Lawyers for San Bernardino County and its flood control district have rejected outright the assertions of the Colonies Partners development consortium in that company’s civil rights, conspiracy, retaliation and breach of contract lawsuit filed March 1 against a multitude of government officials and prosecutors.
That lawsuit alleges the failed prosecution of Colonies Partners principal Jeff Burum and three former San Bernardino County officials on conspiracy, extortion, bribery, misappropriation of public funds and conflict of interest charges involved the falsification of evidence, the disregarding of exonerating evidence, the withholding of exonerating evidence, and the manipulation of witnesses and testimony. The lawsuit further alleges that San Bernardino County failed to make good on its agreement to indemnify and hold harmless the Colonies Partners from any claims arising out of a $102 million legal settlement conferred upon the Colonies Partners in 2006. The criminal charges revolved around allegations that illegal inducements had been made by the Colonies Partners to obtain that settlement.
“The defendants allege that plaintiff cannot establish that it has been deprived of a constitutional or statutory right,” Charles E. Slyngstad, the lead attorney representing the county stated in an answer filed with the U.S. Federal Court in Riverside on March 26.
The $80 million suit was filed on behalf of the Colonies Partners by former federal judge Stephen Larson and his law partner, Jonathan Phillips, both of whom represented Burum during an eight month-duration criminal trial before two juries last year in which Burum and his codefendants Paul Biane and Mark Kirk were found not guilty of all charges brought against them by the panel hearing the case against them. The other jury deadlocked on all of the charges brought against Jim Erwin. Thereafter, on a motion by the prosecution, the charges against Erwin were dismissed.
Despite the exonerations, Slyngstad maintains the prosecution, composed of members of both the San Bernardino County District Attorney’s Office and the California Attorney General’s Office, was justified in pursuing a criminal case against Burum, Biane, Kirk and Erwin. “The fact that Mr. Burum and others were found not guilty is not a vindication of their conduct and does not make the county and the district responsible for the cost of a criminal defense or other costs allegedly paid for by Colonies Partners,” Slyngstad stated in publicly announcing the answer to the lawsuit.
In a 29-count indictment handed down by a grand jury in May 2011, prosecutors alleged that Burum blackmailed and extorted former supervisors Bill Postmus and Paul Biane to vote in support of the county providing the $102 million payout to settle a lawsuit the Colonies Partners filed against the county over flood control issues at the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions in Upland. The indictment further alleged that Burum then kicked back four separate $100,000 bribe payments to Postmus and Biane, to Jim Erwin, a former sheriff’s union president and Postmus political associate, and to Mark Kirk, the chief-of-staff to former supervisor Gary Ovitt, who had provided the third crucial vote in favor of the $102 million settlement.
Postmus in 2011 entered guilty pleas to conspiracy, bribery, conflict of interest, fraud, perjury and tax evasion charges relating to the 2006 vote to settle the case and his reception of $100,000 from Burum and the Colonies Partners the following year. He then turned state’s evidence and in April 2011 was the star witness before the grand jury that returned the indictment of Burum, Biane, Kirk and Erwin.
The case went to trial in January 2017. In May 2017, Postmus testified, offering during his direct examination by the prosecution a version of events that supported the charges. Subsequently, however, under the withering cross-examination of defense attorneys, he fell apart, supporting their suggestions that both the prosecutors and the investigators working for the district attorney’s office had exploited his vulnerable state brought on by his extensive use of methamphetamine and the legal charges against him, together with the terms of his plea arrangement which called for leniency in his sentencing in return for his cooperation. In this way, the suit alleges, the prosecution team planted false memories in Postmus’s mind and induced him to offer false testimony implicating the defendants. “Most egregiously, they [prosecutors and investigators] coerced Mr. Postmus into giving false testimony and leveraged his drug addiction to manipulate his memory,” the suit states.
Named in the lawsuit are San Bernardino County District Attorney Mike Ramos, former California Attorney General and current Governor Jerry Brown, former California Attorney General and current U.S. Senator Kamala Harris, San Bernardino County Deputy District Attorney Lewis Cope, Deputy California Attorney General Melissa Mandel, former assistant district attorney Jim Hackleman, former deputy attorney general Gary Schons, district attorney investigators Hollis “Bud” Randles and Robert Schreiber, county supervisor Josie Gonzales, former county counsel Ruth Stringer, and former assistant assessor Adam Aleman.
According to the lawsuit, the prosecutors and their investigators “refused to accept Mr. Postmus’s repeated denials of a corrupt quid pro quo agreement to exchange his vote for the 2007 campaign contributions. Mr. Postmus explicitly and repeatedly denied that he had ever accepted a bribe in exchange for his pro-settlement vote. Defendants refused to accept this truth because it did not further their retribution campaign against [the] Colonies [Partners]. So, over the course of several interviews, defendants Randles and Schreiber, supervised by defendants Ramos, Cope, Hackleman, Harris, Mandel, and/or Schons convinced Mr. Postmus that he had committed various felony offenses related to the settlement, and coerced him into pleading guilty and testifying to those supposed offenses before the indicting grand jury.”
In the county’s answer, Slyngstad wrote, “Defendants deny the allegations.”
Similarly, Slyngstad also dismissed the lawsuit’s allegation that district attorney’s office investigators Schreiber and Randles “planted smaller deceptions for the purpose of manipulating Mr. Postmus into telling larger lies. Mr. Postmus later recognized and admitted that his contradictory and nonsensical ‘memories’ of these events had been planted by an unscrupulous and coercive prosecution team.”
“Defendants deny the allegations,” Slyngstad wrote.
The answer dismisses the suggestion in the lawsuit that the county engaged in breach of contract by not funding Burum’s legal defense in the face of the criminal charges lodged against him.
According to the lawsuit, “in their zeal to exact this punishment, defendants county and [the county flood control] district ignored their contractual obligations under the settlement agreement, as fulfilling them would have undermined the multi-pronged strategy of retaliation. The county and district were undoubtedly thrilled that [the] Colonies [Partners] was being forced to spend millions of dollars defending itself from the bogus investigation and prosecution, which various county and district employees vigorously encouraged and assisted. Defendants county and district thus breached the settlement agreement and violated the covenant of good faith and fair dealing by failing to defend and indemnify [the] Colonies [Partners] in two subsequent legal actions, failing to defend the validity of the settlement agreement, and assisting the San Bernardino County District Attorney’s Office and California Attorney General’s Office in their efforts to invalidate the settlement agreement through the criminal prosecution of Mr. Burum.”
According to Slyngstad, however, any governmental contract tainted by a conflict of interest is rendered null and void and is not enforceable. California Government Code Section 1090 applies to conflicts of interest involving public officials. Thus, Postmus’ guilty plea to a violation of Government Code Section 1090 as pertained to his approval of the $102 million lawsuit settlement excused the county from having to abide by its indemnity guarantee, Slyngstand maintained.
“Plaintiff is not entitled to indemnity and/or defense for any matters that relate to plaintiff’s and/or its agents’, confederates’, or alleged indemnitees’ actions in violation of Government Code Section 1090 and other provisions of California law pertaining to conflicts of interest,” the answer reads. “Defendants allege that they have fully performed all terms, conditions and obligations that were theirs to perform under the agreement that is the subject of those claims. [W]ithout admitting that defendants engaged in any of the acts or conduct attributed to them in the complaint, any breach of the agreement sued upon was excused by plaintiff’s prior breach.”
In a statement separate from the answer, Slyngstad said, “The county and the district deny they are liable to Colonies in any amount whatsoever.”
In the answer, Slyngstad asserted, “Defendants affirmatively allege that plaintiff’s allegation that ‘the prosecution’s case was marred by repeated use of fabricated evidence and perjured testimony’ is made without a good faith belief that it is true.”
Slyngstad said the Colonies Partners had already received more money than the company was entitled to with the $102 million settlement and that Burum is now seeking to extort more money from the county. Slyngstad called the suit filed March 1 “another attempt by a multimillionaire to take more taxpayer money. Mr. Burum is treating this case like a bargaining chip in a business deal. The defendants in this case were unjustly sued.” Slyngstad said county officials “are looking forward to an opportunity to show in this civil case that Colonies and Mr. Burum acted inappropriately and continue to act inappropriately in influencing politics for their own financial gain and windfall.”