By Mark Gutglueck
In a remarkable turn of events, the attorney retained by the City of San Bernardino to look into charges of sexual harassment against Mayor John Valdivia found relatively slim evidence to verify those charges, but found more compelling indications that the mayor had engaged in corruption of his function as a public official.
Carla Barboza, a Los Angeles-based attorney, was paid $68,000 to conduct interviews and examine available evidence relating to accusations leveled at Valdivia in a series of claims lodged with the city by former municipal employees within the mayor’s office.
In January 2020, the atmosphere in the San Bernardino Mayor’s Office that had been deteriorating for months devolved into a crisis that resulted in the resignations of Valdivia’s citizens service representative, Mirna Cisneros, and his personal assistant, Karen Cervantes, and the firing of his field representative Jackie Aboud. On February 13, Cisneros and Cervantes, who had retained attorney Tristan Pelayes to represent them, filed claims against the city and Valdivia.
Cisneros, who was hired by the city and was assigned to Valdivia’s office shortly after he became mayor in December 2018, and Cervantes, who was hired as Valdivia’s assistant in September 2019, maintained they were subjected to Valdivia’s sexual harassment and advances, and endured a hostile work environment along with a string of humiliations after rejecting his advances. The claims by both Cisneros and Cervantes use the same language in stating that Valdivia “repeatedly subjected” them “to… offensive and/or graphic sexual comments, and sexually suggestive language and gestures.”
According to Cisneros’s claim, formulated by Pelayes, Valdivia “offered her his credit card and kept telling her to buy whatever she wanted, specifically asking her to buy high heels” and that “He just wants her to feel taken care of. He repeatedly told her nothing is off limits.” Cisneros’s claim further states Valdivia at a September 25, 2019 gala in Los Angeles during the cocktail hour, “continuously made lewd comments about women and kept commenting on claimant’s appearance” and “continuously made comments about a specific woman at the gala. He said that she offered to ‘suck his dick’ in Washington. The following day, September 26, 2019, Valdivia renewed his discussion about the woman from the night before. He said, ‘Did you see the slut from yesterday who was wearing the black outfit showing her back? She is always at events; she is an escort who has offered to suck my dick in the elevator in Washington. She is such a whore. She kept looking at me yesterday. She always tries to contact me. But I don’t want to get my dick sucked by a whore.’”
On November 4, 2019, according to Cisneros’s claim, Valdivia spoke openly to her about an “Assembly member who had [an] affair with his chief of staff,” telling her “that his wife wants a divorce from him. He further told [Cisneros] that if she ever needs anything, to let him know. He said that if he wanted to buy something for her, his wife would not know because she doesn’t see that credit card statement.” During a December 16, 2019 trip Cisneros said she was forced to make to San Jose with Valdivia against her will, according to the claim, “Valdivia stood next to her and told her that she could ask him anything and nothing was off limits.”
According to Karen Cervantes, two weeks after she was hired as Valdivia’s assistant on September 30, 2019, on Saturday October 12, 2019, Valdivia initiated an intensified effort at effectuating a physical relationship with her. That day, Valdivia insisted that Cervantes attend a weekend event, failing to get her to “carpool” there with him, according to the claim. Cervantes said she attended the event despite being told by Valdivia’s chief of staff, Matt Brown, that attending weekend events was not part of her duties in Valdivia’s office. According to Cervantes’ claim, during the event, “Valdivia insisted claimant drink gin and tonics even though she repeatedly told him she did not want to drink. Upon his insistence, claimant became uncomfortable, refused to drink, and left the table momentarily. Valdivia then proceeded to drink his cocktail and also finished the cocktail he had tried to force claimant to drink. Shortly thereafter, Valdivia told claimant he was feeling intoxicated and started moving closer to claimant, invading her personal space. He touched claimant while he whispered in her ear that at events such as this one, he is ‘not so strict,’ and that he is ‘cool.’ He said, ‘This is not like at work and we can have fun.’ The touching was unwanted and offensive.”
According to Cervantes’ claim, as a consequence of Valdivia’s constant advances, “Claimant became increasingly more uncomfortable and became unable to hide that discomfort. It was obvious to her that Valdivia noticed claimant’s discomfort and disapproval. Because claimant refused Valdivia’s advances and despicable behavior, Valdivia began to belittle, bully, degrade, and embarrass claimant in front of her coworkers during staff meetings and other gatherings. This retaliatory behavior continued and escalated throughout the next few months.”
According to Cervantes’ claim, “On various occasions, Valdivia would tell her to do something, then later switch it up and tell her that she didn’t follow his direction. He further sabotaged her work. During staff meetings, in front of her coworkers, he would yell directly at claimant, saying she doesn’t do her job.”
Pelayes said that as their attorney, he guided Cisneros and Cervantes in their efforts during the latter stage of their employment with the city to be moved into positions outside the mayor’s office. When the city demonstrated it was not amenable to placing them elsewhere, they resigned. In short order, it was revealed that Pelayes was representing three other city employees working within the mayor’s office, as well as a city commissioner who, according to Pelayes, had similarly been subjected to abusive treatment by the mayor. Those clients were Jackie Aboud, who had served as Valdivia’s field representative for nearly ten months from April 2019 until he fired her in January 2020, and Alissa Payne, whom Valdivia had nominated to serve on the city’s Arts and Historical Preservation Commission and the San Bernardino Parks, Recreation and Community Services Commission. The others were Don Smith, who had worked on Valdivia’s campaign for mayor and was subsequently hired by the city to serve as Valdivia’s part time field representative, and Matt Brown, Valdivia’s chief of staff who had begun in that capacity in August 2019, roughly a month after Valdivia’s original chief of staff, Bill Essayli, had resigned.
According to Commissioner Payne, Valdivia engaged in unwanted sexually-tinged overtures with her, including inappropriate physical contact. “He went as far as offering to provide me an apartment, would tell me how to vote and what to say or do at the commission meetings, asked me to meet him alone in the evening after hours, and promised – guaranteed – me a seat on the city dais as the Second Ward council member,” Payne said. She recounted that Valdivia “invited me to attend a dinner event as his personal guest where he was persistently trying to get me intoxicated, which I declined. The mayor was preying on me.”
Neither Smith nor Brown were subjected to sexual harassment of the sort visited upon Cisneros, Cervantes, Aboud or Payne, according to Pelayes, though Smith said that during his conversations with the mayor, Valdivia engaged in what Smith said were for him unwanted references to Valdivia’s sexual encounters and complaints about his wife’s unwillingness to accommodate him sexually.
In a claim filed with the City of San Bernardino by Pelayes on behalf of Brown on July 22 of this year, it is related that Valdivia insisted on giving his employees improper assignments that they proved unwilling, after a time, to carry out; that Valdivia’s caddish behavior crossed the line into sexual harassment of Cisneros and Cervantes and Aboud; that after the resignation of Cisneros and Cervantes and the firing of Aboud, when the city was hit by the Cisneros and Cervantes claims, an increasingly desperate Valdivia sought to preemptively destroy the credibility of his former staff members to head off the legal trouble his treatment of them had created.
After the city had brought Carla Barboza in to delve into the accusations against the mayor, Brown’s claim states, Valdivia pressured him and the remaining members of the mayoral staff to cook up falsified charges against Cisneros and Cervantes.
“On or about February 4, 2020 during an early morning telephone call, Valdivia told claimant about his intent to go on the offensive with Cisneros and Cervantes and refute their allegations against him,” Brown’s claim relates. “Valdivia indicated he had spoken with Chris Jones, his spokesman and political consultant, and that Jones had convinced Valdivia he needed to be aggressive in dealing with Cisneros and Cervantes. Valdivia requested that [Valdivia’s office intern Alexander] Cousins, [Mayoral/City Council Secretary Renee] Brizuela and claimant provide him with false written statements refuting the allegations from Cisneros and Cervantes. Claimant was stunned because he knew the allegations to be true since he witnessed them. Additionally, Valdivia requested that claimant write fake work performance evaluations for both employees emphasizing their poor work habits. Claimant refused to participate in the falsification of the said records, [as] he would be required to testify under oath and perjure himself in a deposition, given that Cisneros and Cervantes had already filed their tort claim, which was a precursor of filing a lawsuit against the City of San Bernardino. Claimant, by refusing to engage in the falsification of records, documents, and performance evaluations, had reasonable cause to believe that if he had agreed to engage in these acts, it would result in violations of federal, state, and/or local laws, rules or regulations.”
Brown’s claim states that Brown “told Valdivia that Jones was giving him bad advice and recommended Valdivia discuss these requests with City Attorney Sonia Carvalho. This enraged him. Because claimant refused to provide Valdivia with the fake statements and fake work performance evaluations he had requested, Valdivia began to doubt claimant’s loyalty towards him. On or about February 10, 2020, claimant had a meeting with Valdivia for approximately one hour and 45 minutes. Valdivia attempted to ask a lot of questions about the status of the personnel investigation and claimant declined to provide any details. Valdivia requested claimant speak with Smith and Cousins and ‘coach them’ prior to their interviews with the human resources investigator because he wanted their interviews to reflect positively on him. Claimant refused.”
When Brown told Valdivia he should not be interfering in the investigation, according to the claim, Valdivia retaliated against him and created a hostile work environment.
A common theme in the claims filed by Cisneros, Cervantes and Aboud was that after they had rejected his advances, the mayor repeatedly engaged in denigration and derision of their work and performance.
In the main, the public focus with regard to the complaints initially filed was on the so-called sexual harassment aspect of the allegations, which was reflected in the city’s reaction to the charges against the mayor. Thus, Barboza’s investigation largely pertained to issues falling under the sexual harassment rubric. As the Smith, Aboud and Brown claims were filed after the Cisneros and Cervantes claims, Barboza’s analysis did not extend to the Smith and Brown claims, which did not assert any direct sexual harassment. Released this week was Barboza’s determination with regard to the Cisneros, Cervantes and Aboud claims. The lion’s share of Barboza’s analysis dwells on what the city defines as sexual harassment allegedly perpetrated by Valdivia, which comprises the central gist of the narratives in the Cisneros, Cervantes and Aboud claims.
According to the executive summaries of Barboza’s investigation of the three claims, the one filed by Mirna Cisneros could be reduced to 43 separate and distinct accusations; that filed by Karen Cervantes comprised 44 allegations; and the claim filed by Aboud boiled down to 29 accusations. According to Barboza, she used what she referred to as the “preponderance of the evidence standard,” in making her analysis of all three claims, which she explained as being a conclusion “whether it was more likely than not that the complained-of action or conduct occurred.”
For some, however, the limitations surrounding the investigation were highly problematic, undercutting the integrity of the investigation altogether and bringing Barboza’s conclusions into question. Cisneros, Cervantes and Aboud, advised by Pelayes that the city’s investigation was angling toward a preset conclusion, declined to be interviewed by Barboza. Valdivia likewise refused to be interviewed. In each case, Barboza maintained that she had interviewed 17 witnesses for the Cisneros claim, 17 for the Cervantes claim and 17 for the Aboud claim, which would suggest that she was referencing the same 17 witnesses. Barboza did not identify who those witnesses were. In the executive summary, when referencing a witness, Barboza used a series of Xs, either six capital Xs followed by six capital Xs or five capital Xs followed by five capital Xs, to signify a first and last name or five or six capital Xs to apparently signify a last name. In some cases, the identify of an anonymous witness in Barboza’s summary could be extrapolated by comparing the summary with the claims. In other cases, the witness’s identity could not be easily surmised. Two obvious witnesses were Brown and Mayoral/City Council Secretary Renee] Brizuela. Despite having retained Pelayes to represent him in early March and Pelayes’s advice to Brown against cooperating with the city’s investigation, Brown remained as a city employee until May, and he thus may not have had the option of not submitting to Barboza’s questioning. Similarly, Smith remained employed with the city until sometime in the spring. Whether, however, Brown and Smith were among the 17 witnesses Barboza references is not acknowledged in the executive summary of Barboza’s report. It is possible that the information from Brown and Smith considered by Barboza consisted of the claims they filed with the city.
Barboza was similarly limited in the documentation she was provided. In the executive summaries, she states that the Cisneros, Cervantes and Aboud claims were the only documents available to her containing the specific allegations relating to Valdivia. This would suggest that the city itself withheld from Barboza the reports Cisneros, Cervantes and Aboud filed with Brown, the human resources department, Human Resources Director Helen Chan and City Manager Teri Ledoux prior to Cisneros’s and Cervantes’ voluntary and Aboud’s forced departures from the city in January.
Another professional investigator involved in workforce and workplace evaluations told the Sentinel that Barboza’s willingness to continue with the investigation in the face of her inability to question all of the percipient witnesses to the circumstance being investigated and the city’s withholding of relevant documentation brought her professionalism, competence and integrity, as well as the validity of her conclusions, under question.
According to Barboza, her analysis of the allegations, the available evidence and the statements of witnesses led her to conclude that 20 of Cisneros’s 43 accusations relating to Valdivia and his conduct could be substantiated; that 13 accusations of the 44 allegations in Cervantes claim could be fully substantiated and elements within another of those allegations were verified; and that three of the 29 accusations lodged against the mayor by Aboud could be substantiated.
Of some note was that Barboza was unable to find support, she maintained, that city officials had failed to act in the face of the complaints lodged with various city officials about the mayor’s conduct.
Despite Cisneros, Cervantes and Aboud all maintaining that when they sought from various city employees protection from the treatment they were accorded by Valdivia they were told by the city officials they approached that nothing could be done because Valdivia was an elected official, Barboza found those statements unverifiable, uncorroborated and therefore unsubstantiated.
In Barboza’s findings, Valdivia slipped out from under most, though not all, of the accusations pertaining to sexual harassment in the most direct sense, that is, overt sexually-tinged comments or suggestions. Of Cisneros’s 21 allegations of such patently sexually-based transgressions on the mayor’s part, Barboza found seven substantiated and 14 unsubstantiated. Of Cervantes’ allegations against the mayor, 10 related to direct sexual comments, requests, suggestions or references. Barboza said nine of those were unsubstantiated, finding only one to be, in her parlance, “partially substantiated.” Of the 29 allegations against the mayor in Aboud’s claim, 15 related to him sexually pressuring her. One passage in Aboud’s claim said what she experienced while serving as the mayor’s field representative consisted of Valdivia having “told her that she needed to ‘develop a personal relationship’ with him and that she also needed to spend more time with him ‘outside of work’’ and Valdivia telling Aboud “he would ‘terminate’ her if she did not develop this ‘personal relationship’ with him.” Aboud’s claim also stated that “Valdivia’s intention for compelling claimant to develop a personal relationship with him was to date claimant and advance Valdivia’s sexual desires on claimant.” Barboza found all 15 of those sexually-based allegations unsubstantiated.
Despite Barboza’s determination that most of the accusations relating to sexual harassment by the mayor could not be substantiated, she sustained as verifiable numerous accounts, particularly ones emanating from Cisneros, that Valdivia had engaged in improprieties with regard to taking money, gifts and favors from questionable sources in ways that bordered on or crossed the line into the province of bribery, and that Valdivia played fast and loose with regard to the rules relating to filing the reports, certified under the penalty of perjury, required of public officials relating to the reception of those gratuities as well as his travel and expense vouchers for activity he engaged in while junketing or traveling on what was supposed to be official city or government business. Moreover, Barboza found credible the reports that Valdivia used the authority of his office and public assets, facilities and personnel, to engage in political activity, which is strictly forbidden under the law.
Barboza said her investigation substantiated an allegation by Cisneros that Valdivia pressured his staff members to participate in what was scheduled [but later canceled] to be a campaign event for him on opening day of the 2020 baseball season at Dodger Stadium in April; that Valdivia pressured Cisneros and another female co-worker [identified by the Sentinel as Brizuela] to work on the reelection campaigns of two of his council allies, Juan Figueroa and Bessine Richard, running in the March 2020 election; that Valdivia had accepted a $900 bottle of wine gifted to him by an ambassador without reporting the gratuity on his statement of economic interest as required by California law; that Valdivia had stated he was constantly receiving gifts he did not properly report; that he had instructed Cisneros to be “vague’ in filing Valdivia’s request for reimbursement for hotel accommodations and meals from the San Bernardino International Airport Authority, of which he is a board member, when the activity he carried out on that particular trip apparently related to his having met with donors to his campaign fund; that he was the recipient of free travel, including flights in a Gulfstream, from a particular businessman or businessmen; and that Valdivia told Cisneros that he had an inside contact at the district attorney’s office who was delivering to him information relating to any investigation or investigations that office was conducting relating to his activity.
Barboza also said she had substantiated Cervantes’ allegation that Valdivia, acting on the knowledge that Cervantes had graduated from Cal State University San Bernardino, engaged in a demeaning monologue in front of numerous people in Cervantes’ presence about the ineptitude of Cal State University San Bernardino students, remarking that he did not want to work with them because they were incompetent and were not high functioning.
Valdivia’s lawyer, Rod Pacheco, was not impressed with the quality and integrity of Barboza’s investigation nor the validity of her conclusions, though he said she for the most part got straight that his client had not engaged in classic sexual harassment.
To make a finding of sexual harassment against an individual, Pacheco said, the perception of the harassment occurring had to be “objective, not subjective. That’s the problem with this. None of this is objectively sexual harassment. What you have are a series of concoctions from a clever lawyer who wants a quick payday. What the mayor was doing was paying them [Cisneros and Cervantes] a compliment and they are making it into something it isn’t. Complimenting a woman on her shoes and asking who the designer is or who made them is not sexual harassment. That is the conclusion the investigator has apparently come to, also. We appreciate that she stated that, but we disagree with some of her other conclusions and are dismayed that this investigation was even carried out. This is a legal game to smear the mayor and get money out of the city, and now the mayor’s political enemies are using all of this as a hammer against him, when they know the allegations do not even measure up to a minimal standard. The facts are not there and will never be there. We have taken the position that this will be taken to trial so that a jury, which is the conscience of the community, can decide if this is objectively sexual harassment, and determine if the mayor complimenting a woman on her shoes amounts to sexual harassment.”
Pacheco said, “The concept and definition of sexual harassment is very clear. Sexual harassment is typically defined by groping and touching, none of which happened here. Nobody was propositioned. No one was improperly approached. Clearly, what the mayor did was ask them to work hard. He asked them to work past 5 o’clock. He asked them to attend functions such as those put on by the chamber of commerce or other groups where those people who run the city, where members of the business community, movers and shakers, other political figures were going to attend. Once you are in politics, your day is just starting at 5 p.m. When I was a member of the California Assembly, I was constantly meeting mayors, all kinds of business leaders, members of the chamber of commerce and other politicians after business hours. There were as many of those people in my life as there are hours in the night. I would give speeches at these affairs. That was my job. That was what I was supposed to do. I wasn’t alone. Everyone I served with in the Assembly did pretty much the same thing. I went to every service organization there was, before city councils, before chambers of commerce, before school boards. My staff often accompanied me to those events.”
Valdivia was simply rallying his staff to work with him in promoting the city as a place to do business, to help him lure development to San Bernardino, Pacheco suggested.
“The mayor [Valdivia] wanted to go to those kind of events,” Pacheco said. “The city is in a death spiral. It desperately needs somebody to pull it out of that death spiral. That is not a nine-to-five job. That is what all those young people the mayor brought in to work for him thought this was, a nine-to-five job. Now there is this lawsuit because they didn’t recognize that in politics, quitting time isn’t at 5 p.m. The mayor doesn’t need a lawsuit when he is trying to accomplish what needs to be done. If it weren’t so slanderous, the whole thing would be silly. He is married and has children. He has thrown himself out there. He is taking tremendous abuse. He did not have to run. That is why a lot of other decent people don’t run for office. They don’t want this kind of crap thrown at them. Public office is not some kind of glamour thing.”
With regard to Barboza’s substantiation of the accusations that Valdivia engaged in improprieties and abuses of his authority as an elected official such as taking gratuities tantamount to bribes, failing to disclose receiving those gratuities, misappropriation by accepting government reimbursement for travel and engagements relating to obtaining political donations, and misappropriation by seeking to have his mayoral staff engage in political activity, Pacheco said, “It is entirely legal for an elected officeholder to be involved politically. The law and American society recognize that elected officials are politicians and are involved in the political process. The law recognizes that elected officials are involved not only in running things in their capacity in elected office but that they are involved politically in going out to encourage their supporters and other citizens to get behind various causes political and otherwise, to support other like-minded candidates. A politician can encourage his employees to support the same causes and candidates he supports. There is nothing wrong with that behavior by the mayor. It is entirely legal. As long as what the employees are doing is done voluntarily, there is nothing wrong with them being active politically. The people who work for elected officials are sometimes given the opportunity to engage in politics. They don’t have to do so, but it is up to them.”
Pacheco said that Barboza had overreached.
“Barboza was hired as the result of the government claims,” Pacheco said. “She wasn’t hired to come in and do a smear job. In my first encounter with her, in a letter to the city attorney, I asked, ‘What is the scope of your investigation?’ Ms. Barboza lied to me about a number of things. First, she told me the investigation was related only to the governmental claims. Later, she told me her purpose was to investigate anything and everything. That is not proper. She is using tax dollars to investigate anything and everything. What the hell is that? That is what she did. I have concerns overall about this stuff she is dredging up, which is not accurate, and it is not proper for her to have gotten into this type of investigation, which is a mix of political and official issues.”
Pacheco compared Valdivia’s efforts to support Figueroa and Richard in their reelection efforts earlier this year and seeking to have his staff join in to President Donald Trump, joined by his entourage, engaging in stump speeches while he yet holds the position of president. “There is nothing illegal about that,” Pacheco said. “The fact that people are trying to find things and exaggerate things that are not illegal is an indication that what this is all about is the mayor having made the mistake of hiring a bunch of young people who do not want to work hard and get paid for doing as little as possible.”
Pacheco said the city had seriously overpaid Barboza for poorly executing a job that need not have been undertaken in the first place.
“The city could have used that $68,000 to hire another police officer instead of an investigator to dig up goofy stuff,” he said. “It was apparent to me from my first conversation with her, she [Barboza] was trying to do as extensive of an investigation as she could, a hit piece on the mayor, but she was completely unsuccessful in gathering any worthwhile information. The claimants did not talk to her. The claimants’ lawyer says he had all of this damning evidence but he does not provide it. I don’t know how she could go forward on this investigation, and I cannot comprehend how she could charge $68,000 to talk to a few clerks and secretaries, and read the claims and a few newspaper articles and use that to justify what the city was charged for that. The city didn’t need her to read something that everyone could read themselves. And the city isn’t just paying her on this. It is also paying another downtown Los Angeles lawyer to supervise her. What she did was read the claims and she wrote a report about what she read, essentially a book report. We spent, as taxpayers, $68,000 for a book report. They have an investigation that relies on anonymous sources. It is a blame piece. What the mayor did wrong was he agreed to let the city hire some people who were unfit for the job they were to do in his office. We are not going to settle this case. We will let a jury decide. We will let the jury hear them say, ‘The mayor was tough on me and he made me work hard.’”
Pacheco lambasted the city council for allowing Barboza’s investigation to proceed.
“The city needs help,” Pacheco said. “The mayor is being attacked by the other elected officials. What are they doing to fix the city? The city looks like a bombed-out mess. It looks like Syria, for God’s sake. What are the other elected officials doing to bring in businesses? What are they doing to make the city safe? Why aren’t they doing anything? One city council after another has been elected in San Bernardino and they have failed to get anything done in the city. This is important to me, because San Bernardino is my hometown.”
Councilman Henry Nickel told the Sentinel, “The report is completed. There has been discussion about what it might contain for some time. We spent thousands of dollars on a report through which we didn’t learn too much more than what we already knew. Ms. Barboza made clear she was unable to interview the litigants, and that she was relying on secondhand and press accounts and the statements given in the claims made primarily by the litigants. Ms. Barboza made statements about whether some of the accusations were substantiated or unsubstantiated. But that, at this point, has no legal bearing. Noting in the report will mean anything. It is just her professional opinion as to whether those allegations in the claims may be factual, can be substantiated or may not be substantiated. Some of the things which she now says are unsubstantiated may in fact be substantiated because at this point we have not begun the process of discovery and interviews and depositions.”
Without outright saying the city had squandered $68,000 on having Barboza undertake the investigation and complete the report, Nickel essentially opined that the report did not advance the city toward a resolution of the mayoral crisis and, accordingly, it accomplished nothing.
“The best we can do at present is speculate at the validity of the claims based on the limited information that Ms. Barboza was privy to,” Nickel said.
SB’s Legal Investigator Sustains Some But Not All Accusations Against Mayor
By Mark Gutglueck