By Ruth Musser-Lopez and Mark Gutglueck
Testimony during week nine in the Colonies Partners Lawsuit Settlement Public Corruption Case ranged from a version of events by former Fourth District San Bernardino County Supervisor Gary Ovitt which was in much of its aspect favorable to the defense to the sandwiching accounts provided by the county’s one-time top administrator, Mark Uffer, and one of Ovitt’s board colleagues, current Fifth District Supervisor Josie Gonzales, that were far more damaging to the accused.
In the case, Rancho Cucamonga-based developer Jeff Burum is alleged to have extorted former supervisors Bill Postmus and Paul Biane to obtain their support in the narrow 3-2 November 2006 vote conferring a $102 million payment on his company to settle litigation that had been dragging on for four years. That litigation pertained to flood control issues at the Colonies at San Antonio residential and the Crossroads Colonies commercial subdivisions in northeast Upland, including a dispute as to whether the county still had the right to use some of the property for a massive water retention basin, based upon flood control easements the county had recorded against the property in 1933, 1934 and 1939. After the lawsuit was settled, Burum’s company, the Colonies Partners, provided a $100,000 donation to a political action committee prosecutors say was controlled by Biane, and separate $50,000 donations to two political action committees Postmus had his political associates create for him. Prosecutors allege those donations, provided in the spring and early summer of 2007, were bribes, as was a $100,000 donation to a political action committee set up by Mark Kirk, who had been Ovitt’s chief of staff. Ovitt cast a third and crucial vote to approve the settlement, and prosecutors maintain Kirk influenced Ovitt in that vote and was rewarded by Burum with the kickback disguised as a political donation for delivering that vote. In the same March-to-June 2007 timeframe, the Colonies Partners also provided $100,000 to a political action committee created by Jim Erwin, a former sheriff’s deputies union president, who had been one of Postmus’ political associates and who prosecutors allege assisted Burum in extorting Postmus in the months prior to the settlement vote, which was one of Postmus’s last acts as a supervisor before he acceded to the post of county assessor. Postmus, who would later say he had a “love-hate” relationship with Erwin, for nine months employed Erwin as assistant assessor. Postmus has already pleaded guilty to a bevy of political charges lodged against him; the guilt or innocence of Burum, Biane, Kirk and Erwin is what is at issue in the ongoing trial.
On Monday, Mark Uffer, who from 2004 until 2009 held the position of the county’s top staff member with the title of county administrative officer, returned to the witness stand after having been questioned late Wednesday and all of Thursday the previous week, most of that under direct examination. In that previous testimony, Uffer had bolstered certain elements of the prosecution theory, testifying that there was a push by Postmus and Biane to settle the lawsuit and that Postmus’ efforts in this regard intensified in the aftermath of a trade exposition trip he had taken to China in late 2005 which had also been attended by Burum. He had also testified that Kirk, with whom he had a personality conflict, dominated Ovitt’s office and had an uncommon degree of influence over Ovitt.
Raj Maline, Erwin’s attorney, on Monday morning made efforts to explore what he suggested by the tones of his questioning to have been Uffer’s failure to have reported property he had purchased in 2006 or 2007 when he had filled out a statement of economic interest for that period. Maline took up that line of questioning because one of the charges against his client is having failed to report gifts provided to him by Burum in the form of a wristwatch, airline travel and hotel accommodations during a January 2007 trip to New York City and Washington, D.C. Maline repeatedly sought to have Uffer acknowledge that he had acquired property in 2007 and had failed to disclose that acquisition in a timely manner on the disclosure forms public officials are required to complete. The prosecution objected to the questions and Judge Michael Smith, before whom the case is being tried, sustained those objections.
Maline explored the more and more frequent indications in late 2005 and lasting into 2006 that Postmus was descending into drug addiction and he pressed Uffer on why he had not taken some action or at least reported to law enforcement his suspicions.
Uffer acknowledged that there was talk “among county counsel and board members” about Postmus’ increasingly erratic behavior. “Everybody did not know what to do about it,” he said. “Everyone was concerned about his behavior.”
“What did you decide to do?” Maline asked.
“There was no proof that he was doing drugs,” Uffer said. “There was just suspicion and rumors.”
Maline seized upon Uffer’s previous experience as a hospital administrator, stating that Uffer’s “unique position” as a healthcare honcho would have allowed Uffer to recognize “that bizarre behavior was drugs.”
“It could have been stress or anything,” countered Uffer.
“But his bizarre behavior…” said Maline
“His behavior did change over the years,” Uffer acknowledged. “We were all concerned.”
“So, the consensus was that everyone knew, but you decided not to do anything about it,” Maline said, challenging Uffer.
“He [Postmus] is independent,” Uffer shot back. “I had no authority over him. There was no concrete evidence that he was doing any drugs. His behavior was just odd. I am not a policeman and I had no authority to do anything about it.”
Maline established that Uffer had attended close to all, if not all, of the board of supervisors’ meetings. When he testified supervisor Josie Gonzales was “never in favor of settling” the lawsuit by voting to approve some of the evolving lawsuit settlement proposals, Maline produced a record of one of the closed sessions, called a closed session form, to show that Gonzales had voted, on April 1, 2005, to accept a settlement proposal calling for the county paying the Colonies Partners $22 million for the basin on the Colonies Partners’ Upland property and throwing in 300 acres of surplus property the county had in north Rancho Cucamonga.
Uffer conceded that Gonzales indeed “appeared to be in favor of making that offer,” but said the offer “was not reportable” without “county counsel approval.” County counsel is the county’s stable of in-house attorneys.
Further documentation was shown to Uffer indicating Gonzales had cast votes in closed sessions of the board of supervisors four days later, On April 5, 2005, and again a week after that, on April 12, 2005, giving tentative approval to the $22 million and 300 acre settlement.
“That’s what the form says, but I don’t recall it being that way,” said Uffer.
“When you testified before the Grand Jury, the message that you sent was that, ‘Oh, Josie was not in favor of it from the beginning,” said Maline. “You just don’t remember being at those meetings?”
“This was years after,” said Uffer. “The Grand Jury was in 2011. As I sit here today, I think she was never in favor of the settlement. I don’t remember her voting in favor…I just don’t.”
Uffer was then asked about the decision rendered by Judge Christopher Warner when the matter went to trial in June of 2006 and the catalog of costs the Colonies Partners had sustained when the project was suspended while the litigation between the county and the Colonies Partners dragged on. That catalog, paid for by the Colonies Partners, is known as the Waldron appraisal. Warner, who heard the matter as a bench trial, meaning there was no jury and he rendered the verdict, made a finding in favor of the Colonies Partners, but had not addressed the issue of damages’ monetary value. Warner relied upon the Waldron appraisal in reaching his verdict.
When Maline suggested Uffer had not read the Waldron appraisal, Uffer said, “We all read it, but we just disagreed.”
“Would you agree that after Judge Warner’s decision, that was scathing, that the Colonies was in a stronger bargaining position?” Maline asked.
“It appears that way if you read the decision,” said Uffer.
To questions by Kirk’s attorney, Peter Scalisi, Uffer said he worked with people he did not get along with, such as Kirk. With regard to Ovitt, Uffer said he “was passive. He would speak only when he needed to. He was a quiet man.”
“You found him to be an honorable man?” asked Scalisi. “I thought so,” said Uffer.
“He was honest?” Scalisi asked.
“In retrospect, not so honest,” said Uffer. “I would go to discussions with him and he would concur with me, but later on he would change his story and go in a different direction.”
“Did he use his judgment when voting?”
“I would suspect that he was doing the best thing for the public.”
“You never saw anything to the contrary?” asked Scalisi.
“No,” said Uffer.
Asked about whether he got along with Kirk, Uffer said, “Well, I had to get along.”
Uffer said that Kirk was Ovitt’s at-will employee, meaning Ovitt had complete autonomy in firing him, but that it would have required the votes of four of the supervisors to have Kirk fired if Ovitt was not in favor of doing so if such a motion were to be made.
“You did not run around and try to get rid of him?” asked Scalisi
“No, I just ignored him,” said Uffer.
“Mark Kirk worked for Gary Ovitt?”
“Correct,” said Uffer.
Mr. Ovitt never fired Mark Kirk, did he?” asked Scalisi.
“No,” said Uffer. “He let him get away with a lot of things. Everyone thought he was like that, but Gary Ovitt, he was blind to it. Gary Ovitt did not know everything that Mark Kirk did.”
“Did you go to Mr. Ovitt to say, ‘You need to get rid of Mark Kirk’?”
“No. I would not do that,” said Uffer. “I cleaned up Mark’s messes.”
Uffer testified that neither the Colonies Partners nor its attorneys provided documentation to back up the claims being asserted about the expenses the company claimed to justify the $102 million settlement.
Uffer testified that after Postmus returned from a trade mission trip to China in 2005 at which Burum was present, he pressed for a settlement of the case with consuming urgency.
Uffer, who was relieved of his position as county administrative officer in December 2009 on a 3-2 vote with Ovitt and then-supervisors Brad Mitzelfelt and Neil Derry prevailing over Biane and supervisor Josie Gonzales, was kinder in his testimony with regard to Biane than he was toward Kirk. He testified that Biane was not attempting to stampede his colleagues into a settlement.
“Paul was focused on going through the processes,” Uffer said. “I think process was important to Paul.”
A difficulty in the rush to settlement, which the county’s attorneys warned about but which Postmus, Biane and Ovitt ignored in approving the $102 million settlement, Uffer testified, was that it obviated, or made very difficult proceeding with, litigation against the California Department of Transportation, the collective transportation agency for the county and its cities known as SANBAG and the City of Upland, all three of which had a hand in creating the situation which the Colonies Partners complained about in its lawsuit against the county.
Maline elicited from Uffer that the Colonies Partners lawsuit represented to him a significant matter that he had to deal with as the county’s top administrator and that he had cultivated an understanding of the suit and stayed abreast of its developments by means of regular briefings by the county’s attorneys. Maline asked him “Why is it you did not learn what the Colonies lawyers were saying?”
“I think it would have been improper for me to reach out and talk with the other party’s attorneys,” said Uffer.
When Uffer was asked about county flood control district director Ken Miller, whose actions and credibility had been impugned by Judge Warner in his decision in favor of the Colonies Partners, he said that for a short time Miller had served in the capacity of interim county administrator and that he personally “didn’t find him dishonest.”
Beginning late in the afternoon on Tuesday and running through all of Wednesday and into the afternoon on Thursday, former supervisor Gary Ovitt testified.
While Ovitt represented the third crucial vote to approve the $102 million settlement and his testimony has bearing on the overall case and all of the accused, he is most crucial to the case being propounded against Kirk. It was in the prosecution’s interest to have Ovitt come across as docile and weak-willed and thus capable of being dominated by Kirk. Supervising Deputy California Attorney General Melissa Mandel, who handled the direct examination of Ovitt, had little success in that regard, as Ovitt maintained a dignified bearing on the stand, was articulate and, if not combative, forceful on those occasions when characterizations were made in questions which he considered inaccurate. He forthrightly contested any negative characterization of Kirk. Moreover, as his time on the witness stand prolonged, he grew more and more comfortable in the role, it seemed, and he offered an essential defense of his vote on the settlement which countered that element of the prosecution’s case suggesting the settlement was out of keeping with any true damages the Colonies Partners had sustained and an ill-advised, rushed and illegal gift of public funds.

Gary Ovitt

Ovitt, who had been a councilman and then the mayor of Ontario, testified he “met Mark Kirk in 2004 when I was looking for a campaign manager. Mr. Kirk was recommended to me.”
Ovitt identified Bill Postmus as having made the recommendation. Ovitt said he met Kirk and learned he was “from Oklahoma, like my mother. He was of good stock. We agreed on a lot of things.”
He hired Kirk to manage his campaign for supervisor, Ovitt said. While Ovitt tended to fundraising and making campaign appearances, he said, Kirk handled all of the nuts and bolts of electioneering, including formulating mailers and sending them out, getting volunteers to walk precincts on Ovitt’s behalf, as well as coordinating other publicity and media contact in conjunction with a political consultant from Sacramento, Steve Presson. When he won the election, Ovitt testified, he hired Kirk as his chief of staff.
Ovitt said he knew Biane as a consequence of Biane being on the Rancho Cucamonga City Council previously when he was mayor of Ontario. He said he had “met Mr. Postmus by going to some of the Republican Central Committee meetings” in the early 2000s. By 2004, Postmus was the chairman of the San Bernardino County Republican Central Committee.
Ovitt acknowledged that in his 2004 election, he had received a $25,000 campaign contribution from the Colonies Partners and another $100,000 from the sheriff’s deputies union, known by its acronym SEBA. He further acknowledged that he knew SEBA’s political action committee had received some $520,000 from the Colonies Partners in that timeframe, and that the Colonies Partners had thus bankrolled his campaign by $125,000, as $100,000 of that $520,000 was intended for him.
“I think it was Colonies Crossroads [money] from SEBA,” Ovitt said. “I think, yes,” he said, when asked if the money from SEBA that came to him originated with the Colonies Partners. “I think it was 100 thousand [dollars].”
Mandel asked about what Ovitt knew of the lawsuit prior to his being elected to the board of supervisors.
“During the time while your campaign was going on before your election, did you have any conversations with Jeff Burum or Dan Richards?” Mandel asked. Dan Richards was a co-managing principal in the Colonies Partners with Burum.
“I talked with Dan Richards about that before the election at the Double Tree Hotel [in Ontario],” Ovitt said, in anticipation of what Ovitt might do if his election bid was successful. “He laid out the issues [involved in the lawsuit]. Basically, he told me the county needed to step up in regards to the flood control issues on the property.”
Ovitt said he believed the Colonies litigation “would be over before I was elected.”
Mandel inquired about whether Ovitt had made any promises to Richards.
“No, I did not,” said Ovitt.
“And he didn’t ask you for any?” Mandel asked.
“No, he did not,” said Ovitt. “Dan was concerned just as a friend about what was going on. Condition-wise, there were no strings attached [to the $125,000 in contributions]. They wanted the best candidate to win.”
“Do you know if Mark Kirk had a relationship with Jeff Burum and Dan Richards at that time?” Mandel asked.
“I think I introduced him to them,” said Ovitt. “I don’t think he knew them before then.”
Asked by Mandel if he thought Kirk, who is nearly a generation younger than Ovitt, was more politically sophisticated than he was, Ovitt said he did not believe so. Ovitt said that Kirk was more knowledgeable about running a campaign than he was but that in terms of governance, he felt he more than held his own. He pointed out that he had been a councilman and mayor before he ever met Kirk. “I somehow managed without him,” Ovitt said.
Ovitt acknowledged that Kirk had political ambitions of his own and had run for city council in Hesperia. He also acknowledged that money from his supervisorial campaign had been used to support Kirk’s father, Robert Kirk, in his run for school board in Hesperia.
To questions about Kirk’s strong and dominant personality, Ovitt said Kirk was “result oriented” and “does have a strong will.” But Ovitt said Kirk “did not act bullyish” in his presence. He acknowledged that supervisor Gonzales had complained that Kirk had acted inappropriately.
“Did you believe her?” Mandel asked.
“Josie is Josie,” Ovitt responded, “I talked the matter over with Mark. I mentioned that ‘Josie said you were acting inappropriately.’ He said, ‘I understand. Thank you.’”
“Did you scold or reprimand him?” Mandel asked.
“I would not say that, no,” said Ovitt. “I basically shared with him that Josie had an issue with how he treated her, but I realized that Josie looks at things differently than I do.”
Mandel asked about Kirk’s relationship with Mark Uffer.
“I know Mr. Uffer had an issue with him,” said Ovitt. “Mark was very vocal in standing up for things we believed in during the meetings we went to and Mr. Uffer wasn’t happy with that. I thought Mr. Uffer was the problem and not Mr. Kirk. I didn’t think Mark Kirk was in the wrong.”
When told that Uffer said Kirk “drove the agenda of the Fourth District,” Ovitt said, “That statement is incorrect.”
After further questions with regard to Uffer’s suggestions that Kirk had been dominating him, Ovitt used wit to diffuse the charge, offering “to take on Mr. Uffer” in a wrestling match.
Ovitt further sought to allay further insinuations about Kirk. When asked by Mandel if he felt “protective” of Kirk.
“I don’t know if I have to be, but I have a great respect for him,” Ovitt said. “He is an outstanding young man.”
Ovitt said he would have no hesitation in allowing Kirk to babysit his granddaughter.
There have been overt references during the trial to confidential information pertaining to the board’s deliberations and discussions with regard to the settlement proposals being leaked or provided to the Colonies Partners, in particular to Burum and/or to Burum through Erwin.
Ovitt found himself fending off suggestions weaved into Mandel’s questions that he was either a direct, indirect, witting or unwitting, source of that information that made its way to the Colonies Partners.
Ovitt said he had discussed with Kirk, who was not in the closed session discussions held by the board, information he gleaned from those settings, but that doing so was a consequence of his role as supervisor and Kirk’s role as his chief-of-staff and their collective dealing with the issues of governance.
Mandel delved into Ovitt having turned to Greg Devereaux, who in the 2004 to 2006 timeframe was the city manager in Ontario, for advice with regard to the Colonies Partners litigation. Ovitt acknowledged that he had “talked to an individual I have great respect for, Greg Devereaux” as he was trying to get a grip on the challenge the Colonies Partners litigation represented.
“He has a law degree,” Ovitt said of Devereaux. “He has ability. I saw him and I respect him, so I asked him ‘What do you think of the case, overall?’ He said there was some liability.”
Devereaux would later – in 2010 – be recruited by Ovitt to leave his post in Ontario to succeed Uffer as the county’s top administrator, and be given greater authority and latitude in running the county than Uffer was given, with the job title of county chief executive officer rather than county administrative officer. After obtaining Ovitt’s admission that he had disclosed to Devereaux information about the lawsuit while seeking his guidance, Mandel let the issue quietly drop, though many present in the courtroom including the lawyers, the accused, legal staff members, some observers, although perhaps not the judge and very likely not members of the jury, knew that Devereaux and Colonies co-managing principal Dan Richards are close friends.
Burum’s attorney, Stephen Larson, essentially used Ovitt as a prop to stage for the jury a close examination of the Waldron appraisal, a document produced at the behest of the Colonies Partners in 2006 as an exhibit in the trial before judge Warner to show that the Colonies Partners had suffered over $300 million in damages as a consequence of the county’s action that led to the lawsuit and the delay in settling it that ensued. Using the courtroom’s overhead projectors, Larson displayed excerpts from the appraisal. Among the costs delineated were the $85 million value of one of the basins constructed on the Colonies Partners’ property to hold the storm water, the Colonies Partners estimated $75 million cost of managing the basin over time, a $43 million devaluement of the lots the Colonies Partners claimed were impacted due to the cloud on their title which came about because of the county flood control district’s interpretation of its easements, the $36 million loss the Colonies Partners asserted came about because of the three-year delay in the construction of Phase II of the project, $28 million in basin construction costs and an $11.5 million loss the company sustained as a consequence of higher infrastructure development costs.
It was during Larson’s questioning that Ovitt transformed into a witness who strongly bolstered the defense. Larson’s questions were artfully designed to elicit from Ovitt his justification for having settled the case. Previously, in response to Mandel, Ovitt had testified that he had supported the $102 million settlement because “we had a liability. I would rather have had a lesser figure, but I voted for it.”
Larson marched Ovitt through the circumstances, conditions and atmosphere in which the settlement deal was finally arrived at, including Warner’s decision, which, Ovitt said, “excoriated” the county. He later said that Warner had “spanked” the county in rendering his decision, supporting his decision to join with Postmus and Biane in voting to be done with the lawsuit.
In his questions, Larson propounded that the county’s far lower estimation of the value of the Colonies Partners’ land was a consequence of the county evaluating it as bare and undeveloped as opposed to appraising it at its highest and best use.
Larson also suggested the county had wrongfully appropriated the Colonies Partners’ land by referencing “government encroaching on a private party’s property” and then asking Ovitt, “You are opposed to that?”
“I certainly don’t agree with the government taking private property unless it is extreme circumstances in that regard,” said Ovitt.
During one phase of his questioning of Ovitt, Larson sought to deliver what some in the defense camp were anticipating would be the coup-de-grace to the prosecution’s case, an exploration of the county’s failure, according to the defense theory, to have the county flood control division assume responsibility for alleviating the flood drainage issues on the Colonies property and its environs and instead leaving to the Colonies Partners the necessity and expense of constructing a flood basin on the property. This was tantamount, the defense implied, to the county shirking its responsibility to maintain public safety in the face of flood conditions.
“Ms. Mandel did not ask one question about the public safety impact of the development, did she?” asked Larson.
“No,” said Ovitt.
Larson was making progress toward placing the public safety issue front and center when Ovitt, in an off-handed and unexpected reference with regard to the suitability of the Colonies property for development, referenced a statement by local economist John Husing that the land is ripe for development because it provides the advantage of being “cheap dirt.” In one phrase, Ovitt had inadvertently dismantled a key element to the justification for the settlement, consisting of the assertion that the land consumed by the basin was valued at $1.5 million per acre.
Mandel sought to lasso Ovitt onto the prosecution reservation by angling questions at him to either further counter or dispute the Colonies Partners’ damage claims or at least bring them into question, as well as to illustrate that Postmus’ judgment was lapsing at the crucial time when the vote on the settlement was approaching.
In a deprecatingly ironic characterization of Miller Starr & Regalia, the law firm representing the Colonies Partners in its lawsuit against the county, as a “superstar law firm,” she asserted its lawyers had been either incapable of or unwilling to marshal the evidence to back up the claims of damages made in the Waldron appraisal.
To her questions, Ovitt acknowledged that the county’s attorneys had warned that providing the $102 million to the Colonies Partners would be an illegal “gift of public funds.” He also said that the Colonies Partners had never actually provided documentation to support the company’s assertions of its losses.
Ovitt said that Postmus was constantly and consistently using his Blackberry device to communicate with others during closed sessions, while confidential discussions were under way.
Ovitt acknowledged that he had watched Postmus decline from an impressive young, engaged and skillful politician into the morass of drug addiction during the time leading up to the settlement. “I think it was his own illness,” Ovitt said, clarifying that the illness was “his problem with methamphetamine.”
Without using Uffer’s language, Ovitt echoed the former’s description of Postmus’ consuming drive to settle the lawsuit, which Ovitt implied spilled over to all of Postmus’ political objectives.
“He was not looking for a consensus,” Ovitt said. “There is nothing wrong with just going for the majority vote, but it makes more sense if you can persuade and convince others.”
Postmus just wanted to get the settlement out of the way, Ovitt said.
When he was asked “Why didn’t you hold out for five votes on the Colonies litigation?” Ovitt said that it “was time to get things done.”
“Even if there were political consequences?” he was asked,
“Absolutely,” he responded.
In reference to the $100,000 the Colonies Partners provided to Kirk’s political action committee, Mandel asked Ovitt, “Were you aware of the contribution made to Mark Kirk?”
“Yes,” Ovitt said.
“Did you learn then, or now, or when the contribution was made?” she asked.
Ovitt said Kirk told him about it at the time.
“He told me,” Ovitt said.
She asked why the Colonies Partners had made the donation to Kirk.
“I don’t know the reason why,” he said. “I was just told it was made.”
“Did Mr. Kirk to your knowledge have to mend fences with them?” Mandel asked, reflecting the defense contention that the $100,000 in political contributions made by the Colonies Partners to Postmus, Biane and Kirk were simply political donations intended to redress hard feelings that might have developed over the contentious legal battle, and not bribes.
“No,” said Ovitt.
Peter Scalisi, Kirk’s lawyer, said he wanted Ovitt to “address what really is the central issue in the trial, which is whether this was an honest, good faith vote on your part or whether it was vote made under some undue influence or pressure by the Colonies. Was your vote in any way the result of corruption or undue pressure on you?”
“Absolutely not,” said Ovitt. “Only two people in this room know the answer to that, Mark and I. I was the one who made the decision in that particular case. Mark was not present in the closed session. It was absolutely my decision and my decision alone.”
Following Ovitt’s departure from the courtroom subject to recall, Josie Gonzales, the lone member of the board of supervisors who participated in the November 2006 vote who remains on the board, was sworn in. Deputy district attorney Lewis Cope asked her about her life and political career, giving her the opportunity to provide an expansive recollection of the challenges her parents, a tailor and seamstress, endured in their original profession, which led them to change careers when she was nine years old by founding a restaurant in Fontana. It was in Fontana that she began her political career, when she reluctantly accepted an appointment to the planning commission, from which position she ran successfully for city council in 1998. Six years later, against entrenched and well financed opposition, Gonzales used $365,000 she pulled from the restaurant she had inherited from her parents to run for supervisor and was successful.
Initially, Gonzales was reluctant to testify publicly about statements made in closed sessions, and had to be reassured by Cope that the county had provided waivers with regard to the confidentiality of the meeting contents.

Josie Gonzales

Gonzales, who was sworn in as Fifth District supervisor in December 2004, said she attended briefings with regard to the Colonies Partners lawsuit and was present in closed sessions when the matter was discussed but that it took her several months before she was conversant with the facts of the matter to the point she could actually participate in the discussions. Over time, she would vote to approve tentative settlements that were being kicked around in closed session on eight occasions, when those proposals called for the county putting up less than the $102 million that was finally approved. Ultimately, however, she rejected the settlements that were being finalized for approval, in some measure, she said, because the information she sought to back up the assertions by the Colonies Partners and the others who were endorsing the settlements was not forthcoming.
She said that Postmus and Biane had been designated as a subcommittee of the board to work with regard to negotiating or arranging a settlement of the lawsuit. She said initially she took her cue from the members of the subcommittee and was hopeful some order of settlement would be hashed out.
Aside from the complexity of the case, Gonzales said a difficulty she had was the substantial gulf between the dollar figures being thrown about by those on either side.
“I believe at that time [shortly after she came into office] the proposed settlement was near or about $60 million,” she testified. “I was quite uncertain as to how that amount had been arrived at. I had a previous occasion to speak to then-county supervisor Jon Mikels [who had been Biane’s predecessor as Second District supervisor] and he expressed to me that the settlement was not worth the $1 million that was the initial amount that had been discussed when he was in office. He had been a long term sitting supervisor and he was well versed on the issue.” She said “to have such an exaggerated difference between $1 million and $60 million” gave her pause. “That caused me to pay attention and want to evaluate said amount,” she said, saying she wanted to see “the many details about how much the settlement would be.”
She said she made requests for documentation “a minimum of four times.”
Cope asked if the “documentation you were seeking was actually provided by the Colonies?”
“No,” said Gonzales.
“Did that have an impact on your decision on whether to settle the lawsuit?” Cope asked.
“Yes,” she replied. “I came to the conclusion that the information was not going to be provided and I would gain no ground by continuing to ask, so I backed off.”
Asked why she dissented in the November 2006 vote to approve the $102 million settlement, Gonzales said, “I voted against paying the $102 million because I felt that it was a blatant outright wrongful act that violated the taxpayers’ trust. I don’t mind paying if I know what I am buying in the name of the people if I owe that money. My being unable to verify that in fact damages had been incurred by the Colonies of $102 million didn’t allow me to vote in favor of the settlement.”
Cope inquired of Gonzales as to her feeling with regard to the decision by Judge Warner that had held in large measure against the county, and which was cited by Postmus, Biane and Ovitt as their rationale for approving the $102 million settlement. Gonzales said Warner’s decision did not move her to simply hand the money the Colonies Partners was demanding over to it.
“I felt Judge Warner’s decision had been reached in haste and he had not looked out for the welfare of the people of this county,” she said. “I felt strongly enough I was willing to move forward with an appeal.”
She said the county’s attorneys were advising the board to appeal.
“In your view, how firm were they in terms of their recommendation?” Cope asked.
“They were very firm,” she said.
“Did you have a lack of confidence in the attorneys?” Cope asked.
“No,” Gonzales responded. “I knew that they had an exceedingly good reputation, a stalwart reputation. They believed in themselves and would not take on a case that would ruin their reputation. I knew by the facts and the dedication in which they were presenting those facts they had a solid case and that they could win.”
“Did you have the impression they were trying to milk the county for money?” Cope asked.
“No,” said Gonzales.
Cope asked, “Did Gary Ovitt reach out to you and ask for your vote in favor of the settlement at any time?”
Gonzales said, “Aside from perhaps discussion in close session? No.”
A portion of her testimony concerned Bill Postmus, whose specter hangs over the trial. In February 2010, he, along with Erwin, was charged in a case that underlies the one at trial now. He initially pled not guilty but entered into a plea arrangement with prosecutors in March 2011, turning state’s evidence and testified as the star witness before the grand jury that in May 2011 indicted Erwin on charges that superseded the ones filed against him in 2010 and additionally named Burum, Biane and Kirk. His testimony, anticipated later in this trial, is considered by most of those knowledgeable about the matter to be the linchpin of the case.
In her testimony, Gonzales came across as simultaneously empathetic toward and wary of Postmus.
She related one incident in which she implied or suggested without directly stating so that Postmus had acted in concert with Burum to corner her and pressure her into supporting the settlement. She said that what occurred happened while she was engaged in a mediation session at a hotel and office complex in the Century Plaza in Los Angeles in which the county board members and the county’s lawyers were in a separate room from the Colonies Partners and their legal representatives. Gonzales said, “I was in the room in which the mediation was taking place. I tried to excuse myself to use the facilities,” she said, saying she “felt awkward” doing so and that she did not want to interrupt the focus and intensity of the ongoing talks taking place in the conference room. She had to use a map of the building’s layout to find the ladies room. Once she was there, she said, across the hall was an opening to a kitchenette. “It looked rather dim but I saw a shadow move,” she said. “I didn’t think anything of it. I began to exit the ladies room and I heard my name. I stopped to look around and I heard my name again and as I approached the doorway someone came out a bit from the shadows, and I recognized Mr. Jeff Burum. I was a bit surprised… and I felt myself getting angry because I immediately knew I had been betrayed by someone inside the mediation conference room because there was no one who would know I left to use the facilities unless somebody had told Mr. Burum. He wasn’t forceful. He said kindly, ‘I need your vote. Please, please, please, please: I need your vote.’ I looked at him. I nodded and I walked away. I went back to the conference meeting room. It bothered me a great deal. I realized the stakes were so high that any action, any behavior, was on the table and I had just been played. I don’t treat other people that way and believed I had been betrayed by someone in the conference room.”
Cope asked who in the room might have signaled that she had left. “Did you see anyone using Blackberries during the course of that meeting? he asked.
“There were several people using Blackberries,” she said. “In particular, I remember supervisor Bill Postmus.”
Previously in the trial, the prosecution has suggested that Postmus was conveying inside information with regard to the board’s closed door settlement discussions to the Colonies Partners. Both Ovitt and Uffer testified Postmus would make continuous use of his Blackberry during closed sessions.
Gonzales also related an encounter she had with Postmus that occurred, she said, “I would say ten minutes before” the vote to confer the $102 million on the Colonies Partners. “Supervisor Postmus came into my office,” she said. “He was very agitated, very nervous. I had great concerns for his health. I asked, ‘Are you doing alright? Are you okay?’ He threw himself into one the armchairs, and as he fell back he put his arms up. He said, ‘Josie, don’t let these bastards do anything to you. Do not ever let them hurt you.’ He said it was awful what he was going through. I went up to him. I put my hands on his face. I said, ‘It will be alright. Do what is in your heart. Do what you think is right.’ He was always very concerned about me, and this morning was no different.”
Cope asked if Gonzales knew what and who Postmus was talking about.
“I knew who he was talking about,” she said.
Objections did not allow for that identification to take place.
Cope asked Gonzales to size Postmus up.
“I thought he was an extraordinarily bright young man,” she said. “I thought he and supervisor Biane were exactly what the future of government needed: bright, intelligent young men who hold office and build seniority and are dedicated.”
“Did you consider Mr. Postmus a friend?” Cope asked.
“No,” Gonzales responded. “You cannot make friends in politics. You can look for havens of opportunity in which you can work with other people. You can look for common needs that will match. You can coexist. Friendships cannot exist in a healthy environment as long as that environment is politics. It breeds nearsightedness. It convolutes the reasons you ran for office into what someone else wants you to do because you like them and are trying to please them and so forth. It is a luxury you cannot afford.”
Gonzales further related another incident in which she indicated the Colonies Partners had inappropriately sought to influence her vote. She said she had an encounter at her office with Patrick O’Reilly, who had a contract with the county for marketing the expansion of the Mid-Valley Landfill, a recycling program and to provide bilingual messaging on-line relating to payment of property taxes, among other things. She said she and one or more members of her staff met with him in regard to one of the contracts he had with the county. She said O’Reilly was “a gentleman I very much respected.”
On this particular day, she said, “We had our meeting in regard to issues discussed relative to one of his contracts. At the end of the meeting, my staff got up to leave. He asked for a private moment. My chief of staff exited and he closed the door. Mr. O’Reilly at that point – he didn’t ask me; he told me – it was very important that I give my vote to settle the Colonies lawsuit. I was quite taken aback. He stood there and I knew I had to go blank. There was no way I could betray what I was thinking. I tried to not react. I wanted to say ‘What are you doing? You shouldn’t be asking me this.’ But I know the risks that come with my job and I showed him to the door and said ‘Good afternoon. Thank you for sharing your opinion.’”
Cope asked Gonzales, “Did you know before that time he was also employed by Jeff Burum?”
“I became aware post-calendaring his appointment,” she said. “I thought it would be unprofessional to cancel an appointment with him. I held him in high regard.”
There were two tense moments in the courtroom on Thursday, in the morning and afternoon, both outside the presence of the jury.
Larson, who was once a federal judge, Thursday morning objected to questioning of Ovitt which Judge Smith had engaged in from the bench with regard to the water retention basin on the Colonies Partners property. Larson’s protest appeared to be based on Smith having blurred the distinction between the acreage of the basin originally on the property and the acreage of the basin after it was altered in conjunction with the project. Larson suggested the jury might, based on Smith’s authoritative status, assume the premise of Smith’s question as a fact.
That afternoon, again outside the presence of the jury, Smith defended his action, saying a judge asking questions of a witness is permissible, and he cited two cases in support of that assertion, People v. Cummings and People v. Spector. He is permitted, Smith said to engage in “limited clarifying” of testimony. “I have done that, I think, sparingly,” Smith said