Rick Herrick, who has been a dominant political force in Big Bear Lake for the greater part of the last two decades, is facing the most serious challenge yet to that primacy as the California Fair Political Practices Commission is now conducting an examination of what some contend are conflict-of-interest issues between his ownership of property in one of the city’s most exclusive lakefront neighborhoods and votes he has made in his capacity on the city council and a local joint powers authority.
At the heart of the matter is whether Herrick, who occupies a key decision-making position within the community, has merely become involved in evaluating and determining whether the City of Big Bear Lake and the Big Bear Area Regional Wastewater Agency should or should not proceed with a project of significant import to the community that would normally fall to someone of his elected and appointed station or whether his judgment with regard to the project has become tainted by the consideration that he will, at least potentially, derive a benefit from the project over and above what a large number of his constituents will enjoy.
Having obtained substantial notoriety and community positioning since taking up residence in Big Bear in 1994, Herrick is the closest approximation of a media mogul as there is in Big Bear as the co-owner, with his wife, of Parallel Broadcasting Inc, the parent company of KBHR 93.3 and 102.5 FM radio. He was the president of the Big Bear Chamber of Commerce, a board member of the Big Bear Valley Recreation and Park District and, from 1999 until 2005, a commissioner on the board of the Big Bear Lake Department of Water.
First elected to the Big Bear Lake City Council in 2006, Herrick was reelected in 2010, unopposed in 2014 and 2018, and elected to represent District 2 in the city’s second by-district election in 2022. He was the top vote-getter among city council candidates in 2006. He has been chosen to serve as mayor six times during his nearly 18-year tenure on the council. He is the chairman of the Big Bear Alpine Zoo Nay Foundation. As an elected official he has been selected for or appointed to several joint powers or adjunct governmental agency boards, including those overseeing the San Bernardino County Transportation Authority, the Big Bear Fire Authority and the Big Bear Area Regional Wastewater Agency, of which he is currently the vice chairman. His membership on the latter panel is in some measure an outgrowth of the extensive experience he picked up during his time on the board of the Big Bear Lake Department of Water.
Big Bear Lake is a man-made body of water, created as a reservoir to provide irrigation in the area around Redlands in 1884/1885. The Rock Dam was replaced by the 20-feet-higher Eastwood Dam, placed some 200 feet further west, in 1912. Water issues in the City of Big Bear Lake, which is located, generally, on the south shore of Big Bear Lake, are crucial to the city.
Among the municipal responsibilities of the City of Big Bear Lake therefore overseen by the Big Bear Lake City Council is the provision of wastewater, i.e., sewer, service, an area of function and jurisdiction which overlaps that of Big Bear Area Regional Wastewater Agency, which is a joint powers authority to treat sewage. Herrick’s status as an elected member of the Big Bear Lake City Council, has consistently resulted in his appointment as one of the two of the council’s five members designated to serve on the five-member Big Bear Area Regional Wastewater Agency Board. The three remaining Big Bear Area Regional Wastewater Agency Board members are appointed by other agencies.
The Big Bear Area Regional Wastewater Agency is the lead agency with regard to the Replenish Big Bear Project. That project will rely on an initial sand filtration process followed by the use of ultrafiltration membranes involving bundles of hollow membrane fibers with pore sizes so small that bacteria and virus cannot pass through them, backed by high pressure pumping of the water through semi-permeable membranes, after which the water is to be subject to ultraviolet disinfection and an oxidation process. That water will then be returned to Big Bear Lake in a quantity sufficient to prevent the level of water in the lake from dropping as it has in recent drought years. Because of the more primitive nature of treatment modalities currently used by the Big Bear Area Regional Wastewater Agency sewage treatment plant, the wastewater processed there is not now put into the lake. The Replenish Big Bear Project would change that.
The Big Bear Area Regional Wastewater Agency jurisdiction extends beyond the 6.42-square mile, 5,059-population City of Big Bear Lake, indeed surrounds the lake entirely, and includes most of Big Bear Valley, which entails Big Bear Lake, Big Bear City, Fawnskin, Holcomb Valley, Sugarloaf, Erwin Lake, Baldwin Lake, Bluff Lake and Lake Williams. Though its name implies that it is a municipality, Big Bear City in actuality is an unincorporated county area, completely separate from and, at 32.03 square miles, larger area-wise than the City of Big Bear Lake and more populous as well, with 12,738 residents.
Herrick resides on the southern shore of the lake, in a gated community within the City of Big Bear Lake called “Eagles Knoll,” in a home he owns there.
According to Joseph Kelly, a resident of Big Bear City, all of the common areas within the gated community of Eagles Knoll are owned equally and indivisibly in common by each parcel owner within the gated community.
“Ownership of common areas is under the name of ‘Eagles Knoll Community Association,’ for the interest of all parcel owners in the gated community.” according to Kelly.
In a sworn statement filed with the California Fair Political Practices commission, Kelly maintains, “Among the common areas apparently owned by Herrick, through the Eagles Knoll Community Association, are a shoreline marina and boat launch ramp. In dry years, the marina and boat launch ramp are dry, unusable and unsightly. Such fluctuating conditions have reduced the value of all parcels in Eagles Knoll, including that of Herrick. Consequently, increasing lake levels would also increase property values greatly in the Eagles Knoll gated community, financially benefiting Herrick directly. Such benefit does not extend to the entire jurisdiction of the Replenish Big Bear Project, most of which is far from the lake. The vast majority of the public generally do not own private property on the lake. Other marinas on the lake are able to move their docks to follow the lake levels; which cannot be done by the Eagles Knoll Community Association. This is a unique situation on the lake, created by a man-made, bottle shaped inlet to the Eagles Knoll Community Association marina and boat launch ramp.”
It is Kelly’s contention that under California law pertaining to public official conflicts of interest, when confronted with a matter in which an appointed or elected official is put in the position of making a decision that will benefit himself, the official should abstain from voting. Refraining from voting in such a circumstance is referred to in the law as making a recusal.
Kelly propounded that “Herrick has repeatedly voted and discussed the Replenish Big Bear Project, as a member of both agencies, for the past several years. Herrick has never, to my knowledge, recused himself on the Replenish Big Bear Project matter. Herrick, when asked about a conflict of interest, obfuscates and denigrates the person asking. Herrick has used his official capacity to obviate any inquiry into the conflict of interest. Pursuant to public records requests, the City of Big Bear Lake and Big Bear Area Regional Wastewater Agency have both failed to produce any documents showing that Herrick acts under advice of counsel; or that such advice has ever been sought.”
According to Kelly, Herrick has maneuvered around the efforts he has made and the efforts that others, including elected officials, have made to get Herrick to acknowledge that a conflict exists and to take the appropriate action, which would entail recusing himself when it comes to votes regarding the Replenish Big Bear Project.
“At a city council meeting, a fellow council member asked the city attorney whether Herrick has a conflict of interest in this regard,” Kelly told the Sentinel. “The city attorney replied that he ‘does not have enough information to render a legal opinion.’ At that time, Herrick, as mayor, cut off the discussion, saying: ‘Asked and answered’ repeatedly, thereby ending any inquiry as to a conflict of interest. If Herrick is ignorant of a conflict, it is willful, and he has stopped any inquiry by use of his position. Herrick’s actions point to his knowing that there is a conflict and covering it up. At the least, Herrick ‘has reason to know’ there is a conflict under Political Reform Act Section 87100. All members on both agencies have access to official legal counsel regarding conflict-of-interest advice. At a Big Bear Area Regional Wastewater Agency meeting, Herrick said that he ‘lives near the Lake, but not on it.’ If this is his reasoning, it ignores the fact that he owns property directly on the lake, even facilities in the lake, a boat launch ramp and marina. Note that Herrick’s residency address is on Marina Court.”
Kelly opined that it is doubtful that Herrick has an ace-in-the-hole in the form of a legal opinion from either his personal attorney, the city attorney or the Big Bear Area Regional Wastewater Agency’s attorney which vindicates him in voting upon matters relating to the Replenish Big Bear Project, since logic would dictate that Herrick would have already marshaled it in his defense. “If any advice of counsel exists, it has not been shared with the public by Herrick or either agency,” Kelly said. “Any advice must include analysis of the facts in this complaint, such as ownership/use interest in the marina & boat dock and the financial effect to Herrick vs. the public generally. There is no evidence of such an analysis, hence this complaint is necessary.”
Kelly postulated that Herrick’s votes on the Replenish Big Bear Project were of benefit to him in a way that was not beneficial to the vast majority of his constituents.
“Furthermore, it seems reasonably foreseeable that the decisions Herrick makes in his official capacity will have a ‘material financial effect, distinguishable from its effect on the public generally,’ as is referenced in Political Reform Act Section 87103,” Kelly said. “Increasing the value of his own lakefront property is easily distinguishable from any supposed effect on the public generally that does not enjoy owning marina property on the lake shore. The public generally has no financial interest in private marinas on the lake. The code does not say that some other supposed benefit to the public generally will suffice. The code says whether it is ‘distinguishable’ from its effect on the public generally. Direct financial benefit of property value increase for a very small set of lake shore property owners is very distinguishable from the public generally, far from the lake.”
Kelly said Herrick is also using the bully pulpit of his elected position to promote the Replenish Big Bear Project outside the context of votes pertaining to it.
“Political Reform Act Code Section 87100 prohibits any discussion or votes regarding conflicted matters, exclusive of stance; but in this case Herrick consistently votes and speaks in favor of the Replenish Big Bear Project, which is even more egregious,” Kelly said. “At a recent Big Bear Area Regional Wastewater Agency board meeting, it was said that the Replenish Big Bear Project would raise the lake level by ‘four feet.’ Herrick replied, ‘More than four feet.’ Evidence shows that Herrick believes the lake level would be raised enough to benefit his property value. As a private gated community, Eagle Knolls is off limits to the public, which is barred from using the Eagles Knoll Community Association marina and boat launch ramp. Yet Herrick has access and use of and an ownership interest in those private facilities.”
According to Kelly, “The People of Big Bear Valley deserve proper representation in such matters as the Replenish Big Bear Project, which approaches $100 Million in estimated cost to our small community. If Herrick is in conflict, the people of Big Bear Valley do not have proper representation.”
An exception is carved out in Political Reform Act Section 87101 which allows an office holder to vote on a matter in which he has a conflict if the circumstances are such that all individuals who could serve as decision-makers on the matter at hand have conflicts and a decision must be made, thereby creating a circumstance in which someone who has such conflict has a higher duty and is therefore “legally required to participate in the pending governmental decision.” Kelly pointed out, though, that there are other members of the community or who are already on the city council or on the Big Bear Area Regional Wastewater Agency who do not have conflicts who could therefore vote on the matter without being in conflict.
“There is no applicable ‘legally required participation in governmental decision’ exemption, as referenced in Political Reform Act Section 87101 in this case, as the City of Big Bear Lake has five seats on its city council and has always been able to appoint a different council member to Big Bear Area Regional Wastewater Agency,” Kelly stated. “It’s Herrick’s failure to recuse himself that creates the lack of proper representation for the people. For a legally required participation in governmental decision’ to apply, Herrick would have to have recused himself, which he never has.”
Kelly said, “The people should know whether or not this is a conflict of interest, through the unbiased investigation of the Fair Political Practices Commission.” He said that is why he made his sworn complaint to the Fair Political Practices Commission.
The Sentinel made multiple appeals to Herrick to provide his version of events and refute Kelly’s contention that his residency in Eagles Knoll provided him with any privileges or access to the lake that others did not enjoy or that he has any individual or actual ownership, as Kelly contends, to lakefront or lake adjacent property. The Sentinel made those inquiries both by email and phone messages. At one point, Herrick did return a call to the Sentinel from his office at his radio station, but when the Sentinel picked up, he abruptly hung up without speaking. The Sentinel returned the call immediately, but Herrick did not pick up, and the call went to voice mail. The Sentinel then left a message seeking a return call, but did not receive one.
The Sentinel inquired about the conflict-of-interest circumstance inherent in the matter with Big Bear Lake City Attorney Stephen Deitsch. Deitsch responded, “[T]hank you for your email. Please be advised that I have no comment.”
-Mark Gutglueck