By Mark Gutglueck
Upland City Councilman Sid Robinson this week denied that there was anything improper or illegal in the city’s contractual arrangement with the 20/20 Network, a company with which he has been professionally affiliated.
Robinson’s denial came on the heels of a reliable report that an investigation by the San Bernardino County District Attorney’s Office which originally focused on alleged Brown Act violations by the Upland City Council had escalated into a larger and more comprehensive inquiry into criminal conflicts of interest and conspiracy involving Robinson and other Upland city officials relating to deliberate acts undertaken by the council as a whole which have had the potential effect of enhancing the earning potential of the 20/20 Network and its principal, Steve Lambert, one of Robinson’s affiliates and business partners.
While acknowledging a “previous” relationship with the 20/20 Network, Robinson told the Sentinel that relationship came to a close in the days just prior to his having been elevated to the city council.
Information turned up by investigators includes indications that Robinson’s council colleagues provided him with appointments to adjunct governmental and regional committees, commissions, boards and joint powers authorities that would potentially allow him to churn business for the 20/20 Network, a company which is essentially a creature of Steve Lambert, who was once the publisher of the largest daily newspaper serving and circulating in the communities on the west end of San Bernardino that include Upland, the Inland Valley Daily Bulletin.
There were conflicting reports as to whether Robinson ever had, or may still have the vestige of, an ownership stake in the 20/20 Network, which had become an area of inquiry for investigators.
One issue being focused upon by district attorney’s office investigators is a determination as to what stage Lambert’s buy-out of Robinson’s interest in the 20/20 Network has progressed and what percentage of 20/20’s ongoing proceeds are being returned to Robinson, if any.
A critical issue in the investigation is that the 20/20 Network was provided a $3,500 per month contract by Upland City Manager Martin Thouvenell to carry out under the rubric of “strategic communications,” a number of tasks relating to what are called “core services,” which include, according to the contract, “strategic planning, strategic counseling to the city manager, staff and elected leadership; communications services, the development and execution of a strategic communications plan, brand development, ongoing media relations, news releases, story development, media introductions and crisis management, development of op-ed pieces and columns for local publications, coordination of editorial board meetings, general messaging and communications, internal and external.”
Further, according to the contract, 20/20 is to provide “additional services, upon agreement” which relate to, the contract says “social media: development and management of a Facebook page, with 1-2 posts per day; social media monitoring and responses; a monthly newsletter; and a quarterly magazine.”
Some have sought to defend the contract and its circumstance, asserting such efforts are de riguer in modern times given the ubiquity of social media and its current status as a communication medium, while pointing out that the contract with 20/20 was dated October 11, 2016 and became effective November 1, 2016, which was prior to Robinson becoming a member of the city council. Others, however, maintain that elements of the contract, particularly those relating to the strategic counseling of elected leadership, crisis management and social media monitoring and responses, constitute an illegitimate effort toward information management. And the timing of the 20/20 network’s hiring is even more troubling, they say, since it occurred during the height of the 2016 Upland municipal election season, when Robinson was a candidate vying for city council. While Robinson led in the early returns on election day and the day thereafter when the ballots cast at the city’s precinct and the earliest arriving of the mail-in ballots came into the registrar of voters office and were tallied, he was in a neck-and-neck race against Janice Elliott for the one position on the council up in the election, which in presidential years in Upland is paired with the mayoral election. With the later arriving mail-in ballots and the counting of straggling provisional ballots, Elliott surpassed Robinson and hung on to that victory when the official results were certified. In the mayoral contest, however, Debbie Stone, an incumbent councilwoman with two years remaining on her term, was herself victorious, necessitating that her vacant position on the council be filled. At its December 12. 2016 meeting, the city council held a swearing-in ceremony for both Stone and Elliott, whereupon the four members of the city council took up the issue of filling the gap on the council. Citing the rationale that Robinson was a close runner-up in the just concluded election, the council, which at that point was being strategically counseled by the 20/20 Network, chose Robinson as Stone’s council replacement on a motion by councilman Gino Filippi that was seconded by Elliott. The vote to appoint Robinson to the council carried unanimously. Thus, an issue for investigators is whether Lambert may have had some undue influence on the city council in its decision to elevate Robinson to the position he had vied for but failed to attain through the elective process.
It was in the aftermath of Robinson’s acceding to the city council that questions about the propriety of the City of Upland’s relationship with his business associate came to the fore. Unbeknownst to the public, Lambert has been granted access to the city council inner sanctum, and was permitted to take part in its closed door sessions.
Generally, the governing boards of local governmental entities conduct their affairs in a public forum, with only narrowly defined exceptions for issues which, if publicly discussed before they are internally and externally resolved, might represent a liability for the governmental entity, its constituents and taxpayers and the public at large. The principle of open government in California is embodied in the Ralph M. Brown Act, the State of California’s open meeting law, referred to colloquially as the Brown Act. The Brown Act sets out guidelines for the behavior of public officials with regard to their action on issues that face the agency they represent, including restricting a quorum of a board’s members from meeting or discussing together or in even a serial fashion discussing any issue before the board [i.e., school district board, water district board, fire district board, city council, county board of supervisors]. Such discussion, decisions and votes can only take place in a public meeting, to which the public has been alerted at least 72 hours in advance and for which an agenda containing all such items to be discussed or upon which action will be taken has been published and is publicly available. As most public boards in California, including the Upland City Council, consist of five members, this practically means that it is illegal for three of its members to meet or hold discussion in any capacity outside of an agendized public meeting. The Brown Act narrowly defines four specific topics that a board such as the Upland City Council can discuss in private, again, only in the context of an agendized meeting, though in the case of any of these four topics, behind closed doors and outside the scrutiny of the public. Those four topics are performance reviews or the termination of an employee; litigation or pending litigation; contract negotiations; or negotiations for the purchase or sale of real estate. The discussions taking place at these closed door meetings are deemed confidential until such time as a decision of definitude with regard to the issue discussed is made, such as firing the individual employee in question; giving direction to the city’s legal team to settle or file a lawsuit; or a vote to enter into a contract or finalize the acquisition or sale of property. Consequently, attendance at these closed door meetings is limited to the elected body and senior staff whose participation is needed to assist in the elected body’s decision-making process. In a municipality this translates to the mayor and city council, the city manager, the city attorney and on occasion, a department head or even more rarely an employee whose input can help inform the decision.
In March, Elliott grew concerned that the Upland City Council was routinely violating the Brown Act by discussing issues which did not qualify as being among the four general areas given exception under the Brown Act. One element of these alleged violations was that Lambert was involved in the discussions, offering what was secretive input to the entire council in the presence of the city manager and the city attorney but beyond the view of the general public and the citizens of Upland. Lambert’s input touched on issues that had no application to personnel issues, litigation, contracts or real estate transactions but rather policy decisions that should have been subject to open public discussion and scrutiny by the public, including comment from residents with regard to the advisability of that policy.
Accompanying Elliott’s concerns with regard to the Brown Act violations were her reservations with regard to the very policy that was a subject of the illicit closed door discussions at which the policy was being formulated and relative to which Lambert was mapping out a strategy to actuate or execute so that it was met with public support or minimal public resistance. When Elliott sought, at city council meetings or in public forums such as op-ed pieces or her own self-styled town hall meetings, to shed light on elements of the policy or actions the city council was taking or to question the rationale for the policy or action or engage in or encourage an open public dialogue with regard to those issues, she began to experience pushback from her council colleagues and Thouvenell, the city manager.
One issue in particular, the city council’s move to close out Upland’s 106-year-old municipal fire department and simultaneously annex the city into a county fire service zone so that the county fire district would become the city’s de facto fire department, resulted in city officials encountering far greater resistance than they initially anticipated, particularly after the county division in charge of hashing out jurisdictional issues – the San Bernardino County Local Formation Commission – elected to group neighboring San Antonio Heights together with Upland into the fire service zone without a ballot vote and impose on the residents of both of those communities a $152.68 per year assessment with annual increases into perpetuity to defray the county’s cost, while allowing the City of Upland to pocket the net savings it realized in the shuttering of the department.
Elliott, who had taken her place on the council after the previous council had set the annexation process in motion, for the first two months of her tenure on the council went along with the council’s intent, indeed was persuaded to publicly support the shuttering of the city’s fire department and help move the transition to county fire department along. But in her interaction with many of her constituents she encountered arguments that countered those being made by Lambert to justify the changeover and when she picked up on those points and enunciated them in discussions for the sake of debate and a fuller examination of the implication of the proposal, her colleagues accused her of no longer being a team player. Privately, Thouvenell and the others, including Lambert, began pressuring her to get with the program. When the council doubled down, again using closed sessions to strategize on how to ensure the annexation went through and avoid any negative consequences for having brought it about, Elliott in May went to the public integrity unit of the San Bernardino County District Attorney’s Office, alleging the council she was a part of was violating the Brown Act.
The retribution Elliott suffered was swift and vicious. At its June 12 council meeting, the council acted to remove her from all of her adjunct committee assignments.
Ironically, the council utilized Lambert to write Stone’s speech justifying the action taken against Elliott.
More ironic still was that Lambert’s assistance in this crisis management – lashing out at Elliott and attempting to discredit her by having her ignominiously removed from the assignments that routinely are accorded to elected officials – had the effect of confirming with the district attorney’s office investigators that there was some substance to Elliott’s complaint. Moreover, Lambert’s move backfired in that it has brought to both him and Robinson attention the pair might have otherwise avoided.
The Sentinel has learned that the public integrity unit’s preliminary investigation has unearthed a smoking gun establishing a violation of the Brown Act at the Upland City Council’s May 8 meeting that was compounded by a fraudulent representation that the council was going to engage in a review of Thouvenell’s performance as city manager in order to engage in a policy discussion relating to the comportment of city council members that was aimed at dissuading Elliott from engaging in any activity that might be construed as open encouragement of the public in opposing the fire department annexation. While under the most strict interpretation of the statute, a violation of the Brown Act can be deemed a misdemeanor, practically speaking violations are virtually never considered criminal in nature and are most often dispensed with through a letter of warning or admonishment, and may be dealt with civilly in which the most severe remedy is a court declaring a decision made in violation of the Brown Act void. Nevertheless, the action of the council on May 8 went beyond a simple Brown Act violation, with the misrepresentations of the council as to what it was discussing moving into the realm of fraud, falsification of public documents and conspiracy, all of which could be charged criminally, potentially against all five members of the city council, with the possible exception of Elliott, with identical or parallel charges potentially applied against Thouvenell, city attorney Jim Markman and assistant city clerk Jeannette Vagnozzi for having facilitated the fraud. The smoking gun consists of a document that outlines the presentation that took place during the closed session bearing the heading “In House Polices of the Upland City Council,” which was signed by Stone, Robinson, councilman Gino Filippi, councilwoman Carol Timm and was initialed by Elliott. Lambert was present during the May 8 closed door meeting.
Yet more significant and serious is information and documentation now in the hands of the public integrity unit’s investigators which outline the details of the relationship between Robinson and the 20/20 Network that have the potential of not only derailing Robinson’s political career but resulting in the filing of criminal conflict of interest charges against him under California Government Code Section 1090 and misappropriation of government funds under California Penal Code Section 424. Both are felonies. A conviction under section 424 of the penal code carries with it a prohibition against ever holding public office.
Those documents, several of which have been obtained or examined by the Sentinel, indicate the district attorney’s office has traced several links between Lambert and Robinson and the 20/20 Network and Robinson.
Further, documentation in the possession of district attorney’s office investigators suggests that Robinson has been vouchsafed positions with governmental agencies and boards which put him in place to ensure the 20/20 network’s continuing profitability. For example, Lambert and the 20/20 Network handle publicity for Southern California Associated Governments, a regional planning agency. At its April 24, 2017 meeting, the Upland City Council appointed Robinson as the delegate to represent the City of Upland at the Southern California Association of Governments General Assembly Meeting on May 4, 2017.
A factor cited in mitigation of Robinson’s alleged conflict of interest is that the City of Upland entered into its contractual arrangement with the 20/20 Network prior to his appointment to the city council. Thus, Robinson did not vote to have the city contract with the 20/20 Network. Be that as it may, Government Code Section 1090 violations are considered to be strict liability crimes, such that intent is not a requirement to convict a public official of an offense under Government Code Section 1090. So, while Robinson did not vote to give the 20/20 Network the $3,500 per month contract with the City of Upland, he has, since coming on to the council voted to ratify those monthly payments to the 20/20 Network, which, if his connection to the 20/20 Network can be established, would appears to be an outright violation of Government Code Section 1090, as well as Penal Code Section 424.
Robinson maintains that there is no basis for any insinuation of impropriety or criminality against him, as he is no longer working with, on behalf of or under contract to the 20/20 Network.
“I have no present affiliation as an employee or independent contractor with the 20/20 Network, either as an individual or under my company of Robinson and Associates,” Robinson told the Sentinel. “While I have worked as a subcontractor with 20/20 in the past, our last affiliation was Dec. 1, 2016, which is before I was appointed to the city council.”
He was not part of the decision to hire the 20/20 Network, Robinson asserted.
“During my tenure on the city council, which began on January 9, 2017, the council has not taken any action approving, modifying or extending a contractual relationship with 20/20,” he said. “All such contracting has been between the city manager, utilizing his purchasing authority, and 20/20. I have not in any way participated with the city manager’s decisions and actions to contract with 20/20. Since no contract with 20/20 has been council considered or approved during my tenure, there absolutely is no basis for asserting or inferring that I violated Government Code section 1090 concerning the city’s relationship with 20/20.”
Any payments he approved as a city council member are immaterial, Robinson said. “With respect to the city’s retainer payments to 20/20, the council has not taken any action which I, or any member of the council reviewing meeting agenda materials, could have identified individual payments to 20/20,” Robinson said. “The warrant registers provided as agenda materials do not include individual line items identifying specific vendors who have received payments.”
While the city’s payments to the 20/20 Network may have been hidden from plain view, Robinson said he had been completely up front with regard to his connection to the company.
“I have been completely transparent in reporting my previous professional relationship with 20/20,” Robinson said. “Again, there has been no such relationship since I was appointed to office, and I have not voted on any actions identified as concerning 20/20 since taking office.”
Upland City Attorney Jim Markman did not respond to Sentinel inquiries with regard to whether he had advised Robinson with regard to any limitations on his action as a city councilman when it came to issues relating to the 20/20 Network.