By clicking on the blue portal below, you can download a PDF of the August 7 edition of the San Bernardino County Sentinel.
By Mark Gutglueck
Ruben Duran, the city attorney in Adelanto when the self-serving profit-taking and graft engaged in by a group of elected officials exploiting that city’s transition to a marijuana-based economy hit its zenith, has been hired as Ontario’s city attorney.
Duran has remained with Best Best & Krieger, LLP, even in the aftermath of his and the law firm’s 13-month association with the City of Adelanto which brought him and his firm, which has been in existence for 129 years and specializes largely in representing municipal entities, under the microscope of the FBI and the U.S. Department of Justice. In the months prior to Duran’s resignation as Adelanto city attorney, federal law enforcement agencies were focusing on the degree to which Duran was enabling two members of the city council, who were personally profiting by the liberalization of the city’s marijuana regulations. During Duran’s Adelanto tenure, a third member of the council was arrested by the FBI and indicted for taking bribes from applicants for cannabis-related businesses in exchange for facilitating their licensing and protecting them from regulatory or code enforcement activity once they were up and running.
Despite large numbers of the Adelanto populace having come to recognize that the core of Adelanto’s political leadership was on the take, Duran, true to his own personal professional philosophy and that of his law firm that a city attorney serves his municipality’s elected leadership, remained loyal to the city council throughout and even after his time as Adelanto city attorney.
Duran’s hiring as Ontario city attorney came this week, some 14 months after the Ontario council had seemingly ended its relationship with the Best Best & Krieger law firm. For close to three decades, John Brown, a partner in the firm, had served as Ontario’s city attorney. In June 2019, however, Councilmen Alan Wapner, Jim Bowman and Ruben Valencia moved to terminate Brown’s contract. Wapner, Bowman and Valencia then opted to bring in the law firm of Cole Huber, LLP, which is based in the Northern California city of Roseville but has an office in Ontario, to serve as city attorney.
After 14 months, however, with Scott Huber serving throughout that time as city attorney, the city council on Tuesday, August 4, jettisoned Cole Huber as the firm offering it legal counsel, and approved reentering into a contract with Best Best & Krieger for legal services. While Brown remains a partner with the firm, it is now Duran who will hold the title of Ontario city attorney. Duran with Richard Egger, another Best Best & Krieger attorney, on a number of occasions in 2019 and 2018 filled in for Brown as deputy city attorneys.
Duran is a partner with the firm. In addition to working out of Best Best & Krieger’s Ontario office much of the time, Duran lives in Ontario. In September 2019, Duran replaced Jeffrey Ballinger as Fontana city attorney. He also currently serves as the legal counsel for the Yucaipa-Calimesa Joint Unified School District. Duran was city attorney in Desert Hot Springs from 2006 to 2013.
Duran is a controversial figure in legal and municipal circles, primarily as a consequence of the time he served as city attorney in Adelanto.
In the November 2014 Adelanto municipal election, Rich Kerr, John Woodard and Charles Glasper supplanted, respectively, then-Mayor Cari Thomas, and councilmen Steve Baisden and Charles Valvo.
Kerr and Woodard, as well as Jermaine Wright, who had been elected to the city council in 2012 and would be reelected in 2016, in short order formulated a plan that they said would help the city overcome its financial challenges. In 2013, the city had declared a fiscal emergency, a step preparatory to a declaration of bankruptcy. The troika, taking stock of the reality that throughout San Bernardino County the county government and each of the 24 municipalities within it with the exception of Needles had historically been hostile to the commercial availability of medical marijuana despite the passage in 1996 of the Compassionate Use of Marijuana Act that made pharmaceutical marijuana legally available to those who had a doctor’s prescription for it, saw an opportunity. They would, they resolved, change the city’s codes to make the herb available in the city. In this way, they said, they would seek to transform Adelanto into the marijuana capital of California. In so doing, they maintained, they would rejuvenate the local economy and create a taxing mechanism that would fill the city’s coffers.
Though they had sufficient votes among them to prevail on the matter, Kerr, Woodard and Wright did not want to proceed on a bare 3-to-2 majority, given the sharp turn in direction they were proposing. Councilman Ed Camargo was dead set against allowing any sort of cannabis activity in Adelanto, commercial, medical or otherwise. So, too, was Glasper, an Air Force veteran. Glasper, who had previously served on the city council, at that time was showing vague signs of the dementia that over the next few years would rob him of many of his mental faculties. But at that time he was yet a forceful personality. Kerr, Wright and Woodard lured Glasper into supporting their plan by representing to him that their plan extended only to the cultivation of the plants, and that the product would be sold to dispensaries elsewhere in the Golden State, and that no dispensaries in Adelanto would be permitted, such that the drug would not be sold within the city limits. Glasper went along with the concept. Kerr, Wright, Glasper and Woodard signaled to longtime city manager Jim Hart that he should begin the revamping of the city code to allow the cultivation of marijuana within indoor greenhouses located in the city’s industrial park.
Hart had misgivings about the direction the city was headed in, and just three months into Kerr’s and Woodard’s tenure on the council, in February 2015, he resigned, effective the following month. The council moved to replace him with City Engineer/Public Works Director Tom Thornton, believing he would be amenable to facilitating the designs of the majority of the council for the city. Thornton tried to work with his political masters, but he too was less than enthusiastic about the whole thing. When Kerr, Woodard and Wright began to pressure him to sack Senior Management Analyst Mike Borja, Conservation Specialist Belen Cordero and Public Works Superintendent Nan Moore, whom the council troika considered obstructionists, Thornton had a crisis of conscience, and he moved back into the position of public works director. The city council thereafter moved to replace him with Cindy Herrera, who had been with the city for 26 years, 16 of them as city clerk.
Ultimately, Borja and Nan Moore were unceremoniously fired.
In compliance with what Kerr, Glasper, Woodard and Wright were demanding, then-City Attorney Todd Litfin structured the city code to allow for the indoor cultivation of marijuana within the city’s industrial park district, and then, full of misgivings about what he had just done, resigned immediately after the council in November 2015 passed those code changes into law. Litfin was replaced by Julia Sylva, who gamely sought to facilitate the city’s foray into the largely uncharted territory of making legitimized marijuana production a key element of a community’s economic foundation. Sylva burned out rapidly, leaving in April 2016 as a prodigious number of applicants flooded into City Hall, resulting in the city granting permits to no fewer than 25 cannabis growing operations in five months. Sylva was replaced as city attorney by Curtis Wright, of the law firm Silver & Wright LLP.
Simultaneously, the city hired Jessie Flores as its contract economic development director. Flores’ assignment was to encourage businesses to set up operations in Adelanto. His contract allowed him to concurrently find employment with any other entities, including any of those businesses he was seeking to interest in locating in Adelanto. This created, either inadvertently or purposefully, a potential laundering mechanism for kickbacks. Flores was authorized by the city to negotiate with any or all of the entities wishing to get into the lucrative cannabis cultivation business and offer them incentives to locate in Adelanto. At the same time, those businesses were free to “hire” Flores and pay him a fee for his services. It was soon widely reported that what was actually happening was Flores was making arrangements with the applicants for marijuana cultivation businesses to provide them with certain advantages as their quest for permits and licensing proceeded, which were then facilitated when those companies retained Flores’ services as a consultant. Reportedly, Flores was then sharing the money he received from those applicants with Kerr, Woodard and Wright, who then either voted to approve those applications or directed the city manager to facilitate their further processing.
As 2016 progressed, the statewide initiative Proposition 64, the Adult Use of Marijuana Act, qualified for the November ballot. If it passed, which it ultimately did, Californians over the age of 21 would be free to use marijuana not simply for its therapeutic effect but as an intoxicant as well. Anticipating Proposition 64’s passage, Kerr, Woodard and Wright dispensed with the ruse they had used to induce Glasper to support them in 2015, dropping any further pretense of being against the commercial sale of marijuana in Adelanto. They began the active planning of allowing both dispensaries and pot shops into the city, inside and outside of the city’s industrial zone. They further began preparations to welcome manufacturing businesses, ones that refined and converted the plants into various cannabinoids and other chemical substances, including THC – tetrahydrocannabinol – the active psychotropic ingredient in marijuana, for use as palliatives and liniments. By that point, Glasper’s dementia had advanced, and Kerr, Woodard and Wright manipulated him at will, obtaining his cooperation in virtually every action they were taking. Would-be marijuana entrepreneurs with dollar signs in their eyes filed into Adelanto City Hall, some with briefcases full of cash, money that was forked over as payoffs to ensure that the projects they were proposing would gain approval or that the property they were purchasing would be granted zoning for use as a commercially-related business where marijuana sales could take place.
Perceiving that contract City Engineer Wilson So, Assistant City Engineer Aaron Mower, Senior Planner Mark De Manincor and Conservation Specialist Belen Cordero were dragging their feet on making way for ever more cannabis-based operations in the city, Kerr had them fired or forced them into resigning.
In January 2017, Herrera, increasingly concerned about Flores’ activity in conveying the payoffs to the council members, used the opportunity provided her when Kerr was injured in a motorcycle mishap to suspend Flores. Upon recovering and returning to City Hall, Kerr moved to get rid of Herrera, who tendered her resignation as city manager, going without a fight, in return for which, she was allowed to move back into her former position as city clerk.
Kerr then arranged to bring Mike Milhiser in as city manager. Milhiser, who had previously served as city manager in Montclair, Ontario and Upland, was more than a decade into his retirement, and he accepted the temporary assignment in Adelanto. As a caretaker city manager, Milhiser was oblivious to the graft that preceded his tenure as city manager and turned a continuing blind eye to it over the next several months as its manifestations became apparent. Shortly after Milhiser was installed, Flores was reinstated by Kerr into the contract economic development post at even higher pay than he was previously receiving, and the kickback arrangements continued as before.
By late spring 2017, what was transpiring had grown to be too much for Curtis Wright, and he resigned as city attorney. It was at that point, at the recommendation of Milhiser, that Duran was hired as city attorney. If Duran did not know what he was getting into when he signed on as city attorney, he soon found out. Graft was everywhere. At the city council meetings, in front of Man, God and everyone else, including Duran, applicants would come into the council meeting chambers with envelopes full of cash which they would then provide to Misty Kerr, Kerr’s wife, intended for her “charity.”
As a retiree, Milhiser under California’s public employees retirement system was permitted to work only 960 hours per year for a public agency. As July was heading into August 2017, Milhiser had to depart as Adelanto city manager. The council replaced him with Gabriel Elliott, the city’s development services director. Kerr and Woodard confidently predicted when his hiring was officially announced in September that they believed Elliott was an ideal fit as Adelanto city manager.
From the outset, the plan to load the city’s industrial park district with indoor marijuana nurseries and cultivation warehouses suffered a crucial shortcoming. The utilities to service the existing industrial operations that were already located in the district were barely adequate. Water and electricity was in short supply, and the infrastructure and electrical generating facilities to supply them were non-existent. Because the city’s regulations called for the marijuana plantations to be located entirely indoors and fully enclosed, using sunlight as the light source to induce the growth of the plants – as occurs in nature – was out of the question. Similarly, Adelanto, located within the Mojave Desert where water is in short supply, was subject to the adjudication of water rights that had occurred in the 1990s as a consequence of a lawsuit filed against all of the Mojave River’s upstream users by the City of Barstow. To redress the limited availability of electricity and water in Adelanto’s industrial park district was going to require an investment of tens of millions upon tens of millions of dollars, considerable planning and engineering and time. Thus, prospective marijuana growers were caught in a frenzy not only to get business permits and state licensing but to secure properties where there was either existing available power and water or where those services could be readily obtained.
Though Elliott’s tenure as city manager began amidst an atmosphere of confidence that he would be able to work cooperatively with Kerr, Woodard Wright and Glasper to facilitate the marijuanification of Adelanto on a rapid pace that would result in a substantial economic turnaround, very early on in his time as city manager Elliott encountered an issue that virtually instantaneously poisoned his relationship with Kerr and his compadres.
On September 28, 2017, Kerr and Flores came to City Hall and asked Elliott to accompany them to the city’s corporation yard located in the city’s industrial area to meet with C.B. Nanda, a marijuana cultivator who had applied for a permit for his company, American Scientific Consultants, to grow marijuana in Adelanto the previous year. Nanda had been experiencing difficulty, however, finding a property that had the requisite water and electrical utilities that would allow a marijuana cultivation operation to flourish.
Nanda was intent on purchasing the city’s public works yard, located at 17451 Raccoon Avenue, Kerr and Flores told Elliott. The public works yard property included two two-story metal buildings on the property. Given the range of activity at the yard, the facilities there had been augmented with electrical and water utilities and infrastructure to support a cornucopia of city operations. It was spelled out that Nanda already had a deal in the works to sell or lease portions of the property at significant profit to a group of other marijuana cultivators. Kerr offered assurances that the arrangement was going to be a safe and lucrative one from the standpoint of everyone involved in that the ultimate sale of the property was to be to an agent of U.S. Congressman Dana Rohrabacher, who would in exchange for the sale provide protection to Adelanto from any federal raids of the marijuana cultivation and consumption industry within Adelanto. Flores on the spot offered Elliott a sales agreement conveying the property to Nanda, which he asked Elliott to sign. Elliott, feeling he was being stampeded, stalled for time, saying he would look into it.
Look into the proposed sale Elliott did. Located within one of the buildings was the city’s emergency operations center, which had been constructed on the site and outfitted through a $375,000 grant from the U.S. Department of Homeland Security the city received expressly for that purpose in 2011. In addition, the buildings and surrounding facilities housed the city’s public works department, its motor pool, its maintenance divisions, indeed the entirely of the city’s physical operations that needed augmentation in terms of equipment functionality, mechanical service support, storage, repair and other applications. Conservatively speaking, the city had invested well over $3 million in establishing the structures and facilities on the property, which in any case could not have been replicated for less than $4 million in 2017 dollars, Elliott calculated. That calculation did not include the value of the 1.5-acre property itself. The amount of money Nanda was offering to make the purchase and which Kerr and Flores were insisting the property be sold for – $1 million – was way under market, Elliott recognized.
Several days later, when Kerr came into the office and demanded that Elliott proceed at once with the sale, Elliott informed the mayor that in good conscience he could not allow the sale to go forward. This sent Kerr into orbit, as he insisted the sale had to be made and not for a penny more than the $1 million Nanda was willing to pay. There were further exchanges between Kerr and Elliott, including escalating demands from Kerr, many of them in rather profane terms. Ultimately, in his inimitable fashion, Kerr gave Elliott to understand that he and Flores were to receive financial kickbacks from the sale of the property, and that this was to be a good deal for everyone involved.
Even with Kerr offering to cut him in on the deal, Elliott refused to budge, at which point the honeymoon between Elliott and the council troika of Kerr, Woodard and Wright came to an abrupt end. Simultaneously, Kerr, Woodard and Wright in private were ordering Elliott to have the city’s code enforcement division “stand down” in its enforcement of the city’s codes and regulations, including restrictions that prevented those businesses from operating before a host of inspections and plan check milestones were reached and signed off on. Additionally, Kerr, Woodard, Wright and Flores were pressuring Elliott to fire several city employees they considered to be obstructionist with regard to the city’s accelerated march toward permitting as many cannabis-related businesses as possible to set up operations in the city.
On October 27, 2017, Elliott made the first of two sojourns to the office of the FBI to make a report of Kerr and Flores’ illicit deal regarding the city’s public works yard and other violations of the law engaged in by city officials. According to Elliott, Duran accompanied him to one of those meetings with the FBI. Elliott disclosed to the FBI that Kerr was provided with a $200,000 bribe for arranging the sale of the city’s public works yard and that a means of obtaining bribes from marijuana-related business permit applicants that Kerr used was through those applicants so-called “donations” to what was represented as Kerr’s wife’s non-profit 501c charity, which, in fact, Elliott reported, never attained non-profit status. Kerr would often solicit these donations from individuals and businesses who were doing business with the city, causing these individuals and businesses to feel “forced” to donate in order to have Kerr “get things done” in the city, Elliott said. Moreover, Elliott, related, Kerr used Flores and other city employees to collect some of the money for him. At one point, Elliott told the FBI, Kerr had received a $30,000 bribe through the city’s then-public works director, Don Woppler.
In November 2017, the FBI moved to arrest Councilman Wright after Wright, who had grown envious of the arrangement that Flores had in which he was able to “legally” accept money in the form of consulting fees provided by applicants for marijuana-related business permits in the city, sought to cash in further on the city’s ongoing marijuana bonanza. Wright had engaged in dialogues with an undercover FBI agent who represented himself as an applicant for a permit and license to operate a marijuana distribution facility in Adelanto. In exchange for money, Wright committed to using his authority as a council member to ensure that the city’s code enforcement division would not interfere with the distribution company’s operations. Wright was arrested after he accepted $10,000 from the FBI agent in form of 200 marked $50 bills that were laid before the councilman during his last encounter with the undercover agent.
While Wright’s arrest momentarily shocked the sensibility of the Adelanto community, it did not seem to give Kerr, Woodard or Flores pause. They continued with their efforts to push the aggressive marijuana-related business development in the city, and the effort to personally profiteer from it.
Duran, as city attorney, acted curiously in the aftermath of the Wright arrest and Elliott’s revelation to the council that he was in contact with the FBI. In at least one regard, that pertaining to the sale of the city’s public works yard, the full details of which had been brought to the attention of the FBI by Elliott, Duran seemed to act forthrightly and support Elliott’s position. On November 9, 2017 Duran in his capacity as city attorney wrote to Dimitri Gross, a lawyer representing Nanda’s company, American Scientific Consultants LLC, that the city was terminating the written purchase agreement which Elliott had been effectively blocking by refusing to sign. Duran told Gross that previous statements by city officials and city staff that Nanda and American Scientific Consultants were relying upon to insist that the city had made a binding commitment to enter into the sales agreement were inoperative because those city staff members, who were acting under illegal orders by Kerr that did not reflect a collective vote of the city council, rendered them null and void. An examination of the arrangements for the sale, Duran wrote, had resulted in the city “recently” discovering that the proposed sale was riddled with conflicts of interest. His letter stated those “legal conflicts of interest may call into question the validity and enforceability of the contract,” raising, Duran stated, “serious questions of public policy and whether the public interest may be harmed by the contract.”
Nevertheless, Kerr, Woodard and Flores continued to militate against Elliott, and Duran remained either neutral or in some cases it appeared supportive with regard to the mayor and Councilman Woodard assailing Elliott.
Despite Duran’s letter to Gross, Kerr publicly asserted that the sale of the public works yard was in the city’s best interest because it could use the $1 million in proceeds from the sale to create needed infrastructure. While Kerr and Woodard were no longer able to count upon the support of Wright, who was in federal custody and in January 2018 was removed from the city council in compliance with state law requiring the expulsion of a councilmember who is absent from regular council meetings for more than 60 days, Glasper was falling further and further into a state of dementia, which allowed Kerr and Woodard to manipulate him. Duran, who had explicit knowledge that Elliott was in touch with the FBI with regard to allegations of illegal activity on the part of Kerr, Woodard and Flores, in no fashion countered efforts by Kerr to remove Elliott as city manager. After scheduling several “performance reviews” of the city manager in closed sessions in November and December 2017 which were attended by Duran, the council in December 2017 suspended Elliott as city manager. Thereafter, the council brought Milhiser back to serve as interim city manager.
With Milhiser in place, Kerr and Woodard in the late winter and spring of 2018, pushed ahead, and in conjunction with Flores facilitated the permitting of ever more cannabis-related businesses, continuing to intimidate the city’s code enforcement and development services divisions into allowing the projects to proceed without close regulation or adherence to code. In May, the council hired Brad Letner, a former Army colonel who was at that point serving as the Hesperia Chamber of Commerce’s executive director, to come in as city manager. Simultaneously, the city was moving toward an election to replace Wright, with Kerr and Woodard advocating for the candidacy of Joy Jeannette, a 79-year-old woman heavily supported by the cannabis industry.
That month, the FBI carried out a raid on Kerr’s home and Adelanto City Hall, seeking evidence tying him to to graft relating to the efforts to establish literally hundreds of marijuana-related business operations in the city.
In June, Jeannette outdistanced her two opponents in the special election to replace Wright, thereafter taking her place on the city council as Kerr’s puppet. With the November 2018 election approaching and both Kerr and Woodard conscious that as a result of the controversy enveloping them and the city they might not politically survive, they became ever more frenzied in their efforts to effectuate the establishment of the cannabis industry in the city and complete a series of favors for those who were lining their pockets while they yet had the authority to do so.
Previously, toward the end of December 2017, American Scientific had sued the City of Adelanto for $5 million for reneging on the sale of the public works yard and breaching the written agreement for its sale. Backed with Jeannette’s vote, Kerr and Woodard settled the suit and the council approved the $1 million purchase and sale agreement relating to the city’s public works yard with AMN, LLC , a subsidiary of American Scientific Consultants, in a specially called rare afternoon meeting on July 16, 2018 which was not attended by Camargo, who was virulently opposed to the sale, or the at-that-point non compos mentis Glasper.
Kerr, Woodard and Jeannette then fired Letner and put into his place Flores, whose reliability in carrying out their every command was an absolute given. Thereafter, money was being exchanged freely between cannabis-project applicants and the city’s political leadership, in particular Kerr and Woodard, in return for which business permits were provided or changes to city zoning effectuated to allow those purchasing property within the city outside the cannabis sales zone to instantaneously increase by four-, five-, six-, seven-, eight-, nine- or ten-fold the value of their real estate by its transformation into commercial property where marijuana sales were permitted.
Concerned that Cindy Herrera, who remained as city clerk and was knowledgeable about all elements of municipal operations, was the weak link in the unbridled pay-to-play free-for-all that was ongoing at City Hall, Kerr and Woodard assented to having Flores, who was still sore at Herrera for her January 2017 suspension of him, fire her.
It was shortly thereafter that Duran, taking stock of the atmosphere of utter lawlessness that had pervaded city operations, concluded that the matter had become unacceptable even to him. He tendered his resignation. In doing so, however, he gave no hint that anything was amiss. Saying he found his “thirteen-and-a-half months legal work” as city attorney “intense, sometimes challenging, but always fulfilling,” Duran stated, “I find that I must regretfully tender my resignation as your city attorney, effective as soon as the council is able to secure a new city attorney. Godspeed and good luck.”
Subsequently, both Elliott and Herrera would file suit against the City of Adelanto, including Kerr and Woodard, alleging they had been unjustifiably terminated and subjected to mistreatment, and were punished for whistleblowing. Duran figures prominently in both of those suits. Elliott calls Duran a “tacit co-conspirator in allowing the illegal conduct to occur without protest or resignation.” Herrera is only slightly more charitable to Duran.
In 2018, in reaction to Elliott’s lawsuit, Duran told the Sentinel, “The allegations in the complaint related to my alleged conduct, action or inaction are utterly without merit, completely untrue and outrageous.”
When pressed as to whether he had been present at any of the meetings Elliott had with the FBI where evidence of the bribetaking by Kerr, Woodard, Wright and Flores was provided to the federal agents and whether he had an explicit understanding of what that evidence entailed, Duran deflected the question. “I am bound by the attorney-client privilege not to disclose the details or content of any communications with or on behalf of my client, and I would never discuss any meetings or interactions with federal law enforcement unless authorized to do so,” he said.
In hiring Duran, Ontario is getting an attorney whose philosophy of legal service is indistinguishable from that of his firm. Throughout Southern California, Best Best & Krieger lawyers are recognized for cutting through the debate on whether city attorneys represent the city council or the city’s residents by interpreting the various city councils that they work for as being the political embodiment of the residents who have elected them. In this way, whenever a question arises as to whether a course of action a council majority wants to take is in the true interest of the residents that council represents, Best Best & Krieger lawyers universally hold that through the elective process the council has obtained the status and right to act as if it embodies the entirety of the citizenry, and is thus absolute in its decision-making authority. Duran repeatedly demonstrated this during his tenure as city attorney in Adelanto.
The five members of the Ontario City Council – Mayor Paul Leon, Councilman Alan Wapner, Councilman Jim Bowman, Councilwoman Debra Dorst-Porada and Councilman Ruben Valencia – have the utmost confidence that in any matter in which they become entailed, Duran is going to be loyal to them.
The 42,000 members of the San Bernardino County Employees’ Retirement Association were provided with two disheartening disclosures at the association’s board meeting held on Thursday, August 6. Most shocking was that in the last year, the association suffered a $272.43 million loss on its investments.
Moreover, the membership was informed, as a result of the so-called Alameda decision, members will no longer be able to include standby pay, on-call pay, and call-back pay or other add-ons with their salaries to calculate their pension allotments. Those who were receiving pensions since 2013 based on incorporating such add-ons into their salary totals in all likelihood will need to make refunds to the retirement system, although that decision has yet to be officially made.
The San Bernardino County Employees’ Retirement System manages the monetary pool that provides the pensions for retired San Bernardino County employees, as well as for the retirees from 15 other public agencies, including the Barstow Fire Protection District, the Big Bear Fire Authority, the California Electronic Recording Transaction Network Authority, the California State Association of Counties, the City of Big Bear Lake, the City of Chino Hills, the Crestline Sanitation District, the Department of Water & Power of the City of Big Bear Lake, the Hesperia Recreation and Park District, the Law Library for San Bernardino County, the San Bernardino County Local Agency Formation Commission, the Mojave Desert Air Quality Management District, the San Bernardino County Transportation Authority, the South Coast Air Quality Management District, the Superior Court of California, as well as the staff for the San Bernardino County Employees’ Retirement Association itself.
Known by the acronym SBCERA, the San Bernardino County Employees’ Retirement Association and those associated with it have long touted it as one that is more competently managed and achieving greater investment returns than the pension system for the State of California and an overwhelming number of the municipal and county governmental entities in the state, the California Public Employees Retirement System.
Recent developments and challenges, however, have resulted in SBCERA not only failing to meet its investment return goals, but actually experiencing losses that have caused the $10.46 billion in total assets it had last year to attrite to $10,102,541,405.
What’s more, the San Bernardino County Employees’ Retirement Association in the same period paid its investment managers $109,823,343.
As a consequence, one member grumbled, “SBCERA paid investment managers 1.29% to lose 3.2%. We also paid our investment staff six figure salaries plus bonuses. The board oversaw and approved all that.”
In 2012, at the instigation of then-California Governor Jerry Brown, the California legislature passed the Public Employees’ Pension Reform Act, which eliminated pension spiking in California’s public retirement systems. Pension spiking would be effectuated by government employees working extra shifts and receiving overtime pay, working odd hours at higher pay and/or cashing out out accumulated vacation, sick or family leave and/or training, education, clothing, vehicle, phone or computer allowances in the last year of their employment to inflate their final compensation to increase their pension allotment.
The Alameda County Deputy Sheriff’s Association filed a lawsuit in 2012 over the then-proposed and later-initiated pension system reforms in an effort to preserve those types of pay and benefits as pensionable. A public employee union in Merced County filed a similar lawsuit, making it one of the plaintiffs in the case.
In San Bernardino County, the San Bernardino County Employees’ Retirement Association did not abide by the terms of the Public Employees’ Pension Reform Act pertaining to no longer using add-on pay to increase the quantification of final year salary in determining an employee’s pension level, on the expectation the Alameda County/Merced County case would be adjudicated in the unions’ favor.
On July 30, the California Supreme Court ruled against the public employee unions in the Alameda case.
The Public Employees’ Pension Reform Act created a two-tier public employee pension system standard, one of which was applicable for then-existing public employees, which because of its generous terms was threatening to eventually bankrupt the state’s various public employee retirement systems, and a far less generous pension system standard for those hired after December 31, 2012. The Alameda County sheriff’s deputies argued that they were entitled to engage in pension spiking because they were hired prior to January 1, 2013. The Alameda County and Merced County plaintiffs cited the “California Rule,” a legal precedent dating to the 1950s that has protected public pensions from reductions unless new and equal benefits were offered to public employees to offset the benefits removed.
Chief Justice Tani Gorre Cantil-Sakauye in the court’s ruling found that using the standard of the Public Employees’ Pension Reform Act in closing pension spiking loopholes previously enjoyed by public employees hired prior to January 1, 2013 was not unconstitutional, and that the goal of closing such loopholes was a “proper objective” of the legislature. “It would defeat this proper objective to interpret the California Rule to require county pension plans either to maintain these loopholes for existing employees or to provide comparable new pension benefits that would perpetuate the unwarranted advantages provided by these loopholes,” Cantil-Sakauye wrote in the court’s decision.
During Thursday’s meeting, held remotely using the Zoom application, several San Bernardino County Employees’ Retirement Association members advocated against the association complying with the Alameda decision direction.
Phillip Hubbard, a SBCERA member, said that elements contained in the benefit package given to association members in 1982 did not constitute pension spiking.
San Bernardino County Employees’ Retirement Association member William Richards said that the benefits impacted by the Alameda decision were ones that were used as “a recruitment tool” to convince some SBCERA members to accept positions, and that it is unfair to take those benefits away retroactively.
SBCERA member Mark Henninger said that current employees and retirees “had a lot invested in retirement, and that is now being pulled out from under us.”
Grant Ward, the legal representative for the Sheriff’s Employees Benefit Association, said that the County of San Bernardino and SBCERA were contractually bound to keep the pension spiking provisions in the sheriff’s deputies’ pension calculations intact because during contract talks between the sheriff’s union and the county, “We negotiated to make standby and overtime pay pensionable.”
Former Assistant District Attorney Gary Roth questioned if “[the] Alameda [decision] is applicable to already retired employees.”
Fred Miassian, a San Bernardino County Employees’ Retirement Association member, said “Health benefits are not a one-time spike. You are putting us in a position where we have no recourse.”
Dennis Hayes, counsel for Teamsters Local 1932, which represents the bulk of San Bernardino County’s non-safety employees, told the board that the Supreme Court’s decision will not be final for thirty days.
“SBCERA should not act at all until the Alameda decision is final,” Hayes said.
The Bernardino County Employees’ Retirement Association Board, however, authorized a statement that “The court said that the retirement systems must follow the statute and do not have the authority to disobey the statute once it became law. The SBCERA Board of Retirement adopted a resolution that requires SBCERA to immediately comply with the Alameda case and the Public Employees’ Pension Reform Act changes to compensation earnable.”
In explaining what is motivating her to seek election to the Montclair City Council this year, 18 months after she was appointed to that panel, Tenice Johnson contrasted her former home with her current one.
“In 1991 my family moved from South Central Los Angeles to Montclair. Our Los Angeles neighborhood had been so nice and quiet when we first moved in but as years passed we found ourselves surrounded by drug dealers, and afraid to go outside wearing the wrong color. I hate moving, and I never plan to leave Montclair. Therefore, I have to be responsible for the community where I live. I can’t depend on others to keep the neighborhood safe. It is my job to be a part of the solution. Consequently, within months of moving here I started volunteering to support this community. My specific focus may have shifted, but my service to this community has been unwavering.”
In February 2019, the city council elevated Johnson, who at that time was on the planning commission, to the city council. The appointment was necessitated after John Dutrey was elected mayor in November 2018 with two years yet remaining on his term as councilman. The council for eight weeks thereafter deadlocked, with councilwoman Trish Martinez and Carolyn Raft on one side and Dutrey and Councilman Ruh on the other, over whom to appoint. At last they compromised on selecting Johnson.
Johnson said that at this point, after serving in the post for a year-and-a-half, “I believe I am qualified to hold the position of city councilperson based on my experience in this city. I sat on the board of directors with the Neighborhood Partnership of Montclair, where we addressed housing needs of residents. I was appointed to the Community Action Committee to address social and recreational needs of our community, and lastly I spent twenty years as a Planning Commissioner addressing development and infrastructure issues. I currently spend several hours a day volunteering at the Montclair Chamber of Commerce to help support local businesses.”
Johnson said she was reluctant to contrast herself with the other candidates in the race by discussing in detail what distinguishes her from her electoral opponents, given how little she knows about them.
“At this point in time, I am not sure who my opponents are, since the filing period will be open for several more days,” she said earlier this week. “However, I think the work I have done in this community for nearly thirty years sets me apart, as my experience provides knowledge that my opponents may not have.”
In sizing up the major issues facing the city, Johnson said, “Shortly after my council appointment last year, I sent a query out to the community, letting residents know that I wanted to be their voice and asking them what they wanted me to do. The response was resounding. Residents reported that they wanted more police, more police at schools, more police patrolling the streets. They wanted potholes fixed and, by the way, more police. Well, police are expensive and our budget is finite. So we need to find new ways of generating revenue.”
Johnson said, “In the midst of recent unrest, there have been many calls to defund the police. I believe the opposite should be true. We need to ramp up the police, not just with more officers. We need to add social workers and mental health professionals who are available to work 24/7 in concert with police officers.”
In addressing how the city will pay for the increase in police presence she is proposing, Johnson said, “There is an effort to put a 1 percent retail sales tax on the November ballot. It is important to note that this is not a utility tax. It is not a property tax. It is not a grocery tax. It is a retail sales tax. Most of this revenue will be generated by people who shop in Montclair, but don’t necessarily live in Montclair.”
Her previous experience relating to government, she pointed out, consisted of her presence on the city council since February 2019, her service on the planning commission from 1999 until last year, her participation as a member of the Neighborhood Partnership of Montclair Board from 1996 to 2002, her participation in the state-mandated Successor Agency to the Montclair Redevelopment Agency as an oversight board member from 2012 until 2018, and her participation in an appointed capacity with the Montclair Community Action Committee from 1993 to 1999.
Johnson was also selected as the Montclair Woman of the Year in 2014.
Johnson attended high school in Detroit, Michigan. She has a bachelor of science degree with a focus in business management. She began attending college at Saginaw Valley State College in Michigan. “Then life happened,” she said. “I finished at the University of Phoenix in Ontario.”
In 2009, she retired as a healthcare administrator from Kaiser Permanente.
Johnson married her husband, Warren, in 1981. “We have two children, Elizabeth and Warren Jr.,” she said. “Our daughter and her husband have two daughters, Alana and Alexis. Our son and his wife have two sons, Joseph and Jalen.”
Johnson said, “It is my desire to be the voice of the people. When the residents speak, it is my job to make their voices heard.” She encouraged Montclair’s residents who are of the age of majority to register to vote if they have not already done so to “Vote Tenice Johnson, your voice for a safe and vigorous Montclair!”
Jim Gallagher said, “I am running for Chino Hills City Council in District 3 in the November 3, 2020 election because open space, traffic and safety is threatened, housing and development is dysfunctional, there is high business turnover, slow bureaucratic public services, increasing cost of living with city taxes, fees, and permits on the rise, lighting and landscaping fee disparities with decreasing services, gentrifying neighborhoods, and a new diverse population that deserves representation. I have lived in Chino Hills for nearly 30 years. I love this beautiful city, and it is time to bring a new perspective to how our city government operates.”
Gallagher said he is qualified to hold the position of city councilman based on his education and community involvement. He has a bachelor of arts degree in sociology and psychology and has completed graduate work in political sociology from California State University, Fullerton. He subsequently obtained a masters degree in business administration from Redlands University, and holds a professional certificate from the Human Resources Certification Institute.
His community involvement includes serving on the board of directors of and as an ambassador for the Chino Valley Chamber of Commerce, being an original member of both the Save Tres Hermanos Ranch collective and the Concerned Parents/Residents of the Chino Valley Unified School District. He is an active member of the Senior 55+ Club and the vice president of the Dog Park for Chino Hills Committee. He is active in Democratic Party politics, as the current second vice chair of the San Bernardino County Democratic Party, the vice president of the Chino Valley Democratic Party, as the Assembly District 55 delegate to the California Democratic Party; as a member of the board of directors for both the Build the Bench California 39 Program and the Build the Bench Political Action Committee.
Gallagher maintains he is distinguished from the others seeking election to the Chino Hills City Council in District 3 based on his past involvement in land use designation issues within the city, volunteerism, community improvement and enhancement efforts, and his advocacy of installing non-ideologically driven school board members and preventing the intrusion of religious dogma into public school classrooms.
“My wife and I were members of the Citizens’ General Plan Advisory Panel shortly after city chartering in the early 1990s. The 1993 and 2014 general plans for Chino Hills promote the vision of open space and a rural-like atmosphere, and our development code and other city documents flow from that,” Gallagher said. “Not long after the general plan was adopted, I actively campaigned with a city-wide group to preserve the beauty of Chino Hills, which sought to assure no changes to the general plan would be implemented unless it came to a majority vote of the community. This was especially important as Chino Hills began to develop homes, parks, institutions, and businesses. This vision hasn’t always met the expectations of the residents.”
Gallagher said, “I joined with my Green Valley neighbors in the mid-1990s to challenge a large residential development which was designed to completely level a beautiful ridge in my neighborhood and replace it with thousands of houses. We successfully re-envisioned the plan, and worked with the developers and city staff to envision an acceptable residential development that reduced the housing numbers, preserved the ridge, hid the houses below the ridgeline from view, and satisfied all parties involved. I learned people working together can make a difference.”
He and his wife, Gallagher noted, “participated in the Chino Hills identity marker program, based on community input, at a workshop and tour in 2002, which designated the type and location of all city identity markers at its entrance boundaries. They stand to this day.”
Gallagher attended and graduated from the volunteer Citizens Network Neighborhood Leader Program in the late 1990s, which “is designed for neighborhood advocates to receive a well-rounded overview of municipal government and the services, tools, and resources available to all residents, while understanding city government and neighborhood problem solving,” he said
“I helped form and champion a group against illegal maternity hotels in our residential neighborhoods,” Gallagher said. “Our advocacy brought about a recent city ordinance to regulate illegal boarding for profit in our residential neighborhoods.”
Gallagher was a board member of the Dog Park for Chino Hills Committee, which ultimately led to the placement of the community dog park within the Vila Borba subdivision.
“I believe our small business community is vital to support the needs of our residents in many ways, so I am a very active Chino Valley Chamber of Commerce ambassador and board of directors member,” Gallagher said.
Gallagher noted, “I am part of the core Concerned Citizens of the Chino Valley Unified School District, which seeks to advocate and promote responsible candidates to our school board. We believe our children deserve top notch school board support in our school district.”
Gallagher is a member of Neighborhood Voice, which is working with city staff to deal with what Gallagher called the “looming” landscape and lighting maintenance funding shortfall in Chino Hills and what he said would be “a fair solution for all neighborhoods.”
Gallagher said, “I have co-led with Chino Hills and Diamond Bar partners the Save the Tres Hermanos Ranch group. Our group seeks to keep that beautiful 2,445 acre piece of land open and in a natural state for all of us to enjoy.”
Noting that “Our senior population is growing,” Gallagher said he is a member of the Chino Hills 55+ Club supporting the needs of senior residents and senior veterans. “Our group was instrumental in securing a veteran’s memorial at our community center, honoring our four branches of the military and past and present veterans and their families,” Gallagher said.
“We were supporters of Hope for the Hills, which successfully influenced the California Public Utilities Commission to stop the Tehachapi Tower power lines from impacting our central neighborhoods and put them below-ground instead,” Gallagher said. “I and my wife Kathy attended the final hearing in San Francisco that supported the City of Chino Hills lawsuit and ordered Edison to take down the towers.”
In sizing up the major issues facing the city, Gallagher said, “The pandemic exposed the unreliability of our city’s current fiscal plan. We need a new vision that both improves our quality of life and protects the character of our community.”
Gallagher said that in Chino Hills, “Open space, traffic and safety are threatened. I want to continue to preserve and protect our quality of life.”
Gallagher said, however, that development will continue. “Housing and development is not meeting everybody’s needs, shutting out young and new family buyers,” he lamented. “I want to negotiate housing opportunities that address this and provide great inclusive neighborhoods in the process.”
The city is plagued by instability in its commercial base, Gallagher opined. “Frequent small business turnover fails to support a stable commercial environment for our city,” he said. “I want to leverage the chamber of commerce to sustain our first time and home based businesses.”
Chino City Hall is not living up to its responsibility to the taxpayers, Gallagher said. “Variable public service response time adds to residential confusion,” he said. “I would like to introduce a customer-friendly process-based approach to city services that rivals our surrounding cities. With the increasing cost of living and city taxes, fees, and permits on the rise, I would like to re-visit our fee and permit schedules on the budget.” Gallagher said the city’s “public funding model shows fee disparities that result in decreasing services in order to meet budget obligations.” He said the city’s “original founding neighborhoods” present the city “with special issues.”
Chino Hills has, Gallagher said, “an increasingly diverse population (age, gender, culture, religious) that deserves representation.”
Gallagher said, “Even though Chino Hills median household income is about $104,600 and an individual median income close to $42,200, we are in the throes of an economic crisis due to the pandemic shutdown. The income gap is widening and needs to be addressed. Rents, leases, payments, fees, and taxes have not gone away. Chino Hills has been ranked #38 on Money Magazine’s 2019 list of the “100 Best Places to Live.” I want to help our city government, businesses, and other institutions move us closer to the #1 best place to live, as your council member commencing 2020.”
He said, “What I am proposing does not necessarily require an increase in taxes or fees but a re-purposed budget. Chino Hills has been fiscally sound for decades and has a general fund reserve of $43,838,984 which is shrinking each year and may be threatened overall with the current economic climate. The city brings in a comfortable amount of fees from facility rentals, permits, and special events and it has all been cut off due to the economic downturn. I am suggesting a new look at budget appropriations, which could result in some service rollbacks and re-allocations elsewhere. I know some communities are looking at public safety or police budgets, but our city dedicates less than 35 percent for contract services to the county sheriff and has the advantage of county resources as a result. So the re-allocations will have to come from elsewhere, which could be thoughtfully administered, in dialogue with the various neighborhoods, that are served.”
Gallagher grew up in New York, and graduated from North Rockland High School in Haverstraw.
He is a retired aerospace company human resources specialist, having worked in employee development for 30 years.
Gallagher said, “One of my favorite quotes is Albert Einstein’s ‘Never memorize something that you can look up.’”
Lee Kaberlein, who is challenging incumbent Bobby Duncan in the November election for the city council position representing the Third District, said, “I’m running because Yucaipa has become a microcosm of America, in that we are a divided city. Our political differences turned into violence on June 1st amid the Black Lives Matter and George Floyd protests. I believe Yucaipa and District 3 need a leader who can bridge the divide, and help heal our city.”
In discussing his qualifications to hold the position of city councilman, Kaberlein said “I got my first job at Sears when I was seventeen. I learned through that job and subsequent jobs that I was good at customer service and am a people person. It gave me great pleasure to serve the public in that capacity. I think my temperament and ability to empathize with all people will serve me well on the city council.”
Kaberlein said he is clearly distinguishable from the incumbent.
“Unfortunately, Bobby Duncan is unable to act professionally in his current position as councilman, and has sadly stirred up controversy through his Facebook page,” Kaberlein said. “His behavior on June 1st demonstrated that he either can’t or won’t represent all Yucaipans, only those who share his political views. A real leader is able to unite people, not divide them. I have that ability. It’s a great strength of mine.”
Kaberlein said there are several major issues facing the city.
“Yucaipa has suffered greatly like other American cities from the opioid crisis,” he said. “Addiction is a major issue for Yucaipa that affects everyone here one way or another. Crimes like theft and burglary put a strain on our law enforcement officials. Law enforcement is not equipped to solve the problem of addiction.
“One issue that our city will likely soon face is increased evictions and foreclosures,” Kaberlein said. “COVID-19 has greatly impacted people’s ability to stay above water financially. It has also put many of our small businesses at great risk of closing permanently.
“Climate change is by far the greatest challenge humans have faced since World War II and the Cold War,” Kaberlein continued. “Our very survival is at stake. Yucaipa is not immune to the threat of the climate crisis.”
Kaberlein said, “I believe when it comes to addiction and crime there should be a two-pronged approach. As councilman, I will work with San Bernardino County, local addiction advocacy groups, churches, and charities to address the needs of veterans, addicts/alcoholics, the homeless, and mentally ill in our city. The next approach is law enforcement and citizens patrol. Since the city’s budget can’t pay for an adequate police force at the moment, I believe it would be more cost effective right now to beef up our neighborhood watch programs, and citizens patrol. An increased presence of volunteers from the community can begin to discourage theft, and robbery. It’s a complex issue that will take time and effort to solve.
“As far as evictions and foreclosures, our local government needs to make renters, home owners, businesses owners and commercial property owners more aware of the resources the state of California, and the federal government have made available to them,” Kaberlein said. “If elected I will work tirelessly to help in any way I can to get Yucaipans the resources they need to survive the pandemic and economic crisis we are in.”
Kaberlein said, “When it comes to climate change, I will work with the county, state, and federal government to get funding to the City of Yucaipa so that we can begin to modernize our infrastructure for the 21st Century. I will work to increase the percentage of renewable energy Yucaipa uses for its energy needs. This would include vehicle charging stations at public buildings and commercial parking lots, and increased solar power for commercial, public, and private properties.”
His proposal to pay for the solutions he has suggested to improve Yucaipa, Kaberlein said, would come “through public grants from the state and federal government.”
His previous experience relating to government, he said, consists of being an avid and engaged observer of how the government’s elected decision-makers function, Kaberlein said.
“I have attended local city council meetings, and spoken out on various public issues,” he said. “I keep myself informed on public policy as much as I can.”
Kaberlein has lived in Yucaipa 6 years. A Southern California native, he has also lived in Portales, New Mexico for 7 years, and in Odessa and Austin, Texas for four years.
He attended Redlands High School his freshman year, and Hesperia High School the final three years of his public education. He has an associates degree in secondary education from Odessa College.
He is a custodian/housekeeper at Forest Home Christian Camp in Forest Falls, but has been furloughed as a result of its closure because of the COVID-19 pandemic.
He is single.
“I believe I can be a positive influence in Yucaipa for our residents and our youth as well,” Kaberlein said. “I’d love for our students to learn about the importance of civic engagement, and that they have the power to effect positive change.”