By Mark Gutglueck
The repeated, exaggerated and progressively more monstrous portrayals of Mayor John Valdivia as a victimizer are a gross perversion of the truth, one that is depriving the City of San Bernardino of what is perhaps its last hope of achieving recovery rather than slipping into bankruptcy for the second time in a decade and from which the once-grand county seat will likely see itself disincorporated, the mayor’s lawyer this week told the Sentinel.
Valdivia, who was first elected to the city council representing the Third Ward in 2011, in 2018 successfully challenged incumbent Mayor Carey Davis. Valdivia, upon acceding to the position of mayor in December 2018, appeared to have transitioned into the central political personage in the city, and indeed for the next year headed the ruling coalition on the council which consisted, at least initially, of First Ward Councilman Ted Sanchez, Second Ward Councilwoman Sandra Ibarra, Fifth Ward Councilman Henry Nickel, Sixth Ward Councilwoman Bessine Richard and, after he was elected to replace Valdivia in the Third Ward council position in a specially-held election in May 2019, Juan Figueroa. The only consistent opposition Valdivia faced during his first year as mayor was that offered by Fourth Ward Councilman Fred Shorett and Seventh Ward Councilman Jim Mulvihill, who did not possess sufficient political muscle with their two votes to resist the agenda that Valdivia was pursuing.
Early this year, however, Valdivia’s platform of political primacy was yanked out from under him when two of the six staff members at City Hall assigned exclusively to the mayor’s office, senior customer service representative Mirna Cisneros, 30, and Karen Cervantes, 24, who was Valdivia’s mayoral assistant, simultaneously and abruptly resigned on January 29. Their dual departures from the city were followed with their public statements, offered at a press conference held in front of City Hall, as to why they felt leaving the city’s employ was necessary. Cisneros and Cervantes had retained attorney Tristan Pelayes, a former San Bernardino County sheriff’s deputy and one-time mayor of Adelanto who is now a principal in the law firm of Pelayes & Yu, to represent them prior to their resignations. While they were working for the city in roles that were directly answerable to Valdivia, they said, the mayor had subjected them to unwanted sexual advances, innuendo and crude remarks, sought to press them into compromising circumstances, insisted that they perform tasks outside their job assignments, and either sought to involve them in or acknowledged to them his skirting of the law pertaining to the use of public funds as well as his violation of the reporting requirements imposed on public officials relating to the reception of donations, money or services. Cisneros said that Valdivia had pressured her to work on political campaigns while she was serving in her capacity as a city employee, and that the mayor suggested that she should use the vacation time she had accrued to work on the now-concluded campaigns of two of the candidates in this year’s city council races Valdivia had endorsed, Juan Figueroa and Bessine Richard. According to Cisneros, Valdivia accepted gratuities from individuals with business before the city that verged on or crossed the line into bribetaking.
On February 27 at another press conference called before San Bernardino City Hall, Pelayes announced that four others, including a city commissioner and three other employees of the mayor’s office had been mistreated by Valdivia. Three of those, Jackie Aboud, a 23-year-old part-time field representative for Valdivia, Don Smith, a 25-year-old part-time legislative aid and field representative, and Alissa Payne, 36, who in October 2019 was nominated by Valdivia and then appointed to both the Arts and Historical Preservation Commission and the San Bernardino Parks, Recreation and Community Services Commission, were featured at the press conference. The fourth individual who was not identified or in attendance at the February 27 press conference, was Valdivia’s chief of staff, Matt Brown.
Aboud, who had worked as a field representative for Valdivia from April 2019 until she was fired on January 6, said she had been provided with no training and was subjected to a circumstance which suggested that she was not hired for legitimate work in serving as a liaison between Valdivia and his constituents but rather as Valdivia’s courtesan. “He told me I needed to spend time with him after hours and invest in a friendship with him if I wanted to reach my career goals,” Aboud said. “He also told me that my job was not to serve the community but to serve him and meet his personal needs.”
According to Aboud, Valdivia was self-centered and abrasive, and his ego-driven ambition prevented him from being of service to his constituents. She said the mayor slighted the city’s residents in the Fourth and Seventh Ward because they were represented by his two rivals on the council, Shorett and Mulvihill. Valdivia was vindictive and mean, Aboud said, taking recourse in threatening her with termination, belittling her in front of others and constant bullying.
Smith, in his capacity as Valdivia’s legislative aid and field representative, claimed that Valdivia ordered him to work extra hours while not paying him overtime, and dangling before him promises of promotion that never manifested. He claimed Valdivia had employed him to engage in running personal errands that had nothing to do with serving the residents of San Bernardino.
Smith said, “He [Valdivia] routinely threatened my job as a means to bully me” and “told me my job was on the line if I didn’t do what he wanted. Even though I was not on call, he would call me and tell me to immediately report to work on days/times I wasn’t scheduled. Anytime I questioned him, he again would tell me that I needed to do what I was told because he gave me the opportunity.”
Smith signed an affidavit in which he stated that he had accompanied Valdivia to a 1 a.m. meeting at a restaurant with Danny Alcarez during which Alcarez delivered to Valdivia an envelope stuffed with cash, made in exchange for Valdivia’s assistance in securing for Alcarez and other tow truck business operators placement on the city’s tow service franchise.
Payne stated, “I was subjected to inappropriate conduct and manipulation by the mayor. 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 Valdivia made inappropriate sexist comments, subjected her to unwanted physical touching, and had “invited me to attend a dinner event as his personal guest where he was persistently trying to get me intoxicated, which I declined, and put his arm around me several times, touching my lower back and making me extremely uncomfortable. The mayor was preying on me.”
Payne claimed that “council members were not only aware but enabled his behavior.”
A week after the February 27 press conference Matt Brown was revealed as Pelayes’ sixth client lodging accusations against the mayor. Brown hired on as Valdivia’s chief of staff in August 2019. Brown was less vocal than the other five, but according to Pelayes, Brown had retained his firm after he grew concerned that Valdivia would retaliate against him for having sought to shield Cisneros, Cervantes and Aboud from Valdivia by encouraging them to file grievances over their treatment by Valdivia with the city’s human resources division.
The accusations first leveled by Cisneros and Cervantes and reinforced by Aboud, Smith, Payne and Brown precipitated Valdivia’s decline in authority. Whereas throughout much of 2019 Valdivia was able to consistently rally at least four votes of support for the items that came before the council which he championed, by this spring it became clear that Sanchez, Ibarra and Nickel had defected from the Valdivia camp, and on major issues of import to the mayor, they would join with Shorett and Mulvihill in frustrating Valdivia’s plan of action or intended direction.
Shortly after the accusations against Valdivia by Cisneros and Cervantes surfaced, the city through the firm of Best Best & Krieger, which employs the two lawyers who serve in the capacity of city attorney and deputy city attorney, Thomas Rice and Sonia Carvalho respectively, sought to initiate an investigation of the accusations. There were suggestions, however, that Best Best & Krieger, the employees of which represent Valdivia as do they represent the entirety of the council, were ill-suited to carry out the investigation, so Carvalho arranged to have the law firm of Liebert Cassidy Whitmore oversee the investigation. For reasons that were not clear, however, Liebert Cassidy and Whitmore begged off from having to carry out the investigation directly, as J. Scott Tiedemann, a managing partner with the firm, directed the city to hire Los Angeles-based attorney Carla Barboza to do that work. Barboza, who was to receive $350 per hour, was initially contracted to investigate the Cisneros and Cervantes claims, at a not-to-exceed cost of $50,000. That investigation bogged down, however, when Pelayes asked and then insisted that one of his investigators or his firm’s lawyers be granted access to the interviews with both claimants and witnesses. When the city refused, Pelayes instructed his clients not to submit to the questioning by Barboza. This had the effect of shortcircuiting the investigation, as those with the information most pertinent to the issues being investigated were not interviewed.
In the meantime, in April, the city council considered Valdivia’s request that the city, in addition to conducting what it claimed was an “independent” investigation of Valdivia’s conduct, pay for his legal defense in the face of the claims made against him and whatever findings against him the city’s investigation might turn up. Deputy City Attorney Sonia Carvalho suggested that the council could authorize Valdivia to select an attorney at his own discretion for whose work representing the mayor the city might then defray an initial maximum expenditure of $50,000. In the alternative, Carvalho said, she could select an attorney for Valdivia who would likewise be provided with an initial $50,000 retainer. Carvalho then provided the city council with a list of four attorneys she thought might be suitable for structuring Valdivia’s defense, one being Patrick “Kit” Bobko, who had agreed to work on the mayor’s behalf at a rate of $250 to $330 per hour; Michael Zweiback, who committed to working on the case in conjunction with other members of his firm at a “blended” rate of $400 per hour; Gerald Sauer, who was willing to work the case at a cost of $495 per hour; and Sonya Goodwin, who stood ready to go to bat for Valdivia for $450 per hour. Valdivia, who had been provided with an early preview of the attorneys Carvalho had suggested, communicated with Zweiback directly, informing him that he was intent on having Zweiback’s firm represent him, as was indicated in an engagement letter sent to him at his city office from the firm of Zweiback, Fiset & Coleman dated March 11, 2020.
When the city council on April 15 considered the request that the city pay for Valdivia’s legal representation, councilmembers Figueroa and Richard were in favor of having the city defray Valdivia’s defense costs and Councilman Shorett indicated that he would support having Valdivia represented by the city attorney’s office without any outside counsel being paid for. Councilwoman Ibarra wanted the council to outright refuse to have the city pay for Valdivia’s defense. Ultimately however, a motion to table, that is suspend, a decision on having the city pay for Valdivia’s legal defense was made by Councilman Nickel, which was passed with the support of councilmen Sanchez, Shorett, Nickel and Mulvihill.
In May, after some three months of investigation, Barboza had yet to provide any written report to the city that had been passed along to the council, but was requesting another $30,000 to complete the investigation. Having nothing by which to gauge the process of the investigation, the city council declined to authorize the payment of the requested $30,000. By June, however, at which point both Aboud and Smith had officially filed claims against the city and were thus signaling their intent to file lawsuits, the city council signed off on paying Barboza another $18,000 to move forward with her investigation.
Reports and insinuations from all quarters pertaining to Valdivia have in recent weeks and months intensified to include accusations that he has been taking bribes and payoffs relating to a number of issues pertaining to business licensing, project approvals and franchise contracts before the city. Moreover, there are suggestions that Valdivia is raging out of control with regard to his personal comportment, exacerbated by his descent into alcoholism and illicit drug use.
Since the city council’s non-action in April which denied Valdivia legal indemnification, a legal fund on Valdivia’s behalf has been set up, into which reportedly some $45,000 had been collected by the end of June, said to have come from sources that have likewise contributed to his political campaigns in the past.
Valdivia used that money to retain not Zweiback and Zweiback’s firm as had been his previous intent, but rather Rod Pacheco.
The choice of Pacheco as his legal representative is a rather apt one in Valdivia’s case on several score.
Like Valdivia, Pacheco is a Republican, which is a relative rarity among Hispanic politicians in California. A half of a generation before Valdivia, Pacheco made his entry into politics in a rather spectacular fashion. After having acceded to a position of high rank within the Riverside County District Attorney’s Office under then-Riverside County District Attorney Grover Trask, Pacheco in 1996 made a successful run for the California Assembly, becoming the first Latino Republican elected to the Assembly in more than a century. He was elected leader of the Republican caucus, marking the first time in the state’s history that a Hispanic legislator had risen to that position. Because the Republicans surrendered their majority hold on the Assembly in the 1996 election, Pacheco narrowly missed out on becoming the first Hispanic California Assembly speaker. After being termed out of the legislature, he returned to the Riverside County District Attorney’s Office, where in 2006, he was elected district attorney, serving a single four-year term. He is now in private practice.
More than sharing with Valdivia being a Latino Republican politician who cuts across the grain by functioning in an environment wherein most Hispanic politicians are mainstreamed into the Democratic Party, Pacheco spent his formative years in San Bernardino, and is intimately familiar with its institutions, its lay of the land, its residents, its body politic and its movers and shakers. This, perhaps, leaves him uniquely qualified to serve as Valdivia’s advocate.
Pacheco told the Sentinel, “I have read the newspaper accounts and I have gone over the complaints very closely and I would say the majority of this, I would say 95 percent of the allegations, certainly a lot of them, are what the city’s own investigator, Ms. Barboza, said were ‘bad boss allegations,’ and when she said that she laughed. I would concur with that conclusion. What the people who are complaining are saying is that they were told to do their jobs and made to work hard.”
According to Pacheco, “The one employee who at the beginning started this [Cisneros] and inspired the rest of the allegations said it came down to ‘He [Valdivia] expected me to work hard.’ That’s the overwhelming majority of the accusations. Of course he expected the people who worked for him and for the city to work hard.”
Pacheco said the sexual harassment accusations do not hold up.
“I don’t know why the rest of the accusations are being made, but of course, those are the statements that really stirred things up,” Pacheco said. “He [Mayor Valdivia] commented on her [Cisneros’s] shoes and asked if they were Jimmy Choo shoes, which are very expensive and are famous for being fashionable with women. I didn’t know that myself, but had to ask my wife. Apparently, Mayor Valdivia is ahead of the rest of us men there. So he asked her about her shoes and, oh my gosh, he was sexually harassing her. Well, that is not sexual harassment, neither factually nor legally. When I was with the district attorney’s office, I handled sexual assault cases. I was a founding member of the Riverside County District Attorney’s Office Sexual Assault Team. I know that area of the law. I know what sexual assault looks like. I know what sexual harassment looks like, and these allegations do not encompass anything close to that.”
Mayor Valdivia is being pilloried for intrepidly going where most politicians would shy away from, taking on a political assignment that is fraught with risk, Pacheco said. Pacheco pointed out that San Bernardino is in what many people consider to be a municipal death spiral. In 2012, the city filed for Chapter Nine bankruptcy protection, emerging from that status in 2017. Things remain touch and go in the 218,000 population city, as it is being dogged by deficit spending that is rapidly eating up the reserves it managed to salt away during the 2012-to-2017 period while it was under the umbrella of bankruptcy protection.
“I grew up in San Bernardino,” Pacheco said. “I was raised there. I moved there when I was six. My father was in the Air Force and he was stationed at Norton Air Force Base. I went to college in San Diego, but I remained very close to San Bernardino. It was a wonderful city. It was called ‘A City On The Move.’ There was a lot going on in San Bernardino. It was the first city to have two malls. It was, then, a much better city than the one I live in now, Riverside. Now, they’ve flipped. That great city of my childhood has gone into the tank. It is very different now. Now you have a mayor, John Valdivia, who like former Mayor Valles is trying to save it.”
Judith Valles was San Bernardino Mayor from 1998 until 2006.
“Mayor Valles made efforts and had what I would call modest gains,” said Pacheco. “But the city has fallen into an abyss, and it is not a regular effort that is going to fix things. You are not going to turn things around working nine to five. It is going to require a Herculean effort. This is not the time for half measures any more. Public safety has become a real problem. For years, San Bernardino was the murder capital of California. San Bernardino has a lot of problems and this mayor is ready to make a lot of extra effort. As mayor, John Valdivia has the desire to put forth that effort. He is a Type A person who wants to run the city right and he is demanding that people who work for him or work in the city do what they are being asked to do. That is the only way that things are going to be turned around. The hardest hit cities are the poorest cities. Rich people can sustain it or walk away and start over. The poor have the greatest difficulty, and San Bernardino is filled with the poor. It is really unfortunate that the one person in the city working hardest to make a change is now being subjected to this. The city has really fallen apart and these people who have filed the complaints about having to work hard shouldn’t be working for the city. They should go get a job where they can take it easy. What John Valdivia has taken on is a massive amount of work.”
The reports that Valdivia is on the take and receiving bribes and kickbacks do not hold up, Pacheco said.
“I am familiar with those false allegations,” Pacheco said. “They are abjectly false. Don Smith signed an affidavit. Don Smith doesn’t provide any evidence, and I am not familiar with any other evidence to that effect.”
The demonization of John Valdivia at the local level is a reflection of the contentious nature of political discourse at the national level, in which all elements along the political spectrum are engaged in a scorched earth strategy of leveling anyone or anything seen as being out of step with one faction’s or the other’s immediate goal of taking absolute control of the office or the position of power being vied over, Pacheco said.
“What is of concern to me is there is a mob mentality not just in San Bernardino but in the United States that is feasting on people,” Pacheco said. “It has nothing to do with underlying philosophy or politics. You will see it happen to people, no matter what side they are on politically. It is a mob mentality. You have members of the city council – some, not all of them – who have been very aggressive in attacking the mayor. I’m not sure what their motivation is. Maybe they think that this will make them look better in comparison to him. It may be political or it may be personal, but they are publicly stoking the flames based on falsehoods, saying the mayor should resign, trying to drive him out of office. It is ugliness. It is unfortunate. The city must be saved, and they are going after the one person who is committed to saving the city. I have watched the city’s leadership since I was a kid. The one other mayor that was trying hard was Mayor Valles. And now the city has John Valdivia. They have not had true leadership in the city for a long, long time. Mayor [Robert] Holcomb presided over the glory days. When he left the city began to deteriorate slowly but surely over time.”
Pacheco said, “In San Bernardino, public safety is in a shambles. You have severe underemployment. Sixty percent of the people are on unemployment or are receiving public assistance. The city is falling apart. It is not just on the west side anymore, like it was when I was a kid, but everywhere.”
Pacheco continued, “What is going on is the city council members are grabbing a hold of a false claim and running their mouths, saying, ‘Well, the mayor needs to resign.’ How dare they? Why don’t they do their jobs for the people in the city?”
Pacheco dismissed accusations that Valdivia has a problem with alcohol and with other intoxicants, and is an illicit drug user.
“That is laughable,” Pacheco said. “It is weird. I can I read in the claims where he went here and then we went there. He mention shoes. It’s ‘One time, he mentioned my shoes.’ They say that is sexual harassment. They say they were somewhere and that he had a drink, so that means he was obviously intoxicated.”
The goal is to discredit the mayor using innuendo and suggestion, none of which is steeped in fact or evidence, Pacheco said. Valdivia’s accusers are making a case against him because that is their way to riches, he said. “They are trying to drive the city to pay them off,” Pacheco said. “What was their motive in having a sequence of press conferences? Why not just have one press conference where they have their say? Why did they have four? Why were people who were not even government employees taking part?”
Pacheco took issue with Payne, who changed her story, he said.
“She was at the first press conference and the San Bernardino Sun talked to her. She was quoted as saying ‘I’m here to be supportive of the person in the press conference, even though I have never been harassed myself.’ A month later, she filed a claim saying she had been sexually harassed. How is that credible? There could not be a greater contradiction. Some people will do anything for money.”
Those gunning for Valdivia have ulterior motives, Pacheco said.
“They are trying to drive him out of office,” Pacheco said. “I was hired to make sure he was treated fairly. There have been efforts to hamstring him from the beginning. He tried to hire an attorney, and the city wouldn’t hire an attorney for him. They have not done anything to investigate this. Mr. Pelayes has not let them interview anyone who filed the claims. The only one interviewed was Don Smith. Mr. Pelayes previously denied them access to him and would not allow him to be interviewed, but he was a city employee and the city told him he had to cooperate, and then Mr. Pelayes gave in and had him interviewed.”
Pacheco pointed out that the city is paying Barboza $350 an hour to serve as an investigator and paying J. Scott Tiedemann of Liebert Cassidy and Whitmore $600 an hour to oversee what is going on when no real investigation is possible.
“The city keeps throwing money at this,” Pacheco said. “The city should spend its time and money elsewhere. The accusers don’t want to be cooperative. If they want to sue the city and mayor, they will have to go to court and I can cross examine people and find out if what is in the complaint is true. This does not resemble a court proceeding in the least. I don’t get to cross examine people. I can’t put anyone on the stand. If I were the city, I would say to Mr. Pelayes, ‘If someone wants to interview your client, you are supposed to allow inquiries to be made. That is called discovery.’ He refuses absolutely for the people who are making these accusations to be questioned. There is a fundamental issue of fairness there. Mr. Tiedemann hired an investigator named Barboza. We asked Tiedemann in writing for the documents he has. He has refused. He said this is just an interim report that is going to go to the city council, which means it is a public document. We have a right to the interviews they have before we go down the road. This is unfair and it is designed to be an ambush.”
The city has no substance to hang its hat on when it comes to knowing what is true and what is false with regard to the accusations made by Pelayes’s clients, Pacheco said.
“They have no one to interview, but Tiedemann and Barboza got extra money from the council. I don’t know why they did that. You’d have to ask them. This is an investigation that does not have to be done. Why do you need more money? That money would be better spent on parks or job training. They need to revive the city and its economy, like the mayor is trying to do. I go to courthouses all over Southern California. In Santa Ana, in San Diego, in Riverside, I have to park four blocks away. In Los Angeles, I have to park in a parking lot eight blocks away and it costs me $40. The San Bernardino Courthouse is the only courthouse I can park right in front of. There is no business there. Nothing is going on around the courthouse. It is sad. The only one trying to do anything about that is Mayor Valdivia, and they are trying to run him out of office. The others say they are working on it and that they have the same good intent. This isn’t about intent. It is about results. San Bernardino is a mess. The city needs to be saved.”
The matter has been playing out for too long, Pacheco said. “We’re now moving toward eight months after this first came up,” he said. “These claims were made in January. During that time, Mr. Pelayes said you are not interviewing my client. The city has no one to interview.”
Pacheco said, “John Valdivia is the mayor of a city that has huge problems. When I was a younger man, before I was district attorney but was with the prosecutor’s office, I was trying murder cases, death penalty cases. That is serious work. It is hard work. You can’t do an average amount of work when you are working a death penalty case. You can’t come in at nine and leave at five. Not everybody is up to that. A lot of prosecutors never try a death penalty case. They can try misdemeanors. They can try some felonies. But a murder case is different. It is the same in working for a city. Some cities, like San Bernardino, are a challenge. And in those cities there are people who just should not be there. They may not be up to it. They may not be willing to do the work for other reasons. People were asked to work by the mayor and they couldn’t do it. And he gave them a hard time about it. This isn’t Beverly Hills or Pasadena or Santa Barbara. This is San Bernardino.”
By Mark Gutglueck