By Mark Gutglueck
Former San Bernardino City Manager Andrea Miller this week filed a claim against her erstwhile employer, alleging her suspension and dismissal were preceded by multiple violations of the terms of her employment contract with the city that interfered with her ability to perform in her hired capacity.
In particular, Miller cites interference by Mayor John Valdivia, who was formerly the city’s Ward 3 councilman and was elected to the mayor’s post in November 2018. Valdivia and his staff engaged in, according to the claim, “retaliation, discrimination [and] harassment” and exacerbated the circumstance through a “failure to take corrective action.” Miller also asserted she had whistleblower status.
Miller was suspended on April 3 and fired without any cause being given on May 29. She was elevated from her position of assistant city manager to that of city manager in August 2017, shortly after the departure of former City Manager Mark Scott. Miller had returned to the employ of San Bernardino in the capacity of assistant city manager in October 2016. Previously, Miller had served in the capacity of San Bernardino’s acting city manager in 2012 and 2013, after her initial hiring by the city as an assistant to then-City Manager Charles McNeely in 2011. In between her 2013 departure from San Bernardino and her 2016 return, she had worked as the general manager of the San Gabriel Valley Council of Governments and Covina city manager.
Miller’s clash with Valdivia stemmed, according to the claim, in large measure from her efforts to enforce the city’s codes and regulations against businesses and properties owned or operated by donors to Valdivia’s political war chest, as well as a consequence of Valdivia’s efforts to improperly expand the mayor’s authority beyond the limitations that had been impose by the city’s redrafted charter, which was approved by the city’s voters in 2016.
“In late 2017 and 2018, Miller strengthened enforcement against illegal cannabis businesses,” the claim states, referencing San Bernardino Municipal Code Chapter 5. 10. “In fact, more than 50 illegal businesses closed. Valdivia expressed concern to Miller about the strengthened enforcement. Interestingly, Valdivia receives significant campaign contributions from the cannabis industry.”
Furthermore, according to the claim, “In late 2017 and 2018, Miller strengthened code enforcement to add criminal prosecution and civil abatement. As a result, several cases against Pama Management were instituted. Pama Management is the owner of numerous residential properties. Valdivia tried to intercede on the company’ s behalf, including about code enforcement efforts toward Pama following a shooting at one of its’ properties. Interestingly, Valdivia receives significant campaign contributions from Pama Management.”
The claim lays out the fashion in which Miller antagonized the mayor by making a criminal referral regarding his involvement with the cannabis industry, in particular an incident that took place on November 14, 2018, eight days after Valdivia had been elected mayor but before he was sworn into that position.
“Miller referred a felony robbery/shooting investigation at a red-tagged cannabis business to the San Bernardino County District Attorney,” according to the claim. “At the time of the robbery/shooting, Valdivia (as mayor-elect) had been meeting with a cannabis business owner 30 minutes to 2 hours prior to the incident.” The cannabis business owner, the claim notes, “was charged in June 2018 with eight felonies for allegedly operating four illegal marijuana dispensaries in the City of San Bernardino, including the one [where] the Valdivia meeting occurred.”
Valdivia has adamantly denied that he was involved in the theft or the shooting and that the temporal proximity of his meeting with a member of the city’s business community and the robbery was a coincidence.
The claim maintains that Valdivia intruded into Miller’s administrative and managerial bailiwick on several occasions.
“On or about March 2019, Valdivia proposed and a majority of the city council accepted for first reading, an amendment that significantly changed the city code re: duties/authority of city manager. The ordinance was prepared by the mayor’ s office. At Mayor Valdivia’ s recommendation, [the] city council terminated the contract with Greg Devereaux, who worked with city to prepare the bankruptcy plan of adjustment and other good governance policies. Miller reiterated to Valdivia that under the city’ s municipal code, the city manager, not the mayor, could give direction to staff and assume administrative responsibility for issues such as city-wide communications, economic development, animal control service options, and police deployment. Miller denied Mayor Valdivia/city council members full access to complainant information in [the] code enforcement database following complaints of retaliation and obstruction of justice. The employment agreement between Miller and the City of San Bernardino was breached by the city numerous times through violations of numerous provisions, included but not limited to: Section 2. C. 3 (interference with powers and duties of the city manager). [C]hanges to the San Bernardino City Code pertaining to the duties of the city manager were initiated by the mayor’s office and adopted by the city council. These changes altered the duties and responsibilities of the city manager. Over the course of about 15 weeks, from approximately mid-December 2018 to April 3, 2019, when Ms. Miller was placed on paid administrative leave, there were repeated violations of the charter; and of city codes related to the duties of the mayor, city council members and city staff, and conduct of elected officials; and of resolutions adopted by a majority of the city council related to interactions with the city manager and city employees, and their respective roles. These violations interfered with Ms. Miller’s ability to serve as the city manager.”
A manifestation of the Valdivia team’s interference in her function as city manager, Miller’s complaint asserts, related to her having “repeatedly attempted to schedule strategic planning sessions in an attempt to gain consensus and establish clear direction related to priorities of the mayor and city council’s expectations. A session was scheduled by Ms. Miller and then canceled by the mayor. Ms. Miller also had email exchanges with the mayor’ s office directing her not to schedule meetings and that strategic planning and other meetings would be coordinated by the mayor’s office. She attempted to meet with elected officials as required in the agreement, and emails suggesting these meetings were often ignored. A mid-year performance evaluation initiated by the mayor’s office was conducted, which is permissible pursuant to the agreement; however, the appraisal was not conducted in compliance with the terms of the agreement.”
Miller’s claim maintains that Valdvia’s action “undermined her authority, credibility and relationships with city employees, consultants, and contractors.”
Miller’s claim suggests she earned the mayor’s enmity by resisting on economic grounds his efforts to expand the mayoral staff and the police department’s command echelon, as well as Valdivia’s non-essential expenditures. “Miller advised the city council of the costs and impacts on staffing, deployment and response times related to Valdivia’s proposal to open five police substations, promote five new sergeants, and two or three new lieutenants at a significant cost,” according to the claim. “Miller advised Valdivia that expenditures for [the] mayor’ s travel exceeding budget. From mid-December through March, [the] mayor has traveled to Washington DC two times, Sacramento two or three times and has or is scheduling trips to South Korea, China and Taiwan. Miller objected to a 20% pay increase for the mayor’ s chief of staff. The raise was not given.”
Valdvia also grew to resent her efforts to have him, his staff and the city council adhere to legal restrictions on elected officials, the claim alleges. “Miller continually warned the mayor’s office about Brown Act violations re: discussions with council members about contracting with Riverside County for animal services. Miller addressed potential Fair Labor Standards Act issues related to [a city] receptionist being assigned to attend evening meetings and presentations with the mayor.”
Miller’s claim says she complained to Valdivia and other council members about a hostile work environment created by the mayor’ s office to no avail. “Miller complained to different city council members about threatening emails received from the mayor’s office. Within a few days, Miller was placed on administrative leave. The mayor and members of the mayor’s staff, at his direction and with his knowledge and consent, created a work environment that was untenable, and Ms. Miller was retaliated against for exposing this environment to the other elected officials to whom she reported. Ms. Miller was placed on administrative leave on April 3, 2019, and terminated without any grounds on May 30, 2019.”
Efforts to reach Valdivia were unsuccessful.
A claim is considered a precursor to a lawsuit. Administrative protocol calls for a claim to be made, upon which a governmental entity can offer a settlement. If the claim is rejected, the claimant then has legal clearance to sue.
Miller does not specify a dollar amount in her claim, but asserts “general, special (economic and non-economic) damages and punitive including without limitation: potential future damages for potential medical treatment; potential psychological treatment; psychiatric treatment; loss of earnings opportunities and future earning opportunities; loss of reputation; embarrassment and humiliation, attorneys fees, and future attorneys fees, litigation costs and experts charges all in a sum to be proven at time of trial and such other damages as presented at trial. Plaintiff also suffered lost promotional opportunities, and retaliation, lost reputation, damages to reputation, and lost interest and such other damages as determined at time of trial.”
Former City Manager Fixing To Sue San Bernardino
By Mark Gutglueck