By Mark Gutglueck
Ruben Duran, the city attorney in Adelanto when the self-serving profit-taking and graft engaged in by a group of elected officials exploiting that city’s transition to a marijuana-based economy hit its zenith, has been hired as Ontario’s city attorney.
Duran has remained with Best Best & Krieger, LLP, even in the aftermath of his and the law firm’s 13-month association with the City of Adelanto which brought him and his firm, which has been in existence for 129 years and specializes largely in representing municipal entities, under the microscope of the FBI and the U.S. Department of Justice. In the months prior to Duran’s resignation as Adelanto city attorney, federal law enforcement agencies were focusing on the degree to which Duran was enabling two members of the city council, who were personally profiting by the liberalization of the city’s marijuana regulations. During Duran’s Adelanto tenure, a third member of the council was arrested by the FBI and indicted for taking bribes from applicants for cannabis-related businesses in exchange for facilitating their licensing and protecting them from regulatory or code enforcement activity once they were up and running.
Despite large numbers of the Adelanto populace having come to recognize that the core of Adelanto’s political leadership was on the take, Duran, true to his own personal professional philosophy and that of his law firm that a city attorney serves his municipality’s elected leadership, remained loyal to the city council throughout and even after his time as Adelanto city attorney.
Duran’s hiring as Ontario city attorney came this week, some 14 months after the Ontario council had seemingly ended its relationship with the Best Best & Krieger law firm. For close to three decades, John Brown, a partner in the firm, had served as Ontario’s city attorney. In June 2019, however, Councilmen Alan Wapner, Jim Bowman and Ruben Valencia moved to terminate Brown’s contract. Wapner, Bowman and Valencia then opted to bring in the law firm of Cole Huber, LLP, which is based in the Northern California city of Roseville but has an office in Ontario, to serve as city attorney.
After 14 months, however, with Scott Huber serving throughout that time as city attorney, the city council on Tuesday, August 4, jettisoned Cole Huber as the firm offering it legal counsel, and approved reentering into a contract with Best Best & Krieger for legal services. While Brown remains a partner with the firm, it is now Duran who will hold the title of Ontario city attorney. Duran with Richard Egger, another Best Best & Krieger attorney, on a number of occasions in 2019 and 2018 filled in for Brown as deputy city attorneys.
Duran is a partner with the firm. In addition to working out of Best Best & Krieger’s Ontario office much of the time, Duran lives in Ontario. In September 2019, Duran replaced Jeffrey Ballinger as Fontana city attorney. He also currently serves as the legal counsel for the Yucaipa-Calimesa Joint Unified School District. Duran was city attorney in Desert Hot Springs from 2006 to 2013.
Duran is a controversial figure in legal and municipal circles, primarily as a consequence of the time he served as city attorney in Adelanto.
In the November 2014 Adelanto municipal election, Rich Kerr, John Woodard and Charles Glasper supplanted, respectively, then-Mayor Cari Thomas, and councilmen Steve Baisden and Charles Valvo.
Kerr and Woodard, as well as Jermaine Wright, who had been elected to the city council in 2012 and would be reelected in 2016, in short order formulated a plan that they said would help the city overcome its financial challenges. In 2013, the city had declared a fiscal emergency, a step preparatory to a declaration of bankruptcy. The troika, taking stock of the reality that throughout San Bernardino County the county government and each of the 24 municipalities within it with the exception of Needles had historically been hostile to the commercial availability of medical marijuana despite the passage in 1996 of the Compassionate Use of Marijuana Act that made pharmaceutical marijuana legally available to those who had a doctor’s prescription for it, saw an opportunity. They would, they resolved, change the city’s codes to make the herb available in the city. In this way, they said, they would seek to transform Adelanto into the marijuana capital of California. In so doing, they maintained, they would rejuvenate the local economy and create a taxing mechanism that would fill the city’s coffers.
Though they had sufficient votes among them to prevail on the matter, Kerr, Woodard and Wright did not want to proceed on a bare 3-to-2 majority, given the sharp turn in direction they were proposing. Councilman Ed Camargo was dead set against allowing any sort of cannabis activity in Adelanto, commercial, medical or otherwise. So, too, was Glasper, an Air Force veteran. Glasper, who had previously served on the city council, at that time was showing vague signs of the dementia that over the next few years would rob him of many of his mental faculties. But at that time he was yet a forceful personality. Kerr, Wright and Woodard lured Glasper into supporting their plan by representing to him that their plan extended only to the cultivation of the plants, and that the product would be sold to dispensaries elsewhere in the Golden State, and that no dispensaries in Adelanto would be permitted, such that the drug would not be sold within the city limits. Glasper went along with the concept. Kerr, Wright, Glasper and Woodard signaled to longtime city manager Jim Hart that he should begin the revamping of the city code to allow the cultivation of marijuana within indoor greenhouses located in the city’s industrial park.
Hart had misgivings about the direction the city was headed in, and just three months into Kerr’s and Woodard’s tenure on the council, in February 2015, he resigned, effective the following month. The council moved to replace him with City Engineer/Public Works Director Tom Thornton, believing he would be amenable to facilitating the designs of the majority of the council for the city. Thornton tried to work with his political masters, but he too was less than enthusiastic about the whole thing. When Kerr, Woodard and Wright began to pressure him to sack Senior Management Analyst Mike Borja, Conservation Specialist Belen Cordero and Public Works Superintendent Nan Moore, whom the council troika considered obstructionists, Thornton had a crisis of conscience, and he moved back into the position of public works director. The city council thereafter moved to replace him with Cindy Herrera, who had been with the city for 26 years, 16 of them as city clerk.
Ultimately, Borja and Nan Moore were unceremoniously fired.
In compliance with what Kerr, Glasper, Woodard and Wright were demanding, then-City Attorney Todd Litfin structured the city code to allow for the indoor cultivation of marijuana within the city’s industrial park district, and then, full of misgivings about what he had just done, resigned immediately after the council in November 2015 passed those code changes into law. Litfin was replaced by Julia Sylva, who gamely sought to facilitate the city’s foray into the largely uncharted territory of making legitimized marijuana production a key element of a community’s economic foundation. Sylva burned out rapidly, leaving in April 2016 as a prodigious number of applicants flooded into City Hall, resulting in the city granting permits to no fewer than 25 cannabis growing operations in five months. Sylva was replaced as city attorney by Curtis Wright, of the law firm Silver & Wright LLP.
Simultaneously, the city hired Jessie Flores as its contract economic development director. Flores’ assignment was to encourage businesses to set up operations in Adelanto. His contract allowed him to concurrently find employment with any other entities, including any of those businesses he was seeking to interest in locating in Adelanto. This created, either inadvertently or purposefully, a potential laundering mechanism for kickbacks. Flores was authorized by the city to negotiate with any or all of the entities wishing to get into the lucrative cannabis cultivation business and offer them incentives to locate in Adelanto. At the same time, those businesses were free to “hire” Flores and pay him a fee for his services. It was soon widely reported that what was actually happening was Flores was making arrangements with the applicants for marijuana cultivation businesses to provide them with certain advantages as their quest for permits and licensing proceeded, which were then facilitated when those companies retained Flores’ services as a consultant. Reportedly, Flores was then sharing the money he received from those applicants with Kerr, Woodard and Wright, who then either voted to approve those applications or directed the city manager to facilitate their further processing.
As 2016 progressed, the statewide initiative Proposition 64, the Adult Use of Marijuana Act, qualified for the November ballot. If it passed, which it ultimately did, Californians over the age of 21 would be free to use marijuana not simply for its therapeutic effect but as an intoxicant as well. Anticipating Proposition 64’s passage, Kerr, Woodard and Wright dispensed with the ruse they had used to induce Glasper to support them in 2015, dropping any further pretense of being against the commercial sale of marijuana in Adelanto. They began the active planning of allowing both dispensaries and pot shops into the city, inside and outside of the city’s industrial zone. They further began preparations to welcome manufacturing businesses, ones that refined and converted the plants into various cannabinoids and other chemical substances, including THC – tetrahydrocannabinol – the active psychotropic ingredient in marijuana, for use as palliatives and liniments. By that point, Glasper’s dementia had advanced, and Kerr, Woodard and Wright manipulated him at will, obtaining his cooperation in virtually every action they were taking. Would-be marijuana entrepreneurs with dollar signs in their eyes filed into Adelanto City Hall, some with briefcases full of cash, money that was forked over as payoffs to ensure that the projects they were proposing would gain approval or that the property they were purchasing would be granted zoning for use as a commercially-related business where marijuana sales could take place.
Perceiving that contract City Engineer Wilson So, Assistant City Engineer Aaron Mower, Senior Planner Mark De Manincor and Conservation Specialist Belen Cordero were dragging their feet on making way for ever more cannabis-based operations in the city, Kerr had them fired or forced them into resigning.
In January 2017, Herrera, increasingly concerned about Flores’ activity in conveying the payoffs to the council members, used the opportunity provided her when Kerr was injured in a motorcycle mishap to suspend Flores. Upon recovering and returning to City Hall, Kerr moved to get rid of Herrera, who tendered her resignation as city manager, going without a fight, in return for which, she was allowed to move back into her former position as city clerk.
Kerr then arranged to bring Mike Milhiser in as city manager. Milhiser, who had previously served as city manager in Montclair, Ontario and Upland, was more than a decade into his retirement, and he accepted the temporary assignment in Adelanto. As a caretaker city manager, Milhiser was oblivious to the graft that preceded his tenure as city manager and turned a continuing blind eye to it over the next several months as its manifestations became apparent. Shortly after Milhiser was installed, Flores was reinstated by Kerr into the contract economic development post at even higher pay than he was previously receiving, and the kickback arrangements continued as before.
By late spring 2017, what was transpiring had grown to be too much for Curtis Wright, and he resigned as city attorney. It was at that point, at the recommendation of Milhiser, that Duran was hired as city attorney. If Duran did not know what he was getting into when he signed on as city attorney, he soon found out. Graft was everywhere. At the city council meetings, in front of Man, God and everyone else, including Duran, applicants would come into the council meeting chambers with envelopes full of cash which they would then provide to Misty Kerr, Kerr’s wife, intended for her “charity.”
As a retiree, Milhiser under California’s public employees retirement system was permitted to work only 960 hours per year for a public agency. As July was heading into August 2017, Milhiser had to depart as Adelanto city manager. The council replaced him with Gabriel Elliott, the city’s development services director. Kerr and Woodard confidently predicted when his hiring was officially announced in September that they believed Elliott was an ideal fit as Adelanto city manager.
From the outset, the plan to load the city’s industrial park district with indoor marijuana nurseries and cultivation warehouses suffered a crucial shortcoming. The utilities to service the existing industrial operations that were already located in the district were barely adequate. Water and electricity was in short supply, and the infrastructure and electrical generating facilities to supply them were non-existent. Because the city’s regulations called for the marijuana plantations to be located entirely indoors and fully enclosed, using sunlight as the light source to induce the growth of the plants – as occurs in nature – was out of the question. Similarly, Adelanto, located within the Mojave Desert where water is in short supply, was subject to the adjudication of water rights that had occurred in the 1990s as a consequence of a lawsuit filed against all of the Mojave River’s upstream users by the City of Barstow. To redress the limited availability of electricity and water in Adelanto’s industrial park district was going to require an investment of tens of millions upon tens of millions of dollars, considerable planning and engineering and time. Thus, prospective marijuana growers were caught in a frenzy not only to get business permits and state licensing but to secure properties where there was either existing available power and water or where those services could be readily obtained.
Though Elliott’s tenure as city manager began amidst an atmosphere of confidence that he would be able to work cooperatively with Kerr, Woodard Wright and Glasper to facilitate the marijuanification of Adelanto on a rapid pace that would result in a substantial economic turnaround, very early on in his time as city manager Elliott encountered an issue that virtually instantaneously poisoned his relationship with Kerr and his compadres.
On September 28, 2017, Kerr and Flores came to City Hall and asked Elliott to accompany them to the city’s corporation yard located in the city’s industrial area to meet with C.B. Nanda, a marijuana cultivator who had applied for a permit for his company, American Scientific Consultants, to grow marijuana in Adelanto the previous year. Nanda had been experiencing difficulty, however, finding a property that had the requisite water and electrical utilities that would allow a marijuana cultivation operation to flourish.
Nanda was intent on purchasing the city’s public works yard, located at 17451 Raccoon Avenue, Kerr and Flores told Elliott. The public works yard property included two two-story metal buildings on the property. Given the range of activity at the yard, the facilities there had been augmented with electrical and water utilities and infrastructure to support a cornucopia of city operations. It was spelled out that Nanda already had a deal in the works to sell or lease portions of the property at significant profit to a group of other marijuana cultivators. Kerr offered assurances that the arrangement was going to be a safe and lucrative one from the standpoint of everyone involved in that the ultimate sale of the property was to be to an agent of U.S. Congressman Dana Rohrabacher, who would in exchange for the sale provide protection to Adelanto from any federal raids of the marijuana cultivation and consumption industry within Adelanto. Flores on the spot offered Elliott a sales agreement conveying the property to Nanda, which he asked Elliott to sign. Elliott, feeling he was being stampeded, stalled for time, saying he would look into it.
Look into the proposed sale Elliott did. Located within one of the buildings was the city’s emergency operations center, which had been constructed on the site and outfitted through a $375,000 grant from the U.S. Department of Homeland Security the city received expressly for that purpose in 2011. In addition, the buildings and surrounding facilities housed the city’s public works department, its motor pool, its maintenance divisions, indeed the entirely of the city’s physical operations that needed augmentation in terms of equipment functionality, mechanical service support, storage, repair and other applications. Conservatively speaking, the city had invested well over $3 million in establishing the structures and facilities on the property, which in any case could not have been replicated for less than $4 million in 2017 dollars, Elliott calculated. That calculation did not include the value of the 1.5-acre property itself. The amount of money Nanda was offering to make the purchase and which Kerr and Flores were insisting the property be sold for – $1 million – was way under market, Elliott recognized.
Several days later, when Kerr came into the office and demanded that Elliott proceed at once with the sale, Elliott informed the mayor that in good conscience he could not allow the sale to go forward. This sent Kerr into orbit, as he insisted the sale had to be made and not for a penny more than the $1 million Nanda was willing to pay. There were further exchanges between Kerr and Elliott, including escalating demands from Kerr, many of them in rather profane terms. Ultimately, in his inimitable fashion, Kerr gave Elliott to understand that he and Flores were to receive financial kickbacks from the sale of the property, and that this was to be a good deal for everyone involved.
Even with Kerr offering to cut him in on the deal, Elliott refused to budge, at which point the honeymoon between Elliott and the council troika of Kerr, Woodard and Wright came to an abrupt end. Simultaneously, Kerr, Woodard and Wright in private were ordering Elliott to have the city’s code enforcement division “stand down” in its enforcement of the city’s codes and regulations, including restrictions that prevented those businesses from operating before a host of inspections and plan check milestones were reached and signed off on. Additionally, Kerr, Woodard, Wright and Flores were pressuring Elliott to fire several city employees they considered to be obstructionist with regard to the city’s accelerated march toward permitting as many cannabis-related businesses as possible to set up operations in the city.
On October 27, 2017, Elliott made the first of two sojourns to the office of the FBI to make a report of Kerr and Flores’ illicit deal regarding the city’s public works yard and other violations of the law engaged in by city officials. According to Elliott, Duran accompanied him to one of those meetings with the FBI. Elliott disclosed to the FBI that Kerr was provided with a $200,000 bribe for arranging the sale of the city’s public works yard and that a means of obtaining bribes from marijuana-related business permit applicants that Kerr used was through those applicants so-called “donations” to what was represented as Kerr’s wife’s non-profit 501c charity, which, in fact, Elliott reported, never attained non-profit status. Kerr would often solicit these donations from individuals and businesses who were doing business with the city, causing these individuals and businesses to feel “forced” to donate in order to have Kerr “get things done” in the city, Elliott said. Moreover, Elliott, related, Kerr used Flores and other city employees to collect some of the money for him. At one point, Elliott told the FBI, Kerr had received a $30,000 bribe through the city’s then-public works director, Don Woppler.
In November 2017, the FBI moved to arrest Councilman Wright after Wright, who had grown envious of the arrangement that Flores had in which he was able to “legally” accept money in the form of consulting fees provided by applicants for marijuana-related business permits in the city, sought to cash in further on the city’s ongoing marijuana bonanza. Wright had engaged in dialogues with an undercover FBI agent who represented himself as an applicant for a permit and license to operate a marijuana distribution facility in Adelanto. In exchange for money, Wright committed to using his authority as a council member to ensure that the city’s code enforcement division would not interfere with the distribution company’s operations. Wright was arrested after he accepted $10,000 from the FBI agent in form of 200 marked $50 bills that were laid before the councilman during his last encounter with the undercover agent.
While Wright’s arrest momentarily shocked the sensibility of the Adelanto community, it did not seem to give Kerr, Woodard or Flores pause. They continued with their efforts to push the aggressive marijuana-related business development in the city, and the effort to personally profiteer from it.
Duran, as city attorney, acted curiously in the aftermath of the Wright arrest and Elliott’s revelation to the council that he was in contact with the FBI. In at least one regard, that pertaining to the sale of the city’s public works yard, the full details of which had been brought to the attention of the FBI by Elliott, Duran seemed to act forthrightly and support Elliott’s position. On November 9, 2017 Duran in his capacity as city attorney wrote to Dimitri Gross, a lawyer representing Nanda’s company, American Scientific Consultants LLC, that the city was terminating the written purchase agreement which Elliott had been effectively blocking by refusing to sign. Duran told Gross that previous statements by city officials and city staff that Nanda and American Scientific Consultants were relying upon to insist that the city had made a binding commitment to enter into the sales agreement were inoperative because those city staff members, who were acting under illegal orders by Kerr that did not reflect a collective vote of the city council, rendered them null and void. An examination of the arrangements for the sale, Duran wrote, had resulted in the city “recently” discovering that the proposed sale was riddled with conflicts of interest. His letter stated those “legal conflicts of interest may call into question the validity and enforceability of the contract,” raising, Duran stated, “serious questions of public policy and whether the public interest may be harmed by the contract.”
Nevertheless, Kerr, Woodard and Flores continued to militate against Elliott, and Duran remained either neutral or in some cases it appeared supportive with regard to the mayor and Councilman Woodard assailing Elliott.
Despite Duran’s letter to Gross, Kerr publicly asserted that the sale of the public works yard was in the city’s best interest because it could use the $1 million in proceeds from the sale to create needed infrastructure. While Kerr and Woodard were no longer able to count upon the support of Wright, who was in federal custody and in January 2018 was removed from the city council in compliance with state law requiring the expulsion of a councilmember who is absent from regular council meetings for more than 60 days, Glasper was falling further and further into a state of dementia, which allowed Kerr and Woodard to manipulate him. Duran, who had explicit knowledge that Elliott was in touch with the FBI with regard to allegations of illegal activity on the part of Kerr, Woodard and Flores, in no fashion countered efforts by Kerr to remove Elliott as city manager. After scheduling several “performance reviews” of the city manager in closed sessions in November and December 2017 which were attended by Duran, the council in December 2017 suspended Elliott as city manager. Thereafter, the council brought Milhiser back to serve as interim city manager.
With Milhiser in place, Kerr and Woodard in the late winter and spring of 2018, pushed ahead, and in conjunction with Flores facilitated the permitting of ever more cannabis-related businesses, continuing to intimidate the city’s code enforcement and development services divisions into allowing the projects to proceed without close regulation or adherence to code. In May, the council hired Brad Letner, a former Army colonel who was at that point serving as the Hesperia Chamber of Commerce’s executive director, to come in as city manager. Simultaneously, the city was moving toward an election to replace Wright, with Kerr and Woodard advocating for the candidacy of Joy Jeannette, a 79-year-old woman heavily supported by the cannabis industry.
That month, the FBI carried out a raid on Kerr’s home and Adelanto City Hall, seeking evidence tying him to to graft relating to the efforts to establish literally hundreds of marijuana-related business operations in the city.
In June, Jeannette outdistanced her two opponents in the special election to replace Wright, thereafter taking her place on the city council as Kerr’s puppet. With the November 2018 election approaching and both Kerr and Woodard conscious that as a result of the controversy enveloping them and the city they might not politically survive, they became ever more frenzied in their efforts to effectuate the establishment of the cannabis industry in the city and complete a series of favors for those who were lining their pockets while they yet had the authority to do so.
Previously, toward the end of December 2017, American Scientific had sued the City of Adelanto for $5 million for reneging on the sale of the public works yard and breaching the written agreement for its sale. Backed with Jeannette’s vote, Kerr and Woodard settled the suit and the council approved the $1 million purchase and sale agreement relating to the city’s public works yard with AMN, LLC , a subsidiary of American Scientific Consultants, in a specially called rare afternoon meeting on July 16, 2018 which was not attended by Camargo, who was virulently opposed to the sale, or the at-that-point non compos mentis Glasper.
Kerr, Woodard and Jeannette then fired Letner and put into his place Flores, whose reliability in carrying out their every command was an absolute given. Thereafter, money was being exchanged freely between cannabis-project applicants and the city’s political leadership, in particular Kerr and Woodard, in return for which business permits were provided or changes to city zoning effectuated to allow those purchasing property within the city outside the cannabis sales zone to instantaneously increase by four-, five-, six-, seven-, eight-, nine- or ten-fold the value of their real estate by its transformation into commercial property where marijuana sales were permitted.
Concerned that Cindy Herrera, who remained as city clerk and was knowledgeable about all elements of municipal operations, was the weak link in the unbridled pay-to-play free-for-all that was ongoing at City Hall, Kerr and Woodard assented to having Flores, who was still sore at Herrera for her January 2017 suspension of him, fire her.
It was shortly thereafter that Duran, taking stock of the atmosphere of utter lawlessness that had pervaded city operations, concluded that the matter had become unacceptable even to him. He tendered his resignation. In doing so, however, he gave no hint that anything was amiss. Saying he found his “thirteen-and-a-half months legal work” as city attorney “intense, sometimes challenging, but always fulfilling,” Duran stated, “I find that I must regretfully tender my resignation as your city attorney, effective as soon as the council is able to secure a new city attorney. Godspeed and good luck.”
Subsequently, both Elliott and Herrera would file suit against the City of Adelanto, including Kerr and Woodard, alleging they had been unjustifiably terminated and subjected to mistreatment, and were punished for whistleblowing. Duran figures prominently in both of those suits. Elliott calls Duran a “tacit co-conspirator in allowing the illegal conduct to occur without protest or resignation.” Herrera is only slightly more charitable to Duran.
In 2018, in reaction to Elliott’s lawsuit, Duran told the Sentinel, “The allegations in the complaint related to my alleged conduct, action or inaction are utterly without merit, completely untrue and outrageous.”
When pressed as to whether he had been present at any of the meetings Elliott had with the FBI where evidence of the bribetaking by Kerr, Woodard, Wright and Flores was provided to the federal agents and whether he had an explicit understanding of what that evidence entailed, Duran deflected the question. “I am bound by the attorney-client privilege not to disclose the details or content of any communications with or on behalf of my client, and I would never discuss any meetings or interactions with federal law enforcement unless authorized to do so,” he said.
In hiring Duran, Ontario is getting an attorney whose philosophy of legal service is indistinguishable from that of his firm. Throughout Southern California, Best Best & Krieger lawyers are recognized for cutting through the debate on whether city attorneys represent the city council or the city’s residents by interpreting the various city councils that they work for as being the political embodiment of the residents who have elected them. In this way, whenever a question arises as to whether a course of action a council majority wants to take is in the true interest of the residents that council represents, Best Best & Krieger lawyers universally hold that through the elective process the council has obtained the status and right to act as if it embodies the entirety of the citizenry, and is thus absolute in its decision-making authority. Duran repeatedly demonstrated this during his tenure as city attorney in Adelanto.
The five members of the Ontario City Council – Mayor Paul Leon, Councilman Alan Wapner, Councilman Jim Bowman, Councilwoman Debra Dorst-Porada and Councilman Ruben Valencia – have the utmost confidence that in any matter in which they become entailed, Duran is going to be loyal to them.
By Mark Gutglueck