by the political scandal then enveloping Bill Postmus, a former member of the board of supervisors who in 2006 had successfully run for county assessor. Biane’s close affiliation with Postmus, including during the crucial 2004 to 2006 time period when Postmus was chairman of both the board of supervisors and the San Bernardino County Republican Central Committee and Biane was the vice chairman of both the board of supervisors and the San Bernardino County Republican Central Committee, redounded to his detriment. In the June 2010 primary, he managed to outdistance his main challenger, then-Fontana City Councilwoman Janice Rutherford, 14,184 votes to 13,169 votes, but with four other candidates in the race, Biane’s total accounted only for 34.18 percent of the vote, and he was forced into a run-off against Rutherford, who had claimed second place with 31.74 percent.
Over the next five months, more and more details with regard to the Postmus scandal emerged, and Rutherford was not bashful about using those revelations in her campaign against Biane. Ultimately, in the run-off between them held in conjunction with the November 2, 2010 general election, Rutherford prevailed 44,166 votes, or 51.81 percent to Biane’s 41,086 votes or 48.19 percent.
In 2014, Rutherford was reelected handily in a contest against Randolph Beasley. That same year, one-time Rancho Cucamonga Councilman Robert Dutton, whose time on the city council had corresponded with that of Biane and who went on to serve as a California assemblyman from 2002 until 2004 and then served eight years in the California State Senate from 2004 until 2012, vied successfully for San Bernardino County assessor/recorder.
In 2018, Dutton was unopposed in the race for assessor/recorder. Rutherford faced a stiff challenge from then-40th District Assemblyman Mark Steinorth. Rutherford emerged victorious, with 30,705 votes or 53.26 percent to Steinorth’s 26,943 votes or 46.74 percent.
Both Dutton and Rutherford are entrenched members of the San Bernardino County Republican establishment. Though neither the assessor/recorder post nor Dutton are constrained by term limits, making him eligible to run for reelection as assessor in 2022 and beyond, he is now 69 years old, making it advisable for him to make a move toward becoming a supervisor at the earliest opportunity, before he is well advanced into his eighth decade of earthly existence. Moreover, those around Dutton believe he has adequate money banked in his political campaign war chest and fundraising capability beyond that, along with name recognition, to ensure his viability as a candidate for supervisor.
The county assessor’s position pays $233,021.71 in annual salary and $89,732.68 in benefits, for a total annual compensation of $322,754.39. The county supervisor’s post provides at present $174,262.24 in salary, $18,373.95 in other remuneration and $70,977.96 in benefits for a total annual compensation of $263,614.15 annually.
While Dutton would see a reduction of nearly $60,000 in his total annual compensation by leaving the assessor’s office and would also be giving up the position of being the county’s highest taxing authority, a post with both prestige and a certain degree of leverage with regard to enhancing his political fundraising ability, Dutton has already served in the state legislature and is termed out as a state senator. Though he could yet run for the Assembly or Congress, his ambition for that level of higher office appears to have been sated, and the position of county supervisor would allow him to remain local without having to travel regularly to Sacramento or Washington, D.C., and occupy a position of prominence and far-reaching power. It would also allow him to install John Mannerino, Dutton’s longtime business and political associate, into the high-paying position of his chief-of-staff.
Dutton and Rutherford believe that their endorsement of each other for the supervisorial and assessor posts will capture the mutual support of the other’s backers, enhance their electability and head off at least some of the competition, making each the odds-on favorite to capture the posts they covet.
Some see in Rutherford’s and Dutton’s ambition of monopolizing high ranking governmental positions between them a clash with the Republican values they espouse. Ideological purists with the GOP advocate for limited government and seek from politicians empathy with and an understanding of the rigors and travails of entrepreneurship, the difficulties and challenges of running a business, particular in an environment beset with what some or most Republicans consider to be excessive governmental regulation and taxation. While Dutton earlier in his life was a businessman involved in several of the companies established on the west end of San Bernardino County by his father, Ted Dutton, he has for more than 20 years, with the exception of the 2012-to-2014 gap, largely been a creature of the government. Rutherford can lay claim to nothing even approaching Dutton’s status as a successful entrepreneur, with her most celebrated venture in the private sector having resulted in abject failure, with vendors and employees having been stiffed for more than $100,000 when the enterprise she had undertaken with her husband went bust. Her résumé and work history largely feature employment with government entities or affiliations in some fashion involving government. The most noteworthy of these assignments other than those elected positions she has held pertain to her employment in the office of Bill Leonard, a former California state senator and member of the California Board of Equalization. As an institutional government employee, in particular one who has gravitated toward higher-paying assignments including ones in which her authority extends to setting the pay grades for government employees as well as herself, and her thereby demonstrated uncommon degree of generosity with taxpayer funds, Rutherford has come to be resented by a contingent of Republican kindred as someone largely out of step with their values and interests.
While both Rutherford and Dutton are in no hurry to have their backroom agreement to trade county offices and support each other in their respective upcoming 2022 campaigns spread before the general public, a number of other county politicians know about the arrangement, including some of those who are themselves interested in the Second District supervisor’s and county assessor’s posts.
The Second District encompasses the northern two-thirds of Upland, all of Rancho Cucamonga, the westernmost portion of Fontana and the unincorporated communities of San Antonio Heights, Mt. Baldy, Lytle Creek, Devore, Rim of the World, Crestline, Lake Gregory, San Moritz, Lake Arrowhead, Blue Jay, Cedarpines Park, the Valley of Enchantment and Green Valley Lake.
State Senator Mike Morrell has designs on the Second District supervisor’s office, as does former Assemblyman Marc Steinorth, who ran a strong campaign against Rutherford last year. In addition, Ken Petschow, an airline pilot and San Antonio Heights resident who declared his candidacy for Second District supervisor in 2018 but withdrew without filing nomination papers after Rutherford made a commitment of future political support if he would step aside, may seek to cash that chit in come 2022. Were Petschow to do so, it would put Rutherford in an awkward position, as she could not make good on that promise and fulfill her pledge to Dutton at the same time.
One of Rutherford’s current board colleagues, Josie Gonzales, who like Rutherford was once a member of the Fontana City Council, will term out of office next year. She, too, is said to be interested in running for assessor in 2022. Rutherford’s successful reelection effort in 2018 very nearly depleted her campaign treasury. This is in contrast to Gonzales’s campaign fund, which at present exceeds $800,000.
-Mark Gutglueck

This morning, the scheduled sentencing of Charles Merritt on his convictions in June of killing all four of the members of the McStay family in 2010 was postponed until December 13.
After a five-month trial, the jury in the matter on June 11 convicted Merritt, 62, of the first-degree murders of his one-time business associate Joseph McStay, then 40, McStay’s then-43-year-old wife Summer, and the couple’s two children, 4-year-old Gianni and 3-year-old Joseph, Jr.
Phone records and computer activity placed the family at their Fallbrook home on the evening of February 4, 2010. A call placed from Joseph McStay, Sr.’s cell phone at 8:28 that evening to Merritt was the last indication that the family was alive. Thereafter, all phone activity from Joseph, Sr., who was a prolific user of his cell phone, and Summer ceased.
The family had inexplicably vanished, with the only trace seeming to be what many interpreted as the family’s departure to Mexico, as the family vehicle was found abandoned in a mall parking lot less than a half mile from the international border in San Ysidro on the night of February 8, 2010, and a grainy video taken by a camera trained southward from the American side of the pedestrian crossing into Mexico at San Ysidro that evening depicted a family of four – a man, woman and two small children – seen from behind as they headed across the border.
The family was never heard from again. In November 2013, the corpses of three of the family members – Joseph Sr., Summer and Gianni – were found in shallow graves in the desert between Victorville and Oro Grande. Joseph, Jr.’s body had been unearthed by animal predators, and only minute remnants of his bones were found scattered in the area.
The gravesite was some eight miles from where Merritt had spent much of his adolescence in the 1970s, when he attended Apple Valley High School for three years.
Investigators gathered evidence and arrested Merritt in November 2014, just shy of one year after the bodies were found. Prosecutors assembled an entirely circumstantial case against Merritt based upon oftentimes sketchy evidence, including a poor quality video from a neighbor’s security camera of a vehicle which sheriff’s department investigators and prosecutors maintained was Merritt’s work truck leaving the McStay residence in Fallbrook at 7:48 p.m. on the night of February 4, 2010. Defense attorneys Jim McGee, Raj Maline and Jacob Guerard, however, contested that suggestion. The photogrammetrist the district attorney’s office first hired to evaluate that evidence and present findings the prosecution believed would unequivocally demonstrate Merritt was present at the McStay home when the family was killed, the world’s leading expert on photographic and visual analysis, Dr. Leonid Rudin, came to the opposite conclusion, offering testimony to indicate the vehicle in question was not Merritt’s truck.
Despite that setback for the prosecution, it was able to present evidence demonstrating that Merritt had written himself checks on Joseph McStay’s business account in the days just before, the day of and the days after the family’s disappearance, the last two of which were backdated to February 4, 2010. Merritt was also demonstrated to have called the customer service desk for QuickBooks, an accounting software company, on February 9 and February 10, 2010, identifying himself as Joseph McStay and attempting to have data relating to Joseph McStay’s business account electronically purged. The prosecution further presented cell phone account data to show that Merritt was in the High Desert on February 6, 2010 using his cell phone late that morning and early afternoon while his phone was making contact with a cellular service tower high on a mountain overlooking the expanse of desert where the graves were located. Prosecutors maintained that Merritt was burying the family on February 6, 2010.
After finding Merritt guilty of the murders of the entire family, the jury delivered sentencing recommendations of life without the possibility of parole for the killing of Joseph McStay, Sr. and death for the murders of Summer, Gianni and Joseph, Jr.
It was widely anticipated that the defense team would file motions for a reduction of the penalties from death to life without the possibility of parole as well as motions for a new trial and an appeal of the verdicts.
Such motions did not materialize, however, and upon taking up the matter this morning, Judge Michael A. Smith heard that both McGee and Guerard wanted to be relieved as Merritt’s counsel. The rationale for Guerard’s request was not provided. McGee claimed some order of a conflict in representing Merritt going forward. Maline stated, “I don’t feel I have a conflict,” but asked for a postponement in the sentencing because, he said, the substance of the motions to be made on Merritt’s behalf “deals with a lot of the work that was done by Mr. McGee.”
At that point, McGee, Guerard and Maline accompanied Merritt into a private conference with Judge Smith in his judicial chambers.
They subsequently emerged, at which point Judge Smith said, “There is a conflict between Mr. Merritt and Mr. McGee that would keep Mr. McGee from representing Mr. Merritt.”
Accordingly, Judge Smith said, he was going to grant a continuance for the defense team, giving it “time to investigate where they need to go. None of the motions have been filed, so the defense does need additional time to file motions for a new trial and to reduce the sentence. We tentatively discussed going over to December 13 for a hearing on any post-conviction motions and sentencing.”
Judge Smith then said he would hold an in-camera “conference on whether or not Mr. McGee should be relieved on November 1 at 1:30.” Judge Smith said that exchange would deal with “any issues to be addressed and whether there is a conflict, and Mr. McGee should be relieved. Mr. Merritt is entitled to a conflict-free counsel.”
Judge Smith, without divulging what had been said during the in-camera exchange in his chambers, offered a tantalizing glimpse of what might have been at issue when he alluded to “pitting one counsel against another. That is a concern if we reach the point where Mr. McGee says, ‘Despite whatever the discussions are, I feel I have a conflict and cannot continue.’”
Judge Smith said, “I believe we need to at least examine or address that issue, whether Mr. McGee can continue.” He noted that McGee and Maline are no longer law partners and that since “they are different offices and practices, that might not be as much of a problem.” While the judge hinted that some differences may have arisen between McGee and Maline, he did not state so explicitly.
Supervising Deputy District Attorney Britt Imes, who headed the team prosecuting Merritt that also included Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez, objected to the delay, saying the verdict had been rendered this spring and the defense had “three months to sort out these issues. This delay is excessive and unnecessary.”
“I agree,” Judge Smith said. “I was surprised that at a minimum the motion to reduce the sentence had not been filed. Yet, for Mr. Merritt the issue is Mr. McGee’s ability to participate in those motions and that is one reason for the delay. There is not an indefinite period that they get to do that. While regrettable, I think it is necessary.”
Judge Smith ordered the defense to have its motions filed by November 22 and a response from the prosecution to be filed by December 9. A hearing on the post conviction motions is to be heard on December 13 at 8:30 a.m.
As he took leave of the courtroom, McGee declined to provide any statement to the Sentinel with regard to what constituted the conflict.
After the hearing, an individual close to the defense told the Sentinel that McGee believed “heart and soul with no wavering” that the alternative suspect in the killings the defense had presented at trial, “Dan Kavanaugh, was involved directly or orchestrated the murders and that Chase had no involvement whatsoever.”
McGee had dedicated more than a year of his life to preparing for the trial and in representing Merritt during the trial, the individual said. “He was staggering under the workload and lack of pay. He has better things to do, now that the trial is over and it’s not his bailiwick anymore.” It was suggested to the Sentinel that McGee, who was a prosecutor for most of his career before becoming a defense attorney, may be contemplating a run for judge, and that is what the conflict stems from, as the 2020 election year is approaching.
-Mark Gutglueck

On the day that Brezhnev died

I dug and furrowed in my garden

A windswept but warm fall day

Planting radishes for a winter harvest

On my hands and knees I toiled

The blue cloud swirled sky above me

Cast shadows I barely noticed

As I plied the fertile California soil

The birds heading south seemed

Perhaps to me to be Arctic gulls and

Cars traversed the streets of Moscow as usual

On the day that Brezhnev died

                                 November 10, 1982

I WAS HITCHHIKING OUT THE RAMONA EXPRESSWAY, standing to the side of some eucalyptus trees. The sun was slight summer south, so I was full under it. I stood there near an hour after I was left off by this guy pulling a set of hay barges. Alfalfa he was carrying, the sweet-smelling kind they grow in those drained marshes out near the lake.

It was past noon and pushing one o’clock, with the sun getting hotter and hotter, beating down on my head. I told myself, if none of the coming line of cars stopped, I was going over to the shade on the other side of those trees to lie down and take a nap until it got cooler. The first one of the bunch pulled right over when he saw me though, off onto the shoulder, blowing dust and all, a blond guy in a pickup truck. I climbed in. He looked to be about my age, with the sun glaring in his face through the windshield. He wore glasses. He waited for the last of the cars that had been behind him to pass, and he pulled out onto the roadway. “I’m Larry,” he said.

He continued out Ramona west, the wind tearing in through the side windows, wrapping my hair all around my head, slapping my ears and eyes and neck. Larry passed all the cars that had gotten ahead of him when he stopped for me. When we passed the first one in line he gave it a long lookover in his rearview mirror. We traveled on another eight or nine miles, the dairies and pastures streaming by with the mountains and the lake in the distance. In all that time we didn’t talk. He had given me his name and that was it. At first I tried to think of something to say, something that would sound natural. I couldn’t, so I just watched the scenery. I’ve been out the Ramona Expressway a hundred times, more than that probably, but I never paid attention to everything out that way like I did then. I noticed lots of things I had never seen before, like moss backing on old fence posts and water flowers in the watering holes and troughs near the mangers. I felt that comfortable in that truck.

We’d gone through Seedwood, and just past the hills where the Indians had their watering holes long before white men were sinking wells in California. Larry broke our silence to ask me where I was headed. I came away from trying the quickness of my vision on the gold and blue butterflies the truck missed to tell him the other side of Dry Dollar Lake. He said he had to stop and pick something up about a mile ahead, but that he was continuing out to Watershed Falls. I said sure, anything that would get me that close.

A ways further he slowed down and turned off into a dirt road. It was fairly smooth as dirt roads go, and the few bottom-threatening dips there were Larry handled with a familiar ease. When I looked behind I could see his wheels churned up only a little dust. The dirt road continued for a parched distance, inclining to pass over a low bluff with green but still sparse chaparral along the ridge. Then we were heading down into a narrow arroyo, and the truck bounced and swayed side to side. At the bottom a slight streambed began alongside the road and continued beside for the length we went. There was only the hint of a stream in it though, nothing more than a trickle.

Visible in the distance was a wooden house, a cabin, around which were set other slight structures, shadow grey against the bright gold scape. In closer I could see they were wooden shacks higher or near as high as they were long, a few smaller sheds, and chicken coops. A station wagon was parked in front of the cabin. There were trees further off, healthy ones, close together, but not quite a grove.  The few treas near the house were stark, mostly leafless. The cages close enough for me to see were empty, though here and there a hen scurried, scratched and pecked at the dry earth.

Larry pulled in close to the house, to the side of the station wagon. He said he just had to pick something up, but I could come in for a drink of water. As we were stepping up onto the wood porch side by side with a few of the hens clucking behind us a young woman with a baby in her arms opened the cabin door. She was half turned, saying goodbye to someone inside. We waited for her to come out, and she stepped straightaway for the station wagon, sending Larry a nod. We went into the cabin.

Across the room was a woman in a wheelchair. My being there didn’t take her aback any. She addressed herself straight off to Larry. “I told her to go and get that money out of the bank right now,” she said. Larry offered no reply.  Outside the engine started and then I could hear the tires turning out on the earthen driveway. “I told her to go and get that money out of the bank afore he dies.”

Larry seemed to be not listening to her, and he pointed across the room to the faucet. “Over there. There’s some glasses in the cupboard,” he said.

“It’s not his money,” the woman continued. “She should get it before the State does.”

“I know all that, Mother,” Larry said. There was a tinge of anger in his voice. He started into the adjoining room.

“She should get that money out of the bank right now,” the woman repeated.

I went to where Larry had directed me, at the far side of the room. The faucet was built over a wooden sink. I had to pump a side crank to prime up the pressure in the line. The woman rewheeled and was regarding me in shifty looks up and down. I didn’t look her way back, just got a tall glass and filled it. I came away a few feet from the sink and still didn’t look right at her, but out the window beside the door we had come in. The station wagon climbed the last of the slope to the narrow gorge at the crest and then disappeared over the other side. The water, so deep cold it like froze my throat, tasted clean as from a mountain spring in June.

Larry came out from the other room with a tool box. He set it down heavily onto the counter and went straight to looking in one of the drawers beneath the counter for something more. He popped up the tool box lid and set something in it, a screwdriver or something, and shuffled some more in the drawer and then in another. “Where’s that flashlight?” he asked.

The old woman wheeled herself back and then around the table, then reached behind the sofa. I had a real clear look at her then, when she was looking to the side and when she was handing the flashlight to Larry. You could see she was his mother alright. Their hair was the same flaxen, except hers had grey in it, and their eyes were keen blue, like Texas Germans. She told him not to lose it, the electricity was always going out.

He set the flashlight under the top tray and closed the toolbox  back up. I set the empty glass on the wooden drainboard and followed him out. We got in the truck and drove back out to the expressway with the  tool box rattling and sliding on the seat between us at the sharper bends in the road.. We never passed the station wagon in all the six or seven miles he took me out further west like I thought we might. We didn’t say anything either, just drove. He let me off just above the flood control dam at the turnoff to the hatchery. A little more than an hour later I got another ride to where I only needed to walk about a mile to the trailhead for the cabins. I was back before four.

The exuberance of the new season is coming together.  Everywhere I can see people wearing autumn colors. It’s a reflection of  grapes,  and pumpkins of the farmers’ markets. Autumn in California sparks many ideas specially when it comes to clothes. In California we love comfort and autumn is all about cozy. This week’s piece is the Utility Pants. What’s great about it? Much! They’re comfortable and just like jeans they are easy to style. Another great thing is you can start off casual and work them up. You can pair them with a blazer and pumps, or sneakers, and cardigan. The topper is if you’re bored with jeans leave it to the cargo to liven up your wardrobe.

“Style is the only thing you can’t buy. It’s not in a shopping bag, a label, or a price tag. It’s something reflected from our soul to the outside world—an emotion.”  – Alber Elbaz

By clicking on the blue portal below, you can download a PDF of the September 20 edition of the San Bernardino County Sentinel.

Sentinel 9-20-19

Reaching a conclusion that the four-fifths strength San Bernardino County Board of Supervisors late last year violated California’s open public meeting law, the Brown Act, Superior Court Judge Janet M. Frangie this week voided the now nine month-old appointment of Dawn Rowe as Third District county supervisor.
Judge Frangie’s ruling, which included an order that Rowe forthwith be removed as supervisor and that responsibility for the appointment be taken up at once by the governor, threw San Bernardino County’s governmental and political establishment into a temporary tizzy. The following day, Thursday, September 19, the county appealed Frangie’s ruling to the Fourth District Court of Appeal in Riverside, buying what most top county officials hope will be a six month-or-more-long delay during which Rowe will remain in office, at which point the 2020 California Primary in which she is vying for election will take place, allowing her to run as an incumbent rather than a candidate who has been bounced from office as the result of a legal challenge.
San Bernardino County remains as one of the last bastions of the Republican Party in California, where elected officeholders aligned with the GOP yet outnumber Democrats in office, a function of significantly higher Republican voter turnout despite increasingly lopsided voter registration numbers favoring the Democrats countywide. Rowe, a Republican, was selected to replace James Ramos, a Democrat and the elected incumbent Third District supervisor, after Ramos resigned from the position to accede to the California Assembly after he successfully vied for that position in the 40th Assembly District in the November 2018 election. Supervisors Robert Lovingood and Janice Rutherford, both of whom are Republicans, advocated heavily for Rowe’s appointment.
The the board on December 10 winnowed the field of 48 qualified applicants to 13, consisting of former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Yucca Valley Councilwoman Dawn Rowe, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby. Twelve of those 13 were Republicans, with Dailey being the only Democrat.
At a specially-called meeting on December 11, all of them were interviewed publicly.  During the public comment portion of the  meeting which preceded the interviews, Ruth Musser-Lopez protested the secret polling among the supervisors that had taken place the previous day and had reduced the 48 applicants to the 13 candidates being considered. She characterized that as a violation of the Brown Act. After the interviews that ensued, the board reduced the field to five Republicans: Emmerson, Flynn, Jahn, Rigsby and Rowe. Those five were invited back for second interviews on December 13.
Musser-Lopez on the evening of December 11, fired off a letter to the board and County Counsel Michelle Blakemore through the clerk of the board, reiterating her objections in writing, and labeling it a “complaint.” In the letter, she asserted, “On December 10-11, 2018, you the members of the county board of supervisors in concert and individually violated the Ralph M. Brown Act specifically CA Gov. Code, § 54953.5 when you did cast preliminary votes secretly, without a process agreed upon by the public and without publicly disclosing the votes of the individual supervisors to the public.” She said that “the public was left out of the selection process, some applicants were not invited to address the board and were not allowed equal time, and due to the illegal polling, board members knew which applicants were ‘winning’ prior to their vote.” Musser-Lopez said this led to the board members “knowing in advance which applicants were preferred by the other members” and “wrongfully influencing their vote without public knowledge or intervention,” such that “a majority of the board” had been able to illegally “develop a collective concurrence as to action to be taken” and had furthermore engaged in private communications with one another through the use of secret ballots that were tantamount to a “serial meeting,” which is also outlawed by the Brown Act.
Musser-Lopez demanded that the board of supervisors cure the violation by voiding the December 11 vote and voiding “any other serial votes by members of the board of supervisors on December 10 and 11, 2018 and that to be voted on December 13, 2018 pertaining to the selection of a replacement supervisor for the 3rd District.”
When the board convened the morning of December 13, the proceedings lasted a mere 58 seconds and were gaveled to a close by Board Chairman Lovingood, after County Counsel Michelle Blakemore, the county’s top in-house attorney, referenced the Brown Act violation accusations and said, “Our recommendation is that the board take absolutely no action today and that the meeting be adjourned and we will bring an item back on Tuesday for consideration.”
On December 18, the board reconvened to take up the appointment of Ramos’s replacement, picking up where it had previously left off, and conducted second interviews with Emmerson, Flynn, Jahn, Rigsby and Rowe. At the prompting of the only Democrat on the board, Josie Gonzales, the board also consented to hearing from Chris Carrillo, a Democrat, a lawyer and Ramos’s assistant chief of staff in District 3 who had been overlooked previously by the board and had not been among the 13 originally interviewed. The process, which was heavily stacked in favor of Rowe from the outset, concluded after the interviews with the six were completed. Lovingood immediately nominated Rowe. With Curt Hagman, the other Republican on the board, now openly leaning in favor of Rowe as well, an axis in Rowe’s favor that was unbreakable had was apparent. Reading the writing on the wall, and realizing that Rowe’s selection was unstoppable and that she would need to work with her future colleague going forward, Gonzales joined with the remainder of the panel to make Rowe’s appointment unanimous.
Two individuals, both Democrats, objected to the fashion in which the appointment had been made. Ruth Musser Lopez on her own sent the county a letter of protest on December 10 taking issue with the secretive nature of the process and the bypassing of 35 of the candidates. Michael Gomez Daly, acting as the executive director of the Democratic Party affiliated political advocacy group I.E. United, likewise registered an objection to the process. After Rowe’s selection, Musser-Lopez, representing herself, and Daly in concert with I.E. United, filed separate lawsuits, claiming the board had not corrected the violations of the Brown Act, before proceeding with its selection of Rowe.
The suits alleged that supervisors through a series of actions including serial meetings and a secret tallying of the votes they made with regard to reducing the field from 48 to 13, conducted what was supposed to be an inherently public process behind closed doors. Early in the process, the board had agreed among themselves to designate the five candidates they each thought would best fill the Third District vacancy. Any candidate who received two endorsements or more was chosen to be interviewed. That was how the 13 candidates who were interviewed – Rowe, former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby – were selected. In December, when the board was asked who had voted for the 13 candidates, county officials responded to say that then-Clerk of the Board Laura Welch, armed with a list of all of the appointment candidates, simply made a mark beside the name of a candidate when one of the supervisors cast his or her vote in favor of him or her, and that she did so without recording which supervisor was casting each vote.
On December 18 Daly sent the board of supervisors a letter requesting that the board rescind its previous action and reinitiate the process by interviewing all of the candidates. The board, though it voted to withdraw the two lists it had created, the list of 13 candidates arrived at on December 10 and the list of five candidates it had reduced the field to following the December 11 interviews, the board members voted for three candidates each, which resulted in the same list of five candidates. After those interviews, the board acceded to Lovingood’s motion to choose Rowe, resulting in the unanimous vote to appoint her.
One of the issues driving the board was that the county charter and state law involve requirements that the board to fill a vacancy within 30 days based upon whatever selection process it deems fit or otherwise surrender to the California governor the power to make the appointment.
James Ramos had resigned as supervisor on December 3 upon being sworn into his position in the Assembly. In December, Jerry Brown, a Democrat, was governor. Gavin Newsome, a Democrat as well, was sworn in to succeed Brown on January 7. The concern of the Republican-dominated board was that if a decision was not made by it prior to January 2, the decision would fall to either Brown or Newsome, who would most likely appoint a Democrat.
Musser-Lopez’s suit named Lovingood, Rutherford and Hagman as respondents and Rowe as a real party-in-interest. Daly’s lawsuit named Lovingood, Rutherford, Hagman and Gonzales as respondents, with Rowe as a real party-in-interest. Initially, the lawsuits were dealt with separately, with Musser-Lopez’s sent for hearing by Judge David Cohn and Daly’s routed to the courtroom of Judge Frangie. Both were eventually set for trial before Frangie, who subsequently ruled in favor of the county to dismiss Musser-Lopez’s suit for not being timely filed.
After multiple briefings and arguments, Judge Frangie delivered her findings and opinion. She noted that not all violations of the Brown Act render action taken by a governmental panel as null and void, and that for action taken by a public governing board to be rescinded, the violation of the open public meeting law must be egregious, relate to actions violating the six specific sections of the Brown Act which enumerate serious matters and that the plaintiffs can clearly demonstrate that the public suffered actual harm or prejudice as a result of the Brown Act violation. Judge Frangie noted that the arguments the county made against declaring the appointment of Rowe to be null in void were based on case law which predated the California Legislature’s passage of a law in 1986 that enacted Government Code § 54960.1, which reinforced the Brown Act to allow for declaring an action taken in violation of the Brown Act to be null and void if the body that engaged in the Brown Act violation does not avail itself of the opportunity to “cure and correct” the violation.
Specifically, according to Judge Frangie, the board’s action was hidden from public view and deprived the public from participating in what should have inherently been a public selection process.  “These lists were submitted by the board members through a series of individual emails, which were then collected and tallied by the clerk for the purpose of obtaining a collective agreement by the board members to interview only a limited number of the 48-person applicant pool,” Judge Frangie wrote.
In her decision, Judge Frangie noted that both Musser-Lopez and Daly invited the board of supervisors to cure and correct its violation by voiding its previous action and reinitiating the selection process in compliance with the Brown Act but had failed to do so.
“[T]he court finds there is prejudice to the extent that the actions of the board deprived petitioners and the members of the community their right to monitor and provide input on the board’s collective acquisition and exchange of facts,” according to Judge Frangie. “The policy underlying the Brown Act is that public boards and agencies exist to aid in the conduct of the people’s business [and] the law is intended to mandate open and public actions and deliberations. The public trust is undermined by private deliberations and meetings not accessible to the public.  As the Supreme Court stated in Roberts v City of Palmdale, the intent of the Brown Act cannot be avoided by subterfuge – a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls     passing from one member of the governing body to the next would violate the open meeting     requirement. In this age of technology texts, messages and emails are easily substituted for letters and telephone calls. The public was further deprived of the information shared behind closed doors by the [board]members and of the content of their communications about the candidates as well as how they each voted. The public was further deprived of the opportunity to hear from all eligible candidates and to lobby for their preferred candidate before the board. These are the very things that the Brown Act was meant to address. Sections of the Brown Act were violated.”
In her conclusion, Judge Frangie wrote, “The court rules as follows:
1) The process by which Dawn Rowe was selected to the San Bernardino County Board of Supervisors violated the Ralph M Brown Act.
2) Respondents failed to cure and correct their violations of the Brown Act.
3) The appointment of Dawn Rowe as Third District Supervisor is null and void. Respondents and each of them shall rescind the appointment of Dawn Rowe as Third District supervisor. Pursuant to [the] board’s charter, the appointment of the Third District supervisor shall be made by the governor.”
Reflexively, the county the following day lodged an appeal of the ruling.
What was originally described as a “mad panic” on the part of several top county officials abated shortly thereafter, when it was realized that the appeal would stay  Frangie’s ruling, allowing Rowe to remain in office at least until the appellate court declines to take the matter up or until the appeal is heard.
One well placed source, who formerly held multiple positions in county government, including ones in the treasurer’s and assessor’s offices, told the Sentinel, “Everyone was traumatized by it when it first happened but when you analyze it, it doesn’t mean much, and everyone has calmed down. This was a ruling by a liberal Democratic judge, which is very likely to be overturned. Even if it is upheld, that won’t be for another six months or longer. The election is in March, by which point Dawn will have been reelected.”
The county’s official spokesman, David Wert said the board complied with the Brown Act in an appointment process that was, he insisted, “legal, proper and fully transparent,” during which any of those who applied for the position were given the opportunity to do so.
Today, the Board of Supervisors held a specially called closed session meeting, held at 1 p.m. in the Magda Lawson Conference Room on the fifth floor of the county administration building to discuss the matter. There was no indication of what the substance of the discussion was, as the appeal of the Judge Frangie’s ruling had already been filed the previous day.
Despite the board conducting its discussion out of the earshot of the public, it did break in the midst of the hearing to take public comment. Among those present was Musser-Lopez, who used the three minutes allotted her to chastise the board for its violation of the Brown Act in December and its legal effort now to overturn Frangie’s findings and rulings after it lost in court. She told the board that after violating the Brown Act and being caught, it should accept the defeat it suffered in Judge Frangie’s courtroom and simply accept the appointment Governor Gavin Newsome will make of someone to serve out the remainder of Supervisor Ramos’s term. She said the board was being profligate with taxpayer money in making the appeal.
“Look at the money you spent,” she said. “Now you are going to spend more on this appeal. You are going to get a good supervisor when Governor Newsome makes the appointment. You don’t care about anybody but yourselves and keeping your own reputations clear at our expense.”
-Mark Gutglueck