By clicking on the blue portal below, you can download a PDF of the September 27 edition of the San Bernardino County Sentinel.
By Mark Gutglueck
Perhaps inadvertently, San Bernardino County Chief Executive Officer Gary McBride this week casually revealed what was long recognized but which San Bernardino City officials have for four years refused to acknowledge to the point of denial, namely that the controversial annexation of the entire City of San Bernardino into a county fire service assessment zone was undertaken as a means of generating revenue through a tax that was not approved by the city’s voters to be used expressly for structuring the city out of bankruptcy.
This week, the San Bernardino County Board of Supervisors sought to redress a series of irregularities in the fashion in which the county and a number of the county’s municipalities have sought to augment their fire department budgets.
Over the last two-and-a-half to three decades, as the unions representing the region’s firefighters have become ever more aggressive in their political activity, salaries and benefits, particularly pension benefits provided to firefighters have skyrocketed. Firefighters’ unions have upped the dues of their members and then invested that money into massive scale political donations, primarily to incumbent officeholders at the city council and county supervisorial level.
Accompanying that generosity, union officials, along with rank and file firefighters, have pressured local politicians to meet their demands for higher wages and increased benefits during collective bargaining sessions. The lion’s share of politicians have supported upping the salaries and benefits of firefighters on a scale of two to three times the pay rate of what firefighters were paid a generation ago. Those politicians who have not gone along with approving those increases have been targeted by the unions for removal from office. In an overwhelming number of those cases the campaigns conducted against those elected officials, utilizing mailers, newspaper, television and radio ads have driven those seeking to hold the line on firefighter salaries from office. Virtually all entry level firefighters working in San Bernardino County’s municipal, county or district agency departments make, with moderate overtime, near, at or over $100,000 per year. Firefighters at the mid-level of experience, such as engineers and captains, pull down $150,000 or slightly more per year. Those who have moved up into the administrative echelon of the department – battalion chiefs, deputy chiefs and fire chiefs –make in the neighborhood of $200,000 or more annually. Firefighters are eligible to retire at the age of 50. Virtually all firefighters who have retired in the last decade after serving a full career in the fire service are pulling pensions that exceed $100,000 annually. In a majority of fire departments or fire agencies in San Bernardino County, the cost of pensions for retired firefighters approaches, equals or exceeds the amount of the budget paid to current firefighters. In this way, the amount of money traditionally budgeted for the county’s fire departments has proven inadequate to cover costs. Consequently, cities or fire agencies have sought options to either defray the increased costs of maintaining a fire department or getting out from underneath the direct responsibility of operating a fire department. The preferred method for local governments in the county appears to be off-loading responsibility for fire services to the San Bernardino County Fire Protection District.
In August 2012, the City of San Bernardino, having endured two decades of consistently 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, filed for Chapter Nine bankruptcy protection. San Bernardino would not emerge from bankruptcy until two months less than five years later, in June 2017. In the interim, the city engaged in a number of economies intended to streamline its operation, reduce its expenses and bring its income into an equivalency with what it was spending on operations.
In 2015, then-San Bernardino City Manager Allen Parker, in conjunction with then-Mayor Carey Davis and then-Assistant City Manager Nita McKay, considered and then initiated the liquidation of the city’s 137-year-old municipal fire department as part of a cost-cutting measure that would assist the city in its bankruptcy exit plan. The city sought proposals from different entities, which included the county, the Colton Fire Department, the California Department of Forestry and Fire Protection, and the Centerra Group, a Florida-based private company, among others.
Over the course of its bankruptcy, the City of San Bernardino stiffed some 209 of its creditors and vendors for a combined $350 million. Concerned that at some point San Bernardino would skip out on its financial obligations to them as well, both Colton and the California Department of Forestry and Fire Protection refused to get into what essentially would have been a vendor/customer relationship with San Bernardino, and did not follow through with proposals relating to taking on the responsibility for fire service in the county seat. After the San Bernardino County Fire Department and Centerra submitted proposals, the city retained Citygate Associates to evaluate the respective offers. Citygate delivered to Parker its conclusion that a long term service relationship with the county fire division, given all of the existing regional arrangements and the firefighting assets and facilities owned and employed by the city and the county, was the city’s best option. Parker presented Citygate’s findings to the city council in August 2015.
Like Colton and the California Division of Forestry, county officials were leery of putting themselves in the position of being dependent upon payments from the city, an entity which had consistently demonstrated its willingness to ignore its bills. Accordingly, the county was unwilling to simply contract with the city to provide fire services. Rather, the county arranged to have the entirety of the City of San Bernardino – all 61.95 square miles of it – annexed into a fire protection zone previously established in 2006 to serve the desert communities of Helendale and Silverlakes. This zone was designated Fire Protection Service Zone Five, known by the acronym FP-5.
The inclusion of San Bernardino into Fire Protection Service Zone Five entailed the imposition of a $142 per year assessment, subject to a maximum three percent increase, on the city’s approximately 56,000 parcels, calculated to initially generate some $7.952 million per year in revenue under the auspices of the fire protection district. Simultaneously, the city entered into negotiations with the county to pass through the entirety of the city’s ad valorum, that is, property, tax. As part of the arrangement, the county thereupon returned to the city the $7.952 million collected through the inclusion of the city’s landowners into the FP-5 assessment district. Taken together with the more than $3 million to be realized by dissolving the department and by the rediversion of the $7.952 million in assessments back to the city, San Bernardino achieved “an $11 million contribution to solvency,” according to a report by a city consultant, Management Partners, which was assisting the city in mapping its way out of bankruptcy. Nevertheless, city officials bitterly and vociferously denied the suggestion that imposing on the city’s residents and landowners the $142 per parcel assessment was tantamount to a bankruptcy tax or that it was in any way seeking to tax its way clear of bankruptcy. To meet the State of California’s Constitutional requirement that all taxes imposed on residents be approved by those bearing the tax, the city through the County Local Agency Formation Commission undertook a so-called “protest validation” of the deal. Mail-in ballots were sent to the city’s property owners and registered voters seeking a show of opposition. Under the terms of that process, if during the one-month survey period 50 percent plus one of the registered voters in the city returned ballots registering an objection, the dissolution of the city fire department, the takeover by the county fire division and the imposition of the fire service assessment would not take place. If fewer than fifty percent plus one of the city’s voters but 25 percent or more protested, a traditional election was to be held on the question of decommissioning the fire department. In this way, to the extent that a “vote” relating to the imposition of the assessment could be represented as taking place, any voter or landowner who did not participate in submitting a protest was deemed to have voted in support of the annexation; those who mailed in protests were considered to have voted against it. Less than two percent of the city’s voters lodged protests against the arrangement, and the San Bernardino Fire Department, the oldest and most storied of the county’s fire departments, was discontinued as an entity. The ten still-functioning city fire stations remained open, leaving the two fire stations that had in recent years been closed by the city — Station 223 on Medical Center Drive and Station 230 on Arrowhead Avenue — shuttered. The county department augmented those ten stations with service from two existing county stations on the city’s periphery, in Muscoy and Devore. The county deployed 41 firefighters on duty during all shifts, an increase of three from the 38 firefighters the city had per shift at that time. Virtually all of the firefighters employed by the city found positions with the county, and some of the department’s management echelon personnel found employment with the county as well, though most of those were relocated into assignments outside of San Bernardino.
In relatively short order, what had occurred in San Bernardino touched off a round of similar arrangements to have the municipal or community fire departments in Twentynine Palms, Needles and Upland closed out and their function taken on by the county fire division, all similarly under the auspices of Fire Protection Service Zone Five, each involving the annexation of their respective city limits, or in the case of Twentynine Palms its city limits as well as its sphere of influence, into the service assessment zone. In the case of Twentynine Palms, the entity that had previously overseen the local fire department was the Twentynine Palms Water District. It was the water district board of directors that initiated a service annexation application with the San Bernardino County Local Agency Formation Commission to bring Twentynine Palms into FP-5.
In late 2016, the City of Upland began exploring the closure of its 110-year-old fire department in favor of having the county fire division take on firefighting responsibility in the 15.66-square mile, 75,000 population city. When in early 2017 the Local Agency Formation Commission considered the formalized application to do just that, it chose to fold into the proposal the annexation of the adjacent 2.62-square unincorporated county district of San Antonio Heights. When the protest process was undertaken, San Antonio Heights residents, whose fire protection service was already being provided to them by the county through its West Valley Division, found themselves lumped in with the residents of Upland. A primarily residential district, San Antonio Heights is an upscale community featuring a well-educated and relatively sophisticated population of roughly 3,375. Among its landowners and voters, San Antonio Heights overwhelmingly rejected having its jurisdiction brought into Fire Protection Service Zone Five, with more than 60 percent of those eligible to participate filing protests. San Bernardino County’s Local Agency Formation Commission, however, did not tally the San Antonio Heights protests separately from those of Upland residents and property owners. Considered overall, the protest against the combined Upland and San Antonio Heights annexation into FP-5 did not achieve the 25 percent threshold to trigger a traditional direct vote on the issue, let alone approach the 50 percent plus one vote requirement to nix the annexation, which entailed an assessment of a $148.86 per parcel being imposed on all Upland and San Antonio Heights landowners annually, outright.
A group of San Antonio Heights residents, the San Antonio Heights Homeowners Association, retained attorney Cory Briggs to file suit against the city, the county and the Local Agency Formation Commission in an effort to block the annexation. Briggs filed the suit before the July 12, 2017 deadline for the reception of protests of the annexation, pairing with it a petition for a temporary restraining order to prevent the implementation of the shuttering of the Upland Fire Department and the imposition of the special tax while the lawsuit was being litigated. At a July 10, 2017 hearing, Judge David Cohn denied the request for the restraining order, and thereafter the city, county and the county fire department proceeded full bore with the takeover, and by August 1, 2017, the city began implementing the changeover from the City of Upland’s fire department to the county fire district, including changing the logos on city fire trucks, which passed into the custody of the county, along with the city’s four fire stations. Later that year, the assessments were made and collected pursuant to the county’s annual property tax postings and billings.
Despite Judge Cohn’s early ruling rejecting the restraining order, Briggs’ suit on behalf of the San Antonio Heights Association suit survived three attempts by the county, the city and LAFCO to have it dismissed. The lawsuit proceeded apace with a few odd delays. Briggs characterized the maneuver to join San Antonio Heights together with the City of Upland merely on the strength of a request by the Upland City Council, which did not represent the citizens of San Antonio Heights, and have both annexed into an assessment district originally formed for two desert communities lying 47 miles as the crow flies and 66 miles driving distance from San Antonio Heights as a “Frankenstein Monster Tax” cobbled together to get around the tax code and California Constitution that requires a two-thirds majority on a ballot vote before a special tax can be applied. For their part, the Local Agency Formation Commission, represented by Jeffrey Dunn and Daniel Lee Richards; San Bernardino County and its fire division, represented by Donald Wagner and Laura Crane; and the City of Upland, represented by James Markman and Ginetta Gionvinco, asserted that the case of Sunset Beach vs. Orange County LAFCO provided them with the authority to proceed with the extension of the FP-5 Service Zone tax to include Upland and San Antonio Heights. In the Sunset Beach case, that small community was compelled to pay the assessments previously approved by residents of Huntington Beach, after Sunset Beach was absorbed by, that is annexed into, the City of Huntington Beach, which was contiguous to Sunset Beach on two sides.
In his final decision, Cohn held that the Local Agency Formation Commission does not have the authority to annex properties into service zones. Accordingly, Conn averred, the $148.86 assessment on property owners as a feature of fire zone expansion was imposed improperly.
“While the larger annexation of the city and San Antonio Heights into the district is valid, the narrower annexation into the service zones within the district is not,” wrote Cohn in his statement of decision. “Imposition of the tax on the taxpayers within the geographic area that was invalidly annexed to the district’s zones was therefore improper and must be enjoined.” Cohn added that “approving an annexation that is specifically prohibited by law is surely a prejudicial abuse of the agency’s discretion” and that the City of Upland, LAFCO and the county had blurred the distinction between the legally applicable definitions of district and zone in allowing the annexations to proceed and the imposition of the assessments.
While Judge Cohn’s decision was yet pending, the San Bernardino County Board of Supervisors, faced with what the county fire division’s internal auditor said in June 2018 was a $29 million budget shortfall, opened another can of worms in the FP-5 saga. By a 3-to-2 vote with supervisors Curt Hagman, Josie Gonzales and James Ramos prevailing and supervisors Janice Rutherford and Robert Lovingood dissenting, the supervisors followed then-County Fire Chief Mark Hartwig’s recommendation that the county initiate the annexing of 19,078 square miles of unincorporated land in the county into Fire Protection Service Zone Five, carrying with it the implication that as soon as it was ratified, the more than 368,000 property owners in that territory would be subject to a $157 per year assessment. In a ploy to outmaneuver the San Antonio residents who had filed suit over the 2017 annexation of Upland and San Antonio Heights into FP-5, the county included both Upland and San Antonio Heights in the annexation process involving the totality of the county’s unincorporated property.
A protest process for the annexation was held, during which 11,472 verified protest letters, entailing objections by 3.11 percent of the more than 368,000 property owners impacted and representing 1.97 percent of the assessed land value involved, were received. That fell well below the 25 percent protest threshold needed to bring about a vote and the 50 percent plus one vote requirement to prevent the annexation from occurring.
Prior to the board of supervisors’ October 17, 2018 meeting at which it voted 3-to-2 to expand Fire Prevention Zone Five to cover every part of the county that does not fall within municipal city limits, again by the same 3-to-2 margin with Ramos, Hagman and Gonzales prevailing over Lovingood and Rutherford, County Fire Chief Mark Hartwig made the rounds to dozens of unincorporated communities, pitching the assessment district expansion to residents. The $26.9 million to be produced by the assessments annually would keep the county fire division fully funded and both assure and enhance public safety, Hartwig said. In the process of seeking to justify the expansion of the assessment district, Hartwig raised the ire of tens of thousands of county residents through his suggestion that the “modern trend” was toward augmenting historic modes of funding for government function with another layer of “special” tax to enhance fire protection service. Hartwig’s contention ignored entirely the reality of the extensive escalation of firefighter remuneration over the last generation that was the primary factor involved in fire departments no longer being able to function within their allotted budgets. Moreover, it glossed over the consideration that the money many of the cities previously expended from their general funds to run their fire departments was kept by the cities after the residents within their boundaries were annexed into an assessment district and the money formerly utilized to run the various fire departments was diverted to other uses, as in the case of San Bernardino to deal with its bankruptcy or in the case of Upland to make up for shortfalls in its pension system. Simultaneously, those cities’ residents were forced to henceforth pay for a basic service – fire department operations – that had historically been a municipal feature. The only exception to this was Twentynine Palms, where the water district previously operated the fire department. The cities’ pocketing of that money and the imposition of the newly created assessments was seen as an expansion of those cities’ and the county’s taxing authority. That ran counter to the principle in the California Constitution requiring that any new tax first be approved by a majority of those to bear the burden of paying that tax.
In January it was announced that Hartwig, who had spearheaded the imposition of the assessment district onto 94 percent of the county’s landmass, would be leaving his post as San Bernardino County fire chief to take on the position of fire chief in Santa Barbara County.
Ever since, discontent with the manner in which county officials, including those with the fire department, the board of supervisors, senior county administration and the San Bernardino County Local Agency Formation Commission, have herded county residents, like cattle, into the FP-5 corral, has grown.
A contingent of county taxpayer advocates, known as the Red Brennan Group, which was named after the late local anti-tax crusader Kiernan Brennan, has sought to contest the expansion of Fire Protection Service Zone Five, inveighing against the county’s and the Local Agency Formation Commission’s action in that regard at every turn, both rhetorically and legally.
Internally, the board of supervisors has split on the fire assessment zone issue as well. In 2015, Janice Rutherford, whose Second Supervisorial District includes San Antonio Heights and roughly two-thirds of Upland, essentially supported the City of Upland and LAFCO in the closure of the Upland Fire Department, the assumption of fire service in Upland by the county fire division and the absorption of Upland and San Antonio Heights into Fire Protection Zone Five. The antipathy toward that action by an overwhelming number of San Antonio Heights residents and a significant number of Upland residents proved to be a major campaign issue in the 2018 Second District supervisor’s race in which Rutherford, despite her incumbency, was able to hang onto the supervisor’s post only by a relatively narrow margin with 53.26 percent of the vote. Her near-loss chastened Rutherford considerably, and on several occasions since then she has sought to warn her board colleagues that the use of the protest process stratagem, which does not serve as a direct vote with regard to the imposition of new taxes on those being called on to bear them in that it defines those who do not vote as being in support of the assessment regime, is likely to generate the enmity of those assessed once the assessments go into effect. Robert Lovingood, whose First Supervisorial District consists exclusively of the lion’s share of the county’s desert region and accounts for roughly three quarters of the county’s unincorporated land and is the representative of the largest number of county property owners subject to the FP-5 assessments, is likewise sensitive to the issue of having residents, essentially against their will and without what in any traditional sense is considered a vote, forced into a taxing arrangement. Rutherford and Lovingood ran head on into Hagman and Gonzales, whose Second and Fifth districts are largely urbanized, as well as the Third District’s Ramos. The Third District, which extends into an extensive portion of the county’s unincorporated desert and mountain areas, nevertheless has a population that largely lives in the established and incorporated municipal communities of Big Bear Lake, Grand Terrace, Yucca Valley, Loma Linda, Barstow, Twentynine Palms, Yucaipa, Redlands and eastern San Bernardino. Most, though not all, of the citizens of those towns and cities are not impacted by the FP-5 arrangement. However, when Supervisor Ramos was elected to the California Assembly and replaced by Supervisor Dawn Rowe, there was a shift in FP-5 tectonics. While Ramos’ tendency was to quickly accommodate the fire lobby’s wishes, Supervisor Rowe was somewhat more sensitive to the distress cries of Third District landowners.
By mid-year, it was growing obvious that the board was facing a near revolt of a significant number of county residents and property owners. After contemplating various strategies for dealing with the matter, on June 11, the supervisors, who were without the services of Hartwig to stand between them and the multitude of insurgents, made a gesture toward placating the growing legions of discontented county residents, asked county staff to offer options to replace the assessments, including possible tax measures that could be put before voters by January 2021, as well as to specify an expiration date for the assessments.
This week, on Tuesday September 24, the board of supervisors had on its agenda an item relating to discussing potential alternatives, including tax measures that would be voted upon in the traditional sense, to the $157 per year special tax that was essentially imposed by board fiat upon upwards of 94 percent of the county’s landholders under the extension of the FP-5 regime.
After orienting the board and the public to the issue, San Bernardino County Chief Executive Officer Gary McBride had San Bernardino County Fire Chief Don Trapp, who is serving in an interim capacity while the county is conducting a recruitment drive to replace Hartwig, provide a presentation with regard to FP-5. According to Trapp, Fire Protection Service Zone Five’s projected total revenue, including the $26.9 million to be produced by the expansion of the zone, would total roughly $41.5 million per year at present.
He said that there would be drastic cuts to fire division services countywide if the revenue generated by the assessments is not available to the department. A likely impact, he said, was that at least nine and as many as 17 county fire stations would be closed. Furthermore, he predicted, response times would rise, most notably in a remote area of the desert where a response time increase of nearly an hour would likely result.
Trapp said that an infusion of funding to the county fire department was needed because his department is increasingly seen by dispatchers as a “responder of first choice. Whether for homelessness, substance abuse, mental health, routine access to healthcare, many people are calling 911 today for basic services,” he said. He said the department finds much of its time and efforts monopolized by what turn out to be essentially non-emergency or non life-threatening situations.
Before the board’s discussion took place, droves of county firefighters and their allies, including union officials, alarmed at the prospect that a reversal of the imposition of the Fire Protection Service Zone Five assessments might include a firefighter salary and benefits reduction component, weighed in during the public input session of the hearing. Fastidiously, they made no mention of their generous salary and benefit packages, but did seek to cast the parameters of the discussion as ones relating to public safety, with a central tenet of their collective messages being that many residents would be endangered by fire station closures that would ensue from the erasure of the Fire Protection Service Zone Five expansion.
“Let’s be clear, a vote to eliminate FP-5 is a vote against resident safety,” said San Bernardino County Firefighter Kenneth White, speaking as a member of the union that represents him and all of the county’s other fireman, Professional Firefighters Local 935.
Firefighters said the county should keep Fire Protection Service Zone Five intact from top to bottom, with no exceptions made for any of the county’s unincorporated communities, San Antonio Heights included. No fee exemptions should be granted to any county landowners or residents outside of the 24 incorporated cities and towns in San Bernardino County, they insisted. Those that were seeking fire fee exemptions are freeloaders, the fire union members suggested, and those unwilling to shoulder their fair share of the cost of providing fire services are selfish.
Jim Grigoli, the president of the San Bernardino County Professional Firefighters Local 935, insisted that the expansion of FP-5 “wasn’t spur of the moment” and that it was a sensible effort to ensure “stable financing sources” for the county’s fire safety operations. He said the county’s reliance on spotty general fund money on an annual basis had the county fire division “literally begging for our existence every year.” He said the county should not limit the source of its fire division funding to the county general fund, which has commitments to other programs that will be shortchanged if the fire department is adequately endowed.
“If you’re going to give us general fund money, you’re going to have to take it away from somebody else,” Grigoli said. He called FP-5 “fair and equitable” and claimed that the Fire Protection Service Zone Five expansion had been implemented with just over one percent of those subject to the assessments protesting it. Grigoli lionized the county’s firefighters who are doing an admirable job of keeping the county safe with what is already an inadequate amount of funding.
One firefighter offered his opinion that it would be “reckless and irresponsible” for the board to reverse the FP-5 expansion.
Rick Denison, a Yucca Valley Councilman, said undoing the Fire Protection Zone Five arrangement “would erode the service delivery of public safety.”
Two Adelanto city officials, Mayor Gilbert Reyes and City Manager Jessie Flores, indicating that their cash-strapped city is looking for a way of getting out from under the burden of funding its fire department’s operations. Adelanto’s representatives intimated they were contemplating an application to extend FP-5 to include Adelanto’s city limits. The functional effect of that approach would impose on their residents assessments without giving them the opportunity to opt out of them through a traditional vote. They urged the board of supervisors to keep the expanded Fire Protection Service Zone Five intact and preserve their city’s ability to participate under its aegis through a protest process.
One of the few voices heard advocating against the perpetuation of the FP-5 expansion during the public input section of the hearing was that of Tom Murphy, the spokesman for the Red Brennan Group. Surrounded by a gaggle of hostile firemen who saw him as a threat to their pay rates and benefits, Murphy reminded the board that at its June meeting when it had scheduled an eventual discussion that was taking place that day, the intention was “to review the slate of options and determine which they would place on the ballot prior to January 1, 2021 and [provide] a recommended date when FP-5 would sunset. I did not hear that in the presentation. I feel like in terms of the staff work, you guys weren’t given what was promised and what was asked for.”
Murphy suggested the board as a whole was functioning as advocates for the county’s employees rather than representing the residents of the county who had elected them.
“What this issue is about from the perspective of the people in the unincorporated areas, although obviously fire department funding is integral to the argument, the bottom line issue here is taxation in accordance with the California Constitution,” Murphy said.
Supervisors Josie Gonzales and Curt Hagman emerged during the board discussion as the two elected officials most adamant that the expansion of FP-5 was justified. Both supervisors’ believed that county residents of unincorporated areas needed to pay for fire protection in a manner above and beyond what they have historically paid through their property tax, which previously fully funded the provision of fire protection service. Both suggested that the residents of the county’s remote areas should accept that they needed to pay for the continuation or preservation of fire protection service in the same way that residents in other areas of the county, such as Upland, San Bernardino, Twentynine Palms and Needles had accepted the imposition of the FP-5 tax.
When Supervisor Rutherford made the point that the Local Agency Formation Commission had simply inserted San Antonio Heights into the application for county service takeover by the expansion of Fire Protection Service Zone Five when the Upland City Council made its application on behalf of that city, Gonzales asked, “How was Upland having a city council any different from San Antonio [Heights] having the board of supervisors?”
“It’s an absolutely fair question,” said Rutherford. “It’s something we have to consider.”
“That’s right,” said Gonzales, interrupting her. “It has to be discussed.”
Rutherford continued. “But when it was before LAFCO [the San Bernardino County Local Agency Formation Commission], it was placed there by the Upland City Council,” Rutherford said. “This body [the board of supervisors, which represents San Antonio Heights as an unincorporated county area] didn’t vote to put the Heights in there. LAFCO did that on their own, without me as a representative of the Heights there, and they voted without the community having been given the opportunity to have a say.”
“That is true,” said Gonzales, “but LAFCO in itself is a legitimately recognized agency with powers of authority already granted to them to be able to make this decision.”
“I believe their process was flawed,” said Rutherford. “I don’t believe the people of the Heights…”
“Whose process?” Gonzales said, interrupting Rutherford once more.
“LAFCO,” Rutherford responded to Gonzales. “By throwing the Heights in with the Upland annexation, the residents of the Heights were not given adequate time or notice to come talk to this board or LAFCO about being included. So I think we need to go back and remedy that.”
Gonzales was insistent that all county residents have to “pay for services,” meaning specifically fire protection services, despite the property taxes they were paying in previous years having been adequate to cover those services. Gonzales then referenced the potential that cities in the county that currently have their own fire departments may some day want to ditch their departments in favor of having the county fire department fight fires in their jurisdictions. Her suggestion was that preserving FP-5 as an entity would facilitate that eventuality.
“We are hearing from the cities that are already part of the annexation or proposed additional expansions,” Gonzales said. “They play a critical role whether they don’t need our services now, but may need them later.” She said the continuation of Fire Protection Service Zone Five creates the possibility of “flexibility. That needs to be discussed and included.” She suggested the board should not be second guessing LAFCO or its decision-making process. “That agency has the ability to make decisions,” she said.
For his part, Hagman appeared to have forgotten the poignant issues that had led to the board scheduling what became this week’s discussion and hearing.
“I don’t believe in the discussions we had, whenever that board meeting was, at least in my mind, we weren’t talking about anything but FP-5 expansion at that time,” said Hagman. He then sought to steer his colleagues away from addressing the Fire Protection Service Zone Five expansion issue directly, asking, “If that’s the consensus of this board?” The county should simply brass out whatever protest there is about the expansion of FP-5 and the fashion in which it was carried out, which did not involve a traditional vote on the matter, Hagman opined. “I understand that San Antonio Heights [residents] are not happy with the process,” Hagman said. “Many of the residents of the cities are not happy with the process, but that’s a separate action than what the board did for the expansion.”
County Counsel Michelle Blakemore, the county’s head in-house attorney, said that Judge Cohn’s ruling, which the county has appealed and which has yet to be ruled on by the appellate court, invalidated the collection of the assessments from San Antonio Heights in fiscal years 2017-18 and 2018-19, but that the action the board took last October in loading all of the city’s unincorporated areas and the City of Upland and San Antonio Heights into FP-5 means that going forward San Antonio Heights is legally bound as being within Fire Protection Service Zone Five.
Nevertheless, Blakemore indicated, a mixed set of appellate court decisions for the most part have sided with voters having the right to vote on the formation of community facilities districts that involve the imposition of assessments.
In its discussion, the board considered not taking any action at present, but putting a decision off to some point in the near future when the appellate court has ruled on the county’s appeal of the San Antonio Heights lawsuit and a permanent county fire chief is in place and up to speed on the issues facing the county fire department. It also contemplated making substantial cuts to county fire department operations to bring the cost of operation into compliance with available revenue. It further considered calling off the FP-5 expansion and replacing the $27.9 million that would come its way from the expansion with an infusion of money taken from elsewhere into the general fund or creating some alternate form of taxation.
Both Rutherford and Lovingood were pushing for the board to back off of the Fire Protection Service Zone Five expansion and find some middle ground in which the county went to its residents and voters via a traditional vote, rather than a protest process, informing them of the funding gap and potential for service level reductions ahead of time, to see if the residents will willingly agree to a taxing arrangement to ensure public safety in the areas served by the county fire department.
Hagman was not prepared to do that.
“I’d like to suggest to my colleagues that no matter how ugly the sausage was made on the LAFCO-approved annexation, all the previous stuff, that’s going through litigation,” Hagman said. “What you’re asking for, Janice [Rutherford], that’s in the courts right now, for San Antonio Heights. Let’s at least get that assurity that we’re not messing with that, and we can talk about the FP-5 expansion.”
Gonzales still seemed determined to keep the taxing regime in place. She said the issue should boil down to to “How do we salvage FP-5?”
County Chief Executive Officer McBride said the county could not simply withhold essential services from the county’s residents because they are not willing to take on a greater tax burden. “It’s tough to say that if they don’t want it they’re not going to get it,” McBride said.
Gonzales then sounded resigned to having a vote and living with the results if the passage of the Fire Protection Service Zone Five expansion is not forthcoming. “Either property owners are willing to pay to have expeditious response time, or not,” she said.
At one point the board involved itself in a discussion of whether the county by taking on the responsibility of providing fire protection service to an existing city might end up accruing a portion of the cost of providing that service if the city proved delinquent in making its payments to the county. Supervisor Robert Lovingood asked if “that would require that they [cities] are fiscally sound when they make the application [for annexation into a county fire service assessment district]? Would that require that the entity is fiscally sound when they make the application [for annexation]?”
In his response, McBride let go of information that essentially confirmed that City of San Bernardino officials were purposefully prevaricating four years ago when they were insisting that the arrangement to place San Bernardino into Fire Protection Service Zone Five was not being done as a means of creating a taxing regime and thereby effectuating a convoluted transfer of revenues to redress that city’s bankruptcy. McBride told Lovingood, “No, not if they were asking the board to come into FP-5, because like happened with the City of San Bernardino when they used the generation of FP-5 revenue to not transfer as much of their general fund or their property tax money, so they did a kind of a combination,” McBride said. “That’s what allowed the City of San Bernardino to solve their bankruptcy program, largely. And Adelanto could do a similar thing, if the fire board was willing to go through a process to put them into FP-5 simultaneous with the LAFCO action.”
McBride did not, apparently, understand that his candid response contradicted a slew of statements San Bernardino city officials had made throughout 2015 and into 2016. Similarly, McBride did not seem fully attuned to the consideration that his statement lends itself to the interpretation that such annexations are a means of creating taxing structures that essentially dodge the California Constitution’s requirement that all taxes be approved by a vote of those upon whom the taxes are to be imposed.
It was that issue precisely which Rutherford picked up on.
“The protest process is not sufficient for creating a new tax,” she said. “That’s why we’re looking for a different process to get it on the ballot, so people have an affirmative vote rather than just a protest process, because the protest process isn’t simple. It’s difficult and complicated and requires extra effort from people. That is why an affirmative ballot measure is the way to go,” Rutherford said.
Ultimately, the board didn’t make any changes to the FP-5 assessment regime, but did direct staff to focus future discussions on the Fire Protection Service Zone Five expansion area, with the exception of the original Helendale /Silverlakes district plus San Antonio Heights, and provide a status update to the board on November 19. Although no precise commitment was made, it appears that the board is leaning toward allowing San Antonio Heights residents to vote on whether the assessment would apply to them.
Following the meeting, the Red Brennan Group issued a statement.
“Unelected county leadership appears to be stonewalling the county supervisors’ expressed intent,” according to the statement. “At the June 11 board of supervisors’ meeting, Supervisor Janice Rutherford clearly expressed the intent of the motion that was ultimately adopted by the board. To quote from the Supervisor ‘…the board directs the CEO and interim fire chief to explore funding mechanisms to pay for fire and emergency services in San Bernardino County to place before the voters prior to January 2021, and to return to the board within 90 days to discuss funding alternatives as well as a date upon which FP-5 will sunset.’”
The Red Brennan Group’s statement continues, “Rather than complying with the elected supervisor’s direction, county staff missed their 90 day deadline by two weeks, and also missed every deliverable included in the board’s approved motion. Instead, the board was subjected to a detailed analysis of what will happen ‘if’ FP-5 funding disappears. Instead of presenting a variety of well-thought out proposals for the board’s consideration, the county chief executive officer offered a tepid review of the different type of tax vehicles available. Ignoring the June 11 marching orders, county leadership instead placed three ‘policy considerations’ speed bumps in the supervisors’ path. ‘What is the scope of the FP-5 roll back? How much revenue do we try to replace?’ and ‘What tax methodology should we use?’ County support staff should have presented potential solutions to those questions rather than punted them back to the supervisors.”
According to the Red Brennan Group’ statement, “The supervisors fell into the trap. Rather than insisting the county immediately deliver on the requirements of the June 11 motion, the supervisors took the side path and ended up in a bureaucratic ‘slough of despond.’ In consequence, county supervisors merely agreed to limit the FP-5 discussion to the expansion areas, including San Antonio Heights, along with providing a 60-day delay for county staff to dig up more data.” The Red Brennan Group’s statement ended with, “County residents, particularly in the unincorporated areas, need to remain engaged with this issue. They must speak to their supervisors and insist the June 11 FP-5 motion is carried out in accordance with the supervisors’ direction.”
Montclair Councilwoman Trisha Martinez died Saturday evening, September 21, 2019, six months after her diagnosis with cervical cancer. She was 48.
A resident of Montclair since 1992, Martinez was a volunteer with numerous organizations prior to her successful 2014 run for city council. In addition to being active at Our Lady of Lourdes Catholic School, where her children were students, she served with the Montclair Women’s Club for 12 years and was involved with Montclair’s Senior Nutrition Program for over 12 years.
Upon acceding to the council, taking the place of Leonard Paulitz, she assumed a leadership role as the council’s education coordinator and was energetic with regard to maintaining a close working relationship with the Chaffey Joint Union High School District and Ontario-Montclair School District. She advocated for student-pedestrian safety, child welfare, and college access programs including Montclair’s award-winning and first-of-its-kind, Montclair to College program ─ a city-sponsored free tuition and books program for graduating Montclair High School students to attend Chaffey College for up to two years.
In the arena of child welfare and pedestrian safety, Martinez was the prime mover for approval of Montclair’s second-in-the-nation Distracted Walking Law ─ an ordinance adopted by the city council in 2018 prohibiting the use of an electronic device, such as a smartphone, while crossing a public street.
As a councilwoman, Martinez pushed for increases to public safety personnel to ensure community safety, while promoting community-based policing as a means to reduce overall crime in the community and redirect juvenile behavior in positive ways. She was a primary sponsor of Montclair’s Police Explorer Program for youth between the ages of 14 and 20.
Moreover, Martinez involved herself directly in the city’s recreation, human services, youth and senior services programs. Of note was her volunteer participation with, and as a councilwoman her prompting of her council colleagues in funding, Montclair’s Senior Nutrition Program, which is widely recognized as one of the best in the region. Martinez also ensured senior citizens received a variety of free or reduced-cost services, including micro-transit and discounted refuse pick-up.
During her first four years as a city council member, she garnered appointments and served as a vociferous representative of her constituents on the city’s public works and code enforcement committees as well as in her capacity as a voting member of the boards for the Inland Empire Utilities Agency, Omnitrans, and as an alternate member to the San Bernardino County Transportation Authority.
The onset of her illness was sudden and worsened rapidly. By late summer her usual energy and output had diminished, which saddened and concerned her friends and colleagues.
At her bedside in her final days, hours and minutes were her husband, Manny, and daughters Corysa and Nicola. Martinez is also survived by her grandson Roman Cisneros, and his father and Corysa’s fiancé, Nick Cisneros.
Word has reached the Sentinel that San Bernardino City Manager Teri Ledoux has provided an assurance to San Bernardino’s acting police chief, Eric McBride, that she will obtain for him a $10,000 raise over the $255,324.46 salary he is how receiving upon his promotion to full-fledged police chief.
It is anticipated that if McBride is to remain with the city, the “interim” or “acting” preface of his official title will be dropped no later than November 30. McBride‘s position in his discussion with Ledoux has been, according to City Hall insiders, that he is willing to remain in the acting police chief’s post until the city hires a successor to Jarrod Burguan, who retired as police chief on August 16. McBride will not accept the offer on the table that he succeed Burguan in the actual police chief’s capacity, the Sentinel is told, unless the city ups the pay he his currently receiving.
McBride and Ledoux have reportedly worked out an agreement that she will intercede on his behalf to convince the city council to take McBride up on his offer to remain as police chief for a minimum of two years with an option to remain another year if the city confers upon him a contract with a $265,324.46 annual salary, subject to a 3.5 percent increase every August 1, together with annual benefits of at least $51,750. This would mean that McBride will receive total annual compensation in the amount of at least $317,074.46 during his first year as police chief.
Ledoux has agreed to inform the city council that if the council does not agree to the $265,324.46 annual salary figure, McBride will retire.
Burguan went out on an extended leave to undergo knee surgery in February, at which point he recommended McBride as his temporary replacement as chief. Ultimately, for reasons that are not entirely clear, Burguan elected to retire last month at the age of 48. McBride is more than three years older than Burguan. With the traditional minimum retirement age for police officers being 50, McBride is eligible to retire at this point, and will have logged 28 years as a police officer next month, qualifying him for a pension equal to 82 percent of the $223,050.91 per year level of pay he was receiving as assistant police chief, which calculates out to $182,901.74. Thus, his statement that he would choose to retire if he is not given the salary he has requested has a degree of credibility.
Ledoux’s willingness to go to bat for McBride is not based solely on her belief that McBride is the best fit for the police chief position. By obtaining a raise for McBride, she will obtain a raise for herself. Ledoux’s contract as city manager carries a stipulation that she is to be paid five percent more than the police chief. In July, when she was hired, she was given a salary of $259,674, with benefits running to roughly $46,000 per year. On August 1, when McBride’s pay as acting police chief was upped by 3.5 percent to $265,324.46, the city simultaneously increased Ledoux’s salary by the same 5 percent, pushing it to $272.657.70. If McBride is granted the $265,324.46 he is seeking and which Ledoux is now set to recommend, the city will be contractually obligated to increase her salary to $278,590.68.
Ledoux has come up in the world over the last two years. In October 2017, she was employed as an administrative assistant to the city manager in La Verne, in which capacity she was receiving a yearly salary of $114,437.10 with $22,645.25 in benefits. That month, then-San Bernardino City Manager Andrea Travis-Miller persuaded Ledoux to come to work for San Bernardino and take on the role of assistant city manager. The pay range for assistant city manager in San Bernardino ran from $172,000 to $213,000 yearly. Travis-Miller arranged for Ledoux to be brought in at a significantly higher salary step than was normally provided to a newly-hired assistant city manager, such that Ledoux’s hiring in San Bernardino represented a salary boost for her well in excess of $70,000 annually. Additionally, the benefits provided to Ledoux in San Bernardino were, at over $40,000 annually, close to double those provided her in La Verne.
In April of this year, the San Bernardino City Council placed Travis-Miller on administrative leave and elevated Ledoux to the post of acting city manager, bumping her annual salary up to $212,000. In May, the council fired Travis-Miller.
An issue in play here is that neither Ledoux, 62, nor McBride, now 52, is interested in remaining with the City of San Bernardino in a long term capacity. Ledoux intends to leave the employ of San Bernardino in January 2021. McBride is not likely to remain with the city past the end of 2022. San Bernardino has been plagued over the years with a lack of continuity in its leadership.
Since 1996 San Bernardino has burned through more than a half dozen city managers – Shauna Clark, Fred Wilson, Mark Weinberg, Charles McNeely, Travis-Miller in a first stint as acting city manager, Allen Parker, Burguan, who served for slightly more than month as acting city manager in 2016, Mark Scott, and Travis-Miller in her second tour of duty, followed by Ledoux, with the average tenure in office being two years and four months. There has been only slightly better stability in the San Bernardino police chief position. Burguan succeeded Robert Handy in 2013. Handy was in place a total of 26 months. Keith Kilmer, who preceded Handy, was in place 21 months. Michael Bildt was police chief from 2006 until 2009. Garret Zimmon remained as chief for nearly four years from 2002 until 2006. Lee Dean lasted as police chief from 1996 to 2001. Wayne Harp was in place from 1995 until 1996. Daniel Robbins remained in the police chief role from 1989 to 1995. Donald Burnett was San Bernardino police chief from 1986 until 1989.
Other than the likelihood that he will not remain in place as police chief very long, depriving the city of the sustained continuity of leadership the city has consistently lacked over the last generation, McBride boasts an impressive set of credentials.
Though he did not attend college out of high school, having enlisted in the Marine Corps at the age of 18, later in life McBride obtained a bachelor of science degree in political science from California Baptist University and a master of science degree in criminal justice from Troy University, augmented by a certificate in emergency management from Auburn University, as well as certification from the FBI National Academy and certification in executive leadership from the Naval Postgraduate School. He also graduated from the Police Officers and Standards Training Command College in its 56th class. He spent six years and six months in the Marines, mostly as an anti-tank assault guided missileman in the infantry. He began with the San Bernardino Police Department as a patrol officer in 1991, with assignments as a member of the special weapons and assault team and as a field training officer. In 2002, he promoted to detective, working in the department’s narcotics division. He advanced to sergeant in 2004, in which rank he worked as a patrol supervisor, as a special weapons and assault team leader, and in internal affairs. He achieved the rank of lieutenant in 2011, overseeing the special events, emergency operations, records and dispatch divisions. He spent a mere five months as captain in 2014, at which point he was appointed assistant chief of police.
In addition, as a resident of the City of Hemet, McBride served a short time on that city’s planning commission in 2006, and later that year was elected to the Hemet City Council, subsequently serving a stint as mayor. While he was in his elected capacity with Hemet, McBride was appointed as a voting member of the Riverside Transit Agency as well as a member and later vice-chairman of the California League of Cities Public Safety Policy Committee.
In 2015, the City of El Monte hired McBride as its police chief, but after criticism regarding his participation in what was deemed aggressive anti-illegal immigration policies in Hemet, McBride opted not to take the job in that city in which roughly 69 percent, or 79,754 of its 115,586 population self-identifies as Latino.
By Edna St. Vincent Millay
The Sentinel is reliably informed San Bernardino County Supervisor Janice Rutherford and San Bernardino County Assessor Bob Dutton have hatched a plan to effectuate what they both believe will be an exchange between them of their current posts with the 2022 election.
Rutherford’s exit as supervisor in another three years is necessitated by the term limit requirement on supervisors put into the county charter as a consequence of the 2006 passage of Measure P, which was sponsored by then-Second District Supervisor Paul Biane as a means of increasing the salary of each of the members of the board of supervisors from $99,000 per year to $151,000 per year at that time. As part of the strategy of selling the measure to the voters, Biane and his two closest political associates, Matt Brown and Tim Johnson, incorporated into the measure a term limit provision that reduced the number of times an individual could serve on the board to three four-year terms.
Biane, a one-time Rancho Cucamonga councilman who had first been elected to the board of supervisors in 2002 and thereafter went on to become first the vice chairman and eventually chairman of the Republican Central Committee as well as of the board of supervisors, in 2006 had ambitions for higher office beyond supervisor, but was looking to remain in the office he then held at least until another realistic opportunity for gaining election in the California legislature or Congress presented itself. Because Measure P was not applicable prior to its passage, Biane’s first two terms on the board did not fall under the term restriction, and therefore he was eligible to run for Second District supervisor again in 2010, 2014 and 2018.
Four years after the passage of Measure P, Biane in 2010 sought reelection. He had, however, been severely damaged by the political scandal then enveloping Bill Postmus, a former member of the board of supervisors who in 2006 had successfully run for county assessor. Biane’s close affiliation with Postmus, including during the crucial 2004 to 2006 time period when Postmus was chairman of both the board of supervisors and the San Bernardino County Republican Central Committee and Biane was the vice chairman of both the board of supervisors and the San Bernardino County Republican Central Committee, redounded to his detriment. In the June 2010 primary, he managed to outdistance his main challenger, then-Fontana City Councilwoman Janice Rutherford, 14,184 votes to 13,169 votes, but with four other candidates in the race, Biane’s total accounted only for 34.18 percent of the vote, and he was forced into a run-off against Rutherford, who had claimed second place with 31.74 percent.
Over the next five months, more and more details with regard to the Postmus scandal emerged, and Rutherford was not bashful about using those revelations in her campaign against Biane. Ultimately, in the run-off between them held in conjunction with the November 2, 2010 general election, Rutherford prevailed 44,166 votes, or 51.81 percent to Biane’s 41,086 votes or 48.19 percent.
In 2014, Rutherford was reelected handily in a contest against Randolph Beasley. That same year, one-time Rancho Cucamonga Councilman Robert Dutton, whose time on the city council had corresponded with that of Biane and who went on to serve as a California assemblyman from 2002 until 2004 and then served eight years in the California State Senate from 2004 until 2012, vied successfully for San Bernardino County assessor/recorder.
In 2018, Dutton was unopposed in the race for assessor/recorder. Rutherford faced a stiff challenge from then-40th District Assemblyman Mark Steinorth. Rutherford emerged victorious, with 30,705 votes or 53.26 percent to Steinorth’s 26,943 votes or 46.74 percent.
Both Dutton and Rutherford are entrenched members of the San Bernardino County Republican establishment. Though neither the assessor/recorder post nor Dutton are constrained by term limits, making him eligible to run for reelection as assessor in 2022 and beyond, he is now 69 years old, making it advisable for him to make a move toward becoming a supervisor at the earliest opportunity, before he is well advanced into his eighth decade of earthly existence. Moreover, those around Dutton believe he has adequate money banked in his political campaign war chest and fundraising capability beyond that, along with name recognition, to ensure his viability as a candidate for supervisor.
The county assessor’s position pays $233,021.71 in annual salary and $89,732.68 in benefits, for a total annual compensation of $322,754.39. The county supervisor’s post provides at present $174,262.24 in salary, $18,373.95 in other remuneration and $70,977.96 in benefits for a total annual compensation of $263,614.15 annually.
While Dutton would see a reduction of nearly $60,000 in his total annual compensation by leaving the assessor’s office and would also be giving up the position of being the county’s highest taxing authority, a post with both prestige and a certain degree of leverage with regard to enhancing his political fundraising ability, Dutton has already served in the state legislature and is termed out as a state senator. Though he could yet run for the Assembly or Congress, his ambition for that level of higher office appears to have been sated, and the position of county supervisor would allow him to remain local without having to travel regularly to Sacramento or Washington, D.C., and occupy a position of prominence and far-reaching power. It would also allow him to install John Mannerino, Dutton’s longtime business and political associate, into the high-paying position of his chief-of-staff.
Dutton and Rutherford believe that their endorsement of each other for the supervisorial and assessor posts will capture the mutual support of the other’s backers, enhance their electability and head off at least some of the competition, making each the odds-on favorite to capture the posts they covet.
Some see in Rutherford’s and Dutton’s ambition of monopolizing high ranking governmental positions between them a clash with the Republican values they espouse. Ideological purists with the GOP advocate for limited government and seek from politicians empathy with and an understanding of the rigors and travails of entrepreneurship, the difficulties and challenges of running a business, particular in an environment beset with what some or most Republicans consider to be excessive governmental regulation and taxation. While Dutton earlier in his life was a businessman involved in several of the companies established on the west end of San Bernardino County by his father, Ted Dutton, he has for more than 20 years, with the exception of the 2012-to-2014 gap, largely been a creature of the government. Rutherford can lay claim to nothing even approaching Dutton’s status as a successful entrepreneur, with her most celebrated venture in the private sector having resulted in abject failure, with vendors and employees having been stiffed for more than $100,000 when the enterprise she had undertaken with her husband went bust. Her résumé and work history largely feature employment with government entities or affiliations in some fashion involving government. The most noteworthy of these assignments other than those elected positions she has held pertain to her employment in the office of Bill Leonard, a former California state senator and member of the California Board of Equalization. As an institutional government employee, in particular one who has gravitated toward higher-paying assignments including ones in which her authority extends to setting the pay grades for government employees as well as herself, and her thereby demonstrated uncommon degree of generosity with taxpayer funds, Rutherford has come to be resented by a contingent of Republican kindred as someone largely out of step with their values and interests.
While both Rutherford and Dutton are in no hurry to have their backroom agreement to trade county offices and support each other in their respective upcoming 2022 campaigns spread before the general public, a number of other county politicians know about the arrangement, including some of those who are themselves interested in the Second District supervisor’s and county assessor’s posts.
The Second District encompasses the northern two-thirds of Upland, all of Rancho Cucamonga, the westernmost portion of Fontana and the unincorporated communities of San Antonio Heights, Mt. Baldy, Lytle Creek, Devore, Rim of the World, Crestline, Lake Gregory, San Moritz, Lake Arrowhead, Blue Jay, Cedarpines Park, the Valley of Enchantment and Green Valley Lake.
State Senator Mike Morrell has designs on the Second District supervisor’s office, as does former Assemblyman Marc Steinorth, who ran a strong campaign against Rutherford last year. In addition, Ken Petschow, an airline pilot and San Antonio Heights resident who declared his candidacy for Second District supervisor in 2018 but withdrew without filing nomination papers after Rutherford made a commitment of future political support if he would step aside, may seek to cash that chit in come 2022. Were Petschow to do so, it would put Rutherford in an awkward position, as she could not make good on that promise and fulfill her pledge to Dutton at the same time.
One of Rutherford’s current board colleagues, Josie Gonzales, who like Rutherford was once a member of the Fontana City Council, will term out of office next year. She, too, is said to be interested in running for assessor in 2022. Rutherford’s successful reelection effort in 2018 very nearly depleted her campaign treasury. This is in contrast to Gonzales’s campaign fund, which at present exceeds $800,000.
This morning, the scheduled sentencing of Charles Merritt on his convictions in June of killing all four of the members of the McStay family in 2010 was postponed until December 13.
After a five-month trial, the jury in the matter on June 11 convicted Merritt, 62, of the first-degree murders of his one-time business associate Joseph McStay, then 40, McStay’s then-43-year-old wife Summer, and the couple’s two children, 4-year-old Gianni and 3-year-old Joseph, Jr.
Phone records and computer activity placed the family at their Fallbrook home on the evening of February 4, 2010. A call placed from Joseph McStay, Sr.’s cell phone at 8:28 that evening to Merritt was the last indication that the family was alive. Thereafter, all phone activity from Joseph, Sr., who was a prolific user of his cell phone, and Summer ceased.
The family had inexplicably vanished, with the only trace seeming to be what many interpreted as the family’s departure to Mexico, as the family vehicle was found abandoned in a mall parking lot less than a half mile from the international border in San Ysidro on the night of February 8, 2010, and a grainy video taken by a camera trained southward from the American side of the pedestrian crossing into Mexico at San Ysidro that evening depicted a family of four – a man, woman and two small children – seen from behind as they headed across the border.
The family was never heard from again. In November 2013, the corpses of three of the family members – Joseph Sr., Summer and Gianni – were found in shallow graves in the desert between Victorville and Oro Grande. Joseph, Jr.’s body had been unearthed by animal predators, and only minute remnants of his bones were found scattered in the area.
The gravesite was some eight miles from where Merritt had spent much of his adolescence in the 1970s, when he attended Apple Valley High School for three years.
Investigators gathered evidence and arrested Merritt in November 2014, just shy of one year after the bodies were found. Prosecutors assembled an entirely circumstantial case against Merritt based upon oftentimes sketchy evidence, including a poor quality video from a neighbor’s security camera of a vehicle which sheriff’s department investigators and prosecutors maintained was Merritt’s work truck leaving the McStay residence in Fallbrook at 7:48 p.m. on the night of February 4, 2010. Defense attorneys Jim McGee, Raj Maline and Jacob Guerard, however, contested that suggestion. The photogrammetrist the district attorney’s office first hired to evaluate that evidence and present findings the prosecution believed would unequivocally demonstrate Merritt was present at the McStay home when the family was killed, the world’s leading expert on photographic and visual analysis, Dr. Leonid Rudin, came to the opposite conclusion, offering testimony to indicate the vehicle in question was not Merritt’s truck.
Despite that setback for the prosecution, it was able to present evidence demonstrating that Merritt had written himself checks on Joseph McStay’s business account in the days just before, the day of and the days after the family’s disappearance, the last two of which were backdated to February 4, 2010. Merritt was also demonstrated to have called the customer service desk for QuickBooks, an accounting software company, on February 9 and February 10, 2010, identifying himself as Joseph McStay and attempting to have data relating to Joseph McStay’s business account electronically purged. The prosecution further presented cell phone account data to show that Merritt was in the High Desert on February 6, 2010 using his cell phone late that morning and early afternoon while his phone was making contact with a cellular service tower high on a mountain overlooking the expanse of desert where the graves were located. Prosecutors maintained that Merritt was burying the family on February 6, 2010.
After finding Merritt guilty of the murders of the entire family, the jury delivered sentencing recommendations of life without the possibility of parole for the killing of Joseph McStay, Sr. and death for the murders of Summer, Gianni and Joseph, Jr.
It was widely anticipated that the defense team would file motions for a reduction of the penalties from death to life without the possibility of parole as well as motions for a new trial and an appeal of the verdicts.
Such motions did not materialize, however, and upon taking up the matter this morning, Judge Michael A. Smith heard that both McGee and Guerard wanted to be relieved as Merritt’s counsel. The rationale for Guerard’s request was not provided. McGee claimed some order of a conflict in representing Merritt going forward. Maline stated, “I don’t feel I have a conflict,” but asked for a postponement in the sentencing because, he said, the substance of the motions to be made on Merritt’s behalf “deals with a lot of the work that was done by Mr. McGee.”
At that point, McGee, Guerard and Maline accompanied Merritt into a private conference with Judge Smith in his judicial chambers.
They subsequently emerged, at which point Judge Smith said, “There is a conflict between Mr. Merritt and Mr. McGee that would keep Mr. McGee from representing Mr. Merritt.”
Accordingly, Judge Smith said, he was going to grant a continuance for the defense team, giving it “time to investigate where they need to go. None of the motions have been filed, so the defense does need additional time to file motions for a new trial and to reduce the sentence. We tentatively discussed going over to December 13 for a hearing on any post-conviction motions and sentencing.”
Judge Smith then said he would hold an in-camera “conference on whether or not Mr. McGee should be relieved on November 1 at 1:30.” Judge Smith said that exchange would deal with “any issues to be addressed and whether there is a conflict, and Mr. McGee should be relieved. Mr. Merritt is entitled to a conflict-free counsel.”
Judge Smith, without divulging what had been said during the in-camera exchange in his chambers, offered a tantalizing glimpse of what might have been at issue when he alluded to “pitting one counsel against another. That is a concern if we reach the point where Mr. McGee says, ‘Despite whatever the discussions are, I feel I have a conflict and cannot continue.’”
Judge Smith said, “I believe we need to at least examine or address that issue, whether Mr. McGee can continue.” He noted that McGee and Maline are no longer law partners and that since “they are different offices and practices, that might not be as much of a problem.” While the judge hinted that some differences may have arisen between McGee and Maline, he did not state so explicitly.
Supervising Deputy District Attorney Britt Imes, who headed the team prosecuting Merritt that also included Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez, objected to the delay, saying the verdict had been rendered this spring and the defense had “three months to sort out these issues. This delay is excessive and unnecessary.”
“I agree,” Judge Smith said. “I was surprised that at a minimum the motion to reduce the sentence had not been filed. Yet, for Mr. Merritt the issue is Mr. McGee’s ability to participate in those motions and that is one reason for the delay. There is not an indefinite period that they get to do that. While regrettable, I think it is necessary.”
Judge Smith ordered the defense to have its motions filed by November 22 and a response from the prosecution to be filed by December 9. A hearing on the post conviction motions is to be heard on December 13 at 8:30 a.m.
As he took leave of the courtroom, McGee declined to provide any statement to the Sentinel with regard to what constituted the conflict.
After the hearing, an individual close to the defense told the Sentinel that McGee believed “heart and soul with no wavering” that the alternative suspect in the killings the defense had presented at trial, “Dan Kavanaugh, was involved directly or orchestrated the murders and that Chase had no involvement whatsoever.”
McGee had dedicated more than a year of his life to preparing for the trial and in representing Merritt during the trial, the individual said. “He was staggering under the workload and lack of pay. He has better things to do, now that the trial is over and it’s not his bailiwick anymore.” It was suggested to the Sentinel that McGee, who was a prosecutor for most of his career before becoming a defense attorney, may be contemplating a run for judge, and that is what the conflict stems from, as the 2020 election year is approaching.
On the day that Brezhnev died
I dug and furrowed in my garden
A windswept but warm fall day
Planting radishes for a winter harvest
On my hands and knees I toiled
The blue cloud swirled sky above me
Cast shadows I barely noticed
As I plied the fertile California soil
The birds heading south seemed
Perhaps to me to be Arctic gulls and
Cars traversed the streets of Moscow as usual
On the day that Brezhnev died
November 10, 1982
I WAS HITCHHIKING OUT THE RAMONA EXPRESSWAY, standing to the side of some eucalyptus trees. The sun was slight summer south, so I was full under it. I stood there near an hour after I was left off by this guy pulling a set of hay barges. Alfalfa he was carrying, the sweet-smelling kind they grow in those drained marshes out near the lake.
It was past noon and pushing one o’clock, with the sun getting hotter and hotter, beating down on my head. I told myself, if none of the coming line of cars stopped, I was going over to the shade on the other side of those trees to lie down and take a nap until it got cooler. The first one of the bunch pulled right over when he saw me though, off onto the shoulder, blowing dust and all, a blond guy in a pickup truck. I climbed in. He looked to be about my age, with the sun glaring in his face through the windshield. He wore glasses. He waited for the last of the cars that had been behind him to pass, and he pulled out onto the roadway. “I’m Larry,” he said.
He continued out Ramona west, the wind tearing in through the side windows, wrapping my hair all around my head, slapping my ears and eyes and neck. Larry passed all the cars that had gotten ahead of him when he stopped for me. When we passed the first one in line he gave it a long lookover in his rearview mirror. We traveled on another eight or nine miles, the dairies and pastures streaming by with the mountains and the lake in the distance. In all that time we didn’t talk. He had given me his name and that was it. At first I tried to think of something to say, something that would sound natural. I couldn’t, so I just watched the scenery. I’ve been out the Ramona Expressway a hundred times, more than that probably, but I never paid attention to everything out that way like I did then. I noticed lots of things I had never seen before, like moss backing on old fence posts and water flowers in the watering holes and troughs near the mangers. I felt that comfortable in that truck.
We’d gone through Seedwood, and just past the hills where the Indians had their watering holes long before white men were sinking wells in California. Larry broke our silence to ask me where I was headed. I came away from trying the quickness of my vision on the gold and blue butterflies the truck missed to tell him the other side of Dry Dollar Lake. He said he had to stop and pick something up about a mile ahead, but that he was continuing out to Watershed Falls. I said sure, anything that would get me that close.
A ways further he slowed down and turned off into a dirt road. It was fairly smooth as dirt roads go, and the few bottom-threatening dips there were Larry handled with a familiar ease. When I looked behind I could see his wheels churned up only a little dust. The dirt road continued for a parched distance, inclining to pass over a low bluff with green but still sparse chaparral along the ridge. Then we were heading down into a narrow arroyo, and the truck bounced and swayed side to side. At the bottom a slight streambed began alongside the road and continued beside for the length we went. There was only the hint of a stream in it though, nothing more than a trickle.
Visible in the distance was a wooden house, a cabin, around which were set other slight structures, shadow grey against the bright gold scape. In closer I could see they were wooden shacks higher or near as high as they were long, a few smaller sheds, and chicken coops. A station wagon was parked in front of the cabin. There were trees further off, healthy ones, close together, but not quite a grove. The few treas near the house were stark, mostly leafless. The cages close enough for me to see were empty, though here and there a hen scurried, scratched and pecked at the dry earth.
Larry pulled in close to the house, to the side of the station wagon. He said he just had to pick something up, but I could come in for a drink of water. As we were stepping up onto the wood porch side by side with a few of the hens clucking behind us a young woman with a baby in her arms opened the cabin door. She was half turned, saying goodbye to someone inside. We waited for her to come out, and she stepped straightaway for the station wagon, sending Larry a nod. We went into the cabin.
Across the room was a woman in a wheelchair. My being there didn’t take her aback any. She addressed herself straight off to Larry. “I told her to go and get that money out of the bank right now,” she said. Larry offered no reply. Outside the engine started and then I could hear the tires turning out on the earthen driveway. “I told her to go and get that money out of the bank afore he dies.”
Larry seemed to be not listening to her, and he pointed across the room to the faucet. “Over there. There’s some glasses in the cupboard,” he said.
“It’s not his money,” the woman continued. “She should get it before the State does.”
“I know all that, Mother,” Larry said. There was a tinge of anger in his voice. He started into the adjoining room.
“She should get that money out of the bank right now,” the woman repeated.
I went to where Larry had directed me, at the far side of the room. The faucet was built over a wooden sink. I had to pump a side crank to prime up the pressure in the line. The woman rewheeled and was regarding me in shifty looks up and down. I didn’t look her way back, just got a tall glass and filled it. I came away a few feet from the sink and still didn’t look right at her, but out the window beside the door we had come in. The station wagon climbed the last of the slope to the narrow gorge at the crest and then disappeared over the other side. The water, so deep cold it like froze my throat, tasted clean as from a mountain spring in June.
Larry came out from the other room with a tool box. He set it down heavily onto the counter and went straight to looking in one of the drawers beneath the counter for something more. He popped up the tool box lid and set something in it, a screwdriver or something, and shuffled some more in the drawer and then in another. “Where’s that flashlight?” he asked.
The old woman wheeled herself back and then around the table, then reached behind the sofa. I had a real clear look at her then, when she was looking to the side and when she was handing the flashlight to Larry. You could see she was his mother alright. Their hair was the same flaxen, except hers had grey in it, and their eyes were keen blue, like Texas Germans. She told him not to lose it, the electricity was always going out.
He set the flashlight under the top tray and closed the toolbox back up. I set the empty glass on the wooden drainboard and followed him out. We got in the truck and drove back out to the expressway with the tool box rattling and sliding on the seat between us at the sharper bends in the road.. We never passed the station wagon in all the six or seven miles he took me out further west like I thought we might. We didn’t say anything either, just drove. He let me off just above the flood control dam at the turnoff to the hatchery. A little more than an hour later I got another ride to where I only needed to walk about a mile to the trailhead for the cabins. I was back before four.
The whiteplume wirelettuce is considered to be among the most advanced and complex of the dicots, which are flowering plants that mature from two, rather than one, embryonic leave.
In central and southern California it has a glabrous or puberulent inflorescence, meaning its flowers or flower clusters are smooth or covered in soft, downy hair.
The whiteplume wirelettuce has appressed phyllaries, that is bracts that are very close together. A bract is a specialized leaf, different from foliage leaves, that serves to protect the plant’s reproductive structure. The fruit of the stephanomeria exigua that is protected encloses a seed in a hard shell that is roughly 2.3 millimeter to 3.1 millimeters in diameter.
The pollinators for this plant consist of insects and the wind.
It is thought to be the parent species of Stephanomeria malheurensis (Malheur wirelettuce), an endangered plant species found only in southern Oregon.