In the eyeball-to-eyeball stare down between San Bernardino Acting City Manager Rochelle Clayton and City Attorney Sonia Carvalho, Clayton has blinked.
Carvalho has been with the city since 2018, when she was brought in to serve as assistant city attorney. That was some 18 months after the city’s residents had voted in November 2016 to recalibrate the municipal charter the county seat had been functioning under since 1905. The new charter did away with the administrative authority the mayor had formerly been entrusted with and eliminated the elected city attorney, city treasurer and city clerk positions, effective in 2020. In preparation for the change, then-City Attorney Gary Saenz had shed some half-dozen staff attorneys in his office and the city made ready to hire an outside firm to serve in the capacity of general counsel to the city. The law firm of Best Best & Krieger, which is the largest public agency law firm in the State of California, was chosen to fill that role. Carvalho is a partner in that firm. When Saenz departed in 2020, Carvalho stepped into the role of city attorney and another partner, Thomas Rice, replaced her as assistant city attorney. Jason Baltimore another partner, was made deputy city attorney. One of the firm’s associates, Thomas Maldonado, was retained to advise and represent the planning commission. Elizabeth Hull, a partner with the firms, is advising the city with regard to the disposition of the Carousel Mall Mall property.
Over the years that Best Best & Krieger served as the city’s general counsel, Carvalho and the members of her firm gave the city and its officials what has been generally deemed sound advice as well as what some contend was less than perfect counsel. In many cases, city officials heeded their lawyers and in others, some or all of the city’s officials did not adhere to the direction they had been given. There were and remain multiple examples of the city having been blindsided by circumstances and events in which entirely unanticipated or unforeseen developments led to litigation or legal challenges the lawyers from Best Best & Krieger had no prior input or involvement. In at least a few cases, Carvalho and her colleagues coached the city through a legal minefield unscathed or relatively so; on occasion, the firm gave advice to city to stand its ground, leading to a favorable outcome. In some other cases where the city fought rather than folded, it fared worse. In several cases – including ones brought by three former employees against the city and former Mayor John Valdivia as well as one brought against it by a man, Steve Carrigan, whom the council offered to hire as city manager but who later spurned that offer – Best Best & Krieger convinced the council to settle with substantial payouts to the plaintiffs that some thought excessive. On occasion, Carvalho has grown confrontational in public with some or all members of the city council. She openly accused unnamed members of the city council of making misrepresentations, outright lying or deliberately withholding information, throwing a pall over the entire panel. Over the last year, a testy relationship has developed between Treasure Ortiz and Carvalho, who was elected to the city council representing the Seventh Ward in November. Ortiz has been critical of Carvalho, while also being outspokenly critical of several members of the council. In June, Carvalho at a council meeting characterized Ortiz as someone who “knowingly and maliciously make[s] false statements.”
Ortiz ran for mayor in the 2022 election, placing fourth behind the incumbent Valdivia, while Helen Tran and former City Attorney James Penman finished first and second. Tran beat Penman in the November 2022 runoff. Thereafter, there was a frosty relationship between Ortiz and Tran, based on a multitude of policy differences. Recently, however, Tran and two of the current but outgoing members of the city council, Ben Reynoso in the Fifth Ward and Kim Calvin in the Sixth Ward who were defeated in their March primary races for reelection, have made clear they want the city to part with Carvalho and her firm entirely if that is what is needed to replace her. In recent weeks, Tran began casting around for another two votes on the council to support jettisoning Carvalho. She was hopeful that those two votes might be provided by Seventh Ward Councilman Damon Alexander, who like Reynoso and Calvin, was voted out of office in the March primary and will leave the council on December 18; or Third Ward Councilman Juan Figueroa; or perhaps Second Ward Councilman Sandra Ibarra.
Rochelle Clayton, who had worked 17 years in the finance department with San Bernardino County, later held the position of finance director with the City of La Habra Heights, the chief financial officer for both the High Desert Water District in Yucca Valley and the West Valley Water district in Rialto, the administrative services director and deputy city manager with Banning before she became assistant city manager in Menifee, was lured to San Bernardino to serve as deputy city manager by then-City Manager Charles Montoya in April. Not quite six weeks later, on May 22, the city council fired Montoya and designated Clayton as interim city manager. Over the next four months, Clayton built enough of a rapport with the mayor and entirety of the council that on October 2, during a closed session back-and-forth with her, the council assented to having the qualifier “interim” removed from her title and extending an employment offer to her and finalize her appointment as full-fledged city manager at the next regularly scheduled council meeting. Because the council was engaged with a California League of Cities meeting on October 16, that meeting was canceled, and the hiring was pushed off until the November 6 meeting.
In the interim, however, based upon Councilman Ted Sanchez’s inquiry, carried out under the auspices of the California Public Records Act, it was learned that the California Department of Housing and Community Development in July had approved providing the City of San Bernardino with a $17 million Homekey Program grant to be used for its effort to establish a comprehensive homeless services and housing facility on the former School of Hope campus on Sixth Street, which Clayton had not informed the council about and which she without input from the council or informing its members had turned down.
The revelation that the city had foregone the reception of the grant because of Clayton’s unilateral decision gave enough members of the council pause that the decision to finalize the contract with her on November 6 was continued to a future date.
On December 18, what is to be the newly composed city council will be installed, with Kim Knaus replacing Reynoso representing the Fifth Ward, Mario Flores replacing Calvin representing the Sixth Ward and Ortiz replacing Alexander representing the Seventh Ward. Last month, Tran’s, Reynoso’s and Calvin’s plans were coalescing around effectuating the promotion of Clayton, terminating Carvalho and freeing the new council of what they perceived to be her dysfunction, while enabling Clayton a free hand to move the city in a progressive direction. On November 20, they were looking to have their second-to-last hurrah, which consisted of an item on that day’s regularly scheduled city council meeting agenda which consisted of the consideration of Carvalho’s firing. That effort was boosted by a memo authored by Clayton which offered the conclusion that Carvalho’s departure would be desirable.
Carvalho, however, had caught wind of what was coming and before City Clerk Genoveva Rocha finalized the agenda for the November 20 meeting, she slipped onto it an evaluation of her performance which was to take place during the closed session for that meeting. Rocha sought to confirm with Clayton whether to comply with Carvalho’s instruction to schedule the evaluation, but was unable to reach her before the posting was made, so she included the closed session evaluation of Carvalho on the meeting schedule.
At the outset of the November 20 meeting, with neither Clayton nor Carvalho having arrived, Mayor Tran raised an objection to Carvalho having violated protocol by usurping Clayton’s authority in controlling the agenda. She sought to remove the closed-door discussion of Carvalho’s performance from the agenda before the council adjourned into that closed session. The mayor wanted the discussion of terminating Carvalho and her firm to be conducted during the public portion of the meeting, which would include input from the public. She knew there were several city residents that were present who wanted to encourage the council to cashier Carvalho and Best Best & Krieger altogether and start anew with a different law firm. This was part of Tran’s strategy to persuade Ibarra, Figueroa and Alexander to go along with the firing.
As it would turn out, however, through the use of parliamentary procedure, both Shorett and Sanchez, neither of whom were enthusiastic about getting rid of Carvalho, were able to thwart Tran’s effort to hold the discussion of Carvalho’s termination in public and bring the matter to a vote. A major factor preventing the action was Alexander’s belief that any determination about the future composition of city staff – including keeping or dispensing with Carvalho or promoting Clayton to city manager – should be made not by the outgoing council but rather by the incoming council, which will have to work with the city manager and city attorney for the next two years.
During the course of the meeting, Knaus, Flores and Ortiz addressed the council. While Knaus’s comments were generic and upbeat, saying that she looked forward to engaging with her future council colleagues in a spirit of cooperation, she gave no precise indication of where she stood vis-a-vis either Carvalho or Clayton. Flores made no reference to Carvalho, but encouraged the council to promote Clayton, whom he praised and said he looked forward to working with. Ortiz, whose loathing of Carvalho is no secret, like Flores made clear she wanted Clayton to be put into place as the city’s manager going forward.
By the end of the meeting, what had emerged was that there was no clear consensus on whether to promote Clayton nor whether to keep or fire Carvalho on the current council and little prospect of a consensus on those issues once the new council is in place.
Unmistakably, the mayor and both Reynoso and Calvin are in favor of promoting Clayton and terminating Carvalho. Ortiz, who will replace Alexander, is similarly resolved. Flores is a vote in favor of hiring Clayton. By inference, based upon Clayton’s memo supporting the firing of Carvalho, he is a likely vote to terminate her. He has not, however made any explicit statement to that effect.
Alexander will not support terminating Carvalho nor promoting Clayton. His sentiments at this point, however, like those of Reynoso and Calvin, are moot, since they are leaving office on December 18 and no opportunity for a decision impacting Carvalho’s or Clayton’s future with the city will take place while they are in office.
Sanchez is opposed to firing Carvalho and is opposed to promoting Clayton. Shorett is opposed to firing Carvalho and has not publicly committed one way or the other with regard to promoting Clayton.
Both Ibarra and Figueroa appeared, during the November 20 meeting, to be resistant to being stampeded into any action with regard to either Carvalho or Clayton, while both seemed to be leaning, at least slightly, against firing Carvalho. Figueroa did not come across as being disinclined to promoting Clayton, but was not pushing anyone in that direction. His decision to come across with a fifth or sixth vote in her favor may ultimately rest on his perception as to whether she will have either four or five votes in her favor, in which case he will probably vote to promote her. Ibarra was, essentially, unreadable with regard to whether she will support Clayton’s promotion. She strongly rejected Calvin’s insinuation that the council majority was not acting to fire Carvalho because those members of the council were in some fashion corruptly aligned or entangled with the city attorney.
Given the enmity that now exists between on one side the city attorney and on the other side both the mayor and incoming Councilwoman Carvalho, there will be, at best, some degree of awkwardness in having Carvalho remain as the city attorney and the legal representative of and advisor to two people who can’t stand her. Moreover, there is a slight but diminishing prospect that Clayton will yet be promoted to city manager, which would heighten that awkwardness toward unworkability, given the contents of the memo Clayton authored in which she essentially recommended that the city council end the city’s relationship with Carvalho and her firm.
Things have evolved somewhat since November 20. Most notably, the last council meeting before the installation of the new council on December 18 took place on December 4. That meeting, as noted, was the last possible chance for Mayor Tran and the council as it is currently composed – Sanchez, Ibarra, Figueroa, Shorett, Reynoso, Calvin and Alexander – to promote Clayton and fire Carvalho. Neither took place.
As reported previously in the Sentinel, the council had moved toward having an independent and outside evaluation of the performance of the city manager, the city attorney and the city clerk. What has now been revealed is that the firm carrying out that examination is Jacob Green & Associates. The suggestion was previously that given the strong feelings on the council – consisting of Sanchez and Shorett – in favor of Carvalho, the intense sentiment against Clayton by Sanchez, the vigorous opposition – by Tran, Reynoso, Calvin and soon to be Ortiz – to Carvalho and the passionate support evinced for Clayton from Tran, Reynoso, Calvin with that of Flores and Ortiz forthcoming, it might be best to allow those who have no prior prejudices one way or the other to do a dispassionate evaluation of both Clayton and Carvalho, with Rocha thrown into the mix. That analysis could be used, it was thought, provided the members of the council were able to set their preconceptions, expectations and opinions aside, to determine whether to promote or not promote Clayton, whether to stay the course with Carvalho or replace her, and whether Rocha should remain or the city should find someone else.
Things changed however, before the December 4 meeting got under way. And then, things changed again the day after. Around noon on December 4. Clayton informed the city council that while she remained interested in being appointed city manager, she was going to withdraw from her post as acting city manager and return to her role as deputy city manager as soon as the city finds someone else to move into the role of interim or acting city manager.
Clayton’s move was a calculated one, born of her understanding that the city council’s October 2 declaration that it was going to offer her the city manager contract is no longer operative and that the votes to again offer her the contract are either not there or are exceedingly iffy. If, as it appears, the city is to conduct a competition, statewide search, nationwide search or recruitment for the post, there is a better than average chance she would not be chosen, she recognizes. If she is at that point functioning in the capacity of acting city manager, the city could, and probably would, let her go. If, however, she is serving as deputy city manager and she does not prevail in the city manager selection process, she would be able to remain as deputy city manager.
Her withdrawal as acting city manager has further implication as to Carvalho’s survivability. While the sheer awkwardness of having a city manager who advocated in a memo that the city council terminate the city attorney and keeping that city attorney in place would likely prove unbearable, given the degree of coordination on issues of substance that must take place between a city manager and city attorney, by moving Clayton into the position deputy city manager reduces, considerably, the circumstance of incompatibility that has come about since the memo was written and Mayor Tran’s November 20 putsch targeting Carvalho failed.
The city council postponed going into closed session until the end of the meeting, during which it was slated to discuss the dismissal of the city attorney and the appointment of an interim city attorney. Participating in that closed session was an adjunct attorney, who was referred to as Theodore Stream, referred to as “independent counsel.” Upon emerging from the closed session, no indication was given as to the action taken with regard to the dismissal of the city attorney and the appointment of an interim city attorney. Mayor Tran did say that during the closed session, the council voted 6-to-1, with Councilman Shorett dissenting to have Jacob Green & Associates carry out an evaluation of Carvalho, Clayton and Rocha during a special meeting scheduled for 2 p.m. on December 11. At that point, however, Carvalho stated that she might not attend the meeting on December 11. ‘I’ll let you know if I’m available,” Carvalho said. I wasn’t consulted on the time or date, so I’ll let you know.”
The following day, yesterday, December 5, it was learned that Jacob Green & Associates would not be available for the meeting either, as it was called at too short of notice.
Furthermore, it was pointed out, since Clayton is withdrawing as acting city manager, her performance will not be subject to Jacob Green & Associate’s evaluation.
Thus, a recommendation to the incoming council on December 18 as to whether Clayton, Carvalho and Rocha should remain in the current positions will not be made.
It was suggested that a decision by the city council as it will be composed after December 18 as to who should or should not serve in the city manager, city attorney and city clerk’s roles should not be undertaken for at least six months after Knaus, Flores and Ortiz are sworn in, to give them an opportunity to observe the function of those they will be passing judgment on.