Defense Seeks To Exploit Reluctant Witness In Week 8 Of Colonies Trial

By Ruth Musser-Lopez & Mark Gutglueck
In the eighth week of the Colonies Lawsuit Settlement Public Corruption Trial, defense attorneys pushed to build on the momentum they had appeared to pick up last week when a key prosecution witness bridled in that role and frustrated the prosecutor seeking to elicit from him the answers he had provided to previous grand juries in 2009 and 2011, as well as in statements made to district attorney’s office investigators in the 2009-2010 timeframe.

Matt Brown

Matt Brown

That witness, Matt Brown, had been the chief of staff to former county supervisor Paul Biane, who is now a defendant in the case along with Colonies Partners co-managing principal Jeff Burum, former sheriff’s deputies union president/former assistant assessor Jim Erwin and Mark Kirk, who was the chief of staff to former supervisor Gary Ovitt.
Articulated in a 29-count indictment handed down in May of 2011 are prosecutors’ contentions that that Erwin had assisted Burum in extorting Biane and another former member of the board of supervisors, Bill Postmus, to support a $102 million settlement of a lawsuit brought against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Prosecutors maintain Burum was able to wring the $102 million from the county and its taxpayers through the use of blackmail, threats and intimidation prior to the vote, which took place in November 2006, and that Burum, in conjunction with the Colonies Partners’ other managing principal Dan Richards, delivered $400,000 in
bribes to Postmus, Biane, Kirk and Erwin after the vote. Those bribes, prosecutors say, were disguised as separate $100,000 donations to political action committees controlled by Biane, Kirk and Erwin and two $50,000 donations to two political action committees controlled by Postmus. The settlement was supported by Postmus, Biane and Ovitt and was opposed by then-supervisor Dennis Hansberger and supervisor Josie Gonzales. Neither Ovitt nor Richards was indicted; the indictment alleged the $100,000 had been delivered to Kirk for delivering or influencing Ovitt’s vote in favor of the settlement.
Brown created the San Bernardino County Young Republicans political action committee, which prosecutors allege was actually controlled by his boss, Biane. The San Bernardino County Young Republicans committee was the recipient of one of the $100,000 contributions from the Colonies Partners which prosecutors maintain were bribes.
But last week, nearly eight years after Brown made that decision to cooperate with investigators and betray Biane, who had elevated him to the position of chief of staff in his office and whom Brown in his testimony described as his best friend, Brown came across as reluctant to fulfill the role the district attorney’s office had taken as an article of faith he would live up to. To dozens of questions put to him by Supervising Deputy California Attorney General Melissa Mandel, Brown responded that he did not know or that he could not remember. Generally, the questions being asked of him were ones he had fielded before, during his appearances before two grand juries, one in 2009 and another in 2011. It was at least partially on the strength of those previous statements that the indictment had been handed down and prosecutors had expected that he would essentially recapitulate his earlier testimony, this time in front of the two juries that are hearing the case.
Brown’s comportment in the witness box under direct examination was not a total loss for the prosecution team, as Mandel was on occasion able to salvage part of the narrative from Brown she had hoped to have him freely and fluidly provide the jury by having him read transcripts of his grand jury testimony or statements to investigators to refresh his recollection before she would then direct questions to him. By quoting passages of that testimony or those statements, she was able to prod him into grudging answers that paralleled his previous testimony that was in some measure damaging to the defendants. But that process was both tedious and awkward and in some of his responses and remarks Brown was able to express or cast doubt with regard to the complete accuracy of his previous statements. Moreover, by his demeanor, Brown was outwardly conveying that he was being forced to testify contrary to his own volition. This, combined with his assertions he vouchsafed in his testimony that he been bullied and intimidated by the district attorney’s investigators, conveyed the impression that he might have previously been telling investigators what they wanted to hear rather than what he knew or believed to be the truth. Mandel had been so frustrated by Brown’s intransigence that at the close of his first day of testimony after he and the jury had exited the courtroom, Mandel told Judge Michael Smith that “This is a very different Mr. Brown than we expected to see. Obviously, something has gotten to him.” Smith concurred, stating, “I’m making a finding he [Brown] is being intentionally evasive,”
For the two days Brown was on the witness stand last week, he was subject exclusively to direct examination by Mandel, relegating the lawyers for the defendants into the limited role of raising sporadic objections to Mandel’s questions with regard to either form or substance, which Judge Smith only intermittently sustained. Thus, defense attorneys arrived in Judge Smith’s courtroom on Tuesday morning, following the extended Presidents Day Holiday, chomping at the bit and loaded for bear, anxious to blast the crack that had been revealed in the prosecution’s armor into a gaping hole. Yet, their cross examination would require a degree of finesse, forbearance and agility, as the aggressive line of questioning that had been under preparation for months was now deemed inoperative in light of the Brown’s bearing and the apparent hostility he had evinced on the stand toward Mandel.
Indeed, Brown’s tenure as a witness at the trial would evolve to feature what can be described as surreal overtones, as the prosecution on occasion found itself seeking to impeach its own witness while the defense filled the role of seeking to uphold the credibility of an individual who had been instrumental in assisting investigators and prosecutors in assembling the case against the accused.
Mandel concluded her direct examination of Brown Tuesday morning by using his previous statements extrapolated from his grand jury testimony to impeach another prosecution witness, Tim Johnson, also a Biane staff member whom Brown had overseen and who succeeded Brown as chief of staff when Brown departed Biane’s office in 2010 after it was discovered he was cooperating with the district attorney’s office investigators in trying to ensnare his boss. Defense attorneys were then free to cross examine Brown.
Stephen Larson, the lead defense attorney for Jeff Burum was able to elicit from Brown that he was essentially unconvinced, despite the suggestions of district attorney’s office investigators to the contrary, that there had been anything improper or illegal about the $100,000 contribution his San Bernardino County Young Republicans political action committee received in June 2007 from the Colonies Partners. Larson doubled down, getting Brown to say as well that he did not believe there was anything illegal about the county’s $102 million settlement with the Colonies Partners.
Whereas Brown’s spotty memory of his testimony and statements to prosecutors and with regard to the events now going back more than a decade greatly hampered Mandel, Larson was able, to a certain extent, to capitalize on it, seeking to show the jurors that there was nothing unnatural, forced, falsified or contrived about his memory loss, since his last appearance before a grand jury in the case came nearly six years ago in 2011, his testimony before a previous grand jury in 2009 was nearly eight years past and that the underlying civil case between the county and the Colonies Partners occurred over a period going back 11 to 15 years ago. Larson pointed out that as early as 2009 Brown was telling investigators that there were events relating to the matter and the events leading up to the settlement of the case in 2006 he could not recall at that time.
“Your memory did not improve over time, correct?” Larson asked.
“Correct,” Brown said.
What was revealed was that Brown was interviewed/interrogated by district attorney’s office investigators, who were in the main led by Hollis Randles, nine times in person and 12 times over the phone from April 2009 through April 2010, totaling 20 hours of recorded conversations. Many of those contacts with the investigators related to efforts by Brown to tape record Biane, and on at least two occasions, Postmus. All told, between September 2009 through April 2010, Brown compiled 87 surreptitiously recorded conversations totaling about 26 hours, most of those with Biane. At this point it is not clear exactly what is on those tapes and whether Biane or Postmus made any statements implicating themselves. There have been vague indications that the effort by Brown proved futile, or essentially futile, as evinced by his testimony that he was telling Randles at multiple stages of his undercover work that there was not any substance to the suspicions and accusations against Biane and Postmus.
Larson referenced a February 8, 2010 interview with Randles, in which Brown said there had been no bribe offered by Burum in return for votes to approve the settlement, what was termed a quid pro quo.
“You told him that many times?” Larson asked.
“Yes,” Brown said.
When Larson attempted to push beyond what Brown’s thoughts and perceptions were and get to what substance was on the tapes and whether Biane and Postmus had made incriminating statements or not, he was stopped short. Larson asked Brown what Postmus and Biane told him. Mandel objected, citing those statements as hearsay. Judge Smith sustained the objection. Smith’s second such ruling to that effect had a visible impact upon Larson, whose countenance and body language registered perturbation, a manifestation not typical in the magisterially reserved Larson. Shortly thereafter, with the jury no longer present, Larson in strong terms registered his protest at not being able to explore before the jury the tape recorded evidence Brown had accumulated at the behest of investigators, asserting that Postmus and Biane telling Brown there was never any quid pro quo was a key element of the defense he is mounting on behalf of his client and that under the circumstances it was evidence that is admissible. Larson, who was a federal judge before returning to private practice more than seven years ago, was able to soften no soap with that argument and Smith upheld his ruling that as hearsay, the evidence would not be presented to the jury.
Larson, in his further cross examination of Brown, focused on an area already raised during Mandel’s direct examination of Brown, much to her chagrin, pertaining to the fashion in which the investigators, in particular lead investigator Hollis Randles, browbeat and sought to intimidate him while seeking to extract from him statements to further the case they were attempting to build, despite Brown’s repeated assertions that the words they were laboring to place in his mouth were not true.
“They were trying to get you to change your answers, correct?” Larson asked Brown.
“Correct,” Brown said.
Though Larson is representing Burum, he forayed into areas of the case pertaining to the other defendants nearly as much as he dwelled on the charges against his own client. One of these was the prosecution’s contention that Biane had secretly controlled the San Bernardino County Young Republicans PAC, one of the recipients of the $100,000 contributions made by the Colonies Partners in 2007 which prosecutors have characterized as disguised bribes.
Brown acknowledged that Brown had control over the political action committee along with him and another Biane staff member, Tim Johnson, but indicated there was nothing secret about it and that Biane had openly and actively raised the majority of money brought into the PAC, which is an acronym for political action committee. Brown said Biane was completely open about that activity.
Larson also succeeded in getting Brown, whose idea it was to create the San Bernardino County Young Republicans club and its accompanying PAC, to controvert another element of the prosecution’s theory.
“It wasn’t created to receive bribe money, was it?” Larson asked.
“No,” Brown said.
As to the $100,000 PAC contribution, Brown said he received a phone call from Colonies’ co-managing partner Daniel Richards in 2007 alerting him to the contribution and that Richards said he wanted to personally inform Biane of the contribution. This had significance because the prosecution earlier made much of Johnson’s statement that Biane had not expressed surprise about the large scale donation, implying that Brown had an expectation of receiving the money in return for his vote in favor of the settlement. Brown’s statement seemed to elucidate that Richards had already told him it was coming.
Brown also told Erwin’s attorney, Raj Maline, he repeatedly told investigators there was no wrongdoing involving the Colonies’ settlement and the PAC contributions.
Biane’s attorney, Mark McDonald, succeeded in having Brown state that Biane, who had professional experience in the real estate market, was able to rely upon his own knowledge with regard to the decision-making process regarding the Colonies Lawsuit settlement, at least insofar as land values were concerned.
After the defense attorneys concluded their initial round of cross examination on Wednesday, Mandel on redirect sought to limit the damage, coming back at Brown by focusing him on elements of his previous testimony before the grand juries that clashed with his current estimation that the settlement was kosher and there was nothing illegitimate or illegal about the Colonies Partners providing $400,000 to those involved in approving the $102 million payout and Kirk and Erwin, who influenced those who approved it.
Referencing Brown’s 2009 testimony before the first grand jury to hear the matter, Mandel succeeded in getting Brown to acknowledge he had testified at that time that “I believe there was something that was inappropriate about that settlement.”
Mandel revisited other elements of Brown’s previous testimony and statements, including his statement that the Colonies Partners’ use of the press in the months and weeks before the settlement was reached was “unusual” and used to stampede the board of supervisors into a settlement. When Brown said he did not recall saying that, Mandel read from his testimony in which he indicated that the Colonies Partners used press accounts to propound that the county was potentially on the hook for $300 million in damages in the lawsuit. “It was only a couple of weeks time that they went from $300 million to when they settled for $102 million,” Brown had said. “It was a big show; they settled for a third. I never heard that $300 million figure until I saw it in the paper.”
Mandel asked, “So your testimony was that this use of the press was a public relations show to cover the settlement?”
“Yes,” said Brown. “It appears to be my opinion at the time.”
Mandel asked Brown if he remembered that “during the 2006 timeframe there were public statements by Mr. Burum” to the effect that he [Burum] “would fire them [Biane, Postmus and the rest of the board of supervisors] if they worked for him?”
Brown said he did.
Mandel asked if it was Brown’s “understanding that Mr. Biane would continue to receive financial support from Mr. Burum if he voted against the settlement?”
“I don’t recall,” Brown said.
Mandel then boldly sought to impeach Brown over his assertion that he had never believed nor ever told the investigators or the grand jury that bribery involving the board of supervisors in conjunction with the settlement of the Colonies Partners’ lawsuit took place.
“You were asked a lot of questions about whether a quid pro quo occurred,” Mandel said. “You said ‘No.’ Is that right?”
“Yes,” Brown responded.
“That was your opinion,” Mandel said. “You told Bud [i.e., Hollis] Randles there was never any quid pro quo regarding that contribution?”
“Yes,” said Brown.
“This was specifically about the $102 million?” Mandel asked
“Yes,” said Brown.
“You were bewildered why they were not understanding your answers, right?” Mandel asked.
“I did not understand why they kept asking me,” Brown said.
Then Mandel sprung. “Five months earlier, to the grand jury, you testified that you believed there was a quid pro quo.”
“I don’t recall that,” said Brown.
Mandel then referenced page 78 of Brown’s 2009 grand jury testimony to demonstrate that he had said just that.
Brown endeavored to recover from Mandel’s snake bite.
“It was only my opinion,” Brown said. “There was no factual basis to prove it, but I believed there was something inappropriate regarding that settlement. I believed that there was something illegal regarding Mr. Postmus and Mr. Burum.”
Brown acknowledged that he testified as to the existence of a quid pro quo to the grand jury. “Then you went on for about three-and-a-half pages as to why you thought there was a quid pro quo,” said Mandel as Brown read over his grand jury testimony. “You testified that others had been receiving money, others that were a part of the settlement. That concerned you. You then did proceed to list a number of factors that caused your concern and then your conclusion that there was a quid pro quo. Did you then testify to the grand jury about your basis that there was a quid pro quo?”
“I haven’t read it yet,” said Brown.
“Okay, go ahead and read,” said Mandel. When Brown concluded reading, she said, “Did you list a number of factors that brought you to that conclusion?”
Brown responded, “Not specific factors.”
“But did you then go on that there was a number of factors that led you to believe that there was a quid pro quo?”
“Correct,” said Brown.
“You knew there was the appearance of a payoff?” said Mandel.
“Yes,” said Brown.
During their next round of cross examination of Brown, the defense attorneys worked to reestablish that Brown’s statements in the past implicating the defendants reflected only, on one hand, his former opinion that was informed by rumors or, on the other hand, his efforts to placate his interrogators to get them off his back.
Larson on Wednesday seized upon Brown’s own words, getting him to reassert that he had told district attorney’s office investigators there was “no factual basis” to support his once-stated opinion that “something illegal happened.”
Larson pushed further on the theme of rumors having colored Brown’s thinking early on during his interaction with the investigators and his decision to cooperate with them and accede to their request that he employ the audio recording device to target Biane and Postmus. One such rumor, he told the jury in response to Larson, was that pertaining to Judge Peter Norell’s inappropriate contacts with the Colonies Partners at the Red Hill County Club. Norell had been the judge who oversaw the early stages of the civil litigation between the Colonies Partners and the county.
“Later, I found out that the rumor was not true,” said Brown.
With regard to Brown’s statements before the grand jury to the effect that the Colonies settlement was tainted by graft or bribery, Larson asked, “You speculated before the grand jury?”
“Yes,” said Brown. “I think it was my opinion and I trusted my gut feeling.”
“It turned out to be wrong?” Larson asked.
“Yes,” said Brown.
“And Ms. Mandel knows that is wrong?”
Brown did not have time to answer before Mandel sharply objected and Judge Smith sustained her objection.
Before Brown was dismissed pending being recalled, Mandel had one further go-round with him, this time outside the presence of one of the two juries hearing the case. Erwin’s guilt or innocence is to be determined by one panel. The other is to decide the fate of Burum, Biane and Kirk. This is because some earlier statements by Erwin are admissible only against him and not against the others.
With Erwin’s jury present in the courtroom and the other panel dismissed, Mandel questioned Brown about a conversation he had with Erwin in May of 2007 in the café located on the ground floor of the county’s administrative headquarters. In 2009, Brown told the grand jury that in that exchange, Erwin told him he had acted as a go-between for Burum during the Colonies settlement negotiations with the county, and that Burum had hired private investigators to rummage through Biane’s trash. Brown said that Erwin maintained the private investigators found numerous credit card statements that were past due and that Biane was in arrears on his bills. Brown had testified that Erwin claimed he had convinced Burum to not send out to the county’s voters mailers that made use of the information the private investigators had gathered as part of the campaign Burum was waging against Measure P, which was a 2006 countywide ballot measure sponsored by Biane to increase supervisors’ salaries from $99,000 per year to $151,000 annually.
The information about Erwin and Burum using private investigators to dig up derogatory information about Biane dovetails with accusations contained in the indictment, which holds that Burum and Erwin sought to extort Postmus and Biane into supporting the settlement through blackmail and threats before the settlement was arrived and that Burum then kicked back to Postmus, Biane and Kirk after the settlement was voted upon.
“He told me Jeff Burum had hired a private investigator to dig through Paul’s trash and they found numerous credit card bills,” Brown said. Brown said that Erwin said Biane needed the added income Measure P would offer because he couldn’t pay his bills and that as part of the campaign against Measure P Burum wanted to “expose Paul’s personal debt.”
When Erwin’s attorney, Rajan Maline, followed up on those statements, Brown told him Erwin did not show him and he never actually saw the mailers. Maline also got Brown to say that he did not find Erwin’s claim to be wholly believable.
Maline sought to reinforce that by using the courtroom’s overhead projector to show an aerial photograph of Biane’s home at the end of a cul-de-sac located in a secluded neighborhood in the foothills of north Rancho Cucamonga. In doing this, Maline was attempting to illustrate for the jury that gaining access to the Biane household’s trash without being noticed would have been a challenge. Maline asked Brown if Biane had a dog at that time and Brown said Biane had a boxer.
An illuminating portion of testimony during Brown’s last day on the stand came when he was asked about the effort put on by the team supporting Measure P to ensure the initiative’s passage. Biane and Brown were the major components of that team. Brown testified that in addition to providing the argument in favor of Measure P, which concentrated not on the salary increase for supervisors that it entailed but rather its three-term limitation provision, they had also sought to write the argument against Measure P. They intended to offer a weak argument against the measure but were thwarted when a committee that was sincerely against the measure submitted an argument against it, and the county registrar of voters office held a coin flip to decide which argument would be published in the 2006 sample ballot delivered to voters countywide. As it turned out, Biane and Brown lost the coin flip. Nevertheless, Measure P did pass and Biane got his $52,000 per year raise.
Briefly testifying on Wednesday was Colin McKenzie, who was once the treasurer for the sheriff’s deputies union, the political action committee for which was a recipient of in excess of $400,000 from the Colonies Partners over the years. McKenzie was unable to explain why a state campaign finance reporting document the union filed with the state and the county showed Patrick O’Reilly, with his last name misspelled O’Riley, as an officer in the political action committee associated with Biane, the San Bernardino Young Republicans. O’Reilly was a consultant who worked for Burum.
Late Wednesday and all of Thursday, former San Bernardino County Administrative Officer Mark Uffer, who had occupied that position when the lawsuit settlement with Colonies Partners was effectuated, testified. His questioning was handled by another member of the prosecution team, San Bernardino County Deputy District Attorney Lewis Cope.

Mark Uffer

Mark Uffer

Uffer shored up a portion of the prosecution’s theory pertaining to Kirk, essentially that Kirk exercised something akin to a Svengali-like hold over Ovitt, such that he had influenced him to vote in favor of the lawsuit settlement. Uffer said that Kirk “drove the agenda” in Ovitt’s office, and that Ovitt passively went along with Kirk’s dictates, despite the consideration that Ovitt was actually Kirk’s boss.
“Mr. Kirk essentially dominated the office,” Uffer said, adding it was “always uncomfortable to go into that office because you couldn’t deal with Ovitt directly.”
The most theatrical passage of Uffer’s testimony came when Cope asked about a change in the behavior of Bill Postmus in 2005. Uffer had already said that upon his first going to work as the administrative officer in 2004, Postmus was engaged and involved. He noted that Postmus changed dramatically in 2005. The change, involving extraordinary behavior and a radical alteration in his demeanor, was readily apparent, Uffer testified, upon Postmus’ return from a China trade mission in late 2005.
He was called to meet with Postmus, Uffer said, and he walked from his office to Postmus’s office and waited outside the door because Postmus had yet to arrive at the government center. Postmus came up to the fifth floor and walked past Uffer and into his office without greeting him, Uffer said. Postmus was “somewhat disheveled” Uffer reported. “His hair was all messed up, one shirt tail was out. He had a handful of cigars. He smelled bad, like he hadn’t bathed in awhile, and he was unshaved,” Uffer said. As Uffer followed Postmus into his office, Postmus walked around his desk, threw the cigars he was carrying into a humidor, and sat down. Without pausing for niceties, Postmus blurted, “We have to settle this Colonies lawsuit right away,” Uffer said. Uffer said Postmus did not give any explanation for the urgency.
“I can only describe it as a bizarre encounter,” Uffer said. From that point on, Uffer said, Postmus came across as “consumed” with having to effectuate the settlement.

Mayor’s Weed University Idea A Sign Of Changing Times

VICTORVILLE—It is an idea that is as old as it is new: combine college students with marijuana. Now the City of Adelanto is looking to move the concept from the dormitories into the lecture halls, classrooms and laboratories.
Times have changed. Right up until the end of the 20th Century and into the first two decades of the Third Millennium, the only institutions in California giving an official welcome to those extolling the use, and facilitating the sale and purchase of marijuana were of the penal variety. And had someone in those years suggested creating an educational institution to study the benefits of marijuana along with the most efficient ways of growing it, packaging it, distributing it, marketing it, smoking or otherwise imbibing it, that person would have been consigned to a mental institution.
Already, the City of Adelanto, which qualifies as one of the poorest municipalities in San Bernardino County, is in a fierce competition with one of the few county cities with the distinction of being poorer still, Needles. The two are neck and neck in laying claim to being the “marijuana capital of San Bernardino County.” While Needles was once leading in that competition, Adelanto last year made a major stride toward monetizing its willingness to tolerate what was anticipated to be the legitimized cannabis industry. With visions of millions of dollars in revenue dancing in their heads, Adelanto officials are now seeking to expand their city’s position from accommodating producers and wholesalers of the once illegal substance to embracing sales, with a future vision of building an ivory tower to study the drug in all of its ramifications and permutations, literally becoming a national or world academic center for the intoxicant.
In 2012, 16 years after California voters statewide passed by 55.6 percent Proposition 215, or the Compassionate Use Act of 1996, Needles, a 4,844-population city located on the eastern shore of California and San Bernardino County at the Colorado River, became the first local city to truly liberalize its attitude toward marijuana. On November 26, 2012, Needles voters approved the adoption of the Marijuana Business Tax Ordinance and authorized the collection of a marijuana business tax of up to 10 percent of gross receipts. In December 2012, the Needles City Council set the marijuana business tax at the maximum 10 percent.
Thereafter, a number of entrepreneurs began transacting business as marijuana purveyors in Needles, putting the city at the forefront of San Bernardino County cities with respect to allowing the sale of medical marijuana. In this way, Needles enjoyed the distinction, dubious or positive depending on one’s personal perspective, as the leader in the marijuana industry within the largest county in the lower 48 states. In December 2014, with prospective marijuana operation applicants threatening to burgeon into the dozens, the city drew the line on the number of dispensaries it would allow, restricting the number to the five then functioning with fully legal permits.
In November 2015, Needles lost the earmark of being San Bernardino County’s primary civic extoller and intended municipal cannabis profiteer when Adelanto legalized marijuana cultivation within its industrial parks. In doing so, Adelanto continued to ban retailing marijuana, that is, direct sale of the drug to end users, calculating the city stood more to gain financially by wholesaling large quantities of the product to retailers outside of the city.
The same year, the state legislature passed and the governor signed the Medical Marijuana Regulation and Safety Act. Adelanto’s action served as a wake-up call to Needles officials, who recognized that they would need to adapt the city’s existing protocols, allowances and regulations with regard to marijuana to a changing standard if the city was to fully exploit the availability of the drug in its community as a way of bolstering municipal finances.
They moved to allow the city’s existing pot shops to become growers as well. In this way, Needles was able to regain its title, which virtually all of the county’s municipal officials elsewhere except in Adelanto were only too glad to relinquish to it, of being the county’s most marijuana tolerant jurisdiction.
The game changed once more in November 2016 when what was also known as Proposition 64, the Adult Use of Marijuana Act, was again approved by California voters. Both Needles and Adelanto found themselves in the position of being able to capitalize, in the state’s ever-more tolerant atmosphere with regard to cannabis, on the existing businesses, protocols, support and regulation networks, availability and infrastructures they had already established.
Adelanto officials shed whatever squeamishness they may have once possessed, and with the prospect of being able to grow plants to feed not just “pharmacies” trafficking in the “medical” product but rather megatons of the stuff to accommodate the appetite of the millions of potential smokers of the plant who want to use it for “recreational” purposes, they are looking to capture revenues in the seven figures and potentially in the eight figures annually. The restriction against retail sales in the city of 31,765 is on the way out, such that pharmacies and stores marketing intoxicating hemp will soon be in competition with the city’s existing drug stores and liquor stores.
Adelanto Mayor Richard Kerr, who has not allowed the consideration that he is a retired Marine interfere with the city council’s consensus that the city needs to act, and act quickly to cash in on the marijuana bonanza before other cities gear up to compete, has gone on public relations kick lately, looking to make respectable deriving a profit off the sale of a substance that just a few years ago could get someone a ten year prison sentence. Kerr, who had suffered a broken collarbone, several cracked ribs and a partial collapsed lung after he took a fall on a motorcycle in the desert at Adelanto’s Grand Prix race last month, sojourned to the meeting of the Victor Valley College Board of Trustees on February 14.
Board member Joe Brady had called for a discussion of medical marijuana research being placed on the agenda, and Kerr showed up, seemingly no worse for wear and, on the spot, offered to have his city bankroll the creation of a marijuana research facility for the college if the trustees agree up front to locate that campus in Adelanto.
“I will give you the land,” said Kerr, boldly. “We will build a college for you. Not only that, we will fund the college for you, through federal and state grants. You have to do nothing except embrace what we can offer.”
Kerr suggested that the campus could be located at what is called the Glasper Center, which is named after Adelanto City Councilman Charlie Glasper, once a die-hard marijuana opponent who has come around to see the economic benefits of green marketing. The center is at 17537 Montezuma Street, not far from Highway 395.
Victor Valley College Board President Brandon Wood wasn’t so sure Kerr had not been smoking too much of his city’s major agricultural product.
“You’re seriously offering VVC that the City of Adelanto will build a satellite campus … and pay all the costs associated with that for essentially a technical training center for the hemp medical cannabis industry?” Wood asked.
“Yes, sir,” Kerr responded. He said the students would then be able to put the skills they pick up at Pakalolo University. “When the students are done being educated through you, they can work in Adelanto,” Kerr beamed.
A still somewhat skeptical board member, Dennis Henderson, pressed Kerr on whether the remainder of the Adelanto City Council was on board with the idea, including providing the campus grounds and building the structures to house the classrooms and laboratories. Kerr assured him he had the council’s backing. An expansion of Victor Valley College to a satellite campus has been on a back burner for some time. In 2008, the college picked up 55 acres on the Oro Grande Wash for $10.9 million, but there is not money in the college budget to undertake architectural or engineering plans, let alone the funds for actual construction. Nor does the college have faculty members to spare from its existing campus on Bear Valley Road just east of Spring Valley Parkway.
For Kerr, however, creating what could well become the world’s first marijuana college represents prestige that could only serve to burnish Adelanto’s position as a leader in the cannabis industry, and further lock in the advantage he and his council colleagues see in cornering the market on selling weed to the millions of people who get their kicks out of blowing grass.
Kerr’s proposal found support from Dr. Trent Jones, who uses aquaponics to grow what he euphemistically referred to as “natural plant medicine.” By billing the research as related to natural plant medicine, food production and medical product production, Jones said the college could get around federal law, which still classifies marijuana as a Schedule 1 narcotic, and get federal education grants and subsidies for among other things, a “vocational horticulture program model.”
Board member Marianne Tortorici said she did not consider it likely that Victor Valley College, as a two-year institution, was going to capture any research grants, which normally fall to four-year colleges or universities.
Brady, however, expressed confidence that community colleges might be given clearance to participate in such research if it were to be broached correctly.
Kerr said he wanted to get started right away and he was directed to further explore the matter by dialoging with Victor Valley College President and Superintendent Dr. Roger Wagner.

Jilted-Yet-Still-Enamoured SB Council Considers Firing Scott But Relents

SAN BERNARDINO—At the suggestion of councilman Benito Barrios, the San Bernardino City Council at a rare Tuesday night meeting this week steered itself between the extremes of cutting city manager Mark Scott completely loose and giving him what was essentially open-ended license to remain in his $280,000 per year position overseeing municipal operations in the 213,000-population county seat at his own discretion on a month-to-month basis.
Barrios floated an alternate proposal to an earlier motion that would have ended the city’s association with Scott. Instead, the council has extended Scott’s tenure with the city at least until March 7, a day after the council is next scheduled to meet and the day before the Reno City Council is slated to determine whether it will hire Scott to manage that city.
One observer likened the city council to a high school kid who gets stood up by the prettiest girl on campus for some Fancy Dan but who will not seek another date because he hopes the Fancy Dan might end up ditching her before the prom actually gets into full swing.
While the San Bernardino City Council’s members were uniformly laudatory about Scott’s job performance over the 54 weeks he has been on the job, five of the council’s seven members – Barrios, Jim Mulvihill, Henry Nickel, Virginia Marquez and John Valdivia – were straightforward in stating their belief that Scott is purposed, despite the high esteem in which he is held in San Bernardino, to depart. Such was signaled three weeks ago when it was revealed that he was being considered by Reno, Nevada as a replacement for Andrew Clinger, who resigned last year.
Scott, who had been the city manager in Burbank before he was tapped in late December 2015 to lead San Bernardino’s staff, took on the city manager’s position in San Bernardino on February 6, 2016 pursuant to a one year contract, which was done by mutual consent since the city was gun shy about a long term commitment in the wake of its experience with Allen Parker, who had been hired during the last year of former mayor Patrick Morris’s eight-year tenure as mayor. Though Parker appeared to be on the same page with Morris’s successor, Carey Davis, when the later came into office in 2013 and seemed to be at one with the necessity of significantly reducing municipal expenses through drastic cuts in personnel as well as salary and benefit reductions for remaining employees, Parker found himself resented by employee unions, leaving him in a vulnerable position. When his relationship with Davis soured in December 2014 over Parker balking at endorsing Davis’s bid to keep Mike McKinney as his chief of staff, there followed an eleven month situational deterioration as Parker grew more and more disengaged in his function at City Hall. The council handed Parker his walking papers, which involved a mutual release and a severance package including Parker getting 12 months of pay and medical coverage following his official departure as of December 31, 2015. Thus, in bringing Scott to the city, the city council offered him a single 12 month contract with the possibility of extensions. Scott, whose two major assignments were to guide the city into its final exit from the Chapter 9 bankruptcy protection it had entered into in 2012 and push through a charter reform package the majority of the council favored, was unwilling to commit beyond the year he was being offered, though he said if things worked out he would not mind remaining with the city until he retired, potentially not until 2022.
Several months before Scott’s one-year anniversary with the city arrived, the council as a whole had overcome whatever reservations its members may have had. Scott actively campaigned for the charter changes, which were passed by the voters in November, and within the last fortnight the city’s bankruptcy exit plan was ratified by the federal bankruptcy judge, Meredith Jury, overseeing the case. Meanwhile, the city council had delayed, postponed or deferred Scott’s performance review, which, at least according to some official statements, was supposed to have been undertaken at the three, four or six month point after his official start with the city. As his one year anniversary was approaching and that review had yet to be undertaken, indications were that he would be provided with ongoing one-month extensions until such time as his performance review was completed, at which point he would be offered a two-year, three-year, or four-year contract as was deemed appropriate based upon the review. Just a few days shy of his anniversary, however, on February 1, Reno posted its agenda for its February 8 city council meeting in which it was revealed that Scott was among five candidates being considered for that city’s top staff position.
That announcement, which Scott might not have anticipated, seemed to catch both him and the San Bernardino City Council flatfooted when word reached San Bernardino within 48 hours. Scott had not given any previous indication of his intention to leave San Bernardino. At first blush, what was suggested was that Scott, who had relocated to an apartment in San Bernardino to be in compliance with previous charter requirement that he live in the city, was chaffing at that limitation and was seeking to get on with Reno so he could cohabit with his wife.
With the elapsing of his one-year contract and a decision in Reno not yet finalized, Scott remained in place as city manager.
This week, the city council did not meet on Monday because of the Presidents Day Holiday, and instead convened on Tuesday. The agenda for that meeting contained an item pertaining to sustaining Scott as city manager on a month-to-month basis. The consideration that sometime in the previous 60 days, Scott had either actively applied for the opening in Reno or had been recruited to the position hung over the meeting, with councilman Jim Mulvihill first enunciating that the council needed to come to terms with Scott leaving either in the near or more distant term.
“He’s leaving,” Mulvihill said, sizing up the situation and offering the view that it would be best for the city to adapt to that reality sooner rather than later.
In his comments, Henry Nickel picked up on that theme. “I would not want to lose the services of Mr. Scott,” Nickel said, but bowing to the inevitable, remarked, “It may, in fact be more destabilizing keeping him month-to-month than the alternative. Uncertainty is not a friend of investment and development, which is what the city needs at this time. It has become clear Mr. Scott is seeking employment elsewhere.” By continuing on with Scott on a month to month basis, Nickel said the city will embrace instability. “Will it be next month when we get that notice? Will it be six months from now?” he asked. “If I were in the shoes of someone investing multiple millions of dollars in our city, I would be concerned I wasn’t negotiating with someone who will be out the door in the next six months and when that person is out the door and I will have to start over. I do not want to lose the services of Mr. Scott but month-to-month simply does not provide that stability.”
At that point, Nickel suggested that for the sake of future continuity the council elevate assistant city manager Andrea Travis-Miller to the position of city manager and reduce Scott to the status of assistant city manager. More than four years ago, Travis-Miller had served in the capacity of interim city manager following the departure of former city manager Charles McNeeley. “What would be the detriment to perhaps transitioning our current city manager to the assistant city manager position and transitioning our current assistant city manager, who I assume has a long term commitment to the city, to city manager?” Nickel asked.
Nickel said such a move would not signal that “we’re going to get rid of Mr. Scott but transition to someone who would have a commitment to our city long term.”
As Nickel was making the suggestion, Travis-Miller, seated in the row of city officials at the front of the council chambers in front of and beneath the council dais facing away from the citizen gallery, appeared to be shuddering at the prospect or virulently shaking her head no. After the meeting she would tell the Sentinel she was merely attempting to signal to Nickel that such a matter should not be discussed in open session. Indeed, within seconds Mayor Carey Davis, city attorney Gary Saenz and assistant city attorney Jolena Grider moved to hush Nickel, asserting in near unison that the matter would be more properly discussed in closed session.
Nickel responded, “I do agree that this is something that should take place in a closed session, but so far it has not. I simply do not think at this time we can afford a destabilizing relationship, which is what we get with a month to month [arrangement]. I cannot support a month-to-month [contract] tonight, based on the information before me… versus a more stable relationship with our city manager whoever that person may be.”
At any rate, Nickel said, he believed it “appropriate” to hold a performance review of Scott in closed session before making any decision on his extended tenure with the city.
Councilwoman Virginia Marquez said, “Mr. Scott is my fifth city manager in seven years. That is not stability. I have a problem with this agenda item. I’m a huge fan of Mark Scott because he came to us at a very good time. He was the right person for the time and he continues to be so, but I feel like if he moves on to Reno or has other plans, we’re left holding the bag. This is a very crucial time. We’re implementing a new city charter, which makes us a very strong city council/city manager form of government. We’re exiting bankruptcy. We’re moving out of City Hall. It’s just not right for us. If he moves on, then I don’t know who will be acting [city manager], and I think we have to start thinking about a succession plan. So, I cannot support this item.”
Travis-Miller, sensing the momentum of the council, sought to refocus the council, breaking into the discussion to say that she urged the council “strongly to support this item” and saying Scott had assembled “a great professional, capable team.”
Barrios asked Travis Miller “What are the consequences of not supporting this tonight?” Travis-Miller said it would send a “message about stability” or lack thereof. She said that Scott had a “commitment” to the city. “I can tell you he is engaged. I have worked in the industry a very long time. Mr. Scott is one of the most engaged city managers I have ever worked with. I think it is important that you have that leadership at this time, and continue to discuss your options later. All this does is continue your relationship. It is a month-to-month [arrangement], anyway.”
When Barrios pushed to find out what the immediate effect would be if the month-to-month agreement with Scott was not approved, Grider stated, “The mayor did extend this until today. If you don’t approve this tonight, we have no city manager. We have just got out of bankruptcy and that sends the wrong message to the bankruptcy court, to our creditors.”
Councilman Fred Shorett leapt to Scott’s defense. “Mark Scott has maintained a residence in this city of San Bernardino,” he said. “He’s commuted home on the weekends. He’s been here on Friday nights and he’s been here on Saturdays. My colleague said he can’t commute. I couldn’t disagree more. I know a lot of people commute from the desert to Los Angeles on a daily basis. We did hear from Mr. Scott, and I believe him, he was not really looking for a job [in Reno]. He came here with the intention of staying for three, four, five years. He looked at the challenges. He looked at the opportunities.”
Shorrett said it was the council’s fault for dithering on offering a performance review that would have paved the way for stability with Scott. “As far as a performance review, that is something we should do,” he said. “We should do that on a regular basis. I think his performance is something that speaks for itself. I think the results that we have seen, I think the things we have done over the past year speak for themselves, as far as his leadership and performance. I am anxious for us to wait and see how he does in Reno. And if he is successful, then we wish him the best, because he helped us a great deal and we move him down the road and we take it on. But that’s going to happen within a few weeks. So a month-to-month [arrangement], I think we can. And if for some reason – I told him, Reno’s crazy if they don’t hire him. He’s that good. They would be stupid not to hire him. We do have Andrea Travis-Miller back. I’m thrilled with her performance and Mark Scott is thrilled with her performance. She can step in. I guess she’ll step in if we vote tonight to not extend the contract. But I think to not extend the contract and look like we are in chaos again would be absolutely crazy. Mr. Scott was concerned about the commute and he was concerned about his home life. This opportunity came along and this was one he really wasn’t looking for, and I believe him, and that he simply couldn’t say no, he had to give it an opportunity. But I’m convinced there is a way for him to stay, if he isn’t successful in Reno.”
Shorett said that if Scott did not get the Reno job, the city should then get a commitment from Scott. “What he has done in this community is phenomenal,” Shorrett said.

At that point, councilman John Valdivia drove what appeared to be the final nail into Scott’s coffin.
“The council provided” Scott, Valdivia said, “a $1,500 a month housing allowance.” Valdivia said he opposed that provision but that “I ultimately supported his appointment to be the city manager. I think it is clear the $1,500 [stipend] is now appearing again. I see some inconsistencies with Mr. Scott suggesting in conversations he somehow has had some issues with the housing, the apartment, for whatever reason, and he is now considering just commuting. So, I think he has made overtures that his rent and housing situation in San Bernardino has certainly, in my estimation, been compromised, and he would like to commute from Rancho Mirage and spend the nights with his wife. [That is] understandable and I respect that. Regarding his salary, I’d like to read from the record, ‘Mr. Scott shall be compensated at the annual salary set at equal to $248,076.’ [That is] on top of the other perks we provide Mr. Scott, which is the $1,500 per month for rental in the city limits. I have a deep regard for Mr. Scott. In fact, I have witnessed and experienced his commitment to professional service as a city manager. I have had a very friendly relationship with Mr. Scott. In fact, he and I meet twice monthly on various issues regarding the future of our city, my ward and the issues pertaining to the ward I serve. I have seen him to be a consummate professional in my dealings with the issues at hand. I certainly believe that he was brought in for two primary reasons, those expressed on the city charter issue, which he was unashamedly bold about his commitment to change the charter. I disagree, respectfully, on that. That was one of the main points on him coming to this city. The other issue was him leading us out of bankruptcy. I think he has accomplished both of those commitments to his own personal resumé as well as to our city. Tonight, I think we are dealing with a different matter. I certainly appreciate what councilman Mulvihill has suggested. My concern is the future of our city, the progress of our city and how in fact we will look the day after bankruptcy. Unfortunately, I don’t think we really have that plan as a legislative priority. I have certainly attempted to make those endeavors and lead the charge on the day after, so I will continue my efforts to do that. But for the time being, I too have had a deep soul search on this issue before us tonight and I cannot support a continuation of Mark Scott. I respect him. I think he is a true professional. I wish him the best. I think [of] his efforts in Reno. God bless him, if he is looking for another opportunity. That being the case, I cannot support this contract tonight.”
At that point it thus appeared that Scott was done for in San Bernardino, with Valdivia, Marquez, Nickel, and Mulvihill looking to the future beyond Scott and Barrios appearing to be leaning heavily against renewing his contract on a month-to-month basis.
Scott was not there to speak for himself, as he was in Reno for further evaluation by city officials there with the other three finalists for the position Clark County Nevada Assistant Administrator Sabra Smith Newby, Rocklin City Manager Rick Horst, and former Tulsa, Oklahoma City Manager James Twombly. Palpable throughout the discussion 455 miles south was the suggestion that Scott is indeed set on leaving San Bernardino. Some sensed prevarication in his having cited how working and living in San Bernardino was forcing him to be apart from his wife, given that Reno is more distant from where she is living than is San Bernardino. Earlier that evening, Scott Olsen, a San Bernardino resident had said, “I do support Mark Scott staying with the city. I’m not surprised Mark Scott is entertaining the idea of going to Reno. I’m a little confused if Mark lives in Rancho Mirage, which he has all along and his wife has a profession there, how leaving San Bernardino and going to Reno makes him closer to his wife and Rancho Mirage, but that’s his personal business.”
Olson said the council should not delude itself or make misrepresentations to its residents about the inducements it is prepared to offer Scott to stay.
“What gets me is the city employs $1,500 per month to keep up the illusion that he is a resident in the city of San Bernardino when we know his residency, his legal residency, has been Rancho Mirage all along,” Olsen said. “If we bring Mark Scott back, why don’t we pay him mileage instead of a housing allowance to create this phony illusion?”
After Valdivia’s statement, councilwoman Bessine Richard, the newest member of the council, weighed in. With relatively simple phraseology, she sent the council momentum careening back toward the sentiment of keeping the door open for Scott.
“This was hard for me to think about,” Richard said. “But if you guys think about it, and I am speaking to my colleagues up here, if you don’t agree to this, that means you guys believe Mark Scott should be fired, because that is exactly what will happen. Is that something we really want to do? Because he has done great things in the city within the short time I’ve been here and the short time he’s been here. So, I just ask that we make a stipulation in there that we look at him and maybe add some things to the contract. But he does not deserve to be fired. People talked about the performance review and you’re absolutely right, he should have had a performance review. I know from being in the position I serve in that everybody gets a performance review within ninety days of their employment. So why didn’t we give him a performance review within 90 days of his employment? We can’t just fault him. We have to fault ourselves. So, I just say he’s done great things in the city and we don’t want to be a city without a city manager again. It’s month-to-month. Should something happen we have no problem saying bye-bye. But right now he has not done anything he should be fired for.”
At that point, Barrios leapt into the breach and proffered an alternative motion that called for extending Scott’s current status with the city at least until March 7, by which time it was thought that there would be enough time to communicate with Scott about his intentions. The March 7 date was chosen because the council will meet the prior day, at which point other relevant action with regard to Scott might be taken. The entire council, including Mayor Carey Davis, voted 8-0 in support of the motion.
Later that evening, the council would learn that the Reno City Council had that evening eliminated Horst and Twombly from consideration and will have Scott and Newby back for further interviews on March 7 before making a final decision on March 8.

Needles C of C Exercises Its Right Of Free Association

A circumstance at the eastern extreme of San Bernardino County illustrates the prerogatives of free association and disassociation yet exist in American society, and that even quasi-public institutions can exclude individuals from what are essentially public gatherings if they are so inclined.
The Needles Chamber of Commerce has for nine years running held what is called the “Hot Boat & Car Show,” an event which is particularly well-suited for that community, given its location at the nexus of Historic Route 66 and the Colorado River. The power event has grown to involve over 200 entrants with vendors paying $100 for a single booth positioned near the park’s boat launch and viewing area. Many of those booths consist of food vendors catering to the event
attendees.
This year, as in the last five years, two Needles residents, David Buckley and his mother Jean, were turned away when they applied for a booth for their volunteer organization “Guardians of the East Mojave,”which engages in trash and liter collection in the eastern Mojave Desert as part of CalTrans’ Adopt-A-Highway program.
The rejection of the Buckleys has a backstory. After David Buckley obtained a county health permit for a food-vending booth at a chamber event several years ago, he learned that none of the other food vendors had secured permits. He reported that to the county health department, which thereafter required that vendors secure the permits to sell food at the events, held at Jack Smith Park.
This generated hostility toward Buckley and his mother, and from that point on they have been deemed persona non grata at chamber functions, including the Hot Boat & Car Show. This year was no different.
Some feel the chamber and its members, by excluding Buckley, are not only acting inappropriately and punishing him for having acted to ensure that health safety guidelines were met and others functioning within a public venue adhered to the same standard he had, it is acting contrary to its charter, which is to attract and support local entrepreneurship. Nevertheless, a majority of the chamber’s members or at least its controlling contingent feels he violated the terms and spirit of their collegiality. Accordingly, they have shunned him.
Modernist philosopher Ric James says he believes that in the United States groups can legally bar from their midst people they do not get along with.
“The US Constitution does not mention in its text the term ‘freedom of association,’” according to James. “The Supreme Court, however, has ruled that such a thing is Constitutionally protected in that such a freedom is necessary in order to preserve other freedoms. I would argue that private groups must be free to exclude persons from their association. Associations are made to gather like-minded persons together for some purpose.
“People with a common interest working toward a common goal gather to join in their mutual pursuits,” James continued. “Such groups must be able to deny membership to those they conclude do not share their common interest and to sever their association with persons already a member who demonstrate interests counter to the group’s stated goal.”
This year, before the Hot Boat & Car Show, Buckley, with the assistance of a sympathetic chamber member, succeeded in paying the $100 fee and registering for a booth. When he attempted to attend the event on Saturday February 25, a chamber officer told him to leave.

Stampede Toward Municipal Ward Systems Locking In Advantages For Incumbents

Accusations that a second San Bernardino County city is opportunistically utilizing the rush to transition municipal electoral processes to ward systems to confer upon its incumbent officeholders advantages have arisen.
The same firm which assisted both Chino and Redlands draw up its electoral maps that critics say favor those cities’ current officeholders is now providing the same service to three other San Bernardino County cities where incumbent council members likewise voted to hire it to carry out demographic research and electoral map drawing preparatory to those cities adopting ward systems. An official with the company this week told the Sentinel that concerns the transition to district-based elections will solidify the hold that incumbents have on their respective official positions is misplaced.
Previously, Chino officials were elected at-large, meaning that the only requirement to run for the city’s four council positions was that the candidate be of the age of majority, legally reside within Chino and be registered and qualified to vote. After the city, along with a multitude of other Southern California municipalities were challenged under the California Voter Rights Act by the Malibu-based Shenkman Law Firm for engaging in what is referred to as racially polarized voting, it chose to alter its electoral process so that the city is divided into four wards, each of which is represented by a resident living within that ward. Chino’s mayor continues to be elected at large, meaning he or she can reside in any of the city’s voting wards.
Chino hired Glendale-based National Demographics Corporation to survey the city, determine its balance of ethnicities geographically and draft maps to meet the four-district criteria, which would, within reason, place as close as possible 19,496 residents, or one-fourth, of the city’s overall 77,983 population, into each electoral ward, such that each district was equal, or roughly equal, in the number of its constituents. National Demographics provided seven map options, involving both four council members and six, including the one ultimately accepted and put into place by the council.
There were a number of curiosities about the final outcome of the vote that followed the new district plan. Significantly, the system that was drawn up created districts in which it so happened that each of the two council members who vied for reelection last year, the first election cycle under the new system, and the two who would have been up for reelection in 2018, lived separately in one of the newly drawn wards, such that they would not need to run against one another come election time. As it turned out, Mayor Dennis Yates did not seek reelection and councilwoman Eunice Ulloa, a resident of the just-created Second District, ran to replace him. The two incumbents who benefited by the drawing of the districts who were up for reelection in 2016, Glenn Duncan and Tom Haughey, after having been reelected in 2012, vied in the race for their respective First and Fourth District council positions, which, again coincidentally, were deemed to be the first two districts to have their council representatives elected under the new ward system. No one opposed Duncan or Haughey. Ulloa prevailed in the mayoral election, capturing 16,683 votes or 68.08 percent to the 7,823 votes or 31.92 percent polled by the non-incumbent candidate, Brandon Villalpando, who ran unsuccessfully against her. Ulloa’s ascendancy to mayor created a vacancy on the council, since she was last elected as a councilwoman in 2014, so two more years yet remained on her council term.
Rather than hold a special election, the city council resolved to appoint Ulloa’s replacement for the next two years. Because the position to which she was elected in 2014 was an at-large one, any resident who was registered to vote was eligible to apply. Less than two months after no city resident had come forward to challenge incumbents Duncan or Haughey, a whopping 27 would-be office holders applied for consideration.
That so many would be interested in holding a council position when the perceived odds were fair and untainted by those running having to compete against incumbents with their built-in advantage of incumbency indicated a widespread perception that the system formulated by National Demographics Corporation, which was paid $32,000 for its efforts by Chino’s taxpayers based upon a vote of the city council, was rigged in favor of the incumbents.
Douglas Johnson, a principal in National Demographics Corporation said this is a gross misperception.
“The map for Chino is a very square map, except where the law requires that it not be quadrants, in the center of the city where there is a huge Latino voting block,” Johnson said.
According to the law and Supreme Court decisions, in drawing a map, race can’t be the predominate basis upon which lines are drawn but those lines can nonetheless be placed so as to create a voting district that ensures a majority of a protected class of voters live within the district as long as the district is reasonably compact, meaning that the boundaries cannot be drawn in such a way to exclude non-protected class neighborhoods.
Johnson said that in American politics, an advantage accrues to incumbents, but that has nothing to do with the circumstance in Chino where new districts were formed. He said the advantage of incumbency in Chino and elsewhere exists irrespective of whether an at-large or ward system is used to select government leaders.
“Incumbents have better name recognition and are always better known than their challengers,” he said. He added that those who took issue with the Chino map because it did not create a circumstance where incumbents were placed into the same wards were not considering geographical reality.
“It would take some crazy lines to put these guys together because they don’t live anywhere near one another. They are spread all over the city,” Johnson said. “To put them in the same district would have required drawing a map with fingers that went all the way across town. Should that have been done?”
As to the criticism leveled at the city for having initiated the vote in wards 1 and 4 to correspond with the end of Duncan and Haughey’s last at-large terms, Johnson said, “Why would you do it some other way? The Supreme Court says it could be done that way. Would you rather let some lawyer from Malibu dictate who the city’s elected officials are going to be? Why toss an official out of office like that? Isn’t it better to let the voters decide whether they want to reelect an incumbent? We are not going to intentionally use the demographer’s pen to throw someone the people have elected out of office.”
Johnson said the tables should be turned on those criticizing the Chino map, and that they should be asked, “What advantage do you think incumbents are getting and how would you do it differently.”
Johnson added that Chino was forced into making the change at the barrel of a litigative gun.
“Chino had to go fast,” he said, explaining that Shenkman’s firm “accidentally served court papers on Rancho Cucamonga. All the numbers and demographics were for Chino. From that, Chino learned that the law firm was set to sue Chino.” He said Chino moved expeditiously to head off the filing of the suit.
Moreover, Johnson said the Chino community, or at least that part of the Chino community that participated in the effort to provide input, was fully behind the plan.
“Every public comment offered at the Chino hearings endorsed the plan the council adopted,” he said. “There were some who were opposed to going to a district plan in general, but they accepted that the city had to do so because of the cost. The few comments we got endorsed the map.”
National Demographics Corporation has again been hit with accusations that it did the political bidding for the incumbents on the Redlands City Council when it drew up the map options for that city of 68,747 on the far eastern end of Inland Valley.
At its February 7 meeting, the Redlands City Council, after a good number of city residents expressed preferences for other maps offered by both the National Demographics Corporation and a separate citizens group, pushed to narrow its choice to two maps which favor four of the council’s incumbents – Mayor Paul Foster and council members Paul Barich, Jon Harrison, and Pat Gilbreath, all of whom live within the same two-and-a-half square mile expanse in South Redlands within the 36.427 square mile city. Those two maps favored by the council appear to have been drawn to accommodate and protect the four. One of those maps divides southeast Redlands, which geographically represents less than one fourth of the city, into three separate voting districts, what observers said was a clear effort to head off Foster and Barich having to run against one another. Indications were, however, that those maps would have faced a legal challenge.
This week, a healthy cross section of city residents, alerted to the prospect that the council incumbents were about to confer on themselves an advantage like that enjoyed by the Chino City Council members, showed up to let it be known that they favored maps that were not drawn with an eye to protecting the current Redlands political establishment. The alternative most enthusiastically embraced by the participating citizens was one drawn up by a group calling itself Redlands for Civic Engagement. That map, designated as Map D, placed Barich, Foster and Harrison in a single district, which would pit them against one another in the coming years if all three or two of them sought reelection.
Ultimately, the council rejected Redlands for Civic Engagement’s Map D, instead selecting three maps which conferred protection upon councilwoman Pat Gilbreath, councilmen Eddie Tejeda and Paul Barich, placing them in districts which exclude other incumbents. The three maps do, however, place Paul Foster and Harrison in the same district.
Though the protection given to the council is not across the board, a recurrent term used by many of the Redlands residents to describe the Redlands map was “gerrymandered.”
Gerrymander is defined by Merriam-Webster as 1: to divide (a territorial unit) into election districts to give one political party an electoral majority in a large number of districts while concentrating the voting strength of the opposition in as few districts as possible; 2: to divide (an area) into political units to give special advantages to one group.
Some insinuated that National Demographics Corporation was seeking to please the council, which ultimately made the decision to hire the company.
Johnson sought to defend his company’s performance in Redlands.
“We gave Redlands for Civic Engagement the data to draw the maps,” Johnson said. “That is why they were able to draw them. We gave them the technical data and the city council spent considerable time considering it, talking about it and analyzing it. They were told their map diluted Latino voting strength. The city reached out to give them help in adjusting it but still they have drawn a map that literally violates the Voting Rights Act. All the lawyers involved in the process say it is an illegal map that will present a legal risk if the city were to adopt it.”
That there is no pairing of incumbents in a ward, Johnson said, “is not true in Redlands.” He said that one of the districts is home to Foster and Harrison, such that they will need to run against one another if they wish to remain in office beyond their current terms.
Johnson suggested that the controversy relating to the move by a multitude of cities toward ward districts exists as a consequence of “the mess created by legislation,” meaning the California Voter Rights Act, which gives attorneys the ability to extort cities to adopt ward systems without risk, since plaintiff’s cannot be compelled to cover the cities’ legal costs if legal action under the act fails.
Nevertheless, Johnson said, the rationale for prompting cities to incorporate ward systems has some, though not absolute, philosophical legitimacy, since doing so might boost the electability of at least some of those who have long been political outsiders. He said splitting a larger at-large jurisdiction into ward districts “makes the electorate smaller and makes it easier for new candidates to reach the voters and decreases the advantage of incumbents in an at-large system.”
There is wide latitude in how the Act is applied, Johnson said. “Outside of racial gerrymandering, there is nothing illegal about selective map drawing,” Johnson said. “Whenever the term gerrymandering, which has a negative connotation, is used, it simply means the person making the comment doesn’t like the plan. Saying that a plan is gerrymandered means nothing. When I hear that, I ask the person to ‘Consider the map and explain what you would like changed.’”
Johnson took exception to the suggestion that his firm was profiteering by assisting incumbent elected officials in cities changing over to ward systems solidify their political advantage,
“You are implying that all of these cities have turned to us because we will do anything they want for money,” said Johnson. “That is not true. They come to us because we know the law and we will give them a map and electoral plan that will prevent them from being sued. I do not believe that is selective map drawing.”
He continued, “Every city in the state has hired my firm to do this work except one that allowed the plaintiff’s demographer to draw their lines and one other city that did the work in-house. If we were victimizing these cities, do you think they would hire us? All of our plans are drawn fully compliant with legal requirements for drawing maps and the Voters Rights Act. That is proven by the fact that we have drawn hundreds of plans for local districts, every one of which withstood legal challenges to them.”
With regard to the conflict of interest inherent in incumbent council members having the ultimate approval of how districts are drawn when those district lines will have an impact on their prospects for reelection, Johnson said such decisions were by the very nature of government the purview of the existing elected leadership. “Who else would make the decision?” he asked.
Redlands will at some point in the next two months ratify one of the maps under consideration, so to have it in place for the 2018 election when three council positions will be at stake. The other two council slots will be contested in the 2020 election.
Redlands spokesman Carl Baker told the Sentinel the city is paying National Demographics $20,800 for its services.
In the meantime, the cities of Fontana, Hesperia and Chino Hills have retained National Demographics Corporation to assist them in their purposed adoption of ward-based electoral systems.

JCPenney West Coast Operational Headquarters Will Relocate Here

What will be a loss to Orange County and the national economy will redound as the Inland Empire’s gain, as JCPenney will close between 130 and 140 of its stores by mid-year and move its Southern California warehousing from Buena Park to warehousing in either San Bernardino or Riverside County.
The JCPenney chain went into a disastrous financial plunge in 2012 and 2013 after former CEO Ron Johnson initiated what he attempted to sell as a corporate reinvention, which ultimately drove its traditional customer base away. In 2013, Johnson was ousted in favor of Mike Uhlman, who sought to reestablish the company’s place in the retail industry. Uhlman was replaced in 2015 by Marvin R. Ellison, who yesterday said JCPenney is taking “aggressive action to better align our retail operations for sustainable growth.”
The department store chain said it is initiating a voluntary early retirement program for about 6,000 eligible employees age 55 or over. It will close out its least profitable stores, representing somewhere between 13 and 14 percent of its locations. Those stores account for less than 5 percent of its total annual sales.
JCPenny currently has 1,014 locations in 49 U.S. states and Puerto Rico, 79 of which are in California.
JCPenney’s Buena Park distribution center, the hub for JCPenney’s West Coast operations, will be shuttered and likely sold. The company will relocate its warehousing and distribution center eastward into preexisting warehouses that can accommodate those facilities. Over the last two years, there has been considerable construction of warehousing and logistic facilities in San Bernardino County.
The new distribution hub’s prospective location was not specified.

Forum… Or Against ’em

By Count Friedrich von Olsen
Dear readers, whenever you begin to despair about how badly run and corrupted our public institutions here in San Bernardino County are – and they are pretty bad, actually – you can comfort yourself that at least this isn’t North Korea…
Kim Jong Nam is, or was, the half brother of North Korean leader Kim Jong Un. Kim Jong Nam was the product of a not-so-secret relationship between North Korea’s second-generation leader, Kim Jong Il, and his consort, an actress named Sung Hye Rim. Kim Jong Nam was actually older than Kim Jong Un, and in a lot of places that would have made him the heir to the kingdom. It didn’t work out that way, though. Kim Jong Un scratched his way to the top of the North Korean heap. He has done so by a whole lot of palace intrigue, including killing a bunch of people he thought might get in his way. And while you would think that Kim Jong Un might have drawn the line, when it comes to murder, at his own flesh and blood, that is not the case. He knocked off his uncle a few years back…
My contacts in South Korean intelligence tell me that Kim Jong Un put out a “standing assassination order” for his older half brother more than four years ago. It appears someone has made good on that contract…
On February 13, Kim Jong Nam was in a Kuala Lumpur airport terminal. In a well-executed hit, a North Korean agent managed to dust or smear on his skin a dose of VX, a lethal neurotoxin. Kim Jong Nam slumped in the chair he was in, in considerable pain, but it did not last long. Medical care was summoned, but he died in an ambulance en route to a hospital. Malaysian authorities confirmed that he died from VX exposure and that they believe eight North Koreans in their country were involved in the attack…
Kim Jong Nam was a lot smarter than his younger brother. Kim Jong Nam could speak several languages and had lived in multiple places around the world, enabled by an endowment from his father, who had chosen to elevate Kim Jong Un as his replacement. Kim Jong Nam accepted his brother’s ascendancy, but he made some statements here and there, based upon his more worldly view, one of which expressed doubt at the wisdom of North Koreans consenting to be ruled by a third generation member of the same family, that is, his brother. He seemed to think that North Korea might be better served by a more civilized democratic process in which leaders are chosen on the basis of their ability rather than their parentage. In North Korea, that is heresy, and Kim Jong Nam was given the medicine – some VX jelly – North Korea reserves for its heretics…

It May Take “Blood & Guts” To Save Patton’s Needles Cabin

“Do not regard what you do only as ‘preparation’ for doing the same thing more fully or better at some later time. Nothing is ever done twice. There is no next time. This is of special application to war. There is but one time to win a battle or a campaign. It must be won the first time.” -General George S. Patton

By Ruth Musser-Lopez
Currently, in Needles, California, there is a “battle” going on over whether or not to preserve a small quaint cabin along Route 66 that is believed to have been the quarters of General George Smith Patton, Jr. while he was in charge of a WWII army training operation in 1942. Like Patton said, there is going to be only one battle. Either the cabin is preserved or it’s demolished—there is but one time to win or lose.
A little known fact about General George S. Patton’s World War II practice maneuvering operation within the California-Arizona Maneuver Area is the use of Needles as a division cantonment, with troops arriving beginning April 11, 1942. Yet live some elderly citizens of Needles who are able to recall the important role Needles played in World War II when a surge of troops, supplies and equipment palpitated through the desert “body” at which time Needles headquartered the “brains” of the training operation. These now aging Needles residents were in their youth at the time but can clearly remember those glory days and how Patton’s colorful First Armored Corps and Patton himself, dominated the town before departing for North Africa in the Operation Torch campaign in November 1942.
During WWII, a reporter, after hearing a speech where Patton said that it took “blood and brains” to win in combat, began calling him “blood and guts.” The nickname would follow him for the rest of his life with soldiers under his command complaining “our blood, his guts.” Nonetheless, he was known to be admired widely by the men under his charge. Now, some think it may take “blood and guts” to save the quaint cabin on Route 66 in Needles that Patton was said to have requisitioned as his living quarters.
On January 15, 1942, just a little over a month after the United States entered the war, Patton was appointed commander of I Armored Corps, making him the most prominent figure in the U.S. armored division. Within the month of his appointment to commander, Patton established the Desert Training Center at Desert Center, California and it wasn’t long before he was in charge of both the blue and red training armies he established there, according to local sources.
It is widely held that Patton’s training exercise was in the Imperial Valley and it is said that Patton chose a 10,000-acre expanse of desert area about 50 miles southeast of Palm Springs. However, what appears to be relatively unknown is that the Desert Training Center (DTC) established early in 1942 was expanded by Patton rapidly thereafter. A much wider 18,000 square mile area of operation known as California-Arizona Maneuver Area (CAMA) was actually used to train troops for mechanized desert warfare.
Part of Patton’s First Armored Corps trained in the Needles area during the period between April to August 1942 and then departed to participate in the invasion of North Africa which occurred in November 1942.
As a native Californian who knew the area well from his youth and military training during the 1930s, Patton was responsible for selecting the site and in his words, “In the whole 12,000,000 odd acres the only restrictions as to movement are those imposed by nature.”
Tent camps near Needles included Camp Ibis and Camp Essex (later named Camp Clipper), both located along Route 66 west of Needles. The camps were situated so that each unit could train individually without interfering with the other, and near the end of its training period the unit would participate in a corps (two divisions or more) exercise in a maneuvering area at Palen Pass.
Local Needles oral history suggests that Patton trained his troops by simulating warfare in the desert pitting a “Red Army” and “Blue Army,” both of which he controlled, against each other.
Patton’s advance team also selected airfields, hospitals, supply depots and sites for other support services as well. Not highly publicized is that Needles was selected as the site for support services.
Though the Needles airport outside of town is listed as one of the airfields commandeered for use by Patton’s army, the commandeering, construction and use of other facilities in the community of Needles is not well known. According to local oral history, however, the Needles railroad depot was an important army supply depot and the location of where the Vista Colorado Elementary school is today was then the site of a Mobile Army Surgical Hospital (MASH) unit which included a helicopter landing port and housing for medics, doctors and nurses. Patton is reported to have spent a good deal of time in Needles from where he dispatched orders and other communications from an office at the “El Garces” train depot. He reportedly communicated with the Mexican consulate and government from the El Garces office using a local Needles High School valedictorian then working for the railroad to assist him with the interpretation.
Using Needles as a base, he kept a B-17 bomber at the Needles Airport for his own use, which he flew between landing fields in the maneuvering areas. Patton is said to have been responsible for having enlarged the Needles airport by adding onto the length of the landing strip. The Needles airport was decommissioned after the war.
The cabin said to have been requisitioned by Patton for use as his living and sleeping quarters is located on the opposite side of Route 66 from the loading platforms along the Santa Fe railroad track. Patton would have been able to monitor supplies and equipment being loaded and unloaded from that platform. The cabin is also centrally located on a direct route to the Needles airport and close to his office at the El Garces also accessed via Route 66 going the opposite direction. Prior to the construction of Interstate 40 in the 1960s, Patton would have been able to directly access the barracks and MASH unit via jeep on a direct desert route or from the train depot via Army Road.
This privately owned cabin is now under attack by the City of Needles, which plans to demolish it and the extensive salt cedar root mass next to and under it. City officials claim the salt cedar limbs are damaging city equipment and interfering with their effort to conceal the eyesore in the city yard by constructing a chainlink “privacy” fence. At least one individual working for the Chamber of Commerce was glad to hear it would be demolished, as he views the cabin as a blemish upon entering the community from the east end. Others do not share his view and hope the cabin will be rehabilitated and used as a point of interest to attract tourism. The city demolition work on private land would be completed with taxpayer dollars using between $16,000 to $19,500, which some say could be better utilized preparing the cabin as a key road side attraction for tourism in town.
As the war was winding down, the 10th Corps directed the last maneuvers held at the CAMA. At midnight on April 30, 1944, training at the DTC ended and with it a significant phase of the epoch of World War II.
By May of 1944, CAMA was closed and mobile tent units, equipment and other materials from the operation were relocated leaving behind for the most part rock alignments, paths, tank tracks here and there, empty shells and an almost unnoticeable footprint of the historic war operation. It is a rare find to come across an actual “cabin” where Patton is said to have sequestered and lucky for Needles to have this cherish-able relic that could potentially draw more tourism income for a community that has been in recent financial hardship. Let’s hope the City of Needles council has a “heart” and saves it.

Defense Seeks To Exploit Reluctant Witness In Week 8 Of Colonies Trial

By Ruth Musser-Lopez & Mark Gutglueck
In the eighth week of the Colonies Lawsuit Settlement Public Corruption Trial, defense attorneys pushed to build on the momentum they had appeared to pick up last week when a key prosecution witness bridled in that role and frustrated the prosecutor seeking to elicit from him the answers he had provided to previous grand juries in 2009 and 2011, as well as in statements made to district attorney’s office investigators in the 2009-2010 timeframe.
That witness, Matt Brown, had been the chief of staff to former county supervisor Paul Biane, who is now a defendant in the case along with Colonies Partners co-managing principal Jeff Burum, former sheriff’s deputies union president/former assistant assessor Jim Erwin and Mark Kirk, who was the chief of staff to former supervisor Gary Ovitt.
Articulated in a 29-count indictment handed down in May of 2011 are prosecutors’ contentions that that Erwin had assisted Burum in extorting Biane and another former member of the board of supervisors, Bill Postmus, to support a $102 million settlement of a lawsuit brought against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Prosecutors maintain Burum was able to wring the $102 million from the county and its taxpayers through the use of blackmail, threats and intimidation prior to the vote, which took place in November 2006, and that Burum, in conjunction with the Colonies Partners’ other managing principal Dan Richards, delivered $400,000 in
bribes to Postmus, Biane, Kirk and Erwin after the vote. Those bribes, prosecutors say, were disguised as separate $100,000 donations to political action committees controlled by Biane, Kirk and Erwin and two $50,000 donations to two political action committees controlled by Postmus. The settlement was supported by Postmus, Biane and Ovitt and was opposed by then-supervisor Dennis Hansberger and supervisor Josie Gonzales. Neither Ovitt nor Richards was indicted; the indictment alleged the $100,000 had been delivered to Kirk for delivering or influencing Ovitt’s vote in favor of the settlement.
Brown created the San Bernardino County Young Republicans political action committee, which prosecutors allege was actually controlled by his boss, Biane. The San Bernardino County Young Republicans committee was the recipient of one of the $100,000 contributions from the Colonies Partners which prosecutors maintain were bribes.
But last week, nearly eight years after Brown made that decision to cooperate with investigators and betray Biane, who had elevated him to the position of chief of staff in his office and whom Brown in his testimony described as his best friend, Brown came across as reluctant to fulfill the role the district attorney’s office had taken as an article of faith he would live up to. To dozens of questions put to him by Supervising Deputy California Attorney General Melissa Mandel, Brown responded that he did not know or that he could not remember. Generally, the questions being asked of him were ones he had fielded before, during his appearances before two grand juries, one in 2009 and another in 2011. It was at least partially on the strength of those previous statements that the indictment had been handed down and prosecutors had expected that he would essentially recapitulate his earlier testimony, this time in front of the two juries that are hearing the case.
Brown’s comportment in the witness box under direct examination was not a total loss for the prosecution team, as Mandel was on occasion able to salvage part of the narrative from Brown she had hoped to have him freely and fluidly provide the jury by having him read transcripts of his grand jury testimony or statements to investigators to refresh his recollection before she would then direct questions to him. By quoting passages of that testimony or those statements, she was able to prod him into grudging answers that paralleled his previous testimony that was in some measure damaging to the defendants. But that process was both tedious and awkward and in some of his responses and remarks Brown was able to express or cast doubt with regard to the complete accuracy of his previous statements. Moreover, by his demeanor, Brown was outwardly conveying that he was being forced to testify contrary to his own volition. This, combined with his assertions he vouchsafed in his testimony that he been bullied and intimidated by the district attorney’s investigators, conveyed the impression that he might have previously been telling investigators what they wanted to hear rather than what he knew or believed to be the truth. Mandel had been so frustrated by Brown’s intransigence that at the close of his first day of testimony after he and the jury had exited the courtroom, Mandel told Judge Michael Smith that “This is a very different Mr. Brown than we expected to see. Obviously, something has gotten to him.” Smith concurred, stating, “I’m making a finding he [Brown] is being intentionally evasive,”
For the two days Brown was on the witness stand last week, he was subject exclusively to direct examination by Mandel, relegating the lawyers for the defendants into the limited role of raising sporadic objections to Mandel’s questions with regard to either form or substance, which Judge Smith only intermittently sustained. Thus, defense attorneys arrived in Judge Smith’s courtroom on Tuesday morning, following the extended Presidents Day Holiday, chomping at the bit and loaded for bear, anxious to blast the crack that had been revealed in the prosecution’s armor into a gaping hole. Yet, their cross examination would require a degree of finesse, forbearance and agility, as the aggressive line of questioning that had been under preparation for months was now deemed inoperative in light of the Brown’s bearing and the apparent hostility he had evinced on the stand toward Mandel.
Indeed, Brown’s tenure as a witness at the trial would evolve to feature what can be described as surreal overtones, as the prosecution on occasion found itself seeking to impeach its own witness while the defense filled the role of seeking to uphold the credibility of an individual who had been instrumental in assisting investigators and prosecutors in assembling the case against the accused.
Mandel concluded her direct examination of Brown Tuesday morning by using his previous statements extrapolated from his grand jury testimony to impeach another prosecution witness, Tim Johnson, also a Biane staff member whom Brown had overseen and who succeeded Brown as chief of staff when Brown departed Biane’s office in 2010 after it was discovered he was cooperating with the district attorney’s office investigators in trying to ensnare his boss. Defense attorneys were then free to cross examine Brown.
Stephen Larson, the lead defense attorney for Jeff Burum was able to elicit from Brown that he was essentially unconvinced, despite the suggestions of district attorney’s office investigators to the contrary, that there had been anything improper or illegal about the $100,000 contribution his San Bernardino County Young Republicans political action committee received in June 2007 from the Colonies Partners. Larson doubled down, getting Brown to say as well that he did not believe there was anything illegal about the county’s $102 million settlement with the Colonies Partners.
Whereas Brown’s spotty memory of his testimony and statements to prosecutors and with regard to the events now going back more than a decade greatly hampered Mandel, Larson was able to capitalize, to a certain extent on it, seeking to show the jurors that there was nothing unnatural, forced, falisfied or contrived about his memory loss, since his last appearance before a grand jury in the case came nearly six years ago in 2011, his testimony before a previous grand jury in 2009 was nearly eight years past and that the underlying civil case between the county and the Colonies Partners occurred over a period going back 11 to 15 years ago. Larson pointed out that as early as 2009 Brown was telling investigators that there were events relating to the matter and the events leading up to the settlement of the case in 2006 he could not recall at that time.
“Your memory did not improve over time, correct?” Larson asked.
“Correct,” Brown said.
What was revealed was that Brown was interviewed/interrogated by district attorney’s office investigators, who were in the main led by Hollis Randles, nine times in person and 12 times over the phone from April 2009 through April 2010, totaling 20 hours of recorded conversations. Many of those contacts with the investigators related to efforts by Brown to tape record Biane, and on at least two occasions, Postmus. All told, between September 2009 through April 2010, Brown compiled 87 surreptitiously recorded conversations totaling about 26 hours, most of those with Biane. At this point it is not clear exactly what is on those tapes and whether Biane or Postmus made any statements implicating themselves. There have been vague indications that the effort by Brown proved futile, or essentially futile, as evinced by his testimony that he was telling Randles at multiple stages of his undercover work that there was not any substance to the suspicions and accusations against Biane and Postmus.
Larson referenced a February 8, 2010 interview with Randles, in which Brown said there had been no bribe offered by Burum in return for votes to approve the settlement, what was termed a quid pro quo.
“You told him that many times?” Larson asked.
“Yes,” Brown said.
When Larson attempted to push beyond what Brown’s thoughts and perceptions were and get to what substance was on the tapes and whether Biane and Postmus had made incriminating statements or not, he was stopped short. Larson asked Brown what Postmus and Biane told him. Mandel objected, citing those statements as hearsay. Judge Smith sustained the objection. Smith’s second such ruling to that effect had a visible impact upon Larson, whose countenance and body language registered perturbation, a manifestation not typical in the patrician Larson. Shortly thereafter, with the jury no longer present, Larson in strong terms registered his protest at not being able to explore before the jury the tape recorded evidence Brown had accumulated at the behest of investigators, asserting that Postmus and Biane telling Brown there was never any quid pro quo was a key element of the defense he is mounting on behalf of his client and that under the circumstances it was evidence that is admissible. Larson, who was a federal judge before returning to private practice seven years ago, was able to soften no soap with that argument and Smith upheld his ruling that as hearsay, the evidence would not be presented to the jury.
Larson, in his further cross examination of Brown, focused on an area already raised during Mandel’s direct examination of Brown, much to her chagrin, pertaining to the fashion in which the investigators, in particular lead investigator Hollis Randles, browbeat and sought to intimidate him, while seeking to extract from him statements to further the case they were attempting to build, despite Brown’s repeated assertions that the words they were laboring to place in his mouth were not true.
“They were trying to get you to change your answers, correct?” Larson asked Brown.
“Correct,” Brown said.
Though Larson is representing Burum, he forayed into areas of the case pertaining to the other defendants nearly as much as he dwelled on the charges against his own client. One of these was the prosecution’s contention that Biane had secretly controlled the San Bernardino County Young Republicans PAC, one of the recipients of the $100,000 contributions made by the Colonies Partners in 2007 which prosecutors have characterized as disguised bribes.
Brown acknowledged that Brown had control over the political action committee along with him and another Biane staff member, Tim Johnson, but indicated there was nothing secret about it and that Biane had openly and actively raised the majority of money brought into the PAC, which is an acronym for political action committee. Brown said Biane was completely open about that activity.
Larson also succeeded in getting Brown, whose idea it was to create the San Bernardino County Young Republicans club and its accompanying PAC, to controvert another element of the prosecution’s theory.
“It wasn’t created to receive bribe money, was it?” Larson asked.
“No,” Brown said.
As to the $100,000 PAC contribution, Brown said he received a phone call from Colonies’ co-managing partner Daniel Richards in 2007 alerting him to the contribution and that Richards said he wanted to personally inform Biane of the contribution. This had significance because Mandel earlier made much of the consideration that Biane had not expressed surprise about the large scale donation, implying that Brown had an expectation of receiving the money in return for his vote in favor of the settlement. Brown’s statement seemed to elucidate that Richards had already told him it was coming.
Brown also told Erwin’s attorney, Raj Maline, he repeatedly denied there was any wrongdoing involving the Colonies’ settlement and the PAC contributions.
Biane’s attorney, Mark McDonald, succeeded in having Brown state that Biane, who had professional experience in the real estate market, was able to rely upon his own knowledge with regard to the decision-making process regarding the Colonies Lawsuit settlement, at least insofar as land values were concerned.
After the defense attorneys concluded their initial round of cross examination on Wednesday, Mandel on redirect sought to limit the damage, coming back at Brown by focusing him on elements of his previous testimony before the grand juries that clashed with his current estimation that the settlement was kosher and there was nothing illegitimate or illegal about the Colonies Partners providing $400,000 to those involved in approving the $102 million payout or Kirk and Erwin, who influenced those who approved it.
Referencing Brown’s 2009 testimony before the first grand jury to hear the matter, Mandel succeeded in getting Brown to acknowledge he had testified at that time that “I believe there was something that was inappropriate about that settlement.”
Mandel revisited other elements of Brown’s previous testimony and statements, including his statement that the Colonies Partners’ use of the press in the months and weeks before the settlement was reached was “unusual” and used to stampede the board of supervisors into a settlement. When Brown said he did not recall saying that, Mandel read from his testimony in which he indicated that the Colonies Partners used press accounts to propound that the county was potentially on the hook for $300 million in damages in the lawsuit. “It was only a couple of weeks time that they went from $300 million to when they settled for $102 million,” Brown had said “Big show; they settled for a third. I never heard that $300 million figure until I saw it in the paper.”
Mandel asked, “So your testimony was that this use of the press was a public relations show to cover the settlement?”
“Yes,” said Brown. “It appears to be my opinion at the time.”
Mandel asked Brown if he remembered that “during the 2006 timeframe there were public statements by Mr. Burum” to the effect that he [Burum] “would fire them [Biane, Postmus and the rest of the board of supervisors] if they worked for him?”
Brown said he did.
Mandel asked if it was Brown’s “understanding that Mr. Biane would continue to receive financial support from Mr. Burum if he voted against the settlement?”
“I don’t recall,” Brown said.
Mandel then boldly sought to impeach Brown over his assertion that he had never believed nor ever told the investigators or the grand jury that bribery involving the board of supervisors in conjunction with the settlement of the Colonies Partners’ lawsuit took place.
“You were asked a lot of questions about whether a quid pro quo occurred,” Mandel said. “You said ‘No.’ Is that right?”
“Yes,” Brown responded.
“That was your opinion,” Mandel said. “You told Bud [i.e., Hollis] Randles there was never any quid pro quo regarding that contribution?”
“Yes,” said Brown.
“This was specifically about the $102 million?” Mandel asked
“Yes,” said Brown.
“You were bewildered why they were not understanding your answers, right?” Mandel asked.
“I did not understand why they kept asking me,” Brown said.
Then Mandel sprung. “Five months earlier, to the grand jury, you testified that you believed there was a quid pro quo.”
“I don’t recall that,” said Brown.
Mandel then referenced page 78 of Brown’s 2009 grand jury testimony to demonstrate that he had said just that.
Brown endeavored to recover from Mandel’s snake bite.
“It was only my opinion,” Brown said. “There was no factual basis to prove it, but I believed there was something inappropriate regarding that settlement. I believed that there was something illegal regarding Mr. Postmus and Mr. Burum.”
Brown acknowledged that he testified as to the existence of a quid pro quo to the grand jury. “Then you went on for about three-and-a-half pages as to why you thought there was a quid pro quo,” said Mandel as Brown read over his grand jury testimony. “You testified that others had been receiving money, others that were a part of the settlement. That concerned you. You then did proceed to list a number of factors that caused your concern and then your conclusion that there was a quid pro quo. Did you then testify to the grand jury about your basis that there was a quid pro quo?”
“I haven’t read it yet,” said Brown.
“Okay, go ahead and read,” said Mandel. When Brown concluded reading, she said, “Did you list a number of factors that brought you to that conclusion?”
Brown responded, “Not specific factors.”
“But did you then go on that there was a number of factors that led you to believe that there was a quid pro quo?”
“Correct,” said Brown.
“You knew there was the appearance of a payoff?” said Mandel.
“Yes,” said Brown.
During their next round of cross examination of Brown, the defense attorneys worked to reestablish that Brown’s statements in the past implicating the defendants reflected only, on one hand, his former opinion that was informed by rumors or, on the other hand, his efforts to placate his interrogators to get them off his back.
Larson on Wednesday seized upon Brown’s own words, getting him to reassert that he had told district attorney’s office investigators there was “no factual basis” to support his once-stated opinion that “something illegal happened.”
Larson pushed further on the theme of rumors having colored Brown’s thinking early on during his interaction with the investigators and his decision to cooperate with them and accede to their request that he employ the audio recording device to target Biane and Postmus. One such rumor, he told the jury in response to Larson, was one pertaining to Judge Peter Norell’s inappropriate contacts with the Colonies Partners at the Red Hill County Club. Norell had been the judge who oversaw the early stages of the civil litigation between the Colonies Partners and the county.
“Later, I found out that the rumor was not true,” said Brown.
With regard to Brown’s statements before the grand jury to the effect that the Colonies settlement was tainted by graft or bribery, Larson asked, “You speculated before the grand jury?”
“Yes,” said Brown. “I think it was my opinion and I trusted my gut feeling.”
“It turned out to be wrong?” Larson asked.
“Yes,” said Brown.
“And Ms. Mandel knows that is wrong?”
Brown did not have time to answer before Mandel sharply objected and Judge Smith sustained her objection.
Before Brown was dismissed pending being recalled, Mandel had one further go-round with him, this time outside the presence of one of the two juries hearing the case. Erwin’s guilt or innocence is to be determined by one panel. The other is to decide the fate of Burum, Biane and Kirk. This is because some earlier statements by Erwin are admissible only against him and not against the others.
With Erwin’s jury present in the courtroom and the other panel dismissed, Mandel questioned Brown about a conversation he had with Erwin in May of 2007 in the café located on the ground floor of the county’s administrative headquarters. In 2009, Brown told the grand jury that in that exchange, Erwin told him he had acted as a go-between for Burum during the Colonies settlement negotiations with the county, and that Burum had hired private investigators to rummage through Biane’s trash. Brown said that Erwin maintained the private investigators found numerous credit card statements that were past due and that Biane was in arrears on his bills. Brown had testified that Erwin claimed he had convinced Burum to not send out to the county’s voters mailers that made use of the information the private investigators had gathered as part of the campaign Burum was waging against Measure P, which was a 2006 countywide ballot measure sponsored by Biane to increase supervisors’ salaries from $99,000 per year to $151,000 annually.
The information about Erwin and Burum using private investigators to dig up derogatory information about Biane dovetails with accusations contained in the indictment, which holds that Burum and Erwin sought to extort Postmus and Biane into supporting the settlement through blackmail and threats before the settlement was arrived and that Burum then kicked back to Postmus, Biane and Kirk after the settlement was voted upon.
“He told me Jeff Burum had hired a private investigator to dig through Paul’s trash and they found numerous credit card bills,” Brown said. Brown said that Erwin said Biane needed the added income Measure P would offer because he couldn’t pay his bills and that as part of the campaign against Measure P Burum wanted to “expose Paul’s personal debt.”
When Erwin’s attorney, Rajan Maline, followed up on those statements, Brown told him Erwin did not show him and he never actually saw the mailers. Maline also got Brown to say that he did not find Erwin’s claim to be wholly believable.
Maline sought to reinforce that by using the courtroom’s overhead projector to show an aerial photograph of Biane’s home at the end of a cul-de-sac located in secluded neighborhood in the foothills of north Rancho Cucamonga. In doing this, Maline was attempting to illustrate for the jury that gaining access to the Biane household’s trash without being noticed would have been a challenge. Maline asked Brown if Biane had a dog at that time and Brown said Biane had a boxer.
An illuminating portion of testimony during Brown’s last day on the stand came when he was asked about the effort put on by the team supporting Measure P to ensure the initiative’s passage. Biane and Brown were the major components of that team. Brown testified that in addition to providing the argument in favor of Measure P, which concentrated not on the salary increase for supervisors that it entailed but rather its three-term limitation provision, they had also sought to write the argument against Measure P. They intended to offer a weak argument against the measure but were thwarted when a committee that was sincerely against the measure submitted an argument against it, and the county registrar of voters office held a coin flip to decide which argument would be published in the 2006 sample ballot delivered to voters countywide. As it turned out, Biane and Brown lost the coin flip. Nevertheless, Measure P did pass and Biane got his $52,000 per year raise.
Briefly testifying on Wednesday was Colin McKenzie, who was once the treasurer for the sheriff’s deputies union, the political action committee for which was a recipient of in excess of $400,000 from the Colonies Partners over the years. McKenzie was unable to explain why a state campaign finance reporting document the union filed with the state and the county showed Patrick O’Reilly, with his last name misspelled O’Riley, as an officer in the political action committee associated with Biane, the San Bernardino Young Republicans.
Late Wednesday and all of Thursday, Former San Bernardino County Administrative Officer Mark Uffer, who had occupied that position when the lawsuit settlement with Colonies Partners was effectuated, testified. His questioning was handled by another member of the prosecution team, San Bernardino County Deputy District Attorney Lewis Cope.
Uffer shored up a portion of the prosecution’s theory pertaining to Kirk, essentially that Kirk exercised something akin to a Svengali-like hold over Ovitt, such that he had influenced him to vote in favor of the lawsuit settlement. Uffer said that Kirk “drove the agenda” in Ovitt’s office, and that Ovitt passively went along with Kirk’s dictates, despite the consideration that Ovitt was actually Kirk’s boss.
“Mr. Kirk essentially dominated the office,” Uffer said, adding it was “always uncomfortable to go into that office because you couldn’t deal with Ovitt directly.”
The most dramatic passage of Uffer’s testimony came when Cope asked about a change in the behavior of Bill Postmus in 2005. Uffer had already said that upon his first going to work as the administrative officer in 2004, Postmus was engaged and involved. He noted that this changed dramatically in 2005. The change, involving extraordinary behavior and a radical alteration in his demeanor, was readily apparent, Uffer testified, upon Postmus’ return from a China trade mission in late 2005.
He was called to meet with Postmus, Uffer said, and he walked from his office to Postmus’s office and waited outside the door because Postmus had yet to arrive at the government center. Postmus came up to the fifth floor and walked past Uffer and into his office without greeting him, Uffer said. Postmus was “somewhat disheveled” Uffer reported. “His hair was all messed up, one shirt tail was out. He had a handful of cigars. He smelled bad, like he hadn’t bathed in awhile, and he was unshaved,” Uffer said. As Uffer followed Postmus into his office, Postmus walked around his desk, threw the cigars he was carrying into a humidor, and sat down. Without pausing for niceties, Postmus blurted, “We have to settle this Colonies lawsuit right away,” Uffer said. Uffer said Postmus did not give any explanation for the ugency.
“I can only describe it as a bizarre encounter,” Uffer said. From that point on, Uffer said, Postmus came across as “consumed” with having to effectuate the settlement.