The effort by Trona-based Searles Valley Minerals to prevent the Indian Wells Valley Groundwater Authority from levying a water replenishment fee on it that the company maintains is compromising its financial viability was dashed by an Orange County judge on Thursday.
Orange County Superior Court Judge Kirk H. Nakamura granted the Indian Wells Valley Groundwater Authority’s motion to dismiss Searles Valley Minerals’ request.
The authority imposed the replenishment fee on major water users throughout its jurisdiction, including Searles Valley Minerals, in January. Searles Valley Minerals, which had already commenced legal action against the authority four months previously, had sought to be excused from paying the assessment, and had not been paying it since the charges were imposed.
The Indian Wells Valley Groundwater Authority is levying the groundwater replenishment fee as part of the ongoing effort by governmental entities in San Bernardino, Kern and Inyo counties to come into compliance with the State of California’s Sustainable Groundwater Management Act. That assessment, Searles Valley Minerals maintains, will drive it out of business.
Among other arguments, Searles Valley Minerals maintains that the joint powers authority formed under the auspices of state law is letting the federal government off the hook by ignoring federal agencies’ consumption of water at the furthest western extension of the Mojave Desert while forcing the private sector to bear the burden of the conservation efforts that are being imposed.
In the face of a four-year running drought, California state officials in 2014 undertook efforts to head off the absolute depletion of the state’s regional water sources. In September 2014, then-California Governor Jerry Brown signed into law the Sustainable Groundwater Management Act, which requires local agencies to draft plans to bring groundwater aquifers into balanced levels of pumping and recharge. That was followed in 2015 by Brown mandating water-saving measures throughout the state.
In response, pursuant to a joint exercise of powers agreement, the Indian Wells Valley Groundwater Authority was formed with Kern County, San Bernardino County, Inyo County, the City of Ridgecrest and the Indian Wells Valley Water District as general members and the United States Navy and the United States Department of the Interior Bureau of Land Management as associate members, with each general member having one voting seat on the authority board and the federal associate members participating in all board discussions, but not having a vote.
The joint powers authority took as its mandate counteracting the overdraft of the aquifer underlying Indian Wells Valley, which lies at the extreme northwestern end of the Mojave Desert and the confluence of the northwestern corner of San Bernardino County, the southeastern end of Kern County and the southwestern extension of Inyo County.
Based upon a survey of water usage patterns undertaken by an engineering consultant, Carlsbad-based Stetson Engineers, the authority and the Indian Wells Valley Water District sought to derive a strategy for both reducing water use in the valley and increasing groundwater recharge to reach a balance of both that will end the overdraft. Several different plans, or models, were contemplated. Basically, the concept was to decrease the drafting of water from the regional aquifer through conservation, increased recycling of water and perhaps the minimization of evaporation, augmented by the importation of water from outside the valley to achieve, no later than 2040, a balance of water coming in with the amount of water usage, such that the depletion of the aquifer will end.
Stetson Engineers was designated the water resources manager for Indian Wells Valley, and the authority’s board in January 2020 passed a tentative proposed groundwater sustainability plan and voted to submit it to the state. Thereafter it made adjustments to the plan, which contained water use limitation elements and water replenishment measures. The plan incorporated a farmland fallowing option as well as an increase in the monthly assessment or fee that was imposed on the extraction of water by major pumpers. That fee had been previously collected to cover the costs associated with the administrative activity of the groundwater authority.
After a survey of water use by well owners both collectively and individually was made, the authority assigned water use allowances to the region’s well owners. Excess use fees, referred to as augmentation fees, were formulated for application to those well owners who pump above their allowances as well as on farmers who go beyond their respective share of the water supply set aside for agricultural usage. Money generated in this way will be used to purchase imported water and pay for the infrastructure needed to bring in the imported water.
One issue complicating the matter is that both the Bureau of Land Management and the China Lake Naval Air Weapons Station, as federal entities, are exempt from the groundwater sustainability plan and the Sustainable Groundwater Management Act, and therefore not subject to the restrictions that will be imposed in the groundwater sustainability plan. The China Lake Naval Air Weapons Station encompasses two ranges and totals over 1,100,000 acres or 1,719 square miles, much of that within Indian Wells Valley. While the China Lake Naval Air Weapons Station has made strides in recent years in reducing its water use, it still drafts some 1,600 acre-feet of water from the aquifer annually.
In September 2020, Searles Valley Minerals, represented by Eric Garner, Jeffrey Dunn and Maya Mouawad with the law firm of Best Best & Krieger, filed a lawsuit in Kern County Superior Court against the Indian Wells Valley Groundwater Authority in an effort to protect what Garner, Dunn and Mouwad asserted are the company’s groundwater rights within the Indian Wells Valley Groundwater Basin, and to stop the collection of what they characterized as an illegal and unfair groundwater replenishment fee and a tax disguised, they assert, as an “extraction fee.”
Searles Valley Minerals uses solution mining, which involves soaking portions of the company’s dry Searles Lake in San Bernardino County with water to precipitate brine which is then extracted and processed to produce boric acid, sodium carbonate, sodium sulfate, several specialty forms of borax, and salt.
The groundwater replenishment fee, Garner, Dunn and Mouawad maintained, is unprecedented and exorbitant, and will increase the company’s water costs by 7,000 percent or $6 million per year – pushing Searles Valley Minerals out of business after more than 140 years of operation, and threatening the livelihood of the company’s 700 employees. The groundwater replenishment fee ignores and violates Searles Valley Minerals’ adjudicated water rights, according to the lawsuit.
Searles Valley Minerals’ 91-year-old water rights are the most senior in the Indian Wells Valley Groundwater Basin.
Garner, Dunn and Mouawad took issue with the fashion in which the China Lake Naval Air Station is not subject to the restrictions in the plan nor its fees.
“Searles Valley Minerals’ right to pump water in the basin for domestic uses is senior to any water right reserved to [the] Weapons Station, and because [the] water district’s groundwater pumping began no earlier than 1955, its appropriative right, if any, to basin water remains junior to Searles Valley Minerals’ right,” according to the lawsuit. “The authority falsely asserts in its groundwater sustainability plan that any pumping allocations under the groundwater sustainability plan will be ‘consistent with existing groundwater rights and priorities.’”
In a joint statement, Searles Valley Minerals and Garner, Dunn and Mouawad maintained the groundwater management plan that the authority is attempting to implement “represents an arbitrary and illegal taking of Searles Valley Minerals’ water rights,” and Searles Valley Minerals had been “singled out” by the authority.
Despite the ongoing litigation, in January 2021, the Indian Wells Valley Groundwater Authority undertook to collect groundwater replenishment fees from all well owners within its bailiwick. Citing the contentions in the lawsuit it had already initiated, Searles Valley Minerals balked at paying the fee, seeking an injunction from the court to prevent the Indian Wells Valley Groundwater authority from assessing it.
The dispute was removed to Orange County Superior Court, which was considered to be an impartial forum, since there are entities in San Bernardino, Kern and Inyo counties which have a direct interest in how water conservation measures are going to be applied by the Indian Wells Valley Groundwater Authority. Searles Valley’s legal action was one of two similar legal pleadings, the other one having come from an agricultural company, Mojave Pistachios.
Both Searles Valley Minerals and Mojave Pistachios have been pumping water since January without paying the fee to the Indian Wells Valley Groundwater Authority.
More than three months ago, on May 25, both Searles Valley Minerals and Mojave Pistachios suffered a setback when Judge Nakamura ruled that their legal actions contesting the imposition of the fee did not give them the right to excuse themselves from paying the assessment. This was summarized in the language “pay first, litigate later,” an applicable principle which prevails when the lawfulness of a tax is being contested. Both companies would need to live with the imposition of the assessment while their legal action contesting the fees are pending in the court, Judge Nakamura ruled. If the court indeed determines that the fees should not be imposed on them, they will be provided a refund at that time. Nakamura on May 25 held that a “delay in implementing the groundwater sustainability plan will cause further harm to the basin, increase the cost of imported water, and continue to damage shallow wells throughout the basin.” The judge reasoned that the replenishment fees were being used to remedy the overdraft in the basin by paying for the importation of water, which was helping to prevent shallow wells from drying up.
In his ruling yesterday, Judge Nakamura cited his May 25 ruling in ordering both Searles Valley Minerals and Mojave Pistachios to begin paying the fee forthwith. Essentially, if the two companies are to continue to pump water, they must pay the fee that the Indian Wells Valley Water Groundwater Authority has levied. In the Searles Valley Minerals case specifically, Judge Nakamura held that the “pay first, litigate later” principle applies to both local and state taxes and fees.
Referencing California Water Code, section 10726.6 subsections (c) or (e), Judge Nakamura ruled there was nothing in the law that authorized the suspension of tax payments as the result of ongoing litigation calling the tax’s or assessment’s applicability into question.
Nakamura stated, “[T]he pay first principle is explicitly included in subsection (d) where it instructs that the fee may be paid under protest and states, ‘Payments made and actions brought under this section shall be made and brought in the manner provided for the payment of taxes under protest and actions for refund of that payment.”
Neither Searles Valley Minerals nor Mojave Pistachios established that the imposition of the water replenishment was tantamount to unconstitutionally abridging either parties established water rights, Judge Nakamura found.
The community of Trona, which lies at the westernmost extreme of San Bernardino County, presently has a population of 1,900 and has been piggybacking on Searles Valley Minerals for the provision of domestic water. The groundwater management plan will transform Trona into a ghost town, according to Garner, Dunn and Mouawad.
“…all domestic and municipal activities for the disadvantaged Trona communities are supplied by groundwater that Searles Valley Minerals pumps from the basin,” according to a joint statement from Searles Vwlley Minerals and Garner, Dunn and Mouawad. “The economic impacts of the authority’s fee will devastate the Trona community.”
The authority’s decision to impose hefty new “replenishment fees” on the valley’s civilian water users while providing no check on other major groundwater users in the basin such as the China Lake Naval Air Weapons Station is indefensible, Garner, Dunn and Mouawad contend.
“Searles is a pillar of the Trona and Ridgecrest communities, providing jobs and economic benefits to these communities since we were founded in 1873,” said Burnell Blanchard, vice president of operations for Searles Valley Minerals. “We’ve maintained our workforce through natural disasters, a global pandemic and the subsequent economic crisis. Now, we face the threat of closing our doors and putting hundreds of people out of work because the authority has refused to recognize our long-established groundwater rights.”
According to the lawsuit filed a year ago by Searles Valley Minerals, which exists in the form of a petition for a writ of mandate, a complaint for declaratory and injunctive relief and a takings claim under the California Constitution, “An actual controversy has arisen and now exists as to whether the authority’s adoption of the groundwater sustainability plan, sustainable yield report, engineer’s report, extraction fee and the replenishment fee constitute an unlawful taking of property for public use without just compensation.”
The suit calls upon the court to make a finding that the “authority attempted to determine Searles Valley Minerals’ water rights in a way that is inconsistent with applicable law.” If, the suit says, “the court finds that the authority’s actions did not deprive Searles Valley Minerals of all economically beneficial use of their groundwater rights as alleged, then Searles Valley Minerals alleges in the alternative that the authority committed an unlawful physical taking by erroneously deeming the entire basin’s sustainable yield to be reserved by the Weapons Station, and then putting that groundwater to public use without compensating Searles Valley Minerals. What the authority claims as a transfer of federal reserved rights is in reality an unlawful taking of Searles Valley Minerals’ groundwater rights. Because the basin groundwater given to the Weapons Station will be physically unavailable to Searles Valley Minerals due to [the] authority’s adopted groundwater sustainability plan, sustainable yield report, engineer’s report and replenishment fee, this claimed transfer and its related actions constitute a physical taking.”
According to the joint statement by Searles Valley Minerals and its lawyers, “The authority’s ‘sustainable’ groundwater management plan is anything but sustainable – it’s a significant new burden on a select few groundwater users that will push many entirely out of operation without any regard to existing water rights.”
-Mark Gutglueck

By Larry Kinley
This week, the Upland City Council is not only considering making a final selection among a number of applicants to serve our city as city manager, but two of its members are also determining in conjunction with a consultant how much this next city manager is going to be paid in salary, perks, and benefits in addition to the pension he or she is to receive, which in the end is determined by a California Public Employees’ Retirement System formula that takes into account the highest salary paid to that manager throughout his or her career.
Right now is as appropriate of a time as any for me to share my thoughts on the issue of what we are paying our city officials, in particular our city managers. I do not think it is too bold, nor do I think it unreasonable, to state that I do not believe any manager of the 482 cities and incorporated towns in the state should be provided with compensation greater than that which is paid to California’s governor.
Let me explain the reason I feel this way.
The city manager of Upland has nowhere near the span of responsibility as our state’s governor. Upland has a population of 77,754, according to the 2020 Census. California’s population, as counted during the same census, was 39,538,223.
Upland is a wonderful city, and it has many things that recommend it as a great place to live. It has a wonderful hospital, a top-flight school district and a general aviation airport. It is host to the corporate headquarters for Lewis Homes, Cherokee Wood Products and ISDG Security Systems. The San Antonio Water Company and other water companies have joined with the city to provide us with quality water. Upland has some of the nicest residential neighborhoods in San Bernardino County. Euclid Avenue is the city’s showcase. South of Foothill Avenue, it is lined with classic Craftsman-style and Edwardian homes that date from the early part of the 20th Century. North of Foothill, Euclid on its east and west sides is host to increasingly impressive dwellings that evolve into mansions. With its distinctive urban forest median that includes the Madonna of the Trail, Euclid offers a breathtaking vista that terminates at the Foothills below Mount San Antonio. Upland is populated by hardworking and good people.
163,696-square mile-California comprises everything that 15.65-square-mile-Upland does, and much more. California’s geographical size ranking among the 50 states of the Union puts it in third place, exceeded only by Texas and Alaska. It boasts San Diego, Los Angeles, Santa Barbara, San Jose, San Francisco, Sacramento and Redding within its confines. It has 840 miles of coastline, 33.4 million acres of forest and 42 mountains with peaks higher than 10,000 feet. California’s population represents 11.6 percent of that of the United States. Encompassing 58 counties in which there are a total of 3,320,977 businesses, if California were a country it would have the fifth largest economy in the world, behind the United States, China, Japan, and Germany, and ahead of India, Great Britain, France, Italy, Brazil, Canada, Russia, South Korea, Australia, Spain, Mexico, Indonesia, the Netherlands and Saudi Arabia.
To suggest that the governor of the State of California merits less pay than the city manager of Upland falls outside the scope of rationale thinking. Yet, that is the case. Our governor is provided with a salary, before benefits, of $209,747. Rosemary Hoerning, before she was asked by our city council to leave in March, was being paid $236,900 per year in salary.
This defies common sense. I don’t see how any city can justify paying its city manager more than the State of California is paying its governor, and I challenge any city manager of any city in the state to debate me on that topic.
People should note that the loss to the taxpayers represented by overly generous salaries to city managers does not end with the paychecks they are receiving. Overpaying those serving at the top of a city’s managerial echelon causes inflation at the levels below that. Paying city managers too much money results in runaway salaries for municipal department heads such as the director of development, the finance director and the director of public works. And then those working in those departments are also being overpaid because a city’s pay scale is out of balance.
Paying too much for city personnel in Upland, where the employees have already been reduced to a four-day work week, has resulted in a reprioritization in how municipal money is spent. Cities exist for the provision of municipal services. Cities exist so we have police departments to keep the streets from being overridden with crime, so we have fire departments to put out fires, so our streets are paved regularly to prevent potholes, so we have quality and safe drinking water when we turn on the tap, so our traffic lights work and so our parks are maintained and our streetlights come on at night. City Hall’s priority is no longer the provision of those services but making sure that our city employees are well paid, which means they receive compensation that is well above that paid to workers in the private sector for comparable work. If a city keeps spending money on high salaries, pretty soon the quality and integrity of those services diminish and, eventually, the reason for the city’s existence is defeated.
I would like to see a proposition go before the voters of California asking if they believe that it should be written into law that a city manager cannot be paid a higher salary than the governor. I think that proposition would pass. I don’t have the time, energy or wherewithal to qualify a proposition like that for a statewide ballot, so I think I will instead work at the local level to see if we can put a measure on the ballot just for the voters in Upland to find out if they support putting a cap on the city manager’s salary of no higher than what the governor is paid. After all, I think it is only fair that the residents of Upland, who are the ones paying the salaries of everyone down at City Hall, have a direct say in how much those people get paid. I think that is an understandable concept most residents will agree with.
In the meantime, if the city council is going to consent to paying the city manager a salary of more than $209,747 annually, I think there should be a requirement that the mayor, each member of the city council and the city manager explain to the people of Upland why they think the city manager deserves to make more money than the governor of the State of California.
Larry Kinley was formerly a vice president of the Bank of America. He oversaw for more than 15 years that institution’s problem loan department. He was Upland’s elected treasurer from 2016 to 2020.

Former Upland City Manager Jeannette Vagnozzi, whose promotion to the top spot at Upland City Hall was made with the support of three lame duck members of the city council in their last official act as officeholders after an angry electorate had banished them from office in November 2018, has sued the City of Upland over the way in which she claims she was treated in the months prior to her May 2019 firing.
A group of Upland citizens had appealed to Vagnozzi in the days and hours before the city council hired her on November 26, 2018 to decline the outgoing city council’s elevation of her to the city manager’s post and instead give what was then to be the incoming city council the option of either selecting her to serve in the city’s top administrative post or keep her as assistant city manager. Vagnozzi, saying she could not risk her future on the whim of three new council members she did not know, accepted the appointment as city manager, despite it being tainted by the consideration that three of those who chose her would not be in office upon her assumption of the position. As it would turn out, Vagnozzi’s show of distrust and what was interpreted as a lack of respect for four of the council members under whom she thereafter served as city manager doomed her to an abbreviated tenure in office.
What proved out to be Vagnozzi’s misplacement in the role of Upland City Manager played against a backdrop of action and political miscalculation on her part in the months before her promotion to city manager and further miscalculation and action taken in the months after she assumed the city manager role.
In March 2018, the city, led by then-City Manager Bill Manis, Vagnozzi as assistant city manager and Martin Thouvenell who was then the city’s management consultant and advised by then-City Attorney James Markman, quietly moved to sell off 4.631 acres of Memorial Park to San Antonio Hospital for use as as a parking structure, at first giving no clear reference to the property to be sold as parkland while providing the public with a mere 96 hours notice that the sale was to be voted on by the city council. Then-Mayor Debbie Stone and council members Gino Filippi and Carol Timm supported the sale. Councilman Sid Robinson abstained from the vote, not supporting the sale but taking no action to oppose it. Councilwoman Janice Elliott voted against making the 12 percent reduction to the city’s landmark park, the largest in the city.
A firestorm of controversy ensued, as the vast majority of Upland’s citizenry who had any opinion with regard to the parkland sale opposed it.
Robinson’s constituency in the city consisted in large measure of the parents of children participating in youth sports. Those who had been his political supporters were dismayed at Robinson’s unwillingness to stand up against the council majority and the city’s administration to oppose the sale of the parkland, which included a long-existing Little League  diamond. To remain in office, Robinson would need to vie in that year’s election, the first one in Upland history to be held by-district, and compete in the city’s Second District. Elliott had been elected at-large in 2016 and her term in office was set to expire in 2020. In an effort to ensure her incumbency beyond 2020, at which point she would be forced to leave the council because she was not eligible to run in any district other than the Second, she chose to run in the Second District race in 2018. Robinson, who was at a clear disadvantage for not having opposed the parkland sale, opted out of running,
Both Filippi and Timm were due to stand for reelection in 2016, the former in the newly-created Third District and the latter in the newly-created Fourth District. In the November election, both, unable to effectively defend their votes to sell off the parkland, were defeated. In September 2018, City Manager Manis, seeing the city large roiling with discontent toward him, Vagnozzi, Thouvenell, Stone, Filippi, Robinson, Timm and Markman over the sell off of the parkland, announced his resignation as city manager. Vagnozzi and Thouvenell were tapped to fill in for him temporarily.
After the November 2018 election, in which Elliott was victorious and Filippi and Timm were chased from office effective with the first council meeting in December 2018, the council took up the subject of the city’s managerial future. Thouvenell, who had served in the role of acting city manager from the middle of 2016 after the firing of former City Manager Rod Butler and then all of 2017 until Manis’s hiring that became effective on January 2, 2018, saw the e writing on the wall. He resigned as the city’s managerial consultant before his contract came to an end.
At the last council meeting in November 2018, with Timm across the continent in North Carolina visiting her parents for the Thanksgiving holiday, the city council took up an item calling for designating Vagnozzi as city manager and conferring upon her a three-year contract. From North Carolina, Timm phoned in her endorsement of Vagnozzi. Robinson weighed in, saying he believed Vagnozzi to be the right person for the job. Filippi did the same. Mayor Stone, who was facing the prospect of losing her ruling coalition as soon as Robinson, Filippi and Timm exited the following month, noted that she had supported the hiring of Manis as city manager the previous year over Vagnozzi, who had also applied for the job at that time. Stone said she believed she had made a mistake, and that she now believed Vagnozzi deserved to be entrusted with the city manager’s authority. A significant number of residents weighed in against promoting Vagnozzi to city manager. Among those was Ricky Felix, who had been elected earlier that month to replace Filippi. Felix said he believed it would be best to allow the city council members that would need to work with a new city manager over the next two to four years be allowed to determine whether that city manager should be Vagnozzi or someone else. Undeterred, the council voted to make Vagnozzi city manager, with Elliott dissenting.
In January 2019, Bill Velto, then a member of the planning commission, was selected to serve out the two years remaining in Elliott’s term as an at-large member of the council elected in 2016. Thereafter, in February, March and April the city council began to evaluate Vagnozzi’s job performance during the closed sessions of its regularly-scheduled meetings. Closed sessions are portions of the meeting held outside the view or earshot of the public.
The city council also focused on Vagnozzi’s performance during meetings that took place outside the parameters of its normally-scheduled meetings held on the second and fourth Mondays of every month.
At a specially-called meeting on March 4, 2019, the council had a closed door meeting for the purpose of a “public employee performance evaluation” relating to the city manager. There was no action reported to the public after that meeting.
At a specially called meeting on March 17, 2019, the council had a closed door meeting for the purpose of a “public employee performance evaluation” relating to the city manager. There was no action reported to the public after that meeting.
At a specially called meeting on April 29, 2019, the council had a closed door meeting for the purpose of a “public employee performance evaluation” relating to the city manager. There was no action reported to the public after that meeting.
The constant monitoring of her performance and the disclosure that such a dialogue about her performance was taking place during both regularly scheduled and specially-called council meetings riled and concerned Vagnozzi. She retained the Woodland-Hills-based law firm of Goldberg & Gage, which specializes in representing public employees against public agencies.
While Goldberg & Gage had moved to the conclusion that Vagnozzi had been or was in the process of being terminated, that was not the case. She remained as city manager, and there was, as of that time, no clear consensus that she should be fired. She yet enjoyed the unequivocal support of Stone. Moreover, Velto believed it would be nonproductive to jettison Vagnozzi, and he remained committed to working with her. Felix, likewise was unwilling to fire Vagnozzi without some clear indication or evidence that she had been remiss in her duty. Elliott, who had an unpleasant experience during Thouvenell’s tenure as acting city manager in 2017 when she had been ostracized by Stone, Robinson, Filippi and Timm and ultimately censured, and Rudy Zuniga, who had replaced Timm, were somewhat less favorably inclined toward Vagnozzi, but still not entirely sold on cashiering her.
On May 2, 2019, Goldberg & Gage filed with the State of California’s Department of Fair Employment and Housing a discrimination complaint on Vagnozzi’s behalf. In a rapid turnaround, the State of California’s Department of Fair Employment and Housing on the same day sent to Vagnozzi, in care of the Goldberg & Gage firm, a document known as a notice of case closure and right to sue. That letter stated that because Vagnozzi, through Terry Goldberg, had requested an immediate right to sue, the State of California’s Department of Fair Employment and Housing would not itself pursue an investigation of the alleged discrimination but rather had cleared Vagnozzi to pursue a lawsuit against the city in a California court of competent jurisdiction. The letter stated that Vagnozzi had one year to file such a civil action from the date of the letter. Moreover, according to the letter, if Vagnozzi intended to pursue a case against the city for discrimination in federal court, she would need to seek a federal right to sue letter within 30 days of receiving the May 2 letter or within 300 days of the alleged discriminatory act, whichever came earlier.
On May 7, 2019 Upland City Clerk Keri Johnson was notified by a letter from the Goldberg & Gage firm dated May 6 that Vagnozzi had obtained a right to sue letter from the State of California’s Department of Fair Employment and Housing.
Vagnozzi’s already delicate situation escalated to the next level with the council’s discovery that Vagnozzi was on the brink of suing the city. If Vagnozzi had any hope of getting fully on track as city manager, she needed the trust of the city council. Putting herself in a circumstance where the council was flinching at the prospect of being sued made that nearly impossible. It only grew worse from there.
Vagnozzi subsequently acknowledged that Goldberg had “overstated” her beef with the city. Stated more directly, Goldberg outright misrepresented circumstances that made any sort of rapprochement between his client and the Upland City Council unachievable. In the document he filed on Vagnozzi’s behalf with the California’s Department of Fair Employment and Housing, Goldberg maintained “on or about April 29, 2019,” the City of Upland, meaning some individuals employed by it, acting on its behalf or otherwise associated with it, “harassed” Vagnozzi.
Vagnozzi was the victim of intolerance vectored her way, Goldberg propounded, based on her “religious creed, dress and grooming practices, sex/gender, medical condition (cancer or genetic characteristic), age (40 and over), marital status,” and other issues associated with her being a “member of a protected class.”
Goldman suggested Vagnozzi was the object of the harassment and derision because of prejudice. He reiterated that Vagnozzi “was discriminated against because of complainant’s religious creed” which he said “includes dress and grooming practices, sex/gender, medical condition (cancer or genetic characteristic), age (40 and over), marital status, association with a member of a protected class and as a result of the discrimination was terminated, asked impermissible non-job-related questions, denied a work environment free of discrimination and/or retaliation, denied any employment benefit or privilege.”
Vagnozzi was also mistreated because she did not go along with the attitude she encountered, Goldberg said.
“Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment and as a result was terminated, asked impermissible non-job-related questions, denied a work environment free of discrimination and/or retaliation, denied any employment benefit or privilege.”
Additionally, according to Goldberg, Vagnozzi “has suffered discrimination, retaliation, and harassment based on her protected characteristics/activities.”
In addition to Goldberg’s complaint erroneously asserting that Vagnozzi had been terminated, it also inaccurately stated that Vagnozzi resided in Woodland Hills. In fact, Vagnozzi was a resident of Rancho Cucamonga.
All five members of the council, including Mayor Stone, who had previously been firmly in Vagnozzi’s corner, were taken aback by Goldberg’s assertions. For them, Vagnozzi’s religious practices had never been an issue. Four, in fact, did not know what Vagnozzi’s religion was. Nor had they any feelings one way or another about her sexual orientation or in-depth knowledge of her personal life. Goldberg had implied that Vagnozzi was a lesbian. This hit a discordant note with the entirety of the council, none of whom had ever discussed or mentioned or even contemplated her sexuality. Felix in particular, a Mormon with three daughters, felt blindsided by Vagnozzi’s injection of the topic of her sexuality into the workplace. Unaware of her preferences and equally unaware of any discrimination that had been leveled against Vagnozzi as a result of that preference, Felix strongly resented her making an issue of her sexuality at all.
Word spread quickly through Upland that Vagnozzi was accusing the city council of discriminating against her because she was sexually active with other women.
At its regularly scheduled May 13 meeting, the city council was set again to take up the subject of the city manager’s performance. The agenda for that item differs from the three previous scheduled discussions in that it calls for a “performance evaluation and consideration of public employee dismissal” relating to the city manager. The previous council agendas pertaining to the evaluation of the city manager’s job performance had not mentioned termination. The change was a sign that the entire council, including Stone, was entertaining Vagnozzi’s dismissal.
At that point, Vagnozzi seemed to recognize she and her legal team had made a serious miscalculation. She attempted to walk back what Goldberg had done on her behalf. In the three days before the council meeting, she sought to minimize the significance of the filings Goldberg had made on her behalf, suggesting that she was only taking prudent legal precautions and was not necessarily going to sue the city. “I have a right to representation, and I have retained a lawyer to make sure I am represented,” she told the Sentinel.
She acknowledged there were some inaccuracies in the way in which Goldberg had characterized her claims against the city, and she indicated that there had been poor communication between her and Goldberg.
The inference that some had drawn that she was claiming she had been ostracized because of her sexual orientation, her manner of dress or her religion was inaccurate, she said. Still, she acknowledged, the documents Goldberg had lodged with the State of California suggested that was the case. “Perhaps he [Goldberg] confused me with another client,” Vagnozzi said. “I am not homosexual and do not actively have any sign of cancer though I do receive treatment from an oncologist. I attend a Catholic church. I have not been terminated at this time but have had numerous closed session ‘evaluations.’”
She said she had only recently retained Goldberg. “I am not sure where the responsibility for the miscommunication lies,” she said.
She acknowledged that there was a significant distinction between the evaluations of her performance the council had scheduled at the previously specially-called meetings and the then-upcoming May 13, 2019 regular meeting. “The previous closed sessions didn’t go beyond my performance review,” she said. The inclusion of the terminology “termination” in the agenda for the executive session discussion on Monday, May 13, 2019, she said, was an indication “They are giving themselves that option.”
Indeed, after the city council met in closed session on May 13, 2019, its members returned to the council dais in the council chamber, at which point Markman announced that Vagnozzi had been terminated on a 4-to-1 vote, with Mayor Stone in opposition. No cause was cited in making the termination, which was to be effective one month hence, on June 13, 2019. Nevertheless, Vagnozzi was relieved of her duties and capacity as city manager immediately.
Curiously, Goldberg and Gage waited more than two years, until August 4, 2021 to file an employment-related lawsuit on Vagnozzi’s behalf. The suit does not allege wrongful termination but instead cites discrimination, harassment, failure to accommodate, retaliation and failure to take corrective action.
Given the way in which Goldberg had botched the filing with the California Department of Fair Employment and Housing, which led to Vagnozzi’s actual termination in 2019, Bradley Gage of Goldberg & Gage will be handling Vagnozzi’s case from here on out.
The lawsuit does not dwell on Vagnozzi’s sexuality, emphasizing rather that she was a woman, unmarried, had eclipsed the age of 40 and was a breast cancer survivor. The suit maintains she was subjected to harassment by other city employees and had to endure a hostile work environment.
According to the lawsuit, Vagnozzi, who was the assistant city manager, city clerk, director of administrative services, human resources manager and risk manager before she was promoted to city manager, was not treated as an equal within the city’s senior management division. She was originally hired in 2015 to serve as assistant city manager under then-City Manager Rod Butler. She served as acting city manager for five days after Butler was terminated in July 2016, but was thereafter replaced as acting city manager by Thouvenell. When Thouvenell departed as acting city manager on January 1, 2018, the city did not replace him with Vagnozzi but instead brought in Bill Manis, who had been the city manager of Rosemead, to serve as city manager. She was cut off from the flow of information and prevented from exercising the authority her managerial position normally entailed, the suit claims.
The case has been assigned to Judge John Tomberlin. The suit seeks unspecified amounts of economic compensation due to loss of future earnings, lost pension wages plus monetary compensation for emotional distress.
-Mark Gutglueck