There were double punctuations this week to what has become an ongoing controversy involving Big Bear Lake City Councilman Alan Lee. Despite the council passing a resolution of reprimand against Lee and closing out the tenure of City Manager Frank Rush with a severance agreement which the council said was necessary to prevent a lawsuit based upon treatment Lee had accorded the city manager during the 15 months Lee has been in office, the situation does not appear to have fully resolved itself.
While it was pretty well established that a fair cross section of the Big Bear community shares the city council’s discontent with the sometimes provocative and sometimes reasonable-sounding first term councilman, the jury is yet out on whether a sizable enough contingent of the resort city’s population will swing behind Lee to provide him with staying power and whether he has the political skill and reach to form a political counterweight to the forces that have lined up against him.
Big Bear Lake, with an official head count of 5,303 residents, is the second-smallest of San Bernardino County’s 24 municipalities population-wise and at 6.42 square miles the county’s third smallest city geographically. Located in the eastern San Bernardino Mountains, it is relatively isolated, although it does have neighboring unincorporated communities that boost the greater Big Bear area to a population somewhat greater than 19,000. Nevertheless, much though not all of what goes on in the City of Big Bear Lake stays in Big Bear Lake, such that most of the outside world has not been aware of the contretemps involving the city council.
Lee was elected to the council in 2020, the second election cycle in which positions on the council were selected by district but the first time that a by-district election was actually held, as no challengers of those incumbents seeking to remain on the council emerged in 2018.
Lee took his place on the council dais in December 2020. Before Spring 2021 rolled around, he had already antagonized some members of the local establishment and had proven too aggressive by the standards of some in questioning the performance of city employees.
According to many, Lee is too forceful in seeking to formulate city policy, and has sought to intimidate his council colleagues, city staff and some residents in that effort. He is accused of seeking to bully staff into action at his suggestion alone without getting that instruction ratified by the full council in votes officially taken at agendized council meetings. His council colleagues have protested that he has resorted to threats when they did not positively respond to, vote on and pass items he suggested for consideration. Those threats, they say, consist of him intimating he will place on the ballot a citizens’ initiative to achieve his ends, seek to recall them or run campaigns against them. He has been criticized for seeking the dissolution of the Big Bear Department of Water and Power, a community institution he was previously a board member of. He is equally vilified for advocating a doubling of the city’s transitory occupancy tax, that is, its bed tax or hotel tax, which he also wants extended to homes rented for short periods of time to vacationers. His council colleagues have charged him with, in the words of Councilman Randall Putz, “shameless self-promotion and self-aggrandizing.” He has been accused of filibustering, that is taking up too much time in making comments during council meetings, and for belaboring issues. He has been charged with using public resources to promote what others have said is political activity, of being dishonest and engaging in misrepresentation, outright lies and interrupting others when they are speaking. He has proven hypocritical, criticizing others for the same thing that he does, his detractors maintain. He has sought to opportunistically exploit situations to his own benefit, his critics say, disregarding norms, civility and decency. He is prone to outbursts, his opponents charge, and they say he is possessed of a gallingly know-it-all attitude. Even worse, Lee’s council colleagues and others say, he insists on being disrespectful and disagreeable in taking his positions in opposition to others rather than agreeing to disagree civilly while working toward middle ground and compromise.
To be fair, however, many of the complaints aimed Lee’s way come off as parochial and as self-serving as he is accused of being. The forcefulness Lee is pilloried for engaging in is par for the course in larger jurisdictions, where political enmity is seemingly more cutthroat than anything Lee has devised. Moreover, Lee has sometimes been decried for advocating with regard to what certainly appear to be legitimate issues, and the positions he has taken, at least in some cases, appear to represent the sentiments of a substantial element of Big Bear Lake’s constituency, which in given respects has been overlooked or ignored by the council majority.
In one case, multiple Big Bear Lake residents took issue with the city giving go-ahead to a fourth food market – Grocery Outlet – within Big Bear Lake’s city limits despite what many considered to be an inadequate population to support such an operation, risking failure or a lack of profitability of all four stores. When a handful of residents pressed the issue, the city and city council persisted with allowing the project to proceed. The band of residents sued, prevailing in the matter when the Grocery Outlet proponent threw in the towel and abandoned the project. Lee was fiercely criticized for associating himself, as an elected city official, with those who took legal action against the city, potentially risking taxpayer money. Nevertheless, Lee’s defenders point out, the city was pursuing a questionable goal, and Lee should not be blamed for standing with those who had the determination and courage to resist such an ill-advised course of action.
As a recreational and vacation mecca, Big Bear Lake attracts thousands of short term occupants annually, with arrivals coming in during all four seasons of the year, some more than others. Many of those flocking to the city do not conduct themselves as civilly as some would prefer, and the use of alcohol and recreational drugs by many of them exacerbates the situation, as does the consideration that in most cases there is no easy or surefire way to trace the identity of the misdoers, who hold the advantage of being able to leave, generally without a trace, at once if they so choose. Simultaneously, a substantial number of property owners in Big Bear Lake derive considerable income from catering to these short term residents. They are less in favor of the city government imposing regulations on the transient population than are the homeowners in the city who must live with a constant influx of highly unpredictable temporary neighbors of variable levels of gentility. This has created some degree of tension between the permanent residents of Big Bear Lake and those who see their property as a means of generating income. The permanent residents clamor for greater regulation of short term rentals while the absentee landlords are essentially satisfied with the status quo. Since the absentee landlords are generally wealthier than the permanent residents and can apply money in the form of political grease more readily than the permanent residents, the city and city council have not put in place nor enforced regulations on the transitory population to the degree that the permanent residents want. While it is not accurate to say the city has done absolutely nothing in redressing this issue, for some the city has not been as aggressive as it could or should be in cracking down on unruly short term residents. Lee has sided with the residents who want greater regulation and enforcement action while the rest of the council has been more deferential toward the absentee landlords. In this way, which party – Lee or the balance of the council – has taken the most responsible position is a matter of perspective.
There is inconsistency in the vitriol aimed at Lee. One example is something that grows out of the absentee landlords/permanent residents divide. Some have asserted that Lee is not a true resident, or at least a constant resident of Big Bear Lake. They point to what appear to be his frequent absences from the city as an indication of this. Some have asserted that this is grounds for forcing Lee’s removal from the city council. Yet it is Lee who is a more aggressive than anyone on the council in advocating the rights of permanent residents over transitory residents of Big Bear Lake.
Another example of his critics’ inconsistency in attacking him is the recurrent claim that Lee is a “plant” or “shill” or “operative” of various public employee unions. Those making that accusation, however, are at a loss to explain why it is that Lee is seen as being unduly harsh in his treatment, and demands, of the city’s employees.
In the narrative that is put forth by the council majority, Lee is demonized as a self-interested politician who has ascended to an elected position out of greed or ego or both, and that he is constantly awork at sowing dissension to divide the Big Bear Lake community and tear it down to achieve his own selfish betterment. At the same time, the council maintains, its four ruling coalition members are dedicated to maintaining a cooperative and enlightened as well as efficient synergy involving City Hall’s 65 employees, the Big Bear Lake Department of Water and Power’s 34 employees, the consolidated Big Bear Fire Department, the San Bernardino County Sheriff’s Department and all affiliated and nearby governmental entities in which the sum of the parts, the whole, is greater and more important than a single component or the advancement of a single individual. Nevertheless, in 2018, when the City of Big Bear Lake formulated its council districts to determine the system under which the city’s residents would choose their elected leadership, the city council as it was then composed, which contained two of its current members – Mayor Rick Herrick and Randall Putz – voted to adopt a city electoral map which gerrymandered the districts in such a way that all of the incumbents were placed into safe districts in which they did not need to run against one another, which virtually ensured their reelection. Indeed, the 2018 election was not held in Big Bear because no challengers emerged for Herrick, Putz or the other incumbent up for election that year, David Caretto.
As it turned out, also on the agenda for Monday night was the fourth and final required public hearing required under California’s Fair Maps Act to select an electoral map for the city based upon the 2020 Census that will be in use in the upcoming 2022 election and thereafter in 2024, 2026, 2028 and 2030. Scott Smith, an attorney with the law firm of Best Best & Krieger, has advised the city with regard to setting its district boundaries as it considered a total of 18 potential maps, including ones drawn up by his law firm with the help of demographers as well as alternatives submitted by city residents. On February 7, the Big Bear Lake City Council had reduced those competing 18 maps to two, one designated Map 1 and another with the nomenclature Map 5B. Map 1 retained the core of the existing districts drawn up in 2018 and disrupts the established voting sequence of the fewest number of voters, while yet creating more linear borders and forming district configurations that are more compact than the radically asymmetrical districts in the city’s existing electoral map, eliminating most nooks and crannies and radical peninsulas and jetties. Nevertheless, Map 1 keeps all of the city’s council members in their currently numbered separate districts so that none need run against any of the others. Map 5B favored compactness over continuity, entailing a simpler set of less obviously gerrymandered districts that are relatively distinguishable as running east to west with what are north to south district lines. Map 5B generally does not retain the core of existing Districts 1, 2 and 3. In it, a large number of residents in the center of the city area who under the current map would vote this year are deferred to 2024 in next voting, as they move from District 2 and District 3 to District 1. The vote scheduling of the other residents in those districts is either accelerated by two years or not impacted. Map 5B put council members Lee and Putz within District 3, such that Putz would be obliged to run in this year’s election to remain in office, just as his current term is to end. Lee, whose current term does not end until 2024, would be required, if Map 5B were adopted, to run in this year’s election if he is to remain on the council after December 2024. The council Monday night voted 4-to-1 with Councilwoman Bynette Mote dissenting to adopt Map 1, essentially leaving all of its members in separate districts where none will displace the others and they are all likely to have an advantage over opponents in future foreseeable elections.
Thus, it would seem, the actual situation with regard to the personal political ambition and the dedication of the individual elected officeholders to their constituents vis-à-vis the balancing of altruistic and selfish interests is one more complex than fits the narrative provided by any of the actual participants at Big Bear Lake City Hall.
Some city residents are in general agreement with the city council and say that Lee has a chip on his shoulder that is inappropriate and completely uncalled for, and that he is a disruptive and divisive force with either questionable or malignant motives. Others maintain the city council is either too thin-skinned and/or intolerant of spirited discussion and debate, or inclined toward questionable or ill-advised policies that Lee is unwilling to ignore. Politics is by its very nature contentious, and some consider it both immature and unrealistic for the council majority to object to Lee engaging in a political dialectic.
Early on Monday Night, March 7, the city council met in closed session, during which discussion of the status of City Manager Frank Rush was discussed under the agenda heading Public Employee Performance Evaluation, which was widely understood to have grown out of Rush’s expressed desire to exit the city, based upon his inability to work amicably or productively with Lee.
After emerging from the closed session, the council took up a matter again listed on the agenda as “Employment Status of City Manager,” with the encapsulated explanation, “City council will formally consider a separation agreement with City Manager Frank A. Rush, Jr. that will terminate his employment with the City of Big Bear Lake. The city council may also consider and take other actions pertaining to the employment status of the city manager.”
Mayor Rick Herrick invited City Attorney Deitsch to orient the public as to the pertinent issues. In turn, Deitsch called upon his colleague with the law firm of Best Best & Krieger, Joseph Sanchez, to address the matter. Sanchez confirmed that Rush was leaving the city.
“I was asked to review an agreement that came at the end of last week regarding the city manager,” Sanchez said, “The nature of the agreement was a proposed separation or mutual separation and release agreement. The basis of that was regarding some allegations that had been brought to the attention [of the city council] …regarding the city manager, that he has unfairly endured abusive treatment from a member of the city council over the past 15 months and that has impeded his ability to work effectively as city manager. In light of that, the discussion centered around an agreement that would separate his employment pursuant to the terms of his employment agreement, essentially which gives the city council the ability to separate his employment at any time subject to the parameters of that agreement which includes a six month’s severance payment. Essentially, what this agreement would do is create a separation date of March 15, 2022, that the city manager would be placed on paid administrative leave until that date but would be available to deal with any transitional issues as they may arise.”
The deal will provide Rush with additional health payments, vacation and other types of leave, Sanchez indicated.
As of this week, Rush is being paid $248,444.74 in salary, $12,000 in other forms of remuneration, another $20,000 in bonuses and $82,244 for a total annual compensation of $362,688.74.
In return for accepting the separation agreement, Rush is, Sanchez said, to “release of all claims” against the city going forward. The covenant not to sue the city for employment related claims, Sanchez said, contains “a section for non-disparagement in which the council will … refrain from making any disparaging statement about the city manager.”
Councilman Lee inquired about how binding the non-disparagement claim was.
“There’s a provision in there that speaks to council members speaking on behalf of the city,” Lee said. “Can you talk about the difference between speaking on behalf of the city and the council members speaking on behalf of themselves and the constituency that elected him?”
Lee made it sound as if he was yet contemplating speaking out with regard to whether the city had been too generous in remunerating Rush.
“The city manager has received three evaluations that were reported back out in open session as great evaluations,” Lee said. “He received a $20,000 bonus a couple of months ago on a 4-to-1 vote for doing a great job and being a great steward. Today we’re going to give him $130,000 thereabout plus some other benefits because – and that’s what I’m trying to figure out: the because. I’m concerned that this can be construed as a gift of public funds.”
The vast majority of a crowd of more than 80 people gathered at City Hall that night were favorably disposed toward Rush. Lee’s reference to the severance pay Rush is being provided as a gift of public funds provoked shouts and laughter.
Lee gamely continued, angling toward a suggestion of some untoward act on Rush’s part. Mayor Herrick, however prevented him from exploring that issue.
“Lastly, I’m concerned that the city manager, who rented a home from a vacation rental operator who just sold the home…”
Herrick interposed, saying, “Councilman Lee, if you could just stick to the agenda.”
“It just doesn’t seem…” Lee persisted.
Once more, Herrick overrode him
“That’s not part of the agreement that’s in front of us now,” Herrick said. “If you could just narrow your question down to what the agenda item is.”
Herrick’s reference seemed to indicate that he knew what Lee was referring to, but for the uninitiated, it was difficult to ascertain whether the ground Lee was attempting to cover was or was not applicable to the rationale for conferring the settlement payment upon Rush. It seemed that Lee was seeking to determine whether the home Rush was renting had been sold out from underneath him and if that had any bearing on his decision to leave the city, perhaps obviating the necessity for Rush to be provided with a severance package. The mayor’s intervention, however, left what Lee was seeking to determine murky.
Lee tried to continue, saying, “It seems at the time it was suspect…” Lee was voiced over by Herrick, and thereafter dropped the matter.
Sanchez took the opportunity to begin answering the questions Lee had managed to pose. He sought to satisfy Lee on why the council was providing Rush with the severance buyout.
“The city council can say if there’s a concern for whatever reason – not an unlawful one which I don’t believe is what we have here – but make the decision that for some reason the city manager isn’t able to effectively carry out his duties, that a decision can be made to separate his employment,” Sanchez said, using somewhat uneven syntax. “What is before the city council is to make the determination that in this instance the city manager, due to the circumstances as alleged, is unable to effectively carry out his duties as city manager, and in order to deal with that situation what’s before the city council tonight is are we going to move forward with separating that.”
Sanchez then said, “In regards to the discussion of the non-disparaging language, there was a question kind of to distinguish between what’s essentially attributed to the city. I think what we’re dealing with here is this agreement is taking on statements which are made on behalf of the city that would disparage the city manager or, if this is approved, the former city manager. I think there’s a distinction, there is a distinction, between a statement on that front and statements that may be made from an individual, an elected official which would be attributed to them in their personal and individual capacity. I don’t think something like that would necessarily implicate the non-disparagement portion of this clause.”
Sanchez seemed to indicate that Lee was free to make critical comments about Rush if he made clear he was speaking as an individual rather than as a representative of the city.
Councilwoman Mote noted that Rush alleged he “had endured especially abusive and hostile treatment from one member of the city council for the past 15 months, that this behavior has disrupted and impeded Mr. Rush’s work as city manager and significantly impacted the emotional, mental and physical health of Mr. Rush beyond the normal reasonable experience of any employee in any organization, and that this council member has and continues to work to directly undermine the significant work effort of Mr. Rush, often in conflict with the policy decisions approved by the majority of the city council. I can no longer employ Mr. Rush as an employee because he cannot handle his job because of one council member, so I am in full support of this very sad agreement.”
Councilman Randall Putz said, “My experience has been that Mr. Rush has been an exceptional city manager, that we’ve been very fortunate to have him. When it comes to the actual separation agreement, from my perspective, I think we got off rather cheaply, inexpensively. It’s common for any CEO-type person – you can view any of the contracts from our superintendent to our fire chief, wherever – to have severance payments. We do gain with this agreement some additional protections that do protect the city. I’m frankly surprised that Mr. Rush has hung in there as long as he has been able to and I personally morally am not comfortable making him suffer any longer. I know critics will point at the cost. I won’t get into the minutiae, but it’s a deal, frankly. They’ll talk about his behavior, perhaps try to malign him as they have in the past. From my perspective, that’s just an effort to deflect from taking responsibility for where we find ourselves right now. Aside from the great loss that we’re going to suffer and the disruption that we’ll continue to suffer through, I think that under the circumstances, which in my opinion are horrific, this is a good value for the city and it’s fair and humane to Mr. Rush, so it’s an easy thing for me.”
Councilwoman Perri Melnick said, “I think we’re getting off pretty reasonably here. The fact of the matter is the employment agreement doesn’t even require us or require Mr. Rush to sign the settlement agreement, but it does require us, if we terminate his employment, which I think we have no choice but to do because the fact of the matter is it is our job to make sure we have a city manager who can effectively do his job, and he can’t effectively do his job in this environment. We are getting something in return, which is a settlement and release for the city. I am immensely saddened by this. I think that Frank has worked tirelessly through some very challenging times for our community.”
The council voted 4-to-1 to ratify the severance agreement, with Lee in opposition.
Later in the meeting, the council took up the resolution of reprimand, which stated, “Council Member Alan Lee has demonstrated open hostility, yelling, bullying, disrespect, and confrontational behavior in and following council meetings that has resulted in disrupting the peace and deliberative function of the council, has disrupted the conduct of city staff by causing extraordinary and often unnecessary extra work assignments to accommodate his asserted but unsupported needs, has delayed and unnecessarily extended city council meetings by repetitive statements and referring to matters which could instead easily have been addressed to or with city staff in advance of council meetings, and has made unsupported or deceptive personal attacks on and misrepresentations about the mayor, fellow council members, and the city manager in communications at council meetings.”
Furthermore, according to the resolution, “Council Member Alan Lee has excessively and impermissibly directed the city manager and city staff to initiate projects and reports, significant in scope and nature, and to gather information without approval of the city council, including requests for information unrelated to the business at-hand. His requests have had a significant impact on the workload of the city manager and city staff, at significant cost to the city. Council Member Alan Lee has inappropriately blocked and deleted features on his social media platforms and posted commentary in a manner that may cause harm to the city’s interests and expose the city to legal liability. Council Member Alan Lee has failed to reasonably use his city email account for his city-related business, resulting in a significant inability for city staff to access all his city-related emails for purposes of responding to Public Records Act requests. This has exposed the city to claims and potential litigation alleging that the city has not produced all responsive documents, including his emails, pursuant to a Public Records Act request. Council Member Alan Lee’s newsletters have incorrectly or misleadingly labeled themselves as reports from City Hall, using stock photography of City Hall with the city’s seal or logo. Council Member Lee has also not included the standard disclaimer for his individually hosted events and meetings that would clearly indicate that these are not official city meetings or events. Stories in such newsletters have been demonstrably misleading, creating false impressions, reciting only partial facts or making incorrect factual statements. The city council finds that in engaging in such improper, unprofessional and unacceptable conduct, Council Member Alan Lee was acting solely on his own and without any authorization or ratification by the city council, all contrary to the Council Rules of Order and general norms of conduct, and contrary to the legitimate and best interests of the city.”
Lee’s comportment, according to the resolution, has lacked transparency.
The resolution of reprimand passed 4-to-1, with Lee dissenting.
-Mark Gutglueck