By clicking on the portal below, you can download a PDF of the November 27 edition of the San Bernardino County Sentinel.
By Mark Gutglueck
Moving on close to two years after Upland’s so-called fiscal task force offered levying some form of tax as a possible way to enhance that city’s revenue picture, the city council this week at staff’s request considered placing a one-half cent tax on the ballot in the November 2016 election. Ultimately, however, four of the council’s members rejected the concept.
Over the last two years, the city of Upland has made a modicum of progress toward righting its listing financial ship, based primarily upon an influx of one-time revenues and a recovering national, state and local economy. But as before, a future financial crisis looms, given that a decade ago, elected city officials granted staff increases in salaries and benefits, in particular generous pension allotments that are on a schedule to result in the city having just under a $9.2 million annual pension liability by fiscal year 2020-21. Already the city is putting out $7.1 million per year to cover the pension costs of its current retirees, reducing the amount of money available in the remainder of the city’s current $39.9 million general fund for the provision of municipal services and, equipment acquisition, and maintenance and renewal of its aging infrastructure.
After a staff presentation by finance director Scott Williams and deputy city manager Jeannette Vagnozzi in which the preferability of the sales tax option over utility, business and transient occupancy [hotel] taxes were elucidated and in which Vagnozzi discussed doing a survey of voters to see if they would support the proposal, the council weighed in with its perspective.
Councilman Gino Filippi offered comments which seemed to commit him neither way on the issue. The table was then set for the eventual rejection of the tax proposal by councilman Glen Bozar, who immediately questioned the wisdom of conducting another survey after the city conducted such a sampling of voter sentiment in April 2014. Bozar said he saw a “problem” with such informal polling, saying the last go-round had been a “push-poll,” meaning that the survey takers had not done a straightforward sampling of voter sentiment but had sought to “push” those surveyed into indicating they would support the tax. By the most optimistic interpretation of that data, some 57 percent of the city voters polled were favorably disposed to a taxing scheme. Bozar said he had inquired at the time to see what kind of questions were being asked of the voters sampled, but that the “former city manager would not give them to me. He said, ‘We can’t talk about that until after the survey is done.’ Where is the transparency here?”
Bozar then turned to the wisdom of imposing the tax within the city, given the potential impact it would have on local businesses, in particular driving prospective customers who might be contemplating purchasing big ticket items from merchants in Upland to spend their money elsewhere or shop over the internet, where they might avoid paying sales tax altogether. “It impacts consumer behavior,” Bozar said. “Internet commerce is hurting Macy’s, is hurting Nordstrom’s, is hurting all the big box retailers. They are struggling.” He said he believed layering further taxes into the equation in Upland would further discourage people from shopping in the city.
Moreover, Bozar said, it would be unprincipled to impose a higher tax burden on the city’s residents when the revenue would ultimately end up paying for the too-generous salaries of current employees and bank-breaking pensions of current and future retirees. Saying that the money being used for “salary increases is not going to fly,” Bozar asserted the city should not misrepresent to the voters that the tax would be used for delivering enhanced services when the money would inevitably be consumed by increasing pension costs. Noting that the California Public Employees Retirement System had recently acknowledged that its investment portfolio was not going to reach its target 7.5 percent return on investments and was therefore demanding that municipal and other governmental agencies make up the difference by contributing more money directly into the retirement fund to ensure governmental retirees would receive their full pension allotments, Bozar said “We owe it to the public” to tell them the truth that the tax “revenue is going to be gone in three or four years,” consumed by increased payments into the California Public Employees Retirement System. He said claiming that the city would use the tax revenue for enhancing municipal services would be “absolutely phony.” He said that previous representations from the former city manager that if he was provided with the revenue from an enhanced “sales tax“ he “would pave the city’s streets with gold” were a canard. “Where is this going to take us?” Bozar asked. “I would not spend another dime on a survey. If you do another survey, I want the citizens to know “how fast it [i.e., the tax revenue] is going to evaporate.” He said that if the city were to seek a vote on the tax, it should simply put the measure on the ballot and not preview it with a survey that would be more expensive than the election itself. Predicting that the city’s voters would reject any new tax, Bozar said the city should avoid spending a lot of money toward an effort that had little prospect of succeeding. Referencing the $25,000 it would cost to put the proposal on the ballot, Bozar said that if the council should elect to go ahead with seeking the supplemental sales tax authority, it should do so at the lowest possible cost. “See if you do any better than with the utility tax that was defeated,” he said, but warned against wasting any more money on the gamble than is necessary. “I am telling you the reality of his thing. If the council is going to cry poor, don’t throw $100,000 [the cost of a survey] into it.”
Conversely, councilwoman Carol Timm said she was in favor of the tax for “fiscal reasons. I do not see it as an enormous tax. If I spend fifty dollars to go out to dinner, it’s going to cost me 25 cents,” which she said she would not mind paying if it was for a cause that helped the city. “People who are going to buy a $30,000 car will pay another $150. That’s not going to stop them from buying a car,” she said. “It would be advantageous for Upland to have this added tax,” she reasoned, in that it would give Upland residents an incentive to shop in town rather than elsewhere because it would provide them with the opportunity “to go and spend money” in such a way that will “help the city. We have big chuckholes in our roads. We have to improve our roads. I don’t think businesses would go berserk over this amount. This is more of a nominal amount. This isn’t a detrimental thing. Not every tax in life is a horrible thing. I would not want it spent on salaries. I would not want it spent on CalPERS [the California Public Employees Retirement System].”
Timm agreed that the city should bypass doing a survey and simply put the issue on the ballot. “I don’t think we should spend $100,000 to see if people want to vote for it or not.”
The most dramatic moment of the discussion came during councilwoman Debbie Stone’s remarks, as the eventual outcome of the proposal appeared to pivot on the direction she took.
“This is a tough call,” she said. “Not having this tax is going to make already difficult decisions even more difficult.” But Stone said the council and city had to show “fiscal responsibility. We need to clean our own house first,” meaning that existing wasteful and inefficient spending at City Hall had to be redressed before going to the taxpayers for more revenue.
The coup de grace came when Mayor Ray Musser said, “I agree with Debbie. We haven’t done our homework. We need to get our own house in order. We need to clean it up and run it right.”
The vote against proceeding with having staff prepare a sales tax measure for the ballot in November 2016 passed 4 to 1 with Timm dissenting.
San Bernardino City Councilman Henry Nickel this week said the council should entertain revisiting the vote it made last week in favor of providing Burrtec Waste Systems with the city franchise for trash hauling in light of irregularities and incomplete information surrounding the matter.
The move toward dissolving the city’s municipal sanitation division started more than three years ago when the city filed for Chapter 9 bankruptcy protection. At that time, discussion of privatizing or outsourcing several city divisions, including the police, fire and sanitation departments, began. The city’s trash workers, however, proved highly resistant to the proposal relating to their function, and the concept languished until earlier this year. In the meantime, city management and the council pushed forward with a plan to outsource the fire department, concluding a deal this summer in which the provision of fire protection service is to be taken over by the San Bernardino County Fire Department. As part of that arrangement, the entirety of the city of San Bernardino is being transformed into a county fire district, which is now assessing against every parcel of property within the city a $139 district fee, generating an additional $7.8 million of revenue that the county is passing back to the city as a pass-thru to the municipal general fund.
In structuring the bidding competition between the refuse haulers willing to take on San Bernardino’s trash handling franchise, the city layered in minimal requirements, which included eliminating entirely the city’s expenses in operating the division and providing the city with a minimum of $5 million in revenue. The city entertained four serious proposals, one from Waste Management, Inc., another from Republic Industries, and from Athens Services and Burrtec. Penultimately, the competition came down to competing proposals between Athens and Burrtec. Staff, working in conjunction with a consultant, Management Partners, evaluated those proposals. According to internal city documentation, Athens, over the first ten years of the franchise guaranteed the city $29,278,968, while Burrtec committed to paying the city $24,876,468 over that same ten year period. Both companies provided two decade proposals as well, with Athens saying it would return to the city $54,348,968 over 20 years. Burrtec offered $35,126,468 guaranteed to the city over the same two decades. City staff took into consideration only the ten year bid from both companies. It also factored into the equation $10 million in non-guaranteed revenue from Burrtec that was to consist of the possible construction of a new biofueling station. This, on paper, inflated the value of Burrtec’s offer to $34 million, which was higher than the $29 million Athens guaranteed. In addition, the staff/consultant report, which did not reach the council until just four days before the council vote took place, omitted mention of Athens’ $6.5 million offer to purchase the city yard where sanitation division-related activities take place while promoting Burrtec’s identical $6.5 million city yard purchase offer as a selling point to encourage the council to embrace the deal with Burrtec. The city’s consultant on the matter, Management Partners, led by principal Andrew Belknap, tendered a recommendation, which, prior to the meeting was seconded by city manager Allen Parker, that Burrtec be given the nod. Athens representatives, forewarned of that recommendation, came armed to the November 16 meeting with documentation and penetrating references to how the request for proposal process had been undermined by conclusions drawn from incomplete or faulty data. This prompted both Belknap and Parker to shift their position from what was in the staff/consultant report and recommendation, and they indicated the emerging information merited further study. The council, however, primed as it was in favor of Burrtec by the recommendation, was subject to further pressure to vote in favor of Burrtec when droves of city sanitation workers came forward at the meeting, telling the council they were in favor of having the franchise go to Burrtec. Those employees indicated their recommendation in this regard was based upon their interaction with Burrtec, the owner and corporate officers of which had troubled themselves to meet with them to offer them job security by hiring them to continue to work in San Bernardino as trash men employed by the company. Several remarked that Athens had made no contact or offered no such assurances.
With councilman Fred Shorett dissenting, the council voted 6-1 to confer the franchise upon Burrtec.
In the aftermath of the vote, it became apparent that the request for proposal process had been dogged by irregularities, in that the information provided to the council was incomplete and the comparisons contained therein were not straight across or expressed in the same terms. Moreover, the protocol of the process had been violated. The request for proposals that went out to the various companies that competed for the franchise specifically forbade contact by the applicant with city employees. Page 3 of the official request for offers states, “During the request for proposals process, proposers and their agents are strictly prohibited from any contact with city staff, city consultants and/or elected officials.” Based upon the sanitation workers’ statements, Burrtec clearly violated that provision.
Councilman Henry Nickel, one of the six who voted in favor of Burrtec, this week told the Sentinel that it may be propitious for the city council to revisit the issue and perhaps even rescind the November 16 vote and reconsider it from scratch based upon a thorough analysis of a more complete numbers comparison between Burrtec and Athens.
“Our objective was to meet the obligations we have with regard to the city’s bankruptcy recovery program,” Nickel said. “We wanted five million [dollars] in revenue and 2.5 in franchise fees, which two of the four companies met. The decision then came down to ancillary cost benefits. The two had very much equivalent proposal. Some things Burrtec does better than Athens could do. Some other things Athens does better. It became a trade off from a cost and revenues standpoint.”
The key element of the analysis, Nickel said, was “Attachment Three to the report that went into an in-depth discussion of the recommendation. It turned out that staff was going back and forth at the last hour. There were some claims Athens made after it was known the recommendation was going to Burrtec that questioned if in fact what they [Burrtec] were guaranteeing was guaranteed. That happens every time you have a competitive bid process. One side comes in and says ‘Our offer includes this that could have some benefit to the city the other side did not.” In terms of ancillary benefits to the city, the number of employees who were in favor of Burrtec was persuasive at the time the council made the vote. Certainly, if we were looking just at dollars and cents, there might have been agreement that Athens had the better proposal. But in terms of local facility capacity and good will, Burrtec went the extra mile and sealed the deal. It was not just dollars and cents. They cemented it with good will. Both met our basic requirements. Then came facility capacity and good will. What they [Burtec] were offering in terms of buying out some of the city’s equipment, and capacity, since they have a local track record and dealing with other cities in this area, their customer service, that pushed them over the top. You have to look at what they are offering and what Athens was offering. At the end of the day you have to make a decision to move forward, understanding Burrtec and Athens had met the minimal requirements.”
At this point, however, Nickel said, “In light of what we know now, we should consider that.”
Nickel acknowledged that the entire process was marred by “failure on the parts of both the city manager and city attorney to get out information. At the eleventh hour he [City Manager Allen Parker] backed off of his recommendation or appeared to back off of his recommendation. The guy had six months to make his determination. It is completely unacceptable that someone in his position paid what he is paid who has his responsibility over six months could not come up with a recommendation he was comfortable in supporting.”
Nickel pointed out that the delivery of the recommendation four days before the vote was taken gave the council little time to evaluate it and that the half-hearted withdrawal of Parker’s endorsement of Burrtec complicated the matter even further. He contrasted the four day window with the longer length of time to evaluate the fire department outsourcing proposal. He said that the decision to release Parker from his position as city manager, which also was made on November 16, was an outgrowth of the difficulty the council had in negotiating the thicket of issues which he said Parker was inadequately managing.
“We had ten days to look at the fire department changeover,” Nickel said. “No wonder he [Parker] is on his way out. There was failure after failure on this. What happened last week was the final nail in his coffin. He was either incompetent or incapable or creating turmoil. We could no longer tolerate that as a city. Unfortunately, our council still struggles to get information within a reasonable amount of time so we can be comfortable with our decisions. We have to make a decision. He failed to do the job, in my view. He failed to meet our request that he prepare a recommendation and get it to us in time so we can look at the recommendation and support Burrtec. We went on his preliminary recommendation.”
At first blush, the statements by the city’s sanitation workers in support of Burrtec were taken as an indication, Nickel said, that Burrtec “had developed good will that would lead to a more appropriate transition. Previously outsourcing was opposed by the employees. We wanted to make sure if we had a [franchise] contract, we could make that transition smoothly.”
He was not aware, Nickel indicated, that Burrtec and the other applicants were prohibited from lobbying city employees. “If that is the case, then that needs to be discussed,” Nickel said. “If they engaged employees in a manner that is inappropriate I am pretty sure Athens will make that point.”
When that violation of protocol was in evidence during the meeting, Nickel said, “It was not brought up by the city manager or the city attorney that the letter of the proposal was not met. If something inappropriate occurred, it was up to the city manager and city attorney to investigate and address that. We were given a recommendation. We have trust in city staff. If we are micromanaging and inserting ourselves in every decision and not relying on the decisions by our staff, we will get into a situation, frankly, that put the city into the position we are now trying very hard to recover from. Micromanagement from the council will lead to dysfunction.”
With the violations of the protocol now a public issue, the city needs to resolve the circumstance, he said. “If there were improprieties, we don’t want that cloud hanging over the city and if someone dropped the ball, then I would not be against seeing what can be done to fix it,” Nickel said.
Indeed, also on November 16, precedent for doing just that – reversing a vote – was set. On the issue of whether the city should extend its contract with the firm of Urban Futures in carrying out work related to the winding down of the city’s former redevelopment agency and the accounting of its assets for the bankruptcy court, the item failed on a 3-4 vote. Immediately thereafter, however, Councilwoman Virginia Marquez reversed her vote, and the motion to authorize a $53,000 purchase order to extend the consulting work by Urban Futures carried.
More than three years after the city of Hesperia paid out $200,000 to foreclose a federal lawsuit over what a federal magistrate indicated was the unconstitutional application of its municipal authority through the use of its code enforcement division, the city appears poised on the brink of going to trial in yet another federal and potentially even more expensive lawsuit.
Worth noting is that in the current case, the city spurned an offer from the plaintiff’s attorney to settle the matter in return for the city calling a halt to the ongoing administrative adjudication process against his client.
It is the constitutionality of that administrative adjudication process, or lack thereof, that is at the root of the lawsuit filed in the United States District Court in Los Angeles by Upland-based attorney Marc Grossman on behalf of Alexander Cooper Jr. against the City of Hesperia as well as three of its residents – JoAnn Chavis, Lewis Chavis and Christopher Chavis.
It is Grossman’s contention in the suit that the Chavis family has further familial connections to individuals within the City of Hesperia and its code and law enforcement divisions and that they used those connections to vector unjustifiable enforcement action against Cooper because of personal differences that developed between them. According to Grossman, city officials either negligently or maliciously permitted the city’s code enforcement division to be applied against his client, and that the lack of Constitutional protections and accompanying violations of due process inherent in the city’s citation and administrative process resulted in Cooper being railroaded, that is, found guilty without a trial, and assessed fines that are both unjust and excessive.
In September 2012, according to the suit, Cooper moved into a home in the 10700 block of Choiceana Avenue in Hesperia and shortly thereafter an air conditioning unit on the property was stolen. Cooper reported the theft to the sheriff’s department, which serves as the police department in Hesperia. In January 2014, according to the suit, Cooper learned from a neighbor that Christopher Chavis had stolen the air conditioner. Cooper then approached Christopher Chavis, JoAnn Chavis and Lewis Chavis about the air conditioner, according to the suit, only to be met with a tirade of profanity from the trio.
“Joann Chavis then began a pattern of using her connections within the Hesperia Code Enforcement Department to harass Cooper,” according to the suit. “Joan Chavis has since, on several occasions, directed Hesperia code enforcement officers to harass Cooper at his home solely for the purpose of seriously alarming or annoying him, and for no legitimate purpose. Hesperia has conspired and acted in concert with Joann Chavis by continuing to harass Copper at his home relying solely on Joann Chavis’s frivolous complaints against Cooper, such as complains of dust in the air after Cooper moves his car on his property or allegations that Cooper had packages sent to Joann Chavis’s home to in some way commit identity theft. Hesperia has followed such illegitimate code enforcement responses with bills for up to $2,500 per response alleging that Cooper must compensate Hesperia for following up on Joann Chavis’s frivolous complaints. Hesperia has sent demands for a total of $3,912 for such illegitimate code enforcement responses,” the suit states.
Furthermore, according to the lawsuit, on February 4, 2014 Cooper and two of his girlfriend’s children were at his Choiceana Avenue home when he was confronted by eight city employees, including members of the Hesperia code enforcement division in response to what the suit says was “yet another frivolous complaint from Joann Chavis. Cooper was arrested and imprisoned on a citizen’s arrest by Lewis Chavis on charges of actions that did not factually occur. At no time on February 4, 2014 was Cooper creating or causing there to exist loud or unreasonable noise. At no time on February 4, 2014 did Cooper commit a misdemeanor in the presence of any defendant.”
Though he was given a notice to appear in court on April 9, 2014 to answer a criminal complaint relating to allowing excessive noise to emanate from his property the city said was pending against him, according to the suit, “On or about April 9, 2014 Cooper called the court to see if the district attorney had filed charges and was told charges had not yet been filed. Cooper continued to check with the court frequently over the next year to determine if charges had or had not yet been filed. Cooper is informed and believes that the district attorney never filed charges for any matters from February 4, 2014. Unfounded and frivolous disruption at Cooper’s home by Hesperia’s code enforcement in conspiracy with Joann Chavis continued on, but is not limited to, February 7, 2014, July 25, 2014, July 27, 2014, March 31, 2015, May 6, 2015 and May 8, 2015. On June 2, 2014, Joann Chavis’s harassment continued with the malicious filing of an unfounded request for a civil harassment restraining order against Cooper with the California Superior Court. The court denied the petition for lack of evidence following a motion for dismissal.”
According to Grossman, the city has, in violation of Cooper’s Constitutional rights to due process, proceeded with deeming him guilty of the code enforcement violations the city’s officers have cited him with and assessed him for the cost of the code enforcement division’s action against him, by using its administrative citation process, which does not afford the accused a trial. Through that administrative citation process, Cooper has been assessed with the $3,912 in fines. Moreover, according to Grossman, the city continued to hold over Cooper’s head the possibility that it would proceed with a criminal prosecution of the misdemeanors – producing excessive noise and disturbing the peace – referenced in those citations.
The lawsuit against Hesperia Grossman has filed on Cooper’s behalf is reminiscent of a similar suit filed by another Upland-based attorney, Louis Fazzi, on behalf of two other Hesperia residents, Janet and Esther Duran, in which the municipality used its authority, bankroll and control of the code enforcement process to overwhelm its citizens and obtain an inevitable adjudication in the city’s favor.
In January 2010, the Hesperia code enforcement division took up a case that had as its focus a property on Redwood Avenue owned by Esther Duran. which her daughter, Janet, was using as a temporary rescue shelter for horses that would otherwise have been sent to slaughterhouses for euthanization or processing for the dog food or glue manufacturing industries.
Janet Duran, an ambulance driver, in 2004 took up the cause of doomed horses, including wild mustangs run to ground by cowboys in Nevada and Arizona and ones being sold by their owners at auction, ostensibly to buyers interested in using them for horsemeat for as little as $5, $10, or $15 a head.
The Redwood property prior to city incorporation was zoned for agricultural use. The post-incorporation zoning was agricultural residential and the Durans were permitted under the city’s code to have up to six horses on the property per its acreage.
On January 13, 2010, a team of city employees that included two code enforcement officers, four armed sheriff’s department deputies in flak jackets and two animal control officers descended on the Durans’ property. One of the code enforcement officers served Esther Duran with papers and the team then seized three horses and five dogs, one of which was a stray whose owner the Durans were seeking to locate. Both Esther and Janet were cited and slapped with a total of $129,000 in fees, which upon the city’s processing protocol were ratcheted up into liens against the property. Those liens resulted in Esther Duran’s mortgage increasing from $1,400 to $4,700 per month.
Unwilling to take the city’s action lying down, the Durans hired Fazzi. Fazzi brought several principles to bear which the city had in the past routinely overlooked in its enforcement efforts, including compliance with the city’s own codes, which actually allowed for the presence of up to three more horses than the Durans had on the property on January 13, 2010 and up to five dogs, as well as the right to due process. The city’s response was to seek a series of delays, which had the effect of increasing the Durans’ legal costs while the underlying issue – the return of their animals – remained unresolved.
Despite the cost, the Durans did not simply duck out of the fight. Fazzi persisted on their behalf, successfully removing the matter to federal court. Still, the city told the court the Durans were maintaining a substandard property and that the animals for that reason should not be returned to them. Fazzi maintained that the property was up to code and in compliance in all regards. In March 2012, a court-appointed independent inspector went over the Redwood property with a fine-tooth comb, concluding the property was indeed up to code.
In April 2012, U.S. District Court Judge John E. McDermott ruled that the city’s action against the Durans was improper and that their animals would have to be returned to them. Fazzi immediately brought a motion to have McDermott consider whether the entire process the Durans had been subjected to was unconstitutional.
While McDermott’s ruling was pending, the city offered the Durans a $200,000 settlement. The tendering of that offer, and the Durans’ acceptance of it, put the matter to rest, preventing a potentially precedent-setting ruling that would prohibit the city from continuing to employ the same tactics against other city residents.
Thus, the baton for establishing that Hesperia’s administrative citation process is an inherently unconstitutional one has been passed to Grossman, who is now consigned to using the city’s action against Cooper as the means for achieving a precedent-setting decision.
Grossman, in an effort to avoid the drama the circumstance entails, sought a resolution of the matter before taking the case to trial in federal court, which will require scores of hours of preparation and trial by him and his firm and would also cost the city approaching a hundred thousand dollars in legal expenses alone. Two weeks ago Grossman offered to drop Cooper’s case in exchange for the city dismissing the pending criminal and/or infraction prosecutions and vacating the $3,912 in fines being assessed against Cooper as a result of the administrative citation adjudications. The attorney handling the matter for the city, Allen Christiansen, refused. Two days later, the criminal charges against Cooper were dropped. The city, however, is still seeking to assess the $3,912 in fines.
Grossman is now purposed to making the federal case he initiated which promises to complete the circle Fazzi began drawing with the Duran matter but was never driven to its ultimate conclusion: A declaration from a federal magistrate that the City of Hesperia’s practices overstep Constitutional authority and must be significantly curtailed. Grossman is now in the process of fortifying himself with material – testimony and evidence – to press forward with Cooper’s case in federal court.
“Joann Chavis has been trained and authorized by Hesperia to act as a volunteer in its Citizens Patrol program,” Grossman stated “In this capacity, Joann Chavis works closely, communicates regularly and has developed contacts with members of the Hesperia code enforcement division and other agents and agencies of Hesperia.”
According to Grossman “Acting under color of law, defendants worked a denial of Cooper’s rights, privileges, or immunities secured by the United States Constitution or by federal law by conspiring to: (a) deprive Cooper of his liberty without due process of law, causing him to be taken into custody and held there against his will, (b) make an unreasonable search and seizure of his person or property without due process of law, (c) impede and hinder the due course of justice, with intent to deny Cooper equal protection of laws, (d) refuse, or neglect, to prevent such deprivations and denials to plaintiff, thereby depriving plaintiff of his rights, privileges, and immunities as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.
Christiansen told the Sentinel, “Unfortunately, we do not comment on pending litigation, so there is nothing I can add for you.”
The San Bernardino County Public Defender has hired three lawyers with previous criminal defense experience to pursue specialized cases aimed at exonerating or freeing inmates already convicted of felonies which fall under the purview of Proposition 47.
Proposition 47 is a referendum passed by voters in the state of California on November 4, 2014. The measure was also referred to by its supporters as the Safe Neighborhoods and Schools Act. It redefined some nonviolent offenses as misdemeanors, rather than felonies, as they had previously been categorized. The measure’s effects were to convert crimes such as drug use and possession as well as property offenses, from felonies to misdemeanors. These offenses include shoplifting, writing bad checks, and drug possession.
Efforts are now underway to apply those definitions retroactively to those who are incarcerated or who are free but have limitations place upon them by virtue of their felony convictions.
According to San Bernardino County Public Defender Phyllis K. Morris, “Prop 47, the Reduced Penalties for Some Crimes Initiative, was approved by California voters on November 4, 2014. The measure provides for the reduction of certain felony convictions (most related to drug possession) to misdemeanors. Felony convictions limit a person’s full involvement in the community by affecting employment opportunities and the exercise of citizenship activities, such as voting and jury service. As Prop 47 applies to many non-serious felonies there are thousands of residents in need of legal assistance. Existing staff is unable to absorb the workload increase associated with Prop 47 and requires additional support from experienced legal professionals. The deputy public defender position responsibilities in support of the Prop 47 implementation include: preparing and defending cases; conducting legal research and preparing legal documents, briefs and opinions; reviewing client files, recognizing relevant issues and establishing effective working relationships with various members of the criminal justice community. Three contract deputy public defender positions to support implementation of Prop 47 are included in the department’s 2015-16 budget.”
Morris said the two most recently “recommended contracts will be effective November 28, 2015 through June 30, 2018, and may be terminated by either party without cause upon 14 days written notice.”
The public defender’s office advertised the three vacant positions, received applications and interviewed several candidates to assess their criminal law experience, commitment to the department’s mission, and whether each possessed the necessary skills required for the deputy public defender positions. The board approved an employment contract for one of positions on September 15, 2015, hiring Eric McBurney as a deputy public defender III, and agreeing to pay him $245,073 in yearly salary with $110,217 in benefits for a total annual compensation package of $355,290. He went to work on September 16. His contract with the county is to run through June 30, 2018.
McBurney attended the University of Maryland and then went to the University of Iowa School of Law. He has been a member of the California Bar since 2012.
This week, the board approved contracts with Kelton A. Tobler as a public defender IV and Joni L. Sinclair as a public defender III.
Tobler, a graduate of Brigham Young University and the Brigham Young University School of Law, passed the bar in 1991. He will receive a salary of $278,231 and benefits of $52,250. His contract runs through June 30, 2018.
Sinclair will be paid $252,961 in salary and $51,200 in benefits. Her contract likewise sunsets on June 30, 2018. She attended Howard University and Howard University School of Law.
She passed the bar in 1991.
Morris this week spoke with the Sentinel. She said the three attorneys will essentially work full time for the county and be paid on an hourly basis for the duration of the contracts or until the monetary amounts specified in the contracts is or are exhausted. She said her office faces a backlog of scores of thousands of cases that fall under the Proposition 47 rubric.
During their work for the public defender’s office, Morris said, the three newly contracted attorneys will be prohibited from doing any outside criminal defense work because of potential conflicts. Morris acknowledged that the total compensation packages offered under the contracts for the roughly two-and-a-half year lives of McBurney, Tobler and Sinclair’s contracts are probably lower than what they might be able to earn in private practice. She said all three are currently applicants for staff positions as deputy public defenders and that their performance in their various capacities as contract public defenders will provide her with an excellent opportunity to evaluate the quality of their work and suitability for the staff positions.
Six months after a divided San Bernardino City Council entrusted $600,000 to Mercy House and its executive director, Larry Haynes, to create and run a homeless access center as the centerpiece of the county seat’s effort to get a handle on its homeless problem, it heard a belated quarterly report on the performance and effectiveness of the facility at the council’s first meeting this month on November 2.
While the council did not take action to discontinue funding the program, it was clear that three of the council members who did not support the undertaking in May remain skeptical and one of those who did support it is now entertaining doubts about whether putting nearly all of the city’s homelessness-fighting eggs in Mercy House’s basket is the wisest approach.
San Bernardino, the county’s oldest and most populous city with 209,924 residents according to the 2010 Census and which had grown to 213,708 by 2013, had the largest number of documented homeless individuals of any of the county’s 24 cities, with its 767 easily outdistancing Victorville, which had the second most at 261 homeless, Upland with 166 homeless, Yucca Valley at 161 homeless, Ontario with 146 homeless and Fontana with 135 homeless.
In 2014, the city council directed the city manager to seek bids for a contract provider to offer a “centralized service access center to provide wrap-around services to reduce the number of unsheltered resident homeless population.” It then devoted the proceeds from a United States Housing and Urban Development Department Emergency Solutions Grants Program to be used as a $200,000 effort toward the creation and management of that service access center as part of the city’s so-called Homelessness Intervention Action Plan. In the same time frame the council directed the police chief, office of the mayor and the mayor pro tem to establish and recommend proper residency criteria for eligibility for the program. This resulted in a program policy giving priority to those members of the city’s unsheltered homeless population who could show they once were residents of the city.
Also in 2014, the council declared property owned by the city of San Bernardino located at 241 West 9th Street to be surplus and requested solicitation bids. When no bids were received, the council amended the 2014-2015 Emergency Solutions Grant budget, consisting of money provided to the city by the federal government, allocating $200,000 for a proposed access center and authorized the city manager to enter into negotiations with Mercy Housing Living Centers for operation of the homeless access center, designating 241 West 9th Street, also known as the Easter Seals Building, as the location for that facility.
Mercy House, which is based in Santa Ana and employs Larry Haynes as its executive director, took on the role of the San Bernardino Homeless Access Center operator on February 27, 2015. In the following two months the center enrolled 115 clients and housed 11 families. In the meantime, Haynes submitted a proposal to have Mercy House continue operating the San Bernardino Homeless Access Center through Fiscal Year 2016-2017, and the city responded with a plan to provide for funding such an extension through fiscal year 2015-16. With Councilman John Valdivia abstaining and councilmen Henry Nickel and Fred Shorett opposed, the remainder of the city council – Rikke Van Johnson, Jim Mulvihill, Virginia Marquez, and Benito Barrios – voted to provide Mercy House with the $600,000 to continue operating the access center through June 30, 2016.
On November 2, assistant city housing director Brandon Mims started the quarterly report, which was three months late, off on a positive note.
“We have some good news about homelessness in San Bernardino,” said Mims. “Since 2012 we have aligned our investment of general fund, Emergency Solutions Grant and Community Development Block Grant dollars into data-driven, results oriented partnerships and programs that prioritize housing first. The housing-first concept is really intended to eliminate all those barriers that would keep a homeless person from entering service. A lot of our service providers that we were funding prior to 2012 had a lot of restrictions on their programs and that rally hampered peoples’ ability to join those programs and transition out of homelessness.”
Displaying a chart on the council chambers’ overhead projector, Mims said it “shows an accelerated upward movement in funding, nearing close to $300,000 for rapid rehousing, homelessness prevention increasing to almost $180,000 and funding for emergency sheltering and street outreach staying flat or declining to under $100,000. What we’re noticing and we’re noticing countywide and regionwide is the more rapid rehousing dollars you can put out there, the more you can help people transition out of homelessness. In 2014 the city had 167 homeless veterans and in 2015 the city counted 139 homeless veterans. Our overall homeless count dropped from 918 in 2013 to 767 in 2015.”
Saying that “when we look at these numbers we want to know if it is a real reduction,” Mims pointed to the January 28 point in time count as an indicator of where the city was just prior to the creation of the access center that would allow the city to measure whether it is indeed making an inroad on the homeless problem. The point in time count is a comprehensive survey of homeless people throughout San Bernardino County undertaken on a single day.
Mims was enthusiastic in endorsing Haynes and Mercy House.
“Mercy house collaboration started earlier this year,” Mims said, referencing Haynes’ as its leader. “One of the things we have been able to focus on with Mercy House is really targeting the many different factors that a person who is homeless is dealing with. Mercy House has been a great partner in helping us look at those things because myself and my staff are not homeless specialists. Everyday people are coming into the access center with a number of issues. There is not just one thing that is keeping them homeless. In the first quarter we served 402 unique individuals, housed or prevented homelessness for 17 households, which was 39 unique individuals. Year-to-date we served 1,061 unique individuals and housed or prevented homelessness for 33 households, which is 92 individuals.”
Councilman Fred Shorett, while saying, “I appreciate this report and I appreciate Larry being here to give us a report, since I have asked for this,” went on to state, “When we talked about quarterly reports, this isn’t exactly what I was looking for. I can read the numbers here and they’re fine. But I look at them and I don’t know exactly what they mean: 33 households 92 individuals 1,061 people served, unique individuals.”
Shorett continued, “When I asked the city manager’s office to give us a presentation or a report, I was really interested in the dollars and how they equate, because as you recall, I will just refresh everyone’s memory, there was over $600,000 or right around $600,000 that was all given to one agency. That was Mercy House. And some of the other agencies that had been good partners over the years were kind of left wanting. They didn’t get some of their funding that they were kind of counting on. That was, of course, a big concern of mine at the time – that we were taking a new organization – and I’ve said it every time and I’ll say it this time too, not too disparage Mercy House or the job they do or what they can do – but I believed then, and I still tend to agree and believe, though I think Mercy House is providing a service, we are not partnering with these other agencies as well as we should have and we still could. So, that’s a big concern of mine. This report is fine. I don’t need to belabor the point any more. This is not the report I want to look at. I want a report on the nexus of funding and other organizations and who is doing what, getting a good thorough understanding of how we are partnering with all of our partners. Not only how Mercy House is partnering with other partners but how the City of San Bernardino is partnering with the three standouts – Time For Change, Kim Carter and her organization, the Salvation Army, and CCLM – and there are many others. Those are the big three in this community that I’ve had contact with. They are willing and working with you folks and all that, but I don’t think that they feel like they are really a part of the funding and all the money that we’ve given to one outside organization that has come and is doing the same things that a lot of these organizations are capable of doing as well. I know the county has decided to end homelessness for veterans. I’m thrilled veteran homelessness is down fifty percent. That’s great. I’m not sure our community right now and the money we’ve spent on it can take credit for that. I think it’s been largely the county. The county found 401 that they can count – homeless veterans – and they pretty much are the ones that are ending the veterans’ homelessness in this county and of course because we’re the biggest homeless population within the county, they’re helping us, which is great and which is, has been what I have been suggesting and hoping for all along, is that we do a better job of partnering with the county.”
In response to Shorett, Haynes was given the floor at the speaker’s podium.
Haynes, who makes $131,000 per year as the general manager of Mercy House’s operations throughout Southern California, was initially tenuous and defensive in his responses to the council’s questions, but grew progressively bolder in his impromptu exposition, asserting that the Mercy House’s focus on permanently moving people off the streets was preferable to providing short term fixes. He began by attempting to knock down Shorett’s suggestion that Mercy House’s monopolization of the available funding for combating homelessness was resented by other service providers.
“With regards to whether we are qualified to be here or not, I will say at least in talking with the other service partners, the churches and so forth, those aren’t the conversations we’re having,” Haynes said. “They’re happy we’re here. We’re working together. There is not an accusation we don’t belong here. They’re happy for the help. We’re talking. We’re going after funding together. We’re doing everything you would expect out of a good partner. So while I understand your expression of your concern, which you’ve said several times, I will just say with the partners I’m working with, many of whom are listed on the board there, many of whom have been in these council chambers, many of whom you’ve highlighted as some of the top providers, we’re working well together and were all happy we’re here working together. An example of that would have been the resource fair that we hosted with Loma Linda University and in which a number of the agencies participated. In regards to the specific funding, we’re transparent and we’re happy to do it. Are you looking for an accounting tonight of the money we’ve spent so far? Because I’m happy to do that.”
Shorett pressed Haynes with regard to “the time line,” saying he wanted to be able to measure the breadth and depth of the problem from “when we started” and compare it to the progress made and “where you are going [and] how it relates to the $600,000 in approximately a two-year period.”
Haynes responded, “We can show you how every dollar will be spent, the benchmarks we think will happen, what our vision is for the future and how it relates to the city.”
Councilman Henry Nickel picked up where Shorett had left off, pressing Haynes to justify not just Mercy House’s approach but the efficacy of what it was doing and whether the provision of funding to it would compromise other programs.
“One of the questions I am constantly posed with is, ‘Dollars and cents wise, how are we performing and are we over time seeing an improvement in terms of the cost effectiveness of this program?’ Are we becoming more efficient? Where can we identify greater efficiencies we can integrate into this through partnerships blending all the different services together? It just seems to me we have so many different services doing different things in this community. My understanding is the intention of this access center was bringing these services together ideally under one roof. Are most of your clientele just coming in voluntarily? Are they walking in the door or exactly how are they connecting to your service?”
“I believe it is a combination of walk-ins and police referrals, if I am not mistaken,” said Haynes, asserting Mercy House is “a resource for the police department as well.”
Nickel then said, “Anecdotally, I’m hearing from a lot of people we still have a lot of homeless people. We opened this access center and why do we continue to have homeless encampments around the city? What are we doing to proactively ensure that we are reducing this element within our city?”
This prompted Haynes to dwell upon the relative merit of concentrating on creating permanent housing for a relatively smaller number of the homeless in the city in lieu of funding temporary housing across the spectrum of the city’s homeless.
“I welcome the conversation about how the money is spent and what the best practices are,” said Haynes. “It is a controversial thing in my world; for years and years and years all across the country we developed a shelter system and if you talk to anybody on the streets, they say, ‘Gosh, if we want to help the homeless, what we want to do is build a shelter. Well, there are those of us who believe in data. There are those of us who want to go wherever the data drives us, whatever is the most cost effective way to do these things, not what our ideology is, not the tradition, not the way we’ve always done it. And so it has been a bit of a culture shock over the last few years to a lot of my contemporaries. There is a reason HUD [the federal department of Housing and Urban Development] has stopped funding transitional housing. It’s one of the worst things we can do with our money cost effective-wise. I’m not saying that it doesn’t work. I’m just saying it is a lot more expensive than some of the other options out there. That’s why there has been an emphasis on rapid rehousing, in particular permanent supportive housing. Secondarily there’s some debate over prevention. What is the cost of getting somebody off the street into permanent housing? What you do is you come up with the formula, the strategies which will lead you to exactly what we have been doing together as partners: an emphasis on housing placement, an emphasis on rapid rehousing, a move away from some more traditional shelter models. It is a very enlightened progressive thing you’ve done and that’s why, if you break down the money that’s been spent so far and the number of housing placements we have, this is going to stand up compared to just about anybody in the country, guys. I’m happy to have that conversation with you. This is a big deal. This is a good thing, for us to have in six months time placed 100 people into permanent housing is a really big deal when you consider the money that has been spent against it. So I think we should welcome this conversation about what are you exactly getting for your money.”
Haynes then took a stab at explaining the anecdotal phenomena Nickel referenced, acknowledging that successful programs to assist the homeless can attract more homeless into the area.
“The other thing we have to answer and we want to be your partners on this – we have to worry about a magnet effect,” Haynes said. “Now, I know most of my colleagues out there in the nonprofit world right now are cussing at me though they are not in the room. They will say, ‘Don’t say that. What we do doesn’t bring a magnet effect.’ Yeah, it does, kinda. We have to have an answer for that. We’ve got to have a San Bernardino focus. We’ve got to figure out what we are doing. We have to have that balance between how do we serve San Bernardino’s homelessness and still be a cooperative partner with the county. What is that delicate balance? I think we have something to add to that conversation that serves the city well. Any responsible provider who has taken your money who was trying to end your city’s homelessness has to be a partner with you in that magnet effect question. This may surprise you, but I’m actually on board with that.”
Haynes sought to turn the dialogue in such a way to suggest that the city’s funding of the program Mercy House is championing redounded to not just the city’s benefit but reflected positively on the council members themselves. In doing so, he referenced the success Mercy House has had throughout Southern California.
“Housing works,” Haynes intoned. “Permanent housing works for everyone with the right wraparound services. It has to be done well. It has to be financed properly. It has to be in the right place. There’s a lot of questions that go with that but at the end of the day at Mercy House and most of the COCs we’ve had tremendous success in getting even the most resistant people placed into permanent housing and ending their homelessness. We do that for 900 people a year, every year 900 different people. We’ll do it again this year. At the end of the day, with the right service provider and the right services, housing works for everyone. Not everyone that is placed in housing makes it 100 percent of the time. People are exited from shelter all the time all over the country, so what I am suggesting is, if you look at the studies and the outcomes, the best chance to end someone’s homelessness is in a permanent setting even if you have to do it on more than one occasion. But there has to be the services and support. That’s why we’ve got 100 people placed in permanent housing, because the emphasis has been on permanent housing and not shelters. No disrespect – shelter is important. It plays a role but what we’ve engaged, through councils’ leadership, with the guidance of staff, is a housing placement strategy that has literally ended the homelessness of roughly 100 people from San Bernardino. Six months ago 100 people who were living on the streets of San Bernardino are now in permanent housing because of the strategy you have invested in us, because it had an emphasis on housing as opposed to other halfway measures. Well done.”
Haynes responded to what precisely had been done for the 1,061 people the access center had been credited with helping.
“It ranges everywhere from us developing a case management plan all the way to permanent housing,” he said. “So it could be somebody we are simply connecting to another provider all the way to – and we’re now over 100 individuals – or somebody we have literally placed into permanent housing. What we’re trying to establish there with that are the numbers we are serving when we say unique, these are non-duplicated individuals, non-duplicated within our system.”
Irrespective of the magnet effect he referenced, Haynes said surveys that show homelessness is drawing down in the city are accurate.
“Believe the numbers,” Haynes said. “If the numbers seem like they’re going down, they probably are. Trust data, not anecdote. Trust data, trust research, not simply what somebody says to you or what you think or feel, because those things can be very misleading. Trust the research. Things may be improving more than we think.”
As the item was a report, no action was taken on it. Nevertheless, aside from Shorett’s and Nickel’s continuing skepticism, it was clear that one of the key supporters of providing the $600,000 to Mercy House in May, councilman Rikke Van Johnson, was troubled by the anecdotal reports relating to the persistence of homelessness in the city. Moreover, Johnson questioned the variance between the figures relating to city homelessness abstracted from the city’s point in time survey last January and higher numbers obtained in surveys completed by the police department, which is also monitoring the homeless circumstance.
“He says to trust the data,” Johnson said. “One of the challenging aspects of the data [is] we have a homeless division in our police depart that says there’s 2,000 homeless people in our community two years ago. That data does not match up with the point in time count. Why is there such a disparity?”
The City of Adelanto this week became the first of San Bernardino County’s 24 cities to legalize the massive scale cultivation of medical marijuana for commercial purposes.
In a 4 to 1 vote with councilman Ed Camargo dissenting, the council on Monday, November 23 approved a measure that will license such operations to be located within the city’s expansive industrial park and draw at least fifty percent of those who work there from Adelanto itself.
Aside from Camargo’s objecting vote, the matter has created some back and forth and contretemps. Councilman Charlie Glasper, who supported the ordinance, earlier this year was resistant to the concept of the city embracing enterprises relating to marijuana. Five months ago he adjusted his opposition, consenting to allowing cultivation operations in the city, but remaining opposed to clinics and dispensaries, where the product would actually be marketed. The ordinance was first considered and voted upon November 18, at which time councilman Jermaine Wright was opposed to its form, which limited the number of indoor marijuana growing farms to six. The ordinance was since changed, eliminating the defined numerical cap and instead controlling the number by constraining them to industrial areas specifically designated for the nurseries. The ordinance was birthed under the legal tutelage of interim city attorney Julia Sylva, who was hired on a 90-day contract the very day, November 18, the ordinance was first considered. Earlier on November 18, city attorney Todd Litfin resigned. It is not clear whether the city’s intent to move ahead with the ordinance prompted Litfin’s exodus. He is not talking about the matter.
The ordinance will go into effect
30 days after Monday, i.e., December 23.
According to the ordinance “marijuana cultivation is a conditionally permitted use on property within the manufacturing/industrial zoning designation in the industrial park” and is restricted from taking place “within two thousand five hundred feet of a school, public playground or park, child care or day care facility, youth center, or church.” The ordinance further says the operations are “allowed only within fully enclosed and secure structures inaccessible to minors” and that “From a public right-of-way, there shall be no exterior evidence of indoor medical marijuana cultivation.” According to the ordinance “On-site smoking, ingestion, or consumption of marijuana or alcohol shall be prohibited on the premises of the medical marijuana cultivation facility [and] no advertising of companies, brands, products, goods and/or services shall be permitted. Signage shall not include any drug-related symbols.” Furthermore, according to the ordinance, “The medical marijuana cultivation facility shall not distribute, sell, dispense, or administer marijuana out of its facility to the public [and] shall not be operated as a medical marijuana dispensary.” The ordinance states that “Any and all permits permitting the operation of a medical marijuana cultivation facility shall expire and be null and void twelve months after issuance to the permitee, unless otherwise extend by the city manager, in writing. A minimum of fifty percent of all employees employed by the permitee at the cultivation facility, pursuant to this permit, shall be residents of the city.” The ordinance requires a security plan, including an alarm and security cameras in use 24 hours per day, seven days per week. The owners must produce footage from the security camera to the city manager upon demand. The city manager is required under the ordinance to carry out background checks of the owners, managers and employees of the facilities. Any falsification of the application for a permit or determination that the applicant has ever been convicted of a felony is grounds for denying the permit.
There is a limited window for applying to conduct such a cultivation operation. The ordinance states, “The city manager will accept applications for medical marijuana cultivation permits during a thirty day period after adoption of this ordinance. Such thirty day time period plus an additional seven days to complete the reviews and the preparation of the reports called for in this section shall be deemed the ‘application period.’” Those that pass muster with the city manager will then be ranked and evaluated and some will ultimately be granted a permit under the standards laid out in the ordinance.
Applicants must, according to the ordinance “execute an indemnification agreement prepared by the city… [that] shall fully indemnify the city for any and all litigation that may arise in furtherance of this ordinance, [and] carry insurance in the amounts and types that are acceptable to the city manager, name the city as an additionally insured, agree to defend at its sole expense any action against the city, its agents, officers and employees because of the issues of such approval; and agree to reimburse the city for any court costs and attorney fees that the city may be required to pay as a result of such action.”
The ordinance also states, “The city shall create an oversight committee to oversee activities of the permittee(s) to ensure that all applicable local, state, and federal laws are in compliance .”
The ordinance states “Recognizing that there is a potential conflict between federal and state law, it is the city council’s intention that this chapter shall be deemed to comply with California law as established by the ‘Compassionate Use Act” the Medical Marijuana Program Act, and all other state laws and regulation pertaining to medical marijuana.”
The operation of marijuana clinics and dispensaries in Adelanto is yet prohibited.
The City of Barstow and its police department were required by an arbitrator to reinstate officer Jimmy Walker and provide him with $163,403 in back pay, it came to public light this week.
The department terminated Walker in 2013 as a delayed consequence of an August 2010 incident. Walker, then 30, was arrested by San Bernardino County sheriff’s deputies who responding to a disturbance call in the 11200 block of Fifth Avenue in Victorville. Walker, who is white and lived in Victorville, allegedly assaulted an African-American couple, a 32-year-old man and a 31-year-old woman, prior to the deputies’ arrival. Once the deputies were on scene, Walker directed racial epithets toward the man.
Walker was subsequently charged by the San Bernardino County District Attorney’s Office with a misdemeanor count of violating the man’s civil rights, two counts of battery and one count of disturbing the peace.
Walker originally accepted a plea bargain to fighting in public and public intoxication and was put on probation and ordered by the court to pay $150 to the court’s victim restitution fund, make a $200 donation to the National Association for the Advancement of Colored People and enroll and complete a Narcotics Anonymous program. Upon completion of his sentence, Walker filed a motion to have all charges against him dismissed. The motion was granted over the objection of the San Bernardino County District Attorney’s Office.
The Barstow Police Department carried out an internal investigation and he was terminated.
It was publicly revealed this week that earlier this year an administrative law judge made a finding in a binding arbitration that Walker’s off duty comportment in a jurisdiction outside of where he was employed, though troubling, did not necessitate his termination. He was given two years’ pay and is now patrolling the streets of Barstow.
By Count Friedrich von Olsen
I offer this in support of General George Patton’s pronouncement that “Politicians are the lowest form of human life, and Democrats are the lowest form of politician…”
I never got on the Jerry Brown bandwagon, not even the first time around when he was the relatively young son of the former governor who had acceded to his father’s position and was being touted as possessed of a Jesuit education and an overabundance of fresh ideas. My impression was that he was at best a caretaker governor, who survived his two terms in office and then faded into political oblivion. I must admit, he made a comeback, first as Oakland mayor, then as California Attorney General and, five years ago, as governor once again, a span of 28 years after he previously left as governor and 36 years after he first served in that role. Thus, he was governor of California in three different decades, two separate centuries and two millennia, which is a remarkable accomplishment and maybe even a unique one among American politicians. As noteworthy as that is, it has no real bearing on the quality of his service. Recent events would seem to indicate that he is even more noteworthy for the level of corruption which has crept into his governance…
No, I am not referring to the manner in which he is virtually owned by his primary cadre of campaign donors, the state’s public employee unions, which has resulted in the state’s decline. An even starker picture of the seediness the Brown Administration has seeped into lies within the ongoing set of debacles relating to what is the most lucrative enterprise in California: the provision of energy in all of its forms…
Multiple issues have plagued the California Public Utilities Commission and the California Energy Commission under his watch. The most benign interpretation possible, it seems to me, is he is either incapable or unwilling to engage himself and his charges to check this activity, in which billions of dollars of both taxpayer and consumer money is at stake. It is also possible he is directly involved in the violating the trust of the millions of Californians he was elected to oversee and lead…
Over the last year, there has been a steady trickle of revelations about misbehavior on the part of former Public Utility Commission members, particularly former commission chairman Michael Peevey. This has entailed secret and illicit contacts, including ones at oversees locations, between commission members and utility executives while decisions – some with hundreds of millions or billions of dollars hanging in the balance – relating to those utility executive’s companies are pending before the commission. There is running through many of these contacts the suggestion that more than just words or information was exchanged between the parties involved…
From 2011 until early 2014, Dr. Tim Brown was a senior scientist in the Advanced Power and Energy Program at the University of California, Irvine and was also serving as a consultant to the Energy Commission in drawing up a map for determining the best locations for hydrogen refueling stations throughout the state to serve the hydrogen fuel cell cars which are soon to become commercially available. After serving as the architect of the “hydrogen highway,” Tim Brown resigned his position and then formed a company, First Element Fuel, which tapped into the hydrogen station grants being handed out by the Energy Commission. It is hard to say how much money Tim Brown’s company picked up in this way. One report was it was no more than $2 million. Another was that it received $10 million…
Governor Jerry Brown has done nothing about these circumstances involving the Public Utility Commission or the Energy Commission, either looking the other way or purposefully promoting or sustaining others involved. Michael Picker, formerly one of Jerry Brown’s top aides, was on the Public Utility Commission with Peevey the last year Peevey was chairman. Picker’s voting record on every issue that came before the commission was identical to Peevey’s. Brown has appointed Picker chairman. Energy Commission Chairman Robert Weisenmiller, who saw no problem with the conflict involving Tim Brown and approved the disbursements to First Element Fuel, was reappointed chairman by Jerry Brown…
Word now comes that we may be on the brink of learning how much Jerry Brown knew about Peevey’s depredations and when he knew them. While in Poland last year, Peevey met with executives of the Southern California Edison Company, a company of which he was once president. While in Warsaw, he worked out a deal with Edison whereby Southern California Edison and San Diego Gas & Electric Co. ratepayers were consigned to coughing up $3.3 billion, roughly 75 percent of the cost of shuttering the San Onofre Nuclear Generating Station, which grew inoperable because of Edison’s technical mismanagement of that facility. Now, in San Francisco Superior Court, attorneys Michael Aguirre and Mia Severson are seeking provision of approaching 80 documents, including reports, memos and emails relating to communications between Brown and/or his staff with Public Utility Commission members, including Peevey, when the San Onofre settlement was in the works. The Public Utilities Commission, now headed by Brown crony Picker and manned by four other Jerry Brown’s appointees, refuses to revisit the San Onofre settlement issue. The release of those documents could come as early as December 9, depending upon a ruling due that day in San Francisco Superior Court…
Already, however, one juicy tidbit has leaked out. On June 6, 2013, Governor Brown was in Rancho Mirage meeting with President Obama and Chinese President Xi Jinping. In the midst of that meeting, Governor Brown took a phone call from Edison CEO Ted Craver. Craver sent a memo to Edison board members to give them, he wrote, “a quick report on my phone calls with Gov. Brown. He said what we were doing seemed right under the circumstances.” A possible smoking gun in Craver’s memos is that he said Brown “indicated a willingness to” exonerate Edison of any wrongdoing with regard to the technical problems leading to the power plant shutdown…
All this is occurring against a backdrop which suggests the governor may be positioning himself for a bit of energy-related profiteering himself. It turns out he has recently used his executive power as governor to extract from California’s oil regulating agency maps, geologic surveys and records relating to oil and natural gas reserves beneath his family’s 2,700-acre ranch in Colusa County…
Did I already say that the lowest form of human life is the politician?
By Mark Gutglueck
Byron Waters was born at Canton, Cherokee County, Georgia, on the 19th day of June, 1849, the youngest son of the three children of Henry H. Waters, who was born in Renssalaer County, New York, near the City of Albany, in the year 1819, and Frances (Brewster) Waters. His uncle, James W. Waters, was both a Second District and Third District supervisor in the early days of San Bernardino County.
Byron’s father, Henry Hawley Waters, was essentially self taught and at the age of twenty years went to Georgia, where he polished his education and taught school and gained an excellent knowledge of law, achieving admission to the bar of Georgia. In 1858 Henry Waters was appointed executive secretary to Georgia Governor Joseph E. Brown, who whose son, Joseph M. Brown, afterward became governor. During the Civil War, Henry Waters retained the office of executive secretary to the governor and in that capacity, was loyal to the cause of the Confederacy despite his Yankee birth. He directed in large measure the military affairs of Georgia, holding the rank of colonel on the staff of the governor. He proved instrumental in mustering in thirty regiments for the Confederate service. In 1865, with the fall of the Confederacy, Governor Brown was deposed from office by the federal authorities and Henry Waters retired to a plantation in Coweta County, Georgia as the carpetbag political machine of the North was installed in the Peach State and the Ku Klux Klan rose from the underground.
Byron Waters, who was reared to the age of sixteen years in his native state and was afforded the advantages of its best private schools, in which he continued his attendance until the close of the war. The Waters family experienced serious financial reverses, as did nearly all others in the South at this time, and after leaving school young Byron worked for nearly three years in the cotton field on his father’s plantation. As a child and in his young manhood he had associates who were charter members of Georgia’s Ku Klux Klan. At that point, Byron’s father intervened, suggesting that Byron take a large store of cotton to market and utilize the proceeds to get the hell out of Georgia, leave the troubles and difficulties of Reconstruction behind him and sojourn to California, where Henry’s brother and Byron’s uncle was prospering.
Byron Waters came to California in 1867, at the age of eighteen years, where he began work in San Bernardino County as a cowboy on his uncle’s ranch in Yucaipa.
Punching cows was not what young Waters wanted to spend his life doing, and in April, 1869, he began the study of law in the office of Judge Horace C. Rolfe of San Bernardino. Later he continued his technical reading under the direction of Judge Henry M. Willis, also of San Bernardino. He was admitted to the bar in January 1871, and for the next fifty some years he was active in the practice of law in the various courts of the state of California but most predominantly in San Bernardino, retaining high prestige and distinction as one of the ablest members of the California bar as well as one of the most successful.
On December 31, 1872, he married Miss Louisa Brown, born on July 23, 1852, a native daughter of San Bernardino and one of the daughters of John Brown,
Sr. and Louisa Sandoval Brown, his wife. John Brown was the noted hunter and trapper from the Rocky Mountains who later established a toll road at the Cajon Pass. Louisa Sandoval Brown was a member of one of the distinguished families of Taos, New Mexico. They had nine children: Florence, Clara, Brewster, Sylvia, Frances, Helen, Emmett, Byron, Jr., and Elizabeth.
Byron Waters made his home and professional headquarters in San Bernardino. In 1881 he created and organized the Farmers Exchange Bank of San Bernardino, one of the leading financial institutions in the state. He was its first president, and held that office for several years.
In their 1922 book, history of San Bernardino and Riverside Counties, John Brown, Jr. and James Boyd wrote, “During the formative period of the bank, he guided its affairs with a firm hand and with the utmost discrimination and progressiveness — showing the same characteristic energy and integrity that have marked his career in all its relations.”
An unwavering Democrat, Byron Waters remained loyal to the party even while California and San Bernardino County were dominated by a Republican majority. In San Bernardino County, at the age 28, he was elected in 1877 to the state legislature. At the ensuing session he became a recognized leader of his party in the Assembly, and before the close of the session he stood at the head of the lower house as a member of that body. “His reputation for talent and personal and official integrity brought about the following year, 1878, his election as a delegate at large to the State Constitutional Convention, and he had the distinction in this connection of receiving a larger majority than any other candidate for such representation
in the state,” according to Brown and Boyd. “Though he was one of the youngest members of that convention, Mr. Waters’ thorough knowledge of constitutional law, his exceptional power in debate, and his prescience as to future growth and demands won for him a commanding influence in the deliberations of that convention.”
In 1886, Waters was nominated as the Democratic candidate for the office of justice of the Supreme Court of the State of California. He was unable to overcome the far greater strength of the Republican party and was defeated by a small majority.
Waters was affiliated with the Masonic fraternity beginning in 1873. He was characterized as a liberal in his religious views.
Together with his uncle James W. Waters, Byron Waters was one of the early major developers in San Bernardino. The Waters family built both homes and business structures in and around the city. James W. Waters was in some fashion wholly or partially responsible for a large brick building on the northeast corner of Third Street and Arrowhead Avenue, a brick building on Third Street once used as a courthouse, a residence at Second and F Street and an Opera House on D Street. Byron Waters built two structures for his law offices and three residences, first a cottage on West Fifth Street early in life, later the large brick residence on Fourth Street opposite what was the Elks Club, and later a residence on Bunker Hill, where with his family he was residing in the 1920s.
Byron Waters established a splendid cabin on a 160-acre patch of ground at Seeley Flat, located at an elevation of one mile above sea level, twelve miles north of San Bernardino in the San Bernardino Mountains. The cabin was built on a knoll above a meadow nestled among the surrounding pine-clad hills. He took his family to the cabin during summer retreats, often inviting relatives and friends to join with them, providing a full measure of old fashioned Southern and California hospitality.
By the time of his retirement, Byron Waters’ list of cases presented before the Supreme Court of the state was one of the largest claimed by any member of the bar then active. Brown and Boyd said of Waters, that at the San Bernardino Superior Court “and other tribunals there stands to his lasting honor many noteworthy victories as an advocate of great strength and versatility. More than fifty-one years of consecutive devotion to the work of his profession have made Byron Waters one of its peers in the
state and the bar has been honored and dignified alike by his character and his services.”
Waters died in 1932 at the age of 83.