Short Of Acknowledging Conflict Put CDBG Funds At Risk, Rialto Mayor Abstains

After a month of intransigence on a legal issue that was putting more than $1.2 million of federal money intended for community improvements coming to the City of Rialto this year in jeopardy and entailing the further risk of the city being forced to return hundreds of thousands of dollars it had received in the past and passed through to a nonprofit organization headed by her daughter, Rialto Mayor Deborah Robertson Tuesday night relented and recused herself from voting on the acceptance and distribution of Community Development Block Grants provided to the city by the United States Department of Housing and Urban Development.
Mayor Robertson violated the federal regulations pertaining to the provision and use of the Department of Housing and Urban Development’s Community Development Block Grant Funds, according to the Los Angeles-based law firm of Manatt Phelps & Phillips, which was tasked to look into the controversy after city officials late last year took stock of the implication of Robertson having voted to provide a nonprofit corporation headed by her daughter over $200,000 in block grants entrusted by the federal government to the Rialto City Council for distribution over the last eight years.
Robertson, who has been mayor of the 103,440 population city since 2012 and is due to stand for reelection later this year, dug her heels in earlier this spring after questions emerged this past winter about her past votes as a member of the city council to approve Community Development Block Grant awards to the Bethune Center/Inland Empire National Council of Negro Women, of which she is herself a member and past president and which her daughter is currently the president. It was Robertson’s contention that since neither she nor her daughter were deriving any income from the nonprofit organization which provides services for at-risk youth and low-income to moderate-income families, that she did not have a financial conflict of interest which would preclude her from voting with regard to how the federal grants were to be distributed, even if the Bethune Center/Inland Empire National Council of Negro Women was one of the recipients of that money.
Former Rialto City Attorney Fred Galante, after learning that Robertson’s daughter, Milele Robertson, had been for nearly four years the president of the Bethune Center, which in addition to being a Community Development Block Grant recipient has also been extended rent free accommodations at a city-owned building, advised Robertson that she should refrain from voting on the awarding of the grant money to the organization her daughter heads. That advice was repeated by the interim city attorney, Eric Vail, who succeeded Galante, as well as a special counsel, Randall Keen of the law firm Manatt, Phelps & Phillips, who was brought in by the city to advise it with regard to the thorny issue that grew out of the city’s provision of or passing through of public funds to an entity with a relationship to one of its elected decision-makers.
Mayor Robertson, however, obdurately refused to adhere to that advice, leading to a standoff in which the remaining members of the council, fearing reprisals from the Department of Housing and Urban Development that would potentially include the federal government withdrawing all of its grant money from Rialto, cautiously delayed and then again postponed voting on the distribution of this year’s allotment of Community Development Block Grants, which included money earmarked for the Bethune Center. It was only after the council and city staff, exasperated at the mayor’s unwillingness to abstain, considered excising the Bethune Center from the list of grant money recipients and councilmen Ed Scott and Joe Baca, Jr. poignantly importuned her to step aside that Robertson agreed to forego voting on the matter.
On September 24, 2019, the Rialto City Council voted to retain the Riverside-based accounting firm of Teaman, Ramirez and Smith, Inc. to perform certain “independent auditing services” to augment Rialto’s “2018-19 Audit and Comprehensive Annual Financial Report.” According to the letter of engagement for that assignment, the areas of review to be covered by Teaman, Ramirez and Smith, Inc. were issues relating to the city’s provision of post employment benefits and pensions to former employees and the impact those are having on the city’s financial situation, budgetary comparison schedules, the city’s financial statements, the combining of the city’s financial statements, municipal financial statistics and the “schedule of expenditures of federal awards.” In a side letter relating to that contract, it was stated, “An agreed upon procedures engagement is not designed to detect instances of fraud or noncompliance with laws or regulations; however, we will communicate to you any known and suspected fraud and noncompliance with laws or regulations affecting the city’s appropriations limit documents that come to our attention.”
Indeed, that is precisely what occurred.
Among the reams of financial documents Teaman, Ramirez and Smith, Inc. auditors pored over were those relating to grant funding received by the city, of which in the 2018-19 fiscal year, $38,475 in federal Community Development Block Grants was doled out at the discretion of the Rialto City Council to the Bethune Center-National Council of Negro Women.
Community Development Block Grants are a U.S. Department of Housing and Urban Development program in which federal money is provided to local communities, primarily cities, which can then utilize those funds as their political leadership deems fit insofar as they are applied toward the goals of providing affordable housing, anti-poverty programs, and infrastructure development. Community Development Block Grants are subject to less federal oversight than categorical grants. They are dispensed to projects and programs conducted locally at the direction of local authorities, which in the case of a city, is the city council. They are nevertheless subject to the provisions of federal law.
Milele Robertson, Mayor Robertson’s daughter, is the president of the Bethune Center-National Council of Negro Women, which offers what is described as job training services. Though the Bethune Center-National Council of Negro Women was formerly identified as being headquartered at 649 E. Foothill Boulevard in Rialto, it has been operating out of a city-owned building at 141 S. Riverside Avenue in Rialto for at least four years, having done so free of charge for that entire time.
Teaman, Ramirez and Smith, Inc.’s accountants delineated the federal grant funding received by the Bethune Center-National Council of Negro Women, and traced out the blood relationship between Deborah Robertson and Milele Robertson. In its draft finding, which upon further refinement was incorporated into the 2018-19 Audit and Comprehensive Annual Financial Report, Teaman, Ramirez and Smith, Inc. referenced a member of the city council who had participated in providing the Community Development Block Grant funding to the Bethune Center-National Council of Negro Women without directly identifying the mayor, though the reference, by inference, was clear. “The member of the city’s governing body did not properly disclose or report the family relationship nor abstain from the selection and award of the agreement,” according to the language in Teaman, Ramirez and Smith’s finding.
After the report Teaman, Ramirez and Smith, Inc. had generated to augment Rialto’s 2018-19 Audit and Comprehensive Annual Financial Report was assimilated by city administrators, in particular Finance Director Jessica Brown, further examination of the circumstance revealed that since 2012, the year that Robertson became mayor, the Bethune Center-National Council of Negro Women had received over $200,000 in Community Development Block Grants distributed by the Rialto City Council.
On January 22, the city council adopted a resolution with little comment amending the city’s previous conflict of interest code.
On February 11, at its regularly-scheduled city council meeting, the council added to the nine items it was scheduled to discuss in closed session prior to the public portion of the meeting three items that needed to be gone over in the executive conference outside the scrutiny of the public, on one of which City Attorney Fred Galante intimated the mayor would need to abstain. After the council’s closed session discussions were concluded, Galante reported that the council had upon a 4-to-0 vote authorized City Manager Rod Foster to retain Manatt Phelps & Phillips to review and analyze any potential conflict issues as pertain to the mayor. The motion also contained a provision that Foster reassign the responsibility for the administration of the city’s Community Development Block Grants, California Proposition 47 funding and Homeless Emergency Aid Program grants to the deputy city manager and finance director in conjunction with the police department, removing those programs’ oversight from Community Services Director Perry Brents.
For nearly four months, as Manatt Phelps & Phillips looked into the matter, Galante and then his successor, Eric Vail, urged that the council exercise caution by having Robertson not take part in any discussion or voting with regard to the apportioning of the Community Development Block Grants, particularly if the Bethune Center was to be considered as a recipient or deemed a recipient. Earlier this month, a team of Manatt Phelps & Phillips attorneys, led by Randall Keen, generated a report on the matter.
According to Manatt Phelps & Phillips, Robertson’s past action with regard to the vectoring of Community Development Block Grant money to her daughter’s organization and her insistence that she is entitled to continue her involvement in that process put the city at risk of the Department of Housing and Urban Development withholding Community Development Block Grants from Rialto in the future or that an aggrieved citizen will bring a successful legal challenge that will impose on the city the hardship of having to rescind past actions, and refund the money it had received from the federal government, leading to incalculable complications for City Hall. What Robertson had done in the past and was threatening to continue to do, Manatt Phelps & Phillips said in its report dated June 9, is very likely a violation of California’s common law conflict of interest doctrine as well as a violation of the City of Rialto’s conflict of interest ordinance.
The report stated, “In our opinion, the mayor’s participation in awarding or administering CDBG [Community Development Block Grant] funds to IE NCNW [Inland Empire Section National Council of Negro Women, Inc.] violates CDBG conflict of interest regulations. This is due to several factors – first, that her daughter is president of the organization; second, that the mayor herself is a member of the organization, and third, that the CDBG funding appears to constitute almost 50% of the organization’s total funding in the most recent filing. While it does not appear that either the mayor or her daughter have a financial interest in the grant, a published HUD [Housing and Urban Development] decision interpreting a similar regulation confirms that the HUD regulation is not limited to financial interests. The mayor’s interest and her daughter’s interest in the continuing success of the IE NCNW is sufficient to set up that conflict. The mayor’s previous actions could be deemed inadvertent by HUD, and HUD could consider as a mitigating factor that, as she has stated, she was unaware of and had not been advised about the regulation. However, there is also substantial risk that HUD could impose a variety of penalties on the city and/or on the mayor. If the mayor continues to refuse to recuse herself, this could weigh against any mitigating factors that HUD might consider.”
Prior to delivering its June 9 report, Manatt Phelps & Phillips, in the person of Keen, had in closed session conferences with the city council told officials the city should take steps to prevent Robertson from voting on any pass-through of grant money or any funds whatsoever to the Inland Empire Section National Council of Negro Women. In the June 9 report, the law firm stated, “We continue to strongly recommend that the mayor recuse herself from participation in any discussion or votes regarding allocation of funding to or agreements with IE NCNW. We further recommend that the mayor refrain from participating in the administration of any contracts or agreements with IE NCNW.”
The report stated, “It seems unlikely that the mayor will recuse herself, based upon communications from the mayor’s counsel. If the mayor refuses to recuse herself, we continue to recommend that the city council not approve CDBG funding for IE NCNW unless and until guidance has been received from HUD [the Department of Housing and Urban Development] and the common law issue has been addressed.”
Sometime after Teaman, Ramirez and Smith, Inc.’s uncovering of the issues pertaining to the pass-through of CDBG money to the Inland Empire Section National Council of Negro Women and the resultant suggestions that the circumstances presented a potential conflict for Robertson such that she should desist from participating in any action relating to the Inland Empire Section National Council of Negro Women, Robertson conferred with her personal attorney, Allison R. Bracy of the law firm Collins, Collins, Muir and Stewart. Based upon reinforcement provided to her by Bracy, Robertson asserted that no actual conflict exists in the circumstance involving her daughter and the Bethune Center/ Inland Empire Section National Council of Negro Women.
At both its May 12 and May 26 meetings, the city council was set to vote on the distribution of $1,295,942 in Community Development Block Grants, consisting of the $1,214,285 the federal government has allotted to the city this year and $81,657 in funds unspent from 2019-2020.
Staff recommended that the block grants be utilized for public service activities, capital improvements and toward the administration costs of carrying out the public service and capital improvements.
Within the category of public service activities, city staff has earmarked for Big Brothers/Big Sisters of the Inland Empire’s school-based mentoring program $12,225; the City of Rialto’s senior services division $48,500; the City of Rialto Police Department’s PRIDE Platoon Boot Camp $35,000; Rialto Family Health Services’ veterans affairs assistance program $20,000; $21,000 for the Legal Aid Society of San Bernardino to provide legal assistance to Rialto residents; $40,417 for the National Council of Negro Women/Bethune Center to fund its young adults academic and pre-employment skills program; and $5,000 for the Rialto Child Assistance League’s child assistance program.
Staff’s recommendations for the capital activities in Rialto to be funded in 2020-21 using CDBG money are a $428,120 repayment of a Section 108 loan; earmarking for tenant improvements at the community center building $439,275; and a modest $3,548 for the city’s mobile home repair program.
To bankroll administration activities related to the Community Development Block Program program in 2020-21, city staff is calling for the city council to ratify spending $213,796 to cover staff time devoted to the program and funding the Inland Fair Housing and Mediation Board’s fair housing program with an infusion of $29,061.
In addition, the city is set to accept from the federal government $714,324 in CDBG-CV, funds, money specifically earmarked by the federal government to cover municipal costs for dealing with the coronavirus pandemic.
For the money to actually be applied to those purposes, the council must hold a hearing at which potentially adjusting those allotments is considered, a concurrence on the final amounts to be utilized is reached by the council and a majority vote on the provision of the funds is attained.
Though the finalized Manatt Phelps & Phillips report had yet to be delivered last month, Keen had given his recommendation that Robertson steer clear of voting with regard to the provision of money to the Bethune Center/Inland Empire Section National Council of Negro Women. Robertson, however, spurned that advice.
The city council, which was anxious to proceed with the ratification of the CDBG spending at both of its May meetings, found itself stymied by the mayor’s contention that she is eligible to participate in the votes. Hoping to resolve the issue, the council at its May 12 meeting postponed its vote on the matter. On May 26, however, the mayor was no less intransigent than previously. Though the council had hoped Robertson would relent and simply step aside and either not vote at all with regard to the CDBG distribution or permit the vote relating to the funding for the National Council of Negro Women/Bethune Center to be separated from the vote with regard to the remaining allotments so that she would not participate directly in approving it, she refused, insisting no conflict exists.
“I’m not recusing myself because I think that it is not right or equitable to penalize someone by leaving them out of something,” she asserted. “It’s just not due process, so I am going to sit here and I will oversee and preside. I will not recuse myself.”
In the defense that Bracy has constructed for Robertson, the central consideration is that there is no money for either Robertson or her daughter directly at stake in the vote. According to Bracy in an email she sent to Manatt Phelps & Phillips on June 3, she contacted a representative of the Housing and Urban Development Department, who indicated to her that “the facts presented did not trigger a conflict of interest but [the representative] wanted to confirm with [Housing and Urban Development’s] legal [counsel].”
Bracy told Manatt Phelps & Phillis she “reached out to the local HUD representative who then contacted the HUD legal department. They hope to advise before the next council meeting as to whether the facts presented trigger the conflict of interest provisions under 2 CFR [Code of Federal Regulations] 200.318 and more specifically under the CBDG conflict regulation found at 24 CFR 570.611.”
According to Manatt Phelps & Philips, its inquiry turned up information to support Robertson’s and Bracy’s contention that Robertson and her daughter have no financial interest in the National Council of Negro Women/Bethune Center.
The Manatt Phelps & Phillips report stated, “according to news reports, Milele Robertson is employed by CalTrans in a management position.” The report says Marlene Davis, the executive director of the National Council of Negro Women/Bethune Center since 2016, “stated in a telephone interview that Milele Robertson has not received any compensation from the organization. The organization’s Forms 990 for fiscal years 2011, 2012 and 2014 reflect that previous presidents (and other officers, including Milele Robertson) were not paid. The organization’s Forms 990 available on the IRS website for tax years 2016 (the year Milele Robertson became president) and 2017 are incomplete, and do not reflect the names of the organization’s officers and directors, or what, if any, compensation those persons received.” Further, according to the report, “Milele Robertson stated that the position of president is not paid.”
On April 6, when Manatt, Phelps & Phillips requested an interview with Mayor Robertson, Robertson said she would not speak with Keen or anyone from his firm. Subsequently, Bracy contacted Keen and Manatt, Phelps & Phillips and, after initially stating the mayor would make herself available for an interview, then requested that the questions be submitted in writing. In her responses to the questions and responses to follow-up questions, Robertson provided her answers through Bracy. Neither Keen nor anyone at Manatt, Phelps & Phillips was afforded the opportunity to directly question Robertson. In her written responses, Mayor Robertson said she has been a member of Inland Empire Section National Council of Negro Women since 1988, and that she served as an unpaid vice president and president in the late 1990s and early 2000s. She said she is presently a “Legacy Life” member. Robertson further stated that she has no financial interest in Inland Empire Section National Council of Negro Women and has no financial relationship with anyone paid by Inland Empire Section National Council of Negro Women. In her written responses, Robertson said she was not “specifically” aware of the Community Development Block Grant conflict of interest regulation, but she understands conflict of interest standards “based on my years in public service and my long career working for the State.” Robertson did not, she wrote, receive any training or advice regarding the Community Development Block Grant conflict of interest regulation prior to the votes to approve CDBG funding allocations.
The report states, “Based on the facts as we understand them, it does not appear that the mayor or her daughter have a financial interest in any award of CDBG funds to IE NCNW, as neither person receives compensation from the organization. However, both the mayor’s daughter and the mayor likely have an ‘other interest in or a tangible personal benefit’ from an award to IE NCNW.”
The report states that “In fact, it seems difficult to argue that the president, including an unpaid president, of a nonprofit organization would not have any ‘tangible personal benefit’ form a funding agreement that apparently provides 50% of the organization’s annual funding. Any president of a nonprofit organization would seemingly receive a tangible personal benefit by obtaining this level of annual funding for the organization.”
The report continues, “This analysis extends directly to the mayor herself. In addition to the fact that the mayor’s ‘immediate family member’ is the president of the organization, the mayor herself is a long-term member of the organization. Any member of a nonprofit organization who is able to to secure funding for the organization that equals 50% of the organization’s annual funding would seemingly receive a ‘tangible personal benefit’ form funding agreements with that organization.”
The Manatt, Phelps & Phillips report cited a Housing and Urban Development decision involving what it said was “a very similar HUD conflict of interest regulation applicable to funding for a drug treatment program.” The Matter of Rodriguez resulted in the HUD Board of Contract Appeals finding there was “an actual conflict of interest,” the report said, “where Rodriguez, the contracting officer, had an unpaid leadership role with a nonprofit contract awardee.” In that case Abraham Rodriguez was the executive director of the Public Housing Authority of the City of Laredo. In his capacity as public housing authority chairman, Rodriguez participated in the housing authority entering into an agreement with a local nonprofit, Jobs for Progress of Southwest Texas, as an outside contractor to run some Housing and Urban Development programs for the benefit of Laredo Housing Authority residents, which was funded by Housing and Urban Development’s Public Housing Drug Elimination Program. Rodriguez was also the unpaid board chairman of Jobs for Progress of Southwest Texas.
Rodriguez ran afoul of a conflict of interest regulation similar in relevant respects to the one regulatiing CDBG funding, the Manatt, Phelps & Phillips report states. The report quoted that regulation: “No employee, officer or agent of the grantee or subgrantee shall participate in selection, or in the award or administration of a contract supported by federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: (i) The employee, officer, or agent of an … (iv) organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award.”
The principle in the Rodriguez case applies to Robertson in the matter involving the Inland Empire Section National Council of Negro Women, Manatt, Phelps & Phillips asserted.
“The situation in Rodriguez is very similar to the present one, where a contracting officer or official has dual loyalty to the public decision-making body and to the organization contracting to provide a service,” the report stated. “While in Rodriguez, it was the contracting officer himself who had the role with the nonprofit, as opposed to a family member, Milele Robertson’s role with the IE NCNW is imputed to the mayor, as an immediate family member, under the clear language of 2 CFR § 200.318. Here the mayor’s daughter has a leadership role with IE NCNW. The mayor herself is a member.” The report then borrows from the decision language in the Rodriguez case to apply it to the Robertson matter, stating, “Even though neither person stands to gain financially from the CDBG funding, their interest in ‘the continuing success of [IE NCNW] is sufficient to set up that conflict.’ ‘The public cannot feel comfortable with such a close relationship, even if there is no personal enrichment.’”
The report stated that if the Department of Housing and Urban Development comes after the city because of the conflict of interest involving the mayor and her daughter, the city might ask for special consideration by asserting that Robertson violated the conflict of interest code unknowingly, because she was previously insufficiently familiar with and not specifically aware of the regulations. Now that the matter has become a very public one in which the conflict has been pointed out to her, the report states, “The mayor’s recent refusal to recuse herself arguably cuts against any mitigation.”
Robertson has run afoul of California’s common law conflict of interest restriction and Rialto’s conflict of interest ordinance, the report maintained.
“California courts recognize a common law doctrine against conflicts of interest,” the report states. “The doctrine ‘strictly requires public officers (and employees) to avoid placing themselves in a position in which personal interest may come into conflict with their duty to the public.”
The report quotes the City of Rialto’s conflict of interest ordinance, which reads: “No officer or employee of the city shall have any financial interest in the transaction of business in connection with the purchase of goods and services for the city. No officer or employee of the city may contract with any person related to an officer or employee of the city by blood or marriage within the third degree for supplies, services or equipment, unless the purchase is by written competitive bid and the person related submits the lowest responsible bid. No officer or employee shall participate in the procurement or selection process when such officer or employee has a relationship with a person or business entity seeking a contract under this chapter which would subject such officer or employee to the prohibition of California Government Code Section 87100 or Government Code Section 1090.”
Conceding that neither the first nor third sentence of the ordinance applies to Robertson’s case, the report stated that, “With respect to the second sentence, the mayor is undoubtedly a city ‘officer.’ As a city officer, she may not ‘contract’ in the specified circumstances. The ordinance does not define what ‘to contract’ means, but it would be more than reasonable to conclude that with respect to city officers, it includes discussion, votes on agreements, and signing agreements on behalf of the city – all of which the mayor has done with respect to the IE NCNW agreements.”
Robertson and her attorney were tempting fate by insisting that she can vote with impunity on the pass-through of Community Development Block Grant money to the nonprofit her daughter heads, Manatt, Phelps & Phillips asserted.
“The mayor’s counsel has submitted ‘public comments’ to the city council in which she has argued that the CDBG regulation only applies to financial interest because California law only addresses financial conflicts of interest,” the report stated. “This is clearly wrong. The regulation itself does not say this. There are no HUD or court decisions to support this argument.”
In its conclusion, the Manatt, Phelps & Phillips report stated, “Mayor Robertson likely has a conflict of interest with regard to funding decisions for the IE NCNW under a combination of federal, state and local laws and regulations. Because we have not identified any evidence that the mayor has a financial interest in her daughter, Milele Robertson, or that Milele Robertson is a source of income to Mayor Robertson, the mayor likely does not have a conflict under California’s strict statutory conflict of interest provisions. However, she does have an actual or apparent common law conflict of interest. In addition, we believe her involvement in the approval, execution, and oversight of the agreements related to federal CDBG and state Proposition 47 funds is a violation of relevant federal and state conflict of interest statutes and regulations governing those programs. Finally, the mayor’s participation arguably violates the City of Rialto’s conflict of interest ordinance. We therefore recommend that the mayor recuse herself from all discussion and votes related to the IE NCNW and/or Bethune Center.”
When the city council convened on Tuesday, June 9, Robertson repeatedly made assertions that she had no intention of recusing herself.
Eric Vail, Rialto’s interim city attorney, said that during that portion of the city council’s closed session prior to the meeting from which Robertson was excluded, “The council decided to release the [Manatt, Phelps & Phillips] report publicly and provided the mayor a copy of the report. The council decided to pursue further guidance from HUD with regard to potential conflict, has decided to pursue further guidance form the California Attorney General with regard to the potential conflict, and special counsel has recommended that the mayor recuse herself form any action having to do with NCNW or Bethune. We understand on the advice of mayor’s counsel she will not be recusing herself on those items, and special counsel recommends in that event that the council not take any action with regard to any grant of money or otherwise with regard to NCNW or Bethune.”
Thereafter, Robertson said, “I will not recuse myself from it. Council can continue to do whatever they want to do, but I will not recuse myself from it.”
Robertson leveled criticism at Manatt, Phelps & Phillips, conveying that the law firm was misapplying or misinterpreting the law in an effort to curtail her function as mayor. She suggested that the only basis for determining a conflict of interest existed would involve her having made a vote to enrich herself, which she said she had not done.
“I think the recommendations are kind of amazing that I’ve seen so far,” she said. “The items that were presented [by her attorney] for special counsel to look at, I think it has been clearly stated, and maybe I’m misstating it, that there was no financial interest that was determined.”
An impromptu debate of sorts between Keen and the mayor ensued which included a discussion of the distinction between common law and statutory law.
Keen propounded, “Federal regulation is not limited to just financial interest. It covers financial and other interests.” Keen said California conflict of interest law had been codified into statutory law, including two sections “that regulate financial interest and a common law which regulates other interests.”
Robertson suggested that under federal law, an exception had been carved out for nonprofits. “Doesn’t it address nonprofit organizations and exceptions within?” she asked. “Isn’t there some section within the federal law that speaks clearly to that nonprofit relationships are exempt?”
“Madam Mayor, we did not find anything like that,” Keen responded. “Your counsel sent us several things she wanted us to look at, and none of them were applicable to this situation.”
Robertson suggested that Keen and Manatt, Phelps & Phillips predicating its finding of a conflict on common law was legally dubious. She suggested that the only law that could be applied to her situation was statutory law, and that once an area of the law was covered by a statute, the common law that preceded it was no longer applicable.
Keen responded, saying, “The legislature can abrogate common law by enacting statutes, and with the common law conflict of interest, they did enact two statutes with respect to financial interests but they did not abrogate the common law with respect to other interests, and it still remains in effect.”
At that point, Robertson asserted that there was no strictly defined precedent in case law to establish her matter was yet subject to common law, since the only defined law within California’s statutes pertaining to conflicts of interest hinged on a financial conflict of interest. She indicated she was willing to roll the dice by having the California Attorney General’s Office or a court consider the matter.
She said that they “might as well take it all the way to the state, because I think some people will disagree.”
Keen then suggested that if Robertson was going to insist on voting with regard to apportioning the Community Development Block Grants, that the allotment for Bethune be removed from the motion “so that we preserve the fact that you don’t violate the conflict of interest regulation.”
Councilman Ed Scott endeavored to persuade Robertson to gracefully stand down from participating in the action, saying, “I’m ready to move forward with this tonight, and I’m ready to award all this money that is earmarked here, including Bethune, but there’s an issue with a potential conflict, and I’d like to plead with you to please recuse yourself so we can move forward and attempt to get a vote to approve all of these dollars and then let’s get an opinion from HUD, the Attorney General, whoever we need to get an opinion from, whether there’s actually a conflict or not, and if there’s not, we’re great, and if there is, then we’ll restructure our system so as not to compromise you or us. I’m asking you tonight to please recuse yourself. I know that Bethune does a great job. I know they need this money. I’ve always supported Bethune. I think this whole council has. I’m asking you to recuse yourself and let us move forward with this item in its entirety.”
Thereafter, Robertson yet expressed dismay over the city council and city staff having forced the issue by retaining Manatt, Phelps & Phillips to delve into the conflict issue. “We jumped to getting special counsel to investigate something before we even did the administrative process,” she said. “That is why I’m sitting here refusing to recuse, unless people are treated equally.” She seemed to suggest that she was concerned that the Bethune Center was going to be penalized by the council and the city because of the circumstance connecting her and her daughter to that organization. “There has been given a real negative opinion of presence or feeling to the community that they’ve done something wrong when they have complied every year,” she said. By her remarks she conveyed that she wanted to make sure that the Bethune Center received the funding recommended by staff.
She further expressed bitterness at the investigation targeting her and what it implied. “It has been an amazing Gestapo-type of investigation to the point that this special counsel finally comes up at this date with a common law,” she said. “I’d like to let you [explain], the four council [members] who started this, who chose to go to closed session without even giving me the courtesy of explaining what was of concern before you leaped to go get special counsel, which is not a mere small line expenditure. I’ll recuse and I’ll let you guys legislate.” She said that first, however, “I want to know why we put certain things into this report that has nothing to do with the general business of the allocation and disbursement of the Community Development Block Grant dollars.”
After Robertson expressed her displeasure at what the council had done to her by subjecting her and the city to the investigation by Manatt, Phelps & Phillips, Councilman Joe Baca, Jr., without dwelling on the circumstance that had necessitated the investigation, instead sought to fence mend, and used the suggestion that the council without Robertson voting would approve the full range of grant allotments as recommended by city staff, including the funding for the Inland Empire Section of the National Council of Negro Women, as an inducement to get Robertson to abstain from the vote.
Baca said he was in support of the city providing the pass-through funding to sustain the Bethune Center, and he suggested that if she did not recuse herself, the city would risk losing CDBG funding all the way around.
“Madam Mayor, I too plead to you if you could just recuse, I’m in full support of it,” Baca said. “I just don’t want to jeopardize them. If we hoard it [hang onto the Community Development Block Grant money without spending it], at some time it gets taken away.”
Immediately after Baca spoke, Robertson said, “Then I will agree to recuse myself, and I will turn the gavel over to the mayor pro tem. I will not cast a vote one way or another.”
From that point on, Councilman Ed Scott, in his role as mayor pro tem, chaired the hearing with regard to the Community Development Block Grant funding apportionment. After members of the public present who wanted to address the council spoke, recorded phone messages from residents relating to the funding were played aloud and City Clerk Barbara McGee read into the record letters and emails from city residents pertaining to the issue. Scott, Baca, Councilman Rafael Trujillo and Councilman Andy Carrizales then voted unanimously to approve the distribution of the Community Development Block Grant money as recommended by city staff and the city’s consultants on the matter, Frank Perez and Rudy Muñoz. That apportionment included the $40,417 for the National Council of Negro Women/Bethune Center to fund its young adults academic and pre-employment skills program.
-Mark Gutglueck

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