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Sentinel 07-13-18

By Mark Gutglueck
Reports emanating from the Fifth Floor of the San Bernardino County Administrative Tower are that Gary McBride, who was chosen by the board of supervisors last October to serve as the county’s top administrator, is overmatched in the position and is being undone on an almost daily basis by the political vicissitudes besetting the position he holds.

Gary McBride

McBride was chosen as the long-term or so-called “permanent” replacement of Greg Devereaux as the county’s head staff member last year. Ostensibly and in some real measure, McBride was chosen on the strength of his impressive command of the county’s financial picture. County supervisors, having only relatively recently witnessed the county shake off the fiscal doldrums that gripped the county over the course of the six-year-long recession that began in 2007, collectively recognized that to overcome the most consuming challenges of running a $6 billion annual operation what was needed was someone at the helm who would be comprehensively knowledgeable with regard to the county’s budgetary issues.
There was, however, one other factor that played a role in McBride’s selection that was not publicly acknowledged, something that had more to do with his actual predecessor and the issue of that predecessor’s personality.
When the reins of the county were handed over to McBride, it was Dena Smith, who had long been the Clerk of the Board of Supervisors, who made the hand off. Smith at that point was functioning in the role of interim county chief executive, having moved into that post as the result of Greg Devereaux’s departure from the role of county chief executive officer earlier in 2017. It was thus Devereaux’s shoes that McBride was being called upon to fill, and it is the specter of Devereaux’s command that continues to hang over the county and its current top administrator.
For virtually anyone succeeding Devereaux, his would be a hard act to follow.
Since first landing a position in local government within San Bernardino County 27 years ago, Devereaux has cut the most impressive path imaginable, having achieved a stature that puts him head, shoulders and a good portion of his torso above that of the next highest achieving public administrator in the region. In 1991, he was hired to serve as Fontana’s redevelopment and housing manager as that city was on the brink of financial collapse, the result of a decade-and-a-half of mismanagement, malfeasance and graft on the part of a succession of public officials, in particular one-time Fontana City Manager Jack Ratelle.
Fontana’s financial situation overwhelmed each of the three city managers succeeding Ratelle – John O’Sullivan, Russ Carlsen and Jay Corey. When Corey departed in 1993, the city council elevated Devereaux to city manager. In four years he not only succeeded in lifting Fontana out of its intractable economic circumstance, but succeeded in putting that city on firm financial footing that would persist for more than two decades – to the present. Having witnessed the dramatic turnaround in Fontana, the Ontario City Council set about luring Devereaux to Ontario, succeeding in doing so in 1997. For the next dozen years he ran that city, likewise transforming it through a variety of strategies which had for the most part not been previously utilized. By 2009, Ontario had a total budget approaching $670 million – more than two-thirds of a billion dollars running through all of its funds annually – such that its financial numbers were more than double that of the next most financially dynamic city in San Bernardino County.
In November 2009, the county terminated Mark Uffer as the county’s top administrator, a position that then carried the title of county administrative officer. A recruitment drive throughout California to replace Uffer attracted 277 applicants. Sixteen of those applicants were given a second look, but inevitably, largely on the strength of his relationship with county supervisor Gary Ovitt, who was then chairman of the board of supervisors and had been mayor in Ontario during part of the time Devereaux was city manager there, Devereaux was selected. Devereaux was not hired into the post of county administrative officer – the title historically conferred upon San Bernardino County’s top employee – but rather the enhanced position of county chief executive officer. With that title came authority that none of his predecessor’s had enjoyed. Devereaux was given absolute autonomy with regard to overseeing the county’s operations as well as the hiring and firing of county department heads that went beyond the authority of any previous county administrative officer. The supervisors conferred on him a salary and benefit package unparalleled in county history and a so-called superbonus. The superbonus consisted of a provision written into his employment contract that he could not be removed as chief executive officer on anything less than four votes of the board of supervisors. Thus, the bare 3-2 majority vote that had knelled the exodus of Devereaux’s immediate predecessor and a number of top county administrators before that would be insufficient to terminate Devereaux. His firing could only come if a cause was cited and at least 80 percent of the board agreed to force him out. He was given a ten year-contract that guaranteed he would remain as chief executive officer for five years and provided him with the option of remaining another five years thereafter – with the board’s consent – as chief executive officer or instead transitioning into the position of “special projects” advisor.
Once in place, Devereaux ruled with an iron fist. The county, like the rest of the region, state and country, faced the fiscal challenges brought on by the financial collapse of 2007 and the lingering recession and stagnation that ensued. With the accompanying drawdown in revenue available to the county forcing successive rounds of belt tightening, Devereaux succeeded in extracting reluctant concessions from the unions representing county employees to allow the freezing of salaries and reduction of benefits, generating along the way a degree of enmity with elements of the county’s workforce and the unions representing them, but nevertheless keeping the county out of the red, while shielding the members of the board of supervisors, for the most part, from political harm. The absolute authority the supervisors allowed Devereaux to wield was a necessary ingredient in his success, augmented by calculation and precision and what were sometimes perceived as ruthless tactics. He, it seemed, more than the board of supervisors who were his ostensible political masters, was the entity in charge. Traditionally, the board of supervisors would set the policy and the county administrative officer would see that the policy was executed upon. Devereaux, however, for the most part formulated the policy, which the board simply ratified, so that Devereaux could put it into action. He instituted and effectively enforced a prohibition on members of the board having any substantive contact with the county’s department heads or county employees. Rather, communication between the board and county staff went through him. In 2010, one of the members of the board when he was hired was replaced in that year’s election. In 2012, the board changed again when two members were replaced. In 2014, his original patron on the board, Ovitt, departed. Yet through all of those changes, the newcomers were willing, more or less, to tolerate Devereaux’s dictatorial manner. They were essentially able to live with his style of having primacy in dealing with county staff and department heads because in the end he was able to do so more efficiently than they could, and the general consensus was that the outcome of his management was better than anything the board would have derived if its members were in control.
Still the same, there was a growing sentiment on the board that the arrangement by which they were cut off from direct interaction with the county’s department heads and staff was less than ideal. By late 2016, there was an increasing sense that after seven years some kind of change was in order. In January 2017, Devereaux announced that two months hence, in March 2017, he would invoke that part of his contract which would allow him to step into the role of special projects advisor. Dena Smith, the long-time clerk of the board of supervisors subsequently promoted to the position of Land Use Services Department director whom Devereaux had promoted to a deputy county executive officer position and later to the position of assistant chief county executive officer, was to replace him on an interim basis while the board sought to recruit a long-term or “permanent” replacement.
In carrying out that search, the consensus of the board was that they wanted someone who embodied all, or at least most, of the positive attributes that Devereaux possessed, particularly his comprehensive vision and energy, his readiness to serve as a buffer between controversy and them, his knowledge and competence. And while they were ready to infuse in his successor authority and reach, they wanted someone who was a bit less domineering or at least someone who would vector his authority down the chain of command rather than up that chain toward them. They wanted to empower someone who had the wisdom and expertise to make the county run smoothly, whose managerial judgment was sound, but who at the same time would also be willing to defer to their vision of what was best for the county if the new top administrator’s vision deviated to whatever degree from theirs. They wanted someone who would be willing to surrender back to them their ability to have direct interaction with the county’s department heads. In short, they wanted Devereaux-Lite.
They carried out a recruitment drive and search that involved reducing the selection pool to 35 serious candidates from within county government, other public agencies and the private sector, all of whom were interviewed in private. Following considerable contemplation, the board concluded that McBride best fit the bill.
For starters, he was a 23-year county employee who served a good portion of that time in a management capacity. He thus had more than a passing familiarity with the differing management styles that Devereaux and his predecessors had exhibited over the years. He knew the county intimately, having begun with the county in 1994 as a fiscal clerk in human services. He was promoted to staff analyst in the public health department in 1996, administrative analyst in the county administrative office in 2000, public health division chief in 2002, deputy executive officer in the county administrative office in 2006, and county chief financial officer in 2013.
Supervisor Robert Lovingood, who had acceded to the position of board chairman early in 2017, lauded McBride as a “standout candidate” distinguished by his “integrity, strong financial background and experience with the county.” Supervisor Curt Hagman cited McBride’s “wise counsel, innovative management style and commitment to accept nothing but the best from himself and all those around him.” Supervisor Josie Gonzales praised him as “visionary.” Supervisor Janice Rutherford expressed enthusiasm for McBride’s “passion for this organization.” Supervisor James Ramos said he had confidence in McBride based on his “abundant wealth of institutional knowledge.”
The glowing praise for McBride aside, the board did not entrust him with the comprehensive set of keys to the San Bernardino County Kingdom that had been vouchsafed to Devereaux. McBride was not provided with the superbonus Devereaux enjoyed, meaning he could be handed a pink slip on a bare majority 3-to-2 vote. Similarly, the board did not confer upon McBride the title of chief county executive officer. Rather, the previous title of county administrative officer was reinstated as the county’s top staff position with his promotion.
The Sentinel is informed that following a roughly three-month-long honeymoon, the marriage between the board and McBride began to sour in January or early February.
While McBride was a more-than-capable individual with regard to handling financial issues, his ability to smoothly, efficiently and satisfactorily manage the operation of an organization as large as that of the county is open to question. What is obvious is that he is not the A-type, Alpha-Dog personality that Greg Devereaux is.
In compliance with the board’s collective expectations, McBride from the outset of his tenure discontinued the practice of restricting the county’s department heads from having direct substantial contact with the board of supervisors. This apparently has had the unintended consequence of decreasing the degree of alacrity with which the county’s department heads react to the commands coming from McBride as compared to how they would snap to when Devereaux gave orders. From the standpoint of the board of supervisors, this is undesirable, since they want relatively quick action when they have given policy directives and have asked for certain action.
Meanwhile, Devereaux remains connected to the county’s governmental structure as he yet functions in the capacity of special projects advisor, which is essentially a consultancy position Simultaneously, Devereaux is working as a consultant with a bevy of governmental and private sector entities. Reportedly, Devereaux retains a degree of authority at the county, both as a consequence of his consultancy arrangement there and his longstanding status at the top of the heap. Some county employees still say they work for him. In particular, because doing so is in the interest of some of his current set of clients, Devereaux continues to exercise, the Sentinel has been told, reach into the county’s Land Use Services Department. In that venue and a few others, it is almost as if he never left the employ of the county and he is still a major shot caller. Indeed, some county employees have on occasion and quite recently referred to Devereaux as their “boss.”
A major factor in the rough sledding that McBride is experiencing is the division on the board that suddenly flared into existence some six months ago, precipitated by Supervisor Ramos’s decision to run for California Assembly in the 40th District. This, in turn, triggered a move by the incumbent 40th District Assemblyman, Marc Steinorth, to forego vying for reelection to the Assembly and instead seek election in the June Primary election to the Second District County Supervisor’s post held by Janice Rutherford. When Supervisor Curt Hagman endorsed Steinorth in that contest, it opened up a schism on the board that previously did not exist. Ultimately, Rutherford turned back Steinorth’s electoral challenge and is now set to remain as supervisor for another four years. The once amicable relationship she had with Hagman has suffered as a consequence of Hagman’s endorsement of Steinorth, and the frosty relationship between the two supervisors in recent months has been apparent in the sometimes tart exchanges between them during board meetings.
Throughout his tenure as county chief executive officer, Devereaux did not need to deal with any such scenario, as the board members throughout that time were more or less on genial terms with one another. Though it is not distinctly obvious at every turn, what appears to be the case is that a divide has opened on the council in which supervisors Rutherford and Gonzales are on one side, with supervisors Hagman and Ramos on the other. While there are individual issues involving the board that may not fit within that definition, there is evidence that this split is manifesting, with Supervisor Lovingood at a loss because the divide is spoiling, at least to a degree, his chairmanship, which he waited five years since his 2012 election to the board to attain, as the cooperative atmosphere that he was counting upon when he inherited the gavel late last year has evaporated. This has put McBride in a very delicate position, as he is now serving a board chairman who is less than pleased with the terms of his own existence in a politically tense atmosphere. McBride’s inability to resolve this dilemma is not endearing him to Lovingood. Though Devereaux did not have to confront such a situation, had such a circumstance presented itself, it likely would have proven far less challenging to him than it is to McBride, as Devereaux’s stronger personality would have reduced any board divisions to a secondary status to his own overriding will. Moreover, with his superbonus requiring that the board assemble four votes to axe him, any board divisions would have strengthened rather than weakened Devereaux. That is not quite the case with McBride, who is now in the position of potentially offending one board faction or another at any point when a difference over policy or other issues emerges and he recommends a course of action that one side or the other disagrees with. As the factions on the board that have formed are hardening, the way in which McBride reacts with regard to the issues of difference which crop up between those factions has become treacherous, such that he is no longer free to simply analyze those issues and offer a straightforward assessment and suggested course of action, as in doing so he may come down on one side of the political divide or another, inducing potential enmity with one or two or even three of his political masters. An accumulation of such disagreements over time carries with it the potential that a three-member majority willing to terminate McBride will emerge.
Not unlike practically all other governmental administrators, McBride is ill-equipped to deal with the lack of unity at the level above him.
One of McBride’s colleagues at the county who worked closely with him and served in a similar capacity and at the same level of advancement before McBride became chief financial officer told the Sentinel, “Gary is very smart and very capable. He knows finance like no one else. It’s just that politics and political infighting for sure are not his forte. When it came down to being in the position of county administrator, he wasn’t ready for the rodeo.”
McBride’s $422,761 annual total compensation contract as of its signing last October ran for four years, three months and three days, until February 28, 2022. While the board must declare a cause if it does fire him during the first fifteen months of his contract, beginning in March 2019 he is considered to be a completely at-will employee and can be let go for any reason, explained or unexplained.
There has been speculation as to what remedies might be applied to the situation. What has been suggested, on one hand, is that the board might move to strengthen McBride by altering his contract to give him the superbonus that Devereaux had, thereby upping his confidence and freeing him to act with the same degree of vigor in meeting the county’s burgeoning and emerging problems. On the other hand, it has been suggested that a solution might be had in the form of allowing McBride, by mutual consent, to return to his previous post as deputy administrator overseeing the county’s finances, and replacing him as county administrative officer with another candidate.
McBride did not respond to a series of questions pertaining to the circumstances he and the county are in more than eight months into his tenure as county administrative officer.
Similarly, most of the board’s members spurned questions about where they stand with McBride at this point.
Supervisor Curt Hagman demurred at responding to whether he would consider letting McBride return to his former position of chief financial officer if McBride either chose to leave, or the board elected to relieve him of, the top command position. Nor did he clarify whether, or to what extent, Devereaux is assisting or guiding McBride in the management of the county.
McBride, Hagman opined, “is doing a good job.” He said that he could not speak for how others on the board felt, but said, “I haven’t heard anything bad about him from anyone. I’m pleased with him.”
David Wert, the county’s official spokesman, told the Sentinel that “From my view on the front lines, nothing [suggesting McBride is in difficulty in his role as county administrative officer] rings true. The county is operating under the same paradigm that the board created in 2010-2011, and I haven’t seen or sensed any displeasure on the part of the board or a need or desire to step further into an executive role. No two people run an organization in exactly the same way, but the June 12 budget hearing is the best public evidence that Gary and the board are working well together.”

As was widely anticipated, newly elected Adelanto Councilwoman Joy Jeannette joined with Mayor Richard Kerr and Councilman John Woodard to fire long-suspended City Manager Gabriel Elliott in one of her first acts as an elected official Wednesday night.

Joy Jeannette

Jeannette was elected to the council in balloting carried out and completed June 5, the day of this year’s California Primary Election. The special election was needed because former Adelanto City Councilman Jermaine Wright was removed from office on January 3, just a little less than two months after he was arrested by the FBI in February on an arrest warrant prepared by the U.S. Attorney’s Office charging him with arranging to accept a bribe and attempted arson.
Wright was remanded to a jail cell for more than six months until his highly conditional release in late May. Under California law, an elected city council member must be removed from office after failing to attend all regularly scheduled meetings over a 60 day period. Wright had last attended a council meeting on October 25. The council, reduced to four members at that point, was unable to break a 2-to-2 deadlock with regard to finding Wright’s replacement.
Wright’s arrest grew out of an intensified scrutiny of the city carried out by federal authorities, including the FBI, the Securities and Exchange Commission, the IRS and the DEA over the city’s accelerated efforts which were initiated in 2015 to legalize and then aggressively promote businesses based in the city that involved marijuana cultivation and the sale of marijuana and cannabis-related products. Kerr, Wright and Woodard had enthusiastically embraced the concept of seizing upon the societal shift away from cannabis use prohibition toward a more liberal acceptance of the drug as one that could be used in both medical and recreational contexts to get in on the ground floor of legal and legitimized marijuana commercialization, thereby sailing the city out of the financial doldrums. The three of them were opposed in that approach by councilman Ed Camargo, who questioned the wisdom of having a city already beset with financial and social problems reinvent itself as a marijuana Mecca. The other member of the council, Charlie Glasper, was likewise concerned that drenching the city in cannabis might have untoward consequences, but he reluctantly went along with the council majority in the hope that the influx of cannabis-related operations in the city would provide it with an economic shot in the arm. Seventeen months before Kerr, Woodard and Glasper were swept into office in the November 2014 election in which Mayor Cari Thomas and councilmen Steve Baisden and Charles Valvo were displaced, the city council in June 2013 declared Adelanto to be in a state of fiscal emergency, a step preparatory toward seeking bankruptcy protection.
Under Kerr’s mayoral leadership the push to marijuanify Adelanto advanced at a rapid clip, during which time the city burned through four city managers, three city attorneys, a public works director and two city engineers, an assistant city engineer and the city’s environmental services director, all or most of whom departed because of their misgivings about the direction the city was taking or were forced out or fired because of their resistance to Kerr’s strategy.
In August 2017, the city council promoted its community services director, Elliott, to the position of city manager, with Kerr, Woodard, Wright and Glasper anticipating that he would facilitate the rapid instituting of an effort to expand the area in which cannabis-related production, warehousing, distribution, wholesaling and retailing activity could take place beyond the city’s industrial park, to which it had originally been limited. This included rezoning significant portions of the city to allow grass to be grown there, stored and processed, packaged and shipped or sold to end users. The city was also making a transition from limiting the activity to mere cultivation of medical marijuana, as was the original game plan, to the growing of a product intended to be smoked or consumed for its intoxicative effect, as well as permitting retail establishments such as clinics and dispensaries for medical marijuana sales to be set up, along with smoke shops, which might best be analogized to liquor stores. Throughout all of this, Kerr, Woodard and Wright were heavily associating with the applicants for permits and licenses to develop and operate these cannabis-oriented businesses, many of whom were pushing the envelope in encouraging city officials to minimize the regulations and standards normally applied to enterprises in the city, among them approvals for construction, occupation, infrastructure and utility provision and attendant code requirements, including waiving fees paid by project proponents and minimizing the scope of city inspections. Kerr, Woodard, Wright and to a lesser extent Glasper assented to most, if not all, of those requests. While Elliott had misgivings about the demands being placed upon him, the power of the four-vote bloc in control of the council made resisting the council majority’s dictates inadvisable for Elliott from a career standpoint, if not impossible in any practical sense.
Not quite three months into Elliott’s tenure as city manager, however, Wright was arrested, casting a pall over the city and reinforcing Elliott’s instinctive sense that complying with the council’s directives was fraught with complication and danger. Moreover, Wright’s arrest had severely chastened Glasper, who became reluctant nigh on to unwilling to support Kerr and Woodard in the headlong rush to transition Adelanto to a marijuana-based economy. The processing of scores of proposals for commercial cannabis operations in the city, from ones that had just been proposed to ones that needed little more than a city inspector’s initials on a plan check list or occupancy permit to open its doors, came to a screeching halt. At once, Kerr and Woodard recognized that Elliott was off the reservation and was no longer playing ball. They began to cast about for some means of either bringing him to heel or cashiering him and bringing in what would be Adelanto’ sixth city manager in less than three years. When Elliott refused to come to heel, Kerr persuaded two of the city’s female employees and a college student engaged in an internship with the city to file sexual harassment claims against the city manager. Using those complaints and the initiation of an investigation into them as a pretext, Kerr was able to persuade the council to put Elliott on paid administrative leave in December. Shortly thereafter, the city brought in as Elliott’s temporary replacement, on an interim basis, Mike Milhiser, a retired city manager with more than 25 years of experience in that capacity in Montclair, Ontario and Upland who in 2017 had served a six-month stint as interim city manager in Adelanto. Elliott remained on paid administrative leave, collecting $18,000 per month, as Kerr repeatedly agendized closed sessions of the council at its regular and special meetings in January, February, March and April to discuss Elliott’s performance and his termination. Kerr and Woodard, during those sessions, were unable to convince Glasper and Camargo to provide the third crucial vote to fire Elliott. The prospect that Kerr and Woodard would ever get Glasper and Camargo to go along with sacking Elliott evaporated at the end of February when the investigator looking into the sexual harassment allegations against Elliott returned a finding that failed to sustain the accusations. Despite his best efforts, Kerr was unable to get consent from Glasper and Camargo to make an appointment to replace Wright who would side with him and Woodard to establish a ruling coalition that would allow the city to get back on track with regard to approving the backlog of marijuana/cannabis-based enterprises on tap for inclusion as part of Adelanto’s business stock. Ultimately, the council voted to have Wright’s replacement chosen by the city’s voters at a special election that would coincide with the June Primary.
Three candidates came forth. Two of those, Diane Esmeralda-Holte and Ronald Beard, were clearly at odds with Kerr. The third, Joy Jeannette, who was appointed to the planning commission by Woodard and who had consistently voted as a member of the panel in support to the projects Woodard, Kerr and Wright favored. The crowd that had so much riding on Kerr and Woodard reestablishing their dominance in Adelanto – those seeking to establish cannabis-related operations in town – came forth to support Jeannette, providing her campaign directly with money to purchase radio and newspaper ads, or to print and mail glossy handbills and electioneering material supporting her, together with paying for billboards that provided her with overwhelming name recognition.
Meanwhile, Milhiser continued to oversee the city in an interim capacity. He was, however, a retiree, and regulations imposed by the California’s public employees’ pension system prevent retirees from working more than 960 hours within a fiscal year, which runs from July 1 through June 30. Thus, Milhiser was obliged to step down as acting city manager at the beginning of May. Kerr sought to fill that gap with the city’s current director of development services, Charles Rangel, who, Kerr felt, might prove amenable to his designs with regard to rezoning to accommodate the dozens of speculators who have already purchased land or are in escrow to buy land upon which they hope they will be able to operate cannabis-based businesses. Though Kerr made his best pitch to Camargo and Glasper, neither would give him the necessary third vote to hand the keys of the city to Rangel on a temporary basis.
On May 8, FBI and IRS agents armed with search warrants descended upon Adelanto City Hall, the Jet Room medical marijuana dispensary located at 17499 Adelanto Road just south of Joshua Avenue in Adelanto, a law office in the City of San Bernardino where the corporate headquarters for the Jet Room’s parent company is located, as well as Mayor Kerr’s Adelanto home. That search related to the continuation of the investigation into further graft allegations similar to the charges leveled against Wright.
In late May, by a unanimous vote of the four members of the council, Brad Letner, who had recently left his position as the executive director of the Hesperia Chamber of Commerce after nearly four years running that organization in his first civilian assignment after retiring as a lieutenant colonel with the U.S. Army, was selected to serve in the capacity of Adelanto’s acting city manager.
On June 5, the election was held, with Jeannette appearing to be the clear winner based upon unofficial results. Five weeks later, those results were certified and at Wednesday night’s city council meeting, Adelanto City Clerk Cindy Herrera stated that the final certified results of the election showed that Jeannette carried 49.61 percent of the vote, with 899 votes, Beard captured 364 votes or 20.09 percent and Holte garnered 549 votes or 30.3 percent.
Jeannette was sworn in and participated as a member of the city council in the closed session that preceded the evening’s open session. When the council filed back into the chambers after the closed session discussion, City Attorney Ruben Duran announced that the council had carried out “a performance evaluation of the city manager under Government Code Section 54957, which the council did consider, upon which the council considered item number 4, employee dismissal, discipline or release under Government Code Section 54957. On a motion by Mayor Kerr, seconded by Vice-Mayor Woodard, a vote of 3-2 with council members Glasper and Camargo opposed, the council voted to terminate the contract of Gabriel Elliot as the city manager.”
Reached by the Sentinel after the vote, Elliott said, “My heart goes out to the employees of the City of Adelanto who have to continue to work under those conditions.”
-Mark Gutglueck

The unseemly underbelly of municipal governance is due to loom into sharp focus next week at the San Bernardino City Council meeting when a local business owner will challenge the standards that municipality’s elected officials use in awarding city franchises. One issue that business owner will seek to raise is the degree to which the provision of campaign donations to the city’s ultimate echelon of decision-makers is skewering the city’s governmental and managerial processes.
For eighteen years, Manny Acosta has been attempting to convince officials with the City of San Bernardino to grant the company his father founded in 1978, Pepe’s Towing, a position on the police department’s towing rotation. Upon being assigned a position on the towing rotation, a company becomes eligible to engage in what is sometimes referred to as “involuntary tow services,” i.e., the towing of vehicles the police department deems needed for removal either because they are blocking a public thoroughfare, disabled, have been involved in collisions, were used in the commission of a crime or were being driven by a suspect or individual at the time of an arrest. The opportunity to provide such a service represents a means of revenue to towing companies, which in large measure draw their revenue from “voluntary tows,” i.e., ones requested by the vehicles’ legal owners. After making involuntary tows, the tow companies assess the vehicles’ owners a towing fee together with a vehicle storage/impound charge, which must be satisfied by the owner in order to recover his/her vehicle.
In 2008, the City of San Bernardino established a tow service policy codified in a franchise agreement that provided for one tow company per 35,000 people in the city. Thus, the city franchised six tow carriers. In 2011, the city’s existing franchise agreement with those six tow companies was extended five years. In 2016, those six carriers were extended for another five-year term.
Pepe’s Towing, which has grown into an operation functioning out of eight Inland Empire locations utilizing light, medium, heavy and extremely heavy capacity equipment, serves 24 law enforcement agencies including the Highway Patrol and the sheriff’s departments in San Bernardino and Riverside Counties. But the company has made no headway with the City of San Bernardino in getting on its towing rotation.
In April 2016, through its attorney, former San Bernardino City Attorney James Penman, Pepe’s towing redoubled its effort that it be added to the City of San Bernardino’s rotation. The city nevertheless bypassed the company. According to an August 23, 2017 letter from Penman to San Bernardino City Manager Andrea Travis-Miller, in 2016 then-City Manager Mark Scott and Police Chief Jerrod Berguan had recommended that Pepe’s be added to the towing rotation.
“We are informed that those recommendations were rejected by the city council,” Penman said.
According to Penman, Pepe’s Towing, because of the fuller line of towing equipment it possesses, is better equipped to meet the city’s needs than any of the other franchised towing companies.
“For many years, and on numerous occasions, the San Bernardino Police Department has contacted Pepe’s for assistance and has utilized Pepe’s services because other tow companies on the San Bernardino Police Department’s tow rotation list were, and precisely are, unable to meet the towing needs of the San Bernardino Police Department,” Penman wrote.
Additionally, Penman asserted, the ownership of three of the franchised tow companies had changed, giving the city the option of removing them from the rotation and replacing them with Pepe’s Towing or other qualified operators.
“Pepe’s further alleges that up to three of the current tow carriers, specifically City Towing, Hayes Towing, and Wilson Towing, were allegedly sold since they first contracted with the city and if so, they were, are, and have been out of compliance with Section 15, assignment, of their current tow service agreements unless the specific requirements of Section 15 were complied with in each instance,” Penman wrote. Accordingly, Penman maintained, “Said tow companies or company should currently be under suspension, and if not should be suspended forthwith. Section 17 c authorizes this city to immediately suspend any towing carrier ‘who has engaged in conduct constituting a flagrant violation of the agreement for tow services.’ It should be apparent that a failure to notify the city of a change in ownership pursuant to Section 15 constitutes a flagrant violation of the agreement, and should trigger the suspension(s) provided for in Section 17 c of the agreement.”
According to Penman, at least some of the franchised tow companies are in violation of other elements of the franchise agreement and the city has made no effort to redress those violations or remove the companies that are out of compliance with the franchise agreement from the rotation.
Specifically, according to Penman, “Pepe’s further alleges the city is also in violation of certain State and Federal laws pertaining to the prevention of the discharge of oil, solvents and other chemicals into the soil, and subsequently into the groundwater; this is because the city continues to permit certain tow companies, listed on the rotation list, to park towed and other vehicles on unimproved surfaces.”
In a letter dated February 24, 2017 to City Councilman John Valdivia, who is the chairman of the city’s legislative review committee, and then-City Manager Mark Scott, Penman wrote, “none of the current tow companies listed on the city’s tow rotation list are in compliance with the contracts most recently approved by the mayor and the common council of the City of San Bernardino in April of 2011.”
According to Penman, the city has failed and is continuing to fail to live up to its own standards and regulations regarding tow companies to be franchised, looking the other way when its franchisees have not met the standard the city has set. Simultaneously, he charged, city officials continue to spurn Pepe’s Towing’s application, even though that company meets the city’s specified standards.
According to Penman, “Pepe’s Towing alleges that only Big Z Towing and possibly Hayes Towing have the equipment necessary to tow Class B, medium, vehicles. Therefore, the remaining four tow carriers are allegedly in violation of Section 3 a, 5 j and 6 b of the tow services agreement.” Penman also maintained, “Pepe’s Towing alleges that none of the six tow carriers have the equipment necessary to tow all Class C heavy (big rig) vehicles. Therefore, all six tow carriers are allegedly in violation of Section 3 a, 5 j and 6 b of the tow services agreement. Pepe’s Towing alleges that none of the six tow carriers have sufficient space to store 200 vehicles on paved surfaces impenetrable to certain liquids, allegedly in violation of Sections 3 a and 5 a of the agreement.”
At least some of the city’s current franchised tow service providers are not equipped, Penman said, to preserve the towed vehicles and their contents in a secure circumstance that will prevent potential evidence to be used in criminal proceedings from being tampered with. “Pepe’s Towing alleges that not all of the six tow carriers have the ability to provided ‘indoor’ space that is sufficiently secure to store evidence for vehicles impounded by the San Bernardino Police Department,” Penman’s February 24, 2017 letter states. “Lack of said secure indoor storage for evidence is in violation of Sections 3 a and 5 b of the agreement.”
Pepe’s Towing, through Penman, last year followed a strategy of holding back on filing for a writ of mandamus to require the city to enforce the conditions of the agreement, which strategy anticipated that the city would undertake inspections of Pepe’s Towing’s allegations of lack of compliance on the part of the franchised tow companies. Since that time, with the city council’s reiterated rejection of Pepe’s Towing’s request to be put on the rotation, Pepe’s Towing has appealed that rejection, and numerous hearings on the appeal have been scheduled before the city council, only to be postponed.
Penman decried what he called the city’s “perpetuation of a monopoly in favor of privileged parties by assuring their continued placement on the San Bernardino Police Department’s tow rotation list.”
Penman’s letter writing campaign and the substance of the company’s appeal have softened no soap with the city, which has used the city attorney’s office, the same outfit that Penman once headed, to propound the view that the city’s franchised tow companies are in compliance with the franchise agreement contracts and that the city is entirely within its authority to restrict the number of tow companies on the police department’s tow rotation to the present six.
In a letter to Penman dated October 19, 2017, Chief Assistant City Attorney Jolena Grider wrote, “It is the city’s intention to open up the tow rotation to all qualified carriers at the expiration of the [current franchise] term in 2021. Although the city appreciates that your client, Pepe’s Towing, has been attempting to be added to the tow rotation, there has not been any openings on the list to allow the addition of a new carrier. The tow agreement allows for the assignment of the agreement to another entity that purchases the tow carrier’s business. This does not create an opening and require the city to open the position to any other carrier. While we understand that Pepe’s feels that it has been damaged, it is the city’s position that Pepe’s has no legal right to be added to the tow rotation list. If a position opens up prior to 2021, Pepe’s and all other qualified carriers will have the opportunity to submit an application for the position.”
An increasingly impatient Acosta has until now abided by Penman’s counsel and advice that they give city staff time to digest the substance of the appeal, do its own research and pass the information up the chain of municipal authority to the city council. In that way, Penman hoped the circumstance would be allowed to percolate so that the city council was given an opportunity to reflect on the fuller implication of the issues raised by the appeal. He advised that Acosta take no action which might offend the city council, which has the ultimate decision-making authority in the case. Recently, however, Acosta has come to the conclusion that his inability to get his company onto the towing rotation is not a technical or legal one but rather a function of the politics on the city council, as several of its members have received contributions to their political war chests from most, if not all of the franchised tow service operators. Valdivia, who is running for mayor this year, in particular has received over $20,000 from the towing service franchisees. The generosity the tow truck companies have demonstrated to the council, Acosta has concluded, leaves them collectively unwilling to undo the status quo. Accordingly, Acosta has signaled his willingness to take his effort to gain a place on the towing rotation to the next level. He has insisted that Penman grant the city no further postponement of the hearing on the appeal. He is ready to couple that with an information dissemination campaign. And, he indicated, he has the will to work to unseat as many of the city council members up for election in November as he can to forge a new attitude on the council.
“I have spent the last 18 years attempting to have it so Pepe’s Towing is able to provide towing services for the City of San Bernardino,” Acosta said. “The San Bernardino Police Department currently uses six tow companies, most for nearly 20 years without competition. Those companies are significantly lacking the facilities and quality of service required to comply with their contracts. In fact, Pepe’s is regularly called by the city to provide services the existing tow operators cannot provide.”
Acosta said the city and the towing companies bankrolling their political campaigns are not playing by the Marquis of Queensbury’s rules.
“In 2011, the city placed an additional barrier to competition by requiring all new tow applicants comply with a 65,000-square foot storage facility requirement,” Acosta said. “This requirement was not applied to the existing six tow companies. In fact, none of the current six companies have such space. With this unfair additional requirement, new tow operators will likely be priced out of the market. It would appear the requirement was intended to discourage competition and protect the existing six tow companies. Shutting out competition hurts the residents of San Bernardino. It keeps prices high and quality of service low. It creates the worst possible outcome for the city and consumers. Hopefully the mayor and city council will avoid the appearance of corruption and support a level playing field for competing firms.”
Four months ago, the city council signaled that it might make an accommodation with Pepe’s Towing, voting on March 7, 2018 to pass a resolution which authorized the city manager to initiate action to establish an additional tow carrier to the tow service agreement based on population density. The tow service agreement allows for one carrier per 35,000 residents. The City of San Bernardino population has grown to 216,239 as of 2016. Thus, allowing a seventh carrier is possible under the March resolution.
Difficulty for Pepe’s Towing ensued, however, when after it submitted an application, the San Bernardino Police Department traffic unit conducted an inspection at the Pepe’s Towing facility on March 27 and 28, 2018, determining the lot size was 39,834 square feet, some 25,166 square feet below the requirement. In April the city made further inquiries with Acosta over that issue, and he indicated his company would seek a secondary lot to meet the requirement. On April 13, 2018 Pepe’s Towing informed the city it had not obtained a secondary location. On April 16, the city mailed Pepe’s Towing a disqualification letter and provided five days to reply. On April 20, 2018, Police Captain Paul Williams received a call from Pepe’s Towing regarding a secondary lot on Waterman Avenue and a possible location on East 9th Street. The police department conducted an inspection at the lot on East 9th Street and found the lot size added to the main location was within the city’s requirements. On May 21, however, Pepe’s Towing informed the city that it was unable to obtain use of the secondary lot. Nearly three weeks previously, on May 1, 2018, the city was served with a notice of second amended appeal by Pepe’s Towing, pursuant to Municipal Code Section 2.64. The second amended appeal cited the previous refusals by the city manager and/or city attorney to investigate the allegations submitted by Pepe’s Towing last October that the other franchised carriers are out of compliance.
At present, it is city staff’s position that Pepe’s Towing “did not meet the requirements of the request for proposal” and the criteria outlined in the 2011 towing service agreement, the consideration that none of the current franchised tow service providers meet the same requirement notwithstanding. “Pepe’s Towing did not meet the requirements of the request for proposals and the towing service agreement (minimum 65,000 square foot of outside storage space) and failed to obtain a second lot to meet the requirement,” a report to the city council prepared for next week’s meeting by City Manager Andrea Travis-Miller, Police Chief Jarrod Berguan and Captain Paul Williams states.
Of significance is that the recommendation given to the city council in that report does not call on the council to deny Pepe’s Towing’s request to be allowed onto the towing rotation, though it does not ask the council to grant the request either.
“Review and consider all evidence presented at the public hearing and the information provided in this report as presented at the hearing and either grant or deny the Pepe’ Towing Services appeal,” the recommendation reads.
Councilman Fred Shorett today indicated he did not personally believe that a seventh carrier should be added to the rotation until the city’s population reaches 245,000. “I know that earlier this year I voted with the rest of the council in favor of adding a seventh carrier,” he said. “I regret that vote. I believe we set the ratio of 35,000 residents to one carrier for a reason. I don’t think we should add another carrier until we have population to match that ratio. Adding new carriers should be done only when we don’t diminish, we don’t reduce, the number of tows the tow companies are experiencing on a yearly or monthly basis. Six carriers at 35,000 population apiece is 210,000. We’re slightly above that in terms of population now. I don’t think we should add another carrier until we equal out at the seven times 35,000 level. The next increment is 245,000.”
Absent the city reaching the 245,000 population threshold, the only condition upon which Pepe’s Towing should be permitted onto the towing rotation, Shorett said, is if one of the current tow operators drops out or is disqualified.
“Being limited right now to six carriers is a separate issue from whether the carriers we have are compliant or not,” he said. “I think they are, but if someone has something to show they are not, then let’s see it. I think they should all be in compliance. If it turns out they are not, then we should give them a reasonable amount of time to come into compliance, and if they don’t, then we drop them from the list. I will not support adding another carrier to the list, a seventh carrier, unless one of the six drops out. We signed onto these contracts with these six carriers years ago. We guaranteed they would have so much work, so many tows, that would come from this contract, and they had to go out and invest in equipment and trucks and so forth. If we divide up that pie into one more slice, we cut the number of tows they will get and that will cut into their profit margin, maybe even make it unprofitable for them. A deal is a deal, and we have to live by the deal we made.”
Queried about the disparity between the requirement of having 65,000 square feet of outside storage space imposed on new applicants seeking admission onto the towing rotation and no such requirement for the current franchisees, Shorett sought to justify that discrepancy by saying that advantage for the existing carriers on the tow rotation had been “grandfathered” in. “We change criteria all the time,” he said. “If you get approval or are awarded a contract this year, next year the standard might change. You live up to the terms you were approved under. Future approvals might be different.”
With regard to Pepe Towing’s assertions that the franchised tow service companies are out of compliance, Shorett said, “That is something that is monitored by staff. As far as I know, every one of them is in compliance. Show me where the city allowed any one of them on the rotation who was not in compliance. Every one of them was in compliance when we approved the agreement. If they have fallen out of compliance, then someone should look into that. That isn’t my job. That’s a job for code enforcement, the city manager, the police department. If they are out of compliance and that is brought to our [the city council’s] attention we will take that up then and vote on that.”
Shorett sought to allay concern that the city council was trading favorable treatment for the franchised tow service providers in exchange for campaign donations.
“Anyone can look at our [Form] 460s [i.e., the campaign finance documents California’s elected officials must fill out] and see what money we are getting for our campaigns and who is giving it to us,” Shorett said. “I’m not hiding anything. I got, I think, $500 from Hayes and from Danny’s. I got $2,500 from Wilson. I also got money from Jason Desjardins; $2,500, I believe. I have been supportive of them. But if they fall out of compliance, they are gone. I don’t care if they’ve given me $25,000. I have never promised anyone anything for that money. I tell everyone, “If you like the way I govern, then donate to my campaign. I have turned money down when it was coming from someone who had some issue or project coming up and it wouldn’t have looked right. I have never asked for a certain amount of money from anyone. In all of my votes I try to do what is logical and fair. I am not commenting on all of my colleagues’ actions and motivations, except to say not everyone uses the same rationale that I do. I think [Councilman] Jim [Mulvihill] and [Councilwoman] Virginia [Marquez] are good people, honest people, doing what they think is best. I don’t think they are there to make money for themselves or collect campaign donations. I think Mayor [Carey] Davis lives up to the same standard. If someone gives me money, there are no guarantees. If you think you are buying my vote for $2,500, you should save your money because my vote is not for sale. You can’t buy my vote. I have made votes over the years that prove that. I have voted against my biggest backers, or at least some of them. I ask people to support me if they think I am doing a good job, and me doing a good job is why they should support me. But doing a good job does not include selling my vote.”
Acosta said the way the council votes next Wednesday will guide his immediate action and what he will do over the next four months, including seeking reform through the ballot box. “After nearly 20 years of patiently seeking an opportunity to fairly compete, enough is enough,” he said. “In response, we will appeal the city’s decision to deny our application based solely upon the unfair additional property requirement. Pepe’s invites other small business owners victimized by the city’s unfair business practices to join the effort and bring positive change to the mayor and city council. Now is the time to do the right thing. Those who refuse must go.”
-Mark Gutglueck

The Hesperia City Council on Wednesday filled the vacancy within its ranks that had formerly been occupied by one of San Bernardino County’s oldest elected officials with a 27-year-old who is now among the youngest of the county’s office holders.
Jeremiah Browsowske, who has made a determined rise in the San Bernardino County Republican Party establishment over the last six years, was chosen from among seven candidates to serve on the city council, plugging the gap created on the panel by the vacancy of Mayor Russ Blewett, who died in May.
Browsowske’s ascendency was both lauded and decried by elements of the political hierarchy in Hesperia, as in much of its aspect, Browsowske’s political trajectory is reminiscent of the political rise of Bill Postmus, the now disgraced political juggernaut who once appeared to be rocketing into the Victor Valley’s political stratosphere, only to plummet ignominiously to the desert floor in scandal.
At this point, Browsowske is firmly embraced by the council majority in Hesperia, the development community and the Republican Party, paralleling Postmus’ status a little less than two decades ago. And just like Postmus was in the mid-to-late 1990s before he acceded to the position of First District County Supervisor, Browsowske is not only a member in good standing with the High Desert Young Republicans but rather the central figure in that politically influential group.
Like Postmus, Browsowske was homegrown in the Victor Valley and its environs. After Browsowske graduated from Granite Hills High School in Apple Valley, he enrolled at Victor Valley College, where he was elected to the Associated Student Body Council and Senate, serving in the post of parliamentarian and ultimately rising to the position of ASB vice president. He became thoroughly involved in campus politics at Victor Valley College, including serving as a member of the budget committee and facilities committee. In addition, he served as the student representative on the Victor Valley College Measure JJ Oversight Committee, which was chartered to monitor the expenditure of $297,500,000 in general obligation bonds to upgrade, expand, and construct school facilities passed by more than fifty-five percent of Victor Valley’s voters in November 2008.
From there, Browsowske was drawn into what has been a continual life of politics, Republican politics specifically.
The parallels with Postmus are pointed ones.
As a young man, Postmus associated himself with Brad Mitzelfelt, a former Marine he met while attending Redlands University in the early 1990s. Together they were instrumental in creating the High Desert Young Republicans, through which they networked with Republican office holders of the day like Assemblyman and later State Senator Jim Brulte, Assemblywoman Kathleen Honeycutt and Assemblyman Keith Olberg. Also involved with Postmus and Mitzelfelt in the High Desert Young Republicans were Mark Kirk, Anthony Adams, Anthony Riley, and Tad Honeycutt, the son of Assemblywoman Honeycutt and her husband, Hesperia City Councilman Theron Honeycutt. That group of young men learned the mechanics of campaigning and then intensified their involvement in the Republican cause through involvement in the San Bernardino Republican Central Committee. In 2000, they collectively made a concerted effort to take their political activism to the next level, coalescing in an effort to elect Postmus First District County Supervisor. In so doing, they launched a full frontal assault on the incumbent supervisor, Kathy Davis, herself a Republican. The Postmus campaign set about demonizing Davis as an ideological backslider whose commitment to Republican ideals had been compromised by her association and cooperation with other members of the board of supervisors, which during her tenure had two Democratic members – Larry Walker and Jerry Eaves. The strategy worked and Postmus dislodged Davis, in so doing becoming at the age of 29 the third youngest member of the board of supervisors in San Bernardino County history. With his ascendancy to the board of supervisors, Postmus created a political machine that grew to dominate not just the Victor Valley but San Bernardino County. Honeycutt was elected to the Hesperia City Council, where he in time became mayor and was able to form a lock-tight ruling coalition that included Postmus’ political associates Dennis Nowicki, Bill Jensen and Jim Lindley. By 2004 Postmus, holding himself out as a rock-ribbed, Christian-and-family values, no-nonsense, pro-law enforcement conservative Republican who spewed Right Wing rhetoric at the drop of a hat, bestrode San Bernardino County as a political colossus, having been elevated to the chairmanship of both the San Bernardino County Board of Supervisors and the San Bernardino Republican Central Committee. In 2004, when then-President George Bush addressed the Republican National Convention that re-nominated him, seated in a prominent position on the stage behind the president, visible to the entire television viewing audience on the three major traditional broadcast networks and what were then the three primary cable news outlets, was Postmus, recognized as a major up-and coming star in the GOP Constellation. Using his political machine, Postmus consolidated power locally by vectoring enough money to local candidates to maintain GOP dominance among 19 of the county’s 24 city councils. He would eventually use that machine to get one of his closest political associates, Anthony Adams, elected to the California Assembly representing the Victor Valley. In 2006, Postmus used his political machine to effectuate his own election, mid-way in his second term as First District supervisor, as county assessor. His political reach was such that he was able to pull strings to have his former board colleagues select Mitzelfelt, who had served as his chief of staff throughout his time as supervisor, as his successor as First District supervisor. Even before Posmus was established as county assessor, the highest ranking taxing authority in the region, it was widely assumed that he was destined to become a congressman, the only question being whether he would bother to first serve in the state legislature as either an assemblyman or state senator or maybe both before he went on to Washington, D.C. The political machine he had created was able to tap into a virtually bottomless wellspring of campaign cash put up by the development industry based on his support of unbridled growth and his stand against regulation and land use restrictions that would in any way interfere with building proposals. He and his associates had mastered the art and science of using targeted mailers, ads and billboards to lionize and promote the candidates they favored and mercilessly savage Democrats or any Republicans who stood in the way of the Republican candidates Postmus favored, making himself Victor Valley’s/San Bernardino County’s de facto kingmaker. With his control of the county assessor’s office, a perch from which he controlled how little or how much land owners and business owners would have to pay in yearly taxes on their properties and business assets, Postmus was in a position to shake down those with deep pockets for contributions to his own campaign fund or to that of the Republican Party in exchange for lenient assessment treatment. Some were convinced that he would, after serving a decent interim of a decade or so in Congress, inevitably move on to become a U.S. Senator or governor. Then-Victorville Councilman Bob Hunter unabashedly told those around him that it was not inconceivable that by 2020 or 2024 Bill Postmus would be President of the United States. Less than two years into his term as assessor, however, there were a succession of revelations about Postmus that would dash forever his political prospects. The conservative persona that Postmus exhibited publicly, it turned out, was in virtually every respect diametric to his private self. He was a severely drug addicted homosexual who engaged in the most promiscuous activity imaginable, engaging in a so-called P & P, or Party and Play, lifestyle, in which he would on a daily basis troll specialty internet sites for men he had never before met interested in hooking up for one night stands in which they would engage in dawn-to-dusk methamphetamine-fueled sodomy marathons. While Postmus’s methamphetamine use was prodigious, involving converting it into a liquefied form and injecting it, his drug use was not limited to crystal meth. He also had an affinity for amyl nitrate as well as huffing, that is, engaging in the inhalation of chemical vapors from such sources as industrial solvents, paint thinner, gasoline, felt-tip markers, nail polish remover, glue, spray paint, aerosol sprays and nitrites, all for their euphoric effect. Top ranking county officials knew of Postmus drug use by his last year as supervisor, but had kept quiet about it, at least in part because of the tremendous authority and power he wielded over them. Rumors began to surface that the reclusiveness Postmus began to manifest after he was assessor was an attempt to mask his drug use. He weathered that storm, but ultimately, when the district attorney’s office began to look into reports that the assessor’s office was being used for partisan political purposes, methamphetamine and syringes to inject it were found when a search warrant was served at his residence. Ultimately, after Postmus’ secrets were revealed and it became known that he had hired into high paying assessor’s office positions no fewer than 13 of his political associates and/or one-time boyfriends who had no experience or expertise in the real estate industry nor skills with regard property appraisal or taxing policy, he imploded and resigned from office. He was criminally prosecuted, pleading guilty to 14 felony public corruption charges. No fewer than eight of his political associates were likewise arrested and charged with various crimes relating to the abuse of the governmental system and violations of public trust relating to their activities in conjunction with Postmus. Four of those were convicted.
Since Postmus’ demise, the Republican leadership in San Bernardino County has been on the lookout for someone who will fit the mold of what Postmus appeared to be before events overtook him: a young and charismatic, clean-cut, conservative values-espousing Republican who can electrify the party’s members. In 2009, shortly after Postmus’ fall from grace, the number of registered Democrats in San Bernardino County eclipsed the number of registered Republicans in San Bernardino County. For at least the previous three decades, the Republicans had been in ascendancy in San Bernardino County. Even after 2009, Republican candidates in San Bernardino County continued to outpoll their Democrat counterparts, largely on the basis of the tendency of Republicans to generally turn out to vote in far greater number than do Democrats. Thus, San Bernardino County yet remains as one of the last bastions of concentrated Republican office holders in the State of California, where the Democrats hold a near two-thirds majority in the state legislature and where its governor and both of the state’s U.S. Senators are Democrats and 39 of the state’s 53 members of Congress are Democrats. Finding someone who can replicate what Postmus did for the San Bernardino County Republican Party in the early part of the first decade of the Third Millennium is growing ever more critical, as the registration numbers throughout the county are trending ever more in favor of the Democrats, so lopsidedly in favor of the Democrats in roughly two thirds of county that they will very likely soon more than offset the greater Republican voter turn-out factor that is keeping the GOP on top in the county. Countywide, there are 359,122 registered Democrats, translating to 39.5 percent, countered by 277,045 Republicans, or 30.5 percent of the electorate. Those who registered with no party preference number 221,286, or 24.3 percent, with the renaming 5.7 percent registered as American Independent, Green Libertarian, Peace and Freedom or even more obscure party members. On San Bernardino County’s southwest end, in what is known as the Fourth District which includes Chino Hills, Chino, Ontario and Montclair, Democrats number 71,701 or 42.2 percent, matched by 46,219 Republicans or 27.2 percent, followed by 43,736 or 25.7 percent showing no party preference. In the county’s Second District, including north Upland, San Antonio Heights, Rancho Cucamonga, western Fontana and the county’s western mountain communities, Democrats tip the scales with 76,835 votes or 38.7 percent, with 63,753 or 32.1 percent registered as Republicans and 47,603 or 24 percent having no party affiliation. In the county’s center, the Fifth District consisting of east Fontana, Rialto, Bloomington, Colton and West San Bernardino, the Democrats are in overwhelming ascendancy, accounting for 81,381 registered voters or 49.4 percent to the Republicans’ 32,694 voters or 19.9 percent, who are outnumbered by the 42,256 voters or 25.7 percent with no party affiliation. On the county’s southeast end with an extension northward into the Mojave Desert, in what is known as the Third District, involving east San Bernardino, Grand Terrace, Loma Linda, Highland, Big Bear, Yucaipa, Yucca Valley, Twentynine Palms and Barstow, the Republicans enjoy a plurality with 72,705 or 36.4 registered with the GOP, 68,994 or 34.5 percent registered Democrats and 45,620 or 22.8 showing no party preference. In the county’s First District, which entails Adelanto, Apple Valley, Victorville, Phelan, Pinon Hills, Oak Hills and Hesperia, the Republicans hold the upper hand in terms of party affiliation, though barely, with 61,674 voters or 34.8 percent compared to the Democrats’ 60,321 or 34.1 percent and the 42,071 or 23.8 percent who decline to state a party preference.
Some Republicans have designs on building Browsowske into the Second Coming of Bill Postmus, the Messiah who can keep both the First District and San Bernardino County as a whole the Promised Land for the Party of Lincoln.
Wednesday night, a core group of Republicans – three of the members of the Hesperia City Council – signed on for opening the next political door for Browsowske. Nine city residents applied to the city to be considered as Blewett’s successor: Brigit Bennington, Jeremiah Browsowske, Victoria Dove, Russell Harris, Linda Holder, Robert Nelson, Anthony Rhoades, Veronica Rios and Chester Watts. After interviewing all of the candidates at City Hall except for Watts, who was infirm and could not attend, the council voted 3-to-1, with Paul Russ, Bill Holland and Rebekah Swanson prevailing, to appoint Browsowske. Councilman Larry Bird, who failed in his effort to have his colleagues hold off on the vote until a more thorough analysis of the candidates could be done, opposed the appointment. He wanted a six day delay until the next council meeting so “we can give ourselves time to consider all of the applications.” Bird made the point that conferring incumbency on Browsowske now would give him a leg up in the election in November, when the term Blewett was elected to will expire. “We might not have considered all of the factors that need to be considered in this, as not only considering filling this seat presently but also as we look to the election in November,” said Bird.
Russ, Holland and Swanson – all Republicans – went with Browsowske as the clear Republican establishment candidate. For them, putting Browsowske in office now and giving him an advantage in November was a positive consideration rather than a negative one. Over the last six years, Browsowske has embedded himself firmly in that establishment. In Hesperia in 2014, Browsowske laid the groundwork for the achievement he claimed this week when he engaged in fundraising efforts for Paul Russ’s city council campaign and was then given the assignment of managing Russ’s entire campaign. In a race for three positions with a total of 24,472 votes cast for eight candidates, Russ in 2014 managed to poll 3,808 or 15.56 percent, good enough for third place and a berth on the council.
After demonstrating commitment to the party, Browsowske was appointed at the age of 24, to the post of executive director of the San Bernardino County Republican Central Committee during Curt Hagman’s term as chairman three years ago.
“Jeremiah has a lot of experience,” Hagman said at the time. “He worked with a lot of other campaigns. He has a lot of energy. So do I.”
Browsowske, who was referred to by San Bernardino County party loyalists as “a young man with a plan,” sought to demonstrate his value to the party by pushing to staff party headquarters from 9-to-5 on weekends and to bring in party volunteers to man the office on weekends. He involved himself in eight campaigns for Republican candidates. Hagman credited Browsowske with guiding all eight of those candidates to victory.
While he was in that executive director position in 2016, Browsowske made a political move on his own behalf, seeking election to the Republican Central Committee, upon which there are eight allotted slots representing the First Supervisorial District. Eleven people ran in that election, including Russ, Rebekah Swanson, Swanson’s husband Eric and Eric Schmidt, who was then a Hesperia city councilman. Browsowske finished eleventh in the race.
Hagman, San Bernardino County’s Fourth District Supervisor, offered Browsowske a position with his office as well. Hagman seems particularly interested in grooming Browsowske for higher office, including supervisor, state legislature and Congress.
The Republican establishment, the Hesperia establishment and the construction industry wanted Browsowske appointed. His supporters over the last several weeks included former Hesperia Councilman and Mayor Bill Jensen; developers John “Dino” DeFazio and Tom Murphy; Naseem Farooqi, a developer representative; and architect Thomas Steeno. Their support pushed the city council, already leaning toward appointing Browsowske, to give Browsowske the nod.
Al Vogler, whose late wife Rita Vogler was a councilwoman and mayor in Hesperia over a decade ago, said he was uneasy with the alliance involving the Republican Party and the development community backing Browsowske.
“Several developers including Dino DeFazio came in and gave a pitch for him,” Vogler said. “Every Republican you can think of except me and a few in my circle wanted him. Paul Russ used him as his campaign manager four years ago. I see that as a conflict of interest and I don’t think Paul Russ should have participated in the vote. Curt Hagman, who should be engaged enough as it is with Chino and Chino Hills and down in Ontario, is behind him. What’s that about? He’s just a kid. What does he have and what does he know that would make Curt Hagman want him as an advisor? He’s way too young and way too inexperienced to be giving guidance to Curt Hagman. I think it is the other way around and this kid will be doing their bidding for them.”
Vogler continued, “The vast majority of the city’s residents did not want anyone picked for that position and wanted it to go to an election. But the three of them [Russ, Holland and Swanson] wouldn’t even consider that. They want him in there now, so he will run as an incumbent in November. Previti’s money will be used when he runs for council again in November. There’s no doubt about it: the kid’s going to run again. They want him back in there. He knows what the dance is and he’s part of it. They [the construction industry] put him in office and they’ve got his vote. It’s automatic. They may stage a charade in a few months and have him feign opposing them on one of their issues, but that will be to appease us and throw us off track. They are trying to create a supermachine here and it will be as bad as it was when Postmus was in office.”
Data sources show Browsowske to have lived or to have been associated with business operations in Winchester in Riverside County and in Independence in Inyo County. The website Simbi lists him as being employed as a “life coach.” He is also the principal in Next Generation Holdings, an advertising/political consulting firm.
During his interview by the council Wednesday night, Browsowske said, “A political bug got into me. I decided I like campaigns. I want to learn. I want to figure out how to do this policy thing but I like politics. I got involved with the Republican Party. The Republican Party gave me an opportunity to meet people all the way from Needles to Chino Hills. We have a huge county. So, I’ve been able to build relationships all across our county.”
Browsowske said he wanted to blend in with the existing political leadership in Hesperia.
“That’s what I’m applying for today, to be part of your team. I’m not applying to have my own agenda. There’s not the Jeremiah agenda. How do I become a part of the Hesperia City Council team and move forward the agenda that I think you guys have done a good job doing? You guys have brought economic development. You’re the gateway to the High Desert. If anybody comes from down the hill they have to go through Hesperia. So, as it stands right now, I’m applying to be a member of your team and I know there’s a lot I can learn. I think Council Member Russ can teach me a lot on the budget. I think Mayor Holland can teach me a lot about public safety. I would never go to you and say ‘Hey, Bill, or Mayor Holland, I know a lot more about public safety than you do. Obviously, we have two educators on the board. I’m not going to talk about education to you guys. So I come to it with a lot of understanding. I may be young. I have a lot to learn and I want to learn from you guys and work with you. I bring a lot of connections. I know your lobbyist, Tony Strickland very well. ”
Browsowske said of Hesperia, “I grew up here. I went to college here. I saw all my friends want to move away. Everybody wanted to leave. That wasn’t me. I want to make it a place where people live, work and play. I’d like to see Hesperia be a place where people of my generation have the ability of housing, to move to it. The number one priority for me is public safety. You have to be safe no matter where you’re at.”
In the council discussion prior to making the appointment, Russ in speaking of Browsowske offered a window on the San Bernardino County GOP’s game plan of empowering the party’s leaders by positioning them both in office and in positions of employment within the government, which was a key feature of Postmus’ approach and the creation of his political machine. “I didn’t know this person until four years ago when I started to run,” said Russ. “He was approached to me [sic] and said he wanted to help me run for my election. Over the last four years, I’ve gotten to know him a little bit. He works for the county. That experience is so valuable. I can tell you that is one of the things that has helped me most being on this council. I knew all five supervisors before I got elected. I knew every council member in the High Desert. In fact, I probably helped the majority of them get elected at one time, so having those relationships is very, very important. I think it’s also important that we have another generation come up and help. I think it would be good for this council to have a younger person on it that we can train and get part of the system because Bill [Holland], you’ve been here eight years. You might run again. That could give you twelve. I might run again. That gives me eight [years]. You know, we need to get some younger people and get them involved. With that, I’d like a motion that we appoint Jeremiah Brwsowske to the city council.”
In supporting her vote for Browsowske, Swanson said, “We heard tonight so much about so many people that can give so much to our community. Looking just at the paperwork and listening to every person, I did a tally in my head about the things we’re looking for in terms of someone with the ability to move into this position with knowledge already, and that’s part of my thinking process in this choice.”
Upon choosing Browsowske, the council then directed to have him sworn in that night so that next week he can participate as a member of the council in its closed door discussions prior to Tuesday night’s meeting, at which his ceremonial public swearing in is to take place.
-Mark Gutglueck

An Upland resident has taken her city up on its invitation to members of the public to legally dispute the intended sale of 4.631 acres of Memorial Park to San Antonio Community Hospital to be used for what the city claims will be a parking lot/parking structure.
On March 26 the Upland City Council on a 4-to-1 vote consented to selling 4.631 acres lying along the western periphery of Memorial Park to San Antonio Hospital for $4.2 million, translating to $906,931.55 per acre. The lion’s share of the property consists of a baseball field. Also to be taken over by the hospital is an open grassway dotted with mature trees, which encompasses the baseball diamond.
Concomitant to ratifying the sale, the city on May 16 also initiated a validation action pertaining to the agreement with San Antonio Regional Hospital. Validation procedures enable a public entity to confirm the legality of a given action, such as a contractual agreement. To validate such an action, the public entity, in effect, sues all persons deemed to be interested in the matter, inviting a court decision with regard to all issues any respondents might raise in answering the suit. Ultimately, the court’s decision is intended to make a determination that the action is allowable under existing law and thus valid. The court could, however, find the action of a public agency to be invalid. The overriding purpose of the validation process is to eliminate uncertainty by obtaining a judicial determination of the validity of the transaction based on existing law.
In its complaint for validation, the city laid out a multitude of reasons why it considers the sale to be valid and legally unassailable.
Local resident Marjorie Mikels, in an answer completed on July 4 and filed on July 6, undertook to answer all articles contained in the city’s complaint.
In her answer, Mikels propounded, “Answering defendant denies that plaintiff has any right, or entitlement to the relief sought in the complaint.”
Mikels maintained that there are “contradictory assertions of facts contained in the presenting documents.” She noted that the city says it is selling 4.63 acres, “but the form of the grant deed has not been provided to the public, and the accompanying parking easement agreement [specifies a] 5.5 acre parcel, a separate parcel map has not even been completed yet by the city as would be required to convey, so no one can see the actual amount of the city’s park land the city council intends to convey to private parties.”
Moreover, she states in her answer that the justification the city has cited for making the sale, essentially that the proceeds for the sale will be used for future park improvements, is invalid. Mikels disputed the city’s assertion in its filing that it would ensure “all net proceeds [would] be reinvested by the city to implement the city’s anticipated Memorial Park Master Plan, since such plan does not yet exist, has not been prepared, or presented to the public or approved by the city council. By [the] city’s own documents, over $4 million additional moneys would be required to complete such plan and the city has no present idea from where that money will come.”
Mikels said the city is not authorized to proceed with the sale because making the sale will violate the city’s general plan and zoning laws and codes, and the sale will “circumvent all of the legal [California] Government Code requirements pertaining to abandonment and sale of public park land.” She said it was impermissible for the city “to allow conversion of park/recreation/open space to office/professional of private owners for private business development without so much as an environmental impact report or compliance with California environmental laws.”
The city by its action was moving, Mikels said, “to sell off 12 percent of the valuable historic, irreplaceable 38.5 acres of Memorial Park, established in the 1930s when the population was likely less than 10,000 people, at a time now when the population has reached over 76,000 people.” This would, Mikels asserted, “deprive the lower-economic/minority community in which Memorial Park is situated of recreational land presently used as a ball park, substituting therefore office/professional development that has not even yet been disclosed, planned or seen by the interested affected public, deceitfully making it appear that our great hospital needs the land for parking when the assertion is patently false. Upland asks this court to be a party to violations of law, devastation of minority community recreational facilities, circumvention of environmental protections, deceit and omissions of material fact, via a validation action. This court has no power to waive law and the City of Upland may not rely on Code of Civil Procedure §860 to evade compliance with law. Upland has no legal authority to bring this validation action.”
Mikels quoted from the 1927 case of Slavich v. Hamilton, which states that it is a “well-settled principal of law that land which has been dedicated as a public park must be used in conformity with the terms of the dedication, and it is [outside] the power of a municipality to divert or withdraw the land from use for park purposes.” She said, “The legislature has enacted three different schemes concerning the abandonment of park property, and which one is used depends on the manner of acquisition of the property when it became a park. All three schemes… were avoided by this action, which circumvents the principal question of acquisition, and attempts to claim there is no ‘abandonment’ because the public will still get to use, ‘free of charge’ parking spaces at the new office-profession business development that is to replace the ball park.” She asserted that the “city’s plans show intent to eliminate two baseball fields in the park, only one to be replaced using valuable open park space and chopping down mature oak trees to do so.”
In her answer, Mikels noted that there was “insufficient information” available as to what restrictions had been placed on the city with regard to the use of the park property at the time of the acquisition of land to construct the park some 80 years or more ago. She alluded to the “failure of the city to provide to the public, or to this honorable court, the conveyances or deeds or other pertinent information divulging the means, methods, grantors, dates, and possible deed restrictions by which the city acquired the subject park property, and the actions taken by the city to dedicate, or accept or record with the county the park plans or otherwise formalize the acquisition and establishment of the park. This omission is fatal to the action herein, because the uses to which park property may be devoted (including its abandonment and sale) depend, to some extent, upon the manner of its acquisition whether dedicated by a donor, or purchased or condemned by the municipality.”
Mikels took issue with the city’s contention that the park is an “underused public space.” She said, “This is a false assertion by the city attempting to find grounds for justification to sell off the baseball field to the hospital’s assignee for office/professional purposes based on the city’s own negligence and incompetence in dealing with its city-wide homeless problem, and its police department’s failure to prevent illegal conduct.”
Mikels disputed the city’s assertion in the validation action that “San Antonio Regional Hospital is in need of land for parking.” She said, “This allegation is false and is a ruse or red herring to try to make it appear the hospital needs the baseball park property for parking when in reality upon approval of the patient tower expansion and the medical office building, the city approved parking plans to accommodate that growth, and required adequate parking as a condition of approval of both expansions. Duly-submitted parking plans were approved and are in existence without the need for additional parking in the Upland Memorial Park baseball field.”
Furthermore, she said, “The park property being sold is not to be used for parking, but for office/professional building construction purposes, and only the same number of parking spaces which exist today beside the baseball field will be available for non-exclusive use by park users.”
Mikels took further issue with the manner by which the Upland City Council ratified the sale, asserting the city had given its residents inadequate notice of the action it was to take when the sale was approved.
“The March 26, 2018 meeting agenda deceptively failed to properly identify Upland Memorial Park as the property which was being sold to San Antonio Regional Hospital, and there was no public hearing as required by law – the item was merely listed on the agenda as a ‘business item,’ as if selling off 12 percent of the oldest park in the community was a routine business item requiring no special input from the community and no special opportunity to address the council on that item,” Mikels’ answer to the validation suit states.
Mikels assailed the city for failing to “provide the true legal description” of the property to be sold, by having “not recorded a parcel map showing just what is being sold” and for failing “to provide a copy of the deed, showing the true assignee. No appraisal has ever been disclosed to the public to justify the [selling] price,” according to Mikels.
The city maintains that it used an independent third party appraiser to reach a conclusion that the park property has a value of $893.975.38 per acre, such that the $906,931.55 per acre purchase price San Antonio Hospital agreed to eradicated any conceivable assertion by those wishing to contest the sale that the city was engaging in a gift of public funds or acting improperly in closing the deal with the hospital.
The city made misrepresentations about the use to which the property being sold is to be put, Mikels said. The city further denied the city’s residents their right under the law to vote on the sale of municipal park property, she alleged. Mikels noted that the city said there would be “continued use of the property for park purposes,” which she said was claimed “in order to bypass the legal requirements for selling park property by saying that the ‘easement for public parking at no cost’ and ‘use of the sales proceeds for park improvement purposes’ satisfies that definition, when the Government Code (§§ 38440 – 38462) prohibits sale of the public park property without a special election, unless what is being sold is only a minor portion of the park, not 12 percent, in exchange for an equal or greater area or value of privately owned land contiguous to the park.”
Mikels said that such a sale without providing replacement property to be included in the park from which the property was excised is illegal. Moreover, she said, such a land swap could take place only after proper notice and a public hearing in which there is a “determination that the exchange is in the public interest.”
The filing of the validation petition, Mikels said, “asks the court to participate in a fraud on the electors and residents of the City of Upland by falsely asserting that this sale of park land is in conformity with the laws and enactments controlling these proceedings and that the agreement is lawful, valid and not subject to further challenge, and selling the land to the hospital or its assignee for development of an office/professional building will be a continued use by the public of the property ‘for park purposes.’ The scheme to sell off this park land without a vote of the electorate was and is fraudulent from its inception, and is defective, void and unenforceable against the public interests of the citizens of Upland and this answering party. The sale of this park land is a part of a larger pattern of fraud and corruption, self-dealing, conflict of interest, concealment of material fact, and trickery, designed by the city attorney and other officials, some elected and some ‘appointed,’ to manage a sale for private profit and interests, of the public’s park land, using their official authority and the guise and color of law to circumvent the laws designed to protect and preserve precious valuable open-space, park land, environmental amenities and recreational areas of the city. Those who orchestrated this deceitful scheme and theft on the public, again depriving the citizens of Upland of their statutory and Constitutional right to vote on issues pertaining to their public property, should be prosecuted criminally and civilly, not have their scheme sanctioned by this honorable court. The purchase and sale agreement and escrow instructions and all accompanying documents approved by the Upland City Council majority on March 26, 2018 at the behest of and upon assurances of the Upland city attorney are defective and unenforceable inasmuch as they violate the United States and California Constitutions’ Equal Protection clauses by treating some similarly situated and benefited properties and persons (i.e., lower-income minority families, neighborhoods and communities) differently than others, by depriving these communities of their precious park land, while planning to build parks far away in the northwest quadrant of the city, on land owned by wealthy favored private persons and developers, at locations not accessible by children on bicycle and foot, but only by vehicle, close to the upscale neighborhoods of the city, all without any rational bases for such disparate treatment, and without prior notice or opportunity to file a protest against or contest such unequal treatment.”
Mikels, who in addition to living in the city and operating a law office in Downtown Upland, was born at San Antonio Hospital. She asserted in the answer, “The plaintiff and its officers were negligent and careless and lazy with respect to the matters alleged in the complaint.”
This matter, for which a trial-setting conference is scheduled on November 16, is to be heard by Superior Court Judge Janet Frangie.
-Mark Gutglueck

San Bernardino National Forest announced today the availability of a draft Environmental Impact Statement (EIS) for Omya’s proposed expansion of the Butterfield and Sentinel quarries. The document is now available for public review and public comment, which closes after 45 days on August 28.
Omya is one of three corporations engaged in mining limestone and other calcium carbonate mineral resources on the north slope of the San Bernardino Mountains, above Lucerne Valley, on and adjacent to the national forest.
The adjacent Butterfield and Sentinel quarries are located entirely within portions of approximately 954 acres of unpatented placer claims controlled by Omya located on public land administered by the San Bernardino National Forest. The two quarries utilize the same crushing plant and share overburden stockpiles, haul and access roads.
The project is going through environmental analysis and public involvement under the National Environmental Policy Act. It is also going through analysis under the California Environmental Quality Act because the County of San Bernardino has jurisdiction over elements in the proposal.
Omya’s proposed mining plan is an expansion on the existing Butterfield and Sentinel quarries on U.S. Forest Service land: 30.6 acres of new ground at the Butterfield Quarry and 64.3 acres of new ground at the Sentinel Quarry. The proposal entails mining and concurrent reclamation over a period of 40 years.
A joint notice of availability has more details on the project and how to comment. All documents available for review can be found on the project webpage, under the Analysis tab, at https://www.fs.usda.gov/project/?project=32613.

By Count Friedrich von Olsen
Forgive me if I intrude unasked…
I am of course, a maximizing capitalist, worth how much? Is it $6 billion? Or is it $7 billion? I can’t remember. And as all know, I was a virulent anti-communist, a cold warrior. Nevertheless, if you ask me for my honest view, I think that Marx and Engels had it right. It is just that they came along two centuries too early. Their formula will work, I say, when the means of production become sufficiently efficient to require that society have a permanent leisure class…
So, some more leftist philosophy follows. Remember you heard it from the Count first…
There is no force outside this world which gives justice to the weak…
There is nothing but Man, and his standards are not consistent. One year you are right about a certain thing and the next year it has become a crime. The truth is there are no standards; only expediencies. The wind changes; the weathervane turns. That is what ideology is: A weathervane which is subject to expediency or whim…
There was an empress of Russia who made it high treason to wear pink. It was her favorite color, so she preserved it for herself. Materialism in the end teaches you to despise everything that is material. It leaves you with nothing of value. Survival is the only end worth living for. To live becomes the highest ideal, because after the end there is no reward for the good, no punishment for the evil…
Selfishness is the effort to derive happiness. Selfishness leaves everyone unhappy. We philosophize one way and then we act another. People seem kind and generous but they most likely are kind and generous because they hope to get something out of it…
Everything is a lie, but if you concentrate really hard and focus, you just might be able to distinguish one lie from another…
It is very charming to find an intelligent woman who does stupid things…
My line of business has taught me three things: 1) No one is to be trusted. 2) No one is to be believed. 3) Anyone is capable of doing anything…

By the time I got downtown, parked in the underground garage and took the elevator up to the 24th floor, I could tell that I was running about ten minutes late. I checked with the receptionist for my phone messages. There were three, including one regarding a settlement proposal on a proprietary trade method infringement case that had been going on entirely too long. I went to my office and let myself in. I opened my briefcase and pulled the Beinshcroth file and the receipts for the filings I had done the previous day out and hurriedly filed them into their appropriate places in the cabinet and cupboard next to and above my credenza. I retrieved the file on the Glidden case, the matter I was scheduled to be in court for in another 45 minutes. I flipped through it to make sure that all was in order. I then pulled the opposition’s two most recent filings, an order to show cause and a memorandum of points and authorities, and quickly read them over, mentally noting the counterpoints I would need make when I got to court. I closed up the folder and dropped it into my briefcase.

Leaving my office door unlocked, I took my briefcase and went out into the hallway, stopping briefly to jawbone with one of the other attorneys. I found one of the firm’s paralegals and told her about the settlement offer on the proprietary methods infringement case. I instructed her to go into my office and find the case file and pull from it the draft settlement document I had prepared months before, to find the computer disk in the same file, to take the disk and install it into her computer and summon from it the settlement manuscript and to incorporate into it the language on the points relayed to me by the receptionist’s note on yesterday’s phone call. I told her to use her judgment as to where the changes needed to be inserted and that I would be back to look everything over after I got back from court, hopefully before lunch.

I took the elevator down to the garage, found my car and drove out of the underground structure and through the streets, packed at that hour, toward the courthouse. I parked in the $5 all day lot and walked the three blocks to the courthouse’s front entrance and then made my way to the elevator. At the third floor I got out and went down to Judge Safford’s courtroom. Less than ten minutes later the judge unceremoniously came into the courtroom from the door leading into his chambers, and stepped up to the bench. The bailiff commanded everyone present to their feet, Safford seated himself and the bailiff announced his presence and commanded us to sit back down.

Safford, who had been a naval officer, ran his courtroom like a ship. A scale model of the destroyer he had commanded was displayed on a table in the far corner of the room next to the court clerk’s work station. On the back wall not too far from the table with the model ship was a framed painting depicting a War of 1812 naval clash between two American and British sail-bearing frigates, their cannons ablaze.

Inside fifteen minutes Safford had disposed of the first four matters on that day’s calendar. Glidden vs. Stockard was the fifth.

As it turned out, the hearing could not have gone better for me. I hardly said a word. Instead of having to launch into the short and concise argument I had intended to counter the petitioned-for order to show cause and accompanying protective order, I needed only to sit back and let Safford question opposing council, an inexperienced fellow out of Santa Monica by the name of Rydell, a green kid who could not have had his bar card for more than six months. It started as a questioning but evolved into a full-fledged dressing down.

“I’ve read all the materials filed to this point,” Safford began. “It is your contention, Mr. Rydell, that the requested documents and materials should be held confidential into either perpetuity or until the plaintiff makes a full showing of cause, as you term it in your filing.”

It was more of a statement than a question. Nevertheless, Rydell responded, “That is correct, your Honor.”

“And so that I am clear, Mr. Rydell, you would have the plaintiff make that demonstration how?”

“In the course of litigating this matter.” Rydell said.

“In the course of litigating this matter,” Safford said, and then repeated, “In the course of litigating this matter.” He brought his hands up off the bench so they were visible and then he folded them together, the fingers interlocking, and settled them down on the bench again. He seemed to glare at Rydell.

“And, Mr. Rydell, how is that to take place?”

“Your Honor?” Rydell was perplexed.

“How are we to litigate this matter?” Safford helped him.

“Upon the facts.”

“And how are we to establish those facts?”

“Through discover?” Rydell answered it like he was not actually sure.

“So how are we to achieve discovery if not through the production of documents and materials related to the matter being litigated?” Safford’s voice betrayed anger.

Rydell was in trouble. I almost wanted to help him. I did not. Instead I listened to him dig himself in even deeper.

“The better question, your Honor, would be why should the plaintiff be granted access to materials and effects of the defendant that are clearly and entirely confidential.”

Telling Safford that there were better questions than the ones he had formulated was an unbelievable faux-pas.

“Let me see if I have this straight,” Safford fairly thundered. “You are asserting a privilege over materials that go right to the heart of this case. You would deny the plaintiff the evidentiary gravamen needed to establish that case and are prepared to argue, are arguing, that since the case to establish the causes of action cannot be made without the materials you are withholding that the case is without merit. Am I accurately summarizing this?”

“The fact, your Honor, that the privileged materials are crucial to plaintiff’s case is incidental.”

“In other words, Mr. Rydell, any evidence that is inconvenient to or inconsistent with your client’s contentions in this matter can be deemed confidential and under that categorization be withheld from the court?”

“If by their nature they are confidential, yes.” Rydell asserted.

“Mr. Rydell, where did you go to law school?”

“Southwestern, your Honor.”

“While you were at that esteemed institution, did you have occasion to take a class in the rules of evidence?”

“Among others.”

“Well,’’ Safford began, but in mid-sentence seemed to rethink what he was about to say. “It’s not my place to be conducting refresher courses in the law. What I will say is this: This court is in the business of trying facts, facts as are in the public domain, facts as are presented in discovery, facts as are as stipulated to. You insult this court, Mr. Rydell, you insult the legal process, you’ve come damnably close to insulting my intelligence, when you on one hand tell me you are prepared to litigate this matter and on the other tell me you want the court’s sanction in withholding from me and opposing counsel the very facts upon which this matter is based. The case is already existent.  It is clearly apparent. The case is manifest. The case is the case. Ipso facto. The defendant will provide all sought after materials, without exception. Forthwith. Is that clear?”

“Yes, your Honor.”

Then, turning his head toward the court clerk, Safford said, “The motion is denied.”

At that point, Safford looked in my direction, and for the first time acknowledged my presence.

“Mr. Forsyth.”

“Yes, your Honor,” I said.

“The defendant’s provision of the requested materials notwithstanding, it is the court’s intention that all means of settling this matter be exhausted before we move on to trial. Assuming all the material you have requested comes into your possession within the next two weeks, what would be the earliest date by which you will be prepared to begin settlement discussions with opposing counsel?”

“I would need to fully digest the materials, but if there are no surprises or bombshells or major discoveries, I don’t anticipate more than reading time, a week or so, before I would be ready to present our requirements for satisfaction. Actually, your Honor, I would be prepared today to specify terms of settlement, if that should please the court. I have not done so to date because I did not believe the defendant is at all inclined to enter into those discussions.”

“Well, I am not going to prematurely shoehorn either you or Mr. Rydell into a shotgun wedding,” Safford said. He turned to look at a calendar on the wall. “How about the twenty-third of next month? If that is amenable to both parties, that is the date the court will set for a mandatory settlement conference on this matter.”

“Let me check, your Honor,” I said. I fumbled into my briefcase to find my appointment minder. I quickly leafed through the small black binder and found the 23^rd. There was nothing etched in for that date. “I’m entirely open on the 23^rd,” I said.

“And you, Mr. Rydell?” Safford asked.

“That’s fine,” said Rydell.

“Okay,” Safford said, turning again toward the court clerk, “November 23^rd at 9:30 p.m., mandatory settlement conference on Glidden vs. Stockard.” He returned his attention to Rydell. “And Mr. Rydell, I expect you to come forward at that time prepared to negotiate in good faith.”

“Yes, your Honor.”

Safford then called the title of the next case. I latched up my briefcase, slid my chair back on the carpeting and stood up. I turned and walked out of the litigant’s perimeter, up the gallery aisle and out of the courtroom.

Despite my exhaustion, there was a jaunt to my step as I walked down the third floor hallway. I heard some steps racing up behind my own and then heard Rydell’s voice, “Forsyth! Forsyth!” I stopped and turned. He looked agitated. Coming up behind him was Alvin Stockard, his client. I had not seen Stockard in the gallery when I was in court.

“Hey don’t let Old Man Safford get to you,” I started to say, and was about to follow it up with “He treats everyone with a baby bar number that way,” but I did not get the chance to say that part. I am not sure that Rydell even heard what I did say. Up close I could see that he was more than agitated. Apoplectic would better describe it.

“Forsyth, Goddammit! Don’t think that I don’t know exactly what was going on in there,” he sputtered.

“Yeah, you got your motion denied,” I said.

“Yeah, I sure did,” Rydell said. “And I know why, too.” There was foam at the left side of his mouth and miniscule drops of saliva flew out of the right side as his voice rose.

“You do,” I said. By that point Stockard was standing next to us.

“I sure do,” Rydell said.

“Right,” I said. “The motion didn’t meet the legal test.”

“It sure in the hell did,” Rydell said.

“Then why didn’t his Honor grant it?

“You damn well know why.”

“And what do I know?”

“Safford’s on the Exeter, Delbert, Sampson and Shuey payroll!”

I stood there dumbfounded for a couple of seconds, eyeball to eyeball with Rydell. Then I broke into a laugh, a genuine one, as the absurdity of the statement engulfed me.

“You’re not fooling anybody,” Rydell nearly yelled.

“Write out a declaration to that effect and file it with the court,” I said. “You can score even more points with Safford.”

“Really funny, Forsyth.”

“You’ve got a preemptory challenge,” I said. “Use it. Bring in another judge. Get a change of venue if you feel that way,” I said, starting to feel a little angry myself. “Judge shop. I’ll litigate this case in front of any judge in this state.”

“No,” Rydell said. “No. Were not going to judge shop. We’re not going to play your law firm’s game. We’re going to the Commission on Judicial Performance on Safford and to the state Bar on you.”

At this point Rydell’s voice had risen to a high enough pitch and level that a few of the people in the hallway nearby were watching and listening to us. I could not figure out whether Rydell was serious or if he was going through these histrionics just to impress Stockard. I did not like the idea of having anyone that happened to be within earshot while we were standing in the courthouse hearing that I was about to be summoned before the state Bar, though. I resisted the prompting to give Rydell, who probably was not older than 25, an avuncular lecture on how lawyers should comport themselves, the need for attorneys to refrain from taking personally every setback that they encounter in court and how he was actually doing a disservice to his client by dwelling on spurious issues that had no conceivable merit and were diverting his attention from the actual lawyering that needed to be done to defend the case.

Instead, I simply said, “Why don’t you go ahead and do that,” turned, and continued down to the elevator, which opened to let several people out as I arrived in front of it. I got in. A man and a woman, who both appeared to be lawyers but whom I did not recognize were already inside. We went up to the fourth floor, where they departed. I then went down to the first floor and from there headed out of the courthouse.

By the time I got back to the office, it was 10:30. I exchanged greetings with the receptionist and when she indicated there were no messages left for me in my absence, I went down to my office. I flipped through my Rolodex to the Bs, got the Beinschroths’ phone number and then punched it in on the phone. After three or four rings Mrs. Beinschroth came on the line. Mr. Beinschroth was not there, she told me. I then gave her a brief overview of what had occurred in court on the previous day. Exactly how Judge Parker was going to rule was not certain, I told her, but I explained that I had preserved her and her husband’s right to appeal if a ruling came down mandating them to sell the property. If there was such a mandate, I said, I would recommend that if they did not appeal the ruling that they be extremely hard-nosed in bargaining over the selling price. I assured her, though, that under California law and the technical requirements of the application of adverse possession, they held the upper hand. If Judge Parker was to rule against them, I said, he was going to have to tweak the law. She told me she would relay what I had told her to her husband. We said goodbye and I hung up.

Next I phoned Herb Glidden’s office to let him know what had occurred before Judge Safford earlier that morning. It took a while for his secretary to locate him. I gave him the news that Stockard’s request for the protective order did not fly and that the judge wanted us to explore a settlement solution prior to going to trial. I did not mention my encounter with Rydell following the court appearance.

“Alvin’s not going to go for that,” Glidden said in regard to the prospect of achieving an amicable settlement, and then used a couple of indelicate terms to characterize Stockard further. “He forced me into suing him. Believe me, he is going to make this whole thing as difficult as he can. Money is no object with the guy. And winning in the end won’t be important to him either. He’ll lose half a million to cost me a hundred thousand.”

I responded that the best strategy, then, was for us to keep our cool and let Rydell and Stockard work themselves up to a frenzy while we just ushered the matter through the court step by step. Glidden agreed and told me to stay the course and let him know if anything important came up. We hung up. For a half minute or so I dwelled on what he had said about Alvin Stockard being willing to lose money on the case if that merely succeeded in exasperating Glidden. If money was not a consideration for Stockard, I wondered why he had retained an unsophisticated, wet-behind-the-ears, third-rate shyster out of Santa Monica to represent him. Surely he could have afforded a lawyer from a respected firm downtown, or on Century City Boulevard or The Avenue of the Stars. I considered then that maybe he had tried to interest a competent attorney or two –or maybe a dozen – in defending the case we had brought and they had shot straight with him. Rydell was probably the first counsel he could find who was willing to tell him what he wanted to hear.

I went out into the hall and took the railed staircase that ran up to the firm’s offices on the 25^th floor. I went over to the set of cubicles that served as the typing stations for the paralegals and secretaries. I found Kelly, the paralegal to whom I had entrusted the settlement draft for the proprietary methods infringement case, seated before her computer monitor. I could see that she was working on the settlement agreement draft. She looked to the side and acknowledged my presence. “I’m just polishing the language,” she said. I found a chair and pulled it over to seat myself so I was not crowding her but could still see the monitor. She had done a decent job, at least on the page that was visible. I caught one item: I instructed her to change the phrase “in perpetuity” to “for the duration of any applicable patent(s), or until such time as the subject technology is deemed by due and competent authority to have moved into the public domain.” She made the change.

When she had run all the way through the manuscript and was satisfied with it, I told her I would review and proofread it. We changed places so I could sit directly in front of the monitor and keyboard. The manuscript as she drafted it ran to just over four pages. I made only one further change, a minor one, breaking up one of the paragraphs to set stipulations relating to future licensing revenues apart from past residuals. After I read it through once and incorporated that change, I reread it.

“Not bad,” I said. “Okay, save it and print four copies. Keep one for your file and bring the other three up to my office.”

“Will do, Mr. Forsyth,” Kelly said.

“Steve,” I corrected her. “Mr. Forsyth was my father.”

“Okay, Steve.”

“And bring my disk back up with you.”

“Yes, Mr. For… Steve.”

I stood up and went out from the cubicles to the stairs and then down to the 24^th floor and to my office.

I opened my briefcase and pulled the folder with the Glidden v. Stockard materials in it out and set it into its place in the file cabinet next to my desk. I picked out from my briefcase the little black leather bound appointment minder and found that week. I looked to see what was on tap for me the next day, Thursday. No scheduled court appearances. That came as a sudden relief. I looked at Friday. There were two hearings, one downtown at 9:30 and one out in Santa Monica at 1:30. I closed the book and put it into its place in the briefcase. For a couple of hours that day and most of the next I would have time to take care of the problem hanging over me. It was just that at that moment, I did not know exactly what I was going to do. My first, impromptu, flying-by-the-seat-of-my-pants plan had fallen apart when the Forty-niner interrupted me early on Tuesday morning.  It remained an extremely delicate situation, and with all of my focus I could not yet come up with a game plan. I realized, still the same, that it would be better to take no immediate action rather than do something risky, or to put it more accurately, too risky. The present situation was already risky. I needed to act, with dispatch and efficiency and above all with stealth. Such stealth as would not in any way arouse suspicion. But I had not the mental acuity at that moment to envision exactly what. I felt suddenly exhausted. I had slept what? Six or seven hours in the last two-and-a-half days. All of that morning really I had been flying on autopilot. Without realizing it, that free associative reverie that for me proceeds dreams and sleep was on me. I was nodding off right there in my office. I am not sure exactly how long I was sitting there dozing when Kelly came in.

“Here you go,” she said, jostling me out of my incipient slumber. She set the three copies down on the desk. Then she handed me the computer disk.

“Excellent,” I said, trying to make it seem like I was fully alert. She went back out.

I grabbed a felt marker out of my desk drawer and, after affixing a label to the disk, labeled it as the Tillotson/Stewart settlement draft. I put it in the bin containing my collection of disks. I picked up the topmost printed copy of the draft settlement and read over it one more time. I then went through my Rolodex, found the phone number for Tillotson Industries, and made the call. When the company’s PBX operator answered I asked for Robert Tillotson. She patched me through to his executive secretary. I asked for Mr. Tillotson. She asked who I was. I told her. She said he was about to catch a flight out to Denver and was pressed for time. I told her what my call was about and she said she’d see if he could take the call. About fifteen seconds later, Bob came on the line. I told him about Stewart’s willingness to settle. He gruffly remarked that it was about time. I told him I had the settlement draft ready to go, that I would be forwarding him a copy to go over and that if he found it acceptable, he could sign the version I mailed and get it back to me. He said he would be looking forward to it and we hung up. I then called the office of Michael Brandon, the attorney representing Bruce Stewart, who had made multi-millions in the last ten years by essentially stealing a technique Tillotson had developed twenty-five years earlier for inserting self backing and securing rivets into inaccessible double-thick sheet metal enclosures. Brandon was not in, but I told his secretary I had the settlement document drafted and I would be forwarding them copies by facsimile and post.

After I hung up, I fired up my computer and quickly typed short cover letters to Brandon and Tillotson to accompany the settlement documents. I took them down to the copy room and faxed them to their intended recipients and then put them into manila envelopes, addressed them and set them into the outgoing mail basket.

I went back to my office and pulled out from my file cabinet the files on the two cases I was scheduled to appear on on Friday. I checked everything over to make sure all was in order. It appeared so. I read the most recent opposition pleadings in each matter and, somewhat languidly given my recent sleep deprivation, mentally rehearsed the verbal responses I might be called upon in court to give when the time came. I put the file folders into my briefcase and latched it up. I took it with me, locked up my office and headed out toward the elevator. Before I took the elevator down to the basement, I told the receptionist I was leaving for the day.

Brodiaea filifolia, known by the common name threadleaf brodiaea, is a rare species of flowering plant in the cluster-lily genus. It is endemic to southern California, mostly in the region around the junction of Orange, Riverside, and San Diego Counties, but it is also found in open areas containing or associated with patches of coastal-sage scrub found in San Bernardino County. The range of this species extends from the foothills of the San Gabriel Mountains at Glendora in Los Angeles County, east to Arrowhead Hot Springs in the western foothills of the San Bernardino Mountains in San Bernardino County, and south through eastern Orange and western Riverside counties to the City of San Diego.
Thread-leaved brodiaea is a member of the brodiaea family (Themidaceae) and is a perennial bulbiferous herb. The bulb is a resident of scattered remaining vernal pool, alkali playa and grassland habitats. It is a federally listed threatened species and it is listed as an endangered species on the state level.
The genus Brodiaea was named after the Scottish botanist J. J. Brodie. The species name filifolia literally means thread-leaved.
Brodiaea filifolia is a perennial, producing a flower cluster 20 to 30 centimeters tall which bears bright purple, blue to red-purple flowers. Each flower has six spreading petals/sepals/tepals 1 to 1.5 centimeters long with a center containing three stamens and narrow or small staminodes, which are flat sterile stamens lying against the petals/sepals/tepals. It produces several linear leaves from an underground corm. Its flowers are at the terminus of a leafless stalk.
This plant occurs in grassland areas, often in floodplains, and it is a member of the local vernal pool flora and grassland habitats. It requires heavy clay soils. This type of habitat is becoming very rare as it is being cleared for development, especially as residential areas expand.
Thread-leaved brodiaea is a California endangered plant species, which means that killing or possession of plants collected from the wild is prohibited by the California Endangered Species Act. This species is also listed as threatened under the federal Endangered Species Act. At the time of federal listing in 1998, the U.S. Fish and Wildlife Service identified loss of habitat from urbanization and agricultural conversion as the most significant threat to thread-leaved brodiaea. Since that time, urbanization has remained the most significant threat to the species because populations occur in close proximity to heavily urbanized areas. Other threats to thread-leaved brodiaea include alteration of hydrology and impacts from livestock grazing, unauthorized off-highway vehicle activity, discing and mowing for fire suppression, and competition from nonnative plants. The dumping of livestock manure and sewage dumping has also been identified as a threat to a few localized populations in Riverside County.
The plant is also at risk for reduced genetic variability. It often reproduces vegetatively by producing new corms, a method of cloning which does not produce individuals with new combinations of genes. When the plant does reproduce sexually, it requires unrelated individuals which have different genes; it cannot fertilize itself, nor can it successfully reproduce with closely related individuals. Small population sizes that have low genetic diversity and wide distances between populations make it less likely the plant will successfully undergo sexual reproduction. The plant sometimes hybridizes with Brodiaea orcuttii.
There have been 103 remaining occurrences of this species quantified in widely spaced locations between the San Gabriel Mountains and west-central San Diego County, according to the California Natural Diversity Database. Several occurrences have been discovered since the plant joined the endangered species list, including locations on Camp Pendleton, and a few have been extirpated.
Although urbanization remains the most prominent threat to thread-leaved brodiaea, several populations of this species have been protected by regional planning efforts. Long-term conservation of thread-leaved brodiaea is dependent upon continued protection of additional existing occurrences and minimization of habitat loss caused by development. According to the California Department of Fish and Wildlife, “Sites with large or geographically distinct populations of this species should be acquired and protected, and nonnative plants should be controlled and managed on sites that have been set aside for conservation. Research on thread-leaved brodiaea should be conducted that focuses on pollinators and their impact on the number of new plants that are developed, soil characteristics that facilitate establishment and propagation, and germination.”

From Wikipedia, www.wildlife.ca.gov, http://calscape.org and http://www.glendoranaturalhistory.com