By Mark Gutglueck
With the council chambers heavily laden with Councilwoman Janice Elliott’s supporters, Elliott’s four colleagues on the Upland City Council pressed forward Tuesday night and passed a censure motion against her.
The motion and its contents provide one of the clearer windows of the political divide in Upland that has been developing for several years in the City of Gracious Living and which predated Elliot’s 2016 election to the council. While Elliott was until recently the only Democrat on the panel, the divide transcends partisan definition, as in many respects Elliott has come to be identified more closely with several Republican issues than her four council counterparts, despite their GOP affiliation.
The seeds of what now divides Upland were sown in 2000, when John Pomierski was elected mayor. Almost at once, Pomierski began engaging in a series of depredations that would not come to general public light for another decade. Essentially, he began trading on his position as mayor, shaking down individuals and businesses with applications for project approval in the city’s planning division. Pomierski, either directly or through his associates, would approach those applicants, offering the mayor’s services either as a consultant or as contractor on the projects under consideration once they were permitted. In time certain city employees learned what was occurring. To keep his illicit dealings under wraps, Pomierski was obliged to cut those city staffers, primarily ones employed within the city’s planning, community development and public works divisions, in on the action. Yet showing favoritism to a select group of city employees carried with it the danger of creating a growing circle of curiosity, suspicion and exposure. Ultimately, Pomierski used a formula of essentially bribing everyone, knowingly or unknowingly, by upping city salaries and benefits, keeping everyone happy and buying the silence of City Hall. This however, exacerbated the city’s long term financial picture, as the primary element of the benefits were the pensions promised to city workers upon retirement, and with the upping of salaries, which are part of the formula by which the benefits are calculated, a circumstance was created whereby a larger and larger portion of the city’s general fund was being routed to pay for those pensions. At this point, the city is already committed to future pension payments in the neighborhood of $120 million, to just those employees who have already retired. According to the last comprehensive financial audit report provided by Davis Farr for the fiscal year ending June 2017, the estimated total liabilities were $142 million based on the California Public Employees Retirement System investment return rate of 6.65 percent and $101 million based on an investment return rate of 7.65 percent. The California Public Employees Retirement System has reduced the rate to 7 percent and independent actuarial firms have stated a 6.65% rate is more realistic. When currently working employees retire, the commitment to keep the retirement fund solvent will escalate further. Of the roughly $45 million that flows into and out of the city’s general fund every year, at this point nearly $8 million goes to the California Public Employees Retirement System to pay the pensions of former city workers. During his tenure on the city council, former City Councilman Glenn Bozar sought to force a reckoning on this issue, such that the city would undertake to reduce drastically its current benefits, including its pension commitments to current and future city employees to prevent a crisis in the coming decade in which more and more of the city’s revenue is eaten up by payments to the pension fund, preventing the city from being able to deliver basic services. Bozar struggled unsuccessfully in trying to convince the council to institute those reforms, as the council was unwilling to ask the city’s employees to give back that portion of the generous compensation packages conferred upon them during the Pomierski regime, or failing that, to simply impose on city employees a reduction in their salaries and benefits. The council majority instead looked more favorably toward boosting income by the imposition of new or higher taxes, which Bozar stridently opposed. In 2016, Bozar was defeated in his mayoral bid against councilwoman Debbie Stone. The same year Elliott was elected to the council. While initially Elliott sought to cooperate with the balance of the council and supported them in their approach toward imposing higher taxes on the city’s residents to defray the city’s ever-increasing pension costs, within six months of taking office she found herself cast in essentially the same role that Bozar had been in previously.
During her first months in place, the city under the leadership of interim city manager Martin Thouvenell moved to shutter the city’s 110-year old municipal fire division and replace it with the county fire department, in so doing annexing the entirety of the Upland City Limits and neighboring San Antonio Heights into a county fire service zone, which brought with it a per-parcel assessment of $156 annually. In this way the city was able to generate enough money to defray the cost of running the fire department and generate an additional $3.2 million in revenue to be deposited yearly into the city’s general fund. This was widely perceived as a backdoor mechanism by which city officials were able to impose a tax on the city’s residents without a vote. As resistance to the annexation and the assessment manifested in the Spring of 2017, Elliott in her capacity as city councilwoman, sought to allow those objecting to and protesting the move to be heard, attempting to give residents a public forum in which to make their case against closing out the city’s fire department and then charging every household in the city $156 for what for more than a century had been a basic municipal service paid for by the property and sales taxes and other revenue streams available to the city. Top ranking city officials, including all four of her council colleagues and the city’s management echelon, came to resent what they considered to be Elliott’s unwillingness to join with them in lockstep on the annexation issue. They then held a series of private meetings, including ones in closed session involving the entire council and its strategic advisor/public relations consultant, in which they first sought to wheedle and cajole her and then ultimately to strong-arm her into falling into line with their agenda. Sensing this to be improper, Elliott used her cell phone to photograph a document relating to a council behavior protocol presented at one of those closed door meetings for the council to sign and commit to in private. She then made a complaint to the district attorney’s office relating to what she perceived to be a violation of the Brown Act, the State of California’s open public meeting law, offering the photograph of the document signed by four of her colleagues as proof. A month later, after word that they were under criminal investigation leaked out, the remainder of the council voted to strip Elliott of her council committee and adjunct governmental board assignments.
Since that time, the relationship between Elliott and the other members of the council has deteriorated further.
Last week, a resolution was prepared for consideration at this week’s council meeting, held on Tuesday rather than the traditional Monday reserved for such meetings because of the Memorial Day holiday. The resolution stated, “The city council has determined that Council Member Janice Elliott has engaged in conduct which has brought embarrassment and discredit to the city council and improperly publicly disclosed confidential documents and information” and that she had “breached the trust and confidence of the other city council members through public disclosures of confidential and privileged council communications.” Furthermore, according to the resolution, Elliot “improperly exceeded the scope of her authority and duties as a council member by interfering with city staff and management in daily personnel and operational matters and improperly and secretly engaged in communications and settlement negotiations with litigants suing the city without having the advance knowledge or consent of the city, potentially disclosing or prejudicing the city’s litigation confidentiality and strategy.” The resolution also dwelled upon Elliott’s participation on social media sites, in particular one known as “Upland Uncensored,” in which indecorous criticisms of the council and its actions have been repeatedly posted. The resolution takes Elliott to task for “repeatedly speaking publicly about discussions held in closed session, and commenting publicly in a manner that is detrimental to the city’s position in pending litigation only two weeks after agreeing not to discuss or comment on any such litigation” together with “improperly disclosing confidential information regarding performance of a city employee.” The resolution cites examples of Elliott having had direct contact with city employees rather than working to influence city policy by direction given to the city manager through a vote of the full council. The resolution takes issue with Elliott having identified herself as an Upland City Council member when she communicated with Rancho Cucamonga city officials and encouraged them to avoid entirely or severely limit development in or around an existing natural wildlife preserve so that habitat for threatened or endangered species is kept intact. The resolution says this amounted to Elliott “misusing her position as a city council member.” Moreover, the censure blasted Elliott for suggesting that the council had violated the Brown Act and involving the district attorney’s office in an investigation of her peers.
During the public comment portion of Tuesday’s hearing, 28 speakers weighed in on the censure motion. Two of those speakers commended the council for moving to admonish Elliott, and were in no way complimentary toward her. The other 26, with varying degrees of intensity, indicated their opposition to the censure. While some of the speakers exercised gentility and spoke in measured tones, others evinced a depth of disrespect toward the council that made Elliott seem as if she were her colleagues’ publicist.
Dee Dee Ramella said, “It is now obvious from the very start that none of you ever thought Janice Elliott would win the election. The success of her winning has complicated your scoreboard and you seem to think you can change the score in the middle of the inning. Just because you dislike her honesty and transparency with the residents of Upland, you are going out of your way to discredit, humiliate and embarrass this councilwoman that shares the platform with you.” Ramella said Elliott had gotten on the wrong side of the council by “pointing out the irrational and flawed thinking that is running this city.” She accused the council of “removing and slandering people you can’t get along with. You look for any reason real or imagined to bring down anyone who does not go along to get along. It’s been apparent for a number of months Janice is not in your club. When she suggests a solution to one of your illogical decisions, when asked for a second you tighten your arms like bullies on a playground to let her know she’s not allowed to play. You are showing hostility to the very residents of Upland who elected you.”
Julie Bridge did not see it that way. Elliott, Bridge suggested, is out of step with the council because she doesn’t have a clue as to what she is doing and is incapable of seeing the wisdom of those she is serving with. “You were and are unqualified, and in way over your head,” Bridge told Elliott. She said many right-thinking people in the community had sought to give Elliott guidance when she first came onto the council but that “You heeded no advice and have been on a vendetta to try to destroy our city and the many people in it. You are a false prophet and speak with a forked tongue. You are hell bent on finding some sort of smoking gun and taking down all the other city council members rather than do one single thing to help our city. It’s time for you to leave the council.”
Lorrie Haner said, “Janice is our beam of light, where we can get transparency and we can actually find out what is going on in this city.”
Former city councilman Dave Stevens told Elliot, “You are someone who comes across at council meetings like you really know what you are talking about, but facts don’t seem to matter to you. In the past you made statements about the city’s finances that were not correct. When you were corrected, you said, ‘Oh, I’m just a rookie.’ That’s not a good excuse. You should know the facts. You filed a Brown Act violation [complaint] against the city council with the D.A., which was dropped because there was no violation. You say you want to be transparent. That’s good, but you need to have your facts right. Don’t mislead the public. You have done that. You have called the city council and the former city manager liars. This is not true and you know it and yet you expect the council to love and respect you. I had a conversation with a friend last week and he thought you were great. He said you made a statement about the water funds. You claimed you voted for a smaller raise in the water fees because the city is using the water funds in other areas. I asked two city council people [about] that and I asked the city manager and the former city manager. He said, they said, ‘That’s not true.’ Please get your facts straight before you speak. Transparency’s good, but it can be bad if you are incorrect. You seem to enjoy chaos. Chaos does get a lot of press, but it is not good for our city. You need to get along with other people. You have not been doing that.”
Stevens said he thought the censure was a good idea.
Terry Carmichael said of Elliot, “I see nothing she has done or said as illegal, meanspirited or deserving of any action against her. Janice pays amazing attention to detail. She is highly intelligent and studies hard, thinks deeply and asks good questions. No one is better prepared or more transparent. No one has more ethics, personal integrity or desire to get it right. No one is a better advocate for the citizens of Upland. Janice Elliott is exactly what this council needs. Can you not listen to a voice of fact, reason and civic accountability? How can you turn against her for doing what she was elected to do?”
Terry Masl told the council it was “outing a councilwoman for not being like the rest of you.” Masle said the council majority’s approach was “all about maintaining a dictatorial control over this city. Councilmember Elliott is being charged with having a mind of her own. Unless the entire council is in lockstep, it is an embarrassment to the city?” he asked. “You are accusing Ms. Elliott of nefarious activity like discussing neighboring issues with neighboring council people. Isn’t this her job? You are demanding she stop asking questions about wildlife and habitat. I know these are considered obscenities to the big donor developers around here who want to carve up our foothills, but this is what she was elected to do. You are accusing her of circumventing management when she couldn’t get answers to questions posed to this council. You’ve refused to assign her to any committees. You’ve gerrymandered district boundaries to block her.”
Masl then addressed Elliott directly. “Janice,” he said, “I would wear this as a badge of honor. They have tried to bully you and you have stood up for your convictions, and I congratulate you for it.”
Dorothy Lebowitz said that Elliott had proven herself to be far more approachable and responsive than the other members of the council. “She returns emails and phone calls,” Lebowitz said, and then intoned, “Why all the secrecy?”
Thomas Allison, Elliott’s attorney, addressed the council. “I think this council is moving in haste,” he said. “Taking such an action without policies and procedures in place to hold anyone accountable, I think, makes this a much more political move than is actually necessary. I stand ready to do whatever is necessary to defend Janice’s First Amendment rights both as an American and as an elected official. I understand that the intent here is to silence someone who is probably acting outside of political correctness, but there’s a better way to go about making sure that people are ‘following along’ or ‘playing within the rules.’ I think this council is creating a divisive nature in the city and I want the constituency to know that the litigation that will ensue if this council makes the wrong decision is not Janice’s fault. We’re fighting in favor of democracy. We’re fighting in favor of Janice’s voice. We’re fighting for all the constituents that elected her to do what it is that she is fighting to do.”
John Ickis told the council that Elliott is prepared and accessible. “She wants to dig in deep and make sure she has all of the available information before she casts her votes on items,” Ickis said. “She asks many question so she can be sure City Hall is putting items in front of the council that are fair and just. We all know there have been plenty of items that were not fair and just, so I really appreciate that she volunteers so much of her time to fix all the wrongs that have been done in the past.
“Janice,” Ickis said, speaking directly to Elliott, “I truly believe you are exactly the way our government was designed to be. You do not believe in keeping secrets from your constituents.”
Again addressing the council, Ickis said, “You weren’t elected to the council to make lifelong friends and drink tea together. You were elected to make our city a better place and that, I believe, Janice is making progress on. She is not an evil person trying to destroy Upland like you have made out in your staff reports.”
Barbara Papa said, “I stand with you, Janice Elliott, against the school yard bullies. It is an embarrassment. You should be respected. Look how they are acting.”
Melinda Bowen said, “We, the citizens of Upland, elected Janice. It is your job, as the rest of the council, and it is your job too, Janice, to get along and do what is best for the city of Upland. It is overwhelming to me that the four other members of the council would think that it is your duty to take out of our hands our vote and political power we gave you and Janice. I ask you, abandon this silly, expensive venture and learn to work together like adults for the betterment of the City of Upland.”
April McCormick said, “Yesterday, as you know, we all celebrated Memorial Day. Since 1775, 650,000 have died to build a free nation and defend it. In Upland, we do not have a free nation or city. We are here the day after Memorial Day to publicly humiliate and punish an elected official for exercising her First Amendment right afforded to her under the United States Constitution. This is a tyrannical act which our founding fathers risked life and limb to liberate us all from. So now, to regress in Upland to this extent… it’s absolutely outrageous. This is such a decadent display of city power to spend city staff, time and money in their four-day work week to prepare this agenda to try to do this to her tonight. This is an utter disgrace.”
John Goss said the council is provided with “things that come from your city manager and you guys just rubber stamp it. The only one on this council who asks questions to any degree you want to censure. It’s like, ‘Let’s just censure the smartest person in the room.’”
Goss referenced Elliott’s licensing as a certified public accountant. “Use what you have,” he said, “and what you have is a CPA on the board [i.e., council] that you don’t listen to when new information comes forth. Janice has been the only one to have the guts to stand up and say, based on this new information, ‘I’ve change my mind. I’m not going to go along with rest of you just because city manager Mr. [Martin] Thouvenell wanted us to, just because this is what Marty told us to do.’”
Goss suggested that the council’s rush to enter into the annexation without looking at other options with regard to the provision of fire service was the genesis of the friction the council has had with Elliott. “Why wasn’t there a request for proposal for fire service?” Goss asked. “Why didn’t you go to CALFIRE [the California Division of Forestry]? We all know you didn’t. It took me digging and digging to find out you didn’t, and then it was “Oh yeah, we didn’t do that.’ You put taxes on your own people for no reason other than it was an easy way out. If you continue to go down this road, every one of you on the board [council] won’t be there.”
Rudy Zuniga said, “It seems there has been a lot less honesty, lately. There is no transparency when developers and consultants are given bloated contracts while the residents are paying taxes that never seem to end. I also find it very unfair and disturbing when your cronies are serving on council committees enabling them to make decisions that benefit themselves and their groups rather than the community.”
Zuniga then made reference to a companion item on the agenda accompanying the censure, one that called for the creation of a litigation committee to be composed of two council members. “How can we trust our mayor to assign council members to oversee and be unprejudiced in deciding council member Elliott’s fate when they themselves have not been honest, transparent or fair and are already showing strong animosity toward her? We don’t have this kind of favoritism from Janice. She has no favoritism, no cronyism. She questions bad decision-making. She conducts extensive research before casting any votes, which is what I would expect from each and every one of you.”
Hortencia Muniz cited as an example of Elliott’s approach to her duty as a councilwoman her “questioning the analyst that was advising you. I respect that because I recognize that to be hard work. A public censure of Ms. Elliott is confounding to me.” While Elliott’s question of the city’s direction, Muniz said, “to me sounds like a pain in the neck, but if she is being loyal to the electoral objectives, your job is to listen and integrate her viewpoint to meet the objectives expressed by the electorate. You have to include her viewpoint. You have to work with her.”
Dorcas Werner characterized Elliott as “inquisitive and intelligent. Her intent has never been to harm or do damage or anything like that. It has always been to improve and make things better and find better ways for the environment and for people.”
Steve Bierbaum said the censure was “a stifling of the First Amendment rights of a council member. Council member Elliott won the votes of the Upland citizens. That’s the bottom line.”
An indication of the illegitimacy of the action against Elliott, Bierbaum said, is its parallel with the way the council majority has marginalized City Treasurer Larry Kinley, who was elected in the same 2016 balloting as Elliott and who has likewise advocated the city taking steps to substantially reduce or eliminate its future pension obligations. “Councilwoman Elliot is not the first victim of this city’s and city council’s intended censorship,” Bierbaum said. “Where is our elected city treasurer? He is certainly not at city finance committee meetings. Marty [Thouvenell], I mean the City Council, decided against that. An oath to protect the Constitution of the United States of America was taken when you were sworn in. A censure, such as what this council intends to do, is not supporting the First Amendment right of someone we may not always agree with politically. If this passes, this may set precedents in this city and this state we may all not want to face. There is still much corruption that needs to come to light, but silencing people will not bring it to light. Just remember you may be the next ones to be censured. Everyone has the right to free speech, even if you don’t like it.”
Robert Smith saluted Elliott and councilman Gino Filippi for their participation on local social media sites. “You guys don’t like it, because they tell us stuff, especially Janice,” Smith said. “You guys do stuff, and we ask you to tell us, and you give us looks like, ‘Why do we have to tell you anything? That it’s none of our business. Sit down until you have a relevant question.’ All we ask is that you guys be transparent. Let us know what is going on. You guys refuse to do that. The one person who does, you guys keep on admonishing. From day one, it’s been pretty apparent that you guys didn’t want her here. You guys, for some reason, don’t want her here. You guys need to work better and try harder to get her to work with you guys. She’s the only I’ve ever seen vote no on something, on anything, on that damn agenda. The look on your face when Janice comes up with something is ‘God, here we go again. Oh God, here she goes. She’s got another question.’ When she says, ‘I’ve got another question,’ you guys roll your eyes. So we know how you feel about Janice.”
Brenda Zarate said, “I urge you to exercise caution and compassion as you move forward on this vote. I urge you to reflect on the divisiveness and further acrimony that a censure vote might cause this largely already frayed Upland community. I urge you to consider how information about city matters might be found through basic and more savvy internet research on the part of many of us here in contrast to Councilor Elliot having necessarily leaked this information As elected officials, I realize you are in the public eye and vulnerable to criticisms, but this comes with the job. Certainly, I do not think that embarrassment should be a cause or criteria for censure. That said, Councilor Elliot, I also urge you to be mindful about what you post on social media and how you do this. It can be a forum for feeding frenzies and baseless speculation.”
Dawna Dorcas-Werner told the council, “What I am seeing tonight makes me very concerned. What is going on is not right. We expect more from our city council. Get it together. Upland should be better than this.”
Natalie Garrett said with regard to the accusations against Elliott contained in the censure resolution, “Some of those things are inaccurate.” She said Mayor Debbie Stone’s assertion that Elliott had been disruptive during meetings was false. “Either you are misinformed or you outright lied,” Garrett told Stone. “It is looking like a witch hunt.”
Stone and councilmembers Carol Timm, Sid Robinson and Gino Fillippi then took the floor and in what appeared to be a choreographed presentation, read different portions of the censure resolution. Stone, citing criticisms that Elliott had made of her council colleagues and some members of city staff, suggested she “can dish it out” but couldn’t take it. Timm excoriated Elliott for, she said, engaging with the press to concoct anti-government fusillades. Filippi and Timm, after reading from different parts of the censure resolution, dwelled on Elliott’s having compromised the city’s legal position in litigation it was involved in by having exchanges with opposing litigants, including revealing the amount of money that the city would be willing to pay to settle some of the cases.
Robinson suggested Elliot did not appreciate the harm she was doing to the city.
Stone, officiating over the meeting, gave Elliott an opportunity to respond. She then offered a defense of herself that lasted an hour and 20 minutes.
During a part of her presentation in which Elliott was seeking to explain the rationale for her having lodged a report with the district attorney’s office of what she suspected was a Brown Act violation by the city council, City Attorney James Markman repeatedly interrupted her, asserting that the council’s action did not rise to the level of an actual violation, and that the district attorney’s office had come to a conclusion that no violation had taken place. Markman asserted that the district attorney’s office had not used the term “violation” in characterizing the city’s action. Elliott, however, held her ground and engaged in a protracted debate with Markman over that point, asserting that the district attorney’s office had indeed found the council’s action to be disconcerting. When Markman disputed this, Elliott delivered a coup-de-grace in which she read from the letter sent to Markman by Deputy District Attorney Carlo DiCesare last October. “‘During our phone conversation, it seemed you understood our concerns about the propriety of discussing and signing the document in question during closed session,’” Elliott read from the letter DiCesare wrote. “‘Without admitting any violation of the Brown Act, you indicated the city council would not undertake any similar action in the future.’”
Turning aside Markman’s attempt to interrupt her, Elliot said, “The propriety. Gee, why would there be a concern about the propriety if it wasn’t about legality or illegality?” What would be improper about the meeting that the DA would address…”
At that point, Markman, who was nodding his head during the reading of DiCesare’s letter, again interrupted Elliott before she could finish her rhetorical question. He then made what many in attendance took to be a guarded concession that the council had acted improperly. “If the council would have acted on that,” Markman said, “that would be the impropriety. The council was stopped from doing that. It wasn’t going to do it again.”
Despite battling Markman to a standoff on legal points in their exchange, Elliott did not fare as well when the council took its vote on the motion by Stone to approve the censure, which was seconded by Filippi. The outcome was 4-to-1, with Elliott dissenting.
Thereafter, the council voted to establish a litigation committee of the city council to confer with legal counsel and provide direction to legal counsel concerning existing litigation, anticipated litigation and disposition of liability claims by a vote of 4-to-1, again with Elliott dissenting. The council held off on nominating members to the committee until its upcoming June 11 meeting.
Recently, Elliott has changed her political registration, withdrawing as a registered Democrat and instead registering by declining to state any party affiliation. The move reflects a complex set of purposes. Though she was elected to a four-year term in the 2016 election, which was then conducted at-large, and she will not need to step down from that post until 2020, the city has since that time adopted a ward electoral system. Under the ward map adopted with that change, Elliott lives in the city’s District 2, which lies north of Foothill and east of Euclid. The election for District 2 is scheduled to take place this year in November, such that if Elliott does not vie for election this year, she will be ineligible to run for council in 2020 when her current term expires. Thus, she is contemplating running in District 2, where Councilman Robinson also resides, this year. Of District 2’s 11,968 registered voters, 5,302, or 44.3 percent, are affiliated with the Republican Party, 3,661, or 30.6 percent, are Democrats and 2,484, or 20.8 percent, have declined to state. Because the Democratic Party touts itself as the party of the public employee unions, and because Elliott has emerged as the primary member of the council opposing the continuation of generous benefit packages for city employees, Elliott considers it propitious to end her direct association with the Democratic Party as the 2018 election approaches, to better be able to cast herself as Upland’s pension reform candidate.