Best Best & Krieger Diverting Investigative Focus From Valdivia Graft Links

By Mark Gutglueck
As an internal investigation into San Bernardino Mayor John Valdivia is proceeding, concerns have been raised over indications the city’s legal counsel is involved in an active effort to thwart a full-fledged examination of reports and evidence that Valdivia’s depredations involved both the solicitation and acceptance of bribes.
The investigation now ongoing was prompted by the circumstance attending the January 29 resignations of two city employees, Mirna Cisneros and Karen Cervantes, who had been assigned to the mayor’s office last year.
Cisneros, who worked as a customer service representative and was assigned to Valdivia’s office in that capacity relatively shortly after he became mayor in December 2018, and Karen Cervantes, who was hired as Valdivia’s assistant in September 2019, say they were subjected to Valdivia’s sexual harassment and advances, and endured a hostile work environment along with a string of humiliations after rejecting his advances.
Cisneros and Cervantes are represented by attorney Tristan Pelayes, who guided them in their efforts during their latter stage of employment with the city to be moved into positions outside the mayor’s office. When the city demonstrated it was not amenable to placing them elsewhere, they resigned and a little more than two weeks later, on February 13, filed claims against the city.
In short order, it was revealed that Pelayes was representing three other city employees working within the mayor’s office, as well as a city commissioner who who had similarly been subjected to abusive treatment by the mayor. Those clients were two other woman, Jackie Aboud, who had served as Valdivia’s field representative for nearly ten months from last April until he fired her in January, and Alissa Payne, whom Valdivia had nominated to serve on the city’s Arts and Historical Preservation Commission and the San Bernardino Parks, Recreation and Community Services Commission. The others were Don Smith, who had worked on Valdivia’s campaign for mayor and was subsequently hired by the city to serve as Valdivia’s part time field representative, and, most shockingly, Matt Brown, Valdivia’s chief of staff who has been serving in that capacity since August 2019, roughly a month after Valdivia’s original chief of staff, Bill Essayli, had resigned.
The initial revelations relating to Cisneros and Cervantes and much of what followed pertained to what appeared to be Valdivia’s genderist or sexist attitude and behavior.
According to Payne, Valdivia engaged in unwanted sexually-tinged overtures with her, including inappropriate physical contact. “He went as far as offering to provide me an apartment, would tell me how to vote and what to say or do at the commission meetings, asked me to meet him alone in the evening after hours, and promised – guaranteed –  me a seat on the city dais as the Second Ward council member,” Payne said. She recounted that Valdivia “invited me to attend a dinner event as his personal guest where he was persistently trying to get me intoxicated, which I declined. The mayor was preying on me.”
While much or perhaps even most of what Cisneros, Cervantes, Aboud and Payne were alleging related to sexual advances the mayor had made toward them, vulgar comments about women and his sexual activity, and his pressuring them to accompany him to after hours events and spend time alone with him, some of those who came forward have further suggested that Valdivia’s abuse of power did not limit itself to untoward action toward them but had crossed the line into criminal activity and violations of the public trust, including graft.
An early indication of this was most prominent in statements made in Cisneros’s claim and her public statements. She said that in his interactions with her, Valdivia either let slip or openly acknowledged that he was misusing public funds for personal use. According to Cisneros’s claim, “On January 14, 2020, Valdivia asked claimant to process a reimbursement to the airport for hotel and breakfast meal. He specifically asked her to be vague when sending the information to the airport staff about the meeting. He also said not to ‘name names’ of the individuals that he met with. Right after that conversation he stated that he had raised a lot of money on that specific trip for his campaign.” The airport alluded to is the San Bernardino International Airport, the executive board for which Valdivia is a member as a consequence of his role as mayor.
Cisneros also said that Valdivia at the very least was in violation of the gift-receiving reporting requirements that are applicable to elected and public officials and perhaps had gone further into the criminal arena of accepting bribes.
According to Cisneros’s claim, “In December 2019, Valdivia said that he can get VIP tickets for future rave events, if claimant was ever interested in attending. He also mentioned that he also went to EDC [the Electric Daisy Carnival] in Las Vegas and everything was paid for and he did not report any of the gifts.” According to Cisneros’s claim, “On December 17, 2019, Valdivia shared that he is really good friends with someone who is always offering him his private jet. He said that he will work something out where he does not have to claim it on his forms and wants to travel in the jet. He asked claimant if she would want to travel with him. He said there is always a way to get around everything. He also asked if she would like to go to New York for New Year’s Eve.” Cisneros also disclosed that “On January 15, 2020, Valdivia shared that an ambassador had gifted him a bottle of alcohol that was worth $900 and he wasn’t going to report it. He also shared that he is always receiving gifts and not reporting them.”
Cisneros said that Valdivia pressured her to work, while she was on the clock in her capacity as a city employee, on the reelection efforts for two of his allies on the city council who were up for reelection on March 3, Bessine Richard and Juan Figueroa. She said Valdivia suggested she could use vacation time to absent herself from her employment duties at City Hall if she felt uncomfortable about being paid by the city while working on the political campaigns. It was clear Valdivia was pushing her to engage in partisan activity as a city employee, she said. “He said ‘I am not pointing a gun to your head. Just asking for your help,’” according to Cisneros.
According to Aboud, there is evidence to suggest that Valdivia was engaged in overt political patronage and using the power of his office to steer favorable treatment to those who had supported him in his successful run for mayor, and that he was similarly using that authority to punish those who did not support him. She said that Valdivia told her “that my job was not to serve the community but to serve him and meet his personal needs.” Aboud said, “The mayor doesn’t care about the community, only certain areas that supported him during his election. I was ordered to not help, support, or partner with parts of the community that didn’t support him in the election, like the 4th and 7th Ward.”
There is no apparent genderist or sexist element to the issues that Smith and Brown have with Valdivia and his treatment of them, but both men expressed concerns about the mayor’s vituperative nature.
According to Smith, Valdivia “ordered me to work extra hours, while not getting paid, promising me a promotion opportunity. He had me run personal errands like getting his car serviced while on the clock for the city. He offered to pay me for side work, then would never pay me fully after I completed the work. He routinely threatened my job as a means to bully me.”
When Brown was informed of Valdivia’s treatment of Cisneros, Cervantes and Aboud, he had reported what he had learned to the city manager’s office and the city’s personnel department. Upon learning of Brown’s action, Valdivia interpreted that as an act of disloyalty on his chief of staff’s part.
Beyond Valdivia’s treatment of them, both Smith and Brown have a window on the influence peddling going on at City Hall, and Valdivia’s place at the center of a pay-to-play ethos that Cisneros and Aboud have hinted at. Both possess, the Sentinel has learned, specific information that has criminal implications, including acts of bribery, the provision of payoffs and kickbacks and Valdivia’s activity in his capacity as mayor to influence city policy, decisions and votes to favor entities, businesses and individuals willing to convey money to him, his campaign or those of his associates.
There are indications, current and former city officials and employees have told the Sentinel, that Best Best & Krieger is seeking to steer the ongoing investigation away from an exploration of those aspects of Valdivia’s behavior falling under the criminal code such as bribery, perjury and misappropriation of public funds to instead have the inquiry concentrate on those elements of the scandal relating to his personal and personality-driven behavioral issues that relate to his treatment of city employees which have potential civil consequences but do not move into the arena of criminal violations.
Best Best & Krieger’s motivation for ignoring the criminal implication of the San Bernardino mayoral crisis is manifold.
Most basically, the scandal Valdivia has created is complicating the overall function at City Hall, and is particularly making things difficult in the offices of the city manager and city attorney. Best Best & Krieger associate Thomas Rice serves as San Bernardino’s city attorney and Best Best & Krieger partner Sonia Carvalho serves as San Bernardino’s deputy city attorney.  By containing the matter pertaining to Valdivia within limited parameters, Rice and Carvalho can perhaps prevent the crisis from feeding upon itself and mushrooming out of control.
Other litigation the city is involved in could be impacted by determinations that are made with regard to the mayor’s activity, and the more egregious his action is documented as being in the course of the investigation, the greater the chance that other plaintiffs will pick up on the investigation’s findings and use those to support their allegations if a cross reference to the facts common to the cases can be made.
A determination of criminality on Valdivia’s part would invite greater scrutiny to the matter involving him in particular and the city in general, including the manner in which Best Best & Krieger as well as Rice and Carvalho failed to act forthrightly in addressing the complaints about the mayor early on. According to Pelayes, well before the scandal went public, there were repeated efforts by Cisneros, Cervantes and Aboud to get city officials, including those in the city manager’s office and the city attorney’s office, to act. City officials at the highest echelon were remiss in not taking seriously what they had been alerted to, Pelayes said. “All of these incidents have been reported numerous times to city administrators, yet nothing was done, and they continued to be victimized by Mayor Valdivia,” Pelayes said. It was only after his office took action and moved the issues into the public spotlight that city management and the city attorney’s office made a show of responding, he said. But that was more window dressing than substance, Pelayes said, as the city and its law firm were more intent on having the publicity subside than getting to the bottom of the problem. In this way, Pelayes accused the city of conducting a sham investigation.
“Although the city has begun an internal investigation, they declined our requests to collectively work together through the process and choose an independent investigator to ensure a fair investigation, put the mayor on leave during the investigation, and provide alternate positions for my clients to return to work without losing their employment status and benefits,” Pelayes said. “They stated that our requests were unreasonable.”
Best Best & Krieger is an establishment law firm, having originated in 1891. It or its lawyers serve in the capacity of city attorney for 32 municipalities in California. As such, the firm has a reputation for enabling the mayors and members of the city and town councils it represents, pursuing a philosophy that the mayors and members of those councils are duly elected and speak for the body politic at large, thus making Best Best & Krieger the legal representatives of not just the cities as entities but the personal attorneys of the various members of the councils and mayors where the firm has been retained, requiring of them loyalty to those elected officials as clients. In this way, Best Best & Krieger is committed to constructing a legal/criminal defense of those clients, as in this case Valdivia, which in practical terms translates into heading off any criminal prosecution before it occurs.
Were Best Best & Krieger or any of its attorneys to abandon Valdivia and throw him to the legal wolves, as it were, that action would be considered by the firm’s other clients – elected council members and mayors – who might consider such an act of abandonment in determining whether they want their city or town to continue to be represented by the firm.
Valdivia stands accused of engaging in influence peddling and functioning within a pay-to-play culture. Best Best & Krieger or its attorneys currently serve as the city or town attorney in four other San Bernardino County cities – Big Bear, where Best Best & Krieger Partner Steve Deitsch holds that position; Fontana where Best Best & Krieger partner Jeff Ballinger is city attorney; Colton where Best Best & Krieger partner Carlos Campos is city attorney and Carvalho was previously city attorney; and Apple Valley, where Rice is town attorney.
Until recently, Best Best & Krieger Partner John Brown was city attorney in Ontario and Best Best & Krieger partner Ruben Duran was city attorney in Adelanto.
In Adelanto, during Duran’s tenure there, outright bribery of public officials was ongoing. During Brown’s tenure as city attorney in Ontario and Ballinger’s tenure as city attorney in Fontana, a pay-to-play ethos has prevailed. Early in Carvalho’s tenure as city attorney in Colton, Mayor Karl Gaytan and councilmen Don Sanders and James Grimsby were caught up in a bribery scheme, indicted, prosecuted and convicted. It is not in Best Best & Krieger’s interest for an intensive round of inquiry into political influence trading to occur, one which could be triggered countywide were such a probe to be undertaken in San Bernardino.
On February 5, Carvalho made a statement during the course of that evening’s city council meeting intended to offer reassurance that the matter pertaining to Valdivia was being properly looked into. At the same time, her statement seemed angled toward preventing the matter from being opened any further, to a point beyond which a criminal inquiry would become inevitable. “Mayor and council members, I wanted to assure you and also especially members of the public that the city manager and director of human resources have taken immediate action to address the recent claims that have been referred to in a newspaper article,” Carvalho said. “The city has outside legal counsel that advises the city on all employment matters, and this firm is advising staff on its legal obligations to strictly comply and follow with all of your personnel rules, and to conduct a thorough investigation. We ask for your patience, knowing that staff needs to comply with these policies and state and federal law. The public should know that all of you have been advised of your legal responsibilities and your fiduciary duties, and your obligation not to disclose confidential personnel information, and this may be why some of you cannot speak to the press or members of the public.”
More than a month has elapsed since that point. Word has reached the Sentinel that witnesses who would logically be called in the course of a thorough investigation into the issues relating to the mayor, his behavior and activities have not been contacted. One of those is former City Manager Andrea Travis-Miller, whose tenure as the city’s top administrator ended six months after Valdivia became mayor. Travis-Miller was put on paid administrative leave in early April 2019. Almost immediately after Valdivia was sworn in as mayor in December 2018, he sought to have his then-allies on the council sack Travis-Miller. There ensued three months of tension, during which there were several sharp exchanges between the mayor and city manager in private, many of which related to Valdivia seeking to exercise authority he did not legally possess under the city charter put in place by a vote of the city’s voters in 2016. There are indications that Travis-Miller has either direct or indirect information relating to illegal acts engaged in by Valdivia. She is pursuing a lawsuit against the city over her termination. To date, investigators with the city have not contacted her or her lawyer.
Beginning early in his tenure as mayor, Valdivia, without citing a reason, would leave the council dais when any issue relating to the licensing of a cannabis-related business came before the council. Reports were that he was acting as an agent for several businesses dealing in marijuana or marijuana-based products seeking operating permits. More recently, he has remained in place to officiate over matters pertaining to some of those businesses’ applications, including a controversial one involving a company Valdivia is said to be connected to, Nibble This LLC, which was granted a right to proceed toward becoming operational though it did not have a properly executed lease for the property upon which the concern was to carry out its function, as is required for cannabis-related businesses under city regulations. This brought recurrent charges from Nibble This LLC’s competitors that the city was conferring favorable treatment on Nibble This and its principal, Raquel Origel. Best Best & Krieger is resisting having the investigation focus on reports that Nibble This LLC provided money directly to Valdivia in an effort to influence the city’s licensing of its operation.
For some time a report has been circulating that Valdivia was provided with $10,000 by the city’s franchised trash hauler, Burrtec Industries. Best Best & Krieger has discouraged an examination of those reports.
According to elements of the political infrastructure around Valdivia, the political consultant who managed Valdivia’s successful 2018 campaign, Chris Jones, has a comprehensive knowledge of the donors to Valdivia’s campaign, those being a substantial cross section of the business community, many of which have interests that would be impacted by decisions of and actions by the San Bernardino City Council. In this way, Jones is said to be able to provide a road map of the influence trading that has been ongoing at City Hall since Valdivia became mayor. Reliable reports are that Valdivia hired Brown to serve as his chief of staff at Jones’ suggestion.
The Sentinel is informed that the investigators have not nor will they question Brown with regard to his knowledge pertaining to influence trading involving Valdivia’s administration, and they will not seek any input from Jones on the subject.
Valdivia’s former campaign treasurer, Robert Rego, possesses a wealth of information with regard to where Valdivia has obtained the funding to sustain his political career, and Rego can outline the convergence of the money provided to the mayor and his campaign war chest and the action taken by the city council both while Valdivia was a councilman and when he was mayor which had an impact on the fortunes of his campaign donors and personal benefactors. Investigators have not been cleared to speak with Rego.
It will be difficult for the investigators to get around dealing with Don Smith, who as of this week was still employed by the city as Valdivia’s field representative and who is represented by Pelayes.
In conjunction with another lawsuit pending against the city in which the owner of Pepe’s Towing, Manny Acosta, contends the city has unlawfully prevented his company from achieving a position on the San Bernardino Police Department’s towing rotation despite his company having met all of the city’s regulations and criteria to be franchised, Smith has made a sworn declaration that he personally witnessed Valdivia accept a bribe.
That affidavit states: “In either October or November of 2018, I was asked by Mayor John Valdivia to accompany him to a meeting. The mayor informed me it was a secret meeting, and it would occur at approximately 1 a.m. at the Denny’s restaurant located on or near Hospitality Lane in San Bernardino. I met Mayor Valdivia at the Denny’s between midnight and 1 a.m. We proceeded to enter the restaurant and the mayor requested a private booth away from any other customers. Once we were seated, we were soon joined by Danny Alcarez, who I knew to be the owner of Danny’s 24 Hour Towing, Inc. Danny’s Towing is a tow carrier with a tow services agreement with the City of San Bernardino.  After Mr. Alcarez sat down in our booth, he handed Mayor Valdivia a thick white envelope that appeared to contain a large amount of money. Mr. Alcarez told Mayor Valdivia that this money was from the tow carriers with existing tow services agreements with the City of San Bernardino, and that the money was intended to thank the mayor for all his help in supporting the existing tow carriers. I do not believe that this money was ever reported by Mayor Valdivia as a campaign contribution.”
Efforts by the Sentinel to obtain input from Rice relating to the limitations being placed on the Valdivia investigation were unsuccessful. An email sent to him for that purpose, which was electronically carbon copied to Carvalho, Ballinger, Campos, Duran and Deitsch elicited no response.
San Bernardino City Councilman Henry Nickel told the Sentinel, “Many of us realized in the aftermath of the 2018 election the voters created an environment once again rife with dysfunction. There were a lot of people who had concerns. In the days following the election, my phone was burning up from many concerned about the direction we were headed. Many of us believed that at some point John would likely self-detonate and that this would take a toll on the city when he did. Some of us felt it was thus best to reach that point as soon as possible rather than delay the inevitable. I hoped it might happen sooner rather than later. I hoped we would be at this point around this time last year. However, due in significant part to the election of three new council members, there were certain people who supported him and others who felt it best to delay the likely outcome or simply resist his efforts who didn’t perhaps understand that at some point we would get to where we are today. Unfortunately, this situation is likely to cost the city a lot of money. Many voters within long neglected wards of the city didn’t understand who and what they were voting for in 2018, but they certainly understand now. You can’t tell people how to vote, but if they elect lemons you best learn quickly how to make lemonade. I’m not saying Carey Davis [Valdivia’s predecessor as mayor, whom Valdivia defeated in the 2018 election] was the greatest mayor the city ever had, but we appear far more unstable under the current mayor. I am hopeful we will be a better, more civil and wiser city once this is resolved. We have come so far over the past six years already. The voters alone hold the key to whether or not this city survives and prospers. I believe we will.”


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