SB City Manager Keeping “Smoking Gun” Development Memos Under Wraps

Indications are mounting that some San Bernardino city official or officials in 2018 pulled strings to prevent the proposal for a welfare office now scheduled to be placed into the Muscupiabe residential district from being considered and vetted and therefore signed off on during the type of full public access open forum routinely used for processing most development projects within the 62-square mile, 235,000 population county seat. Rather, it appears, the controversial project was approved during a meeting of the city’s senior staff officials in a far more obscure venue as a ploy to favor the project’s politically well-connected developer.
Last November, the San Bernardino Development and Environmental Review Committee, consisting of various members of city staff, primarily department heads and those from the community and economic development department, gave developer Scott Beard and his company, 27th Street TAD, LLC, go-ahead to construct a 38,150-square-foot building on a patch of ground at the northwest corner of 27th Street and Little Mountain Drive in San Bernardino, also described as Assessor Parcel No. (APN) 0148-021-66-0000. The property lies along the periphery of the Muscupiabe District, an historic neighborhood nestled between the triangular intersection of the 210 Freeway and 215 Freeway, contained within the city’s Second Ward and immediately adjacent to Ward Five, and a stone’s throw across the freeway divide to Ward Six.
In December 2017, the San Bernardino County Board of Supervisors approved a recommendation from the county’s director of real estate services, Terry Thompson, and the director of the county’s transitional services department, Gilbert Ramos, that the county enter into a $14,036,184 lease agreement with 27th Street TAD, LLC, for approximately 38,150 square feet of office space to be located at the northwest corner of 27th Street and Little Mountain Drive site for occupancy by the transitional assistance department for the ten-year period beginning August 1, 2019 and running through July 31, 2029.
The transitional assistance department, which is sometimes referred to by its acronym TAD, provides a wide array of federal and state-mandated social services and income assistance programs to the residents of San Bernardino County, particularly those whose loss of jobs or income has put them at risk of becoming, or has rendered them, homeless.
The historic and quaint Muscupiabe neighborhood on the city’s northwest side is among some of San Bernardino’s strongest and most impressive residential sections. It’s entryway features large pepper trees and medium size homes, some of impressive architectural character.
For more than six months after Beard and 27th Street TAD, LLC were given clearance to proceed with the project, little attention was paid to the matter. After the development company, following a delay, began preparations for the construction project, including fencing off the property and undertaking to grade it, curious nearby residents inquired, at which point the nature of the project was first revealed to them. Word thereupon spread throughout the district like wildfire, and City Hall was inundated with protests and complaints, all of which arrived too late to stop Beard from carrying on with the project.
An initial round of inquiry by the district’s residents turned up three immediately apparent anomalies.
Two of those anomalies involved somewhat similar but separate mislabelings of the project. While at the county level and at the internal city level the project was clearly defined as what it was – a building to house an office of the transitional assistance department, a division of the county’s human services department – at one stage the city utilized an architect’s description line on a rendering for the building which substituted “resources” for “services” in the heading human services. This changed the implication to suggest that the building was intended to house the county’s human resources or personnel department. The second misnomer unrelated to the blurring of services/resources nuances occurred when in internal memos to the city council relating to the project and in the disclosure notifications to the residents living in proximity to the project, the structure to be built was referred to in planning profession jargon as one which would feature “office professional” uses or as a “professional office” building. Those terms carry a different connotation than the designation “commercial office,” which more accurately fits the actual 27th Street TAD, LLC project. A professional office is an office in which employees of a company are housed, featuring equipment and facilities typical of clerical work such as desks, chairs, cabinets, computers, adding machines, typewriters, printers, telephones and the like and where employees there either function separately or interact with one another or both but have little or no contact with the company’s clients and customers on site. This use generally involves a less substantial flow of traffic into and out from the site. In a commercial office, in addition to housing the employees of the businesses located at that location, those venues involve a daily or constant influx of customers to those businesses, entailing a much more substantial number of people and vehicles into, on and departing from the site on a constant basis during normal business hours. It thus appears that the city’s representation of the 27th Street TAD, LLC project obscured not only that the building upon completion would be a welfare office but that there would be a substantial amount of traffic into and through the area around the project in terms of people and cars coming onto and leaving the site.
The third anomaly was that instead of the project being presented to the city’s planning commission for analysis, recommendation and approval before being signed off on by the city council, the city’s development and environmental review committee, consisting of various members of city staff, primarily department heads and those from the community and economic development department, vetted the project. This was done outside a fully public venue, with what for practical purposes is a less than fully realistic opportunity for members of the public to scrutinize and analyze the project, its documents or particulars. While development and environmental review committee meetings are not closed to the public, they are extremely obscure proceedings which few residents know about and even fewer attend, though they are broadcast on the city’s website. Convened at 10 a.m. on Wednesdays, they take place at a time when most adult residents of the city who are employed are at work, making public attendance somewhat problematic. Because the open public hearing process for the project was so limited and carried out under what was essentially a shroud of obscurity and misrepresentation, the residents of the Muscupiabe District – those to be most directly impacted by the project – had no knowledge of what was coming their way and did not have the opportunity to provide their input or offer any opposition to the project at the earlier point when the project’s approval could have possibly been prevented. At the November 14, 2018 Environmental and Design Review Committee hearing for the project, it was identified on the agenda as “an office building” and the zoning on the site as “commercial office.” The agenda further minimized the impression that the project would have a substantive impact on the area by saying it was “categorically exempt” from the requirement that an environmental impact report relating to the project be provided.
All of this, when combined with the circumstance of the political atmospherics at the time of the approval, makes for what many consider to be a suspicious circumstance.
The project was approved by the city’s development and environmental review committee on November 14, 2018 in the window between the November 6, 2018 election in which John Valdivia ousted incumbent Mayor Carey Davis and December 19, 2018, the date when Valdivia was sworn in as mayor and Carey Davis exited as mayor. Though Davis was a lame duck in the six weeks and one day between November 6 and December 19, he was nevertheless yet mayor, with authority as the titular head of San Bernardino’s municipal government. Throughout Davis’s nearly five-year tenure as mayor his major political supporter was Scott Beard. Indeed Beard would become Davis’s de facto campaign manager. Beard, through Gerald W. Beard Realty, SC Beard Enterprises and San Bernardino Residents for Responsible Government, provided Davis with $45,000 toward his 2018 mayoral re-elective effort.
In the last throes of Davis’s tenure as mayor, in the little remaining time that Davis had before his power and authority would lapse, the normal protocol for the approval of development projects, and in particular a project of such scale and potential controversy as that one being pursued by 27th Street TAD, LLC, was suspended. As a consequence, the approval of the project, the completion of which would provide Scott Beard with $1.406 million per year for a decade, came off without a hitch.
By the first week of this month, the awakening of Muscupiabe neighborhood was complete and the growing numbers of the district’s property owners were up in arms. Second District Councilwoman Sandra Ibarra and Fifth District Councilman Henry Nickel took up the cause for the area’s residents, vectoring attention to what had occurred in November, and advocating that the city apply some remedy to the situation. At the August 7 city council meeting, they insisted that the burgeoning crisis come up for discussion. Former City Attorney James Penman advised the city that it “needs to preserve the status quo and freeze the situation,” advising the council it should “protect the city from liability by issuing a stop work order. You have to preserve the city’s position. You have to stop and freeze everything in order that you can do a proper investigation to determine what happened. If you don’t issue the stop work order, the developer continues to build and acquires vested rights. Later [when] the residents get a writ of mandate and make him stop, he is going to sue the city for allowing him to continue to build and spend money.”
Ibarra and Nickel sought to usher the council toward action before Beard proceeded with actual building activity beyond the grading he had done up to that point. Nickel made a motion to “direct our city manager to issue immediately a stop work order on this project and take appropriate corrective action.” That motion was seconded by Ibarra, but before a vote was taken a discussion ensued in which City Attorney Sonia Carvalho cautioned the council against imposing a stop work order on Beard after the city had given him approval to proceed with the construction of the building. She advised the council that it could yet seek to require that his tenant – the county – obtain a conditional use permit to operate a social services office at that location, potentially giving the city the leverage to head off the eventuality of the operation setting up at that spot. Sensing that there was not will on the council to move ahead with the stop work order, Nickel made a motion that the city council direct City Manager Teri Ledoux and city staff to proceed with an ongoing investigation Ledoux said she had already initiated, and report its findings back to the city council on August 14.
By the time August 14 had rolled around, however, Beard was threatening to sue the city if it took any action whatsoever – against him, his company, or the county – that would interfere with the completion of the project. While the public was expecting that the report of the investigation Ledoux was carrying out would be released on August 14 or shortly thereafter, based on Beard’s threat of legal action, the report and the documentation it entailed were withheld.
This prompted Kathy Mallon, who lives in the Blair Park Neighborhood immediately adjacent to the Muscupiabe District, to fire off, on August 17, a request made under the California Public Records Act that the city produce for her perusal information, documents and data that many people previously assumed would have been forthcoming with Ledoux’s so-called investigation.
Referencing “APN 0148-021-66, Northwest corner of Little Mountain Dr and W 27th St.,” Mallon wrote, “Please provide all permit application documents filed by 27th Street TAD and ATC Design Group” and “Please provide all staff reports used in support of the D/ERC [Design and Environmental Review Committee] evaluation” and “All email communications between staff and city administrators either internal or with the applicant/property owner. List below of known city staff and administrators to include but not limited to: R Carey Davis, Benito Barrios, Andrea Miller, Teri Ledoux, Jeff Bloom, Oliver Mujica, Brian Gumpert, Gary Akers, Hernando Cotangco, Robert Sepulveda, Robert Linberg, James Lane, Gracie Johnson, Stephanie Sanchez.”
Benito Barrios was the Second Ward Councilman in 2018. Jeff Bloom was the city’s acting community development director in 2018. Mujica was and is San Bernardino’s planning division manager. Gumport is with the city’s building and safety division. Akers is with the city’s land development division. Sepulveda is with the city’s public works engineering division. Lane is with the city’s environmental control division. Johnson is the city’s integrated waste division representative. Sanchez is the commission’s secretary.
Mallon sent her public records request via email directly to City Clerk Gigi Hanna, with electronic carbon copies to Ledoux, Nickel, Mayor Valdivia and Ibarra.
In an effort to juke Mallon, Ledoux had the city’s spokeswoman, Candice Alvarez, respond to Mallon by email on the morning of  August 27 in which she noted that Mallon’s request was being processed, adding “All requests for records need to be submitted to the city clerk’s office so that we can process them appropriately,” which implied that Mallon had not made the request properly. Within an hour Mallon emailed back to Alvarez, “The email sent on 8/17/2019 was sent to Gigi Hanna, City Manager Teri Ledoux, and the 2nd & 5th ward councilmembers. Teri Ledoux actually sent a portion of the request to me via email on 8/20/2019 and you were a cc on that email. Telling me 10 days into this request that I needed to process this in a different manner is unacceptable when it was sent in an acceptable method on the original request date and gives the appearance of stalling.”
Indeed, word through confidential channels at City Hall is that smoking guns exist in the communications among the various parties involved with the 27th Street TAD LLC project last fall, ones that demonstrate city officials actively involved in the approval process colluded among themselves and with 27th Street TAD LLC to prohibit the public from having a realistic opportunity to learn of the project and its actual nature, let alone provide timely input on the proposal before the  city’s development and environmental review committee put its imprimatur on it.
An indication of how egregious the collusion and convincing the evidence of it is consists of both Valdivia’s and Ledoux’s determination to keep it under wraps and prevent those incriminating communications from seeing the light of day.
Though what occurred came during the watch of former Mayor Davis, Valdivia’s political rival whom he defeated last year, Valdivia and his team still don’t want the information out because of the potential legal liability it represents to the city. A request sent by the Sentinel this week to Valdivia’s chief of staff, Matt Brown, asked him to use the mayor’s authority to expedite the release of the communications Mallon had requested. The request garnered no response.
The Sentinel has learned Ledoux is withholding the communications among and between staff as well as individuals with 27th Street TAD LLC not only from members of the public including Mallon but from both Ibarra and Nickel, who as members of the council have direct authority over Ledoux when acting in concert with the other members of the council. Ledoux’s reluctance to have Ibarra and Nickel in the loop is based on the concern that those two council members cannot be counted upon to not pass the communications along to the public.
Last week, Nickel told the Sentinel, “In the investigation that we requested, the [current] city manager [Teri Ledoux] did not produce the emails from members of the development and design review committee, [former City Manager] Andrea Miller, Carey Davis and Scott Beard. I have requested that all of those be produced. I anticipate there may be something there. I haven’t seen anything up to this point. The city manager hasn’t provided emails or communications or phone records yet.”
After the passage of seven more days, Nickel told the Sentinel Ledoux had still not come through with the requested communications, including emails, memos, text messages or voice mails. Asked if it is safe to assume the city is hiding something, Nickel said, “It is safe to say it could be. It is also safe to say that concerns exist as to what may exist in the context of the requested correspondence. It is furthermore safe to say the city does not appear to have sufficiently responded to the request for correspondence in contrast to the requests for other documentation.”
-Mark Gutglueck

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