Judge Michael Sachs has entered a ruling which does not sustain former San Bernardino City Manager Andrea Travis-Miller’s civil complaint that a 2020 social media posting by Councilwoman Sandra Ibarra not only defamed her but violated her employment termination agreement with the city.
Travis-Miller endured two stints as the head of San Bernardino’s municipal operations, each under what turned out to be very trying circumstances. The first time she left willingly and the second time she was forced out. Her time in San Bernardino would arguably and perhaps actually represent both the high points and low points of her public career. In addition, circumstances would lead her into twice suing the city.
In 2012, Travis Miller was promoted from deputy city manager to acting manager when former City Manager Charles McNeely departed as the city was foundering financially. Travis-Miller was handed the reins as the city was teetering over a financial abyss, facing a $45.8 million deficit and $180 million in ongoing unfunded liabilities. Working with Jason Simpson, who was then the city’s finance director, Travis-Miller made a review of the city’s financial books, the conclusions of which were so startling that the city council in July 2012 resolved to file for Chapter 9 bankruptcy protection on the basis of a 45-page report from Travis-Miller recommending doing just that. The city did so the following month. Travis-Miller gamely soldiered on as acting city manager, leaving in 2013. Upon doing so, she left on the table a payout she was supposed to receive for accrued vacation time and sick leave owed to her from prior to August 2012, as she was considered one of the city’s creditors under the bankruptcy filing. When the city got around to settling with those pre-bankruptcy creditors, she was cataloged with those deemed eligible to receive one percent of what they were owed – one penny on the dollar.
Upon leaving San Bernardino the first time, she became the executive director of the San Gabriel Valley Council of Governments. In March 2015, she accepted the position of city manager in Covina.
In 2016, Travis-Miller was persuaded to return to San Bernardino, where she was installed as the city’s contract assistant city manager under then-City Manager Mark Scott. She was in place in June 2017 when the city made its exit, after nearly five years, from bankruptcy.
When Scott of his own volition departed as city manager toward the end of Summer 2017, the city council, at that point led by Mayor Carey Davis, turned to Miller to lead the city. Seeking continuity and stability, the council conferred upon Travis-Miller a five-year contract, providing her a $253,080 annual salary and $93,000 in total yearly benefits. John Valdivia, then a councilman in the city’s Third Ward, wrung from her a commitment to remain as city manager for the full five years and not surrender to the temptation to move on to a more lucrative or prestigious management position elsewhere.
Less than a year-and-a-half later, however, Valdivia had moved up from his council position, vying successfully in 2018 against Davis to defeat him in that November’s mayoral election. As soon as he had the mayoral gavel in his hand, Valdivia clashed with Travis-Miller.
On December 19, 2018, the day Valdivia was sworn in as mayor along with two new council members with whom he was then allied, Second Ward Councilwoman Sandra Ibarra and First Ward Councilman Ted Sanchez, he undertook to attenuate Travis-Miller’s power as a ploy to reassert the power of the mayor’s office, which had been attenuated by a charter revision passed by the city’s voters in 2016 which had done away with the stron mayor form of governance the city had been functioning under since 1905. That day, at Ibarra’s suggestion, the council undertook to carry out a closed door evaluation of Travis-Miller’s performance. Thereafter, in January, February and March of 2019, the council engaged in closed session reviews of Travis-Miller’s work and accomplishments, compliance with the council’s directives and the general direction of the city under her guidance, amid a series of episodes both public and private in which Valdivia and Travis-Miller locked horns.
Travis-Miller took issue with Valdivia’s travel plans, including two sojourns to Washington, D.C., three trips to Sacramento, and international travel which included junkets to South Korea, China, and Taiwan, which she maintained exceeded the amount budgeted for such purposes.
In the fray, Valdivia had seized upon the manifestation of what was approaching a $7 million shortfall in the city’s revenue over what had been projected for 2018-19, brought on in no little measure by a steep downturn in the city’s gasoline tax receipts. The departure of Finance Director Brent Mason early in 2019 further compromised Travis-Miller’s standing with some members of the city council who interpreted Mason’s departure as a sign that the city under Travis-Miller’s guidance was faltering financially.
There was for the first five months of Valdivia’s tenure as mayor insufficient support on the council to actuate Valdivia’s intent to terminate Travis-Miller, but in May 2019, when Valdivia’s ally Juan Figueroa was elected in a special election to fill the gap in the on the council when Valdivia’s position as Third Ward councilman had been vacated with his elevation to mayor in December 2018, five votes to relieve her of her position as city manager were manifest, those of Ibarra, Sanchez and Figueroa along with then-Councilman Henry Nickel and Councilwoman Bessine Richard.
The council made that firing without citing cause.
Under the terms of her contract, Travis-Miller was to be provided with a 30-day notice of her termination and, upon termination, a severance payout equal to one year’s salary, an amount of $253,080 shown in her original contract along with “benefits then in effect as provided for herein including, but not limited to, vacation, health and life insurance, and CalPERS [California Public Employees Retirement System] retirement service credit accrual for twelve months or through the original term of the contract, whichever is shorter.”
Thus, from the time of her termination, Travis-Miller was due $253,080 plus $106,612.51 in benefits, of which $53,976.62 was a contribution toward her retirement fund. Thus, she was due to receive, under her contract, $305,715.89 to be paid out to her in 12 monthly installments of $25,476.32 over the year-long period following her departure. In addition, the city was to make the $53,976.62 annual contribution to the California Public Employees Retirement System for the last year she worked and another $53,976.62 contribution to the California Public Retirement System for the follow-on year roughly matching 2019-20.
In June, however, the city failed to provide Travis-Miller with the first $25,476.32 installment of her severance pay, fueling speculation it might amend its May 29 action firing her to allege cause. Again in July, the city was delinquent in making the payment. At that point Miller, who is herself an attorney, filed a claim against the city, a prerequisite to the filing of a lawsuit. In August, the city likewise did not come forth with the severance installment due Travis-Miller. The city, however, did nothing to adjust its termination of her as having been carried out for no cited cause. In September, Travis-Miller, represented by attorneys Bradley Gage, Milad Sadr and Terry Goldberg, filed suit against the city.
In that breach-of-contract suit, filed in San Bernardino County Superior Court, Travis-Miller and her attorneys maintained she was retaliated against, subjected to a “hostile” work environment, discriminated against and suffered gender bias. The suit said tension between her and Valdivia and his staff members was at the root of much of the shabby treatment she endured. Reiterating many of the issues she previously highlighted in her July claim against the city, the suit fleshed out further detail with regard to how the city and its leaders failed to take any corrective action or discipline those who were responsible for what she experienced. According to the lawsuit, several of the city’s elected officials knowingly and deliberately violated the city’s revamped charter, particularly with regard to provisions that empowered her as city manager vis-à-vis the mayor.
According to her suit, Travis-Miller was the victim of “a concerted effort” orchestrated by Valdivia and his minions to marginalize her. Valdivia evinced a shocking degree of chauvinism, according to the suit, including having “questioned why the city had a female city manager or the wisdom of having women in government,” which ultimately had the effect of leaving Travis-Miller isolated from other members of city, excluded from meetings, and shunted aside in such a way that she was “cut off [from] the flow of information or communications intrinsic to her essential job duties.” She was, according to the suit, unjustifiably subjected to “negative performance reviews, reduction in authority, administrative leave and termination. Miller was subjected to unwanted harassing conduct because she is a woman. The harassing conduct from [the] defendants and each of them, was so severe, widespread, or persistent that a reasonable person in the plaintiffs circumstances would have considered the work environment to be hostile or abusive.”
Over the next six months, Travis-Miller, along with Gage, Sadr and Goldberg prepared to go to trail.
On Wednesday, April 1, 2020, the city council approved a settlement agreement with Travis-Miller in which the city denied any liability growing out of Travis-Miller’s claims but nonetheless agreed to pay her $750,000 to resolve all of her claims in exchange for her waiver of all claims and dismissal thereof. In announcing the settlement, the city made a public declaration, it said, “to clarify that Ms. Miller was terminated without cause because the city wanted to go in a new direction. During her tenure as city manager, Ms. Miller received strong performance evaluations. Contrary to any previous public statements or published comments, there is no evidence that Ms. Miller ever engaged in any professional improprieties or corrupt behaviors. The city appreciates the assistance that Ms. Miller provided the city and her astute financial guidance in leading the City of San Bernardino out of bankruptcy.”
Of note was that the $750,000 settlement conferred upon Travis-Miller exceeded by $310,854.55 the $439,145.45 that was due her under the terms of her contract, consisting of the $25,476.32 in monthly pay and benefits she would have been provided for the month she would have remained on the city payroll following notification of her termination, the $305,715.89 to be paid out to her in 12 monthly installments of $25,476.32 over the year following her termination, and the two separate $53,976.62 contributions toward her retirement fund for 2018-19 and 2019-20.
The settlement carried with it a mutual non-disparagement clause which prohibited either side from badmouthing the other, with the statement provided by the city in announcing the settlement on April 4, 2020 to be the final and only public comment from either side with regard to the matter.
Less than a month later, however, Councilwoman Ibarra was engaged in a series of exchanges with members of the public on the social media platform Facebook in which the city’s settlement with Travis-Miller was questioned. At issue was the $310,854.55 in excess of the $439,145.45 owed to Travis-Miller under her contract the rationale for the settlement and why it was that Travis-Miller had been let go in the first place. While Ibarra had been considered to be a political ally of Valdivia in the initial stage of Valdivia’s tenure as mayor and her first six months or so as a councilwoman, by that point Ibarra had broken with Valdivia. Nevertheless, in the Facebook exchange, Ibarra referenced the difficulty she had with Travis-Miller, extending back to prior to her election to the city council, when as a community activist in the city’s Second Ward, she had not been able to get City Hall to act with regard to issues Ibarra felt needed to be redressed in her neighborhood.
“The truth always prevails and for what it’s worth, those comments made by the City are false. I stand behind my vote of letting Andrea go, just as I do with others who aren’t performing and aren’t letting the city move forward. Just remember I’m one of 7 votes up there. Not many up there listen to the speakers.”
In an apparent response to attorney Tristan Pelayes, who was representing several city employees who were suing Valdivia over mistreatment, Ibarra sought to counter Pelayes’s suggestion that she was yet aligned with the mayor. Pelayes had suggested that her vote to fire Travis-Miller served as a demonstration that she was in league with Valdivia. Ibarra countered that observation with her assertion that she had come to the conclusion that Travis-Miller should be terminated independent of Valdivia’s militating against her.
“Tristan, I would recommend reading Andrea Miller’s contract to start with,” Ibarra posted. “Then see if you all can gain access to the official performance reviews we submitted to the city last year. I stand behind my botes to let Andrea go. I knew enough about Andrea’s performance before being elected because I was out in the community and things weren’t getting done.”
Upon those Facebook exchanges being brought to Travis-Miller’s attention, she had discourse with Gage, Sadr and Goldberg, who in short order characterized what Ibarra had said as “defamatory” and a violation of the non-disparagement clause of Travis-Miller’s settlement with the city. The Goldberg & Gage Law Firm filed a claim with the city over Ibarra’s postings.
Gage went on record as saying Ibarra’s remarks were a perpetuation of the action that had led to the filing of the lawsuit against the city the previous year and that Ibarra was engaged in “a continuing act of discrimination, harassment and retaliation” against Travis-Miller based on her age and gender as well as for having stood up to the city in the past.
When the city rejected the claim, Gage, Sadr and Goldberg sued the city and Ibarra on Travis-Miller’s behalf.
According to the lawsuit, Ibarra’s posts were false, defamatory, malicious and harmed Travis-Miller’s reputation, damaging her ability to find work in the field of municipal management.
Moreover, they violated the $750,000 settlement agreement, necessitating that the city pay Travis-Miller even more money.
Judge Michael Sachs, in his finding with regard to both the city’s and Ibarra’s motions for summary judgment , concluded Ibarra was expressing an opinion protected by the First Amendment when she made what were critical but objectively less than defamatory statements about Travis-Miller in her Facebook postings. The postings qualifed as “opinion,” Judge Sachs said, about someone, i.e., Travis-Miller, who was serving in a public capacity. As such, the judge said, what Ibarra wrote did not meet the threshold of being “highly offensive to a reasonable person in Miller’s position.”
Nor did Ibarra’s postings breach the settlement agreement between the city and Travis-Miller, Judge Sachs ruled.