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By Mark Gutglueck
Upland city officials and Lewis Group of Companies executives are hunkering down in the face of growing resident discontent over the city’s purposed trade of a 32-acre portion of the 52 acres south of the 210 Freeway it owns in the Sycamore Hills district to Lewis in exchange for that corporate entity purchasing 45 acres in a rock quarry north of the 210 Freeway and providing that to the city for development as a sports complex.
A somewhat different proposal floated earlier this year would have entailed the swapping of the soccer fields at Cabrillo Park on 11th Street, consisting of roughly 16 acres, combined with the aforementioned 32 acres in Sycamore Hills to Lewis in exchange for the 45-acre site. That trade failed to materialize after local residents and youth soccer league officials protested.
In that original proposal, Lewis was to be provided with an entitlement to build 675 units on the 48 acres it was to acquire from the city, entailing an average density of 14.06 units per acre. According to now-retired Upland Community Development Director Jeff Zwack, the city would close out the athletic field component of Cabrillo Park, hand those 16 acres over to Lewis along with 32 of the 52 acres the city owns in Sycamore Heights south of the 210 Freeway and allow Lewis to obtain an entitlement to blanket both properties with attached and detached homes, what in some cases could be considered to be single family residences, in other cases would be described as duplexes or triplexes, in still others condominiums or townhomes and perhaps even some apartments. Lewis would then purchase, according to Zwack, 45 acres currently owned by Holliday Rock located in the city’s historic flood zone within the northwestern portion of the city and cooperate with the city in constructing ten soccer fields, two baseball diamonds, concession stands, maintenance structures and an office building on that property to create what was to be a major recreational amenity for Upland and its residents, referred to as the Upland Sports Complex.
The proponents of that exchange, primarily Lewis executives and a coterie of the company’s supporters inside and outside of City Hall, were initially confident that a sizable cross section of Upland residents, primarily the parents with children involved in youth sports, would embrace the idea. That enthusiasm for the sports complex concept would allow the exchange to glide to approval, they believed.
The pending loss of the soccer fields at Cabrillo Park on 11th Street between Benson and Mountain avenues, which is within reasonable walking and driving distance for residents in the southwest quadrant of Upland, and the misgivings of American Youth Soccer Organization officials that the surrendering of the fields might hamper its function in Upland, resulted in both a questioning of the intent and wisdom of the trade, accompanied by protests. Concurrently, city residents were given indication that use of the yet-to-be-constructed sports complex would involve user fees which would potentially disenfranchise certain leagues or members of the public.
And in a coincidence of bad timing, the city had in March approved the sale of 12 percent of what is considered to be the city’s recreational centerpiece, Memorial Park, to adjoining San Antonio Regional Hospital for use as the site of a multistory parking structure to accommodate two recent expansions of the medical facility. The parkland sacrificed in that sale included a Little League field that had been in use for more than 45 years. There was lingering uncertainty as to what the terms of Lewis’s contribution toward the creation of the sports complex was to be, including how much the company and how much the city were to contribute toward that project’s completion. City officials recently stated that the city did not have sufficient money on hand earmarked to undertake routine maintenance and upgrading of the parks the city already has. Thus, the closure of the Cabrillo Park soccer fields represented a potential phasing out of some of the youth sports venues in the city for some time to come.
With city officials’ true intent under question, and the suggestion that the Lewis Group of Companies was seeking to profit by manipulating city officials into a commitment that would further erode the city’s public recreational venues, a public relations maelstrom was brewing and Lewis withdrew the request to obtain the 16 acres at Cabrillo Park. Instead, at a public forum in Upland on July 12, a Lewis spokesman announced his company would forgo the land trade for the Cabrillo Park property. The revamped intent was for the city to simply trade 32 acres in Sycamore Hills to Lewis, which would then obtain sufficient acreage from Holliday Rock consisting of property containing a defunct set of quarries north of the I-210 Freeway to construct a scaled-down sports complex, which would entail three soccer fields and a single baseball diamond. Concomitant with the trade was an understanding that Lewis would also be granted an entitlement to build 475 units on the 32 acres it received in trade from the city, a density of 14.84 units per acre, prior to Lewis becoming involved in any of the normal project planning processes.
It was announced that the city would take up the ratification of the trade before the end of September. It is now known that at its September 24 meeting, the city council is to hold a public hearing and vote on making the land swap.
City officials are committed to carrying it out. The Lewis Group of Companies is banking on the land trade going through. Inquiries to the city with regard to the precise terms of the deal have been rebuffed with the assurance that by 6 pm on Thursday September 20, the agenda for the September 24 meeting will be publicly posted and that it will contain a full range of back-up material for all items to be considered by the city council, including the staff report previewing the land swap and recommending it to the council, along with attendant documents, resolutions, maps and contracts. Thursday at 6 pm will be 97 hours prior to the public portion of the Monday night meeting’s 7 pm commencement, which is 25 hours more than the 72 hour agenda pre-posting requirement required by California law. The window for the public to weigh in on the land exchange will come during the Monday night hearing, the only opportunity for residents to make their feelings known prior to the council’s final decision.
A fair cross section of Upland residents already believe city officials are not giving them and their fellow and sister citizens adequate time and opportunity to fully examine the proposed land swap in all of its detail and implication before its scheduled approval. Several of them have expressed the belief that at the very least multiple public hearings pertaining not just to the trade itself but the plans for the residential development and its intensity of land use including the density of the massive subdivision along with the precise nature of the sports complex should be held before any vote is contemplated.
While some of those residents are not necessarily opposed to the trade eventually being made, they want the city to provide the city council and the Upland electorate adequate opportunity to vet the proposal in all of its intricacy and ramification before the matter is voted upon. Other residents have already reached the conclusion that proceeding with the land swap is contrary to the city’s interests.
Dede Ramella, an Upland resident, said that from a dollars and cents standpoint it appeared the city was getting ripped off in the deal.
“I cannot overstate my disappointment with the City of Upland and the way in which they are handling this land trade,” said Ramella. “As I understand it, the build-out value of the 32 acres of property that our city wants to give away to a local developer at no cost will be $213,750,000 if all 475 future homes sell at $450,000, which is the lowest priced new home available anywhere within the Sycamore Hills Development. So, knowing that someone is going to make at least $213 million dollars off a tract currently owned by Upland’s taxpayers, which our city will give away for free, creates questions. Why are the taxpayers getting the short-end of the stick again and why is this acceptable to our elected officials? In return for the developer getting the opportunity to make over $213,000,000, our city is only getting three soccer fields in exchange, plus a single baseball field, which will be constructed on land that has been mined, that is highly undesirable, on the side of the freeway and attached to a major mining operation. It will have one bottleneck entrance off Benson, no turning lane, without a stop light and 455 parking spaces.”
Ramella asked, “How are these two things equal and why would anyone in Upland, ever think so?”
Barbara Papa, a resident of Upland’s District 3, said, “I was horrified to learn that a public park in my district was being contemplated for reduction by our city and a local developer, who were ready to allow 220 multifamily townhomes to be constructed inside Cabrillo Park. And while I am very happy the general public was able to stop that, I am very concerned the residents of neighboring District 1, who have no representation on the Upland City Council, will be unable to stop another 475 residential units from being built upon 32 acres in that district currently zoned as public parkland and owned by the Upland taxpayers. And I am shocked our city is charging ahead with this, right before the general election and despite so much public outcry.”
A recurrent objection raised to the proposed land swap is that the property to be transformed into a sports complex is not suited for that use from the standpoint that it is proximate to a ten-lane freeway as well as the old Vulcan processing plant, which will expose the participants in youth sports at that venue to having to breathe vehicle exhaust and particulate matter. Accompanying objections are that the property, which involved a mining operation, has potential contamination issues, and that already fill dirt has been layered on top of those contaminants without a proper environmental impact report having been undertaken.
Brinda Sarathy, an Upland resident and a professor of environmental analysis at Pitzer College, noted that the site proposed for the sports complex “which is currently undeveloped, is wedged between the 210 Freeway directly to the south and a rock quarry used for mining by the Holliday family immediately to the north. The Lewis Group proposes to build a state-of-the-art sports complex on this land parcel. One of the potential benefits espoused by proponents of the sports complex project is that the greater number of playing fields will allow more people to access opportunities to engage in outdoor sports. It is important to weigh this project with the utmost care and consideration with regard to public health. Based on the scientific evidence, it would be inappropriate to evaluate the merits of this project by means of simple quantification (such as more sports fields are better than fewer sports fields) or an assumption that all physical exercise and activity are beneficial (that being more kids getting exercise is a good thing). In this case, context matters. The public, developers, and city officials need to weigh the risks of exposing players – especially children and other vulnerable populations – to concerning amounts of air pollution from traffic, against the benefits of physical activity, exercise, and access to sports fields. If outdoor playing fields are to be considered in the proposed location north of the 210 Freeway, research in the scientific and public health community recommends that such facilities be sited a minimum of 700-to-1,000 feet away from freeways, and that such projects incorporate mitigation designs such as vegetative buffers and berms. Such measures will help ensure that children and other vulnerable populations are protected from undue exposure to harmful air pollution from traffic when playing outdoors, and serve to preserve public health in the long run.”
Sarathy said, “What is important to note in relation to the outdoor sports complex proposal in Upland is that two things can be in contradiction. In this case, the benefits to the City of Upland from infill development along a major freeway conflict with the externalized costs to public health from outdoor exposure to air pollution from traffic.”
Mark Walters, another Upland resident, echoed Sarathy’s concern.
“No environmental assessments have been done for a future children’s sports park on the side of the freeway, next to an active rock quarry,” Walters said. “This is extremely concerning because Upland’s children and their health matter.”
Walters added, “I am very concerned about the failure to conduct recent traffic studies for multiple new development sites throughout the City of Upland.”
Upland resident Debbie Valera said city officials and the Lewis Group of Companies were giving inadequate consideration to, and providing insufficient mitigation of, the impacts of the land swap and its consequent developments in the area immediately surrounding the land in question.
“I used to routinely travel across the length of 16th Street to access the 210 Freeway from my Upland home, which is on the completely opposite side of the city,” Valera said. “However, I now avoid 16th Street and Baseline [into which 16th transitions near the Claremont border] like the plague because the traffic is so horrendous on those streets. Last Friday, during rush hour the traffic trying to access the Baseline exit ramp from the 210 East was so intense those vehicles were backed up on that very long exit ramp all the way onto the freeway. This did not involve the vehicles bound for Claremont, but only the traffic trying to turn right at the Baseline stoplight to drive into Upland. The residents of Claremont, who were on that same exit ramp but turning left at the stop light to drive into Claremont, had very smooth sailing and only five cars ahead of them in that line. I feel Upland City Manager Bill Manis and local developer Randall Lewis are both very lucky to live in Claremont. They would not accept this type of urban sprawl in Claremont, and for very good reasons. I am shocked to hear they think adding another 475 compact homes inside 32 acres of North Upland parkland, which is located right off of Baseline and a stone’s throw away from those 210 Freeway exits, is a good idea.”
Valera asked, “Why has no traffic impact study been done to date, to see if industry professionals agree with them?”
Another Upland resident, April McCormick, has taken issue with virtually all aspects of the land swap. She characterized as “shady” that the “council will be voting on a resolution allowing the City of Upland to trade its 32 acres of public parkland to the Lewis Group of Companies, which will be allowed to build 475 housing units there, and they will accept in trade 45 acres of wasteland on the side of the freeway which has been mined for aggregate. Why is our city council allowing this?”
McCormick continued, “No environmental assessment is being conducted on the future sports park and no traffic study is being conducted for the major subdivision on land our city is literally giving away to this local developer.”
McCormick noted that the city is transitioning to a ward electoral system in which the city has been divided into four districts that are easiest described as quadrants, such that the 1st District covers the city’s northwest, the 2nd District comprises the city’s northeast corner, the 3rd District corresponds to the city’s southwest niche and the 4th District the city’s southeast confines. In November the first election under the district representation system will take place, in which races will be held in the 2nd, 3rd and 4th districts. An election for the 1st District will not take place until 2020, during which election the mayor’s post will be contested as well. All residents of the city registered to vote are eligible to vote for mayor. In the ward races, only those living within each district are eligible to run in that particular district and only those living within each respective district can vote in that district’s election. At present, there is one council member, Carol Timm, living in District 4 and one council member, Gino Filippi, living in District 3. District 2 is home to the other current council members, Sid Robinson and Janice Elliott, as well as Mayor Debbie Stone. Thus, District 1 does not have any representation on the council and will not have any representation on the council until after the 2020 election. Both the sports complex and the 475 unit subdivision that the Lewis Group of Companies intends to pursue if the land swap is approved are in District 1.
“The future explosive growth that will take place here is in District 1, which has no current representative on the city council and will not have a representative for nearly two-and-a-half more years,” McCormick said. “No one is looking after the interests of District 1’s residents. There is no one on the council to balance out what members of the council from these other districts want and will impose on the residents of District 1. This is in their backyard, but they have no say about it, whatsoever. How much more unfair can this be?”
Furthermore, McCormick said that both the city and the Lewis Group of Companies had engaged in a “bait and switch” maneuver by selling the concept of the sports complex in one form and now undertaking it as a scaled-down version that will entail even less of a contribution from the Lewis Group of Companies. McCormick said the city council took action that created a pressing need for the city to find and/or create further recreational amenities and sports fields and facilities. Those officials are now offering the sports complex as a means of redressing the void they have created, she said. “I hope the community can recognize there is a pattern here,” McCormick said. “On March 25, the city council voted 4-to-1 to sell 12 percent of Memorial Park to San Antonio Regional Hospital without a vote of the people. They then followed that with the announcement that they were going to hand over the 16 acres of soccer fields at Cabrillo Park to the Lewis Group of Companies, accompanied by the announcement that a new sports park or sports complex was on the horizon in north Upland and that to get it we only needed to go along with this land trade.”
At that time, before he resigned, Upland’s community development director was Jeff Zwack. “The city’s top planner, Jeff Zwack, said the new sports complex in north Upland was going to have 10 soccer fields, two baseball fields, concession stands, plus maintenance structures and office buildings to manage the park,” McCormick said. “If you look at what the Lewis Group of Companies is now proposing and which the city council is ready to approve, it is a far cry from that. What a Lewis representative said on July 12 is that the north Upland sports park will have three high school-size soccer fields, not 10, and there will be one baseball field, not two. This is way different from what was originally promised.”
At any rate, McCormick said, the sports complex is an illusory gift, one which is being offered to the city as a way for the Lewis Group of Companies to meet its corporate goals rather than serve the interests and well-being of Upland’s residents. She reiterated the objection to having an outdoor sports venue so close to a freeway. “I wonder how may Upland parents want their children playing ball on the side of a busy Southern California 10-lane freeway and sandwiched in between that and a massive mining operation?” McCormick asked, somewhat rhetorically. “It sounds like enough exhaust and dust would be inhaled in between those two things to easily aggravate childhood asthmatic conditions and atopic allergy sufferers alike. This would happen with no environmental assessment having been performed to determine if this mined property at this location is safe for Upland children to play ball on. Yet our city council is charging ahead like someone has a gun to their heads.”
McCormick noted that Upland Councilman Sid Robinson had credited one-time Upland Police Chief Martin Thouvenell, who served as interim Upland City Manager from July 2016 until last December and is currently serving as a management consultant to the city, with having brought the city and the Lewis Group of Companies together to initiate the discussion of the land swap. She said she found troubling Thouvenell’s willingness to represent the trade as one that was worth pursuing, and that as a consultant to the city he should have been far more exacting in his analysis of the terms of the swap and what it would entail before taking it to the level of having senior city staff or the city council consider it. “So, the question has to be asked: Is Marty also consulting for Lewis Properties?” McCormick said. “Is Lewis ever going to reward Marty in any way, shape or form for his using his Upland city connections in ways that have been invaluable to the Lewis Group of Companies in setting up this opportunity for them to create at current prices a project estimated to be worth in excess of well over $200 million?”
In response to the Sentinel’s inquiry as to whether Thouvenell was simultaneously consulting to the city and to the Lewis Group of Companies, Thouvenell on September 13 responded, “I am not working for the Lewis company and I never have. This is the most ridiculous accusation I’ve heard in months.”
Prior to Thouvenell’s response, Upland Assistant City Manager Jeanette Vagnozzi had told the Sentinel, “He [Thouvenell] is not working for the Lewis Group of Companies or Lewis Operating Company or Lewis anything. We would not allow him to work both sides of the street, to work for us and work for Lewis. That would be a conflict of interest.” That Thouvenell was not in the employ of the Lewis Group of Companies in any capacity, Vagnozzi said, was something she knew with “absolute certainty.”
City officials and Lewis corporate officers were unprepared at this point to offer a justification of the proposed trade in the face of the criticism being leveled at it.
The Sentinel made multiple efforts to engage both Randall Lewis, the vice president of marketing for the Lewis Group of Companies, and Upland City Manager Bill Manis in a discussion of the prospective land swap, the benefits it represents to the City of Upland and its residents, and to allow them to mount a defense of proceeding with the property trade, the entitlement of the 475 residential units in Sycamore Hills and the development of the sports complex. The Sentinel’s letter to Lewis can be viewed here: http://sbcsentinel.com/2018/09/randall-lewis-september-12-email/
Neither Lewis nor Manis responded to the Sentinel’s efforts to reach them by press time.
The Sentinel in the alternative sought to have Vagnozzi field questions about the proposal. She said on September 13, “Bill Manis is out of the office at a conference. He took the lead on the project. I have knowledge with regard to some particulars, but I do not want to comment, since what I know is incomplete.”
Meanwhile, as the September 24 city council meeting at which the land swap is to be considered and a vote for its approval is scheduled approaches, some Upland residents believe the city is moving ahead too quickly, and that more time should be given for all parties to size up the proposal than the four days between the public release of city staff’s report on and recommendation with regard to the swap on September 20 and the September 24 council meeting. A striking issue, they say, is that the entitlement, either actual or implied, to be given to Lewis to construct the 475 units should not be provided with the approval of the land exchange and prior to extensive public hearings. The city appears to be on the brink of granting the Lewis Group of Companies special treatment in the form of granting such an entitlement prematurely, they say, before the company owns the property.
For these reasons, several residents want the city council to hold off on making a decision with regard to the land trade.
Natasha Walton, a city resident and wildlife biologist by profession, pointed out that the city had invested in the property that is to be traded to Lewis beyond just purchasing it. Noting she has “many concerns about this abandonment of roughly 32 acres of Sycamore Hills parkland,” she said topping them is “my main concern, the legality of this abandonment plan. Because city soil work documents do show that the city paid for improving this Sycamore Hills parkland, I believe that the city should comply with California Code sections 38440-38462 and carry out a citywide election.”
Walton said, “I think that carrying out an election to determine whether or not to abandon this Sycamore Hills parkland would be the most fair way to approach this issue for the community. An election would not only allow current Upland residents to have a voice on this issue, but an election may also allow time for the new residents of Sycamore Hills to move in and also be able to weigh in on this vote. Any delays in this abandonment decision would also allow for the effects of all of the current developments to be better understood before the city makes such an important decision to abandon this parkland and, thus, embrace more development in this Sycamore Hills area.”
Irmalinda Osuna, a 15-year city resident who was instrumental in the successful opposition to the transfer of the 16 acres of soccer fields at Cabrillo Park to Lewis and is now challenging Filippi in this year’s District 3 council race, said, “My recommendation is to postpone the city council vote for the park abandonment scheduled for Sept 24th so that voters have an opportunity to engage with the process and be involved as full stakeholders in any discussion of abandonment of public resources. Excluding citizens’ right to a vote goes against the values of a democratic and transparent political process.”
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Lorena Corona is running for mayor, she said, “because it is time for change. During the last decade, the City of Fontana has been growing out of balance. The warehouse over-development, marginalization of entire neighborhoods, irrational city permit requirements/licensing fees, and perhaps most disturbing of all the city alignment with the current federal administration handicap the future of our children and generations to come. I would like to be an agent of change for Fontana by enacting progressive municipal policies and stimulating and increasing employment opportunities for differently-abled persons and upholding policies to support our veterans.”
Corona said her intent is to “support small local businesses, economic/workforce development, and entrepreneurship, create jobs with liveable wages, stimulate affordable housing and infrastructure development, and promote financial stability and ameliorate current burdens of income inequality.”
Asserting that “For the last two decades, I have been advocating for change and equality at different levels,” Corona said she considers herself qualified to take the reins of the city. “I possess the technical skills, knowledge, and experience to bring change to the City of Fontana. From 2005 to 2007, as a student trustee, I advocated at the state and local level for equitable educational opportunities for the Inland Empire. During this time, I was elected to represent over 23,000 students at Chaffey Community College. From 2012 to 2016, I was elected to the Fontana Unified School District Board of Education. Some of our biggest accomplishments during my time as a board member included adopting the transition of three governing boards, signing one of the largest solar contracts in California, approving, financing, and establishing the first pre-international baccalaureate/dual language immersion elementary school in Fontana, and approving a substantial salary increase for district employees while weathering the struggles of a recovering economy.”
She is distinguised from her opponents for mayor in Fontana, Corona said in that “My commitment lies with the people of Fontana and not with a political party. While I take pride in identifying as a Democrat, I will not compromise the welfare of the community for personal ambition. Unlike my opponents, I am running a grassroots campaign. Family, friends, neighbors, and community members are walking the streets carrying a message of hope. Together, we can make a difference.”
Corona said, “The major issues facing the city of Fontana include the overdevelopment of warehouses/logistic centers and the lack of affordable housing and infrastructure development. The massive warehouse projects entering our city bring air, traffic, and noise pollution to our neighborhoods, accelerate the decay of an already overwhelmed freeway system and perpetuate the cycle of poverty within our communities. The lack of affordable housing units is exacerbating the home insecurity crisis and contributing to the growing number of homeless individuals.”
In assessing how she believes those issues should be redressed, Corona said, “Warehouse overdevelopment should be addressed by etablishing accountability for those who approve the city rezoning, identifying the number of local officials who directly benefit from this rezoning and establishing legal liabilities, and looking at the viability of reverting some of the rezoning.” In addition, she said the City of Fontana “should assess the viability of a community benefits agreement with the current warehouses.”
Continuing, Corona said, “A strategic approach to address the lack of affordable housing would be implementing innovative land use strategies such as the creation of a community land trust aimed to prioritize the use of vacant public land for new affordable housing developments. This would rein in the warehouse overdevelopment while addressing the unmet housing needs of our community. We have to remember, housing is a human right.”
The city can pay for the solutions she suggests, Corona proposed, by “the creation of community benefits agreements, which would provide the initial funding to be invested in the infrastructure and/or the creation of new affordable housing development. We also have to assess the current tax breaks and/or accommodations given by the city to corporations, warehouses, and private businesses to determine the rate of return and viability. Local, state, and federal grants would be an additional source of resources that would allow us to address the unmet needs of our community. We have to understand that the better our community is, the more businesses will thrive.”
She possesses experience relating to government, Corona said. Since 2010 she has been the manager of governmental/external relations and transitional services at Chaffey Community College, in which assignment, she said, she manages “all aspects of governmental and legislative relations, including timely and accurate responses to legislative requests. I conduct research, monitor legislation, and organize advocacy efforts on behalf of the college district at the local, state and federal level.” In this capacity, Corona said she has been called upon to “establish and maintain relationships with elected officials, governmental agencies and community organizations. I have developed and implemented programs to address food and housing insecurity and unmet needs of the student population.”
From 2012 to 2016, she held the elected position of board member with the Fontana Unified School District, Corona pointed out. In that role she voted on the adoption of the district’s budgets which approached and then exceeded $400 million annually. “The district had over 5,600 employees to serve more than 43,000 students in 44 school sites,” she said. “I championed the adoption of the Fontana Unified School District Local Control Accountability Plan.” On the board, Corona pushed “policies to effectively motivate and lead a high performance management team in the areas of instructional services, special education, schools safety, human resources, property management, capital improvements, facilities, communications, and information technology,” she said. “As a board we were instrumental in approving plans to effectively grow the organization and to ensure financial strength and operating efficiency. I personally led ongoing meetings to bridge national, state and regional partnerships.”
While on the school board, Corona participated as a member of the executive committee with the San Bernardino County School Boards Association in San Bernardino, as well as being a member of the California School Boards Association in Sacramento.
In 2005, she served a short stint as an appointed member of the Fontana Parks and Recreation Commision.
At Chaffey College she was the president of the panel of student trustees.
Corona was the chairman of the Fontana Youth Accountability Board from 2002 until 2005 and participated in developing and establishing a tutoring program at the Fontana Police Department to assist at-risk students with their school work. The plan contained an assignment of community service, skill-building classes, counseling and/or restitution.
Corona has lived in Fontana since 1997.
Born in Sacramento to an immigrant Mexican-American family, she returned with her family when she was seven months old to Jalisco, Mexico, where she completed her basic level schooling.
“In 1997, I returned to the United States as a single mother, unable to speak English, unemployed, and afraid,” she said. “Inspired by these obstacles, I enrolled at the San Bernardino Adult School to learn English. In less than a year I transferred to Chaffey Community College to continue my higher education. Within five years, I earned five associate degrees and served as president and student trustee for two terms. From 2005 to 2010, I attended Harvard University, where I earned a bachelor’s and a master’s degree in management with an emphasis in non-profit organizations.”
Currently unmarried, she has a 21-year-old daughter who is working toward a bachelor of science degree in business administration at the University of La Verne. “I also have the honor of living with my parents who inspire me everyday,” she said.
Corona said in areas beyond the immediate purview of the city she wants “to work to combat climate change, lead battles over refugees, immigration and other federal actions that threaten our diversity, and sponsor LGBTQ equality. I want people to know that I am committed to the welfare of our community. I know what it means to be afraid. I know what uncertainty feels like, to not know where your next meal will come from or how the rent will get paid. I know what it feels like to be discriminated against because of my lack of English. I know what it feels like to be harrassed by law enforcement. But I also know what it feels like to graduate from an Ivy League institution with honors, to be able to provide for my daughter and give her the opportunities I did not have. I know that the American Dream is within our reach. Our city deserves better opportunities and it is up to you and me to come together as a community and make the right choice for Fontana.”
Kathleen Rollings-McDonald, who has functioned as the primary jurisdictional authority in San Bernardino County for the last 15 years, will be leaving as a contract senior staff member with the San Bernardino County Local Agency Formation Commission on September 27.
While some county residents were heartened at the prospect of Rollings-McDonald’s departure and the prospect that her exit presages a shift in what is considered an institutional bias in favor of government over citizens in the commission’s function, her successor yesterday gave indication the policies that are in place by which governmental agencies are afforded an advantage over residents or groups of residents when they have disputes over jurisdictional formation or authority will essentially remain in place.
San Bernardino County’s Local Agency Formation Commission was established in 1963 simultaneously with the creation of parallel agencies in California’s other 57 counties, which were given the authority to function under the auspices of California Government Code Sections 56375 and 56133.
In 2003, Rollings-McDonald, who had been a Local Agency Formation Commission (LAFCO) staff member since 1979 and who was then the deputy executive officer of LAFCO, succeeded James Roddy as its executive director shortly before Roddy’s death. For seven years, Rollings-McDonald was the face of the Local Agency Formation Commission. In 2010, she retired after being a public employee for 35 years and eight months and began collecting an annual pension of $222,203.10. Almost immediately, she went back to work for the county in a contract capacity, retaining her title as LAFCO executive officer. Her contract called for her working an average of 19.2 hours per week, 50 weeks per year, at a rate of $121.87 per hour, or an annual salary of slightly over $117,000 per year.
While working in the capacity of contract Local Agency Formation Commission executive officer, Rollings-McDonald continued to collect her pension. According to available documentation, Rollings-McDonald was paid $339,268, salary and pension, in 2015-16 and drew similar amounts in 2016-17 and 2017-18.
Effective July 1, Samuel Martinez, a fifteen year LAFCO staff member, acceded to the position of the Local Agency Formation Commission chief executive officer. Rollings-McDonald, who is to participate in LAFCO’s September 19 meeting, will depart from the county’s active payroll eight days later.
While a significant or majority of the issues dealt with by the Local Agency Formation Commission entail disputes between governmental entities, others relate to jurisdictional clashes or annexation processings in which common citizens or landowners find themselves at odds with governmental entities. Under Rollings-McDonald’s leadership, LAFCO has consistently rendered decisions in favor of the governmental entities with only marginal exception. For county residents involved in or touched by those decisions and a growing number of political observers, this has raised concern about the commission and the tendency for it and its staff to cut procedural corners and its failing to protect common citizens from the overreach of government.
In recent years and presently, the most visible indication of the dispute between residents of the county and the county’s existing governmental entities is that relating to the wholesale shuttering of local fire departments and the superimposition of the county’s fire service provision in those areas. Beginning in 2015 and continuing until last year, the cities of San Bernardino, Needles, Twentynine and Upland saw their municipal or local fire departments dissolved and all residents living within those cities’ respective city limits forced into accepting their annexation into a county fire service zone, which resulted in the county’s fire department taking on fire protection service responsibility. In the cases of San Bernardino, Needles and Upland, the residents of those cities previously had their city’s respective fire service provided to them as a consequence of standard municipal function and saw the cost of those services defrayed through the city’s normal stream of revenue including property tax receipts. With the closure of their municipal fire departments, those residents had imposed on them a fire service assessment to accompany their annexation into the county fire district. The same annexation process occurred in Twentynine Palms; the primary difference there was that previously the fire department’s operation had been managed not by the city but the local water district, which was augmented with a special tax paid for by the district’s service customers. In all of the cases, annexation into the district cost property owners an additional $146-to-$158 per year, levied as an annual assessment on their property tax bill. There was no commensurate refund to those annexed into the district, meaning the cities in question were allowed to keep that portion of the residents’ property taxes that were previously used to pay for fire department operations. This amounted to a new tax on those brought into – that is, forced into – the assessment/service district. While California law requires that any newly imposed tax be approved by a majority vote of those on whom the tax is to be levied, city officials in San Bernardino, Twentynine Palms, Needles and Upland skipped out from under that requirement by having the Local Agency Formation Commission approve using what is referred to as a “protest process” to serve as the vote. Under the protest process, those who are being annexed are alerted to the pending annexation and given a 30 day window in which they can file a letter of protest with regard to the annexation. Those landowners or voters who submit such a letter of protest are held to have voted against the annexation. For them, a vote of no is entered. Those who do not file a letter of protest are deemed to have supported the annexation, and for them a vote of yes is entered. Because of the level of apathy and dearth of information relating to such goings-on, protest processes virtually never result in an annexation being denied. This year, the county has initiated an annexation of virtually all of the unincorporated county areas in the desert region of the county into Fire Protection Zone 5. The county used LAFCO to undertake the same protest process to ratify those annexations.
Fire Protection Zone 5 is the same zone into which San Bernardino, Twentynine Palms, Needles and Upland annexed. Fire Protection Zone 5 was initially formed to provide fire protection and emergency medical service to the communities of Helendale and Silverlakes, which lie out in the desert between Victorville and Barstow. In undertaking the annexation of Upland into Fire Protection Zone 5, the city of Upland, the county and the Local Agency Formation Commission structured it in such a way that the unincorporated community of San Antonio Heights, which borders Upland, was absorbed into Fire Protection Zone 5. The San Antonio Heights Homeowners Association, with virtually all of its members resistant to the annexation, engaged an attorney, Cory Briggs, to sue over the annexation. After considerable legal sparring between Briggs and lawyers for both Upland and the county, the matter appears headed to trial. At stake in that litigation is whether a district such as Fire Protection Zone 5, which is not contiguous with other zones, can leapfrog over geographically intervening land and expand itself through the annexation of isolated property or properties, as was done in the San Bernardino, Twentynine Palms, Needles, Upland and San Antonio Heights annexations. The outcome of that trial could potentially impact all of those annexations including the ongoing ones absorbing virtually all of the county’s unincorporated desert communities. Inherent in that litigation is the soundness of the direction that Rollings-McDonald gave to the LAFCO board in her counsel that the board should side almost exclusively with governmental entities in their jurisdictional run-ins with residents.
The out-and-out bias against residents the Local Agency Formation Commission continually manifests is reflected in the composition of the LAFCO board of directors. The board consists of seven members, six of whom are drawn from the county’s public agencies, and what is supposed to be a public member untied to government. At present, the board includes Cucamonga Valley Water District Board Member James Curatalo, Mojave Water Agency Board Member Kimberly Cox, San Bernardino County Supervisor and Chairman of the Board of Supervisors Robert Lovingood, Highland Mayor Larry McCallon, San Bernardino County Supervisor James Ramos, and Rancho Cucamonga Councilwoman Diane Williams. The member of the board representing the public is Jim Bagley, a former mayor and city councilman in Twentnine Palms.
The Sentinel spoke yesterday with Samuel Martinez, who displaced Rollings-McDonald as LAFCO executive director more than two months ago, and sought to determine if his ascendancy with the agency betokens any change with regard to the balancing of the interests of residents against those of governmental authority. Based on Martinez’s responses, that does not appear to be the case.
Previously, in speaking directly to the Sentinel, Rollings-McDonald indicated that she had acceded to using the protest process to facilitate the requested annexations, her reasoning being that the annexations were requested by elected officials, whom she deemed to be the duly-embodied representatives of the local population whose direction to create the assessment districts reflected both practical consideration and the will of those who had elected them. While conceding that both the county as a whole and LAFCO had authority to use another form of ratifying the annexation than a protest process, she defended doing so as legal.
Asked point blank how the Local Agency Formation Commission under his direction would respond to a future annexation request and whether it would use the traditionally democratic up-and-down vote of those residents to be annexed or default to using the protest process to ratify the annexation and the imposition of an assessment district as has been done consistently recently, Martinez indicated he would use the latter.
“We have provisions in our policy that would call for qualifying any proposed annexation through what are protest proceedings,” Martinez said. “That is what LAFCO calls the conditional authority of annexation. If there are any further annexation requests we would use the protest process. The law requires us to use the protest process under Government Code § 5700.”
With regard to the prospect of the recent spate of annexations being undone by a court ruling in the case brought by Briggs on behalf of the San Antonio Homeowners Association and any adjustments to the manner in which LAFCO operates as a result, Martinez said, “I can’t comment on the Upland situation because it is under litigation.”
Kari Leon said the beauty of Apple Valley and her desire to preserve it motivated her to run for town council.
“Apple Valley is where I chose to raise my family and start my business,” she said. “My business experience and passion for our community have instilled in me the desire to seek this office and be a strong advocate for Apple Valley residents.”
She said the skills she has honed in her real estate career have qualified her to hold the position of town councilwoman. “Building two successful companies in the last dozen years, while navigating the ever-changing real estate market, has uniquely prepared me to make fiscally responsible and reliable decisions to navigate through the challenges that our town faces,” she said.
That real world experience taken together with the consideration that she is both a resident and an entrepreneur in town, she said, distinguishes her from many of her opponents. “I am a business owner in Apple Valley for over the past 12 years and I currently serve as the president of the High Desert Association of Realtors and I am a catchiest at my church. In the past I was an Apple Valley Chamber of Commerce board member, I was a board member of the National Association of Hispanic Real Estate Professionals, on the Victor Valley Hospital Board of Trustees, and on the board of the Sunset Hills Children Foundation. I am a very active member of our community.”
If elected, she said her three priorities upon taking office would be “ensuring our town makes fiscally responsible decisions, moving forward with the acquisition of our water supply to stop abusive rate increases, and maintaining Apple Valley’s ‘Better Way of Life’ by improving public safety and preserving our open spaces and parks.”
In seeking to achieve and maintain a sensible and balanced budget, Leon said, “I hope to bring the same fiscally conservative approach that I have applied as a business owner over the last 16 years to the town council of Apple Valley. I am committed to both maintaining a balanced budget and rebuilding our town’s reserve fund.”
She said she is fully in favor of the already underway effort to force, through the use of eminent domain, having Liberty Utilities sell the Apple Valley Ranchos Water Company, which has been the town’s water purveyor since it was founded by Newt Bass and Bud Westland in 1945. Liberty in 2016 closed a deal to purchase the water company and its 24 wells from the Carlyle Group. Leon said it is wisest for the town, which bypassed earlier opportunities to take ownership of the town’s water system, to bite the bullet and seize control of it now. “It is vital that we continue to move forward with the acquisition of our town’s water supply to stop abusive rate increases,” she said.
To maintain Apple Valley’s trademark “Better Way of Life,” Leon said, the town should strive to make certain its residents have a vested interest in the community. “Ensuring accessibility to home ownership has many benefits for families and communities, but it must be done in the responsible way,” she said.
Leon said town government should engage itself in ensuring public safety and the delivery of critical services but should not get involved in excessive regulation or micromanagement or put itself at cross-purposes to the lifestyles, values and pursuits of the town’s citizens. “It should be the goal of our town council to put forward policy that strikes the best balance between preserving the way of life that we all hold dear in Apple Valley and individual property owner rights. I believe that this can be done without having to impose abusive tax increases or making cuts to town departments that leave our community worse off than before,” she said.
Leon said she has previous experience operating in conjunction with government. “I have had experience working as an escrow officer with The Department of Housing and Community Development, and the Department of Veterans Affairs transferring title to more than 3,500 homes,” she said.
Leon has been an Apple Valley Resident for over 41 years, having first moved to the High Desert Area with her family as a four-year-old in 1967. She attended Apple Valley High School and graduated in 1980. Her daughter graduated from Apple Valley High School in 2000 and her son graduated from Granite Hills High School in 2002. She has a granddaughter currently attending Apple Valley High School.
A licensed real estate broker, she is the owner of Agio Real Estate, Inc. and the owner of Alliance Rendezvous Escrow, Inc.
She and her husband Paul have been married for 37 years. In addition to their two children, they have what she referred to as “six amazing” grandchildren.
Addressing the town’s voters directly, Leon said, “I would be honored to earn your trust and vote.”
Lionel Dew said he is running for city council in Victorville because of what he and others believe he can accomplish in that position.
“I am a proven leader of twenty-one years in the United States Air Force with executive experience in the private and public sector,” he said.
His qualifications for the post consist of his experience and accomplishments in volunteer and civic positions which have given him experience with the same issues the council deals with, most notably that of regulating land use in the City of Victorville.
“Currently, I am a planning commissioner of the City of Victorville,” Dew said. “Locally, I’ve served as president of several boards, elected, appointed and/or selected. My tenure of service on the County Sheriff Information Exchange and Education Committee is of great value. Additionally, I have served in the administrations of Governor [Gray] Davis and [Arnold] Schwarzenegger.”
He is distinguished from others running for the council position, Dew said, by his mental agility and practical experience which he consistently applies to achieve positive results. “Being known as an independent thinker and problem solver has afforded me to work well with colleagues,” he said. “Issues are addressed and problems are solved by involving other stakeholders in utilizing their expertise.”
The major issues facing the city and his primary objectives in seeking a council position, he said, is “safety, security and a thriving economy that produces jobs and careers.”
Ensuring that the city has adequate financial resources to provide basic services and carry out programs that are beneficial to the city’s residents can be done by adhering to sensible budgetary restraints and not living beyond the city’s financial means, Dew said. “I think checks and balances are essential,” Dew said. “Plans warrant review, adjustments and implementation with diligence and safety concerns.”
He is not a wild-eyed revolutionary looking to make radical reform of local government, but rather someone who believes the community should steadily build upon the foundation of the improvements and progress it has made in the past, Dew said.
“We have a competent staff of experts and an excellent new city manager who adheres to the expectations of the governing body,” Dew said.
Dew said his military experience, business experience and time as a city official on the planning commission has provided him with an understanding of how government works and a realistic expectation of what can be accomplished within the parameters of government. This will afford him and the constituents he is seeking to serve an efficiency in governance, he said. “As an executive it will be my responsibility to assess complicated and detailed information,” he said. “As a governing official my responsibilities are executive, administrative, legislative and judicial.”
He has lived in Victorville for more than two decades, Dew said, and his civic and community involvement makes him intimately familiar with the city’s institutions and officials. “More than living in Victorvile over twenty years, I have contributed with others for the betterment of Victorville,” he said.
Dew is a graduate of Victor Valley College and attended Southern Illinois University.
Retired out of the Air Force, he is currently employed as a real estate investor. He has a wife and children but no grandchildren, yet.
“It’s known that some individuals pursue public office as a result of their personal agendas,” Dew said. “I am committed to the well-being of every child, every family and every person in Victorville. It is an honor to serve others.”
The slipshod investigative techniques used by the San Bernardino County Sheriff’s Department and Deputy Luis Ortiz in particular will likely cost San Bernardino County taxpayers in excess of $3 million, based on a 9th U.S. Circuit Court of Appeals ruling handed down Monday September 10.
That ruling, made by a three member panel and written by Judge Jacqueline H. Nguyen, upheld a previous ruling by Federal Judge Virginia A. Phillips that Ortiz had violated the Fourth Amendment rights of three girls, then aged 12 and 13, who were students at Etiwanda Intermediate School and had been bullied and physically assaulted by another student, when he arrested them on October 8, 2013 based on his assertion that they were uncooperative in his investigation of the incident.
“No reasonable officer could have reasonably believed that the law authorizes the arrest of a group of middle schoolers in order to teach them a lesson or to prove a point,” Nguyen wrote in the opinion.
While lawyers for the district and the county had sought to assert that Ortiz had probable cause for making the arrests, an audio tape of the attempted interrogation of the students established that Ortiz pointedly gave no regard to whether the girls he was arresting were perpetrators or victims of the bullying he was investigating.
In the lawsuit, the three students were identified only by their initials, S.S., L.R. and R.H. The three actual plaintiffs in the case consist of a parent of each of girls, who are identified as the underaged girls’ guardian ad litems, that is, those suing on their behalf. S.S.’s father, David Scott is so identified, as is Angelica Santana suing on behalf of her daughter L.R., and Dejah Hall, suing on behalf of her daughter R.H.
Those named in the suit as defendants were the County of San Bernardino, Deputy Luis Ortiz, Deputy Anthony Thomas and Deputy Andrew Garcia. In turn, the four defendants filed a cross-complaint, in so doing naming the Etiwanda School District; the school’s then-assistant principal, Balbina Kendall; and the school’s principal, Janella Cantu-Myricks, as cross-defendants. As the case proceeded, Garcia was dismissed from the lawsuit.
Identified by their initials in the lawsuit and in the ruling related to the suit’s outcome and its appeal but not named as a defendants are two other students, L.V. and A.J., whose action precipitated the investigation that resulted in Ortiz’s action leading to the lawsuit, along with two other girls, M.L. and H.P., whose actions for the most part were incidental to the circumstance of the suit, but were also arrested.
According to the ruling, “In September and October of 2013, seventh-grade student L.V. harassed and bullied several classmates, including plaintiffs L.R. and S.S., at the Etiwanda Intermediate Middle School in Rancho Cucamonga. On September 6, 2013, L.V. assaulted L.R. on the school’s playground. L.V. approached L.R. during a classroom break, grabbed her hair, and punched her in the face. R.H., the third plaintiff in this case, tried to pull L.V. off L.R. L.R. did not hit L.V. back, but the school suspended both girls. According to L.R.’s mother, Angelica Santana, the assistant principal, Balbina Kendall, told L.R. and Santana that it was school policy to suspend any student involved in a fight, regardless of who was at fault. After the incident, Santana asked school officials for help in filing a police report with the San Bernardino County Sheriff’s Department. Deputy Anthony Thomas, a school resource officer, met with L.R. and Santana about the altercation.”
A resource officer is a law enforcement officer given a primary assignment at a school or set of schools.
“Santana asked Deputy Thomas about filing a restraining order against L.V. to protect her daughter L.R., but he replied that it would not be ‘practical’ since the girls attended school together,” Judge Nguyen’s narrative of the appellate court’s ruling states. “Deputy Thomas also told his colleague, Deputy Ortiz, that he had taken a report regarding a fight on campus, but did not share any further details. Santana maintains that she told Deputy Thomas that her daughter was the victim of L.V.’s aggression, but Deputy Thomas’s police report described the fight as ‘mutual combat.’ A few weeks later, L.V. told other students that she was going to assault S.S. On October 2, 2013, S.S. confronted L.V. and said ‘[i]f you’re going to beat me up, get it over with,’ and ‘hit me, bitch.’ L.V. made good on her threat by punching S.S., who did not hit L.V. back. S.S. later successfully asked the school to change her schedule to separate her from L.V. Over the following weekend, L.V. and another student, A.J., attempted to assault L.R. and S.S. in a local park. The victims fled, seeking assistance at the home of a stranger, who allowed them to call their parents to pick them up.”
The ruling continues, “On the morning of October 8, 2013, Santana notified the school that L.V. had attacked her daughter, L.R., over the weekend, and that she was afraid L.V. would attack L.R. again at school. That same morning, L.R., S.S., and R.H. went together to the school office and asked to speak with someone about L.V.’s bullying and threats. No administrator was available to speak with them, and the girls were sent to class. Later, the three girls and two other students, L.V. and A.J., were summoned to a group meeting to discuss the conflict. Two other students, M.L. and H.P., were brought to the room shortly after.”
The ruling continues, “Assistant Principal Kendall had asked Deputy Ortiz to come to school in order to speak to the students. Kendall, Deputy Ortiz, and the school’s principal, Janella Cantu-Myricks, were present at the meeting. Kendall told Deputy Ortiz that she had gathered a group of female students who had been involved in an ‘ongoing feud.’ Kendall had previously told Deputy Ortiz that Etiwanda Intermediate School had made multiple unsuccessful attempts to stop the conflict and that the problem was escalating. Deputy Ortiz had responded to an ‘unusually high’ number of physical fights between students since the start of the school year. Kendall addressed the students first, stating that ‘the threats, the fights after school, the threats [to] fight [at] school . . . this needs to end.’ She told them ‘[s]o far as I know, all five . . . all seven of you are, have been part of this continuous argument, on campus and off campus. And that is why the officer, Officer Ortiz, is here today. We are going to put an end to this.’ Deputy Ortiz then spoke to the students, in an ‘attempt to mediate the problems between the two factions of students and verify the information provided’ to him by Kendall. Deputy Ortiz quickly formed the view that the students were unresponsive to his efforts and were behaving disrespectfully, based on their ‘body language and continued whispering.’ An audio tape of the incident, however, reflects mostly silence in response to Deputy Ortiz’s questioning; no student is captured on the audio as speaking loudly or being verbally aggressive. Within minutes after his arrival, Deputy Ortiz threatened to take all of the students to jail to ‘prove a point.’ He told the students, ‘And for the one lady laughing that thinks it’s funny, I am not playing around. I am dead serious that we are taking you guys to jail. That might [be], it might be-is, the most easiest thing to do . . . to wanting to prove a point . . . that I am not playing around. . . . Eventually, maybe, you guys will make it into high school, then I will have to deal with you even more. Here is a good opportunity for me to prove a point and make you guys mature a lot faster.'”
According to the 9th Circuit Court panel’s ruling, “At most, the tape reflects some whispering and quiet giggling from unidentified students. The two students who appeared to be the aggressors in the conflict, L.V. and A.J., both made comments to Deputy Ortiz suggesting that they would not stop their behavior. But no similar statements were made by L.R., S.S., or R.H. Indeed, the transcript shows that none of them spoke until Deputy Ortiz asked if they needed to be handcuffed, after he had initiated their arrests. Deputy Ortiz also said that he did not care ‘who is at fault, who did what. . . . To me, it is the same, same ticket, same pair of handcuffs.’ Deputy Ortiz then announced that he was arresting all of the students for unlawful fighting in violation of California Penal Code § 415. He called Deputy Thomas for backup, and together the two deputies cited and handcuffed all seven students. L.R. and S.S. were handcuffed in the classroom, and R.H. was handcuffed outside of the school while waiting for police transport. Six of the seven girls, including the three plaintiffs, were driven in police vehicles to the San Bernardino County Sheriff’s Department, where they were separated, interviewed, and released to their parents. L.V. – the alleged aggressor – was released to her father on the school campus. Deputy Ortiz later stated that he decided to arrest all seven girls, instead of releasing them to their parents, to avoid what he believed would be further disruption to the school’s campus, and to prevent potential conflict between the girls’ parents. The school took no disciplinary action against any of the seven students, and no criminal charges were filed.”
After the lawsuit was filed, the district court granted partial summary judgment to the defendants on several claims, but sustained other elements of the suit and set the case for trial.
Federal Judge Virginia A. Phillips, after hearing the case in district court, found that deputies Ortiz and Thomas had not acted reasonably under the circumstances. The 9th U.S. Circuit Court of Appeals panel stated, “[W]e agree with the district court that the arrests of L.R., S.S., and R.H. were unreasonable because they were not ‘justified at [their] inception.’ The deputies were given only generalized allegations of group bickering and fighting, not specific information about L.R., S.S., or R.H. At most, Deputy Thomas knew that L.R. had been in a fight on campus one month prior. [T]he Fourth Amendment requires particularized suspicion; Moreover, while the traditional Fourth Amendment analysis ‘is predominantly an objective inquiry,’ the ‘actual motivations’ of officers may be considered. And, here, Deputy Ortiz’s actual motivations are clear —he explicitly told the students that he was arresting them to prove a point and to ‘teach them a lesson.’ Deputy Ortiz told them: “I am not playing around. . . . Here is a good opportunity for me to prove a point and make you guys mature a lot faster. Then, unfortunate [sic] for you guys, you guys will probably now be in the system. You will have a criminal record. Just because you guys can’t figure something out here.’ He continued: ‘[H]ere is the thing right now . . . I don’t care who is at fault, who did what. You hear that? I don’t care who did what, who is saying what, and whose fault it is. To me it is the same, same ticket, same pair of handcuffs.’ Deputy Ortiz clearly stated that the justification for the arrests was not the commission of a crime, since he did not ‘care who is at fault,’ nor the school’s special need to maintain campus safety, but rather his own desire to ‘prove a point’ and ‘make’ the students ‘mature a lot faster.’ The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect. The special needs exception simply “do[es] not apply where the officer’s purpose is not to attend to the special need” in question. Indeed, where it is ‘clear from the testimony’ of the arresting officer that the seizure occurred for an impermissible motive, ‘[t]his alone is sufficient to conclude that [a] warrantless [arrest] [is] unreasonable.'”
According to the ruling, “The summary arrest, handcuffing, and police transport to the station of middle school girls was a disproportionate response to the school’s need, which was dissipation of what Vice Principal Kendall characterized as an ‘ongoing feud’ and ‘continuous argument’ between the students. We do not diminish the seriousness of potential violence between students, or the need for conflict resolution in the educational setting. But ‘[s]ociety expects that children will make mistakes in school –and yes, even occasionally fight.’ Deputy Ortiz faced a room of seven seated, mostly quiet middle school girls, and only generalized allegations of fighting and conflict amongst them. Even accounting for what Deputy Ortiz perceived to be non-responsiveness to his questioning, the full-scale arrests of all seven students, without further inquiry, was both excessively intrusive in light of the girls’ young ages and not reasonably related to the school’s expressed need. Ironically, the primary instigator of the conflicts, L.V., was the only one released to a parent at the school campus. An arrest meant only to ‘teach a lesson’ and arbitrarily punish perceived disrespect is clearly unreasonable. Under the circumstances of this case, we hold that the arrests of the students were unreasonable and in violation of the Fourth Amendment.”
The 9th U.S. Circuit Court of Appeals panel further found that even if Ortiz and Thomas had grounds to make an arrest of one or two of the students who had in fact assaulted other students, in arresting all seven of the girls the distinction was blurred between the offenders and the victims, the guilty and the innocent.
“The officers lacked probable cause to arrest under state law,” according to the panel. “Defendants alternatively argue that Deputy Ortiz had probable cause to arrest the students for violating California Penal Code § 415(1), which criminalizes ‘unlawfully fight[ing] in a public place or challeng[ing] another person in a public place to fight.’ Defendants’ reliance on Penal Code § 415(1) is a nonstarter for two reasons. First, §415(1) does not apply to school grounds; rather, a parallel provision, § 415.5 expressly covers this setting. As a ‘general rule . . . where the general statute standing alone would include the same matter as’ a more specific parallel statute, ‘and thus conflict with it, the special act will be considered as an exception to the general statute.’ Section 415.5 criminalizes unlawful fighting ‘within any building or upon the grounds of any school,’ but expressly exempts registered students from its scope. Applying § 415(1) to school grounds would eliminate that exception. Deputy Ortiz lacked probable cause to arrest the three plaintiffs. Other than general information from school officials about ongoing conflicts between a group of girls, Deputy Ortiz had no information suggesting that L.R., S.S., or R.H. were individually responsible as the instigators or aggressors instead of as the victims. In fact, had Deputy Ortiz even minimally inquired about the circumstances of the conflict, as he initially intended to do, he would have learned that the three plaintiffs had tried that very morning to report L.V.’s aggression to school administrators.”
The panel’s finding continues, “Defendants also claim that the students’ behavior in the classroom justified the arrest because there was reason to believe the students would engage in imminent fights. That assertion is belied by the audio record of the encounter, which ‘quite clearly contradicts the version of the story told by’ the officers. The students were mostly silent, only speaking to respond to the questions posed to them. But even taking at face value Deputy Ortiz’s claim that the girls were being disrespectful to him, and whispering among themselves, this conduct in no way rose to the level of probable cause that could have justified their arrests. In short, the evidence available to Deputy Ortiz was wholly insufficient to create probable cause to believe that any one of the three plaintiff students violated § 415(1).”
The 9th U.S. Circuit Court of Appeals panel took up the county attorneys’ assertion that Ortiz had probable cause to arrest the students for violating California Welfare and Institutions Code § 601, which allows a warrantless detention of a minor if there is “reasonable cause” to believe she is “persistently or habitually refus[ing] to obey the reasonable and proper order or directions of his or her parents, guardian, or custodian, or who is beyond control of that person.” The panel stated that “Assuming that Etiwanda Intermediate School could be considered a ‘custodian’ for the purposes of the statute, there was simply no evidence that S.S., L.R., and R.H. were ‘habitually refus[ing] to obey’ the directions of school officials. Because the arrests of L.R., S.S., and R.H. were unjustified, we also affirm the grant of summary judgment in their favor on the state false arrest claim. A law enforcement officer cannot be civilly liable for false arrest when “[t]he arrest was lawful. Lacking both justification and probable cause for their arrests, defendants cannot avoid liability for false arrest under state law.”
The 9th Circuit Court’s ruling sends the case back to Judge Virginia Phillips, who is to oversee the determination of damages by means of submitting the court’s findings to a specially impaneled jury or through settlement negotiations between the parties. In the initial complaint filed in 2014, Jerry Steering, who represented Scott, Santana, Hall and their daughters, sought $10 million in compensatory damages and $10 million further in punitive damages.
Seasoned court observers indicated Steering’s request was considerably beyond the likely monetary awards to be meted out in the case, given the entirety of the circumstance. Still the same, the three girls now have arrest records despite having been the victims in the circumstance that led to their false arrest. They, and Steering, appear to be headed toward a substantial payday.
Whatever the amount of money that will be conferred on them, the county and the sheriff’s department may continue to run a considerable risk in the department’s continued employment of Ortiz, who has been identified as a “rogue cop” in a national data base devoted to officers deemed as such.
Less than six months after the arrests of the seven girls at Etiwanda Middle School, Ortiz found himself the center of attention when, in another incident of student-on-student violence occurring at nearby Etiwanda High School, Ortiz afterward filed a police report in which he characterized the victim, who was suspended from school, as the perpetrator/aggressor. Shortly thereafter, a student-made video of the matter at hand surfaced and went viral on YouTube, demonstrating the facts were diametrically opposite from what Ortiz had written in his report.
On January 8, 2014, as Etiwanda High School freshman Kobe Nelson was transiting the campus between classes, he was confronted by a classmate who continually challenged him to fight while laying hands on him and shoving him. A video of the incident shows Nelson continuously seeking to disengage from the confrontation, keeping his hands to himself as he is being shoved and pushed repeatedly. In the audio portion of the video, someone can be heard saying “If you don’t fight, you’re a bitch.” Nelson gives that taunt no heed and continues to try to move away from the student confronting him. As Nelson, who is wearing a small backpack, heads into what appears to be a breezeway or the entrance to one of the school buildings and away from the student who is confronting him, his challenger pulls him backwards by latching onto the backpack, and then flinging Nelson to the ground. Nelson regains his feet and can be seen on the video moving back toward the building entrance, only to come face-to-face with his tormentor and be pushed sideways. With the other student yet shoving him from the side, Nelson then heads off into an alternative direction to go around the building and avoid the confrontation so he can get to class.
A report of the violent confrontation made its way to the school administration and Ortiz was called upon to conduct an investigation in which he spoke with both Nelson and the student who had assaulted him. Ortiz passed along his conclusion to Etiwanda High Assistant Principal Gayle Ross that a confrontation between the two students had occurred, and that Nelson had instigated it. Both students were suspended, though neither the high school administration nor that of the Chaffey Unified High School District would confirm the other student’s suspension had taken place. Several days after the video came to light, Nelson’s suspension was rescinded. Later, during an investigation of the matter by the sheriff’s department, the administrative sergeant at the Rancho Cucamonga San Bernardino County Sheriff’s Station learned that before filing his report, Ortiz had not spoken with any of the more than a dozen student witnesses who had seen the assault on Nelson. It was further learned that after Ross had suspended Nelson, Ortiz had words with Nelson in which he threatened to arrest him if he came to the campus while on suspension. In the course of that exchange, Ortiz mocked Nelson, in essence for not standing up his aggressor, since in any event Nelson was going to be suspended given the district’s policy is enforced against anyone involved in a fight, whether either party is the aggressor, the victim or a mutual participant. “Maybe you should eat some food and bulk up and kids won’t throw you around so much,” Ortiz told Nelson.
After Nelson was cleared for being readmitted to Etiwanda High following the rescission of the suspension, his father made clear to authorities he did not want his son back on the campus if Ortiz was to remain in his assignment there. In an interview pursuant to a complaint against Ortiz that Nelson and his farther lodged with the department which both Nelson and his father and the department recorded, Sergeant Casey Giles, the administrative officer at the Rancho Cucamonga Sheriff’s Station conducting the investigation can be heard acknowledging that available evidence not collected by Ortiz clearly indicated that Nelson had been assaulted. When Giles asks Nelson why he is reluctant to return to Etiwanda High if Ortiz is still assigned there, Nelson responds, “Obviously, Deputy Ortiz is not professional enough to be on a campus with school kids.”
Among his department colleagues, Ortiz had a reputation for being both incompetent and intellectually challenged, as well as prone to displays of machismo even within a patently macho environment. “He was assigned to schools and dealing with kids,” said one department veteran. “What does that tell you? No one wants those kind of assignments. That’s babysitting, not police work.”
It is not clear whether Ortiz is still employed by the sheriff’s department, as no one in the organization is willing to discuss him. Transparent California shows that in 2016, Ortiz topped out in terms of remuneration when he earned $83,512.22 in regular pay, $16.441.43 in overtime pay, $2,500 in other pay, together with $67,043.74 in benefits for a total compensation package of $169,497.39.
The following year, 2017, Ortiz was provided with $18,335.85 in regular pay, $3,023.87 in overtime pay, $26,697 in other pay and $66,690.88 in benefits for $114,747.88 in total compensation.
An unidentified staff member in the department’s human resource division this morning said he was not authorized to disclose Ortiz’s status with the department and patched the call through to an individual he said had that authorization. That call, and a subsequent one to the same desk reached a voice mail recording. No return call had been made to the Sentinel at press time.
Repeated efforts by the Sentinel to reach the sheriff’s department’s head of public affairs, Lieutenant Robert Warrick, to discuss with him and obtain a defense of Ortiz and both his and the department’s investigative technique were unsuccessful. Warrick’s secretary’s assurances that he would return those calls went unfulfilled.
In a final gesture of its natural majesty and that of its species, a mortally wounded San Bernardino Mountain black bear last month mauled the hunter who had fatally wounded it.
The hunter, who had a permit and a tag that allowed him to take one of the creatures using a bow and arrow during the archery bear hunt season that opens in late August and closes in early September, believed the 300-pound plus animal had expired when he approached it.
The bear, however, was still alive, and nearly killed the man, who likely would have died beside the ursine he had killed if not for the assistance of two of his hunting colleagues, who quickly summoned for him medical assistance.
Experienced bear hunters who fell their prey with arrows usually observe a several minute wait that can last as much as a half hour before approaching their kill. That may have been the case on August 24, but a conflicting report held that the hunter and his two companions believed he had registered an immediate kill. At any rate, after the hunter, described as quite experienced, believing he had observed a sufficient interval and observing no movement, left the perch from which he had dispatched his projectile, and he presumed, the bear. When he reached it, however, the bear took its grim revenge in what were the last minutes of its existence.
According to Patrick Foy of the California Department of Fish and Wildlife, “When he ran up on the bear, the bear attacked him and it mauled him severely.”
The man sustained severe injuries to his upper torso, face and arms. He lost several pints of blood before he reached a hospital.
“Approaching an animal that is injured or wounded can be dangerous if that animal is in a position where it can forcibly defend itself,” said Foy.
The attack occurred in a southern extension of the San Bernardino Mountains across the Riverside County line in Banning Canyon.
Black bears are not native to the San Bernardino Mountains, which were inhabited by grizzly bears, nearly all of which were hunted to extinction in the 19th Century. The forerunner of the California Department of Fish and Wildlife, the state Fish and Game Service, introduced the Yosemite black bears to Southern California in 1933.
While they are not exactly docile, black bears have little of the ferocity of grizzly bears. Mothers protecting their young will attack humans. When foraging for food, black bears will exhibit impatience with humans who obstruct them. There have been isolated instances of attacks on humans. The bears, armed with great strength, claws and intimidating dentition, are capable of inflicting tremendous damage on virtually any other land inhabitant, and mature bears can function in water.
Nevertheless the Department of Fish and Wildlife has prohibited the use of firearms in bear hunts, imposing on those who wish to bag them a requirement that they invite upon themselves the same specter of mortality they impose upon the bears in pursuing their bloodsport. Some hunters, however, do not want to live by that code, and they have submitted a petition to the Department of Fish and Wildlife asking that they be permitted to carry firearms on bear hunts “for safety.”