(August 12)  The San Bernardino City Council last week narrowly approved placing a city charter-altering measure on the November ballot.
San Bernardino is a charter city as opposed to a general law city. Its charter and amendments thereto, per state law, are approved by the city’s voters. One of the provisions put into the charter by means of a citywide vote over a decade ago – known as Section 186 – requires that the city’s public safety employees – firefighters and police officers – be paid on a scale equal to the average pay of police officers and firefighters in ten similarly-sized California cities.
San Bernardino has been beset with financial difficulties that culminated in the city’s filing for Chapter 9 bankruptcy in 2012. Former mayor Patrick Morris, whose eight years in office ended earlier this year, for the last several years of his tenure  maintained that a major factor in the city’s fiscal deterioration has been excessive salaries and benefits provided to city employees and retirees. Carey Davis, an accountant by profession and a political ally to Morris, succeeded Morris in March after defeating Wendy McCammack, a former councilwoman who had long championed generous pay increases for municipal safety employees.
Section 186 effectively locks in salaries for San Bernardino’s public safety employees that are at par with or greater than those salaries received by their counterparts in ten California cities. San Bernardino, the county seat and the largest city in the county, has a population of 210,000. Yearly, city officials and police and fire union heads start with a list of California cities with populations between 150,000 and 250,000. In turns, each removes a city from that list until ten remain. Salaries are then computated upon the average pay to that particular group – firefighters or fire department management or policeman or police management – in the remaining ten cities.
Over the last several years, San Bernardino has been particularly hard hit by the economic downturn that has gripped the nation, state and region. Despite the city’s 2012 filing for bankruptcy protection, it has continued to give firefighters and police officers raises in keeping with the provisions of Section 186 of the city charter. During Morris’s rein as mayor, a schism had developed on the council over the continuation of what some characterized as too generous salaries and benefits to city public safety employees. Morris and several of his allies pushed for concessions from the police and fire unions on salaries and benefits. One Morris ally in particular, former 3rd Ward councilman Tobin Brinker, was outspoken about the need to reduce city payroll costs and he championed a city employee pension reduction measure that earned him the enmity of both the police and fire unions.  He was targeted by those unions in the 2011 election and was defeated by John Valdivia, who upon election joined with the council coalition then led by councilwoman McCammack, which sought to sustain police and fire department pay at the established levels.
As one of his first acts in office, Davis called for the creation of a municipal commission to consider charter changes, suggesting that the requirement that police and fire officers be provided with raises based on salaries given to their counterparts in cities free of the financial challenges San Bernardino faces should be done away with. That move failed when it was pointed out that a municipal commission cannot be formed without prior voter approval. The proposal was adjusted to allow the creation of a citizens committee to review the city charter.
On March 17, the city council passed a resolution that was opposed by Valdivia which called for the creation of the citizens’ charter review committee. The resolution delineated that each of the council’s seven members would choose one registered voter from their respective wards to serve on the committee and that Davis would get two appointments to the panel, including one culled from the city’s business community.
Ward 1 Councilwoman Virginia Marquez selected Casey Daily for the committee; Ward 2 Councilman Benito Barrios  chose Dennis Baxter; Ward 3 Councilman John Valdivia appointed Gary Walbourne;  Ward 4 Councilman Fred Shorett selected Hillel Cohn; Ward 5 Councilman Henry Nickel chose Michael Craft; Ward 6 Councilman Rikke Van Johnson brought in Hardy Brown; and Ward 7 Councilman James Mulvill tapped Philip Savage.  Davis selected Thomas Pierce and Dan Carlone.
In May, the panel voted 7-2, with Walbourne and Craft dissenting, to make a non-binding recommendation to the city council that it use its authority to place a measure on the November ballot asking voters to repeal Section 186 and instead adjust salaries through the collective bargaining process.
In the current fiscal year, police department and fire department operations represent 68 percent of the spending out of the city’s general fund. Salaries make up the lion’s share of those departments’ operating budgets.
With the city’s bankruptcy filing, there was outrage in some quarters of the city over the continuation in the escalation of public safety employee pay. Morris became an outspoken advocate of pay and pension reform and supported Davis against McCammack in last year’s mayoral race, which resulted in a runoff between the two in which Davis prevailed earlier this year.
At a special meeting of the city council on August 7, the city council voted 4-3 with councilmen John Valdivia, Henry Nickel and Benito Barrios dissenting, to place two measures on the November ballot that will alter the municipal charter and, in theory, reduce costs. The first of those measures, if approved, would repeal Section 186. The second measure would repeal Charter Section 254, which requires that fired employees who are appealing their terminations to the civil service commission continue to be paid until the commission makes a decision on whether or not to reinstate the employee.
According to the resolution voted upon and approved by the council on August 7, “It is proposed that Sections 186 and 254 of the charter of the city of San Bernardino be amended by replacing the current language to read in their entirety as follows: Section 186. Salaries. The safety of the people in the city is a highest priority of its government. Compensation of police, fire and emergency safety personnel shall be set by resolution of the mayor and common council after collective bargaining as appropriate under applicable law, as it does for other city employees.  Section 254. Discharge or reduction of compensation. No employee in the classified service shall be suspended, discharged or reduced in classification for disciplinary reasons until the employee has been presented with the reasons for such action specifically stated in writing. The reason for such discharge or reduction and any reply thereto by the employee, shall be filed in writing with the civil service board.”
Efforts to dissuade the council from putting the measures on the ballot included charges that the first measure was intended to lower safety employees salaries in one of the most dangerous and crime infested cities in the state, would drive qualified police officers and firefighters to seek employment elsewhere, and was a prelude to the city outsourcing the fire department to the county fire department and paramedic service to a private provider American Medical Response.
Councilman Rikki Van Johnson said the charter sections 186 and 254 were vestiges of a bygone era that were hurting the city and its residents and he insisted the charter had to be brought “into the 21st century.”
Within several days, the fire and police unions created a website ionsanbernardino.com, which was intended to serve as a rallying niche against the charter amendments. Ionsanbernardino.com decried San Bernardino as “the worst run city in America,” going on to assert “San Bernardino SB deserves smarter budget choices.” “Reducing the number of police officers and closing neighborhood fire stations will not make San Bernardino safer or more prosperous,” according to the website
Those assertions on the website were countered by city officials pointing out that the charter changes would free up money to allow the city to maintain or even increase the city’s current level of police staffing and keep fire stations operating.

(August 12) JOSHUA TREE— The Morongo Unified School District Board of Education has chosen assistant superintendent Tom Baumgarten to serve in the capacity of interim replacement of Dr. Cecelia English who was forced out as superintendent in June.
No explanation for English’s departure has been provided.
English, who possesses a doctorate in education and had been the director of academics at the Newark School District in Northern California, was hired on a 3-2 vote of the board of trustees in June 2013, replacing Jim Majchrzak, with trustees Karalee Hargrove and Ronald Palmer in opposition.
English ran into opposition earlier this year during strained contract negotiations with the Morongo Teachers Association. A month after the board in May balked at giving English a 5.77 percent raise over her $175,000 annual salary, while conferring the same 5.77 percent raise on the district’s three assistant superintendents, Doug Weller, Tom Baumgarten and David Price, the school board on June 21 abruptly placed superintendent Cecelia English on paid administrative leave.
The grounds for the action against English was not stated. On June 27 at a specially scheduled meeting of the board, English resigned.
This week the board chose Baumgarten as her replacement for what is anticipated to be a one year period.
Formerly the assistant superintendent of student services,  Baumgarten was give a one year contract with an annual salary of $165,000. The contract terminates on June 30, 2015 at which point the district hopes to have found a permanent replacement for English and Baumgarten will return to his assistant superintendent post.
The board voted to extend  Doug Weller’s contract as assistant superintendent of human resources through June 2016. The board also voted to replace David Price, who has now departed as assistant superintendent of business services, with Sharon Flores. Flores was the senior director of fiscal services with the Rialto Unified School District, in which capacity she oversaw Judith Oakes, the district’s school lunch program accountant who is now known to have embezzled at least $1.8 million of the district’s money between 2005 and 2013 and may have embezzled a total of as much as $3.1 million going back to 1999. Flores resigned from her position with Rialto Unified.
All three votes taken by the board with regard to Baumgarten, Weller and Flores were unanimous.
Neither Baumgarten nor the board offered an explanation of English’s departure beyond reference to a joint statement attributed to the board and English that was released in June in which it was asserted English “voluntarily requested to resign… to pursue other opportunities.”

(August 12) Buffeted by scandal and controversy, Rialto School Board President Joanne Gilbert is not seeking reelection this year, seemingly drawing to a close what some had seen as a budding political career.
Last year, Gilbert demonstrated pluck and political ambition when she ran in the special election to replace Gloria Negrete-McLeod as state senator in the Democratic-leaning 32nd District. Torres vacated that position with two years remaining on her term when she was elected to Congress in the November 2012 election.
At that point,  Gilbert, who touts solid Democratic credentials,  was riding high enough to be confident about testing the political waters. Six months after the special March 2013 election, however, the first in a series of blows rocked the Rialto Unified School District.
In August 2013, word of a decade-long string of embezzlements perpetrated by Judith Oakes, the accountant with the school district who oversaw the lunch program surfaced with Oakes’ arrest. An audit showed that Oakes had made off with at least $1.8 million of the district’s money between 2005 and 2013 and may have embezzled a total of as much as $3.1 million going back to 1999,
Gillbert had been on the school board since 2000.
The Oakes revelation led to further inquiries and discoveries of questionable practices within the district.  On September 14, 2013 the district moved to suspend Dr. Harold Cebrun, the district superintendent, as well as Cebrun’s chief of staff, James Wallace, who also served as the district’s assistant superintendent of student services, shortly after Oakes was arrested.
Cebrun repeatedly denied any knowledge of Oakes’ illicit activities. A close examination of Oakes’ activities by investigator Jeff Stewart churned up evidence that the district administration had been somewhat lackadaisical in monitoring Oakes, though her activity predated by some seven years Cebrun’s hiring by the district. The district kept elements of the investigation carried out by Stewart very close to the vest and did not publicly share details unearthed by the Rialto Police Department as well. It was unclear whether the district had sufficient grounds upon which to terminate the superintendent. The district kept him in limbo for more than six months, continuing to pay him but taking no official action to severe him. One member of the board, Joseph Ayala, advocated for returning Cebrun to the helm of the district. He was outvoted by his colleagues. In March, Cebrun voluntarily left his employ with the district.
Wallace remains on the district payroll. He earned  $170,501 in the 2013-14 school year, for most of which he remained at home. He will again make $170,501 in 2014-15, again for performing no work, unless the district reinstates him, which appears unlikely.
There were further indications given that the district was being poorly run earlier this year.  In March, a state audit of the district showed  it had spent over $28,000 on employee perks, incentives and awards in a dubious effort to boost staff and faculty morale.
That spending included credit card purchases that included  $7,201 in payments made to Nike by the superintendent’s office over a two-year period, unspecified payments made to Paypal, a Las Vegas casino, a florist, payments to cover meals at restaurants on weekends, $7,429 for picture frames apparently to serve as a backdrop for photos of employees to be selectively honored; $7,614 spent on an employee appreciation dinner at ESPN Zone; and over $14,000 spent for engraved trophies intended as awards to deserving employees. According to the auditors, the actual value of the trophies was under $2,000. The district’s previous accounting firm,  Vavrinek, Trine, Day, had not made any notation with regard to the expenditures deemed questionable by the state auditors and was subsequently terminated as the district’s financial overseer.
The coup de grace came for Gilbert in May when it was revealed that in April, eighth graders in the district had been given a writing assignment in which they were instructed to debate whether the Jewish Holocaust arising out of World War II and its occupation of the countries Germany invaded was “merely a political scheme created to influence public emotion and gain.”
The district initially defended the assignment as an argumentative writing research project intended to teach students to evaluate  evidence marshaled by supporters or  opponents of a position. After the  Los Angeles-based Anti-Defamation League criticized the education assignment as having “no academic value” and giving “legitimacy to the hateful and anti-Semitic promoters of Holocaust denial,” the district relented. Gilbert and other district officials found themselves being subjected to charges of anti-Semitism.
Gilbert did not file for reelection by the 5 p.m. deadline on August 8, stating only that she was “tired and worn out” by the controversy that has beset the district over the last year.

(August 13) The death of Kip Sturgeon, whose service in elected office marked something of a milestone in San Bernardino County political history, leaves unresolved a controversy over public access to information in the East Valley Water District.
Sturgeon  was among a handful of homosexual men who found success in the electoral process in San Bernardino County over the last three decades in spite of a personal sexual preference that was out of the region’s cultural mainstream. Unlike others in that category, Sturgeon made no effort to hide his orientation.
Sturgeon, who apparently died at his own hand on July 30, was a member of the East Valley Water District Board of Directors for 23 years. He had been a resident of Highland since 1987 and was born and raised in the East Valley.
He had served in the Seabees, the United  States Navy’s construction battalion in the capacity of a  heavy equipment operator. He obtained  an associate’s degree in business administration from Crafton Hills College and an administration of justice degree from San Bernardino Valley College.
Sturgeon volunteered with numerous nonprofit community organizations, including the Burn Institute-Inland Empire, now known as the Fire and Burn Foundation, the Childhood Cancer Foundation of Southern California, Rotary Club of San Bernardino North and the California YMCA. He was also a sergeant in the California State Military Reserve.
Sturgeon generally cultivated positive relationships with fellow board members over the years as well as with officials with companion agencies such as the San Bernardino Valley Water Conservation District. Late last year, however, Sturgeon became enmeshed in controversy after he facilitated the provision of information relating to the East Valley Water District that at least two of his colleagues considered confidential information.
In January of this year Sturgeon’s strongest rival on the board, Matt Levesque, sought and succeeded in getting the district attorney’s office to look into allegations that Sturgeon provided information pertaining to salary and bonuses for district general manager John Mura that the board was contemplating and which they had discussed behind closed doors.
What is known is that the board discussed Mura’s salary and benefit package during an executive session. The board agreed to utilize a survey of the salaries provided to the general managers of other water agencies to arrive at a consensus of what would be offered to Mura. When the district’s personnel division completed that survey, it emailed a list of positions and salaries to the board members.
Sturgeon has acknowledged that before any vote was taken on what Mura would be offered, he provided a copy of the list to the Highland Community News. He maintained that he believed the list, which contained information that was publicly available from each of the district’s surveyed, qualified as public information.
The other members of the board – James Morales, Jr., Ben Coleman, Ronald Coats, and Matt Levesque, maintained the list was the work product of ongoing closed door deliberations and should not have been distributed to the public.
Coleman and Coats appeared to be prepared to let the matter be redressed by a stern warning to Sturgeon. But Levesque, who had for years been on amiable terms with Sturgeon and had been closely associated with him in their shared charitable fundraising efforts, had by last year morphed into the closest thing resembling a political rival to Sturgeon on the board. At that point, Levesque was  board chairman and, proclaiming himself to be particularly incensed at Sturgeon’s action, said he was determined to see the matter taken up on an official level. Sturgeon had initially denied being the source of the leak, which, Levesque implied, demonstrated criminal intent and consciousness of guilt.
Levesque prevailed upon the board to send the matter to the district attorney’s office and its public integrity unit.
The complaint to the district attorney’s office contained further reference to Sturgeon having publicly disclosed, again through the Highland Community News, that the board was contemplating conferring on Mura a $50,000 bonus. The newspaper then reported on the matter before the board made a public announcement regarding it.
Sturgeon’s board colleagues made the request inviting the investigation into  “possible violations of the Brown Act” by Sturgeon despite suggestions that the board had itself, over Sturgeon’s objections, skirted provisions of the same law by conducting the private discussions without proper and full disclosure, which is itself a violation of another provision of the Brown Act.
The Brown Act, which exists as California Government Code §54950 et sequitur, is intended to ensure that public issues are handled in the open so that citizens can participate in the governmental process. It does permit some degree of confidentiality to be maintained where secrecy is deemed appropriate and premature disclosure of information might be detrimental to the public interest. Government Code Section 54963, which Sturgeon was alleged by his colleagues to have violated, provides that a person may not disclose confidential information that has been acquired by attending a properly closed session to a person not entitled to receive it, unless the disclosure is authorized by the legislative body.
There are loopholes in section 54963, however. Under it, no action can be taken against a person for making a confidential inquiry or complaint to a legally constituted authority concerning a perceived violation of law, including disclosing facts that are necessary to establish the illegality of an action taken by a legislative body or the potential illegality of an action that has been the subject of deliberation at a closed session if that action were ultimately to be taken by the legislative body. Nor can action be taken against an official who has made disclosure of material or discussion from a closed session if that person is expressing an opinion concerning the propriety or legality of actions taken by a legislative body in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action.
Moreover, no violation of section 54963 can be deemed to have occurred if the disclosure involves information that is not in fact confidential information.
Levesque’s insistence that the district attorney be brought into the case was a curious one in that he acknowledged that he violated one of the provisions of the Brown Act, specifically engaging in serial meetings of the board’s members, which is prohibited under  Government Code Section 54952.2(c)(1).
The complaint to the district attorney’s office had not been fully resolved at the end of July, leaving unanswered questions as to whether Sturgeon was considered legally justified in taking the action he did to alert his constituents about how the water board intended to spend the taxpayer money entrusted to it. At this point it is not known to what degree the probe was weighing upon Sturgeon when he checked into the Ayres Hotel, located at 1015 West Colton Avenue in Redlands.
On July 31, Redlands police and then the Redlands Fire Department responded to a call from the Ayres Hotel of a man found dead in a room there, finding Sturgeon. According to authorities, his death appeared to be consistent with a suicide. Sturgeon was 50 years old. The coroner’s department has not released the results a pathology test to determine the exact cause of death.
Sturgeon’s election to the water board came after David Dreier’s election to Congress in 1980 and Bill Postmus’ election as county supervisor in 2000. In this way he falls within the first  generation of San Bernardino County politicians who were able to stay in office despite widespread voter recognition of their homosexuality.
In the cases of Dreier and Postmus, public revelation of their sexual orientation was not voluntary made. Dreier for nearly two decades kept the true nature of his sexual orientation under wraps, at which time his relationship with his office chief of staff became well recognized in Washington, D.C. and slowly made its way to his California district. Postmus, who went on to become both chairman of the board of supervisors and the San Bernardino County Republican Central Committee, actively sought to keep his private life from the public. In the course of that, he has now acknowledged in sworn testimony, he became subject to blackmail. By the time he ran for reelection to the board of supervisors in 2004, a growing number of his constituents recognized he was gay. In 2006, an even larger number of the county’s voters had become aware of his alternative lifestyle and he was yet able to be elected county assessor.
Sturgeon, while not celebrating his sexuality, did not seek to hide it. He was elected and reelected six times.
“Mr. Sturgeon was a treasured member of the East Valley family, and a valued friend to Highland and San Bernardino,” said James Morales, Jr., who has replaced Levesque as the East Valley Water District chairman of the board. “We send our deepest condolences to his family and friends during this difficult time.”
He is survived by his husband, Carl Kovach.

(August 14)  In most of the city and town council races around San Bernardino County to be contested on November 4  incumbents are seeking to remain in office.
In Chino Hills, incumbents Peter Rogers, Ed Graham and Ray Marquez will face three challengers, Lou Alfonso, Rossana Mitchell and Debra Hernandez in that city’s November city council race.
In Chino incumbents Eunice Ulloa and Earl Elrod are unopposed for reelection.
In Redlands former San Bernardino County Supervisor Neil Derry, insurance salesman Paul Barich, and former county transportation agency spokeswoman Jane Dreher have joined with incumbents Jon Harrison and Paul Foster in running for city council.
In Victorville, city councilman Jim Kennedy is seeking reelection. He is joined by candidates Silver Valley High School teacher Christopher Greene, former Mojave Water Agency spokesman Michael Stevens, retired military civilian employee Eric Negrete and retired military serviceman/Victor Valley African-American Chamber of Commerce president Lionel M. Dew.
In the town of  Apple Valley, all three incumbents, radio personality  Barbara “Barb” Stanton, auto parts store owner Fred “Scott” Nassif and Curt Emick are running for reelection, facing challenges by former councilman and mayor Rick Roelle, as well as Tom Piper, Richard Bunck and Salvador Ortiz-Lopez.
Incumbent Hesperia councilmen Russell E. “Russ” Blewett and Bill Holland are seeking reelection while facing challengers Stirling Christiansen, Christopher J. Elvert, Anthony Rhoads and James Roberts.
In Adelanto, incumbent mayor Cari Thomas is being challenged by councilman Jermaine Wright, as well as Ronald Beard and Rich Kerr. The two incumbent councilman in Adelanto up for reelection, Steve Baisden and Charles S. Valvo, are vying against former Adelanto Mayor Charley B. Glasper and Jeremiah Thompson.
In Needles,  Louise Evans, Robert Richardson M.D., Bob Shaw and former mayor Jeff Williams are challenging incumbent council members Terry Campbell, Shawn Gudmundson and Linda Kidd.
In Hesperia, Mayor Thurston “Smitty” Smith is not running again.
Jay Obernolte is not seeking a second term on the Big Bear Lake city council, as he is currently vying for the California Assembly in the 33rd District.
In Redlands, Bob Gardner is not seeking reelection.
In Victorville, Angela Valles is not seeking reelection.
Leonard Paulitz, who has served on the Montclair City Council since 1978, will not seek reelection this year.

By Ruth Musser-Lopez
8-1-2014.   A couple of weeks ago, the Glimpse of SBC’s Past column was about historic “Historic Water Heists” reflecting upon the current situation of water drought and shortages in our Great Golden State.  Reported in the article, was the Central Valley’s farmers protest of the failed California water supply by posting repeated signage along Highway 99 between Bakersfield and Sacramento reading “No Water, No Jobs…Valley Farmers 2014” and “Food Grows Where Water Flows.”   These signs were illustrated in the article.   One of the signs, not illustrated, blamed “Congress” saying “Congress Created Dust Bowl” and “man made drought.”
On July 29, a Fresno Bee reader, Robert J. Thompson apparently had enough and wanted farmers to support by evidence, their opinion as expressed on their bill boards.  Thompson wrote:  “I would like a farmer to explain to me how this is a politician-created water crisis. How did the politicians divert the rain from the Valley? How did the politicians create this arid Valley? How did the politicians make people farm in areas that have insufficient water in time of drought? How did the politicians deplete the groundwater?  Did the politicians require the farmers to use flood irrigation or plant new orchards? Didn’t the politicians build the dams and canals that store the water for farmers to use in the dry months? Have the politicians required farmers to use wasteful and inefficient irrigation practices? If there are answers to my questions, please put them on your signs, so I can read them as I drive by.”    http://www.fresnobee.om/2014/07/29/4046493/questions-for-farmers.html?fb_comment
Thompson raises excellent questions and since I had a little backyard farm in 2012 and 2013, my Dad was, for about ten years, president of the San Bernardino County Farm Bureau and I have experience on water priority issues as a result of his farm in Idaho, I consider myself to be qualified to answer “farmer questions.”  So here is my take:
Given a finite, not unlimited, amount of water within an aquifer, the availability and distribution of water boils down to priorities and who sets them. Politicians, our elected officials, are responsible for policies that govern priorities placed upon water containment and usage.  Currently, with an August 31 deadline, our own Governor Brown is briskly at work with lawmakers in Sacramento  on a priority bill that might become a landmark measure to regulate groundwater pumping for the first time.  Senate Bill 1168, sponsored by Senator Fran Pavley, could become the most significant water law passed in California in nearly 50 years, requiring local agencies and governments to bring their ground water levels back up to sustainable levels. The bill would require accountability and regular measurement of how much water is being pumped. Well logs, pump taxes, recharge during wet years and priority basins are concepts being considered.  The Porter-Cologne Act empowering government to crack down on water pollution in the State was the last monumental California water measure, passed in 1969 and became the model for the federal Clean Water Act.
Earlier this term, politicians also vote on such questions as “should. there, or should there not be a moratorium on fracking?”  and should it be lawful to use good water for fracking.  Fracking, short for hydraulic fracturing is the process of injecting liquid at high pressure into subterranean rocks, boreholes, etc., so as to force open existing fissures and extract oil or gas.  Each fracking job or well uses about 2-8 million gallons of water, but the term “job” is not strictly defined and some wells consume much more.  A well may be fracked multiple times each time consuming more water.  The record shows that billions of gallons of water are turned into toxic fracking sludge every year – on shore and off.
Lately, that sludge has been injected into deep abandoned oil wells and the water that is mixed with the fracking chemicals is lost forever from the surface environment and our precious hydrological system of evaporation and precipitation.   By the way, the chemical ingredients are kept from the public as “trade secrets.”
Because fracking is a relatively new technology, the future consequences of fracking are unknown and the potential dangers of fracking in an earthquake zone are unknown.  For this reason, some politicians had the good sense to call for a moratorium on fracking until the technology, as it exists in the environment of California, can be studied and until we can learn more about its long-term environmental impact. However the fracking moratorium bill California State Senate bill SB 1132 failed.  Onshore fracking turning billions of gallons of clean water into toxic waste is a reality thanks in part to Senator Jean Fuller (R) who voted against the moratorium.
Senator Jean Fuller (R) whose district includes the huge belt across the north half of San Bernardino County, the east and west Mojave Desert, all the way to Bakersfield and Tulare in the Central Valley. A top contributor to Senator Jean Fuller’s campaign is the oil industry…California Independent Petroleum Association ($3,900), Occidental Oil & Gas ($3,900), Valero Energy ($3,900), plus a whole slew of others, Conoco, Kern oil, totalling $22,800 from the oil and gas industry. Now she wants to be our Senator again in the new Senate District 16.
Farmers might want to note that the water used for feacking could have been used for farming and producing food. Instead it will be used for oil industry profits.
Here is one more thing to keep your eye on when you go to vote and see Jean Fuller’s name sitting so “sweetly” there.  It’s called the “HECA” project. The so-called “clean coal” element of the HECA project sounds healthy but in reality burning it would release significant toxic pollutants into the air and the operation would take 6.6 million gallons every day of the slightly brackish water currently being used on almonds and pistachios in the area.
Billed as a hydrogen energy project, HECA, proposed for the Bakersfield area, promises to produce energy for the production of chemical fertilizer, a little energy for the grid, but large quantities of CO2, the byproduct or waste of burning coal. The CO2 is problematic because of its link to global warming, but the proponents pitch is that it would be injected and “sequestered” into oil wells.
The latest twist on the process of fracking is the addition of CO2.  By adding carbon dioxide into the deep oil wells, oil companies hope to bring up the last drop of oil to the surface kind of like shaking up a bottle of coke before uncapping it.
Carbon sequestration is a geoengineering method being sold as a means to reduce the amount of CO2 in the atmosphere under the belief that there is global warming due to excessive CO2 in the atmosphere.  The US Government, and oil companies have partnered to use old oil wells to “store” carbon dioxide gas. A well thousands of feet deep is reported to be capable of being filled and compressed with billions of cubic feet of gas.
The downside is that with the addition of CO2, a well filled with oily gas and other hazardous chemicals previously injected there could potentially contract “environmental gastroenteritis” ending with a belch of the entire hazardous mess erupting like a toxic volcano.
It has been reported that CO2 has eaten through old, capped wells and spewed CO2, methane, brine, oil, and drilling muds in Mississippi. One vented for over a month.   In another case, gas was bubbling up in a nearby water well. For California, earthquake-causing releases should also be considered.  Multiple earthquakes centered around fracking operations and eruptions of liquid sand brought up by carbon dioxide was reported in late May of this year in the area of Greely, Colorado where a four mile long newly formed giant sand flow was video taped and as can be seen on youtube. (https://www.youtube.com/watch?v=X2Omha8C4WY&feature=share).
Many opportunities exist for politicians to change water policy and to make more water available to farmers. Fuller also voted against requiring urban and rural water conservation plans to be developed and implemented. Is it fair that some farmers install drip systems trying to spread the water wealth around while others continue to irrigate wastefully just because they can?
We’ve got penalties now for water wastefulness, $500/day…the legislature should now move onto a discussion about incentives and providing incentives for installing water use efficiency systems, drip irrigation and reconditioning of warn out pipes.
The State of California, on its UCLA campus experienced a giant water pipe burst this past week. The water that poured out of there could have easily watered a couple hundred acres of neighborhood gardens and fields of fresh vegetables. While the pipe burst posed more urgent concerns such as threat to lives, loss of important buildings and people’s vehicles in the flooded parking garage, the burst gave us all pause to reflect upon how many other old urban area giant pipes are in need of reconditioning or replacement?
Some up front preventative maintenance would save us from future water losses and put people to work. UCLA is State owned, so there should be State money that needs to be used to tidy up the state infrastructure–setting an example for all.
The planting of permanent orchards by junior water right holders is ill advised business management in the first place, but my hot button is the raping of the California Desert Conservation Area of water in the most water deprived area of the state–the Mojave Desert, in order to provide more water to coastal communities where rainfall is relatively plentiful.
When this state allows and does not prohibit the pumping and piping of water (the Cadiz Project) out from under the East Mojave Desert in order to provide coastal gated communities with more lakes and ponds (that are in a constant state of evaporation) car washes and golf course–then its time for change.  Any water conservation effort on the coast and central valley lessens the threat of more pump and pipe water heists from the desert aquifer.
An example this week of the devastation that over pumping can cause, the Fresno Bee on July 25 reported that water pumping in the west San Joaquin Valley floor is causing the ground to sink and that a new California Water Foundation report says there is no undoing of the underground collapses and no ability to refill those underground spaces when wet years return.  “There are very costly consequences of land subsidence as we’ve discovered in the past,” Andrew Fahlund, deputy director of the nonprofit California Water Foundation told Fresno Bee reporter Mark Grossi, giving a figure of  $1.3 billion in damages.
The California Farm Bureau expressed fear that if the Pavley bill (SB 1168) passes, there will be unintended consequences, huge financial impacts to farmers, particularly almond and walnut growers. It has been reported that many of the nut  orchards are newer and use junior water rights, pumping deeper and deeper in a race to get the bottom of the cup of water first.
Paul Rogers, progers@mercurynews.com reported the Farm Bureau’s concern and the expressions of confidence in the bill by supporters like the Association of California Water Agencies, which represents 440 water districts in the state, who say that action is already long overdue.
“It’s like a shared bank account. But nobody ever has to balance the checkbook,” Rogers reported Lester Snow, former director of the state Department of Water Resources, as saying. “We have based a large part of our economy on deficit spending of groundwater. It has to come to an end…Overall, California pumps out about 2 million acre-feet a year more than is replenished, according to state estimates. That’s enough water for 10 million people a year. The cumulative overdraft over the past 70 years is enough to fill Lake Tahoe.”
Rogers reported that the “the Central Valley — from Redding to Bakersfield — is consuming twice as much groundwater as nature is returning through rain and snow, studies from the University of California and the U.S. Geological Survey have found.”
(Read more here: http://www.fresnobee.om/2014/07/25/4040983/new-report-warns-no-groundwater.html?sp=%2F99%2F217%2F&ihp=1#storylink=cpy)
State mandates that prohibit pumping down an aquifer would protect against subsidence and aquifer heists  like the Cadiz Project.
The Cadiz pump and pipe project, proposed for the East Mojave Desert, needs to be stopped and rendered moot, unless this State wants to turn the most awesome Joshua Tree studded wilderness full of rare and amazing plant species and wildlife into a dead Sahara.  The Mojave Desert attracts a billion dollar tourist industry and makes up a big chunk of Senate District 16–currently under Sen. Jean Fuller’s watch. I have not seen her do one thing to stop the Cadiz Project and in fact she encourages the construction of more evaporating reservoirs where there is 1) no water to fill the ones we already have, 2) when above ground reservoirs waste water through evaporation and 3) where water is already stored naturally underground in the desert and filters naturally through desert sand on down to the Colorado River where it surfaces and can then be used for domestic, recreational and agricultural purposes.
We need new state rules on the local management of groundwater, but it is a huge risk to put the power of making those new rule in the hand of incumbents like Jean Fuller. I am personally doing my best to replace Fuller this Nov. 4. in Senate District 16 and bring common sense to the management of ground water aquifers rather than special interest management bills designed to disproportionately favor a wealthy sector.

About the author:  Ruth Musser-Lopez is a candidate for California State Senator in District 16.  Her name will be on the ballot this November.  She may be reached at Ruth@RiverAHA.org.  Be her friend on Facebook at Ruth Musser-Lopez, 760/885-9374.

This report has been prepared in part by the “Ruth Musser-Lopez for CA Senate 2014” (I.D. #1367746) committee.  For more information see Ruth2014Senate.com

(August 11)  Coinciding with escalating unrest over development in Chino Hills, the city’s public works department took remedial action over the contamination of a water line north of Carbon Canyon Road. Some residents suggested, without marshalling incontrovertible proof, that the water line had been compromised by nearby construction activity.
The construction project suspected of being the cause of the problem, Canyon Hills, is just one of six projects entailing 253 homes which will soon be constructed in the city of 76,131 at the extreme southwest end of San Bernardino County.
Canyon Hills is a 141-acre property with a recorded final map for 76 lots off of Carbon Canyon Road and nestled against Chino Hills State Park. The land plan is designed around the rolling topography and native oaks and will feature excellent vistas.
The previous owners of Canyon Hills spent more than 10 years and millions of dollars planning and entitling the property. When the market crashed, they were motivated by the ability to carry-back tax losses from the sale of the property. Forestar/Foremost Communities,  the current developer, acquired the property  less than one month after signing a letter of intent.
A previous impediment to the development of the property was the lack of sewer service to that portion of Chino Hills. A nearby project recently extended a sewer main and built a pump station that is sized to serve Canyon Hills, making the project viable at this point. Foremost/Forestar has now extended the water and sewer lines to the property.
Yet the same dramatic vistas that will be a huge selling point to buyers in Canyon Hills have proven to be a secondary problem to the project in that residents of the area surrounding the 141-acre property fear that the development of the land will compromise its current aesthetics.
Over the last several months, a group of Chino Hills residents,  Hills for Everyone, has formed, and it members have raised over $30,000 to be used in an effort to prevent Carbon Canyon with being overrun by development.
Against this backdrop, a massive flow of water began hemorrhaging from a newly completed water line near the Canyon Hills development. The flow continued for at least two days before it was brought to the attention of the Chino HIlls Public Works division late last month.
The city then examined the circumstance, taking samples of water from the line. Lab tests showed bacteria was proliferating in the water. The city contacted the developer, who then began flushing the line in an attempt to clean it. Water was blasted at a high level of pressure through the line on on July 28, July 31, August  1, August 4 and August 5, each time accompanied with chlorinated water to kill the bacteria.
All told some 750,000 gallons of the bacteria-laced water were flushed from the waterline. Follow–up lab tests of water from the line are now being conducted.
The oversight in the construction activity provided a public relations opportunity for Hills For Everyone, which in addition to having concerns about aggressive building in Chino Hills, is also taking a stand against a 162-unit project that was approved by the city of Brea just outside the Chino Hills city limits in Carbon Canyon.
In addition to Forestar/Foremost Communities’  Canyon Hills’ 141-acre, 76-home development, which is to include gated streets and housing stock described as  “mini-mansions,” there are five other projects pending within Chino Hills. The largest is Chino Hills Country Club LLC’s proposed 107 estate home subdivision, formerly known as Soquel Canyon Country Estates and the Ranch at Carbon Canyon, which is to be built on  537 total acres on the south side of Carbon Canyon Road at Canyon Hills Road.
Another development is Stonefield LLC effort to make good on the 2009 approval of 28 homes on 35 acres within a gated community at the northeast corner of Carbon Canyon Road and Fairway Drive.
A new owner has also assumed the entitlement, Richard and Soledad Meaglia obtained on October 20, 2009 to subdivide  6.64 acres into 11 residential lots, two open space lots and one lot for a private street on the north side of Pinnacle Road south of Carbon Canyon Road.
Recently, Caltrans redressed landslide issues in the environs of property south of Carbon Canyon Road and east of Canon Lane, which will allow a 38-dwelling unit project on 68 acres there that was originally approved for applicant Shanghai Aviation Industrial Corporation by the county of San Bernardino in 1988.
In addition, the city’s planning division is now putting the finishing touches on an application  for the construction of 23 homes in the Carbon Canyon area at the extreme end of Red Apple Lane south of Carbon Canyon Road.

The western coachwhip by legend and reputation is known for something it actually does not do, which is to chase humans.
Known by the scientific name masticophis flagellum, the coachwhip is a species of nonvenomous colubrid snake. They are commonly referred to as the coachwhip or the whip snake, and are endemic to the United States and Mexico. They are present in San Bernardino County’s Mojave Desert.
Coachwhips are thin-bodied snakes with small heads and large eyes with round pupils. They vary greatly in color, adapting to take on the color of the soil and vegetation in which they reside as part of a natural  camouflage.
Coachwhip scales are patterned, giving  most of the snake’s exterior a braided appearance.  Adults normally range in size from fifty inches to six feet long and can be as heavy as four pounds. The largest versions of the snake can reach close to eight feet. Young snakes can weigh up to a pound and a half and are on average about three feet long.
Coachwhips are oviparous, so little or no embryonic development beyond conception occurs within the mother. Females lay eggs in early summer. The eggs hatch in 45 to 70 days.
Coachwhips are diurnal, and actively hunt and eat lizards, small birds, and rodents. They are highly weary of potential threats and, and will normally bolt at the first sign of one. They are extremely fast-moving snakes. They possess keen eyesight and will raise their heads above the level of the grass or rocks to take in what is around them.
An apocryphal myth has grown up around coachwhips, holding that they chase people. This is a falsehood that has likely been perpetuated as the result of circumstances in which both a coachwhip and a human encountered one another, became frightened simultaneously, and both took flight, just happening to move in the same direction. Because they are so fast, indeed capable of covering ground as or almost as rapidly as a human, they can give the impression of aggression should they head in the direction of someone. .
A even further fetched myth that abounds, though mostly in the Southeast, is that the snake, upon being disturbed, will chase a person down, envelope him or her in its coils, and whip the victim to death with its tail, and then make sure the recently departed is dead by sticking its tail up the victim’s nose to see if he/she is still breathing.
Actually, coachwhips are neither constrictors that dispatch their prey by suffocating with their coils nor strong enough to overpower a person. Also, they do not whip with their tails, even though their tails are long and look very much like a whips.
The snakes will bite if they make physical contact with a human and their bites can be painful, but are for the most part harmless unless the wound becomes infected.

Once you have opened this post, you can download a copy of the August 8 San Bernardino County Sentinel by clicking on the portal below.

Sentinel 08-08-14

(August 7) Prosecutors this week made a major stride in their efforts to send a developer and three former public officials he is accused of bribing to prison when after an exhaustive round of motions for dismissal by the defense the Superior Court judge hearing the case left standing eighteen of the original 29 counts contained in the May 2011 indictment of the four defendants.
Wednesday, August 6 was the seventh day of hearings since July 23 on five motions brought by the defense on a comprehensive set of motions seeking dismissal of all of the charges in the indictment and a single motion by the prosecution seeking to disqualify the law firm representing the central defendant in the case.
While over the course of the previous six days of hearings the indications of and rulings by Superior Court Judge Michael A. Smith augured well for the defense and kindled hope in the defendants that the case in its entirety might be thrown out, the tenor of Smith’s rulings sharply changed this week and he left standing key components of the prosecution’s case intact. In his statements from the bench explaining the rationale for his decisions, Smith, who was a prosecutor before he was elevated to a judgeship, countered many of the defense’s assertions of innocence in ruling that the grand jury that indicted the quartet had been provided with adequate and even abundant evidence indicating their guilt on the 18 surviving charges in the indictment.
In that indictment, Rancho Cucamonga-based developer Jeff Burum stands accused of employing one-time sheriff’s deputies union president Jim Erwin and Mark Kirk, the former chief of staff to San Bernardino County Fourth District Supervisor Gary Ovitt as his agents in persuading former supervisors Bill Postmus and Paul Biane to accept bribes and improperly influence Ovitt.
According to the prosecution, Burum proffered bribes to Postmus, Biane and Kirk as part of an effort to obtain a favorable settlement of a lawsuit brought by one of Burum’s companies, the Colonies Partners, against the county and its flood control division over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
Burum and Dan Richards were the two managing principals in the Colonies Partners, a consortium of 21 investors who had successfully completed the Colonies projects on 440 acres of property formerly owned by the San Antonio Water Company.
Burum hired public relations consultant/communications professional Patrick O’Reilly to prepare in 2006 mailers which revealed that Bill Postmus, who was then the chairman of the county board of supervisors and the chairman of the San Bernardino County Republican Central Committee, was a homosexual and drug addict and that Biane was insolvent and on the brink of bankruptcy. That year Postmus was running for county assessor. Biane was sponsoring a countywide initiative, Measure P, which called for increasing the annual salary of each county supervisor from $99,000 to $151,000.
Ultimately, Burum never posted those mailers to county voters, and Postmus in November 2006 was elected assessor and Measure P passed. Three weeks after that election, with Postmus, Biane and Ovitt in the majority and supervisor Josie Gonzales and then-supervisor Dennis Hansberger dissenting, the board of supervisors voted 3-2 to settle the Colonies lawsuit with a $102 million payout to the Colonies Partners.
Between February 2007 and the end of  June 2007, Burum and Richards made separate $100,000 donations to political action committees set up and controlled by Erwin, Biane and Kirk and two $50,000 donations to each of two political action committees set up and controlled by Postmus.
In January 2010, a secret grand jury was impaneled. After prosecutors with the San Bernardino County District Attorney’s Office and the California Attorney General’s Office presented evidence to it, that grand jury handed down an indictment naming Postmus and Erwin on extortion and bribery charges and describing, though not naming, Burum, Richards, Biane, Kirk and O’Reilly as unindicted coconspirators.
Both Postmus and Erwin entered not guilty pleas to the charges in that indictment. In March  2011, however, Postmus pleaded guilty to all 14 charges against him in that indictment and agreed to turn state’s evidence. He was then called before a newly impaneled grand jury as the star witness among more than 40 witnesses who testified in April 2011. In May 2011 that grand jury handed down a superseding indictment, consisting of 29 charges naming Burum, Erwin, Biane and Kirk.
In short order, defense attorneys  filed demurrer motions challenging the case against their clients on the sufficiency of the evidence and applicability of the law. In August 2011, Judge Brian McCarville granted several of the defendants’ demurrers, ruling that prosecutors erred in simultaneously charging Burum with conspiracy to engage in a bribing scheme while also charging him with aiding and abetting the receipt of bribes. McCarville also ruled that Burum could not be charged with misappropriation of public funds since he was not a public official, leaving only two of the original seven charges against Burum, the figure at the center of the case, intact. McCarville further dismissed one felony count of misappropriation of public funds for each of the other defendants. The prosecution appealed McCarville’s ruling to the Fourth District Court of Appeal in Riverside, which in October 2012 upheld McCarville with regard to the four bribery counts against Burum that had been tossed, and also threw out a conflict-of-interest count McCarville had let stand. The appeals court did, however, reinstate the misappropriation of public funds charge against Burum that McCarville had dismissed.
Prosecutors then made a last-minute appeal of the Fourth District’s ruling to the California Supreme Court on December 10, 2012.  More than a year later, on December 23, 2013, the California Supreme Court reestablished the essential elements of the case, granting the gist of the prosecution’s appeal more than a year and two months after the Fourth District Court of Appeal in Riverside dismissed the most crucial charges lodged against Burum.
Last year and earlier this year, Burum’s attorney, Stephen Larson, a former federal judge, filed a total of five motions to dismiss the case, including ones based on statute of limitations grounds, lack of probable cause, prosecutors’ misinstruction of the grand jury, withholding of exculpatory evidence, prosecutorial misconduct, misconduct on the part of investigators in their filings to obtain search warrants and an illegal effort by both prosecutors and investigators to seize privileged materials in the possession of the defense team. The defense attorneys for the other defendants piggybacked on those motions.
Beginning on July 23, Smith began hearing oral arguments on those motions before a near-capacity crowd in one of the largest courtrooms in the newly opened San Bernardino Justice Center.  In one of his first rulings, he severely weakened the prosecution’s case by dismissing conspiracy charges against the defendants  on statute of limitations grounds. That dismissal also erased the 43 overt acts alleged as part of the conspiracy in the indictment.
Smith then moved on to throw out 12 other charges in the case, likewise on statute of limitations grounds, pending his own determination of whether he would give the prosecution the opportunity to amend the complaint.
At that point, with the hearing on the five motions to dismiss having progressed only half way through the first motion, the prosecution’s case appeared to have been severely compromised and there were confident pronouncements from some in the defense camp that the case would be completely dismissed before all of the motions were heard.
When the second week of hearings began on July 25, a subtle shift in favor of the prosecution manifested in the courtroom. Smith had at that point yet to fully rule with regard to the defense’s challenge of the prosecution’s assertion that  law enforcement officers did not learn of the alleged bribery scheme until November 2008. Smith entertained defense arguments that the victim, i.e., the county and its officials, knew of or had strong grounds to suspect as early as 2006 that the illegal activity described in the indictment had taken place, thus making the May 2011 indictment too late given the three-year statute of limitations.
Ultimately, however, Smith made a finding that though there were numerous suspicions with regard to, and even unsubstantiated allegations of, wrongdoing being batted about while a negotiated settlement was being sought in 2006, the circulation of such rumors did not meet the legal standard for initiating a criminal investigation. Smith called the suspicions no more than “a gut feeling something wasn’t right” and said “There were no facts or information to support a reasonable suspicion that there were offers or payments to defendants” or that Postmus and Biane had “agreed to accept payment in exchange for their votes” at that time. Thus, Smith gave the prosecution leave to amend the indictment with regard to 12 of the counts he had earlier thrown out by stating more clearly that both law enforcement and county officials, other than the accused, were unaware of the alleged bribery scheme until November 2008.
The motion to dismiss the charges based on statute of limitations grounds completed, Smith then moved on to the remaining motions to dismiss, the grounds for which included lack of probable cause, jury misinstruction, prosecutorial misconduct in having raided the defense camp and seizing privileged materials crucial to the defense, along with prosecutorial and investigator misconduct in having made misrepresentations to obtain search warrants and hiding information about a witness from the grand jury. During the hearings on July 28, 29 and 30, the defense, led by Stephen Larson and Mary Andrues, representing Burum; David Goldstein, representing Biane; Raj Maline, representing Erwin; and Paul Grech, representing Kirk; remained aggressive, overshadowing if not entirely overwhelming the prosecution team of supervising deputy California Attorney General Melissa Mandel and San Bernardino County deputy district attorneys Michael Abney, Lewis Cope and Reza Sadeghi.
When the hearings resumed on Wednesday, August 6, however, the complexion of the case dramatically changed, as the bulk of rulings Smith made, with a few exceptions, strongly favored the prosecution.
In what was the most significant victory for the prosecution, Smith ruled that the grand jury’s indictment of Burum for aiding and abetting in Postmus’ and Biane’s and Kirk’s receipt of bribes was indeed based on sufficient evidence.
Smith said that there was evidence Burum used “threats and intimidation to get them to accept” the bribes he provided. “Threatening to expose someone has a drug problem is not a crime,” Smith said. “Threatening to expose someone’s sexual orientation or life style is not a crime.” But there was evidence Burum, working in concert with Erwin, had gone beyond that, the judge said. The damaging information about Postmus and Biane was withheld, Smith said, to induce them to take the bribes and vote for the settlement. And there was evidence, Smith said, that “Mr. Burum is the one who suggested a sophisticated plan to hide the evidence by creating PACS [political action committees] the board members would secretly control.” Noting that the money provided to the PACS was “declared as a contribution by Mr. Burum and appropriately declared as a contribution received by the PAC [so] there would be no trace of any of that going to the board members,” Smith said, “the court finds that kind of plan to hide the bribes after they were received… is additional action beyond providing the bribe that aids and abets the receiving of the bribe.” Burum, Smith said was involved in “devising a plan” so the money could be delivered to those being bribed “without it being discovered. That is additional conduct that aids and abets the person in receiving the bribe. The court concludes that for those reasons the evidence before the grand jury is sufficient to support the finding of probable cause that Mr. Burum aided Mr. Postmus, Mr. Biane and Mr. Kirk in accepting the bribes.”
Likewise, Smith ruled, the evidence showed Erwin was involved in aiding and abetting Postmus and Biane receiving bribes.
Smith did rule that contributions to the political action committees cannot be considered income to the founders of the PACS or those in control of them, even if the contributions are intended as or are in fact bribes. Consequently, Smith dismissed perjury and tax fraud charges against Erwin, Biane and Kirk.
Smith, as he gave previous indication, on August 6 also dismissed conflict-of-interest charges against Burum and Erwin, reasoning that Burum was never a public official and Erwin was not a public official at the time of the alleged crimes.
Smith. however, deviated from the direction he appeared to be leaning during the closing days of July with regard to charges of misappropriation of public funds against all four defendants. He previously appeared to be persuaded by defense arguments that those charges should be dropped. On August 6, Smith acknowledged that the actions of the defendants did not in any fashion fall under two theories of how the statute relating to misappropriation of public funds – Penal Code Section 424 – applies. In a somewhat tortuous exposition, however, he said the defendants’ actions fit under a third theory of what constitutes misappropriation of public funds. Smith said  that though the grand jury had not been instructed directly with regard to this, the instructions on other charges relating to the action that constituted the misappropriation of public funds sufficed in giving the grand jurors an understanding of the issue to allow them to issue the indictment including the 424 charge.
Essentially, Smith said, the quid pro quo arrangement involving the payments into the political action committees in exchange for the vote to approve the $102 million settlement extended into being a misappropriation of public funds. “The bribe was a misappropriation of public funds because a portion of the appropriation was coming back to the board. It cannot be argued that they did not know the money coming back to them was not a violation of the law.”
Smith responded to the slightly different circumstances pertaining to Kirk with regard to the misappropriation of public funds charges, saying,  “Mr. Kirk used his influence. He did have a financial interest in the outcome of the vote. Supervisor Ovitt  testified before the grand jury that Mr. Kirk did not influence his vote, but there was evidence considered by the grand jury that Mr. Kirk did take steps to influence Mr. Ovitt and took steps to ensure the settlement occurred.”
Smith denied the defense motion to dismiss the misappropriation of public funds charges against all four defendants.
Smith also ruled on the defense motion to dismiss the case based on prosecutorial and investigative misconduct as pertained to what Burum’s attorneys, Stephen Larson and Mary Andrues, termed an “unconstitutional” raid on the defense camp. In question was the manner in which a search warrant prosecutors had obtained for files at the office of the Thomas Dale & Associates private investigation firm was executed.
Larson, in an effort to obtain information about continuing drug use on the part of Bill Postmus, hired Thomas Dale & Associates to carry out surveillance of Postmus. Thomas Dale & Associates contracted with another investigator, Theresa Speer at Alabama-based Lookout Resources in 2011, to assist in tracking Postmus. Subsequently, Postmus learned that someone had “hacked,” i.e. electronically accessed, his cell phone. He informed investigators with the district attorney’s office and they traced the hacking to Speer. Investigators approached Speer at her residence in Fairhope, Alabama and learned from her that she had been commissioned to surveil Postmus by Thomas Dale & Associates,
On January 31, 2013 investigators served a search warrant at the Thomas Dale & Associates office in El Segundo after having obtained a warrant. Because of the possibility that in the course of the search the investigators would come across confidential and privileged information relating to Burum’s legal defense, a special master was appointed to conduct the review of the files to be seized. On July 30, Andrues in court had played for Smith a portion of the security video taken on January 31, 2013 at the Thomas Dale & Associates office, depicting investigators and deputy district attorney Reza Sadeghi  rifling through files without the oversight of the special master, Brian Collins, who was in another room. This contradicted assertions by Sadeghi that neither prosecutors nor their investigators had examined the defense team’s potentially privileged material.
In his ruling on that matter, Smith said that “The search  at the TDA office was serving a legitimate government interest and it was lawful in its execution. They were investigating a crime of the cell phone being hacked. It is absolutely clear to me all those investigators were screening that information so they could see who hired Theresa Speers. Their only interest was billing documents as to who had hired TVA and Lookout Resources, Theresa Speers’ business. Once they determined it went to that issue, they sealed it and it went to the special master. There is no indication they took notes or looked at the contents of the files. There was no intent to harm the defendants or to gain any unfair advantage to gain any privileged information.”
He rejected the defense motion to dismiss the charges, finding there had been “no harm or prejudice to the defendant.”
Smith also rejected a second defense motion for dismissal based upon assertions that in obtaining a search warrant based upon statements from Adam Aleman, an assistant county assessor who had previously worked as a field representative in Postmus’ supervisorial office, investigators did not disclose on the affidavit for the search warrant that Aleman had entered into a plea arrangement on criminal charges relating to corrupt practices in his official capacity, along with allegations that  prosecutors did not properly instruct the Grand Jury on the extent of witness Postmus’ drug addiction.
Andrues told the court that during the course of his interviews with investigators, Postmus indicated he could not remember or otherwise was having trouble with his recollection  205 times. “His memory was shaped and manipulated by drug use and suggestive questioning and the passage of time,” Andrues told Smith.
Andrues presented testimony provided by district attorney’s office investigator Hollis Randles, who interrogated Postmus, culled from another court case in which Randles acknowledged Postmus’ drug addiction and steady use of methamphetamine.  In that testimony, Randles said users of methamphetamine tend to be “erratic and paranoid” and the use of the drug “can make them delusional.” Randles admitted during questioning in that case that an individual’s “credibility under the influence of drugs is questionable” and a factor that he considers in weighing the value of the evidence provided by that witness.
Larson and Andrues maintained Postmus was continuing to use drugs during his cooperation with the prosecution, during his grand jury testimony and thereafter. This left him in a highly suggestive state wherein he was  coached and coerced by investigators into telling them what they wanted to hear. Andrues suggested he was tailoring his statements to be able to get leniency when he is sentenced for the crimes he has entered guilty pleas to.
Deputy Attorney General Melissa Mandel said the defense’s contention that the district attorney’s office had dropped drug related charges against Postmus in return for his testimony “didn’t happen.”
Smith said the omission with regard to Aleman’s legal status on the affidavit did not rise to the level of misconduct by investigators or prosecutors that would justify dropping the charges against the defendants and that the defense could move to suppress at trial whatever information or evidence was obtained as a result of the search.
Smith rejected the motion to dismiss the case based on the grounds that Postmus’ drug use made him an unreliable witness and that the grand jury was given incomplete information about his drug use.  The judge said the prosecution had erred in some regards but there was no evidence of misconduct or the  withholding from the Grand Jury of any exculpatory evidence that would have resulted in the defendants not being indicted.
Smith also refused to throw out tax and perjury charges against Erwin that were based upon his not having properly reported having received gifts from Burum, including a Rolex watch and airfare and accommodations during a trip to New York and Washington, D.C., as well as a forgery count based on his having allegedly forged a check to himself from his own PAC.
“It’s a  little ironic the district attorney is alleging he controlled the PAC and yet committed forgery to get money out of the PAC,” Smith said. Despite that contradiction, Smith said the theory Erwin was legally charged under was “technically” correct because there was “testimony before the  grand jury that at the time he was not a director [of the PAC] and did not have signatory authority over that particular account so he could not have written a check on that account and signed it himself.”
The court did not bring to a conclusion a motion by the prosecution to disqualify Larson, Andrues and their entire law firm, Arent Fox, from continuing to represent Burum, based on Arent Fox’s recent hiring of former assistant U.S. Attorney Jerry Behnke, who previously oversaw the federal investigation of the Colonies case.  Behnke supervised the FBI’s Riverside office and was part of a task force that included the San Bernardino County District Attorney’s Office and the state Attorney General’s Office during the federal investigation into the Colonies matter. Ultimately, the U.S. Attorney’s Office decided against pursuing a case against any of the Colonies defendants.
Arent Fox hired Behnke in May. Larson is Behnke’s supervisor in the Los Angeles office of Arent Fox. Larson said in court papers that a fire wall has been constructed between Behnke and the Colonies case.
The matter was discussed between the judge, prosecutors and defense attorneys and the defendants in chambers on August 6, after which point Smith went on the record to state that an effort was ongoing to have the attorneys  resolve the matter without an evidentiary hearing.
Smith gave prosecutors until today, Friday August 8, to amend the indictment. He set the next court date for August. 25, when the defendants are to be arraigned on that amended indictment.