Null and Void!
S.E. Williams | Contributor
We are disappointed with your rushed, underhanded, and irresponsible appointment of Dawn Rowe to fill the Third District Supervisorial vacancy caused by the resignation of Assemblymember James Ramos,” read the protest petition leveraged online by Inland Empire United in its push to hold San Bernardino County Supervisors accountable to the public for what many local residents believed was a tainted selection process.
On Wednesday, September 18, 2019 Superior Court Judge Janet M. Frangie agreed with this assessment and ruled against the county in Inland Empire United vs. Board of Supervisors and in the process, voided the appointed of San Bernardino County Supervisor Dawn Rowe. The ruling opens the door for a potential appointment by California Governor Gavin Newsom to fill the seat.
In a news release Executive Director of Inland Empire (IE) United Michael Gomez Daly declared, “This petition was never about the candidate selected to the seat, it was about protecting public transparency and accountability for our elected officials.”
Frangie ruled the county’s selection process violated the Ralph M. Brown (open meeting) Act and ordered the San Bernardino County Board of Supervisors to rescind the appointment.
As might be expected however, the county quickly filed an appeal. On Thursday, September 19th county spokesperson David Wert issued a press release putting citizens on notice. “Supervisor Dawn Rowe’s status as a member of the San Bernardino Board of Supervisors has not changed as a result of Wednesday’s lower court decision. The County appealed the decision this morning and maintains the judge’s decision was in error. The appeal stays the ruling until it can be scrutinized by a higher court.
Although the lower court’s determination, aligned with the position of (IE) United, its members and numbers of others in the community, the county stands by its December 18, 2018 appointment of Rowe. Wert called the appointment legal, proper, and conducted with full transparency and multiple opportunities for full public participation, including public testimony, opportunities for all applicants to publicly address the Board of Supervisors, public interviews, and the inclusion of a seemingly endless amount of mail and email correspondence from residents. “The County considers Wednesday’s action as the latest step in a lengthy legal process.”
(IE) United disagreed. “Despite public records requests, letters from the public, and demands to expand the process, you sorted through applications behind closed doors, with no public discussion of how you selected your nominations – all of whom were White and a majority of whom were Republican, despite the broad ethnic and partisan diversity of the district and the applicant pool.”
The IE Voice reported on this scandal late last year when on December 18, 2018 the San Bernardino County Board of Supervisor appointed Dawn Rowe, a Republican field representative for U.S. Congressman Paul Cook (8th Congressional District), to represent the county’s Third District a vacancy left by former Supervisor James Ramos (Democrat) who was elected to the California State Assembly last November.
In the year of “Me Too,” some celebrated the Board’s new female majority—the first in its history, others point to the Republican party’s now enhanced “White” control over a county where Democrats hold a clear majority and minority constituents now hold a clear demographic majority.
“While transparency reduces corruption, good governance goes beyond transparency in achieving openness. Openness means involving the stakeholders in [the] decision-making process. Transparency is the right to information while openness is the right to participation.”
– Narendra Modi
When the board selected Rowe, according to the December 16, 2018 Weekly Report of [Voter] Registration published by the San Bernardino County Registrar of Voters, 38.3 percent of registered voters in San Bernardino County were registered Democrats while only 29.1 percent were registered Republican—Democrats clearly held a near ten-point majority.
Although the county charter defines the supervisorial role as nonpartisan and existing board members unanimously supported Rowe’s appointment, critics were less than pleased with the board’s selection and the process they used to fill the position.
When the supervisors’ acknowledged no less than 43 candidates who submitted for the position met all the Board’s requirements for consideration—surely there were competitive Democrats among them. It was apparent to many critics of Rowe’s anointing that nepotism may have ruled the day.
The replacement selection process came under suspicion and was temporarily stymied on December 11, when Needles resident Ruth Musser-Lopez, sent an email to the San Bernardino County Board of Supervisors (Board) accusing it of having violated the Ralph M. Brown Act.
The foundation for the former Needles City Council member’s concern was initially laid on November 13 and reinforced December 4, when the Board approved and then modified an application and selection process to fill the vacant Third District seat on the Board. Those actions were followed on December 10th when Board members agreed to an interview list of thirteen candidates gleaned from the 43 qualified candidates who applied and then on December 11th the Board narrowed the 13 semi-finalists to a list of five finalists.
The Board made all those decisions behind closed doors, in secret and away from public view. This is the process Judge Frangie now agrees violated the opening meeting requirements outlined in the Brown Act which mandates that most meetings of public bodies be held “in public.”
Musser-Lopez summed this up in an email that in part, accused the Board of casting, “preliminary votes secretly, without a process agreed upon by the public and without publicly disclosing the votes of the individual supervisors to the public.” This is exactly what the Board did.
According to the California State Association of Counties (CSAC), “. . . the Board must follow the procedural requirements in the [local, state, federal] statutes or its actions will not be valid.”
The CSAC guidelines further state, “An official act of the Board of Supervisors can only be performed in a regularly or specially convened meeting. The individual members have no power to act for the county merely because they are members of the Board of Supervisors. Meetings of the Board of Supervisors are subject to the restrictions of the Ralph M. Brown Act. With limited exceptions, the Brown Act requires that all Board of Supervisors meetings be open and public.”
The San Bernardino County Charter is very clear that a vacancy in the office of Supervisor will be filled by appointment based on a majority vote of the remaining members of the Board of Supervisors from qualified electors of the Supervisorial District in which such vacancy exists. It also states that the position be filled by the Board within 30 days of the vacancy or the governor will appoint someone to fill the vacancy. Many critics believe this is exactly what the Board sought to avoid—after all, California’s governor is a Democrat.
Although the county’s charter is silent as to any process to fill the vacancy, the open meeting rule mandates of the Brown Act must always (with limited exception) be followed. As noted however, the board’s process, including actions to whittle down the list of candidates on two occasions, deviated from Brown Act requirements.
According to county officials, 48 “qualified candidates” initially applied for the open position and were asked to submit supplemental materials consisting of responses to questions and any additional supporting documents—43 candidates complied by the December 7, 2018 deadline.
The supervisors initially planned to have a public discussion regarding its pre-determined list of the five finalists (their picks from the list of 43) on December 13th but postponed the action after it received the Musser-Lopez email, claiming they wanted to allow time for county counsel to examine the board’s actions and determine whether the Musser-Lopez accusation had merit.
When asked during an interview with The IE Voice/Black Voice News last year, Wert was asked about the county’s misstep. “First of all,” he said at the time, “the county has not determined that a misstep occurred. An allegation has been made and the board is taking the allegation seriously, so much so that they postponed further action on the appointment for five days in light of a looming deadline.”
After consulting with legal on the merits of Musser-Lopez concerns, the county determined it would rescind its previous actions and conduct its candidate deliberations in an open session on Tuesday, December 18, before selecting a replacement to fill the vacant seat.
Detailed in the background document associated with item 102 (Selection of Third District Supervisor) of the board’s December 18 meeting agenda was the official rationale for the board’s change in process related to the vacancy.
Rather than addressing the alleged Brown Act violation it read, “Because of the limited time in which the Board of Supervisors may exercise its right to make an appointment to fill the Third District Supervisorial vacancy, a legal defense of the open and transparent process is not practical. Contesting the allegations may result in a forfeiture to the Governor of the board’s right to make the selection.”
In making its final decision, the board further agreed to rely on the 43 applications submitted to the County (rather than its hand-picked list of five finalists), the supplemental questionnaires submitted by all candidates, any other documentation submitted by a candidate, and the testimony and comments presented by members of the public at the Board’s December 11th open session.
In the end, the board managed around concerns over alleged Brown Act violations and selected a candidate from the short list of five contenders it had previously and furtively identified—Republican Dawn Rowe.
In light of last week’s judicial ruling Board Chairman Curt Hagman also expressed his disagreement with the ruling by insisting, “Our appointment of Dawn Rowe to the Board of Supervisors was conducted openly and honestly and for the past nine months she has served the people of this county very well.”
Hagman continued, “Supervisor Rowe represents the Third District with integrity, intelligence, compassion and fairness. We should not have to defend the appointment, but we will do so every step of the way.”
The board was scheduled to meet in closed session on Friday, September 20 to consider a way forward. In the meantime, Wert insisted, “San Bernardino County has a longstanding tradition of serving as perhaps the most open and transparent local government agency in California.”
The IE Voice will continue to follow this story.