In an effort to stave off what is growingly considered to be an inevitable conviction of at least three members of the Ontario City Council on a Brown Act violation rap, the city has hired top-flight criminal defense attorney Stephen Larson to represent the council.
At stake in the matter is whether the defense to be employed by the city in meeting the charges will leave exposed a closely-held tactic used by hundreds of elected officials throughout the state to evade that element of the government code which requires that elected municipal and other government agency officials openly engage in their deliberations on matters to be decided upon without prior collusion among themselves with regard to the votes they make in their official capacities.
A key factor in whether Mayor Paul Leon, Councilman Alan Wapner and Councilwoman Debra Dorst-Porada will be forever marked as criminals and thereby sustain potential political career-destroying wounds is whether Larson will be able to keep the forum for the investigation and trial on the criminal charges that would most logically be filed against his three clients in San Bernardino County and prevent the San Bernardino County District Attorney’s Office from surrendering jurisdiction in the prosecution to the California Attorney General’s Office.Leon, Wapner and Dorst-Porada put themselves into legal harm’s way in February when Councilman Ruben Valencia, who was first elected to the city council in 2016, was reelected in 2020 and who unsuccessfully challenged Leon in the 2022 mayoral race, went on vacation to Mexico with his wife, daughter and in the company of La Puente Mayor Charlie Klinakis. That excursion was to the Mexican State of Sinaloa, where three cities – Guamuchil, Los Mochis & Mocorito – were, until January, international sister cities with Ontario. On January 17, the Ontario City Council, with Valencia’s sole dissenting vote, had acted to end its sister city relationship with Guamuchil. According to Leon, the vote extended not just to Guamuchil but Los Mochis & Mocorito. Despite that, the city’s website in February and even at present lists Guamuchil, Los Mochis & Mocorito as Ontario’s sister cities, along with Winterthur, Switzerland; Jieyang, China; and Brockville Ontario, Canada.
The agenda for the February 21 Ontario City Council meeting had already been set, and had been posted on Thursday, February 16. On Friday, February 17, city officials learned of Valencia’s sojourn to Sinoloa. They began monitoring social media postings and press accounts of the interaction between Valencia, Klinakis and Sinaloa Governor Rubén Rocha Moya as well as both Veronica Rochin and Feliciano Castro Meléndrez, members of the Sinaloa legislature, known as the House of Deputies, along with other dignitaries with the cities of Los Mochis, Mocorito and Guamuchil. While the nature of the discussions that went on between Kinakis, Valencia and the local and state Sinaloa officials was not clear, Ontario officials assumed the worst.
In one of her posts, Rochin made reference to “strengthening our ties with the sister cities of La Puente and Ontario, California.”
Valencia had long been on the wrong side of Alan Wapner. In 2014, Valencia had run unsuccessfully against Wapner and Bowman for a position on the council. In that campaign, Valencia had sought to capitalize on the surfacing of a video of Wapner striking his teenage daughter, which was posted on the internet. Wapner hit back, accusing Valencia of campaign finance irregularities, based upon what he said was Valencia improperly soliciting support from his colleagues in the Los Angeles Sheriff’s Department, with which Valencia was employed as a deputy. Valencia then took legal action, seeking to obtain a restraining order against Wapner to prevent him from harassing him at his place of employment at the City of Industry Sheriff’s Department Substation. Similarly, Valencia was on less than solid footing in his relationship with Dorst-Porada, whom he vied against unsuccessfully in 2012 and outpolled in the 2016 election when he was first elected to the council and she was reelected for the second time. Valencia’s challenge of Leon in last year’s mayoral election deepened an incipient distaste Leon felt toward Valencia.
As a consequence of his being persona non grata on the council, Leon, Wapner, Dorst-Porada and Councilman Jim Bowman had acted last year to strip Valencia of his adjunct governmental assignments such as his membership on council committees and his representation of Ontario as an appointed board member on various regional joint powers authorities with officials from other cities and government agencies.
Based on Valencia’s January 17 vote opposing the elimination of the sister city alliance with Guamuchil Leon, Wapner and Dorst-Porada, one-by-one came to interpret Valencia’s unanticipated presence in Mexico that week where he was involved in discussions with Sinaloa officials as an effort to perpetuate the sister city relationship with Guamuchil. Given that Valencia had no portfolio to be representing the City of Ontario in any capacity, they concluded that there was grounds to censure Valencia for acting as an official emissary of Ontario when he had no authority to do so.
The appearance, late February 17 and early February 18, of social media, Mexican newspaper, and television reports that Valencia was in Sinaloa on a sister city mission was first picked up by, it seems, City Manager Scott Ochoa, who shared that information with Leon. A flurry of communications between the mayor, Wapner and Dorst-Porada followed. Somewhat predictably, within the echo chamber amongst the three, outrage festered and raged as each sought to outdo the other in expressing how affronted he or she was over Valencia’s audaciousness. Valencia was engaged in activity which he was not authorized to undertake, the three agreed, resolving to do something about it. The mayor’s interpretation of those reports was that Valencia was cavorting with a group of international politicians and that he was representing Ontario with regard to issues and discussing the sister cities programs. There were photos of him at parties or festivities with the Sinaloa governor and a congresswomen. In at least one case he was referred to as the mayor of Ontario, Leon fumed. Ontario City Manager Scott Ochoa was brought in on the serial discussion amongst Leon, Wapner and Dorst-Porada. Valencia was, the officials concluded, “out of control.”
At that point, the agenda for the February 21 Ontario City Council meeting had already been set and posted on Thursday, February 16. In that agenda, there was no mention of a censure.
On Saturday February 18, City Clerk Sheila Mautz was contacted by Leon, who instructed her to put an emergency walk-on item onto the agenda. Mautz herself had at one time been a member of the city council. Based on that experience as well as her status as city clerk, she recognized that Leon, Wapner and Dorst-Porada were inflating the issue far beyond what it was and that if push were to come to shove, she would be hard-pressed to justify Valencia’s vacationing in Mexico as an “emergency” necessitating the alteration of the already set agenda. Still, she recognized the political primacy of Leon and Wapner and for that reason complied with Leon’s demand, composing an agenda add-on that read: “A Resolution To Censure A Council Member: That the city council discuss and provide direction to staff regarding the adoption of a resolution censuring Council Member Ruben Valencia for unauthorized representation of the city’s interests and/or positions.”
There was no resolution accompanying the emergency announcement. What was suggested by the add-on posting was that either the resolution would be drawn up over the weekend or on Monday and Tuesday, February 20 and 21, and would be presented to the public and the council at the Tuesday night meeting or that the council would draft the resolution during the course of the meeting.
There were grounds to believe that Valencia’s vacation in Mexico was intended as an extended one and that he would not be back in Ontario on February 21 to attend that evening’s council meeting. Moreover, given that the agenda had already been set and posted as of February 16, much or even most of the public interested in attending meetings, the usual crowd that might have been anticipated to show up on February 21, would by Friday have consulted the then-as-yet-unaltered agenda and thus would have no clue that a move to censure Valencia was under way. This created the prospect that the discussion of the censure of the councilman would begin the evening of February 21 and take place outside Valencia’s presence, during which it might mature into a full-blown resolution to censure him which would be voted upon and approved on the spot. By the time of his return to Ontario the last week of February, Valencia would stand as being, if the plot hatching over the weekend of February 18 and 19 went forward, officially rebuked by his colleagues, publicly shamed and condemned as unfit to hold office, labeled an enemy of the people of Ontario.
Word spread that Valencia was out of town and that the city council was rushing to hold a censure hearing against him in absentia so he could be officially admonished.
An eagle-eyed Valencia, however, while using the internet to look over the agenda and agenda packet for the upcoming meeting in his Sinaloa hotel room, noticed that the agenda had been altered from its original form and that the addition called for a hearing relating to censuring him. He called City Attorney Ruben Duran, who reluctantly took the call, confirming only that there had been an additional item placed on the agenda and that the agenda item related to Valencia’s potential censure. Since, Duran said, he had already discussed the matter with the mayor and another council member, he could not engage in any substantive discussion with Valencia about the issue, as doing so would potentially entail a violation of the Brown Act.
The Ralph M. Brown Act is California’s open public meeting law. It requires that all decisions made by a publicly elected governmental body, with a handful of specific exceptions, be conducted in an open venue which can be witnessed by any and all citizens who wish to be present. Those meetings can only be held after the public is given at least 72 hours advance notice of the issues, topics or matters that are to be discussed and voted upon during the forum in which the decision is made. That notice must be given by the publishing or posting of the agenda for the meeting. When backroom discussion or decisions relating to matters that are given exception from immediate disclosure and public scrutiny take place, the Brown Act requires that the public be informed immediately upon a decision of the legislative/executive body being reached.
The Brown Act requires that all discussions pertaining to official business of a governmental entity involving a quorum of its elected board such as a city council be conducted in public, with exceptions for negotiations for land purchases, discussing employee discipline, hiring and firing employees, labor negotiations, pending and ongoing litigation, discussing threats to the security of public buildings, discussing or contemplating the licensing of individuals with criminal records, considering the investment of pension funds and discussing and arriving at the governmental entity’s final response to a state audit. The Brown Act restricts a quorum – consisting of a majority – of a public board of elected officials from meeting outside of a previously noticed and agendized public forum to discuss any matter pertaining to the governmental entity those elected officials represent. It prohibits serial meetings of the elected officials that ultimately involve discussion of official action by a quorum. With a five-member board, a serial meeting takes place when one member, through whatever means – in person, by post, telephone, text message, through an intermediary and email included – discusses with one of his or her colleagues official action and thereafter discusses with another colleague that contemplated action through whatever means, so that three members of the board have discussed the action or potential action among themselves.
The Brown Act in general prohibits publicly elected members of a governmental board from reaching a consensus on a public issue outside of officially sanctioned forums and it precludes the government and those who constitute it from keeping a decision that was arrived at in secret from the public once that decision is made. Thus, any decision involving a matter legitimately discussed in secret under the exceptions provision of the Brown Act must be disclosed upon being reached.
If it had been Leon’s, Wapner’s and Dorst-Porada’s hope that the council could convene on Tuesday night, February 21, carry forth a discussion about the transgressions Valencia had engaged in and note that he had not shown up to answer the charges against him because he was still in Mexico cavorting with public officials the City of Ontario had ended its relationship with the month before and methodically move to the conclusion that Valencia was a reprobate whose activity merited the sternest of disapproval before officially castigating him, they were disappointed.
When the council meeting commenced on February 21, present in the council chambers were dozens of Ontario residents, among whom were not only Valencia supporters but residents who had been alerted that something significant was in the offing. Many had shown up because they were given to understand that the council was stampeding toward a predetermined outcome by which the proper protocols and due process were being given short shrift.
One of those was Celina Lopez, who had run for the city council against Valencia in 2020 and had previously expressed differences with him over certain issues. She nevertheless questioned both the motive for and the basis of the council majority’s effort to objurgate Valencia without clarifying why it was doing so or marshaling supporting documentation, which she said demonstrated a lack of transparency that reflected more poorly on them than it did on Valencia.
Maria Galvan questioned why the council had felt it necessary to submit a change to the agenda over the weekend and denounced the council for not including the resolution of censure in the agenda packet.
Valencia had caught a flight back to Ontario and was on hand for the meeting, a circumstance that Leon, Wapner, Dorst-Porada and Ochoa had hoped to avoid.
Anticipating that by crossing swords directly with his accusers and defending himself against their allegations he might subject himself to further accusations that he was using the council dais for self-advocacy and was engaged in a conflict of interest, Valencia had retained San Diego and Upland-based attorney Cory Briggs to represent him.
Briggs, the grandson of Homer F. Briggs, a former Ontario councilman, addressed the council, informing its members he intended to put the city and the council through their paces by insisting that Valencia be provided with due process and that he was looking to not only delve into the council’s motive and rationale for going after Valencia but would inquire as to whether the council had sought to load the dice against his client by arriving at a decision to censure Valencia and discussing doing so in advance of that evening’s meeting.
In rushing into a censure hearing in the guise of emergency action without any drafted resolution beforehand, Briggs said, the council appeared to be in violation of the Brown Act, was improperly applying the censure procedure and in doing so was using a basis that was not clearly defined and of questionable and unproven reliability. The council had formulated the charges against Valencia simply to engage in political one-upmanship, Briggs said.
“You clearly have an issue with one of your colleagues on the council,” Briggs said, pointing out that was hardly valid grounds for censuring him. “Your agenda doesn’t tell anybody what this is about,” he said. “Mr. Mayor, you just recited what you know [about Valencia’s interactions with public officials in Sinaloa]. You didn’t tell anybody where you got that information. You didn’t tell anybody who your source is. You referred to some Mexican officials. You probably got the information from social media,” which Briggs said was subject to error and contradiction. “You should be a little more candid with folks and tell people where you got your information. You should tell people why it was so important that you amended your agenda over the weekend to rush and put this on.”
He threatened a lawsuit if the city proceeded that night without making specific the charges against Valencia and giving him an opportunity to respond.
“I don’t think you want to litigate,” Briggs said.
In ensuring that Valencia was provided with due process, Briggs said he would insist upon examining Leon and his council colleagues under oath.
“You are the initiator of this, the instigator,” Briggs told the mayor. “You’ve got to tell the public everything you know. You haven’t done that and that’s what happens in the due process portion of this proceeding. My client’s due process rights allow him to examine witnesses, under oath. Just because your rules of procedure say the rules of evidence don’t apply doesn’t mean the Constitution doesn’t apply.”
Verbally, Briggs made a public records request on the spot.
“I would like all the private and public account email, text messages, voice mails, everything exchanged by any member of the city council to anybody, including other members of the city council about this item,” Briggs said.
Leon sought to face Briggs down, implying that all of the evidence against Valencia was rock solid and that there was nothing to the suggestion that he and the rest of the council were seeking to propound a defense by going on the offensive against Valencia.
“I got all your answers for you in due process,” Leon said. “We’ll do it.”
Briggs responded, “I am glad that you are going to be a witness and that you’ll take an oath to be cross examined during that process.”
Leon didn’t blink. “I’m good with that,” the mayor said.
In his parting shot, Briggs reemphasized that he wanted “All of your communications. It’s hard for me to believe that Ms. Dorst-Porada and Mr. Wapner walked in here tonight, having no idea what was going to be discussed. And if they knew what was going to be discussed, that’d be a Brown Act violation,” Briggs said.
The council meeting drew to a close without a vote of censure being made but rather a vague commitment by the council to have city staff prepare the resolution of censure to provide the council majority with the justification for holding Valencia to account for his supposed malefactions and that it ready a public hearing on the matter and schedule a censure vote at some indefinite point in the future.
Over the next week or so, as a city employee in the city clerk’s office sought to deal with the public records request that Briggs had lodged, their ensued difficulty with the mayor, Wapner, Dorst-Porada and Ochoa, all of whom recognized that the referenced communications constituted proof that they were in violation of the Brown Act or facilitating such a violation. This brought City Attorney Ruben Duran into the process.
It was believed that attorney-client confidentiality would ensure Duran would be able to resist having to disclose any information or details vouchsafed to him by members of the council. Accordingly, he was granted access to some of the communication that had passed among Leon, Wapner, Dorst Porada, Ochoa, City Clerk Mautz and Assistant City Clerk Claudia Isbell from February 17 until February 21, although there has been indication that certain exchanges were withheld from him.
In very short order, Duran came to see, as was communicated to several city officials and members of his law firm, there was no mistaking that Leon, Wapner and Dorst-Porada had engaged in a “cold” violation of the Brown Act in readying for a vote of censure targeting Valencia on February 21. Compliance with Briggs’ public records request would arm him and Valencia with irrefutable evidence that the council majority had violated California law, Duran recognized.
Penultimately, a determination was made that the city would seek to bypass a situation that would most certainly prove to be deeply embarrassing to the council majority and potentially end with the filing of criminal charges against them by withholding from Briggs and Valencia the materials Briggs had sought in his public records request. There followed the formulation of a more elaborate strategy as to how the contretemps might be dealt with, that being the effectuation of an agreement with Valencia and Briggs that the council would drop the censure proposal in exchange for everyone just forgetting about the pending public records request that Briggs had made.
February made the transition to March and then the calendar ran through into April. Under the California Public Records Act, a governmental entity or agency has ten days to comply with a records request by producing the sought-after records, documents or materials. If there are complications or realistic difficulties, the government can extend that deadline for another two weeks.
On April 4, some 18 days after the final deadline for the city to have produced the sought-after records/documents/communications, Valencia, represented by Briggs and another member of Brigg’s law firm, Nora Pasin, filed suit against the city, calling upon the court to force the city to disgorge the materials.
For City Attorney Duran, the filing of the lawsuit precipitated a crisis. The communications and documents laid out before him had led to the ineluctable conclusion that three of his city clients – namely Leon, Wapner and Dorst-Porada – had entangled themselves in a violation of the State of California’s open public meeting law. A violation of the Brown Act, as things normally go, is not deemed to be a serious offense by prosecutors, the courts, other public officials or the public at large, which overall is ignorant of that particular law, its application or its implication. The Brown Act is, if not frequently then occasionally, ignored or breached by the elected officials heading government agencies, oftentimes without being remarked upon by members of the community. Where it does garner attention is among the relative minority of citizens who devote some of their time to monitoring the action of local government. Generally speaking, somewhere around far-flung San Bernardino County – among its 22 city councils, two incorporated town councils, 29 boards of education or school boards, five community college district boards, nine community service district boards of directors, 19 water district boards, and its various fire, healthcare, park and recreation, sanitation and cemetery district boards, virtually every week some accusation of a Brown Act violation manifests, as the members of those panels are prone to immediately vote on agenda items without any discussion whatsoever, triggering suspicions that before the meetings and out of the scrutiny or earshot of the public the members had reached a consensus. On rare occasions, a resident or citizen will lodge a complaint alleging a violation of the Brown Act with the district attorney’s office, which may or may not make more than a cursory inquiry into the matter. Over the last five decades in San Bernardino County, in the handful of cases where the district attorney’s office has launched a serious investigation into such allegations, those matters were resolved with what were essentially relatively innocuous findings that some order of a transgressions occurred, followed by a less than stern warning that the perpetrators should endeavor to not repeat their behavior in the future. No punishments were meted out and no fines, even though conviction on a Brown Act carries with it the gravity of a misdemeanor if a prosecutor elects to pursue it as such.
For the San Bernardino County District Attorney’s Office, as crimes go, Brown Act violations do not rank with murder, fraud, theft, mayhem, bribery, malfeasance and the like on the scale of seriousness that most people perceive; the district attorney’s office therefore does not place much of a priority on enforcing the Brown Act. As such, even where it is clear that such a violation occurred, prosecutorial priorities are such that justice does not demand the filing of charges. In San Bernardino County, one must go back in history more than half a century to find an example of a Brown Act violation being taken to trial, and that was in the case of members of the Needles City Council, against whom the then-sheriff, Needles-born Frank Bland, had some idiosyncratic personal differences and animus.
There is something extraordinary, however, in the current matter involving the Ontario City Council, a feature which Duran picked up on from the outset. What Leon, Wapner and Dorst-Porada engaged in was no mere inadvertency or oversight but something that Duran understood was calculated, malicious and deliberate, acts that were tantamount to a conspiracy that compounded the crimes, potentially elevating them to felonies.
First, the mayor and council members Wapner and Dorst-Porada were not wet-behind-the-ears officeholders who had just been elected to office and were coming to terms with the Brown Act for the first or second time. Wapner, was elected to the city council in 1994 and has served on the council consistently in the more than 28 years since. Prior to that, he was a member of the Ontario-Montclair School District Board of Directors. Leon has been Ontario mayor since 2005 and was a member of the city council for the seven years prior to that, beginning in 1998. Dorst Porada has been on the city council since 2008 and served three years on the Ontario-Montclair School District Board of Directors for three years previous to that. None of the three can make a credible claim of ignorance or lack of familiarity with the Brown Act and its various requirements.
Secondly, all three communicated separately and with one another and with and through Ochoa regarding getting the censure discussion and potential action onto the February 21 meeting agenda. Their communications in part consisted of referencing Valencia’s action in Mexico and citing it as a reason for censuring him, clear evidence that the three were militating toward a consensus on the censure vote.
Taken together with the subsequently expressed reluctance toward/resistance to turning their communications over to Valencia and Briggs, Duran recognized that Leon, Wapner and Dorst-Porada were evincing “consciousness of guilt,” i.e., revealing that they recognized that they had broken the law in their zeal to take Valencia down a peg or two.
Duran, despite being Ontario City Attorney and being caught up in much of what had occurred, including being in attendance at the February 21 council meeting, wanted to put as much distance between the situation and both himself and his law firm, Best Best & Krieger, as he could. Moreover, Leon, Wapner and Dorst-Porada could sense Duran’s uncertainty, apprehension and pessimism. At that point, confronted with the reality that having tossed Valencia the bone of not pursuing the censure against him was not going to dissuade him and his lawyer from pursuing getting a hold of the incriminating text messages and emails they indulged in over the course of February 17 to 21, they understood that the worm had turned and instead of it being a pageant in which they would be able to discredit and politically wing Valencia it was turning into an ugly reckoning in which Valencia was on the brink of hobbling them. They needed a lawyer who would fight rather than head for the tall grass to save his own reputation. That attorney was Stephen Larson.
A former U.S. Attorney who became a federal magistrate judge at the age of 35 and was subsequently nominated by President George W. Bush to a federal judgeship, Larson left the federal bench to go back into private practice in 2009. He has since taken on one complex case after another both civil and criminal. His legal representation involved him in several important civil matters, including the federal government’s effort to compel Apple Inc. to decrypt the iPhone used by Syed Rizwan Farook, who with his wife killed 14 and wounded 22 in a murderous attack in San Bernardino in December 2015; a challenge of the constitutionality of voting districts created by the Arizona Independent Redistricting Commission; and the City of Ontario’s legal action to reassert its ownership and control of Ontario International Airport from the City of Los Angeles.
Larson garnered as much publicity from his participation as a defense attorney in high profile criminal cases involving defendants whom prosecutors had placed a high priority on convicting. Among the defendants he obtained dismissals, acquittals or conviction vacations for were Angela Aguilar in the Foreign Corrupt Practices Act trial of U.S. v. Noriega, former USC Water Polo Coach Jovan Vavic, and Jeff Burum in the Case of People v. Biane et al, which involved bribery conspiracy and misappropriation of public funds allegations against a member of the San Bernardino County Board of Supervisors, two political functionaries and his client, one of the most prolific political donors in the county.
By bringing in Larson, it was Ochoa’s and Duran’s hope that the potentially politically explosive situation involving Leon, Wapner and Dorst-Porada could be defused. Duran, who recognized that mounting a factual defense of the three elected officials was essentially impossible given the activity they had involved themselves in, was relatively confident that Larson, with his penchant for imaginative and intensive focus on technical aspects of the law and his established connections with governmental and court officials, not to mention the immense respect accorded to him in the Halls of Justice, would be able to bring his skill and gravitas to bear to prevent any case against the mayor and two council members from materializing let alone progressing to court and any eventual convictions.
A major risk to Leon, Wapner and Dorst-Porada was that any investigative focus or criminal case that sprung from the circumstance they are bound up in might be pursued by some entity other than the San Bernardino County District Attorney’s Office. Recognized by only a few well-informed individuals within the loop of San Bernardino County officialdom is that the three possessed an ace-in-the-hole in the form of who the San Bernardino District Attorney is. Before he was elected county prosecutor in 2018, Jason Anderson had been a member, from 2004 until 2008, of the Ontario City Council. At that time, he had been a member, with Leon and Sheila Mautz, of the council’s ruling coalition. From 2006 to 2008, Wapner and Councilman Jim Bowman had made up the rival camp on the council. As it were, nonetheless, political fortune for the Leon-led coalition had reversed in 2008 when Dorst-Porada, who was supported by Wapner and Bowman, defeated Anderson in his reelection bid, such that the council had a new-found ruling majority consisting of Wapner, Bowman and Dorst-Porada. At that point, control of the council slipped from Leon’s grasp, as he and Mautz, who was also elected to the council in 2008 as an incumbent after she had been appointed to the vacant position on the council in 2005 when Leon had been elected mayor in a special election that year, transitioned into being the council minority. In 2012, Mautz lost her bid for reelection when she was displaced by Paul Vincent Avila.
Over time, there had been a slow developing rapprochement between Leon and his three rivals, such that at present Leon, Wapner, Bowman and Dorst-Porada represent the council’s ruling coalition.
Similarly, whatever hard feeling once existed between Anderson and Dorst-Porada, who ousted him from his position on the council in 2008, and Wapner and Bowman, who offered Dorst-Porada key support in doing so, has faded. In 2014, when Valencia had sought a restraining order against Wapner to prevent him from making constant sojourns to the Los Angeles Sheriff’s Department Substation in the City of Industry to lodge complaints against Valencia, Wapner persuaded the city council to use City of Ontario funds to hire an attorney to contest the granting of that restraining order. The City of Ontario retained Anderson, who was then an attorney in private practice, to represent Wapner and the city in that regard.
As members of the Ontario City Council in 2018, Leon, Wapner, Bowman and Dorst-Porada were key supporters of Anderson in his successful run for district attorney against the incumbent, Mike Ramos.
With Anderson now in the role of San Bernardino County District Attorney, given their political affiliation with him, Leon, Wapner, Bowman and Dorst-Porada were justified in their confidence that the prosecutor’s office he heads would not treat them harshly over the Brown Act violation accusations that have been vectored their way, and they would be assailed with no punishment more severe than the type of warning letters that had been issued to those elected officials in San Bernardino County who have been caught running afoul of the state’s open public meeting regulations over the past three or four decades.
A wrinkle developed there, however, in that it had not escaped Valencia that Anderson and Wapner, and the rest of the city council, for that matter, had an attorney-client relationship in that Anderson represented Wapner and the city in the effort to keep him from enjoining Wapner from harassing him with his sheriff’s department employer in 2014. To Valencia, Briggs, Valencia’s supporters and various Ontario residents, this constituted a conflict-of-interest which they believe should prohibit the San Bernardino County District Attorney’s Office from being the agency determining how any investigation or potential prosecution of the Ontario City Council or its members should or should not proceed. A better arrangement would be for the California Attorney General’s Office to look into any criminal or civil prosecutorial issues relating to the Ontario City Council, including accusations that any of its members had violated the Brown Act.
One of the reasons that Leon, Wapner, Dorst-Porada and to a lesser extent Ochoa and Duran were so keen on retaining Larson was that Larson has special entrée with Anderson. Larson’s client, Jeff Burum, and Burum’s wife Kellie were the primary providers of the electioneering funding to Anderson in his victorious 2018 campaign for district attorney, having put up $279,900 of the $530,155.70 donated to Anderson by his various supporters. Larson was also a significant donor to Anderson’s political campaign. Larson provided Anderson $4,400 dollars in 2018 for his electoral effort against Ramos and in 2021 he gave Anderson another $4,900 as he was gearing up for his 2022 reelection campaign.
Leon, Wapner, Dorst-Porada, Ochoa and Duran were pretty much convinced that Larson would be able to prevail upon Anderson to resist any call that he recuse himself from overseeing the Brown Act violation investigation and prosecution of the Ontario City Council, thereby preventing the matter from being transferred to the California Attorney General’s Office, which is currently headed by Rob Bonta, a Democrat who is believed to be, if not more hostile, then certainly less favorably disposed, toward the three Ontario officeholders than Anderson.
With the prospect that the matter would remain within Anderson’s prosecutorial purview taken together with Larson litigating on their behalves, Leon, Wapner and Dorst-Porada breathed a collective sigh of relief.
No sooner were they considering themselves to be in the clear, however, than word began making the rounds that they had retained Larson, San Bernardino County’s preeminent defense lawyer, to represent them in the legal action that Briggs was bringing against them on behalf of Valencia as well as to defend them against any criminal charges that might arise from the public exposure of the details the public records act request was threatening to bring to light. With that revelation, Larson’s gravitas at once began to work not in their favor but against them, at least insofar as public perception goes.
Why, Ontario residents began asking, did the city council need a world class defense attorney to go to bat for them if they had done nothing wrong? Indeed, the city’s taxpayers wanted to know, why bring in a defense attorney at all in the face of some picayune issue with the Brown Act, which virtually never animates prosecutors? Even more suspicious to many was the way in which the city was hiding behind Larson and refusing to provide the communications between Leon, Wapner, Dorst-Porada and Ochoa. What, exactly, were they trying to hide?
Just as those questions were reaching a crescendo, a batch of what were purported to be text messages from the four principals in the burgeoning scandal were leaked. As they circulated, what Duran had previously recognized became open knowledge to a cross section of Ontario residents – three of the city’s highest ranking elected officials had disdainfully disregarded the Brown Act and conspired to destroy the reputation of their council rival, utilizing evidence so flimsy as to be nonexistent, attempting to inflate what was little more than a few photographs of Valencia on vacation with his family into some kind of international incident, predicated upon spurious accusations that he was engaging in discussions by which he was committing the City of Ontario to unauthorized contractual obligations and expenditures.
Word is that the text messages and emails that were secreted out of City Hall and into the public domain over the last several weeks are just a fraction of the damning evidence against the city council. It is doubtful that anyone – Larson included – will be able to contain the matter and keep the dam from bursting. Even if Larson is able to convince Judge Janet Frangie, who is hearing the case brought against Ontario by Briggs on behalf of Valencia, that the city need not release any further communications between city officials, those already being circulated establish that the Brown Act was violated, that those violating it did so knowingly and that they were militating to construct a false narrative upon which to justify censuring their colleague Valencia.
The Sentinel this week sought from Larson, as the council’s legal representative, clarification as to whether the text messages and emails purported to have been exchanges between Leon, Wapner, Dorst-Porada and Ochoa over the five-day period of February 17-to-21 which are making the rounds are real or fabrications.
The Sentinel asked Larson if Leon, Wapner and Dorst Porada will contend that the communications that did take place between them over the five-day period in question did not constitute the reaching of a consensus prior to the ensuing council meeting and if the council evaded the technical requirements needed to establish the existence of a “serial” meeting in violation of the Brown Act by relaying its members’ respective communications through the city manager.
Larson did not respond by press time.
The Sentinel has learned that the issues at stake in the circumstance in Ontario have elicited concern over just what might be exposed if the civil case filed by Valencia and its revelations trigger a criminal investigation that leads to a criminal prosecution. In such a scenario, there is a possibility and perhaps even a likelihood that in order to rescue his clients from the political gallows, Larson will need to rely on exposing a closely held secret policy utilized by a large number of cities throughout California to dodge the Brown Act’s serial meeting restrictions.
According to former Upland City Councilwoman Janice Elliott, lawyers who specialize in municipal law and serve as legal advisors to cities and city officials say that a consensus on an upcoming decision by or vote of a city council can be built by utilizing someone who is not a member of the council to do so.
“The city manager, or anyone else, can poll each city council member without violating the Brown Act as long as the council member’s positions aren’t shared with the other council members,” Elliott said.
During Elliott’s six years on the Upland City Council, lawyers with three different firms, including the firm that employs Duran, served as Upland’s city attorney. Richard Adams and Kimberly Barlow with the law firm of Jones Mayer served as the city attorney and deputy city attorney, respectively, of Upland when Elliott was initially on the city council. Jones Mayer currently employs the city attorneys for five California cities and has provided specific area legal services to 69 California cities. James Markman and Steven Flower were the city attorney and assistant city attorney, respectively, of Upland for roughly two years of Elliott’s tenure as a city councilwoman. Markman and Flower were employed by Richards Watson and Gershon, a firm which currently employs the city/town attorneys to 28 California municipalities. Steve Deitsch and Thomas Rice are now and were during the last stage of Elliott’s time on the Upland City Council Upland’s city attorney and assistant city attorney, respectively. They work for Best Best & Krieger, which employs Duran. Best Best & Krieger employs lawyers who are the city attorneys to 30 cities throughout California.
Elliott referenced a passage on page 22 of the publication Open & Public V: A Guide To The Ralph M. Brown Act, which was compiled by the California League of Cities, and paralleled what attorneys claimed was the basis for working around the Brown Act’s serial meeting restrictions. That passage cites California Government Code section 54952.2(b)(2) as creating a loophole for having an outsider confer with a quorum, majority or even all members of an elected body with regard to an issue to be voted upon. That passage states, “A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate conversations or communications outside of an open and noticed meeting ‘with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.’”
In this way, it is possible that Larson may construct a partial defense of what transpired between Leon, Wapner and Dorst-Porada over the course of February 17-to-21 by asserting that Ochoa was merely providing information relating to Valencia’s activity in Sinaloa to his three political masters.
In an effort to stave off what is growingly considered to be an inevitable conviction of at least three members of the Ontario City Council on a Brown Act violation rap, the city has hired top-flight criminal defense attorney Stephen Larson to represent the council.