Upland Assistant Public Works Director’s Conflict-Of-Interest Puts City In A Bind

(October 24)  The Upland City Council’s consideration of a fifteen year extension of its city’s trash hauling franchise contract with Burrtec Waste Industries is fraught with legal complications stemming from the city’s assistant public works director having received substantial monetary sums from that refuse handling company.
Acquanetta Warren, in addition to holding the assistant public works director position in Upland, is also the mayor of Fontana. A combination of factors relating to Warren has raised the issue of a conflict of interest in the City of Gracious living. Those factors include her political status and Burrtec’s role as a primary donor to her political campaign committees; Burrtec’s holding of the trash hauling franchises in both Fontana and Upland; and  Warren’s recommendation, while serving in the role of the second-ranking member of Upland’s public works division, that the city council approve the contract extension with Burrtec.
Specifically, Warren appears to have brushed up against  three sections of the California Government Code that are outgrowths of the Political Reform Act of 1974, sections 87100, 87103 and 84308, all of which pertain to conflicts of interest, as well as Government Code Section 1090, which prohibits a public official from having a personal financial interest in any matter he or she acts upon as a public official. Within the last several weeks, city officials have sought to downplay the significance of Warren’s comments, made on the record before three Upland City Council members at the September 30 Upland Finance and Economic Development Committee meeting, in which she praised Burrtec for the level of service it has provided in the past and recommended that the city council approve Burrtec’s proposed revision of the contract without seeking new bids. The terms Burrtec proposed would extend the franchise from its current minimum seven year continuation to a minimum 15 year continuation, representing a guaranteed increase in revenue to Burrtec of at least $68 million and ensuring that Burrtec remain as the city’s trash hauler at least until 2028.
Legal authorities and the California Fair Political Practices Commission aver that Warren’s statements seeking to advance the Burrtec proposal constituted a conflict of interest.
Government Code Section 1090 states, “Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.”
According to California Government Code Section 87100, “No public official at any level of state or local government shall make, participate in making or in any way attempt to use his/her official position to influence a governmental decision in which (s)he knows or has reason to know (s)he has a financial interest.”
Gov. Code Section  87103 (e) states “A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or… any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating two hundred fifty dollars ($250) or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made.”
As a successful candidate for the Fontana city council, successful candidate for Fontana mayor and as an unsuccessful candidate for state assemblywoman, Warren has been a recipient of at least $11,578 in campaign contributions from Burrtec or its principals over the years, according to campaign finance reporting documents, known as Form 460s, that are currently available through the Fontana city clerk’s office, the county registrar of voters or the California secretary of state’s office. Burrtec was also a “major sponsor” of the Fontana Mayor’s Ball, which was held on October 5, six days after the September 30 Upland Finance and Economic Development Committee meeting. The Form 460 which will catalog the amount of Burrtec’s donation to Warren via that event is not due until after December 31.
Warren’s potential violation of California Government Code Section 84308 pertains to both her advocacy for Burrtec and her failure to disclose to Upland city officials and the public the conflict she had vis-à-vis Burrtec before acting as a city official with regard to a matter that has a potential financial impact upon Burrtec. According to the Fair Political Practices Commission’s web site, “Section 84308 prohibits solicitation or receipt of campaign contributions from parties, participants, or their agents, in proceedings involving licenses, permits, or other entitlements for use. The law also requires an official’s disqualification in those proceedings if the official has received campaign contributions of more than $250 from a party or participant within the 12 months preceding the decision. Finally, Section 84308 requires disclosure of such campaign contributions.”
According to Upland City Clerk Stephanie Mendenhall, Warren’s current statement of economic interests, known as a California Form 700, which she filed with Mendenhall’s office earlier this year and certified as being true under penalty of perjury, states she has “no reportable interests.”
Warren’s action has created considerable complication and potential peril for the city of Upland. If the city council approves the franchise revision and extension contract as proposed by Burrtec and recommended by Warren, that action could subject the city to costly legal challenge.
According to Ronald D. Wenkart, the general counsel for the Orange County Department of Education who oversees in that role governmental agency contracts with vendors worth hundreds of millions of dollars on an annual basis, “Government Code Section 1092 provides that every contract made in violation of Section 1090 may be avoided by any party except the official with the conflict of interest. Despite the wording ‘may be avoided,’ the case law holds that any contract made in violation of Section 1090 is void, not merely voidable.”
In this way, according to Wenkart, an adjunct professor of law at several colleges and universities, the Upland franchise contract with Burrtec would be subject to legal challenge even if all other city officials other than Warren have no conflict.
Wenkart said any party with standing, such as a city resident or a competing trash hauler, could initiate such a lawsuit. The city would have the option of contesting the suit or acknowledging the contract was tainted by the conflict, terminating it and rebidding it.
Wenkart said the circumstance is fraught with hazard for Warren as well, if an enforcement agency becomes involved.
“A public officer who is found guilty of willfully violating any of the provisions of Sections 1090, et sequitur, is punishable by a fine of not more than $1,000 or imprisonment in state prison. Additionally, such an individual is forever disqualified from holding any office in this state,” he stated.
It appears that Upland city officials have grown aware of the issue Warren’s dual role as mayor in Fontana and assistant public works director in their city has presented them. When the Sentinel first contacted Upland City Attorney Kimberly Hall Barlow with questions relating to the matter on Monday, Barlow said, “At present, I do not have authority to speak to anyone about this. I have to talk to my city manager.” The following day she told the Sentinel, “I will have no comment.“
Ironically, two of Upland’s city council members have recused themselves from participating in the Burrtec franchise contract revision and extension vote. Councilman Gino Filippi, who received a $1,000 contribution from Burrtec owner Cole Burr for his mayoral run last year, is not voting in accordance with the city’s political finance restriction ordinance, which prohibits voting on any matter impacting a donor within one year of receipt of that donation. Councilman Brendan Brandt is not voting because his law firm represented one of Burrtec’s competitors, Athens Services.
Among the remaining council members eligible to vote, attitude toward the Burrtec proposal is mixed.
Councilman Glenn Bozar has indicated he is opposed to the extension of the automatic yearly contract continuation clause to 15 years and he is calling for notice to be given to Burrtec so bidding on the trash hauling franchise can be undertaken at the earliest possible date. Councilwoman Debra Stone is supportive of Burrtec, saying she is persuaded by the reliable service Burrtec has rendered the city over the years and the recommendations made by Warren and other staff members. Mayor Ray Musser appears to be the crucial swing vote on the issue. He has expressed the opinion that Burrtec’s performance under its contract with Upland has been very good, but he said he has hesitancy about making a fifteen-year franchise commitment to the company.
When contacted this week, Warren was unwilling to enter into any substantive discussion with regard to the franchise contract revision proposal and any conflict that may exist as a consequence of her role as assistant public works director and her financial relationship to Burrtec as a politician.
“I’m at work right now and your article is purely political and way off, so I’m not talking to you,” she told the Sentinel. “Thank you.”

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