SB Settles Suit Brought Against It By Former City Manager

Andrea Travis-Miller, whose tenure as San Bernardino city manager was interrupted and then closed out less than six months following John Valdivia’s ascendancy as mayor, has settled a lawsuit she filed in the aftermath of her firing when the city withheld her severance.
Travis-Miller endured what proved to be two trying stints as the head of the City of San Bernardino’s operations, the first when she was promoted from deputy city manager to acting manager when former City Manager Charles McNeely departed as the city was foundering financially in 2012. Travis-Miller was handed the reins as the city was teetering over a financial abyss, facing a $45.8 million deficit and $180 million in ongoing unfunded liabilities. Working with Jason Simpson, who was then the city’s finance director, Travis-Miller made a review of the city’s financial books, the conclusions of which were so startling that the city council in July 2012 resolved to file for Chapter 9 bankruptcy protection on the basis of a 45-page report from Travis-Miller recommending doing just that. The city did so the following month. Travis-Miller gamely soldiered on as acting city manager, leaving in 2013. Upon doing so, she left on the table a payout she was supposed to receive for accrued vacation time and sick leave owed to her from prior to August 2012, as she was considered one of the city’s creditors under the bankruptcy filing. When the city got around to settling with those pre-bankruptcy creditors, she was cataloged with those deemed eligible to receive one percent of what they were owed – one penny on the dollar.
Upon leaving San Bernardino the first time, she became the executive director of the San Gabriel Valley Council of Governments. In March 2015, she accepted the position of city manager in Covina.
Meanwhile, San Bernardino’s voters in 2016 passed a new municipal charter, replacing the charter that had been in place since 1905. The updated charter dispensed with the strong mayor model of governance that had previously existed and which some believed contributed to the managerial dysfunction that had led to the city’s financial faltering and bankruptcy. In 2016, Travis-Miller was persuaded to return to San Bernardino, where she was installed as the city’s contract assistant city manager under then-City Manager Mark Scott. She was in place in June 2017 when the city made its  exit, after nearly five years, from bankruptcy.
Scott’s tenure as city manager came to a close later that summer when he opted to take on an interim management assignment in Indio, which put him much closer to his home in Rancho Mirage, where his wife was employed.
The council, at that point led by Mayor Carey Davis, turned to Miller to lead the city, hopeful that she would remain in place longer than either Alan Parker or Scott, the two city managers who had overseen the city after her 2013 departure and served an average of two years and two months in the top city administrator assignment. The council, seeking continuity and stability, conferred upon Travis-Miller a five-year contract, providing her a $253,080 annual salary and $93,000 in total benefits. John Valdivia, then a councilman in the city’s Third Ward, wrung from her a commitment to remain as city manager for the full five years and not surrender to the temptation to move on to a more lucrative or prestigious management position elsewhere.
Less than a year-and-a-half later, however, Valdivia had moved up from his council position, vying successfully in 2018 against Davis to defeat him in that November’s mayoral election. Valdivia, who had not supported the 2016 charter reforms and came into office hoping to reassert the mayor’s authority and make himself the prime mover in San Bernardino politics and governance, clashed at once with Travis-Miller as soon as he had the mayoral gavel in his hand.
On December 19, 2018, the day Valdivia was sworn in as mayor along with two new council members with whom he was then allied, Second Ward Councilwoman Sandra Ibarra and First Ward Councilman Ted Sanchez, he undertook to attenuate Travis-Miller’s power as a ploy to reassert his own. That day, at Ibarra’s suggestion, the council undertook to carry out a closed door evaluation of Travis-Miller’s performance. Thereafter, in January, February and March of 2019, the council engaged in closed session reviews of Travis-Miller’s work and accomplishments, compliance with the council’s directives and the general direction of the city under her guidance.
Simultaneously, generally in a fashion that remained below the public radar but which at times loomed into open visibility, Valdivia and Travis-Miller locked horns over what Miller considered to be Valdivia’s efforts to bypass the San Bernardino Municipal Code and the charter by usurping her authority as city manager and giving direction, as mayor, to staff, while assuming administrative responsibility for issues such as city-wide communications, economic development, animal control service options, and police deployment. Miller further effectively blocked a proposal to provide Valdivia’s chief of staff, Bill Essayli, with a 20 percent pay increase.
Travis-Miller further antagonized Valdivia as well as members of the city council when she denied them full access to the city code enforcement database, in particular complainant information, when she received reports which she interpreted as indications that certain complainants were being retaliated against and that some enforcement efforts were being thwarted. When Valdivia proposed opening five police substations as part of a community policing initiative, promoting five department personnel into sergeant positions and two existing sergeants to lieutenant rank in the process, Travis-Miller proved somewhat resistant to the concept, advising the city council of the costs and impacts on staffing, deployment and response times.
Travis-Miller further took issue with Valdivia’s travel plans, including two sojourns to Washington, D.C., three trips to Sacramento, and international travel which included junkets to South Korea, China, and Taiwan, which she maintained exceeded the amount budgeted for such purposes.
When Valdivia sought to interpose himself in the licensing of cannabis-related businesses, Travis-Miller, conscious that the owners of several such operations were heavily invested in Valdivia’s campaign fund, sealed him out of the permitting process.
Throughout that time, there was insufficient support on the council to cashier Travis-Miller. Only Ibarra and Sanchez were willing to entertain her firing, convinced in some measure by Valdivia’s assertions, and those of his chief of staff, Bill Essayli, that Travis-Miller was withholding information from the council and usurping the council’s authority in making decisions that were its purview. Under normal circumstances, the mayor in San Bernardino does not vote, though the holder of the office does have the authority to vote to break ties and to veto any council decision that passed by a 4-to-3 or 3-to-2 margin.
At that point, two of the members of the city council considered to be aligned with Valdivia, Henry Nickel and Bessine Richard, were not prepared to pull the trigger on Travis-Miller. Richard, in particular, was mindful that upon Travis-Miller’s elevation to city manager barely a year-and-a-half previously, the council’s emphasis had been on continuity and stability. She believed Travis-Miller should be given an opportunity to work in just such an atmosphere of stability so the city could move beyond convulsing with the financial punches it was continuously sustaining, and instead proactively take control of its destiny. Gingerly, she sought to broker some modus vivendi between Valdivia and Travis-Miller. Simultaneously, Valdivia had seized upon the manifestation of what was approaching a $7 million shortfall in the city’s revenue over what had been projected for 2018-19, brought on in no little measure by a steep downturn in the city’s gasoline tax receipts. The departure of Finance Director Brent Mason early in 2019 further compromised Travis-Miller’s standing with some members of the city council who interpreted Mason’s departure as a sign that the city under Travis-Miller’s guidance was faltering financially.
Simultaneously, Valdivia was gunning to undo the limitations that had been imposed on the mayor’s office with the passage of the revamped charter in 2016. Part of that strategy was to increase the staff assigned, and directly answerable, to the mayor beyond just his chief of staff to a team of nine. Travis-Miller resisted this, which deepened her enmity with Valdivia.
Essayli and Valdivia proposed and presented an ordinance creating an amendment to the city charter that changed the city code regarding the duties and authority of the city manager, an alteration which was angled toward increasing the administrative reach of the mayor. It was presented to the city council at its March 20, 2019 meeting. The ordinance passed on its first reading that night with the support of council members Richard, Henry Nickel, Ted Sanchez and Sandra Ibarra.
On April 3, 2019, nearly five months after the November election, yet another in what had become a routine ritual of performance reviews was scheduled for Travis-Miller. Some time prior to that that meeting, Travis-Miller had lodged with Valdivia and the city council a complaint about what she said had grown into a hostile work environment created by the mayor’s office, and in the week proceeding that meeting Miller openly complained to different city council members about threatening emails she received from Valdivia and Essayli. The latter development had a profound impact on Councilwoman Richard, who had until that point been working to mollifying the Valdivia camp’s hostility toward the city manager. Presented with a circumstance in which it had become clear to her that there was to be no resolution of the power struggle between the city manager and the mayor with whom she was politically allied, Richard came around and showed herself willing to support Valdivia in getting rid of Travis-Miller. During the April 3 closed executive session of the council, she joined with Ibarra and Sanchez in voting to place the city manager on paid administrative leave, resulting in a 3-to-3 deadlock, with council members Fred Shorett, Jim Mulivhill and Henry Nickel on the other side of the question. That provided Valdivia with the opening he needed, and using his tie-breaking authority, he tipped the scales to suspend Travis-Miller.
A special election to fill the gap that existed on the city council when Valdivia had resigned from his Third Ward council position with yet two years left on his council term to become mayor was scheduled for May 7, 2019. Vying in that head-to-head contest after Anthony Aguirre dropped out were Juan Figueroa, whom Valdivia was backing, and Treasure Oritiz, a one-time city employee who was supportive of both the 2016 charter reform and Travis-Miller. There was wide ranging speculation that Valdivia would move to finalize Travis-Miller’s termination upon a Figueroa victory, and that he would do so by citing cause to avoid having to provide Travis-Miller with the severance package due her under her contract if no cause was provided for dispensing with her services.
Figueroa prevailed in the Third Ward council race, and on May 29, at the first meeting in which Figueroa participated as a voting member, the mayor and council in closed session voted 6-to-2, with Valdivia, Sanchez, Ibarra, Figueroa, Nickel, and Richard prevailing and councilmen Shorett and Mulivhill dissenting, to dismiss Travis-Miller without cause.
Under the terms of her contract, Travis-Miller was to be provided with a 30-day notice of her termination and, upon termination, a severance payout equal to one year’s salary, an amount of $253,080 shown in her original contract along with “benefits then in effect as provided for herein including, but not limited to, vacation, health and life insurance, and CalPERS [California Public Employees Retirement System] retirement service credit accrual for twelve months or through the original term of the contract, whichever is shorter.”
Thus, from the time of her termination, Travis-Miller was due $253,080 plus $106,612.51 in benefits, of which $53,976.62 was a contribution toward her retirement fund. Thus, she was due to receive, under her contract, $305,715.89 to be paid out to her in 12 monthly installments of ‬$25,476.32 over the year-long period following her departure. In addition, the city was to make the $53,976.62 annual contribution to the California Public Employees Retirement System for the last year she worked and another $53,976.62 contribution to the California Public Retirement System for the follow-on year roughly matching 2019-20.
In June, however, the city failed to provide Travis-Miller with the first $25,476.32 installment of her severance pay, fueling speculation it might amend its May 29 action firing her to allege cause. Again in July, the city was delinquent in making the payment. At that point Miller, who is herself an attorney, filed a claim against the city, a prerequisite to the filing of a lawsuit. In August, the city likewise did not come forth with the severance installment due Travis-Miller. The city, however, did nothing to adjust its termination of her as having been carried out for no cited cause. In September, Travis-Miller, represented by attorneys Bradley Gage, Milad Sadr and Terry Goldberg, filed suit against the city.
In that breach-of-contract suit, filed in San Bernardino County Superior Court, Travis-Miller and her attorneys maintained she was retaliated against, subjected to a “hostile” work environment, discriminated against and suffered gender bias. The suit said tension between her and Valdivia and his staff members was at the root of much of the shabby treatment she endured. Reiterating many of the issues she previously highlighted in her July claim against the city, the suit fleshed out further detail with regard to how the city and its leaders failed to take any corrective action or discipline those who were responsible for what she experienced. According to the lawsuit, several of the city’s elected officials knowingly and deliberately violated the city’s revamped charter, particularly with regard to provisions that empowered her as city manager vis-à-vis the mayor.
Travis-Miller was the victim, according to the complaint in large measure authored by Milad Sadr, of “a concerted effort” orchestrated by Valdivia and his minions to marginalize her. Valdivia evinced a shocking degree of chauvinism, according to the suit, including having “questioned why the city had a female city manager or the wisdom of having women in government,” which ultimately had the effect of leaving Travis-Miller isolated from other members of city, excluded from meetings, and shunted aside in such a way that she was “cut off [from] the flow of information or communications intrinsic to her essential job duties.” She was, according to the suit, unjustifiably subjected to “negative performance reviews, reduction in authority, administrative leave and termination. Miller was subjected to unwanted harassing conduct because she is a woman. The harassing conduct from [the] defendants and each of them, was so severe, widespread, or persistent that a reasonable person in the plaintiffs circumstances would have considered the work environment to be hostile or abusive.”
Prior to Travis-Miller’s departure from the city, Valdivia succeeded in adding two staffers to his office. After Travis-Miller’s departure, four more personnel were hired by the city to work directly for the mayor, such that by early this year he had five full-time employees, one part-time employee and one part-time paid intern. Since January, five of those employees – Matt Brown, who succeeded Essayli in the role of Valdivia’s chief of staff in August; Mirna Cisneros, who was a senior customer service representative assigned to Valdivia’s mayoral office; Jacqueline Aboud, who from April 2019 until January 2020 had been serving as the mayor’s field representative; Karen Cervantes, an assistant to the mayor who had begun with his office in September 2019; and Don Smith, who was hired as a part-time mayoral field representative last year after he worked on Valdivia’s 2018 campaign – along with Alissa Payne, a city commissioner nominated to two commissions by Valdivia, have come forward, alleging that Valdivia had subjected them to abusive behavior, sexual harassment, made untoward sexual remarks, innuendos and overtures to them or in their presence and engaged in other improprieties. Cisneros, Cervantes and Smith have filed claims against the city preparatory toward launching lawsuits of their own.
Attorney Irma Rodríguez Moisa of the law firm Atkinson, Andelson, Loya, Ruud & Romo was representing the City of San Bernardino in its defense of Travis-Miller’s suit. As the matter was being litigated and in the shadow of the mayoral scandal precipitated first by Cisneros and Cervantes going public followed by the revelation of Valdivia’s treatment of Brown, Aboud, Smith and Payne, Moisa made a determination that proceeding to trial against Travis-Miller was not advisable.
On Saturday, April 4, a joint press release from the city and Travis-Miller was made. It stated, “On Wednesday, April 1, 2020, the city council approved a settlement agreement with former City Manager Andrea Miller. The City of San Bernardino and former City Manager Miller have reached a settlement of her lawsuit following Ms. Miller’s termination without cause. The city denies liability for Ms. Miller’s claims. The settlement requires the city to pay Ms. Miller $750,000 to resolve all of her claims in exchange for her waiver of all claims and dismissal of all of her claims.”
The statement continues, “This joint statement is being issued to clarify that Ms. Miller was terminated without cause because the city wanted to go in a new direction. During her tenure as city manager, Ms. Miller received strong performance evaluations. Contrary to any previous public statements or published comments, there is no evidence that Ms. Miller ever engaged in any professional improprieties or corrupt behaviors. The city appreciates the assistance that Ms. Miller provided the city and her astute financial guidance in leading the City of San Bernardino out of bankruptcy.”
Of note was that the $750,000 settlement conferred upon Travis-Miller exceeds by $310,854.55 the $439,145.45 that was due her under the terms of her contract, consisting of the $25,476.32 in monthly pay and benefits she would have been provided for the month she would have remained on the city payroll following notification of her termination, the $305,715.89 to be paid out to her in 12 monthly installments of $25,476.32 over the year following her termination, and the two separate $53,976.62 contributions toward her retirement fund for 2018-19 and 2019-20. It has not been made clear whether the $750,000 settlement is in addition to or contains the $107,953.24 contribution the city was to make to the California Public Retirement System for Travis-Miller in 2018-19 and 2019-20.
Travis-Miller, referencing the terms of the agreement prohibiting statements by either side with regard to the settlement beyond the joint press release, declined comment when reached by the Sentinel.
-Mark Gutglueck

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