Sentinel 06-21-19

By Mark Gutglueck
This week prosecutors told the jury that found Charles Merritt guilty of the 2010 murders of the McStay family that they should not shrink from recommending that he be executed, while Merritt’s lawyers reiterated their belief in his innocence and asked the jury to make an unemotional review of the evidence they say brought the panel to an erroneous verdict.
In the week following the jury returning first degree murder verdicts against Merritt augmented by a special circumstances finding that he had engaged in multiple homicides, which opens the way under California law for the convicted to be subjected to the death penalty, the proceedings more fully moved into the penalty phase. Last week, the mother and brother of Joseph McStay – Susan Blake and Michael McStay – testified as victim impact witnesses as part of the prosecution’s effort to convince the jury to recommend that Merritt be put to death by legal injection.
Merritt, 62, was convicted June 10 of first-degree murder in the deaths of his former business associate Joseph McStay, his wife, Summer,  and their two children, Gianni, 4, and Joseph Jr., 3. After a five-month presentation of evidence by both the prosecution and the defense, jurors found unanimously that Merritt had murdered his business associate, Joseph McStay, as a consequence of a set of circumstances and a series of events that prosecutors alleged came to a critical head in on February 4, 2010 and involved Merritt’s embezzlement from McStay’s company, Earth Inspired Products. Earth Inspired Products sold and delivered high end water features – water fountains and artificial waterfalls – customers ordered from Joseph McStay and which Merritt constructed. It was the prosecution’s theory that Joseph McStay discovered those thefts, which entailed Merritt writing fraudulent checks against the Earth Inspired Products bank account, and when McStay threatened to report the thefts to law enforcement authorities Merritt reacted by killing McStay and his family in an effort to prevent himself from being subjected to prosecution and a lengthy prison sentence.
This week, two members of Summer McStay’s family, her sister Tracey Russell and her brother Kenneth Aranda, testified remotely by electronic means – the first from Greece and the second from Hawaii – offering their victim impact statements.
After those statements were concluded, Supervising Deputy District Attorney Britt Imes, the lead prosecutor on the case, offered the first installment of the prosecution’s final appeal to the jury.
“When a family of four disappears off the face of the earth, when a family of four is murdered, it tears a hole in the fabric of society,” Imes said. “It tears a hole that must be mended, so that the families and society can move forward, knowing that there was some resolution to why they were brutally murdered.   In the State of California, that’s the one opportunity we put forth to jurors, to make that decision.” While acknowledging it was a “daunting decision” Imes said it was “rightfully put to members of society to rectify that torn fabric of society.”
Imes said, “Your job in returning a judgment of death, each of you individually… must decide that, determining whether or not the aggravating circumstances outweigh the mitigating circumstances in such a substantial manner to make death the appropriate verdict.”
Imes conceded  “Now that you’ve heard the entire guilt phase and now that you’ve heard the entire penalty phase evidence, there are several of those factors from that entire record you heard no evidence of. You heard no evidence of violent criminal activity, prior felony convictions, any type of extreme mental or emotional disturbance, or that the victim participated in a homicidal act or that there was some moral justification or that the defendant acted under some extreme duress or substantial domination of another,  or his capacity was impaired due to mental disease or intoxication or he was an accomplice with a minor level of participation. Really, the evidence leaves you to weigh three factors: the circumstances of the offense, the defendant’s age and what’s called factor K, any other factor, any other piece of evidence, any other feeling or emotion that you believe could mitigate the defendant’s culpability in this case and mitigate his punishment.”
Imes said, “When we talk about age, that can be either a mitigating or an aggravating factor. If someone is so youthful and impetuous and impulsive, that can mitigate their culpability, and mitigate the severity of punishment a jury decides to give them. On the other hand, if the person is of an older age, of a decent intelligence, and has a way in the world, a knowledge in the world, that can be aggravating. What you say and what you weigh from that fact is that they knew better, that they knew the consequences of their actions, they knew the impact that their actions would have on society. In this case, you have a 52-year-old defendant as of February 2010 when all of the events in this case happened. Think of what an average person of 52 years has. Use your common sense. They know right from wrong. They’ve probably been raised right from childhood to know right from wrong. Common sense would tell you that. Over 52 years a person should learn what society expects, what society deems right and what society deems wrong. At some point, we should expect as a society, that a person of 52 years can conform their behavior to those rules, to those expectations. In this case, ladies and gentlemen, the defendant’s age is an aggravating factor. This is a person who was a businessman who interacted with other people, who had a relationship with Joseph [McStay] in a business sense and a personal sense. He had children. That is a person, one with their common sense would operate in a society knowing right from wrong, knowing the impact their actions would have on others.”
Imes said Merritt had the means, motive and opportunity to commit the crimes. He said Merritt had a familiarity with the victims, their home and their animals. He said that signs that there was no forced entry at the McStay home “pointed to someone [who] came in that house willingly, knowingly, acceptingly, someone they had a business and friendship relationship with for a number of years.”
Of Summer McStay, Imes said it was “clear and abundant that she was not only the protective mother of this family but she clearly did not like the defendant and clearly could have been a motivating factor to sideline him from the relationship with Joe. That familiarity with the home, the victims and animals gave the defendant an insight into carrying out his crimes that is more personal. This isn’t a stranger who kicked in a door. This is someone who walked in. That is a circumstance that makes this crime even more  horrific.”
Merritt, Imes said, “had time to accomplish it [the murders] and he was familiar with areas such as where the bodies were buried.  His financial relationship with Joseph in October 2009 drastically changed. His percentage, his payout dropped drastically. He did not want to be sidelined.”
Imes asserted that a part of Merritt’s motive was that “others were being looked at to replace him to do the jobs that maybe he thought he was the only one who could do them. How offended would you be as a person being replaced?  How would it be showing up at your office and all of a sudden there’s a new nameplate at your desk? That type of personal hurt and that personal motivation that drives a person ultimately to kill is an aggravating factor that may not be coming in a random door kick robbery murder by a stranger. He can keep the business and he can keep that gravy train from derailing and not be reported for theft and forgery.”
Imes said the murder of Joseph evolved out of “the ultimate of business disputes that ends in the most horrific way.” Imes asked if the killing of Summer McStay sprung from “a hatred for a strong-willed, outspoken woman who is even willing to criticize how he eats pizza at the table? Is it that strong-willed woman who is protective of her kids? Interfering with his business relationship with his gravy train? That becomes a very personal motive.”
With respect to the killings of Gianni McStay and Joseph McStay, Jr., Imes said, “What possible motive can a human being have to murder a 4-year-old and a 3-year-old? Are they the only people left in that house after killing Joseph and Summer that can identify him? Or is it cold, callous collateral damage? That’s simplistic to look at. If it is cold, callous collateral damage, then it’s evil. What line must be crossed, ladies and gentlemen, to take the life of a defenseless 4-year-old, and a defenseless 3-year-old? What line in our society and in our laws and our human interactions with each other to take their lives? Their is no motive that can be ascribed to the killer of a four-year-old and a three-year-old that passes muster.”
The murders and their brutality were elements controlled by Merritt, Imes asserted. Similarly, Imes said, Merritt orchestrated a set of events and its aftermath in a way that he believed would avoid the detection of his crimes and would insulate him from accountability.
“The circumstances this case sits in were determined by the defendant,” Imes said. “The fact that the remains sat in a grave three years nine months seven days undisturbed except for animal activity and weather created a lack of forensic evidence. The fact that they went unreported, unnoticed as missing for eight nine, ten days leaves us with little forensic evidence in the home. You saw that. That leaves a lot of unanswered questions.”
Despite crucial information about exactly what happened being missing or nonexistent, Imes asserted that an aggravating factor in the murders that could be recognized is Merritt’s “personal involvement, up close and personal with” the victims during murderous acts the case entailed.
Imes contrasted Joseph McStay, whom he idealized as a “giving and compassionate” person with Merritt, who met that compassion with brutality, Imes said. Merritt’s was, Imes said, “a familiar face that was let in that door on the night of February 4, since it wasn’t kicked in and no windows were broken, that turns into a monster of destruction.”
Merritt’s monstrosity, Imes said, consisted of his being “a person that you have a business relationship and friendship with driven… out of greed and selfishness to confront him [McStay] in such a violent manner, face to face… beyond what was really necessary. What exactly happened in the house that night no one can tell you, neither us nor the defense, no[t] law enforcement, not even a psychic. Brutal violence on a four-year-old really needs no more discussion.” Imes said the killing of Joseph McStay, Jr. was an up-close, personal brutal assault on a three-year-old who just wanted to dig up dinosaurs.”
Imes said Merritt deserves to be killed.
“Those circumstances, ladies and gentlemen, warrant a finding of death,” Imes said. That fabric of society must be mended when these four are taken from the face of the earth. None of anything that can be said about the defendant, his business practices or what you can glean from the evidence that is in the record lessens the gravity of this offense. The circumstances of taking and brutally murdering a three-year-old and a four-year-old alone are so egregious that there’s little on this earth that could minimize that gravity. You could simply show mercy. And they [the defense team] may ask you for that. ‘Show mercy.’ What Mercy was shown to Gianni? What mercy was shown to Joseph, Jr., let alone Summer and Joseph? To receive mercy, you should give mercy. The actions of the defendant for the crimes of which he has been convicted deserve no mercy.”
Any appeals the defense makes with regard to lingering doubt, Imes said, “is to call into question those resolutions you came to. Your convictions were appropriate. [Defense] Counsel is going to ask you to doubt that judgment, doubt your wisdom, doubt your common sense when you convicted the defendant of murder. There was no doubt. You made the right decision to convict because you believe it was proved beyond a reasonable doubt.”
Whatever doubt could be said to have existed in the case was attenuated, Imes said, by the consideration that Merritt “was in control of any evidence that was left behind after their murders,” and it was he “who hid those bodies in a remote location where they sat undetected for three years nine months seven days” so that he “covered his tracks, his greed and his violent reaction.”
Imes asked the jury to “return collectively the appropriate judgment of death.” He said the jury needed to set aside whatever compassion it might feel for Merritt’s family, make a comparison of the aggravating and mitigating circumstances the case presents and see that “the aggravating [element] is so substantial that it leaves you really only one just choice alone. The circumstances of the case, the brutality of the crime, the motive for the crime and all of the totality of that evidence that you saw justifies only one verdict, and that is death. The death penalty is an appropriate sentence, punishment for this defendant. The gravity of the offense so substantially outweighs any possible mitigation, any possible mercy you could show, that the only true and just outcome is death.”
Supervising Deputy District Attorney Sean Daugherty acknowledged that the decision the jury was being called upon to make with regard to Merritt’s appropriate penalty was a “solemn” one.  The concept of accountability, he said, required that such a decision be made unflinchingly.
“The decision you make in this phase centers around accountability,” Daugherty said. “Accountability gives meaning to life. When a crime is so terrible it tears at the fabric of society, when it’s so enormous, it’s so brutal, when it’s so horrible and it’s so senseless, the only right decision is to remove the person who made that tear from society. Make no mistake about it. I’m asking you to do that in this case without hesitation. This is that kind of case. The death penalty is meaningless if it’s not imposed in this case.”
Of the jury’s verdict and the defense’s appeal to the concept of lingering doubt, Daugherty said. “”They [the defense team] are saying you got it wrong. Each of you know beyond a reasonable doubt that’s the murderer,” Daugherty said, pointing to Merritt.  “You all agreed ten days ago or a little more, he did it. The decision now is what’s appropriate, what’s appropriate punishment. Make no mistake about it. You’re not in this position because of bad prosecutors. You’re not in this position because of bad police. You’re not in this position because of the DA’s ego or the police’s ego or pride or anything else. You are here because he murdered four people. You’re here because of his actions, because of his greed, because of his choices. To suggest otherwise, to suggest you are here because of our ego or our pride is irresponsible. It’s not true, and you know it.  We’re here because of him,” Daugherty said, indicating Merritt. “You’re here because of him.”
Daugherty said that though the crime occurred more than nine years ago, “impacts are still felt today. The family members are still feeling the effects.”
Utilizing the courtroom’s overhead visual monitors to play homemade videos the McStay family had made which featured the playful banter of the family, Daugherty dramatically shut off the video. “Those voices will never be heard again because he murdered them,” Daugherty said.
Daugherty warned the jury that the defense team would “pretend to make up lingering doubt” concerning Merritt’s guilt. “Those voices were silenced at the hands of Charles Merritt,” he said.
“To not give a death verdict is an injustice in this case,” Daugherty insisted. “The death penalty is meaningless if it is not given in light of these factors in aggravation. A verdict of death brings meaning and dignity to those lives and the lives that are still affected by this.”
The penalty phase of a capital case provides both sides, the prosecution and defense, the opportunity to offer testimony and evidence for the jury’s consideration. In the case of the prosecution, that testimony generally consists of victim impact statements, offered by the family or friends of those killed. The defense is entitled to put on character witnesses for the convicted defendant in an effort to instill with the jurors an understanding that the individual they have convicted has redeeming qualities that weigh against him being condemned to execution by the state.
Merritt’s defense team, consisting of James McGee, Rajan Maline and Jacob Guerard, elected to forgo the opportunity to both cross examine the prosecution’s victim impact witnesses and offer character witnesses and mitigation evidence on Merritt’s behalf. Instead, the defense sought to use the opportunity to have the jury revisit the evidence presented to them during the trial that convinced them of Merritt’s guilt, in essence reframing the defense case made during the guilt phase of the trial, and appeal to any “lingering doubt” the jurors might yet have. By this strategy, the defense team hopes to convince at least one of the jurors that the application of the death penalty against Merritt might not be morally justifiable. As in the guilt phase, where a unanimous verdict of guilt was needed to convict the defendant, in the penalty phase the jury must unanimously recommend putting Merritt to death for that punishment to be meted out to him.
“I’m not going to pretend we are not disappointed in the verdict,” Maline told the jury on Thursday. “We are. To say we are just disappointed would be an understatement. Having said that, we accept it. We have to. That’s our system. Contrary to what you heard yesterday, we respect your work, because we know how long its been, what you’ve had to go through. We disagree [with your verdict]. Because we disagree, there is this concept called ‘lingering doubt.’ Lingering doubt isn’t there to just say, ‘You got it wrong’ or ‘You are mistaken.’  Lingering doubt is a concept that is used because of the nature of trials and the nature of deliberations.”
Calling deliberations a “collaborative effort,” Maline told the jury, “Whenever there’s a collaborative effort, some people may be more assertive and some people may not be. Some people may have a personality that says, ‘I am afraid to speak out’ or ‘I may not be as smart as them’ or ‘They sure as heck know what they are talking about. I don’t want to say anything.’ So, sometimes people in a collaborative effort remain quiet, but they also have their own individual opinion. Lingering doubt allows those folks to be heard in their own way. Lingering doubt is an individual decision. When you go back there [into the deliberation room] now, it’s different. It’s not a collaborative effort. You don’t have to ask people what the evidence was. It’s a vote. You don’t have to tell anybody. Nobody has to know, and you can express your opinion that way.”
Maline then moved into his assault upon the validity of the prosecution’s case.
“From the very beginning, this case screamed ‘Doubt,’” Maline said. “[The] San Diego [County Sheriff’s Department] was involved three years and there was no progress. [The] San Bernardino [County Sheriff’s Department] was involved for almost a year. Nobody had answers to the fundamental questions in this case.”
As early as during jury selection, Maline said, “My biggest fear in this case was the human emotion part of it, that when you have a family that is killed in the brutal way that his family was killed, it’s going to be very difficult to set that aside and say ‘This family doesn’t deserve some type of closure, some type of justice.’ That pull on everybody to somehow make it right for them finally after so long, we knew that was going to be strong. Of course you have the presumption of innocence and all of that, but we’re human beings, too. So, my biggest fear was, ‘Gosh, can they forget that?Can they forget their human nature to bring closure to this family?’  Lingering doubt gives you the ability to make a decision without consultation from fellow jurors. It allows you to make a decision to respect the sanctity of life, because this decision is not based on revenge. I heard what counsel [the prosecution] had to say yesterday and their anger is justified. Their anger about this family is justified. But that’s not the law. The law isn’t revenge. The mitigating factor I’m talking to you about today is lingering doubt. Doubt is unanswered questions. That’s what it is. When you don’t know the answer to a question, you have to have doubt. This case is filled with unanswered questions, the same unanswered questions that existed when this family disappeared in February of 2010. And I would submit to you, ladies and gentlemen, we’re no closer today to finding out what happened in February of 2010.  Where did this crime happen? When did it happen? And how did it happen? Who was in the house at 8:05 pm [February 4, 2010] making checks, not checks, but a check alignment page, between 7:55 and 8:05 pm on February 4th [2010]? Who made a call from Joseph’s telephone at 8:28 pm from Fallbrook?  Who drove the car to San Ysidro, the Trooper? And who do these three allele lists [DNA readings] belong to? Who are they? There’s certainly enough characteristics there for a human being.”
Maline’s reference was to trace amounts of DNA that were found on a cord that was used to bind Joseph McStay and which was yet wrapped around his carcass in the grave in which he was buried, as well as trace DNA on one of the cups of Summer McStay’s bra found at the gravesite. A scientific analysis sourced that DNA to three different yet-unidentified males, none of whom matched Charles Merritt, Joseph McStay, Gianni McStay or Joseph McStay, Jr.  Maline suggested that the prosecution was based on an incomplete investigation and analysis, which was demonstrated by the refusal of the sheriff’s department and the prosecution to run the DNA results taken from the material gathered from the cord and the bra through a data base of DNA profiles of those convicted of felonies and other known criminals throughout the United States that is kept by the FBI.
“That white cord bound Joseph,” Maline said. “If those allele [DNA component] lists are just nothing, then why not just run them? Why not just run them and see what it is? This is touch DNA on the white cord that bound Joseph. Why would someone’s DNA be on that? Wouldn’t that person having something to explain?”
Maline continued cataloging the unanswered questions in the case.
“Who was in the house [the McStay residence] on February 8th [2010] between 2 and 4 am?” he asked. “These are all unanswered questions. The why, the when and the how. That’s the meat and potatoes of any crime. So in this case, the where. We thought the theory from the very beginning for the last four years was they were killed in the house. That’s what we prepared our defense on and that’s what the investigators said. They [the prosecution] went back and forth. They teased you with it happened on the fourth [February 4, 2010] with statements such as ‘Mr. Merritt went off the grid, giving him enough time to clean up the crime scene.’ They’re referring to the house. Fresh paint in the house, teasing you again that this crime happened in the house, but no evidence of it. Where did this happen,  in the house or somewhere else? Were they abducted? Were they abducted on the 4th or were they abducted on the 5th, in the early morning hours when there was breakfast food out?  All of these unanswered questions change the time line.”
Maline said, “[San Diego County Sheriff’s Department Homicide Detective Troy] Dugal back in San Diego in 2010 indicated there was no evidence – he said it on the stand – no evidence that a crime had been committed in that house – a crime, not just a murder but a crime, abduction, anything.”
Detective DuGal’s extensive search on February 19, 2010, pursuant to a warrant he obtained and using cadaver dogs turned up no evidence of a crime at the house, Maline said,
Maline pointed out that there was confusion and disagreement among law enforcement personnel with what had been touted by the prosecution as a major piece of evidence, brief footage of a vehicle leaving the McStay home’s driveway at 7:47 pm in the evening on February 4, 2010. San Diego County authorities assumed the vehicle to be the McStays’ 1996 Isuzu Trooper. San Bernardino investigators rejected that assumption and, after Merritt surfaced as a suspect, themselves assumed it was Merritt’s truck.
“But that’s anything but clear,” said Maline.
Maline moved on to February 6 in the prosecution’s timeline. “What happened on February 6th in the desert?” he asked. “Initially the theory was he buried the bodies on the sixth. That’s what [the] San Bernardino [County Sheriff’s Department] alleged, that Mr. Merritt buried the bodies on the sixth. But that changed when [FBI agent Kevin] Boles took the [witness] stand. It changed in mid-trial because the records that Agent Boles reviewed, the [cellphone] call data records. Based on his new training, it’s the beginning call that provides location data, not the ending. He had to change everything.  Those changes, as you saw, changed the whereabouts of Mr. Merritt and where he was pinging from and whether or not he was mobile.” Thereafter, Maline said, the prosecutors dropped their insistence that Merritt had buried the bodies on February 6.
Maline referenced the consideration that there were two different sets of vehicle tracks at the gravesite.
“How did this crime occur?” Maline asked. “Was it one person? Was it two people? The theory that the prosecutors have gone with since the beginning was it was one person. It was Mr. Merritt. And he killed them in the house and he loaded up the bodies in his truck and then buried them on the sixth. Did anyone ask how it would be possible for one person to do? Did anyone ask in the jury room, ‘Hey, wait a minute, there’s two different vehicles?’ There’s two different size tracks [at the gravesite]. There’s 73 inches and 76 inches. And that’s their [the San Bernardino County Sheriff’s Department’s and the prosecution’s] measurements. Actually, Mr. Liscio [an expert witness called by the prosecution] said it [the width of the wheel track on Merritt’s vehicle] was 71.5 inches. That doesn’t match Mr. Merritt’s truck. Those are two different measurements.”
“There’s not one single shred, speck, molecule – you name it of evidence, blood or otherwise, that ties Mr. Merritt to this crime,” Maline said. “Not one. That’s the state of the evidence in February of 2010 and that’s the state of the evidence today.”
Maline then played a clip of Imes’ closing statement in which he was heard saying that in order to obtain a conviction, the burden of proof on the prosecution “does not require us to prove where. It does not require us to prove when. And it does not require us to prove how.”
“Oh really?” Maline said. “What have they been doing for the past four years? That’s what we based our defense on, to combat the things that they said. Every time they put out a theory, we would provide a defense to it. So they changed.”
Maline continued. “With regard to where, when and how,” he said, “They don’t have proof beyond a reasonable doubt. You have the who. They pointed the finger at Mr. Merritt and called him a bunch of names. ‘Greed.’ Shouting, ‘Greed, greed,’ over and over again. It’s interesting to note that no matter how many times he [Imes] shouted it, he didn’t produce one witness, they didn’t produce one witness that said Mr. Merritt did a bad job on any job. They didn’t produce one witness who said his work was poor or that he didn’t complete a job. You saw how many jobs they were doing and the hundreds of thousands of dollars worth of business they were doing each year. But they shouted it: ‘He’s greedy. He steals. He does this. He does that.’ Under the authority of, for lack of a better word, the law, the police, whom we all respect, law enforcement, these prosecutors wear these little badges. And we all say, ‘They must have some authority. They must know something. If he’s shouting it, the louder he’s shouting, it must be true.’ But he didn’t produce any evidence Mr. Merritt stole anything, he did bad work. He just shouted it. They shouted it.”

By Amanda Frye and Mark Gutglueck
Future Redlands city managers will not get the same luxuriant accommodations on the public employee gravy train as their predecessors were entitled to as a consequence of the increasingly contentious divorce between the city and former City Manager Nabar Martinez.
Since Martinez’s November 6, 2018 firing, the city council and other city officials have learned of a secret, backroom deal Martinez brokered in 2016 with the city’s then- human resources director/risk manager, Amy Martin, that conferred upon Martinez and two of his children lifetime medical benefits.
The city has refused to provide those benefits to Martinez,  his son, Enrique Anatoly Maryshev-Martinez, and his daughter, Marianna Valentina Marysheva-Martinez. Nevertheless, the trio collectively followed up with a $1.5 million claim against the city, indicating they would relinquish their rights to those benefits only upon the city making such a cash payout. The city rejected that claim and Martinez, Maryshev-Martinez and Marysheva-Martinez filed suit against the city and City Attorney Dan McHugh.
The city, represented by the law firm of Best Best & Krieger, is constructing its defense against the suit on multiple grounds, rejecting the suits primary allegation of fraud and negligent misrepresentation, while pointing out that the lifetime coverage was part of a deal worked out by Nabar Martinez and Martin. Martin, who now goes by the name Amy Hagan, left the city over a dispute with Martinez, in which she claimed he was subjecting her to undue, unreasonable and improper demands and pressure. The contract, therefore, is theoretically void given that its terms, which were arrived at by Martin under Martinez’s prompting, were unduly influenced by Martinez. Martinez had direct authority over Martin, and could therefore dictate to her to put into the contract provisions that were inconsistent with the city’s best interest. Martinez, in his role as city manager and Martin’s direct supervisor, was therefore engaged in a conflict-of-interest in either or both dictating the terms of the benefit or ratifying it, according to the city. Under California law, any public contract tainted by a conflict of interest is void. Moreover, Martinez, as the city manager at the time that the deal to provide Martinez and his children with the medical coverage was arrived at, is therefore a party to the fraud and negligent misrepresentation he is alleging, according to the city.
Additionally, the city contends that the plaintiffs failed to allege a specific factual basis in support of the contention that McHugh sought “to deceive, vex, annoy or harm” Martinez or his children.
Additionally, the city maintains through Best Best & Krieger it is not liable for injuries caused by any misrepresentation Martin engaged in by proffering Martinez the medical coverage.
Yet up in the air at this time is whether the defense the city is making in the face of the lawsuit will suffice.  Martinez, Maryshev-Martinez and Marysheva-Martinez are represented by Sanford Kassel, who is anticipated to assert that a deal is a deal when consenting parties are involved, no matter the circumstances or authorities of those negotiating such a contract as long as those parties have standing within the entities they represent and have been duly appointed to those capacities, and that under the principles of contract law, a signed and ratified contract is binding. Also, potentially to be brought to bear in the matter is Martinez’s possession of a so-called “black book,” in which he made a practice of entering detailed accounts of closed door and private remarks and statements by the council, variances between public pronouncements by the council and action taken during closed door votes, miscues by council members individually and the council collectively, as well as both illegal and simply embarrassing acts by council members since shortly after his 2007 hiring.
When he was fired in November, there were reports that Martinez was to receive a severance package of $888,920.43, consisting of 18 months of his $350,896.08 annual salary & add-on pay and 18 months of his annual benefits of $78,383.94, which totals $643,920.43, along with a cash buyout of his accumulated perquisites including unused sick leave and vacation time and equipment and vehicle allowances totaling roughly $245,000. That payout of nearly $890,000 was rumored to have been brokered with the understanding that it would end any further claims Martinez would make against the city and buy his silence forever with regard to untoward acts by current and former city officials. The Sentinel was informed by the city’s chief spokesman, Carl Baker, however, that the report of the $888,920.43 payment to Martinez was in error. In actuality, Baker said, the total salary payout to Martinez was not 18 months but 15 months at $364,182, accrual payouts of $42,451.67 and $11,205.60 for 80 hours of unused administrative leave, totaling $417,839.27.
Whatever the precise case, some dissatisfaction on Martinez’s part endures, and he believes himself in a position to do something about it.
One year ago, Martinez was riding high at Redlands City Hall, and had the confidence of all of the city council, senior staff and McHugh. In any disputes with city residents, lesser city staff, or other entities, the city council reflexively sided with Martinez.  Essentially, he found himself undone when Martin-Hagan, who had left the city unofficially in December 2017 and officially in January 2018, threatened legal action over the city’s refusal, as would prove similar in Martinez’s case, to honor her claim to an entitlement to a so-called “medical bridge” program giving her medical coverage until she she reached the age of 65, conferred upon her in her separation agreement from the city, signed by her and Martinez on January 5, 2018. That medical coverage was in addition to a cash settlement of $133,981.25 Martin-Hagan was given to leave, derived from providing her with six months’ severance pay in the amount of $84,500 along with a $49,481.25 cash conversion of her accumulated 609 hours of vacation, illness and administrative break leave.
It was in the city’s defense against Martin-Hagan’s claim, which was filed with the U.S. Equal Employment Opportunity Commission, that a number of issues relating to Martinez were revealed that ultimately led to his being put on paid administrative leave in October and then being cashiered in November.
In the seven months since Martinez has left, city officials have discovered the degree to which high ranking city staff members have been given nearly unfettered license to write their own tickets,  conferring upon themselves lavish salaries, benefits and perquisites, with only the vaguest of oversight or constraint by the city council, several members of which have themselves been beneficiaries of city managers’ and top staff members’ provision of favors and municipal services not routinely provided to members of the public.
With the object demonstration of how Martinez exploited his cozy relationship with members of the city council in the recent and mid-range past, both the city attorney and members of the city council have been feeling vulnerable. On Tuesday, June 18, the city council considered an item brought before it calling for amending the Redlands Municipal Code to give the city council far greater flexibility in dealing with the city manager in terms of hiring, termination, compensation and the provision of authority and perquisites. The changes were formulated and recommended by McHugh.
The city council had rushed to fire Martinez on November 6 of last year, which was election night. That hurry was necessitated by the previous city code prohibiting the city manager’s firing “during or within a period of thirty days next succeeding any general municipal election” in which a council member is elected. Had the council not acted that night, Martinez would have remained city manager, officially if not in actuality, at least until December 6.
By its action this week, the council voting unanimously did away with that restriction on its discretion. The council also dispensed with the city manager’s authority under the municipal code to hire department directors without council input and ratification. The council further attenuated the city manager’s purview with regard to authority, compensation, and the latitude for claims for expense reimbursement.
The changes do not absolutely prohibit the council or a future council from entrusting the city manager with the same level of authority that Martinez and his predecessors enjoyed, but it requires that such power be specified in the city manager’s contract rather than in the city code.
A review of the city manager’s authority had not taken place for some 15 years, which was some three years before Martinez’s hiring as city manager.
At present, Assistant City Manager Janice McConnell is serving in the role of acting city manager. The city council’s action this week ensures that when a full-fledged city manager is hired, his or her lines of authority will be clearly demarked.

With the fate of her predecessor in large measure hanging over her, Teri Ledoux was selected by the San Bernardino City Council to serve for the next year-and-a-half as city manager in the county seat.
Ledoux was offered, and apparently accepted, the 18-month contract which is effective July 1, without an explicit understanding as to her salary and benefit level, although it is understood that she will maintain at the least the $172,000 per year total compensation level she received as assistant city manager under recently departed City Manager Andrea Travis Miller.
Of note is that in August 2017,  Travis-Miller was hired as city manager pursuant to a five-year contract. That contract, however, involved a severance arrangement that permitted Travis-Miller’s immediate termination without notice and a severance package equal to one year’s compensation. Miller was only 16 months, or less than 27 percent, into the 60-month duration of the contract, when in December 2018 a move to remove her as city manager materialized. Though a consensus on the council to jettison her had not formed at that point, over the course of the next five months adequate votes on the council manifested to cashier Travis-Miller, and her removal was effectuated on May 29.
In the run-up to her forced departure, Travis-Miller sought to scorch the earth in the 220,000-population city by having key administrative personnel at City Hall serving under her exit with her, such as the department heads in the finance, public works and community development divisions along with Ledoux, leaving the city rudderless.
Ledoux’s departure with Travis-Miller was foreclosed, however, in no small measure by the offer that was made to have her to serve in the capacity of interim or acting city manager in what turned out to be the seven-week-and-six day gap between Travis-Miller’s April 3 suspension and her May 29 firing. Ledoux filled in for Travis-Miller during that time and remained in place after her mentor’s departure. There were reports extant that Travis-Miller, who had persuaded Ledoux to come to San Bernardino to serve as assistant city manager in October 2017 and was therefore thought to be able to rely upon LeDoux’s loyalty when the chips were down with the city council, had been somewhat cavalier and on occasion mildly verbally abusive in her treatment of Ledoux over the last year, thereby driving a gratuitous wedge between the two women.
Ledoux, 60, who has also been known professionally as Teri Baker, graduated from the University of Redlands with a bachelor of science degree in business administration and management and went on to get a master’s degree in public administration at Cal State San Bernardino. She has extensive previous experience in San Bernardino, where from 1995 until 2010, she was a lower-level assistant to the city manager. In 2010, she was promoted to the post of director of administrative services with the city. In July 2012, while she was yet on very good terms with Travis-Miller, as Travis-Miller was promoted from her position as a high level assistant to the city manager to the role of acting/interim city manager after Charles McNeely’s departure just prior to San Bernardino’s filing for Chapter 9 bankruptcy protection, Ledoux was promoted to become Travis-Miller’s top drawer assistant to the city manager. In March 2013, she departed to serve as assistant to the city manager in Huntington Beach, remaining there for two years and eight months. In November 2015, she transferred into a similarly-titled position with the City of La Verne, where she stayed for nearly two years before being brought back to San Bernardino by Travis-Miller.
The post of city manager in California municipalities generally carries with it the hazard of an accelerated rate of turnover in that the constant changeover in city councils per the electoral process can result in a city manager hired under the direction of a controlling majority of a city council falling into disfavor with a succeeding city council. San Bernardino over the last 22 years has cycled through city managers at a rate slightly faster than California cities on average, with ten city managers in that time frame, counting Travis-Miller twice for her separate tours in the position and including LeDoux, starting with Shauna Clark, who served as the elected city clerk before being hired as city manager; Fred Wilson, who stepped into the city manager’s post after serving as San Bernardino’s assistant administrator for seven years and went on to become city manager in Huntington Beach after leaving San Bernardino, where he hired Ledoux as one of his assistants; Mark Weinberg, the  city manager in Inglewood for more than three decades; Charles McNeely, who was the city manager in Reno, Nevada for 13 years before relocating to San Bernardino; Travis-Miller in her first go-round as the city’s top administrator, in an interim capacity; Allen Parker, who had been the municipal or city administrator or city manager in South El Monte, Compton, Seal Beach, Half Moon Bay, East Palo Alto, Oak Park, Illinois and Maywood, Illinois after working as an administrator with the City of Kanasas City, Missouri; Mark Scott, the one-time city manager of Beverly Hills, Culver City, Fresno and Burbank; and Travis-Miller in her most recent tenure.
The council and Ledoux are expected to meet in closed session on July 17 to discuss the yet-to-be-determined terms of Ledoux’s contract. The amount of money Ledoux will be willing to work for is of some moment in San Bernardino, as the city was forced to take refuge in Chapter 9 bankruptcy for nearly five years beginning in 2012 as a consequence of inflated salaries and benefits provided to city employees that left the city with a structural deficit, a $49 million budgetary shortfall and long term debt of over $400 million. In the four years and ten months between the time it entered into bankruptcy in August 2012 and its emergence in June 2017, the city stiffed a combination of some 209 creditors, vendors and partners for just over $350 million. Left largely unscathed by that devastation were the city’s employees, who continued to draw paychecks throughout the ordeal. They have seen no reductions in pay and their benefits remain intact, including the pensions they were promised by past mayors and city councils, though going forward the city’s employees are now being called upon to make a slight increase in their individual contributions toward their retirement benefits.
Two years after its official  exit from bankruptcy, the city is yet beset with a lack of fiscal discipline, as expenditures in the soon-to-conclude 2018-19 fiscal year are on a trajectory to eclipse revenues in the same period by more than $11 million. If current trends continue, that deficit will zoom to over $16 million by the end of upcoming 2019-20. The prospect of the city falling back into bankruptcy is a real one. In that eventuality, given the city’s demonstrated inability to come to terms with its overindulged and overpaid staff in the past and the unlikelihood that the city’s public employee unions will make the concessions needed to bring the city’s expenditures into balance with its revenues, disincorporation of the 150-year-old city, the county’s oldest, is a looming possibility.
Consequently, Mayor John Valdivia and his team are casting about for a way to impose on the entirety of city staff what in at least some other contexts might be considered drastic pay reductions in the neighborhood of 25 percent across the board. Earlier this month, the council used its authority to have elected City Attorney Gary Saenz, who is also a full-time city employee, take 45.8 percent cut in his total annual compensation; elected City Clerk Gigi Hanna, who is also a full-time city employee, take a 59.2 percent cut in her total annual compensation; and City Treasurer David Kennedy, who is what is deemed a part-time city employee, take a 90 percent pay cut.
It is the current San Bernrdino political establishment’s hope going toward the July 17 meeting that Ledoux will be content with receiving two-thirds the total annual compensation provided to Travis Miller. Miller was provided with $307,941.56 in total compensation on a yearly basis, consisting of her $262,542.50 annual salary and $45,399.06 in annual benefits.  Thus, it is surmised, the council will offer Ledoux $175,028.34 in annual salary, coupled with $30,770.61 in benefits. If Ledoux were to accept this level of compensation, it would leave her with the situational authority to ask the rest of the city’s work force to voluntarily take 25 percent pay cuts. If those employees do not comply with that request, Ledoux would then be armed with what the Valdivia team considers to be the “moral authority” to lay those employees off, and subsequently carry out a study to determine which of those positions can be permanently eliminated before doing so. Those remaining vacant positions deemed necessary for the continuation of municipal function and the provision of services would then be filled by contractual arrangements, by which young and qualified candidates, eager to obtain municipal experience or positions, would be hired at salaries or hourly rates at least 25 percent lower than is being provided to current city employees holding those positions.
Yet to be seen is whether Ledoux will be willing to carry out that assignment and whether she can accomplish it during the first 15 months of her 18 month contract, at which point four of the seven positions on the city council will be up for election in the November 2020 election.
–Mark Gutglueck

The Highland City Council on June 11 approved a new ordinance eliminating a previous  restrictions on accessory dwelling units or so-called granny flats, substituting in new ones that to some degree liberalize rules, regulations and codes relating to permitting a secondary structure on existing residential parcels.
In essence, the change brings the city into compliance with recent state legislation intended to facilitate the provision of housing to redress California’s housing shortage.
With Mayor Penny Lilburn in opposition the item passed 4-1
In October 2017, Senate Bill 229 and Assembly Bill 494 were passed by the legislature and signed into law by then-Governor Jerry Brown, going into effect on January 1, 2018.
The legislature’s rational for easing requirements for accessory dwelling units was to give homeowners the flexibility to share independent living areas with family members and others, allowing senior citizens to age in place as they require more care and helping extended families to be near one another while maintaining privacy. Relaxed regulations and the cost to build an accessory dwelling unit make it feasible and affordable housing option for such purposes, according to the legislature. The state law also was intended to make it so that accessory dwelling units could provide property owners a way to supplement their incomes by renting the units while being able to serve different populations ranging from students and young professionals to young families, people with disabilities and senior citizens.
Senate Bill 229 and Assembly Bill 494 were in conflict with the City of Highland’s previously existing ordinance pertaining to second dwelling units on residential lots. In essence, the new laws rendered the city’s existing ordinance inapplicable. Cities yet had the authority to regulate, within certain parameters, granny flats, but could not ban them outright.
City Attorney Maricela Marroquin said, “When this law took effect it voided existing ADU ordinances that do not comply with the new state law. We essentially have no regulations until we put something into effect.”
The city’s newly adopted ordinance conforms with Senate Bill 229 and Assembly Bill 494, such that the accessory dwellings can be both attached or unattached from the primary residence, can exist as garage conversions, and can be as small as 150 square feet and as large as 1,200 square feet up to 50 percent of the size of the primary dwelling. These units must have a kitchen, bathroom, sleeping space and a separate entrance. The addition of one parking space is required unless the unit is within half a mile from public transportation.
Roughly 20 percent of the city’s residential properties are a half-mile distant of the city’s bus stops, according to Associate Planner TomThornsley. The parking must be on an improved surface; parking on dirt or the lawn or on the public street is not permitted, according to Community Development Director Lawrence Mainez.
The city’s leadership previously deemed the proliferation of granny flats as undesirable, based on their potential to crowd existing neighborhoods beyond their intended density and negatively impact the quality of life in the city.
It was clear, based on the vote of Lilburn and statements made by Councilman John Timmer, that a significant portion of the city’s leadership is conceptually opposed to permitting accessory dwelling units to proliferate in the city, and were making the changes only as a concession to the change in state law.
The change in the city’s regulations is unlikely to result in a mad rush to build granny flats, given the hoops that proponents of such projects will yet need to jump through to obtain clearance to proceed.
Without the city redrafting the ordinance, according to City Manager Joseph Hughes, “Somebody could come in right now and do one of these units.”
The city’s ordinance will now require that if a granny flat is built, it will be done so in compliance with the city’s “code requirements for such things as minimum lot size, building setbacks, unit size, parking, general plan consistency, and lot coverage,” according to a report to the city council from Mainez that was reviewed by Assistant Community Development Director Kim Stater and prepared by Thornseley.
Timmer said that “We currently are living under the state ordinance” and that the city was redrafting the no-longer-applicable ordinance to provide for “tighter regulations to better protect our city. We’re still doing what the state is saying,” he said, but utilizing the leeway in the state law to layer in reasonable requirements under the aegis of the city’s codes.
Until the state law went into effect, the impact fees applicants were required to pay along with other regulations dissuaded many of those who were contemplating accessory dwelling units. Two granny flats were built in the city over the past year. Under the new ordinance, applicants will yet be required to foot the cost of development impact fees, meet all standards with regard to the livability of the dwelling unit to be created, and be subject to code enforcement inspection and compliance with all applicable codes.
The ordinance further requires that such accessory units be constructed on a lot whereon the property owner resides, thus disallowing a property owner to use the liberalization in the state law to engage in absentee landlording.
At the recommendation of the planning commission the ordinance was drawn to include a provision prohibiting the units from being rented for any period less than 30 days.
The ordinance defines an accessory dwelling unit as “an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons, with permanent provisions for living, sleeping, eating, cooking and sanitation needs sited on the same parcel as the primary dwelling unit.”
According to the new ordinance, an attached unit must have a separate entrance and they must meet setbacks requirements under the city’s code and conform to the current development standards for setbacks and lot coverage for the zoning district within which they are located.
If the unit is to consist of a garage conversion, under state law a replacement garage cannot be required. The units cannot be sold separate from the primary dwelling unit.
Under the city’s new regulations, only an owner-occupant of the primary dwelling unit is eligible to file an application for an accessory dwelling unit. An application for a permit to create an accessory dwelling unit shall be approved or disapproved ministerially without discretionary review within 120 days after the application is received.
Accessory dwelling units cannot be built higher than a single story to a maximum of 16 feet. Attached units cannot be higher than the main unit. A unit, however, can be constructed over an existing garage which is attached to a two story dwelling.
Granny flats must match the design of the primary dwelling unit and the surrounding neighborhood in terms of height, mass, landscaping, and architectural materials.
All fees that are applied to new residential units are applicable to accessory dwelling units.
-Mark Gutglueck

The feeling of June Gloom is real in Southern California. We went from high hot temperatures to perfect, cool and gloomy.  Despite it all, the sun hats are popping and the prints are blooming, be it tops, jumpers, skirts, shorts,  or dresses. Gloom is definitely not stopping the bloom! June is just the beginning of summer and we are looking excited with all the different looks the hot season adds to our wardrobe. There’s a lot of mixing and matching of tops with shorts and skirts. You  can definitely add a floral top and not do yourself any injustice. And if you’re in the mood for a summer dress, make sure its blooming with flowers and add a hat of any type. You can always take a jumpsuit and throw on a floral top or hat. Remember your sandals, because you might want to show off a floral colored pedicure. Whatever you wear, make sure you bloom the gloom out of it and enjoy the current weather. Stay tuned for more summer looks ahead.

“Style is something each of us already has. All we need to do is find it.” —Diane von Furstenberg

By clicking on the blue portal below, you can download a PDF of the June 14 edition of the San Bernardino County Sentinel.

Sentinel 06-14-19