By Mark Gutglueck
For decades, the San Bernardino County Local Agency Formation Commission has been subject to charges that it has deviated from its charter of logically and fairly hashing out jurisdictional disputes between the county’s various municipalities and districts and has instead been influenced by both political considerations and monetary inducements tantamount to bribery. Of late, it has found itself under the most withering questioning in its 54 years of existence. In the most recent criticism of its function, however, graft is not a primary but instead a secondary issue. Rather, the most raised concern about the commission at present is the tendency for it and its staff to cut procedural corners and failing to protect common citizens from the overreach of government.
Since San Bernardino County’s Local Agency Formation Commission was established in 1963, its ostensible purpose has been to oversee the establishment, expansion, governance, and dissolution of local government agencies and their municipal service areas, setting boundaries between cities and between varying districts, more or less to ensure that the provision of infrastructure and services is logical, fair adequate. Local agency formation commissions exist within all 58 counties in the State of California and function under the auspices of California Government Code Sections 56375 and 56133. San Bernardino County’s local agency formation commission (LAFCO) has on its seven-member board a citizen member along with six currently serving elected officials from city or county government/governmental districts. At this point, its citizen member is James Bagley, a former city councilman/mayor with the City of Twentynine Palms. Two members of the county board of supervisors, James Ramos and Robert Lovingood, are LAFCO board members. While all local agency formation commissions statewide are ostensibly intended to “inhibit urban sprawl and encourage the orderly formation and development of local agencies,” that intent has sometimes been frustrated or corroded in San Bernardino County by allowing the commission’s voting board members to participate in decisions pertaining to their own jurisdictions or those impacting landowners or developers with whom they have financial ties or from whom they had been provided political donations or electioneering assistance. In this way, the commission has on occasion allowed cities or districts to assume jurisdiction over property where infrastructure on that land would have been more logically provided by a neighboring governmental entity. In some other cases, where the entity owning or developing the annexed property was able to avoid the cost and responsibility of constructing infrastructure or could reduce the burden of defraying the cost of that infrastructure because of a more favorable relationship the developer or individual owning the property had to the office holders of the agency or municipality applying to annex the property, the San Bernardino County LAFCO would blithely countenance such annexations, even in cases in which a representative of the governmental jurisdiction into which the property was being annexed was participating as a voting LAFCO board member. Perhaps the most egregious examples of this abuse of the system historically in San Bernardino County occurred during the era in which the LAFCO board was under the influence of former San Bernardino County Fifth District Supervisor Robert Hammock in the mid-to-late 1980s. That LAFCO board also seated William Kragness, then a Fontana City Council member who would go on to become that city’s mayor. During Hammock’s and Kragness’s tenures, with developers and land owners connected to Hammock who had interests in or options on land in the Fontana area driving the agenda, LAFCO consistently granted Fontana’s annexation requests along its eastern border with Rialto and similarly accommodated its aggressive jurisdictional seizures along its western frontier with Rancho Cucamonga. Three decades later, the excesses of that time resonate, as Rancho Cucamonga has striven to ward off any further territory grabs along its periphery by maintaining a presence – a significant one – on the LAFCO board. Two of the LAFCO board’s seven voting members hail from Rancho Cucamonga: Rancho Cucamonga Councilwoman Diane Williams and James Curatalo, a member of the board of directors for the Cucamonga Valley Water District.
More recently, a growing number of county residents have suggested the function of San Bernardino County’s LAFCO has been corrupted by a bias favoring governmental entities over the citizenry whenever a dispute between officials and the residents they govern arises. This is evinced in the near universal rulings by LAFCO to allow annexations or consolidations to proceed even in the face of strong resident opposition. Four cases in point consist of the moves by three cities – San Bernardino, Needles and Upland – and one district – the Twentynine Palms Water District – over the last two years to divest themselves of their local fire departments and have the county fire department provide fire protection service to their respective cities and the population therein. In all four instances a far greater level of opposition to those changes manifested publicly during hearings for the annexation proposals than did support. Nevertheless, LAFCO overrode that opposition, approved the annexation of the confines within the city limits of each respective city into the county Service Zone FP-5, which was originally formed to provide fire service to the Helendale/Silver Lakes district in the Mojave Desert, and sealed the deal with a “protest vote” confirmation – a mere formality – of the arrangement, consisting of LAFCO’s invitation of property owners and voters within each of the jurisdictions to lodge letters of protest against the annexation. Each protest letter received was counted as a single vote against the annexation. Any resident or voter not lodging a letter of protest was presumed to have voted to accept the annexation. Nothing approaching sufficient opposition in San Bernardino, Needles and Twentynine Palms materialized to prevent the dissolutions of the fire departments in those places and the annexations from proceeding. In Upland and neighboring San Antonio Heights, which LAFCO rolled into the Upland annexation proposal, the protest period began on May 12 and was previously set to conclude on June 14. Because LAFCO failed in the comprehensiveness of its noticing of the protest process to invite all of the property owners in Upland and San Antonio to lodge letters of protest, an attorney, Joe Farrell, threatened LAFCO with legal action. LAFCO has capitulated and extended until July 14 the protest period for Upland and San Antonio Heights. Despite an energetic and seemingly well-coordinated effort by a core group of Upland and San Antonio residents to incite residents/parcel owners there to lodge letters of protest, it is anticipated that the annexation will go through.
This may prove a Pyrrhic victory for LAFCO, as the annexation effort in Upland and San Antonio Heights has stirred up, it seems, the wrong hornet’s nest, one that numbers among its members some very wealthy and sophisticated individuals. Those individuals, who collectively believe LAFCO cut corners and simply rubberstamped the City of Upland’s proposal, are resentful and determined to hold the city and LAFCO to account and are employing attorneys in that effort. Moreover, they have begun to reach out and coordinate with others within the county beyond Upland and San Antonio Heights who are likewise miffed at the fashion in which LAFCO has proven insensitive to citizen concerns when it is considering and processing requests by agencies and municipalities to set boundaries that are at odds with the wishes of a significant number of those agencies’ or municipalities’ constituents.
In Highland there has been longstanding enmity toward LAFCO that began even before the city incorporated in 1980. That is partially because before the 18.9 square mile city incorporated in 1987, LAFCO staff recommended against the city’s formation, opining that it did not have enough income through traditional ad valorem and sales tax revenue sources to sustain itself. Over that staff objection, a divided LAFCO board gave go-ahead to the city’s formation and it has since established itself to be, in current LAFCO Executive Officer Kathleen Rollings-McDonald’s words, “a well run city.” In recent years, LAFCO has sustained its unpopularity in Highland through a longstanding agenda to consolidate the San Bernardino Valley Water Conservation District with the San Bernardino Valley Municipal Water District. LAFCO has not achieved that, but in 2015 it did substantially expand the sphere of influence of the San Bernardino Valley Water Conservation District, inflating it to cover the entirety of the Bunker Hill Basin and the total area of the San Bernardino Valley Municipal Water District. This has been viewed with distrust by some influential members of the Highland community as being a forerunner of a move to make a merger they are opposed to.
Growing out of this, a serious challenge of the senior staff member at LAFCO, Kathleen Rollings-McDonald, has manifested. In 2003, Rollings-McDonald, who had been a LAFCO staff member since 1979 and who was then the deputy executive officer of LAFCO, succeeded James Roddy as its executive director shortly before Roddy’s death. For seven years, Rollings-McDonald was the face of LAFCO. In 2010, she retired after being a public employee for 35 years and eight months and began collecting an annual pension of $222,203.10 in current year dollars. Almost immediately, she went back to work for the county in a contract capacity, retaining her title as LAFCO executive officer. Her contract called for her working an average of 19.2 hours per week, 50 weeks per year, at a rate of $121.87 per hour, or an annual salary of slightly over $117,000 per year.
While working in the capacity of contract LAFCO executive officer, Rollings-McDonald has continued to collect her pension. According to available documentation, Rollings-McDonald was paid $339,268 in 2015-16 and is on track to make a similar amount in 2016-17, which draws to a close at the end of the month.
Dennis and Nancy Johnson of Highland this spring retained former Highland City Attorney Marguerite Battersby to undertake an inquiry into the county’s arrangement with Rollings-McDonald. According to Battersby, Rollings-McDonald engaged in prohibitive “double dipping” by retiring, applying for and collecting her pension and then continuing to work in her governmental capacity under contract while collecting a salary for doings so. Battersby drafted a letter to LAFCO and its board of directors dated May 10, 2017, which was also sent to San Bernardino County Counsel, challenging that arrangement, which she said was in defiance of the Public Employees Pension Reform Act of 2012. The arrangement, Battersby maintains, is an illegal one that needs to be abated at once and carries with it serious criminal and civil implications, including the need for Rollings-McDonald to disgorge the money she has been paid under the contract.
“There is so much corruption going on, someone has to do something about it,” Dennis Johnson told the Sentinel on June 6.
Battersby’s letter triggered no little consternation among LAFCO officials, prompting them to have attorney Isabel C. Safie of the law firm Best Best & Krieger respond in writing dated June 5, 2017. Safie asserted that the San Bernardino County Employees Retirement Association arrived at an “express determination” that “the executive officer’s post retirement employment from October 23, 2010 through January 7, 2015 was subject only to the requirements [that] she was employed in a position requiring special skills or knowledge as determined by the county or district employing her; and hours worked did not exceed 960 hours in any one fiscal year. If the preceding requirement were satisfied, the executive officer could ‘be paid for that employment.’” Safie also wrote that Rollings-McDonald’s post retirement employment with LAFCO county was subject to the Public Employees Pension Reform Act of 2012 as of January 8, 2015 but that one provision of the reform act requiring that employees not commence post-retirement employment until 180 days after retiring was not applicable to her because that provision applies only to retirees taking retirement after January 1, 2013. Safie said a further requirement in the Public Employees Pension Reform Act of 2012 requiring that LAFCO inform the San Bernardino County Employees Retirement Association of the re-employment of a retiree prior to commencement of that work could not have been met since Rollins-McDonald was already re-employed by LAFCO when the act went into effect in San Bernardino County on January 8, 2015. That notification did not take place prior to Rollings-McDonald’s re-employment, Safie acknowledged, but “Consistent with the preceding, LAFCO and the executive officer notified the San Bernardino County Employees Retirement Association and submitted a certification of compliance.” While the benefits to LAFCO, the governmental entities within its jurisdiction, and their constituents of retaining the services of the executive officer given her vast knowledge of the law, LAFCO operating procedures and the geopolitical intricacies of the region have been substantial, the executive officer’s employment will end no later than September 30, 2018 as approved by the San Bernardino County Employees Retirement Association.”
Safie said Rollings-McDonald is in compliance with applicable law by not working more than 960 hours in any one year period as a post-retirement rehire.
This week, Rollings-McDonald told the Sentinel she rejected charges made by LAFCO’s critics that over the last two years she had evinced bias in favor of municipalities seeking to jettison their fire departments and against the constituents within those cities who were opposed to the shuttering of those departments. That perception was an outgrowth of the fashion in which the law imposes a far higher bar for those opposed to such annexations than those in favor of them, she implied.
“I implement the law as it is written and the protest procedure we operate under has existed since the 1960s,” she said. “I do not have a choice in how to operate them. I understand that people are upset, but I am implementing the law. If the state wants to change it so rather than a negative protest vote it is a positive vote, that would change things, but I must implement LAFCO law as it is written.”
Rollings-McDonald acknowledged that in all four of the cities where local or municipal fire department dissolutions took place there was public opposition to the annexations into the county fire service district. Nevertheless, she said, those of that sentiment failed to convince the requisite number of their fellow and sister residents to effectively stop those takeovers. “They [the impacted residents] were provided with mailed notices and there were public notices in the newspaper that the commission consideration was taking place 21 days prior to those hearings. The protest hearings had time period of varying lengths of protest periods : the City of San Bernardino 45 days, Twentynine Palms and Needles 30 days ,” Rollings-McDonald said. “The property owners were noticed as well by an eight page legal notice. In every case the entity that initiated the application held a formal hearing on whether to initiate that proposal. The commission heard those proposals. There were a number of people opposed who attended the hearings. I don’t agree with the premise that the majority opposed the annexations. The protest letters were counted in all of those cases. Not one of them came close to the threshold to require an election.”
Rollings-McDonald sidestepped the question of whether she personally felt that construing a resident’s failure to lodge a protest of an annexation proposal as an endorsement of such an annexation application was proper by saying that she could speak only as the executive officer of LAFCO. Asked if as the executive officer of LAFCO she believed interpreting a resident’s silence in the face of an annexation proposal as acquiescence in the procedure was wise, she would say only that she was constrained by the law.
Rollings-McDonald was dismissive of suggestions that the noticing effort carried out by LAFCO for such annexations is inadequate to the task of actually vectoring all of those residents’ and parcel owners’ attention to the matter and that a large number or even a majority of residents may perceive the mailed notices as unsolicited communications or junk mail and not read it.
“I don’t agree with saying it was piece of junk mail,” she said. “It is a notice. It may not be as pretty as you want.”
Rollings-McDonald was both unapologetic about the practice of populating the LAFCO board with individuals who are overwhelmingly creatures of government, i.e., elected officials, and she was unsympathetic toward those who see in such an arrangement an inherent conflict of interest and bias, both when it comes down to differences between citizens and their governments and border and jurisdictional decisions of the board when the cities those board members represent are applicants before the board, or a board decision impacts a donor to or financial interest of a board member.
“We will provide our commissioners an ownership list for the annexation or project for their own evaluation,” Rollings-McDonald said. “If there is a conflict of interest, it is their obligation to recuse themselves. We have been doing that all these years, 21 days in advance of the hearing. That information is provided to them. If you or anyone saw that [a conflict of interest engaged in by a LAFCO board member], they could have raised that issue. It is incumbent upon the member to review the materials and make the decision. We [LAFCO staff] don’t have information on their [LAFCO board members’] campaign contributions.”
Mounting numbers of county residents, including ones in Upland, San Bernardino, Needles and Twentynine Palms who are in a state of discomfiture over the dissolution of their fire departments and their being forced against their will into paying assessments to support their respective cities’ annexations into county service area FP-5, see at the very least an ethical conflict, if not an outright legal one, in Rollings-McDonald’s return of loyalty to the governmental entity that has conferred on her the opportunity to pull down total annual compensation which surpasses that of only but a handful of current county employees. They have noted the reflexive tendency for governmental entities to accrue power and authority and to expand jurisdiction. That Rollings-McDonald heads the one division of government – LAFCO – which is designed to hold that governmental-power-and-authority-accumulation-dynamic in check while she has consistently over the last two years abetted the county in wresting from local residents their last vestiges of immediate local control over a key feature of municipal operations has convinced them something is amiss. Thus, individuals and collectives in a cross section of San Bernardino County cities are now in the process of hitching their legal horses up to the same side of the wagon, intending to pull the county and their city leaders in a direction those officials don’t want to go, a complete reexamination of governmental authority.
By Mark Gutglueck