San Bernardino County Fire officials have made a decision to permanently shutter the Wonder Valley Fire Station, foreclosing whatever faint glimmer of hope the residents of this remote area had that the facility would be reopened.
In September 2017 county fire department administrators moved precipitously to shift operations and personnel, which then included Battalion Chief Mike Snow, from Fire Station 45 on Amboy Road next to the community center in Wonder Valley to the Twentynine Palms station on Adobe Road south of Twentynine Palms Highway, which is approximately 11 miles away.
Officials said the move was prompted by the results of an analysis done earlier that month on water drawn from the well Station 45 uses. Lab tests showed, the department said, that the water was contaminated with arsenic, hexavalent chromium and fluoride at levels approaching or exceeding 1,000 times the threshold deemed safe for human use and consumption. The department said it could not countenance subjecting its firefighting personnel to the health threat that contamination posed.
There were conflicting reports as to whether or not testing done on other wells in Wonder Valley showed contamination levels consistent with that in the well used by the fire station for its water supply. The closing of Fire Station 45 brought immediate protests from some Wonder Valley residents. The department, which examined options that included putting a water filtering system into place to determining if it would reduce the contaminant level sufficiently to render the water safe, offered a vague statement to the effect that if and when the water concern was mitigated, the county fire protection division would re-evaluate the use of Station 45 in Wonder Valley. For the last 23 months, the fire department has continued to service the Wonder Valley community from Twentynine Palms.
The announcement that the county fire department would not reopen Fire Station 45, after an extended interim wherein the eventual reopening was suggested by several circumstances, was particularly disappointing to the Wonder Valley populace, which has historically been treated by the county like a sometimes-ignored and sometimes-abused stepchild.
Wonder Valley is an unincorporated community roughly 10 miles east of the City of Twentynine Palms and approximately 15 miles northeast of the east entrance to Joshua Tree National Park. The town lies south of the Sheep Hole Mountains and Bullion Mountains and north of the Pinto Mountains at an elevation range of 1,200 feet to 1,800 feet near the confluence of the higher-elevation Mojave Desert and the lower-elevation Colorado Desert. Both Amboy Road and State Route 62 run through Wonder Valley and exist as the community’s primary paved roads, with the vast majority of the community’s streets existing as dirt roads or ones that have been oiled and impacted. Highway 62 extends some 100 miles east, all the way to the Arizona border at Parker, Arizona. Traveling west on Highway 62 from Wonder Valley will take the traveler to Yucca Valley where it then bends south and extends to Palm Springs, some 75 miles distant. Traveling Amboy Road in an easterly direction from Wonder Valley leads toward Laughlin and Las Vegas in Nevada (roughly 125 miles and 150 miles, respectively). Following it in the other direction will take the traveler toward Death Valley.
The 7-square-mile core of Wonder Valley, i.e., the town, boasts a population of some 650. Though the rest of Wonder Valley is sparsely populated, overall it boasts an estimated population of 4,000 throughout its more than 175-square mile expanse. Some 3,000 recreational cabins and more permanent living structures built by homesteaders between 1938 and the mid-1960s under the Small Tract Act, also known as the “Baby Homestead Act,” once dotted the landscape, though hundreds were demolished and removed as part of a clean-up effort over the last two decades. Most of these remaining structures, sometimes called “jackrabbit homesteads,” are vacant or abandoned. Wonder Valley lies within the county’s Third Supervisorial District, currently overseen by Supervisor Dawn Rowe.
Until 2005 the rural community managed on its own, with the augmentation funding due it from the state and county. For more than half of a century it fended for itself with regard to the provision of basic fire protection service, utilizing a paid call firefighting staff working out of its traditional Wonder Valley Fire Station.
For the better part of those fifty years, the volunteer fire department’s primary capital vehicle was its water tender, which holds thousands of gallons of water. The water tender had been custom built by the volunteer firefighters and other locals, a unique adaptation of an existing firetruck that had welded onto its body and frame water tanks capable of storing over 2,000 gallons of water.
After the community voted to become a special county fire district tax zone, the volunteer fire department was subsumed by the county fire department 13 years ago. The San Bernardino County Fire Department operated Fire Station 45, located at 80526 Amboy Road, manned with both on-call firefighters and volunteers along with two professional, full-time firefighters, serving under the command of a county fire division commander.
In 2016, a year before the county fire department’s abandonment of Fire Station 45, the county fire department removed the 2,000-gallon water tender from Wonder Valley. In its stead, the county substituted a modern brush patrol engine, which carries 250 gallons. County official contend that the brush patrol engine provides adequate means of a first response and carries enough water to initiate a fight against a fire, while more water and fire suppression capability will be in transit, in the case of Wonder Valley, from the Twentynine Palms and the Marine Corps Air Ground Combat Center’s fire department. Firefighters from the Marine base, with their more extensive firefighting apparatus, can reach Wonder Valley within ten to fifteen minutes, county officials insist. Mutual aid, that is, an agreement by which fire agencies have committed to assist one another, provides Wonder Valley with an assurance that the community will not be neglected or overlooked in a dire, or even less than dire, emergency, according to county officials.
The custom-built Wonder Valley tender was slower than the brush patrol vehicles, which in any event were in most cases on station in Wonder Valley previously and were generally the first vehicles to respond to fire calls.
Still the same, many Wonder Valley residents believe the county slighted them and engaged in a serious oversight by removing the tender, which provided a depth of immediate protection in the event of a conflagration. It has been pointed out that the 250 gallons of water in a brush patrol truck can be exhausted in less than three minutes and that knocking down a structure fire, such as one at a residence, will most certainly require more than 250 gallons of water.
Between 2006 and 2018, Wonder Valley property owners paid a fire service assessment of roughly $37 annually. In 2016, the San Bernardino County Fire Department proposed an increase of that assessment to $321 to supply the community with an additional two-man crew or $489 for a 3-man crew. assessments of that magnitude were pretty much out of the question as being out of the affordability range for most Wonder Valley residents. The matter became moot with the 2017 closure of Fire Station 45.
Last October, the county put the entirety of unincorporated San Bernardino County in Fire Service Zone 5, imposing on all property owners that lie outside of 23 of the county’s 27 cities, as well as the property owners in Upland, San Bernardino, Twentynine Palms and Needles, an annual per parcel assessment of $157. In this way, the residents of Wonder Valley have seen the fire service assessment they agreed to pay to the county for fire protection in 2005 zoom from $37 per year to $157 annually, while the county has just permanently closed out the town’s fire station.
The best available data shows that since the closure of Fire Station 45, the average response time to a call for emergency service in Wonder Valley has increased by more than four minutes.
In the announcement that Fire Station 45 is to remain permanently closed as a county fire department facility, local residents detected evidence that the September 2017 report of the contamination in the well serving the fire station was a ruse to justify the closure. They noted that in the spring of 2017, the county gave indication, as part of its budget for 2017-18, that it was going to close out the Wonder Valley Fire Station. That was well ahead of the September 2017 “discovery” of the contamination at the fire station’s well, they noted. When the first version of the county budget was released in May 2017, it did not include funding for the Wonder Valley fire station. But in finalizing the budget, county supervisors elected to maintain budgeting for the station after it was demonstrated that the call volume there justified its continuing operation.
This week, the department gave indication in making the announcement of the fire station’s permanent closure that the station will in short order have another occupant, a non-profit service provider that was not further specified. That a county agency is making the structure available for use or habitation by another entity reveals that the claimed contamination issue there is either nonexistent or not as serious as was claimed, residents pointed out, since the county would suffer liability if any harm were to come to those using the facility based upon the county having cleared it for use.
By Mark Gutglueck
The City of San Bernardino has withheld payment of former City Manager Andrea Travis Miller’s severance payment for more than two months following her forced departure.
While members of the mayor’s political team are casting about for some basis upon which to forego making that payment, the terms of Travis-Miller’s contract stipulated that a departure disbursement equal to one year’s salary be conferred upon her in the case of early termination of her contract. If the theory under which the city is withholding the payment does not hold up, the city will very likely be forced to pay her not only the severance itself, but her legal costs, including the amounts billed by her attorney in her effort to be made whole.
After the city council, which at that time was down to six-seventh strength, in a closed-session discussion on April 4 divided 3-to-3 in a vote to place Travis-Miller on leave, Mayor John Valdivia, whose authority does not include a vote on most matters but allows him to break a tie and veto both 4-to-3 and 3-to-2 votes, broke that deadlock, resulting in Travis-Miller’s paid suspension. Valdivia had been on the outs with Travis-Miller since the 2018 election season during which he had successfully vied against and unseated former Mayor Carey Davis. It was Valdivia’s belief that Travis-Miller had militated against him behind the scenes during that race.
In May, a special election was held to fill the gap on the council that had been created when Valdivia was obliged in December to resign his position as Third Ward councilman to move into the mayor’s post. Handily elected was Juan Figueroa, who was backed by Valdivia’s political machine, which provided him with $60,000 in money that either originated with Valdivia’s campaign fund or came to him through donors who are also Valdivia’s political backers. On May 29, the day Figueroa was sworn into office, the council almost immediately adjourned into a closed session, one conducted outside the spection and earshot of the public. At that point, Valdivia had undisputed control over the council, and the council voted 5-to-2, with council members Sandra Ibarra, Ted Sanchez, Henry Nickel, Bessine Richard and Figueroa prevailing, augmented by a similar vote by Mayor Valdivia exercising his authority to vote on issues relating to staff personnel, to fire Travis-Miller.
For nearly two months prior to that decisive 6-to-2 vote, there was reflection and expression of concern about jettisoning Travis-Miller and the expense this would entail, consisting primarily of paying her a severance that could better be used to pay the first year’s salary and benefits of her successor. Hence, there had been considerable speculation about the council citing cause in forcing Travis-Miller to depart, as this would absolve the city of the requirement to pay her the severance her contract specified, consisting of one-year’s salary and benefits. A laundry list of grounds for her firing made the rounds.
While the unofficial reason bruited about the community for public consumption intended as an ostensible explanation of the council’s action was that the budget Travis-Miller had recommended to the council before the onset of fiscal year 2018-19 and which was approved missed its revenue generation mark by $7 million, in entering the vote to terminate her the council elected not to cite cause and just bite the bullet and pay her the $262,542.50 severance.
It was anticipated that within a fortnight the city would cut Travis-Miller a check for the full amount or begin paying her in 26 bi-weekly pro-rated installments of $10,097.78 over a one year period. That did not occur. On July 16, Miller filed a claim against the city citing breach of contract and alleging she was being retaliated and discriminated against and had been harassed.
The filing of such a claim is considered the precursor of a lawsuit. In order to sue a public entity, a claim must be filed. The public entity has the option of seeking to satisfy the claimant for whatever loss or damage is specified or rejecting the claim. Upon the rejection of the claim, the claimant has one year to file suit in state court or two years to file suit in federal court.
At its July 17 council meeting the council had a closed door conference with its legal counsel relating to two cases of significant exposure to litigation. Because the discussion was not held publicly, it is not known whether Travis-Miller’s claim or its substance was considered. At its August 7 council meeting, the council had a closed door conference with its legal counsel relating to a case of significant exposure to litigation. Because the discussion was not held publicly, it is not known whether Travis-Miller’s claim or its substance was considered.
That the council failed to cite cause in terminating her on May 29 complicates things for the city in terms of Travis-Miller’s allegation of breach of contract. Citing such cause is a requisite of foregoing making the severance payment specified in her contract. The Sentinel has learned that the city is preparing to fend off Travis-Miller’s claim by a belated citation of cause, one which was under discussion during the April 4 to May 29 period in which Travis-Miller hung in the limbo of administrative leave prior to her firing.
Mayor John Valdivia, his advisors, his council allies and Assistant City Attorney Sonia Carvalho believe they can exploit the events that followed from the city council’s granting of her request, some two months after her August 2017 hiring as city manager, to hire Greg Devereaux as a management consultant at $10,000 per month through a $120,000 per-year three-year contract with his firm, Worthington Partners. Devereaux had been retained “for consulting services related to strategic planning and organizational development” and to engage in “mentoring employees and council members” by participating in “strategy development discussions… and developing operational goals and objectives and helping us to arrive at performance metrics for departments” during the city’s budget process.
Devereaux was simultaneously working as a consultant to a number of other public agencies, including the County of San Bernardino, the Ontario International Airport Authority and the East Valley Water District.
In April 2016, the City of San Bernardino, based upon direction provided to the city attorney the previous month, filed a lawsuit against the East Valley Water District and the San Bernardino Valley Municipal Water District. That suit was filed prior to Miller being hired as assistant city manager, a position she held when she was elevated to city manager in August 2017, or Devereaux’ taking on his consulting contract with San Bernardino,
The city’s lawsuit against the East Valley Water District related to East Valley’s Sterling Water Recycling Plant project to be built near Indian Springs High School, which the city claimed was beset with major questions and problems. That project was projected upon completion to discharge roughly 6 million gallons of treated wastewater into the local groundwater basin per day. The East Valley Water District was utilizing the San Bernardino Valley Municipal Water District, a regional water wholesaler, to act as the lead agency on the project and carry out the environmental certification by inspecting and ratifying the environmental documents for the undertaking that had to be filed in compliance with the California Environmental Quality Act.
Historically, under a joint powers authority formed in 1958, untreated wastewater originating within the jurisdiction of the Highland-based East Valley Water District had been treated by the City of San Bernardino at the San Bernardino Municipal Water Department-run Margaret H. Chandler Water Reclamation Plant in San Bernardino, and then the rapid infiltration and extraction tertiary treatment facility in Colton, which is jointly owned by Colton and San Bernardino, but operated by San Bernardino. The purified water was then discharged into the Santa Ana River.
San Bernardino alleged there was no comprehensive cost analysis and total price tag for the Sterling project and the true cost, including the escalation of local water rates, and that the environmental impact report was inadequate in its provision of “substantial evidence or analysis” assuring the project would not substantially degrade water quality in the Bunker Hill Basin and would not harm the Santa Ana River sucker fish. The public health and cost implications of the project were exacerbated, the city claimed, by the absence of a process for “de-salting” groundwater, that is, the removal of nitrates and other untoward contaminants from the water. Moreover, the suit alleged, the project did not take into consideration that the City of San Bernardino, through its water department, had arranged to make water treatment services available to the district, was continuing to make water treatment services available, was about to embark on its own wastewater recycling plant project, the San Bernardino’s Clean Water Factory, to recharge groundwater, and that if East Valley departed from the longstanding arrangement and began treating its own wastewater, then the San Bernardino’s water provider would stand to lose no less than $4.5 million annually for 20 years.
In response, both the Highland-based East Valley Water District and the San Bernardino Valley Municipal Water District asserted that the $128 million project, which was dubbed the Sterling Natural Resource Center, offered the best future arrangement for water treatment and local groundwater recharging as well as the best protection for ratepayers within the East Valley Water District, the cities of San Bernardino and Highland, and unincorporated San Bernardino County as well as the larger service area of the San Bernardino Valley Municipal Water District.
In June 2016, San Bernardino followed up with a second lawsuit in which the East Valley Water District was the sole named defendant, alleging the district had violated state law in circumventing the disclosure process in the pubic scoping arrangement for the proposed sewage plant. The city maintained the East Valley Water District was proceeding with the project despite not having licensing or authorization to provide wastewater treatment and disposal services, and that it had neglected to seek that authorization from the San Bernardino County Local Agency Formation Commission, which is charged with ascertaining jurisdictional boundaries relating to the provision of infrastructure and public services.
In January 2017, both the East Valley Water District and the San Bernardino Valley Muncipal Water District asked San Diego Superior Court Judge Joel R. Wohlfeil, who was hearing the case against them, to dismiss it. Wohlfeil at that time rejected the motions. But after further hearings and considerations, Wohfeil ruled “The CEQA (California Environmental Quality Act) process was adequately undertaken such that the lead agency and the public were reasonably able to analyze the costs and the benefits” of the Sterling Natural Resource Center.
The lawsuit against the East Valley Water District relating to the violation of the process that included excluding the San Bernardino County Local Agency Formation Commission from looking into which entity would most logically be able to carry out the function of regional water purification and groundwater recharge proceeded.
In the fall of 2017, Travis-Miller took up the matter in earnest, looking to find a way to negotiate a settlement that would conceivably involve having the East Valley Water District abandon its plan to complete the Sterling Natural Resource Center and come to an accommodation by which San Bertnardino would continue to provide the regional water treatment service, facilitating the eventual construction of the city’s San Bernardino Clean Water Factory. In pursuit of this settlement, Travis Miller turned to Devereaux, who was also serving as a consultant to the East Valley Water District, to assist her in the negotiations. Devereaux’s input was deemed particularly valuable given that in his seven years as the chief executive officer of San Bernardino County, he had developed a thorough knowledge of the manner in, and the principles under, which the San Bernardino County Local Formation Commission operates.
Ultimately, a resolution of the litigation was crafted short of trial which entailed East Valley being able to walk away from the 1958 joint powers agreement and no longer be required to use San Bernadino’s water reclamation services once the Sterling facility was completed. San Bernardino was to be recompensed for the $4 million in revenue it previously realized in the contractual deal with East Valley through the San Bernardino Valley Water District, which is the water wholesaler for the cities and communities of San Bernardino, Colton, Loma Linda, Redlands, Rialto, Bloomington, Highland, East Highland, Mentone, Grand Terrace and Yucaipa, agreeing to deliver 3,000 acre-feet of state water project water annually to San Bernardino for a period of 10 years, which was estimated to save the city at least $450,00 and perhaps as much as $600,000 over the next decade. East Valley also agreed to convey to the City of San Bernardino ownership of 22 acres it owns at the intersection of Sterling and Third streets near San Bernardino International Airport which was previously purchased for but never used as a new district headquarters site, for the city to develop as it sees fit. San Bernardino was to pay East Valley $8 million that the city over the years had collected from East Valley’s customers, under the terms of the joint powers authority agreement, for the future expansion of a large sewer line, contingent upon development in East Valley’s jurisdiction.
The City of San Bernardino also agreed to divert 3 billion gallons of water annually, which is used for regional recharge of the Santa Ana River and which could be marketed for as much as $8 million, to the Bunker Hill basin.
The settlement was arrived at during the tenure of Mayor Carey Davis. Valdivia and his team have revisited the terms of the legal settlement with the East Valley Water District. They believe they can establish that the settlement was in no way a good deal for the City of San Bernardino. Valdivia and those in league with him on the council believe that Travis-Miller having allowed Devereaux, whose loyalty to San Bernardino was compromised, they say, by his contractual relationship with East Valley, to take part in the negotiations constituted action inimical to the city’s interest, which thereby forms the basis for now being able to assert that Travis-Miller was terminated with cause.
Whether Travis-Miller’s acquiescence in Devereaux’s involvement in the settlement negotiations constitutes legitimate grounds for having terminated her is open to debate.
If it is now Valdvia’s contention that the December 2017 settlement with East Valley was contrary to the city’s interest, that clashes with public statements he made at the time in which he asserted he was himself a key player in arriving at the agreement to end a lawsuit that was consuming city time and resources.
Further contradicting the assertion that the lawsuit settlement can serve as a legitimate basis for terminating Travis-Miller are statements from the region’s public officials, who characterized the settlement as one that was transparent and well-thought out.
Among those who claim the lawsuit settlement prevented the squandering of further public resources is East Valley Water District General Manager and Chief Executive Officer John Mura.
According to Mura, the litigation the City of San Bernardino was pursuing against his agency was unlikely to have had a suitable outcome for any of the parties had it been continued to trial. Both Travis-Miller and Devereaux played what were essentially limited roles in an effort involving a multitude of officials with the water district and the city disengaging both parties from a counterproductive legal misadventure that had already squandered monetary resources and the time and energy of both entities and would have done further damage to the community, Mura said.
Stacey Aldstadt, who began as the general manager of the San Bernardino Water Department in 1996, was a prime mover in the city’s decision to file suit against East Valley over the Sterling project. Under Aldstadt’s guidance, the city had aggressively kept on with the second lawsuit relating to East Valley’s pursuit of the Sterling plant, even after the first suit was dismissed. Ultimately, Aldstadt was put on administrative leave by the City of San Bernardino in September 2017, pursuant to action taken by the San Bernardino Water Department Board of Directors. The move toward Aldstadt’s dismissal came one month prior to the City of San Bernardino retaining Devereaux as a consultant. Aldstadt was thereafter eased out the door by the board. It was in the aftermath of her departure that the city and the water district arrived at a settlement with regard to the at-that-time yet-pending litigation.
“Prior to any lawsuits being filed several meetings were conducted to frame the issue of East Valley constructing a sewer treatment facility to treat the flows within our district boundaries,” according to Mura. “The meetings were attended by [San Bernardino Valley Municipal Water District General Manager] Doug Headrick, Stacy Aldstadt and I. The original scope of the meetings focused on the amount of river diversions that would be acceptable given habitat issues and downstream delivery obligations, future of the JPA [joint powers authority] between East Valley and the San Bernardino City Water Department, and operational impacts to the city should sewer flows be reduced or eliminated. It was decided that East Valley should conduct a feasibility study to determine what amount of sewer flows should be diverted to a new facility if one was to be constructed. Options that were studied included a facility that would treat future flows specifically for the Harmony Project, half the existing flows of 3 million gallons per day or the entire existing flows including future growth.”
The Harmony Project was a proposal by the Lewis Group of Companies to entail 3,632 houses on 658 acres within a total 1,657-acre project area to include a neighborhood commercial center at the confluence of Mill Creek and the Santa Ana River, directly adjacent to San Bernardino National Forest in the City of Highland and its sphere of influence.
Mura said, “The study also considered best use of the recycled water, should it be used for direct use by delivering it as irrigation supply or recharge into the groundwater basin. An RFP [solicitation for bids] was developed, and Stacey [Aldstadt]was invited and participated on the final interviews to approve the final scope of the study and the selection of the vendor. During this time, it was obvious that this would be a very complex issue that would require a high degree of negotiation and collaboration. The general managers agreed that it would be beneficial if a professional conflict resolution facilitator be brought in to work with the group. In addition, each agency agreed that an ad hoc committee be formed made up of the chairperson and vice chairperson from each agency. The thought was that as the facilitator worked with the general managers we would meet with the ad hoc committee consisting of the two members from each of the three agencies regularly to report on our progress.”
According to Mura, “Unfortunately, this framework dissolved when Stacey unexpectedly without any notice filed lawsuits against both Valley and East Valley as it related to what was now the Sterling Natural Resource Center. During the period that the legal action was taking place Valley and East Valley staff and board members continued to work collaboratively to move the project forward and resolve the legal issues. In addition, much effort was made to develop a settlement to avoid a long legal battle. Unfortunately, efforts to communicate with the city were prevented by Stacey.”
Mura said San Bernardino Valley Municipal Water District Board Member Susan Longville suggested that Devereaux could act as an intermediary for all three entities – the East Valley Water District, the San Bernardino Valley Municipal Water District and the City of San Bernardino – to assist in reaching a resolution, “but Stacey killed that idea with her board.”
Mura said that despite the consideration that the San Bernardino Municipal Water Department is a division of the City of San Bernardino, the city’s water board and Aldstadt were impervious to the oversight of the city council and city management. At a given point, Mura said he sought to utilize Devereaux as an emissary to the city. “Previously we were unable to break through the wall that Stacey had established, given the water department was treated as a separate entity apart from the city,” Mura said.
San Bernardino city officials were first given a sobering realization of what the litigation was risking when the first of the city’s lawsuits was dismissed, Mura said.
“The first legal action against the project EIR [environmental impact report] was ruled on by the judge in favor of the Sterling project on all counts,” Mura said. “This left the second case as it related to LAFCO [the San Bernardino County Local Agency Formation Commission] remaining. At this time, because of the city’s defeat and the appointment of a new city manager [i.e., Travis-Miller], the mayor [Carey Davis] began to take more interest in the issue.”
Mura said that at that point Devereaux was “primarily providing us advice regarding how to work with LAFCO and their approval process. As a result of Greg Devereaux’s efforts, meetings with the three agencies led by the mayor and one member from each board were conducted. At the time Chris Carrillo from East Valley, Susan Longville from San Bernardino Valley Municipal Water District and Judy Valles from the San Bernardino City Water Board made up the ad hoc committee. Once each agency had an opportunity to communicate their concerns, the executive staff from each agency began work on settlement options for the committee to consider. It’s important to remember that at this time Stacey had been relieved of her duties and Andrea was taking the lead on behalf of the city. Doug [Headrick], Andrea [Travis-Miller], San Bernardino Municipal Water Department General Manager] Miguel [Guerrero] from the water department and myself held a couple meetings with the mayor to provide historical perspective and details regarding the issues. Following those meetings Andrea, Doug, Miguel and myself began to draft elements of a draft settlement agreement for the ad hoc committee to consider. The bulk of the settlement discussions were developed during meetings attended by myself, Andrea, Robin [Ohama, the deputy general manager in the city’s water department] and Miguel. Greg Devereaux and other consultants were involved helping with several technical issues that needed to be considered as part of any settlement discussions.”
According to Mura, “Once the draft agreement was constructed, Andrea and I presented it to the ad hoc committee and then to each elected body for consideration and approval.”
Mura said the facts of the matter did not support the conclusion that Travis-Miller was in any way remiss in working toward a settlement of the litigation between the East Valley Water District and the City of San Bernardino.
“The bottom line regarding this issue is that several people took part in an extremely transparent process to resolve a very complicated issue,” Mura said. “It took leadership, creativity and a lot of hard work to develop a settlement that will benefit the entire region for many years to come.”
Controversial remarks by Yucaipa Mayor Bobby Duncan that were condemned as out of keeping with the broader sentiment of the Yucaipa community and the attitudes of his colleagues on the council provoked an effort by city staff to codify a code of conduct for the council.
That came after Duncan, caught in the contretemps his remarks had created, attempted to mollify his critics with an admission of having made a “mistake” with his social media postings, and offering what was repeatedly said to be an inadequate apology over what were a series of uncharitable characterizations of Muslims and immigrants in general.
In response to the full council’s April request that staff come up with guidelines for the council’s public comportment, a document was generated which the council took up and ultimately, by a 3-to-2 margin, adopted this week.
A sober assessment of the guidelines, which were drafted in an atmosphere of upheaval, reveals a cross section of sensible and basic directions geared toward the conducting of public business in a civil fashion intersticed with elements of restriction advocated by city staff that in at least some respects reverses the hierarchy in which the council, as the representatives of the people, exercise control and authority over city staff, such that the individual council members’ ascendancy, such as it is, is significantly attenuated. Moreover, certain provisions in the code seem to intrude on the council’s constitutional rights as citizens, particularly with regard to freedom of expression.
The code articulates some basic truisms and worthwhile if somewhat trite lectures and lessons in politesse such as “Demonstrating respect for each individual through words and actions is the touchstone that can help guide council members to do the right thing in even the most difficult situations” and “Council members must behave at all times in a manner reflective of the trust placed in them by the public.” The code also seeks to prevent an individual councilmember from overstepping his or her own authority by dictating policy on his or her own, or attempting to micromanage things or usurp the role of the city manager when the proper latitude for an individual councilmember is ruling at the political level together in consensus and concert with the council as a whole at the top of the political chain.
“Do not get involved in administrative functions,” the code states. “To prevent raising concerns of misdeeds, or questionable motives, councilmembers must not attempt to influence city staff on the making of appointments, awarding of contracts, selection of consultants, processing of development applications, or the granting of of city licenses or permits.”
Beyond cataloging the rightful province within which a member of the council is to function, the code moves into areas which in many respects intrude on the manner in which an elected official is able to advocate on behalf of his constituents or assert his own position. A recurrent theme is the desirability of eschewing contention, downplaying differences, legitimate or otherwise, and hewing to a common position that betrays no substantive differences of opinion or position among the city’s elected officeholders and city staff.
“Avoid personal comments that may offend other councilmembers,” the code states. “If a councilmember is personally offended by the remarks of another councilmember that assail, question, or impugn his/her integrity, character, or motives, the offended councilmember should make notes of the actual words used and call for a “point of personal privilege” that challenges the other councilmember to justify or apologize for the language used. The presiding officer will maintain control of the discussion.”
The code emphasizes the premium that is placed upon projecting the impression that there is substantial agreement at all levels of city government on issues and policy.
The code of conduct also instructs councilmembers to “continue respectful behavior in private,” stating, “The same level of respect and consideration in differing points of view that is deemed appropriate for public discussions should be maintained in private private conversations. Be aware that the insecurity of written notes, voicemail messages, and email technology allows words written or said without much forethought to be distributed wide and far. It could create unpleasant circumstances and cause embarrassment. Written notes, voicemail messages and emails should be treated as potentially ‘public’ communication and part of the public record.”
Lines of authority exist and should be maintained, according to the code.
“The city council has direct authority over the city manager and the city attorney; all other employees of the city are under the direct authority of the city manager,” the code states. “Following this hierarchy is important to the success of the basic structure and to maintaining positive and effective working relationships between the city council and employees, and will prevent any confusion and /or inefficiency and contradictory direction.”
Even though the code designates the council as having direct authority over the city manager, it also limits the council, in large measure, to obtaining information about the operations of City Hall only through the city manager. With the city manager serving as the gatekeeper of the information flowing to the city council as well as the ultimate arbiter of whether information individual councilmembers request will be provided to them, the code in this way puts the councilmembers at a disadvantage in seeking to wield authority over the city manager. The code also gives the city manager discretion in terms of whether information requests by the council will be fulfilled.
The code states that the councilmembers should “Limit contact to specific city staff. Questions to city staff and/or requests for additional information or services should be directed only to the city manager. If, in the opinion of the city manager the request makes sense and requires little staff time and/or resources, the city manager can direct the appropriate department to fulfill the request. If a councilmember needs to review a document maintained in the city’s records system, upon request to the city manager, staff will retrieve the requested document. The city manager is legally responsible for the management and retention of city records, and only staff is authorized to retrieve information from the records system.”
The code further tells members of the council, “Do not disrupt city staff from their jobs. To maintain efficiency in daily activities it is important that councilmembers not disrupt city staff while they are in meetings, on the telephone or engrossed in performing their job functions in order to have their individual needs met. Respect city staff’s time. Given ongoing fiscal constraints and limited staff and council time, individual councilmembers should minimize memos and maximize face-to-face interaction with other councilmembers.”
The code further requires that members of the council hold their tongues and speak no evil of anyone affiliated with the city they were elected by the residents to serve as a watchdog over.
“Never publicly criticize an individual employee,” the code states. “Council should never express concerns about the performance of a city employee in public, to the employee directly, or to the employee’s manager. Comments about staff performance should only be made to the city manager through private correspondence or conversation.”
Moreover, the code instructs members of the council to censor themselves if they are seized by the urge to publicly indicate their observance of any shortcomings in the performance of city employees individually or collectively. Further, council members should not trust themselves to articulate their observations about the function and performance of city employees or City Hall generally, but rather rely on the city manager to put words into their mouths, according to the code, as it is imperative that city officials speak with one voice, irrespective of whether they have differences of opinion with other city officials.
“Check with city staff on correspondence before taking action,” the code of conduct states. “To prevent conflicting statements or duplications, before sending correspondence, councilmembers shall check with staff to see if an official city response has already been sent or is in progress. Typically the mayor, through consultation with staff should respond to communications addressed to the entire council. When it is unclear whether a correspondence is to an individual councilmember or the city council as a whole, councilmembers should consult with the mayor or staff to determine the appropriate response.”
It is imperative that members of the council betray no dissension between them, according to the code of conduct.
“In unofficial settings make no personal comments about other councilmembers,” the code states. “It is acceptable to publicly disagree about an issue, but it is unacceptable to make derogatory comments about other councilmembers, their opinions and actions. Doing so my undermine confidence in and respect for the city council as a body.”
Noting “Councilmembers are frequently contacted by the media for background and quotes,” the code doubles down on making it clear that city officials need to speak with one voice rather than allow the public to glimpse that substantive differences exist on the council “The mayor and city manager shall determine the official spokesperson for the city’s position on high-profile issues,” according to the code. “If an individual councilmember is contacted by the media, the councilmember should refer the media to the mayor or the city manager and refrain from making statements that would give the appearance of representing the city’s position. The city manager or his/her designee shall be the city’s spokesperson on routine media inquiries.”
When the councilmember has a difference with his council colleagues or other city officials with regard to a policy, he or she should not articulate his or her position or in any way contradict the official position or contradict the official line, even if the reporter or media representative agrees to not quote his or her interlocutor, the code states.
“The best advice for dealing with the media is to never go ‘off the record’” according to the code.
And councilmembers should avoid making denials in conversation with the media, according to the document. “Never say ‘No comment,’” the code says.
The code is not merely a guideline that the council is supposed to voluntarily adhere to. The restrictions in the code carry teeth. “City council members who intentionally and repeatedly do not follow proper conduct as outlined in this code of conduct may be reprimanded or formally censured by the council, lose seniority or committee assignments, both within the city or with intergovernmental agencies, or have official travel restricted,” the code states with regard to enforceability.
Councilman Greg Bogh said imposing a code of conduct on the council not only hampered communication but thwarted the political process. “I think the conduct of elected officials is regulated by the voters,” Bogh said, and he aired the belief that if the voters find themselves “displeased with the conduct of elected officials, then they should vote them out of office.”
Duncan said the code of conduct was part of the “overreaction” and “overkill” to his social media posts and utterances. He called the code “ridiculous,” saying, “Now, I can’t exercise my rights as a citizen.” Bogh and Duncan were in the minority, however, as councilmembers Denise Allen, David Avila and Dick Riddell voted in favor of adopting the code, after tweaking it to allow councilmembers to voice opinions in public settings other than ones associated with the city.
Councilwoman Allen, upon whose suggestion in April a code was fleshed out and brought back to the council, said the code qualified as “a good guiding document” that allows the council members “to understand their roles and relationships.”
The development of the Eastgate Air Cargo Facility at San Bernardino International Airport will result in what airport officials said they anticipated would be a “marginal” increase in flight activity over the San Bernardino Mountain communities.
Cargo carriers will seek to minimize the impacts of the increase in flight activity, consisting primarily of increased sound levels from what is anticipated to be no more than a dozen more flights per day, by the use of a flight route that will keep the planes from flying directly over Lake Arrowhead, Lake Gregory, Crestline, Twin Peaks and the Valley of Enchantment.
The Eastgate project is a project put forth by Hillwood Enterprises, LP, of which Ross Perot, Jr. is the chairman. Hillwood in January 2017 obtained from the San Bernardino International Airport Authority’s board of directors an exclusive right to negotiate for a ground lease on a 2 million square foot expanse located on the airport property for the creation a cargo logistics center to be subleased to an eventual tenant/operator after Hillwood finalizes its 35-year ground-lease agreement with the San Bernardino International Airport Authority.
The undertaking entails the creation of a new hub at San Bernardino International Airport Authority which will mean an increase in cargo flights out of the facility. Some of those will flights, primarily those ferrying cargo to the Midwest and East Coast, will fly over the mountains.
According to an environmental impact report on the project, “San Bernardino International Airport Authority proposes to develop the Eastgate Air Cargo Facility to accommodate the demand for air cargo logistics operations, adding that the project will involve “construction of taxilanes and an aircraft parking apron to accommodate up to 14 aircraft, a 658,500-square-foot distribution center with connecting aircraft ramps, two 25,000-square-foot maintenance buildings, and automobile parking with approximately 2,000 parking stalls.”
The San Bernardino International Airport Authority is a joint powers agency among the County of San Bernardino, the City of San Bernardino, the City of Colton, the City of Highland and the City of Loma Linda devoted to the civilian use conversion of former Norton Air Force Base.
As of earlier this summer, the final language and terms of the ground lease had yet to be negotiated, nor had a tenant been identified. Despite that, other indications that such a cargo carrier is indeed interested in and committed to operating out of San Bernardino. In October 2018, the San Bernardino International Airport Authority approved the Eastgate project’s Environmental Impact Report, which stated the “timeline for the [Eastgate project] been accelerated to meet the needs of a prospective tenant: to have [Eastgate] in operation by October of 2019.”
According to the environmental impact report a delay in construction “is not feasible because it would not meet project objectives established by the prospective tenant. The project’s development is dependent on the support of the tenant, and the tenant would not support the extended timeline.” According to the environmental impact report, once fully operational, the facility will add 24 or more around-the-clock air cargo flights.
Overflights above Lake Arrowhead have been and continue to be a concern. In April 2017, the Federal Aviation Administration initiated its Southern California Metroplex Project, which was intended to increase the efficiency of the approaches into five Southern California commercial airports and reduce fuel consumption. The revised routing, based on pre-set satellite navigation beams, diverted westbound planes formerly headed to Ontario International Airport from their previous trajectory over the San Bernardino Mountains using Heaps Peak as a pass-over locus to the airspace above 5,100 foot elevation Lake Arrowhead. Those planes flew at anywhere from an elevation of 7,200 feet to 9,600 feet on what is referred to as the EAGLZ route, such that they passed somewhere between 2,100 feet to 4,500 feet over the homes, schools and businesses of Lake Arrowhead.
Those overflights, disturbing at any time of the day, were particularly problematic at night, when the natural ambient noise level had dropped and the jet engines’ cacophony interfered with the populace’s sleeping patterns. After an extensive lobbying effort by Quiet Skies Lake Arrowhead, a group led by Lake Arrowhead resident David Caine and the intercession of Second District San Bernardino County Supervisor Janice Rutherford, Assemblyman Jay Obernolte, Congressman Paul Cook, U.S. Senators Dianne Feinstein and Kamala Harris, the Federal Aviation Administration relented and Southern California’s terminal control center began vectoring Ontario Airport’s nighttime arrivals onto a path east of the EAGLZ arrival route.
In response to Hillwood and the San Bernardino International Airport Authority’s plans for Eastgate, another grassroots organization, Friends of Lake Arrowhead Mountain Communities, led by Caine as the organization’s recording secretary, its president, Matthew Kallis and its chief financial officer, Anthony St. John, and initiated communication with the San Bernardino International Airport Authority’s executive director, Michael Burrows, the director of aviation at SBIAA, Mark Gibbs, and Steve Alverson, a project manager at the airport overseeing Eastgate. Reportedly, The representatives of Friends of Lake Arrowhead Mountain Communities were not able to achieve their goal of getting airport officials to keep any additional planes from flying over Lake Arrowhead and its environs but nonetheless wrung from airport official a non-binding and unwritten assurance that the flights originating from Eastgate which sojourn over the San Bernadino Mountains will be routed over Heaps Peak, rather than Lake Arrowhead, Crestline or Lake Gregory.
While hailing the City of Upland’s now unfolding plan to provide Memorial Park with a comprehensive makeover, several of that city’s residents expressed lingering suspicions that the improvement plan contains within it a provision that will nonetheless reduce the community’s recreational centerpiece’s footprint once more, this time by more than four-and-a-half acres.
Indeed, a differently composed city council than the one now overseeing civic affairs in the City of Gracious Living, just last year angered a wide cross section of the city’s populace by committing to sell 4.631 acres of the southwestern portion of the park, one that contains a baseball field that is actively used by the city’s youth leagues, to San Antonio Regional Hospital. The main campus of the hospital immediately adjoins the park, and the hospital wants to convert the baseball diamond and some of the greenland around it to a multistory parking structure to accommodate the hospital’s burgeoning clientele, brought about by the hospital’s expansion and its recent partnering with the City of Hope to establish an oncology clinic there.
On March 26, 2018, with 72 hours notice, the Upland City Council, advised by then-City Manager Bill Manis, then-Development Services Director Jeff Zwack and City Attorney James Markman, voted 3-to-1 to approve a purchase and sale agreement between the hospital and the city, with San Antonio Hospital paying $906,931.55 per acre, or a total of $4.2 million to acquire the 4.631 acres. Mayor Debbie Stone and then-council members Gino Filippi and Carol Timm went along with making the sale, Councilwoman Janice Elliott opposed it. Then-Councilman Sid Robinson was not present at the meeting.
With the 2018 election cycle, Filippi, Timm and Robinson, who was allied with them and Stone, were turned out of office, at least in some measure as a consequence of the unpopular move to reduce the park’s size.
In approving the sale, the city council also authorized City Attorney James Markman to file a so-called validation proceeding intended to foreclose any procedural or future legal challenge to the sale. In its validation action filed with the court, the city invited anyone opposed to the sale to lodge a protest. The challenge to the validation had to be filed within 60 days. Once the court validated the sale, any future lawsuits contesting the sale would be barred. The calculation by those favoring the sale was that no one would go to the expense of hiring an attorney to make an answer to the validation petition.
The validation procedure was directed to the courtroom of Superior Court Judge David Cohn in San Bernardino. To the chagrin of city and hospital officials, Marjorie Mikels, an attorney living in the city, as well as Cory Briggs, an attorney based in both Upland and San Diego, filed answers to the validation action. Those responses took issue with the sale on multiple grounds, among which was that the city selling off a slice of the park – in particular the one sold by the council on March 26, 2018, which included the long extant and actively used baseball field – is tantamount to abandoning public property. Such abandonments, under state law, cannot be effectuated without a vote of the citizens residing in the jurisdiction that owns that property.
Faced with not one but two challenges to the sale he had not anticipated, Markman sought to convince Judge Cohn that the city council, acting on its own authority, was within its rights to sell off city land. Faced with the argument that a municipality’s abandonment of property it owned and was putting to beneficial public use had to be subjected to a vote, Markman asserted that selling the property did not constitute an abandonment.
Ultimately, some 14 months after the sale of the park property was approved by the city council, on May 29, 2019, Judge Cohn, after hearing the responses to the city’s filing, dismissed its petition for validation. Judge Cohn’s ruling cleared the way for anyone with standing – meaning essentially any city resident – to file a lawsuit challenging the sale.
Penultimately, hospital officials have resigned themselves to the necessity of subjecting the sale of the property to a citywide vote. It appears that balloting will take place in conjunction with the March 2020 California Primary election.
In what is perhaps a coincidence or perhaps another calculated move on the part of city staff committed to assisting the hospital in obtaining the parking structure to augment its operational growth, Doug Story, the city’s recreational services manager, has put together a conceptual plan for upgrading Memorial Park. Contained within that plan is a provision for a reduction of the park’s overall area that is in keeping with the hospital’s intention of proceeding with the construction of the parking structure on the aforementioned 4.631-acre parcel.
Story this week, at the city council’s August 12 meeting on Monday night, previewed the sugar-coated park enhancement plan – replete with refurbishing or replacing playground equipment, adding an amphitheater and an artificial turf multi-sports competition field, walking and exercise trails, a basketball court and an intensified outdoor nature conservancy with trees and plants hospitable toward bees, hummingbirds and the like – in which was buried the fishhook for the parking structure.
Envisioned in the grandiose plan are fulfilling some of the never-realized elements of the original blueprint for the park as it was drawn up by landscape architect Ralph Dalton Dalton when the park was designed in the 1930s, including oak trees, a greenbelt and the amphitheater. Were all of the elements Story has outlined to be brought to fruition, they would cost more than $18 million. Story proposes getting started with an infusion of $8.5 million, which is the maximum amount an applicant can receive in response to a grant request under the auspices of Proposition 68, a $4.1-billion bond measure to fund park improvement and enhancement projects approved by voters last year. Story has made just such a grant application on the city’s behalf.
What was hinted at is that other donors could put up money to augment the $8.5 million, should the city receive the grant. If the grant comes in, Story said $2.7 million of it will be earmarked for an amphitheater encircled by a greenbelt; $1.4 million will go to create a soccer/rugby/football field featuring not grass by artificial turf; $718,000 will be spent on playground equipment; $209,000 will cover the completion of a basketball court; $380,000 will be utilized to provide one tree-lined walking trail and one exercise station-outfitted walking trail; $310,000 is to be used for establishing a pollinator garden; and $600,000 would be utilized for lighting.
It was reported that San Antonio Regional Hospital has committed, conditional upon the city selling it the 4.631 acres, to springing for the exercise stations along one of the trails.
Contained on page 32 of the staff report Story authored to accompany his presentation of the park master plan was the following statement, “San Antonio Regional Hospital is interested in acquiring the existing southwest quadrant of Memorial Park for a potential joint-use parking lot sponsored by San Antonio Regional Hospital per an agreement with the City of Upland. This acquisition and agreement is subject to voter approval of a ballot initiative scheduled for the March 2020 election.”
Lois Sicking-Dieter, a resident, on Monday night addressed the city council, telling its members and the city’s residents that they should take stock of what San Antonio Hospital is doing.
“San Antonio Hospital is interested in contributing funds to help build exercise fitness stations in a walking path to help improve public health,” Sicking-Dieter said. “Kudos to you, San Antonio Hospital! Now, they might be trying to buy good will because they are going out for an election. Knock yourself out. You can do it. It’s legal. You can buy good will in this town. We really need those exercise stations. Another thing is, there have been medical studies done on the benefit, the health benefit, to the public on parklands, open space. The 4.6 acres is a part of a wonderful paradise that we have here in Upland. And so, I would also ask San Antonio Hospital to take a look at the health benefits that the public can derive from their keeping their hands off our park. Let the people have the park.”
This is not the first or even second raid San Antonio Hospital has made on Memorial Park, Sicking-Dieter said.
“San Antonio Hospital has been buying parkland, or getting parkland from us since the 1970s, and then the 80s, and then the 90s,” she said. “Here we are folks. It’s 2019 and we are their primary plan for parking here in Upland. They’re like a 55-year-old kid who returns home to mom and dad and says, ‘You know, rent is really high out there. They make me work so hard. Can I crash with you for a while? For the tenth time?’ Come on, San Antonio Hospital! We need to do toughlove. Let’s do toughlove with San Antonio Hospital, and say, ‘Find your own parking. Find your own parking capacity. You have it. We’ve given you enough land already.’ It’s time to say, ‘No.’”
Sicking-Dieter said there should be full disclosure of all aspects of the proposed sale, with requirements that the hospital inform the citizenry of the sale, and the city facilitating awareness of the matter, as well.
“I appreciate this time we are going to an election,” Dicking-Dieter said. “Some are saying, ‘Wait a minute. We’ve been giving them land since the 1970s?’ Yes. Giving them. It should have gone to a vote. This is the first time we’re going to do it right. Let’s do it right. Let’s make San Antonio Hospital put signs up on every entrance going into Memorial Park, saying, ‘We’re trying to buy this land.’ I think we should have a flier, and those should go out in our water bills.”
Two years prior to the time he would otherwise be eligible to do so, San Bernardino Police Chief Jarrod Burguan is retiring today at the age of 48, 27 years after he began with the department.
Paradoxically, as is sometimes the case with law enforcement professionals, the worse day of Burguan’s career launched him into the stratosphere of his vocation, transforming him instantaneously into a celebrity of national and even international standing.
Fate dictated that Burguan was at the helm of the department on December 2, 2015 when Syed Rizwan Farook, a restaurant inspector employed with the San Bernardino County Department of Public Health, and his wife, Tashfeen Malik, approached and then went into an auditorium at the Inland Regional Center where both a training session and a pre-Christmas banquet for Public Health Department employees was being held. Wearing ski masks, armed with semi-automatic pistols and rifles and clad in load bearing vests holding magazines and ammunition, Farrok and Malik killed two pepole before entering the building and thereafter unleashed a fusillade of more than 100 rounds inside before fleeing. In the process they killed fourteen and wounded 22 of the 86 people present, virtually all of whom had been Malik’s co-workers in the Deaprtment of Public Health. Ultimately, some four hours after the initial attack and Farook and Malik had returned to their residence in Redlands and were coming back into San Bernardino they were spotted by San Bernardino Police officers driving a vehicle rented by Farook four days before the attack, and which the department had identified. Officers gave pursuit and confronted Farook and Malik, at which juncture a shootout ensued on San Bernardino Avenue just east of Sheddon Drive. As more police units arrived to converge on the couple in and around their vehicles, 23 officers firing a combined total of at least 440 rounds mortally wounded the murderous pair.
Burguan was widely credited with his calm, methodical, vigilant, thorough and ultimately successful response and the coordination of his department’s resources throughout the ordeal. Thereafter, he was in great demand by other departments all over the country for input on preparation for similar emergencies. Burguan found himself torn between what he felt was a legitimate need to contribute to readiness and preparation among agencies throughout the law enforcement industry nationally and his duties in running his own department that was struggling under challenging circumstances that were unrelated to the December 2, 2015 attack. San Bernardino had filed for Chapter 9 bankruptcy protection in 2012, and the city’s overall financial condition complicated even further the city’s unenviable position of being what was ranked on one survey as the 16th most dangerous city in the United States with a murder rate that was more than twice the national average.
Despite the opportunities that were presented to him to take on an even more lucrative police chief’s assignment elsewhere, Burguan remained in San Bernardino, even as he was being criticized for his attention sometimes being diffused by requests for his input with regard to response readiness in other jurisdictions.
He began with the San Bernardino Police Department since January 1992, when he was 21. Throughout his time with the department he worked in, supervised or managed units in every division of the department, while earning a bachelor’s degree and a masters degree in management from the University of Redlands. In 2012, he sojourned to Boston, where he took graduate courses and graduated from the Senior Management Institute for Police, which is part of the Police Executive Research Forum of Boston University, He also was a member of Class 53 of the California Police Officer Standard and Training College, from which he was provided with a management certificate.
In 2013, he succeeded Robert Handy as police chief.
Burguan for years has made the daily commute from Lake Arrowhead.
He took an extended leave earlier this year to undergo knee replacement surgery. Boosted into the position of his temporary replacement at that time was Eric McBride, who had promoted to the position of assistant chief under Burguan and whom Burguan had supported in that promotion. McBride has now moved into the police chief’s position, which was not previously anticipated as McBride is four years older than Burguan. With the traditional minimum retirement age for police officers being 50, it was previously thought Burguan would most certainly remain with the department at least until he eclipses his 50th birthday in November 2020, and would perhaps remain with the department until 2025, at which point he would maximize his pension at 100 percent of his salary. In 2025, McBride will be 59, somewhat past what is considered the standard retirment age in the law enforcement profession presently.
Burguan’s return from his medical leave for the knee surgery was anticipated more than three months ago. One unconfirmed report was that his physician had not cleared him for resuming his duties. The true reason for the delay in his return has not been made clear, however. There are indications that the ascendancy of John Valdivia as San Bernardino mayor may have been a factor in Burguan’s decision not to return. It is an open secret that Valdivia is under investigation by the FBI stemming from reports that money originating from the sale of illegal drugs has been filtered into his personal banking and political campaign accounts, accompanied by reports that the largesse provided to the mayor purchased those donors protection from investigation, arrest and prosecution and encouraged the department to step up enforcement efforts againt those donors competitors in the sale of illicit substances out of storefronts and other businesses within the city. With Burguan’s positive reputation as a consequence of his handling of the December 2, 2015 attack and the doors this has opened for his possible employment elsewhere, including at the federal level or with big city police departments such as those in Philadelphia or Cleveland, which appear to be his conditional only upon the formality of his making an application, he may have decided that returning as police chief in San Bernadino under the current circumstance is too risky.
It is unclear whether the city had given him a special dispensation in allowing him to retire at 48.
In an email to police staff that went out on Wednesday, but which has since been publicly disclosed and has come too serve as his farewell statement, Burguan wrote, “Any success that I ever had in a leadership position came as a result of good people within the organization doing good work, and I am truly appreciative of each and every one of you and the service that you have provided to the city and the department.”
Judge David Cohn this morning rebuffed the coalition on the San Bernardino City Council led by Mayor John Valdivia in its effort to have the financially-challenged city it heads reduce the pay of two of its lame duck officeholders.
In June, the city council, in a move orchestrated by Valdvia and his then-chief of staff, Bilal Essayli, followed a recommendation to reduce the pay to be provided to City Attorney Gary Saenz and City Clerk Georgeann Hanna during the last nine months of their terms in office.
Both Saenz and Hanna hold office under the bylaws of San Bernardino’s municipal charter that was first put in place in 1905 and which remained in absolute effect for 111 years. In 2016, the city’s voters gave approval to Measure L, which called for a redrafting of the charter and reduced the mayor’s administrative authority, moved the city from an odd-numbered-year election cycle to an even-numbered year one, and transitioned the city attorney’s post and the position of city clerk from elected ones to staff members hired or appointed at the discretion of the city council, and dispensed with the elected city treasurer’s office altogether.
Because Saenz and Hanna had been most recently reelected in 2015 to terms that ran from April 1, 2016 through March 31, 2020, they were and are entitled to remain in office, as elected officials, for the duration of their terms, at which point their positions will be filled by the city council’s designees. As elected officials, Saenz was being provided with $246,266 in total annual compensation as city attorney, including salary, benefits and add-ons, and Hanna was receiving $171,466 in total annual compensation as city clerk, including salary, benefits and additional pay. A committee formed by Mayor Valdivia to explore cost-saving strategies chaired by Councilman Henry Nickel and including council members Theodore Sanchez and Juan Figueroa, all of whom are Valdivia’s political affiliates, recommended that Saenz see the $184,700 he was scheduled to receive between July 1, 2019 and March 31, 2020 reduced to $100,000 and that the $128,600 Hanna was scheduled to get over the same nine-month span be dropped to $52,500.
A host of considerations attended that move. Perhaps foremost was the city’s financial circumstance. In August 2012, San Bernardino had filed for Chapter 9 bankruptcy protection and did not emerge from that status until June 2017, during which period the city stiffed its creditors, vendors and service providers for more than $350 million. Indications this year are that two years after the city’s assumed financial recovery, it is again poised over a deepening financial abyss, with expenditures again substantially outrunning revenue such that by the end of 2020 or thereabouts the city will have burned entirely through the reserves it was able to accrue while being artificially propped up by the bankruptcy court, at which point it will again face the likelihood of needing to make another bankruptcy petition. Curiously, the committee did not call for the $160,800 to be saved by the reductions in pay to Saenz and Hanna to be salted into the city’s reserve account but rather to be used to pay for lobbyists and legislative advocates. Another issue driving the pay reduction was the perception that Saenz was a member of former Mayor Carey Davis’s team. Valdivia served nearly five of his previous six-and-a-half years on the city council while Davis was mayor, and had challenged him in 2018, qualifying by finishing first in the June primary to then vie head-to-head against Davis in the November run, a race which Valdivia narrowly won. He is now intent on purging the city of any vestiges of the Davis era. Moreover, Saenz as city attorney had offered legal counsel that on occasion clashed with the direction Valdivia wanted the city council to take. Hanna, who has proven somewhat mercurial in her relationships with the city’s mayors, council members and staff over the years she has been in office, had been among those who ran for mayor in the 2018 primary. After Valdivia’s installment as mayor, she had clashed with him on the issue of city record availability.
The city council on June 11, with Councilman Jim Mulvihill absent, voted 4-to-2, with councilmen Nickel, Sanchez and Figueroa and councilwoman Bessine Richard prevailing over Councilman Fred Shorett and Councilwoman Sandra Ibarra, to institute the pay reductions for Saenz and Hanna as of July 1.
Subsequently, Saenz and Hanna, represented by the law firm of Wagner & Pelayes, filed claims and a legal action against the city, including a petition for a writ of mandate challenging the pay reductions.
That matter came before Judge Cohn this morning as a predisposition hearing.
Representing the city was attorney Edward Kotkin of the law firm Lynberg & Watkins, a different firm than that of Best Best & Krieger, which the city has retained as what is essentially its acting city attorney at present and which will officially replace Saenz in April.
Saenz and Hanna were not represented by anyone from Wagner & Pelayes but rather an independent labor law attorney from West Covina, Thomas Yu.
In hearing Sanez’s and Hanna’s motion regarding the writ for mandate, Judge Cohn took judicial notice of both the 1905 and 2016 charters and ruled that the provisions of the former and current San Bernardino municipal charters were not specific in providing the city council with the authority to change the rate of pay of the city attorney and city clerk while they are serving in their elected capacities, and that the California Elections Code thus dictates that they are entitled to receive, throughout the duration of their terms in office, the salaries and further compensation that was in place for those respective positions when they were elected.
Judge Cohn reasoned that the vote of the city’s residents in 2015, when Saenz and Hanna ran unopposed and were elected with 7,601 and 7,607 votes, respectively, was tantamount to being hired through the electoral process, entitling them to the salaries and benefits then associated with the positions, and that allowing the city council to change that would in essence invalidate the election.
Judge Cohn then stated his tentative ruling, entered before the hearing, on the record. “The writ of mandate is granted,” the record of his ruling states. “Salaries which were in place remain in place till [the] end of office.”
After the hearing, Hanna told the Sentinel, “I’m glad the court agreed that the council had no authority to cut our salaries. It was an ill-advised, costly and completely unnecessary distraction. They were warned by Best Best & Krieger recently, and another law firm in 2017, that it was not advisable to do this. Going forward, perhaps the council would be well-served to heed the advise of its professional advisors.”