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By Mark Gutglueck
Upland City Manager Martin Thouvenell last December unilaterally and without authorization by either the Upland City Council or the city’s voters waived the right of Upland residents to a vote on the taxes that would be imposed on them as a result of the closure of the city’s fire department and the annexation of all properties within the city limits into a county fire service assessment district.
Documentation obtained by the Sentinel shows that on December 5, 2016, in his capacity as Upland city manager, Thouvenell submitted documents to the San Bernardino County Local Agency Formation Commission relating to the city’s application to shutter its 111-year-old municipal fire department in favor of having the county fire agency assume firefighting, fire safety, fire prevention, emergency response and emergency medical service in the City of Gracious Living. In order for that takeover to take place, the county imposed requirements that a sufficient portion of the ad valorem property tax heretofore received by the city which is used to pay for the provision of city services be rerouted to the county to defray the projected cost of the county fire agency taking on the role until now filled by the Upland Fire Department. At that point an assessment arrangement was proposed by which the city’s property owners would chip in an amount, above and beyond the property tax they already pay, to meet a significant portion of the county fire division’s costs of operating in Upland. The Local Agency Formation Commission cataloged this as an assessment. What has not been widely discussed is that the city intends to use the savings it will yield by the elimination of the city’s municipal fire fighting service, the reduction in the cost of providing that service based upon the county fire department’s lower operation costs and the influx of some $3,346,440 [21,918 parcels X $152.68] in heretofore unavailable taxes in the form of assessment revenue toward other municipal operating costs, what many Upland residents see as a shell game that entails what is essentially an increase in taxes they and their fellow citizens did not have the opportunity to vote upon.
Thouvenell, in signing the assessment district formation application with the Local Agency Formation Commission represented himself as the “proponent,” and listed himself as the agent of the city to receive all of the related notices and other communications. In connection with the application he signed a document which states:
“As the proponent, I acknowledge that annexation to the San Bernardino County Fire Protection District may result in the imposition of taxes, fees, and assessments existing within the city or district on the effective date of the change of organization. I hereby waive any rights I may have under Articles XIII C and XIII D of the state constitution (Proposition 218) to a hearing, assessment ballot processing or an election on those existing taxes, fees and assessments.”
In this way, Thouvenell, on behalf of the taxpayers of Upland, signed away the rights the residents of Upland are accorded under the California Constitution in those articles and he directly and indirectly assumed all liability for violations of the Constitution, even as, in his capacity as city manager, he is indemnified by the residents of the city under the terms of his contract. In other words, by his action in signing the waiver, Thouvenell preempted, or sought to preempt, forever the ability of Upland’s residents to assert those Constitutional rights.
California Constitution Article XIII D§1(b)(5) says “No fee or charge may be imposed for general government services including but not limited to fire services where the service is available to the public at large in substantially the same manner as it is to property owners.” The burden of proof is on the agency on this issue, according to the California Constitution.
And XIII D §6(c) says no property related fee or charge may be imposed except by majority vote of the property owners subject to the fee or charge, or by 2/3 of the electorate. Further, Article XIII C, §2c(2)(d) says: “No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a 2/3 vote.”
Pursuant to the Upland application, the San Bernardino County Local Agency Formation Commission’s staff made a recommendation that San Antonio Heights, an unincorporated county area adjacent to Upland which is currently provided with fire protection service by the county fire department within what is referred to as the Valley Service Zone, be consigned along with Upland into another fire service zone, FP-5, which was originally formed as a service zone for the communities of Silverlakes and Helendale, which are located in the Mojave Desert, 64 miles driving distance or 49 miles as the crow flies from Upland. As a consequence, all property owners in both Upland and San Antonio Heights, which heretofore have received fire protection service as a consequence of their municipal or county unincorporated district status in which property taxes defrayed the cost of basic services, will now be assessed $152.68 year. To seal this deal, the San Bernardino County Local Agency Formation Commission scheduled a “protest vote” confirmation of the annexation and the assessment district formation – a mere formality – consisting of the San Bernardino County Local Agency Formation Commission’s invitation of property owners and voters within each of the jurisdictions to lodge letters of protest against the annexation. Each protest letter received was to be counted as a single vote against the annexation. Any resident or voter not lodging a letter of protest was to be presumed to have voted to accept the annexation. Nothing approaching sufficient opposition appeared to be manifesting in Upland or in San Antonio Heights to achieve the 25 percent protest threshold, which would have triggered a traditional vote at Upland and San Antonio precincts on the annexation and the inclusion of the two communities into the assessment district, let alone the majority vote against the annexation which would have nixed it outright. The protest period began on May 12 and was previously set to conclude on June 14. Because the San Bernardino County Local Agency Formation Commission staff failed in the comprehensiveness of its noticing of the protest process to invite all of the property owners in Upland and San Antonio to lodge letters of protest, an attorney, Joseph D. Farrell, threatened the San Bernardino County Local Agency Formation Commission with legal action. The San Bernardino County Local Agency Formation Commission capitulated and extended until July 14 the protest period for Upland and San Antonio Heights. Despite an energetic and seemingly well-coordinated effort by a core group of Upland and San Antonio residents to incite residents/parcel owners there to lodge letters of protest, it is anticipated that the annexation will go through.
This has not gone over well in either Upland or San Antonio Heights, where growing numbers of residents, miffed at having had what they believe to be their right to vote on approving or disapproving newly created taxes they are to pay, are queuing up to join with some of their fellow residents who are coordinating with attorneys to legally contest what is being foisted on them.
An issue in the anticipated legal action is Thouvenell’s signing of the waiver.
At the November 28, 2016 Upland City Council meeting, an item on the agenda, Item 14 B, related to annexing the city into a San Bernardino County Fire Protection District for fire service delivery. During the consideration of 14 B, a motion by Mayor Ray Musser seconded by Councilman Gino Filippi to adopt a resolution in support of annexation into the San Bernardino County Fire Protection District 5 was approved by a unanimous vote of the council. Another motion by Councilman Filippi to authorize the city manager to negotiate the terms and conditions of the annexation with the county and the fire district and return to the city council for approval was seconded by Councilwoman Carol Timm, and was approved unanimously.
On December 5, Thouvenell, acting in his capacity as the city manager, signed documents initiating the annexation application which were then processed by the San Bernardino County Local Agency Formation Commission which. Among those documents was the “certification” which waived the rights of the city’s residents to vote on any taxes to be imposed on them as a consequence of the annexation. There was no meeting of the Upland City Council between November 28 and December 5, 2015 at which Thouvenell would have had the opportunity to return to the city council for the approval of the terms he had negotiated with the county and the fire district relative to the annexation. The next council meeting after November 28 took place on December 12, during which there was no reference to the annexation.
It thus appears Thouvenell acted unilaterally and without proper council authorization when he signed the waiver, having not complied with the November 28 vote of the council to have him negotiate the terms of the annexation and return to the city council for their approval. There are variant theories as to whether the city has the right to waive the entirety of the city’s voters’ rights to voting upon the imposition of new taxes. Some say the city does not have that right at all. Others say that while it is questionable as to whether the council has that right, the city manager, who is not an elected official, certainly doesn’t have that right.
Thouvenell spurned the Sentinel’s request for an explanation of his rationale in signing the waiver and whether he now believes he may have acted too hastily in signing it on December 5. Nor did Thouvenell indicate whether he now thinks it might have been better to bring the waiver back to the city council to let it make the decision on whether to grant the waiver, and he did not comment on whether he should have deferred the signing of the waiver to the mayor.
Indeed, the city’s leaders appear to have worked themselves into a very delicate legal position, so much so that the city’s publicist, Steve Lambert, who had previously been utilized to draft statements for the city council to overcome the growing discomfiture of Upland residents over the annexation, has been forbidden to work any further on the issue out of concern that the words he might craft for the council will create difficulty for the city when the legal actions are filed. The Sentinel has learned that there are at least four law firms looking at the options residents have both individually and collectively to contest the annexation in court. Accordingly, city officials generally, including the city manager and the city council, are now withholding comment on the festering issue altogether. Early this week, a memo from city attorney Jim Markman relating to the legal pitfalls the annexation represents went out to city council members. Language from the memo went public and the Sentinel queried Markman about the issues at play.
Markman responded, “The council’s clear intent and Marty’s charter was to seek annexation to the fire district which required the application of the district tax to provide the services. This is spelled out particularly in the service plan and is understood by the public and has been objected to energetically by members of the public. The application of the tax is a policy decision made by the council. The city waiver does not deprive any opponent of the annexation from objecting based on policy or legal issues available to that opponent. A city cannot waive the rights of individual taxpayers. An affirmation of the city council’s intent that the district tax revenues be available to provide fire service under the area service plan is consistent with the council actions and direction to Marty. Further, the city is not a taxpayer and, accordingly, is not in the position to make a Proposition 218 protest. That is why I believe that the waiver itself has no substance or meaning in the context of this annexation.”
Markman suggested that Thouvenell’s signing of the waiver was a mere formality in the application that has no binding impact on the city’s voters and should not elicit alarm.
“In order to process the application, LAFCO [the Local Agency Formation Commission] required the city (through Marty) to execute the application in the form presented, which included the standard, but in this case, meaningless Prop 218 waiver,” Markman said. “The application form is general in nature and has numerous sections inapplicable to the subject annexation request. Please note the number of sections to which the city replied with the phrase ‘not applicable’ or ‘N/A.’ The form waiver would be very meaningful in the context of a private landowner (e.g., a developer) applying to annex to the district and, after being annexed, having the opportunity to avoid a tax by asserting a Proposition 218 deficiency. In other words, LAFCO meaningfully uses the Proposition 218 waiver to prevent such a private landowner from seeking to eradicate the tax base identified in the plan of service after annexation is approved. Otherwise, such a private landowner could annex to a public entity and thereafter seek to avoid payment for services. That is the context in which such a waiver would have substance.”
The “notion… that Marty was not authorized to sign LAFCO’s standard application form which includes the Proposition 218 waiver,” Markman asserted “is incorrect. Marty was instructed to process the annexation which transparently identifies the application of the district tax as necessary to implement the plan of service. It is not my function to address the council policy decision to include the district tax as an integral component of the annexation. Nor is there any merit in criticizing Marty for implementing that council policy, which is exactly what he has done.”
Grace Lehman, a San Antonio Heights resident said, “If this is an important thing to the City of Upland, then they need to make their case to the people of Upland and let them decide whether they want to have their taxes raised $150.00 plus 3 percent per year. Upland needs to leave San Antonio Heights out of it. We don’t want to be annexed by, to, or with Upland in any way. We’ve made that point before. We see it as just a way of them inching their way to get San Antonio Heights on their property tax rolls. Then they will want to take our water rights too.”
Joseph D. Farrell, who is representing several property owners in their resistance to the imposition of the assessment district, told the Sentinel, “California voters have repeatedly, in a series of voter initiatives going back to Proposition 13 in 1978, stated a preference that tax increases be approved by voters in an election. The LAFCO process circumvents that oft stated desire.”
Farrell said, “No one is against either the San Bernardino County Fire Department, or its members. The opposition is not about fire protection; it’s about taxation.”
Farrell said that Upland, the county and the Local Agency Formation Commission were engaging in taxation without representation.
“Upland can do what it wants, limited by what its citizens are willing to tolerate from their elected officials,” Farrell said. “LAFCO decided unilaterally to include San Antonio Heights in the FP-5 proposal. No one asked us. No one came and proposed a change. Members of San Bernardino County LAFCO, none of who can be voted upon by residents of the Heights, are ramming this down residents’ throats without even telling us how it might benefit us. That’s wrong.”
Farrell said the county and its officials were not exercising proper oversight in holding the excesses of the City of Upland and the Local Agency Formation Commission in check.
“Our Supervisor, Ms. [Janice] Rutherford, has run away from Heights residents and forced me to challenge LAFCO’s improper notice despite knowing full well LAFCO failed to comply with the law,” Farrell said.
The city council, which was empowered through an elective process, should have more respect for the system that has put them in place, Farrell asserted.
“All residents want is the ability to vote,” Farrell said. “I don’t understand why that is so foreign to our elected officials.”
Cory Briggs, another attorney representing local residents seeking to unwind the imposition of the assessment district, said, “If LAFCO requires all those waivers and concessions from an applicant, but the Upland city manager did not have the authority to give and make them, how could he have had the necessary legal authority to start the process in the first place? I anticipate that legal question and the other important ones being answered in court if there are not enough protests to defeat this money grab.”
Marjorie Mikels, an Upland resident and attorney looking into the matter, said, “The issue is not whether Marty Thouvenell had the right, duty or obligation to sign the waiver. The waiver is an admission of fact. It proves the city’s fraud on the property owners. It is an admission that both LAFCO and the city through its ‘proponent’ acting for the council, knew an election was required under Proposition 218 (which was incorporated into Article XIII C & D) and that they were going to circumvent that requirement by nomenclature – i.e., by calling what they are doing an annexation. There is no territory of Upland contiguous to FP-5 and no part of Upland is being annexed into Helendale. They are calling it an annexation, but annexations are only to cities or districts, and FP-5 is not a city or a district – it is merely a tax zone. Tax zones are specifically excluded from annexations.”
Mikels, continued, “So, it is a fraud, one that is being perpetrated to make us believe we are being annexed and will be subject to FP-5’s already-voted on taxes, and are therefore not entitled to vote, just to protest if we want to. The protest forms are not votes. The protest forms are like signing a petition. One can get an initiative on the ballot with only 10 percent of the signatures of people who voted in the last gubernatorial election. But this protest requires 25 percent of registered voters, whether they voted or not. This is LAFCO and its executive director, Kathleen Rollings-McDonald, using an unauthorized procedure, the protest procedures designed for actual annexations. Annexations are when some contiguous unincorporated land is joining a city, for more efficient delivery of services. Our land is not being joined with or linked up to Helendale FP-5, and Helendale won’t be delivering us any services. Our boundaries aren’t changing – just our taxes. This is a fraud and Mr. Thouvenell’s waiver is Exhibit A.”
“I’m not a member of any organized political party. I’m a Democrat.” –Will Rogers
Beginning in the 1960s, San Bernardino County began to drift ever further rightward politically. Locals backed Ronald Reagan religiously when he ran for governor in 1966 and for reelection in 1970. San Bernardino County was at the forefront of resistance to Jerry Brown during his first two terms in office as governor. By 1980, when California was Reagan Country, San Bernardino County was at its epicenter. Throughout the 1980s and 1990s, Republicans dominated San Bernardino County. Even as California began to trend toward liberalism statewide, San Bernardino County remained staunchly GOP territory, and after the turn of the millennium, it remained one of the Republican bastions in the state, even as California as a whole was leaning ever more toward the Democrats, as Jerry Brown made his second coming, first as state attorney general and then as governor.
In 2010, however, the number of registered Democrats in San Bernardino County surpassed the number of registered Republicans and the Democrats have held a growing plurality among registered voters ever since. But that watershed event did not send San Bernardino County Republicans into a panic. One of the political realities nationwide and in California is that as a group, Republicans turn out to vote in substantially higher numbers than do Democrats. Statistics vary, but in any given year in any given election, Republicans show up to vote anywhere from seven percent to 13 percent more frequently than Democrats. Thus, even after the Democrats pulled out in front of Republicans in terms of the party identification of registered voters in San Bernardino County, the majority of office holders at the city, county, state and federal level tended to be Republicans. Only in the area of the county’s Fifth Supervisorial District covering most of San Bernardino, Colton, Rialto, more than half of Fontana, Bloomington and Muscoy, did the Democrats enjoy a significant toehold. And even then, at the level of the councils in San Bernardino and Fontana, the Republicans are in ascendancy.
When Chris Robles, a professional political operative active in Democratic politics in Los Angeles County, moved to Chino Hills and acceded onto the Democratic Central Committee in 2012, there was confidence that he would use his expertise to undo the Republican political lock on San Bernardino County. In 2012 he was elected president of the central committee and has retained that position since. Yet under his guidance, the party has continued to flounder. One minor change in the Democrats’ favor came in 2012 when Democrat James Ramos, who had been the chairman of the San Manuel Indian Tribe, used his wealth to defeat incumbent Third District County Supervisor Neil Derry. But Ramos’ victory was a red herring, as Ramos was promoted not by Democrats but by one faction of warring Republicans in the Third District. Upon election, Ramos appointed Phil Paule, who had been the district director for Republican U.S. Representative Darrell Issa for eight years and was himself a Republican candidate for the State Assembly. Ramos has remained essentially estranged from Democrats throughout his tenure as supervisor, using his wealth to support, for the most part, Republican candidates.
Despite Democrats currently having a registration advantage over Republicans in San Bernardino County approaching a 4-to-3 margin – 360,898 registered voters or 40.2% to 285,015 registered voters or 31.8% among a total of 897,193 voters overall – three of the five members of the board of supervisors are Republicans; two of the county’s five congress members are Republicans, with two of the Democratic congress members having districts in which those portions outside San Bernardino County are heavily Democratic; three of the county’s four state senators are Republicans; five of the county’s eight members of the California Assembly are Republicans; and 17 of the county’s 24 cities have city councils composed of a majority of Republicans. Where the Democrats hold state or federal office in San Bernardino County they hold a commanding registration advantage. In those electoral jurisdictions where the Democrats have close to parity with the Republicans or hold a lead that is substantial but less than entirely overwhelming, they have consistently lost to Republicans. Such is the case in the 40th Assembly District where registered Democrats outnumber registered Republicans 91,615 or 40.4 percent to 76,234 or 33.7 percent, and a Republican, Marc Steinorth, holds office. In San Bernardino County’s Fourth Supervisorial District, where the registration numbers are lopsidedly in favor of the Democrats 71,859 or 43.1 percent to 47,128 or 28.3 percent, a Republican, Curt Hagman is in office, even despite the fact that his opponent in the 2014 election was a then-incumbent Democratic U.S. Congresswoman, Gloria Negrete-McLeod.
In May, a contingent of Democrats initiated an effort to remove Robles as central committee chairman. At the May 25 meeting of the Democratic Central Committee, an overwhelming number of advocates of his removal showed up to support those elected and ex-officio members of the committee intent on removing him. That ran into difficulty, however, when Robles used his control of the proceedings to refuse to recognize the call for a vote of no confidence. He then surrendered chairmanship of the proceedings to one of the members of the executive board, Mark Westwood. Westwood is one of the four members of the executive board closely affiliated with Robles. Westwood twice ruled further calls for votes of no confidence against Robles that were seconded to be out of order.
This week, those intent on Robles’ removal came armed with documentation that in his capacity as a professional campaign consultant he has worked for a Republican candidate running against an endorsed Democrat in San Bernardino County. That evidentiary documentation included a letter from Chris Masami Myers, the executive director of the California Republican Party informing him that there had been a petition to have him removed as chairman and seeking his response to the charges laid out in the petition for removal no later than 5 p.m. on July 14.
Seeming to anticipate that a renewed call for his immediate removal would be made last night, Robles had moved to ensure that he would have the maximum number of supporters present to support him in the event that he was forced to allow such a vote to occur.
From the outset, Robles found himself under fire and unable to direct the proceedings to even the vaguest semblance of order.
He was not able to get the collective to allow a vote on considering the agenda for the night’s proceedings, as he was besieged with calls to amend the agenda with the question of his removal.
One member came with a prepared statement which she read: “In accordance with Roberts Rules of Order Section 41 on page 373, I move to amend the agenda to have officer removal be immediately after the approval of the agenda.” The motion was seconded. Robles at first refused to allow such a vote to take place, but after several attempts as per Robert’s Rules, he relented. That vote went in his favor, 29 to 24.
He then endeavored to complete the finalization of the evening’s agenda so it could be set and the evening’s discussion on those issues initiated. He was again beset with numerous points of order, another motion and second to have him removed as a member, which Robles said was out of order, and then other calls for adjustments to the agenda, some of which were granted, including a discussion of offering assistance to the lone Democrat on the city council in Upland, Janice Elliott, who is under siege by her Republican colleagues and one to end the evening’s proceedings by 9 p.m..
At 7:46 p.m. a vote to close further debate on the contents of the agenda was called, but Robles did not like the outcome, so they counted again. It did not pass by the necessary 2/3 vote.
Robles’ efforts to carry on with the meeting were further interrupted by an accusation that he was no longer chair because he had refused to respond to a certified letter with the grounds for his removal. Robles engaged in some back and forth over whether he could be considered to have actually been served with the petition, though he conceded he had received it and had responded to it “out of an abundance of caution.” To this there were points of order stating that no response had been received. Robles responded, telling the group the letter was inconsistent with the San Bernardino County Democratic Central Committee bylaws because it did not come from the executive committee. Robles also said he was not about to allow a “kangaroo court” when he had not been given the opportunity to respond.
Robles then moved the meeting to approval of the minutes of the Executive Committee meetings. Laurie Stalnaker, the committee’s finance director, stated that she had been consistently rebuffed in her efforts over the last several weeks to obtain minutes of previous meetings so she can reconcile expenditures made out of the committee’s bank account with their authorizations., She then engaged with Robles in an extended exchange in which Robles refused to grant her requests for a redetermination of the action tabled at the Executive Committee meeting to consider the certified letter and removal of Chris Robles. Over this issue the meeting erupted into chaos and at 8:27 p.m., Robles abruptly adjourned the meeting and called in the county sheriff. Four law enforcement officers arrived to herd the group out of the room. None of the remaining items on the agenda were discussed.
While Robles yet retains his supporters on the Democratic Central Committee, including ones who maintain he is being hamstrung in his effort by obstructionists, there is a growing contingent of party members who believe the party’s effectiveness in San Bernardino County has been compromised by his commitment to his own professional for profit electioneering efforts, some of which clash with party goals. Some have suggested that Robles was planted in San Bernardino County by the Republicans, an assertion he scoffed at. Others believe that his reaction to criticism is a manifestation of his nervousness about financing irregularities that Stalnaker’s audit might touch on.
Following his anticipated response to a separate action, the petition for his removal as county chair that is due July 14, a showdown between Robles loyalists and those intent on his removal appears inevitable. –Mark Gutglueck
By Ruth Musser-Lopez and Mark Gutglueck
A week after one of its strongest showings in the Colonies Lawsuit Settlement Public Corruption Trial, the prosecution found itself pinned down under heavy return fire by the lead attorney for the case’s central defendant in the 25th week of the proceedings before the two juries hearing the matter.
Stephen Larson is a former federal judge and federal prosecutor and is now the attorney for Rancho Cucamonga-based developer Jeff Burum. In three days of court this week, Larson executed a legal tour-de-force, neutralizing the most damaging elements of the testimony against his client by the county’s former top civil attorney, confronting the state’s prosecutor over what he alleged was an unethical move by the prosecution team to put on testimony it knew to be false, and virtually arm wrestling the judge in the case to allow him to pursue a line of questioning with regard to the lead investigator’s omission of exculpatory evidence from his reports. Larson then relentlessly hectored the lead investigator with regard to inconsistencies in his sworn testimony and assertions during his interrogations of witnesses.
Testifying at the end of Week 24 in the trial was Dennis Wagner, who had occupied the position of county counsel – the highest ranking in-house attorney working directly for the county – during all but the last three weeks of the six months leading up to the board of supervisor’s vote on November 28, 2006 to confer $102 million on the Colonies Partners to settle the lawsuit that company had brought against the county and its flood control district in 2002 over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. It is the prosecution’s contention that the settlement was tainted by extortion and bribery, in which Burum, one of the managing principals in the Colonies Partners, worked with former sheriff’s deputies union president Jim Erwin to threaten then-county supervisors Bill Postmus and Paul Biane with the exposure of derogatory information concerning their financial and personal affairs during the 2006 election season. Three weeks to the day after the November 7, 2006 election in which Postmus was elected assessor and a pay raise measure for the supervisors sponsored by Biane was passed by voters, Postmus and Biane joined with their board colleague, Gary Ovitt, to approve the $102 million settlement. Over the next seven months, the Colonies Partners made $400,000 in contributions – $100,000 each – to political action committees set up for or controlled by Postmus, Biane, Erwin and Mark Kirk, who was Ovitt’s chief of staff. Those political contributions were thinly-veiled kickbacks, prosecutors allege. Postmus and Erwin in February 2010 were criminally charged with involvement in an extortion and bribery conspiracy in which Burum; his associate in the Colonies Partners, Dan Richards; Biane; Kirk; and Patrick O’Reilly, a public relations specialist working for the Colonies Partners, were outlined in the criminal filing as uncharged coconspirators and referred to as Does 1 through 5 without being identified by name. Postmus in March 2011 pleaded guilty to 14 felony charges of political corruption while he was in office as supervisor and assessor. He turned state’s evidence and testified before a grand jury in April 2011 that in May 2011 handed down a 29-count indictment of Burum, Biane, Erwin and Kirk.
Postmus and his one-time political protégé, Adam Aleman, have already testified in the trial, and both recited the allegations central to the prosecution’s case. In the weeks before Wagner testified, defense attorneys sought to blunt the damage inflicted upon their clients by Postmus, the one-time chairman of both the board of supervisors and the San Bernardino County Republican Central Committee, by highlighting his decade-long immersion in methamphetamine addiction which ravaged his memory, leaving him open to suggestion and throwing into question the accuracy of his assertions that Burum and Erwin threatened to expose his homosexuality and drug use, and that while the legal battle was raging between the county and the Colonies Partners, Burum had made a commitment to support him in his future political endeavors or in his forays into the private sector if he left public office, but only after his company’s legal dispute with the county was resolved. Defense attorneys savagely attacked Aleman, dwelling at length upon his own legal travails and criminality, which included abusing the public trust while he was serving in the $190,000-per year total compensation assistant assessor’s position Postmus had conferred upon him when he was only 23-years-old. Lacking a college degree and with absolutely no knowledge or expertise with regard to ascertaining the value of real estate or other tangible assets for tax purposes, Aleman instead of immersing himself in the workings of the assessor’s office and the intricacies of his assignment engaged in activities promoting the Republican Party and Republican candidates. Defense attorneys in painstaking detail forced him to elaborate on how he had reacted when the county’s civil grand jury and the district attorney’s office began nosing around the assessor’s office in reaction to reports of untoward activity there, which included his ordering an office secretary to alter public documents, taking it upon himself to destroy a computer hard drive from one of Postmus’ county-issued computers, and then perjuring himself when called to testify before a grand jury. All of this was recounted, along with an account of his arrest and prosecution. It was in his effort to forge a plea deal with prosecutors, defense attorneys suggested by their questioning, that he fabricated an elaborate tale of political graft and corruption implicating the four current defendants.
Wagner followed Aleman to the witness stand. Earlier in the trial, five of the county’s lawyers involved in the Colonies case had testified as prosecution witnesses. Prosecutors sought to have them illustrate the validity of the county’s position in the lawsuit with the Colonies Partners and to propound the assertion that the $102 million settlement was not only out of keeping with any actual damage the Colonies had sustained as a consequence of the county’s action at issue in the lawsuit, but that such a lopsided settlement severely compromised the county’s prospects of successfully waging a lawsuit of its own, an indemnity action, against three other parties that were involved in the situation vis-à-vis the Colonies at San Antonio and the Colonies Crossroads projects: the City of Upland, which had land use and planning authority with regard to the Colonies projects; CalTrans, i.e., the California Department of Transportation, which was responsible for constructing a freeway across the Colonies Partners’ property; and the transportation agency for all 24 of the county’s cities and the county itself, then known by its acronym SANBAG, the San Bernardino Association of Governments, which was likewise involved in the regional and local traffic circulation issues that impacted the project and the area around it. Two of the previously testifying attorneys, however, had represented the county after the settlement was made and had thus been involved in seeking to recover money from the county’s insurance carriers to offset the payout to the Colonies Partners. In so doing, they had been obliged to assert in pursuing those insurance claims that the $102 million settlement with the Colonies Partners was a reasonable one. This played into the hands of the defendants’ attorneys, who had more than one field day in getting those attorneys to re-mouth their representations made in seeking recompense from the insurance companies, essentially that the $102 million settlement was an objectively reasonable one which was honestly arrived at after hard but fair bargaining. Wagner, however, was not hamstrung in this fashion. He left as county counsel three weeks prior to the $102 million settlement being ratified by the board of supervisors – on the same day Postmus was elected supervisor and the pay raise measure for supervisors passed – and he was not in place nor in any fashion involved in the subsequent effort to recover insurance money for the county relating to the settlement with the Colonies Partners. He was free to say – and he did – that the deal was contrary to the interests of the county. He also said that the board of supervisors was being continually advised of such, that the county’s attorneys uniformly detected flaws in a series of findings and a tentative ruling against the county made by Judge Christopher Warner following a bench trial with regard to ownership issues and usage rights on the Colonies Partners’ property, and that the county’s lawyers strongly recommended that the matter be appealed. He further testified that he told the board of supervisors – as did the outside law firm representing the county in the lawsuit with the Colonies Partners – that if the board persisted in settling the suit on the terms being dictated to it by the Colonies Partners he would resign. Indeed, when the board on election day voted 3-2 to enter into a settlement valued at $102 million which included the provision of both cash and surplus land owned by the county to the Colonies Partners, he resigned. That deal was not finalized because four votes of the board of supervisors were required to ratify a deal involving the conveyance of land. It was three weeks later when a $102 million deal involving just cash was passed on a 3-2 vote.
Wagner was a valuable prosecution witness for another reason. While he had worked as a line attorney with the office of county counsel for ten years beginning in 1994, he had left the employ of the county to go into private practice in 2004 with another veteran of the office of county counsel, Tristan Pelayes. In 2005, the law firm of Wagner & Pelayes had represented Bill Postmus in a legal matter he was involved in. Also in 2005, according to the testimony of multiple witnesses, Postmus began heavily militating toward settling the lawsuit. By the spring of 2006, Postmus was growing increasingly impatient with the county’s legal team, its analysis of the legal issues surrounding the lawsuit and its resolve to contest the suit, those witnesses said. Moreover, he was absolutely disregardful of the efforts of the lawyers to keep him informed of the legal issues involved in the lawsuit with the Colonies Partners as those issues developed and unfolded. He evinced complete disrespect for the lawyers altogether and when the county’s legal team did not bend to his will that the case be settled on the terms being proposed by the Colonies Partners, he initiated, in the spring of 2006, an effort to outsource the office of county counsel, resulting in the exodus of then-county counsel Ron Reitz. Based on his relationship with Wagner & Pelayes and the consideration that both Dennis Wagner and Tristan Pelayes had institutional knowledge with regard to the office of county counsel by virtue of having worked there previously, Postmus settled upon hiring Wagner as county counsel, which was, as far as he was concerned, the next best thing to outsourcing the office. Postmus’ expectation was that Wagner would, as county counsel, steer the county into a settlement with the Colonies Partners. Upon coming up to speed on the case, Wagner testified, he grew determined to see it through, which was contrary to Postmus’ intention. In this way, Wagner demonstrated that there was absolute unanimity among the county’s lawyers with regard to remaining steadfast in contesting the Colonies Partners’ suit and not settling the matter on the terms the Colonies Partners and Postmus were set upon.
On Monday, Larson continued the spirited and sometimes tense cross examination of Wagner he had begun the previous week. Larson asked about a complaint to the Commission on Judicial Performance that had been lodged against both of the jurists before whom the Colonies Partners’ litigation against the county had been heard, San Bernardino County Superior Court judges Peter Norell and Christopher Warner. Both judges had made crucial findings against the county with regard to its flood control easements on the Colonies Partners property. Those easements had been recorded when the property was owned by the San Antonio Water Company in 1933, 1934 and 1939. The 1934 easement specified that the county flood control district could use roughly 31 acres on the property for a flood control basin or channel. The 1939 easement confirmed that the 31 acres specified in the 1934 easement could be used for flood control purposes without having to reimburse the property owner and that another approximately 30 acres could be assigned for use in accommodating flood water runoff if such was necessary, but that the flood control district would need to come to an accommodation with the landowner over compensation for that 30 acres. In 2003 Norell had made a finding that the county had abandoned those easements through nonuse. The county appealed that ruling to the 4th District Court of Appeal in Riverside, which in 2005 reversed Norell, declaring the easements were still intact. In 2006, Warner arrived at the conclusion that the easements had been extinguished through the county’s overuse of them in making his tentative ruling against the county. In the second half of 2006, the county was awaiting the entering of Warner’s ruling against the county and his ruling on the easements so it could appeal the matter once again to the 4th District Court of Appeal. At this point, while the county was also participating in mediation sessions with the Colonies Partners before former California Supreme Court Justice Edward Panelli with regard to the suit, Hesperia Councilman Jim Lindley informed deputy county counsel Carol Greene that he had heard that Burum was bragging that he was a golfing partner with the judge hearing the case. In September 2006, unable to establish whether the judge Burum was referring to was Norell or Warner, Wagner in his capacity as county counsel lodged a complaint with the California Commission on Judicial Performance against both Norell and Warner. Thereafter, it became the position of the office of county counsel that a settlement of the Colonies lawsuit was not advisable until the complaint with the Commission on Judicial Performance had been resolved. Ultimately, two years later, the commission would come to the conclusion that some elements contained in the complaint relating to Norell and his judicial comportment had been sustained and he had fallen into a state disrepute. To the extent that the commission was unable to sustain the accusation with regard to Warner, it discontinued its inquiry.
Starting with the complaint to the Commission on Judicial Performance as a reference point, Larson aggressively, indeed somewhat truculently, angled at Wagner.
“You were doing all that you could to shut down the settlement agreement, correct?” Larson demanded to know.
Supervising Deputy District Attorney Lewis Cope objected, but was overruled by Judge Michael Smith.
“You were doing all you could, including filing a complaint against a judge you admired,” Larson persisted.
“I did my job,” Wagner said. “I raised the issue that I needed to. That judicial complaint was vetted with a number of folks, Jones Day [an outside law firm representing the county in its litigation against the Colonies Partners], their ethics guy in the state of Ohio. It was not done lightly, sir.”
Larson asked if the topic reminded Wagner of his testimony the previous week in which Larson had asked about “Mr. Postmus accusing you of trying to scuttle the settlement agreement.”
“Correct,” Wagner said.
Larson revisited some of the answers Wagner had given last week.
“Then you said, that is why you made the comment to the board that they have the absolute right to settle this case. That is what you told the board back in November 2006.” Larson said.
Wagner agreed. “That is exactly what I told the board,” he said.
“In fact, Mr. Postmus actually accused you of trying to tank the deal,” said Larson.
Wagner said he told Postmus and the board that they were not bound by the advice he and the rest of the office of county counsel and the outside lawyers were providing.
“You don’t have to listen to us lawyers,” he quoted himself as saying. “You can do what you want.”
At one point, Larson established that word about the complaint to the commission was on the brink of going public and that Jeff Horowitz, then a reporter with the San Bernardino Sun, had spoken to Supervisor Dennis Hansberger about the complaint. It was notable, Larson suggested, that Hansberger, the member of the board of supervisors most virulently opposed to the settlement, was himself skeptical of the basis and substance of the complaint, having indicated “that he didn’t give [the accusations] much weight as they are only unsubstantiated allegations.”
Larson referenced an email on the subject of Horowitz’s inquiries about the complaint, one from then chief deputy county counsel [and now Superior Court Judge ] Michael Sachs that had been sent to Wagner and which Wagner forwarded to Ruth Stringer, who had succeeded him as county counsel, dated December 1, 2006, just a few days after the settlement was effectuated and more than three weeks after Wagner’s departure as county counsel but while he was still assisting in transitioning the office to Stringer’s leadership. Sachs’ email dealt with Horowitz’s inquiries and the effort by the county being quarterbacked by the office of county counsel to keep the subject of the complaint to the Commission on Judicial Performance under wraps.
“Horowitz is calling…” Sachs’ email stated. “I am advising all the boys that if they say anything, it should be cannot confirm or deny – leave it at that.”
“Do you recognize this email?” Larson asked.
“I’m trying to see who started it,” Wagner said.
After Wagner oriented himself to its contents, Larson said, “Mr. Horowitz was a newspaper reporter.”
“Yes,” said Wagner.
“You were trying to keep this out of the press,” Larson said.
“Correct,” said Wagner. “There was some confidentiality involved here. We were dealing with the Judicial Commission.”
In some of his questions, Larson focused on the violations of confidentiality, the leaks of what was supposed to be confidential information that the board and the county’s lawyers were privy to and the atmosphere of distrust in the county at that time.
Larson inquired as to how much about the complaint to the Commission on Judicial Performance had been disclosed to the members of the board of supervisors in September of 2006. Wagner was unable to say precisely what they had been told.
“I can’t recall the detail, except that I may have referenced a judge in the first trial or the second trial,” Wagner said.
“You never gave a copy of complaint to the members of the board of supervisors,” Larson said. “Correct,” Wagner said.
“Mr. Biane, and others never saw the complaint.” said Larson.
“I was concerned about it being leaked,” Wagner said, adding that he was seeking to keep Lindley’s identity and the substance of the accusations from being exposed.
Larson asked about a leak of confidential information involving the board of supervisors and the county’s lawyers that occurred nearly a year before Wagner was brought in as county counsel. This involved a memo from two lawyers with the law firm of Munger Tolles & Olsen – Paul Watford and Steven Kristovich, who had been present at a March 25, 2005 meeting at Biane’s supervisor’s office in the Rancho Cucamonga Courthouse that involved Biane and Postmus as well as Burum and Dan Richards, who were present there with their lawyers Heidi Timken and Scott Sommer, as well as former California State Senator Jim Brulte. Also present was deputy county counsel Mitch Norton. After the lawyers for both sides provided their analysis of the then-recent tentative ruling by the 4th District Court of Appeal reestablishing that the county’s easements on the Colonies property remained intact, Postmus had the lawyers leave the room. In the ensuing one-sided forum in which he and Biane represented the county and Burum and Richards represented the Colonies Partners, with the back and forth between them being refereed by Brulte, who had been retained by the Colonies as a consultant, a tentative settlement was worked out involving the county handing over $22 million in cash and surplus flood control property in Rancho Cucamonga with an estimated value of $55.5 million – what was described as a $77.5 million deal. In the months and weeks ahead, that deal appeared to be headed for finalization, which prompted the Munger Tolles & Olsen firm to resign as the county’s lawyers in protest. In June 2005, a memo to the board of supervisors from Watford and Kristovich strongly urging the board not to adopt the settlement agreement was leaked and after accounts of what were in the memo appeared in the press, the deal fell through.
Larson asked Wagner “You knew about the leaked memo?”
Wagner said he had heard about it from “the newspaper, I think.”
Larson asked if Wagner knew that a “criminal investigation was pursued” over that breach of confidentiality.
“I have no idea,” responded Wagner.
“You were aware of the tentative settlement?” Larson asked.
“I was aware that became an issue and that settlement did not go forward,” Wagner said.
Larson then returned to the complaint to the Commission on Judicial Performance and the level of confidentiality Wagner was maintaining with regard to it. He asked about Wagner’s level of trust with regard to the “Fifth Floor,” i.e., the top floor of the county’s main administrative building in which the board of supervisors has its suite of offices. Larson suggested the “Fifth Floor” could not be trusted “not to leak the complaint.”
“Correct,” said Wagner.
“There was a lack of trust between the board and county counsel,” said Larson.
“I don’t know if there was a lack of trust of me,” said Wagner. “I tended to see it as a dysfunctional board of supervisors and a weak chief administrator.”
Wagner said that in such an atmosphere it grew common for those there to “bypass of the chain of command. People would be coming directly to me.”
“So, there was dysfunction, a lack of trust on both sides?” asked Larson.
“I can’t speak for the others, but I understand a lot of things got leaked,” said Wagner.
Larson then extracted from Wagner an acknowledgement that the board, or at least Postmus and Biane on its behalf, had seen the memo from Watford and Kristovich leaked to wreck the tentative settlement with the Colonies in 2005 and were upset about that, were experiencing resistance to the concept of settlement in 2006 from members of county counsel, and were distrustful of the county’s legal team all the way around. Larson asked about Jones Day, the firm that came in to replace Munger Tolles & Olsen after that firm resigned in 2005.
“There were difficulties with Jones Day, yes,” Wagner conceded. “I don’t think the board trusted Jones Day, for whatever reason.”
By late morning Monday, Larson had achieved his strategic goal with his cross examination of Wagner, which was to give the jury an alternative theory to that element of the prosecution’s narrative which holds that Postmus and Biane voted to support the settlement because they were extorted and bribed into doing so; rather, Larson’s questioning of Wagner suggested, the two leaders of the board had lost faith in the county’s lawyers and were ready to settle the matter because they did not believe continuing to litigate would have the positive outcome the county’s lawyers were predicting.
Upon the completion of Wagner’s testimony Monday afternoon, Hollis “Bud” Randles, who is now the assistant chief investigator for the San Bernardino County District Attorney’s Bureau of Investigation and who in 2008 served as the lead investigator into the circumstances around the settlement of the lawsuit with the Colonies Partners, took the witness stand. Indeed, it was Randles, in conjunction with the other investigators in the office, including Morey Weiss and Bob Schreiber, who unlocked the flood of detail with regard to what went on behind the settlement. They were initially able to do so because the key witness and informant in the matter, Adam Aleman, had worked himself into a circumstance while he was employed as assistant assessor under Bill Postmus in 2007 and 2008 in which he had engaged in multiple violations of the law, transgressions pertaining mostly to misuse of assessor’s office facilities, equipment and personnel for partisan political purposes. After Aleman was arrested and charged with these crimes, his attorney, Grover Porter, worked out a plea arrangement with the district attorney’s office in which he agreed to cooperate in providing information against others. While that cooperation initially pertained to the assessor’s office scandal, including the involvement of 13 political appointees to that office’s administrative division made following Postmus’ 2006 election as assessor together with the activity of Postmus himself, investigators’ interest was piqued by information Aleman had about the circumstances and events relating to the settlement of the lawsuit with the Colonies Partners, a scandal that in most of its respects preceded in time the scandal in the assessor’s office. Aleman provided investigators a blueprint to that first scandal, along with information that so completely implicated Postmus in crimes he committed as assessor and supervisor that it brought his political career to a close and resulted in criminal filings, and eventually convictions, against him. For the crimes in the assessor’s office, Postmus was criminally charged in June 2009. For the crimes that predated those, i.e., the ones stemming from his time as supervisor, he was charged in February 2010. Though he initially pleaded not guilty to both sets of charges, utilizing two different lawyers in those defenses, in March 2011 he folded entirely, entering guilty pleas to 14 felony charges covering both scandals, in so doing agreeing to turn states evidence. At that point, Randles and his fellow investigators went to work on him as well.
On Monday and Tuesday, California Supervising Deputy Attorney General Melissa Mandel marched Randles, a former Army paratrooper who fought in Vietnam and then worked for 22 years and seven months with the Los Angeles Police Department before retiring and taking a position with the district attorney’s office in San Bernardino County, through several major elements in the Colonies lawsuit settlement investigation.
Randles testified that the investigation of the Colonies lawsuit settlement evolved out of the investigation of the assessor’s office, which began in 2007. “August 2007 is when I started the investigation,” Randles said.
That investigation had its focus, he said, on allegations that “Bill Postmus was misusing public funds, computers and facilities” and that he was a “drug addict.” He said the investigation “expanded to include his assistant assessor, Adam Aleman” on reports that “he dad destroyed a county computer by prying the hard drive out” and that he had “falsified [assessor’s office] executive staff minutes and presented them to the grand jury.”
When did you first interview Adam Aleman in connection with the assessor’s offce?” Mandel asked.
“That would have been in March 2008,” said Randles.
Mandel asked Randles about when he next dealt with Aleman.
Randles said he next interviewed him after his arrest on November 1, 2008, at the point which Aleman had entered into a plea arrangement with the district attorney’s office. Mandel asked if that was when Randles “first heard about the circumstances underlying the Colonies case?”
“That is correct,” Randles said.
Mandel asked about the nature and scope of information Aleman was relating to investigators. “He was providing information on an ongoing basis about everything that was going on with a variety of individuals,” Randles said.
Mandel asked Randles if at that point he knew “anything about the Colonies case?”
“No, I had not,” said Randles.
She then asked if in conjunction with the Colonies matter, “Were you aware of any criminal activity?”
“Nothing but rumors,” Randles responded.
Mandel asked him if “prior to November 1, 2008 you had any knowledge about Bill Postmus, Paul Biane, Mark Kirk or Jim Erwin being paid $100,000 in connection with the Colonies settlement?”
“No,” said Randles.
“Prior to November 1, 2008 did you have information the $400,000 paid to the political action committees were actually payoffs to secure the Colonies settlement?” Mandel asked over objections by the defense.
“I had no information at that time or before the interview with Adam Aleman on November 1,” Randles said.
Randles said he had interviewed over 70 witnesses with regard to the case, many on multiple occasions.
Mandel sought to defuse previous suggestions by the defense that the district attorney’s office investigators and in particular the gruff and forward Randles had intimidated witnesses or in some fashion pressured them into providing what was essentially false information to prop up the prosecution’s theories relating to blackmail, extortion, graft and bribery being major factors in the board vote to ratify the lawsuit settlement. At the points when Aleman and Postmus were being interrogated by the investigators, they had signed plea agreements, pledging to cooperate with the prosecution.
Mandel asked Randles if attorneys accompanied Postmus to his interrogations. Randles testified that he believed Postmus had two attorneys with him during Randles’ first interrogation of the former supervisor and assessor, and had at least one lawyer with him during later sessions.
“At any point during your interviews of Mr. Postmus, did any of his attorneys object to the manner in which you were questioning him?” Mandel asked.
“Never,” responded Randles.
Likewise, Aleman was accompanied to his interrogations by his attorney or had access to one if he chose, Randles said. He said neither Postmus nor Aleman lodged any complaints over his treatment of them. He said all of the interrogations with Postmus and Aleman were recorded.
Mandel took up with Randles that element of the case touching upon extortion, which is no longer a charge against the defendants. Nevertheless, extortion in the form of blackmail remains as an intrinsic element of the narrative in the remaining case against three of the defendants, directly so against Burum and Erwin, who are alleged to have engaged in it, and indirectly against Biane, who is alleged to have been victimized by it and thus driven to support the settlement, after which, according to the prosecution, he was bribed.
Aleman testified about “hit piece” mailers created by Burum and Erwin that were in Erwin’s possession in “mockup” form, either on his computer at the sheriff’s deputies union office or printed out, which definitely, he testified, referenced Biane’s financial difficulties. He was less clear, indeed somewhat contradictory, with regard to the mailers pertaining to Postmus, which were to be mailed to voters detailing either or both his homosexuality and/or drug use. The mailers were used to threaten Postmus, then the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Central Committee, and Biane, then the vice chairman of the board of supervisors and the vice chairman of the San Bernardino County Republican Central Committee, according to prosecutors, and ultimately withheld. No version of the mailers in any form has been produced at trial.
To Mandel’s inquiry on the mailers, Randles testified that over two years had elapsed from the time Aleman claimed to have seen them at Erwin’s office in the fall of 2006 and when Aleman told Randles about them during one of his interrogations in November 2008 and that he and his investigators had not aggressively followed up on that to obtain the mailers, the mockups or the digital versions of them.
“We didn’t know if it was specifically a laptop or a desktop,” Randles said. “It could have been either, and, as a unit, we discussed it and came to the decision it would not have been productive.”
Randles did, however say that Postmus had given indication, during Randles’ March 1, 2011 interrogation of him, that Burum during a phone conversation prior to the vote to settle the lawsuit had made reference to Postmus’ homosexuality in a way that Postmus said “freaked him out.” Randles said Postmus said Burum mentioned a “rumor” that Postmus was homosexual and engaged in a relationship with Greg Eyler, who was one of the political appointees hired into the assessor’s office in 2007 after Postmus was elected assessor and after the settlement was in place. Aleman testified that Postmus and Eyler had been boyfriends.
Randles testified that Postmus during the March 1, 2011 interrogation said he had “laughed off” Burum’s remarks, but recognized Burum was “sending him a message.”
On Wednesday morning, Mandel was prepared to play excerpts from an audio recording of an ambush interrogation that Randles, armed with information provided to him by Aleman as well as information gleaned from his follow-up investigation, had carried out with Mark Kirk, Gary Ovitt’s chief of staff, on April 21, 2009, the same day that investigators had likewise drygulched Biane’s chief of staff, Matt Brown. Outside the presence of the two juries hearing the case – one set to adjudge the guilt or innocence of Erwin and the other to decide the fate of Burum, Biane and Kirk – there was much discussion before Judge Michael Smith late Tuesday afternoon with regard to the recording, during which a rare disagreement among the defense attorneys manifested. Kirk and his attorney, Peter Scalisi, objected to the introduction of the interview as evidence altogether. Larson likewise objected to the playing of the recording. But in response to Mandel’s insistence that statements to be heard in the interrogation session are both admissible and relevant, Larson said he objected to those elements of the recording in which Kirk made statements implicating Burum. Based on Burum’s Sixth Amendment right to confront any of his accusers and the presumption that Kirk will stand on his Fifth Amendment right to not testify, Larson sought to exclude the inculpatory statements relating to his client. Scalisi reiterated his opposition to playing the recording altogether, but said that if the recording was to be played, he and his client wanted it played in its entirety to demonstrate the full context of Kirk’s statements. Ultimately, Judge Michael Smith ruled that only portions of the tape would be played. Wednesday morning, however, Scalisi had taken ill and was not present to represent Kirk. A decision was made to suspend direct examination of Randles at that point with the proviso that direct examination of Randles will resume for the purpose of playing the recording of the Kirk interrogation after Scalisi’s return. With Kirk’s assent and the assent of Burum, Kirk was represented during Wednesday’s proceedings by Jennifer Keller, one of Burum’s attorneys.
As Burum’s lead attorney, Larson sought, and after much back and forth with Judge Smith, obtained, permission to question Randles with regard not just on the areas covered in his investigation but those elements not investigated by Randles or his team which Larson said should have logically been areas of inquiry for the investigators. Smith initially denied Larson that latitude, asserting that it would very likely open the door to a variety of issues being delved into by both the prosecution and the defense on redirect and recross examination that would lengthen even more an already lengthy trial. In a remonstration that moved beyond the bounds of his normally refined bearing which carried into the province of testing the normally-calm Judge Smith’s judicial forbearance, Larson in the throes of his fervor advanced closely toward the bench as Judge Smith, still maintaining a posture of resistance to opening the field of cross examination beyond those issues which strictly defined had been mentioned in direct examination, restated his denial of the request. Larson, at that point pacing in front of the bench, uttered phraseology to the effect that he wanted to make a very limited inquiry with this witness to controvert what was tantamount to the exposition of false evidence and testimony knowingly put on by the prosecution. Only then did Judge Smith relent, saying he would allow Larson to make a limited inquiry into the matter, while remarking that he hoped they would not soon be looking back upon his decision as one rendering the trial even more interminable than it already is.
Larson used the opportunity to question Randles with regard to the role his failure to ascertain the exact whereabouts of supervisor Josie Gonzales in mid Seotember 2005 and the exact whereabouts of Jeff Burum in mid-November 2006 played in Gonzales’ March testimony before the two juries.
In what came across at the time as the most dramatic and damning testimony against Burum to that point in the trial, under direct examination by Supervising San Bernardino County Deputy District Attorney Lewis Cope, Gonzales testified that while she was on a trade mission to China in September 2005 she encountered Jim Brulte in a lounge on the ground floor of the White Swan Hotel in Zhengzhou. Brulte invited her to go out to dinner with him and Burum, saying there was a limousine waiting to whisk them away for a night on the town, Gonzales testified, and she said that she could see Burum, both directly and in profile as he changed positions, some distance away in the hotel lobby. Gonzales testified she gave Brulte indication she would go with them, but she felt it would be improper for her to dine and go out with either or both men, as Brulte was working as a consultant for the Colonies Partners and the litigation Burum and the Colonies Partners had brought against the county was still pending. She feared as well, she testified, that Brulte and Burum might succeed in getting her intoxicated and placed into a compromising position. She slipped away using a pretext and went up to her hotel room where, she said, she remained for most of the next two days, ducking both Brulte and Burum, relying on room service, until the San Bernardino County delegation she was with departed Zhengzhou.
There was incontrovertible evidence, however, that Gonzales was not in China in 2005. Rather it appears, she conflated the 2005 China Trip, which she did not attend, with another trade mission to China in November 2006, in which she participated. Equally incontrovertible evidence placed Burum in China during the September 2005 trip and in the United States during November 2006.
On Wednesday, during his cross examination of Randles, Larson established that the trade mission to China attended by San Bernardino County officials in 2006 took place between November 11 and November 19. Partially re-covering ground explored by Mandel on direct examination, Larson established that Randles had obtained search warrants for Burum’s American Express credit card billings for 2006. He then used the court’s overhead visual projector to display on screens positioned all around the courtroom charges against that card for the month of November 2006, one for $68.24 for fuel at the Mobil gas station in Rancho Cucamonga on November 10; one for $866.42 for apparel and accessories at Madison’s in Palm Springs on November 10; one for $1,861.43 for lodging at the Parker Meridian Hotel in Palm Springs on November 12; another for 1,028.36 for lodging at the Parker Meridian Hotel in Palm Springs on November 12; and a charge of $57.48 for fuel at the Chevron station in Rancho Cucamonga on November 13.
Larson asked Randles if he was aware that Burum was in Palm Springs November 11 through November 13, 2006 to attend the wedding of his business partner Dan Richard’s daughter.
Randles said he was not.
Larson asked if Randles had obtained copies of Burum’s credit card charges during that period.
“I believe an investigation was done and a search warrant was served for an American Express card,” Randles said. “Documents were received pursuant to a search. Those are the documents I received, yes sir.”
“But you did not do a follow up to determine what happened at that time?” Larson asked.
“No, I did not,” Randles said.
Larson took aim at Randles’ testimony on direct examination by Mandel as well as in his 2011 grand jury testimony with regard to the inception of the Colonies lawsuit settlement investigation and his general knowledge of the players involved.
Referencing Randles’ 2011 grand jury testimony, Larson asked, “You told that grand jury in 2011 that before November 1, 2008, you did not know who Jeff Burum was, correct?” Larson asked.
“That’s what I said, yes,” Randles responded, qualifying that by saying he was conscious of who Burum was only by name and that he was involved in the Colonies Partners.
Larson then focused upon an August 4, 2008 interrogation Randles and his investigator colleague Morey Weiss carried out with former sheriff’s deputy Bob Smith, who had worked for Postmus as a field representative. In that interrogation, Weiss said, “We realize Mr. Postmus has probably stepped into it with both feet more than once. We have got a lot of information coming in, bribes and what promises are being made, quid pro quos. So what we want to do now is we want to get the facts as they relate to Bill Postmus: where the money is coming in from, who it is coming from, what promises are being made, quid pro quos, flat out bribes, whatever the case is.”
Randles then says, “The Colonies suit that Jeff Burum was involved in, a lawsuit that they had against the county. The county paid out more than one hundred million for it. Are you familiar with…”
Smith interrupts Randles to say, “Not a clue.”
Randles continues to talk over Smith’s response, “…the decision and the fact that over legal advice, Mr. Postmus, being one of the supervisors, made the decision to pay this exorbitant amount to the Colonies in this suit in order to settle? This was against the advice of legal counsel. In fact there were two different firms out of L.A. that were involved in advising them that they could have prevailed in court, and if they had not prevailed in court, the amount they paid was way over what the judgment could have been.”
This, Larson suggested controverted Randles’ testimony under direct examination that he had not known about criminal allegations related to the Colonies settlement until Aleman brought it up on November 1 as well as his testimony before the grand jury that he did not know who Burum was.
“I was aware of some of the issues around the case,” Randles conceded.
Randles sought to deflect the suggestion that he had attempted to hide that a full blown investigation of the Colonies Lawsuit settlement was ongoing prior to the revelations Aleman provided. “The information that had come to me was that Mr. Postmus was taking bribes from developers,” he said, later clarifying under cross examination by Erwin’s attorney Raj Maline that the developer referenced in a We-Tip report about those accusations was not Burum.
At one point in the interrogation of Smith, Randles referred to the investigators as “elephant hunters.” While Larson suggested this implied he was going after Burum, who in other contexts, including the prosecution of former Rancho Cucamonga City Councilman Rex Gutierrez, was referred to as “the big fish,” Randles indicated the reference was to “big game” such as Postmus, who was the head of the Republican Party, i.e., an elephant, and, as a politician, higher up on the food chain than a developer.
Larson took issue with the investigation Randles had carried out into a paper message and a rat trap left on Aleman’s doorstep in 2010. The message read, “Have A Nice Life CI (Rat).”
A few months before, when criminal charges had been filed against Postmus and Erwin with regard to the Colonies lawsuit settlement, the information accompanying the filing had made reference to a “CI,” an acronym for a confidential informant. An analysis of the information provided by the informant and other particulars would support the conclusion, which later proved to be true, that Aleman was the confidential informant.
When Larson asked about the investigation, Randles said it had reached a dead-end. He had instructed Aleman not to handle the items when Aleman called to report finding them, Randles said, but Aleman had already done so. Randles said the note was tested four times for fingerprints by the sheriff’s department’s scientific investigations division, but that turned up only Aleman’s fingerprints and some smears.
Referencing that Aleman had pled guilty to falsifying and destroying evidence, Larson asked, “It never crossed your mind that maybe Mr. Aleman had put this document together to obstruct an investigation or submit false claims?”
Randles said the investigators considered that but had nothing to establish that is what occurred.
Moving close to five years after the City of San Bernardino filed for Chapter 9 protection, it has at last fully emerged from bankruptcy, having done so by stepping out from under slightly more than $350 million in debt, leaving in its wake scores of stiffed creditors, vendors and investors, as well as claimants and successful litigants who prevailed against the city in court but who will now have nothing – or next to nothing – to show for it.
San Bernardino made the Chapter 9 filing in August 2012 after years of dwindling revenues, expenditures drastically exceeding income, and deteriorating financial numbers that resulted in $80 million in unfunded liabilities and a $49 million annual operating deficit. Chapter 9 of the United States Bankruptcy Code provides a financially distressed entity such as a municipality protection from its creditors while it develops and negotiates a plan for adjusting its debts.
According to Andy Belknap of the firm Management Partner, Inc., which assisted the city in its sojourn through and now out of bankruptcy, “The original Plan of Adjustment approved by the city council in April 2015 has been largely implemented in the last 22 months.”
A force that drove the city into financial distress was its commitments to employees in terms of salaries and pensions. While initially city officials had hoped the bankruptcy process could result in the city successfully negotiating those commitments downward by drastically lowering salaries and pensions, that did not for the most part occur. There was early on a struggle of will between city officials and CalPERS, the California Public Employees Retirement System. In the first year after the filing was made, the city withheld more than $14 million owed to the state pension system. By the 14th month after the filing, that arrearage had grown to over $16 million. Efforts to force CalPERS to accept that the city was not in a position to continue to lay out millions and millions of dollars, escalating at a double digit rate annually, to pay for employees no longer working for the city failed when CalPERS proved every bit as intransigent as the city and spent in excess of $7 million on attorneys fighting the city in bankruptcy court over the issue. As a consequence, CalPERS proved to be the entity that forged the best deal with the city. In May 2014, the city paid $1.5 million to CalPERS as a down payment toward erasing its debt with the pension fund, and agreed to pay nearly $600,000 a month for the two years between July 2014 and June 2016, as well as committing to shell out five annual payments of $400,000 to cover interest and late payment penalty assessments and fines.
Among the city’s creditors that did not fare as well were Luxembourg-based EEPK, holders of the city’s pension bonds, and Ambac Assurance Corp, which indemnified some of those bonds. When the city failed to provide them with the same terms of repayment as CalPERS, they sued, asserting the bonds and whatever fees are associated with them fall under the same pension obligation as the payments to CalPERS. That lawsuit was settled in March 2016 on the basis of an agreement by which the city is to pay not 100 percent but rather 40 percent of what is owed to EEPK and Ambac.
One class of creditors who were really stiffed were litigants and claimants against the city, including ones who had prevailed in certain lawsuits, among them those alleging they had endured civil rights violations relating to excessive use of force by the police department. Those entities and the lawyers representing them will get just a penny on the dollar for the first $1 million in judgments against the city.
City employees and retirees did relatively well under the plan, which preserves pension benefits for current and former workers, though current employees will be called upon to make a greater contribution toward those pension plans, and some benefits were reduced or modified. Employees will have to contribute more to their pension plans and the same level of benefits given to employees in the past will not be available for new employees.
A majority of the city’s creditors agreed to the plan, though some stragglers have refused to compromise or are otherwise insisting that the pittance the city has offered does not truly qualify as a compromise. But on February 7, 2017 U.S. Bankruptcy Judge Meredith Jury signed the city’s confirmation order and agreed with the city’s requested third party injunction, preventing any remaining disputed claims from interrupting the bankruptcy exit.
Belknap gave a report to the city council Wednesday night hailing the exit.
“Per the order confirming the city’s third amended plan of adjustment and the plan itself, the city was required to meet a number of conditions prior to the effective date of… the city’s subsequent exit from bankruptcy,” Belknap said. “The plan conditions having been met, the city’s effective date occurred on June 15th. A notice of the occurrence of the effective date will be sent to all city creditors and parties in interest.
As expected, some civil litigants have appealed, but those appeals have not prevented the city from moving forward on implementing the plan.”
Belknap said, “Following the occurrence of the plan’s effective date, the city began making the payments due under the plan, which were budgeted for payment under the bankruptcy fund.”
Along the way, the city last year dissolved it 137-year old municipal fire department, placing the entirety of the city in a county fire service protection zone that imposes a $143 per parcel per year assessment on residents. The city also outsourced its refuse hauling division to a private company, Burrtec Industries.
Belknap said the city had spent $25,193,340 on professional services relating to its bankruptcy filing, the lion’s share of which went to the law firm of Stradling Yocca Carlson & Rauth, which represented the city in bankruptcy court and billed the city $19,470,878 for doing so. Urban Futures, Inc. was paid $2,327,665 for bankruptcy related services, including refinancing loans and bond financing and managing the disposition of various municipal assets. Belknap’s firm, Management Partners Inc., received $1,466,190. Other providers of services relating to the bankruptcy were Bartel Associates, LLC, which was paid $214,050; Bienert Miller & Katzman PLC; which was paid $441,340; the Law Office of Linda Daube, which was paid $644,317; Rust Omni, which was paid $284,646; and McDermott Will and Emery, which was paid $283,103.
“Bankruptcy was extremely painful for city employees, retirees and creditors, who absorbed financial losses,” said Belknap. The city’s plan provides at least $350 million in one-time and ongoing expenditure savings, plus increased revenue and cost restructuring over a 20-year period. The city has a solid plan for rebuilding municipal service delivery and a governance structure that can support efficiency and effectiveness.”
The old bugaboo of pensions continues to bedevil the city, Belknap said.
“In late December, 2016 CalPERS voted to drop its investment earnings assumption from 7.5% to 7% over three years, which adversely impacts the city’s plan. The fiscal model will be updated based on adopted 2017-18 budget and latest CalPERS actuarial.”
With San Bernardino’s reputation for reliability and its good name shattered, Belknap said, there is a positive side to all this.
“The city is now in a position to carefully improve service levels, particularly for police and infrastructure maintenance,” Belknap said. “The city’s fiscal situation is much better but the budget and fiscal model must be monitored carefully. The city’s original plan of adjustment has generally worked as designed, except for the CalPERS sub-par investment earnings, which have been a constant challenge, but the city plan reduced employee count, which is the best mitigation.
Belknap said, “Like other cities, the city still must discuss cost containment and cost recovery options to fully or adequately fund services. Now that city is out of bankruptcy and has reformed its manner of governance, it has opportunity to move forward.”
With the dawning of summer, a retired United States Forest Service biologist this week called upon the Forest Service to significantly reduce the amount of water Nestlé is drawing from Strawberry Canyon, based upon data indicating the San Bernardino Mountains are not bouncing back from the five year-running drought that began in 2011.
“Even with good winter moisture this winter in the Strawberry/East Twin Creek Watershed, Tuesday and yesterday at 5:30 p.m. the stream gauge at the bottom of the watershed recorded the lowest streamflows recorded in 95 years,” said Steve Loe on Thursday June 22. “At .23 cubic feet per second, this is almost half of the lowest previously recorded.”
Loe, now retired from the Forest Service and living in Yucaipa, was a biologist assigned to the San Bernardino Forest for more than three decades.
Nestlé bottles water drawn from Strawberry Canyon under the Arrowhead brand name. Nestlé acquired the water extracting system from Perrier in 1992. The permits for the water extraction system, consisting of borings, horizontal wells, tunnels, pipelines and other appurtenances, expired in 1987. Perrier and Nestlé maintained their operations in Strawberry Canyon by continuing to pay a $524 annual fee while the Forest Service delayed carrying out the environmental review for the renewal of the permits. Nestlé’s activity, which was never favored by environmentalists, came under increasing fire as the statewide drought, which first manifested in 2011, advanced. Only in 2015, after the Center for Biological Diversity, the Story of Stuff Project and The Courage Campaign were gearing up to file a lawsuit claiming the Forest Service had violated protocols and harmed the ecology of the mountain by allowing Nestlé Waters North America to continue its operations in Strawberry Canyon for 28 years after its permit expired, did the Forest Service move to make that environmental review. In the meantime, Nestlé has continued its water extraction, pumping an average of 35.7 million gallons of water annually from the San Bernardino Mountains in 2015 and 2016, while the Forest Service study is ongoing. That study has not been completed after nearly two years.
“We had hoped that the good winter would make this summer better than the last four to five years with such low flows,” said Loe. “This is terrible and the species that require water are under severe stress. Something must be done besides continuing to remove as much water as possible from the headwaters for bottling. We should ask the Forest Service and Nestlé to immediately do something positive to help the wildlife and plants that are being so adversely affected by the continuing drought this summer.”
According to Loe, the available water in the San Bernardino Mountains should be utilized to maintain the naturally existing species and habitats there before it is diverted to human consumption elsewhere.
“The water could be taken at the bottom of the mountain, instead of in the headwaters, which adversely impacts the entire stream,” Loe said. “Wildlife drinkers could be quickly installed, at low cost, along the water pipeline to provide drinking water for these animals that need drinking water. The reaches of the stream that are believed to have reduced flows from the wells and water removal could be augmented with irrigation as was done on the Metropolitan Water District Arrowhead Tunnel Project. This would be much less costly in this case because the water is available along the entire pipeline and would not have to be hauled in or pumped. It is wrong to do nothing until all the studies are done. We know the drought is real. We know the groundwater has been severely depleted by the drought. We know that all streams in Southern California are experiencing severe drought effects. Doing nothing but study is not the Forest Service standard for resource protection.”
Nestlé Waters North America is a division of the Swiss-owned Nestlé Corporation. Loe said it is particularly galling that a foreign company is reaping a profit by perpetuating ecological damage within the publicly-owned forest.
“Nestlé has threatened the Forest Service and it is very powerful politically,” Loe said. “Nestlé has hired top level ex-Forest Service and Department of Agriculture employees and agency heads. We do not know the full extent of the pressure that the Forest Service is under politically, but it must be great. In effect, Nestlé, a foreign, multinational corporation, has hijacked the publicly-owned water resource on National Forest public land. They are getting the water before it is able to provide public and environmental benefits. They are basically getting the water for free and have threatened to sue the Forest Service if it tried to regulate the company’s water taking.”
Loe continued, “Nestlé’s permit has long-expired and the Forest Service, agencies and public have never negotiated the new permit since Nestlé bought the permit 25 years ago. The change of ownership was supposed to trigger new permit requirements to protect the environment. This should have been done, but Nestlé was politically strong enough to prevent it. It is only the strong public outcry and support of the National Forest that gave the Forest Service the strength to stand up, demand studies and propose changes to the permit.”
“With the current political desire to put America first, we should go to our senators, representatives, and our president and ask them to intervene to protect our public trust resources,” Loe said. “We should do the same with our state legislators and governor to intervene to protect state public water resources. The Forest Service and State of California have the legal right to control the taking of water and protect the public trust resources. They need our support and encouragement to stand up to Nestlé. Until the studies are complete and streamflows return to pre-drought conditions, water taking must be curtailed or we will further severely impact our public resources. Some species that must have water have already been eliminated from the watershed, and habitat for remaining species is being severely impacted during this drought.”
Nestlé maintains it has faithfully paid the U.S. Forest Service the annual permitting fee of $524 to keep water flowing through its pipeline, that it has the established right to continue to use the water, has been in compliance with all regulations relating to its operation and that it is acting now and has always acted in an environmentally sensitive and responsible manner.
In an uncommon move, the Chino Hills City Council last week selected an election map for its city that was drawn up by a city resident rather than the demographic analysis company it hired to draw voting districts.
Chino Hills, the 79,492-population municipality at the extreme southwestern corner of San Bernardino County, like more than two dozen cities in Southern California over the last three years, was stampeded into ending its traditional at-large voting system and adopting a ward electoral system. In San Bernardino County, the cities of Highland, Upland, Chino, and Rancho Cucamonga before it were cozened into adopting ward systems under the terms of the California Voting Rights Act. Concurrently, Redlands and Yucaipa are making the same changeover.
The California Voter Rights Act confers upon plaintiffs using it to allege what is termed racially-polarized voting a significant advantage, such that even if the challenge does not succeed, a plaintiff is not required to pay the prevailing city’s legal fees. Conversely, a city which fails to vindicate itself in the face of such a challenge must pay the legal fees of the prevailing party.
Because a handful of California cities that resisted challenges made to their election systems under the California Voting Rights Act were unsuccessful in their legal defenses and were forced by the courts to pay substantial amounts to cover those legal fees, most of the cities in San Bernardino County hit with such a demand have made a show of compliance.
A first test case in San Bernardino County was made against the City of Highland, when that city was served with a demand that it alter the way it elects its council members. The lawsuit was filed July 18, 2014 in San Bernardino Superior Court by a Lancaster-based lawyer, R. Rex Parris, in conjunction with the Malibu-based law firm Shenkman & Hughes and the Los Angeles-based Law Office of Milton C. Grimes on behalf of Lisa Garrett, a Latina resident of Highland. In response, the city rushed to put an initiative on the November 2014 ballot, Measure T, asking if the city’s residents were in favor of a ward system. Measure T went down to defeat, with 2,862 votes or 43.01 percent in favor and 3,793, or 56.99 percent opposed. The lawsuit proceeded and the city sought to assuage the demand by proposing to allow cumulative voting, in which each voter is given one vote for each contested position and is allowed to cast any or all of those votes for any one candidate, or spread the votes among the candidates. When the matter went to trial, despite making a finding that the socio-economic based rationale presented by the plaintiff’s attorneys to support the need for ward elections was irrelevant and that the plaintiff’s assertion that district voting was the only way to cure the alleged violation of the Voting Rights Act was false, San Bernardino Superior Court Judge David Cohn mandated that Highland adopt a ward system.
In December 2015 Kevin Shenkman, using the letterhead of his firm, Shenkman & Hughes, sent boilerplate letters to the cities of Chino, Upland and Rancho Cucamonga, among nearly a dozen others in Southern California, asserting the cities “relie[d] upon at-large election system[s] for electing candidates to [their] city council[s]” and charged that “voting within [those cities] is racially polarized, resulting in minority vote dilution, and therefore [those cities’] at large elections are violative of the California Voting Rights Act of 2001. It is our belief [those cities’] at-large system[s] dilute the ability of minority residents – particularly Latinos (a “protected class”) – to elect candidates of their choice or otherwise influence the outcome of [those cities’] council elections.” In those letters, Shenkman, referencing his firm’s success in prosecuting just such a case against the City of Palmdale, threatened to sue the cities “on behalf of residents” if those cities’ at-large council systems were not replaced by ones based on district representation.
Chino responded by having its council pass a resolution on a vote of 4-0, invoking by fiat a by-district election system that was in place for the November 2016 election.
In a highly controversial move that was widely perceived as acceding to extortion, the Upland City Council agreed to draw up the plans for a ward system that the voters could consider. It further agreed to pay Shenkman $45,000 in return for Shenkman holding off on filing the suit against the city. The city council then instituted a ward system in Upland on its own authority.
In Rancho Cucamonga, a city with a population of 165,269, where voters had on five occasions elected Latinos to the city council, officials there likewise capitulated to Shenkman’s threats and the city council followed city attorney James Markman’s advice to have an electoral ward map featuring four districts of roughly 41,317 residents each drawn up, which was submitted to the city’s voters in November. The measure codifying that map was approved by the city’s voters by a 63.77 percent to 36.33 percent margin.
The city of Yucaipa, while not yet the subject of a demand that it adopt a ward system, a year ago hired a consultant, the National Demographics Corporation, to review establishing voting districts for electing city council members and to draft district election map options. The city council in June adopted one of those maps featuring five wards. The council said it did so to head off any potential future litigation based upon the California Voter Rights Act.
The Redlands City Council, which on its own initiative in May 2016 began looking into converting to a council ward system, was likewise threatened by the Mexican American Legal Defense and Educational Fund in August with legal action if it did not move immediately to put such a system in place. On August 16, the city council held a specially-called meeting at which it somewhat obsequiously approved a resolution establishing the criteria for five voting districts. In March, the city council selected a final draft district boundary map to be used in future district-based elections which puts Councilman Eddie Tejeda in District 1, councilman Paul Barich in District 2, Councilwoman Pat Gilbreath in District 4, with mayor Paul Foster and councilman Jon Harrison in District 5. No current member of the council resides in what is to be District 3.
On August 9, 2016 the Mexican American Legal Defense and Educational Fund, known by its acronym MALDEF, sent a letter to the Chino Hills City Council informing that body’s members that unspecified Hispanic residents of Chino Hills have complained of polarized voting in the community. MALDEF’s attorney, Matthew Barragan made the demand despite the current and historical presence of Latinos upon the Chino Hills City Council, while maintaining the at-large election system in Chino Hills that existed since the city’s 1991 inception interferes with Latino voters electing candidates that they favor. Barragan called upon the city council to adopt a resolution converting Chino Hills’ election process into one involving wards, threatening forthcoming legal action.
At its September 27 meeting, the Chino Hills City Council entered into a $31,000 contract with National Demographics Corporation to assist the city with evaluating the California Voting Rights Act requirements and voter districting options. At its November 22 meeting, the Chino Hills City Council assented to moving the city toward a district-based system by the next election cycle.
National Demographics Corporation, which has contracts with scores of California cities for similar work, has been roundly criticized for formulating voting maps which were drawn up in such a way that they conferred upon incumbents an advantage, that is, district maps which placed incumbents alone in creatively drawn districts such that they would not need vie against one another for reelection. Having set the change in motion, the Mexican American Legal Defense Fund did not participate in the map derivation effort.
In April, National Demographics Corporation offered up four maps which divide the city into five districts. Four other maps, including one drawn by residents Brian Johsz and Richard Austin, another drafted by Jim Gallagher and another assembled by resident Luis Esparza, were also presented. Despite paying National Demographics Corporation over $30,000 for its work, the city council last week selected the map drawn up by Johsz and Austin. One of the maps, referred to as Map 4, which was drafted by National Demographics, would have conferred an outright advantage on the incumbents by placing all of them in different districts, such that they would not stand for reelection against one another. The Johsz/Austin map places three of the current council members in a district by themselves; two of the incumbents reside in the same district.
The Johsz and Austin map provides for five irregularly-shaped districts. District One is bordered to the west and northwest by the Diamond Bar city limits, on the lower west by the Orange County border, on the southwest side by Soquel Canyon Road, by Woodview Road progressing east, then by Bayberry Drive; the district is separated along a widely separated sawtooth progression along the northern border of District Five and the border then heads along a mostly northwest tangent along its border with District Three, followed by its border with District Two and then bending by first heading southeasterly along Carbon Canyon Road and turning north at Western Hills Golf Course and Country Club, running to Eucalyptus Avenue from whence it moves northeasterly until somewhat west of Veterans Park; its border then progresses northwesterly once more and loops to run along Chino Hills Parkway northwest until Grand Avenue, which serves as the district’s south border at that point, then goes in an irregular winding direction northward along Monteverde Drive before meeting La Sierra Drive which borders it to the south and east until Chino Avenue, which at that portion of District One forms its southlying border all the way to the Corona Expressway/Highway 71 and the city limits the freeway represents, moving northeasterly until reaching the Los Angeles County border to the north and then meeting the Los Angeles County border on the extreme west side of the city before meeting the Diamond Bar City Limits.
District Two is bordered by Chino Avenue and District 1 to the north, the Corona Expressway [71 Freeway] and city limits to the east, Eucalyptus Avenue to the south on its east side, along Morningfield Drive to Champion Street running southwest to Manor Court and Rustic Drive going south, then Carbon Canyon Road all the way to Carbon Lane as the district border heads at that point north, at which point the western border of District Two continues generally northward at a point slightly west of Carbon Lane and then crosses east of Carbon Lane until Eucalyptus Avenue. The border then follows Eucalyptus Avenue north and bends northeast by east and heads north just east of Ridgeview Drive before looping to become coterminous with Windmill Creek Road all the way to Grand Avenue, which serves as its north border with District 1, beyond which it cuts northwest to meet first Valley View Drive and then Monteverde Drive before conjoining with La Sierra Drive until reaching Chino Avenue.
District Three is bordered by Eucalyptus Avenue at its north, the Corona Expressway/Highway 71 to the east, with its boundary jogging eastward at Chino Hills Parkway and then becoming Ramona Avenue/city limits to the east at that point, then heading west in a line parallel to and just south of Circle Park Lane over to and then along Club House Way. From there the district runs south along Pipeline Avenue to Valley Vista Drive and the border from there undulating westward to just east of Peyton Drive and then along a line parallel and slightly east of Peyton Drive to Woodview Road. The southern border of District Three then runs westward where it is slightly south of Oakcreek Road and then heads across the rolling hills until meeting Old Carbon Canyon Road, which it then follows to Carbon Canyon Road before becoming Rustic Drive, then Champion Avenue, then Monrningfield Drive and connecting with Eucalyptus Avenue.
District Four is bordered by Chino Hills Parkway to the north then by the city limits slightly east of Monte Vista Avenue, with the border then moving east of Fairfield Road until reaching the city limits, which become coterminous with Chino Creek all the way to Pine Avenue, which forms the southern border of District Four. The border runs westward along Pine Avenue, crossing the 71 Freeway to Butterfield Ranch Road and then moves northerly at first along Butterfield Ranch Road and then along a tangent slightly east of Butterfield Ranch Road until heading westward along looping and meandering Soquel Canyon Parkway to Pipeline Avenue, which forms the western border of the district. Club House Way then forms the district’s north border on the west side, with the district line then running eastward slightly south of Circle Park Lane to head north along Ramona Avenue until meeting Chino Hills Parkway.
Landwise, District Five is the largest voting ward in city and, thus, the least densely populated, lying at the extreme south end of the city and San Bernardino County. District 5 borders Orange County on the west up to Soquel Canyon Road where it goes east to Old Woodview Rd. The line then goes north along Peyton Dr. up to Valley Vista Road where it goes east until Pipeline Avenue. It goes south to Soquel Canyon Parkway and then goes east until it meets Butterfield Ranch Road. From there it travels south and turns east along Pine Avenue. Traveling east along Pine Avenue it turns south along State Route 71 until it hits the Riverside County line. The district completely boarders Corona on the south from that point on.
Johsz was reluctant to take credit for the map. “The map that we worked on simply took a National Demographics Corporation map and made a few simple changes, the biggest change being the placement of all of the Butterfield Ranch neighborhood in one district by placing the district line between 4 and 5 at Pine Avenue,” Johsz said. “National Demographics Corporation certainly laid the groundwork for the map that was chosen.”
Johsz said, “In college I had classes on some of the fundamentals about districting, “one person, one vote” etc. So I understood the basics of what should be viable and acceptable under the California Voter Rights Act.”
Johsz said, “The city had asked for input and suggestions from the public on how they thought the lines should be drawn. Other residents also made suggestions. The city was very open to hearing input from residents and showing what the potential districts could look like.”
Johsz said the current makeup of the council and the preferences the voters have shown in the past were a consideration in approaching the creation of the map, but not an overriding one.
“I know where the current council members reside,” Johsz said. “The topic of having them drawn into the same district was addressed a few times at the council meetings. We wanted to avoid putting any of them together. However, two will be in District 5 together, but one will not be seeking reelection.”
Luis Esparza questioned the wisdom of placing the Butterfield Ranch District into two wards and he went on record as saying the city council should not be the body ultimately deciding the lay of the districts, given the contour of those districts may have an impact on their future electability. -Mark Gutglueck
By Count Friedrich von Olsen
For those of you who may or may not have been paying attention, the City of San Bernardino has at last structured its way out of bankruptcy almost five years after filing for Chapter 9 protection. It was able to do this by saving $350 million through the bankruptcy process. One might ask: How did this work? It worked this way: a whole bunch of the city’ creditors, vendors, investors and bondholders, people who in good faith worked for the city or provided goods and materials, got stiffed. Some were stiffed more than others. Some got 50 cents on the dollar of what they were owed. A significant number were provided 40 percent. Some were given one percent. Yes, one percent, one penny on the dollar. This included individuals injured by the city who filed suit and attained judgments against the city in a court of law. Others who lost a whole lot of money were the purchasers of certain types of securities that were backed by what was formerly the city’s good name. Did I fail to mention that many of those who will get paid won’t be paid in full for 20 years?
This foray into Chapter 9 and not paying people what they are owed, but apparently owed no more, was expensive. How expensive? Let’s see: $25,193,340 and counting. That is how much the city is paying or scheduled to pay various consultants in the bankruptcy assistance business who lent – well not exactly lent but sold – San Bernardino a hand. Bartel Associates, LLC was paid $214,050; Bienert Miller & Katzman PLC took in $441,340; The Law Office of Linda Daube received $644,317; Management Partners Inc. got off with $1,466,190; Rust Omni pulled down $284,646; Stradling Yocca Carlson & Rauth hit the jackpot for $19,470,878; Urban Futures, Inc. did alright for itself at $2,327,665; and McDermott Will and Emery cashed in for $283,103. Cha-Ching!
Is it too late for me to sign on as a consultant with San Bernardino? I’ll work for free! I have a plan to save the city not just $350 million but $374,941,406.60. Here is how I propose to do it: The city will merely add Bartel Associates, Bienert Miller & Katzman, Linda Daube, Management Partners, Rust Omni, Stradling Yocca Carlson & Rauth, Urban Futures, and McDermott Will and Emery to the list of creditors to get stiffed, at, let’s say, the aforementioned generous once cent on the dollar rate. That means that instead of paying out the full $25,193,340 in bankruptcy assistance consulting fees these guys and gals say they are due, the city will lay out $251,933.40, a further net savings of $24,941,406.60. I am sure that if it is explained to them that they need to make this demonstration of cooperation to ensure that the solution they have drawn up is fairly employed, they will understand and go along. After all, what is good for the goose, is also good for the gander…
With the dawning of the automobile age, Ford Lunch established itself at the southeast corner of Holt Boulevard and Euclid Avenue, where by the 1920s it had become a favored midway stopping point for the movie stars and celebrities on their way to Palm Springs or Lake Arrowhead. In those days, it sat amongst a slew of Ontario enterprises along A Street, which was later named Holt Boulevard, serving travelers, including restaurants, motels, service stations, radiator shops and mechanics garages. Ford Lunch was also located within walking distance of the Ontario Hotpoint Works, where one of the earliest versions of the electric iron was produced. Ford lunch developed a degree of cachet with the residents of Ontario over the years, with its bright crystal chandelier attracting customers in the evening. One of its culinary features involved buttering the restaurant’s hamburger buns. It remained a fixture in Ontario into the late 1960s.
Chaparral whitethorn, which bears the scientific name Ceanothus leucodermis, is a thorny shrub growing erect to heights approaching 12 feet. A member of the buckthorn family Rhamnaceae, this plant despite its thorns is fed upon by several types of ungulate, such as mule deer and bighorn sheep, which eschew its mature or established spines for its tastier and more tender new growth and shoots. Native to California and Baja California’s coastal and inland mountains, chaparral whitethorn is fairly common on dry rocky or sandy slopes to 6,000 feet in chaparral, coniferous forest, and oak woodlands.
Sometimes called the California lilac, jackbrush or the ceanothus, Ceanothus leucodermis has pale green or gray-white smooth and waxy bark that is somewhat hairy, especially when new, with short spreading spiny branchlets. The twigs harden into sharp-tipped thorns as they age. The evergreen leaves are alternately arranged, oval in shape and up to about an inch-and-two-thirds long. The edges are smooth or lined with tiny glandular teeth. Leaves are covered with a delicate, white powdery coating that can be rubbed off. Stipules, the small leaf-like structures on the stem at the base of the stem of the leaf, are thin and fall off early, compared to other members of the genus. The inflorescence is a long, stalked one-and-one-quarter inch to three inch long cluster of small but showy flowers in shades of blue, lavender, or white, blooming from April to June. Each flower has five somewhat petal-like, incurved sepals united at the base, and five distinct hooded and clawed petals. There are five stamens opposite the petals.
The fruit is a sticky, three-lobed capsule about half a centimeter long. Fruits do not have horns, as do some other members of this genus.
It has an extensive root system and its root was used by Indians for thread.