(August 31)  Now that the law firm of Jones & Mayer is assuming the role of Upland’s city attorney, knowledgeable insiders are turning their attention to a single question: Will the new firm acquiesce in having one of the city’s leaders – lame duck councilman Ken Willis – subjected to questioning under oath?
An agreement to do just that could save city taxpayers an estimated $25 million plus close to another million dollars in legal fees. To date, however, under the guidance of previous city attorneys, the city has balked at allowing the county to take Willis’s deposition. One of the first orders of business for Jones & Mayer and the attorney with that firm, Kim Barlow, who has been designated to serve as Upland city attorney, is to decide whether to let Willis answer the questions the county wants to ask.
The Jones & Mayer firm was hired as Upland city attorney at least in part because the firm that formerly served in that capacity, Richards Watson and Gershon, was running up legal bills city officials considered excessive. A significant case being handled by Richards Watson & Gershon for the city is a lawsuit brought by the county of San Bernardino against the city, the state Department of Transportation (Caltrans) and the county’s transportation agency, San Bernardino Associated Governments, known as SANBAG. That lawsuit relates to Upland’s approval of the Colonies at San Antonio residential and Colonies Crossroads commercial developments and the $102 million settlement cost the county sustained when the developer, the Colonies Partners, sued the county over flood control issues after the county built the 20th Street storm drain at Upland’s behest in conjunction with Caltrans’ extension of the 210 Freeway across property owned by the Colonies Partners. More than four years ago, the county offered to settle the case with Upland for $2 million. Richards, Watson & Gershon, on behalf of the city, declined that offer. The city has paid $4.9 million in legal fees to Richards Watson & Gershon to defend it against the suit, nearly two-and-a-half times the amount of the settlement offer.
The city has potential liability in the scores of millions of dollars because it had requested that the county flood control district build the 20th Street storm drain. Further, it was the city of Upland that had given approval to the Colonies projects, which were built on property once owned by the San Antonio Water Company and which were criss-crossed with flood control easements recorded in the 1930s. It was the county’s action in constructing the terminus of the 20th Street storm drain so that it vectored water into a flood control basin covered by one of those easements which led to the Colonies Partners’ suit against the county. At issue in the county’s suit against Upland is the city’s negligence in approving the Colonies projects without clearly demarking responsibility for the provision of infrastructure, such as flood control basins and channels, to accommodate the project.
The Colonies Settlement case must go to trial by October. In addition to the $2 million settlement offer made by the county, there have been intensive backroom negotiations between the city, its emissaries and county officials and representatives aimed at forming a settlement short of trial. According to reliable sources, an accommodation that would have brought an end to the litigation without any monetary burden on Upland has been forged by intermediaries and tentatively endorsed by both of the county supervisors whose districts cover Upland – Second District Supervisor Janice Rutherford and Fourth District Supervisor Gary Ovitt – as well as county chief executive officer Greg Devereaux. The terms of that settlement would have required that Upland consent to some of its officials – most importantly city councilman Ken Willis – submit to an intensive round of questioning, including being subjected to a deposition, that is, questioning under oath. Willis was part of the city council that endorsed the Colonies projects, as well as the 20th Street Storm Drain undertaking. He was also a political ally of former Upland mayor John Pomierski. The Colonies Partners were major Pomierski backers, having made considerable monetary donations to his electioneering fund. Pomierski in return was highly supportive of the Colonies at San Antonio and Colonies Crossroads projects. In 2011 Pomierski was indicted by a federal grand jury on bribery, extortion and conspiracy charges. He pleaded guilty to bribery earlier this year and was sentenced in August to two years in federal prison.  Like Pomierski, Willis received hefty campaign contributions from the  Colonies Partners. In 2010, former county supervisor Bill Postmus was indicted by a specially-impaneled state/county grand jury on bribery and extortion charges related to his vote in 2006 to approve the county’s $102 million settlement with the Colonies Partners. In 2011 he pleaded guilty to those charges. Subsequently, Jeff Burum, one of the managing principals in the Colonies Partners, and former county supervisor Paul Biane, who voted with Postmus in 2006 to approve the $102 million settlement, were indicted by another specially-impaneled criminal grand jury and charged with involvement in the same bribery, extortion and conspiracy scheme that involved Postmus. That indictment alleged that $100,000 donations made by Burum to political action committees formed or controlled by Postmus and Biane were actually bribes made to reward them for their votes to approve the $102 million settlement. For more than two years beginning in 2004, Bill Postmus was the chairman of the San Bernardino County Republican Central Committee. In 2007, he was succeeded by Biane as chairman of the GOP in San Bernardino County. Biane was succeeded, eventually, by Willis as chairman of the San Bernardino County Republican Central Committee. Burum was a major contributor to the San Bernardino County Republican Central Committee. Both Burum and Biane have pleaded not guilty to the charges against them contained in the indictment.
At present, Richards Watson & Gershon remains Upland’s legal representative with regard to the Colonies Settlement lawsuit, as the city is reluctant to bring in another firm, given the investment the city made in having lawyers with that firm familiarize themselves with the issues involved in the litigation.
Richards Watson & Gershon, which rejected the county’s $2 million settlement offer on the Colonies Settlement litigation more than four years ago, again rejected the more recent informal county offer to settle the suit conditional upon an agreement to have Willis subjected to questioning. Instead, the law firm made a motion to prevent a deposition of Willis from proceeding.
With the October trial date approaching and the potential for an outcome that would include a substantial judgment against the city, there is an incentive for Jones & Mayer to intervene and bring the matter to a conclusion short of trial. Willis, who has chosen not to seek reelection and whose current term will end in December, no longer possesses the leverage he once did, and the imperative to protect him at all costs that was followed by Richards Watson & Gershon and the interim city attorney that followed that firm, Jimmy Gutierrez, may not remain operative for Jones & Mayer. Instead, the new firm – represented in Upland by Kim Barlow, will have to decide whether to seek to protect the city’s taxpayers or instead accede to the wishes of the city’s elected leadership and shield one of its outgoing but still serving leaders from a round of hard-edged, embarrassing and even painful questioning.
Barlow’s secretary at Jones & Mayer this week told the Sentinel she was not available for comment.