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CIV 190918 CIV DS1833846 MISC 150602

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Case Number DS1833846

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ActionTime 3 06
YOU WILL NOT BE CHARGED FOR
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TH I S PAG E
by THAND

STATEMENT OF DECISION filed

NEW FILE
1 SAN BERNARDINO SUPERIOR COURT
SAN BERNARDINO JUSTICE CENTER

2 247 W THIRD STREET DEPT S29


F L E D
SAN BERNARDINO CALIFORNIA92415
g pERIORCOURTOFCALIFORNUI

3 CSAN BERNARDINO DNTRCT


4 SEP 1 8 2019

5 lLttt oJ 1 LGM
gy
v DEPUN
6

10

11

SUPERIOR COURT FOR THE STATE OF CALIFORNIA


12

COUNTY OF SAN BERNARDINO SAN BERNARDINO JUSTICE CENTER


13

14
MICHAEL GOMEZ DALY and CASE NO CIVDS 1833846
15
INLAND EMPIRE UNITED
STATEMENT OF DECISION
16 Petitioners
submitted

17 v

18
BOARD OF SUPERVISORS OF SAN
BERNARDINO COUTY ROBERT A
19
LOVINGOOD as First District
Supervisor and Chair of the BOARD
20
of Supervisors JANICE
21 RUTHERFORD as Second District
Supervisor and Vice Chair of the
22 BOARDs CURT HAGMAN as Fourth
District Supervisor of the BOARD and
23 JOSIE GONZALES as Fifth District
Supervisor of the BOARD
24

Respondents
25

26
DAWN ROWE

27 Real Party in Interest

28

1
1 The Motion for a Peremptory Writ of Mandate was heard by the Court on June

2 28 2019 Petitioners MICHAEL GOMEZ DALY and INLAND EMPIRE UNITED

3
appeared by ALTSHULER BERZON LLP by Megan Wachspress Attorney at Law and
4
ROTHERNER SEGALL GREENSTONE Glenn Rothner Esq and Juhyung
by
5
Harold Lee Esq Respondents BOARD OF SUPERVISORS OF SAN BERNARDINO
6
COUNTY et al appeared by MEYERS NAVE RIBACK SILVER WILSON by
7

Deborah J Fox Law T Steven Burke Jr


Attorney at and Esq At the hearing the
8

Court took the following actions


9

10
A The Court took judicial notice of Petitioner s exhibits in the Request for

11 Judicial Notice and admitted them into evidence The Court also took judicial

12
notice of all pleadings and exhibits submitted by both parties as they pertain

13 RJN
to the hearing
14
g The Court admits Respondents exhibits 1 31 of the record of proceedings
15
lodged with the Court in Volumes 1 and 2 ROP

16

C Following argument the Court requested further written briefs on the issue of
17

whether or not Petitioners are required to demonstrate prejudice in the event


18

of a violation of the Ralph M Brown Act Brown Act


19

On August 5 2019 Petitioners Respondent filed


20
and supplemental briefing Now

21 having considered all of the papers filed in support of and in opposition to the motion

22
and the oral argument of counsel and the matter having been submitted for decision
23 the Court now rules as follows

24
Respondents Evidentiary Obiections to the Declaration of Michael Gomez DALY
25
filed March 14 2019

26
1 Sustained
27

28

2
1 2 Sustained

3
I PROCEDURAL FACTUAL BACKGROUND

4
This is an administrative mandamus action brought by petitioners Michael
5
Gomez DALY DALY and Inland Empire United IEU against respondents Board
6

of Supervisors of San Bernardino County the BOARD Robert A LOVINGOOD


7

LOVINGOOD Janice RUTHERFORD RUTHERFORD Curt HAGMAN


8

HAGMAN Josie GONZALES GONZALES collectively Respondents and real


9

lo party in interest Dawn ROWE ROWE asserting a violation of the Ralph M Brown

Act Brown Act to Government Code


11 pursuant 54950 et seq

12 Petitioners allege and the evidence establishes as follows

13 In November 2016 non party James Ramos Ramos was elected to a second

14
four year term as the Third District Member of the Board after first being elected to the
15
seat in 2012 In the November 6 2018 General Election Mr Ramos was elected to
16
40th 2
represent the Assembly District of the California State Assembly As a result a
17

vacancy on the Board of Supervisors was created


18

The San Bernardino County Charter authorizes the remaining members of the
19

Board to fill any vacancy in the office of Supervisor within a 30 day period If the Board
20

does not make a valid appointment within that period the Charter provides that such
21

22 appointment shall be made by the Governor 3

23 At a Special Meeting on November 13 2018 the BOARD approved a process to

24
select an individual to fill the remainder of RAMOS term due to the anticipated vacancy
25

26 Petitioner DALY is the executive director of IEU


2
FAP 22 FAP refers to the operative First Amended Verified Petition for Writ of
27 Mandate
3
Exh 1 ROP 001 009
28

3
1 in the position of Third District Member of the Board Petitioners allege that under the

2 approved process qualified electors of the Third District were invited to submit

3
applications between November 14 and December 3 2018 and beginning December
4
11 2018 the BOARD would conduct public interviews of those applicants who are
5
4
qualified electors of the Third District and who have timely filed the application

6
On December 3 2018 Assemblyperson RAMOS was sworn in as Member of the
7

Assembly thus creating the anticipated vacancy on the BOARD


s

In accordance with the process set forth in the Board s November 13 2018
9

10 Regular Meeting fifty two 52 individuals submitted applications for the vacancy One

11 application was subsequently withdrawn At the Board s December 4 2018 Regular

12 Meeting the Clerk of the Board determined that forty eight 48 of the remaining

3
applicants were registered electors residing in the Third District of San Bernardino

14 therefore for
County and eligible consideration At the same meeting over the
15
objection of GONZALES the BOARD modified the selection process and decided that
16
rather than schedule interviews for each of the 48 eligible candidates as planned the
1
BOARD would direct each Supervisor to submit via e mail up to 10 candidate names
18
to the Clerk Only those candidates who received at least two votes in this secret and
19

seriatim ballot would be invited to interview Petitioners allege that neither the
20

21
December 4 2018 Agenda nor any other published notice indicated that the BOARD

22
would consider and vote on a new selection process that limited interviews to those

candidates selected in this manner On or about December 10 2018 respondents


23

24 LOVINGOOD RUTHERFORD HAGMAN and GONZALES collectively BOARD

25 MEMBERS submitted to the County Clerk via e mail the names of their preferred
26
candidates Petitioners allege that this seriatim meeting which was not publicly noticed
27
4
Exh 2 ROP 011
28

4
5
1 resulted in the narrowing of candidates under consideration from 48 to 13 No

2
document shows the votes of the BOARD MEMBERS On the basis of this secret ballot

3
13 candidates were designated nominees and invited to be interviewed by the
4
BOARD The nominees were also given an opportunity to speak directly to the
5
BOARD and answer questions at a Special Meeting of the Board held on December 11
6

2018 The remaining 35 candidates were not interviewed and were removed from
7

consideration At the December 11 2018 Special Meeting five of the 13 nominees


8

were selected for further consideration real party in interest ROWE along with Bill
9

Emmerson EMMERSON Sean Flynn FLYNN William Jahn JAHN and


lo

11 Rhodes Rigsby RIGSBY

12 On or about December 12 2018 Samuel Sukaton Data and Special Projects

13 Manager of IEU sent an e mail message to David Wert Public Information Officer of

14
San Bernardino County requesting the lists of candidates sent by each BOARD
15
Member to the Clerk as part of the December 10 2018 vote Wert responded stating
16
that he was attaching all of the materials that you requested in his possession
1
6
including a tally sheet resulting from the process adopted
by the BOARD However
18

the tally sheet did not show which candidates were submitted by which Board Member
19

Petitioners allege that a Special Meeting of the BOARD was noticed for December 13
20

21
2018 and the agenda for that meeting stated that the BOARD would conduct interviews

22
of the applicants qualified for appointment and then select the Third District Member

Prior to the meeting Ruth Musser Lopez LOPEZ sent two demand letters to the
23

24 BOARD wherein she identified the December 10 2018 secret ballot as a violation of the

25
Brown Act and asserted that the candidates interviewed did not include any candidates
26

5
27 FAP 29
6
Exh 19 ROP 92
28
5
1 of color and were almost exclusively men LOPEZ demanded that the BOARD cure or

2
correct this violation by voiding the secret ballot and allow ing the equal processing of
3
all 48 applicants with equal time to give their speech to the Board before the BOARD

4
took its final vote to fill the Third District Supervisor position In response to LOPEZ
5
letters and on advice of County Counsel the BOARD did not take any further action on
6
the selection of the new Supervisor at its December 13 2018 meeting Instead
7

minutes after the meeting began the BOARD quickly adjourned


8

On or about December 18 2018 Petitioner DALY sent a letter to the BOARD


9

and the BOARD MEMBERS wherein he also informed them that the December 10
l0

11 2018 ballot by which the 13 finalists were selected violated the Brown Act because it

12 was both a serial meeting and a secret ballot In his letter DALY demanded that the

13
BOARD cure or correct this violation by providing an equal opportunity for all eligible
14
candidates to interview with the BOARD

15
Petitioners allege that the BOARD did not interview or invite to interview the 35
16
candidates who had not been selected through the December 10 2018 secret ballot
17
nor did the BOARD provide public notice or notice to the eligible candidates of a new
18
process in lieu of the unlawful December 10 2018 vote During the public comment
19

20
period at the regular meeting on December 18 2018 and prior to the BOARD taking

21
any action on the Third District vacancy appointment several members of the public

in favor
22
spoke of appointing Christopher Carrillo CARRILLO to the position A few

23 public comments were also made on behalf of Sean FLYNN and a couple of other

24 members of the public urged the BOARD to interview all of the candidates who had

25 applied

26

27 Exh 17 ROP 089 091 Exh 19 ROP 100


FAP 38
28

6
1 After the close of the public comment period LOVINGOOD moved to rescind

2
the prior actions taken with regards to the Third District vacancy and the BOARD voted
3 9
unanimously to do so LOVINGOOD then initiated a discussion as to how the BOARD

4
would amend the appointment process and HAGMAN suggested each Board Member

5
put two or three names in the hat and then either ask further questions of the
6

candidates or simply move to appoint someone to the vacancy without any further
7
10
questions LOVINGOOD stated he believed the BOARD s prior actions were
s

consistent with the BOARD s obligations and what was stated in the policy and he
9

then made a motion to nominate ROWE for the Third District vacancy The motion
lo

11 received two votes in favor and did not move forward

12 After his unsuccessful attempt to have ROWE appointed LOVINGOOD then

13 stated the BOARD would go to the name cast then and he directed the Clerk to

12
14 distribute ballots GONZALES asked that she be provided the opportunity to ask
15
questions of all the applicants selected LOVINGOOD then moved to direct each Board

16
Member to submit three names with each candidate receiving at least one vote to be
17
interviewed and the motion was adopted As part of this amended process the
18
BOARD then proceeded to select the same five individuals i e EMMERSON FLYNN
9

JAHN RIGSBY ROWE


and who had previously been chosen as finalists from the
20

pool of unlawfully selected nominees CARRILLO also received one vote as he had
21

22
on the December 10 2018 secret ballot but at that time it was deemed one vote was

23 not sufficient to qualify for an interview

24

25

9
26 Exh 31 ROP 592 593
oExh 31 ROP 594
27 Exh 31 ROP 597 598
12Exh 31 ROP 598
28
7
1 The six applicants were then interviewed in the following order CARRILLO for

2
approximately 10 minutes RIGSBY for approximately 7 minutes EMMERSON for
3
approximately 9 minutes FLYNN for approximately 14 minutes JAHN for
4
approximately 10 minutes and ROWE for approximately 17 minutes At no point prior

5
to the December 18 2018 meeting were applicants or the public given notice that
6

interviews would be conducted at the meeting Other than CARRILLO none of the other
7

previously eliminated 35 candidates were given the opportunity to interview with the
8

BOARD prior to the appointment of ROWE


9

Petitioners allege these interviews were not part of a new and lawful process
lo

11 and the BOARD MEMBERS conduct throughout the interviews was inconsistent with

12 their purported rescission of the prior unlawful selection process Instead Petitioners

13 allege the December 18 2018 interviews were essentially a continuation of the unlawful
13
14 that began the December
10t
ballot
process with secret Petitioners note that at the

15
December 18 2018 meeting LOVINGOOD did not ask any questions of any of the
16
candidates HAGMAN did not ask CARRILLO any questions and RUTHERFORD only
17
asked if CARRILLO had the endorsement of Ramos In addition EMMERSON and
18

RIGSBY declined to make statements to the BOARD and instead chose to rely on their
19

previous remarks and invited questions while HAGMAN asked FLYNN why members of
20

21
the public spoke on his behalf during the public comment period and what had he done

22 since December 11 2018 GONZALES and RUTHERFORD explicitly referred to

23 responses given by candidates during their previous interviews and ROWE took the

24 opportunity to address a concern and clarify a response she had given during the

25
December 11 2018 interviews HAGMAN openly acknowledged that in voting for
26
ROSE he was relying on the preferences of the other Board Members as expressed
27

13FAP 49
28

8
1 during the December 10 2018 secret ballot process and he stated that Rose came up
14
2 list
highly on everyone s Following the interviews the BOARD did not discuss the
3
candidates or the interviews and did not allow any public comment Instead
4
LOVINGOOD immediately moved again to appoint ROWE and the motion was
5
seconded and adopted After a short recess ROWE was sworn in as the Third District
6
Supervisor of the BOARD
7

Subsequently the BOARD sent a letter to Petitioners dated December 20 2018


8

wherein the BOARD claimed it had taken actions to cure and or correct the actions the
9

10 Petitioners challenged at the December 18 2018 Regular Meeting The letter purported
15
to be the BOARD s response to Petitioners demand letter
11

12 On December 31 2018 Petitioners filed their Verified Petition for Writ of

13 Mandate against Respondents and ROWE On April 8 2019 after demurrer

14
Petitioners filed the operative First Amended Verified Petition for Writ of Mandate

15
asserting a violation of the Brown Act pursuant to Government Code 54950 et seq
16
With regard to the process of appointing real party in interest ROWE to the position of
17
Third District Supervisor
18
Petitioners seek a peremptory writ of mandate declaring 1 the Brown Act was
19

applicable to and violated by the BOARD s secret ballot on December 10 2018 via
20

seriatim communications to select 13 nominees for the Third District Supervisor


21

22
vacancy 2 BOARD failed to cure or correct this violation at its December 18 2018

Regular Meeting 3 the appointment of ROWE is null and void under Government
23

24 Code 54960 1 4 BOARD must rescind the appointment of ROWE as Third District

25 Supervisor
5 BOARD failed to lawfully appoint a Supervisor in the 30 day period
26

14
27 Exh 31 ROP 653
15
Exh 21 ROP 17
28

9
1 required by the San Bernardino County Charter and therefore the appointment of the

2
Third District Supervisor must be made by the Governor and 6 Petitioners are entitled
3
their attorneys fees and costs pursuant to Government Code 54960 5

5
II ANALYSIS
6

The public policy furthered by the Brown Act is stated in Government Code
7

54950 which provides


8

In enacting this chapter the Legislature finds and declares


9
that the public commissions boards and councils and the other
public agencies in this State exist to aid in the conduct of the
10
people s business It is the intent of the law that their actions

11 be taken openly and that their deliberations be conducted openly

12 The people of this State do not yield their sovereignty to the


agencies which serve them The people in delegating authority
13 do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know
14
The people insist on remaining informed so that they may
retain control over the instruments they have created
15

16
In furtherance of this public policy the Brown Act goes on to require meetings of
16
legislative bodies of local public agencies to be open and public As a result the Act
17

also provides
I g a majority of the members of a legislative body shall not outside a

19 meeting authorized by this chapter use a series of communications of any kind directly
2
or through intermediaries to discuss deliberate or take action on any item of business
21

22

23 16

The Brown Act also provides for the prior posting of agendas which must provide a
24
brief general description of each item of business to be transacted or discussed and
the description generally need not exceed 20 words Government Code
54954 2 a In addition the Act provides that n o action or discussion shall be
25
undertaken on any item not appearing on the posted agenda Government Code
26 54954 2 subd a 3 This agenda requirement acts as a limitation on what the public
agency is authorized to do at the meeting subject to certain exceptions See e g San
27
Joaquin Raptor Rescue Center v County of Merced 2014 216 Cal App 4th 1167
1176 see also Government Code 54954 2 subd b
28

10
1 that is within the subject matter jurisdiction of the legislative body Government

2 Code 54952 2 b 1
subd These types of communications are commonly referred

3
to as serial or seriatim meetings Id Stockton Newspapers Inc v Redevelopment

4
A 9encY 1985 171 CaI A pp 3d 95 see a so 65 O p s Cal AttY Gen 63 1982 and 63

5
Ops Cal Atty Gen 820 1980
6
In that regard Government Code 54953 subdivision a provides All
7

meetings of the legislative body of a local agency shall be open and public and all
8

persons shall be permitted to attend any meeting of the legislative body of a local
9

10 agency except as otherwise provided in this chapter

11 Accordingly n o legislative body shall take action by secret ballot whether

12 or final and t he legislative body of a local agency shall publicly report any
preliminary

13 action taken and the vote or abstention on that action of each member present for the

14 2
action Government Code 54953 subd c 1

15
Here in the current litigation Petitioners contend the BOARD violated

16
54952 2 54953 c 1 and 54953 c 2 when the BOARD MEMBERS conducted a
17
seriatim meeting and took a secret vote on December 10 2018 to winnow the field of
18

candidates from 48 to 13 nominees As a result Petitioners argue that ROWE s


19

appointment must be declared null and void under 54960 1 which sets forth the
20

21
procedure by which the validity of a legislative action can be determined

Government Code 54960 1 provides in relevant part


22

23 a The district attorney or any interested person may


commence an action by mandamus or injunction for
24

As used in the Brown Act


25 action taken is defined as a collective decision made by
a majority of the members of a legislative body a collective commitment or promise by
26 a majority of the members of a legislative body to make a positive or negative decision
or an action vote by a majority of the members of a legislative body when sitting as a
27
body or entity upon a motion proposal resolution order or ordinance Government
Code 54952 6
28

11
1 the purpose of obtaining a judicial determination that
an action taken by a legislative body of a local agency
2
in violation of Section 54953 54954 2 54954 5 54954 6
54956 or 54956 5 is null and void under this section
3
Nothing in this chapter shall be construed to prevent a
4
legislative body from curing or correcting an action
challenged pursuant to this section

b Prior to any action being commenced pursuant to


6 subdivision a the interested person shall make
a demand of the legislative body to cure or correct
the action alleged to have been take in violation

g
The demand shall be in writing and clearly describe
the challenged action of the legislative body and nature
of the alleged violation
9

10 c 1 The written demand shall be made within 90 days


from the date the action was taken unless the action
11 was taken in an open session but in violation of Section
54954 2 in which case the written demand shall be made
12 within 30 days from the date the action was taken

13
2 Within 30 days of receipt of the demand the legislative
14
body shall cure or correct the challenged action and inform
the demanding party in writing of its actions to cure or
15 correct or inform the demanding party in writing of its
decision not to cure or correct the challenged action
16

3 If the legislative body takes no action within the


17 30 day period the inaction shall be deemed a decision
not to cure or correct the challenged action and the
18
15 day period to commence the action described in
19
subdivision a shall commence to run the day after
the 30 day period to cure or correct expires
20
4 Within 15 days of receipt of the written notice of the
21 legislative body s decision to cure or correct or not to
cure or correct or within 15 days of the expiration of
22 the 30 day period to cure or correct whichever is earlier
the demanding party shall be required to commence
23 the action pursuant to subdivision a or thereafter be
barred from commencing the action
24

The statute goes on to provide that if the court determines that the legislative
25

26 body took action to cure or correct the allegedly violative action then the writ petition
must be dismissed with prejudice Government Code 54960 1 subd e
27

2s

12
1 In the current litigation Respondents first contend that Petitioners claim must fail

2 because they did not comply with the notice to cure requirements under 54960 1 c

3
with regards to the December 18 2018 meeting According to Respondents since
4 18th

Petitioners did not serve a notice to cure as to the December meeting Petitioners
5
cannot now seek to nullify ROWE s appointment However as discussed further below
6

Respondents have not demonstrated they cured the Brown Act violations with regards
7

to the December 10 2018 and December 11 2018 actions of the BOARD Moreover
8

Respondents have not provided any authority to establish that absent such a cure
9

l0 Petitioners were required to submit a second notice regarding the same violations

11
ndeed the gravamen of Petitioners claim is not that the appointment of ROWE was

12 improper but rather that the cess by which ROWE was appointed to the vacancy
r

13 was in violation of the Brown Act As discussed more fully infra the Court finds that

14
Respondents did not cure the violations at the December 18 2018 meeting and as a
15
result the original violations set forth in Petitioners December 18 2018 letter remained

16
sufficient to allege Brown Act violations Accordingly Petitioners have fulfilled the
17
notice to cure requirement and they were not required to submit a second notice to
18

cure following the December 18 2018 meeting


19

The Court finds that Respondents actions violate the prohibition against seriatim
20

meetings and secret ballots The record indicates that at the December 4 2018 Board
21

22
Meeting a motion was made for the BOARD MEMBERS to provide supplemental

23 questions to the 48 applicants and then individually assess the responses Each Board

24 Member was then tasked with selecting 10 candidates from the field of 48 and sending
25
those names by email to the Clerk by December 10 2018 The Clerk then tallied the

26
votes and only those candidates receiving at least two votes would be invited to appear
27

28

13
1 for interviews before the BOARD at the December 11 2018 Special Meeting It is

2
undisputed from the record that after the December 4 2018 meeting the BOARD
3
MEMBERS conducted such an off the record seriatim meeting and vote because at the
4 19
December 11 2018 Special Meeting after the public comment period LOVINGOOD

5
announced From the initial and supplemental application process 13 candidates have
6
20
been selected to be interviewed today However in violation of the open meeting
7

requirement of the Brown Act the BOARD did not provide a public record of the
8

candidate lists provided by the BOARD MEMBERS and as a result there was no public
9

10 report of the vote taken by the BOARD which resulted in the selection of the 13

11 candidates who were to be interviewed

12 The case of Stockton Newspapers Inc v Members of Redevelopmenf Agency

13 supra is instructive In Stockfon Newspapers the Court of Appeal examined the

14
question of whether a redevelopment agency violated the Brown Act when its counsel
15
conducted a one on one telephone poll for the purpose of obtaining a collective
16
commitment or promise from the members on an issue before the Board 171

17
Cal App 3d at p 99 The Court held T he alleged participation by defendants a
18

majority of the legislative body of the redevelopment agency in a series of one to one
19

nonpublic and unnoticed telephone conversations with the agency s attorney for the
20

21
commonly agreed purpose of collectively deciding to approve the transfer of ownership

22 in redevelopment project property constitutes a meeting at which action was taken in

23
violation of the Brown Act Id at p 105

24

25
Exh 28 ROP 236 243 247 248 250 260
19
During the public comment period at least one person noted that the BOARD had
26 conducted a vote which resulted in the selection of the 13 interviewees and the vote
was a violation of the Brown Act As a result that member of the public demanded to
27 see those votes Exh 29 ROP 276
20
Exh 29 ROP 297
28
14
1 Moreover as noted in a 1985 California Attorney General Opinion since

2 governmental bodies are required under the Brown Act to deliberate and act in open

3
session an email ballot runs counter to the implicit requirement that such governmental

4
bodies act at meetings See 68 Ops Cal Atty Gen 65 69 1985 Cal AG LEXIS 44
5
12 Similarly a 2001 California Attorney General Opinion provided that since the
6

Brown Act was enacted to allow the public to observe and participate in the decision
7

making process of local government then n ot only are the actions taken by the
8

legislative body to be monitored by the public but also the deliberations leading to the
9

actions taken 84 Ops Cal Atty Gen 30 30 2001 Cal AG LEXIS 6 2 see also
10

11 Stockton Newspaper supra 171 Cal App 3d at p 100 Roberts v City of Palmdale

12 1993 5 Cal 4th 363 373 375

13
Similarly in the current litigation the BOARD essentially conducted a secret
14
serial meeting when each Board Member deliberated on the applications and then
15
submitted his or her list of 10 names selected from the field of 48 applicants These lists
16
Were submitted by the BOARD MEMBERS through a series of individual emails which
17
were then collected and tallied by the Clerk for the purpose of obtaining a collective
18

agreement by the BOARD MEMBERS to interview only a limited number of the 48


19

person applicant pool As found in Stockton Newspapers this series of events


20

21
constituted a meeting by the BOARD where it took action to narrow down the

22 number of candidates to be interviewed at the December 11 2018 meeting Since this

23 meeting and action did not occur at a properly noticed public meeting and does not

24 fall within any of the statutory exceptions to the open meeting requirement the actions
25
taken by the BOARD between December 4 2018 and December 11 2018 violated the

26 Brown Act

27

28

15
1 The Court also finds that the purported corrective actions taken by the BOARD at

2
the December 18 2018 meeting were pro forma at best and did not constitute a cure
3
Indeed at the December 18 2018 meeting after purportedly rescinding the interview
4
list of 13 candidates and the subsequent list of five finalists the BOARD declared the

5
Brown Act violations cured and corrected and then immediately sought to amend
6

the selection process by asking each BOARD Member to put two or three names in a
7

hat right now each from the total list and then we can if we want to follow up with
8
21
questions we can If we don t we can make a motion whatever the case may be A
9

motion was then made to j ust move forward and nominate ROWE to fill the Third
10

22
District vacancy
11

12 After that motion failed to pass the BOARD then immediately moved to have

13
each Board Member write down three candidate names and the Clerk tally the votes
14
Remarkably the BOARD moved through this process so quickly that even after having
15
provided the names one Board Member asked for a clarification of the motion and

16
noted t here was no discussion about candidates would have to have two votes or

23
three votes to get on that list The Clerk was then instructed to read the names and
18

state how many votes were obtained by each candidate whose name was submitted in
19
24
this truncated process Perhaps not surprisingly the candidates selected were the
20

same as those who comprised the original finalist list plus one additional candidate z5
21

22
Again in a sudden turn of events the Board Chair LOVINGOOD was prepared to just

23 move forward until Clerk Laura Welch reminded him that the Clerk needed to read into

24

25
2
Exh 31 ROP 592 594
26 22Exh 31 ROP 598
23Exh 31 ROP 602 603
27 24Exh 31 ROP 603 604
25Exh 31 ROP 604 605
28

16
26
1 the record which Board Member voted for which candidate The BOARD then

2 proceeded to interview the six candidates selected However as to the original five

3
finalists that had been re selected in this process it appears the BOARD simply

4
engaged in a continuation of the December 11 2018 interview process When the first
5
of those original finalists was called before the BOARD at the December 18 2018
6

meeting Chair LOVINGOOD said So Doctor RIGSBY as you come back if you will
7

again just kind of do your step forward with your thoughts today You were here
8
27
before and then we ll move forward see if there s any additional questions
9

Appearing somewhat surprised the candidate in seeking clarification asked So no


10

28
sequestration this time for the candidates and LOVINGOOD replied No The
11

12 other original finalists were similarly interviewed at the December 18 2018 meeting

13 with the BOARD MEMBERS asking them to share their positions and thoughts again
29
14 the December 11 2018 meeting Yet after re
referring to comments made at

15
interviewing these candidates in rather rapid fashion LOVINGOOD immediately moved
16
again to appoint ROWE to the vacancy without any public comment or even any
17
30
comment or deliberation by the BOARD The motion was immediately seconded and
18
the BOARD voted unanimously to appoint ROWE Id
19

Contrary to the arguments of Respondents this rapid chain of events does not
20

indicate that the BOARD actually rescinded its actions of December 10 2018 and
21

December 11 2018 Rescind means to abrogate and restore the parties to the
22

23

26Exh 31 ROP 604


24

25
27Exh 31 ROP 614
26 ZgExh 31 ROP 614

27 29Exh 31 ROP 614 667


3oExh 31 ROP 667
28
17
1 positions they would have occupied had there been no contract or to make void as an
2 the enacting authority Merriam Webster s
act by action of or a superior authority

3 10th

Collegiate Dictionary ed p 992 However in this instance the BOARD did not

4
restore the candidates to the positions they would have had absent the illegal actions
5
nor did the BOARD void those actions such that they had no legal force or effect
6

Instead the BOARD in rote fashion simply went through the motion of taking the same
7

vote that it took via secret ballot on December 10 2018 which resulted in the list of 13
8

candidates and then taking the same vote that it took on December 11 2018 which
9

resulted in the list of five finalists


10

11 Conducting such a ceremonial hearing to satisfy the open meeting requirement

12 while continuing to rely on findings and votes previously taken in secret does not

13 establish a cure of the BOARD s previous violations See e g Morrison v Housing

14
Authorify 2003 107 Cal App 4th 860 876 see also Page v MiraCosta Comm Coll
15
2009 180 Cal App 4th 471 505 Indeed although the BOARD purported to rescind its

16
earlier impermissible actions the December 18 2018 meeting was nothing more than a
17
reaffirmation of those actions The BOARD did not restore the 48 candidates to the
18

positions they held before the improper December 10 2018 vote but rather the
19

BOARD simply endorsed the improper vote by truncating their selections to three
20

21
candidates each and then essentially ratifying its original selection of ROWE As noted

22 above the BOARD did not engage in any deliberation after it purportedly rescinded its
December 10 2018 and December 11 2018 actions neither before the selection of
23

24 three candidates by each Board Member nor before the motion and vote appointing
25 ROWE As a result Respondents did not cure the violations of the Brown Act and their

26
selection of ROWE is null and void

27

28

18
1 III PREJUDICE

2 Respondents contend that even if a violation of the Brown Act occurred which

3
they deny relief must be denied to Petitioners because Petitioners were not prejudiced
4
by the BOARD s decision not to interview all 48 applicants
5
BOARD argues that Petitioners must show prejudice before any violation of the
6
Brown Act is deemed null and void pursuant to Government Code 54960 1 In
7

support BOARD cites to Cohan v City of Thousand Oaks 1994 30 Cal App 4th 547
8

San Lorenzo Valley Community Advocates for Responsible Education v San Lorenzo
9

10
Valley Unified School District 2006 139 Cal App 4th 1356 North Pacifica LLC v

11 California Coastal Commission 2008 166 Cal App 4th 1416 Galbiso v Orosi Public

12 Utility District 2010 182 Cal App 4th 652 and Olson v Hornbrook Community Services
31
13 District 2019 33 Cal App 5th 502

14
Conversely Petitioners contend that no such showing of prejudice is required
15
and that to the extent the issue of prejudice is raised in the case law it is mentioned

16
only in dicta According to Petitioners both the text of Government Code 54960 1 and

17
the legislative history of its enactment establish that it was never intended following the
18
enactment of 54960 1 that the element of prejudice be separately pleaded or proved
19

in order to void the action of a legislative body after a Brown Act violation
20

21
The purported requirement of a showing of prejudice to nullify or void actions in

violation of the Brown Act appears to have developed through a line of appellate court
22

23
31

24 The Court in Olson curiously found that an allegation of prejudice is not necessary to
state a cause of action under 54960 1 citing to Bell v Vista Unified School Dist 2000

25 82 Cal App 4th 672 684 and then stated without citation that the prejudice
determination is better left for a later proceeding after the facts can be ascertained The
26 Court is hard pressed to think of a cause of action where a required element of the
cause of action need not be plead but can be determined later in the proceeding The
27
only prejudice discussed in Bell was the Court finding that the District was not
prejudiced by the early filing of Bell s lawsuit alleging a violation of the Brown Act
28

19
1 cases beginning with Cohan v City of Thousand Oaks supra These cases generally

2 state E ven where a plaintiff has satisfied the threshold procedural requirements to set

3
aside an agency s action Brown Act violations will not necessarily invalidate a decision
4
the plaintiff must show prejudice San Lorenzo Valley Community Advocates for
5
Responsible Education v San Lorenzo Valley Unified Sch Dist supra 139 Cal App 4th
6

at p 1410
7

As with many of the decisions the Court in San Lorenzo Valley relied upon the
8

Cohan opinion which states V iolations of the Brown Act do not invalidate a decision
9

Citation Appellants must show prejudice Cohan supra 30 Cal App 4th at p 556
10

11 The Cohan case appears to rely upon dictum in a footnote in Griffis v County of Mono

12 1985 163 Cal App 3d 414 regarding a violation of Government Code 54954 2

32
13 which is one of the sections enumerated in Government Code 54960 1 See Griffis

33
14 supra 163 Cal App 3d at p 427 fn 15 Yet none of these cases required a showing
15 3a
of prejudice wholly separate and distinct from the alleged violation of the Brown Act

16
Moreover in San Lorenzo the Court found that Petitioner did not sustain its claim that

17
the District there violated the Brown Act It did not base its ruling on a lack of prejudice
18
In 1986 the Legislature enacted Government Code 54960 1 Before the
19

enactment of Government Code 54960 1 in 1986 the validity of an action taken in


20

violation of 54953 of the Brown Act was not affected Centinela Hospital Assn v
21

22
32
However it should be noted that in Cohan the citation to Griffis appears before the
23
Cohan court s statement that prejudice must be shown No citation to any authority
appears after that statement
24 33

In Griffis the Court held that a tentative map extension was approved by operation of
25 law where the BOARD failed to act on the appeal of the Planning Commission s
rescission of the second extension It did not discuss nor decide the case on the issue
26 of prejudice Id at 414
3a

It is also noted that with the exception of Ga biso v Orosi Public Utility District 2010
27
182 Cal App 4th 652 all of the cases cited by Respondents pertain to the Brown Act s
notice requirements
2s

20
1 City of Inglewood 1990 225 Cal App 3d 1586 1597 1599 In other words until the

2 enactment of 54960 1 there was no real consequence for the legislative body
3
violating any of the enumerated sections now contained in the statute See Santa C ara

4
Federation of Teachers v Governing BOARD 1981 116 Cal App 3d 831 846 Stribling
5
v Mailliard 1970 6 Cal App 3d 470 474 emphasis added

In Adler v City Council 1960 184 Cal App 2d 763 774 775 the Court affirmed
7

that at that time the Brown Act provide d no penalty for infraction and no method of
8

enforcement Ordinarily this implie d absence of intent to make the statute mandatory
9

10 and the existence of intent to leave it in the discretionary class The requirements of a

11
statute are directory not mandatory unless means be provided for its enforcement Of

12 course violation of a directory statute does not result in invalidity of the action so taken

13 Id internal citations omitted The Adler court went on to clarify that criminal penalties

14
may be applicable toward the conduct of individual public officials under certain
5 35
circumstances Id

16
In 1986 however the Legislature introduced Assembly Bill 2674 the
17
predecessor to section 54960 1 The introductory language of AB 2674 states
18
Under the existing law as by the courts any
construed

19
action taken at a meeting in violation of the Ralph M Brown
Act is nonetheless valid This bill would make certain
20
actions taken by a legislative body of a local agency null and
21
void This bill would authorize any interested person to
commence an action to determine if certain actions
taken the local agency are null and void
by
22 Assembly
Bill 2674 Legislative Counsel s Digest January 15 1986
emphasis added
23

24 The Policy Committee analysis March 11


of
1986 also states the following regarding
25
the history of the enactment of this Section

26
35
Similarly as noted above Griffis supra also stated in dictum that a Brown Act
27
violation did not void the legislative act but rather might result in criminal penalties to
the legislators
Griffis supra 163 Cal App 3d at p 427 fn 15
28

21
1 This bill would modify the Brown Act to require local
agencies to post specific agendas 72 hours prior to
2 and would render actions null and
conducting a meeting
void if the action is determined to be in violation of the Brown
3
Act

4
In addition AB 2674 would allow any interested person to
take action for the purpose of obtaining a judicial
5
determination that an action taken by a legislative body or
6 local agency is in violation of the open meetings act and is
therefore null and void
7

The Brown Act needs teeth because local agencies are


g
currently able to skirt the spirit and letter of the law and thus
conduct public business without public participation AB
9
2674 would by requiring the posting of a specific agenda
give the public more advance notice time and afford the
10
public greater opportunities for participation in government
il decision making

12 In addition it has been argued that even whether there has


been a noted violation of the Brown Act the action that was
13 the subject of the violation stands AB 2674 would render
these actions null and void thus putting teeth into the
14 Brown Act Assembly Committee on Local Government
analysis from March 11 1986 hearing emphasis added
15

It this basis that the Legislature


16
was on enacted 54960 1 specifically requiring

that the violation of certain enumerated provisions of the Brown Act 54953
17

lg 54954 2 54954 5 54954 6 54956 and 54956 5 will result in the action taken being

19 declared null and void Government Code 54960 1 subd a Ingram v Flippo

20 1999 74 Cal 4th 1280


App 1287 1288 Until the enactment of this statute the Brown

21
Act did not have any provision that resulted in the voiding of an act that was taken in
22
violation of its provisions only the prospect of potential criminal liability See Griffis
23
supra 163 Cal App 3d at p 427 fn 15 Given the state of the Brown Act prior to
24

54960 1 s enactment it is reasonable to see why the courts stated that a showing of
25

prejudice was necessary


26

27

28

22
1 However the 1986 legislation changed this doctrine and allowed actions taken in

2
violation of the Brown Act to be judicially determined as null and void Nevertheless
3
post 1986 published appellate opinions still refer to and rely upon pre 1986 decisions
4
even though the earlier cases appear to have been superseded by statute Indeed
5
several courts over the last 20 years have cited Cohan s bare statement with approval
6
Proponents of the elimination of the requirement of a showing of prejudice such

as Petitioners in the current litigation have lamented that since 1986 California case
8

law has ignored or at best overlooked the statutory mandate regarding the legal
9

lo
consequences arising from a violation of the Brown Act

11
For example as noted above the decisions in North Pacifica Ga biso and Olson

12 state that although a plaintiff may have satisfied the threshold procedural requirements

13 to set aside an agency s action violations of the Brown Act would not necessarily
14 invalidate decision and that the plaintiff must show prejudice See e Galbiso
a g

15
supra 182 Cal App 4th at pp 670 671 Olson supra 33 Cal App 5th at p 517 In these

16
cases the courts relied upon San Lorenzo Valley supra to support their decisions
17
See San Lorenzo Valley supra 139 Cal App 4th at p 1410 The San Lorenzo Valley
18
decision in turn relies upon Cohan and Cohan relies upon the aforementioned dictum
19

i n Griffis
20

In North Pacifica LLC as in the other cases the discussion of prejudice is


21

22
arguably dicta because the Appellate Court also found substantial compliance with the

23
open meeting law North Pacifica LLC supra 166 Cal App 4th at p 1433 As

24 demonstrated by the progeny of Cohan courts have continued to cite rely upon and

25 base their decisions on pre 1986 precedent for violations of the sections of the Brown

26 Act specifically in
enumerated 54960 1 Yet conspicuously absent from all of them
27
including Cohan is a close examination of the impact of the 1986 enactment of section

28
23
1 54960 1 on the issue of prejudice Therefore it appears that Cohan s reliance on Griffis

2
was improper since Griffis had been superseded by section 54960 1 one year after it

3
was decided As a result San Lorenzo Valley North Pacifica and Galbiso also should
4
not be cited as authority on the issue of whether violations of the section 54960 1
5
require a showing of actual harm or prejudice
6
In contrast there are finro cases decided after the 1986 enactment of section
7

54960 1 that provide a valid analysis of the implications of a Brown Act violation under
8

the statute i e that the violating action be declared null and void In Centinela
9

10
Hospital Assn v City of Inglewood 1990 225 Cal App 3d 1586 1597 1599 the Court

11
explains Before the enactment of Government Code 54960 1 in 1986 the validity of

12 an action taken in violation of 54953 of the Brown Act was not affected After citing

13
various pre 1986 cases as evidence of that proposition the Court then clearly states

14 that the 54960 1


after enactment of section an action taken by a legislative body of a
15 36
local agency in violation of Section 54953 is null and void under this section Id

16
Similarly in Ingram v Flippo 1999 74 Cal App 4th 1280 1287 1288 the Court
17
in its analysis of a case involving 54960 provided a comparison with 54960 1 The
18

Court noted the differences in the two sections and specifically points out that the
19

in
express provisions
54960 1 apply only when a party seeks to have a particular
20

legislative
21
action of a
body declared null and void Id See also Cal Alliance for Utils

Etc Educ
22
v City of San Diego 1997 56 Cal App 4th 1024 1028 the exhaustion

23 requirements were added to the Brown Act as part of the nullification remedy the

24 Legislature created in 1986 and on their face appear to apply only to nullification
25

36
26 Incidentally the Centinela Court also did not grant relief in that case on the basis of
prejudice but because there was no action taken under the definition of the Brown Act
27 nevertheless the Court provided a thorough analysis of the legislative
history Id
28
24
l claims Moreno v City of King 2005 127 Cal App 4th 17 Boyle v City of Redondo

2
Beach 1999 70 Cal App 4th 1109
3
A determination that a violation of the Brown Act is null and void weighs against

4
an additional requirement that a Petitioner establish prejudice No additional act or

5
conduct is required when conduct is legally invalid Moreover as stated previously a
6

showing of prejudice has not been listed by many Courts as a required element to
7

establish a Brown Act violation Page v MiraCosta Community College Dist supra 180
8

Cal App 4th 471 at p 500 Bell v Vista Unified School Dist supra 82 Cal App 4th 672
9

at p 684 O son v Hornbrook Community Services Dist supra 33 Cal App Sth 502 at
10

11 p 517

12 Accordingly in the current litigation the Court is not persuaded by the BOARD s

13 reliance on San Lorenzo Valley Cohan and North Pacifica LLC and the proposition for

14 these
which cases are cited namely that Petitioners must show prejudice in order to
15
nullify the BOARD s actions taken in violation of the Brown Act As discussed above
16
this proposition was superseded
by statute in 1986 through the enactment of 54960 1

17
the plain language of which dictates that the BOARD s violation of the enumerated
18
37
provisions of the Brown Act should render the action taken null and void

19

20
37
It is important to note that in 54960 1 the Legislature did not deem all actions
21 violating the Brown Act as null and void Indeed only actions violating the six sections
of the Act specifically enumerated in the statute can be declared null and void By way
22 Government Code
of comparison 54960 addresses discretionary action the court
may take if it is determined a legislative body violated 54956 7 54956 8 54956 9
23
54956 95 54957 or 54957 6 while 54959 designates consequences for violating
provision of the Brown Act See Government Code
24
any 54959 knowing violation of
any provision of the Brown Act by any member of a legislative body results in a
misdemeanor
25
This demonstrates that the Legislature intended that violations of different sections of
2g the Act result in different consequences For instance while the violations of those
sections enumerated in 54960 b result in certain orders at the discretion of the court
27 those in
violations of sections enumerated
54960 1 a result in the action being null
and void with no stated judicial discretion allowed other than a determination that those
28

25
1 Notwithstanding the Court s finding that Petitioners need not show prejudice the

2 Court finds there is prejudice to the extent that the actions of the BOARD deprived

3
Petitioners and the members of the community their right to monitor and provide input
4
on the BOARD s collective acquisition and exchange of facts Page v MiraCosta

5
Community College Dist supra 180 Cal App 4th at p 505 The policy underlying the
6

Brown Act is that public boards and agencies exist to aid in the conduct of the people s
7

business the law is intended to mandate open and public actions and deliberations
8

54950 Epstein v Hollywood Entertainment Dist ll Bus Improvement Dist 2001 87


9

Cal App 4th 862 868 fn 7 104 Cal Rptr 2d 857 c The public trust is undermined
10

11 by private deliberations and meetings not accessible to the public As the Supreme

12 Court stated in Roberts v City of Palmdale 1993 5 Cal 4th 363 376 the intent of

13
the Brown Act cannot be avoided by subterfuge a concerted plan to engage in

14
collective deliberation on public business through a series of letters or telephone calls

15
passing from one member of the governing body to the next would violate the open
16
meeting requirement other citations omitted In this age of technology texts
17
messages and emails are easily substituted for letters and telephone calls
18

The public was further deprived of the information shared behind closed doors by
19

the Council members and of the content of their communications about the candidates
20

as well as how they each voted


21

22 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
23

24 very things that the Brown Act was meant to address

25

26

sections of the Brown Act were violated Therefore the Legislature intended for the
27
variation in consequences depending on which specific provision of the Brown Act was
violated
28

26
1 CONCLUSION

2 The Court rules as follows

3
1 The process by which Dawn Rowe was selected to the San Bernardino County
4
BOARD of Supervisors violated the Ralph M Brown Act
5

2 Respondents failed to cure and correct their violations of the Brown Act
6

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
g

9 as Third District Supervisor Pursuant to BOARD s Charter the appointment of

10 the Third District Supervisor shall be made by the Governor and

11
4 Petitioners are entitled to reasonable attorney s fees and costs
12
The Court grants Petitioners Peremptory Writ as provided in this Statement of
13
Decision Petitioner is directed to prepare a Judgment consistent with this Statement of
14
Decision The Court sets an OSC re Judgment for October 25 2019 at 8 30 a m in
15

Department 29 If the judgment is entered before that date the hearing will be vacated
16

and no appearance will be necessary


17

The judicial assistant is directed to serve this Statement of Decision on the


18

parties
19

20
DATED FP 1 8 2019
21 NORABLE JANET M FRANGIE
JUDGE OF THE SUPERIOR COURT
22

23

24

25

26

27

28

27
1

SUPERIOR COURT IN THE STATE OF CALIFORNIA


2
COUNTY OF SAN BERNARDINO
3

I Theresa Handyside the undersigned state


4

5
I am employed in the County of San Bernardino State of California I am over the

age of 18 years and not a party to this action my business address is 247 W Third St
6

San Bernardino California 92415


7

I am familiar with this court s practice for collection and processing of documents
8
for mailing with the United States Postal Service The documents below are enclosed in
9

a sealed envelope with postage fully paid and mailed to the interested party ies below
10

and placed for collection and mailing this date following standard court practices
11
STATEMENT OF DECISION
12 Case No CIVDS 1833846

13
Megan Wachspress Attorney at Law Deborah J Fox Attorney at Law
ALTSHULER BERZON LLP MEYERS NAVE RIBACK
14
177 Post Street Suite 300 SILVER WILSON
15 San Francisco CA 94108 707 Wilshire Boulevard 24th Floor
Los Angeles CA 90017
16
Glenn Rothner Esq
ROTHNER SEGALL GREENSTONE
1 Michelle D Blakemore County Counsel
510 South Marengo Avenue OFFICE OF COUNTY COUNSEL
18
Pasadena CA 91101 COUNTY OF SAN BERNARDINO

19 385 North Arrowhead Avenue


San Bernardino CA 92415
20

21
I declare under penalty of perjury under the law of the State of California that the
22
foregoing is true and correct
23 SEP 1 201
Executed on San Bernardino California
24
e 1

25 Theresa Handyside
Judicial Assistant
26 San Bernardino Superior Court

27

28

28