Public Employee Union Contract Negotiation Issue Widens Warren Conflict

(November 15)  Acquanetta Warren this week found herself immersed in another conflict-of-interest controversy rising out of her dual roles as an elected municipal official and status as a municipal employee.
Previously the conflict questions that beset Warren pertained to her role as assistant public works director with the city of Upland brought on by her receipt of money as a political candidate based in Fontana. In the most recent case, the conflict impinges upon her role as Fontana mayor, which is complicated by her status as a member of a public employee union, an entity that has been and continues to be impacted by her votes on the city council, including ones that have been secretly cast in closed-door meetings beyond the scrutiny of the public.
Warren found herself in the eye of a political storm as a result of her recommendation, provided at the September 30 meeting of the Upland  Finance and Economic Development Committee, that the city council approve a franchise contract extension for Burrtec Waste Industries, Upland’s trash hauler since 2000. That extension would have provided for Burrtec remaining as the city’s refuse handler at least until 2028, an arrangement that would have precluded an open bid competition for the franchise for 28 years, while involving a contract with a total value exceeding $150 million. Over the last decade, as a successful candidate for the Fontana City Council and Fontana mayor as well as in an unsuccessful run for the State Assembly, Warren received $11,578 from Burrtec.
Questions arose as to whether her receiving that money from Burrtec and then advocating on behalf of the company as a hired/appointed official in Upland entailed a violation of 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.
At the September 30 committee meeting, Warren participated in her capacity as assistant public works director. Her comments lauding Burrtec’s performance under the current contract augmented recommendations by Upland Public Works Director Rosemary Horning and Upland City Manager Stephen Dunn, as well as by an outside firm, R3 Consultants, that the city extend the franchise contract.
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.”
California Government Code Section 84308 pertains to limitations on an official’s ability to advocate or vote on issues impacting on a political donor as well as the need for a public official to disclose donations he or she has received from entities with dealings before the public agency  that official is acting on behalf of. 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.”
As the Upland City Council’s October 28 vote on the Burrtec contract extension approached, the controversy with regard to Warren’s conflict in Upland hit a crescendo. Prior to the vote, city attorney Kimberly Hall Barlow offered an interpretation of Government Code sections 1090, 87100, 87103 (e) and 84308 that a legal conflict did not apply to Warren’s circumstance vis-à-vis Burrtec since in Upland she was acting as a “hired” official rather than an “appointed” one.
Nevertheless, the contretemps took its toll. On October 28, Mayor Ray Musser, speaking from the council dais in his remarks before the council voted, responded to Barlow’s pronouncement that no “legal” conflict existed with regard to Warren’s participation in the decision-making process, stating that “You can say it’s legally okay, but it is not okay ethically.” He voted against the contract extension, which failed on the resultant 2-2 vote.
This week, at the November 11 council meeting, Deidre Rodriguez, the interim general manager of the San Bernardino Public Employees Association, which represents 15,000 county and municipal workers in San Bernardino County, including those in Upland and Fontana, spoke to the council during the public comment portion of the meeting, addressing Musser in particular in an effort to defend Warren.
She lambasted Musser for his having suggested Warren had any sort of conflict and tore into the mayor for having questioned the ethics of Warren’s participation in the Burrtec discussions, suggesting that   Musser’s raising of the questions relating to Warren’s assumptive conflict during the discussion of the Burrtec contract constituted a violation of the Brown Act, California’s open meeting law.  She said Musser was “not speaking to an item on the agenda” when he called Warren’s conduct into question.
Rodriguez insisted the assistant public works director “was not involved in contract negotiations” with regard to Burrtec’s franchise or its extension.
“It is not against the law to serve the community as an employee and as a public official,” Rodriguez said. Warren, she said, “is stepping up and serving her community and her city. She is well respected. Like most of midmanagers, she is doing two to three jobs. Is this the treatment she deserves? The San Bernardino Public Employees Association stands behind Ms. Warren.”
Ironically, Rodriquez’s show of support for Warren in the relatively limited venue of Upland immediately resonated well beyond the Upland City Council’s meeting chambers. Rodriquez’s remarks, which like the rest of the meeting were broadcast on the local public access television station, vectored attention to the consideration that Warren’s status as a public employee in Upland represented by the San Bernardino Public Employees Association, previously put her into and continues to put her into a conflict when she served as a Fontana council member and is serving as Fontana mayor and voting with regard to that city’s municipal employee contracts.
Typically, municipal employee contract negotiations involve surveys of the salaries and benefits provided to employees with surrounding cities. In this way, Warren’s salary in Upland could have an impact on the salaries paid to comparable employees in Fontana.
Available Fontana City Council meeting minutes show that the council, including Warren, made a practice of meeting in closed session to conduct labor negotiations with representatives of the San Bernardino Public Employees Association and ratified the city’s final agreements with the association on the city’s labor contracts, known as memorandums of understanding, outside the scrutiny of the public. Fontana City Attorney Jeff Ballinger cited Government Code Section 54957.6 in justifying holding those negotiations in secret.
Warren’s participation in past employee contract votes leaves them subject to legal challenge.
The city administration in Fontana deferredto Ballinger  questions with regard to Warren’s circumstance and whether she will be precluded from participating in future votes pertaining to San Bernardino Public Employee Association-negotiated contracts. Ballinger is with the law firm Best, Best & Krieger, which serves Fontana under contract.. Repeated phone calls to the Best, Best & Krieger office in Ontario did not elicit responses from Ballinger or his firm colleague, Clark Alsop, who was previously city attorney in Fontana during much of Warren’s tenure there as a city councilwoman.

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