Kirk Sues County For $40M Over His Travails As A Defendant In Postmus Era Scandal Trial

It was not the Colonies Partners, its employees and consultants and the quartet of public officials that company provided four $100,000 campaign contributions to in 2007 who corrupted the function of government in San Bernardino County shortly after the turn of the millennium, Mark Kirk, a senior governmental official prosecuted after he was caught up in the Bill Postmus-era political scandal of a decade ago is now claiming.
The Colonies Partners, a Rancho Cucamonga-based development consortium headed by Jeff Burum and Dan Richards, provided the $400,000 in contributions to those county officials after the county in late 2006 conferred a $102 million settlement on the Colonies Partners to close out a lawsuit that company had brought against the county and its flood control district in 2002. Those donations were no quid pro quo, according to Kirk, the one-time chief of staff to former San Bernardino County Supervisor Gary Ovitt. Rather, Kirk maintains, it was county officials who opposed settling the lawsuit relating to flood control issues at the company’s Colonies at San Antonio and Colonies Crossroads residential and commercial subdivisions in north Upland who were up to no good. The $400,000 in political contributions Colonies Partners managing principals Jeff Burum and Dan Richards provided to the public officials who were instrumental in conferring the $102 million payout on their company were intended, Kirk claims, to enable the recipients, one of whom was convicted and three of whom have since been acquitted on political corruption charges, to engineer and carry out campaigns to remove from office those Kirk claims had obstructed the Colonies Partners in seeking to develop the property located within a flood plain in north Upland that company had purchased at a bargain basement rate from the San Antonio Water Company in 1997.
In a federal lawsuit seeking $40 million in damages filed on July 30, Kirk defended his action while assailing prosecutors and county officials for malicious prosecution, retaliation and fabrication of evidence
In May 2011 Kirk was among four individuals named in a 29-count 40-charge indictment. He was charged with conspiracy, bribery, improper influence, forgery, misappropriation of public funds by a public officer, engaging in a conflict of interest, filing a fraudulent tax return, willful failure to file a tax return,  perjury and filing a false instrument.
The indictment alleged Kirk, former San Bernardino County Supervisor Paul Biane, one-time sheriff’s deputies union president/Assistant Assessor Jim Erwin and Colonies Partners Co-Managing Principal Jeff Burum had engaged in a conspiracy that also involved former Supervisor/County Assessor Bill Postmus. That indictment alleged Erwin assisted Burum in threatening, coercing, blackmailing and extorting both Biane and Bill Postmus into settling, for $102 million, the lawsuit Burum’s company had lodged against the county. In November 2006, four years after that lawsuit had been filed, the board of supervisors voted 3-to-2, with supervisors Bill Postmus, Paul Biane and Gary Ovitt prevailing over supervisors Josie Gonzales and Dennis Hansberger, to end the legal wrangling with the $102 million payout. The indictment alleged that Kirk had participated in the scheme by influencing his boss, Ovitt, to join with Postmus and Biane in supporting the lawsuit settlement. In return, according to the indictment, Burum through his company made two separate $50,000 donations for a total of $100,000 to political action committees set up and controlled by Postmus and three separate $100,000 donations to political action committees set up for or by Biane, Kirk and Erwin. Those donations were thinly-disguised bribes, according to prosecutors, that were intended as rewards for having supported or helping to effectuate the settlement.
One year and three months before the indictment, Postmus and Erwin were charged with a host of crimes relating to the settlement of the lawsuit with the Colonies Partners. In a plea agreement he entered into with the district attorney’s office in March 2011, Postmus pleaded guilty to 15 felony counts involving conspiracy to accept a bribe, receiving bribes, perjury, misappropriation of public funds, possession of a controlled substance, and conflict of interest. He then turned state’s evidence and was the star witness before the grand jury that indicted Burum, Biane, Erwin and Kirk. He was a primary witness in the trial for Kirk, Biane, Erwin and Burum last year.
More than five-and-a-half years after the indictment was handed down, when the case went to the trial last year, the lion’s share of the 29 counts and 40 charges against all four defendants had been dismissed.
Some three months after the indictment, in August 2011, San Bernardino County Superior Court Judge Brian McCarville dismissed the misappropriation of public funds by a public officer against Kirk and tossed out two counts of bribery, two counts of asking for/receiving a bribe and one count of conflict of interest against Burum, as well as one count of misappropriation of public funds by a public officer against Biane and Erwin. Prosecutors appealed that ruling and managed to have the charges reinstated. Nevertheless, in July 2014, the defense scored what was by certain interpretations the most important victory of the case when Judge Michael A. Smith, who would eventually preside over the matter when it went to trial in 2017, threw out the conspiracy charges against the defendants. That dismissal came as a consequence of procedural rather than factual grounds. Smith ruled that the theory prosecutors relied on in loading conspiracy charges into the indictment, specifically that there was a four-year rather than a three-year statute of limitations on the conspiracy charges, was in error. Smith thus dismissed all of the conspiracy counts lodged against all four defendants. Though the prosecution sought to overturn that ruling, it failed to do so, and the narrative the prosecution was thus able to proceed with at trial proved, ultimately, insufficient to gain convictions. The trial lasted more than seven months between January and August 2017, with two juries having been impaneled prior to that, in December 2016, one to consider and cast a verdict on the evidence and testimony presented against Kirk, Biane and Burum and another panel selected to decide the fate of Erwin. This arrangement was necessary because the prosecution team, in this case aided by investigators with the district attorney’s office, had obtained statements from Erwin. While prosecutors were at liberty to introduce those statements as evidence against Erwin, Erwin’s insistence on invoking his Fifth Amendment right against self incrimination and testifying at trial deprived the defense for Kirk, Biane and Burum of the opportunity to cross examine him. Thus to preserve Kirk’s, Biane’s and Burum’s Sixth Amendment rights to confront their accusers and any witnesses against them, their jury was excluded from the proceedings when the recorded statements of Erwin taken by the investigators were introduced at the trial.
The trial featured high and low points for both the prosecution and the defense. The star witnesses were Bill Postmus and Adam Aleman. Aleman had been Postmus’ political Man Friday, confidant and appointee to the position of assistant county assessor after Postmus left his position as supervisor to become county assessor. Both provided what was arguably the strongest testimony supporting the prosecution’s narrative of the trial’s 39 witnesses. Nevertheless, defense attorneys managed to sidle up to Postmus and get him to attenuate much of what he said and they concentrated immense firepower upon Aleman in an effort to damage his credibility. On May 1, 2017 just shy of four full months into the trial, the oftentimes sputtering prosecution was able to get into gear and delve fully into the gravitas of the case when Postmus took the stand. In the first-two-and-one-half hours of direct examination by Supervising San Bernardino County Deputy District Attorney Lewis Cope, the former county supervisor provided more riveting, dynamic and dramatic testimony than had been heard from the previous 33 witnesses up to that point combined. Providing an unvarnished account of how he had first familiarized himself with Burum on a trade mission to China in September 2005 during which Burum befriended him and then lobbied him to settle the lawsuit, Postmus confirmed the previous testimony by numerous witnesses who said he essentially commandeered from Paul Biane the role of the major champion on the board of supervisors for forging a settlement of the civil suit the Colonies Partners had lodged over the difficulty it was experiencing with the county’s flood control district relating to constructing adequate infrastructure to handle storm water run-off at the Colonies project site in Upland. Burum provided him with an assurance of future financial support in his political endeavors, Postmus testified, as well as in any business ventures he might undertake if he left political life, and he said that they discussed Burum putting him on the board of a nonprofit corporation Burum had founded, but only if the litigation was settled first. Postmus testified that in the latter half of 2006, Erwin, working on behalf of Burum, had threatened to expose his homosexuality and Paul Biane’s financial difficulties to get them to support the settlement. Postmus said he considered the $102 million paid out to the Colonies Partners to be “ridiculously more” than the development company was due as a consequence of the litigation, but that the threats and promises of reward and the desire to put the whole thing behind him pushed him into the settlement.
After the settlement was effectuated, Postmus testified, the Colonies Partners came through with two separate $50,000 donations to two political action committees he had control over, the Inland Empire PAC and Conservatives for a Republican Majority PAC.
While Postmus’s testimony under direct examination seemed to establish the essentials of the prosecution’s case, at least with regard to Burum and Erwin, under cross examination he went sideways. Burum’s attorney Jennifer Keller blunted the damage Postmus had done to her client by establishing that a decade of increasingly heavy methamphetamine use had left Postmus’s memory spotty and rendered him into a highly suggestible state in which he was prone to accept the representations of those he was engaged with at any given time, such that he would in large measure provide a version of events that adhered as much to the promptings of his questioner as the actual circumstance and activity he was being called upon to recollect. And Keller cast further aspersions about Postmus’s believability when she questioned him about the plea arrangement he had with prosecutors by which he stood to have many of the felonies recorded against him reduced to misdemeanors and obtain lenient sentencing, which by that point had been deferred six years, through his cooperation.
Immediately upon the conclusion of Postmus’s testimony, the prosecution put Aleman on the witness stand, effectively using him during direct examination to fill in the gaps and reinforce the damning aspects of the drug-addled Postmus’s accounts of how he had been extorted and manipulated by Burum and Erwin into participating with Biane and Kirk in an effort to make a $102 million gift of public funds to the Colonies Partners in the guise of a lawsuit settlement. Aleman in this way succeeded in advancing the prosecution’s narrative, but was then subjected to a withering and merciless shellacking by the defendants’ legal teams on cross examination. In their full court press to demonize and discredit him, the defense attorneys dwelled at length with regard to Aleman’s own legal travails, which included convictions for perjury, falsification of evidence and destruction of county property. Aleman’s credibility sustained blow upon blow, as virtually every aspect of his recollections were assailed, and documentation in the form of receipts and contemporaneous accounts, phone records and text messages were marshaled by the defense attorneys to suggest that Aleman could not have been in attendance at several events and meetings nor could he have participated in discussions or conversations as he claimed.
The foundation for the case against Kirk was presented early in the trial, at which point Supervising Deputy California Attorney General Melissa Mandel had inflicted damage on Kirk by a skilled presentation of documentation relating to the creation of the political action committee that Kirk had formed, the Alliance for Ethical Government, which was the recipient of one of the four $100,000 donations made to the political figures connected to the $102 million lawsuit settlement. In January and February 2017, Mandel obtained testimony from Anthony Riley, who had set up the Alliance for Ethical Government with Kirk, along with the testimony of Riley’s mother, Kathleen Rough, and an 80-year-old woman, Kitty Stennett. Riley had filed papers with the state naming himself, Kirk, Stennett and Rough as the Alliance For Ethical Government’s board members. Rough testified that she did not learn that she was the political action committee’s chairwoman until she was brought before the grand jury and informed of such. Rough testified that she had never attended a board meeting with the other members of the board. Stennett said she was entirely unaware that she was a board member, not having learned so until she was brought before the grand jury. Riley testified that while he knew one of the alliance’s officers, one time-Chino Hills Mayor and later Assemblyman and later-still San Bernardino County Supervisor Curt Hagman, he did not know who the other officers of the committee – Andre Kuhr, Jeff Sorenson, Tim Neel and Charlie Dane – were. “I don’t recall those individuals,” Riley testified. “Actually, I don’t know who they are.” Mandel demonstrated that two $10,000 “consulting” payments were made to Kirk from the Alliance For Ethical Government, which was Kirk’s own political action committee, and that one of those payments had been authorized by Riley signing his mother’s signature on the disbursement authorization. Riley acknowledged having used “poor judgment” in that incident. Mandel also confronted Riley with what appeared to be his forgeries of Stennett’s signature on several political action committee documents.
Much later in the trial, on June 27, 2017, the prosecution provided for the jury what was intended as the strongest and most comprehensive of the evidence against Kirk, coming just one day before the prosecution rested its case against him, Biane and Burum. That evidence consisted of a recording made on April 21, 2009 capturing Kirk’s questioning by two district attorney’s office investigators, Hollis “Bud” Randles and Maury Weiss. What started as a seemingly friendly informational exchange Kirk had initially agreed to engage in as a professional courtesy with what were what he considered at that point to be other governmental officials in relatively short order turned into an aggressive interrogation. The recording itself is not a smoking gun but rather an encapsulation of both the theory of Kirk’s guilt, propounded by the investigators in their questions, and admissions and concessions from Kirk which, while certainly problematic, were less than fully implicative. With regard to two matters, the frequency of his communications with Burum during the crucial period leading up to the settlement and the impetus for the creation as well as the actual formation and constitution of the political action committee, Kirk can be heard dissembling and prevaricating. At another juncture he appeared to be repeating to investigators the less-than-accurate talking points relating to the lawsuit prepared by the Colonies Partners’ publicist Patrick O’Reilly when he told the investigators that the county had consistently lost during all phases of the litigation against the Colonies Partners and that the county did not have strong legal representation. Kirk was also at a total loss to explain why it was that the Colonies Partners chose to confer on his political action committee a $100,000 donation. In most other respects, Kirk was offering what appear to be genuinely candid responses as he earnestly sought to cooperate with the investigators, who were from the outset gunning to inveigle him into answers that they could contradict with evidence they possessed or maneuver him into making statements that would both implicate himself and give the investigators and prosecutors leverage by which they might corral him into serving as an informant for them in gathering information from others.
During the interrogation, Randles asked Kirk about the Alliance For Ethical Government.
“Do you have a political action committee or you had a political action committee, Alliance for Ethical Government? Who was the initial contributor to that PAC [political action committee]?” Randles asked.
“Colonies,” Kirk responded.
“How much did they contribute?” Randles asked.
“I believe it was $100,000,” said Kirk.
“And what was the purpose of that large contribution from Colonies Partners?” asked Randles.
“I don’t know,” Kirk said. “This is what I’ll say about the political action committee. It was formed. I was brought on, asked to do some consulting work. It’s one of the things that…”
“Who formed it?” Randles interrupted Kirk.
“A group of concerned citizens,” said Kirk.
“Were you one that…” Randles began, but was interrupted by Kirk.
“I helped to form it,” Kirk said.
Randles asked Kirk, “Why this large $100,000 contribution from Colonies Partners to this PAC, the initial contributor? What was the purpose of that?”
“I don’t know what the purpose of that is,” Kirk said. “I don’t know why they gave that significant of an amount of money.”
“They were the first contributor?” Randles asked.
“We were in the process of setting it up,” Kirk explained. “They found out about it.”
“How did they find out about it?” Randles asked.
“I don’t remember how they found out about it,” Kirk said.
“So it was not set, it was not fully set up when they came to you and said they wanted to give a donation to it?” Randles asked.
“Correct,” said Kirk.
The investigators pressed Kirk with regard to the reason for the formation of the Alliance For Ethical Government political action committee, and Kirk’s assertion it was formed by a group of concerned citizens.
“You said there was a group of concerned citizens that were involved in this,” Randles said.
“Correct,” said Kirk.
“Who were the other citizens?” Randles asked.
“I’ve said this to the media that asked the same question: ‘I don’t feel comfortable saying who those individuals are…’” Kirk said. Kirk remained tight-lipped, for a time, about who the political action committee’s board members and officers were, even as Randles and Weiss were persistent with regard to that question.
“So was there anybody on this group of concerned citizens that went to these board meetings that isn’t on this paperwork I have?” Weiss asked at one point.
“Yes,” said Kirk.
“Who?” asked Weiss.
“Again, I don’t feel like it’s my place to answer that question at this time,” said Kirk.
Later, however, as Weiss and Randles become more assertive, Kirk relented. “I’ll share with you the committee members that I know. Anthony [Riley] obviously was a committee member. A woman by the name of Kitty Stennett was a committee member. And another woman by the name of Kathy Rough was another committee member. I know those three. I don’t know if there were more than that.”
“Did you have a vote?” Weiss asked.
“No,” said Kirk.
As the exchange with Randles and Weiss continued, it began to dawn on Kirk that he was the focus of the investigation.
“I may be a little confused,” Kirk said. “Have I done something wrong, in terms of that or…” Kirk said.
At that point Randles hinted that the investigators were focusing on the Alliance For Ethical Government as a means through which bribes had been conveyed and that Kirk’s deep involvement in the political action committee and the way in which the action being taken by it was being hidden behind Stennett, Rough and others was suspicious.
“We’re looking for something here,” said Randles. “We ask you who these group of concerned citizens were that were involved with it that would have some control over this PAC other than you. I’ve been through this file. I’ve done spreadsheets on it. I’ve been through every swinging piece of paper in here a couple of times and I’ll be real honest with you: I’ve seen nothing in here except your name as far as directing money.”
A bit further into the interrogation, Randles intensified the inquiry.
“You know your PAC wasn’t the only PAC that got one hundred thousand bucks,” said Randles. “You know that?”
“Of course, I know,” said Kirk. “I’ve read the newspaper and that’s one of those things where…”
“You knew about it before that,” Randles said, interrupting him and with a twinge of malice in his voice.
“I did?” said Kirk. “I didn’t know about it at the time. At the time I was myopic. I was focused on, ‘Am I going to run for supervisor? Am I not going to run for supervisor?’ If I knew then that all these PACS were getting money…
Randles again cut his answer off, asking, “You know who these PACS are controlled by, right?”
“I know some of them,” said Kirk. “I don’t know all of them.”
“Well, we can educate you, then,” said Randles. “You know one was controlled by Bill Postmus?”
“I did not know that,” said Kirk. I knew…”
“You didn’t know that?” Randles intoned, incredulously.
“I knew that there was one that was Jim Erwin’s and there was one that was Matt Brown’s,” Kirk said.
“Yeah,” said Randles. “Bill Postmus, Jim Erwin, Matt Brown, who was Paul Biane’s chief of staff and yourself, who was Gary Ovitt’s chief of staff. Who voted to approve and settle the Colonies lawsuit in favor of Colonies for $102 million?”
“I understand it doesn’t look good,” Kirk said. I understand that.”
“And that you just got $100,000 in your PAC,” said Randles.
“I did,” Kirk conceded, “but I can tell you that was… It was never… I’ve never had a conversation with Jeff [Burum] that talked about policy decisions and campaign contributions. There was never a quid pro quo. There was never an ask on anything.”
At the close of the prosecution’s case, senior district attorney investigator Sean Fares testified about research he had conducted on the phone contacts among the defendants. According to Fares, Burum’s cell phone records between September 1, 2005 through January 15, 2009 show he made 202 calls to Kirk. Burum and Kirk also had considerable contact in the four months prior to the settlement vote on November 28, 2006. In July 2006, Burum’s communication with Erwin, Postmus and Biane practically ceased. That month he had no phone contact with any of the three, though the frequency of his calls to them intensified thereafter. According to phone records Fares referenced, Burum from August 20 to August 31, 2006 made or received seven phone calls to or from Kirk. In the month of September 2006, Burum had five phone contacts with Kirk.
From November 1 until November 27, 2006, the day before the settlement was ratified, Burum made eight phone calls to Kirk. Between November 28, 2006, when the settlement was passed, and November 30, 2006, Burum had eight further phone contacts with Kirk.
As was the case with the evidence/testimony offered against Burum and Erwin by Postmus and Aleman, the sometimes seemingly strong evidence against Kirk was undercut and compromised by specific issues, not the least of which was the way in which Randles and Weiss had used Kirk’s cooperative attitude to ambush him with an increasingly aggressive interrogation. Additionally, a central tenet of the prosecution’s case against Kirk was that he had played a key role in influencing Ovitt to support the $102 million settlement. At trial, Ovitt testified that he had independently arrived at the conclusion to support the settlement.
When the presentation of evidence and the testimony of the prosecution’s 39 witnesses ended on June 29, 2017 and the subsequent closing arguments by both the prosecution and the defense was concluded, the juries were faced with considering a case that had been substantially whittled down from the indictment, with 12 of the original 29 counts intact and the original 40 charges against all of the defendants reduced to 16. The charges considered by the jury included Count 9, violating Government Code Section 9054, the improper influencing of a public official; and Count 10, violating Government Code Section 1090, engaging in a conflict of interest, against Kirk; Count 2, violating Penal Code Section 165, receiving and/or agreeing to receive a bribe to influence a vote; Count 6, violating Penal Code Section 86, receiving and/or agreeing to receive or soliciting a bribe to influence a vote; and Count 10, violating Government Codes 1090, engaging in a conflict of interest, against Biane; Count 4, violating Penal Code 165, aiding and abetting Bill Postmus in receiving or agreeing to receive a bribe to influence a vote; Count 5, violating Penal Code 165, aiding and abetting Paul Biane in receiving or agreeing to receive a bribe to influence a vote; Count 7, violating Penal Code Section 86, aiding or abetting Bill Postmus in receiving or agreeing to receive or in soliciting a bribe to influence a vote; Count 8, violating Penal Code Section 86, aiding or abetting Paul Biane in receiving or agreeing to receive or in soliciting a bribe to influence a vote; Count 14, violating Revenue & Tax Code 19706, failing to file a tax return; and two counts of perjury relating to failing to properly fill out or make proper disclosure of gifts and/or income on the California Form 700 economic interest documents he was required to file as a public official, against Erwin; and Count 4, violating Penal Code 165, aiding and abetting Bill Postmus in receiving or agreeing to receive a bribe to influence a vote; Count 5, violating Penal Code 165, aiding and abetting Paul Biane in receiving or agreeing to receive a bribe to influence a vote; Count 7, violating Penal Code Section 86, aiding or abetting Bill Postmus in receiving or agreeing to receive or in soliciting a bribe to influence a vote; and Count 8, violating Penal Code Section 86, aiding or abetting Paul Biane in receiving or agreeing to receive or in soliciting a bribe to influence a vote, against Burum.
The jury considering the case against Kirk, Biane and Burum spent less than two half days considering the evidence before returning with not guilty verdicts against all three defendants on all charges at the end of August. The jury hearing the case against Erwin remained in deliberations for more than a week before returning to the courtroom to report that it was hopelessly deadlocked with regard to all of the charges against Erwin. In September, on a motion by the prosecution, which consisted of a team led by Supervising Deputy California Attorney General Melissa Mandel and Supervising Deputy District Attorney Lewis Cope, all charges were dropped against Erwin.
On November 1, 2017 Erwin lodged a $25 million claim citing malicious prosecution and fabrication of evidence against San Bernardino County and the State of California, along with a host of those involved in his prosecution, including Mandel, Cope, California Governor and former California Attorney General Edmund G. Brown Jr., U.S. Senator and former California Attorney General Kamala D. Harris and San Bernardino County District Attorney Michael Ramos.
In November 2017, Burum lodged a $45.2 million claim against the county.
In December 2017, the Colonies Partners, citing an indemnification clause in the 2006 $102 million settlement, filed a $45 million claim against San Bernardino County for not covering Burum’s costs in defending himself against the criminal prosecution.
Also in December, maintaining he is owed $35 million for lost past, current and future wages as well as real and punitive damages for harm to his reputation, Kirk filed a claim against the county over his prosecution.
On February 23, Biane filed a $10 million claim against the county.
In March, the Colonies Partners development consortium filed a civil rights lawsuit in Riverside Federal Court against San Bernardino County District Attorney Ramos and former state attorneys general Brown and Harris, other members of the prosecution team and witnesses involved in last year’s failed political corruption prosecution, seeking $80 million in damages.
In April Burum augmented Colonies Partners’ $80 million federal suit filed the month before with a federal suit of his own in which he sued San Bernardino County, District Attorney Ramos and former state attorneys general Harris and Brown, prosecutors Cope and Mandel, former Assistant District Attorney Jim Hackleman, district attorney’s office investigators Robert Schreiber and Hollis Randles, and County Supervisor Josie Gonzales for $50 million, alleging malicious prosecution.
In June Erwin filed a $25 million federal lawsuit against prosecutors and the county, alleging an “illegal campaign of retaliation, intimidation, and harassment.”
In his suit, filed Monday on his behalf by Huntington Beach-based attorney Peter Scalisi, Kirk named the County of San Bernardino, Ramos, Mandel, Cope, Randles, former District Attorney’s Office Investigator Robert Schreiber, Adam Aleman, Supervisor Josie Gonzales, Governor and Former Attorney General Brown, and Former Supervising Deputy California Attorney General Gary Schons as defendants. Scalisi was Kirk’s defense attorney during the criminal trial in which he was acquitted.
The lawsuit notes that while Kirk was employed as Ovitt’s chief of staff, “Mr. Jeffrey S. Burum and [the] Colonies Partners sued the county for the right to receive just compensation for the uncompensated “taking” of 72 acres of land by defendant county and the San Bernardino County Flood Control District for a regional flood control facility. Mr. Burum and [the] Colonies [Partners] exercised their First Amendment free speech rights to petition the government and advocate for the settlement of the lawsuit. Mr. Kirk, and Mr. Ovitt, were of the lawful opinion that the county should settle the lawsuit and Mr. Kirk and Mr. Ovitt reasonably believed that the county was exposed to an extraordinary financial liability if the county did not reach a settlement of the lawsuit. As a result of the constitutionally protected efforts of Mr. Burum and [the] Colonies [Partners], a settlement of the lawsuit in the amount of $102-million dollars was reached in November of 2006. Following the settlement, [the] Colonies [Partners] continued to exercise it’s free speech rights, again under the leadership and guidance of Mr. Burum, by making political contributions to general purpose political action committees affiliated with pro-development politicians, including members of the San Bernardino County Board of Supervisors and others who had supported the settlement. The goal of these political action committee contributions was to support pro-development politicians and candidates for political office who root out the intransigent and corrupt elements of the county that had plagued the Colonies [Partners] civil litigation. One of the political contributions made by [the] Colonies [Partners] was to the Alliance For Ethical Government. The Alliance For Ethical Government was a lawful political action committee. The contribution was made in the month of May of 2007, approximately 7 months after the settlement had been reached in the [the] Colonies [Partners] lawsuit. Mr. Kirk was the founder and the executive director of the Alliance For Ethical Government and the political action committee was formed to pursue ethical government in the county and to make lawful political contributions to candidates who would serve the citizens in an ethical and honorable manner. The Alliance For Ethical Government filed all of the legal and appropriate disclosure documents with the Secretary of State for the State of California. As a result of the settlement in the Colonies lawsuit, and as a result of the lawful contribution to the Alliance For Ethical Government, the defendants began a retaliatory campaign developed and manifested in several ways. One such way was an unfounded criminal investigation of Mr. Kirk, Mr. Burum, Mr. Paul Biane, and Mr. James Erwin, and [the] Colonies [Partners]. This retaliatory and unfounded criminal investigation ultimately resulted in felony charges being brought against Mr. Kirk in the case of People of the State of California v. Paul Biane, et. al., case number: FSB-1102102.”
The lawsuit notes that Kirk had moved from the post of Ovitt’s chief of staff to that of director of government relations in the county executive office in 2010, prior to the indictment.
“Mr. Kirk was placed on administrative leave without pay as a result of the filing of the charges against him, and as a result of his arrest on the charges,” the lawsuit states. “Mr. Kirk was not allowed to work in his office in the county and he was not allowed to communicate with his staff and he was not allowed to pursue employment outside of the county. As a result of these retaliatory actions against Mr. Kirk, he was forced to resign his position with the county. Mr. Kirk was put through 6 years of criminal litigation, and a 10-month jury trial in the San Bernardino County Courthouse. Based upon the testimony and the exhibits and the evidence that the prosecution produced at the criminal trial of Mr. Kirk, it was readily apparent that the prosecution of Mr. Kirk was malicious and retaliatory and without any justification.”
That the defense called no witnesses and the jury hearing the case against Kirk, Biane and Burum quickly returned verdicts of not guilty stands, according to the suit, as a “thorough repudiation of the prosecution’s case, and the lengths to which the prosecutors, investigators, and certain county-affiliated witnesses and other witnesses went to manufacture a case against Mr. Kirk,” which “is evidence of the retaliatory and unjustified motives that drove the criminal investigation and the criminal prosecution from the beginning. Simply put, there was never any evidence of criminal conduct involving the contribution to the Alliance For Ethical Government. Mr. Kirk was maliciously and unfairly investigated, charged, and prosecuted on the charges in a criminal court for exercising his constitutional rights to engage in lawful political speech.”
Mark Gutglueck

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