In a questionably defiant and unquestionably ill-timed legal move, San Bernardino County has lodged with the California Supreme Court a complaint against Governor Gavin Newsom, contesting what it maintains are his overbearing COVID-19 precaution mandates and stay-at-home orders.
The county’s challenging of the governor’s constitutional authority comes just as the coronavirus pandemic has spiked to unprecedented levels, overwhelming hospitals and medical providers, even as deaths from the condition have increased to the point that Newsom has ordered up 5,000 more body bags for statewide distribution to head off overcrowding within the Golden State’s morgues.
Of substantial note, is that San Bernardino County is pursuing legal relief from the governor’s order while statistics demonstrate that San Bernardino County’s current infection rates on a per capita basis are outrunning those of California’s 57 other counties.
Incomprehensibly, San Bernardino County’s filing asserts communities with fewer COVID-19 infections should have fewer restrictions. Nevertheless, San Bernardino County has recently, and continues to, evince an infection rate unparalleled in the region and the state. Over the last two months, as measured by the state’s statistics relating to the cases of infection and its graduated system of granting counties an exit from the precautionary restrictions, San Bernardino County’s rate for the spread of the COVID-19 contagion has kept it in the state’s most restrictive tier, which does not permit any indoor dining at restaurants, shutters certain types of businesses and disallows worship at churches.
San Bernardino County is collectivized with 11 counties from the Baja California border northward labeled the Southern California Region, which accounts for more than half of the state’s population. The Southern California Region, is subject to a stay-at-home order, which is in effect at least until Christmas. That order, which Governor Newsom was advised to make by the state’s brain trust of medical authorities, was triggered when the occupancy rate within the intensive care units in the region’s hospitals eclipsed 85 percent in the days after Thanksgiving. Newsome cited the California Emergency Services Act in imposing the preventative mandates, which went into effect in the Southern California Region as of Sunday, December 6.
The California Emergency Services Act provides the governor with “complete authority over all agencies of the state government” to “promulgate, issue, and enforce such orders and regulations as he deems necessary.”
As the state’s fifth-most populous county with 2.2 million residents, San Bernardino County has the second-highest number of coronavirus cases among California counties, with only 11.5-million population Los Angeles County having more. In Los Angeles County as of this week, there had been 566,000 confirmed cases of coronavirus infection, a known rate of infection of 5.39 percent among its residents. San Bernardino County as of yesterday, Thursday, December 17, had a reported 144,455 confirmed cases, a known rate of infection of 6.566 percent.
Additionally, yesterday, San Bernardino County experienced its largest single-day increase in the number of reported cases, as the number of known infectees leapt by 9,383, along with 19 reported virus-related deaths. Since the start of the pandemic in February, California has logged 21,194 deaths wholly or partially attributed to COVID-19. Of that number, 1,241 occurred in San Bernardino County.
A critical statistic considered by the state in mandating and maintaining precautionary measures relates to the availability of medical facilities, including both hospital beds overall and intensive care unit capacity specifically. Following the Thanksgiving weekend, the numbers of those hospitalized with COVID-19 symptoms began to steadily climb. On November 30, the number of available beds in the Southern California Region’s hospitals stood at 15 percent. There was a slight respite less than a week thereafter, when 20.3 percent of the intensive care unit beds were unoccupied regionally. By Saturday, December 12, the number of available intensive care unit beds in the Southern California Region hovered at 4 percent, although reportedly at that point the number of intensive care unit beds in San Bernardino County had not dwindled as low as in surrounding counties. Two days a go, on Wednesday, 1.4 percent of the intensive care unit beds in the Southern California Region were unoccupied. As of yesterday three days after San Bernardino County asked the Supreme Court to remove it from the governor’s mandate, every intensive care unit bed in the 11-county Southern California Region was occupied.
San Bernardino County had 1,413 confirmed COVID-19 patients in its hospitals as of yesterday, 94 more than the 1,319 with Coronavirus symptoms hospitalized throughout the county the previous day, Wednesday, December 16. As of yesterday, all 569 of the county’s intensive care unit beds were occupied, 271 of them with those experiencing critical COVID-19 symptoms.
Nevertheless, on Monday, San Bernardino County had lodged a filing with the California Supreme Court claiming that Governor Newsom and the state government were being unduly alarmist in applying stay-at-home-orders and other restrictions to San Bernardino County, its residents and its businesses. It sought an exemption from the regional guidelines pertaining to itself as well as Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Diego, San Luis Obispo, Santa Barbara and Ventura counties, and a decree from the Supreme Court that the county would be able to ascertain what restrictions should be applied to residents and businesses within its jurisdiction without interference from the governor.
The county said it should be allowed to reclaim “its constitutional authority to tailor regulations and orders which are specific to its residents based on facts which are unique to their locations rather than subject its residents to overbroad multi-county, governor-implemented, regionalized lockdowns.”
Chairman of the San Bernardino County Board of Supervisors Curt Hagman said Newsom has overstepped his authority. “The governor is not permitted to act as both the executive and legislative branch for nine months under the California Emergency Services Act,” Hagman said. “If it is concluded that the act allows him to do so, the act is unconstitutional as it permits the delegation of the legislature’s powers to the executive branch in violation of the California Constitution.”
County officials have said they should be able to fine-tune the governmental regulations pertaining to the health threat that will be imposed locally rather than having the county, its residents and businesses subject to an edict from on high in Sacramento.
According to the lawsuit, San Bernardino County has squandered considerable resources in enforcing the governor’s order, including expending 117,281.5 sheriff’s department man-hours, including 24,356.5 overtime hours on COVID-19-related activities. Furthermore, according to the suit, the San Bernardino County Department of Public Health has seen its attention diverted from the provision of other critical services to county residents, such as public health education, family services, nutrition and animal control. “The respondents subjectively decided that these services were secondary to the enforcement of their stay-at-home laws, requiring the San Bernardino County Department of Public Health to enforce respondents’ legislative acts instead of allowing the San Bernardino County Department of Public Health to provide important services to county residents,” according to the lawsuit.
Forcing the San Bernardino County Department of Public Health to focus on the state’s priorities will be counterproductive, according to the lawsuit, now that inoculating the county’s population with the coronavirus vaccine is a task that should be undertaken.
The lawsuit was not lodged at the level of the Superior Court or with any appellate districts, but rather directly to the California Supreme Court on December 14. It maintains that Governor Newsom does not have the legal or constitutional authority to ban gatherings, close businesses deemed nonessential, curtail dining at restaurants or prevent a restaurant’s occupancy from exceeding 20 percent of normal capacity set by an applicable local fire code. The filing requested that the Supreme Court render a decision on the request by Monday, December 28, at which time the three-week stay-at-home order is set to elapse, with an option for Newsom to extend it. The county began preparations to file the lawsuit in November, prior to Newsom’s order going into effect on December 6.
The county board of supervisors had contemplated, when the concept of a lawsuit against the state was first being discussed in November, of joining in with the region’s other counties in filing the suit. That approach fell apart, however, when the counties of Ventura, Santa Barbara, and San Luis Obispo themselves approached the state, saying they should be excused from the order because it was unfair for them to be lumped in with counties experiencing high rates of infection such as San Bernardino County.
The county is hoping to replicate the success achieved in Michigan in October when the Michigan Supreme Court struck down COVID-19 precautionary orders put into effect by Democratic Governor Gretchen Whitmer after Michigan’s Republican state state legislators challenged her authority at the trial court and appellate court levels.
Most legal observers rate the prospect of San Bernardino County prevailing in its action as low, given the blanket nature of the authority invested in the governor by the California Emergency Services Act and the escalating COVID-19 infection rates and COVID-19-related deaths in the county.
A telling indicator is that the county is represented in the action by the Murrieta-based law firm of Tyler & Bursch, whose principal, Robert Tyler, in Southern California is known as the patron saint of lost legal causes. In 2016, the Chino Valley School District, having already been rebuffed by the federal court in Riverside over its policy of engaging in prayer, specifically evangelical Christian prayer at public meetings, appealed the ruling, with Tyler as its legal representative. Ultimately, the District Court’s ruling was upheld and the school district, which had already been ordered in 2016 to pay $202,971.70 to the Freedom From Religion Foundation for its attorney’s fees and other costs, was called upon once more in 2019 to cover the Freedom From Religion Foundation’s roughly $147,000 in legal costs accruing during the appeal.

Today, San Bernardino County Superior Court Judge David Cohn approved a motion by The Red Brennan Group to intervene in a lawsuit the members of the county board of supervisors are pursuing in an effort to overturn Measure K, a local government reform effort passed by voters in the November election. Approved by more than two-thirds of the county’s voters, the initiative sets total compensation for an elected supervisor at $60,000 per year and limits an elected supervisor to a single four-year term.
The Red Brennan Group sponsored Measure K this year, eight years after the late Kiernan “Red” Brennan led a similar county government reform effort, the centerpiece of which was a pay-and-benefits reduction initiative, Measure R, passed by the voters in the November 2012 election. Measure R called for reducing each individual board member’s total annual compensation – salary and benefits of just under $220,000 – by nearly $160,000 to $60,000. The supervisors at that time were able to sidestep Measure R by putting their own “reform” measure on the same ballot, Measure Q, which called for leaving the supervisors’ $151,000 salaries intact while reducing their $69,000 in yearly benefits to $64,000, such that their annual compensation totaled just under $215,000. The supervisors heavily promoted Measure Q as a “sensible” reform effort, and while Measure R passed by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed, Measure Q achieved passage by a 67.28 percent to 32.72 percent margin, 344,226 votes in support to 157,369 against it. Because Measure Q passed by more votes than did Measure R, the supervisors’ measure went into effect instead of Red Brennan’s.
This year, after the Red Brennan Group and the chief proponent of what was ultimately designated by the county registrar of voters as Measure K, Nadia Renner, succeeded in gathering 75,132 signatures of county voters to put that initiative on the November ballot, the board of supervisors attempted to repeat what had occurred in 2012 by using its power as an elected body to place an alternative initiative on the ballot, one which was billed again as a reform measure that would adjust certain outdated language used in the county charter and also set the board members’ individual compensation packages at $290,000. Measure J further replicated an existing limitation of three four-year terms on supervisors. It was the supervisors’ collective hope that just as Measure Q had outperformed Measure R at the polls in 2012, their measure in 2020, designated by the registrar of voters as Measure J, would likewise gather more support than Measure K, and thus keep the pay reductions in Measure K from going into effect. As it turned out, however, Measure K did much better at the polls than did Measure J. Measure K passed with 516,184 or 66.84 percent of the 772,282 voters participating supporting it, and 256,098 voters or 33.16 percent opposed.
According to the final certified election results released by the San Bernardino County Registrar of Voters, Measure J passed, with 378,964 votes or 50.72 percent of the 747,188 votes cast supporting it and 368,224 or 49.28 percent opposed.
Under state law, a conflict between the provisions of two measures simultaneously adopted by the voters is resolved by implementing the provisions of the winning measure that gets the most votes and disregarding the conflicting provisions of a winning measure that gets fewer votes. This principle was applied in 2012 with regard to the conflicting provisions of measures Q and R. Expectations were this year that Measure K’s provisions – consisting of limiting supervisors to a total annual compensation of $60,000 and a single four-year term – would by virtue of the greater number of votes it received trump Measure J’s provisions allowing a supervisor a $290,000 per year stipend including salary and benefits and the option of serving three four-year terms, subject to the will of the voters in three separate elections.
Once the election results were certified, the board of supervisors, using taxpayer funds, contracted with three Los Angeles-based attorneys – Bradley Hertz, James Sutton and Nicholas Sanders – to take legal action to block Measure K from going into effect. In their suit on behalf of the board of supervisors, Hertz, Sutton and Sanders did not sue the Red Brennan Group or Renner, but rather the supervisors’ own employee, San Bernardino County Clerk of the Board Lynna Monell. The legal action, a petition for a writ of mandate, alleges that Measure K is fatally flawed because it “violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative… [and] it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors… [and its] term limit provision for members of the county board of supervisors violates the First and Fourteenth Amendments to the United States Constitution [by] impermissibly infring[ing] on voters’ and incumbents’ First and Fourteenth Amendment rights.” Additionally, the writ of mandate maintains Measure K violates what “the single subject rule” pertaining to voter initiatives and that “Measure K must not be implemented because it does not embrace a single subject.”
A hearing on the petition for a writ of mandate was held on December 4 before San Bernardino Superior Court Judge David Cohn.
Hertz, Sutton and Sanders pressed Judge Cohn to grant their motion for a temporary restraining order to halt the implementation of Measure K while the petition for a writ of mandate is being litigated.
The Red Brennan Group, which has been authorized by Measure K’s official proponent, Renner, to defend her interests, was present at the hearing in the form of its attorney Aaron Burden. Also in attendance was attorney Cory Briggs, representing the Inland Oversight Committee. Both Burden and Briggs, on behalf of their clients, had drafted and submitted motions to intervene as defendants in the case. Judge Cohn, initially, held the position that neither Burden nor Briggs nor the Red Brennan Group nor the Inland Oversight Committee were parties involved in the matter, as the board of supervisors’ suit is against the clerk of the board, and as such they did not have status to involve themselves in the proceedings. The petition for a writ of mandate requests that the court order Monell “not to take any actions that would cause the implementation of Measure K’s provisions.”
Judge Cohn on December 4 appeared poised to rule in favor of the board of supervisors and grant the temporary restraining order. When, however, Briggs asserted there was a question as to whether the court had jurisdiction in interfering with a matter already decided by a vote of the people, Judge Cohn balked, thereafter delaying his decision, and he gave both Burden and Briggs an opportunity to file by Friday, December 11, briefs supporting why the Red Brennan Group’s and the Inland Oversight Committee’s motions to intervene should be granted, allowing them a seat at the table to argue the case against the petition for a writ of mandate’s request that Measure K be prevented from going into effect. Judge Cohn gave Hertz, Sutton and Sanders until Monday, December 14 to submit a brief as to why Measure K is to be stayed.
It is the Red Brennan Group’s position that upon the election results being certified, voter-mandated Measure K became a county ordinance, and, accordingly, the San Bernardino County Office of County Counsel, the county’s in-house stable fo lawyers headed by County Counsel Michelle Blakemore, is responsible to defend both Measure K, on behalf of the voters who passed it, and Monell, as the clerk of the board and a county employee. Blakemore and the office of county counsel, however, have not undertaken to defend either in court filings or in open court discussion.
The result, the Red Brennan Group maintains, is that “an initiative approved by over 66% of county voters is being ignored by the public servants sworn to protect the voters’ interests.”
Today’s hearing on the motions to intervene began in Judge Cohn’s court and ultimately ended later that day in front of Judge Donald Alvarez.
Judge Cohn, in accordance with settled law, approved the Red Brennan Group’s motion to intervene. Thereupon the group’s attorney, Aaron Burden, immediately followed with a preemptory challenge of Judge Cohn, based on the group’s belief it will not be able to have a fair and impartial trial or hearing before him. The matter was then sent to Judge Alvarez for his consideration.
Upon taking the case up, Judge Alvarez delayed further rulings pertaining to motions now pending, and scheduled a hearing for January 28. At that point he is to hear the motion to intervene from the Inland Oversight Committee and to consider the board of supervisors’ request for a temporary restraining order.
The supervisors and their supporters argue that the reduction of their pay would be bad public policy and harm the quality of the county’s governance. The Red Brennan Group maintains putting the reins of county power in the hands of elected officials remunerated at a level equal to the income of the average county household and chosen to serve a single term will create a new culture of politics in which the incentive to remain in office will be removed, thereby preventing the corruption of government function by donors willing to donate tens of thousands or hundreds of thousands or even millions of dollars to officeholders to gain control of their decision-making authority over those donors’ projects or applications for county contracts or franchises.

By clicking on the blue portal below, you can download a PDF of the December 11 edition of the San Bernardino County Sentinel.

Sentinel 12-11-20

By Mark Gutglueck
The San Bernardino County Board of Supervisors’ legal effort to overturn county voters’ November 3 passage of Measure K, which cut the board’s compensation by three-fourths going forward, has opened up a can of worms that is likely to complicate the function of the county’s governmental structure and attendant political, administrative and legal issues for at least the next several years.
Incidental to the board’s action is the potential that it will trigger a requirement that all of the members of the board of supervisors who have served on the board since 2006 refund the county and its taxpayers several million dollars they have received in salary overpayments since that time.
The battle royale over the remuneration of San Bernardino County’s highest elected authorities has been brewing for more than a decade. In the early 2000s, the members of the board of supervisors were individually paid a salary of $99,000, what was widely considered among the general population to be sufficient. At that time, the board also received yearly pay add-ons of as much as $15,000 to $20,000, together with annual benefits of $50,000 to $55,000 that put the the supervisors’ individual total annual compensation in the $164,000 to $174,000 range.
Among the supervisors themselves, however, there was a belief that given the duties and prestige of the positions they held, their remuneration was inadequate and, indeed, might be considered an insult. In 2006, at the behest of then-Supervisor Paul Biane, the board of supervisors placed before the county’s voters what was designated as Measure P, which called for upping the board members’ salaries to $151,000 per year before benefits and any add-ons, while simultaneously imposing on the members a limitation of three four-year terms. In pitching Measure P to their constituents, the supervisors and the initiative’s other backers emphasized the measure’s term limit element. Ultimately, Measure P passed with 182,892 votes or 56.49 percent in favor and 140,887 votes or 53.51 percent in opposition.
In 2012, government reform advocates Kiernan “Red” Brennan and Eric Steinmann gathered the signatures of 73,672 county voters to qualify a countywide ballot initiative intended to bring the remuneration of the county government’s ultimate decision-makers into line with the residents they govern, and to discourage career politicians fixated on money and thereby influenced by political donations from monopolizing the positions on the San Bernardino County Board of Supervisors.
Brennan’s and Steinman’s initiative, designated as Measure R on the November 2012 ballot, called for downscaling the five individual San Bernardino County supervisors’ then-yearly $151,971 salaries and $67,500 in benefits to $50,000 in salary and $10,000 in benefits annually, a drop in total compensation from $219,471 per year to $60,000.
The members of the board of supervisors, alarmed at the prospect that they would be subject to seeing their pay reduced by more than two-thirds but simultaneously recognizing that the public’s appetite for reform was intense, used their authority as government officials to place what they said was a “substitute reform” initiative onto the ballot. That initiative, Measure Q, called for instituting reform by allowing the supervisors’ individual salaries of $151,971 to remain in place, while reducing their annual benefits then valued at $67,500 by $5,000 to $62,500. Because of their status as supervisors, they did not need to gather any signatures to put the Measure Q “reform” initiative reducing their total annual compensation to $214,471 on the ballot.
Adopting the Measure R advocates’ calls for reform, the supervisors and their supporters, as the proponents of Measure Q, did not in any overt fashion campaign against Measure R, but rather expounded in generic terms what they represented as Measure Q’s “sensible” and “moderate” approach for achieving compensation reduction for the supervisors.
In the November 2012 election, Measure R passed by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed. Measure Q passed as well, by a 67.28 percent to 32.72 percent margin, 344,226 votes in support to 157,369 against it. Because Measure Q garnered more votes than Measure R, the former went into effect rather than the latter. Instead of the supervisors seeing their $219,471 per year total compensation packages reduced to $60,000, they were instead cut back to $214,202.
Brennan died in 2013, a year after his and Steinmann’s measure came up short. Those involved in the 2012 Measure R and other government reform efforts Brennan had led founded the Red Brennan Group shortly thereafter, dedicating it to reducing the depth, breadth and cost of county government while aiming at improving its efficiency.
For many in the Red Brennan Group, there was lingering resentment over the manner in which the board of supervisors in 2012 had diverted what they considered to be a legitimate reform effort that was aimed at breaking the hold that money has on politics and elected officials.
In 2017, the Red Brennan Group undertook petition drives to qualify two countywide initiatives, one aimed at reducing members of the San Bernardino County Board of Supervisors to part time status and imposing on that panel’s members a commensurate reduction in pay, and another more comprehensive measure dubbed the “Leadership Accountability Initiative.”
The latter measure called for reversing the county’s 2010 move which changed the title and authority of the county chief administrative officer to the county chief executive officer, which had also conferred on the post higher pay. The Leadership Accountability Initiative eliminated the chief executive officer post and reestablished the county administrator position, pegged compensation of elected officials – supervisors, sheriff, district attorney, treasurer/auditor/controller and assessor – to a multiple of the median family income in the region, and eliminated increased accrual of retirement benefits by elected officials. The initiative further sought to restrict bloat within the county’s governmental structure by placing a per capita limit on the number of county employees. It was also intended to require the supervisors use every legal means available to ensure county government employee pay and benefits were equal to private industry pay and benefits in the San Bernardino County jurisdiction.
After the initiative proposals were submitted in 2017 to the county’s stable of in-house lawyers, known as the office of county counsel, the county sued the initiatives’ proponents, claiming the initiatives violated the California Constitution, the current legal authority of the supervisors, and the single subject rule for initiatives. In its lawsuit, the county contended it therefore should not be required to complete its ministerial duty of providing a ballot title and summary for the initiative proposals.
At that point, the Red Brennan Group postponed its efforts, consulting with legal authorities before proceeding.
Following that legal guidance and a delay of more than a year-and-a-half, it resumed its efforts, and began circulating a petition last year to force a referendum on a measure to reduce the total compensation of each of the members of the board of supervisors to $5,000 per month and limit them to a single four-year term. The group gathered 75,132 signatures, which were affixed to copies of the petition. Those documents, consisting of 10,121 pages, were handed over to the San Bernardino County Registrar of Voters Office on March 20, 2020.
Registrar of Voters Bob Page thereafter carried out an exacting “3% random sample” examination of the signatures, in which 2,255 were scrutinized. Of those, 1,840 were found to be the valid signatures of registered county voters and 415 were what Page deemed “insufficient.” He found among the valid signatures one duplicate. Thus, Page projected, were the full 75,132 signatures to be examined, 60,228 would be determined to be valid. The three percent sampling standard can be used to certify an initiative petition drive, Page indicated, if the sampling projection shows that more than 110 percent of the required number of voter signatures have been attained. The 60,228 signatures was equal to 112.1 percent of the 53,725 signatures needed to qualify a countywide initiative. On that basis, Page certified the initiative the Red Brennan Group was sponsoring to be eligible for placement on the November 3, 2020 ballot. The board of supervisors temporized for two months thereafter, throughout much of April, all of May and well into June, doing so in order to provide then-County Chief Executive Officer Gary McBride, then-Chief County Operating Officer Leonard Hernandez, their staffs and the office of county counsel time to research and come up with some grounds upon which to prevent the measure from being placed before the county’s voters. When no such basis for keeping the measure off the ballot emerged, the board on June 23, 2020, openly expressing their beliefs that Measure K’s reduction in salary and one term restriction on the time a member of the board can serve is contrary to the principles of good governance and the interests of San Bernardino County’s residents, reluctantly voted to have the registrar of voters process its placement on the ballot. Then, seeking to replicate the success the board had in 2012 in stymieing Red Brennan and Eric Steinman in their effort to reduce the pay of the board members, the board used its authority as a sitting elected body to offer the voters an alternative “charter reform measure,” which was aimed at preventing the gist of Measure K – the pay reduction to $60,000 per year and the limitation of supervisors to one term – from taking effect.
Having come to a determination that the county’s existing charter is antiquated and in need of revamping, the supervisors placed a measure aimed at what was called the redrafting of the county charter on the ballot, voting on July 14 and again on July 28 to place their charter reform initiative on the November 3 ballot, just in time to meet the  county registrar of voters office’s August 7 deadline for the submission of items to be placed before the voters. Though there had been scant discussion of charter changes previously and no expression of a public consensus on what elements of the charter should be redressed, the office of county counsel virtually overnight delivered the language for the charter reform initiative for the board to approve on July 14.
Of tremendous importance, the board said, was modernizing the charter to eliminate what is now considered outdated and genderist language, such as the charter’s reference to the board’s designated leader as “chairman” and what “his” duties consist of. Further, since the current charter did not directly address the compensation the supervisors receive, their level of pay was deemed an important issue for the redraft. There was no public discussion of an appropriate remuneration level. Rather, the office of county counsel, working from the premise that the supervisors current salary of $163,000, augmentation/add-on pay of roughly $17,000 and benefits of $77,000 for a total annual compensation of $257,000 is what the supervisors deserve, hit upon setting the supervisors’ salaries at 80 percent of the salary of a Superior Court judge and making their benefits equal to that provided to county department heads. In this way, the board of supervisors’ charter reform measure called for having the supervisors pulling down $260,000 to $290,000 per year in total annual compensation, depending upon the amount of further/add-on pay they are provided with. In addition, Measure J clarified an ambiguity contained in Measure P, which set a three-term limit. Those looking at the language of Measure P said it left open the possibility that a supervisor serving in one district for the three term limit could thereafter relocate his or her residence to another district and seek election to the board there. Measure J clarified that a single individual was limited to three terms total on the board, no matter which district he or she represented.
Just as was the case in 2012 when the county’s alternative reform measure was given the designation of Measure Q, placing it on a higher position on the ballot than Red Brennan’s Measure R despite the consideration that Brennan’s initiative was submitted first, this year the registrar of voters designated the county board of supervisors’ petition Measure J, placing it above the Red Brennan Group’s Measure K.
Analysis of voter behavior demonstrates that when casting their ballots with regard to competing candidates or initiatives, voters statistically favor the candidate or measure higher up on the ballot.
Under state law, in a circumstance in which two measures that have conflicting provisions pass, that which obtains the most votes goes into effect with regard to those conflicts the measures involve. It was the county board of supervisors’ hope that if both Measure J and Measure K were given approval by the voters, Measure J would garner more votes, and thus it would be the controlling determinant pertaining to the supervisors’ pay level.
As it turned out, Measure K passed by such an overwhelming margin that its one-term restriction and $60,000 total compensation provision trumped the three-term and $260,000 to $290,000 per year in total annual compensation elements of Measure J. According to the final certified results of the November 3 vote provided by the San Bernardino County Registrar of Voters, voters approved Measure J by a 10,640 vote margin with 378,964 or 50.72 percent of the 747,188 votes counted in favor of the initiative versus 368,224 votes or 49.28 percent cast against it. Measure K, meanwhile, was favored by better than a two-to-one margin of the 772,282 votes cast, as 516,184 votes or 66.84 percent endorsed the initiative and 256,098 votes or 33.16 percent were recorded in opposition.
Unwilling to accept the prospect that their pay was to be reduced to less than one-fourth of what they were at that point receiving, the board of supervisors the day after the election results were certified took legal action to prevent Measure K from being implemented. Of note was that the board of supervisors did not sue the Red Brennan Group nor Nadia Renner, who was the individual who had sponsored Measure K and signed the application to take it to a vote, but rather their own employee, Clerk of the Board of Supervisors Lynna Monell. Represented by attorneys Bradley Hertz, James Sutton and Nicholas Sanders, the board filed a petition for a writ of mandate in San Bernardino County Superior Court on December 2 seeking an order of the court that Monell not take any action which would implement Measure K’s provisions.
According to the petition for a writ of mandate, Measure K is fatally flawed because it “violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative.” The petition for a writ of mandate further states that “Measure K must not be implemented because it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors.” The petition for a writ of mandate asserts that Measure K must not be implemented because its “term limit provision for members of the county board of supervisors violates the First and Fourteenth Amendments to the United States Constitution” and “impermissibly infringes on voters’ and incumbents’ First and Fourteenth Amendment rights.” Additionally, the writ of mandate maintains Measure K violates what Hertz, Sutton and Sanders termed “the single subject rule” pertaining to voter initiatives and that “Measure K must not be implemented because it does not embrace a single subject.” The petition for a writ of mandate quotes California Constitution, Article II, Section 8(d), stating, “Ballot initiatives are prohibited from ‘embracing more than a single subject.’”
Citing the 1976 case of Meldrim v. Board of Supervisors of Contra Costa County and the 1999 case of Jahr v. Casebeer, Hertz, Sutton and Sanders asserted, “Courts have recognized that [California Constitution] Article XI, Section 1 (b) provides that only county boards of supervisors have the right to set supervisor salaries, and that such salaries may not be set by citizen initiative. Section 4(b) affirms Section l(b)’s limited grant of power, and both of these sections were amended in the State Constitution in 1970 via Proposition 12, entitled ‘Compensation of County Supervisors.’ Proposition 12 removed the power to set county supervisors’ salaries from the California State Legislature and vested such power in the boards of supervisors. Section 4(b) provides that if a county charter includes a provision that compensation is to be set by legislative action, then only the county’s governing body may do so. Section 4(b) does not modify or otherwise affect Section l(b)’s provision that supervisor compensation may be set only by the county’s legislative body. To find otherwise is plainly inconsistent with the Constitution, and is inconsistent with the general scheme of county government.”
Just because the county had allowed Measure K onto the ballot and the voters had voted by a margin of more than two-to-one to approve it does not mean that its provisions are binding, Hertz, Sutton and Sanders maintain in the petition.
“Although boards of supervisors are required to place county charter amendments on the ballot for approval or rejection by the county’s voters, such action is distinguishable from measures such as Measure K, which are placed on the ballot via the citizen initiative process, as opposed to the governing body via an ordinance,” the petition reads. “Accordingly, Measure K violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative. Measure K must not be implemented because it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors.”
In a letter sent on December 4 to Aaron Burden, a lawyer for the Red Brennan Group, Hertz said, “The petition/complaint is being brought pursuant to California Code of Civil Procedure Sections 1085, 525 and 1060, et seq., on the grounds that Measure K is unconstitutional, legally invalid, and otherwise unenforceable, and that Ms. Monell, among others, must not take any actions that would cause the implementation of Measure K. We intend to demonstrate to the court, via our ex parte papers and when the matter is fully briefed and heard on its merits, that Measure K is invalid and unenforceable, that imminent and irreparable harm will occur if Measure K is implemented, and that therefore good cause exists to warrant the granting of immediate interim relief, and ultimately, preliminary and permanent relief, preventing the implementation of Measure K.”
A hearing on the petition for a writ of mandate was held on December 4 before San Bernardino Superior Court Judge David Cohn.
Hertz, Sutton and Sanders came to that hearing armed with a motion that a temporary restraining order be granted to halt the implementation of Measure K while the petition for a writ of mandate is being litigated.
The Red Brennan Group, which has been authorized by the petition’s proponent, Nadia Renner, to defend her interests, was present at the hearing in the form of its attorney Aaron Burden. Also in attendance was attorney Cory Briggs, representing the Inland Oversight Committee. Both Burden and Briggs, on behalf of their clients, had drafted and submitted motions to intervene as defendants in the case. Judge Cohn, at the outset of the December 4 hearing, told Burden and Briggs that they were welcome to observe the proceedings, but the Red Brennan Group and the Inland Oversight Committee were not parties involved in the matter, and as such they did not have status to involve themselves in the proceedings.
Judge Cohn, by his interaction with the Hertz, appeared poised to rule in favor of the board of supervisors and grant the temporary restraining order. When, however, Briggs asserted there was a question as to whether the court had jurisdiction in interfering with a matter already decided by a vote of the people, this deterred Judge Cohn, who thereafter delayed his decision, giving both Burden and Briggs an opportunity to file by today, Friday, December 11, briefs supporting why the Red Brennan Group’s and the Inland Oversight Committee’s motions to intervene should be granted, which would essentially allow them a seat at the table to argue the case against the petition for a writ of mandate’s request that Measure K be prevented from going into effect. Judge Cohn gave Hertz, Sutton and Sanders until Monday, December 14 to submit a brief as to why Measure K is to be stayed. Thereafter, on December 18, Judge Cohn is to revisit the question of whether a temporary restraining order to block the implementation of Measure K should be given.
Judge Cohn further granted permission for Burden and Briggs to file preliminary opposition papers to the board of supervisors’ ex parte application to stay the application of Measure K. If, on December 18, Judge Cohn grants either or both the Red Brennan Group’s and the Inland Oversight Committee’s motions for intervention, he will then consider the board of supervisors’ motion together with the opposition papers against it. In the case that the Red Brennan Group and the Inland Oversight Committee are not granted intervention, there is an overwhelming prospect that the board of supervisors’ temporary restraining order will be granted, since the county – meaning Monell in her capacity as the clerk of the board of supervisors – is not opposing the legal filing against her by her political masters, the board of supervisors.
Technically, the office of county counsel – the county’s in-house stable of attorneys, is tasked with defending both Measure K, as a citizen-passed initiative which upon passage has the status of a county ordinance, and county employees faced with a legal challenge, such as Monell. County Counsel Michelle Blakemore, who serves at the pleasure of the board of supervisors, however, has apparently made a decision to not provide a robust defense of Measure K, or indeed, any defense of Measure K. This decision could have a momentous impact upon the county and the board of supervisors as well as upon Blakemore’s status as an attorney.
In their rush to put the petition for the writ of mandate together to achieve the board of supervisors’ goal of heading off the impacts of Measure K, Hertz, Sutton and Sanders may have opened the door to a host of what may prove to be highly untoward unintended consequences not just for the current members of the board of supervisors but all of those who have served in the capacity of county supervisor since December 2006. At the very least, Hertz, Sutton and Sanders, who apparently lack and have no access to an institutional memory of issues and events in San Bernardino County going back a decade-and-a-half, have raised with the petition for a writ of mandate some obvious questions that bring into doubt whether the county and both the current and past board of supervisors have acted appropriately, legally, in accordance with the U.S. Constitution, the California Constitution, and the California Government Code. Moreover, Hertz, Sutton and Sanders may have inadvertently revealed that their clients – the board of supervisors as it was composed on December 2, 2020 – engaged in a conspiracy and a criminal public agency conflict of interest that could render them and, possibly, past members of the board of supervisors ineligible to ever again hold elected public office in California.
At issue is that if it proves out that all of Hertz’s, Sutton’s and Sanders’ contentions with regard to Measure K are accurate, those assertions also appear to be equally applicable to Measure P, which, upon its passage in 2006, boosted the supervisors’ salaries by $52,000 yearly from that time forward. The salary provision of Measure P remains in effect. Thus, by the extension of the logic applied in the petition for the writ of mandate filed by Hertz, Sutton and Sanders on December 2, the members of the board of supervisors have over the last 14 years received $3,640,000 in pay to which they were not legally entitled.
The writ of mandate’s language pertaining to Measure K seems equally applicable to Measure Q, which was placed on the ballot by the board of supervisors and supported by them in 2012, and which passed and remains in effect.
The writ of mandate’s language pertaining to Measure K’s illegality likewise is equally applicable to Measure J, which was placed on the ballot by the San Bernardino County Board of Supervisors this year, and which was passed by the voters.
According to the legal standard enunciated by Hertz, Sutton and Sanders in their petition for a writ of mandate on behalf of the board of supervisors, Measure P violated “the single subject rule” for initiatives; its term limit provision for members of the county board of supervisors violated, no less than Measure K does, the First and Fourteenth Amendments to the United States Constitution by “impermissibly infringing on voters’ and incumbents’ First and Fourteenth Amendment rights.” Just as Measure K did, Measure P violates the California Government Code’s prohibition on the adjustment of sitting officials’ salaries by any entity other than the board of supervisors by exceeding the initiative power of the electorate through intruding on matters that are exclusively delegated to the governing body, in this case determining the compensation the supervisors are to receive.
In like fashion, according to the standard which Hertz, Sutton and Sanders said is applicable to Measure K, the county board of supervisors’ Measure Q in 2012, which turned over to the voters a choice on what the board’s salary and benefits are to be, intruded on the board of supervisors’ ability to set the compensation level for themselves.
Measure J, which the board placed on the ballot this year, violated the California Government Code’s restriction against anyone other than the board of supervisors being able to set their own pay, was further out of compliance with the “the single subject rule” for initiatives; and its term limit provision for members of the county board of supervisors violates, just as Measure K does, the First and Fourteenth Amendments to the United States Constitution, if the legal standard spelled out by Hertz, Sutton and Sanders in the petition for a writ of mandate they filed on behalf of the board of supervisors on December 2 is adhered to.
When Hertz, Sutton and Sanders this week were individually queried by the Sentinel if they contested that measures P, Q and J are or were fatally flawed in the same way that Measure K is flawed, they declined to respond.
Significantly, Hertz, Sutton and Sanders did not dispute that the logical extension of their argument against Measure K is that both Measure P, which raised the supervisors’ individual annual salaries from $99,000 to $151,000 in 2006 and Measure Q, which in 2012 set the supervisors’ individual total compensation at $214,471 before add-ons, consisting of $151,971 in salary augmented by benefits of $62,500, were improper, illegal, unconstitutional, improperly approved by the county’s voters and therefore inapplicable. Specifically and directly asked to expound on what distinguishes both Measure P and Measure Q from Measure K in terms of their constitutionality and adherence to the government code and compliance with “the one subject rule” pertaining to initiatives, neither Hertz, Sutton nor Sanders was able or willing to do so. Furthermore, Hertz, Sutton and Sanders did not dispute that their writ of mandate on behalf of the board of supervisors implies measures P and Q were unconstitutional, improperly voted upon, improperly passed, improperly imposed and illegal, and they did not contest that the measures’ unconstitionality, the impropriety of their submission to the voters, improper passage and adoption and their inconsistency with the law constituted grounds upon which to vacate their terms, retroactively to 2006 and 2012, a concession that this reverted the board of supervisors into a situation in which their annual salaries are under the law properly set at $99,000 per year. Nor did Hertz, Sutton and Sanders dispute that the three four-year term limits imposed on all of the members of the board of supervisors in the years going forward from 2006 are void and that past and current members of the board of supervisors are free to run for reelection as many times as they wish.
In this way, it appears that the late former Third District Supervisor Dennis Hansberger, who served on the board from 1972 until 1980 and then again from 1996 until 2008, was overpaid by $104,000 during his final two years on the board; Brad Mitzelfelt, who served on the board as both appointed and elected First District supervisor from early 2007 until 2012, was overpaid roughly $307,666.67 during his five year-and-eleven-month tenure on the board of supervisors; Second District Supervisor Paul Biane, who served on the board of supervisors from 2002 until 2010, was overpaid $208,000 during his last four years on the board; Third District Supervisor Neil Derry, who served on the board of supervisors from 2008 until 2012, was overpaid $208,000 during his entire tenure on the board; Fourth District Supervisor Gary Ovitt, who served on the board from 2004 until 2014, was overpaid $416,000 during his last eight years on the board; Fifth District Supervisor Josie Gonzales, who served on the board from 2004 until earlier this week, was overpaid $728,000 during her last 14 years on the board; incumbent Second District Supervisor Janice Rutherford, who was elected to the board in 2010, has been overpaid $520,000 during her tenure on the board so far; former Third District Supervisor James Ramos, who served on the board from 2012 to 2018, was overpaid $312,000 during his tenure on the board; former First District Supervisor Robert Lovingood, who served on the board from 2012 until this week, was overpaid $416,000 the entire time he was on the board; incumbent Fourth District Supervisor Curt Hagman, who has been on the board since 2014, has been overpaid by $312,000 during his tenure on the board to date; and incumbent Third District Supervisor Dawn Rowe, who has been on the board since 2018, has been overpaid $104,000 during her time thus far on the board.
Hertz, Sutton and Sanders gave no indication as to whether they would advocate that Mitzelfelt, Biane, Derry, Ovitt, Gonzales, Rutherford, Ramos, Lovingood, Hagman, Rowe and Hansberger’s estate refund the overpayments that have been paid out since 2006. It has not been announced whether the five incumbents – Rutherford, Hagman and Rowe, as well as Paul Cook and Joe Baca, Jr., both of whom were sworn in this week on Monday, December 7 as First District supervisor and Fifth District supervisor respectively, have had their remuneration cut back to reflect the reduction of their salaries to $99,000 per year. Nor was it made clear if any or all of the supervisors would be allowed to claim cost of living increases with regard to those salaries with each succeeding year they have been in office. This is complicated by the consideration that from 2007 until 2014, during which there was a massive downturn in the national economy, that the consumer price index, upon which cost of living increases are based, inched up only slightly during those seven years.
What methodology will be used in having the current and former supervisors refund the money they have been overpaid has not been spelled out. For Rutherford, Hagman and Rowe, the potential of garnishing their wages is a possibility. In the case of Rutherford, the $520,000 she owes the county’s taxpayers is roughly equivalent to the combined salary, add-ons and benefits she would have made during the next two years if she was receiving the slightly more than $168,000 in salary she was provided with this year. With her salary now reduced to $99,000 or thereabouts, that equivalency no longer exists. Moreover, her benefits cannot be garnished. It is not possible, either, for Hagman to fully make up the $312,000 he is now in arrears to the county’s taxpayers by devoting his salary for the next two years to canceling that debt which he has accrued by taking a salary that was a third again more than he was legally entitled to the last half dozen years. For Rowe, whose debt to the county’s taxpayers runs to $104,000, the possibility exists that by surrendering her salary over the period of one year, she can pay down very nearly all of the money she illegally received over the last two years.
Precisely how six of the seven former members of the board – Mitzelfelt, Biane, Derry, Ovitt, Gonzales and Lovingood – will make the county whole remains to be determined. Ramos is independently wealthy, and should be able to retire his debt in short order. Lovingood is relatively well fixed, so should be able to tap into the money he makes from his business, an employment agency, to cover the $416,000 he was paid which he did not earn. In the case of Gonzales, as is the circumstance with Hagman, Rutherford and Rowe, she has a sizable electioneering fund. If it is legal for Gonzales to do so, she may tap into the more than $750,000 she has in her political war chest to retire her now personal debt to the county. Likewise, Hagman and Rowe have money in their campaign accounts, although theirs are not as substantial as that of Gonzales, who is contemplating a run for county assessor in 2022.
There are other complications for at least some of the current and former members of the board of supervisors as well as current County Counsel Michelle Blakemore that are radiating from the petition for a writ of mandate filed on December 2. Those may be more serious than all of the other considerations combined, as these carry criminal implications for five of the current and former board members and career threatening implication for Blakemore.
The petition for a writ of mandate on behalf of the board of supervisors was filed on December 2, at which point Hagman, Rutherford, Lovingood, Gonzales and Rowe were members of the board. The petition maintains, by logical extension, that Measure P was invalid, rendering its provision that boosted the board of supervisors’ individual salaries from $99,000 annually to $151,000 annually invalid. This at the very least implies that Hagman, Rutherford, Lovingood, Gonzales and Rowe knew that they were not entitled to the salaries – equal to $151,000 per year or more – that they accepted over the course of their tenures in office. That action constituted a potential variety of crimes, including theft, fraud, misappropriating public funds and public office conflict of interest. An elected officeholder convicted of a violation of the law pertaining to public office conflict of interest – California Government Code Section 1090 – can result in the individual so convicted being banned from holding public office thereafter. Theft, fraud and misappropriation involving money in the amounts that Hagman. Rutherford, Lovingood, Gonzales and Rowe accepted to which they were not legally entitled are prosecutable as felonies. Hagman’s, Rutherford’s, Lovingood’s, Gonzales’ and Rowe’s status as plaintiffs in a civil case in which they maintain the means they utilized to obtain money to which they were not entitled was illegal constitutes a prima facie case that each had knowledge they were engaging in an illegal act or series of illegal acts, constituting fraud, theft, misappropriation of public funds, public office conflict of interest and conspiracy when they accepted, year after year, some $52,000 more than their actual $99,000 per year salary.
Making a criminal case against Mitzelfelt, Biane, Derry, Ovitt and Ramos would be more difficult, as there is no immediately available indication or evidence to prove they understood or knew Measure P’s provisions with regard to their salaries to be illegal. Nevertheless, any assertion or argument they might make that they did not know they were not entitled to the money they received that was not legally theirs does not absolve them of the requirement under the law that they return that which does not belong to them to its rightful owner.
Similarly, any claims members of the board of supervisors might make that the statute of limitations has elapsed on their responsibility to disgorge the money to which they were not entitled would not suffice since the illegal disbursement of the money they are receiving has continued up to the present, either directly as a salary or in the form of enhancements to their public pensions.
For Blakemore, her entanglement with the board of supervisors and the petition for writ of mandate has all the makings of a legal and professional nightmare. As county counsel, she has an ethical and professional duty to serve her clients, which include the board of supervisors, the residents of San Bernardino County, the voters of San Bernardino County, who by initiative have passed a measure that takes on the status of an ordinance, and county employees, including the clerk of the board of supervisors. She also has a duty to defend any ordinance of the county, including ones passed by initiative by the voters of the county. While the board of supervisors in the case of the petition for a writ of mandate is not represented by Blakemore, she still represents them in scores, indeed hundreds or even thousands, of other matters. Simultaneously, she is duty bound to defend Monell as well as Measure K, which upon passage by the voters of the county and the certification of the election by the county registrar of voters office, automatically became a county ordinance. At the insistence of the board of supervisors, however, Blakemore and her office are standing down in the defense of Monell and Measure K, and by extension, the registrar of votes and San Bernardino County’s voters, who passed Measure K by a two-to-one margin on November 3. In this way, Blakemore has shirked her responsibility to Monell, the county’s residents, the county’s voters and Measure K. Indeed, it appears that Blakemore is attempting to throw the case by refusing altogether to mount a defense of Measure K in the face of the board of supervisors’ petition for a writ of mandate.
So far, there has been no indication that Blakemore is going to recuse herself and the rest of the office of county counsel in favor of bringing in an outside law firm to have it defend Measure K.
Where conflicts such as the one that Blakemore is caught up in manifest, they can be cured by the several parties represented by the attorney or attorneys with just such a conflict signing a waiver. The Sentinel’s inquiry of the county as to whether such a waiver was composed and signed in this instance was not given a response. The Sentinel further asked who had signed on behalf of the board of supervisors if such a waiver was indeed made, specifically if all five supervisors or just Chairman Hagman signed it. Similarly, the county did not respond as to who had signed any such waiver on behalf of the voters, and specifically if that person making the waiver on behalf of the voters was Monell or Bob Page, the registrar of voters. The county did not indicate at all whether Monell or Page had been a signatory to any such waiver.
David Wert, the county’s official spokesman, did, however, respond to the Sentinel’s inquiry on that point, albeit with questions in return.
“Why would county counsel defend a voter-approved ballot measure, unless specifically directed to do so by the board of supervisors?” Wert asked. “Are you saying it is county counsel’s role independent of the board and board direction to defend any voter-approved ballot measure against legal challenges?”
Whether some individual with standing – consisting of a county voter or a member of the Red Brennan Group or perhaps the Inland Oversight Committee, if one of those entities is granted permission by Judge Cohn to to intervene as a defendant in the case – will pursue a complaint against Blakemore is unknown at this point.
Current members of the board of supervisors were not willing to discuss Measure K, preferring to let Hertz, Sutton and Sanders do their talking for them – in a court of law. Hertz, Sutton and Sanders are not talking to the press.
Paul Biane, whose sponsorship of Measure P in 2006 was a major contributory factor to its passage, was willing to weigh in on Measure K and its stark limitation on the remuneration provided to the members of the board of supervisors.
“I would say what I said in 2006, which is that it is not advisable to have amateurs or volunteers serving in the role of county supervisor,” Biane said. “You don’t want people in important decision-making roles like that who are pursuing being in elected office as a hobby. You need talented professionals to fill that job, which is very demanding, and you need to offer them pay that is competitive.”
Former Supervisor Neil Derry told the Sentinel, “No one who is qualified to hold an office in which you serve 400,000 constituents will go through the grief of running for election to make less money than that person could make in the private sector. The lowest level planners in the county make more than $50,000 in salary, along with benefits and retirement. A supervisor’s chief of staff will make more than twice what a board member makes. That is not sensible. It is bad governmental policy and it is bad public policy. I am not surprised that the voters passed Measure K. The voters are unhappy with politicians, and I don’t have an argument with that. There are too many elected officials who have become fat and happy and don’t work. That is unfortunate, because they have a job to do. I am not attacking any of the current members of the board. If you want to run for office just to have a title, then a salary of $50,000 a year is exorbitant. If you are running for office to truly serve your constituents, a $50,000 salary is not enough money. It is not feasible to live on that.”
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