Recently I’m seeing the men pop up in turtlenecks. Wow! They sure look good in them, too. There’s something minimal yet classic about the turtleneck. This is not a piece to be taken only casually. It can also be dressed up. There’s also something nostalgic about the turtleneck, kind of mod-like. It’s a standout piece by itself, and  especially in men. Whether it’s a bomber jacket, coat, or blazer, you’re going to look great. Pairing a turtleneck with jeans or dress pants is another neat feature. The possibilities on wearing and pairing a turtleneck are endless. Fashion is all about having fun, and the turtle for men is definitely a sophisticated piece to have in your wardrobe. Have fun!

“A turtleneck is about sophistication.”  Dwyane Wade

By clicking on the blue portal below, you can download a PDF of the January 10 edition of the San Bernardino County Sentinel.

Sentinel 01-10-20

In Upland, sharp differences have manifested over the proposed development of what appears to be the largest and most energetic non-residential construction project in the City of Gracious Living in more than a decade.
In June El Segundo-based Bridge Development Partners previewed during a city workshop what it then said were its plans to construct a three-building warehouse complex involving 977,000 square feet under roof, entailing 150 truck bays/loading docks.
The project was to be sited on 50.25 acres east of Central Avenue and just north of Foothill Boulevard in Upland below Cable Airport on property owned by the Bongiovanni Family Trust, where the Bongiovanni Construction Company was once headquartered and which subsequently hosted Dineen Trucking and later a construction materials and composite supply operation owned by Ken Beck.
In October, Brendan Kotler, the vice president of development for Bridge Development Partners, told a special confab involving the Upland City Council, the Upland Planning Commission and the Upland Airport Land Use Committee that proposal had been scaled back by more than two-thirds, involving a single building of 276,250 square feet, described as a retail and logistics center. According to Kotler, the number of truck bays was radically reduced to 25.
On December 16, the penultimate refinement of the project description was released by the city as the central element of the initial study/mitigated negative declaration process needed to comply with the California Environmental Quality Act, which requires that it be circulated for a review period prior to its consideration for adoption by the city council.
Under the California Environmental Quality Act, an initial study on any development proposal is required. Based on the study’s conclusion relating to the seriousness of the impacts the development will have, one of two primary types of environmental assessment of the project must be carried out before it can be given clearance to proceed. One consists of a full-blown environmental impact report in which all of the consequences of the project both during construction phase and after its completion are cataloged, together with the plans to mitigate those effects. The other type of environmental assessment is a so-called negative declaration or mitigated negative declaration. A negative declaration is a written statement prepared by the agency overseeing the jurisdiction in which the project is proposed which describes how it is that the project will not have a significant effect on the environment, together with the assertion that the preparation of an environmental impact report for the project is therefore not necessary. A mitigated negative declaration is a negative declaration that incorporates revisions  to the originally proposed project that will avert or mitigate impacts generated by the project such that no significant impacts on the environment will occur, together with an assertion that an environmental impact report is not needed. The revisions outlined in a mitigated negative declaration are also referred to as mitigation measures. For a project to gain approval and be allowed to legally proceed, the legislative/decision making body overseeing the jurisdiction in which the project is to be located must sign off on and approve either the environmental impact report, or in the alternative the negative declaration or mitigated negative declaration for the project.
As was presented in June, the facility upon completion was to feature an operation that would entail on a daily basis at least 263 eighteen-wheeler trucks delivering merchandise to the warehouse and several thousand delivery vans dispatched from the warehouse to deliver packages of merchandise to customers. Extrapolating on that representation, together with the assertion by Bridge Development Partners that the building was intended for occupancy by a “Fortune 10 company” and Upland Development Services Director Robert Dahlquest’s subsequent identification of the facility as one involved in “e-commerce delivery,” residents were driven to the conclusion that the tenant was to either be Amazon, the internet product delivery giant, or Walmart, which has experimented with the on-line delivery of ordered products in some out-of-state locates, such as Indiana.
For a good number of Upland residents, the prospect of such an operation, generating a significant degree of traffic emanating away from the complex north and south on Benson as well as east and west on both Foothill Boulevard and Baseline/16th Street was too onerous to be contemplated.  Networking and coordinating with one another, they galvanized dozens, then scores and now hundreds of Upland residents to oppose the project.
They decried the traffic, air and sound pollution and visual blight the project would represent.
Bridge Development, in apparent reaction to the resident discontent, previewed the project in its scaled back form in October.  The reduction of the complex from three structures to one, the square footage from 977,000 to 276,250 and the number of truck bays//loading docks from 150 to 25 did not appreciably diminish the opposition. The project’s adversaries pointed out that the number of 18-wheelers coming onto the property were only a portion of the problem. Rather, they said, it was to be the sheer number of delivery vans leaving and returning to the warehouse that represented the greatest potential erosion of the citizenry’s quality of life. They zeroed in on the more than 1,300 parking spaces the project will involve, translating to a tremendous number of vehicle trips to and from the premises daily, subjecting the Upland environs to what they said was an intolerable degree of traffic and unhealthful vehicle exhaust emissions. The conversion of the property from its current use into the project envisioned by Bridge Partners would entail an intensification of the use of the property northeast of where Central Avenue dead-ends into Foothill Boulevard.
Parenthetically, the project opponents noted the heavy lobbying campaign the company was carrying out, which included schmoozing influential members of, and entities within, the Upland community, including the Upland Chamber of Commerce, which endorsed the project. This effort to charm the powers-that-be using the company’s largesse and political reach belied the unhealthy nature of the development proposal, its opponents asserted.
On December 16, when the draft initial study/mitigated negative declaration was publicly posted with the initiation of the 37-day review period for that document, it was revealed that the project building is proposed to be one level at a height of 44 feet with a total of approximately 201,096 square feet under roof, of which approximately 191,096 square feet would be warehouse/parcel delivery uses and 10,000 square feet would be office/retail uses. The office/retail component would include an office area for employees, and a small area for visitors to pick up pre-ordered packages.
Heather Crossner, Bridge Development’s first vice president for development, this week told the Sentinel that the citizen alarm over the project was unwarranted. The project, she said, represents a major step forward for the Upland community. “This is likely the first and last opportunity for Upland to do something with this property,” she said. Queried as to how the project would enhance rather than negatively impact the city and its residents, Cossner said, “There are a number of things. This site is naked land except for the dirt and rock crushing operation there that generates dust and has numerous pollution issues. We believe this improvement to the Foothill Corridor will be a huge catalyst for the community.  Upon completion, it will provide 300 permanent jobs, not including the 700 to 800 jobs it will provide during the grading and construction phase. We will be planting more than 1,000 trees on the property. This will transform that now-blighted property into something that is much more attractive than it is now, fitting to be the gateway to Upland. It will be one of the first things people will see coming off the 210 Freeway.  We will be totally repaving 13th Street along the project site and Central Avenue as well. There will be improvements to the landscaping along Central Avenue, where now there is no curb, gutters or sidewalks. We will be putting in curbs, gutters and sidewalks. This will make the entire area much more attractive to investors.”
Crossner said the project as it is proposed by Bridge Development is ideally suited to the property. “It is next to an airport,” she said. “You can’t have hotels or a hotel tower next to an airport. If you look at what we are doing, that is the best that can be done within the area we had to work with.”
Bridge Development had taken the public reaction to what had originally been proposed to heart, Crossner said. “What we have done is reduced the scale. We cut something that was close to one million square feet down to 200,000 square feet. We tried to be responsive to what people asked us to do. We are trying to make it as compatible as possible with the surrounding area. The largest step we have taken is complying with how people objected to the number of trucks. We heard that loud and clear. We have reduced the number of daytime trucks to only five.”
She said there would be 25 truck deliveries to the terminal daily, implying that 20 of those deliveries will come during the night or in the dark of early morning.  “We made a huge reduction during daytime operations,” she said.
The primary activity at the facility, Crossner said, will consist of the loading and departure of delivery vans. Though she did not give a precise number of vans, based upon information in the mitigated negative declaration and the context of her comments, roughly 650 to 700 vans will function out of the facility on a daily basis.
“We will have 25 product delivery trucks [eighteen wheelers] come into and unload right into the building, with most of that occurring overnight,” she said. “The only thing that will happen during the day is vans will take the goods and deliver them to people who are already getting home deliveries. We are not going to create any new demand by our presence, but we will be better able to serve those purchasing on-line, who will now be getting their packages quicker. The larger trucks will bring the projects in and the smaller vans will bring it to peoples’ doors. The Upland operation will make the company more nimble, more flexible. Many of those served will be Upland residents, but not exclusively.”
Though Crossner did not identify the company, her description seemed to be a further confirmation that the company that will operate from the distribution center will be Amazon.
The impact on the city’s streets and traffic circulation will be minimal, Crossner insisted.
“At peak hours, there will be 50 van trips onto Benson, which is only about two percent of the traffic on Benson at that time,” she said. “On Baseline Road there will be roughly 20 trips during peak hours, which is less than one percent. That is a pretty small addition to traffic that is there right now.”
Upland, Crossner said, would derive the benefit of being host to a major outlet for “a Fortune 10 company, which in and of itself will make the city so much more attractive to investment. This will spur the development of other establishments which will come in to service the employees. There will be more and newer building. This will be a huge catalyst.”
Last night, Thursday January 9, the Upland City Council, the Upland Planning Commission and the Upland Airport Land Use Committee held a joint workshop at City Hall to carry out a discussion of the draft initial study and draft mitigated negative declaration for the project. The vast majority of those who spoke indicated opposition to the project.
Mark Walters, a member of the city’s traffic and safety committee as well as of the  Upland Coalition of Concerned Citizens, said “A cost-benefit analysis shows this will cost the City of Upland way more than the benefit, and I recommend you vote no to this potential city-bankrupting project. Bridge Development states this “unknown company’s” vehicles, which include semi trucks, vans and cars, will only be using Baseline Road, Benson Avenue, Foothill Boulevard and Central Avenue to access their facility. Using my calculations, it has been determined that these four roadways are 24,051 feet long, or in other words, 4.55 miles. Using the national average, it costs $1.25 million dollars per mile to repave a roadway. To repave these designated roadways, it will cost our City of Upland $5,687,500 for just one repaving. Also using national averages on a heavily-traveled road, you can expect the need to repave these roadways every ten to fifteen years. Being a 50-year lease, and using this national average, the City of Upland will spend $22,750,000 out of Upland’s general fund to maintain these designated roadways. Please keep in mind this does not include inflationary costs, nor does it include lane striping or intersection sensors.”
Steve Bierbaum, who has a leadership role in the Upland Coalition of Concerned Citizens, said, “I absolutely believe that site should be developed. I am opposed to it being developed in this manner because I’ve seen over the past two years, quite frankly, how the city has operated, the position they have taken, the direction they have taken to ensure that this particular development moves forward. They’ve been aware of it, the illegal operations that have occurred, the deals that were made two years ago over this, subsequent deals over a year-and-a-half ago to provide easements from West End Water to Bridge Development [through the landowner] Bongiovani.”
Bierbaum said he had made “personal observations of illegal operations on Airport Drive and the Bongiovani site. I can absolutely prove by documentation, video and photographs that the city was aware of illegal operations, the importing of dirt onto that site which did not discontinue until San Bernardino County Environmental Health got involved. Yet there is an MND [mitigated negative declaration] that we’re supposed to just accept and just move on while there’s all these new projects going on on the west end of the city. Please ensure that you request an environmental impact report on this.”
Irmalinda Osuna focused on Bridge Development’s failure to identify its tenant. “Amazon has a very bad reputation,” she said. “This is why their name is not disclosed in this plan and many of the other plans you see in the Inland Empire. They pay poverty wages. They pay millions of dollars into cities to influence policy decisions. I’m concerned this would set a very dangerous precedence with this company.”
Roger Stevenson, a civil engineer said, “The building is almost a third smaller but the activity hasn’t decreased. There will be highly active loading areas on the north and south side. Those areas should be included within the overall square-footage of the building when you are figuring things like parking and employee-area-related stuff. The square-footage should really be up around 300,000 or more. A careful reading of the Upland general plan, looking at the proposed zoning for the site, says limited warehousing. On the south side of Foothill [Boulevard], it specifically says warehousing and distribution. So, the general plan is based on a distinction between warehousing and warehousing and distribution. On that basis the proposed site does not meet the general plan. Finding A [of the mitigated negative declaration] indicates that it is compatible. Well, it might be compatible but that doesn’t mean it meets the zoning requirements. The existing traffic impact analysis did not adequately represent the traffic that would result from this particular facility and that’s both total trips and, more importantly, the hourly distribution of travel to and from the facility.” Stevenson said the data used in the analysis was inaccurate “and therefore any recommended road improvements [in the mitigated negative declaration] aren’t valid.”
Moreover, Stevenson said, “The retail analysis memorandum [included in the mitigated negative declaration] has got nothing to do with anything. The site isn’t zoned that way and I think that was put in there as a diversion from doing what is needed, which is to look at the details of the project.”
Leland Marks, a 13th Street resident, decried the traffic congestion on his street. “I can’t even get out of my driveway most of the time or I get ran over,” Marks said. “I came up here to speak about the people who have to live with this traffic. It’s horrendous. With all the impact of Amazon building this facility and the impact of the traffic just from what they’re going to do, what’s this going to be like when we have this and the people who have to live here are impacted? This is not the City of Gracious Living like it used to be when you have to fight and put up with this.”
California State University at San Bernardino Economics Professor Eric Nilsson said  “I took a close look at the air quality assessment and a close look at the greenhouse gas emissions assessment, and frankly I did not like what I saw. To not mince words, the studies are so poorly done they need to be set aside as inadequate. There needs to be a full scale environmental impact study performed. There are mathematical errors in some of the tables. The tables refer to appendices that do not have material that is supposed to support the material in the tables. So, someone revised these reports and failed to actually make things synchronize. It is pretty shoddy work. As one example of questionable assumptions that are included in the air quality assessment and the greenhouse gas assessment: Built into the model that the consultants generated was the assumption that when a vehicle leaves the warehouse to deliver something, the average number of miles they go is going to be 6.9 miles. 6.9 miles for an Amazon delivery? It takes that long to get to La Verne, but then once the truck gets to La Verne, it drives around for a couple of hours delivering packages, racking up sixty miles more above the 6.9. That is just one error out of many, or one questionable assumption of many. The implication of that is the air quality assessment reports and the greenhouse gas assessment reports, what they do is they grossly underestimate the number of miles that will be driven by vehicles associated with their warehouse. By grossly underestimating the number of miles that will be driven by those vehicles, they grossly underestimate the greenhouse gas emissions and other sort of noxious fumes that will be generated by those vehicles.”
Natasha Walton said, “I think this definitely needs a biological impact report. Just looking over the biological section of the habitat assessment, people need to know what they are going to be losing. We should know what we are going to be losing biodiversity-wise. We are going to be losing the cottontails, the squirrels, the habitat there for raptors to come and forage. We’re going to be losing the plant diversity there.”
Walton, who is herself a biologist, said the study was inadequately done, as it was based on a single day of observation by a biologist in late August when many of the species of the area are dormant.
April McCormick said, “I have never called this a warehouse because it is not a warehouse. This is a logistical terminal. I assumed the planning board and the unified planning ordinances would list a terminal as well as a warehouse as a permitted use. To my surprise there is no terminal classification in Upland. The city code says it is strictly prohibited. This can’t even be approved with a special use permit or a variance.”
McCormick said surrounding cities that have Amazon facilities have not classified them as warehouses. Amazon will be moving “motor freight” from the facility, McCormick said. “What this needs to be is a terminal,” she said. “There are 1,100 delivery vans and 25 trucks. Anything over five trucks is considered a terminal. You have a fiduciary duty not to approve this because it is not permitted in the land use code.”
During a break in the proceedings, McCormick’s remarks relating to the city code not permitting a truck terminal within the city limits provoked what turned into something of an embarrassment for the city when exchanges between Upland Development Services Director Robert Dahlquest and City Attorney Steven Flower inadvertently picked up by a microphone were broadcast citywide on the video of the proceedings. That conversation revealed that neither Dahlquest nor Flower had a grip on whether or not the Bridge project fit within the city’s zoning codes.
“So, what about that warehousing definition, facilities for the storage of commercial goods?” Dahlquest can be heard asking Flower. “So, can I say that it’s within the definition of warehousing and light industrial? That’s a permitted use?”
“Is that your opinion?” Flower responds. “You obviously thought so all this time.”
“No, no, I want to know what your opinion is,” Dahlquest says.
“Like I said, it’s industrial,” Flower says.
“What should I say it is?” Dahlquest, who is supposed to be the highest land use authority in the city asks.
When Flower, whose command of the city’s development codes is limited, was not able to provide a definitive answer, Dahlquest is heard saying, “So, what I’ll say is based on staff ‘s opinion, this falls within the definition of light industrial and warehousing, and is a permitted use. Or should I not say that?”
“No, that’s fine,” Flower responds.
“Right, yeah, okay,” Dahlquest says. “That’s what I’ll say, based on staff and the city attorney, this is a permitted use and falls within the definition of light industrial and warehousing. I’ll just leave it there unless you want me to say something different.”
“Okay, perfect,” says Flower.
“Well, we’ll have to change the code to take out some of the uses, then,” Dahlquest says.
Later, when it became apparent to those segments of the public who heard the exchange and saw the fashion in which Flower and Dahlquest ad libbed a response to McCormick’s question without any consultation of the actual letter of the city’s code in an effort to uphold the preconceived deeming of the project as falling within the city’s zoning parameters, the city acted to stem the negative publicity and scrubbed that portion of the video from the recording of Thursday night’s council/commission/committee proceedings.
In her remarks, Brinda Sarathy referenced the tier-three thresholds in the greenhouse gas emission assessment contained in the report accompanying the mitigated negative declaration. “Because Upland is the lead agency on this, you actually have discretionary authority in relation to what threshold you use for greenhouse gas emissions,” Sarathy said. “I was quite surprised to see that you chose the industrial threshold for a stationary source, which is a heavy industry threshold of about 10,000 metric tons of CO2 equivalent per year, whereas if you chose the commercial/retail threshold that’s around 3,000 to 3,500 metric tons of CO2 equivalent per year. Elsewhere in the report you actually categorize the project and there’s a lot of comparisons to retail. So, I am quite surprised that the city has used a higher bar in characterizing this project as industry. I talked to the South Coast Air Quality Management District about this. They thought it was quite a fair point and strongly encouraged me to put it into the mitigated negative declaration commentary. So I ask you to please look at that and justify why you have categorized it with a higher threshold.”
With regard to the traffic and air quality studies in the mitigated negative declaration document, Sarathy said, “You use levels of service measures, and you might want to consider vehicle miles traveled. It’s a common measure used in a lot of metropolitan areas, so it is ground tested, and that might give you more accurate numbers. I am deeply concerned about traffic congestion. It’s not simply about widening roads. We’re talking about air quality, idling. What does that mean? A more localized impact. This is a singularly unique type of facility. You can’t simply compare it to a Lowe’s or a Home Depot. This is retail vs. warehouse. This is a semi-logistical hub. So it is incumbent upon you to perhaps go look at facilities such as Chino and elsewhere. There is the whole Institution of Traffic Engineers. This is a recent development in the area. They are trying to figure out how to quantify high-cube warehouse projects. There are even different categories for what high-cube warehouses qualify as, parcel, hub, etcetera. So there’s a lot there. Please, I ask for an environmental impact report.”
David Wade said, “With 1,100 vans going out and coming back, that’s 2,200 trips. We’re talking 3,300 trips, 4,400 trips. We don’t need this kind of traffic running through here. We already have two-hour delivery from Amazon. Why do we need it here to be supporting other cities when we don’t make any sales tax? It is ridiculous. Industrial zoning dos not state anywhere about having a distribution hub or a terminal facility in it, nor does the commercial zoning for Upland. Our planning commission has not been doing a proper job in updating our codes, updating our general plan. I don’t see any benefit from something that’s not zoned properly that’s going to overburden our roads. You put apartments on Central Avenue and now you want to run semis s right by them.”
Wade challenged city officials to seek to find an Amazon warehouse anywhere along Foothill Boulevard in the cities east and west of Upland. “You won’t find one,” Wade said. “It is not the proper place, to be in our commercial corridor. We need to have proper studies and we need a planning commission that’s willing to represent us. It is not about progress. It’s about the best use of that land. Is this really the best use of that land? No local tax. All these environmental issues. More traffic than I even care to try to imagine per day. It’s not a good ideal.”
Marjorie Mikels said, “We have a history here and we are going to put an Amazon distribution center right next to the T & A [adult entertainment venue] and we don’t know all of what is going to be distributed at our front door from Claremont. You’ve got a lot of people out here tonight. We need to go for an environmental impact report. They’re saying we don’t have time and we have to get this in by next August or it just won’t work.  Amazon needs to step up to the plate, and they won’t even come and sign the contracts and you’re going to try to impose on them [conditions]. Who is going to monitor this?”
Lois Sicking-Dieter said, “I have reviewed much of the initial study. I am against this proposed project going forward without an environmental impact report. I find that this report has flawed methodology, used outdated software by 20 years in some instances, indicated generalized conclusions based on an analysis and results not well-defined as to inputs to model, analysis software programs not disclosed. Most raw data output was not included as expected. In my opinion, as an environmental engineer, this initial study does not meet standard engineering best practices, which also leads me to question whether it has been peer reviewed, which is part of due diligence by city planning staff.”
Continuing, Sicking-Dieter asked, “What is the scope of the Bridges fulfillment center project? It is to go on a 50.25 acre vacant lot, which is comparable to 40 football fields.  Also, the project consists of 32 football fields of asphalt or building foundation, which is impervious to rainfall and natural recharging of the groundwater table, and eight to landscaping. There are over 1,100 delivery van parking spaces, which for Amazon is typically a Ford Transit, 20 feet long, which lined up is equal to 4.2 miles of Amazon deliver vans. Amazon has also used a UPS type van which is 36 feet long, which equates to 7.5 miles lined up. That is a lot of vehicles, not counting the 330 employee vehicles and 25 heavy duty trucks. It follows this has an emissions impact and a public health impact. However, Upland city staff signed off on this initial study without conducting a health risk assessment. This is a standard practice to conduct the calculations for how many deaths from cancer and chronic and acute health hazards.”
Sicking-Dieter entreated, “I ask you to direct staff to take the necessary actions for an environmental impact report to be conducted. Furthermore, this environmental impact report needs to be peer reviewed and that review be disclosed.”
Crossner told the Sentinel the environmental review done in conjunction with the mitigated negative declaration was both exhaustive and adequate. “There might be some confusion,” she said. “It was prepared for the city by Kimley-Horn and Associates. Kimley-Horn works with dozens of cities throughout California. The document they generated is four inches thick, double-sided. It has 1,800 pages and ten technical reports, all of the environmental analysis that would have happened in an environmental report. What is in the MND [mitigated negative declaration] is completely comprehensive. No stone was left unturned. You have in it the same technical analysis, traffic, air quality, environmental hazards, every single thing that would be in an environmental impact report. We are going beyond the 20 days this initial study and mitigated negative declaration has to be circulated to 37 days. We are providing the public with every opportunity to see it and to respond. Any questions that are asked, we will respond and update it as needed up to the last minute, every step of the way to make sure this is thorough.”
Crossner emphasized that the studies were done on behalf of the city at Bridge’s expense. She said the project’s opponents were misinterpreting that to suggest the study was skewed in favor of Bridge and the project.
“Kimley-Horn is a reputable firm,” she said. “Third parties looked at the MND. So did the city engineer and city planning. There have been many sets of eyes on the document to make sure it is accurate and thorough. We paid for Kimley-Horn’s work because we didn’t want the city to bear the costs. We paid for the traffic studies.”
Crossner added that Bridge is anxious to become a full community partner in Upland. She said Bridge Development was going to put up $5.7 million dedicated to road maintenance needs throughout the city at a rate of $370,000 annually; $400,000 to beautify, maintain and enhance four nearby parks, with $100,000 going to Cabrillo Park, $100,000 going to Citrus Park, $100,00 going to Baldy View Park and and $100,000 going to Greenbelt Park; $100,000 to each of Upland’s 14 public schools, for a total of $1.4 million; $400,000 to the Upland Police Department to address homelessness; and $50,000 to support local businesses through the Chamber’s Shop Upland initiative. This money would be paid in addition to the $2.25 million Bridge is paying in development fees, Crossner said.
While few Upland residents voiced support for the project, Cable Airport owner Bob Cable did.
Cable said he wanted to encourage the city council and the planning commission “to look at what is best for everyone in the city. They should not be swayed by social media and look at the facts and truth.”
Cable said, “Cable Airport has long had an issue with residential housing being re-zoned from commercial to residential in the City of Upland.  We have certain areas within our traffic pattern that are deemed unwise by the Caltrans Division of Airports to build residential under our flight path. Now we have a project that is appropriate for the current zoning, yet some Upland City Council members and a small group of citizens calling themselves the Upland Coalition of Concerned Citizens are being very vocal on not allowing this project to proceed.”
Cable asked, “So why is the UC3 against this project? That’s a good question, as they really don’t want anything to go in. Unfortunately the small group of individuals are not the ones that will be impacted by any development that goes in. The businesses around it are the only ones that may see a slight increase in traffic, if any at all. Cable Airport will be the most impacted as one of the access roads is the only public entrance to Cable Airport. This can easily be controlled by assurances in a conditional use permit.”
Whereas others are critical of Amazon coming to Upland, Cable said the arrival of the company, one of the largest in the world, will be a boon.
“The word ‘Amazon’ is floating around as a possible tenant for this 201,000 square foot project,” Cable said. “As a result, it seems that the ‘pot of gold’ has arrived for Upland.  None of the Upland Coalition of Concerned Citizens or city council members live next to the project. It’s a shame they don’t. I’m sure they would love all the dust currently produced by the current recycling operation, the vagrants walking down the street leaving trash as they enter the vacant field, the fires that have been started and of course none of their family members or clients have been attacked by any of the ‘vacant field dwellers’ either. Unfortunately Cable Airport has….and if enough demands are made by the City of Upland, the leprechauns that put that pot of gold there may just grab it and run, leaving the land in the state that it is, bad for Upland and bad for businesses that are neighbors.”
Cable said the city was faced with “the Good, the Bad, and the Ugly. The Good: The project is currently within the guidelines of the zoning for the area. It will produce over 300 jobs. There will be over 1,000 trees planted. That may be more than all parks combined in the city. There will be over $10,000,000 in fees and guarantees to the City of Upland, Upland schools and the Chamber of Commerce. The Bad: The project is denied, nothing goes in and the businesses in the area get to continue to live with the problems of fires, vagrants and dust. The Ugly: The project is denied, the property owners sue the City of Upland for denying the project without cause, the developers sue the City of Upland for denying the project with cause and the City of Upland is yet again involved in a multi-million dollar lawsuit.”
-Mark Gutglueck

By Mark Gutglueck
Within the last two weeks, two separate appellate courts, one at the state level and one at the federal level, have made two strikingly different interpretations which may ultimately determine the degree to which the employees of that arm of the government that exists to protect vulnerable children from the cruelty of their parents or the adults overseeing them must intervene and insert themselves into the otherwise private lives of citizens and families to ensure that protection takes place.
The upshot of both decisions taken together, one in a civil matter and the other in a criminal case, is a continuation of the confusion and inexactitude and the wide latitude in standards that critics of the child protection system maintain has allowed children in abusive situations to be killed or suffer irreparable physical and psychological harm.
One of those cases cuts right to the heart of the function of the Children and Family Services Department in San Bernardino County and the ordeal of a social worker who was fired because of what his office supervisors felt was his too-zealous efforts to monitor and protect children living in potentially abusive foster homes. The other relates to a criminal case against four social workers in neighboring Los Angles County whose careers as those dedicated to the protection of children were forever marred more than three years ago when they were criminally charged with not having adequately recognized the signs of child abuse and did not do enough to head off an ultimately fatal situation when they dealt with or supervised others in a situation involving a child who ultimately died at the hands of his parents while living in a household rife with torture, cruelty and starvation.
In the middle of the just-concluded previous decade there were events on both sides of the Los Angeles/San Bernardino County border that encapsulated the dilemma faced by social workers in determining just how diligent or aggressive they can and should be in ensuring the safety of children in a free society.
In 2016 across the county line, the Los Angeles County District Attorney’s Office charged two of that county’s social workers, Patricia Clement and Stefanie Rodriguez, and their supervisors, Kevin Bom and Gregory Merritt, with one felony count each of child abuse/child endangerment and falsifying public records in connection with the May 2013 death of 8-year-old Gabriel Fernandez, who had suffered months of torture and abuse at the hands of his mother, Pearl Sinthia Fernandez, and her boyfriend, Isauro Aguirre.
Los Angeles County District Attorney Jackie Lacey at that point vowed to make cases against neglectful social workers who had been assigned to cases involving children who later died at the hands of their parents or foster care providers. According to children’s advocates, Los Angeles County Children and Family Services case workers were too often ignoring the entreaties of extended family members, neighbors, teachers and other observers that they look into concerns of abusive behavior by adults in households where it appeared that natural or adopted or foster children were being physically abused, emotionally maltreated, sexually assaulted and/or starved. In the case of young Fernandez, a more than two-year-long investigation that concluded in 2016 found that the Los Angeles Department of Children and Family Services had on multiple instances been alerted to the abusive conditions Gabriel Fernandez was subjected to but had not acted to remove him from the situation which ultimately led to his death.
The charges filed against the social workers in the Fernandez death were ones that had the potential of 10-year prison sentences if the accused were to be convicted.
In San Bernardino County, there have been over the years recurrent reports of similar cases involving children’s deaths as well as ones where children had not died, but had been subjected to physical and sexual abuse by their parents or legal guardians, and that the San Bernardino County Department of Children and Family Services had failed and continues to fail to intervene on those children’s behalf.
This state of affairs has flourished, some have charged, because former District Attorney Mike Ramos, who held that office from January 2003 following his 2002 election until January 2019, shied away from prosecuting indolent social workers. Ramos’s reluctance was an outgrowth of Ramos’s concern that filing such charges would establish virtually all of the grounds that would be needed by an individual with standing, such as a surviving family member of a dead child, to launch and prevail in a civil suit against the county that would potentially cost taxpayers millions of dollars.
Going back at least as early as 2013, there were rumblings within the San Bernardino County Children and Family Services Department about both abusive biological parents as well as abusive foster parents entrusted with the care of children who were in the process of being placed for adoption. In several cases, those Children and Family Services Department employees’ concerns were not adequately addressed. Complicating the issue were the confidentiality restrictions imposed on the department’s case files, making it difficult for those with concerns to bring the issues out into the open or to the attention of others outside the department for some means of resolution.
Mary Anna Whitehall was a social worker with the San Bernardino County Department of Children and Family Services. In July 2013, another social worker, Eric Bahra, was assigned to investigate a case in which a nine-month old baby died under suspicious circumstances while living in a foster home. Four older children living in the home were placed in protective custody and, after the detention hearing, Whitehall was assigned to investigate the matter for the resultant jurisdiction/disposition hearing, in a capacity referred to as a “jurisdiction/disposition writer.” During her investigation, Whitehall obtained the police report relating to the child’s death, which corroborated Bahra’s concerns over the safety of the surviving children, and photographs of the home where the baby lived at the time of death, documenting filthy conditions, including feces on the floor. These photographs confirmed Bahra’s description of the house, and a report generated by doctors who examined the four siblings showed ligature marks on the wrists and ankles of the children, together with burn marks. As Whitehall was compending her report on the matter, the deputy director of San Bernardino County Children and Family Services instructed her to withhold certain photographs and instead provide other photographs that had been altered. Whitehall subsequently learned that the Children and Family Services Department never provided a complete police report to the court.
Worried that the court would base its decision on an incomplete and inaccurate picture of the home, Whitehall went to the San Bernardino County Office of County Counsel, the county’s in-house attorneys, and sought out the deputy county counselor assigned to oversee the Children and Family Services Division, providing the attorney with a computer disk containing all the photographs obtained from the police. Shortly after providing this information to the office of county counsel, Whitehall was removed from the case by her higher-ups in the Children and Family Services Department. She was given specific instructions that she should not discuss the case with the new jurisdiction/disposition writer who was brought in to replace her. Whitehall considered this to be highly irregular, given that a jurisdiction/disposition writer ordinarily included into a case report interviews and information obtained from other social workers who have worked on a case. Whitehall at that point learned that Bahra, the original social worker assigned to the matter who was just short of serving out his 12-month probationary period as a county employee after which he would have had civil service protection, had been fired, allegedly for exaggerating the condition of the house and reporting the smell of methamphetamine.
Whitehall knew, however, that the information provided by Bahra had been confirmed by another social worker who had assisted him during the initial response, as well as by the police report. Whitehall knew, as well, that Bahra had antagonized his superiors by raising the issue of inadequate cross-referencing of abuse reports in the department’s computer system.
In the meantime, a new trial relating to whether the surviving children were to remain in the foster home had been ordered on the alleged basis that Bahra had lied, and the case had been assigned to a different judge. All the previously presented evidence had been marked confidential with instructions that the new judge would not view it. Concerned for the safety of the four siblings of the dead baby, Whitehall, Bahra and the social worker who had assisted him during the initial response decided to file a motion to inform the juvenile court that a fraud had been, or was about to be, perpetrated on the court.
Whitehall and Bahra conferred with an attorney they retained, Valerie Ross, and discussed with her the potential liability they ran by proceeding with their plan to inform the court of the full range of circumstances pertaining to the matter. Ross drafted for Whitehall a declaration containing the assertions of fact pertaining to the case as she knew them. The three social workers filed a motion to inform the juvenile court that the San Bernardino County Department of Children and Family Services had perpetrated a fraud upon the court by telling the court that Bahra in his capacity as a social worker had lied and by instructing Whitehall to withhold evidence and provide altered photographs to the court and counsel.
Six days after filing the motion, Whitehall was placed on paid administrative leave for two months. The county’s reasons for placing Whitehall on administrative leave were to initiate an internal investigation regarding her potential violation of county rules and policies barring the disclosure of confidential information to unauthorized persons. The county asserted that social workers, including jurisdiction/disposition writers, are overseen by supervisors and managers who are required to review the underlying case and supporting evidence, and determine whether the recommendations are appropriate.
The Children and Family Services Department further asserted that its supervisors have the final say in determining what evidence to present to the juvenile court and what recommendations to make, based on a memorandum of understanding between the county and what was then the social workers’ union, the San Bernardino Public Employees Association. That memorandum of understanding, the county claimed, delegates such discretionary authority solely to the department’s management. Thus, according to the county, Whitehall’s allegation regarding presentation of photographs to the juvenile court was within the Children and Family Services’ Department’s management’s discretion, and its withholding of the photographs implicating the foster parent in question in the abuse of the children under his care did not constitute fraud as Whitehall, Bahra and the other social worker had alleged in their motion with the juvenile court.
Bahra contested his firing, seeking a hearing before San Bernardino County’s Civil Service Commission. Bahra maintained that he had acted forthrightly and in a good faith effort to fulfill his obligation as a social worker, and that his action was in accordance with the best interests of the children who had been placed into an abusive and demonstrably life-threatening position. His seeking to ensure that others in the Children and Family Services Department were apprised of the situation within the home where the toddler had died and where the welfare of other children had been endangered and might in the future be put at risk was consistent with his function and duty as a social worker, he maintained. Moreover, his participation in the motion to bring those circumstances and the efforts by his supervisors in the Children and Family Services Department to obscure them to the attention of the juvenile court was justified by the consideration that without that relevant information at its disposal, the court would potentially have entered a court order that would have further risked the welfare and lives of the children in question. Bahra further asserted that he had disingratiated himself with the county and his supervisors by engaging in union organizing activity, which he had initiated shortly after he began working with county, most notably in his October 2012 circulation of a petition, which was ultimately signed by eight other Children and Family Service Department employees, protesting the management style of several of the supervisors in the Victorville office where he was assigned. Bahra maintained that while in Victorville he was subjected to a  “hostile working environment.”
Bahra made his case during a 14-day hearing involving 27 witnesses, 2,045 pages of testimony and 89 exhibits in which the county, the Department of Children and Family Services and that department’s administrators and managers offered their version of events, documenting Bahra’s insubordination consisting of his failure to follow the instructions of his immediate supervisors, his defiance of those at higher levels of authority in the department, together with his violation of department protocol and its rules of strict confidentiality. The civil service commission sustained five of the allegations of miscomportment made against Bahra by his superiors, with the hearing officer finding he “had not produced evidence of retaliation” as he had alleged. The hearing officer recommended that the civil service commission uphold Bahra’s termination and deny his appeal. The commission adopted the hearing officer’s report and sustained the Children and Family Service Department’s order of dismissal, but advised Bahra of his right to seek judicial review through a writ of mandamus under California Code of Civil Procedure § 1094.5. Bahra did not seek a writ under section 1094.5, but instead filed a lawsuit.
After Whitehall had been on administrative leave for approximately two months, the county moved to terminate her for violating the county’s confidentiality policy. Whitehall, advised of her pending sacking, resigned to avoid being fired, eventually landing a position as a social worker in Riverside County.
Meanwhile, late in its 2014-15 term, the San Bernardino County Grand Jury had been provided with evidence and information relating to circumstances of apparent abuse of children under the Children and Family Services Department’s supervision. Because those reports arrived so late in the grand jury’s term, no official inquiry into the matter was opened, and the 2014-15 Grand Jury, which had as its adviser Deputy District Attorney Charles Umeda, made no reference to those issues in the final grand jury report, which was released on June 30/July 1, 2015. The grand jury’s annual session runs in accordance with the governmental fiscal year, from July 1 to June 30.
At the end of July 2015, Umeda was appointed to serve as a Superior Court judge by Governor Jerry Brown. To replace Umeda, then-District Attorney Mike Ramos selected Deputy District Attorney Michael Dauber to serve as grand jury adviser.
A member of the 2014-15 Grand Jury was James Wiebeld, who had retired as a sheriff’s deputy after a 30-year career in law enforcement. Wiebeld was a holdover to the 2015-16 Grand Jury, which after its ranks filled out, elected him sergeant-at-arms. Wiebeld sought to have the grand jury maintain its focus on several issues that had been taken up by the 2014-15 Grand Jury, which had in his view not been sufficiently resolved nor reported in the 2014-15 Grand Jury’s report. Among those issues was that pertaining to the abuse of children under the purview of the San Bernardino County Children and Family Services Department.
When Wiebeld and other grand jurors sought to proceed with that investigation, they were met with Dauber’s at first subtle and then progressively firmer and eventually much harsher methods to discourage them, which ultimately resulted in the blunting of the investigation’s focus and its shift away from the nonfeasance, misfeasance and malfeasance within the Children and Family Services Department that allowed the criminal abuse and even deaths of some of the children at the hands of their parents and guardians to take place.
On September 11, 2015, Bahra, represented by Ross, filed a lawsuit against San Bernardino County, the Children and Family Services Department and several of its employees, alleging the county had wrongfully terminated him and had sought to muzzle him to prevent his whistleblowing activity.
On September 25, 2015, Whitehall, represented by Ross, filed a complaint against the county and the Department of Children and Family Services, based on whistleblower liability and retaliation.
In roughly the same time frame, some members of the county grand jury, frustrated with the thwarting of what they considered to be a legitimate and extremely important inquiry, made sub rosa statements to the media in an effort to get Dauber off top dead center. On August 27, 2015, Fox 11 News in Los Angeles reported that “children who were under the supervision of the San Bernardino County Department of Children and Family Services … were being abused, tortured, and killed.” According to that report, put together by correspondent Gina Silva, in certain cases, children had been entrusted to foster parents who had previously been caught abusing children living in their homes. In one of those cases, according to Fox 11, a child had died at the hands of an abusive foster parent after the San Bernardino County Department of Children and Family Services was made aware of the sadistic nature of that foster parent. The Fox 11 News report made reference to an ongoing grand jury investigation. Instantaneously, an issue which county officials had every confidence they might keep buried had leapt into the public spotlight, and was garnering attention at the regional, state, national and international level.
The following day, Friday August 28, a special meeting was convened at the county administrative building which was attended by then-County Executive Officer Greg Devereaux, District Attorney Mike Ramos, the director of the Children and Family Services Department, Marlene Hagen, and a handful of other high level county officials. The primary topic discussed, the Sentinel was told by a reliable source, was the formulation of a cover story and talking points calculated to defuse the issue of negligence in the San Bernardino County Children and Family Services Department which led to the deaths of children in the foster parent system it oversaw.
The county has since officially disavowed that any such meeting took place, or that Devereaux spoke to the district attorney on August 28, 2015 or any other time about the Children and Family Services Department or grand jury matters.
Forthwith, however, county officials in August and September moved to identify those responsible for the leaks that resulted in the foster child deaths becoming public and sought to squelch any further release of information. Grand jurors, whose investigations and proceedings are considered to be confidential and are informed of such and sworn to secrecy when a grand jury is impaneled, were threatened with arrest and prosecution if they violated that oath.
That fall the suits filed by Ross on behalf of Bahra and Whitehall alleging they were pressured to remain silent about what they knew of the abuse of children in the foster system and that when they did not they were retaliated against proceeded apace. Those lawsuits, emphasizing as they did the alleged failure of the Children and Family Services Department to step in and stem the abuse was of moment with higher ranking elements in the county because attorneys had already been in contact with the families of some of the abused children and had initiated cases on behalf of those children and their families or were in the process of doing so.
To District Attorney Ramos, who had striven to remain on favorable terms with both the county’s political establishment and its senior administrators, and to Dauber, who was until Ramos left office in January 2019 answerable to him, Wiebeld’s established status as a grand jury leader able to influence at least a handful of his colleagues on the panel heightened concern that they might be faced with a rogue grand jury that would take the focus on abused and dead children in a direction that could prove monetarily costly for the county. Similarly, the Bahra and Whitehall suits carried with them the threat of exposing the degree to which the county was placing a higher priority on insulating itself from liability with regard to the negligence, indolence or misjudgments of its employees within the Department of Children and Family Services than it was in ensuring the safety of the children that system existed to protect.
Wiebeld was suspected of being Fox 11’s source for its August 27, 2015 report and subsequent follow-ups. District Attorney Ramos accompanied Dauber and a single member of the grand jury to the office of Marsha Slough, who was then the presiding judge of the San Bernardino County Superior Court. Wiebeld, Slough was told, was proving disruptive. Slough subsequently summoned Wiebeld to her office. She informed him that he was an at-will volunteer and that his services were no longer needed.
After Wiebeld was bounced from the panel, Dauber, with some prevarication, told the remaining members of the grand jury that Wiebeld had voluntarily resigned his commission as a grand juror for personal reasons.
Before the grand jury’s term ended on June 30, 2016, six other members of the grand jury who had been sworn in on July 1, 2015 to serve a full year – Robert Turley, Benjamin Royland, Rebecca Fults, Allen Burt, Paul Gorsky and Douglas Kinzle – left, either voluntarily or as a result of having been shown the door. The mass exodus from the grand jury itself was telling: No grand jury in San Bernardino County going back at least to the 1970s had suffered anywhere approaching that number of defections. At last, when the grand jury delivered its final report for 2015-16, it provided a watered-down treatment of fact with regard to the circumstance in the Children and Family Services Department which raised some valid issues, but nonetheless avoided going too deeply into areas that would make public the very real issues relating to shortcomings and failures that led to the perpetuation of abuse and in some instances resulted in death. Such documentation would have opened the county, officials believed, to potential lawsuits from either the family members of the abused or dead children or the surviving children themselves who might be represented by an attorney.
The report noted that social workers with the department did not make a practice of “recording interviews with clients” because “Children and Family Services management was uniformly opposed to the idea of tape recording client interviews… their stated reason for this opposition [being] confidentiality and possible intimidation of the client.” The report stated that “interviews with CFS [Children and Family Services] management revealed that social workers who had observed a parent under the influence did ‘not necessarily’ notify law enforcement or remove the child from the home.”
The report further noted “areas of concern about the relationship between CFS and law enforcement agencies. Interviews with law enforcement officers disclosed areas that potentially hindered investigations. Law enforcement officers disclosed, and Children and Family Services management confirmed, that CFS reports requested by law enforcement are first sent to county counsel [i.e., the county’s in-house lawyers] for review prior to being released. Law enforcement officers stated that Children and Family Services social workers are reluctant to remove abused and neglected children from their homes. Officers further stated that CFS does not always inform investigating officers of the location of a child, which causes delays in investigations.” The report also stated that law enforcement investigators “informed the grand jury that receiving redacted reports from Children and Family Services hinders their investigations” and prevents law enforcement officers from making so-called pretext calls to parents or guardians suspected of sexually abusing children.
According to the report, there were delays in Children and Family Services’ response to the grand jury’s request for information, including one in which it took the department “a period of seven months and 23 days from the date the request was submitted” to provide the information sought.
The report stated, “In interviews with county counsel employees it was stated that CFS is focused on family unification, while county counsel would prefer the safety of the child to supersede family unification. Additionally it was reported by law enforcement officers that Children and Family Services is interested in keeping families together while law enforcement seeks to arrest perpetrators of child abuse.”
The report noted that there was a 15.5 percent rate of employee turnover in the Children and Family Services Department in 2013-14 and a 23.8 percent employee turnover in 2014-15, such that social workers were “overwhelmed” by heavy caseloads.
In the report there was no mention of the deaths of any children who fell under the rubric of the Children and Family Services Department system. Nor did the report make reference to reports received by the grand jury which indicated that social workers who had made an effort to bring incidents of the abuse of children to light had been actively discouraged from doing so.
Desperate to bring about the dismissal of the civil case brought by Ross on behalf of Whitehall alleging higher-ups in the Children and Family Services Department sought to keep the abuse scandal under wraps, the county unsuccessfully sought to have her suit dismissed, asserting Whitehall could not demonstrate a probability of prevailing because her supervisors had authority to dictate the operations of the Children and Family Services Department according to their judgment and were thus immune to her allegation relating their failure to protect children, and that Whitehall had not been subjected to an adverse employment action since she had been placed on paid rathaer than unpaid administrative leave. The county maintained that Whitehall was not eligible to sue because of the doctrine of “unclean hands,” that is, that she had engaged in untoward action of her own, in this case having failed to maintain strict confidentiality with regard to at least one of the cases to which she had been assigned. After the trial court in San Bernardino County denied the motion to dismiss the case, the county appealed that decision to the Fourth District Court of Appeal in Riverside, where a three-member panel of judges consisting of Presiding Judge Manuel Ramirez, and Justices Carol Codrington and Richard Fields unanimously upheld the trial court’s ruling to allow the trial to proceed.
Just a week prior to the release of the grand jury’s final 2015-16 report, after the scandal pertaining to the abuse of children lodged in San Bernardino County’s foster care system had been percolating for months, the California Attorney General’s Office announced it was looking into allegations of failure to act with regard to the abuse of children or criminal negligence by the Department of Children and Family Services.
Then-California Attorney General Kamala Harris at the time said she was on top of the situation in San Bernardino County. With her subsequent departure to the U.S. Senate in January 2017 following the November 2016 election, she has not responded to multiple inquiries from the Sentinel as to what information her investigation had unearthed and what action was to be taken or what measures were being employed to remedy the circumstance. There was no one within the office of current California Attorney General Xavier Becerra who was able to track what the outcome of Harris’s supervision of the inquiry into the matter had produced.
Bahra’s suit was scheduled to go to trial in May 2017, but just ahead of the trial, Bahra and the county were consigned to a mediation. At that point, while within the timeframe during which Bahra could yet do so, Bahra upon consultation with Ross decided to pursue the case in federal court. After filing in federal court, Ross made a motion to have the state court action dismissed.
Bahra’s case in federal court was assigned to U.S. District Court Judge Jesus Bernal in Riverside. The county and the Department of Children and Family Services filed a motion for summary judgment.
On May 18, 2018, Ross and the attorneys for the county, Susan Coleman, Kristina Gruenberg and Mitchell Wrosch, argued the issues with regard to the county’s summary judgment request, in particular Coleman’s, Gruenberg’s and Wrosch’s contention that Ross and Bahra had not followed the 1094.5 administrative procedure. Bernal took the matter under advisement. Just four days previously, on May 14, 2018, a panel of the Fourth District Court of Appeals had ruled in the case of Carl Taswell v. Regents of the University of California. The upshot of the Taswell ruling was that a governmental entity cannot preclude a whistleblower from proceeding with a legal action based on an administrative judgment having previously been entered in favor of the governmental entity against that whistleblower with regard to its having disciplined or fired the plaintiff for activity relating to his or her whistleblowing.
As the Taswell decision had not been entered until after the Ross’s Gruenberg’s, Wrosch’s and Coleman’s briefing on the summary judgment had been submitted, Judge Bernal did not consider it in rendering his opinion and the order in which he found that the civil service commission’s decision precluded Bahra from suing the county. Bernal held that Bahra in essence had his day in court when he was represented by counsel during the civil service commission hearing, had submitted evidence in his favor and had called and cross-examined witnesses.
“As measured by minimum due process, plaintiff received a full and fair opportunity to litigate his claim,” Bernal opined.
Ross, on behalf of Bahra, appealed that ruling to the U.S. Ninth Circuit Court of Appeals, where it was considered by a panel consisting of Judge Susan P. Graber, Judge Marsha S. Berzon, and Judge Morgan Christen.
Ultimately, in their consideration of the matter, Judges Graber, Berzon and Christen, since federal law looks to the law of the state for guidance in what standards are applied in such civil rights and employment cases, took notice of the implication of the Taswell decision, as it had been an applicable element of state law while Bernal was engaged in his evaluation of the county’s motion for summary judgment.
The panel, in a unanimous decision handed down on December 30, 2019 authored by Judge Graber, found that Bahra is entitled to bring retaliation claims against the county under the California Labor Code.
“In California, decisions by administrative agencies typically have preclusive effect, provided that they have a sufficiently ‘judicial character’ and that the elements of claim or issue preclusion are satisfied,” Judge Graber wrote in the 12-page opinion, “But courts will not afford preclusive effect to an administrative decision if doing so would contravene the intent of the California legislature. California courts do not give preclusive effect to the results of agency proceedings ‘if doing so is contrary to the intent of the legislative body that established the proceeding in which [preclusion] is urged.’”
Referencing the Taswell v. Regents of the University of California ruling, Judge Graber wrote, “The California Court of Appeal recently applied the legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under section 1102.5. Accordingly, unless we are ‘convinced’ that the California Supreme Court would disagree with Taswell, we are bound by its holding.”
The Ninth Circuit Court decision clears the way for Bahra and Ross to move forward with Bahra’s suit, which holds the potential for putting on display the degree to which San Bernardino County employees within the Children and Family Services Department shied away from aggressively protecting children when they were confronted with indications that the guardians to whom the county had entrusted those children were or might have been abusing them.
Ross, who was assisted by attorney’s A. Cabral Bonner and Charles A. Bonner in her representation of Bahra, told the Sentinel, “We’re gratified that the Ninth Circuit agreed with our position on the law and we are looking forward to taking this matter to trial.”
A week after the Ninth Circuit Court’s ruling in Bahra’s case advancing what some perceived and others hoped would be an examination of the inadequacy of the protection afforded children in vulnerable circumstances in California, Southern California and San Bernardino County, a panel of the California Second District Court of Appeal in a split decision directed the Los Angeles Superior Court to dismiss child abuse/child endangerment and record falsification charges against Los Angeles County social workers Patricia Clement and Stefanie Rodriguez and their supervisors Kevin Bom and Gregory Merritt in the killing of Gabriel Fernandez.
“We conclude that the petitioners never had the requisite duty to control the abusers and did not have care or custody of Gabriel for purposes of Penal Code section 273a, subdivision (a) [child endangerment]. We further conclude that the petitioners were not officers within the meaning of Government Code Section 6200 [falsifying public records],” wrote Justice Francis Rothschild on behalf of himself and Justice Gregory Weingart.
Judges Rothschild and Weingart ruled that the two social workers and their supervisors had not abused young Fernandez in the sense that his mother, Pearl Sinthia Fernandez, and her live-in boyfriend, Isauro Aguirre, had.
Rothschild and Weingart further held that Rodriguez, Bom, Clement, and Merritt did not qualify as either elected or appointed officers, and as such could not be charged under Government Code Section 6200 relating to the falsification of records by a public officer.
Judge Rothschild wrote that “Clement and Merritt contend that they were not ‘officer[s]’ within the meaning of Government Code Section 6200. We agree. Government Code Section 6200 does not define the term, ‘officer.’  Courts have construed the term to mean one who holds a position ‘ “created by the Constitution or authorized by some statute” ’ and who is ‘ “clothed with a part of the sovereignty of the state to be exercised in the interest of the public.” ’ The California Constitution establishes three county officers—sheriff, the district attorney, and assessor—and the Legislature has enacted a list specifying ‘[t]he officers of a county.’”
According to Judge Rothschild, as employees of the Los Angeles County Department of Children and Family Services and not of the sheriff, district attorney or assessor, Rodriguez, Bom, Clement, and Merritt were neither officers nor their deputies. “Because the petitioners are not officers within the meaning of Government Code Section 6200 as a matter of law, the charges of violating that statute must be dismissed,” according to Judges Rothschild and Weingart.
Judges Rothschild’s and Weingart’s colleague on the Second District Court of Appeal panel, Judge Victoria Gerrard Chaney, concurred that because of precedent case law, Rodriguez, Bom, Clement, and Merritt could not be charged with nor convicted of child abuse or child endangerment per se. Nevertheless, she wrote, as social workers employed by the Children and Family Services Department, the social workers and their supervisors qualified as public officers whose failure to document the abuse which ultimately proved fatal to young Fernandez while they were functioning in the capacity of the custodians of those public records was tantamount to falsification.
Judge Chaney referenced the case of People v. Heitzman, in which charges of criminal neglect were dismissed against a daughter whose indifference to her ailing father’s condition ultimately led to the father’s death, which Judges Rothschild and Weingart in part relied upon as case law in making their ruling.
“I agree that People v. Heitzman precludes petitioners’ prosecution under Penal Code Section 273a,” Judge Chaney wrote in her concurring and dissenting opinion. “However, I view the application of Heitzman here as falling squarely within the category of unintended consequences Justice Baxter identified in his Heitzman dissent. The People have alleged facts that, if proven, would suffice to show that Rodriguez, Bom, Clement, and Merritt did not merely permit Gabriel’s mother and her boyfriend to murder Gabriel, they enabled it.  By abdicating their responsibilities and falsifying documents, these social workers prevented the system from working and prevented anyone else from rescuing Gabriel.”
The Second District Court of Appeal ruling directed the Los Angeles Superior Court to dismiss the pending charges against Rodriguez, Bom, Clement, and Merritt. Thus, it does not appear that the failures of a social workers to actively follow through to ensure that further investigation or preventative measures are taken when indications of the abuse of children manifest will likely result in future criminal prosecutions. Nevertheless, the ordeal endured by Rodriguez, Bom, Clement, and Merritt over the last three years will quite possibly serve as a hedge against social workers ignoring obvious signs of child abuse that they encounter in the field.
In November 2018, in an effort to protect 545 case workers employed within the San Bernardino County Children and Family Services Department, the union that now represents those workers, Service Employees International Union Local 721, officially entered into a so-called “side letter agreement” to the union’s memorandum of understanding relating to county workers’ pay, benefits and working conditions with the county that was intended to limit the workers’ case loads to prevent them from being inundated with cases that might overwhelm their ability to detect abuse of the sort that could put the children they are responsible for in danger.
On November 6, 2018, the San Bernardino County Board of Supervisors unanimously ratified the side letter agreement with a unanimous vote. San Bernardino County Chief Executive Officer Gary McBride, who participated in negotiating the side letter agreement with Service Employees International Union Local 721, told the board of supervisors, “The memorandum of understanding included the establishment of a children and family services labor management committee that is dedicated to increasing the overall number of case-carrying social service practitioners within the Children and Family Services Department, reducing the average level of cases and referrals assigned to the Children and Family Services social service practitioners, and assigning caseloads more equitably so that social service practitioners will not have significantly higher caseloads than other workers on the same type of assignment performing similar tasks.”
McBride asserted that the “side letter agreement will establish caseload management controls in an effort to equitably distribute caseloads. A quarterly caseload analysis will be used as a mechanism by which caseload inequities are identified, analyzed, and plans for reallocation of staff and/or cases are developed for implementation. In pursuit of this, staff and/or cases may be reassigned within and between offices and regions to achieve an equitable balance provided. However, there shall be no disruption of the services plan for the child. Further, the parties also agreed that management shall ensure that there is a system in place for monitoring each social service practitioner’s individual caseload and for assigning new cases to assure equitable distribution of cases in pursuit of caseload goals. In situations when caseloads exceed the caseload goals, the parties have developed a process by which to resolve the caseload distribution.”
Without anyone directly saying so, the effort toward limiting the social workers’ case loads was aimed at preventing them from being swamped with cases that might overtax their ability to detect abuse of the sort that could put the children they are responsible for in danger, and leave them and the county open to charges that children being looked after in their system are being neglected.
Ross is continuing to pursue Whitehall’s case in Superior Court. In her effort to provide as full of a rendering of the facts as is possible, Ross filed a motion in San Bernardino County Juvenile Court for the release of records to be used at trial in the Superior Court. After the Juvenile Court denied that motion, she took the matter up on a writ of mandate to the Fourth District Court of Appeal. The Fourth District Court of Appeal summarily denied the writ of mandate, providing no reason for doing so. Ross than took it up to the California Supreme Court for review and the California Supreme Court granted her petition and sent it back to the Court of Appeal with instructions that the county was required to file a brief, referred to in legal parlance as a return, and Ross would have until January 13 to file her opposing response, called a traverse. The Fourth District of Court of Appeal is to then make a final determination as to whether the documentation provided to the juvenile court with regard to the situation in the foster home which had originally raised Bahra’s concern for the welfare of the surviving children and which then triggered Whitehall’s reaction to back him in the effort to bring those conditions to the attention of the juvenile court should be released so it can be considered by the trial court. Once that determination is made, there appear to be no further obstructions to Whitehall’s case proceeding to trial.