Former San Bernardino County Fourth District Supervisor Gary Ovitt’s one-time chief of staff says he is owed $35 million in lost past, current and future wages as well as in real and punitive damages for harm to his reputation as a result of his failed prosecution on political corruption charges.
Mark Kirk was one of four defendants indicted in 2011 in the Colonies Lawsuit Settlement Public Corruption Scandal that overtook one-time San Bernardino County political gargantuan Bill Postmus nearly a decade ago. Postmus was the first participant to be charged in what prosecutors said was a complex extortion and bribery conspiracy. Once the chairman of the county board of supervisors and simultaneously the chairman of the San Bernardino County Republican Central Committee, Postmus ultimately entered guilty pleas to a raft of political corruption charges lodged against him, and then turned state’s evidence against others alleged to have been involved in the scheme.
Mark Kirk
At the basis of the matter was the November 2006 settlement that brought to a close a lawsuit the Colonies Partners development consortium had filed in 2002 against the county and its flood control district over storm water diversion issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. The settlement, which was approved by a 3-2 vote with supervisors Bill Postmus, Paul Biane and Gary Ovitt supporting it and supervisors Josie Gonzales and Dennis Hansberger dissenting, entailed the county paying the Colonies Partners $102 million.
After the settlement was made, between March and the end of June 2007 two of the Colonies Partners managing principals, Jeff Burum and Dan Richards, arranged to have the Colonies Partners make separate $100,000 contributions to political action committees controlled by former sheriff’s deputies union president Jim Erwin, Biane and Kirk, the chief of staff to then-supervisor Ovitt. The Colonies Partners also made two $50,000 contributions to each of two political action committees controlled by Postmus. In 2010, the district attorney’s office and the state attorney general’s office filed charges against Postmus and Erwin, alleging extortion, bribery, misappropriation of public funds, conflict of interest, fraud, perjury and tax evasion in conjunction with the settlement and the political donations that ensued. Both pleaded not guilty, but the following year Postmus entered guilty pleas to all of the charges. After his testimony, and that of some 30 others before a grand jury, Erwin, Biane, Kirk and Burum were named in a 29-count indictment handed down in May 2011. That indictment reflected prosecutors’ allegations that prior to the November 2006 vote to approve the settlement Erwin and Burum had bullied Postmus and Biane with threats to expose their personal vulnerabilities, including Postmus’s drug use and homosexuality and Biane’s financial difficulties. Prosecutors alleged that Burum and Erwin thus successfully blackmailed Postmus and Biane into supporting the settlement and then provided them both $100,000 each in kickbacks after the settlement, and that those bribes had been hidden, or laundered, in the form of political donations. Similarly, the indictment described the $100,000 provided to Kirk’s political action committee as a kickback to reward him for helping convince Ovitt to support the $102 million settlement.
After extended rounds of legal motions, the case against Erwin, Biane, Kirk and Burum went to trial in January 2017. Ultimately, Biane, Kirk and Burum were acquitted of all of the charges against them, and the jury hearing the case against Erwin deadlocked on all counts. Subsequently, the prosecution, consisting of a combined district attorney’s office/state attorney general’s team, moved to have all of the charges against Erwin dismissed and the motion was granted by Judge Michael Smith, who had presided over the case.
On December 18, Mark Kirk, alleging malicious prosecution, filed a $35 million claim against the county, asserting that the team of prosecutors on the case “either knew — or should have known — that numerous witnesses were offering false and perjured testimony.”
Kirk maintains that Adam Aleman, who had been one of Postmus’s close political associates and was appointed by him to serve as assistant assessor after Postmus was elected to that post, falsely implicated Kirk and the other defendants in crimes that Kirk maintains never occurred. Similarly, according to Kirk, supervisor Josie Gonzales and district attorney investigator Hollis “Bud” Randles perpetrated falsehoods and fabricated evidence that enabled the prosecution to trump up charges against him and his codefendants. Both Aleman and Postmus, Kirk claims, were “manipulated” by the prosecution to provide jurors with a false narrative implicating the defendants.
Kirk maintains the prosecution came in retaliation for the Colonies Partners having sued the county and engaging in what should have been protected free speech. In launching the criminal investigation that led to the prosecution and in carrying out the prosecution, Kirk maintains, prosecutors failed to “act reasonably,” were negligent and subjected him to false arrest and false imprisonment as well as the intentional affliction of emotional distress.
The case presented against Kirk at trial essentially boiled down to a limited set of actions and statements by Kirk, which the prosecution documented. One was Kirk’s reception of $100,000 provided by the Colonies Partners, which was donated to a political action committee he set up, the Alliance for Ethical Government, some four months after the $102 million settlement was approved. Kirk entrusted the creation of that political action committee to one of Postmus’s political associates, Anthony Riley, who designated two women – Kitty Stennett and Kathleen Rough, Patrick Riley’s mother – as the vice chairwoman and chairwoman of the committee and forged multiple documents in the creation of the committee and perpetrated further forgeries in providing two $10,000 payments to Kirk for Kirk serving as a consultant to his own committee. Stennett testified she did not know she was one of the committee’s officers until she was called before the grand jury. Prosecutors alleged that the money provided to the Alliance for Ethical Government was a bribe or kickback provided to reward Kirk for delivering Ovitt’s vote in favor of the settlement. Ovitt testified that he had arrived at a decision to support the settlement independent of Kirk’s counsel. Kirk did not testify at the trial. Another indicator of Kirk’s guilt, the prosecution alleged, was Kirk’s efforts to use his position as Ovitt’s chief of staff to influence the county’s lawyers to settle the case on terms favorable to the Colonies Partners. The trial contained testimony that Kirk had done Jeff Burum’s bidding during a conversation he had with then-county counsel Ron Reitz, the county’s highest ranking in-house attorney, shortly after Ovitt had taken office. In that exchange, Kirk pushed Reitz to let the board settle the case short of trial, telling him, “You can’t handle the Colonies case like a regular case. It is a political issue.”
Under state law, an individual cannot file a lawsuit against a municipal or governmental entity without first filing a claim. The governmental entity then has 45 days to accept or reject the claim. Upon the rejection of the claim, the claimant then has one year within which to file a lawsuit with the issues enumerated in the claim as causes of action.
Three of the defendants in the case have now filed claims totaling $105 million. On top of Kirk’s $35 million claim is one by Burum and the Colonies Partners for $45 million and one by Erwin for $25 million. Biane has yet to make a claim.
-Mark Gutglueck