By Mark Gutglueck
Next Monday at the Upland City Council’s August 12 meeting, on display will be the degree to which the sweeping change Upland experienced with the 2018 election cycle will or will not impact a crucial element of governance in the 74,000 population city. With three of the council’s five positions filled with different office holders than this time last year, two appointments to the city’s seven-member planning commission will be made. The council is scheduled to ratify the two appointees arrived at by a selection committee, one of which is the reappointment of a member who has now served two terms. In addition, the council will make a determination if the planning commission’s long-serving chairman, whose current term does not expire for two years, should be allowed to remain in the leadership role his colleagues on the panel believe he merits.
While it would appear the city council is leaning toward continuity rather than a shake-up of the commission, there is a sizable contingent of civically active residents who feel that an infusion of new blood on the commission, which in a very particular way exercises nearly as much influence on the direction and character of the city as does the city council, is called for.
The City of Gracious Living has enjoyed top drawer status in San Bernardino County for generations. Set below picturesque Mt. San Antonio, and occupying the highland above Ontario, it was established as an upscale neighborhood where the movers and shakers in the Ontario business community at the turn of the 19th Century to the 20th Century moved to, a paradise of Victorian, then Edwardian and eventually Craftsman homes intersticed among citrus groves. From the time of the city’s founding in 1906 onward into the middle of the 20th Century and then into the 1960s, 1970s and 1980s, Upland rivaled Redlands on the county’s east side for the disputed claim to being the Inland Empire’s most stately city. Today, that section of Upland above Foothill Boulevard, Old Route 66, remains, along with sections of Redlands, Chino Hills, Rancho Cucamonga and some neighborhoods in Lake Arrowhead, among the most majestic of expansive San Bernardino County’s districts.
The planning commission has long served as the city’s primary arbiter of the development standards that apply to the builders of the city’s housing stock. For the greater part, the commission has acquitted itself admirably, despite some rough patches, including a scandal of major proportion when the city’s mayor from 2000 to 2011, John Pomierski, a contractor himself, utilized his position of trust and authority to shakedown those applying to build in the city, effectively in many cases denying the project applications of those who refused to pay him off, and arranging go-ahead for the projects of those who were willing to bribe him outright or engage in an elaborate ruse of kicking back to him by either hiring his construction company to do a portion of the work approved by the city’s planning department or otherwise hire him or one of his various associates and co-conspirators as a consultant or subcontractor on the project.
In the years prior to Pomierski’s reign, from the founding of the city’s planning commission in 1930, there was either by power of tradition, natural attrition or the rule of ordinance, regular turnover in the membership of, that is rotation onto and then off, the planning commission. Traditionally in Upland, the mayor selected or nominated the commission’s members, who were then ratified by the remainder of the council. Generally, a commission member would remain in place for a four-year term and on occasion be renominated and confirmed for a second term. Rarely did an individual stay in place on the commission for more than two terms, though in multiple cases the commission’s members graduated up the chain of command, as it were, to be elected to the city council, continuing their civic involvement there. Pomierski made a departure from that tradition. Carol Timm, who had made her mark in Upland in some measure as an advocate for historical preservation, was nominated and then appointed to the planning commission by the administration of the mayor who preceded Pomierski, Bob Nolan. During Pomierski’s tenure, Timm moved into something of an alliance with him and he reappointed her to a second term, then four years later to a third term, and then shortly before he was overtaken by the scandal that ended his political primacy in Upland, to a fourth term. Timm ran, unsuccessfully for city council in 2012. She persisted in her political aspiration and in 2014, shortly after her reappointment to a fifth term on the commission was blocked, she was elected to the city council.
Timm’s re-electoral effort last year failed. Thus, her legacy in Upland consists of her passionate efforts to preserve historically significant properties and structures, her four-year term on the city council and her list of accomplishments thereon, and perhaps most significantly, her having opened the way for planning commissioners to remain in place for more than the traditional maximum of eight years.
For a growing group of Upland residents, however, the wave of monopolizations of planning commission positions by a relative handful of Upland residents is not perceived as a positive but rather an undesirable trend.  Those feeling this way cite multiple reasons. Most simply, they say, a continuous rotation alleviates stodgy and staid repetition. It prevents the formation of clubby and entrenched networks that entail long-running political alliances with members of the city council that come uncomfortably close to being political machine-like in their appearance and function. Constant changeover brings in fresh ideas and is more likely to bring to the commission collective perspectives with regard to new concepts and change in societal orientation and evolution, those advocating constant commission changeover mantain. Moreover, change in the panel provides an opportunity for more people who want to be civically involved to do so and participate in a way that is vital to the community.
A similar rule relating to remaining in place beyond two terms applies to the chairperson of the planning commission. Chairmanships run in two-year terms. The commissioners themselves choose from among their ranks who will serve as chairperson. That selection, however, is subject to the confirmation of the city council. A chairman or chairwoman need get only three council votes to confirm his or her first two two-year tenures as leader of the panel. Upon a third nomination or any nomination thereafter, however, the council must ratify the chairmanship appointment by a minimum of four votes.
A post-Pomierski reform that was put in place was that the mayor no longer has sole nomination authority to the commission. Instead, the mayor, the mayor pro tem, the planning commission chairperson and the city’s development services director interview and evaluate the applicants, with the mayor, mayor pro tem and planning commission chairperson determining who the nominees are to be, with the development services director offering input.
A vestige of the previous principle of term limits yet exists. Any newly nominated individual need only obtain support of a simple majority of the five-member city council to be confirmed. Since it is a foregone conclusion that the mayor, who nominates the candidate, will support his or her own nomination, that means a new nominee need get only two votes of support from the remaining four council members to accede to the planning commission. The same standard applies upon the renomination of a commissioner who has come to the end of his or her first term, such that only three votes of the council are needed to remain in place at that time. However, after a commissioner has served two full terms, if renominated the commissioner must then receive at least four votes to stay on the planning commission.
Among those who feel that the incumbents on the commission who have been renominated and reapproved over and over again are monopolizing a privilege that should be shared more widely is Steve Bierbaum, an active member of the Coalition of Concerned Citizens of Upland.
“From my perspective and in the opinions of most of the members of the coalition, term limits are there for a reason,” Bierbaum said. “The city has gone through an electoral process last year to get new blood on the council. Since that time, we are noting that there have been a few changes in personnel. What we are now in the midst of is selections for the planning commission, and we believe the council should take a very close look at the number of people who did apply. There were more than a dozen applicants. We think there were some outstanding applicants on the list. The planning commission is a very important element of city operations. The commissioners make decisions on approving development applications before they come to the city council. To my knowledge, the city council has never second-guessed the commission. That trend is not likely to change. So the way things are going now, the commission is the gatekeeper for the development of the city. The problem is, when you look at it, there has been very little change on the commission going back over the years. You have the same people, with too few exceptions, in place. For the most part, if someone wants to stay, they stay. One council after another has continued to reappoint the same members. The change comes when someone either gets elected to the council or decides to leave on their own. You have these decisions being made, and I hate to say it, but it’s a little bit of an old boy network. You’ll see something that’s going before the commission and you know it’s a done deal because of that old boy network. Every once in a while you’ll find yourself pleasantly surprised, but most of the votes are entirely predictable. No one who is on there is willing to really stir things up and deviate from what the groupthink is.”
An outgrowth of the contention on the city council going back the last couple of years, Bierbaum said, is that people are paying attention and making their views known on a scale heretofore unknown in the city, both by speaking at the city council meetings and by postings on social media.
“That’s not such a bad thing, in my opinion,” Bierbaum said.
What is apparent, Bierbaum said, is that the dynamic range of opinion and perspective in the city is not reflected in the membership of the commission.
This year, reflecting the dynamic Bierbaum referenced, there were 15 applicants for the two positions on the commission for which the terms expired at the end of June. That is significantly more than have applied on most occasions in the past, yet another indication of the widespread interest and attention for and toward the topic of development in the city.
Fourteen of those 15 turned out to participate in the interview process. Those 14 were Linden Brouse, Grant Genge, Thomas Grahn, Stephanie Guide, Susan Higgens, Brigitte James, Candice Moffitt,  Allen Nicely, Beverly Reyes, Sid Robinson, Brinda Sarathy, Lois Sicking-Dieter, Shelley Verrinder and David Wade.
Of those 14, Verrinder is a current member of the commission, having served at this point the entirety of her two terms.
Following the interviews by the panel that included Mayor Debbie Stone, Councilwoman/Mayor Pro Janice Elliott, Planning Commission Chairman Gary Schwary and Development Services Director Robert Dalquest, both Verrinder and Candice Moffitt-Bowcock were nominated.
Verrinder has 25 years professional experience in transportation planning in the public and private sectors, and is currently the executive director of First Transit Access Services, one of the largest providers in Southern California of transportation services to the disabled.
Moffitt has 20 years experience in municipal planning and has a bachelor’s degree in urban and regional planning and a master’s degree in public administration. She has worked for the City of LaVerne for the past 17 years and is currently that city’s principal planner. Her father is Robert Bowcock, who is a Chino Basin Watermaster.
At its Monday evening meeting, the city council will vote upon confirming the Moffitt-Bowcock and Verrinder appointments.
The council will also take up ratifying the extension of Planning Commission Chairman Gary Schwary’s tenure as the commission’s chairman for another two years. Generally, a chairperson is limited to serving in the chair capacity for two consecutive two-year terms. To remain as chairman beyond that point, the city council must ratify the extension by a vote of at least 4-to-1. Schwary has been a member of the planning commission since 2002 and has been chairman continuously since 2010.
While acknowledging that both Schwary and Verrinder have exhibited competence and dedication during their respective periods on the commission, Bierbaum opined that it is time nonetheless that they leave in favor of bringing other applicants in to serve who otherwise are being prevented from making their own contribution to the Upland community.
“The selection committee has recommended that Gary Schwary be allowed to stay in place as chairman, assuming of course the full commission will again elect him to serve in that capacity, which is very likely to happen,” Bierbaum said. “He is not due to leave the commission for another two years, but it does look like he will stay as chairman until 2021. I think you could say he has done a fantastic job in his role as a commissioner and as chairman. Having said that, I think he should step down as chairman at this time and let someone else move in there. And I think in two years time we should say to him ‘Thank you very much for your outstanding service’ and tell him, sincerely, how much we appreciate what he has done for the city. Then someone else should be appointed. He is in, I believe, his fifth term on the commission. He has been on the commission since the Pomierski era. There are others, very qualified people, who are deserving of a chance to serve.”
With regard to Verringer, Bierbaum said, “I think her time to leave has come. There is nothing personal about that. Realistically, I think as a member of the commission she has made good decisions. She has been straightforward and forthcoming in her decision-making process. But she is ending her second term, and I think to be fair, it is time for us to give others the opportunity that we gave to her.”
Bierbaum is not alone in his view that Upland should share the opportunity to contribute that is being offered to only a limited number of those who have been honored with an appointment to the planning commission. Some of those others are harsher in their assessment of the planning commission’s performance than was Bierbaum.
Many consider the commission’s members to be lapdogs for the powers-that-be at City Hall, who have bent the city’s development standards too readily to meet the dictates of senior staff or project applicants who are politically well-connected or members of the council showing favoritism toward those project applicants. This has resulted in some project approvals that have hurt the city, those critics and observers say.
One case-in-point is the William Lyon project on 8th Street near Campus Avenue. Realistically, Upland has three major east-west arterials – 16th Street, Foothill Boulevard and Arrow Highway. Previously, conditions were such that 8th Street, which is considered a minor east-west arterial, could have have been transformed, in the future if the need materialized, to a major arterial. At a few spots along its length, some homes, garages or other structures were built relatively close to the roadway, such that the street narrowed at those spots. Nevertheless, the possibility of widening the street the entirety of its length across the city existed, had such been deemed absolutely necessary by condemnation of or alterations to those relatively few properties. Furthermore, paralleling 8th Street just to the north is a railroad track that runs the entire expanse of the city east to west. During the city’s highly contentious general plan update in 2015, then-Development Services Director Jeff Zwack pushed the city toward providing for maintaining the width of that rail corridor so a second rail line could potentially be accommodated there to ensure that a future commuter rail system tying San Bernardino County with Los Angles County could become an eventuality. Not six months after the general plan update was passed, Zwack inexplicably reversed himself in seeking to accommodate William F. Lyon in constructing a condominium/attached townhome development along 8th Street east of Euclid approaching Campus that encroached on 8th Street to the south, virtually ending any future possibility that 8th Street could be widened to four lanes at some point, while encroaching on the railroad right-of-way to the north, compromising the possibility of augmenting the railroad corridor there with a second line. No one on the planning commission nor the planning commission as a whole was willing to stand up to Zwack and prevent him from allowing the William F. Lyon Company to effectuate its agenda at the future expense of the Upland community.
Another example of the docile nature of the planning commission in the face of action being pushed by political or administrative forces is the Upland Central complex on Central Avenue. The setback on that building is extremely narrow, such that no possible future widening of Central Avenue at that spot could take place. Moreover, the doors into and out of the westernmost units there are so close to the street that allowing young children to reside in the complex is inadvisable, given the danger that ensues from the consideration that those exiting the building are merely yards away from passing traffic on Central Avenue. The planning commission failed to use its authority to insist that the Upland Central setback be increased. Among planning professionals, Upland Central is considered to be an illustration of incompetence, negligence or graft within the Upland planning division.
One of the 13 applicants for the planning commission apparently overlooked in the current selection go-round was David Wade. Wade over the last two years has made statements that have been critical of the stewardship of the city under Mayor Stone’s watch. It is Wade’s contention, and that of his supporters, that the evaluation of his application had less to do with his qualifications and his avowed interest in the city than it did with political considerations.
In recent weeks and months, the criticism of the city on social media has ramped up. Among those targeted by those postings, including some identifying themselves by their true names, those using avatars and those posting anonymously, has been Schwary, who fairly or not, has been associated with Stone.  Stone, who was elected to the city council in a special election in 2011, then defeated in a mayoral run in 2012, reelected to the council in 2014 and elected mayor in 2016, headed a four-member council coalition which engaged in a number of ultimately unpoplular acts, including closing out the city’s fire department in 2017 while imposing on the city’s residents a parcel tax to pay for the county fire department’s takeover of fire service in the city, along with the selling off of more than four-and-a-half acres of parkland in 2018. All three members of the council who were part of her coalition were displaced with the 2018 election, either through defeat at the polls or by not seeking reelection.
Schwary told the Sentinel today he believes he merits, by virtue of his performance as a commissioner and as chairman, to remain in place as both.
He cited his consistent reappointment to the commission on four occasions, including three occasions when that reappointment could take place only by virtue of at least four members of the council voting for him. On two of those three reappointments, Schwary received unanimous support. Since 2010, Schwary’s commission colleagues have elected him once and reelected him four times to serve as chairman. “That has happened without any campaigns or rallies or anything like that,” he said. “The past councils have approved those selections. The chair isn’t appointed by the council. It’s the commissioners the chair works with who make that decision. Taking that into consideration, I have been the chair without opposition since 2010.”
Schwary said, “I honestly just want to serve. If the council doesn’t want me to serve as chairman, then I’ll serve out the remaining two years of my term as a commissioner and then go from there. If the council doesn’t allow me to be eligible to stay as the chairman, I’ll be disappointed, but I’m not going to throw a hissy fit. I recognize that is the council’s decision to make. I do believe I am qualified and I want to continue to serve in that capacity.”
Schwary acknowledged that “In past years there may have been people appointed and reappointed who were not qualified.” He said he did not consider himself to be among those.
The criticism being vectored at him, primarily that on social media, Schwary said, was undeserved. “There are things that are said, or posted, that are not true,”  he said. “A lot of it is casting a black cloud over the city. They are within their rights to express what they feel. But many of  the things being said are outright false and vulgar. For residents of the City of Gracious Living, they are not being very gracious. Some of it is coming from people who have never actually been to the meetings I have chaired.”
Were those critics to see the board in action while he is conducting those meetings, the criticism would melt, he said.
“I have gotten the confidence of a wide range of people from both sides of the aisle, so to speak,” Schwary said, “on the way I conduct the commission meetings. Whatever the positions are, I give both sides a voice. I don’t run a three-minute clock. I give them five minutes. If the five minute buzzer goes off, I ask if they are close to finishing and let them do so. People just want to be heard. In my opinion, that is the secret to the success of our commission. We are not a rubberstamp. The commission is very diverse.”
Both he and the commission as a whole have defied the preconceived notions of certain elements of the public who have made what turned out to be inaccurate assumptions of the direction the commission was going to take, Schwary said. He referenced a recent decision by the commission to deny the permitting of the erection of a cell tower.
“It was all over social media and everywhere else that it was going to be a 4-to-1 vote to allow it,” Schwary said. “There was one guy in particular who made that prediction and said a few other choice things. It ended up we rejected the application 3-to-2. Afterward, he came up to me and apologized.”
Schwary said he understood that there were plenty of others who wanted to serve on the commission. He said that many of those people are qualified to be appointed. Others, he said, had potential. Still, he insisted, he was a proven entity, and he offered the same assessment of Verrinder. “I am of the opinion that Ms. Verrinder is extremely well qualified,” Schwary said. “She comes to every meeting well prepared, and in discussions she is always on point and uncovers things the average person would not uncover. She has a background in city operations.”
Schwary said he was “puzzled” over suggestions by those opposed to his reappointment as chairman or Verrender’s reappointment to the commission that there was something wrong with them having achieved the favored status they have with the council.
“I would think most cities would appreciate someone who has had a long tenure and has contributed what they can based on their skills and talents,” he said. “When I hear people say that we should be ashamed for having worked so closely with the city’s leaders over the years, I just don’t get that,” he said.
He and Verrender have a well established track record and that is something the community can bank on, he said. He said there were people who had worked to effect the removal of some of the former council members and on behalf of some of the current council members who had now set their sites on him and Verrender. “They’re all for change and their attitude is out with the old and in with the new, but at what cost?” he asked.
On Monday night, Schwary said, he would come before the council and “during my three minutes or four minutes cover everything I can in requesting permission to be reappointed chairman. I’m not going to get crazy, but I am going to tell them I love serving on the planning commission and I am qualified to do so.”
Councilwoman Janice Elliott said that it was her belief that since the commission positions are appointed rather than elected ones, it was appropriate that a limit be imposed on how long those individuals can hang on to the posts they were selected to. “The people in those positions have a lot of clout and the public does not get to vote them in,” she said. “I think we should ensure that they not stay in place forever, no matter how qualified they are. We have a lot of others who are just as qualified interested in serving in those positions, as well.”

More than 16 months after Upland city officials sought to bypass the city’s residents and sell more than four-and-a-half acres of Memorial Park to San Antonio Community Hospital, they have relented in the face of potential legal challenges and will allow the matter to go to a vote during the 2020 California Primary, the Sentinel has learned.
The hospital wants to use the property in question to construct a multistory parking structure to alleviate the increased flow of patients following the hospital’s expansion and its partnership with the City of Hope to establish an oncology facility on the hospital’s campus.
On March 26, 2018, with 72 hours notice, the Upland City Council as it was then composed voted 3-to-1 to reduce the grounds of historic Upland Memorial Park by more than four-and-one-half acres, handing the difference off to San Antonio Regional Hospital to be used for the parking structure.
That came after months of quiet, indeed private and secret, discussions between the city’s senior staff and the management of the San Antonio Regional Hospital. At the March 26, 2018 meeting, after the city council adjourned into a closed door session with then-City Manager Bill Manis, then-Development Services Director Jeff Zwack and City Attorney James Markman, the final terms of the sale of the park property were explicated to the council. At the council’s open public session for its regularly scheduled meeting that took place later that night, the council approved selling 4.631 acres of park property to the hospital, the primary grounds of which adjoin the 38.5 acre park.
In approving the purchase and sale agreement, the council authorized Manis to execute all necessary documents to approve the sale, with San Antonio Hospital paying $906,931.55 per acre, or a total of $4.2 million to acquire the property.
While Mayor Debbie Stone and then-council members Gino Filippi and Carol Timm went along with making the sale, Councilwoman Janice Elliott opposed it. Then-Councilman Sid Robinson was not present at the meeting.
Because it was anticipated that the sale would raise the hackles of the community, the council followed City Attorney James Markman’s recommendation to authorize him to file a so-called validation proceeding intended to foreclose any procedural or future legal challenge to the sale. In its validation action filed with the court, the city invited anyone opposed to the sale to lodge a protest, which would then be heard by a judge rather than being subjected to a vote. The challenge to the validation had to be filed within 60 days. Once the court validated the sale, any future lawsuits contesting the sale would be barred. The calculation by Markman and of the city council majority and senior city staff, which then included Manis and Zwack, was that no one would go to the expense of hiring an attorney to make an answer to the validation petition.
The validation procedure was directed to the courtroom of Superior Court Judge David Cohn in San Bernardino. To the chagrin of city officials, Marjorie Mikels, an attorney living in the city, as well as Cory Briggs, an attorney based in both Upland and San Diego, filed answers to the validation action. Mikels did so on behalf of herself and some of her sister and fellow residents. Briggs did so as an attorney retained by other Upland residents.
Those responses took issue with the sale on multiple grounds. Among those was that the city selling off a slice of the park – in particular the one sold by the council on March 26, 2018, which includes a long extant and actively used baseball field – is tantamount to abandoning public property. Such abandonments, under state law, cannot be effectuated without a vote of the citizens residing in the jurisdiction that owns that property.
Having miscalculated in his assumption that no one would come forward to contest the sale in the course of the validation proceeding, Markman was obliged in the face of Briggs’ and Mikels’ filings to make a convincing case to Cohn that the city council, acting on its own authority, was within its rights to sell off city land. Faced with the argument that a municipality’s abandonment of property it owned and was putting to beneficial public use had to be subjected to a vote, Markman asserted that selling the property did not constitute an abandonment.
Ultimately, some 14 months after the sale of the park property was approved by the city council, on May 29, 2019, Judge Cohn, after hearing the responses to the validation action, dismissed the city’s petition for validation. In effect, anyone with standing – meaning essentially any city resident – was yet at liberty to file a lawsuit challenging the sale.
Meanwhile, in the November 2018 Upland Municipal Election, both Councilman Gino Filippi and Councilwoman Carol Timm were turned out of office, at least in part as a consequence of city resident outrage over the sale of the park property. In addition, Councilman Sid Robinson, who had not been present for the March 2018 vote to sell the park property but who was politically aligned with Filippi and Timm and could generally be counted upon to support them, had not chosen to run in the election.  Councilwoman Janice Elliott, who had opposed the sale, had gained election at the same time by competing in the race as a candidate in the city’s newly created District 2 in accordance with Upland’s switch to an electoral ward system. Replacing Timm on the council was Rudy Zuniga, who viewed the sale of the park property unfavorably. The two other replacements on the council – Ricky Felix and Billy Velto – were either not strongly or in any way supportive of the parkland sale.
At its July 8, 2019 meeting, the Upland City Council considered whether the city should appeal Cohn’s decision. The council, with Elliott, Zuniga and Velto prevailing, voted 3-1 against doing so, with Mayor Stone dissenting and Councilman Felix abstaining.
Thus, were San Antonio Regional Hospital to proceed with the purchase of the 4.631 acres under the terms approved by the city council in March 2019, it would do so at its own peril, since a legal challenge to that action would likely occur.
The Sentinel is reliably informed that San Antonio Hospital’s corporate officers have resigned themselves to the need to obtain city voter approval of the purchase for them to proceed. They have made a request of the city that the city council use its authority to request of the San Bernardino County Registrar of Voters that it schedule a vote on the matter at the next logical occasion for such a vote to take place, that being next March.
Confirmation that such an election will be held emerged this week in a staff report from City Manager Rosemary Hoerning to the council prepared by the city’s recreational services manager, Doug Story, in conjunction with the presentation of the conceptual master plan for Memorial Park being previewed to the city council at its meeting on Monday, August 12. Contained on page 32 of that report is the following statement, “San Antonio Regional Hospital is interested in acquiring the existing southwest quadrant of Memorial Park for a potential joint-use parking lot sponsored by San Antonio Regional Hospital per an agreement with the City of Upland. This acquisition and agreement is subject to voter approval of a ballot initiative scheduled for the March 2020 election.”
While there are elements of the Upland community who are opposed to any reduction of the footprint of Memorial Park, the Sentinel has learned that San Antonio Regional Hospital officials and their advisors are confident that opposition can be overcome by an energetic informational campaign just ahead of the election targeting the city’s high propensity voters explaining the value the hospital represents to Upland as well as the West San Bernardino County community in general, and that enhancing the availability of parking facilities at the hospital is a key component of delivering the services the hospital has to offer.
-Mark Gutglueck

A year after the City of San Bernardino entrusted the bulk of its legal representation to Best Best & Krieger, the city council this week initiated what appears to be the first step toward jettisoning the law firm as its city attorney.
For 113 years, beginning with San Bernardino’s organization along the lines of its charter adopted in 1905, the city had a city attorney elected by the city’s voters, who functioned in conjunction with an elected mayor, an elected city council and an elected city clerk together with the city’s hired staff. In 2016, after 111 years of governing, administering and running the city using the 1905 Charter as its model, a charter redraft was presented to the voters which left the mayor’s political power intact but detracted from the post’s administrative capability, changed the city’s election cyle from one based on odd-numbered years to even numbered ones and dispensed with the elected city attorney and city clerk positions in favor of making those posts appointed ones.
Because City Attorney Gary Saenz had been reelected in 2015 to a four-year term running from April 1, 2016 until March 31, 2020 under the provisions of the 1905 Charter, he was entitled to remain in that elected post until  April 1, 2020. The city attorney’s office, well prior to Saenz’ election to the city attorney’s position as the result of a recall effort against the previous city attorney in 2013, had grown to involve a significant degree of support staff, including four attorneys, investigators, paralegals, and clerical personnel. Saenz had dispensed with the investigators shortly after his election, but had continued to manage the office located on the top floor of City Hall with the assistance of his staff attorneys and the remainder of those employed in the office.
Two years after the new charter’s passage, in compliance with the gradual adaptation to the new terms of the charter that were to be implemented until they were fully in place as of April 1, 2020, Saenz began to shed his support staff, with all of the office’s attorneys leaving along with all but two of his clerical staff. At the same time, the city began to look toward hiring a firm to serve in the role of city attorney.
After considering a host of applicants for the assignment, an ad hoc committee winnowed the competitors, not surprisingly, to the four largest municipal representation firms in Southern California: Best Best & Krieger, Burke Williams Sorensen, Jones & Mayer, and Richards Watson & Gershon. After interviews with attorneys from each of the four with the exception of Burke Williams Sorensen, the committee gravitated toward selecting Best Best & Krieger. Under the contractual arrangement between the city and Best Best & Krieger, Thomas A. Rice, an attorney with the firm who speaks in a clipped British accent, was designated as the assistant city attorney. Rice, as the city’s legal showhorse, is rarely present at city offices or functions and is trotted out only when city officials are seeking to put an urbane foot forward to make a superficial impression on those it is dealing with. Sonia Carvalho, another of the firm’s lawyers, was designated as the assistant city attorney. Carvalho is the workhorse who reports to the mayor and city council. She is serving during the remainder of Saenz’s term as city attorney as his chief assistant, and she is in attendance at city council meetings.
Best Best & Krieger appeared to be a good fit for those running the show in San Bernardino. While Burke Williams Sorensen, Jones & Mayer and Richards Watson Gershon have raised to the level of art being able to read the political relationships among elected city leaders to detect who on any particular governmental panel constitutes the ruling coalition, how firm those alliances are, and what the prevailing attitudes are with regard to the issues before that particular city so to tailor the legal advice they provide to please their client and keep their contracts, Best Best & Krieger has refined the same talent and technique to the level of science.
Indeed, throughout most of the first year that Best Best & Krieger has been serving in the role of San Bernardino’s office of city attorney, it has carried out numerous assignments of instructing those in charge – essentially the ruling majority led by Mayor John Valdivia – how to thread the needle to accomplish its goals. Among those was the firing of City Manager Andrea Travis-Miller, with whom Valdivia had differences. Best Best & Krieger also helped Valdivia and his team engineer a show of power by which Saenz’ rate of pay, based on a total annual compensation package including salary, benefits and add-ons of $246,266 was reduced 45.8 percent over his final nine months in office from $184,700 to $100,000. Best Best & Krieger likewise assisted Valdivia and company in reducing City Clerk Georgeann Hanna’a final nine months of pay from $128,600, based on her total annual compensation of $171,466, to $52,500. Best Best & Krieger, in particular Carvalho, assisted Valdivia and his former assistant chief of staff, Bilal Essayli, in discontinuing the city’s relationship with the law firm of Straddling Yocca, Carlson and Rauth, which had billed the city and received over $25 million for legal services between 2012 and 2018 in conjunction with guiding the city’s action with regard to its 2012 Chapter 9 bankruptcy filing. In return, Valdivia has arranged for the city to vector even more legal work to Best Best & Krieger. It thus seemed that there was an entirely copacetic, indeed symbiotic, relationship between Best Best & Krieger and Valdivia’s political team.
This week, however, on Wednesday night at the city council’s August 7 meeting, a coordinated effort involving Valdivia and one of his council allies, Second Ward Councilman Ted Sanchez, put the city’s continuing relationship with Best Best & Krieger into both sharp relief and future question.
Sanchez timed his move, bringing the matter up just as Valdivia was adjourning the meeting. Valdivia recognized the Sanchez’s request to address the council.
“I’d like to move to direct the city manager to place an item on the next agenda to send out a request for proposal to handle the city’s prosecutions, advise code enforcement, represent the city before the hearing officer and handle the city’s abatement actions,” Sanchez said. “In conversation with my colleagues, it has become clear that we have become frustrated with the slow response and the weak prosecution of those repeat offenders of our [codes]. If I am wrong, I’d love to hear one of my colleagues speak up about that, because they have all been adamant, at least with me, that this has been a major issue, and we need to tackle this.”
Sanchez continued, “My second council meeting, we terminated the contract with Jones and Mayer. We put in place as a stopgap B B & K [Best Best & Krieger] as our prosecutor. I want an RFP [request for proposals] to go out to have law firms submit proposals to the city to do code enforcement prosecutions.”
In actuality, at the January 2, 2019 council meeting, which Sanchez referred to as his second meeting after his December 19 swearing in, the council had authorized then-City Manager Andrea Travis Miller to execute the first amendment to an existing legal services agreement between Jones & Mayer and the city to provide legal services for code enforcement and prosecution services. Sanchez’s reference to the termination of the contract with Jones & Mayer more accurately relates to an action that took place subsequently, when dissatisfaction with the performance of Jones & Mayer manifested. On June 19 the council adopted a resolution consigning the city to contracting with Best Best & Krieger to provide code enforcement legal services. The agreement with Jones & Mayer expired on June 30.
City Manager Teri Ledoux responded, “If I may, it wasn’t a stopgap,” she said. “We actually approved a contract with B B & K to provide those services now. So that just started July 1.”
Sanchez noted that Best Best & Krieger had more than a month to perform and had not done so satisfactorily.
“I believe this council wants an aggressive approach to code enforcement violations and I want an RFP to go out for those prosecutions,” he persisted. “I want a law firm that’s going to go after [egregious code violations].”
Carvalho attempted to mount a defense of her firm’s performance, saying there were “six or seven other law firms under contract to the city” involved in handling the city’s legal issues, which had led to a diffused approach to the code enforcement issue. She sought to assure Sanchez that her firm was “going through the process at the direction of the council to try and consolidate as much as we can so we have one cook in the kitchen, and where necessary we bring in special council. We still have special counsel, so we can coordinate services better.”
Continuing, Carvalho said, “The code enforcement operation was getting direction from like three different sources. They were getting code enforcement direction from Jones & Mayer. They’re getting some sort of code enforcement direction from Cole Huber because there were still some attorneys from that firm that were advising the city on cannabis enforcement issues and then they stated to get some code enforcement or administrative enforcement advice from Best Best & Krieger. That information was brought to the city council two weeks ago. You had an option. You could have renewed the contract with Jones and Mayer, you could have [given] the work to someone else. You could have RFPed it. The recommendation at that time was to contract the digital services with Best Best & Krieger to see if that might get this stuff moving, the code enforcement service, the prosecution of code enforcement services. So that agenda item was brought to you, I believe it was two meetings ago, the 17th of July. The contract’s about one month old, so we’re trying to make up some time and show you some progress.”
“Well, in all honesty, until I see that action from the city council, I cannot recall that action being taken,” said Sanchez. “All I can remember is we had terminated the contract with Jones and Mayer. That was the second council meeting that I attended, the first council meeting in January. It was presented to us as a stopgap. So BB&K would do prosecutions as a stopgap so that there wouldn’t be a lapse in prosecutions of code enforcement violations.”
Carvalho insisted that “Best Best & Krieger did not provide any prosecution services at all until July 1.”
Pressing the issue, Sanchez said, “My motion was to have staff come back with a draft RFP proposal that could be sent out.”
Valdivia remarked that Sanchez was “gaining some votes in support” of his position, but suggested he allow staff to come back with a report on code enforcement.
Sanchez was adamant. “No, my motion stands” he said. “I do want a draft RFP to come back to this city council at the next council meeting, because what will happen is we will get a report and it will be a receive and file, and that will be it. I want the city to take a proactive approach.” He then accused Best Best & Krieger of indolence and not living up to the standards it had espoused in convincing the city to expand its contract with the firm for legal services, including those relating to code enforcement.
“I heard from counsel [Best Best & Krieger in the person of Carvalho] argument after argument about how prosecutions are not aggressive enough, and now, we’re standing back,” Sanchez said. “I want this RFP to go out.”
“Councilman, councilman,” Valdivia said. “I appreciate your passion. I thank you for your eagerness to get at and resolve issues. We need to work with staff here.”
Councilman Henry Nickel said, “I do have concern about our overall code enforcement regime in terms of how we are conducting enforcement, how we are paying for code enforcement, how we are enforcing code enforcement. I want to get a sense of what the plan is. What I’m hearing from a lot of constituents is a frustration that items are getting reported [and not being acted upon]. I am also concerned that we are using general fund dollars to subsidize code enforcement. I’d like to explore the use of an enterprise fund, a mechanism that we can recycle those funds that come from our code enforcement operations back into expanded code enforcement.”
Nickel continued, “I think what I’d like to do is initiate a conversation as to what that would look like if staff can provide some sense of where we are currently with our code enforcement operations and whether or not we can anticipate some kind of discussion in terms of some other types of models we can look at really to step up and increase code enforcement citywide, if possible. So, I do support in concept exploring what options are available in terms of code enforcement and assessing how we can improve the program.”
Sanchez was not dissuaded form moving toward finding a more aggressive firm to handle enforcement at the court and procedural levels.
“My motion stands,” he said.
The council then voted on whether to send out a request for proposals to find a new enforcement attorney.
The motion failed, 3-to-4 with Sanchez, Councilwoman Sandra Ibarra and Councilman Juan Figueroa casting the yes votes.
-Mark Gutglueck

Bishop Gerald Barnes will depart as the spiritual leader of more than 1.7 million Catholics in the Diocese of San Bernardino next June, he announced Wednesday.
“Next June, when I reach the age of 75, I will submit to the Holy Father my letter of resignation as the bishop of San Bernardino. This is a requirement of church law,” Barnes said. “We’ll soon receive a coadjutor bishop, who will spend the year getting to know our diocese and working with me before he becomes the ordinary bishop when I retire. He will be the third bishop of the diocese, following our founding Bishop, Phillip Straling, and myself. At that moment I will leave behind my ministry of the past 28 years, 24 as your bishop.”
The Diocese of San Bernardino was formed in 1978 to oversee what has grown to 92 parishes in San Bernardino and Riverside counties, which formerly fell under the authority of the San Diego Diocese. The Diocese of San Bernardino is the nation’s sixth-largest Catholic diocese and, behind the Archdiocese of Los Angeles, the second largest in California.
Barnes will turn 75 on June 22, 2020, at which point he will become the bishop emeritus of the San Bernardino Diocese, to which he was transferred to serve as the appointed auxiliary bishop in 1992 from his position as the rector of Assumption-St. John Seminary in San Antonio. Following the June 1995 transfer of Bishop Straling to the Diocese of Reno, Bishop Barnes served as administrator of the Diocese of San Bernardino, and on December 28, 1995 was appointed by Pope John Paul II the diocesan bishop, and installed on March 12, 1996.
Born on June 22, 1945 in Phoenix, Arizona to George and Aurora Barnes, he moved with them at the age of one to the Boyle Heights district of Los Angeles, where his parents were grocers, operating their own store. He graduated from Roosevelt High School and earned a bachelor’s degree in political science at California State University, Los Angeles in 1967. He subsequently  attended seminaries in St. Louis, Missouri and in Dayton, Ohio, and officially enrolled in Assumption-St. John Seminary in San Antonio. He was ordained to the priesthood, for the Archdiocese of San Antonio in Texas, on December 20, 1975.
Of note during his tenure as bishop, Barnes crusaded against the strict application of immigration law, decrying the separation of families by U.S. Immigration officials. In his response to the burgeoning sexual abuse scandal besetting the Catholic priesthood, he had the San Bernardino Diocese release the names of 34 priests in the diocese against whom there were what was termed “credible” accusations of the abuse of minors.

Hope Musser, the wife of former San Bernardino County Flood Control Board Member/ San Bernardino County Farm Bureau President Alvin Musser, the mother-in-law of former San Bernardino County Supervisor Jon Mikels and the mother of former Needles Councilwoman Ruth Musser Lopez, has died.
Musser, 98, passed away peacefully at her home in Upland on July 31, 12 years after her husband of 61 years, J. Alvin Musser, passed in 2007.
Born in Abilene, Kansas in 1921 to Lawrence and Grace Frey, Hope had six siblings: Nobel Frey, Helen Eyster, Pauline Sider, James Frey, William (“Bill”) Frey and Alice Kroeker.  She is survived by her sisters, Miriam Frey and Carolyn Wiley.
At the age of 19 in 1940, she left her family dairy-farm where she was a milker, taking a Greyhound bus to Upland. She briefly stayed with her cousin Maynard Engle and his wife, Irene Musser Engle.  There she met Alvin, Irene’s brother, the herdsman and co-owner of Shady Grove Dairy.  Her first employment position was caregiver and house keeper for a Claremont family, but Alvin soon talked her into serving in that same position for his three children, Richard, Elizabeth and Marilyn. That situation changed when Alvin and Hope married in 1946 on New Year’s Day in Las Vegas.  The family grew to nine children, who were raised amid the groves and vineyards surrounding the Shady Grove Dairy that was then on 7th Street and Grove Avenue in Upland.
With Alvin, she raised their children, Richard, Elizabeth, Marilyn, Marjorie, Gordon, Grace, Michael, Ruth and Timothy. Alvin and Hope’s progeny grew to 26 grandchildren,  48 great grandchildren and three great great grandchildren.
Hope served as a Sunday school teacher and kitchen manager at the Upland Brethren in Christ Church for many years.  She was a PTA  member and a Girl Scout leader assisting in the Ontario-Montclair School District.  In her later years, she owned her own apartment business and enjoyed world-wide travels with her husband to Australia and New Zealand, Alaska, Hawaii and Europe and fishing trips in the Sierras with her family.
Visitation and viewing will be held at Stone Funeral Home 355 E. 9th Street, Upland, CA from 5-8 pm on August 15, 2019.  Interment and a brief service will be held at the North View Chapel located in the Bellevue Mausoleum, 1240 W G St, Ontario, on August 16, 2019 at 1:30 p.m., followed by the “Celebration of Hope” at 3:00 p.m. at the Upland Brethren in Christ Church, 845 W. Arrow Hwy, Upland.  A dinner reception will be held at the church’s Fellowship Hall beginning at 4:30 p.m. Family and friends are invited to attend and share stories.
Though Hope loved flowers, in lieu, the family suggests contributions to Pacific Lifeline Mission in Upland.

The athletic look has been a California staple for a while, and it works for both guys and gals.   Football fans wait patiently  for the season to come, and fashion plays a role in the game, too. This isn’t just for the NFL. Were talking about Pop Warner across America, and High School teams, too. In California we love comfort, so the sports look comes easy. We throw on a pair of comfort shoes, jeans, and  favorite sport tops, or for the cooler days flat boots and legging. Let’s not forget the hat! It sounds easy, but it’s true what they say: It’s not what you wear but how you wear it. With the easiest part down,  the styling possibilities have no limit. But what if a team shirt isn’t your thing? You can be creative with an outfit that stays close to your team’s theme and depending on your taste, you can make it loud or neutral. For  a guy black denim, white shirt, and why not a vintage like bomber jacket? For the women out there,  accessories can include a choker, sparkly earring, and a scarf, if weather permits. Guys wear your favorite hat,  or try the big foam finger. As football season is about to begin, it’s always good to plan ahead for Friday Night Lights, or Sunday sports. Whatever you decide, have fun rooting for your favorite team.
“Keep doing what you have to do to help the team out.” -Rob Gronkowski

By clicking on the blue portal below, you can download a PDF of the August 2 edition of the San Bernardino County Sentinel.

Sentinel 08-02-19

By Mark Gutglueck
After only a brief vacancy, the San Bernardino mayor’s chief-of-staff position has been filled by an experienced political operative whose long and storied track record offers a strong indication of the direction the city’s leadership will take over the next two years.
Mayor John Valdivia’s choice of Matt Brown to succeed Bill Essayli, who remained in place as chief of staff for less than seven months, taken together with other recent developments, presages Valdivia’s intention to leap to another political position next year, most likely either California state senator in the 23rd District or Fifth District San Bernardino County supervisor. Moreover, the move is an indicator of Valdivia’s recognition that the city’s re-immersion into bankruptcy within the next three years is virtually inevitable.
Valdivia’s decision to associate himself with Brown is a revealing one.
By the last few years of the last century and in the first years of the Third Millennium, Brown was looking for a way to monetize his interest in politics or perhaps make a career out it. Taking stock of San Bernardino County as one of the last bastions of Republicanism in the Golden State, the Grand Terrace resident made himself into a self-styled Republican Party activist. In Horatio Alger-like fashion he lifted himself by his bootstraps into a position whereby his political activism was transformed into something tangible.
In 2002, Rancho Cucamonga Councilman Paul Biane, a real estate professional and the scion of the Biane Family wine-making dynasty within the by-then fading Cucamonga Wine District, challenged and defeated longtime Second District San Bernardino County Supervisor Jon Mikels. Both Biane and Mikels were Republicans; Biane represented the up and coming generation of West End Republicans; Mikels, once an upstart himself, had aged into a member of the Old Guard. With Mikels’ vanquishing, Biane turned to a set of Young Turks, in this case Brown and Tim Johnson, another youthful GOP acolyte, to assist him in his role as supervisor, making them his chief-of-staff and senior field representative, respectively.
Shortly after taking his new position with the county, Biane formed a political alliance with another up and coming young Republican, Bill Postmus. Within two years of his election to the board, Biane would accede to the position of vice chairman of the San Bernardino County Republican Central Committee, second only in the county GOP hierarchy to Postmus, who was then chairman. Three years later, at the height of his political power, Biane would obtain the simultaneous positions of chairman, like Postmus before him, of both the San Bernardino County Board of Supervisors and the San Bernardino County Republican Central Committee.
The foundation of Biane’s advancement to that enviable position of power had been laid by Brown working on his behalf. For the next several years, the relationship between Brown and Biane would prove a synergistic one. In 2003, Brown, newly enabled and newly empowered by his status as Biane’s chief of staff, had embarked on an energetic project to upgrade Biane’s recent electoral victory in the Second District into a political machine – the Biane Political Machine in which he would be the vicar. As part of this effort, Brown worked to extend Biane’s reach – and that of his own – beyond the Second District. This involved the creation of political action committees that he would control at Biane’s behest and which would gather sizable contributions from Republican donors which the pair could then dole out to candidates of their choosing, including those vying for municipal, county, state and federal office. In this way, their efforts matched those of Postmus and his chief of staff, Brad Mitzelfelt, who likewise created political action committees of their own. This was in time augmented by a bold move by Postmus, Biane, Mitzelfelt and Brown who in 2005 asserted that the sheer expanse of 20,105-square mile San Bernardino County prevented many of the GOP’s representatives in the furthest-flung sections of the county from attending the county Republican Central Committee meetings. Postmus and Biane proposed, and the central committee accepted, creating an executive committee of the central committee that would be empowered to vote in the central committee’s stead on all issues related to the county Republican Party. Postmus then set about naming himself, Mitzelfelt, Biane and Brown as four of the executive committee members and recruiting the remainder of the executive committee members from the ranks of those loyal to him and Biane exclusively, all of whom with the exception of one who were employed by him or Biane as members of their supervisorial staffs. The four – Postmus, Biane, Mitzelfelt and Brown – had become virtual kingmakers in a county which at that time had more registered Republican voters than registered Democrat voters. In only the rarest of circumstances could a candidate for major public office achieve success without first paying homage to Postmus, and by extension, to Mitzelfelt, Biane and Brown.
This circular homage often took the form of tribute – monetary tribute – after a candidate was elected with money doled out by the Central Committee. Once in office, those endorsed by the Republican Central Committee were expected to show their gratitude and allegiance by firing up their own fundraising machinery which by virtue of incumbency allowed them to put the arm on potential donors, and then give back to the political action committees controlled by Postmus, Mitzelfelt, Biane and Brown, i.e., make fund transfers to those accounts for future king-making efforts.
For his part, Brown, a resident of Grand Terrace, created several political action committees, some of which were used to fund political campaigns near his home turf, such as races for the Grand Terrace City Council or the Colton City Council. Those were peripheral efforts, however. Brown’s primary political action committee was the San Bernardino County Young Republicans, which he set up in 2005.
Two years later, the San Bernardino County Young Republicans entity would play a critical role in what Jerry Brown, who was in 2010 California Attorney General, said at that time was “the most appalling corruption case in decades, certainly in the history of San Bernardino County and maybe California itself.”
Then-Attorney General Brown’s reference was to the events and circumstances leading to a $102 million payout of taxpayer money in 2006 to settle a lawsuit brought against San Bernardino County and its flood control district in 2002 by the Colonies Partners over flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial projects in northeast Upland. The Colonies Partners was a consortium of investors led by managing principals Jeff Burum and Dan Richards.
After Postmus and Biane together with then-supervisor Gary Ovitt voted, with then-supervisor Dennis Hansberger and supervisor Josie Gonzales dissenting, to confer upon the Colonies Partners a $102 million payment in November 2006 to end the lawsuit, Burum and Richards in the late winter, spring and early summer of 2007 made a $100,000 donation to the San Bernardino County Young Republicans; a $100,000 donation to a political action committee set up by Ovitt’s chief of staff, Mark Kirk, known as the Alliance For Ethical Government political action committee; and another $100,000 donation to the Committee for Effective Government political action committee, an entity controlled by former sheriff’s deputies’ union president Jim Erwin. Burum and Richards also made two $50,000 donations to the Inland Empire political action committee and the Conservatives for a Republican Majority political action committee, both of which were associated with or controlled by Postmus.
In May 2009, Hollis Randles and Maury Weiss, investigators with the San Bernardino County District Attorney’s Office, approached both Mark Kirk and Matt Brown, aggressively questioning them with regard to the $100,000 contributions to the Alliance For Ethical Government and the San Bernardino County Young Republicans, suggesting that they constituted quid pro quos, i.e., kickbacks, provided in exchange for the approval of the $102 million settlement. While Kirk and Brown initially cooperated with the investigators by agreeing to undergo questioning, Kirk ultimately lawyered up. Unbeknownst at that time to any of his associates, Brown, in exchange for an assurance that he would not be prosecuted, agreed to cooperate with the district attorney’s office. That cooperation included Brown wearing a wire – a hidden audio recording device – while he was at work in Biane’s supervisorial office in an attempt to capture utterances by Biane that would implicate him in bribe taking. That Brown would engage in such drastic action indicates the district attorney’s office actually had, as District Attorney’s Office Investigator Hollis Randles suggested during its interrogation of him in the spring of 2009, sufficient evidence against him to obtain a conviction. Brown’s understanding with prosecutors included his agreement to turn state’s evidence by testifying against those with whom he was formerly closely affiliated.
In 2009 Brown went before a criminal grand jury and testified that he believed there were quid pro quos in involved in the $102 million settlement and the political donations that Burum made following it, and it appeared that Burum delivered payoffs to the supervisors that supported the settlement.
In February 2010 prosecutors with the California Attorney General’s Office working in tandem with the San Bernardino County District Attorney’s Office charged Postmus with receiving a $100,000 bribe, paid in the form of the two $50,000 installments to the Inland Empire and the Conservatives for a Republican Majority political action committees he controlled. Also charged was Erwin, who worked as a consultant to the Colonies Partners during their efforts to have the lawsuit settled and who was later hired by Postmus to serve as assistant assessor after Postmus was elected county assessor. Prosecutors alleged Erwin participated with Burum in an extortion scheme targeting Postmus and Biane that preceded the November 2006 vote and assisted in the delivery of bribes to them after the vote was made. Identified in that criminal complaint as unnamed and uncharged co-conspirators were Burum, Richards, Biane, public relations professional Patrick O’Reilly and Kirk. Conspicuous by his omission from the complaint as an uncharged co-conspirator was Brown. Both Postmus and Erwin, who were charged  variously with a host of crimes including conspiracy, extortion, soliciting bribes, accepting bribes, perjury, filing falsified documents and other violations of the public trust, pleaded not guilty to those charges.
At some point in the spring of 2010, Biane became aware that his chief-of-staff was using a hidden electronic recording device and seeking to entrap him. There ensued strained relations between the two. Brown was put on paid leave after he filed a claim in which he alleged he was being harassed. Brown was then transferred to the county auditor-controller/recorder-county clerk’s office, then headed by Larry Walker. Walker installed Brown as his second-in-command, i.e. as the assistant auditor-controller. In so doing, Walker ousted his longtime assistant and close associate, Betsy Starbuck, who was ignominiously sacked after having served more than twenty years as Walker’s right hand woman, both when Walker was Fourth District supervisor, the position he held before he ran for county recorder/auditor-controller, and as county recorder/auditor controller.
Starbuck’s displacement, after she had served more than eight years in the position of assistant auditor-controller and practically ran the division, to accommodate the inexperienced Brown was imposed on Walker by County Chief Executive Officer Greg Devereaux as part of District Attorney Mike Ramos’s effort to protect a witness seen as crucial to the prosecution of the criminal case that had grown out of the Colonies lawsuit settlement.
In March 2011, Postmus reversed his earlier not guilty pleas and pleaded guilty to all fourteen counts contained in the charges filed against him the previous year along with one other unrelated drug possession count, and agreed to turn state’s evidence. He was the star witness before a newly-impaneled grand jury that heard evidence and testimony from a total of 45 witnesses, including Brown, in April 2011. In May 2011, that grand jury handed down a superseding 29-count indictment that collectively charged Erwin, Burum, Biane and Kirk with conspiracy relating to the alleged bribery scheme. Erwin was hammered with multiple counts, including receiving a bribe, acting as Burum’s agent, perjury, filing falsified documents and tax evasion. Biane was charged with soliciting and receiving a bribe in exchange for his vote. Kirk was charged with receiving a bribe in exchange for influencing his boss, Ovitt, to vote to approve the settlement. Burum was not charged with bribery. Rather, prosecutors fashioned charges against him that alleged aiding and abetting Postmus, Biane and Kirk in receiving bribes, tortured language that was necessitated by the elapsing of the statute of limitations relating to the bribery at the heart of the case, which had occurred some four years previously. The defendants were also charged with conflict-of-interest and misappropriating public funds. No substantive counts of extortion were charged in the superseding indictment. The extortion counts against Erwin in the February 2010 criminal complaint were dispensed with, although extortion implications were wrapped into the broad conspiracy count contained in the May 2011 indictment.
Brown’s testimony before the grand jury in 2011 was a key element in broadening the criminal case to include the three additional defendants.
A paradox running through the indictment was that Brown, who like Kirk was the chief of staff to one of the three supervisors whose votes were crucial to supporting the $102 million settlement and who like Kirk was the founder of and had control over a political action committee that received, just as Kirk’s political action committee had, an identical $100,000 contribution that prosecutors alleged was a kickback provided in exchange for the vote supporting the settlement made by the supervisor each of them served as chief of staff, Brown was not indicted while Kirk was. The clear implication was that Brown, who had been caught up in the alleged criminal activity every bit as much as Kirk was, had avoided prosecution and was allowed to remain in a lucrative position with the county as a consequence of his willingness to assist the prosecution in making a criminal case against his former political associates.
For more than five-and-a-half years, Brown remained as Walker’s top assistant, which included working with him through a reorganization in which Walker handed responsibility for the recorder’s function over to the assessor’s office and took on the added assignment of treasurer and tax collector. In 2014 Walker was reelected to the treasurer-tax-collector-auditor-controller’s office. Less than two years later, in early 2016, he resigned from the post. When the board of supervisors complied with Walker’s recommendation that it appoint Oscar Valdez to serve out the remaining two years of his term as country treasurer-tax collector-auditor-controller, Valdez kept Brown in place as the assistant auditor-controller. Brown thus retained the status, stature and credibility of being an assistant county department head.
After more than five years of legal sparring between defense attorneys for Burum, Biane, Erwin and Kirk and prosecutors, including demurrers filed on behalf of the defendants, several of which were granted by the Superior Court, sustained upon appeal by the prosecution at the appellate court level and ultimately overturned by the California Supreme Court, the long-delayed case against the four defendants went to trial in January 2017.
At that trial, in February 2017, Brown was called as a prosecution witness.
The two prosecutors handling the case, San Bernardino County Supervising Deputy District Attorney Lewis Cope and Supervising Deputy California Attorney General Melissa Mandel, were counting upon Brown to blow a hole below Biane’s waterline and wreak similar damage to Burum, by responding to selectively tailored questions which would essentially replicate his testimony before two grand juries almost eight years and nearly six years before. The expectation was that Brown would lay out for the two juries hearing the case – one impaneled to consider the case against Burum, Biane and Kirk and the other deciding the fate of Erwin – that at Biane’s direction he had used the San Bernardino County Young Republicans political action committee to launder the bribe his boss had received from Burum in exchange for his vote to approve the $102 million lawsuit settlement, and that he, Brown, was himself caught up in the corrupt political machinations of Biane, his one-time boss and best friend and closest political associate.
Upon coming into the courthouse and coming face-to-face with Biane, whom he had not seen or spoken with for nearly seven years, Brown lost his nerve. On the stand, just three months shy of eight years after Brown made a decision to cooperate with investigators and betray Biane, who had elevated him to the position of chief of staff in his office and whom Brown in his testimony described as his best friend and the best man at his wedding, Brown came across as reluctant to fulfill the role the district attorney’s office had taken as an article of faith he would live up to. To dozens of questions put to him by Supervising Deputy California Attorney General Melissa Mandel, Brown responded that he did not know or that he could not remember. Generally, the questions being asked of him were ones he had fielded before, during his appearances before two grand juries, one in 2009 and the other in 2011. Indeed, it was in some measure on the strength of those previous statements that the indictment had been handed down. Prosecutors had expected that Brown would essentially recapitulate his earlier testimony, this time in front of the two juries that were hearing the case.
Brown’s comportment in the witness box under direct examination discomfitted the prosecution. Unable to get Brown to freely and fluidly provide the jury the testimony she had been anticipating, Mandel sought to salvage the prosecution’s case as best she could, trying to revive the case narrative by having Brown read portions of the transcripts of his grand jury testimony or statements to investigators to refresh his recollection before she would then direct questions to him. By quoting passages of that testimony or those statements, she was able to prod him into grudging answers that paralleled his previous testimony that was in some measure damaging to the defendants. But that process was both tedious and awkward, and in some of his responses and remarks Brown was able to express or cast doubt with regard to the complete accuracy of his previous statements. Moreover, by his demeanor, Brown was outwardly conveying that he was being forced to testify contrary to his own volition. This, combined with his assertions he vouchsafed in his testimony that he been bullied and intimidated by the district attorney’s investigators, conveyed the impression that he might have previously been telling investigators what they wanted to hear rather than what he knew or believed to be the truth. Mandel was so frustrated by Brown’s intransigence that at the close of his first day of testimony after he and the jury had exited the courtroom, she told Judge Michael Smith, the judge presiding over the trial, that “This is a very different Mr. Brown than we expected to see. Obviously, something has gotten to him.” Judge Smith concurred, stating, “I’m making a finding he [Brown] is being intentionally evasive.”
After Brown endured two-and-a-half days on the witness stand under direct examination by Mandel, he was thereafter subject to cross examination by defense attorneys, who for months had been preparing an aggressive line of questioning for the witness meant to severely damage his credibility. Yet, that strategy was suddenly deemed inoperative in light of Brown’s bearing and the apparent hostility he had evinced on the stand toward Mandel.
Indeed, Brown’s tenure as a witness at the trial would evolve to feature what can be described as surreal overtones, as the prosecution on occasion found itself seeking to impeach its own witness while the defense filled the role of seeking to uphold the credibility of an individual who had been instrumental in assisting investigators and prosecutors in assembling the case against the accused.
Stephen Larson, the lead defense attorney for Jeff Burum, was able to elicit from Brown that he was essentially unconvinced, despite his earlier testimony before two grand juries and the suggestions of district attorney’s office investigators to the contrary, that there had been anything improper or illegal about the $100,000 contribution his San Bernardino County Young Republicans political action committee received in June 2007 from the Colonies Partners. Larson doubled down, getting Brown to say as well that he did not believe there was anything illegal about the county’s $102 million settlement with the Colonies Partners, which again ran contrary to Brown’s grand jury testimony.
Brown’s testimony under cross examination revealed that he was interviewed/interrogated by district attorney’s office investigators, who were in the main led by Hollis Randles, nine times in person and 12 times over the phone from April 2009 through April 2010, totaling 20 hours of recorded conversations. Many of those contacts with the investigators related to efforts by Brown to audio-record Biane, and on at least two occasions, Postmus. All told, between September 2009 through April 2010, Brown surreptitiously recorded 87 conversations totaling about 26 hours, most of those with Biane.
Larson, in his cross examination of Brown, also focused on the fashion in which the investigators, in particular lead investigator Hollis Randles, browbeat and sought to intimidate him while seeking to extract from him statements to further the case the district attorney’s office was attempting to build, despite Brown’s repeated assertions that the words they were laboring to place in his mouth were not true.
“They were trying to get you to change your answers, correct?” Larson asked Brown.
“Correct,” Brown said.
Larson questioned Brown about the prosecution’s contention that Biane had secretly controlled the San Bernardino County Young Republicans political action committee, one of the recipients of the $100,000 contributions made by the Colonies Partners in 2007 which prosecutors characterized as disguised bribes.
Brown acknowledged that Biane had control over the political action committee along with him and another Biane staff member, Tim Johnson, but indicated there was nothing secret about it and that Biane had openly and actively raised the majority of the money brought into the committee.
Larson elicited from Brown that it was his idea to create the San Bernardino County Young Republicans club and its accompanying political action committee.
“It wasn’t created to receive bribe money, was it?” Larson asked.
“No,” Brown said.
Larson pressed Brown to state that his statements to investigators and before the grand jury were based in large measure on rumors, his opinion rather than his direct knowledge or his efforts to placate his interrogators to get them off his back. With regard to Brown’s statements before the grand jury to the effect that the Colonies settlement was tainted by graft or bribery, Larson asked, “You speculated before the grand jury?”
“Yes,” said Brown. “I think it was my opinion and I trusted my gut feeling.”
Brown’s retreat during the trial from his testimony before the two grand juries he went before in 2009 and 2011 proved disastrous for the prosecution. Ultimately, after an eight month trial, Burum, Biane and Kirk were acquitted of all of the charges against them. The jury deadlocked on all of the charges against Erwin, after which the prosecution moved to dismiss the case against him.
Mandel, Cope and then-District Attorney Mike Ramos considered bringing perjury charges against Brown, but put that on hold while the trial was yet ongoing. When Burum, Biane and Kirk were acquitted and his jury failed to convict Erwin, the district attorney’s office and the California Attorney General’s Office forsook bringing criminal charges against Brown.
By 2017, most of the high ranking county officials who had been in on the deal with Brown by which he was spared prosecution and rewarded beforehand with a lucrative and prestigious sinecure in what turned out to be the county treasurer-tax collector-auditor-controller’s office were no longer in place. County officials in 2010 were willing to make the trade for Brown’s anticipated testimony because a convincing performance by him during the trial held out the promise that the $102 million that was paid to the Colonies Partners in 2006 and 2007 in the lawsuit settlement might be recovered. After Brown’s testimony during the actual trial, at the county’s command echelon, among the county’s top administrators in county’s chief executive office suite, there was a sense that Brown had put one over on everyone. Nevertheless, cashiering him in the immediate aftermath of the failed prosecution of Burum, Biane, Erwin and Kirk would have been unseemly, and Oscar Valdez, the county treasurer-tax collector-auditor-controller, kept him in place as the assistant auditor-controller.
In the 2018 election, Valdez’s effort to hang onto the post he had been appointed to following Walker’s exit proved unsuccessful, when Ensen Mason, who had vied against Walker in 2010 and 2014, outpolled Valdez in the November 2018 race.
Upon coming into the office in January, Mason made clear that he intended to fill the assistant auditor-controller position with a licensed certified public accountant. He agreed to keep Brown in place during his transition into the office while he searched for a suitable long term assistant auditor-controller, giving Brown an opportunity to find another position.
This week came word that Valdivia had settled on hiring Brown to replace Bill Essayli, who voluntarily departed as the mayor’s chief of staff last month.
The reviews of Essayli’s performance in San Bernardino were mixed. An attorney who had been a member of the bar since 2010, Essayli was employed for a time as an assistant U.S. Attorney. Restricted by the Hatch Act, Essayli left the U.S. Attorney’s Office to vie in 2018 for the Assembly in California’s 60th District, which encompasses the northwestern corner of Riverside County. Meanwhile, he went to work with the Irvine-based law firm of Pacheco & Neach. After his defeat in the 2018 election, having been introduced by others within Republican Party circles to Valdivia, Essayli accepted employment as Valdivia’s chief of staff. Pacheco & Neach indulged him in filling that assignment, yet keeping him of counsel with the firm.
Essayli is credited with assisting Valdivia in making his transition into office in replacing immediate past Mayor Carey Davis, whom Valdivia defeated in the November 2018 election.
Valdivia’s mayoralty was hampered in some measure by the city’s voters’ 2016 passage of a revamped San Bernardino Municipal Charter, which superseded the city’s 1905 Charter. Whereas the 1905 Charter had endowed the mayor with not only political power but administrative power that nearly equaled that of the city manager, the 2016 charter redraft perpetuated the mayor’s political power while it virtually eliminated the position’s administrative reach.
Valdivia’s intent in seeking the mayor’s post was to be able to orchestrate the city’s official action in a way that was more consistent with the power the mayor had formerly exercised. Upon coming into office, by beefing up his personal staff from four existing positions answerable to the mayor and city council to 14 positions working under the council with nine of those directly answerable to the mayor, Valdivia appeared to be seeking to undo the strictures that had been imposed on the mayor with the charter change.
Though Valdivia started off as mayor in December with what looked to be majority support on the council, he and Essayli encountered rough sledding as they moved to increase the mayor’s influence at City Hall. From late February and throughout March and into April, it appeared that defections from Valdivia’s political team on the council had left him unable to control the city. Ultimately, it appears, Valdivia was able to overcome that with the May election of one of his political protégés, Juan Figueroa, who moved into the position on the council, Third Ward councilman, that Valdivia had to resign from to move up to the mayor’s post in December.
Ultimately, Essayli was able to assist Valdivia in consolidating power and ultimately taking political control of the council, while asserting himself administratively by terminating former City Manager Andrea Travis-Miller and replacing her with Miller’s assistant, Teri Ledoux, who is widely considered to be Valdivia’s puppet, based upon a number of backroom arrangements between the two which were intended to remain outside of public scrutiny but which have since seen exposure.
Essayli’s efforts on Valdivia’s behalf also included delving into matters which were previously played close to the vest by city staff, such that much of the information formerly intimately guarded by the city’s senior administrators and department heads has been provided to the city council up front, allowing the council to formulate policy as opposed to being presented with prepackaged action items by staff. Along the way, however, Essayli came into conflict with Councilman Fred Shorett, Valdivia’s most vocal opposition on the council, as well as Councilman Jim Mulvihill, who is equally at odds with Valdivia but less openly expressive of his disapproval of the direction the mayor is seeking to usher the city toward. For a time, Councilman Henry Nickel, who had been Valdivia’s primary ally during the last several years of Mayor Davis’s tenure, had fallen out of synchronization with Valdivia and Essayli as well. That rough patch appears to be over.
The most formidable challenge to Essayli and Valdivia existed, and in Valdivia’s case continues to exist, in the form of the financial abyss the city finds itself precipitously teetering over. In 2012, the city was forced to take refuge in Chapter Nine bankruptcy, remaining in that state for nearly five years, during which it stiffed some 209 city creditors for more than $350 million. Upon emergence from bankruptcy in 2017, it was believed the city could remain on an even financial keel going forward. But the city’s expenses continue to outrun its incoming revenue, and if the current trend continues, by October or November of 2020, it will have blown through all of the reserves the city was able to cultivate while it was being artificially propped up by the protection of the bankruptcy court. At that point the city will need to contemplate yet another bankruptcy petition filing.
When Essayli, with Valdivia’s support, this spring sought a raise over the $96,000 salary he was being paid, the move gained no traction.
Essayli’s replacement by Brown, an old political hand who was instrumental in engineering Biane’s rise to a position on the board of supervisors as well as the successful candidacies of dozens of others in the 2000 to 2010 timeframe, may be an indication that Valdivia is contemplating jumping from the mayor’s post to another elected position, perhaps that of Fifth District County Supervisor or 23rd District California Senator, both of which are up for election in 2020. With a second bankruptcy about to descend upon San Bernardino and with Valdivia and his team reportedly despairing of any way to stave it off, Valdivia may feel it necessary to detach himself from San Bernardino before he becomes permanently identified with the city’s second sojourn into bankruptcy. It is a historical fact that San Bernardino filed for bankruptcy just six months after Valdivia was sworn into his council office in San Bernardino’s Third Ward in 2012. That bankruptcy destroyed the political careers of Pat Morris and Carey Davis, Valdivia’s two predecessors as San Bernardino mayor. Were Valdivia to be at the helm of the city when it makes another bankruptcy filing within a decade of its last, his viability as a politician would plummet.
As assistant auditor-controller, Brown was being paid  $157,943 in salary together with some $78,000 in benefits, bringing his total annual compensation to roughly $236,000. The San Bernardino mayor’s chief-of-staff position pays from $96,120 to $116,832 per year with benefits valued at roughly $40,000 annually. Reports are that Valdivia pulled strings to have Brown hired above the $96,120 starting step, a move which had already prejudiced some city employees against him, with charges that he was being given compensation that was improper or illegal. Whatever pay grade Brown will begin with in San Bernardino, it represents a substantial pay cut over what he was earning with the county.
Brown is vested in the county’s retirement system, known as SBCERA. The city participates in a separate retirement program through the California Public Employees System. Government pensions are calculated by a multiplier of 2 percent, 2.25 percent, 2.5 percent, 2.75 percent or 3 percent, depending on the age of the retiree and his or her number of years in place, times the number of years employed times the highest salary earned by the retiree over a one-year period.  Because they are separate systems, Brown will not be eligible to use the $157,943 salary multiplier he now has with SBCERA in his calculation for his California Public Employees Retirement System pension until he has been employed for five years with the city or another governmental entity functioning under an arrangement with the California Public Employees Retirement System. If Valdivia departs as mayor next year by getting elected to another office. Brown will be obliged to leave the city’s employ as well, such that he will not be able to convert his city retirement into the same formula he is eligible for under his vesture with SBCERA. If, however, Valdivia succeeds in winning next year’s race for supervisor, and Brown follows him there to become his chief of staff, he can re-immerse himself into the SBCERA system. If Valdivia vies for and succeeds in winning the 23rd District California Senate position, Brown can perpetuate his participation in the California Public Employees Retirement System and potentially achieve the five years within that program to make him eligible to marry his SBCERA pension benefits to his California Public Employee System pension benefits.
Brown previously applied, and was considered by Valdivia, for the chief of staff position last year. Ultimately at that time, Valdivia elected to hire Essayli.
Some observers were perplexed by Valdivia’s choice of Brown to serve as his chief of staff, given Brown’s history of having cooperated with law enforcement in seeking to arrest, prosecute and imprison his former boss, Biane. This consideration is especially addling, given that Valdivia is under scrutiny by the FBI and other law enforcement agencies over allegations of bribe-taking and accepting campaign money in exchange for political favors.
Despite the naysayers, some individuals familiar with both Brown and Valdivia believe that Brown will make a perfect fit as the chief of staff to the San Bernardino mayor.
One of those is Neil Derry, a former county supervisor as well as a former San Bernardino city councilman.
Brown’s bona fides, credentials and experience in government, particularly his role as Biane’s chief of staff in the county’s Second District, qualifies him to hold the chief of staff post in San Bernardino, Derry said.
“I worked with Matt personally while I was at the county,” Derry said. “I believe he will do a good job for John, who is smart enough to listen to him and use him in ways that would be most effective. Matt has organizational skills, people skills, political skills, project skills and a strong policy background. He is very familiar with San Bernardino. He is dialed in on what it will take to manage the city, which is facing a host of challenges. My sense of it is he is the perfect choice for the job.”

In apparent defiance of the prevailing sentiment on the Upland City Council and a ruling by Superior Court Judge David Cohn, Upland City Attorney Jim Markman is pushing ahead with the final processing of San Antonio Regional Hospital’s purchase of a portion of Upland’s Memorial Park.
On March 26, 2018, with 72 hours notice, the Upland City Council as it was then composed voted 3-to-1 to reduce the grounds of historic Upland Memorial Park by more than four-and-one-half acres, handing the difference off to San Antonio Regional Hospital to be used to accommodate a multi-story parking structure.
That came after months of quiet, indeed private and secret, discussions between the city’s senior staff and the management of the San Antonio Regional Hospital. At the March 26, 2018 meeting, after the city council adjourned into a closed door session with then city manager Bill Manis, then-community development director Jeff Zwack and city attorney James Markman, the final terms of the sale of the park property were explicated to the council. At the council’s open public session for its regularly scheduled meeting that took place later that night, the council approved selling 4.631 acres of park property to the hospital, the primary campus of which adjoins the 38.5 acre park.
In approving the purchase and sale agreement, the council authorized Manis to execute all necessary documents to approve the sale.
According to Zwack, the city used an independent third party appraiser to reach a conclusion that the park property has a value of $893.975.38 per acre, making the 4.631 acre parcel worth $4,140,000. Zwack further reported that San Antonio Hospital agreed to a purchase price slightly above $906,931.55 per acre, such that the hospital is paying $4.2 million to acquire the property.
While Mayor Debbie Stone and then-council members Gino Filippi and Carol Timm went along with making the sale, Councilwoman Janice Elliott opposed it. Then-councilman Sid Robinson was not present at the meeting. It was suggested at the time that Robinson was opposed to the sale but was unwilling to cut crosswise of the council majority, with which he was aligned.
It was anticipated that the sale would raise the hackles of the community. As such, the council, at Markman’s recommendation, authorized him to file a so-called validation proceeding intended to foreclose any procedural or future legal challenge to the sale. In its validation action filed with the court, the city invited anyone opposed to the sale to lodge a protest, which would then be heard by a judge rather than being subjected to a vote. The challenge to the validation had to be filed within 60 days.
Once the court validated the sale, any future lawsuits contesting the sale would be barred.
The validation procedure was directed to the courtroom of Superior Court Judge David Cohn in San Bernardino.
Part of the calculation made by the city council majority and senior city staff, which counted Manis and Zwack among its ranks, was that no one would go to the expense of hiring an attorney to make an answer to the validation petition.
That calculation proved mistaken, however, as Marjorie Mikels, an attorney living in the city, as well as Cory Briggs, an attorney based in both Upland and San Diego, filed answers to the validation action. Mikels did so on behalf of herself and some of her sister and fellow residents. Briggs did so as an attorney retained by other Upland residents.
Those responses took issue with the sale on multiple grounds. Among those was that the city selling off a slice of the park – in particular the one sold by the council on March 26, 2018, which includes a long extant and actively used baseball field – is tantamount to abandoning public property. Such abandonments, under state law, cannot be effectuated without a vote of the citizens residing in the jurisdiction that owns that property.
Having miscalculated in his assumption that no one would come forward to contest the sale in the course of the validation proceeding, Markman was faced with having to make a convincing case that the city council, acting on its own authority, was within its rights to sell off city land. Faced with the argument that a municipality’s abandonment of property it owned and was putting to beneficial public use had to be subjected to a vote, Markman sought to convince Judge Cohn that selling the property did not constitute an abandonment.
The matter complexified, at least for Markman, when as a consequence of the November 2018 election, there was a three-member changeover on the city council in which Timm and Filippi, who supported the sale, and Robinson, who had not opposed it, were moved out of office. Replacing them was at least one new member – Rudy Zuniga – who viewed the sale of the park property unfavorably. The two other replacements on the council – Ricky Felix and Billy Velto – are either not strongly or in any way supportive of the parkland sale.
Ultimately, some 14 months after the sale of the park property was approved by the city council, on May 29, Judge Cohn, after hearing the responses to the validation action, dismissed the city’s petition for validation.
At its July 8, 2019 meeting, the Upland City Council considered whether the city should appeal Cohn’s decision. The council, with Elliott, Zuniga and Velto prevailing, voted 3-1 against doing so, with Mayor Stone dissenting and Councilman Felix abstaining.
At this point Markman, having been shut out in Cohn’s courtroom and directed by his political masters on the council to forego trying to legally justify the sale, inexplicably is seeking to push through with the sale. Markman has seized on two points in allowing the sale to proceed. The first is the consideration that Judge Cohn, in rendering his ruling dismissing the validation action, had not determined specifically whether or not the sale of the park property constituted an abandonment thus requiring voter approval of the sale. In this way, there has been no ruling one way or the other about the validity or legality of the sale, according to Markman. Secondly, the city council has not taken any specific action to to rescind the sale. Thus, according to Markman, the sale is still on.
The hospital must proceed at its own peril in making the purchase, however. Because of Judge Cohn’s dismissal of the validation action, anyone with standing is free to sue both the city and the hospital over the sale. Whether that will occur is subject to further calculation. While at least some Upland residents were, as demonstrated, willing to file an answer to the validation petition, the more expensive proposition of actually filing suit to stop the sale is another matter.
The rationale for Markman’s recent maneuverings is opaque. Though his support of the sale in 2018 and his filing of the validation effort was consistent with the wishes of the majority of the council at that time, the changeover in three-fifths of the council since has made it relatively clear that the current council is not in favor of perpetuating the sale. The July 8 vote by the council against appealing Judge Cohn’s decision resounded as a signal that sentiment on the council is currently moving against closing the deal with San Antonio Community Hospital on the park property purchase.
The next Upland City Council meeting will not take place until August 12. That meeting’s agenda will not be generated until August 8, at which point an item calling for a recission of the sales agreement may or may not be included on that schedule of possible council action.
-Mark Gutglueck