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Sentinel 12-11-20

By Mark Gutglueck
The San Bernardino County Board of Supervisors’ legal effort to overturn county voters’ November 3 passage of Measure K, which cut the board’s compensation by three-fourths going forward, has opened up a can of worms that is likely to complicate the function of the county’s governmental structure and attendant political, administrative and legal issues for at least the next several years.
Incidental to the board’s action is the potential that it will trigger a requirement that all of the members of the board of supervisors who have served on the board since 2006 refund the county and its taxpayers several million dollars they have received in salary overpayments since that time.
The battle royale over the remuneration of San Bernardino County’s highest elected authorities has been brewing for more than a decade. In the early 2000s, the members of the board of supervisors were individually paid a salary of $99,000, what was widely considered among the general population to be sufficient. At that time, the board also received yearly pay add-ons of as much as $15,000 to $20,000, together with annual benefits of $50,000 to $55,000 that put the the supervisors’ individual total annual compensation in the $164,000 to $174,000 range.
Among the supervisors themselves, however, there was a belief that given the duties and prestige of the positions they held, their remuneration was inadequate and, indeed, might be considered an insult. In 2006, at the behest of then-Supervisor Paul Biane, the board of supervisors placed before the county’s voters what was designated as Measure P, which called for upping the board members’ salaries to $151,000 per year before benefits and any add-ons, while simultaneously imposing on the members a limitation of three four-year terms. In pitching Measure P to their constituents, the supervisors and the initiative’s other backers emphasized the measure’s term limit element. Ultimately, Measure P passed with 182,892 votes or 56.49 percent in favor and 140,887 votes or 53.51 percent in opposition.
In 2012, government reform advocates Kiernan “Red” Brennan and Eric Steinmann gathered the signatures of 73,672 county voters to qualify a countywide ballot initiative intended to bring the remuneration of the county government’s ultimate decision-makers into line with the residents they govern, and to discourage career politicians fixated on money and thereby influenced by political donations from monopolizing the positions on the San Bernardino County Board of Supervisors.
Brennan’s and Steinman’s initiative, designated as Measure R on the November 2012 ballot, called for downscaling the five individual San Bernardino County supervisors’ then-yearly $151,971 salaries and $67,500 in benefits to $50,000 in salary and $10,000 in benefits annually, a drop in total compensation from $219,471 per year to $60,000.
The members of the board of supervisors, alarmed at the prospect that they would be subject to seeing their pay reduced by more than two-thirds but simultaneously recognizing that the public’s appetite for reform was intense, used their authority as government officials to place what they said was a “substitute reform” initiative onto the ballot. That initiative, Measure Q, called for instituting reform by allowing the supervisors’ individual salaries of $151,971 to remain in place, while reducing their annual benefits then valued at $67,500 by $5,000 to $62,500. Because of their status as supervisors, they did not need to gather any signatures to put the Measure Q “reform” initiative reducing their total annual compensation to $214,471 on the ballot.
Adopting the Measure R advocates’ calls for reform, the supervisors and their supporters, as the proponents of Measure Q, did not in any overt fashion campaign against Measure R, but rather expounded in generic terms what they represented as Measure Q’s “sensible” and “moderate” approach for achieving compensation reduction for the supervisors.
In the November 2012 election, Measure R passed by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed. Measure Q passed as well, by a 67.28 percent to 32.72 percent margin, 344,226 votes in support to 157,369 against it. Because Measure Q garnered more votes than Measure R, the former went into effect rather than the latter. Instead of the supervisors seeing their $219,471 per year total compensation packages reduced to $60,000, they were instead cut back to $214,202.
Brennan died in 2013, a year after his and Steinmann’s measure came up short. Those involved in the 2012 Measure R and other government reform efforts Brennan had led founded the Red Brennan Group shortly thereafter, dedicating it to reducing the depth, breadth and cost of county government while aiming at improving its efficiency.
For many in the Red Brennan Group, there was lingering resentment over the manner in which the board of supervisors in 2012 had diverted what they considered to be a legitimate reform effort that was aimed at breaking the hold that money has on politics and elected officials.
In 2017, the Red Brennan Group undertook petition drives to qualify two countywide initiatives, one aimed at reducing members of the San Bernardino County Board of Supervisors to part time status and imposing on that panel’s members a commensurate reduction in pay, and another more comprehensive measure dubbed the “Leadership Accountability Initiative.”
The latter measure called for reversing the county’s 2010 move which changed the title and authority of the county chief administrative officer to the county chief executive officer, which had also conferred on the post higher pay. The Leadership Accountability Initiative eliminated the chief executive officer post and reestablished the county administrator position, pegged compensation of elected officials – supervisors, sheriff, district attorney, treasurer/auditor/controller and assessor – to a multiple of the median family income in the region, and eliminated increased accrual of retirement benefits by elected officials. The initiative further sought to restrict bloat within the county’s governmental structure by placing a per capita limit on the number of county employees. It was also intended to require the supervisors use every legal means available to ensure county government employee pay and benefits were equal to private industry pay and benefits in the San Bernardino County jurisdiction.
After the initiative proposals were submitted in 2017 to the county’s stable of in-house lawyers, known as the office of county counsel, the county sued the initiatives’ proponents, claiming the initiatives violated the California Constitution, the current legal authority of the supervisors, and the single subject rule for initiatives. In its lawsuit, the county contended it therefore should not be required to complete its ministerial duty of providing a ballot title and summary for the initiative proposals.
At that point, the Red Brennan Group postponed its efforts, consulting with legal authorities before proceeding.
Following that legal guidance and a delay of more than a year-and-a-half, it resumed its efforts, and began circulating a petition last year to force a referendum on a measure to reduce the total compensation of each of the members of the board of supervisors to $5,000 per month and limit them to a single four-year term. The group gathered 75,132 signatures, which were affixed to copies of the petition. Those documents, consisting of 10,121 pages, were handed over to the San Bernardino County Registrar of Voters Office on March 20, 2020.
Registrar of Voters Bob Page thereafter carried out an exacting “3% random sample” examination of the signatures, in which 2,255 were scrutinized. Of those, 1,840 were found to be the valid signatures of registered county voters and 415 were what Page deemed “insufficient.” He found among the valid signatures one duplicate. Thus, Page projected, were the full 75,132 signatures to be examined, 60,228 would be determined to be valid. The three percent sampling standard can be used to certify an initiative petition drive, Page indicated, if the sampling projection shows that more than 110 percent of the required number of voter signatures have been attained. The 60,228 signatures was equal to 112.1 percent of the 53,725 signatures needed to qualify a countywide initiative. On that basis, Page certified the initiative the Red Brennan Group was sponsoring to be eligible for placement on the November 3, 2020 ballot. The board of supervisors temporized for two months thereafter, throughout much of April, all of May and well into June, doing so in order to provide then-County Chief Executive Officer Gary McBride, then-Chief County Operating Officer Leonard Hernandez, their staffs and the office of county counsel time to research and come up with some grounds upon which to prevent the measure from being placed before the county’s voters. When no such basis for keeping the measure off the ballot emerged, the board on June 23, 2020, openly expressing their beliefs that Measure K’s reduction in salary and one term restriction on the time a member of the board can serve is contrary to the principles of good governance and the interests of San Bernardino County’s residents, reluctantly voted to have the registrar of voters process its placement on the ballot. Then, seeking to replicate the success the board had in 2012 in stymieing Red Brennan and Eric Steinman in their effort to reduce the pay of the board members, the board used its authority as a sitting elected body to offer the voters an alternative “charter reform measure,” which was aimed at preventing the gist of Measure K – the pay reduction to $60,000 per year and the limitation of supervisors to one term – from taking effect.
Having come to a determination that the county’s existing charter is antiquated and in need of revamping, the supervisors placed a measure aimed at what was called the redrafting of the county charter on the ballot, voting on July 14 and again on July 28 to place their charter reform initiative on the November 3 ballot, just in time to meet the  county registrar of voters office’s August 7 deadline for the submission of items to be placed before the voters. Though there had been scant discussion of charter changes previously and no expression of a public consensus on what elements of the charter should be redressed, the office of county counsel virtually overnight delivered the language for the charter reform initiative for the board to approve on July 14.
Of tremendous importance, the board said, was modernizing the charter to eliminate what is now considered outdated and genderist language, such as the charter’s reference to the board’s designated leader as “chairman” and what “his” duties consist of. Further, since the current charter did not directly address the compensation the supervisors receive, their level of pay was deemed an important issue for the redraft. There was no public discussion of an appropriate remuneration level. Rather, the office of county counsel, working from the premise that the supervisors current salary of $163,000, augmentation/add-on pay of roughly $17,000 and benefits of $77,000 for a total annual compensation of $257,000 is what the supervisors deserve, hit upon setting the supervisors’ salaries at 80 percent of the salary of a Superior Court judge and making their benefits equal to that provided to county department heads. In this way, the board of supervisors’ charter reform measure called for having the supervisors pulling down $260,000 to $290,000 per year in total annual compensation, depending upon the amount of further/add-on pay they are provided with. In addition, Measure J clarified an ambiguity contained in Measure P, which set a three-term limit. Those looking at the language of Measure P said it left open the possibility that a supervisor serving in one district for the three term limit could thereafter relocate his or her residence to another district and seek election to the board there. Measure J clarified that a single individual was limited to three terms total on the board, no matter which district he or she represented.
Just as was the case in 2012 when the county’s alternative reform measure was given the designation of Measure Q, placing it on a higher position on the ballot than Red Brennan’s Measure R despite the consideration that Brennan’s initiative was submitted first, this year the registrar of voters designated the county board of supervisors’ petition Measure J, placing it above the Red Brennan Group’s Measure K.
Analysis of voter behavior demonstrates that when casting their ballots with regard to competing candidates or initiatives, voters statistically favor the candidate or measure higher up on the ballot.
Under state law, in a circumstance in which two measures that have conflicting provisions pass, that which obtains the most votes goes into effect with regard to those conflicts the measures involve. It was the county board of supervisors’ hope that if both Measure J and Measure K were given approval by the voters, Measure J would garner more votes, and thus it would be the controlling determinant pertaining to the supervisors’ pay level.
As it turned out, Measure K passed by such an overwhelming margin that its one-term restriction and $60,000 total compensation provision trumped the three-term and $260,000 to $290,000 per year in total annual compensation elements of Measure J. According to the final certified results of the November 3 vote provided by the San Bernardino County Registrar of Voters, voters approved Measure J by a 10,640 vote margin with 378,964 or 50.72 percent of the 747,188 votes counted in favor of the initiative versus 368,224 votes or 49.28 percent cast against it. Measure K, meanwhile, was favored by better than a two-to-one margin of the 772,282 votes cast, as 516,184 votes or 66.84 percent endorsed the initiative and 256,098 votes or 33.16 percent were recorded in opposition.
Unwilling to accept the prospect that their pay was to be reduced to less than one-fourth of what they were at that point receiving, the board of supervisors the day after the election results were certified took legal action to prevent Measure K from being implemented. Of note was that the board of supervisors did not sue the Red Brennan Group nor Nadia Renner, who was the individual who had sponsored Measure K and signed the application to take it to a vote, but rather their own employee, Clerk of the Board of Supervisors Lynna Monell. Represented by attorneys Bradley Hertz, James Sutton and Nicholas Sanders, the board filed a petition for a writ of mandate in San Bernardino County Superior Court on December 2 seeking an order of the court that Monell not take any action which would implement Measure K’s provisions.
According to the petition for a writ of mandate, Measure K is fatally flawed because it “violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative.” The petition for a writ of mandate further states that “Measure K must not be implemented because it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors.” The petition for a writ of mandate asserts that Measure K must not be implemented because its “term limit provision for members of the county board of supervisors violates the First and Fourteenth Amendments to the United States Constitution” and “impermissibly infringes on voters’ and incumbents’ First and Fourteenth Amendment rights.” Additionally, the writ of mandate maintains Measure K violates what Hertz, Sutton and Sanders termed “the single subject rule” pertaining to voter initiatives and that “Measure K must not be implemented because it does not embrace a single subject.” The petition for a writ of mandate quotes California Constitution, Article II, Section 8(d), stating, “Ballot initiatives are prohibited from ‘embracing more than a single subject.’”
Citing the 1976 case of Meldrim v. Board of Supervisors of Contra Costa County and the 1999 case of Jahr v. Casebeer, Hertz, Sutton and Sanders asserted, “Courts have recognized that [California Constitution] Article XI, Section 1 (b) provides that only county boards of supervisors have the right to set supervisor salaries, and that such salaries may not be set by citizen initiative. Section 4(b) affirms Section l(b)’s limited grant of power, and both of these sections were amended in the State Constitution in 1970 via Proposition 12, entitled ‘Compensation of County Supervisors.’ Proposition 12 removed the power to set county supervisors’ salaries from the California State Legislature and vested such power in the boards of supervisors. Section 4(b) provides that if a county charter includes a provision that compensation is to be set by legislative action, then only the county’s governing body may do so. Section 4(b) does not modify or otherwise affect Section l(b)’s provision that supervisor compensation may be set only by the county’s legislative body. To find otherwise is plainly inconsistent with the Constitution, and is inconsistent with the general scheme of county government.”
Just because the county had allowed Measure K onto the ballot and the voters had voted by a margin of more than two-to-one to approve it does not mean that its provisions are binding, Hertz, Sutton and Sanders maintain in the petition.
“Although boards of supervisors are required to place county charter amendments on the ballot for approval or rejection by the county’s voters, such action is distinguishable from measures such as Measure K, which are placed on the ballot via the citizen initiative process, as opposed to the governing body via an ordinance,” the petition reads. “Accordingly, Measure K violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative. Measure K must not be implemented because it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors.”
In a letter sent on December 4 to Aaron Burden, a lawyer for the Red Brennan Group, Hertz said, “The petition/complaint is being brought pursuant to California Code of Civil Procedure Sections 1085, 525 and 1060, et seq., on the grounds that Measure K is unconstitutional, legally invalid, and otherwise unenforceable, and that Ms. Monell, among others, must not take any actions that would cause the implementation of Measure K. We intend to demonstrate to the court, via our ex parte papers and when the matter is fully briefed and heard on its merits, that Measure K is invalid and unenforceable, that imminent and irreparable harm will occur if Measure K is implemented, and that therefore good cause exists to warrant the granting of immediate interim relief, and ultimately, preliminary and permanent relief, preventing the implementation of Measure K.”
A hearing on the petition for a writ of mandate was held on December 4 before San Bernardino Superior Court Judge David Cohn.
Hertz, Sutton and Sanders came to that hearing armed with a motion that a temporary restraining order be granted to halt the implementation of Measure K while the petition for a writ of mandate is being litigated.
The Red Brennan Group, which has been authorized by the petition’s proponent, Nadia Renner, to defend her interests, was present at the hearing in the form of its attorney Aaron Burden. Also in attendance was attorney Cory Briggs, representing the Inland Oversight Committee. Both Burden and Briggs, on behalf of their clients, had drafted and submitted motions to intervene as defendants in the case. Judge Cohn, at the outset of the December 4 hearing, told Burden and Briggs that they were welcome to observe the proceedings, but the Red Brennan Group and the Inland Oversight Committee were not parties involved in the matter, and as such they did not have status to involve themselves in the proceedings.
Judge Cohn, by his interaction with the Hertz, appeared poised to rule in favor of the board of supervisors and grant the temporary restraining order. When, however, Briggs asserted there was a question as to whether the court had jurisdiction in interfering with a matter already decided by a vote of the people, this deterred Judge Cohn, who thereafter delayed his decision, giving both Burden and Briggs an opportunity to file by today, Friday, December 11, briefs supporting why the Red Brennan Group’s and the Inland Oversight Committee’s motions to intervene should be granted, which would essentially allow them a seat at the table to argue the case against the petition for a writ of mandate’s request that Measure K be prevented from going into effect. Judge Cohn gave Hertz, Sutton and Sanders until Monday, December 14 to submit a brief as to why Measure K is to be stayed. Thereafter, on December 18, Judge Cohn is to revisit the question of whether a temporary restraining order to block the implementation of Measure K should be given.
Judge Cohn further granted permission for Burden and Briggs to file preliminary opposition papers to the board of supervisors’ ex parte application to stay the application of Measure K. If, on December 18, Judge Cohn grants either or both the Red Brennan Group’s and the Inland Oversight Committee’s motions for intervention, he will then consider the board of supervisors’ motion together with the opposition papers against it. In the case that the Red Brennan Group and the Inland Oversight Committee are not granted intervention, there is an overwhelming prospect that the board of supervisors’ temporary restraining order will be granted, since the county – meaning Monell in her capacity as the clerk of the board of supervisors – is not opposing the legal filing against her by her political masters, the board of supervisors.
Technically, the office of county counsel – the county’s in-house stable of attorneys, is tasked with defending both Measure K, as a citizen-passed initiative which upon passage has the status of a county ordinance, and county employees faced with a legal challenge, such as Monell. County Counsel Michelle Blakemore, who serves at the pleasure of the board of supervisors, however, has apparently made a decision to not provide a robust defense of Measure K, or indeed, any defense of Measure K. This decision could have a momentous impact upon the county and the board of supervisors as well as upon Blakemore’s status as an attorney.
In their rush to put the petition for the writ of mandate together to achieve the board of supervisors’ goal of heading off the impacts of Measure K, Hertz, Sutton and Sanders may have opened the door to a host of what may prove to be highly untoward unintended consequences not just for the current members of the board of supervisors but all of those who have served in the capacity of county supervisor since December 2006. At the very least, Hertz, Sutton and Sanders, who apparently lack and have no access to an institutional memory of issues and events in San Bernardino County going back a decade-and-a-half, have raised with the petition for a writ of mandate some obvious questions that bring into doubt whether the county and both the current and past board of supervisors have acted appropriately, legally, in accordance with the U.S. Constitution, the California Constitution, and the California Government Code. Moreover, Hertz, Sutton and Sanders may have inadvertently revealed that their clients – the board of supervisors as it was composed on December 2, 2020 – engaged in a conspiracy and a criminal public agency conflict of interest that could render them and, possibly, past members of the board of supervisors ineligible to ever again hold elected public office in California.
At issue is that if it proves out that all of Hertz’s, Sutton’s and Sanders’ contentions with regard to Measure K are accurate, those assertions also appear to be equally applicable to Measure P, which, upon its passage in 2006, boosted the supervisors’ salaries by $52,000 yearly from that time forward. The salary provision of Measure P remains in effect. Thus, by the extension of the logic applied in the petition for the writ of mandate filed by Hertz, Sutton and Sanders on December 2, the members of the board of supervisors have over the last 14 years received $3,640,000 in pay to which they were not legally entitled.
The writ of mandate’s language pertaining to Measure K seems equally applicable to Measure Q, which was placed on the ballot by the board of supervisors and supported by them in 2012, and which passed and remains in effect.
The writ of mandate’s language pertaining to Measure K’s illegality likewise is equally applicable to Measure J, which was placed on the ballot by the San Bernardino County Board of Supervisors this year, and which was passed by the voters.
According to the legal standard enunciated by Hertz, Sutton and Sanders in their petition for a writ of mandate on behalf of the board of supervisors, Measure P violated “the single subject rule” for initiatives; its term limit provision for members of the county board of supervisors violated, no less than Measure K does, the First and Fourteenth Amendments to the United States Constitution by “impermissibly infringing on voters’ and incumbents’ First and Fourteenth Amendment rights.” Just as Measure K did, Measure P violates the California Government Code’s prohibition on the adjustment of sitting officials’ salaries by any entity other than the board of supervisors by exceeding the initiative power of the electorate through intruding on matters that are exclusively delegated to the governing body, in this case determining the compensation the supervisors are to receive.
In like fashion, according to the standard which Hertz, Sutton and Sanders said is applicable to Measure K, the county board of supervisors’ Measure Q in 2012, which turned over to the voters a choice on what the board’s salary and benefits are to be, intruded on the board of supervisors’ ability to set the compensation level for themselves.
Measure J, which the board placed on the ballot this year, violated the California Government Code’s restriction against anyone other than the board of supervisors being able to set their own pay, was further out of compliance with the “the single subject rule” for initiatives; and its term limit provision for members of the county board of supervisors violates, just as Measure K does, the First and Fourteenth Amendments to the United States Constitution, if the legal standard spelled out by Hertz, Sutton and Sanders in the petition for a writ of mandate they filed on behalf of the board of supervisors on December 2 is adhered to.
When Hertz, Sutton and Sanders this week were individually queried by the Sentinel if they contested that measures P, Q and J are or were fatally flawed in the same way that Measure K is flawed, they declined to respond.
Significantly, Hertz, Sutton and Sanders did not dispute that the logical extension of their argument against Measure K is that both Measure P, which raised the supervisors’ individual annual salaries from $99,000 to $151,000 in 2006 and Measure Q, which in 2012 set the supervisors’ individual total compensation at $214,471 before add-ons, consisting of $151,971 in salary augmented by benefits of $62,500, were improper, illegal, unconstitutional, improperly approved by the county’s voters and therefore inapplicable. Specifically and directly asked to expound on what distinguishes both Measure P and Measure Q from Measure K in terms of their constitutionality and adherence to the government code and compliance with “the one subject rule” pertaining to initiatives, neither Hertz, Sutton nor Sanders was able or willing to do so. Furthermore, Hertz, Sutton and Sanders did not dispute that their writ of mandate on behalf of the board of supervisors implies measures P and Q were unconstitutional, improperly voted upon, improperly passed, improperly imposed and illegal, and they did not contest that the measures’ unconstitionality, the impropriety of their submission to the voters, improper passage and adoption and their inconsistency with the law constituted grounds upon which to vacate their terms, retroactively to 2006 and 2012, a concession that this reverted the board of supervisors into a situation in which their annual salaries are under the law properly set at $99,000 per year. Nor did Hertz, Sutton and Sanders dispute that the three four-year term limits imposed on all of the members of the board of supervisors in the years going forward from 2006 are void and that past and current members of the board of supervisors are free to run for reelection as many times as they wish.
In this way, it appears that the late former Third District Supervisor Dennis Hansberger, who served on the board from 1972 until 1980 and then again from 1996 until 2008, was overpaid by $104,000 during his final two years on the board; Brad Mitzelfelt, who served on the board as both appointed and elected First District supervisor from early 2007 until 2012, was overpaid roughly $307,666.67 during his five year-and-eleven-month tenure on the board of supervisors; Second District Supervisor Paul Biane, who served on the board of supervisors from 2002 until 2010, was overpaid $208,000 during his last four years on the board; Third District Supervisor Neil Derry, who served on the board of supervisors from 2008 until 2012, was overpaid $208,000 during his entire tenure on the board; Fourth District Supervisor Gary Ovitt, who served on the board from 2004 until 2014, was overpaid $416,000 during his last eight years on the board; Fifth District Supervisor Josie Gonzales, who served on the board from 2004 until earlier this week, was overpaid $728,000 during her last 14 years on the board; incumbent Second District Supervisor Janice Rutherford, who was elected to the board in 2010, has been overpaid $520,000 during her tenure on the board so far; former Third District Supervisor James Ramos, who served on the board from 2012 to 2018, was overpaid $312,000 during his tenure on the board; former First District Supervisor Robert Lovingood, who served on the board from 2012 until this week, was overpaid $416,000 the entire time he was on the board; incumbent Fourth District Supervisor Curt Hagman, who has been on the board since 2014, has been overpaid by $312,000 during his tenure on the board to date; and incumbent Third District Supervisor Dawn Rowe, who has been on the board since 2018, has been overpaid $104,000 during her time thus far on the board.
Hertz, Sutton and Sanders gave no indication as to whether they would advocate that Mitzelfelt, Biane, Derry, Ovitt, Gonzales, Rutherford, Ramos, Lovingood, Hagman, Rowe and Hansberger’s estate refund the overpayments that have been paid out since 2006. It has not been announced whether the five incumbents – Rutherford, Hagman and Rowe, as well as Paul Cook and Joe Baca, Jr., both of whom were sworn in this week on Monday, December 7 as First District supervisor and Fifth District supervisor respectively, have had their remuneration cut back to reflect the reduction of their salaries to $99,000 per year. Nor was it made clear if any or all of the supervisors would be allowed to claim cost of living increases with regard to those salaries with each succeeding year they have been in office. This is complicated by the consideration that from 2007 until 2014, during which there was a massive downturn in the national economy, that the consumer price index, upon which cost of living increases are based, inched up only slightly during those seven years.
What methodology will be used in having the current and former supervisors refund the money they have been overpaid has not been spelled out. For Rutherford, Hagman and Rowe, the potential of garnishing their wages is a possibility. In the case of Rutherford, the $520,000 she owes the county’s taxpayers is roughly equivalent to the combined salary, add-ons and benefits she would have made during the next two years if she was receiving the slightly more than $168,000 in salary she was provided with this year. With her salary now reduced to $99,000 or thereabouts, that equivalency no longer exists. Moreover, her benefits cannot be garnished. It is not possible, either, for Hagman to fully make up the $312,000 he is now in arrears to the county’s taxpayers by devoting his salary for the next two years to canceling that debt which he has accrued by taking a salary that was a third again more than he was legally entitled to the last half dozen years. For Rowe, whose debt to the county’s taxpayers runs to $104,000, the possibility exists that by surrendering her salary over the period of one year, she can pay down very nearly all of the money she illegally received over the last two years.
Precisely how six of the seven former members of the board – Mitzelfelt, Biane, Derry, Ovitt, Gonzales and Lovingood – will make the county whole remains to be determined. Ramos is independently wealthy, and should be able to retire his debt in short order. Lovingood is relatively well fixed, so should be able to tap into the money he makes from his business, an employment agency, to cover the $416,000 he was paid which he did not earn. In the case of Gonzales, as is the circumstance with Hagman, Rutherford and Rowe, she has a sizable electioneering fund. If it is legal for Gonzales to do so, she may tap into the more than $750,000 she has in her political war chest to retire her now personal debt to the county. Likewise, Hagman and Rowe have money in their campaign accounts, although theirs are not as substantial as that of Gonzales, who is contemplating a run for county assessor in 2022.
There are other complications for at least some of the current and former members of the board of supervisors as well as current County Counsel Michelle Blakemore that are radiating from the petition for a writ of mandate filed on December 2. Those may be more serious than all of the other considerations combined, as these carry criminal implications for five of the current and former board members and career threatening implication for Blakemore.
The petition for a writ of mandate on behalf of the board of supervisors was filed on December 2, at which point Hagman, Rutherford, Lovingood, Gonzales and Rowe were members of the board. The petition maintains, by logical extension, that Measure P was invalid, rendering its provision that boosted the board of supervisors’ individual salaries from $99,000 annually to $151,000 annually invalid. This at the very least implies that Hagman, Rutherford, Lovingood, Gonzales and Rowe knew that they were not entitled to the salaries – equal to $151,000 per year or more – that they accepted over the course of their tenures in office. That action constituted a potential variety of crimes, including theft, fraud, misappropriating public funds and public office conflict of interest. An elected officeholder convicted of a violation of the law pertaining to public office conflict of interest – California Government Code Section 1090 – can result in the individual so convicted being banned from holding public office thereafter. Theft, fraud and misappropriation involving money in the amounts that Hagman. Rutherford, Lovingood, Gonzales and Rowe accepted to which they were not legally entitled are prosecutable as felonies. Hagman’s, Rutherford’s, Lovingood’s, Gonzales’ and Rowe’s status as plaintiffs in a civil case in which they maintain the means they utilized to obtain money to which they were not entitled was illegal constitutes a prima facie case that each had knowledge they were engaging in an illegal act or series of illegal acts, constituting fraud, theft, misappropriation of public funds, public office conflict of interest and conspiracy when they accepted, year after year, some $52,000 more than their actual $99,000 per year salary.
Making a criminal case against Mitzelfelt, Biane, Derry, Ovitt and Ramos would be more difficult, as there is no immediately available indication or evidence to prove they understood or knew Measure P’s provisions with regard to their salaries to be illegal. Nevertheless, any assertion or argument they might make that they did not know they were not entitled to the money they received that was not legally theirs does not absolve them of the requirement under the law that they return that which does not belong to them to its rightful owner.
Similarly, any claims members of the board of supervisors might make that the statute of limitations has elapsed on their responsibility to disgorge the money to which they were not entitled would not suffice since the illegal disbursement of the money they are receiving has continued up to the present, either directly as a salary or in the form of enhancements to their public pensions.
For Blakemore, her entanglement with the board of supervisors and the petition for writ of mandate has all the makings of a legal and professional nightmare. As county counsel, she has an ethical and professional duty to serve her clients, which include the board of supervisors, the residents of San Bernardino County, the voters of San Bernardino County, who by initiative have passed a measure that takes on the status of an ordinance, and county employees, including the clerk of the board of supervisors. She also has a duty to defend any ordinance of the county, including ones passed by initiative by the voters of the county. While the board of supervisors in the case of the petition for a writ of mandate is not represented by Blakemore, she still represents them in scores, indeed hundreds or even thousands, of other matters. Simultaneously, she is duty bound to defend Monell as well as Measure K, which upon passage by the voters of the county and the certification of the election by the county registrar of voters office, automatically became a county ordinance. At the insistence of the board of supervisors, however, Blakemore and her office are standing down in the defense of Monell and Measure K, and by extension, the registrar of votes and San Bernardino County’s voters, who passed Measure K by a two-to-one margin on November 3. In this way, Blakemore has shirked her responsibility to Monell, the county’s residents, the county’s voters and Measure K. Indeed, it appears that Blakemore is attempting to throw the case by refusing altogether to mount a defense of Measure K in the face of the board of supervisors’ petition for a writ of mandate.
So far, there has been no indication that Blakemore is going to recuse herself and the rest of the office of county counsel in favor of bringing in an outside law firm to have it defend Measure K.
Where conflicts such as the one that Blakemore is caught up in manifest, they can be cured by the several parties represented by the attorney or attorneys with just such a conflict signing a waiver. The Sentinel’s inquiry of the county as to whether such a waiver was composed and signed in this instance was not given a response. The Sentinel further asked who had signed on behalf of the board of supervisors if such a waiver was indeed made, specifically if all five supervisors or just Chairman Hagman signed it. Similarly, the county did not respond as to who had signed any such waiver on behalf of the voters, and specifically if that person making the waiver on behalf of the voters was Monell or Bob Page, the registrar of voters. The county did not indicate at all whether Monell or Page had been a signatory to any such waiver.
David Wert, the county’s official spokesman, did, however, respond to the Sentinel’s inquiry on that point, albeit with questions in return.
“Why would county counsel defend a voter-approved ballot measure, unless specifically directed to do so by the board of supervisors?” Wert asked. “Are you saying it is county counsel’s role independent of the board and board direction to defend any voter-approved ballot measure against legal challenges?”
Whether some individual with standing – consisting of a county voter or a member of the Red Brennan Group or perhaps the Inland Oversight Committee, if one of those entities is granted permission by Judge Cohn to to intervene as a defendant in the case – will pursue a complaint against Blakemore is unknown at this point.
Current members of the board of supervisors were not willing to discuss Measure K, preferring to let Hertz, Sutton and Sanders do their talking for them – in a court of law. Hertz, Sutton and Sanders are not talking to the press.
Paul Biane, whose sponsorship of Measure P in 2006 was a major contributory factor to its passage, was willing to weigh in on Measure K and its stark limitation on the remuneration provided to the members of the board of supervisors.
“I would say what I said in 2006, which is that it is not advisable to have amateurs or volunteers serving in the role of county supervisor,” Biane said. “You don’t want people in important decision-making roles like that who are pursuing being in elected office as a hobby. You need talented professionals to fill that job, which is very demanding, and you need to offer them pay that is competitive.”
Former Supervisor Neil Derry told the Sentinel, “No one who is qualified to hold an office in which you serve 400,000 constituents will go through the grief of running for election to make less money than that person could make in the private sector. The lowest level planners in the county make more than $50,000 in salary, along with benefits and retirement. A supervisor’s chief of staff will make more than twice what a board member makes. That is not sensible. It is bad governmental policy and it is bad public policy. I am not surprised that the voters passed Measure K. The voters are unhappy with politicians, and I don’t have an argument with that. There are too many elected officials who have become fat and happy and don’t work. That is unfortunate, because they have a job to do. I am not attacking any of the current members of the board. If you want to run for office just to have a title, then a salary of $50,000 a year is exorbitant. If you are running for office to truly serve your constituents, a $50,000 salary is not enough money. It is not feasible to live on that.”
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Outgoing San Bernardino Councilman Henry Nickel will not seek a recount of the ballots cast in the November 3 election, despite earlier indicating he would do so.
Nickel, who in March finished first with 1,802 votes for 35.45 percent in a six-candidate race in San Bernardino’s Fifth Ward, was nevertheless forced into a run-off against the second place finisher, Ben Reynoso, with 1,295 votes or 25.48 percent, because neither captured a majority of the vote. Last month, according to the final certified results from the registrar of voters office, Reynoso, with 5,772 votes or 52.74 percent, bested the incumbent Nickel, with 5,172 votes or 47.26 percent.
Nickel was ahead on election night, when 11 of 12 precincts had reported, 2,494 votes or 50.25 percent to 2,469 votes or 49.75 percent. The next morning, with all 12 precincts in Ward 5 reporting, Reynoso had pulled ahead, 3,016 or 50.65 percent to 2,935 or 49.29 percent. Over the next several weeks, as more and more absentee, mail-in and provisional ballots were counted, Reynoso’s lead increased.
Nickel suspects election fraud, stating that Reynoso was endorsed by the union representing the county’s employees, including election workers. He said he wanted a recount, but after learning that carrying out such a tally precinct-by-precinct will cost $192,000, he said he could not afford to proceed. He yet maintains that the election was stolen from him.

The Upland Planning Commission, faced with growing discontent over the city development services director’s insensitivity to the quality of life implications of the juxtaposition of incompatible land uses at various locations around the City of Gracious Living, Wednesday night denied a proposal by Yellow Iron Development to construct a 92,275-square foot warehouse on 11^th Street.
That was a dramatic change from the previous planning commission meeting on November 18, when the planning commission had approved, on a 5-to-2 vote, making a mitigated negative declaration with regard to the project. That vote was seen as an indication that the project was on a trajectory toward final approval. At the November 18 meeting, the commission’s consensus was that the only issue preventing acceptance of the project and its site plan was the need for a greater definition of the nature of the operation that would be run out of the facility once the building was erected.
There were, however, issues that complicated the matter.
In April, the city council had considered and then approved two controversial projects – Bridge Development Partner’s 201,096-square-foot distribution center for on-line retail behemoth Amazon located on 50 acres north of Foothill Boulevard and south of Cable Airport and Frontier Homes’ 65 single family detached residential unit Villa Serena subdivision on 9.2 acres within a 20.3-acre site at the juncture of 15^th Street and 13^th Avenue within the Foothill Knolls neighborhood.
Both the Bridge/Amazon and the Villa Serena projects had been given go-ahead in a process that did not require comprehensive environmental impact reports to certify that the California Environmental Quality Act would be adhered to in their construction. Instead, those projects were subject to the mitigated negative declaration process. A mitigated negative declaration utilizes the city’s elected officials in the form of the city council or the appointed members of the planning commission to sign off on an assurance that the consequences of the project will not adversely impact the district wherein those projects are to be placed, nearby neighborhoods or the city overall, nor overwhelm the infrastructure and utilities serving the area.
In the cases of both the Bridge/Amazon and Villa Serena projects, there were significant numbers of Upland residents who believed those undertakings represented potential and real untoward impacts on the surrounding neighborhoods, districts and city as a whole. They formed citizens committees – Upland Community First and Friends of Upland Wetlands, respectively – which sued the city over the project approvals, seeking rescission of the project approvals until such time as the city carried out a full-blown environmental impact report with regard to each before again considering them and granting them an entitlement to proceed. Both projects remain tied up in the courts.
Of note was that both the Bridge/Amazon and Villa Serena projects had been processed by the city’s development services/planning division, under the leadership of Upland Development Services Director Robert Dalquest. Dalquest has cultivated a reputation for indulging the development community in its efforts to obtain project approval through allowing proposed projects to proceed using the least exacting methods of obtaining environmental certification, such as a mitigated negative declaration, rather than a full-fledged environmental impact report, which is much more comprehensive and much more expensive for the proponent. Many Upland residents had, accordingly, developed concerns that the city was in this way allowing builders and the development community to cut corners with regard to incorporating into their projects elements that would eliminate, decrease, lessen or offset the impacts those developments would have on already existing and future nearby homes, businesses and properties as well as the infrastructure in the immediate area of where the new development was to occur. This included impacts on streets and traffic, air and water quality, use of utilities, and other ambient conditions.
When the city planning and development services divisions took up the application by Yellow Iron Development to construct what was described as a warehouse on the south side of 11^th Street between Central Avenue and Monte Vista Avenue, a cross section of residents already had misgivings that city officials with discretion over the matter would evince greater concern for the developer and the sentiments of a decidedly pro-development city council headed by Mayor Debbie Stone than for the residents of the area. When the approval of the project was delegated to the planning commission, an appointed rather than an elected body, the distrust of city officials and Dalquest heightened.
At issue was that across 11^th Street to the north and slightly to the west was the existing and nearly completed Harvest residential subdivision with 318 dwelling units, while across the street slightly to the east was the site for the approved-but-yet-to-be-initiated Enclave development, which is to consist of 192 condominiums and townhomes.
City officials had done little to notify or alarm the existing residents within the Harvest neighborhood that a warehouse facility, which could involve, variously, light industrial manufacturing activity or warehousing and distribution operations or some other type of industrial functions, was on the verge of being permitted to set up shop within shouting distance of their homes.
An issue that was not fully addressed by Dalquest and the remainder of city staff in its preparation for the documentation for the proposed project’s consideration at the November 18 meeting was the intensity of use that will take place in, at and around the facility once it is built. Based on the city staff report and Yellow Iron Development’s representations, the eventual use was to relate to some order of a distribution operation rather than a manufacturing one.
An analysis of known and indefinite factors relating to the project and the property upon which it is proposed to stand indicated that the eventual tenant would be called upon to spend roughly $92,000 in basic rent per month or $1.1 million per year to occupy the proposed building, based upon a $1 per square foot per month rental cost, which falls within the average rate in Southern California. Leasing would only be a percentage of a warehouse’s operating costs. In addition, other cost elements to open the doors of a warehouse or distribution facility and make it operational would be involved, including but not limited to the provision of utilities, purchase of and debt service for the acquisition of equipment, vehicles and furnishings, plant maintenance, insurance, taxes and personnel. These combined costs could zoom to as much as $500,000 per month. In order to meet this financial burden, an energetic and intensive warehouse operation would be required, entailing trucks flowing in and out all day long, perhaps in three shifts per day. Yet, based upon what was said at the November 18 meeting, the eventual tenant was to be prevented, from the outstart, from operating more than a very small number of trucks, including those engaged in bringing merchandise into the warehouse and vehicles loaded with merchandise being dispatched from the warehouse for either wholesale or retail delivery. This limitation seemed as if it was going to reduce considerably the number of entities that would be willing to locate on the property, since the ability to generate sufficient income as a going concern involved in warehousing and delivery would likewise be diminished, perhaps to below that which would be profitable.
During the November 18 public hearing for the warehouse project, none of the residents of the Harvest neighborhood were present to provide input or offer their reaction to the project proposal, either as a show of protest or reservation with regard to its potential impacts or support for its placement less than one-fortieth of a mile from the entrance into their gated community.
The November 18 meeting agenda entailed staff’s presentation of the project, including its recommendation that the project be given go-ahead, a public hearing in which city residents and any others could be heard with regard to the issue, a vote which was to be joined in by members of the Airport Land Use Committee with regard to a finding that the project is consistent with the Cable Airport Land Use Compatibility Plan, a vote to make a mitigated negative declaration that the project is in compliance with the California Environmental Quality Act, and a vote to approve the development plan for the project.
Entirely foreclosed was the possibility that a comprehensive environmental impact report for the project would be completed. Indeed, during the public hearing, Yellow Iron Development’s principal, Tony Spinrad, asserted his initial position that no environmental study of any sort was needed for the project.
“This is not a 50-acre site,” Spinrad said. “There are not 1,400 parking spots on here. There are 11 truck positions, and so this isn’t going to be thousands of vehicles on the streets. This is going to be what we’ve studied. It’s a relatively small site. It’s under five acres. The building is less than a hundred thousand square feet. So initially, we came in and we were hoping to do a CEQA [California Environmental Quality Act] exemption, and [Upland Associate Planner] Joshua Winter, Bob [Dalquest] and the city, they felt it was important to do the studies, and so, I think they’ve done a great job, and I appreciated working with them this year.”
In Spinrad’s parlance, the term “studies” meant data assembled for the planning commission to make its mitigated negative declaration, rather than an actual environmental impact report.
After Upland Land Use Committee Member Ronald Campbell joined with the planning commission in making a finding that the proposed project is consistent with the Cable Airport Land Use Compatibility Plan, the commission moved its focus to whether making a mitigated negative declaration was sufficient to give the project environmental certification.
The planning commission as a whole on November 18 came across as relatively cavalier with regard to its role of looking after the interests of the nearby residents who would, upon the completion of the project, have to live with its impact, though a two-member minority of that panel – Gary Schwary and Christine Caldwell – gave indication they were sensitive to the land use incompatibility represented by a warehouse being located close to more than 500 homes. Both Schwary and Caldwell opposed providing the project with a negative declaration. In her comments, Caldwell voiced the view that a warehouse proximate to the existing Harvest subdivision with its 318 dwelling units and the approved-but-yet-to-be-initiated Enclave development, with 192 condominiums and townhomes, was an incompatible use. The commission, with commissioners Robin Aspinall, Carolyn Anderson, Thomas Grahn, Serge Mayer and Patrick Shim prevailing, voted to make the mitigated negative declaration for the project.
After that vote, the discussion on November 18 turned to the approval of the development plan review for the project, which would be tantamount to approval of the project itself and permission for Yellow Iron Development to proceed. It was during his interchange with Spinrad that Schwary locked onto what for many was a troubling aspect of the warehouse project, that being the lack of definition with regard to the project itself.
“We don’t know exactly who our tenant is going to be yet,” Spinrad said. “We have been talking to [prospective] tenants.”
The inexactitude of the eventual use had proven disconcerting for more than a smattering of civic activists. The zoning on the property is light industrial, which, according to city officials, would allow the warehouse, once it is completed, to house various types of operations, including manufacturing and a distribution facility, although some city residents dispute the latter. There was an incident earlier this year in which a conversation between Dalquest and the current city attorney, Steven Flower, that took place during a break at a council meeting was captured on the audio portion of the video of that meeting. The exchange between Dalquest and Flower demonstrated that neither of them were fully convinced that a distribution facility is allowable under the city’s light industrial designation. During the November 18 meeting, Steve Bierbaum, an Upland resident, suggested that the city’s light industrial zoning did not square with that of a warehouse facility, from which dozens, scores or even hundreds of vehicles might be dispatched on a daily basis, and to which large trucks, including 18-wheelers, would be making frequent deliveries. Dalquest offered a statement to indicate that the city’s light industrial zoning description could be stretched or be interpreted to permit warehouse uses.
Despite his acknowledgment that the facility was going to be some order of distribution warehouse, Spinrad attempted to downplay the intensity of vehicle traffic that use would generate. Indeed, so intent was he in minimalizing that aspect of the operations that were to eventually take place at the site, he may have inadvertently triggered scrutiny of the project that would ultimately lead to its rejection by the planning commission this week, on December 9. A representation made by both Spinrad and city staff at the November 18 planning commission hearing was that the total vehicle trips into and out of the facility per day would be limited to no more than 250. According to statements made during the course of the meeting, the “equivalent total” of vehicles anticipated at the warehouse is 214 daily, including 130 involving passenger cars and 34 involving trucks, specifically six two-axle trucks, eight three axle trucks and a quantity of 20 four-axle trucks, the last of these presumed to be 18-wheelers. That entailed what was for many observers a glaring paradox: How could Spinrad, who said he had no idea of who the eventual tenant at the warehouse would be, they asked, know how little or how much truck and delivery vehicle traffic into and out of the warehouse facility would take place?
During the November 18 planning commission hearing, Spinrad evinced a willingness to reassure the members of the planning commission that the eventual operation at the warehouse, whatever it entailed, would not be an onerous one and would not impinge on the nearby properties. In this way, the 214-vehicle/34-truck limitation claim seemed to have evolved out of an apparent concern with regard to the facility’s proximity to the Harvest and Enclave subdivisions. In a clever ploy at deflection, Spinrad offered that proposed limitation with the caveat that if the operations at the warehouse could not confine themselves to the 250 vehicle trips per day limit, either Yellow Iron Development or the tenant would be willing to be bound by a requirement to return to the planning commission to seek clearance, which might not necessarily be granted, to increase that truck activity. This immediately struck many of those in attendance at the meeting as implausible, and a manipulation of the approval process that was intended to allow a far more onerous degree of activity that would be incompatible with the project’s surroundings than was being openly acknowledged at the meeting. The developer was seeking approval of a project in which the exact nature of the operation and the precise or even approximate number of vehicles it would entail was unknown. The apparent plan was to get the planning commission’s assent for Yellow Iron Development to proceed with the project on the basis of the representation that the eventual operations at the facility would involve only a modest degree of added truck traffic, with a clause built into the project approval that would allow the truck travel into and out of the facility to dramatically escalate once the building was built and the warehouse/delivery operations were in place. The calculation was that the planning commission or city council in the future would not be likely to deny that request for an increase in vehicular intensity if that meant shutting down an operation that was up and running and employing hundreds of drivers and warehouse workers.
While few in the Upland community were focused on the warehouse proposal, the relative handful of people who were had come to the conclusion that Yellow Iron Development and Spinrad were purposefully under-representing the intensity of the future use of the property in an effort to obtain an entitlement for Yellow Iron Development to proceed. Given Dalquest’s experience and level of sophistication, it was highly unlikely that he could have misunderstood the situation or that the necessity of Yellow Iron Development’s tenant engaging in a very intensive use of the property could have escaped him. The circumstance implied that Dalquest and city staff were knowingly going along with the misrepresentation as to the intensity of use at the proposed warehouse, knowing that once operations were at full swing there, vehicle trips into and out of the facility will approach or exceed a thousand per day.
Among those addressing the planning commission on November 18 with regard to the Yellow Iron warehouse proposal was Carlos Garcia, who was elected on November 3 to fill the vacant position on the city council representing Upland’s Third District, in which the proposed Yellow Iron Development warehouse project site and the Harvest and Enclave subdivisions are located. Speaking as an Upland resident rather than in his role as councilman-elect, Garcia told the planning commission he believed the warehouse would have an impact on the neighborhood, and he expressed the view that the warehouse as proposed does not fit the light industrial business park description contained in the city’s zoning code and, as such, is an incompatible use adjacent to a residential neighborhood. Of the truck traffic the warehouse will generate, Garcia said, “There is one way in and one way out,” noting, “We have already seen 18 wheelers on 11^th Street.” Garcia further alluded to the mystery relating to who will actually occupy the warehouse once it is built, saying Yellow Iron Development was “creating a project there, but do we have a tenant? There is nothing solid or concrete. There is nothing to tell us what is actually moving in there, so we can know the impact.”
On November 18, Planning Commissioner Schwary alluded to the disconnect between what Spinrad was saying he was proposing and how the project would eventually prove out once it was built. In this respect, Dalquest appeared to be providing Yellow Iron a certain degree of wiggle room by saying that if it turned out in the future that the eventual tenant needed to utilize the property with a greater degree of intensity than was being conceded that evening, the tenant would be obliged to return to the planning commission to seek permission to intensify the use.
Schwary dryly stated that such under-representations had been made to the planning commission in the past. “We’ve kind of had a crash course on this recently,” Schwary said. He then gave indication that there was, for him, too much vagary in what Spinrad and Yellow Iron were offering, which the eventual tenant at the warehouse would be able to drive, literally, scores or even hundreds of Mack trucks through on a daily basis.
“I think that what needs to be done is to give a clearer, more definitive number for the residents on how many trucks are going to come in,” Schwary said.
Politely, Schwary referenced the somewhat absurd suggestion Spinrad had made in seeking to minimize the intensity of use at the 92,275-square foot warehouse building by referring to it as a “mom and pop” operation, obliquely indicating his skepticism.
“I understand when you don’t have a tenant you don’t know that, but then I hear mom and pop,” Schwary said. “We need to go beyond that.”
Schwary reacted to Spinrad’s statement that he would be able to get the eventual tenant to erect signs near or at the exit from the warehouse property instructing truck drivers not to transit through the nearby residential neighborhoods or the streets adjacent to them.
“You can put ups signs all you want, but we know that truck drivers will just want to get to where they go quickly,” he said. Schwary then asked of the city’s legal counsel, “Can we fine the tenant if these trucks don’t go the route?” That did not provoke a definitive response. Schwary then said, “There is no need for any residents to have trucks go through their neighborhood. I want to see a limit on the amount of trucks, but we can’t do that until we know what kind of tenant you have.”
Though the commission did sign off on the mitigated negative declaration for the project earlier in the meeting, the commission, at Schwary’s prompting, postponed until the December 9 planning commission meeting voting with regard to the development plan review for the project. Still, based upon the comments of the commissioners, including Schwary, approval of the project at the December 9 meeting seemed virtually assured, with Spinrad needing only to flesh out a few particulars with regard to the nature of the operations that would eventually be housed in the warehouse, and provide definite numbers in terms of the trucks bringing material in and delivery vans being dispatched from the warehouse.
The December 9 meeting was held remotely by means of a video/audio hook-up rather than at City Hall, in deference to the recent coronavirus pandemic flare-up. It appeared the project was rapidly advancing toward approval. It was reported that no definite tenant to occupy the warehouse had yet been found, but it was claimed that an assurance could be given to the community with regard to a reduction in truck traffic emanating from the warehouse. The estimation of 214-vehicles, of which 34 would be trucks, operating out of the facility had been scaled back, the commission was told, such that “the project would generate a total of 164 vehicle trips, inclusive of 130 passenger cars and 34 truck trips,” according to a visual display provided by Associate Planner Joshua Winter.  According to that same graphic, “Actual peak hour trips [would consist of] ten passenger vehicles and one truck trips” in the morning and “14 passenger vehicles, three four-axle trucks and one three-axle truck trips” in the afternoon or evening. Staff again recommended that the development plan be approved.
Schwary at once raised the issue of the hours of operation at the facility. The conditions of project approval put forth by staff stated that the hours of operation were not limited.
“It’s not something they were willing or wanting to implement on this project because they don’t want to limit any future tenant,” Joshua Winter, the associate planner for the city who had shepherded Yellow Iron through the application process said of the request that operational hours be limited. “I didn’t want to add that as a burden in getting tenants into the building.”
For observers, the applicant’s unwillingness to specify the hours of operation was an indication that Spinrad had been prevaricating about the intensity of use the project would entail.
Schwary said some order of binding restrictions had to be placed on the trucks.  “It’s not fair to the residents to have trucks going through their neighborhood,” he said.
Momentarily diverting the focus from the hours of operation, Dalquest suggested the city could specify a truck route using instructions to the truck drivers and signage, and employ the city’s code enforcement division and fines to ensure compliance. Winter said that the fines could be imposed on the operator and property owner in addition to the drivers. Schwary countered that it was unrealistic to think that an already thinly staffed and overwhelmed code enforcement division could ride herd on all of the truck traffic emanating form the site. “I want to make sure we do everything possible to make it less of a burden on the residents,” Schwary said. ” So, I want to make sure on the front end the applicant is aware that there is going to have to be some kind of compromising operations to make sure the residents are protected to a degree.”
Upon the public hearing portion of the meeting being initiated, there was some interchange between the members of the commission and Spinrad that dwelt for the most part on the adjustments to the building design and landscaping in which the general tenor of Sprinrad’s cooperative attitude with regard to the commission’s suggestions seemed to presage approval of the project.
The proponent’s prospects turned, however, when Spinrad made the assertion that “The project is a CEQA [California Environmental Quality Act] exempt site,” stating that the project was consistent with the general plan and the city’s zoning code, was contained within a five-acre site, was not a habitat for any endangered species, that approval of the project would not result in any significant effects relating to traffic, noise, air quality or water quality; and that the site would be adequately served by all required utilities and public services. Spinrad expressed his belief that Yellow Iron Development had gone beyond what was required in terms of subjecting the project proposal to the mitigated negative declaration process, which he suggested was superfluous since the project was exempt from the California Environmental Quality Act. This ran counter to the overarching attitude of many of the city’s residents who had taken an interest in the project. Spinrad’s faux pas in making that assertion appeared to trigger an attitudinal change on the part of the commission.
 Inadvertently, Spinrad in referencing the project impacts with regard to traffic and noise, while confidently assuming those issues had been safely put to bed, stepped on a landmine. Somewhat arrogantly, Sprinard said, “Out of an abundance of caution the MND [mitigated negative declaration] was put together and there are no significant environmental impacts.”
Spinrad was at something of a disadvantage. In providing noticing for the project application and the November 18 planning commission hearing on the project, according to Winter, between 15 and 20 homes in the Harvest subdivision had been provided with an alert that the discussion and possible action with regard to the approval of a warehouse proposal was to take place. When no residents from the Harvest neighborhood had shown up on November 18, the proponents for Yellow Iron’s project took that as an indication that there was no opposition to the project to speak of, which Spinrad this week bootstrapped up into his assertion that there were of no significant environmental impacts from the project as proposed. No further official noticing of the pending approval of the project at the December 9 meeting was given, and Spinrad anticipated that once more there would be no reaction from nearby residents. What Spinrad did not know was that between the November 18 meeting and the December 9 meeting, flyers and other informational materials relating to the project proposal had been distributed to 228 households within the Harvest neighborhood, accounting for virtually all of the completed and occupied single family units there.
While Spinrad said Yellow Iron was amenable to inserting restrictions into the leases for the warehouse notifying operators of the penalties to be imposed on those operators, trucking companies or truck drivers for utilizing any other immediate routes to the warehouse other than 11^th Street or for idling their engines, he drew the line at imposing restrictions on the facility’s hours of operation.
“What are your proposed hours of operation?” Schwary asked.
“We intend to follow the required hours of operation during construction and once complete, you know, and operational, we need to maintain the ability to have 24/7 operations,” Spinrad replied.
“The problem I have with that is that we can’t have trucks coming in at two or three in the morning, with lifts going on and off, and I don’t care what the decibels are, there’s got to be some kind of deterrent to [protect] the residents of the area,” Schwary said. “Are you telling me that if you don’t get a 24/7 applicant instruction, a 24/7 window, that’s a deal-breaker for you?”
“Yeah,” Spinrad said. “I think the city through code enforcement has the ability to address any noise issues, and I don’t think there will be any. So, that’s important to us.”
“So, if you were living in one of those houses, and a truck came down that street at 2 a.m., regardless of whether it was within the noise levels or not, you wouldn’t be upset?” Schwary asked. “You wouldn’t be frustrated?”
“If it was within the noise level, I don’t think I would,” Spinrad responded. “I think I’d be asleep.”
“Okay,” Schwary said.
Commissioner Serge Mayer took up the issue of nighttime operations.
“When we look at the total number of trip generations in the summary, you’re able to say specifically that you’re only going to have one truck at the a.m. peak hour, and you’re only going to have three trucks at the p.m. peak hours, and you’ve got a total of 34 for the day,” Mayer said. “So that’s going to be 29 more trucks coming during the day. If we approve this as it its, you could have 29 trucks coming at midnight and be fully operating within the basis of what we’re approving here, and I don’t feel good about that. Are you at least able to give us something like, you know, 20 percent or ten percent of these may be in the evening, but no more than that?”
“I think we’ve made a pretty good faith effort on all of these conditions, and hours of operations is not something we are really prepared to limit,” Spinrad said. “It’s too limiting.”
Schwary jumped in once more. “With all respect to you guys, you don’t even know who your tenant is yet, so you don’t know, like Commissioner Mayer pointed out, they could be coming, the majority of them, between ten and twelve at night or ten and 2 in the morning, and whether it be one truck or two, you have no way of knowing, unless you already know who the tenant is. But if you don’t know who the tenant is, you have no way of being able to address that. We have a responsibility to look at that. I am of the opinion that because of the residential proximity, we have to have hours of operations limited.”
Asked by Chairwoman Aspinall if Yellow Iron Development would “walk away” from the project if it were subjected to a limitation of the tenant’s hours of operation, Spinrad said, “I think that what we did is a conservative study, based on the square footage of the building and the anticipated use, and I don’t think it is uncommon to build a building without knowing who the tenant is. I don’t know who the tenant is, but I really want to push against limiting who that tenant could be based on cutting operational hours. We have a limit on our trips already. So, 34 truck trips – 17 in and 17 out – so, we’re not talking about a big impact. Typically, these types of tenants, they don’t want to be travelling during the peak hours, and so they will want to avoid the peak hours.”
Aspinall sought to forge some order of compromise. “If we were limiting this as a condition to, let’s say, I think Commissioner Mayer threw out 20 percent, between the hours of 10 p.m. and 7 a.m., you find that unreasonable?” she asked.
“I just find it unnecessary,” Spinrad responded. “I think there’s already a mechanism to address this.”
“Okay,’ said Aspinall.
Statements from the public were then heard. Thirteen individuals expressed objections to or opposition to the project. Five construction union members expressed support for the project.
One resident of the Harvest neighborhood whose name phonetically approximated Kevin Salvacoeur, asked the commission, “Would you want this warehouse across the street from your home?”
Harvest resident Vivian Rusk said “I’m very concerned about… the increase in the truck traffic, truck usage, the times of the truck usage, the congestion, the noise, the air pollution, and now the applicant wants the trucks to come in 24/7. I’m concerned about us as a community and how it will affect our quality of life. I’m concerned about our children when school starts again, and the trucks going by.”
The union members said that Yellow Iron was a “responsible” company, and that the project would provide local jobs for construction workers, give apprentices on the job training, and would boost the economy. They encouraged the commission to approve the project.
Harvest resident Bob Wagner, said, “Based on what I have heard so so far from tonight’s meeting, I am totally opposed to this project, and I cannot believe that the City of Upland would grant residential permits to build 220 or 300 homes and then later permit something like this right next door.”
Lois Sicking Dieter suggested to the commission that using a mitigated negative declaration rather than an environmental impact report for the project was improper.
Timothy Cotran, a homeowner at the Harvest subdivision, said, “I believe that when these residential communities were approved and built, the minute those were approved, the zoning of the surrounding area should have been reconsidered to prevent developers from coming in and building incompatible structures alongside the residential. We’re fitting a square peg into a round hole over here. It’s just not the right spot for this project.”
Christina Cotran said, “Children will use this street – 11^th Street – to walk to Cabrillo Elementary [School], which is less than a mile away, To have trucks 24/7, really with no regulation, up and down this street is a safety hazard that hasn’t been discussed. It would be ideal to consider moving this development to an area where there are not residents so close in proximity that they suffer the consequences.”
Harvest resident Karina Jane Scribner said, “I was under the impression that we were developing this area to make this area to be residential and we are moving toward an industrial setting. This is where we live. Our quality of life will be greatly affected. I think this is just not the right location for a warehouse.”
After the proponent and resident input was concluded, a discussion between the commissioners took place.
Commissioner Mayer indicated he would be able to approve the project only if it were subject to conditions the applicant was at this time not willing to accept. “I would be more favorable to a condition that would limit the amount of trucks during the evening,” Mayer said. “I understand there are emergencies that happen, maybe a couple here or there. But I want to be assured it’s not a complete night operation.”
Commissioner Caldwell said, “I have serious concerns with this project. I believe it is not compatible with the existing housing and the future housing.” She said the “intensification” of the industrial/warehouse operations in the area with the development of new housing “is unacceptable.”
Chairwoman Aspinall made a motion to approve the project as it was submitted in the resolution presented in the agenda for the meeting. No second of the motion ensued, and the motion died.
A motion by Commissioner Anderson was made and seconded by Commissioner Grahn to approve the project as proposed with conditions of approval, including a wrought iron fence and enhanced landscaping around the facility, no idling of the trucks at the facility and no more than 20 percent of the truck traffic coming into or going out of the warehouse in the hours between 11 p.m to 5 a.m. That motion failed, with Anderson and Grahn in favor and commissioners Aspinall, Schwary, Caldwell, Shim and Mayer in opposition.
Schwary then made a motion to deny approval to the development plan for the project. It was seconded by Anderson, with Commissioner Caldwell adding a declaration that “The proposed design will be materially detrimental to the public health, safety or welfare or be injurious to the property improvements in the vicinity of the proposed project.” She further referenced “traffic, a dangerous situation  with conflicts between pedestrians and trucks, the noise, hours of operation.”
The commission voted 6-to-1, with Grahn dissenting, to deny the project approval.
-Mark Gutglueck

Moving swiftly to fill the gap amongst them as a result of Joe Baca, Jr.’s election as Fifth District supervisor on November 3, Rialto City Councilors this week appointed Karla Perez to the city council position Baca vacated to move up the political totem pole.
Instead of seeking applicants or holding a special election that would cost the city as much as $700,000, the council opted to make a selection from those who have evinced an interest in leading the city.
Mayor Deborah Robertson suggested and nominated Stacy Augustine, who was the first runner-up in this year’s election behind re-elected council incumbents Rafael Trujillo and Andy Carrizales. Ultimately, however, the council came to a consensus on Perez, who in 2018 was the third place finisher behind Baca and Councilman Ed Scott.
-Mark Gutglueck

Trees in the Angeles National Forest and the San Bernardino National Forest within San Bernardino County are still at risk from the goldspotted oak borer.
The insect, known scientifically as agrilus auroguttatus, is an invasive beetle native to southeastern Arizona that can kill oaks native to California.
The goldspotted oak borer produces D-shaped exit holes on infested trees.
The first discovery of goldspotted oak borer in San Bernardino County was in the Oak Glen area in the fall of 2018. In October 2018, it was detected in recently-killed California black oak trees, quercus kelloggii, in the unincorporated San Bernardino County community of Wrightwood, very close to the border with Los Angeles County. There was a subsequent infestation found in the Sugarloaf area of Big Bear in the summer of 2019, followed by one in the nearby environs of Moonridge. It is believed that the spread of the goldspotted oak borer to this area resulted from borer-infested oak firewood being brought into the forest.
Officials are urging the public to take critical precautions to avoid transporting infested oak firewood to other uninfested areas.

Barely four years after she was first elected, Blanca Gomez finds herself the dean of the Victorville City Council.
And after years of the Republicans being on top in the High Desert’s largest city, the Democrats are in ascendancy there, in no small measure because of the inroad Gomez made in 2016, and which other members of the party built upon in 2018 and in this year’s election.
Nevertheless, Gomez yet finds herself an outcast from the political feast, a byproduct of her self-styled iconoclasm. Moreover, there is evidence that her political rivals vectored all of their force this week to disenfranchise her from her allies and potential allies on the council.
For decades – more than a generation-and-a-half beginning with its 1962 incorporation – Victorville was either the most stable city in San Bernardino County or among the most stable. The city was initially led by Joseph Campbell, the scion of one of Victorville’s premier families, in the 1960s and early 1970s. Upon Campbell being appointed to a judgeship by then-Governor Ronald Reagan in 1972, Terry Caldwell, an attorney who was something of Campbell’s protégé, was moved onto the city council from the planning commission. After an interim of acclimating himself to the role, Caldwell became the political leader of the city, working in tandem with the city’s administrative leader, Jim Cox, who as a young man in 1969 had taken on the post of city manager. Throughout the 1970s, 1980s, 1990s and into the first decade of the Third Millennium, Caldwell and Cox through their sophistication and Republican Party connections, kept Victorville at the forefront among the Victor Valley’s municipalities, outmaneuvering Hesperia to annex prime commercial and sales tax-producing property fronting along the 215 Freeway corridor, Highway 395 and Bear Valley Road. Caldwell and Cox then bested the Democratic Party-affiliated political leadership of Adelanto in capturing annexation rights to George Air Force Base after it was shuttered in 1992.
When Caldwell retired from the city council in 2010, he did so as one of the longest serving continuously elected officials in California at that time. The councils he led were cohesive ones that had little turnover among their memberships, and he maintained that easy camaraderie among its members by the formation of political alliances that kept those members in office for term after term. He also pursued a policy of rotating the mayoralty among council members on a constant basis, satisfying the egos and personal ambition of all involved.
The first fissure in Victorville’s solid Republican political edifice manifested in 2008 when Robert Hunter, a member of Caldwell’s coalition, was challenged by another Republican, Ryan McEachron. Funded by major Republican Party contributor William F. “Buck” Johns, the forces supporting Hunter engaged in a vicious attack upon McEachron in an effort to prevent his election. Ultimately, however, the highly negative campaign against McEachron failed, and he ousted Hunter. Thereafter, even though Johns came to accept McEachron into the Victorville Republican Party establishment, the conviviality among Republicans on the city council began to wane. The 2010 election of Angela Valles, a Republican who developed an enmity toward McEachron and Rudy Cabralles, another member of the Republican establishment who was a longtime member of the city council, led to a further degradation of the political atmosphere in Victorville, and served as an object demonstration to the Democrats that Republicans there were not invulnerable. In 2012, Cox, who had retired as city manager in 1999 and then came back to serve as city manager for two years in 2008 to 2010, ran successfully for the council, and was immediately elevated into the mayoral position, from which he attempted, sometimes successfully and sometimes not, to restore civility to the city’s governance.
In 2016, Gomez was elected to the council, ousting McEachron in doing so. A Democrat among Republicans and unfamiliar with parliamentary protocol and less than deferential to the political hierarchy, Gomez immediately clashed with her council colleagues as well as senior staff, developing a prickly relationship with virtually everyone at City Hall in a way that made Valles, who had left the council in 2014, seem as if she had been Miss Congeniality. Gomez found herself sharply at odds with Councilman Eric Negrete and Gloria Garcia, who had succeeded Cox as mayor in 2014. On occasions, the contretemps between Garcia and Gomez had grown so acute that Gomez was removed from the council meetings. Gomez had run-ins with Councilman Jim Kennedy as well, and on occasion tested the patience of Cox, whose lifelong approach to governance was a study in civility and propriety. When Kennedy was succeeded by Councilwoman Debra Jones, Gomez had a series of dust-ups with her.
Along with Jones in 2018, Rita Ramirez, a Democrat, was elected to the council, displacing Negrete, a sign that the Republican grip on Victorville was slipping. Despite another member of her party joining the council, Gomez made little headway in being able to influence her colleagues, and virtually every cause she championed during her first two years and then her second two years on the council was met with stony silence. Rarely did her motions receive a second, and virtually never did her suggestions of action receive majority support. From 2014 until this year, Garcia maintained possession of the mayor’s gavel, and there was never any serious discussion of rotating Gomez into the ceremonial chairwomanship of the council.
In this year’s election, Cox opted out of seeking reelection. Both Gomez and Garcia vied in the race, which featured a whopping 19 other candidates, such that 21 hopefuls were seeking three positions on the council. Among those competing in the race were the Republicans Negrete and McEachron. Despite the hostility felt toward Gomez by the Victorville political and governmental establishment, she was returned to the council in convincing fashion, finishing second and well ahead of the third place finisher, Leslie Irving, while Garcia, a Republican, lost, as did Negrete and McEachron. Taking first place was Elizabeth Becerra. In this way, Gomez, first elected in 2016, is now the longest-serving member on the council, having been there for two more years than Jones and Ramirez. Of note is that the council, which is now composed of Leslie Irving, Debra Jones, Liz Becerra, Rita Ramirez and Gomez, is entirely composed of women. Furthermore, it now, for the first time in two generations, consists of a majority of Democrats.
In a development that was nothing short of extraordinary, however, and contrary to the tradition in Victorville going back to the beginning of the Caldwell era, no effort at all was made to rotate Gomez into the mayoral slot. When the newly composed council met on Tuesday, not as is the case traditionally in the council chamber at City Hall but by means of an electronic hook-up as a precaution in the face of the worsening coronavirus pandemic, Gomez was locked out of the meeting and could not participate. Thus, when the council took on the task of appointing council officers, including mayor and mayor pro tem, Gomez did not take part in the nomination process nor in the vote. The upshot was that Jones was selected as mayor and Ramirez was designated as mayor pro tem.
One report had it that city staff, which was responsible for the arrangements for the electronic forum for the council meeting, purposefully prevented Gomez from connecting from her remote location to the software program that conducted the meeting.
When the Sentinel contacted Gomez after the meeting by phone, she steadfastly refused to discuss what had occurred, did not explain why she did not participate in the meeting, nor would she confirm that city staff had blocked her from participating. She instead referred all questions to Bobby Borisov, whom she referred to as her attorney. Borisov, however, is not a member of the California Bar, and does not appear to be a practicing attorney. Phone calls to Borisov went unanswered.
-Mark Gutglueck