By Mark Gutglueck
San Bernardino County and its taxpayers are facing untold legal liability as a consequence of the neglect, misfeasance and malfeasance of employees, supervisors and both midlevel and senior managers in the county’s child and family services department in the face of both indicators and overwhelming evidence that children monitored by the department were being abused by their biological or foster parents.
Efforts by the department’s head as well as the county’s chief executive officer and members of the district attorney’s office to ignore evidence of the abuse, short circuit actions to address it or investigations concerning it or bury the matter to prevent the abuse from being documented have exacerbated the situation and increased the county’s potential liability.
It was revealed this week that the county more than six months ago devised a secret strategy to utilize the services of a high-powered attorney to conduct a fact-finding effort that will allow it to prophylactize the county or at least its highest ranking officials by ushering all information relating to the burgeoning scandal under the umbrella of attorney-client privilege. In this way, potential plaintiffs and their lawyers will encounter a virtual block wall in attempting to obtain information about or document any specific cases of abuse, let alone determine the breadth and scope of what has occurred.
As early as 2011, employees within the San Bernardino County Children and Family Services Department encountered resistance up the chain of command when they reported or otherwise took action with regard to their perception that both biological parents as well as foster parents who were in some fashion being monitored by the department were abusing their children or wards.
In some of the cases the indications of abuse were strong, indeed unmistakable. In others, the indicators were less clear cut and subject to interpretation. In dozens of cases, the Sentinel is informed, reports were generated conveying the suspicion that children were being subjected to physical, emotional, psychological or sexual abuse at the hands of their natural parents or by foster parents to whom children had already been entrusted or who had temporary guardianship of children who were in the process of being placed for adoption. In several cases, when those children and family services department employees’ concerns were not adequately addressed in-house, they attempted to have the matter taken up by other responsible authorities.
Complicating the issue were the confidentiality restrictions imposed on the case files, making it difficult for those with concerns to bring the issues out into the open or to the attention of others outside the department for some means of resolution. In fact, seeking to go outside the chain of command under county policy was, and still is, considered to be insubordination and grounds for termination.
It is not clear, precisely, why higher-ups in the children and family services department were initially unwilling to forthrightly deal with the abuse and the abuse allegations. It may have been because there had been abuse of children that predated the abuse noted by the workers in the 2011-2013 time frame, such that department administrators were concerned that any documentation of the abuse phenomenon would potentially assist those seeking to lodge civil cases against the county; perhaps the administrators were concerned that the demonstration of such instances of abuse would upset their superiors up the chain of command, including children and family services supervisor Kristine Burgamy; Teri Self, a deputy director of children and family services; deputy children and family services director Nickola Hackett, Christa Banton, a supervising social services practitioner in the department; the assistant director of children and family services Jonathan Byers; the director of children and family services Marlene Hagen; Hagan’s predecessor’s Deanna Mordecai; Linda Haugan, the director of the county’s human services division, under which the children and family services division is administered; and Greg Devereaux, the county’s chief executive officer.
As mandated reporters, children and family services employs are legally obliged to inform their superiors or responsible authorities if they see or suspect abuse of minors. Once having done so, the employees were out from underneath any further legal requirement. Nevertheless, unless they could actually document they had made the report, they were subject to legal reprisal if at some future point it were to be alleged they had not lived up to the reporting mandate. For that reason, as well as because some were genuinely concerned that those above them had not acted appropriately with regard to their notation of the abuse, some children and family services case workers took it upon themselves to go out of channel and report what they had seen, either to other governmental entities with investigative or enforcement authority, or elsewhere, including elements of the press. In doing so, these workers risked the wrath of their superiors, discipline and firing.
One agency within the government structure the abuse was reported to was the San Bernardino County Grand Jury. Nevertheless, the grand jury did not investigate the issue with alacrity. In San Bernardino County, the grand jury’s annual session runs in accordance with the governmental fiscal year, from July 1 to June 30. During the 2014-15 term information was provided to the grand jury relating to the circumstance pertaining to the abuse of children under the children and family services department’s supervision. As the 2014-15 grand jury term was drawing to a close, the grand jury, functioning under its then-advisor, deputy district attorney Charles Umeda, dragged its feet on opening an official inquiry into the matter. Thus, the 2014-15 Grand Jury in its final report delivered on June 30, 2015 made no reference to child abuse issues.
Reportedly, the grand jury was under considerable pressure to simply let the issue die, and with the changeover in the grand jury’s personnel in which but a few of those who had served in 2014-15 were slated to return in 2015-16, the likelihood the matter would be buried was real.
At the end of July 2015, Umeda was elevated to the Superior Court by Governor Jerry Brown. To replace Umeda, district attorney Mike Ramos selected deputy district attorney Michael Dauber to serve as grand jury adviser. With the departure of Umeda, some of those pushing for an aggressive investigation into the abuse allegations were heartened. A member of the 2014-15 Grand Jury was James Wiebeld, who had retired as a sheriff’s deputy after a 30-year career in law enforcement. Wiebeld was a holdover to the 2015-16 Grand Jury, which after its ranks filled out, elected him sergeant-at-arms. Wiebeld sought to have the grand jury maintain its focus on several issues that had been taken up by the 2014-15 Grand Jury, which had in his view not been sufficiently resolved or reported in the 2014-15 Grand Jury’s report. Among those issues was that pertaining to the abuse of children under the purview of San Bernardino County Children and Family Services. But if Wiebeld and others felt that Umeda had been unenergetic or passive in pursuing the abuse investigation, they would find his replacement, Dauber, actively resistant or even outright hostile to such an investigation.
What Wiebeld and other grand jurors encountered, the Sentinel has been told, at first consisted of Dauber’s subtle effort, not unlike that of Umeda, to steer the grand jury away from the subject. When grand jurors persisted, Dauber used progressively firmer and eventually much harsher methods to discourage the investigation, ultimately resulting in the blunting of the investigation’s focus and its shift away from the nonfeasance, misfeasance and malfeasance within the children and family services department that allowed the criminal abuse and even deaths of some of the children at the hands of their parents and guardians to take place.
The failure of children and family services to step in and stem the abuse was of moment with higher ranking elements in the county because attorneys had already been in contact with the families of some of the abused children and had initiated cases on behalf of those children and their families or were in the process of doing so.
To district attorney Mike Ramos, who has striven to remain on favorable terms with both the county’s political establishment and its senior administrators, and to Dauber, who is answerable to Ramos, Wiebeld’s established status as a grand jury leader able to influence at least a handful of his colleagues on the panel heightened concern that they might be faced with a rogue grand jury that would take the focus on abused and dead children in a direction that could prove monetarily costly for the county. At some level, Ramos, Dauber and other county officials, including Devereaux, Haugan, Hagan and Hagan’s predecessors, were aware that the media was becoming involved and they suspected employees within the children and family services department had approached elements of the local media. They remained confident, nonetheless, that the matter could be contained, that all media outlets could be controlled and, if not, the public would not react adversely to what would only be some momentary and limited negative coverage, that the grand jury could be reined in and that the recalcitrant, disobedient and insubordinate employees could be disciplined into silence and, if not, fired. Any who remained problematic after being fired could be, they calculated, prosecuted for having violated confidentially, and thus discredited entirely. That confidence was shattered when, on August 27, 2015, Fox 11 News in Los Angeles reported that “children who were under the supervision of the San Bernardino County Department of Children and Family Services … were being abused, tortured, and killed.” According to that report, in certain cases, children had been entrusted to foster parents who had previously been caught abusing children living in their homes. In one of those cases, according to Fox 11, a child had died at the hand of an abusive foster parent after the San Bernardino County Department of Children and Family Services was made aware of the sadistic nature of that foster parent. The Fox 11 News report made reference to an ongoing grand jury investigation.
The following day, Friday August 28, a special meeting was convened at the county administrative building which was attended by county executive officer Greg Devereaux, district attorney Mike Ramos, children and family services director Marlene Hagen, and a handful of other high level county officials. The primary topic discussed, the Sentinel was told by a reliable source, was the formulation of a cover story and talking points calculated to defuse the issue of negligence in the San Bernardino County Children and Family Services Department which led to the deaths of children in the foster parent system it oversaw.
The county, through its official spokesman, David Wert, has denied that Devereaux spoke to the district attorney on August 28 or that he had ever spoken to Ramos about children and family services or grand jury matters.
Forthwith, however, county officials in August and September 2015 moved to identify those responsible for the leaks that resulted in the foster child deaths becoming public and sought to squelch any further release of information. Grand jurors, whose investigations and proceedings are considered to be confidential and are informed of such and sworn to secrecy when a grand jury is impaneled, were threatened with arrest and prosecution if they violated that oath.
In September 2015, attorney Valerie Ross filed lawsuits against the county on behalf of former social workers Eric Bahra and Mary Anna Whitehall. According to Bahra’s suit, while working as a social services practitioner for the children and family services department in 2013 he “made the discovery that the system lacked safeguards which in practice allowed social workers to subject children to abuse by permitting them to place children in foster homes with known abusers.”
According to the suit, Bahra “made the discovery by doing a simple but novel search of the department of children and family services child welfare system’s database. In that short time plaintiff discovered at least 19 separate instances where social workers had placed children in the foster home of a known abuser.”
According to the suit, Bahra on July 11, 2013 was called upon to make an immediate response on a dead baby case in the City of San Bernardino. Bahra arrived at the home in the company of another social worker, Melissa Pena. In the home, Bahra found indications of what he believed to be methamphetamine on the premises. According to the suit Bahra “sought and obtained approval from the supervisor at the [children and family services] hotline to seek a detention warrant to remove the surviving siblings of the dead baby, all toddlers themselves. Subsequently, a judge of the Superior Court signed the warrant.” The four children were placed in two separate homes.
After that, according to the suit, the two foster mothers with whom the children had been placed “reported that when they had had a chance to examine the children they found what appeared to be ligature marks on the wrists and ankles of the children and burn marks and other injuries. Plaintiff wrote the allegations against the parents in the case in light of the reports of the foster mothers about the condition of the children. Plaintiff recommended that these children be permanently removed from their parents. The siblings were examined by the doctors at the Children’s Assessment Center and the injuries the foster mothers had observed were confirmed by these doctors. These children had ligature marks around their ankles and wrists [and] their bodies were scarred with burn marks as if from a cigarette.”
Under children and family services protocol, when a child is or children are removed from a home, the matter is reviewed by what is termed a jurisdictional disposition officer, referred to as a J/D writer, to determine if the separation of the child from his or her, or children from their, parents is justified.
According to Bahra’s suit, in the case of the four siblings removed from the San Bernardino home where the dead baby had been found on July 11, 2013, “The J/D writer confirmed the findings made in plaintiff’s report and herself recommended that these children should be permanently removed from their parents. When the matter came up for a hearing in dependency court before the presiding judge of the dependency court to determine the future placement of the surviving siblings, the J/D writer was removed from the case [by the children and family services department] and told not to discuss the case further. Then it was learned that the department told the court that plaintiff had lied on the report and that all of the evidence which would include the children’s assessment center doctors reports should be sealed and a new trial granted before a judge who had not read plaintiff’s report. The department was now recommending that all the children be returned to the parents. Plaintiff and the social worker who had accompanied him on the investigation and the J/D writer then in a formal written pleading informed that court that plaintiff had not lied. Counsel for the minors then conducted her own investigation and found that the department had tampered with the police photos and withheld the part of the police report prepared by the detective assigned to the investigation of the death of the baby. Minors counsel’s investigation confirmed the veracity of plaintiff s reports. Minors counsel also agreed with the recommendations to permanently remove the siblings. Plaintiff and the two social workers brought the motion before the court to inform the court that the department in moving for a new trial was attempting to manipulate the court into making findings that would bolster its case against plaintiff.”
According to the suit, “The social worker who had accompanied plaintiff on the investigation on July 11, 2013 had left the employ of the county by the time she joined in the motion. The J/D writer was still employed by the department. Within six days following this social worker coming forward to report the wrongdoing of the department to the court she was put on administrative leave. No charges were brought against this social worker, however; she was just left on administrative leave. After two months on administrative leave this social worker felt forced to resign in protest of the retaliatory treatment.”
Bahra’s suit suggests there may have been other foster parents who were not adequately vetted and there may have been other incidents of abuse that went unaddressed by the children and family services department.
“In June 2013 plaintiff was assigned to a joint investigation by the department of children’s services and the sheriff’s department concerning sexual abuse of children by a
foster parent,” according to the suit. “Two children disclosed that the foster father had sexually abused them and took naked photos of them which he then placed in an album containing many photos of other naked children. The detective assigned for the sheriff’s department asked plaintiff to provide further information regarding other children who had been placed in the foster home in the past. Supervisors in the CFS office then produced a list of children who had been placed in the foster home going back to 2001. Social workers had placed 39 children in the home since 2001 but plaintiff could find no prior complaints about the home. Plaintiff’s education, training and experience led him to believe that finding no prior complaints was unusual in the circumstance of allegations of sexual abuse, particularly in this case where two children disclosed that they had been in the home for years and had been sexually abused the entire time and that they had seen the foster father’s album containing nude photographs of many children. It was then that plaintiff made the discovery about the county s child welfare database. That database warehouses all case information and it is the database utilized by all county social workers in all aspects of their work including the placement of children in foster homes. Plaintiff discovered that this database lacks a system of cross checking, with the result that one social worker can substantiate abuse by a foster parent and remove the child but that another social can come right behind and place another child in the home with a foster parent determined to be an abuser. Plaintiff discovered that this revolving door had resulted time and time again with children being placed at risk in foster homes with known abusers, evidencing a total, complete and continuing breakdown of the very system mandated to protect children. The child who was the initial subject of the joint CFS sheriff’s department investigation into sexual abuse by her foster father was the 57th child placed in that home following actual decertification of the foster home prior to 2001. Plaintiff was terminated in an effort to cover up this system failure. The system failure was turned into malfeasance by the defendants to cover up and discredit plaintiff.”
In her lawsuit, Mary Anna Whitehall identifies herself as the J/D writer who was initially assigned to review the July 11, 2013 dead baby case that Bahra handled. According to the suit, Whitehall was in possession of the police photos taken at the scene of the death. “In regard to this dead baby case, Nickola Hackett, a CFS deputy director who was the head of the CFS Victorville office out of which plaintiff [Whitehall] worked, instructed plaintiff to withhold a number of police photos and give to the court and counsel only those police photos deputy director Hackett selected,” the suit states. “Some of these photos were then altered by deputy director Hackett by printing only part of a photo or blocking out part of the photo. The conduct of withholding some photos and altering others was the first unusual thing that struck plaintiff about this dead baby case.”
According to Whitehall’s suit, in a crisis of conscience, she “took the CD disk of all of the photos obtained from the police and quietly gave it to deputy county counsel Steve Bass who was one of the deputy county counsel who had been involved with the dead baby case.” The suit continues, “Shortly after plaintiff [Whitehall] delivered the CD of all the photos to the deputy county counsel, plaintiff was removed from the case and another J/D writer was assigned. [Whitehall] was instructed not to discuss the case with the new J/D writer.”
According to Whitehall’s suit, there was evidence to indicate that methamphetamine was present in the home in which the dead baby and the surviving siblings were found and this was borne out by the social worker who had accompanied Bahra into the house, Melissa Pena. Nevertheless, higher-ups in the department of family services were alleging that Bahra had falsified or exaggerated the presence of methamphetamine near the death scene and “wanted to give the children back to the parents. But plaintiff [Whitehall] assumed that the children would be protected and not returned to the parents because the weight of the evidence before the court was against returning the children. Then plaintiff learned that the department had moved for a new trial, that a new trial had been granted, that a new judge was assigned and that all the evidence that had been before the court would be marked ‘Confidential,’ with instruction that the new judge was not to view the prior evidence. Plaintiff also learned that the department told the court that a new trial was allegedly necessary because social worker Eric Bahra had lied and exaggerated on his detention report and the whole case had been tainted. Defendants knew those claims to be false at the time they were made. “
Whitehall’s suit continues, “Plaintiff now knew that she must act to protect the four surviving siblings. So plaintiff and social workers Bahra and Pena all came together to inform the juvenile court that the department had perpetrated a fraud upon the court by telling the court that Eric Bahra lied and exaggerated on his detention report when, in fact, the evidence showed that Eric Bahra had not lied nor exaggerated. Plaintiff also then informed the court that the head of the Victorville office had instructed her to withhold evidence from the court and had instructed her to instead provide altered photos to the court and counsel.”
In the aftermath of the Fox 11 reports detailing the abuse and deaths of children in San Bernardino County’s foster parenting system and the filing of the Bahra and Whitehall lawsuits, the children and family services department and the county’s administration was thrown into full crisis mode. Wiebeld, the grand jury’s sergeant-at-arms, was suspected of being Fox 11’s source for its August 27 report and subsequent follow-ups. District attorney Mike Ramos accompanied the grand jury’s advisor, deputy district attorney Mike Dauber, and a single member of the grand jury to the office of Marsha Slough, who was then the presiding judge of the San Bernardino County Superior Court. Wiebeld, Slough was told, was proving disruptive. Slough subsequently summoned Wiebeld to her office. She informed him that he was an at-will volunteer and that his services were no longer needed. After Wiebeld was bounced from the panel, Dauber, with some prevarication, told the remaining members of the grand jury that Wiebeld had voluntarily resigned his commission as a grand juror for personal reasons.
Before the grand jury’s term ended on June 30, 2016, six other members of the grand jury who had been sworn in on July 1, 2015 to serve a full year – Robert Turley, Benjamin Royland, Rebecca Fults, Allen Burt, Paul Gorsky, Douglas Kinzle – left, either voluntarily or as a result of having been shown the door. The mass exodus from the grand jury itself was telling: No grand jury in San Bernardino County going back to the 1970s had suffered anywhere approaching that number of defections. At last, when the grand jury delivered its final report for 2015-16, a puerile chapter with regard to the children and family services department was included in it. In a low key account of ground the grand jury had covered in an investigation which reflected that the grand jurors had merely gone through the motions of making an inquiry, it was noted that social workers with the department did not make a practice of “recording interviews with clients” because “Children and family services management was uniformly opposed to the idea of tape recording client interviews… their stated reason for this opposition [being] confidentiality and possible intimidation of the client.” The report stated that “interviews with CFS [Child and Family Services] management revealed that social workers who had observed a parent under the influence did ‘not necessarily’ notify law enforcement or remove the child from the home.”
The report further noted “areas of concern about the relationship between CFS and law enforcement agencies. Interviews with law enforcement officers disclosed areas that potentially hindered investigations. Law enforcement officers disclosed, and CFS management confirmed, that CFS reports requested by law enforcement are first sent to county counsel [i.e., the county’s in-house lawyers] for review prior to being released. Law enforcement officers stated that CFS social workers are reluctant to remove abused and neglected children from their homes. Officers further stated that CFS does not always inform investigating officers of the location of a child, which causes delays in investigations.” The report also noted that law enforcement investigators “informed the grand jury that receiving redacted reports from Children and Family Services hinders their investigations” and prevents law enforcement officers from making so-called pretext calls to parents or guardians suspected of sexually abusing children.
The report stated that there were delays in children and family services’ response to its request for information, including one in which it took the department “a period of seven months and 23 days from the date the request was submitted” to provide the information sought.
The report stated, “In interviews with county counsel employees it was stated that CFS is focused on family unification, while county counsel would prefer the safety of the child to supersede family unification. Additionally it was reported by law enforcement officers that CFS is interested in keeping families together while law enforcement seeks to arrest perpetrators of child abuse.”
The report states that there was a 15.5 percent rate of employee turnover in the child and family services department in 2013-14 and a 23.8 percent employee turnover in 2014-15, such that social workers are “overwhelmed” by heavy caseloads.
In the report there is no mention of the deaths of any children who fell under the rubric of the children and family services department system. Nor did the report make reference to reports received by the grand jury which indicated that social workers who had made an effort to bring incidents of the abuse of children to light had been actively discouraged from doing so.
If the parents or representative of the children in the San Bernardino County foster care system who were subjected to abuse or loss of life were to come forward, this would potentially result in an avalanche of lawsuits that would prove financially devastating for the county.
A week prior to the release of the grand jury’s final 2015-16 report, after the scandal pertaining to the abuse of children lodged in San Bernardino County’s foster care system had been percolating for months, the California Attorney General’s Office announced it was looking into allegations of failure to act with regard to the abuse of children or criminal negligence by the Department of Children and Family Services.
Unlike San Bernardino County Deputy District Attorney Michael Dauber, the grand jury adviser who last year threatened individuals with arrest if they were to disclose nonfeasance or misfeasance and malfeasance by Children and Family Services Department employees, California Attorney General Kamala Harris said publicly to San Bernardino County residents, “If you have any information about those agencies falling short of their duty, much less harming children, tell us because we are concerned and we’re paying attention and we’re prepared to prosecute.”
This week, more than three months after the launching of that investigation, it was revealed that the county had quietly retained John Hueston, a private practice attorney perhaps most noteworthy for his stint as a member of the Department of Justice’s Enron Task Force led by U.S. Attorney Sean Berkowitz and Kathryn Ruemmler which successfully prosecuted Kenneth Lay and Jeffrey Skilling. It was revealed that the legal rumblings with regard to the situation in the county’s child and family services department were so ominous that Hueston was clandestinely hired in April, more than two months before Harris announced her office’s investigation. In the six months since he was hired, Hueston has billed the county for more than $179,000.
County officials, including CEO Greg Devereaux and county counsel Jean-Rene Basle wanted to keep Hueston’s hiring secret. That, however, was complicated by a county regulation requiring that the board of supervisors approve expenditures or purchase orders for amounts in excess of $100,000 per fiscal year. The officials were able to get around that by applying Section 12.1908 of the San Bernardino County Code which allows county counsel to retain outside counsel on a purchase order for a particular matter up to $100,000 per fiscal year. Thus, non-competitive purchase orders in the amount of $100,000 each were issued for Hueston’s services in fiscal year 2015-2016 (Purchase Order No. 168536) and fiscal year 2016 2017 (Purchase Order No. 178786).
With billing from Hueston’s firm, Hueston Hennigan, now on the verge of exceeding $200,000, the county was obliged to disclose that he is working on behalf of the county so that another purchase order by the county board of supervisors to avoid any interruption of his work.
There were both subtle and not-so-subtle differences in how the nature of Hueston’s was described.
Some county officials did not blanch at the reference to Hueston as a defense attorney. Others softened this somewhat, saying he was “to help defend county officials against an investigation by the California Attorney General’s Office into alleged illegal practices at the department of children and family services.”
In their co-authored report to the board of supervisors, county counsel Jean-Rene Basle and children and family services director Marlene Hagan softened the description further, saying the “contract with Hueston Hennigan LLP [is for] for continuing legal services in connection with an ongoing investigation by the State of California Attorney General’s Office of the County’s Division of Children and Family Services.”
County officials and even Hueston suggested to the Sentinel that it is somewhat gauche to refer to him as the county’s “defense attorney.”
Yet, based upon information obtained by the Sentinel with regard to the nature of the allegations involving the children and family services department and Hueston’s work on its behalf, such a term appears to be an apt one. Along certain tangents, indeed, the legal strategy the county is formulating appears to be an aggressive and ruthless one. The Sentinel has learned, for example, that investigators connected with the Hueston Hennigan law firm are conducting an investigation intended to replicate – or exceed – that being conducted by the investigators with the California Attorney General’s Office. Once what those investigators have covered is reviewed by Hueston and the firm’s other attorneys, that information is deemed to be subject to attorney-client privilege, meaning it cannot be disclosed to the attorney general’s investigators or prosecutors unless the county waives that privilege. If the employees within the children and family services division can be deemed Hueston Hennigan’s clients, they may well be off limits to the attorney general’s investigators under the broad protection of attorney client privileged confidentiality. In this way the county could thwart the attorney general’s office’s investigation.
One factor in the county’s favor is that the attorney general’s office moved rather slowly in the San Bernardino County Children and Family Services Department investigation after it was underway, with investigators conducting few interviews of pertinent witnesses, participants or suspects. In this way, discernible facts suggest San Bernardino County has beaten the attorney general’s office to the punch with regard to assembling information that could prove crucial to the investigation. Whether information and facts gathered by the grand jury are provided to the attorney general’s office remains to be seen. One report received by the Sentinel which could not be earlier confirmed was that county officials knew of the attorney general’s investigation well in advance of Harris’s late June announcement, and that this had been the catalyst in retaining Hueston.
Hagan and Basle’s report to the board of supervisors disclosed that the investigation by the California Attorney General’s office predated by some four months Harris’s announcement of it. In that report, Hagan and Basle avoid the suggestion that the investigation is criminal in nature.
“In January 2016, the Bureau of Children’s Justice, a department of the Attorney General’s Office
(AG), initiated an investigation regarding alleged failures to comply with state laws by CFS [San Bernardino County Children and Family Services] regarding the provision of child welfare services,” according to Hagan and Basle’s report. “Due to the seriousness and systemic nature of the allegations made to the AG, the scope of the AG’s investigation is assessing and evaluating CFS policies and practices over a five-year period as well as all documentation prepared by CFS during that time period. After meeting with the AG’s representatives, the law firm of Hueston Hennigan LLP was retained to represent the county for purposes of the AG’s investigation. Hueston Hennigan was tasked with not only examining the county’s policies and practices, but conducting its own assessment of child welfare services provided by CFS relative to state law. This assessment will assist the county in cooperating with the AG to perform a thorough examination of child welfare services provided by CFS. Hueston Hennigan was retained for its expertise in handling Department of Justice investigations.”
Hueston told the Sentinel “I am assisting the county in representation and cooperating with the attorney general’s investigation and to make sure that investigation proceeds fairly.”
Hueston said this would consist of “assuring there is fair data and the proper experts working with the attorney general’s office to provide information on issues that have historically been a problem for the county and are now being addressed by the County of San Bernardino.”
As to the criminal elements of the case, Hueston said he had “no comment.” He then sought to diffuse the suggestion that the matter was riddled with issues that were criminal in nature or involved criminal negligence on the part of San Bernardino County employees. He suggested that the gist of the attorney general’s inquiry ran to reporting delays and other relatively benign procedural errors or glitches in policy and the administration of the department that were not endemic to San Bernardino County.
“Certainly there have been issues with timelines and reports that have been problematic for every county in the State of California, San Bernardino [County] included,” he conceded. “That has long been acknowledged by San Bernardino [County] and the county is addressing those issues, particularly in the last two years.”
When directly confronted with the litany of charges emanating from the already filed litigation by former child and family services employees and allegations that have surfaced during and in the wake of the grand jury investigation, Hueston was either genuinely, or feigned being, taken aback. “Goodness,” he expletived.
He denied that his work for the county would in any way inhibit the collection of information of either a criminal or civil nature and that he would be assisting the county in defending current lawsuits brought against the county by former children and family services department employees or pending lawsuits by those litigants’ colleagues or former colleagues, and/or children overseen, or the families of children overseen, by child and family services who were repeatedly placed into abusive foster homes in which they died or were severely maltreated.
“My role has nothing to do with any other collateral litigation pursued by private sector plaintiffs, period,” Hueston said.
Asked if he and the county were involved in a strategy of creating a broad umbrella of attorney-client confidentiality that would render it difficult for investigators for both criminal prosecutors and plaintiffs’ attorneys to obtain information about children and family services operations, Hueston said, “I am not prepared at this time to talk about what we plan to do, other than cooperate with the attorney general as the investigation proceeds to ensure there is a fair balance. We are doing this so the attorney general can consider all relevant material as well as the improvements made by the County of San Bernardino. The course of this investigation is set by the attorney general. My goal is to assist them in meeting that.”
Hueston said that calling him a defense attorney would be a “misrepresentation. I have not been hired in that capacity. I am not engaged in criminal defense. That is not per the scope of my engagement. This is not a criminal investigation by the attorney general’s office.”
For both the county and Hueston, a major difficulty arises out of the public’s perception. This is not the first time Hueston represented San Bernardino County. In 2009, he was hired by the county to carry out an investigation into then-assessor Bill Postmus and put together the county’s case for removing him from office. That case hinged on the dual issues of Postmus’s use of his position as assessor for partisan purposes and his drug use. Ultimately, Hueston delivered a report that was in some measure credited with convincing Postmus to resign voluntarily. Nevertheless, in drafting, framing and delivering that report, Hueston made a case against Postmus while simultaneously protecting members of the board of supervisors and other high ranking county officials who had hired him and had been in league with Postmus during the perpetration of his depredations. At least three of the high ranking county officials still in elected or appointed office in 2009 were also implicated in much of the wrongdoing Postmus had engaged in. Their activities and culpabilities were not mentioned in Hueston’s report.
One example is that Postmus, prior to being assessor, was a member of the board of supervisors, the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Party. Postmus’s chief of staff while he was supervisor was Brad Mitzelfelt. While he was chairman of the board of supervisors and chairman of the county GOP, his board colleague and political ally Paul Biane was vice chair of both the board of supervisors and the San Bernardino County Republican Party. In 2006, while he was running for assessor as an incumbent supervisor, Postmus went missing for nearly three months. His absence was particularly baffling and problematic in that several emergencies – including fires – dogged the First District, of which Postmus was supervisor, that summer. His absence from the county in the midst of those disasters and during his political campaign went beyond being simply mysterious to downright suspicious. Suspected by some segments of the public at that time was that Postmus had been rendered non compos mentis as a consequence of heavy drug use. Such reports were at odds with Postmus’s rock-ribbed conservative Republican image. At that point, Postmus benefited from the false denials. Mitzelfelt, Biane and the county’s then-administrative officer, Mark Uffer, orchestrated, with the assistance of other county officials and employees, a series of cover stories as part of a strategy to prevent the public from learning that Postmus was indeed under the onus of daily methamphetamine use, besotted and addled to the point where he could not risk being seen in public on pain of being exposed and losing the assessor’s election. Subsequent events, including Hueston’s investigation, would reveal Postmus’s profligate drug use. Yet Hueston’s report omitted the roles that Mitzelfelt, Biane, Uffer and other county officials played in allowing Postmus to not only remain in his role as board of supervisors chairman while he was under the throes of drug addiction but to accede to the elected position of county assessor, the county’s highest tax imposition authority. Mitzelfelt and Biane were members of the board of supervisors that voted to hire Hueston; it was upon Uffer’s recommendation that the board had considered hiring him.
Another example of Hueston allowing his work product to be swayed by loyalty to those who hired him was that part of the case he put together against Postmus with regard to the partisan use of the assessor’s office. That report focused primarily on the manner in which Postmus and his assistant assessor, 22-year-old Adam Aleman, along with the office’s taxpayer advocate Gregory Eyler, the office’s local municipal liaison Rex Gutierrez and assessor’s office consultant Anthony Riley, used the assessor’s office’s facilities to engage in politicking and campaigning, in most cases on behalf of Republican candidates or issues, on county time. Hueston’s report on Postmus ignored a much larger, deeper and broader scandal in the assessor’s office relating to Postmus having used his authority to reduce the property taxes of his political allies, supporters, campaign donors, friends and associates. A number of those who had benefited by this corruption of assessor’s office were the then-current political and administrative leaders of the county, their associates or major supporters or campaign donors of elected officials who yet remained in office.
By early 2009, when Hueston was brought in as a hired gun to subdue Postmus, the embattled assessor was already self-destructing, as occurred in January of that year when investigators with the district attorney’s office, armed with a warrant to search his Rancho Cucamonga house for evidence of the misuse of county facilities and equipment for political purposes, found street narcotics and paraphernalia. Shortly thereafter, he would descend further into disgrace and untenability when he came to court bedraggled and under the influence of methamphetamine, leading to a search of his vehicle and the discovery of more drugs and more paraphernalia. Removing Postmus from office, or convincing him to remove himself, was not a challenging assignment and Hueston did not shrink from it. Where he did back down, though, was in ensuring those who participated Postmus in his depredations and had enabled him in carrying them out were also held accountable. It is not lost on observers that those Hueston excused from accountability were the county powerful administrative and political elite.
Many see in Hueston’s past efforts to protect San Bernardino County’s powers-that-be a parallel to his current legal assignment with the county, which appears to aimed at criminally absolving those who neglected the wellbeing of children under the watch of the children and family services division or covered that negligence up.
A major issue is the apparent effort by district attorney Mike Ramos and deputy district attorney Mike Dauber to obstruct the grand jury’s investigation into the circumstances within the children and family services department, including the false representations they made to then-presiding judge Marsha Slough to have James Wiebeld removed from the grand jury.
The Sentinel has learned that at one point in the summer of 2015, Dauber told attorney Valerie Ross that if her client testified before the grand jury her client would be arrested.
Dauber did not respond to any of several phone calls or a letter from the Sentinel seeking his version of events. He offered no response to questions as to whether his action had come at Ramos’s direction. Dauber declined to explain why he and Ramos had moved to have Wiebeld removed from the grand jury.
Hueston demurred at discussing whether Dauber and Ramos’s action would be an issue he intended to deal with in his representation of the county with regard to the California Attorney General’s Office’s investigation of San Bernardino County’s department of child and family services.
Hueston told the Sentinel there was no comparison of his work for the county with regard to Postmus and what he is doing in representing children and family services during the California Attorney General’s Office inquiry.
“There is no analogy between those situations at all,” he said. He suggested that there has been a major changeover at the top level of San Bernardino County government.
“It is a different reality today,” he said. “You have a whole different board of supervisors than back then.”
Hueston said he was initially retained by the county in 2009 to engage in a relatively limited inquiry, saying the board of supervisors and county administrative officer Mark Uffer wanted to find out “What has he [Postmus] done in terms of abuse of his office?”
Ultimately, he said, “They allowed me to expand quite a bit, including looking at some city council members [who at that point remained as Postmus’s political allies]. I went a lot further and the investigation was wider than anyone anticipated.”
Ultimately, however, Hueston conceded that in his function as a lawyer, “The clients call the shots.”
According to Basle and Hagan, the Hueston Hannigan attorneys working per the contract approved Tuesday will be paid at a rate of $575 per hour and paralegals will receive $235 per hour.
That Hueston is being paid at near the top tier of what law-yers are paid fueled speculation that he is not in place to merely guide the department of children and family services through their “cooperation” with the California Attorney General’s Office, as he claimed.
When pressed on why the county could not simply cooperate with the attorney general’s investigators and attorneys without introducing Hueston as a middle man, county officials put out that Hueston’s assistance was necessary to allow the county “to efficiently respond to any questions the attorney general might have.” Hueston has no previous experience with child welfare issues, they acknowledged.