Residents Dismayed At Fontana And Upland Settling Claims Without Clearcut Show Of Cop Misfeasance

Officials with the cities of Fontana and Upland recently opted to make substantial monetary payouts to claimants alleging police department misfeasance in circumstances where the wrongdoing alleged was less than clear-cut.
In both cases, taxpayers were fleeced because leadership in the respective cities was unwilling to test the oftentimes capricious nature of the court-and-jury system or withstand the confusion of public perception in the face of controversy the actions in question engendered. Nevertheless, the controversy those governmental entities sought to avert has intensified rather than abated because the nondisclosure clauses put into the settlements has heightened rather than diminished public curiosity about the illegitimacy of the backroom dealing their public officials are engaging in.
In Fontana, the parents of a burglar who in February was shot and killed by police after he was caught in the act during a break in and then attempted to flee were provided with a cool $1 million in response to a claim they filed against the city.
Amond Hawkins and Kenisha Kinard, represented by the Law Firm of Douglas Hicks Simplis & Perez, in March lodged that claim against the city based on the death of their son, Daverion Deauntre Kinard.
According to the Fontana Police Department, at approximately 10:30 p.m. on the evening of February 13, 2021, a resident of a home in the 16500 block of Casa Grande Avenue in north Fontana who was not present at the residence was alerted, through a video surveillance and digital relay and notification system, that there was an intruder on his property. The homeowner contacted the police department, which dispatched officers, including one subsequently identified as Johnny Tutiavake, to the Casa Grande location.
Upon reaching the home, the officers encountered Kinard, who had a criminal history involving burglary. An effort to take Kinard into custody failed, and he took flight, heading into a tract of homes under construction south of Casa Grande Avenue proximate to Justin Street and Heinz Way. Officers, having seen Kinard dart into the construction site where they believed he was hiding, summoned back-up assistance, intending to form a perimeter and then converge methodically toward the center of the site to find Kinard and take him into custody.
Before that occurred, however, Officer Tutiavake approached a portable toilet at the construction site and opened the door. As Kinard, who was in the mobile toilet, bolted forward in effort to again elude capture, Tutiavake discharged his service gun once, striking Kinard in the front thorax.
Thereafter, officers attempted to render assistance to Kinard, in vain, as his aorta had been ruptured by the gunshot. He died at the scene.
There was a video of the shooting captured on Tutiavake’s body camera.
A claim against a public agency is considered to be a precursor to a lawsuit. For legal action being pursued in state court in California, claimants must file a claim against a pubic agency within six months of the incident out of which the alleged damage occurred. The public entity can then acknowledge the claim as valid or reject it. Upon rejection of the claim, the claimant has six months to file a lawsuit against the public agency pertaining to the alleged damage.
For reasons that are not clear, the City of Fontana and its police department, which acknowledged shortly after Kinard was shot and killed that he was not armed, has refused to release Tutiavake’s body camera footage of the February 13 incident.
Tutiavake was placed on administrative leave in the immediate aftermath of the shooting, but has since been reinstated to full duty, pursuant to a finding that he acted properly.
At the time of the February 13 incident, Kinard was on a probational release related to a previous burglary conviction, and was avoiding incarceration by having agreed to engage in no further violations of the law and submit to supervision.
In a full and final settlement of Amond Hawkins’ and Kenisha Kinard’s claim, they are receiving $1 million, have dropped their demand that the grainy nighttime video of the shooting be released and that they make no public comment with regard to the shooting nor any comments about the city or the department that might be interpreted as “disparaging.”
The City of Upland has just paid out over half of a million dollars to a woman who was given a temporary and tentative promotion from her senior administrative assistant position in the police department to that of executive secretary to the police chief and then returned to her senior administrative assistant post after the police chief came to the conclusion she did not have the requisite skill to hold the executive secretary slot.
The woman, Luz Elena Barrett, in April 2020 took an unanticipated leave of absence from her post as acting executive assistant to the police chief and the following month submitted a draft civil complaint to the city, threatening to file it in state court. The unfiled complaint contained allegations that Barrett had been the victim of racial/ethnic/gender discrimination. Barrett’s contentions hinged upon her experience during the nearly 22 months she had served in the executive assistant’s post with the department.
Darren Goodman moved into the police chief’s position with Upland, effective July 16, 2018, the first African-American to achieve the rank of police chief in Upland, and one of only a handful of African-American officers to have ever served with the department. Goodman, a graduate of Harvard University’s Kennedy School of Government in 2015, where he studied local and state government executive management, held both a master’s degree in public administration from the University of Southern California and a doctorate attained at USC’s Rossier School of Education.
Goodman was previously a captain with the San Bernardino County Sheriff’s Department, with which his last assignment had been heading the Chino Hills Sheriff Station, where he served as Chino Hills de facto police chief overseeing the sheriff’s department’s provision of contract law enforcement service to the county’s southwesternmost city.
Barrett had begun as a clerical assistant with the department during the tenure of former Police Chief Martin Thouvenell. Thouvenell had departed as police chief in 2005, and over the next 13 years, Barrett had risen to the position of senior administrative assistant in the department, for which she was provided a $55,476.97 salary, $3,107.60 in overtime pay and $4,576.31 in other pay, along with benefits of $39,107.70 for an annual total compensation of $102,268.68 in 2017, the last full year when she was working in the capacity of senior administrative assistant.
Shortly after his arrival in Upland, Goodman promoted Barrett to the department’s vacant executive assistant at the insistence of certain colleagues who felt that the length of her time with the department warranted her promotion.
Barrett’s move into the executive assistant to the police chief post was a provisional one, contingent upon her demonstration of her ability to handle the assignment, whereupon she was to be given the full title of the position. Barrett’s remuneration in 2018, most of the later half of which she functioned as the department’s executive assistant, and in 2019, the entirety of which she was in the executive assistant billet, reflected a relatively modest increase in pay of around $2,000 annually for her having taken on the executive assistant assignment. In 2018, Barrett was provided with a $55,482.50 salary, $4,924.60 in overtime, $4,391.80 in other pay as well as $36,494.56 in benefits for a total annual compensation of $101,293.50. In 2019, Barrett’s salary was $57,586.11, she saw her overtime pay decrease to $395.93 and she was provided with other pay of $4,656.24 along with benefits of $39,299.16 for a total annual compensation of $101,937.44.
According to Goodman, he initially had confidence that Barrett would adapt to and hone the skill set necessary to function within the executive assistant position, and he strove to develop an amicable and trustful relationship with her.
Toward that end, Goodman has acknowledged, he and his family assisted Barrett with personal matters on a number of occasions, which extended to providing her with money to assist her with unexpected expenses beyond what she could afford based on her income. The conviviality that developed between the police chief and his executive assistant was reciprocal, and on occasion Barrett assisted Goodman and his wife in communicating with the Goodmans’ Spanish-speaking housekeeper. Barrett maintains, and Goodman acknowledged, that over a period of four months Barrett communicated by phone with the housekeeper and that on one occasion Barrett traveled to the Goodmans’ vacation home in San Diego County to meet with the housekeeper and translate for him.
Goodman contends that none of Barrett’s assistance to him and his wife was rendered on city time or at city expense, and that to compensate Barrett for her assistance, he had paid Barrett, as indicated in electronic bank transfer records. In addition, according to Chief Goodman, he provided Barrett with a week’s stay at his vacation home free of charge.
Goodman instructed Barrett that it would be best for her not to mention to anyone else at the department that she had stayed at his family’s vacation home.
Ultimately, Goodman came to the conclusion that Barrett, despite her clerical ability and fluency with the Spanish language, lacked the temperament and necessary skills to fulfill the role of executive assistant. He began documenting her shortcomings and, when his efforts to encourage her to better her performance through constructive criticism did not raise her performance to an acceptable level, he notified the city’s human resources department in March 2020 that he intended to return Barrett to her former classification upon the termination of her probationary period. Goodman maintains that Barrett either overheard his conversation with the city’s human resources director about his intention to implement Barrett’s demotion from the acting executive assistant post or that, as the lone member of the police department other than himself entrusted with a key to Goodman’s office, she had gone through papers relating to her planned demotion that were on his desk. The day before Goodman was to inform Barrett about her return to her former classification, she took a leave of absence.
Two weeks later, Barrett lodged a complaint with the human resources department in which she alleged that she had been subjected to mistreatment by Goodman, that she had been forced into working as a translator for him and that he had her do this personal work for him and his family while she was supposed to be working in her capacity as his executive assistant and was on the clock, and being paid as, a city employee. The complaint, a draft of a civil suit, stood as a claim against the city and Goodman for harassment and subjecting Barrett to a hostile work environment, while further maintaining Goodman had engaged in the misappropriation of department assets, that Goodman instructed or ordered Barrett to carry out personal errands for him on city time and that he had her forge a timecard to obtain city payment for the translation work she had done for the Goodman household.
On Friday, June 19, 2020, the Upland City Council, at that point functioning at four-fifths strength because of the resignation of former City Councilman Ricky Felix in May 2020, held a hastily-called closed-door meeting with then City Manager Rosemary Hoerning at which the tentative complaint against the city filed by Barrett was a topic of discussion, extending to what the council’s reaction should be. A suggestion, pushed by Hoerning, that some form of discipline should be directed against Goodman was considered but rejected in short order, as doing just that might be construed as an admission of the accusations contained in Barrett’s complaint. No authorization for any direct action was given. Three days later, on Monday, June 22, 2020, Hoerning, acting solely upon her own authority and with the backing of then-Mayor Stone, placed the police chief on administrative leave, citing the poor judgment exhibited by Goodman in his dealing with Barrett. When contacted by the Sentinel late in the morning of June 22, 2020 and queried about the suspension, Councilman Rudy Zuniga said he had not been informed in advance that it was going to take place. Councilwoman Janice Elliott likewise said she had no inkling of the action before it was announced. Zuniga and Elliot said there had been no authorization of the suspension in any vote taken.
A firestorm of protest among a cross-section of Upland citizens at what was perceived as a move toward sacking Goodman manifested. Virtually overnight, hundreds of lawn signs expressing support for Goodman were posted in neighborhoods all over Upland. Residents buttonholed and harangued the city council over Goodman’s suspension.
By June 25, it was widely known in Upland that Barrett’s accusation against Goodman consisted of her contention that she had assisted Goodman in translation and interpretation in his efforts to communicate with his family’s housekeeper, and that she had contended she had carried out that assignment while being paid by the city. Goodman marshaled evidence to demonstrate Barrett had forged the timecard she said supported her accusation.
On June 29, after the city had attempted but failed to prevent the widespread public surfacing of information relating to Barrett’s accusations against Goodman forming the grounds for the police chief’s suspension, Hoerning at the direction of Zuniga, Elliott and then-Councilman Bill Velto, reinstated Goodman.
Barrett, at the urging of her attorney, Bradley Gage of Woodland Hills-based Goldberg & Gage, held off on filing her complaint in Superior Court. Instead, in August 2020, Gage filed with the California Department of Fair Employment & Housing on her behalf a discrimination complaint against the city and Goodman alleging she had been harassed and subjected to a hostile workplace because of her race and/or gender.
Under normal circumstances, the California Department of Fair Employment & Housing will carry out an investigation to determine if a complainant has a prima facie case to proceed to court with, and if so gives the complainant a letter known as a “leave to sue.” The California Department of Fair Employment & Housing did not provide such a letter, but the city folded nonetheless, agreeing to pay out $495,000 to be divided between both Barrett and Goldberg & Gage, and another $50,000 to Barrett for lost wages. The settlement was signed off on by acting Upland City Manager Steven Parker.
Barrett had been on paid leave since April 2020. Between April 2020 and July 2020, she continued to be paid as if she were in the role of executive assistant to the police chief, which provides an annual salary of $57,586.11 plus roughly $40,000 in benefits. From July 2020 until she officially left the city’s employ on June 3, 2021, she remained on paid leave and was paid as if she were functioning in the role of senior administrative assistant, which provides remuneration of about $55,600 in salary, roughly $2,000 less than the executive assistant post, along with another $40,000 in annual benefits.
The settlement agreement, agreed to and signed by Barrett in May, calls for her to receive in addition to the aforementioned $545,000, the pay she was due up to her June 3 resignation, and that she is to forsake any further legal action against the city and Goodman. The pact further requires that both sides are to remain mum with regard to the entire matter. The settlement holds neither side to blame and makes no admission of wrongdoing by any of the parties. Money paid out under the settlement is for “non-economic damages and attorney’s fees.”
In this way, after not working for more than a year, Barrett, along with her attorneys, is to receive a payout equal to more than nine years of her annual salary.
A handful of Upland citizens expressed to the Sentinel outrage over the matter. While some conceded that Goodman should not have entangled his personal and family affairs with one of his subordinates, and that his having done so made rescinding her temporary promotion to the position of his executive assistant awkward, resident after resident expressed the opinion that Barrett’s assertion of discrimination was spurious. The settlement in excess of half of a million dollars that was conferred on her, despite her admission of having fraudulently altered her own timecard, was characterized in numerous ways, including being uncalled-for, a shake-down and a gift of public funds.
Similarly, 16.8 miles to the east, in Fontana, residents there were incredulous that the city’s taxpayers were on the hook for a million dollars to the family of a burglar, given that under California statute and established case law, law enforcement officers are authorized to use lethal force in the apprehension of a fleeing felon who represents a threat to the safety of an officer or a member of the public. Referenced was the department’s determination that Officer Tutiavake had acted properly and was reinstated to full duty as an indication that the shooting was both practically and legally justified, which would have obviated the need to settle the claim brought by Kinard’s parents.
-Mark Gutglueck

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