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Sentinel 11-08-13

(November 8) Nearly 26 years after he stormed into office as San Bernardino city attorney, James Penman was removed from office by close to a three-fifths margin of voters in a special recall election on November 5.
For more than two-and-a-half decades Penman played a significant role in city politics, one that went beyond the traditional place of the city’s legal advisor. And while his self-enlarged demeanor  on occasion boosted him into a position rivaling the power of several of the mayors he served with at City Hall, his political involvement played a role in his being vanquished this week, as the city he guided was buffeted by financial problems that led it to file for bankruptcy last year.
When several of the city’s largest creditors challenged the legitimacy of the city’s bankruptcy filing, Penman’s role as the city’s defender in federal bankruptcy court compounded the impression that he was co-responsible for the city’s fiscal plight.
Formerly a Democrat who once bragged  about heading Students for Kennedy at Cal State San Bernardino, Penman created a handful of lifelong enemies among the Democrats he crossed swords with over the years and he eventually ended his affiliation with the party, declining to state his political preference on his voter registration document. He gravitated toward affiliations with Republicans both at the city and county level. Nevertheless, his  long term incumbency resulted in political support from the normally Democrat-aligned municipal employee unions, which occasionally alienated a portion of the Republican base he was striving to cultivate. And his political ambition at times put him into contests, electoral and otherwise, against members of the GOP.
These accumulated liabilities and his often acerbic personality, combined with the determination and money of the group that sponsored the recall effort, led to his ouster.
In 1987 Penmen defeated incumbent city attorney Ralph Prince, a Democrat, whose 28-year reign in that office was the longest in the city’s history. Seven years later Penman ran for district attorney, utilizing support from the county’s Old Guard Republican power base, which included then-incumbent DA Dennis Kottmeier, who elected not to run in the face of a challenge by one of his own prosecutors, Dennis Stout, a Republican who was then Rancho Cucamonga’s mayor. In that 1994 contest, Stout outgunned Penman, whose campaign was marred by accusations from the Stout camp that as San Bernardino city attorney, Penman had been a little too forward with San Bernardino’s female employees.
Despite his failure to advance to the county’s top prosecutorial spot, Penman consistently was reelected as city attorney in the county seat, where over the years better than a half dozen appointed and elected officials were arrested, charged, and convicted of violations of the public trust and/or political corruption, or were otherwise removed from office. Penman would take credit for many of these. At the same time that he was aligning himself with Republican elected officials in the city, he  associated with the unions or bargaining units representing the city’s public safety employees, i.e., police officers and firefighters. Over time, these associations grew to include one with the union representing the city’s general employees as well. His support of generous salary and benefit packages for municipal employees ran counter to the fiscal conservatism  advocated by the Republican Party, a circumstance that initially did not harm him politically as hefty donations from those unions assisted him in his reelection efforts. But as city finances grew ever more tenuous, his support of the groups increasingly viewed as being at the root of the city’s slide toward bankruptcy took their toll.
Moreover, in the early 2000s, Penman initiated challenges of then-mayor Judith Valles, a Democrat, leading to more contretemps. In 2005, Penman sought the mayoralty himself, running against former Superior Court Judge Patrick Morris, a Democrat. That bid failed, as did a rematch against Morris in 2009. The sniping between Penman and Morris continued even after the election season was over, with Penman blaming Morris for the city’s deteriorating financial posture and Morris citing Penman’s support of exorbitant city employee employment contracts.
While Penman touted himself as the conscience of the city, its moral compass and an astute lawyer who was guiding San Bernardino through a dangerous whirlpool of daunting legal challenges, others saw him as a blowhard who was unable to control his temper. In recent years he had run-ins with the city’s public works director and the director of community development in November 2011, then-police chief Keith Kilmer in October 2010; and then-city manager Charles McNeeley in 2011 and 2012.
In April of this year, a hastily formed action committee, San Bernardino Residents For Responsible Government, declared that they were gunning for the political heads of Morris, Penman and council members Wendy McCammack, Fred Shorrett, Rikki Van Johnson, John Valdivia, Virginia Marquez, Robert Jenkins, and Chas Kelley. The group said it was motivated in large part by the city’s filing for bankruptcy.
Eventually, the group called an end to its effort against Morris, who did not seek reelection this year and will leave office next March. It also discontinued the campaigns against Jenkins, Marquez, Shorrett and Van Johnson as well. It did proceed with the call to let voters decide on removing Kelley, Valdivia, McCammack and Penman, succeeding only in getting Valdivia, McCammack and Penman on the ballot for recall.
San Bernardino Residents For Responsible Government succeeded in getting 11,855 valid signatures affixed to the petition to remove Penman, 267 more than the 15 percent of the city’s registered voters  needed to place a citywide officeholder on the ballot as a recall candidate.
Two candidates, Gary Saenz and Tim Prince, emerged as alternate candidates to Penman. Prince is the son of Ralph Prince, whom Penman succeeded after his initial 1987 victory. And while Tim Prince failed to outpoll Saenz on Tuesday, meaning that Saenz is now San Bernardino’s city attorney, Tim Prince did run a spirited campaign calling for Penman’s removal from office. Prince will have the satisfaction of knowing that Penman’s defeat this week means that his father will remain, for the time being, the longest serving San Bernardino city attorney on record.
In the closing weeks before the election, on October 17, two of the members of the city council, Kelley and Jenkins, were charged with crimes, in Kelley’s case by the San Bernardino County District Attorney’s office, and in Jenkins’ case, by the Riverside County District Attorney’s Office.  Kelley resigned from office and pleaded guilty to utilizing political contributions for personal expenses. Jenkins, charged with a sordid assortment of crimes relating to fraud, forgery and identity theft in relationship to sexual harassment of one of his former homosexual lovers, has maintained his innocence. Penman, who was politically aligned with both Kelley and Jenkins, rushed to Jenkins’ defense, a move which may have hurt him on Tuesday. Penman also suggested without directly stating that he had been instrumental in launching the investigation that ended with Kelley’s guilty plea and resignation. The perceived implausibility of Penman’s claim regarding the prosecution of Kelley may also have hurt him at the polls on Tuesday.
Another factor in Penman’s removal was the $140,000 of his own money that Scott Beard, the leader of San Bernardino Residents For Responsible Government, threw behind the recall effort.
Penman, who prior to the recall vote said he was proud of his tenure in office and that he had the comfort of knowing that all along he had “fought the good fight,” was unavailable for comment after the election results were reported by the county registrar of voters office. Only 11,048 voters citywide participated in the recall vote against Penman, fewer than had signed the petition to force the recall question against him. Of those,     6,601 or 59.75 percent voted yes, while     4,447 or 40.25 percent voted no.

(November 6) The city of Chino Hills has determined that there are fewer homeowners encroaching on city-owned open space than was previously believed to be the case.
Nearly three years ago, Chino Hills city officials began a somewhat haphazard notification process related to what they believed were as many as 300 instances of  property owners in the city who had encroached on public open space. Those encroachments include trees, shrubs and other forms of landscaping in city-claimed open space in the most benign of the cases and consist of fences, walls, pavement, swimming pools, hot tubs and  structures in more serious situations.  Some of those improvements were undertaken by the present owners of the properties. In others, they were completed by previous owners.
In one of those cases, Michael and Kimberly Denton sued the city in 2011 after the city’s code enforcement division informed them in 2010 that the furthest extension of their backyard was encroaching on city-owned open space and that they had to remove their pool and spa along with landscaping that was already extant when they purchased their home on Hunter’s Gate Circle in 1999 from Gloria Vitagliano.
The Dentons offered the city $10,000 for the property, but the city rejected that offer, instead saying it would provide them with a 15-year easement for the continued use of the property.  The Dentons then retained the firm of Gresham, Savage, Nolan and Tilden to sue the city.
The Dentons claimed the city allowed the Vitagliano/Denton encroachment, which was conspicuous and open, to stand, and did nothing to interfere with Ms. Vitagliano’s or their occupation of the land for more than 15 years. Just prior to the case going to trial in September the city of Chino Hills consented to a “quitclaim” of the 1,574 square feet of land for the agreed-upon price of $11,000 and the Dentons’ willingness to pay escrow and document fees, together with their own legal costs in pursuing the lawsuit. The Dentons’ title insurance company, First American Title of Orange County, has covered the $11,000 purchase cost, escrow and document fees as well as Gresham, Savage, Nolan and Tilden’s legal fees. The city avoided the cost and risk of a trial. Nevertheless, it had accrued legal bills of $263,000 in response to the Dentons’ suit.
Earlier this year, as the Dentons’ suit appeared to be headed to trial, city officials considered defusing the encroachment issue altogether by offering  to sell the strips of property in question to those residents. In July, the city said it had undertaken a review indicating 238 residential properties within the city were encroaching upon city-owned open space. It sent out notices to those landowners, inviting them to attend workshops relating to the issue and dialogue with the city with regard to solutions. The city initially indicated it would impose fines or penalties on the encroachers and subsequently suggested that most of the encroachment issues could be readily resolved by the landowners involved paying somewhere between $6 to $17 per square foot to obtain title to the encroached upon open space.
Last week city officials said further research has led to the conclusion that there are not 238 encroached-upon strips of city-owned open space but 187. As a consequence of contact with residents both at city-sponsored workshops and in more direct exchanges, the city has directed staff to facilitate the purchases in those cases deemed appropriate and to go so far as to provide residents who cannot afford to secure financing at the time of sale so-called “due-on-transfer” clauses, and to rezone and remove the restrictions on any property transferred to the residents.
The city council also directed that staff not play hardball with regard to the selling price on the strips of land to be sold to the encroachers, such that the selling price should reflect the cost of the property at the time the residents purchased their property rather than the current higher fair market value. The council also said the city should facilitate the sale of not just “open space” that was encroached upon but be cooperative in allowing residents to purchase any park land inadvertently encroached upon by residential homeowners.  The council has also been persuaded to drop the “penalty” or “fining” provision of its earlier approach.
The council was insistent, however, that those residents participating in the purchase solution bear all title costs pertaining to the sales as well as any environmental review costs required under the California Environmental Quality Act.  Purchasers will need to make a 120-day notice of their intent to purchase, according to the guidelines suggested by the council.
In those cases where the encroachments entail health or safety hazards, the city council is opposed to allowing purchase of the land to go forward and will instead require that any improvements, landscaping or structures on the encroached-upon property be removed at the expense of the property owner in question.
Rossana Mitchell, a former city councilwoman who is also an attorney, said it is too early for the city to be discussing purchasing arrangements or pricing on the properties.  She noted that in recent weeks the city has acknowledged that of 238 cases of encroachment it earlier identified, at least 51 of those have been determined not to have entailed unauthorized property occupations after the lot lines were examined.
“My concern is the city hasn’t done a formal land survey on those properties,” Mitchell said. “It is premature to declare them as encroaching and make demands. Aerial photographs are not sufficient. The city needs to do its homework and a lot more information needs to be produced. They need to properly survey the property to determine if they are in fact encroaching on city property before making a valid claim to end the encroachments.”
Mitchell said undertaking such surveys would simply be “the first phase. The first question should be ‘Are they encroaching.’ The next thing would be to determine it it was done in good faith or bad faith. If it is a matter where a property owner clearly knew where the property line was and encroached, that issue has to be addressed and the city needs to enforce whatever codes it has to undo that violation. But at this time it seems that most of these cases were done in good faith where the owners had no idea that they were encroaching for the past twenty or thirty years. I think we have to look at each case individually.”
She reiterated that she believed the city was getting ahead of itself by calling for residents to purchase the property in question, in particular given the length of time that has passed while those property strips have been occupied by and improved by the city’s homeowners and the lack of hard data and documentation now at the city’s disposal.
“The city said there were 238 of these,” she said. “They are now down to 187, once they looked into it. I think it would have been wise for them to have looked into it and made sure they had valid encroachment claims before they sent out those notices and made claims that  upset people.”
In the lion’s share of the cases, Mitchell said, even if some encroachment occurred, “I think the city should grandfather their property [i.e., quitclaim title to the residential property owners]. If any buy-outs need to be made, it should be minimal. I don’t think the residents should have to pay for any of the processing or California Environmental Quality Act-required studies. The city either did not know about this or has neglected it for over twenty years. If the city did not know and the landowners did not know, they should not be subject to penalties after all this time.”

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. –Tenth Amendment to the U.S. Constitution

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. –Eleventh Amendment to the U.S. Constitution
(November 5) SAN BERNARDINO—In the battle that is raging between the city of San Bernardino and the state’s public employees’ pension system, the pension system is now striving to align itself with the state of California and citing both the Tenth and Eleventh Amendments to the Constitution in seeking to limit the city’s claim of protection from its creditors under the bankruptcy code.
The city of San Bernardino, which has been in a precarious financial position for years because of overspending, a stagnating economy, dwindling revenues and escalating costs including overly generous salaries paid and benefits provided to its municipal employees, last year filed for Chapter 9 bankruptcy protection.
While other large California Cities that have filed for bankruptcy such as Vallejo and Stockton have chosen to continue to make good on their commitments to their employees’ pension programs, San Bernardino has engaged in the exploratory strategy of testing whether it can withhold scheduled payments from CalPERS, the California Public Employees Retirement System, just as it would any of its other creditors under the rubric of its bankruptcy filing. Indeed, for thirteen months, from July of 2012 to July of 2013, San Bernardino failed to make a single payment to CalPERS, withholding more than $14 million in that time frame.
CalPERS is actually San Bernardino’s single largest creditor. In the pendency plan it put together as part of its bankruptcy filing, the city did not differentiate between CalPERS and any of the scores of entities it owes money to. The city maintains that if it is to get back on its feet financially, it must defer payment to a whole host of those it is in arrears to so that it can map its way out of the financial abyss it had sunk into. By restructuring the totality of its debt, city officials maintain, the city can streamline its function, eliminate its structural deficit, balance its budget and eventually, over the long haul, repay its creditors.
A handful of those creditors, however, have challenged the bankruptcy filing. Among those is CalPERS. In addition, CalPERS has consistently maintained that even if the bankruptcy were to be sanctioned by the court, which it has, that under state law, it should be excluded from the category of creditors that a municipality can withhold payments from.
Despite the opposition to its bankruptcy filing, U.S. District Judge Meredith Jury has ruled that the city’s debt restructuring shall proceed and she has delivered decisions favorable to the city in terms of the withholding of payments to its creditors.  With regard to CalPERS, Jury held that requiring the city to expend its scant revenue to cover retirement costs would undercut San Bernardino’s effort to get back on its feet financially.
Another of Jury’s rulings extended to state controller John Chiang’s effort to withhold from San Bernardino $15 million in property tax revenue after the state controller’s office and the state Department of Finance determined that San Bernardino had inappropriately transferred $108.4 million of its former redevelopment agency’s real properties, cash, and invested funds  to the city’s economic development corporation and further determined the city is hanging on to another $420.5 million of assets that should have been transferred to a so-called successor agency after the state’s shuttering of redevelopment agencies statewide in 2011.
When the state withheld the $15 million in tax revenue from the city, the city sued the state in March to prevent the state from withholding the tax revenue. Judge Jury ruled that the state could not withhold the revenue.
Just as CalPERS objected to Jury’s ruling in favor of the city relating to the retention of money owed to the state public employee pension system, the state is dissenting to Jury’s ruling forcing the state to turn over to the city the $15 million in property tax it is due while the city is withholding from the state $528.9 million it claims it is due from the city.
In an amicus curiae brief filed on November 1 in Jury’s court,  lawyers for the CalPERS cited the 10th and 11th Amendments to the U.S. Constitution in asserting the state of California has immunity from the city’s bankruptcy filing in much the same way CalPERS is not subject to the imposition of a bankruptcy court mandate to accept nonpayment from the city. The principle in both instances is that both the state and CalPERS have a priority claim to San Bernardino’s available money above all other of the city’s creditors under California law and those amendments prevent using the federal court from intervening to disrupt California law or its judicial processes.
The Tenth Amendment states that the federal government cannot go beyond the  powers granted in the Constitution. Under it, states and local governments have on occasion asserted exemption from various federal regulations, especially in the areas of labor and environmental controls, and have had some success preventing federal agencies and courts from overriding the authority and power reserved for and asserted by states.
The Eleventh Amendment prevents federal courts from overriding the determinations of lawsuits made by state courts.
Because municipalities are political divisions that are chartered by and fall under the authority of the state, they have a different relationship to agencies or extensions of the state such as the controller’s office, the state Franchise Tax Board, the Department of Finance or creatures of the state such as CalPERS than do other entities or creditors that are subject to federal bankruptcy law, CalPERS’ lawyers maintain.
“By characterizing [the city of San Bernardino’s] proceeding as merely one to prevent an action to collect on a debt, the bankruptcy court gave short shrift to the serious federalism concerns that this proceeding raises,” the brief states. “The Tenth Amendment, and our Federalism, does not take a back seat to Congress’s Article I powers.”
The city has argued that “the exception to sovereign immunity … plainly applies to this case and negates any sovereign immunity on the part of [controller’s office and the California Department of Finance].”

(November 6) In a significant reversal, Kevin Coduto was reinstated as Chaffey College Associated Student Body President less than a week after he was removed from that elected position in what is now acknowledged was an improper manipulation of the Associated Students of Chaffey College’s governing board’s authority by the college administration.
At the prompting of  Associated Students of Chaffey College Campus Council Adviser John Machado, who is answerable to Chaffey College President/Superintendant Henry Shannon, the Associated Students of Chaffey College’s governing body, known as the campus council, on October 21 adjourned into a closed session from which Coduto was excluded and then relieved him of his position and title as student body president on a two-thirds vote. Caduto was also removed as a student trustee during the closed session  vote. Student body vice president Carlotta Bohon was then appointed to succeed Caduto.
Upon the body’s return to open session, Bohon reported the action against Coduto had been taken based upon what she said was Coduto’s violation of Article III of the Associated Students of Chaffey College by-laws. Article III pertains to the need for student representatives to maintain “decorum” and avoid statements that would confuse their own personal views with that of the college or the student body as a whole.
Coduto had gotten on the wrong side of Shannon by endorsing Zafar S. Inam in the run-up to the November 5 Chaffey College Board of Trustees election in which Inam, was challenging incumbents Kathleen Brugger and Katie Roberts.
At the October 7 meeting of the Associated Students of Chaffey College, Shannon in his capacity as college president/superintendent made a rare showing before that panel, and was critical of Coduto’s endorsement of Inam, which he said represented an ethical misstep on the ASB president’s part. Shannon said having a student body president who was campaigning against two of his five bosses was making things difficult for him as the head of the institution.
“I got calls from my governing board members,” Shannon told the campus council. “It’s making it very awkward for me.”
The college president said the role of student body president put restrictions on Coduto’s free speech rights. “Kevin cannot just be Kevin if he’s elected by the student government society here at Chaffey College,” Shannon said.
Coduto, however, did not back down, insisting that he was entitled to make an endorsement as he saw fit, aslong as he made clear hewas speaking for himself. He was critical of what he said was Shannon’s effort to curb his free speech rights. He charged the president/superintendent with hypocrisy, pointing out that Shannon was attacking him for having engaged in political activity when Shannon has himself made political contributions to the college board members, at whose pleasure he serves as president/superintendent.
The move to depose Coduto as associated student body president, which was choreographed by Machado and director of student activities Susan Stewart, appeared to have been done at the behest of Shannon, who in his only public statement on the matter sought to deflect responsibility from himself by suggesting Machado had taken the action on his own initiative. Machado and Stewart are directly answerable to Shannon.
In the immediate aftermath of his removal, Coduto unreservedly stated he believed the action had been taken in violation of the Ralph M. Brown Act, the state of California’s open public meeting law, which requires advance notice of meetings, including an agenda of items to be discussed, considered or voted upon. Coduto questioned the legality of his removal on other grounds as well, noting he had been elected student body president by his peers at the college, had not been subject to a recall vote and was not given an opportunity to answer the charge that he had violated Article III, which he insisted he had not done.
Upon consideration of what had occurred, the college’s legal advisors apparently came to the conclusion that the action orchestrated against Coduto was illegal.
On October 25, Shannon’s second-in command, associate superintendent Sherrie Guerrero, released a memorandum stating the Associated Students of Chaffey College’s governing body was subject to the provisions of the Brown Act and all the closed sessions held by the student council were illegal and inoperative. According to Guerrero, the action removing Coduto and replacing him with Bohon was null and void.
“The district has been informed that the campus council attempted to remove Mr. Coduto from his position as president/student trustee in a closed session meeting on October 21, 2013,” the college district announced. “The district cannot recognize the executive board or the campus council’s actions with regard to Mr. Coduto at this time.”
The Associated Students of Chaffey College governing board announced on October 28 that Coduto has been reinstated and has so far not scheduled a public session at which it will attempt to undertake Coduto’s removal in compliance with proper procedural guidelines, including the Brown Act.
While Coduto told the Sentinel he was “happy to be reinstated as the student body president and student trustee,” he said he was “disappointed it had to be done by the Chaffey College legal department. It’s so clear that there was direct coercion from the board to Dr. Shannon, to the student government advisor, and then to the student government members to remove me from office, yet nobody is being held accountable.  The Associated Students of Chaffey College campus council advisor serves as the official parliamentarian of the group, and he directed the campus council to violate the Brown Act, yet there has not even been an admission of wrongdoing.”
Coduto said, “I’m still considering many actions to take. I would prefer to pursue a mutual agreement through an ad-hoc committee with the administration, faculty, and students on how we can work together to stop the coercion of students and violations of students’ freedom of speech from the administration. If the administration is unwilling to work with me, I am willing to take every measure possible in order to solve this problem.”

(November 8) In a relatively rare move, the county is expending $51,000 to raze seven dilapidated houses in unincorporated areas deemed to represent safety hazards.
According to Tom Hudson, the director of the county’s land use services division “the structures and improvements on the subject parcels are substandard, are a threat to public health and safety, and the properties constitute a public nuisance.”
The properties in question are located at 15348 Athol Street in the Fontana area, 22825 Juniper Lane in the Valley of Enchantment; 23542 Crest Forest Drive in Crestline; at 31410 Ocean View Drive, 30827 Live Oak Drive and 30738 Live Oak Drive in Running Springs; and at 35155 Vista Road in Cedarpines Park.
Hudson said his department “has determined by inspection that the privately-owned structures located on the properties are substandard buildings as defined by San Bernardino County Code section 63.0603, and has ordered the structures rehabilitated or demolished.” He said he has also personally “determined by inspection that the properties maintain substandard conditions as defined by San Bernardino County Code section 63.0604,” and that he has ordered the substandard conditions be abated. Pursuant to county code, the owner of record and other interested parties have been notified of the violations and ordered to abate via a notice of defects and a notice of action filed with the county recorder. All property owners of record, current and past, and other interested parties as shown on the title report (banks, mortgage holders, etc.) have been sent notices of defects by  regular and certified mail, and each property has a notice of action which is filed with the recorder, along with the notice of defects, when the case is opened. Both notices, along with appeals information, are also physically posted on each property. Additionally, once board action is taken, at least one additional notice will be issued to the address of record, providing the required legal notice of the pending action. Despite the numerous notifications, the owners of record have failed to rehabilitate or demolish the structures or abate the violations. The structures are unoccupied and are unfit to be occupied, and require demolition by a county-appointed private contractor.”
Hudson said the county will “terminate all proceedings in the event that a property owner rehabilitates or demolishes the structure(s) and improvements prior to commencement of demolition proceedings by a county-appointed contractor.”
A request for proposals soliciting bids from qualified contractors was issued and processed by the county purchasing department. Individual bids were reviewed and the lowest complying bid for each property was accepted, with the work being awarded to three different entities, C. R. Gann; Porter’s Firewood; and Environmental Klean-Up.
C. R. Gann  will raze the house on Athol Street for $6,800. Environmental Klean-up will demolish the  Juniper Lane house for $5,433 and the Crest Forest Drive structure for $7,712. Porter’s Firewood will demolish the Ocean View Drive Property for $9,700 and the 30827 Live Oak Drive property for $9,400. Environmental Klean-up will take down the 30738 Live Oak Drive property for $6,720 and the Vista Road property for $5,320.
While the county will cover the $51,085 up front cost of the demolitions by utilizing $10,753 in Community Development Block Grants and $40,332 in discretionary funding, all funds shall be recovered by billing the property owners and/or levying special assessments against the properties for any unpaid balance.

(November 6) The county of San Bernardino has renewed its contract with Washington, D.C.-based Potomac Partners for lobbying in the nation’s capitol.
San Bernardino County first contracted with Potomac Partners in 2009 for federal legislative advocacy services. At that time, the contract called for the payment of $12,000 per month, or $144,000 per year. In January 2012, when the contract for lobbying with the company was extended, the contract cost was reduced to $11,000 per month, or $132,000 per year. The $11,000 per month terms were again extended in January 2013 and again in July 2013.
The contract approved by the board of supervisors this week calls for a 24-month contract extension worth $288,000, which reestablishes the firm’s remuneration at $12,000 per month. The contract calls for providing  federal legislative advocacy services on behalf of the county for a two-year period ending October 31, 2015, with two one-year options to extend.
According to Josh Candelaria, the county’s director of governmental and legislative affairs, “The county of San Bernardino utilizes advocacy services both at the federal and state level to advance the county’s legislative agenda. On July 22, 2013, a request for proposal (RFP) was released for federal legislative advocacy services. The RFP was open for approximately five weeks, advertised through the county’s website and distributed to approximately 45 federal legislative advocacy and public relations firms. A pre-solicitation letter was also circulated a month prior to the RFP opening to ensure the RFP was available to as many firms as practical. The competitive RFP process garnered 11 responses from various advocacy firms, including Carmen Group, Inc., Carpi & Clay, Inc., David Turch and Associates, Holland & Knight, LLP, Innovative Federal Strategies, LLC, McDonald Hopkins Government Strategies LLC, Patton Boggs, LLP, Polsinelli PC, Potomac Partners DC, LLC, Van Scoyoc Associates, Inc. and Venable, LLP. An interagency technical evaluation committee consisting of senior executives from the governmental and legislative affairs office, public works, county administrative office, health and human services, community services, San Bernardino Association of Governments and South Coast Air Quality Management District evaluated the proposals based on the criteria listed in the RFP. The technical evaluation committee recommended that Carpi Clay, Inc., Holland and Knight, LLP, Potomac Partners DC, LLC, and Van Scoyoc Associates, Inc. advance in the process and be interviewed by an interagency interview committee. The interagency interview committee, consisting of senior executives from the governmental and legislative affairs office, economic development agency, Southern California Association of Governments and Riverside County, interviewed the finalists. Potomac Partners DC received the highest evaluation score, has satisfactory references, and significant experience. The legislative advocates will coordinate all legislative activities through the governmental and legislative affairs office and will work with the board of supervisors, department heads and departmental staff to create a proactive legislative advocacy agenda.”
There was no information available relating to what the bids by Carpi Clay, Holland & Knight, David Turch and Associates, Carmen Group, Federal Strategies, McDonald Hopkins Government Strategies,  Patton Boggs, Polsinelli, Venable and Van Scoyoc Associates were.
The contract was reviewed by chief assistant county counsel Michelle Blakemore; Steve Atkeson, a financial analyst in the county administrative office; and Leo Gomez, a supervising buyer in the county’s purchasing department.

(November 8) The county has initiated foreclosure proceedings against a Hesperia-based investment and development company for 23 acres in the Baldy Mesa area.
Real Estate Diversified Funds I, LLC,  located at 15461 Ash Street in Hesperia, in July 2005 obtained tract map approval for the creation of nine residential lots for lot sales only on 23 acres located north of the California Aqueduct between Braceo Street and Joshua Road in the Baldy Mesa area.
The tract conditions were revised and approved by the county’s land use services division  on August 15, 2007, to change from lot sales to developer build-out. On November 20, 2007, the board of supervisors accepted the road and drainage as well as water performance agreements and securities, in the amounts of $152,000 (bond) and $84,000 (bond), respectively, to guarantee the required construction of the road and drainage and water improvements for Tract 17231.
For the final map for Tract 17231 recorded on November 21, 2007 Real Estate Diversified Funds originally agreed to complete the required road, drainage and water improvements for Tract 17231 by November 20, 2009.
According to Gerry Newcombe, the director of the county public works division, “The county has sent several default notices to the Real Estate Diversified with requests to bring the agreement to current status. However, the principal has not responded with the required documentation and securities to maintain the agreement. A letter dated July 26, 2013, from the principal, indicates that the principal wishes an additional six month extension to implement a plan to comply with the county’s requirements.
“The county’s ability to take legal action on the road and drainage and water improvement agreements expires on November 20, 2013, pursuant to California Code of Civil Procedure Section 337,”  Newcombe continued. “As of this date, none of the required road and drainage and water improvements have been started, according to the approved plan. The existing property has not been disturbed and is currently owned by Real Estate Diversified Funds I, LLC.”
In accordance with Newcombe’s recommendation, the board of supervisors initiated foreclosure on the road and drainage as well as the water improvement agreements and performance securities and authorized county counsel to file an action against Real Estate Diversified and the its surety company, SureTec Insurance Company, to collect sufficient monies to pay for any damages incurred by the county as a result of Real Estate Diversified’s breach of the road and drainage and water improvement agreements. While the board’s action initiated reversion to acreage proceedings for Tract 17231 pursuant to the California Subdivision Map Act (Government Code sections 66499.11 et seq.) and the San Bernardino County Code (County Code sections 87.04.070 et seq.), the initiation of those proceedings does not in and of itself accomplish the proposed reversion, that is, restore the property to its previous configuration before Tract 17231 was recorded. The county surveyor will now be tasked to obtain all information necessary to accomplish the proposed reversion, including evidence of title to the real property within Tract 17231 and evidence sufficient to enable the board to make all of the determinations and findings required by Government Code section 66499.16. The county surveyor is also being called upon to prepare a final map which delineates the reversion to acreage, including the vacation of dedications which had been required under Tract 17231. Additionally, the county surveyor and the director of the land use services department have been told to prepare a report delineating an accounting of all costs incurred by the county in the processing of the reversion to acreage which shall be recovered from the securities identified in conjunction with the property and a report delineating the return of fees and deposits to the current owner of the property and the release of securities minus the fees to be recovered by the county for processing the reversion to acreage.
According to County Code section 87.04.070(b), a hearing on the proposed reversion to acreage must first be scheduled before the planning commission. The planning commission renders its decision on the reversion to acreage map in the form of a written recommendation to the board of supervisors. Upon receipt of the recommendation of the planning commission, the board holds a public hearing. The board may approve the reversion to acreage map only if it finds that all of the findings required by Government Code section 66499.16 are true. If the board ultimately approves the reversion to acreage, the map is then delivered to the county surveyor and takes effect after it is recorded.

(November 8) Todd D’Braunstein, a medical professional who has declared his candidacy for the Upland City Council in 2014, said he advocates the city going out to bid at the earliest possible date on its trash franchise contract.
Burrtec Waste Industries, which has held  Upland’s trash hauling franchise since 2000, is pressuring the city to extend its contract, which contains a “rollover” or “evergreen” clause which extends the contract for seven more years every year unless the city gives notice that it wishes to go out to bid. At present the city is committed to staying with Burrtec at least until 2020. Burrtec wants to add street sweeping, household hazardous waste and medical waste handling to its duties, up the rate it charges Upland’s customers by 7.2 percent for the remainder of 2013-14; another 2.1 percent in July 2014; 2.1 percent in July 2015; 2.3 percent in July 2016; 2.4 percent in 2017, tie increases in its rates beyond that to the Consumer Price Index and extend the current seven year evergreen clause to 15 years.
Approval of the Burrtec proposal would lock the city into having Burrtec as its trash hauler at least until 2028. At its October 28 meeting, the city council failed to reach a consensus on the Burrtec proposal, leaving the issue unresolved.
D’Braunstein told the council it should not approve Burrtec’s franchise contract extension proposal and instead go out to bid on the contract in 2020.
“While we can’t see the future and we don’t know what the market will bring in 7 years,” D’Braunstein said, “I feel there should be few relationships that we lock ourselves into for excessive amounts of time without regular re-evaluation and opportunity for change or adjustment. This is even more true in the world where businesses are competing for a share of the market or customer base.  Competitive bidding supports healthy competition, increases opportunities for excellent customer service along with expansion and growth.  Frankly, I have received good service from Burtec and I know that this contract involves more than just picking up the trash each week, with things like household hazardous waste and street sweeping.”
D’Braunstein continued, “Going out to bid seems to be the responsible course of action when dealing with public funds, especially in this case.   I agree that with some relationships we have they are for a lifetime, but I don’t remember the contract stating for better or worse, until death do we part and it seems that with the evergreen clause remaining in place this relationship with Burtec would outlast some marriages I know of.”
The city should not surrender what leverage it has when negotiating with its vendors, such as Burrtec, D’Braunstein said.
“I could be wrong but I also don’t remember Burtec reducing fees when the budget was devouring our reserves.  I do remember our city employees giving back what they could. There is a  high value for each business that contracts with our city and the city should be using this to our advantage as the businesses do, “ he said.
D’Braunstein said the city should not be put in the position of financing a vendor’s equipment acquisition. That is the company’s responsibility, he said.
“The city of Upland is not the bank that Burtec or any other vendor should be going to when capital is needed to update needed equipment,” he said.
D’Braunstein also questioned Burrtec’s representation, backed up by staff members, that the company was providing free services to the city and its residents. At some point, D’Braunstein said, the ratepayers would be paying for whatever Burrtec does.
“Enhanced service? Free services?  Really?” D’Braunstein said. “Don’t these reek of tactics to entice the consumer into a new higher rate by offering something brighter and shinier to get them to lock in an additional 15 years to this relationship?”
One reason to avoid a long term commitment is the changing environment in which the city and the company will have to operate during upcoming years, D’Bruanstein said.
“I often hear news reports of trash washing from our storm drains downstream into the ocean and its impact on the environment.  Again, while I can’t see the future, I have a feeling that within the next 7 years legislation will change that will have an impact on this contract.”
D’Braunstein said the city should, “Thank Burtec for their information, hard work and proposal; direct staff to take the necessary action to cause the removal of the ‘evergreen’ clause from the solid waste contract between the vendor and our city; and direct staff to investigate and prepare a responsible plan for retiring the budget shortfall in this area.”

(November 8) Appointments have been made to the subcommittee recently created by the Upland City Council to provide it with guidance on budget cutting priorities to be utilized by city manager Steven Dunn in formulating the City of Gracious Living’s 2014-15 budget.
Dunn said he needs to either generate $3.5 million more per year in revenue or cut the same amount from each of  its projected annual expenditures over the next five years.
Dunn indicated the only realistic revenue boost on the horizon was a citywide tax, which the council did not appear to be enthusiastic about. When Dunn asked for direction with regard to several budget cutting proposals, council members Brendan Brandt and Glenn Bozar said they were reluctant to make recommendations without more information. The council then voted to create a subcommittee to look into cost reduction options and make recommendations
This week, the membership of the subcommittee was finalized. Each council member was given two appointments. Mayor Ray Musser’s choices were Jason Gouty and Tom Mitchell. Brandt appointed Anthony Goshen  and Stephen Larson. Councilman Gino Filippi designated Eric Hanson and Randall Lewis. Councilwoman Debby Stone appointed Richard Anderson and Martin Thouvenell. Bozar selected Steven Spears and Bob Nelson.